The United Nations Human Rights Treaties
International Law Association Report on the Treaty System
Reproduced below is the First Report of the International Law Association’s Committee on International Human Rights Law and Practice, submitted to the Helsinki Conference, 11-17 August 1996. The Committee was established after the Buenos Aires Conference to replace the former Committee on the Enforcement of Human Rights Law.1 The study was prepared by the Committee’s Canadian member, Professor Anne F. Bayefsky, York University, Canada.
INTERNATIONAL LAW ASSOCIATION
HELSINKI CONFERENCE (1996)
COMMITTEE ON INTERNATIONAL HUMAN RIGHTS LAW AND PRACTICE
REPORT ON THE UN HUMAN RIGHTS TREATIES: FACING THE IMPLEMENTATION CRISIS
The United Nations inspires the hope of so many of the world’s downtrodden. Every year thousands of individuals and groups appeal to UN bodies for help. On their behalf a myriad of non-governmental organizations attempt to place their cases on the international agenda. When national institutions fail, when governments are unresponsive, millions of the tortured, the repressed, the hungry, turn to the UN.
In response to those pleas, and in the knowledge that the protection of human rights can fare poorly in political fora where improvement of the human condition is not the primary aim, there has been a 50 year effort at the UN to set universal legal standards. At the center of this endeavor stands the system of human rights treaties, legally-binding norms which attach to all ratifying states. The treaties have now been ratified by a large proportion of the UN community. To a large extent the standards are in place, broad legal responsibility is assured.
The spectre of the needy however, has not faded away. Their voices make clear that somewhere along the path the international legal response to the protection of human rights has lost its way. Half a century after the project of developing and adopting human rights treaties began, the ultimate goal of alleviating human suffering remains elusive. What happened? What distances the legal undertaking from its objectives?
The international lawyer does not operate in a vacuum. Norms are not intended to be drafted for their own sake. Ratification of human rights treaties was not meant to be an end in itself. Yet the record reveals a serious rift between standard-setting and implementation.
Conceptual agreement has been reached on the interdependence of peace and security and the adequate protection of human rights. The dividends in terms of increased enforcement of human rights standards, however, have not been realized. This report seeks to identify the major deficiencies of the human rights treaty system and to identify detailed recommendations for improving implementation.
THE HUMAN RIGHTS TREATY SYSTEM
At the heart of the UN’s legal system for the protection of human rights lie the six major human rights treaties, adopted between 1965 and 1989. The treaty system, of course, is optional. Obligations are dependent upon ratification. Nevertheless, today participation in the treaty system is extensive. More than three-quarters of the world’s states have ratified five of the treaties, while 50 percent have ratified a sixth.2
The treaties relate to a broad range of human rights concerns: racial discrimination, economic, social and cultural rights, civil and political rights, discrimination against women, torture, and children.
Implementation is monitored by six treaty bodies or committees. These monitoring bodies have been in operation for between five and 25 years. During that time they have met for between 25 and 160 weeks. They have considered between 40 and 675 state reports.3
In light of the broad participation in the treaty system and the considerable length of time in which the monitoring bodies have operated, an assessment of the efficacy of the regime now can be based on a significant degree of experience.
Successful implementation depends both on the substantive or normative quality of the rules, and on their accompanying procedural or enforcement methodologies.
On a substantive level, the treaties themselves embody certain concepts which diminish the capacity for effective implementation. In particular, the Cold War context of the drafting exercise had a number of negative consequences for the content of the treaties. To make ratification more palatable they contain broad limitation clauses, by which rights and freedoms can be avoided on the basis of public order, morality and health, and national security. In the past these clauses frequently were invoked by states parties in defense of their policies and practices. The limitation clauses still are summoned occasionally. For example, in July of 1993 Iran appeared before the Human Rights Committee, a body which monitors the Covenant on Civil and Political Rights.
The Iranian representative stated:
This statement notwithstanding, the monitoring bodies now question and criticize directly such spurious references to the limitation provisions.5
More importantly, on a procedural level the enforcement regime associated with the treaties is seriously flawed. It operates in the following way. States parties are required to produce reports on how their laws and practices adhere to the terms of the treaty. These reports are written for each treaty generally every four to five years. Once produced, state representatives appear before the respective treaty body and answer questions concerning the report. These question and answer sessions are public. Upon conclusion of the so-called “constructive dialogue,” the treaty body formulates and releases concluding observations on the report and the state’s record of compliance with the treaty obligations.
The success of the scheme depends on many factors, in particular: the extent to which states comply with their reporting obligations and submit reports; the amount of time the treaty bodies have to question state representatives; the amount of independent information on a state’s human rights record available to the treaty body members; the accessibility of many aspects of the process to non-governmental organizations (NGOs) and individuals; the drafting of state reports, the dialogue, information flow to the treaty bodies; the ability of treaty bodies to follow-up inadequate reports or oral replies; the quality of the treaty body’s concluding observations; the extent to which the questioning and conclusions of the treaty bodies is followed by the media.
On each of these different points, the system falters. Forty-five to 80 percent of states parties to the six treaties have overdue reports. About half of this number are initial reports. Eighty-one states, or an average of 60 percent of states parties to all the treaties, have five or more overdue reports. In fact, the system relies on this degree of non-compliance. On the basis of the meeting time currently allotted to the treaty bodies, if all the overdue reports actually were submitted it would take the treaty bodies an average of eight years just to expunge the backlog.
The treaty bodies meet for varying lengths of time annually, from two weeks for the Women’s Discrimination Convention to nine weeks for the Human Rights Committee and the Child Committee. Within that time frame, the treaty bodies spend between three hours to ten and a half hours on each state report. The shortest period relates to the Racial Discrimination Committee and the Women’s Discrimination Committee, and the longest to the Human Rights Committee.6 These few hours are only repeated generally once every four to five years. In that space of time, a country presents its report; questions are put by ten to 23 treaty body members (depending upon the Committee); the state responds; there are sometimes follow-up questions and subsequent responses; and final comments are made by the treaty body members. Obviously, the ability to have a frank discussion, or at least one in which the treaty body members are able to expose the shortfalls in a state’s record, is severely limited by the restrictions on meeting time.
The treaty body members are not full-time. Beyond expenses during meetings, they receive only a small honorarium and no other support. The treaty bodies are serviced by a permanent UN secretariat, which involves only the equivalent of one full-time professional per committee. Information relating to human rights from a multitude of sources is not organized in the UN on a state-by-state basis. For all these reasons, it is difficult for the UN staff or treaty body members themselves to gather comprehensive, reliable material relating to all the states parties. To a considerable extent the treaty bodies rely on information provided by NGOs. In the early years, many Eastern-bloc treaty body members impeded the use of information from non-UN sources. Although such interference still occurs, in general the information is welcomed and used.
The flow of information, however, depends on the access which NGOs have to the process. The treaty bodies mainly meet in Geneva and occasionally in New York. Their schedules of country reports, the actual dates at which they will be considered, usually are not known well in advance. The UN and the treaty body members generally do not take it upon themselves to inform NGOs of the forthcoming meeting times. Neither do most states parties. Public access to UN premises is difficult. Even obtaining a country’s report, or the subsequent concluding comments on a state, is frequently arduous.
At the same time, in the case of the Child Committee and the Women’s Discrimination Committee, NGOs have taken it upon themselves to institute an NGO coordinator or create a focal point for NGO submissions, and they make contact with those persons having information on forthcoming reports. International NGOs also are familiar with the UN and the processes, and are able to interact with the treaty bodies. Furthermore, two of the treaty bodies specifically have set aside meeting times in order to have an oral exchange with NGOs about the human rights conditions in states which they are due to consider.
The “constructive dialogue” between representatives of the state party and the treaty body members frequently amounts to a series of unclear, incomplete, misleading, or dishonest representations, on the one hand, and a series of polite, but skeptical responses, on the other hand.
For example, state parties appearing before the various treaty bodies have made some of the following statements. The representative of Tunisia told the Human Rights Committee:
The Algerian representative told the Economic, Social and Cultural Rights Committee that:
The Mexican representative told the Racial Discrimination Committee:
The Nigerian representative told the Racial Discrimination Committee in August 1995:
At the same time, there are sometimes some candid admissions by states about human rights deficiencies. For example, before the Child Committee the Jamaican representative said:
Senegal told the same Committee:
In many instances, state party representatives are not prepared to answer the questions posed. For example, during the report of Pakistan to the Child Committee, the Pakistan representative said:
The treaty bodies generally recognize the inadequacies. In a typical remark, for example, one member of the Human Rights Committee told the representative of Togo bluntly that “he considered the report a bad one”15 A member of the Human Rights Committee told the Libyan representative:
Having recognized the inadequacies of reports and oral replies, however, the important issue becomes what the treaty bodies then do. They have a wide range of responses to these shortfalls. Usually, they simply ask the state party to include responses to their queries in the next report., normally years hence. Sometimes they ask for the information to be submitted in writing prior to the consideration of the next report. Very infrequently, they set deadlines for the receipt of written responses and follow-up non-compliance. Even more rarely do they insist that a state representative return to answer queries on new information received. Normally, the information is used in the course of considering the next report. While the whole process of follow-up to inadequate reports or inadequate oral responses is evolving, and is handled differently by each committee,17 in general it is a fundamental failing of the entire system. The treaty bodies do not have the practical capacity in terms of resources, staff or meeting time, to insist on answers and to follow through on their requests. The basic plan of state reports and evaluations for a few hours every four or five years remains the vehicle of implementation.
The final evaluation of the state’s compliance with the treaty, issued as “concluding observations,” is published in reports of the treaty bodies. These evaluations are of widely varying quality. Three of the treaty bodies issue concluding observations on states of between one to two pages in length and containing only a handful of specific recommendations for changes to laws or practices. On the other hand, the other treaty bodies issue longer concluding observations, and two of them routinely specify for each state at least 20 laws or practices which should be addressed. Brief, general conclusions are of very little value either to states or human rights advocates interested in reform.
The impact of forceful and detailed concluding observations will depend, however, on public interest in these conclusions and the extent of media attention. Yet another major shortcoming of the system is the fact that there generally is very little interest in the work of the treaty bodies. Attendance during the state reporting exercise is sparse. While dozens of people may attend the reports of the United States, the United Kingdom or Japan, there is often a sole representative of Amnesty International or one or two other persons from international NGOs watching the reports of developing countries. The treaty bodies make virtually no attempt to develop media links. Media coverage is almost entirely the work of the in-house UN press office. It issues routine, mundane press releases which are ignored.
Even though, for example, the United States presented its first report to the Human Rights Committee in New York (in March 1995), there was no mention of the Committee’s questioning or conclusions in the New York press. Media coverage is extremely important because states often do not distribute disparaging concluding observations to their nationals. Non-governmental women’s groups in Japan, for example, obtained the January 1995 concluding observations of the Women’s Discrimination Committee from outside the country and then translated it themselves.18 The Columbian reports to the Human Rights Committee never have been circulated inside the country.
The process of state reporting does not end there. The concluding observations of the treaty bodies are sent to the UN General Assembly. They identify the states which do not meet their substantive treaty obligations. The annual reports also name states which fail to submit reports. In addition, the chairs of all the treaty bodies meet annually and adopt recommendations which are forwarded to the General Assembly. This same material also goes to the UN Commission on Human Rights or the Commission on the Status of Women. Through these vehicles, the treaty bodies request, for example, more meeting time, more staff, better documentation. The treaty body routinely appeal to the frequent ad-hoc meetings of all the states parties to each treaty, and ask them to take up issues like the large number of overdue reports.
The response is minimalist at best. The meetings of states parties simply refuse to deal with substantive issues. They will not take up questions like overdue reports since so many of them are culpable. They recently have refused to increase the Women’s Discrimination Committee’s grossly inadequate meeting time.19 The primary response of the General Assembly and the Commission on Human Rights is a resolution, adopted annually, on “Effective Implementation of International Instruments on Human Rights.” This resolution is carried by consensus but at the price of accepting a very limited text. At the Commission on Human Rights session in March 1995, for example, India insisted on the deletion of a paragraph which would have endorsed the following recommendation of the meetings of treaty body chairpersons to:
The result is a weak resolution, which at the 1995 General Assembly “urges States parties to make every effort to meet their reporting obligations,”21 concentrates on reducing the burden upon states faced with producing multiple reports to different treaty bodies, and emphasizes technical assistance. Technical assistance is supposed to help, for instance, states which are apparently “unable to comply with the requirements to submit their initial report.”22
In sum, the system of implementation of human rights treaties through voluntary state reports on compliance, followed by questioning of state representatives by an independent body of experts, is riddled with major deficiencies.
However, state reports are not the only vehicle for enforcing the human rights treaties. The right of individual petition is an optional feature of the Civil and Political Covenant, the Racial Discrimination and the Torture Convention. Where states accept these optional provisions, individual victims of violations of these treaties can complain to the treaty bodies.
It might be thought that, in contrast to the reluctance of states to admit human rights violations and encourage a thorough analysis by the treaty bodies, individual victims would force breaches more vigorously onto the public stage. The results to date, though, have been disappointing. Firstly, many states that ratify the treaties refuse to permit individual complaints. The number of states parties to the respective treaties that do not allow such complaints are 35 percent in the case of the Civil and Political Covenant, 85 percent in the case of the Racial Discrimination Convention, and 60 percent in the case of the Torture Convention.23
Secondly, the potential to lodge complaints is seriously underutilized. The Racial Discrimination Committee has decided the merits of only four cases, with a further two pending.24 The Torture Committee has made four decisions on the merits, found another 18 to be inadmissible and have only an additional 12 active cases.25 With respect to the most widely used mechanism, the Optional Protocol to the Civil and Political Covenant, an average of 44 cases per year have been registered since 1990 from states having a combined population of over one billion people. This number has remained fairly constant.26 Forty-three percent of states parties to the Protocol have never been the subject of a single communication, including states like Angola and Chad.
The reason for the failure to lodge complaints is not that the success rate is discouragingly low. In fact, roughly 50 percent of cases submitted to the Human Rights Committee are admissible, and of that number 75 percent have revealed violations of the Covenant. Clearly the process remains largely inaccessible; victims are ignorant of the possibility of lodging a complaint or they are reluctant to come forward.
Thirdly, considering the primary procedure of the Optional Protocol, the process has been of little assistance in the context of the human rights problems of Western democratic states. Forty percent of the caseload of the Human Rights Committee has come from states within one of the five UN regional groups that is known as the Western European and Other groups. Yet, only 12 percent of violations of the Covenant come from these states. The Committee has not handled more subtle human rights issues, such as those raising questions of discriminatory benefits from facially neutral rules, as well as it has gross violations of human rights, like infringements of the right to life.
The processes associated with the Optional Protocol’s complaint mechanism are not conducive to improving this situation. There are no oral hearings. All exchanges are conducted in writing. The Committee spends much of its time on state reports and has resisted recent attempts to focus its energies on individual complaints.27 There is also sufficient divergence of opinion among the 18 members of the Committee to impede development of a common and sophisticated jurisprudence.
For the remaining three human rights treaties the potential of lodging a complaint does not exist. Drafting of a right of petition has begun in the case of the Covenant on Economic, Social and Cultural Rights, and the Women’s Discrimination Convention.28 However, these developments remain at a preliminary state and adoption is many years away. The idea that individuals should be able to complain of violations of economic, social and cultural rights is contested by many states. The idea of lodging complaints of violations of the Women’s Discrimination Convention is met by general, widespread reluctance to bolster any implementation mechanism associated with this treaty.
The implementation crisis facing the principle UN human rights legal standards is now of dangerous proportions. For a great many states ratification has become an end in itself, a means to easy accolades for empty gestures.
The problem has arisen in part because of a deliberate emphasis on ratification. The primary goal of the UN community has been to achieve universal ratification of the human rights treaties. The underlying belief is that once universal ratification is realized, the implementation techniques can be strengthened. Once committed to participation, states will find it difficult to pull out and will find themselves ensnared in an ever-expanding network of international supervision and accountability.
In the meantime, ratification by human rights adversaries is purchased at a price, namely, diminished obligations, lax supervision, and few adverse consequences from non-compliance. The cost of membership has been deliberately minimized. One significant example of this phenomenon is the acceptance into the treaty regime of states that ratify only with broad reservations. These reservations purport to limit the obligations assumed. For example, many Islamic and Asian states only ratify the treaties with the caveat that any obligation sustained must first be compatible with Islamic law or a similar broad reservation.29 Such reservations are inconsistent with international law which requires reservations to conform to the object and purpose of the treaty, and in the case of human rights treaties means identifying and applying overriding, universal standards. Nevertheless, few states are prepared to challenge other states on the legitimacy of their reservations, and some important states like the United States and the United Kingdom currently are resisting attempts by the treaty bodies themselves to challenge reservations.30
The treaty regime has been depreciated by chronic levels of non-compliance, both with the substantive terms of the treaties, and with existing enforcement mechanisms. Stronger implementation machinery would mean, for example, expanding rights and procedures of individual petition, and adequate funding to allow greater familiarity with country situations, better investigation, and missions to states parties.
Clearly such fortifications to the implementation machinery will be met with significant resistance. In itemizing the following specific recommendations, the report therefore has focused on various improvements which the treaty bodies themselves can make without seeking state approval. It also includes other proposals which are intended to be forward-looking strategies, and which would require somewhat of a revolution in political will.
STATE REPORTING PROCEDURE
(i) Producing State Reports
The treaty bodies should support involvement of NGOs in the process of preparing the report. Treaty bodies should ask questions about NGO involvement. Treaty bodies should recommend that governments create a permanent mechanism to monitor implementation of the Convention, and that monitoring involve the cooperation of non-governmental organizations.
(a) Failure to Report
The treaty bodies should publish a separate document on overdue reports. It should highlight state-by-state the worst transgressors. It should be sent to meetings of state parties with requests for action. It should be sent to all other human rights mechanisms, such as the special rapporteurs and the High Commissioner for Human Rights, who should be asked to raise the subject at contacts with state representatives or while on country visits.
The treaty bodies should not agree to combine overdue reports in a single document. Receipt of the first overdue report may give rise to a rescheduling of the due dates for subsequent reports.
(b) Quality of Reports
The treaty bodies should request states parties to redo significantly unsatisfactory reports in accordance with treaty body guidelines prior to examination.
The treaty bodies should ask states to quote directly in their reports from important national laws to which they refer.
The General Assembly should provide the treaty bodies with enough time and resources to ensure that reports are taken up soon after they are submitted. A large backlog of submitted reports is unacceptable.
(ii) Examining State Reports
(a) Caliber of State Representatives appearing before the Treaty Bodies
The treaty bodies should set guidelines that indicate the qualities or expertise of state representatives that will be most useful for the dialogue.
(b) Quality of the Dialogue
The treaty bodies should insist that states parties adhere to their undertakings made during the dialogue to provide answers in writing at a later date.
The treaty bodies should be encouraged to offer direct and forceful criticism of the accuracy of state reports.
The treaty bodies should support and encourage governments that submit honest analyses of their countries’ situations.
The treaty bodies should give states written questions several months in advance of the dialogue and request written answers in advance of the dialogue.
The treaty bodies should conduct the examination of state reports, and the adoption and release of concluding observations, in the state concerned, or at least in the region.
(c) Quality of the Members of the Treaty Bodies: Political Independence
States parties should not nominate individuals to the treaty bodies who are not wholly independent of the government. Guidelines should be formulated by the Center for Human Rights, or the High Commissioner for Human Rights, that indicate that individuals nominated should not be government employees, and should meet criteria such as the ones set out in the Covenant on Civil and Political Rights, namely, of high moral character, recognized competence in the field of human rights, and preferably (particularly where rights of individual petition exists) having legal experience. States parties should insist that these guidelines be followed when elections to the treaty bodies are held.
(d) Time Allotted for the Dialogue
The treaty bodies should place time limits on each stage of the dialogue, including the government’s opening statement and Committee questions.
Treaty body members should not duplicate each other’s questions. Treaty body members should decide in advance what issues are most important for a given state, and be governed in their questioning accordingly.
The treaty bodies should spend the time necessary to conduct the dialogue properly; at least three meetings should be spent per state party.
The treaty bodies should keep a running calculation of the backlog of meeting time if all reports were to be submitted and the appropriate amount of time was spent in the examination of each report. This figure should be indicated in their annual report, and sent to states parties meetings, and raised at every appropriate opportunity.
In the long term, the General Assembly should consolidate the reporting systems of all the human rights treaties and create one permanent body for the consideration of state reports on subjects covered by all six treaties.
(e) Information Beyond the State Reports Available to the Treaty Bodies
(1) The United Nations
The Center for Human Rights should ensure that there is a systematic accumulation of human rights information from all UN sources on a country-by-country basis.
The General Assembly should provide the necessary resources for the systematic accumulation of human rights information from all UN sources on a country-by-country basis.
The treaty bodies should develop guidelines for information submitted by NGOs, which NGOs should then be encouraged to use. The treaty bodies should indicate what information is most useful, and suggest the manner in which it should be presented, including focusing on specific laws and practices.
The treaty bodies should insist that NGO information which is distributed by the Committee staff, or upon which oral presentations or submissions are permitted, is related to the respective treaty.
The Center for Human Rights should employ individuals who have responsibility for NGO relations.
The Center for Human Rights should acknowledge information received from NGOs.
The Center for Human Rights should distribute treaty body material relating to the state that is of interest to NGOs making submissions to the treaty bodies as it becomes available.
The treaty bodies should insist that the staff develop mailing lists of NGOs in the states parties.
The treaty bodies should insist that national and international NGOs are informed of relevant information, including: due dates of state reports, receipt of state reports by the UN, and dates of forthcoming dialogues.
The treaty bodies should ensure that national and international NGOs are encouraged to send any relevant information on the country concerned to the treaty bodies.
The treaty bodies should invite NGOs to make oral presentations on states that are due to be considered at the same session. The treaty bodies should select NGOs to participate on the basis of prior written submissions. These written submissions should be used to evaluate the quality and usefulness of the material to be presented.
The treaty bodies should insist that all oral presentations relate to a state report due to be considered and to the provisions of the respective treaty. The treaty bodies should be concerned to ensure that the process of commentary is not abused for political purposes.
The treaty bodies, prior to the dialogue with the state, should send NGO information which has been submitted to the state party concerned (unless exceptional, clear issues of safety of individuals arise).
The treaty bodies should develop their schedules for considering reports one year in advance.
The treaty bodies should ensure that the days for the consideration of a single state report are consecutive, including the time for the adoption and release of the concluding observations on the state just considered.
The treaty bodies should visit states parties in order to engage in fact-finding prior to the scheduled consideration of state reports. Fact-finding for every state party should be carried out on a routine, non-discriminatory basis. It would not be necessary for all members of the treaty bodies to visit every state.
The treaty bodies should visit states parties which have not reported for an unreasonable length of time, in order to both engage in fact-finding and facilitate the production of a report or solicit alternative sources of information.
The General Assembly should ensure that the treaty bodies have sufficient resources and administrative support to engage in fact-finding.
(iii) Implementing Concluding Observations
The treaty bodies should include the list of questions given in advance to states parties in their annual reports.
The treaty bodies should include a summary of the state’s responses to their questions in their annual reports.
The treaty bodies should insist that summary records are produced wholly in one language in a timely fashion.
The General Assembly should ensure that the treaty bodies have sufficient resources to facilitate the production of summary records wholly in one language in a timely fashion.
(a) Quality of Concluding Observations
The treaty bodies should adopt more detailed and lengthier concluding observations. This recommendation is directed particularly to the Racial Discrimination Committee, the Torture Committee and CEDAW.
The treaty bodies should include references to as many specific laws and practices in their concluding observations as possible.
The treaty bodies should adopt concluding observations which are direct and do not avoid criticism where it is due. Concluding observations should not seek primarily to mollify states, or lay stress on the willingness of states merely to participate.
(b) Access to Concluding Observations
The treaty bodies should adopt concluding observations on a particular state following the dialogue and release those observations immediately, without waiting until the end of the session.
The treaty bodies should issue concluding observations as separate documents.
The treaty bodies should distribute concluding observations to NGOs and the press immediately following their adoption.
The treaty bodies should develop much greater links with the media, including: sending notices of news conferences to both national and international media, calling specific media contacts prior to news conferences, meeting the media for the purposes of explaining the process and the significance of particular concluding observations both informally and formally. The treaty bodies should ensure that where the dialogue and the release of the concluding observations is conducted in the state concerned, the ability of the media to attend is a prerequisite for the occasion.
(c) Follow-up of Concluding Observations
(1) The Treaty Bodies
The treaty bodies should include in their concluding observations any requests for additional information.
The treaty bodies should set deadlines for the receipt of additional information.
The treaty bodies should publish additional information which is submitted.
The treaty bodies should follow-up failures to provide additional information that has been requested.
The treaty bodies should publish a separate document containing the following information on a state-by-state basis: any follow-up measure requested such as a request for additional information, the deadline for receipt of the additional information, an indication whether the information was received, the UN document number in which additional information was published.
The treaty bodies should publish a document containing information on a state-by-state basis which indicates all references in the concluding observations to areas in need or technical assistance and advisory services. The document also should indicate the state response to these observations.
The treaty bodies should transmit the publication containing specific recommendations on a state-by-state basis and the responses received to: the Commission on Human Rights, the Commission on the Status of Women and the General Assembly.
The treaty bodies should publish a document containing information on a state-by-state basis which indicates all references in the concluding observations to areas in need of technical assistance and advisory services. The document also should indicate the state response to these observations.
The treaty bodies should ask state representatives to attend the next session in order to consider additional information that is submitted following the dialogue, where that information is significant or identifies likely violations of the Covenant.
The treaty bodies should publish a separate document containing a list of the offenders in relation to different categories of compliance with the treaty. The categories should be: overdue reports, inappropriate state representatives, non-compliance with specific recommendations made in the concluding observations.
(2) The Commission on Human Rights, the Commission on the Status of Women,
the General Assembly
The Commission on Human Rights and the General Assembly should coordinate current resolutions which deal in whole or in part with the treaty bodies, namely, the resolutions on women, children, torture, race, effective implementation, and the status of the covenants. A combined resolution on all aspects of the treaty bodies is preferable.
The Commission on Human Rights and the General Assembly should pass a coordinated global resolution on the treaty bodies which contains the following elements:
The Commission on Human Rights, the Commission on the Status of Women and the General Assembly should pay due attention to the individual concluding observations of the treaty bodies on each state.
The Commission on Human Rights, the Commission on the Status of Women and the General Assembly should pass country-specific resolutions on states parties to the human rights treaties where the concluding observations of the treaty bodies indicate significant cause for concern.
The Commission on Human Rights, the Commission on the Status of Women and the General Assembly should create further investigative procedures such as country rapporteurs, or request detailed country-specific reports from the Secretary-General where violations of the human rights treaties are serious. The threshold for appointing such additional investigative mechanisms should be the same for every UN member.
The General Assembly should support legitimate requests for expert studies made by the treaty bodies.
The General Assembly should ensure that sufficient resources are provided for CEDAW to have nine weeks of meeting time annually.
(3) Meetings of States Parties
Meetings of states parties should take up substantive issues, such as: overdue reports, reservations, and serious substantive non-compliance with the treaty.
Meetings of states parties should recommend increasing the meeting time allotted to CEDAW to nine weeks, the equivalent of the time allotted to the Child Committee and the Human Rights Committee (which has fewer ratifications).
The treaty bodies should decide the issue of the compatibility of reservations with the object and purpose of the treaty.
States parties should accept that the treaty bodies should decide the issue of the compatibility of reservations with the object and purpose of the treaty.
States parties should withdraw reservations that are incompatible with the object and purpose of the treaty.
All states parties should object to reservations that are incompatible with the object and purpose of the treaty.
States parties should support moves by the treaty bodies to conduct a dialogue with a state party that has made reservations that are incompatible with the object and purpose of the treaty, and moves to extend questions to areas covered by such reservations.
(iv) Moving Beyond State Reports
(a) Examining States that have Failed to Report
The treaty bodies should examine states that have failed to report for a considerable length of time.
The treaty bodies should ensure that in circumstances where they have examined a state in the absence of a report, that concluding observations are of an equivalent quality to those observations adopted when a state has produced a report.
(b) Urgent Situations
(1) Regular State Reports
The treaty bodies should keep states under examination for more than one session where the human rights conditions warrant greater scrutiny.
(2) Exceptional Reports
The treaty bodies should adopt clear non-discriminatory guidelines for selecting states for consideration outside the framework of the regular reporting mechanism.
The treaty bodies should request exceptional reports in urgent situations provided that states are selected in accordance with guidelines. The treaty bodies should ensure that any decision to request an exceptional report should not be based on political motivations.
The treaty bodies should utilize such an irregular reporting procedure only very exceptionally, so as to preserve the unique capacity of the treaty bodies to address adequately human rights situations in the vast majority of the UN states.
GENERAL COMMENTS AND RECOMMENDATIONS
The treaty bodies should elaborate general comments on the interpretation of treaty provisions.
The treaty bodies should ensure that elaboration of general comments is confined to subjects within the purview of their respective instruments.
The treaty bodies should ask for expert assistance in elaborating general comments. The treaty bodies should convene meetings of experts prior to finalizing general comments.
(i) Accepting the Right of Petition
The states parties and the General Assembly should amend the human rights treaties, or draft an optional protocol, which makes ratification of the human rights treaty conditional upon acceptance of a right of individual petition.
(ii) Shortage of complaints
The treaty bodies should make it a priority to attract more individual communications. The treaty bodies should use the media to publicize the right of individual petition in states where it is available.
The Human Rights Committee should immediately drop its “gag rule” on speaking publicly about communications that are before it.
All treaty bodies having a right of individual petition should hold regional meetings with lawyers and local human rights defenders in order to explain the petition process.
(iii) Quality of Decisions
The Human Rights Committee should spend a greater amount of time on individual communications.
The Human Rights Committee should develop more detailed reasoning on decisions taken on the merits of communications. The Committee should vote if necessary, rather than adopt concluding observations without adequate rationale.
The Torture Committee should spend the amount of time necessary to handle individual communications properly, even if at the expense of time spent on state reports.
The treaty bodies should conduct public hearings on communications.
The treaty bodies should conduct public hearings on communications within the state concerned.
The treaty bodies should take the issue of admissibility and the merits together in circumstances that indicate no serious impediment to admissibility.
The treaty bodies should monitor closely circumstances of potential intimidation of authors of communications or potential authors. They also should monitor the potential for intimidation in states that do not have, or have very few, communications.
The General Assembly and the Human Rights Commission should encourage the Torture Committee’s determination to publish Article 20 decisions in circumstances where states refuse to cooperate. The Torture Committee should ensure that the inquiry and publication should take place at a faster rate than the five and a half year process evident in the first case in which the Committee took this step.
The Torture Committee should send the results of Article 20 inquiries to the individuals or NGOs which originated the complaint, and any other individual or NGO directly affected by the outcome, or who has expressed an interest in the subject.
The Human Rights Committee, the Committee Against Torture and the Racial Discrimination Committee should request follow-up information from the state party on implementation of the Committees’ views on all individual communications. The relevant treaty body should insist on precise replies, including the details of relevant legislation, and financial terms, to their requests for follow-up information.
The Human Rights Committee should immediately publish a separate document containing all follow-up information that has been received on individual communications, on a state-by-state and case-by-case basis. Such a publication should be updated regularly.
The Torture Committee and the Racial Discrimination Committee should institute the practice of collating and publishing follow-up information.
The treaty bodies should not permit political considerations to affect decisions to publish follow-up information. It should be routine and compulsory.
The relevant treaty bodies should indicate whether the remedy indicated by the follow-up information was satisfactory.
The treaty bodies should undertake follow-up missions to individual states where replies for follow-up information on communications has been unsatisfactory.
The treaty bodies should publish full accounts of any follow-up mission taken in connection with individual communications.
(v) Expanding the Right of Petition
(a) Setting priorities
In the short term, the Human Rights Committee and the Torture Committee should place greater emphasis on the proper handling of individual communications.
States parties should nominate to the treaty bodies individuals having the capacity to handle individual communications, namely, persons with legal qualifications.
In the long term, the General Assembly should consolidate the optional protocol procedures for individual communications and the procedures for handling state reports. Such a consolidation should move to the creation of a permanent international court of human rights to deal with individual petitions arising from all of the six treaties.
(b) The other treaty bodies
The General Assembly should immediately adopt optional protocols permitting the right of individual petition for the Women’s Discrimination Convention, the Economic Covenant, and the Child Convention.
The General Assembly should be concerned to omit rights from new optional protocols containing rights of petition which are clearly non-justiciable. The determination of non-justiciability should depend on factors such as the impossibility of required factual determinations, or the inadequacy of the expertise of treaty body members.
AMENDMENTS TO THE HUMAN RIGHTS TREATIES
The Sub-Commission on Prevention of Discrimination and Protection of Minorities, the Commission on Human Rights and the General Assembly should not seek to add substantive protocols to the human rights treaties unless it is clear that the subject-matter of the proposed protocol is not covered by the existing treaties. Every effort should be made not to diminish the reach of existing treaty provisions by instituting another round of ratifications.
The Sub-Commission on Prevention of Discrimination and Protection of Minorities, the Commission on Human Rights and the General Assembly should consult the respective treaty bodies on proposed areas of potential substantive protocols.
The Commission on Human Rights should cancel the working groups on a protocol on the sale of children, child prostitution and child pornography, and the right to a fair trial, on the grounds of unnecessary duplication with existing provisions of the human rights treaties.
The Sub-Commission on Prevention of Discrimination and Protection of Minorities, the Commission on Human Rights and the General Assembly should place a priority on drafting new procedural amendments to the treaties directed at improving implementation, such as providing additional rights of petition, rather than increasing substantive standards.
Rapporteur, Professor Anne Bayefsky (Canada), Mr. Percy Bratt (Sweden), Mr. Andrew Byrnes (HQ/Hong Kong), Professor Thomas M. Franck (USA), Alternate: Professor Hurst Hannum, Chief Justice A.R. Gubbay (HQ/Zimbabwe), Mr. Christof Heyns (South Africa), Alternate: Professor John Dugard, Professor Menno Kamminga (Netherlands), Professor Eckart Klein (Germany), Alternate: Professor Matthias Herdegen, Justice Dennis Mahoney (Australia/New Zealand), Alternate: Dr. Keith Suter, Dr. Ernest Petric (Slovenia), Chief Justice Sajjad Ali Shah (Pakistan).
He also said:
17 The Committee on the Rights of the Child is much more advanced than the other committees in this regard, even publishing a separate document on “follow-up” of special requests for additional information and responses. See CRC/C/27 Rev.3 (1 Aug. 1995).
19 A state party meeting in May 1995 refused the direct request to increase the meeting time to six weeks annually, or a general recommendation to allow increases as necessary. Instead it adopted a formula which stymied the increase in the immediate future (and left the Women’s Discrimination Committee with no increase in 1996) by making it subject to future determinations, and additional meetings of states parties.
20 See the draft resolution E/CN.4/1995/L.28, operative paragraph 17 (21 Feb. 1995); India’s draft amendment E/CN.4/1995/L.119, point 14 proposing to delete paragraph 17; and the resolution as adopted, which omits the proposed paragraph. Commission on Human Rights Res. 1995/92, adopted 8 Mar. 1995, E/1995/23.
26 In 1995 the Committee registered 49 cases. In 1994 the Committee registered 35 cases. In 1993 the Committee registered 37 cases. In 1992 the Committee registered 46 cases. In 1991 the Committee registered 50 cases. In 1990 the Committee registered 47 cases.
28 The issue is currently before the Economic Rights Committee, which is formulating a draft instrument. In the case of the Women’s Convention, the issue is before a working group of the Commission on the Status of Women which has been instructed to draft such an instrument.
29 Indonesia’s reservation to the Convention on the Rights of the Child says: “The ratification of the Convention...does not imply the acceptance of...any obligation to produce any right beyond those prescribed under the Constitution.” The Malaysian reservation to the Child Convention says: “The Government of Malaysia accepts the provisions of the Convention on the Rights of the Child but expresses reservations with respect to Article 1, 2, 7, 13, 14, 15, 22, 28, 37, 40 para. 3 and 4, 44 and 45 of the Convention and declares that the said provisions shall be applicable only if they are in conformity with the Constitution, national laws and national policies of the Government of Malaysia.”