UN human rights treaty monitoring reform update: promising OHCHR proposals now to be acted upon by the General Assembly (and the EU)

UN human rights treaty monitoring reform update: promising OHCHR proposals now to be acted upon by the General Assembly (and the EU)

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 are strictly those of the author only, and do not in any way reflect the position of the Dutch government.

A while back I reported on discussions that were (re)started in 2009 about how to revamp the way in which UN human rights treaty monitoring functions. About three years into this debate the UN High Commissioner for Human Rights has now published her own long-awaited report. It contains a number of very valuable proposals that, if implemented as a package, would constitute a great leap forward. The report is an admirable piece of work by the High Commissioner and her Office. Yet it also still leaves one or two things to be ironed out and explicated in the process leading up to the likely adoption of a General Assembly resolution. It is therefore important to keep up the pressure. It is also crucial to alert the European Union, which only very recently proudly adopted its Strategic Framework and Action Plan on Human Rights and Democracy, that it is now time to practice what is has been preaching for decades and put its money where the mouth is. In particular, footing part of the reasonable bill that will come with strengthening the existing UN human rights monitoring system in line with the High Commissioner’s proposals would seem a natural and desirable move for the EU, simply because it would be fully in line with many of its internal and external policy objectives (and therefore a rather economical way to pursue its enlightened self-interest).

Having learnt from earlier mistakes made by her Office – previous multi-faceted proposals to reform the way in which treaty monitoring functions got to be reduced and identified only with a (perfectly reasonable yet rather far-reaching, and therefore easily criticised) idea to merge the various treaty bodies – the High Commissioner this time took a smart approach. She explicitly presented the report as a ‘compilation’ of ideas tabled by others ‘to identify synergies, linkages and mutual reinforcements’. The selection criteria she used were that, apart from actually strengthening the treaty bodies’ mission to enhance promotion and protection of human rights, the proposals should a) respect the treaties and do not require amendments, b) have been proposed by more than one contributor to the debate and be likely to generate agreement, and c) be compatible with and make for a coherent package with other proposals. This approach has the admirable effect of front-loading and side-lining expected criticism in one move, leaving space for a strategic pick-and-choose among the very numerous proposals tabled.

The key proposals include:

– establishing a comprehensive reporting calendar ensuring strict compliance with human rights treaties and equal treatment of all States parties; this is fleshed out by a proposal to introduce a synchronised 5-year schedule, in which the ten human rights treaties would be paired two-by-two, and according to which States Parties would have to report to a maximum of two treaty bodies a year.

– enhancing independence and impartiality of members, and strengthening the election process

– establishing a structured and sustained approach to capacity building for States parties for their reporting duties

– ensuring continued consistency of treaty body jurisprudence in individual communications

– increasing coordination among the treaty bodies on their work on individual communications and their adoption of common guidelines on procedural questions

– increasing accessibility and visibility of the treaty body system, through webcasting of public meeting and use of other technologies

– a simplified focused reporting procedure to assist States parties to meet their reporting obligations with cost savings for them and the UN while maintaining the quality of the process

– alignment of other working methods to the maximum extent without contradicting the normative specificities of the treaties

– limitation of the length of documentation

This list of proposals makes for a solid and balanced package that should be taken up fully by the UN Member States in their consideration of this matter in the context of the General Assembly. Without taking away from this considerable achievement, I want here to draw attention to a number of interesting aspects to the approach chosen by the High Commissioner, and identify matters that may be worth expanding further in preparing the General Assembly’s resolution:

First, it is surprising that such prominence is given to the importance of independence of treaty body experts. This is a crucial aspect indeed, but evidently politically sensitive as well. Placing so much emphasis on this is to be applauded. Although the different proposals are closely related, this should be considered absolutely foundational.

Second, it has to be said that the High Commissioner’s message and package of proposals contain an interesting tension with regard to the position of treaty bodies. On the one hand she stresses the need to respect the powers of the treaty bodies to decide on their own working methods and rules of procedure. On the other, 5 out of 9 of her proposals effectively (and desirably) prescribe how these working methods should be tailored to strengthen the current function of the system. Why not simply state that treaty bodies are just a means to the overarching end of increasing domestic implementation, and that as such they need to act in a unified way as part of a coherent system tailored to reaching the same goal?

Third, one way in which the position of treaty bodies is definitely maintained in the High Commissioner’s proposals is that it is taken for granted that they will all keep their independent existence. She calculates that to execute her plans the total combined annual meeting time of committees should be increased from the current 73 weeks to 124 weeks. What remains unclear, however, is why this would require 172 different volunteering experts consuming $12.1 million in travel budget alone (almost 25% of the current annual budget for human rights treaty monitoring). Surely it would be more cost-efficient to appoint a number of experts to a standing unified human rights treaty body who could be in Geneva on a full-time basis, perhaps aided by a somewhat expanded staff? It would be advisable for States to ask the High Commissioner’s Office at least to calculate the costs of this option as well. If harmonising the varying periodicities mandated by the different treaties into a unified reporting cycle is found by the High Commissioner to be legally possible, it is hard to see why the same would not apply to merging the treaty bodies whose existence is mandated by the treaties. The current attention paid to this issue by the General Assembly is too good an opportunity to leave this issue completely undiscussed and unexplored.

The tragedy of good ideas is usually that they cost money to implement. The High Commissioner’s ideas are no exception. She estimates the additional annual costs at around $ 50 million/year (at $ 108 million/year, up from the current $ 56 million/year). Who will step up to the plate in the General Assembly and foot the bill?

Just two weeks ago the EU, in its aforementioned new Strategy, solemnly reaffirmed its dedication to the UN human rights system generally, including the human rights treaty monitoring system (see in particular at pp. 4-5: “the EU will continue to speak out in the UN General Assembly against human rights violations”; “the independence and effectiveness of the treaty monitoring bodies is essential”; “The EU and its Member States are committed to raising recommendations of treaty monitoring bodies in bilateral relations with all third countries”; “the EU Member States are equally determined to ensure implementation of such recommendations within their own frontiers”). Clearly, good quality and independently generated UN human rights treaty monitoring output would be beneficial to almost all the EU foreign policy aims set out in the Strategy (cf. pp. 5-24). Crucially, the same goes for its internal policies. Its EU Fundamental Rights Charter explicitly states that it draws on its Member States international obligations (see preamble) and that its own protection level cannot fall below it (see article 53 of the EU Charter). What better way to bolster – on a shoestring – that universal legal minimum than to invest in a UN human rights treaty monitoring system that has, according to the EU’s own recent statements, proven its worth?  It is hoped, therefore, that some space can be found in the EU’s € 1.1 billion 2007-2013 budget for promoting human rights and democracy outside the EU, or else its budget to promote human rights protection within the EU itself.