9th April 2014, New York
The United Nations General Assembly today (9th April) completed a two-year review of a key part of the UN’s human rights architecture: the human rights treaty bodies. The review occurred in the context of and built on ideas generated from a broader effort by the UN High Commissioner for Human Rights to ‘strengthen’ the treaty bodies. The outcome of the state-led review is significant, though in the end it only addresses a portion of the challenges facing the treaty body system, deferring more fundamental questions to a later date. Like other UN reform exercises, such as the 2006 review of the Human Rights Council’s Special Procedures, the treaty body reform negotiations served to highlight different state perspectives on key issues such as independence, working methods and financing.
There are 10 core human rights treaties that set out the fundamental rights to which all people are entitled. Each of these creates a ‘treaty body’ of between 10 and 25 unpaid, independent experts, nominated and elected by states but serving in their personal capacity, that convene for several weeks a year, generally in Geneva, to monitor states parties’ implementation of their treaty obligations. Each of the first six treaties that created a treaty body has now been ratified by at least 80 per cent of UN member states.
As the treaty bodies have evolved and multiplied over the years, so they have faced a number of increasingly acute challenges to their effectiveness and efficiency. In particular, the treaty bodies have struggled with low rates of procedural compliance: many states fail to submit regular reports on their efforts to implement their human rights obligations, leading the treaty bodies to review some states’ performance only occasionally, if at all. Even those states that do come under scrutiny do not consistently implement the treaty bodies’ recommendations. The treaty bodies have developed procedures intended to spur greater implementation, though these have provoked opposition from some states. At the same time, the treaty bodies have strengthened their engagement with NGOs and overall levels of transparency. This has raised public awareness of the treaty bodies, but it has also led some states to disapprove of their sources and methods. As state ratification has increased, most of the treaty bodies have struggled to address their mounting workloads within the time and resources provided to them by the General Assembly, creating a backlog of work. Some of the treaty bodies’ mandates partially overlap with one another, and in the last eleven years, states have created four new treaty bodies, further increasing the demands of the ‘treaty body system’ on states and the UN budget.
The UN has undertaken a number of efforts to address these challenges over the past thirty years, some of which were recently described by Michael O’Flaherty in an opinion piece published by the Universal Rights Group. The most recent of these was a 2009-2012 initiative by the High Commissioner for Human Rights Navi Pillay aimed at ‘strengthening’ the treaty bodies. This effort involved a series of ‘multi-stakeholder’ meetings and provoked substantial reflection by current and former treaty body experts, civil society organizations, national human rights institutions, the UN secretariat, academics and member states.
In late 2011, a handful of states unhappy with the evolution of the treaty bodies, most prominently Russia and China, reacted to the anticipated end of the High Commissioner’s consultations by proposing a separate, state-led reform process. These states criticised aspects of the treaty bodies’ work, for example the development of new procedures that burdened states parties with ‘extraneous obligations,’ giving undeserved weight to ‘unverified’ information from NGOs, and failing to adequately avoid politicisation and selectivity. Some proposed that states should negotiate a ‘code of conduct’ for the treaty body experts and create an accountability mechanism to hold them to better standards of behaviour.
Alleging that the High Commissioner’s process had ignored – or at least insufficiently privileged – states’ views on the treaty bodies, these states initiated the General Assembly’s intergovernmental process. Their February 2012 resolution establishing the process was put to a vote, with 85 states in favour, and 66 abstentions, revealing widespread discomfort with the initiative. At the same time, many states acknowledged that the General Assembly would eventually need to act on the High Commissioner’s recommendations, particularly in response to her anticipated request for additional UN funding for the treaty bodies, which the Assembly would need to provide.
State consultations began in July 2012, once the High Commissioner had published her final report on ‘treaty body strengthening.’ The intergovernmental process was characterised by contentious negotiations between groups of states with divided positions and disparate views. Some sought to require the treaty bodies to reform their procedures in a manner that would increase their deference to states. Others sought to protect the autonomy of treaty bodies and preserve their independence. Some acknowledged that the treaty bodies required more meeting time and staff support in order to do their work effectively, but they were reluctant to significantly increase existing funding levels ($52 million in 2012, $47.4 million paid for from the regular UN budget). These states sought ways to limit the treaty bodies’ operating costs in order to be able to expand their annual meeting time without simultaneously increasing resource levels.
After several rounds of negotiations, the General Assembly agreed in principle on a draft resolution to conclude the process on February 11, 2014. The Assembly’s Fifth Committee then considered the resolution’s anticipated impact on the UN budget, reaching agreement on it in March 28. The General Assembly adopted the resolution by consensus on April 9, 2014, bringing the process to a close.
The resolution reflects compromise positions on the two most contentious issues that arose during the process: treaty body independence and resources. Significantly, the resolution upholds the principle of self-regulation by the treaty bodies of their procedures and of the conduct of their members. It rejects proposals to give states a formal supervisory role over them or to encourage the adoption of a ‘code of conduct’ and accountability mechanism for treaty body experts. Yet it also calls on treaty bodies to reform many of their procedures to bring them in line with one another, and it recommends that they give particular consideration to states’ views on these procedures as they do so. It also suggests that the ten chairpersons of the treaty bodies should be given greater authority to modify the treaty bodies’ procedures and that states should direct complaints to them about individual experts’ conduct. It does not seek to prevent experts from considering information from NGOs, but it does recommend that the treaty bodies put page limits on such submissions, even though these are not processed by the UN and have no impact on the treaty bodies’ costs.
The resolution also increases the treaty bodies’ current allocation of meeting time, providing a 22% increase over their 2012 levels. It does this according to a formula that indicates the amount of time the treaty bodies should be authorised to meet per year based on current workloads. This formula should encourage the General Assembly to provide adequate meeting time to the treaty bodies in the future, even as their workload increases.
However, in order to secure donor state support for this scheme, the resolution also requires the treaty bodies to make important practical changes to the way they work. In particular, the resolution limits the treaty bodies’ use of the UN’s costly documentation, interpretation and translation services. It also requires states to limit their use of documentation services by setting page limits on their reports to the treaty bodies. These changes reduce the operational costs of the treaty body system by $19 million per year (37% of the system’s total cost in 2012), making it possible for the General Assembly to increase the treaty bodies’ meeting time without needing to simultaneously increase the UN funding to support them. The General Assembly resolution also diverts $4.5 million of these saved operating costs away from the treaty body system to create a UN capacity-building program for states seeking assistance in complying with their treaty obligations, a key priority for some state negotiators.
The conclusion of the intergovernmental process does not end the General Assembly’s involvement with the treaty bodies: it will be asked to allocate resources to them every two years, and the resolution commits it to review the treaty body system again in 2020. Nevertheless, in the wake of this intergovernmental process, all treaty body stakeholders should take this opportunity to reconsider the more ambitious vision set out in the High Commissioner’s report.
In the short term, states should consider how to accomplish the High Commissioner’s key goal: achieving substantially greater compliance by states with their reporting and human rights obligations under the treaties. Her report called on all states to create national mechanisms to prepare their reports to the treaty bodies and to ensure these mechanisms carry out multi-stakeholder consultations, evaluate the implementation of treaty body recommendations and generate national debates on human rights protection in doing so. Member states should consider this proposal and take steps to more effectively engage with the treaty bodies in the future.
The High Commissioner also envisaged the treaty bodies working as a system and aligning their procedures, making engagement with them more straightforward and predictable for states, NGOs and others. All treaty body experts should reflect on the High Commissioner’s proposals, and on the views expressed in the General Assembly resolution, and determine within each treaty body how best to encourage states to comply with their obligations while maintaining independent and rigorous scrutiny of their human rights performance.
The High Commissioner also called for significantly greater public awareness of and engagement with the treaty bodies’ work. She proposed for their meetings to be webcast, and the General Assembly resolution provides rhetorical – but not financial – support for this. Member states and the Office of the High Commissioner (OHCHR) should endeavour to create this capacity promptly. The High Commissioner also called on states to protect all individuals and groups seeking to engage with the treaty bodies from reprisals and ensure accountability and redress where reprisals occur. States, the treaty bodies and OHCHR should take further steps in this regard.
The High Commissioner also envisioned effective treaty bodies, able to consider states’ reports and individual communications submitted to them within a short period of time and called for the treaty bodies’ work to be harmonised with other human rights mechanisms and to inform the activities of other UN actors. OHCHR has a vital role to play in ensuring that the treaty bodies continue to receive the support they need to be effective, even as their workloads increase, and even if the resources provided by the General Assembly to the treaty bodies proves inadequate. OHCHR also can take steps to facilitate greater communication among the treaty bodies and with the Special Procedures of the Human Rights Council and can continue to press all UN agencies and staff to ensure that their work is consistent with the treaty bodies’ recommendations.
The General Assembly’s intergovernmental process on human rights treaty body reform has come to an end, addressing some of the more pressing resource questions facing the treaty bodies and wrestling with deeper questions about their methods of work. However, it leaves many important issues unresolved. Much more can and should be done to ensure the treaty bodies have the greatest possible impact on the promotion and protection of human rights.
Associate Director, Jacob Blaustein Institute for the Advancement of Human Rights, New York, NY