15 May Human Rights Treaty Body Review 2020 – Introducing the Integrated Treaty Body System as a More Ambitious Alternative
[Jan Lhotský is the head of the Czech Centre for Human Rights and Democracy. He also works as a lawyer at the Office of the Public Defender of Rights (Ombudsperson) and as a senior researcher at the Centre for International Law of the Institute of International Relations in Prague.]
The universal system of monitoring human rights obligations – the UN treaty bodies based in Geneva – has been in need of reform for decades. There were several waves of reform proposals during those years, but each time only minor improvements were adopted. The last such occasion was in 2014, when the General Assembly in the resolution 68/268 agreed on several practical adjustments; however, the most important proposals were avoided. Among those was the introduction of a fixed calendar that would enable the obligations of all states parties to be reviewed on a regular basis, or measures to be made to cope with the continuously growing size of the treaty body system.
Nevertheless, six years ago it was also decided that in 2020, the functioning of the treaty bodies would be reviewed again and new measures would be adopted. Currently, the negotiations have moved from Geneva to New York for their final stage. What are the difficulties for the treaty bodies? Why is it so hard to agree on their reform? And what would be the best shape of the treaty body system for the years to come?
The need for a reform
There are a number of deficiencies in the functioning of the committees, the structure of which was not created with a view of their working as one system. Taking into consideration the latest statistics, let’s point out two of them:
- Late reporting: only 19% of states report on time
- Backlog: the committees would need more than one year to clear the pending state reports and more than six years to clear the pending communications
Furthermore, there is a high reporting burden on states, a risk of diverging interpretations of the same issues by different treaty bodies and the process of nomination and the election of treaty body members also needs to be improved.
These problems are not new. In fact, the first attempts to improve the treaty bodies started back in 1988. From the older ones, I would like to draw the readers’ attention to the 2006 proposal of the High Commissioner to create a unified standing treaty body, as well as the 2012 report of the High Commissioner with a number of recommendations still valid today, including the introduction of the fixed calendar. From the recent proposals, the 2018 conclusions of the Geneva Academy are valuable, as well as the 2019 position of the Chairs of the treaty bodies. All these documents should be taken seriously and we should try to make the most of them.
Based on the above, one question arises: why is it so difficult to improve the treaty bodies if we have so many interesting proposals? I suggest there are two reasons. First, the treaties that created the current committees were drafted one after another with the idea of working as solitary bodies, not as one system. Therefore, it is not possible to come up with a very different set-up, as changing the existing treaties would be too difficult and it is basically unrealistic. Second, many of the good ideas need some form of financial support. And there are a number of states which in fact prefer having a weaker rather than stronger treaty body system. With this in mind, not supporting some of the financially more demanding measures serves the purpose well.
With regard to the 2020 treaty body review, my opinion is that the aim should be to agree on the shape of a reform (or as it is being called, ‘a review’), which would be based on the wording of the current treaties and would have two aims. First, it needs to enable the treaty bodies to function effectively under the growth of the system. This is because the amount of ratifications is growing, as well as the number of received communications and state reports – and the latter can be expected to grow more once the fixed calendar is introduced. Second, it needs to address the existing problems to a maximum extent. For this purpose, I believe we should pay attention to the institutional set-up of the system.
The proposal for the Integrated Treaty Body System
The treaty bodies have come to the point where the committee members can hardly pursue their work within their part-time (and voluntary) appointments. The defined maximum length of the current form of functioning is three sessions per year, each lasting for one month. There is no doubt that an introduction of the fixed calendar is needed in order to allow the committees to review the obligations of all states parties. In addition, the number of communications received is growing, currently by 80%. Sooner or later, I believe it will be necessary to admit that the growth of the system does not allow all committees to maintain their current part-time status.
Therefore, I suggest the following three measures:
1. Merging the Human Rights Committee with the Committee on Economic, Social and Cultural Rights
Integrating the ‘Covenant committees’ is possible without a need for a treaty amendment, merely by an ECOSOC resolution. The resulting committee would be a permanent body and include experts on both civil and political, as well as economic, social and cultural rights
2. Specialized treaty bodies would work in chambers
The ‘Convention committees’ would remain part-time in their current form and in order to cope with their workload, they would work in chambers.
3. Post-session meetings to ensure coherence
After each session of a specialized committee, a post-session meeting with the Human Rights Committee would take place in order to enhance the cooperation and uniform interpretation of human rights standards.
Integrating experts on civil and political, as well as on economic, social and cultural rights in one permanent body would have a number of advantages in terms of the coherence of such a body, which would speak with one voice. Due to the permanent form of the institution it could deal with the current backlogs, as well as with the growing workload. Specialized committees would provide for the necessary focus on specific areas of human rights. As they would regularly interact with the permanent ‘new’ Human Rights Committee, the treaty body system would act in an integrated manner.
I came up with the idea of an Integrated Treaty Body System in 2017 when I elaborated on the topic quite thoroughly in another paper. Therefore, for any deeper reasoning and argumentation, I would like to refer to this source. Nevertheless, I believe that one idea may come to the reader’s mind: the much greater costs. However, this does not seem to be the case. As in the current system, travel expenses and the DSA (per diem) of the committee experts are also costly, introducing a permanent Human Rights Committee would indeed be more expensive, but not twice as much. According to the calculation in the aforementioned paper, the annual costs of the whole system would increase from 50 mil. USD to some 75 mil. USD, i.e. roughly by 50%. This includes not only the new structure, but also implementing the fixed calendar.
There are a number of crucial proposals to improve the functioning of the treaty bodies – apart from the fixed calendar, full use should be made of a simplified reporting procedure, and work in chambers in any committee that needs to tackle its backlogs. Furthermore, both follow-up and the petitions unit should be strengthened, and the advantages of establishing a joint working group for communications ought to be duly considered. Moreover, the process of nomination and election of committee experts should be improved. Nevertheless, I believe that these topics have been widely discussed and if taken seriously, the 2020 outcome will include the appropriate improvements.
The way forward
The point of this post is to show that if we look at the treaty bodies as they are, we need to admit that they are not fit for permanent growth of the system. If we want to have a functional framework of human rights monitoring at the universal level, we need to enable the workload to be processed without creating backlogs that would take years to tackle. The proposed Integrated Treaty Body System is therefore future-oriented. It can be achieved without a need to amend the treaties and it would create a functional treaty body system in which the permanent Human Rights Committee would monitor the whole spectrum of human rights, whereas the specialized committees would maintain their valuable focus on different areas.
The previous improvements were adopted in 2014, but the more courageous ideas did not make it into the final resolution. Now in 2020 we have an opportunity to introduce a more ambitious alternative. Nevertheless, should any compromise solution prevail, the outcome should again specify that there will be a review of the treaty bodies in another six years. It seems that this is the periodicity for our windows of opportunity to improve the treaty body system. It will be up to us which one we fully use.