Perhaps a new treaty on the rights of older persons?

The UN General Assembly's Third Committee approved a resolution Monday (Nov 27th) to begin the work on a new draft treaty on the rights and dignity of older persons.  The approval vote gives some indication of how ambivalent states feel about a new human rights treaty -- the 11th treaty if things progress to a final result.  The vote was 53 for, 3 against, and 109 abstentions.  The resolution (L.9 rev.1) now goes to the full General Assembly where it is expected to be adopted as part of the Third Committee "package" of resolutions. No further debate is expected.

The resolution calls for a working group to be established to consider the elements and advisability that might go into a possible treaty.  An earlier draft of the resolution had called for the first draft treaty text by next fall, but that language has been softened in this final resolution to simply ask for a report on progress from the working group by next fall.

The issue of course is whether the system has room for yet another treaty body.  Without additional resources the addition of another body puts the squeeze on the existing committees.  More must get by with even less.  Yet it is also apparent that a separate treaty dedicated to a particular group's rights tends to focus attention more on that group than if it is simply a small part of other treaty mandates.  This idea of creating a treaty dedicated to older persons has been percolating along for some time now, with renewed focus coming out of the Second World Assembly on Ageing held in Madrid in 2002.

So the debate will surely continue on how best to build a robust treaty system that can make room for new members like a treaty on the rights and dignity of older persons, while at the same time growing organically and strengthening its existing structures.  Stay tuned.

Here is a link to the text of the resolution. 

Liberty & security of person

Article 9 to the International Covenant on Civil and Political Rights covers the protections of  liberty and security of person.  This subject matter includes the right against secret detention, against arbitrary arrest, to be informed of the charges against oneself, to be able to challenge an unlawful detention in a court, and the protection against reprisals.

The Human Rights Committee has decided to issue a new general comment on this article, to provide interpretive guidance on what it means. Before releasing a first draft of the general comment, they invited members of the public, including academics and human rights organisations, to submit written statements and participate in a half day hearing and discussion on October 25th. I attended and submitted a presentation on behalf of the organisation I was representing, the Advocates for Human Rights.  Copies of all of the statements submitted can be found at the Committee's website.

Once adopted, the Committee's statement will become its General Comment 35.  It will replace the previous General Comment 8 on Article 9 which was adopted in 1982 and is generally considered out of date and not as substantively detailed as the General Comments that have been issued in recent years on other important articles of the treaty.

This was the first time the Committee had invited public input before preparing a draft of a general comment.  The next step will be for the assigned Committee member, Mr. Gerald Neumann, to prepare a first draft of the new general comment and distribute it for comment.  Usually the process entails two or three additional drafts and review sessions by the Committee, with final adoption probably occurring sometime next year.

The general sense seemed to be that the procedure this time of having a half day general discussion before the first draft was issued was useful and that the comments received were very helpful. Two organisations who had indicated an interest were not able to attend, at least one of whom indicated afterward that the expense of attending (including expensive air travel) for an assigned 3 minute speaking slot was not cost justifiable for their organisation.  There seemed to be a few other comments about the method of distributing information about the opportunity and the time allotted for each speaker.

My comments at the hearing focussed on the drafting style and structure of the General Comment, encouraging the Committee to think differently about how these types of official documents are prepared in the future, given the significant increase of technologies and social media to distribute information.  Other speakers focussed on the interaction between armed conflict situations and other domestic human rights situations (humanitarian law vs. human rights law), the special cases of children in detention, mentally disabled in institutions, and other vulnerable groups,  states of emergency, extra-territorial application, non-refoulement, and the meaning of the term "arbitrary" as it applies to arrest and detention.

The Human Rights Committee has considered a large number of individual cases over the period since its General Comment 8 was issued in 1982 that involve various aspects of article 9.  They will also be weaving these rulings into the content of the new General Comment 35.

The Committee indicated that they would welcome additional comments from anyone who missed the opportunity to contribute to the October 25th session, or from those at the session who had additional ideas to submit.  There also seemed to be a commitment to a transparent process going forward so that those who are interested in the subject may be able to follow the developments, and comment on the various drafts of the general comment before it becomes final.

The hearing was also briefly reported in the UN press release for October 25th.

General Assembly developments

This has been a busy week for the human rights treaty bodies in the UN General Assembly. Chairpersons for nine of the ten existing treaty bodies appeared before the Third Committee this week or last week, to present their annual reports, describe developments, make requests for more resources, and answer questions put to them by various member states.  The 10th treaty body, the Committee on Elimination of All Forms of Racial Discrimination (CERD), is scheduled to appear before the Committee during the week of November 6th.

The following summary was compiled from the official UN press releases for the respective sessions.  I will cover the first 4 treaty reports in this post, and the other 5 in a later post.

CEDAW

Nicole Ameline, Vice-Chairperson of CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) testified before the Third Committee on October 15th.  She noted that this year is the 30th anniversary of the CEDAW Committee's operations.  187 countries have now ratified the treaty and 104 have accepted the optional complaint procedure.

The Committee has begun a practice of reviewing all countries who have failed to file a report for 10 years or more.  In addition an average of 24 state reports are reviewed annually. There is a current backlog of 43 reports waiting to be reviewed. Six individual complaints were also currently pending.  She said the Committee was very unhappy about the budget-related decision to move their July annual session from New York to Geneva, noting it may have a serious detrimental impact on interactions with key women's rights actors in New York.

Ms. Ameline's remarks and the question and answer session that followed are reported in the UN Press Release of the Third Committee for October 15th. (Press Release GA/SHC/4040)

CRC

The chairperson for the Committee on the Rights of the Child (CRC), Mr. Jean Zermatten, appeared before the Third Committee on October 17th. (Press release GA/SHC/4042).  He noted that the third protocol to the treaty which will launch a new individual complaints mechanism, has now been signed by 35 states and ratified by 2 states.  The protocol needs 10 ratifications before it can come into effect.  The treaty itself has achieved near universal ratification. Only 3 states remain to ratify it -- Somalia, the United Sates and South Sudan.

The Committee continues to experience significant backlogs in its capacity to review state reports. The current backlog is approximately 2 years. The CRC Committee is therefore asking for budgetary support for a permanent change to its procedure, allowing parallel chambers to review the reports.  The procedure was piloted in 2010 and worked well to increase the volume of reports that can be reviewed in a session. It essentially splits the Committee into two groups, with each group reviewing a full load of state reports. The two groups then  re-join together at the end of the session to share, discuss and adopt general recommendations.

In the Q&A session that followed, Pakistan said they rejected the "naming and shaming" approach in the field of child rights, and supported instead cooperation and coordination. Several delegations indicated general support for Mr. Zermatten's request to approve the parallel chambers working method.

CAT

Five Committee chairpersons testified before the Third Committee on October 23rd, including Mr. Claudio Grossman of the Committee Against Torture (CAT). (Press release GA/SHC/4046).  He noted that this year marked the 25th anniversary of the entry into force of the Convention against Torture.

He said the Committee continued to have serious concerns about reporting delays. Despite extra time granted by the General Assembly last year, there is a current backlog of 115 individual cases pending before the CAT Committee.  They are asking that the temporary increase of resources from 3 weeks to 4 weeks for their sessions that was granted last year, be continued (the Annual Report of CAT makes this more clear, that they are asking for the additional one week per session for both 2013 and 2014, see UN A/67/44).

In the Q&A session that followed, the representative of Cuba asked what the Committee was doing to implement the principle of objectivity and impartiality in its findings.

SPT

Mr. Malcolm Evans, chairperson of the Subcommittee on Prevention of Torture, also testified before the Third Committee on October 23rd. He noted that the Subcommittee's size has now increased to 25 members and, together with the increasing number of states ratifying the optional protocol on torture, this has caused them to change some of their procedures. This will mean an increased number of shorter visits, with fewer members on each visit and a more targeted focus.

He said that 54 states have now ratified the Optional Protocol. However, 23 states have failed to establish within the timeframe required the national preventative mechanism that is mandated by the protocol.  (Actually the latest number of ratifications would appear to be 64, not 54, according to the UN treaty ratification site, so this 54 number may be a typo in the press release).

In the Q&A session Mr. Evans also indicated that while in 2012 the Subcommittee conducted 6 visits amongst the approximate 60 state parties (in other words, each state is visited once in 10 years), the intention was to increase this pace to 12 visits per year, permitting a country visit to each state party once every 5 years.

Reports filed in the General Assembly 2012

Here is a list of reports filed so far in the UN General Assembly relating to the human rights treaties.  I've indicated in the comments column whether they are available yet and any other significant details.

Reports to the GA, 67th session, Fall 2012 – available so far (as of 10/23/12):

Doc No.	Title	Comment
A/67/38	CEDAW annual report	Available April 2012
A/67/41	CRC annual report (2 yrs)	Covers 6 sessions; available April 2012
A/67/48	CMW annual report	Available April 2012
A/67/56	CED annual report	Available April 2012
A/67/18	CERD annual report	Available 10/8/12
A/67/321	Status of CERD	Available
A/67/322	Report of the financial situation of CERD	Available
A/67/40	CCPR annual report, Vol I, II part 1 and II part 2.	Not available yet
A/67/44	CAT annual report	Available 10/22/12
A/67/48 & Corr.1	CMW annual report	The main report is available, but the Corr.1 link is empty so far.
A/67/281	Report of the status of CRPD	Available
A/67/222	Report of the treaty body chairs	Available. Report from this year’s meeting in June 2012 in Addis Ababa, Ethiopia
A/67/271	SG’s report on CED	Available
A/67/36	Report of the High Commissioner	Available 10/5/12
A/66/860	OHCHR report on treaty body strengthening measures	Issued in June 2012. Technically this one & the next several were issued in the 66th GA, but it is clearly relevant going forward.
A/66/902	Co-facilitators’ report on the IG process	Available mid-Sept 2012. Report on the intergovernmental process of the Co-Facilitators from Iceland & Indonesia
A/66/904	Note Verbale Russian Federation	Available mid-Sept 2012. Russia’s position statement on treaty body strengthening submitted Sep 14
A/RES/66/295	Intergovernmental process	Resolution of the 66th General Assembly, adopted 17 Sep 2012, extending the intergovernmental process for another year

If you are interested in any of these reports, you can download them at the UN General Assembly site, under the Third Committee's agenda. http://bit.ly/Rd9zbt

Individual case decisions in 2012

So far there have been 54 case decisions announced by the UN treaty body system in 2012.  These are opinions issued on the basis of individual complaints that have been filed by a person or persons, alleging that they have been a victim of human rights violations by their government.

The victim has won in 36 of these 54 cases.  These decisions are non-binding, so the Committee is often forced to follow up over a long period of time to attempt to get the state's compliance to its ruling. The government is usually given 3 to 6 months to submit an initial written response, confirming that it has implemented the decision.

This number of cases so far in 2012 probably represents about 50% of the total number of decisions that will eventually be issued during the full year.

The UN is still struggling to release these decisions in a timely and transparent manner.  Efforts this year to establish linked pages to each of the main treaty body sites where a table of decisions is listed is a welcome development, but the accuracy of the information on these sites is still uneven. Some decisions which can be found in the treaty body database are not included in these new tables, and other decisions are found in the new tables but not in the database.  Also the numbers of decisions issued each session often do not correspond to the numbers announced by the treaty body itself for that session. The issuance of the decision often trails the date of adoption by 3 to 6 months, sometimes longer.

Here is a listing of the decisions released so far that I am aware of. I will add case summaries of these decisions in a later post.

No.	Treaty	Case no.	Parties	Result	Session
1	CERD	46/2009	Dawas & Shava v. Denmark	Violation	Feb 2012
2	CRPD	3/2011	H.M. v. Sweden	Violations	Feb 2012
3	CEDAW	19/2008	Kell v. Canada	Violations	Feb 2012
4	CEDAW	25/2010	M.P.M. v. Canada	Inadmissible	Feb 2012
5	CEDAW	38/2010	R.K.B. v. Turkey	Violations	Feb 2012
6	CEDAW		Jallow v. Bulgaria	Violations	July 2012
7	CAT	343/2008	Kalonzo v. Canada	Violations	May 2012
8	CAT	364/2008	J.L.L. et al v. Switzerland	No violation	May 2012
9	CAT	370/2009	E.L. v. Canada	No violation	May 2012
10	CAT	382/2009	M.D.T. v. Switzerland	No violation	May 2012
11	CAT	391/2009	M.A.M.A. v. Switzerland	Violations	May 2012
12	CAT	393/2009	E.T. v. Switzerland	No violation	May 2012
13	CAT	396/2009	Gbadjari v. Switzerland	Violations	May 2012
14	CAT	413/2010	A.A.M. v. Sweden	No violation	May 2012
15	CAT	414/2010	N.T.W. v. Switzerland	No violation	May 2012
16	CAT	424/2010	M.Z.A. v. Sweden	No violation	May 2012
17	CAT	433/2010	Gerasimov v. Kazakhstan	Violations	May 2012
18	CAT	444/2010	Abdussamotov et al v. Kazakhstan	Violations	May 2012 Note: this one included an oral hearing.
19	CAT	453/2011	Gallastegi Sodupe v. Spain	Violations	May 2012
20	CCPR	1820/2008	Krasovky v. Belarus	Violations	March 2012
21	CCPR	1772/2008	Belyazeka v. Belarus	Violations	March 2012
22	CCPR	1905/2009	Khirani v. Algeria	Violations	March 2012
23	CCPR	1853/2008	Atasoy & Sarkut v. Turkey	Violations	March 2012
24	CCPR	1789/2008	G.E. v. Germany	Inadmissible	March 2012
25	CCPR	1914/15/16/2009	Musaev v. Uzbekistan	Violations	March 2012
26	CCPR	1801/2008	G.K. v. Netherlands	No violation	March 2012
27	CCPR	1627/2007	V.P. v. Russian Fed’n	Inadmissible	March 2012
28	CCPR	1829/2008	Benitez Gamarra v. Paraguay	Violations	March 2012
29	CCPR	1828/2008	Olmedo v. Paraguay	Violations	March 2012
30	CCPR	1634/2007	*Korneenko v Belarus	Inadmissible	March 2012
31	CCPR	1816/2008	K.A.L. & A.A.M.L. v. Canada	Inadmissible	March 2012
32	CCPR	2058/2011	O.D. v. Russian Fed’n	Inadmissible	March 2012
33	CCPR	1858/2009	Y.M. v. Russian Fed’n	Inadmissible	March 2012
34	CCPR	1606/2007	E.I. v. Belarus	Inadmissible	March 2012
35	CCPR	1750/2008	Sudalenko v. Belarus	Violations	March 2012
36	CCPR	1880/2009	Nenova et al. v. Libya	Violations	March 2012
37	CCPR	1859/2008	Kamoyo v. Zambia	Violations	March 2012
38	CCPR	1641/2007	Calderon Bruges v. Colombia	Violations	March 2012
39	CCPR	1752/2008	J.S. v. New Zealand	Inadmissible	March 2012
40	CCPR	1755/2008	El Hagog v. Libya	Violations	March 2012
41	CCPR	1866/2009	Chebotareva v. Russian Fed’n	Violations	March 2012
42	CCPR	1782/2008	Aboufaied v. Libya	Violations	March 2012
43	CCPR	1883/2009	Orazova v. Turkmenistan	Violations	March 2012
44	CCPR	1226/2003	*Korneenko v. Belarus	Violations	July 2012
45	CCPR	1628/2007	Pavlyuchenkov v. Russian Fed’n	Violations	July 2012
46	CCPR	1303/2004	Chiti v. Zambia	Violations	July 2012
47	CCPR	1827/2008	S.V. v. Canada	Inadmissible	July 2012
48	CCPR	1840/2008	X.J. v. Netherlands	Inadmissible	July 2012
49	CCPR	1790/2008	Govsha et.al v. Belarus	Violations	July 2012
50	CCPR	1753/2008	Guezout et.al v. Algeria	Violations	July 2012
51	CCPR	1784/2008	Schumilin v. Belarus	Violations	July 2012
52	CCPR	1526/2006	V.A. v. Russian Fed’n	Inadmissible	July 2012
53	CCPR	1558/2007	Katsaris v. Greece	Violations	July 2012
54	CCPR	1863/2009	Dev Bahadur Mharjan v. Nepal	Violations	July 2012

*note that there are 2 separate decisions brought by Viktor Korneenko against Belarus. In 1226/2003 violations were found (CCPR July session). In 1634/2007 the Committee ruled the claim to be inadmissible (CCPR March session).