国連人権システムの現状と役割に関する一考察-ECおよび欧州人権条約との関連において-

Two issues are discussed: the first one relates to the relations between the organs of the European Convention on Human Rights (ECHR) and the UN Human Rights Committee (UN Committee) set up by the UN Covenant on Civil and political Rights (CCPR), and the second one concerns the relationship between EC and CCPR.<br>1. On the first issue<br>The EC Member States are all Contracting Parties to ECHR, which is ratified by 26 European countries (as of January 1991). Most of these countries are also signatories of CCPR, and 15 of those signatories also ratified the Optional Protocol thereto (OP).<br>Article 5 (2) (a) of OP only prevents the UN Committee from examining a communication while another process of international investigations, such as the one in the organs of ECHR, is being conducted. On the other hand, according to Article 27 (1) (b), the European Commission of Human Rights (the Commission) is altogether barred from considering a complaint previously lodged with UN Committee unless new evidence has been produced. It is, therefore, possible that the same matter already considered by the Commission is under examination by UN Committee.<br>To avoid this, 12 of the ECHR Contracting States have made reservations which further preclude examination by UN Committee of individual communications where the same matter has already been considered in the procedure under ECHR.<br>But the problem arises concerning whether a consideration in the procedure under ECHR includes considering even admissibility of the case or only the merits. The latter view should be supported, although the majority of UN Committee members are in favour of the former view. The reason is that better protection of individuals' human rights should be more favoured than preserving the authority of the organs of ECHR.<br>2. On the second issue<br>The Court of Justice of EC adopts the “guideline” approach, which means using international treaties on human rights, including ECHR, CCPR and so forth, as a ‘catalogue’ of human rights for EC, which is lacking in its own one despite the supranational character, EC is not under the authority of UN Commission, since EC as such is not a Contracting Party to them, although 8 Member States of EC are Contracting Parties to CCPR and OP.<br>The problem arises, however, when national authorities of the EC Member States implementig EC provisions violate certain human rights enshrined in CCPR. The solution is that the EC Member States which ratified both CCPR and OP should not be able to escape their obligations under them simply because they transferred part of their powers to EC. This opinion leads to the idea that EC is indirectly responsible before UN Committee to that extent.<br>UN ought to play a complementary but active role in protecting human rights of individuals in Europe.