Treaty body chairs meeting -- final day (June 3)

This post concludes my daily commentary on the agenda items of the Treaty Body Chairs meeting taking place in New York this week. Today I will comment on the final day’s agenda (June 3).

Friday Agenda (June 3)

The Committee is scheduled to discuss the following topics:

• Any other business including next year’s agenda (item 11(c))
• Adoption of the final report of this session (item 12)

I don't have any comments on the final topic (adoption  of report), but will split my comments on the first item into two parts -- (1) any other business and (2) next year's agenda

(1) Any other business (item 11(c))

Other than next year's agenda, which I will comment on in the next section, here is the open space on the Committee's agenda to consider new ideas. What else can be done to improve the effectiveness of the treaty body system? 

Some of the topics I would like to see more focus on include the following: 

Recommendations:

• disability access -- are the meetings and information of the treaty body system as accessible as possible to persons with disabilities? This is not just a topic for the Committee on the Rights of Persons with Disabilities. All Committees should be attentive to this issue and all meetings should be adequately equipped to make reasonable accommodations for persons with disabilities to participate. Is there a fire evacuation plan in place for all public meetings of the treaty body system that includes how to evacuate a large number of disabled persons if they were in attendance?
• new technologies -- how can the treaty body system make better use of new technologies? Is the system preparing adequately for potential cyber attacks or cyber surveillance of confidential information in the system? Should the High Commissioner consider creating a post for a CTO -- chief technology officer, who could advise the High Commissioner and treaty bodies on strengthening and improving technology systems?
• size of committees -- do the current treaty bodies have the right number of members? I'm thinking in particular about the Committee Against Torture with just 10 members, yet a workload heavier than most other Committees. 
• CMW -- how can the entire system work to improve the ratification numbers for the Convention on Migrant Workers which is in danger of being left behind as the system grows
• implementation -- how can implementation be strengthened across the board?
• current events -- how can the treaty bodies be as relevant as possible to current events that involve human rights? What role should treaty bodies play when major events like the Arab Spring, earthquakes or other humanitarian disasters, or migration flows occur?
• civil society -- are there new ways to engage civil society more effectively?
• improve reporting compliance -- how to develop better state compliance to reporting and follow up obligations? 
• master calendar idea -- should a UPR style master calendar be adopted, with evaluations going forward on non-reporting states in the absence of a report

(2) Next year's agenda (item 11(c))

Here is a compilation of suggestions I have made in my other posts for agenda items next year, plus a few more:

• Implementation should be a standing item on each year’s meeting agenda
• Improve the jurisprudence database, including how to harmonize it with other such databases of other regional institutions
• How to improve NGO participation in the annual treaty body chairs meeting and in the treaty body system as a whole
• Broaden the scope of reporting compliance by adding to next year’s report information on state reports, inquiries, follow up procedures, interim measures, and OPCAT responses.  Compare the current year to past years on each of these classifications
• Ideally a system like the treaty body system should be effectively managed and good management requires good data. Some more thought should be given to what types of data would be most useful for the treaty body chairs, each individual treaty body and the OHCHR office, to better manage their parts of the system
• Perhaps take 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; 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

Conclusion

There are many valuable topics to discuss and only a limited amount of time available, but I hope the treaty body chairs are able to reflect on these suggestions and others made during the meeting, in order to continually improve the effectiveness of the treaty system.

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.

Treaty Body Chairs meeting -- day 2

I’m continuing my daily commentary on the agenda items of the Treaty Body Chairs meeting that is going on in New York this week. Today I will comment on Wednesday’s agenda. 

WEDNESDAY AGENDA (June 1)

The Committee’s annotated agenda includes:

• in the morning to prepare for the consultation with states parties later that day (item 8 of its agenda)
• to discuss agenda item 9, improving the system’s engagement with national human rights institutions 

Consultation with states (item 8 of the agenda)

The consultation with states was always an interesting segment in the agenda when NGOs were allowed to attend in prior years. Is the consultation meeting going to be public this year? Will NGOs be able to attend? If not, will the consultation with state parties be summarized in the final report of the session? This feedback can be very important to those of us on the outside who are trying to assess whether certain initiatives might be possible in the strengthening of the system, which states seem the most interested or have the most concerns, and whether states have any particular concerns or suggestions that might affect the developments in the future for the treaty body system.

It seems to me that preparing for the states parties consultation should be more than simply identifying who will speak about what topic in informing the states of recent treaty system developments.  Some attention should be focused on suggestions and concerns identified by the states in the prior annual consultation. Some key data about the current state of the system should be addressed.  Perhaps also a summary of concerns from civil society could also be mentioned in the consultation. And some thought should be given to some key messages that would be useful to communicate to the states at the consultation.

Recommendations:

• please re-open this segment of the annual meeting to NGOs so they can attend and listen if they wish to
• compile a list of suggestions and concerns raised at the prior year’s consultation with states, and include a brief report on treaty body system developments on those items
• key message 1 – the need for more resources: communicate the clear need for more resources for the treaty body system, and the impacts from the lack of those resources; preferably include both an overall statistical measure of the resource need and some particular examples of where the lack of resources is having a current negative impact on the system
• key message 2 -- late reporting behavior by states wastes resources: communicate the clear message that delays in state reporting compliance, in particular late and non-reporting behavior, submitting reports that are over the page limits, and failing to respond timely to requests, has a time and resource wasting impact on the system; it creates “noise” in a system that needs to be as efficient in the use of resources as possible; if feasible present some clear statistics describing this impact and how it wastes resources
• key message 3 -- government websites. We urge all states to think of ways to improve their public dissemination of human rights treaty information to their constituents, including through the use of the Internet and new technologies; every state party at this point should have a public website that reports its activities and its coming events in the treaty body system, includes posting copies of recent concluding observations and reports, and scheduled civil society consultations on implementing recommendations and preparing upcoming reports. The government website should inform its agencies and civil society about human rights and the treaty commitments of their state. For example, please see my suggestions on what a well-managed government website on treaty obligations should at a minimum contain. 

Improving engagement with national human rights institutions (agenda item 9)

The second item to be discussed in Wednesday's session of the Treaty Body Chairs meeting is how to improve the engagement of national human rights institutions (NHRIs) with the treaty body system.

It is true that NHRI involvement in the treaty body system is light.  This is another area that might benefit from some statistical analysis – how often do NHRIs participate in the state reporting function or other functions of the treaty bodies? Is the engagement improving or decreasing?  What type of involvement adds the most value to the treaty body system results? 

It may also be useful to investigate how the treaty body system could make it easier for NHRIs to participate.  Perhaps a more user-friendly website and procedures. Perhaps create a website page that specifically addresses the issue, titled something like “how NHRIs can effectively engage with the treaty body system.”

Better information on treaty body jurisprudence might also be helpful, including up to date information on latest individual case decisions.

Another idea might be to encourage NHRIs more toward the implementation side of the treaty body system, and less toward the shadow reporting function which tends to be extensive and time consuming.

One should always also bear in mind the Paris Principles to ensure true independence of NHRI contributions.

The link to the OHCHR background paper on this topic is not working as of today.

Recommendations:

• compile statistics on the extent of NHRI engagement in treaty body activities; is the engagement increasing or decreasing?
• Conduct a survey of NHRIs asking them how the treaty body system could improve its information and procedures in a way that would make it easier for NHRIs to participate
• Create a separate webpage on the OHCHR site directed toward NHRIs, listing relevant resources and explaining how NHRIs can get more involved
• Address in particular how NHRIs can be more involved in the implementation side of the treaty body activities. Perhaps encourage them to submit reports on the follow up recommendations from Concluding Observations and views. Even a brief type of scorecard of which recommendations have been implemented by the state and which have not, as of the reporting deadline.
• Please note that the OHCHR background paper on this topic was not available at this time. The link that identifies it does not work.  

Conclusion

Like the other topics on the agenda, both of these subjects would benefit by more statistical evaluation, and more website information that can make the treaty body system more user friendly. All of this takes money and resources of course, which are in great shortage in the current UN budget.  But the need for more resources too should be a clear message that is communicated to states parties.  

Stay tuned for tomorrow’s post, on the agenda items scheduled for the Committee’s Thursday session.