Emerging Voices: Civil Society Organizations and the Committee on Enforced Disappearances–Towards Enhanced Participation in the Decision-Making Processes

[Marcos D. Kotlik is a Lawyer, University of Buenos Aires, School of Law –UBA– This post is a part of his ongoing research as a Masters in International Relations candidate and as a research scholarship holder at UBA.]

In 2000, Kofi Annan submitted that “decision-making structures through which governance is exercised internationally must reflect the broad realities of our times”. He explained that better governance is achieved through greater participation and accountability and argued that the international public domain must be opened up to many actors, including those from the private sector and civil society organizations.

A few years earlier, discussions had begun within the UN that would lead to the conclusion in 2006 of the International Convention for the Protection of All Persons from Enforced Disappearance (ICPAPED). During its negotiation process, non-governmental organizations played a very active role on many levels, most notably on the treaty’s design.

Whether we call them “NGOs”, “civil society organizations” or “human rights organizations” (I will not discuss the scope of each category), I propose to examine their involvement in the negotiation of the ICPAPED as an example of global policy networks. Further, I believe that this type of dynamic throughout the treaty’s design process enabled these organizations to ensure their own enhanced participation in the decision-making processes to come, mainly through their intervention before the Committee on Enforced Disappearances.

The design of the ICPAPED

The interest of civil society organizations on the issue of enforced disappearance has much to do with several countries’ tragic histories and can be traced some decades back (as depicted here (.pdf)by Manfred Nowak). After the UN General Assembly issued the Declaration on the Protection of All Persons from Enforced Disappearance in 1992 and the OAS General Assembly adopted the Inter-American Convention on Enforced Disappearance of Persons in 1994, human rights organizations focused their lobbying in favor of a draft UN Convention.

In 1998, the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the UN Commission on Human Rights approved the draft Convention in its fiftieth session (.pdf). Resolution 1998/25 requested to “invite […] non-governmental organizations to provide comments on the draft convention” along with governments and intergovernmental organizations. In consequence, the OHCHR held a two-year long consultation process, and by the end of 2000 the Commission collected the comments of eight NGOs (see document 2001/69).

Civil society organizations continued to participate in the elaboration of the Convention, as reported between 2003 and 2006 by the Inter-sessional open-ended working group on a draft legally binding normative instrument for the protection of all persons from enforced disappearance, led by Bernard Kessedjian. Even without considering NGOs’ informal lobbying, these documents demonstrate how they participated in formal debates side-by-side with State delegations, issuing statements and submitting written proposals to modify the final text. The Convention still depended on its final approval by States, but the serious influence of NGOs cannot be ignored.

As early as 2000, Witte, Reinicke & Benner already explained here that “international organizations do at times act as norm entrepreneurs by using networks as platforms to advance norms in such areas as sustainable human development or human rights”. The design process of the ICPAPED suggests that the UN system was able to provide the formal governance structure in order to adopt the treaty, although nurturing an informal “coalition for change” (Annan).

It seems that the idea of different sectors coming together and collaborating “to achieve what none of the single actors is able to achieve on its own” was accomplished taking advantage of civil society’s “voluntary energy and legitimacy” and of the “enforcement and rule-making power and coordination and capacity-building skills” of states and international organizations. The main characteristics of global policy networks –as described by the former Secretary-General (.pdf)– emerged throughout the negotiation of the ICPAPED: a non-hierarchical process gave voice to civil society almost at every stage; it set a global policy agenda, framed debates and raised public consciousness, developing and disseminating knowledge at the universal level concerning enforced disappearance; it seemingly made it easier to reach consensus and negotiate agreements on new global standards; and it most definitely determined the creation of new kinds of mechanisms for implementing and monitoring those agreements. This last feature will be the focus of the next section.

The seed of enhanced participation

Global policy networks have been identified as a means to negotiate, set standards and coordinate resources, but also to implement existing international treaties. Thus, it is fair to assume that the actors involved in the adoption of a major human rights treaty could also be concerned –in advance– with the implementation phase. It might be logical for them to include mechanisms which ensure the network’s own survival within the framework of the treaty.

Despite similarities with other human rights treaties, in this case it seems as if civil society organizations really seized the opportunity to plant the seed of their own enhanced participation in the decision-making processes to come. The early practice of the Committee on Enforced Disappearances (CED) reinforces this view.

Article 26 of the ICPAPED established the CED’s mandate over several enforcement mechanisms which include the possible intervention of NGOs. Article 30, for example, provides that urgent requests “may be submitted […] by relatives of the disappeared person or their legal representatives, their counsel or any person authorized by them, as well as by any other person having a legitimate interest,”and Article 31 authorizes the CED to receive communications –with regards to States that recognize such competence– “from or on behalf of individuals.”  The highlighted wording seems to open the door to any national or international human rights organization.

In addition, Article 34 allows the CED to trigger a consultation process and to bring the matter to the attention of the UN General Assembly if it receives “well-founded indications that enforced disappearance is being practiced on a widespread or systematic basis”. This phrasing might be fairly interpreted as imposing no restriction on anyone’s possibility to submit such information. The same can be said of the in loco visits procedure established by Article 33, which may be activated by “reliable information indicating that a State Party is seriously violating the provisions of this Convention”.

These broad terms, however, may not be enough to affirm that the participation of civil society organizations within the ICPAPED’s enforcement mechanisms amounts to being a part of the CED’s decision-making process. The CED’s early practice, nevertheless, does point in that direction: during its first and second sessions, its third and fourth sessions and its sixth session, it held public meetings with NGO representatives, discussing several substantial and procedural issues.

But even more important is a six-page document (.pdf) entitled “The relationship of the Committee on Enforced Disappearances with civil society actors,” issued in December 2013 (it comes as no surprise that the text was open to comments from “all stakeholders” before its adoption at the CED’s fifth session).  It describes several areas where civil society organizations can “assist” the Committee, encouraging them to give input on general comments under its consideration, to report on specific violations of women’s and children’s rights, and on reprisals against those who cooperate with the CED.

The document also states “that civil society has a key role to play in assisting it in discharging its mandate effectively by, inter alia, providing at any time genuine, factual and focused information in relation to the different activities that the Committee may carry out in accordance with the Convention”. Special emphasis is put on the role of NGOs as information providers: i) at all formal and informal stages of Article 29’s State reporting process –a feature not established in the text of the treaty; ii) before, during and after in loco visits.

Taking NGOs seriously

The effort that national and international human rights organizations have made throughout the years in order to be heard could only be accurately described taking into account the insurmountable suffering of the victims they represent. It’s never been easy for them to be invited to the grown-ups table, where “real-life” is discussed by States.

A shift towards the idea of a collaborative system of global policy networks may be a window of opportunity. At first sight, the negotiation process of the ICPAPED seems like a good example of that. It also looks as if NGOs grasped the moment and extended the network on to the Convention’s implementation phase. The CED has given NGOs a great deal of help by recognizing them as valuable partners, highlighting their ability to provide accurate information on human rights violations. This is, in my opinion, worthy of acknowledgement.

It may be time to realize that civil society organizations –of course, with their own agendas– may play a more important role than we have been willing to accept so far. And it’s very likely that they will continue to claim such role. Probably States won’t like it, but perhaps it’s time for international lawyers to start taking NGOs seriously.