Wednesday, November 28, 2012

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. 

Monday, October 29, 2012

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.


Sunday, October 28, 2012

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.


Monday, October 22, 2012

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

Saturday, October 6, 2012

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).