Natalya Matskevich

It is difficult to imagine the reasons for such a legislative initiative in line with legal logic. The Optional Protocol (hereinafter referred to as the Protocol, editor's note) to the International Covenant on Civil and Political Rights (hereinafter referred to as the Covenant, editor's note) is one of the instruments for implementing the Covenant. The Covenant recognizes certain human rights and the obligation of states parties to respect and ensure these rights.

Belarus's adoption of the Optional Protocol in 1992 provided citizens with a means of protecting their human rights at the international level. It is implemented by appealing to the Human Rights Committee (hereinafter referred to as the HRC, editor's note), if the state, as the individual believes, has not provided protection to one's rights in the domestic legal system. This is a common practice: many states delegate such competence to international courts and quasi-judicial bodies and benefit from their assistance and advice in order to fully fulfill their obligations to the international community and their citizens and improve the human rights situation within countries. Currently, 116 states are parties to the Protocol to the Covenant.

The Constitution of Belarus, adopted in 1994, enshrines the right of everyone to apply to international bodies for the protection of human rights (Article 61). This guarantee remains in the current version of the Constitution.

Belarus has ratified other human rights treaties at the UN level (the Convention against Torture, the Convention on the Rights of the Child, etc.), which also have their own control bodies - committees competent to receive and consider individual complaints. From this point of view, in order to strengthen the protection of human rights for the state, taking advantage of its sovereignty and implementing constitutional guarantees, it would be more logical to recognize these powers for other UN committees, rather than abandon those that have already been recognized. That is, it would be correct not to narrow, but, on the contrary, to expand the possibilities of protecting human rights for citizens under the jurisdiction of the state.

However, as we see, the situation is unfolding in the opposite direction, and I cannot comment on the considerations of those who initiated this process. Perhaps we will see some kind of legal justification for this bill beyond the standard "in order to improve legal regulation"...

After parliament ratified the Protocol in 1992, a significant number of complaints from Belarus were submitted to the HRC (about 200 complaints have already been considered). Belarus is not a member of the Council of Europe, so filing a complaint against the state with the European Court of Human Rights has never been available to us. Accordingly, the efforts of human rights defenders and international protection lawyers have focused on the HRC.

And it must be admitted that Belarusian lawyers have developed significant expertise in this area. Complaints filed from Belarus, the vast majority of cases are considered acceptable, and in most of them the HRC found violations of rights under the Covenant and required the state to take measures to restore rights and/or compensate for these violations. Some decisions of the HRC contain specific recommendations for changing legislation.

The state, in different periods, positioned itself differently in these communications. At first, it submitted its objections to the complaints, that is, it participated in the adversarial procedure, as provided for in the Protocol. At the turn of the 2000s and 1900s, the concept of refusing even correspondence with the HRC suddenly appeared, and for several years the state declared that it did not recognize the rules of procedure according to which the HRC operates, would not participate in the procedure and would not recognize the final considerations of the HRC.

But after the post of special rapporteur of the Human Rights Council on Belarus was introduced in 2012 (including for the reason that the state has refused to cooperate with UN bodies), a period began when Belarus again began to direct its objections to individual communications. Although, the attitude towards the final considerations of the HRC has hardly changed: the state has actually never implemented any of them, citing their advisory nature.

Why has a new twist occurred now? I don't want to guess. Perhaps, in the current situation, the flow of complaints to the HRC from Belarus has increased significantly. Taking into account the previous practice of considering complaints, one can already understand what violations will be recognized as violations of human rights and in what quantity - violations of the right to freedom of expression, freedom of peaceful assembly, the right to a fair trial, the right to participate in public affairs, arbitrary detention, cruel inhumane treatment. In particular, because complaints of a strategic nature are filed, which show a complex of violations that stems from general unlawful practices and from legislation that does not comply with the Covenant, these complaints are almost impossible to substantively object to from the point of view of international law, as I see it. And the decisions of the HRC taken over time on these complaints will show the full scale of what has happened, starting since the spring of 2020.

However, it is obvious that such a step - the elimination of one of the important UN human rights mechanisms for our citizens - does not solve the problem. What needs to be eliminated is not the consequence – the presence of complaints by Belarusians to the Human Rights Committee, but the cause – the violations of human rights by the state themselves. Those rights that the state has undertaken to respect and ensure under the Covenant (and the Covenant itself is not subject to denunciation) and under the Constitution. This is precisely the task of a state that obeys the rule of law, which the Republic of Belarus proclaims itself to do according to the Constitution.

In addition, other mechanisms operate at the UN level: special procedures (special rapporteurs and working groups), the Universal Periodic Review, the procedure for submitting periodic reports under the Covenant and other UN conventions, from which one cannot "unsubscribe". They will continue to perform their functions and evaluate the state's actions to fulfill international human rights obligations, including on individual communications.

Finally, all complaints submitted to the HRC before the end of the denunciation procedure will be examined and, if found admissible, communications will be made. And the state cannot in any way legally free itself from the obligation to fulfill these decisions, as well as all those previously adopted. Moreover, decisions of the HRC have no statute of limitations.

All this cannot but be understood by lawyers who know at least the basics of international law. And if any of them can influence the processes currently taking place in parliament, then they need to have the courage to do so. After all, the denunciation of a universal human rights treaty can be a serious blow to the reputation of the state. Judging by the history of international relations, this is an extraordinary situation.

Even government officials of the Russian Federation, which has been excluded/withdrawn from the Council of Europe, state that Russia nevertheless recognizes all its obligations under the universal human rights treaties adopted within the UN. Literally in December 2021, the plenum of the Supreme Court of the Russian Federation adopted a resolution in which it indicated that the conclusions of the HR Committee and the Working Group on Arbitrary Detention of the UN Human Rights Council are sufficient reason and basis for the prosecutor to issue a decision to initiate proceedings due to new circumstances. That is, the legal force of the decisions of these bodies is recognized at the level of the judicial system of the Russian Federation.

Lithuania, with which Belarus has a much longer common legal history than with Russia, certainly recognizes the competence of the HRC, and it has created mechanisms for the full implementation of HRC decisions.

From this point of view, the position of the Deputy Foreign Minister of Belarus Ambrazevich expressed at the Beijing Forum that "the attempt to universalize the concept of human rights through the creation of international treaties actually failed" (Source) looks, to put it mildly, strange. The concept of human rights is universal in nature because a person remains a person no matter where he/she is born and lives. And a system that protects human rights can "fail" only when it is destroyed by the very states that, let me remind you, created it in the first place.

Article 12 of the Optional Protocol contains the procedure and consequences of its denunciation. After going through the internal denunciation procedure (adopting the law), the Ministry of Foreign Affairs sends a note verbale to the depositary - the UN Secretary General. The denunciation shall take effect three months from the date of receipt of this notification by the Secretary-General. Denunciation shall not prevent the continued application of the provisions of the Protocol to any communication submitted in accordance with Art. 2 of the Protocol until the date of entry into force of the denunciation.

Therefore, now and for another three months after registration of such a notification by the office of the UN Secretary-General, citizens and their representatives can submit their written communications to the Committee for consideration. Submitting means sending by email and ensure that the message is received by the Petitions Team. Receipt is confirmed by automatic email. Receipt must be distinguished from registration, which is carried out by decision of the HRC Special Rapporteur on new communications and urgent measures, and may be significantly later than the date of the receipt.

I think that those complaints that are already ready to be sent should be sent quickly. But the quality and validity of the complaint should hardly be neglected, because if additional questions arise about it, then the date of submission of the complaint may no longer be the original date, but the day the applicant sent answers to such additional questions.

In the future, when the denunciation comes into force, the HRC will no longer be able to receive and consider individual communications, since the HRC has such competence in relation to a particular state only by virtue of the state's participation in the Protocol.

The provision of periodic reports on the implementation of the Covenant by the state is a condition of the Covenant itself. That is, this obligation does not end with the denunciation of the Protocol. Special rapporteurs are not treaty mechanisms at all. They are appointed by the UN Human Rights Council, which by its resolution gives a specific mandate to each of them. Therefore, the denunciation of the Protocol does not affect their work in any way, except that, I predict, they will have more of such work in relation to Belarus.

The duty of lawyers to use all available legal means when defending clients also does not change. Yes, the range of tools is narrowing, and the complaint to the HRC may no longer be available (although we would like to hope that it will not come to that). But the norms of the Covenant, which is valid in any case, are part of the domestic legal system (this is confirmed by the Constitutional Court in its decisions), and even more so the norms of the Constitution are applicable, which contains almost the same catalog of rights as the Covenant and recognizes the priority of generally recognized principles of international law, among which is the principle of fair execution of international treaties. Therefore, argumentation based on human rights is an acceptable and necessary legal tool. I don't know if there is a general "methodology" for defence, but those who have used these arguments likely won't abandon them, as well as the use of other UN mechanisms, if appealing to the HRC becomes unavailable.