Tuesday, May 23, 2017

Review of 2005-2006 treaty body reform process

[my handout from 2 day workshop/Geneva]

Summary of treaty body reform process in 2005-06

By Penny Parker
Geneva for Human Rights/The Advocates for Human Rights

Date prepared: May 20, 2017

The unified standing treaty body concept – a brief summary.

Context:

  • The system comprised 7 treaty bodies at the time; 3 more were pending (Disappearances, Disabilities, and Subcommittee on Prevention of Torture). We now have 10 treaty bodies.
  •  Three treaty bodies had individual complaint mechanisms then; now all but CMW and SPT have such mechanisms (8)
  •  115 experts in the treaty body system (from about 60 countries); now there are 172 experts in the system (from about 80 countries)
  •  57 weeks of sessions; now there are 96 weeks in 2017, but this may go down in the next biennium budget
  •  the general sense was that the growth in the system was at or near its breaking point
  •  backlogs/reporting compliance – only 8 countries at the time were current on all of their reporting; today this number is much higher – 34 countries have no overdue reports today
  •  Secretary General Kofi Annan had called for greater emphasis on human rights in the UN activities, and proposed a doubling of the UN human rights budget in the next 5 years (2006-2010). The doubling pledge was also adopted by the World Summit in 2005.
  •  Human Rights Council & UPR mechanism were just established in 2006
  •  The Secretary General had asked the new High Commissioner, Louise Arbour, for proposals, to implement major treaty body reform. She responded with the unified standing treaty body.  First proposed in a Plan of Action in late 2005. A concept paper was produced by March 2006 with more details. The original plan had been to call an “all hands” state parties meeting during 2006 to “vote” on a new system.  This was tentatively postponed to 2007, but by the end of the Malbun II workshop in July 2006, it appeared all but dead. No states party meeting was ever called to consider the proposal.

From the Secretary General’s report, In Larger Freedom, 2005:

“147. But the human rights treaty bodies, too, need to be much more effective and more responsive to violations of the rights that they are mandated to uphold. The treaty body system remains little known; is compromised by the failure of many States to report on time if at all, as well as the duplication of reporting requirements; and is weakened further by poor implementation of recommendations. Harmonized guidelines on reporting to all treaty bodies should be finalized and implemented so that these bodies can function as a unified system.”

Concerns about the treaty body system at the time:

  • ·Backlogs (but only 2 treaty bodies had serious backlogs at the time; the average time from report submission to report review was 17 months, which is about the right length of time if NGOs are going to get an opportunity to comment on the state’s report and the state’s response to the list of issues). Backlogs of individual complaints was another matter – seriously delayed results by both the Human Rights Committee and the Committee Against Torture.
  • Overdue reports/lack of compliance with reporting obligations
  • Lack of visibility of the treaty body system to the world at large
  • Overlaps, duplicate questions and duplicate requests on reporting
  • Concerns about possible conflicting jurisprudence
  • If trends continued treaty bodies would become victims of their success – if all states began reporting as required, the system would sink; it couldn’t possibly absorb the increase in workload
  • Poor quality of experts
  • Lack of uniformity in procedures, no coordination or harmonizing of working methods

The unified standing treaty body proposal

  • A single treaty body, handling all state reports and all individual complaints
  • Meeting year round, permanently in Geneva
  • 25 professional experts, high job grade, truly expert
  • Consolidated reports would be submitted by states every 3-5 years, addressing all of their treaty obligations in a single report
  • Typical review would be 5 days, perhaps some of the review would be in plenary and some in parallel chambers (assumes 7 treaty bodies, but now we have 10 such bodies, so perhaps more than 5 days would be required?)
  • If we assume 190 countries reporting timely, this would mean at least 190 weeks of state reports reviewed – if over 3 years = 62 weeks per year; if 4 years = 48 weeks per year; if 5 years = 36 weeks per year. So the pressure would probably be to stretch out the time between reports.
  • Cost estimates of the new system were preliminary, sketchy and seemingly misleading. No real apples to apples comparison was provided. The general impression was that a unified standing body would cost considerably more than the current system
  • How could such a structure get adopted legally in the UN system? These are treaties, so the treaties themselves in some cases specify how they are to be amended. If not specified, then the Vienna Convention on the Law of Treaties would apply. A non-paper on legal options was prepared by the OHCHR just before the Malbun II workshop in July 2006; it was presented at the workshop, and discussed in one of the breakout groups. The answers were very preliminary and needed much more work.  Possible approaches included:
o   Amendments to all 7 treaties; wait to implement the single treaty body structure until all 7 amendments were adopted and ratified by all state parties. Unanimity.
o   An amending protocol that would purport to amend all 7 treaties in one instrument; call a state parties meeting, adopt it “by consensus” without taking a vote.  It was not clear to me whether it was being proposed that this would be all that was required, or whether this consensus vote would only shorten the adoption process, but that the amending protocol would still have to be ratified by all state parties to take effect
o   Some sort of transition step between the old system and the new system, being careful not to create a “protection gap”. It was not clear to me how this would work.
o   Parallel systems in place at the same time was viewed as a “no go” – could lead to conflicting jurisprudence and horrendous complexity in scheduling, processing, and cost

The main criticisms of the unified standing treaty body proposal:

  • Loss of the specificities of each treaty that are enjoyed in the current system
  • It does not address many of the problems in the current system, and it creates new problems
  • It starts to look like a world human rights court, something to which many governments are extremely averse
  • If amendments to treaties can really take place without unanimity, it seems like a self-amending mechanism, that starts to encroach on sovereignty of states
  • Seems poorly thought out from a practical standpoint, including cost, transition from old to new system, and the treaty amendment process that would be required to put it in place

Malbun II, Liechtenstein, July 14-16, 2006. 
·       About 70 people attended
·       7 staff from OHCHR
·       5 from the host government, Liechtenstein
·       11 TB experts
·       35 governments
·       4 NGOs (Amnesty, APT, NGO for the CRC, & Advocates for Human Rights)
·       4 UN agencies
·       3 NHRIs
·       See outcome document at OHCHR website. A/61/351. http://www.ohchr.org/EN/HRBodies/HRTD/Pages/TBStrengthening.aspx


Wednesday, January 25, 2017

Backlog? What backlog?

It is often claimed that the treaty body system is broken and needs to be fixed because it can't keep up with its backlog.  While there are indeed backlogs of individual complaints in the system that need to be addressed, it is not accurate to say that the most common treaty body activity, the review of state reports, is suffering from chronic backlogs.
In fact, as of the end of 2016 only one treaty body had a serious backlog of state reports to review, the Committee on the Rights of Persons with Disabilities (CRPD). All of the other treaty bodies were in reasonable balance between the number of reports to be reviewed and the availability of time on its meeting schedule to review them. 

Definition of backlog


First, how do we define a backlog for these purposes? To my knowledge, there is no official definition. My definition is that there should be enough state reports pending to fully schedule the Committee's meeting time at least one year but no more than 1.5 years ahead. 

This is a definition that permits full NGO participation in the treaty body process. Unless the Committee's schedule is known at least a year in advance, and preferably 18 months in advance, there is not enough time for NGO participation, which includes the following steps: 

  • obtain a copy of the applicable state report and review it
  • prepare an NGO shadow report and submit it to the treaty body
  • provide NGO input into the list of issues compiled by the treaty body
  • receive and review the state party's responses to the list of issues
  • provide NGO input to the treaty body on the responses to the list of issues by the state party 


Current backlog figures


Here is a summary of the pending state reports in the human rights treaty system by the end of 2016: 

-->
# of reports normal annual pace backlog in years
CMW 8 8 1
CESC 20 17 1.2
CERD 25 20 1.3
CCPR 27 21 1.3
CAT 25 18 1.4
CRC 46 32 1.4
CEDAW 43 27 1.6
CED 11 5 2.2
CRPD 51 14 3.6

This means that the first six treaty bodies fall below the 1.5 backlog figure. But CEDAW is very close with 1.6 and CED is a relatively new Committee experiencing an uptick in reports recently, but it should be able to easily fit the 11 pending reports into a shorter schedule. So it is only the CRPD that has some serious scheduling difficulties in reducing its backlog. 

A few other footnotes to this table:

  1. I have not included the SPT in this analysis since the nature of their reporting system is different. It's not the number of state reports that defines their backlog, but a more detailed analysis of pending state visits, delays if any in producing Committee reports, and then delays if any in receiving state party replies, and Committee follow up replies.  So I haven't tried to evaluate whether the SPT is in a backlog situation currently.
  2. The CMW reports pending is a bit of a misnomer. This Committee has traditionally received too few reports to keep their workload busy. As a result they have moved to a so-called "master calendar" system whereby they schedule the review of country situations whether or not a report has yet been received. Often times the report arrives at the last minute, without adequate time to review it or for NGO participation. The 8 reports shown in the above table only reflects that 8 countries have been scheduled for review during the CMW's 2017 sessions. Most of these reports have not yet been received by the Committee. So, no backlog for this Committee.
  3. The numbers of reports currently pending was obtained by reviewing each treaty body's pending future schedules, and cross checking to the extent possible with the OHCHR treaty body database and statements made in the opening sessions of each treaty body (for example, recent statements made by the Secretariat of the Committee on the Rights of the Child when that Committee opened its session earlier this month). It is possible that some of these figures are not accurate, but they appear to be reasonably close to the historic patterns and other corroborating sources mentioned.

Conclusion


The CRPD needs to address its backlog of state reports. Perhaps it can use some of the tools that the other treaty bodies have used to balance their workload when a backlog builds up -- parallel chambers, schedule more reports per session, schedule more meeting time per session, more staff support, more use of simplified reporting tools, etc.  Or perhaps there are other tools, not yet used by any of the other treaty bodies that would best fit the needs of this Committee. But the point to underscore here is that this backlog problem is essentially a problem suffered by a single treaty body, not the entire system. 

The other 8 treaty bodies that review state reports are reasonably in balance between workload and average waiting time before a report is scheduled for a hearing.  If this waiting time were to be any shorter than it currently is for these 8 treaty bodies, it would begin to undercut the ability of NGOs to review and participate in the state report reviews. 

To the extent the system's backlogs are driving calls for reform or change, I would suggest that such calls are not based on supporting facts. Other aspects of the treaty system need more attention and would be more directly relevant to strengthening and improving the effectiveness of the treaty body system. 

Tuesday, January 3, 2017

A modest proposal for state reports & lists of issues

The UN human rights treaty bodies receive and review about 150 reports per year from governments, on their human rights compliance.  There are a few new items that could be added to those reports that would greatly aid in evaluating the system. I would encourage each treaty body to add
these items in their reporting guidelines and/or in each list of issues submitted to the state party whose report is to be reviewed:

1. An index or table of the prior recommendations


The state report or associated materials should contain a table or index showing where each of the Committee's prior recommendations has been answered.  This will assist in evaluating the state party's level of implementation of its human rights obligations.

2. Government website link


As part of its dissemination of information to its stakeholders, each state party should be asked to create and maintain a government-sponsored website where information about that state's treaty body obligations are described. The website address should be included in the report or in the response to the list of issues. I've written on this topic before. Here is my suggestion for the minimum content of such a website: 

    the human rights treaties to which the state is a party
    a link to each of the UN treaty body websites for which it is a party
    the latest reports submitted to each treaty body
    the latest common core report submitted to the treaty body system
    the latest concluding observations of each treaty body
    the schedule of next appearances before each treaty body
    upcoming deadlines for submitting next reports or follow up information
    progress toward implementation and consultation opportunities for civil society
    information about the live and archived treaty body webcasts of appearances of the government
    the site should also be disability accessible in its design
    the content of the site should be regularly updated; the site should indicate when the content was last revised and the government's policy on how frequently it intends to update the site in order to keep the information current 

Once a state party creates such a website, the link should be added to the treaty body pages that describe that state's human rights activities.

 

3. Compliance with word limits


Each report should indicate in its introductory remarks the number of words contained in the report, to indicate whether the suggested word limits have been complied with.


4. National implementation mechanism


Each report or response to list of issues should indicate whether the state has established a national mechanism for treaty body reporting and follow up, as recommended in the High Commissioner for Human Rights' recent practical guide on this subject.  

If no such unit has yet been established, the state should be asked to indicate whether there are any future plans to do so and the anticipated timeline for creation of such a unit. 









Saturday, December 24, 2016

North Korea ratifies the UN disability convention

The Democratic Peoples Republic of Korea has now ratified, without reservation, the United Nations
Convention on the Rights of Persons with Disabilities (CRPD). According to the official records of the UN Office of Legal Affairs Treaty Collection, the ratification became effective on December 6, 2016. Pursuant to the terms of the Convention, the government will now be responsible for submitting a report on its compliance to the treaty within 2 years, by January 6, 2019, and thereafter every 4 years.

Other treaties ratified


This is now the sixth of the twelve major UN human rights treaties that the DPRK has ratified. The others are:

  • International Covenant on Civil and Political Rights (1981)
  • International Covenant on Economic, Social and Cultural Rights (1981)
  • Convention on the Elimination of all forms of Discrimination Against Women (2001)
  • Convention on the Rights of the Child (1990)
  • Optional Protocol to the Convention on the Rights of the Child, regarding the sale of children, child prostitution and child pornography (2014) (OPSC)


Reporting compliance


According to the UN database on reporting compliance, the DPRK has failed to submit reports timely for the two International Covenants referenced above -- both are more than 8 years overdue.  No reports are currently due for CEDAW or the CRC, but both items were submitted only recently (April and May 2016) after delays of 10 years and 4 years. Its initial report under the OPSC is due this month, December 10, 2016; there is no information yet regarding whether this report has been filed on time. 

Total ratifications of the CRPD


Nonetheless this latest ratification by the DPRK is welcome news. The Convention on the Rights of Persons with Disabilities is rapidly approaching universal ratification. It now has 172 state parties that have ratified it (or acceded to it), which represents approximately 90% of the total possible countries. 

Saturday, July 23, 2016

Voting results 2016

Five of six elections to be held in 2016 have now taken place, filling expiring roles on the UN human rights treaty bodies. These elections covered 47 candidates from 38 countries. The Committees affected were CEDAW, CESCR, CCPR (HRCttee), CRC and CRPD. The 6th election to be held later this year, for 12 of the 25 members of the Subcommittee on the Prevention of Torture, will be in October. Elected members will begin service in 2017.

Some results are surprising.  Some indicate some backsliding on prior successes.  Lets take a look at the results so far.

Background


This year a group of NGOs have combined efforts to present information on the candidate profiles of persons running in four of the six elections discussed here (CEDAW, CRC, CRPD and HRCttee).  Candidates were asked to fill in questionnaires on their experience -- some of whom complied -- and you can see those answers at that website.

The Office of High Commissioner of Human Rights has also recently published a 25 page brochure on Human Rights Treaty Bodies and Election of Treaty Body Members (A Guide for UN Delegates Based in New York) at

http://www.ohchr.org/Lists/MeetingsNY/Attachments/38/treaty-body-elections-guide.pdf

and a Handbook for Treaty Body Members at

http://www.ohchr.org/Documents/Publications/HR_PUB_15_2_TB%20Handbook_EN.pdf

both of which provide useful information on the elections process.

Brief summary of each election


CESC


Elections of the Committee on Economic, Social and Cultural Rights (CESC) were held in New York by the Economic, Social and Cultural Council, on April 5, 2016.  

There were four new members and five re-elected members.  There will now be 5 women and 13 men on the Committee, a better balance than the previous 3 women and 15 men.

Newly elected:

  • Ms. Laura Maria Craciunean (Romania)
  • Ms. Sandra Liebenberg (South Africa)
  • Ms. Lydia Carmelita Ravenberg (Suriname)
  • Mr. Michael Windfuhr (Germany)
Re-elected:
  • Mr. Mohamed Ezzeldin Abdel-Moneim (Egypt)
  • Mr. Chen Shiquiu (China)
  • Mr. Waleed Sadi (Jordan)
  • Mr. Zdzislaw Kedzia (Poland)
  • Mr. Mikel Mancisidor (Spain)


CRPD


Elections of the Committee on the Rights of Persons with Disabilities (CRPD) were held in New York on June 14th to 16th.  

There were seven new members and two re-elected members.  Since five women's terms had expired and all were replaced by men, the gender mix is now only one woman and 17 men (formerly, it was 6 women and 12 men).

Newly elected:

  • Mr. Ahmad Alsaif (Saudi Arabia)
  • Mr. Imed Eddine Chaker (Tunisia)
  • Mr. Jun Ishikawa (Japan)
  • Mr. Samuel Njuguna Kabue (Kenya)
  • Mr. Robert George Martin (New Zealand)  
  • Mr. Valery Nikitich Rukhledev (Russian Federation)

Re-elected:

  • Mr. Monthian Buntan (Thailand)
  • Mr. Laszlo Gabor Lovaszy (Hungary)
  • Mr. Martin Babu Mwesigwa (Uganda)                                                                                           

CEDAW


Elections of the Committee on the Elimination of Discrimination Against Women (CEDAW) were held in New York on June 21st.  Historically the composition of this Committee has been almost all women. Currently there is one man and 22 women. It would seem that this type of gender mix is also unhealthy -- it tends to diminish or marginalise the importance of the Committee, and deprive the Committee of a healthy mix of different views and perspectives. 

The elections produced six new members and five re-elected members.  The gender mix continues the same, with 22 women and 1 man.

Newly elected:

  • Mr. Gunnar Bergby (Norway)
  • Ms. Marion Bethel (Bahamas)
  • Ms. Rosario G. Manalo (Philippines)
  • Ms. Bandana Rana (Nepal)
  • Ms. Wenyan Song (China)
  • Ms. Aicha Vall Verges (Mauritania)

Re-elected:

  • Ms. Nicole Ameline (France)
  • Ms. Hilary Gbedemah (Ghana)
  • Ms. Nahla Haidar (Lebanon)
  • Ms. Dalia Leinarte (Lithuania)
  • Ms. Theodora Nwankwo (Nigeria)

CCPR


Elections of the Human Rights Committee under the Covenant on Civil and Political Rights (CCPR) were held in New York on June 23rd.  

There were three new members and six re-elected members.  There will now be 8 women and 10 men on the Committee, a better balance than the previous 5 women and 13 men. 

Newly elected: 
  • Ms. Marcia Kran (Canada)
  • Ms. Ilze Brands Kehris (Latvia)
  • Mr. Christof Heyns (South Africa)
Re-elected:
  • Ms. Anja Seibert-Fohr (Germany)
  • Mr. Yuval Shany (Israel)
  • Mr. Koita Bamariam (Mauritania)
  • Ms. Tania Maria Abdo Rocholl (Paraguay)
  • Mr. Ahmed Amin Fathalla (Egypt)
  • Mr. Jose Manuel Santos Pais (Portugal)


CRC


Elections for the Committee on the Rights of the Child (CRC) were held in New York on June 30, 2016.  Five new members and four existing members were elected.  There was a net gain of one more woman member so the gender ratio becomes 10 women and 8 men (previously it was 9 women and 9 men). 

Newly elected:
  • Mr. Cephas Lumina (Zambia)
  • Ms. Mikiko Otani (Japan)
  • Mr. Luis Ernesto Pedernera Reyna (Uruguay)
  • Ms. Ann Marie Skelton (South Africa)
  • Ms. Velina Todorova (Bulgaria)
Re-elected:
  • Ms. Amal Salman Aldoseri (Bahrain)
  • Ms. Olga A. Khazova (Russian Federation)
  • Mr. Benyam Dawit Mezmur (Ethiopia)
  • Ms. Renate Winter (Austria)


Gender balance


As noted in the above summaries, gender balance has remained essentially the same after these five elections, although one treaty body (CRPD) has worsened considerably, one (CEDAW) has stayed the same (unbalanced), and three have improved their gender balance slightly. Here is a table showing the data: 


Treaty body
women
percent
comment
last election
CRPD
1 of 18
6%
under balanced
June 2016
CED
2 of 10
20%
under balanced
June 2015
CESC
5 of 18
28%
under balanced
April 2016
CMW
5 of 14
36%
under balanced
June 2015
CERD
7 of 18
39%
under balanced
June 2015
CAT
4 of 10
40%
under balanced
Oct 2015
CCPR
8 of 18
44%

June 2016
SPT
13 of 25
52%

Oct 2014
CRC
10 of 18
56%

June 2016
CEDAW
22 of 23
96%
overbalanced
June 2016
TOTAL
77 of 172
45%


*The total ratio remained the same but CRPD got worse, CEDAW stayed the same and the others got slightly better. Since CEDAW has an overbalance of women (96%), it brings the overall average up (to 45%). When you remove CEDAW from the count the system-wide average becomes 37%.  

Reporting compliance


Another interesting analysis is to look at the reporting compliance of states who nominate experts from their country to serve on one or more of these Committees.  Of the 38 countries who nominated one or more candidates who won a seat in these particular elections: 

  • 30 or 79% were overdue in submitting one or more reports under the treaty instruments (in other words, only 8 countries were up to date on all reports owed under the treaty body system when these candidates were nominated for election)
  • eight (8) countries (21%) were overdue in submitting their current report to the particular treaty body whose election was at issue -- and this included countries that were 10 years, 12 years, 13 years and 21 years overdue in submitting their current report!

Should countries who are this late in submitting their own reports to these Committees be permitted to nominate candidates in the elections process? Do states who vote on these candidates know about these reporting compliance figures when they vote? Would more transparency in these figures help to ensure better reporting compliance? 

Some discussion of these issues would seem appropriate as part of the treaty body strengthening process, in light of the generally held view that the elections process should be strengthened and improved, and that reporting compliance also needs to be improved. 


Conclusion


With five of six elections now complete in 2016, analysis of the results can begin. In determining what type of treaty body system we want, the election of members matters. The goals should include good gender balance and highly qualified candidates.  It is submitted that evaluating the reporting compliance record of states who nominate candidates is also fair game.