By Adam Fletcher
On 22 June, the UN High Commissioner for Human Rights, Navanethem Pillay, issued a report on the ‘treaty body’ system – that is, the system of committees whose task is to oversee implementation of the UN human rights treaties. This system is the closest thing we have to a world human rights court (for the time being), and it is where citizens can take their human rights complaints against governments. On becoming parties to the relevant treaties (such as the International Covenant on Civil and Political Rights or the Convention on the Rights of the Child), States also acquire obligations to report periodically to these committees on how they are protecting the rights guaranteed by the treaties.
In his foreword to the High Commissioner’s report, Secretary-General Ban Ki-moon calls the treaty body system “one of the greatest achievements in the history of the global struggle for human rights,” and says they “stand at the heart of the international human rights protection system.” The High Commissioner herself notes that they are the “custodians of the legal norms established by the human rights treaties.”
Although the report is (as you would expect) written in measured language and does not come out and say the treaty body system is in crisis, the accompanying media release is not so reticent. In fact, the release states that the treaty body system “cannot be sustained without the immediate action to help strengthen and improve it.” In other words, the keystone of the international human rights regime is being starved of funding and will collapse if the situation is not remedied.
In Geneva, where most of the treaty bodies (and the High Commissioner) are based, this is not news. It has been known for some time that treaty bodies do not have enough resources to do their work. According to the International Service for Human Rights (a Geneva-based NGO), the treaty bodies have heard more than 1,900 cases since they began receiving individual communications (complaints) in 1977. Hundreds more are now pending, and the average processing time for the Human Rights Committee (HRC) has blown out to 47 months (30 for the CAT). The complaints procedures of the Committee on the Elimination of Racial Discrimination (CERD) and the Committee on the Elimination of Discrimination against Women are relatively underutilised, but they still have significant backlogs of State party reports to examine and all of the treaty bodies have had to ask for more meeting time in recent years to deal with their workloads.
According to the High Commissioner’s report, the whole treaty body system has nearly doubled in size overall in the last 12 years, and the number of experts has increased from 74 to almost 200. There are more bodies and more members than ever before. Even though treaty body members are unpaid for their considerable contributions (up to 9 weeks per year not including travel and preparation time), they receive meeting and travel allowances. There are now 10 treaty bodies with between 10 and 25 members who generally meet two or three times per year. The members travel from all over the world to two very expensive cities (Geneva and New York), so these allowances are not insignificant. There is also infrastructure and administrative support (which, to be fair, runs on a relative shoestring and is funded in large part by voluntary donations) to consider.
The Subcommittee on Prevention of Torture, which is charged with overseeing implementation of the Optional Protocol to the Convention against Torture, has the most members (25) and makes several visits to States parties in addition to meeting in Geneva three times per year. This work is important but it is also costly.
Despite the doubling in size since 2000 and the continual increase in meeting times, the High Commissioner reports that the annual budget has not increased to keep pace. In fact, the only reason the treaty bodies have not become completely overwhelmed is governments’ poor reporting performance (just 16% report on time to the Committees on the implementation of their human rights obligations).
The simplest explanation for governments’ reluctance to increase the treaty bodies’ budgets is that economic times are hard, and other international projects (such as environmental conferences and trade negotiations) have been accorded higher priority.
However, there is also another plausible (if cynical) interpretation. The treaty bodies’ job is to ask difficult questions and bring uncomfortable truths to light; scrutiny which governments would prefer to avoid. Representatives’ hostile reactions to criticism by the High Commissioner in June at the Human Rights Council bear this out. Lest you think such reactions are the sole province of ‘rogue States,’ Elizabeth Evatt AO provides a handy history lesson on the CERD’s review of Australia in 2000. A similar history lesson on the United States’ rocky relationship with the UN human rights mechanisms is provided by Professor Tara Melish.
Ban Ki-moon notes that “[t]he treaty bodies can be effective only if properly funded.” He also points out that “States created these bodies to ensure that the rights of individuals did not remain as empty ideals and commitments.” Addressing governments directly, he says: “As the creators of the UN human rights system, you have a responsibility to the populations under your jurisdictions – and under the Charter – to ensure this framework for protection survives. It may entail short-term costs, but the long-term gains will be greater by far…. Human rights are at the heart of the UN system, and treaty bodies are at the heart of the UN human rights machinery. We cannot afford to undermine these critical engines of the human rights protection system. We must strengthen them.”
Pillay concurs: “A weak treaty body system has a far-reaching detrimental effect in relation to its immediate beneficiaries, but it also affects the United Nations human rights machinery as a whole…as well as the global human rights movement.”
In their own comments, governments prefer to focus on increasing efficiency in the operation of the treaty bodies, for example by making members use more economical travel options. Discussions about ‘strengthening’ and restructuring have been going on for many years, but the myriad meetings and discussion papers produced on the subject have largely danced around the indelicate topic of the necessity for a huge funding injection until this latest report from the High Commissioner.
Some States, such as Finland, agree with the Secretary-General that concrete action is needed and that the treaty bodies’ budget should be reviewed periodically like that of the European Court of Human Rights. However, during consultations in April 2012 most States continued to say (albeit in typical diplomatic code) that efficiency and flexibility were more appropriate solutions in these straitened economic times. However, they hastened to add that their recommended “cost-saving measures must not compromise the quality or content of the reporting process.”
Assistant Secretary-General for Human Rights Ivan Šimonović has laid out a scenario in which no extra funding is forthcoming. Backlogs would increase to the point that State party reports would be out of date by the time the Committees come to consider them and updates are requested, perhaps in parallel with preparation of the next periodic report. States will inevitably baulk at this, and even fewer will report on time. Some may prepare abbreviated reports without proper consultation; or even stop reporting altogether. Unfortunately, this is already starting to happen.
As for individual communications, huge backlogs mean increasing delays, which severely affect complainants’ chances of receiving adequate remedies.
Šimonović points out that there are several new ratifications of human rights treaties every month, which are welcome but which add to the burden borne by the treaty bodies. He concedes there may be some room for cost savings and efficiency gains, but he says “it is quite clear that the treaty body system will constantly deteriorate without additional investment by Member States.”
The treaty body crisis could well have ramifications for the whole UN system, in which the human rights machinery plays a crucial role. The treaty bodies are an important catalyst for raising human rights standards amongst States parties and shining a light on violations. In some States where there are less-developed domestic mechanisms, their role in ensuring accountability is even more important. If they are left to wither, the loss of their civilising influence will be felt by the most vulnerable around the world.