The United Nations Human Rights Treaty Body Reform Martin Scheinin© European University Institute Turku/Åbo, 17 August 2011

UN human rights reform: from the Commission to the Council GA resolution 60/251 (15 March 2006) The Council is established as a subsidiary organ of the GA, review now after 5 years, in 2011 disappointing lack of ambition (=status quo) Universal periodic review – potentials and problems Assumed the mandates & mechanisms of the Commission At least 10 weeks of sessions per year plus UPR sessions etc. much more intensity and resource demands 47 members; fixed regional quotas, elected by GA, rotation of members (3+3 yrs); suspension by 2/3

Human Rights Instruments The Universal Declaration (1948) The Covenants of 1966 Covenant on Civil and Political Rights Optional Protocol (complaints procedure) Second Optional Protocol Covenant on Economic, Social and Cultural Rights Optional Protocol on complaints Specialized Treaties CERD, CEDAW, CAT, CRC, CMW Disappearances Convention and Disability Convention 2006 Regional Human Rights Treaties ILO Conventions

Monitoring Mechanisms under the treaty body system Treaty Bodies Note: the CESCR as an exception (“resolution body”) Periodic Reporting Mandatory Similarities and differences Inter-State Complaints Individual Complaints General Comments/General Recommendations Inquiries and on-site inspections

The ten treaty bodies CERD: racial discrimination CESCR: economic, social and cultural rights CCPR: civil and political rights CEDAW: women’s rights CAT: torture and related practices SPT: subcommittee on prevention of torture CRC: rights of the child CMW: migrant workers and their families CRPD: persons with disabilities CED: enforced disappearances

The Reporting Procedure Periodicity – the Reporting Cycle Preparation, submission, translation and issuing, list of issues, oral consideration, concluding observations, follow-up response Optional LOIPR procedure Points of entry for NGOs Hearings before submission on the domestic level; before list of issues and before oral consideration at the UN More emphasis on follow-up HRC: follow-up submission on selected issues in 12 months Consideration of situations in the absence of a report Either with or without a government delegation Aims at facilitating the submission of an overdue report

The Reporting Cycle Oral Consideration NGO briefing Concluding Observations List of Issues Official NGO hearing Implementation and Follow-up by the HRC Shadow reports Issuing Submission National Preparation of Report (federal procedures, NGO hearings)

Points of entry for NGOs On the national level before submission Hearings or written consultations Before list of issues Shadow reports + possible oral hearing Before the oral consideration of a repor Last-minute briefing During the actual dialogue A watchdog role, accompanied with publicity In follow-up NGO submissions possible, at national level and to TB NGO materials are now made publicly available OHCHR website – ”Sessions” of most TBs CRC and CEDAW have somewhat different approaches

Role of National Human Rights Institutions The Paris Principles do not establish a uniform model Reporting and state responsibility relate to states, not governments (the executive or the present regime): NHRIs are state institutions Within or outside the government delegation? If within, in an independent expert capacity. If outside, with different status than NGOs

Reporting guidelines Each TB has its own guidelines, better coordination is on its way through the treaty body strengthening process Technicalities: periodicity etc. Normative guidelines: the substantive treaty provisions + general comments Structure: article by article Empirical data, including statistics and their disaggregation according to gender etc. Project on human rights indicators Cross-cutting issues: positive obligations, vulnerable groups, restrictions, remedies etc.

Sources of information The previous reporting round (summary records, concluding observations, follow-up) and any individual cases The state party report to be considered Material from other treaty bodies, in particular concluding observations and cases Other UN material (special rapporteurs, specialized agencies, etc) Material from regional human rights mechanisms Material from well-known (international) NGOs Material from other governments (US state department), other (national) NGOs and the media

Governmental agendas in the reporting procedure Defending national law and the regime Reporting is often seen as a burden Internal human rights audit Expert body seen as an external evaluation Tool for change Self-criticism, identification of priorities International promotion of best practice Possible only through critical self-assessment and transparency Governments are seldom monolithical

Agendas of other actors Promotion of human rights International and national NGOs Improvements on the national level Shaping the international HR agenda Disclosing human rights violations NGOs, victims, families Political motives Publicly embarrassing the regime

Form and legal nature of concluding observations Positive aspects Concerns and recommendations ”Concern” (with or without adjectives) ”Incompatible” or even ”violation” Dimensions of law (treaty interpretation) and policy (recommendation as to the next step) Dissemination and follow-up Indicators and benchmarks Progressive realization? Comparison?

Towards the use of indicators Indicator: a step between raw data and a legal interpretation; at best provides a presumption of compatibility Structure/process/outcome indicators State obligations to respect/protect/fulfil Pilot project under the two Covenants Will affect the reporting guidelines and the approach of the treaty bodies But not dramatically

Problems in the UN human rights treaty system Formal non-acceptance of obligations Non-ratification Non-acceptance of the right of complaint Reservations (the actual facts are counter-intuitive) Non-reporting (perhaps the biggest problem) Backlogs of reports and communications Non-compliance Concluding observations Final views Requests for interim measures Non-enforcement by the UN as a whole

… more problems Underresourcing Proliferation of mechanisms An increasingly serious problem Proliferation of mechanisms Newest treaties: Migrant Worker Convention; Convention on the rights of persons with disabilities and Convention against disappearances Mushrooming of non-treaty-based mechanisms under the Human Rights Council Duplication, lack of coordination

Plans for treaty body reform Modest version: better cooperation between TBs, including common reporting guidelines; possible consolidation of reports or more focused reports under each treaty Ambitious version (Louise Arbour): single unified treaty body; consolidated reports; full-time membership (25 members?) Middle course: either a merger of the two Covenant bodies with overlapping members- hip with the others, or a complaints body Vision: World Court of Human Rights

Louise Arbour’s ambitious treaty body reform plan UN document HRI/MC/2006/2 Single full-time treaty body with 25 members Options within the model No chambers Parallel chambers Chambers along functional lines (reports/complaints) Treaty-based chambers Chambers along thematic lines (clusters) Chambers along regional lines Legal issues: model of provisional application Did not receive support (“Stone Age” metaphor)

Middle course model International Court of Justice as ‘appeal instance’ above UN human rights treaty bodies (through advisory opinions requested by the General Assembly) Merger of the two Covenant committees into a new Human Rights Committee, to secure interdependence and indivisibility of all human rights; renewed membership Overlapping membership with the other specialized committees which to become de facto satellite/subsidiary bodies of the new Human Rights Committee Human Rights Council to oversee under UPR the effective implementation of decisions and findings by treaty bodies No treaty amendments or new treaty needed!

Middle Course Model ICJ States HR Council General Assembly New HRCttee (ICCPR+ICESCR) CAT and SPT CERD CEDAW MWC CRC CED CRPD ICJ HR Council General Assembly States

Comments on the current “strenghtening process” The proliferation of treaties and treaty bodies had already gone too far Various vested interests: Specialized committees: special focus Treaty body members: their own position States: ineffectiveness serves a purpose OHCHR: weak bodies are easier to “manage” Result: the “reform” proposals are conservative, incremental, conflicting; and the “process” becomes an end in itself

World Court of Human Rights Another ambitious reform model