Backlog? What backlog?

It is often claimed that the treaty body system is broken and needs to be fixed because it can't keep up with its backlog.  While there are indeed backlogs of individual complaints in the system that need to be addressed, it is not accurate to say that the most common treaty body activity, the review of state reports, is suffering from chronic backlogs.

In fact, as of the end of 2016 only one treaty body had a serious backlog of state reports to review, the Committee on the Rights of Persons with Disabilities (CRPD). All of the other treaty bodies were in reasonable balance between the number of reports to be reviewed and the availability of time on its meeting schedule to review them. 

Definition of backlog

First, how do we define a backlog for these purposes? To my knowledge, there is no official definition. My definition is that there should be enough state reports pending to fully schedule the Committee's meeting time at least one year but no more than 1.5 years ahead. 

This is a definition that permits full NGO participation in the treaty body process. Unless the Committee's schedule is known at least a year in advance, and preferably 18 months in advance, there is not enough time for NGO participation, which includes the following steps: 

• obtain a copy of the applicable state report and review it
• prepare an NGO shadow report and submit it to the treaty body
• provide NGO input into the list of issues compiled by the treaty body
• receive and review the state party's responses to the list of issues
• provide NGO input to the treaty body on the responses to the list of issues by the state party 

Current backlog figures

Here is a summary of the pending state reports in the human rights treaty system by the end of 2016: 

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	# of reports	normal annual pace	backlog in years
CMW	8	8	1
CESC	20	17	1.2
CERD	25	20	1.3
CCPR	27	21	1.3
CAT	25	18	1.4
CRC	46	32	1.4
CEDAW	43	27	1.6
CED	11	5	2.2
CRPD	51	14	3.6

This means that the first six treaty bodies fall below the 1.5 backlog figure. But CEDAW is very close with 1.6 and CED is a relatively new Committee experiencing an uptick in reports recently, but it should be able to easily fit the 11 pending reports into a shorter schedule. So it is only the CRPD that has some serious scheduling difficulties in reducing its backlog. 

A few other footnotes to this table:

1. I have not included the SPT in this analysis since the nature of their reporting system is different. It's not the number of state reports that defines their backlog, but a more detailed analysis of pending state visits, delays if any in producing Committee reports, and then delays if any in receiving state party replies, and Committee follow up replies.  So I haven't tried to evaluate whether the SPT is in a backlog situation currently.
2. The CMW reports pending is a bit of a misnomer. This Committee has traditionally received too few reports to keep their workload busy. As a result they have moved to a so-called "master calendar" system whereby they schedule the review of country situations whether or not a report has yet been received. Often times the report arrives at the last minute, without adequate time to review it or for NGO participation. The 8 reports shown in the above table only reflects that 8 countries have been scheduled for review during the CMW's 2017 sessions. Most of these reports have not yet been received by the Committee. So, no backlog for this Committee.
3. The numbers of reports currently pending was obtained by reviewing each treaty body's pending future schedules, and cross checking to the extent possible with the OHCHR treaty body database and statements made in the opening sessions of each treaty body (for example, recent statements made by the Secretariat of the Committee on the Rights of the Child when that Committee opened its session earlier this month). It is possible that some of these figures are not accurate, but they appear to be reasonably close to the historic patterns and other corroborating sources mentioned.

Conclusion

The CRPD needs to address its backlog of state reports. Perhaps it can use some of the tools that the other treaty bodies have used to balance their workload when a backlog builds up -- parallel chambers, schedule more reports per session, schedule more meeting time per session, more staff support, more use of simplified reporting tools, etc.  Or perhaps there are other tools, not yet used by any of the other treaty bodies that would best fit the needs of this Committee. But the point to underscore here is that this backlog problem is essentially a problem suffered by a single treaty body, not the entire system. 

The other 8 treaty bodies that review state reports are reasonably in balance between workload and average waiting time before a report is scheduled for a hearing.  If this waiting time were to be any shorter than it currently is for these 8 treaty bodies, it would begin to undercut the ability of NGOs to review and participate in the state report reviews. 

To the extent the system's backlogs are driving calls for reform or change, I would suggest that such calls are not based on supporting facts. Other aspects of the treaty system need more attention and would be more directly relevant to strengthening and improving the effectiveness of the treaty body system. 

A modest proposal for state reports & lists of issues

The UN human rights treaty bodies receive and review about 150 reports per year from governments, on their human rights compliance.  There are a few new items that could be added to those reports that would greatly aid in evaluating the system. I would encourage each treaty body to add
these items in their reporting guidelines and/or in each list of issues submitted to the state party whose report is to be reviewed:

1. An index or table of the prior recommendations

The state report or associated materials should contain a table or index showing where each of the Committee's prior recommendations has been answered.  This will assist in evaluating the state party's level of implementation of its human rights obligations.

2. Government website link

As part of its dissemination of information to its stakeholders, each state party should be asked to create and maintain a government-sponsored website where information about that state's treaty body obligations are described. The website address should be included in the report or in the response to the list of issues. I've written on this topic before. Here is my suggestion for the minimum content of such a website: 

•    the human rights treaties to which the state is a party

•    a link to each of the UN treaty body websites for which it is a party

•    the latest reports submitted to each treaty body

•    the latest common core report submitted to the treaty body system

•    the latest concluding observations of each treaty body

•    the schedule of next appearances before each treaty body

•    upcoming deadlines for submitting next reports or follow up information

•    progress toward implementation and consultation opportunities for civil society

•    information about the live and archived treaty body webcasts of appearances of the government

•    the site should also be disability accessible in its design

•    the content of the site should be regularly updated; the site should indicate when the content was last revised and the government's policy on how frequently it intends to update the site in order to keep the information current 

Once a state party creates such a website, the link should be added to the treaty body pages that describe that state's human rights activities.

 

3. Compliance with word limits

Each report should indicate in its introductory remarks the number of words contained in the report, to indicate whether the suggested word limits have been complied with.

4. National implementation mechanism

Each report or response to list of issues should indicate whether the state has established a national mechanism for treaty body reporting and follow up, as recommended in the High Commissioner for Human Rights' recent practical guide on this subject.  

If no such unit has yet been established, the state should be asked to indicate whether there are any future plans to do so and the anticipated timeline for creation of such a unit.