The October-November 2017 are the delineating and defining months that present a constitutional moment in the pilgrimage of human rights when some human rights bodies of global and regional visage will sit in judgement at Geneva in Switzerland to assess the degree of States’ compliance with their human rights obligations through the States’ reports, civil society groups’ submissions, country visits, stakeholders’ hearings, webinars, individual representations and conference presentations.
Five UN Human Rights Treaty Bodies (HRTBs) are going to have their meetings throughout October 2017 to have stock-check of States’ observance with their HRTBs mandate on ICCPR-1966, ICESCR-1966, CEDAW-1979, CAT-1984, and CRC-1989. UN Human Rights Council (UNHRC) and its Social Forum will be in session and UNHRC will organize Seminars, Working Group Discussions and Thematic Panel Discussions on international human rights issues like refugees, migrants, displaced persons, climate change, transnational corporations, prevention of torture, custodial violence, fair trial guarantee, and gender justice and rights. At the regional level, the European Committee on Social Rights (ECSR), European Court of Human Rights (ECtHR), Inter-American Commission of Human Rights (IACHR) and Inter-American Court of Human Rights (IACtHR) will have their sessions too.
There are numerous bodies established under the UN Charter for promoting and monitoring compliance with international human rights, namely; the UN Human Rights Council, the Office of the High Commissioner for Human Rights, and the High Commissioner for Human Rights, the Security Council (UNSC), the General Assembly (UNGA), the Secretariat (and the Secretary-General), and the International Court of Justice. Of these, the UN Human Rights Council and the Office of the High Commissioner for Human Rights are the most active in enforcing and monitoring compliance with international human rights. UN System is a Charter-based bodies system that seeks to uphold international human rights in general; while UN Human rights Treaty Bodies (HRTBs) address compliance with human rights in the particular human rights treaty under which they were established. Primarily, the UN human rights system is composed of two kinds of bodies; (a) Charter-based Bodies that includes the Human Rights Council and its subsidiary mechanisms and thematic mandate holder (e.g., the Human Rights Expert Mechanism on the Rights of Indigenous Peoples; Special Rapporteur on the Situation of Fundamental Freedoms of Indigenous People and Human Rights. However, Treaty Bodies – created under the international human rights treaties and made up of independent experts that have the mandate to monitor States parties’ compliance with their treaty obligations.
Therefore, the United Nations (UN) Human Rights Treaty Bodies (HRTBs) are the substratum of global human rights framework whereunder the human rights commitments, and convictions of the national governments are accounted for implementation. The HRTBs system is a synthesis of ideality and reality based on dreams and desires of humanity and ideals and practical realization of fundamental purposes and core principles of the UN Charter. The HRTB system is an unprecedented attainment of the common good in the history of global gratification for human rights beyond the multitude of geopolitical structures in all the countries. The system of HRTBs stands at the heart of the international protection framework for human rights that translate the global standards, universal norms, and democracy of judicial remedies into affirmative action, the primacy of individual development, communitarian and collective welfare of the humanity. The HRTBs mechanism is a budding and promising contrivance that provides authoritative roadmap on human rights standards, makes recommendations how human rights treaties are invoked and applied in specific cases, and apprises the High Contracting parties of what they must do to make sure that all people are free and equal and enjoy the full realization of human rights.
But, there is a pivotal question as to what extent these HRTBs have been pragmatic in accomplishing the global vision of a world wedded with human rights from textual literalism to transformative functionalism that remains to be seen? Therefore, the UN Member-States (UNMS) contemplated and concluded a State-Led Reform Process (SLRP) to strengthen and enhance the effective functioning of the HRTBs system by adopting the Resolution 68/268 in the UN General Assembly on 9 April 2014. Thus, the SLRP is armed with the architecture of ten Expert Committees entrusted with the responsibility to monitor the enforcement of the obligations in the UNMS enunciated under the core human rights treaties with the additional protocols thereto. Primarily, the SLRP process has started by the states to appreciate the objections to fundamental countenances of the HRTBs’ work to surpass the current reform endeavours initiated by the UNHCHR (United Nations High Commissioner for Human Rights). Despite the fact that HRTBs reform process ill-starred but its Final Resolution mostly sidesteps the adverse corollaries for their autonomy and independence and makes significant changes that are bound to affect their work in the long run. Nevertheless, there is a need to do a lot to enhance the efficacy of HRTBs in protecting, promoting, and preserving the human rights for all.
HRTBs: Realizations and Contestations
The HRTBs is an integral constituent of international human rights system that ensures the protection by doing an independent and impartial assessment of compliance and enforcement thresholds of human rights obligations on the part of high contracting parties. The HRTBs personnel contacts, coordinate, and conduct negotiations with plenipotentiaries of the high contracting states during Public Review of Periodic Reports of the states regarding implementation of the international human rights treaties in their respective jurisdictions. They also make public and publish all conclusions and recommendations based on the progress achieved by the countries in their human rights obligations. They come to decisions on individual and collective cases of human rights alleged violations, monitor the human rights and offer general comments interpreting the scope of the human rights commitments. The HRTBs outcomes are important to national governments, HRDs (Human Rights Defenders), NHRIs (National Human Rights Institutions), and NGOs (Non-Governmental Organizations) who provide and share the information to HRTBs and cite their conclusions, findings, and recommendations in their reports. The HRTBs also disseminate the work of UN-UPR (UN-Universal Periodic Review), UNHRC (UN Human Rights Council), UN Special Procedures, Academics, and the Courts at national, regional and international levels.
Nevertheless, HRTBs are confronted with considerable impediments in their efficacy and primacy in the absence of compelling machinery to implement the human rights mandate in the UNMS. The treaty obligations both substantive and procedural must be implemented by ensuring the conformity with human rights treaty standards inter-alia compliance of the HRTBs recommendations and submission of reports respectively. However, the majority of the UNMS and states parties to international human rights treaties do not submit their reports on time, and few of them do not report at all to UNHRC. But some states do prepare remarkable reports with the help of their domestic human rights expertise, internal HRDs and other stakeholders and countries also try to ensure significant implementation of HRTBs findings with varying degrees. The emplacement of four new HRTBs in the last ten years has posed a new set of challenges that include their ratification and mounting reporting. As of now, the HRTBs did not receive sufficient resources and wherewithal to monitor and regulate their slow functioning in disposing of backlogs of reports and communications. HRTBs experts are under tremendous pressure due to the mounting workload that strains their efficiency and efficacy. These experts and consultants are nominated and elected by the states parties to the human treaties. They are not paid and serve on the HRTBs in their personal capacities without getting adequate support from the Office of the OHCHR (UN High Commissioner for Human Rights). Therefore, the administrative functionalism in the HRTBs structure does not conform to the global standards that made it cynical and indifferent.
HRTBs Reform Peregrination
Having recognized these challenges, the Human Rights Treaty Body reforms have been initiated in 2009 by the UN High Commissioner for Human Rights Navi Pillay as a cycle of consultations involving the entire stakeholders to strengthen the HRTBs that has come to known as Dublin Process. These plans triggered significant ruminations among the present and past HRTBs academics, consultants, experts, NGOs, NHRIs, UNMS, UN Secretariat and other UN bodies. The Dublin Process completed its mandate in 2011, but a group of States led by Russian Federation raised objections that impugned process had not adequately addressed the concerns of many stakeholders. Consequently, the group successfully pushed the UN General Assembly to start the inter-governmental process based on SLRP structure. Therefore, UN General Assembly adopted a resolution in February 2012 whereunder process was created that was supported by the eighty-five States and sixty-six States abstained including the US from voting. On the Dublin Process, the UN High Commissioner for Human Rights published her report in July 2012 and negotiations had started among the States and stakeholders including international civil society institutions and organizations. Consequently, in February 2014 States brokered an agreement that was adopted by the UNGA in April 2014 as a formal resolution.
The Aftermath of the SLRP
The Dublin Process intended to secure the maximum threshold of States compliance with their obligations about reporting and meeting to facilitate the HRTBs to review the UNMS reports in an agreed and stipulated time frame. The High Commissioner for Human Rights has mooted a proposal of adopting the mandatory Master Calendar to ensure the compliance of the States parties to the human rights treaties on every five years, but many States has resisted that. If accepted, the impugned proposal would have doubled the meeting time of the States parties to the human rights treaties, but during SLRP negotiations States raised legal, pecuniary and feasibility challenges and, ultimately, it resulted in a fiasco. Even so, the SLRP has increased the meeting time of the HRTBs by more than 20% during 2012-2015. The average workload of each HRTBs has been determined every two years based on a formula so that there would not be any arrear or accumulation of cases at the cost of other functions and priorities.
Even though the Resolution enhances the HRTBs meeting time, but it does not considerably enhance the total amount of resources reserved for HRTBs. The UN regular budget covers the global funding needs of the OHCHR at a rate of 40 percent approximately. The residue is covered by voluntary contributions from UNMS and other donors. The UN regular budget, approved by the UNGA every two years, is paid by the “assessed contributions” from each Member State that are decided and determined according to a formula that takes into account the size and strength of their respective national economies. The UN’s regular budget should finance all activities mandated by the General Assembly and its subsidiary organs, including the HRC. Further, on an annual basis, the resolution makes provision for creating a capacity-building programme under OHCHR that assists the States upon their request to salvage their problems.
Harmonization of Procedures and Methodologies
The UNHRC’s report impressed upon the HRTBs to harmonize their procedures and methodologies so that their working could be improved. The SLRP or Cross Regional Group (CRG) led by Russian Federation alleged that HRTBs had exceeded treaty briefs in their style of functioning, intangible methods, indulged in political castigation of States and allowing to reference information culled from the civil society institutions like NGOs, etc. Moreover, HRTBs officials resorting to iconoclastic and innovative techniques in developing new procedures to ascribe the States’ policies, general comments, recommendations and enforcement thereof. Consequently, states impressed upon the UNGA to insist on changes to the procedures of the HRTBs and to ensure bigger obsequiousness and primacy to the views of the States. However, many States asked for self-regulation on the part of HRTBs precisely to guarantee impartiality, independence, and honesty in their functions and operations.
The intergovernmental process or SLRP vouches for UN High Commissioner for Human Rights’ proposed procedural reforms whereunder HRTBs are required to harmonize their procedures. SLRP impressed upon the HRTBs that they must conform to their Mandate and respect the positions of the state parties. Therefore, in achieving the larger harmonization, the resolution called for empowering HRTBs’ Chairs to take procedural decisions incommensurate with their prior deliberations with the fellow experts. Thus, the HRTBs’ Chairs have started the deliberations and discussions in this connection. At one fell swoop, the resolution does not put HRTBs member states in a supervisory control position over the HRTBs experts in ways that could have critically cast a shadow upon their inspection of States’ performance in preserving, promoting, and protecting the human rights. However, the resolution does not support a polemical proposal of CRG that contemplated a Code of Conduct for HRTBs experts while ensuring their accountability under a mechanism. As an alternative, it urges the HRTBs to review their Self-Regulatory Guidelines (SRGs) on accountability and independence while keeping in view the States’ concerns.
Improving the Execution and Openness
There is a requirement of enhancing, improving the existing threshold of execution and implementation of HRTBs with transparency in conformity with UN High Commissioner’s objectives to ensure the high quality reporting and enforcing the HRTBs’ recommendations in the municipal jurisdictions of the States parties. However, UNGA Resolution makes a sporadic mention that States to emplace “standing national reporting and coordination mechanisms” to compile reports in consultation with civil society institutions, NGOs, non-state actors and all stakeholders while appreciating and monitoring the HRTBs work and recommendations and their implementation. On the issue of accessibility and openness, UN High Commissioner advocated their enhancement and reflection in the functioning and operations of HRTBs. Further, UNGA Resolution envisages the UN webcasting of HRTBs meetings but, unfortunately, it has been perceived as rhetoric leaving it to OHCHR to arrange its funding. Moreover, it has also recommended that HRTBs should stipulate word limitations to reports and representations made by the NGOs and other civil society groups just to rationalize the cost incurrences. Similarly, UNGA Resolution begs off to entertain the recommendations of the UN High Commissioner regarding promotion and selection of HRTBs experts and consultants.
The ratification of human rights declarations, treaties, and optional protocols must be mobilized on the largest scale to improve upon human rights protection at all levels of nation-states, regional arrangements, and global commitments. Simultaneously, national constitutions, national legislations, public policies and lego-institutional response structure must conform to the HRTBs system. There are many challenges confronting the HRTBs like overstraining of resources due to the proliferation of human rights treaty bodies, States parties reluctance and irregularity in reporting, and mounting individual communications. However, there are some States both from developed and developing a world that is entirely compliant with their reporting obligations, but there is a backlog of reports with the HRTBs. However, if all the States parties start reporting in a disciplined manner and well-stipulated timeframe, HRTBs system might collapse as it is not well-equipped to handle the entire gamut of reporting submissions. The UNGA Resolution 68/268 has been adopted to reflect upon and strengthen the HRTBs system.
It is aptly be put forward that UN General Assembly has been attending, appreciating and addressing many of the HRTBs concerns regarding resources, functioning, and operations but much remain to be tackled to make HRTBs stronger and stouter in responding to emerging human rights violations. UNGA resolution seeks to make HRTBs system more sustainable and sturdier without incurring further UN resources while making optimum utilization of enhanced meeting time slots. However, the requirement for more resources would occur in future owing to the sustainability apprehensions and anxieties as there would be mounting workload of HRTBs disproportionate to the limits of the volunteer experts’ capacity. Thus, rights-holders and stakeholders of the HRTBs must be central to any review of the HRTBs system.
Therefore, currently contemplated reform agenda is insufficient and intangible to meet these challenges posed by the HRTBs. In a nutshell, all stakeholders to the HRTBs structure must pursue the substantive objectives identified in the Dublin Process along with UN High Commissioner’s Report. Hence, the visibility of HRTBs to larger public must significantly be enhanced, reporting quality and regularity of State reports submissions must be increased, proactive implementation of recommendations of the HRTBs, and strengthening the efficacy of HRTBs membership while upholding the accessibility, accountability, independence and transparency of the HRTBs system to all the stakeholders and civil society groups. HRTBs require these indispensable, inevitable and inescapable changes so that HRTBs could make a greater contribution to the protection, preservation, and promotion of human rights and civil liberties across the world.