The Spanish Supreme Court has established that the views expressed by UN Human Rights Treaty Bodies in individual complaints are binding on the State. This is not the first time that Spain’s Supreme Court sustains this position. In fact, I wrote a piece for EJIL Talk in August 2018 that began exactly like this blog today. However, in 2020 the Supreme Court appeared to retrace its steps. Now, they are at it again.
2018: Compliance with Treaty Body as a matter of Rule of Law.
Ángela González Carreño had a particularly awful experience of domestic violence. Her daughter was killed by her father in an unsupervised visit. The UN Committee on the Elimination of Discrimination Against Women (CEDAW Committee) ruled that Spain was responsible for the violation of Ángela González Carreño’s rights. In 2018, The Supreme Court ordered a financial compensation of €600,000 on the basis of the CEDAW Committee’s decision, which dated from 2014 (Case 47/2012). See details of the cases in front of the UN Committee and the Supreme Court in my blog post.
The Supreme Court reminded Spanish authorities that, as a matter of international law, they “shall give due consideration to the views of the Committee” (Article 7(4) of the Optional Protocol to CEDAW). The Spanish Constitution establishes that international treaties are part of the domestic legal order, and that the constitutional bill of rights must be interpreted in light of international human rights law (Articles 96 and 10(2) of the Constitution). The Supreme Court added that compliance with UN Treaty Body decisions is a matter of Rule of Law: The inexistence of a specific procedure to execute the views of the CEDAW Committee would constitute a breach of a legal and a constitutional mandate (Judgment 1263/2018, of 17 July, summary here in English).
2020: Backtrack, Geneva is not Strasbourg.
The question of the binding nature of UN Treaty Body decisions was brought to the Supreme Court’s attention again in 2020. This time it concerned the views of the UN Human Rights Committee in a case concerning the right to an appeal in criminal matters, recognised in Article 14(5) of the International Covenant on Civil and Political Rights (Case 1381/2005, views of 2007).
In February 2020, a special chamber of the Supreme Court went back to the position it had maintained before González Carreño case less than two years earlier: According to Spanish law, only judgments of the European Court of Human Rights are directly applicable and binding, reinforced by Article 46 of the European Convention on Human Rights, and UN Treaty Body decisions on the merits cannot be assimilated to rulings from Strasbourg (Judgment 1/2020, of 12 February; here in Spanish). A decision from the UN Human Rights Committee does not provide grounds to challenge res judicata.
2023: Treaty Body decisions are now (somehow) binding (again).
However, in November 2023 the Supreme Court heard the case of Rubén Calleja and his parents, who had challenged Spanish authorities’ decision to enrol Rubén, when he was a minor, in special education because of his Down syndrome. In Case 41/2017, views of 2020, the UN Committee on the Rights of Persons with Disabilities (CRPD) found Spain in breach of several articles of the UN Convention on the Rights of Persons with Disabilities particularly in relation to the right to inclusive education and the prohibition of discrimination.
Domestic courts refused to implement the CRPD’s views based on the notion that Treaty Body decisions are not sufficiently strong on their own to obtain compensation.
But when the case was heard by the Supreme Court, with a four to one majority, the third chamber recognised that there is no procedure in Spanish law to give effect to UN Treaty Body decisions as such (Judgment 1597/2023, of 29 November 2023, search engine in Spanish). Yet, the Supreme Court also ruled that international decisions can provide the foundation to seek compensation from the State. The González Carreño case was not a one-off. In fact, the Supreme Court echoed the arguments used in 2018, ignoring the scepticism expressed in 2020 as well as in previous jurisprudence of both the Supreme Court and the Constitutional Court.
In this new judgment, the Supreme Court established that Spain voluntarily signed up and ratified the relevant treaty, public authorities are bound to adopt the necessary measures to fulfil the rights contained therein, international treaties are part of domestic law, and the constitutional bill of rights must be interpreted in accordance with international human rights law. The Court went far as to suggest that the hierarchical position of Treaty Body decisions may be very high indeed:
“International obligations related to the execution of decisions by international monitoring bodies whose mandate has been accepted by Spain form part of our internal legal system, once they have been incorporated in the terms of Article 96 of the Constitution, and they enjoy the hierarchical status that both this article –above the law– and Article 95 –below the constitution– confer them.” (My own translation, Legal Foundation No. 7).
The significance of the case.
In an unusual statement, in 2018 the CEDAW Committee said that the Spanish Supreme Court’s decision in the González Carreño case had set “a milestone for international human rights law”.
Since then, however, the Spanish judiciary has zig-zagged about the binding nature of international decisions on individual cases.
Given the ambivalence, it is too early to tell where things stand exactly. Having said that, the 2023 decision fortifies the position expressed in González Carreño in 2018. On this basis, the absence of a domestic legal procedure is not enough reason or excuse for the State not to give effect to a Treaty Body finding of a human rights violation. A Treaty Body decision can in fact provide sufficient foundation to obtain compensation in the case of wrongdoing from the State.
The case is most significant for the country in question, Spain, which has accepted individual complaint procedures under all eight UN Treaty Bodies.
However, the significance of the case exceeds national boundaries. The expansion of this interpretation to other jurisdictions could affect the level of State observance of international human rights. Ullmann and von Staden estimate that compliance with UN Treaty Bodies ranges between 19% and 39%, while it is no more than 60% for the European Court and as low as 14% for the Inter-American Court.
These numbers are far from impressive, but it remains to be seen whether a change in domestic judges’ treatment of UN decisions would result in a more robust international human rights system.
One could guess that such would indeed be the effect, namely, that judicial enforceability domestically would strengthen international monitoring. Still, one also needs to be mindful of potentially unintended consequences. In relation to more politically delicate issues, could the approach result in even more backlash against international human rights law in some countries? Even in less sensitive cases, we must remember that OHCHR Petitions Unit is chronically understaffed and underfunded, they do not have the resources or the mandate to visit States and carry out extensive legal and policy research. Committee members are not judges and UN officers are not clerks. Furthermore, if their decisions were binding, one could fear a less ambitious and more conservative turn from Treaty Bodies.
Finally, whenever they find a violation, in addition to recommendations pertaining to the specific case, Treaty Bodies often include recommendations of more general nature with law and policy changes that could, hopefully, prevent similar cases from happening in the future. Usually, these recommendations use similar language to that of country reports (concluding observations). In my opinion, these general law and policy recommendations cannot be considered directly binding. States should engage in good faith and respond meaningfully in a constructive dialogue. But policy processes have their own cycles, multiple layers of government may be affected, and quite simply no recommendation written with the best intentions in Palais Wilson should overrule immediately a national democratic mandate. General recommendations do matter greatly, but not as a matter of law, but because they can provide a helpful set of priorities and proposals for civil society and policy actors to rally behind.
