Intergovernmental Consultative Process on Reform of the Treaty Bodies

Intergovernmental consultative process on reform of the treaty bodies

pursuant to General Assembly resolution 66/254 (2012)

Consultations with Civil Society Organizations

Contributions by Disability Council International

Master Calendar

Views on a proposal on a Master Calendar

In principle any efforts towards uniformisation of working procedures of the different treaty bodies are positive if the goal is to facilitate the submission of reports by States parties. The lack of a Master Calendar may have contributed to the present situation in which States are often required to submit several reports in one single year, just to remain idle in the subsequent two or three years. A more balanced distribution of reporting obligations among the various treaty bodies may enormously facilitate the optimization of the workload of States parties.

One contributing factor to this situation is the existing backlog of reports to review, a problem faced by virtually all the treaty bodies. As a result reports are not reviewed according to the periodicity established in the treaties. Rather the backlog of reports becomes the defining criterion for setting up the periodicity of review of States parties’ reports.

In these circumstances, often time one treaty body is ready to review a report within one year after submission, whereas others may take up to three and four years before they are able to review a report. A State party, with a normal scheduled review for one treaty body, might also end up having reports ripe for consideration in the same year from old backlogs of reports accumulated in other treaty bodies. This situation forces the State party to come 3 to 5 times in one year, just to be completely idle in the subsequent 2 to 3 years.
To avoid overburdening the States in some years but not in the others a degree of coordination might be needed. But it is more important to ensure a swift review of the backlog of reports by the different Committees, as a first step towards eliminating the underlying cause of the present day crisis- backlog of reports to consider.

A Master Calendar that helps to coordinate reviewing practices of the various Committees may also certainly contribute to a higher rate of submission of reports by all States parties to the relevant treaties.

However, a Master Calendar for treaty bodies should be tailored to the particular circumstances of treaty bodies, which are different from those of the Universal Periodic Review (UPR) of the Human Rights Council for the following reasons among others:

a) The UPR is a political institution and as such is subject to the political environment in which it is supposed to work.

b) The UPR process is relatively simple in terms of procedures in many aspects. For example, reports submitted by all relevant stakeholders are brief (no more than fifteen pages), and stakeholders need to report on all aspects of human rights issues. This means that for example the report prepared by the OHCHR gives roughly one page per issues discussed by each of the 9 treaty bodies, and the special procedures. The same applies for the 15 page- compilation of NGO submissions). In addition, the recommendations made to a member State may or may not be accepted by the State party concerned. The Member State concerned itself is required to prepare no more than 30 pages in which it is again supposed to cover all the relevant issues including those covered by the core nine treaties.

By contrast, the treaty body review process is supposed to be more encompassing. Firstly, reports are submitted by States parties not on all human rights issues, but on one of the core human rights issues covered by a specific treaty (for example the Convention on the Rights of the Child). Secondly, the review is done in relation to this specific area by a specialized independent body, which is not affiliated to any political entity such as States or international organizations. States are allowed in general some 40 to 60 pages (apart from any number of annexes) for these treaty specific reports; hence it is in the interest of States to conduct a more careful review of all pertinent issues at national level.

Conclusion:

A Master Calendar is certainly a positive step in the right direction, but in the context of treaty bodies needs to allow perhaps a certain degree of flexibility to take into account the particular situation of some faulty States in order to be successful.

This flexible Master Calendar allowing some sort of country specific approach to faulty States would involve finding the reasons behind the lack of reporting and providing the needed country tailored assistance including with the help of NGOs. Where the delays have no sound justification, reviews in the absence of a report should be conducted.

Methods of Work

Views on working methods

Guidelines on independence and impartiality of treaty body members

In our opinion the Guidelines appear somehow redundant as the principles of independence and impartiality of treaty body members in the exercise of their functions are already enshrined in each of the respective treaties.

On occasion the Guidelines may be seen as going beyond the intent of the treaties. For example, the position is taken in the Guidelines that independence and impartiality are irreconcilable with members holding a government post, such as being Ambassadors, which is a common practice among the membership of treaty bodies. That is not said in the treaties themselves.

The Guidelines seem to ignore that members of treaty bodies are elected by the States parties themselves, and therefore treaty bodies will not have competence to reject a member elected to the Committee who is also a diplomat. For a member to be a diplomat does not necessarily result in losing independence and impartiality, just as being a law professor or a judge does not necessarily signify that a member is impartial and independent. What is more important for a treaty body member (whether a diplomat or judge or law professor) is to understand that he should not seek to receive orientations from his Government in the discharge of his duties of a member of the Committee.

We understand that the work should be carried out with regard to the competence and integrity of the Committee members. On the other hand, the work of treaty bodies has proved often times that practicing diplomats such as Ambassadors and other government officials have and bring a wealth of practical experience that is helpful in the work of treaty bodies.

It is also important to note that treaty bodies remain institutions with a mixed and soft legal character (sometimes called quasi-judicial institutions), and hence this explains the softness of approach of States parties to the issue of election of Committee members. The treaty bodies, exactly because they are not judicial bodies, may combine a multitude of expertise and experiences to the best interest of assisting States in the implementation of their treaty obligations.

Webcasting to enhance the accessibility and visibility of treaty bodies at country level

This is a very positive development which should be supported with relevant resources to ensure that webcasting becomes a matter of UN public policy which is not left as it is now in the hands of NGOs. Dissemination of information about the work of the Committees should be within the purview of the services provided by the UN Secretariat.

Videoconferencing

Videoconferencing and the use of other supporting technologies can play an important role in the age of financial austerity of the UN, in providing new ways of ensuring the widest possible participation of national NGOs, government officials and the Committee members themselves in the constructive dialogue with relevant States.

The use of videoconferencing has the potential to contribute to the reduction of costs with transportation of government officials, but it can also play a role in reducing costs of servicing the treaty bodies. The additional use of session time by videoconferencing may contribute to increasing the time allocation needed by treaty bodies to cope with the backlog of reports to review.

Indeed with video conferencing the UN could reduce costs with transportation of Committee members who could be reached by videoconferencing. This offers a potential alternative to solve the problem of reviewing the huge backlog of reports.

Handbook on election process

In principle any additional information clarifying the election process or the duties of treaty body members is always helpful, although usually candidates know very well what being a member of a treaty body entails. There is no lack of information about that, starting from the treaties themselves and ending with information available on NGOs websites. However, a UN handbook has the advantage of putting together dispersed information with a UN imprimatur. A UN handbook could also open the door for possible harmonization efforts to supplement the text of relevant treaties at some point in time.

Proposals for national policies

In principle any information-sharing with regard to best practices in terms of candidates’ selection methods is welcome, and should be encouraged.

Open public space for states parties to present their candidates moderated by five former treaty body experts

In our view this proposal would require amending the treaties in order to be implemented. However, the idea of providing mechanisms for pre-scrutiny of candidates is positive. Given the difficulties in amending treaties, the practice followed by NGOs of interviewing candidates and providing public comments on the strengths of candidates is positive and should be supported. A further step could be for the Conferences of States parties to specific treaties to establish pre-screening committees (with representatives from all the regions) to conduct a preliminary assessment of the strength of the various candidates proposed for election to the Committees.

Other measures to enhance the visibility and accessibility of the treaty body system

Any measures that can contribute to enhancing the visibility and accessibility of treaty bodies such as webcasting should be welcome. These measures should be developed by the UN itself which is tasked with the mission of providing secretariat services to the UN treaty bodies and not left for NGOs to do.

Establishing of a treaty body jurisprudence database and on follow up

This is a step that could enhance the visibility and accessibility of the treaty body system, in addition to webcasting, so it is welcome.

Joint treaty body working group on communications

This is certainly a measure which would require amending the relevant treaties, and therefore difficult to implement. But perhaps an informal group of Committee members who compares decisions on similar issues may be a positive step towards developing a broader coherent jurisprudence contributing to the emergence of new norms of international law applicable in contexts outside the immediate work of the Committees, and this is positive.

Enhancing the capacity of the Subcommittee on prevention of torture (SPT)

Rather than enhancing the capacity of SPT, what is more important is to think of the possibility of adopting similar optional protocols adding to the competence of the existing treaty bodies the capacity to visit State parties. Such optional protocols could also clarify the competence of most of the treaty bodies with regard to follow-up procedures. As for the SPT, what it requires today perhaps is not so much capacity enhancement, but resources to enable it to conduct more regular visits to States parties in fulfillment of its mandate.

Review of good practices and adoption of common guidelines on individual communications and inquiry procedures

The idea of having common guidelines or similar guidelines adopted by all treaty bodies is less encroaching on the precepts of the existing treaties, than it is the idea of a joint working group on communications. So it should be developed to help harmonize the different working methods of the various treaty bodies, without losing the specificity of each of these treaty bodies.

Friendly settlement

The idea of providing friendly settlements in individual communications is a positive one. However its implementation might require amending the relevant treaties, as friendly settlement as a method of dispute settlement is not provided under any of the human rights treaties. What could perhaps be suggested is that the Committees should have discretion to encourage the withdrawal of cases from docket, where it appears that the State would be ready to accommodate the concerns raised by the petitioner, provided that the Committees do not adopt naming and shaming Views against a State (even if non-binding). This does not need to be set in rigorous terms, but informally as a matter of ongoing practice of the treaty bodies.

Reporting process

Views on the reporting process

A. Simplified reporting procedure

This reporting procedure consists in the advance submission of questions by the relevant Committee. To meet their reporting obligations States only need to respond to these questions. This innovative procedure is being presently tested in the work of at least three Committees: Committee against Torture, Human Rights Committee and Committee on Migrant Workers. The proposal is positive and we can only hope that more States would adhere to it to help to streamline the reporting process.

B. Reduction of translation of summary records and their replacement by webcasting

Summary records of meetings are essential for the historic records of the sessions, and they cannot be replaced by webcasting. Webcasting should complement the summary records of the sessions. It is also difficult to see how translations could be reduced, as it’s important to ensure the needed impact on the rights holders in all corners of the globe. Therefore these records should continue to be translated into all six official languages of the UN Committees.

We share the opinion that in this area there is little space for reducing costs.

C. Submission of Common Core Document and regular updates

This is a practice that has been followed by States since 2007, and should be continued. There is some tension between States and the UN Secretariat, in terms of who should update the Common Core Document (CCD), but there is no doubt that the CCD reduces work for States who are no longer required to submit the same information to each of the Committees, but only one single Document that serves the purpose of all treaty bodies.

D. Harmonized methodology for the constructive dialogue between treaty bodies and States

There is no doubt that the treaty body system can greatly benefit from greater harmonization of working methods of the different treaty bodies, taking as a basis the experience of those treaty bodies with well developed working methods.

E. Addressing backlogs and coordinated request for additional time

It appears absolutely necessary to address the issue of the huge backlog of reports, as the starting point for any meaningful reform process. In this connection and in view of the lack of resources, the best approach would be to make better use of Videoconferencing, which can substantially reduces costs with travel for Committee members. This will obviate the need for requesting extra meeting time from the UN General Assembly.

F. The need for focused treaty body concluding observations

Focused treaty bodies’ concluding observations (COs) are essential to enhance the contributions of treaty bodies to the implementation of treaty obligations by States. Concluding observations have become too long and ineffective in prompting the needed changes in States. Too many COs create States parties’ fatigue. In order to maximize the impact of the COs it is important that they contain no more than 5, 10 most critical and serious recommendations.

G. Strict adherence to page limitations

This is a very sensitive issue, since States want to make sure that all issues relevant to their submissions are taken into consideration by the treaty bodies in the evaluation of their performance. Under these circumstances, page limitation cannot have the same importance it has within the framework of the UPR. While a maximum of pages is desirable, more important is to reduce the COs to a minimum number of recommendations (5, 10). This in turn would limit the number of pages of reports, which become longer because these States try to respond to all of the previous numerous recommendations.

H. Further institutionalization of engagement with other UN partners

While cooperation between treaty bodies and other UN partners should be strengthened, a policy seeking to institutionalize this relationship may present problems of legality that would require amending the relevant treaties. What is more important is to ensure that intra-UN support is strengthened by involving other UN entities (especially those with field presences in the relevant countries) in the process of implementation of these UN treaty bodies’ recommendations.

I. Harmonization of models of interaction with civil society organization

The harmonization of models of interaction with civil society organizations can only help the cause of implementation of human rights treaties, so it should be supported.

J. Reprisals

It is essential for the Committees to take common approaches to tackling the issue of reprisals against civil society organizations.

Capacity to implement

Views on Capacity to implement

Follow-up procedures

While some of the treaties contain specific provisions on follow-up information (for example ICERD), most do not, essentially because, from the very beginning, follow-up was viewed as part of the mechanism of periodic submission of reports. However, because COs are long, some with more than 100 items, it became necessary to select a few of these recommendations as the most urgent and important requiring an immediate response. Initially this practice was sporadic and did not raise objections on the part of States. However, in some cases the exception became the rule, raising the concern of certain States who did not see a foundation for such a mechanism in the treaties. The issue is controversial and some States do cooperate while others do not, alleging that the practice has no foundation in the relevant treaties.

In our opinion it is important first of all to reduce the number of recommendations to a few of them (5, 10) the most important, and then focus on the implementation of these recommendations in all subsequent reviews of the situation in the State party. If the situation is urgent and important, the Committee should have the flexibility to assign the following periodic report to dates earlier than 4, or 5 years. This will signal to the State concerned that the Committee attaches special importance to the issue in question.

Because the reporting periodicity departing from the usual periodicity may be freely established by the treaty bodies under all human rights treaties, such practice would not raise sensitive concerns of States.

Harmonized consultation process for the adoption of General Comments

Harmonization of methods of work in terms of adoption of General Comments may certainly help the implementation of treaty provisions.

Capacity building activities for reporting

International NGOs can play a role in enhancing the capacity of States for reporting. These available resources should be used more consistently by States parties.

Standard national reporting and coordination mechanism

While national reporting mechanisms are within the purview of States, best practices should be widely shared with a view to contribute to the enhancement of the capacity of national institutions to meet the growing demands of periodic reporting to the treaty bodies.