Reform of the UN Human Rights Treaty System - Reports - Report: Universality at the Crossroads by: Professor A.F. Bayefsky

Executive Summary

The human rights treaties are at the core of the international system for the promotion and protection of human rights. Every UN member state is a party to one or more of the six major human rights treaties. 80% of states have ratified four or more. It is a universal human rights legal system which applies to virtually every child, woman or man in the world - over six billion people. Yet human rights violations are rampant. The need is to make the human rights treaties effective in the lives of everyday people. The problem is that the implementation scheme accompanying the core human rights standards was drafted during a period of history when effective international monitoring was neither intended nor achievable.

Participation in the treaty system has expanded enormously in terms of ratifications, acceptance of individual communication procedures, the numbers of reports produced and considered, the individual cases decided, as well as the meeting time of six different treaty bodies. This participation and the assumption of legal obligations by states has been voluntary. The treaty rights generate corresponding legal duties upon state actors, to protect against, prevent, and remedy human rights violations. The treaty system definitively establishes the limitations on sovereignty, the validity of international supervision and accountability. The treaty standards are the benchmark for assessment and concern. Furthermore, at the national level a multitude of domestic legal and political systems have been positively affected by the treaties.

Nevertheless, the gap between universal right and remedy has become inescapable and inexcusable, threatening the integrity of the international human rights legal regime. There are overwhelming numbers of overdue reports, untenable backlogs, minimal individual complaints from vast numbers of potential victims, and widespread refusal of states to provide remedies when violations of individual rights are found.

The post of UN High Commissioner for Human Rights was constituted decades after most of the human rights treaties were adopted. Treaty body after treaty body was created, without a relationship to a High Commissioner, and without a relationship to each other. The result has been a burgeoning reporting burden, duplication of procedures, little effort to synchronize substantive outcomes, and rudimentary follow-up processes and responsibilities. In the meantime, treaty body members have struggled to preserve their independent expert status in a highly politicized UN environment, which has populated their numbers with many government surrogates and grossly underfinanced their work.

The reforms envisaged in this Report have assumed that improvements not requiring formal amendment will be more easily accomplished. Hence, the recommendations generally assume a six treaty body regime, and focus primarily on offering concrete suggestions for improvements in working methods of the treaty bodies and procedures at the Office of the High Commissioner for Human Rights (OHCHR). The proposals for bolstering national level partnerships are also made in the context of the current conditions of overlap and a multiplicity of treaty bodies. Follow-up is the key missing component of the implementation regime, and therefore recommendations in this context are developed at some length. While one major reform requiring amendment is ultimately recommended, most of the specific recommendations concerning working methods and OHCHR processes remain relevant to a reorganized treaty regime.

Ultimately, the human rights treaty system will remain inefficient and inadequate in the absence of consolidation of the treaty bodies. Some limited amendment is, therefore, unavoidable. The treaty bodies cannot handle in a timely manner the number of reports which the system now requires or produces, even if there was a general amnesty - which in practice is now the case.

The average consideration by each treaty body of a state for six or seven hours once every five years has not maximized constructive interaction. Six different working methods, documents, practices, rules of procedure, and reporting guidelines do not serve users. There is substantive overlap of treaty rights and freedoms, and inevitable overlap of reporting and dialogue. Examination of a single state in light of all human rights information, encourages a coherent understanding of problems and needs. It means the concrete application of the "universal, indivisible, interdependent and interrelated" nature of rights. It integrates programmatic advice from the international level and matches the crosscutting character of human rights for operational agencies or organs at the national level. Consolidation would conform to the overall goal of modern UN reform which seeks to adopt a global approach to the needs of each country.

At the same time, consolidation is not a panacea. To work, it must be accompanied by a commitment on the part of states to accept the equally fundamental need for independent and expert membership on the monitoring bodies, coupled with the provision of adequate resources.

Examples of principal recommendations:

Treaty bodies

• Committee meetings should involve engagement with states parties, both in writing and orally, at multiple stages in the reporting process: an initial dialogue on a report, follow-up to requests for additional information, the failure to report, follow-up to inadequate responses to Views on communications.

• States parties should be requested to submit one consolidated report applicable to all treaties which they have ratified.

• The consolidated report should be organized on a thematic, rather than treaty by treaty, basis.

• The treaty bodies should adopt a more proactive approach to engaging in information exchange and encouraging programming initiatives with UN agencies/organs.

• Concluding observations should be far more cognizant of programmatic requirements.

OHCHR

• OHCHR should make incoming data on country situations available to the treaty bodies to a far greater extent. This entails the early creation of an adequate central database organized by state, requirements for the internal posting of information on the system, clear lines of responsibility for desk officers in relation to the work of the treaty bodies, and greater assistance in the preparation of country analyses. A system which avoids different OHCHR staff repeatedly familiarizing themselves with the same human rights conditions in a single state should be instituted.

• OHCHR should introduce a "management of follow-up" process in-house. A follow-up analysis of concluding observations should be conducted. Key needs and programmes drawn from the concluding observations and Views should be identified. OHCHR should adopt a proactive role in utilizing its field mission and technical cooperation capacity to directly support the substantive outcomes of the treaty bodies. The "management of follow-up" process should include the identification and implementation of a specific set of expectations for the High Commissioner.

• A standard model national human rights action plan which incorporates a national implementation strategy for human rights treaties should be developed and promoted.

• OHCHR should review all proposed CCA and UNDAF documents to ensure that human rights, the treaty standards and the results of treaty body reviews, are integrated into UN programming.

• A coherent, principled and transparent set of guidelines should be developed to channel or stream communications to treaty bodies and/or special procedures. Streaming guidelines should place a clear priority on the implementation of the treaties' legal obligations and their concomitant procedures and remedies.

• CEDAW should be moved to OHCHR in Geneva, and the petitions and inquiry functions under the CEDAW Optional Protocol should be integrated into the OHCHR Petitions Team.

• OHCHR should assume a leadership role in encouraging broader reforms and organize consultations or an informal task force of interested states parties concerning the issue of consolidation of the treaty bodies.

• OHCHR should produce an annual report on compliance with treaty standards on a state-by-state basis for all state participants in the treaty system. It should include a compilation of the reporting record, current reservations, summary of recommendations in concluding observations and findings of violations of individual cases or inquiries.

NGOs

• A central database of NGO partners at the international and national level should be created.

• NGOs should be encouraged and assisted to develop an integrated approach to implementing human rights treaties, aimed both at maximizing national input at the international level, and using international standards at the national level in policy and legal advocacy.

• Further steps to inform national level partners and to engage them with the treaty system's processes and outcomes need to be taken by both OHCHR and the treaty bodies. This includes an improved media strategy, greater efforts to contact directly NGOs at the national level, more transparent procedures and the publication of user-friendly manuals on a number of treaty body functions.

• An NGO-treaty body liaison officer should be appointed to assist and facilitate various aspects of the NGO-treaty body relationship.

UN Agencies, Bodies and Programmes

• Wherever OHCHR has a field presence or office, they should be invited to be a member of the UN Country Team. All Country Teams should have a human rights thematic group. In addition, human rights should be a crosscutting theme which is integrated into the work of all thematic groups.

• All CCA should include an assessment of the status of the implementation of human rights treaties ratified by the country concerned. Both the design and application of all UNDAF should use human rights treaty standards and concluding observations in the identification of development priorities, and in the design of development programmes by country teams and individual agencies/organs.

• UNDP should significantly deepen the extent and form of its cooperation with the treaty bodies. UNDP should apply the human rights guidelines of the Resident Coordinator system and specifically organize analyses of treaty implementation pre- and post- reporting.

States parties

• States parties should ensure that adequate funding is provided for the enhanced professionalization of the operations of the treaty bodies and OHCHR's supporting functions. Funding from the regular UN budget should be emphasized.

• Individuals who are employed by their governments in any way, or unprepared to terminate such employment upon their election, should not be nominated or elected for treaty body membership.

• States parties should develop and institute a national implementation strategy for human rights treaties. This should involve a step-by-step programme of action which recognizes the limited and secondary nature of reporting, and assumes primary responsibility for a national-level cycle of engagement: promotion of education concerning the standards, review of existing laws and practices, planning of amendments or future initiatives including incorporation of the treaties into domestic law, monitoring the implementation of those plans, reporting to the treaty bodies, and follow-up to treaty body conclusions.

• The Commission on Human Rights should establish an open-ended working group to elaborate a draft omnibus, procedural, optional protocol to all six human rights treaties (and the Convention on Migrant Workers). The purpose of the protocol would be to establish two consolidated treaty bodies, one for considering state reports and one for examining communications and inter-State complaints, and conducting inquiries.

For a complete list of recommendations see Section III.

Abbreviations

ACC Administrative Committee on Coordination (of the United Nations)

APB Activities and Programmes Branch (of OHCHR)

CAT Convention Against Torture

Committee Against Torture

CCA Common Country Assessment

CCPOQ Consultative Committee on Programme and Operational Questions (of the United Nations)

CCPR Covenant on Civil and Political Rights

CEDAW Convention on the Elimination of All Forms of Discrimination Against Women

Committee on the Elimination of All Forms of Discrimination Against Women

CEEPS Common Early Entry Point System

CERD Convention on the Elimination of All Forms of Racial Discrimination

Committee on the Elimination of All Forms of Racial Discrimination

CESCR Covenant on Economic, Social and Cultural Rights

Committee on Economic, Social and Cultural Rights

CRC Convention on the Rights of the Child

Committee on the Rights of the Child

DAW Division for the Advancement of Women (of the United Nations)

ECOSOC Economic and Social Council (of the United Nations)

GA General Assembly

GDP Gross Domestic Product

GNP Gross National Product

HRC Human Rights Committee

HURICANE Human Rights Computerized Analysis Environment

HURIST Human Rights Strengthening

ILC International Law Commission

ILO International Labour Organization

IWRAW International Women's Rights Action Watch

LAC Latin American and Caribbean (regional group within the United Nations)

MOU Memorandum of Understanding

NGO Non-governmental organization

OHCHR Office of the UN High Commissioner for Human Rights

SSB Support Services Branch (of OHCHR)

UNDAF United Nations Development Assistance Framework

UNDG United Nations Development Group

UNDP United Nations Development Programme

UNFPA United Nations Fund for Population Activities

UNESCO United Nations Educational, Scientific and Cultural Organization

UNHCR United Nations High Commissioner for Refugees

UNICEF United Nations Children's Fund

UNIFEM United Nations Development Fund for Women

WEOG Western European and Others Group (regional group in the United Nations)

WHO World Health Organization

Table of Contents

Section Page

I. Background 1

II. Report 2

1. Introduction 2

2. Overdue Reports 8

3. The Consideration of a State Party's Record in the Absence of a Report 12

4. Periodicity of Reports 14

5. Focussed and Consolidated Reporting 19

6. Inadequate Reports 22

7. Special Reports 23

8. Order of Considering Reports 24

9. The Timing of the Consideration of Individual Communications 25

10. Considering Individual Communications 26

11. Working Groups 29

12. The Special Rapporteur on New Communications 30

13. The Special Rapporteur on Follow-up to Individual Communications 33

14. Country Rapporteurs 36

15. List of Issues 38

16. Country Information within OHCHR 40

17. CORE Documents 45

18. Non-governmental Organizations (NGOs) 46

19. UN Agencies, Bodies and Programmes 51

20. The Special Procedures/Mechanisms 58

21. The Dialogue 62

22. Concluding Observations 66

23. Reservations 71

Section Page

24. Follow-up on State Reporting or Operationalizing the Human 77

Rights Treaties

(a) The Treaty Bodies 78

(b) International Follow-up Partners 81

(i) The Commission on Human Rights, ECOSOC, and

the General Assembly 82

(ii) UN Agencies, Bodies and Programmes 83

(iii) OHCHR - Advisory Services and Technical Cooperation 87

(iv) OHCHR - Field Presences 88

(v) The Role of the High Commissioner for Human Rights 89

(i) National Institutions 90

(ii) National Human Rights Action Plans 92

25. Treaty body Visits or Missions to State Parties 100

26. General Comments and Recommendations 103

27. Media 104

28. Meetings of Chairpersons of the Treaty Bodies 106

29. Treaty Body Members' Performance 108

30. Languages 112

31. Streaming Complaints 114

32. Documentation 123

33. The Venue for CEDAW 134

34. Servicing and Resources 136

35. Amendment 140

III. List of Recommendations 148

Endnotes 191

Annexes

(1) Statistical Analysis of the UN Human Rights Treaty System

Table of Contents A(1)/1 - A(1)/5

Section A: The Time Necessary to Consider State Reports A(1)/6 - A(1)/12

Annexes cont. Page

(1) Section B: The Overall Reporting Record A(1)/13 - A(1)/25

Section C: The Production of Reports A(1)/26 - A(1)/30

Section D: The Backlog of Reports A(1)/31 - A(1)/45

Section E: The Consideration of Reports A(1)/46 - A(1)/254

Section F: The Meeting Time of the Treaty Bodies A(1)/255 - A(1)/274

Section G: Overdue Reports A(1)/275 - A(1)/307

Section H: Individual Communications A(1)/308- A(1)/334

Section I: Ratification A(1)/335- A(1)/371

(2) Comparative Summary of Working Methods of All Committees A(2)/1 - A(2)/100

(3) Thematic List and Index of Treaty Rights and Freedoms A(3)/1 - A(3)/48

(4) Biographical Data Form of Candidates to Human Rights

Treaty Bodies A(4)/1 - A(4)/3

(5) Reservations and Declarations to the UN Human Rights

Treaty System A(5)/1 - A(5)/71

(6) Documentation Survey A(6)/1 - A(6)/22

(a) Comparative Table of Information Available in the Annual

or Sessional Reports

(b) "Documents Issued" in English (public and non-public)

in 1999

(7) Organizational Chart of The Office of the High Commissioner

for Human Rights A(7)/1

(8) Model Statement of Vision, Values, Mission and Performance A(8)/1 - A(8)/13

Indicators for OHCHR and the UN Human Rights

Treaty System

(9) Methodology A(9)/1

(10) Written Responses Received A(10)/1 - A(10)/6

(11) National Consultants and Contributors A(11)/1 - A(11)/3

(12) Sample Questionnaire for National Consultants A(12)/1 - A(12)/6

I. Background

This Report is the product of a study of the United Nations human rights treaty system commenced in 1999 and conducted in collaboration with the Office of the High Commissioner for Human Rights (OHCHR), with the support of the Ford Foundation. The contents and recommendations of the Report are the sole responsibility of its author. The purpose of the Report is to present recommendations for the enhancement of the operations of the human rights treaty system.

During the course of the study, submissions were solicited from a wide range of interested parties : ECOSOC-accredited non-governmental organizations (NGOs) with human rights interests; permanent missions of states in New York and Geneva; UN agencies and other bodies and programmes; chairpersons of treaty bodies; the OHCHR treaty body secretariat; national institutions; parliamentary human rights bodies; OHCHR field presences; special rapporteurs; International Law Association members; Academic Council on the UN System; academic experts. A list of responses received is attached. Interviews were subsequently conducted with individual treaty body members, representatives of states parties, UN secretariat officials, UN agency/organ representatives, NGO representatives, special rapporteurs, field mission representatives, and representatives of national institutions.

Meetings were conducted with five of six treaty bodies. In the case of the Committee on the Elimination of Discrimination Against Women (CEDAW), meetings were held with individual members including the Chair. Other meetings included participation in the Meeting of Chairpersons of the Treaty Bodies, an NGO consultation during the Commission on Human Rights, and a consultation conducted with individual experts from a wide range of parties: former treaty body members, the UN secretariat, participants in regional human rights bodies, special rapporteurs, UN agencies/organs, working groups, and the Sub-Commission on the Promotion and Protection of Human Rights. Solicitation of information was also done at the annual meetings of National Institutions and of Field Presences.

In addition, a national impact study was designed to evaluate the effect of the human rights treaties at the national level. Twenty national reports were prepared on the basis of a questionnaire and local interviews. Twenty countries were studied in depth, four from each of the five geographical regions: Australia, Brazil, Canada, Colombia, Czech Republic, Egypt, Estonia, Finland, India, Iran, Jamaica, Japan, Mexico, Philippines, Senegal, South Africa, Spain, Romania, Russia, Zambia. The national reports, along with an overview of results, will be published by Professors Christof Heyns and Franz Viljoen through Kluwer Law International.

The contributions of a number of important studies and in-depth examinations of the human rights treaty system over the past decade were the subject of particular attention: Reports of the Independent Expert on Enhancing the Long-term Effectiveness of the United Nations Human Rights Treaty System in 1989, 1993 and 1997 , comments invited by the Commission on Human Rights on the 1997 Final Report of the Independent Expert , submissions to the Vienna World Conference on Human Rights , and a Report of the International Law Association's Committee on International Human Rights Law and Practice . In addition, the twelve Reports issued by the Meetings of Chairpersons of the Human Rights Treaty Bodies have considered many of the major issues over a sixteen-year period.

II. Report

1. Introduction

Box 1

The Standards

The human rights treaty system encompasses six major treaties:

• the Convention on the Elimination of all forms of Racial Discrimination

(in force 4 January 1969)

• the International Covenant on Civil and Political Rights (CCPR)

(in force 23 March 1976)

• the International Covenant on Economic, Social and Cultural Rights (in force 23 March 1976)

• the Convention on the Elimination of Discrimination Against Women

(in force 3 September 1981)

• the Convention Against Torture

(in force 26 June 1987)

• the Convention on the Rights of the Child (in force 2 September 1990).

The 2001 Annual Appeal of the Office of the High Commissioner for Human Rights declares: "The human rights treaties are at the core of the international system for the promotion and protection of human rights." (Box 1) Every UN member state is a party to one or more of the six major human rights treaties. 80% of states have ratified four or more of these treaties. It is a universal human rights legal system which applies to virtually every child, woman or man in the world - more than six billion people. Yet human rights violations are rampant. There is still slavery, and torture, and subjugation of women around the globe. The challenge is, as one submission to the study pressed: How does the trafficked woman, traumatized and disoriented in a country whose language is unknown, seek redress? The need is to make the human rights treaties effective in the lives of everyday people.

The problem, however, is that the implementation scheme (Box 2) accompanying the core human rights standards was drafted during a period of time when effective international monitoring was neither intended nor achievable.

Box 2

The Treaty Bodies

The six treaties are associated with six treaty bodies which have the task of monitoring the implementation of treaty obligations. Five of the six treaty bodies meet primarily in Geneva, and are serviced by the OHCHR. These are:

1. the Committee on the Elimination of Racial Discrimination (CERD)

2. the Human Rights Committee (HRC)

3. the Committee on Economic, Social and Cultural Rights (CESCR)

4. the Committee Against Torture (CAT)

5. the Committee on the Rights of the Child (CRC).

One treaty body meets in New York and is serviced by the UN Division for the Advancement of Women:

6. the Committee on the Elimination of Discrimination Against Women (CEDAW).

The treaty bodies are composed of members who are elected by each group of states parties (or through ECOSOC in the case of CESCR).

The post of UN High Commissioner for Human Rights was constituted decades after most of the human rights treaties were adopted. Over a 35-year period, treaty body after treaty body was created, without a relationship to a High Commissioner and without a relationship to each other. The Chairpersons of these bodies began to meet, but as independent experts they have had little incentive or desire to introduce common strategies for reducing general duplication, harmonizing their procedures, or ensuring consistency among their substantive outcomes. They also have had little real opportunity to reduce the burgeoning overall reporting burden. The treaty bodies also struggled to preserve their independent expert status in a highly politicized UN environment, which kept a tight rein on their power and authority - populating their numbers with many government surrogates, and grossly underfinancing their work. (Box 3)

Box 3

The Functions of the Treaty Bodies

Meeting periodically throughout the year, the treaty bodies fulfill their monitoring function through one or more of three different methods.

First, all states parties are required by the treaties to produce state reports on the compliance of domestic standards and practices with treaty rights. These reports are reviewed at various intervals by the treaty bodies, normally in the presence of state representatives. Concluding observations, commenting on the adequacy of state compliance with treaty obligations, are issued by the treaty bodies following the review.

Second, in the case of four treaties individuals may complain of violations of their rights under the treaty (the Civil and Political Covenant, the Racial Discrimination Convention, the Convention Against Torture, and the Women's Discrimination Convention). These complaints are considered by the treaty body which expresses a view as to the presence or absence of a violation.

Third, in the case of CAT and CEDAW, their work includes another procedure. This is an inquiry procedure which provides for missions to states parties in the context of concerns about systematic or grave violations of treaty rights.

In addition, the treaty bodies contribute to the development and understanding of international human rights standards through the process of writing General Comments or Recommendations. These are commentaries on the nature of obligations associated with particular treaty rights and freedoms.

At the same time, the extent of participation in the UN human rights treaty system expanded enormously. (Box 4)

Box 4

The Growth

	1980	1985	1990	1995	2000
the cumulative number of ratifications	243	366	533	840	926
total number of weeks the treaty bodies meet annually (including pre-sessional weeks)	17	20	25.6	45.6	52
the cumulative number of reports considered	372	620	905	1244	1721
the total number of reports considered annually	46	49	75	74	108
the number of individual complaint procedures in force	1	2	3	3	4
the cumulative number of states ratifying individual complaint procedures	31	47	89	144	186
the cumulative number of General Comments /Recommendations	5	21	46	71	95

Statistical Analysis of the Human Rights Treaty System, Annex (1), Graphs 9, 43,120

Over the last decade ratifications in the treaty system have risen by 75%. Acceptance of communication procedures has risen by 92%. The number of state reports received has risen by 84%, and the number considered has risen 78%. The number of final views adopted on individual communications by the Human Rights Committee alone has risen 215%. The meeting time of the treaty bodies has tripled in the last two decades and doubled in the last decade. What began as an assertion of a few, is now a global proclamation of entitlements of the victims of human rights abuse.

Box 5

The Goals

The primary aims of the treaty system are to:

• encourage a culture of human rights

• focus the human rights system on standards and obligations

• engage all states in the treaty system

• interpret the treaties through reporting and communications

• identify benchmarks through general comments and recommendations

• provide an accurate, pragmatic, quality end product in the form of concluding observations for each state

• provide a remedial forum for individual complaints

• encourage a serious national process of review and reform through partnerships at the national level

• operationalize standards

• mainstream human rights in the UN system and mobilize the UN community to assist with implementation and the dissemination of the message of rights and obligations

Furthermore, this participation by states has been voluntary. The obligations of the human rights treaties have been freely assumed. It is the legal character of these rights which places them at the core of the international system of human rights protection. For these rights generate corresponding legal duties upon state actors, to protect against, prevent, and remedy human rights violations.

The treaty system definitively establishes the legitimacy of international interest in the protection of human rights. It is undisputed that sovereignty is limited with respect to human rights. International supervision is valid and states are accountable to international authorities for domestic acts affecting human rights. The treaty standards are the benchmark for assessment and concern. (Box 5)

Significantly, the international system has had implications at the national level. A multitude of domestic legal systems have been affected by the treaties. The treaties form the basis of a significant number of the world's bills of rights. There are also numerous instances of legal reform prompted by the treaties. NGOs and national human rights institutions have invoked the treaty standards in relation to proposed government legislation and policies. Legislative committees have used treaty standards as reference points. The treaties have sometimes been incorporated into national law, had direct application through constitutional provisions to national law, and been used to interpret domestic law through judicial intervention.

In theory, the subsidiary nature of international implementation to national mechanisms should permit a reduction of the burdens at the international level. In our time, however, this programme remains unachieved. Firstly, there remain lingering lacunae in participation. (Box 6)

Box 6

Non-participation

• The percentage of UN member states which have not ratified each of the human rights treaties is: 1% in the case of CRC, 13% for CEDAW, 19% for CERD, 23% for CCPR, 25% for CESCR, 35% for CAT,

• The percentage of states which have ratified one of the human rights treaties without ratifying the complaint procedures associated with them: 33% in the case of the CCPR (Optional Protocol), 66% for CAT (individual, Art. 22), 79% for CERD (Art. 14), 92% for CEDAW (Optional Protocol).

• The Asian regional group has fewer ratifications for every human rights treaty, except the Convention on the Rights of the Child, than any other regional group. 44% of its members have ratified CAT, 48% CCPR, 50% CESCR, 69% CEDAW, and 71% CERD. It also has the least rate of participation in the individual complaint procedures than any other regional group. 2% of its members have ratified the individual complaint procedure associated with CAT Article 22, 4% CERD Article 14, 4% the CEDAW Optional Protocol, 19% the CCPR Optional Protocol.

Statistical Analysis of the Human Rights Treaty System, Annex (1), Graphs 117, 137, 138.

Secondly, participation is neither synonymous with adherence to the procedures or substance of the treaty, nor with uniformity in substantive obligations. The key problem areas in the effective implementation of the human rights treaties are considerable:

• lack of access to the treaty procedures

• ignorance of the treaty provisions and processes

• failure to create national vehicles for implementation

• failure to produce state reports

• failure to remove impermissible reservations

• substantive inadequacy of state reports

• failure by the treaty bodies to consider reports submitted in a timely manner

• lack of access to reliable, comprehensive information by the treaty bodies

• inadequate concluding observations

• failure to follow-up concluding observations and views on communications

• failure to encourage individual complaints

• failure to professionalize the complaint process

• lack of resources for the treaty bodies and their secretariat

• duplication and lack of coordination among treaty bodies

• lack of coordination and streaming of individual cases within OHCHR

• lack of information-sharing or exchange on country situations between the treaty bodies and elements of OHCHR as well as other UN actors

• lack of expertise and independence of treaty body members

• wide discrepancy in the actual degree of engagement by states in the treaty system and a negative backlash from those actively involved.

The shortfalls in the original implementation scheme, and the resulting gap between universal right and remedy are arresting:

• an average of 70% of states parties to every treaty have overdue reports

• 25% have initial overdue reports

• there are twelve hundred reports overdue, but only sixteen hundred have ever been considered over 30 years of treaty body history

• four of six treaty bodies have two-year backlogs of submitted reports awaiting consideration

• about 100 states permit individual complaints of violations of a broad range of rights from discrimination on any ground, to freedom of religion, association, expression, fair trial, but 30% of those states have never been the subject of a single complaint, and only 60 complaints are registered annually from a potential 1.4 billion people

• there are facilities to submit human rights complaints to the United Nations, practically-speaking, in only three or four languages

• in only 20% of individual cases disclosing a violation, have states parties been prepared to provide a remedy.

If rights are not followed by remedies, and standards have little to do with reality, then the rule of law is at risk. The extent of the shortfalls in the implementation of the treaties now threatens the integrity of the international legal regime. Ratification for a very large number of participants in the treaty system has become an end in itself. The large numbers of ratifications reflect the widely-held view by states parties that there are not serious consequences associated with ratification. The price of joining has generally been appearing relatively infrequently, before a small number of individuals, in comparatively remote sites in Geneva and New York, for a brief period of time taken up by frequent monologues by state representatives or committee members. Many states parties ratified precisely because the international scheme was evidently dysfunctional and the lack of democratic institutions at home made the likelihood of national consequences comfortably remote.

At the national level, the quality of the outcomes of the international monitoring bodies has been insufficient to induce substantial human rights programming by national partners. The resources available to the Office of the High Commissioner for Human Rights have been insufficient to undertake by itself the follow-up to ratification of human rights treaties. On the other hand, many of the UN agencies/organs with resources, are only slowly accepting responsibility for follow-up and remain reluctant to become involved in the sensitive world of monitoring and implementation.

This Report formulates recommendations for reform on the basis of a number of methodological and other assumptions:

• Responsibility for shortfalls in implementation lies with a multiplicity of parties, and recommendations concerning the improved implementation of the human rights treaties must properly be directed to a number of actors, not least of which are the human rights violators themselves. Specific targets have therefore been identified.

• Reform at the international level may proceed in phases, and improvements which can be made without formal amendment to the treaties, are more easily accomplished.

• The recommendations generally assume a six treaty body regime, and focus primarily on offering concrete suggestions for improvements in working methods of the treaty bodies and procedures at OHCHR. The proposals for bolstering national level partnerships are also made in the context of the current conditions of overlap and a multiplicity of treaty bodies. Follow-up is a key missing component of the implementation regime, and therefore recommendations in this context are developed at some length.

• Detailed recommendations are made in light of existing working methods. The Report presumes some familiarity with those working methods, which are therefore summarized in Annex (2).

• Current operations have been assessed as objectively as possible, and hence, where possible the actual performance has been expressed in statistical terms. The statistical analysis appears in Annex (1). The uniform cutoff date for statistical information is 1 January 2000, unless otherwise stated.

Taken alone, however, these recommendations are inevitably bandaid solutions. Lasting solutions demand a reorganization of the implementation mechanism at the international level, as well as a substantial strengthening of the partnerships with many other actors at the national level. The system will remain inefficient and inadequate in the absence of consolidation of the treaty bodies, and consolidation will require amendment. This major reform is addressed in the final section of the Report. Most of the specific recommendations concerning working methods and OHCHR processes remain relevant to a consolidated treaty regime.

Consolidation is not a panacea. If UN states are unprepared to accept the equally fundamental need for an independent and expert membership of monitoring bodies, coupled with the provision of adequate resources, the core of the international system for protection and promotion of human rights will remain impoverished and irrelevant to literally billions of persons in need.

2. Overdue Reports

The number of overdue reports in the human rights treaty system is of overwhelming proportions. Precise statistics indicate the following. There are 1203 overdue reports, although only 1613 reports have ever been considered in the thirty-year history of the treaty system. An average of 71 percent of all states parties to each treaty have overdue reports. One-hundred and ten states have five or more overdue reports. The mean length of time those reports are overdue is five years. An average of 27 percent of states parties have initial overdue reports to each treaty. CEDAW has 242 overdue reports in theory, but only considers approximately 15 reports a year.

In attempting to answer the question why there are so many overdue reports, consideration was given to a number of possible factors. Statistical evaluation revealed a relationship between the number of overdue reports and a few indices, although there was not a strict correlation. To a limited extent, the number of overdue reports increases:

• for states ranked lower in the Human Development Index (2000)

• the lower the Human Development Index Value

• the lower the Gender Related Development Index Value

• the lower the GDP per Capita.

States receiving official development assistance are more likely to have overdue reports than donor states. States from the African regional group account for the largest percentage of overdue reports in relation to every treaty, on average 38% of all overdue reports. Variations in population size or geographic size in relation to overdue reports are not statistically significant.

The statistics suggest that the burden of state reporting is borne more poorly by developing countries. At the same time, factors pointing to a reduced level of human rights protection to some extent also increase the number of overdue reports, such as lower female literacy rates, female school enrolment, and female GDP per capita.

Solutions to the problem of overdue reports are suggested in this Report in stages, beginning with shorter-term recommendations. The problem as a whole in the context of more substantial reform is addressed in the final section on Amendment.

In the first instance, the treaty bodies have sought to address the fundamental problem of the number of overdue reports in the development of their working methods. Initially, they send out reminders to states parties at regular intervals. Even this limited response, however, is now problematic.

Calculating the date upon which an individual state has an overdue report has become increasingly complex. In practice, whenever a state submits a report any legacy of past overdue reports, or the lateness of the incoming report, is effectively ignored. The date for future reports is individually set based on the date considered. Given the backlog in four of six committees between submission and reporting, states do not even need to start counting the time span for the next report until their submitted report is actually scheduled and considered. With respect to the Human Rights Committee, the situation is now even less certain. A new rule adopted in November 2000 provides a shorter (unspecified) deadline for a follow-up report and longer (unspecified) one for the next periodic report. But it is unclear what kind of follow-up report will satisfy the shorter-term deadline. The result is that reminders of overdue reports based on a largely irrelevant, theoretical timetable are of little significance in encouraging states to comply with their reporting obligations.

It is important to have a transparent and easily comparative record of the extent of each state's compliance with reporting obligations. This must be developed for the existing regime which has so drastically changed the timetable based on the treaties themselves (or the rules of procedure). The significant figures which should be clearly reported are three:

a) the number of times the state has had reports considered

b) the date at which the state's report was last considered

c) for those states which have never reported, the date at which the state ratified the treaty.

At the same time, written reminders and blacklists given to the General Assembly have had little impact. The Human Rights Committee has appointed a focal point or Special Rapporteur for particular tasks (New Communications and Follow-Up). All committees could extend this example by charging a specific member with the responsibility of dealing with non-reporting states and implementing a programme of action for follow-up with non-reporting states.

RECOMMENDATIONS

Treaty bodies

Treaty bodies should each appoint a Special Rapporteur on Input, or the initial phase of State Reporting. That individual should

• regularly meet with government representatives concerning the failure to report

• write accounts in annual reports of such meetings

• recommend to the committee that targeted invitations be issued to specific governments to appear before the Committee in public session for the purpose of discussing the failure to report, reasons for the delays and possible action to be taken (including offers of support in the drafting of reports). (See also infra section 21. The Dialogue)

Letters of reminder should be sent annually by individual committees to those states with particularly egregious reporting records.

Treaty Bodies and OHCHR

Letters of reminder should be sent annually by the High Commissioner for Human Rights to all states parties highlighting their particular reporting record.

In addition to the global record currently produced on the detailed reporting history of each state party, a new global report should be created with the following two tables.

Table 1: Compliance with Reporting Obligations

state party

treaty body

date of ratification

number of reports submitted

number of reports considered

date at which report was last considered

date set by treaty body for next report; if there has been no date set (because of non-reporting or no consideration) this will be the date set by the treaty or the rules of procedure

This table should be in alphabetical order of states parties.

Note:

Number of reports considered should refer to the number of distinct occasions

at which a state "report" was considered. If a state submitted a so-called combined report (sometimes artificially referred to as more than one report), this would count as one report considered. There are also a few situations in which a state report was held over for one or two sessions, which would still be counted as a single consideration.

There will be states which have had their situation with respect to the treaty considered in the absence of a report, but this will not be relevant to a table of compliance with reporting obligations, although it may be the subject matter of a footnote or separate table.

Table 2

state party

treaty body

length of time since ratification

number of state reports considered

length of time since report was last considered [or in square brackets the length of time since

ratification if no report has ever been considered]

date set by treaty body for next report; if there has been no date set (because of non-reporting or no consideration) this will be the date set by the treaty or the rules of procedure

This table should be in order of the largest numbers in the fifth column, namely, states parties with the longest time since a report was last considered (per treaty) or if this is null, then the length of time since ratification.

Note:

There are states which submit reports, but continually delay their consideration, hence the need to emphasize the date considered. It will, however, incorporate the backlog between submission and consideration.

These tables should be provided to the General Assembly and the Commission on Human Rights on a regular basis.

The practice of including in annual reports a variety of different tables concerning reporting history, or lists of overdue reports, can be discontinued. Instead, a table highlighting those states with particularly egregious records (based on the tables above) in the context of an individual treaty should be developed and included in annual reports.

OHCHR

OHCHR should offer assistance to states parties in preparing reports, stressing in particular:

• the development of national strategies for drafting reports (for example, the kinds of governmental structure, or committees, and cooperation required; relationships with NGOs)

• technical advice or assistance on collecting statistics

• guidance in identifying legislation, policies, judicial decisions which should be monitored.

3. The Consideration of a State Party's Record in the Absence of a Report

There is no doubt that states with very poor human rights records have attempted, and largely succeeded in, eluding the monitoring system by failing to produce reports.

The working methods of some of the treaty bodies to long-outstanding reports have included the consideration of a state in the absence of a report. The HRC and CESCR are at the initial stages of this approach. CERD has been considering states in the absence of a report for many years and has done so on 65 occasions. However, CERD's practice has somewhat been determined by the proclivities of the Chair and in the last few years it has not invoked the practice nearly as often as in the past.

The production of a report, in theory, is intended to generate a dialogue within civil society about the requirements of the treaty, the application of the standards to local conditions, the shortfalls in compliance, priorities for redress, and the design of a plan of action. A cycle of pre-report consultation followed by post-report planning at the national level is supposed to be created via the periodic drafting of state reports.

The consideration of a state in the absence of a report, has a different set of goals, including:

a) encouraging the production of a report in the future

b) highlighting the states' record of compliance for the international community and providing an international forum for a human rights review in the absence of a national arena

c) producing a set of recommendations which might encourage reform

d) equal treatment of ratifying parties to the treaty.

The fact that the latter goals are different from the theoretical underpinnings of the reporting system, does not undermine their legitimacy. States do send delegations to engage in a dialogue with the committee in the absence of a report when their states' record is scheduled. States do submit reports when threatened with consideration of their record in the absence of a report. Participation is required to realize the promise of international human rights law. Sound recommendations can serve as vehicles for constructive change through actors at the national level. A perception of equal treatment of states parties encourages those states which do report to continue to take the process seriously.

At the same time, there are disadvantages of considering a state in the absence of a report. These include the practical problem of the treaty body familiarizing itself with the country situation without a report, the inability to engage in a dialogue with the state party in its absence, and the tendency to produce substantively weak or scant concluding observations (which to date have emerged from many of these absentee considerations). Only a well-prepared set of background material, coupled with well-documented, current external information will allow for a solid set of reliable and potentially effective recommendations. Hence, the commitment to prepare adequately must be part of any decision to conduct the consideration of a state in the absence of a report.

RECOMMENDATIONS

Treaty Bodies

States parties which do not report for a specified number of years following ratification, or a specified number of years after the consideration of a previous report, should nevertheless have their record of compliance with the treaty's obligations considered by the treaty bodies. The number of years of non-reporting may vary by treaty body and depend on the body's backlog or the anticipated date of the actual consideration of a report. In any case, the number of years initiating this procedure should not be considerably different from the time between consideration of states parties which do submit reports.

4. Periodicity of Reports

In most cases, the treaties specify the period of time between successive reports. Changes have sometimes been introduced through the committees' rules of procedure. However, despite the language of the treaties and/or the rules of procedure, the practice is often quite different.

The current provisions of the treaties or the treaty bodies' rules of procedure are as follows:

CERD

Article 9.1

States Parties undertake to submit to the Secretary-General of the United Nations for consideration by the Committee, a report on the legislative, judicial, administrative or other measures which they have adopted and which give effect to the provisions of the Convention:

a) within one year after the entry into force of the Convention for the State concerned;

and

b) thereafter every two years and whenever the Committee so requests. The Committee may request further information from the States Parties.

CCPR

Article 40.1

The States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights:

(a) Within one year of the entry into force of the present Covenant for the States Parties concerned;

(b) Thereafter whenever the Committee so requests.

Rule 70A (November 2000)

Where the Committee has specified for priority, under rule 70.4, certain aspects of its concluding observations on a State party's report, it shall establish a procedure to consider replies by the State party on those aspects and to decide what consequent action, including the date set for the next periodic report, as may be appropriate.

CCPR/C/70/INFORMAL/2 (November 2000)

In the last paragraph of the concluding observations, in addition to the determination of the date for the submission of the next report, the Committee may request the State party to report to the Committee within a specified period of time, by way of response to certain specific observations of the Committee, setting out the steps the State party has taken to meet these considerations.

After the lapse of this period of time a group of Committee members will study any such response received from the State party, report to the Committee and suggest:

(i) a new date by which the next report is due, taking into account the assessment it has made with regard to any response of the State party, and

(ii) on which points that report should specifically focus.

Where no response is received, the Committee will confirm the date it has fixed at the end of its concluding observations.

CESCR

Article 17.1

The States Parties to the present Covenant shall furnish their reports in stages, in accordance with a programme to be established by the Economic and Social Council within one year of the entry into force of the present Covenant after consultation with the States Parties and the specialized agencies concerned.

Rule 58.2 rules of procedure

In accordance with article 17 of the Covenant and Council resolution 1988/4, the States parties shall submit their initial reports within two years of the entry into force of the Covenant for the State party concerned and thereafter periodic reports at five-year intervals.

(resolution 1988/4 of the Economic and Social Council)

On 30 November 2001, the Committee resolved that, as a general rule, a State party's next periodic report should be submitted five years after the Committee's consideration of the State's preceding report, but that the Committee may reduce this five-year period on the basis of the following criteria and taking into account all relevant circumstances:

I. the timeliness of the State party's submission of its reports in relation to the implementation of the International Covenant on Economic, Social and Cultural Rights;

II. the quality of all the information, such as reports and replies to lists of issues, submitted by the State party;

III. the quality of the constructive dialogue between the Committee and the State party;

IV. the adequacy of the State party's response to the Committee's Concluding Observations;

V. the State party's actual record, in practice, regarding implementation of the International Covenant on Economic, Social and Cultural Rights in relation to all individuals and groups within its jurisdiction.

CEDAW

Article 18.1

States Parties undertake to submit to the Secretary-General of the United Nations for consideration by the Committee, a report on the legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the present Convention and on the progress made in this respect:

a) Within one year after the entry into force for the State concerned;

b) Thereafter at least every four years and further whenever the Committee so requests.

Rule 49 (3)

The Committee may allow States parties to submit a combined report comprising no more than two overdue reports.

CAT

Article 19.1

The States Parties to the Convention shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of the Convention for the State Party concerned. Thereafter the States Parties shall submit supplementary reports every four years on any new measures taken and such other reports as the Committee may request.

Rule 64.1

The States parties shall submit to the Committee, through the Secretary-General, reports on the measures they have taken to give effect to their undertakings under the Convention, within one year after the entry into force of the Convention for the State party concerned. Thereafter the States parties shall submit supplementary reports every four years on any new measures taken and such other reports as the Committee may request.

CRC

Article 44.1

States Parties undertake to submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made on the enjoyment of these rights:

(a) Within two years after the entry into force of the Convention of the State Party concerned;

(b) Thereafter every five years.

Rule 66.2

States parties shall submit such reports within two years after the entry into force of the Convention of the State Party concerned and thereafter they shall submit subsequent reports every five years and such additional reports or information in the intervening period as the Committee may request.

In practice, all treaty bodies have abandoned the practice of applying uniform reporting deadlines to all states parties. Current practice regarding the due dates of reports is therefore most often at odds with the strict substance of the treaty provisions (or many of the rules of procedure which are usually changed after-the-fact). Uniform application of deadlines was, however, a central tenet of the treaty system. Treaty body decisions to forego these deadlines occurred on an haphazard, reactive basis, with very little consultation or attempt by the treaty bodies to seek a common approach to a similar, and fundamental challenge to the system of state reporting.

For three of the treaty bodies, states which do not report regularly or as anticipated by the treaties, in practice encounter roughly the same deadlines for subsequent reports as do other states. In practice, the overdue record - regardless of size - is eliminated as soon as one report is produced. There is therefore, little incentive to report in a timely manner. This is most evident from the practice of CERD, which was the first treaty body to collapse reports. If all overdue reports to CERD were actually to be submitted and considered (along with the few reports currently awaiting consideration (backlogged reports)), it would take CERD 18.1 years to review them all. But if a single report which was submitted could wipe the slate clean, then it would take, instead, 5.6 years to such submitted reports (along with the backlog). This represents a saving of 12 years of reporting work accomplished by disregarding the treaty's deadlines. The effect is illustrated in the 2000 CERD annual report which reads: "The Committee considered the seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth periodic reports of Lesotho", (for reports due December 1984 - December 1998). In other words, the number of overdue reports has become so large that the treaty bodies have simply ignored the deadlines and kept their fingers crossed about future receipt of reports.

On the other hand, HRC, CESCR and CAT now suggest dates be set for the next report farther into the future for states with good records of compliance (in process and substance) than others. Or they will impose a shorter time period for states with poor reporting records. However, in principle no state, regardless of good faith or a strong, human rights protection record, is entitled to less international scrutiny under the international legal system than any other. Undoubtedly, certain features of the process will vary depending on the quality of the dialogue, the states' willingness to make improvements, and the actual human rights conditions. Variations will appear, for example, in the substance of concluding observations and the design of follow-up strategies. Nevertheless, the underlying principle is that all states have room for improvement and international participation can positively enhance the process of advancement in all states. This principle has now been directly challenged, for example, by the new practice of the Human Rights Committee, which aims to grant considerably longer deadlines to states having a superior record of compliance with treaty obligations. Such a practice raises concerns that these states will diminish their interaction or engagement with the treaty body.

Not only could the committees not cope with the number of reports due in theory if they were to be submitted, four of six cannot cope in a timely manner with the reports that are in fact submitted. The backlog is now approximately two years for HRC, CESCR, CEDAW and CAT, and is getting worse. While improvements occur immediately following the periodic addition of more meeting time, the gains tend to be temporary. The extent of the backlog seriously undermines the effective functioning of the treaty system. Where considerable efforts have been made to report, states parties resent the treaty bodies' inability to indicate an early interest in the results. The burden to states is also increased by the necessity of updated reports at the time of the dialogue. The incentive to follow deadlines of the treaty bodies in the future is clearly diminished.

The challenge therefore is to institute a system of reporting in the face of a significant backlog and an overwhelming number of overdue reports which:

• does not reward flagrant disregard of treaty obligations

• does not overcompensate compliance with reporting or substantive requirements, and

• is practical.

RECOMMENDATIONS

Treaty Bodies

Treaty bodies should insist on regular reporting deadlines consistent with the spirit of engagement undertaken by states parties in each of the treaties.

Failure to produce a report on schedule should result in a consideration of the state's compliance with treaty obligations in the absence of a report.

The reports due for each state to all treaty bodies should be consolidated into a single report. (See infra section 5. Focussed and Consolidated Reporting)

A timetable should be delineated for the periodic production of consolidated reports, and its introduction coordinated among the treaty bodies.

Treaty Bodies and OHCHR

On an experimental basis, OHCHR should deliberately organize and schedule overlapping meeting times for treaty bodies, at the same time in the same venue.

The treaty bodies should be provided with the opportunity to take advantage of overlapping, for instance, by scheduling one state before more than one treaty body during overlapping meeting times.

Note:

(1) Consolidated reporting varies the strict reporting schedule in the treaties themselves, and it might be argued would require an amendment to CERD, CEDAW, CAT and CRC, and an ECOSOC resolution for CESCR. However, the variation from the treaty commitments currently in practice has been instituted in the absence of formal amendment or resolution and has not been the subject of objection by states parties.

(2) This recommendation must be coordinated with the consideration of reports, since there is little point submitting a single report which is taken up by different treaty bodies over an extended period of time - thereby requiring significant and multiple updates at the times of consideration.

(3) The effectiveness of this recommendation is closely related to a timely consideration of reports, and this in turn raises the issue of a greater degree of consolidation. (See infra section 35. Amendment)

5. Focussed and Consolidated Reporting

The extent of the reporting burden currently on states parties is significant:

• Over the past ten years since the last major treaty body (CRC) came into operation, states parties have produced reports on average every 1.1 years, and had reports considered every 1.2 years.

• For states generally meeting their reporting obligations, over the past ten years they have had as many as four reports considered in one year.

In addition, there is repetition. Many of the rights in one treaty overlap with provisions in other treaties. There are many crosscutting themes such as discrimination, education, and inhuman or degrading treatment or punishment. Consequently, states parties discuss similar questions and concerns with different treaty bodies.

For these reasons, and others, it is increasingly argued that individual treaty bodies should focus their reporting requirements on a subset of issues under their respective treaties. Here focussing means a subset of issues tailored to the committee's concerns with respect to a particular state. How is this subset of issues to be identified? Suggestions include limiting subsequent reports to the matters raised in the prior concluding observations of a treaty body, and eliminating issues which have already been dealt with (in a recent period) by another treaty body.

At the moment, four of the six treaty bodies produce a list of issues which is intended to focus the dialogue with the state party. Having received a comprehensive report, or in the case of periodic reports, a report on the changes and events since the report was last considered, the dialogue itself can be focussed. The focussing is based on: (a) the committee's preliminary assessment of the report, (b) a wide range of information gathered by the UN and through the OHCHR secretariat, and (c) NGO information.

Is focussed reporting a suitable way of further reducing the reporting obligations of states parties? The answer is positive if by focussing is meant limiting periodic reports to updates of developments since the last report. There is clearly no need to repeat information previously provided concerning laws, policies, practices, and actual conditions which remain the same as previous reports. The answer is also yes, if by focussing is meant an assessment, at the time the report is submitted, of the most important issues affecting a country in light of all current information available (through a combination of a list of issues, written responses, and a pointed and disciplined inquiry during the dialogue itself). This is more properly described as a focussed dialogue, rather than focussed reporting.

However, focussing is more often suggested as the identification of a subset of issues to be addressed in a future report. In this case a number of factors militate against such a proposal. (1) There are a significant number of occasions when treaty bodies do not have a sufficient depth of knowledge of a country situation to be able to accurately identify a small number of issues of primary importance to a state's treaty obligations. (2) Any attempt to identify accurately such issues for the subsequent report will be impeded by the large number of years between the consideration of reports. (3) The treaty bodies have found difficulty in narrowing definitively the list of issues which should be directed to a state party without considering NGO submissions, input which is largely associated with the dialogue itself. (4) The treaty bodies have not exhibited an ability to confine themselves even to the list of issues identified usually within 3-4 months preceding the dialogue. In other words, relieving the reporting burden by limiting the scope of future reports without diminishing the quality of the reporting system depends on a number of conditions that are currently not present. These conditions are: (a) substantially improved knowledge and depth of understanding of country situations, (b) the facility to monitor ongoing developments, (c) NGO submissions input earlier into the process, (d) reporting time frames closely followed. When these conditions apply, future focussed reporting will be consistent with responsible monitoring.

At the same time, duplication of reporting obligations for overlapping themes and provisions is clearly a waste of resources. Rather than focussed reports, this could be avoided by consolidation of reports through a thematic approach to reporting. Thematic reports can respond to a number of concerns:

(1) Many of the substantive rights are repeated in more than one treaty. The CRC itself groups rights in the Convention under substantive themes. The Human Rights Committee often groups rights on a thematic basis in the Lists of Issues posed to states parties. This approach could be expanded to cover more than one treaty, by identifying crosscutting themes and overlap across the treaty system. For example:

ADEQUATE OR DECENT STANDARD OF LIVING

GENERAL

Article 7(a)(ii), ICESCR

Article 11.1, ICESCR

Article 14.2(h), CEDAW

Article 27, CRC

FOOD, CLOTHING, SHELTER

Article 5(e)(iii), CERD

Article 11, ICESCR

Article 12, CEDAW

Article 14.2(h), CEDAW

Articles 24.2(c) and (e), CRC

Article 27.3, CRC

FREEDOM OF ASSOCIATION

GENERAL

Article 4(b), CERD

Article 5(d)(ix), CERD

Article 22, ICCPR

Article 14.2(e), CEDAW

Article 15, CRC

TRADE UNIONS

Article 5(e)(ii), CERD

Article 22, ICCPR

Article 8, ICESCR

Crosscutting issues could be further clustered into related themes already identified by some of the treaty bodies in their lists of issues or concluding observations. A list of themes suggested by the text of the treaties and the language of general comments and concluding observations, (which includes all articles of all of the treaties), can be found in Annex 3.

(2) A greater comprehension of the nature, meaning and application of rights can be gained by considering all the treaty rights (and their elaboration by the treaty bodies through general comments, individual cases or inquiries, and concluding observations) on a thematic basis.

(3) At the national level there is frequently a lack of symmetry between the compartmentalization of the six treaties and the domestic agencies responsible for the substantive areas covered in the treaties. Reporting and follow-up is inhibited by the fact that the organizational structure of government branches often does not correspond to the organization of the treaties. Facilitating a holistic and rights-based approach to a broad range of thematic issues will assist states to implement the treaties at the national level.

(4) Differences of scope of similar thematic rights as between the treaties (like torture in CAT and CCPR) can be noted, and the application of standards by the treaty bodies to states parties in concrete circumstances can take those differences into account.

(5) Those states which have not ratified all six of the treaties would still be able to produce reports on the themes and provisions in relation to the treaties which they have ratified.

(6) Follow-up information on the steps taken to implement prior concluding observations should be included and highlighted in any report as a matter of course.

RECOMMENDATIONS

Treaty Bodies

The states parties should be requested to submit one consolidated report applicable to all treaties which they have ratified, and which has been organized on a thematic basis.

The treaty bodies should prepare consolidated guidelines for the preparation of a single report, organized on a thematic basis and clearly identifying overlapping provisions of the treaties (in addition to those which remain unique). (See Thematic List and Index of Treaty Rights and Freedoms, Annex (3))

OHCHR

OHCHR should assist the treaty bodies by identifying overlapping substantive themes among the treaties.

A model report based on a thematic clustering of treaty articles should be prepared for interested states parties, who could be encouraged to prepare such a report as a single submission to all treaty bodies.

Note:

Consolidated reporting should be coordinated with the consideration of reports. (See supra section 4. Periodicity of Reports and infra section 35. Amendment)

6. Inadequate Reports

The burden of state reporting alone, however, does not explain either the extent of overdue reports and in particular initial reports, or the poor quality of many reports.

In theory, state reports are intended to be a candid self-evaluation of the degree of a state's compliance with its treaty obligations in a public, international setting, in order to initiate a process of constructive criticism with treaty bodies. The theory strains credulity, particularly for non-democratic states. In fact, state reports in recent years have often taken some of the following forms:

(a) a mere recitation of the provisions of the constitution or other legislation

(b) three or four page reports

(b) the inclusion of claims such as:

• "There is no problem of minorities...the population being fully integrated socially."

• "The State of Emergency Act, which was promulgated in...22 December 1962...and which is currently in force [19 January 2000]...is an exceptional constitutional regime..."

• "The phenomenon of racial discrimination is unknown in our history and totally alien to our society in which any behaviour or act manifesting or implying racism is regarded as highly reprehensible...The absence of the phenomenon of racial discrimination in the history of our society explains why the...legislature has not promulgated any laws, decrees or judicial or other directives concerning this phenomenon."

• "...legislation is based on the principle that persecuted persons and freedom fighters may not be extradited."

• "Article 11. Employment: From childhood, young...girls are trained to undertake work in and around the house....Article 16. [Upon divorce] where the husband and wife stand in the relation of supporter and dependent, the supporter gets two thirds and the dependent one third of their joint property."

• "[T]here are no existing practices based on the idea of the inferiority or superiority of either of the sexes. Instead, [the state] continues to be governed by customs and traditions where the man is the head of the family and where men have one role and women another...Moreover, there are certain acts which, being within the domain of men, are unacceptable for women to carry out...With respect to a profession or occupation, [our religion] permits women to pursue any respectable profession, provided her husband agrees, and that it does not interfere with the performance of her duties as a mother and mistress of the home."

These are not isolated phenomena. Such reports, considered within the last two years, highlight a number of features of the state reporting system as a monitoring regime:

• the gulf in understanding (let alone implementing) international human rights standards has yet to be bridged,

• the importance of alternative sources of information prior to a report's consideration, and

• accountability beyond the confines of treaty body meeting rooms is an essential condition for success.

Four of the six treaty bodies allow the secretariat, usually in consultation with a member(s) of the treaty body, to work with states parties and encourage revision of reports which do not meet reporting guidelines to a significant extent. The experience has sometimes been the re-submission of a much-improved report.

RECOMMENDATIONS

Treaty Bodies and OHCHR

Treaty bodies should encourage the OHCHR secretariat to identify incoming reports which may be wholly unsatisfactory in their failure to follow reporting guidelines (in length, form, or absence of statistics), and to permit them to suggest informally to the states parties ways and means to resubmit an improved report prior to consideration.

7. Special Reports

Requests for special reports on what are called urgent matters are routine only for CERD. CESCR periodically has made exceptional requests, although it fails to identify them as such. It has made requests for the specific inclusion of newly-identified information in a forthcoming report. It has selected states with reports overdue by comparatively much smaller margins than others, and requested of them the prompt submission of a report. Special reports have very rarely been requested by the Human Rights Committee, CAT, and CEDAW. Only CRC has never requested a special report.

This exceptional role for the treaty bodies has had different labels: "early warning", "urgent action", "prevention". The scope of this "preventive" function has not been clarified, although it has received some limited endorsement by the General Assembly. It has been linked by CERD to actions of the Security Council and representations by CERD to the Security Council.

The wisdom of requesting special reports has to be directly questioned. The requests come in the context of a massive number of overdue reports - and hence a large number of states which have rarely, if ever, been considered. It is also at odds with a significant backlog of reports waiting to be considered in the case of four of the committees. Urgent human rights matters are taken up by a wide range of UN actors and the involvement of the treaty bodies does not significantly add to visibility. The strength of the treaty system is its equal application to all ratifying parties, or the regular consideration of human rights conditions in every ratifying state. Deviations from this

intent invite a double-standard. This is particularly true in light of the weakly-defined criteria for making such requests in the case of most of the committees, and the indications that such decisions have been made in a non-transparent manner, and on the basis of personal or political proclivities, or selective media interest.

RECOMMENDATION

Treaty Bodies

Treaty bodies should not engage in the practice of requesting special or exceptional reports.

8. Order of Considering Reports

Two of the committees do not consider reports in the order in which they are received. CEDAW believes that geographic considerations should influence when reports are considered and CESCR has varied the order on the basis of information received from others, such as NGOs. Three other committees engage in some limited reordering of reports from the order of receipt. Only CRC systematically considers reports in the order they are received, in the sense that reports are not moved forward for any reason. (However, the committee considers some initial reports and some periodic reports at each session, and only retains chronological order within these categories.) The fundamental principle of equal treatment of states parties, minimizing any perception of bias, would suggest that the treaty bodies should follow a strict chronological order of taking up state party reports. That rule would also provide clear notice to states parties and all other interested actors of the consideration of reports, and allow for adequate planning in accordance with a fixed timetable.

Until very recently, CEDAW has regularly permitted states to refuse to engage in a dialogue with the committee on the basis of reports already submitted. Some state reports have not been considered for considerable periods of time as a result. In the case of some of the other committees there have been a persistent number of states which, having submitted a report, have refused to attend the dialogue very close to the scheduled date. This has resulted in significant disruption of the committees' time. Reasons for states pulling out include changes of government and objections to the submitted report, as well as other commitments (of varying degrees of importance) of the relevant government department. Three of the committees will shortly be taking up reports regardless of whether a state chooses to attend the dialogue. The benefits of a fixed and foreseeable timetable of the consideration of reports would require that the treaty bodies routinely take up reports as scheduled, regardless of state party requests for postponement for whatever reason.

RECOMMENDATIONS

Treaty Bodies

Treaty bodies should take up state party reports in the order in which they are received.

Treaty bodies should take up reports as scheduled when states parties refuse to attend the consideration of their reports.

9. The Timing of the Consideration of Individual Communications

The Human Rights Committee, which has the greatest number of individual communications, does not consider cases in the order in which they are received, nor the order in which they are ready for decision. There is no rule for expediting cases, and hence no way of applying for such consideration, or of knowing whether it has been used in the case of others in such a way as to affect the timing of the consideration of an author's own case. Unofficially, priority is given to death row cases, cases in which interim measures have been requested (that is, where a state has been asked prior to a committee decision to cease an action which could give rise to irreparable harm), cases submitted from persons in detention, or by older persons.

The Committee receives cases alleging very different forms of violations of the Covenant, particularly since cases come from both well-established democracies and non-democracies. For example, the former often involve various kinds of discrimination in many different contexts, and the latter often involve violations of personal liberty and security issues. The Committee should ensure that the cases of victims from all states are treated with equal concern. This is especially important because of the (largely untapped) preventive, educational and catalytic value of decisions relating to countries with a vocal and independent media. These decisions often have a spillover effect for a much broader range of affected persons than the individual complainant.

The concern for a timely consideration of all cases relates to the problems of delay experienced in the committee's handling of communications. The average time between the initial submission and the determination of final views for the Human Rights Committee is four years. The average time between initial submission and a decision that a case is inadmissible is 2.5 years. There are numerous reasons for delays. These include some which are not resource-dependent, such as:

• Procedural rules indicating time limits for submissions are often not met by governments (and occasionally authors).

• Time limits on states parties are not strictly imposed.

• States parties commonly request extensions of time limits.

• Authors are normally not informed of these requests for extensions, and hence have no opportunity to object.

• States parties requests for extensions are usually granted.

• Efforts by states parties to avoid determination of the merits by repeated submissions which fail to contain significant new information are tolerated by the committee, giving rise to further delays.

RECOMMENDATIONS

Treaty Bodies

The Committee should introduce a rule of procedure which requires it to deal with applications in the order in which they become ready for examination. Decisions to give priority to a particular application should be made on an exceptional basis.

Delays resulting from state party efforts to avoid prompt consideration of a case (including unjustified requests for time extensions, for separating the consideration of admissibility from the merits, repetitive submissions) should not be tolerated by committee practices. The author should be kept fully informed of all state party communications with the committee, including all efforts to delay the prompt consideration of a case.

Time limits should be more rigorously enforced. A clear timetable should be articulated for reminders for different stages of the proceedings. Consequences should be identified for failures, by either the state party or complainant, to adhere to time limits. Reminders should be sent as required. The treaty bodies should regularly be kept up-to-date on the timetable and status of each case - incorporating a "consequence/bring forward" methodology.

10. Considering Individual Communications

CAT does not have a significant backlog of state reports, and in that context spends about 20% of its time considering communications. In the 2000 annual report year, it took decisions in 25 cases (inadmissibility, discontinued, admissibility, final views). Cases (both for inadmissibility and final views) are decided in less than two years, and the time spent with respect to final views, that is, a determination on the merits, has not increased over time. Thirty-nine cases were outstanding as of May 2000. Fifty-six percent of states parties permitting complaints to CAT have never been the subject of a single complaint.

Few cases are submitted to CERD, which spends less than 10% of its time on communications.

On the other hand, the Human Rights Committee has a backlog of state reports awaiting consideration of two years, and in that context spends 30-35% of its meeting time on the consideration of communications. In the 2000 annual report year, it took decisions in 41 cases (decisions on inadmissibility, discontinued, admissibility, final views). On average, inadmissibility decisions are taken in two and a half years, and final views take four years. As of April 2000, 177 cases were pending ((127 not transmitted to the government for comments, 16 transmitted to the government for response on admissibility and/or merits), and 34 ready for decision by the Committee (on admissibility and/or merits)). Thirty-two percent of states parties permitting complaints have never been the subject of single complaint.

There will be additional cases added to the workload of the Human Rights Committee which have not been processed either because they were submitted in a language which until recently the secretariat had no capacity to read (particularly Russian), or which are backlogged due to the volume of incoming correspondence. Estimates of unprocessed mail are currently around 3,000, of which it is estimated that on average 10% will become registered cases. At the moment, the committee registers about 60 cases per year, an average which has not substantially varied in the past five years.

At the same time, these figures are very likely to increase. There are approximately 1.4 billion people in the 98 states which have ratified the Optional Protocol. There are 30 states (32% of states parties) which have ratified the Protocol but not been the subject of a single complaint. As indicated, the total caseload is 60 registered cases a year, 177 pending cases, and perhaps an additional 300 cases (from 10% of the 3,000 correspondence backlog). There is some speculation that after the backlog has been cleared, staff will be better able to engage in more detailed correspondence with authors which might assist in the development of more cases. In this scenario, 250-300 new cases a year might be registered (based on the rate of 1,700 - 2,000 new letters annually and a 15% likelihood of a letter revealing a case for registration). Even on this scenario, however, the numbers indicate that the Covenant mechanism has not yet become a viable option for the vast majority of potential victims, and handles at the moment a tiny fraction of the possible load.

Suggestions for ensuring expeditious treatment of individual cases include the introduction of procedures which would permit the Committee to deal with all dimensions of individual cases in working groups or chambers. These would be subset(s) of the Committee which could work simultaneously with other working groups or chambers, or the Committee as a whole. Objections to this procedure include:

(a) the working group or chamber could not finally decide the merits of cases because the Protocol and Covenant speak of the views of the Committee and indicate a quorum of 12 members,

(b) the working group or chamber will be unrepresentative of legal regimes and regional experiences,

(d) legal expertise and geographic representativeness may not coincide,

(e) all individual Committee members will be unable to make their opinions heard in every case.

In response, the working group or chamber could propose final decisions which could be formally adopted by the Committee as a whole with little or no discussion in most circumstances. Conditions of increased involvement of the Committee in reviewing outcomes from the working group or chamber could be specified. It seems clear that two or three working groups or chambers considering the merits of cases, whose decisions are normally undisturbed by the plenary, would process cases more expeditiously than at present. In fact, at the moment 90% of the recommendations of the working group on the merits of communications are accepted by the plenary (albeit after lengthy discussions).

Furthermore, the assumption that all committee members must have the same voice in every case inhibits effective decision-making and tends to have a negative effect on substantive outcomes. It encourages an unnecessary and unhelpful multiplicity of individual opinions. It also frequently leaves very thin reasoning on the merits of the case, as members often agree on very little except the outcome.

None of these suggestions, however, deal with the fundamental and inevitable inability of a single, part-time treaty body to deal expeditiously with the range of tasks demanded. It is unrealistic to expect that such a body can both handle individual cases in a timely manner from a broad range of states, with an even wider range of problems, and at the same time consider state reports in a timely manner, as well as states in the absence of reports. For longer-term solutions see final section 35 of the Report on Amendment.

In terms of the organization of the OHCHR secretariat in a manner which handles communications most efficiently, the recent creation of a "Petitions Team" is a positive development. There is substantive overlap in the kinds of cases which can go to CAT or to CERD with the jurisdiction of the Human Rights Committee, (as well as overlap in the procedures and expertise required of staff members). Similarly, there is overlap on a substantive level between CEDAW and the jurisdiction of the Human Rights Committee (particularly CCPR Articles 3 and 26). Individuals themselves are frequently unfamiliar with all of the potential fora. The separation of the secretariat handling CEDAW cases from those handling Human Rights Committee, CAT and CERD cases reduces the ability to stream cases efficiently and appropriately, avoid inconsistent jurisprudential developments, and maximize the benefits of procedural experience on a daily basis.

RECOMMENDATIONS

Treaty Bodies

The Human Rights Committee should designate two to three working groups or chambers, taking into account legal skills and geographic considerations. These groups should meet simultaneously and be able to deal with all aspects of communications. Working groups should be enabled and encouraged to make recommendations to the Committee on all matters, including final views. The Committee should normally adopt those recommendations, without discussion, except in narrowly-defined circumstances.

The basis of the Committee Views should be transparent and well-reasoned. Decisions should contribute to the understanding and development of international law and enable domestic courts to invoke and apply international treaty obligations.

OHCHR

The secretariat of CEDAW dealing with individual communications should be merged with the Petitions Team at OHCHR.

The secretariat should assist in the development of Committee jurisprudence by providing, upon request, analytical assistance in the form of substantive and comparative research concerning treaty rights.

11. Working Groups

All the treaty bodies except CAT and CERD have pre-sessional working groups, which adopt the list of issues for state reports. These groups have a range of other tasks including: preparing drafts of general comments, handling preliminary stages of the communication procedure (such as admissibility, interim measures), reviewing additional information submitted between reports, and considering procedural (working methods) reforms. Drafting the list of issues has meant that the working group has become an important context for NGO, UN agency/organ, and OHCHR (usually the desk officer), input into the work of the treaty bodies. The extent of the exchange at the working group level varies among committees. As the time pressures have increased, working groups have been given greater responsibilities, such as the final adoption of lists of issues. In-session working groups have also functioned to perform important committee responsibilities. This is particularly important in the case of CEDAW where, in the past, simultaneous (in-session) working groups dealt with working methods and general comments.

Therefore, over time the treaty bodies have increasingly delegated responsibilities to smaller numbers of members and accommodated concerns about exclusivity or expertise by one or more of the following techniques: (a) making membership voluntary and open-ended, (b) requiring geographic representation from regional groups (CESCR, CEDAW), and (c) varying the degree of finality of decisions taken.

At the same time, the following difficulties have been expressed or associated with working groups. Some treaty body members are wary of the authority of working groups and retain a concern that the input of individual members will be curtailed if they do not participate. Participation in working groups requires a substantial further time commitment from members, up to three additional weeks per year. Those external partners wishing to interact with the treaty body often worry that limited authority and limited participation in the working group means that external input is still best provided at the plenary stage. CAT and CERD have so far resisted the creation of working groups on the view, among other things, that the narrower range of issues covered by CAT, and the frequency of the reporting period in the case of CERD, reduces the necessity of a list of issues.

On the other hand, there are frustrations that recommendations from working groups do not carry a greater degree of finality in a number of circumstances, for example on the lists of issues - which may serve in practice only as a rough guideline for the committee-state party dialogue. Participation is voluntary and a failure to participate in its substantive operation is therefore an individual committee member decision. UN agencies/organs complain that exchange of information to CAT and CERD members is inhibited by the lack of a working group or regular forum for closed and focussed exchanges.

RECOMMENDATION

Treaty Bodies

Efficient management of the treaty bodies' time suggests that all treaty bodies should create working groups, charged with a broad range of responsibilities: identifying lists of issues, considering additional information supplied between reporting schedules, a potentially enhanced follow-up role, consideration of working methods, and consideration of draft general comments. Given the current nature of the job of treaty body member (part-time, largely unremunerated, 5-9 in-session weeks annually), participation should be voluntary. Nevertheless, efficiency requires that a significant degree of deference be paid to decisions emanating from the working group on whatever it addresses.

OHCHR

A background paper should be drafted concerning information on the operation of chambers and their potential uses in other international or regional human rights bodies or courts, and provided to the treaty bodies for consideration.

12. The Special Rapporteur on New Communications

The Special Rapporteur on New Communications was a position created by the Human Rights Committee in 1989 to assist the secretariat and the Committee in dealing with cases at preliminary stages. Large amounts of correspondence sent to the Committee clearly fail to meet the minimal criteria of admissibility under the Covenant. The Committee does not register all complaints. Instead, the secretariat, with the assistance of the Special Rapporteur, plays a filtering role.

Some cases contain insufficient information by which to determine their relevance to the Committee's work. In about half the number of cases which are eventually registered, the secretariat writes to authors prior to registration to request various kinds of clarification. In 25% of correspondence the object of the communication is unclear (Rule of Procedure 80(c)); in 50% of the correspondence the article of the Covenant alleged to be violated is unclear (Rule 80(d)); 50% are unclear about the facts of the claim (Rule 80(e); and 75% say nothing about domestic remedies (Rule 80(f)). Hence, the secretariat must frequently request further information before the decision on whether to register is made.

The pre-registration phase can be resource intensive since it includes:

• reading all of the correspondence,

• making a preliminary assessment as to its relevance to the Protocol and the Covenant rights,

• assessing whether further information is required from the author of the submission in order to determine admissibility or the merits,

• writing the author in order to request specific information (where necessary),

• writing the author to indicate that no action will be taken where the case clearly does not satisfy admissibility requirements (for example, does not relate to a state party to the Covenant), and

• assisting in the preparation of a file through suggestions for further information, in a limited number of ill-prepared cases revealing serious and important issues.

The ability of the secretariat to filter efficiently where warranted, but assist in preparation where necessary, will depend on a number of factors, including: time, linguistic ability, and familiarity with the national legal system. In the context of the European Convention on Human Rights, at least one member of the secretariat is familiar with the principal language and legal system of every state party. In the OHCHR, however, the only Russian-speaking employee involved in the Petitions Team is on a short-term contract, and there is no Arabic-speaker. Cases are only permitted to be submitted in the three working languages of the Committee (not the six official languages of the UN). Cases in Russian are now handled in the initial stages by the Russian staff member and sent to translation only when ready to be dealt with by the Committee. Colleagues from other departments are asked to read any incoming Arabic correspondence on an ad-hoc basis. (There are very few such cases, although 44 million individuals live in states which have ratified the Protocol and have Arabic as the official language). The handful of staff can in no way have the breadth of familiarity with the legal systems of the states from which communications arise.

Even the preliminary filtering role of the secretariat, in conjunction with the Special Rapporteur, is therefore significantly impeded by the lack of resources and expertise to read incoming correspondence and make a timely assessment of the degree to which the facts indicate the satisfaction of conditions of admissibility.

The recent steps to introduce a central registry for communications are intended to include the ability to track all incoming correspondence directed to the treaty bodies. This should permit the Petitions Team to know how many provisional files are opened and to ensure a response is made (including through relevant form letters where applicable) to all those who submit letters of complaint.

Cases will not be registered which manifestly do not meet the admissibility criteria set out in the Protocol, and elaborated in the Rules of Procedure. The most often used ground of inadmissibility is Article 2 of the Protocol which states that communications must "claim that...their rights enumerated in the Covenant have been violated". The Rules of Procedure interpret this to mean that an individual must claim "in a manner sufficiently substantiated, to be a victim of a violation...of the rights set forth in the Covenant." In other words, a case must sufficiently substantiate that a right has been violated for the purposes of admissibility. In practice this criterion serves a similar function to the "manifestly ill-founded" criteria of the European Convention on Human Rights system.

A decision of the Special Rapporteur not to register a case is not final in the sense that an author of a communication may insist that their case be registered and the Special Rapporteur will not refuse. In these circumstances, following registration the Special Rapporteur will usually send the case directly to the Committee with a recommendation that the case be declared inadmissible. Although the Rapporteur's decision not to register a case is not final if contested, many cases are filtered out this way without being dealt with substantively by the Committee as a whole. A detailed description of the functions of the Rapporteur, however, is not found in the Committee's Rules of Procedure.

Since 1995, one of the other functions of the Special Rapporteur is to request states parties to take interim measures where they are warranted under Rule 86 of the Rules of Procedure. Interim measures may be ordered to avoid irreparable damage to the victim of the alleged violation. While the Annual Report now states the number of occasions in which the Special Rapporteur has made interim measure requests, it does not state how many of these requests have been honoured (although the success rate is reportedly more than 90%).

RECOMMENDATIONS

Treaty Bodies

The functions of the Special Rapporteur on New Communications should be enunciated in the Committee's Rules of Procedure.

More precise information on the application of the interim measures procedure should be publicly provided by all committees using such a procedure, including the specific cases in which it has been used (at the time it is invoked), and the responses of states parties to requests.

OHCHR

The secretariat must have sufficient human resources to be able to engage efficiently in the preparatory work required for the proper functioning of the Special Rapporteur and the Working Group on Communications, and ultimately the Committee. In particular, the Petitions Team should include many more lawyers familiar with a wide range of legal systems and languages.

The numbers of provisional files opened should be recorded and made public.

A manual for prospective users of the petition system should be prepared which explains the process and how to make an effective case based on the experience of the secretariat over the past two decades. The issue of forum-shopping among the treaty bodies, and detailed information concerning the application of the interim measures provision, including practical advice, should be included.

Cooperative relationships with appropriate legal assistance services or programmes at the national or international level should be developed to assist lawyers and provide information and assistance concerning the filing of complaints. This could include offers by OHCHR staff to attend or give nationally-based seminars to legal aid clinics, bar admission courses, professional development courses for lawyers, and judicial training.

13. The Special Rapporteur on Follow-up to Individual Communications

The mandate of the Special Rapporteur on Follow-up to Individual Communications was created in 1990. The purpose was to ensure that the Human Rights Committee properly focussed on the issue of follow-up, particularly in light of the poor record of compliance with the Committee's views. As of July 2000, states parties have submitted satisfactory follow-up replies to the Committee's views in only 21% of cases disclosing a violation of the Covenant.

After the Committee has made a finding on the merits of a violation of a provision of the Covenant, it asks the state party to take appropriate steps to remedy the violation. The recommended remedy may be more or less specific. But in recommending a remedy, the Committee routinely indicates to states parties:

Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee's Views.

In other words, Article 2 of the Covenant legally binds ratifying states to provide an effective remedy for those whose Covenant rights have been violated, and for 25 years the Committee has exercised its competence and responsibility under the Optional Protocol to determine whether there has been a violation. Therefore, although the Optional Protocol refers to the Committee's decisions as "Views", refusal to implement those Views is clearly incompatible with the spirit and purpose of the Protocol.

Of 354 final views adopted over the history of the Optional Protocol, three-quarters have revealed a violation of the Covenant. A significant proportion of registered cases come from a limited number of countries. Of the 98 states currently participating in the Optional Protocol, 35% of all concluded cases have come from five states (Canada, Uruguay, Netherlands, France and Australia - the Uruguayan cases relating to previous historical events). The sentiment is therefore expressed that some states are unfairly targeted. This is not borne out by an examination of the outcomes, either for admissibility or final views. What is disturbing is that the reasonable and foreseeable consequences of ratification are used to excuse noncompliance.

As indicated, the Committee's insistence that a remedy be forthcoming in response to a finding of a violation has been respected in only 21% of cases. In the context of this extremely poor record of compliance, the Committee has performed the task of follow-up with minimal transparency and effort. In theory, the Committee's rules of procedure specifically require that information furnished by the parties within the framework of follow-up, and decisions of the Committee relating to follow-up activities, are "not subject to confidentiality" (unless the Committee takes a special decision to the contrary). (Rule 97) The practice is quite different. With respect to the Committee's annual report section on follow-up:

• the summary list of cases (in respect of which follow-up has been requested) does not state whether a reply from a state party in a specific case is, or is not, satisfactory; it indicates only whether a reply has been received; this is despite the fact that the Committee categorizes 70% of the replies as unsatisfactory

• in many cases the replies of states parties are unpublished

• all meetings held with a state party in the context of follow-up are private

• the results of such meetings, or any comments of the Special Rapporteur or the Committee on whether they are satisfactory, are not reported in substance to the public or to the author (follow-up is not on the agenda of Committee sessions and not reported in press releases)

• the practice of the current Special Rapporteur is to report in detail to the Committee on follow-up meetings that have been conducted with states parties only once a year (at the March session - which may be many months after they took place

• where the annual report provides summaries of meetings with states parties, or of follow-up replies received, it only summarizes the responses of states; it takes no note, and provides no summary, of follow-up information received from authors

• a detailed follow-up paper prepared annually for the Committee is not made into a UN document and published, or put on the OHCHR website

• with respect to the only follow-up mission undertaken to date (to Jamaica) the report on the mission was not publicly released

• the three follow-up missions the Committee seeks for 2001 (Colombia, Suriname, Trinidad & Tobago) include no states from the Western European and Other Regional Group, although these states account for the largest number of complaints for current states parties (Canada (96), Uruguay (79), Netherlands (67), France (50), Australia (34) - with the Uruguayan cases emanating from very dated circumstances now overridden by historical events))

• at the moment the only public discussion with a state party on follow-up of an individual case consists of questions to be asked in the next discussion of the state's report, which is likely a considerable number of years after the decision (since the Committee on average currently deals with state reports from the same state in 7-year intervals ).

There are some suggestions that the Committee's poor record on follow-up is a result of the absence of a reference to follow-up in the Covenant. This would be in contrast to Article 7 of the Optional Protocol to CEDAW. However, the Committee has not had any legal difficulties instituting visits to states parties as part of follow-up to its responsibilities to deal with communications under the Optional Protocol. Increased vigilance with respect to follow-up in other ways should not be of greater concern. Moreover, just as Article 7 of the CEDAW Protocol ties some follow-up activities back to reporting obligations under the Convention, if necessary, follow-up activities of the Human Rights Committee could be related to Article 40 reporting obligations under the Covenant.

RECOMMENDATIONS

Treaty Bodies

Follow-up to communications should not be a minor, isolated concern of a single member of the Committee with little connection to, or attention of, the Committee as a whole.

Follow-up should be routinely on the agenda (and the published provisional agenda) at every meeting.

Follow-up business should be conducted in public meetings.

Follow-up procedures for individual communications should be established governing the process after every communication in which a violation is found. The process should incrementally increase the committee's level of engagement with a particular state with respect to follow-up as time goes on, for example:

• a letter of reminder at the end of the 90-day period

• further reminders at regular intervals

• a meeting of the Special Rapporteur with a state party representative

• public reporting by the Rapporteur of the substance of the meeting and any state party undertaking

• public reporting of any information on follow-up from the author

• a clearly stated Committee position on the satisfactory nature of the state party's response to the communication

• a public meeting of the committee with the state party on follow-up (for example one or two meetings a session should be set aside to publicly discuss follow-up for 30 minutes with a series of states parties, without the necessity of a written report)

• a further view or clearly stated Committee position on the satisfactory nature of the state party's oral response to the communication

• a visit to the state party on follow-up

• the public release of the mission report on the visit.

Follow-up to individual communications should be introduced and applied to the work of CAT and CERD (and eventually CEDAW) on communications, including the appointment of a Special Rapporteur on Follow-Up to Individual Communications, and the regular production of a document on follow-up to communications.

A transparent and detailed follow-up practice should be developed with respect to the application of CEDAW's general follow-up Rule of Procedure 18.

States Parties

States parties have ratified the Optional Protocol in bad faith when refusing to provide a remedy by calling into question the Committee's authority. This behaviour on the part of states undermines the legitimacy of the international protection of human rights and the treaty monitoring process which seeks to make it meaningful. There is no excuse for the lack of state support for the Committee's authority as a response to individuals exercising their treaty rights, and the poor example of those states with democratic institutions in this regard is particularly regrettable. States should honour their obligations to provide an effective and enforceable remedy for victims of violations of the treaty's rights.

14. Country Rapporteurs

The system of country rapporteurs is another method for delegating responsibility within the treaty bodies that has increased efficiency. The difficulties have been that in some committees certain members refuse to take such responsibility. This is most conspicuous, for example, with CERD where some members refuse to be country rapporteurs. At the same time, the range of abilities and expertise of committee members has made the work produced by some country rapporteurs much poorer than others (to such an extent that observers and participants prefer that some members not take the responsibility of country rapporteur). Since country rapporteurs are responsible for first drafts of concluding observations, this variable aptitude is publicly noticeable in the mixed quality of concluding observations adopted.

Some committees rely to a much lesser extent on research of the OHCHR secretariat on country situations. In these committees, the quality of the committee's work is more dependent on the personal research skills, industry and availability of individuals, in particular country rapporteurs, outside the sessions. This again gives rise to mixed results in terms of the quality of the rapporteur's contribution to the committee's work. The part-time and largely unremunerated nature of committee membership has a negative impact in the treaty bodies' performance in this context.

The committees have a very mixed practice with respect to public knowledge of the identity of the country rapporteur, or public knowledge of the address of the country rapporteur. In the case of CEDAW and the Human Rights Committee, the identity of the country rapporteur is kept confidential. This inhibits the flow of information to the rapporteur. The other four committees have not found that public knowledge of their identity has resulted in any serious impediment or personal threat to the integrity of their work. It has been the case that when their identity is known, both states parties and NGOs have sought to lobby country rapporteurs concerning the various dimensions of considering state reports. But country rapporteurs should be capable of avoiding inappropriate encounters. Furthermore, such lobbying efforts are not confined to members who are country rapporteurs. As long as the process of handling reports depends on the preparation of the country rapporteur to an important extent, procedures should maximize the flow of information to that individual.

At the same time, the country rapporteur system highlights the importance of independence of treaty body members from their own states parties, and their willingness to fully engage in an analysis and critique of a given state party. There have been circumstances where a treaty body member has sought to become a country rapporteur in respect of states having a significant relationship (either negative or positive) to their own. CEDAW seeks to appoint rapporteurs from the same region as the state party. CAT takes linguistic ability into account, in order to read untranslated documents of many kinds.

RECOMMENDATIONS

Treaty Bodies

The system of country rapporteurs is an efficient way to maximize the committees' ability to comprehend country situations. However, its effective functioning depends on the expertise and initiative of committee members. In theory, all committee members should take an equal role in serving as country rapporteurs. It is therefore incumbent on states parties to elect members who are willing and able to perform the function of country rapporteur.

As long as states parties continue to elect non-independent members to treaty bodies, the committees themselves must exercise greater responsibility for ensuring that members are not named as country rapporteurs with respect to states for which their independence and impartiality appear to be in any doubt.

15. List of Issues

The lists of issues are intended to increase the efficiency of the dialogue with the state party, and to maximize the treaty body's understanding of a specific state situation. They do this by:

(1) compensating to some extent for poor reports, by specifically directing the state's attention to issues avoided in reports

(2) allowing an update of the country situation immediately preceding the dialogue, so as to minimize the time in oral discussion required for updates

(3) focussing the dialogue on major issues of concern to the treaty body which arise from the report (and the secretariat and committee's research)

(4) providing time for states parties to prepare for the dialogue and anticipating the subjects of discussion

(5) permitting a written exchange of information of concern to the treaty body, so as to further focus the dialogue itself on the key issues.

Although the preparation and substance of the lists of issues and their usage can be improved, these goals are reasonable and laudable.

CAT and CERD do not adopt lists of issues. One reason suggested is that the more focussed nature of CAT does not require it. CEDAW does not adopt a list of issues for initial reports, on the grounds that it would antagonize states parties and inhibit the development of their relationship with the Committee prior to the commencement of the dialogue process. None of these reasons is cogent. In so far as CAT and CERD extemporaneously can conceive of questions to put to state parties, informing states parties in advance of the nature of their concerns, interests and requests for further information in specific contexts can only assist the exchange of information. CAT provides 24 hours between questions and answers during the dialogue process. CERD provides an overnight. The purpose of the dialogue is not to surprise states, but to permit them to answer as fully as possible, and to maximize and internalize their own thinking and assessment of the national implications of treaty requirements. This is at least encouraged through the adoption of lists of issues.

This applies equally to initial reports to CEDAW, in which the potential benefits apply equally to periodic reports. The absence of a focussed beginning to a dialogue with the committee, encourages expanded "introductions" by states parties which waste time. Non-adoption of a list of issues means that there is no working group consideration of the state party's report. Other members of the committee learn of the country rapporteur's initial assessment of the main issues only 30 minutes prior to the commencement of the dialogue itself. Furthermore, given the five and a half years on average between consideration of reports by CEDAW, the failure to maximize the information exchange during the entire first 'consideration of a report experience' is an important lost opportunity.

Criticism of the list of issues methodology has included a failure to finalize the lists in the working groups. Human Rights Committee members have been most reluctant to cede authority to the working group in this regard. It seems clear, however, that this degree of delegation is required in order to maximize efficiency. There are concerns that CEDAW's list does not have sufficient input from the country rapporteur, or many other committee members. This has a tendency to manifest itself in the unwillingness to generally confine questioning during the dialogue to what is highlighted in the list of issues. Refusing to limit questions to the broad areas of interest identified in the list of issues should result only from unanticipated or new significant information; unfortunately, this is not the case with most of the treaty bodies. The identification of the list of issues is usually dependent to a large extent on input from the secretariat, emphasizing the need for a thoroughly informed staff behind an effective treaty body operation.

The goal of maximizing the treaty bodies' accurate understanding of a country situation is assisted if interested actors other than the states parties contribute to the dialogue process. This requires other actors to be informed of the list of issues well in advance of the session, in order to provide timely answers that may contrast with those of the state party. Furthermore, the lists assist all interested parties in understanding the application of the treaty to the specific state, and the kinds of concerns that specific application generates. However, in the case of CEDAW the lists of issues are never published or put on line. In the case of CRC they are not published or put on line prior to the dialogue, although there is a very good communication network via the NGO-CRC group.

Written answers to the lists of issues are requested in the case of CESCR and CEDAW. CRC requests written responses to only some questions on their list. The Human Rights Committee does not seek written answers at all apparently on the grounds that individual members object if answers are submitted too late for translation and yet circulated. The failure to solicit written answers diminishes the ability of the lists of issues to accomplish its intended goals: maximal preparation and understanding of the country situation by committee members in advance of the dialogue, focussing of the dialogue, and receipt of additional targeted information from other actors. It also encourages the monotonous reading of answers from the podium as part of the state-treaty body exchange.

At the same time, written answers are not published or put on line. In very limited circumstances they are put on line by CRC. This is very unfortunate. Often, the written answers more precisely apply the provisions of the treaty to the state party concerned than do the state reports. They may be more detailed in many respects than state reports. They are directed to, or often address, specific concerns of the treaty body about the treaty's application in the national context. They contain undertakings and official statements of principle by states parties related to specific international concerns. They are often essential counterparts of state reports which are years out of date by the time the dialogue occurs. Yet they are routinely discarded at the end of the dialogue.

RECOMMENDATIONS

Treaty Bodies

All treaty bodies, including CAT and CERD, should adopt lists of issues for the consideration of state party reports. CEDAW should adopt lists of issues for initial reports.

The lists of issues should be published and put on line prior to the dialogue with the state party.

Written answers should be solicited from every state party at least two months in advance of the dialogue.

Written replies to lists of issues should be published. The informality of their format can be maintained; they can be published in "unedited" form. If the submission of the replies in an electronic form would assist in their earlier publication or availability on the OHCHR website, states should be requested to submit an electronic version together with hard copies.

Treaty body members should confine their questioning to the broad areas of interest and concern identified in the list of issues, except in circumstances of unanticipated, new, and significant information.

NGOs

NGOs should increase their input during the drafting stages of the lists of issues.

16. Country Information Within OHCHR

Four of the six committees now have the secretariat prepare a "country analysis" or "country profile" prior to their consideration of a report. CEDAW and CERD do not. The Human Rights Committee members, however, rarely make use of it. CAT has just started the process (November 2000). The CRC analysis is relied upon heavily by members, who may fail to read the original material, including state reports and written submissions (particularly if the member is not the country rapporteur).

The quality and extent of the country analyses are very uneven. Only the analyses produced by CRC are routinely shared with other treaty bodies (and with other parts of OHCHR). The analyses of CRC include 10-15 pages of general background information on the state. This includes a summary of basic information (like those found in "CORE" documents), and an overview of the human rights situation drawn from a multiplicity of sources. External sources (non-UN human rights reports) are quoted and a summary provided of UN sources (resolutions and reports). The analyses contain another 10-15 pages assessing the state party report. Omissions are noted, problem areas in the state are highlighted, areas of concern are identified through quotations drawn from NGO, UNICEF, other government reports, and media accounts.

The profile produced by CESCR is about 15 pages. It is not shared in the internal OHCHR database. It provides a brief summary of country facts, and then for 2-6 pages describes facts concerning economic, political, social and legal issues drawn from selected comments in UN reports, regional institution reports and country profiles, other government reports, and media accounts. A second part selects and quotes comments/criticisms from those same kinds of sources, NGO reports, and the concluding observations of other treaty bodies, and organizes them by articles of the Covenant.

The Human Rights Committee analysis of 8-9 pages is of much more limited scope. It puts in table form issues discussed at the previous examination of the report from the state party, the resulting concluding observations, and matches them to selected portions of the current state party report.

There is an explosion of written material relevant to assessing the implementation of the treaties at the national level: UN mechanisms, agencies and bodies, annual and state reports of major international NGOs, annual and state reports from regional international organizations, major in-depth annual reports of governments, concluding comments of all treaty bodies, NGO shadow reports written specifically for the dialogue process, media reports, and academic articles. The amount of information is difficult for committee members to digest.

The treaty bodies consider one report in a dialogue lasting 4.5 - 9.5 hours. They take up anywhere from four to thirteen states - but on average seven to eight different states - at each session (a two or three-week period). They will not consider that same state for another five years on average. In between sessions any work for the committees is unremunerated (members of three committees also receive no remuneration during sessions), and normally have other employment. Of necessity, therefore, they are dependent on the ability of the secretariat to gather information, organize it, and present it in a manageable form.

At the same time, treaty body members have been elected as independent experts. The selection and presentation of information may involve judgmental decisions which are inappropriate for unelected officials. Many of those authoring submissions to the treaty bodies are also sceptical about the ability of the secretariat to select material, and would prefer committee members to read the original submission. On the other hand, if the quantity of information is unmanageable or unread by committee members, reliance on the secretariat will simply surface once again in the drafting of the lists of issues and the concluding observations.

Hence, there are two schools of thought. One encourages the development of a central data base organized by country and containing all human rights information. The information would be from UN sources (official and unofficial documents) and point to, or link to, or even contain, information from external sources. The task of each treaty body member would then be to research the country situation themselves. As of now, there is no such central country-organized database, even of UN sources. In the meantime, hard copies of many kinds of country-specific information are provided to members individually or in a common country file in the meeting room. The second school of thought encourages (in addition to the eventual development of a central data base) the filtering and organizing of material by the secretariat, who would read through all the source material, select or highlight material of greater relevance to the implementation of the treaty, and connect the material to the relevant provisions of the treaty.

The latter approach, favoured by CRC, is obviously much more resource-intensive on the part of the secretariat. The CRC has more staff members than other treaty bodies (with respect to state reports). It is assisted by an NGO network dedicated to the Committee's work. It is also assisted by UNICEF, which has made the implementation of the Convention and cooperation with the Committee a fundamental part of its operations. If the resources were provided to other treaty bodies, it seems clear that some filtering of the large quantity of information and organizing of source material in relation to the specific provisions of the treaty would benefit all treaty bodies. However, a deliberate effort to avoid duplication of the initial phases of this work - collecting, filtering and some organizing of information from UN and other sources - by the secretariat is required. At the moment, different staff members often prepare background information on the same state for different treaty bodies.

In addition, the usefulness of country analyses will relate to the timeliness of their production and their availability to all treaty body members. There is a tendency to focus on providing information well before the session (or working group) only to the country rapporteur, and in some cases the working group. The country analyses are generally not circulated to all committee members at the same time. If they were well-prepared, and received in advance of the session, it would permit additional research or reveal a potential need to consult background sources in sufficient time for the various stages of the dialogue process (preparation of the list of issues, NGO and UN agency consultations, dialogue with state party). At present a large country file is created for the committee room itself, many of the documents not being provided to members on an individual basis. The contents of the country file become known, and are made available in many cases, only at the session at which the dialogue occurs.

At the same time, a central country-organized information system is an essential component of an efficient treaty system. The secretariat repetitively gathers country-specific information on the same state for different treaty bodies (and for other OHCHR operations). Information from a wide variety of UN sources must be sought on separate occasions from a variety of places. Repeated searches for updates are necessary. In the absence of posting material on a central site, a significant amount of material is never circulated, even within OHCHR itself.

Country-specific information which is relevant to a consideration of reports by treaty bodies is also found in non-electronic form at OHCHR. Hard copies of material flow in to OHCHR from a multitude of different sources on a regular basis and are used by a variety of staff members engaged in a range of operational activities. At various points in time, efforts have been made to create a "Common Country File" which is intended to contain all of this material in a central place. There have been a number of impediments.

• Country information collected by individual staff members is not routinely given, when it is no longer used, to the staff member attempting to create Common Country Files

• Information coming into different branches of OHCHR (the treaty "support services" branch (SSB) and the "activities and programmes" branch (APB)) is largely retained in separate country files.

• The usefulness of creating common country files for the large numbers of country-specific documents coming into OHCHR, will depend on simultaneously creating a professional bibliography of material (name, author, publisher, date) contained in the files and circulating the bibliography. This has not occurred.

• Similarly, the utility of a common country file will depend on the preparation of professional acquisition updates (name, author, publisher, date) to staff members. This has been undertaken in a preliminary format only. The bibliography and acquisition lists are necessary to keep staff informed of the existence of hard-copy information and permit them to quickly assess its potential relevance to the preparation of a country analyses and the work of the treaty bodies.

Another source of country-specific information for the treaty bodies is the experience and knowledge of OHCHR desk officers. Approximately 30 desk officers are responsible for about 150 states (other states are assigned when necessary or as issues are raised). Their responsibilities include servicing mechanisms of the Commission on Human Rights, and managing technical cooperation projects. As a consequence, they usually find it necessary to focus on a subset of the states to which they have theoretically been assigned.

Nevertheless, for some states the desk officers have considerable familiarity with country situations, (particularly through servicing technical cooperation/advisory services projects or country rapporteurs). Information on all the states they have been assigned is also often channelled to them. However, until recently there has been little exchange of information between desk officers and treaty bodies. Some reasons suggested have been:

• country-specific information is normally not brought to the attention of treaty bodies because they are assumed to be interested in states only on a very intermittent basis

• posting the schedule of treaty body consideration of state reports on a central site is not sufficient to encourage desk officers to draw information to the attention of treaty bodies

• the work of desk officers with states may be compromised by the appearance of testifying against, or informing upon, a state party before a treaty body.

The suggestion that it is inappropriate for OHCHR desk officers to share all their information with treaty bodies is unjustified. If UNHCR and other agencies/organs which are engaged in field operations can provide information to treaty bodies, OHCHR staff (functioning under a common mission statement) can surely be expected to do the same. On the other hand, concerns that treaty body members are not genuinely independent, and hence cannot be trusted with some information gathered by OHCHR, are unlikely to dissipate without a significant change in election behaviour to treaty body membership on the part of states parties.

RECOMMENDATIONS

OHCHR

A country analysis is in principle a helpful tool for all treaty bodies. The analysis should:

• primarily reproduce selected portions of original material rather than offering written summaries,

• indicate all sources, and wherever a selected text is included the specific source should be identified on each occasion,

• organize information in accordance with the provisions of the treaty,

• systematically include:

• findings, decisions and reports of UN mechanisms, bodies and agencies

• concluding observations of other treaty bodies

• NGO information

• reports of regional institutions

• major governmental reports.

At the same time, copies of original sources should continue to be provided in a country file available to committee members for consultation. Over time, experience by the committee with particular sources of information may indicate that they are unhelpful, or unreliable and should be omitted, and direction may be provided to the secretariat in that regard. Lists of information not included in the country analysis, but available in the committee room's country file, can be provided to committee members.

Country analyses should be sent to all committee members well in advance of the session at which it will be used (the working group, or committee session). A list of source material used in its preparation and available from the secretariat should be provided to members at the same time, so that they will be able to request it in advance of the meeting if necessary. Material received after the production of the country analyses (particularly NGO material) should be circulated in advance of the session as far as possible to all committee members.

In the context of a consolidated state report organized on a thematic basis, there would be one common country analysis which organized information on a thematic basis, (thereby considerably reducing the duplication of a secretariat effort to produce country analyses).

Current efforts by OHCHR to create a "country information framework" on its internal HURICANE network (Human Rights Computerized Analysis Environment) should be encouraged. The plan should be expanded to incorporate text or links to all relevant country-specific UN reports (such as state analyses from UNDP, UNICEF, UNFPA, WHO). A multiple database search engine which permits a user to access information by country must be introduced. This should connect to the "External sources database" currently under development. Guidelines should be developed for OHCHR staff possessing country-specific documents on the use of HURICANE. These should include identification of the kinds of material which should be posted, the responsibilities of desk officers for posting the material, and the methodologies for restricting access where necessary.

Common country files need to be kept on a systematic basis by OHCHR. This includes the preparation of a professional catalogue of existing country-specific material, the integration of material currently separated into SSB and APB files, and the preparation of a regularly distributed acquisition list which provides sufficient details to enable a preliminary assessment of the relevance of the material to the treaty bodies.

For those states with which the desk officers have specific expertise (producing reports for a country rapporteur, or participation in a needs-assessment mission, or servicing a technical cooperation project), desk officers should routinely brief the treaty bodies. They should prepare a memorandum or briefing notes for the committee, and meet directly at least with the country rapporteur and working group. For those states with which the desk officer has no specific expertise, they should assist the treaty bodies in identifying sources of information and relevant documents, share information which may have been channelled to them, and be available to meet with the country rapporteur and working group if asked. Overall, there should be a clearly defined set of expectations on the part of all desk officers in relation to the work of the treaty bodies, and a concomitant interest on the part of the treaty bodies in the knowledge and resources of the desk officers. (See also infra section 34. Servicing and Resources)

17. CORE Documents

One hundred and five states have submitted CORE documents, and 88 states parties have not. Some CORE documents date back almost a decade. Thirty-three states have submitted updating information.

Although CORE documents are on the OHCHR website, they are not accessible in a user-friendly format. There is no single list of CORE documents organized alphabetically by country, so that states which have failed to submit one are not readily discernible.

Although CORE documents are useful to the work of the treaty bodies, the general failure to keep them up-to-date will diminish their usefulness in the future.

RECOMMENDATIONS

OHCHR

Letters of reminders should be sent to states which have not submitted CORE reports.

A list of CORE documents should be clearly catalogued on the OHCHR website by country.

States Parties

CORE documents should be kept up-to-date through the submission of periodic updates by states parties as required.

18. Non-governmental Organizations (NGOs)

The treaty bodies have been heavily dependent on information from NGOs in preparing for the dialogue with states parties. State reports are self-serving documents which rarely knowingly disclose violations of treaty rights. Improvements in the provision of country-specific information to treaty body members, such as country analyses, or briefings by desk officers, and electronic means of gathering information from a variety of sources, have also been relatively recent developments. Furthermore, NGOs from the national level continue to have unique information on the application of the treaties to the domestic context. This dependence has led to a close working relationship between NGOs and most of the treaty bodies.

At the same time, links between NGOs and treaty bodies vary among the committees. Neither CERD nor CAT has pre-sessional working groups that meet with NGOs, nor (formal or informal) meetings with NGOs scheduled during the time period of the session. They meet NGOs on an ad-hoc basis, either as individual members in the case of CAT, or in the case of CERD over lunch-times when few members attend and others refuse to go systematically. CERD has also ceased its former practice of soliciting information from NGOs.

CESCR permits NGOs to speak at an open meeting on the first day of the session for which there are no summary records. The Committee permits NGOs to use the time to speak about states which are not on the agenda for the session, and outside the context of a state report. In the past, states parties have sometimes not been informed such submissions have been scheduled, although such submissions have led to specific requests from the Committee to states parties.

While CEDAW does not formally solicit information from NGOs, it sets aside time to meet with NGOs both during the pre-sessional working group and on the second day of the session. It also has a close working relationship with a number of international women's NGOs which closely follow the work of the Committee, and with UNIFEM which has characterized the Convention as a fundamental charter for its own work. NGOs routinely submit shadow reports which relate to Convention articles, and women from the national level frequently attend the actual dialogue, with the assistance of leading international NGOs, such as IWRAW-Asia Pacific, together with UNIFEM.

The CRC has the closest working relationship with NGOs, and this has been true since the Convention came into force. An NGO coalition, based in Geneva and devoted to liaison with the Committee (The NGO Group for the Convention on the Rights of the Child), performs a number of important functions:

• contacts NGOs at the national level to advise them of the requirement upon their government to produce a state report

• alerts NGOs to the possibility and importance of preparing a shadow report

• encourages NGOs to work together with other NGOs at the national level in the preparation of a report

• provides guidelines and other assistance on the preparation of shadow reports

• advises NGOs of the forthcoming consideration of reports

• arranges for the participation of small numbers of NGO members from the national level in the pre-sessional working group in Geneva

• assists in the dissemination of the Committee's list of issues

• arranges for small numbers of NGO members from the national level to attend the dialogue with the Committee

• assists in the dissemination of the Committee's concluding observations.

The successful cooperation between the NGO-CRC Group and the Committee is no doubt facilitated by the involvement and financial support of UNICEF, and other bodies.

Despite considerable NGO interest in the work of the treaty bodies, there are, nevertheless, procedural impediments to their participation. These include:

• working group meetings that determine the lists of issues are (and should be) months before the dialogue and NGOs normally cannot afford to come to both working group and committee meetings with the state party; most prefer to attend the committee meeting and hence, new questions for states parties are introduced late in the process

• meetings with the state party are often held over a significant time period with many days in between the question and answer sessions - CEDAW having the longest break between questions and answers (for initial reports); release of concluding observations is also usually some days or weeks past the dialogue; hence, the time necessary for NGOs to monitor the Committee interaction with a single state may amount to a lengthy (and hence expensive) period of two to three weeks

• CEDAW's release of the concluding observations only two to three weeks after the session ends inhibits the ability of NGOs to raise media interest

• insufficient proactive efforts on the part of some treaty bodies to

(a) identify relevant national-level NGOs and to invite them to participate in the process,

(b) educate them about the optimum nature of the substance and timing of their participation,

(There remains a significant lack of familiarity with the treaty standards, their meaning, the state reporting process, and the potential contribution of NGOs, particularly at the national level.)

• difficulty in accessing state reports and concluding observations at the national level, despite growing amounts of information on OHCHR and DAW web sites

• differential access to committee members, as some NGOs know the addresses of members and send their material directly to them prior to the meeting, and others must wait for distribution by the secretariat (which is often at the meeting itself)

• screening or discouraging the use of NGO material by the Chair(s) of CERD.

The committees' dependence on NGO information has its limitations. Since NGO contact with most of the committees is ad-hoc, and for national NGOs, often depends on fortuitous awareness of the process and dates, the information presented to the committees is far from comprehensive or even targeted at the central human rights issues. The Committee's holistic understanding of a country situation may be distorted by information coming from an active, but specialized, NGO which is focussed on a very limited range of matters. The agenda of a particular NGO may not coincide with the committee's interest in knowing the facts and their relative importance in the state's overall implementation record.

In practice, NGO information has been most helpful to the treaty bodies, when:

• it has been prepared through some degree of coordination or coalition-building at the national level

• international NGOs have endeavoured to play a facilitator's role: alerting national NGOs to reporting expectations of the state party, providing information about the treaty's substantive requirements and procedural rules, and encouraging and facilitating the direct participation by national level NGOs

• efforts have been made to follow committee or other guidelines on the preparation of NGO shadow reports, particularly tailoring information to the provisions of the treaty, and suggesting concrete proposals, both with respect to questions for the lists of issues or dialogue and recommendations for specific future national action.

In general, the relationship of the treaty bodies with NGOs should not be an isolated event. Success of the state reporting scheme depends on the state internalizing a process of review and follow-up to concluding observations. NGOs should be recognized as key partners in what is intended to be an ongoing process of (a) understanding and awareness of the standards (b) review of laws, policies and practices against those standards (c) planning or the creation of action plans to improve the shortfalls revealed (d) monitoring the implementation of those plans.

IWRAW-Asia Pacific is a classic example of an NGO which moved from a theoretical set of treaty standards to a methodology for implementation at the national level. In so doing, it integrated a dynamic and symbiotic relationship to a treaty body (CEDAW). It began by identifying a gap in the treaty system, namely, needs to:

• mobilize women's groups at the national and regional level to improve accountability of governments in fulfilling treaty obligations

• improve the flow of information from the international level of legal standards to the local level, (including monitoring and facilitating the implementation of the treaty locally)

• enable women to use the treaty to advance their interests.

IWRAW-Asia Pacific then identified strategies at both the national and international level to (a) improve women's ability to claim rights, (b) foster mechanisms of enforcement which implement those rights, and (c) facilitate ongoing monitoring to track progress in compliance. Its programme was built step-by-step:

• enhance understanding of "women's rights" and "equality" by using the Convention, particularly to emphasize the standard of de facto equality; develop the framework for identifying discrimination against women and the nature of state obligations under the Convention

• inspire women's groups in the region to locate their advocacy within a rights framework, and to be aware of the Convention as a critical tool for advancing their rights

• run training sessions to develop practical, analytical skills for lawyers and non-lawyers in legislative and policy advocacy; train lawyers on filing test cases challenging discriminatory laws, on the use of the international rights instruments in domestic cases, share examples of effective litigation in this context; prepare a practical guide to preparing legal briefs for claiming human rights for women through the domestic application of international human rights standards

• assist campaigns to encourage governments to withdraw reservations

• expand training programmes to a broader range of target sectors than women's groups, such as human rights groups, human rights commissions, the judiciary and lawyers, government officials, parliamentarians

• provide technical support to women's groups to facilitate the development and sharing of model legislation, and to comment on proposed bills

• run training the trainers sessions in order to build regional capacity

• establish monitoring networks

• use the outcomes of the monitoring to write alternative reports to be submitted to CEDAW; provide technical support to assist in the production of shadow reports

• attend CEDAW sessions, meet with CEDAW members and provide them with information

• encourage the adoption and ratification of the Optional Protocol to CEDAW

• empower women to use the Optional Protocol to claim their rights.

This integrated approach seeks to maximize national input at the international level, and the use of international standards at the national level. The approach is adaptable to other NGOs and other treaties.

RECOMMENDATIONS

Treaty Bodies and OHCHR

The treaty bodies and OHCHR should take a proactive approach to engaging NGOs in the reporting process. NGOs should routinely be:

• provided with clear information on the working methods of each treaty body and its relationship and rules with respect to NGOs concerning (a) written submissions, (b) oral interventions and meetings

• informed of the timetable of state reporting in respect of their state

• invited to submit information and to consider working with other national partners to submit information

• informed of guidelines for producing useful shadow reports where such guidelines have been issued by the committee, or of practical suggestions for producing useful shadow reports

• sent specific concluding observations when they have indicated an interest or submitted information to the treaty bodies.

Treaty Bodies

Clear rules about access to the addresses of treaty body members should be adopted and those rules should be applied uniformly to all NGOs making submissions. Savings in time and costs may dictate that professional addresses should be publicly available.

Committee members should not be prevented from viewing any submitted NGO material.

NGOs should be provided by all treaty bodies with clearer directions on what the treaty body expects and wants from NGOs, both in terms of written and oral comments, at both the Working Group and informal meetings during the session.

The treaty bodies should inform themselves about the sources and expertise of those making submissions as part of their effort to ensure that conclusions are based on reliable information. Committee members should concentrate on producing an accurate analysis of the central issues facing a state party and developing a concomitant set of relevant recommendations, and not on narrow agendas which may be selectively pressed before them.

Committees should not permit the use of session time for general submissions from NGOs concerning states parties that are not on the agenda.

OHCHR

OHCHR should identify NGOs interested in the process at the national level in each state; a database of national NGOs should be created including, where relevant, ECOSOC-accredited NGOs, and NGOs that have participated in the treaty system in the past.

OHCHR should appoint an NGO-treaty body liaison officer to facilitate various aspects of the NGO-treaty body relationship.

NGOs

NGOs should be encouraged to submit (at least written) information to the working group considering the list of issues, rather than simply making submissions at the time of the consideration of the report. Written information should clearly indicate (a) the relevant article of the treaty related to the specific information submitted, (b) the suggested question to be put to the state party, and (c) the rationale supporting the inclusion of the question.

International NGOs should be encouraged to play a facilitative role in familiarizing and engaging national NGOs in the treaty body processes.

NGOs should be encouraged to develop an integrated approach to implementing human rights treaties. They should aim to maximize national input at the international level by writing shadow reports, sending representatives to attend treaty body sessions, and sharing information with treaty body members. They also should aim to use international standards at the national level in policy and legal advocacy, through legal and nonlegal channels, the judiciary, human rights groups, human rights commissions, government officials, and parliamentarians.

States parties

States parties should be encouraged to perceive NGOs as partners in a nationally-focussed and ongoing process of generating awareness, conducting reviews, drafting action plans, and monitoring results.

19. UN Agencies, Bodies and Programmes

UN agencies/organs have different relationships with the treaty bodies. A few routinely attend the working group sessions of the four committees. The working group context provides the agencies/organs with the ability to provide candid information in closed-session to treaty body members. The failure of CERD to engage in briefings with UN agencies/organs inhibits what is submitted to CERD, because agencies/organs believe that limited distribution of written comments to the members of this Committee cannot be assured. The lack of a forum has also been problematic in the case of CAT. Agencies/organs with the closest links to a broad range of treaty bodies are ILO and UNHCR, and those with close links but to a restricted number of treaty bodies, UNICEF and UNIFEM. Other agencies/organs engage with the treaty bodies sporadically.

Frequently, the information provided by the agencies/organs (such as those of the ILO) is a repetition of what is found in more general reports, but relating to the specific states being considered. The information is most useful when it is a current assessment, not merely from the point of view of the agencies/organs' own standards, but tailored or related to the provisions of the respective human rights treaties. Some form of written submission is important, since not all members of the committees are present at working group sessions. Field officers (for example, normally brought in for the CRC by UNICEF for the express purpose of sharing information with the treaty bodies) are particularly helpful. (In the case of CRC only, this information is in effect transmitted to the whole of the Committee since almost all Committee members attend the meetings of the working group.)

The role of the agencies/organs in relation to the treaty bodies is complex. The agencies/organs want their effort to submit information to have positive results in terms of their own work. In other words, they want the end product of the state reporting process, (the concluding observations), to be a useful contribution for their purposes. Their needs relate to either the field level in terms of designing and implementing a programme, or the interpretation and development of standards which they want, or are required, to apply. Not surprisingly, UNICEF has found that the closer they work with the CRC, and the greater the input of UNICEF from the field level in terms of current, practical information, the more likely the concluding observations will be relevant to the agency in its own work. This potential for mutual support between UN agencies/organs and treaty bodies needs to move beyond UNICEF and CRC.

The relationship of the agencies/organs to the treaty bodies varies.

UNIFEM has said:

"The CEDAW framework can be tremendously useful in working for legal and policy changes at local, national and international levels. We have developed new programming aimed at: (a) achieving universal ratification of the Women's Convention and removal/narrowing of States' reservations (b) strengthening awareness of CEDAW and of the capacity of women's organisations to use it in their advocacy work and, (c) collaborating with other partners to support the work of the CEDAW Committee and strengthening of the Women's Convention. Indeed, we have pledged to become to CEDAW what UNICEF has been to the Convention on the Rights of the Child."

UNICEF has said:

"The United Nations Children's Fund is mandated to advocate for the protection of children's rights, to help meet their basic needs and to expand their opportunities to reach their full potential. We are guided in doing this by the provisions and principles of the Convention on the Rights of the Child."

UNDP has said:

"UNDP and HCHR shall closely cooperate with a view to promoting universal ratification and implementation of international human rights treaties."

UNHCR has said:

"There is a natural complementarity between the protection work of UNHCR and the international system for the protection of human rights....Human rights law is a prime source of existing refugee protection principles and structures..."

"UNHCR has continued to strengthen linkages between refugee law, human rights law and international humanitarian law, so that they can be better used for the protection of refugees and other persons of concern to UNHCR. The Office has done so by following closely the work of [among others]...the six human rights treaty monitoring bodies."

Evidently, the agencies/organs take different views of the role of the treaty standards in relation to their work. For UNICEF, and increasingly UNIFEM, the implementation of the respective treaties is at the core of their perceived mandates. UNDP can be said to have a growing belief - still largely theoretical - in the centrality of the treaty standards, and their implementation, to their work. For UNHCR, the treaty standards complement their own refugee protection scheme, with the treaty bodies offering additional means for furthering refugee protection.

The agencies/organs which work closely with the treaty bodies frequently list the following factors as impediments to their relationship with one or more of the committees:

• the quality of the members of the treaty bodies

• their lack of confidence that some members will maintain the confidentiality of sources since many members are government employees

• the absence of pre-sessional closed meetings where information can be exchanged on a confidential basis

• the quality of concluding observations, their failure to accurately reflect conditions, or their inability to serve as the basis of concrete national programming

• the lack of OHCHR resources to enable the treaty bodies or their secretariat to take advantage of offers to share and examine agency/organ country-specific files.

The treaties themselves do encourage a connection between the agencies/organs and the treaty bodies in terms of reporting. This is particularly true of the CRC and CEDAW conventions.

CRC

Article 45

In order to foster the effective implementation of the Convention and to encourage international co-operation in the field covered by the Convention:

(a) The specialized agencies, the United Nations Children's Fund, and other United Nations organs shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their mandate. The Committee may invite the specialized agencies, the United Nations Children's Fund and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates. The Committee may invite the specialized agencies, the United Nations Children's Fund, and other United Nations organs to submit reports on the implementation of the Convention in areas falling within the scope of their activities;

(b) The Committee shall transmit, as it may consider appropriate, to the specialized agencies, the United Nations Children's Fund and other competent bodies, any reports from States Parties that contain a request, or indicate a need, for technical advice or assistance, along with the Committee's observations and suggestions, if any, on these requests or indications;

CEDAW

Article 22

The specialized agencies shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their activities. The Committee may invite the specialized agencies to submit reports on the implementation of the Convention in areas falling within the scope of their activities.

For example, CEDAW routinely invites WHO, FAO, UNESCO, and the ILO to submit information relating to their work which is relevant to the implementation of Convention articles and supplements the state reports. Such reports are regularly submitted and published.

Overall, the willingness of the agencies/organs, with their considerable operational resources and practical experience, to be closely involved in the work of the treaty bodies and directly concerned in the implementation of the treaty standards can have a dramatic effect on the functioning of the treaty system. With field offices in 131 states, UNICEF does the following with respect to the Convention on the Rights of the Child:

• presses governments to submit reports

• encourages workshops with members of civil society to begin the process of report writing

• provides financial and other assistance to help with report writing

• supports NGOs writing shadow reports

• solicits information from the field which it sends to the CRC

• almost always sends someone from the field to pre-sessional meetings to meet directly with members

• half the time sends someone from the field again for the dialogue itself

• helps the Committee with its work (assists in improving coordination among members (avoid repetition in questioning states parties, agree on priorities, and work together as a team); provides assistance in identifying the list of issues)

• engages in follow-up at the field level (the field person who attended the session has seen where there is consensus and where the opportunities lie; this is much clearer than from reading summary records)

• translates concluding observations into local languages

• distributes the concluding observations locally

• uses the Convention at the field level to do programming beginning with its situation analysis.

The benefit for UNICEF is that the quality of concluding observations is improved and is consequently much more useful, improving UNICEF's ability to influence the national agenda. It also helps field officers in their dealings with government to speak in terms of "obligations". UNICEF no longer sponsors Committee visits to the region, believing these to have had little positive impact, but continues to sponsor participation in selected events on an individual basis.

UNHCR provides information to most of the treaty bodies, attending the pre-sessional meetings, and attempting to meet CAT or CERD members in the halls. Their methodology is to take note that a particular state is to be considered at one of the treaty body sessions, seek information from UNHCR field offices on the state party, and provide the information to the treaty bodies. They hope that the treaty body will reflect the concerns of UNHCR in their concluding observations, and that these, in turn, will reinforce their refugee protection work by becoming a shared concern.

UNIFEM has a much smaller operational capacity than UNICEF, with 12 regional offices and 12 gender advisors in the field. In January 1999 it created a "CEDAW advisor". It has moved from specific CEDAW-related projects, such as providing translations of CEDAW and general human rights training in the regions, to programming around the Convention with the specific goal of operationalizing the Convention at the national level. In this capacity it has sponsored various meetings in states bringing together CEDAW members, government representatives and members of civil society. Its work includes encouraging training NGOs and producing manuals. It engages in a programme, together with IWRAW-Asia Pacific, in which NGOs from states parties that are to be considered are brought to the CEDAW session, provided training on Convention and CEDAW procedures, provided an opportunity to speak directly to the Committee, and prepared for follow-up when the concluding observations are received. UNIFEM is keen to improve the precision and programmatic capacity of concluding observations. At the same time, it emphasizes that the goal is to facilitate the ability of actors at the national level to mobilize and programme around CEDAW, which if accomplished by local actors, might reduce the relative importance of the quality of the concluding observations.

UNDP is a key organization in the UN structure. UNDP chairs one of four UN Executive Committees (UNDG - the UN Development Group), which among other things, develops important guidelines for the implementation of UN policies. UNDP is responsible for UN systemwide coordination of operational activities at the country level. UN country teams at the field level are usually chaired by the UNDP Resident Representative. With offices in more than 130 states, it has tremendous potential to act as a catalyst in integrating human rights treaty standards into national programming, and to follow-up outcomes of treaty body work.

In March of 1998 OHCHR and UNDP entered into a Memorandum of Understanding. At regular intervals the effectiveness of this MOU is monitored by a Joint UNDP-OHCHR Task Force. The process is still at the early stages, with UNDP taking an interest almost exclusively in the work of CESCR, offering some training programmes, as well as some limited assistance to governments in report writing and follow-up. There are also suggestions for a more advanced exchange of information from UNDP to CESCR (including the provision of UNDP National Human Rights Development Reports and country statistics and analysis, either in writing or through briefings). There are also internal directives to UNDP Resident Representatives to "play a catalytic role in bringing together all relevant national actors in the preparation of the State party reports to the human rights treaty bodies...includ[ing] assessing the human rights situation at the national level and conducting a comparative review of national legislation and international human rights standards to identify gaps and contradictions."

UNDP and OHCHR have commenced a joint programme called HURIST (Human Rights Strengthening), which among other things, identifies specific operational activities to be supported. Such projects include the development of national human rights plans, the translation and dissemination of human rights texts, and regional conferences on a variety of subjects. HURIST is meant to assist in the identification or integration of human rights into UNDP programming. It remains to be seen how closely these activities will be tied to the treaty standards and their implementation.

However, the statement of UNDP to the June 2000 Meeting of Chairperson's cautions: "it cannot be taken for granted that the entire organisation is familiar with the specificity of the human rights treaty monitoring bodies....[T]here is a certain hesitation towards UNDP engaging in possible sensitive issues as UNDP's work at the country level is carried out in consultation with the respective government. [W]e should recognize the limited capacity of the organisation to be seriously involved in the full range of activities of the human rights treaty bodies." In fact, UNDP has strong ties to government and it is concerned that conducting human rights assessments will jeopardize the status and work of country offices. The issue is framed as one of whether human rights information can be collected and passed on to the treaty bodies without imperiling their work. This is despite the fact that a rights-based approach to development will require the preparation of an independent situational analysis. Hence, UNDP both (1) evidences "a certain hesitation" in a greater level of engagement, and (2) voices concern about the treaty bodies' lack of familiarity with country situations and the fact that concluding observations are often not useful or programmatic.

Although major operational agencies or programmes such as UNICEF and UNDP have the potential to make a tremendous difference to the efficacy of the treaty bodies and the implementation of standards, there is an important caveat. They usually do not have similar operational functions or field offices in developed countries. In the remaining 60 states the catalyst and operational forces are normally NGOs, the media, and democratic institutions, all of which are often assumed in the context of a developed country to have the means and the will to translate the human rights treaties and the treaty body processes into action. This claim is often not borne out by the facts.

RECOMMENDATIONS

Treaty Bodies and OHCHR

The UN agencies, bodies and programmes are key partners in the effective functioning of the human rights treaty system. Neither OHCHR, nor the treaty bodies, has the capacity to engage as broad a constituency in the treaty system as these agencies/organs. The culture of the UN should promote the genuine integration of human rights into the functions and operations of existing mechanisms. Efforts should be made by OHCHR and the treaty bodies to maximize the involvement of the agencies/organs in the treaty system. This should envisage the participation of these agencies/organs in a number of ways:

• encouraging the drafting of state reports and the development of national coalitions and partners

• providing solid information from the field

• contributing suggestions for the drafting of practical and accurate conclusions

• following-up and applying standards to specific states in their own work.

Treaty Bodies

The treaty bodies should adopt a more proactive approach to soliciting input from UN agencies, bodies and programmes, beginning with specific invitations and personal contacts with a broader range of agencies/organs, with a view to their operational capacities. Invitations should solicit input into the preparation of country analysis, and initiate meetings with treaty body members.

Greater efforts should be made specifically to engage hitherto uninvolved and important agencies such as the World Bank and the International Monetary Fund.

Treaty bodies should conduct a detailed discussion with individual agencies/organs concerning the information that would be most useful to receive from the field, and in turn listen to their accounts of the form and content of useful concluding observations. (The brief statements and limited interaction at the Chairperson's meeting have not served this purpose.)

Treaty bodies should develop practical guidelines tailored to the work and mandate of individual agencies/organs, on the most useful form of submissions or contact, and suggested follow-up strategies.

CAT and CERD should institute pre-sessional working groups.

Treaty bodies should draft concluding observations which are cognizant of programmatic requirements.

OHCHR

Greater numbers of MOUs should be signed between OHCHR and UN agencies/organs (in addition to those currently with UNFPA, UNDP, FAO, and UNESCO). MOUs between OHCHR and UN agencies/organs should stress that assessment and planning in light of human rights treaty standards (and their application by the treaty bodies), is a necessary part of the agencies/organs' work, consistent with legal obligations of all UN member states. Divisions of responsibilities should be clearly articulated in MOUs, and modified and developed through experiences in the subsequent follow-up process. These divisions, or the details of a framework of complementarity, should bear in mind concerns for operational effectiveness including safety, access, resources and visibility. Ongoing monitoring of the contribution of the MOUs with UN agencies/organs should be an important priority for OHCHR, and cooperation with the treaty bodies should be integrated and supported throughout the process.

OHCHR should expand its provision of training sessions for UN agency/organ personnel on the requirements and substance of the human rights treaties.

OHCHR should consider attaching small numbers of staff, or hiring local people to be attached, to existing UN agency/organ field offices, or field offices of other actors as appropriate, for the purposes of monitoring and reporting, providing advice, or disseminating information to government and NGOs at the local level.

UN Agencies, Bodies and Programmes

The human rights treaties should be a reference point for the UN agencies/organs, and the standards should be integrated into their operations.

UN agencies/organs should send targeted information to the treaty bodies, not simply copies of reports for other purposes without some effort to relate these reports to the treaty standards.

UNDP should significantly deepen the extent and form of its cooperation with the treaty bodies, as envisaged in a number of reports from regional workshops and statements made in the MOU Review and HURIST context. These include using the preparation of state party reports as an opportunity to encourage dialogue with many actors at the national level. HURIST should facilitate not only ratification, but also follow-up of treaty body conclusions. Its success should primarily be measured by follow-up programming initiated, and improved implementation, utilizing the treaty bodies' lists of issues and concluding observations as benchmarks.

(See also agency involvement through the UN Development Assistance Framework (UNDAF) infra section 24.(b)(ii) Follow-Up: UN Agencies, Bodies and Programmes)

20. The Special Procedures/Mechanisms

Most of the Special Procedures of the Commission on Human Rights were created following the creation of the treaty bodies. The scope and mandates of the special procedures have greatly expanded over the past decade. There are now fourteen country rapporteurs/representatives/independent experts, nineteen thematic rapporteurs/representatives/independent experts, and two thematic working groups. In recent years the Special Procedures have conducted approximately sixty field missions, and issued 800-900 urgent appeals annually.

The Special Procedures have more flexibility in relation to a number of functions as compared with the treaty bodies. The mandates or operation of the rapporteurs is not strictly associated with ratification of the human rights treaty standards. The Special Procedures therefore cover states which have so far avoided the treaty system, or avoid some dimension of its operation (a particular treaty, individual communications, inquiries). The range of states targeted by the thematic Special Procedures is therefore broader than those subject to the complaints procedures associated with the treaties. The issuing of urgent appeals also does not depend on any likelihood of satisfaction of conditions of admissibility, such as the exhaustion of domestic remedies. The Special Procedures normal modus operandi is to visit the relevant state(s) concerned, in contrast to the treaty bodies which essentially engage in written and oral dialogue with states outside the state concerned.

The limited range of states targeted by country mandates is clearly a product of political considerations - a restriction which the goal of universal ratification of treaty standards seeks to avoid. However, at least as long as universal ratification of both substantive rights and the accompanying individual complaint mechanisms has not occurred, mechanisms which extend the principles of international human rights protection beyond participation in the treaty system will be necessary.

At the same time there is overlap. Some states are subject to the attention of both special procedures and the treaty bodies. Sometimes this overlap is not strictly-speaking duplication. Treaty bodies have little capacity to deal with emergencies or to focus on systemic human rights violations or violators for sustained periods of time. There is little faith in the ability of the treaty bodies to deal with urgent actions in individual cases, although this reluctance is not necessarily justified. On the other hand, there are situations where individual cases are first sent to the special procedures and later to the treaty bodies on substantially the same issues. To date, the treaty bodies have tended not to count these initial entreaties as running afoul of the provisions in CAT, the Optional Protocol to CCPR to a more limited extent, and CEDAW's Optional Protocol, that disallow communications relating to matters which have been examined, or are being examined, under another procedure of international investigation or settlement.

In many ways, the work of the special procedures is more visible. Their work often involves on-the-spot investigations or high profile visits, they have more direct media contact, and they usually report to the Commission on Human Rights, and/or the General Assembly in person. There is also an immediacy associated with their work that is frequently not affiliated with the methodical examination of reports, or the lengthy written examinations of a relatively small number of individual cases by the treaty bodies. This perceived immediacy and higher profile has a clear tendency to draw resources, which in a fixed pool may be at the expense of the operation of the treaty bodies. The proliferation of international mechanisms has also diverted attention from the centrality of legal standards for the international protection of human rights. The expansion of the operation of Special Procedures, the concomitant secretariat resources and the emphasis placed on their functions, clearly has had implications for the functioning of the treaty bodies.

Many of the servicing issues associated with Special Procedures duplicate the servicing issues associated with the treaty bodies. Both require of the secretariat: knowledge and research of country human rights situations, liaison with NGOs (both national and international) and UN agencies/organs in relation to country situations, as well as the handling and organizing of individual communications. Even the standards applied by the special procedures in their work are often the human rights treaties, (although they also utilize non-treaty provisions such as the Universal Declaration on Human Rights, and the Standard Minimum Rules for the Treatment of Prisoners).

Nevertheless, the servicing of treaty bodies and special procedures are divided within OHCHR. The consequences of this division have included the following. Desk officers engaged in ongoing monitoring of country situations relate almost entirely to the work of the special procedures. At the same time, the preparation of country analysis for the consideration of state party reports is done by the treaty body secretariat. Each of the desk officers and treaty body secretaries create their own lists of external sources and partners, including international and national NGOs. Country files for each branch are largely separate. Suspicions that treaty body members are not genuinely independent of governments have inhibited the sharing of information received by desk officers. Individual communications received by the desk officers tend to remain with either country or thematic rapporteurs, although a prior analysis of the ability of the treaty bodies to consider them has often not occurred. No set of clear, transparent priorities in terms of the most appropriate venue for complaints exists.

On the issue of communications, there is a growing bifurcation of complaints into so-called urgent appeals which are directed essentially to the special procedures, and substantive complaints without an urgent dimension that may, or may not, end up in the treaty bodies' communication procedures. The main focus of attention is on channelling urgent appeals to the relevant country or thematic rapporteurs or working groups, and coordinating joint urgent appeals when appropriate. Little attention is given to directing the appeal instead to a treaty body, on the assumption that they cannot act quickly, will refuse to become involved if there is no sign domestic remedies have been tried, let alone exhausted, and the criterion for their invocation (namely, irreparable damage) is much narrower than those which apply to the special procedures. It may be, however, that the ability of the treaty bodies to act has been underestimated. The Human Rights Committee normally acts through one person - the Special Rapporteur on New Communications - and is not held back by a bureaucracy. In about 95% of the cases in which the Human Rights Committee has used its interim measures procedure states have followed them, and their rules of procedure state specifically that a request for interim measures does not imply a positive or final decision on admissibility (although capricious disregard of the conditions underlying the request would not be consistent with the treaty's intent). At the same time, there is criticism that the use of the urgent appeals process by the special procedures has been done without sufficient screening of the source of the information or corroboration of the facts.

The special procedures (rapporteurs, representatives, independent experts, working groups) and the treaty bodies connect: (1) through the conclusions they each draw on specific country situations, and (2) in relation to thematic work (the drafting of general comments or treaty body thematic days of discussion). Each is generally provided with their respective reports and concluding observations. However, there are complaints that this information exchange is incomplete, and information about missions and outcomes, or concluding observations, is not routinely forthcoming. At the same time, there is minimal personal contact. Many of the treaty bodies are not briefed by special rapporteurs, even those closely connected with their work. There is considerable dissatisfaction on the part of treaty bodies such as CEDAW and CERD with the little connection they have with thematic rapporteurs. There are exceptions, such as the relationship of the Special Rapporteur on Torture with CAT, or the Special Rapporteur on the Sale of Children with CRC. Country rapporteurs are rarely, if ever, seen by treaty bodies. Treaty bodies have issued some invitations, but in general, there are no resources for rapporteurs to attend the relevant treaty body sessions (either pre-sessional working groups or committee meetings). The link is, in theory, largely expected to be the desk officer who services the rapporteur and does not require travel funds for treaty body meetings in Geneva. The chairpersons of the treaty bodies have an opportunity to discuss issues of general concern with the special procedures during their overlapping annual meetings, but the session is complicated by some mutual distrust of genuine independence and serious human rights expertise.

RECOMMENDATIONS

Treaty Bodies

The treaty bodies should consult country-specific rapporteurs when their respective state is being considered, and thematic rapporteurs more generally. Future reports organized on a thematic basis will also benefit from the input of thematic rapporteurs concerning observable trends, the nature of rights and their application to states parties.

The treaty bodies should consult relevant thematic rapporteurs in the formulation of general comments or recommendations.

OHCHR

The temptation to give priority in planning, development, fund-raising, and resource management to the higher profile special procedures at the expense of the treaty bodies should be avoided. On the contrary, the overall framework should be that of a partnership between (a) the methodical examination of country conditions on the basis of legal obligations, with the goal of developing national plans of action and sets of imperatives, and (b) more intensive focussed examination of a state, or of a thematic human rights issue, where conditions warrant.

In the long term, there should be sufficient numbers of desk officers to cover every member state of the United Nations, each of which has ratified one or more of the human rights treaties. These desk officers would be the focal point of all country-specific information within OHCHR. They would both prepare country analysis for treaty bodies and briefing papers for special procedures. While their preparatory work for treaty bodies could be subject to a legal review ensuring the connection between the country information and treaty provisions, substantive familiarity with specific states would be the primary responsibility of desk officers.

In the shorter term, a central database (with internal controls over access), accompanied by clear directives and organizational strategies for posting country-specific information, should house all information coming into OHCHR from a wide variety of directions (treaty bodies or special procedures). Internal reports produced for either treaty bodies or special procedures must be readily organized by state. Search engines should permit the identification of country-specific information within thematic reports. Desk officers familiar with a country situation should routinely provide briefings to treaty bodies prior to their consideration of relevant state reports.

A central database of NGO partners of both the treaty bodies and special procedures should include notes on information flow and active participation (posted and shared by treaty body staff and desk officers). (See supra section 18. NGOs)

There should be only one common country file holding hard copies of submitted information (in the absence of the technology to convert all submissions to electronic format), both for the special procedures and the treaty bodies. A bibliography of everything kept in a common country file should be created and regularly updated. A professional report concerning the handling of these sources of information should be commissioned, and include a comparative analysis of methodologies of other international or regional bodies, or foreign affairs' libraries.

A coherent, principled and transparent set of guidelines must be developed to channel or stream communications to treaty bodies and/or special procedures. This includes the streaming of all urgent appeals. A central complaints desk must be administered to implement these guidelines. This should be closely followed by the development of a user-oriented handbook for the submission of complaints by victims of human rights violations.

All special procedures should be routinely provided with the output of the treaty bodies as part of the preparation of any mission.

Special Procedures/Mechanisms

Country-specific rapporteurs should be provided sufficient resources to brief treaty bodies when their state is being considered.

The treaty standards should inform the work of all special procedures. Special procedures should aim to reinforce the universality of human rights and fundamental freedoms and foster universal ratification of human rights treaty obligations.

Special procedures should seek input from treaty bodies and their secretariat in the planning stages of a mission in order to identify possible opportunities for (i) fact-finding, (ii) information exchange about state reporting requirements, or (iii) follow-up of concluding observations.

Special procedures should consider inviting a member of a treaty body to accompany them on mission in appropriate circumstances.

21. The Dialogue

States parties notoriously manipulate the dialogue process to run out the clock and minimize the extent of the question and answer process. Introductions are often lengthy and uninformative. Chairs of the treaty bodies are frequently reluctant to interrupt, even if the state party has clearly been provided with information concerning time frames beforehand. Answers to questions often involve minimal efforts to respond substantively, and frequent promises of answers at an unspecified time in the future. Other answers are clearly intended to simply waste time. Many responses also indicate either a profound ignorance of the substantive meaning of human rights, or intense disdain and disrespect for the forum.

On the other hand, for states which seek a genuine exchange, the process is also infamously poorly managed. Treaty body members frequently repeat each other's questions. For a variety of reasons, they do not limit themselves to the questions in the lists of issues. The lists of issues is sometimes extremely lengthy. Diplomatic formalities and comments are continually repeated. Members make extended interventions which shorten the time available for answers. Observers have the impression that some members are primarily speaking for the sake of the summary records. The interventions of colleagues, not uncommonly, have had soporific results on members, if they are not working on other matters altogether. Reasons for media disinterest in the proceedings, and the frequent minimalist external audience, are readily apparent. In the case of CERD, the Chair encourages states parties to finish before the morning meeting time has expired, resulting in the shortest dialogue times of all.

CESCR takes the most time in its dialogue with states parties almost a full meeting more than other committees. It also takes as long with periodic reports as initial reports, which is not the case with four of the other treaty bodies. It therefore considers fewer reports proportionately to the meeting time available than other committees, with the exception of the Human Rights Committee which spends 30% of its time on individual communications. It does not appear that the additional time considerably alters the nature or depth of recommendations in concluding observations as compared to some of the other treaty bodies, such as CRC and the Human Rights Committee.

The quality of the dialogue is affected by the expertise of the state representatives with the subject matter of the meeting. The committees seek a dialogue with the individuals responsible for decision-making and implementation at the national level in the substantive areas covered by the treaties. In order to make this point, CESCR and HRC report the names and status of state representatives in attendance. The Human Rights Committee has, on occasion, responded to situations of unqualified representatives unwilling or unable to answer questions by refusing to continue the dialogue and rescheduling the meeting at the earliest opportunity.

The quality of the dialogue suggests to some that it should be abandoned altogether, or reserved for a few of the most intransigent states with whom written exchanges cannot suffice. NGOs, however, firmly express the view that in every case the oral process is an important contribution to the better protection of human rights. They argue:

(1) with respect to undemocratic states, it is a unique opportunity to publicly confront their governments with direct questions on their human rights record (via committee members),

(2) for states in the course of developing relationships with NGOs at the national level, the involvement and presence of those NGOs at the dialogue bolsters their importance, and encourages dialogue with those same officials upon their return home,

(3) it is an incentive for the production of better reports,

(4) it serves an educative value to particular national officials about the substance and application of treaty rights.

The reach of the dialogue itself, however, depends not only on the authority and interest of the officials who attend, or the influence of the national-level NGOs involved. These exchanges are all recorded. In theory, summary records are to be produced shortly thereafter and broadly disseminated. Summary records predated the introduction of concluding observations, and for many years, aside from summaries of the exchange in the annual reports, were all that remained of the dialogue. Summary records, when produced, often reveal insufficient answers, answers wholly incompatible with the letter and spirit of the treaty, as well as concerns of individual members (along with their political biases). They are not complete records. They are said to retain about one-third of an actual transcript. They are edited for content. Embarrassing or controversial remarks by states or committee members are often omitted. They are also very difficult to get. Meetings are originally translated by rotation in English and French. Since many treaty bodies deal with one state in consecutive meetings, a set of meetings with a single state party will often result in summary records in one language only years later. Summary records for CEDAW have not been available for some years. Production of summary records for other committees is also uneven for another reason. While the Committee is in-session, the production of documentation for that session is a priority for Conference Services. Summary records are therefore produced (in alternating languages) relatively quickly during the meeting. But as soon as the meeting is over the documentation is no longer a priority. Summary records for meetings that were not produced during the session (a significant proportion) will frequently be many months away. Recently issued translations of summary records have concerned meetings two to three years ago. For all these reasons, therefore, in practice summary records do not serve the purpose for which they were intended.

Confidential summary records are also produced for the closed sessions of the committee, which in the case of some committees, is a significant proportion of the time. In these cases, the summary records (which are produced during the session) appear to be a costly set of notes for country rapporteurs or staff writing concluding observations or individual communications. The existence of tapes in cases of significant dispute should suffice.

The inaccessibility of the dialogue in Geneva or New York, and its potential to subject unaccountable governments to a public exchange, are reasons some suggest for the treaty bodies to conduct the dialogue either in the state party itself or in the region. However, logistical difficulties have constantly plagued the Human Rights Committee sessions in New York, (the only treaty body meetings to take place outside the secretariat's home base), even though they occur at UN headquarters. Holding every meeting on-site in the respective state party is impractical. It is not clear that regional meetings would hold any more likelihood of media or NGO interest than meetings in New York or Geneva, since meetings in those two venues have not garnered more interest in the case of states in the vicinity than any other states. (See infra section 25. Treaty Body Visits or Missions to States Parties)

RECOMMENDATIONS

Treaty Bodies

Committee sessions should be divided into states at different stages of the process:

(a) states engaged in an initial dialogue concerning their report,

(b) states engaged in a second (briefer) dialogue concerning unanswered questions, or unsatisfactory responses to requests for additional information, (See also infra section 24.(a) Follow-Up: The Treaty Bodies)

(c) consideration of states failing to submit reports, and

(d) states providing unsatisfactory follow-up replies on individual communications in private meetings with the Special Rapporteur on Follow-Up to Communications.

The value of the dialogue outweighs its dysfunctional dimensions. Many of the regrettable features of the dialogue are avoidable. The goal should be to hone in on the key set of issues and concerns for that state, and become sufficiently familiar with them to permit programmatic concluding observations, through a series of preparatory steps taken in advance of the meeting.

Short and reasonable deadlines for introductory statements, answers of states parties, and interventions of members, should be set, communicated in advance, and strictly enforced by the Chair.

Lists of issues should be drafted by all treaty bodies and communicated to states parties well in advance of the session. Written answers should be requested in advance of the session (including HRC), in electronic and hard copy, and disseminated. Reminders should be given when deadlines for written responses have not been met. Members should generally be required to confine their questions to areas addressed by the lists of issues or raised by written responses, except in cases of unanticipated directions raised by the answers or significant new information. (See supra section 15. Lists of Issues)

The delay between meetings considering a report from one state party during a session, should not be greater than two days.

States which refuse to answer the questions posed during the dialogue should be met with:

(a) a request to receive a written response,

(b) within a specified period, and

(c) notice that an unsatisfactory response will be met by resumption of the dialogue at an early session of the Committee.

In exceptional circumstances, the dialogue should be suspended with representatives unable or unwilling to answer questions and the state party asked to resume the dialogue at the earliest opportunity with appropriate alternative representatives.

Treaty body meetings (currently only HRC) should not rotate between Geneva and New York.

Treaty Bodies and OHCHR

Summary records should not be produced for closed meetings of the treaty bodies.

Unless summary records for open meetings of the treaty bodies with states parties can be produced in a complete set, in one working language (and here the priority should be the working language of most value to nationals of the state party concerned), within four months of the dialogue they should be discontinued.

NGOs

NGOs should be encouraged, or redirected, to submit information to a much greater extent at the session at which lists of issues are drafted (like the CRC). (See supra section 18. NGOs)

States Parties

States should be clearly informed of the importance of sending qualified representatives to the dialogue and should be directly contacted by the secretariat to reinforce the matter. Failures to do so should be the subject of commentary in concluding observations. Names of the delegates should appear in annual reports.

22. Concluding Observations

Concluding observations are the key outcome of the state reporting process. The credibility of the state reporting system largely depends on their quality. In the early years of the development of the reporting process, the dialogue was the central feature and there were no concluding observations. Individual committee members made critical or constructive comments and sometimes these were recorded in the annual report summaries of the dialogue. Some members were reluctant to move to a system of committee concluding observations on the grounds that they would become a minimum common denominator. Now the annual reports no longer include summaries of the dialogue or individual comments. Summary records which may, or may not, reveal individual conclusions are often not available in practice. The unanimous conclusions of all members of the committee are all that is left.

The concluding observations are meant to serve as an expert committee's carefully considered conclusion about whether a state party has satisfied the legal obligations it assumed upon ratification of the treaty. In general, they do not address individual circumstances, although these have been used to probe issues of compliance. These conclusions have two functions: (a) direct public attention to shortfalls in compliance, and (b) identify specific programmatic activities to improve implementation. The success of concluding observations therefore depends on two elements: (a) their accuracy, as rigorous assessments of human rights conditions, and (b) their functionality, as perceptive evaluations of needs and priorities.

The fulfilment of these two conditions will in turn depend, most important, on access to reliable and knowledgeable sources of information, and the independence and experience of committee members. The subsequent use of the concluding observations will also require excellent means of dissemination and a systematic follow-up strategy.

Currently, the concluding observations meet the conditions of accuracy and functionality to widely varying degrees. The quality has been impeded by a number of factors, in particular: barriers to the submission of information, lack of human resources to sift and analyse information, impediments to an effective dialogue, and the lack of independence or expertise of significant numbers of treaty body members.

The quality of the concluding observations is reduced in the absence of state party reports. Only CERD has undertaken the consideration of a significant number of states in the absence of reports, and overall its concluding observations exhibit a reluctance and inability to draw specific and forceful conclusions. In general, CERD has the least developed concluding observations. CAT concluding observations, dealing with a narrower range of substantive issues, are the briefest, and recommendations are only five or six sentences long. Those of the CRC are more than twice as long as other treaty bodies, a level of detail which directly reflects the input of UNICEF and the NGO-CRC Group, and the staffing resources of the treaty body.

Overall, concluding observations are often extremely general, thereby frustrating all participants interested in using them to advocate, or plan, or implement reforms at the national level. Too often they identify areas of concern without specifying specific laws or practices, or connecting those concerns to specific recommendations. Examples from 2000 annual reports include:

"The Committee requests the State party to provide more data in its second periodic report on the problem of poverty...and urges the Government to take all remedial measures in order to combat poverty"

"...[T]he Committee recommends that the State party monitor all tendencies which may give rise to racial or ethnic segregation and counter the negative consequences of such tendencies."

"The Committee urges the Government to develop a policy and legislation to prevent and eliminate domestic violence, and sexual violence, including rape, against women and girls, and to prosecute violators."

This is a major impediment to the operation of the treaty system. The system has moved in stages:

• no concluding observations, and the inclusion in reports of self-serving and uninformative statements by government officials

• very brief analytical or critical statements by individual members

• introductory and selective praise for positive developments by the committee

• more precise articulation of concerns by the committee

• the identification of recommendations by the committee related to those concerns.

The last dimension varies significantly among the treaty bodies, but are key to the value of concluding observations. The unwillingness to be more specific arises from two primary factors: (a) the political bias of treaty body members, and (b) their limited knowledge of the country situation, and the resulting concern that errors in the identification of policies, laws or practices will bring their work into disrepute.

Concluding observations have integrated political biases, in everything from opening remarks, to the identification of so-called "positive aspects", the language used, and the substance of specific recommendations. The "introduction" and "positive aspects" portions often commend trivial or small steps in some states, while focussing immediately on a negative assessment in other states with similar human rights records. While "grave concern" is expressed in some contexts, "regret" and "noting the challenges" are expressed with respect to others in the absence of discernible factual grounds for the differential treatment. This is most evident in the concluding observations of CERD. Political bias is sometimes evident in the differential depth of treatment of some states (in the absence of corresponding justification in terms of human rights conditions). To some extent, the quality of concluding observations depends on the committee member assigned as country rapporteur. The extent or detail of the consideration of state reports is, however, also affected by political biases of other members. Concluding observations have also occasionally clearly stepped beyond the boundaries of the treaty provisions.

Other matters affecting the quality concluding observations are:

• The introductory portion of concluding observations frequently includes extraneous language of congratulations instead of getting to the point. The introduction does not clearly state at the outset what information the committee had before it such as: written replies, supplemental information, CORE document, NGO submissions, oral presentations.

• It is not clear in the case of CERD, CEDAW, CAT and CRC, with whom the Committee is meeting (the names and responsibilities of members of the delegation). This inhibits follow-up at the national level.

• Concerns are not always connected with recommendations. "Concerns" and "recommendations" are combined in the case of CERD, CCPR and CEDAW in such a way as to detract from the clear identification of recommendations.

• Often recommendations are ad-hoc and apparently driven by whatever external source spoke the loudest. Recommendations are not organized thematically or in terms of priorities. The problems with translating such selective results into national implementation strategies bode ill for the ability or advisability of "focussing" future reports.

• Although treaty bodies purportedly take cognizance of each other's concluding observations, they have dealt with the same state and the same subject, closely connected in time, concluded there were different factual conditions, and sent discordant signals to the same state.

Despite the fact that states parties voice considerable criticism of the quality of concluding observations, a fundamental limiting factor is the persons who write and approve them. States are responsible for the selection of treaty body members, and in the absence of failing to elect truly independent experts, are directly responsible for the quality of concluding observations. This is reinforced by severe limitations on resources, largely controlled by states, which clearly have a direct impact on the treaty bodies' output.

The next stage in the development of concluding observations must be a deliberate effort to author conclusions of direct programmatic value. From the perspective of operational partners, the "value-added" from the input of the treaty bodies into the planning of reforms at the national level, is their collective expertise and understanding of the normative standards, and their insights gained from applying most of these standards to all UN member states. From the point of view of the treaty bodies, which are not operational entities, the "value-added" in taking programmatic considerations into account when drafting, is the tremendous increase in the potential for implementation.

RECOMMENDATIONS

Treaty Bodies

Concluding observations should be adopted in closed-session, with members uninhibited by observers.

The committee member charged with the development of an initial draft and with the incorporation of members comments into subsequent drafts, must be willing and able to undertake the task.

Concluding observations should be released as soon as they are adopted, which may be prior to the end of the session. All the treaty bodies, including CEDAW, should release concluding observations no later than the last day of the session.

The introductory remarks of governments should not be included in concluding observations (CEDAW).

The portions of concluding observations entitled "Positive Aspects" and "Factors and difficulties impeding implementation" have already been highly attenuated, are generally not useful, and should be discontinued.

Concluding observations should include the following information:

(a) introductory information

• due date of the report

• submission date of the report (and symbol number)

• dates and meetings at which the report was considered

• the kind of report (additional information, special, initial, more than one report)

• names and positions of the members of the delegation which presented it

• committee's views about the composition of the delegates in terms of their positions and expertise

• whether written replies to the list of issues were submitted (symbol number)

• (if so) when written replies were submitted (as compared to the consideration of the report)

• the level of cooperation of the delegation in responding to oral questions; whether questions were left unanswered

• promises made about the future submission of information

• how the report was prepared (by whom, over what period of time, consultations held)

(b) concerns and recommendations

• the concluding observations should then proceed directly to a consideration of concerns and recommendations

• concerns should be clearly connected to recommendations

• recommendations should concentrate on concrete proposals; they should be practical and as precise as possible

• recommendations should clarify whether they relate to policies, practices, or legislation and identify them

• recommendations should be grouped thematically and provide some indication of priorities

• recommendations based on concerns about human rights violations caused by third parties should clearly indicate the treaty bodies' expectations of government action and responsibility, and the foundation of these expectations

• references to any kind of external documentation required to understand the content of recommendations should be avoided; necessary references or substantive documentation referred to should be footnoted; the recommendations should be self-explanatory

(c) concluding information

• additional information promised and/or requested

• deadlines for the submission of additional information

• plans for the dissemination of the concluding observations

• processes the state should have for the dissemination of the concluding observations

• languages into which concluding observations should be translated

• processes or structures the state party should institute for follow-up to the concluding observations; concrete proposals can be made about best practices for ongoing monitoring of the treaty's implementation (including the preparation of the next report)

All interested parties should be given the concluding observations at the same time.

Government comments or responses on concluding observations should be posted on the web and published as separate documents at the discretion of the Committee. All such submissions received should be noted in the Annual Report.

Concluding observations finalized in the absence of the participation of a state party must be preceded by a careful compilation and analysis of information from a wide variety of sources. It will sometimes be preferable in the absence of the participation of a state party to identify only "preliminary" concluding observations, to be revisited upon full participation. (See supra section 3. The Consideration of a State Party's Record in the Absence of a Report)

OHCHR

Concluding observations should specifically be sent to all parties submitting information for the consideration of a state report. (It is not sufficient to post them on the web.) They should also be specifically sent to UN Country Teams, and the individuals responsible for implementing MOUs between OHCHR and UN agencies/organs.

23. Reservations

The major human rights treaties have achieved a very high degree of ratification. Every member state of the UN has ratified at least one of these treaties. More than 50% have ratified all six, and only 5% have ratified just one. These results, however, have come at a price. One of the largest costs has been the number and extent of reservations.

Taking reservations, declarations and interpretative statements together, (in view of the large number of declarations and interpretative statements that on a substantive basis are mostly likely reservations), the number of reservations is as follows:

CERD has 101, 36% of which are normative, from 43 (or 28% of) states parties,

CCPR has 181, 88% of which are normative, from 52 (or 35% of) states parties,

CESCR has 83, 82% of which are normative, from 39 (or 27% of) states parties,

CEDAW has 132, 76% of which are normative, from 49 (or 30% of) states parties,

CAT has 45, 38% of which are normative, from 28 (or 23% of) states parties,

CRC has 204, 99.5% of which are normative, from 61 (or 32% of) states parties.

CRC, the convention with the largest number of ratifications, is also the one with the largest number of normative reservations.

The number of general reservations and reservations to the central articles of the treaties, in particular, undercuts the apparent degree of universality inferred by statistics on ratification alone. An example of a recent ratification which clearly purports to affect the reach of the entire treaty to the state concerned is the following:

"In case of contradiction between any term of the Convention and the norms of Islamic law, the Kingdom is not under obligation to observe the contradictory terms of the Convention."

For the CEDAW Convention, for example, there are five general reservations, another eight normative general declarations and interpretative statements, twelve reservations to article 2, and twenty-five reservations to article 16, from 32 states parties. For the CRC Convention, there are nine general reservations, and fifteen normative general declarations and interpretative statements, from 18 states parties.

Some of the treaties themselves specifically refer to the impermissibility of reservations which are incompatible with the object and purpose of the treaty.

CERD, Article 20

1. The Secretary-General of the United Nations shall receive and circulate to all States which are or may become Parties to this Convention reservations made by States at the time of ratification or accession. Any State which objects to the reservation shall, within a period of ninety days from the date of the said communication, notify the Secretary-General that it does not accept it.

2. A reservation incompatible with the object and purpose of this Convention shall not be permitted, nor shall a reservation the effect of which would inhibit the operation of any of the bodies established by this Convention be allowed. A reservation shall be considered incompatible or inhibitive if at least two thirds of the States Parties to this Convention object to it.

3. Reservations may be withdrawn at any time by notification to this effect addressed to the Secretary-General. Such notification shall take effect on the date on which it is received.

CEDAW, Article 28

1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States at the time of ratification or accession.

2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted.

3. Reservations may be withdrawn at any time by notification to this effect addressed to the Secretary-General of the United Nations, who shall then inform all States thereof. Such notification shall take effect on the date on which it is received.

CRC, Article 51

1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States at the time of ratification or accession.

2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted.

3. Reservations may be withdrawn at any time by notification to that effect addressed to the Secretary-General of the United Nations, who shall then inform all States. Such notification shall take effect on the date on which it is received by the Secretary-General.

The question arises as to who will determine the compatibility of a reservation with the object and purpose of the treaty. The Human Rights Committee has expressed the view that "[i]t necessarily falls to the Committee to determine whether a specific reservation is compatible with the object and purpose of the Covenant. This is in part, because...it is an inappropriate task for States parties in relation to human rights treaties, and in part because it is a task that the Committee cannot avoid in the performance of its functions." Some states parties to the CCPR, specifically, the United States, United Kingdom and France objected to this determinative role for the Committee. A working paper of the Sub-Commission supported the Human Rights Committee: "...enforcement/monitoring bodies have the authority to determine what comes within their competence. That must, logically, include the authority to determine the validity of a reservation which would affect the scope of their competence or jurisdiction." Preliminary conclusions of an ILC study on reservations were more cautious: "The Commission also considers that...the monitoring bodies...are competent to comment upon and express recommendations with regard inter alia, to the admissibility of reservations by States, in order to carry out the functions assigned to them..." (Subsequently, critical comments on the ILC's preliminary conclusions were made by treaty bodies.) In theory, only the CERD Convention explicitly provides a formula for determining incompatibility: "a reservation shall be considered incompatible or inhibitive if at least two thirds of the States Parties to this Convention object to it."

It is clear that states parties have no intention of undertaking the role of determining the compatibility of a reservation with the object and purpose of the treaty themselves. If states were interested in becoming involved in evaluating each other's reservations, a far greater number would have exercised their right to object to reservations they believe to be incompatible with the object and purpose of the treaty. At the moment very few have done so. Moreover, such objections are also usually accompanied by the caveat that the objection does "not preclude the entry into force of the Convention between" the objecting state and the reserving state.

	number of objections made to reservations	percentage of reservations objected to	number of states making objections	number of states objected to
CERD	14	3%	14	3
CCPR	55	12%	12	9
CESCR	48	18%	8	4
CEDAW	231	45%	12	23
CAT	13	25%	6	3
CRC	433	42%	12	22

As the ILC Rapporteur pointed out, objections would both exert some pressure on states to withdraw reservations, and provide the treaty body with a source of guidance when considering the permissibility of a reservation.

While the legal authority of the treaty bodies to make final determinations as to whether specific reservations are compatible with the object and purpose of the treaty may be controversial, there is no doubt that their knowledge and experience of the treaties' purposes and objectives, leave them well placed to express their considered expert opinion on this subject. The treaty bodies have adopted different approaches to this potential. The Human Rights Committee and CEDAW have directly told states parties their views as to whether a reservation is incompatible with the object and purpose of the Convention. CRC has stated that the reservation "raises concerns as to its compatibility with the object and purpose of the Convention." CERD, CESCR, and CAT have not directly made a statement about the incompatibility of reservations with their respective treaties.

At the same time, there are a significant number of actors which have put on the record their concern with the compatibility of general reservations which, from the outset, purport to render ineffective all treaty rights which would require any change in national law. In effect, no international rights or obligations would thereby have been assumed. In addition to the limited number of objections which have been made, States parties and treaty bodies have made, for example, the following comments:

""[W]idely formulated reservations" which preserve complete freedom of action and render uncertain a State Party's obligations as a whole, e.g., that the Covenant is generally subordinated to the full unspecified range of national law. This, of course, would neither be appropriate nor lawful."

"...individual reservations may on occasion be so widely drawn as to cast doubt on whether their maintenance is compatible with being a Party to the Covenant."

"Articles 2 and 16 are considered by the Committee to be core provisions of the Convention....[R]eservations...which challenge the central principles of the Convention are contrary to the provisions of the Convention and to general international law. ...Reservations to articles 2 and 16 perpetuate the myth of women's inferiority and reinforce the inequalities in the lives of millions of women throughout the world. The Committee holds the view that article 2 is central to the objects and purpose of the Convention. ...[R]eservations to article 16, whether lodged for national, traditional, religious or cultural reasons, are incompatible with the Convention and therefore impermissible..."

"Reservations must be specific and transparent, so that the Committee, those living in the territory of the reserving State and other States parties may be clear as to what obligations of human rights compliance have or have not been undertaken. Reservations may thus not be general, but must refer to a particular provision of the Covenant and indicate in precise terms its scope in relation thereto."

To date, no state having such reservations, regardless of an explicit statement by the treaty bodies as to incompatibility, has ever faced a suggestion that the treaty is not in effect for the state party. On the contrary, in practice reservations have not precluded questions by the treaty body concerning the subject matter of the reservation. The treaty bodies have routinely sought to address the issue of reservations in their dialogue with a state party. States have not tended to refuse to answer such questions on the basis of the existence of reservations. Guidelines for reporting include requests for information specifically about reservations. The treaty bodies claim, furthermore, that the existence of reservations also has not inhibited their substantive comments in concluding observations.

The treaty bodies routinely request states to withdraw reservations. However, to date the rate of withdrawal has been poor. The percentages of reservations which have been withdrawn are:

CERD 13% (80% of which were procedural reservations)

CCPR 10% completely (5% of which were procedural) and 4% in part

CESCR 2%

CEDAW 26% completely (21% of which were procedural) and 5% in part

CAT 34% (83% of which were procedural)

CRC 6% completely and 1% in part