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.


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. 

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