Why the Current UN Treaty Body Reform Process Cannot Fully Deliver

The discussion around the reform of UN human rights mechanisms in recent years has focused overwhelmingly on the creation of the UN Human Rights Council.  In this shadow, the UN human rights treaty bodies also enhanced their efforts to review disparate working methods following a 2006 proposal by the UN High Commissioner for Human Rights for a unified single standing treaty body.  Then High Commissioner, Louise Arbour, identified many challenges, including that ‘limited coordination and collaboration among treaty bodies, and different approaches, in particular with respect to the role of NGOs, NHRIs and the wider United Nations system, increase duplication and impede interaction with stakeholders, who find the system obscure.’  While the single treaty body idea did not garner support, the critical arguments it presented necessitated that the treaty bodies consider more seriously how to coordinate and streamline their work. Progress since then has been slow.  A central cause is that the Inter Committee Meeting (‘ICM’) of treaty bodies – the primary mechanism mandated to address treaty body reform – itself requires reform, thus falling foul of a fatal caricature of UN bureaucracy.  Among its shortcomings has been its inability to adequately consider and incorporate NGO and National Human Rights Institutions (‘NHRIs’) contributions into its work, despite its appreciation for their contributions each time the ICM meets.

The maze of differing treaty body working methods are well-known to those who have engaged with more than one of these bodies, including knowing when a State party will be examined; determining the best time to submit information, whether elements may be kept confidential and who to communicate with; arranging meetings around the examination of the State; and having clear expectations regarding outcomes and follow-up.  It is even less clear for NHRIs, as a number of Committees call for their active participation, while others are silent.  Many NGOs and NHRIs know from experience which methods work best, although treaty bodies themselves are often reluctant to concede that others function better, and are thus resistant to change.

Chairpersons of treaty bodies have convened to share information since 1984, where discussion focused on external challenges faced by States, such as their failure to report.  However, with new conventions, Committees and States Parties, challenges within the treaty body system itself increasingly became the focus of meetings.

ICMs began in 2002 alongside the meetings of Chairpersons to look specifically at methods of work and ‘substantive issues that affected all treaty bodies’.  These meetings increased to twice per year in 2008 in order to ‘make recommendations for the improvement and harmonization of working methods of human rights treaty bodies’.

The ICM meets in Geneva in June/July and December each year and tends to address the same issues according to an agenda drafted by the OHCHR secretariat.  This included, at the most recent meeting in June 2009 for example, follow-up to concluding observations, the identity and role of country rapporteurs, and cross-referencing of each other’s work. However, the first critical problem with the current ICM arrangement when it comes to addressing NGO participation, and all other matters related to harmonisation, is the rotating composition of the ICM itself.  At each meeting, membership changes as treaty bodies elect new Chairpersons and send different additional representatives.  This stifles continuity in the discussions, resulting in a situation where the same discussions around the Universal Periodic Review mechanism of the Human Rights Council, for example, have taken place at the last three meetings without any clear development or outcome.

A second related problem arises from the apparent lack of authority vested in representatives to fully speak for and make decisions on behalf of their respective Committees.  Treaty bodies are not in a position to consider the agenda of upcoming ICM meetings and so do not consider collective positions in advance.  Individuals then come in with their own views, which are not necessarily consistent with the general view of their Committee or their predecessor on the ICM.  Representatives then report back to their Committees on issues addressed at the ICM, with rarely adequate levels of detail, and individual treaty bodies more often than not fail to approve these outcomes.

Working within this environment, a group of international NGOs (comprising Amnesty International, the Association for the Prevention of Torture, the International Service for Human Rights, International Women’s Rights Action Watch, the NGO Group for the CRC, Save the Children, and the World Organization against Torture) with long-standing experience working with the treaty bodies formulated a joint submission in early 2008 intended to enhance the system by outlining best practices and recommendations related to NGO participation.  The submission was well-received by the ICM, yet the summary report and recommendations of the June and December 2008 ICM meetings made no reference to the submission.  Advancements have been made in relation to certain areas contained within the submission, such as agreement on the need for more effective follow-up procedures, yet generally NGOs have had to reiterate recommendations in consecutive meetings with no institutional memory of the ICM.  The same can be said with NHRIs’ attempts to secure recommendations in 2007 and again in 2009, without any noticeable shift.  This has undermined NGOs’ and NHRIs’ confidence in investing in the process, despite an offer by the secretariat in December 2008 to provide space for interventions by NGOs and NHRIs under all agenda items.

So what is needed?  First, Committees must be provided with a draft agenda by the secretariat well in advance of ICM meetings and must allocate time to considering what its representatives should contribute to the ICM meeting.  The agenda should include elements that the ICM could reach consensus on, such as webcasting of the treaty bodies, for example.  The ICM itself then needs to be invested with decision-making powers.  This was recommended by the International Service for Human Rights in December 2008, and was also taken up by the ICM itself and the new UN High Commissioner for Human Rights, Navi Pillay, in her engagement with treaty bodies in 2009.  To date, however, only the Committee on the Rights of the Child has agreed to this proposal, in January 2009, while the Committee against Torture rejected such a development at its session in April 2009, although its reasons are not clear as this was considered in private session (an example in itself of less than ideal working methods).  This decision does not bode well for the future relevance of the ICM.

The ICM should then give official consideration to recommendations presented by NGOs, NHRIs and other stakeholders, including in its final reports.  NGOs need also to consider how to make more strategic use of the space provided.  The ICM would benefit from the input of national NGOs, who can relay first-hand experience of the challenges of engaging with the system, while NGOs based in Geneva can remind Committees of ICM recommendations during their regular meetings on working methods.  Recent suggestions from NGOs at the June 2009 meeting included that the ICM make decisions in December on issues discussed in June.  NGOs should also consider submitting their views to the ICM’s working group/task force on follow-up to concluding observations, to be established in late 2009, and to push for other interim working groups to address outstanding recommendations.  But ultimately, as described, the ICM must first illustrate a commitment to making use of what has already been provided.

In relative terms, it should be noted that the much more difficult challenge of protecting the ‘independence and expertise’ of treaty bodies exists outside and transcends the ICM process.  With a recent increase in treaty body membership of working Ambassadors and politicians (including incidentally the Chair of the ICM, who is also the Assistant Minister of Foreign Affairs of Egypt), this requires a strengthening of States Parties understanding of independence and expertise, not only when it comes to nominating candidates but also in applying these criteria when casting their vote for the election of new treaty body members.

Nonetheless, the current framework within which treaty body members can contribute should also be put to proper use.  The current ICM structure, however, tends to have the opposite effect of reinforcing the former High Commissioner’s perception that ‘the treaty body system … does not function as an integrated and indivisible framework for human rights protection’.  And so, with little credit to the UN human rights system, the mechanism for reform must itself first be reformed.

Gareth Sweeney is Deputy Manager of the International Human Rights Defenders Programme at the International Service for Human Rights in Geneva