New Discussions on UN Human Rights Treaty Monitoring Reform: Using the Momentum while Acknowledging Financial and Political Realities

New Discussions on UN Human Rights Treaty Monitoring Reform: Using the Momentum while Acknowledging Financial and Political Realities

John Morijn, PhD (EUI (Law)) is senior human rights adviser, Dutch Ministry of the Interior and Kingdom Relations and assistant professor of human rights law, University of Groningen, The Netherlands. Views expressed in this post, based on ‘Reforming United Nations Human Rights Treaty Monitoring Reform, Netherlands International Law Review, LVIII: 295-333, 2011 and further inspired by discussions during the Maastricht University seminar about UN treaty body reform in November 2011, are strictly those of the author only, and do not in any way reflect the position of the Dutch government. E-mail: j.morijn {at} rug(.)nl

Initiatives to rationalise UN human rights treaty monitoring, although simmering already for decades, have witnessed a new dynamism over the last five years. In 2006, the UN Office of the High Commissioner for Human Rights (OHCHR) published a policy paper about this issue. It came to be identified with (and subsequently reduced to) its proposal to streamline human rights treaty monitoring by merging all existing treaty bodies and creating a permanent unified standing expert body. This idea was widely rejected as too radical by members of existing treaty bodies and most other observers.  In 2009 the OHCHR re-launched the debate, slightly rewording the exercise (and therefore, implicitly, perhaps also its rationale) from ‘treaty body reform’ to ‘treaty body strengthening process.’ On this basis consultations have now taken place amongst academics, treaty body members, NGOs and National Human Rights Institutions, and various sets of recommendations and proposals for reform have been published. After two more early 2012 consultation sessions with States, which have so far been rather silent (seemingly focusing their energies on the less binding Universal Periodic Review-mechanism, recently green-lighting its second cycle as of 2012), the OHCHR is expected to propose, by the end of 2012, a new set of measures to alter the modus operandi of UN human rights treaty monitoring.

Notwithstanding the fact that a great many institutions and NGOs have offered input and made proposals in these consultations, there is an uncomfortable sense that the OHCHR will have little to work with if its aim is the drafting a set of realistic proposals that will actually help this human rights protection method move forward in a sustainable way. Most proposals tabled (for a useful summary see this OHCHR overview) boil down to measures and activities that treaty bodies or the OHCHR Secretariat should take up in addition to their current (overburdened) workload. This is accompanied, moreover, by a noted lack of corresponding proposals regarding what activities now carried out in the context of treaty monitoring should be re-organised, re-considered or simply discontinued.

This is striking even for a well-willing and ‘human rights friendly’ observer. Firstly, because 10 treaty bodies running 10 periodic reporting cycles in parallel, whatever the origin of this state of affairs, seems to be rather a parody of a transparent and efficient process. Secondly, and quite apart from the question of whether keeping intact the system as it currently stands is actually such a good idea (see below), it is more immediately hard to gauge how this status quo-leaning approach to ‘strengthening’ can be squared with the realities that the budget for treaty monitoring (which is already completely insufficient for the way the system is currently run) will very likely not be increased by States in the current economic and political climate. Therefore, if we want to avoid losing the momentum for revamping human rights treaty monitoring yet again, creative ideas that keep costs essentially stable but harness its added value and increase its impact are urgently needed. In this post the functioning of human rights treaty monitoring, and implemented and proposed measures to strengthen it, will first be briefly outlined, in particular highlighting apparent institutional and international level biases. Second, some reform proposals will be tabled that would fall within the parameters of current realities.  Given the importance of human rights treaty monitoring it is hoped that this post will generate some reactions and provide the OHCHR with much-needed additional input in drafting its proposals by the end of this year.

The functioning of human rights treaty monitoring, strengthening measures and reform discussions

This is not the place to provide a comprehensive description of the various challenges facing human rights treaty monitoring, and various proposals to deal with these issues (see my recent article for an attempt at a summary and analytical break-down). Suffice it to give a brief characterisation of the current modus operandi, and to identify two unfortunate characteristics that are prevalent in many proposals for its alteration.

Treaty bodies’ monitoring of State compliance with UN human rights treaty obligations by way of assessing periodically submitted State reports is meant to be – in UN-speak – a “constructive dialogue” (the focus here will be on periodic reporting, not on the individual complaints procedures under various treaties; that possibility should of course be safeguarded). Yet, this has been more theory than practice from the beginning. In reality, the “constructivism” has faced problems in both directions.

On the one hand, States have not delivered on their commitments by often being massively late with their reports, or not submitting them at all. Moreover, many State reports are very short on useful information and more generally paint a very rosy picture of the state of domestic implementation of the international commitments. Also, even as they have continued to create ever more treaty bodies (currently 10 – with 172 members) to monitor ever new human rights treaties, and even as their ratification of human rights treaties has significantly increased, States have also consistently under-funded the treaty body system. As a result, even with the limited input by States, treaty bodies run a significant delay in processing their reports because they have limited meeting time available. It has been frequently observed that the system is not completely collapsing precisely due to this ‘delinquency’ of many States that see ratification as an end in itself. Finally, States have also sometimes appointed independent experts to treaty bodies who are not independent, not experts, or are neither. As regards to the latter issue, it is useful that treaty bodies are currently discussing whether guidelines can be drawn up to ensure a consistent level of expertise.

On the other hand, and this is a story less frequently told (and requiring a greater measure of introspection on the part of those involved in human rights treaty monitoring), constructivism has also suffered from the way treaty bodies have themselves performed. Put bluntly, well-meaning States and other stakeholders cannot always have felt that they are receiving useful advice or truly authoritative guidance from treaty bodies. Many States find the working methods of human rights treaty bodies unnecessarily burdensome. Often recommendations are very vague or abstract (“topic X should be “mainstreamed” into national policies”, etc. – but what aspect of topic X in particular, and in what way?). Questions asked sometimes seem ill-informed, rather beside the point or not quite hitting the ‘human rights importance’-rate one would expect to be the focus of treaty bodies (one of the oral questions recently asked to the Dutch delegation by CEDAW, the treaty body monitoring the women’s rights convention, was about the access to internet by women outside city-areas – the Netherlands, practically one big city, ranks 7^th in the world when it comes to the internet penetration rate).

Given that there is obvious overlap between standards in different treaties, treaty monitoring ‘customers’ find it cumbersome to tell the same story multiple times to different treaty bodies, often in close proximity. This leads to increasing ‘reporting fatigue’ (in national administrations it is usually largely the same people doing the reporting to different treaty bodies). Treaty bodies have sometimes reacted well to these challenges. Recent initiatives to study whether a List of Prior Issues (a document sent to the State ahead of reporting, indicating which issues will be focused on) and follow-up can be strengthened are cases in point (see more here and here). This will make the reporting more predictable for States and other stakeholders and could likely ensure that States are forced to react in more detail to recommendations made previously by treaty bodies.

On other occasions, however, treaty bodies have not helped ‘constructivism’ at all. One example is their complete failure, even after a lot of effort, to harmonise requirements for the pre-reporting, reporting, and post-reporting stages across treaty bodies (the current ‘compilations’ regarding rules of procedure and guidelines on the form and content of state report are effectively a compilation of all the various different sets of reporting guidelines, totalling more than 350 pages (see here on the right-hand side of the page). The only apparent rationalisation is that they are now contained in one document. This is something that treaty bodies could easily solve on their own within their current competencies, although they would have to work together more effectively and view themselves less as islands and more like a system.

This links to a first issue that may be hampering strengthening proposals. There seems to be a strong institutional bias in the whole reform/strengthening process and discussions (note that the terms treaty body reform and treaty body strengthening process both have a primarily institutional connotation). On brief reflection, this should be odd for human rights defenders. The institutional set-up is but a means to an end, not an end in itself. What is to be protected, and therefore strengthened, is the process envisioned by periodic reporting – which is the main strength of this human rights protection technique. It is to create a dynamic between the national and the international levels. At the national level the periodicity ensures that awareness is given to the commitments undertaken internationally. At the international level guidance is given to a specific State, but with a view to pushing the envelope of international human rights protection more broadly.

The institutional self-reference/self-preservation stance that seems to be so strong in the context of human rights treaty monitoring practice also takes more subtle forms. Treaty bodies have often justified the need for their own independence from other treaty bodies by arguing that only a free-standing interpreter of a specific treaty can give specific, genuine and detailed meaning to that human rights treaty. No one denies that there is virtue in having specialised treaties on specific (sorts of) human rights (problems) or focused on specific groups of right holders. This does not, however, imply that this necessitates keeping in place ever more independent interpreters. By analogy to the national level, that would be tantamount to arguing that each new issue/problem requires a new ministry. Every practitioner knows that this also creates institutional competition and a lot of energy sapping away from achieving the actual policy goals.  There is no reason why a more concerted effort of treaty bodies, or even – let’s just get it out – a single monitoring body, would be less effective in safeguarding specific issues or the interests of specific groups. Frankly, a unified interpreter might even give more authority to a stance taken on a particular issue, because it is more likely to have been taken against the background of a more general context (and understanding).

A second problematic point in the way that strengthening proposals are usually framed and phrased is that they focus overwhelming only at the international level of the reporting dynamic, at reshuffling tasks and procedures at that plane. The way in which national implementation is actually to be nurtured ‘on the ground’, the way that the national dialogue about what treaty bodies have recommended can be sustainably improved and made to be felt useful and relevant politically and policy-wise, often disappears from sight. This has resulted in some lopsided measures that are presented as strengthening the possibility for national engagement, but are in fact little more than an administrative burden that may even hamper a substantive national dialogue about the content and meaning of the international commitment. One good example is the insistence by treaty bodies for States to submit so-called common core documents (containing all basic information about the governmental and constitutional structure, etc.). Since it has not yet been very widely adopted by States, this idea has also been tabled as a strengthening option by various stakeholders– see OHCHR summary list of proposals, p. 3. Now in fact, drafting a common core document may lead to more work at the national level (because it is likely to require continuous updating), without being of much added value at the international level. It is hard to see how this strengthens the possibility of achieving the ultimate aims of human rights treaty monitoring – domestic implementation.

Proposals to strengthen human rights treaty monitoring

It is important to use the current momentum to strengthen human rights treaty monitoring. In order to move more decidedly in that direction than what may be gleaned from current proposals on the table, it should be considered whether treaty bodies’ current modus operandi could be modified along the following lines: (I) full synchronisation of reporting cycles under different human rights treaties and with the UPR-mechanism, and (II) fully coordinated and focused/targeted (rather than comprehensive) monitoring and follow-up by treaty bodies including by clustering reporting under different treaties and re-discussing the possibility of merging different treaty bodies. Some examples of proposals that would take account of current realities in the functioning of treaty monitoring, keeping in mind the likely limited financial and political leeway to invest extra resources, that would likely not require treaty changes (although some aspects would probably need a General Assembly resolution) include:

– Planning

(a) Announcing a master-calendar of reporting under all treaties long in advance; (b) clustering and synchronising both the reporting and monitoring of human rights treaties; i.e. substantively related treaties could be reported about at the same time by States which have ratified treaties within that cluster (four different clusters are identified in the paper); this would save time and facilitate the continued coherence of output with regard to the interpretation of closely related human rights norms; (c) synchronise the complete human rights treaty monitoring cycle with the UPR-cycle (as of 2012 being 4.5 years) in order to maximise the relevance of treaty monitoring to other international level human rights protection.

– Procedure

(a) Most importantly of all, limiting the number of issues addressed by treaty bodies per session  to three or four, rather than comprehensively considering all human rights in the treaty under consideration (with regard to such pre-selecting or short-listing a limited number of topics or rights for review, it is important to realise that this has been a standing practice in the context of a number of Council of Europe treaty monitoring bodies, like the European Committee on Social Rights and GRECO (which monitors an anti-corruption treaty); (b) announcing in advance the issues to be covered by way of Prior Lists of Issues to be sent to the States; (c) maximising the number of recommendations to a State, and formulating them more sharply (SMART), (d) automatic following up on recommendations given, either in the next cycle or in a dedicated reporting cycle to be included in the master calendar; (e) considering the situation in States even in the absence of a report on the basis of information delivered by States to other fora, such as the UPR; (f) all of this could be laid down in a comprehensive common set of reporting guidelines applicable to reporting under all human rights treaties.

– Institutional set-up

In order to further facilitate the added value of clustering and synchronisation in actual practice it would be useful to (a) re-explore the possibility of merging all existing treaty bodies into one. Again, treaty bodies are means to an end, not ends in themselves. The reduction of travel cost alone ($10m/year – 30% of the complete treaty monitoring budget) would free up considerable resources; (b) alternatively, the possibility could be explored of nominating experts sitting simultaneously in the 4 clusters of substantively related treaty bodies (this would de facto reduce the number of experts by 75%, but keep the treaty bodies themselves all in existence formally).

– Activities to be discontinued/proposals not to be adopted without harming the essence of treaty monitoring

(a) Requiring a common core document from States; (b) insisting on the delivery of State reports that are very far back in time (currently 623 State reports are overdue; some States are behind several cycles; the introduction of a new system could lead to announcing that reports over these periods no longer need to be delivered); (c) drafting General Comments alone or together with different treaties bodies (a good database, or a good academic article would come a long way in clarifying the position of treaty bodies); (d) adopting common statements on current events (both these two latter activities are better covered by other aspects of the UN human rights protection mechanism, such as UPR and special procedures); (e) performing in situ monitoring by treaty bodies whose treaties do not allow for that and/or regional monitoring sessions (very costly, and there are better ways to increase visibility, such as webcasting all sessions of treaty bodies and the focused approach to reporting itself).