The United Nations Charter requires each and every member state to discharge its obligations by faithfully carrying out norms of legally binding international human-rights law. These may be norms of international customary law, those contained in treaties or those flowing from general principles of international law.
The human-rights provisions in the Charter were amplified by the Universal Declaration of Human Rights that, in turn, were amplified in specific international human-rights treaties, 10 of which have supervisory machineries in the form of reporting systems, individual petitions procedures, state-to-state complaints procedures, fact-finding visits to countries and dedicated supervisory bodies.
The UN has Charter-based organs that are meant to promote and protect human rights universally. These include the General Assembly, the Human Rights Council, the Economic and Social Council, the Security Council and the International Court of Justice. Apart from the International Court of Justice, these are mainly political organs that perform with varying degrees of efficacy or integrity.
Alongside the Charter-based organs, there are organs that were established under the main treaties. These organs have defined tasks that are laid down in their respective treaty. Said simply, they are called upon to discuss with states parties reports about their obligations of conduct or results, as defined by the treaty in question.
The discussions can involve making recommendations to particular governments, synthesizing their recommendations to states parties in general comments, delivering views or decisions on petitions filed and considered in accordance with the given treaty and, where applicable, conducting visits on the spot and indicating their findings.
Generally, both Charter-based and treaty-based bodies can be hortatory. However, the mandate of the treaty bodies is to be faithful to the agreements they supervise. This is the big difference between Charter-based and treaty-based bodies.
Both Charter-based bodies and treaty-based bodies draw criticisms for alleged deficiencies, and there are various ideas and proposals to improve them. As far as the treaty bodies are concerned, discussions in intergovernmental and nongovernmental forums have touched on overlapping agendas and jurisprudence; whether treaty bodies could be harmonized; whether a better division of labor might be carried out among the treaty bodies; and even whether a unified standing treaty body might be established.
When contemplating the future of the UN human-rights treaty system, it is crucial to ask what underlying policy considerations should guide such a discussion. Is it political? Financial? Bureaucratic? Or should the aim be to protect people from gross violations of human rights? I shall touch on each of these here.
Politically, there is no doubt that influential countries, especially since the establishment of the Human Rights Council, have been advocating approaches that favor dialogue and consensus over allegedly confrontational policies. What this boils down to is insisting that even amid allegations of serious violations of human rights, the UN should talk with governments rather than highlight gross violations.
This approach has been creeping into the implementation of human-rights treaties and was largely at the base of the General Assembly’s initiative on treaty-body reform. Treaty bodies were designed to be independent in their assessment of national reports, in their comments on the reports and in rendering decisions on petitions. The General Assembly has begun the process of dismantling this independence. Not only has it insisted on constricting page limits for reports and treaty-body comments, but it is pushing for prior consultation with governments before comments are adopted.
In other words, the independent monitor is being told that he or she must consult or negotiate with the governments concerned on what the monitor thinks is right and just. This is a frightful and destructive course.
The very countries that advocate dialogue and consensus have also been pushing it on human-rights treaty bodies. This politicization should not be allowed to continue; they must continue to discharge their obligations and stand for the prevention of violations, the protection and promotion of human rights, always basing themselves on their particular treaty.
As for resources, the work of the treaty-supervisory procedures undoubtedly calls for financial and other requirements from member states and other sectors of the UN. It is crucial, therefore, to keep in mind that in nearly every instance, the human-rights treaties were drafted and adopted in response to gross violations of human rights being perpetrated by governments. Fundamentally, the purpose of each treaty is to prevent and help stop gross violations of human rights.
Violations of human rights remain rampant across the world. Can it be seriously argued that governments or the UN should not deploy the modest resources that are needed for the treaty bodies to function? Those who try to tamper with the human-rights treaty system must beware that they run the risk of weakening the only bodies in the UN human-rights system that pronounce on whether, legally and factually, governments are fulfilling their obligations under international human-rights law.
Bureaucratic requirements should not be allowed to impinge on such important policy consideration. One sometimes hears about overlaps, inconsistencies, fragmentation of jurisprudence. These are bureaucratic and academic foibles. The people of the UN who are suffering from gross violations of human rights would condemn those responsible for eviscerating the treaty system.
The UN human-rights treaty system should be left as it is for the foreseeable future. There is certainly room for practical cooperation and harmonization through the annual meetings of chairpeople of the human-rights treaty bodies, which encompass matters of detail.
What is of essence is that the human-rights treaty bodies maintain the task of helping to prevent gross violations of human rights and helping to marshal protection for victims. Governments have ratified the various treaties. Now they must be held accountable for carrying them out. Governments and the UN can — and should — bear the costs of the continued functioning of the human-rights treaty bodies.
This is article delivers an important and timely message.
There are many parties who should leave the treaty body system alone. However, at this time it probably needs much more protection from its friends than from those that would deliberately weaken it if given a chance. While that would change if the GA starts a general “review”, the focus now needs to be on keeping the GA consideration of the state of the of the treaty body system as limited as possible and not on talking it up into a full-blown review as many friends of the system are currently doing.
GA resolution 68/268 calls for the GA to consider the state of the human rights treaty body system no later than April 2020. Many well-meaning friends of the treaty bodies are preparing for a full-blown “review” of the treaty body system by the GA in 2020, on the assumption that such a review is both required and desirable. Recent experiences with the UN human rights system, including the 2012-2014 GA treaty body process and the five-year review of the Human Rights Council, make it difficult to imagine another GA review of the treaty body system leading to substantial improvements to the effectiveness of the system. Experience suggests that those states that would deliberately weaken the system would only use such a review to pursue their efforts to do that, and those that support the system would have to fight hard to preserve the status quo, possibly with some marginal incremental improvements. Even that scenario assumes that there will be influential state champions of the treaty body system at that time of a review, which is not a foregone conclusion given the state of UN and world affairs today.
It is good that OHCHR, treaty body members, academics, civil society and other friends of the treaty body system are developing ideas for improving the system so that they are prepared if the GA decides to launch a “review” of the treaty body system. However, as anyone who has followed the system over time knows, it is not ideas for improvement that are lacking. What is missing is the ability to gain broad agreement on which ideas to take forward and then to actually implement those ideas. It would be a much more prudent course of action to minimise the GA’s consideration of the treaty body system called for in 68/268 and endeavour to pursue reform incrementally and informally within the treaty body system. So for now, to paraphrase Voltaire, protect the treaty body system from its friends, it can defend itself from its enemies.