The article examines the unification tendencies developing in the initiatives aimed at enhancing the activities of the universal human rights mechanisms with the example of the process of strengthening the human rights treaty bodies who stand at the heart of the universal human rights system. This paper determines and analyses the unification trends in the current implementation of the 2014 UN General Assembly resolution 68/268 “Strengthening and enhancing the effective functioning of the human rights treaty body system” and ongoing academic initiatives on strengthening the system. The author discusses the strong and weak sides of the unification proposals, resulted from these initiatives, and concludes that today such ideas are rather a palliative than the panacea to the challenges the system faces.
The article is prepared within the President of the Russian Federation Grant for state support of young scientists — candidates of science (Ph.D.) on the theme “Human rights treaty body system: yesterday, today and tomorrow” МК-1952.2017.6 (head of research – A.E. Koneva).
Keywords: UN, universal human rights system, human rights treaty bodies, unification, GA resolution 68/268, meetings of chairpersons of human rights treaty bodies, unified treaty body, world/international court of human rights, consolidated (semi-consolidated) state report, single common chamber on communications, consolidated world charter of human rights, Universal Periodic Review.
Тенденции унификации в универсальной правозащитной системе: один шаг вперед или два шага назад?
В статье рассматриваются тенденции унификации, проявляющиеся в рамках инициатив по совершенствованию деятельности универсальных правозащитных механизмов на примере процесса укрепления договорных органов по правам человека, которые находятся в центре универсальной правозащитной системы. В работе выявляются и анализируются тенденции унификации, прослеживающиеся в ходе осуществления резолюции Генеральной Ассамблеи ООН 68/268 «Укрепление и повышение эффективности функционирования системы договорных органов по правам человека» от 2014 г., а также пронизывающие текущие научные инициативы по укреплению системы. Автор обозначает сильные и слабые стороны предложений по унификации, выдвинутых в рамках данных инициатив, и приходит к выводу, что на сегодняшний день эти идеи представляют собой скорее паллиатив, нежели чем панацею от вызовов, с которым сталкивается система.
Статья подготовлена в ходе работы по гранту Президента РФ для государственной поддержки молодых ученых – кандидатов наук по теме «Система договорных органов по правам человека: вчера, сегодня, завтра» МК-1952.2017.6 (научный руководитель – А. Е. Конева).
Ключевые слова: ООН, универсальная правозащитная система, договорные органы по правам человека, унификация, резолюция Генеральной Ассамблеи ООН 68/268, совещания председателей договорных органов, унифицированный договорный орган, международный суд по правам человека, консолидированный (полуконсолидированный) отчет государства, единая палата по рассмотрению сообщений, консолидированная хартия прав человека, Универсальный периодический обзор (УПО).
Today various initiatives are put forward to improve the effectiveness of the universal human rights machinery. Among these initiatives it is possible to determine two set of ideas – one following a smooth approach that entails a step by step process of improving the functioning of the human rights machinery, and second focusing on reforming, i.a. bringing structural changes leading to re-thinking of the legal basis of the activities of universal human rights mechanisms. The second set of ideas is often associated with the unification of the work of these mechanisms.
The unification tendency is influencing almost all initiatives aimed at enhancing the activities of the universal human rights mechanisms, including the process of strengthening the human rights treaty bodies, who “stand at the heart of the international human rights protection system.”
The process of improving the work of the human rights treaty body system, having a history of decades of years, is currently focusing on the implementation of measures suggested in the UN General Assembly (GA) resolution 68/268 “Strengthening and enhancing the effective functioning of the human rights treaty body system” adopted in 2014 as the outcome document of the UN intergovernmental strengthening process on strengthening the human rights treaty body system.
The implementation of the GA resolution is bringing positive results, including the increased number of reviews of States’ reports, individual communications examined and field visits conducted, as well as reduction in the number of late States reports and the backlog of reports in the committees.
However, at this moment the system is still facing challenges in terms of provision of necessary financial and human resources to support its activities as well as technical assistance for their meetings.
While these challenges are widely discussed at the UN level due to the publication by the UN Secretary General of his first 2016 and second 2018 biannual reports on the developments in the treaty body system, there appears to be another sort of threat of a conceptual character that may undermine the effectiveness of the system. This is the ongoing tendency of unification of the committees’ functioning. The unification trend is crosscutting the whole strengthening process, euphemistically advocated in the form of measures to enhance the efficiency of the system.
This paper will determine and consider the unification patterns in the current GA resolution implementation and ongoing academic initiatives on strengthening the system, discuss the strong and weak sides of the unification proposals and conclude that such ideas are rather a palliative than the panacea to the challenges the system faces.
The history of the process of improving the treaty body system knows a number of reform proposals targeted at unifying the committees’ work through introducing changes in the legal basis of their functioning. Among these proposals were the ideas of a consolidated state report/review, unified treaty body, joint working groups on reports and/or individual communications and a world court of human rights.
The key stakeholders of the system identified the inability of these ideas to enhance the system, since if adopted, they would threaten the specificity and independence of each treaty body with its significant experience accumulated in the respective field of human rights protection. The lessons of these initiatives have generated the dominating view at UN level to forward the process from the direction of reform to a smooth initiative (so called “strengthening”) that entails a step by step improving without bringing structural changes leading to re-thinking of the treaties.
Within this research the term “unification” is understood as a measure aiming at amending the treaties and impeding specificity and independence of each committee. It should be differentiated from such terms as “harmonization” and “streamlining”, which target at ensuring possible commonalities in the approaches followed by the committees in performing their key activities (reporting, constructive dialogue, concluding observations, follow-up etc.) and making these activities less burdening for States parties and other stakeholders.
Such terminology is used in the text of the 68/268 resolution, which recommends measures to harmonize the activities of all committees on the basis of their working methods.
However, the developments in the system at the current stage of the strengthening show that the border line between the unification and harmonization is blurred.
The key concern lies in the imperfections of the procedure of decision making within the meetings of chairpersons (Chairs), whose role under the 68/268 resolution should be enhanced by the committees with respect to formulating conclusions on issues related to working methods and procedural matters.
All the aligned methodologies adopted at the Chairs’ meetings are tested by each committee on the question of their reasonableness and ability to preserve the specificity of the methodologies of this particular committee. Today, the drafts of the documents to be discussed at the Chairs’ meetings are distributed among the committees not reasonably in advance, and the committees lack enough time to discuss the text. Thus, the committees are more likely to treat the aligned methodologies adopted by the Chairs as decisions imposed on them. The aftereffects are the cautiousness of the committees to follow methodologies and inconsistencies in the application of the suggested aligned methodologies among the committees. One may still consider this situation as positive step, since the committees have more commonalities now than before. However, States may find the fact that the aligned methodologies are not proposed under the same modalities by all committees quite challenging.
There is a need to avoid rigid harmonization, which would prevent the spirit of experimentation in the eyes of the committees afraid of a tendency of their unification. Following the recommendation of the Secretary General in his second report in this regard, it seems necessary to ensure scheduling the adequate time for committees during their sessions to discuss the agenda of the Chairs’ meeting, compare their approaches with the approaches of other committees and mandate their chairperson with the relevant position to be expressed during the Chairs’ meeting. Such measures would increase the possibility of finding common denominator in the committees’ methods and integrate it in the aligned methodologies so that less variance in their use may arise.
Another pattern of unification is the recommendation of the GA resolution on the transfer of the mandate for the election of the Committee on Economic, Social and Cultural Rights members from the Economic and Social Council (ECOSOC) to the meeting of the States parties to the ICESCR. This replacement risks undermining the specific legal nature of the Committee as a subsidiary body of the ECOSOC and violation of the principle of non-amendment of the treaties (and even the Charter of the UN, as the ECOSOC is the main UN organ, established by the UN Charter).
In the lead up to the 2020 UN comprehensive review of the progress achieved in enhancing the system, the initiatives to generate ideas on improving the work of the treaty bodies were launched at academic levels.
In the course of some of these initiatives particular concerns on the threat to the specialization of treaty bodies posed by the current alignment of the treaty bodies’ methods are raised. The example is conference “Towards a 21st century treaty body system”, organized in 2017 by Wilton Park discussion forum, which report raises question on the possibility of the alignment to undermine the specialisation of treaty bodies.
Another initiative is “Academic Platform Project on the 2020 Review of UN Treaty Bodies,” launched by the Geneva Academy of International Humanitarian Law and Human Rights.
Unlike, the Wilton Park initiative, the Geneva Academy project risked to adapt previous unification proposals with the existing normative framework. The final report of the project, issued in 2018, accumulates the ideas emerged during its consultations and conferences and makes an effort to suggest various ideas, including such unification proposals as consolidated state report and review or a semi-consolidated report with a clustered state review. Among other measures the report mentions the creation of a single common chamber for all treaty bodies to consider communications. While noting that the recommendations on the reporting procedure may be introduced without reopening the treaties, the report contains the supporting and opposing views on the possibility of the common chamber on communications to reconsider the treaties and to weaken the specialized expertise of the committees.
Alongside the report of the Geneva academy project, the issue of unifying the work of the committees is also discussed in a number of academic works. The researchers seem to follow two approaches: one – opposing the unification (with some admitting the possibility of radical institutional change, but only in the distant future); second – support of profound structural change.
Apart from the ideas, mentioned in the Geneva Academy project report, the aforementioned works are focusing on unified treaty body, world/international court of human rights, fusing of the Human Rights Committee and the Committee on Economic, Social and Cultural Rights, consolidated world charter of human rights, replacing the reporting in the treaty bodies with the Universal Periodic Review (UPR) process or the follow-up of the committees’ recommendations by the UPR.
Since unification ideas are still in the game, let us briefly look at the advantages and disadvantages they may bring to the effective functioning of the system.
The overall advantages are the increase of the visibility of the system and ensuring more coherent approach in interpreting and applying human rights norms.
With regard to the reporting procedure the benefits are clear: decreasing the burden of reporting on the side of States; avoiding unnecessary duplication of information in the reports submitted to the committees and repetition of recommendations in the concluding observations of different committees.
With regard to the communications procedure the key advantage is more coherent jurisprudence of the treaty bodies.
The list of disadvantages and unanswered questions is bigger than the advantages list. The non-exhausting list includes:
1. They bring the normative changes, which requires significant political effort on the side of States to amend the treaties, which seems unrealistic today.
2. It is unclear, how the necessary staff support on the side of the secretariat for such institutional reforms will be ensured. Will the allocation of staff be more reasonable and cost saving than today?
3. Risk of losing the specialization of each treaty body, its institutional memory and expertise developed through time. Joining a number of experts into one single unit (working group, committee, court) raises issues on its unbalanced composition with unclear expertise, as there might be members from other committees considering the report or hearing the case, who lack appropriate knowledge in the area of application of a particular treaty. How would the experts gain the knowledge and expertise in the areas they were not specializing in earlier.
4.There is also the issue of States’ credibility due to uneven composition of the committees, as the new joint structure might include members from States, who did not sign particular treaties and their optional protocols, which will be monitored by this structure. The States might be very cautious about the fact of being reviewed by experts from non-participating countries.
5. There might be a risk of marginalizing certain human rights issues, that may fall out of the control or receive less attention in the work of the new consolidated structure or during the consolidated State review. Therefore, the protection of rights holders or particular groups of individuals in certain areas may be undermined.
6. It is unclear, how consolidation will influence the rate of State compliance with treaty bodies’ recommendations. There are little arguments, if any, for the better compliance in the process of unification.
Another trend of the current unification suggestions is merging the activities of treaty bodies not only within the treaty body system, but converging the functions of the treaty bodies with other universal mechanisms, in particular UPR. We talk about replacing the reporting at the treaty bodies with the UPR process or linking follow-up of committees’ recommendations and decisions to the UPR.
Such ideas are far from being feasible due to clear differentiation of their mandates with each of them playing a particular role in the universal human rights system. Mixing functions of these mechanisms may threaten the balance of powers in the universal human rights system developed between its non-governmental (expert) component in the face of the human rights treaty bodies and intergovernmental component in the face of the Human Rights Council and the UPR. The interaction that already exists between these mechanisms brings significant results, in particular with regard to stimulating States to join the international human rights treaties, submit periodic reports to the committees and participate in the interactive dialogue with them.
Источник фото: https://ru.wikipedia.org/wiki/Совет_по_правам_человека_ООН
Therefore, looking at the signs of unification trends in the current implementation of the GA resolution and the emergence of old and new unification proposals among human rights researchers and ongoing academic initiatives on treaty body strengthening, it becomes clear that such ideas may well be included in the agenda of the UN 2020 comprehensive review of the progress achieved in enhancing the system.
At this point it is therefore important to warn the relevant stakeholders of the treaty body system from the risks these suggestions bring.
While the uniformity of the procedures in all treaty bodies is very much preferable for States and civil society, such ideas do not seem to offer relief to the challenges of the system without bringing the new ones. The following questions remain.
Will unification solve the problems of non-reporting and backlogging without losing specificity of the treaty bodies? Will it ensure greater implementation of recommendations? How will it be possible to ensure that no specific human rights issues will be left beyond the scope of control of the system?
In this vein it is worth agreeing with the view of Philip Alston, that “the complex challenges cannot be dealt with in a meaningful way through seeking to bypass them all and create simply a world court of human rights” or any other consolidated entity “as if it were some magical panacea”.
The unification ideas are more likely to be palliative, which may disguise the existing problems for some time and reveal the new circle of challenges. Rather than focusing on creative and innovative proposals for the unification, there is a need to provide a proper assessment of the current state of affairs in the system in all its activities. This assessment should be based on a comprehensive analysis of the resource constraints, trends of inconsistencies in the interpretation of the similar human rights issues by the different treaty bodies; research of the obstacles to timely reporting and satisfactory implementation of the committees’ recommendations; the approaches of States towards enforcing the recommendations of the treaty bodies; ways of ensuring the visibility of the treaty body system.
Only after such complete examination the radical ideas may be tested on their actual ability to tackle the existing challenges, their advantages be balanced with the aftereffects they may cause.
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КОНЕВА Александра Евгеньевна
Кандидат юридических наук, ассистент кафедры международного права РУДН; e-mail: firstname.lastname@example.org.
About the author:
Ph.D. in Law, assistant professor, Department of International Law, RUDN University; e-mail: email@example.com.
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