REPORT: Universality at the Crossroads

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.