27 Nov A Little Less Conversation, a Little More Action Please – State Reporting and the Treaty Body Review 2020
[Dr. Jule Giegling is a Research Associate at the Ruhr-University Bochum as well as at Kümmerlein Rechtsanwälte mbB.]
On 14 September 2020 the Co-Facilitators of the General Assembly’s Treaty Body Review 2020 issued their final report on the findings of the approximately six month co-facilitation process concerned with the strengthening of the UN human rights treaty body system (accessible here). The Treaty Body Review, which was initiated by General Assembly Resolution 68/268, was concerned with the many challenges of the UN Human Rights Treaty Body System and intended to provide feasible solutions for the persistent problems. After lengthy discussions with a variety of stakeholders, the co-facilitators came to the conclusion that a follow-up process would be most appropriate to tackle the challenges of the system (Report, para. 83) and herewith, essentially, did not present a solution at all. The finding hereby blends in perfectly into the more than 30 years old process of recognizing and talking about the elephant in the room, in form of the persistent challenges the system faces, without providing solutions on how to get it out. One of the instruments under review was the monitoring instrument of state reporting, a vital but dysfunctional part of the system. Despite holding great potential for international human rights protection, this instrument is severely hampered to fulfill its object and purpose, also because, despite the existence of good proposals, a useful reform barely took place.
What is State Reporting?
State reporting is one of the oldest monitoring instruments in international law. First introduced by the League of Nations (Art. 22 Covenant of the League of Nations) and the International Labour Organisation (Art. 22 Constitution of the International Labour Organisation) in 1919, today it is enshrined in almost all human rights treaties within the United Nations system (and within this system also most prominently known) as well as regional human rights systems.
State reporting also found its way into the treaty system of a number of other international organizations, such as the Food and Agriculture Organization (Art. XI of the Constitution of the Food and Agriculture Organization) or the UN Educational, Scientific and Cultural Organization, Art. 29 Convention Concerning the Protection of the World Cultural and Natural Heritage), showing its wide usage and general popularity among monitoring instruments.
The idea behind reporting is simple: a state that is party to a relevant treaty periodically reports to an oversight committee about the steps taken to effectively implement the treaty provisions into its domestic system. The oversight committee is herewith provided with information of the situation “on the ground” and is able to recommend the way forward to the reporting state. In the UN Treaty Body system, reporting is rather complex with (generally) a six-step reporting cycle: State Report, List of Issues, Reply to List of Issues, Constructive Dialogue, Concluding Observations, Follow-Up Procedure. For approximately ten years a simplified version of said cycle, the simplified reporting procedure, has been used increasingly. It consists of five steps – List of Issues Prior to Reporting, Reply to the List of Issues, Constructive Dialogue, Concluding Observations, Follow-Up Procedure – and is one of the most useful outcomes of 30 years reform process. It established a more focused form of reporting and hereby decreased the overall workload that comes with reporting, therefore making it easier for states to meet their reporting obligations (as thoroughly assessed in the Report of the Working Group on the Simplified Reporting Procedure). Simplified reporting, however, was unable, however, to effectively strengthen the system as it remained entirely optional until in 2019 the Human Rights Committee decided to adopt it as their standard procedure on an opt-out-basis.
What makes state reporting somewhat unique compared to other monitoring instruments is its compulsory nature: by ratifying the relevant treaty, the obligation to periodically report instantly becomes binding on the ratifying party. Despite this forcible nature, the instrument itself is rather sensitive towards the sovereignty of states. Of course, this sensitive nature is also rooted in the time when it was first established, as in 1919 the states were even more jealous about their sovereignty than they are today and international measures interfering with their sovereignty then were scarce to non-existent. In its beginnings, state reporting was considered to be a tool of cooperation, not one of monitoring. States remain in control of the procedure; they are almost free to decide which information they want to provide to the oversight committees in which form. Oversight committees should only review the information provided; not always can information from third parties, such as shadow reports, be included in the review. This sovereignty-sensitive nature is probably the reason why the reporting obligation is widely accepted, and its existence generally not criticized. States tend to have a positive attitude towards state reporting, providing it with a powerful raison d’être. However, this sensitive nature is also the root cause of its dysfunctionality. The power to essentially choose the information relevant for consideration obviously comes with a (sometimes readily used) possibility of abusing this power. This results into reports of insufficient quality, containing useless or nebulous information in which renders the review of the report basically useless. When it comes to late reporting or not submitting a report at all the breach of the reporting obligation is usually without sanction, at most resulting in a friendly reminder by the ignored committee to submit the report or the commission of a review in absence of a report (if this option is available to the committee). As there are almost no costs attached to a breach of the reporting obligation, it is not surprising that compliance is scarce: on 23 November 2020, only 26 states were in full compliance with their reporting duties.
The Benefits of State Reporting for the Protection of Human Rights
Why, one could ask, should a system that apparently is not functional be upheld?
Even though at times the call to uphold this system seems like a lost cause, there are actually quite good reasons in favor of the state reporting system. First, it is, as indicated earlier, the only instrument immediately compulsory for the ratifying state party. Each treaty hereby comes with a minimum protection inherent in its text that a state cannot effectively avoid. Even reservations concerning the state reporting obligation are impermissible, as it is an essential part of a human rights treaty: the effective enjoyment of human rights is inseparably linked to a minimum oversight and such is provided by the reporting obligation. Other instruments of human rights protection, be it human rights courts or complaint mechanisms, require additional consent by the affected state to unfold their forcible potential.
Second, it is a preventive rather than a regressive measure. The constant review of the situation within the domestic realm of a state enables not only the oversight committee to detect early signs of a system failure or systematic human rights violations, but also the state party itself to re-evaluate the situation and hereby gradually improve its human rights performance. Other measures, for example the individual complaint procedures in front of Human Rights Bodies, are only triggered after a human right was violated, a rather undesirable situation which is not necessary for the applicability of monitoring by state reporting.
Talk Less, Do More
The challenges and benefits of the state reporting instrument are no news to the relevant organizations and academia. Hence, it is rather unsatisfactory that after all those years of reform process the outcome of the Review 2020 is not more than “we should talk some more about this”. The part of the Co-Facilitator’s report concerned with state reporting has five paragraphs (Report, paras. 37-41) and, in essence, displays that some stakeholders like simplified reporting, others not so much, but essentially the Co-Facilitators consider it useful, which is why they
“believe that all the human rights treaty bodies should be encouraged to offer the simplified reporting procedure to States parties and to make the simplified reporting procedure the default procedure for periodic reports, and if the treaty body concerned so decides, for initial reports, from which States parties can opt out” (Report, para. 41).
This conveniently moves the responsibility back to the Treaty Bodies themselves, which is understandable insofar as the Treaty Bodies are independent organs, each responsible for their own procedures. However, it is frustrating to have a promising six-year process being crowned with the absolute minimum expectation and a follow-up as the most appropriate (and hence, best) solution.
It is not that there would be an insufficient amount of ideas what could be done; apart from the apparently favored simplified reporting, there are proposals ranging from minimal-intrusive proposal to study and review compliance patterns for institutional improvement over a reformed organizational structure (e.g. Lucerne Academic Consultation on Strengthening the United Nations Treaty Body System) or a reformed way of reporting (for example consolidated reporting or integrative reporting) to extensive ideas of a unified system or a single state report. It simply appears that those proposals unfortunately go unheard or are at least left unattended.
It is hoped that the recommended follow-up process will be the last, as we can safely assume that there was a sufficient amount of conversation that must now be followed by action.