The Reform of the United Nations’ Human Rights Treaty Bodies

On April 9, 2014, Member States of the United Nations (UN) concluded a two-year State-led process to reform its “human rights treaty bodies”: ten expert committees tasked with monitoring States’ implementation of the obligations set forth in the UN’s core human rights treaties and their protocols.[1] The process began as an attempt by States with objections to crucial aspects of the work of the treaty bodies to overtake an ongoing reform effort by the UN High Commissioner for Human Rights. Despite this inauspicious beginning, the final resolution of the reform process largely avoids negative consequences for the independence and autonomy of the treaty bodies and makes important changes that will affect their work. Yet much remains to be done to increase the treaty bodies’ contribution to the protection of human rights.

The Treaty Bodies: Achievements and Challenges

The treaty bodies are a foundational component of the international human rights system, enhancing protection through their independent assessment of States’ compliance with their human rights obligations. They interact with government representatives during the public review of States’ periodic reports on their implementation of the treaties and publish conclusions and recommendations evaluating their progress; reach decisions on individual cases of alleged violations; and issue general comments interpreting the scope of the human rights that they monitor, among other functions. Their findings are important to governments but also to human rights defenders, national human rights institutions (NHRIs), and non-governmental organizations (NGOs) that provide information to the treaty bodies and reference their findings in their work. The treaty bodies also inform the work of the UN’s Universal Periodic Review and Special Procedures; academics; intergovernmental bodies like the UN Human Rights Council; and national, regional, and international courts.

Despite their importance, the treaty bodies have long faced significant obstacles to their effectiveness. They lack mechanisms to compel compliance by States with their treaty obligations—both procedural (to submit reports) and substantive (to conform to the human rights standards in the treaties, including by implementing the treaty bodies’ recommendations). Consequently, many States parties that ratify the treaties fail to report on time; a few fail to report at all; only some engage all relevant domestic actors to create high-quality reports; and the degree of effort with which States pursue implementation of treaty body recommendations varies widely.

Other challenges include the creation of four new treaty bodies in the last ten years[2] and overall increases in ratification and reporting. The resources provided to the treaty bodies have been inadequate to prevent several of them from accumulating significant backlogs of reports and communications.[3] Increasing workloads strain the capacity of the treaty body experts, who are nominated and elected by the States parties to the treaties but are unpaid and serve in their personal capacities, and who benefit from critical but often insufficient Secretariat support from the Office of the UN High Commissioner for Human Rights (OHCHR).

The Treaty Body Reform Effort

In 2009, recognizing these challenges, UN High Commissioner for Human Rights Navi Pillay initiated a series of multi-stakeholder consultations aimed at “strengthening” the treaty bodies that became known as the Dublin Process.[4] This effort provoked substantial reflection by current and former treaty body experts, NGOs, NHRIs, the UN Secretariat, academics, and Member States.

In late 2011, as the Dublin Process neared its anticipated conclusion, a group of States objected that the process had not sufficiently privileged the views of States above those of other stakeholders.[5] Led by the Russian Federation, the group successfully pressed the UN General Assembly to initiate the intergovernmental process as a State-led successor to the High Commissioner’s efforts. In February 2012, the General Assembly adopted a contested resolution creating the process, with eighty-five States voting in favor, none against, and sixty-six abstaining (including the United States, which called for a roll-call vote).[6] Negotiations among States began in July 2012, after the High Commissioner had published her report on the Dublin Process.[7] Other stakeholders—NGOs, NHRIs, and the treaty body experts and their chairpersons—primarily provided input through “separate, informal arrangements” with the two Permanent Representatives to the UN appointed as co-facilitators of the process.[8] States reached agreement on a compromise outcome in February 2014, which the General Assembly formally adopted by consensus on April 9, 2014.[9]

The Outcome of the Intergovernmental Process

Resources

One of the High Commissioner’s primary goals in initiating the Dublin Process was to secure greater compliance by States with their reporting obligations and adequate meeting time to allow the treaty bodies to review States’ reports in a timely way.[10] The High Commissioner put forward a controversial proposal on this issue, calling on States to agree to a mandatory Master Calendar in which all States would be required to report on all of the treaties to which they are parties every five years; this would require doubling the treaty bodies’ meeting time.[11] During the intergovernmental process, States raised financial, legal, and feasibility concerns regarding the proposal, and in the end did not endorse it.

Nevertheless, the resolution concluding the intergovernmental process increases the treaty bodies’ meeting time, by more than 20% from 2012 to 2015.[12] The amount of time to be allocated is to be determined every two years according to a formula that takes into account the average workload of each of the treaty bodies. The aim is for the treaty bodies to avoid accumulating further backlogs while still performing their other important functions.

Despite the fact that the resolution increases the treaty bodies’ meeting time, it does not substantially increase the total amount of resources devoted to them ($52 million in 2012).[13]   The resolution accomplishes this by significantly reducing the treaty bodies’ projected use of the UN’s costly conference services (documentation processing, translation, and interpretation). By placing word limits on States parties’ reports and on treaty body documentation, discontinuing the translation of summary records of meetings, and requiring the treaty bodies to limit their working languages, the resolution creates $19.2 million in cost savings. The majority of these savings are re-invested into the treaty body system to provide the new meeting time.

The resolution also reallocates $4.5 million per year to create a capacity-building program in which OHCHR will provide assistance to States upon their request to aid them in preparing their reports.[14] Although this reduces the resources dedicated to direct support for the treaty bodies, it was a key priority for States that argued that low procedural compliance with their treaty bodies was more a product of their limited capacity than of insufficient political will.

Procedures and Independence

A key aspect of the High Commissioner’s report was its call for the treaty bodies to harmonize their working methods. The issue of working methods reform was of great interest to members of the group of States that initiated the intergovernmental process, led by the Russian Federation, referred to during the process as the Cross-Regional Group (CRG).[15] The CRG claimed that the treaty bodies had adopted working methods that exceeded their mandates under the treaties and which had encouraged politicized criticism of States; among them allowing experts to reference information from NGOs, articulating general comments on the scope of the rights in the treaties, and developing new procedures to follow up on States’ implementation of recommendations.[16] These States proposed for the General Assembly to impose changes to the treaty bodies’ procedures and to encourage greater deference to States’ views. In opposition, others noted that the human rights treaties provide for self-regulation by the treaty bodies precisely to ensure their operational independence from States parties.

The resolution concluding the intergovernmental process endorses many of the High Commissioner’s proposed procedural reforms.[17] Yet in recommending that the treaty bodies harmonize their procedures, it calls on them to work “within their mandates” and to “bear in mind” States’ views. To encourage greater harmonization, the resolution recommends empowering the treaty body Chairpersons to make procedural decisions on the treaty bodies’ behalf, so long as they have previously discussed the issue with their fellow experts.[18] The Chairpersons began developing proposals on aligned working methods at their most recent meeting, in late June 2014.[19]

At the same time, the resolution does not put Member States in a position of supervisory control over treaty body experts in ways that could have seriously chilled their scrutiny of States’ human rights performance. The resolution does not endorse a controversial proposal made by the CRG for a Code of Conduct for treaty body experts and an accountability mechanism to enforce it.[20] Instead, it encourages the treaty bodies to review their self-regulatory guidelines on independence, taking States’ views into account in doing so.

Enhancing Implementation and Transparency

One of the High Commissioner’s key aims was to compel high-quality reporting by States and greater implementation of the treaty body recommendations directed to them. However, the General Assembly resolution makes only a passing reference to her call to States to create “standing national reporting and coordination mechanisms” to prepare reports in consultation with all relevant national actors and civil society groups, and to work with those actors to monitor the implementation of treaty body recommendations.

The High Commissioner also proposed to enhance the treaty body system’s accessibility and transparency.  Yet the resolution provides only rhetorical support for official UN webcasting of treaty body meetings, leaving it to OHCHR to bring this about with extra-budgetary funding in the short term. It also recommends that treaty bodies apply word limits to submissions by NGOs, even though they carry no cost implications, as they are not officially processed by the UN. The resolution similarly declines to take up the High Commissioner’s recommendations to promote the selection of highly qualified treaty body experts.

Conclusion

Although the General Assembly addressed some of the system’s most pressing resource concerns, much remains to be done to strengthen the treaty bodies. The General Assembly’s solution—which seeks to make the treaty body system more sustainable without increasing its overall resource needs—will only succeed if, with OHCHR’s assistance, they are able to make effective use of the increased meeting time dedicated to them.  Moreover, at some point, the need for greater resources will again arise, as will sustainability concerns as treaty body workload requirements approach the limits of the volunteer experts’ capacity. These challenges will necessitate more ambitious reform efforts than those currently contemplated.

In the short term, all stakeholders of the treaty body system should seek to realize the more substantive objectives identified in the Dublin Process and the High Commissioner’s report. These include increasing the treaty bodies’ visibility to the wider public, increasing the quality and regular submission of State reports, increasing States’ implementation of treaty body recommendations, and increasing the quality of treaty body membership, all while preserving the treaty bodies’ independence and accessibility to all stakeholders. These sorts of changes are necessary for the treaty bodies to make an even greater contribution to the protection of human rights.

About the Author: Christen Broecker, an ASIL member, is Associate Director of the Jacob Blaustein Institute for the Advancement of Human Rights, based in New York.