States need to do better -- implementation is important

Implementation needs to be the focus of the human rights treaty system. How well are states complying with human rights standards and implementing recommendations made by the treaty bodies?

The data

Measuring these types of results has only been possible relatively recently as more data, including historical data, has been posted publicly by the UN human rights office.  Eight of ten treaty bodies now have some form of follow up to concluding recommendations. Six of those now post that information publicly on their websites. Four of those six now have enough of a data sampling to provide some useful conclusions.

Here is my analysis of the available information:

	Response is on time	Response is late	Response is overdue	NGO reports	Compliance rate	Aggregate number of report reviews/time span
CCPR	(33) 32%	(45) 43%	(24) 25%	(58) 43%	12%	102 due/126 total/8 years
CEDAW	(26) 23%	(52) 46%	(35) 31%	(19) 17%	20%	113 due/160 total/5 years
CAT	(58) 36%	(58) 36%	(45) 28%	(31) 19%	Not available	161 due/180 total/12 years
CERD	(48) 28%	(40) 24%	(82) 48%	(2)** 1.2%	Not available	170 due/191 total/10 years
CED	(3) 50%	(2) 33%	(1) 17%	(2) 33%	33%	6 due/13 total/2 years*
CRPD	(2) 50%	0%	(2) 50%	(1) 25%	Not available	4 due/24 total/3 years*
Total	170/556 = 31%	197/556 = 35%	189/556 = 34%	110/556 = 20%	37/221  = 17%	556 total responses due

Footnotes:

1. *Both CED and CRPD have sample sizes that are too small for this data to be meaningful so far

2. *CRPD has also adopted the practice of identifying recommendations for follow up in this procedure only about 50% of the time.

3. CMW has adopted the procedure this year; no data is yet posted (no responses are yet due)

4. CESC has also adopted a pilot program this year, but it is too early to have any data

5. Three of the Committees provide an evaluation or grading system of the state party's response. I have used the "largely satisfactory" or "[A]" grade in these evaluations to calculate the compliance rates in the table. 

6. This table only addresses follow up to Concluding Observations. When a treaty body issues Concluding Observations on a state report it identifies 2 to 4 recommendations for followup within 1-2 years (the particular deadline is specified in the report).  This table does not cover recommendations (Views) in individual cases -- that data is being reported less systematically so far, and I have not determined how best to measure the response rates. 

7. **the 2 NGO reports listed for CERD actually appeared to be from NHRIs. Apparently no NGO reports were received by CERD under its follow up procedure.

8. I have considered a state response late for these purposes if it was submitted 2 months or more after the recommended deadline.  Most late responses are much more late than just 2 months, so the 2 month filter was my approach to clustering the "barely late" responses from the "really late" responses.

Viewed as a bar chart, here is a comparison of state performance by treaty body:

As you can see from this data on the two tables, CAT has the best on-time response (35%) and CCPR has the best overall response rate (32% + 43% = 75%). CERD has the worst overall response rate -- 48% of states fail to respond at all to the Committee's requests for implementation information.  

As noted earlier, the figures from CED and CRPD are too small so far to make any generalisations from.

Also, it's important to note that there are very few NGOs apparently active in this follow up process so far -- only 20% of the total cases have an NGO report submitted, but most of these are in the CCPR process (and most of those NGO reports are from one of two NGOs, either the CCPR Centre or TRIAL -- kudos to both!). So NGO involvement generally is very low in this follow up procedure so far. 

Is the glass half full or half empty?

On the bright side, 66% of states are responding at some point to the Committees' requests to submit information on implementation -- 31% are on time, 35% are 2 months or more late. 

On the more disappointing side, these figures indicate that states fail to respond at all to the Committee requests in 34% of the cases and, where their response is actually evaluated, only 17% submit a satisfactory response. 

Conclusion 

So it seems we have a long way to go before we have acceptable rates of implementation in the human rights treaty system. States need to submit responses on a more timely basis and they need to implement treaty body recommendations more consistently.  It is acknowledged that sometimes the states don't agree with the treaty body's recommendations and are not willing to implement them for this reason -- this is a natural aspect of a constructive dialogue process, but states who believe the treaty body recommendation is wrong are free to submit written comments to that effect -- something states rarely do at the present time. 

My key takeaway points: 

• states need to submit their responses in a more timely fashion; dealing with late responses is a time and resource waster in a system that can not afford these types of inefficiencies
• states need to implement treaty body recommendations more frequently
• data that makes it possible to measure these matters must remain open, timely, and transparent to those of us following the performance of the system
• NGOs should get more involved in submitting their own reports on state party compliance to treaty body recommendations; in reviewing treaty body comments during this research, it was clear to me that when a well-reasoned, relevant NGO report is submitted, it is given significant weight by the treaty body in the evaluation process

Treaty body chairs meeting, item 4(g)

Here are my comments to item 4(g) of the agenda of the treaty body chairs meeting:

 Item 4(g) Update on the post-2015 development agenda

      The one subject I would like to raise in connection with the post-2015 development agenda is rebuilding after natural disasters and civil conflicts.  This topic includes economic, social and cultural rights of course, but also making sure that a human rights approach is used in rescuing and rebuilding people’s lives.

Infographic courtesy of www.abc.net.au

The Nepal earthquakes. For example, within two weeks of the first of two major earthquakes in Nepal, over fifty countries were reported to have contributed rescue teams, supplies and/or aid to the country.  All of these countries of course have human rights treaty commitments; 43 of the 50 are a party to the CRPD; and 35 of the 50 had appearances coming up in the treaty body system during 2015.  It is suggested that a few questions be reserved in the constructive dialogue with state parties to ask about human rights issues in such disasters. Was a human rights approach used in the way that emergency/rebuilding assistance was delivered and implemented? Were vulnerable groups consulted in how local communities were rebuilt or priorities established? 

Every human rights treaty has some provisions relevant to a disaster situation. Some, like CRPD, directly address ensuring the protection and safety “of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters” (article 11).  All treaties have obligations relating to international cooperation. Most treaties have no limit regarding the protection of human rights only to its own territory but speak in terms of the human rights of “all persons” who are affected by its actions.  It is recommended that the treaty body system establish a task force composed of representatives from each of the treaty bodies to identify both common and unique issues in their respective treaty instruments regarding human rights obligations of states in times of natural disaster, and that this topic be made a regular part of each Committee’s constructive dialogue and report reviews with state parties when that government has been involved either directly or through aid efforts in a natural disaster or civil conflict situation.

Treaty body chairs meeting, item 6

Here are my comments to item 6 on the agenda. 

Item 6 Consultations in Costa Rica (6(a) NHRIs and 6(d) civil society)

·      Include summary of comments in final report. I hope the Committee’s final report includes a summary of the comments offered in the consultations with local civil society representatives

·      Option to submit comments privately? Were local civil society organisations given an opportunity to provide their comments in a private meeting on request? I note that this item 6 of the agenda and the accompanying program of work schedule indicates that consultations with local human rights institutions, the Inter American bodies, diplomats and NHRIs were all to be conducted in closed meetings. Only the consultation with civil society was in an open, public session. If any civil society organisations preferred a private briefing I hope they were given that opportunity in the session.

·      Priorities for NGOs. What issues do NGOs in the region feel the treaty body system should be prioritizing? [the following items come from an informal NGO survey that I conducted in 2014; a similar survey will be done in 2015]

• Better scheduling announcements so it is more clear when events concerning your country are coming up
• More focus on implementation
• More time, space and consideration given to NGO input
• More practical information on "know your rights" and "how to implement treaty body recommendations"
• More information on the current status of follow up of particular concluding observations and Views (case decisions) with your country
• Improved webcasting
• Improve individual complaint mechanisms and the information on how to use them
• more effectively drafted concluding observations
• Improve the questioning practice and the time allocation between states and committee members during the review of reports
• more focus on late and missing reports, and more criticism of reports which fail to respond to the issues raised but are over the page limits
• better UN press release coverage
• Other (please specify)

·        Treaty body best practices – NGO perspective. See NGO wish list that I posted under item 4(d)

·        Implementation. I note that the subject of implementation does not appear anywhere in this year’s meeting agenda (other than in the context of implementing Resolution 68/268). However, implementation of treaty body recommendations by states parties should be of primary importance. I hope the Committee devotes some space in its final report to the topic of implementation and makes it a more prominent part of its agenda next year.

Implementation guidance. For lack of any better part of the agenda to place this discussion under, I offer here an idea for providing a better reference for states parties, NGOs and other stakeholders, to better follow the topic of implementation.  The proposal is to create a space on each Committee’s website that would list all relevant “implementation guidance” documents that the Committee refers to in its various concluding observations, general comments and other statements and reports. I note for example that CESCR often refers to a number of specialized documents with reference to particular recommendations. 

For example [Implementation guidance documents, CESCR]:

·       General comment 3 on the nature of States parties’ obligations under the Covenant, especially with respect to the periodic evaluation of budget allocations for human rights based programmes (“maximum available resources’)

·       General comment 4 on the right to adequate housing

·       General comment 5 on persons with disabilities

·       General comment 7 on the right to adequate housing: forced evictions

·       General comment 9 on domestic application of the Covenant

·       General comment 10 on the role of national human rights institutions

·       The Paris Principles on establishment of an independent, adequately resources national human rights institution

·       General comment 12 on the right to adequate food

·       Voluntary Guidelines to support the progressive realization of the right to adequate food in the context of national food security, adopted by the Food and Agriculture Organization of the United Nations in 2004

·       General comment 13 on the right to education

·       General comment 14 on the right to the highest attainable standard of health

·       General comment 15 on the right to water

·       The Committee’s statement on the right to sanitation (2010 or 2011)

·       General comment 16 on the equal right of men and women to the enjoyment of all economic, social and cultural rights

·       General comment 18 on the right to work

·       ILO conventions 87 and 98 on labour unions and trade associations

·       General comment 19 on the right to social security

·       The ILO Social Protection Floors Recommendation, 2012 (No. 202) – relating to evaluating the adequacy of social security programs

·       The Committee’s Statement on Social Protection Floors, entitled “An essential element of the right to social security and of the sustainable development goals.” Adopted at the 54^th session, March 6, 2015.  Issued as doc no. E/C.12/2015/1, dated 15 April 2015

·       General comment 20 on non-discrimination

·       Technical guidance on the application of a human rights-based approach to the implementation of policies and programmes to reduce preventable maternal morbidity and mortality (A/HRC/21/22).

·       The Committee’s statement on poverty and the International Covenant on Economic, Social & Cultural Rights (2001)

·       Conceptual and methodological framework for human rights indicators developed by the Office of the UN High Commissioner for Human Rights (see HRI/MC/2008/3).

·       Statement on Ebola at the 53^rd session (November 2014) (

·       Letter of 16 May 2012 to states parties on the protection of economic, social & cultural rights when austerity measures are taken in a financial crisis (available at the Committee website, under the heading “Statements and open letters”).

A similar list could be compiled for each of the other treaty bodies.  It would be very useful to list each of these documents, with a link to each, organized alphabetically by topic, in an easy-to-find location on the Committee website (perhaps you could poll the NGOs present at your consultation on whether this would be of assistance to them in their advocacy work).

Treaty body chairs meeting, item 4(e)

Here are my comments to item 4(e) on the agenda of the treaty body chairs. 

Item 4(e) Briefing on the OHCHR treaty body capacity-building programme

•       Measureable statistics – does reporting compliance improve after these programmes are implemented?
•       Should include implementation topics in the capacity-building training, including a listing of implementation guidance documents that should be consulted by the state party for each treaty, indexed by topic
•       Encourage continuity of personnel on the state party’s treaty body team, new members should join after last review, go through the OHCHR training, and serve through next report’s review
•       Capacity building should include how often and how to update common core report
•       Encourage establishment of a standing, national reporting and implementation mechanism – identify common success factors
•       Encourage official government websites be established by each state party, posting information on the state party’s treaty body compliance
•       Encourage consultation with civil society in creating and operating the capacity-building programme; polling the local civil society on its concerns should be part of best practices identified in the capacity building program