The UN Human Rights Treaty System: strengthening the system step by step in a politically charged context

October 8, 2007 - nr.57
Summary

Summary, conclusions and recommendations


In this advisory report the AIV has considered five questions put by the Government about the UN human rights treaty system.

Identification of the problems
The first question concerns problems that face both the treaty bodies and the reporting countries in relation to the main objective of the treaty bodies, namely monitoring observance by states of international human rights standards. Chapter I outlines the UN human rights treaty system and its weaknesses. On the basis of these observations the AIV makes several recommendations and draws several conclusions. The main ones are:

  • It is important to constantly study the interaction between the systems of standards under treaty law and national practices, as well as the need for further adjustments to the system of standards to meet the challenges of our time.
  • An important question is how compliance is monitored and what changes can be made or have already been made as a result of the treaties. Some states have become parties to the treaties due to international pressure rather than as expression of their political will. Often states have not accepted the right of individual complaint, and even where it has been accepted little use is made of it. This is partly due to lack of public awareness, the fact that decisions of treaty bodies are not legally binding and the relatively high costs of lodging a complaint.
  • It is states themselves that cause the human rights problems on which they have to report and answer to the international monitoring bodies. In consequence, states are sometimes unwilling to report (thereby causing large reporting backlogs), try to withhold essential information and argue that certain cases, although extremely relevant to the assessment of the human rights situation, are of a political nature and therefore need not be submitted to the monitoring body for assessment. Shadow reports by NGOs are an important counterbalance in this respect.
  • Human rights treaties have been concluded independently of each other in recent decades; the various treaty bodies each make their own demands. Organisational and substantive coordination among the different bodies should be strengthened.
  • Many problems have serious practical causes: the large number of reports expected of the states, shortage of meeting time and excessive pressure of work of many treaty bodies, insufficient support from OHCHR and overlaps between different treaty bodies causing duplication and late submission of reports. Moreover, the plenary discussion of reports sometimes detracts from the effectiveness of the procedure.
  • The AIV believes it is of great importance to remember that human rights must be safeguarded at national level. The operation of the treaty mechanisms must be assessed first and foremost in terms of the extent to which they contribute to this.

Reform initiatives
After identifying these problems within the current system, the AIV considered the question of the extent to which the proposals made to date provide a viable solution.

To answer this question the AIV briefly described the original objectives of the UN treaty system and examined the strengths and weaknesses of the current mechanisms. It then summarised the initiatives to improve the system. It referred in this connection to the 2002 report of the UN Secretary-General entitled Strengthening the United Nations, which proposed combining the various reporting obligations of the states under the human rights treaties into a single report for discussion by the different treaty bodies. In 2005 the UN Secretary-General launched two strategies: one for the medium term aimed at harmonisation, greater involvement of the countries concerned and streamlined reports, and the other for the longer term based on the idea of a Unified Treaty Bodies System.

The HCHR elaborated these proposals and suggested in 2006 the adoption of a system of a Single Unified Standing Treaty Body. The discussions on these proposals are proving very laborious and some problems in the treaty system remain unresolved. The AIV concludes that the current initiatives have not yet contributed substantially to resolving the treaty system’s problems.

A single treaty body?
The third question considered by the AIV is what options exist for far-reaching reforms and what would be their advantages and disadvantages.

The AIV concludes that doing nothing is not an option. In discussing the possible options in this report, the AIV takes the long term as the starting point.

Long term
The most far-reaching proposal is for a single standing treaty body. Different variants of this are conceivable, for example a single body with ‘chambers’. A single treaty body could have the merit of allowing the human rights situation in a given country to be assessed in a coherent manner by reference to integrated reports. This would also allow the adoption of a consistent approach to interpretating of existing treaty standards. If the members of the treaty body were appointed on a permanent, full-time basis, this would create a high-quality body that would always be available and could take action at any desired moment in the event of serious violations. It would also increase the body’s visibility and authority and make it more accessible to rights-holders. This higher public profile would increase the chance of intensive dialogue among the treaty body, the states parties, NGOs and other UN bodies. This is necessary because cooperation is at present fragmented and relatively unstructured and inefficient.

The AIV considers that the present international political climate gives cause for great concern. The initial reactions to the HCHR’s proposals were negative and the recently concluded negotiations on the procedure and methods of the newly instituted Human Rights Council have shown that there is a real risk that past achievements could easily be lost in the current international political situation. Nor is it at all certain whether the proposed amalgamation of the existing seven (and in the future ten) treaty bodies to form a single body would indeed provide a solution to the problems in practice. It is also unclear whether the specific interests and circumstances of the different groups of rights-holders (such as women, children and people with disabilities) would continue to be safeguarded if a single treaty body were to be established. Moreover, it would be very difficult to do justice to all relevant issues in a single system.

In summary, the AIV concludes that the proposal to create a single Unified Standing Treaty Body is not desirable even in the long term, always assuming it were feasible. This is why the AIV believes it is important to examine how more far-reaching and improved cooperation among the existing treaty bodies can be achieved in the short and medium term.

Short and medium term
The AIV considers that a number of changes should be considered in the short and medium term. The present treaty bodies should intensify their efforts to harmonise, coordinate and integrate the different aspects of their mandates. Consideration can also be given to the following measures: pursuing the highest possible degree of expertise, commitment and independence of the treaty bodies’ members; harmonising the bodies’ procedures and working methods; increasing the number of chairpersons’ meetings; developing an effective relationship with the Human Rights Council and strengthening cooperation with other relevant actors through OHCHR. Two more far-reaching proposals for the complaints procedures can also be considered. These are:

  • Amalgamating of the Human Rights Committee with the Committee on Economic, Social and Cultural Rights. This could reflect the indivisibility of all human rights at the institutional level. Another possibility would be to merge the Human Rights Committee with the Committee against Torture. Clearly, the mandate of the Committee Against Torture partly coincides with that of the Human Rights Committee. Although legal and other complications are admittedly bound to arise in both cases, they would be less farreaching than if a single treaty body were to be created.
  • From 2008, when all treaty bodies will meet in Geneva, all complaints under the existing complaints procedures will be received by OHCHR. In this sense OHCHR will act as a joint ‘post-box’ and as secretariat of all the treaty bodies. The possibility should be examined of having the working groups within the different treaty bodies which are involved in dealing with complaints meet in the same period in order to maximise the mutual benefit. As the number of complaints submitted to date has been relatively limited, it would be interesting to see whether such a procedure and more emphasis on publicity for OHCHR as a joint post-box could help raise the system’s profile, provide greater clarity for complainants, improve the handling of complaints and result in clearer case law. In the long term this could even lead to the establishment of a joint ‘complaints chamber’.

The Universal Periodic Review System
Finally, the AIV deals with the relationship between the new Human Rights Council and the Universal Periodic Review system, about which a decision was taken on 18 June 2007. The AIV has decided not to comment in detail at this stage on the UPR mechanism that has now been agreed. However, it does deal with a few important aspects of it, focusing on the relationship between the treaty bodies and this new mechanism.

The UPR will be conducted on a very broad normative basis and cover the entire spectrum of civil and political rights and economic, social and cultural rights, including the right to development, unilateral declarations (such as the pledges made when presenting candidature for election to the Human Rights Council) and commitments resulting from international humanitarian law. However, this choice of a normative basis does not mean that the same criteria can or will be applied in all cases: the ratification pattern of human rights conventions differs from state to state.

The UPR will be based on the information supplied by the country under review. In addition, OHCHR will make two compilations of information contained, for example, in reports by treaty bodies and by NGOs and national human rights institutions. The UPR will be conducted by a working group consisting of all members of the Human Rights Council and prepared by a group of three rapporteurs selected from the Council’s members. The results of the review will be presented to the Human Rights Council for further action. The report adopted by the Council may contain recommendations to the state concerned, indicating which recommendations the state concerned accepts. The state’s comments on the other recommendations will be noted. Provision is also made for certain follow-up measures, with the country under review being primarily responsible for implementing the recommendations adopted.

In the light of the deeply divided views on the design of the UPR system expressed in the Human Rights Council in the past year, the system that has been created would appear in theory to be reasonably effective, but clearly its implementation will in practice cause many political and other headaches (given that the 192 states are very different). Generally speaking, the AIV considers that the fact that in principle each member state of the UN must submit to a human rights review by other states is a major step forwards, although it would have liked there to have been a modest role for independent experts and/or leading NGOs in the assessment stage. The AIV notes with regret, however, that this proved unfeasible.

The AIV believes that serious account should be taken in the UPR system of the reports of the treaty bodies, in particular the concluding observations and General Comments or recommendations. This is important, but it does not mean that the same quantity of information can be supplied for all countries as not all countries have ratified all treaties. This is why the Working Group should in any event put the following questions, where relevant, to the country under review in the course of the UPR dialogue: why has the state concerned not ratified certain UN human rights treaties; why has it made and/or maintained reservations; why has it not fulfilled its reporting obligations; what measures has it taken to implement the concluding observations; why has it not yet accepted certain optional monitoring procedures (such as the individual complaints procedure and the investigation procedure); what arrangements has it made to comply with the decisions by treaty bodies on individual complaints, etc.? The UPR dialogue with states can in this way provide a unique opportunity for strengthening the human rights treaty system.

While the AIV also realises that states with a poor ratification record will thus be put on the defensive, it wonders whether the UPR system will be able to bring about any real and substantial change in this situation. The UN Charter and the Universal Declaration of Human Rights will serve as the main normative basis for the assessment of such states, and in some cases the findings of the non-treaty mechanisms such as special thematic and country rapporteurs can be used as a source of factual information about violations. For these and other reasons, the AIV concludes that it is of great importance for the Netherlands to maintain its offer to be one of the first countries to undergo the UPR. This can also create a precedent for future discussions in this context.

Treaty bodies and the Human Rights Council: final observations
The Human Rights Council will be the main political UN forum in which human rights across the board can be discussed in the years ahead. It is therefore of the utmost importance for the treaty bodies to have optimal access to the Human Rights Council. In an integrated and harmonised system, the rotating chair of the meeting of chairpersons of treaty bodies should have the opportunity at least once a year to debate with the Human Rights Council on problems and matters affecting all treaty bodies. In addition, the AIV recommends that the chairpersons of the various treaty bodies should also have the opportunity once a year to debate with the Human Rights Council about matters that are of special importance to them in the light of their specific mandate.

Finally, the AIV emphasises the desirability of working to achieve better cooperation and synergy between the treaty bodies and the Human Rights Council’s thematic rapporteurs. In many cases the thematic rapporteurs have mandates that partially overlap with those of one or more treaty bodies. They could lend added weight to the calls on states to comply with the treaty bodies’ concluding observations or their decisions in individual cases. Conversely, the information gathered by the rapporteurs and their analyses of this information are of direct importance to the treaty monitoring bodies and hence also to the UPR described above.

Advice request

Mr F. Korthals Altes
Chairman of the Advisory Council
on International Affairs
Postbus 20061
2500 Den Haag

 

Date     3 July 2006


The United Nations reform agenda proposed in 2002 by Secretary-General Kofi Annan is steadily taking shape, and the first session of the Human Rights Council provided for in that agenda took place on 19 June 2006 in Geneva. It is therefore essential for the other United Nations human rights instruments to be adapted to the new reality and, where possible, strengthened. It is of paramount importance that the reform of the system of United Nations treaty bodies should not lag behind, particularly since these are an important instrument in relation to the implementation at national level of international human rights standards. It is also vital to consider the relationship between the new Human Rights Council and the existing system of treaty bodies. Specific attention should be focused on the connection between the reporting by the various treaty bodies and the mechanism of the universal periodic review as envisaged by the Human Rights Council.

In the light of this, the Office of the High Commissioner for Human Rights presented its Concept paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body (HRI/MC/2006/CPR.1) at an informal meeting on 4 April 2006. The paper recommends the amalgamation as far as possible of the existing treaty bodies. However, such sweeping changes to the system would have far-reaching consequences. Although the Netherlands supports every effort made towards greater efficiency, it is concerned that improved cohesion should not be achieved at the expense of valuable elements of individual treaty bodies.

The problems confronting the individual treaty bodies are well known – and they themselves acknowledge them. In practice, they have insufficient capacity and are administratively under-resourced, which delays the reporting process. Moreover, because of the complex and overlapping reporting obligations, many states submit reports after considerable delay. The result is a reporting backlog which actually undermines the effectiveness of the instruments. There is a clear need for more substantive collaboration and better organisational coordination. Individual treaty bodies have their own methods and tend to duplicate each other’s work. This creates the double risk of overlap and lack of cohesion.

For several years, the treaty bodies themselves have been working on practical improvements. However, the progress to date has failed to provide lasting solutions to the problems. This gives sufficient cause for additional efforts to make the system more efficient and effective. The question is: what form should such efforts take? Reference has already been made to the concept paper published by OHCHR, which sets out the option of a unified standing treaty body. Although this is an initial proposal, leaving much that needs fleshing out in more detail, the basic outline is clear.

The member states of the United Nations endorse the importance of reforming the system within which the seven treaty bodies currently operate. Nevertheless, the OHCHR’s paper initially received a cautious welcome and is for the time being likely mainly to provoke questions. OHCHR has been urgently requested to draw up alternative approaches, and has agreed to produce supplementary studies on other options. The paper has been submitted to the Legal Advisor in New York for examination of its legal implications.

Within the EU context, the Netherlands will shortly have to develop its views on the reform of the system of treaty bodies. In this light, I would like to put the following questions to the Advisory Council:

  1. What problems do both the treaty bodies and the reporting states encounter in relation to the principal objective of the human rights treaty body system, namely to monitor implementation of international human rights standards?
  2. To what extent do the current initiatives (better coordination of work, regular consultation between the chairpersons etc.) succeed in addressing the problems facing treaty bodies?
  3. What options exist for more far-reaching reform, and what are the respective advantages and disadvantages of the options that have been identified? In your view which option would be preferable and why? What would be the best way of implementing your preferred option? Can a distinction be made between short-term and long-term options? (The more far-reaching options require more time, but that should not automatically rule them out.)
  4. Please give particular consideration to the advantages and disadvantages of establishing a unified standing treaty body as described in section V of the OHCHR’s paper.
  5. How does the Advisory Council view the relationship between the treaty bodies (in their present form and in the form to be proposed by the Advisory Council) and the new Human Rights Council, especially in the context of the universal periodic review?

In view of the documentation already available,1 brief answers to questions 1 and 2 will suffice. However, I would welcome more detail in your answers to questions 3 to 5. Member states may possibly be asked for their response at an intergovernmental meeting between 4 and 8 December. I would therefore appreciate your reply by 1 November 2006.

 

Bernard Bot
Minister of Foreign Affairs

_____________________

1 In this connection, the Advisory Council is referred to the Report of the Expert Workshop on Reform of United Nations Human Rights Treaty Monitoring Bodies, Nottingham, February 2006.
Government reactions

Mr. F. Korthals Altes
Chairman of the Advisory Council
on International Affairs
Postbus 20061
2500 EB  Den Haag

Date     12 November 2007
Re         Government response to the AIV advisory report "The UN human rights treaty system: strengthening the system step by step in a politically charged context"


Dear Mr Korthals Altes,

I am writing to present the government’s response to the AIV advisory report “The UN human rights treaty system: strengthening the system step by step in a politically charged context”. A copy of this letter has been sent to the Presidents of the House of Representatives and the Senate of the States General.

Introduction
On 6 November, I presented my policy memorandum “A life of human dignity for all: a human rights strategy for foreign policy”. In this strategy, I noted that the Netherlands attaches great importance to compliance with human rights standards and their implementation at national level. The treaty mechanisms have an essential role in this process. States submit treaty reports informing the treaty bodies about compliance with their international obligations. These bodies make recommendations in order to further promote the implementation by states of human rights standards. Optimising the effectiveness of the treaty mechanisms, therefore, is a key element of human rights policy.

The government broadly agrees with the AIV’s conclusions and recommendations. The UN human rights treaty system is an important instrument in the implementation of international human rights standards at national level. The Netherlands recognises the value of a strong set of instruments and is glad to contribute to the effective reform of the UN treaty system.

The government believes that strengthening the treaty bodies can best be achieved by making a number of changes in the short and medium-term. We would like to see more efficiency and effectiveness in the work of these bodies, but hopes that, in strengthening the coherence between the various organs, valuable expertise within the individual bodies will not be lost. I note with satisfaction that the government’s preference is echoed in the AIV’s report. The government shares the AIV’s view that the creation of a Single Unified Standing Treaty Body would not be desirable.

To promote the reform of the treaty bodies, and in so doing, contribute towards increased compliance with the human rights treaties, the Netherlands will organise a conference on this subject, preferably in the margins of a session of the Human Rights Council. In this letter, I will briefly discuss the reform of the system of treaty bodies, individual complaint procedures and the relationship between these bodies and the UN Human Rights Council.

UN treaty system
There are several problems associated with monitoring the implementation of human rights standards. The AIV’s report gives a useful overview of the issues confronting both the treaty bodies and the reporting countries. The problems facing the treaty bodies are twofold. On the one hand, not all states are party to all the human rights treaties, states are late in submitting reports or do not report at all on implementation of their treaty obligations, and the treaty bodies’ recommendations are not always followed. On the other hand, there are also problems with the working methods of the treaty bodies themselves. In practice they have too little capacity and too little administrative and financial support, and this leads to delays in dealing with reports. These factors undermine their effectiveness and therefore the effectiveness of the human rights instruments in general.

The Dutch government is urging other countries to ratify the main international human rights treaties. Dutch embassies are putting ratification of these treaties on the agenda, both bilaterally and through the EU, as part of the Netherlands’ political and human rights dialogues. If ratification has taken place we may, if requested, provide financial support to help countries implement these treaties  and the recommendations of the treaty bodies at national level.

The Dutch government is prepared to support NGOs in promoting the work of the treaty bodies and in producing shadow reports. The Office of the High Commissioner for Human Rights (OHCHR) has an important role to play here, and therefore a highly independent High Commissioner’s Office is of vital importance. For this reason, the Netherlands will remain one of the OHCHR’s largest donors.

The government shares the AIV’s conclusion that the creation of a single permanent treaty body would not be desirable. Furthermore, I consider the establishment of such a body to be unrealistic, whether in the short or long-term. It is important to preserve both the individuality and the specialised expertise of the different treaty bodies, while taking steps to increase the synergies between them.

The government will make efforts to further cooperation between existing treaty bodies by means of improved harmonisation, coordination and the integration of the different aspects of the bodies’ mandates. Such cooperation can and should be achievable within a short space of time. The AIV has made a number of useful suggestions to this end.

I fully support current initiatives to improve the efficiency and effectiveness of these bodies by strengthening the organisational and substantive coordination between them. Considering the fact that final responsibility for implementing human rights standards is held at national level, the continued interaction between treaty bodies and national judicial practice is of vital importance. Together with other like-minded donors, the Dutch government will, as part of its policy dialogue, urge the Office of the High Commissioner to make the necessary administrative and financial assistance available to the treaty bodies.

The amalgamation of a number of existing treaty bodies, as suggested by the AIV, is an option which should be investigated further. Clearly, such a move could present legal and other problems. While the government recognises that these may be less far-reaching than those associated with the creation of a single treaty body, the government’s preference at this time is for less radical, yet effective changes that can be implemented in the short term.

Individual right of complaint
The individual right of complaint can contribute significantly to the enforcement of human rights at national level. The government shares the AIV’s observation that only limited use is currently being made of the individual right of complaint. The government will urge other countries who do not already accept the individual right of complaint to do so, and to publicise this right among their populations.

The establishment of all treaty bodies in Geneva, and the management of a common post-box by the Office of the High Commissioner are welcome first steps in improving the efficient functioning of the individual complaint procedures. The AIV considers that it would be desirable to examine whether the working groups responsible for dealing with complaints can also meet in Geneva. The government agrees that such a step could lead to a more intensive exchange of expertise and greater consistency in the handling of complaints. At the same time, there is a risk that the workload associated with the OHCHR’s role as complaints secretariat for all bodies might result in delays in the handling of complaints. To achieve a greater streamlining of complaints procedures, the government’s preference would be for the establishment of a joint ‘complaints chamber’.

Relations with the UN Human Rights Council and the ‘Universal Periodic Review’
With the establishment of the Universal Periodic Review, the Human Rights Council now has a new instrument with which to regularly evaluate the human rights situation in every country. The ‘examination’ will be taken in the form of a working group, comprised of all 47 members of the Council. The working group will evaluate the human rights situation in a given country based on a variety of sources.

The government is of the opinion that the UPR system has the potential to offer added value to existing mechanisms for the protection of human rights, such as the treaty system. The government shares the AIV’s view that information from the treaty bodies, such as concluding observations, recommendations and general comments, should form an integral part of UPR working group discussions. This would also allow the Human Rights Council to closely assess the degree to which the treaty bodies’ recommendations regarding the implementation of human rights obligations at national level are actually being followed.

Contrary to a misunderstanding, there is a role for independent experts to play in the assessment stage of the UPR. In the UPR decision-making process, it was agreed that the working group discussions would be prepared by a troika of rapporteurs, comprised of three members of the Human Rights Council. It is up to the countries involved to determine who will be included in the delegation representing the country at the UPR working group. Like other countries, the Netherlands is considering including independent experts in its delegation. The Netherlands is one of 16 countries that will be evaluated during the first session of the UPR working group in April 2008.

In closing, the government strongly endorses the AIV’s conclusion that, for the Netherlands, the Human Rights Council is the most important global forum in the human rights arena. The Dutch government’s efforts will remain focused on developing the Human Rights Council into an international body that can make a meaningful contribution to the protection of human rights worldwide. In doing so, the emphasis must remain on the implementation of human rights standards. The treaty bodies play a vital role in this process, and in this respect it is important that the Human Rights Council pays attention, and seeks solutions, to the problems facing these bodies. To this end, the Netherlands will organise a conference, preferably in the margins of a session of the Human Rights Council. It is also important that the chairs of the different treaty bodies meet annually to debate with the Human Rights Council. In this connection, the Council should focus its collective attention on the implementation of the treaty bodies’ recommendations as well as those of the thematic rapporteurs.

Yours sincerely,


Maxime Verhagen
Minister of Foreign Affairs of the Kingdom of the Netherlands

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