Newsportal - Ruhr-Universität Bochum
Right to procedural protection and due process
Citizens of Germany enjoy many rights that protect them from the state. Any time the state wants to interfere with rights, people have the right to be heard and to present their point of view. The authority that ultimately decides on the matter must also justify its decision to the citizen concerned. The Administrative Procedure Act implements a highly valuable good guaranteed by the constitution. The extent to which the right to procedural protection and due process can also be derived from international human rights treaties is the subject of Benedikt Behlert’s doctoral thesis at the Institute for International Law of Peace and Armed Conflict and the Faculty of Law at Ruhr-Universität Bochum (RUB). The RUB’s science magazine Rubin reports on his study.
The starting point of his analysis dates back to 1997, when the Committee on Economic, Social and Cultural Rights – a body that monitors compliance with specific provisions of international law – stated that appropriate procedural protection and due process were essential aspects of all human rights. “At the time, this statement was made without substantiation or footnotes, and the Committee was in no position to refer to explicit human rights provisions either,” says Benedikt Behlert. He is therefore interested in whether the right to appropriate procedural protection and due process does in fact arise from international human rights law and where its legitimate legal basis lies. To this end, he takes a close look at the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. “Both enjoy virtually universal acceptance, around 170 states are parties to them,” explains Behlert. “Many human rights are covered by these covenants, for example the right to education or work, the right to freedom of expression or the right to participate in cultural life.”
Interpretation of international law not legally binding for states
The Committee on Economic, Social and Cultural Rights and the UN Human Rights Committee monitor compliance with these rights. They interpret and apply the legal provisions of the two covenants. The crux of the matter is that while the covenants themselves are legally binding for states, the interpretations and decisions of the committees are not.
Benedikt Behlert intends to find out to what extent procedural protection and due process are anchored in the covenants and ultimately ensured. The Bochum-based lawyer worked not only through the legal texts of the covenants, but also through the 62 so-called General Comments, in which the two committees set out their legal opinions on the rights contained in the covenants, as well as many other related documents. He came to the following conclusion: they do indeed not infrequently contain the statement that appropriate procedural protection and due process are an essential component of human rights. “But even when I read all documents, I still don’t understand from a legal point of view why exactly this should be the case,” admits the researcher. The statements are not properly justified by the committees. What does “appropriate protection” mean? And why is this protection an essential component of all human rights? These questions remain open.
A well-reasoned argumentation makes human rights more robust
Benedikt Behlert has set out to answer these questions. “If human rights postulates are well founded and legitimately derived, states have fewer opportunities to disregard them,” he explains. “This is particularly important at the moment, as human rights are once again under attack from various quarters.” The researcher is currently setting up a legally sound argumentation and developing criteria for how adequate protection might be defined in relation to various human rights. He expects to publish the findings as part of his dissertation in 2022.
Institute for International Law of Peace and Armed Conflict
Phone: +49 234 32 27387
12 October 2021