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Would the creation of a single body to monitor compliance with all of the major international (UN) human rights treaties be a step in the right direction?

In the Secretariats Concept Paper, the proposal for a unified standing body was made with the intention of improving visibility, authority and access to the treaty body system.1 The need for it to be a standing body is related to the triad of aforementioned themes, but the concept of unity is central to the purpose of a single body (to monitor compliance with all of the major UN human rights treaties), in that its advantages seemingly depend on the homogenisation of procedures and use of resources, both financial and temporal. Nonetheless, the matter of each committees authority, provided for within the mandates of their respective treaties, remains a problematic issue. Without the ratification of multiple amendments or an overarching protocol to bestow legal authority to a single body, the creation of a single body lacks the emphasis required to encourage state parties towards compliance. There are, however, other benefits, as I shall examine.

Essentially, the objective of the human rights treaty body system is to ensure human rights protection at the national level through the implementation of human rights obligations contained in the treaties.2 Therefore, it is crucial that any benefits derived from the creation of a single body be considered in relation to their overall contribution to the domestic dissemination of treaty law. Their legal enforcement is based upon the respective articles regarding reporting obligations of each treaty. Unfortunately, the imprecise nature of their language, especially regarding reporting guidelines, limits the treaty bodies in their duties. The diction of ICERD, CEDAW and ICMW stipulate a report on the legislative, judicial,

HRI, Concept Paper on the High Commissioners Proposal for a Unified Standing Treaty Body (June 2006) UN Doc HRI/MC/2006/2 11 2 HRI (n 1) 4

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administrative or other measures adopted to give effect to the provisions of the relevant convention.3 In the case of ICCPR, ICESCR and CRC, reports are directed to indicate the factors and difficulties affecting the implementation of the present Covenant (ICCPR) or the degree of fulfilment of obligations (ICESCR and CRC).4 Both protocols to CRC state that the report must provide comprehensive information on the measures it has taken to implement the provisions of the Protocol, although OPAC specifies the need for measures taken to implement the provisions on participation and recruitment to be included.5 The CAT, ICED and CRPD display similar wordings to the same effect.6 With the exception of OPAC, reporting criteria are vague.

One of the intended benefits of a single body is the harmonisation of reporting guidelines, allowing for greater predictability so state parties can properly prepare and engage with the dialogue process. Yet, it is debatable as to what could motivate a state to conform to these new guidelines, barring their ratification to a relevant amendment, when the treaties lack the specificity requiring them to do so. Certainly, universally adopted guidelines, such as the proposals for Common Core Documents and treaty-specific Simplified Reporting Procedure (also known as List of Issues Prior to Reporting), could relieve some of the burdens of

International Convention on the Elimination of All Forms of Racial Discrimination (adopted 7 March 1966, entered into force 4 January 1969) 660 UNTS 195 (ICERD); Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3 (ICMW) 4 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR);International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR); Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990)1577 UNTS 3 (CRC) 5 Optional Protocol on the Involvement of Children in Armed Conflict (adopted 25 May 2000, entered into force 12 February 2002) 2173 UNTS 222 (OPAC); Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (adopted 25 May 2000, entered into force 18 January 2002) 2171 UNTS 227 (OPSC) 6 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT); Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3 (CRPD); International Convention for the Protection of All Persons from Enforced Disappearance (adopted 20 December 2006, entered into force 23 December 2010) C.N.737.2008.TREATIES-12 (ICED)

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reporting by simplifying the preparation and presentation of national reports; the reasoning being that better state participation can be encouraged if the process is made coherent, and thus easier.7 However, if we compare the fairly recent CCDs of Germany (consisting of 66 pages) and Russia (composed of 11), which were assessed at the 46th Session of CESCR, it becomes apparent that one state is more actively participating in the reporting reform than the other. This is not an unfamiliar problem: Spains tenth, eleventh, and twelfth reports for 1988, 1990 and 1992 to CERD were consolidated into a single document three pages long.8 Alternatively, some state parties have failed to submit even their initial reports. For the CAT alone, the committee has been reduced to sending reminders to 29 state parties whose initial reports have been three or more years overdue.9 As Bowman asserts, while treaties undeniably generate binding legal effects, and are to be interpreted and applied in good faith, no state can ultimately be compelled to participate in any such arrangement against its will.10 The rebuking rod of the committees is palpably absent, punctuated, for example, by the acknowledgement that the country situations of Congo and Equatorial Guinea were considered in the absence of a state report at the 49th session of CESCR.

Also, the delinquency of reporting results in complying states being examined more thoroughly and an unintended atmosphere of deferential treatment. The OHCHRs proposal for a Comprehensive Reporting Calendar seeks to level this atmosphere, grouping all treaty reporting obligations into a single five-year cycle. Constructing a schedule of deadlines, in conjunction with standardised reporting guidelines, may significantly improve general adherence to reporting deadlines. Presently, treaty bodies have varying deadlines: ICERD
7 8

UNGA, United Nations Reform: Measures and Proposals (26 June 2012) UN Doc A/66/860 52 Anne Bayefsky, Making the Human Rights Treaties Work in Louis Henkin and John L Hargrove (eds) Human Rights: An Agenda for the Next Century (ASIL 1994) 240 9 UN Committee Against Torture, Submission of Reports by State Parties Under Article 19 of the Convention (1 September 2010) UN Doc A/65/44 para 41 10 Michael Bowman, Toward a Unified Treaty Body System for Monitoring Compliance with UN Human Rights Conventions? Legal Mechanisms for Reform (2007) 7(1) HRLR 225

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requires its periodic report every 2 years, while the majority specify 4 or 5.11 A calendar would eliminate the possibility of situations where workloads are exacerbated by accumulated obligations. Furthermore, practices of considering [the submission of] a single report as satisfying the production of all overdue reports, would no longer be need.12 Legal enforcement is still a concern as this is merely a schedule without punitive measures, but only state parties who persistently ignore reminders for initial reports would fail to be affected. Adversely, implementation of the calendar would clearly result in greater financial support, which is unlikely to be approved given current budgetary limitations. Also, the inherent strengths of the calendar would be undone by the smallest of deviations in adherence to the schedule.

Where legal enforcement flounders, political pressure stemming from the international examination of a state in default may motivate the government into action. Contrary to the adversities faced by their sister committees, the CRC and CEDAW, perhaps the most widely ratified treaties, have succeeded in receiving almost all their initial reports, suggesting that the potency of political pressure is strengthened by the number of states rallied behind it. 13 Generally, the correlation between the number of ratifications per treaty and their percentage of overdue initial reports seems to support this.14 Thus, the single bodys aim of increasing its visibility and accessibility (to both state parties and their citizens), through improving the coherence of the treaty body infrastructure and clarification of the modalities involved with the interpretation of treaty law, would influence states to participate in pressurising noncompliant state parties.

11 12

UNGA (n 7) 21 Bayefsky (n 9) 235 13 UNGA (n 7) 22 14 UNGA (n 7) 23

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The existence of multiple treaty bodies fractures public perception of what should be seen as an integrated entity. Additionally, the current system is relatively unknown outside academic circles, Government departments and officials directly interacting with the system, and specialized lawyers and NGOs.15 Hence, a single body substitute could provide a more visible entity, raising domestic interest so as to kindle pressure using a bottom-up approach. According to the Secretary-Generals 2011 report, webcasting of all treaty body sessions has increasingly being proposed, by different stakeholders during the consultations of Navi Pillays process of reflecting on strengthening the treaty body system.16 Making their meetings transparent de-mystifies the systems intricacies, encouraging greater NGO participation and individual interest. Then again, countries that would require this method of stimulating political pressure often suffer from economic inequality. It is uncertain how likely a hypothetical victim of human rights abuse or an aspiring human rights advocate would be able to see the webcasts.

One must note, however, that political pressure rarely results in substantial change. Bayefsky posits that it is appearance, rather than compliance, that has become important.17 This problem persists: ultimately the cause for the loss of confidence in the Commission on Human Rights, it is also the reason for the contrast found between the number of overdue periodic reports and initial reports.18 Political pressure encourages change only on the surface level. Moreover, it has less effect on state parties who are either authoritarian in nature or embroiled in internal conflicts. Among the countries who have persistently ignored reminders, Gabon has had just two presidents (a father and son pair) from 1967-2013, Cote

15 16

HRI (n 1) 9 UNGA Report of the Secretary-General 66/364 (2011) UN Doc 66/364 15 17 Bayefsky (n 9) 234 18 UNGA (n 7) 23

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dIvoire are still reeling from civil war, while Somalias infrastructure is plagued terrorism. 19 For these states, the protection of human rights is intentionally disregarded or unrealistic due to current affairs; better to avoiding reporting, rather than face scrutiny in areas that will doubtless produce criticism.

Conversely, a state party may feasibly reject a committees interpretation of their respective instrument. In response to the Human Rights Committees consideration of the United States combined second and third periodic reports, the US Government rejected the HRC's views on the extra-territorial reach of the ICCPR. It pointed out that in general only the parties to a treaty are empowered to give a binding interpretation of its provisions unless the treaty provided otherwise.20 Despite the HRCs 2013 General Comment concerning the liberty and security of person, the US would surely reiterate their aforementioned belief were they to be questioned about, for instance, the continued detainment of foreign nationals at Guantanamo Bay.21

On the other hand, it is a fact that the treaty body system is hugely underfinanced. Theoretically, 320 reports should be reviewed annually, but only 120 reports are in practice; 160 weeks of meeting time are also required to make the current system functional but only 68 weeks is presently approved.22 The creation of a single body would consequently improve communication between treaty bodies, thereby allowing for the compression of reports and meeting times for consideration. As the treaty body system developed ad hoc to deal with surfacing issues, their approaches also developed independently of one another. Only recently have human rights become perceived as interrelated, interdependent, and indivisible.
19 20

See n 10. Ed Bates, Avoiding legal obligations created by human rights treaties (2008) 57(4) ICLQ 1 21 UN Human Rights Committee, Draft General Comment No. 35 (28 Jan 2013) Un Doc CCPR/C/107/R.3 22 OHCHR, A Comprehensive Reporting Calendar (Consultation for States, April 2012) 4

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Combining the meeting times of all treaty bodies (per state party) to one would allow for more targeted discussion. While certain treaties possess more state parties than others, the allocation of time is seemingly disproportionate. The CRC is allowed 12 weeks per year to examine the reports of 193 state parties.23 Despite also having to consider reports from OPAC and OPSC, which combine to 88 reports, the committee is not permitted additional meeting time. In comparison, CEDAW has 13 weeks to examine the reports of 187 state parties and 10 communications from its Optional Protocol.24 The savings accordingly accrued could be utilised to further other measures to improve the visibility, authority, and access of the treaty body system, for example, the establishment of a treaty body jurisprudence database.

Yet, if these meetings were to be more direct, what effect would they have? As Louis Henkin states, in the case of the HRC, it is hedged by limitations. It [is] not a court, only a committee; it [does] not enter judgement, but express[es] views.25 The HRC is entitled to convey general comments to a state party, but they have no legally binding effect: Donnelly bemoans that such normative strength and procedural weakness is not accidental but is the result of conscious political decisions. 26 States are unwilling to authorise an external institution with the power to jeopardise their sovereignty. Following such a mentality, how can committees expect state parties to sincerely engage in the dialogue with the purpose of safeguarding the protection of human rights in their infrastructures?

In conclusion, fault can only be assigned to the treaty bodies to a certain extent. The relative impotence of treaty body instruments reflects a prevalent desire by states to conserve state

23 24

OHCHR (n 22) 5 OHCHR (n 22) 5 25 Bates (n 18) 26 ICCPR, (n 4) Article 40 nd Jack Donnelly, Universal Human Rights in Theory and Practice (2 edn, Cornell University Press 2003) pt 3, ch 3, para 1

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sovereignty. A single body substitute does not, however, directly address the growing backlog of reports that continue to amass. By the end of 1992 there were 596 reports overdue for a mere five treaties.27 With the addition of four new human rights treaties, two optional protocols and the Universal Periodic Review has stimulated increased ratification.28 By 2012, 626 reports were overdue.29 The potential savings derived from single body reforms scarcely hide the glaring need for further financial support. As such, it is apparent that the legal construction of a single body equates to a tentative step in the right direction, and is necessary in order to develop their own authority with regards to monitoring, encouraging and enforcing compliance with the main UN human rights treaties. Informal measures fall short in this regard.

27 28

Bayefsky (n 9) 286 UNGA (n 7) 18 29 UNGA (n 7) 22

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Table of Authorities

International Treaties International Convention on the Elimination of All Forms of Racial Discrimination Convention on the Elimination of All Forms of Discrimination against Women International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Convention on the Rights of the Child Optional Protocol on the Involvement of Children in Armed Conflict Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Convention on the Rights of Persons with Disabilities International Convention for the Protection of All Persons from Enforced Disappearance

Bibliography

Official Publications (for example, White Papers)

Books Donnelly J, Universal Human Rights in Theory and Practice (2nd edn, Cornell University Press 2003)
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Chapters in books Bayefsky A, Making the Human Rights Treaties Work in Hargrove J L and Henkin L, Human Rights: An Agenda for the Next Century (ASIL 1994)

Journal articles Bates E, Avoiding legal obligations created by human rights treaties (2008) 57(4) ICLQ 1 Bowman M, Toward a Unified Treaty Body System for Monitoring Compliance with UN Human Rights Conventions? Legal Mechanisms for Reform (2007) 7(1) HRLR 225 Egan S, Strengthening the United Nations Human Rights Treaty Body System (2013) 13(2) 209 Johnstone L, Cynical Savings or Reasonable Reform? Reflections on a Single Unified UN Human Rights Treaty Body (2007) 7(1) 173

Web-based material 44th Session of the Committee against Torture, Reminders for Overdue Initial Reports 2010, September 2010 <http://www.bayefsky.com/html/equatorialguinea_cat_spec_dec.php> Accessed 3 November 2013 66th Session of the United Nations General Assembly, United Nations Reform: Measures and Proposals 2012, June 2012 <http://www2.ohchr.org/english/bodies/HRTD/docs/HCReportTBStrengthening_en.d oc> accessed 6 November 2013
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66th Session of the United Nations General Assembly, Measures to Improve Further the Effectiveness, Harmonization and Reform of the Treaty Body System 2011, September 2011 < http://daccess-ddsny.un.org/doc/UNDOC/GEN/N11/488/85/PDF/N1148885.pdf?OpenElement> accessed 6 November 2013

107th Session of the Human Rights Committee, Draft General Comment No. 35 2013, January 2013 <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=C CPR%2fC%2f107%2fR.3&Lang=en>

Fifth Inter-Committee Meeting of the Human Rights Bodies, Concept Paper on the High Commissioners Proposal for a Unified Standing Treaty Body 2006, June 2006 <http://www.bayefsky.com/reform/reports_hri_mc_2006_2.pdf> accessed 5 November 2013

Secretariat of the Office of the High Commissioner for Human Rights, A Comprehensive Reporting Calendar: Consultation for States on Treaty Body Strengthening, April 2012 <http://www.ohchr.org/Documents/HRBodies/TB/HRTD/NY/ComprehensiveReporti ngCalendar.pptx> Accessed 9 November 2013

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