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

2. 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

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

4. 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

5. 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

6. 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

7. 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)

8. 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

9. 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

10. 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.

11. 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

12. 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

13. 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

14. 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?

15. 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

16. 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

17. … 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

18. 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

19. 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)

20. 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!

21. 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

22. 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

23. World Court of Human Rights
Another ambitious reform model