Consultations with
NGOs & UN agencies (item 8)
As in the past two years the Committee has scheduled a one
hour time slot to hear NGO statements. A second hour is also dedicated to
contributions from UN agencies. For purposes of this post, I will focus on the
NGO portion of these proceedings.
I would hope that the Committee would discuss ways and means
of enhancing NGO contributions to its process. Limiting NGO involvement to a
one hour segment of a meeting that will be at least 18 hours in duration seems
unfortunate. For those of us who would
need to travel to such a meeting to make a contribution, justifying the expense
of travel, room and board for a 5 or 10 minute presentation is difficult to justify.
Comments from last year’s report where more than 80 civil
society organisations were able to participate in the Committee’s meeting in
San Jose, Costa Rica, seemed to indicate that the Committee valued NGO comments
on state practices for the state reporting procedure in the treaty body system,
but did not comment on the need or value of NGO comments to other aspects of
the system. I did not see any of the
topics raised by the NGOs in San Jose added to this year’s agenda.
There may also be ways to enhance NGO involvement through
the use of new technologies. Are these being considered? For example, most
international media organisations now encourage comments and contributions to
their news stories, using the so-called web 2.0 interactive participation
tools. Could the treaty body system adopt this technique? Could surveys or
questionnaires be circulated to NGOs? Could pre-meeting consultations be hosted
where NGOs were invited to make suggestions for agenda items and topics to be
discussed? Could more use of webcasting and video conferencing be used? Perhaps
NGOs could be invited to make presentations or comments on each treaty body
mandate (children’s groups, organisations for the disabled, migrant workers,
etc). Let’s get the discussion started
on new ways to better engage civil society in the discussions about how to
improve the treaty body system.
Recommendations:
- Open more of the meeting’s agenda up to NGO
participation
- Schedule a discussion next year on the agenda to
explore ways to improve NGO participation in this annual meeting, and in the
proceedings in general of the treaty body system
- Don’t fall into the trap of thinking of NGOs
only as contributors to the state reporting function of the treaty body system.
They can be valuable contributors to all aspects of the system, including
individual complaints, follow up, general comments, identifying ways to improve
access and transparency, and improving working methods
Remedies for
individual case decisions (item 10)
As noted earlier, this is the only item on this year’s
agenda that could be characterized as specifically addressing actual
implementation of treaty body recommendations.
No background report was provided, so it is not clear exactly what is to
be discussed. The annotated agenda simply
says: “The Chairs will review
the practice related to remedies in each treaty body that examines individual
communications and strive to harmonize criteria on the subject.”
So from
that description it would seem the focus will be more on how to harmonize
procedures, rather than how to improve implementation of the remedies
prescribed in individual case decisions.
There are
several questions that could be discussed on implementation of individual case
decisions. What works? What doesn’t? How can each treaty body improve the
effectiveness of its case decisions by providing clear, easy to follow,
effective remedies?
Note that 8
of 9 treaty bodies who potentially can hear individual complaints, now have
such mechanisms (the CMW mechanism has not yet been ratified by at least 10
states). All 8 of these treaty bodies have issued at least one case decision at
this time. Twelve cases have been issued
so far in the system in 2016, but none of those cases are yet available through the two
databases maintained by the OHCHR (the treaty body database and the
jurisprudence database). These cases are only available so far by scanning for
them in the individual session pages of each treaty body – this makes it
difficult to provide real time comment and contributions from NGOs, NHRIs,
interested media and other stakeholders.
Here are
the 12 cases released so far by the treaty body system in 2016:
- Askarov v. Kyrgyzstan, Case no. 2231/2012, Human Rights
Committee. Violations found. An Uzbek
human rights defender in Kyrgyzstan. He claimed he was beaten, humiliated and
threatened with a slow death if he would not testify against leaders of the Uzbek
community in Kyrgyzstan. The Committee issued findings of torture, and denial
of fair trial, and concluded that the government had violated the Covenant. The
government must respond on its implementation of the Committee’s decision in 6
months, by Oct 21, 2016.
- F.J. et al v. Australia, Case no. 2233/2013, Human Rights
Committee. Violations found. Australia’s indefinite detention of refugees on
secret security grounds is ruled arbitrary and illegal by the Committee. The
government must implement and respond in 6 months, by October 18, 2016. Note:
this case is not yet available anywhere that I was able to find in the OHCHR
website or online databases, but I found the official decision as an attachment
to an article May 17, 2016 at the Guardian website in connection with a story
about the case.
- [an unknown case against Canada,
Case no. 2327/2014; it is listed on the Human Rights Committee website but no
decision yet is available]
- Z. v. Denmark, Case no. 2422/2014, Human Rights
Committee. The case involves deportation to country of origin, Armenia. The
Committee finds that no violation has occurred by Denmark.
- Yrusta v. Argentina, Case no 1/2013. Committee on
Enforced Disappearances. The case is the first one issued by this Committee.
The case involved an enforced disappearance in a prison environment and a
suspicious death in custody. Mr. Yrusta was soon to be released; he was scheduled
to be discharged from prison in 4 months. His body showed signs of torture but
the authorities claimed Mr. Yrusta had committed suicide. The Committee determines that violations have
occurred and orders compensation to the family and other remedies. The
government is ordered to implement the decision and respond in 6 months, by Sep
21, 2016
- Medvedeva v. Russian Federation, Case no. 60/2013. Committee on
Discrimination Against Women (CEDAW).
The case involves the denial of an employment position to a woman
because the job was deemed not suitable for a woman (a helmsperson motorist).
The Committee concludes banning women from such roles is a violation of the
Convention. Reasonable measures should have first been taken to make the
working environment suitable for women. Banning women from supposedly hazardous
jobs without making an effort to adapt the environment was overly protective
and perpetrated stereotypes that are discriminatory. The government is ordered
to implement and respond in 6 months, by September 8, 2016.
- M.W. v. Denmark, case no. 46/2012. CEDAW. A
complicated custody situation involving conflicting court orders from two
different countries, Austria and Denmark, is held to be a violation of the
treaty, according to the Committee, because Denmark did not do enough to try to
sort out the conflicting rulings. The government is ordered to implement and respond
in 6 months, by Sept 14, 2016
- N.Q. v. United Kingdom, case no. 62/2013. CEDAW. No violation is found by the Committee in a
case involving deportation of a woman to Pakistan. She claimed there was a risk
of gender based violence to her if she were deported. The Committee decided the
evidence she presented was not strong enough to support her claims
- F.G.M. et al v. Spain, case no. 11/2015. Committee on
Economic, Social and Cultural Rights (CESC). The case involves the entitlement
to social benefits that were part of a collective bargaining agreement. The
Committee decides the case must be dismissed because it involves facts that
occurred before the Optional Protocol establishing the individual complaint
mechanism had entered into force in Spain.
- Lopez Rodriguez v. Spain, case no. 01/2013. Committee on
Economic, Social and Cultural Rights (CESC).
The complaint involved the loss of social security disability benefits
while in prison. The Committee decided that there was no violation of the
Covenant
- Lockrey v. Australia, case no 13/2013. Committee on the
Rights of Persons with Disabilities (CRPD).
The case is one of two involving the right of a deaf person to
participate in jury duty. The Committee holds that reasonable accommodations
must be made to permit such persons to serve on jury duty. A government response on implementation is
due in 6 months, by October 25, 2016.
- Beasley v. Australia, case no. 11/2013. Committee on Rights of Persons with
Disabilities (CRPD). This is the 2nd of two cases holding that a
deaf person should be entitled to serve on a jury, with reasonable
accommodations made by the government to permit her to do so. Government response on implementation is due
by Oct 25, 2016.
Note that
in each case where violations were found in the above cases, the Committee
ordered both specific remedies for the victim/complainant, and general remedies
to avoid repeating the same problems in the future. Very little is said about those general
remedy provisions, but they could potentially provide a very useful way to
implement human rights improvements in countries.
My interest
in remedies of individual case decisions lies more with the topic of improving
effectiveness, instead of improving harmonization. And with harmonization, it
is obviously important to harmonize “up” to the best practice, not “down” to
the lowest common denominator. Here are my suggestions:
Recommendations:
- Please release new decisions timely
so that NGOs and other interested parties can learn about them and potentially
get involved in the follow up, implementation and dissemination of news about
them. Please note that none of the 12 decisions summarized above have yet been
added to either the treaty body database or jurisprudence database, although 3
decisions have been identified in UN press releases. There are at least 20 other decisions not yet
released from the Human Rights Committee’s March session, and maybe more. Even
looking back to 2015, approximately 25% of the cases are still not available in
any of the OHCHR databases.
- Please continue the general remedy
portion of the remedies section of these decisions. It would also be useful to
explore ways to better promote these general remedies so that more parties
become aware of them and can contribute in urging the government in question to
implement the treaty body’s recommendations.
- It would be helpful if each treaty
body explained how to measure the deadline for response from the government. Is
it 6 months from the date of decision, the issue date indicated on the
decision, or the actual date on which the decision is published? These are
usually three different dates, which are 2 months or more apart from each
other. Which one is the starting point in determining when the state party is
supposed to respond?
- More transparency in the follow up
measures taken for each decision would also be helpful to those of us on the
outside trying to understand what if any activities have been taken by the
government in responding to the treaty body’s case decision
- Some Committees offer a short
summary or précis paragraph explaining what the case is about and what legal
issues were considered. It would be very helpful to promoting publicity about
the decisions for this type of summary to be included with each decision.
- Please consider the use of amicus
briefs from interested parties. We know
at least one treaty body is considering this practice. It would be helpful if
all treaty bodies would adopt this practice.
- It would be useful in future years’
agendas to take a broader view of complaint mechanisms, including best
implementation practices – complaints for these purposes should also include
inquiries, early warnings, urgent actions, reprisals, etc. All of the different
types of complaint mechanisms should be measured, published, explained, and be part
of annual summaries. E.g., CED now has more than 250 pending urgent actions on disappearances
pending (this information can now be downloaded at the CED website, under the
link in the lower lefthand corner “List of registered urgent actions (Word)”. This fact should be made more prominent, and should be included in annual
statistics about treaty body complaint activities
- The practice now adopted by a few
Committees to post a table of pending cases is very helpful. All Committees with active complaint
mechanisms are encouraged to adopt this procedure.
- I would propose taking a broader
look at complaint mechanisms on next year’s agenda, to explore effectiveness,
backlog, staff resources, workload planning, data compilation, and other
management related issues
Follow up to proposals from the Inter American
Commission (item 11(a))
This agenda item was added as
a result of last year’s meeting which was held in San Jose, Costa Rica, and
which included a discussion with members of the Inter American Commission and
Court on how their respective institutions could improve their interactions.
The annotated agenda for this
item puts it this way:
“At their twenty-seventh
meeting, the Chairs recognized the complementarity between the international
human rights treaty body system and the inter-American human rights mechanisms
in the protection and promotion of human rights standards. In this context, the
Chairs proposed a series of recommendations to the Inter-American Commission on
Human Rights to enhance the cooperation between the two systems (see A/70/302,
annex II). The Chairs will review follow-up by the Commission to their
proposals.”
The referenced annex II
includes 16 proposals, including the establishment of bi-lateral contacts,
exploring thematic topics on which to collaborate, mutual promotion of the
ratification of each others’ instruments, more consultations on general
comments, individual complaint mechanisms, reporting procedures, country
visits, advocacy, NHRIs and civil society.
These sound like interesting topics but to my knowledge nothing has been
reported on them yet. It would be
helpful if the Committee in its report of this meeting, or in some other
information posted at its website, report on progress made so far on these
topics and on future plans, including activities that civil society might be
able to contribute to.
My focus is mostly on the jurisprudence
databases of these institutions. Here are my suggestions:
Recommendations
- Please include information on the specific proposals
made at last year’s meetings and any progress made so far on these item
- The two treaty systems should explore common practices
on jurisprudence databases so that information from both institutions is more
transparent to each other and to external advocates as a whole
Inquiries – balancing confidentiality versus publicity
(item 11(b))
Inquiries are an important,
largely untapped part of the treaty body system. Only CAT and CEDAW have used the mechanism so
far. It is obvious from their efforts that the procedure is time consuming and
presents difficulties in the confidential nature of the proceedings. More
information about pending inquiries, and more contributions from civil society
would be helpful, but is virtually impossible under the current working methods
since no one outside of the inquiry in question has access to the
deliberations.
This item is described in the
annotated agenda as follows:
“Since several inquiry
procedures have recently been established, the Chairs have decided to discuss
the various elements concerning this procedure, including the element of
confidentiality while ensuring a victim-oriented approach. Each Chair will
share information on the current practice in the respective treaty body.”
Recommendations
- Please seek reasonable ways in which civil society
could be informed about pending inquiry actions and be offered an opportunity
to contribute information
- A clear, measureable follow up procedure should also
be in place, to assess how well the state party concerned has implemented the
recommendations of the Committee
- Perhaps a more general discussion of ways and
means to enhance the inquiry procedures could be scheduled for a future session
of the treaty body chairs meeting
Conclusion
It is hoped that these
suggestions are helpful. Stay tuned for my final post on the agenda items of
the Treaty Body Chairs meeting tomorrow.
(2) Next year's agenda (item 11(c))
