Treaty Body Chairs meeting -- day 3 (June 2)

This post continues my daily commentary on the agenda items of the Treaty Body Chairs meeting taking place this week. Today I will comment on Thursday’s agenda (June 2).

Thursday Agenda (June 2)

The Committee is scheduled to discuss the following topics:

• Consultations with NGOs and UN agencies (item 8)
• Remedies for individual case decisions (item 10)
• Follow up to proposals from the Inter-American Commission on Human Rights (item 11(a))
• Inquiries – balancing confidentiality versus publicity (item 11(b))

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 2^nd 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.