Review of 2005-2006 treaty body reform process

[my handout from 2 day workshop/Geneva]

Summary of treaty body reform process in 2005-06

By Penny Parker

Geneva for Human Rights/The Advocates for Human Rights

Date prepared: May 20, 2017

The unified standing treaty body concept – a brief summary.

Context:

• The system comprised 7 treaty bodies at the time; 3 more were pending (Disappearances, Disabilities, and Subcommittee on Prevention of Torture). We now have 10 treaty bodies.
•  Three treaty bodies had individual complaint mechanisms then; now all but CMW and SPT have such mechanisms (8)
•  115 experts in the treaty body system (from about 60 countries); now there are 172 experts in the system (from about 80 countries)
•  57 weeks of sessions; now there are 96 weeks in 2017, but this may go down in the next biennium budget
•  the general sense was that the growth in the system was at or near its breaking point
•  backlogs/reporting compliance – only 8 countries at the time were current on all of their reporting; today this number is much higher – 34 countries have no overdue reports today
•  Secretary General Kofi Annan had called for greater emphasis on human rights in the UN activities, and proposed a doubling of the UN human rights budget in the next 5 years (2006-2010). The doubling pledge was also adopted by the World Summit in 2005.
•  Human Rights Council & UPR mechanism were just established in 2006
•  The Secretary General had asked the new High Commissioner, Louise Arbour, for proposals, to implement major treaty body reform. She responded with the unified standing treaty body.  First proposed in a Plan of Action in late 2005. A concept paper was produced by March 2006 with more details. The original plan had been to call an “all hands” state parties meeting during 2006 to “vote” on a new system.  This was tentatively postponed to 2007, but by the end of the Malbun II workshop in July 2006, it appeared all but dead. No states party meeting was ever called to consider the proposal.

From the Secretary General’s report, In Larger Freedom, 2005:

“147. But the human rights treaty bodies, too, need to be much more effective and more responsive to violations of the rights that they are mandated to uphold. The treaty body system remains little known; is compromised by the failure of many States to report on time if at all, as well as the duplication of reporting requirements; and is weakened further by poor implementation of recommendations. Harmonized guidelines on reporting to all treaty bodies should be finalized and implemented so that these bodies can function as a unified system.”

Concerns about the treaty body system at the time:

• ·Backlogs (but only 2 treaty bodies had serious backlogs at the time; the average time from report submission to report review was 17 months, which is about the right length of time if NGOs are going to get an opportunity to comment on the state’s report and the state’s response to the list of issues). Backlogs of individual complaints was another matter – seriously delayed results by both the Human Rights Committee and the Committee Against Torture.
• Overdue reports/lack of compliance with reporting obligations
• Lack of visibility of the treaty body system to the world at large
• Overlaps, duplicate questions and duplicate requests on reporting
• Concerns about possible conflicting jurisprudence
• If trends continued treaty bodies would become victims of their success – if all states began reporting as required, the system would sink; it couldn’t possibly absorb the increase in workload
• Poor quality of experts
• Lack of uniformity in procedures, no coordination or harmonizing of working methods

The unified standing treaty body proposal

• A single treaty body, handling all state reports and all individual complaints
• Meeting year round, permanently in Geneva
• 25 professional experts, high job grade, truly expert
• Consolidated reports would be submitted by states every 3-5 years, addressing all of their treaty obligations in a single report
• Typical review would be 5 days, perhaps some of the review would be in plenary and some in parallel chambers (assumes 7 treaty bodies, but now we have 10 such bodies, so perhaps more than 5 days would be required?)
• If we assume 190 countries reporting timely, this would mean at least 190 weeks of state reports reviewed – if over 3 years = 62 weeks per year; if 4 years = 48 weeks per year; if 5 years = 36 weeks per year. So the pressure would probably be to stretch out the time between reports.
• Cost estimates of the new system were preliminary, sketchy and seemingly misleading. No real apples to apples comparison was provided. The general impression was that a unified standing body would cost considerably more than the current system
• How could such a structure get adopted legally in the UN system? These are treaties, so the treaties themselves in some cases specify how they are to be amended. If not specified, then the Vienna Convention on the Law of Treaties would apply. A non-paper on legal options was prepared by the OHCHR just before the Malbun II workshop in July 2006; it was presented at the workshop, and discussed in one of the breakout groups. The answers were very preliminary and needed much more work.  Possible approaches included:

o   Amendments to all 7 treaties; wait to implement the single treaty body structure until all 7 amendments were adopted and ratified by all state parties. Unanimity.

o   An amending protocol that would purport to amend all 7 treaties in one instrument; call a state parties meeting, adopt it “by consensus” without taking a vote.  It was not clear to me whether it was being proposed that this would be all that was required, or whether this consensus vote would only shorten the adoption process, but that the amending protocol would still have to be ratified by all state parties to take effect

o   Some sort of transition step between the old system and the new system, being careful not to create a “protection gap”. It was not clear to me how this would work.

o   Parallel systems in place at the same time was viewed as a “no go” – could lead to conflicting jurisprudence and horrendous complexity in scheduling, processing, and cost

The main criticisms of the unified standing treaty body proposal:

• Loss of the specificities of each treaty that are enjoyed in the current system
• It does not address many of the problems in the current system, and it creates new problems
• It starts to look like a world human rights court, something to which many governments are extremely averse
• If amendments to treaties can really take place without unanimity, it seems like a self-amending mechanism, that starts to encroach on sovereignty of states
• Seems poorly thought out from a practical standpoint, including cost, transition from old to new system, and the treaty amendment process that would be required to put it in place

Malbun II, Liechtenstein, July 14-16, 2006. 

·       About 70 people attended

·       7 staff from OHCHR

·       5 from the host government, Liechtenstein

·       11 TB experts

·       35 governments

·       4 NGOs (Amnesty, APT, NGO for the CRC, & Advocates for Human Rights)

·       4 UN agencies

·       3 NHRIs

·       See outcome document at OHCHR website. A/61/351. http://www.ohchr.org/EN/HRBodies/HRTD/Pages/TBStrengthening.aspx