The International Covenant on Civil and Political Rights and United Kingdom Law

By David Harris; Sarah Joseph | Go to book overview

In this context, four recent dissenting opinions in communications dealing with different issues, namely Pauger v. Austria (415/ 1990), Sprenger v. Netherlands (395/ 1990), Oulajin and Kaiss v. Netherlands (406 and 426/ 1990), and Ominayak and the Lubicon Lake Band v. Canada (167/ 1984)120 must be read as favouring a more or less broadly spelled-out margin of discretion either in the implementation of equality before the law in social-security legislation (Article 26), or in the protection of the cultural rights of a minority (Article 27).

Similar considerations also transpire from a recent inadmissibility decision in J. H. W. v. The Netherlands (501/ 1992), in which the Committee concedes that 'social security legislation usually lags behind socio- economic developments'.121 The implication is that in this particular area, states parties do retain some discretion in setting up timetables for the progressive elimination of unequal treatment.

Whether this issue will be spelled out in more detail must remain, as of 1994, a matter of speculation. In O.S. et al. v. Finland (431/ 1990), where issues under Article 27 of the Covenant raised by the applicants, Sami reindeer breeders, were to be balanced against other, more general, economic interests of the state party, and where margin-of-appreciation considerations might have arisen, the Committee could avoid the issue by reversing its earlier decision on admissibility.122


CONCLUSION

The European Commission and Court of Human Rights and the Human Rights Committee have developed into the most prominent and by far the most experienced bodies supervising the implementation of international and regional human-right standards. The jurisprudence of these bodies has succeeded in clarifying the scope of those--mainly civil and political-- rights protected under the European Convention and the Covenant, and contributed to a better protection of those rights at the national level.

The decisions of both bodies have begun to influence the jurisprudence of some of the highest domestic tribunals world-wide: this has been true for many years for the judgments of the European Court, but it is a far more recent phenomenon for the Human Rights Committee's decisions.

In the early years, the European instances led the way in developing a substantive body of jurisprudence on the rights enshrined in the ECHR. For the past fifteen years, the Human Rights Committee has been

____________________
120
Individual opinion(s) of Ando in Pauger (415/ 1990), and Lubicon Lake Band (167/ 1987), of Messrs Herndl, Ando and Ndiaye in Sprenger (395/ 1990), and Oulajin/Kaiss (406/ 1990).
121
Para. 5.2.
122
Paras. 8.2-8.3.

-658-

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