Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.
By Natalie Wong
Section Editor for Human Rights
The United Nations (UN) is one of the main international organisations for setting human rights standards by drawing up treaties. Though the ratification of treaties and the “legal formalisation of rights” are often seen as a solution to human rights violations,[1] the implementation of rights protected in the treaties is equally, if not more, important. Core mechanisms for ensuring implementation in the UN system includes the state reporting mechanism and the individual petition system. This article first introduces the treaty bodies and gives an overview of the state reporting mechanism. It then examines three problems that impede the operation of the treaty bodies, namely the unsustainability of the state reporting mechanism, the ineffectiveness of the individual petition system, and the fragmentation of international human rights law. The last bit of the article argues that the suggested reform of creating a unified body cannot solve the problems identified above. It concludes that reform targeting the three areas should be made in the future.
Overview
i. UN Treaty Bodies
Treaty bodies, as the name suggests, derive their authority from UN human rights treaties.[2] The table below provides a list of prominent treaties and their respective treaty bodies.
These treaty bodies are usually composed of independent experts, ranging from 10 to 23 in number.[3] They are responsible for examining state parties’ progress in implementing guarantees in the treaties. Crucially, these experts, though nominated by state parties on the basis of their expertise, are not subject to any government’s instructions. Two to three regular sessions are held per year in Geneva, lasting between two to four weeks each.
ii. State Reporting Mechanism
To facilitate implementation, state parties are required to report regularly on the implementation of treaties. Following the initial report submitted within one year of the treaty’s entry into force, periodic reports have to be submitted to the relevant treaty bodies between two to five years, depending on the provisions of the treaties.[4] These reports will be discussed and considered in a public session, involving a constructive dialogue between the state’s delegation and members of the treaty body. “Concluding observations” will then be adopted by the treaty bodies, which “identify progress in implementation since the last report and remaining concerns”.[5]
Problem 1: Unsustainability of the State Reporting Mechanism
The first problem of the treaty body system concerns the state reporting mechanism, in particular, its lack of resources and personnel. As mentioned above, treaty bodies with a small team of staff meet for a rather short period of time each year. A design that has experts who work voluntarily, only for a few weeks per year, assisted by a small staff has proven unsustainable with the expansion of treaty bodies.[6] In fact, a thorough and meaningful examination of one state report requires at least two full days.[7] Without the necessary time and manpower to properly review the reports of states, state reports simply cannot be reviewed in a timely manner, resulting in a huge backlog. Unfortunately, many reports, when they are finally reviewed, are already outdated.[8] Ironically, though, it has been argued that the system continues to operate only because many states do not comply with their reporting obligations or submit reports with much delay. The system will collapse if all states actually fulfil their reporting obligations. It follows that the state reporting mechanism, as it currently stands, is unsustainable owing to a lack of resources available for the proper examination of state reports.
Problem 2: Inefficiency and Ineffectiveness of Treaty Bodies
The second issue relates to the effectiveness of treaty bodies in promoting and monitoring human rights. The core treaty bodies, as listed above, allow individual petition and communications. The problem here is three-fold. First, these complaint procedures are optional. It is not surprising that many serious violators of human rights simply refuse to accede to the optional protocols that establish the individual communication system. Second, in relation to the binding force of the resulting recommendations from the Committees, these findings are legally non-binding in both international law and national law. The Committees express their views as to whether they think there is a violation of treaty provisions, but state parties have no obligations to respond or grant remedy to individuals.[9] Third, the system does not work quickly enough to address the grievances of victims.[10] Many other people are not even aware of the existence of the system. Therefore, though individual petition is an option for individuals to access international human rights law, it does not provide an effective and efficient remedy for victims of human rights violations.
Problem 3: Fragmentation of International Human Rights
The last issue does not relate to particular mechanisms of the treaty bodies but concerns the very idea of having separate treaty bodies in the first place. Treaties do govern overlapping areas of rights. Different bodies established under different texts can interpret similar provisions in a different way, leading to inconsistencies in the jurisprudence of treaty bodies.[11] This is worsened by the fact that treaty bodies themselves rarely have the opportunity to interact with one another. Greater coordination between different bodies is clearly desirable. The disintegration of treaty bodies jurisprudence can undermine legal certainty, making it more difficult for individuals to seek redress from these bodies.
Reform: A Unified Treaty Body?
In response to the obstacles facing the treaty body system, suggestions for reform have been made over the years. In 2005, the then High Commissioner for Human Rights proposed the establishment of a single, unified treaty body,[12] which would be responsible for periodically reviewing a consolidated report covering all core treaties ratified by the respective state party. As Salama notes, the legal nature of the treaty body system means that reforming would require amending all existing treaties, which involves varied compositions of state parties.[13] Not only is this an exceptionally arduous task, the “multidisciplinary expertise of the existing treaty bodies” would also be damaged.[14] Unlike distinct treaty bodies that focus on more niche areas of human rights, a unified body, without the expertise and focus, may not be able to provide groups of people who need specific protection. Against this background, reactions of states, NGOs, experts were not very positive. Significantly, even a unified body cannot rectify the problem of inadequate resources. Either way, the treaty body system cannot handle the workload without an increase in resources dedicated to monitoring state compliance with their treaty obligations.
Conclusion
This article has illustrated the problems of the UN treaty body system from the perspectives of an unsustainable state reporting mechanism, the ineffectiveness of the individual petition system, and the fragmentation of international human rights. It also briefly considered the proposed reform of creating a unified treaty body, which not only fails to tackle the problem of insufficient resources, but also raises questions about the required expertise to cater to the needs of vulnerable groups. Smaller-scale, incremental changes, such as simplifying the reporting procedure by imposing a strict page limit for states’ report,[15] have been made. Yet, as the system currently stands, issues of resources, access and a lack of coordination between treaty bodies are left unresolved. Reform of the system should target these areas.
Photo by Mat Reding in ‘Joint civil society letter to the UN treaty bodies and the Office of the High Commissioner for Human Rights’ (Association for Progressive Communication, 12 October 2020) <https://www.apc.org/en/pubs/joint-civil-society-letter-un-treaty-bodies-and-office-high-commissioner-human-rights> accessed 13 June 2021
[1] David Kennedy, ‘International Human Rights Movement: Part of the Problem?’ (2002) 15 Harv Hum Rts J 101, 110 [2] Marissa Goldfaden, ‘Education for GenPrev’ (The Auschwitz Institute, 24 September 2012) <http://www.auschwitzinstitute.org/blog/education-for-genprev-24-september-2012/> accessed 14 June 2021 [3] Jane Connors, ‘United Nations’ in Daniel Moeckli and others (eds), International Human Rights (3rd edn, OUP 2017) 387 [4] ibid 389 [5] ibid 390 [6] Manfred Nowak, ‘Comments on the UN High Commissioner’s Proposals Aimed at Strengthening the UN Human Rights Treaty Body System’ (2013) 31(1) Netherlands Quarterly of Human Rights 3, 4 [7] ibid 5 [8] ibid [9] Jack Donnelly and Daniel Whelan, International Human Rights (Taylor and Francis 2017) [10] Nowak (n 6) 8 [11] Ibrahim Salama, ‘Strengthening the UN human rights Treaty Body System: Prospects of a work in progress’ (Geneva Academy, 2016) 4 [12] OHCHR, ‘Working with the United Nations Human Rights Programme: A Handbook for Civil Society’ (2015) HR/PUB/15/2 <https://www.ohchr.org/EN/AboutUs/CivilSociety/Pages/Handbook.aspx> accessed 14 June 2021 [13] Salama (n 11) 5 [14] Nowak (n 6) 5 [15] UN General Assembly, ‘Strengthening and enhancing the effective functioning of the human rights treaty body system’ (2014) A/RES/68/268 <https://www.ohchr.org/Documents/HRBodies/TB/HRTD/A-RES-68-268_E.pdf> accessed 14 June 2021
Comments