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Last Updated: 19 November 2007
ANZSIL CONFERENCE 2007
REFORM OF UNITED NATIONS HUMAN RIGHTS INSTITUTIONS: CURRENT DEVELOPMENTS- Enhancing the rule of law in international human rights treaty bodies
Kelisiana Thynne[1]
1. Introduction
Reform of the United Nations (UN) human rights system has been on the UN agenda for many years – indeed since 1989 – before many of the existing human rights mechanisms existed. In 2002 former UN Secretary-General Kofi Annan said ‘The promotion and protection of human rights is a bedrock requirement for the realization of the Charter’s vision of a just and peaceful world.’[2] He went on to say ‘The existing treaty bodies and human rights mechanisms and procedures constitute a large and intricate network. The growing complexity of the human rights machinery and the corresponding burden of reporting obligations strain the resources of Member States and the Secretariat. As a result, the benefits of the current system are not always clear.’[3] He cited the reporting demands on states parties and the disparate nature of the obligations as reasons for the perceived ineffectiveness of the UN human rights system. He also called for greater cohesiveness in responses, so as to avoid or diminish fragmentation of international systems and law.
The current treaty body system does not uphold the rule of law as well as it might. Further, fragmentation of the international human rights system is reflected in the disparate nature of the rights and the increasing specificity of the treaties and UN treaty bodies and has been the subject of a recent UN International Law Commission (ILC) paper.[4]
In his 2005 report ‘In larger freedom’ the former Secretary-General reaffirmed the importance of the rule of law and human rights in enhancing the lives of all people, not only the weak and vulnerable.[5] Meeting the Secretary-General’s challenges states in the General Assembly 2005 UN World Summit to celebrate 60 years of the United Nations (UN) ‘determined to reinvigorate the intergovernmental organs of the United Nations and to adapt them to the needs of the twenty first century’. The Summit resolved to create multilateral solutions to problems in four key areas, including human rights and the rule of law.
The first step in that process of ensuring that the human rights system is effective and the rule of law is upheld throughout the system as well as internationally was to reform the Charter system – the Commission on Human Rights in particular. The next step in the process will be the reform of the UN treaty bodies. In this paper, I discuss how the reform of the UN human rights treaty bodies enhances the rule of law in international human rights, and attempts to prevent fragmentation. I look at the UN human rights system briefly, why reform of the treaty bodies is necessary, the history of treaty body reform and the current proposals for reform. I conclude that reform must take place along the lines proposed by both the former Secretary-General and current High Commissioner for Human Rights in order for the human rights system to function effectively in a harmonised manner and uphold the rule of law.
2. Brief overview of UN human rights systems
The UN system is divided to into two systems: the Charter system and the treaty-body system, and the Office of the High Commissioner for Human Rights (OHCHR) provides both systems with secretariat support. In this paper, I shall focus on reform of the treaty body system, but it is useful to distinguish between the two systems briefly.
A. The Charter system
Under the UN Charter and under the auspices of the Economic and Social Council (ECOSOC), the Commission on Human Rights was created in 1946. In her Plan of Action, the UN High Commissioner for Human Rights, Louise Arbour, agreed that the Commission on Human Rights ‘has been accused of selectivity, double standards, politicization, and obstructive regional divisions. Enforcement mechanisms are weak, further undercutting the credibility and effectiveness of the system.’[6]
In 2006, the Commission was replaced by the UN Human Rights Council,[7] as a subsidiary body of the General Assembly[8] and as part of the reforms proposed by the Secretary-General, the High Commissioner and the outcome of the 2005 World Summit.[9] The details of the Human Rights Council were left to the General Assembly to resolve, which they did just before the opening of the final Commission on Human Rights session in March 2006.[10]
The Human Rights Council met for the first time in July 2006. The Council’s role is to assume the roles of the Commission on Human Rights to a certain extent and subject to annual review[11] as well as to:
• Promote the implementation of human rights
• Be a forum for dialogue on thematic issues
• Contribute to the prevention on human right abuses
The High Commissioner had said that scrutiny of the actions of particular states was unsatisfactory and the Council should set up a system of peer-review so that all states submit themselves to review of their implementation of international human rights.[13] The system of ‘universal periodic review’ takes up that suggestion, but rules of procedure have yet to be developed for this review.
The UN special procedures, such as Special Rapporteurs on thematic issues[14] or Working Groups on particular issues,[15] come under the Charter system because they have their mandate under the Commission on Human Rights (and for the present the Human Rights Council).[16] Australia was a leading member of the Commission on Human Rights from 2003-2005, but had served for a total of 32 years on the Commission.[17] It is not currently a member of the Human Rights Council.
It is not the aim of this paper to discuss the Charter body reform in great detail – there has been a great deal of consideration of these reforms already,[18] and the reforms have only been in place one year.
B. The Treaty Body System
The treaty-body system is based on the now nine UN human rights conventions, all of which have an attached Committee to monitor implementation and enforcement of the treaty in question.[19] These Committees are known as ‘treaty bodies’. The Human Rights Committee, for example, monitors the International Covenant on Civil and Political Rights (ICCPR), by reviewing reports submitted regularly by states, and questioning the states closely on their reports and subsequent practices at oral hearings in Geneva. The Committee then produces Concluding Observations on the state’s progress and suggests areas where improvement should be made. States generally have to report to each committee to which they are a party every five years which usually means that they have at least one report a year to write. The OHCHR has said:
Consideration of the reports by the Committees, through constructive dialogue with States parties, allows individual States and States as a whole to exchange experience on the problems faced in implementation of the instruments ... [and] allows for international scrutiny, which underlines States’ responsibility and accountability for human rights protection.[20]
Some of these Committees can also hear individual communications from individuals who are victims of human rights abuses in their state, the relevant state has either submitted a declaration[21] or ratified the relevant Optional Protocol[22] as relevant.
The Committee against Torture can conduct inquiries into allegations of torture and conduct country visits under the terms of its Optional Protocol where a state has ratified the Optional Protocol.[23] The Committee on the Rights of People with Disabilities (when it is established) will also be able to conduct visits and inquiries into the treatment of persons with disability where a state has ratified the Optional Protocol.[24]
Australia is a party to the six main human rights treaties and was an original signatory to the Convention on the Rights of People with Disabilities. It accepts communications under the Optional Protocol to the ICCPR and under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).
3. Why reform of the treaty bodies is needed
The problems with the treaty body system have been documented since 1989, when Independent expert on enhancing the long-term effectiveness of the United Nations human rights treaty system, Philip Alston, was first commissioned to review the system. In his final report, in 1996, he found that:
(c) ... The approved meeting time of three of the committees has
... increased notably;
(d) The number of overdue reports has increased by 34 per cent and the delays experienced by States parties between the submission and examination of their reports have increased to the point where some States will wait almost three years before their reports are examined;
(e) The number of communications being processed under the various complaints procedures has greatly increased and existing backlogs are unacceptably high. ....[25]
The report shows that not only has treaty body reform and the efficiency and effectiveness of the treaty body system been an issue since 1996, but also that the same problems still exist to an even greater extent.
In her 2005 Plan of Action, the High Commissioner for Human Rights explained:
The problems with the current system are well documented, and there is a large degree of consensus on the basic defects. States find it onerous to report separately to different treaty bodies, often on very similar or overlapping issues (though agreement on an expanded core document would reduce this burden). Reports are delayed or, when submitted, are often inadequate, and there is insufficient time to consider them. The concluding observations adopted by the treaty bodies often lack the precision needed to guide reform efforts, and are too often given insufficient attention by States.[26]
The problems with the treaty bodies reflect the inherent problems in upholding the rule of law and in the fragmentation of the international law system. It is useful at this stage to consider how the lack of the rule of law and fragmentation are reflected in the UN human rights treaty system and its inherent problems.
A. The rule of law in international human rights law
In his report, ‘In larger freedom’, the former Secretary-General Kofi Annan said that by improving the rule of law, states needed to strengthen legal institutions and ensure justice for violations of international law, particularly humanitarian law.[27] These are two aspects of the rule of law. The rule of law in Western democracies, such as Australia, has traditionally meant that a government is bound by rules and citizens of that state should be able to predict ‘with fair certainty’ how that government will act in any particular set of circumstances and plan their actions accordingly.[28] In terms of the laws by which the government and its citizens are bound, they must be general, well publicised, prospective (that is not retrospective), clear, consistent, possible of performance, permanent, and strictly upheld.[29]
Human rights law is inextricably linked to the power of governments and their actions vis-à-vis their citizens. In the UN human rights system, governments are held accountable for their actions or omission either against citizens or in failing to protect citizens. Indeed in the UN, human rights and the rule of law are often referred to as part of the same theme.[30] Upholding human rights norms is essential to ensuring the rule of law and good governance. The UN human rights system already upholds one aspect of the rule of law by making states accountable. But the system itself must also uphold the principles of the rule of law. States must be held accountable for their actions, but they must be held accountable in a firm, fair, impartial way, with timely comments and thorough analysis. The laws by which governments are bound and the institutions which hold governments accountable for these rights should be consistent, general, able to be performed (and be realistic in terms of performance) and permanent.
There are now seven treaty bodies in existence and another two provided for in treaties that have not yet come into force.[31] More than 75 percent of states are parties to four or more of the UN human rights treaties.[32] States that are parties to a number of these treaties need to report every five years at least under each of the treaties. Australia, for example, must report to six committees, which is incredibly resource and time intensive. Particularly for a state such as Australia, with a federal system, consulting relevant government agencies at both Commonwealth and State and Territory levels is difficult and time-consuming, meaning that often reports are submitted late, such as with the reports under the ICCPR and International Covenant on Economic, Social and Cultural Rights (ICESCR).
The sheer volume of reports submitted to the Committees means that the Committees often are late in considering the reports and this means that they are forced to comment on information which is sometimes three years out of date.[33] The delay in their responses is also a result of the short and limited sitting times that the Committees are allocated. With almost universal ratification of the Convention on the Rights of the Child, if all 191 states parties reported to the Committee every five years, the Committee would be required to meet for two extra nine week sessions during five years (effectively doubling their workload over two years).[34] The Committee on the Elimination of All Forms of Discrimination against Women is allocated two weeks a year to deliberate. This has been extended by the General Assembly on several occasions, but the Committee’s time and resources are often stretched.[35] The Committee on the Rights of the Child and the Committee on the Elimination of All Forms of Discrimination against Women have had to create second Chambers to clear their backlog of reports. The Committee on the Rights of the Child has succeeded in doing so.[36] The Committee against Torture meets twice a year, but they have a backlog of reports which will take two extra years of work to get through.[37]
The standard of committees varies. Committee members are elected by states so they are not necessarily qualified[38] or impartial. All the Committee members are voluntary and part time. Almost all of them have fulltime jobs elsewhere. This limits their capacity to deal thoroughly with issues raised in state reports. Being human rights generalists often, experts on the Committees often go beyond their mandates and address issues that are not relevant to the particular treaty under which they are working. Similarly, Committee members often give greater weight to NGO comments and shadow reports than to state reports, forgetting that the Committees are instituted to monitor states implementation and consider state reports.[39] This creates at least a perception of bias, if not actual bias, against states. Further there is a perception that Committees often overlook welcome developments in states when criticising other less than satisfactory laws, polices and practices and forget that states are able to determine how they will implement their obligations under the relevant treaties.[40] They also fail to provide constructive suggestions for implementation of those rights in which the state is currently failing.[41] In her Plan of Action of 2005, the High Commissioner for Human Rights said, ‘The reporting process [under the various human rights treaties] should be seen as a means for States to assess achievements and identify implementation gaps.’[42] States should not be distracted from positive suggestions by annoyance at unfounded or non-researched allegations.
With the nature of the human rights in the UN system based on the International Bill of Rights (ICCPR, ICESCR, Universal Declaration on Human Rights and the two Optional Protocols to the ICCPR), there is considerable duplication of issues between the Committees[43] and, until recently, there was limited coordination between them. In reporting to the various Committees, not only do states have to reiterate the same issues over and over again, they must also provide all the background to the country and its government, as well as its implementation, monitoring and review of human rights in general.
The purpose of the treaty bodies is to monitor states’ implementation of the human rights treaties under which they are formed and to which the particular states are parties. The treaty bodies should uphold the basic principles of the rule of law which they enforce. By contrast, the treaty bodies are failing to sufficiently monitor performance through overloaded schedules and the delays, inefficiencies and ineffectiveness mean the rule of law is lacking. States are therefore not being held accountable for their abuses of human rights, but they are also not getting enough support in implementing their obligations and making changes to their laws, policies and practices so as to uphold human rights more effectively. The Concluding Observations provided are often not impartial; and little guidance as to how laws are to be interpreted and upheld by states. The lack of consistency in practice between the committees is the major concern with the treaty body system, leading to duplication of comments and interpretations of the law by Committees. This inconsistency also could mean greater fragmentation of human rights laws, with some obligations that are the same under each treaty applied in different ways depending on the focus of the Committee, creating even more difficultly for states to perform their human rights obligations.
B. Fragmentation of international human rights law
The situation in the international human rights system reflects the fragmentation of international law that has been the subject of a recent study by the International Law Commission.[44] Not only has international human rights law become its own special category of international law since the development of the different treaties under the UN system and regionally, but also with the creation of each new specific treaty, international human rights law is becoming fragmented.
Now there are nine human rights treaties – there is a speciality in the rights of the child, the rights of women, soon to be on the rights of people with disability, or on enforced disappearance, as well as the broader and more generalised rights under the ICCPR and ICESCR. This could be seen as a form of ‘functional differentiation’[45] – the creation of a new body and new treaty to perform a new function to deal with each specific need for further rights as they arise. With the creation of each new specificity or specialisation, international human rights law becomes more fragmented.
Although these categories of rights and specific areas all fall under the ambit of international human rights law, and are developed and their implementation is monitored by the UN human rights system under the OHCHR, new laws, new procedures, and new interpretations of both these aspects, whether they themselves are new or not, are being developed to implement each new treaty. This has obvious advantages in that the law is developed to address new issues as they arise,[46] and is focussing existing rights towards people who may have been lacking them. It poses some difficulties for implementation of human rights law as a whole as this fragmentation creates ‘the danger of conflicting and incompatible rules, principles, rule-systems and institutional practices.’[47] The conflicts in interpretation of rights could affect the way that states implement their human rights obligations[48] and their readiness to do so when they are faced with differing advice and preferences from the Committees.
There is already duplication of the issues, and differing interpretations given to similar rights in different treaties. The new treaties require their Committees to deal with similar issues to existing treaty bodies and states may get asked the same question from each of the treaty bodies at different times.[49] For example, the Disabilities Committee will have the opportunity to consider the right to water, education and housing already considered by the Committee on Economic, Social and Cultural Rights. The Committee on Enforced Disappearances will consider issues that fall within the mandate of the Human Rights Committee and Committee against
Torture. As the ILC has said:
Differing views about the content of general law create two types of problem. First, they diminish legal security. Legal subjects are no longer able to predict the reaction of official institutions to their behaviour and to plan their activity accordingly. Second, they put legal subjects in an unequal position vis-à-vis each other.[50]
These are concerns that have been raised in relation to the treaty bodies. The different bodies take different interpretations and put greater weight on some rights as opposed to others. States are therefore not able to predict what the reaction of a committee may be to certain implementations of human rights. Further, States may find confusion and lack of guidance in implementing rights. The other issue found with differing interpretations is that some states are treated more harshly by the committees than others in terms of their implementation of their obligations. This does not engender a positive feeling in those states so discriminated towards the committees.
There is a need for greater harmonisation of treaty body practices to alleviate the difficulties posed by fragmentation. Of course, as the ILC has said:
anything may be harmonized as long as the will to harmonization is present. Sometimes, however, that will may not be present, perhaps because the positions of the parties are so wide apart from each other - something that may ensue from the importance of the clash of interests or preferences that is expressed in the normative conflict, or from the sense that the harmonizing solution would sacrifice the interests of the party in a weaker negotiation position. In this respect, there is a limit to which a “coordinating” solution may be applied to resolve normative conflicts[51]
There is inherent conflict between the goals sought to be achieved in treaty body reform of harmonisation and the need to not lose the fragmentation or specificity which has been developed by the individual treaty bodies. This tension has been well identified by the OHCHR:
The specificities of each treaty must be preserved and their focus on specific rights, such as freedom from torture or racial discrimination, and the rights of particular rights-holders, such as children, women, and migrant workers and migrant workers, should not be diminished. At the same time, the interdependent and indivisible nature of the obligations set out in the treaties must be highlighted. Implementation of existing obligations of States parties, must be strengthened, but substantive obligations of States parties should not be affected or renegotiated.[52]
The human rights system has become fragmented for a purpose and each part of that system is functionally oriented,[53] this system is needed to address violations of particular rights in particular circumstances. In that respect, an element of fragmentation of a degree of ‘specificity’ is needed, but it is not needed to so great an extent. Some harmonisation is needed to give greater coherence to the human rights system, provide states with further guidance as to their obligations, and thus further protect the rights of individuals. It has also been suggested that harmonisation is needed to broaden the scope of consideration of rights, so that race or women’s rights are considered when also considering allegations of torture, for example.[54] There is such similarity between the committees and the treaty rights which they monitor that it should not be difficult to harmonise the practices and interpretations of the treaty body system.[55]
4. A brief history of reform
There has been discussion of reform in the UN and in particular of its human rights system for many years. Australia has been at the forefront of those discussions in many ways. In fact in 1989, before many of the now seven treaty bodies had been established, the then Secretary-General commissioned Australian Philip Alston to undertake a study into reform of the UN human rights treaty bodies. His findings reflect many of the developments which have once again entered the debates.
The fact that so many treaty bodies were coming into existence in the 1990s and that there were informal reforms in the UN by reason of the changing political systems of the world meant that the UN human rights reform debate died down for some time. Additionally, the 1993 World Conference and Vienna Program of Action was impetus for many more states to accede to the treaties that were in existence at that stage and there was a great sense of optimism in the treaty body system. The creation of the position of the High Commissioner for Human Rights, and subsequently the merging of all the UN human rights programs (except CEDAW at that stage) into the OHCHR in September 1997 also created greater resources, more staff and greater coordination of the different bodies.[56]
It was not until 2002 with the Secretary-General’s UN reform proposals that it once again became clear that the system had become once again inefficient and unwieldy,[57] some of the problems being the greater numbers of states parties to the treaties since 1993.[58] In 2005, former UN Secretary-General, Kofi Annan called for greater funding for the OHCHR so that it could better monitor and assist states implementation of human rights treaties.[59] He called for harmonisation of reporting guidelines to the treaty bodies[60] (reiterating the call he had made in 2002).[61] He asked the High Commissioner for Human Rights to draft a Plan of Action as to how the UN human rights mechanisms, both the Charter and treaty body systems, could be reformed to be more effective and efficient. The High Commissioner produced the Plan of Action in May 2005 which set out a plan for the strategic direction of the UN human rights bodies.[62]
Many states, including Australia, have expressed concerns with the treaty bodies, many of which are discussed above. Australia has actively promoted treaty body reform since 2000 when it undertook a review of the existing treaty bodies. In 2001 on the basis of this report, the Australian Government developed a treaty body reform initiative and conducted a series of workshops on reform of the treaty bodies.[63]
Following the impetus for reform, the World Summit celebrating the 60th anniversary of the UN resolved ‘to improve the effectiveness of the human rights treaty bodies, including through more timely reporting, improved and streamlined reporting procedures and technical assistance to States to enhance their reporting capacities and further enhance the implementation of their recommendations.’[64] The General Assembly resolved to strengthen the capacity of the OHCHR by doubling its budget and supporting its close cooperation with other UN bodies.[65] It also proposed reforms to both the Charter and treaty bodies.
5. Current proposals for reform
The OHCHR under the leadership of the High Commissioner, Louise Arbour, and spurred on by the Secretary-General has taken up the task of reforming its own bodies. Several proposals for treaty body reform have been developed, ranging from increasing the efficiency of existing treaty bodies through harmonised reporting procedures, to the more radical proposal of the High Commissioner of a single unified treaty body. As has been said ‘There are differing views as to whether the best way forward is to “tinker” with the current system or go for wholesale reform’.[66] Each of the proposals, despite the variance in their call for change, has the capacity to strengthen the rule of law within the UN human rights framework and ensure harmonisation.
A. Harmonised reporting guidelines
In his 2002 report, the former Secretary-General expressed concern about the ‘growing complexity of the human rights machinery and the corresponding burden of reporting obligations’[67] He proposed that the treaty bodies streamline their reporting requirements and that states be allowed to submit a single report summarising implementation of the rights in all the UN human rights treaties to which it is a party.[68]
Harmonisation has been able to occur primarily because the Committees have started coordinating practices and meeting regularly to discuss harmonisation issues. Since 1995, the Chairpersons of the Committees have met annually. Since 2002, following the Secretary-General’s report, an Inter-Committee meeting has been held annually, with focus on the harmonisation of the work practices of the various Committees. In 2003, a brainstorming session on reform of the human rights treaty bodies was held in Malbun, Liechtenstein attended by members of the treaty bodies, representatives of states, UN organs and NGOs.[69] The session worked on the basis of the background note prepared by the Secretariat.[70]
In 1991, the concept of a ‘core document’ was first developed. This was to be a general report with statistical and factual information about the state which could be transmitted to all Committees once to save duplication of this information and would only need to be resubmitted if something major changed.[71] In 2003, following the Malbun meeting, at which it was agreed that harmonised reporting guidelines should be developed,[72] it was proposed that an expanded core document be used by states which would be submitted to Committees along with a supplementary targeted report. The expanded core document would address not only general information on the state, but also the challenges faced by states in implementing and monitoring all its human rights obligations. The targeted supplementary reports would focus on responding to previous Concluding Observations, new developments in the implementation of the relevant treaty nationally and issues of concern with implementation that the state may have.[73] The core document could also include information on national human rights institutions in the relevant state and their monitoring role and the budget allocated to human rights and implementation projects.[74]
The Fifth Inter-Committee meeting formulated Harmonised Guidelines for reporting to treaty bodies in 2006. The common core document drafted in accordance with these guidelines should create the opportunity for states to
(a) Conduct a comprehensive review of the measures it has taken to harmonize national law and policy with the provisions of the relevant international human rights treaties to which it is a party;
(b) Monitor progress made in promoting the enjoyment of the rights set forth in the treaties in the context of the promotion of human rights in general;
(c) Identify problems and shortcomings in its approach to the implementation of the treaties; and
(d) Plan and develop appropriate policies to achieve these goals.[75]
When lodged with the relevant committee, it should provide a ‘basis for constructive dialogue’.[76] However, these are not comprehensive guidelines, because in order to draft the individual treaty specific report, states must have regard to the guidelines developed by each treaty body for their own requirements.[77]
There should be more chance for dialogue with such an approach as each appearance before a committee should build on the last appearance before a Committee.
Concluding observations from each committee should be consistent with those of the Committee that considered the core document before it, ensuring harmonised practices, consistent interpretations and clear guidelines as to the next steps a state must take in its implementation of all the human rights treaties. The targeted report for each treaty will also allow for more in-depth addressing of the major issues facing the implementation of the relevant treaty.
Australia has developed a common core document in reporting to the Human Rights Committee and Committee on Economic, Social and Cultural Rights. It contains general factual and statistical information about Australia, including the economy, environment, history and constitutional and political structure. It then addresses the general framework for the protection and promotion of human rights, including the acceptance of human rights norms and protection of rights in Australia. Finally it addresses the implementation in Australia of substantive human rights provisions common to all the treaties to which Australia is a party under themes including non- discrimination, equality before the law, effective remedies, procedural guarantees, participation in public life, right to life, right to liberty and security of the person, the right to work, the right to health and the right to education.
This very lengthy and comprehensive document attempts to focus on developments in implementation of rights since the last reports under the ICCPR and ICESCR. It attempts to provide consistency between reports and some degree of insight and self- evaluation of rights implementation. It should provide the two Committees to which it is initially directed with focussed information on which they can provide impartial comments, and should also reduce the duplication that there might be between the Committees’ responses. This should ensure harmonisation of the two Committee’s work, and, if the report is used in future reporting, such as with the forthcoming Convention on the Rights of the Child Report, it should ensure that that Committee also deals with similar information as the other Committees and provides consistent concluding observations. However, how it will be used in future reporting and how useful it will be in strengthening dialogue between the Committees and the Australian Government remains to be determined.
B. Single unified treaty body
In spite of movements towards reform and harmonisation of practices and increases in efficiency, the treaty bodies are still restricted in the changes that they are able to make.[78] In the 2005 Plan of Action, the High Commissioner put forward the suggestion of a single unified treaty body:
Since the Secretary-General’s call in 2002 for harmonized reporting requirements and the possibility of submitting a single report, treaty bodies have begun drafting harmonized guidelines on reporting. These should be finalized and implemented so that the treaty bodies can begin to function as a unified system. In the long term, however, it seems clear that some means must be found to consolidate the work of the seven treaty bodies and to create a unified standing treaty body.[79]
In 1989 the independent expert appointed to report on treaty body reform, Philip Alston, posited the idea of a single unified treaty body[80] stating that’
• the existing system is untidy
• it would standardise the procedures followed
• it would reduce the amount of documents
• it would ‘eliminate the need for multiple reports’
• it would reduce the reporting burden on states
• it would increase the credibility and visibility of the committee.[81]
He suggested that the new Committee would be an entirely new one ‘and would not necessarily bear any resemblance in terms of composition, expertise, structure or even methodology to any one of the existing committees.’[82] He recognised some of the considerations that would need to take place:
• what happens when one state is not a party to one of the conventions[84]
• the need to amend the treaties[85]
Since the reinvigoration of the debate by the High Commissioner’s proposal in her 2005 Plan of Action, there have been several proposals made as to how a single unified treaty body would work. The OHCHR produced a ‘Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body’.[86] The concept paper outlines the purpose behind the High Commissioner’s single unified treaty body:
The single unified treaty body will be a permanent body[88] comprised of human rights experts in all fields covered by the various existing treaties. It would receive a single report from each state on a regular basis. This approach would produce consistent and useful recommendations to states and avoid duplication of issues and it would prioritise action on particular areas of concern in a state.[89] The single treaty body would undertake all of the functions that the treaty bodies currently undertake, such as considering reports by states, receiving individual communications, conducting inquiries into situations of serious abuses, and drafting general comments or recommendations on interpretation of the various treaties’ provisions.[90]
The OHCHR proposes six different forms of operation for the single body. The first is the single body, with no chambers, dealing with all the issues itself. This would ensure that any interpretation of the treaties was consistent,[91] but would mean that the approach would be very general, and the treaty body would not be able to delve into specific aspects of discrimination or human rights, a current criticism of the system.[92]
The second is a single body with several chambers that deal with the same issues.[93] This would help the workload, but would still have the same problem of generalisation of issues and a lack of in-depth analysis of rights implementation.
The third is a single body with chambers that are run along ‘functional lines’, meaning that one chamber would consider reports, one would consider individual communications, and another would draft general comments.[94] This would reduce workloads and create expertise on the functional issues, but could create inconsistencies of approaches to particular rights. This appears to be the OHCHR’s preferred option.[95]
The fourth is having chambers along the lines of the existing treaties.[96] This approach would ensure consistency with the current system and would be the simplest to implement. It would also reduce the risk of generalisation, but on the other hand it is re-creating the same system as currently in miniature. This would create the same problems of duplication as the current system.
The fifth idea is to have chambers along regional lines, so that committee members would develop expertise in a particular region and the human rights challenges that are common to that region.[97] This could assist in dispelling suggestions of bias, and would also do away with the concern that there are harsh standards applied against developed as opposed to developing countries. It would create regional interpretations of rights rather than consistent international interpretations.[98]
The sixth proposal is to develop chambers along thematic lines.[99] The Committees have briefly considered the possibility of single reports that address themes rather than treaties;[100] this approach takes it one step further and adopts it for the single unified treaty body. It seems to me this is the best approach. One of the criticisms of the current system is that it is duplicative. Many of the rights in one treaty are found in other treaties – for example the right to be free from torture or cruel, inhuman or degrading treatment is in the Convention against Torture, the ICCPR, the Convention on the Rights of People with Disabilities and so on. All the treaties deal with discrimination in various forms. The Disabilities Convention, CEDAW and CRC deal with most civil and political rights as well as economic, social and cultural rights, albeit targeted to their particular circumstances. It would be better to have sub groups on broad themes, which also were comprised of experts on the broader issues of disability, racial, women and children discrimination. One criticism of this approach is that the themes could be hard to define,[101] but the Charter of Fundamental Rights of the European Union[102] groups its rights under broad themes – dignity, equality, freedoms, solidarity, citizen’s rights and justice – which could give a basis for a thematic approach in the chambers of a single unified treaty body.[103] To encompass the economic, social and cultural rights, the themes could be work rights (Articles 6-8 of ICESCR) and welfare rights (social security, education, health, adequate standard of living). This would be the most difficult proposal to adopt as it would involve a re- shaping of international thinking on human rights and would probably require a new treaty in which each right was given its place under a theme so that it could be developed from there. However, with such an overhaul of the system, many of the issues of inconsistency and duplication could be addressed.
Another unified treaty body proposal, aside from the OHCHR proposals, includes using the existing Human Rights Committee and Committee on Economic, Social and Cultural Rights to monitor rights under both these treaties.[104] The Human Rights Committee receives individual communications and could retain that role, looking at communications from all the different treaties, where a state has accepted communications.[105] This approach would be workable as 95 percent of all states have ratified both these treaties.[106] Both Committees have well-established reputations and they often address broader issues touching on the work of their counterpoints in children’s rights or race discrimination.[107] They also cover all the rights which are in the other treaties, albeit in a less specific, or more generalised, way. If these Committees were combined, it would ensure that the basic human rights issues were not fragmented and given varying interpretations and ensure a consistent approach to the rights and their implementation.
The OHCHR paper raises several legal issues which require careful consideration, that is, how the single unified treaty will be adopted and how it will interact with the existing treaties. The first proposal is that each human rights treaty be amended to incorporate a single unified treaty body in place of the existing body. The Disabilities Convention envisages this scenario already by providing for amendment of the international monitoring provisions without the necessary agreement by all states parties.[108] It would be more complicated with all the other treaties which would require universal acceptance of the amendment if dual systems are not to be created. The second proposal is to create a new Protocol which would amend all the other treaties and would have precedence by virtue of being a treaty that is later in time than the existing treaties. This would appear to be the preferable proposal, which would do away with the procedural challenge of amending each treaty.[109]
The problems with a unified treaty body are that the level and variety of expertise which is available in the current committees will not be available in a single body[110] (although the chamber system might do away with this concern). Further, not all states are parties to all the treaties.[111] States may not want to report to a body that could consider rights under all the treaties to which they are not a party. The concept of chambers along existing treaties could address this concern. The concern would be more apparent with the idea of thematic chambers, because these would necessarily entail a great overlap between treaties and the rights for which they provide.
The High Commissioner’s single unified treaty body proposal was the subject of discussion between human rights experts, OHCHR staff and selective state representatives in Malbun, Liechtenstein in July 2006.[112] Most representatives at that meeting were ‘highly critical’ of the proposal.[113] There is a fear that a unified body would lose the knowledge and focus of the individual committees on specific areas of rights, such as women’s or children’s rights,[114] and that these more specific issues would be overlooked by a generalist treaty body. The Committee on the Elimination of Discrimination against Women formulated a statement during its May-June 2006 meeting that ‘the “proposal to create a unified standing treaty body does not respond” to the challenges as described in the Concept Paper and that it “implies a serious risk to undermine the differentiation and specificity of human rights as enshrined in the seven major human rights treaties’.[115]
The Committees have consistently rejected the proposal for a single unified treaty body[116] on the basis that is would lack the current specificity in the issues[117] and would raise legal and political problems that would not be able to be resolved in the short term.[118] The Committee against Torture Chairperson has expressed the view that there is already one secretariat for the treaty bodies, which, with further coordination of practices,[119] could coordinate treaty body actions and ensure consistency of responses to state reports and individual communications. The committees tend to prefer the fragmentation of human rights rather than its harmonisation in most respects.
C. Other changes
The treaty bodies have been reluctant to engage in harmonisation of their working methods and reporting requirements. Nonetheless, the Inter-Committee meetings have continued to consider the issue of treaty body reform, in particular spurred on by their inherent dislike of the concept of a single unified treaty body.[120] They consider that the important issues in treaty body reform are:
• ‘harmonisation and coordination, but not standardisation’.[122]
There was agreement at the second inter-committee meeting that ‘[i]n light of the principle of the universality, indivisibility and interdependence of human rights, [there was a] need to ensure consistency in the examination of reports by all treaty
bodies.’[123] At the Working Group on Harmonisation in November 2006[124] the Committees expressed several alternatives to a single unified treaty body, which they consider would harmonise and integrate the treaty body system:
Other proposals have also been put forward that are worth examining in more detail.
I. A single body to deal with communications
The Committee on the Elimination of Racial Discrimination proposed that a single body be created to deal with all communications.[128] This would relieve the treaty bodies of dealing with both communications and state reports, not to mention general comments. A single body would ensure consistency in dealing with communications, and would be more efficient. Communications originate from a relatively small number of countries (of which Australia is high on the list) and do not have great acceptance internationally,[129] and they are not widely ratified. A single body could enhance the visibility of the communications procedures and ensure their greater effectiveness.[130]
The Committee against Torture agreed that this approach was worth exploring and suggested that some committee members from each of the committees that accept communications should have a trial of considering communications under different conventions to determine the feasibility and working methods of such a single body.[131] They had concerns to ensure that there are not ‘diverse approaches to [communications] jurisprudentially or institutionally varying among the committees’.[132] The Committee on the Rights of the Child, while not accepting individual communications itself, supports this proposal.[133]
The Human Rights Committee expressed concern about this proposal on the basis that there are legal and political issues which would be hard to resolve.[134] The representative of the Committee on the Elimination of Discrimination against Women also had concerns that the specificity of the issues under the various treaties would be lost. She noted that considering communications allowed each committee to further develop their individual understanding of the rights under their own treaties.[135] These concerns are valid, but if the next step were taken and a unified treaty body were created, they would not apply. The Working Group on Harmonisation resolved to consider the ‘substantive elements of a proposal for the creation of a unified body for communications’.[136]
II. Single report
The idea of a single report had been proposed, to enable states to draft one report dealing with all the issues in all the treaties to which they are a party. This would ensure consistency in the issues with which each committee had to deal and would be efficient for states in their reporting. However, such a report would have to be very broad and cover issues under each treaty in a generalised way. It would not provide a sufficient basis for discussion of particularly issues of concern under each treaty. It could still lead to duplication and fragmentation too, if each committee addressed different issues to arise out of it, or took different approaches to the same issues. It would only work if there was a single treaty body.
This idea was rejected at the 2003 Malbun meeting.[137] The Committees argued that
• the length of a single report to all treaty bodies would be unmanageable
• ‘the preparation of such a report could be complex, especially for federal States’
• reporting on new developments in each area of all the treaties would be
‘complex and resource intensive’.[138]
The Committees have further expressed concern that ‘a single report might jeopardize the “object and purpose of the Convention...”’[139] and that a single report might result in the marginalisation of ‘reporting on the implementation of specific rights or issues’.[140] They also expressed concern that the rights of groups under specific treaties such as children, women and now people with disability, would be excluded or marginalised.[141]
There was also concern that the single report could further encourage Committees to go beyond their mandates.[142] A single report while the committees are separate and deal with different treaties would not go any way to ensuring that states themselves monitored their obligations. Such a report would be broad and would only touch on general issues rather than the detail of implementation of particular rights to particular persons in the state. It would achieve some consistency and efficiency at the expense of state accountability. The Committees suggested that a single report might lead to ‘marginalisation of treaty specific issues’ and might lead to very long reports or ‘superficial and summary reporting’,[143] which would counteract any efficiency in the reporting method.
III. Concluding observations
The Committees decided to harmonise committee Concluding Observations, to the extent that they all follow the same pattern, so that states would be aware of where they needed to improve their implementation of the relevant treaties. The Concluding Observations would include ‘implementable recommendations’ and ‘concise and concrete recommendations ... for follow up’.[144] This would enhance the consistency and possible performance of the human rights and assist state practice in implementation. It was also suggested that treaty bodies should develop the capacity to ensure that factual information in their concluding observations is accurate and therefore adequately reflected the situation in the state. It was proposed that treaty bodies should refer to the concluding observations of other treaty bodies in their own concluding observations to highlight the links between the different human rights treaties and identify serious gaps in implementation across these treaties as well as ensuring that there was consistency in interpretation of similar rights in the various treaties.[145] The second inter-committee meeting agreed that the OHCHR should provide copies of the concluding observations of other committees to a committee that is examining the relevant state’s report.[146]
IV. Lists of Issues
The Committee against Torture has developed the new practice of asking states to submit a response to a List of Issues that the Committee would like addressed, based on concerns identified in previous concluding observations, reports by NGOs and special rapporteurs and research by the Committee itself rather than a full state report. The written response to the List of Issues would constitute the state’s report and it would be against this document that the state would be questioned when it appears before the Committee. This would shorten the time it would take to prepare a report, as the report would be targeted to these particular issues of concern to the Committee. It would also mean that the information would be up to date and focused on issues of real concern.[147] States would be held more accountable too because they will have to address issues of particular concern in the field of the relevant treaty rather than write about their implementation of every right. This will avoid duplication between reports because only particular issues will be addressed. This idea is not new; the Human Rights Committee proposed it in 2002 when they were not amenable to the revised core document, but wanted to find an alternative.[148] However, it has been met with some approval in this instance by other committees and states.
6. Conclusion
Currently the treaty body system is unwieldy. Too many reports need to be produced by states and in turn this means that the volume of reports, concluding observations and other documents related to reports increases at the OHCHR. This makes the treaty body system inefficient. The standard of committees, their expert members and the quality of the observations and comments that they issue varies considerably. There is considerable duplication of issues. Finally all these factors combined mean that the system is ineffective in monitoring human rights implementation and does not adequately uphold human rights or the rule of law within the human rights system. There is great danger that the international human rights system will succumb to the trend to fragmentation such that there is inconsistency in the application of basic principles of human rights law and therefore in their application.
The purpose of this paper has been to outline briefly the main reform proposals for the UN human rights treaty system, without drawing any conclusion as to how reforms will progress. The High Commissioner seems to be pushing for a single unified treaty body for example, without much support from others. Such a body will probably create different problems than currently exist in the UN human rights system. It is clear that the idea does not engender much support at the moment, and that the positions seem to be widely divided over fragmentation and harmonisation. There is a tension between speciality and generality in international human rights reform debates, between fragmentation and harmonisation. This issue needs to be resolved some way, or by taking a path between the two extremes to each some reform to the UN treaty body system that works and is acceptable to all parties.
What is agreed upon, however, is that some form of further reform needs to take place within the UN treaty bodies so that there is an enhancement of the rule of law. Such reform does not need to be as extreme as the unified treaty body, but it must involve greater harmonisation and an attempt to stop the fragmentation of international human rights law. This can only be achieved if the treaty bodies, which hold governments accountable for the performance of their human rights obligations, act in a consistent way and develop consistent approaches and interpretations to the law. The standards that they set and the interpretations that they give to international human rights law must be general and able to be performed and the treaty bodies should give clear guidelines to states as to how they should perform their human rights obligations in practice.
This is an exciting time for the UN human rights treaty system. There are many new proposals for reform put forward that are worth considering, and the momentum for change must be maintained. At the basis of the consideration of these proposals must be how they enhance the rule of law in the international human rights system and prevent fragmentation of international human rights law, two issues which are at the core of the debate on treaty bodies and their reform.
[1] Office of International Law,
Attorney-General’s Department, Canberra. The views expressed in this
paper are those of the author’s
and do not necessarily reflect the views
of the Government. This paper is not to be reproduced in any form except with
the permission
of the author:
kelisiana@yahoo.com.
[2]
‘Strengthening the United Nations: an agenda for further change’,
Report of the Secretary-General A/57/387, 9 September
2002, p 11, para
45.
[3] Id para
52.
[4] Fragmentation of
International Law: Difficulties arising from the Diversification and Expansion
of International Law’ Report
of the Study Group of the International Law
Commission, 18 July 2006,
A/CN.4/L.702.
[5] ‘In larger
freedom: towards development, security and human rights for all’ Report of
the Secretary- General, 21 March
2005, A/59/2005, paras 133,
140.
[6] The United Nations High
Commissioner for Human Rights, OHCHR Plan of Action: Protection and Empowerment,
May 2005, para 4: < http://www.ohchr.org/english/planaction.pdf
> (4 June
2007).
[7] General Assembly
Resolution 60/251, A/RES/60/251, 15 March 2006: <
http://www.ohchr.org/english/bodies/hrcouncil/docs/A.RES.60.251_En.pdf
> (29
April 2007).
[8] Id para
1.
[9] ‘In larger
freedom: towards development, security and human rights for all’ Report of
the Secretary- General, 21 March
2005, A/59/2005, paras 146, 181-183; World
Summit Outcome 2005, General Assembly Resolution 60/1, A/RES/60/1, 16 September
2005,
para 157.
[10] General
Assembly Resolution 60/251, A/RES/60/251, 15 March
2006
[11] Id para
6.
[12] Id para
5.
[13] The United Nations High
Commissioner for Human Rights, OHCHR Plan of Action: Protection and Empowerment,
May 2005, para 92.
[14] See, eg,
Special Rapporteur on adequate housing as a component of the right to an
adequate standard of living: <
http://www.ohchr.org/english/issues/housing/index.htm
> (4 June
2007).
[15] See, eg, Working
Group on Arbitrary Detention:
<http://www.ohchr.org/english/issues/detention/index.htm > (4 June
2007).
[16] The Human Rights
Council is mandated to review the working of the special procedures of the
Commission on Human Rights: UN General
Assembly resolution 60/251, A/RES/60/251,
15 March 2006; it has extended the mandate for one year pending a review: Human
Rights
Council resolution A/HRC/1/102, June
2006.
[17] Department of Foreign
Affairs and Trade, Human Rights Manual (3rd ed, 2004), 3.
[18] See, eg, Philip Alston,
‘Reconceiving the UN Human Rights regime: Challenges Confronting the New
Human Rights Council’
(2006) 7 Melbourne Journal of International Law
185.
[19] International
Convention on the Elimination of All Forms of Racial Discrimination adopted 21
December 1965, entered into force 4
January 1969; International Covenant on
Civil and Political Rights adopted 16 December 1966, entered into force 23 March
1976; International
Covenant on Economic, Social and Cultural Rights (see ECOSOC
resolution 1985/17 of 28 May 1985) adopted 16 December 1966, entered
into force
3 January 1976; Convention on the Elimination of All Forms of Discrimination
against Women adopted 18 December 1979, entered
into force 3 September 1981;
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted 10
December 1984, entered into force 26 June 1987;
Convention on the Rights of the Child adopted 20 November 1989, entered into
force
2 September 1990; International Convention on the Protection of the Rights
of All Migrant Workers and Members of Their Families adopted
18 December 1990,
entered into force 1 July 2003; International Convention for the Protection of
All Persons from Enforced Disappearances,
adopted 15 December 2006 (not yet in
force); Convention on the Rights of People with Disabilities, adopted 13
December 2006 (not
yet in
force).
[20] Concept Paper on the
High Commissioner’s Proposal for a Unified Standing Treaty Body, Report by
the Secretariat, 22 March 2006,
HRI/MC/2006/2: < http://www.ohchr.org/english/bodies/icm-
mc/docs/HRI.MC.2006.2.pdf > (8 June 2007), para
8.
[21] See, eg, Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
article 22.
[22] See, eg Optional
Protocol to the International Covenant on Civil and Political Rights, adopted 16
December 1966, entered into force
23 March
1976.
[23] Optional Protocol to
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, adopted 18 December
2002, entered into force 22 June
2006.
[24] Optional Protocol to
the Convention on the Rights of People with Disabilities, adopted 13 December
2006, not yet in force.
[25]
‘Effective functioning of bodies established pursuant to United Nations
human rights instruments: Final Report of Enhancing
the Long-Term Effectiveness
of the United Nations human rights treaty system’ Note by the
Secretary-General, Commission on
Human Rights 53rd Session,
E/CN.4/1997/7426 March 1996, para
7
[26] The United Nations High
Commissioner for Human Rights, OHCHR Plan of Action: Protection and Empowerment,
May 2005, para 96.
[27] ‘In
larger freedom: towards development, security and human rights for all’
Report of the Secretary- General, 21 March
2005, A/59/2005, paras 137.
138.
[28] FA Hayek, The Road
to Serfdom (1946) 54.
[29]
J W Harris, Legal Philosophies (2nd ed,
1997), 154.
[30] See, eg,
World Summit Outcome 2005, General Assembly Resolution 60/1, A/RES/60/1, 16
September 2005, para 119.
[31]
International Convention for the Protection of All Persons from Enforced
Disappearances, adopted 15 December 2006 (not yet in force);
Convention on the
Rights of People with Disabilities, adopted 13 December 2006 (not yet in
force).
[32] Harmonized
guidelines on reporting under the international human rights treaties, including
guidelines on a common core document
and treaty-specific documents, Fifth
Inter-Committee Meeting of the human rights treaty bodies, 19-21 June 2006,
HRI/MC/2006/3, para
12.
[33]
Concept Paper on the High Commissioner’s Proposal for a Unified Standing
Treaty Body, Report by the Secretariat, 22 March 2006,
HRI/MC/2006/2, para
18.
[34] ‘Methods of work
relating to the State reporting process: Background document prepared by the
secretariat’, Second inter-Committee
meeting of the human rights treaty
bodies, 18-20 June 2003, HRI/ICM/2003/3, para
13.
[35] Hanna Beate
Schöpp-Schilling, ‘Treaty Body Reform: The Case of the Committee on
the Elimination of Discrimination against
Women’ (2007) 7 Human Rights
Law Review 201, 216.
[36]
‘Committee on the Rights of the Child holds informal meeting with states
parties on methods of work’ UN Press Release,
1 February
2007.
[37] ‘Committee
against Torture holds meeting with states parties’, UN Press Release, 15
May 2007.
[38] Rachael Lorna
Johnstone, ‘Cynical savings or reasonable reform? Reflections on a single
unified UN human rights treaty body’
(2007) 7 Human Rights Law Review
173, 187.
[39]
‘Effective implementation of international instruments on human rights,
including reporting obligations under international
instruments on human
rights’ Note by the Secretariat, 5 September 2003, A/58/350, para
43.
[40] Schöpp-Schlling,
above n 35, 203.
[41] Michael
O’Flaherty, ‘The Concluding Observations of United Nations Human
Rights Treaty Bodies’ (2006) 6 Human Rights Law Review 27,
44-45.
[42] The United Nations
High Commissioner for Human Rights, OHCHR Plan of Action: Protection and
Empowerment, May 2005, para
95.
[43] ‘Methods of work
relating to the State reporting process: Background document prepared by the
secretariat’, Second inter-Committee
meeting of the human rights treaty
bodies, 18-20 June 2003, HRI/ICM/2003/3, para
28.
[44] ‘Fragmentation of
International Law: Difficulties arising from the Diversification and Expansion
of International Law’
Report of the Study Group of the International Law
Commission, 18 July 2006,
A/CN.4/L.702.
[45]
‘Fragmentation of International Law: Difficulties arising from the
Diversification and Expansion of International Law’
Report of the Study
Group of the International Law Commission, Finalised by Martti Koskenniemi, 13
April 2006, A/CN.4/L.682, para
7.
[46] See ‘Fragmentation
of International Law: Difficulties arising from the Diversification and
Expansion of International Law’
Report of the Study Group of the
International Law Commission, 18 July 2006, A/CN.4/L.702, para
9.
[47]
Ibid.
[48]
Ibid.
[49] Concept
Paper on the High Commissioner’s Proposal for a Unified Standing Treaty
Body, Report by the Secretariat, 22 March 2006,
HRI/MC/2006/2, para
17.
[50] Fragmentation of
International Law: Difficulties arising from the Diversification and Expansion
of International Law’ Report
of the Study Group of the International Law
Commission, Finalised by Martti Koskenniemi, 13 April 2006, A/CN.4/L.682, para
52.
[51] Id para
42.
[52] Concept Paper on the
High Commissioner’s Proposal for a Unified Standing Treaty Body, Report by
the Secretariat, 22 March 2006,
HRI/MC/2006/2, para
7.
[53] ‘Fragmentation of
International Law: Difficulties arising from the Diversification and Expansion
of International Law’
Report of the Study Group of the International Law
Commission, Finalised by Martti Koskenniemi, 13 April 2006, A/CN.4/L.682, para
133.
[54] Johnstone, above n 38,
185, 194.
[55] See
‘Fragmentation of International Law: Difficulties arising from the
Diversification and Expansion of International Law’
Report of the Study
Group of the International Law Commission, Finalised by Martti Koskenniemi, 13
April 2006, A/CN.4/L.682, paras
277-278.
[56] The United Nations
High Commissioner for Human Rights, OHCHR Plan of Action: Protection and
Empowerment, May 2005, para
97.
[57] ‘Strengthening the
United Nations: an agenda for further change’, Report of the
Secretary-General A/57/387, 9 September
2002, p 12, para 52; Michael
O’Flaherty and Claire O’Brien, ‘Reform of the UN Human Rights
Treaty Monitoring Bodies:
A Critique of the Concept Paper on the High
Commissioner’s Proposal for a Unified Standing Treaty Body’ (2007) 7
Human Rights Law Review 141,
154.
[58] Letter dated 13 June
2003 from the Permanent Representative of Liechtenstein to the United Nations
addressed to the Secretary-General,
A/58/123, Annex, para
5.
[59] ‘In larger freedom:
towards development, security and human rights for all’ Report of the
Secretary- General, 21 March
2005, A/59/2005, para
145.
[60] Id para
147.
[61] ‘Strengthening
the United Nations: an agenda for further change’, Report of the
Secretary-General A/57/387, 9 September
2002, pp 12-13, para
54.
[62] The United Nations High
Commissioner for Human Rights, OHCHR Plan of Action: Protection and Empowerment,
May 2005.
[63] ‘Methods of
work relating to the State reporting process: Background document prepared by
the secretariat’, Second inter-Committee
meeting of the human rights
treaty bodies, 18-20 June 2003, HRI/ICM/2003/3, para 26; see also Reform of the
UN Treaty Bodies, Department
of Foreign Affairs and Trade and
Attorney-General’s Department, 10 March 2006:
<http://www.dfat.gov.au/hr/treaty_body_reform_090306.html>
(5 June
2007).
[64] World Summit Outcome
2005, General Assembly Resolution 60/1, A/RES/60/1, 16 September 2005, para
125.
[65] Id para
124.
[66] Isobelle Jaques, Report
on Wilton Park Conference WP805, ‘How to Advance the Human Rights
Agenda’ (20-22 January 2006),
Wilton Park, 23 February 2006, para
12.
[67] ‘Strengthening the
United Nations: an agenda for further change’, Report of the
Secretary-General A/57/387, 9 September
2002, p 12, para
52.
[68] Id para
54.
[69] Letter dated 13
June 2003 from the Permanent Representative of Liechtenstein to the United
Nations addressed to the Secretary-General,
A/58/123.
[70] See ‘Methods
of work relating to the State reporting process: Background document prepared by
the secretariat’, Second
inter-Committee meeting of the human rights
treaty bodies, 18-20 June 2003,
HRI/ICM/2003/3.
[71] See
Compilation of Guidelines on the Form and Content of Reports to be submitted by
states parties to the international human rights
treaties, Report of the
Secretary-General, HRI/GEN/2/
Rev.1
[72] Letter dated 13 June
2003 from the Permanent Representative of Liechtenstein to the United Nations
addressed to the Secretary-General,
A/58/123, para
16.
[73] See ‘Effective
implementation of international instruments on human rights, including reporting
obligations under international
instruments on human rights’ Note by the
Secretariat, 5 September 2003, A/58/350, para
39.
[74] Letter dated 13 June
2003 from the Permanent Representative of Liechtenstein to the United Nations
addressed to the Secretary-General,
A/58/123, para
33.
[75] Harmonized
guidelines on reporting under the international human rights treaties,
including guidelines on a common core document and treaty-specific
documents, Fifth Inter-Committee Meeting of the human rights treaty bodies,
19-21 June 2006, HRI/MC/2006/3, para
9.
[76] Id para
11.
[77] Schöpp-Schlling,
above n 35, 208.
[78] Report of
the Expert Workshop on Reform of United Nations Human Rights Treaty Monitoring
Bodies, Senate Chamber, University of Nottingham,
11-12 February 2006,
4.
[79] The United Nations High
Commissioner for Human Rights, OHCHR Plan of Action: Protection and Empowerment,
May 2005, para 99.
[80]
‘Effective implementation of international instruments on human rights,
including reporting obligations under international
instruments on human
rights’ Note by the Secretary-General, General Assembly, A/44/668, 8
November 1989, p 8, para 30, pp 68-69,
paras
179-181.
[81] Id p 68, para
179.
[82] Id p 68, para
180.
[83] Id p 72, para
190.
[84] Id p 71, para
188
[85] Id p 73, para
193.
[86] Concept Paper on
the High Commissioner’s Proposal for a Unified Standing Treaty Body,
Report by the Secretariat, 22 March 2006,
HRI/MC/2006/2.
[87] Id para
6.
[88] Id para
32.
[89] Id paras 27, 28,
30.
[90] Id paras
46-58.
[91] Id para
40.
[92] Id para
59
[93] Id para
41.
[94] Id para
42.
[95] O’Flaherty
and O’Brien, above n 57,
160
[96] Concept Paper on
the High Commissioner’s Proposal for a Unified Standing Treaty Body,
Report by the Secretariat, 22 March 2006,
HRI/MC/2006/2, para
43.
[97] Id para
45.
[98] Id para
45.
[99] Id para
44.
[100] ‘Methods of
work relating to the State reporting process: Background document prepared by
the secretariat’, Second inter-Committee
meeting of the human rights
treaty bodies, 18-20 June 2003, HRI/ICM/2003/3, para 43
(b).
[101] Concept Paper on the
High Commissioner’s Proposal for a Unified Standing Treaty Body, Report by
the Secretariat, 22 March 2006,
HRI/MC/2006/2, para
44.
[102] Charter of
Fundamental Rights of the European Union, Official Journal of the European
Communities, 18 December 2000,
2002/C364/01.
[103] Report of
the Expert Workshop on Reform of United Nations Human Rights Treaty Monitoring
Bodies, Senate Chamber, University of Nottingham,
11-12 February 2006,
8.
[104] See O’Flaherty
and O’Brien, above n 57,
152.
[105] Jaques, above n 66,
para 13.
[106]
Ibid.
[107] Report
of the Expert Workshop on Reform of United Nations Human Rights Treaty
Monitoring Bodies, Senate Chamber, University of Nottingham,
11-12 February
2006, 7.
[108] Convention
on the Rights of People with Disabilities, article
47.
[109] Other legal
methods of creating an single unified treaty body have been explored in Michael
Bowman, ‘Towards a Unified Treaty
Body for Monitoring Compliance with UN
Human Rights Conventions/ Legal Mechanisms for Treaty Reform’ (2007) 7
Human Rights Law Review
225.
[110] Concept Paper on
the High Commissioner’s Proposal for a Unified Standing Treaty Body,
Report by the Secretariat, 22 March 2006,
HRI/MC/2006/2, para
59.
[111] Id para
60.
[112]
Chairperson’s summary of a brainstorming meeting on reform of the
human rights treaty body system, Triesenberg, Liechtenstein, 14-16 July
2006, Annex to Implementation of General Assembly Resolution 60/251, Letter
dated
18 September 2006 from the Permanent Mission of Liechtenstein to the
United Nations Office at Geneva addressed to the High Commissioner
for Human
Rights, A/HRC/2/G/5, 25 September
2006.
[113]
Schöpp-Schilling, above n 35,
209.
[114] Id
209-210.
[115] Id
210.
[116] ‘Methods of
work relating to the State reporting process: Background document prepared by
the secretariat’, Second inter-Committee
meeting of the human rights
treaty bodies, 18-20 June 2003, HRI/ICM/2003/3, para 21
(b).
[117] See, eg,
‘Committee on Protection of Rights of Migrants Discusses Treaty Body
Reform’ UN Press Release, 25 April
2007.
[118] Report of the
Working Group on the Harmonisation of Working Methods of Treaty bodies, Geneva,
27-28 November 2006, HRI/MC/2007/2,
paras 4,
7.
[119] ‘Committee
against Torture holds meeting with states parties’, UN Press Release, 15
May 2007.
[120]
Schöpp-Schilling, ‘above n 35,
210.
[121] ‘Methods
of work relating to the State reporting process: Background document prepared by
the secretariat’, Second inter-Committee
meeting of the human rights
treaty bodies, 18-20 June 2003, HRI/ICM/2003/3, para
21.
[122] Report of the Working
Group on the Harmonisation of Working Methods of Treaty Bodies, Geneva, 27-28
November 2006, HRI/MC/2007/2,
para
10.
[123] Report of the second
inter-committee meeting of human rights treaty bodies, Annex I to
‘Effective implementation of international
instruments on human rights,
including reporting obligations under international instruments on human
rights’ Note by the Secretariat,
5 September 2003, A/58/350, para
26.
[124] Report of the Working
Group on the Harmonisation of Working Methods of Treaty Bodies, Geneva, 27-28
November 2006,
HRI/MC/2007/2.
[125] Id para
6.
[126] Id paras 7,
22.
[127] Id para
19.
[128] Id para
5.
[129]
Ibid.
[130]
Ibid.
[131] Id para
8.
[132] Id para
8.
[133] ‘Committee on
the Rights of the Child holds informal meeting with states parties on methods of
work’ UN Press Release,
1 February
2007.
[134] Report of the
Working Group on the Harmonisation of Working Methods of Treaty Bodies, Geneva,
27-28 November 2006, HRI/MC/2007/2,
para
15.
[135] Id para
16.
[136] Id para
26.
[137] Letter dated 13 June
2003 from the Permanent Representative of Liechtenstein to the United Nations
addressed to the Secretary-General,
A/58/123, para
20.
[138] ‘Methods of
work relating to the State reporting process: Background document prepared by
the secretariat’, Second inter-Committee
meeting of the human rights
treaty bodies, 18-20 June 2003, HRI/ICM/2003/3, para
47.
[139] Id para
9(d).
[140] Id para
9(e).
[141] Id para
45.
[142] Id para
48.
[143] Report of the second
inter-committee meeting of human rights treaty bodies, Annex I to
‘Effective implementation of international
instruments on human rights,
including reporting obligations under international instruments on human
rights’ Note by the Secretariat,
5 September 2003, A/58/350, para
17.
[144] ‘Methods of
work relating to the State reporting process: Background document prepared by
the secretariat’, Second inter-Committee
meeting of the human rights
treaty bodies, 18-20 June 2003, HRI/ICM/2003/3, para
39.
[145] Report of the second
inter-committee meeting of human rights treaty bodies, Annex I to
‘Effective implementation of international
instruments on human rights,
including reporting obligations under international instruments on human
rights’ Note by the Secretariat,
5 September 2003, A/58/350, para
12.
[146] Id para
27.
[147]
‘Committee against Torture holds meeting with states parties’,
United Nations Press Release, 15 May
2007.
[148] ‘Methods of
work relating to the State reporting process: Background document prepared by
the secretariat’, Second inter-Committee
meeting of the human rights
treaty bodies, 18-20 June 2003, HRI/ICM/2003/3, para 9(a).
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