Human Rights Treaty Body Review 2020: Another Ending, Another Beginning
The Human Rights Treaty Bodies are committees of independent experts that monitor the implementation of the ten core international human rights treaties, thereby comprising ten Treaty Bodies (otherwise known as Committees). Since 1969, the Treaty Body System has grown and with this growth a number of challenges have emerged. Challenges such as a backlog of State reports, individual communications and actions; insufficient compliance by State parties with their reporting obligations; a lack of adequate resources and a lack of harmonization in working methods between Treaty Bodies persist in 2020.
· Following several other major initiatives by the United Nations to enhance the effectiveness and efficiency of the Treaty Body System, the General Assembly passed Resolution 68/268 on 9 April 2014. Resolution 68/268 created two review mechanisms: (1) a biennial report by the UN Secretary-General on the state of the Treaty Body System and (2) a review of the effectiveness of the measures taken in accordance with the resolution no later than 2020.
· Pursuant to these review mechanisms, informal consultations on the review of the Treaty Body System were held in New York and Geneva. These sessions followed the submission of written statements by States, National Human Rights Institutions (NHRIs), other stakeholders, and UN experts, as well as written contributions from the Chairs of the Treaty Bodies.
· The New York informal consultation – held virtually due to Covid-19 – took place on July 27, 2020. The issues discussed include:
o Use of new information and communications technologies (ICTs). COVID-19 demonstrated the need to adopt new technological tools. During the consultations, States discussed the benefits of ICTs while also reminding the co-facilitators of the informal consultations of the complications faced by small and developing States, such as the lack of reliable energy and unreliable data systems. States that spoke during the consultations gave varying views on the use of ICTs both during COVID-19 and in the future.
o Nomination and selection process of Treaty Boy Members. A majority of the States’ submissions highlighted the need for independence and impartiality among nominees, as well as a high moral standard and expertise in the field of human rights. Several submissions underlined the notion that this process should remain within the sovereignty of States. There was also varying commentary on displaying nominee information on the Office of the High Commissioner for Human Rights’ website, ensuring equal representation among geographic, gender and persons with disabilities, and whether there should be an interactive dialogue with nominees.
o Technical cooperation and capacity building. Some States expressed the view that support should be extended to States to build sustainable capacity in relation to their reporting obligations vis-à-vis the Treaty Bodies. Of the States that provided comments, many stated that reporting should not be cumbersome but rather act as a motivation to engage with the Treaty Bodies.
o Budgetary issues. For many States who provided comments, optimization of funds seemed to be the first step in containing budgetary issues. In other words, the Treaty Body System should exploit all funds with better management of financial and human resources before obtaining more resources. On the other hand, other States believed that the Treaty Bodies should be fully funded in accordance with the formula set out in General Assembly resolution 68/268 (9 April 2014). Additionally, States pointed to the need to use all six of the UN languages on an equal footing.
o Interaction with different actors, including civil society, NHRIs, and regional actors. Many States were of the view that interaction with different actors was crucial and beneficial to the functioning of the Treaty Bodies. But some States cautioned that information provided by these actors should be factual and objective while also being within the mandate of the Treaty Bodies.
o Individual communications. The final issue for consideration arose from the significant backlog the Treaty Bodies face. There was overwhelming support for the standardization of individual communications and the need for a digital case management system.
· The informal consultations in Geneva were held in two sessions – the first on 28 August 2020 in a hybrid format (i.e. with some delegations attending in person and others virtually) and the second on 2 September 2020, virtually. The issues discussed were:
o Simplified reporting procedures. While delegations were supportive of the use of simplied reporting procedures, there was significant divergence on whether they should apply by default (an “opt-out” system) or only when States choose so (an “opt-in” system). Several delegations also stressed that, to the extent simplified reporting procedures are used, the list of issues should be limited and focused, not go beyond the mandate of the particular Treaty Body, and also be coordinated across Treaty Bodies to avoid duplication.
o Harmonization and working methods. There was overwhelming support for better coordination in working methods and procedures across the Treaty Bodies, including in the formulation of questions, the development of general comments, recommendations and concluding observations, as well as follow-up procedures. At the same time, delegations stressed that such harmonization should be consistent with the specific legal mandates and natures of each Treaty Body and the need to maintain the independence of each Committee. Several delegations also emphasized that any change in working methods should be undertaken in full consultation with State Parties to the relevant treaty. Various modalities for harmonization that were raised including a joint website for all Treaty Bodies and designated members of each Treaty Body to be responsible to liaising with counterparts in other Treaty Bodies in relation to each State Party.
o Aligned methodology for constructive dialogue. As with the harmonization of working methods, States supported aligning methodologies across Treaty Bodies for constructive dialogue but reiterated that this should not undermine the independence of each Committee and should be strictly based on their specific mandates. Some delegations opposed any accountability mechanisms, such as a code of conduct, that in their view would undermine the independence of the Treaty Bodies. Specific modalities to facilitate constructive dialogue with States under review included: advance notification of topics to be discussed at oral sessions; caps on the number of questions posed by Committee members; appropriate time allocation between Committee members and State delegations; improving informal contacts between States and Treaty Bodies between sessions; and the leadership role of the Treaty Body Chairpersons. Some delegations shared varying views on the utility of the Common Core Document, and several suggested that Treaty Bodies need to have a better understanding of the political, cultural, social and legal context of State Parties.
o Fixed calendar. There was overwhelming support for the use of coordinated, fixed and multiyear calendars, including a “Master” calendar across Treaty Bodies, including dates for State reports and for constructive dialogue, and taking into account relevant dates for each State’s Universal Periodic Review. Supporting delegations considered that this would enhance predictability, clarity and stability in review cycles and reporting, as well as increase the reporting compliance of State Parties. However, some delegations questioned the need for a fixed calendar, as well as its possible budgetary implications.
o Periodicity of the human rights treaty bodies sessions. Many States welcomed an 8-year review cycle, stressing the need for coordination and predictability in review cycles and reporting. Delegations diverged, however, on the appropriate period of this cycle, with preferred periods ranging from less than 8 years, “no more than” 8 years, 10 years, and 8 years for certain Committees and 4 years for others. This divergence spoke to the tension, as certain delegations highlighted, between the need to ensure regular reviews and the need to avoid excessive burdens on States and the Treaty Body System.
o Concluding observations and recommendations, including their follow-up. States who provided comments almost universally stressed that concluding observations and recommendations should be short, focused and concrete, in line with paragraph 6 of Resolution 68/268. Delegations also emphasized that concluding observations and recommendations should reflect the dialogue with the relevant State party, and not exceed the mandate of the particular Treaty Body as defined by the relevant treaty.
· A virtual wrap-up session will be held on 11 September 2020 from 10am to 12pm EST. Co-facilitators will present their main findings and recommendations, to be subsequently contained in the report to be submitted to the President of the General Assembly, after which the floor will be open for short statements from delegations. The co-facilitators’ report to the President of the General Assembly, to be submitted before the end of the current session of the General Assembly, will allow the General Assembly to assess and decide, if appropriate, on further action to strengthen and enhance the effective functioning of the human rights treaty body system.
Small and developing States should stay up to date with the outcome of the informal consultations. IILA can assist small and developing States to assess the eventual report of the co-facilitators and any further action that may be considered and/or decided on by the General Assembly, in order to maximize efficient and constructive engagement with the Human Rights Treaty Body System going forward.
For more information on the Human Rights Treaty Bodies, see the webpage of the Office of the High Commissioner for Human Rights.