International Treaty Body Reform Should Protect Human Rights on the Ground

The United Nations human rights treaty bodies constitute a cornerstone of the international human rights supervision system.  The first of the ‘committees’ commenced its work in 1970.  By now, there are 9 of them with a total of 145 elected members.  We are just a handful of ratifications away from the creation of the 10th committee under the International Convention for the Protection of All Persons from Enforced Disappearance.  All but one of the treaty bodies review periodic reports submitted by States, most issue General Comments or Recommendations regarding the provisions of the various treaties, and many consider individual communications and undertake inquiries, while one operates largely through field missions. For all their effectiveness and accomplishments it has long been recognised that the treaty bodies would benefit from institutional and other reforms.  The former UN High Commissioner for Human Rights, Louise Arbour, identified a litany of concerns, including:

• the extent to which States accept the human rights treaty system on a formal level, but do not constructively engage with it;
• the ad-hoc manner in which the treaty body system has grown, with an overlap of provisions and competencies;
• the growth in the number of treaties and ratifications, resulting in a steep increase in the workload of the treaty bodies;
• the low levels of public awareness of the treaty body system;
• the uneven levels of expertise and independence of treaty body members;
• the variable quality of State party reports to treaty bodies;
• the fact that treaty bodies often have insufficient information to enable them to undertake a full analysis of country situations; and
• the absence of effective, comprehensive follow-up mechanisms for recommendations.

Account needs also to be taken of the broader human rights protection environment that the treaty bodies inhabit.  For instance, it remains unclear what relation they should have with UN Human Rights Council’s Universal Periodic Review procedure.

There have been repeated efforts to address the concerns and these have resulted in modest improvements in procedures and harmonisation of working methods.  Efforts to achieve more sweeping changes have tended to fail. For instance, former UN Secretary-General Kofi Annan got nowhere with his call for the eventual transition to a single state report that would meet a state’s responsibilities to all treaty bodies.  That idea was rejected by stakeholders, who feared that rights-holders such as children and women would be rendered invisible in a single homogenised report.  In 2005, Louise Arbour proposed the unification of the various committees into a single unified treaty body.  Her idea went nowhere.  The need for a root and branches overhaul of the system did not, however, go away.  Most recently, the current High Commissioner, Navi Pillay, has called for proposals which could enable the system to be more rational, coherent, coordinated and effective.

In response to her call, on 19 November 2009, a group of 35 serving or former members of the treaty bodies issued, the ‘Dublin Statement on the Strengthening of the UN Human Rights Treaty Body System’.  Signatories include members or former members of all the treaty bodies and come from all geographical regions of the world.  The initiative was organised by the University of Nottingham Human Rights Law Centre, with the financial support of the Irish Government.  You can download the statement at: www.nottingham.ac.uk/hrlc/documents/specialevents/dublinstatement.pdf.

The publication of the Dublin Statement was in recognition that the High Commissioner has opened an opportunity for a newly invigorated policy-level process of reflection and action.  The statement does not present detailed solutions or specific reform outcomes.  Instead it is intended as a recapitulation of the elements necessary for an effective process of reform, marking out what its authors consider to be key parameters, objectives and methods for such a programme.  The statement seeks to identify what might be termed a ‘road-map’ for a reform that abides by identified standards of good practice.  In identifying each of the elements of the road-map, the statement distils lessons from previous reform efforts and initiatives.  This exercise can be illustrated with just a few examples:

1. ‘Reform should enhance the capacity of the treaty body system to address the human rights contained in the respective treaties in a manner that respects the universality, indivisibility and the equal significance of all human rights’.  At first sight this observation may appear innocuous.  However, it addresses one of the dominant concerns in the discussions about unified reporting and the unified treaty body; that reform must not put at risk the specificity of protection provided to diverse rights-holders.
2.  A lack of consultation prior to the publication of High Commissioner Arbour’s Concept Paper may have contributed to the demise of the unification and related proposals.  In any case, it is self-evident that reform must take account of all relevant points of view.  This consideration is addressed in the statement where it is indicated that ‘reform should always be undertaken in consultation among concerned stakeholder’.  The text adds a number of observations regarding the nature of consultation, such as that it be on the basis of clearly formulated issues and questions, and adopt a human rights-based approach.
3. An area of risk that featured large in the previous reform discussions was that of the uncertainty inherent in any re-negotiation of the treaties.  The statement recalls that a considerable degree of reform can be undertaken without any need for treaty re-negotiation.  With regard to reforms that would demand treaty changes, it observes that any reform goals that require such a process must be of such an importance as to ‘justify the protracted and sometimes unpredictable process of amendment’.

Many past reflections on issues of treaty body reform concentrated on the role and responsibilities of treaty body themselves, States, and sometimes the United Nations secretariat.  However, systemic reform requires the engagement of all the relevant stakeholders, including NGOs and human rights defenders, national human rights institutions and academia.  All of these are addressed by the Statement and specific reform areas are addressed for each of them.

The test of the effectiveness of the Dublin Statement will be its impact in stimulating a new round of reflection that avoids the mishaps of the past.  Signs so far are encouraging.  The statement has been debated in the committees themselves and in their periodic ‘inter-committee’ meetings.  It has been centre-stage in various briefings organised by the High Commissioner’s Office for NGOs and States.  It has helped put treaty body reform back on the agenda for national human rights institutions and NGOs.

These are, of course, just first steps.  The moment will soon arrive for some specific reform options to be put for review.  That will lead to a very sensitive phase of debate, success or failure being determined by the capacity of States, NGOs, treaty body members and the other stakeholders to find common ground.  The facilitatory role of the High Commissioner will be of crucial significance.  Only time will tell whether the efforts will lead to significant achievements.  However, prospects will remain promising if all involved keep in sight what the Dublin Statement describes as the ultimate purpose of all reform: the enhanced protection of human rights at the domestic level.

Michael O’Flaherty FRSA is a member of the UN Human Rights Committee and Professor of Applied Human Rights and Co-Director, University of Nottingham Human Rights Law Centre.  He has also served as Secretary of the UN Committee on the Elimination of Racial Discrimination.