The United Nations And Human Rights: A Critical Appraisal [2nd Edition] 0198298374, 9780198298373, 0198298382, 9780198298380, 0191544779, 9780191544774

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The United Nations and Human Rights

The United Nations and Human Rights A Critical Appraisal Second Edition Edited by

F R É D É R IC M É G R E T AND PHILIP ALSTON

1

3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The Several Contributors 2020 The moral rights of the authors have been asserted First Edition published in 1992 Second Edition published in 2020 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2019946533 ISBN 978–​0–​19–​829837–​3  (hbk.) ISBN 978–​0–​19–​829838–​0  (pbk.) Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Preface This book appears at a particularly challenging moment in history in terms of governmental support for the United Nations’ human rights enterprise. The first edition was published in 1992, not long after the fall of the Berlin Wall, and just before the Vienna World Conference on Human Rights, which sought to lock in the commitment of all governments to a world governed largely in accordance with what were said to be truly ‘universal’ human rights precepts. The idea of a second edition was launched in those relatively halcyon days, but it is only now coming to fruition. There have been a great many delays along the way and we deeply regret the inconvenience caused as a result. But if there is a silver lining to the delays, it is that in the intervening period the UN’s human rights system has changed fundamentally. The Human Rights Council replaced a discredited Commission, half-a-dozen new treaty bodies were created, new complaints procedures adopted, and a host of additional special rapporteurships and other initiatives sprung up, as well as the flourishing of a highly active Office of the High Commissioner for Human Rights. We scrambled to commission new chapters, existing drafts needed radical updating, and the overall framework came to look very different from what had been presented in the first edition. It felt at times as if we were privileged witnesses, in real time, to some of the most interesting years during which this massive international endeavor to construct an effective international human rights regime was taking place. At any rate, we as editors take full responsibility for the delays and are mindful of the toll they have taken on our contributors. The challenge involved in bringing the project to a satisfying conclusion was fortunately matched by their stoic patience and generosity with their time. We would especially like to acknowledge Laura Reanda and Oscar Schachter who contributed draft chapters but subsequently passed away, and to thank Asbjorn Eide, Rudiger Wolfrum, Rosalyn Higgins, and Thomas Buergenthal who were all involved at different stages of the project. We would like to acknowledge the assistance and support of researchers and colleagues who have contributed along the way, including in particular Florian Hoffmann and Mara Bustelo. As the project finally came together, James Pender was instrumental in getting the whole volume into shape. Finally, we would like to express our gratitude to OUP, particularly John Louth and Merel Alstein, without whose steady guidance and encouragement the book might not have been completed, and to Afrose A for having guided the editorial process.

Contents List of Contributors

ix

Introduction: Appraising the United Nations Human Rights Regime

1

Philip Alston and Frédéric Mégret

PA RT I   T H E H UM A N R IG H T S M A N DAT E O F T H E P R I N C I PA L   O R G A N S 1. The Security Council Frédéric Mégret

39

2. The General Assembly Andrew Clapham

99

3. The Economic and Social Council Frédéric Mégret

131

4. The International Court of Justice Bruno Simma

151

PA RT I I   SU B SI D IA RY H UM A N R IG H T S   O R G A N S 5. The Human Rights Council Rosa Freedman

181

6. A Critical Appraisal of the Human Rights Council Advisory Committee Laurence Boisson de Chazournes and Andrzej Gadkowski

239

7. The Commission on the Status of Women Zehra F Kabasakal Arat

253

8. The Permanent Forum on Indigenous Issues Madeleine Heyward

291

PA RT I I I   O R G A N S M O N I T O R I N G T R E AT Y C OM P L IA N C E 9. The Committee on the Elimination of Racial Discrimination (CERD) Patrick Thornberry

309

10. The Human Rights Committee Ludovic Hennebel

339

viii Contents

11. The Committee on the Elimination of Discrimination Against Women Andrew Byrnes

393

12. The Committee on Economic, Social and Cultural Rights Philip Alston

439

13. The Committee against Torture and the Subcommittee for the Prevention of Torture Andrew Byrnes

477

14. The Committee on the Rights of the Child Christine Evans

519

15. The Committee on the Rights of Persons with Disabilities Janet E Lord and Michael Ashley Stein

547

16. The Committee on Enforced Disappearances Olivier de Frouville

579

17. The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families Vincent Chetail 18. Reform of the UN Human Rights Treaty Body System Suzanne Egan

601 645

PA RT I V   T H E G OV E R NA N C E O F H UM A N   R IG H T S 19. The High Commissioner for Human Rights Andrew Clapham

667

20. Human Rights Co-​Ordination Within the UN System Georges Minet

709

Index

745

List of Contributors Philip Alston is John Norton Pomeroy Professor of Law at NYU School of Law, and Director of the NYU Center for Human Rights and Global Justice. Zehra F Kabasakal Arat is Professor of Political Science at the University of Connecticut. Laurence Boisson de Chazournes is Professor of International Law and International Organization at the University of Geneva. Andrew Byrnes is Professor of Law at the University of New South Wales. Vincent Chetail is Director of the Global Migration Centre and Professor of International Law at the Graduate Institute of International and Development Studies, Geneva. Andrew Clapham is Professor of Public International Law at the Graduate Institute of International and Development Studies, Geneva. Olivier de Frouville is Professor of Public Law at the University of Panthéon-​Assas (Paris II) and Director of the Paris Center for Human Rights (CRDH). Suzanne Egan is Associate Professor at the Sutherland School of Law, at University College Dublin. Christine Evans is a Human Rights Officer in the Office of the United Nations High Commissioner for Human Rights. Rosa Freedman is Professor of Law, Conflict and Global Development at the University of Reading. Andrzej Gadkowski is Assistant Professor at the Faculty of Law, Canon Law and Administration, Catholic University of Lublin. Ludovic Hennebel is Professor of Law at Aix-​en-​Provence Law School, and Director of the Institute of International Humanitarian Studies, Aix-​Marseille University. Madeleine Heyward was a Lionel Murphy Postgraduate Scholar at New York University School of Law, and currently resides in Geneva. Janet E Lord is Senior Fellow at the Harvard Law School Project on Disability and Adjunct Professor of Law at the University of Maryland Carey School of Law. Frédéric Mégret is Full-​Professor and William Dawson Scholar at the Faculty of Law of McGill University. Georges Minet is an independent researcher, formerly of the International Labour Office. Bruno Simma is Professor of Law at the University of Michigan Law School. Michael Ashley Stein is Executive Director at Harvard Law School Project on Disability, Visiting Professor at Harvard Law School, and Extraordinary Professor at University of Pretoria Faculty of Law Centre for Human Rights. Patrick Thornberry is Emeritus Professor of International Law at the University of Keele.

Introduction Appraising the United Nations Human Rights Regime Philip Alston and Frédéric Mégret

Recent years have seen immense challenges to the international human rights regime. The resurgence of illiberal democracies around the world, nationalism and xenophobia in Europe, China’s domestic crackdown combined with its efforts to export its model of authoritarian capitalism, the Trump Presidency in the United States, Brexit, technological developments reflecting an ‘age of surveillance capitalism’,1 and the widespread adoption of neoliberal policies spurring rapidly growing inequality, have all served to put the regime on the defensive. These and related developments have also been accompanied by a substantial critical literature written from a diverse array of viewpoints questioning whether human rights still have a future and whether the techniques by which they have been promoted domestically as well as internationally retain their validity.2 But although the United Nations and its normative, institutional, and procedural human rights activities sits at the heart of the international regime, it has rarely been the subject of systematic analysis or evaluation in those contexts. This volume does not purport to take on that entire challenge but it does provide much of the essential material that is required to be taken into account by those who are looking to evaluate the contributions of the United Nations to the past, present, and future of the international human rights regime. Almost thirty years have passed since the first edition of this book was published. Since then the United Nations human rights regime has changed dramatically in almost every respect. In normative terms, major new instruments have been adopted addressing the situation of persons with disabilities, disappearances, indigenous ­peoples, and many other groups, and the rights of lesbian, gay, bisexual, transsexual, and intersex (LGBTI) persons are now squarely on the agenda from which they were 1 S Zuboff, The Age of Surveillance Capitalism:  The Fight for a Human Future at the New Frontier of Power (Harvard University Press, 2019). 2 D Kennedy, ‘The International Human Rights Regime: Still Part of the Problem?’ in R Dickinson et al (eds), Examining Critical Perspectives on Human Rights (Cambridge University Press, 2013) 19; S Hopgood, The Endtimes of Human Rights (Cornell University Press, 2013); M W Mutua, ‘Is the Age of Human Rights Over?’ in S A McClennen and A Schultheis Moore (eds), Routledge Companion to Literature and Human Rights (Routledge, 2016) 450; S Moyn, Not Enough: Human Rights in an Unequal World (Harvard University Press, 2018); E Posner, The Twilight of Human Rights Law (Oxford University Press, 2014); F Mégret, ‘Where Does the Critique of International Human Rights Stand? An Exploration in 18 Vignettes’ in J M Beneyto and D Kennedy (eds), New Approaches to International Law (TMC Asser –​Springer, 2012) 3.

2  Philip Alston and Frédéric Mégret then almost entirely absent. The number of states that have ratified key treaties has expanded significantly with, for example, the Convention against Torture moving from 73 States parties in 1992 to 165 in 2019, and the Convention on the Elimination of All Forms of Discrimination against Women going from 123 states to 189. The web of non-​treaty-​based procedures seeking to monitor compliance has grown much thicker and almost all states are held regularly to account for their human rights performance, especially by Special Procedures mandate-​holders whose numbers have almost tripled, and by the Universal Periodic Review which began only in 2008 but has already almost completed its third full cycle of reviewing the performance of every state. The number of treaty bodies has expanded from six to ten, and the powers of some of the committees have been expanded significantly. In terms of staff, the relatively small Center for Human Rights has been replaced by an Office of the High Commissioner for Human Rights, and the UN now employs over 1,300 personnel in the Office: 43 per cent of them are based in the field, and another 700 human rights officers are employed in thirteen UN peace missions or political offices. In 1992, 0.7 per cent of the UN budget went to the human rights programme, compared with 3.7 per cent in 2018–​19, more than a fivefold increase.3 The goal of this book is not to try to evaluate all of these diverse developments, let alone to gauge their impact on the actual enjoyment of human rights in the world. Rather, it is to trace the evolution of the principal institutional actors within this larger milieu. It is highly instructive to note the extent to which, since the first edition, institutions that were once central have declined in importance or disappeared altogether, whilst mechanisms that were once seen as peripheral have moved to centre stage. To cite but a few obvious examples: the Commission on Human Rights and the Sub-​Commission on the Prevention of Discrimination and Protection of Minorities no longer exist; the High Commissioner for Human Rights is now the foremost human rights focal point within the UN rather than the Secretary-​General himself; and the Security Council’s impact on human rights has completely eclipsed the role that the Economic and Social Council once had. These dynamics illustrate the extent to which the place of human rights within the broader constellation of global governance is susceptible to constant change. It also underscores the plasticity of the UN human rights regime, and its need for institutional adaptation in response to changes whether in the UN’s own role, in the overall international system, or in the challenges confronting the human rights movement. Different eras make different variants of the international human rights project conceivable: hopes once vested in certain institutions are not fulfilled; competition and overlap between organs create pressure for change; all the while, the system continues to develop dynamically by responding more effectively to the needs of previously neglected human rights constituencies such as women, children, migrant workers, indigenous peoples, and LGBTI groups. So much so that all chapters in this collection are 3 See UN Human Rights Report 2017 (Office of the High Commissioner for Human Rights, 2018), available at: https://​www2.ohchr.org/​english/​OHCHRreport2017/​pages/​introduction.html.

Introduction  3 new compared to the first edition. In addition, half a dozen chapters have been added, some eliminated, and others shrunk quite dramatically. At the same time, the questions asked in the first edition remain every bit as relevant as they were then. There are legitimate concerns from a human-​rights perspective about excessive institutionalization of what was after all once a radical project;4 some even worry that the UN will lose its specificity and soul by becoming too invested in human rights.5 The UN’s human rights activities are also criticized by a diverse array of states, including some from the Global South which see rights as a Trojan horse for liberal interventionism especially through the R2P concept,6 others which feel unjustly victimized,7 and some who believe that rights should only be promoted through dialogue rather than condemnation.8 The task of evaluation has been made all the more important as a result of the proliferation of populist, authoritarian, and illiberal democratic regimes in recent years, and their propensity to reject both the international human rights standards themselves and the institutional regime that seeks to monitor compliance with them. President Rodrigo Duterte of the Philippines has attacked a number of UN human rights experts and officials and withdrawn his country from the International Criminal Court. In June 2018, the United States withdrew from its membership in the UN Human Rights Council, with the Secretary of State labelling the Council ‘a poor defender of human rights’ and ‘an exercise in shameless hypocrisy’. He warned that the US would not work with organizations that undermine its national interests and its allies, or infringe its national sovereignty.9 Subsequently, the US ceased cooperating with UN mechanisms in relation to all domestic issues.10 And in August 2018, prior to his election as President of Brazil, Jair Bolsonaro indicated in response to a question about the role of the UN Human Rights Council that he proposed to withdraw Brazil from the UN.11 4 M Koskenniemi, ‘The Effect of Rights on Political Culture’ (1999) 99 in P Alston (ed), The EU and Human Rights (Oxford University Press, 2000) 112; H Charlesworth, ‘Not Waving but Drowning: Gender Mainstreaming and Human Rights in the United Nations’ (2005) 18 Harvard Human Rights Journal 1; M Koskenniemi, ‘Human Rights Mainstreaming as a Strategy for Institutional Power’ (2010) 1 Humanity:  An International Journal of Human Rights, Humanitarianism, and Development 47; F Mégret, ‘The Apology of Utopia; Some Thoughts on Koskenniemian Themes, with Particular Emphasis on Massively Institutionalized International Human Rights Law’ (2013) 27 Temple International and Comparative Law Journal 455. 5 I Wuerth, ‘International Law in the Post-​Human Rights Era’ (2017) 96 Texas Law Review 279. 6 M Serrano and T G Weiss, The International Politics of Human Rights: Rallying to the R2P Cause? (Routledge, 2014); T Liu and H Zhang, ‘Debates in China about the Responsibility to Protect as a Developing International Norm: A General Assessment’ (2014) 14 Conflict, Security & Development 403; S Laskaris and J Kreutz, ‘Rising Powers and the Responsibility to Protect: Will the Norm Survive in the Age of BRICS?’ (2015) 1 Global Affairs 149. 7 Israel has often complained bitterly of being discriminated against by UN human-​rights bodies. For a nuanced treatment of that issue see ‘Israel and the United Nations’, Public Lecture for the Bullock Chair, Hebrew University, Prof Stephen J Toope,19 May 2015, available at:  http://​canadianstudies.huji.ac.il/​.upload//​Public%20Lectures/​ Prof_​Toope_​Israel%20and%20the%20UN%20TEXT.pdf. 8 See A Kent, ‘China and the International Multilateral Human Rights System’ in S Biddulph and J Rosenzweig (eds), Handbook on Human Rights in China (Elgar, 2019) 61. 9 Remarks by Mike Pompeo, Secretary of State and Nikki Haley, US Permanent Representative to the United Nations, Treaty Room, Washington, DC, 19 June 2018, available at:  https://​geneva.usmission.gov/​2018/​06/​21/​ remarks-​on-​the-​un-​human-​rights-​council/​. 10 Ed Pilkington, ‘US Halts Cooperation with UN on Potential Human Rights Violations’, The Guardian, 4  January 2019, available at: https://​www.theguardian.com/​law/​2019/​jan/​04/​trump-​administration-​un-​human-​ rights-​violations. 11 https://​www.plataformamedia.com/​en-​uk/​news/​politics/​interior/​if-​im-​elected-​president-​i-​will-​leave-​the-​ un-​says-​bolsonaro-​9735658.html.

4  Philip Alston and Frédéric Mégret Of course, not all of the critiques should be given the same weight: some come from self-​acknowledged human-​rights violators and others from those who would throw the baby out with the bath water merely because they see fault with one part of the system. Indeed, the fact that the UN’s human rights activities, including finger pointing and occasionally more coercive measures, provoke such strong reactions is a sign that they are achieving something. Still, the pushback from both critics and sceptics highlights the need to discuss more thoroughly the successes and failures of the UN’s human rights regime. This book takes stock of these developments, more than seventy years after the adoption of the Universal Declaration of Human Rights, and critically assesses what they portend for both the UN and human rights. It does so by focusing on the UN as an institution, one which is the repository of many ambitions. It is first and foremost an international organization, a factor that largely determines the type of efforts it can deploy for the development and promotion of human rights. Institutionalization, moreover, creates particular challenges for human rights as a project. At the same time, one should be wary of counting mere institutional developments as the sum total of what the UN actually does for human rights. The history of human rights even at the UN is more than the sum total of the organs and acronym soup that are associated with human rights. The UN’s human rights regime is complex and may even appear incongruous to those encountering it for the first time. Committees, commissions, and councils coexist, without it being immediately obvious which are the most important and why; there often seem to be strange overlaps among some of its activities; the sometimes technocratic and jargonistic character of its institutional pronouncements may seem far from the ethos of human rights. There are inevitably tensions between the principled nature of human rights as a project, and the sometimes arcane institutional structures of the UN. At the same time, even as the system is accused of being too technocratic, it is also often alleged to be ‘politicized’, and acting as a sort of intergovernmental black hole into which the brightest human rights ideas disappear. But which is it? Can it be both? How does the UN’s complex amalgam of the political, the expert, and the technocratic affect prospects for human rights? And if the UN achieves anything in the area, does it do so despite or thanks to these characteristics? Several important points should be borne in mind when assessing the UN’s role in this area. First, the UN is only one part of a much broader international human rights regime. In addition to the UN itself there are various affiliated agencies such as the International Labour Organization (ILO), the World Health Organization (WHO), and the United Nations Educational, Scientific and Cultural Organization (UNESCO). Even more significantly, there are a number of regional organizations including the Council of Europe, the Organization of American States, and the African Union that have considerable significance. These regional human rights initiatives, for example, are significantly more focused on judicial adjudication. They also operate closer to the ground and in more homogeneous contexts than the United Nations, enabling them, in at least some cases, to make considerable headway towards the ideal of international human rights protection.

Introduction  5 To these intergovernmental bodies one must add the ever-​increasing role of civil society not only locally and nationally, but internationally and globally. Today, just as we are often reminded that some corporations have budgets and power that exceed those of small states, there are a number of international human rights non-​governmental organizations (NGOs) that clearly punch well above their weight in terms of influence, especially compared to some of the less influential United Nation bodies. The development of the global human rights regime owes much to the labour and energy of civil society groups. To cite but one example, most people outside the field of international human rights are more likely to have heard of Amnesty International than the Human Rights Committee or even the Human Rights Council. NGOs have been especially ­influential in the major international conferences on human rights and related issues, such as those held in Vienna in 1993, Beijing in 1995, and Durban in 2001. They are an important presence at the Council on Human Rights and submit shadow reports that are often crucial to the work of the treaty bodies. Their work thus straddles many facets of the UN’s activities. Whilst international officials and even experts are often ­somewhat constrained in their interaction with states, NGOs are able to adopt a much more combative posture. And even in an era when much is being written about shrinking civil society space as various governments seek to delegitimize, disable, or prosecute human rights proponents, new initiatives continue to breathe life into efforts by these actors.12 Notwithstanding the importance of other actors in the overall regime, the deep and varied legal mandates possessed by UN bodies, whether based on the UN Charter, widely ratified treaties, or other initiatives, give them a unique legitimacy and authority in developing human rights standards and policy and in engaging with governments and other actors. Indeed, the UN has by most standards succeeded in making itself the major hub of the international human rights regime. It is the foremost intergovernmental organization in the field, and one which has a huge impact on global governance and international policy-​making. There is no doubt that its activities have contributed in very large measure to creating, shaping, and implementing the human rights regime as a whole. It would be difficult, if not impossible, to understand, let alone evaluate, the overall regime without an understanding of the functions performed by the relevant United Nations ‘organs’. Second, it is important to recall how relatively unforeseeable it was at the outset that human rights preoccupations would become as prominent within the UN as they are today, even if their status seems ever more precarious. While human rights were always one of the three sets of ‘purposes’ of the organization, it was only relatively late that its objectives were repackaged as comprising the three pillars of security, development,

12 P Evans and C Rodríguez-​Garavito, Transnational Advocacy Networks:  Reflecting on 20  years of Evolving Theory and Practice (Dejusticia, 2018); R Youngs (ed), Global Civic Activism in Flux (2017); C Rodríguez-​Garavito and K Gomez (eds), Rising to the Populist Challenge: A New Playbook for the Human Rights Field (Dejusticia, 2018); and H Nichols Haddad, The Hidden Hands of Justice: NGOs, Human Rights, and International Courts (Cambridge University Press, 2018).

6  Philip Alston and Frédéric Mégret and human rights. At its creation, it was hardly a foregone conclusion that the UN would have much to do in practical terms with human rights; and it was certainly not created as an institution designed to deal primarily with rights. For the most part, its mission was to preserve international peace and security and increase cooperation between states. Its goals seemed concerned with the international superstructure rather than anything that might happen within states. Human rights did feature somewhat discreetly in its Charter,13 providing at least some sort of normative foundation and legitimacy for the efforts of those who sought to ensure that the UN would take human rights seriously. However, that foothold was largely ignored in its first decades and this could have remained so. The progress that has taken place has occurred against a backdrop of resistance to perceived meddling by the UN in their sovereign affairs, a response that continues to be prominent in the rhetoric of many states, even as they somewhat paradoxically engage actively in the relevant debates. Nonetheless, and for reasons documented extensively in this book, the place of human rights within the UN, and the size and significance of the relevant machinery, has continued to grow. There have certainly been setbacks, and human rights still compete with many other priorities,14 but over time human rights promotion has emerged as one of the signal functions of the United Nations. At the rhetorical level at least, as reflected in the ‘Human Rights up Front’ agenda promoted by Secretary-​General Ban Ki-​Moon (although downplayed by his successor), the UN is increasingly presented as an organization whose very raison d’être is to promote human rights.15 It is important to seek to understand how this change came about. Third, an important question is whether there might also be significant downsides to the growing connection between human rights and the United Nations. On one reading, strong engagement is surely a good barometer of how seriously human rights are taken internationally (depending in part on the times and the rights). It is difficult to imagine how else human rights could have been universalized, if not through the UN. At a minimum, the UN provides an international and even global forum to discuss human rights issues; in the best of cases, it provides a source of expertise; and occasionally it may be part of the enforcement or at least compliance inducement that is so crucial to human rights. At the same time, the human rights movement’s engagement with the UN comes with its costs. This is, after all, an organization of states, some of which are more committed to human rights than others, depending on the rights concerned and the timing. States will sometimes instrumentalize human rights discourse for ends that are, in effect, inimical to the goals of human rights. Debates may inflict wounds, leave scars, and undermine the idea of universal agreement that is so central to human rights. The ideal of human rights may be corrupted as a result. There is also the risk that the UN as 13 See Articles 1(3), 13(1)(b), 55(c), 56, 62, 68, and 76 of the UN Charter. 14 On human rights as merely a ‘limb’ of a much larger body, see L Henkin, ‘The United Nations and Human Rights’ (1965) 19 International Organization 504. 15 Human Rights up Front: An Overview (2016), available at: https://​interagencystandingcommittee.org/​system/​ files/​overview_​of_​human_​rights_​up_​front_​july_​2015.pdf.

Introduction  7 an international organization will renege on its commitment to human rights, for example when it senses that a principled stance might compromise the pursuit of some other significant other political, diplomatic or security goal. Finally, there is always the possibility that human rights will become mired in the administrative inertia and dull technocratization of any large international organization, and that the language of hope and activism will become a language of procedures and mechanisms. The relationship between the UN and human rights is thus infused with the tension between the project of human rights and that of universal organization, both promising projects in their own right but whose modi operandi may be incompatible in a multiplicity of ways, both foreseeable and not. It is to the study of some of these tensions that this book is devoted. The present chapter seeks to do four things. First, it sketches the broad nature of the institutional component of the UN regime by providing a brief overview of the individual human rights organs and of their relationship to one another. Second, it considers the contemporary evolution of human rights at the UN, distinguishing in particular between its Charter and treaty bodies. Third, it highlights some of the main challenges of evaluating the UN’s human rights work. Fourth, it considers what is, or should be, involved in the process of evaluating or appraising the effectiveness of the UN human rights regime as a whole and of individual organs.

I.1  A sketch of the UN human rights system The UN is an organization that pursues a range of goals and policies, including international peace and security and development. Human rights are therefore only one element among many and much of the hesitation about human rights at the UN can be explained by the pursuit of competing priorities. There is, moreover, a fundamental ambiguity about the relationship of human rights promotion and protection to the cardinal principle of sovereignty in the Charter. Indeed, a basic question that might be posed is whether the UN should be involved in human rights at all, and if so in what ways? Moreover, the UN is constrained in pursuing its policies by the inherent limitations of the international system, as well as the wishes and priorities of its member states. Clearly the UN as an international organization has a personality of its own under international law but that hardly means that its policies are entirely of its own making, in the sense that one might expect an NGO or even a state to have its ‘own’ human rights policy. In fact, to speak of a UN human rights policy is to speak of the actions and initiatives of myriad actors, not all of whom work consistently towards the same goals. The UN’s human rights ‘component’ is not exactly a coherent and well-​ designed whole, as much as the result of multiple attempts at reform and a constant reassessment of the place of human rights within the organization’s midst. Although the UN is sometimes described as having a ‘human rights machinery’, that may be a more imposing description than is warranted, even if it at least conveys the sense of a multiplicity of ‘mechanisms’ working more or less towards the same goal.

8  Philip Alston and Frédéric Mégret

I.2  The broad trajectory of human rights at the UN In principle, there was much enthusiasm for human rights at the UN’s beginnings, especially with the landmark adoption of the Universal Declaration in 1948. The UN Charter instructed the organization to promote human rights but without specifying what those rights were. Civil society groups the world over, governments and intergovernmental organizations made representations to the Commission on Human Rights about their hopes and aspirations as to both the content and the procedures for promoting human rights. At the same time, many of these early hopes were quickly dashed as the Cold War set in and the limits of what the UN could hope to achieve became quite clear. From the beginning, for example, states had made it abundantly clear that they considered the UDHR to be non-​binding, and that the role of the UN was confined to merely promoting human rights with states, as one among many other activities. As a result, the UN struggled to transcend invocations of sovereignty that were particularly hostile to any notion of practical human rights inquiry. The mere existence of the Commission did ensure that human rights would not simply go away. It followed its own course, gradually developing sui generis mechanisms, notably the procedures under ECOSOC resolutions 1235 and 1503, that would come to define much of its work and that gradually added some bite to human rights promotion. It moved such promotion from the very cautious and diplomatic starting proposition that it should only set standards, to one where it was increasingly open to the notion that it could also monitor state behaviour. For much of the Cold War, however, action on human rights seemed to be paralysed by shared great power interests in not encouraging undue scrutiny, outside a few causes célèbres such as South Africa and the Palestinian Occupied Territories. Instead, most of the action focused on the highly significant but more discreet and painstaking process of transforming the UDHR into a true ‘Bill of International Human Rights’ by encouraging the adoption of treaties. The adoption of the two Covenants, and of the CERD and CEDAW treaties, were all part of this invaluable early effort to formalize human rights into binding international instruments. Combined with the diligent work of the Sub-​Commission, the normative basis of the international human rights regime was laid gradually. In this context, one long popular description of the UN’s activities identified three key ‘phases’ of activity since 1947: standard-​setting (1947–​1954), promotion (1955–​ 1966), and protection (post–​1967). Each phase was said to have been devoted primarily to the activity in question. To the extent that such a description sought to convey the impression of a planned effort to move human rights gradually from paper to reality, it is misleading. In fact, the phases have been cumulative rather than one replacing the preceding one. As a result, recent decades have seen an acceleration of the pace of change and a mingling of these phases. With the adoption of three major international human rights treaties since 2000, and several other currently under consideration, it hardly seems as if standard setting is a moribund activity, even as promotion and protection activities have continued to be extensive.

Introduction  9 Overall, the human rights regime has had its ups and downs in the years since 1946, with growth spurts at regular intervals often followed by efforts to retrench. Major international conferences such as the Tehran (1968) and Vienna (1993) World Conferences on Human Rights proved to be major turning points that enabled various human rights ‘forces’ to regroup and push UN efforts in different directions. These also helped promote shared understandings about the proper place of human rights at the UN. There is no doubt that the UN’s human rights activities have further expanded in the last two decades, and that human rights have become at least rhetorically more central to what the organization does. There has been a systematic increase in the number of UN bodies devoted primarily to dealing with human rights matters, as well as a major increase in the time devoted by some of the existing ‘organs’ to the human rights part of their mandates. Indeed, some organs which traditionally had very little to do with human rights, such as the Security Council or the International Court of Justice, have become more active in that field. Another important phenomenon is the inclusion of human rights discussions in bodies with no formal human rights mandate but in which they increasingly form part of a broader conversation about the shape of various domestic and international policies. By the same token, there are strong pressures, led by China and its allies, to gradually diminish the centrality of human rights in the UN’s activities. Major reforms of the UN’s bureaucratic arrangements in 2019 have been portrayed as an effort to downgrade the attention previously given to human rights.16 This is therefore an unfinished and continuing process, one that remains precarious and subject to constant renegotiation. If we look back at the past seventy years of the evolving human rights regime at the UN, moreover, any depiction of the growth process as systematic, planned or even rational, would be largely unwarranted. The system has grown ‘like Topsy’ and the boundaries between the different organs are often only poorly delineated. Indeed, there is a degree of overlap between various bodies (most notably in the last decade between the reporting obligations under treaty bodies and the Human Rights Council) that has often proved resistant to reform. At times, describing it as a system or regime might even be misleading given the extent to which different parts of that system are pushing in different directions. For the most part, this incoherent pattern has been not entirely accidental. To begin with, the development of the UN human rights regime is crucially indebted to macro political developments and the resulting willingness or unwillingness of member states to take human rights on board. For example, the rise of the Third World led to significant investments by newly decolonized states in human rights like the right to self-​determination and the right to be free of racial discrimination. Similarly, the end of the Cold War ushered in a new era, inaugurated by the Vienna World Conference, and committed to greater gender equality and less defensiveness on the grounds of 16 B Crossette, ‘Reform Clouds Darken the Future of the UN Development Program’, Passblue, 28 January 2019, available at:  https://​www.passblue.com/​2019/​01/​28/​reform-​clouds-​darken-​the-​future-​of-​the-​un-​development-​ program/​.

10  Philip Alston and Frédéric Mégret sovereignty. By contrast, 9/​11 and the era that followed proved much less propitious to international rights monitoring, although the Arab Spring in 2011 opened up significant new opportunities in some areas and helped expedite the trend towards creating international commissions of inquiry.17 There is only so much that the UN can do about the influence of such world events given how fundamentally sensitive it is to them. Specific human rights debates within the UN also continue to be significantly influenced by global political conditions. The tendency of states to divide along geopolitical lines and regional groups has often proved a lasting obstacle to human rights initiatives. Divisions reflect deep disagreements about the proper weight that should be given to certain rights over others, as illustrated by the tension between individual and collective rights; civil and political and economic and social right; and human rights and national security. In order to overcome these sources of disagreement, coalitions that combine different political interests have sometimes emerged. Thus, for example, apartheid in South Africa offended both liberal individualist standards of equality as well as more far-​reaching notions of emancipation from colonial rule and an anti-​racist tradition. That relatively united front has not often been replicated at the UN. By the same token, some issues do seem capable of transcending the standard political divisions—​for better or for worse from the point of view of human rights. In a context in which almost every state claims to be ‘for’ human rights while at the same time seemingly disagreeing fundamentally about their content, it may be difficult to predict who will take which side on a range of cross-​cutting issues. Certainly the West does not have a monopoly over the contemporary meaning of international human rights law, even as human rights rhetoric remains crucial to its modes of intervention. On issues such as the death penalty, privacy in the era of technology, the rights of indigenous peoples, gender equality, or sexual orientation, new coalitions may emerge where states normally on opposite sides of a geopolitical divide nonetheless find common ground. In 2018, for example, the United States was on the same side in UN human rights debates as Iran, Russia, Saudi Arabia and others in opposing references to gender.18 Furthermore, the system’s complexity and inconsistency is the inevitable result of a multiplicity of actors seeking to achieve diverse, and even irreconcilable, objectives within the same overall institutional framework. If an existing body is considered unable to do a particular job, whether because of some intrinsic defects, sheer incompetence or, more likely, political disagreement, the preferred response will often be to set up yet another. In a very short space of time, states and individual actors may well then develop a vested interest in perpetuating the new body despite the duplication and inefficiencies involved. This pattern has often been repeated in order to accommodate the implementation of new policy agendas, to which existing bodies were perceived to be insufficiently responsive. Only occasionally does pent-​up frustration boil over to generate a more radical overhaul. This happened with the dumping of the Commission 17 C Henderson (ed), Commissions of Inquiry: Problems and Prospects (Hart, 2017). 18 J Borger, ‘Trump administration wants to remove ‘gender’ from UN human rights documents’, The Guardian, 25 October 2018.

Introduction  11 and its replacement by the Human Rights Council—​although how much of an overhaul that really turned out to be is open to debate. In general, it can be concluded that efforts to identify and describe steady and principled patterns in the evolution of the various procedures are misplaced and misleading. One interesting dynamic in this context is the relationship between human rights discourse and international human rights law. The quest to give legal form and status to human rights principles drove many of the early efforts to entrench human rights within the UN. The result has been a significant correlation between the development of the substantive international law dimension and the creation of specific mechanisms. The treaty bodies are the clearest illustration of this link since they are set up pursuant to particular treaties and adopt a more or less legalistic approach to the monitoring of state conduct. But it is also the case that much of what might be characterized as human rights work proceeds relatively independently of legal standards, reflecting the fact that not all developments within the human rights regime are necessarily legal developments. And even when they are legal, this does not necessarily lead to any particular promotional, monitoring or enforcement outcome beyond a broad commitment, perhaps, to the notion that human rights should be taken seriously as law. At any rate, pragmatism, rather than principle has been the touchstone of the UN’s evolution. This is especially apparent in almost any aspect of the activities of the Charter-​ based organs. Examples include:  the reticence of those organs in spelling out the normative basis on which they are acting in specific cases in condemning violations, especially in relation to states which are not parties to relevant treaty regimes; their failure to adopt any particular framework designed to enhance the integrity and perceived objectivity of fact finding activities, including commissions of inquiry; and their reluctance to identify principles which would assist in determining the circumstances under which technical assistance (advisory services) should be offered to states as well as the kind of assistance that might appropriately be provided when violations are involved. In each case, the main organs have tended to adopt ad hoc approaches from which lessons might or might not be drawn for application in subsequent cases. It is tempting to speak in highly critical terms of this evolution and to rue the lack of coordination, of a rational division of labour, and of any clear institutional blueprint. But while there is indeed much to criticize, it must also be borne in mind that this unstated preference for ‘letting a hundred flowers bloom’ was largely responsible for the capacity of the system to respond to new circumstances and to take advantage of new opportunities. It may simply be inevitable that a sprawling organization such as the UN should have a human rights machinery to match: one that is complex, disaggregated, and sometimes contradictory. Moreover, on occasion, pressure has accumulated for transcendent reforms, for example to create the post of High Commissioner for Human Rights, to establish the Human Rights Council, or to mainstream human rights within the overall UN structure. The extent to which such institutional initiatives have brought enduring systemic change remains disputed given the inertia of ingrained habits, but they belie a narrative of despair.

12  Philip Alston and Frédéric Mégret

I.3  Classifying the organs Various analytical classifications have been used in order to distinguish different types of UN human rights organs. The main one is that which opposes those composed of governmental representatives to those composed of experts. The latter might be elected or appointed, but are for the most part nominated by governments. From that starting point, analysts have suggested several dichotomies—​expert/​governmental, expert/​political, legal/​political and so on—​to describe the composition, the modus operandi or the basis of decision-​making. To those categories may be added judicial/​non-​judicial (with quasi-​judicial as a commonly used but somewhat problematic intermediate classification). While these might seem to be straightforward labels, they are often used to convey a political message as well. For example, governmental officials may wish to emphasize their representativeness and thus their pre-​eminence in the decision-​making hierarchy. ‘Experts’, on the other hand, may wish to disclaim any political, or non-​technical, influences upon their analyses. In UN institutional terms, such distinctions (for example, ‘X’ is an expert committee, whereas ‘Y’ is a political body) are very useful because they constitute a form of shorthand to indicate the type of membership profiles to be expected, the procedures to be used, and the outcomes envisaged. More fundamentally, they serve different functional needs. Thus, it is crucial to have experts who are independent from the UN and, more importantly, their own governments, in order to further a less partisan vision of human rights. At the same time, the UN remains an organization of states and it is to some extent essential, especially when it comes to implementation and enforcement, for it to be able to rely on their authority and political good will. But such analytical distinctions might also be less helpful than they appear to be. First, the different connotations that attach to terms such as ‘expert’ or ‘political’ derive less from any natural or inherent meaning than from the usage that has grown up around the terms in UN practice. It is thus unsurprising that insights from theory as well as practice confirm their limited utility for other purposes. For example, March and Olsen argue that, despite the characteristics usually associated with each approach, ‘a sharp division of labor between specialists and policy-​makers is impossible to sustain, either conceptually or behaviorally’.19 In some respects the same comment applies to the bodies themselves. Second, a degree of overlap is involved insofar as the main intergovernmental ‘political’ body, the Human Rights Council, can designate special rapporteurs or commissioners who are themselves experts. Third, the High Commissioner for Human Rights represents a third category of someone who is neither an independent expert nor a government representative. She is a UN civil servant who serves as a focal point for human rights at the UN, but at the same time enjoys a degree of autonomy to speak out that far exceeds that of ordinary UN civil servants.

19 J March and J Olsen, Rediscovering Institutions: The Organizational Basis of Politics (The Free Press, 1989) 30.

Introduction  13 A more useful analytical distinction is between those organs established by reference to the provisions of the UN Charter (Charter-​based organs) and those emerging on the basis of provisions in specific treaties (treaty-​based organs). This distinction was, of course, unavailable—​or at least meaningless—​until 1970 when the first of the UN’s human rights treaty bodies met for its inaugural session. Since that time a clearly discernible two-​track approach to institutional arrangements has emerged, with Charter bodies typically more intergovernmental and policy-​oriented, and treaty bodies more expert focused and legal—​with the caveats in the previous paragraph about how these categories sometimes blend. Put succinctly, the essential role of each of the treaty bodies is to monitor and encourage compliance with a particular treaty regime, while the political organs have a much broader mandate to promote awareness of and respect for human rights, and to respond to violations thereof. Treaty bodies have been established either pursuant to the terms of a specific treaty or for the specific purpose of monitoring compliance with one. They thus have a limited clientele, consisting only of States parties to the treaty in question; a clearly delineated set of concerns reflecting the terms of the treaty; a particular concern with developing the normative understanding of the relevant rights; a limited range of procedural options for dealing with matters of concern; an incentive to be cautious in setting precedents and to use consensus-​based decision-​making to the greatest extent possible; and a non-​adversarial relationship with States parties based on the concept of a ‘constructive dialogue’. Charter-​based organs on the other hand derive their legitimacy and their mandate, in the broadest sense, from the human-​rights-​related provisions of the Charter. Their fidelity is more to the Charter itself, where treaty bodies look to the terms of their particular treaty. Because the political organs typically focus on a more diverse range of issues and are not confined to the terms of a given treaty, their competence is more universal and every state is an actual or potential ‘client’ (or respondent), regardless of its specific treaty obligations. The processes followed, whether by the Human Rights Council, the General Assembly, or the Security Council, are overtly political. They can engage, as a last resort, in adversarial actions vis-​à-​vis states; are more openly influenced by public opinion; do not hesitate to take decisions on the basis of strongly-​contested majority voting; often pay comparatively little attention to normative issues; and are very wary about establishing specific procedural frameworks within which to work, preferring a more ad hoc approach in most situations. Charter and treaty bodies also differ in their degree of concern with human rights policy as opposed to human rights law. While the two may be closely related, they are not the same thing. Treaty bodies for example are more focused on legal developments, the Human Rights Council is more interested in implementation, and the High Commissioner stands somewhere in between. This is particularly obvious when new treaty bodies are created and get down to the task of developing a jurisprudence linked to the newly proclaimed rights. But even bodies not specifically engaged in treaty monitoring will often devote considerable attention to the elaboration of new standards. Thus, for example, many Special Rapporteurs have taken it upon themselves

14  Philip Alston and Frédéric Mégret to develop ‘guiding principles’, norms, or other standards that enrich the overall corpus of international human rights law if only as ‘soft law’. In fact, it is easy to overstate the differences between the two types of organ and to under-​estimate the ability of one type to emulate certain characteristics of the other. Thus a Charter-​based organ might occasionally choose to play down its political character and devote some of its efforts to a systematic clarification of the normative content of a specific right, whilst a treaty-​based organ might play down its constructive dialogue approach in order to indicate its strong disapproval of a state’s behaviour. Or take the role played by the High Commissioner for Human Rights and human rights ‘mainstreaming’ (as described in Georges Minet’s chapter in this collection): the former makes important inputs into the work of both Charter and treaty bodies, while the latter seeks to ensure that human rights are taken into account throughout the UN by a diverse range of institutional actors. Mainstreaming draws on the work of both types of bodies and does not fall neatly within the Charter/​treaty dichotomy.20 Nevertheless, the differences of mandate, content, and style between the two types of organs are sufficiently clear and consistent as to justify using this as the principal distinction for purposes of the analysis in this book.

I.4  Evolution of the UN system The entire UN human rights machinery has changed significantly, especially over the past four decades. The Charter/​treaty body distinction has remained quite firm, but efforts are increasingly made for one to reinforce the other. For example, the Universal Periodic Review undertaken by the Human Rights Council is a quintessentially political exercise conducted among peer states, but it relies heavily upon information generated by the treaty bodies and by the Council’s Special Procedures network of independent experts.21 Similarly the annual coordination meeting of treaty-​body chairs, and the annual meeting of Special Procedures mandate-​holders (including Special Rapporteurs) regularly explore ways in which the work of one group can reinforce or draw upon that of the other. Problems of duplication have by no means been eliminated, but efforts have been made to both minimize and profit from them and to ensure that the overall logics of the respective systems reinforce one another.

I.5 Charter bodies There have been major changes in the roles played vis-​à-​vis human rights by the principal Charter bodies. While the Charter defined the International Court of Justice, 20 P Hunt, ‘Configuring the UN Human Rights System in the “Era of Implementation”:  Mainland and Archipelago’ (2017) 39 Human Rights Quarterly 489. 21 A Nolan, R Freedman, and T Murphy, The United Nations Special Procedures System (Brill Nijhoff, 2017).

Introduction  15 the Trusteeship Council, the General Assembly, the Economic and Social Council (‘ECOSOC’), the Security Council, and the Secretariat as organs of equal importance, this institutional formalism does little to conceal the deeper assumptions of the framers of the UN Charter as to the existence of an implicit organizational hierarchy. For example, the Security Council, with the veto power vested in each of the five permanent members, was clearly at the head of the pecking order, with the General Assembly next in line. While the other organs were each allocated significant spheres of institutional competence, they were, in any general political sense, inferior to the other two. Nonetheless, it has become clear that the place occupied by a given organ within the Charter’s general hierarchy does not necessarily determine its human rights relevance or impact. An organ could be very powerful but not particularly concerned with human rights (the Security Council until the 1990s) or relatively secondary in status but pre-​eminent for human rights (the Commission on Human Rights). During the first decades of the UN, the Security Council’s role was one of studied indifference, or at least political inability to act forcefully to prevent or respond to human rights violations. By contrast, the General Assembly had the most significant profile in terms of human rights both in its own right and through its various committees, exercised a significant role. The role of ECOSOC as the parent body to the Commission on Human Rights which in turn supervised the Sub-​Commission on the Prevention of Discrimination and Protection of Minorities, should have remained central but actually ceded ground dramatically to the General Assembly in the 1970s. Nevertheless, the Assembly’s attention was focused on a much broader range of issues, of which human rights was only one. And its initial focus on human rights was confined to issues such as the right to self-​determination and the fight against apartheid, although in later years it took up the New International Economic Order agenda, as well as a limited set of key situations involving gross violations. Understanding how that role has continued to evolve, despite the clout of the Human Rights Commission and then Council, is the object of one of Andrew Clapham’s chapter in this collection. The end of the Cold War opened an era of intense competition over the proper definition of the UN’s approach to human rights and led to a significant re-​alignment of institutional responsibilities. A first clarification occurred with the creation of the post of High Commissioner for Human Rights, one of the most concrete outcomes of the Vienna Conference on Human Rights. This initiative responded to the perceived need to have a human rights ‘champion’ within the UN, or at least a senior official who would be specifically dedicated to the promotion of human rights. This could be seen as an implicit critique of what had until then been the rather ambiguous role of the Secretariat in this area, and it was not surprising that the Secretary-​General at the time, Boutros Boutros-​Ghali, responded very negatively to the initiative.22 For several decades successive Secretaries General had rarely missed an opportunity to affirm their frequent use of a ‘good offices’ role to promote the realization of human 22 See generally F Gaer and C Broecker (eds), The United Nations High Commissioner for Human Rights: Conscience for the World (Martinus Nijhoff, 2014).

16  Philip Alston and Frédéric Mégret rights, although given the confidential nature of such interventions it was (and still is) difficult to know whether they actually achieved very much. Even Kofi Annan, the first Secretary-​General to be more openly committed to the role of human rights, was not ready to use his limited clout to weigh in heavily on human rights matters. In this context, the creation of the High Commissioner for Human Rights arguably relieved the Secretary-​General of a significant part of what human rights leadership role his office should have had, at least outside those domains where it has a more specific competence, such as in relation to UN staff and peacekeeping. Indeed, whereas the previous edition of this book contained a full chapter on the Secretary-​General, that role has now been folded into that of the High Commissioner, who continues to report to the Secretary-​General, but in practice has regularly asserted a separate and significantly independent role. The role of the Secretary-​General is thus discussed merely briefly in Andrew Clapham’s chapter on the High Commissioner. For its part, the Security Council has gradually confirmed its role, especially at the end of the Cold War, as effectively the most important body within the United Nations given its role in maintaining international peace and security and its ability to authorize the use of force and to create peacekeeping missions. The role that it has played in relation to human rights, however, remains complex, as argued by Frédéric Mégret in his chapter. For the first decades of its existence, the Council was reluctant to take on a human rights role given its focus on international peace and security. But references to human rights issues became much more common in Council debates starting in the 1990s, especially as human rights began to provide part of the justification for setting up some peace missions. That movement has tended to intensify with the rise of international criminal justice and the tendency to both justify Council interventions on the basis of human rights and humanitarian law violations, and to in turn draw on those bodies of law as a way of addressing breaches of international peace and security. The promotion of R2P has become largely conceptualized as an effort to bind the Security Council to a more forceful agenda for the promotion of rights. That development remains controversial given the power of the permanent members of the Council and concerns that it will unduly politicize rights. Somewhat less powerful but potentially the most important of the Charter bodies in human-​rights terms are the General Assembly, the Human Rights Council, and, to a lesser extent, the Commission on the Status of Women. The Human Rights Council replaced the Commission on Human Rights and the Sub-​Commission. Despite criticisms that it has reproduced some of its predecessor’s shortcomings, it has succeeded in consolidating the significance of human rights at the UN. In contrast, the Human Rights Advisory Council which effectively replaced the Sub-​Commission has not gained anything like the prominence of its predecessor, as shown in the chapter by Laurence Boisson de Chazournes and Andrzej Gadkowski in this book. Of the other principal bodies, one has definitely increased its relevance for human rights, one has largely abandoned any significant human rights role, and another has been consigned to irrelevance. The first is the International Court of Justice. A priori, the International Court of Justice (ICJ) has always been difficult to situate in relation

Introduction  17 to the remaining organs, primarily because it is first and foremost an international law rather than a human rights body. For many decades, its role was marginalized by the Cold War and the general reluctance of states to commit themselves to accept the decision of an independent arbiter. The attitude of many states in the Global South towards the Court, especially after its early decision in the second phase of the South West Africa Cases, was ambivalent at best and hostile at worst. When its contentious jurisdiction was used, it was far more likely to be to settle traditional matters of international law such as border or maritime disputes than human rights questions. In the last two decades, however, as Bruno Simma argues in his chapter, the ICJ has assumed much greater salience in the international system. Surprisingly, this has been due in no small part to the interest fuelled by human-​rights-​related disputes and requests for advisory opinions. This has involved the adjudication of diverse issues such as diplomatic protection of persons facing the death penalty, the immunities of UN rapporteurs and of current and former heads of state, or the legality of either using nuclear weapons or building a wall on occupied territory, all of which have had human rights implications broadly understood. As a result of that resurgence, a specific chapter is devoted to the ICJ’s role, whereas it was absent from the first edition of this book. Of considerably less interest is the ECOSOC. Not only has it never been the UN’s most significant human rights body but the potentially important role it could have had has never come close to being realized. In the early years it served as an intermediary between the Assembly and the Commission on Human Rights, but by the 1970s it had come to do little more than rubber stamp the Commission’s work. As Frédéric Mégret notes in his chapter, its significance lies principally today in its ability to affect civil society participation in UN human rights debates through its role in determining which NGOs receive much sought-​after observer status with the UN. Despite the obvious relevance of human rights to economic and social matters, therefore, the encounter between the two has largely been a failed one at ECOSOC. Finally, one principal organ whose contribution is not dealt with here is the Trusteeship Council. This omission is due to the fact that its history has been adequately analysed elsewhere and, more importantly, to the fact that its work has now been largely completed.23 Indeed, references to the Trusteeship Council in today’s human rights literature are much more likely to examine how the Council can be transformed into a super-​Human Rights Council than to consider the tiny and ever-​dwindling agenda that it still retains.

I.6 Treaty bodies The evolution of the treaty bodies has been determined less by the overall governance structure of the UN and more by developments in the field of international human rights 23 A Hassan, ‘A Mandated Spectre:  The Present Anomaly of the United Nations International Trusteeship System’ (2017) 2 Perth International Law Journal 28.

18  Philip Alston and Frédéric Mégret law itself. Since the Committee on the Elimination of All Forms of Racial Discrimination (CERD), which is the object of Patrick Thornberry’s chapter in this collection, first met in January 1970, the treaty-​based system has expanded at a rate which is without precedent in the field of international organization. There are now no less than ten treaty bodies, all of which are analysed in this book. In addition to the CERD, these are: the Human Rights Committee (CCPR) (Ludovic Hennebel in this book), the Committee on Economic, Social and Cultural Rights (CESCR) (Philip Alston), the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) (Andrew Byrnes), the Committee against Torture (CAT) and the Subcommittee on Prevention of Torture (SPT) (Andrew Byrnes), the Committee on the Rights of the Child (CRC) (Christine Evans), the Committee on Migrant Workers (CMW) (Vincent Chetail), the Committee on the Rights of Persons with Disabilities (CRPD) (Michael Stein and Janet Lord), and the Committee on Enforced Disappearances (CED) (Olivier de Frouville).24 The proliferation of treaty bodies reflects diverse phenomena: a certain fragmentation of human rights advocacy and promotion among groups with particular rights concerns, such as children, migrant workers, and persons with disabilities; a logic of specialization (for example torture and disappearances might readily be dealt with by the Human Rights Committee, but the argument is that a more focused and specialized body is necessary); and both the relative enthusiasm of civil society for specialist treaty bodies as well as the continued willingness of states to ratify new instruments. Unsurprisingly, efforts to merge treaty bodies have often met serious resistance from those who consider that this would detract attention from the specific issues at stake and deprive the treaty bodies of very focused expertise.25 But the multiplication of treaty bodies has not necessarily meant a proportionate increase in overall influence. Some have even suggested that it has dissipated their power and made them less connected to the Charter bodies.26 Although there are some practical differences among the treaty bodies, such as the fact that CESCR was created by ECOSOC; and the Sub-​committee on Torture does mostly field work, all function along broadly similar lines in terms of expertise and methods of work, which makes studying them jointly and comparatively a fruitful endeavour.27 In brief, each of the treaty bodies performs the task of monitoring States parties’ compliance with their obligations under the relevant treaty. They do so primarily through a dialogue with the representatives of each of the States parties on the basis of a detailed report (an ‘initial’ report, followed by ‘periodic’ reports at approximately 4–​5 year intervals). The principal outcome of this process is the record of the resulting dialogue and the Committee’s identification of the key issues in its concluding 24 L Oette, ‘The UN Human Rights Treaty Bodies:  Impact and Future’ in G Oberleitner (ed), International Human Rights Institutions, Tribunals, and Courts (Springer, 2018) 95. 25 See generally S P Subedi, The Effectiveness of the UN Human Rights System Reform and the Judicialisation of Human Rights (Routledge, 2017). 26 C A Spenlé and G C Stäubli, ‘The Weakness of the Present System of Treaty Monitoring and the Discussion of Reform in General’ [2010] International Law, Conflict and Development 355. 27 W Vandenhole, The Procedures Before the UN Human Rights Treaty Bodies:  Divergence Or Convergence? (Intersentia nv, 2004).

Introduction  19 observations. These provide an opportunity for the Committee as a whole to assess the extent to which the State party appears to be in compliance, or otherwise.28 The extent to which states then comply with the treaty bodies’ recommendations has been the subject of few empirical studies, but results tend to be better in states that are already reasonably respectful of human rights.29 Each of the Committees also adopts carefully drafted statements in the form of General Comments (or some comparable terminology), which purport to draw directly on the Committees’ work in examining reports, and which seek to elaborate upon the normative content of particular rights or to address specific issues that have arisen. The proliferation of treaty bodies has brought with it a greater likelihood that competing and even conflicting jurisprudential interpretations will emerge. One of the most symbolic and visible tools possessed by treaty bodies is their ability to consider ‘communications’ or petitions. All of the principal treaties anticipate that possibility, which typically requires a specific opt-​in (normally through ratification of a separate Protocol) by States parties. The outcomes of these procedures generate the closest thing to a systematic UN ‘jurisprudence’ on human rights30 and, although the ‘final views’ are often succinctly and unevenly argued,31 they provide instructive and potentially authoritative statements about the interpretation of the relevant treaties over time. Even if each procedure inevitably takes time to become known, most have attracted a steady flow of petitions, although most are rejected at the admissibility stage. Finally, there are two forms of detailed inquiry into the situation in a particular state. The first is an inter-​state complaints mechanism which exists in some of the treaties, but has been used exceedingly sparingly. The second is the possibility for a treaty body to undertake a confidential inquiry in loco in response to allegations of systematic, grave, or serious violations. CEDAW, CAT, and the CRPD have all undertaken important inquiries utilizing this procedure which was originally modelled on a provision in the Convention against Torture. States’ degrees of engagement with the treaty bodies varies considerably, but for the most part continuing and meaningful exchange has been achieved. Even though states are inevitably on the defensive, some of them are quite committed to making the most of the opportunity for dialogue, and it not unheard of for legislative, administrative, or policy changes to result from the reporting process. It is no coincidence that civil society has been increasingly involved in reporting, often drafting ‘shadow reports’ that typically provide a very different picture of the state’s human rights performance when compared with the official report. The treaty bodies are therefore one of the key sites of

28 M O’Flaherty, ‘The Concluding Observations of United Nations Human Rights Treaty Bodies’ (2006) 6 Human Rights Law Review 27. 29 J Krommendijk, ‘The (In)Effectiveness of UN Human Rights Treaty Body Recommendations’ (2015) 33 Netherlands Quarterly of Human Rights 194. 30 A Conte and R Burchill, Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee (Routledge, 2016). 31 K Mechlem, ‘Treaty Bodies and the Interpretation of Human Rights’ (2009) 42 Vanderbilt Journal of Transnational Law 905.

20  Philip Alston and Frédéric Mégret production of international human rights law by the UN and one where the tension between universalism and subsidiarity is often addressed.32 There is no formal hierarchy among the treaty bodies, although the Human Rights Committee discussed in Ludovic Hennebel’s chapter tends to have the potentially most comprehensive mandate and to have been endowed with the greatest resources in terms of meeting time and Secretariat assistance. But the treaty bodies regularly deal with common substantive issues, including that of discrimination, and face many of the same administrative and logistical obstacles.33 The relationship among them and the need for measures to promote better coordination, to reduce overlapping, to avoid conflicting approaches, and to reduce the burden imposed on states that are parties to many different treaties, have been addressed by UN organs since 1989.34 The internal mechanism for doing so is the Meeting of the Chairpersons of the Human Rights Treaty Bodies which has been convened since 1984. But states have also pushed hard for more fundamental reforms, as described by Suzanne Egan in her chapter, and these demands have been reinforced by chronic delays in considering reports, large backlogs in reporting by states, and an element of competition from the UPR. Proposals have focused on eliminating some of the treaty bodies,35 merging them, consolidating reporting obligations across different treaties,36 or even creating an ‘International Human Rights Court which, in some versions, would take over all of the treaty bodies work in considering complaints’.37 While the High Commissioner has weighed in,38 along with key stakeholders,39 far-​reaching reform still seems a long way off. In the meantime, increasing attention is being given to the ongoing question of the treaty bodies’ legitimacy, spurred especially by instances in

32 T J Mellsh, ‘From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies’ (2009) 34 Yale Journal of International Law 389; D McGoldrick, ‘A Defence of the Margin of Appreciation and an Argument for its Application by the Human Rights Committee’ (2016) 65 International Comparative Law Quarterly 21; P G Carozza, ‘Subsidiarity as a Structural Principle of International Human Rights Law’ (2003) 97 American Journal of International Law 38; P Alston, ‘The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights’ (1994) 8 International Journal of Law, Policy and the Family 1; D L Donoho, ‘Autonomy, Self-​Governance, and the Margin of Appreciation: Developing a Jurisprudence of Diversity within Universal Human Rights’ (2001) 15 Emory International Law Review 391. 33 W Vandenhole, Non-​Discrimination and Equality in the View of the UN Human Rights Treaty Bodies (Intersentia nv, 2005); A Edwards, ‘Violence against Women as Sex Discrimination: Judging the Jurisprudence of the United Nations Human Rights Treaty Bodies’ (2008) 18 Texas Journal of Women and the Law 1. 34 Initial report on enhancing the long-​term effectiveness of the United Nations human rights treaty system, by the independent expert, Mr Philip Alston, UN Doc A/​44/​668 (1989). 35 H B Schöpp-​Schilling, ‘Treaty Body Reform: The Case of the Committee on the Elimination of Discrimination Against Women’ (2007) 7 Human Rights Law Review 201. 36 For a comprehensive review see Chapter 18 below. 37 J Kozma, M Nowak, and M Scheinin, A World Court of Human Rights: Consolidated Statute and Commentary (Neuer Wissenschaftlicher Verlag, 2010); J Kirkpatrick, ‘A Modest Proposal: A Global Court of Human Rights’ (2014) 13 Journal of Human Rights230; P Alston, ‘Against a World Court for Human Rights’ (2014) 28 Ethics & International Affairs 197; M Nowak, ‘A World Court of Human Rights’ in G Oberleitner (ed), International Human Rights Institutions, Tribunals, and Courts (Springer, 2018) 271; and F D Gaer, ‘The Institutional Future of the Covenants:  A World Court for Human Rights?’ in D Moeckli and H Keller (eds), The Human Rights Covenants: Their Past, Present, and Future (Oxford University Press, 2018). 38 S Egan, ‘Strengthening the United Nations Human Rights Treaty Body System’ (2013) 13 Human Rights Law Review 209. 39 M O’Flaherty, ‘The Dublin Statement on the Process of Strengthening of the United Nations Human Rights Treaty Body System’ (2010) 28 Netherlands Quarterly of Human Rights 116.

Introduction  21 which their interpretations are perceived to have strayed far from what states originally intended.40

I.7  The challenge of evaluating the UN’s human rights record It has been argued that promoting human rights at the UN would be necessary even if it were not particularly, or only very partially, successful. Louis Henkin once hinted at the possibility, for example, that ‘[i]‌t may be that the international community could not abandon or desist from pursuing an international human rights program even if doubts as to its efficacy were overwhelming’.41 Leaving aside the question of whether the elimination of such a programme is still as unthinkable as Henkin suggested, it is surely necessary to go beyond symbolism and undertake a more probing inquiry into the utility and relevance of the UN’s work in this area. Emphasizing the UN’s symbolic function risks underselling both its potential and its achievements. The question then is how to go about evaluating the performance of an unwieldy entity such as the UN, whose human rights ways are often manifold and mysterious. While this is an important issue for scholars, it is also of concern to states and the UN itself. States have regularly sought to evaluate what has been achieved, perhaps most notably in the context of the World Conference on Human Rights in Vienna in 1993. Similarly, moves to replace the Commission on Human Rights in 2005 were partly driven by criticisms of its performance and a perceived need, both external and internal, to improve the intergovernmental human rights machinery at the UN. Thus, the UN is not only ‘doing’ human rights, but also constantly ‘evaluating’ itself, with more or less success. After all, human rights promotion and enforcement is costly, not so much in financial terms but because of its diplomatic and political costs, including a potential ‘opportunity cost’ (what the UN could be doing if it was not seeking to promote human rights or not seeking to do so in the way it happens to have prioritized). Civil society groups have also undertaken some detailed analytical studies of the UN’s human rights programmes, but these tend to be focused on one particular activity, such as the procedures of the Human Rights Council,42 the universal periodic review,43 petitions systems,44 or the functioning of commissions of inquiry.45 They also tend to devote little, if any, attention to spelling out the criteria for effectiveness or success. On the scholarly side, there has been much commentary on various aspects of the UN’s human rights activities focusing on its impact and the need for reform.46 But there

40 H Keller and G Ulfstein, ‘Introduction’ in L Grover (ed), UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge University Press, 2012). 41 L Henkin, The Age of Rights (Columbia University Press, 1990) 69. 42 Universal Rights Group, Report on the Human Rights Council Strengthening Conference (2018). 43 UPR Info, UPR Mid-​term Reporting: Optimising Sustainable Implementation (2018). 44 Universal Rights Group, Reform of the UN Human Rights Petitions System: An Assessment of the UN Human Rights Communications Procedures and Proposals for a Single Integrated System (2018). 45 T Piccone, U.N. Human Rights Commissions of Inquiry: The Quest for Accountability (Brookings, 2017). 46 ‘Editorial’ (2007) 7 Human Rights Law Review [i].

22  Philip Alston and Frédéric Mégret have been few efforts to develop a systematic framework of evaluation. In the 1980s and 1990s, several studies attempted to make sense of the puzzle, viewed from an international relations point of view, of how an organization composed of governments could actually take seriously its mandate to implement human rights.47 For the most part, commentary on the UN’s overall human rights performance remains limited and segmented. Many authors are interested in the global human rights regime and only tangentially in the role of the UN in promoting it; many are interested in very specific aspects of the UN’s overall activity such as the Human Rights Council or the Security Council, or specific problems therein but adopt a functional institutional approach;48 some are only interested in normative developments whilst others focus only on policy; and some focus on the record of states in the UN context rather than the UN itself.49 Moreover, many of the studies are surprisingly inconclusive.50 There is clearly a gap in the literature in terms of focusing on the UN as an institution committed to human rights in ways that are neither too general nor too narrowly technocratic.

I.8 Methodological challenges Several fundamental challenges lie in the way of a proper evaluation of the UN’s human rights record. We suggest four in particular. The first is the extent to which the UN should be judged by its own criteria of success or by something more objective. Within the UN itself there has tended to be an emphasis upon what might be termed bureaucratic indicators such as the number of pages of documents ‘processed’, the number of meetings serviced, the number of trips undertaken, or the number of observers and NGOs at meetings. In 2014, the General Assembly concluded its efforts to reform treaty bodies by mandating the UN to assess the future needs of treaty bodies in terms of meeting time and the corresponding level of human and financial resource requirements, based on the number of State party reports and individual communications received and the workload targets specified in the resolution. As a result, a detailed report along with voluminous statistical annexes is now provided to the

47 D P Forsythe, ‘The United Nations and Human Rights, 1945-​1985’ (1985) 100 Political Science Quarterly 249; T J Farer, ‘The United Nations and Human Rights: More than a Whimper Less than a Roar’ (1987) 9 Human Rights Quarterly 550. 48 J Donnelly, ‘Human Rights at the United Nations 1955–​85: The Question of Bias’ (1988) 32 International Studies Quarterly 275. 49 C B Primiano and J Xiang, ‘Voting in the UN: A Second Image of China’s Human Rights’ (2016) 21 Journal of Chinese Political Science 301; S Hug and R Lukács, ‘Preferences or Blocs? Voting in the United Nations Human Rights Council’ (2014) 9 The Review of International Organizations 83; R Terman and E Voeten, ‘The Relational Politics of Shame: Evidence from the Universal Periodic Review’ (2018) 13 The Review of International Organizations 1; A L Hillman and N Potrafke, ‘The UN Goldstone Report and Retraction:  An Empirical Investigation’ (2015) 163 Public Choice 247; M H Hong, ‘Legal Commitments to United Nations Human Rights Treaties and Higher Monitoring Standards in the Universal Periodic Review’ (2018) 17 Journal of Human Rights 660; R N Becker et al, ‘The Preoccupation of the United Nations with Israel: Evidence and Theory’ (2015) 10 The Review of International Organizations 413; B Boockmann and A Dreher, ‘Do Human Rights Offenders Oppose Human Rights Resolutions in the United Nations?’ (2011) 146 Public Choice 443. 50 Ibid.

Introduction  23 Assembly on a biennial basis.51 But while quantitative analyses are useful, it is also important that qualitative assessments should be undertaken. The UN has shown in the past that it is capable of taking a hard look at its own performance, at least in response to crisis situations. This was evident for example when the Secretary-​General commissioned two painful lessons-​learned exercises on the Rwanda and Bosnia peacekeeping debacles and the deaths that ensued,52 and an internal study on the failings of the Organization in the lead up to the end of the Sri Lankan civil war in 2008.53 At the same time, the UN is often inclined to take the credit for developments which might have all too little to do with it directly. It must also balance the concerns of its different constituencies, while at the same time playing down any suggestion that trade-​offs are being made. This means that its self-​assessments are often a poor guide as to how much has actually been achieved. Second, a key question is whether to focus on developments within the UN itself or on the actual impact of the UN’s activities on human rights in the world. These two approaches might be related, and in a large organization institutional change is often mistaken for real change, as if this or that reform will magically bring about substantive improvement—​but they are not synonymous. Human rights could become institutionally more salient in the UN without that necessarily translating into positive human rights impacts on the ground. Too often the accumulation of treaties and norm-​setting exercises has been identified as positive when their impact may be negligible. A huge reform such as replacing the Commission and Sub-​Commission with the Human Rights Council and its Advisory Committee might amount to little if membership issues cannot be addressed fruitfully and if more productive ways of addressing challenges, including but not limited to violations, cannot be devised. Similarly, the increasing interest of the Security Council in matters of human rights may be a mixed blessing if it crowds out other efforts while doing little. And the addition of new treaty bodies may complicate the task of existing ones and make the overall burden on states less sustainable. A thorough evaluation of the relationship between institutional achievements and the state of human rights in the world goes far beyond the remit of this book, but we should be wary of equating institutional evolutions with real world change. Even if all of these things could be done better, it would be difficult to link them empirically to actual human rights improvements on the ground. We should be attentive to the fact that more human rights machinery does not necessarily translate into more human rights. Having said that, the UN has to start somewhere, and improving its processes may be the only and most concrete thing it can do with a view to producing more human rights 51 Status of the Human Rights Treaty Body System: Report of the Secretary-​General, UN Doc A/​73/​309 (2018) and annexes at http://​www.ohchr.org/​EN/​HRBodies/​HRTD/​Pages/​2ndBiennialReportbySG.aspx. 52 Report of the Secretary-​General Pursuant to General Assembly Resolution 53/​555: The Fall of Srebrenica, UN Doc A/​54/​599 (1999); and Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, UN Doc S/​1999/​1257 (1999). 53 Report of the Secretary-​General’s Internal Review Panel on United Nations Action in Sri Lanka, November 2012, available at: http://​www.un.org/​News/​dh/​infocus/​Sri_​Lanka/​The_​Internal_​Review_​Panel_​report_​on_​Sri_​ Lanka.pdf.

24  Philip Alston and Frédéric Mégret compliance. As we outline in the following paragraph, it is not as if ‘everything’ is under the UN’s control. Third, the challenge of establishing causality is difficult in evaluation in general, and even more so in this domain. It is hard to measure significant long-​term impacts on issues such as the treatment of detainees, police harassment, freedom of the press, the fairness of the political system, and freedom of association. Even an immediate change in government or a direct reversal of offending policies may have had little to do with UN measures. Even debates over the impact of the UN’s human rights treaties often seem to be stuck in endless methodological quarrels that make them inconclusive, at least for policy purposes.54 But while the UN cannot take all of the credit for the radical improvements in human rights that have occurred in the last fifty years, its share in some of them ought also to be acknowledged.55 Fourth, in the case of the UN, things are complicated by the fact that its human rights responsibilities are only ever at best shared responsibilities. It is hardly a world government and although many hopes may have been invested in its human rights mandate, its implementation remains for the most part the responsibility of states. This means that almost all failures to implement human rights will involve a significant element of failure on the part of sovereigns. Of course, the UN might also be responsible, most notably when its own policies fail to provide necessary remedies in response, for example, to sexual misconduct by its peacekeepers or the negligent transmission of an infectious disease such as cholera. But one should give unto Caesar what belongs to Caesar and not hold the UN to an impossibly exacting standard that it does not have the means to fulfil. The UN as an organization, thanks for example to the Secretary-​General or the High Commissioner for Human Rights, might seek out certain mandates but there are limits to how much it can then be the master of its own destiny. This also applies to human rights ‘successes’, many of which may simply be attributable to national or regional dynamics that operate quite distinctly from the UN, and suggest it often has a residual place when all else fails. Fifth, an interesting question is whether the UN should be evaluated for what it has done, or for what it has failed to do. Sticking to what the UN has actually done may be too generous to the organization, because it uses the UN’s self-​selected frame of reference rather than taking a more objective view of what it might have sought to achieve if it had used its institutional imagination. Missed opportunities, formalist responses, 54 A S Chilton and E A Posner, ‘Treaties and Human Rights: The Role of Long-​Term Trends’ (2018) 81 Law and Contemporary Problems 1; C D Creamer and B A Simmons, ‘The Dynamic Impact of Periodic Review on Women’s Rights’ (2018) 81 Law and Contemporary Problems 31; K Cope and C D Creamer, ‘Disaggregating the Human Rights Treaty Regime’ (2017) 56 Virginia Journal of International Law 459; S Hopgood, J L Snyder, and L Vinjamuri, ‘Introduction’ in S Hopgood, J L Snyder, and L Vinjamuri (eds), Human Rights Futures (Cambridge University Press, 2017) 1; S Moyn, ‘Beyond the Human Rights Measurement Controversy’ (2018) 81 Law and Contemporary Problems 121; A Chilton, ‘Experimentally Testing the Effects of Human Rights Treaties’ (2017) 18 Chicago Journal of International Law 164; C J Fariss, ‘Respect for Human Rights Has Improved Over Time: Modeling the Changing Standard of Accountability’ (2014) 108 American Political Science Review 297; Y Lupu, ‘Explaining Human Rights Abuses:  Comparing Contemporary Factors and Historical Factors’ (2016) 56 Virginia Journal of International Law 481. 55 F Mégret, ‘The Liberation of Nelson Mandela: Anatomy of a “Happy Event” in International Law’ in F Johns, R Joyce, and S Pahuja (eds), Events: The Force of International Law (Routledge, 2010).

Introduction  25 and blindness to issues should all be taken into account if a comprehensive balance sheet is to be drawn up. By the same token, it is true that there is always more that the UN could be doing, and it is clearly not responsible for everything that goes wrong in the world from a human rights point of view, especially when matters go beyond its mandate and powers.

I.9  The need to problematize criteria The UN’s human rights record has been the subject of much casual comment but remarkably little systematic evaluation. Since evaluation is, as the word itself connotes, a value-​based undertaking, the starting point for any such exercise must be the identification of the criteria against which an informed and balanced assessment can be attempted. While this is hardly a great insight, it stands in stark contrast to the approach adopted in practice by most of those who have in the past purported to offer an assessment of the UN’s human rights programme. The same criticism also applies in the international organization field more generally. Thus, for example, the UN system as a whole has been the focus of a series of evaluation exercises in the last decades, both internal and external in nature, but few if any of them have gone beyond vague references to efficiency and effectiveness in describing their criteria for assessment.56 One explanation for this failure to specify criteria is the assumption that the Organization’s central human rights function is to respond effectively to violations wherever they occur. Leaving aside the question of whether a pre-​occupation with gross violations obscures the more preventive and promotional work that should be done, the definition of an ‘effective’ response is usually not spelled out. Some might be satisfied with a focused discussion in an international forum of any relevant situation, others might insist upon a formal condemnation or at least the establishment of a fact-​ finding and reporting mechanism wherever appropriate, while still others might be unsatisfied with anything less than the imposition of sanctions or even the mounting of a military intervention designed to restore respect for human rights. Moreover, some will argue that what matters is less the nature of the measure adopted than whether it actually proved to be effective, which is an even more complex question to address, and an especially demanding criterion of effectiveness in contexts that are often close to being intractable. The differing normative assumptions from which such diagnoses proceed make it difficult to unproblematically evaluate the UN’s record. For example, how one sees the UN’s human rights performance depends on what kind of balance one thinks 56 For a controversial exception, see G Achamkulangare, Review of Management and Administration of the Office of the United Nations High Commissioner for Human Rights, Joint Inspection Unit, Doc JIU/​REP/​2014/​ 7 (2014). For the OHCHR response, see Note by the Secretary-​General, A/​70/​68/​Add.1 (2015); and for an explanation of the complex politics underlying the competing approaches see S Gujadhur and M Limon, ‘The JIU Report: What’s All the Fuss About?’, Universal Rights Group Blog, 23 March 2015.

26  Philip Alston and Frédéric Mégret the UN should be striking between sovereignty and human rights in the first place. For some, human rights have to be implemented in ways that are respectful of sovereignty and within the parameters of public international law, whilst others insist that human rights ought typically to trump states’ prerogatives or else the commitment will amount to little. But even this common binary is problematic, because it neglects the extent to which sovereignty and human rights are hard to separate in this way. Respect for sovereignty, for example, may be interpreted from a human rights perspective as safeguarding international pluralism, peoples’ self-​determination or democratic deliberation and therefore as hardly anathema to human rights. Deep differences about which human rights ought to be promoted as a matter of priority, in a context where intense differences of appreciation exist around the relative importance of rights, also underlie many of the controversies.57 Despite governments’ formal commitment to the indivisibility of rights, different groups of countries consistently push for the overarching importance of certain rights at the expense of others. The often intensely political character of rights controversies suggests that it may be difficult to adopt an accepted standpoint from which to unproblematically evaluate implementation and compliance. But it is better to accept such complexity rather than to pretend that it is not there. For example, the emphasis on freedom of expression by some may clash with the perceived undermining of freedom of religion by others; the claimed need for intervention to defend populations will be in tension with respect for the rights of those who stand to be negatively affected by such an intervention; civil and political rights may be presented as in tension with economic and social rights or the right to development, and more generally individual with collective rights. These tensions are no doubt potentially productive, but they are tensions nonetheless and suggest that there will often be at least two sides to any human rights ‘story’. This book reflects the understanding that what counts as a human rights achievement on the part of the UN will inevitably be susceptible to varying interpretations. The various contributors to the volume thus stand for a range of views on what counts as human rights ‘progress’. Evaluating the effectiveness of efforts to promote human rights also involves taking into account major disagreements about strategies for implementation. Should human rights be promoted through dialogue or should they be upheld by force? Should the cardinal principle be to get states ‘on board’ via their consent or to dynamically coerce laggards into joining the mainstream? Should the foremost goal be equal and consistent treatment of all states, or taking advantage of majorities and coalitions to enforce human rights where and when one can? How far should the opening to and association with civil society go? Should the UN focus on general principles and thematic studies, or actually look at particular states and their records? These differing options will have a major and direct influence on the outcome of any evaluation exercise. None

57 F Mégret, ‘Having It Both Ways: International Human Rights Law Cannot Both Be in Decline and Be (That) Problematic for International Law’ (2018) 96 Texas Law Review Online 114.

Introduction  27 of them is necessarily more ‘human rights oriented’ than any other; rather, all seem to proceed from quite different conceptions of the ends and means of international action in favour of human rights. It is worth underlining that the more ‘forceful’ interventions in favour of human rights may not necessarily be the most efficient in given contexts and might even in some cases backfire. To make matters more complicated, of course, any number of these positions may be held by states or non-​state groups or the UN itself in ways that are opportunistic or inconsistent over time. This highlights a fundamental tension between more consensual and more confrontational approaches to human rights implementation, both of which have their merits. Should the goal of the international human rights regime be to develop standards that are firm and consistent, leaving it to others to ensure they are enforced? Or should the UN itself be involved in actual protection of human rights, at the risk of inconsistency and perhaps watering down of the standards? This is the central paradox of human rights institutionalization, in that ‘power’ is needed to be able to enforce the law but human rights risk being absorbed and instrumentalized by that power. In effect, the UN has unmistakably moved in the direction of protecting human rights even if that means interfering with the sovereignty of at least some states. In the process, however, it has often settled precariously in the middle, with procedures such as fact-​finding and reporting which are better than nothing but might also be chronically disappointing from the point of view of rights protection. An even deeper problem may be that not even ‘effectiveness’ is necessarily an unproblematic criterion against which to measure the UN’s human rights record. Effectiveness in promoting or enforcing ill-​conceived or problematic human rights standards is unlikely to be a net gain for the human rights project. There is a deep normative dimension to promoting human rights which suggests that getting their interpretation and definition right is at least as important as making sure that these definitions then make their way into the world. Standard setting, therefore, is not just the first step in a movement wherein implementation is the most important, but a crucial part of what makes international human rights what they are. Moreover, it is a step that is in a sense constantly taken since the content and interpretation of rights are constantly being developed through implementation. Moreover, the emphasis on effectiveness and a sort of ‘command and control’ approach to implementation may gloss over the complexity of what is at stake. As the more sophisticated constructivist theories of international relations and law suggest, what matters is not simply how binding norms are considered, but the extent to which they quite literally ‘constitute’ actors and behaviour through socialization and acculturation.58 In that perspective, for example, the fact that states increasingly shape their criticism of each other or justification of their actions in human rights terms may be as significant as whether human rights are ‘enforced’ for the benefit of individuals.

58 T Risse, S C Ropp, and K Sikkink (eds), The Persistent Power of Human Rights:  From Commitment to Compliance (Cambridge University Press, 2013).

28  Philip Alston and Frédéric Mégret Indeed, the UN has been credited for the largely symbolic—​but still, one would think, momentous—​achievement of bringing about ‘a revolutionary change concerning the place of human rights in world affairs’.59 At the same time, too optimistic a take on human rights’ structuring role in international affairs may sound abstract and apologetic, especially if human rights are seen to reinforce the existing status quo rather than displace it.60 It is also important to relativize the efficiency criterion by noting that what matters is not only what the UN achieves but how it achieves it. To take an obvious example, even though an authorization to use force by the Security Council may be highly sought after as part of a last-​ditch attempt to prevent atrocities, how that use of force is justified and then supervised and conducted will matter considerably to the perceived legitimacy and credibility of the organization and the strength of any resulting precedent. Although the Human Rights Council can validate strong allegations against a government, it matters that it does so in ways that seem relatively impartial and avoids the perception of one group of states ganging up on another. What some might consider to be a progressive and otherwise helpful interpretation of the content of a right by a treaty body might also do a disservice to the right in question if the reasoning is weak or fails to take account of issues raised by persuasive dissenting opinions.61 Values such as universality, impartiality, consensus or transparency all have their importance for human rights in a context where the international push and shove of the UN constantly puts them at risk. Crucially, how one evaluates the UN’s record may depend on what one’s implicit comparator is. For example, the UN’s human rights project is certainly relatively ‘thinner’ in some respects than regional ones: one could point out, for example, that there is no ‘international human rights court’ comparable to the regional ones (although there is certainly talk of one, which suggests that some see the regional models as in some ways setting the standard for the universal). But this is also because the scope of the UN’s human rights endeavours are considerably broader than that of other organizations: they involve almost 200 states with highly diverse interests and positions, cover the whole range of conceivable rights, and have to work through a vast institutional structure that is simultaneously pursuing a variety of competing goals. It would thus be unfair and not particularly helpful to compare the UN’s human rights project, for example, to that of the Council of Europe. Doing so, however, can help problematize both normative issues (how far for example should international human rights policy defer to the pluralism of states?) and enforcement ones (how well is the UN doing compared to, say, the inter-​American human rights system?).

59 D P Forsythe, ‘The UN and Human Rights at Fifty: An Incremental but Incomplete Revolution’ (1995) 1 Global Governance 297, 297. 60 F Mégret, ‘The Apology of Utopia; Some Thoughts on Koskenniemian Themes, with Particular Emphasis on Massively Institutionalized International Human Rights Law’ (2013) 27 Temple International and Comparative Law Journal 455. 61 T Meron, ‘Reform of Lawmaking in the United Nations: The Human Rights Instance’ (1985) 79 American Journal of International Law 664.

Introduction  29

I.10 Proposed framework Despite the difficulties, the identification of at least some methodology is an indispensable prerequisite to any sustained attempt at evaluation that aspires to be taken seriously. There is an urgent need for more creative and empirical research to be undertaken to explore the advantages and disadvantages of different approaches. It might be asked how academic observers have sought to overcome these problems. The principal answer has to be that they have not. Indeed there have simply not been enough studies, let alone enough studies adopting the same criteria, to provide a basis for any meta-​analysis of the literature. Moreover, and for the most part, as noted earlier, too many evaluations have been produced without any detailed attempt to specify the criteria, benchmarks or assumptions on which they are based. For example, one book identifies ‘enforcement’ as the goal of the international human rights regime but then defines enforcement as ‘comprising all measures intended and proper to induce respect for human rights.’62 Perhaps not surprisingly, the resulting approach to evaluation confuses promotion and enforcement in ways that are not especially informative. Clarifying and specifying what the UN actually does is the best way to make sure that one does not credit it for things it could not have done, but also making sure that credit is given where due. In this section, we develop a broad framework for critically appraising the record of the UN as a whole when it comes to human rights, and for each specific body or mechanism. It is crucial to properly determine the scope and nature of the UN’s human rights mission, in order to ensure that one does not assess it by reference to either an impossibly high standard or excessively undemanding criteria. This should then open up the possibility of a more systematic evaluation of how well the UN has fulfilled what might legitimately be expected of it. Much of the foregoing analysis has aimed at identifying the shortcomings of some of the evaluative frameworks that have been used in different contexts to appraise the UN’s human rights programme. The message is not that they are all fatally flawed and nor is it that there is any particularly scientific means of arriving at an appropriate set of criteria. Rather, it is that serious consideration needs to be given to such criteria as a prelude to any evaluation and that the criteria being applied should be spelled out.

I.11  Asking the right questions Short of a unifying theory to evaluate the UN’s human rights record, there may be a number of questions to be asked in order to take the proper measure of the scope of the regime. Much of the academic literature can be argued to have converged around five key questions: Who? When? What? For Whom? and Why? Addressing these questions 62 R Bernhardt, ‘General Report’ in R Bernhardt and J Jolowicz (eds), International Enforcement of Human Rights (1985), at 5.

30  Philip Alston and Frédéric Mégret (in no necessary order) and understanding how they affect the evaluation of the UN’s record can at least help understand both the object of study and the distortions imposed by various approaches. ‘Who’ are the key actors in relation to human rights in the UN context and who generate understandings of their contributions? We have already introduced the distinction between treaty and Charter bodies, but in itself that does not tell us much about their relative importance. Where is the leadership? Does it come from the Human Rights Council? The Security Council? Or perhaps the combined normative power of all treaty bodies put together? Does it come from Geneva, New York, or field missions? Human rights discourse and norms tend to emanate from all parts of the United Nations these days, so much so that it is difficult to know for sure who speaks for the organization on the topic. In a given context, should we be paying more attention to the Secretary-​General, the High Commissioner, a treaty body, or a Special Rapporteur, especially if all have made relevant pronouncements? Understanding the institutionally localized character of many human rights assessments can help us evaluate them. Even the most obscure human rights body may occasionally have significant influence (think for example of the role of the ECOSOC in granting status to NGOs), despite the fact that a mixture of functional specialization (human rights specific bodies as opposed to bodies with general mandates) and raw power (the Security Council as opposed to treaty bodies) deeply condition what can be expected from any given body. Moreover, the more or less technocratic, expert, or political character of these bodies will influence their own assessment of the UN’s human rights output. ‘When?’ raises the issue of the appropriate time frame. The UN’s human rights project is generally considered to have begun with the adoption of the UN Charter in 1945 or the Universal Declaration in 1948. By almost any measure, considerable institutional, political and legal progress has been achieved since then. But very different time frames could also be chosen, by opting to focus on a particular set issue (such as children’s rights, or the rights of persons with disabilities), or a specific body (such as the Human Rights Committee, or the Council’s Universal Periodic Review), or a particular country situation (such as apartheid in South Africa, or the occupation of the Palestinian territories). The time frame chosen is also going to be important depending on how the inquiry is framed. For example, if the criterion chosen is the responsiveness to gross violations, a focus on the 1960s and 1970s when the UN’s response to violations was essentially limited to criticizing the unholy trinity of South Africa, Israel in respect of the Occupied Territories, and Chile, the overall assessment will not be strong. But if the focus is on institution building and one starts with the end of the Cold War which ‘liberated’ the UN to expand its approach, then the creation of the post of High Commissioner for Human Rights in 1993 is a high point, despite the fact that the office took a number of years to exert its influence. Similarly, a focus on major turning points such as the terrorist attacks on the USA on 11 September 2001, or the ‘Arab spring’, will yield very different assessments. ‘What?’ refers to the types of activities in which the UN is involved. What lies on the spectrum between the traditional extremes of ‘promotion’ and ‘protection’? What

Introduction  31 weight should be given to certain types of activities over others? How do we rank the importance of the latest General Comment by a treaty body, a General Assembly resolution calling for non-​discrimination against a reviled group, a Security Council resolution mandating a new international administration to uphold human rights, or a promotional initiative taken by the High Commissioner? The reality is that the UN acts in many and varied ways and in some respects the power of its machinery lies in the diversity of its mechanisms. When one avenue is blocked, another might be able to function effectively. Being attentive to the UN’s diversity of modes of intervention and the extent to which each can be tailored to the exigencies of particular situations is crucial. The question ‘for whom?’ poses an immediate problem in terms of the human rights regime. The outcome of the evaluation will be radically different depending on whether the standpoint adopted is primarily that of the victims of violations, human rights activists, governments, UN officials, or the media. Who cares that the UN is not doing enough to uphold and defend human rights? Criticism has come from states, human rights NGOs, the press, social media, members of the general public, scholars, and also from the UN itself.63 But their perspectives might be radically different. States might worry about a loss of credibility, but also about the risk of being criticized, whereas others will be concerned because the interests of the victims are being ignored or misrepresented. Finally, the question ‘why?’ will be answered rather differently by a victim, an academic, an activist, a government minister, or an international official. The answers might range from a general quest to gain a better understanding of modes of international cooperation, or a desire to increase efficiency defined in managerial terms, through a focus on remedies and reparations, to a desire to ensure an immediate and productive response to all future reports of alleged violations. This book is interested in these questions from a conceptual rather than an instrumental or policy perspective and thus does not purport to present explicit recommendations as to how the system could work more effectively. The question of how the UN system and its component parts work is already a very rich one and is an essential preliminary one for more policy-​oriented inquiries.

I.12  Identifying the benchmark(s) The preceding analysis has helped to narrow down the inquiry, but it still does not tell us what exactly should be evaluated. One tempting approach is simply to evaluate the UN by its own standards and proclaimed objectives. This at least avoids the accusation that one is projecting ambitions on the UN that it does not share. From a legal perspective, 63 For example, the outgoing High Commissioner for Human Rights warned the Human Rights Council in June 2018 that in responding to persistent attacks on multilateralism and human rights, the ‘UN’s collective voice must . . . be principled and strong; not weak and whining, obsessed with endless wrangling over process, the small things, as it is the case today’. Opening statement and global update of human rights concerns by UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein, 38th session of the Human Rights Council, 18 June 2018.

32  Philip Alston and Frédéric Mégret the standards are what they are and they do set a certain horizon of achievement. One might therefore hope to escape endless debates about the UN’s record by at least holding it to its word. The problem is that the ‘system’ per se does not exist in such terms and its component parts are not always clear about what they aspire to, or only spell out their goals in the most general of terms. In the case of the principal Charter-​based organs, for example, the terms of the Charter provisions give little practical guidance for the purposes of evaluation and the constituent instruments may not be a great deal more helpful. The Human Rights Council, for example, is ‘responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner.’64 Similarly, the High Commissioner for Human Rights is tasked with the rather ambitious mission ‘to promote and protect the effective enjoyment by all of all civil, cultural, economic, political and social rights’.65 At that level of generality it may seem that those bodies have responsibilities that are so vague that it is difficult to set the terms of any meaningful evaluation, let alone one that would yield interesting results. Nevertheless, being attentive to the wording of UN mandates is also extremely important and something can be gained by taking the terms of actual mandates seriously. Whilst ‘promotion’ may involve a host of activities that are not directly related to the actual state of human rights in the world, a mandate to ‘protect’ human rights suggests something that is much more focused and connected to ongoing human rights threats. But such a mandate can only be pursued within the overall framework of UN activities and must take account of the limitations and constraints that apply to actions by the relevant UN bodies. Nevertheless, various bodies and actors who have chosen to take their mandates to heart have been able to make significant impacts, regardless of the expectations and constraints applied to them. The position of the observer is also crucial to how human rights realization is assessed. Is the observer committed to human rights and/​or to the goals of the United Nations? Is their background in practice or theory, law or political science, domestic or international human rights? What is their gender, race or ethnicity, nationality? In editing this volume we endeavoured to assemble a diverse cast of contributors, bearing in mind that interest in and expertise on human rights at the UN was a prerequisite which limited the options to a degree. But we recognize that situationality bears on all analysis, especially on a matter as complex and multi-​faceted as the global promotion of respect for human rights. In that respect, eschewing unrealistically high expectations may help avoid the mistake of thinking that the UN is doing worse than it is, just as not setting one’s ambitions too low may enable a critical distance. Much will depend on whether the focus is on processes or outcomes, on the underlying theory of what the UN should be doing, and on what might count as success in that respect. If one thinks that the UN is there to

64 65

A/​RES/​60/​251, para  2. A/​RES/​48/​141,  p  4.

Introduction  33 ‘enforce’ human rights against states, then one may end up being chronically disappointed. The point is not that one should lower the standard artificially so that the UN may pass muster, but that there are significant constraints on what it could reasonably aspire to achieve. Thus the basic methodology for evaluating the UN’s performance should combine both a more idealistic (comparing the UN’s machinery to what could have been) and a practical (looking at how the actual machinery is evolving) component. As a starting point, it might be instructive to imagine how to build up the UN’s human rights machinery from scratch if one were hypothetically not hamstrung by existing institutional constraints. A non-​bureaucratic and truly probing evaluation would take as its starting point some vision of the arrangements required in order to promote human rights consciousness and to prevent human rights violations to the greatest extent possible. The existing UN and other arrangements would then be compared with that benchmark rather than assessed on their own bureaucratic, institutional, and realpolitik terms. While such an exercise will undoubtedly be of limited utility to address the quirky institutional puzzles of the moment, it may be useful as a sort of counter-​factual. It will probably come as no surprise that some elements that one might deem as necessary have in fact made their way into the actual human rights machinery; but it will also be the case that some crucial elements are absent in the system. It can be argued that a strong regime of human rights promotion needs to fulfil a number of functions: (i) it should be based on a certain legitimacy and authority to promote human rights; (ii) it should have strong deliberative capacity allowing its key constituencies to have their voice heard; (iii) it should be able to generate expertise on and authoritative adjudication of human rights standards; (iv) it should be active in the promotion of human rights; (v) it should have some capacity for implementation and enforcement of human rights standards, and (vi) it should itself be capable of abiding by human rights and certainly not making situations worse through its own actions. Looking at it this way, one might point out that the distinction between Charter and treaty bodies is not just a fortuitous and idiosyncratic by-​product of the UN structure but also responds more deeply to the need, particularly in such a heterogeneous international setting, to have both intergovernmental and more impartial expert inputs into the discussion. Given the range of challenges, the UN needs both political bodies and special investigative mechanisms to deal with large-​scale human-​rights violations, and more deliberative bodies to undertake reviews of the extent to which laws and policies in countries across the board comply with international obligations. Even the duplicative overlap between the Universal Periodic Review and reporting to the treaty bodies is more apparent than real: one could make the argument that states need broad brush criticism from their peers, as well as treaty-​specific feedback from impartial experts.66 At any rate, the coexistence creates potentially productive dynamics.67 At the same 66 F D Gaer, ‘A Voice Not an Echo: Universal Periodic Review and the UN Treaty Body System’ (2007) 7 Human Rights Law Review 109. 67 H Charlesworth and E Larking, Human Rights and the Universal Periodic Review:  Rituals and Ritualism (Cambridge University Press, 2015); and K M Milewicz and R E Goodin, ‘Deliberative Capacity Building through

34  Philip Alston and Frédéric Mégret time, if the UN is measured against what could have been, it will inevitably be found wanting. For example, the sometimes deep politicization of Charter bodies, or the chronic delays of the treaty bodies, are hard to square with any ideal vision of a system of human rights promotion and protection. To complement this approach, it will also be necessary to realistically start with the system as it is and to look at what could be improved. Would-​be reformers often have to face up to the reality that there is no choice but to deal with the complexities and idiosyncrasies of what actually exists. Such valuing of the status quo becomes even more attractive in an era in which the United States is no longer supportive of multilateral human rights institutions, Western Europe is pre-​occupied by its own problems, China and Russia are fully engaged but pursuing quite different agendas, and countries of the Global South are at best ambivalent, if not on the offensive against the UN’s approach, as in the case of countries like Brazil and the Philippines. In such a context, the idea that constructive reforms be pursued might look like an invitation to overturn the acquis and set the agenda back very significantly. Such a realist approach to the UN’s human rights project is not inconsistent with the more idealistic vision outlined earlier.

I.13  Conclusion There is a tendency for those assessing the UN’s human rights record to be either highly congratulatory or entirely dismissive. Many of those who work within the system tend to adopt the former approach and seem never to tire of citing its many institutional and procedural achievements as evidence that there has been great progress in terms of respect for human rights. The creation of a new committee, the adoption of another resolution, the holding of another UN panel or conference, or the publication of another report, are all treated as contributions that inevitably move the cause forward. The opposite approach is sometimes adopted by critics. Philip Allott, for example, has claimed that after 1945 the ‘idea of human rights quickly became perverted by the self-​ misconceiving of international society. Human rights were quickly appropriated by governments, embodied in treaties, made part of the stuff of primitive international relations, swept up into the maw of an international bureaucracy.’ In sum, he concluded that ‘the deterrent effect of bureaucratized human rights is negligible’.68 But neither of these extremes is capable of capturing the complexity, the contradictions, and the nuance of what has and has not been achieved by the multiplicity of UN actors whose work is surveyed in this volume. Even leaving aside the fundamental problem that any talk of ‘the UN’ in such a discussion inevitably blurs crucial distinctions among officials, independent experts, governments, and others, the

International Organizations: The Case of the Universal Periodic Review of Human Rights’ (2018) 48 British Journal of Political Science 513.

68 P Allott, Eunomia: New Order for a New World (Oxford University Press, 2001) 287–​8.

Introduction  35 outcome of any attempt at assessment will depend largely on the starting point. If one focuses only on institutional developments, the image may be of an organization constantly reinventing itself. But focusing only on such formal outcomes risks obscuring the real debate over actual impact in terms of enhanced respect for rights. At the same time, as noted above, new initiatives should not automatically be denigrated, especially given the inertia and resistance that must be overcome before they can be adopted. It will at least sometimes be reasonably assumed that purely administrative changes will eventually percolate (one hesitates to say ‘trickle down’) to their intended beneficiaries. In other words, there is often a glass half-​full/​half-​empty quality to these debates, some focusing on what has been achieved and how far the UN has already come given previous neglect of human rights, and others forever deploring missed opportunities. Which is closest to the truth? What are we to make of the UN’s human rights record? It seems that only a holistic and system wide evaluation of the UN’s human rights machinery can do justice to it. It is also important to ensure that the focus on the UN’s performance in holding states to account does not distract attention from the urgent issue of confronting human rights violations for which the UN itself is responsible.69 Overall, what matters most is how all of the various pillars contribute to the whole: how do the political, expert and technocratic dimensions of human rights at the UN operate together (or not)? This book thus treats the Charter-​based and treaty-​ based organs as well as the UN’s own institutional efforts at mainstreaming human rights as parts of a single integrated programme. This may be granting the UN more unity of purpose than it deserves, but in the end it is a single international organization with many facets. The chapters that follow appraise the achievements and shortcomings of each of the various UN organs which play a major role in human rights terms. They take stock critically of developments in a context where progress cannot be taken for granted but should be acknowledged if and when it occurs. Because UN organs are so different, no single template will work to evaluate their records. The achievements of the Security Council and the Committee on Economic, Social and Cultural Rights, for example, cannot be evaluated using the same approach. Moreover, the tools and criteria used in each case are likely to reflect certain biases, but the real challenge is to acknowledge these rather than pretending that they do not exist. It is to be hoped that each of the following chapters provides the essential raw material required to evaluate the relevant body and to broadly assess its contribution. If the basic question is whether the UN should be involved in human rights promotion, then the answer is a definite ‘yes.’ The only finding that would specifically argue against more UN human rights involvement is if such efforts actually positively undermined human rights. The sheer diversity of efforts undertaken by the UN in favour of human rights, their obvious impact on victims in at least some cases, and their contribution to the development of international human rights law, are all significant. 69 F Mégret and F Hoffmann, ‘The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities’ (2003) 25 Human Rights Quarterly 314.

36  Philip Alston and Frédéric Mégret However, there is limited reason to celebrate. The problem lies less in what the UN has done than what it could have done better or more of. And the sometimes deep disagreements that emerge at the UN over human rights—​over the frontiers of racism and freedom of expression, the possibility of intervening militarily to protect rights, the existence of distinct civilizational approaches to human rights, or the threats posed by extreme poverty and extreme inequality—​are in constant danger of belying the actual universality of rights. The unavoidable conclusion is that it remains essential to see the UN as an important arena in the struggle to promote and protect human rights. Even if it might not have been a good idea in the first place to mix intergovernmentalism and human rights, the fact is that the UN is now highly invested in human rights. ‘Speaking human rights’ within the United Nations, but also to it, is a way of shaping the organization. And there are significant potential rewards to harnessing the UN’s power to advance human rights goals. The UN commands considerable leverage over states, a leverage that is unlikely to come from any other organization, especially for those states—​which are still quite numerous—​that do not fall under the jurisdiction of some regional human rights mechanism. To not invest in shaping the public discourse of the organization may be to let others do so. More often than not, the UN provides the setting or context in which broad human rights policy is shaped, and one would ignore it at one’s peril. Although the UN has many faults, they are there to be remedied. Although this book is primarily about how different UN bodies have fared in holding states to account for their human rights performance, it is also important to consider how the UN itself has changed as a result of its engagement with human rights. This engagement should give rise to sustained reflections about what sort of international organization it wants to be. Should it be primarily an organization involved in facilitating intergovernmental coexistence and cooperation, or should it be willing to pursue common, substantive ideals, about what constitute fair societies? If human rights do increasingly provide a sort of blueprint for fair societies, how might one go about deploying them universally in ways that nonetheless still respect the important, albeit increasingly vague, principle of sovereignty? These are, needless to say, debates on which the member states have quite radically different views, and so the human rights project at the UN has always existed in tension with inter-​state politics. But the UN, as an international organization, is more than simply the sum of the states that are party to it: it also clearly has an identity and perhaps a vision of its own. Thus despite the inevitably deeply contradictory aspirations of member states, the question remains as to what the UN itself can do to advance respect for human rights.

PART I

T HE H UMA N R IGHT S M A NDAT E OF T HE PR INC IPA L  ORG A NS

1 The Security Council Frédéric Mégret

The Security Council may be the least obvious organ within the United Nations to have a human rights role, yet it may also be one of those that can make the most difference—​ both positive and negative—​when it comes to the upholding of human rights standards internationally.1 For a human rights regime that is notoriously devoid of much enforcement power, the Security Council comes with a very sought-​after resource, in the form of a monopoly of the legitimate authority to use coercive means against states. This initial paradox will provide much of the background for this chapter’s analysis of the Council’s role in furthering human rights. There is a ‘Gulliver and the Lilliputians’2 quality to the Security Council’s encounter with human rights. The Council’s ‘height’ and the broadness of its panoramic vision might easily render it oblivious to the rights of the masses, not to mention the fate of particular individuals among them. Yet because of the considerable power that the Council wields, its smallest decision can, through the demultiplier effect of its interventions, have considerable repercussions on the Lilliputians’ rights. Moreover, the Lilliputians have increasingly become interested in harnessing the power of the Council to promote rights, or at least to minimize the extent to which the Council can affect them negatively. But the Security Council is, like all giants, rather hard to move in the first place, and possibly just a little dangerous when it does. Will the Lilliputians manage to rein it in? Or should Gulliver learn to restrain himself? Can the bounds of law ever restrain the Council, or will changes in Security Council policy always be dependent on the more or less enlightened nature of its politics? Might human rights be better off altogether if the Security Council ignored them? The Security Council’s practices provide rich terrain for analysing prospects for human rights at the United Nations, as well as the evolving role of human rights not only as something that is promoted by the UN but which shapes, and even constitutes, its ­authority going forward. Moreover, this is a terrain that has fundamentally changed in the last three decades, since the end of the Cold War. For much of the Council’s

1 Strikingly, under the ‘human rights bodies’ section of the High Commissioner for Human Rights’ website, almost every single body examined in this book is listed, but not the Security Council (available at: https://​www. ohchr.org/​en/​hrbodies/​Pages/​HumanRightsBodies.aspx). 2 J Swift, Gulliver’s Travels Into Several Remote Regions of the World (G Routledge and Sons, 1882).

40  Frédéric Mégret history, human rights were simply not seen as part of the its remit, and many states would have (as some still do, no doubt) seen Council involvement in matters of human rights as both an encroachment on sovereignty and an overstepping of Charter boundaries and separation of power. Since that first edition was published, it is fair to say that, with many limitations that will be explored in this chapter, human rights have significantly entered the reality of Security Council power and discourse. In fact, the human rights impact of the Council has become the focus of much more significant scholarly attention with entire books and collections devoted to the issue,3 as well as a significant number of articles.4 Daphna Shraga has gone as far as to claim that the Council has become the ‘centre piece of the human rights protection system’.5 This is a startling claim and this chapter will be more nuanced in its assessment. As will be argued, not only is it not entirely clear how far the phenomenon goes, but this mutation has hardly been an unqualified success. The emergence of a strong role for the Council, in particular, continues to raise acute questions about international law, the UN Charter and human rights: legally, it is not even clear to what extent the UN is strictly bound by human rights standards; the UN Charter does not seem to envisage a particularly central role for the Council in terms of human rights; and human rights activists have traditionally, perhaps wrongly, been more preoccupied with state behaviour than they have with either encouraging or restraining the acts of a body—​forceful as it may be—​within an international organization. More specifically, it is contended that four key analytical variables uniquely influence the Council’s ability and willingness to deal with human rights issues: the Council’s nature, its mandate, its means, and its power. First, in terms of its nature, the Security Council is not only an organ composed of states, it is also composed at any moment of only a fraction of states, and within those it knows (uniquely, within the UN) of a category of privileged members, the so-​called permanent members). This surely affects its ability and willingness to take on human rights considerations (I). Second, even if it were organically more prone to commit to human rights, the Council is functionally limited in what it can hope to achieve because of its limited mandate. The Security Council is the body entrusted with the maintenance of international peace and security, a concept whose ties to human rights are, at least to begin with, far from obvious and a constant source of puzzlement for those 3 S Bailey, The UN Security Council and Human Rights (1994 edn, Palgrave Macmillan, 1994); B Fassbender, Securing Human Rights? Achievements and Challenges of the UN Security Council (1st edn, Oxford University Press, 2011); B Ramcharan, The Security Council and the Protection of Human Rights (1st edn, Springer, 2002). 4 To cite only a few, I Österdahl, ‘The Exception as the Rule:  Lawmaking on Force and Human Rights by the UN Security Council’ (2005) 10 Journal of Conflict and Security Law 1; D Newman, ‘A Human Security Council: Applying a Human Security Agenda to Security Council Reform’ (1999) 31 Ottawa Law Review 213; B Fassbender, ‘The Role for Human Rights in the Decision-​Making Process of the Security Council’ (2011) Securing Human Rights 74; M Aznar-​Gómez, ‘A Decade of Human Rights Protection by the UN Security Council: A Sketch of Deregulation?’ (2002) 13 European Journal of International Law 223; P Alston, ‘The Security Council and Human Rights: Lessons to Be Learned from the Iraq-​Kuwait Crisis and its Aftermath’ (1990) 13 Australian Year Book of International Law 107. 5 D Shraga, ‘Securing Human Rights? Achievements and Challenges of the UN Security Council’ in B Fassbender (ed), The Security Council and Human Rights—​From Discretion to Promote to Obligation to Protect (Oxford University Press, 2011).

The Security Council  41 working at the intersection of both issues (II). Third, the Council may decide to incorporate human rights as one of the means that allow it to discharge its mandate. This has probably been a very significant development in the Council’s work, although one can see how it also contains a risk of instrumentalization (III). Fourthly, a new and very different category of problems has emerged resulting from the Council’s sheer power, and the risks it portends for the respect of human rights in a world of failing states, increasingly powerful non-​state actors, and potentially rein-​free global governance. The issue there is whether the Council, whatever else it might do for human rights, may also violate them by exercising its prerogatives in ways that remain deeply unaccountable (IV). This chapter will be as much interested in stated intentions as results. To focus only on the former, on the one hand, is to risk giving a purely formalist account of the Council. The analysis that follows will be realistic in that it will seek to look at actual Council policies and their effect on human rights. To focus only on the latter, on the other hand, is to ignore the extent to which discourse and norms about human rights shape what the Council can hope to do and does. In that respect, the Council is not merely an operational body. It is also, albeit in complicated ways, a normative body that interprets and processes norms, and as a result creates and maintains a number of expectations about what its future behaviour will be, what its goals are, and how decisive human rights norms are.

1.1  The Council’s nature The Security Council is formally one of the UN’s principal bodies and in practice a unique site for the exercise of power because of its responsibilities when it comes to international peace and security. It is, fundamentally, an inter-​governmental body, one comprised at any given moment, by contrast with the General Assembly or the ECOSOC, of only a fraction of the members of the international community. This section focuses on how the Council’s nature as an intergovernmental forum (a) dominated by big powers (b) can limit its ability to deal with human rights concerns, whilst its openness to civil society is on the contrary a limited channel to absorb more influences (c).

(a)  An intergovernmental forum The Council can hold sessions outside its New York seat but, for the most part, holds its meetings at UN Headquarters. This certainly keeps it at a distance from where the centre of gravity of the UN’s human rights activities is, namely in the UN’s Geneva office. One of the advantages of the Security Council is that, unlike for example the General Assembly or the Human Rights Council, it operates in continuous session. That makes it a uniquely reactive body, something which it of course owes mostly to its role as enforcer of international peace and security, but which can be crucial during

42  Frédéric Mégret major human rights crises. This has also made it a particularly active body, especially since the end of the Cold War. Having said that, the fact that, for many decades, the sessions were typically held behind closed doors made many of its debates inscrutable and probably did not favour the taking into account of human rights considerations. It is only since the beginning of the twenty-​first century, that the Council has begun holding more public sessions. Although this was not a move primarily undertaken to favour the incorporation of human rights,6 it is nonetheless a change of policy that in creating more transparency, can only bolster the Council’s accountability, and has probably improved the relevance of human rights concerns. Most sessions are still entirely confidential, however. The Security Council is composed of fifteen member states. In addition to the five permanent member states (China, France, Russia, the United Kingdom, and the United States), the ten other seats are for so-​called elected members. These are elected for two-​year terms according to the system of regional groups (which ensures a certain representativity), and confirmed by the General Assembly. As one might expect, the commitment to human rights of the Council will therefore vary on the basis of its membership and political circumstances. Resolutions have to be adopted by a majority. In this context, ordinary members have often had a role in tilting the balance towards a majority, especially in cases where this is likely to be decisive, that is when there is no threat of veto. Although it is in the nature of ordinary members that they change regularly, some significant segments of the international community stand out. For many decades during the Cold War, a great many states sided systematically with the Soviet Union or the US, leading to an acutely polarized situation at the Council. The non-​aligned group, however, was susceptible to throw its weight either way. The Third World and today so-​called ‘emerging powers’7 often resisted increased human rights scrutiny from the Council, and have tended to do so to this day, particularly in the context of the so-​called ‘Responsibility to protect’. Nonetheless that presumptive resistance to scrutiny can vary considerably depending on who is promoting a resolution about whom. It is noteworthy, for example, that in recent years, a number of African states have become much more vocal about the need for the UN to intervene in certain dire humanitarian situations. Debates on Sudan in 2006, for example, saw states like Ghana (which was at the time a member of the Council), which in the past had tended to see humanitarian and rights-​based intervention as a form of colonialism, quite willing to endorse the principle of strong UN involvement. A greater willingness to break regional ranks is also evident in Asia, where some ASEAN states have gone on the record to say that they would not automatically shield Myanmar from Council sanctions. Council reform has been discussed for much of its existence, although it has only seriously been on the UN agenda since the mid-​1990s. Central to that reform is the 6 There are probably many reasons, but one of the most oft-​cited is the fact that a number of troop-​contributing states who were not permanent Council members were becoming impatient with the fact that they had very little access to decisions that might end up affecting their troops directly. 7 O Stuenkel, ‘The BRICS and the Future of R2P’ (2014) 6 Global Responsibility to Protect 3.

The Security Council  43 possibility of extending the Council’s membership. Brazil, Germany, India and Japan have made some of the most notable bids for seats. Kofi Annan proposed two options for extension, a Plan A which would create six new permanent members and three non-​ permanent ones, and Plan B which would create a new class of members who would serve for four years plus one non-​permanent seat. In both cases the total membership would increase from fifteen to twenty-​four. It does not seem that human rights have featured prominently at all in talks about Security Council reform, which seems principally based on political considerations and the need to have a Council that is more representative of the contemporaneous reality. The increase in membership, if it were ever to become reality, could play out in a variety of unforeseen ways when it comes to human rights, and it is very hard to anticipate what the consequences might be. At least, though, neither plan anticipates an extension of the veto power, something which would have made strong human rights initiatives even more improbable.

(b)  Domination by big powers As mentioned, five of the Council’s seats are for permanent members. The permanent members wield a disproportionate amount of power as, under Article 27 of the Charter, they hold a right of veto. No human rights language or initiative therefore, can get underway without the assent, or at least the abstention, of all permanent members. A positive development in this respect is that the use of the veto has gone down dramatically overall since the end of the Cold War. The softening of the Soviet and Chinese vetoes, in particular, has made it easier to experiment with novel policies and ways to implement them, including human rights. As a result of the continued existence of the veto power (and the rise of its use by the US), however, it remains extremely unlikely that a human rights initiative targeting a permanent member or one of its close allies would be accepted.8 A ‘country situation’ can, nonetheless, be put on the Council’s agenda by a nine member majority, with no possibility of veto. This has occasionally allowed a majority at the Council to at least bring the situation of certain countries up for discussion, even though it was very unlikely that a resolution could be adopted given the opposition of a permanent member. Putting a country situation on the agenda because of human rights concerns can in and of itself send a signal to the regime involved. Indeed, it is crucial to note that the Security Council is dominated by big powers. One of the common traits of the permanent members (perhaps its lowest common denominator) is that they are all, for example, official nuclear weapons holders under the Nuclear Non-​Proliferation Treaty, a particularly intriguing feature in a context where the ICJ was asked to give an Advisory Opinion, which it rendered partly on 8 It is important in this respect to see the veto as much a sociological as a legal constraint. For all uses of the veto, there are innumerable instances where resolutions were not even conceived of because of the certainty that they would be exposed to the veto. The existence of the veto is thus a structuring and implicit constraint on all the activity of the Council to the extent it is internalized by all involved political actors, beyond its actual uses.

44  Frédéric Mégret the basis of human rights, about whether any use of nuclear weapons would be incompatible with international law. The intense power concentration of the Council can be a help to the cause of human rights because, to the extent they can come to agreement, the Council collectively wields considerable power, both political, military, and economic. When it throws its full weight behind enforcement action, for example, as it did in the Korean War or the First Gulf War, the Council is an indispensable guarantor not only of international peace and security, but also, arguably, of international legality. The intensity of the geopolitical interests, however, is also what has made the Council a stage for intense rivalry and distrust. Apart from a few cases such as the almost universal condemnation of the apartheid regime, the Security Council remained mostly aloof from human rights during the Cold War as a result of superpower rivalry. Although the dynamics have changed since the end of the Cold War, rivalry between various combinations of permanent members is still a constant feature of Security Council politics, and it is not hard to see the potential it has to overshadow human rights crises or at least significantly complexify the international community’s response to them. In addition to being big (or relatively big) powers, permanent members have historically had very different attitudes to human rights at home and, accordingly, to the role that human rights should have in their foreign policy (both bilateral and multilateral) and internationally. This is not the place to explore in any detail the human rights practices of each permanent member but, for example, during the Cold War, the Soviet Union adamantly stood for the view that human rights were a matter entirely within the domestic purview of states whereas Western powers typically saw them as relatively more susceptible to outside scrutiny (often, however, as long as it did not involve scrutiny of them or their allies). Today, China and Russia have taken a leading role, particularly in a post-​Libya context, in fending off human rights scrutiny as a matter of principle, although that is not to say that other members will take lightly scrutiny that might affect them or some of the close allies.

(c)  Openness to civil society More relevant to the Council’s evolving human rights inclinations are its attitude to external voices, particularly civil society. If there has been one forum within the UN that has strictly closed its doors to NGOs (including human rights NGOs) historically, it is the Security Council. The Council was above all (and saw itself as) a meeting of states engaged in the characteristically elevated inter-​state activity of maintaining international peace and security. Although the UN might consult NGOs on matters that seemed intimately tied to the organization of society—​issues of health, labour, social policy, and even human rights—​international peace and security was certainly not an issue on which civil society was seen as having much to contribute.

The Security Council  45 The end of the Cold War, however, has gradually changed that rigid attitude. NGOs were often very proactive and slowly found several ways to influence Council debates.9 The involvement of many NGOs in many of the same environments in which the Security Council was present (which included, increasingly, non-​international conflict situations), their interaction with various peacekeeping forces on the ground, their substantial field experience and access to information, and their increasing global legitimacy also meant that they could not be so easily brushed off. Conversely, NGOs themselves probably came to see the importance of engaging the Council, particularly after a number of spectacular Council failures with catastrophic human rights consequences (the Rwandan genocide being no doubt the prime example). Even though influencing the Council might seem a tall order, not trying was not really an option, given the stakes. Of course, bringing in the NGOs may have been seen as largely a public relations manoeuvre for Council members keen on rekindling the body’s prestige and legitimacy, even possibly a distraction from the much more fundamental issue of increasing membership. It nonetheless opened the way to a more complex process of interaction between the Council and international civil society, where the latter has increasingly come to be seen, if not quite as a partner, at least as a voice to be reckoned with. Concretely NGOs have become fairly prominent in the Council through several routes. The easier one is to have access to one or several delegations. For example some NGOs have provided expertise to some of the smaller delegations in the Council, several of which were avid for information and ideas that could help them assume their role. But even some of the relatively bigger delegations (Portugal, Chile, Sweden) and some of the permanent Council members see consultation with NGOs as part of the formulation of their foreign policy and gradually opened doors to the Council. Bilateral meetings between NGOs and one member of the Council became quite common by the late 1990s. The ICRC, always a relative favourite of states, set up an office in New York as early as the 1980s. More activist NGOs with a human rights mandate, such as Amnesty International, made an appearance later. It is important to stress that NGOs do not always speak with a single voice (for example in relation to intervention), and that their views can be at loggerheads, belying the notion that there can always be a single good ‘humanitarian’ or ‘human rights’ perspective on what the Council should do.10 Nonetheless, NGOs such as Human Rights Watch, Oxfam, and Médecins sans Frontières have occasionally converged, as they did in 1994 in advocating for a more resolute intervention by the Council in Rwanda.11

9 M Niemetz, ‘Empowering Civil Society:  How to Increase the Input of NGOs into Security Council Deliberation’ (2014) 6 Journal of Human Rights Practice 69. 10 M Feher, ‘Constancy in Context Symposium on Humanitarian Intervention after 9/​11’ (2006) 24 Wisconsin International Law Journal 773. 11 K Oksamytna, ‘Civil Society and the UN Security Council:  Advocacy on the Rwandan Genocide’, in R Marchetti (ed), Partnerships in International Policy-​Making (Springer, 2017).

46  Frédéric Mégret More importantly, NGOs began organizing themselves collectively to make a difference through such mechanisms as the NGO Working Group on the Security Council, a coalition of about thirty NGOs originally created in 1995 to influence the reform agenda, emphasizing transparency and accountability and which includes some notable human rights NGOs (Amnesty International and Human Rights Watch). The Working Group provides a much-​needed visibility for NGOs and has become a regular interlocutor of various Council members, including the P5. Although not without initial reluctance, the Council eventually agreed that Council ambassadors should be free to regularly meet with it, although only in their national capacity and to the exclusion of the President of the Council. Eventually the meetings became a regular exercise of public ‘briefing’ of the WG. The WG has been credited with being among the first to take up the question of sanctions in Iraq (see infra), for putting the issue of women, peace, and security on the Council’s agenda leading to the adoption of the landmark Resolution 1325, and for emphasizing children’s rights issues. The NGOs’ working group’s main focus is very much on meetings with ambassadors, but the idea of NGOs appearing directly before the Council also gradually made its way. A breakthrough came out of a process of experimentation with what is known as the Arria formula. The Arria formula, from the name of the then Venezuelan ambassador at the Council, had been devised in 1993 as a way to hear voices outside the Council, but had originally been reserved for senior political leaders. Humanitarian organizations were the first to benefit from that privileged channel. Indeed, typically the Council is more interested in humanitarian issues that strictly human rights ones (even though the former has a bearing on the latter). In 1997, however, the human rights community’s engagement with the Council reached an early high point when Pierre Sané, the then Secretary-​General of Amnesty International, was invited to a meeting of the Council. Complex politics of space and decorum were involved. The idea of the meeting had initially been met with resistance from some Council members (including, reportedly, the UK), but a compromise solution was found (the so-​called ‘modified Arria formula’) whereby the meeting would not take place in the normal Council room but in a different chamber, and without interpretation: a rather petty manifestation of statist superiority, but nonetheless a compromise that made the meeting possible. Perhaps one of the early highlights of the Security Council-​NGO relationship with an impact on human rights was Global Witness’s 1998 report revealing the way in which the diamonds trade in Angola was financing UNITA forces. A clear link was drawn in the report between violations of human rights by UNITA and international peace and security.12 Global Witness was invited to brief the Council’s Angola sanctions committee, and it seems likely that the toughened sanctions regime that emerged in the wake of the briefing was largely attributable to the report. This is not to say that the Security Council now routinely interacts with NGOs, particularly human rights NGOs. Most highly sensitive issues geopolitically would not be susceptible to NGO briefings. The fact that the Council hears NGOs hardly means that

12 Global Witness, A Rough Trade: the Role of Companies (1998).

The Security Council  47 it listens to them, and there is always a risk that NGO briefings will become set exercises leading to very little in terms of policy orientation. But several leading human rights NGOs, including Amnesty International, Human Rights Watch, and the International Center for Transitional Justice, alongside a variety of grass-​roots NGOs with rights agendas and many women’s organizations, have had a handful of opportunities to make their case directly to the Council. A crucial channel of communication has thus been set up which may prove very significant in certain circumstances, and sheds light on the Council’s changing sensitivity to human rights matters as well as suggesting new modalities if not of shared governance at least of dialogue.13 An interesting spin-​off of the Arria formula, apart from greater contacts with NGOs, is that parts of the UN with a rights mandate have occasionally been invited in Council meetings to contribute some of their expertise. For example, Louis Joinet, the Independent Expert appointed by the Secretary-​General on the situation of human rights in Haiti, gave the introductory remarks during an Arria on the Council’s Mission to Haiti. The High Commissioner on Human Rights has also been increasingly active in briefing the Security Council, and there have been calls for her to do so more often.14 The Presidents of the ad hoc International Criminal Tribunals, as subsidiary bodies of the Council, also report annually to it, in ways that can emphasize the human rights and transitional justice needs of certain societies. Overall, these changes in governance have a significant incidence on the airing of rights concerns.

1.2  Human rights as an end: redefining international peace and security The relationship between the Security Council and human rights is one that is rooted in the UN Charter, the UN’s institutional balance, as well as some of the dominant assumptions that structured international relations and law after the Second World War. It is a relationship that has evolved tremendously in the last fifty years, alongside the more general evolution of the UN and the Council itself. It is, as a result, a relationship that is complex, elusive, and fluid and most attempts to impose too rigid a conceptual framework on it are bound to fail. Behind the institutional framework lie some very central ideas about the relative roles of power, sovereignty, justice, rights and the law. As is well known, the Charter seeks to strike a balance between some of these conflicting notions. Given the way in which the Second World War and the Nuremberg Tribunal had highlighted the interrelatedness of war and human rights violations, one could have thought that the UN would adopt a more holistic approach to both problems. In conceptual terms, protecting international peace and security was not seen as necessarily 13 T Tryggestad, ‘Trick or Treat? The UN and Implementation of Security Council Resolution 1325 on Women, Peace, and Security’ (2009) 15 Global Governance: A Review of Multilateralism and International Organisations 539. 14 H Hannum, ‘Human Rights in Conflict Resolution: The Role of the Office of the High Commissioner for Human Rights in UN Peacemaking and Peacebuilding’ (2006) 28 Human Rights Quarterly 1.

48  Frédéric Mégret exclusive of the defence of human rights. The dominant perception emerging from Nuremberg was that there was probably no greater threat to human rights than cataclysmic inter-​state conflagrations, so that the averting of war and the maintenance of peace could be presented as realizing one of the primary conditions of possibility for human rights. Moreover, there was a sense that flagrant violations of human rights by the Nazis had been part and parcel of what led to war. Nonetheless, averting war was seen as a task analytically and politically wholly distinct from that of promoting rights. The UN structure has, since its origin, been based very much on a clear division of labour, with each body allotted a specific responsibility and the specific powers that go with it. The Council was thus created to deal with the problem of threats and breaches to international peace and security. The first paragraph of Article 1 in the Charter, for example, which sets forth conditions for peace and security, does not refer to human rights (although it does mention ‘conformity with the principles of justice and international law’). The Council was not expected to become directly involved in human rights. Indeed, at least originally, the concept of international peace and security was and could only be defined in a very narrow way, namely as a consequence of an armed conflict between states. The Council’s exceptional powers by Charter standards were conferred upon it based upon that narrow understanding. In granting the Security Council the legal power to impose binding decisions on all member states and, if necessary, economic and military sanctions, the Charter conferred unprecedented authority on a small group of states. Member states, large and small, did not envisage this grant of power as leading to nascent world government. The prevailing metaphor at the time likened the Council to a police officer, empowered to act when necessary in specific disputes or situations that endangered or breached international peace and security. Governments did not expect the Council to provide remedies for the pervasive ills of the world and would probably have been wary of the Council thinking this was its responsibility. In fact, the very concentration of legal power in the Security Council made it an unacceptable body to deal with the wide range of problems—​economic, social, political—​that called for international attention. Those underlying factors, causes of war and insecurity as they may be, were left to the General Assembly and other United Nations organs. It was anticipated that states would voluntarily agree to assume obligations through treaties or unilateral undertakings in response to collective recommendations. Human rights, as envisaged by the sparse general references in the Charter, fell into this category. Within this perspective, it is not surprising that the Security Council was not accorded a role in the development and implementation of human rights. However, this ‘logical’ division of responsibilities under the Charter turned out to be difficult to sustain in practice in the long run, as the importance of human rights grew, threats to international peace and security evolved, and challenges to the Council’s interventions arose. Moreover, despite the apparent rigidity of functional specialization, Article 24 of the Charter had always directed the Council to use its powers in accordance with the principles of the Charter, which included human rights. Although

The Security Council  49 there is an important difference between not acting in a way that is incompatible with the Charter and actually promoting human rights, that distinction can be a matter of nuance. The end of the Cold-​War, at any rate, by removing some of the ideological obstacles which had blocked the taking into account of human rights, precipitated a renewed interest by the Security Council in the issue. To this day, the only way that human rights can enter Security Council debates is through the idea of a breach or threat to international peace and security. The definition of such a breach or threat has thus become the locus of intense symbolic, conceptual, and political battles. The issue has always been left quite open to Council interpretation. Moreover, there has hardly ever been any sense that this meaning is cast in stone, or that it should be mechanically deduced from first legal principles. To a remarkable extent, international peace and security has been and is ‘what the Council says it is’. The inherent fluidity of the notion is also what ultimately left it open to increasing human-​rights interpretations. The Security Council’s justifications of its enforcement actions and the qualification of what constitute threats or breaches to international peace and security are complex matters, and any given intervention may be justified on several subtly overlapping grounds. Aside from the issue of whether the Security Council does or should respect its own ‘precedents’, this makes it difficult to discern clear patterns in an international environment where geo-​strategic considerations often overshadow the search for anything like legal systematicity. Moreover, the Council may invoke concerns that are connected to human rights without mentioning human rights specifically. The redefinition of international peace and security as entailing at least some human rights violations, notably egregious and systematic violations, can nonetheless be said to have followed four principal patterns of denunciation: racist regimes, the disruption of democracy, humanitarian crises, and the commission of certain international crimes. As can be seen, these reflect a strong interest in systemic and particularly grave human rights violations rather than what might be understood as individual rights issues. Until the 1990s, the Security Council’s strongest condemnations of human rights violations were almost exclusively directed against the minority racist governments in southern Africa. As early as 1960, the Council called on South Africa ‘to abandon its policies of apartheid and racial discrimination’.15 Three years later it adopted two resolutions that were without precedent. It first called on states to voluntarily embargo arms to South Africa16 and appealed to South Africa to liberate all persons imprisoned or subject to other restrictions due to their opposition to apartheid. Soon thereafter the Council adopted a second resolution which recognized the need to eliminate discrimination with respect to human rights and fundamental freedoms for all individuals in South Africa, without regard to race, sex, language, or religion.17 This was only the second time the Council had used the term ‘human rights’ in its resolutions. 15 S/​RES/​134 (1960); the Council did, however, only state that South Africa’s racist policies constituted a ‘disturbance’ of peace and security; it should also be noted that, at that point, the General Assembly had already been condemning the apartheid regime for many years, its first resolution as early as 1949 (44(I)). 16 S/​RES/​181 (1963). 17 S/​RES/​182 (1963).

50  Frédéric Mégret In 1970, the Council warned the South African government that the continuation of apartheid, together with the expansion of its military, constituted a potential threat to international peace and security,18 and in 1976, following the Soweto uprising, it described this racial unrest as in itself such a threat.19 Finally, in 1977, the Council imposed an arms embargo on South Africa, using its Chapter VII authority for the first time in relation to an internal crisis consisting of what it essentially described as massive human rights violations by a government against its people.20 In the years following this break-​through resolution, the Council continued to adopt numerous resolutions directed against apartheid in South Africa. In many of these, it called for a range of human rights-​oriented actions. It demanded amnesties, a renunciation of executions, an end to political trials, and called for the provision of equal education for all South Africans.21 In 1984, it denounced the ‘new’ South African constitution and declared elections for particular racial groups null and void.22 Although these Council resolutions were not accepted by the apartheid regime, they formed a notable contribution to the international campaign against apartheid, which contributed to its overthrow in 1994. The only other state that was subject to such open criticism regarding its human rights practices was Southern Rhodesia, another openly racist regime. Following Ian Smith’s Unilateral Declaration of Independence in 1965, the Council condemned this act ‘by a racist minority’ and urged states not to recognize or assist the new illegal regime.23 Shortly thereafter, the Council adopted resolution 217 (1965) in which it warned that a continuation of the illegal regime would constitute a threat to international peace and security and called for a voluntary oil and arms embargo; it followed suit in its resolution 221 (1966), declaring that the situation in Southern Rhodesia did, indeed, constitute such a threat and also authorizing the country’s administering power, the United Kingdom, to use force, if necessary, to prevent circumvention of the oil embargo. The Council then went on to impose binding economic sanctions under Chapter VII powers and reiterated that the persisting situation constituted a threat to international peace and security.24 Until the regime was ousted, the Council, as in the case of South Africa, continued to condemn specific human rights violations,25 and reaffirmed the right of the people of Southern Rhodesia to self-​determination, itself a human right.

18 S/​RES/​282 (1970). 19 S/​RES/​392 (1976). 20 S/​RES/​418 (1977); the resolution described South Africa’s policies and acts as ‘fraught with danger’ in terms of international peace and security, and deplored the ‘massive violence against, and killings of the African people’, as well as its ‘military build-​up and its persistent acts of aggression against neighbouring states’. 21 See for example: S/​RES/​191 (1964); S/​RES/​417 (1977); S/​RES/​473 (1980). 22 S/​RES/​554 (1984); for further documentation, see The United Nations and Apartheid, 1948–​1994, The United Nations Blue Book Series, Volume I (1994). 23 S/​RES/​216 (1965). 24 S/​RES/​232 (1966). 25 See for example S/​RES/​445 (1979): ‘Indignant at the continued executions by the illegal regime . . . of persons sentenced under repressive laws’ and ‘reaffirming the inalienable right of the people of Southern Rhodesia (Zimbabwe) to self-​determination . . . ’ and S/​RES/​463 (1980), calling for the release of all political prisoners.

The Security Council  51 The Security Council’s decisions against these two racist regimes received wide support from the UN membership and from world opinion. The situation in South Africa was generally perceived by international lawyers as properly described as a threat to international peace and security either in itself or because it lead to a threat or use of armed force across national borders. It is important to note, however, that the Council has never again so unequivocally linked racism to threats to international peace and security—​despite a number of cases where it could arguably have done so. One might have thought, for example, that the situation prevalent in Kosovo during the 1990s, with its enforced separation of Serb and ethnic Albanian populations, might have qualified as a situation akin to apartheid, yet at no time was it described as such by the Security Council. This suggests that the whole series of initiatives taken by the Security Council in relation to South Africa and, to a lesser extent, Rhodesia, are better analysed as a product of the particularly intense political mobilization than as the preliminaries to a real trend whereby the Security Council systematically reacts strongly to situations of racism. It must be said that the South African and Rhodesian regimes were also peculiar in that they were quite explicitly and formally constituted as racist states, providing an exceptionally clear-​cut case for Security Council intervention. Nonetheless, the legacy of the UN’s treatment of the apartheid question is that for the first time a situation involving essentially the treatment of its own citizens by a state was articulated as a threat to international peace and security. This provided the conceptual breakthrough for further forays by the Council into behaviour that would traditionally have been considered entirely domestic.

(a)  Promoting democracy The right of people to choose their governments through democratic processes is recognized in Article 21 of the Universal Declaration and in Article 25 of the International Covenant on Civil and Political Rights. Furthermore, there is a strong conceptual and empirical link between human rights and democracy, so that much of the UN’s action in favour of democracy can also be analysed as simultaneously based on and in pursuance of certain human rights. Although the Security Council has not specifically referred to democracy as a human right, it has recognized in a number of cases that ‘the will of the people’ may be a factor in maintaining international peace and security. The idea that international peace could be endangered by a non-​democratic regime already appeared implicitly in a 1946 Security Council’s resolution which condemned the Franco dictatorship in Spain as a potential danger to international peace.26 This was, however, a peculiar case, because of Franco’s ideological association with Axis states. It is really only much later in its history that the Security Council began describing certain denials of democracy as problematic.



26

S/​RES/​4 (1946).

52  Frédéric Mégret For a long time, invocations of democracy were restricted to conflicts involving territorial disputes between states. The Council, for example, called for a popular vote—​ a plebiscite or referendum—​in the Kashmir dispute between India and Pakistan,27 and the Western Sahara dispute between Morocco and Polisario.28 When Argentina invaded the Falkland Islands (Malvinas), the Council did not request a referendum of the inhabitants (who were almost entirely British), but some members of the Council did stress that the principle of self-​determination required a decision of the people, and the Council’s call for the withdrawal of the Argentine forces seemed to be at least partially premised on exactly such a right.29 In these cases, the link between disrespect of a people’s right to choose their government and the existence of a threat to international peace and security fell well within a conventional inter-​state matrix. But the Security Council has since gone a step further by considering that purely internal disruptions of democracy might in themselves constitute a threat to international peace and security. Generally speaking, it is a noteworthy fact in itself that denunciations of ‘governmental illegitimacy’30 or, conversely, highlighting the need for31 or praising the holding of,32 ‘free, fair and democratic’ have become fairly routine in Security Council resolutions. Of course, the concept of democratic intervention is a contentious one in itself,33 and the notion that the Security Council could become a primary force for the restoration of democracy is even more so.34 Notwithstanding, and although clearly the Security Council has not and will not always take strong action to defend democracy, it has shown itself ready to do so in certain special circumstances. Haiti stands out as a cas d’école of Security Council sponsored ‘democratic intervention’ in the 1990s, even though it has hardly set a trend. The newly elected President, Jean-​Bertrand Aristide, had been ousted following a coup d’état. After it became clear that the military were not going to allow Aristide to come back to power, the Security Council imposed a drastic embargo.35 A number of states had sought to prevent the issue from even featuring on the Council’s agenda and both China and Brazil expressed their concern that intervention to restore democracy exceeded the boundaries of what constitutes a threat to international peace and security, a view that probably reflected 27 S/​RES/​47 (1948). 28 S/​RES/​690 (1991). 29 S/​PV.2364, at 21, 23–​6. 30 See, for example, S/​RES/​1287 (2000) (considering ‘unacceptable and illegitimate the holding of self-​styled elections and referendum in Abkhazia, Georgia’); S/​PRST/​1996/​31 (‘condemning any attempt to overthrow the legitimate Government of Burundi by force or coup d’état’). 31 S/​RES/​1206 (1998); S/​RES/​1216 (1998); S/​RES/​1233 (1999), par 6; S/​RES/​1234 (1999), par 4-​5. 32 S/​RES/​1230 (1999); S/​RES/​1271 (1999); S/​RES/​1274 (1999). 33 In fact, much of the literature on the issue is quite dated. T M Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 American Journal of International Law 46; G Fox, ‘The Right to Political Participation in International Law’ (1992) 17 Yale Journal of International Law 539; A D’amato, ‘The Invasion of Panama Was a Lawful Response to Tyranny’ (1990) 84 American Journal of International Law 516; C M Cerna, ‘Universal Democracy: An International Legal Right or the Pipe Dream of the West’ (1994) 27 New York University Journal of International Law and Politics 289; T Farer, ‘Collectively Defending Democracy in a World of Sovereign States: The Western Hemisphere’s Prospect’ (1993) 15 Human Rights Quarterly 716. 34 D Donoho, ‘Evolution or Expediency: The United Nations Response to the Disruption of Democracy’ (1996) 29 Cornell International Law Journal 329. 35 S/​RES/​841 (1993), S/​RES/​873 (1993), S/​RES/​875 (1993), and S/​RES/​917 (1994).

The Security Council  53 that of many UN members at the time.36 This did force the US, as the prime sponsor of Resolution 940, to frame it so that it would not be the absence of democracy directly which was described as a threat to international peace and security, but the outward flow of refugee and impending humanitarian crisis it might cause on security in the region.37 The Council eventually authorized member states to form a multilateral force under unified command and control to employ ‘all necessary means’ to facilitate the departure from Haiti of the military leadership and the restoration of the legitimately elected authorities.38 As often in such cases, the Council’s emerging jurisprudence opened the way to more creative interpretations, and its decisions in Haiti should be seen, for instance, in light of subsequent action in Sierra Leone. After the military government that had ousted the elected President Kabbah defaulted on its pledge to hand over power in accordance with the Conakry peace agreement, the Security Council imposed an oil and arms embargo and made the Nigerian-​led ECOMOG troops responsible for its enforcement.39 Although Resolution 1132 itself was not without ambiguity,40 the statements made during Council debates made it clear that some members considered that the preservation of democracy was a sufficient ground to intervene.41 ECOMOG was not allowed to go beyond enforcing the embargo by, in particular, intervening in Sierra Leone to re-​establish the legitimate government, but its action to that effect was not condemned by the Security Council as such, and could even be said to have been endorsed by some statements of the Council’s President.42 Interventions to protect democracy can also be seen as part of a larger willingness by the Security Council to intervene in defence of self-​determination. In East-​Timor, for example, the Security Council showed that it was ready to back the organization of elections by force after an eruption of violence (INTERFET).43 Timor, however, was a case of decolonization rather than one of a minority exercising a more general right to self-​determination. In the latter case, it seems the Council will be disinclined to ­encourage any drive to secession. So far, for example, the international community and 36 O Corten, ‘La Résolution 940 du Conseil de Sécurité Autorisant une Intervention Militaire En Haiti: L’émergence d’un Principe de Légitimité Démocratique en Droit International’ (1995) 6 European Journal of International Law 116. 37 The debate is made more confusing by the fact that some authors have considered that interventions to restore democracy should rightly qualify as ‘humanitarian interventions’. L Fielding, ‘Taking the Next Step in the Development of New Human Rights: The Emerging Right of Humanitarian Assistance to Restore Democracy’ (1994) 5 Duke Journal of Comparative & International Law 329. This attempt to collapse different categories of intervention probably obscures the problem rather than clarifies it. See R Gordon, ‘Humanitarian Intervention by the United Nations: Iraq, Somalia, and Haiti’ (1996) 31 Texas International Law Journal 43. 38 S/​RES/​940 (1994). 39 S/​RES/​1132 (1997). 40 The Council, while ‘condemning the military coup’, also declared itself more generally ‘concerned at the continued violence and loss of life . . . the deteriorating humanitarian conditions in that country, and the consequences for neighbouring countries’. S/​RES/​1132 (1997). It is worth noting, however, that unlike Resolution 940, no mention was made of ‘special circumstances’. 41 See generally UN SCOR, 52nd Session, 3822d mtg, UN Doc S/​PV.3822 (1997) and in particular the declarations of the French and Kenyan representatives. 42 See Statement by the President of the Security Council, UN SCOR, 53rd Session at 1, UN Doc S/​PRST/​1998/​ 5 (1998). ‘welcom[ing] the fact that the rule of the military junta has been brought to an end.’ and ‘encourag[ing] ECOMOG to proceed in its efforts . . . in accordance with relevant provisions of the Charter of the United Nations’. 43 S/​RES/​1246 (1999).

54  Frédéric Mégret the Security Council in particular do not seem to have been in favour of the independence of Kosovo—​although clearly any move by the Security Council to allow Kosovo inhabitants to decide their own territorial status, following a referendum for example, would have some considerable implication for the Council’s role.44 On the whole, the possibility that the Security Council might intervene purely on the basis of restoring democracy, despite a seeming confirmation of the Haitian precedent in Sierra Leone, remains contentious in view of the haphazardness of practice and the risk that, under the guise of democratic intervention, various forms of hegemonic practices would be justified. Moreover, although Security Council action has been successful in reinstalling displaced leaders, this cannot as such be said to be a sufficient condition for democracy, and both Haiti and Sierra Leone have continued to experience severe democratic difficulties. These precedents are ultimately better understood as those against racist regimes as belonging to the archaeology of Council interventions, and ultimately more problematic than helpful.

(b)  Humanitarian crises The drafters of the Charter probably did not expect the Security Council to authorize the use of armed force to protect persons from the ravages of civil wars. Yet since the 1990s, a major part of the Council’s activity has focused on precisely this protective role.45 It is true that in such cases the Security Council often abstained from invoking human rights specifically. Humanitarian protection nonetheless can be analysed as aimed at securing fundamental human rights goals to the extent it is designed to protect the lives and welfare of vulnerable peoples in situations of armed violence and depredation. A survey of the Security Council’s practice reveals an increasing willingness to justify Chapter VII action on the basis of humanitarian concerns, although of course the Security Council’s humanitarian endeavours have not all been successes. It is in relation to Iraq that some of the Council’s most important and seminal decisions of principle were taken. Resolution 688 of 1991 in particular, which condemned and demanded an end ‘to the repression of the Iraqi civilian population’ in many parts of Iraq has been hailed as a turning point in contemporary concepts of humanitarian intervention. From a human rights point of view, the resolution was noteworthy for linking a hope that ‘the human and political rights of all Iraqi citizens’ be respected46 with a request to the Secretary-​General to pursue humanitarian efforts in favour of the Iraqi civilian population.47 Resolution 688 led to the creation of safe havens in Northern Iraq where humanitarian assistance could be delivered safely. 44 R Falk, ‘The Haiti Intervention: A Dangerous World Order Precedent for the United Nations Symposium: The United Nations Family: Challenges of Law and Development’ (1995) 36 Harvard International Law Journal 341. 45 D Eisner, ‘Humanitarian Intervention in the Post-​Cold War Era’ (1993) 11 Boston University International Law Journal 195. 46 Ibid. 47 Ibid. Importantly, the Council also insisted that Iraq grant immediate access to humanitarian relief organizations, putting the humanitarian crisis resulting from Iraq’s treatment of the Kurds at the centre of its attention.

The Security Council  55 Whether the Council was legally competent to adopt that resolution became a matter of dispute among UN member states. In the course of Council debates, several states asserted that human rights violations of a flagrant character could be regarded as relevant to keeping the peace.48 But only ten out of fifteen Security Council members supported the resolution, and those who did support it all insisted on the cross-​border nature of the humanitarian problem. Moreover, five members expressed apprehension about a Security Council role in matters they viewed as essentially domestic.49 A precedent was nonetheless set that has served as a blueprint for providing humanitarian protection and assistance in subsequent conflicts. Perhaps the archetype of Security Council authorized humanitarian interventions came with the events in Somalia in 1992. Confronted with a catastrophic humanitarian situation, the Security Council declared itself ‘alarmed at the rapid deterioration of the situation in Somalia and the heavy loss of human life and widespread material damage resulting from the conflict in the country’,50 ordered an embargo on all military equipment to Somalia arguing that the continuation of such a situation constituted a threat to international peace and security. Faced with a deteriorating situation made worst by the obstacles to the delivery of humanitarian assistance, the Council eventually authorized ‘all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia’,51 leading to the intervention of ground troops (UNITAF).52 The UN’s ensuing peacekeeping mission (UNOSOM II) was also authorized to use force to maintain the appropriate environment for the delivery of assistance. This was at the time a highly exceptional decision, and many Council members were only prepared to vote in favour of resolution 794 because Somalia was effectively considered a ‘failed state’. Nonetheless the UN’s intervention in this case was noteworthy for being based exclusively on the fact that the ‘magnitude of human tragedy in Somalia constitutes a threat to international peace and security’ without any further reference to the potential trans-​boundary aspects of the crisis. The ‘provision of humanitarian assistance’, furthermore was ‘recognised’ as an ‘important element in the effort of the Council to restore international peace and security in the area’.53 The conflicts in the former Yugoslavia are another important case in point, with the Security Council repeatedly authorizing force on the basis of, inter alia, the existence of a humanitarian crisis.54 The initial step came with the enlargement of the United Nations Protection Force’s (UNPROFOR) mandate55 to secure the Sarajevo airport for the delivery of humanitarian aid.56 In a 1992 resolution, after stating that the ‘provision of humanitarian assistance . . . is an important element in the Council’s effort to restore 48 See, among others, statements by the Foreign Ministers of Germany and Belgium. 49 See, generally P Alston, ‘The Security Council and Human Rights: Lessons to Be Learned from the Iraq-​ Kuwait Crisis and Its Aftermath’ (1990) 13 Australian Year Book of International Law 107, 133. 50 S/​RES/​733 (1992). 51 S/​RES/​794 (1992). 52 Ibid. 53 S/​RES/​767 (1992). 54 S/​RES/​770 (1992). 55 Established by S/​RES/​743 (1992). 56 S/​RES/​761 (1992); S/​RES/​770 (1992).

56  Frédéric Mégret international peace and security’, the Security Council ‘called upon all states to take’—​ using an expression which is generally held to green light use of force —​‘all measures necessary to facilitate’ the delivery of humanitarian aid.57 UNPROFOR was specifically asked to support efforts by the United Nations High Commissioner for Refugees to deliver humanitarian relief throughout Bosnia and Herzegovina, and to protect convoys of released civilian detainees if the International Committee of the Red Cross so requested. Almost a year later, the Council used its Chapter VII authority in unprecedented fashion to establish so-​called ‘safe areas’ to ensure free access of humanitarian aid.58 Significantly the Security Council based its Chapter VII authorizations action in relation to the five safety-​zones directly on humanitarian and human rights concerns.59 For the first time in the history of the United Nations, the delivery of humanitarian aid, initially with the consent of the parties and later by force, became a means of dealing with an ongoing armed conflict. Despite these significant advances in the Council’s understanding of its mandate, however, attempts by the Security Council to deliver humanitarian assistance in armed conflict have been plagued by a number of problems. Humanitarian mandates have, for example, occasionally been criticized for showing a distinct vulnerability to being stretched beyond the original intentions of at least some of their authors. The practice of the United States, the United Kingdom, and France of continuing to bomb the safety zones in Iraq60 based on a loose interpretation of the legal consequences of the Gulf War,61 for example, has not proved convincing to all,62 and the linkage between Iraqi persecution of its minorities and its potential aggression remains to this day a matter of conjecture.63 Even if such mandates are not used for purposes at odds with humanitarianism, humanitarian assistance authorized by the Security Council has often been of dubious efficiency. Although Operation Restore Hope is credited with saving a considerable number of lives, UNOSOM II is generally thought to have inaugurated a ‘dark period for UN peacekeeping.’64 Its ‘nation-​building’ activities did go some way toward ending the famine. Factional conflicts and widespread lawlessness, however, greatly impeded these efforts and obscured the positive benefits of UN assistance, eventually leading to the withdrawal of UNOSOM after several prominent incidents involving US casualties. A similar experience is the legacy in Bosnia where, despite UNPROFOR’s considerable 57 S/​RES/​770 (1992). 58 S/​RES/​824 (1993) and S/​RES/​836 (1993). 59 S/​RES/​824 (1993), S/​RES/​836 (1993), S/​RES/​900 (1994), S/​RES/​913 (1994). 60 I Johnstone, Aftermath of the Gulf War: An Assessment of UN Action (L Rienner Publishers, 1994). 61 O Schachter, ‘Legal Aspects of the Gulf War of 1991 and Its Aftermath’ in W Kaplan and D McRae (eds), Law, Policy, and International Justice: Essays in Honour of Maxwell Cohen (McGill-​Queen’s Press-​MQUP, 1993). 62 C Gray, ‘After the Ceasefire: Iraq, the Security Council and the Use of Force’ (1995) 65 British Yearbook of International Law 135, 162–​3. 63 Moreover, one only has to compare the reaction of the Security Council to the similar (if not worse) plight of the Kurdish population a scant distance away—​in neighbouring Turkey—​to demonstrate graphically the limits of Security Council willingness to intervene solely on the basis of human rights considerations. 64 A Clapham and M Henry, ‘Peacekeeping and Human Rights in Africa and Europe’ in A Henkin (ed), Honoring Human Rights and Keeping the Peace—​Lessons From El Salvador, Cambodia, and Haiti Honoring Human Rights and Keeping the Peace (Martinus Nijhoff Publishers, 2000) 149.

The Security Council  57 efforts, civilian populations continued to suffer disproportionately from the war. Indeed, concerns have been raised by specialized humanitarian agencies as to whether the Council’s involvement in assistance provision might not lead to a militarization of humanitarian assistance prejudicial to the perception of its neutral and independent character. Finally, the case has been made that even if humanitarian assistance were entirely successful in a given situation, it may in some cases be part of the problem rather than the solution. The Bosnian population, in particular, was probably not suffering primarily from humanitarian shortages, but from a much graver campaign of ethnic cleansing and genocide which doomed the strictly humanitarian part of UNPROFOR’s mandate. One may thus wonder whether the Security Council’s unique prerogatives in terms of international peace and security might not be put to better use by stopping such massive human rights violations in the first place, rather than treating their symptoms.

(c)  Atrocities and international crimes Although sometimes confused under the broad-​heading of ‘humanitarian intervention’, the kind of action that the Security Council may take to prevent the commission of some of the worst atrocities is conceptually distinct from the above-​reviewed efforts to provide basic security and food assistance to populations in need. Both may overlap in the sense that areas of intense conflict sometimes involve both a dismal humanitarian situation and systematic violations of human rights; by the same token, not all dire humanitarian situations are caused by or necessarily involve international crimes. International crimes such as genocide or crimes against humanity, although they are most often cast in the language of international criminal law, are of course analysable as massive human rights violations (right to life, right to be free from torture, right to be free from discrimination). Considerable expectations have been placed on the Security Council that it would act as a sort of ‘enforcer of last resort’, and therefore as a sort of forceful linchpin of the international human rights regime, when all other means have failed and grave and widespread or systematic violations are ongoing. These expectations have tested like little else the ultimate willingness of the Council to act in a way that is fully consonant with its increasing comprehension of international peace and security and human rights as being intimately connected. In the former Yugoslavia, for example, the Security Council condemned ‘in the strongest possible terms’ and on numerous occasions ‘unspeakable acts of brutality’, ‘the massive, organised and systematic detention and rape of women’, the ‘large scale displacement of civilians’, the ‘deliberate impeding of the delivery of food and medical supplies to the civilian population’, the existence of a ‘systematic campaign of terror’, of a ‘consistent pattern of summary executions, rape, mass expulsion, arbitrary detentions, forced labour and large-​scale disappearances’, the ‘looting’, the ‘killing of civilians’ and

58  Frédéric Mégret the ‘abhorrent and systematic practice of ‘ethnic cleansing’ as ‘clear violations of international humanitarian law and of human rights’ which threatened international peace and security.65 In addition to the imposition of several embargoes and no-​flight zones, UNPROFOR was deployed specifically, inter alia, to protect civilian populations particularly in certain designated protected areas first in Croatia and later in Bosnia.66 As part of its mission, the United Nations force was explicitly authorized to use force in self-​defence in response to attacks against these areas, and to co-​ordinate with the North Atlantic Treaty Organization (NATO) the use of air power in support of its activities. UNPROFOR’s mixed character as a peacekeeping mission and one designed to ensure the protection of civilian populations, the confusion between protection and assistance, however, made it incapable of preventing the commission of crimes against the civilian population that occurred in all areas under its nominal protection. The tragic culmination of this incapacity came with the infamous ethnic cleansing of Srebrenica, one of the UN protected enclaves. It was only by the time NATO contributed its firepower in 1995 that an end to the worst suffering came. But perhaps the Security Council’s worst failures in that respect are illustrated by its incapacity to take adequate action at all in cases where its intervention would have mattered most. The genocide unfolding in Rwanda between April and June 1994 probably represents an all-​time-​low in that respect. Despite some delay in doing so, the Council did deplore the ‘large-​scale violence in Rwanda, which has resulted in the death of thousands of innocent civilians, including women and children’, the ‘fighting, looting, banditry and the breakdown of law and order’, the ‘mindless violence and carnage’ the ‘very numerous killings of civilians’, the ‘systematic, widespread and flagrant violations of international humanitarian law in Rwanda, as well as other violations of the rights to life and property’ and eventually described the events for what they were, namely ‘genocide’.67 One might have thought that the Council had thereby put itself in a situation where it could not avoid taking action in accordance with the clear obligations imposed on all states by the Genocide Convention. Instead the Council rejected the only option that might conceivably have stopped or at least slowed down the atrocities, and reduced UNAMIR’s force level by half.68 Subsequent efforts to moderate the effects of the ensuing conflict in Rwanda which by then threatened to cause another wave of violence focusing on the Hutu population, also failed. In addition to imposing an embargo on Rwanda, an expanded mission was planned (UNAMIR II) which was to ‘contribute to the security and protection of displaced persons, refugees and civilians at risk in Rwanda, including the establishment and maintenance of . . . secure

65 See S/​RES/​787 (1992); S/​RES/​798 (1992); S/​RES/​808 (1993); S/​RES/​819 (1993); S/​RES/​827 (1993); S/​RES/​941 (1994); S/​RES/​1010 (1995); S/​RES/​1019 (1995); S/​RES/​1034 (1995). 66 S/​RES/​758 (1992). 67 S/​RES/​912 (1994); S/​RES/​918 (1994); S/​RES/​935 (1994). 68 S/​RES/​912 (1994).

The Security Council  59 humanitarian areas’.69 Despite the official creation of the mission,70 the Secretary General’s efforts were met with state inertia71 and prospects of establishing the operation rapidly receded.72 The Security Council eventually had no choice but to approve the use by member states of ‘all necessary means to achieve the humanitarian objectives’ of UNAMIR II.73 This led to the French-​commanded mission Operation Turquoise. Although that operation did arguably protect one and a half million displaced persons and refugees, concerns have been raised that French failure to arrest those responsible for the genocide in turn contributed to an ever-​worsening humanitarian situation in what was then still Zaire. Eventually, the UN went through significant soul searching about Srebrenica and Rwanda and at least recognized its political responsibility in allowing atrocities to occur.74 The limits of the Security Council’s willingness to authorize armed intervention in case of large-​scale violation of human rights, however, were dramatically tested in Kosovo where a campaign of ethnic cleansing was taking place in 1999. The Security Council had condemned the ‘excessive and indiscriminate use of force by Serbian security forces and the Yugoslav Army which have resulted in numerous civilian casualties’ and stressed that it was ‘deeply concerned  . . .  by reports of increasing violations of human rights and of international humanitarian law.’75 In addition to the already existing embargo against the Yugoslav Republic, a plan of action was laid out that authorized an OSCE-​led Kosovo Verification Mission and went so far as to suggest that ‘should the concrete measures demanded in this resolution and resolution 1160 not be taken . . . further action and additional measures to maintain or restore peace and stability in the region’76 might be considered. Such ‘further action’ however, was blocked by the veto of some of the permanent members, notably Russia. This led NATO to intervene without an explicit authorization. By the time such conduct was underway, NATO effectively put the Security Council before the fait accompli of its actions. In the event, no requisite majority emerged within the Security Council to condemn the raids.77 But strong doubts remain—​notwithstanding the still open debate on whether the raids did indeed constitute a successful instance of humanitarian intervention—​as to whether it was ever the Security Council’s intention to authorize such an intervention. Whatever the answer to that particular debate, it showed both the limits of Security Council efforts to prevent 69 S/​RES/​918 (1994). 70 S/​RES/​925 (1994). 71 S/​1994/​728. Many of the troop offers were highly conditional. 72 Such a failure is of course not entirely and strictly attributable to the Security Council as a legal entity, but one might have thought that at least some of the permanent members who voted in favour of the resolution might have been more forthcoming in allowing the mission to proceed. 73 S/​RES/​929 (1994). 74 C Ryngaert and N Schrijver, ‘Lessons Learned from the Srebrenica Massacre: From UN Peacekeeping Reform to Legal Responsibility’ (2015) 62 Netherlands International Law Review 219. 75 S/​RES/​1199 (1998). 76 Ibid. 77 The Russian Federation did introduce a condemnatory draft resolution, but was only supported by China and Namibia [S/​PV.3989 (1999)].

60  Frédéric Mégret massive crime and the danger that a state or a group of states might consider themselves authorized to intervene in cases where no Council mandate was forthcoming. In the wake of the Kosovo crisis, a considerable effort was launched within and around the UN to seek to mend some of the divides the episode had exposed. While one could make the argument during the Rwandan and even the Kosovo crisis that the UN was caught without an established doctrine on the commission of massive atrocities, the UN had been actively involved in removing that possible excuse for itself and its members by the mid-​2000s. Several ‘lessons-​learnt’ exercises78 led to the promotion and eventual solemn adoption by the General Assembly of what came to be known as the ‘Responsibility to Protect’ (‘R2P’). The name, in its now formal form, suggests something somewhat grander than what was eventually adopted, but it does constitute the most authoritative statement to date of what the UN thinks it should and will do when confronted with major atrocities. According to the Millennium + 5 Outcome document, ‘The international community, through the United Nations, . . . has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means . . . to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’. Furthermore, member states affirm that ‘[i]‌n this context, we are prepared to take collective action, in a timely and decisive manner’.79 In an attempt to pre-​empt fears that R2P may be used as an excuse to intervene in the affairs of sovereign states on the basis of mere pretexts, the resolution emphasizes that the responsibility is primarily of the state wherein atrocities occur, and that the Council is only to intervene if states are ‘unable or unwilling to protect their citizens’. There is no mistaking that this is quite a striking and novel commitment. On the one hand, this does seem to indicate that in theory UN members will not stop short of using force to prevent genocide, and solemnly recognize that they have responsibilities that go beyond the contingent politics of the Council, or any other qualm that the international community may have about legitimizing intervention in the name of human rights. By the same token, the reaction of UN members suggests that we are far from a radical change. The resolution, to begin with, was not well received by all. Venezuelan President Chavez criticized it for making it easier for powerful countries to invade developing ones. The Chinese ambassador indicated that his country was ‘against any wilful intervention on the ground of rash conclusion that a nation is unable or unwilling to protect its own citizens’.80 The Resolution’s status, furthermore, is weak. It is in no way a revision of the Charter and should be seen, rather, as an attempt to consolidate certain ‘understandings’ of the Charter by indicating the standard to which the UN intends to hold itself. 78 The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (ICISS) (December 2001); High Level Panel on Threats, Challenges and Change (2 December 2004), particularly paras 199–​203; In Larger Freedom, A/​59/​2005, 21 March 2005, particularly paras 122–​35. 79 A/​59/​2005, 15 September 2005, para 139. 80 A Road Towards Peace, Harmony and Common Development, Statement by Mr Li Zhaoxing, Minister of Foreign Affairs of China at the General Debate of the 60th Session of the UN General Assembly, New York, 19 September 2005.

The Security Council  61 There are, moreover, more than a few ambiguities about the statement itself. For one thing, this is the General Assembly saying that it has a duty to take action—​but forceful action, in truth, can only really be adopted by the Security Council. The Resolution does pay lip service to the notion that action has to be taken ‘through the Security Council,’ but that is a bizarre formulation: the Council is not an instrument for the General Assembly to achieve its aims. Moreover, the Resolution makes it clear that any action must be taken ‘in accordance with the Charter’, particularly chapters VI to VIII, which makes one wonder how far the authors of the resolution were really willing to go in terms of challenging some of the deficiencies of the Charter.81 The duty to protect does proclaim a standard, but it then relies for the upholding of that standard on the very decision-​making mechanism (including, for example, the veto power) which made it so easy for it to be ignored. This is why it is noteworthy that the Security Council itself, subsequent to the General Assembly’s adoption of R2P, did endorse the standard. In Resolution 1674 adopted on 28 April 2006, the Council ‘reaffirms’ the relevant paragraphs of the 2005 World Summit Outcome document on the responsibility to protect. This statement has been hailed as a significant victory by the partisans of R2P. This is hardly a resounding and solemn proclamation that times have changed. It appears in the middle of a resolution that deals with many other issues, and does not make it clear what the Council is committing itself to. In particular, there has been little response either collectively or even individually—​unsurprisingly—​to the several calls that have been made for the permanent members to commit themselves publicly to refrain from using their veto in cases of genocide and large scale human rights abuses.82 In the ambiguities of concept itself, and of the General Assembly and Security Council’s commitment, lie many of the inconsistencies that have since seemed to expose the ‘responsibility to protect’ as a not particularly operational concept. The Council’s response to the Darfur crisis, for example, is a sobering reminder of the extent to which the Council is still very much an unreliable rights enforcer when it comes to atrocities. The scale of atrocities in Sudan was impossible to deny (200,000 killed, as many as two million displaced), and in all likelihood greater than many scenarios which had warranted strong Security Council action in the past (eg Somalia, Haiti). Moreover, the Council put itself in a situation where it could not deny the existence of international crimes. It set up an International Commission of Inquiry83 headed by the Italian jurist Antonio Cassese, which came back with strong evidence that at the very least crimes against humanity had been committed and insisted ‘[t]‌he international

81 The Report of the International Commission (supra, note T L Tryggestad, ‘Trick or Treat? The UN and Implementation of Security Council Resolution 1325 on Women, Peace, and Security’ (2009) 15 Global Governance: A Review of Multilateralism and International Organisations 539.) had worked on the hypothesis that the Security Council might be ‘paralysed’, but the Millennium + 5 Outcome document is very ‘legitimist’ in that it does not anticipate that possibility and is only interested in what the Council might and should do. 82 High Level Panel, supra n 78, para 256 (‘We . . . ask the permanent members, in their individual capacities, to pledge themselves to refrain from the use of the veto in cases of genocide and large-​scale human rights abuses’). 83 S/​Res/​1564, 18 September 2004.

62  Frédéric Mégret community must take on the responsibility to protect the civilians of Darfur’.84 In fact, the Council went as far, when adopting Resolution 1706, as to refer to the responsibility to protect.85 Having put itself squarely in front of its responsibilities, the Council then proceeded to by and large evade them. It is only by August 2006 that it finally decided on the idea of sending a 20,000 strong peacekeeping force. But the Council simultaneously declined to exercise more muscle when it could have, by ‘inviting’ rather than ‘requiring’ Sudan to consent to the deployment of those troops. The imposition of sanctions, in the meantime, had been haphazard, and much vaunted smart sanctions have been used so sparingly as to put in question the Council’s resolve. The tendency that the Council has had of going out of its way to alleviate any concern that Sudanese sovereignty might be encroached upon has seemed to make short shrift of any serious commitment to R2P. Along the same lines, the motivation to intervene seemed to be crucially missing in Syria, even by the time the conflict in that country had reached proportions that clearly showed evidence of massive atrocities. What might have been the best test case for R2P seems to have been its graveyard.86 By the same token, on other occasions the Council has taken action which seemed to draw on R2P rhetoric in ways that were seen as eminently problematic by some members. In 2011, for example, the Security Council insisted that Libya had a ‘responsibility to protect’ its people and promptly ordered air strikes to protect civilian populations. Although the strict foundation of the intervention was the existence of a breach of international peace and security and the Council’s residual power to protect R2P was not explicitly invoked, the surrounding debates suggested that protecting civilians was a very significant motivation. The intervention went ahead and certainly protected lives in Benghazi, but soon it seemed that NATO’s targets were much broader than what would have been strictly justified by protection civilians. Indeed, it seemed at times as if the reasoning was that what would be most likely to protect civilians was simply a change of regime in the country. The case for intervention has not been particularly reinforced by the positively catastrophic aftermath of the after-​Gaddafi. Another situation which has sometimes been presented as showcasing the collective dimension of R2P is the Council’s intervention in Côte d’Ivoire.87 In this context, it may be true that R2P in the eyes of its drafters was never meant to be solely or even principally about Council authorized military intervention.88 Much of the concept is indeed, on the face of it, devoted to preventive measures that must be taken by a variety of actors. In practice, however, Russia and China were adamant 84 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-​General, 25 February 2005, para 569. 85 S/​RES/​1706 (2006), second paragraph of the preamble. 86 G Evans, ‘The Consequences of Non-​Intervention in Syria: Does the Responsibility to Protect Have a Future?’; T Weiss, ‘Military Humanitarianism: Syria Hasn’t Killed It’ (2014) 37 The Washington Quarterly 7; C Keeler, ‘The End of the Responsibility to Protect’ (2011) 12 Foreign Policy Journal. 87 A Bellamy and P Williams, ‘The New Politics of Protection? Côte d’Ivoire, Libya and the Responsibility to Protect’ (2011) 87 International Affairs 825. 88 A Bellamy, ‘The Responsibility to Protect and the Problem of Military Intervention’ (2008) 84 International Affairs 615.

The Security Council  63 after Libya that they would not be caught again failing to veto such brazen intervention. On other occasions, loose suggestions to invoke R2P, as France suggested following the Myanmar government’s inaction in the wake of the 2005 tsunami, were treated with a high degree of scepticism.89 It may be that these excessively liberal invocations of R2P have had the cost of making it much harder to invoke the concept in those cases where it is, arguably, needed and useful.90 In conclusion to this section, the realization that racist regimes, threats to democracy, humanitarian crises, and the commission of international crimes all also constitute breaches or threats to international peace and security can be argued to have set the stage for a gradual and more direct taking into account of human rights violations as such. Indeed, by the early 2000s it seemed that the meshing of international peace and security and massive human rights violations was well under way, at least at a rhetorical level. One of the ways in which this change has been effected is through the concept of human security, which was created in large part to wield the two notions. Security is redefined as human; human rights are formulated in a way that emphasizes basic protection.91 More generally, there has been a dramatic softening of the edges of ‘international peace and security’ as a concept, which is increasingly being defined in a human-​centred way (if not quite always in rights language specifically). A striking example of this is the acceptance by the Security Council that the AIDS epidemic constitutes a threat to international peace and security. Quantitatively speaking there has been a clear inflation of ‘human rights talk’ in Council debates. Qualitatively speaking, the Council has shown renewed interest in various categories of especially vulnerable categories of people such as women,92 children,93 refugees,94 and, generally, civilians in armed conflict,95 and it rarely misses an opportunity to remind states of their obligations under those headings. Council resolutions are increasingly notable for their willingness to take into account and encourage human rights mechanisms such as the High Commissioner for Human Rights96 or the Commission on Human Rights.97 Some of that contemporary human

89 A Özerdem, ‘The ‘Responsibility to Protect’ in Natural Disasters: Another Excuse for Interventionism? Nargis Cyclone, Myanmar’ (2010) 10 Conflict, Security & Development 693; J Haacke, ‘Myanmar, the Responsibility to Protect, and the Need for Practical Assistance’ (2009) 1 Global Responsibility to Protect 156; R Cohen, ‘The Burma Cyclone and the Responsibility to Protect’ (2009) 1 Global Responsibility to Protect 253. 90 J Morris, ‘Libya and Syria: R2P and the Spectre of the Swinging Pendulum’ (2013) 89 International Affairs 1265. 91 R McRae and D Hubert, Human Security and the New Diplomacy: Protecting People, Promoting Peace (McGill-​ Queen’s Press-​MQUP, 2001); L Axworthy, ‘Human Security and Global Governance: Putting People First’ (2001) 7 Global Governance 19. 92 See S/​RES/​1325 (2000). 93 In S/​RES/​1261 (1999) and S/​RES/​1214 (2000), the Council committed itself to a similar protection of children in armed conflict, including with regard to sanctions. 94 S/​RES/​1208 (1998) on refugees in the African context outlined the human rights and humanitarian obligations the Council considers itself and the international community to have with regard to refugees in general. 95 The Council adopted a similar line in its two resolutions concerning civilians in armed conflict, namely S/​ RES/​1296 (2000) and S/​RES/​1318 (2000). 96 S/​RES/​1160 (1998) at par 16(e). Resolution 1160 (1998) is of particular interest, inasmuch as the Council declared that decisions concerning the lifting of sanctions against the Federal Republic of Yugoslavia would depend inter alia upon the Yugoslav government facilitating a mission to Kosovo by the UN High Commissioner for Human Rights. See also S/​RES/​1370 (2001). 97 S/​RES/​1234 (1999) at par 7.

64  Frédéric Mégret rights talk by the Council has on occasions manifested a tendency to become detached from any obvious threat to international peace and security. By the mid-​2000s, the US, UK, and France, urged by some NGOs, began a trend of more aggressively seeking to use the Security Council to put pressure on regimes that were seen as blatantly violating human rights, even when the human rights violations occurred in largely domestic contexts with few obvious international repercussions. For example, the Western permanent members have on several occasions sought to censure such states as Burma, Belarus, Sudan, and Zimbabwe. The argument behind raising the situation of those countries before the Council seems to have been that today’s grave human rights violations might become tomorrow’s threats to international peace and security. Given the likelihood of opposition otherwise, draft resolutions have remained relatively hortatory in character. They nonetheless seemed to indicate a quite revolutionary path whereby the Council could increasingly act as a guardian of human rights, in a way that was increasingly disconnected from any nexus—​other than rhetorical—​ with international peace and security. By the same token, the Council may have reached a ceiling when it comes to reframing international peace and security in terms of more ordinary albeit quite widespread human rights violations. Although it has been argued that gross violations of human rights should be considered as presumptive threats to peace and justify action under Chapter VII even if no traditional threat to international peace and security exists, this does not seem to be the consensus view.98 China and Russia, in particular, with the backing of some of the Third World, have so far successfully blocked such attempts, often preventing as much as a discussion of those situations. On one occasion, as Burma was being targeted by a US sponsored resolution, the Russian ambassador made it clear that in his mind ‘the situation in this country does not pose any threat to international or regional peace’. He went on to add in no ambiguous terms that ‘ . . . attempts aimed at using the Security Council to discuss issues outside its purview are unacceptable’. Interestingly, one of the ambassador’s arguments was that the issue of Myanmar was already being dealt with by other UN bodies and that ‘Substitution of (these bodies’) efforts by the Security Council would be counterproductive and would not facilitate the division of labour between the main bodies of the World Organization, which is provided for in the UN Charter, or development of their constructive cooperation’.99 Although the institutional argument here may be largely opportunistic, it does underline a rift among Council members about the proper distribution of roles within the UN when it comes to human rights. In 2017, when the US sought to put demonstrations in Iran on the Council’s agenda under Article 34 (allowing the Council to investigate any dispute that might lead to international friction), it was met with significant opposition, several countries noting 98 I Österdahl, ‘By All Means, Intervene! (The Security Council and the Use of Force under Chapter VII of the UN Charter in Iraq (to Protect the Kurds), in Bosnia, Somalia, Rwanda and Haiti)’ (1997) 66 Nordic Journal of International Law 241. 99 Statement by His Excellency Ambassador Vitaly Churkin, Permanent Representative of the Russian Federation to the United Nations at the meeting of the Security Council, 12 January 2007.

The Security Council  65 that the Council was simply not the appropriate forum for such an issue. The representative of the Russian Federation went as far as to describe the initiative as totally inappropriate and found unacceptable the use of ‘bogus pretexts’ to include purely domestic issues on the Council’s agenda.100 China also vigorously drew a line between international peace and security proper, and questions of human rights, whilst El Salvador insisted that other bodies were more suited to such discussions. Indeed, it may be that the Council has occasionally ‘pushed its luck’ in trying to discuss human rights violations, at the risk of precipitating a backlash and reassertion of the notion of ‘purely internal affairs’. International peace and security and human rights stricto sensu, therefore, show no sign of being comprehensively equated any time soon outside particularly dramatic circumstances. Indeed overall the phenomenon of defining international peace and security in terms of human rights remains deeply paradoxical. While the Council has occasionally been strong on the rhetoric, it has in no way been consistently so, and has not always followed up with action commensurate with its level of condemnation, even where the evidence of generalized and systematic human rights violations was the most flagrant—​ Darfur is the obvious example. The Security Council’s ‘normative’ or ‘quasi-​normative’ boldness, therefore, is both inconsistent and incomplete, even if it may have sown the seeds for future developments.

1.3  Human rights as a means: making human rights part of the Security Council’s activities Human rights have increasingly become a motive for and goal of the Security Council’s actions, but the Council has also increasingly been involved in ‘using’ human rights to achieve its mandate. This section proposes to examine those actions that are taken by the Security Council that can be specifically described as based on human rights. These are analytically distinct from traditional ‘international peace and security measures’ which aim to improve human rights; rather they are ‘human rights measures’ which, essentially, aim to bring about international peace and security. The Council’s involvement in human rights activities can be seen as the logical corollary of the idea that an inherent dimension of international peace and security is respect for human rights. This sub-​section will deal with objective incorporation of a human rights component, regardless of their formal denomination. As a preliminary, it may be worth pointing out that over the years the Security Council has discreetly developed its own methods of human rights investigation, which have some normative bearing for UN human rights protection in general. One mechanism which has rarely been analysed systematically as such but which is noteworthy is the creation by the Council of experts’ commissions which have a mandate to investigate, among other things or even principally, the commission of grave human rights violations. These subsidiary bodies have at times produced significant

100

S/​13152, 5 January 2018.

66  Frédéric Mégret human rights analysis which, even though it is principally designed for internal decisional consumption by the Council, can be seen as a distinctive Council contribution in the domain of human rights. Early such commissions include the Security Council Commission on Israeli Settlements which operated in the late 1970s and early 1980s and occasionally mentioned human rights concerns.101 Notable commissions since that have had a strong core human rights component include the Commission of Experts on violations of international humanitarian law in the Former-​Yugoslavia (1992), the Commission of Experts to investigate allegations of mass killings of civilians and genocide in Rwanda (1994), and the International Commission of Inquiry on Darfur (2006). The enthusiasm for such commissions at the Council seems to have waned however and, characteristically, the Independent Commission of Inquiry on Syria was set up by the Human Rights Council, with one of its members, Carla del Ponte, even resigning specifically because of what she claimed was inadequate Security Council support. The Council did in 2015 create a panel investigating the use of chemical weapons by Syria which can be seen as interested in a particularly blatant kind of war crime but in ways that overlap with more conventional proliferation and disarmament concerns. Moreover, the mandate of the panel was discontinued by 2017 amidst bickering between veto powers. Human rights components are unlikely to appear as such in enforcement actions but have a role to play in peacekeeping and, most importantly, in peace-​building operations. The concept of peace-​building reflects a departure from traditional concepts of peacekeeping and an increasing desire by the Council to go beyond treating, as the Brahimi Report put it, ‘the symptoms rather than the sources of conflict’.102 To the extent that human rights are considered by the Council as part of the very fabric of peace, their promotion has featured prominently in peace operations under different guises, whether as part of Council sponsored election monitoring (A), or activities specifically directed at reinforcing human rights in general (B). An intriguing but major part of the Council’s activities since the 1990s has been its role in dealing with complex problems of transitional justice, truth and reconciliation in the aftermath of major human rights violations, leading it to assume a leading role in the creation of international criminal tribunals (C).

(a)  Election monitoring The Security Council’s concern with democracy has expressed itself in multiple ways, from the rhetorical urging of states to respect the verdict of elections to, as has been seen, the possibility of Chapter VII action in certain cases of forceful disruption of democracy. At the same time, filling a crucial gap between these two extremes, the UN

101 102

S/​Res/​446 (1979). S/​2000/​809 and A/​55/​305.

The Security Council  67 has often itself been involved directly in the organization and conduct of elections, prompting one author to comment that monitored elections have ‘become virtual fixtures in U.N.-​brokered peace accords to end civil wars’.103 In that context, a number of ‘political’ rights are being promoted through the organization of elections such as freedom of expression, of organization, of movement, or of assembly. The Security Council had been involved in election monitoring during the Cold War in the limited context of decolonization. This was the case, most notoriously, with Namibia (former Southwest Africa), leading that country successfully to independence.104 The key difference in the post-​cold War era is that the Security Council has increasingly undertaken election monitoring in sovereign nations. The Security Council’s role in Angola, in that respect probably marked a transition from the more traditional decolonization endeavours to the peace-​building operations that would become a hallmark of the UN’s activities from the 1990s onwards.105 Although election monitoring is certainly not the exclusive domain of the Security Council,106 it has often relied on its enforcement support in areas of upheaval and violence.107 Election monitoring mandates often derive their legitimacy from existing peace agreements.108 Such mandates generally come on top of broader and already existing ones concerned with pacification (demilitarization, demobilization, demining, etc). Security Council sponsored elections can fit in a variety of ways into peace-​building. They may be part of a transition from war to peace (El Salvador; Cambodia; Central African Republic), decide the status of an internationally disputed territory (Sahara), form the backbone of a complex minority-​protection scheme in the context of the restitution of a territory to a state (Eastern-​Slavonia), be aimed at stimulating local democracy (Kosovo), or pave the way to independence (Timor). Election monitoring is often distinguished according to different levels of Security Council involvement. At the most basic, the Security Council can be called to merely ‘verify’ national elections. National authorities remain in charge and the United Nations supervises the legitimacy of the electoral process and provides technical assistance. Peacekeepers under Security Council supervision may be asked, for example, to ensure the security of electoral monitors, transport electoral materials and conduct limited monitoring themselves.109 The Security Council has instigated such supervision

103 G Fox, ‘Multinational Election Monitoring:  Advancing International Law on the High Wire’ (1994) 18 Fordham International Law Journal 1658, 1661. 104 S/​RES/​435 (1978). 105 In 1991, the Security Council, in its resolution 696 (1991), extended the mandate of the United Nations Angola Verification Mission (UNAVEM I, thereafter UNAVEM II) to include the observation and verification of legislative and presidential elections following the comprehensive peace agreement between the Angolan government and the UNITA rebels. 106 See generally Y Beigbeder, International Monitoring of Plebiscites, Referenda and National Elections: Self-​ Determination and Transition to Democracy, vol 32 (Martinus Nijhoff Publishers, 1994). The General Assembly is the other organ which can grant monitoring mandates. 107 See M Satterthwaite, ‘Human Rights Monitoring, Elections Monitoring, and Electoral Assistance as Preventive Measures’ (1997) 30 New York University Journal of International Law and Politics 709. 108 The ‘acordos de paz’ in the case of Angola, the Paris Agreements in the case of Cambodia, for example. 109 S/​RES/​1201 (1998).

68  Frédéric Mégret in Nicaragua,110 El Salvador,111 Mozambique,112 Liberia,113 and the Central African Republic.114 The most ambitious ‘major electoral missions’115 involve the UN taking over what would otherwise have been the role of national authorities. The Security Council’s involvement in Cambodia, for example, was particularly noteworthy since the UN not only monitored but actually organized the elections itself, deploying unprecedented energies to register voters and even taking over key Cambodian ministries in an effort to educate the population about the elections.116 Similarly ambitious endeavours include the United Nations Transitional Authority in Eastern Slavonia, Baranja and Western Sirmium (UNTAES) which was requested to organize elections for all local government bodies in April 1997 in cooperation with Croatian authorities. UNMIK117 and UNTAET,118 the international administrations created by the Security Council to administer Kosovo and East-​Timor, have also been tasked to organize elections which they have supervised in their entirety. Electoral missions can raise considerable technical/​political difficulties that implicate human rights. The UN Mission for the Referendum in Western Sahara (MINURSO119), for example, was confronted with the question of who should be allowed to register in that territory for the purposes of the referendum, a complex question given the nomadic character of many of the populations involved. These difficulties are only likely to be made worse in the absence of cooperation by the relevant parties, arguably the single biggest threat to success of even Security Council backed peace-​building. UNTAC’s work, for instance, was considerably hampered by Khmer Rouge refusal to join the elections and general harassment of UNTAC officials. Sometimes the level of disagreement can reach such a level that the elections have to be postponed indefinitely as with MINURSO which was supposed to launch the referendum in 1992, but because of persistent inability to agree on the modalities of the vote has not to date accomplished its mission.

110 This was in the context of the United Nations Observer Group in Central America (ONUCA), established pursuant to General Assembly resolution 644 (1989). 111 A special Electoral Division (S/​RES/​832 (1993)) was added to ONUSAL (S/​RES/​693 (1991)) by the Security Council in 1993 to observe a general election in 1994. 112 The United Nations Operation in Mozambique (ONUMOZ), established by S/​RES/​797 (1992), provided, among others, electoral assistance for the 1994 parliamentary and presidential elections; see also The United Nations and Mozambique, 1992–​1995, The United Nations Blue Book Series, Volume V (1995). 113 The United Nations Observer Mission in Liberia (UNOMIL), established by S/​RES/​866 (1993), originally to help implement various peace agreements, took part in the monitoring and verification of presidential elections held in July 1997, pursuant to S/​RES/​1020 (1995). 114 See especially the monitoring of successive legislative and presidential elections in the context of the United Nations Mission in the Central African Republic (MINURCA). S/​RES/​1182 (1998); S/​RES/​1201 (1998); S/​RES/​ 1230 (1999), par 9. 115 This is the terminology generally in use within the Electoral Assistance Division of the Political Affairs Department of the UN Secretariat. 116 In the context of the United Nations Transitional Authority in Cambodia (UNTAC), established by S/​RES/​ 745 (1992); see also The United Nations and Cambodia, 1991-​1995, United Nations Blue Book Series, Volume II (1995). 117 S/​RES/​1244 (1999) (par 11(c)). 118 S/​RES/​1338 (2001). 119 S/​RES/​690 (1991).

The Security Council  69 The success of Security Council sponsored election monitoring has varied. One minimal condition for success, once an election has effectively been held, seems to be that the parties to the elections are basically committed to accept the outcome. Here Angola stands as the most spectacular failure, with conflict resuming and raging for years after UNITA refused to accept the results of the election. This is not to say that there have not been some more encouraging successes, and indeed UNTAC was hailed as an extremely positive precedent.120 The imprimatur of the United Nations, together with the approval of many non-​governmental bodies, are generally significant factors in the acceptance of the results. It goes without saying, however, that successful elections are no guarantee of respect for human rights, and most states where the Security Council has held elections could be considered, even several years later, to suffer from significant democratic deficiencies.

(b)  Human rights promotion and protection Although it is by no means the only organ to do so in post-​conflict situations or the one that has done so most prominently, the Security Council has also gone beyond simple election monitoring by seeking to strengthen respect for human rights specifically in the course of various interventions. This is a type of mission that remains both new and limited for an organ that is above all concerned with international peace and security. The Council, either by itself or by explicitly supporting initiatives by the Secretary General or the High Commissioner for Human Rights, aimed at integrating human rights to existing peace-​operations, is increasingly active in the field. Some of the more ambitious human rights operations occurred in the early 1990s (ONUSAL, UNTAC) often to be followed by more watered-​down operations, but a certain trend to the increased integration of human rights is discernible. Human rights initiatives may be undertaken as part of peacekeeping operations,121 but are most likely to form part of the civilian component of peace-​building initiatives, once the minimal conditions of law and order have been restored. Human rights mandates may be given to a mission from the outset (eg, ONUSAL, BONUCA) or added to already existing peace operations when the need is felt (eg, UNOMIL, UNMOT, UNSMA). They often derive their legitimacy from specific mentions in peace agreements.122 Although they may cover only part of a territory,123 they most often extend to its entirety. The type of human rights tasks involved is likely to evolve rapidly depending on the situation on the ground. ONUSAL in El Salvador, for example, 120 N Vu, ‘The Holding of Free and Fair Elections in Cambodia:  The Achievement of the United Nations’ Impossible Mission’ (1994) 16 Michigan Journal of International Law 1177. 121 UNPROFOR, for example, had a role in monitoring human rights long before any peace agreement. 122 The parties to the Dayton agreement, for example, ‘request[ed] that the United Nations establish by a decision of the Security Council, as a UNCIVPOL operation, a UN International Police Task Force (IPTF)’ (Dayton Agreement, Annex 11, Article2). 123 In Bosnia, for example, the United Nations Protected Areas were targeted for special human rights protection and UNPROFOR’s duties there went beyond those it exercised in the rest of the country.

70  Frédéric Mégret started-​off as a monitoring mission but soon extended its role to providing assistance in institutional reform. The United Nations Mission in Haiti (UNMIH),124 which began with a few observers, eventually took part in a much wider range of humanitarian and human rights activities designed to reinforce Haitian democracy.125 UNOMIL moved from being asked to ‘report on any major violations of international humanitarian law’126 to being in charge of investigating human rights abuses.127 As was the case for electoral missions, the dividing line seems to be between those missions where the UN is essentially assisting an already existing government, and those where it takes over the functions of government altogether. At the most basic, peace-​building operations may have monitoring or reporting roles, and it is often thought that the mere presence of human rights monitors may sometimes marginally reduce governmental conduct prejudicial to human rights. Monitoring and reporting are of course partly designed for institutional use and are an integral part of the Security Council’s appreciation of an evolving situation. Hence UNPROFOR became in itself a key element of documentation of human rights violations by the various parties to the Bosnian conflict. Some reports, however, may also be forwarded to interested parties domestically in an effort to improve human rights performance. Technical assistance within a peacekeeping mission generally consists in advising appropriate authorities (government, ministries). In exceptional circumstances, however, the UN may be asked to take the reform of an entire sector of the state apparatus in its own hands. In Haiti, for example, the Security Council deployed hundreds of United Nations Police Monitors to ‘provide guidance and training to all levels of the Haitian police’,128 alongside a smaller number of ‘military trainers’ who worked to modernize the Haitian armed forces by providing non-​combat instruction. Similarly, the International Police Task Force (IPTF) established by the Security Council in Bosnia129 had a wide-​ ranging mandate to train police personnel.130 Most peace-​building missions have been engaged in training and information campaigns directed at specific categories of the population (lawyers, mayors, students, armed forces), occasionally through the media. UNTAC human rights officers, for example, taught courses at Phnom Penh University and developed human rights curricula for primary and secondary schools. The particular focus of peace-​ building missions varies depending on local circumstances and the type of mission. It may be general, as when UNTAC was asked to ‘foster . . . an environment in which respect for human rights shall be ensured’,131 but is most likely to be specific and deal with a particular type of rights or government 124 Established by S/​RES/​867 (1993). 125 See especially UNMIH’s joint action with the Haitian government, the Friends of the Secretary General for Haiti, and the International Civilian Mission in Haiti (MICIVIH—​together with the Organisation of American States); see S/​RES/​1212 (1998). 126 S/​RES/​866 (1993); what was exceptional even then, however, was that it was the first UN peacekeeping operation undertaken in co-​operation with a pre-​existing peacekeeping force deployed by another organisation, in this case ECOWAS. 127 S/​RES/​1020 (1995). 128 S/​RES/​867 (1993), par 3. 129 S/​RES/​1035 (1995). 130 Dayton Agreement, Annex 11, Article 2. 131 Agreement on a Comprehensive Political Settlement on the Cambodia Conflict, Article 16.

The Security Council  71 function. The police and the judicial system tend to be primary areas of work, sometimes alongside the prison system. There is no single institutional formula for the carrying-​out of human rights tasks. Typically a human rights ‘component’ (UNTAC), ‘unit’ (UNAVEM III, UNSMA) or ‘division’ (MONUA) may be part of the set-​up. Some peace-​building missions have received extensive powers to fulfil their human rights mandate. ONUSAL, for example, had the right to receive communications concerning human rights violations, visit any place or establishment freely and without notice, and hold meetings anywhere on the territory of El Salvador. Strong relations with local human rights groups and the capacity to work with them are generally considered a key part of the success of peace-​building. Some of the more developed human rights initiatives have included structures to deal with human rights complaints. UNTAC, for example, examined more than 1,300 human rights violations complaints and was at one point endowed with a U.N. Special Prosecutor’s office with the power to issue arrest warrants to be carried out by U.N. police. UNMIK has stood out by creating an ombudsman post with wide-​ranging powers (such as a ‘complete, unimpeded, and immediate access to any person, place, or information upon his or her request’) to investigate human rights abuses.132 A special situation arises in cases of Security-​ Council mandated international administrations, such as were created in Kosovo (UNMIK) and East-​Timor (UNTAET). Here, the UN is no longer simply assisting governments but takes over sovereign authority during an interim period following a state collapse or power vacuum. As regards Kosovo for example, the main responsibilities of UNMIK included, in addition to the promotion and protection of human rights specifically, the provision and running of a basic civilian administration, the promotion of substantial autonomy and self-​government, the facilitation of a political process to determine Kosovo’s future political status, the support of the reconstruction of key infrastructure, the maintenance of civil law and order, and the assurance of the safe and unimpeded return of all refugees and displaced persons into Kosovo.133 When the UN takes over essential sectors of government, it becomes unhelpful, as in traditional peace-​building operations, to speak of separate human rights initiatives. In a sense, every activity undertaken by the international administration will have an impact on the enjoyment of human rights, which raises issues of UN accountability (see below). The success of human rights as a part of peace-​building missions varies, but seems to depend closely on the level of security on the ground and the cooperation of the ­government or parties concerned. UNTAC134 and ONUSAL135 have been widely held to be precedent-​setting successes. Similarly, the mission in Angola is considered to have contributed significantly to the promotion of a ‘human rights culture’ in the country.136 132 See Chapter VI of the Rambouillet Agreement, Interim Agreement for Peace and Self-​Government in Kosovo and the ensuing UNMIK Regulation 038. 133 S/​RES/​1244 (1999) at par 11. For UNTAET’s similar mandate in East-​Timor, see S/​RES/​1272 (1999). 134 T Findlay, Cambodia: The Legacy and Lessons of UNTAC (Oxford University Press, 1995). 135 R Brody, ‘The United Nations and Human Rights in El Salvador’s Negotiated Revolution Recent Developments’ (1995) 8 Harvard Human Rights Journal 153. 136 See, among others, S/​1997/​115 and S/​1997/​438.

72  Frédéric Mégret Conversely, UNMIH’s work in Haiti was thwarted by constant local opposition that eventually led to its expulsion and an international intervention. Those human rights activities that were undertaken in Bosnia by UNPROFOR also suffered from the prevalent context of violence. There is also evidence that political imperatives may at times conflict with optimal human rights action. It has been deplored, for example, that the Secretary General’s Special representative in Cambodia often failed to take the ‘corrective’ action it was allowed to take when cases of gross human rights abuse were presented to him, under the guise of protecting the electoral process. In addition to peacekeeping operations incorporating a discreet human rights component, a distinct challenge has emerged in relation to the question of what peacekeepers should do when confronted with threats and violence to civilians. The human rights component of peace operations falls very much within the traditional consensual model of peace keeping; but what if civilians are being attacked by the state or non-​state actors in clear view of the UN? To be clear, this is distinct from the broad humanitarian motivation for creating peacekeeping missions in the first place or the issue of R2P, and has more to do with the extent of obligations that weigh on peace operations at all times, independently of their general mandate.137 The theme of ‘protection of civilians’ within Security Council mandated peace operations emerged as a reaction to the failures of UNPROFOR and UNAMIR, even though they were already on the ground, to effectively intervene to stop massacres and genocide. The Resolution creating UNAMSIL in Sierra Leone was one of the first to use quite open language authorizing the force to ‘afford protection to civilians under imminent threat of physical violence’.138 The MONUC resolution followed suit, authorizing the mission to ‘take the necessary action, in the areas of deployment of its infantry battalions and as it deems it within its capabilities, to . . . protect civilians under imminent threat of physical violence’.139 This part of the mandate has become increasingly central to various missions’ role and has become part of an emerging doctrine of ‘robust peacekeeping’.140 Interestingly, it has been argued that it potentially stretches the notion of peacekeeping to breaking point,141 an indication that the forceful protection of civilians is an activity that will be hard to pursue merely ‘on the side’ and that may very well precipitate a redefinition of the essence of peacekeeping.

(c)  Creation of and relationship with international criminal tribunals An issue which the Security Council has been confronted with increasingly during the 1990s and which can be seen as the ultimate outgrowth of its peace-​building activities, 137 F Mégret, ‘Between R2P and the ICC: “Robust Peacekeeping” and the Quest for Civilian Protection’ (2015) 26 Criminal Law Forum 101. 138 S/​RES/​1289 (7 February 2000) para 10(e). 139 S/​RES/​1291 (24 February 2000). 140 K Nsia-​Pepra, UN Robust Peacekeeping: Civilian Protection in Violent Civil Wars (Springer, 2016). 141 T Tardy, ‘A Critique of Robust Peacekeeping in Contemporary Peace Operations’ (2011) 18 International Peacekeeping 152.

The Security Council  73 is the best manner to deal with legacies of gross human rights violations following periods of conflict or civil strife. The types of episodes the Council has had to deal with are ones where a simple reform of the judicial and police sectors will in most cases not do, and where important decisions have to be taken regarding justice and reconciliation. A clear tension runs throughout the Security’s decisions on those matters. On the one hand, the Security Council has traditionally been little inclined to take into account issues of transitional justice. The prevailing culture of international peace and security is one which emphasized order and stability, rather than idealistic notions of justice. In fact, the realpolitik case against accountability is that it runs a very real risk of bringing about a renewal of conflict. On the other hand, the Security Council seems to have become more receptive, especially in a context where most of its other initiatives to solve certain conflicts were failing, to how it might promote transitions. Some Security Council members have become increasingly sensitive, particularly since the 1990s, to the idea that an essential component is lost if, when seeking to create conditions of international peace and security, the Council is oblivious to the impact that justice can have on the ground. The Security Council’s attitude to transitional justice issues thus seems to have constantly oscillated between these poles, from the early 90s to the present. The Council began the 1990s by giving the impression that criminal prosecutions for grave violations of human rights were not an indispensable feature of restoring international peace and security. The Mexico agreement which put an end to the Salvadorian conflict, although it specified that this was ‘without prejudice to the obligations incumbent on the Salvadorian courts to solve such cases and impose the appropriate penalties on the culprits,’ created a Truth Commission with members nominated by the United Nations as the essential means to deal with such violations. The Truth Commission eventually only endorsed justice ambiguously, urging that in light of the ‘insurmountable difficulties’ it was facing, the institutional reform of the Salvadorian justice system should be given priority.142 A general amnesty was accordingly adopted in 1993,143 but the Security Council, which had otherwise been heavily involved in finding an outcome to the conflict, never went beyond deploring the lack of implementation of the Commission’s recommendation.144 That legacy would continue to plague El Salvador’s human rights record.145 This probably made the decisions to create the International Criminal Tribunal for the Former-​Yugoslavia146 and the International Criminal Tribunal for Rwanda147 to investigate and punish what were, essentially, gross abuses of human rights all the more remarkable. The creation of the Tribunals came after a number of resolutions and presidential statements where the Council made it clear that those engaging in 142 Report of the UN Truth Commission on Salvador (S/​25500, pp 177–​9; 181–​2; 185). 143 Ley de Amnistía, Decreto Legislativo número 486, Diario Oficial número 56, Tomo 318, del 22 de marzo de 1993. 144 S/​RES/​792 (1992). 145 See, in particular, Human Rights Committee, Comments on El Salvador, CCPR/​C/​79/​Add.34 (1994). 146 S/​RES/​827 (1993). 147 S/​RES/​955 (1994).

74  Frédéric Mégret grave violations of international humanitarian law would be held liable.148 The creation of the Tribunals was in itself a bold institutional move since Chapter VII of the Charter under which the Council was acting did not explicitly authorize the creation of subsidiary jurisdictional organs, and both a General Assembly Resolution or a treaty could have been chosen as alternative paths.149 By linking, as has already been seen, international crimes to a breach of international peace and security, and framing the creation of the tribunals as a measure to remedy that breach, the Council nonetheless took the initiative. The tribunals in due course confirmed the legality of their creation.150 Their existence thus seemed to demonstrate that international criminal justice could become an integral part of the Security Council’s multi-​facetted interventions in favour of peace, even at the cost of straining accepted understandings of the Charter. The Tribunals have similar mandates allowing them to try those responsible for the gravest international crimes, namely genocide, crimes against humanity and war crimes. Although this is beyond the scope of this study, both have been sources of human rights jurisprudence (especially, but not only, on the right to a fair trial) in their own right.151 Also notable in this respect is the creation by the Security Council of various investigative commissions whose mandate has been focused on establishing responsibilities for humanitarian law and human rights violations as well as the commission of atrocities. The Panel of Experts on Sudan is an example of such a commission.152 Subsequent experience of course has shown that the creation by the Security Council of an institution devoted to human rights enforcement does not guarantee that the Security Council itself or its members will cooperate with it fully. Indeed, aside from the persistent problem of lack of cooperation by some of the states whose nationals were indicted, it was a long time before NATO, despite its clear obligations to do so, began to act upon the ICTY’s arrest warrants by arresting suspected war criminals. The Tribunals moreover, have at times run into considerable administrative difficulties,153 and have been criticized for their remoteness from the crimes they are supposed to judge.154 Notwithstanding these criticisms, which tend to be focused on the tribunals’ role rather than specifically the Security Council’s part in supporting them, it remains a remarkable fact that both Tribunals have prosecuted so many of those principally 148 The ‘need to bring to justice, in an appropriate manner, individuals who incite or cause violence against civilians’ is something which has been frequently recalled, for example, by the president of the Security Council. See S/​PRST/​1999/​6. 149 S/​25704, par  18-​30. 150 See ICTY, Prosecutor v Dusko Tadic a/​k/​a ‘Dule’, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995. ICTR, Prosecutor v Kanyabashi, Decision on Jurisdiction, 10 August 1995. 151 See Anne-​Marie La Rosa, ‘A Tremendous Challenge for the International Criminal Tribunals: Reconciling the Requirements of International Humanitarian Law with Those of Fair Trial’ (1997) 37 International Review of the Red Cross Archive 635. 152 SC/​RES/​1591. 153 That criticism remains true particularly of the ICTR. See International Crisis Group, International Criminal Tribunal for Rwanda: Justice Delayed, Report, 7 June 2001. 154 J Alvarez, ‘Crimes of States/​Crimes of Hate: Lessons from Rwanda’ (1999) 24 Yale Journal of International Law 365.

The Security Council  75 responsible for the crimes committed in the former Yugoslavia and Rwanda. Indeed the irony is that while they may not have reached their proclaimed goal of re-​establishing international peace and security, they may end up having a lasting influence on human rights, in and beyond the territories over which they have jurisdiction. The Security Council’s apparent embrace of international criminal justice as a tool to deal with threats to international peace and security, however, was never an unambiguous affair. In the last years of the ad hoc tribunals’ work, the Council has shown increased impatience with the slow pace of progress and put considerable pressure on the tribunals to come up with a completion strategy.155 Even as it created the international criminal tribunals, moreover, the Security Council was endorsing amnesties in countries where it was involved despite evidence that grave human rights violations had been committed. In the case of Cambodia, for example, despite the genocide that was committed in that country, the Security Council did not object to the Paris agreement’s discreet approach to the issue of punishment.156 In Haiti, where grave human rights violations had been committed, the Security Council endorsed the Governor’s Island agreement157 followed by the New York Pact158 even though these specifically encouraged amnesty. The Council subsequently simply ignored the Truth Commission’s Report.159 In Angola, the Council welcomed the Lusaka Accords without reservations, even though these notably urged all Angolans ‘to forgive and forget the offences committed in the course of the Angolan conflict’ and went on to require a general amnesty.160 Two explanations can be adduced to explain why in some cases the Security Council chose to intervene judicially, and in others declined to do so. One is that in some of the above cases, the Security Council was not acting under Chapter VII, and therefore may have lacked the sense of ongoing urgency that eventually prompted it to take a more proactive stance in the Former-​Yugoslavia and Rwanda to deter violations. Not all human rights violations in themselves constitute threats to international peace and security. But clearly in some cases (eg, Haiti) the Security Council was acting under Chapter VII even as it went on to endorse amnesties. This suggests that even in what is otherwise a Chapter VII situation, not all grave violations of human rights are considered to warrant a strong Security Council stance against impunity. Specifically, it would seem that the Council’s ‘grave concern’ over the ‘continuing escalation . . . of systematic violations of civil liberties’ in Haiti161 would have to be distinguished from the grave violations of international humanitarian law, genocide or crimes against humanity which the Security Council feared or determined had occurred in Rwanda and the Former-​Yugoslavia. At any rate, it remains difficult to determine the Council’s 155 D Mundis, ‘The Judicial Effects of the ‘Completion Strategies’ on the Ad Hoc International Criminal Tribunals’ (2005) 99 American Journal of International Law 142. 156 S/​RES/​880 (1993). 157 S/​26063, S/​RES/​940 861 (1993). 158 S/​26297 (Annex, Article 4(ii)). S/​RES/​940 (1994). 159 Si m pa rele: rapport de la Commission nationale Vérité et justice (Haïti solidarité internationale, 1997). 160 S/​1994/​1441 (1994), p 27. 161 S/​RES/​940/​1994.

76  Frédéric Mégret precise intervention threshold when it comes to international justice, or even to posit that such a normative threshold exists outside the circumstantial and evolving politics of its members.162 These tensions were bound to come to the fore with the question of Sierra Leone. This was a clear-​cut case of a threat to international peace and security and a situation where particularly horrendous violations of human rights had been committed throughout a decade of war. Indeed, the Security Council had itself at one point ‘urge[ed] the appropriate authorities to investigate all allegations of [grave human rights) violations with a view to bringing the perpetrators to justice.’163 Yet by the time the Lomé agreements which anticipated an amnesty for all those involved the conflict had been signed, the Security Council’s stance was characteristically ambiguous. On the one hand, the Council did seem to include a token reference to the ‘urgent need . . . to foster accountability and respect for human rights in Sierra Leone’ and took note of the Secretary General’s qualms164 about the issue of amnesty.165 On the other hand, it stressed the equally urgent need ‘to promote peace and international reconciliation,’166 and seemed to welcome the Lomé accords unreservedly.167 This could only be seen as a discreet endorsement of amnesty and was treated as such by human rights NGOs, which soon criticized the Council for its failure to encourage punishment of those responsible for atrocities. This eventually prompted the Council to change its position. In resolution 1215, it ‘reaffirmed’ what had been the basis of the creation of the ad hoc tribunals, namely that ‘persons who commit or authorize serious violations of international humanitarian law are individually responsible and accountable for those violations and that the international community will exert every effort to bring those responsible to justice’ and that ‘a credible system of justice and accountability . . . would contribute to the restoration and maintenance of peace’. Rather than create a new subsidiary organ such as an international criminal tribunal, the Security Council proposed the creation of an ‘independent special court’ whose details were worked out by the Secretary General and the Sierra Leone authorities168 and subsequently endorsed by the Council.169 This ‘treaty-​based sui-​ generis court of mixed jurisdiction and composition’170 as the Secretary General 162 After all, the Security Council has itself noted that in the case of Haiti, the ‘violations of civil liberties’ in question involved ‘numerous instances of extra-​judicial killings, arbitrary arrests, illegal detentions, abductions, rape and enforced disappearances, the continued denial of freedom of expression, and the impunity with which armed civilians have been able to operate and continue operating’. S/​RES/​917 (1994). 163 S/​RES/​1231 (1999). 164 The Secretary-​General had instructed his Special Representative to enter a reservation stating explicitly that ‘the amnesty cannot cover international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law’ and pointed out to the Council that an amnesty would be ‘difficult to reconcile with the goal of ending the culture of impunity, which inspired the creation of the ad hoc tribunals S/​1999/​836 (1999), par 54. 165 S/​RES/​1260 (1999). 166 Ibid. 167 See S/​RES/​1270 (1999), par 17 and S/​RES/​1289 (1999), par 17, where the Security Council urges the Sierra Leone government to establish the Truth and Reconciliation Commission, the Human Rights Commission and the Commission for the Consolidation of Peace established under the Lomé Agreement. 168 S/​2000/​915. 169 See S/​2000/​1234, S/​2001/​40, and S/​2001/​95. 170 Ibid.

The Security Council  77 described it, had jurisdiction over ‘the persons most responsible’ of ‘crimes against humanity, war crimes and other serious violations of international humanitarian law,’ regardless of the Lomé amnesty, and was composed of both ‘international’ and Sierra Leonean judges. The special Court is not faultless and its limited temporal jurisdiction has been criticized,171 but its creation did seem to inaugurate a middle-​way between purely domestic justice and international criminal tribunals that was simultaneously wary of amnesties. The issue of what the Security Council’s attitude to problems of accountability for international crimes should be, however, eventually resurfaced through an unexpected route. Early on in the 1990s, the old idea of establishing an International Criminal Court had been rekindled, and throughout the decade significant efforts were launched to create such a Court, culminating with its creation in 1998 and entry into force in 2001. Whereas the ad hoc tribunals had been very much creations of the Security Council, the idea of an ICC, although often emerging from UN quarters (such as the International Law Commission), was by no means a Security Council initiative, and the Council as such was hardly involved in the drafting of the Statute. One of the key questions which drafters of the Statute had to confront, however, was what the relationship of the ICC to the Security Council should be. This was particularly important in the case of a crime such as aggression which seemed to have a very close bearing on the issue of threats and breaches to international peace and security. But it was more generally important precisely because the drafters of the Statute (which included most UN members) could not fail to see that there might be a tension between the demands of a permanent system of international criminal justice and the Security Council’s historic and Charter-​mandated responsibility to ensure international peace and security. Even though the Security Council was not involved, qua Council, in the drafting of the Statute, most states had a view on what the ICC-​SC relationship should be, not least the Permanent Members who arguably stood most to lose from a strong ICC encroaching on the Council’s prerogatives. The negotiations leading to Rome and the subsequent practice of both the Council and the Court are therefore interesting manifestations of how the Council’s role has been perceived by the international community. The drafters of the Rome Statute which created the ICC could have elected not to deal with the issue explicitly, leaving it to the Council and Court to develop their own practice on the basis of the default rules of the international legal order. Presumably this would have given the Security Council the upper hand, on the basis of the superiority of the UN Charter to all treaties concluded subsequent to it.172 More was at work, however, in the lead to the adoption of the Rome Statute, and clearly some states sought this as an opportunity to redefine more generally and fundamentally the relationship between international peace and security, on the one hand, and international criminal 171 See Amnesty International, SIERRA LEONE, Renewed commitment needed to end impunity, ai-​index AFR 51/​007/​2001 24/​09/​2001. 172 See Article 103 of the UN Charter.

78  Frédéric Mégret justice on the other. Whether it was truly open for the states assembled in Rome and the parties to the ICC Statute, which only represent a portion (albeit an increasingly significant one) of the international community, to redefine the prerogatives of the Council indirectly through the adoption of the Rome Statute is an interesting question of supra-​ national constitutionalism. At any rate, states in Rome successfully managed to put the Council before its responsibilities, and the Council’s lack of strong protest may suggest partial acquiescence. The resulting balance is an interesting one. As seen through the lens of the Rome Statute, the Security Council’s role, when it comes to fundamental issues of justice and rights is both that of an indispensable facilitator, and of a potentially significant obstacle. The Council has in practice stood for a good measure of both. On the constructive side, the Rome Statute formalizes the possibility of harnessing the Council’s power to achieve international criminal justice. Under Article 13 of the Statute, the Council may refer ‘a situation in which one or more of such crimes appears to have been committed’ to the ICC Prosecutor. In this scenario, the state upon whose territory the ‘situation’ is occurring need not be a state party to the Rome Statute. To the extent that the Council is convinced the commission of an international crime is also a threat to international peace and security, therefore, it can bypass what would otherwise be one of the main limits of the ICC, namely its inability to prosecute crimes committed on the territory or by nationals of non-​state parties. It seemed unlikely initially that the Council would avail itself of that possibility, given that three out of the five permanent members of the Council were not party to the Rome Statute (China, Russia, US), had no intention of becoming party to it and, in the case of at least one (the US), was otherwise conducting a vigorous campaign to undermine the Court. Yet in 2005, following adjustments in US policy, the Council referred the situation in the Sudanese region of Darfur to the Court. As has already been emphasized, Darfur was the scene of the commission of many atrocities, which the Council had already determined amounted to a threat to international peace and security. The referral was seen as a victory of policy pragmatism over ideology. US foreign policy had been torn between its strong stance in defence of victims in Sudan (suffering from at least crimes against humanity), and its vigorous opposition to the Court. It is testimony to how the fortunes of international peace and security and international criminal justice have become intertwined that this unexpected move was at least conceptually so natural. For a while, the US suggestion had been that a separate tribunal should be created for Darfur (or the mandate of the ICTR extended), but this was a somewhat extravagant suggestion in view of the existence of the ICC. Of course, the fact that a situation has been referred to the Council hardly solved the court’s many dilemmas, but it did provide the prosecutor with an added legitimacy, especially in a context where international criminal justice may in other cases be increasingly accused of compromising international peace and security (Uganda being a case in point). Another considerable advantage of Security Council referral is that, ideally, it will provide a stronger backing than the Assembly of state parties (the ICC’s governing

The Security Council  79 body), since the Security Council is in that hypothesis the body that is to deal with non-​cooperating states.173 In the case of Darfur, however, it seems that having referred the situation to the Court, the Council was subsequently less interested in following up with pressure on Sudan to cooperate. Although the Council can have a positive role in favour of international criminal justice it can also be a significant hindrance to it. In the run-​up to the Rome conference, permanent Security Council members, even whilst accepting some of the fundamental orientations of the ICC, felt that pursuing accountability vigorously might in some circumstances be antithetical to international peace and security, and complicate the Council’s mandate. The Council was thus granted the power to defer prosecutions for a renewable period of twelve months.174 This was an improvement on previous suggestions that the Council could freeze prosecutions indefinitely, or even that no prosecution could be launched without a prior Council green light. But one can see how it might largely upset the logic of international criminal justice, if it were to be periodically held up at the Council’s whim. It is true that it may have seemed unlikely in 1998 that the Council would muster the sort of unity that would lead all five of its permanent members (which includes two states—​the UK and France—​which are officially keen supporters of the Court) to vote (or at least abstain from vetoing) a deferral. Nonetheless, it was not long after the Statute entered into force that the Council availed itself of its deferral power, in circumstances that had been largely unforeseen by the Statute drafters. On 12 July 2002, the Council voted Resolution 1422 (2002) which prevented the ICC from exercising its jurisdiction over persons involved in UN peacekeeping operations if they were not nationals of state parties to the ICC. The resolution was only voted as a result of heavy-​handed pressure from the US, insistent that no American soldier should ever be prosecuted by the ICC (something which might happen in theory if they committed crimes in the territory of a state party). It occurred at a time when the Prosecutor had not shown the slightest sign of investigating peacekeepers, a possibility that seemed remote in the best of cases. More worryingly, it led to blatant political bullying, as the US threatened to veto the renewal of the UN Mission in Bosnia and Herzegovina (UNMIBH) and all other UN peace-​keeping operations. A year later, the deferral was renewed for another year by resolution 1487. So artificial were resolutions 1422 and 1487, that after two deferrals and faced with momentous opposition at the Council (several states had threatened to abstain making a majority unlikely), the US administration abandoned its efforts to obtain a third deferral, and the practice was discontinued. But in 2005 (resolution 1593), the US obtained anew, in exchange for agreeing to a referral of the Darfur situation to the ICC, that nationals of non-​states parties operating in Sudan as part of a Security Council authorized mission would be immune from the Court’s jurisdiction (even though no US troops were involved).

173 174

See Article 87.5 b) and 87.5.7 of the Rome Statute. Article 16 of the Rome Statute.

80  Frédéric Mégret It is quite likely that resolutions 1422 and 1487 went beyond the letter and spirit of the ICC Statute.175 Both claimed to be acting under Chapter VII (as required by the ICC), but neither set out a specific threat to international peace and security, merely stating that ‘it is in the interests of international peace and security to facilitate Member states’ ability to contribute to operations established or authorised by the Security Council’. This was simply another way of saying that international peace and security should really trump international criminal justice, a flagrant and somewhat pathetic reversal of what had otherwise seemed to be the Council’s consistent position since the 90s. As to resolution 1593, it is very unlikely that the Rome Statute allows the Security Council to simultaneously refer a situation (Darfur) and exclude certain individual cases (peacekeepers) from it. Finally, the question of the crime of aggression and the relationship between the ICC and the Council eventually caught up with the Council. Aggression is not as such part of the explicit mandate of the Security Council but, as the quintessential breach of international peace and security, it obviously falls within its broad prerogatives. Although one may think of aggression as mostly a crime between states, few would doubt today that it has significant human rights implications.176 The crime of aggression was included within the Rome Statute but subject to further agreement about its definition and with an explicit reference to the fact that this had to be in a way ‘consistent with the relevant provisions of the Charter of the United Nations.’ That agreement was eventually forthcoming in 2010, following the Kampala Review Conference. The current regime anticipates that jurisdiction may be exercised over aggression either when the Security Council refers the issue, or when a state does so. The former possibility is obviously not problematic and would seem to fully respect Security Council powers. The latter possibility is more tricky because it raises the possibility that the Court would effectively ‘compete’ with the Council over the determination of what counts as aggression. This is why the Prosecutor is to ‘first ascertain whether the Security Council has made a determination of an act of aggression committed by the state concerned.’ In cases ‘[w]‌here the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression’. If ‘no such determination is made within six months after the date of notification, the Prosecutor may proceed with the investigation’. In addition, ‘A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute’. As can be seen, this regime seeks to find a compromise between the role of the Security Council and the emerging role of the ICC, among the many possible regimes to coordinate both.177 The Court cannot be held entirely hostage to a failure by the 175 N Jain, ‘A Separate Law for Peacekeepers: The Clash between the Security Council and the International Criminal Court’ (2005) 16 European Journal of International Law 239. 176 F Mégret, ‘What Is the Specific Evil of Aggression?’ in C Kress and S Barriga (eds), The Crime of Aggression: A Commentary (Cambridge University Press, 2016). 177 M Stein, ‘The Security Council, the International Criminal Court, and the Crime of Aggression:  How Exclusive Is the Security Council’s Power to Determine Aggression’ (2005) 16 Indiana International & Comparative Law Review 1.

The Security Council  81 Council to determine that aggression is ongoing, but nor can the Prosecutor rush ahead with an investigation without duly deferring to Council prerogatives. What this compromise underscores is the power of nascent international criminal justice institutions, themselves the distant by-​product of early Security Council initiatives, to acquire a certain independence and, in turn, at least somewhat constrain Council powers.

1.4  Human rights as responsibility: holding the Security Council accountable to human rights standards One implicit assumption underlying the work of the Security Council in human rights is that although it could be accused of not doing enough, it could not be suspected of actually violating human rights. International peace and security and human rights were seen as in broad alignment. The last series of issues raised by the Council in relation to human rights, however, is linked to the intriguing but increasingly plausible possibility that, through its actions, the Council may violate human rights. If one were to spin the image of ends and means a little further, one could argue that the issue is whether the Council’s means may not conflict with some of its evolving (and, as we have seen, increasingly human rights-​oriented) ends. Rather than the image of a reluctant intervener for human rights, which has underscored much of the debate in the Council, the image is one of a Council that is only too eager to intervene and exercise its power (indeed, arguably all the more so that it is doing so in the name of human rights),178 with potentially woeful consequences for human rights. With great powers—​and in addition great powers that are used often in particularly sensitive contexts for human rights—​should arguably come great responsibilities. This is a relatively new area which has been the object of little comprehensive study, but it is also quite symptomatic of the evolution of the Council’s role, one in which the Council is increasingly taking decisions that directly affect the rights of human beings. In the traditional view of the Security Council’s action, the Council was, first and foremost, almost exclusively even, dealing with states. That the Council’s actions had some ulterior motive that was less state oriented mattered little, as states served as crucial screens between the Council and populations. In conditions of globalization, however, particularly in a context where the Council is more and more likely to intervene, states or the state is often strikingly absent, opening up spaces where the Council is increasingly having an impact—​and increasingly incapable of pretending it is not having an impact—​directly on human beings, whose rights may as a result be affected. A number of practices linked to peace operations ordered by the Security Council  (SC) (A), embargoes (B), and sanctions in the context of the fight against ­terrorism (C) have highlighted the nature of this evolving problem.

178 F Mégret, ‘ICC, R2P and the Security Council’s Evolving Interventionist Toolkit’ [2011] Finnish Yearbook of International Law.

82  Frédéric Mégret

(a)  Peace keeping and peace enforcement operations Chapter VII of the UN Charter only allows the Security Council to use force if and to the extent necessary. Although some Security Council members’ interpretation of use of force authorization has at times been open to criticism,179 this probably in itself imposes a minimal humanitarian constraint on its action at the level of jus ad bellum by ensuring that the use of force is proportional to the objectives sought. This general proportionality, however, is distinct from the jus in bello question of whether SC ordered operations should respect IHL, an issue that can clearly impact on the capacity of populations to enjoy some of their basic rights. The question arose as early as the Korean war when the Security Council claimed a human rights exception to the repatriation of prisoners,180 but it acquired renewed prominence in the Security-​Council authorized Gulf War when concerns were raised that the allies’ strategic bombing had caused unnecessary civilian casualties.181 The Security Council’s position for a long time was that it was not bound by international humanitarian law as such—​most notably by the Geneva Conventions—​ because it was not a state and could not be considered a party to the conflicts in which it intervened. The UN nonetheless made it clear that it would abide by customary international law as regards the use of force. This meant, typically, that rules relating to peace operations contained a clause referring to need to respect the ‘principles and spirit’ of international humanitarian law. For the rest, however, it was clear from various Status of Force Agreements (SOFAS) that it was troop-​contributing states who remained ultimately responsible for enforcing the laws of war. The UN’s growing intervention in domestic conflicts generated by the end of the Cold War, by blurring the distinction between peace-​keeping and peace-​enforcement missions, has since made it necessary to clarify the precise standing of troops operating under Security Council mandate. Indeed, a number of early incidents in Somalia involving blue helmets raised worries that peace-​keepers might at times commits crimes in violation of international humanitarian and human rights law.182 It was at the behest and under the pressure of the ICRC that the UN agreed to re-​examine its position. A minor turning point came through an unexpected route when the Convention on the Safety of United Nations and Associated personnel which, as its name indicates, was designed primarily to protect peacekeepers, conceded in its Article 20(a) that the Convention did not affect ‘[t]‌he applicability of international humanitarian law 179 One has in mind here the continued small-​scale bombing raids (notably ‘Operation Desert Fox’ in 1998) carried out by US and UK aircraft against Iraq in response to alleged non-​cooperation with the UN weapons inspection scheme which rest on a dubious interpretation of Security Council resolutions. 180 See J Mayda, ‘The Korean Repatriation Problem and International Law’ (1953) 47 American Journal of International Law 414. 181 See Human Rights Watch, Needless Deaths in the Gulf War (1991), 95-​316. A  United Nations survey undertaken after hostilities ended found that most means of modern life support in Iraq had been destroyed or rendered ‘tenuous’, including the supply of food, water, and other necessities S/​22366, 20 March 1991 (Report of Secretary-​General’s mission to assess humanitarian needs). 182 African Rights, Somalia: Human Rights Abuses by the United Nations Forces (1993).

The Security Council  83 and universally recognised standards of human rights as contained in international instruments in relation to the protection of United Nations operations and United Nations and associated personnel or the responsibility of such personnel to respect such law and standards.’ It was another four years and numerous consultations later before the Secretary General finally issued a bulletin on the ‘Observance by United Nations forces of international humanitarian law’183 purporting to make the applicability of international humanitarian law to UN troops unambiguous. Article 1 of the bulletin sets out clearly the applicability of ‘the fundamental principles and rules of international humanitarian law . . . in situations of armed conflict [UN troops] are actively engaged in as combatants, to the extent and for the duration of their engagement’. For the Secretary General this means, notably, that they are applicable not only in ‘enforcement actions’ but also ‘in peacekeeping operations when the use of force is permitted in self-​ defence’. Although the bulletin does not encompass all rules applicable in armed conflict, it does stress the applicability of the most important ones for the purposes of Security Council action, including the principle of the distinction between military and civilian targets, and the need to minimize so-​called collateral damage. The legal status of such a bulletin is of course open to question, but it at least has the merit of binding UN forces internally and will settle for most purposes what had been a long-​ lasting doctrinal controversy, involving sensitive questions about the UN’s role and responsibilities.184 The increased resort to force in the name of humanitarian protection has also resurrected more general concerns about the sort of force that could be used under a Council resolution nominally committed to protecting civilians. Is normal respect for international humanitarian law sufficient185 or is there a separate standard for the use of force, for example in terms of jus ad bellum proportionality, when the Council claims specifically to intervene to protect civilians?186 Following the Libya bombing, a Brazilian initiative labelled as ‘Responsibility Whilst Protecting’ temporarily stressed the importance of the means being in accordance with the ends.187 Another area in which the way force is implemented more generally has been scrutinized is in the context of delegation of various peacekeeping functions. For example, the Council has at times availed itself of Chapter VIII and mandated regional organizations to carry out peacekeeping functions (ECOMOG in Liberia). There have been concerns that such mandates should not allow regional organizations to engage in violations of rights 183 ST/​SGB/​1999/​13, 6 August  1999. 184 M Zwanenburg, ‘The Secretary-​General’s Bulletin on Observance by United Nations Forces of International Humanitarian Law:  A Pyrrhic Victory’ (2000) 39 Military Law and Law of War Review 13; D Shraga, ‘UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations-​ Related Damage’ (2000) 94 American Journal of International Law 406. 185 M Hoffman, ‘Peace-​Enforcement Actions and Humanitarian Law:  Emerging Rules for ‘Interventional Armed Conflict’’ (2000) 82 International Review of the Red Cross 193. 186 F Mégret, ‘Missions Autorisées Par Le Conseil de Sécurité à l’Heure de La R2P: Au-​Delà Du Jus in Bello?’ (2013) 52 Military Law and Law of War Review 205. 187 M Tourinho, O Stuenkel, and S Brockmeier, ‘ “Responsibility While Protecting”:  Reforming R2P Implementation’ (2016) 30 Global Society 134.

84  Frédéric Mégret under Security Council cover.188 On other occasions, more ‘robust’ peacekeeping missions have pursued their mission alongside states and against armed groups, raising concerns that they might become complicit in humanitarian or human rights violations.189 A ‘Human Rights Due Diligence Policy’ was therefore adopted which is supposed to protect the UN from association with governmental armed forces whose record is tainted by atrocities or abuses.190 A distinct question is whether and in what circumstances the Security Council is bound by international human rights law specifically. That the question is even asked may come as a surprise. After all, whereas the UN has no express responsibility under international humanitarian law, it is clearly mandated by its Charter to promote human rights and, as this book suggests, has taken its human rights responsibilities to heart. A certain ambiguity nonetheless remains from both a strictly legal and theoretical perspective. From a legal point of view, one might point out that the UN is not a party nor could it be a party to the main human rights instruments, which although often adopted in its midst, can only be ratified by states. This leaves the customary international law of human rights, however, as something that is applicable notwithstanding lack of specific consent by any actor. From a more theoretical perspective, legitimate questions can be asked about whether, or at least when and how, the UN might violate human rights. Are its duties only to promote human rights, or also to protect and maybe respect them? The ambiguity arises from the fact that human rights, and this bias has only been reinforced by their international legalization, were traditionally understood to apply mostly to sovereigns. In most situations where the UN intervenes, states will be in place that are meant to assume ultimate responsibility for human rights. The question of UN human rights responsibilities is thus part of the broader debate on whether non-​state actors can ever strictly speaking ‘violate’ human rights.191 Of course, the United Nations is not any non-​state actor: it is an international organization (of states) that represents the entire international community and is meant to be an incarnation of its highest aspirations, including in matters of human rights. Within the UN edifice, moreover, the Security Council, notably via its enforcement and peacekeeping operations, is the body that comes closest to exercising quasi-​sovereign functions in at least some contexts. The possibility of using force and the highly binding character of Council resolutions also suggests that the UN cannot claim innocence from the adverse human rights effects (call them violations of rights stricto sensu or not) that result from its actions. Institutionally, moreover, there is something highly problematic about various UN bodies—​including the Council—​being heavily invested in rights promotion, yet oblivious to their own adverse human rights impact. 188 B Nowrojee, ‘Joining Forces:  United Nations and Regional Peacekeeping-​-​Lessons from Liberia Recent Developments’ (1995) 8 Harvard Human Rights Journal 129. 189 C Hunt, ‘All Necessary Means to What Ends? The Unintended Consequences of the ‘Robust Turn’ in UN Peace Operations’ (2017) 24 International Peacekeeping 108. 190 H Aust, ‘The UN Human Rights Due Diligence Policy:  An Effective Mechanism against Complicity of Peacekeeping Forces?’ (2015) 20 Journal of Conflict and Security Law 61. 191 F Megret and F Hoffman, ‘The UN as a Human Rights Violator-​Some Reflections on the United Nations Changing Human Rights Responsibilities’ (2003) 25 Human Rights Quarterly 314.

The Security Council  85 The question had been asked early on in relation to the detention of persons captured in Somalia and other peacekeeping missions192 but it took on a much more radical relevance in the context of Security Council mandated international administrations. In the absence of conflict, international humanitarian law seemed ill-​adapted to international administrations’ large civilian components. Moreover, the extensive character of the administration involved on the ground made the UN behave ‘like a state’ and created legitimate expectations that it would constrain and regulate its action accordingly, by respecting the rights, both individual and collective, of the Kosovars.193 International administrations, under the supervision of the Security Council, have sought to make it clear that all personnel involved in UNTAET and UNMIK should comply with the standards of international human rights law.194 Indeed, UNMIK’s ombudsman195 and subsequently the Human Rights Advisory Panel196 even had jurisdiction over the international administration itself and could receive complaints directed towards the UN’s own human rights performance. It is notable, however, that this attempt to submit a peacekeeping mission to human rights obligations did not come from the Council itself, was often resisted in practice by the mission197 (through the insistence on immunity for UNMIK, for example),198 and largely side lined any role that judicial review might have had199 and for which the ombudsperson was but a poor substitute.200 As a result, many of UNMIK’s policies, from security detentions to adopting ‘legislation’ without assessing its human rights conformity, have proved wanting.201 The ability to engage the responsibility of the UN for Security Council mandated operations, even when based on allegations of failure to respect or implement human rights, remains more generally a sore point in international law. Attempts to hold troop contributing states accountable under the European Convention on Human Rights have failed, on the basis that said troops were under the effective

192 G Hirschmann, ‘UN Peacekeeping and the Protection of Due Process Rights:  Learning How to Protect the Rights of Detainees’ in M Heupel and M Zürn (eds), Protecting the Individual from International Authority (Cambridge University Press, 2017). 193 T Irmscher, ‘The Legal Framework for the Activities of the United Nations Interim Administration Mission in Kosovo: The Charter, Human Rights, and the Law of Occupation’ (2001) 44 German Yearbook of International Law 353. 194 See Articles 2 of Regulation No 1999/​1 on the Authority of the Interim Administration in Kosovo, Unmik/​ reg/​1991/​1, 23 July 1999 and Regulation No 1999/​1 on the Authority of the Transitional Administration in East Timor, Untaet/​reg/​1991/​1, 27 November 1999. 195 Regulation No 2000/​38, On the Establishment of the Ombudsperson Institution in Kosovo, UNMIK/​REG/​ 2000/​38. 196 A Momirov, ‘Local Impact of “UN Accountability” Under International Law: The Rise and Fall of UNMIK’s Human Rights Advisory Panel’ (2012) 19 International Peacekeeping 3. 197 G Visoka, ‘The ‘Kafkaesque Accountability’ of International Governance in Kosovo’ (2012) 6 Journal of Intervention and Statebuilding 189. 198 J Werzer, ‘The UN Human Rights Obligations and Immunity:  An Oxymoron Casting a Shadow on the Transitional Administrations in Kosovo and East Timor’ (2008) 77 Nordic Journal of International Law 105. 199 R Everly, ‘Reviewing Governmental Acts of the United Nations in Kosovo What Future for Kosovo’ (2007) 8 German Law Journal 21. 200 J Nilsson, ‘Unmik and the Ombudsperson Institution in Kosovo:  Human Rights Protection in a United Nations “Surrogate State” ’ (2004) 22 Netherlands Quarterly of Human Rights 389. 201 D Marshall and S Inglis, ‘The Disempowerment of Human Rights-​Based Justice in the United Nations Mission in Kosovo Human Rights in Transition’ (2003) 16 Harvard Human Rights Journal 95.

86  Frédéric Mégret control of the UN and that it is therefore the UN itself that should be held liable.202 This then raises the problem of UN immunity, which was very apparent when victims of the cholera epidemic in Haiti caused by MINUSTAH troops sought to sue the UN unsuccessfully before a US Court. Many voices have since argued that immunity should not extend to rights violations,203 suggesting that if the UN is serious about minimizing the human rights harm of its actions, then sooner or later it will need to do some soul searching about fundamental ways in which it does business. Finally, it should be noted that, cutting across international humanitarian law and human rights, recurrent and eminently troubling accusations that troops and civilian personnel under the UN broad Security Council banner have been engaged in forms of sexual violence and exploitation, from Bosnia to the Central African Republic, have created a very real crisis of legitimacy for the UN. It must be emphasised that, as indicated earlier, the UN has been adamant that one of the raison d’être of its interventions is to minimise harm—​including, increasingly, sexual violence—​caused by conflict, thus shedding a very awkward light on the accusations directed at the UN itself. In large part this is a problem more directly for the Secretary General204 and the Department of Peacekeeping Operations as well as, crucially, troop contributing countries, but the Council is of course ultimately responsible for the missions it has authorized. The problem is a recurring one that has proved resistant to a range of attempts to tackle it. In 2016, the Council adopted resolution 2272 which sends the clearest signal to date that entire units or contingents (and not just individual wrongdoers) should be repatriated ‘when there is credible evidence of widespread or systematic sexual exploitation and abuse by that unit’.205 The resolution provides welcome guidance from the top but has its limitations and still largely leaves intact the structure of impunity that has too often allowed troop contributing states not to prosecute those involved and for the UN to hide behind its immunity in front of the host state, in addition to not really engaging the gendered assumptions of peacekeeping.206

202 B Knoll, ‘Rights without Remedies: The European Court’s Failure to Close the Human Rights Gap in Kosovo’ (2008) 68 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 431; C Ryngaert, ‘The European Court of Human Right’s Approach to the Responsibility of Member States in Connection with Acts of International Organisations’ (2011) 60 International & Comparative Law Quarterly 997; H Krieger, ‘A Credibility Gap:  The Behrami and Saramati Decision of the European Court of Human Rights’ (2009) 13 Journal of International Peacekeeping 159. 203 K Boon, ‘The United Nations as Good Samaritan: Immunity and Responsibility’ (2015) 16 Chicago Journal of International Law 341; R Freedman, ‘UN Immunity or Impunity? A Human Rights Based Challenge’ (2014) 25 European Journal of International Law 239; B Rashkow, ‘Immunity of the United Nations’ (2014) 10 International Organisations Law Review 332. 204 UN Secretary-​General, Special Measures for Protection from Sexual Exploitation and Sexual Abuse, UN Doc A/​70/​729 (16 February 2016). 205 O Simić, ‘Policing the Peacekeepers: Disrupting UN Responses to ‘Crises’ Over Sexual Offence Allegations’ (2016) 20 Journal of International Peacekeeping 69. 206 S Smith, ‘Accountability and Sexual Exploitation and Abuse in Peace Operations’ (2017) 71 Australian Journal of International Affairs 405.

The Security Council  87

(b)  The effect of embargoes and blockades on civilian populations The effect of embargoes and blockades on the human rights of populations is perhaps one of the more vexing issues surrounding Security Council activity in the past decades. The Security Council is authorized by Article 41 of Chapter VII of the United Nations Charter to impose economic sanctions and has done so many times in its history as a remedy against perceived threats to international peace and security, sometimes with notable success as in the case of the South African apartheid regime. Of course, Council-​imposed sanctions and embargos are primarily aimed at undercutting the material and financial sustenance of a particular conflict which, in the long run, should serve to protect the civilian population. Apart from the issue of their effectiveness, however, increasing awareness has been raised in the 1990s as to the potentially dire effect embargoes can have on civilian populations and their enjoyment of elementary rights.207 Although the hardship caused to populations by embargoes was already evident in Haiti and Yugoslavia, it has been nowhere clearer than in the case of Iraq after the First Gulf War. One might see the continued imposition of sanctions in the Iraq case as attributable to the government of that country, but it is hardly as if the Council can ignore the adverse consequences of its own actions, especially in cases where local populations bear the brunt of sanctions and have very little democratic input. It would be wrong to say that the Council has been insensitive to the humanitarian dilemma arising from economic boycotts and related non-​military sanctions. It has sought to shield civilian populations to some degree by allowing exemptions for humanitarian needs, generally for medical supplies and ‘in humanitarian circumstances, foodstuffs’.208 To this end, it formulated procedures to administer the humanitarian exceptions and to supervise trade transactions for that purpose. The ‘Oil for Food’ programme stands out as one attempt to administer various humanitarian exceptions to an otherwise particularly inflexible embargo209 even though the fact that it fell prey to corruption is particularly worrisome. These measures, while of some value, have not sufficed to overcome widespread criticism of the hardship caused by economic embargoes to people in the targeted state as well as in third states. This is partly because of a certain inflexibility by Security Council members in interpreting exceptions, but also because it may be in the nature of embargoes, as a rather blunt policy tool, that their effect on civilian populations can never be radically reduced, be it only because of the technical problem of so-​called ‘dual-​use’ products. A  panel commissioned by the Security Council in 1999 found that the humanitarian situation in Iraq was dismal and that this was to a large extent

207 On the issue in general, see R Provost, ‘Starvation as a Weapon: Legal Implications of the United Nations Food Blockade against Iraq and Kuwait’ (1992) 30 Columbia Journal of Transnational Law 577. 208 As regards Iraq see S/​RES/​661 (1990) and S/​RES/​687 (1991); as regards Yugoslavia see S/​RES/​757. 209 S/​RES/​986 (1995).

88  Frédéric Mégret attributable to the UN sanctions.210 This has precipitated calls for making the Council more accountable for the humanitarian and human rights impact of its sanctions.211 The 2000s witnessed a renewed willingness in the Security Council to discuss the issue. The Council has accepted, for example, that humanitarian impact assessments of proposed sanctions should be conducted prior to their adoption:212 an indication that it now recognizes that it bears part of the responsibility for the plight of the populations negatively affected by its sanctions. One of the concrete methods through which the negative side-​effects of sanctions can be minimized is by better targeting them from the start. Indeed, the idea of ‘smart sanctions’ had already become increasingly prominent towards the end of the 90s. In 1997 and 1998, for example, travel and financial restrictions were imposed on members of UNITA. Subsequently, the Security Council sought to target the trade of diamonds which was used to finance the conflicts in Angola, Sierra Leone, the Democratic Republic of Congo, and Liberia.213 As the Secretary General emphasized it, a ‘more prompt and effective response to present and future threats to international peace and security’ was needed, ‘designed so as to maximise the chance of inducing the target to comply with Security Council resolutions, while minimising the effects of the sanctions on the civilian population . . .’214 Paradoxically, it is this in many ways improved sanctions regime from a human rights perspective that would, in turn, come under scrutiny in the context of the Council’s response to terrorism.

(c)  Targeted sanctions and terrorism In the late 1990s, and as a result of some of the criticism of its sanctions policy, the Council began moving towards a targeted sanction policy in Angola and in Sierra Leone. The move to targeted sanctions however was nowhere more evident than in the fight against terrorism, an area in which the Council assumed an increasingly high profile role, and where targeted sanctions against select individuals seemed to provide an ideal policy tool. Sanctions adopted by the UN initially focused against both the Taliban and Al-​Qaida, but by the time that the former had been destroyed, Al-​Qaida remained as the principal target of the sanctions. These initial sanctions, which had already been adopted before 9/​11, were indeed ‘targeted’ in that only a select group of individuals (Al-​Qaida members and associates) were concerned. Resolution 1267 set up a sanctions Committee whose role is to supervise the administration of sanctions through a state reporting mechanism. Identification of entities associated with Al-​ Qaida is through states contributing information to that effect. Designation as a terrorist entails an obligation for all UN state members to, inter alia, freeze the assets of the relevant groups. 210 See S/​1999/​356. 211 A Reinisch, ‘Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions’ (2001) 95 American Journal of International Law 851. 212 For a suggestion by the Secretary General and its endorsement by a Security Council Presidential Statement see, respectively see S/​1998/​147 and S/​PRST/​1999/​34. 213 See S/​RES/​1295 (2000), S/​RES/​1306 (2000), S/​RES/​1342 (2001). 214 Report of the Secretary-​General on the Work of the Organisation, A/​55/​1, at 13, para 100.

The Security Council  89 The relatively narrow focus of resolution 1267, however, was significantly changed with the adoption of resolution 1373 in the wake of the attacks that had struck the US. It is the basis of a much more comprehensive effort at dealing with terrorism in all its forms. States are required by the resolution to freeze all funds and other financial assets or economic resources of terrorists, but the resolution is open-​ended in both time and space and does not include a list of what persons or entities fall under that resolution. The tendency of the net to be cast quite wide is compounded by the often blurry contours of ‘terrorist groups’ and the resulting risk of sanctions being imposed on persons who are only loosely connected to terrorist activity. Indeed, the Council defers largely to states to determine who is affiliated with a group already established as terrorist. Resolution 1390 thus emerged as a general regime dealing with terrorism, in which targeted sanctions were applied increasingly directly to a variety of non-​state actors. Resolution 1267 was not without problems in itself, but the extension of the terrorist ­sanction regime to a potentially unlimited number of ‘terrorist’ groups has amplified substantial human rights concerns, even though the issue surfaced relatively late compared to the more general debate on sanctions (which is typically more interested in their efficacy).215 Clearly the consequences for individuals or organizations of being blacklisted by the Sanctions Committee are considerable, especially in a context where the information on the basis of which one is blacklisted is not readily available. If one follows international human rights jurisprudence, due process rights should be guaranteed as soon as the object of a procedure is the determination of ‘civil rights.’216 Although it would seem that it is mostly property that is affected, through property it is a host of other rights can be put in danger (privacy, presumption of innocence). The inability to challenge the freezing of assets, moreover, would seem to be in itself a violation of the right to access a court and the right to an effective remedy. Moreover the no-​fly lists clearly impede freedom of movement. It has not seemed that these consequences have been met by a correspondingly and appropriately protective regime. Procedurally, some safeguards are generally built into UN sanctions systems. For example, decisions by the Sanctions Committee are by consensus and a review of one’s case is possible (leading to a ‘delisting’) through the intervention of one’s state of residence or citizenship. Moreover, by 2002, the Council developed (non-​binding) guidelines on the protection of due process rights, urging transparency and a procedure for the lifting of sanctions. Notwithstanding, designation as terrorist or the review process are at best administrative processes, bereft of any of the due process guarantees that one might expect when sanctions are at stake. The process, furthermore, is quite confidential and no information is given publicly, for example, on why a person or entity were added to the list. The Sanctions Committee relies entirely on states to forward names of terrorism-​implicated individuals or organizations, so that a very real fear arises that it may simply rubber-​stamp state abuses. As to the possibilities for review, they remain quite theoretical since they are dependent on the very state which, most of the time, will have provided the information allowing a person or organization to be blacklisted in the first place. 215 See I Cameron, ‘UN Targeted Sanctions, Legal Safeguards and the European Convention on Human Rights’ (2003) 72 Nordic Journal of International Law 159. 216 See Article 6 of the ECHR.

90  Frédéric Mégret From a substantive perspective, in addition, there is something paradoxical about the fact that the Security Council is engaged in strong initiatives to combat terrorist, even whilst the UN still seems incapable of adopting a comprehensive definition of the phenomenon. The designation of terrorists by the Sanctions Committee has thus been criticised as based on rather vague criteria, and even subsequent clarifications217 have not alleviated fears that the net may occasionally be cast too broadly.218 One of the problems is that the Security Council targets not merely the most active terrorists but also various individuals who have arguably supported them. This creates difficulties at the periphery, especially since it is in the nature of terrorist networks such as Al-​Qaida to be nebulous and only loosely organized. The standard of proof required to determine that an entity is terroristic in nature is not very high. States are only required to provide ‘relevant information’, and the Sanctions Committee is supposed to ‘include to the extent possible, a narrative description of the information that forms the basis or justification for taking action’. That very real human rights dangers arise of the Council’s opaque dealing with terrorism is something that has been recognized by the UN itself: . . . the Security Council must proceed with caution. The way entities or individuals are added to the terrorist list maintained by the Council and the absence of review or appeal for those listed raise serious accountability issues and possibly violate fundamental human rights norms and conventions.219

However, it remained unclear for a long time, despite some of the many suggestions that were made by commentators to alleviate concerns about human rights violations, that the Security Council was committed to doing much about the problem. The Council is, after all, composed of states, many of which will at varying times be involved in the repression at home of groups or movements which they will brand as ‘terrorist’ In view of the considerable emphasis that has now been put on terrorism as a threat—​possibly the major threat in the eyes of some—​to international peace and security, it seems likely that the Council could end up acting as an amplifier of repressive trends rather than as a moderating influence. Indeed, the Security Council, by boosting concerns about terrorism, may well set precedents of inscrutability which could be interpreted as an objective encouragement to states to deal with terrorists without unduly encumbering themselves with rights concerns. On rare occasions, sanctions adopted as a result of Security Council resolutions have been challenged before courts on human rights grounds. The immunity of the UN means that the Security Council’s actions are very unlikely to be challenged

217 S/​RES/​1566 (2004) and S/​RES/​1617 (2005); 218 Second report of the Analytical Support and Sanctions Monitoring Team appointed pursuant to resolution 1526 (2004) concerning al Qaeda and the Taliban and associated individuals and entities, 15 February 2005, S/​ 2005/​83,  11. 219 See: ‘A more secure world: our shared responsibility, Report of the High-​level Panel on Threats, Challenges and Change’, A/​59/​565, para 152.

The Security Council  91 domestically as such. This still leaves open the possibility, at least theoretically, that a state or a regional organization’s measures in implementing the UN sanctions regime could themselves be attacked. At stake is the issue of whether states or regional organizations must act simply as ‘conveyor belts’ for Council decisions, or whether they have a role in assessing the validity of such decisions, principally on the basis of respect for rights. Indeed one concern is that, Security Council resolutions, because they place obligations on State parties, may encourage these to violate certain human rights guarantees to which they have subscribed. In such cases, the superiority of international law, of the UN Charter or of Chapter VII adopted resolutions is of little comfort to the states involved if they are trying to square these obligations with international human rights ones. A few cases have been heard on this issue, most of them in the European Union context. The European Court of Justice traditionally tended to defer to the authority of public international law and the power of the Council, rather than examine the legality of Security Council pronouncements in light of human rights. In the case of Bosphorus,220 the Court accepted the possibility that Security Council resolutions might end up curtailing individual rights on the ground of the fundamental public interest of the international community. In some cases, regional and domestic courts have offered more push back against Council regimes that might be in conflict with core human rights norms. The Court of First Instance of the European Communities (CFI) has, for example, heard several cases brought by individuals who had suffered, via the EU, from UN financial sanctions as a result of being allegedly associated with Osama bin Laden. Although the Court did decline to review the lawfulness of the Security Council’s decision on the basis of fundamental human rights per se, it did consider that member states (of the Community) would not be bound by a Security Council resolution which violated jus cogens norms (only to find, however, that no jus cogens norm had been violated in that case). The CFI subsequently decided that individuals whose assets have been frozen because of the Council have a right, protected by the Community legal order, to compel their governments to exercise a sort of ‘diplomatic protection’ on their behalf challenging their inclusion on the ‘terrorist list.’ Persons may also bring an action for judicial review in cases where the competent authority has wrongfully refused to submit their case to the Sanctions Committee for re-​examination.221 These judgments, however, still evidence significant deference to the authority of the Security Council, at best suggesting ways in which Security Council resolutions that violate rights can be accommodated within the European legal order. More dramatically, in the famous Kadi case,222 the European Court of Justice held that the Resolution 220 ECJ 30 July 1996, Case C-​84/​95 Bosphorus The case involved the seizure by Irish authorities of an aircraft which belonged to a Yugoslav airline company. The seizure was based on Security Council ordered sanctions. The Turkish charter company which had leased the plane in good faith challenged the seizure. 221 Case T-​49/​04 Faraj Hassan v Council of the European Union and Commission of the European Communities, Judgment of the CFI, 12 July 2006 and Case T-​253/​02 Chafiq Ayadi v Council of the European Union and Commission of the European Communities, Judgment of the CFI, 12 July 2006. 222 Kadi and Al Barakaat International Foundation v Council and Commission (2008) C-​402/​05.

92  Frédéric Mégret was invalid in EU law and this despite the Security Council’s prerogatives in relation to international peace and security and the fact that one should normally significantly defer to its authority. This was consonant with a position of not reviewing the legality of Security Council resolutions in international law: it merely meant that that the EU regulation applying the resolution was itself invalid. Such cases have created a whole EU-​specific cottage industry of challenging terrorist designations and soliciting delisting, a significant part of which is indirectly linked to Security Council resolution implementation.223 Over time, they have also clarified the responsibilities of those involved and specifically built pressure on EU states and institutions to take up the issue with the Security Council. In turn, the Council has shown itself, from 2008 onwards, as open to amending the targeted sanctions regime. In effect, the failure by EU countries to implement the sanctions regime would have dramatically undermined its action, as some states had begun already to show signs of simply not resorting to the sanctions regime. If nothing else, EU judgments introduced a ‘Sword of Damocles’ hanging over and constraining Council initiatives.224 The Council, for example, first created a Focal Point and eventually an Ombudsperson for the Al-​Qaida sanctions regime, to whom parties listed under terrorism sanctions could address themselves in order to be ‘delisted’. The powers of the Ombudsperson have since been steadily increased, and she can now recommend delisting. Moreover, the Sanctions Committee can only reject such delisting by consensus or, failing that, pass the question onto the Council which must then reject the delisting in public. This suggests that transparency and accountability of the Council and its subsidiary bodies are keys to ultimately implementing a rights culture. One may therefore see emerge a rough system of checks and balances wherein states and regional organizations successfully push back at Council resolutions that lead to outcomes that clearly contradict human rights principles. However, although this sort of dualism may safeguard basic principles in various regional or domestic legal orders, it does maintain the basic problem intact. The non-​application of rights infringing Council resolutions is only acquired as a result of a failure to apply binding Council resolutions. Since it has been shown to be unlikely that domestic or regional courts would arrogate themselves the right to review the legality of Security Council resolution (and if not EU courts, then who?) and that, in the larger order of things, this is probably not ideal225 (if anything, the ICJ would be more suited), there is real concern that the Council lacks a proper system of checks and balances to protect itself against the temptation to neglect rights concerns.

223 M Heupel, ‘EU Sanctions and Due Process Rights’ in Monika Heupel and Michael Zürn (eds), Protecting the Individual from International Authority (Cambridge University Press, 2017). 224 M Heupel, ‘UN Sanctions Policy and the Protection of Due Process Rights: Making Use of Global Legal Pluralism’ in M Heupel and M Zürn (eds), Protecting the Individual from International Authority (Cambridge University Press, 2017). 225 L J Van Den Herik, ‘Peripheral Hegemony in the Quest to Ensure Security Council Accountability for Its Individualised UN Sanctions Regimes’ (2014) 19 Journal of Conflict and Security Law 427.

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1.5  Conclusion The Council’s impact on human rights appears at the same time potentially formidable and problematic in practice. Most commentators would probably agree that there have been benefits to what the Council has done, challenges with what it has not done, and complications with the ways in which it has done some things. There is perhaps no more significant trend in the Council’s practice than the slow but unmistakable and possibly even irreversible redefinition of international peace and security in terms of how the concept relates to human rights. To a large extent, it is as if the Council had played apprentice sorcerer with human rights: initially human rights concerns were probably introduced somewhat opportunistically to add legitimacy to measures that were really adopted for other reasons. Little by little, however, human rights considerations, by creating certain expectations, have tended to acquire an inertia of their own, so that ultimately it has been possible to oppose them to Security Council members. No aspect of the Security Council’s activity illustrates this better than the path of international criminal justice. From international criminal tribunals created by the Council itself, to the very ambivalent position in which the Council now finds itself in relation to the ICC, international criminal justice, which was initially seen very much as a means, has tended to emancipate itself and become an end in itself. Of course, it is certainly not the case that the Council has replaced international peace and security as its main justification for action with human rights. But human rights have arguably won some ground as a decisive factor in steering the Council into action. Although the Council’s behaviour has been far from always resolute, it may find it increasingly difficult—​or at least costly politically—​not to stand up for the norms that it has previously proclaimed. The Council’s activities in favour of human rights have also led it to resort increasingly to human rights as a sui generis way of improving international peace and security. This is testimony to the idea that the linkage between the two concepts is not merely rhetorical: the Council actually takes human rights seriously enough that it will occasionally incorporate them in its own actions. The creation and support of international criminal tribunals, in this respect, stands as a remarkable example of the diversification of the Council’s activities, as does the increasing mainstreaming of human rights within peacekeeping operations. Together, these developments suggest, in the best of cases, an approach in which ends and means are increasingly seen as inseparable: human rights are the means to a lasting peace that has respect for human rights as one of its foundations. In the most utopian of scenarios, the Council might be seen as gradually pulling itself up by the boot-​straps: its actions in favour of human rights today will provide the standards to which it can be held tomorrow so that, through an ever accumulating exercise of self-​ binding, the Council will eventually ‘corner’ itself into being as strong a human rights upholder as it has the potential to be. In the process, Security Council intervention could further redefine global governance and human rights, providing much needed

94  Frédéric Mégret ‘force’ to back the promise of human rights, substantially redrawing the lines that separate the international and the domestic, and ‘constitutionalizing’ both the international use of force and its role within it. By the same token, at least four, not necessarily compatible, major concerns arise in relation to the Council’s increased interest in human rights, which potentially cast a long shadow over its role. First, perhaps the principal concern for human rights lawyers is that, despite its very significant evolution, the Council is (still) not doing enough. The Rwandan genocide was probably an all-​time low in the history of the United Nations, and much of this failure could be blamed on the Council’s inability to rise to the occasion. More than two decades later, and despite the immense effort that has gone into thinking about these shortcomings, particularly since the Kosovo episode, the Darfur and the Rohingya crises are a reminder that for all its rhetoric, the Council continues to have tremendous difficulty in transcending its divides and in taking resolute action where it would be most needed. Too much should not be read into the occasional apparently more interventionist moment at the Council, and the Libya episode for example, cloaked as it might be in R2P-​ish language, almost certainly owes much more to very peculiar geopolitical circumstances than human rights.226 Behind these shortcomings lies the reality that, for example, states are often quicker to vote for strongly worded resolutions than to contribute troops. One can wonder how long the Council can remain in the intractable situation of not being able to rise to the lofty normative ambitions it has arguably set itself. More generally, the tension between the demands of human rights and respect for sovereignty, even though it has been powerfully mediated by ‘international peace and security’, remains a particularly resilient one. That must surely be, however, because ‘international peace and security’ itself remains an inherently contested concept. Human rights may be conducive to international peace and security, even often so, but there may be times when achieving international peace and security means at least in the short term having human rights concerns take second place. The complex balancing act that goes on at the Council between competing values, as a result, never seems to be capable of anything more than ad hoc resolutions. That this is frustrating from a human rights point of view is not surprising, but underscores the continuing prevalence of political logics based on what is achievable rather than what might be ideally desirable. Moreover, it may of course be that in some cases, not doing anything is the best and wisest course, even from a human rights perspective. The pro-​intervention bias of many human rights activists must surely today be tempered by a litany of Council interventions that have consistently made human rights worse off for the countries or persons affected. An anti-​ interventionist, sovereignty protecting stance might in some cases be just as much about human rights as an interventionist position. A second, related, concern is that what the Council is doing, it is doing inconsistently. On that view, the problem is not so much or at least not strictly that the Council is not doing enough, but that it seems to be doing so much in some cases, and so little 226 A Garwood-​Gowers, ‘The Responsibility to Protect and the Arab Spring: Libya as the Exception, Syria as the Norm Thematic: The Use of Force in International Law’ (2013) 36 University of New South Wales Law Journal 594.

The Security Council  95 in others. For each circumstance where human rights have been taken into account by the Council, there are many if not more when it was not, even though a strong argument existed that it should.227 Whereas restoring democracy, for example, was a major ground for intervention in Haiti, this Council precedent has not been matched by similar action in any other context and in fact the Kovoso intervention may have been deeply undemocratic; although the Security Council created the ICTY and the ICTR and usefully referred the Darfur situation to the ICC, it has at the first opportunity used its referral power vis-​à-​vis the ICC to block prosecutions of peacekeepers of non-​state parties; and though certain African states, for example, make relatively easy targets for Security Council intervention, Chechnya, Tibet, or Israel remain largely off-​limits, even though a clear link exists between violations of human rights and a threat to international peace and security, even when the UN human rights machinery is otherwise doing its best to bring attention to violations in these regions. At the heart of these dilemmas is a tension between a vision of the Council increasingly bound by its precedents and acting as a law enforcer, and a vision of the Council as merely a decision-​making mechanism endlessly tied to the contingent interests of its members.228 Needless to say, the debate is hardly over on which of these visions is most likely to prevail, let alone which is most desirable. Are those instances of the Council not working properly or working precisely as it was meant to? Efforts to rationalize the Council’s activity in Libya but inertia in Syria, for example, seem destined to look for a consistency that the Council has never really sought.229 Inconsistency is deeply woven into the fabric of what the Council does and, in fact, the Council’s focus on human rights has been described as a typical instance of its own ‘deregulation’.230 The Council, for all its promises, remains a body composed of a small fraction of states and dominated by a few big powers whose commitment to human rights at home and abroad is either very low or volatile. It may be worrying, in this context, that none of the reform projects seem set to tackle the veto issue or that there has been so little willingness by permanent members to acknowledge that the veto is not simply a privilege but also a responsibility. Having said that, it remains wholly unclear what human rights ‘consistency’ would really mean. If the promise of human rights was to elevate policy action above the vagaries of internecine political bickering, then the record of the Security Council is a study in disappointment, and a lesson in the persistence of politics. It may even be better that the Council be inconsistent rather than consistently persist in ways that are found wanting. Inconsistency may just be another word for the need to carefully hammer out ad hoc and case-​specific approaches. There may be something, in the end, to the notion that, for example, peacekeeping is merely a form of ‘organised hypocrisy’.231 227 See generally, D Wippman, ‘Change and Continuity in Legal Justifications for Military Intervention in Internal Conflict’ (1995) 27 Columbia Human Rights Law Review 435. 228 A Hehir, ‘The Permanence of Inconsistency: Libya, the Security Council, and the Responsibility to Protect’ (2013) 38 International Security 137. 229 S Zifcak, ‘The Responsibility to Protect after Libya and Syria Focus: IHL and ICL: The Future, the Present and the Past: The Future’ (2012) 13 Melbourne Journal of International Law 59. 230 Aznar-​Gómez, above n 4. 231 M Lipson, ‘Peacekeeping: Organised Hypocrisy?’ (2007) 13 European Journal of International Relations 5.

96  Frédéric Mégret A third concern is that the Council is interested in human rights in certain areas of its activities, but has often failed to see the negative human rights impact that it has in other areas, especially as it takes on more and more governance responsibilities. In quantitative terms, no type of measure has done more harm to the Council’s claims that it cares about human rights than embargoes, in Iraq and beyond. The behaviour of peacekeepers or troops more generally under Council mandate and the risk of rights violations arising out of the regime set up to deal with terrorism are also significant concerns. These concerns come with a maturing role for the Council, and they suggest, quite strikingly, that we have no reason to think that simply because the Council supposedly has human rights more at heart on some level, it will not negatively interfere with human rights on another. Indeed, the opposite would be surprising, in a context where the modes of decision of the Council and its composition frame it as a rather blunt executive that is little accountable and far from an ideal system of human rights governance. In that respect, the increased powers of the Council inevitably raise questions about the allocation of power within the UN system. They also raise fundamental questions of legitimacy not only among states vying to be represented at the Council but also more globally between the Council and populations that may come at any given time to be impacted by its actions. One lesson to be drawn from the record of the Council in dealing with the negative ­impact of some of its actions is that there is no easy fix because much of that impact is so i­ntrinsically linked to the nature of the exercise of its power. Given that it is unlikely that the Council will (or should) simply desist from sending peace keepers or adopting sanctions (although the former is sometimes touted as a danger if its margin of manoeuvre is too restricted), the Council has created governance problems for itself that will not go away easily. There is, in fact, often a ‘damned if you do, damned if you don’t’ quality to some of the resulting dilemmas: for example, for a decade, the Council was much criticized for its blanket and indiscriminate sanctions, only to be pilloried, in turn, for having targeted sanctions that did not guarantee due process; or the Council is accused of invoking R2P to effect regime change in Libya, but then criticized for failing to draw on R2P in Syria. Ultimately, it may be that rather than focusing on what the Council should be doing right as a matter of policy, its recurring crises of human rights legitimacy will reinforce calls for its greater procedural accountability and openness to various affected constituencies. It is also the case that frequent calls for human rights accountability will keep raising the vexed issue of who could possibly review the acts of the Security Council,232 or indeed whether the Council is bound by international law at all.233 232 B Fassbender, ‘Quis Judicabit?: The Security Council, Its Powers and Its Legal Control (Review Essay)’ (2000) 11 European Journal of International Law (EJIL) 219; E Cannizzaro, ‘A Machiavellian Moment—​The UN Security Council and the Rule of Law’ (2006) 3 International Organisations Law Review 189; K Cronin-​Furman, ‘The International Court of Justice and the United Nations Security Council: Rethinking a Complicated Relationship’ (2006) 106 Columbia Law Review 435; I Petculescu, ‘The Review of the United Nations Security Council Decisions by the International Court of Justice’ (2005) 52 Netherlands International Law Review 167; A Reinisch, ‘Should Judges Second-​Guess the UN Security Council Forum on Kadi (Continued)’ (2009) 6 International Organisations Law Review 257. 233 G Oosthuizen, ‘Playing the Devil’s Advocate: The United Nations Security Council Is Unbound by Law’ (1999) 12 Leiden Journal of International Law 549; E De Wet, The Chapter VII Powers of the United Nations Security

The Security Council  97 A fourth and somewhat different concern is that the Council may already be, in fact, doing too much. The oft-​heard clamour for the Council to intervene (for example, in Syria) may be a case of ‘beware what you wish for’ on the part of the human rights community. All of these developments bring to the fore the more normative question of whether the Council should do more in favour of human rights, apart from the fact that it is already attempting to do so. There is certainly consensus that at the very least the Council should not violate or otherwise negatively affect human rights through its actions, a sort of ‘do-​no-​harm’ minimalist line. What is more contentious is the issue of the Council more proactively seeing itself as a defender of human rights. Indeed, it remains to be seen whether, even were the Security Council to adopt a higher human rights profile, this is something that should be welcomed as an unmitigated blessing and whether regular encroachments on the sovereignty of states guided by human rights concerns, might not end up weakening rights. There is, to begin with, a real danger that human rights will be used by the Council opportunistically as a discourse of legitimization. This could be problematic for both human rights and international peace and security. In many ways, human rights issues are clamouring for attention within the UN system, but not all the superficially sympathetic attention they get will be welcome. Moreover, the conceptual brew that results from mixing international peace and security and human rights together, can be particularly potent, and could emerge as a very powerful tool to intervene in the domestic affairs of states in order, for example, to precipitate regime change. This concern was very apparent in the Council-​mandated intervention in Libya, an intervention that was suspected of coming close to effecting regime change. Although we traditionally think of human rights as limiting the actions of the powers that be, to say that human rights apply to a particular body is also implicitly to invest them with certain governance prerogatives. States such as Russia have not shied from loosely invoking R2P discourse in order to justify their incursions in other states: the risk of pursuing various goals at once is that the Security Council will obtain neither human rights nor international peace and security. The line that separates ordinary human rights violations from human rights violations that make it to the level of a threat to or breach of international peace and security should probably be kept as clear as possible, lest potentially dubious interventionist agendas be justified. In fact, there are also more general dangers to a discourse that ‘mixes everything.’ There is certainly a sense that after years of expansion, the concept of international peace and security may end up becoming synonymous with so much that it becomes virtually inoperative.234 Of course, it may well be true that ‘everything is connected’—​human rights violations do affect international peace and security and vice versa. But conflating all issues can lead to conceptual mush and a blurring Council (Hart Publishing, 2004); A Orakhelashvili, ‘The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions’ (2005) 16 European Journal of International Law 59. 234 M David, ‘Rubber Helmets: The Certain Pitfalls of Marshaling Security Council Resources to Combat AIDS in Africa’ (2001) 23 Human Rights Quarterly 560.

98  Frédéric Mégret of responsibilities where the Council is neither the efficient guarantor of international peace and security nor an impartial promoter of human rights; or it may transform the role of the Council from a sort of honest broker and occasional enforcer of security and peace, to that of a strident human rights intervener. There are institutional concerns as well. The Council did not exactly usurp its human rights responsibilities, responsibilities that can be squarely located within the Charter. But pushed to their extreme, the Council’s forays into human rights involve significant transfers of institutional power and could bring the Charter’s interpretation to a breaking point. For example, if the Council were to become, for the sake of argument, the principal focal point within the UN for human rights matters (needless to say, a fairly implausible scenario at this stage), this would involve a significant transfer of power from other bodies (most relevantly the Human Rights Council or the General Assembly), which might end up being relatively marginalized as a result. Although the Security Council could always argue that it was only casting condemnation on human rights practices because a breach to international peace and security was involved, that might end up appearing as a thinly disguised pretext, displacing the mechanisms that have been put in place to justify collective human rights action (and which in the case of the Human Rights Council typically—​and not for no reason—​involves a more representative body and deliberation process). Linked to, but broader than, this concern, is the idea that whilst the Security Council may be a tremendous potential ally of the cause of human rights in times of crisis, it remains a body deeply unsuited to the ordinary conduct of human rights affairs. As has been seen in this Chapter, the Council obviously has a tremendous potential to promote rights but may create expectations that it cannot honour, subjecting human rights to an even worse form of political horse-​trading than that which has historically so damaged the cause of human rights at the UN, and unduly narrowing the scope of deliberation that human rights issues should rightly be the object of. At the very least, more transparency and perhaps an attempt to rationalize its own evolving attitude to humanitarian and human rights issues would be welcome, in an effort to clarify the division of labour within the UN. This is not simply a question of the institutional allocation of power. Ultimately, it raises more fundamental questions about the role, legitimacy and goals of the United Nations. One can see from the point of view of a generally weak UN human rights regime, how there is a very strong temptation to rely on the Council, as at least the ‘ultimate guarantor’ of rights, when all else fails. By the same token, it seems important that the Council does not become involved in human rights on its own, and that all attempts to base its actions on human rights rely on a coherent, critical and system wide institutional dialogue.

2 The General Assembly Andrew Clapham

2.1 Introduction The General Assembly is the United Nations’ main deliberative organ and, to the extent that it reflects the will of the majority of the UN members, it has some influence on the organization’s general direction. It is the organ generally mandated to discuss and make recommendations on any question within the scope of the Charter, and it is specifically asked to initiate studies and make recommendations to promote, among other things, human rights. The Assembly’s human rights role is laid down in the UN Charter and it is overarching.1 It would seem therefore to be ideally suited to act to promote and protect human rights. The General Assembly, however, is an assembly of state representatives. The delegates represent their governments and this political composition can make it difficult to find agreement on which human rights deserve promotion, and which states, or rather which governments, should be singled out for censure. In the past, human rights have been caught up in various ideological conflicts, with states dividing along bloc lines. The end of the Cold War certainly opened up new possibilities for concerted action at the General Assembly. John Quinn, in the previous edition of this book concluded his chapter on the Post-​Cold war future of the General Assembly by suggesting that, ‘The challenge for the Assembly is to take the lead in the UN system in forward thinking about desirable objectives, and the most realistic strategies by which to achieve them’.2 But divisions remain, and blockage orchestrated by even a few states can effectively shut down initiatives, or water down proposals, so that they offer little meaningful progress or protection. It would be nice to imagine that the General Assembly will be a thinking organ of the UN, but, despite the best efforts of various Presidents of the Assembly, thinking by committees, each with in effect nearly two hundred members, invariably leads to objections, platitudes and repetitive ‘agreed language’ from previous sessions. We will consider the roles of the various committees below. However, it is important to go beyond the General Assembly’s formal structure to unveil the real role of 1 ‘The General Assembly shall initiate studies and make recommendations for the purpose of . . . b. promoting international co-​operation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.’ UN Charter, Article 13(1)(b). 2 J Quinn, ‘The General Assembly into the 1990s’ in P Alston (ed), The United Nations and Human Rights: A Critical Appraisal (Clarendon Press, 1992) 106.

100  Andrew Clapham the Assembly. Many high-​level dignitaries pass through the United Nations General Assembly to participate in the so-​called ‘General Debate’.3 These include Heads of State, Heads of Government, and Foreign Ministers, all assisted by their Permanent Representatives to the United Nations (their Ambassadors Extraordinary and Plenipotentiary). The high-​level officials perennially arrive in New York for the opening of the General Assembly in September and address the assembled government representatives. Although the President of the General Assembly has since 2003 chosen a theme for the debate, this does not prevent world leaders from setting out their general ideas and promoting their foreign policy. Few observers would recognize the speeches as part of a ‘debate’. In fact the dignitaries rarely assemble en masse, but rather spend their few days in New York discussing issues face-​to-​face with selected other leaders. Over 2,000 such meetings might take place during this short time. They take place anywhere but in the actual Assembly Hall. These encounters, together with private appointments with the UN Secretary-​General, are considered by their participants as important components in the international community’s process for problem-​solving. Henry Kissinger apparently once said: ‘I settle more problems and do more business in one week at the UN General Assembly than in three months of travel round the world.’4 Human rights, however, will typically be low on the agenda for any such meetings. The perceived controversial nature of the topic makes it awkward and something that ‘might sour the atmosphere’. Why risk a crucial trade agreement by raising the plight of some troublesome thorns in the side of one’s interlocutor? As for complaints of systemic violations of human rights, diplomats may find it hard to see how these can be raised ‘diplomatically’. Although bilateral meetings take place during the General Assembly, they rarely, in fact, even touch on the actual work programme of the Assembly. Even the official speeches made by Heads of State or Government make little reference to the issues facing the General Assembly or the prospects of new roles for this ‘principal organ’ of the United Nations. Of course, the work of the General Assembly spans the whole year and is not to be confused with the nine days of speeches given by presidents and ministers during this general debate. But the world leaders set the tone for the annual session by delivering statements which are more designed for consumption at home, rather than as a contribution towards international problem-​solving. Having ensured the smooth delivery and distribution of a speech which touches on a myriad of issues usually unconnected to either human rights or specifically the role of the General Assembly, the high-​level ministers and heads of state leave it to their ambassadors and diplomats to settle down to tackle the General Assembly’s agenda. When considering the state of the Assembly’s delegates at this point the first impression one has is that these diplomats are labouring in an exalted state of disconnectedness. This disconnectedness has a number of dimensions, all of which affect the prospects for meaningful human rights protection. 3 Now limited to nine working days from the opening of the regular session in September, in the past it ran for three weeks. R Higgins, P Webb, D Akande, S Sivakumaran, and J Sloan, Oppenheim’s International Law: United Nations, vol 1 (Oxford University Press, 2017) 39. 4 Quoted in I Williams, The UN for Beginners (Writers and Readers Publishing, 1995) 17.

The General Assembly  101

(a)  Disconnected from victims’ plight on the ground The General Assembly has been given certain roles regarding the overall supervision of the United Nations. Many of the items on its agenda, and the resolutions adopted, relate to ‘housekeeping’ or ‘internal’ issues at the United Nations.5 This means that questions of budget, staffing and supervision dominate and infect the mood and approach in all areas of work. Under the UN Charter the General Assembly has to consider and approve the budget of the Organisation and any financial and budgetary arrangement with specialized agencies as well as making recommendations to the agencies concerned.6 Most of the government representatives are posted in New York for a period of a few years and quickly become schooled in UN procedures and the history of old antagonisms between the blocs. In no time at all, they become disconnected from the actual problems of violence, discrimination and poverty and focus on scoring points by downsizing programmes or blocking budget lines. The minimal depth of debate that ensues reflects a more general dearth of thinking on international issues. The philosophy of the Assembly is basically to fulfil its programme of work and ensure that everything is tidied up in time for the holiday break around Christmas. Nevertheless, for this author, perhaps the problem should be seen less as a problem of the absence of substantive discussion and more as an issue of lack of empathy. To reflect at the international level the sentiments in the hearts of people subjected to human rights violations one would have to look beyond the minimal consensus achieved by state representatives through their resolutions. A genuine representation of the state of human rights in the world cannot come from state representatives from around the world. Yes some states will raise some human rights issues where this fits with their foreign policy, but for a less selective coverage one would have to turn to the individuals, organisations and alliances that make up what is increasingly referred to as ‘civil society’. Many transnational movements and voluntary organizations are now equipped and operating to examine global problems. These groups have greater access to the rich texture of the local issues which require global attention and solutions. The General Assembly, however, is an assembly of nation states and civil society has almost no role. This problem is not new. Several commentators have stressed the desirability of an international parliamentary assembly,7 a forum of civil society,8 and a network of people’s assemblies.9 All of these suggestions respond to the limits of inter-​state consensus as a 5 See M Peterson, The General Assembly in World Politics (Allen & Unwin, 1986) 261; see also Higgins et al, above n 3, 49–​54. 6 UN Charter, Article 17. 7 E Childers and B Urquhart, ‘Renewing the United Nations System’ (1994) 1 Development Dialogue 179–​81. 8 Commission on Global Governance, Our Global Neighborhood:  The Report of the Commission on Global Governance (Oxford University Press, 1995) 257–​60. 9 Suggested as a supplement to other UN type assemblies by C Alger, ‘Citizens and the UN System in a Changing World’ in Y Sakamoto (ed), Global Transformation: Challenges to the State System (United Nations University Press, 1994) 301–​29, where the author credits Majid Rahnema for the ideas related to a network of people’s assemblies. See also M Rahnema, ‘Under the Banner of Development’ (1986) 1(2) Development  37–​46.

102  Andrew Clapham means for solving global problems. They also recognize that global action requires an understanding of local problems and effective local solutions. The traditional methods of international law and co-​operation are increasingly seen as inadequate to address the human rights problems around the world. Of course, one could posit that civil society fora are not particularly democratic or representative; and that at least the system of state representation has some transparency and legitimacy. But asking states to debate the state of human rights in the world is not leading to a proper human rights debate nor to constructive policies to tackle the most egregious situations. Greater participation from parliamentarians and civil society could make the General Assembly more dynamic and less disconnected.

(b)  Disconnected from colleagues in the same government Larger governmental delegations at the United Nations will often have different diplomats dedicated to the Assembly’s different committees.10 In addition there may be a separate team dealing with the day-​to-​day work of the Security Council. During the maelstrom of activity from September to December hardly any time is spent discussing the implications of one body’s work on another. In the context of human rights issues, there are a number of obvious cases of non-​communication. First, there has often been a complete disconnection, even a contradiction, between the positions of those who debate and decide the UN’s human rights programme and those who determine the appropriate budget for human rights. Second, there is hardly any communication between those diplomats determining the UN’s involvement in the human rights aspect of peace-​keeping and peace-​building at the level of the Security Council and the diplomats responsible for the day-​to-​day evolution of the UN’s human rights programme. Third, the international lawyers developing texts which include definitions of new international crimes related to terrorism and other offences only rarely relate to the diplomats responsible for formulating priorities within their government’s human rights foreign policy. Fourth, the diplomats responsible for the Security Council’s policy with regard to human rights trouble spots will often remain distanced from the delegates and organisations who investigate the human rights situation. Lastly, we must mention the fact that questions relating to the status of women have remained fairly separate, with the risk that the ‘mainstream’ programme develops in ways which reinforce rather than alleviate the problems relating to the status of women. It would be wrong to leave the impression that this failure to communicate is solely due to the pressure of time. Some issues are deliberately kept separate and, domestically, may even span different government ministries. Governments send their career diplomats from the departments of foreign affairs to the UN General Assembly, while another set of officials from other ministries are sent to sit on the governing bodies of the various agencies such as the World Bank and the UN Development Programme.

10 This is explored in more detail below.

The General Assembly  103 The absurdity of some of this disconnectedness has been highlighted by Erskine Childers and Sir Brian Urquhart: ‘In the General Assembly governments perennially exhort ‘the organizations of the system and their governing bodies’ to take account of certain global problems or to coordinate better. In doing this governments can only be addressing themselves, as represented in the agencies’ governing bodies’.11 Even where the different issues are all dealt with within a single ministry of foreign affairs there is usually some sort of hierarchy within these ministries. Questions of military deployment, arms control, world trade and spending come high-​up. Those dealing with human rights issues come lower down the pecking order.

(c)  Disconnected from a sense of relevance In the field of human rights, the debates at the United Nations risk becoming so routine and irrelevant that delegates often lose interest in their work. After a few weeks it becomes apparent that the formal outcomes usually have minimal relevance for the victims of human rights violations. Furthermore, even attempts to strengthen the international legal regime for the protection of human rights guarantees have lost their allure.12 Projects for new or improved standards are now greeted with the reaction: ‘but we need to ensure that the existing standards are respected before embarking on another drafting exercise’.13 The oft-​repeated mantra is ‘no more standard setting, we need implementation’. Attempts at improving the existing international mechanisms have to be undertaken in the context of the new imperative for the UN and its agencies to ‘strengthen, rationalize and streamline their activities, taking into account the need to avoid unnecessary duplication’.14 This rather harsh introduction to the state of the General Assembly as it approaches its eighties has been designed to give the reader a feel for how much would have to change before this principal organ of the United Nations could play a role which actually led to useful concrete changes in the twenty-​first century. It is not being suggested that the General Assembly has achieved nothing until now. As we shall see in the next section, action by the Assembly has given us the international law and universal standards which underpin the world of human rights protection, improved the UN’s institutional machinery, and authorized some important human rights related field operations and investigative mandates. 11 Childers and Urquhart, above n 7, 30–​1. 12 Quinn, above n 2, 66–​7; see also GA Res 41/​120 (4 December 1986); P Alston, ‘Conjuring Up New Human Rights: A Proposal for Quality Control’ (1984) 78 American Journal of International Law 607–​21. 13 The Vienna Declaration and Programme of Action recognized ‘the need to maintain consistency with the high quality of existing international standards and to avoid proliferation of human rights instruments’ and reaffirmed the guidelines for the elaboration of new standards contained in GA Res 41/​120 (4 December 1986). See Vienna Declaration and Programme of Action, Vienna Conference on Human Rights, UN Doc A/​CONF.157/​23 (12 July 1993), part II para 6. 14 Vienna Declaration and Programme of Action, Vienna Conference on Human Rights, UN Doc A/​CONF.157/​ 23 (12 July 1993), part IIA, para 1. These imperatives were taken up again in the GA Res 48/​141 (20 December 1993) preambular paras 13 and 14.

104  Andrew Clapham

2.2  The General Assembly and its main committees All UN member states are represented in the General Assembly. The regular session of the General Assembly usually lasts from the second Tuesday in September to around 23 December. During that time diplomats from over 190 member states will work through an agenda which typically contains more than a hundred items. One can expect more than 200 resolutions to be adopted.15 The Plenary is the centrepiece of the General Assembly. A  number of important resolutions are adopted in the plenary without having first been discussed in one of the Main Committees. All resolutions negotiated and adopted in Committee, at any rate, have to be finally adopted by the Plenary before they can be considered resolutions of the General Assembly. In terms of its composition, the General Assembly reflects broad evolutions in the international community. For example, the dissolution of the Socialist bloc has meant that many of the countries which came under its influence now vote with the ‘West’. This reflects not only that many are now part of the European Union or would like to become more closely associated with the EU, but also in many cases a commitment to human rights. This shift, however, should not be taken to mean that all divisions have evaporated and that consensus is now the order of the day. The General Assembly’s basic work is accomplished by its six main committees, whose work is designed to provide the plenary with drafts resolutions for adoption. The most important Committee for human rights is the Third Committee, which focuses on social, humanitarian and cultural matters. It holds ‘general debates’ on self-​determination, racism, women, drugs, social development, crime prevention, children, indigenous people and, most relevantly for our purposes, human rights questions. These discussions involve delegates reading prepared statements related to these items. As with the so called ‘general debate’ by high-​level dignitaries in the first weeks there is no real ‘debate’ as such. Resolutions are drafted which reiterate a number of agreed principles and regularly request the secretariat to prepare a report or undertake a plan of action. Although in the past there were quite lively interventions on country situations and lobbying over country resolutions, today the Assembly’s subsidiary organ—​the Human Rights Council—​will most likely have already argued and adopted the relevant text. For the most part the Third Committee merely reproduces in part the substance of the resolutions adopted at the Human Rights Council,16 although, while the Council might typically adopt around thirty-​two country resolutions, the Third Committee in the same year might consider only four.17 A number of the special 15 For an analysis of the work of the General Assembly and the proportion of time spent on different aspects of the agenda over the years, see Peterson (n 3 above) which contains an appendix with an ‘Overview of the General Assembly’. For an examination of the recent issues before the General Assembly, see the various annual publications by the USA United Nations Association, A Global Agenda: Issues before the General Assembly of the United States (the series covers more than twenty years and ends with the sixtieth General Assembly). 16 For a study see S Gujadhur and T Lamarque, Ensuring Relevance, Driving Impact: The Evolution and Future Direction of the UN Human Rights Council’s Resolution System (Universal Rights Group, 2015). 17 See E Bichet and S Rutz, The Human Rights Council as a Subsidiary organ: Evaluating its Relationship with the UN General Assembly and UN Security Council (Universal Rights Group, 2016) 5–​6.

The General Assembly  105 rapporteurs appointed by the UN Human Rights Council present their reports to the Third Committee. While for some this is seen as repetitive,18 at another level airing human rights issues in New York to a different set of diplomats with another press corps could be considered as further enhancing the impact of the work of these mechanisms. Although human rights are traditionally considered to be of concern only to the Third Committee, other Committees have at times had an impact. One example would be the historic agreement forged in the Sixth Committee (legal affairs) to hold a diplomatic conference in 1998 to finalize and adopt a convention on the establishment of an international criminal court (ICC).19 As is well known, this led to the adoption of the Rome Statute. The creation of the International Criminal Court and the legal order which accompanies it represent some of the most significant steps ever taken at the UN in the field of human rights.20 Although the Sixth Committee was not formally responsible for the drafting of the Statute at the UN Diplomatic Conference in Rome in July 1998, it was the delegates from that Committee that gave the Conference the green light and those same delegates probably had the greatest impact by bringing their esprit de corps to Rome in order to achieve the adoption of the Statute. The hot house of the diplomatic conference cannot really be divorced from the bonds that had been built through the years of debate and preparatory work at the General Assembly in New York. Moreover, comprehensive resolutions of the First Committee (Disarmament and International Security) cover not only disarmament, but nuclear testing, small arms, and the export of land mines. The First Committee was the site of a human rights campaign that resulted in the adoption of a Resolution starting the process towards the drafting of a comprehensive treaty establishing common international standards for the import, export and transfer of conventional arms.21 The eventual Diplomatic Conferences held in 2012 and 2013 resulted in a text that was eventually adopted by the General Assembly as the Arms Trade Treaty (2013).22 This treaty is now in force and prohibits the authorization of transfers of conventional weapons and ammunition which would be used in the commission of genocide, crimes against humanity, or certain war crimes, and prohibits exports and imports where such a transfer could be used to commit or facilitate a serious violation of human rights law or international humanitarian law.23

18 O Bebe, ‘Strengthening Coherence between the Human Rights Council and the Third Committee’, Universal Rights (Online), December 2017, available at:  http://​www.universal-​rights.org/​blog/​strengthening-​coherence-​ human-​rights-​council-​third-​committee/​. 19 GA Res 51/​207 (17 December 1996). 20 The Statute was adopted by 120 votes to 7 with 21 abstentions on 17 July 1998 in Rome at the UN Diplomatic Conference. For a critical overview of the Statute as adopted, see A Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 European Journal of International Law 144–​71. For detailed look at the working of the Court, see W Schabas, The International Criminal Court: A Commentary on the Rome Statute (2nd edn, Oxford University Press, 2016). 21 GA Res 61/​89 (6 December 2006). 22 GA Res 67/​234B (2 April 2013) by 154 votes, 3 against and 23 abstentions. 23 For a detailed explanation see S Casey-​Maslen, A Clapham, G Giacca, and S Parker, The Arms Trade Treaty: A Commentary (Oxford University Press, 2016).

106  Andrew Clapham The Second Committee (Economic and Financial) is concerned with sustainable development, human settlements, poverty eradication, strengthening humanitarian and disaster relief assistance, permanent sovereignty for the Palestinian people, and information and communication technologies for development. The Fourth Committee (Special Political and Decolonization) covers inter alia the ‘Report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories’, decolonization and self-​determination issues. The Fifth Committee is concerned with the budget. In addition, to the Main Committees, there are a number of subsidiary bodies established by the General Assembly. The most important of these (apart from the Human Rights Council discussed below) with regard to issues of human rights are the International Law Commission, the Conciliation Commission for Palestine, the Special Committee on the Implementation of the Declaration on Decolonization, the Special Committee on Peacekeeping Operations, the UN Voluntary Fund for Victims of Torture, the Committee on the Exercise of the Inalienable Rights of the Palestinian People, and the Conference on Disarmament.24

2.3  The General Assembly’s activities (a)  The Assembly’s normative activities Rather than considering the development of international human rights instruments as a steady progression in the conceptualization of human rights, it is probably better to consider these developments as reflecting the shifting interests and power bases in the General Assembly. The history of the human rights texts adopted by the General Assembly can be explained against the background of the dominant groups at the General Assembly. The shifting power base which constitutes the majority in the General Assembly is explained by the changed composition of the United Nations. The first General Assembly meeting opened in London in January 1946 with fifty-​one nations represented. The more than 190 member states that now meet include dozens of states that were unrepresented in 1946. The 1948 Universal Declaration of Human Rights was primarily endorsed by states wishing to promote the idea of freedom from state tyranny. The Socialist bloc did not fully go along with this as they felt that the Declaration did not go far enough in demanding the economic and social conditions for these freedoms to properly flourish. In the 1960s, states emerging from colonial rule ensured the speedy adoption of a Convention on the Elimination of All Forms of Racial Discrimination. Treaties on women’s rights, torture, children’s rights, migrant worker’s rights, enforced disappearances, and persons with disabilities followed. But as the membership of the UN enlarged to include more and more decolonized and developing countries, the

24 For a full list of the subsidiary bodies see Higgins et al, above n 3, 185–​95.

The General Assembly  107 representatives from this new majority of member states became impatient with the failure of the UN to tackle issues of development and those obstacles to development which are blamed on the West. This led to a renewed focus on development (with recurring talk of a new treaty-​based right to development) despite a lack of Western enthusiasm for the topic. i. A historical milestone: adopting the Universal Declaration of Human Rights By today’s standards, the adoption of the Universal Declaration of Human Rights was incredibly quick. In December 1946, at the first session of the General Assembly it was decided to refer the issue of drafting an International Bill of Rights to the Economic and Social Council and the Commission on Human Rights. Two years later the General Assembly proclaimed the Universal Declaration of Human Rights in a resolution which was adopted by forty-​eight votes to none with eight abstentions. Commentators often describe the vision expressed in the Declaration as ‘Western’, and the drafting committee was indeed skewed Westward. Abdullahi An-​Na’im has asserted that ‘the only representatives of non-​Western countries in that committee were Chang Peng-​Chung of China and Charles Habib Malik of Lebanon. Both had been educated in American universities, and both reflected their ‘westernization’ in the positions they took during the debates’.25 For An-​Na’im the lack of concern for cultural legitimacy ‘may have diminished the validity of international human rights standards as seen from non-​ Western cultural perspectives’.26 The Universal Declaration is certainly impoverished by the fact that the main influences seem to have come from Latin America, the Soviet Union, the United States and Europe and not from a wider variety of cultures.27 But few states now question the commitments contained in the Universal Declaration. The major controversy at the time of the adoption was not the validity of the values contained in the Declaration but rather, as already mentioned, the antagonism between the Socialist states and the West. In the end the Socialist states were unable to achieve the degree of prominence for economic and social rights they wanted and eventually abstained (along with Saudi Arabia and South Africa).28 25 A An-​Na’im, ‘Problems of Universal Cultural Legitimacy for Human Rights’ in A An-​Na’im and F Deng (eds), Human Rights in Africa: Cross-​Cultural Perspectives (Brookings Institution Press, 1990) 331–​67, 350. For an account of the drafting from the inside, see J Humphrey, Human Rights and the United Nations: A Great Adventure (Transnational Publishers, Inc, 1984) 1–​77. 26 An-​Na’im and Deng, n 25, 352. 27 See L Sohn, ‘How American International Lawyers Prepared for the San Francisco Bill of Rights’ (1995) 89(3) American Journal of International Law 540–​53, and J Burgers, ‘The Road to San Francisco: The Revival of the Human Rights Idea in the Twentieth Century’ (1992) 14 Human Rights Quarterly 447–​77. 28 The Soviet-​led abstentions were: Byelorussia; Czechoslovakia; Poland, Soviet Union; Ukraine; and Yugoslavia. Cassese has described how the Soviet conception demanded that human rights would be implemented by the state alone without international interference, and that certain civil rights, such as freedom of association and expression, should only be permitted within a democratic framework and should be limited where they tended towards fascism. Although these demands were not met, they set the stage for the ideological cold war confrontations over human rights for the next decades: A Cassese, Human Rights in a Changing World (Temple University Press, 1990) 24–​47. Saudi Arabia and South Africa also abstained. South Africa argued that the Declaration would, even though it was not an international convention, ‘impose certain obligations on member States if it were accepted by the General Assembly, as it would be interpreted as an authoritative definition of fundamental rights and freedoms which had been left undefined by the Charter’. The head of the South African delegation went on to state that the Declaration went ‘far beyond the rights and freedoms contemplated in the Charter. It was clear from the provisions of the Charter that social, cultural and economic rights had never been intended to be included in the

108  Andrew Clapham Over the years new perspectives have been added to the human rights catalogue, for example the adoption of resolutions on independence for colonial countries and peoples, the right to self-​determination, on natural resources, on the new international economic order, and on the right to development addressed some of the questions of inequality between states and the fundamental structural problems of the international order. The Universal Declaration of Human Rights should not be seen as ‘exhaustive but only exemplary’29 of the human rights and fundamental freedoms referred to in the UN Charter. An evaluation of the relevance of the Universal Declaration today would have to conclude that the Declaration has had a huge influence, both in terms of spreading the philosophy of human rights, and in terms of inspiring legal texts and decisions. Translated into over 500 languages, the Declaration has often been at the heart of demands made by peoples and individuals around the world that their rights be respected and protected. Several constitutions have taken its provisions as the basis for a bill of rights;30 and national and international courts have subsequently invoked the Declaration in their judgments. The member states of the United Nations have come to acknowledge that the Declaration gives rise to a real obligation.31 In 1968 the Teheran International Conference (the first World Conference on Human Rights) ‘solemnly’ proclaimed that: 2. The Universal Declaration of Human Rights states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community.32

The second World Conference on Human Rights, held in Vienna in 1993, reaffirmed states’ commitment to the purposes and principles contained in the Universal Declaration of Human Rights and emphasized that the Declaration ‘constitutes a common standard of achievement for all peoples and all nations’.33 The universal nature of the obligations contained in the Universal Declaration means that, when a political organ such as the General Assembly moves to hold a member state accountable draft declaration’. See 182nd plenary meeting (10 December 1948) summary records 910-​1. Although Saudi Arabia abstained, she was present at the 1968 Teheran World Conference on Human Rights which proclaimed that the Declaration ‘states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community’. For a discussion of all the abstentions and the arguments made at the time, see J Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (University of Pennsylvania Press, 1999) 21–​8. 29 See K Partsch in B Simma (ed), The Charter of the United Nations: A Commentary (Oxford University Press, 1995) 779, referring to UN Charter, Article 55(c). 30 H Hannum, ‘The Status of the Universal Declaration of Human Rights in National and International Law’ (1995) 25 Georgia Journal of International and Comparative Law 287–​397. 31 Compare the position in H Lauterpacht (ed), Oppenheim’s International Law (8th edn, Longman, 1955) vol I, para 340 with that expressed in A Watts and R Jennings (eds), Oppenheim’s International Law (9th edn, Longman, 1992) paras 433 and 437. 32 Final Act of the International Conference on Human Rights, UN Doc A/​CONF.32/​41 (13 May 1968). 33 UN Doc A/​CONF.157/​23 (n 12 above) preambular paras 3 and 7, reproduced in B Boutros-​Ghali, The United Nations and Human Rights: 1945–​1995 (Department of Public Information, 1995) 448–​64.

The General Assembly  109 for human rights violations, the norms found in the Declaration will often form the framework for the alleged violations.34 Even where the state subject to the censure of the General Assembly is a party to a relevant human rights treaty, the preference will be to use the language and norms of the Universal Declaration in order to be able to attract the greatest support for the resolution.35 By proclaiming the Universal Declaration in 1948, and continually reaffirming the obligations which stem from it, the General Assembly has given universal meaning to the phrase ‘human rights’. But the concept of human rights is a dynamic rather than a static one, and the Assembly has been at the centre of refining and elaborating on the rights broadly proclaimed in the Universal Declaration. Moreover the Assembly has been the scene for the adoption of the treaties that elaborate not only international obligations for the states parties, but also provide international monitoring mechanisms. ii. Treaty-​making The same General Assembly resolution that proclaimed the Universal Declaration of Human Rights instructed the Commission on Human Rights to prepare, as a matter of priority, a draft covenant on human rights together with draft measures of implementation, and to examine further the question of a right of petition.36 Disagreement soon arose about whether economic and social rights could give rise to the same kinds of obligations as civil and political rights. The General Assembly responded by asking the Commission to draft two separate covenants on human rights, ‘one to contain civil and political rights and the other to contain economic, social and cultural rights, in order that the General Assembly may approve the two covenants simultaneously and open them at the same time for signature’.37 By 1954 the General Assembly had before it the two draft Covenants and for the next twelve years there was article-​by-​article discussion.38 On 16 December 1966 the General Assembly adopted three instruments: the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and the Optional Protocol which provides for individual complaints with regard to violations of this last Covenant. An additional protocol to the Covenant on Economic, Social and Cultural Rights, providing for complaints submitted by individuals or groups of individuals, was finally adopted by the General Assembly in 2008.39 34 See for example, GA Res 50/​194 (11 March 1996) on the human rights situation in Myanmar (which was not at the time a party to either of the two International Covenants). 35 See for example, GA Res 50/​199 (11 March 1996) on the human rights situation in Nigeria. 36 GA Res 217 E (III) (10 December 1948). 37 GA Res 543 (VI) (5 February 1952). 38 See generally, M Bossuyt, Guide to the ‘Travaux Préparatoires’ of the International Covenant on Civil and Political Rights (Martinus Nijhoff, 1987); M Craven, The International Covenant on Economic, Social and Cultural Rights (Oxford University Press, 1995); D McGoldrick, The Human Rights Committee (Clarendon Press, 1991); M Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel, 2005); L Henkin (ed), The International Bill of Rights: The Covenant on Civil and Political Rights (Columbia University Press, 1981); J Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Pennsylvania University Press, 1999); M Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House, 2001). 39 GA Res 63/​117 (10 December 2008).

110  Andrew Clapham Together with the Universal Declaration of Human Rights these treaties make up what is often known as ‘The International Bill of Rights’. But the General Assembly’s treaty making activity has gone way beyond this set of treaties. Even before the adoption of the Universal Declaration of Human Rights, the General Assembly had already adopted the Convention on the Prevention and Punishment of the Crime of Genocide.40 In subsequent years a pattern emerged whereby the Commission on Human Rights would select a human rights topic and draft a declaration. This text in turn was eventually adopted by the General Assembly through a resolution containing the relevant declaration. The normal course of events would then be that a new drafting exercise would begin. The Commission would take the Assembly’s declaration and redraft it so that it might be adopted by the Assembly as a treaty. Adoption of this new text by the Assembly would open up the treaty for signature and ratification by states. In this way (once the treaty enters into force) the obligations contained in the text become binding obligations as a matter of international treaty law. Treaties such as the Convention on the Elimination of All Forms of Racial Discrimination,41 the Convention on the Suppression and Punishment of the Crime of Apartheid,42 the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,43 the Convention on the Rights of the Child,44 and the International Convention for the Protection of All Persons from Enforced Disappearance,45 were all based on texts originally drafted by the Commission on Human Rights and later adopted by the General Assembly. In some cases, the Assembly chose to tackle human rights treaties without waiting for a draft from other UN bodies. This was the case with the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the Convention on the Rights of Persons with Disabilities.46 In a separate context the Assembly adopted the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (prepared by the Social Commission).47 The Assembly also adopted conventions drafted by the Commission on the Status of Women:48 the Convention on the Political Rights of Women,49 the Convention on the Nationality of Married Women,50 the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages,51 and 40 GA Res 260 A (III) (9 December 1948). See P Gaeta (ed), The UN Genocide Convention (Oxford University Press, 2009). 41 GA Res 2106 A (XX) (25 February 1997). 42 GA Res 3068 (XXVIII) (30 November 1973). 43 GA Res 39/​46 (10 December 1984). Note the Declaration on the Protection of All Persons from Being Subjected to Torture and Other, Inhuman or Degrading Treatment or Punishment, GA Res 3452 (XXX) (9 December 1975) was drafted by the General Assembly without input from the Commission. 44 GA Res 44/​25 (20 November 1989). 45 GA Res 61/​177 (12 January 2007). 46 GA Res 45/​158 (18 December 1990); Final report of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, UN Doc A/​61/​611 (6 December 2006). 47 GA Res 317 (IV) (2 December 1949). 48 See Chapter 7 by Z Arat in this volume. 49 GA Res 640 (VII) (20 December 1952). 50 GA Res 1040 (XI) (29 January 1957). 51 GA Res 1763 A (XVII) (7 November 1962).

The General Assembly  111 the Convention on the Elimination of All Forms of Discrimination against Women.52 This list is not exhaustive. The General Assembly’s involvement in the treaty-​making process extends way beyond the few treaties listed above, and of course many treaties drawn up outside the human rights framework have implications for the world of human rights. We might mention here the multiple treaties that deal with terrorist crimes, which may include human rights clauses related to the treatment of suspects.53 Despite the Assembly’s role in the elaboration of human rights treaties, it has failed to really examine the effectiveness of the legal regimes that it has created. Nor has the Assembly taken much interest in the treaty bodies that have been established to monitor these treaties, although one might note that World Summit Outcome document where the assembled Heads of State and Government resolved ‘to improve the effectiveness of the human rights treaty bodies, including through more timely reporting, improved and streamlined reporting procedures and technical assistance to States’.54 One human rights treaty issue, which does surface from time to time at the Assembly, is the need to withdraw or restrict reservations to the human rights treaties. In particular the large number of reservations to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) considerably reduces its effect. The question of enhancing the effectiveness of the treaty body regime will continue to surface at the General Assembly, although radical reform remains elusive due to the complex nature of the interlocking treaty regimes.55 The Assembly did adopt an important Resolution in 2014 on strengthening the system,56 and is due to revisit the question in 2020.57 52 GA Res 34/​180 (18 December 1979). 53 See for example the International Convention for the Suppression of Terrorist Bombings (1997), Article 14; and the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 1988, and its Protocol (2005), Article 8bis; and the Convention on the Safety of United Nations and Associated Personnel New York (1994), Article 8. 54 2005 World Summit Outcome, GA Res 60/​1 (16 September 2005), para 125. 55 For some of the key documents see GA 43/​115 (8 December 1988) and the interim reports by P Alston, Effective Implementation of International Instruments on Human Rights, Including Reporting Obligations under International Instruments on Human Rights, UN Docs A/​44/​668 (8 November 1989) and A/​CONF.157/​PC/​62/​ Add.11/​Rev.1 (22 April 1993), and the final report, UN Doc E/​CN.4/​1997/​74 (27 March 1997) annex. Report of the Secretary-​General, Effective functioning of bodies established pursuant to the United Nations human rights instruments, UN Doc E/​CN.4/​1998/​85 (4 February 1998); Add.1 (16 March 1998); Corr.1 (23 February 1998) contains comments of governments, UN bodies and non-​governmental organizations. See further the two major papers by the High Commissioner. The first was the ‘Concept Paper’ UN Doc HRI/​MC/​2006/​2 (22 March 2006). For discussion, see M O’Flaherty and C O’Brien, ‘Reform of UN Human Rights Treaty Monitoring Bodies: A Critique of the Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body’ (2007) 7 Human Rights Law Review 141–​72; and M Bowman, ‘Towards a Unified Treaty Body for Monitoring Compliance with UN Human Rights Conventions? Legal Mechanisms for Treaty Reform’ (2007) 7 Human Rights Law Review 225–​49. The second is Strengthening the United Nations Human Rights Treaty Body System June 2012. See further M Bassiouni and W Schabas (eds), New Challenges for the UN Human Rights Machinery. What Future for the UN Treaty Body System and the Human Rights Council Procedures? (Intersentia, 2012). 56 See Report of the co-​facilitators on the intergovernmental process of the General Assembly on strengthening and enhancing the effective functioning of the human rights treaty body system, General Assembly, 68th Session, UN Doc A/​68/​832 (9 April 2014); M O’Flaherty ‘The Strengthening Process of the Human Rights Treaty Bodies’ (2014) 108 Proceedings of the Annual Meeting (American Society of International Law), 285–​8; GA Res 68/​268 (9 April 2014); and background document Letter dated 14 November 2013 from the High Commissioner for Human Rights addressed to the President of the General Assembly, General Assembly, 68th Session, UN Doc A/​68/​606 (19 November 2013). 57 A full set of documents and meeting reports related to the process of treaty body strengthening and reform from can be found at: https://​www.geneva-​academy.ch/​our-​projects/​our-​projects/​un-​human-​rights-​mechanisms/​ detail/​16-​academic-​platform-​on-​treaty-​body-​review-​2020.

112  Andrew Clapham iii. Resolutions The General Assembly’s law-​making activity, of course, is not restricted to the production of human rights treaties. In many cases the General Assembly’s resolutions contain declarations which are of considerable legal significance in their own right. In 2000 alone, for example, the General Assembly passed resolutions on such diverse human rights topics as the right to universal freedom of travel, human rights defenders, human rights and cultural diversity, the use of mercenaries as a means of violating human rights, the rights of the child, torture and other cruel, inhuman or degrading treatment or punishment, the rights of migrant workers, the impact of globalization on human rights, enforced or involuntary disappearances, human rights and extreme poverty, the right to development, the administration of justice, human rights and the human genome, mass exoduses and human rights, unilateral coercive measures and human rights. In addition there are a number of items on the Assembly’s agenda which have a more or less explicit bearing on human rights (rule of law, HIV, economic embargoes, criminal justice, corruption, development, disarmament, smuggling of aliens, drugs, trafficking in women). A great deal of these resolutions may seem overly general at first sight, and not to be of much value for the purposes of elucidating the content of human rights norms. They nonetheless provide a basis from which human rights standards can be expounded. Scholarly debate, of course, has raged over the legal status of certain declarations contained in General Assembly resolutions.58 In some cases the content and manner of adoption led to the conclusion that such declarations are evidence of the crystallization of norms of customary international law. In fact, the International Court of Justice has used some of these declarations as a sort of short cut to determining the applicable law in its opinions and judgments.59 It is probable that in the case of human rights the burden of proof for determining their status as customary international law will be different from that necessary to concretize a rule in a different context. Indeed, it is precisely because of persistent breaches that human rights are made into internationally binding standards. This suggests that the continuing violation of those rights does not diminish the force of the promise to respect them. Defining as general international law those human rights which have been elaborated and adopted by the General Assembly in resolutions has a number of important effects.60 First, it ensures that human rights do not become thought of as pure ‘creative 58 See M Öberg, ‘The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’ (2006) 16 European Journal of International Law 879; G Abi-​Saab, ‘Diplomatie multilatérale et développement du droit international:  le rôle des résolutions de l’Assemblée générale’ in VY Ghebali and D Kappeler (eds), Multiple Aspects of International Relations (Bruylant, 1995) 83–​99; J Charney, ‘Universal International Law’ (1993) 87 American Journal of International Law 529–​51; B Sloan, United Nations General Assembly Resolutions in Our Changing World (Transnational Publishers, 1991); O Schachter, International Law in Theory and Practice (Martinus Nijhoff, 1991) 84–​94; A Cassese and J Weiler (eds), Change and Stability in International Law-​Making (De Gruyter, 1988) 33–​62; R Higgins, The Development of International Law through the Political Organs of the United Nations (Oxford University Press, 1963). 59 See for example, Western Sahara (Advisory Opinion) [1975] ICJ Rep 12 paras 55–​9; Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Judgment) [1986] ICJ Rep 14 paras 188, 193, and 195. 60 Among the key Declarations are the Declaration on the Elimination of Violence against Women, GA Res 48/​ 104 (20 December 1993), and the Declaration on the Right and Responsibility of Individuals, Groups and Organs

The General Assembly  113 writing’ but rather become part and parcel of the legal rights and principles which affect decision-​making in both the political and judicial spheres. Second, it identifies legal obligations for states that are not party to the human rights treaties. Third, reliance on customary international law or general principles of international law may often be persuasive, if not decisive, in domestic courts. But rather than attempting to determine whether declarations of principles by the General Assembly are legally binding as black letter law, it seems more pertinent to assess their increasing practical influence at both the international and the national level. If we set aside the search for state practice to prove that customary international law has emerged, and accept instead that the various declarations of human rights proclaimed, or adopted, by the General Assembly are a crystallization of principles accepted by the international community, we discover a seam of consensus. Moreover if one recasts these rights as encapsulating principles, we can better see how they actually attach to other sources of law, such as treaties and custom, and in turn persuade decision-​makers of the content of these ‘harder’ laws. It is this interpretative and explanatory function which makes the General Assembly resolutions so important in the world of human rights law. As legal principles they should come to exert increasing influence on legal systems and decision makers.61 Sometimes described as ‘soft law’ these declarations clearly harden when conceived of as declaratory of customary international law,62 explanatory of treaty law, or as principles which persuade decision-​makers when faced with ambiguity.63 One should be careful, however, to examine the content and circumstances of the adoption of the relevant resolutions before drawing legal conclusions. In the 1996 Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons, the Court noted that those states which consider the use of nuclear weapons illegal consider the relevant General Assembly resolutions to be a confirmation of customary law and that these resolutions created no new rules. According to these states, the negative votes cast in the Assembly were of no relevance. The Court recalled that: ‘Examined in their totality, the General Assembly resolutions put before the Court declare that the use of nuclear weapons would be a “direct violation of the Charter of the United Nations”; and in certain formulations that such

of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/​144 (8 March 1999). 61 See, for example, Prosecutor v Tadic (Judgment) ICTY-​94-​1-​A (15 July 1999) para 112 which quoted extensively GA Res 2444 (19 December 1968) and GA Res 2675 (9 December 1970) in order to justify its conclusion that the Tribunal had jurisdiction over certain acts in an internal conflict. Both resolutions had been adopted with no negative votes and the Tribunal found them to be ‘declaratory of the principles of customary international law’. 62 Consider the dissenting opinion of Vice-​President Schwebel in Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 para 6: ‘If a resolution purports to be declaratory of international law, if it is adopted unanimously (or virtually so, qualitatively as well as quantitatively) or by consensus, and if it corresponds to state practice, it may be declaratory of international law.’ 63 On the use of General Assembly resolutions containing human rights declarations by the International Court of Justice, see F Francioni, ‘International “Soft Law”: A Contemporary Assessment’ in A Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Grotius Publications, 1996) 167–​78, especially 170–​4.

114  Andrew Clapham use “should be prohibited”.’64 The Court, however, then went on to deny that the resolutions in question were evidence of customary international law. Two reasons were given. First, ‘several of the resolutions under consideration in the present case have been adopted with substantial numbers of negative votes and abstentions; thus, although those resolutions are a clear sign of deep concern regarding the problem of nuclear weapons, they still fall far short of establishing the existence of an opinio juris’.65 Second, the Court pointed out that there would have been no need for General Assembly resolutions qualifying the legal nature of nuclear weapons and their effects if there were already specific rules of customary international law which prohibit such weapons.66 The Court neatly summarizes its approach: The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a norm or the emergence of opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of the rule.67

Nearly all the resolutions which contain declarations relating to human rights were adopted by consensus and were adopted after a long period of drafting and debate. The Court’s conditions for these resolutions to have normative value are therefore satisfied as long as the statements made at the time of adoption do not contradict a sense that there is an opinio juris that the texts have a normative character.68 Resolutions may encapsulate the opinion of states with regard to the interpretation of existing international law. An example is the Declaration on the Elimination of Violence against Women,69 which was adopted by the General Assembly by consensus. It is an expression of the states’ interpretation of their obligations under the Convention on the Elimination of All Forms of Discrimination against Women as well as their international law obligations under the Charter and customary international law. A further example is the Declaration on the Protection of All Persons from Enforced Disappearance, adopted by consensus by the General Assembly.70 The wording is

64 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 para 71. 65 Ibid. 66 Ibid, para 72. 67 Ibid, para 70. 68 See, for more detail, the work of the International Law Commission on the identification of customary international law, Conclusion 12, ‘Resolutions of international organizations and intergovernmental conferences’ and the commentary in Report of the International Law Commission, UN Doc A/​73/​10 (2018), especially 147–​9. 69 GA Res 48/​104 (20 December 1993). 70 GA Res 47/​133 (18 December 1992).

The General Assembly  115 clearly intended to confirm that certain acts violate legal obligations contained in specific rules of international law.71 iv. Programmes of action A number of policy documents and programmes of action also have some impact on how decisions are taken at the national level. The persuasiveness of these action plans adopted by the General Assembly comes not from their status in the legal hierarchy but rather from their immediate relevance and non-​legal formulations. These documents catalogue neither rules nor principles. They do however offer guidance and in fact are sometimes labelled ‘guidelines’. Many of the recommendations are packaged as programmes of action such as the one for the Third Decade to Combat Racism and Racial Discrimination. These recommendations to states are often relied on by activists and non-​governmental organizations who are able to hold their governments to the promises they made by accepting these resolutions at the General Assembly.72 The multiple Summits and World Conferences organized by the United Nations over the last thirty years have set a heady agenda of recommendations and programmes for the UN and its member states. The recommendations are to be followed up by Governments with the General Assembly continually meeting to remind governments of their obligations and refine the recommendations. It is a truism to say that the proof of the worth of such Conferences and Summits is in the follow-​up and implementation. The celebratory round of mega-​meetings held away from headquarters (Rio, Vienna, Cairo, Copenhagen, Beijing, Istanbul, and Rome) were heralded as part of the UN’s rebirth as it turned sixty.73 As states complain about summit fatigue and the costs of these gatherings it seems that future meetings are more likely to take place at the General Assembly again. It is conventional wisdom that the key to implementation of the declarations, agenda, and programmes of action depends on the thousands of non-​ governmental organizations that come from all over the world to attend these conferences and participate in the agenda setting activity. Shifting these world conferences and summits back to the General Assembly may one day lead to a revised approach to the participation of non-​governmental organizations in the work of the General Assembly. Part of the reason for the disconnected nature of the Assembly’s products over the years has been ‘inadequate attention to the demands and suggestions of NGOS’.74 The formal 71 ‘2. Any act of enforced disappearance places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families. It constitutes a violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of the person and the rights not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also violates or constitutes a grave threat to life.’ 72 The programs of action can include quite detailed recommendations. For example, the Programme of Action for the Third Decade to Combat Racism and Racial Discrimination (1993–​2003) ‘recommends that Member States encourage the participation of journalists and human rights advocates from minority groups and communities in the mass media. Radio and television programmes should increase the number of broadcasts produced by and in cooperation with racial and cultural minority groups.’ See GA Res 48/​91 (20 December 1993) para 22, annex. 73 See United Nations Conferences: What do they Accomplish? (Department of Public Information, 1996). 74 See A Cassese ‘The General Assembly: Historical Perspective 1945–​1989’ in the first edition of this book, 25–​54,  52.

116  Andrew Clapham arrangements remain minimal,75 although NGOs continue to make the case for a more meaningful role.76 v. Country situations The General Assembly has a fairly long history of highlighting specific human rights situations. In a study on this issue, Menno Kamminga refers to the resolutions on: the discriminatory treatment of Indians in South Africa res 44(I) (8 December 1946); exit visas for Russian wives of foreign nationals, res 285 (III) (25 April 1949), the observance of human rights in Bulgaria and Hungary in special relation to the trials of church leaders, res 272 (30 April 1949); the 1951 three member Commission on the Racial Situation in the Union of South Africa,77 and the establishment in 1968 of a Special Committee to Investigate Israeli Practices Affecting the Population of the Occupied Territories (res 2442 (XXIII)).78 Generally speaking the General Assembly devotes a few resolutions each year to the situation of specific countries. The resolutions often contain specific denunciations of certain practices contrary to human rights. In more recent times Afghanistan, Belarus, Bosnia and Herzegovina, Cambodia, Central America, the Democratic People’s Republic of Korea, the Democratic Republic of Congo, the former Yugoslavia (‘parts of South-​eastern Europe’ Kosovo, Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia), Haiti, Iran, Iraq, Lebanon, Myanmar, Rwanda, Sudan, Syria, Turkmenistan, and Uzbekistan have all been the object of General Assembly resolutions. Each year, since 1970, the General Assembly has adopted a resolution on ‘Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including Jerusalem’. Most of these human rights resolutions were follow-​up resolutions to texts adopted by the Human Rights Commission or more recently by the Human Rights Council. However, on occasion the Assembly took the initiative to express its concern about the human rights situation in a country even before the issue had been dealt with formally by the Commission. This was the case, for example, for Myanmar, Sudan, and Nigeria. More recently the General Assembly adopted two resolutions on the situation of human rights in Iran without referring to any resolution of the Council or the Commission.79 In 2012 the Assembly sought to increase the pressure on the Syrian Government with a resolution that strongly condemned ‘the continued widespread and systematic violations of human rights and fundamental freedoms by the Syrian authorities, such as the use of force against civilians, arbitrary executions, the killing and persecution of protestors, human rights defenders and journalists, arbitrary detention, enforced disappearances, interference with access to 75 ECOSOC Dec 1996/​297 (25 July 1996) recommended that the General Assembly examine ‘the question of the participation of non-​governmental organizations in all areas of the work of the United Nations’ this was to be done in the light of the expanded consultation and participation arrangements adopted by ECOSOC Res 1996/​ 31 (25 July 1996) which state in para 67(f) that ‘The Secretary-​General shall be authorized, within the means at his disposal, to offer to non-​governmental organizations in consultative relationship facilities that include: (f) Appropriate seating arrangements and facilities for obtaining documents during public meetings of the General Assembly dealing with matters in the economic, social and related fields.’ 76 See for example https://​www.globalpolicy.org/​component/​content/​article/​177/​31757.html. 77 For a discussion of the significance of this and the report of the Commission, see Cassese, above n 28, 33–​5. 78 M Kamminga, Inter-​State Accountability for Human Rights Violations (University of Pennsylvania Press, 1992). 79 GA Res 63/​191 (18 December 2008) and GA Res 64/​176 (18 December 2009).

The General Assembly  117 medical treatment, torture, sexual violence and ill-​treatment, including against children’.80 In 2016, frustrated by the unwillingness of the Security Council to refer the situation in Syria to the International Criminal Court or take other meaningful action to end the violence in Syria, the General Assembly adopted a Resolution to preserve the evidence of atrocity crimes being committed in Syria for future prosecution.81 It is generally only certain forms of human rights violations that will steer the General Assembly into action. Concern may be voiced over a variety of human rights violations including torture, extrajudicial killings, prison conditions, child labour, child prostitution, discrimination against women, repression, and minority discrimination. Violations of international humanitarian law are also often condemned by the General Assembly. The Assembly does not always shy from mentioning very specific instances of human rights violations. In 2000, for example, it called upon the government of Iran to ensure a fair trial for ‘thirteen members of the Iranian Jewish community who had been arrested by that government’. Indeed, the General Assembly has adopted resolutions concerning specific individual cases such as Ziad Abu Eain, Nelson Mandela, Aung San Suu Kyi, Salman Rushdie, and Ken Saro Wiwa. The Assembly also passed resolutions calling for the commutation of death sentences for named members of the African National Congress.82 It might be said that the General Assembly has carved out the parameters of international solidarity in the field of human rights. One might suggest three important principles. First, resolutions by the General Assembly expressing international concern with human rights in certain situations do not constitute an interference in the internal affairs of the country concerned.83 Secondly, the resolutions related to individuals, whether related to the commutation of the death sentences, or the release of Aung San Suu Kyi did not attract negative votes. This suggests that states do not object to the principle that the Assembly can demand action with regard to the human rights of named individuals.84 Third, the General Assembly has recognised that ‘the promotion and protection of all human rights is a legitimate concern of the international community’,85

80 GA Res 66/​253 (21 February 2012), voted 137 in favour to 12 against, with 17 abstentions. 81 GA Res 71/​248 (21 December 2016), creating the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011. For the terms of reference of this subsidiary body see UN Doc A/​71/​755 (19 January 2017), annex. 82 See GA Res 37/​1 (4 October 1982); GA Res 37/​68 (7 December 1982); GA Res 44/​1 (23 October 1989). For a general discussion of resolutions in the UN organs with regard to named individuals, see Kamminga, above n 78, ch 2.2.4. 83 According to Ermacora: ‘The adoption of resolutions directed towards a state, fact-​finding, and reporting about a state are not, as a rule, regarded as intervention.’ See The Charter of the United Nations: A Commentary, above n 29, 139–​54, 150, in reference to UN Charter, Article 2(7); see also Higgins et al, above n 3, 56–​7, quoting Jennings and Watts who state that it is clear that Article 2(7) does not exclude actions, short of dictatorial interference, undertaken with a view to implement the purposes of the Charter. Thus with regard to the protection of human rights and freedoms—​a prominent feature of the Charter—​the prohibition of the intervention does not preclude study, discussion, investigation and recommendation on the part of the various organs of the United Nations’, R Jennings and A Watts (eds), Oppenheim’s International Law (9th edn, Longman, 1996) 448–​9. 84 This was not always the case: see Cassese, above n 74. 85 See GA Res 48/​141 (20 December 1993), para 2. See also the Vienna Declaration and Programme of Action, UN Doc A/​CONF.157/​23 para 4. Compare with the Document of the Moscow Meeting on the Human Dimension of the CSCE (1991) 30 ILM 1670, 1672.

118  Andrew Clapham and that it is therefore expected that states will cooperate with the United Nations human rights bodies and allow them to carry out fact-​finding missions. vi. Requesting advisory opinions from the International Court of Justice It is probably fair to say that when the possibility of the General Assembly soliciting advisory opinions from the International Court of Justice (ICJ) was included in Article 96, paragraph 1 of the Charter, it was not particularly foreseen that this could be used for the purposes of advancing human rights (although nor was it excluded: the GA can solicit opinions ‘on any legal question’86). Although none of the General Assembly’s demands have been exclusively focused on human rights, four have had human rights components. The first is the request for an advisory opinion on the use of nuclear weapons. The General Assembly asked: ‘Is the threat or use of nuclear weapons in any circumstance permitted under international law?’87 The resolution did not contain any explicit reference to human rights, but it did refer to the existence of ‘serious risks to humanity’, and reminded the Court that the Assembly had in the past described the use of nuclear weapons as a ‘crime against humanity’. The eventual advisory opinion went beyond the question of crimes against humanity, and tackled the question of the ‘right to life’ under the International Covenant on Civil and Political Rights.88 In 2003 the General Assembly requested the International Court of Justice to render an advisory opinion on ‘the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-​ General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions.’89 Again the Court delivered an Opinion which has important implications for the scope and application of human rights law. The reader is referred for further detail to the Chapter on the International Court of Justice in the present volume. In 2008, the General Assembly requested the Court to render an advisory opinion to answer the question:  ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-​Government of Kosovo in accordance with international law?’90 The Court’s Opinion steered clear of any pronouncement on the relevance of the right to self-​determination but the pleadings before the Court clarified where different states stood on the application of this human right to such a situation.91 In 2017 the Assembly adopted a Resolution requesting an advisory opinion of the International Court of

86 UN Charter, Article 96. 87 GA Res 49/​75[K]‌(15 December 1994). 88 V Gowlland-​Debbas, ‘The Right to Life and Genocide: The Court and an International Public Policy’ in L Boisson de Chazournes and P Sands (eds), International Law, the International Court of Justice and Nuclear Weapons (Cambridge University Press, 1999) 315–​37. 89 GA Res ES-​10/​14 (12 December 2003). 90 GA Res 63/​3 (8 October 2008). 91 See further (2011) 24 Leiden Journal of International Law 71–​161 (special issue).

The General Assembly  119 Justice on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965.92 Such ICJ advisory opinions certainly take forward our understanding of the scope of international law. Issues of compliance in the wake of such opinions will inevitably arise. In 2003, the General Assembly followed up on the Court’s Opinion on the wall by adopting a resolution demanding that Israel ‘comply with its legal obligations as mentioned in the advisory opinion’, called on member states to comply with their legal obligations, and asked the Secretary-​General to set up a register of all damage caused by the wall.93 A few weeks after the Advisory Opinion on the declaration of independence in Kosovo the General Assembly adopted a resolution backed by Serbia, calling for opening a dialogue between Serbia and Kosovo.94

(b)  The General Assembly’s institutional activities The General Assembly is involved in a host of institutional activities related to the UN, where its decisions and resolutions can make a difference in terms of human rights. Its budgetary responsibilities, in particular, affect the way the Office of the High Commissioner works. The Credentials Committee decides who is authorized to represent the various member states. In cases where sovereignty over a territory is disputed, or where a government’s claim to represent the state is being challenged, attention may focus on the extent to which the Credentials Committee might be used as a lever to promote democracy.95 One commentator, analysing the Committee’s decisions in the cases of Haiti, Sierra Leone, Cambodia, Liberia, and Afghanistan, found that the Credentials Committee fell far short of considering respect for the ‘democratic entitlement’ a sine qua non for participation in the Assembly, on the other hand respect for human rights was at least part of the Committee’s overall equation.96 Of particular interest under the heading of the Assembly’s institutional activities are the relationship with the Security Council, the creation of the High Commissioner for Human Rights, and the Human Rights Council. i. The General Assembly and the Security Council One of the central tensions in the General Assembly’s work has to do with its relationship to the Security Council. It is well known that several member states are frustrated that the Security Council is unrepresentative. Most governments have little chance to 92 GA/​Res/​71/​292 (22 June 2017)  by a vote of ninety-​four votes in favour to fifteen against with sixty-​ five abstentions; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (25 February 2019). 93 GA Res ES-​10 (20 July 2004). 94 GA Res 64/​298 (9 September 2010). 95 G Fox, ‘The Right to Political Participation in International Law’ (1992) 17 Yale Journal of International Law 539, 588–​607. 96 M Griffin, ‘Accrediting Democracies:  Does the Credentials Committee of the United Nations Promote Democracy Through its Accreditation Process, and Should it?’ (2000) 32 New  York University Journal of International Law and Politics; see also Higgins et al, above n 3, 183–​4.

120  Andrew Clapham participate in the decision-​making process in the Security Council and the escalation of activity in that organ following the end of the Cold War has left the majority of the General Assembly feeling excluded. In turn, this has highlighted the relative impotence of the General Assembly. Although the UN Charter states in Article 12(1) that the General Assembly shall not make any recommendations while the Security Council is exercising its functions with regard to a dispute or situation, this rule has not inhibited the Assembly in the past from adopting resolutions and making demands on the Security Council.97 According to observers and the Legal Counsel of the UN, the General Assembly has ‘consistently interpreted the expression “is exercising” to mean “is exercising at this moment” ’, and this has allowed the Assembly to make recommendations even when situations are on the Security Council Agenda, with little or no protest from the Security Council.98 In the wake of the Security Council’s inaction in the face of the genocide in Rwanda, and its inability to agree measures with regard to military action over Kosovo, there were great expectations around the 2005 Summit (the High-​Level Meeting of the 60th Session of the UN General Assembly) that the Security Council could be cajoled into making a greater commitment to taking action in the face of massive threats to the lives of civilians. The first crucial paragraph states: 138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it.99

Schabas asks us to note that the commitment by each individual state is to its population and not anyone else’s.100 This first-​level set of responsibilities confirms the ­customary nature of these rights and obligations, and makes it impossible for a state to rebuff concern about these issues by declaring that they are matters of domestic concern. The public commitment in the UN context ensures that failure to fulfil these responsibilities to protect becomes a matter of legitimate concern for other states and the UN. 97 C Tomouschat, ‘The General Assembly’ in R Wolfrum (ed), United Nations:  Law, Policies and Practice (Martinus Nijhoff, 1995) 548–​57, especially 555; and see Higgins et al, above n 3, 57–​61. 98 K Hailbronner and E Klein, ‘Article 12’ in B Simma (ed), The Charter of the United Nations: A Commentary (Oxford University Press, 1995) 254, 256–​60 at 256; but see the complaints by Syria and South Africa with regard to the General Assembly ignoring the letter of Article 12 in the adoptions of the resolution creating the mechanism for war crimes in Syria (discussed above) UN Doc A/​71/​PV.66 (21 December 2016), where the matter was resolved by the President of GA, Ambassador Thomson referring to the same Legal Counsel’s opinion just cited. Under the Uniting for Peace Resolution 377 (V) (1950) the Assembly determined that where the Security Council fails to exercise its primary responsibility for the maintenance of international peace and security due to a lack of unanimity of the permanent members, the Assembly may make appropriate recommendations for collective measures. See further the Advisory Opinion of the ICJ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, paras 24–​32. 99 GA Res 60/​1 (16 September 2005). 100 W Schabas, Preventing Genocide and Mass Killing: The Challenge for the United Nations (Minority Rights Group International, 2006) 14. See further A Orford, International Authority and the Responsibility to Protect (Cambridge University Press, 2011).

The General Assembly  121 Then comes a second-​level of responsibilities. The paragraph from the Outcome continues: ‘The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability’. From a legal perspective, it is hard to find concrete immediate positive obligations in such a sentence. Nevertheless, any action which undermines a state’s protection of its own population would put a third state in violation of this commitment. The Outcome goes on to set out further commitments for the member states: 139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-​by-​case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.

Here we find a number of new commitments from third states. First, an intention to commit to capacity-​building and assistance to help states fulfil their own responsibility to protect their own populations; second, to use, as the ‘international community’, the appropriate diplomatic and humanitarian means to help protect populations from atrocities; and third a promise of a preparedness to take collective action through the Security Council in accordance with the UN Charter. We are, however, a long way from recognition of a legal obligation to use force or any new legal right to use force outside the framework foreseen in the UN Charter. It is fair to say that the idea of a responsibility to protect played a role in the run up to the Security Council’s 2011 decision in Resolution 1973 to authorize states to use force in order to protect civilians under threat of attack in Libya. But precisely because that protective military intervention was seen by some states (including Russia and China) as overstepping the immediate need to protect civilians, it has proven difficult to find agreement in the Security Council for enforcement measures with regard to Syria in 2012. The General Assembly’s Resolution, adopted at the height of the crisis, while ‘deploring the failure of the Security Council to agree on measures to ensure the compliance of Syrian authorities with its decisions’, only referred, to individual responsibility for crimes against humanity, and seems to make no illusions to any wider

122  Andrew Clapham ‘responsibility to protect’. So, while the General Assembly came together to condemn egregious human rights violations and deplore the failure of the Security Council, it remains in such situations, at best, a forum for frank expressions of the will of the majority of states, at worst one could be forgiven for thinking it sometimes fulfils the function that the founders saw for it: a place to ‘blow off steam’.101 The creation of the mechanism to investigate atrocity crimes in Syria, may, nevertheless, represent something of a turning point. The Assembly has created a subsidiary organ with the capacity to accelerate prosecutions and work for accountability in concrete ways over the long term.102 ii. The High Commissioner for Human Rights The General Assembly resolution containing a mandate for the post of a UN High Commissioner for Human Rights was adopted by consensus on 20 December 1993.103 On 1 February 1994 Ambassador José Ayala Lasso was appointed by the Secretary General as the first High Commissioner for Human Rights, and this was approved by the General Assembly on 14 February 1994. Details of some of the steps which led to the establishment of the High Commissioner, the role of the subsequent High Commissioners and the current activities of that Office are described in another Chapter of this volume and need not be repeated here.104 In the present context it is worth highlighting how the dynamics of the Assembly have shaped the mandate and the work of the High Commissioner. First, the fact that the ultimate negotiation happened at the General Assembly in New York rather than at the Commission in Geneva meant that the stakes were particularly political from the outset. Many of the participants in the drafting process were used to ‘Third Committee culture’,105 which meant that texts were hammered out in the corridors rather than in formal drafting sessions, and that alliances would form around political interest groups (in this case the Non-​Aligned Movement (NAM)) rather than regional blocs. It also meant that non-​governmental organizations would have little formal input into the process and were excluded from much of the discussion. However, despite these obstacles many non-​governmental organizations maintained the momentum from the Vienna Conference and pressured governments to create the post; particularly impressive were representatives of the Colombian Commission of 101 ‘This assembly would only meet about once a year and its purpose would be to enable representatives of all the smaller powers to blow off steam. At the other end of the scale would be an executive committee composed of representatives of the Four Powers. This body would take all the more important decisions and wield police powers of the United Nations.’ Telegram from Anthony Eden to Winston Churchill (March, 1943) describing the plans of President Roosevelt. 102 C Wenaweser and J Cockayne, ‘Justice for Syria? The International, Impartial and Independent Mechanism and the Emergence of the UN general Assembly in the Realm of International Criminal Justice’ (2017) 15 Journal of International Criminal Justice 211. 103 See GA Res 48/​141 (20 December 1993). 104 See Chapter 19 by A Clapham in this volume. For a discussion of how the idea gathered momentum in the run up to the World Conference, see P Baehr, ‘Human Rights Organisations and the UN: A Tale of Two Worlds’ in D Bourantonis and J Wiener (eds), The United Nations in the New World Order (St Martin’s Press, 1995) 170–​89. Background on the evolution of the resolution can be found in R Clark, A United Nations High Commissioner for Human Rights (Martinus Nijhoff, 1972) and J Mertus, The United Nations and Human Rights: A Guide for a New Era (Routledge, 2005) 8–​15. 105 On this, see Quinn, above n 2, 60–​5.

The General Assembly  123 Jurists who travelled to New York from Bogotá to lobby in the corridors and keep vigil over the government representatives. Second, despite the pressure from human rights organizations, the discussion obviously reflected the delegates’ own interests. Had this discussion taken place in Geneva at the Geneva-​based Commission on Human Rights, the debate would arguably have become dominated by the future of the human rights mechanisms established by the Commission, the human rights treaty bodies that regularly meet in Geneva, and the future role of the Geneva-​based UN Centre for Human Rights. But the political culture in New York and the background of the diplomats negotiating the text meant that key concepts before the working group were: the right to development, conditionality, fact-​ finding, sovereignty, peace-​keeping, streamlining, mainstreaming, and coordination of UN activities. Third, the General Assembly delegates, flushed with the sense of achievement of having ensured consensus over the Vienna Declaration and Programme of Action, were being asked to consider moving forward by consensus rather than through confrontation. The result of the political negotiations was that the eventual resolution empowered the High Commissioner to engage in a wide range of activities. The mandate is wide open as the Assembly decided that one of the responsibilities of the High Commissioner is to ‘play an active role in removing the current obstacles and in meeting the challenges to the full realisation of all human rights and in preventing the continuation of human rights violations throughout the world, as reflected in the Vienna Declaration and Programme of Action’.106 Taken as a whole the resolution marries two concepts and the two relevant political blocs. On the one hand, the resolution creates an active High Commissioner with a mandate to prevent human rights violations. On the other hand, the High Commissioner is not only to recognize the importance of the right to development, but also to ‘promote and protect the realization of the right to development’.107 This dynamic resulted from the constellation of state interests at the General Assembly at the time. This attitude of the General Assembly towards the High Commissioner remained caught for a while in a debate about how much attention was being given to the right to development, with a focus on the request by the Assembly in the early days for the establishment of a new Branch the ‘primary responsibilities of which would include the promotion and protection of the right to development’.108 Over time, the Third Committee warmed to the annual encounter with the High Commissioner and a radical shift took place with the holding of the 2005 World Summit. The General Assembly expressed its ‘resolve to strengthen the Office of the United Nations High Commissioner for Human Rights’, matching words with deeds by proposing the ‘doubling of its regular budget resources over the next five years’.109 During its sixtieth session, the Fifth

106

See GA Res 48/​141 (20 December 1993), para 4(f). Ibid, paras 3(c), 4(c), preambular paras 3, 4, 16, and 4f. 108 GA Res 50/​214 (29 February 1996), para 37. 109 GA Res 60/​1 (16 September 2005), para 124. 107

124  Andrew Clapham Committee approved proposals for over ninety new staff posts submitted by the High Commissioner for Human Rights, a unique increase in staffing in that institution’s history and a striking development in a context of budget reductions elsewhere in the UN. The relationship between the High Commissioner and the General Assembly will most likely be dependent on developments in the relationship between the High Commissioner and the Human Rights Council. What will not change in the foreseeable future is the High Commissioner’s dependence on the Assembly to approve budgets and posts. This is not merely a question of expansion or contraction. By scrutinizing the budget proposals the General Assembly may from time to time interfere with the High Commissioner’s plans. iii. The Human Rights Council As is explained elsewhere in this book, the creation of the Human Rights Council represents a significant reform in the history of human rights protection through the UN.110 The decision to create the Council was taken at the 2005 World Summit as part of the larger agenda for UN reform.111 The General Assembly, with its President Jan Eliasson playing the central role, negotiated for five months before agreeing to create the new Human Rights Council as a subsidiary organ of the General Assembly. As with the negotiations for the High Commissioner for Human Rights, the Geneva-​ based diplomats played a minor role, giving the eventual resolution a rather surreal feel—​disconnected from the preoccupations of those who work on human rights issues in the UN system. The diplomats in New York at the General Assembly focused on which states should be eligible for membership in the new Council, the majority needed for election, and the number of members for the future Council. At the same time the Assembly left the new Geneva-​based Council a very tight time schedule to adopt rules of procedure, improve and rationalize the Commissions special procedures, expert advice and complaints procedures, as well as develop a brand new mechanism called ‘universal periodic review’.112 The President of the General Assembly explained the result: ‘No Member State has got everything it argued for. For many members, adopting the draft resolution today would mean compromising on some points on which they had felt—​and still feel—​strongly.’113 The resolution creating the Council was in the end adopted with 170 votes in favour. The US, Israel, the Marshall Islands, and Palau voted against, while Belarus, Iran, and Venezuela abstained.114 The United States had been hostile to the Human Rights Commission and was a key backer of the idea of the creation of a new Human Rights Council. The United States was apparently dissatisfied that the resolution made insufficient provision to ensure an 110 See Chapter 5 by Rosa Freedman in this volume. 111 GA Res 60/​1 (16 September 2005), para 157. 112 For an analysis of the negotiations, see P Alston, ‘Reconceiving the UN Human Rights Regime: Challenges Confronting the New UN Human Rights Council’ (2006) 7 Melbourne Journal of International Law 185–​224. 113 Follow-​up to the outcome of the Millennium Summit, General Assembly, 60th Session, 72nd Plenary Meeting, UN Doc A/​60/​PV.72 (15 March 2006) 2. 114 GA Res 60/​251 (3 April 2006).

The General Assembly  125 appropriate membership. It had been preoccupied by the membership question for several years.115 The issue was triggered by the failure of the United States to get elected in 2001,116 and compounded by the presence on the Commission of states such as Sudan and Libya. The effectiveness of the Commission was being judged by its membership.117 The Council’s future utility was seen to be dependent on designing proper entry criteria. Ambassador Bolton explained the negative vote of the United States: ‘absent stronger mechanisms for maintaining credible membership, the United States could not join consensus on this resolution’.118 In the future, the General Assembly may well be called upon, as the Council’s parent body, to play a major role in relation to its subsidiary body. There will certainly be a temptation for governments to turn to the Assembly if they fail to achieve what they want in the Council. The Council reports to the Assembly annually. Depending on the evolution of the Council and its relationship with the General Assembly, it is quite possible that, rather than fiddling with the criteria for membership, or recalibrating the number of seats, pressure will build for the Council to enjoy universal membership. At this point there would be pressure for the Council to be a principal organ of the UN in its own right and for the Assembly to relinquish its human rights mandate. The first review of the Council rejected this move,119 but the dreaded ‘duplication’ of tasks for the General Assembly and the Human Rights Council remains. Two serious arguments militate in favour of keeping the reduced membership of the Human Rights Council and phasing out the duplicative human rights work of the General Assembly. The election process to the Human Rights Council has prevented some unsuitable candidates from taking their seat and voting on Council resolutions, and the Council’s work will be undermined if its actions can be ‘appealed’ to the Assembly with its universal membership. Of course universal standard setting will still have to be adopted by the membership in resolutions of the Plenary of the General Assembly. But as long as states see the advantage of getting a ‘second bite at the cherry’ by taking their issue to the Third Committee after having lost in the Council it seems likely that the duplicative arrangements will continue. Under the current arrangements the General Assembly holds the crucial responsibility of electing the Council’s forty-​seven members. These are elected directly and 115 It is worth recalling the statement made by the United States to the Commission on 12 March 2004: ‘We believe that initial steps toward reform must focus on membership in the Commission, where human rights violators have succeeded unacceptably in winning election as members. We encourage democratic governments in each regional group to present themselves as candidates for the Commission and urge democracies to support the election of other democracies.’ 116 ‘Interview with Condoleezza Rice’, Fox News, 6 May 2001: ‘The sad thing is not for the United States. The sad thing is that the country that has been the beacon for those fleeing tyranny for 200 years is not on this commission and Sudan is on this commission. It’s very bad for those people who are suffering under tyranny around the world. And it is an outrage.’ 117 In the press briefing Ari Fliescher expressed his concern with the membership of the UN Human Rights Commission: ‘I think that a human rights commission that doesn’t have the United States and that does have Sudan and Libya on it is not going to be widely perceived as a most effective human rights commission.’ The White House, Press Briefing by Ari Fliescher (4 May 2001)  available at http://​web.archive.org/​web/​20010913053023/​ http://​www.whitehouse.gov/​news/​briefings/​20010504.html. 118 Explanation of vote 15 March 2006. 119 See GA Res 60/​251 (3 April 2006).

126  Andrew Clapham individually by an absolute majority of members of the General Assembly through secret ballot, a method that is supposed to do away with the practice of vote trading and the election of uncontested group slates. The resolution stipulates that ‘when electing members of the Council, Member States shall take into account the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments made thereto’.120 Although in the early days governments made an effort to produce pledges and commitments in order to get ahead in the election, the problem of regional blocs presenting clean slates has remerged and so the elections have lost much of their meaning. In the first ten years of the Council up to 2016 ‘out of 55 regional electoral slates, 33 (or 60%) have been clean slates.’ 121 In other words these are for the most part not real elections, a clean slate means there is no choice of candidates. For example, four states are proposed for four seats. There is no selection just affirmation. In 2017 only Asia presented more candidates than seats at the elections to the Human Rights Council.122 The General Assembly has the power to suspend, by a two-​thirds majority of the members present and voting, the rights of membership in the Council of a member that commits ‘gross and systematic violations of human rights’.123 Such a vote may have appeared unlikely when the resolution was adopted, and some would say suspension of membership is not much of a sanction. But the Commission had been dogged by its image as a refuge for human rights violators and the General Assembly nevertheless adopted the rule giving itself the power to suspend membership. In 2011, this procedure was indeed applied by the General Assembly to suspend Libya from membership in the Human Rights Council.124

(c)  The General Assembly’s establishment of field operations While it is often assumed that in recent times peace operations are exclusively the domain of the Security Council, the General Assembly has adopted resolutions mandating human rights field operations in Guatemala, Haiti, and El Salvador.125 At the end of 1996 the Guatemala operation had 17 military liaison officers, 35 civilian police officers, 106 UN volunteers involved in human rights verification, 14 security guards, 126 international staff, 140 local staff, and a number of part time interpreters from and into 22 major indigenous languages. This still represents one of the largest human rights field operations ever mounted. It played a particularly interesting role as

120 GA Res 6/​265 (3 March 2011), para 8. 121 P Splinter, ‘Elections Without Choice:  “Clean Slates” in the Human Rights Council’, Open Global Rights (Online), 12 October 2017, available at:  https://​www.openglobalrights.org/​election-​without-​choice-​clean%20 slates-​in-​the-​human-​rights-​council/​. 122 See ://​yourhrc.org/​2017-​elections/​. 123 Ibid. 124 GA Res 65/​265 (1 March 2011). 125 GA Res 48/​267 (Guatemala), GA Res 47/​20B (Haiti), GA Res 51/​199 (El Salvador with a small support unit for the high level envoy working with the administrative support of UNDP).

The General Assembly  127 it was instrumental in building confidence between the parties in order that they could come to a peace agreement. The General Assembly had authorized the human rights verification operation even before the cease-​fire. The idea was that human rights verification could help to create the conditions for the parties to agree to a comprehensive peace involving a cease-​fire, separation of forces and demobilization. The El Salvador civilian human rights verification mission was originally established by the Security Council and played a similar role—​providing for regular public human rights reports and leading to an eventual cease-​fire. The General Assembly joint OAS/​UN civilian mission in Haiti (MICIVIH) was established in 1993. The mission had its origins in a request by the ousted President Aristide for human rights monitors. Its tasks were: verifying human rights, providing technical assistance such as the training of the police or the establishment of an impartial judiciary, and promoting the consolidation of long-​term constitutional democracy in Haiti. The effectiveness of these and other civilian human rights missions have been reviewed elsewhere.126 Together with the High Commissioner for Human Rights’ field operations in Rwanda, Burundi, the former Yugoslavia, Cambodia, Colombia, and Nepal the General Assembly’s operations represented a new wave of human rights protection and presented the world with opportunities to implement human rights principles in practice. William O’Neill served in various human rights missions, and his conclusion with regards to his time in the General Assembly’s operation in Haiti makes the point: The strategy of constant presence, follow-​up and intervention is the hallmark of a human rights field operation. By showing up every day in court, by continually meeting with local government authorities, by returning to the same prisons and police stations each week for months, by offering on-​going training to local human rights advocates, defence lawyers and journalists, MICIVIH secured improved compliance with human rights law and greater protection for Haitians.127

The operations in El Salvador, Haiti and Guatemala clearly ‘mainstreamed’ human rights activity within the UN’s work to maintain and restore international peace and security. They created the potential for the General Assembly to connect its political resolutions to UN operations in the field. Today it is more likely that the authorization for such a field operation would come from the Security Council or be arranged by the Office of the High Commissioner (perhaps with the support of the Human Rights Council). The viability of any such operation will nevertheless often depend on the General Assembly approving the budget.

126 See A Henkin (ed), Honoring Human Rights (Martinus Nijhoff, 2000). 127 OHCHR Staff, ‘Human Rights Field Operations:  A New Protection Tool’ in B Ramcharan (ed), Human Rights Protection in the Field (Martinus Nijhoff, 2006) 127–​40, 134.

128  Andrew Clapham

2.4  Conclusion: towards connectedness? Many delegates recognize the irrelevance of much of the debating, drafting and deciding that takes place during the General Assembly’s session. This chapter has outlined some areas where the Assembly’s resolutions have by contrast had very concrete effects. We have seen how a resolution can alter our perception of the international legal order with the emergence of an international right to take up concerns about the human rights situation anywhere. And we have seen how resolutions can develop the universal human rights standards in ways that attach to existing hard law, or even hardening themselves into crystallizations of customary international law. Nevertheless, in the airless windowless conference rooms at the basement level of the General Assembly, few representatives ever really connect the violations taking place around the world with the need to take action at the General Assembly. If the issue was not dealt with by the Assembly the previous year it is usually inconceivable that action should be initiated in the Assembly—​there is simply too much already on the agenda. There are many examples of the Assembly’s failure to discuss or condemn gross situations of human rights. In the first edition of this book Cassese considered the limited action taken by the Assembly, and bemoaned the fact that: ‘The major shortcoming of the Assembly lies . . . in the fact that many other situations of gross and systematic violations have never been the subject of adequate supervisory measures by either the Assembly or the Commission’.128 He went on to anticipate that things would get better in the medium term due to the recent changes in the political constellation at the United Nations. The history of human rights speeches and resolutions at the United Nations has often been a history of political posturing and ideological division. There ought to be a chance for some delegates to connect the UN human rights world with the plight of victims of human rights violations. The sense of irrelevance and disconnectedness at the General Assembly could be fairly easily remedied. On various occasions the representatives to the Security Council have travelled to some of the countries which are the object of their resolutions and decisions. This has proven to be an energizing factor. Abstract issues such as action on land-​mines, prison overcrowding, and family reunification have become human rights issues demanding a response from the ‘humanity’ which is so easily invoked. Ambassadors representing their governments on the Security Council have been moved to take action to respond to the plight of individuals they have encountered.129 As the UN human rights programme becomes more and more implicated in the field, it seems appropriate that delegates to the Assembly travel to try to understand the issues facing the UN’s operations in the field and what inter-​ governmental decisions need to be taken.



128 129

Cassese, above n 28, 45. See ‘A Furtive good deed in the Sahara saves 185 men’ International Herald Tribune (9–​10 December 1995).

The General Assembly  129 Over the past seventy years, the General Assembly has developed an impressive array of human rights instruments, affirmed that states have a duty to protect these rights, and finally agreed that the protection of all human rights is a legitimate concern of the international community. The challenge now is to harness the real concern that exists in the international community and translate it into effective action by the United Nations. When E.M. Forster used the epigraph ‘only connect’ on his title page to Howards End, he was evoking the ‘sermon’ of his heroine Margaret to the unemotional and single-​minded businessman who will become her husband. She only wants to ‘connect the prose in us with the passion’.130 If we can only connect the sentiments behind the human rights message with the prosaic nature of governmental action, the General Assembly may be able to fulfil its promise to revitalize itself ‘to ensure that the United Nations of the future serves well the peoples in whose name it was established.’131

130 E Forster, Howards End (E Arnold, 1910) 187 and 188. 131 UN General Assembly, Declaration on the Occasion of the 50th Anniversary of the United Nations: resolution/​adopted by the General Assembly, General Assembly, 50th Session, UN Doc A/​RES/​50/​6 (9 November 1995), para 14.

3 The Economic and Social Council Frédéric Mégret

Second perhaps only to international peace and security, the promotion of ‘social progress and better standards of life in larger freedom’1 is one of the fundamental inspirations for the United Nations. The resulting ‘international machinery for the promotion of the economic and social advancement of all peoples’2 has, over decades of UN existence, involved dozens of programmes and agencies. The ECOSOC, whose origins lie in ambitious proposals drawn up in 1939 within the League of Nations for a ‘Central Committee for Economic and Social questions’,3 was supposed to be the central piece of that machinery, one that would work for the purpose of achieving ‘international co-​operation in solving international problems of an economic, social, cultural, or humanitarian character’.4 In the Charter, ECOSOC’s formal importance is attested by the fact that (although it does work formally under the supervision of the General Assembly) it is one of only six principal organs of the UN, and an entire Chapter of the UN Charter is devoted to its role.5 By comparison, the former Commission (now Council) on Human Rights is mentioned only once in the Charter and only in passing, and the Commission on the Status of Women does not appear at all. Institutionally, although not as representative as the General Assembly’s universal membership, ECOSOC’s fifty-​four members6 (UN member states not elected members of ECOSOC can attend as observers) make it substantially more so than the Security Council,7 and it has been occasionally referred to as the ‘parliament’ of the UN when it comes to economic and social matters. ECOSOC members are elected on the basis of equitable geographical representation of the five UN regions.8 Furthermore, despite the absence of either legislative or enforcement powers, the UN founders gave it 1 Preamble of the UN Charter. 2 Ibid. 3 One commentator has noted that there is a striking resemblance between the suggestions contained in the Bruce Report and the proposals for the creation of ECOSOC. See E Ransholen-​Wertheimer, The International Secretariat: A Great Experience in International Administration (1945) 166. 4 Article 1(3) of the Charter. 5 A good description of ECOSOC’s history, structure, and functioning can be found in R Lagoni, ‘ECOSOC—​ Economic and Social Council’ in R Wolfrum and C Philipp (eds), United Nations:  Law, Policies and Practices (Springer, 1995). 6 Members are elected by the General Assembly for a term of three years. The candidates are endorsed by their regional groups. 7 There is, in particular, no provision made for permanent membership. In effect, however, it should be noted that the United States, Russia, the United Kingdom, France, and China are permanent members by repeated election. Other economic powers such as Japan and Germany are frequent members. 8 This means in practice that fourteen members come from African states, thirteen from Western European states and others, eleven from Asia, ten from Latin America, and six from Eastern Europe.

132  Frédéric Mégret real prerogatives. For example, ECOSOC may make or initiate studies and reports and make recommendations ‘with respect to international economic, social, cultural, educational, health, and related matters’ to the General Assembly, member states, and the specialized agencies. The Council may also prepare draft conventions for submission to the General Assembly and call international conferences. Its supervisory powers vis-​ à-​vis its subsidiary bodies (ie, vertical coordination) and the UN system in general, including its programmes and agencies (ie, horizontal coordination), are considerable. There is even a provision in the Charter anticipating that the ECOSOC may be called to assist the Security Council.9 Given the impact of the economic and social on human rights and of human rights on the economic and social sphere, one might have expected that ECOSOC would have had a significant role in human rights promotion. Human rights are specifically subsumed in the larger topic of ‘international economic and social co-​operation’.10 Many of the Council’s powers, moreover, are relevant to human rights. The Council is specifically asked to ‘make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all’.11 Its power to make draft conventions or convene conferences would seem of obvious relevance to human rights. Its subsidiary organs long included a large part of the most dynamic elements in the UN’s human rights protection regime. Yet ECOSOC has never been as central a body in the UN as one might have expected it to be.12 In every proposal for reform, it is one of the prime candidates for significant change or even elimination.13 Its powers remain negligible, its recommendations not mandatory, its resources non-​existent and its influence limited. This is quite evident in the realm of human rights, where it has long suffered from the greater clout and specialization of its then subsidiary body, the Commission on Human Rights, or its parent body, the General Assembly. The story of the relationship of ECOSOC to human rights is, in fact, one of declining relevance, after a few significant achievements. ECOSOC is perhaps one of the least well-​known of the UN system’s organs. In recent years, there has been a certain resurgence of interest in and relevance of the ECOSOC. It is tempting to think that in times of global economic and social tension, the existence of a high-​level policy forum to discuss the impact of economic flows on human rights would not be superfluous. Nonetheless, human rights, perhaps because of their independent success within the UN as illustrated most notably by the creation of the Human Rights Council, have gone from being a fairly marginal part of the council’s activities to being frankly secondary. This chapter proposes to critically assess ECOSOC’s contribution to human rights over the years. It emphasizes how it had to deal with significant questions relating to 9 Article 65 of the Charter. 10 See, in particular, Article 55 of the Charter. 11 Article 62(2). 12 J Renninger and United Nations Institute for Training and Research Dept, ECOSOC, Options for Reform (United Nations Institute for Training and Research, 1981). 13 E Luck, ‘Reforming the United Nations: Lessons from a History in Progress’ in JE Krasno (ed), The United Nations: Confronting the Challenges of a Global Society (Lynne Rienner Publishers, 2004).

The Economic and Social Council  133 the functioning of the Commission on Human Rights early on, although it was gradually overshadowed when it came to human rights by its subsidiary bodies (I). A more auspicious post-​Cold War moment briefly rekindled interest in human rights and the ECOSOC’s potential for coordination but, aside from the question of civil society accreditation, its role has gone from marginal to insignificant (II).

3.1  Early promise to decline Much of what would eventually make the Council both relevant and irrelevant was already discernible in its early years. The Council initially seemed to confirm some of the hopes that had been vested in it. It was the Council, for example, rather than the Commission, which was responsible for most of the work done to draft the Genocide Convention of 1948. The Council also resumed efforts begun by the League of Nations by appointing an Ad Hoc Committee on Slavery in 1949, and five years later a Rapporteur on the same issue. Also, in 1949 it began a long series of debates on the issue of forced labour which culminated in the establishment of a joint UN/​ILO committee which prepared an exhaustive report on the subject. In 1950, after extensive inter-​ agency negotiations the Council and the ILO agreed to a procedure for the investigation of infringements of trade union rights in any member state of either organization. At the same time, some of the Council’s power seemed to be exercised at the expense of those of its subsidiary organs that might have had more of an impact on human rights. In fact, ECOSOC’s role as the parent body of a number of subsidiary organs was initially pursued with such vigour that it sought to abolish the Sub-​Commission on Prevention of Discrimination and Protection of Minorities. It failed in this endeavour although only as a result of intervention by the General Assembly, but nevertheless succeeded in effectively dictating a different policy line to the Sub-​Commission. It also succeeded in bringing about the demise, in 1952, of the Sub-​Commission on Freedom of Information.14 In 1963 the Commission on Human Rights itself became a target when the Council cancelled its 1964 session. The ostensible reason was a shortage of conference facilities but the real aim was to force all of the Council’s functional commissions to meet only biennially. The Assembly effectively reversed the Council’s decision in so far as it applied to the Human Rights Commission. But, by and large, the Council maintained a tight lid on the Commission’s activities, not least because of its long-​held reluctance to allow it to monitor or consider communications regarding specific human rights violations. The Council’s power to make or initiate studies and reports and make recommendations is formulated in terms large enough that expectations were raised from the earliest stage that ECOSOC might serve as a focal point for engaging both country-​wide and specific situations of human rights violations. The Council, however, was from the beginning reluctant to exercise that power in anything but the

14 These activities are recounted in Green, The United Nations and Human Rights (1956) 76–​95.

134  Frédéric Mégret most conservative of ways. It was deemed obvious in particular that studies or reports involving individual states could only be undertaken with the agreement of the Governments concerned.15 In 1949, for example, the Council had considered allegations of violations of trade union rights by a number of member and non-​ member states, but rejected a draft proposal making recommendations to those states specifically.16

(a)  The question of communications As for the possibility that the Council hear human rights complaints from individuals, it was rejected from the outset. The question nonetheless arose very practically as a result of human rights complaints being sent to one of its subsidiary bodies, the Commission on Human Rights. Such complaints originated from the perception, widespread among interested sectors of the public, that the Commission could and should be able to hear allegations of human rights abuse. The Commission raised the question with its supervisory organ, if only to decide what to do materially with the complaints. Dealing with the issue became, almost from the Council’s inception, a vexing question, one only to be answered at the end of a very long and protracted process. From the late 40s to the late 60s, despite being encouraged by the General Assembly, the Commission and the Sub-​Commission, the Council was very sceptical of the idea that the Commission could study specific country situations or receive complaints directly. The Commission had taken up the issue as early at its first session in January/​ February 1947. It proposed to the Council that the Secretary General be asked to compile a confidential list of the communications received concerning human rights abuses before each session of the Commission and to have a selection of them reviewed by the Commission. The Council received this proposal coolly, deferring consideration. Eventually, the Council adopted Resolution 75(V) by fourteen votes to two with two abstentions on 5 August 1947. This first resolution of the Council dealing with a procedure for communications was almost bureaucratic, a matter of simply deciding what to do with embarrassing pieces of paper. The Council approved a statement insisting that the Commission ‘has no power to take any action in regard to any complaints regarding human rights’. Not only was it established that the Commission itself would take no action on the complaints (although it might make them available to members): these were also to remain strictly confidential and the names of their authors not disclosed. A somewhat similar resolution (76(V)) was adopted by the Council in respect to the Commission on the Status of Women.17 In the years that followed, the Council only slightly amended Resolution 75(V). In 1955, Council Resolution 728F(XXVIII) did go as far as to suggest



15 Goodrich, Hambro, and Simons, Charter of the United Nations, Commentary and Documents (1969) 416. 16 Ibid.

17 See Chapter 7, below.

The Economic and Social Council  135 that the Secretary-​General should draw up confidential statistics of human rights by individual petitioners, but reaffirmed that the Commission had ‘no power to take any action in regard to any complaints concerning human rights’. In fact, the Council went out of its way to rewrite a part of 75(V) in order to make it clearer to petitioners that the Commission could take no action on their complaints. It was another twenty years before the issue was again envisaged seriously. The mood at the Council had evolved substantially in the meantime. A large part of the reason for the failure of the conferees at Dumbarton Oaks and San Francisco to approve implementation powers in the human rights field stemmed from the nervousness of the Western Powers on the issue of race. By the mid-​1960s, Western members of the United Nations had divested themselves of many of their colonies and were less sensitive to the problem. Indeed, a rising interest in human rights was also evident in public opinion: the relative indifference of Western opinion to the civil war in the Congo at the beginning of the decade gave way to major debate on the rights and wrongs of the Biafran revolt in Nigeria at the decade’s end. As a result of decolonization, moreover, the composition of the United Nations had also changed considerably, leading to UN membership of many African countries.18 The issue of apartheid began to move to the centre stage of United Nations debates. The mood seemed ripe, therefore, for a reconsideration of ECOSOC’s longstanding reluctance.19 In 1967, the Council adopted the landmark Resolution 1235(XLII) which decided that the Commission could ‘make a thorough study of situations which reveal a consistent pattern of violations of human rights, as exemplified by the policy of apartheid’. Three years later, ECOSOC adopted resolution 1503 (XL VIII)—​to this day the closest thing to a human rights petitioning system in a Charter body—​which provided a comprehensive means for the sub-​Commission to deal with communications that highlighted a ‘consistent pattern’ of human rights violations. Combined, the two resolutions represent what was long viewed as the central mechanism of the UN’s human rights infrastructure. The history of these procedures and their development will not be recounted here as it henceforth belonged more to the Commission and the sub-​Commission than to the ECOSOC.20 For our purposes, it suffices to note that the consequences of setting up the procedures were hardly negligible for ECOSOC’s own status and human rights responsibilities. As long as the Council kept a tight lid on the Commission and the sub-​ Commission’s work, it enhanced its status, albeit to the detriment of human rights. The creation of the procedures, conversely, must count as one of the factors that contributed to its demise. It is as if, for the purposes of human rights, the ECOSOC had served an initial purpose in defining the scope of the UN’s human rights regime but, once that task was accomplished, on terms relatively favourable to human rights, ECOSOC began a long term decline.



18 There were eighty-​two members of the UN in 1957. Ten years later there were 123.

19 N Padelford, ‘Politics and the Future of ECOSOC’ (1961) 15 International Organization 564. 20 See Chapter 7, on the work of the Commission.

136  Frédéric Mégret

(b)  Not the principal to its subsidiary organs Beyond the creation of procedures for the Commission, ECOSOC’s role generally and in the field of human rights steadily declined in the decades that followed. This is not to say that there were not some within the UN system that would have liked it to play a greater role. In fact, calls to rejuvenate the ECOSOC were about as common as analyses deploring its decay. In 1975 for example, in the context of attempts to set up a New International Economic Order, the General Assembly indicated that it was time to reaffirm ECOSOC’s role as a ‘central forum for the discussion of international economic and social issues of a global or interdisciplinary nature’.21 Regardless of those well-​intentioned attempts to boost its profile, however, the increasing clout of the General Assembly and, indeed, of ECOSOC’s own subsidiary bodies, as well as some programmes, gradually eclipsed it. The immediate beneficiary of the Council’s policy or lack of one when it came to human rights was the then Commission. Already at the time of the drafting of the Charter, questions had been raised as to whether the Commission should not be an organ with a principal or independent status rather than one artificially brought under the loose heading of ‘economic and social affairs’.22 In fact, the specificity of human rights, the Commission’s own legitimacy within the Charter, always made it likely that it would stray from the path of ECOSOC. By the 1970s, it had in fact largely overshadowed its supervisory organ in terms of sheer visibility. While ECOSOC meetings were generally attended, at best, by permanent Representatives in New York or Geneva, the Commissions were increasingly attended by representatives of high political or diplomatic ranks or prestigious personalities from the judicial and academic worlds. The attendance at Commission meetings, moreover, became typically much greater, with many observer states and NGOs attending, under increasing media attention. This began a seemingly irresistible process of divergence between the Council and the Commission. Of course, the Commission, the sub-​Commission and even to a degree the treaty bodies23 still nominally exercised their activities under the supervision of the Council. But as the years went by, ECOSOC was increasingly content with merely rubber-​ stamping their work at each session. In fact, the divergent fortunes of both organs also seemed to reflect fundamental and sometimes irreducible differences in expert culture: economic and development specialists more at ease with terms of trade and structural adjustment on the one hand, and human rights ‘types’ more inclined to take on fundamental normative fights on the other. Until the mid-​1990s, a specific debate 21 GA Res 32/​197 (20 December 1977). 22 H Lauterpacht, An International Bill of the Rights of Man (Oxford University Press, 1945) 214. 23 McGoldwick has noted, for example that the Human Rights Committee can transmit state reports and its general comments to ECOSOC but, despite its potentially large powers, ECOSOC has never acted upon such reports. The Committee is also requested to transmit an Annual report to the Council, but it is in fact ECOSOC itself that has asked the Committee to transmit its annual report directly to the General Assembly where it is dealt with by the Third Committee. D McGoldrick, The Human Rights Committee (Clarendon Press, 1991) 96.

The Economic and Social Council  137 on human rights at the ECOSOC was still to be expected, and key players such as the European Union would typically have issued statements. Such discussions rarely if ever led to the Council overturning a Commission decision, but at least they maintained the illusion of the Council as a supervisory body. From the second half of the 1990s onwards, however, such debates are not even staged any longer, and the Council seemed to truly reconcile itself with the idea of being a mere ratification chamber when it came to human rights. Even when it came to the more institutional or organizational decisions (eg, creating or extending the mandate of a rapporteur), it often merely adopted drafts submitted to it by the relevant subsidiary bodies themselves. Simultaneously, ECOSOC suffered from the competition of its own supervisory organ. The General Assembly’s much greater political clout made it more of a natural venue for some of the high profiles debates that arose in the 1960s and 1970s. As the supreme ‘legislative’ body in the UN system, it became the forum of choice for the Afro-​Asian group. Despite growth in membership (from an original eighteen to twenty-​seven in 1963,24 and fifty-​four in 197425) the developed countries were perceived as over-​represented in ECOSOC. In the General Assembly, by contrast, the ‘Group of 77’, when they agreed, could control a simple majority. The Assembly thus became the place where prestigious committees were established on Apartheid, De-​ colonization, and Palestinian Rights, each of which reported direct to the Assembly, undercutting the Council’s role. Over the years, therefore, ECOSOC’s format ended up seeming too general for the task of observing human rights compliance (which went to the Commission), and too ‘academic’ for the more confrontational types of political exchanges (which went to the General Assembly). Its core competencies had otherwise steadily eroded out of disuse or lack of interest. The Council’s power to make studies and reports, for example, which it had exercised with respect to slavery and forced labour, was used only rarely thereafter. The Council did convene and prepare a number of international conferences including, for example, the Conferences against Racism held in 1978 and 1983. But for the most part, despite calls to bring the organization of conferences more resolutely under its wing,26 it tended to play second fiddle to the General Assembly. It was the General Assembly, for example, which convened and prepared the International Conference on Human Rights held in Teheran in 196827 without any formal involvement on the part of the Council. Of course, ECOSOC’s decline, particularly in the field of human rights, is not something that is necessarily to be deplored. One might argue that it probably matters little except to UN insiders whether it is ECOSOC or one of its prestigious subsidiary bodies that have the central normative role in terms of human rights. Still, things are partly complicated by at least two factors. The first is that ECOSOC retains a number of specific mandates, foremost among which is system-​wide coordination, which are not

24 GA Res 1991B (XVIII) (17 December 1963). 25 GA Res 2847 (XXVI) (20 December 1971).

26 GA Res 32/​197 (20 December 1977) para 9. 27 GA Res 2081 (XX) (20 December 1965).

138  Frédéric Mégret adequately covered by any other organ and which could provide a vector for greater human rights mainstreaming across the organization. The second is that making sense of the place of ECOSOC within the UN structure remains unavoidable and desirable given its place in the Charter.

(c)  The relative resurgence of ECOSOC and the decline of its human rights responsibilities After a period of deep crisis, several factors converged to make the aspirations for a greater role for ECOSOC more politically feasible in the 1990s. Apart from the general defreezing of international relations resulting from the end of the Cold War, US withholding of dues and the resulting pressure on UN agencies and programmes to rationalize their work on the one hand (the stick), and the emergence of the EU as an actor committed to UN reform (the carrot), provided the minimum set of incentives for change. As a result, the General Assembly launched an important process of what it described ‘the restructuring and revitalisation of the United Nations in the economic, social and related fields’ of which ECOSOC was to be an integral part.28 A major reform of the format of ECOSOC’s agenda began in 1991. The Council was to hold an annual ‘substantive’ session dominated by a ‘high-​level segment’ of four days ‘devoted to the consideration of one or more major economic and/​or social policy themes’. It was hoped that the relatively short duration of that session would allow senior government officials and agency heads to attend. Reflecting, perhaps, an implicit downgrading of the Council’s supervisory role, all the decisions regarding subsidiary bodies were to be adopted in two days. By contrast, and as an indication of the relative importance attached to that issue, the ‘coordination segment’ was to last four or five days.29 In the process, ECOSOC’s working methods were substantially beefed-​up. The Council, in particular, was asked to reach agreed conclusions ‘containing specific recommendations to various parts of the UN system for their implementation’.30 In order to do so, it proceeded to streamline the work of its functional commissions by asking them to communicate more between each other, and provide summaries of their conclusion. In turn, ‘resolutions, decisions and agreed conclusions [were to be] implemented by all relevant parts of the United Nations System’.31 As Paul Taylor has noted, these developments have to ‘be compared with the very modest powers attributed to . . . ECOSOC in the Charter, which were only asked to issue recommendations and receive reports’.32 By 2013 and the adoption of resolution 68/​1, the Council had equipped



28 GA Res 45/​264 (13 May 1991) 29 Ibid, Annex, para 5.

30 GA Res 48/​162 (20 December 1993)

31 GA Res 50/​227 (24 May 1996) para 44.

32 P Taylor and A Groom, The United Nations at the Millennium (Continuum, 2000) 128.

The Economic and Social Council  139 itself with a new High-​Level Political Forum on sustainable development. It brands itself as ‘the lead entity to address new and emerging challenges.’ Thanks to this renewed sense of mandate, ECOSOC has gradually reframed itself as a key proponent of development and has been active in promoting the Millennium Development Goals. Its biennial Development Cooperation Forum has looked at the question of accountability of donors and recipients. In the days of the Commission on Human Rights, the Council seemed happy to surf the ‘right to development’ wave. Under the ‘Question of the realization in all countries of the economic, social and cultural rights contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights’ heading, for example, it approved the Commission’s requests to nominate rapporteurs on the right to food or housing.33 However, one of the ironies of this relative resurgence of the Council’s general profile is that it ultimately did not translate into better integration of human rights within its work. The ECOSOC’s record in monitoring the Commission on Human Rights did not particularly change and remained poor. The parent body was often overshadowed by its subsidiary protégé. Human rights were increasingly attracting a clout of their own, independent of their role as part of economic and social issues broadly understood. The Council ultimately stood in the way of the greater ambitions for human rights internationally after the Cold War. It is, in fact, to the Council itself that befell the responsibility of axing its own subsidiary organ to make way for a body which would henceforth be its formal equivalent and, to a degree, a competitor for influence and relevance.34 The election of members of the new HRC by the more representative General Assembly increased its legitimacy beyond the relatively confidential ECOSOC. This has further marginalized the ECOSOC when it comes to human rights. At the same time, unencumbered by human rights, ECOSOC has witnessed further efforts at reform and enhancement of its status, most notably in 2013.35 If anything, ECOSOC’s central mandate has been framed by development. A range of issues in addition to development (eg, humanitarian affairs) are addressed by the Council which have strong overlaps with activities of the Human Rights Council, but are hardly ever framed in terms of human rights. This may be a way of deferring to the new division of labour evidenced by the creation of the Council, but it is at times an opportunity missed in terms of coordination. Human rights are often consigned to the preamble of resolutions, in bland and non-​controversial or ways, most often in connection to the right to development.36 The separation of ‘economic and social’ affairs from ‘human rights’ remains an ambiguous phenomenon for ECOSOC.

33 See, for example, Economic and Social Council Acts on Report of Human Rights Commission, Endorses Appointment of Special Rapporteurs on Right to Food, Housing, Press Release, ECOSOC/​5891 (16 June 2000). 34 Economic and Social Council Abolishes Human Rights Council, Press Release, ECOSOC/​ 6192 (22 March 2006). 35 See GA Res 68/​1 (13 December 2013). 36 See for example GA Res 71/​243 (11 February 2017).

140  Frédéric Mégret

3.2  Possible areas of residual relevance of ECOSOC for human rights This ultimate separation of human rights from the ECOSOC’s mandate, however, must be contextualized against the background of some efforts over the years that suggest that human rights cannot be entirely severed from the ECOSOC’s continuing fortunes. These include initiatives to better ensure conference follow-​up and system-​wide coordination (A), an ongoing effort at dialogue with the Bretton Woods system that has implications for human rights (B), and the continued relevance of ECOSOC when it comes to awarding consultative status to NGOs many of which operate in the human rights field (C).

(a)  Conference follow-​up and system-​wide coordination In the first half of the 1990s, so-​called ‘major United Nations conferences and summits’ had witnessed a renewed popularity and been held on a wide variety of topics, from the World Conference on Education for all in 1990 to the Summit for Social Development in 1995. Perhaps the most important such conference for the purposes of human rights was the 1993 Vienna Conference, but others such as the Beijing conference on women, the Cairo conference on population, the Rio conference on the environment, the Istanbul conference on the Habitat or the Durban conference on racism could all be said to have significant human rights implications. In a way, the success of the 1990s conferences represent a further demise of ECOSOC since they were launched to create precisely the kind of common purpose which the Council failed to infuse in the first place. To its credit, however, the Council sought and to an extent succeeded in becoming an integral part of these conferences’ implementation and follow-​up, often deemed indispensable if their effect was not be merely rhetorical. Traditionally, ECOSOC’s role in follow up of major conferences was as part of a three-​tiered review mechanism set up by each of the conferences which anticipated successive consideration at set intervals (generally five and ten years) by the functional commission concerned, the Council and the General Assembly, with a built-​in mid-​ term review.37 Within that particular set-​up, ECOSOC’s contribution as a coordinating body was that it could issue instructions to the various UN agencies in order to better further the goals of the conferences. With the multiplication of conferences and the resulting overlaps, however, that system showed its limits. In this context, the Secretary General noted that ECOSOC was ‘especially well placed to advance the objective of a coordinated follow-​up to global conferences’ and that although ‘so far, [its]role ha[d]‌largely been limited to endorsing 37 For a description see Report of the Secretary-​General, ‘Coordination of the Policies and Activities of the Specialised Agencies and Other Bodies of the United Nations System’, E/​1995/​86, paras 29–​36.

The Economic and Social Council  141 the results of reviews undertaken by the relevant function bodies’, ‘a more pro-​active and intensive role’38 would be required if it was to rise to its potential. In 1995, therefore, ECOSOC decided to ‘promote a coordinated and integrated’ follow-​up of the conferences and, to this end, to carry out each year, in the framework of its ‘coordination segment’ (and to a lesser extent, in its ‘operational activities’ segment), a review of a ‘cross-​cutting theme’ common to all conferences.39 ECOSOC has accordingly emerged since as a fairly forceful and central proponent of UN coordination. Its agreed conclusions are lengthy but not merely rhetorical documents that contain a host of recommendations to the UN system on the directions it should be pursuing. Agreed conclusions are themselves followed-​up (generally in following years in the General segment) and the review process itself is being regularly assessed.40 The impact of conference follow-​up on human rights specifically, however, has been limited. ECOSOC was specifically associated with the follow-​up to the Vienna Declaration and Programme of action (VDPA).41 This provided the Council at the time with the opportunity to insist that the right to development is ‘a universal and inalienable right’ which is an ‘integral part of fundamental human rights’ and that ‘widespread extreme poverty inhibits the full and effective enjoyment of all human rights’42 A substantial part of the Agreed Conclusions43 that were adopted on that occasion, however, merely repeated familiar themes and fell far short of Mary Robinson’s calls for a ‘comprehensive “human rights case study” ’.44 The significance of the review, however, has to be read between the lines. The follow-​up, in particular, came at a time when the then new Secretary General, Kofi Annan, was trying to launch a major administrative reform of the United Nations that had mainstreaming of human rights at its core. Such a reform would have been difficult to launch and possibly even more difficult to sustain, short of a strong intergovernmental legitimacy, be it only because of budgetary constraints. Hence both the Secretary General and the High Commissioner45 advocated endorsement of mainstreaming before the ECOSOC. In the end, although ECOSOC did not endorse the ‘mainstreaming’ term explicitly, a strong emphasis was placed, for example, on the need for better coordination of UN’s ‘system wide’ activities in favour of human rights. ECOSOC insisted that ‘all United Nations organs, bodies and specialized agencies whose activities deal 38 Ibid, para 68. 39 Agreed conclusions 1995/​1. Report of the Economic and Social Council, A/​50/​3 (13 September 1995) chap III, para 22. 40 Particularly noteworthy, in this respect, are the Agreed Conclusions on the 2000 cross-​ sectoral theme: ‘Assessment of the progress made within the UN system, through the conference reviews, in the promotion of an integrated and coordinated implementation of and follow-​up to major UN conferences and summits in the economic, social and related fields’, A/​55/​3/​Rev.1 (2000) 28–​31. 41 A/​CONF.157/​23, Article  100. 42 E/​1998/​L.23 (28 July 1998) para 4. 43 Agreed conclusions, E/​1998/​L.23. 44 Statement by Mary Robinson, The High Commissioner for Human Rights, the Economic and Social Council, Substantive Session Coordination Segment:  Coordinated Follow-​up to, and Implementation of the Vienna Declaration and Programme of Action New York, 17 July 1998. 45 Report of the Secretary-​General, ‘Coordination of the policies and activities of the specialized agencies and other bodies of the United Nations system related to the coordinated follow-​up to and implementation of the Vienna Declaration and Programme of Action’, E/​1998/​60 (1 June 1998) para 17

142  Frédéric Mégret with human rights shall cooperate to strengthen, rationalize and streamline their activities, taking into account the need to avoid unnecessary duplication,’46 and reiterated that the VDPA ‘shall be further integrated into the programme of work of all organizations of the UN system’.47 A number of not insignificant points were also made about the need, for example, for a ‘system-​wide human rights training of UN staff ’.48 Taken together, these statements fell as close to recognizing the importance of mainstreaming as could have been hoped, short of the word being used. Here was, therefore, a case where ECOSOC’s formal clout could be harnessed to the goal of facilitating a major UN administrative reform with strong implications for human rights. Another notable element of ECOSOC’s follow-​up was its vigorous stance in favour of ‘particularly vulnerable persons’. The Agreed Conclusions, for example, came out strongly in favour of the need to for ‘all components of the United Nations to undertake . . . an assessment of the impact of their strategies and policies on the enjoyment of human rights of ‘those requiring special protection’.49 Specifically, the Council endorsed UNICEF’s new rights-​based approach and stressed the importance of integrating the needs of children in armed conflict in all UN peacekeeping activities. It also encouraged UN bodies to facilitate the negotiating process of the draft United Nations declaration on the rights of indigenous people, and required that UNDP ensure that its programmes addressed the rights of indigenous people. As regards people with disabilities, ECOSOC took a position in favour of ‘ensuring increased participation of persons with disabilities in the programmes and projects that affect them’ and encourage the provision of technical assistance to governments seeking to implement national standards.50 The Council, moreover, encouraged the strengthening of coordination between the Committee on the Elimination of Discrimination against Women and other human right treaty bodies.51 In a sense therefore, the follow-​up provided an opportunity to enrich understanding of the VDPA while reviewing its implementation, and ECOSOC proved central to that effort. Outside the review of the VDPA which culminated in the late 90s, however, human rights have had much less prominence either in terms of review of conferences or ECOSOC initiated coordination. This is despite the fact that human rights had seemed to form a central part of many conferences’ agenda and that many conferences would seem to have an impact on the promotion of human rights. Traditional forms of follow-​ up, particularly the ‘+5’ review exercises have generally failed to inculcate human rights when these were not already strongly present at the conference stage. Moreover, the human rights component of the discussions of the coordination segment has been



46 E/​1998/​L.23 (28 July 1998) para 1. 47 Ibid, Part VIII. 48 Ibid, para 9. 49 Ibid, para 8.

50 Ibid paras 9–​10.

51 E/​1998/​L.23 (28 July 1998) para 8.

The Economic and Social Council  143 either poor or under-​exploited. The discussion of ‘economic and social’ oriented topics has at best led to discussion of human rights as one among many elements to take into account, rather than a potential driving force for change. The humanitarian segment and its focus on emergencies including natural disasters, for example, steers clearly away from any mention of human rights. The work of either treaty bodies or the Human Rights Council is almost never cited.

(b)  Dialogue with the Bretton Woods institutions The link between development, international financial stability and human rights is an old issue, which has received renewed attention in an era of globalization. One of the difficulties encountered in dealing with the problem is that almost from the start the Bretton Woods institutions had been allowed to follow their own path, with only limited formal links with the UN system.52 Although ad hoc operational relations were forged during their respective histories, no significant coordination existed at the policy level. This inevitably led to criticisms that the Bretton Woods institutions were following an agenda incompatible with that of the UN system. As part of efforts to revitalize its economic and social role, the General Assembly has therefore been calling for greater consultation between the UN and the Bretton Woods institutions in recent years.53 ECOSOC’s unique combination of expert membership and broad coordinating mandate would seem to make it a natural channel to reach ‘an overall agreement on strategic objectives’54 generally, and for addressing issues of human rights pertaining to globalization specifically. A number of NGOs were prompt to see the potential and once suggested that ECOSOC ‘should be responsible for public debates on the impact of macro-​economic trends and policies on social and economic rights’.55 Indeed, one might expect of an organ that has gone on the record to say that ‘the relationship between democracy, development and human rights should be taken fully into account in the policies and programmes of the United Nations system’ and that ‘the human person is the central subject of development’56 that it might have something to say from a human rights perspective on rising economic inequalities. As early as 1992, ECOSOC launched a one-​day policy dialogue with the heads of multilateral financial and trade institutions on major developments in the world 52 Several features of the relationship agreements negotiated by ECOSOC with the Bretton Woods institutions sharply distinguish them from similar agreements with other programmes and funds. Article 1 of both the agreement with the IMF and the one with the World Bank, for example, explicitly underline the fact that ‘by reason of the nature of [their] international responsibilities [they are] required to function as independent organizations’. Paragraph 3 of Article 17 also mentions the fact that the institutions do not rely for their budget on contributions from UN members. 53 GA Res 50/​227 (24 May 1996). 54 Report of the Secretary-​General, ‘Joint exploratory review of cooperation between the United Nations and the Bretton Woods institutions’, E/​1998/​61 (10 June 1998). 55 Watkins, The Oxfam Poverty Report (1995) 8. 56 E/​1998/​L.23 (28 July 1998) para 4.

144  Frédéric Mégret economy and on international economic cooperation, conducted within the framework of its high-​level segment. Several conference follow-​ups have since given a sense of urgency to the dialogue, and the Agreed Conclusions on Eradicating Poverty, for example, make this a ‘high priority’.57 The Vienna follow up itself, by affirming the need for ‘increased coordination and cooperation throughout the United Nations system, with a view to supporting . . . efforts in the promotion and protection of economic, social and cultural rights’,58 laid the basis for further institutional dialogue. ECOSOC has accordingly moved to strengthen a new ‘strategic partnership’ between the UN and the world’s financial institutions. Visits by the World Bank and IMF officials to the ECOSOC, and vice-​versa, for example, have proceeded regularly and are likely to become an accepted and regular feature of ECOSOC’s activities. From 1998 onwards, a ‘special high-​level joint ECOSOC-​Bretton Woods meeting’ has been organized, which is also attended by a number of high level governmental representatives. Meetings with both the IMF and the World Bank are invariably described by ECOSOC officials as ‘very productive’ and ‘fruitful’, and the General Assembly has indicated its full support.59 At the request of the General Assembly, the ECOSOC and the Bretton Woods institutions undertook a ‘joint exploratory review of cooperation’ which found that the World Bank’s efforts in the areas of governance and anti-​corruption strategies could be interpreted as promoting ‘the creation of an enabling environment’ based on human rights.60 By the same token, it would be wrong to suggest that human rights have had a very significant role in this dialogue or indeed that ECOSOC has had much influence on the policies of the Bretton Woods institutions. Generally speaking, dialogue between ECOSOC and the Bretton Woods institutions seems to feature much more prominently in ECOSOC’s reports than in either the IMF’s or the World Bank’s. Although the discussions between ECOSOC and the Bretton Woods institutions approach a number of issues which no doubt have a undeniable relevance for human rights such as poverty eradication, development assistance, the debt burden, or international financial stability, human rights seem to be, outside from the odd token reference, almost entirely absent from the talks. It is, therefore, as if the Council remained oblivious to the potential of human rights for its own work when it comes to talking head to head with the world’s financial institutions. One explanation for this may be that the World Bank and the IMF already attend some of the meetings of the Human Rights Council and have established a fairly regular dialogue with the High Commissioner for Human Rights, leaving the ECOSOC to focus on macroeconomic issues, in separation from human rights.

57 1996/​1, para 21. 58 E/​1998/​L.23 (28 July 1998) para 4. 59 GA Res 53/​172 (15 December 1998). 60 Report of the Secretary-​General, ‘Joint exploratory review of cooperation between the United Nations and the Bretton Woods institutions’, E/​1998/​61 (10 June 1998) para 37.

The Economic and Social Council  145

(c)  The continued significance of the determination of NGO status ECOSOC’s decidedly mixed performance in promoting human rights either as part of its coordination function or its dialogue with Bretton Woods institutions has paradoxically revealed one area in which ECOSOC has kept a measure of at least indirect prominence for human rights: its capacity, in accordance with the UN Charter,61 to control which NGOs get to attend its sessions and—​more importantly from a human rights point of view—​the sessions of its subsidiary organs, some international conferences and even some treaty-​based organs.62 This power has survived the axing of the Commission on Human Rights and remains highly relevant in the era of the Human Rights Council. Indeed, the most that human rights NGOs are likely to know about ECOSOC these days, is that it is the body that decides what how much speaking time they will be allowed before the Commission. It is also the one area of ECOSOC activity that has garnered sustained academic interest.63 In an age where it has become commonplace to say that NGOs increasingly shape the global human rights agenda, it would seem to make a crucial difference which NGOs get to participate in that debate and under what conditions. Short of conducting or even of having much influence on human rights debates, therefore, the ECOSOC can at least ‘control the gates’ of the organs where these debates are held. The Council has thus been busily—​and not always felicitously—​involved, year after year, in the process of accrediting NGOs before it and its subsidiary organs. Indeed, it has increasingly touted, beyond its basic gate keeping function, its role in being responsive to non-​state actors generally and to engage them, on the basis of Article 71 of the Charter. 61 See Article 71 of the UN Charter. 62 In 1987, for example the Council set an important precedent when it agreed to arrangements by which NGOs can make written submissions to the Committee on Economic, Social and Cultural Rights in connection with its consideration of reports by States Parties to the Covenant. ECOSOC Res 1987/​5 (26 May 1987) para 6. 63 A Zettler, ‘NGO Participation at the United Nations: Barriers and Solutions’ [2009] ECOSOC Civil Society Network; P Willetts, ‘From “Consultative Arrangements” to “Partnership”:  The Changing Status of NGOs in Diplomacy at the UN’ (2000) 6 Global Governance 191; F Vabulas, ‘What Is a Seat on the ECOSOC NGO Committee Worth? Exploring the State Motivations and Benefits of Granting UN Access to NGOs’ APSA 2011 Annual Meeting Paper; W Schoener, ‘Non-​Governmental Organizations and Global Activism: Legal and Informal Approaches’ [1997] Indiana Journal of Global Legal Studies 537; D Otto, ‘Nongovernmental Organizations in the United Nations System: The Emerging Role of International Civil Society’ (1996) 18 Human Rights Quarterly 107; K Martens, ‘Bypassing Obstacles to Access: How NGOs Are Taken Piggy-​Back to the UN’ (2004) 5 Human Rights Review 80; M Jeffords, ‘Turning the Protestor into a Partner for Development: The Need for Effective Consultation between the WTO and NGOs’ (2002) 28 Brooklyn Journal of International Law. 937; N Hachez, ‘The Relations Between the United Nations and Civil Society: Past, Present, and Future’ (2008) 5 International Organizations Law Review 49; M Gunter, ‘Toward a Consultative Relationship between the United Nations and Non-​Governmental Organizations’ (1977) 10 Vanderbilt Journal of Transnational Law 557; A Clark, E Friedman, and K Hochstetler, ‘The Sovereign Limits of Global Civil Society: A Comparison of NGO Participation in UN World Conferences on the Environment, Human Rights, and Women’ (1998) 51 World Politics 1; C Breen, ‘Rationalising the Work of UN Human Rights Bodies or Reducing the Input of NGOs? The Changing Role of Human Rights NGOs at the United Nations’ (2005) 5 Non-​State Actors and International Law 101; J Aston, ‘The United Nations Committee on Non-​Governmental Organizations: Guarding the Entrance to a Politically Divided House’ (2001) 12 European Journal of International Law 943; C Alger, ‘Evolving Roles of NGOs in Member State Decision-​Making in the UN System’ (2003) 2 Journal of Human Rights 407; C Alger, ‘Strengthening Relations between NGOs and the UN System: Towards a Research Agenda’ (1999) 13 Global Society 393; C Alger, ‘The Emerging Roles of the NGOs in the UN System: From Article 71 to a People’s Millennium Assembly’ (2002) 8 Global Governance 93.

146  Frédéric Mégret ECOSOC’s attitude towards an often vocal, diverse and even seemingly disruptive international civil society has been marked by a measure of ambiguity. Although the Council rejects, in accordance with the Charter, the idea of NGO ‘participation’ in the UN, it has, generally speaking, acknowledged the ‘breadth of [NGOs’] expertise’ and their capacity to ‘support the work of the United Nations’.64 As regards human rights specifically, the Council has affirmed ‘the important role of NGOS in promoting human rights’ and expressed its appreciation of their ‘contribution to increasing public awareness of human rights issues’.65 At the same time, it is clearly contemplated that its arrangements concerning NGOs ‘should not be such as to overburden the Council or transform it from a body of coordination of policy and action . . . . into a general forum for discussion’.66 As regards UN convened international conferences, ECOSOC insists that ‘in recognition of the intergovernmental nature of the conference . . . active participation of NGOs, while welcome, does not entail a negotiating role’.67 The Council’s regime regarding NGO status as set out by resolution 1996/​31 is too complex to be described here in anything but its general lines. It does however reflect a tension between a desire to allow NGOs ‘in’ while at the same time retaining a measure of control over who exactly is able to do what. Since 1946, ECOSOC has maintained a standing Committee to keep track of NGOs, monitor their activities and recommend acceptance. The NGO Committee meets every second year and is currently composed of representatives of nineteen states. NGOs seeking to obtain consultative status on the basis of their interest in the field of human rights must ‘pursue the goals of promotion and protection of human rights in accordance with the spirit of the Charter of the United Nations, the Universal Declaration of Human Rights and the Vienna Declaration and Programme of Action’.68 Three categories of consultation for NGO applicants have been established. ‘General consultative status’ (category I) is granted to organizations that have an interest in most of the ECOSOC’s activities, large membership and broad representativity. ‘Special consultative status’ (category II) includes those NGOs which have an interest in specific aspects of the Council’s work, can make ‘occasional and useful contributions’, and are reasonably well known. The third group is called the Roster and includes NGOs with very limited interests or no proven record. Different rights come with different categories, and the ECOSOC regulates down to the smallest details (eg, the number of words of the declarations that each category can make) the accruing benefits. All categories may send representatives to public meetings of the Council and its subsidiary bodies for example, but only categories I and II may submit written statements for circulation to Members of the Council and only Category I may make oral presentations as of right. NGOs on the Roster are not excluded from being read or heard, but they must receive a Council invitation for each debate in order to do so. Despite attempts in recent years to cut back on the few rights and privileges

64 ECOSOC Res 1996/​31 (25 July 1996) preamble. 65 E/​1998/​L.23 (28 July 1998) preamble. 66 Ibid, para 19. 67 Ibid, para 50.

68 ECOSOC Res 1996/​31 (25 July 1996).

The Economic and Social Council  147 which NGOs have, including the right of access to buildings and conference rooms (which implies access to government representatives), the categories seem to have been fairly stable over time. In the early years, NGO entry was a highly sensitive political question. But it is fair to say that by the time its principle had been accepted it became, despite the odd protest,69 a fairly sleepy affair until the 1990s. Of course, the Committee’s work was informed by a certain amount of political prejudice depending on the activities of the NGO and which State(s) it annoyed. Applications could take a long time and be (according to the prevalent euphemism) ‘deferred’: the Lawyers Committee for Human Rights, for example, had to wait for about eight years before it obtained consultative status. Moreover, some NGOs had been targeted for status withdrawal.70 Well-​known NGOs, however, were unlikely to be denied consultative status for long, and most of the prominent human rights NGOs now have first category status. Once obtained, moreover, that status was unlikely to be lost and, even in case of abuse, the Committee has often been content with a general appeal to observe the relevant rules.71 The emergence of a new, more radical generation of NGOs in what is in some ways a more polarized international context for the purposes of human rights, however, has rekindled the debate from the late 1990s onwards, prompting some NGOs to speak of a ‘backlash’ against them. China, Russia, Sudan and Cuba or Venezuela in particular, have come out strongly against NGOs that had criticized their human rights records. As a result, some NGOs have been denied consultative status from the start. The association Human Rights in China, for example, which was founded by Chinese democrats, was refused NGO status at the UN under the pretext that since its members were Chinese, it first had to obtain the agreement of Beijing. Over the last decade, a number of NGOs have found that their accreditation is in some cases denied but more often simply deferred. Often states ask a range of questions about the nature of their activities, the existence of partnerships or the sources of their funding. Not all of these queries are illegitimate, and there is an interest in particular in ensuring that very marginal NGOs with little prospect of making meaningful contributions will be granted status. On the other hand, denial or deference of consultative status often reflects quite explicit biases. This has been particularly the case of civil society groups working for the rights of the LGBTQ community, or even women’s reproductive and sexual rights, as well as issues linked to the protection of ethnic or cultural minorities or touching on the topic of caste.

69 For example at its 1991 session the Committee on NGOs heard criticism of Human Rights Watch and the International League for Human Rights by Cuba. The Cuban representative even submitted a written attack denouncing the activities of the former group. E/​1991/​43. 70 In 1950 the International Association of Democratic Lawyers and the International Organization of Journalists were expelled from consultative status while the World Federation of Democratic Youth was demoted to the Register. ECOSOC Res 334A (Xl) (20 July 1950). Four years later the Women’s International Democratic Federation was also expelled. ECOSOC Res 529B (XVII) (6 April 1954). 71 Report of the Secretary General, ‘Overall Review of the statistical work of the International Organisations’, E/​ 1987/​22 (26 May 1987) paras 26–​45.

148  Frédéric Mégret At times, pressure has mounted to rein in NGOs already endowed with some sort of status. While some of the reasons for claiming withdrawal are clearly pretexts,72 others do raise some legitimate questions about the nature of NGO participation. One very sensitive and long-​simmering issue with a number of states is the fact that certain NGOs have seemingly allowed themselves to be turned into flags of convenience by opposition groups in various countries that would not otherwise gain easy access. The Transnational Radical Party, for example, incurred the wrath of Russia after it accredited and gave the floor to a Chechen representative. Similarly, Christian Solidarity International has been intensely criticized by Sudan for sending the Sudan People’s Liberation Army leader John Garang as its representative. And Cuba sought to obtain the withdrawal of Freedom House’s consultative status, after it accredited on its delegation a member of an organization close to anti-​Castro circles. The regulations concerning consultative status do anticipate that it can be withdrawn in case of ‘clear abuse of status’.73 The NGOs responsible for such abuses received various sanctions ranging from temporary to permanent loss of consultative status. But to the extent that some of them issued formal apologies and that the incriminated episodes were ‘one off ’ instances that did not form part of a systematic pattern of breach, the NGO committee’s heavy-​handedness has been criticized by those who point out that it had allowed itself to be bullied by a minority of vociferous states. There is often a ‘fox guarding the hen house’ quality to the Committee on NGOs given the often dominant representation of states that have long had very repressive practices towards civil society. The committee is probably one of the most politicized area of the ECOCOC’s work, one of the few in which a minority of states take a very significant and hardly innocuous interest. Apart from cases of flagrant abuse, the withdrawal of consultative status remains a worrying trend when little more than accusations of ‘politically motivated acts’ are at stake, and some NGOs simply seem to be the targets of retaliation. Evidently, much of human rights work is political in nature, and such denunciations often reflect little more than the displeasure of states at some of the criticism they have received, a displeasure that will often find convenient relays among like-​minded states. For example, in 2015, the ‘roster status’ of NGOs African Technology Development Link and the African Technical Association were withdrawn by the Committee on Non-​Governmental Organisations following a request by Pakistan. Both NGOs were notified only a few days before about the request and therefore did not have the time to mount a defence of their record. The voting record of the committee shows a clear split between Western states and a coalition of often authoritarian states. Increasingly, loose accusations of ‘ties with terrorism’ have been levelled at some NGOs, at times with little push back from third states. 72 The most heard argument from states is that NGOs used UN facilities (Secretariat, photocopying, translator) which they were not entitled to. China, for example, accused Freedom House of providing unauthorized interpreter services during the Human Rights Commission meeting to translate for Chinese-​speaking members of their delegation; Russia criticized the transnational radical party for promoting paedophilia when all it had done was organize conferences on the issue in cooperation with the European parliament. 73 ECOSOC Res 1996/​31 (25 July 1996) para 57.

The Economic and Social Council  149 The Committee’s record has thus come under a certain amount of criticism. Despite its overall achievement in allowing so many NGOs in, ECOSOC’s record would seem to be tainted by its vulnerability to political pressure, precisely when it comes to some of the most critical human rights questions of the day.

3.3 Conclusion ECOSOC’s role in furthering the cause of human rights has to be minimally acknowledged, if only to show how once it had reinforced the Commission and the Sub-​ Commission by authorising the 1235 and 1503 procedures. However, early on it also it condemned itself to a second role vis-​à-​vis its own subsidiary organs. Nowadays, the Council has basically divested itself of any significant human rights role. This is probably no great loss. Its relatively soft-​spoken culture of compromise, its unwillingness to call things by their name or to designate specific states made it uniquely unsuited to the polarization of human right debates. Yet the feeling remains that ECOSOC could and perhaps even should do more than it has done so far, even in a Human Rights Council era where it no longer has any supervisory functions. ECOSOC’s work in UN wide coordination and dialogue with the Bretton Woods institutions could raise its relevance for human rights. ECOSOC has managed to adopt Ministerial communiqués on ‘eradicating poverty’, ‘Market Access’, ‘development and international cooperation’, ‘gender equality’, ‘rural development’ or ‘public health,’ all of which could have used the opportunity to make a connection with human rights, as the one on ‘gender equality’ did.74 It has also been suggested that ECOSOC could be called upon to have a greater role in the maintenance of international peace and security,75 in ways that might more explicitly connect its work to rights issues. The risk is that while Secretary-​General-​initiated UN reform increasingly takes human rights as its central point, ECOSOC will fall back behind this trend or miss it altogether. It is noteworthy, in this context, that the so-​called ‘Global Compact’, the attempt to forge more systematic links between the UN and businesses, should have gone ahead without so much as a nod from ECOSOC, as if such a strategic leap for the institution could easily be taken without the patronage of its main economic and social coordinating body. In this context, that the Council’s role as the more or less benign gate keeper should be the most notable things that can be said about its human rights role, is probably a telltale sign of ECOSOC’s marginality to human rights debates, and the marginality of human rights debates to its activities.

74 Ministerial declaration of the high-​level segment of the substantive session of 2010 of the Economic and Social Council, Implementing the internationally agreed goals and commitments in regard to gender equality and empowerment of women (2010). 75 C Breen, ‘The Necessity of a Role for the ECOSOC in the Maintenance of International Peace and Security’ (2007) 12 Journal of Conflict and Security Law 261.

4 The International Court of Justice Bruno Simma

The International Court of Justice is one of the UN’s principal Charter bodies, and its principal judicial organ. As such it hears cases brought by states against others and can render advisory opinions sought by certain organs of the UN and international organizations authorized to do so, both of which bear on a wide range of international legal issues. Like other Charter organs reviewed in this section, the ICJ is not specifically a human rights body, but its jurisprudence may have, indeed has had, an impact on international human rights law. As such, the Court and its activity can be considered a part of the international human rights regime. Because the ICJ is an institution tasked with rendering justice according to international law it is in some ways naturally suited to the development of international legal issues including international human rights law. Conversely, the fact that it is traditionally very much an inter-​state jurisdiction may limit its ability to deal with human rights issues which are traditionally thought of as arising within states rather than between them. When and if it does, that may be a mixed blessing if the interpretation of human rights by the Court takes human rights law in a more statist direction. This chapter proposes to study the interpretation and application of human rights by what has been called ‘the gate-​keeper and guardian’ of general international law1—​as compared to the ‘softer’, more politically and policy-​inspired handling of human rights in other institutions of the UN Charter-​based system—​both with regard to its development over time and the current state of the matter.2 It will do so free of undue deference to the Court, thus engaging in a sort of reality check of the almost stereotypically positive treatment and the rather uncritical praise for the achievements of the ICJ as a protector of human rights, to be found in a large part of the existing literature on the topic. To assess the linkage of the Court and human rights is to ask two questions: first, has the development of international human rights law had an impact on the jurisprudence 1 These expressions were used with regard to a different branch of international law by J Vinuales, ‘The Contribution of the International Court of Justice to the Development of International Environmental Law’ (2008) 32 Fordham International Law Journal 232, 258. 2 For the most comprehensive academic treatment of the topic see G Zyberi, The Humanitarian Face of the International Court of Justice (Intersentia, 2008); since then, see R Higgins, ‘The International Court of Justice and Human Rights’ in R Higgins, Themes and Theories: Selected Essays, Speeches, and Writings in International Law (Oxford University Press, 2009) 639; J Grimheden, ‘The International Court of Justice—​Monitoring Human Rights’ in G Alfredsson et al (eds), International Human Rights Monitoring Mechanisms. Essays in Honour of Jakob Th. Moeller (Martinus Nijhoff, 2009) 249; S Sivakumaran, ‘The International Court of Justice and Human Rights’ in S Joseph and A McBeth (eds), Research Handbook on International Human Rights Law (Edward Elgar Publishers, 2010) 299.

152  Bruno Simma of the Court? Secondly, and vice versa, has the jurisprudence of the Court contributed to this development and if yes, how? The following will attempt to provide some tentative (and necessarily brief) answers to these questions. In so doing, two phases in the engagement of the Court with human rights matters will be distinguished: a—​long—​ first phase marked by a certain restraint on the part of the Court which is probably a reflection of the states parties to its statute’s own reservations; and, following this, a second phase marked by recent developments indicating a greater degree of readiness of the Court decide human rights questions in a direct and straightforward way.

4.1  Human rights before the Court in a first phase: hesitation and restraint After the re-​birth of the Hague Court in 1945/​46, expectations by observers and potential ‘clients’ of the Court as to the contribution of what now had become the principal judicial organ of the United Nations to the realization of the UN’s human rights agenda appear to have been rather low.3 This was probably due to patterns that had become discernible in the jurisprudence of the ICJ’s predecessor, the Permanent Court of International Justice, touching upon issues that we would now regard at least as human-​rights-​related. While this case law had displayed some remarkably progressive ‘sparks’ in several advisory opinions rendered on the basis of the League of Nations’ system of protection of minority (group) rights, the Permanent Court’s jurisprudence in contentious cases can only be described as having been pronouncedly deferential to national sovereignty:  limitations of sovereignty were not to be presumed, treaty provisions stipulating such limitations were to be interpreted restrictively, the Lotus principle dominated, and so forth. As against such foreboding, the new Court’s case law dealing with, or at least somehow touching upon, human rights issues in specific ways over time turned out to be richer, and certainly less negative, than expected. Of course, opportunities for the Court to devote itself to human rights questions will depend almost totally on the nature of the cases brought to The Hague. It was natural, therefore, that case law with human rights elements would develop in tandem with the widening and thickening of international human rights as a growth industry within post-​World War II international law. However, just as the development of human rights as a body of law and institutions at the global (UN) level took several decades to progress beyond standard-​setting and extend to—​still very limited—​implementation, the role of the Court as an interpreter and applier of human rights law unfolded gradually and in rather meandering ways.

3 Philip Alston brought to my attention a report of the Australian delegation to the Second Session of the UN Commission on Human Rights in December 1947, according to which in the course of the discussion on implementation of the future ‘Bill of Human Rights’, the United Kingdom proposed to invest the ICJ with the power to give advisory opinions on human rights, which could be submitted for action to the General Assembly. The report adds: ‘Subsequent discussion demolished this view’ (Document on file with the author).

The International Court of Justice  153 In what may be described as a first phase in the engagement of the ICJ with human rights, the actual purport of human rights in the cases concerned as well as the contribution of the Court’s jurisprudence to their development, was rather limited. This is despite the fact that a certain number of cases arose in which human rights arguments played some role, sometimes in circumstances in which one would not expect human rights issues to arise at all. If one tried to run through the relevant judgments and advisory opinions rendered during this first phase and, in doing so, group the case law according to the relevance of human rights considerations, three clusters might be distinguished (with some decisions falling into more than one of them). In a first group of decisions of the Court, human rights considerations appeared in more or less incidental ways: the legal reasoning in these cases essentially turned around matters which had nothing to do with human rights, or in regard to which human rights played a mere subordinate role and were thus mentioned more or less obiter, not necessarily in an entirely positive, fully welcoming sense. Corfu Channel (1949), Barcelona Traction (1970), Tehran Hostages (1980) and the Vienna Consular Convention cases, LaGrand (2001) and Avena (2004), belong to this group. The first-​ mentioned case arose in the context of naval operations in the aftermath of World War II and thus touched upon international jus in bello and humanitarian law rather than human rights law in the strict doctrinal sense. In dealing with the obligations of coastal states in maritime zones under their jurisdiction, the Court strengthened its confirmation of a duty on the part of these states to clear their territorial sea of mines with a remarkably humanitarian appeal, by referring to ‘obligations . . . based on . . . certain general and well-​recognised principles’, among them ‘elementary considerations of humanity’.4 In its Barcelona Traction Judgment of 1970, the Court, at the outset of its discussion on the conditions of diplomatic protection of shareholders, out of the blue introduced a distinction between bilateral obligations arising in that area and a new category of obligations erga omnes, among which it counted the prohibition of genocide and obligations deriving from ‘the principles and rules concerning the basic rights of the human person’, before returning to the international legal aspects of company and shareholders law.5 Ten years later, in the Tehran Hostages case, the ICJ condemned the treatment of the US diplomatic and consular personnel detained in Iran as incompatible, inter alia, ‘with the fundamental principles enunciated in the Universal Declaration of Human Rights’.6 The LaGrand and Avena cases will be considered in a later, more specific, context as showing that there were instances in which the Court actually avoided taking up human rights questions, even though such a categorization of matters in dispute was offered to it on a silver plate, as it were. What the before-​ mentioned cases belonging to this first group have in common is that the Court referred to human rights in a context distinct from that branch of the law, with these

4 Corfu Channel, (United Kingdom v Albania) (Judgment, Merits) [1949] ICJ Rep 4, 22. 5 Barcelona Traction, Light and Power Company Limited, (Belgium v Spain) (Judgment) [1970] ICJ Rep 3, 32, 47. 6 United States Diplomatic and Consular Staff in Tehran, (United States v Iran) (Judgment) [1980] ICJ Rep 3, 42.

154  Bruno Simma references lighting up the sky, as it were, for a short moment before the Court returned to more mundane matters. The situation is similar in a second cluster of cases in which human rights considerations occupied somewhat more space, but were still more in the nature of an occasion for the Court, a trigger, to engage in discussion of matters different from human rights law proper, even though the subjects might somehow be linked technically. The Court’s Advisory Opinion on Reservations to the Genocide Convention (1951) is probably the best example.7 This Opinion, while hinging on a treaty that could be called the first human rights instrument created within the United Nations, yielded relatively little with regard to the specific legal features of the Genocide Convention; instead, in a formidable exercise of judicial law-​making, it crafted major parts of what subsequently became the contemporary regime of reservations to multilateral treaties in general. Arguably, a similar triggering, but ultimately ancillary, role was played by human rights in the Court’s Advisory Opinions on the Interpretation of Peace Treaties (1950), focusing on the operability of treaty provisions on dispute settlement;8 in the three Advisory Opinions rendered on certain technical aspects of the supervision by the UN of the international status of South West Africa (1950, 1955, 1956);9 in the 1986 Nicaragua Judgment’s refusal to accept the use of force on the part of the United States as an appropriate method to ensure respect for human rights;10 as well as in the two Advisory Opinions by which the Court confirmed the immunities of UN Special Rapporteurs in the field of human rights by recognizing their status as UN experts on mission and thus strengthened the UN’s human rights machinery, that is, in the Mazilu case (1989)11 and ten years later again in Cumaraswamy (1999).12 All of these cases managed to mention human rights without actually quite being about human rights. A third group consists of a number of instances in which the Court developed the right of self-​determination of peoples. These are mentioned here because in the human rights doctrine developed and pursued by the United Nations for several decades, the realization of self-​determination in the context of decolonization was regarded as the conditio sine qua non for the enjoyment of individual human rights and self-​determination is indeed a right recognized as such in the two covenants. Thus, in a number of decisions and advisory opinions on South West Africa, the Court dealt with this right in regard to some more technical questions on international 7 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 15. 8 Interpretation of Peace Treaties with Bulgaria, (Hungary and Romania) (Advisory Opinion, First Phase) [1950] ICJ Rep 65; Interpretation of Peace Treaties with Bulgaria, (Hungary and Romania) (Advisory Opinion, Second Phase) [1950] ICJ Rep 221. 9 International Status of South West Africa, (Advisory Opinion) [1950] ICJ Rep 128; Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa, (Advisory Opinion) [1955] ICJ Rep 67; Admissibility of Hearings of Petitioners by the Committee on South West Africa, (Advisory Opinion) [1956] ICJ Rep 23. 10 Military and Paramilitary Activities in and against Nicaragua, (Nicaragua v United States) (Judgment) [1986] ICJ Rep 14, 134–​5, para 268. 11 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, (Advisory Opinion) [1989] ICJ Rep 177. 12 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, (Advisory Opinion) [1999] ICJ Rep 62.

The International Court of Justice  155 supervision.13 In the process, it also drew certain substantive conclusions, carrying both positive and decidedly negative messages for the anti-​apartheid and wider human rights community: while in its 1971 Namibia Opinion, the Court confirmed the legality of the termination of South Africa’s Mandate by the UN General Assembly in 1966 and set up legal defences against the plundering of the natural resources of South West Africa (now Namibia),14 the preceding final (1966) judgment in the South West Africa cases had shocked liberal observers and the overwhelming community of states by its denial of legal standing to the two African states which had brought the issue of apartheid in South West Africa before the Court.15 These cases were followed by the Advisory Opinion on the Western Sahara,16 which met with general acclaim. This is quite contrary to the reception of the ICJ’s refusal, twenty years later, to engage with the merits of the East Timor case despite paying lip-​ service to the right of self-​determination as an entitlement erga omnes.17 The most recent judicial pronouncements on the right to self-​determination are to be found in the Advisory Opinion on the Wall of 200418 and—​in an extremely held-​back way—​in that on the Kosovo Declaration of Independence of 2010,19 yielding very different results in the eyes of the protagonists of a progressive reading of this right: confirming it in no unclear terms in favour of the Palestinian population of the West Bank, while beating around the bush and keeping self-​determination essentially under a tight lid in the second-​mentioned instance. On the other hand, what might deserve to be mentioned in conclusion of this short tour d’horizon of the jurisprudence of the Court turning ‘around’ or otherwise somehow technically connected with human rights, are the two judgments in which the United States was found in breach of the obligation deriving from the 1963 Vienna Convention on Consular Relations to inform detained foreign nationals of their right to seek consular assistance from their home country: LaGrand (2001) and Avena (2004).20 In the LaGrand case, Germany had argued that the entitlement of a foreigner to be informed of this right without delay under Article 36, paragraph 1, of the Consular Convention was not only an individual right but had over time assumed the character of a human right proper, akin to an international guarantee of a fair trial. Though admittedly progressive, 13 International Status of South West Africa, (Advisory Opinion) [1950] ICJ Rep 128; Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa, (Advisory Opinion) [1955] ICJ Rep 67; Admissibility of Hearings of Petitioners by the Committee on South West Africa, (Advisory Opinion) [1956] ICJ Rep 23; see also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), (Advisory Opinion) [1971] ICJ Rep 16. 14 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), (Advisory Opinion) [1971] ICJ Rep 16. 15 South West Africa, (Ethiopia v South Africa) (Judgment, Second Phase) [1966] ICJ Rep 6. 16 Western Sahara, (Advisory Opinion) [1975] ICJ Rep 12. 17 East Timor, (Portugal v Australia) (Judgment, Jurisdiction) [1995] ICJ Rep 90. 18 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (Advisory Opinion) [2004] ICJ Rep 136. 19 ‘Request for Advisory Opinion’, Accordance with international law of the unilateral declaration of independence in respect of Kosovo [2008] ICJ General List 141, 9 October 2008. 20 LaGrand (Germany v United States of America) (Judgment) [2001] ICJ Rep 466; Avena and Other Mexican Nationals (Mexico v United States of America) (Judgment) [2004] ICJ Rep 12. In Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Judgment) [2010] ICJ Rep 639, the Court found the Democratic Republic of the Congo was also in breach of Article 36(1)(b) of the Vienna Convention on Consular Relations, see paras  90–​7.

156  Bruno Simma this position reflected the approach that not only the UN General Assembly had already adopted in the 1980s, but that above all the Inter-​American Court of Human Rights had followed in an advisory opinion on the question of consular protection rendered in 1999 upon the request of Latin American countries, above all Mexico, most strongly affected by the practical application of the death penalty in the United States. In its LaGrand Judgment, the Hague Court avoided pronouncing on the issue and thus taking any stand on a position that had been adopted by another international court but remained controversial between the parties to the case before it. Having found that the rights accorded to the LaGrand brothers by paragraphs 1 and 2 of Article 36 of the Consular Convention and violated by the United States had the character of individual rights, the ICJ declared that it did not need to examine Germany’s additional argument claiming a human rights status for these entitlements.21 This diffidence did not deter Mexico, in the Avena case brought in 2003, from reintroducing the argument unsuccessfully pleaded by Germany with even greater emphasis and attaching farther-​reaching consequences to it, by claiming that the Article 36 right ‘is a fundamental human right that constitutes part of due process in criminal proceedings . . . this right as such is so fundamental that its infringement will ipso facto produce the effect of vitiating the entire process of the criminal proceedings conducted in violation of this fundamental right’.22 The Court first replied, in confirmation of LaGrand, that whether or not the Vienna Convention rights were human rights was a matter that it did not have to decide, and then went on to observe ‘that neither the text nor the object and purpose of the Convention, nor any indication in the travaux préparatoires, support the conclusion that Mexico draws from its contention in this regard’.23 It should by now have become clear why the LaGrand and Avena Judgments are included, despite being relatively recent among the case law belonging to a phase marked by a certain degree of hesitation and constraint on the part of the ICJ vis-​à-​vis human rights.24 The decision was rendered at a time when the Hague Court, as a matter of

21 LaGrand [2001] ICJ Rep 466, 494. 22 Avena, [2004] ICJ Rep 12, 60–​1. 23 Avena, [2004] ICJ Rep 12, 61.

In earlier publications on the LaGrand/​Avena saga,—​B Simma, ‘Eine endlose Geschichte: Artikel 36 der Wiener Konsularkonvention in Todesstrafenfällen vor dem IGH und amerikanischen Gerichten’ in P Dupuy et al (eds), Völkerrecht als Wertordnung. Common Values in International Law. Essays in Honour of Christian Tomuschat (N.P. Engel, 2006) 423, 436; B Simma and C Hoppe, ‘The LaGrand Case: A Story of Many Miscommunications’ in J Noyes et al (eds), International Law Stories (Foundation Press/​Thomson/​West, 2007) 371, 388–​9; B Simma and C Hoppe, ‘From LaGrand and Avena to Medellin—​A Rocky Road Toward Implementation’ (2005) 14 Tulane Journal of International and Comparative Law 7, 11–​13, I commented on the reactions by the ICJ to the Mexican contentions in Avena as to the human rights character of the Article 36 rights and the consequences of their violation in a way that might have led to misunderstandings. Let me therefore clarify that in para 124 of its Avena Judgment, the Court repeated what it had already stated in LaGrand, namely that it did not have to decide whether or not these rights qualified as human rights. What it did not find a basis for in its interpretation of Article 36, paragraph 1, subparagraph (b), however, were the far-​reaching conclusions Mexico had drawn from the alleged character of the Article 36 rights as fundamental human rights, to the effect that violations of these rights would ipso facto vitiate the entirety of criminal proceedings suffering therefrom. This is what I meant when in the Tulane Journal 2005 I wrote that in para 124, the ICJ ‘curtail[ed] the potential reach of a human right to consular notification’. 24 Even though the Court’s avoidance of an answer to the question of the human rights character vel non of the individual right of consular assistance was due less to problems of principle with such characterization than to the fact that the United States had made a rather unattractive effort in its oral pleadings in LaGrand to have the

The International Court of Justice  157 general policy, still avoided as much as it could supporting its conclusions by reference to the decisions of other international courts and tribunals. This was before 2007, when it changed its position diametrically in the Genocide case, initially der Not gehorchend, nicht dem eignen Triebe (that is, more out of necessity than of conviction).25 And indeed, decisions rendered subsequent to that landmark case do exhibit a greater willingness to link with the case law of such courts and human rights treaty bodies.26

4.2  The more recent picture: a qualitative leap? Within the last two decades or so, the picture hitherto presented has begun to change: human rights cases have fared more prominently on the Court’s docket than they did before. This is true not only from the viewpoint of sheer numbers, but also from that of quality. While in the long first-​phase described above, human rights considerations essentially arose in incidental ways and played subordinate or marginal roles, the Court began to tackle human rights issues in more straightforward ways and turned to decide cases focusing squarely on allegations of human rights violations. This development includes a broader reckoning with international humanitarian law.

(a)  A gradual build-​up of human rights-​related cases The story begins with the Nuclear Weapons Advisory Opinion of 1996, in which the issue of whether, and in what circumstances, the threat or use of nuclear weapons could result not only in violations of international humanitarian law but also of human rights law properly so called, constituted one of the angles from which the ICJ approached the question posed to it by the General Assembly.27 The Court’s replies on the matter may not strike the reader as particularly comprehensive or penetrating, but the remarkable fact is that the Court for the first time squarely faced and developed a view on a human rights question, even though only in the abstract. The step from the abstract to the concrete was accomplished in the Wall Opinion of 2004,28 in which the Court found that Israel’s construction of the separation barrier/​ wall on occupied Palestinian territory had given rise to an entire series of violations of obligations erga omnes and juris cogentis, prominently among them obligations arising from human rights treaties to which Israel is a party as well as from international humanitarian law. Opinion rendered by the Inter-​American Court of Human rights on the Article 36 rights appear as a quantité negligeable, thus presenting the ICJ with a Pandora’s box it did not want to open. 25 In more recent decisions, the Court has found its way to a position the author would consider appropriate; cf the cases cited in the following footnote. 26 See the Diallo and the Belgium v Senegal cases discussed in detail below. 27 Legality of the Threat or Use of Nuclear Weapons, (Advisory Opinion) [1996] ICJ Rep 226, 239–​40. 28 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (Advisory Opinion) [2004] ICJ Rep 136, 184–​92.

158  Bruno Simma The Court’s next step was an advance from the stage of the advisory to the legally binding. It was taken in the Congo v.  Uganda Judgment of 200529—​the first judgment in the Court’s history in which a finding of human rights violations, combined with findings of violations of international humanitarian law, was included in the dispositif (with only Uganda’s Judge ad hoc dissenting). The Court arrived at the conclusion that the Ugandan forces had committed massive human rights violations and grave breaches of international humanitarian law in the territory of the Congo; and that Uganda had failed to protect the civilian population, not respected the principle of distinction between combatants and non-​combatants, incited ethnic conflicts and employed child soldiers. The Court considered that these acts were attributable to Uganda and concluded its reasoning with a list of the human rights treaties and other relevant instruments violated by the Respondent. In another of the cases brought by the Democratic Republic of the Congo against those of its neighbours that were involved in the Great Lakes wars from the late 1980s to the early 1990s, namely Congo v. Rwanda, the Claimant, inter alia, alleged violations of the Genocide Convention by Rwanda. The Court, however, decided that it did not have jurisdiction on that basis because Rwanda, the very country in which the most horrendous post World War II genocide had taken place in 1994, had excluded the legal effect of the Convention’s compromissory clause by way of a reservation, which the Court regarded as validly made.30 While this finding only followed its earlier jurisprudence,31 the Court took the opportunity to explain that even the character of substantive obligations of the Genocide Convention as jus cogens could not compensate for, or replace, the lack of consent, expressed by Rwanda’s reservation, to have the Court decide on the allegation of genocide. Five members of the Court found this position unsatisfactory enough to write a joint Separate Opinion32: the criticism expressed by President Higgins and Judges Kooijmans, Elaraby, Owada and Simma proceeds from the observation that it is highly problematic for a state to make a reservation excluding recourse to the monitoring or judicial machinery embodied in a human rights treaty, especially if such recourse constitutes the only option available to states parties to have questionable reservations to that treaty evaluated in an objective manner. The Separate Opinion notes the importance of the role of the ICJ in the achievement of the purposes of a treaty such as the Genocide Convention where, in the absence of a treaty body exercising supervisory functions, states are the only monitors of each others’ compliance with their

29 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), (Judgment Merits) [2005] ICJ Rep 168. 30 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.  Rwanda), (Judgment, Jurisdiction and Admissibility) [2006] ICJ Rep 6, 32–​3, para 68. 31 Legality of Use of Force (Yugoslavia v Spain) (Order, Provisional Measures) [1999] ICJ Rep 761, 772, paras 32–​3; Legality of Use of Force (Yugoslavia v United States of America) (Order, Provisional Measures) [1999] ICJ Rep 916, 924, paras 24–​5. 32 Armed Activities on the Territory of the Congo (Judgment, Jurisdiction and Admissibility) [2006] ICJ Rep 6, 14, 32–​3, para 65. For a critical view on this Opinion, see H Thirlway, ‘The International Court of Justice, 1989–​ 2009:  At the Heart of the Dispute Settlement System?’ (2010) 57 Netherlands International Law Review 347, 366–​71.

The International Court of Justice  159 treaty obligations and the Court is the only impartial third party to which states can have recourse in case of a dispute in this regard. Next in the line of ICJ decisions relevant in the human rights context is the Court’s 2007 Judgment in the Genocide Case that had been brought by Bosnia-​Herzegovina against Serbia as early as 1993.33 Like the two African cases described above, this litigation constituted a juridical Nebenkriegsschauplatz, ie, collateral action within the context of a wider political-​military dispute. This becomes clear if we confront both the submissions listed in Bosnia’s original application, squeezed—​unsuccessfully—​ through the needle’s eye of the Genocide Convention, and the concept of one single, overarching ‘genocide’ comprising the entirety of the hostile activities of the Serbs and the Bosnian Serbs in Bosnia-​Herzegovina put forward by the Claimant at the stage of the hearings thirteen years later. The actual outcome of the case was the Court following the findings of the ICTY, according to which one single incident of genocide, albeit of the utmost gravity, had occurred at Srebenica in July 1995, and declaring Serbia in breach of, most prominent among several violations, the obligation of prevention embodied in the 1948 Convention. Be this as it may, the case remains a human rights case, like the second Genocide Case, this time brought by Croatia against Serbia in 1999, in regard to which the Court, after having engaged in a truly remarkable effort to arrive at jurisdiction and admissibility in 2008, found seven years later that the mass atrocities committed by the Serbian forces in Croatia had lacked the specific intent (dolus specialis) to distinguish genocide from crimes against humanity.34

(b)  The core human rights cases since 2010 i. A great step ahead: Diallo Once we leave the politically-​charged instances just described, we arrive at the case of Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), decided by the Court in 2010.35 From the viewpoint of the handling of human rights-​ related matters by litigants as well as by the ICJ itself, Diallo displays very different characteristics. At first glance, it appears as a case involving diplomatic protection, rather old-​fashioned as such, exercised by Guinea through an application to the Court. But a closer look reveals features that are pertinent to our topic. The case arose from the mistreatment of a Guinean businessman in the DRC, mistreatment that Mr. Diallo experienced both personally, by being illegally arrested and detained in the Congo and ultimately expelled from the country, and through the consequences which these and other measures of the Congolese authorities had on the fate of two companies which

33 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment, Merits) [2007] ICJ Rep 43, 70. 34 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Judgment, Preliminary Objections) [2008] ICJ Rep 412. The judgment on the merits of the case of 3 February 2015 can be found on the Court’s website. 35 Ahmadou Sadio Diallo (Judgment) [2010] ICJ Rep 639.

160  Bruno Simma the victim controlled, regarded by the Claimant as a case of indirect expropriation. The case involved aspects both of economic (company/​shareholders) law and human rights law instruments on which Guinea relied concerning the treatment of Mr. Diallo personally, namely the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights. What is noteworthy in our context is that, while in Guinea’s original Application allegations of violations by the DRC of obligations relating to Mr. Diallo’s ownership of two companies had enjoyed priority over the claims of violations of Mr. Diallo’s human rights, this underwent a marked change after the Court in 2007 had declared the most important company and shareholders law claims inadmissible.36 From then on, the human rights aspects rose like a phoenix from the ashes of the case, as it were, and came to enjoy priority, both in the parties’ pleadings and in the 2010 Judgment of the Court. The ICJ turned to the relevant provisions both in the ICCPR and in the African Charter and found that the conditions of lawful expulsion of aliens and of arrest and detention as secured in both instruments had been violated. Another remarkable feature of the Diallo Judgment is the way in which the ICJ handled the fact that the case had been brought as a means of diplomatic protection of Mr. Diallo’s rights by his state of nationality. What the Court managed to do in this regard was to emancipate the case from the dogmatic straitjacket of diplomatic protection:  the judgment goes on speaking of Mr. Diallo’s individual human rights as such and does not even try to translate them back into rights of his home State à la Mavrommatis; it engages in straightforward assessments of breaches of human rights treaty provisions and in so doing expressly refers to, and follows, the jurisprudence of UN and regional monitoring bodies, without engaging in any of the exercises in coyness that had marked the Court’s relationship with other international courts and tribunals before (that is, until the Genocide Case). The only occasion at which an element of traditional diplomatic protection resurfaced was with regard to the question of reparation for the injuries suffered by Mr. Diallo: such reparation was to be determined through negotiations between the parties, for which the Court set a rather tight deadline of six months.37 After this period of time had passed without the parties having reached agreement, the Court took the case back into its hands and on 19 June 201238 awarded Guinea (rather modest) compensation, reminding the claimant State that the sum awarded to it in the context of diplomatic protection was intended to provide reparation for the injury suffered by Mr. Diallo himself. What makes the Diallo case so interesting in our context is that an inter-​state mechanism was used in which the affected individual as the bearer of the human rights in question is represented at the diplomatic level by his State of nationality; while the

36 Ahmadou Sadio Diallo, (Guinea v Democratic Republic of the Congo) (Judgment, Preliminary Objections) [2007] ICJ Rep 582. 37 Ahmadou Sadio Diallo [2010] ICJ Rep 639, para 164. 38 For the judgment on the compensation owed by the Democratic Republic of the Congo to the Republic of Guinea see Ahmadou Sadio Diallo, (Guinea v Democratic Republic of the Congo) (Judgment on compensation) [2012] ICJ Rep 324.

The International Court of Justice  161 individual is the holder of the rights, the judicial enforcement of these rights remains entrusted to the State (faute de mieux, one could say, because in the case at hand, no other, specialized implementation machinery was available). In thus squaring the procedures of diplomatic protection and human rights as direct rights of the individual under international law, the Court in Diallo has made an important contribution to reconciling these two areas of the law in a progressive sense, further away from the spirit of Mavrommatis and in line with the recent efforts of the ILC.39 ii. A deplorable step back: Georgia v. Russia In 2011, the Court rendered another judgment in human rights matters, one which would be distinctly less destined to satisfy the supporters of a forceful role for the Court in support of human rights. It brought to an end (prematurely, in the view of the author) the case of Georgia v. Russia, submitted in 2008,40 in which the Applicant claimed that the Russian Federation, through the actions of its own organs as well as of the de facto authorities in South Ossetia and Abkhazia in and around Georgian territory, culminating in the armed conflict in August 2008, had breached the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) of 1965 by subjecting ethnic Georgians to discrimination and not preventing such ethnic discrimination by other participants in the conflict. Georgia combined its Application with a Request for the indication of provisional measures in order ‘to preserve [its] rights under CERD to protect its citizens against violent discriminatory acts by Russian armed forces, acting in concert with separatist militia and foreign mercenaries’.41 The Court followed the request and on 15 October 2008 issued an Order—​directed at both parties—​spelling out such measures.42 It accepted a prima facie basis for its jurisdiction, saw no territorial limitation to the reach of CERD, was not impressed by the argument of the Respondent that at no moment during the long dispute between the parties on the status of South Ossetia and Abkhazia had the rights and obligations deriving from CERD been relied upon and, with regard to the procedural preconditions set up in Article 22 of the Convention,43 found that issues relating to ethnic discrimination had been raised between the parties even though CERD had not been specifically mentioned. Thus an attempt to initiate discussions on matters that would fall under CERD had been made by Georgia and the respective conventional precondition had thus been fulfilled. The Order was adopted by a majority of eight votes to seven, which throws a light on the controversial nature of the case. 39 See the Separate Opinion of Judge Cançado Trindade in Ahmadou Sadio Diallo [2010] ICJ Rep 639, paras 222–​42. 40 Application of the International Convention on the Elimination of All Forms of Racial Discrimination, (Georgia v Russian Federation) (Judgment, Preliminary Objections) [2011] ICJ Rep 70. The present author both appended a Separate Opinion and participated in a joint Dissenting Opinion (at 142 and 188). 41 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) (Order of 15 October 2008) [2008] ICJ Rep 353, 354. 42 Ibid, 398. 43 ‘Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement’ (emphasis added).

162  Bruno Simma In the next phase of the proceedings, however, Russia put forward preliminary objections against jurisdiction and admissibility, one of which the Court accepted in its Judgment of 1 April 2011 by turning around 180 degrees and now (with its composition having changed in the meantime) deciding that Georgia had not fulfilled the condition of access to the Court set up in Article 22 of CERD.44 Two particular features of this case deserve to be mentioned. On the one hand, and if one brings oneself to look at the decision in a positive light, this was a case which, like the Balkan Genocide cases mentioned before, turned exclusively around a particular human rights treaty: within an inter-​State, and in this sense purely bilateral, framework, the Applicant accused the Respondent of having committed violations of its obligations under CERD—​an argument which confirmed the view, accepted by the Court, that the so-​called ‘objective’ nature of human rights treaty obligations does not deprive the other States parties to such a treaty of their right to claim enforcement of obligations due to them, side by side with the obligations owed to the individuals under the protection of the treaty in question.45 On the other hand, however, Georgia v. Russia was as far from constituting a ‘pure’ human rights case as one could get,46 because if there ever was an instance of ICJ litigation presenting all the features of a legal Nebenkriegsschauplatz, in the sense of a legal side-​show in a much wider political conflict, this was the one. iii. More than making up: Belgium v. Senegal Moving from one extreme to another, the case brought by Belgium against Senegal in February 2009 and decided by the Court on 20 July 2012,47 relating to the obligation to prosecute or extradite, may well be the most clean-​cut, ‘unpolitical’, as it were, human rights case so far handled by the Court. If a fully-​fledged droits de l’hommiste were to express it somewhat colloquially: this is a human rights case almost too good to be true. Belgium came to the Court to vindicate its right as a State party to the 1984 UN Convention against Torture (CAT) as well as under customary international law, to secure that Hissène Habré, the former dictator in Chad and alleged perpetrator of acts of torture during his violent reign in Chad in the 1980s, now present in Senegal, either be prosecuted by Senegal, or, failing such prosecution, be extradited to Belgium—​in other words, that Senegal fulfil its obligation of aut dedere aut judicare. The Applicant did not frame its request in terms of diplomatic protection of Belgian nationals except very marginally. The Application mentions that at the domestic level the case was triggered by complaints to the Belgian courts made, among others, by a Belgian national of Chadian origin and taken up by the Belgian judiciary in the exercise of the passive

44 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Judgment, Preliminary Objections) [2011] ICJ Rep 70, 130. 45 See B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994-​VI) 250 Recueil des Cours 217, 364–​75. 46 On this notion see infra 46. 47 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Rep 422.

The International Court of Justice  163 personality principle,48 but this link retreats far in the background in Belgium’s further pleadings and is mentioned only in passing in the Judgment’s treatment of the question of Belgium’s standing to bring the case.49 Essentially, Belgium construed its claims as deriving from a twofold but related basis: first, from its rights as a state in a particular situation with a specific interest in the case, since it was Belgium that had raised the matter of Senegal’s obligations under CAT with the Respondent; secondly, on the basis of the right of any State party to CAT to see to it that any other State party fulfil the obligation correlative to this right, to either prosecute or extradite. The Applicant regarded this obligation as arising erga omnes partes to the Convention. Belgium’s arguments thus proceeded from the exclusively inter-​state structure of the Convention: CAT contains nothing but a set of obligations for its States parties and nowhere expressly states the individual human right to be free from torture; rather, the Convention presupposes this right as consecrated in other human rights treaties—​‘underlying’ CAT, as it were—​like the ICCPR as well as in rules of general international law juris cogentis on combating impunity for international crimes. Significantly, Senegal appeared to agree with Belgium’s view of the situation in conventional as well as customary international law. Again, what we have before us here is an understanding of the rights and obligations arising for States parties to human rights conventions that does not lose itself in lofty constructs of ‘objective’ obligations under such treaties, with the respective rights belonging exclusively to individuals, or the like. Rather, it retains the emphasis on mutually-​bound States parties and their responsibility to keep the treaties alive. Belgium v. Senegal was also the first instance in which one of the main achievements of the International Law Commission in its Articles on State Responsibility of 2001, namely the distinction made in the context of invocation of responsibility between ‘injured States’ and ‘States other than injured States’,50 was tested in the Court. Belgium based its litigant status, and thus the admissibility of its claims, on its position not only as a State other than an injured State due to its being a party to CAT, that is, to a treaty embodying obligations erga omnes partes (ILC Article 48), but also as a specially affected state within the meaning of ILC Article. 42, because it was the Belgian courts that had been actively seized, some victims of Habré’s crimes now were of Belgian nationality (cf supra), and it was Belgium which had requested Senegal to either prosecute or extradite.51 In its Judgment, the Court, while not using the ILC terminology, followed the spirit underlying the Commission’s distinction. It identified CAT as a treaty embodying obligations erga omnes partes, in case of which ‘[a]‌ll the other States parties have a 48 ‘Application instituting Proceedings’, Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), ICJ General List 144, (17 February 2009), 5, para 3. 49 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Rep 422, 448. 50 See B Simma, ‘Human Rights and State Responsibility’ in A Reinisch and U Kriebaum (eds), The Law of International Relations—​Liber Amicorum for Hanspeter Neuhold (Eleven International Publications, 2007) 359. 51 See ‘Memorial of Belgium’, Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) [2010] ICJ Pleadings, paras 5.14–​5.18; and the confirmation of its position in the oral pleadings in ‘Verbatim Record 2012/​6’, Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), ICJ General List 144, 19 March 2012, 52.

164  Bruno Simma common interest in compliance with these obligations by the State in whose territory the alleged offender is present. That common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention’.52 From this it followed that Belgium, as a party to CAT, had standing to invoke the responsibility of Senegal for a number of breaches of the Convention which the Court then went on to confirm. Thus relying on the erga omnes partes structure of CAT obligations, the Court did not regard it as necessary to explore Belgium’s alternative argument of it being a specially affected State. Taking a step back and assessing this part of the Judgment as to its added value for the development of human rights doctrine by the Court, the following distinction can be made: viewed in the abstract, the verdict is decidedly positive. In the wake of the ILC’s 2001 broadening of the range of states entitled to invocation of responsibility and developing this entitlement into a jus standi before the Court, as well as by letting the concept of treaty obligations erga omnes partes share the dignity of that of obligations erga omnes in the sense of Barcelona Traction, the Judgment recognized the particular status of human rights treaties and provided them with sharper teeth, so to speak. Regarding the specific circumstances of the case at hand, however, while its option for the erga omnes partes solution as a matter of admissibility allowed the Court to avoid having to answer certain more difficult and disputed questions that would have posed themselves if it had (also) taken up the issue of the legal effect of the special interest claimed by Belgium, the Court’s solution deprived Belgium of its particular position (in ILC terms: of its quality as an injured state within the meaning of Article. 42) and reduced its status to that of just one state party to CAT among the omnes, with a corresponding limitation of the legal remedies at its disposal.53 But again, in the case at hand this negative side effect played no role because the Court dealt with admissibility and the merits in one and the same phase of the proceedings. The second feature of the Judgment deserving particular attention from the viewpoint of international human rights law is to be found in the context of the ICJ’s treatment of the temporal scope of the Convention, relating to the application of CAT’s provisions in question.54 The Court determined that Senegal’s obligation to prosecute commenced with CAT’s entry into force for Senegal in 1987; Belgium on its part, 52 Questions relating to the Obligation to Prosecute or Extradite (Judgment) [2012] ICJ Rep 422, 449. 53 Cf para 2 of ILC Article 48; see also the Declaration of Judge Owada, Questions relating to the Obligation to Prosecute or Extradite (Judgment) [2012] ICJ Rep 422, 468. Judges Skotnikov and Xue frontally attacked the majority’s erga omnes partes concept and the conclusions drawn from it in favour of a jus standi for the omnes (cf Separate Opinion of Judge Skotnikov, ibid, 481 passim; Dissenting Opinion of Judge Xue, ibid, 571). However, their argument to the effect that the permissibility of reservations to CAT and the optional nature of the inter-​state communications procedure contained in CAT Article 21 prove that the states parties to the Convention did not intend to create treaty obligations erga omnes partes, does not seem correct. As a very general observation, human rights treaties share the erga omnes partes nature of obligations diagnosed by the ICJ in Belgium v Senegal despite the abundance of reservations precisely to human rights treaties. What is called for here is a regime custom-​made for reservations to such treaties. More particularly, concerning the optional character of CAT’s Article 21, I share the view expressed in the Declaration of Judge Donoghue (ibid, 588), that here we have to do with two different matters. Again, several human rights treaties’ dispute settlement mechanisms are characterised by such flexibility. Procedural provisions in these treaties cannot detract from the erga omnes partes character of substantive obligations. 54 Questions relating to the Obligation to Prosecute or Extradite (Judgment) [2012] ICJ Rep 422, 456.

The International Court of Justice  165 was entitled to invoke the Respondent’s responsibility and request the ICJ to rule on Senegal’s compliance with effect from 1999, ie, when it itself became a party to the Convention. There appears to be nothing remarkable about these findings—​above all, it deserves to be emphasized that the Court does not equip the obligations of CAT with the mysteriously ‘objective’ character recognized for those under the European Convention of Human Rights in the (old) Strasbourg Commission’s Pfunders Decision of 196155 and since then accepted as an unquestioned mantra in the mainstream literature on human rights. However, in the middle of its discussion on the scope ratione temporis of the CAT provisions in question, in para 99 of the Judgment, the Court, rather abruptly, states that in its opinion, ‘the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens)’. The ICJ views this prohibition as grounded in a widespread international practice and the opinio juris of states since ‘It appears in numerous international instruments of universal application (in particular the Universal Declaration of Human Rights of 1948, the 1949 Geneva Conventions for the protection of war victims; the International Covenant on Civil and Political Rights of 1966, and the General Assembly resolution 3452/​30 of 9 December 1975 on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) and it has been introduced into the domestic law of almost all states; finally, acts of torture are regularly denounced within national and international fora.’ Such recognition by the ICJ of the customary and peremptory status of the prohibition of torture at the basis of CAT is to be welcomed. With it, the Court has finally confirmed what the ICTY (under its President Antonio Cassese) had already found the law to be in its Furundzija Decision fourteen years ago.56 Two observations are apt to somewhat dampen the enthusiasm of the human rights-​minded observer (at least the present one), however. First, what follows the single paragraph of the Judgment dealing with jus cogens is a big ‘however’: the temporal scope of the obligations deriving from the prohibition of torture remains limited to that of CAT. The 2012 Judgment thus replicates what the Court did to jus cogens in the first decision in which it gave up beating around the bush and used the term, six years earlier in Congo v. Rwanda: while it recognised that certain rules had become jus cogens, this did not mean that the consequences claimed to derive from this higher rank actually had to be drawn. Secondly, the way in which the Court’s explains the anchoring of the prohibition of torture in customary international law is cursory, to put it mildly, and compares unfavourably with the thorough analysis of the elements of the customary norms on state immunity made by the Court in the Germany v. Italy Judgment only half a year earlier (on which infra). Not a word is lost on the reasons etc. of the prohibition’s jus cogens nature or on the particular problems of determining the pedigree of human rights obligations deriving from 55 Austria v Italy, Application no 788/​60, [1961] 4, Euro Comm HR, 116; see also Simma, above n 45, 364. 56 Prosecutor v Anto Furundzija (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Case No. IT-​95-​17/​1-​T, 10 December 1998) [on the 50th anniversary of the Universal Declaration!], particularly from para 147.

166  Bruno Simma non-​treaty based sources.57 But of course we have not been spoiled by the Court in this regard and thus any judicial acknowledgment of the existence of jus cogens, however summary, is a welcome sign of the ICJ finally ridding itself of its blinders vis-​à-​vis progressive elements in international law. If a somewhat risqué observation might be allowed: Would we be totally off the mark in seeing a certain parallel here with Barcelona Traction as a ‘left turn’ following the Court’s 1966 South West Africa Judgment—​some, maybe unconscious, attempt to mitigate the disappointment to the ‘droits de l’hommistes’ caused by Germany v. Italy by what could be called a (slightly simplistic) turn in favour of human rights mantras in Belgium v. Senegal? Through this, the Court might be seen to have precariously sought a balance between more conservative and progressive trends in international law. iv. Human rights claims confronting more traditional law i) Arrest Warrant Our tour d’horizon of the Court’s recent human rights jurisprudence is not yet complete, however. We must now turn to a very particular category of cases, namely instances in which the Applicant based (part of) its claims on human rights norms, while the Respondent countered with defences resting on other, more traditional, premises of international law. The constellation in which this antinomy has posed itself to the Court so far has consisted of encounters between claims to criminal responsibility of individual perpetrators accused of war crimes or crimes against humanity, or claims to the delictual responsibility of states behind such crimes, on the human rights side, as it were, and, on the other, of the claim to jurisdictional immunity of these states, respectively of the responsible state organs. What these cases demonstrate is that in the ICJ as elsewhere (the European Court of Human Rights comes to mind), human rights arguments are far from winning the upper hand in all instances. This was already clear, rather painfully for the human rights community, in the Court’s 2002 Judgment in the Arrest Warrant (Yerodia) case between the Democratic Republic of the Congo and Belgium, in which the Court took the highly problematic view that former foreign ministers enjoy absolute immunity from the criminal jurisdiction of national courts including for past official acts constituting grave crimes against humanity, even incitement to genocide.58 If international human rights lawyers had nurtured the hope that the Court would somehow improve the less than human-​rights-​ friendly position it had taken in Yerodia by using the opportunity to do so presented by the case of Republic of Congo v. France brought in 2003,59 such hope would be disappointed as this Application was withdrawn in late 2010.60 It had its origin in judicial proceedings initiated in France against the President, the Minister of the Interior, and 57 See for instance B Simma and P Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ (1992) Australian Yearbook of International Law 12, 82. 58 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium)(Judgment) [2002] ICJ Rep 3, 25. 59 Certain Criminal Proceedings in France (Republic of the Congo v France) (Order, Provisional Measures) [2003] ICJ Rep 102. 60 See the removal of the case from the Court’s list in Certain Criminal Proceedings in France (Republic of the Congo v France) (Order of 16 November 2010) [2010] ICJ Rep 635.

The International Court of Justice  167 the Inspector-​General of the armed forces of Congo (Brazzaville) based on accusations of crimes against humanity and acts of torture committed under the responsibility of these persons during an internal conflict in their country. The Republic of the Congo regarded the action of the French judiciary as violating the immunity from foreign criminal proceedings owed to these high-​ranking officials and took the case to The Hague, without bothering much about the niceties of jurisdiction. Remarkably, however, France accepted the jurisdiction of the Court as a forum prorogatum under Article 38(5) of the ICJ Statute, that is it agreed to the ICJ deciding the case in the absence of any (other) basis of such jurisdiction. Thus the stage was set for what might have become a reconsideration of Arrest Warrant, and above all a new opportunity for the Court to clarify the purport of the principle of universal jurisdiction in criminal matters—​a task it had preferred not to take on ten years earlier. It was not to be. ii) Germany v. Italy This leaves us with the case of Germany v. Italy brought in late 2008,61 in which Germany asked the Court to determine that Italy was responsible for a breach of its international obligation to respect Germany’s jurisdictional immunity for sovereign acts. This case brought to the Court a grim chapter of World War II: severe breaches of international humanitarian law committed by the German Reich in Italy and against Italian nationals after the country had surrendered to the Allies in 1943. Several decades later, a number of victims, their successors in law, had instituted proceedings against the Federal Republic of Germany in the Italian courts, claiming that they had not obtained (adequate) compensation for their suffering under respective German compensation legislation. Germany defended itself by claiming jurisdictional immunity also for the acts in question. However, beginning with the Ferrini judgment of 2004, the highest Italian court with jurisdiction on the matter, the Corte di Cassazione, held in a number of cases that sovereign immunity could not protect Germany from civil responsibility for what the Court called international crimes, and that Italian courts thus did have jurisdiction over the claims for compensation originating from these illegalities. Preceding these developments in Italy, analogous cases had been brought against Germany in Greece, culminating in 2000 in the Distomo judgment of the Hellenic Supreme Court. After the Distomo claimants had been unable to succeed in having the Greek judgments enforced either in their own country or in Germany, they took their case to Italy on the basis of European Community law, where the courts, including the Cassazione, applied the Ferrini jurisprudence and declared the Greek decisions enforceable in Italy. The Greek claimants also managed to enter in the Land Registry of the Province of Como a legal charge against Villa Vigoni, a property of the German state. In December of 2008, Germany brought Italy before the ICJ on the basis of the European Convention of 1957 for the Peaceful Settlement of Disputes, claiming that Italy, by allowing the civil suits just described to go forward, as well as by taking measures against Villa Vigoni and declaring the Distomo judgment enforceable in Italy,

61 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) (Judgment) [2012] ICJ Rep 99.

168  Bruno Simma had breached international law by failing to respect the jurisdictional immunity due to Germany. One year later, in its Counter-​Memorial, Italy raised a counterclaim by which it attempted to put the blame, as it were, on Germany, arguing that the Italian victims of the grave violations of international humanitarian law committed by the German Reich during the war who had not obtained compensation from Germany as a consequence of the position taken by the German courts as well as the German legislature; they had been subjected to a fundamental denial of justice, and that this, ie, the issue of individual reparation, was the real matter in dispute to which the Court ought to turn. In July 2010, the Court declared this counterclaim inadmissible.62 This decision was unavoidable, due to the limits of the Court’s jurisdiction ratione temporis drawn by the European Convention, whose Article 27 (a) blocks the way to the ICJ for ‘disputes relating to facts or situations prior to the entry into force of the Convention as between the parties to the dispute’ (in our case 1961). Thus, the Court did not possess jurisdiction to deal with the questions of the German war crimes and crimes against humanity, the duty of reparation arising from these acts, the existence of individual rights to compensation on the part of the Italian victims, the effect of the comprehensive waiver by Italy stipulated in its 1947 Peace Treaty or of subsequent agreements concluded between the parties in 1961, as such. This is so even though the Court indicated that it might have to turn to these issues, but only in case its examination of the—​prior—​question of German jurisdictional immunity, as it stood at the time the case was brought, did not put an end to the matter.63 In January of 2011, Greece filed an Application for permission to intervene in the case as a non-​party. To the surprise of most observers, the Court authorized Greece to intervene in that capacity, strictly limited, however, to the question of the decisions of the Greek courts declared enforceable in Italy.64 The legal issues before the Court were rather clear-​cut: would the ICJ, under the impact of human rights considerations, recognize a development in customary international law allowing domestic courts to deny immunity to a foreign state’s sovereign acts if through such acts that state had committed international crimes whose victims have no other recourse, or would the Court confirm the old State-​centred rules on immunity despite these circumstances? In the eyes of the international human rights community, the ICJ thus faced the delicate task of reconciling the imperatives of the ‘new’ international law of human rights (understood in a broad sense because the case turned on questions of international humanitarian law), elevated by its quality as jus cogens, and the exhortation not to de-​stabilize time-​honoured rules protecting the sovereignty of states in their mutual interest.65

62 Jurisdictional Immunities of the State (Order of 6 July 2010) [2010] ICJ Rep 310. 63 Jurisdictional Immunities of the State (Judgment) [2012] ICJ Rep 99. 64 Jurisdictional Immunities of the State (Order of 4 July 2011) [2011] ICJ Rep 494. 65 The human rights/​humanitarian law issues were also the subject of a study prepared by Amnesty International and brought to the attention of the members of the Court. This was one of the very rare examples of NGO input in a contentious case.

The International Court of Justice  169 The Court rendered its Judgment on 3 February 2012.66 Although the outcome was no great surprise for the international law profession, it was received as a big disappointment by the human rights community. The Court found that, by allowing civil claims to be brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945, Italy had violated its obligation to respect Germany’s jurisdictional immunity. The Court arrived at the same result with regard to the measures of constraint taken against Villa Vigoni and the treatment by the Italian courts of the Greek judgments against Germany. It concluded that Italy, by enacting appropriate legislation or by other means of its choosing, has to ensure that the decisions of its courts and those of other judicial authorities infringing Germany’s immunity ‘cease to have effect’.67 The Court based its decision on the customary international law on state immunity, no conventions on the matter being applicable between the Parties. The question of whether Germany had a duty of reparation towards the Italian victims of the crimes in question and whether and to what measure the Claimant had complied with that obligation, was not before it for jurisdictional reasons ratione temporis. The Court subjected the arguments put forward by the Respondent to a rigorous test and arrived at the conclusion that neither the territorial tort principle, nor the subject-​ matter and circumstances of the claims in the Italian courts, that is, the gravity of the violations of the law of armed conflict involved, the alleged nature of the violated rules as jus cogens, and finally, the claim that recourse to the Italian courts had constituted the last resort available to the victims, had the effect of depriving Germany of its entitlement to immunity. Customary international law had not changed in this regard. State immunity on the one hand and the nature juris cogentis of the rules of international law breached by the Third Reich on the other were not in conflict procedurally but situated at two entirely different conceptual levels; the Italian and Greek court decisions denying Germany such immunity had remained isolated, overwhelming state (court and diplomatic) practice and opinio juris continued to adhere to the time-​honoured rules upholding immunity from civil suits even for illegal acts of armed forces committed in the course of armed conflicts. The thoroughness with which the Judgment examines the respective state of customary international law is exemplary, particularly if compared with the cavalier fashion in which the Court usually goes about anchoring its findings in general international law. In conclusion, the case of Germany v. Italy, despite its outcome, certainly is a ‘human rights case’. It applied the test of the existence and content of customary law on State immunity, and the alleged exceptions therefrom, in a state-​of-​the-​art manner, relying on hard facts and positive law. The case also exemplifies that in the Court human rights precepts do not enjoy an unqualified right of way. By welcoming it as an opportunity for the ICJ to demonstrate its openness towards humanitarian concerns, the human

66 Jurisdictional Immunities of the State (Judgment) [2012] ICJ Rep 99.

67 Jurisdictional Immunities of the State (Judgment) [2012] ICJ Rep 99, para 139 (4).

170  Bruno Simma rights community made a mistake it could have avoided if it had engaged in adequate legal analysis instead of wishful thinking aggravated by neglect for the (im)-​practical consequences of a decision in Italy’s favour. That the Court was aware of the humanitarian sensitivity of the case is demonstrated by two paragraphs of the Judgment in which it expresses its ‘surprise and regret’ about the negative way in which German courts and authorities had dealt with certain claims by Italian victims of acts of the Third Reich in World War II (para 99), and emphasizes that the Judgment is not supposed to stand in the way of negotiations between the two countries aiming at a satisfactory settlement of outstanding claims (para 104). Evidently, however, the Court could not change a well-​established international legal rule regarding immunities on the basis of these humanitarian concerns.

(c)  The background and context of the Court’s human rights case law The preceding review of the Court’s jurisprudence has shown a marked growth in the number of human rights-​related cases, particularly in recent years, as well as an increasing openness on the part of the Court to accept and deal with submissions and arguments in this regard. However, the relevance and relative weight of human rights-​ related discourse in the case law thus described differs greatly. If one wanted to test such relevance by determining when and how often the term ‘human rights’ appeared in the dispositif of a decision, the result for the earlier period under consideration in subsection (a) above would be unequivocally negative; it happened for the first time only in the Congo v Uganda Judgment rendered in 2005. As against the recent case law just described in more detail, would it be justified to speak of a sea change? At present, giving an unambiguous answer to this question would be highly speculative. It would probably be more apposite to state that the greater openness demonstrated by the Court over time has by mere coincidence met with an accumulation of what have been called human rights cases. In contrast, a look at the current docket of the Court (in early 2016) does not impress the observer as in any way human rights-​heavy. Besides, as we have seen, not in all of these cases human rights claims turned out to win the upper hand. An examination of the reasons for this state of affairs will have to recognize a few rather basic facts, or factors, concerning the jurisdiction of the ICJ and its reach, as it were. It is important to note that these factors pertain not only to what has been described as the early phase in the Court’s treatment of human rights; they are as relevant to the present situation as they were before, even though their influence appears now somehow reduced. A first, and actually the most basic but also the most fundamental, reason is to be seen in the principle that the Court’s jurisdiction is not compulsory: without exception it presupposes the parties’ consent. In the case of human rights treaties, the most important expression of such consent is to be found in compromissory clauses providing for ICJ jurisdiction. However, among the major human rights treaties, only a handful

The International Court of Justice  171 contain such a clause.68 Of these few treaties, only the oldest, namely the Genocide Convention of 1948, allows States parties immediate, direct access to the Court. In the case of that Convention, however, the question arises whether the ICJ would be capable of handling a case involving allegations of genocide in an adequate manner if no international criminal court prepared the ground by its fact-​finding, as happened in the Genocide case decided in 2007.69 The Genocide Convention is the only major UN human rights treaty which did not establish a treaty body for the supervision of performance by States parties;70 where such monitoring bodies do exist in addition to a compromissory clause providing for ICJ jurisdiction, the question may arise whether recourse to the treaty-​based procedures applied by the respective monitoring body must be had before a case can be brought to the Court. Thus, as mentioned above, in its decision on Russia’s Preliminary Objections in the Georgia v. Russia case, turning around the allegation of violations of the International Convention on the Elimination of All Forms of Racial Discrimination of 1965, the Court did not reach the merits because it found that the Claimant had not fulfilled the condition set out in CERD’s compromissory clause to engage in negotiations with its adversary.71 A second reason for the relative dearth of human rights cases before the ICJ is a structural one. In a way, we are looking at the ‘wrong relationship’ here: approaching human rights problems, above all the issue of violations, from an inter-​state perspective can only bring to the fore, and ideally solve, certain limited aspects of these problems. The ICJ will deal with violations of human rights as matters of state responsibility occurring in an inter-​state realm, and state responsibility is typically ‘law by states for states’.72 The individuals that are victims of human rights violations will remain invisible (as Parties before the Court, that is). If a State decides to espouse its claims by exercising diplomatic protection through suing the violator in the Hague Court, the spirit of Mavrommatis will remain present, albeit possibly somewhat suppressed if the Court followed the precedent it set in the Diallo case.73 The task of the ICJ, however, is precisely the settlement of inter-​state disputes; only states can sue each other before the Court, while individuals have to watch from the gallery in the Great Hall of Justice. This leads to the decisive point: whether one likes it or not, it is a fact that the preparedness 68 Namely the Genocide Convention 1948, the Convention on the Political Rights of Women 1952, the International Convention on the Elimination of All Forms of Racial Discrimination 1965, the Convention on the Elimination of All Forms of Discrimination Against Women 1979, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984. 69 See above. 70 On the consequences of this feature for the legitimacy and admissibility of reservations excluding the jurisdiction of the ICJ as the only institutional means of supervising performance by states parties to the Genocide Convention, see the Joint Separate Opinion of Judges Higgins, Kooijmans, Elaraby, Owada and Simma to the Judgment in the Congo v Rwanda Case, mentioned above. 71 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Judgment, Preliminary Objections) [2011] ICJ Rep 70, 130. 72 R McCorquodale, ‘Impact on State Responsibility’ in M Kamminga and M Scheinin (eds), The Impact of Human Rights Law on General International Law (Oxford University Press, 2009) 235, at 236. 73 Mavrommatis Palestine Concessions, Judgment, No. 2, 1924, P.C.I.J., Series A, No. 2, at 12: ‘By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights—​its right to ensure, in the person of its subjects, respect for the rules of international law. Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is sole claimant’.

172  Bruno Simma of states to bring ‘pure’, genuine human rights scenarios before the Court has always been extremely limited, and it is fair to assume that this will remain the case—​the few swallows mentioned in the preceding chapter have yet to make a summer. The situation might be different in the case of international humanitarian law. In essence, IHL displays inter-​State structures of performance and from this theoretical angle may offer itself more readily to methods of dispute settlement devised for disputes arising in inter-​State relations proper. Unfortunately, however, the readiness of states to voluntarily submit contentious issues of jus in bello to impartial third-​party adjudication comes close to zero; as to individual criminal responsibility of their organs adjudicated at the international level, states will under most circumstances have to be forced to accept it, for instance by Security Council fiat based on Chapter VII of the UN Charter. And when it comes to the attempt to reach the same result on the basis of freely given consent by the establishment of the International Criminal Court, the jury has now been out for a depressingly long time. It is the more surprising, therefore, that a consent-​based judicial institution like the ICJ has been in a situation to develop some case law in the area of IHL. To return to the topic preceding this side glance on international humanitarian law, what might be a ‘pure’ human rights scenario that would not simply involve human rights as an accessory to some more significant inter-​state dispute? Such ‘purity’, although a bit of an idealistic construct, would comprise two elements. First, it would have to involve an instance in which State A brought to the Court violations of human rights committed by State B against State B’s own nationals, or at least persons other than nationals of State A. In other words, State A’s claims would have to be ‘disinterested’ (or better: pursued in the collective interest of the international community). In any case, they could not be governed by the reflexes of diplomatic protection of one’s own nationals. And secondly, the case would not be a collateral attack on another state within the context of a broader political dispute, that is, constitute a kind of juridical Nebenkriegsschauplatz, an ancillary theatre of conflict. However, even if these two ideal elements were present (and the first and only case getting close to fulfilling both conditions would be Belgium v. Senegal), the Court would still remain structurally different from, and very far away from deserving the label of a ‘world court of human rights’.74 For example, if most human rights violations are committed by the victims’ ‘home’ states, then in order to turn the ICJ into a genuine human rights court, among many other things, access to the Court as Parties would have to be opened to the individual victims of human rights violations—​a utopian possibility. The establishment of a Human Rights Chamber of the present Court would not be able to overcome any of the hurdles described.75 And, of course, the ICJ would then compete with regional human 74 That is why despite the increasing human-​rights-​friendliness of the ICJ, serious droits de l’hommistes have never given up the idea of a real, genuine, World Court of Human Rights; see, most recently, the Research Reports by M Scheinin (‘Towards a World Court of Human Rights’) and M Nowak/​J Kozma (‘A World Court of Human Rights’) produced within the framework of the Swiss Initiative to Commemorate the 60th Anniversary of the Universal Declaration of Human Rights (on file with the author). 75 For a pleading in this regard, see G Zyberi, ‘Taking Rights Seriously: Time for Establishing a Human Rights and Humanitarian Issues Chamber at the International Court of Justice?’ (2009) 2 University of Prishtina Journal of Human Rights and Policy 103–​26.

The International Court of Justice  173 rights courts which are in many ways already fulfilling a more specialized role; while they face plenty of challenges of their own, they do not suffer from the inherent limitations just described to which the Hague Court is subject. Returning to the Court’s role as an instrument designed for use by and between states, in contentious cases—​and these instances constitute the overwhelming majority of the ICJ’s workload—​the Court’s findings will depend on and essentially be limited by the submissions ultimately formulated by the parties. The situation resembles that of domestic civil litigation, characterized by the judicial deference to party autonomy coined in the prohibition of going ultra petita partium. In this regard, the Court is thus ‘hostage’ to the parties; it is the parties which remain the masters of the proceedings, and for a variety of legal and strategic reasons they may be more or less inclined to let human rights become part of arguments. Further, while it is true that, at the level of doctrine and theory, contemporary international law undeniably posits a community interest in the respect for human rights (admirably accommodated, for instance in the International Law Commission’s 2001 Articles on State Responsibility),76 States have hitherto not shown great willingness, to put it mildly, to enforce such interest by litigating human rights disputes as such before the ICJ, even though, both doctrinally and technically, the possibility of doing so exists.77 Such hesitation by states to pursue community interests and enforce compliance with obligations erga omnes, particularly those flowing from human rights norms, by judicial means is not specific to the ICJ, however. At the universal (UN) level, not a single inter-​state complaint has ever been brought before a treaty body on the basis of the International Covenant on Civil and Political Rights or any of the other human rights treaties, even though most of these treaties provide for this possibility. Inter-​state litigation has also been extremely rare before regional human rights courts, and in the cases where it happened, it was there, too, almost always linked to an international political dispute, in other words, formed one of the Nebenkriegsschauplätze referred to earlier.

4.3  Prospects for the future In the light of the recent patterns of state and judicial practice described above, is there something that can safely be predicted about the future ‘chances’ of human rights in the ICJ? One can be certain of one thing: the human rights genie has escaped from the bottle. Since human rights considerations permeate more and more areas of international law, including the traditional, inter-​state, kind, issues of, and related to, human

76 See Simma, above n 50. 77 On the field open to individual judicial pursuance of community interests see C Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press, 2010) 158, 324; Article 3 of the Resolution of the Institut de droit international on ‘Obligations erga omnes in International Law’ adopted at the 2005 Krakow Session, in (2006) 71 II Annuaire de l’Institut de droit international 289; and the author’s Separate Opinion in the Armed Activities on the Territory of the Congo (Judgment, Merits) [2005] ICJ Rep 168, 201.

174  Bruno Simma rights will necessarily present themselves also to the Court with increasing frequency. This has become apparent through the marked increase of cases within the last few years in which human rights have featured prominently. In contentious proceedings, human rights-​related arguments will also continue to be raised besides—​or against—​more traditional, inter-​state, ways of pleading. If there ever prevailed a certain hesitation on the part of the Court to tackle the human rights aspect of a case where this could be avoided, this tendency will grow weaker, if it has not disappeared already. Moreover, it is to be expected that from time to time straightforward human rights cases, that is, claims of violations of such rights, will reach the Court as they have done already, particularly in the Diallo case. One can also assume that the Court would be especially prepared to fully deal with human rights arguments in supportive ways when such arguments are in line with, or corroborate, or strengthen more traditional patterns of international law reasoning; Congo v. Uganda and the Wall Opinion are precedents in point. Further, applications for Provisional Measures will also increasingly be supported by considerations of human rights. As a consequence, the question of how the Court will deal with the jurisprudence of specialized human rights courts and treaty bodies will pose itself with greater frequency—​in this regard, too, the Diallo Judgment is a good example to follow. In advisory proceedings, the role played by human rights will of course depend on the nature of the questions put to the Court. If these questions encompass human rights issues, one might expect that the Court will take them up in an exhaustive manner because in advisory proceedings, traditional inter-​ state ‘reflexes’, jurisdictional straitjackets and procedural hurdles are much less pronounced. Moreover, the Court is not confined to the submissions of the states participating in the proceedings as in contentious cases. It is not surprising, therefore, that in the past some of the Court’s most marked contributions to international human rights have been made through advisory opinions. Such might be a modest prognosis of things to come. It is essentially quantitative; we are on safe ground in predicting that in the future the Court will have more occasions to develop its human rights jurisprudence. The Court has been increasingly supportive of human rights claims and it has demonstrated that it can handle human rights in a way considered respectable by the droits de l’hommistes. In this regard, it has caught up with the existing human rights courts. But, in more normative—​qualitative terms, is there something that the ICJ could achieve in the field that the specialized courts could not likewise do, or that it might be able to do better?

4.4  A proper role for the Court In the field of human rights, answering the question what role the ICJ would be particularly well suited for warrants great caution; human rights are, and will continue to be, an environment in which the Court ought to tread with utmost care. This admonition is appropriate for at least two reasons. The first is to be seen in the great advances

The International Court of Justice  175 of international human rights law brought about by the regional human rights courts, and to a certain degree also by the non-​(or non-​fully) judicial institutions of the UN human rights—​particularly treaty—​system. These bodies have developed doctrines and rules custom-​made for human rights, for instance, with regard to the interpretation of human rights treaties and other questions of treaty law,78 which might go too far in the eyes of more conservative circles of the legal mainstream. One might think that this acquis should not be levelled by the participation in the discourse of a generalist court like the ICJ. In that respect, engagement with the ICJ is a bit of a double-​edged sword: it brings recognition and respectability to human rights within the mainstream of public international law; but it may also do so at the cost of negatively curtailing the substance of international human rights law. However, the way in which the ICJ engaged in an exercise of dynamic, or evolutionary, treaty interpretation in its 2009 Judgment on Navigational and Related Rights on the San Juan River between Costa Rica and Nicaragua79 bodes well in this regard and might indicate the willingness of the Court to test the application of progressive traits originally developed in specialized human rights jurisprudence to other branches of international law. The second reason why the ICJ ought to be careful with regard to its role in the human rights field lies in the socio-​political basis of the Court in the international community of states which it is to serve. In a certain sense, the ICJ is the permanent international court which still resembles most closely a system of dispute settlement by voluntary arbitration from the viewpoint of the freedom of states to have recourse to it: its contentious jurisdiction is still strictly consensual, and compared with the working of more recently created judicial bodies especially at the regional level, the functioning of the Hague Court shows a distinctly more pronounced respect for the sovereignty of its users throughout. From there, it is only a small step to conclude that at least a part of its clientele might be somewhat less than enthusiastic if the ICJ assumed more pronounced features of a human rights court. Would it really be that far-​fetched to assume that in such a case the Court could experience a loss of popularity with some of its best ‘customers’? As a matter of fact, most states—​that is, not only the usual suspects in the eyes of Western observers—​all too-​often regard critical assessments of their human rights records coming from abroad at least as a nuisance, if not a threat. Not surprisingly, states targeted for naming and shaming by the human rights community are thus rather reticent towards the idea of truly effective international third-​party adjudication in this field. If the ICJ, to whose compulsory jurisdiction states might have consented with the expectation that what they could possibly become involved in would be inter-​state litigation of the traditional type, began to broadly accept, to give just one example, applications or interventions by states ‘other than injured States’ in the sense of the 78 See the comprehensive study by F Vanneste, General International law Before Human Rights Courts (Intersentia, 2010). 79 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Judgment) [2009] ICJ REP 242.

176  Bruno Simma ILC’s 2001 Articles on international responsibility,80 this might come as a rather unpleasant surprise to many of its clients, not all of which are ranked high on the list of human rights-​respecting countries. After all, the development of international human rights will not infrequently upset sovereignty-​based rules of international law with which most states will have been, and still are, quite comfortable. What, then, is a proper role for the Court in matters of human rights? Arguably, the most valuable contribution the ICJ can make to the international protection of human rights—​a role for which it is particularly well equipped and practically has no competition—​consists in what could be called the juridical ‘mainstreaming’ of human rights, in the sense of integrating this branch of the law into both the fabric of general international law and its various other branches.81 By way of illustrating what the Court can do and is already doing to fulfil that task, it can render human rights arguments more readily acceptable to international law generalists by interpreting and applying substantive provisions of human rights treaties in a genuinely state-​of-​the-​art way, compared, for instance, to the over-​extended meaning and scope given to such provisions by certain General Comments issued by UN human rights treaty bodies, all too often marked by a dearth of proper legal analysis compensated by an overdose of wishful thinking. Further, the Court is singularly capable of devising solutions for practical, more technical, legal problems which arise at the interface between human rights and more traditional international law, thus paving the way for the acceptance of human rights arguments and, more generally, supporting and developing the framework of human rights protection. The Court has already made considerable contributions in this regard, albeit with varying degrees of success or ‘constructiveness’, depending on the viewpoint of the (either human rights-​minded or ‘statist’) observer. As shown before, there are a considerable number of issues in relation to which the Court has already engaged in this sort of ‘mainstreaming’: (1) As indicated above, in its recent case law the Court has clarified the nature of obligations flowing from human rights treaties, in the sense that these obligations create correlative rights not only for individuals but also for the other states parties to the treaties, which these parties may enforce or vindicate in judicial proceedings.82 (2) The Court has made decisive contributions to the development of the law on reservations to human rights treaties and several other questions of the law of treaties applying particularly to such instruments.83

80 See Simma, above n 50, 367–​73. 81 See Vinuales, above n 1, regarding an analogous role of the Court in the field of international environmental law. 82 See the remarks made in the text on the LaGrand, Avena, Georgia v Russia, Belgium v Senegal and Diallo cases. 83 See the remarks made in the text on the Court’s Advisory Opinions on Reservations to the Genocide Convention and the Wall as well as on its Judgments in the Congo v Rwanda and Genocide (2007) cases.

The International Court of Justice  177 (3) In concert with the jurisprudence of regional human rights courts and UN human rights treaty bodies, the ICJ has contributed to clarifying the territorial scope of human rights treaty obligations.84 (4) The Court has contributed to the development of the doctrine of positive obligations in the area of human rights by giving contours to obligations of prevention.85 (5) In several decisions, it has dealt with the question of attribution to a state of human rights violations by non-​state actors.86 (6) The Court has clarified the relationship between human rights law and international humanitarian law.87 (7) In its recent case law, it has dealt with the relationship between treaty-​based implementation procedures foreseen in human rights conventions and its own jurisdiction.88 (8) With regard to the setting of priorities between human rights considerations/​ obligations and other rules of international law, particularly rules on state and state organ immunity, the Court has demonstrated in two cases that it regards human rights law to be embedded in the general system of international law without, as such, enjoying any innate primacy.89 (9) The Court has already adapted rules on state responsibility for internationally wrongful acts to the special situation of human rights violations.90 (10) Finally, and more generally, the Court has accepted and developed what might be called international legal ‘vehicles’ which have then been put to use to give human rights obligations even greater legal authority; in the first instance the category of jus cogens, and, doctrinally connected to such higher law, that of obligations erga omnes.91 Thus, if one wanted to find a short-​term description of the current status of human rights before the International Court of Justice, one could say that it is an instance of 84 See the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (Advisory Opinion) [2004] ICJ Rep 136, paras 104–​13; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) (Order of 15 October 2008) [2008] ICJ Rep 353. For a comprehensive treatment see M Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford University Press, 2011). 85 Particularly in its Genocide Judgment of 2007, paras 428–​32. 86 See Genocide (2007) and Congo v Uganda (2005). 87 See Nuclear Weapons (1996), paras 24–​5; Wall, paras 104–​6. 88 See Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) (Order of 15 October 2008) [2008] ICJ Rep 353 and Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Judgment, Preliminary Objections) [2011] ICJ Rep 70. 89 In the Arrest Warrant (2002) and Germany v Italy (2012) cases. 90 Above all, concerning responsibility for the breach of negative obligations and such responsibility in case of violation of positive obligations, particularly obligations of prevention, in the Genocide Judgment of 2007; concerning reparation for the non-​prevention of genocide in the same case, and most recently concerning reparation for human rights violations for the benefit of the individual victims in Diallo (2010). 91 As regards the Court’s specific contribution to the development of these two categories, while the promotion of obligations erga omnes can be clearly attributed to its jurisprudence, the Court has for an embarrassingly long time been hesitant to pay more than lip-​service to jus cogens: cf the Separate Opinion of Judge ad hoc John Dugard in the Congo v Rwanda Case (note 30), 86.

178  Bruno Simma international legal discourse in which old international law (represented for our purpose by the Court) encounters the new. What we can observe already is that the Court has become a major player in a process in which human rights and general international law mutually impact upon one another: human rights ‘modernise’ international law, while international law ‘mainstreams’, or ‘domesticates’ human rights.

PART II

SU BSIDIA RY H UM A N R IGHT S  ORG A NS

5 The Human Rights Council Rosa Freedman*

5.1 Introduction The first thirteen years of the Human Rights Council have seen significant changes despite it being a relatively young body. As the principal UN human rights body, the Council is arguably the lynchpin of the UN human rights machinery, bringing together states, independent experts, UN staff and civil society actors, as well as reporting to the full UN membership via the General Assembly. At the same time, to the external observer—​whether informed or otherwise—​the Human Rights Council is the first place to which s/​he turns when exploring UN human rights activities. The Human Rights Council is also quite a unique body, combining the most intensely political elements, a high degree of reliance on expertise, and in situ human rights investigations in order to fulfil its duties to protect, to promote and to develop international human rights law. The Council was created during a reformation period at the UN, with then-​Secretary General Kofi Annan focusing efforts on implementing effective changes to the human rights machinery. Although many different proposals were tabled for a new body to replace the Commission on Human Rights, the Council bears striking resemblance to its predecessor in very many ways. Crucially, it remains an intergovernmental body of approximately one quarter of the full UN membership, meaning that by its very nature the Council is a political body. Member states are elected by their peers at the General Assembly and send governmental delegates as their representatives. While the Council draws on expertise from within and external to the UN, ultimately it is the member states that direct and produce the body’s work. Human rights, as a lex specialis within the international law system, have a complex relationship with governments: on the one hand those governments are needed to implement and uphold human rights, but on the other hand this makes human rights a political, and frequently politicized, issue area. The Council’s composition, powers, and activities reflect those tensions: the body needs to be political and deliberative for it to include and impact upon all governments, and yet, with those same governments dictating its work, politicization is bound to occur.

* Parts of this chapter have previously appeared in R Freedman, The UN Human Rights Council: A Critique and Early Assessment (London: Routledge, 2013). The author is grateful to Ruth Houghton and Amelia Cooper for comments on early drafts of this chapter.

182  Rosa Freedman The Council’s mandate is broad and reflects wider institutional problems at the UN whereby there frequently fails to be a separation of powers within different issue areas. The Council is a norm-​creator, norm-​promoter, and norm-​enforcer where it comes to human rights, with the body required to achieve those tasks without affording it binding powers to do so. Many criticisms of the Council fail to take into account the ways in which it is hampered by its mandate, powers, and mechanisms. This chapter will explore the Council’s creation, its mandate and functions, and will detail the body’s strengths and weaknesses. It will look at why the Council was created and the different proposals. as well as the context in which the body was born. It will explore the body’s legal mandate, set out in its constituent document, GA Resolution 60/​251, as well as its composition, powers, roles and functions, and how that has been developed through its Institutional Building Package. Attention will be devoted to assessing the Council’s work during its first decade, not to provide a detailed evaluation of every Council activity in the decade of its existence but rather to explain how the body operates and to give an appraisal of its performance to date.

5.2  From Commission to Council The Human Rihts Council replaced the Commission on Human Rights, which had been the UN’s foremost human rights body since the creation of the United Nations. The transformation of the Commission into the Council has been an unprecedented move in the institutional history of the UN, and one that is supposed to have enhanced the status of the resulting body and thus of human rights within the overall economy of the UN. At the same time, the creation of the Council is the result of a degree of frustration with the functioning of the Commission in its later years and so that the former’s success will be judged in part by its ability to transcend the latter’s shortcomings. In order to explain how the Council operates and to assess its work and potential, attention must therefore first turn to the Commission and to the reform proposals tabled immediately prior to the Council’s creation.

(a)  The Commission on Human Rights Human rights promotion is one of the UN’s key objectives and typically viewed as its ‘third pillar’.1 However, the gap between theory and practice has always been and remains wide. Legally, and in terms of the UN Charter, human rights are central to the UN, but in practice this area has been treated like the poor relation of the two other pillars—​peace and security, and development. The second aim stated in the UN Charter’s Preamble2 is ‘to reaffirm faith in fundamental human rights’.3 However, the 1 See United Nations Charter (1945), preambular para 1 (2); Articles 1(2), 1(3), 13(1), 55, 56, 62, 68, 76. 2 United Nations Charter (1945). 3 Ibid, preambular para 2.

The Human Rights Council  183 Charter did not establish a principal organ to deal with human rights issues. Instead, Article 68 specifically mandated ECOSOC, a principal organ, to set up a Commission on Human Rights.4 The Commission was a subsidiary Charter-​based body with jurisdiction over all UN members and could deal with any aspects of human rights.5 Although human rights are part of the formal mandates of ECOSOC and the General Assembly, as well as being relevant to the other principal organs’ work, the failure to create a principal organ that focused on human rights indicates that it was a secondary issue at the outset. The Commission’s mandate was safeguarding and promoting international human rights. It operated from 1946 until 2005, and its work can be divided into two main areas: standard-​setting, and the protection and promotion of human rights. Standard-​ setting was the Commission’s primary focus during the body’s first twenty years. Its greatest achievements in that area were drafting the Universal Declaration of Human Rights6 in 19487 and the two codifying covenants, adopted in 1966—​the International Covenant on Economic, Social and Cultural Rights,8 and the International Covenant on Civil and Political Rights.9 The Commission monitored the implementation of those standards that it had set, with such activities often undertaken by mandate holders and the Sub-​Commission, as well as separately by treaty bodies. As soon as the Commission had been created, it was inundated by human rights complaints from around the world. It seemed natural for many of these complainants to assume that, if the UN had a principal human right body then surely that body would have something to say about human rights violations. Yet nothing of the sort occurred owing to the Commission filing such complaints away rather than following up. After decades of pressure about this issue, in 1967 ECOSOC Resolution 1235 authorized the Commission to deal with any ‘consistent pattern of gross and reliably attested violations of human rights violations’,10 extending its work to human rights monitoring, implementing, and promoting, amongst others.11 This led to a marked change of direction for the body, including the creation of the Special Procedures system12 as well as a change in the body’s work and actions. Theoretically, this expansion should have enabled the Commission to respond to human rights violations and to implement the standards that it had originally been 4 ‘The Economic and Social Council shall set up commissions in economic and social fields for the protection and promotion of human rights, and such other commissions as may be required for the performance of its functions.’ 5 See W Kälin and J Künzli, The Law of International Human Rights Protection (Oxford University Press, 2009) 239. 6 GA Res 217A (III), ‘Universal Declaration of Human Rights’ (1948), para 71. 7 See J Humphrey, Human Rights and the United Nations: A Great Adventure (Transnational Publishers Inc, 1984) 25–​36, providing a first-​hand account of the drafting of the Universal Declaration on Human Rights. 8 GA Res 2200A (XXI), ‘International Covenant on Economic, Social and Cultural Rights’, 16 December 1966, entered into force 3 January.1976. 9 GA Res 2200A (XXI), ‘International Covenant on Civil and Political Rights’, 16 December 1966, entered into force 23 March 1976. 10 ECOSOC Res 1503 (XLVIII), 27 May 1970. 11 L Rahmani-​Ocora, ‘Giving the Emperor Real Clothes:  The UN Human Rights Council’ (2006) 12 Global Governance 1, 15. 12 Discussed in detail in Section 7 below.

184  Rosa Freedman created to set. However, the Commission ran into considerable difficulties. The expansion of international human rights to cover ever more issues, coupled with the body’s increasing loss of credibility in the eyes of states and observers, resulted in the Commission being widely deemed to be unable to fulfil its mandate.13 Eventually, the Commission’s perceived failures, especially in its final years, led to the body’s demise. Criticisms came from different, and sometimes diametrically opposing, perspectives. Alston observes that: [w]‌hile many of the critics called for a conciliatory approach that would avoid confrontation with governments, others impugned its credibility precisely because it had failed to condemn governments that they considered to be responsible for egregious cases of human rights violations.14

A range of criticisms were levelled at the Commission by states, NGOs, and observers, which included:15 unbalanced Commission membership, inaction on pressing human rights issues, disproportionate focus on some countries, regionalism and insufficient time for dealing with pressing issues.16 Those themes provide a framework for analysing reform proposals, negotiations and assessing the Council’s founding Resolution. As attacks on the Commission came from different angles, the body’s ability to deal effectively with the criticisms waned. Commission membership was long a matter of some controversy. As a functional ancillary of ECOSOC, it was hoped that power struggles, found in organs such as the Security Council and General Assembly, could be eliminated from the Commission and that the body would be allowed to focus solely on protecting and promoting human rights. Initial recommendations called for member states to send experts as delegates to the Commission rather than government representatives. That would have allowed the Commission to provide human rights expertise, as well as technical and practical assistance, without national agendas dominating proceedings. That proposal was not followed, and the Commission indeed became a political body. In addition, increases in and diversification of Commission membership, whilst necessary, tended to increase the intensely political nature of the debates at the Commission. Initially the Commission had eighteen members. Membership increased to twenty-​one states in 1962, thirty-​two states in 1967, forty-​three states in 1980, and fifty-​three states in 1992. Membership increases reflected the growing number of states joining the UN due to decolonization, with some observers commenting that developing nations sought expansion of the Commission in order to gain control of the

13 N Schrijver, ‘The UN Human Rights Council: A New ‘Society of the Committed’ or Just Old Wine in New Bottles’ (2007) 20 Leiden Journal of International Law 4, 812. 14 P Alston, ‘Reconceiving the UN Human Rights Regime: Challenges Confronting the New UN Human Rights Council’ (2006) 7 Melbourne Journal of International Law 188. 15 E Redondo, ‘The Universal Periodic Review of the UN Human Rights Council: An Assessment of the First Session’ (2008) 7 Chinese Journal of International Law 3, 721–​34. 16 See R Freedman, The UN Human Rights Council: A Critique and Early Assessment (Routledge, 2013) Chapter 1.

The Human Rights Council  185 body.17 Indeed, although in 1946 the Commission reflected Western dominance, it became more representative with the years, in many ways legitimizing the body through greater geographical representation encompassing different governance. At the same time, change in composition resulted in more national political agendas being raised at proceedings and increased power struggles between states and regions. Criticisms of the Commission’s membership initially focused particularly on the disproportionate number of Global North countries, the presence of known human rights abusers, and the fact that delegations were composed of government representatives rather than human rights experts. States, groups and blocs used various tactics and increasingly ‘ingenious’ methods to ensure that the Commission failed to take action on particular human rights situations that by any standard would have deserved action. Country-​specific discussions were introduced to allow the Commission to deal with specific human rights situations, yet were used increasingly selectively and for political purposes.18 Donnelly echoes other writers in observing that ‘certain countries [were] singled out, for partisan purposes, to the exclusion of other, no less reprehensible regimes’.19 Politicization in the form of regionalism was a growing concern during the body’s later years as it increasingly overshadowed the Commission’s proceedings and work.20 According to one commentator, the body ‘came to resemble a club where friendships easily overlooked wrongdoing’.21 The impact of regionalism, according to Roth, was to create a farcical body where human rights abusers used alliances to block scrutiny.22 Another flaw was that insufficient time was allocated to deal with such an extensive array of human rights issues. The Commission held one annual six-​week session leaving it ill-​equipped to deal with increasing numbers of agenda items each year due to emergence of ever-​more human rights issues.23 Moreover, beyond passing resolutions it could not take action in response to human rights crises as it was not a standing-​body with its own permanent resources.24 It is important to note that not all states nor observers expressed, or even agreed with, criticisms of the Commission. Amnesty International’s 2005 report provided a nuanced view on the Commission, which highlighted the body’s good work and provided constructive reform proposals.25 Recent scholarship demonstrates that some observers still view criticism of the Commission as unnecessary and undeserved, arguing that the 17 T Farer and F Gaer, ‘The UN and Human Rights: At the end of the beginning’ in A Roberts and B Kingsbury (eds), United Nations, Divided World (2nd edn, Oxford University Press, 1993) 261. 18 For a rebuttal of recent attempts to defend those resolutions, see R Freedman, The UN Human Rights Council: A Critique and Early Assessment (Routledge, 2013) 28–​33. 19 J Donnelly, ‘Human Rights at the United Nations 1955–​85: The Question of Bias’ (1988) 32 International Studies Quarterly 3, 288. 20 See H Tolley, The U.N. Commission on Human Rights (Westview Press, 1987) 199–​203. 21 Rahmani-​Ocora, above n 11, 16. 22 K Roth, ‘Despots Pretending to Spot and Shame Despots’, New York Times, 17 April 2001 (Online). Available at: https://​www.nytimes.com/​2001/​04/​17/​opinion/​IHT-​despots-​pretending-​to-​spot-​and-​shame-​despots.html. 23 P Scannella and P Splinter, ‘The United Nations Human Rights Council: A Promise to be Fulfilled’ (2007) 7 Human Rights Law Review 1, 46. 24 Rahmani-​Ocora, above n 11, 16. 25 Amnesty International, ‘Meeting the Challenge:  Transforming the Commission on Human Rights into a Human Rights Council’, 12 April 2005, AI Index IOR 40/​008/​2005.

186  Rosa Freedman body was not flawed and did fulfil its mandate.26 Some observers maintain that the Commission’s disbanding resulted from a more general reformation atmosphere at the UN rather than due to an inherent need to end that body. Ghanea asserts that in all of the general UN reform proposals, the Commission’s potential to fulfil its mandate appeared to have been forgotten.27 Nonetheless, the level of dissatisfaction with the Commission ensured that pressure to reform would eventually prove irresistible.

(b)  Reform proposals During the Commission’s last decade significant changes were suggested that went beyond procedural and technical matters. Initially the objective was not to replace the body,28 and debate focused on depoliticizing the Commission’s work. What soon became clear, however, was that support for the Commission was limited to a very small number of states and NGOs.29 As a result, the Commission’s ‘death knell soon started to be heard’.30 Attention started to focus on Commission abolition and the creation of a new body. The idea for the Commission’s replacement was originally a Swiss government initiative in 2003, and the Bern Institute of Public Law31 produced a draft proposal which contained the idea of creating a Human Rights Council.32 That proposal was discussed, but was not unanimously accepted by states or non-​state actors. However, it continued to be considered. In 2004 a report was published by the High Level Panel appointed by the Secretary-​General to examine potential reforms to the UN,33 in which it discussed abolishing and replacing the Commission34 owing to the many problems that beset that body alongside the general reformation agenda that encompassed the human rights machinery at that time. Then Secretary-​General Kofi Annan dealt with the same topic in his seminal 2005 report,35 in which the strongest reform proposals were directed towards replacing the Commission.36

26 See, for example, J Lebovic and E Voeten, ‘The Politics of Shame: The Condemnation of Country Human Rights Practices in UNCHR’ (2006) 50 International Studies Quarterly 4, 861–​88. 27 N Ghanea, ‘From UN Commission on Human Rights to UN Human Rights Council: One Step Forwards or Two Steps Sideways?’ (2006) 55 International and Comparative Law Quarterly 3, 704–​5. 28 J Gutter, Thematic Procedures of the United Nations Commission on Human Rights and International Law: In Search of a Sense of Community (Antwerp: Intersentia, 2006) 93–​4. 29 H Steiner, P Alston, and R Goodman, International Human Rights in Context (3rd edn, Oxford:  Oxford University Press, 2008), 814. 30 Ibid. 31 W Brülhart, ‘From a Swiss Initiative to a United Nations Proposal (from 2003 until 2005)’ in L Müller (ed), The First 365 Days of the United Nations Human Rights Council (Baden, 2007), 16. 32 Ibid. 33 Report of the High-​level Panel on Threats, Challenges and Change, ‘A More Secure World:  Our Shared Responsibility’, Note by the Secretary-​General, 2 December 2004, UN Doc A/​59/​565, para 3. 34 Ghanea, above n 27, 698. 35 General Assembly, ‘In larger freedom; towards development, security and human rights for all’ Report of the Secretary-​General, 21 March 2005, UN Doc A/​59/​2005. 36 Annan acknowledged this in a speech to the Commission the following month, saying that these were the report’s ‘most dramatic’ proposals: Speech of Secretary-​General Kofi Annan to the Commission on Human Rights, ‘Reforming UN Human Rights Machinery’, 7 April 2005, UN Press Release SG/​SM/​9808 HR/​CN/​1108.

The Human Rights Council  187 It was recommended that the body be either a primary organ, equal to the Security Council and ECOSOC, or a subsidiary organ of the General Assembly. Informal consultations37 demonstrated that many states supported the Commission’s replacement, and the elevation of the Council to a standing body.38 However, divergence of opinion was common as several states were sceptical about whether those steps would overcome the Commission’s shortcomings.39 In 2005, the General Assembly held its 60th Session during which the 2005 World Summit of Heads of State and Government sought to address issues within the UN human rights machinery by creating a new Human Rights Council to address ‘violations of human rights, including gross and systemic violations, and make recommendations thereon’.40 Schoenbaum insists that ‘regretfully this tepid idea does not address the real problems: the hypocrisies of the U.N. Human Rights Commission’.41 Indeed, little was mentioned as to the Commission’s failings, nor how they would be overcome by a new body. The World Summit requested that the GA conduct negotiations to establish the HRC’s practicalities and to create the body.42 Three key areas of discussion reflect the most severe criticisms of the Commission: membership and election, mechanisms and proceedings, and universal periodic review. Membership issues, as already discussed, were a serious concern that undermined the Commission’s credibility. It comes as no surprise, then, that a major area for reform focused on membership and elections to the new body; indeed, Alston observes that debates on membership and criteria dominated the reform discussions.43 The emphasis placed on these issues reflected the gravity of concerns of almost all states and regional groups. The recommendation of universal membership44 aimed to ‘get rid of the politicization’ and ‘underscore universal commitment to the Charter’,45 to remove attention from national political agendas and refocus it on human rights issues. Annan took the opposite approach, proposing that the Council be composed of fifteen states as compared with the Commission’s fifty-​three. A smaller body reflected prioritizing fulfilment of mandate over power struggles and advancing national objectives. Kälin and Jimenez adopted a realist approach: disagreements would always occur between states at such a body.46 Without legally binding powers—​which was not formally recommended by anyone involved in the reform proposals—​the body would remain a political arena at 37 GA; ECOSOC, ‘Summary of the open-​ended informal consultations held by the Commission on Human Rights pursuant to Economic and Social Council Decision 2005/​217, prepared by the Chairperson of the sixty-​first session of the Commission’, 21 June 2005, UN Doc A/​59/​847; E/​2005/​73. 38 Ibid, para 12. 39 Ibid, para 13. 40 GA Draft Res, ‘2005 World Summit Outcome’, 20 September 2005, UN Doc A/​60/​L.1, para 159. 41 T Schoenbaum, International Relations—​The Path Not Taken: Using International Law to Promote World Peace and Security (Cambridge University Press, 2006) 277. 42 W Kälin and C Jimenez, ‘Reform of the UN Commission on Human Rights’, Study Commissioned by the Swiss Ministry of Foreign Affairs (Political Division IV) (University of Bern, 30 August 2003), paras 158–​60. 43 Alston, above n 14, 189. 44 Report of the High-​level Panel on Threats, Challenges and Change, above n 33, para 285. 45 Ghanea, above n 27, 699–​700. 46 Kälin and Jimenez, above n 42, 6–​7.

188  Rosa Freedman times used by states to advance national aims. They recommended that membership numbers should not be altered as it would not produce any changes to the politicization of the new body. Another discussion focused on membership criteria. The High Level Panel had said that such criteria ‘would risk politicizing the Commission yet further’.47 The majority of states were not in favour of election criteria48 in part due to the inevitable subjectivity of such an approach. The US 2004 proposal that only ‘real democracies’ should be granted membership49 reflected the Western idea that democratic values underpin much of human rights. That proposal would not have gained sufficient support, as most states would not meet this criterion. Others built on the US proposal, or proposed ‘soft criteria’ that would include ratification of core human right treaties, compliance with reporting obligations, and lack of recent condemnation by the Commission, amongst others, to increase the body’s credibility.50 Alston notes the difficulty with only including states with good human rights records or democratic countries.51 Excluding known abusers was both impractical and undesirable, politically and diplomatically, and (paradoxically) risked undermining the legitimacy of the body: a non-​representative, exclusive body would serve to strengthen the position that human rights are a preserve of Western and developed UN member states. Moreover, excluding countries from standing for election is fundamentally at odds with the key UN Charter principle of sovereign equality of member states despite most UN bodies providing for suspension of membership. Furthermore, subjective interpretation of membership criteria would potentially allow powerful states to ensure that only their allies are granted membership. One way of ensuring that powerful states could not control membership was distributing seats in a geographically proportionate manner to stop any one region from dominating proceedings, thus maintaining the body’s credibility.52 Reforms to the electoral process were proposed as another method for improving the credibility and work of the UN human rights body. The Secretary-​General insisted that the Human Rights Council ‘must be a society of the committed’53 and that ‘those elected [to the HRC] should have a solid record of commitment to the highest human rights standards’. Such language was used to emphasize the need for elections to focus on states’ commitment to human rights—​essentially, whether they met the aforementioned soft criteria. He proposed that election by a two-​thirds majority of the General Assembly would make the body more accountable and representative.54 Requiring a 47 Ghanea, above n 27, 699–​700. 48 Rahmani-​Ocora, above n 11, 17. 49 Ambassador Richard Williams, US Representative to the United Nations for Special Political Affairs, US Government Delegation to the 60th Commission on Human Rights, discussion on ‘Item 4: Report of the United Nations High Commissioner for Human Rights and Follow-​Up to the World Conference on Human Rights’ (2004). 50 Rahmani-​Ocora, above n 11, 17. 51 P Alston, ‘Richard Lillich Memorial Lecture:  Promoting the Accountability of Members of the New UN Human Rights Council’ (2005–​2006) 15 Journal of Transnational Law and Policy  58–​9. 52 Rahmani-​Ocora, above n 11, 17. 53 Speech of Secretary-​General Kofi Annan to the Commission on Human Rights, above n 36. 54 Ibid.

The Human Rights Council  189 large majority would stop the practice of electing members based on political alliances, and instead focus attention on positive criteria for membership. His proposals were supported by other stakeholders such as NGOs55 and scholars.56 The second key area requiring reform was the body’s mechanisms and proceedings. Observers suggested that the Council could overcome the Commission’s flaws by being a principal organ of the UN.57 In May 2005 the Secretary-​General commented that the Council ought to be a principal UN organ in order to ‘raise human rights to the priority accorded to it in the Charter’.58 As a principal organ, the Council would have independence, resources and powers not available to the Commission. But that shift would have required changes to the UN Charter, a matter not easily undertaken. The Secretary-​General emphasized the need for the new Council to be a standing body, with a permanent meeting place and specific resources entirely devoted to it.59 That could be achieved through being either a UN principal organ or a General Assembly subsidiary body.60 Emphasis on the HRC being created as a standing body stemmed from the need for the Council to hold regular meetings dealing with an ongoing agenda and to be able to convene at short notice to deal with crisis situations.61 The emphasis on the body’s ability to do more than simply ‘fight fires’ reflected an ongoing impetus that the Council’s mandate be extended to include human rights protection. Regular meetings would allow the Council to investigate grave situations, increasing this capacity. Informal consultations also highlighted the need to increase the body’s capacities for standard-​setting, assistance, and other forms of human rights promotion.62 Proposals for a standing body meeting regularly would, however, emphasize the difference in resources between powerful and weak states. Economically less developed countries would not be able to afford permanent delegations, or at least those of the size and expertise of richer countries. The difference in member states’ resources and personnel, and therefore their ability to engage with the Council and its work, mirrored the already apparent power differentials within the body. The EU proposed between four and six annual sessions lasting a minimum of twelve weeks in total. As a group of powerful and rich nations, the EU was less concerned with state resources than many of those opposing longer and more frequent sessions. Other states proposed fewer sessions with fewer minimum weeks, although almost all agreed on the necessity of regular sessions and the ability to convene special sessions at the request of the Council. Perhaps the most innovative reform proposals focused on peer review of all states’ human rights records. Universal review was proposed to combat criticisms of selectivity 55 Amnesty International, above n 25. 56 Rahmani-​Ocora, above n 11, 17. 57 Ibid. 58 Human Rights Council, ‘Explanatory note by the Secretary-​General’, 23 May 2005, UN Doc 59/​2005/​Add.1, para 1. 59 Ghanea, above n 27, 701–​2. 60 General Assembly, above n 35. 61 Rahmani-​Ocora, above n 11, 19. 62 GA; ECOSOC, ‘Summary of the open-​ended informal consultations held by the Commission on Human Rights pursuant to Economic and Social Council Decision 2005/​217’, UN Doc A/​59/​847; E/​2005/​73, para 19.

190  Rosa Freedman and bias levelled at the Commission’s members and at its monitoring work. Underlying this mechanism were the principle of universal standards and the need to ensure compliance with such norms. State and non-​state actors repeatedly expressed the need for the cooperation and consent of the states being reviewed, emphasizing the need for an inclusive and interactive approach.63 The Secretary-​General introduced the concept of ‘universal peer review’ as part of his proposal to disband the Commission and create a replacement body. The High Commissioner for Human Rights, Louise Arbour, emphasized the importance of peer review in her speech at the Commission’s final session.64 Arbour insisted that peer review, alongside other reforms, would combat politicization, allowing the new body to deal with human rights in a non-​selective and credible manner.65

(c)  The Council’s establishment Negotiations on the new Human Rights Council took place between 2005 and 2006. Alston maintains that there was general agreement on the Commission’s failure, the need to establish a new body, and the requirement to strengthen UN human rights machinery. However, he observes that there were serious disagreements about why the Commission failed and what the Council should do to overcome these flaws. Alston argues that the final resolution only gave broad guidelines regarding the Council’s procedural and institutional arrangements because of this failure to agree on what had previously gone wrong with the human rights body.66 On 15 March 2006 the General Assembly passed Resolution 60/​ 251.67 That Resolution is the Council’s constituent instrument and sets out what the Council is mandated to do; the manner in which it is mandated to achieve those ends; the mechanisms it must use or create; and the powers afforded to the Council. The main changes from the Commission found in Resolution 60/​251 are the HRC’s founding principles, membership and election issues, procedures and mechanism, and the universal periodic review (UPR) mechanism, which seek to respond to some of the most serious criticisms levelled at the Commission. Compromise was key to the final text of Resolution 60/​251. Controversial issues included the suspension clause, membership and election, and the UPR. While the compromise agreement satisfied most states in terms of voting in favour of the Council’s creation, it was clear that many of the most polarizing issues were inadequately addressed and that the final product sought to paper over the cracks of those ideological and practical disagreements.

63 Ibid, paras 20–​1. 64 Speech of the High Commissioner for Human Rights, CHR 61st Session, 14 March 2005. 65 Rahmani-​Ocora, above n 11, 20. 66 P Alston, ‘Reconceiving the UN Human Rights Regime: Challenges Confronting the New UN Human Rights Council’ (2006) 7 Melbourne Journal of International Law 186. 67 GA Res 60/​251 (3 April 2006).

The Human Rights Council  191 Not all countries supported Resolution 60/​2151. The US voted against the Council’s creation. Crook68 commented that, despite the US strongly advocating replacing the Commission, it did not believe that Resolution 60/​251 sufficiently safeguarded against states with poor human right records becoming members of the HRC.69 Ambassador John Bolton commented that the US ‘did not have sufficient confidence . . . to be able to say that the HRC would be better than its predecessor’.70 Despite voting against the resolution, the United States did not seek to introduce proposed changes to the draft resolution, a tactic that would have derailed the entire process.71 As the US did not withdraw funds from the Council despite voting against its creation, observers have argued that the US position was in fact a ‘soft no’.72 Importantly, when thinking about the place that human rights holds in the UN system, Resolution 60/​251 creates the Council as a subsidiary organ of the General Assembly to assist the Assembly in fulfilling its mandate on human rights through providing a body solely focusing on human rights issues. The General Assembly retains organizational power and control over the Council’s structure and activities,73 and the Council directly reports back to the General Assembly.74 Those reports identify key human rights issues for the Assembly to discuss and act upon. The report is heard by all UN members who can then participate in debates, offering an opportunity for non-​members of the Council to play an active role on its work. The Council’s lack of autonomy can be compared with, for example the Human Rights Committee—​a treaty-​ based body of independent experts that monitors implementation of the ICCPR by states party to that treaty—​which retains a degree of autonomous decision-​making not found within the Council.75 Before turning to examine how the Council works in practice, it is crucial to understand the place that it holds within the UN system as a result of it being a subsidiary body as opposed to a principal organ. The primary relationship that the Council has with a UN organ is with the General Assembly. Despite being the Council’s parent body the Assembly was not supposed to interfere with the work of its subsidiary other than in exceptional circumstances, for example when a resolution concerned states who were not members of the body and who did not have representation in Geneva at the time that resolution was passed. This sort of arrangement had functioned fairly well with the Commission whose parent body, the ECOSOC, steered largely clear of its activities.

68 J Crook, ‘United States Votes Against New UN Human Rights Council’ (2006) 100 American Journal of International Law  697–​9. 69 Ambassador John R Bolton, ‘Explanation of Vote by U.S. Permanent Representative John R. Bolton on the Human Rights Council Draft Resolution’, 15 March 2006, USUN Press Release No 51(06). 70 Ibid. 71 P Maurer, ‘About the Negotiation Process in New York (from 2005 until 2006): Of Ants, Caterpillars and Butterflies’ in L Müller (ed), The First 365 Days of the United Nations Human Rights Council (Baden, 2007) 35. 72 Ibid. 73 B Simma (ed), The Charter of the United Nations:  A Commentary (Oxford:  Oxford University Press, 1995)  430–​1. 74 GA Res 60/​251, above n 67, para 5(j). 75 D McGoldrick, The UN Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (Oxford: Oxford University Press, 1994) 52–​3.

192  Rosa Freedman The Assembly holds the power to revise or overrule Council resolutions, but this was supposed to be a theoretical rather than practical power. However, on 18 December 2013 the General Assembly ‘deferred consideration’ of a Council Resolution ‘Cooperation with the United Nations, its representatives and mechanisms in the field of human rights’.76 That resolution was adopted by the Council in September 2013 and focuses on protecting human rights defenders, particularly in relation to intimidation and reprisals. However, at the General Assembly December session, Gabon, on behalf of the African Group, tabled a resolution, ‘Report of the Human Rights Council’ that was adopted with a narrow margin of ninety-​four in favour, seventy-​one against, with twenty-​three abstentions.77 As a result, Resolution 24/​24 was not adopted. At the debate that followed, Cuba stated that ‘the Assembly had created the Human Rights Council and therefore had full authority to review its work’. Zimbabwe also said that ‘the General Assembly could correct the work of the Human Rights Council’. The EU, the US, Switzerland, Norway, Costa Rica, and other democracies warned of ‘undermining the United Nations human rights institutional architecture’ and ‘setting a damaging precedent’. There was also a general understanding that the Assembly would not duplicate the Council’s work in its ‘Third Committee’, which focuses on social, humanitarian, and human rights issues. That informal arrangement has not been upheld. The Assembly also undermined the Council’s work in a more passive manner through duplication in the Third Committee. Many issues are discussed in both bodies but without reference to one another’s work, leading to repetition and often divergence in outcomes. It is clear that despite the Council reporting to the GA and feeding into its work, there are significant issues in the relationship between the two bodies. This once again raises the fundamental question as to why the Council is not a principal UN organ, and whether its position as a subsidiary body undermines the impact of its work on the wider UN system. Owing to the Council’s position as a subsidiary body, it cannot simply report to nor have a direct relationship with organs other than the Assembly. The Council does not play as strong a role as it could or even ought to in protecting rights during crisis situations owing to it having to feedback into other parts of the UN via the GA rather than having direct access to other bodies. In particular, that lack of access affects the extent to which the Council’s work can play a role in peace and security issues. Notably, the Council does not have access to brief the Security Council other than when individuals are invited to do so. Moreover, Council reports, resolutions and fact-​finding documents are not referred to other than in exceptional circumstances. As a result there is a failure to take into account human rights considerations or to heed the early warning system that human rights monitoring provides in relation to situations likely to present a threat to international peace and security. While this issue has been discussed within the UN 76 HRC Resolution 24/​24, ‘Cooperation with the United Nations, its representatives and mechanisms in the field of human rights’, 27 September 2013. 77 See, for example, United Nations Press Office, ‘General Assembly Adopts 68 Resolutions, 7 Decisions as It Takes Action on Reports of Its Third Committee’, 18 December 2013, available at: http://​www.un.org/​press/​en/​ 2013/​ga11475.doc.htm.

The Human Rights Council  193 human rights system, particularly in relation to mainstreaming human rights in the Sustainable Development Goals, there are few signs of changes or even awareness of the issue within bodies such as the Security Council.

5.3  Composition The Council’s composition and organizational structures were the two most contested issues during discussions about reforming the main UN human rights body. In the end, most of what appeared in Resolution 60/​251 reflected attempts to compromise between two very different, competing visions of what the Council would look like and how it would work in practice. Those compromises, however, resulted in changes that were not adequate to address the core problems and challenges that had beset the Commission on Human Rights.

(a) Membership During reform negotiations there had been real and difficult discussions about whether the Council would better be served, and have more legitimacy and credibility, if it was an expert or an intergovernmental body. The final decision that the Council ought to be intergovernmental reflected concerns that an expert-​led body would lack credibility and legitimacy with many countries, particularly those from the Global South which maintain that the international human rights system is dominated by Global North ideologies. As a result, countries are elected to the Council and are represented by government delegates. The second core decision was the size of the Council. Again, there were polarized views about whether it ought to be universal or a very small body. Yet the final decision was one of compromise that lost the best of both worlds because it neither opened the body up to all member states nor shrunk it sufficiently for its work to be as minimally impacted by politicization as possible.78 Council membership was determined to ‘consist of forty-​seven Member States’,79 as compared with the Commission’s fifty-​three. Reforms to the Council’s composition sought to avoid politicization and de facto permanent membership, as well as to ensure an accurate representation of the ideologies and voices and UN member states. Membership was therefore to be for fixed terms and ‘based on equitable geographical distribution’.80 At the UN there are five regional groups, established in 196381: the African Group; the Asian Group; the Latin American

78 T Weiss, What’s Wrong with the United Nations and How to Fix It (Cambridge: Polity Press, 2008) 146–​7, setting out that this was a disappointing outcome. 79 GA Res 60/​251, above n 67, para 7. 80 Ibid. 81 See, for example, R Thakur, What is Equitable Geographical Distribution in the 21st Century (New York: United Nations University, 1999).

194  Rosa Freedman and Caribbean Group (GRULAC); the Western European and Other Group (WEOG); and the Eastern European Group. At the Council the African Group hold thirteen seats; East European countries received six seats; GRULAC, eight; Asia, thirteen; and Western Europe and Others, seven. Comparing HRC membership with Commission membership, the African Group’s percentage share (28 per cent) remained the same, the Asian Group (28 per cent) gained an extra 5 per cent and Eastern Europe (13 per cent) gained 4 per cent. Latin American states (17 per cent) lost 4 per cent, as did Western Europe and Others (15 per cent).82 African and Asian states hold the majority of Council seats, giving these groups significant power. Proportionate geographic representation means that the body is no longer dominated by Global North states, but it has not addressed the underlying issue that certain groups or political blocs are able to dictate proceedings because of their numbers. When negotiations took place on the Council’s composition, WEOG realized only too late in the discussions that the African Group and Asian Group together would hold an overall majority of seats and ‘what the loss in terms of geographic distribution would mean for the group of Western states in a smaller Council’.83 The Global South controls the Council, with Global North states marginalized owing to many belonging to WEOG and only a few, such as Japan, coming from other regional groups. Membership is the most crucial component of the Council in terms of its work and its legitimacy. Having government delegates sit at the Council means that the body’s work in any given session depends on the national, regional and international objectives of each individual member state. As such, the Council’s membership fundamentally affects its work and credibility during any given session, with individual states or groups of countries able to direct or derail discussions according to their own objectives. When it comes to the impact of membership, the biggest problems are that European Union members, tied to a common position, frequently have been passive as a bloc—​ with the exceptions, perhaps, of Germany, Ireland, and the UK. Latin American and Caribbean countries are geographically too far away from Geneva for most of them to play a strong role at the Council, and African states are too weak to act as a cohesive bloc on issues such as migration that impact upon the region. But the impact of membership extends outwards to external perceptions of the Council and its work. The Council’s credibility, then, depends largely on the governments represented within the body and the degree to which they are viewed by other countries and by observers. During the Council’s initial years, states inimical to dominant liberal understandings of human rights and with their own poor domestic human rights records, took seats on and dominated the Council. China, Cuba, Egypt, India, and Russia were vocal members of the Council, and were rarely challenged. The US, in contrast, refused to engage with the new body until the change of administration with the election of 82 Schrijver, above n 13. 83 P Maurer, ‘About the Negotiation Process in New York (from 2005 until 2006): Of Ants, Caterpillars and Butterflies’ in L Müller (ed), The First 365 Days of the United Nations Human Rights Council (Switzerland: Baden, 2007) 35.

The Human Rights Council  195 President Obama. The second wave of membership brought in a broader range of states in terms of human rights ideologies and forms of governance, but more recently the five permanent members of the Security Council, as well as countries like Saudi Arabia, have regained Council membership and proceedings have returned to more polarized and aggressive discussions rather than the more cooperative and constructive sessions that occurred during the second wave of membership.

(b) Elections The new rules on elections sought to end the practice of regional groups strong-​ arming the body into accepting states as members through presenting closed slates of candidates. A closed slate provides only the same number of candidates as there are seats available to a group, thus meaning that all candidates are successful in their bid. The new rules set out that members are ‘elected directly and individually’,84 supposedly allowing a candidate to be rejected by the General Assembly. Election occurs ‘by secret ballot’, preventing fears of repercussions for abstaining or voting against a state’s election.85 By allowing states to abstain or vote against candidates in a secret ballot, and thus re-​ open nominations, it was expected that the Council would block known grave abusers from securing membership by the majority of states. In practice, however, regional groups have continued to negotiate internally and present the same number of states as there are seats, and the General Assembly has continued to vote for those countries rather than re-​open nominations. Abstentions or votes against states are used all-​too infrequently, thus undermining a crucial tool in the arsenal against known abusers sitting on the Council. In particular, the EU has failed to vote against states that are known abusers becoming members of the Council, despite the clout held by that bloc. To become a Council member, a country needs the votes of the majority of General Assembly members. Observers criticized the decision that states would only need a simple majority of the General Assembly instead of the proposed two-​thirds requirement,86 insisting that it would allow known human rights abusers to gain membership. However, the lower threshold arguably had little practical effect: Cuba, China, Russia, and Libya, all have poor human rights records, but each received more than two thirds of the vote.87 The Czech Republic and Poland, on the other hand, secured far fewer than two thirds of the vote88 despite having better human rights records than other candidates. It is clear, therefore, that political rather than human rights considerations prevailed during elections and that the higher voting threshold and soft criteria have 84 GA Res 60/​251, above n 67, para 7. 85 Ibid. 86 Y Terlingen, ‘The UN Human Rights Council: A New Era in UN Human Rights Work?’ (2007) 21 Ethics & International Affairs 2, 167–​78. 87 UN Department of Public Information, ‘General Assembly Elects 47 Members of New Human Rights Council’, 9 May 2006, UN Doc GA/​10459. 88 Ibid.

196  Rosa Freedman had little impact on known abusers being elected to the body. The elections did, however, result in some known abusers failing to gain membership. Iran withdrew its candidacy once it became clear that it would not gain even a simple majority, while Belarus was defeated during the vote.89 Those states’ failure to be elected could arguably be based on their human rights records but, bearing in mind the known abusers which did gain membership, it is more likely attributable to political factors. State members are elected ‘for a period of three years and shall not be eligible for immediate re-​election after two consecutive terms’.90 This ensures that no state has de facto permanent membership, which the five permanent Security Council members had at the Commission. A two-​term limit also encourages more states to engage with the Council as members, allowing smaller states and different forms of political systems to be represented. In practice we have seen that less powerful countries have successfully stood for membership, some of which—​like Somalia and Sierra Leone—​have played significant roles in the Council’s work.

(c)  Membership criteria Another proposed method for blocking grave human rights abusers from becoming Council members was through specifying criteria for such membership. Although all states can seek Council membership,91 there are criteria that must (‘shall’) be taken into account in elections.92 Those criteria are ‘the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments made thereto’.93 The ‘soft’ criteria for membership achieves a compromise between the views of various stakeholders, it does not adequately deal with the issues that beset the Commission’s membership. It is interesting to note Alston’s comments that formal membership criteria were abandoned because they were viewed as unworkable and ineffective in practice.94 The new provisions seek to set standards for membership, indicating the importance of members’ national human rights compliance and the hope that members will be elected according to human rights criteria rather than political motivations.95 Arguably, certain countries did not run for election owing to these criteria. Membership no longer protects human rights abusers, as the criteria results in membership providing ‘less cover than in the past’96 because states’ human rights records are scrutinized prior to election. Weiss notes that Sudan, Libya, Syria, Nepal, Egypt, Zimbabwe, Uzbekistan,

89 Freedman, above n 16, 67. 90 GA Res 60/​251, above n 67, para 7. 91 Ibid, para 6. 92 Ibid, para 8. 93 Ibid. 94 Alston, above n 51, 67. 95 L Moss ‘Will the Human Rights Council have Better Membership than the Commission on Human Rights?’ (2006) 13 Human Rights Brief 3, 10–​11. 96 Weiss, above n 78, 146–​7.

The Human Rights Council  197 North Korea, and Belarus,97 all former Commission members, did not place their hats in the ring for initial elections. However, Gaer insists that membership from the outset of states such as China, Cuba, and Saudi Arabia undermined the Council’s claim regarding improved membership.98 As states realized that little notice was taken of the soft criteria other than for pariah states such as Iran and Syria, who were diplomatically discouraged from standing for election, there has been an increase in the number of known abusers seeking and gaining membership of the body. The soft criteria have kept out the very worst abusers that are not world powers, but the Gulf states, China, Russia, Cuba, Venezuela and many other countries have continued to sit at the body. It is clear, therefore, that political and economic motivations take precedence over human rights criterion. The ‘soft’ membership criteria regarding ‘the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments’ should be read alongside further accountability provisions that members ‘shall uphold the highest standards in the promotion and protection of human rights’.99 Indeed, those provisions reiterate that Council members ‘shall uphold the highest standards in the promotion and protection of human rights’.100 It then gives a formal mechanism for assessing whether states are complying with this requirement: all Council members ‘shall . . . be reviewed under the universal periodic review mechanism during their term of membership’. That is a crucial difference from the Commission, where membership was often sought by states as protection from scrutiny of their human rights records. Alston observes that one of the Council’s major challenges regarding member accountability is the best method to encourage states to elect members based on human rights records.101 He insists that educating states about human rights will be key to ensuring that this occurs; however, it is hard to imagine that education will give way to the prioritizing of human rights over political or trade alliances. One way in which the soft membership criteria can be enforced, albeit ex post facto, is through the power to suspend Council members.102 Although this provision signals that grave violations may be dealt with through suspension, as occurs in some other international organizations,103 it is unlikely to be used as often as warranted owing to political and diplomatic reasons as well as the difficulty in gaining a two-​thirds majority of the General Assembly. Exclusion has thus far been used only to limited effect, although even that is an improvement on the Commission where no similar power existed. Alston insists that the clause ‘is an important symbolic component in the sense that it would allow for any country that is widely condemned for its human rights record to be suspended from membership’.104 97 Altogether, sixty-​four countries ran for forty-​seven seats on the HRC in its first year. 98 F Gaer, ‘A Voice not an Echo: Universal Periodic Review and the UN Treaty Body System’ (2007) 7 Human Rights Law Review 1, 135. 99 GA Res 60/​251, above n 67, para 9. 100 Ibid. 101 Alston, above n 51, 69. 102 GA Res 60/​251, above n 67, para 8. 103 For example, OAS and Council of Europe. 104 Alston, above n 14, 202.

198  Rosa Freedman In 2011 Libya became the first state to have its membership of the Council suspended. While some might argue that this suspension demonstrates both that the mechanism works and is useful, the question must be asked as to why it took five years for this, or indeed any, suspension. It took widespread condemnation, by the Security Council, NATO, the Arab League, the Organisation of Islamic Cooperation and the media, of Libya’s crimes against humanity for the GA to suspend that state from the Council. Therefore, far from testifying to the utility of that mechanism, Libya’s suspension arguably raises questions as to the General Assembly’s previous and continued inaction on violations within that country and other similar states.

(d)  Council Presidency As an intergovernmental body, even though the Council is supported by the Secretariat—​specifically the Office of the High Commissioner for Human Rights—​it is presided over by state delegates. The Council President, three Vice Presidents, and a Rapporteur (the ‘Bureau’) change annually and are appointed according to rotating regional group allocation. They serve in their individual rather than national capacities, although of course in practice they are viewed by most observers as representatives of their states. When known human rights abusers seek these positions questions are asked about the Council’s legitimacy. Saudi Arabia seeking the Presidency of the Council—​a move that was blocked, diplomatically, in 2015—​gained significant attention from the media and observers. However, that attention is partly owing to Saudi Arabia’s global position and can be compared with almost no attention being paid to Mauritania becoming a Vice President despite that country being a significant abuser that, for example, still retains state-​condoned slavery. The President and the Bureau facilitate procedural and organizational matters, and will intervene on such issues during debates. A strong President ensures that the body is not overwhelmed by politicization and group tactics, whereas a weak President oversees a year of inaction and lack of progress in achieving the Council’s mandate. The first President, Ambassador Luis Alfonso de Alba Góngora (Mexico), guided the body through a year of institution-​building, and his strength both on the podium and behind the scenes ensured that the body did not fail from the outset, as many observers believed would happen. Ambassador de Alba ensured that the Institution Building Package was passed—​a task that was beset with difficulties in terms of finding compromise and balance between different states’ competing views of the Council—​and that the modalities of work were respected and implemented. But he was not the only President to impact and direct future working practices. In 2015 Ambassador Joachim Rücker (Germany), the tenth President, ensured that new practices were incorporated when he began a system of informal briefings to the Council by the High Commissioner for Human Rights. He also changed the practices on Special Procedure appointments by giving reasons for why individuals were chosen to become mandate holders—​thus

The Human Rights Council  199 setting a precedent for future Presidents to have to explain similar decisions that they have taken. Weaker presidents have undermined the body’s work. One key tactic used by member states is hijacking discussions by raising technical and procedural issues that block information-​sharing and action being taken. Weaker presidents have not controlled this issue, for example in the first week of the 25th Session (March 2014) more of those procedural matters were raised through points of order than in all sessions combined in the previous year. Similarly, weaker presidents have been unable to stop work being undermined such as when states members of the Council voted to block the President’s list of new Special Procedures appointments in 2014, thus grinding to a halt the activities of one third of the Special Procedures system.

(e)  Council sessions The Council was mandated to meet more regularly than the Commission and for longer periods: the HRC meets ‘no fewer than three’ times per year ‘for a total duration of no less than ten weeks’.105 It was hoped that regular meetings would allow adequate time to deal with agenda items. Moreover, as the Council is a standing body, unlike its predecessor it has permanent resources including meeting rooms and administrative staff, all of which can be used for long-​term projects or at short-​notice and there are many informal and inter-​sessional meetings that occur throughout the year. Council sessions are scheduled to be held in March, June, and September each year, although there have been instances where additional sessions have also been held. Special Sessions and Universal Periodic Reviews take place outside of regular sessions, as do some but not all informal meetings and negotiations. The regular sessions follow set patterns established within the Council’s permanent agenda, and draft resolutions that are tabled during the sessions are voted upon and adopted (or rejected) at the end of the sessions. The IBP sets out the Council’s permanent agenda to be followed at each regular session, establishing ten fixed themes (Items) that structure the core of Council sessions.106 Under agenda Items 3 and 4 member states may raise any issues relating to protection or promotion of any thematic human right (Item 3) or country-​ specific human rights (Item 4). The agenda also focuses Council attention on specific human rights areas that directly correlate to various aspects of Resolution 60/​251. Item 10 reflects the body’s duty to promote human rights through technical assistance and capacity-​building. Agenda Items 2, 5, and 8 reflect the body’s duties to interact with wider UN machinery and non-​state actors. Item 6 solely focuses on the UPR. One method for raising emerging, under-​developed, or contentious human rights issues at regular sessions is through convening thematic panels. There has been a growing number of panels since 2011, with themes ranging from drones to children’s

105

GA Res 60/​251, above n 67, para 10.

106 Ibid.

200  Rosa Freedman right to play. Panels bring together experts, state representatives and UN staff to discuss and debate topical issues in international human rights. They may develop into intergovernmental working groups, special procedures mandates, or even declarations that will form the basis for treaties. Panels on rights of older persons107 and on business and human rights,108 have led to increased awareness and development of those issues within the human rights sphere, and have contributed to the development of new international law and legal instruments. Panels provide an opportunity to interrogate, discuss and share information about new and timely human rights matters. Critics of panels point to politicization, and their use for objectives unrelated to protecting and promoting human rights, as will be explored in detail regarding states’ behaviour during the panel on LGBT rights and the subsequent convening of a panel on traditional family values. The Council has also skilfully utilized its ability to bring in a range of non-​state actors to engage with human rights protection, promotion, development and mainstreaming. That role is central to the body’s mandates and is a key method for ensuring that its work is as effective as possible. Council discussions have incorporated interventions, expertise and advice from the High Commissioner for Human Rights and his staff, other UN agencies and bodies, independent experts, NGOs, civil society actors, and National Human Rights Institutions.109 In bringing together a range of voices and expertise, the Council has ensured that its discussions and work incorporate a multi-​layered approach to its mandates and that its activities are relevant and useful at the international, regional, national, and local levels. NGOs engage with the Council through speaking in formal discussions and through side-​events held in rooms near to the Council Chamber during regular sessions. The NGO speakers list enables accredited organizations to address the Council formally, although only after all countries which wish to do so have spoken. Many delegates pay significantly less attention to NGO interventions than to those by other countries, with some leaving the room and some others wandering the Chamber talking to one another or on their cell phones. There have been controversial interventions from NGOs, notably from UN Watch which was frequently interrupted by some states raising procedural issues, and from the International Service for Human Rights which in 2014 attempted to use its allotted speaking time to hold a minute’s silence for a Chinese activist who had died after being imprisoned whilst trying to leave China to attend that country’s UPR session.110 107 At the 18th Session (2011):  cf ‘Human Rights Council holds panel discussion on the realisation of the right to health of older persons’, 16 September 2011, available at: http://​www.ohchr.org/​EN/​NewsEvents/​Pages/​ DisplayNews.aspx?NewsID=11387&LangID=E. 108 At the 23rd Session (2013): cf ‘The role of the UN system in advancing the business and human rights agenda’, Draft Concept Note, available at:  http://​www.ohchr.org/​Documents/​HRBodies/​HRCouncil/​RegularSession/​ Session23/​Concept_​Note_​HRAgenda.pdf. 109 See L Nader, ‘The Role of NGOs in the UN Human Rights Council’ (2007) 4 SUR—​International Journal on Human Rights 7; K Sam, ‘NGOs at the UN Human Rights Council: welcome partners and inconvenient voices’ (2011), PhD diss University of Wien. 110 ISHR, ‘China interrupts moment of silence for Cao Shunli at the UN Human Rights Council’, 20 March 2014, available at: http://​www.ishr.ch/​news/​china-​interrupts-​moment-​silence-​cao-​shunli-​un-​human-​rights-​council.

The Human Rights Council  201 NGO side-​events occur during regular Council sessions and take place in rooms adjacent to the Council. While many of these events provide useful information and engagement on specific issues, the increase in the number of them means that no delegation—​even the largest ones—​can attend or monitor all of them. NGOs, and indeed independent observers, find it far easier to gain accreditation for the Council than for the sessions of any other bodies in Geneva or indeed in New York. This, of course, is directly related to the negotiations surrounding the Council’s creation and recognition of the need for accessibility and transparency that resulted not only in greater ease of accreditation but also in the live webcast and archiving of those videos to enable Council sessions to be accessed across the world. However, the ease of accessibility to Council sessions has recently resulted in lengthy queues and delays—​sometimes up to 6 hours—​for delegates, observers and NGO activists seeking to obtain day or week passes during Council sessions. The number of Council sessions and inter-​sessional activities address a main Commission grievance as do the innovative mechanisms and the additional events provided by non-​state actors. However, they also place a significant economic burden upon any member state that does not have a wide range of resources within Geneva. An issue that was not identified at the time of the Council’s creation is the disparity of resources between state members of the Council and the impact that has on their engagement with the body. Some countries—​particular economically weaker ones or middle income states located geographically far away from Geneva—​do not have significant representation within Geneva. Of 193 UN member states, only 176 have permanent missions in Geneva, with the remainder not permanently represented there at all.111 Many more countries have a permanent representative with few or no supporting advisers or teams,112 and that individual will be responsible for monitoring and engaging with all of the specialized agencies not just the Human Rights Council. The work that any such individual may undertake, even where s/​he is exceptional and committed such as the permanent representatives of Sierra Leone and of Somalia in recent years, is almost wholly constrained. Economically stronger countries, particularly those geographically close to Geneva, typically have large missions to Geneva with staff and even teams covering different issue areas able to advise and brief the permanent representative. It becomes clear, therefore, that the care taken to ensure that the Council’s composition affords proportionate geographic representation through membership does not mean that there is parity of representation. That minimizes the impact not only that individual states may have as members of the Council but also the strength of certain regional groups, such as the Group of Latin America and Caribbean states, in the context of informal negotiations, inter-​sessional work, and activities within the Council chamber.

111 ‘Missions in Geneva’, available at: http://​www.unog.ch/​80256EE600582E34/​%28httpPages%29/​8CEC446B7 20477DA80256EF8004CB68C?OpenDocument&expand=1&count=10000. 112 The list of staff at each mission is available within the Blue Book, available at:  http://​www.unog.ch/​ 80256EDD006B8954/​%28httpAssets%29/​C18EDE3A237C7504C125791F002A7AEB/​$file/​MISSIONSlivre.pdf.

202  Rosa Freedman There has been some attempt to address this, including initiatives to support members with small or solo delegations. Resolution 19/​26113 established the ‘Voluntary Technical Assistance Trust Fund to Support the Participation of Least Developed Countries (LDCs) and Small Island Developing States (SIDS) in the work of the Human Rights Council’. The fund provides training, technical and financial assistance for individuals from those states to access Council sessions. Initiatives such as those, however, can only go a small way in bridging the gap between states. Ultimately a sizeable minority of states are either unable to stand as members, owing to the resource implications concerned, or are unable to engage to anywhere near the same extent as their counterparts on the Council, thus leaving the body weighted towards the work and objectives of its economically stronger members.

5.4  Politicization and partiality The very nature of international organizations is political, and therefore some degree of politicization will always exist. Moreover, political objectives will always be involved where a body or organization is intergovernmental and where government delegates represent their countries. Being comprised of government delegates, the very nature of the Council’s membership is political. Political appointees have little concept of ‘functionalism’ because their responsibility and accountability is to their national governments rather than to the UN.114 Oberleitner remarks that it is unsurprising and somewhat inevitable that an intergovernmental body comprised of state representatives acts along political lines.115 The difference between politics and politicization hinges on the extent to which objectives are related to the subject matter at hand. Lyons et al define politicization of international organizations as the introduction of unrelated controversial issues by countries seeking to further their own political objectives116 that are unrelated to the discussions at hand. Those who accuse a body of being politicized frequently deploy a liberalist stance, pointing to the ideals of a body’s mandate rather than accepting the realist approach that countries will use intergovernmental fora to advance national objectives. However, pernicious politicization occurs when states introduce unrelated objectives that undermine the body’s mandate. Where extreme politicization occurs bodies may lose credibility, become ineffective, or even undermine the legitimacy of their own processes.117 Generally, the more controversial issues dealt with by a body,

113 HRC Res 19/​26, ‘Voluntary Trust Fund for Least Developed Countries and Small Island Developing States’, 23 March 2012. 114 J Gibson, International Organisations, Constitutional Law and Human Rights (New York: Praeger Publishers, 1991) 107. 115 G Oberleitner, Global Human Rights Institutions (Cambridge: Polity Press, 2007) 47. 116 G Lyons, D Baldwin, and D McNemar, ‘The “Politicisation” Issue in the UN Specialised Agencies’ (1977) 32 Proceedings of the Academy of Political Science 4, 89. 117 R Keohane and J Nye ‘World Politics and the International Economic System’ in C F Bergsten (ed), The Future of International Economic Order: An Agenda for Research (Lexington, Mass.: Lexington Books, 1973) 116–​18.

The Human Rights Council  203 the more likely it is to become politicized owing to cultural sensitivities and regional geographical differences giving rise to varying stances on such issues. States’ actions at the Council demonstrate politicization in the bodies’ work. Politicization has been apparent through advancement of political objectives, groups shielding their allies from Council scrutiny, and politically motivated attacks on certain states that have obstructed the HRC from taking action in other, needed, areas.118 The Council’s composition contributes to its politicization: developing states have strong representation and forge alliances through groups, ensuring power as a collective despite being individually weak. Moreover, with the body remaining intergovernmental, rather than expert, there has been the continued use of group tactics, such as repetitious statements, bloc voting, and vote-​bartering.119 Although politicization can undermine the work of the Council, many victims of human rights violations would be in a far worse position were it to cease to exist. Assessment of the Council necessarily requires an examination of the extent to which politicization undermines the body’s fulfilling its mandate. Criticism of the Council in this regard does not negate the body’s positive achievements, but rather seeks to understand the body’s processes and to identify areas for improvement. The use of group tactics to advance political agendas and the impact of regional and political aims on the Council’s work and proceedings are key to understanding the body. Furthermore, the Council must be examined in light of states’ use of political tactics to direct the body’s work and proceedings, to introduce unrelated issues into discussions, and to either shield states from scrutiny or to ensure disproportionate focus on states for political motives.

(a)  Groups and alliances Resolution 60/​251 focuses on geo-​political regional groups in apportioning seats to members, but those are not the only powerful political coalitions operating within the Council.120 Non-​geographically-​based alliances occur among both developed and developing states, although the latter have made more effective use of the technique owing to far greater need for collective strength on their part.121 The Non-​Aligned Movement and the G-​77, which were the traditional Global South political blocs during the Cold War,122 remain loosely allied at the Council but largely have given way to the Organisation of Islamic Cooperation, the G20+, the BRICS, and the Like-​Minded

118 R Freedman, Failing to Protect: The United Nations and the Politicisation of Human Rights (New York: Oxford University Press; London: Hurst, 2014) Chapter 6. 119 See E Cox, ‘State Interests and the Creation and Functioning of the United Nations Human Rights Council’ (2010) 6 Journal of International Law and International Relations 1, 87–​120. 120 D Nicol, ‘Interregional Co-​ordination Within the United Nations: The Role of the Commonwealth’ in B Andemicael (ed), Regionalism and the United Nations (Dobbs Ferry, NY: Oceana Publications Ltd, 1979) 102. 121 Weiss, above n 78, 50. 122 M Berger, ‘After the Third World? History, Destiny and the Fate of Third Worldism’ (2004) 25 Third World Quarterly 1, 13.

204  Rosa Freedman Group of Developing Countries in terms of where the political power is vested. Of those groups, the OIC and the LMG have been the most active in terms of politicizing the Council to achieve objectives largely or fully unrelated to human rights. The Organisation of Islamic Cooperation was established in 1969 to unite Muslim countries, and has fifty-​seven member states spanning four of the five regional groups.123 Many of its members are influential within other groups or alliances. As such, the OIC has far-​reaching political power at the Council. Traditionally the OIC has agreed collective group positions that advance regional aims, in the interests of the governing regimes, although that has lessened somewhat since the ‘Arab Spring’ of 2011. OIC members have consistently supported allied members, either through blocking scrutiny of domestic abuses,124 or shifting the blame onto non-​state actors,125 or seeking to keep the spotlight on Israel in order to shield nearby states from similar scrutiny. The Like-​Minded Group is an informal alliance of approximately twenty to twenty-​ five states that purport to represent ideologies and cultures from across the developing world. They, too, come from four of the five regional groups and the bloc has considerable strength owing to the regional alliances held by its members. Many of the states within that Group, including China, Cuba, Egypt, Iran, India, Sri Lanka, and Zimbabwe,126 are themselves vocal critics of the current international human rights law regime and commit grave and systematic human rights abuses at the domestic level. The EU as a political bloc set a precedent for the rise of regionalism at international bodies, including at the Commission.127 The Treaty of Lisbon128 requires EU member states to seek and advance common foreign policies,129 and from 1993130 they have been required to speak with one voice, which occurs by negotiating and compromising to find common ground between member states.131 The common position’s often fragile nature greatly affects EU states’ ability to negotiate with other states or groups and has contributed significantly to EU passivity at the Council.132

123 Twenty-​one Sub-​Saharan African, twelve Asian, eighteen Middle Eastern and North African states, three Eastern European and Caucasian, two South American, and one Permanent Observer Mission. See Organisation of the Islamic Conference; Permanent Missions of OIC Member States to the United Nations in New York (website). (Online). Available at: https://​www.oic-​oci.org/​home/​?lan=en. 124 For example, of Egypt during the uprisings in Tahrir Square. 125 For example, of Sudan during the genocide in Darfur. 126 ‘Non-​ Paper of the Like-​ Minded Group on the Human Rights Council’, available at:  http://​www. humanrightsvoices.org/​assets/​attachments/​documents/​Like_​Minded_​group_​non-​paper_​on_​HR_​Council.pdf. 127 See P Lombaerde and M Schulz (eds), The EU and World Regionalism: The Makeability of Regions in the 21st Century (Aldershot: Ashgate Publishing Ltd, 2009). 128 European Union, ‘Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community’, 13 December 2007, 2007/​C 306/​01. 129 European Union, ‘Consolidation Version of the Treaty on European Union’, reproduced 30 March 2012, 2010/​ C83/​01. Title V, in particular Articles 24–​35. 130 The common position requirement was first adopted in European Union, ‘Treaty on European Union (Consolidated Version), Treaty of Maastricht’, 7 February 1992, Official Journal of the European Communities C 325/​5, entered into force 1 November 1993. 131 U Khaliq, Ethical Dimensions of the Foreign Policy of the European Union:  A Legal Appraisal (Cambridge: Cambridge University Press, 2008) 88. 132 See K Smith, ‘The European Union at the Human Rights Council: Speaking with One Voice but Having Little Influence’ (2010) 17 Journal of European Public Policy 2, 224–​41.

The Human Rights Council  205 Weiss argues that groups and alliances obstruct the UN’s work, with the North-​ South divide impeding a ‘sensible regrouping of the majority of voices, which should change from issue to issue’.133 However, Abebe, a delegate to the Council from Ethiopia, insists that such subgroups are necessary because human rights discourse and practice are skewed towards Western experiences, and therefore developing states require subgroups in order to represent their views at and enable their participation within human rights bodies.134 The alliances have generally had a negative effect on the Council’s ability to take action.135 States holding membership of more than one group, especially those with large membership, have many allies to protect them from action. Alliances between groups remain, as occurred at the Commission, which often results in what Schrijver identifies as ‘the Rest against the West’.136 OIC dominance of proceedings, the EU’s passivity, and the undermining actions of the LMG have had a negative impact upon the Council’s ability to fulfil its mandates.137

(b)  Selectivity, bias, and partiality One main method that the Council’s creators sought to deploy to combat politicization was the introduction of ‘founding principles’ as guidelines for the body’s work. Those principles were part of yet another compromise agreement during reform discussions about competing visions of the Council—​and particularly its composition. The founding principles, like the soft membership criteria set out in Resolution 60/​ 251, sought to appease both sides in the debate about membership and representation. Those principles sought to address the concerns that an intergovernmental body open to all states would have the same problems that beset its predecessor, but they have largely failed. The founding principles are first set out in the Preamble to Resolution 60/​251,138 which stresses ‘the importance of ensuring universality, objectivity and non-​ selectivity . . . and the elimination of double standards and politicization’. Repetition of these principles throughout the Resolution139 underscores that they apply to all aspects of the body’s mechanisms, proceedings, and work.140 The founding principles also emphasize the need for dialogue and cooperation. This reflects the Global South’s concerns that human rights are an issue of exclusive domestic jurisdiction, and that international human rights are often used as a neo-​colonial tool of oppression against states with limited human rights capacities or capabilities. Ensuring 133 Weiss, above n 78, 51. 134 A Abebe, ‘Of Shaming and Bargaining:  African States and the Universal Periodic Review of the United Nations Human Rights Council’ (2009) 9 Human Rights Law Review 1, 2. 135 See S Hug and R Lukacs, ‘Preferences or Blocs? Voting in the United Nations Human Rights Council’ (2014) 9 The Review of International Organisations 1, 83–​106. 136 Schrijver, above n 13, 812. 137 See Freedman, above n 16, Chapters 6 and 8. 138 GA Res 60/​251, above n 67, preambular para 9. 139 Eg, Ibid, paras 2, 4, 5(e), 12. 140 Kälin et al, above n 42.

206  Rosa Freedman states’ consent and cooperation is an integral feature of the Council’s work and proceedings. It is based on the idea that such cooperation is required to ensure that states can, and indeed will, comply with human rights obligations. The Council’s founding principles impose legal requirements. Yet, owing to the Council being a political body, governments must accept and apply those principles for change to occur.141 The principles are open-​ended and somewhat ethereal, indicating that they are guidelines rather than precise requirements. They reflect the criticisms levelled at the Commission, and stem from interstate negotiations on the Council’s creation. The Council’s founding principles divide into two broad categories: principles that guide its work on human rights, and principles that guide its relationship to individual states. The principles concerning human rights work seek to ensure that the work is even-​handed and non-​selective. The principles aimed at the Council’s relationship with states seek to ensure effective fulfilment of its mandate. The founding principles ‘are valuable reminders of how the promotion and protection of human rights should be approached in the United Nations’.142 Selectivity, bias and lack of even-​handedness have impacted upon the body’s work throughout its existence. Yet selectivity and bias must be expected of a universal body consisting of members from across all UN regional and political groups and where many political views on human rights are represented. What is most concerning is not that the selectivity and bias exist, but rather the extent to which they are apparent throughout much of the Council’s work. Indeed, it is that selectivity and bias that has given rise to significant criticisms of the Council from academics, civil society and the media. Failure to treat states in an even-​handed manner is a main way in which the field of human rights becomes politicized. Alongside human rights bodies, such politicization can occur within, for example, NGOs143 and the media.144 Heinze notes that the concept of even-​handedness has not adequately been explored,145 and provides a three-​part test to identify lack of even-​handedness.146 Under the third prong of his test, selection of human rights violators becomes illegitimate when motivated by a ‘political, social or cultural conflict’ unrelated to the content of the human rights at issue.147 The ongoing, overwhelmingly disproportionate focus on a state such as Israel, in both the Commission and the Council, often as a pretext for side-​lining violations claiming far greater numbers of victims and far more egregious abuses than the Israel-​ Palestine conflict has done, raises serious questions about the Council’s adherence to its 141 Scannella and Splinter, above n 23. 142 Ibid,  50–​1. 143 See E Heinze, ‘Even-​handedness and the Politics of Human Rights’ (2008) 21 Harvard Human Rights Journal 7. 144 See E Heinze and R Freedman, ‘Public Awareness of Human Rights: Distortions in the Mass Media’ (2010) 14 International Journal of Human Rights 4, 491–​523; E Heinze, ‘The Reality and Hyperreality of Human Rights: Public Consciousness and the Mass Media’ in R Dickenson, E Katselli, C Murray, and O Pedersen (eds), Examining Critical Perspectives on Human Rights: The End of an Era? (Cambridge: Cambridge University Press, 2011). 145 E Heinze, above n 143, 8. 146 Ibid,  8–​9. 147 Ibid, 31.

The Human Rights Council  207 mandate. Even-​handedness does not require equal attention to be devoted to all states, but rather that the level of condemnation should be ‘roughly proportionate to actual levels of abuse’.148

(c)  Country-​specific situations A vital aspect of the Council’s work is scrutiny of country situations where grave or ongoing violations occur. This area is perhaps the most open to politicization owing to country-​scrutiny depending as much on international relations as on the merits of such scrutiny taking place. There are three politicized ways in which the Council deals with country situations. It excessively scrutinizes some countries, altogether ignores other abusers, and shields yet others from action taken against abusive regimes. When the Council focuses excessive and disproportionate attention on a particular state, it creates an ostensible ‘success story’.149 Often excessive scrutiny provides significant political and diplomatic pressure that forces a country to cease abusing human rights. The point here is not that the states under the spotlight do not merit attention but rather that the UN’s constant focus on one grave human rights situation masks its failures elsewhere. Israel150 and Syria fall into the first category, with the Council disproportionately focusing on those states, at various times, as compared with other similar or worse situations elsewhere. Those conflicts have killed, injured, displaced, and otherwise seriously harmed large numbers of civilians, and of course are deserving of attention within the Human Rights Council, and more broadly within the UN. However, the disproportionate scrutiny of those two conflicts as compared with other, similar situations151 with similar if not many more victims, at least in part is owing to politicization of the Council. OIC members dominate at the Council. They are the drivers behind the excessive focus on Israel and, as will be explored later, on Syria.152 In relation to Israel, their objectives include political, religious, cultural and regional ties with the Palestinians and with affected neighbouring states. Crucially, those countries also use Israel to divert attention away from systemic violations within influential OIC members such as Pakistan, Algeria, and Egypt. Another reason that some countries overtly politicize the UN in relation to Israel is because of its ties with the US. Israel is seen as the US foothold

148 Heinze and Freedman, above n 144, 498. 149 Freedman, above n 16, 133–​8. 150 See, for example, R Freedman, ‘The United Nations Human Rights Council: More of the Same?’ (2013) 31 Wisconsin Journal of International Law 2, 209–​51. 151 As pointed out by then-​Secretary general Kofi Annan: UN Press Release, ‘Secretary General in Message to Human Rights Council Cautions against Focusing on Middle East at expense of Darfur, Other Grave Crises’, 29 November 2006, UN Doc SG/​SM/​10769-​HR/​4907.See, also, Speech by Kofi Annan, 8 December 2006, in which he stated ‘we must realise the promise of the Human Rights Council which so far has clearly not justified the hopes that so many of us placed in it’. 152 See Section 5.6(b) below.

208  Rosa Freedman in the Middle East. That relationship encourages anti-​US states, such as Cuba, China, Venezuela, and Russia, to use Israel as a way of attacking US hegemony and interference. The Cold War might long be over, but the practices learnt during those times still persist. That disproportionate attention can be compared with the body’s failure to address grave violations in countries that yield political power in terms of alliances with many Council members. Such countries include China, Russia, and Egypt, amongst others, all of which are known grave abusers and where crises and ongoing abuses have altogether been ignored by the Council. When looking at the Council’s composition, it is clear why China’s abuses in the lead-​up to the Beijing Olympic Games (2008), Russia’s violations during incursions into Georgia and South Ossetia (2008), and the grave abuses during Egypt’s revolution have not been discussed at the body. Those countries have strong alliances across regional groups and political blocs that dominate the Council and therefore are able to shield them from scrutiny and action. Other countries, such as Sudan and Sri Lanka, have received some attention but their allies have shielded them from significant criticism or action and instead have deflected the focus onto human rights abuses committed by non-​state actors within those countries. Sudan is a member both of the African Group and of the OIC, which are respectively the largest regional group and largest political bloc at the Council. Sudan therefore received significant support from allied states, but that support did not fully shield it from attention. The weight of evidence meant that violations could not be swept under the carpet and that Darfur could not be kept off the Council’s agenda. Instead, Sudan’s allies ensured that the Council apportioned blame on other actors for abuses in Darfur and called for capacity building and assistance to Sudan’s government. The main problem with this approach is that it is used as a tactic to deflect attention away from state-​sponsored abuses. Calls to support Sudan’s government were a method for shielding Sudan. They did not acknowledge, let alone deal with, the government’s responsibility for those violations. Instead, they provided a smokescreen that allowed Sudan to continue to collude in the atrocities within Darfur. Although claims of lack of capacity may be true in fragile states, they are increasingly being used by many countries that have the resources but lack the political will to implement rights. Those calls for assistance are taken up by countries’ political and regional allies. That stops the Council taking meaningful action on grave abuses within those states. Instead, pressure is placed on the UN and aid agencies to support governments that are actually perpetrating gross and systemic violations.

(d)  Ebbs and flows An early warning of the Council’s politicization was seen during the negotiations on the Institution Building Package and the setting of the Council’s permanent agenda to be followed at each regular session. The agenda focuses Council attention on specific human rights areas that directly correlate to various aspects of Resolution 60/​251, as

The Human Rights Council  209 well broader items allowing discussions of any issues pertaining to human rights.153 Two agenda items, however, directly contradict the Council’s founding principles of non-​selectivity and universality. One country-​specific situation is singled out, under Agenda Item 7, to be discussed at every regular Council session—​the human rights situation in ‘Palestine and other occupied Arab territories’. This is clearly selective, particularly given the persistence of other long-​standing and graver crisis regions or situations. One thematic right is also singled out and placed on the permanent agenda: Item 9 mandates the Council to discuss ‘racism, racial discrimination, xenophobia and related forms of intolerance’ at every regular session. Both of these agenda items were proposed and supported by Organisation of the Islamic Conference (OIC) members and their allies. That bloc’s dominance at the Council enabled it to secure items clearly related to its political objectives despite the obvious violation of the body’s founding principles. The selectivity and bias within the permanent agenda occurred within a broader context of politicization at that time. During the Council’s initial years there was a pervasive ‘us versus them’ culture focused on remedying the Commission’s perceived wrongs, particularly vis-​à-​vis Muslim states. African, OIC and Arab League states dominated proceedings and, acting as groups or blocs, ensured that their views and objectives were at the fore of all discussions. The EU as a bloc remained passive in its interactions formally and informally with relatively few exceptions of individual states, like the UK and Germany, that were more active. Canada, therefore, frequently was the lone dissenting voice and vote on heavily politicized issues such as selectivity against Israel, protection of known abusers such as Sudan, and thematic issues like defamation of religion. During the Council’s early years, it seemed as though the new body would be little more than old wine in new bottles.154 Selectivity, bias and politicization focused on different issues than at the Commission, but it was no less pervasive or pernicious. Many states, observers, scholars and civil society organisations sounded the death knells for a body that was only just being birthed. The Council’s credibility was undermined by events like the Special Session on Sri Lanka in 2009155 and by the body’s failure even to mention human rights abuses linked to the Beijing Olympics or to the Russian incursions in Georgia and South Ossetia. Indeed, some civil society actors privately tried to persuade EU states to withdraw from the body in order to leave it as ‘no more than a glorified meeting of NAM to which no-​one will pay any attention’.156 The turning point came with the Arab Spring uprisings in 2010 and the fracturing of the dominant political bloc at the Council. The Council seemingly became less politicized with a second wave of membership after the Arab Spring began. Fragmented regional groups and political blocs, largely owing to disunity and disharmony amongst the OIC, led to greater cross-​regional co-​operation.  At the same time as those uprisings, the US engaged with the Council, and many of the more moderate states, particularly from Latin America and Africa,

153

See Section 5.3(e) above. A term used by Schrijver in his article about the Council’s early sessions. 155 See Section 5.6(b) below. 156 Interviews conducted by the author on the basis of anonymity 2012–​2015 (funded by the British Academy). 154

210  Rosa Freedman found their voices. As a result, the Council was more able to focus on fulfilling its mandate and on a range of activities aimed at protecting and promoting human rights. Special Sessions became more broadly focused, regular sessions included panels and discussions on emerging human rights issues and areas, and there emerged a greater consensus amongst regional groups and political blocs in terms of actions taken to protect and promote rights. Those steps forward demonstrated that the body’s theoretical potential may in fact be harnessed. Membership of more moderate states was crucial to this improved work atmosphere and practices, as was a clearer understanding of the institution’s modalities and working methods that had been developed during the initial years. Despite those strides forward, politicization persisted in relation to some key issues. Selectivity in the Council’s dealings with Syria, as compared with other similar situations in the Middle East, is one significant example of how the Council ignored its founding principles in terms of country situations. Others include the Council’s treatment of LGBT rights, explored in detail below, and the ways in which states have selectively treated NGOs speaking at the body when those organizations have raised issues to which the dominant blocs object. In particular, the International Service for Human Rights, when it attempted to use its intervention to draw attention to reprisals against a human rights defender in China,157 and UN Watch, when it has drawn repeated attention to the gross politicization against Israel, have effectively been silenced by states selectively using procedural points to interrupt and undermine their interventions.

5.5  Mandates and powers Resolution 60/​ 251 sets out four distinct, yet interwoven mandates:  protecting, promoting, developing, and mainstreaming human rights. Firstly, the Council is tasked with addressing short-​term human rights situations where victims need to be protected from abuses. Various tools are available for the body to fulfil this mandate: convening special sessions, making recommendations, passing decisions and resolutions, and instigating fact-​finding and investigations. The Council is also required to promote longer-​term human rights compliance through capacity-​building, advisory services, fact-​finding, dialogue with states and non-​state actors, and providing technical and other assistance. The third aspect of the Council’s work is the development of human rights, both in terms of existing and new areas. Lastly, the Council is also required to mainstream human rights and to work with other parts of the UN human rights machinery. In order to achieve those mandates the Council has specific powers, which we will examine in the final part of this section, as well as mechanisms that will be explored in the following sections. 157 International Service for Human Rights, ‘China Interrupts Moment Silence for Cao Shunli at the UN Human Rights Council’. 20 March 2014, available at: http://​www.ishr.ch/​news/​china-​interrupts-​moment-​silence​cao-​shunli-​un-​human-​rights-​council.

The Human Rights Council  211

(a) Promotion The Council’s first mandate is to be ‘responsible for promoting universal respect for the protection of all human rights’. This demonstrates the interlinked nature of protecting and promoting rights. Promotion activities focus on mid-​or long-​term compliance with human rights obligations, including but not limited to capacity-​building, technical assistance, education, and awareness-​raising. While promoting rights focuses on strategies for implementation, thus aiming at longer-​term protection, protecting rights focuses on preventing or remedying violations that are occurring or are imminent. Promotion identifies long-​term challenges that do not always require immediate or strong action. The Resolution has a non-​exhaustive list of some activities that the Council must undertake to promote human rights. Council promotion activities include helping, supporting or enabling states to implement their human rights obligations and commitments, for example by promoting human rights education.158 The Council must provide human rights advisory services and technical assistance, which may include assistance and expertise from UN staff, other states, and human rights experts. The Council, crucially, is required to support and enable national human rights capacity-​building, which is of particular importance to states in the Global South. Capacity-​building activities promote human rights by providing states with tools for universal adherence to human rights norms. The Council must also promote human rights by enabling dialogue on thematic issues.159 Such dialogue occurs throughout Council sessions. Discussions facilitate interactions between states, human rights experts, NGOs and other non-​state actors. Dialogue ensures that the Council is a forum for advice, assistance and support. The Council is required to identify gaps in states’ human rights compliance or to respond to information from non-​state actors, other UN bodies or the country concerned. Promotion activities, therefore, can respond to individual states’ needs and provide specific assistance with particular problems. The Council is required to ensure that those activities ‘be results oriented, allow for subsequent follow-​up discussions to recommendations and their implementation and also allow for substantive interaction with special procedures and mechanisms’.160 Those requirements underscore the need for the body to promote rights by ensuring effective follow-​through, at the national level, on its work. Emphasis is placed on the promotion mandate being conducted ‘without distinction of any kind and in a fair and equal manner’. That language reflects some states’ concerns that economic, social and cultural rights should be treated in the same way as civil and political rights. The importance of devoting equal time and resources to both non-​controversial and controversial rights is also stressed. Emphasis on fairness and



158

GA Res 60/​251, above n 67, para 5(a). Ibid, para 5(b). 160 Ibid, para 12. 159

212  Rosa Freedman equality can be read as a general instruction not to single out countries, regions or peoples for unfair attention, nor to ignore others nor shield them from scrutiny. Promotion activities are by their nature less contentious than protection activities. They focus on cooperation, constructive dialogue and support in terms of the language used and methods for undertaking the work. That does not make the promotion mandate any less invasive than the protection mandate in terms of the aims to improve human rights compliance within a country, but the methods used to achieve those aims create fewer tensions with states.

(b) Protection Protection ideally includes a swift, strong, and short-​term response to violations. The Council’s protection activities are typically unlikely to be invited, or indeed cooperated with, by the country concerned. Protecting human rights within a state’s national jurisdiction is contentious because of the tensions with state sovereignty and the fact that no country enjoys being named and shamed by their peers. It is this facet of the Council’s mandate where one might expect most pushback from states and ­indeed it is protection activities that meet the most resistance from countries and their allies. Other UN bodies such as the Security Council have the power to intervene in, or to protect, human rights during, grave or crisis situations. Those bodies are not, however, principally concerned with human rights. The Council’s protection mandate sought to address that gap by requiring the Council to perform a role not undertaken elsewhere. It is primarily aimed at situations or ongoing violations within a particular state. Ongoing or systemic abuses are often committed, or tolerated, by governments. As a result, the Council is required to protect human rights. Protection traditionally refers to activities undertaken, notably by states, to ensure that victims are shielded from violations. The body ‘should address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon’. The word ‘including’ suggests that ‘gross and systemic violations’ is one example but not the exclusive focus and therefore may also include long-​term or less egregious acts. The Council is mandated to make recommendations on those situations. However, they are not limited to being solely condemnatory, as had occurred at the Commission, but can incorporate all aspects of the body’s protection and promotion mandates. Recommendations on such situations can, and arguably should, for example, include ‘emphasis on encouraging it and addressing its capacity-​building needs’ alongside condemning violations,161 but the emphasis on protection requires the Council to identify changes states need to make in order to cease violating rights. 161 W Kälin, C Jimenez, J Künzli, and M Baldegger, ‘The Human Rights Council and Country Situations: Framework, Challenges and Models’, Study Commissioned by the Swiss Ministry of Foreign Affairs (Geneva: Institute of Public Law, University of Bern, 2006) 16.

The Human Rights Council  213 The Council’s protection activities in many ways have led to the most criticisms from countries and from external observers. As we shall see when discussing the Council’s powers, mechanisms and relationships with other bodies, the protection mandate has not been backed with the necessary tools to ensure that the Council’s resolutions or recommendations are implemented. Of course, this is a more general flaw within the international human rights law system, and one that the new body has failed to address. As a result, actions on countries like Sudan during the genocide in Darfur, on Syria during the civil war, on Sri Lanka after the slaughter of large parts of the Tamil population, or indeed on Israel and the Occupied Territories, have done little to effect change on the ground unless or until other UN bodies or international and regional organizations have used the information and fact-​finding undertaken by the Council, which often does not occur.

(c)  Developing human rights The Council is also mandated to contribute to the ‘development of international law in the field of human rights’.162 That involves making recommendations to the General Assembly in terms of increasing and developing legal aspects of human rights, and by identifying areas needing further attention. We shall examine the Council’s development of the rights of vulnerable groups and of Third Generation Rights to understand how the body’s activities are aimed at this aspect of its mandate. The Council’s mandate to protect and promote human rights thematically includes looking at specific rights and also at the rights of vulnerable groups. The need for specific protection for vulnerable groups was first recognized in relation to women163 and since then there has been creation of specific mechanisms to deal with children, minorities, and persons with disabilities, amongst others. In terms of developing rights in relation to vulnerable groups it has turned its attention to other vulnerable groups in order to provide better protection and promotion of their rights. As a forum, the body has been used to develop and promote rights of groups that previously had not received specific protection from the international human rights system. States and civil society organizations have used the Council to discuss and promote the rights of groups such as peasants and the elderly with varying degrees of success. Those processes have included panels, discussions, intergovernmental working groups, as well as decisions and resolutions. One outcome has been to provide the basis and support for treaties on those vulnerable groups. The Council provides a strong and influential forum for such work to take place, not least because it brings together the full range of actors needed to develop and garner sufficient consensus on such issues. Full and frank debates are crucial to that process, as is the inclusion of civil society actors and experts on human 162 GA Res 60/​251, above n 67, para 5(c). 163 For a comprehensive overview of the development of women’s rights in international human rights law, see D Otto, ‘Women’s Rights’ in D Moeckli, S Shah, and S Sivakumaran (eds) International Human Rights Law (Oxford University Press, 2010) 344–​64.

214  Rosa Freedman rights. As a result, the Council has played a leading role in the continued and further protection of minority and vulnerable groups. Yet there is traditionally one main exception to the Council’s protection and promotion of vulnerable groups, and that is of sexual orientation and gender identity minorities. It took five years and seventeen sessions before the Council passed a resolution164 on lesbian, gay, bisexual, and transgender (LGBT) persons and the need to ensure the realization of their equal human rights.165 Resolution 17/​19 (adopted in June 2011) was a seminal moment, heralded as a milestone both for the Council and for LGBT rights. Until then, discussions on LGBT rights had been blocked by the OIC and by many African countries.166 But the resolution was an anomaly enabled by the OIC’s internal rifts at that time. Resolution 17/​19 on LGBT rights was passed during the Arab Spring uprisings. The OIC was experiencing internal divisions based on ongoing national conflicts. Events since the Panel demonstrate backwards steps on LGBT rights. It is crucial to understand that OIC members were conspicuously absent from the negotiating process.167 Discussions at the body were the first time that OIC states registered their disapproval but by then, it was too late for them to block the resolution. South Africa, who tabled the resolution, faced significant opposition from many of its regional neighbours in the African Group. The strength of that opposition, and the bravery of South Africa, Mauritius, Zambia, and Burkina Faso in voting for the resolution, ought not to be underestimated. A year later, when the Panel168 took place on Wednesday, 7 March 2012, the OIC was almost fully reunified. As the UN Secretary-​General Ban Ki-​Moon delivered a video address opening the Panel on LGBT Rights, every delegate, bar two, from OIC member states that were in attendance stood up and filed out of the Council Chamber.169 The bloc flexed its collective muscles to undermine discussions on LGBT rights. That decision seems to have been designed to undermine the panel’s legitimacy. Islamic states were reported as saying that the panel had ‘nothing to do with fundamental human rights’. OIC members, including the Ambassador of Pakistan, registered their ‘concern’ and ‘opposition’ to ‘controversial notions like sexual orientation and gender identity’. South Africa, in the face of pressure from regional allies, announced that it would not table a resolution170 on LGBT rights at the 23rd Session.171 South Africa’s volte 164 HRC Res 17/​19, ‘Human rights, sexual orientation and gender identity’, 14 July 2011. 165 R Freedman, ‘The United Nations Human Rights Council’s Backwards Step on LGBT Rights’, IntLawGrrls, 7 June 2013, available at http://​ilg2.org/​2013/​06/​07/​the-​united-​nations-​human-​rights-​councils-​backwards-​step-​ on-​lgbt-​rights/​. 166 Ibid. 167 ARC-​ International, ‘17th Session of the Human Rights Council’, June 2011, available at:  http://​arc-​ international.net/​global-​advocacy/​human-​rights-​council/​hrc17/​. 168 S Gray, ‘ “Milestone” LGBT Discussion at UN Human Rights Council Welcomed Despite Walkout’, Pink News, 8 March 2012, available at:  http://​www.pinknews.co.uk/​2012/​03/​08/​milestone-​lgbt-​discussion-​at-​un-​ human-​rights-​council-​welcomed-​despite-​walkout/​. 169 Ibid. 170 B Last, ‘Launches, Lunar Landings and Hyper-​Speed Delegates’, FCO Blog, 3 June 2013, available at: http://​ blogs.fco.gov.uk/​boblast/​2013/​06/​03/​222/​. 171 HRC Draft Concept Note, ‘The role of the UN system in advancing the business and human rights agenda’, 23rd Session (2013), available at:  http://​www.ohchr.org/​Documents/​HRBodies/​HRCouncil/​RegularSession/​ Session23/​Concept_​Note_​HRAgenda.pdf.

The Human Rights Council  215 face was a sign of a growing momentum against LGBT rights. The international movement to protect ‘traditional values’ and ‘the family’ has grown ever since 2011, with resolutions, panel discussions and other ‘soft law’ mechanisms devoted to their protection. Depending on how you count them, seventy-​six countries around the world (and forty-​one in the Commonwealth) still criminalize LGBT people and/​or their actions, denying them fundamental rights and freedoms including through imprisonment, torture and the death penalty. Many of those states have been at the fore of these backwards steps on LGBT rights. While some vulnerable groups such as the elderly have secured wide-​ranging support from states, discussions on other groups have underscored deep ideological divides between different groups and blocs. The contrast is stark between those states seeking to protect LGBT persons and those seeking to protect peasants as a vulnerable group. Global North states have largely resisted peasants’ rights, viewing them as too closely tied to land rights rather than the rights of individuals. On the other hand, countries that criminalize LGBT persons or deny them equal rights have undermined attempts to provide for that group as needing specific human rights protection. What becomes clear is that ideologies and political objectives undermine Council attempts to protect and promote human rights universally and without bias or selectivity. Alongside its work on developing rights in relation to vulnerable groups, the Council’s work under its development of human rights mandate has largely focused on Third Generation Rights. ‘Third Generation’ terminology was first articulated by Vasak in relation to collective rights, or those rights which could only be realized ‘by the combined efforts of individuals, states, public and private associations, and the international community’.172 Developed during the process of decolonization,173 the first wave of Third Generation Rights is not rooted in human rights ideologies but rather in the colonial experience. States that had been formed in response to, and out of the ashes of, colonization sought to assert rights to govern over themselves, as well as to economic and social development.174 Those same states have more recently sought to promote and enshrine newer Third Generation Rights that reflect their ideologies on human rights.175 The second wave of Third Generation Rights includes development of rights to a democratic and equitable international order; international solidarity; to a clean and healthy environment; and to development. Rather than being a response to imperialism and based on post-​colonial discourses, those rights are founded upon ideologies not previously represented within international human rights law. One interesting feature of the second wave of Third Generation Rights is that some of them bring into 172 See, for example, K Vasak ‘Les différentes catégories des droits de l’homme’ in T de Lapeyre and K Vasak (eds) Les dimensions universelles des droits de l’homme (Bruylant, 1990). Although Donnelly insists that all human rights require collective action for realization (J Donnelly, ‘The Theology of the Right to Development: A Reply to Alston’ (1985) 15 California Western International Law Journal 521). 173 K Vasak, The International Dimensions of Human Rights (1982). 174 See, for example, GA Res 41/​128, ‘Declaration on the Right to Development’, 4 December 1986. 175 See generally J Morgan-​Foster, ‘Third Generation Rights: What Islamic Law Can Teach the International Human Rights Movement’ (2005) 8 Yale Human Rights and Development Law Journal 67–​116.

216  Rosa Freedman the human rights matrix matters that are linked to human rights but would traditionally have been dealt with through other institutions. In particular, issues that might be addressed through environmental bodies or financial institutions are being brought into the Council as human rights matters. The reluctance of many other specialist bodies to address human rights issues stemming from their issue areas, particularly in the context of finance and the environment, has led to those matters being brought into the international human rights arena where they will at least receive attention and be addressed to some extent. This raises complex and controversial questions as to whether other institutions are capable of dealing with those matters, and if so how best to encourage them so do so, as well as whether the human rights system is well-​placed to address such issues. A main criticism is that the Council is being used to dilute or undermine understandings of international human rights. Some countries at the fore of promoting these rights have suspect motives, unrelated to human rights, for doing so; whereas others idealistically seek to have their ideologies and voices represented within the international human rights system. Despite resistance from certain key states and groups, the Council’s work on Third Generation Rights, both in terms of developing and mainstreaming human rights, demonstrates the body’s capabilities for longer-​term impact on international human rights.

(d) Mainstreaming Finally, the Council is instructed to ‘also promote the effective coordination and the mainstreaming of human rights within the United Nations system’. This is the least discussed aspect of the Council’s mandate, both by observers and by practitioners.176 Mainstreaming focuses both on activities undertaken with other parts of the UN human rights machinery and also those that ensure human rights work takes place within or in conjunction with other UN bodies and agencies. The requirement (‘should’) to work as part of the wider UN machinery aims to ensure that human rights are not dealt with in a vacuum. States were not only concerned that the Council should not duplicate the work of other bodies, but were also keen to ensure that the body continue to set standards and share information with the UN human rights machinery. The Council’s mandate to raise human rights’ profile and strengthen interactions with other UN issue areas and bodies, for example development or security,177 derives from broader aims of strengthening the status of human rights within the UN. The Council is required to promote implementation of goals, commitments and obligations ‘emanating from United Nations conferences and summits’.178 That function is central to the Council’s role as the UN’s principal human rights body. It means 176 Although see P Hunt, ‘How to Advance The Council’s Mainstreaming Agenda’, Glion Human Rights Dialogue Discussion Paper, 7 May 2015. 177 GA Res 60/​251, above n 67, para 4. 178 Ibid, para 5(d).

The Human Rights Council  217 that it should take responsibility for supporting, advising and monitoring implementation of broader UN human rights work. Resolution 60/​251 also includes mainstreaming requirements that advance both the promotion and protection mandates. Those requirements relate to the Council’s role in the wider field of human rights. The Council, for example, is mandated to work closely and maintain a relationship with other human rights bodies, organizations, and state and non-​state actors.179 Mainstreaming also involves the Council ensuring the involvement of non-​state actors, including other UN bodies and agencies.180 While it may sound obvious, this is a crucial aspect of the Council’s work and is part of a wider UN drive to strengthen and give greater visibility to human rights. The mainstreaming agenda, which is included within the Council’s mandate, includes steps being taken to ensure that the body’s work feeds into UN bodies outside of the human rights system, including the Security Council, and that human rights are used as an early warning system for other issue areas. This is crucial to human rights being a UN pillar rather than operating within a vacuum.

(e)  Functions and powers The Council is frequently criticized for not ‘doing’ enough, in particular when it comes to protecting human rights. Yet it is clear that many of those critics have not borne in mind what the Council is and is not able to do. The Council’s powers are commensurate with it being an intergovernmental body, which means that it has neither binding nor adjudicatory powers. It is important to consider the Council’s use of some of its central powers and functions, generally, before turning in the next sections to specific activities that it undertakes. The Council has only non-​binding powers. However, non-​binding acts can have both legal effects and political implications:181 they seek ‘to influence behaviour, but without creating law’,182 yet frequently form the basis for ‘soft law’.183 Such acts include recommendations, declarations, codes of conduct or other generally non-​binding resolutions.184 These instruments require state cooperation and consent for implementation. Resolution 60/​251 is rather general and broad regarding the Council’s functions. The Council’s four main functions are: recommendations, standard-​setting, compliance powers, and technical powers. The Council’s main function, or at least the one most often mentioned in Resolution 60/​251185 is making recommendations. As a general matter, recommendations, whilst 179 Ibid, para 5(h). 180 Ibid, para 11. 181 P Sands and P Klein, Bowett’s Law of International Institutions (London: Sweet & Maxwell, 2001) 261–​2. 182 J Klabbers, Introduction to International Institutional Law (Cambridge:  Cambridge University Press, 2002) 201. 183 See M Shaw, International Law (5th edn, Cambridge: Cambridge University Press, 2003) 110–​12. 184 Klabbers, above n 182, 201. 185 Resolution 60/​251, paras 3, 5(c), 5(i), 12.

218  Rosa Freedman being important for political purposes,186 are not binding on member states outside the organization.187 Organizations may, however, use recommendations to state the current or suggested law.188 Recommendations may even have some legal effects, for example requiring members to implement and monitor the suggested measures.189 Resolution 60/​251 emphasized resolutions as a main function, and they, alongside Council decisions, have been crucial methods of providing information about protecting and promoting rights and have frequently been used to place political pressures on countries. The Council produces resolutions and decisions on thematic and country-​specific issues, with a sizeable number of resolutions repeated during successive sessions in order to emphasize their importance. While they do not need to be passed by consensus, many are passed with very few or no dissenting votes albeit abstentions are more frequently deployed. They are referred to by UN bodies as well as regional and state actors. There has been increasing criticism of the proliferation of resolutions with concerns expressed that they are becoming meaningless owing to lack of implementation. Despite being by far the most common function used during the Council’s early years, resolutions and decisions have not remained the Council’s sole or even main focus. Standard-​setting is another key function set out in Resolution 60/​251. The Council is mandated to assume the Commission’s standard-​setting role. The power to adopt norms extends to various aspects of the Council’s mandate. The Council’s standard-​setting may produce acts which bind all UN members because the ‘norms enunciated . . . may be linked to one or another ‘classical’ source of international law’.190 Perhaps most importantly, the Council is given the power to undertake certain supervisory roles, notably monitoring state compliance with human rights. States in breach of their obligations may face diplomatic or political pressure. More far reaching, however, the Council may suspend member states under Paragraph 8. Although this provision signals that grave violations may be dealt with through suspension, it is unlikely to be used as often as warranted owing to political and diplomatic reasons as well as the difficulty in gaining a two thirds majority of the General Assembly. Exclusion has thus far been used only to limited effect. Alston nevertheless insists that the clause ‘is an important symbolic component in the sense that it would allow for any country that is widely condemned for its human rights record to be suspended from membership’.191 The Council also has powers to deal with states that do not cooperate with the body’s recommendations or monitoring, including recommending visits from special rapporteurs, appointing a country-​specific mandate holder, or calling on the GA or Security Council to look into the situation.192 186 On the political weight of recommendations, see H G Schermers and N M Blokkers, International Institutional Law (3rd edn, Dordrecht: Martinus Nijhoff, 1995), para 1226. 187 I Detter, ‘The Effect of Resolutions of International Organisations’ in J Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of K. Skubiszewski (London: Kluwer Law, 1996) 389–​90. 188 Sands and Klein, above n 181, 286–​7. 189 Ibid. 190 Ibid,  287–​8. 191 Alston, above n 14, 202. 192 See, for example, Kälin et al, above n 42, 18.

The Human Rights Council  219 The Council’s functions are largely focused on developing human rights, encouraging compliance and undertaking awareness-​raising, capacity-​building, and constructive engagement. Of course, powers other than those set out above are also deployed and are crucial to the Council’s activities but most follow similar patterns of information-​sharing, cooperative dialogue, and support. What becomes clear is that the body’s functions are geared strongly towards promoting, developing and mainstreaming rights but are less useful in protecting those rights. Indeed, it is not just a lack of binding powers that hampers the protection of human rights, but also insufficient powers for the Council’s work to be used as an early warning tool in terms of grave atrocities or as a mechanism for preventing conflicts in their early stages. As such, the Council ought to be assessed on what it is able to achieve using those powers and ought to be strengthened through discussions about what additional powers would be required for it further to fulfil its mandates.

5.6  Mechanisms Resolution 60/​251 created two mechanisms that directly addressed criticisms of the Commission and that aim to assist the Council with fulfilling its mandate: Universal Periodic Review (UPR) and Special Sessions. UPR largely is aimed at promoting human rights, although there are of course some protection activities that occur during those reviews. Special Sessions are aimed at protecting human rights in grave and crisis situations. Both of the mechanisms enhance the Council’s ability universally to fulfil its mandate and to respond to serious situations in a timely manner. They operate outside the Council’s regular sessions, thus ensuring that they do not divert resources away from the Council’s work but also meaning that they require additional resources both from the UN and from states attending the sessions. In order to assess the mechanisms we shall explore each one individually, focusing on what was envisaged by the Council’s creators and what has occurred in practice.

(a)  Universal Periodic Review The Universal Periodic Review is primarily aimed at promoting human rights. It is widely viewed as an innovative mechanism,193 and is perhaps the most significant change brought about by the Council reform. The UPR modalities were not enunciated

193 G Sweeney and Y Saito, ‘An NGO Assessment of the New Mechanisms of the UN Human Rights Council’ (2009) 9 Human Rights Law Review 2, 203; C Callejon, ‘Developments at the Human Rights Council in 2007: A Reflection of its Ambivalence’ (2008) 8 Human Rights Law Review 2, 334; J Carey, ‘The U.N. Human Rights Council: What would Eleanor Roosevelt Say?’ (2008–​2009) 15 ISLA Journal of International and Comparative Law 460. It is important to note that Alston draws a historical parallel between the UPR and previous review proposals and reporting system at the Commission: Alston, above n 14, 207–​14.

220  Rosa Freedman in Resolution 60/​251:194 the broad overview of the mechanism and its aims195 has little regard to the practicality, or even the possibility, of implementation. The Council was mandated to ‘develop the modalities and necessary time allocation for the universal periodic review mechanism within one year’. It did so through the Institution Building Package, negotiated during the Council’s first year, which provided greater detail of how the UPR would work in practice. The IBP identified the roles, functions, principles and objectives as well as setting out modalities, including:  periodicity and order of the review; process of the review; documents to be used, and the review’s outcome and follow-​up. The actual process of the UPR arguably fulfils the rather broad requirements set out in Resolution 60/​251, although the way in which the processes have been carried out has varied greatly throughout the first two review cycles. UPR was created as a direct response to concerns that some countries were shielded from scrutiny or were ignored altogether by the Commission, as well as the fact that the body was too under-​resourced to focus on anything other than the gravest of violations. This meant that the vast majority of countries, whether Commission members or not, did not have their human rights record scrutinized at all. That situation was exacerbated where it came to Commission members, many of which used that status to block scrutiny of their human rights records. Compliance with human rights monitoring, let alone standards, was sorely lacking amongst some Commission members. Ramcharan notes that some states were ‘strongly opposed’ to the Commission’s monitoring work.196 States would refuse entry to experts and mandate holders, or even ignore their requests, where monitoring conflicted with national aims. States’ attitudes towards human rights monitoring had to change in order for the Council to overcome the Commission’s failings197 and peer review was the main proposal to achieve this. The clear aim for UPR, from the outset, was to ensure that all UN members regularly had their domestic human rights record reviewed, and recommendations made thereupon. Although there is some overlap, this is clearly a mandate distinct from that of the treaty bodies.198 The Council acts as an intergovernmental body and is not constrained by any particular instrument. The goal of the exercise is to produce a broad assessment of compliance with applicable human rights standards not a detailed evaluation of compliance with specific treaties. Indeed, the Council is required to ensure that the UPR ‘shall complement and not duplicate the work of treaty bodies’.199 UPR follows a four-​and-​a-​half year cycle—​although initially this was four years—​ during which all UN member states have their human rights records scrutinized and their compliance with human rights obligations monitored. Each UPR Working Group session reviews sixteen states. Three reviews take place per year, thus covering 194 The Council was required to create the UPR modalities within one year and it did so in the Institution Building Package, which is examined in detail in Section 3.6 (below). 195 GA Res 60/​251, above n 67, para 5(e). 196 B Ramcharan, The UN Human Rights Council (London: Routledge, 2011) 27. 197 Rahmani-​Ocora, above n 11, 17. 198 See chapters in this collection. 199 GA Res 60/​251, above n 67, para 5(e).

The Human Rights Council  221 forty-​eight states.200 The reviews take place in Geneva outside regular Council sessions, with member states sending representatives to the reviews. Many countries send delegates from the highest governmental levels to attend their own reviews, and there is significant reliance on diplomats from other states taking an interest in all sessions rather than only those of their allies or of countries that command significant attention from the media or wider public. Indeed, in the first session OHCHR had to remind—​ and reportedly round-​up—​diplomats to attend reviews of smaller or less politically-​ controversial countries in order to ensure that the rooms were not empty and that delegates from those states were not discouraged from taking seriously future review sessions. Indeed, a crucial element of UPR’s universality is that a broad range of states engage with the review of their peers regardless of the economic or political clout of the country being reviewed. UPR is based on a number of instruments: the UN Charter, the UDHR, UN human rights treaties to which a state is party, a range of human rights regardless of treaty ratification, and states’ voluntary pledges and commitments.201 The first stage involves gathering and collating information on the reviewed state’s human rights situation. Much of the UPR’s success202 depends on the nature and quality of the documents used to conduct the review.203 OHCHR collects and compiles the information, which comes from a range of sources including the country being reviewed, UN bodies and civil society. States’ national reports are limited to twenty pages but can be significantly shorter. During the first session one smaller state provided an oral rather than a written report, and whilst that was accepted it has not become usual practice. Of course, state reports are unlikely to identify all of the human rights issues within a country, and so that information is supplemented by other sources. Alongside the national report, OHCHR compiles a ten page report of UN information204 and a ten page summary of ‘credible and reliable information provided by other relevant stakeholders’, such as NGOs. State cooperation is emphasized as an essential component of the process.205 Gaer argues that the UPR’s ambiguity on state cooperation, and the conflicting visions of the Council’s general role in protecting and promoting human rights, cast doubt on whether such issues will be adequately resolved to allow the UPR to achieve its objectives.206 During the first cycle, the majority of states cooperated to a large extent with preparations for the review and collation of relevant materials. Exceptions predominantly fell into two categories: (1) states, such as the DPRK,207 that might have been expected altogether to refuse to cooperate with the review process and, therefore, 200 Part I Institution Building Package. 201 Ibid, para 1. 202 Gaer, above n 98, 137. 203 Callejon, above n 193, 336. 204 Ibid, para 15(b) stating ‘information contained in the reports of treaty bodies, special procedures, including observations and comments by the State concerned, and other relevant official United Nations documents’. 205 Callejon, above n 193, 335. 206 Gaer, above n 98, 137. 207 Sixth Session of the Working Group of the Universal Periodic Review, 7 December 2009; HRC Res 13/​ 13, ‘Report of the Working Group on the Universal Periodic Review, Democratic People’s Republic of Korea’, 4 January 2010.

222  Rosa Freedman for whom partial cooperation was still a ‘success’; and (2) states, such as Comoros,208 with limited resources for collating relevant materials. States falling under those categories arguably are more likely to have poor human rights records. As Nowak et al point out, it is those states that ‘most need external scrutiny’ and, yet, are least likely to cooperate with, and therefore be impacted by, the UPR process.209 It has been generally accepted that states are obligated to participate in the process, and as such there are no provisions for how to deal with a state that does not engage with the mechanism.210 Indeed, to date there has only been one country that failed altogether to engage with its review and even then it was for a short period of time and that state was reviewed some months later than planned. Israel chose not to attend its UPR session in 2013 as part of that country’s broader boycott of the Human Rights Council at that time. The implications of a country opting out of this universal mechanism are significant insofar as such a boycott could lead to a domino effect. Fortunately, that did not occur in 2013 and diplomatic channels were used to persuade Israel to re-​engage with the UPR. Although the fact that this was a lone and isolated incident is significant evidence of how seriously states take the UPR, it also demonstrates the mechanism’s fragility owing to it so heavily depending upon state engagement and cooperation. The review is led by the Troika of rapporteur states,211 which consists of three Council members, drawn by lots, each from different regional groups. The OHCHR’s role includes overall supervision of the process and advice to the troika. The UPR Working Group, consisting of all Council members and observer states, conducts the three-​hour review. Conducting the review with all Council members sitting as a working group rather than at a plenary session was a compromise to allow all members to participate without taking time away from other Council matters.212 A reviewed state may request that one troika member be from its own region, enabling countries to have a regional ally that understands its cultural sensitivities and/​or issues relating to capacities for human rights protection and promotion. Conversely, a state may decline a position on the Troika as was the case in terms of India and Pakistan for obvious political reasons. The reviewed state’s presentation is followed by comments, questions and recommendations from other states which the concerned state may respond to at any stage. NGOs do not actively participate in the review213 despite providing submissions and being present at the first discursive stages. The UPR’s basis as a cooperative mechanism results in the state under review being able to determine to 208 Fifth Session of the Working Group of the Universal Periodic Review, 13 May 2009; HRC Res 12/​16, ‘Report of the Working Group on the Universal Periodic Review, Comoros’, 3 June 2009. 209 M Nowak, M Birk, T Crittin, and J Kozma, ‘UN Human Rights Council in Crisis—​Proposals to Enhance the Effectiveness of the Council’ in W Benedek, F Benoit-​Rohmer, W Karl, and M Nowak (eds), European Yearbook on Human Rights (Vienna: European Academic Press, 2011) 46. 210 Abebe, above n 134, 7. 211 HRC Res 5/​1, ‘Institution Building of the United Nations Human Rights Council’, 18 June 2007, para 18(d). 212 Callejon, above n 193, 334. 213 NGOs are entitled to observe the review in the room, and may conduct parallel events at the time of the review in the Working Group, but they are only entitled to take the floor later during the consideration and adoption of reports in the Council plenary.

The Human Rights Council  223 which, if any, comments and questions it will respond.214 During initial sessions states rarely responded to written questions submitted in advance, which was a method of questioning preferred by EU members in particular. As a result, questions are mostly asked from the floor during the review although even then the country being reviewed is still able simply to ignore the question. The OHCHR compiles an outcome report within two days for the troika’s and the reviewed state’s approval. The report summarizes which, if any, recommendations the state initially accepts or rejects or on which it reserves judgement. The report is then presented to the UPR Working Group for editing and adoption. At the next scheduled Council Session, the report is considered and adopted. The reviewed state has two minutes to present its acceptance, rejection or reservation on recommendations and reasons. Member and Observer States are allowed to make comments on the outcome of the review and NGOs make ‘general comments’. These contributions are summarized in the report of the Council session and included in the final report, which is then formally adopted by the Council and are available on the OHCHR website. The UPR was mandated to be ‘a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned’.215 Emphasis is placed on the body’s underlying principles, reaffirming the importance of universal application and equal treatment, and the Council is required, in particular, to address capacity-​building needs. The UPR seeks to promote and to mainstream human rights. Promotion occurs through monitoring states’ compliance with obligations and commitments, as well as through providing assistance following the initial review. The gamble is that equal, regular and public human rights monitoring of all states, if it occurs in practice, will encourage countries to change their attitudes towards the human rights machinery.216 Universal Periodic Review, through its universality, directly responds to the criticisms of selectivity217 and politicization218 made against the Commission,219 and was seen as ‘the main drive to depoliticization’ of the human rights body.220 Indeed, observers viewed it as the embodiment of a genuinely reformed human rights body.221 Alston notes the proposal’s main attractions: universality; avoidance of the politicization that had undermined the Commission; and provision of practical human rights support and advice.222 In practice, its record so far is mixed. Much has been written about the Universal Periodic Review.223 The UPR has been the focus of expectation and hope from scholars, civil society and states. In the course 214 M Davies, ‘Rhetorical Inaction? Compliance and the Human Rights Council of the United Nations’ (2010) 35 Alternatives: Global, Local, Political 457, 458–​9. 215 GA Res 60/​251, above n 67, para 5(e). 216 Rahmani-​Ocora, above n 11, 16. 217 Gaer, above n 98, 111. 218 Callejon, above n 193, 334. 219 GA, ‘Secretary-​General Report, Addendum, Human Rights Council, Explanatory note by the Secretary-​ General’, 23 May 2005, UN Doc. A/​59/​2005/​Add.1, para 6. 220 Davies, above n 214. 221 Gaer, above n 217, 110. 222 Alston, above n 14, 207. 223 See, for example, H Charlesworth and E Larking (eds), Human Rights and the Universal Periodic Review:  Rituals and Ritualism (Cambridge:  Cambridge University Press, 2015); A Conte, ‘Reflections and Challenges: Entering into the Second Cycle of the Universal Periodic Review Mechanism’ (2011) 9 New Zealand

224  Rosa Freedman of its first two cycles, UPR has been an effective tool for universal protection and promotion of human rights, but it has also failed to live up to its full potential. The UPR has secured significant attention and engagement from human rights actors, and during the first cycle countries took seriously the reporting requirements as well as the public scrutiny that the review process brings. It has brought together a range of actors to provide information about, question and discuss states’ human rights records, and has produced recommendations for countries as well as generating information useful for actors on the ground. Yet it was perhaps naïve to expect that even a perfect peer review system could combat politicization. Indeed, Arbour and other peer review proponents failed to confront the possibility that the review mechanism itself would be subject to selectivity. The review sessions have frequently been politicized by tactics deployed to shield states from scrutiny, and the UPR modalities enable such tactics to be used. For example, states may choose which questions they acknowledge and answer, are able to rely upon their allies to speak knowing that those countries will deliver positive appraisals rather than targeted questions, and later may determine which recommendations they will and will not accept. Even where countries do accept recommendations, there is no mechanism for monitoring or following-​up on whether they are implemented. As such, the second cycle saw states take their reviews less seriously and engagement with the process was reduced other than for sessions involving the Permanent five members of the Security Council, pariah states, or countries then under the international spotlight. The utility of the UPR for information-​sharing, peer-​support, promoting rights, and engaging all UN members in constructive dialogue about their human rights records, is clear. However, the impact of the reviews depends largely on the willingness of individual states to implement recommendations, thus limiting UPR’s ability to protect rights or even to ensure effective promotion. And while steps have been taken towards follow-​up, with countries now reporting on implementation two years after their reviews, states still can and do fail adequately to ensure that the recommendations accepted have any practical effect on the ground.

(b)  Special sessions The second new mechanism created for the Council aims at fulfilling the body’s protection mandate and enabling the Council to respond swiftly to grave and escalating situations outside. A  main failing of the Commission was that its annual session allowed neither the time nor the dexterity to deal with crisis situations. Special Sessions

Yearbook of International Law, 187–​202; E Dominguez-​Redondo, ‘The Universal Periodic Review: Is There Life Beyond Naming and Shaming in Human Rights Implementation?’ (2012) 4 New Zealand Law Review 673–​706; E R McMahon, K Busia, and M Ascherio, ‘Comparing Peer Reviews: the Universal Periodic Review of the UN Human Rights Council and the African Peer Review Mechanism’ (2013) 12 African and Asian Studies, 266–​89; R Smith, ‘ “To See Themselves as Others See Them”: the Five Permanent Members of the Security Council and the Human Rights Council’s Universal Periodic Review’ (2013) 35 Human Rights Quarterly 1, 1–​32.

The Human Rights Council  225 provides the ability to discuss grave or crisis situations inter-​sessionally and at short notice. They are separate sessions and, because of this, convening Special Sessions enables a quick and focused response without using time and resources that had been allocated for other human rights matters. The mechanism responds to the obvious fact that especially massive and sudden human rights violations may occur outside the Council’s normal calendar and that such a body would marginalize itself if it were not capable of responding in real time to such emerging threats. Special Sessions may focus on any grave or crisis human rights situations, either country-​specific or thematic. The Council’s ability to deal with crises is central to the new body. However, negotiations on Special Sessions were somewhat sidelined in favour of discussions on peer review.224 Resolution 60/​251 mandates that the Council ‘be able to hold special sessions, when needed, at the request of a member of the Council with the support of one third of the membership of the Council’.225 The Council is given the ability ‘to hold special sessions when needed’,226 but is not mandated to convene them. The Resolution does not specify when Special Sessions should be held, but rather it leaves the mechanism open for the Council to interpret and utilise as it sees fit. Special Sessions can be held at the request of one member, but only if one third of Council members support holding the session.227 It was hoped that this requirement would discourage the use of Special Sessions as a political tool, whilst still allowing them to be convened quickly and efficiently where required. Of course, and as we shall see, that was a rather naïve and idealistic expectation. Further modalities were set out in the Institution Building Package228 in paragraphs 121–​8.229 Special Sessions should be convened between two and five days after the request and should not exceed six days. Attendance is open to Council members, concerned states, observers, NGOs, and other specified non-​state parties. Consensus should be sought wherever possible and sessions should be ‘results-​oriented’ with the outcomes able to be monitored and reported on. Although primarily concerned with protecting rights, Special Sessions must also focus on promoting rights through providing long-​term goals to be implemented during and after the sessions. The Council’s ability to deal with crises is central to its mandate. Special Sessions were designed to allow the Council the time and flexibility to convene at short notice in order to meet outside plenary sessions to discuss either country-​specific or thematic crises or grave situations. It was envisaged, particularly by the Global North, that the sessions would focus on thematic issues; and although that has occurred occasionally—​ for example regarding the global financial crisis, the world food crisis or transnational terrorism committed by ISIS—​the mechanism’s potential in that regard has not been exploited. Failures to convene a Special Sessions on irregular migration, bondage of workers in the Gulf, or other similar situations demonstrate that the mechanism is not



224

Ghanea, above n 27, 703. GA Res 60/​251, above n 67, para 10. 226 Ibid. 227 Ibid. 228 See Section 3.6 (below). 229 HRC Res 5/​1, above n 211, paras 121–​8. 225

226  Rosa Freedman being used fully for the purposes that its creators intended. Instead, the vast majority of sessions have been convened about country-​specific situations and while those are also needed it is only half of the mechanism’s mandate and potential. OHCHR staff involved in creating the Council230 foresaw and forewarned Global North states that the mechanism would likely be used instead to target particular country-​specific situations for politicized reasons and that it was likely that the same selectivity and bias that occurred at the Commission would plague the Special session mechanisms. During the Council’s early years it swiftly became apparent that the warnings ought to have been heeded. five of the Council’s first twelve Special Sessions focused on Israel and the Occupied Territories. While that is a grave situation, and while crises arose during that time, the disproportionate attention can be compared with the sole Special Session on Darfur where a genocide was being perpetrated,231 the sole Special Session on the Congo where more than 6 million people had been killed at that time, and the failure to hold any Special Sessions on countries with ongoing grave situations of repression, such as North Korea and Zimbabwe, or of occupation, such as Morocco and Western Sahara or Turkey and Northern Cyprus. Schrijver insists that when the Palestinian plight is considered, Western observations that the Council excessively focuses on Israel is questionable.232 However, owing to similar, if not worse, abuses ongoing elsewhere, Gaer argues that convening three Special Sessions on Israel in the Council’s first six months raised serious concerns about the new body and its members.233 The mechanism has similarly been politicized in the ways that it has and has not been used to respond to the Arab Spring Uprisings. In 2011 and 2012 there were four Special Sessions on Syria, a country expelled by the Arab League, which is no longer protected by most of its former political allies in the MENA region. The situation in Syria and how to address the grave crisis has divided opinion within the Organisation of Islamic Cooperation, so that political bloc did not vote en masse to block scrutiny of its member state. Selectivity, and disproportionate scrutiny of Syria, can be compared with the failure to convene a Special Session on Bahrain, Egypt, Tunisia or Yemen, or even a thematic session on the Arab Spring uprisings generally. Politicization through bias, disproportionate attention and selectivity were always a risk, but the methods for convening a session increased the likelihood of it occurring. Requiring one third of Council members’ support empowers dominant groups and alliances to use this mechanism to achieve political aims because the larger the group, the more easily the one-​third threshold is achieved. Once again, this has manifested

230 Interviews conducted by the author on the basis of anonymity 2012–​2015 (funded by the British Academy). 231 The situation has been identified by many as a genocide, see for example E Sanders, ‘Is the Darfur Bloodshed Genocide? Opinions Differ’, LA Times, 4 May 2009. In July 2010, the International Criminal Court issued a second arrest warrant for Sudan’s President, Omar Al-​Bashir, adding genocide to its original list of charges for crimes allegedly committed in Darfur: International Criminal Court Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, in the case of The Prosecutor v Omar Hassan Ahmad Al Bashir (‘Omar Al Bashir’), 12 July 2010, ICC-​02/​ 05-​01/​09. 232 Schrijver, above n 13, 820. 233 Gaer, above n 217, 135–​6.

The Human Rights Council  227 itself in the mechanism’s use for selective, biased and politicized purposes, such as the vastly disproportionate attention being devoted to Israel and Syria whilst other similar or more egregious situations were given little or no attention. It is only when a state lacks political allies that the spotlight of so many Special Sessions can be shone to illuminate the human rights abuses occurring whilst also deflecting attention away from other similar situations elsewhere. A different form of the politicization of Special Sessions is the way in which countries are shielded from scrutiny at sessions that were convened to scrutinize human rights abuses in those very same states. That tactic has been deployed most notably in the sessions about Darfur and about Sri Lanka. In both of those sessions, allies of those countries used bloc and group politicization tactics to ensure that the scrutiny and action intended for those states were diverted to other actors. In terms of the Special Session on Darfur, states allied with Sudan ensured that attention was focused on non-​ state actors’ role in the conflict and that support, capacity-​building and technical assistance was promised to Sudan’s government. While those states had failed to shield Sudan from the Council’s attention, both in regular and special sessions, they diverted the spotlight away from the government’s abuses and shifted the narrative to one of the government being unable to prevent violations.234 That narrative, of course, is at odds with the vast majority of information and evidence available at that time about the atrocities in Darfur,235 and demonstrates the gross politicization that can and does take place within an intergovernmental forum owing to politics being able to supersede the body’s aims and mandate. Another deeply politicized and ultimately counterproductive session wholly undermined the Council’s mandate to protect and promote rights. The EU called for a Special Session on Sri Lanka in May 2009, a week after the defeat of the Liberation Tigers of Tamil Eelam (LTTE) by government forces and the resulting fears about massacres etc. The government of Sri Lanka issued a joint communiqué together with the UN Secretary-​General in which Sri Lanka reiterated its commitment to protecting and promoting human rights and the UN Secretary-​General emphasized the importance of an accountability process. Not only did the Special Session fail to enforce accountability, the outcome was a ‘deeply flawed’236 resolution237 that put forward the government’s version of events, praised state forces, and pointed the finger only at abuses committed by the LTTE. The resolution passed with twenty-​nine votes in favour, twelve against, and six abstentions. Most states supporting Sri Lanka were its allies from the Asian Group or the Non-​Aligned Movement, who sought to shield it from Council

234 For detailed analysis of the Council’s failures to address the situation in Darfur, and the reasons for those failures, see Freedman, above n 16, Chapter 8. 235 For in-​depth discussion and analysis of those abuses see S Totten, Genocide in Darfur:  Investigating the Atrocities in the Sudan (London: Routledge, 2006); S Hassan and C Ray, Darfur and the Crisis on Governance in Sudan (Ithaca, NY: Cornell University Press, 2009). 236 Human Rights Watch, ‘Sri Lanka: UN Human Rights Council Fails Victims’, 27 May 2009, available at: http://​ www.hrw.org/​news/​2009/​05/​27/​sri-​lanka-​un-​rights-​council-​fails-​victims. 237 HRC Resolution S-​11/​1, ‘Assistance to Sri Lanka in the promotion and protection of human rights’, 27 May 2009.

228  Rosa Freedman action. Human Rights Watch said that Brazil, Cuba, India, and Pakistan led efforts to block a stronger resolution focusing on government abuses. Even more problematically, the resolution sought to entrench the position held by many Global South states that the Council cannot interfere with affairs within a state’s domestic jurisdiction even though human rights violations are not understood in international law to be part of inherently domestic matters and indeed it is anathema to international human rights law to claim that abuses are exclusively part of the internal affairs of a sovereign country. Despite the politicization and selectivity apparent in the use of this mechanism, the sessions have provided a key tool for information-​sharing and shining a spotlight on grave, crisis situations. There has been insufficient use of those materials by other UN bodies, although this is an issue that is being addressed through steps being taken to ensure that Special Session resolutions are passed to the Security Council with the hope of them being used as an early warning system. It is crucial, however, that more thematic issues are discussed within these sessions. The Arab Spring uprisings and the concomitant rights violations, for example, ought to have been addressed by a Special Session. While the session held on Boko Haram238 clearly shows steps forward in terms of thematic issues, there ought also to be others on thematic issues such as migration and the Mediterranean.

5.7 Special procedures Another human rights mechanism that is inextricably linked with the Human Rights Council and its work is the Special Procedures system. The system is bound together with the Council: it is dependent on that body for the creation of mandates, selection of mandate holders, and dissemination of its work. And while Special Procedures may work with any part of the UN, its primary relationship is with the Council. Special Procedures were described by former UN Secretary-​General Kofi Annan as ‘the crown jewel of the [UN human rights] system’.239 It is a key mechanism for protecting and promoting human rights, primarily by investigating and reporting on violations as well as making recommendations. Mandates are created to examine human rights violations on a thematic issue or within a particular country. The universality of the mechanism reflects the Universal Declaration on Human Rights’ universality,240 with human rights protection and promotion occurring across all UN member states, unlike at treaty bodies which only deal with states party to the relevant treaty. The very nature of Special Procedures as a universal mechanism and the working methods of mandate holders mean that the mechanism encroaches upon state sovereignty. As a result, despite support for the system generally there have been many

238 1 April 2015. 239 Secretary-​General Kofi Annan, Time Warner Center (US), 8 December 2006, available at: https://​news.un.org/​ en/​story/​2006/​12/​202592-​annan-​says-​un-​has-​often-​failed-​deliver-​protecting-​and-​promoting-​human-​rights. 240 ‘Universal Declaration of Human Rights’, GA Res 217A (III) (1948).

The Human Rights Council  229 different types of attempts to alter or reign in Special Procedures, as we shall explore in this section. Individuals (Special Rapporteurs or Independent Experts) or Working Groups (comprising one person from each of the five regional groups) undertake fact-​finding, share information, meet with a broad range of stakeholders including victims and NGOs, hold interactive dialogues with the Council, and also may be called upon to address other UN bodies including the General Assembly and the Security Council, and related agencies such as the World Health Organisation. As of 2015 there were fifty-​five mandates, comprising seventy-​four mandate holders. Those mandate holders are experts on human rights, are independent both of the UN and of their own national governments, and undertake their work part-​time, unpaid and for fixed-​term appointments.

(a) Background Special Procedures started as an ad hoc mechanism to respond to grave human rights abuses, and the creation and renewal of mandates remains sufficiently flexible to ensure that it is a key tool for responding to new and emerging issues. In 1967, the Commission created the ‘Working Group of Experts on the situation of human rights in southern Africa’241 and a Special Rapporteur on the politics of apartheid.242 Foreign policy objectives were furthered through these mandates. South African apartheid epitomised racist and colonial human rights abuses, therefore developing nations sought recognition of such violations through a mandate on a grave abuser state. That same year, the Commission was granted the competence ‘to examine information relevant to gross violations of human rights and fundamental freedoms’.243 Those two key events paved the way for the evolution of the system of Special Procedures that by 2015 had grown to fifty-​five mandates on thematic human rights issues or country-​specific situations. At the outset, Special Procedures was viewed as an exceptional mechanism to be used judiciously and only where there was significant political agreement on the need to address country-​specific human rights situations. The second Special Procedures mandate was created in 1969 to investigate the human rights situation in Israel and the Occupied Territories.244 Many of Israel’s critics argue that it, too, commits colonial violations. The mandate was created after the Six Day War245 during which Israel occupied land belonging to surrounding states, including Egypt, Syria and Lebanon and reflected political efforts to ensure that the occupations, the Palestinian cause, and ongoing violations in that region remained in the spotlight. Political agendas similarly

241 UN Commission on Human Rights Resolution 2 (XXIII) of 6 March 1967. 242 UN Commission on Human Rights Resolution 7(XXIII) 16 March 1967. 243 1967 Economic and Social Council Resolution 1235 (XLII). 244 UN Doc E/​CN.4/​RES/​6(XXV) of 4 March 1969. 245 1967 war between Israel and its neighbouring countries, Egypt, Jordan, and Syria supported by states including Algeria, Iraq, Saudi Arabia, and Sudan.

230  Rosa Freedman dominated proceedings to ensure that there were no other country-​specific mandates during Special Procedures’ formative years. As not all countries can be examined at any given time, political agendas have continued to play a leading role in the selection of countries for mandates. It was not until the ‘Working Group on the situation of human rights in Chile’, created in 1975,246 that country-​specific mandates started to be more widely accepted. The mandate on Chile, a country that was in no way as politically isolated as South Africa or Israel, demonstrated the utility of the mechanism as a tool for supporting and enabling states to address human rights violations. Indeed, the General Assembly acknowledged the work of the Working Group on Chile and in 1978 encouraged the Commission to use Special Procedures when dealing with gross violations of human rights.247 The first thematic mandate was created in 1980. It was prompted by the situation in Argentina in relation to enforced or involuntary disappearances, a situation that the Commission was called upon to address.248 Argentina’s government, however, resisted the notion of a country-​specific mandate, not wanting to be singled out for scrutiny of its human rights violations. Using political and diplomatic tactics, the government ensured that there would be insufficient Commission members willing to vote in favour of creating such a mandate. Instead, the Commission created a Working Group to focus on the thematic issue of enforced or involuntary disappearances that occur anywhere in the world. Despite it being clear that the government targeted was Argentina, the Resolution framed the mandate as being universal which made it acceptable to that country. Indeed, Argentina’s resistance emphasized the growing feeling that issue-​ oriented mandates were ‘attractive and politically feasible’ options.249

(b)  Relationship with the Council The competence to create and renew Special Procedures was passed from the Commission to the Council.250 While many changes and reforms have been implemented since the Council’s creation, and despite repeated calls for rationalization, the system has grown and developed both in terms of the number of mandates and in terms of the ways in which it is utilized to protect and promote human rights. The Council was not mandated to adopt the Commission’s system in its entirety, but instead was given the ability to adapt and change aspects of Special Procedures so long as a system was maintained. Special Procedures had long been criticized by states and blocs, particularly decolonized states from the Global South,251 seeking to limit their scope and 246 UN Commission on Human Rights Resolution E/​CN.4/​RES/​8(XXI) 27 February 1975. See also Sub-​ Commission Resolution 8(XXVII) 21 August 1974 and GA Resolution 3219 (XXIX) 6 November 1974. 247 UN GA/​RES/​33/​176 20 December 1978. 248 See ECOSOC Resolution 1979/​38 of 10 May 1979; GA Res 33/​173 of 20 December 1978; Sub-​Commission Resolution 5(XXXII)B of 5 September 1979 (UN Doc E/​CN.4/​1350-​E/​CN.4/​Sub.2/​435). 249 Gutter, above n 28, 98. 250 GA Res 60/​215, above n 68, para 7. 251 See, generally, T Weiss, What’s Wrong with the United Nations and How to Fix It (Polity Press, 2008).

The Human Rights Council  231 independence. The Council’s creation offered an opportunity for those states to pursue that same agenda.252 Some of these states pushed for a complete overhaul of the system,253 while states supportive of a strong and independent Special Procedures system worked to ensure that the system was strengthened and made more effective. The issue of how to appoint mandate holders was always going to be a controversial issue within the reform discussions.254 Alongside independence and expertise, Hampson emphasized the importance of both geographic and gender distribution, eligibility criteria regarding who appoints mandate holders, and the manner in which individuals are selected. States did express some views on geographic distribution, although gender was not discussed during Council proceedings. The main discussions centred on the selection process. Some states advocated direct election of individuals, while others argued that this would result in the system’s politicization. Divergence was particularly apparent between the African Group, NAM, and OIC on the one hand, and WEOG on the other. Indeed, South Africa and Algeria both commented that divergence on the issue of elections would present a North-​South divide.255 WEOG states and their allies256 argued for appointment because ‘election would be political by definition’,257 asserting that ‘politicisation and horse trading’258 should be avoided. They claimed that elections would render geographical and gender balance more difficult. Other states259 argued that elections would bring about ‘democratisation of the UN system’,260 thus giving the fledgling body greater credibility. They asserted that appointment would affect mandate holders’ independence as they would feel ‘indebted’ to the nominating party. Elections were said to have been efficient in the case of treaty bodies, and to provide a potential accountability mechanism for mandate holders.261 Some states, particularly Asian and Latin American countries, suggested a mixed procedure incorporating both appointment and election.262 The compromise was that the selection process would involve member states alongside UN staff.263 It was agreed that the Council appoints mandate holders from candidates nominated by governments, regional groups, international organizations, NGOs, other human rights bodies and individuals. Broad consultations occur, particularly with coordinators of regional groups. States have greater involvement in the process, although ultimately the decision rests with the Council President.

252 Callejon, above n 193, 324. 253 Scannella and Splinter, above n 23, 60. 254 F Hampson, ‘An Overview of the Reform of the UN Human Rights Machinery’ (2001) 7 Human Rights Law Review 1, 20. 255 Oral interventions of Algerian and Saudi Arabian delegates, 3rd Session, 5 December 2006. 256 Including Argentina, Australia, Canada, EU, Japan, Mexico, New Zealand, Republic of Korea (South Korea), Switzerland, UK. 257 Canadian delegate, 3rd Session, 5 December 2006. 258 Austrian delegate, 3rd Session, 5 December 2006. 259 Including African Group, Algeria, China, Democratic People’s Republic of Korea. (North Korea), Iran, Nigeria, Singapore, Sudan, Zimbabwe. 260 Nigerian delegate, 3rd Session, 5 December 2006, informal meeting. 261 Chinese delegate, 5 December 2006. 262 See, for example, Brazilian delegate, 3rd Session, 5 December 2006. 263 Review of Special Procedures, 4th Session, 15 March 2007.

232  Rosa Freedman The OHCHR advertises vacancies and solicits nominations for each available mandate. Selected candidates are then interviewed by the Consultative Group, which consists of five diplomats appointed by the five regional groups. The Group then submits a ranked shortlist of nominees to the President of the Council, who makes a final proposal to the Council. Arguably, this gives too much power to the regional groups, allowing political agendas to be involved in the selection process. While the President appoints the candidates, he or she does so only after the Council’s approval has been received.264 The Consultative Group looks at individuals’ relevant experience and expertise, as well as the general requirements adopted by the Council in 2006,265 especially in relation to qualifications, expertise, recognized competence in international human rights law and availability to carry out their functions.266 Arguably, the most important factor for each candidate is their independence, and the IBP requires the exclusion of any individual who may have a conflict of interest due to their role in Government or other organization, which is an improvement in terms of guaranteeing mandate holders’ independence.267 Discussions on a possible code of conduct for mandate holders demonstrated similar divergence to those on country-​specific mandates and those on selection of mandate holders. The idea of a code of conduct had been discussed informally for a number of years268 and the Council formally endorsed one at the 2nd Session.269 Callejon argues that ‘the concept itself reveals States’ determination to limit mandate-​holders’ remit and action’.270 She notes the pre-​existence of the Special Procedures Manual,271 commenting that a code of conduct was therefore unnecessary. Moreover, Scannella and Splinter argue that proposing a code of conduct can be viewed as states’ attempts to limit the Special Procedures system.272 The OIC, Asian Group, and a number of African states sought adoption of a strict code of conduct.273 Russia, which often sides with the South on issues affecting domestic jurisdiction, argued that clear rules for mandate holders should be developed in an intergovernmental format, with the Special Procedures Manual serving only as one of many sources.274 That position reflected concerns that Special Procedures should be

264 Ibid. 265 ‘Follow-​up to Human Rights Council resolution 5/​1’, 27 September 2007, UN Doc A/​HRC/​DEC/​6/​102, Part II. 266 Ibid. 267 Callejon, above n 193, 326. 268 A document was circulated by the Asian Group, prior to the 61st Session of the Commission in 2005, in which Recommendation 8 deals with a code of conduct, available at the OHCHR extranet at https://​www.ohchr. org/​EN/​pages/​home.aspx. 269 HRC Res 2/​1, ‘Intergovernmental Working Group on the Review of Mandates’, 9 January 2007, para 3. The Resolution was adopted by thirty votes against fifteen with two abstentions. It was supported by all member states belonging to the African Group and almost all Asian states. The following member states voted against: Canada, Czech Republic, Finland, France, Germany, Guatemala, Mexico, the Netherlands, Peru, Poland, Republic of Korea, Romania, Switzerland, Ukraine, and the United Kingdom. Argentina and Uruguay abstained. 270 Callejon, above n 193, 326. 271 Originally adopted in 1999. 272 Scannella and Splinter, above n 23, 59. 273 Second Session, 3 October 2006. 274 Russian delegate, 3rd Session, 5 December 2006.

The Human Rights Council  233 ultimately governed by states rather than independent experts or administrative staff. Western and allied states, however, argued that a code of conduct was unnecessary due to the pre-​existence of a Special Procedures Manual275 covering such matters. The end result is that a Code of Conduct does exist, but in a form that reflects compromise from all countries involved with the discussions. The second aspect of reform discussions focused on the mandates themselves. In 2007, the Council started a year-​long Review, Rationalisation and Improvement process regarding individual mandates. The two main issues were (i) whether to continue with country-​specific mandates and (ii) whether to streamline the many thematic mandates that have been created since 1980. Country-​Specific Mandates were discussed at the newly-​created Council, with a particular focus on whether to abolish them altogether. Despite support for the work done by country-​specific mandate holders,276 there has been a persistent allegation that the selection of countries for such mandates was biased and politicized. That position was argued from different perspectives. China and its allies in the Like Minded Group viewed country-​specific mandates as a neo-​colonial tool used by developed nations to target and oppress developing states.277 The Commission’s mechanism for establishing country-​specific mandates was not formalized nor were substantive criteria set. Farer and Gaer argue that this ad hoc nature resulted in states singled out for a mandate claiming that the selection was politically motivated as, at any given point in time, known human rights abusers escaped such scrutiny.278 While the Commission could not have been expected to establish mandates dealing with every country situation, there were instances where grave violations were ignored while lesser violations scrutinized. Many abuser states were protected from country-​specific mandates by political or regional allies at the Commission.279 The number of country-​specific mandates decreased during the Commission’s final years.280 Scholars attribute this decline to a lack of political will to address country situations, alongside an increased resistance to country-​specific resolutions.281 By the Commission’s end, member states and regional groups constantly blocked country-​ specific resolutions being passed against their allies, which significantly affected the body’s credibility. Although the Council decided to retain country-​specific mandates generally, it did abolish two of the existing ones—​on Cuba and on Belarus—​and this type of mandate remains a politically sensitive and frequently contentious issue. While some countries are willing to engage with such mandate holders, others such as Iran simply refuse to allow their country-​specific mandate holders to conduct formal visits. There are far 275 Available at: https://​www.ohchr.org/​Documents/​HRBodies/​SP/​Manual_​Operations2008.pdf. 276 See, for example, Scannella and Splinter, above n 23, 50. 277 Alston, above n 14, 205–​6. 278 Farer and Gaer, above n 17, 285–​6. 279 See, for example, B Rudolf, ‘The Thematic Rapporteurs and Working Groups of the United Nations Commission on Human Rights’ (2000) Max Planck Yearbook of United Nations Law 4, 293. 280 There were twenty-​six country mandates in 1998 which decreased to thirteen in 2006. 281 See, for example, Gutter, above n 28, 104.

234  Rosa Freedman fewer of these mandates than there are thematic ones, reflecting the difficulties in creating them and in mandate holders carrying out their work when appointed. Thematic mandates allow monitoring of human rights violations by ‘otherwise untouchable governments’282 and also counter the criticism that country-​specific mandates were selective and politicized as thematic mandates did not single out one state, but instead examine a particular right across many countries.283 Indeed, thematic mandates provide the most effective and expedient legal mechanism for the UN to aid victims of human rights violations.284 However, thematic mandate holders cannot examine every country, thus even those mandates were open to criticisms of bias and selectivity in terms of the states they examined. Special Procedures thematic mandates focused almost exclusively on Civil and Political Rights (CPRs) until 1995 when the Commission on Human Rights created a mandate on Toxic Dumping.285 Since then, there has been a movement towards expanding the system to include Economic, Social and Cultural Rights (ESCR) and Third Generation Rights (TGR) adding some twelve ESCR mandates286 and four TGR mandates.287 The first two ESCR mandates were on Extreme Poverty288 and Education,289 both created in 1998. Between 1995 and 2013, five TGR mandates and twelve ESCR mandates have been adopted. In that time there have been four new CPRs as traditionally understood,290 starting with Impunity in 2004.291 There have also been eight mandates,292 starting with Migrants

282 Ibid. 283 Rudolf, above n 279, 290. 284 See, for example, Farer and Gaer, above n 17, 286–​7. 285 The adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, CHR Res 1995/​81 (8 March 1995). 286 Human Rights and Extreme Poverty, CHR Res 1998/​25 (17 April, 1998); Right to Education, CHR Res 1998/​ 33 (17 April 1998); Adequate Housing as a Component of the Right to an Adequate Standard of Living, CHR Res 2000/​9 (17 April 2000); Right to Food, CHR Res 2000/​10 (17 April, 2000); The Effects of Structural Adjustment Policies and Foreign Debt, CHR Res 2000/​82 (26 April 2000); Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, CHR Res 2001/​30 (20 April 2001); Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, CHR Res 2002/​31 (22 April 2002); People of African Descent, CHR Res 2002/​68 (25 April 2002); Human Rights and Transnational Corporations and Other Business Enterprises, CHR Res 2005/​69 (20 April 2005); Human Rights Obligations related to Access to Safe Drinking Water and Sanitation, HRC Res 7/​22 (28 March 2008); Cultural Rights, HRC Res 10/​23 (26 March 2009); The Human Rights of Older Persons, HRC Res 24/​20 (27 September 2013). 287 Right to Development, CHR Res 1998/​72 (22 April 1998); Human Rights and International Solidarity, CHR Res 2005/​55 (20 April 2005); Promotion of a Democratic and Equitable International Order, CHR Res 2005/​57 (20 April 2005); Human Rights Obligations Related to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, HRC Res 19/​10 (22 March 2012). 288 Human Rights and Extreme Poverty, CHR Res 1998/​25 (17 April 1998). 289 Question of the realization in all countries of the economic, social and cultural rights contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and study of special problems which the developing countries face in their efforts to achieve these human rights, CHR Res 1998/​33 (17 April 1998). 290 Set of Principles for the protection and promotion of human rights through action to combat impunity, CHR Res 2004/​72 (21 April 2004); Contemporary forms of slavery including its causes and consequences, HRC Res 6/​ 14 (28 September 2007); Freedom of peaceful assembly and of association, HRC Res 15/​21 (30 September 2010); Promotion of truth, justice, reparation & guarantees on non-​recurrence, HRC Res 18/​6 (29 September 2011). 291 Impunity, CHR Res 2004/​72 (21 April, 2004). 292 Human Rights of Migrants, CHR Res 1999/​44 (27 April 1999); Human Rights Defenders, CHR Res 2000/​ 61 (26 April 2000); Human Rights and Fundamental Freedoms of Indigenous People, CHR Res 2001/​57 (24 April 2001); People of African Descent, CHR Res 2002/​68 (25 April 2002); Trafficking in Persons Especially Women and

The Human Rights Council  235 in 1999,293 where the resolution largely seeks to promote and protect CPRs but only in ­relation to a specific group of people. The main question that the Council sought to address in relation to thematic mandates was whether any could be combined or ended in order to avoid duplication of mandate holders’ work. For example, the mandates on migrants and on human trafficking touch upon some similar issues; the mandates on violence against women and on discrimination against women; and those on international solidarity and on international order. Despite overlap, however, no rationalization of mandates occurred, and since the Council’s creation there has been increasing proliferation of thematic mandates with new ones created every year. The main reason for the expansion of thematic mandates is that they are a crucial tool for protecting, promoting and developing rights, even though of course the system has its problems.

(c)  Protecting, promoting, and developing human rights Special Procedures provide one vehicle for the Council fulfilling its mandate universally to protect, promote and develop human rights. The system provides a method for countries to identify thematic or country-​specific issues that need to be addressed, and then for experts to provide information and recommendations on norm-​creation, norm-​protection, and norm-​enforcement in those areas. The interplay between Special Procedures and the Council ensures that they work together to achieve strong and visible results. Human rights frequently are described as indivisible and universal.294 The role that the Special Procedures system plays strives to underscore those two key characteristics of international human rights. Individual mandates emphasize protecting and promoting rights, and the activities undertaken by mandate holders seek to fulfil those duties. The system increasingly reflects all types of human rights with mandates on a broad range of thematic human rights as well as country-​specific mandates dealing with a range of states that pose different rights problems. The mandate holders are able to report and make recommendations on issues across the globe, ensuring that the system is universal and impacts upon all UN member states. Indeed, that universality provides significant credibility to the system owing to mandate holders’ reports focusing on all regions across the world. The system’s legitimacy as a universal mechanism depends Children, CHR Res 2004/​110 (21 April 2004); Minority Issues, CHR Res 2005/​79 (21 April 2004); Discrimination Against Women in Law and in Practice, HRC Res 15/​23 (1 October 2010); The Human Rights of Older Persons, HRC Res 24/​20 (27 September 2013). 293 Human Rights of Migrants, CHR Res 1999/​44 (27 April 1999). 294 For example, ‘All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms’ (World Conference on Human Rights, 14–​25 June 1993, Vienna Declaration and Programme of Action, UN Doc A/​CONF.157/​23).

236  Rosa Freedman on all types of states being examined on all types of rights in a proportionate and even-​ handed manner. Mandate holders usually undertake two country visits per year, usually individually although there have been joint visits with varying degrees of success. States are strongly encouraged to accept visit requests, and most mandate holders will require countries to allow them free and unfetter access to talk to any relevant stakeholders. Those visits form the basis of their country reports, but their annual reports identify thematic issues and draw upon information from far more countries than the ones visited that year. Resolutions that create or renew mandates frequently are broadly or vaguely framed, giving significant room to mandate holders to direct their own work and activities. As such, there is a lack of uniformity of practice amongst mandate holders and it is clear that the personality and interests of a specific individual shapes the course and direction of the mandate during his/​her tenure and of course this influences the substance of the annual reports and indeed the selection of country visits and reports during that time. As a result different themes are explored by different mandate holders at different times, thus producing a corpus of work from each mandate that identifies best practices and key problems, which is then used by states, intergovernmental bodies, NGOs, and activists in order to strengthen human rights compliance. There are marked differences between countries’ responses to Special Procedures. By and large, Global North states appear to engage well with mandate holders: they allow a disproportionately large number of visits from mandate holders and frequently can be relied upon to accept visit requests.295 That level of engagement remains superior to that of countries from the Global South, many of which reject or ignore such requests.296 However, there has been an increasing tendency on the part of Global North states towards either verbally resisting mandate holders’ reports or paying lip-​service to them but not implementing the recommendations or addressing the concerns raised by those experts. While those are different responses than those of states that refuse to allow mandate holders to visit their territories, they are equally pernicious for individual mandates and for the system as a whole. An obvious reason for any country’s resistance to a mandate holder’s report is that no state wants to have its human rights record scrutinized and criticized in a public forum. Not only are mandate holders’ reports openly accessible, but their findings are also discussed within a very public setting. One of the most effective powers that the Council deploys is holding interactive dialogues with Special Procedures mandate holders. Those interactive dialogues take place after the human rights experts present to the Council their reports on thematic or country-​specific issues. Member states, observers and NGOs join in the discussions with the mandate holder, frequently asking questions or offering peer-​support and advice to the countries concerned. The power to hold such dialogues enables information-​ sharing in terms of the mandate holders’ reports, findings, recommendations, and 295 The statistics on country visits undertaken by mandate holders since 1998 are available on the OHCHR website at: https://​www.ohchr.org/​EN/​HRBodies/​SP/​Pages/​CountryandothervisitsSP.aspx. 296 Ibid.

The Human Rights Council  237 best practices, and also constructive engagement with how human rights may be better protected and promoted. States take seriously these dialogues, particularly the countries that are reported on by the mandate holders, and they are a crucial tool for ensuring effective attention is paid to the issues raised by those experts. As such, Special Procedures has become a crucial tool for ensuring that a light is shone on human rights issues around the world.

5.8 Concluding observations Resolution 60/​251 mandated that the Council conduct a five-​year internal review. From 25 October 2010 to 24 February 2011, states, UN staff, civil society organizations, and other stakeholders undertook or were involved with that review. From the outset the process was hampered by the OIC and NAM insisting that the review would not have the power to alter or amend the IBP unless consensus was reached to that effect. Countries from NAM, led by Russia and China, were reluctant even to consider reform proposals or initiatives for meaningful change despite many being tabled by countries from GRULAC and WEOG in particular. No major reforms were implemented, which led Human Rights Watch, amongst others, to assert that the review ‘was a missed opportunity ‘. The Council adopted the outcome of the review in March 2011. There were few changes, despite the review process highlighting areas of concern such as membership and elections, the Council’s ability to respond to crises, and its relationship with other UN bodies—​the same concerns that had marred the Commission. Reforms implemented included changes to the UPR cycle length, the ways in which speakers sign up to the list, the participation of and NHRIs in sessions, all of which were far from some of the major and radical proposals tabled. The US disassociated itself from the document, expressing concern that with the Council’s agenda remained politicized particularly regarding Item 7 on Israel and the Occupied Palestinian and Arab Territories. Other countries from across regional groups were displeased with the outcome but supported its adoption. Yet the review was seen by some as a success because it did not undermine the Council, which itself is a strong indictment of the body in terms of the low expectations held by many observers. Since the review process, the Council has continued to grow and develop organically. The body has the potential to promote and mainstream rights in a meaningful and thorough way, but only if there is a continued building of links and channels between it and the broader UN system. The protection mandate will always require its work to be taken up by member states and by other UN bodies in order for action to be taken. Despite, or perhaps because of, its prominent and varied role, the Council receives significant criticism both internally and externally. Many of those criticisms, however, result from judging the body against standards that it is neither able nor required to fulfil. Critics say, for example, that the Council ought to be less political, and yet the

238  Rosa Freedman body’s membership is made up of state delegates thus making it political by its very nature. Others point to the body’s failures to take direct action to protect individuals from egregious abuses, yet fail to acknowledge that the Council has no binding powers to take such actions. Many, albeit certainly not all, criticisms stem from a lack of understanding of the Human Rights Council and a failure to appreciate the strong successes that it has achieved. The Council commendably has steadily improved and increased its credibility and legitimacy particularly given its rocky beginning and the politics and politicization that will always be present within an intergovernmental body tasked with a contentious and charged mandate.

6 A Critical Appraisal of the Human Rights Council Advisory Committee Laurence Boisson de Chazournes and Andrzej Gadkowski

6.1  Establishment and Mandate of the Human Rights Council Advisory Committee (a)  The creation of the Advisory Committee In 2006, after sixty years of its existence, the Commission on Human Rights—​the principal human rights body in the UN system—​was replaced by the Human Rights Council. This shift from the Commission, which was established as the ECOSOC subsidiary organ responsible for the promotion and protection of human rights,1 to the Human Rights Council, which was established as a subsidiary organ of the General Assembly to improve the protection and promotion of human rights and described as a ‘quiet revolution in human rights’,2 resulted in widespread transformations. One such transformation was the creation of the Human Rights Council Advisory Committee in lieu of the Commission’s subsidiary body—​the Sub-​Commission on the Protection of Human Rights. The Sub-​Commission was the main subsidiary body of the Commission, created initially to recommend standards to be adopted in the field of prevention of discrimination and protection of minorities.3 Over the years, the mandate and functions of the Sub-​Commission have expanded considerably, either at the request of the Commission and ECOSOC, or on its own initiative.4 It became a body of the Commission on Human Rights, to which, as stated by A Eide ‘the Commission has come to turn for tasks far beyond its original terms of reference’.5 Undoubtedly, by the very virtue of its 1 The Commission was created in 1946 in application of the ECOSOC Resolution, E/​RES/​5 (I). 2 Statement by High Commissioner for Human Rights to the last meeting of Commission on Human Rights, 27 March 2006, available at:  http://​www.ohchr.org/​en/​NewsEvents/​Pages/​DisplayNews.aspx?NewsID=3040& LangID=E. 3 The Sub-​Commission was initially created as the Sub-​Commission on Prevention of Discrimination and Protection of Minorities. It was only in July 1999 that, based on the ECOSOC decision 1999/​256 (Rationalisation of the work of the Commission on Human Rights), it was renamed the Sub-​Commission on the Promotion and Protection of Human Rights, see E/​1999/​INF2/​Add.2, 172. 4 See A Eide, ‘The Sub-​Commission on Prevention of Discrimination and Protection of Minorities’ in P Alston (ed), The United Nations and Human Rights (Oxford University Press, 1992), 212. 5 Ibid, 213. The author gives examples of other Sub-​Commissions—​on the rights of women and the freedom of information and the press, which were either cancelled (the Sub-​Commission on the Freedom of Information and the Press), or transformed into a commission (Commission on the Status of Women).

240  Laurence Boisson de Chazournes and Andrzej Gadkowski function as an expert body, the Sub-​Commission served as a think-​tank for its parent body preparing a number of human rights standards adopted by the Commission. Over the decades it produced many landmark documents, some of them drafted at its own initiative.6 The new expert body—​the Advisory Committee—​was created under the Council’s institution-​building resolution with the aim of providing expert advice to the Council.7 The General Assembly resolution 60/​251, establishing the Human Rights Council and adopted on 15 March 2006, had provided that the Council should ‘maintain a system of . . . expert advice’ leaving open the question of the form of such a body.8 The profile and composition of the Committee was subject to some debate9 and several options were considered, ranging from a permanent structure that would meet on a regular basis to a less formal structure, such as an ad hoc roster of experts.10 Ultimately, it was decided that the body should have a formal structure and comprise eighteen independent experts who would meet twice a year for a maximum of ten working days per year. The resolution establishing the Committee also addresses such issues as the nomination of candidates and election of the Committee members as well as the functions of the Committee and its methods of work.11

(b)  Mandate and functions of the Committee The Committee is mandated to ‘function as a think-​tank for the Council and work at its direction’.12 The idea behind its creation was that this body would analyse issues and problems at the Council’s request, provide expert advice and make recommendations to the Council.13 The Committee’s focus is mainly on studies and research-​based advice14 and it is designed to be implementation-​oriented.15 As a result, its margin of manoeuvre and scope of advice are limited to themes pertaining to the Council’s mandate and choice. Even though the Committee is not entitled to adopt resolutions or decisions on human rights matters of its own initiative, it can propose to the Council, and for the 6 See, for example, The International Convention for the Protection of All Persons from Enforced Disappearance, the UN Declaration on Human Rights Defenders, or the UN Declaration on the Rights of Indigenous People. 7 Human Rights Council Resolution 5/​1 Institution-​building of the United Nations Human Rights Council [hereinafter A/​HRC/​RES/​5/​1 or Institution-​building resolution]. 8 A/​RES/​60/​251, Article 6. For a detailed discussion on this topic, see, for example, (2007) 65 Human Rights Monitor  20–​2. 9 Certain states were even opposed to its creation. 10 M Abraham, Building the New Human Rights Council: Outcome and Analysis of the Institution Building Year (Friedrich-​Ebert-​Stiftung, Geneva, 2007) 16. 11 Ibid, paras 65–​84. 12 A/​HRC/​RES/​5/​1, para  65. 13 Commonly, think-​tanks are defined as institutions organized for intensive research, solving problems and planning further developments. In this sense, the Committee matches this definition as it gathers reflections on a given topic and suggests to the Council the improvements that can be made in a specific field of human rights protection. 14 A/​HRC/​RES/​5/​1, para  75. 15 Ibid, para 76.

The Human Rights Council Advisory Committee  241 latter’s consideration and approval, ‘suggestions for further enhancing its procedural efficiency, as well as further research proposals within the scope of the work set by the Council’.16 New mandates for thematic research require approval by the Council, which has full discretion in this regard.17 Since its inception, the Committee has developed a practice of suggesting topics to the Human Rights Council by way of research proposals.18 The Council has acted upon some of the themes included in these proposals by requesting the Committee to conduct relevant studies.19 Recently, the Advisory Committee has carried out studies, inter alia, on vulture funds and unaccompanied migrant children, two themes that were first proposed by the Committee and approved by the Council. The Committee was also mandated to undertake a study on leprosy-​related discrimination. This topic had already been considered by the Advisory Committee and resulted in a report containing a draft set of principles and guidelines for the elimination of discrimination against persons affected by leprosy and their family members.20 After a few years, the Human Rights Council asked the Committee to provide expert advice on the effectiveness of the implementation of these principles.21 This practice of the re-​conferring of a mandate to the Advisory Committee is to be welcomed. It gives the Advisory Committee the possibility of being involved in the follow-​up of the outcomes of a previous study to the Human Rights Council. As noted by K Obata, one of the members of the Advisory Committee, ‘the Committee has a legitimate interest in observing the results and actual status of topics previously studied by itself ’.22 Proposals made by the Committee which were not followed by the Council include issues such as a new model law on equal opportunities and non-​discrimination—​a ­proposal made at the ninth session of the Advisory Committee,23 or on the impact of settler colonialism on human rights, whistleblowing and human rights as well as preserving international watercourses to protect the rights to life and food.24

16 A/​HRC/​RES/​5/​1, para  77. 17 Ibid, paras 75 and 77. 18 For example, Action 13/​7 and Annex IV to the Report of the Advisory Committee on its thirteenth session (2014) included research proposals, for consideration and approval by the Council, on the following subjects: the impact of settler colonialism on human rights; whistleblowing and human rights; activities of vulture funds and human rights; preserving international water courses to protect the right to life and food; unaccompanied child migration and human rights; the possibility of establishing a universal human rights court; citizen’s security and human rights; and youth and human rights; see A/​HCR/​AC/​13/​2, 7, 21–​3. 19 These themes include, inter alia, the right to peace, discrimination in the context of the right to food, rights of peasants and rural women, corruption, human rights in post-​disaster and post-​conflict situations, local government. 20 See Report of the Advisory Committee on its fifth session, A/​HRC/​AC/​5/​L.3, Principles and guidelines for the elimination of discrimination against persons affected by leprosy and their family members. The draft set of principles and guidelines was prepared by Special Rapporteur S Sakamoto. For more on the topic of leprosy-​related discrimination, see further in this article in the section addressing recent mandates. 21 Human Rights Council resolution 29/​5 adopted on 2 July 2015, see A/​HRC/​RES/​29/​L.10. 22 K Obata, Preliminary Draft Report on Possible Thematic Gap with the Human Rights Council, 7 (presented at the 8th Meeting of the Advisory Committee on 13 August 2015). 23 Proposals made at the twelfth session, see A/​HRC/​AC/​9/​6, 3, 27–​8. 24 See report of the Advisory Committee on its thirteenth session, A/​HRC/​AC/​13/​2, 21–​3.

242  Laurence Boisson de Chazournes and Andrzej Gadkowski

(c)  Change and continuity with the Sub-​Commission The Advisory Committee, following the path of the Sub-​Commission on the Protection of Human Rights, intends to play an important role in providing expert advice. However, in contrast to the Sub-​Commission, the scope of the Committee’s mandate is more restrictive. Indeed the Committee enjoys less freedom of action compared to its predecessor. As emphasized by G Sweeney and Y Saito, currently ‘virtually all aspects of the work of the [Committee] require the prior authorisation of, if not an explicit request from, its parental body’.25 Without doubt, the prohibition on adopting resolutions or decisions must be judged as a considerable step back in comparison to the mandate given to the Sub-​Commission. The latter was empowered to adopt thematic resolutions and, until 2000, country-​ specific resolutions out of its own initiative. According to some, the Committee’s lack of authority to independently adopt resolutions and decisions ‘undermines and arguably marginalises both the scope and the impact of the Advisory Committee’s work’.26 Furthermore, the scope of the Committee’s advice is limited only to thematic issues ‘pertaining to the mandate of the Council’.27 This drawback, together with the absence of any power to initiate its own studies, is considered by some as inhibiting the creative discretion that was demonstrated by the Sub-​Commission. It allowed it to generate ideas and proposals to the Commission on Human Rights and to play a significant role in the evolution of human rights more generally. Nevertheless, the functioning of the Sub-​Commission and its relationship with the parental body caused some controversy, which may explain the politics of granting to the Committee less autonomy than to its predecessor. A Eide emphasises the fact that the Sub-​Commission was criticized by the members of the Commission for going beyond its mandate, for acting independently rather than as a subsidiary body.28 Moreover, the Sub-​Commission was criticized for becoming too politicized.29 These controversies, together with the expansion of activities of the Human Rights Council, may explain granting less autonomy to the Committee. There are, however, other perspectives that can be highlighted. The assessment and comparison of the functions and scope of mandates of both the Committee and the Sub-​Commission need to take into account the relationship between the Committee and the Council, which is different from that between the Sub-​Commission and the Commission on Human Rights. As pointed out by K Obata, this perspective reveals that there is less overlap between the respective activities of the Committee and the 25 G Sweeney and Y Saito, ‘An NGO Assessment of the New Mechanisms of the New UN Human Rights Council’ (2009) 9 Human Rights Law Review 2, 220. 26 V Chetail, ‘The Human Rights Council and the Challenges of the United Nations System on Human Rights: Towards a Cultural Revolution?’ in L Boisson de Chazournes and M Kohen (eds), International Law and the Quest for its Implementation. Liber Amicorum Prof. Vera Gowlland-​Debbas (Brill, 2010) 221. 27 A/​HRC/​RES/​5/​1, para  76. 28 Eide, above n 4, 255. 29 Ibid.

The Human Rights Council Advisory Committee  243 Council in the field of thematic research.30 As a reminder, the Human Rights Council was granted a broader mandate than the one of the Human Rights Commission. It has then developed a wide array of activities and resorted to various mechanisms and tools to conduct them.

6.2  Membership of the Committee (a)  Nomination and election In comparison to the former Sub-​Commission, the Advisory Committee has a reduced membership, from twenty-​ six to eighteen experts. The Human Rights Council’s Institution-​building resolution provides for three, rather general, requirements for the appointment of candidates to the Advisory Committee. According to its Article 67, the members of the Committee are selected based on their recognized competence and experience in the field of human rights and their high moral standing, as well as their independence and impartiality. These general criteria were developed by the Council in Decision 6/​102 entitled Follow-​up to Human Rights Council resolution 5/​1. The eligibility criteria concerning the competence and experience of candidates for the Advisory Committee were expanded and cover: [a]‌cademic studies in the field of human rights or related areas, and/​or experience and exposure to leadership roles in the human rights field at the national, regional or international levels; substantial experience (at least five years) and personal contributions in the field of human rights; knowledge of the United Nations system and of institutional mandates and policies related to the work in the area of human rights, as well as knowledge of international human rights instruments, norms and disciplines, familiarity with different legal systems and civilizations will be preferable; proficiency in at least one official language of the United Nations; availability of time to fulfil the work of the Advisory Committee in an effective manner, both to attend its sessions and to carry out mandated activities between sessions’.

The criteria of independence and impartiality are not further specified, albeit the requirement that candidates holding decision-​making positions in governments or any other organizations which may potentially cause a conflict of interest are excluded from the nomination. Finally, candidates to the Committee are covered by the principle of the non-​accumulation of human rights functions. The selection procedure for the eighteen independent experts is composed of two stages. The first stage is the nomination phase during which all member states of the United Nations propose or endorse candidates from their respective regions. To ensure the transparency of the nomination procedure and the nomination of the best possible

30 Obata, above n 22, 2.

244  Laurence Boisson de Chazournes and Andrzej Gadkowski candidates, states should consult national human rights institutions and civil society organizations. The second stage of the selection procedure is in the hands of the Council itself, which elects the members of the Committee by a secret ballot. In addition to the above-​mentioned requirements, when electing the members of the Committee, the Council should give particular consideration to the ‘gender balance and appropriate representation of different civilizations and legal systems’.31 The members of the Committee—​who are experts from different professional backgrounds and represent the various regions of the world—​are elected for a period of three years and are eligible for re-​election only once. They are normally elected at the September session of the Human Rights Council and their mandates start on 1 October of the year of election. Undoubtedly, the selection procedure for the candidates to the Committee is to be commended in certain ways. It is seen as transparent, since the nomination of the candidates requires the consultation of human rights institutions, and it encourages the renewal of the Committee’s membership since only one re-​election is possible. Moreover, the above-​mentioned instruments dealing with the nomination process are explicit about the required competence and experience of potential candidates. This said, the selection procedure is not beyond criticism. First, the election of members on an individual basis is not conducive to cultivating diversity nor does it lend itself to encouraging a wide range of expertise that may be essential for the Committee as a whole. This issue could be solved by electing members as a group and not individually, while taking into consideration the various experience and competence of the candidates in different areas of human rights protection. Second, the wording of the technical and objective requirements for the submission of candidatures can be perceived as rather general in nature and not particularly demanding.32 These requirements could be refined in such a way so as to remove any concerns over the competences and experience of the members of the Committee. The selection procedure presents other weaknesses. Despite the explicit provision in resolution 5/​1 that the Council shall give ‘due consideration to gender balance’, in practice only one-​third of the Committee members are women.33 Another one is that the groups of states have followed a practice of nominating a number of candidates that is equal to the number of vacant seats in the Advisory Committee. As a consequence, there is usually no need for a discussion as there is no choice among candidates presented by each regional group and the new members of the Committee are elected by acclamation.34 31 Institution-​building resolution, Article 72. 32 To some, these criteria do not require any special knowledge in the field of human rights, see K Kemileva, B Lee, C Mahon, and Ch Sidoti (with the participation of Professor Andrew Clapham), Expertise in the Human Rights Council. A policy paper prepared under the auspices of the Geneva Academy of International humanitarian law and Human Rights (Geneva, 2010) 24. In order to ensure a full range of human rights expertise within the Advisory Committee, the authors propose that the eligibility criteria for members be extended to include, inter alia, specialist expertise in different areas of international human rights law, forensic and investigative expertise, or expert knowledge of and experience in human rights situations in various countries. 33 As of September 2016. It should be noted that the first composition of the Advisory Committee included, among eighteen members, only four women. 34 See Sweeney and Saito, above n 25, 220.

The Human Rights Council Advisory Committee  245

(b)  Expertise profile As a rule, the nominees and the selected members must demonstrate competence and experience in the field of human rights. In practice, this experience ranges from judicial and diplomatic work to academic activity. Some members hold academic positions at universities and work as professors or lecturers, particularly in the field of international human rights, public international law, or criminal law. Some were previously members of human rights committees as well as of the Sub-​Commission on the Promotion and Protection of Human Rights. Some other members of the Advisory Committee gained experience in the field of human rights while working for non-​governmental organizations or national human rights institutions. Others have worked as diplomats, members of governmental delegations to the UN, or international civil servants. As mentioned, the nomination requirements are not particularly demanding. More attention should be placed on substantial knowledge and experience in the field of human rights in order to ensure that the Committee can work as a think tank. Additionally, legal expertise is relatively predominant and the importance of other social disciplines should not be forgotten.

(c)  Geographical distribution In addition to the above conditions for the nomination and election of members of the Committee, another factor, namely geographic representation, has to be taken into account. There are five members from the group of African States, five from the group of Asian States, three members from the group of Latin American and Caribbean States, three from the group of Western European and other States, and two members form Eastern European States. As aptly noted by M Spohr, the distribution of seats within the Advisory Committee ‘displays the overall UN membership which constitutes a decreased influence of Western States compared to the former Sub-​Commission’.35

6.3 Internal functioning The Advisory Committee is chaired by a Chairperson elected from among its members for a period of one year.36 The Chairperson, together with four Vice-​Chairpersons, including one who is also the Rapporteur, constitute the Bureau of the Committee tasked with procedural and organizational matters. The effective performance of the functions 35 The author illustrates his statement by comparing the distribution of seats within the Committee to that within the Sub-​Commission for each group of states; see M Spohr, ‘United Nations Human Rights Council. Between institution-​building and review of status’ in A von Bogdandy and R Wolfrum (eds), (2010) Max Planck Yearbook of United Nations Law 14, 188. 36 A/​HRC/​AC/​3/​2 Annex III. Rules of procedure of the Human Rights Council Advisory Committee, rule 5.

246  Laurence Boisson de Chazournes and Andrzej Gadkowski entrusted to the Committee is facilitated by the Secretariat provided by the Office of the United Nations High Commissioner for Human Rights (UNHCHR). The Committee convenes up to two sessions, held at the United Nations Office in Geneva in February and in August, for a maximum of ten working days per year. However, it is possible for the Committee to hold additional sessions or meetings if requested by one-​third of its members and if approved by the Council.37 To date, this possibility has never materialized, and it seems unlikely that such a situation may happen. The main function of the Committee is the preparation of studies at the request of the Council. When mandated for particular thematic work, the Committee usually forms drafting groups with its members from the different regional groups.38 In practice, the preparation of a report within a particular drafting group is the result of the work conducted not only during the sessions but also throughout the year. A series of face-​to-​face meetings are held during the Committee’s sessions, while in between sessions the work of members of the drafting group continues on the extranet platform provided by the Secretariat. The drafting groups present reports and studies for successive rounds of discussion and revision by the Committee, and these documents take the form of preliminary reports and progress reports. Once agreed, the final report is submitted for the Council’s consideration and approval. While working on a particular topic, the drafting groups seek comments and advice from various stakeholders, such as states, civil society entities, non-​governmental organizations and national human rights institutions. NGOs having consultative status with the United Nations Economic and Social Council as well as national human rights institutions and states representatives may participate in the deliberations of the Committee at its sessions. The importance of holding consultations with different stakeholders was recognized, in 2015, with a proposal made by the Committee to establish a virtual platform ‘to have fluid and frequent exchange with NGOs in the field of human rights and to receive input from them in relation to the work of the Committee’.39 At its fourteenth session, the Committee also decided to prepare reflection papers produced for the Committee’s own use at every session, which may be published as part of a reflection papers series on the website of the Advisory Committee. As an example, at its fifteenth session, the Committee considered five reflection papers on the topics of whistle-​blowing and human rights in the context of corruption, climate-​induced displacement and human rights, mainstreaming human rights in the post-​2015 development agenda, regional human rights regimes, and global grievance forum for perceived defamation of religion.40 37 Ibid, rule 12. 38 The Committee may also entrust an individual member with the task of preparing a particular study. 39 See action taken by the Advisory Committee at the fourteenth session, 14/​4 Review of methods of work, A/​ HRC/​AC/​14/​2. 40 See A/​HRC/​AC/​15/​2, Report of the Advisory Committee on its fifteenth session, 9.  At the same session, the Committee requested the preparation of new reflection papers on the issues of the impact of settler colonialism of human rights; the non-​material approach to social rights in the framework of sustainable development; youth and human rights: contribution to social cohesion; and improving the impact of the Human Rights

The Human Rights Council Advisory Committee  247 By being open to exchange with national human rights institutions, initiatives such as reflection papers, and also, most importantly, its practice of suggesting topics to the Human Rights Council by way of research proposals, the Committee aims to identify and highlight areas of human rights that require particular attention. It underscores topics that should be developed and points to deficiencies in the system of international human rights protection. By doing so, it plays a particular role as an ‘epistemic community and agenda-​setter, giving [it] the power to recommend which human rights issues should be prioritised over others and which agendas and resolutions should be adopted’.41

6.4  Overview of the Committee’s thematic work (a)  Recent mandates Recently, the Advisory Committee has been mandated to provide expertise with respect to three topics: the activities of vulture funds, leprosy-​related discrimination, and the issue of unaccompanied children and adolescents.42 The mandate to prepare a research-​based report on the activities of vulture funds and the impact on human rights was given to the Committee by the Council’s resolution 27/​30 of 23 September 2014.43 In the preparation of the report, the Committee was requested to seek the views and inputs of different stakeholders, i.e. member states, United Nations agencies, relevant international organizations, the UNHCHR and relevant special procedures, including the Independent Expert.44 In order to achieve this aim a drafting group of five members of the Committee was created and a questionnaire was disseminated to various stakeholders by the Committee. A draft progress report, presented at the sixteenth session of the Committee by J Ziegler, Rapporteur of the drafting group, attempted to determine the extent to which the activities of vulture funds may hinder the State’s capacity to fulfill its human rights obligations. In identifying the actions that can be taken to mitigate the negative effects in terms of human rights fulfilment, the draft report enunciates principles applicable to states and

Council: efficiency-​efficacy-​implementation-​follow-​up, some of which will be presented and discussed at the sixteenth session of the Committee, see ibid, 5–​6. 41 C Soh, Y Kim, and H Kim, ‘The Human Rights Council Advisory Committee’s Contribution to Global Human Rights’ (2015) 46 Korea Observer 1, 2. 42 It should be remembered that in pursuing research on thematic issues, the Advisory Committee has to give appropriate consideration to the promotion of a democratic and equitable international order, ensure a balanced gender perspective and ensure that the interests of persons with disabilities are adequately represented. Discussions on the integration of these standing items into the Committee’s mandates have taken place, in particular during the second, fourth and tenth sessions of the Committee. 43 A/​HRC/​27/​30, Effects of foreign debt and other related international financial obligations of states on the full enjoyment of all human rights, particularly economic, social and cultural rights: the activities of vulture funds. In para 4 of the resolution, the Council ‘requests the Advisory Committee to prepare a research-​based report on the vulture funds and the impact on human rights’. 44 Ibid, para 5.

248  Laurence Boisson de Chazournes and Andrzej Gadkowski principles applicable to vulture funds.45 The final report was presented to the Human Rights Council in September 2016. The mandate given to the Committee on the elimination of discrimination against persons affected by leprosy constitutes, as earlier noted, a follow-​up of a topic previously studied by the Committee. The outcome of the study, which was commissioned in 2008, took the form of the draft set of principles and guidelines for the elimination of discrimination against persons affected by leprosy and their family members, a report submitted in 2010 by the Committee.46 The draft set of principles was subsequently endorsed by the Human Rights Council47 and the General Assembly.48 Still, both organs only took ‘note with appreciation of the principles and guidelines for the elimination of discrimination against persons affected by leprosy and their family members’. At its twenty-​ninth session in June 2015, the Human Rights Council adopted Resolution 29/​5 in which the Council requested the Advisory Committee to undertake a study to review the implementation of the principles and guidelines together with the obstacles thereto.49 The Committee was tasked with submitting a report ‘containing practical suggestions for the wider dissemination and more effective implementation of the principles and guidelines’.50 At the fifteenth session of the Committee, a drafting group on the topic was established.51 It submitted a preliminary report in 2016, with a view to submitting the final report to the Council the following year.52 The Advisory Committee has been asked to take into account the views of different stakeholders. Various actors and institutions have sent responses to the questionnaire distributed by the Committee. They mainly include associations of persons affected by leprosy and their family members as well as international NGOs working closely with them.53 The special rapporteur, I Yigezu, highlighted a serious lack of effectiveness in the implementation of the principles and guidelines for the elimination of discrimination against persons affected by leprosy and their family members due, among other factors, to little or no coordination at the national level to follow-​up and monitor the implementation of the principles and guidelines. Moreover, discriminatory laws, policies and practices still exist, which stigmatize and discriminate against persons affected by leprosy. Some preliminary recommendations were proposed including, inter alia, strengthening and promoting awareness of the principles and guidelines, the revision of discriminatory 45 A/​HRC/​AC/​16/​CRP.1. 46 A/​HRC/​15/​30. It should be noted that the predecessor of the Advisory Committee also addressed the issue of the discrimination against leprosy-​affected persons. At its fifty-​sixth session, the Sub-​Commission requested one of its members, Y Yokota, to prepare a preliminary working paper on this topic (see E/​CN.4Sub.2/​RES/​2004/​ 11). The work was, however, interrupted due to the reform of the UN’s human rights system and the shift from the Commission on Human Rights to the Human Rights Council. 47 A/​HRC/​RES/​15/​10. 48 A/​RES/​65/​215. 49 A/​HRC/​29/​5. 50 Ibid, para 2. 51 Initially the drafting group was composed of eight members—​Ms Boisson de Chazournes, Ms Carciunean, Mr Coriolano, Mr Obata, Mr Soofi, Mr Soh, Mr Yigezu, and Mr Zhang. Mr Okafor joined the drafting group subsequently. 52 A/​HRC/​AC/​16/​CRP.2. 53 Most of the responses were received from the NGOs (30). In addition, eight States and seven national human rights institutions have responded to the questionnaire.

The Human Rights Council Advisory Committee  249 laws and practices by governments, as well as the designation of appropriate entities at the national level to monitor the effective implementation of the principles and guidelines. Moreover, the members of the Committee discussed the possibility of the establishment of a dedicated mechanism at the international level to monitor and report on the effective implementation of the principles and guidelines. The third mandate of the Committee, recently under discussion, addressed the problem of unaccompanied migrant children and adolescents. The Human Rights Council, in its resolution 29/​12, requested the Committee to ‘develop a research-​based study on the global issue of unaccompanied migrant children and adolescents and human rights’.54 This is a highly topical issue, which is being discussed in particular in Europe, given the current and extraordinary inflow of refugees.55 As reported by UNICEF, 60 million people were forced from their homes in 2014, and half of this number were children. Nearly 232 million people had to live outside their native land, including 35  million children who did not have an accompanying adult.56 At its fifteenth session, the Advisory Committee established a drafting group composed of eight experts tasked with the preparation of the study.57 The Final report, submitted to the Council in 2017, benefited from answers to a questionnaire which was sent to a wide array of stakeholders. The report provided information about the issue, identifying areas, reasons and cases where this issue arised, identified how human rights are threatened and violated and made recommendations.58 It should be noted that other human rights treaty bodies are also active in this field. For example, the Committee on the Rights of the Child (CRC) and the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) have decided to develop a Joint General Comment on the human rights of children in the context of international migration.59 It is hoped that the Advisory Committee can work closely with these bodies. Finally, in 2016, the Advisory Committee has been mandated to conduct a comprehensive research-​based study on the topics of the negative impact of the non-​ repatriation of funds of illicit origin to the countries of origin on the enjoyment of human rights, and the importance of improving international cooperation (illicit funds)60 and regional arrangements for the promotion and protection of human

54 A/​HRC/​29/​12, para  4. 55 As presented in the Draft progress report on the global issue of unaccompanied migrant children and adolescents and human rights, and based on the EUROSTAT Asylum statistics, 200’000 children applied for asylum in European Union countries in the first nine months of 2015; see A/​HRC/​AC/​16/​CRP.3.). 56 See UNICEF. Protecting Children in the Move, November 2015, as well as A/​HRC/​AC/​16/​CRP.3. 57 The drafting group on the global issue of unaccompanied migrant children and adolescents and human rights was composed of Mr Corioliano, Ms Craciunean, Ms Elsadda, Ms Hanania de Varela, Mr Okafor, Ms Pabel, Ms Reyes Prado, and Mr Soh. 58 A/​HRC/​AC/​16/​CRP.3. 59 See CMW-​ CRC Joint General Comment on the Human Rights of Children in the Context of International Migration. Concept note, available at:  http://​www.ohchr.org/​EN/​HRBodies/​CMW/​Pages/​ JointGeneralCommentonChildren.aspx (consulted on 9 September 2016). 60 A/​HRC/​RES/​31/​22.

250  Laurence Boisson de Chazournes and Andrzej Gadkowski rights.61 The reports on these topics were presented to the Council at its sessions respectively in September 2017 and September 2018.

(b)  Previous mandates and achievements Aside from this thematic research, the Advisory Committee has to date been mandated by the Council to prepare fourteen areas of thematic research.62 The outcome of these mandates varies. Some resulted in the appointment of an Expert or a Working Group by the Council and led to the adoption of a Declaration by the General Assembly. Others resulted in guidelines and principles. Despite being accepted with appreciation, the latter instruments may not always receive sufficient attention. One of the first mandates of the Committee—​ Human rights education and training—​resulted in adoption in 2011 by the General Assembly of the United Nations Declaration on Human Rights Education and Training.63 The draft of the declaration was elaborated by the Committee on the basis of the Council’s request formulated in resolution A/​HRC/​6/​10. The draft text of the declaration prepared by the Committee was submitted to the Council and subsequently elaborated by an open-​ended intergovernmental working group established by the Council. In the same vein, the draft declaration on the right of people to peace, elaborated by the Committee upon the request of the Human rights Council64 resulted in the adoption, in 2016, by the General Assembly of the UN Declaration on the Right to Peace.65 The study on human rights of persons living with albinism had a different outcome. It was based on the 2013 Council resolution 24/​33. During its work on the topic, the drafting group received inputs from various stakeholders, such as states, national human rights institutions, and non-​governmental organizations. The study resulted in the establishment of a special procedure mechanism. Based on resolution 28/​6 of the Human Rights Council, an Independent Expert on the enjoyment of human rights of persons with albinism was appointed in 2015. In the same vein, one of the outcomes of the Advisory Committee’s study on unilateral coercive measures was the appointment by the Human Rights Council of a Special Rapporteur on the negative impact of the unilateral coercive measures on the enjoyment of human rights.66

61 A/​HRC/​RES/​32/​115. 62 These were the mandates on:  Human rights and education training; Missing persons; Human rights and international solidarity; Right to food; Right of peoples to peace; Traditional values; Terrorist hostage-​taking; Enhancement of international cooperation; Human rights in post-​disaster and post-​conflict situations; Negative impact of corruption on human rights; Human rights and unilateral coercive measures; Attacks against persons with Albinism; Promoting human rights through sport and the Olympic ideal; and Local governments and human rights. 63 A/​RES/​66/​137. 64 A/​HRC/​14/​3. 65 A/​RES/​71/​189. 66 A/​HRC/​RES/​27/​21.

The Human Rights Council Advisory Committee  251

6.5 Concluding remarks The Advisory Committee held its first meeting in 2008. At that time, many had regretted the end of the Sub-​Commission and expressed their concerns over the mandate and the envisaged role the newly created body would play for the promotion of human rights. Interestingly, since the date of its creation, the Advisory Committee, through its activities as well as its ‘informal’ mandate as a human rights agenda setter, has received increasing support. Its task is not an easy one, taking into consideration the active role played by the Human Rights Council as well as the mandates of the various other organs and institutions who are contributing to the protection of human rights within the United Nations system. This said, there is indeed a place for an organ composed of experts whose task is to provide research-​based advice. Of course, such a body has to be given the necessary technical and financial resources to accomplish its mandate. Until now, albeit that requests have been made by members of the Committee for research assistance, no budget has been allocated to this end. This is certainly something to be improved in order to enhance the quality and depth of the expert reports which are requested by the Council. The Advisory Committee has developed its own practice of recommending to the Human Rights Council human rights issues that merit particular attention. The topics dealt with are various, as are the outcomes of its reports. Cooperation with the Human Rights Council is gaining ground. Moreover, the Committee has proved open to participation and frequent exchanges with various categories of stakeholders. Over the years, it has gained a voice within the organization. However, the Committee needs to continue to strengthen its voice and the Human Rights Council needs to broaden its support to the Committee through requests, follow-​up actions as well as budgetary support.

7 The Commission on the Status of Women Zehra F Kabasakal Arat1

7.1  Introduction The status of women has been on the agenda of the United Nations (UN) since its inception and typically addressed as an issue of discrimination in relation to human rights. The preamble of the UN Charter expresses ‘faith in fundamental human rights, in the dignity of human person, in the equal rights of men and women and of Nations large and small’. Article 1 and other articles that stipulate the Organization’s commitment to human rights specify that the rights will be enjoyed without distinction to sex, and Article 8 reaffirms that the Organization ‘shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principle and subsidiary organs’. As the UN’s work on human rights has evolved and expanded, so have its apparatuses and activities on the advancement of women’s rights and status. The General Assembly’s declaration of 1975 as the International Women’s Year and subsequent UN world conferences on women led to the proliferation of women-​focused agencies within the UN, as well as to the incorporation of women’s issues into the agenda of various UN bodies, including the Security Council. The Commission on the Status of Women (CSW or the Commission from here on)—​originally established in 1946 as a Subcommission of the UN Commission on Human Rights (CHR)—​was the first international organ ever created to promote women’s rights and equality.2 It played a key role in drafting declarations and treaties that promote women’s rights, organizing world conferences on women, the development of other UN agencies that address women’s issues, and monitoring and evaluating the attention given to women by other agencies. This chapter provides a brief history of the CSW and presents an overview of its operational structure, changing agenda, divisions among its members, major 1 I was brought into this book project due to the untimely death of Laura Reanda, to update her piece from the early 1990s. The adoption process inevitably involved some substantive revisions as well. I would like to hope that she would have approved them all. An indispensable facilitator in the process was Gabriela Tafoya, whose diligent research assistance in the early stages of the project deserves many thanks. Thanks are due also to my undergraduate assistant Emma Morelli, who helped with the final revisions, and to the University of Connecticut Political Science Honors Bennett Research Assistance Program that funded her work. 2 A committee established by the League of Nations in 1937 was authorized to study the legal status of women but not make recommendations. Another organization, the Inter-​American Commission of Women, established in 1928, has been at the regional level only. The UN reissued the League of Nation committee’s papers. See, E/​ HR/​ST/​1. See M Galey, ‘Forerunners in Women’s Quest for Partnership’ in A Winslow (ed), Women, Politics, and the United Nations (Westport: Greenwood Press, 1995) 1–​10; C Miller, ‘Geneva—​the Key to Equality: Inter-​War Feminists and the League of Nations’ (1994) Women’s History Review 3, 219–​45.

254  Zehra F Kabasakal Arat accomplishments, the difficulties encountered by the Commission, and the controversies surrounding both its work and the UN approach to women’s issues.

7.2  The mandate, composition and method of work Soon after the establishment of the UN, a number of women who had been instrumental in ensuring the inclusion of sex-​ equality provisions in the UN Charter demanded that the organization take the advancement of women’s status and women’s participation seriously and establish a Subcommission on the Status of Women to work with the CHR.3 Thus, the resolution of the Economic and Social Council (ECOSOC) that established the CHR also created the Subcommission on the Status of Women on February 16, 1946.4 The mandate of the Subcommission included preparing and submitting proposals, recommendations and reports regarding the status of women to the CHR. Since the ECOSOC would ‘require special advice on problems related to the status of women’ from the Subcommission, the Subcommission could also submit proposals to the ECOSOC through the CHR. The resolution named seven women as the initial members to the Subcommission, but then set the total membership at nine individuals, all of whom were to be appointed in their individual capacity. It also allowed for three ex-​officio members from the CHR and charged the Subcommission to make recommendations on its definitive composition to the second session of the ECOSOC through the CHR. Meeting a few months later in 1946, the Subcommission responded to the charge with the recommendation of a strong mandate, including: (a) an investigation function, assessing the conditions of women both in law and practice through information supplied by governments, as well as other UN agencies, women’s organizations, academic institutions, trade unions, and others; (b) a mobilization function, primarily through the convening of a women’s conference; (c) a technical assistance function, including training of women leaders, scholarships, international exchanges, and facilitating women’s participation in public affairs; and (d)  a ‘clearing house’ function for communications and information on all matters of interest to women. The Subcommission also recommended that it should be consulted before any decisions relating to women were made by the UN, the establishment of an Executive Committee composed of members residing near the UN headquarters ‘in order to guard the general policy of the Sub-​Commission’, and the creation of an Executive Office on Women’s Affairs, to be headed by ‘a highly competent woman’ who would be appointed after consulting the Subcommission and assisted by qualified staff. Some members of the Subcommission called for the inclusion of a standard-​setting role in the proposed mandate and for the drafting of an all-​encompassing ‘woman’s charter’ which, in their 3 The Commission on Human Rights was replaced by the Human Rights Council in 2006. Since the history covered here mostly applies to pre-​2006, this entity will be referred to as the CHR throughout the chapter. 4 E/​RES/​5/​5(1).

The Commission on the Status of Women  255 view, should be the primary goal of the new organ. Regarding its own structure, the Subcommission recommended elevating its status to that of a full commission that would ‘consist of twelve ordinary members elected in their individual capacity with regard to expert knowledge in the field of the status of women’. The members would be selected by a rotating system to ensure the representation of different regions and countries in different stages of social development. It was also stressed that the advancement of women was not a job to be solely accomplished by the CSW but required the engagement and work by other UN agencies such as the ILO and UNESCO, as well as other subcommissions of the ECOSOC.5 On 21 June 1946, the ECOSOC acted only on a few of these recommendations. It replaced the Subcommission with the Commission on the Status of Women (CSW) but went against the recommendation on membership. It changed the membership so that the Commission would be composed of government representatives from fifteen member states who would serve for three years.6 This change has been considered problematic by many, because serving as government delegates makes the Commission members subject to instructions by their governments, and they can be replaced at any time. Over the years, the membership size was increased several times to accommodate the growing membership of the UN; it has had forty-​five members since 1990.7 Until 1966, the CSW members were all women; some countries then started to appoint male representatives, but the majority has been always female. The original mandate of the Commission was quite similar to that of the Subcommission: The function of the Commission shall be to prepare recommendations and reports to the Economic and Social Council on promoting women’s rights in political, economic, civil, social and educational fields. The Commission shall also make recommendations to the Council on urgent problems requiring immediate attention in the field of women’s rights. The Commission may submit proposals to the Council regarding its terms of reference.8

In other words, the ambitious proposals of the Subcommission were considerably downsized. Thus, the recommendation of a permanent role for an Executive Committee of the Commission was ignored, and the secretariat was established as a section within the Division of Human Rights, rather than as an office with executive powers.9 The proposed women’s conference was not held until some thirty years later, in 1975, and the creation of an ‘Executive Office on Women’s Affairs’ had to wait until 2010, when 5 E/​PV.4 28 May 1946. The recommendations of the Sub-​Commission are contained in its report to the CHR, appended to the latter’s report to the ECOSOC. E/​38/​Rev.1 (1946). For discussion in the Sub-​Commission, see E/​ HR/​ST/​2, ST/​7 and ST/​11 (1946). 6 E/​RES/​2/​11. 7 It was increased to 18 in 1951, 21 in 1961, 32 in 1966, and 45 in 1990. 8 E/​RES/​2/​11. 9 Report of the CSW, E/​281/​Rev.1 (1947). For discussion of the issue, see E/​CN.6/​SR.2 and SR.16; E/​AC.7/​SR.18 and SR.21; E/​SR.74-​5 and SR.84.

256  Zehra F Kabasakal Arat UN Women was established (see the later sections). The proposal to give the CSW an investigation function based on all relevant information sources was also set aside. In 1947, the issue of how to deal with complaints of human rights violations that might be brought up by individuals or groups was raised at the first session of the Commission, as well as by the CHR. In August 1947, the ECOSOC concluded that the Commission could review allegations and complaints privately but could not take any action.10 The power to address grievances was later granted, albeit in different ways to both the CHR and to the committee that oversees the implementation of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) for those countries that became parties to the Optional Protocol to the CEDAW. However, the CSW has been denied the authority to investigate specific cases of discrimination or to take measures to ensure member states’ compliance with the standards set by the UN. Similarly, attempts to raise country-​specific situations and complaints in meetings of the Commission were closely intertwined with the political conflicts of the Cold War and were quickly defeated. Subscribing to the notion that members themselves were best qualified to speak on the situation of women in their own countries, information from other sources was barred.11 Reporting systems, established over the years as a part of the CSW’s monitoring and review functions, have been limited, as well. The Commission used the information submitted by governments to identify global issues and trends but fell short of issuing any criticisms of specific states.12 Thus, with the exception of a few cases (eg, the situation of women living under apartheid, the occupied Palestinian territories, and Afghanistan; or, the 1996 condemning of the murders of women journalists, particularly in Algeria),13 outright criticisms of specific situations by the Commission have been rare. Instead, the Commission assumed the functions of setting standards by drafting declarations and treaties, providing and supporting educational efforts, increasing awareness of the obstacles women face, and becoming a forum for members to report on the policies and measures adopted by their governments. The latter role has been repeatedly confirmed and expanded to encompass exchange of experiences and ‘lessons learned’, assessment of obstacles, discussion of trends and formulation of policy recommendations. However, the mandate of the Commission was gradually expanded; it was given authority to receive reports from states, UN bodies and others, to review communications from governments and make general recommendations on them, and to monitor implementation of the recommendations made by the world conferences on women held since 1975: Mexico City (1975), Copenhagen (1980), Nairobi (1985), and Beijing (1995). This latter role was enhanced following the Nairobi conference, which developed an action strategy to be followed by member states.14 In 1987, the mandate of the

10

E/​RES/​76(V).

11 See the CSW debates in E/​CN.6/​SR.23–​25, 31, 49, 53, 57, and 59 (1948–​9).

12 For a summary description of the various reporting systems see E/​CN.6/​1986/​2 and Add.1 and Corr.1. 13 14

E/​CN.6/​1996/​L.8. ESC/​RES/​1987/​22.

The Commission on the Status of Women  257 CSW was expanded to include advocacy of the goals of the UN Decade for Women (1976–​85)—​equality, development and peace—​and monitoring the activities taken to achieve those goals as specified in various UN treaties and conference outcome documents.15 After the Beijing conference, the mandate of the CSW was expanded in 1996 to include monitoring the implementation of the conference’s final plan, promoting and monitoring the mainstreaming of a gender perspective throughout the UN system, and identifying and making recommendations on emerging issues and trends.16 Similar monitoring responsibilities were extended to the implementation of the Millennium Development Goals, which were adopted by the General Assembly in 2000 and expected to be met by 2015, and the subsequent Sustainable Development Goals, which constituted the post-​2015 development agenda.17 The Commission meets annually for about 10–​20 days, typically around 8 March, International Women’s Day, which it celebrates. Between 1970 and 1986, it met biennially, but returned to the annual schedule in 1987. The work of the Commission is supported and sustained by a designated staff of the UN Secretariat, which carries out the technical and administrative work of the Commission throughout the year. In 1946, the Section on the Status of Women was established as the secretariat of the Commission within the Human Rights Division of the United Nations Department of Social Affairs. In 1972, for the first time, a woman was appointed to a position of Assistant Secretary General, and a long-​time Commission member, Helvi Sipilä, became the head of the new Center for Social Development and Humanitarian Affairs, the responsibilities of which included women’s affairs. Thus, the Commission’s secretariat was moved within the UN structure from the Division of Human Rights to the Centre for Social Development and Humanitarian Affairs (then in the Department of International Economic and Social Affairs) and geographically to Vienna. After being upgraded and renamed several times, the secretariat was named the Division on the Advancement of Women (DAW) in 1988.18 DAW moved to New York in 1993 and became a part of the Department of Economic and Social Affairs (DESA) in 1996. In 2010, it was incorporated into UN Women. After the Beijing conference (1995), the annual meetings of the Commission started to focus on two or more ‘priority themes’ from the critical issue areas designated in the Platform for Action devised at the Beijing conference, and to hold expert panels to discuss the issues and evaluate progress. The principle output of the CSW sessions are known as ‘agreed conclusions’ and involves the analysis of the priority theme and recommendations to be followed by governments, intergovernmental organizations, NGOs and other groups, and to be implemented at all levels, international, regional, national, and local. In 2006, at each annual session, the Commission started to examine one priority theme and review the progress made on an earlier one.19 For example, in 15 E/​RES/​1987/​24. 16 ESC/​RES/​1996/​6. 17 See various reaffirmations in E/​RES/​2015/​6. 18 The United Nations and the Advancement of Women (New  York:  United Nations, 1995) 15. A/​RES/​3009 (XXVII). 19 For agreed conclusions, see http://​www.unwomen.org/​en/​csw/​outcomes (Accessed 5 October 2019).

258  Zehra F Kabasakal Arat 2016, the CSW held its 60th session to examine women’s empowerment and its link to sustainable development as the priority theme and to review the elimination and prevention of all forms of violence against women and girls, which was the priority theme for the 57th session held in 2013.20

7.3  Issues of concern and agenda shifts The fundamental guidelines of the work of the Commission were elaborated on at its first session, held in Lake Success, New York, in February 1947, and arguably remain an essential statement of principles still guiding its work. The principles emphasized three elements: (a) freedom and equality are essential to human development, and therefore women as human beings are entitled to share in them with men; (b) the well-​being and progress of society depend on the extent to which both men and women have a definite role to play in the building of their society; and (c) women must take an active part in the fight for peace, the prevention of aggression, and the elimination of fascist ideology.21 The same principles were echoed, thirty years later, as the three themes of the UN Decade for Women (1976–​85): Equality, Development, and Peace. Beyond this broad agenda, however, there was no consensus on priorities and strategies. Sharp ideological differences engendered contentious debates. In the midst of the Cold War, the East-​West divide was paramount, and the CSW became an important battleground.22 The Western Bloc countries were concerned primarily with promoting equal rights for women as individuals, with particular attention to civil and political rights. For a number of years, this group, with occasional support from some Latin American and Asian countries, argued successfully that the Commission would have greater authority if it focused on problems affecting women because of their sex, which they considered as the essence of its mandate.23 On the opposite side, the state-​socialist and non-​aligned countries consistently argued that equal rights for women were meaningless if addressed in isolation from problems relating to self-​determination, independence, and national liberation, as well as peace, disarmament, and development. These states pressed the Commission to take a position on various political issues of the day, in particular with regard to the aftermath of the Second World War and colonial questions.24 They were also critical of the ‘equal rights approach’, considering it serving mainly the already better educated and professionally qualified women and neglecting the majority of women living in rural areas, the unemployed, and those engaged in 20 For priority and review themes covered in recent years, see http://​www.unwomen.org/​en/​csw (Accessed 5 October 2019). 21 E/​CN.6/​SR.11-​12 (1948). It should be noted that the Subcommission, which had elaborated these guidelines, had not included the third item, which was added by the new Commission upon a proposal of the Soviet Union. 22 H Laville, Cold War Women:  The International Activities of American Women’s Organisations (Manchester: Manchester University Press, 2002). 23 See E/​CN.6/​SR.365 (1962) for a CSW’s debate between the French and USSR representatives on a Soviet proposal seeking to condemn repression of women for their political activities, 24 See, for example, the debate on a USSR proposal to include the question of Nazism and fascism in the CSW’s programme of work, E/​CN.6/​SR.40-​45 (1949).

The Commission on the Status of Women  259 domestic service. They took the position that the Commission should take up questions concerning social welfare rights and protective measures for women workers, while the Western group viewed these issues as diluting the equal rights agenda and being within the mandate of other UN organs.25 Moreover, some countries with relatively more conservative governments kept stressing the need to safeguard the family and women’s primary role as mothers. Expressing fears that promoting women’s rights might have destabilizing effects on the family and society, they frequently resisted the equality measures recommended by the Commission. Nevertheless, viewing some measures as facilitating the fulfillment of women’s traditional roles, they allowed for a degree of consensus on many of the Commission’s recommendations.26 Given the diversity in state positions, combined with the differences and changes in the concerns of the national and international women’s movements, the Commission has not always had a clear focus. In fact, as I  tried to illustrate elsewhere, the Commission’s work was largely shaped by the Cold War rivalries as well as by a range of feminist approaches thanks to its openness to women’s groups.27 However, some substantial shifts in its priorities and approaches over time lead analysts to distinguish three broad historical and overlapping phases in its life. In the first phase, which lasted for roughly twenty-​five years, from its creation until the early 1970s, the Commission was more responsive to the Western approach and tended to function within a Western liberal feminist framework. Its actions focused primarily on developing the legal norm of equality between women and men through information gathering, standard-​setting, and promotional activities. The second phase, which had the mark of the Eastern Bloc countries, began in the mid-​1960s but was launched in full with the International Women’s Year in 1975 and lasted until the late 1980s. In this phase, the Commission’s work shifted towards promoting women’s effective participation in economic and social development, with particular emphasis on the creation of women-​specific machineries at the national level and of project-​oriented bodies within the UN system. The third phase arguably started to emerge during the preparations for the Nairobi conference to be held in 1985 at the end of the UN Decade for Women, but crystallized through the subsequent major UN conferences, including the 1995 Beijing conference on women. In addition to recognizing gender specific human rights violations and stressing that ‘women’s rights are human rights’, the Commission started to accept that a fundamental transformation of established conceptual approaches and social organization itself is necessary to ensure not only equality between the sexes but also the sustainable development of society as a whole. While there is considerable overlap between 25 See, for example, the debate on the proposal by Poland to include an item entitled ‘Protection of the mother and child’ in the agenda of the CSW, E/​2727 (1955). 26 See, for example, the statements by Spain and the United Arab Republic in the debate on day care, E/​CN.6/​ SR.373-​4; Iran and Indonesia on inheritance rights, E/​CN.6/​SR.377-​8; the Philippines on political rights, E/​CN.6/​ SR.415; and debates on family planning in 1968 and subsequently. 27 Z Arat, ‘Women’s Rights and the UN:  Would Achieving Gender Equality Empower Women? Feminisms’ (2015) 109 American Political Science Review 4, 674–​89.

260  Zehra F Kabasakal Arat these phases, they are sufficiently distinct in terms of conceptual emphasis and institutional arrangements to warrant separate analysis.

(a)  The first phase: the equal legal rights orientation (late 1940s–​early  1970s) We may contend that the countries pressing for an equal rights orientation were by and large able to keep the Commission on the equal rights course during the earlier years. Despite their differences, all Commission members agreed on the significance of participating in the drafting of the Universal Declaration of Human Rights (UDHR). The chair of the Commission participated in draft discussions, and the Commission as a whole insisted on employing a gender-​neutral language, opposed using ‘man’ in reference to humanity and had the term replaced with ‘human being’ or ‘person’, despite the strong resistance posed by some members of the CHR.28 The activities of the Commission during this first phase can be examined under three headings: (1) information gathering; (2) standard setting; and (3) promotion.29 i. Information gathering and research activities The Commission designed an initial programme of work geared to ‘the examination of existing legal and customary disabilities of women’ in the legal, political, economic, social and educational fields, and requested the Secretariat to undertake research on the basis of a ‘Questionnaire on the Legal Status and Treatment of Women’, which built on the earlier work done under the League of Nations.30 The questionnaires, intended to be filled out by government officials at some intervals, primarily involved eliciting information with regard to constitutional and legal developments, as well as administrative and other measures taken by governments to grant equality to women.31 Despite the recurrent criticism of the questionnaire method and dissatisfaction with the scarcity of factual information reaching the Commission, the information ­collected during this period performed a valuable function in identifying various aspects of the condition of women in different parts of the world and drawing international attention. The Commission addressed a range of discriminatory practices.32 Regarding political participation, it reviewed not only questions relating to the rights to vote and be elected, but also to the problem of equal rights for women in the secretariats of the 28 The United Nations and the Advancement of Women, above n 16, 17; D Jain, Women, Development and the UN: A Sixty-​year Quest for Equality and Justice (Bloomington: Indiana Press University, 2005) 19–​20. 29 For more details, see M Galey, ‘Promoting Nondiscrimination against Women: The UN Commission on the Status of Women’ (1979) 23 International Studies Quarterly 2, 273–​302. 30 The questionnaire was reproduced in document E/​CN.6/​W.1 and Add.1-​3. 31 The Commission’s recommendation to have the questionnaire emphasize the existence and extent of discrimination, rather than legal equality, and to consider materials collected from governments as only one source of information, was not accepted by the ECOSOC (E/​615 (1948)). 32 A handy guide to the studies prepared for the Commission is contained in the surveys prepared yearly by the Secretariat between 1960 and 1968, E/​CN.6/​372 and Add.1-​6.

The Commission on the Status of Women  261 UN and other international organizations, and equal representation of women on government delegations to these bodies. It also raised the issue of the status of women in colonial and trust territories, and was instrumental in ensuring the inclusion of information regarding women in reports submitted by the colonial rulers. The Commission also considered customs and practices that were deemed harmful to women (eg, female circumcision, polygamy, and bride-​price) and reviewed inequalities in marriage, parental rights, property and inheritance rights, the penal code and system, nationality rights, etc. In co-​operation with the ILO and UNESCO, it also considered questions relating to economic rights, such as equal pay for equal work, non-​discrimination in employment, and educational opportunities. ii. Standard-​setting (declarations and conventions) The material collected through various studies provided the basis for the normative exercises undertaken by the Commission. Its original mandate had not included standard setting, because women’s rights, not considered a separate category, had been presumed to be subsumed in the future human rights instruments under the principle of equality. However, the need for developing international norms that specifically addressed women’s unequal legal status soon became apparent. Thus, the Commission was mandated to draft standards in various issue-​specific areas. The effort, however, proved more difficult and time-​consuming than envisaged, as the draft texts were repeatedly returned to the Commission by the ECOSOC for amendments.33 Nevertheless, between 1949 and 1962, several treaties on women’s political rights, nationality rights, and freedom and equality in marriage contracts were drafted by the Commission and ultimately adopted by the General Assembly of the UN (GA).34 Although these conventions had limited impact—​typically due to their narrow focus, lack of implementation provisions, and not being widely ratified35—​they entailed important normative messages. The Commission’s criticism of practices that harmed women and girls led the GA to adopt a resolution on 17 December 1954, calling on member states to eliminate ‘customs, ancient laws and practices affecting the human dignity of women’, by a vote of forty-​three to nil, with one abstention. The resolution named various practices such as bride-​price, child marriage, and denying widows the right to child custody or remarriage, but omitted some other harmful practices such as female genital cutting.36 Deeply conscious of the male bias within the UN system—​including those organs created to promote human rights—​the Commission actively sought to make these 33 For an insight to the UN debates on the ‘wording’ of texts, see S Merry, Human Rights and Gender Violence (Chicago: University of Chicago Press, 2006). 34 Convention on the Political Rights of Women (GA Res. 640 (VII)(1952)); Convention on the Nationality of Married Women (GA Res. 1040 (XI)(1957)); Convention and Recommendation on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages (GA Res. 1763B (XVII)(1962) and GA Res. 2018 (XX)(1965)). 35 See N Hevener, International Law and the Status of Women (Boulder, CO: Westview Press, 1983). 36 The United Nations and the Advancement of Women, above n 17, 24.

262  Zehra F Kabasakal Arat organs responsive to the concerns of women. Due to their historical and conceptual ties and having a common secretariat, the CHR and its Subcommission on the Prevention of Discrimination and Protection of Minorities were natural targets for such efforts.37 As in the case of the UDHR, the Commission members were determined to influence the drafting of the two international covenants of human rights and were successful in inserting broad equal-​rights provisions in these instruments. In fact, ECOSOC had authorized the Commission to be present at sessions of the CHR when sections of the International Bill of Rights particularly relevant to women were debated. It had requested the Subcommission on minorities to invite the Commission to be represented at its meetings when discriminations based on sex were discussed, and in 1955, the CSW participation in all relevant meetings of the CHR was extended.38 Representatives of the Commission regularly attended these meetings, and the Commission used its authority to comment in detail on a report on slavery and on studies dealing with discrimination in education, in religious rights and practices, in political rights, in respect to the right to leave one’s country, and against persons born out of wedlock. It also kept pressing for the consideration of women in the UN’s advisory services programme on human rights, which was started in 1955, and included seminars, fellowships, and expert services to member states. Moreover, it reviewed the draft reports of a number of studies on discrimination in various fields conducted by Special Rapporteurs of the Subcommission on Minorities, in order to ensure that the studies adequately covered the situation of women. However, as indicated in several reports, the Commission members were not always pleased with the response that they received from these various human rights bodies.39 The Commission played a similar role vis-​a-​vis the ILO and UNESCO, co-​operation with which was included in its original mandate. The two agencies were represented at the CSW sessions and reported on their activities, including their standard-​setting efforts, on which the Commission was asked to comment. The Commission played a particularly important role in the elaboration of the following: The 1951 ILO Convention and Recommendation Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value,40 the 1958 ILO Convention Concerning Discrimination in Respect of Employment and Occupation,41 and the 1960 UNESCO Convention concerning Discrimination in Education.42 The CSW also often requested the ILO and UNESCO to study the status of women falling within their frame of reference and provided guidance in the development of their research and other programmes. It was also instrumental in the establishment of women’s programmes within these agencies and in heightening their awareness of the problems and needs of women. 37 For a statement on the need to put forward the Commission’s views in the Subcommission because of its all-​ male membership, see the representative of Finland in E/​CN.6/​SR.437 (1966), who, a year later, criticized the CHR for reviewing all kinds of discrimination except discrimination against women, E/​CN.6/​SR.459 (1967). 38 ESC Res. 48 (IV) (1947) and ESC Res. 566 (XIX) (1955), respectively. 39 For examples, see the later section, entitled ‘Problems and Prevailing Issues’, in this chapter. 40 ILO Convention No 100, Recommendation No 90, 1951 41 ILO Convention No 111, 1958. 42 CPG.61.VI.11A 1961.

The Commission on the Status of Women  263 iii. Promotion The Commission also engaged in educational and promotional activities in a broad effort to influence national policies and to bring about changes not only in public opinion but also in women’s own perceptions and attitudes. Thus, it sponsored a seminar series and issued a number of publications, including a newsletter on the status of women. It devised several activities intended to educate women about their rights and to mobilize women’s organizations. However, the records of the Commission throughout this period are full of expressions of frustration at the attitudes of women, who were considered ‘apathetic’ and too attached to traditional norms, behaviour, and gender stereotypes to struggle for their own rights.43 In its third-​session report to the ECOSOC, the Commission pointed to the underrepresentation of women within the UN Secretariat and the desirability of increasing women’s participation in state delegations. Despite the promises and some GA resolutions to increase women’s presence in ‘senior and professional levels and in policy-​making positions’,44 the progress was slow and still remains unsatisfactory.45

(b)  The second phase: women in development and the UN Decade for Women The process of decolonization, which reached a peak in the 1960s, increased the number of member states and affected the agenda of the UN and all of its agencies, including the CSW. The Commission set aside the surveys on various aspects of the status of women, especially since governments’ interest had waned and many governments failed to submit responses in the 1960s.46 On political rights, it seems that there was an understanding that legal and constitutional developments had largely run their course and most countries had granted equal rights to women, at least on paper. It was thought that the Commission should become more involved in promoting the actual exercise of those rights.47 On harmful practices, there seems to have emerged a tacit consensus that these were questions for the newly sovereign governments to look into and resolve in accordance with their local needs and perceptions.48 The expansion of UN membership and changing membership of the Commission made it more sympathetic and responsive to the arguments raised by the non-​aligned and Eastern bloc countries, holding that equality between the sexes could not be 43 For the list of seminars and other information, see United Nations Action in the Field of Human Rights, ST/​ HR/​2/​Rev.4 (1994), 359–​61. 44 The United Nations and the Advancement of Women, above n 17, 24–​5. 45 K Haack, ‘Gaining Access to the ‘World’s Largest Men’s Club’, 28 Women Leading UN Agencies. Global Society’ (2014) Journal of Interdisciplinary International Relations 2, 217–​40. 46 See the report of the Secretariat, E/​CN.6/​425 (1965). 47 See in particular the debates on the future work programme of the Commission in E/​3606/​Rev.1 (1962) and E/​3749 (1963). 48 See, for example, the USSR statement opposing a draft resolution on the question of ‘ritual operations’ (as female genital cutting was then called) on the grounds that it was not for the current Commission membership to raise the issue but for the African countries themselves once they had become members. E/​CN.6/​SR.340 (1962). The issue was later dropped.

264  Zehra F Kabasakal Arat achieved in isolation from national and global social and economic issues and that women were the first to suffer in situations of underdevelopment, foreign occupation, and conflict. Thus, addressing the basic needs of the vast majority of the world’s women (in developing countries) became the central concern, and the CSW work shifted toward examining and promoting women’s role in economic development. In 1960, both the ECOSOC and the GA adopted resolutions calling for assistance by the UN system for the advancement of women in developing countries.49 The CSW began to link the struggles for equality and development, arguing that women should be viewed not only as beneficiaries but also as agents of development and calling for their contribution to be recognized and taken into account in the development strategies then under elaboration by the UN. The Commission started to issue recommendations regarding rural women’s needs in development and agricultural work and to urge governments to use UN development and technical assistance to help women.50 A link was established between the goals of the first UN Development Decade and those of the CSW itself. In 1962, the GA had endorsed the Commission’s views and requested it develop a ‘unified long-​term program’ for the advancement of women, which would involve various sectors of the UN system.51 The two main concerns guiding the CSW in its debates were (1) the elaboration of concrete measures for ensuring greater participation of women in development efforts and the mobilization of the UN system behind this goal, and (2) the integration of the goals of equality and non-​discrimination into the new approaches. The formal redefinition of the Commission’s programme, in accordance with the first goal, came from the International Conference on Human Rights held in Tehran in 1968. The Conference recommended, notably, that the CSW give priority to problems concerning education and women’s contribution to economic and social development, and that it reconsider its work with a view to meeting the needs of women in the contemporary world. The outcome document also called on the UN system to contribute appropriate technical assistance to national programmes for the advancement of women.52 As research findings started to connect the low status of women, especially in developing countries, to the problems of poverty, illiteracy, malnutrition, poor health conditions, population growth, rapid urbanization and migration, etc., the role of women in development gained more attention. In 1968, the ECOSOC created a new post, the Special Rapporteur for the Status of Women and Family Planning Project, and the CSW member Helvi Sipilä (Finland) was appointed to the post.53

49 See ESC Res 771H (XXX)(1960) and GA Res 1509 (XV)(1960). 50 The United Nations and the Advancement of Women, above n 17, 27. 51 GA Res 1777 (XVII)(1962). For a summary of the Commission’s work on the unified long-​term programme, see E/​CN.6/​512 (1969), 532 (1970) and 577 (1976). 52 See Final Act of the International Conference on Human Rights, A/​CONF.32/​41 (1968), 10–​11; the recommendations of the Conference were later endorsed in GA Res.2442 (XXIII)(1968). It should be noted that the agenda of the Conference with regard to women and its recommendations were both influenced by the Commission. 53 Jain, above n 27, 60.

The Commission on the Status of Women  265 Integrating women into the development process by creating educational and training opportunities resonated in Western states as well, and they started to create ‘women in development’ offices in their international development and aid agencies. Thus, ‘Women in Development (WID)’ emerged as a development paradigm in its own right. Soon, however, the WID approach became a subject of criticism for subscribing to modernization theory, which was accused of following the Western experience as the model to be emulated, and for emphasizing women’s reproductive roles, focusing on women’s traditional economic activities, and promoting capitalist modernization.54 The introduction of dependency theory to the debates on the UN Development Programme in the late 1960s and the publication of the Danish economist Ester Boserup’s now famous book Women’s Role in Economic Development in 1970 introduced new perspectives. Pointing to the gendered character of labour provided by men and women, both in the market as paid labourers and in the domestic sphere as unpaid labourers, and noting the significant contribution of the latter to national economies, Boserup’s study raised questions about the ‘gender neutral’ approach of aid agencies and development policies. It informed the UN Decade for Women and stimulated the conceptualization of alternative development paradigms, known as ‘Women and Development (WAD)’ and ‘Gender and Development (GAD)’, in the late 1970s and 1980s, respectively.55 Although these approaches were more holistic than WID, they were ultimately subsumed in a neoliberal economic paradigm in the 1990s.56 i. The Declaration on the Elimination of Discrimination against Women The Commission attempted to meet the second goal set in 1960 by drafting The Declaration on the Elimination of Discrimination against Women, between 1965 and 1967. With its focus on the long-​term programme and the Declaration, other items on the CSW agenda were subsumed under those, placed on a biennial schedule, or discontinued.57 State-​socialist countries, in line with their commitment to a certain version of Marxist feminism and longstanding philosophy in support of economic and social rights were the main sponsors of the Declaration. The Declaration was the first instrument to address various areas of concern in a comprehensive manner. It reaffirmed the equality norms contained in the earlier conventions, but also, for the first time, addressed issues related to economic and social 54 J Jaquette and K Staudt, ‘Women, Gender and Development’ in J Jaquette and G Summerfield (eds), Women and Gender Equity in Development Theory and Practice: Institutions, Resources, and Mobilisation (Durham: Duke University Press, 2006) 17–​52; G Chowdhry, ‘Engendering Development? Women in Development (WID) in International Development Regimes’ in M Marchand and J Parpat (eds), Feminism/​Postmodernism/​Development (London:  Routledge, 1995) 26–​41; N Kabeer, Reversed Realities:  Gender Hierarchies in Development Thought (London: Verso Books, 1994); E Rathgeber, ‘WID, WAD, GAD: Trends in Research and Practice’ (1990) 24 Journal of Developing Areas 4, 489–​502. 55 As WAD followed neo-​Marxist dependency theory and stressed the inequalities reproduced by neocolonial policies and the value of women’s reproductive and unpaid labour, GAD emphasized the link between gendered roles in public and private domains and promoted ‘bottom up’ strategies by grass-​roots organizations as alternatives to the ‘top down’ development designs imposed upon the people of developing countries. For a brief discussion of these paradigms, see Rathgeber 1990. 56 Kabeer, above n 53, xiv. 57 Report of the CSW, E/​4619 (1969).

266  Zehra F Kabasakal Arat rights, education, employment, social welfare, maternity protection, and the exploitation of prostitution.58 After the Declaration was adopted, much of the Commission’s work came to focus on the implementation of the Declaration. Studies and seminars increasingly addressed social and economic issues, including new issues, such as family planning, not previously addressed by the Commission.59 When a reporting system on the implementation of the Declaration was established, the Commission was assigned the responsibility of gathering and evaluating the reports.60 This system, however, was consistently plagued with problems, including low government response61 and the difficulties in establishing an effective review, which became more pronounced once the Commission’s sessions were placed on a biennial schedule. As its work on social and economic rights and development expanded in the early 1970s, certain institutional rearrangements weakened the CSW’s connection to the UN human rights apparatus. In 1972, the Commission’s secretariat was moved from the Division of Human Rights (which served as the secretariat to the CHR) to the Centre for Social Development and Humanitarian Affairs (then in the Department of International Economic and Social Affairs, which became responsible for women’s issues). The change also involved moving the unit ‘physically’ to Vienna, while all human rights bodies and activities remained in Geneva.62 The change in orientation and location gradually limited the CSW’s participation in the work of the human rights organs of the United Nations. In the ensuing years, it did not intervene in debates or comment on studies of various human rights issues of relevance to its work, such as on trafficking of people, prostitution, slavery, and female circumcision. Similarly, it did not attempt to have any input in the drafting of various human rights instruments, such as on the right to development, the rights of children, the rights of migrant workers and non-​citizens, among others. It also no longer attempted to review the standard setting activities of specialized agencies, although its concern with the work of the agencies expanded in relation to their role in technical assistance. The international women’s movement, which began to emerge in the late 1960s and included strains with intellectual roots in anti-​colonial struggles and leftist economics, further reinforced this trend.63 58 The Declaration was adopted by the General Assembly as GA Res.2263 (XXII)(1967). For CSW preparatory work, see its reports E/​4025 (1965), E/​4175 (1966), E/​4316 (1967). The question of the exploitation of prostitution, the object of a separate convention, was referred to the Commission for the first time through the reporting procedure under the Declaration. 59 Study on the interrelationship of the status of women and family planning, E/​CN.6/​575 and Add.1-​3 (1974), prepared by a special rapporteur of the CSW beginning in 1968. 60 ESC Res.1325 (XLIV)(1968) requested the UN Secretary-​General to submit reports on a regular basis to the Commission on the information received from member states, the specialized agencies, and non-​governmental organizations concerned with the implementation of the Declaration. 61 Only thirteen reports were received from Governments under the Declaration in 1972. 62 The CSW started to meet in New  York again on its 38th session held on 7–​14 March 1994. By then, the CEDAW had been adopted and the monitoring committee was meeting in New York. But in January 2008, the treaty body for the CEDAW was moved to Geneva, to have it join the other human rights agencies and be fully serviced by the High Commissioner of Human Rights. 63 On this point see K Newland, ‘From Transnational Relationships to International Relations:  Women in Development and the International Decade for Women’ in R Grant and K Newland (eds), Gender and International Relations (Bloomington: Indiana University Press, 1991) 122–​32.

The Commission on the Status of Women  267 ii. The International Women’s Year and the UN Decade for Women In 1972, upon a suggestion by the Romanian delegation, the Commission recommended 1975 to be designated as the International Women’s Year (IWY), to remind the international community that discrimination against women was persistent and that efforts should be increased not only to promote equality between men and women but also to acknowledge women’s crucial role in development.64 The IWY and the subsequent ten years (1976–​85), designated as the UN Decade for Women (the Decade from here on), triggered a set of events that led to another shift in the CSW. The IWY also created the opportunity to organize a world conference on women that had been originally proposed by the Subcommission in 1946. Holding of a world conference was proposed by Romania and the United States separately, and, as such, it illustrates that the Cold War competition could also bring about positive results. This kind of competition, at any rate, was the subtext of the three world conferences held during the Decade, at Mexico City (1975), Copenhagen (1980) and Nairobi (1985). Like much of the work of the CSW, the conferences evinced a double reality. On the one hand, there were meetings of states and for states, dominated by geopolitical concerns; but on the other hand, there were meetings of women and for women, motivated by a shared understanding of the need to improve the condition of women worldwide regardless of political antagonisms among governments.65 By increasingly stressing the link between women’s concerns and broader issues, which were emphasized by member states, the conferences raised the question of the advancement of women to a much higher level of visibility than it had enjoyed up to that time. They also pressured member states to show commitment to the promotion of women’s rights. The conferences were attended by thousands of women both as governmental representatives and as non-​governmental participants in the parallel NGO forums. Thus, they were credited with laying the foundation for the development of a more coherent international women’s movement. The political declarations and programmes of action adopted by the conferences were subsequently endorsed by the GA and defined the international approach to women’s issues well into the 1990s.66 Addressing the theme of ‘Equality, Development and Peace’, these documents spelled out a new and more comprehensive analysis and awareness of the condition of women worldwide and identified the necessary actions to be taken by governments, as well as intergovernmental and non-​governmental organizations. In addition to the issues 64 The United Nations and the Advancement of Women, above n 17, 32–​3. 65 The first two conferences in particular were dominated by bitter controversies over Zionism and Apartheid, and ended with negative votes or abstentions by some Western countries, including the United States. For political analyses of the three conferences, see Winslow, above n 1. Also, see commentaries by various participants: Irene Tinker, ‘International Women’s Year’ (1975) 190 Science 4221, 1249; I Tinker, ‘International Notes: A Feminist View of Copenhagen’ (1981) 6 Signs 3, 531–​7, and various responses to Tinker in ‘Letters/​Comments’ (1981) 6 Signs 4, 771–​90; ‘Reflections on Forum ‘85 in Nairobi, Kenya:  Voices from the Women’s Studies Community’ (1986) 11 Signs 3, 586–​9. 66 The reports of the first three world conferences can be found in the following documents: Report of the World Conference of the International Women’s Year, E/​CONF.66/​34 (1975); Report of the World Conference of the UN Decade for Women:  Equality, Development and Peace, A/​CONF.94/​35 (1980); Report of the World Conference to Review and Appraise the Achievements of the UN Decade for Women:  Equality, Development and Peace, A/​ CONF.116/​28/​Rev.1 (1985).

268  Zehra F Kabasakal Arat that had been a long-​time concern of the Commission, such as political participation, education, employment, the world conferences also addressed a great variety of socioeconomic problems such as health, nutrition, agricultural production, access to credit, housing, industrial development, poverty, international debt, and the situation of especially vulnerable groups of women, eg, refugees, the disabled, the elderly. In addition to enlarging the scope of international understanding of the situation of women, the conferences stimulated the creation of national machineries for the advancement of women, the collection of sex-​disaggregated data in a variety of fields, and the development of a large number of programmes and projects involving many different bodies and agencies of the UN system.67 The Plan of Action adopted at the Mexico City conference assigned the CSW the task of drafting The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The adoption of the CEDAW in 1979 constituted another turning point. The result of a Soviet initiative, the Convention was a particularly difficult drafting exercise, which required delicate compromises among various ideological positions that were apparent in the Commission, since the Commission members typically represented their government’s position.68 Ultimately, however, the Convention is considered the crowning achievement of the Commission in the field of standard-​ setting, because it went beyond the provisions of all earlier instruments and brought together a wide range of rights applicable to women—​whether civil, political, economic, social or cultural—​without the discrepancies that had plagued the drafting of the two International Covenants. This showed that the issue of women’s rights could actually bring significant intellectual and practical improvements to the human rights edifice. Most important, the Convention established an expert committee and formal mechanism and procedures for the review of implementation by States parties. Ironically, however, the creation of the separate review mechanism was against the CSW’s recommendation, which wanted to put itself into the supervisory role over the implementation process. In fact, the creation of the CEDAW system led some to question if the Commission’s work was becoming redundant.69 The Copenhagen conference, held in July 1980, to assess the progress since the Mexico conference and update the Plan of Action, stressed employment, health and education with an understanding that the broad goals of equality, development and peace could not be achieved without identifying sector-​specific objectives. In addition

67 A 1989 Secretariat report found that between 1975 and 1988, more than 500 legislative instruments relating to women had been adopted by the UN system. It also identified over 1,500 activities of relevance to women carried out by thirty-​six organizational units and involving a total expenditure of over one billion United States dollars in 1988–​89. Only about 6 per cent of those funds, however, represented programme elements or projects entirely devoted to the advancement of women. See E/​1989/​19. 68 The Convention was adopted by the General Assembly as GA Res.34/​180 (1979). For an analysis, see Henever, above n 34; R Cook, ‘State Accountability under the Convention on the Elimination of All Forms of Discrimination Against Women’ in R Cook (ed), Human Rights of Women—​National and International Perspectives (Philadelphia: University of Pennsylvania Press, 1995), 228–​56. 69 These concerns were eventually set aside, as a division of labour was established between the Commission, with its established role in policy formulation and analysis, and the CEDAW Committee, modelled after the treaty-​ based bodies in the human rights field, with the responsibility of reviewing progress by States parties.

The Commission on the Status of Women  269 to women’s access to and control over property, improvements in the CSW’s earlier areas of focus, such as child custody and loss of nationality, were highlighted.70 On 5 December 1980, the GA asked the Secretary-​General to survey women’s role in development and prepare a report.71 The report, World Survey on the Role of Women in Development, was first issued in 1985 and updated every five years. Including substantial data on women’s participation in different economic sectors and addressing obstacles and gaps, the report has become an important source of information that is consulted for policy formulation. The work of the CSW continued to operate within the framework of the UN Development Decade. Member states’ reports and the CSW reviews emphasized the integration of women in development. These reporting systems came to replace the earlier rights-​based ones in the work of the Commission.72 The questionnaires, on the basis of which reports were prepared, relied now primarily on socio-​economic categories related to development analysis, rather than on normative categories derived from human rights standards.73 The increasing programmatic emphasis on development was reflected in the medium-​term plan of the UN for the 1984–​89 period, in which women were included—​together with youth, the aging, and the disabled—​as a ‘less advantaged population group’ in the programme on social development and humanitarian affairs, the objectives of which were defined by the International Development Strategy for the Third Development Decade.74 An analysis of the mandates concerning women adopted by the UN system between 1975 and 1988 shows that more than 75 per cent of them related to development, while 8.5 per cent related to equality, 6.4 per cent to peace; and the remainder related to issues of special concern or multiple mandates; the analysis of the allocation of resources for the 1988–​89 budget period reveals that about 66 per cent of the system’s total expenditure for women (from the regular budget and extra-​budgetary sources) was earmarked for development, and less than 1 per cent was allocated to the equality objective.75 Although the drafting of the Convention represented the culmination of years of efforts by the CSW and the realization of many of its proposals, the Commission was not viewed as the key actor in the UN’s programming on women. Despite its efforts, the Commission was not charged with the preparations for the world conferences on women until the third one held in Nairobi (1985).76 Although its mandate was expanded in 1975 to include the reporting system under the Decade, it was not given greater powers or resources to carry out this task effectively. Moreover, the respective 70 United Nations and the Advancement of Women, above n 17, 44. 71 United Nations and the Advancement of Women, above n 17, 45. 72 GA Res.3490 (XXX)(1975), 3520 (XXX) (1975), 31/​136 (1976), 33/​186 (1978), and 35/​136 (1980). 73 During the Commission’s preparatory sessions for the Nairobi conferences, several delegations expressed regret that review and appraisal had not been based on existing legal instruments. A/​CONF.116/​PC/​25 (1985). 74 Medium-​Term Plan for the Period 1984–​1989, A/​37/​6 (1982), Chap 21. 75 E/​1989/​19. 76 The preparatory work for the Mexico conference was carried out by a consultative committee of twenty-​three member states appointed by the Chair of the Third Committee of the GA in consultation with the regional groups, and for the Copenhagen conference by a preparatory committee, also composed of twenty-​three member states appointed by the President of ECOSOC in consultation with the regional groups.

270  Zehra F Kabasakal Arat roles and responsibilities of the various organs and procedures involved in the follow-​up to the plans of actions adopted during the Decade were not clearly delineated, further marginalizing the role of the CSW.77 Additional machinery dealing specifically with the integration of women in development was created, in particular the International Research and Training Institute for the Advancement of Women (INSTRAW) and the United Nations Development Fund for Women (UNIFEM).78 The Commission’s involvement in this work was peripheral at best; in addition to separate reporting procedures for those bodies, the CSW’s biennial schedule and the brevity of its sessions prevented it from exercising an effective review function. Almost since the inception of the UN Decade for Women, however, this gradual erosion in the CSW’s role and the concentration of its work on development had given rise to criticism. A repeatedly voiced concern was the insufficient attention paid to the objectives of equality and peace, or to their complex interrelationships with the development objective. It was also increasingly argued that the CSW should retain its unique position as the catalyst for all action related to women within the UN system and that it should play a central role with regard to coordinating and promoting implementation of the plans of action adopted by the world conferences.79 This view, initially endorsed by the Copenhagen conference, eventually prevailed. A proposal submitted in 1980 to the GA to abolish the CSW and transfer its functions to ECOSOC was set aside in favour of maintaining the Commission and strengthening its policy and advisory roles, as well as its cooperation with other components of the UN system. In particular, the Commission was to be consulted in the preparation of a world survey on the role of women in development and other activities concerning women, and was requested to make proposals for the conference that would mark the end of the Women’s Decade.80 At the same time, efforts were made to adjust the Commission’s agenda to achieve better integration and balance among the three objectives of the Decade, by ensuring greater attention to the issues related to equality and peace. In line with the continuing ideological divisions within the Commission, the Eastern Bloc countries were instrumental in obtaining the adoption of a Declaration on the Participation of Women in Promoting International Peace and Co-​operation, and of programmes for women living under apartheid and Palestinian women under the ‘peace’ item; while the Western Bloc countries promoted the inclusion of issues related to the reordering of sexual roles in society and women’s participation in the United Nations secretariat, under the ‘equality’ item.81

77 This state of affairs gave rise to criticism by several delegations in particular at the third session of the CSW as the preparatory body for the Nairobi conference. A/​CONF.116/​PC/​25 (1985). 78 Established by ESC Res.1998 (LX)(1976) and GA Res.39/​125 (1984), respectively. UNIFEM superseded the Voluntary Fund for the UN Decade for Women created after the 1975 conference. 79 See for example the debate at the 1978 session of the CSW, E/​CN.6/​SR.586-​93 (1978). Similar arguments were made at subsequent sessions as well as in debates in ECOSOC and GA on the relevant items. 80 ESC Res.1980/​38, 1982/​26; GA Res.35/​136 (1980), 36/​126 (1981), 36/​127 (1981), 39/​128 (1984). 81 The Declaration was adopted in GA Res.37/​63 (1982). See ESC Res. 1984/​11, 1984/​14, 1984/​17, 1986/​21; and GA Res. 38/​105 (1983), 38/​107 (1983) and 40/​103 (1985).

The Commission on the Status of Women  271

(c)  The third phase: women’s rights, empowerment, and gender mainstreaming i. The Nairobi Conference The strengthening of its mandate enabled the CSW to play a full role in the preparations for the third women’s conference, held in Nairobi in 1985, and in negotiating the first draft of its final document. The conference was the first such event with mass participation by African and other Third World women. Moreover, women headed 140 out of 157 governmental delegations, and over 15,000 activists attended the parallel NGO forum. These activists and officials brought to the fore their perspectives and critiques of development policies, calling for structural transformation of societies, from the household to the global system, and an end of all inequalities, including those based on gender, class, and race, within and between countries.82 The consensus on the final document reached at the conference transcended earlier divisions and embodied new understandings of the situation of women globally, demonstrating the sophistication and leverage reached by the transnational women’s movement. The document, entitled Forward-​Looking Strategies for the Advancement of Women, initiated a new conceptual shift by introducing ‘gender’ as a tool of analysis and linking women’s secondary status to the failure to achieve the objectives of development and peace. It acknowledged the diversity of women, problematized international power differentials, militarism and racism, defined ‘development’ as more than economic growth and ‘peace’ as not just absence of war, and brought up violence within the family as an issue to be considered. Equality, development, and peace were now viewed broadly and as interrelated and interdependent issues that could not be tackled separately but necessitated a comprehensive approach across all sectors of the international system and with the full participation of women as both agents and beneficiaries. Another significant result of the conference was the recognition of the need for better institutional coordination and stronger monitoring mechanisms.83 With an expansion in its mandate in 1987, the CSW was placed at the centre of the conference follow-​up process and was entrusted with the main responsibility for monitoring, review, and appraisal of implementation of the Forward-​Looking Strategies. The Commission started to meet annually, instead of biennially, and supported further research and theoretical analysis through expert meetings, seminars, and the review of a periodic survey on the role of women in development.

82 On this point see M Snyder, ‘The Politics of Women and Development’ in A Winslow (ed), Women, Politics, and the United Nations (Westport: Greenwood Press, 1995). 83 Report of the World Conference to Review and Appraise the Achievements of the UN Decade for Women, Nairobi, 15–​26 July 1985 (A/​CONF.116/​28/​Rev.1 (UN Publication E.85.IV.10). The CSW held a special session in 1987, at which proposals for strengthening its mandate as well as for system-​wide planning were discussed. The report of the session is in E/​1987/​15-​E/​CN.6/​1987/​6; the Commission’s new role was subsequently endorsed in GA Res.42/​62 (1987) and 43/​101 (1988), and ESC Res.1987/​22 and 1988/​22.

272  Zehra F Kabasakal Arat ii. Violence against Women and ‘Gendering’ of Human Rights In the 1990s, the language of ‘rights’ was brought back into the conceptual framework of the CSW, though not in the formal sense of earlier years; rather, the objective was to reinterpret international human rights law from a gender perspective and to promote the adoption of protection mechanisms for women. At the same time, key agencies within the international human rights system, namely the CHR with its subsidiary machinery, the human rights treaty bodies, and the Office of the High Commissioner, were asked to address gender in their deliberations and reporting. The logic of the UN reform, with its emphasis on ‘comparative advantage’, streamlining and coordination, together with the reluctance of many states to increase the number and power of human rights mechanisms, helped promote the adoption of this strategy. So did the fact that a number of prominent human rights NGOs recognized the validity of gender-​ based critiques and established gender units. These efforts brought together different perspectives and constituencies of feminism and human rights activism and facilitated their access to the human rights machinery. The efforts to ingrate a gender perspective to the work of the human rights bodies gained momentum with the preparations for the World Conference on Human Rights, held in Vienna in 1993. During the preceding year, world-​wide activism by women’s groups pressed for the inclusion of women’s human rights, and in particular the issue of violence, in the agenda of the conference, which had been drafted initially without much thought for women. The campaign was able to build on existing networks already active on the issues of domestic violence and sexual slavery, and it gained considerable governmental attention against the background of conflict in Bosnia that involved the use of mass rape as a weapon of war.84 A resolution adopted by the CSW at its 1992 session drew an explicit link between the advancement of women and human rights. The resolution called upon the Preparatory Committee for the Conference to take into account the existence of discrimination against women and in particular the global problem of violence, which was recognized—​also for the first time—​as a violation of human rights.85 The CSW defined different forms of violence and spelled out the actions to be taken by states and the UN system in the Declaration on the Elimination of Violence against Women, finalized at its 1993 session and adopted by the GA the same year.86 For its part, the CEDAW committee had prepared the ground by adopting a general recommendation that considered various forms of violence, whether committed by public or private actors, as discrimination within the meaning of the Convention.

84 K Tomasevski, Women and Human Rights (Atlantic Highlands, N.J.:  Zed Books, 1993) 135; E Friedman, ‘Women’s Human Rights: The Emergence of a Movement’ in J Peters and A Wolper (eds), Women’s Rights, Human Rights: International Feminist Perspectives (New York: Routledge, 1995); S E Merry, Human Rights and Gender Violence (Chicago: University of Chicago Press, 2006). 85 CSW Report, E/​1992/​24, draft res. VII, adopted as ESC res. 1992/​20. It is interesting to note that violence in the family had been addressed as a social problem, and not a rights issue, in earlier documents of the Commission. Still, in 1985, the Forward-​Looking Strategies adopted by the Nairobi conference had considered violence as an ‘obstacle to the achievement of peace’. 86 Declaration on the Elimination of Violence against Women (1993), G.A. res. 48/​104, 48 UN GAOR Supp. (No. 49) at 217, U.N. Doc. A/​48/​49 (1993). CSW Report, E/​1993/​27, draft resolution II, Annex.

The Commission on the Status of Women  273 The CEDAW Committee also called on the Vienna Conference to examine the issue of women’s human rights, in particular the relationship between the provisions of the various human rights instruments.87 For the first time, the CHR also condemned violence and human rights violations directed specifically against women and decided to take initial steps to integrate the rights of women into the mechanisms within its purview.88 The World Conference on Human Rights, held in Vienna in June 1993, showed that women’s organizations had achieved political power beyond their traditional areas of action. It was noted that over 1,500 NGOs from all over the world, among whom ‘women were the best organised and most visible group’, had attended the conference and that ‘their message that women’s rights are human rights was heard by all governments’.89 NGOs’ influence at Vienna provided an important model for successful organizing and lobbying at the other global conferences held in the 1990s and later.90 The Vienna Conference affirmed that ‘the human rights of women and of the girl child are an inalienable, integral and indivisible part of universal human rights’ and declared that ‘full and equal participation’ of women in all aspects of life and eradication of sex-​ based discrimination are ‘priority objectives’ of the international community.91 It called for the integration of the human rights of women and their equal status into the mainstream of UN system-​wide activity, recommending greater coordination between the various organs dealing with human rights, the advancement of women, and development. Most important, the Conference endorsed a proposal for an optional protocol to the CEDAW convention to enable review of complaints, along with another proposal for the CHR to appoint a special rapporteur on violence against women.92 Both proposals were subsequently adopted and implemented, for the first time creating machineries and avenues for action in response to complaints of human rights violations, whether submitted by individuals or organized groups. The Special Rapporteur on Violence Against Women, first appointed in 1994, was also given broad authority to receive information from all sources, to engage in fact-​finding, including through field missions, and to recommend remedial action. The Special Rapporteur, reporting to the CHR, is not directly linked to the CSW, but it liaises with the Commission, the committee that monitors the CEDAW and other related UN bodies.93

87 CEDAW, Eleventh Session (January 1992), General Recommendation 19 and Suggestion 3, A/​47/​38. 88 CHR/​res. 1993/​46. 89 International Women’s Rights Action Watch, The Women’s Watch, 7/​1 (July 1993). See also Elisabeth Friedman. 1995. ‘Women’s Human Rights: The Emergence of a Movement’ in Peters and Wolper, eds. 90 The World Conference on Population and Development in Cairo (1994), the World Summit on Social Development in Copenhagen (1995), the Fourth World Conference on Women in Beijing (1995), as well as the follow up meetings of the last conference held in New  York:  Beijing+5 (2000); Beijing+10 (2005); Beijing+15 (2010). 91 Vienna Declaration and Program of Action, A/​CONF.157/​23, 12 July 1993, para 18. 92 Report of the World Conference on Human Rights, Vienna Declaration and Program of Action, A/​CONF.157/​ 24,  I/​III. 93 Rhadika Coomarswamy (Sri Lanka) was first appointed for a three-​year term, following a CHR resolution (E/​ CN.4/​1994/​45) that created the position, and, with renewed appointments, served until 2003. She was succeeded by Yakin Ertürk (Turkey, August 2003–​July 2009), Rashida Manjoo (South Africa, August 2009–​July 2015), and Dubravka Šimonović (Croatia, since August 2015). Their thematic and country reports can be accessed at http://​ www.ohchr.org/​EN/​Issues/​Women/​SRWomen/​Pages/​SRWomenIndex.aspx (Accessed 5 October  2019).

274  Zehra F Kabasakal Arat iii. The Beijing Conference (1995) Building on the Nairobi conference and a series of global post-​Cold War meetings that involved redefining international approaches to social and economic development,94 the Beijing conference forcefully rejected the notion that women’s issues could be addressed through sector-​specific concepts and mechanisms. With 17,000 official participants, including high-​level delegations headed mostly by women from every world government, and some 30,000 NGO activists in the parallel forum, it was the largest world conference ever. The conference was preceded by intense NGO activism around the main themes under discussion. The final document of the conference, the [Beijing] Declaration and Platform for Action, was drafted by the CSW and further refined in a series of regional meetings with wide participation by women’s groups.95 As has been the practice in all UN conferences, governments negotiated the drafts but the content of drafts still reflected the increasing influence and sophistication of the transnational women’s movement. The Beijing Declaration and Platform for Action (the Platform from here on)—​which has been labelled ‘an agenda for women’s empowerment’—​called for ‘removing all the obstacles to women’s active participation in all spheres of public and private life through a full and equal share in economic, social, cultural and political decision-​making’. It also stated that a ‘transformed partnership based on equality between women and men is a condition for people-​centred sustainable development’.96 The Platform was substantially different from the earlier conference documents; instead of addressing each main goal of the UN Decade on Women (i.e., equality, development, peace) separately, the Platform focused on gender discrimination and was structured around twelve ‘critical areas of concern’. The Platform’s use of ‘gender’, which refers to socially constructed identities, as distinct from ‘sex’, aimed at identifying the relationships of inequality in each issue-​area and generating recommendations for ‘fundamental change’ that went well beyond the earlier calls for ‘the integration of women’.97 The use of human rights language, and in particular the linkage to CEDAW and other instruments, placed this effort in a normative context that raised its significance to being an obligation of governments and other actors.98 The twelve critical areas, identified for strategic intervention but seen as interrelated and interdependent, include the following: the increase of poverty and its burden on women; inequalities in education, training and health care; violence against women; the effects of armed conflict; inequalities in economic structures and policies, in access 94 World Summit for Children, New York (1990); UN Conference on Environment and Development, Rio de Janeiro (1992); World Conference on Human Rights, Vienna (1993); International Conference on Population and Development, Cairo (1994); World Summit for Social Development, Copenhagen (1995). 95 Report of the Fourth World Conference on Women, Beijing, 4–​15 September 1995 (A/​CONF.177/​20/​Rev.1). 96 Report of the Fourth World Conference on Women. 97 On this point, see the discussion in a report of the Secretary-​General on ‘Implementation of the Outcome of the Fourth World Conference on Women’, A/​51/​322. 98 For a comparison of the Platform with the provisions of CEDAW, see K Timothy and M Freeman, ‘The CEDAW Convention and the Beijing Platform for Action: Reinforcing the Promise of the Rights Framework’ H.  Humphrey Institute of Public Affairs, University of Minnesota, February 2000. http://​www1.umn.edu/​ humanrts/​iwraw/​Freeman-​Timothy.html (Accessed 5 October 2019).

The Commission on the Status of Women  275 to resources and in the sharing of power and decision-​making; insufficient mechanisms at all levels to promote the advancement of women; lack of respect for, and inadequate promotion and protection of human rights of women and girl children; inequalities in management of natural resources and safeguarding of the environment. In line with the gender approach, the Platform also devoted attention to men and called for their involvement in transforming relationships with women. Despite the efforts of the CSW and women’s groups, some conservative groups and government delegations managed to block references to some other critical areas of concern such as gender identity, sexual orientation, sexual freedoms, and access to abortion.99 With regard to implementation, the Platform assigned the primary responsibility to national governments, calling for commitment and action at the highest political level, but also stressed the need for follow-​up by the entire international community and civil society, including NGOs and the private sector. It stressed the need for a transformed institutional structure with strong and clear mandates, a commitment to the norms and standards of equality, and the necessary authority, resources and accountability. It also called for the promotion of an ‘active and visible’ policy of ‘gender mainstreaming’ in the monitoring and evaluation of policies and programmes by all relevant actors.100 However, the Platform made it clear that the mainstreaming strategy did not exclude, but in fact required, strengthening of the existing mechanisms and instruments specifically devoted to women, which could act as catalysts and monitor developments at all levels. The impact of the Beijing conference and other global conferences of the 1990s can hardly be overestimated, as they stimulated policy reviews at national, regional and international levels to incorporate the gender-​based approach, and the establishment of new mechanisms that in turn amplified possibilities for networking and action. The change was facilitated and accelerated by the reform process taking place within the entire UN. Although an analysis of these transformations is beyond the scope of this chapter, we can simply note that ‘women’ started to appear on the agenda of practically every agency and organization.101 Key institutions responsible for development assistance, such as the World Bank and the Organization for Economic Cooperation and Development, established high-​level gender offices, reformulated their lending policies, and launched new research and other initiatives.102 The European Community gave formal legal status to gender mainstreaming with the Amsterdam Treaty, which made equality between women and men an explicit task of the Community, and adopted a new Community programme for integrating gender into all policies, measures and activities of the European Union and its Member States.103 The Organization for Security 99 United Nations and the Advancement of Women, above n 17, 59. 100 The Platform was endorsed in GA Res.50/​203 (1995). 101 See E Hafner-​Burton and M Pollack, ‘Mainstreaming Gender in Global Governance’ (2002) 8 European Journal of International Relations 3, 339–​73. 102 Information can be found at http://​www.worldbank.org/​en/​topic/​gender and http://​www.oecd.org/​dac/​ gender-​development/​(Accessed 5 October 2019). 103 Reports on implementation actions by the European Commission can be found at http://​ec.europa.eu/​social/​search.jsp?langId=en&menuType=basic (Accessed 5 October 2019).

276  Zehra F Kabasakal Arat and Cooperation in Europe and the Commonwealth Secretariat recognized the importance of applying a gender perspective in their work for democratization and peace building, and established special mechanisms for this purpose.104 Issues of gender in armed conflict came to the fore when rape was recognized as a war crime in the statutes of the ad hoc tribunals for the former-​Yugoslavia and Rwanda and ultimately the Statute of the International Criminal Court.105 For the first time, the Security Council met with representatives of women’s groups and discussed measures for the protection of women in armed conflict, and issued a resolution that called for women’s participation in preventive diplomacy, peacekeeping and peace building.106 Within the UN bureaucracy, the Secretary-​General appointed a high-​level Special Adviser on Gender Issues and established an Inter-​Agency Committee on Women and Gender Equality for periodic consultations among agencies and departments, each of which also established gender units or focal points tasked with mainstreaming in their respective areas.107 At the national level, governments started to adopt national action plans to implement the Platform.108 iv. A Renewed Role for the CSW These brief indications show that the environment in which the CSW operates has grown immeasurably more complex and broader than in its earlier periods, with an array of governmental and non-​state actors operating at international, regional, sub-​ regional and national levels, as well as an increasing number of individual experts. Nonetheless, the CSW’s traditional role as the only permanent international forum for policy discussion about women’s issues and exchange of experiences has been reaffirmed repeatedly. Following the Beijing conference, the CSW was mandated to play the central advisory role to ECOSOC with regard to monitoring, reviewing and appraising implementation and as a catalyst for gender mainstreaming within the UN system, as well as in improving system-​wide coordination and identifying new issues and trends. It was also made part of a three-​tiered mechanism with ECOSOC and the GA, which would play the primary role in the overall policy-​making and follow-​up.109 The other functional commissions of ECOSOC have been similarly mandated with regard to the global conferences held in their respective areas of competence, creating a complex, interlinked and multilevel framework that is seen as ‘a global partnership for development’. However, sporadic attempts to assign the CSW the authority to address

104 http://​www.osce.org/​gender/​26403 (Accessed 5 October 2019). 105 Rome Statute for the International Criminal Court, A/​CONF.138/​9. For each annual ‘Gender Report Card’, see Women’s Initiatives for Gender Justice, http://​4genderjustice.org/​?s=gender+report+card (Accessed 5 October 2019). 106 See UN press releases SC/​6937, 6939 and 6942; Security Council resolution 1325(2000). 107 The Interagency Committee was later renamed Interagency Meeting on Women and Gender Equality (IAMWGE) but ultimately merged into UN Women. 108 For example, see national action plans and activities of countries in the Asia-​Pacific region, https://​ asiapacific.unwomen.org/​en/​focus-​areas/​peace-​and-​security/​national-​action-​plans (Accessed 5 October  2019). 109 GA Res.50/​203; ECOSOC res. 1996/​16.

The Commission on the Status of Women  277 human rights violations by governments have not succeeded. (This issue is discussed further at the end of the chapter under problems and prevailing issues.) Monitoring, review, and appraisal of the Beijing Platform for Action have been an ongoing and complex process. Following a thorough review by the CSW of its methods of work, ECOSOC in 1996 decided that the CSW should assume an integrated ­approach to the advancement of women by employing the framework of a coordinated follow-​ up to the major international conferences of the 1990s. It also mandated a new ­multi-​ year work program structured around a focused and thematic review of the critical areas of concern leading up to comprehensive five-​year appraisals.110 As mentioned earlier, the format of CSW sessions was also restructured in order to allow for in-​depth discussion of themes and formulation of agreed conclusions. Much of the effort made during the late 1990s concentrated on elucidating the meaning of ‘gender’ and ‘gender mainstreaming’ and their policy implications in different contexts and issue-​areas. In 1997, ECOSOC adopted the CSW’s agreed conclusion and offered a working definition of gender mainstreaming: Mainstreaming a gender perspective is the process of assessing the implications for women and men of any planned action, including legislation, policies or programmes, in all areas and at all levels. It is a strategy for making women’s as well as men’s concerns and experiences an integral dimension of the design, implementation, monitoring and evaluation of policies and programmes in all political, economic and societal spheres so that women and men benefit equally and inequality is not perpetuated. The ultimate goal is to achieve gender equality.111

A number of comprehensive publications and electronic databases have been launched to facilitate the review and to help diffuse the new approaches internationally.112 All of these developments have established a broad participatory model involving communication with, and input by, all relevant actors, from grassroots organizations to government representatives and international institutions. As States have the primary responsibility for the implementation of the Platform for Action, much attention has been devoted to the development of national strategies, legislative measures, and capacity building at the national level. At the CSW’s request, government action plans and responses to a questionnaire—​often prepared in cooperation with national machineries for women, NGOs, and UN agencies—​were analysed in a comprehensive review paper by the Secretariat.113 The review did not entail country-​specific information but was rather a general assessment of trends, experiences and obstacles. Innovatively, however, 110 ECOSOC res. 1996/​6. 111 ECOSOC Agreed Conclusions on Gender Mainstreaming (1997/​2), A/​52/​3, Chapter 4. 112 These include: The World’s Women, a compilation by the UN Statistical Office issued in five-​year intervals, starting in1995, http://​unstats.un.org/​unsd/​demographic/​products/​Worldswomen/​WW2010pub.htm; a new report, Progress of the World’s Women, initiated by UNIFEM in 2000; and Womenwatch, an electronic database and gateway to gender units throughout the UN system, http://​www.un.org/​womenwatch. 113 See ‘Review and Appraisal of the Implementation of the Beijing Platform for Action’, Report of the Secretary-​ General, E/​CN.6/​2000/​PC/​2.

278  Zehra F Kabasakal Arat individual government reports are periodically posted on the Web for review by interested actors.114 Additionally, the committee that oversees the implementation of the CEDAW decided to link the implementation of the Platform for Action to the reporting system under the Convention.115 In another significant initiative, some 10,000 individuals (including gender equality advocates, researchers, government representatives, and members of civil society organizations) started to participate in a number of online working groups on the critical areas of concern.116 The CSW was also involved in reviewing the implementation of the Platform by the UN system, the main vehicle for which is the System-​Wide Medium-​Term Plan for the Advancement of Women.117 Initiated after the Nairobi conference as a plan for women and development, the plan was later renamed and restructured in order to take into account the goals of equality and peace.118 The Commission has commented on successive versions of the plan, but it was not mandated to monitor progress on its implementation until 1993.119 The main mechanism for preparation and discussion of the plan is the Inter-​Agency Meeting on Women and Gender Equality, established after the Beijing conference, which has an input into the CSW sessions. However, the impact of the plan and of the Inter-​Agency Meeting has been limited, and the CSW did not play a strong role in this regard. The quinquennial assessments indicate that despite considerable progress at the level of commitment and in implementing a broad range of activities under the plan, a number of obstacles had been encountered. Problems identified in 2000—​‘uneven understanding of the implications of gender factors; failure to integrate gender fully into all mechanisms; lack of indicators to assess progress made in gender integration; lack of data disaggregated by sex; institutional constraints; and lack of staff capacity’.120 The periodic appraisals of the implementation by states evince significant progress in terms of policy formulation and normative and institutional development, both at the governmental and non-​governmental levels. However, they also note that in many countries gender equality continues to be seen as ‘peripheral to government concerns’, and implementation of commitments suffers from absence of specific targets and monitoring and accountability measures, as well as insufficient resources. Furthermore, they point to the persistence of serious obstacles due to institutionalized gender discrimination, cultural and social norms that devalue women, and a backlash against women’s empowerment, aggravated by political and economic crises and conflicts in many countries.121 114 See, https://​www.unwomen.org/​en/​csw/​csw64-​2020/​preparations#national-​level-​reviews (Accessed 5 October 2019). 115 The CEDAW report, E/​CN.6/​1999/​PC/​4,  Annex. 116 The working groups are summarized in E/​CN.6/​2000/​PC/​CRP.1. 117 The plan covering the period 1996–​2001 is in document E/​1996/​16; comments by the CSW are appended to its resolution 40/​10 of 22 March 1996. A new plan covering the period 2002–​2005 was discussed at the 2001 session (E/​CN.6/​2001/​4; CSW res.45/​3). 118 ESC res. 1988/​59. 119 ESC res. 1993/​16. 120 E/​CN.6/​2000/​3. 121 E/​CN.6/​2000/​PC/​2; E/​CN.6/​2005/​2; E/​CN.6/​2010/​2.

The Commission on the Status of Women  279 An increasingly stressed point in these assessments has been the need to go beyond conceptualization and policy formulation, and to develop stronger implementation and accountability mechanisms, by setting specific benchmarks and time-​bound targets and allocating adequate resources.122 A number of NGOs, on the other hand, have repeatedly noted that governments are not willing to adopt the kind of accountability mechanisms necessary to accelerate implementation.123 At its 45th session in 2001, after a series of brainstorming meetings with NGOs, academics, and government representatives, the CSW adopted a new program of work for the 2002–​6 period. The program called for ‘more practical and action-​oriented initiatives and outcomes’ and provided for an annual agenda item to review implementation of gender mainstreaming in the UN system and of strategic objectives in the critical areas of concern. At the CSW’s recommendation, ECOSOC decided both to include a regular sub-​item on gender mainstreaming under its regular agenda item on coordination in order to monitor and evaluate achievements and obstacles, and to consider further measures to strengthen implementation.124 v. From the Millennium Development Goals to the Sustainable Development Goals In 2000, at its Millennium Summit meeting, the UN adopted the Millennium Declaration. The Millennium Declaration highlighted the importance of equal application of human rights to both men and women and implementation of the CEDAW. It also specified eight goals, called the Millennium Development Goals (MDGs), with specific benchmarks to be achieved by 2015 or earlier.125 The MDGs aim to: (1) eradicate extreme poverty and hunger; (2) achieve universal primary education; (3) promote gender equality and empower women; (4) reduce child mortality; (5) improve maternal health; (6) combat HIV/​AIDS, malaria and other diseases; (7) ensure environmental sustainability; and (8) develop a global partnership for development. In 2009, in preparation for the Beijing+15, the CSW held an expert meeting that examined the link between the MDGs and the Beijing Platform for Action. The report noted the lack of progress in meeting the MDGs and stressed the relevance of gender equality not only to the MDGs number 3 and 5 but also to meeting all goals. It concluded that the implementation of policies that address the critical areas of concern of the Beijing Platform of Action and gender mainstreaming can accelerate the achievement of the MDGs.126 The Commission focused on ‘Linkages between implementation of the Beijing Platform for Action and the achievement of the MDGs’ for its 2010 annual session and examined ‘Challenges and achievements in the implementation of the MDGs for women and girls’, at its Fifty-​Eight session.127 122 A number of suggestions in this regard were made in a report by the Secretary-​General, E/​CN.6/​1999/​PC/​2. 123 For example, see Equality Now https://​www.equalitynow.org/​words_​and_​deeds_​holding_​governments_​accountable_​in_​the_​beijing_​10_​review_​process (Accessed 5 October 2019). 124 ESC res. 2001/​41. 125 A/​RES/​55/​2. 126 EGM/​BPfA-​MDG/​2009/​REPORT. http://​www.un.org/​womenwatch/​daw/​egm/​impact_​bdpfa/​EGM%20 Report_​BPFA-​MDG_​FINAL.pdf (Accessed November 8, 2012). 127 See the multiyear program and 58th session at https://​www.unwomen.org/​en/​csw/​previous-​sessions (Accessed 5 October 2019).

280  Zehra F Kabasakal Arat Although some progress has been noted (eg, in reducing maternal mortality rate), the benchmarks set for 2015 were far from being met.128 Thus, the UN carried them to a new phase and on September 25, 2015 adopted a more expansive list of seventeen goals, under the rubric of Sustainable Development Goals (SDGs) with targets to be attained within the next fifteen years.129 Similar to the third MDG, the fifth SDG is set to ‘Achieve gender equality and empower all women and girls’. Thus, the CSW designated ‘Women’s empowerment and its link to sustainable development’ as the primary theme to be covered at its 60th session (14–​24 March 2016), and in preparation, it held an expert group meeting on 2–​4 November 2015.130 vi. UN Women The demand for a high level office to coordinate the UN’s work on women’s issues, which was originally raised by the initial Subcommission in 1946, was met in July of 2010, when the GA passed a resolution, creating the United Nations Entity for Gender Equality and the Empowerment of Women, or simply referred to as UN Women.131 This new agency, which is directed by a newly created Under-​Secretary General, brought under one leadership a variety of agencies that had existed side by side, including the DAW, INSTRAW, UNIFEM, and the Office of the Special Adviser on Gender Issues and Advancement of Women (OSAGI). UN Women is to ensure that the UN system as a whole is committed to furthering the goal of gender equality, both inside and outside the UN organization, and work closely with the CSW.132 The GA elected the former Chilean President, Michelle Bachelet, as the first Under-​Secretary General and Executive Director of UN Women, and assigned her a seat at the Policy Committee. One of Bachelet’s first actions was the publication of the Vision and 100-​ Day Action Plan—​a document detailing the agency’s short-​term plans toward fulfilling its mandate.133 This action plan revolved around five priorities:  expanding women’s voices, leadership and participation; ending violence against women; strengthening implementation of women’s peace and security agenda; enhancing women’s economic empowerment; and making gender equality priorities central to national, local and sectoral planning, budgeting and statistics. Speaking on the 70th anniversary of the UN, her successor Phumzile Mlambo-​Ngcuka reiterated the priorities: Gender equality, the empowerment of women and human rights of women and girls must be a central priority in all aspects of the post-​2015 development agenda . . . Decades of important normative advances at the United Nations have firmly established that

128 See the final report, http://​www.un.org/​millenniumgoals/​2015_​MDG_​Report/​pdf/​MDG%202015%20 rev%20(July%201).pdf (Accessed 18 December 2015). 129 http://​www.un.org/​sustainabledevelopment/​sustainable-​development-​goals/​ (Accessed 18 December 2015). 130 For background and expert papers, see http://​www.unwomen.org/​en/​csw/​csw60-​2016/​preparations/​expert-​ group-​meeting#expertpapers (Accessed 18 December 2015). 131 A/​RES/​64/​289. 132 See paragraph 67(a) in A/​RES/​64/​289, as well as http://​www.unwomen.org/​about-​us. 133 UN Women. 2011. https://​news.un.org/​en/​story/​2011/​01/​365022-​new-​un-​womens-​head-​lays-​out-​100-​ day-​action-​plan (Accessed 16 January 2020).

The Commission on the Status of Women  281 gender equality and the realization of women’s and girls’ human rights are fundamental to achieving human rights, peace and security, and sustainable development.134

7.4  Problems and prevailing issues The Commission has been a key player in the promotion of women’s rights and issues at the UN and beyond. However, it has encountered several problems and obstacles since its inception, and some of these persistent problems curb its effectiveness and reach. The ideological disagreements among member states have often influenced the work of the CSW, particularly during the Cold War and in relation to the controversies over decolonization.135 While ideological competitions, especially during the Cold War years, sometimes helped facilitate a pro-​women agenda, and the differences might have diminished in some areas over the years, conservative governments and NGOs continue to use all their leverage to block efforts to include women’s sexual freedoms, the right to have full control over their body, and reproductive rights from discussions, policy documents, and treaties. The structural causes of economic problems continue to be ignored, and neoliberal economic policies set further obstacles to economic rights, if not violate them, and consequently prevent women from enjoying many other rights. Most important, there is the concern that the overall commitment to gender equality by member states and the UN bureaucracy has been weak. Many member states, including the influential United States, followed a strategy that can be described as ‘laud support for women’s rights’ but ‘refusal to commit to the machinery of international treaties’.136 The United States has also served as an engine of neoliberal policies and a narrow understanding of human rights that is limited to civil and political rights. This narrow approach to human rights is also employed by some women’s groups and prevailed despite the emergence of different feminist voices. As I return to this point on ideological framework in the last section of the chapter, here I highlight some institutional problems encountered by the CSW. First, the CSW has not enjoyed the level of support and recognition of other UN agencies, especially compared to the CHR. The CHR not only has the authority to review the human rights conditions of all member states (especially since the introduction of the Universal Periodic Review) but also received a more favourable treatment from the ECOSOC. The CSW has also been subject to much stricter control on the part of ECOSOC than the CHR with regard to both its agenda and resolutions, and its recommendations have been rejected on repeated occasions or returned to it for further consideration, which has been a rare occurrence in other bodies. Traditionally, the ECOSOC only ‘took note’ of the CHR agenda, while it ‘approved’ that of the CSW. In 134 P Mlambo-​Ngcuka, ‘The UN at 70 and the Ongoing Quest for Gender Equality’ (2015) 52 UN Chronicle 1–​2. http://​unchronicle.un.org/​article/​un-​70-​and-​ongoing-​quest-​gender-​equality/​ (Accessed 18 December 2015). 135 For some problems in the earlier years, see Galey, above n 28. 136 H Laville, ‘Protecting Difference or Promoting Equality? US Government approaches to women’s rights and the UN Commission on the Status of Women, 1945–​50’ (2007) 5 Comparative American Studies 3, 291–​305, 303.

282  Zehra F Kabasakal Arat 1948, several CSW members protested that ECOSOC members had ‘displayed a lack of seriousness’ vis-​a-​vis their Commission. A proposal to embody the protest in a resolution was withdrawn after the Chair of the Commission reported that she had already addressed a letter to the ECOSOC President deploring such an attitude.137 While this sort of blatancy is not present today, the relative weakness of the CSW can be attributed not only to the lack of serious commitment to the advancement of women but also to the fact that the CSW membership has been overwhelmingly female and lacked high level diplomats. Women serving on the CSW have often appeared to command less than full support from their governments or have been subject to closer control.138 However, the female membership may also mean a higher level of commitment to the advancement of women,139 especially since a number the Commission members have come from women’s organizations in their own countries. Located at the crucial intersection between the states and the growing feminist movements, the Commission has often served as a space where women could work together and begin to negotiate power relationships from within the formal intergovernmental framework. Commission members have on occasion criticized sex-​based discrimination in their own countries and served as channels for the ideas and proposals of women’s groups. This porosity to civil society, while not unique to the CSW, is more pronounced than in other UN bodies and has become particularly evident in the 1990s. Even in earlier years it is noted that in no other UN organ did NGOs play the active and influential role that they did in the CSW.140 The entrance of more women into government service and the emergence of a strong global women’s movement, which has become increasingly sophisticated in understanding and making use of international mechanisms, facilitated the interaction. Second, the activities of the CSW have been circumscribed largely due to procedural and budgetary limitations. Despite its growing agenda, the CSW sessions have not exceeded three weeks, except at a couple of exceptional junctures.141 From 1970 to 1986, it met only in alternate years, while the average for annual meeting time in the 1980s was eight days. Since the 1990s the Commission has held yearly meetings lasting from ten to fourteen days, with the exception of 1995 and 2000, when the Commission met for twenty-​one days and three days, respectively.142 Starting in the late 1960s, the Commission was under pressure to curtail its agenda, the volume of its documentation, and the number of resolutions addressed to the 137 E/​CN.6/​SR.35 (1948). 138 The CSW had an all-​female membership until 1966, when one male representative was included among the twenty-​one members for the first time. At no time has the CSW had more than a handful of male representatives. Male advisors, however, have often been attached to delegations, and it is common for senior male delegates to participate in meetings when politically sensitive resolutions are voted on. 139 J Humphrey, No Distant Millennium: The International Law of Human Rights (Paris: UNESCO, 1989) 119. 140 Galey, above n 28. 141 Only in 1976 did the Commission meet for a longer period (30 days) in order to complete its work on the Convention on the Elimination of All Forms of Discrimination against Women. 142 UN, Report of the World Conference of the International women’s Year (E/​CONF.66/​34) [1976]; UN, ECOSOC, Report of the Commission on the Status of Women on its Thirty-​Sixth Session (E/​1992/​24 and E/​CN.6/​ 1992/​13) [1992]; UN, ECOSOC, Report of the Commission on the Status of Women on its Thirty-​Seventh Session (E/​1993/​27 and E/​CN.6/​1993/​18) [1993]; UN, ECOSOC, Agreed Conclusions of the Commission on the Status of Women on the Critical Areas of Concern of the Beijing Platform for Action 1996–​2009 (ST/​ESA/​327) [2010].

The Commission on the Status of Women  283 ECOSOC. Its entitlement to summary records of its debates was discontinued in 1979. Similarly, the CSW never spawned the vast array of permanent or ad hoc subsidiary bodies for fact-​finding purposes, which became a familiar feature of the CHR and helped enhance its power and visibility. The CSW has established only sessional working groups, primarily to review communications and to draft new standards, or on an informal basis to expedite its work. The device of appointing special rapporteurs to undertake studies of particularly complex or sensitive issues has also by and large not been duplicated by the CSW, which has relied instead on expert groups convened by the Secretariat and reporting informally. Third, despite recurrent complaints over these limitations and the frequent reliance on extra-​budgetary resources in order to finance regular UN activities for women, the Commission’s work has been consistently underfunded, as has the work of other UN mechanisms dealing with women’s concerns. Efforts to revitalize the CSW in the late 1980s coincided with periods of increasing financial stringency. The problem was brought up with renewed urgency at the Fourth World Conference on Women, held in Beijing in 1995, which called for restructuring of the CSW’s secretariat and the allocation of additional resources from the regular budget. Although the membership of the Commission has been increased and its mandate has been expanded on more than one occasion, the necessary budgetary increases have been modest. While the total United Nations budget has been increasing since its inception, the Commission’s budget shrunk between 1990 and 2010.143 The establishment of the high-​ranking UN Women raised hopes for more funding, but it has been pointed out that ‘UN Women now has the power tools but no electricity. The GA Resolution did not include any assessed contributions from member states, which means that we rely on voluntary contributions’.144 Finally, an ongoing and important procedural limitation of the CSW’s human rights work has been its inability to react to specific complaints on violations of women’s rights and hold states accountable. Although in 1953 ECOSOC requested reports from States parties on the Convention on the Political Rights of Women, the first communication procedure entrusted to the CSW, the Commission did not acquire a formal role under these instruments. Moreover, the system was voluntary and soon lost its specificity as it was extended to all states, whether or not parties to the convention; it was eventually superseded by reporting systems under non-​binding instruments and the various action plans adopted by the world conferences. These reporting systems have been used primarily as data-​gathering exercises, rather than to establish a system of state accountability.145 The question of how to address complaints of violations of women’s rights was brought up several times but never resolved satisfactorily within the Commission. 143 By $9,000. Budget reports prior to the 1990–​1991 biennium report did not include a breakdown on the ECOSOC budget. A/​C.5/​38/​L30 (Part IV); A/​64/​6/​Add.1. 144 A Goetz and N Hudson, ‘Too Much That Can’t Be Said: Anne Marie Goetz in Conversation with Natalie Florea Hudson’ (2014) 16 International Feminist Journal of Politics 2, 336–​46. 145 ESC Res.504E (XVI) requested reports on political rights from states parties to the Convention. The system was expanded to other States in ESC Res.961B (XXXVI)(1963) and was later merged with that under the Declaration on the Elimination of Discrimination against Women, ESC Res.1677 (LII)(1972), which was in turn

284  Zehra F Kabasakal Arat During preparations for the Beijing Conference, the CSW initiated a process of initial drafting in consultation with the members of CEDAW committee, other treaty bodies, and with input requested from governments, inter-​governmental and non-​ governmental organizations. The groundwork laid by the CSW was endorsed at the Beijing Conference, and a working group of the CSW was established to begin formal negotiations on a draft text in March 1997. The Optional Protocol to the CEDAW was eventually adopted by consensus by the GA in October 1999, and came into force in December 2000.146 The Optional Protocol has been widely acclaimed as a breakthrough both because it provides, for the first time, a formal channel for the submission of complaints of violations of women’s human rights, and because its provisions go beyond those of most other human rights treaties by including an inquiry procedure in addition to the communications procedure. Taken together, the Optional Protocol and the work of the Special Rapporteur on Violence against Women are now providing opportunities for international review of allegations of violations of women’s human rights that had long been denied. These possibilities have been amplified as efforts are made to ensure that a gender perspective is integrated into the work of the other treaty bodies, thematic rapporteurs, and subsidiary bodies of the CHR.147 Additionally, the inclusion of a regular item on gender mainstreaming in the agenda of the CHR has created a public forum for NGOs to voice their concerns about specific situations. These positive developments, however, have not completely resolved the question of establishing an effective and comprehensive international recourse mechanism to address violations of women’s human rights. The Optional Protocol, while covering the range of rights protected under the CEDAW, is applicable only to the countries that ratified it, which are likely to remain relatively few and which can also avoid investigation by invoking an escape clause to the inquiry procedure. The Special Rapporteur, for her part, is limited in her mandate to the question of violence; like other thematic rapporteurs, she acts in an individual capacity and is dependent on cooperation by the governments concerned. A report issued by the Secretary General in 2001 acknowledged the limitations of these two mechanisms, as well as the fact that no gender-​ specific human rights violations were forwarded to the CHR. It invited the CSW to revisit the issue of procedures on human rights violations, but no action followed.148 Given the political controversies that have always surrounded the CHR/​Human Rights Council review of communications and the growing trend in the human rights field towards the use of independent experts, Special Rapporteurs and more transparent

merged with the reporting system under the Women’s Decade, ESC Res.1978/​28. For a summary description of the various reporting systems in the earlier periods, see E/​CN.6/​1986/​2 and Add.1 and Corr.1. 146 See Amnesty International, Claiming Women’s Rights: The Optional Protocol to the UN Women’s Convention, March 2001 (AI Index IOR 51/​001/​2001) for historical background and analysis. The official text of the Protocol is in annex to GA res. 54/​4 of 6 October 1999. 147 These efforts have been spelled out in a series of papers published by UNIFEM. See also the annual joint work plans of the Office of the High Commissioner for Human Rights and the Office of the Special Adviser on Gender Issues and Advancement of Women. 148 See E/​CN.6/​2001/​12.

The Commission on the Status of Women  285 mechanisms, it seems rather unlikely that the CSW will be granted any power to discuss and redress specific cases of violation. The efforts appear to be geared toward extending gender mainstreaming to the CHR procedures and the review processes of treaty bodies, whether confidential or public, in a more comprehensive manner. However, incorporating a gender approach into the undertakings of all other human rights mechanisms, other UN organs, and national governance structures has turned out to be a complicated process, involving reinterpretation of concepts, sensitization of all relevant actors, and ongoing input from NGOs and others, which requires sustained political will over a long period of time. In fact, analysts often point to the confusion about the meaning of ‘gender mainstreaming’, as well as the difficulties in monitoring and lobbying multiple agencies as opposed to focusing on women-​specific offices. They see the mainstreaming efforts of most governments and agencies as ineffective and thus changes to be limited to rhetoric only. Some also point out that mainstreaming has meant introducing procedural mechanisms that actually sustain the hierarchal structures and prevent transformational changes toward real equality.149 The Commission’s openness to women’s organizations and movements, combined with the lack of resources, has nonetheless resulted in flexible and sometimes innovative methods of work. Since the end of the Decade for Women in 1985, its agenda has been restructured according to a long-​term program of work linked to the review of implementation of the recommendations made by the world conferences for women, culminating in a final appraisal to feed into the next conference.150 The regular convening of informal expert groups and the use of consultants for brainstorming and preparation of substantive documentation have provided both an avenue for input by feminist scholars and activists and a relatively inexpensive way to supplement the work of an understaffed Secretariat. Substantial additional changes were introduced following the Beijing conference in 1995, with the introduction of an ‘interactive method’ during the CSW session. The ‘general debate’ (or formal statements by government representatives) was shortened, and part of the session was turned into a seminar format, with panel presentations by individual experts on the themes under consideration, followed by discussion with participation by all present, including NGOs and UN agencies. The summary of discussions has then been used for the formulation of action-​oriented recommendations (‘agreed conclusions’) on each theme, with a view to replacing formal resolutions.151 149 M Alston, ‘Gender Mainstreaming and Climate Change’ (2014) Women’s Studies International Forum 47, 287–​94; V Mieke, ‘Displacement and Empowerment:  Reflections on the Concept and Practice of the Council of Europe Approach to Gender Mainstreaming and Gender Equality’ (2005) 12 Social Politics:  International Studies in Gender, State and Society 3, 344–​65; E Prugl and A Lustgarten, ‘Mainstreaming Gender in International Organisations’ in Jaquette and G Summerfield (eds), Women and Gender Equity in Development Theory and Practice: Institutions, Resources, and Mobilisation (Durham: Duke University Press, 2006) 17–​52; F Porter and C Sweetman, Mainstreaming Gender in Development: A Critical Review (Oxfam Gender Series, 2005); F Gaer, ‘Mainstreaming a Concern for Human Rights of Women: Beyond Theory’ in M Agosín (ed), Women, Gender and Human Rights: A Global Perspective (New Brunswick, NJ: Rutgers University Press, 2002), 98–​122; Hafner-​ Burton and Pollack, above n 100; see also ‘Comparative Gender Mainstreaming’ in the special issue of (2005) 7 International Feminist Journal of Politics 4. 150 ESC Res. 1987/​21 and 1987/​24; Report of the CSW, E/​1987/​15. 151 See report of the Secretary-​General on the mandate, methods of work and multi-​year work program of the CSW, E/​CN.6/​1996/​2. Report of the CSW, E/​1996/​26 and E/​1997/​27.

286  Zehra F Kabasakal Arat

7.5  Responding to alternative voices but endorsing liberal feminism The research conducted during the last few decades has brought to light the history of efforts by the global women’s movements for women’s rights, equal citizenship and equal participation in the international sphere.152 When women’s equal rights were formally recognized in the UN Charter and the Commission on the Status of Women was established, those decisions built upon transnational activism that was already over half a century old. Women’s groups had established contacts across various countries from the early days of the abolitionist and suffrage campaigns; they lobbied vigorously at the Versailles conference (1919), influencing the founding documents of the new international organizations, the League of Nations and the ILO. In addition to participating in the work of these organizations, they established new regional and international organizations that eventually offered input into the drafting of the UN Charter. After the establishment of the UN and the CSW, women’s groups took every opportunity to advance women’s rights further, even though they did not always agree on issues to be addressed or prioritized. The CSW has been particularly open to NGO contributions and increasingly sought the expertise of feminists from academia and advocacy groups. Expert papers and panels have been a formalization of this interaction. Consequently, we can see the influence of practically all creeds of feminism in the wording of the UN documents, especially in the final documents of the four world conferences on women.153 Liberal feminism and Marxist feminism were promoted in the CSW by the Western and Eastern Bloc states, respectively, and by international women’s organizations from the very beginning. As other feminist theories, such as radical, socialist, Third World, and environmentalist feminisms, started to be articulated by activists and experts, the UN apparatus began to incorporate their ideas and terminology in its own debates and documents. Women’s reproductive health, the value of women’s unpaid labour, legacy of colonialism, structural adjustment policies, poverty, militarism and other issues, which were deemed ‘political’ and diversion from ‘women’s issues’ by the Western State delegations and liberal feminists, were eventually articulated in the conference documents. Even the intersectionality approach, an approach that has been a part of the feminist debates for some time but came to be known by that name in the 1990s, found its way to the UN meeting rooms and reports.154

152 See for example, A Basu (ed), Women’s Movements in the Global Era: The Power of Local Feminisms (2nd edn, Boulder, CO:  Westview Press, 2017); M Ferree and A Tripp, Global Feminism:  Transnational Women’s Activism, Organizing, and Human Rights. (New York: New York University Press, 2006); V Moghadam, Globalizing Women: Transnational Feminist Networks (Baltimore and London: The Johns Hopkins University Press, 2005); P Antrobus, The Global Women’s Movement: Issues and Strategies for the New Century (London: Zed Books, 2004); N Berkovitch, From Motherhood to Citizenship—​Women’s Rights and International Organizations (Baltimore: Johns Hopkins University Press, 2002); L Rupp, Worlds of Women: The Making of an International Women’s Movement (Princeton: Princeton University Press, 1997). 153 See Arat, above n 26. 154 For example, see E/​CN.4/​2002/​81. Intersectionality has its roots in various feminist theories that criticize treating ‘women’ as a homogeneous category and ignoring how women may experience subordination and privilege at the same time (as their gender puts them at a disadvantage, some women may enjoy the benefits of their

The Commission on the Status of Women  287 Despite the active involvement of the Eastern Bloc countries in the CSW and the incorporation of the language employed by different feminist groups into the UN conference documents and several reports, the liberal feminist approach has prevailed and marked the UN’s gender outlook. Recognizing women as rational beings who are on a par with men if given the same opportunities, liberal feminism argues for granting the rights enjoyed by men to women as well. Thus, it demands equal opportunities for women’s education, electoral rights, economic participation, equal terms in marriage, equal access to the public domain, and integration of women into all male institutions. It relies on gradual change through legislative reform and anti-​discrimination laws. Most important, it treats women as a homogeneous group that suffers mainly from gender oppression and seeks integration of women into male dominant domains and structures without contesting the foundation and function of those structures. This liberal feminist approach is particularly evident in the text of CEDAW and the aggregate indicators that are employed to assess the third MDG, ‘empowerment of women’. Although sponsored by the Soviet delegation, the main provisions of CEDAW are in tune with the liberal feminist notion of gender equality. Requiring States parties to ensure that women have ‘the same rights [as men]’ and enjoy those rights ‘on equal terms with men’, or ‘on a basis of equality of men and women’, it takes man as the measure, the norm. Although it recognizes certain conditions specific to women such as pregnancy and lactating, or more likely to be experienced by women such as trafficking and prostitution, it fails to address a number of concerns such as gender-​based violence, reproductive rights, sexuality, and sexual freedoms. There is no effort to tackle the structural causes of women’s discrimination and problems, and no acknowledgement of the diversity of women, except for a reference to rural women. The Millennium Summit Declaration, which sets gender equality and women’s empowerment as an MDG does not provide a conceptual definition of empowerment, but the progress reports on the MDGs operationalizes ‘empowerment’ by employing three indicators: (1) male-​female enrolment ratios in primary, secondary and tertiary education; (2) women’s share in non-​agricultural wage employment; and (3) the percentage of seats held by women in national parliament. All three indicators seek gender equality by integrating women into the three spheres without any acknowledgement that class, race, ethnic and other hierarchal structures can establish different gender equilibriums for people in different strata (eg, 50 per cent representation of women in parliament may include mainly upper class white women) or the conditions under which women might enter the workforce (eg, long hours, inadequate wages, unhealthy work environment, and no labour protection).155

race, class or other advantages). Intersectionality approach stresses multiple dimensions of inequality and oppression and can be defined as ‘an analytical tool for studying, understanding and responding to the ways in which gender intersects with other identities and how these intersections contribute to unique experiences of oppression and privilege’ (Symington 2004, 1). 155 See Arat, above n 26, for a detailed discussion of problems with these indicators, as well as for possible explanations for the persistency of liberal feminism within the UN apparatus.

288  Zehra F Kabasakal Arat It is also important to note that while the UN documents, especially those adopted at the Nairobi and Beijing conferences, acknowledge the problems of women living in developing countries, including lack of development, poverty, international power differentials and structural adjustment policies, the economic system that generates and sustains these problems is not named or identified as a cause. In other words, the desire to move beyond the ‘integrative’ approach has remained rhetorical. One may view pointing out these omissions as too critical, especially in the face of the strong resistance to granting women equal rights displayed over the years. After all, between the two world wars, the international approach to women was paternalistic and protective. Even when the status of women was recognized as an issue that deserved international attention, for over thirty years, action was limited to the gradual granting of legal rights in the public sphere, such as the right to vote and the right to a nationality. They also focused on promoting development projects for women, which did not necessarily improve women’s economic well-​being and status. The transnational women’s movements have waxed and waned and their strategies have changed over the years, but the majority of them have ultimately reached certain guiding principles: the inherent right of all human beings to develop their own potential regardless of sex, race, ethnic background, class, or other status; social, economic, and political rights for women as necessary elements of a just society; and a world of peaceful, cooperative and non-​hierarchal international relations aimed at ending militarism and promoting nonviolence in both the public and private spheres. However, governments have been slow to subscribe to this more comprehensive vision, and even more reluctant to act on it. With all its limitation, it was only with the adoption of the CEDAW convention in 1979 that governments showed some commitment to taking steps towards change, and only in the 1990s that they recognized the complexity of women’s issues and their centrality to different aspects of life. However, the measures accepted and integrated into treaties are still ignored by the States parties, and other issues, such as women’s sexual freedoms and reproductive rights, are kept out off the agenda and out of reach of international jurisdiction by invoking arguments of religion, culture, or tradition. Not only have the relatively high levels of commitment to equality on paper not been observed in effective policy formulation and implementation, but the rise of militarism, fundamentalism, and neoliberal economic policies of the last three decades overshadowed the normative developments regarding human rights and advancement of women.156 As an instrument created at the insistence of women’s organizations but still a part of an intergovernmental framework, the CSW throughout its history has reflected both the potential for change and the obstacles facing it. It was not intended as a strong mechanism initially and did not develop into one later. However, its influence lies in its function as a venue for norm development, policy guidelines and organizational 156 The analysis of these tend to be presented under the heading of globalization, see articles by R Howard-​ Hassmann, Z Kabasakal Arat, and S Hertel in Journal of Human Rights (December 2011); S Peterson and A Sisson Runyan, Global Gender Issues in the New Millennium (3rd edn, Boulder, CO: Westview Press, 2010).

The Commission on the Status of Women  289 networking by women at all levels, from government representatives to grassroots activists. Their perspectives have now permeated the international system, even though implementation will probably continue to be frustratingly slow and full of obstacles. The advocates of women’s rights have learned to be patient and how to negotiate the UN bureaucracy. There is partial victory in the normative development and rhetorical acceptance. The enduring challenge is figuring out how to move from rhetoric to implementation and how to work within the current institutional constrains to achieve structural change—​to develop a transformative strategy that tackles the root causes of discrimination and oppression.

8 The Permanent Forum on Indigenous Issues Madeleine Heyward

8.1  Introduction The Permanent Forum on Indigenous Issues (PFII) is the first permanent United Nations body in which state and non-​state nominees hold equal status. It was established to fill a significant gap in the UN’s work with respect to indigenous peoples, which the Secretary General described as ‘the striking absence of a mechanism to ensure regular exchange of information among the concerned and interested parties—​ Governments, the United Nations system and indigenous peoples—​on an ongoing basis’, and the lack of ‘mechanisms in the United Nations organizations which give the nominated representative of indigenous organizations or peoples an opportunity to provide expert advice or take part in decision-​making’.1 Conceived in the late 1980s within the UN Working Group on Indigenous Populations (WGIP)—​a subsidiary body of the Commission on Human Rights’ Sub-​ Commission on the Prevention of Discrimination and the Protection of Minorities with broad informal indigenous participation2—​the idea of a permanent UN body with indigenous membership was taken up more broadly in 1993 by the World Conference on Human Rights and then the UN General Assembly.3 A review of existing mechanisms by the Secretary General concluded definitively that existing arrangements were not adequate to accommodate ‘full and effective involvement of indigenous people in the planning, implementation and evaluation of projects affecting them’.4 Following a series of workshops and meetings of an intersessional working group of the Commission on Human Rights, it was determined that the new mechanism would take the form of an advisory body to the Economic and Social Council (ECOSOC).5 The decision to place the PFII directly under ECOSOC allowed it a broad scope of work, not limited to the human rights machinery in Geneva. Its mandate is ‘to discuss 1 Review of the Existing Mechanisms, Procedures and Programmes within the United Nations Concerning Indigenous People:  Report of the Secretary-​General, GA, 51st session, Doc. A/​51/​493, 14 October 1996, 38 (‘Secretary-​General’s Review’). 2 See M Lâm, At the Edge of the State: Indigenous Peoples and Self-​Determination (Transnational Publishers, 2000)  76–​7. 3 Report of the World Conference on Human Rights, Vienna, 14–​25 June 1993: Report of the Secretary-​General, Doc. A/​CONF.157/​24 (Part I), 13 October 1993, Ch III, Section II; GA Res. 48/​163, 18 February 1994. 4 Secretary-​General’s Review, 38. 5 See J Debeljak, ‘Barriers to the Recognition of Indigenous Peoples’ Human Rights at the United Nations’ (2000) 26 Monash University Law Review 159, 187–​94.

292  Madeleine Heyward indigenous issues within the mandate of the Council relating to economic and social development, culture, the environment, education, health and human rights’.6 In fulfilling this role, the Forum is to provide expert advice and recommendations on indigenous issues to ECOSOC, and, through ECOSOC, to UN programmes, funds and agencies; raise awareness and promote the integration and coordination of activities related to indigenous issues within the UN system; and prepare and disseminate information on indigenous issues. The PFII is primarily a product of increasing recognition within the UN system of the need for more focused attention to protect and promote indigenous peoples’ rights—​ full accommodation of indigenous rights within existing human rights mechanisms and instruments ‘remains elusive’, and indigenous individuals and communities across the world continue to experience significant discrimination and social and economic disadvantage.7 Since the adoption in 2007 of the UN Declaration on the Rights of Indigenous Peoples, the first comprehensive and generally applicable international instrument on indigenous rights,8 the PFII has taken an increasingly rights-​based approach across its mandate. The full picture of the impact of this practice is still emerging. In the preliminary analysis that follows, consideration is given to the PFII’s institutional landscape and its strengths and weaknesses as a protector and promoter of human rights, with a focus on implementation of the Declaration.

8.2  A ‘home’ for indigenous peoples at the UN The first UN forum with significant indigenous participation was the WGIP—​a small group of five independent ‘experts’ established by the Commission on Human Rights’ Sub-​Commission on the Prevention of Discrimination and the Protection of Minorities, with a mandate to ‘review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous populations’ and ‘give special attention to the evolution of standards concerning the rights of indigenous populations’.9 To fulfil this mandate, the WGIP took the unprecedented step of allowing representatives of indigenous peoples and organizations not fulfilling the formal requirements of ‘consultative status’ with ECOSOC to participate actively in its discussions. As described by Elsa Stamatopoulou, who became the first Chief of the PFII Secretariat in 2003, the inclusive working method of the WGIP was never formalized in writing, but ‘received the acquiescence of the parent bodies of the Working Group’—​ the Sub-​Commission, the Commission on Human Rights, and ECOSOC—​and was followed thereafter.10 With this ‘open door policy’, participation in the WGIP’s sessions

6 ECOSOC Res. 22, 28 July 2000. 7 D Dorough, ‘Human Rights’ in PFII (2009) State of the World’s Indigenous Peoples 189, 191. 8 GA Res. 61/​295, 13 September 2007 (‘the Declaration’). 9 ECOSOC Res. 34, 7 May 1982. 10 E Stamatopoulou, ‘Indigenous Peoples and the United Nations: Human Rights as a Developing Dynamic’ (1994) 16 Human Rights Quarterly 58, 68–​9.

Permanent Forum on Indigenous Issues  293 grew from around 100 delegates at the first session in 1982, to 790—​including representatives of 267 indigenous peoples’ and human rights organizations—​when it completed the draft Declaration on the Rights of Indigenous Peoples in 1993.11 The decision in 2000 to establish the PFII arose through the internationalization of the indigenous rights movement, catalysed by the WGIP, and was considered a ‘revolutionary change’ in the UN’s institutional architecture.12 The Forum comprises sixteen independent experts—​eight nominated by States and elected by ECOSOC, and eight appointed by the President of ECOSOC on the basis of broad consultations with indigenous organizations.13 The membership is geographically representative,14 and reflects a range of backgrounds and experiences across the government sector, community organizations and academia, with members serving in their personal capacities for three-​ year terms. The PFII’s indigenous representation and its position as a permanent body reporting directly to a core UN organ (rather than, like the WGIP, a working group of a sub-​commission of a subsidiary body of that organ) were considered by many to significantly elevate indigenous issues within the UN hierarchy. At its opening session in 2002, then Secretary General Kofi Annan described the PFII as a ‘home’ for indigenous peoples at the UN.15 The Forum meets for two weeks each year at UN Headquarters in New  York. It has continued the open working method adopted by the WGIP—​attracting many hundreds of indigenous participants from around the world, in addition to representatives of States, UN bodies, and intergovernmental and non-​governmental organizations in consultative status with ECOSOC. Each annual session produces a report and recommendations which are submitted to ECOSOC and distributed to other UN organs, funds, programmes and agencies. The Forum’s annual sessions are provided for within the regular budget of the UN and supported by a Permanent Secretariat at UN Headquarters.16 Alongside the PFII, work on the rights of indigenous peoples has continued through the UN’s dedicated human rights institutions. In 2001, the Commission on Human Rights responded to ‘the urgent need to recognise, promote and protect more effectively the human rights and fundamental freedoms of indigenous people’ by appointing, as part of its system of thematic ‘special procedures’, the Special Rapporteur on the 11 H Minde, ‘The Destination and the Journey:  Indigenous Peoples and the United Nations from the 1960s through 1985’ in H Minde (ed), Indigenous Peoples: Self-​determination, Knowledge, Indigeneity (Eburon Academic Publishers, 2008) 49, 73. See also E Daes, ‘The Spirit and Letter of the Right to Self-​Determination of Indigenous Peoples: Reflections on the Making of the United Nations Draft Declaration’ in P Aikio and M Scheinin (eds), Operationalizing the Right of Indigenous Peoples to Self-​Determination (Institute for Human Rights, 2000) 67, 72. 12 L Malezer, ‘Permanent Forum on Indigenous Issues: “Welcome to the Family of the UN” ’ in J Castellino and N Walsh (eds) International Law and Indigenous Peoples (Martinus Nijhoff Publishers, 2005) 67, 85. 13 ECOSOC Res. 22, 28 July 2000. 14 Members nominated by governments are elected on the basis of the five UN regional groupings (Africa; Asia; Eastern Europe; Latin America and the Caribbean; and Western Europe and other States); while members nominated by indigenous organizations represent the seven sociocultural regions determined to give broad representation to the world’s indigenous peoples (Africa; Asia; Central and South America and the Caribbean; the Arctic; Central and Eastern Europe, Russian Federation, Central Asia and Transcaucasia; North America; and the Pacific). 15 Annan, Speech to Permanent Forum on Indigenous Issues, New York, 24 May 2002, cited in Malezer, above n 12, 85. 16 GA Res. 57/​191, 18 December 2002.

294  Madeleine Heyward Situation of Human Rights and Fundamental Freedoms of Indigenous People.17 The Special Rapporteur’s mandate, which has since been extended, includes:  promoting the Declaration on the Rights of Indigenous Peoples and other relevant international instruments; exchanging information on alleged violations of the human rights and fundamental freedoms of indigenous people; formulating recommendations and proposals on measures and activities to prevent and remedy violations; and examining ways and means of overcoming obstacles to full and effective protection.18 She is specifically requested to work in close cooperation with the PFII and to participate in its annual session; as well as to cooperate with other special procedures and subsidiary organs of the Human Rights Council, relevant UN bodies, treaty bodies and human rights regional organizations; and to develop a regular cooperative dialogue with all relevant actors. Until 2007, when it was dissolved following the abolition of the Commission on Human Rights and the establishment of the Human Rights Council,19 the WGIP continued to hold annual meetings in Geneva to discuss indigenous peoples’ human rights issues. Arguments for its discontinuance in view of its overlap with the mandate of the PFII were rejected by many indigenous groups, who argued that it should continue to play a distinct role as ‘an expert body nominated by governments with a human rights mandate’, in contrast to the much broader role and composition of the PFII.20 When the WGIP was dissolved, indigenous organizations called for the creation of a new body under the Human Rights Council to continue its work.21 Proposed functions included reviewing and evaluating best practices and obstacles faced in the promotion and protection of indigenous peoples’ rights, advising on measures to ensure implementation of indigenous peoples’ rights, undertaking studies and research, and providing information for the Universal Periodic Review mechanism.22 A number of States expressed concerns regarding the potential for a new body to duplicate the work of the PFII and Special Rapporteur. The Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) was established as a compromise body with a very limited mandate: ‘to provide the Council with thematic expertise on the rights of indigenous peoples in the manner and form requested by the Council’, focusing on ‘studies and research-​based advice’.23 After nearly ten years, the Council recently amended the EMRIP’s mandate to a broader remit (covering many of the functions initially proposed), including to provide expertise and advice on the rights of indigenous peoples as set out in the UN Declaration, and to ‘assist Member States, upon request, in achieving the ends of the Declaration through the promotion, protection and fulfilment of the rights 17 CHR Res. 2001/​57, 24 April 2001. 18 HRC Res. 6/​12, 28 September 2007; CHR Res. 2004/​62, 21 April 2004. 19 ECOSOC Res. 2, 22 March 2006; GA Res. 60/​251, 15 March 2006. 20 See Debeljak, above n 5, 193. 21 Report of the Working Group on Indigenous Populations on is[what should this be?] Twenty-​Fourth Session (Geneva, 31 July–​4 August 2006), Doc. A/​HRC/​Sub.1/​58/​22, 14 August 2006, Annex IV, 27–​30. 22 See documentation for informal meeting to discuss the most appropriate mechanisms to continue the work of the Working Group on Indigenous Populations, 6–​7 December 2007, online at https://​www.ohchr.org/​EN/​Issues/​ IPeoples/​Pages/​InformalMeeting.aspx. 23 HRC Res. 6/​36, 14 December 2007.

Permanent Forum on Indigenous Issues  295 of indigenous peoples’.24 Like the WGIP, the EMRIP initially comprised five state-​ nominated independent experts, now enlarged to seven (one from each of the seven indigenous sociocultural regions). It holds an annual five-​day meeting, in which states and a range of non-​state observers participate, and to which the Special Rapporteur and a member of the PFII are required to be invited ‘to enhance cooperation and avoid duplicating the work’.

8.3  ‘A new function’: the Declaration on the Rights of Indigenous Peoples With the adoption of the Declaration on the Rights of Indigenous Peoples in 2007, a new dimension was added to the PFII’s work and the overlapping institutional mandates for promotion and protection of indigenous peoples’ rights. The General Assembly’s decision to adopt the Declaration, which represented the culmination of over two decades of negotiations, was hailed as a turning point: a multilateral commitment to ensuring the enjoyment by indigenous peoples of the universal human rights recognized as belonging to all people, and a recognition of the existence of rights unique to indigenous peoples.25 Article 1 of the Declaration notes indigenous peoples’ preexisting right ‘to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognised in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law’. The forty-​five articles that follow blend existing human rights standards with elaborations and additions specific to indigenous peoples, and directives to states and UN bodies. Together, these provisions are proclaimed to set ‘the minimum standards for the survival, dignity and well-​being of the indigenous peoples of the world’.26 As a non-​binding instrument, the Declaration on the Rights of Indigenous Peoples does not assign formal responsibility for overseeing implementation of its provisions to any particular institution. Article 42 states: The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialised agencies, including at the country level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration.

In the absence of a dedicated implementation mechanism, each of the three specialized UN mandate-​holders embraced functions relating to the Declaration as a core aspect of 24 HRC Res. 33/​25, 30 September 2016. 25 See generally: ‘General Assembly Adopts Declaration on Rights of Indigenous Peoples: ‘Major Step Forward’ Towards Human Rights for All, Says President’, UN press release, Doc. GA/​10612, 13 September 2007; Anaya and Wiessner, ‘The UN Declaration on the Rights of Indigenous Peoples:  Towards Reempowerment’ Jurist (3 October 2007). 26 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: resolution/​adopted by the General Assembly, 2 October 2007, A/​RES/​61/​295, Article 43.

296  Madeleine Heyward its mandate. The Special Rapporteur, whose mandate from the Human Rights Council specifically includes promotion of the Declaration, gave significant consideration to the legal character of the Declaration and mechanisms for its operationalization,27 and has referred to the Declaration extensively in country reports and communications with governments. The communications summarized in the Special Rapporteur’s 2011 report to the Human Rights Council, for example, use the Declaration as ‘the principal normative frame of reference’ for situations from imprisonment of Mapuche in Chile to the treatment of unrecognized Bedouin villages in Israel, the effects of a palm oil plantation in Malaysia, artificial snowmaking in the United States, hydroelectric projects in Costa Rica and Ethiopia, and mining in Guatemala and Mexico.28 The EMRIP’s Chairperson-​Rapporteur also identified the Declaration as a key part of the Mechanism’s ‘normative framework’, stating that it had ‘an important role in promoting the operationalisation of the rights affirmed in the Declaration and in mainstreaming them into the Council’s overall efforts to promote and protect all human rights’.29 This role has been formally confirmed and reinforced in the extension of the EMRIP’s mandate. Significantly, the PFII, which considers that the purpose of the Declaration ‘is to constitute the legal basis for all activities in the areas of indigenous issues’, determined on the basis of Article 42 that it had been ‘assigned an extended mandate with a new function’.30 The PFII adopted a ‘General Comment’ on Article 42, setting out its understanding of its obligations as ‘the only United Nations body expressly mentioned in the article’. The General Comment states: As an advisory body to the Economic and Social Council, the Forum has so far had six mandated areas, namely indigenous issues related to economic and social development, culture, environment, education, health and human rights. Even though the Forum is a subsidiary body of the Council, the General Assembly can, as the global body within the United Nations system, extend and strengthen the mandate of the Forum. Article 42 introduces a new function and responsibility, which should be read in the light of the article as a source of international law.

While recognizing that ‘[t]‌he Declaration is not a treaty and it accordingly does not have the binding force of a treaty’, the PFII’s General Comment states that ‘this does not 27 See, for example, Report of the Special Rapporteur on the Situation of the Human Rights and Fundamental Freedoms of Indigenous People, S. James Anaya, UN HRC, 9th sess, Doc. A/​HRC/​9/​9, 211 August 2008. 28 Report by the Special Rapporteur on the Rights of Indigenous Peoples, S.  James Anaya, Addendum, Communications sent, replies received and follow-​up, UN HRC, 18th session, Doc. A/​HRC/​18/​35/​Add.1, 22 August 2011. 29 Report of the Expert Mechanism on the Rights of Indigenous Peoples on its First Session (Geneva, 1–​3 October 2008), Doc. A/​HRC/​10/​56, 8 January 2009. 30 Report on the Eighth Session (18–​29 May 2009), Doc. E/​C.19/​2009/​14,  Annex: General comments to the follow-​up to the recommendations of the Permanent Forum on Indigenous Issues on implementation of the United Nations Declaration on the Rights of Indigenous Peoples and on dialogue with the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples and other special rapporteurs: ‘Article 42 of the United Nations Declaration on the Rights of Indigenous Peoples’ (‘General Comment’).

Permanent Forum on Indigenous Issues  297 at all mean that the Declaration is without any legally binding effect’—​it understands some parts of the Declaration as containing binding interpretations of existing human rights treaty obligations,31 and others as reflecting custom.32 Beyond the traditional sources of international law, it considers that ‘[t]he binding value of the Declaration must be seen in the wider normative context of the innovations that have taken place in international human rights law in recent years’—​the procedure through which it was drafted has conferred upon it a ‘special status’: It was developed during a decade of negotiations between representatives of States and representatives of indigenous peoples, ‘negotiations’ being a word used several times by State representatives. This long-​lasting procedure resulted in a document expressing a broad common ground, which has now also been endorsed by the General Assembly. Even though it is not formally an agreement, in reality, the document is by way of its creation an instrument almost universally agreed upon. In this way, the Declaration is part of a practice that has advanced a growing ‘rapprochement’ between declarations and treaties.33

To the extent that its provisions do not (or not yet) reflect customary international law, or represent binding interpretations of obligations under human rights treaties, the Declaration may be described as a ‘non-​treaty’. Like ‘non-​papers’ in diplomatic negotiations, it does not necessarily represent the views of all states concerned. States would almost certainly not have agreed to a number of its extensive and far-​reaching provisions in a legally binding instrument. Indeed, as Davis notes, the international indigenous movement has ‘indicated a preference for the Declaration to remain non-​ binding in international law . . . to move toward a convention on the rights of indigenous peoples would be detrimental to indigenous rights because such a convention would be unlikely to attract enough signatures to become an international instrument’.34 Yet the Declaration is highly significant in practice. Unlike many ‘soft’ instruments, it is in the form of a treaty, consisting of carefully worded, negotiated text phrased in 31 The General Comment states: ‘The Declaration forms a part of universal human rights law . . . The human rights treaty bodies will need to refer to the Declaration, as their practice already indicates, whenever dealing with indigenous rights’. Relevant treaties include the International Covenant on Civil and Political Rights (opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)), the International Covenant on Economic, Social and Cultural Rights (opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976)), the International Convention on the Elimination of All Forms of Racial Discrimination (opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969)), and the Convention on the Rights of the Child (opened for signature 20 November 1989, 1577 UNTS 44 (entered into force 2 September 1990)). 32 The General Comment states: ‘A number of the articles . . . may already today have the quality of customary law by virtue of policies implemented in national jurisdictions. As expressions of international customary law, they must be applied regardless of the nature of the document in which they are stated or agreed’. For further commentary, see generally J Anaya and S Wiessner, ‘The UN Declaration on the Rights of Indigenous Peoples: Towards Reempowerment’ Jurist (3 October 2007); J Anaya, ‘The Emergence of Customary International Law Concerning the Rights of Indigenous Peoples’ (2005) 12 Law and Anthropology 127; S Wiessner, ‘Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples’ (2008) 41 Vanderbilt Journal of Transnational Law 1141. 33 General Comment. 34 M Davis, ‘Indigenous Struggles in Standard-​Setting:  The United Nations Declaration on the Rights of Indigenous Peoples’ (2008) 9 Melbourne Journal of International Law 439, 467.

298  Madeleine Heyward obligatory terms. Each provision setting out a right of indigenous peoples is unambiguously worded: ‘Indigenous peoples have the right . . .’ The words ‘States shall’ appear twenty-​two times in the Declaration’s forty-​five provisions. Though states are not formally bound by the Declaration to respect these rights or carry out these directives, the provisions are clearly set out as standards against which they have agreed to be judged. Though some states may express disagreement with some of the standards, there is no formal way to ‘opt out’ by refusing to sign or ratify, and the Declaration will be relied upon as agreed by the UN’s plenary body ‘regardless of how each State voted in the General Assembly or their subsequent position’.35 Moreover, the Declaration is almost completely unprecedented in representing an agreement not only between states in their relations with one another, but between States and the non-​State actors it concerns, creating an additional moral imperative to meet its standards. To fulfil its ‘new and extensive responsibility’ to promote respect for and full application of the provisions of the Declaration and follow up the effectiveness of the Declaration, the PFII committed to determining its authority and methods ‘by way of a reading of article 42 on the basis of the Declaration as a whole’, guided by ‘the workings of the Forum so far, the purpose of article 42 and the normal way of protecting human rights within the UN system’.36

8.4  The PFII as non-​treaty body: overseeing implementation of the Declaration In its General Comment on Article 42, the PFII indicated its understanding that the treaty bodies of the human rights conventions ‘should be regarded as models for the Forum’ in fulfilling its role to ‘promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration’. In view of the common characteristics of the human rights treaty bodies, three key methods—​in addition to general promotional and educative activities which fall clearly within the scope of its core mandate—​can be identified for the PFII to fulfil the function it identified in relation to the Declaration: i) reviewing implementation of the Declaration; ii) responding to particular cases of failure to respect the provisions of the Declaration; and iii) issuing interpretations or guidance on implementation of provisions of the Declaration in the form of further ‘general comments’ or similar recommendations and reports.37 Because the Declaration is a non-​binding instrument, and the activities to be undertaken by the PFII in overseeing its implementation are not clearly mandated, the use of methods developed by the human rights treaty bodies is in some respects 35 General Comment, para 8. 36 General comment, para 18. 37 See generally Report of the International Expert Group Meeting on the Role of the Permanent Forum on Indigenous Issues in the Implementation of Article 42 of the United Nations Declaration on the Rights of Indigenous Peoples, PFII, 8th session, Doc. E/​C.19/​2009/​2, 4 February 2009.

Permanent Forum on Indigenous Issues  299 constrained—​for example, there is no obligation for states to report to the PFII, and no right of individual petition. However, with a broad mandate and a ‘soft’ instrument, the PFII is also in some respects less constrained—​as Alston notes, ‘it is inevitably difficult to achieve flexible institutional and substantive changes in the context of a regime which has its foundations in a range of treaties, each of which was, to some extent, drafted in such a way as to limit the possibilities of dramatic change from within’.38 Employed cautiously, in cooperation with the Special Rapporteur, EMRIP and other relevant bodies, methods developed by the treaty bodies have strong potential to take on new dimensions in the PFII’s institutional context and enhance the effectiveness of the Declaration in positively influencing the behaviour of states and other powerful actors in relation to the rights of indigenous peoples.

(a)  Implementation review The PFII understands Article 42 of the Declaration to imply an authority for it ‘to arrange dialogues with States regarding application of the Declaration and, thereafter, to follow up on its effectiveness by making conclusions relating to each State’s behavior’, with ‘criticism on implementation gaps and demands for reforms’.39 It considers that Article 42 ‘implies that States have a duty to respond to a demand by the Forum for dialogue on the Declaration’—​however, as it ‘does not expressly empower the Forum to summon States to appear in the meetings of the Forum and answer the questions put by the members’, there are strong ‘practical and political reasons not to put this conclusion to the test’. Thus, the PFII has developed ‘[c]‌reative’ methods, ‘such as dispatching to States a questionnaire regarding implementation’—​with information from indigenous peoples’ organisations, non-​governmental organisations and Forum members as ‘important supplementary material’—​to form the basis for ‘constructive dialogue followed by concluding remarks from the Forum’.40 For the treaty bodies established under the core human rights conventions, review of compliance is undertaken primarily on the basis of reports required to be submitted by the States parties to each convention. The PFII’s capacity to perform a similar function in respect of the Declaration is hampered by the absence of any reporting requirement in respect of implementation of its provisions—​the submission of government information on which dialogues can be based is entirely dependent on political will. The unfortunate corollary of this need to ‘advance along a voluntary road’ is that only those states that are already strongly committed to protecting the rights of indigenous peoples, and consider themselves to be largely in conformity with the provisions of the Declaration,

38 P Alston, ‘Beyond ‘Them’ and ‘Us’: Putting Treaty Body Reform into Perspective’ in P Alston and J Crawford (eds), The Future of UN Human Rights Treaty Monitoring (Cambridge University Press, 2000) 501, 522. 39 General Comment. 40 General Comment. Questionnaires sent by the Forum Secretariat to Member States, Indigenous Peoples, the UN System and National Human Rights Institutions are available as part of documentation for its sessions at https://​www.un.org/​development/​desa/​indigenouspeoples/​unpfii-​sessions-​2.html.

300  Madeleine Heyward are likely to engage. While there may nonetheless be a body of states willing to participate in dialogue with the PFII and voluntarily submit information in advance of its annual sessions, the picture that emerges from the PFII’s monitoring may be misleading as to the general status of implementation of the Declaration internationally. Moreover, its provision of ‘criticism on implementation gaps and demands for reforms’ is likely limited to a greater extent than other human rights review mechanisms by the need to preserve the willingness of states to engage in dialogue and induce additional states to enter into dialogue. Despite the disadvantage of lacking a formal reporting mechanism, the PFII possesses some advantages in composition and procedure relevant to implementation monitoring that the treaty bodies lack. With its membership of indigenous-​nominated as well as State-​nominated experts and its inclusive working methods, it is a participatory mechanism with a strong sense of ownership among those whose rights the Declaration is intended to protect—​its annual sessions attract, in addition to some seventy state delegations and thirty-​five intergovernmental bodies, more than 1000 indigenous participants from all parts of the world.41 In developing its implementation monitoring function pursuant to the broad indication from the General Assembly that it should ‘promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration’, the PFII is—​subject to the need to exercise caution so as not to provoke a negative reaction from states—​free to develop innovative methods and to involve a range of non-​state actors in its review processes. It may also undertake country visits, with state consent and within its resource capabilities (country visits have been made, for example, to Bolivia, Paraguay and Colombia)—​as well as work in cooperation with the Special Rapporteur, who develops a number of State-​specific reports on the protection of indigenous peoples’ rights each year, based largely on country visits. The gradual adoption of an implementation review function by the PFII could be significant in developing the influence of the Declaration on State practice (particularly given the limited extent to which its implementation will be monitored by the core human rights mechanisms in Geneva, which are focused on treaty obligations).42 Provided that the PFII’s implementation review function is developed with prudence, 41 See Implementation of the Human Rights Mandate of the Permanent Forum on Indigenous Issues, PFII, 6th sess, Doc. E/​C.19/​2007/​6, 9 March 2007; E Stamatapoulou, ‘United Nations Permanent Forum on Indigenous Issues: A Multifaceted Approach to Human Rights Monitoring’ in G Alfredson, J Grimheden, B Ramcharan, and A de Zayas (eds), International Human Rights Monitoring Mechanisms: Essays in Honour of Jakob Th. Möller (2nd edn, Martinus Nijhoff, 2009) 355, 361–​2. On the closed nature of the treaty bodies’ review procedures, see generally A Clapham, ‘UN Human Rights Reporting Procedures: An NGO Perspective’ in P Alston and J Crawford (eds), The Future of UN Human Rights Treaty Monitoring (Cambridge University Press, 2000) 175, 187–​93. 42 While at least two of the treaty bodies have made reference to the Declaration (see CERD, Report of the Committee on the Elimination of Racial Discrimination, Seventy-​Second Session (18 February–​7 March 2008), Seventy-​Third Session (28 July–​15 August 2008), Doc. A/​63/​18 (2008), at 500; CRC, General Comment No. 11 (2009): Indigenous children and their rights under the Convention, Doc. CRC/​C/​GC/​11, 12 February 2009, para 10), others appear to have been more reluctant (see Clavero, The UN Declaration on the Rights of Indigenous Peoples: its first year’, in International Work Group for Indigenous Affairs (2009) The Indigenous World 2009 585). At least one commentator has noted the lack of attention to the rights of indigenous peoples by the Universal Periodic Review mechanism: see J Carling, ‘UN Human Rights Council Periodic Review’ in International Work Group for Indigenous Affairs (2009) The Indigenous World 621.

Permanent Forum on Indigenous Issues  301 it may be hoped that the willingness of states to accept constructive criticism from the Forum on their protection of the rights of indigenous peoples will grow over time, as has their acceptance of the monitoring work of the core human rights treaty bodies (which arguably was always more a function of the relationship of cooperation forged between states and those bodies than the force of a somewhat theoretical legal obligation).43 It should also be noted that the PFII is—​with its broad mandate to raise awareness and promote the integration and coordination of relevant activities within the UN system and provide expert advice and recommendations to UN programmes, funds and agencies—​well placed to promote and review implementation of the Declaration by powerful intergovernmental actors which impact on the extent to which indigenous peoples’ rights are recognized and protected. As indicated by Stamatopoulou, much of the PFII’s work is oriented towards a ‘culture change’ that ‘should be catalytic in terms of policies, laws, budgets and overall practices of the UN system, and have an impact at the national and local level’.44 With the support of the Inter-​Agency Support Group on Indigenous Peoples’ Issues—​an ad hoc group established to support the work of the PFII with a current membership of forty-​four institutions, including a range of UN bodies and specialised agencies, and major development actors including the World Bank—​the PFII has begun work towards ‘mainstreaming’ of the rights recognized in the Declaration into work across the UN system. It has held ‘constructive dialogue’ regarding implementation of the Declaration with several UN bodies, including the Office of the High Commissioner for Human Rights (OHCHR), International Fund for Agricultural Development (IFAD), Food and Agriculture Organization (FAO), World Intellectual Property Organization (WIPO), UN Development Programme (UNDP), UN Population Fund (UNPFA), UN Department of Economic and Social Affairs (DESA) and UN Children’s Fund (UNICEF)—​as well as international financial institutions, including the World Bank, African Development Bank, Asian Development Bank, Inter-​American Development Bank and International Finance Corporation. These bodies have begun to take action in response to the PFII’s recommendations—​for example, ILO, UNDP, OHCHR and UNICEF jointly established a multi-​donor trust fund focused on implementing the Declaration; FAO adopted a new organisational policy on indigenous and tribal peoples; and IFAD established a dedicated indigenous peoples’ forum.45 The PFII’s broad capacity for inter-​institutional implementation promotion and review—​not available to the human rights treaty bodies, and more flexible than that of the Human Rights Council—​may be a significant tool for the PFII in enhancing the effectiveness of the Declaration in practice.

43 See Alston, above n 37, 522. 44 Stamatapoulou, above n 41, 362. 45 See PFII, Report on the Ninth Session (19–​30 April 2010), Doc. E/​C.19/​2010/​15; PFII, Report on the Tenth Session (16–​27 May 2011), Doc. E/​C.19/​2011/​14.

302  Madeleine Heyward

(b)  Responding to rights violations A second method the PFII may employ is the provision of institutional responses to particular instances of failure to comply with the provisions of the Declaration. Unlike a number of the human rights treaty bodies, the PFII does not have the mandate to consider individual complaints regarding rights violations. It does, however, as noted above, have significant capacity to bring together a wide range of representatives of indigenous peoples, indigenous organizations, and broader human rights organizations—​many of whom travel to attend its annual sessions with the aim of sharing information about rights violations.46 The PFII has employed a number of techniques to respond to the rights violations which come to its attention, including:  directly naming the countries concerned in its annual reports (for example, the 2010 annual report expressed the PFII’s ‘deep concern’ about changes in policy on bilingual education in Australia considered inconsistent with the Declaration) or in press releases (such as the 2008 press release calling for urgent action to put an end to violence against indigenous communities in Bolivia);47 meeting with other relevant UN bodies to bring particularly egregious rights violations to their attention (for example, the PFII Chairman met with the President of the Security Council regarding violence against indigenous communities in the Democratic Republic of the Congo in 2003); engaging in confidential dialogue with representatives of the state concerned;48 and assisting complainants in accessing human rights treaty body complaint mechanisms where relevant and available.49 With its capacity to convene large gatherings of indigenous organizations, the PFII also contributes significantly to the Special Rapporteur’s work in responding to rights violations. Though she is specifically mandated to engage in information exchange on alleged rights violations, including with governments and indigenous people, communities and organizations, and to formulate recommendations and proposals on measures and activities to prevent and remedy violations, the Special Rapporteur has limited resources and thus limited ability to meet with indigenous peoples and access information about rights violations.50 The Special Rapporteur holds public dialogues in the margins of the PFII’s annual session, providing her with the opportunity to hear statements from a wide range of organizations to inform her work.51 This puts the Rapporteur in the quite unique situation, by UN human rights standards, 46 See Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, S. James Anaya, HRC, 12th session, Doc. A/​HRC/​12/​34, 15 July 2009, para 11. 47 PFII, Report on the Ninth Session (19–​ 30 April 2010), Doc. E/​ C.19/​ 2010/​ 15; Press Release from the Chairperson of the United Nations Permanent Forum on Indigenous Issues Regarding the Recent Events in Bolivia, 18 September 2008. 48 See Stamatapoulou, above n 41, 363–​5. 49 Author interview with Carol Pollack, Secretariat of the PFII, New York, 28 October 2009. 50 See Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, S. James Anaya, HRC, 12th session, Doc. A/​HRC/​12/​34, 15 July 2009, paras 32–​5. 51 Ibid, paras 11–​12; Implementation of the Human Rights Mandate of the Permanent Forum on Indigenous Issues, PFII, 6th session, Doc. E/​C.19/​2007/​6, 9 March 2007, para 37.

Permanent Forum on Indigenous Issues  303 of having an entire body of people closely acquainted with relevant rights violations easily accessible once a year in New York (no such thing exists even for the most recent human rights treaties, the Convention on the Rights of Persons with Disabilities or the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families). Though the PFII does not have an explicit mandate regarding means by which it may respond to particular rights violations, it has developed a number of informal techniques by which violations may be addressed—​including ‘naming and shaming’, issuing recommendations, meeting directly with relevant actors, and working indirectly through the Special Rapporteur. As with implementation monitoring, the cautious development of a practice of applying these methods to instances of failure to respect the provisions of the Declaration may gather strength over time.

(c)  General comments Finally, the PFII may publicize its understanding of the meaning of provisions of the Declaration and guidance for their implementation in the form of further ‘general comments’ or similar recommendations and reports. With its mandate to prepare and disseminate information on indigenous issues, provide expert advice and recommendations, raise awareness and promote the integration and coordination of activities within the UN system, the PFII arguably has a stronger basis for offering general guidance on implementation of the Declaration than the Human Rights Committee has under the direction to provide, together with its responses to parties’ reports on implementation of the International Covenant on Civil and Political Rights, ‘such general comments as it may consider appropriate’.52 The general comments published by the treaty bodies, presented as their interpretation of the relevant human rights treaties, have become one of the most significant and influential tools available to them in increasing the effectiveness of the treaties they oversee. The interpretations they provide of the requirements for implementation of treaty obligations are widely considered authoritative, offering more detailed standards against which government action or inaction may be judged by a range of relevant actors, including domestic courts and non-​ governmental organizations. Though the context for the PFII as ‘non-​treaty body’ is different from that of the human rights treaty bodies, as the Declaration is formally a non-​binding instrument, general comments or recommendations may be expected to perform a similar function in adding detail and practical advice for implementation of fairly general provisions. If considered authoritative and credible, such advice is likely to be widely relied on by actors instrumental in implementation of the Declaration—​including other intergovernmental institutions, non-​governmental bodies, domestic agencies, and even 52 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Article 40.

304  Madeleine Heyward international and domestic courts.53 Comments or recommendations might deal with particular provisions of the Declaration, particular challenges in or obstacles to implementation cutting across various provisions, or broader cross-​cutting thematic issues affecting implementation. The PFII may face two key challenges in this method of promoting respect for and application of the Declaration (in addition to the broader challenge of state reticence). First, because it is not the only UN body with a mandate in respect of the Declaration and the rights reflected in it, institutional cooperation is required to ensure that the PFII’s understanding of provisions of the Declaration and its recommendations for effective implementation are consistent with those expressed by other relevant actors. In particular, the Special Rapporteur and the EMRIP, whose mandates in respect of indigenous peoples’ rights overlap with that of the PFII, should be part of any standard-​setting work undertaken. Each of the three mandate-​holders has begun to offer interpretations of and recommendations on the Declaration: the PFII in extensive recommendations contained in its annual reports, including special thematic recommendations:54 the Special Rapporteur in reports dealing with the character and content of the Declaration and mechanisms to operationalize it, the elements of the duty to consult, corporate responsibility with respect to indigenous rights, and other specific matters including extractive industries and indigenous rights, and the rights of indigenous women and girls;55 and the EMRIP in studies for the Human Rights Council on matters such as the right to education, the right to participate in decision-​making, rights with respect to cultural heritage, languages and culture, and access to justice.56 While efforts at 53 It may be noted that provisions of the Declaration have been cited by the Inter-​American Court of Human Rights: see eg Saramaka People v Suriname [2007] Inter-​Am Court HR (ser C) No 172; and relied on as ‘importing . . . significant obligations for the State’ by at least one domestic court: see Aurelio Cal v Attorney-​ General of Belise, Claim 121/​2007 (Supreme Court, Belise, 18 October 2007). 54 PFII, Report on the Fourteenth Session (20 April–​1 May 2015), Doc. E/​C.19/​2015/​10; PFII, Report on the Thirteenth Session (12–​23 May 2014), Doc. E/​C.19/​2014/​11 (including special recommendations on Principles of good governance consistent with the Declaration: articles 3 to 6 and 46); PFII, Report on the Twelfth Session (20–​31 May 2013), Doc. E/​C.19/​2013/​25; PFII, Report on the Eleventh Session (7–​18 May 2012), Doc. E/​C.19/​2012/​13 (including special recommendations on The Doctrine of Discovery: its enduring impact on indigenous peoples and the right to redress for past conquests (articles 28 and 37 of the Declaration)); PFII, Report on the Tenth Session (16–​27 May 2011), Doc. E/​C.19/​2011/​14; PFII, Report on the Ninth Session (19–​30 April 2010), Doc. E/​C.19/​2010/​ 15 (including special recommendations on Indigenous peoples: development with culture and identity; articles 3 and 32 of the Declaration); PFII, Report on the Eighth Session (18–​29 May 2009), Doc. E/​C.19/​2009/​14. 55 Report of the Special Rapporteur on the rights of indigenous peoples, Victoria Tauli Corpuz, HRC, 30th sess, Doc. A/​HRC/​30/​41, 6 August 2015; Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, S. James Anaya, HRC, 24th sess, Doc. A/​HRC/​24/​41, 1 July 2013; Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, S. James Anaya, HRC, 21st sess, Doc. A/​HRC/​21/​47, 6 July 2012; Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, S. James Anaya, HRC, 15th sess, Doc. A/​HRC/​ 15/​37, 19 July 2010; Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, S.  James Anaya, HRC, 12th sess, Doc. A/​HRC/​12/​34, 15 July 2009; Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, S. James Anaya, HRC, 9th sess, Doc. A/​HRC/​9/​9, 11 August 2008. 56 Promotion and protection of the rights of indigenous peoples with respect to their cultural heritage: Study by the Expert Mechanism on the Rights of Indigenous Peoples, Doc. A/​HRC/​30/​53, 19 August 2015; Access to justice in the promotion and protection of the rights of indigenous peoples: Study by the Expert Mechanism on the Rights of Indigenous Peoples, Doc. A/​HRC/​24/​50, 30 July 2013; Role of languages and culture in the promotion and protection of the rights and identity of indigenous peoples: Study by the Expert Mechanism on the Rights of Indigenous Peoples, Doc. A/​HRC/​21/​53, 16 August 2012; Final report of the study on indigenous peoples and the right to participate in decision-​making: Report of the Expert Mechanism on the Rights of Indigenous Peoples, Doc. A/​HRC/​18/​42, 17 August 2011; Study on Lessons Learned and Challenges to Achieve the Implementation of the Right of Indigenous

Permanent Forum on Indigenous Issues  305 cooperation are made—​including informal input by the PFII into the EMRIP’s work, interactive dialogue during sessions of the three mechanisms, and some dedicated coordination meetings would increase the effectiveness of efforts to provide authoritative interpretations and recommendations in relation to the Declaration, and guard against the mandate-​holders undermining one another.57 An ‘Update on the promotion and application’ of the Declaration prepared for the PFII’s 2019 session incorporates analysis and recommendations for all three mechanisms on advances and challenges related to eight issues covered by the Declaration.58 If the three mechanisms could agree on the best ways to interpret and apply the Declaration, each contributing their distinct expertise, their collective voices expressing this understanding—​for example, through a common general comment annexed to the annual report of each—​would be more influential. The second challenge, related to the first, is to ensure that the need for ‘drafting by committee’—​magnified by the multiple institutional actors involved—​does not compromise the quality of further general comments or similar recommendations. As for the human rights treaty bodies, the force and impact of any general comments adopted by the PFII in respect of the Declaration will depend on their persuasiveness and analytical rigour. As noted by Mechlem, because ‘the drafting of a General Comment is a process in which a large number of actors pursue their interests and advance their views, the treaty bodies must be guided by a clear method when making their interpretive decisions’ to ensure that they are able to offer guidance on the provisions interpreted ‘in a principled and legally convincing way’.59 The PFII, which usually has a significant number of legally trained members, is well equipped to undertake the task of drafting general comments on the Declaration, but should take care to ensure an effective drafting process which allows for cooperation with other relevant institutional actors and broad consultation in accordance with its participatory nature, while ensuring the development of clear and persuasive text.

8.5 Concluding observations The PFII’s participatory structure and broad mandate give it a unique role within the UN system as a protector and promoter of human rights. Its establishment as a Peoples to Education: Report of the Expert Mechanism on the Rights of Indigenous Peoples, Doc. A/​HRC/​12/​33, 31 August 2009. 57 Discussions at the International Expert Seminar on the Role of UN Mechanisms with a Specific Mandate Regarding the Rights of Indigenous Peoples indicated considerable overlap in the three mechanisms’ plans for work relating to the Declaration. If these plans were carried out by the mechanisms independently, there would be significant potential for their objectives to be undermined. The EMRIP, for example, expressed an interest in developing and adopting ‘general thematic comments and recommendations on the rights of indigenous peoples . . . somewhat similar to the general comments adopted by treaty bodies’. See ‘International Expert Seminar on the Role of UN Mechanisms with Specific Mandate Regarding the Rights of Indigenous Peoples: Madrid, 4–​6 February 2009’, available at http://​www2.ohchr.org/​english/​issues/​indigenous/​rapporteur/​docs/​ReportExpertSeminarMadrid.pdf. 58 Update on the promotion and application of the United Nations Declaration on the Rights of Indigenous Peoples, Doc. E/​C.19/​2019/​6, 5 February 2019. 59 K Mechlem, ‘Treaty Bodies and the Interpretation of Human Rights’ (2009) 42 Vanderbilt Journal of Transnational Law 905, 928–​9.

306  Madeleine Heyward standing body with permanent indigenous representation and a mandate to provide expert advice, information and recommendations and to raise awareness and promote inter-​institutional coordination was a major step forward in the UN’s engagement with indigenous peoples. Since the adoption of the UN Declaration on the Rights of Indigenous Peoples, the PFII’s work has focused more directly on monitoring and facilitating implementation of indigenous peoples’ rights, a function in some ways akin to that of the human rights treaty bodies. In fulfilling and further developing this role, the PFII must cautiously negotiate the ‘continuing reticence on the part of States to allow too much ‘breathing space’ for human rights monitoring’:60 each of the methods described above—​reviewing implementation, responding to particular violations, and providing guidance through general comments or similar recommendations—​should be carefully applied to the Declaration as a ‘soft’ instrument and adapted to the PFII’s particular institutional weaknesses and strengths. With different powers and responsibilities to those of the treaty bodies, the PFII’s role as a protector and promoter of human rights is both more and less constrained. Potential disadvantages include the absence of any requirement for states to participate in its work and overlapping institutional mandates. Advantages include the Forum’s strong participatory nature, the potential for coordination in overlapping mandates to strengthen its influence, and its broad scope of work in relation to other UN agencies, programmes and funds. The 2014 high-​level plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples reaffirmed states’ support for the Declaration on the Rights of Indigenous Peoples and requested the Secretary-​General to develop, with broad consultation, a system-​wide action plan to ensure a coherent approach to achieving the ends of the Declaration, which is now in effect.61 As the PFII plays its part in strengthened efforts to promote respect for and full application of the provisions of the Declaration and following up its effectiveness, continued coordination and compromise, particularly with the Special Rapporteur and EMRIP, will be essential. Working together, the three mechanisms can form a tripartite structure with a presence in both New York and Geneva and a consistent message about the nature and scope of indigenous peoples’ rights and what must be done to protect and promote them. Effectively carried out, the PFII’s work in this respect may gradually amount to nothing less than ‘a small revolution in the UN system’:62 a non-​treaty negotiated with non-​state actors, overseen by a UN body in which non-​state actors are equal participants, implemented with ‘determined gradualism’ until it produces the changes needed among those with responsibilities for indigenous peoples’ rights.

60 Stamatapoulou, above n 41, 365. 61 GA Res. 69/​2, 25 September 2014; System-​wide action plan for ensuring a coherent approach to achieving the ends of the United Nations Declaration on the Rights of Indigenous Peoples, Doc E/​C.19/​2016/​5, 19 February 2016. 62 M Dodson, ‘Comment’ in S Pritchard (ed), Indigenous Peoples, the United Nations and Human Rights (Federation Press, 1998) 62.

PART III

ORGA N S MON ITOR I NG T R E AT Y C OMPL IA NCE

9 The Committee on the Elimination of Racial Discrimination (CERD) Patrick Thornberry1

9.1  Introduction Preceded by a Declaration on the Elimination of All Forms of Racial Discrimination2 in 1963, the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) was adopted ‘with record speed’3 by the UN General Assembly on 21 December 1965 by 106 votes to 0,4 with one abstention,5 and entered into force on 4 January 1969.6 At the time of writing, there are 182 States parties to the Convention,7 which is not unduly burdened by reservations.8 The instruments on racial discrimination emerged in the context of the struggle against colonial domination 1 The present chapter has drawn on overviews of the Convention by M Banton, International Action against Racial Discrimination (Oxford: Clarendon Press, 1996) [Banton, International Action], and ‘Decision-​taking in the Committee on the Elimination of Racial Discrimination’ in P Alston and J Crawford (eds), The Future of UN Human Rights Treaty Monitoring (Cambridge University Press, 2000) 55–​78; I Diaconu, Racial Discrimination (The Hague: Eleven International Publishing, 2011); D Keane and A Waughray (eds), Fifty Years of the International Convention on the Elimination of All Forms of Racial Discrimination, A Living Instrument (Manchester University Press, 2017); N Lerner, The UN Convention on the Elimination of All Forms of Racial Discrimination (Alphen aan den Rijn: Sijthoff and Noordhoff, 1980), reprint revised by N Lerner (Leiden and Boston: Brill Nijhoff, 2015); T Meron, ‘The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination’ (1985) 79 American Journal of International Law 283–​318 [Meron, Meaning and Reach]; E Schwelb, ‘The International Convention on the Elimination of All Forms of Racial Discrimination’ (1966) International and Comparative Law Quarterly 15, 996–​1068; P Thornberry, ‘Confronting Racial Discrimination: A CERD Perspective’ (2005) Human Rights Law Review 5, 239–​69 [Thornberry, Confronting Racial Discrimination], and The International Convention on the Elimination of All Forms of Racial Discrimination (Oxford University Press, 2016) [Thornberry, The International Convention]. See also S Fredman (ed), Discrimination and Human Rights (2nd edn, Oxford: Oxford University Press, 2011) [Fredman, Discrimination and Human Rights], in particular the chapter by K Boyle and A Baldaccini, ‘A Critical Evaluation of International Human Rights Approaches to Racism’, 135–​91; D Keane, Caste-​based Discrimination in International Human Rights Law (Aldershot: Ashgate, 2007) [Keane, Caste-​Based Discrimination]; W Vandenhole, Equality and Non-​Discrimination in the View of the UN Human Rights Treaty Bodies (Antwerp: Intersentia, 2005) [Vandenhole, Equality and Non-​Discrimination]. 2 See UNGA Res 1904 (XVIII) (20 November 1963). 3 Meron, Meaning and Reach, above n 1, 284. 4 UNGA Res 2106 (XX) (25 December 1965), Annex. 5 Mexico abstained but changed its stance to an affirmative vote. See UNGA, A/​PV.1408, para 2. 6 UNTS, 660, 195. 7 See https://​treaties.un.org/​Pages/​ViewDetails.aspx?src=IND&mtdsg_​no=IV-​2&chapter=4&clang=_​en. 8 Reservations are addressed in Article 20 of the Convention; they mostly concern Articles 4 (hate speech) and 22 (jurisdiction of the ICJ over disputes) of the Convention:  https://​treaties.un.org/​Pages/​ViewDetails. aspx?src=IND&mtdsg_​no=IV-​2&chapter=4&lang=en. CERD may take a critical view of reservations but cannot authoritatively decide on their validity or invalidity—​the decision rests with a ‘college’ of two thirds of States parties objecting to the reservation. The two-​thirds figure has been subject to steady increase over the years, rendering the procedure practically inoperative. Nonetheless, CERD regularly calls for the withdrawal or narrowing of reservations.

310  Patrick Thornberry and apartheid. UN work on racial discrimination and on religious intolerance followed separate paths, having formerly been merged in a common endeavour.9 The Committee on the Elimination of Racial Discrimination (CERD/​The Committee), the oldest of the monitoring bodies of the UN ‘core’ treaties, became active in 1970, maintaining (more or less) uninterrupted activity to the present day.10 The treaty body ‘model’ pioneered by CERD has been repeated many times over.11 The proliferation of similar bodies creates challenges for institutional coherence and the development of human rights discourse. Moves to reform the treaty body system have generated intensive discussion in recent years,12 stimulated by the dramatic proposal to create a ‘unified standing treaty body’,13 a proposal that appeared to have missed its moment, but which may in time, like Lazarus, be restored to life. Since that proposal, emphasis has shifted from macro-​institutional revolution to functional integration and harmonization of working methods and procedures under the rubric of ‘treaty body strengthening’.14 CERD continues to implement responses to the institutional ferment, sometimes leading, sometimes following, while resolutely defending its members, territory, and vocation. Institutional and normative coherence are two sides of the same coin if the aim is to send tolerably clear signals to stakeholders coupled with efficient delivery of the message. There are normative challenges for the Committee in view of the longevity of the Convention and the passing into memory of the distinctive environment that gave it birth. In geopolitics, decolonization of the Western systems is more or less complete, official apartheid has passed into history, the meltdown of the USSR and Yugoslavia raised the profile and temperature of ethnic issues, while globalized migration produces stresses and strains in many countries, and the religion/​race nexus is the subject of continuing nervous preoccupation. Normative developments running parallel to the geopolitical include the emergence of specific bodies of ‘ethnic’ norms for indigenous peoples and minorities—​including, in the Convention on the Rights of the Child (CRC), their children; for refugees and migrant workers, for women, and other discrete categories of right-​holder. The influence of identity politics and the legal categorizations it has spawned is evident from (particularly) the recent work of the Committee. The ‘aggiornamento’ of the Convention is a constant in Committee work, lest Convention and Committee be demoted to the status of relics of a bygone age: the description of the Convention as ‘a living instrument’ is a demand as much as a description of current activity. 9 Thornberry, The International Convention, above n 1, ch 3. 10 Regarding cancelled sessions, see Banton, International Action, above n 1, 9, 100, 141, 143. 11 Ten UN human-​rights treaty bodies are in place: Handbook for Human Rights Treaty Body Members (United Nations: New York and Geneva, 2015) [Handbook for Treaty Body Members]. 12 In a considerable literature, see the snapshots of main developments in S Egan, ‘Strengthening the United Nations Human Rights Treaty Body System’ (2013) Human Rights Law Review 13, 209–​43; M O’Flaherty, ‘Reform of the UN Human Rights Treaty Body System: Locating the Dublin Statement’ (2010) Human Rights Law Review 10, 319–​35. A review of the system will take place in 2020. The texts of the principal documents are available on the website of the High Commissioner for Human Rights. 13 USTB. OHCHR, ‘Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body’ (22 March 2006), HRI/​MC/​2006/​2 [Concept Paper]. 14 Some annual reports of the Committee include a chapter on the treaty body strengthening process.

The Committee on the Elimination of Racial Discrimination  311 Following this introduction, the present chapter is in three sections, the first of which is a largely descriptive overview of the Committee and its procedures; this is followed by a discussion of some core principles of the Convention in light of their development by the Committee, and finally by an overview of the work of the Committee—​with as much critical leverage as may be expected from an author who, from 2001 to 2014, shared responsibility with CERD colleagues for many of the developments outlined. The chapter is weighted towards recent practice.

9.2  CERD and its monitoring procedures (a)  Membership and ethos A range of ‘mechanisms’ at the UN level address racial discrimination, including some developed following the Durban World Conference on Racism.15 Non-​treaty mechanisms include the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance;16 the Intergovernmental Working Group on the Effective Implementation of the Durban Declaration and Programme of Action;17 the Working Group of Experts on persons of African Descent,18 and the Independent Eminent Experts Group.19 CERD oversees the implementation of the Convention, and is composed, according to article 8(1), of ‘eighteen experts of high moral standing and acknowledged impartiality elected by States from among their nationals, who shall serve in their personal capacity’.20 A meeting of the States parties every two years elects nine members at a time. While ‘gender balance’ has not been the strongest point in the composition of the Committee, the membership from 2020 will have reached gender parity.21 Since 1986, meetings of the Committee have taken place in Geneva.22 Members are required to be ‘experts’ but not necessarily ‘experts on racial discrimination’,23 and the membership continues to include persons with official, particularly foreign policy, connections. Commentators suggest that the early perception of the Convention as relating primarily to foreign rather than domestic affairs produced its effects on the composition of the Committee.24 Successive Committees have had a 15 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, 31 August–​8 September 2001, A/​CONF.189/​12. See also CERD General Recommendation (GR) 28 on the follow-​up to the World Conference Against Racism, A/​57/​18, Annex XI E. 16 UNCHR Res 1993/​20 (2 March 1993), and 1994/​64 (9 February 1994). 17 UNCHR Res 2002/​68 (25 April 2002), and Economic and Social Council decision 2002/​270 (25 July 2002). 18 UNCHR 2002/​68 (25 April 2002) and 2003/​30 (25 April 2003). 19 UNGA Res 56/​266 (27 March 2002). See also the Working Group on the Elaboration of Complementary Standards (to ICERD), Human Rights Council res 6/​21, (28 September 2007). 20 Article 8 (1). 21 For comparative statistics across treaty bodies, see Handbook for Treaty Body Members, above n 11, 20. 22 Banton, International Action, above n 1, 142–​4. 23 For a list of criteria for the nomination and election of treaty body members, see Handbook for Treaty Body Members, above n 11, 14–​19. 24 Van Boven remarks that the perception of the Convention as foreign policy produced a situation where ‘many States parties . . . nominated active or retired diplomats, foreign ministry officials, former foreign ministers, and similar personalities to serve as members’; he questions whether such membership ‘is fully consistent with

312  Patrick Thornberry mixed membership of diplomats, academics, graduates of NGO or activist sectors and national human rights institutions, etc. No one profession dominates the Committee, nor does one geographical or cultural group: over the years, different regions have been over or under-​represented.25 In practice, the Committee works by consensus, which reduces the possibilities of dominance by regional groups or individuals.26 CERD General Recommendation (GR) 9 strongly recommended that states respect the status of Committee members as independent experts, expressing alarm at the tendency of ‘representatives of States, organizations and groups’ to pressurize the membership.27 The Convention and the rules of procedure do not require members to recuse themselves when their own state is in dialogue with the Committee. The response of the Committee to the Addis Ababa Guidelines, which address such matters in detail,28 while currently supportive, was initially muted,29 a response generated by the sentiment that the Committee is the master of its own procedures and that members have made a solemn declaration to act ‘honourably, faithfully, impartially and conscientiously’ in the discharge of their duties.30

(b)  State party reports The Committee issued a general recommendation in 1972 which included the statement that States parties had an obligation to report ‘whether or not racial discrimination exists in their respective territories’31—​a reminder that the notion of the ubiquity of racial discrimination had not secured broad agreement. Article 9(1) of the Convention obliges each State party to submit a report on the application of the treaty, within one year of the assumption of its obligation and ‘thereafter every two years and whenever the Committee so requests’. The Committee’s examination of state reports32 the terms of Article 8’: T van Boven, ‘Discrimination and Human Rights Law; Combating Racism’ in Fredman, Discrimination and Human Rights, above n 1, 113. However, the presence of active or retired diplomats in a treaty body is by no means unique to CERD. 25 Over-​representation of a particular region is not ipso facto contrary to the Convention: the syntax of Article 8 is that experts must be impartial, etc., while ‘consideration is given’ to the desideratum of equitable geographical distribution. 26 Consensus also ruled in the communications procedure under Article 14: a dissenting opinion was however essayed by CERD member Vázquez following the Committee’s opinion in TBB-​Turkish Union in Berlin/​ Brandenburg v Germany, CERD/​C/​82/​D/​48/​2010 (2013). 27 A/​45/​18, chapter VII.2. Compare Guidelines against Intimidation or Reprisals (‘San José Guidelines) issued by the Chairs of the Human Rights Treaty Bodies, HRI/​MC/​2015/​6, 30 July 2015. 28 Guidelines on the Independence and Impartiality of Members of the Human Rights Treaty Bodies, endorsed by the Chairpersons of the Treaty bodies in 2012: Handbook for Treaty Body Members, pp 28–​32, and Annex I. 29 Decision of the Committee on the Elimination of Racial Discrimination on the Guidelines on the Independence and Impartiality of Members of the Human Rights Treaty Bodies (Addis Ababa Guidelines), A/​68/​18, Annex VIII B—​the Decision may be described as a less than ringing endorsement of the Guidelines. 30 Thornberry, Confronting Racial Discrimination, above n 1, 243. 31 UN Committee on the Elimination of all forms of Racial Discrimination, ‘General Recommendation 2’ (25 February 1972), A/​8718, c­ hapter 9 A. 32 The guidelines of the various treaty bodies relating to the part of state reports containing general information were consolidated into a single text, now found in a ‘common core document’. Guidelines for the ‘common core document’ and the individual treaty-​specific guidelines are found in HRI/​GEN/​2/​Rev.5; guidelines specific to CERD are set out in CERD/​C/​2007/​1.

The Committee on the Elimination of Racial Discrimination  313 remains the centrepiece of its work. The examination of reporting countries places a heavy burden on the Committee, especially in view of the lack of any preparatory session,33 while to reduce the burden on States parties, CERD accepts multiple reports in one document.34 To insist that the reporting cycle must always be maintained might amount to a punitive measure—​the uncomfortable reality is that, at present resource levels, if all states reported on time, the system would grind to a halt.35 The responsibility of the ‘country rapporteur’ is ‘to prepare a thorough study and evaluation of each state report, to prepare a comprehensive list of questions to put to representatives of the reporting state and to lead the discussion in the Committee’.36 The identity of country rapporteurs is currently in the public domain. Until recently, a feature of the CERD procedure was that no list of questions was sent to the state party in advance of proceedings. The claimed advantage of the methodology was that it allowed for ‘a spontaneous, frank and wide-​ranging discussion of issues’.37 CERD subsequently moved to a list of issues approach and has modified this to a ‘list of themes’, in order once more to allow for open discussion.38 The list of issues/​questions approach had produced situations where the Committee (country rapporteurs in particular) was deluged by information supplied at a late stage by reporting states, rendering it almost incapable of assimilation.39 Discussion of the draft concluding observations takes place in closed meetings; the immediately previous practice of discussing concluding observations in public session was abandoned.40 The interests of transparency appear to have been outweighed by concerns that free discussion of country situations could be inhibited, especially when representatives of State parties under review were present at the meetings. Concluding observations of the Committee are structured into an ‘introduction’, ‘positive aspects’, ‘concerns and recommendations’, and ‘other recommendations’. The main recommendations supposedly include only matters brought up in the Committee’s dialogue with the State party.41 The number of ‘standard paragraphs’ tagged on at the end of the observations seems to be increasing, with a limited degree of ‘customization’. One such paragraph of particular importance in the context of racial discrimination is the ‘languages’ paragraph, which, with some variation in vocabulary, encourages the dissemination of the Committee’s observations ‘in the official and other commonly used languages, as appropriate’, which would include minority and 33 For the history of Committee sessions, see Banton, International Action, above n 1, 143. 34 A/​45/​18, para  29. 35 Concept Paper, above n 13, Annex 1. 36 CERD SR.827, paras 40, 52–​75. 37 A/​51/​18, para  596. 38 A/​65/​18, chapter XII, para 85. 39 The Committee is trialling a simplified procedure for some States parties through gradual implementation, offering it to States parties whose reports are overdue by more than 5 years, and prioritizing it for States parties whose reports are overdue by 10 years: A/​70/​18, para 56. 40 A/​58/​18, Annex IV . Discussion of concluding observations in private session marked a return to a practice of the Committee which had existed until 1996: Thornberry, Confronting Racial Discrimination, above n 1, 244. 41 The dialogue with France in 2010 was a case in point, with members hesitating on the inclusion of references in the concluding observations to Roma ‘repatriations’ that took place shortly after the dialogue: the observations eventually made such a reference—​A/​65/​18, p. 55, para 14.

314  Patrick Thornberry indigenous languages. The practice of suggesting the ‘vernacularization’ of concluding observations attempts to shorten the distance between the international body and the targets of discrimination—​who may not understand the official or national languages of States parties, an important consideration given the Committee’s regular focus on ethnic minorities and indigenous peoples. The concluding observations are made public at the end of the CERD session. Comments by States parties on the observations are included in the Committee’s annual report to the UN General Assembly. A limited number of states have insisted on replying to concluding observations using this method; their comments may, however, touch on fundamental disagreements between the Committee and the State party, such as India’s rejection of the Committee’s inclusion of caste under racial discrimination,42 and Iran’s rejection of concluding observations on the Baha’i, the situation of which continued to be regarded by Iran as ‘an issue which is totally beyond the mandate’ entrusted to the Committee.43 The generic recommendation that (subsequent) reports address all the points raised in the concluding observations has stimulated a change of style whereby reports may be largely based on such responses.44 Concluding observations on state reports (normally) identify three or four recommendations for early reporting back by governments in view of the specificity or urgency of situations. The procedure assists in laying a basis for a protraction of dialogue and the furthering of national processes for internalization of norms. The responses generally concentrate on factual ‘clarifications’. Responses perceived as unsatisfactory by the Committee may be the subject of further requests for information.45 In addition to the paragraphs selected for follow-​up, current practice is to identify a small number of recommendations ‘of particular importance’, for which detailed information on concrete measures taken to implement them is requested for inclusion in the next periodic report.46 On the treaty body system in general, Alston concluded that there ‘is still considerable room for improvement in the quality of concluding observations, especially in terms of their clarity, degree of detail, level of accuracy and specificity’.47 There has been a movement in recent CERD observations towards greater specificity and ‘bite’ in content and presentation, as well as in length.48 Beyond this increased sharpness, arguments for a 42 India, A/​62/​18, Annex X, discussed extensively in Thornberry, The International Convention, above n 1, especially ch 6. 43 A/​58/​18, Annex VII, para 4; see also A/​65/​18, Annex VII. The Committee had referred to the Baha’i as suffering from discrimination on ethnic and religious grounds, a statement that, in the view of Iran, was outside the scope of a convention on racial discrimination. 44 A striking example is the report of Australia, CERD/​C/​AUS/​18-​20 (examined by the Committee in 2017), which consists almost entirely of responses to concluding observations. 45 The follow-​up procedure is the subject of a specific chapter in the annual report of CERD to the General Assembly. 46 For an account of the review procedure, designed to encourage submission of reports, see Thornberry, The International Convention, above n 1, ch 4. 47 E/​CN.4/​1997/​74, para  109. 48 Two random examples include the 2008 observations on the USA, CERD/​C/​USA/​CO/​6, 46 paragraphs, and the 2010 observations on Australia, CERD/​C/​AUS/​CO/​15–​17, 34 paragraphs. According to Inter-​Committee meeting documentation, in 2010 ICERD’s seven substantive articles generated conclusions averaging six to seven pages—​HRI/​ICM/​2011/​2, para 28, table 5. Regarding presentation of the concluding observations, issues under

The Committee on the Elimination of Racial Discrimination  315 tougher and more directive approach to the concluding observations are not always reconcilable with the need for constructive and enduring dialogue between experts and governments.49 While analysis, critique and proposal are the essence of their work, treaty bodies are not in a position to sustain Manichean discourses of good and evil in their treatment of reporting states; nor have the treaty bodies mysteriously gained extra powers of coercion of the recalcitrant.50 The Convention is a ‘worldly’ text;51 sovereign statehood and respect for it stand as major elements of that world.

(c)  Early warning and urgent action The Committee has developed an early warning and urgent action procedure (EW/​UA) to address patterns of racial discrimination which may lead to greater violence,52 or even slide towards genocide,53 adopting a working paper on preventive and reactive measures in 1993.54 The distinction between the types of measures in the working paper was explained by one of its promoters as ‘a distinction between early-​warning measures for preventing structural problems from escalating into conflicts and urgent action measures for situations requiring the immediate attention of the Committee’.55 The working paper envisaged the addressees for expressions of concern and recommendations, in addition to the State party concerned, to include the special rapporteur on contemporary forms of racism,56 other human rights bodies dealing with the question, and ‘the Secretary-​General, along with a recommendation that the matter be brought to the attention of the Security Council’. CERD adopted new early warning and urgent action guidelines at its seventy-​first session in 2007.57 The guidelines recall the 2004 ‘Stockholm’ speech of the Secretary-​ General on prevention of genocide,58 and refer to persistent patterns of racial discrimination ‘in some cases with genocidal dimensions’.59 Most situations addressed particular headings are currently presented separately in successive paragraphs, the ‘concern’ paragraph, followed by the recommendation paragraph. 49 By Article 9, the Committee ‘may make suggestions and general recommendations’ based on the reports, etc., hardly a recipe for an overbearing approach to governments. 50 For critical reviews of powers, etc of treaty bodies, see H Keller and G Ulfstein (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge University Press, 2012). CERD may be regarded as among the more reticent treaty bodies in terms of assertions of juridical powers. 51 See B Ashcroft and P Ahluwalia, Edward Said (London and New York: Routledge, 1999) 1–​48. 52 At its 65th session, the Committee established a working group on early warning and urgent action procedures, A/​59/​18, Annex XII. 53 The Committee held a thematic discussion on prevention of genocide at its 66th session in 2005: CERD/​C/​ SR.1683-​84. A ‘Declaration on the Prevention of Genocide’ was adopted at the same session. At its sixty-​seventh session, CERD adopted a follow-​up to the Declaration on ‘indicators of patterns of systematic and massive racial discrimination’, in order, inter alia, ‘to assess the existence of factors known to be important components of situations leading to conflict and genocide’: A/​60/​18, para 20. 54 A/​48/​18, para 18 and annex III. 55 De Gouttes, CERD/​C/​SR.974/​Add.1, para 5. 56 The Special Rapporteur on Contemporary forms of Racism, etc. 57 A/​62/​18, Annex III, Guidelines for the Early Warning and Urgent Action Procedure [Revised Guidelines]. 58 Ibid, para 4. 59 Ibid, para 7.

316  Patrick Thornberry by the guidelines fall short of genocide, and the ‘indicators’ for triggering the procedure include the important qualification that, since such indicators ‘may be present in situations not requiring immediate attention to prevent and limit serious violations of the Convention, the Committee shall assess their significance in light of the gravity and scale of the situation’.60 Subject to the ‘gravity and scale’ criterion, the list of indicators61 is broadly similar to that of 1993. References to encroachment ‘on the traditional lands of indigenous peoples or forced removal of these peoples from their lands’, and ‘polluting or hazardous activities that reflect a pattern of racial discrimination with substantial harm to specific groups’ strike new notes. The list of potential addressees is expanded and varied in the 2007 text to include the Human Rights Council, the Special Adviser on the Prevention of Genocide, and regional intergovernmental organizations and human rights mechanisms.62 The bulk of cases brought under the procedures are dealt with by letters sent by the Chairman to the State party concerned; other cases may be the subject of a committee decision or statement.63 Many current cases refer to indigenous peoples—​applying the ‘gravity and scale’ criterion, it may be argued that threats (such as those exampled in the guidelines) that might not disturb a larger group can result in devastating cultural and material losses for indigenous societies. The Committee has addressed issues regarding the Roma, generalized ethnic violence as well as violence or discrimination against foreigners and refugees, and tends to comment on a conflict wherever it perceives the presence therein of an ethnic/​racial element. Knowledge of this procedure has grown steadily amongst NGOs and community groups. The procedure does not depend on a state having submitted a report and is generally engaged by an NGO/​community organization, though the Committee or a member thereof can also engage the procedure ex proprio motu.64 The procedure is justified under article 9(1)(b) of the Convention, which refers to a Committee power to request a report at any time. States may sense that the CERD procedure is a loose cannon, and challenge its application as well as the substance of the claim, especially where they have not accepted the individual communications procedure under article 14. Despite their reservations, the procedure has been maintained as a significant addition to the Committee’s repertoire, sometimes with considerable topicality.65 A high level of publicity has been accorded to statements such as those on the eviction of Travellers from 60 Ibid, para 12. 61 The indicators are set out in para 12 of the revised guidelines. 62 At its 77th session in 2010, the Committee sent letters to the Council of Europe and the European union expressing deep concern regarding the resurgence of racism against Roma in several European States, including mass expulsions: A/​65/​18,  10. 63 Notable published decisions concerning indigenous peoples include Decision 1(66) on New Zealand Foreshore and Seabed Act 2004, A/​60/​18, chapter II; Decision 1(68) on the United States of America—​concerning the Western Shoshone, A61/​18, chapter II A. 64 It would be regarded as inappropriate for a State party to resort to this procedure against another State—​such situations may be appropriately addressed under the Article 11 inter-​State procedure. 65 A specific chapter in the annual reports includes summary information on ‘prevention of racial discrimination, including early warning and urgent action procedures’; the texts of letters sent by the Committee to States parties many be found on the Committee’s web page; decisions invoking the procedure are published in the Committee’s annual report to the UN General Assembly.

The Committee on the Elimination of Racial Discrimination  317 Dale Farm in the UK,66 and critical comments by the Committee on the response of the US authorities to the events in Charlottesville in 2017.67

(d)  General recommendations Under Article 9 of the Convention, the Committee may make ‘suggestions and general recommendations based on examination of the reports and information received from the States parties’.68 ‘General recommendation’ has been treated as recommendations that function within concluding observations addressed to the general situation of a State party, as opposed to specific determinations under the Article 14 procedure; and as distillations of the Committee’s views on matters of general interest to all stakeholders—​ styled general recommendations, equivalent to general comments emanating from other treaty bodies.69 Thirty-​five such general recommendations have been adopted in the life of the Committee, dealing with obligations of States parties under specific Articles or principles of the Convention,70 specific aspects and modalities of discrimination,71 fields of concern for the principle of non-​discrimination,72 institutions to address racial discrimination,73 particular groups or categories,74 as well as general recommendations on the right to self-​determination,75 follow-​up to the Durban World Conference,76 and to the Durban Review Conference.77 Some initial recommendations were prompted by the reluctance of states to admit the existence of discrimination on their territories.78 Others are prompted by reservations made to the Convention,79 the

66 Statement on Dale Farm, A/​ 66/​ 18, ch 2—​ available at:  https://​www.theguardian.com/​uk/​2011/​sep/​02/​ dale-​farm-​travellers-​eviction-​solution. 67 https://​www.nytimes.com/​2017/​08/​23/​world/​un-​trump-​racism-​charlottesville.html; https://​www.theguardian. com/​world/​2017/​aug/​23/​charlottesville-​un-​committee-​warns-​us-​over-​rise-​of-​racism; https://​www.washingtonpost. com/​news/​worldviews/​wp/​2017/​08/​23/​a-​u-​n-​panel-​rebukes-​u-​s-​for-​horrific-​events-​in-​charlottesville. 68 Brief accounts of progress in unpacking this ambiguous formula are provided in Banton, International Action, above n 1, 158–​60, and The First Twenty Years:  Progress Report of the Committee on the Elimination of Racial Discrimination, HR/​PUB/​91/​4 (New York: United Nations, 1991), paras 117–​31. 69 The use of ‘recommendation’ rather than ‘comment’ suggests that CERD directs itself more to implementation by States parties than to abstract ‘comments’ of a quasi-​academic nature. However, many general recommendations elaborate on interpretative positions. 70 For example, GR 1, GR 7, and GR 15 on Article 4; GR 8 on Article 1, paras 1 and 4; GR 9 on Article 8, para 1, GR 14 on Article 1, GR 16 on Article 9, GR 19 on Article 3, GR 20 on Article 5, GR 22 on Article 5 and refugees and displaced persons, GR 24 on Article 1, GR 26 on Article 6, and GR 32 on special measures. 71 GR 25 on gender-​related dimensions of racial discrimination; GR 35 on combating racist hate speech. 72 GR 31 on racial discrimination in the field of criminal justice. 73 GR 17 on the establishment of national institutions to facilitate the implementation of the Convention, and GR 18 on the establishment of an international tribunal to prosecute crimes against humanity. 74 GR 23 on the rights of indigenous peoples; GR 27 on discrimination against Roma; GR 29 on Article 1, para 1 of the Convention (descent); GR 30 on discrimination against non-​citizens; GR 34 on racial discrimination against people of African descent. 75 GR 21. 76 GR 28 on ‘Follow-​up to the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance’. 77 General Recommendation 33. 78 See for example GR 2 and GR 5. 79 In response to reservations made against Article 4 in order to protect freedom of expression, the Committee is resolute in its view that ‘the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the right to freedom of opinion and expression’: GR 15.

318  Patrick Thornberry situation in particular states or groups of states, the prevalence of certain patterns of discrimination, the vulnerable situation of specific communities. Developments elsewhere in the field of human rights influence the drafting of the general recommendations: GR 23 on indigenous peoples echoes language used in the (1997) UN draft declaration on the rights of indigenous peoples, and ILO Convention No. 169;80 GR 27 on the Roma is at once influenced by debates elsewhere and contributes to such debates, prospectively acting as a catalyst to further action; GR 32 on special measures followed upon General Recommendation 25 of CEDAW on the equivalent topic in that convention; the development of GR 35 on racist hate speech benefited from the promulgation of General Comment 34 of the Human Rights Committee on freedoms of opinion and expression.81 In line with practice elsewhere, the utilization of the general recommendations is interstitial: the Committee expects state reports to conform to patterns set out in the recommendations and will direct questions to state representatives in the light of the accumulated wisdom of the recommendations. The development of a general recommendation is largely a matter of individual initiative to persuade colleagues to approve and refine the proposal collectively. Until recently, it was not CERD practice to open out the drafting process and solicit interventions through publicity on its website; draft GR 36 has, however, been uploaded for comment. The general recommendations on the Roma, descent/​caste, non-​citizens, special measures, discrimination against people of African descent, and racist hate speech, followed on from an open ‘thematic discussion’, after which the drafting process was essentially ‘internalised’.82 The general recommendations elaborate and clarify the import of many Convention provisions, even if they have not elaborated them evenly, and carry the full authority of the Committee. CERD has travelled a distance since some members could state with confidence that it had no mandate to interpret the Convention.83

(e)  Article 14 communications Article 14 deals with complaints from ‘individuals or groups of individuals’ claiming to be victims of violations of the Convention. The procedure is optional, and the number 80 Thornberry, Confronting Racial Discrimination, above n 1, 260–​2. 81 The Rabat Plan of Action on the Prohibition of Advocacy of National, Racial or Religious Hatred that Constitutes Incitement to Discrimination, Hostility or Violence (2012) was also influential in the drafting of CERD GR 35—​for which the present author acted as co-​rapporteur. 82 Thematic discussions open the Committee to contributions from UN human rights bodies, NGOs, etc.; general debates are for the Committee itself. For comments on internalization versus external input and scrutiny for the point of view of transparency and legitimacy, see Helen Keller and Leena Grover, ‘General Comments of the Human Rights Committee and their Legitimacy’ in Keller and Ulfstein (eds), UN Human Rights Treaty Bodies, pp 116–​98. 83 Banton, International Action, pp 102–​4, 126, and 158–​60 cites (p 126) the opinion of the UN office on Legal Affairs that ‘the right to give authoritative interpretations of the Convention . . . rested . . . in the first instance, with CERD itself, as the body responsible for monitoring compliance with the Convention, and ultimately with the States parties’: A/​C.3/​40/​SR. 46. The present author, in his capacity as a member of CERD, nonetheless noted comments from members during the drafting of General Recommendation 32 that it was for states, not the Committee, to interpret the Convention.

The Committee on the Elimination of Racial Discrimination  319 of acceptances is low—​59—​relative to the number of States parties.84 The Committee’s procedure is subject to the ‘usual safeguards’ including a ‘no anonymity’ rule,85 and the requirement to exhaust domestic remedies unless ‘the application of the remedies is unreasonably prolonged’.86 The victim requirement and the phrase ‘groups of individuals’ in Article 14(1) were the subject of observations by the Committee in The Jewish Community of Oslo et al. v Norway,87 where three organizations and a number of individuals complained to the Committee following the acquittal of a pro-​Nazi speaker on charges under the Norwegian Penal Code. The authors of the communication claimed they were victims because of the general inability of Norwegian law to protect them from dissemination of anti-​Semitic and racist propaganda, and also because of their membership of a particular group of potential victims facing an imminent risk of racial discrimination.88 The Committee agreed with the authors’ submissions, considering that, in the circumstances, they had established that they belong to a category of potential victims.89 Additionally, the Committee took the view that it did not consider the fact that three of the authors are organizations posed any problem to admissibility  . . .  Article 14  . . .  refers specifically to the Committee’s competence to receive complaints from ‘groups of individuals’.90 The Committee considered that to interpret this . . . to require that each individual within the group be an individual victim of an alleged violation, would be to render meaningless the reference to ‘groups of individuals’ . . . The Committee considered that, bearing in mind the nature of the organizations’ activities and the classes of person they represent,91 they too satisfied the ‘victim’ requirement in Article 14.92

The petition in TBB-​Turkish Union v Germany was admitted by the Committee which found victim status in light of (a) the organization’s activities and aims in furtherance of equality and non-​discrimination; and (b) the group of individuals it represents ‘namely persons of Turkish heritage in Berlin and Brandenburg’; and (c) that it had been directly affected by the impugned speech critical of Turks in Germany: the Committee considered that the fact that the petitioner was a legal entity did not constitute an obstacle to admissibility.93 84 Above n 7. 85 However, identities will not be revealed without the consent of the petitioner—​Article 14(6)(a). 86 Article 14(7)(a). 87 CERD/​C/​67/​D/​30/​2003 (2005). 88 Jewish Community of Oslo, para 7.3. Compare the statement in the Documentation and Advisory Centre on Racial Discrimination v Denmark, CERD/​C/​63/​D/​28/​2003 (2003), where the Committee (para 6.6.) distinguished its position on victim status as not admitting an actio popularis. 89 Jewish Community of Oslo, para 7.3. 90 Earlier, the Committee had stated that it did ‘not exclude the possibility that a group of persons, representing, for example, the interests of a racial or ethnic group may submit an individual communication, provided that it is able to prove that it has been an alleged victim of a violation of the Convention or that one of its members has been a victim’: Documentation and Advisory Centre, para 6.4. see also POEM and FASM v Denmark, A/​58/​18, CERD/​C/​ 62/​D/​22/​2001 (2003), para  5. 91 The three organizations were: the Jewish Community of Oslo, the Jewish Community of Trondheim, and the Norwegian Antiracist Centre. 92 Jewish Community of Oslo, para 7.4. 93 TBB-​Turkish Union in Berlin/​Brandenburg v Germany, CERD/​C/​82/​D/​48/​2010 (2013), para  11.

320  Patrick Thornberry Consideration of petitions takes place in closed meetings. By August 2017, from sixty-​one complaints, the Committee had adopted thirty-​four final opinions on the merits, with violations found in eighteen cases.94 In 2005, CERD decided to adopt a specific procedure for follow-​up to the opinions under Article 14, adding two new paragraphs to rule 95 of the rules of procedure.95 Prior to this, the Committee had only informally monitored the extent to which the States parties implemented its recommendations. Annual reports now include a table of follow-​up replies received from States parties, categorized as satisfactory or unsatisfactory, a categorization that depends on whether the replies ‘reveal a willingness by the State party to implement the Committee’s recommendations or to offer an appropriate remedy to the complainant’.96 The communications procedure under the Convention is under-​used in comparison with that of the Human Rights Committee. The range of States parties which have been the subject of Article 14 communications is also narrow—​a minority of States parties from the fifty-​nine states opting into the procedure. Many cases relate to procedural inadequacies in the investigation of complaints of racial discrimination under the legal system of the State party concerned (Article 6);97 communications regarding Article 4 are also a prominent feature of the archive.98

(f)  Inter-​State disputes The Convention envisages a role for the Committee in inter-​State complaints under Articles 11 to 13, and a role for the International Court of Justice under Article 22. Until recently, the CERD procedure had never been used, though there have been instances of what Banton and others referred to as ‘disguised inter-​State disputes’ in the life of the Convention.99 Three inter-​State communications were submitted to the Committee in 2018: Qatar v Kingdom of Saudi Arabia; Qatar v United Arab Emirates (UAE); State of Palestine v Israel. Dispute resolution under Article 22 was highlighted by Georgia v Russian Federation before the International Court of Justice,100 where Georgia attempted to utilize that article,101 alleging, inter alia, Russian sponsorship of racial discrimination up to and including mass expulsion of ethnic Georgians in connection

94 A/​72/​18, para  41. 95 A/​60/​18, Annex IV II; background is set out, ibid, paras 447–​50. 96 A/​65/​18, 130, para 70. 97 Thornberry, The International Convention, above n 1, Ch 16. 98 Ibid, Ch 11. 99 Banton, International Action, above n 1, 108–​12. By which is meant using Article 9 reports to criticize the actions of other states. Banton (110) instances criticism of Israel and the USA in the reports of Syria and Panama, and criticism of Turkey by Cyprus, even though the states criticized were not, at the time, parties to the Convention. 100 Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination, Georgia v Russian Federation (Preliminary Objections), Judgment of 1 April 2011. Also, Ukraine v Russian Federation (Provisional Measures), 19 April 2017. 101 Which provides that disputes as to the application of the Convention not settled by negotiation ‘or the procedures expressly provided for in this Convention’ may be referred to the International Court of Justice for settlement.

The Committee on the Elimination of Racial Discrimination  321 with conflicts in South Ossetia and Abkhazia. The Court, in upholding the Russian preliminary objections, observed that under Article 22 of CERD, negotiations and the procedures expressly provided for in CERD constitute preconditions to the exercise of its jurisdiction, and considering the factual finding that neither of these two modes of dispute settlement was attempted by Georgia, the Court does not need to examine whether the two preconditions are cumulative or alternative.102

Unlike the situation for Article 22, no specific reservations have been made with respect to Articles 11 to 13.103 Prior to the lodging by Qatar and Palestine of communications under the CERD procedure, it was reasonable to assume that recourse to the International Court of Justice under Article 22, rather than the CERD procedure, would be the preferred route for addressing inter-​state disputes. The positive outcome for Qatar in terms of the affirmation by CERD of its jurisdiction and the admissibility of the communications may encourage other States parties to pursue claims using the Committee mechanism.104 Whilst Okowa doubts whether the elements of conflict between Russia and Georgia (and perhaps in subsequent cases) presented to the Court were really ‘about’ the Convention and suspects that they were really ‘about’ other areas of international law such as the use of force, characterizations as one or the other are not mutually exclusive.105 If Convention-​based arguments may be invoked instrumentally by contending parties, this does not negate the utility of employing the principle of racial discrimination to ground legal and moral assessments of conduct, up to and including ethnic cleansing and genocide.

(g)  Liaison with UN bodies On reporting procedures, there is no specific reference in the Convention or CERD’s rules of procedure to modalities of interaction with specialized agencies or other UN bodies.106 In practice, the bodies with whom the Committee co-​operates vary, and are 102 Georgia v Russian Federation, Preliminary Objections, para 183. A detailed account of the phases of the case—​ provisional measures, and preliminary objections—​is presented in Thornberry, The International Convention, above n 1, ch 19. 103 Because of the reservation by Saudi Arabia to Article 22, Qatar is pursuing its case at the ICJ only against the UAE, for which provisional measures have been ordered (23 July 2018). The phase of preliminary objections is currently under way. 104 See Qatar v Saudi Arabia, decision on jurisdiction, CERD/​C/​99/​5, on admissibility, CERD/​C/​99/​6; Qatar v UAE, decision on jurisdiction, CERD/​C/​99/​3, on admissibility, CERD/​C/​99/​4. The Committee rejected the claim by the UAE that parallel proceedings before the Committee and the ICJ constituted an abuse of process. 105 P Okowa, ‘The International Court of Justice and the Georgia/​Russia Dispute’ (2011) HRLR 11/​4, 739–​57. 106 In accordance with Committee Decision 2(VI) of 1972, concerning co-​operation with the ILO and UNESCO, both organizations are invited to attend the sessions of the Committee: GAOR, 27th session, Supplement No. 18, A/​8718, chapter IX, section B.

322  Patrick Thornberry recalled in Chapter 1 of the Committee’s annual report.107 Latterly, co-​operation has been strongest with the ILO and the UNHCR: CERD systematically receives information from these organizations at the request of the Secretariat. For example, ILO reports on the application of the Discrimination (Employment and Occupation) Convention (No. 111) and the Indigenous and Tribal Peoples Convention (No. 169), as well as other relevant information, are made available to the members of CERD. There is also occasional consultation with UN Special Rapporteurs on racial discrimination and other issues.108 Knowledge of the workings of other institutions including treaty bodies is facilitated by the Secretariat; meetings of chairpersons are of further assistance.109 CERD is also informed of developments in the Universal Periodic Review (UPR) system of the Human Rights Council, and, reciprocally, the observations of CERD and other treaty bodies are factored into the UPR process.110

(h)  Sources of information: NGOs and National Human Rights Institutions ICERD does not expressly envisage a role for NGOs. In its early operation of the reporting system, CERD experienced difficulties with how to treat information provided by NGOs or media reports, and ‘the debate about permissible sources continued intermittently for twenty years’.111 Matters came to a head in 1991 when the Committee decided that members, in addition to information from state reports, ‘must have access, as independent experts, to all other available sources of information, governmental and non-​governmental’.112 The term ‘examination’ (of reports) in Article 9 suggests a broad approach:  information contained in state reports must necessarily be tested against external reference points, otherwise the ‘examination’ would be drained of significance. However, while NGOs furnish indispensable services to the Committee, their information requires appraisal and evaluation by members on a similar basis to other information: they are not a unified constituency, they vary in quality, and may have limiting agendas.113 In addition to the submission by NGOs of written material to the 107 The co-​operation rubric in the Committee’s annual report for 2014/​5 refers to the ILO, the UNHCR, UNESCO and the special procedures of the Human Rights Council and the Regional Human Rights Mechanisms: A/​70/​18, Chapter I E. 108 Special procedures mandate holders (and members of other treaty bodies) have attended CERD sessions in the context of thematic debates and ad hoc debates, and updating on their work in fields of relevance to the Committee. 109 The first meeting of chairpersons of treaty bodies was convened by the Secretary-​General in August 1984 pursuant to GA Res. 38/​117. The first inter-​committee meeting was held in 2002—​report in HRI/​ICM/​2002/​3—​ the meetings were discontinued in 2011. 110 For comment on the importance of synergies between treaty bodies and the UPR, see Response of November 2010 by Non-​Governmental Organisations to the Dublin Statement on treaty body reform (Dublin NGO Response), para 28. 111 Banton, International Action, above n 1, 103. 112 Decision 1 (XL), A/​46/​18, Annex VII B. 113 CERD has no explicit rule on confidentiality of NGO information—​compare the practice of other treaty bodies in HRI/​MC/​2006/​4, para 96. However, if an NGO requests confidentiality for its submissions to CERD, such requests will be honoured.

The Committee on the Elimination of Racial Discrimination  323 Committee, including shadow/​alternative reports, the briefing of Committee members by NGOs through informal lunchtime meetings became part of the regular modus operandi. In 2011, CERD commenced a further practice of hearing submissions at the beginning of the week from NGOs on States reporting in that week.114 The Committee has gradually sought to be more open to NGOs.115 The efforts of civil society, national and international NGOs, are vital to Committee work, since its research capacity is limited.116 NGOs contribute best when their submissions are researched and referenced in a manner which can be verified, when they track assertions in the State report, and consolidate their submissions—​overwhelming the Committee with documentation may result in useful points vanishing into the ether. The maintenance of web pages by the Secretariat is likely to have improved the visibility of CERD (and other treaty bodies) to civil society for a computer literate generation; as has webcasting of the public procedures. The Committee recognizes the contribution of accredited national human rights institutions (NHRIs),117 and has developed modalities for their accommodation in reporting and other procedures.118

9.3  Core principles in CERD practice A limited number of issues around the core principles are selected for comment below:  discrimination and the grounds thereof; special measures; segregation; and the problematic of addressing hate speech, while other aspects of the Convention are addressed in passing. The discussions should provide the reader with a sense of how CERD has worked to deliver its mandate, where it has innovated, and where it has been able to draw upon the wider human rights acquis to ground its positions, and where it may have struggled to deliver. The Committee has said on more than one occasion that ‘the Convention, as a living instrument, must be interpreted and applied taking into account the circumstances of contemporary society’.119 As with its procedures, interpretation of ICERD standards has travelled a distance since the 1970s. The immediate ancestry of the Convention is recalled in its preamble, which cites the UN Charter and the Universal Declaration of Human Rights, and the ‘Colonial Declaration’ of 1960. Complex preambular statements draw on disparate sources for the text: legal/​philosophical (references to dignity and equality); scientific (rejecting doctrines of superiority); international relations (references to friendly and peaceful relations among nations, building an 114 A/​65/​18, Chapter XII, para 87. 115 A current ‘standard’ paragraph in concluding observations recommends consultations or dialogue with civil society. 116 The ‘country presentations’ prepared by the Secretariat now include NGO material, following some initial hesitation from CERD members. 117 GR 17, A/​48/​18, Chapter VIII B; A/​62/​18, Annex IX, Rule 40 (2). 118 ‘CERD provided NHRIs . . . present with the opportunity to make an oral presentation in the plenary on the second day of the consideration of the State party’s report. NHRI representatives were seated separately from representatives of NGOs, with a sign clearly identifying them’: HRI/​MC/​2006/​4, para 94. 119 GR 32, para 5.

324  Patrick Thornberry international community free from discrimination); and security (discrimination capable of disrupting peace and security). The text is ambitious in rejecting a doctrine of racial superiority as, inter alia, ‘scientifically false’.120 The preamble also refers to the States parties’ alarm at ‘manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred’ such as policies of apartheid, segregation, or separation. The range of the ‘alarm’ may have widened rather than narrowed in view of CERD’s resolute insistence that no State is free from the taint of racial discrimination, and that certain situations warrant urgent and immediate action. In the drafting of the instrument, many delegations expressed their conviction that racial discrimination had little or no purchase outside territories suffering under colonialism and apartheid, perceptions at odds with the broad definition of racial discrimination they had agreed upon in Article 1.

(a)  Racial discrimination, grounds and victims The term ‘racial discrimination’ is defined as ‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’.121 GR 30 observes that differential treatment will ‘constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim’.122 As a logical corollary, GR 14 observes that ‘differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate’.123 The term ‘non-​discrimination’ does not signify uniform treatment when there are relevant differences in situation between one person or group and another.124 The Committee has also observed that the application of the principle of non-​discrimination requires that the characteristics of groups be taken into consideration125 and that, inter alia, ‘policies of forced assimilation amount to racial discrimination’.126 The ‘purpose or effect’ aspect of discrimination has seen the Committee ‘import’ a range of terms to capture modalities of discrimination—​including direct and 120 Keane, Caste-​Based Discrimination, above n 1, 174–​79, observes that the Convention does not reject the theory of racial differentiation as such, and (178) that that this is ‘an anomaly that should be corrected by the Committee’. 121 Article 1.1. 122 General Recommendation No. 30, para 4. 123 A/​48/​18, chapter VIII B. 124 ‘To treat in an equal manner persons or groups whose situations are objectively different will constitute discrimination in effect, as will the unequal treatment of persons whose situations are objectively the same’: GR 32, para 8. 125 Ibid. 126 CERD/​C/​TKM/​CO/​5, para 12 (Turkmenistan).

The Committee on the Elimination of Racial Discrimination  325 indirect discrimination, de facto and de jure discrimination, structural and institutional discrimination. The Committee’s understanding of discrimination has been developed incrementally, with GR 32 providing perhaps the broadest account of the concept.127 The Convention addresses discrimination in ‘public life’, a term undefined in the Convention but which must take its colour from the full range of activities implicated in Convention prohibitions, and is not confined to discrimination in the sphere of public administration.128 The Convention obliges states to intervene in cases of discrimination by non-​state actors—​by, for example, prohibiting and bringing to an end ‘racial discrimination by any persons, group or organization’;129 public spaces are explicitly referred to in Article 5(f) prohibiting discrimination on the ‘right of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafes, theatres and parks’. Boyle and Baldaccini emphasize the relevance of the Convention’s reach into private spaces in the light of the contemporary phenomena of ‘shrinking government’.130 The private spaces subject to the application of the principle of non-​discrimination include organizations with public power. The extent to which the principle reaches into private and family life has not been fully clarified by the Committee, though the general tendency in current practice is to expand its operative scope.131 Regarding the ‘grounds’ of discrimination, and bearing in mind the disturbing history of ‘race’, and ‘scientific racism’,132 it should be noted that the umbrella term in the Convention is not ‘race’ but ‘racial discrimination’, a concept applicable to any or all of the five listed grounds.133 While the additions lessen the difficulty of deploying ‘race’ in the Convention,134 States parties occasionally express their discomfort with it on account of its potentially ‘biological’ implications,135 while the Committee has tended to insist that the full vocabulary of article 1(1) should be translated into domestic law by the State party.136 127 GR 32 (special measures), paras 6–​10. 128 Meron, Meaning and Reach, above n 1, 293. 129 Article 2(d). See also Article 4(a). In GR 20—​A/​51/​18, Annex VIII—​the Committee States (para 4): ‘To the extent that private institutions influence the exercise of rights or the availability of opportunities, the State Party must ensure that the result has neither the purpose nor the effect of creating or perpetuating racial discrimination’. 130 Above n 1, 159. 131 Banton, International Action, above n 1, 195—​drawing on the travaux. GR 25 on gender-​related dimensions of racial discrimination delves deepest in addressing (paragraph 2)  ‘discrimination against women in private spheres of life’. On the other hand, internal Committee discussions of discrimination ‘in all spheres of public and private life’ have generally resulted in a narrowing of the formula. The criterion of ‘public life’ is discussed at length in Thornberry, The International Convention, above n 1, Ch. 6. 132 Banton, International Action, above n 1, passim. 133 Banton, ibid, 52, comments that the listing of ‘grounds’ of discrimination ‘made possible a solution to what was otherwise an intractable problem . . . Any method of combating discrimination which made use of a racial classification would legitimise a view of human differences which had been used to justify the denial of human rights. By defining discrimination as action on the grounds of race, sex, language and religion . . . it was possible to bypass any arguments about the nature of these differences in themselves’. 134 Tzvetan Todorov, ‘Race, Writing and Culture’ in Henry Louis Gates, Jr (ed), Race, Writing and Difference (Chicago: University of Chicago Press, 1986) 370–​80. 135 The ‘biologism’ was explicitly rejected by Cuba in its report of 2010 to the Committee in favour of the notion of ‘race’ as a social construct: CERD/​C/​CUB/​14-​18, paras 2–​5. The Committee has criticized States for using terms such as ‘pure blood’ and ‘mixed blood’: concluding observations on the Republic of Korea, A/​62/​18, para 478. 136 It has been noted by Vandenhole, 90, that ‘race as such has extremely seldom been explicitly mentioned as a prohibited ground [but] is to be included as a ground . . . in domestic law’.

326  Patrick Thornberry Contrasting positions are illustrated by reference to, for example, reports of Norway. It was explained by the State party that the absence of the term ‘race’ in its Anti-​ Discrimination Act was because ‘the concept of race is based on biological, hereditary characteristics, grounded in theories that have no justifiable scientific basis or content. Moreover, the concept has strong negative connotations’.137 CERD however, expressed concern about its omission,138 fearing that the legislation would offer only incomplete protection against racial discrimination. Both Norway and CERD maintained their positions in subsequent reporting dialogues.139 The Committee’s view appears to be related to the possibility that legislative gaps may leave potential victims unprotected rather than any commitment to the idea of ‘races’. CERD has not formally repudiated the concept of ‘race’ and racial difference, despite being urged to do so.140 The import of the Committee’s work destabilizes the biologism of ‘race’ and rejects any concept of racial superiority. The bulk of current CERD activity addresses discrimination based on ethnic or cultural characteristics; the inclusion of ‘ethnic’ and ‘national’ among the grounds of discrimination has facilitated a shift in the discourse. Practice has ‘uncovered’ a wide range of contemporary victims of racial discrimination, the ‘others’ of the contemporary imaginary,141 with a breadth of vision that might have surprised the authors of the Convention. There are overlaps among the Article 1 descriptors: the travaux suggest that not every descriptor was understood to mark out a sharply defined conceptual space.142 Victims of racial discrimination emerge from processes of globalization as well as from traditional enmities and practices, historical inequities and traditional systems which continue to produce dehumanizing effects. The Committee has devoted considerable time to minorities including the Roma.143 The Committee has also developed an extensive practice regarding indigenous peoples.144 The range of human rights deprivations suffered by minorities goes beyond violations of the characteristic cultural and linguistic rights set out in dedicated instruments on minority rights.145 In the case of religion, the Committee searches for an ethnic or other connection or ‘intersectionality’ between racial and religious discrimination,146 and has generally kept out of questions which appear to concern religion exclusively. Proposals in 2007 for a 137 CERD/​C/​497/​Add. 1, para  10. 138 A/​61/​18, para  334. 139 CERD/​C/​NOR/​19-​20, paras 8 and 11; CERD/​C/​NOR/​CO/​21-​22, paras 9 and  10. 140 Keane, Caste-​Based Discrimination, above n 1, 178. 141 Patrick Thornberry, ‘“Bringing the Victims to Light” under the ICERD’ in Miodrag A. Jovanović and Ivana Krstić (eds), Human Rights Today: 60 Years of the Universal Declaration (Utrecht: Eleven International Publishing, 2010) 145–​70. 142 Ion Diaconu, ‘The Definitions of Racial Discrimination’, E/​CN.4/​1999/​WG.1/​BP.10. 143 Thornberry, Confronting Racial Discrimination, 257–​66. 144 P Thornberry, ‘Integrating the UN Declaration on the Rights of Indigenous Peoples into CERD Practice’ in S. Allen and A. Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Oxford and Portland, Oregon: Hart Publishing, 2011) 61–​91. 145 On the other hand, protection of the existence and identity of minorities—​Article 1 of the UN Declaration on Minorities—​subsumes an undefined range of protections, up to and including protection from genocide. 146 The statement on Georgia is particularly clear: ‘Religious questions are of relevance to the Committee when they are linked with issues of ethnicity and racial discrimination’: A/​60/​18, para 246. For gender intersectionality or ‘double discrimination’, see Thornberry, The International Convention, above n 1, ch. 6.

The Committee on the Elimination of Racial Discrimination  327 thematic discussion on the relationship between ‘racial and religious discrimination were dropped from the programme of the Committee.147 The grounds of discrimination under Article 1 do not include religion, though Article 5 lists freedom of thought, conscience and religion among rights to be protected from racial discrimination. With regard to ‘hate speech’ against religion, in cases where there is a perception of an overlap between ethnicity and religion, as in discrimination against Jews and Sikhs,148 or against Tatars—​described as ‘Muslim ethnic minorities’149 etc., the Committee has experienced little difficulty in applying the Convention, and has also made reference in concluding observations to Islamophobia,150 and to intolerance and hatred against ‘Muslims’ even without an apparent ‘intersection’.151 Compared with the treatment of the race/​religion intersection in the Committee’s concluding observations on state reports, decisions under Article 14 have been cautious. P.S.N.  v Denmark,152 concerned alleged violations of the Convention through statements published on a website by an MP against immigration and Muslims, under the headline ‘articles no one dares to publish’.153 The opinions expressed were reiterated in an interview given to a newspaper, and some had been previously published. The petitioner filed complaints under the Danish Criminal Code on the grounds that the statements targeted a specific group, namely Muslims. The State party argued against admissibility, stating that the case fell outside the scope of Article 1 of the Convention in referring to Muslims, while acknowledging that ‘it is possible to argue to a certain extent that the statements refer to second-​generation immigrants and set up a conflict between ‘the Danes’ and them, thereby falling to some degree within the scope of the Convention’.154 The petitioner on the other hand contended that ‘Islamophobia, just like attacks against Jews, has manifested itself as a form of racism in many European countries’.155 In its admissibility decision, CERD observed that ‘the impugned statements specifically refer to the Koran, to Islam and to Muslims in General’, without any reference to the five grounds set out in Article 1 of the Convention.156 Further, while the elements in the case file did not allow the Committee to ascertain the intention of the statements, it remained the case 147 A/​62/​18, chapter  XI. 148 Concluding observations on the UK, CERD/​C/​63/​CO/​11, para 20. 149 Concluding observations on Moldova, CERD/​C/​MDA/​CO/​15, para 15. 150 CERD/​C/​63/​CO/​11, para 21. (United Kingdom). Paragraphs 20 and 21 of the UK concluding observations are contextualised as relating to ‘immigrant communities’, an implicit ethnic connection. Para 6 of General Recommendation 35 includes among examples of hate speech dealt with by the Committee ‘expressions of Islamophobia, anti-​Semitism and . . . similar manifestations of hatred against ethno-​religious groups’. 151 See for example concluding observations on Australia, CERD/​C/​AUS/​CO/​14, para 13. Para 5 of General Recommendation 35 distinguishes sharply between attacks on groups protected under Article 1, and criticism of religious beliefs or dogma, citing paragraph 48 of General Comment 34 of the Human Rights Committee that ‘criticism of religious leaders or commentary on religious doctrine or tenets of faith’ should not be prohibited or punished’. 152 A/​62/​18, Annex  V. 153 P.S.N. v Denmark, CERD/​C/​71/​D/​36/​2006 (2007), para 1.1. For perceptive commentary on the Committee’s approach to direct and indirect discrimination with regard to Muslims, see S Berry, ‘Bringing Muslim Minorities within the International Convention on the Elimination of All Forms of Racial Discrimination—​Square Peg in a Round Hole?’ (2011) Human Rights Law Review 11, 433–​50. 154 P.S.N. v Denmark, para 4.1. The State party also contended (para 4.12) that ‘the right to freedom of expression is particularly imperative for an elected representative of the people’. 155 Ibid, para 5.3. 156 Ibid, para 6.2.

328  Patrick Thornberry that that ‘no specific national or ethnic groups were directly targeted’, and that Muslims currently living in the State party were of heterogeneous origin.157 The Committee recognized ‘the importance of the interface between race and religion’ and stated that ‘it would be competent to consider a claim of ‘double’ discrimination on the basis of religion and another ground specifically provided for in article 1’, which was not the case with the current petition.158 The petition according to the Committee was based on religion alone, and ‘Islam is not a religion practised solely by a particular group’.159 The communication was inadmissible.160 On its face, ‘descent’ is an open ground of discrimination, only partly unpacked by the Committee in relation to caste and analogous systems of inherited status.161 The essence of the Committee’s approach to caste groups is to call up ‘descent’ rather than ‘race’, although there have been ‘race’ inflections in, for example, Dalit interventions at the UN, and a slippage of categories in much historical and contemporary writing on caste.162 Besides race and history narratives, and the processes of self-​identification and self-​description they imply, the exogamous ascription or fixing of caste attributes onto populations recalls similar processes attaching to ‘race’, ‘colour’ or ‘ethnicity’ based on population characteristics or incorrigible ‘otherness’.163 In other words, caste and analogous forms of inherited status are treated as being on a par with the other descriptors in Article 1.164 GR 29 on descent-​based discrimination,165 encourages states to recognize this problem and address it. The general recommendation followed the Durban World Conference on Racism where the caste issue was talked out after vigorous diplomacy by India.166 India continues to contest the application of the Convention to matters of caste on grounds that ‘race’ is distinct from ‘caste’.167 The issue is an aspect of a larger question of determinations of group status, including claims by States to uniqueness168 in social arrangements. The Committee continues to grapple with caste and descent-​based discrimination in a variety of contexts.169 Committee attention has also 157 Ibid, para 6.2. 158 Ibid, para 6.3. 159 Ibid, para 6.3. 160 See also A.W.R.A.P. v Denmark, CERD/​C/​71/​D/​37/​2006 (2007)—​decided in line with  P.S.N. 161 Patrick Thornberry, ‘The Convention on the Elimination of Racial Discrimination, Indigenous Peoples and Caste/​Descent-​based Discrimination’ in J Castellino and N Walsh (eds), International Law and Indigenous Peoples (Leiden/​Boston: Martinus Nijhoff, 2005) 17–​52. 162 See the multiple references to the intersection of ‘race’ and ‘caste’ in S Bayly, Caste, Society and Politics in India (Cambridge: Cambridge University Press, 1999). 163 K Booth, ‘Three Tyrannies’ in T Dunne and N Wheeler (eds), Human Rights in Global Politics (Cambridge: Cambridge University Press, 1999) 31–​70. 164 See A Sicilianos, ‘L’Actualité et les potentialités de la Convention pour l’élimination de la discrimination raciale’ (2005) Revue Trimestrielle des Droits de L’Homme 64, 869–​921. 165 A/​57/​18, Chapter XI F. 166 The Durban Review Conference of 2009 did nothing to remedy this omission. 167 Nineteenth periodic report of India, CERD/​C/​IND/​19, 29 March 2006, paras 15–​17; A/​62/​18, Annex X—​ Comments by States parties on the Concluding Observations of the Committee. The Committee continues to maintain its viewpoint: A/​62/​18, para 166. 168 ‘Scheduled Castes and . . . Tribes are unique to Indian society and its historical process’: Fourteenth Report of India, CERD/​C/​299/​Add.3, para  7. 169 CERD treatment of the ground of ‘descent’ is discussed extensively in Thornberry, The International Convention, above n 1, ch 6.

The Committee on the Elimination of Racial Discrimination  329 been drawn to the broader issue of persons of Asian and African descent, following a thematic discussion in 2011.170 Paradoxically, the ostensible limitation on the CERD mandate as perceived by India and other States spurred the Committee to expound and defend its position.171 In contrast to the position with ‘descent’, where the human rights acquis is limited (but expanding), the Committee’s stance on non-​citizens reveals a contrasting situation where the text of ICERD is narrow while the canon of international human rights is more generous. Article 1.2. of the Convention provides that it ‘shall not apply to distinctions, exclusions, restrictions or preferences between citizens and non-​citizens’, while Article 1.3. states that nothing in the Convention is to be interpreted as affecting state legal provisions ‘concerning nationality, citizenship or naturalization’, provided that they ‘do not discriminate against a particular nationality’. In practice, CERD has endeavoured to transcend any such limitations.172 The Committee addresses discrimination against immigrants/​asylum-​seekers, and sundry non-​citizens and people in movement, including that arising from counter-​terrorism measures, urging states to respect fundamental rights when combating terrorism.173 In GR 11 (1993),174 CERD reminded States parties that Article 1(2) must not be interpreted to detract from rights and freedoms enunciated in other instruments. GR 30175 on discrimination against non-​citizens addresses issues such as hate speech and racial violence, access to citizenship, administration of justice, expulsion and deportation and economic, social and cultural rights. The recommendation replaces GR 11 while emphasizing its message that any limiting features of the Convention in Article 1 must not undermine human rights in general. The ‘people in movement’ scenario includes trafficked persons, especially women and girls. Trafficking has, in many cases, an intrinsic dimension of racial discrimination and is, in many cases, a thoroughly racialized, as well as gendered, phenomenon in relation to countries of origin as well as countries of passage and destination. Broad questions of ‘gender, race and discrimination’ are part of the regular discourse of the Committee. In GR 25 on gender-​related dimensions of racial discrimination,176 the Committee invited states to analyse the relation or intersectionality between race and gender by considering the form and manifestation of racial discrimination; the circumstances in which discrimination occurs; the consequences of such discrimination; and the availability of remedies and complaint mechanisms. Besides issues of

170 The discussion prompted the adoption of GR 34 in 2011 on racial discrimination against people of African descent, A/​66/​18, Annex IX. A current standard paragraph in concluding observations refers to the International Decade for People of African Descent (2015–​24), proclaimed by the General Assembly in resolution 68/​237. 171 See also, inter alia, draft Principles and Guidelines for the Effective Elimination of Discrimination Based on Work and Descent, Human Rights Council, May 2009: A/​HRC/​11/​CRP.3. 172 The provisions are not unambiguous. While distinctions, etc, ‘between citizens and non-​citizens’ may be protected, these are not equivalent to distinctions based on race and other grounds, which are clearly not protected. 173 Statement on racial discrimination and measures to combat terrorism, A/​57/​18, Chapter XI C. 174 A/​48/​18, Chapter VIII B. 175 A/​59/​18, Annex  VIII. 176 A/​55/​18, Annex V A.

330  Patrick Thornberry trafficking of women and girls, CERD has addressed the issue of women and HIV/​ AIDS, discrimination against Roma and Traveller women, transmission of nationality through the male line, customs and practices of certain groups, imprisonment rates for indigenous women, and problems of female domestic workers. The gender-​ race intersection bears out the complex motivations for oppressive action in real-​life situations. In order to engage the prohibitions in the Convention, racial discrimination need only be a significant element in the construction of oppressive practices; it need not be the ‘sole’ ground of action.177

(b)  Special measures The Convention provides that special measures should be taken for the advancement of groups and persons towards their equal enjoyment of human rights, provided the measures do not lead to the maintenance of separate rights for the different racial groups and they are not continued after the objectives for which they were taken have been achieved.178 The provisions, and limitations, on special measures reveal the aetiology of the Convention in struggles against segregation and apartheid. In the drafting of the Convention, a number of states expressed reservations concerning the inclusion of special measures, claiming, inter alia, that they would perpetuate separation from the wider community,179 and would open the door to all sorts of ‘legal manoeuvring to justify various kinds of racial discrimination’.180 The Committee summarized its position on special measures in GR 32, adopted in 2009.181 The recommendation addresses a range of questions, including how to read the relationship between special measures and equality, the conditions for the adoption of the measures and limitations thereon, and when special measures may be terminated. The Convention provisions, including those on special measures, have been interpreted in Committee practice to take greater account of the legitimate interests and rights of various categories of right-​holder. An illustrative reflection of this relationship emerges from discussion of the report of New Zealand in 2007.182 Under ‘special measures’, the report included information on, inter alia, Maori fisheries, the Foreshore and Seabed Act, the Maori Land Act, Maori and Pasifika education, Maori language, etc.183 The inclusion of these instruments provoked a question by

177 Concluding observations on Austria, A/​57/​18, para 28, where the Austrian legal prohibition on distinctions on the ‘sole’ grounds of race, colour, etc, were regarded by the Committee as ‘representing a narrower prohibition of discrimination than is provided in the Convention’. 178 Articles 1(4) and 2(2) of ICERD. 179 Chile, E/​CN.4/​Sub.2/​SR.416, para  13. 180 Ivory Coast, A/​C.3/​SR.1306, para 23. 181 A/​64/​18, Annex  VIII. 182 Fifteenth, sixteenth and seventeenth reports of New Zealand, submitted as one document, CERD/​C/​NZL/​ 17. 183 CERD/​C/​NZL/​17, paras 51–​172.

The Committee on the Elimination of Racial Discrimination  331 the country rapporteur in the ‘list of issues’ as to ‘why the State party considers that historical treaty settlements constitute special measures for the adequate development and protection of Maori’.184 While the State representative made it clear that treaty settlements were not considered temporary measures by the State party,185 the Committee’s concluding observations reiterated its concern about the confusion of categories, drawing attention ‘to the distinction to be drawn between special and temporary measures for the advancement of ethnic groups on the one hand and permanent rights of indigenous peoples on the other hand’.186 The issue is generalized in General Recommendation 32, which states that: Special measures should not be confused with specific rights pertaining to certain categories of person or community, such as, for example the rights of persons belonging to minorities . . . and the rights of indigenous peoples, including rights to lands traditionally occupied by them and rights of women to non-​identical treatment with men . . . States parties should carefully observe distinctions between special measures and permanent human rights in their law and practice.187

Entitlement to the rights of minorities or indigenous peoples obviously does not ‘bar’ the application from special measures for these groups; hence the further statement in para 12 of the recommendation that the ‘distinction between special measures and permanent rights implies that those entitled to permanent rights may also enjoy the benefits of special measures’.188 The principle that special measures should not simply be a matter of imposition on groups is also adverted to.189 Guyana responded in 2008 to concluding observations of CERD by describing the Amerindian Act of 2006—​the mainstay of Guyana’s legislative framework for indigenous peoples—​as ‘a special measure discriminating in favour of Amerindians and . . . a special measure within Article 1, para 4 of the Convention’.190 Further, while the Act was justifiable to protect Amerindians, ‘it cannot give Amerindians rights to the detriment of others’.191 The formulation of the argument, besides subsuming the ensemble of indigenous rights under special measures, suggests that, from some perspectives, ‘special measures’ may be viewed as uncomfortably close to ‘rights to the detriment of others’.

184 Question 3 on the list of issues. 185 Ibid. 186 CERD/​C/​NZL/​CO/​17, para  15. 187 General Recommendation 32, para 15. 188 It may be observed in passing that the quoted sentence distinguishes between ‘entitlement’ to permanent rights and the ‘benefits’ of special measures, suggesting that special measures are to be understood as functioning in the domain of State obligations rather than personal or community rights (entitlements). References to ‘entitlement’ to special measures in the preliminary draft of the recommendation—​CERD/​C/​75/​Misc.7/​CRP.1—​do not appear in the adopted version. 189 GR 32, para 18. 190 /​C/​GUY/​CO/​14/​Add.1, para  2. 191 Ibid, para 70.

332  Patrick Thornberry

(c)  Segregation and apartheid The ‘evil twins’ in Article 3—​segregation and apartheid—​were not debated to the same extent throughout the travaux: the system of apartheid—​‘separateness’—​claimed most of the attention. In GR 19, the Committee sought to underline the continuing relevance of Article 3 while shifting the emphasis of the article away from a particular political system, particularly in light of the syntax of the article that places ‘segregation’ before ‘apartheid’. Accordingly, paragraph 3 shifts the emphasis from state-​induced segregation in the apartheid mode towards indirect and privately produced manifestations: The Committee observes that while conditions of complete or partial racial segregation may in some countries have been created by governmental policies, a condition of partial segregation may also arise as an unintended by-​product of the actions of private persons. In many cities residential patterns are influenced by group differences in income, which are sometimes combined with differences of race, colour, descent and national or ethnic origin, so that inhabitants can be stigmatised and individuals suffer a form of discrimination in which racial grounds are mixed with other grounds.

The concluding paragraph reinforces the point by affirming that ‘a condition of racial segregation can also arise without any initiative or direct involvement by the public authorities’. Commending the adoption of the recommendation, Committee members commented on the importance of States parties moving away from an exclusive concern with apartheid in their reporting on article 3, bearing in mind the evidence of practices of segregation or analogous forms of discrimination in many countries.192 Perhaps the most consistently applied body of practice regarding segregation emerges, not from reflection on apartheid as a heightened form of segregation, but from the Committee’s response to questions regarding the Roma. In GR 27,193 segregation is referred to particularly with regard to housing and education. The recommendation adds to the understanding of segregation in appearing to imply that it is not the mere fact of separation that constitutes the segregation, but the stigma associated with deliberate, other-​directed placements, dissociated from choices made by the targeted group. Paragraph 18 of GR 27 refers to preventing and avoiding as much as possible the segregation of Roma students, while keeping open the possibility for bilingual and mother-​tongue tuition; to this end, to endeavour to raise the quality of education in all schools and the level of achievement in schools by the minority community, to recruit school personnel from among members of Roma communities and to promote intercultural education. 192 CERD/​C/​SR.1125, paras 92–​7. Segregation and apartheid are discussed extensively in Thornberry, The International Convention, above n 1, ch. 10, which includes a discussion of the contemporary scope and application of the Article 3 phrase ‘all practices of this nature’. 193 A/​55/​18, annex  V. C.

The Committee on the Elimination of Racial Discrimination  333 Concern over segregation of Roma pupils has generated a consistent stream of recommendations, reaching a low-​water mark with regard to the placement of Roma pupils in ‘special schools’ or ‘special classes’ for children with mental disabilities. In the case of the Czech Republic, following an expression of the Committee’s deep concern regarding educational segregation, recommendations included, in the context of putting an end to such practices, a ‘review of the methodological tools used to determine the cases in which children are to be enrolled in special schools’.194 Methodology and criteria for placements were also to the fore in conclusions on the Russian Federation that recommended careful review of such, coupled with a reminder of the importance of integration of ethnic minority children into the general education system.195 Some reports omit any reference to Article 3 in their reports.196 In some cases the omission is dictated by the structure of the report when, for example, it concentrates on responding to earlier recommendations of CERD; in others, the article is implicitly treated as tangential to the situation in the State party.

(d)  Article 4: hate speech Article 4 takes a strict line in freedom of expression requiring states to ‘declare an offence punishable by law’, forms of incitement, as well as ‘all dissemination of ideas based on racial superiority or hatred’, while also demanding that States parties ‘declare illegal and prohibit [racist] organizations’. A number of states maintain reservations to Article 4, despite the so-​called ‘due regard’ clause.197 Many members of the Committee have regarded Article 4 as the most important article in the Convention. The rationale may be understood by reflecting on phenomena ranging from the discourses of dehumanization that characterize genocidal processes198 to the insidious threat of the ‘normalization’ or ‘banalization’ of racist discourse. Article 4 was, until recently, among the least ‘developed’ by the Committee. Adopted in 1993, GR 15 did not carry forward the understanding of Article 4 to any great extent, but, following a deconstruction of the basic requirements of 4(a) and (b), reiterated its ‘mandatory character’. The Committee also asserted that the prohibition of the dissemination of ideas of racial superiority or hatred was compatible with the right to freedom of opinion and expression. The requirement to declare as an offence punishable by law ‘all dissemination of ideas based on racial superiority or hatred’, was given an extensive airing in TBB-​Turkish

194 CERD/​C/​CZE/​CO/​7, para  17. 195 CERD/​C/​RUS/​CO/​19, para 27. Compare Estonia, CERD/​C/​EST/​CO/​8-​9, para  17. 196 Examples include the Report of Nicaragua, CERD/​C/​NIC/​14 (2007); and the Netherlands, CERD/​C/​NLD/​ 18. 197 Obligations in Article 4 are to be exercised ‘with due regard to the principles embodied in the Universal Declaration of Human Rights’. 198 CERD ‘indicators’ of patterns of systematic and massive racial discrimination that may lead to violent conflict and genocide, include ‘9. Grave statements by political leaders/​prominent people that express support for affirmation of superiority of a race or an ethnic group, dehumanise and demonise minorities’: A/​60/​18, para 20.

334  Patrick Thornberry Union in Berlin/​Brandenburg v Germany, where Thilo Sarrazin, a member of the Board of Directors of the German Central Bank, recorded his thoughts in an interview on, inter alia, the unproductive lower classes which would have to disappear over time to create a city of the elite. More generally, he identified a ‘Turkish’ problem, whereby Turkish groups and Arabs sloped dramatically in terms of success, inhibited therefrom by a ‘collective mentality that is aggressive and ancestral’. CERD found that the statements by Sarrazin amounted to dissemination of ideas based on racial superiority or hatred, and contained elements of incitement to racial discrimination. The decision was the subject of a vigorous dissent by CERD member Vázquez who suggested that Sarrazin had not asserted the inferiority of Turkish culture or Turks as a group but had made an argument about the impact of economic policies on their incentives to integrate. The dissent also reflected on the understanding of the crime of incitement, and urged caution in resorting to criminal prosecution. The discussions in TBB-​Turkish Union filtered into GR 35, adopted in 2013, on combating racist hate speech.199 GR 35 expands its hate speech ‘protectorate’ to include ‘persons belonging to certain ethnic groups who profess or practice a religion different from the majority’, who suffer from expressions of Islamophobia and anti-​Semitism and ‘similar expressions of hatred against ethno-​religious groups’.200 The recommendation proceeds to unpack the principal elements of Article 4, adding the rider that ‘criminalization of forms of racist expression should be reserved for serious cases’, while less serious cases should be addressed by other means.201 This scaling down of the overweening importance of criminal law in combating hate speech is presented in pari passu with a tight definition of the crime of incitement,202 and a list of contextual factors for the qualification of dissemination and incitement as offences punishable by law, in order to make the occasions for criminal legislation more precise,203 and a re-​evocation of the ‘due regard’ principle204 to accord freedom of expression a more prominent place. The recommendation stresses the importance of freedom of speech in combating racist hate speech,205 and allocates significant space to Article 7 of the Convention,206 which mandates ‘immediate and effective measures’ in the fields of ‘teaching, education, culture and information’ to combat prejudices leading to discrimination and promote ‘understanding, tolerance and friendship’ among nations and racial or ethnic groups. The concept of Article 4 as the nucleus of the Convention around which all other particles of the Convention circulate has somewhat receded, and the article has been further

199 A/​69/​18, Annex  VIII. 200 GR 35, para 6. 201 Ibid, para 12. 202 Ibid, para 16. 203 Ibid, para 15. 204 Article 4 requires that measures to eliminate incitement and discrimination must be taken with ‘due regard’ to the principles of the UDHR an Article 5 of the Convention. In Jewish Community of Oslo v Norway, the Committee had interpreted ‘due regard’ to apply to human rights and freedoms as a whole, without recognizing the special pertinence of freedom of expression in cases of suppression of speech. GR 35 allocates a more prominent role to freedom of expression in measuring the legitimacy of laws prohibiting incitement and dissemination. 205 Paras 24 to 29 draw out the implication of freedom of expression as a means of countering hate speech. 206 Paras  30–​44.

The Committee on the Elimination of Racial Discrimination  335 integrated into the conceptual scheme of the Convention as a whole and wider contemporary currents on freedom of speech.

9.4  Overview and conclusions Procedural development has proceeded at a steady pace, if less expansively than normative practice. Whereas NGOs and others may urge the Committee to act like a Star Chamber, the concept of a constructive dialogue implies, de minimis, that the State party emerges from the process with a well-​grounded ‘corrective’ to its positions, together with guidance on how to move the Convention’s standards into practice. If the guidance function involves conceptual ruminations on the part of Committee members in addition to yes/​no interrogatives, the prospects of implementation are unlikely to be damaged but might well be improved. It seems clear to the present author that states are not always familiar with what the Convention requires, so that engagement with the Committee opens up possibilities of alternative readings of obligations. Enhancing the roles of NGOs and national human rights institutions in reporting and analogous processes is desirable if it leads to a better process of truth-​finding. On early warning, incorporating the procedure into the formal rules of the Committee—​ possibly involving further development of admissibility procedures for requests to activate it—​and clarification of the relationship between this procedure and those under Article 14 and follow-​up, are worth further examination. With newer developments, such as the follow-​up procedures to concluding observations and communications, it should be useful to produce further guidelines for both follow-​up procedures that refer to ways in which the Committee should interact with stakeholders and offer sharper criteria for determining when recommendations are properly implemented. As regards liaison with other human rights bodies, critical reflection on the treaty body system has regularly suggested greater co-​ordination among the component parts. This serves a double function: institutional coherence improving the participation of stakeholders,207 and the promotion of a ‘consistent and authoritative jurisprudence’.208 Whether the networking of the Committee is properly effective in normative terms is an open question. Treaty bodies travel with their specific texts as principal vehicles. However, the texts are part of a network or acquis of human rights instruments, which should ideally inform interpretations and practice. The awareness of normative developments at the UN, regional, or national levels will be partly a function of the experience and reading habits of individual members. For the rest, members are regularly made aware of the conclusions, etc., of other treaty bodies (UN and regional) through country presentations prepared by the Secretariat, and the (usually) more extensive files prepared for country rapporteurs. Formal co-​operation with other treaty bodies 207 ‘Limited coordination and collaboration among treaty bodies, and different approaches . . . [to] increase duplication and impede interaction with stakeholders, who find the system obscure’: Concept Paper, above n 13, para 17. 208 Concept Paper, above n 13, para 27.

336  Patrick Thornberry through joint General Recommendations/​Comments has been occasionally suggested but not delivered in the case of CERD.209 As regards the UPR, it is important that the Committee continues to demonstrate a constructively critical and independent approach undiluted by ‘softer’ recommendations emerging from the UPR. The reasons for the under-​use of the Article 14 procedure have not been fully analysed by CERD but may include limited understanding of the Convention and lack of awareness of the procedure, the limited development of civil society in many States parties, the availability of alternative procedures, or lack of confidence in the potential of CERD to act as a ‘quasi-​judicial’ body. The possibility that allegations of racial discrimination are especially sensitive compared to (some other) human rights violations should not be discounted. A few states continue to deny ethnic diversity and/​or the existence in their territory of racially discriminatory practices. It may be difficult, particularly for states formerly prominent in anti-​colonial and anti-​apartheid movements, to be criticized for practices of racial discrimination. It is not clear whether CERD does better work through the narrowly defined, individual-​centred Article 14 communications procedure or through the more open Article 9 mechanism, which is not fixated on violations and endeavours to carry forward the transformation of national practice through ongoing critical conversations. It is arguable that the ‘judicialization’ of CERD procedures has not lent significant impetus to achieving the ambitious goals of the Convention—​a thought that also has ramifications for other treaty bodies. While the reform of treaty body procedures appears to have more or less equal implications for CERD and other system participants, the possibility of differential effects should not be discounted. The Committee has gone along with modest functional approaches to institutional reform based on the current ‘strengthening’ process, but did not offer a particularly warm welcome to the ‘big’ reform represented by the USTB, motivated in part by considerations of possible downgrading of racial discrimination as a concern. Racial and ethnic conflict are persistent features of our age, while finding acceptable modalities to address them in a constructive manner remains an enterprise fraught with difficulty. The minimal duty of the Committee is to keep alive the flame of principle by illuminating the challenges of coexistence of communities, the dangers of ethnic conflict, and the potential for human growth and enhancement of dignity when respect for the principle of non-​discrimination flourishes. If implementation strategies shift between the poles of integration with the mass and lofty independence, so also with the norms. Treaty bodies are systemically linked but also seek to maintain their authenticity of approach under distinct mandates. This tension between text and context, between thinking inside and outside the box, has generated varying outcomes. The interpretive paradigm has varied in the life of the Committee from a stifling literalism to a broader teleological approach though moves back to literalism cannot be ruled out. CERD’s vision of equality in the enjoyment of human rights is pre-​eminently that of equality in fact and reality. From within the 209 Dublin NGO Response, above n 110, para 22. The present author has suggested Committees jointly working on a recommendation/​comment on the operations of business corporations in indigenous territories.

The Committee on the Elimination of Racial Discrimination  337 housing of ICERD, the consolidation of practice in GR 32 draws upon the experience of a range of instruments and bodies in differentiating between special measures and permanent rights, in the focus on consultations with communities, and in intimating the range of beneficiaries of special measures. The recommendation draws upon other dynamic rights vocabularies, global and regional, which hardly existed when ICERD came into force. In other cases, the collapse of legal and political vocabularies has been the catalyst for change. Concepts rooted in post-​war struggles against racial segregation and apartheid and injected into ICERD have been re-​vamped to address present conditions—​CERD’s reading of Article 3 is a case in point, though the past continues to exercise its nostalgic magic. In many respects, the Convention appears as a porous instrument, open to outside influences. The rights protected under Article 5 are not exhaustively listed, are expressed for the most part in short form, are not elaborated, and do not include restrictive clauses. They are approximations of the rights in question, and apt to draw in concepts and influences from sister instruments. Hence the Committee has drawn upon parallel vocabularies to give meaning to the human rights listed or implied by Article 5. The Committee’s recognition of collective rights is a case in point, a recognition drawn from a combination of intra-​Convention concepts, treaties and jurisprudence from global and regional instruments and bodies, shaping its views on obligations, education, and reparatory concepts, as well as rights stricto sensu. In yet other cases, the Committee proved relatively impervious to outside influence, psychologically dominated by an overbearing text. For article 4, despite the currents valorizing freedom of speech (a value also present in the Convention) CERD held fast to its stern, punitive views on racist hate speech and racist organizations. The tough Article 4 model of combating hate speech proved attractive to those who wished to extend the reach of the Convention to address defamation or vilification of religions or more consistently extend ICERD’s hate speech provisions to religious groups.210 The re-​visitation of hate speech issues by General Recommendation 35 was long overdue; it remains to be seen whether this complex and nuanced recommendation will embed itself fully in the culture of the Committee. The Committee has perhaps exercised greatest influence in persuading States parties of the global dimensions of racial discrimination even as it impacts differently in different societies, and in broadening out and humanizing the abstract ‘grounds’ of discrimination in order to protect real communities. Underpinning its approach is the demand for a truthful account of diversity through statistical or other means, and the interrogation of claims of homogeneity or nation-​building that pay insufficient attention to human rights and the complexities of group identity. The Committee has ‘unpacked’ some ‘forms’ of discrimination implied in the title of ICERD, if not ‘all forms’. The expansion of perceived loci of discrimination from colonial contexts and pariah states to

210 Thornberry, Forms of Hate Speech, above n 1, passim. See also the website of the Ad Hoc Committee on the Elaboration of Complementary Standards.

338  Patrick Thornberry the world at large, from the foreign to the domestic, increases the complexity of the issues and renders more challenging the application of simple prescriptions. Surfacing occasionally behind the façade of recommendations and decisions are glimpses of what the present author has described elsewhere as the ‘vision’ of the Convention,211 in particular as to how the discourse of equality is related to the discourse of diversity. The importation of influences, notably from identity politics, has blunted the temptation to treat the ‘universalist’ text of the Convention as an instrument of assimilation. If recent movement in international law has been to elaborate the diversity pole, it is in the nature of the system that both ‘poles’ are extant, since human rights norms are in theory simultaneously valid. Even if we argue that the equality principle is peremptory and hierarchically superior to ‘challengers’, this does not conclude anything about its meaning, which is the object of continual exploration. The terms of the argument are broad; converting them into practical reasoning introduces further contingencies and complexities and we are entitled to our scepticism towards strident assertions that the vision of the Convention is incorrigibly X or incorrigibly Y. The development of the work of CERD marries an increase in the specification of remedies for racial discrimination with an evolving approach to what the problem is and what to do about it. Further, while it is important to retain the universal force of anti-​discrimination norms, their application to real situations requires sensitive attention to local conditions. A defensible archive of human rights work synthesizes the Janus-​faced requirements of principle and response. While treaty bodies share many commonalities, they develop distinctive profiles on the basis of their governing texts, characteristic concerns, histories, and use of precedents that may be described as institutional cultures, immersed in a wider institutional matrix. The general approach is not that of soaring metaphysical ambition but of patient and ongoing analysis—​less of the pontiff, more of the journeyman.212 For CERD, the mandate requires that racial discrimination must be fought, with the attendant hope that victims are uplifted, restored to dignity and healed, and harm prevented. To what extent a human rights body has fought, uplifted, restored to dignity, healed, and prevented harm, or, more modestly, whether it has ‘made a difference’, are questions which should be asked, not only of CERD, but of all under-​ labourers in the field of human rights.

211 Thornberry, Confronting Racial Discrimination, above n 1, passim. 212 A Ayer, ‘The Claims of Philosophy’ (1947) in Ted Honderich (ed), The Meaning of Life and Other Essays (London: Weidenfeld and Nicolson, 1990), 1–​3.

10 The Human Rights Committee Ludovic Hennebel1

The United Nations Human Rights Committee2 is one of the nine3 human rights treaty bodies of the United Nations (UN). It is within the complex architecture of the United Nations human rights machinery, composed of various instruments and bodies, that the Human Rights Committee has been operating for more than thirty years. That body is in charge of the supervision of a major human rights treaty of the UN machinery, that is, the International Covenant on Civil and Political Rights (ICCPR),4 which was adopted in 1966, came into force in 1976, and has been ratified by 173 states.5 The Human Rights Committee enjoys a peculiar position in the international human-​rights architecture. It has been labelled ‘one of the most active and innovative’6 bodies among the UN institutions involved in human rights monitoring, considering that it is in charge of one of the two covenants which, together with the Universal Declaration, are sometimes presented as the ‘International Bill of Rights’ and covers the broadest subject-​jurisdiction matter. At the same time, the Committee and its work

1 The author thanks Gerald Neuman, Jean Dhommeaux, and Oscar Solera for their comments on an early draft, and David Hughes and Caroline Teuma for valuable research assistance. Special thanks are due to Hélène Tigroudja for her advice and support. Opinions expressed in the chapter are those of the author. The last substantial update of this chapter was made in 2017. Another final update was then made in November 2019 in order to incorporate certain elements of case law, data relating to States parties, as well as other procedural elements, in particular those related to the entry into force of the new 2019 Rules of Procedure. 2 The literature on the Human Rights Committee is considerable. See for example: Y Tyagi, The UN Human Rights Committee: Practice and Procedure (Cambridge: Cambridge University Press, 2011); D McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (Oxford:  Clarendon Press, 1994); T Buergenthal, ‘The U.N. Human Rights Committee’ (2001) 5 Max Plank Yearbook of United Nations Law; T Opsahl, ‘The Human Rights Committee’ in P Alston (ed), The United Nations and Human Rights: A Critical Appraisal, (Oxford: Clarendon Press, 1992); H Steiner, ‘Individual Claims in a World of Massive Violations: What Role for the Human Rights Committee?’ in P Alston and J Crawford (ed), The Future of UN Human Rights Treaty Monitoring (Cambridge: Cambridge University Press, 2000). 3 In addition to the nine treaty-​bodies monitoring the implementation of the nine core human-​rights treaties of the UN, the tenth treaty body, the Subcommittee on Prevention of Torture, monitors places of detention in the States parties to the Optional Protocol to the Convention against torture. 4 For further reading on the ICCPR, see for example: M Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, Kehl: N.P. Engel Publisher, 2005). See also the third edition: W. Schabas, Nowak’s CCPR Commentary (Kehl: N.P. Engel Publisher, 2019). Below, references are made to the 2nd edition ; on the case law of the Human Rights Committee and the interpretation of the Covenant: J Moller and A de Zayas, United Nations Human Rights Committee Case Law 1977–​2008: A Handbook (Kehl: N.P. Engel Publisher, 2009); S Joseph, J Schultz, and M Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (2nd edn, New York: Oxford University Press, 2005); A Conte and R Burchill, Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee (2nd edn, Ashgate, 2009). In French: L Hennebel and H Tigroudja, Traité de droit international des droits de l’homme (2nd edn, Paris: Pedone, 2018). 5 As of September 2019. 6 Buergenthal, above n 2, 341.

340  Ludovic Hennebel remain overlooked and quite obscure even for most human rights lawyers and certainly for a lay audience. This chapter provides a critical account of the Human Rights Committee’s mechanisms and work. Section 10.1 offers a general overview of the Committee, including its background, membership, structure and operation. Section 10.2 will provide a descriptive and critical account of the Committee’s functions, focusing on the mechanisms that can be used by the Human Rights Committee to perform its work, including state reporting and the individual communication mechanism under the Optional Protocol. Section 10.3 will address the legal regime of the ICCPR, as framed by the Committee, while Section 10.4 reflects on some substantial issues dealt with by the Human Rights Committee and deals with interpretation of the ICCPR by the Human Rights Committee.

10.1  General Overview of the Human Rights Committee The Human Rights Committee was created by the International Covenant on Civil and Political Rights itself (article 28), which is therefore both a substantive and an institutional instrument. The nature of the Committee remains complex7 and has led to some difficult questions.8 The name ‘Human Rights Committee’ is not totally accurate and may be a source of confusion, giving the impression that it is the only committee that deals with human rights at the UN, and not just one of the nine treaty-​bodies. It appears that calling it the ‘Committee on Civil and Political Rights’, echoing the title of the Covenant, would probably have been preferable.9

(a) Background Following the adoption of the Universal Declaration of Human Rights in 1948, the arduous process of drafting an international treaty detailing substantive rights continued. Initially, the intention was to produce a single universal human-​rights treaty. However, thorny deliberations10 showed that such an effort would likely be in vain due to irreconcilable ideological disputes between East and West during the Cold War.11 7 During the drafting process of the Covenant, despite the strong opposition of some states—​in particular the Soviet-​led group—​and until the creation of a Committee, the drafters discussed several recommendations for the establishment of either an international court or a committee of human rights. The main focus of the discussion dealt with the question as to whether individuals and groups of individuals would be granted a right of petition to such an international body. See Tyagi, above n 2, 59. 8 See: G Ahanhanzo, ‘Un Zoulou au Palais Wilson’ in N Ando (ed), Towards Implementing Universal Human Rights (Leiden, Boston: Martinus Nijhoff Publishers, 2004) at 61. 9 Opsahl, above n 2, 370. Alternative names (such as Human Rights Tribunal or Human Rights Forum) were suggested during the travaux préparatoires. See: Bossuyt, above n 8, 502. 10 For further details on the historical background of the ICCPR and of the OP, and the discussions regarding the creation of the Committee, see inter alia: M Bossuyt, Guide to the ‘Travaux Préparatoires’ of the International Covenant on Civil and Political Rights (Dordrecht: Nijhoff Publishing, 1986). 11 Within the drafting Committee different forms for an International Bill of Rights were presented, for example refer to: UN Human Rights Yearbook, 1947, p 484; UN Doc E/​CN.4/​56; E/​CN.4/​AC.3/​SR.1-​9 (1947). Participants

The Human Rights Committee  341 Much of the debate pivoted around a long-​standing division existing between the so-​ called—​and controversial—​‘generations’ of human rights, with the first generation of rights (civil and political), favoured by the West, and the second generation rights (economic, social, and cultural), favoured by the Soviet block. To sum it up succinctly, some states favoured a treaty limited to civil and political rights enforceable before the courts and implemented by an international court of justice for human rights; others, however, underlined the interdependence and equality of civil, political, economic, social, and cultural rights and wanted these rights to be protected in a single treaty and implemented exclusively by states with no international supervision, which was seen as an interference in the internal affairs of the states. The highly normative aspects of this debate were soon overtaken by more pragmatic concerns as the drafters saw the issue as being unavoidably linked with the question of implementation. Instead of pursuing the idea of drafting one universal human rights treaty, in 1951 the General Assembly called for the draft of two Covenants, one on civil and political rights, and the other on economic, social and cultural rights.12 The impact of such a decision cannot be underestimated: human rights, which were supposed to be indivisible,13 interdependent, and interrelated, were divided into two categories protected by two independent UN treaties, each with a different implementation regime. The Human Rights Commission submitted the two drafts in 1954. The third Committee of the General Assembly revised them before they were adopted in 1966 by the General Assembly.14 However, it was another decade before they came into force.15 The ICCPR was adopted by 106 votes. The Optional Protocol, organizing the individual communication mechanism, was adopted by sixty-​six votes to two votes against and thirty-​eight abstentions.16 The ICCPR was completed by another controversial Optional Protocol aiming at the abolition of the death penalty, which was adopted in 1989 by fifty-​nine states against twenty-​six with forty-​eight abstentions. Although the final text of the Covenant is the fruit of political compromise, it did provide for the establishment of an expert body charged with confronting many of the normative ambiguities of the treaty and, through its interpretations of the Covenant’s articles, serve as its guardian.17 The long political and ideological battle that became strongly divided on the question as to whether the agreed Covenant should take the form of a single document containing both civil and political as well as economic, social and cultural rights or whether the two sets of rights should be set in different documents. For example, refer to: UN Doc A/​2929, 10 GAOR (1955), Ch 2, §§ 4–​12. See McGoldrick, above n 2, 4. 12 GA Res 543 (VI). 13 During the debate before the Third Committee of the General Assembly in 1950, Argentina implored the Committee ‘not to attempt to dived the indivisible’. See D Whelan, Indivisible Human Rights: A History (University of Pennsylvania Press, 2010). 14 GA Res 2200/​A (XXI). 15 The International Covenant on Civil and Political Rights, G.A. Res 2200A (XXI), UN GAOR, 21st Session, Supp No 16, at 52, UN Doc A/​6316 (1966), 999 UNTS 171; The International Covenant on Economic, Social and Cultural Rights, G.A. Res 2200A (XXI), UN GAOR, 21st Session, Supp No 16, at 49, UN Doc A/​6316 (1966), 993 UNTS 3. 16 The abstentions regarding the Optional Protocol included all the socialist states, India, Saudi Arabia, Senegal, Tanzania, Spain, Greece, Japan. 17 Although Article 28 of the ICCPR does not specifically mandate the Committee to monitor the implementation of the Covenant, the Committee has developed an unchallenged practice of assuming the legality of

342  Ludovic Hennebel characterized the adoption of the ICCPR, the Optional Protocol, and the creation of the Committee, necessarily impacted on both the substantial and procedural protection of human rights provided by the treaty. One of the significant aspects that consolidates the legitimacy of the Committee is the high number of ratifications (173 states) of the ICCPR. The Committee can be considered nowadays as a solid quasi-​universal reference in terms of human rights institutions, especially in comparison with some less ratified international human rights instruments.18 Moreover, the Committee succeeded in manoeuvring through the tense years of the Cold War, avoided becoming a Cold War battleground, and emerged with an image of neutrality.

(b) Membership Part IV of the Covenant outlines the basic constitution of the Committee. It is composed of eighteen members,19 who are ‘nationals of the States Parties to the present Covenant [and] who shall be persons of high moral character and recognised competence in the field of human rights, consideration begin given to the usefulness of the participation of some persons having legal experience’.20 Each member has a four-​year term and may be re-​elected to serve additional terms.21 The States parties to the ICCPR elect members. To be elected, a State party must first nominate the candidate, and then the UN Secretary-​General circulates the list of all the nominees to all States parties that proceed to the election by secret ballot and absolute majority.22 The election is a purely diplomatic and non-​transparent process, with no proper assessment of the skills and expertise of the candidates. Moreover, there is no mechanism to dispute an election. Due to the multidimensional functions of the Committee—​monitoring states’ reports and assessing individual communications—​the membership of the Committee is critical and requires highly qualified individuals. According to Tyagi ‘. . . there is an unwritten expectation that every member of the [Committee] must have deep devotion to the cause of human rights; that he or she should possess the sagacity of a judge, the skill of a diplomat, and the practical wisdom of a worldly individual; and that he or she should be capable of striking a balance between firmness and flexibility, uniformity and their decisions as pertains to the prescribed functions under the Covenant and Optional Protocol. For further discussion refer to: UN GAOR, Hum Rts Comm, 70th Session, 1878 meeting, §§ 11–​21, UN Doc CCPR/​C/​ SR.1878 (2000). 18 Such as the International Convention for the Protection of all Persons from Enforced Disappearance (sixty-​ two States parties); the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (fifty-​five States parties). However, these treaties are more recent, and considering the date of their adoption, the number of States Parties is appreciable. 19 During the travaux préparatoires, discussions related to the number of members of the Committee took place. The original provision of seven members was amended to nine members, before the final provision of 18 members was adopted. See: Bossuyt, above n 8, 502. 20 ICCPR, Article 28(2). 21 ICCPR, Article 29 and Article 32. 22 ICCPR, Article 29, 30.

The Human Rights Committee  343 diversity, and legal principles and pragmatism’.23 However, the Covenant is vague on the skills and qualifications of the members giving a large margin of discretion to the States parties to elect their candidates. Despite the fact that legal expertise is not formally required,24 in practice, committee members have had a variety of legal, academic, and professional backgrounds. As such, since the members of the Committee are unpaid, they are all employed elsewhere with the majority coming from an esteemed legal or academic background and carrying with them established reputations in the field of human rights. The majority either serve within their nation’s judiciary, its legal profession, or come from within the ranks of academia. Moreover, several members have been, at the same time or prior to their election as member of the Committee, members of the European Court of Human Rights, the former European Commission of Human Rights, the Inter-​American Commission or the Inter-​American Court of Human Rights, or have exercised other UN human rights functions. In some ways, the Human Rights Committee appears to be an antechamber of international judicial functions.25 States parties have nominated and elected highly qualified experts, but most of the states have been influenced in their choice—​both for the nomination and the election—​by other elements alien to qualification, such as political affiliation with the government. Opsahl, a former member of the Committee, has severely criticized the election procedure by claiming that ‘the qualities of the candidate which are most important from the Committee’s viewpoint, such as competence, energy, ability to cooperate, negotiation skills and propensity to attend meetings, do not play an important role’26 in the election process. Despite the high level of expertise required to perform the challenging functions of the Committee, political considerations appear to supersede the individual qualifications and expertise.27 By extension, this raises questions regarding the independence of the members. According to Article 28(3) of the Covenant, members perform in their ‘personal capacity’ and not as representatives of a State party.28 Moreover, according to Article 38 of the ICCPR, they have to make a solemn declaration before taking up duties that they ‘will perform [their] functions impartially and conscientiously’. Inevitably, however, doubts have occasionally been raised about exactly how independent some experts are. It is not unique to the Human Rights Committee that some 23 Tyagi, above n 2, 75. 24 ICCPR, Article 28(2). Under the draft, the members were supposed to have ‘judicial or legal experience’. It was amended to avoid the false impression that the Committee was a judicial body and to allow membership to a wide range of persons. In 2016, all the members had a legal background and a large majority were academics. Considering the evolution of the role of the Committee, it appears that the legal expertise of the members is indeed of paramount importance nowadays, especially inasmuch as the Committee interprets the Covenant and assesses allegations of violations. 25 For instance, former members of the Committee became judges at the European Court of Human Rights (for example I Motoc (Romania), H Keller (Switzerland)), at the Inter-​American Court of Human Rights (eg C Médina Quiroga (Chile)), at the ICTY (eg F Pocar (Italy)), at the International Court of Justice (eg T Buergenthal (USA), R Higgins (UK)). 26 Opsahl, above n 2, 374. 27 Nowak, above n 4, 673. See also Tyagi considers that ‘. . . this body has always been made up of persons of uneven qualifications and varying degrees of commitments’. Tyagi, above n 2, 75. 28 ICCPR, Article 28(3).

344  Ludovic Hennebel experts seem to have been in closer contact with the authorities of their own states, and that some have even appeared to act directly under instructions; others have at the same time as their Committee membership been serving their Governments in an official capacity.29 This practice appears to have been considerably reduced.30 This practice is regrettable and, considering the nature and functions of the Committee, states should refrain from nominating government officials and civil servants. On a more positive note, even if some formal ties exist between members and their states, the Committee as a whole has shown independence over the years in its work and tasks, which is crucial for its credibility. To ensure a better independence of the members, it must be observed that according to the Rules of Procedure (Rules 108(1) and 74(2)), they cannot participate in the consideration of a communication and in the review of a report targeting the State party by which he or she has been elected.31 The composition of the UN treaty-​bodies has been overall criticised for gender unbalance, uneven geographic representation, in addition to the frequent affiliation of members to the executive branch of their state.32 These critiques are still valid for the Human Rights Committee. Indeed, the past composition of the Committee revealed gender unbalance,33 with some improvements over the years. Rules compelling states to take the gender factor into account when they nominate their candidates could contribute to refining the composition of the Committee in that respect.34 Overall, the Committee’s record should be seen in the context of state practice regarding gender representation in the United Nations human rights treaty-​bodies, which has been disappointing. The Committees (with the exception of the Committee of the Rights of the Child and the Committee on the Elimination of Discrimination against Women) have been composed of a large percentage of male members until recently. This affects the legitimacy, authority and credibility of the UN human rights treaty-​bodies machinery, especially given the range of issues that the Human Rights Committee deals with that have an explicit or implicit gender component. Efforts regarding the gender balance produced some results in the more recent configuration of the committees, with 33 per cent of female members in the 2019 formation. The uneven geographic representation is also problematic at the Committee, although less obvious. Following a fundamental principle of the United Nations, Article 29 During the 1977–​1980 term the elected experts from Iran and Colombia served concurrently as cabinet ministers. Additionally, UN ambassadors from Cyprus, Jordan, Tunisia, and Venezuela as well as other various holders of government positions have served. See Opsahl, above n 2, footnote 33. 30 In certain recent formations, some experts, while being a member of the Committee, may have exercised diplomatic functions or worked for their government in official capacities. 31 See also: Guidelines on the Independence and Impartiality of Members of the Human Rights Treaty Bodies (Addis Ababa Guidelines), A/​67/​222. 32 I Truscan, ‘The Independence of UN Human Rights Treaty Body Members’ Academy in Brief n°1 (Geneva: Geneva Academy, 2012), 48. 33 From 1977 to 1985, the members of Committee were exclusively male. This changed with the election of Mrs Higgins (1985), Ms Chanet (1987), Ms Evatt (1993). 34 Some timid rules regarding the gender representation are provided for an increasing number of international bodies such as for instance the International Criminal Court, the European Court of Human Rights, or the Human Rights Council. Article 36(8)(a)(iii) of the Rome Statute of the International Criminal Court; Human Rights Council, 5/​1 Institution-​building of the United Nations Human Rights Council, § 72; Article 14 of the Rules of the European Court of Human Rights, 1 April 2011.

The Human Rights Committee  345 31(2) of the ICCPR states that in the ‘election of the Committee, consideration shall be given to equitable geographical distribution of membership and to the representation of the different forms of civilization and of the principal legal systems’.35 Typically, Western states are over-​represented to the detriment of African, Asian and East European states.36 It is worth noting that geographic representation is not only a question of legitimacy: having experts with a diversity of backgrounds also ensures a better understanding of different approaches to human rights by different cultures and legal traditions. In any case, perfect geographic representation is an elusive goal and may only emerge taking into account the passage of time and the fact that the representation of regions comes and goes. The Committee’s membership has demonstrated an effective sense of institutional continuity over the years. Members of the Committee are elected for a term of four years and may be re-​elected indefinitely. A significant number of past and present members have sat on the Committee for at least two or three terms.37 Since there is no limitation in the number of successive mandates, some members have sat on the Committee for more than a decade. While the institutional continuity of the Committee is a key aspect, some sense of sound turnover may contribute to energising and stimulating its work. The possibility of re-​election may be perceived as endangering the independence and impartiality of the members who may need to ‘win’ their re-​election thanks to the support of some states. A longer single term for all members—​that is, a term of nine years with no possibility of reelection, as for the European Court of Human Rights—​ could reduce exposure to criticisms and improve the legitimacy and authority of the Committee.

(c)  Structure and operation Like other UN human rights treaty bodies, the Committee receives secretariat support from the Human Rights Treaties Branch of the Office of the High Commissioner on Human Rights in Geneva.38 Assessing the effectiveness of the work of the Committee 35 International Covenant on Civil and Political Rights, Article 31(2). As of 2019, the 18 members serving on the Human Rights Committee were from (the states that have ratified the Optional Protocol are in italic): Albania, Canada; Chile; Egypt; France; Germany; Guyana; Greece; Israel; Japan; Latvia;Mauritania; Portugal; Tunisia; Mauritania; Uganda; Slovenia; South Africa. 36 In 2019, for example, Asia was clearly underrepresented with one expert, in comparison with the number of experts appointed from the other groups (six for Western Europe and Others, six for Africa, two for Latin America and the Caribbean and three for Eastern Europe). This situation can be explained by the much smaller number of ratifications by Asian states, although major states such as India (1979), Japan (1979), Thailand (1996), Bangladesh (2000) have been parties to the Covenant. The adhesion of Indonesia (2006) and Pakistan (2010) may have an impact on the further representation of Asia. China signed the Covenant in 1998. However, it did not ratify it. 37 Mr Rajsoomer Lallah from Mauritius was the longest serving member on the Committee, having served from 1977 to 2012. 38 ICCPR, Article 36; Rules, Articles 24 and n. The Committee repeatedly regrets the lack of secretariat staff available and pleads for the allocation of the necessary staff. In 2000, a Petitions team (that became later the Petitions Unit composed of thirteen staff) was established. The Petitions Unit serves the petition procedures of the Human Rights Committee as well as other treaty-​bodies such as the Committee Against Torture, the Committee on the Elimination of Racial Discrimination, and the Committee on the Elimination of Discrimination Against Women.

346  Ludovic Hennebel must take into account that this permanent body holds only three-​weekly sessions a year and suffers from a serious lack of resources.39 The Committee enjoys a certain autonomy regarding its own working organization and has the power to establish its own rules of procedure.40 According to these Rules, the Committee appoints, amongst its members, a Chairperson, three Vice-​ Chairpersons and a Rapporteur, forming the ‘Bureau of the Committee’ for a two-​year term.41 In addition, the Committee can create subsidiary bodies for a more effective organization of its work.42 For instance, it has established different working groups (such as the working group on communications), task forces (such as the country report task forces), and special rapporteurs (such as the special rapporteur on new communications and interim measures or the special rapporteur for follow-​up on views or on concluding observations—​not to be confused with the Human Rights Commission/​ Council rapporteurs of course). The Covenant determines that these rules must state that the quorum is of twelve members and that the decisions of the Committee are made by a majority of the members present.43 In practice, however, the Committee uses a consensual decision-​making process.44 The Human Rights Committee is by its functions multidimensional. Simply stated, it monitors respect by the States parties of their obligations according to the ICCPR when exercising its scrutiny of States’ reports45 and it acts as a quasi-​judicial organ when exercising its competence over individual communications.46 These functions do not necessarily require the same skills, methods and attitude towards the states. For instance, dialogue with states as part of the examination of their reports may call for sensitivity to political considerations and characteristically diplomatic skills. On the other hand, a strict independence and impartiality would be paramount for exercising a quasi-​judicial function, which should foreclose political considerations when adjudicating a case. It appears that this dual character of the Committee is central to understand the nature of the institution and some of its dilemmas. In sum, the Committee is not a court but may act in a judicial spirit, and it is not a diplomatic organ but it is required to act like one in some respects. Considering the importance of the mandate of the Human Rights Committee, it is regrettable that its work is not better disseminated. The individual communication procedure is largely confidential—​given, in particular, that until the reform of the Rules of procedure in 2019 (Rule 101(4)), there was no oral hearings, which can now be allowed in exceptional cases by the Committee. This is somehow compensated for by the publication 39 The OHCHR is funded by the UN regular budget (125.6 million in 2018) and from voluntary contributions from donors, mainly states (187.1 million in 2018). In 2018, 9.9 per cent of total expenditures of the OHCHR were allocated to support the human rights treaty bodies. See OHCHR Report 2018. 40 Rules of Procedure of the Human Rights Committee, 9 January 2019, CCPR/​C/​3/​Rev.11. 41 Rules, Articles 16 and n.. ICCPR, Article 39. 42 Rules, Article 63 and Article 95. 43 ICCPR, Article 39(2). See also: Article 39 of the Rules of Procedure. The Committee may organize its meetings on reports or communications either in plenary or in chambers, in accordance with the rules of procedure as amended in 2019. 44 See however, ICCPR, Article 33(1) and Article 42(1)(b). 45 ICCPR, Article 40. 46 ICCPR, Article 41 and Article 42.

The Human Rights Committee  347 of the admissibility decision and the views in the Committee’s reports. Nonetheless, the work of the Committee suffers from a lack of publicity that explains why the Committee has remained unknown to lay audiences.47 This is less the result of a voluntary lack of transparency than it is the consequence of a lack of resources. Still, the lack of publicity inevitably impacts on the global significance of the work of the Committee.48

10.2  The functions of the Human Rights Committee According to the ICCPR and the First Optional Protocol, the Committee can use three main mechanisms to monitor respect by the States parties of their obligations under the Covenant. The first is the reporting mechanism, prescribed under Article 40 of the Covenant (A). It is binding on all States parties to the Covenant, and involves the request and consideration of state reports submitted by States parties. The second function relates to the individual complaints mechanism under Optional Protocol (B). The third is the inter-​state communications mechanism that requires the receipt and consideration of inter-​state or state-​to-​state communications (C). This mechanism is optional but it is provided by the Covenant and not under a separate protocol. It must be mentioned although, given that it has never been used, its practical impact is insignificant. Additionally, the Committee adopts ‘general comments’ dealing with specific provisions or issues under the ICCPR drawn on its experience based on the reporting mechanism and on the consideration of individual communications (D).

(a)  The reporting mechanism The reporting mechanism concerns all States parties to the ICCPR who must report on all the rights and freedoms of the Covenant. It represents the only obligatory and continuing supervision mechanism of the ICCPR. Article 40 of the Covenant provides that ‘the States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognised herein and on the progress made in the enjoyment of those rights’.49 The reporting mechanism has developed over time into its current form, and like many other features of the Human Rights Committee, it has been a result of the Committee using creative licence in its interpretation of the Covenant. The reporting mechanism is a subtle tool that has been 47 The documents published by the Committee are available on the Committee’s website: http://​www2.ohchr. org/​english/​bodies/​hrc/​ 48 The Human Rights Committee is fully aware of this weakness and is developing a media strategy. See ‘A Strategic Approach to Public Relations, Including Relations with the Media’, 15 January 2009, CCPR/​C/​94/​3. The Committee continues to develop a media strategy, including through the holding press conferences at the end of each session. See the Human Rights Committee 2019 Report (A/​74/​40), p. 7. For a discussion on the publicity and accessibility of the reporting system, refer to P Alston, ‘Beyond “them” and “us”: Putting Treaty Body Reform into Perspective’ in P Alston and J. Crawford (ed), above n 4, at 505 (and ref. cited). 49 For the early evolution of the reporting procedures, see P Alston, ‘The Purposes of Reporting’, in Manual on Human Rights Reporting (Geneva, 1997), 19.

348  Ludovic Hennebel used by the Committee with authority to engage into a kind of challenging ‘diplomatic’ dialogue with most of the States parties. i. Overview of the procedure All States parties must submit an initial report within one year of entry into force of the Covenant and thereafter when the Committee so requests.50 The Committee first took the decision that the periodicity for submission of subsequent reports under Article 40(1)(b) would be set at a five-​year cycle for all states.51 Such a time was needed to get an overview of the progress made by the reporting states. Moreover, establishing a uniform five-​year rule for all states was intended to avoid the perception that the Committee could become overtly political through a selective or disproportionate consideration of a specific state or region.52 Since 2001, the Committee has moved to a more flexible and dynamic system of periodicity to allow for the consideration of subsequent reports on a case-​by-​case basis,53 and increased the periodicity for submitting a report up to six years.54 After the submission of the report, the Committee considers it. The relevant country rapporteur of the Human Rights Committee prepares with the Secretariat a draft list of issues to be discussed in the light of the report sent by the state and all the information collected. The list is sent to the reporting state, published, and then discussed at a public meeting with the representatives of the reporting state. In an attempt to reduce the increasing burden of the traditional application of the Article 40 reporting obligation, and without engaging in a controversial practice jeopardizing its political neutrality, the Committee adopted in 2009 a new reporting procedure allowing it to send a list of issues (called LOIPR, ie ‘list of issues prior to reporting’) to the states and to consider a ‘focused report based on replies to a list of issues’.55 The focused report includes 50 ICCPR, Article 40(1a and b). Since the reporting mechanism represents an important burden for the States parties, the idea to allow them to submit one overall consolidated report for all the UN treaty reporting procedure has been discussed. So far, no agreement has been found except on the proposal of one common core document with basic information useful to all UN treaty bodies. 51 1981 Report, 104. See for further details, Pocar, ‘The International Covenant on Civil and Political Rights’ in Manual on Human Rights Reporting (Geneva, 1997) 173. The Committee adopted a special decision concerning the due date of the subsequent report of the reporting states in special circumstances and agreed to extend the deadlines or turned down some requests for extension. See 1987 Report, § 48. 52 R Higgins, ‘Ten Years on the UN Human Rights Committee: Some Thoughts upon Parting’ (1996), 6 European Human Rights Law Review 573, 572. According to this author one of the greatest strengths of the Committee is that it is not another UN political body ‘berating’ a limited number of ‘targeted’ states. The Committee prides itself on the fact that it deals with each state routinely and as such States parties know that they are called simply because it is their turn. 53 Revised Guidelines CCPR/​C/​66/​GUI/​Rev.2, February 2001. See ‘Guidelines for the treaty-​specific document to be submitted by States parties under article 40 of the International Covenant on Civil and Political Rights’, 22 November 2010, CCPR/​c/​2009/​1, § 12 (hereinafter 2010 Guidelines). 54 2014 report, 94, 119. This means that the Committee may now ask States parties ‘to submit their subsequent periodic reports within three, four, five or six years’. The Committee plans to move in 2020 to a ‘predictable review cycle’ that will be based on an eight-​year cycle. See Human Rights Committee, ‘Decision on additional measures to simplify the reporting procedure and increase predictability’, 126th session, 1–​26 July 2019. 55 Human Rights Committee, ‘Focused reports based on replies to lists of issues prior to reporting (LOIPR): Implementation of the new optional reporting procedure (LOIPR procedure), CCPR/​C/​99/​4 (2010). At its 123rd session in July 2018, the Committee adopted the simplified reporting procedure as a permanent ­feature and decided to strive to limit the number of questions in each list of issues to twenty-​five questions. Moreover, it attempts to align the lists of issues with other treaty bodies.

The Human Rights Committee  349 a first section with general information on human rights in the state concerned and a second section with the answers to specific questions asked by the Committee based on human rights situation in the state and the information available to the Committee. This new reporting procedure is optional. The states may decide to continue to submit their reports under the traditional procedure. It is moreover not applicable to initial reports but only to periodic reports. It may help streamline reporting and make it more focused when the Committee is already quite familiar from previous reports with the issues that most need addressing. The last step of the procedure is the adoption in a private meeting of the concluding observations56 of the Committee that describe the general evaluation of the state report, mention the positive developments as well as the main concerns, and provide some recommendations to the state, such as, for instance, the amendment or abrogation of outdated laws or specific human rights concerns.57 These concluding observations are addressed to the reporting state and published in the annual report of the Committee.58 ii. ‘Fact-​finding’ and information The reports must follow a consistent pattern. They must mention the measures adopted by the reporting state to give effect to the rights of the Covenant;59 the progress made in the enjoyment of the rights; and the factors and difficulties affecting the implementation of the Covenant. The Committee requires details concerning legislative, executive and judicial information, as well as statistical or other figures that may help to better assess the application and implementation of the Covenant. Understandably, the effectiveness and the quality of the reporting procedure depend upon the quality of the information provided to the Committee. Realistically States parties under the scrutiny of the Committee’s reporting procedure are likely to present a favourable version of the relevant information or to submit a very descriptive report on the state of the law. For that reason, the use of external information is vital in ensuring that the Committee’s work remains effective and credible.60 Although the use of other sources of information has been highly controversial during the Cold War, nowadays it is more widely accepted that the Committee—​and its members—​may get information from other reports and studies of various UN institutions, including those provided by UN special rapporteurs, Human Rights Commission/​Council, or other UN human rights treaty bodies, or by institutions such as the High Commissioner for Refugees 56 The Committee introduced the term ‘concluding observation’ in 1997 instead of the term comments or reports used in Article 40(4) of the Covenant. 57 See for ­example 2010 report, 18–​98. See for e­ xample 1986 report, 12. 58 This documentation can be found on the Committee’s website: http://​www2.ohchr.org/​english/​bodies/​hrc 59 The States parties to the Second Optional Protocol should provide information ‘on the measures they have adopted to give effect’ to it (Article 3). Moreover, when the Committee has views regarding States parties to the First Optional Protocol, they must include ‘information about the steps taken to provide a remedy, or meet such a concern, and to ensure that any circumstance thus criticised does not recur’. UN Doc CCPR/​C/​66/​GUI/​ Rev.2, § F.1. 60 For a detailed discussion of the Committee’s use of external sources of information refer to: Buergenthal, above n 2, 351–​3. The use of information provided by special agencies has evolved over time. Article 40(3) states that the ‘Secretary-​General of the United Nations may, after consultation with the Committee, transmit to the specialised agencies concerned copies of such parts of the reports as may fall within their field of competence’.

350  Ludovic Hennebel but also from non-​UN external sources of information such as regional human rights bodies, including regional human rights courts, NGOs, or national human rights institutions.61 The list of issues and the replies are posted on the Committee’s website in advance of the public meeting, and the NGOs have the opportunity to comment. Some have gone as far as to draft ‘shadow reports’ despite some states’ attempts to coopt them in the process of submitting the state report. As underlined by Tyagi,62 if during the first two decades of its operation, the lack of information was a challenge for the Committee, now the challenge is the flood of information, which requires to adopt a solid, transparent, and credible methodology of treatment. iii. A ‘constructive dialogue’ The Committee has developed the reporting mechanism as a tool for constructive dialogue ensuring a qualitative evaluation of the human rights record of the reporting states. To achieve this goal, it had to gain credibility and trust from the states by showing political neutrality. Maintaining effective independence and a strong notion of fairness are paramount requirements to ensure the success of the Committee’s supervisory activities. It has worked towards ensuring these virtues through the establishment of an equitable rotation policy in its request for reports and by not targeting specific countries or regions. However, due to pragmatic concerns regarding the limited time and resources of the Committee, it has also been argued that the Committee should focus on ‘special reports from countries that have serious human rights problems, while limiting the scope and frequency of periodic reports from states with less serious problems’.63 This could contribute to ease its workload. A selective reporting mechanism is already used by the Committee to discretionarily request ‘special reports’—​in addition to the periodic reports64—​from states parties facing a serious human rights situation that requires immediate address,65 The special reporting mechanism shows the creativity of the Committee and its determination to deal with topical concerns and serious human rights violations.66 Yet while the idea of further targeting states offers a potential solution to improve the effectiveness of the mechanism, it could become quite controversial and might put the reputation for neutrality of the Committee at risk. Moreover, even 61 The Committee has published policy papers clarifying its relationship with NGOs (4 June 2012, CCPR/​C/​104/​ 3), and with the national human rights institutions (13 November 2012, CCPR/​C/​106/​3). 62 Tyagi, above n 2, 232. 63 Buergenthal, above n 2, 359. 64 In 2004, the Committee requested the United States to submit its overdue second and third periodic report and/​or a special report on the counter-​terrorism policy and its impact on human rights. The United States submitted a combined special and periodic report. See Tyagi, above n 2, 182. 65 The early utilization of this procedure came in response to well-​documented international events including the assassination of the Chairperson of the Human Rights Commission of El Salvador in 1987 (UN Doc CCPR/​C/​ SR.762, 2 November 1987); the war in the Gulf region (Iraq, 1991); the war in the Republic of Yugoslavia (Former Yugoslavia, 1991); and other States facing serious situations or particular issues (eg Peru, 1992; Angola, Burundi, 1993, Rwanda and Haiti, 1994, Nigeria, 1995, the United Kingdom regarding Hong Kong, 1996). For a detailed discussion of Special Reports see O’Flaherty, ‘Treaty Bodies Responding to States of Emergency: The Case of Bosnia and Herzegovina’ in P Alston and J Crawford (eds), above n 4, 439. 66 For instance, in 2004, the Committee requested the United Nations Interim Administration Mission in Kosovo to provide a report on the situation of human rights since 1999, which was done in 2006. See UN Doc CCPR/​C/​UNK/​1 (13 March  2006).

The Human Rights Committee  351 states that are considered to be more respectful of human rights may gain significant and different insights from the concluding observations of the Committee and so are in a sense just as ‘deserving’ of being its targets. When performed as intended, the reporting procedure has become increasingly assertive and succeeded not only in maintaining a respectful dialogue but also in engaging states more directly in an adversarial exchange. After the Cold War, the Committee became more intrusive when questioning the states on their reports and in some ways the current practice of the Committee ‘is at once more honest, even-​handed and certainly more inquisitorial in style’.67 Considering the limited time frame available and the issues to cover, the work of the Committee is convincing. To facilitate the desired level of dialogue the Committee has attempted to establish a procedure where the state and the Committee use the initial report as a sort of preliminary phase. After this introductory phase and during the first subsequent report, the questioning process increases in substance and details. Further subsequent reports are to focus on addressing pre-​identified areas, especially under the ‘list of issues prior to reporting’ system. However, the Human Rights Committee has only achieved limited success with this approach, as geo-​political and economic realities coupled with the poor reporting records of certain states has compromised the realization of a consistent two-​way exchange. The effectiveness of the desired dialogue depends largely on the state’s ability and willingness to participate in the process. States that are committed to get the most from the expertise of the Committee in a spirit of transparency and dialogue obviously make for the most fruitful exchanges. Yet some States parties to the Covenant—​such as the Soviet States during the Cold War—​used to resort to a ‘filibuster approach’, while others have purposely sent representatives that are clearly under-​qualified and unable to answer the pertinent questions and engage with the dialogue. In response, the Committee has in the past developed a practice of stopping proceedings and insisting they be delayed until the state provides the delegates or resources to ensure an effective exchange can take place. This shows that the Committee does not expect a formal dialogue with the reporting states but rather a solid and credible dialogue with reliable representatives.68 Compared to individual petition systems, which are traditionally seen by states as a threat to their sovereignty and an interference with their internal affairs, reporting systems have been perceived as less ‘harmful’ by most states. This partly explains why the UN human rights treaties provide for a mandatory reporting system. It does not mean however that the reporting mechanisms are weaker or unsuitable to achieve human rights implementation. The effectiveness of the reporting mechanism depends upon how this tool is used by the supervisory body. The Committee’s reporting system has demonstrated that there is a cause for cautious optimism, even though it has displayed a need for reform. 67 Buergenthal, above n 2, 355–​6. The concluding observations were rather descriptive at the beginning and became over time more prescriptive. 68 In its concluding observations, the Committee briefly comments on the quality of the dialogue with the delegation.

352  Ludovic Hennebel iv. The problem of late, incomplete, or absent reports The effectiveness of the reporting system under the Human Rights Committee is contingent on the States parties actively participating and cooperating with the requirements imposed upon them by the Covenant and the Rules of Procedure. Perhaps the greatest threat to the reporting obligation under Article 40 are so-​called ‘delinquent reports’. Late, incomplete, absent state reports, or requests made by the states to postpone their scheduled appearances before the Committee at short notice, have seriously affected the reporting mechanism. For instance, according to the 2019 report of the Committee, the initial reports of sixteen states parties were overdue; the periodic reports were overdue by ten years or more for thirteen States parties, between five and ten years for ten States parties, and five years for twenty-​height States parties.69 The Committee already amended its procedure in 2001 to deal with these situations (rules 68 and 70). Although, it did not solve the problem, thanks to the amendments, the Committee may now consider the measures adopted by the State party to give effect to the Covenant even in the absence of a report and delegation.70 The Committee adopts provisional concluding observations that are sent to the state, which may be modified in light of comments submitted by the state, and become final if the state does not meet the deadline to submit a periodic report addressing the concerns of the Committee, and then are made public.71 It is clear however that, whilst putting necessary pressure on states, such a mechanism is a poor substitute for the sort of lively exchange that should ideally occur in Geneva. While the issue of delinquent reports often concerns States, that have an interest in insulating their poor human rights record from international scrutiny, this is not exclusively the case. Delinquency can also be attributed to those States parties that lack the appropriate resources to make timely and substantive contributions, states that are in the midst of internal turmoil and must prioritise their resources, and states who exhibit an apathetic attitude towards international reporting mechanisms based on their belief that they already possess a superior human rights record. In order to best address these scenarios, the Committee must break down the issue of delinquent reports to appreciate the variety of factors that have given rise to them. Delinquent reports seriously undermine the Committee’s ability to establish a constructive dialogue with certain States parties, although it must be noted that a certain institutional irony exists. Indeed, the lack of resource of the Committee that meets only a few weeks per year would prevent that body from assessing all the reports of the States parties if they were submitted on time. The issue relating to backlog and institutional limitations could probably be resolved through a significant influx of money and other resources. However, considering the current financial climate within the United 69 A/​74/​40. 70 In its 2019 report, the Committee stated that procedure to examine States parties in the absence of a report has been initiated with regard to the following 24 States parties: Bangladesh, Barbados, Belize, Cabo Verde, Central African Republic, Côte d’Ivoire, Dominica, Equatorial Guinea, Eritrea, Eswatini, Gambia, Grenada, Haiti, Kenya, Malawi, Mozambique, Nicaragua, Nigeria, Rwanda, Saint Vincent and the Grenadines, San Marino, Seychelles, South Africa and Suriname. A/​74/​40, §65. 71 See for ­example 2015 Report, 16–​17.

The Human Rights Committee  353 Nations this remains highly unlikely. As such, the Committee must continue its current practices and cope as best as possible with existing restrictive conditions. v. Concluding observations At least with the states that have agreed to cooperate, the Committee has been able to set up a qualitative dialogue. The concluding observations display a diligent assessment of the human rights record of the reporting states. The procedural and substantial recommendations are clear and rigorous. The Committee does not hesitate to be intrusive and specific in its recommendations. For instance, it may recommend the reporting state, inter alia to ratify other human rights related treaties,72 the first Optional Protocol73 of the ICCPR, or the second Optional Protocol;74 to comply with the obligations under the Covenant and other international instruments;75 to incorporate the Covenant into its domestic legal order;76 to facilitate the participation of civil society in the reporting procedure before the Committee; to withdraw its reservations to the Covenant;77 to give full effect to the recommendations, to the rights of the Covenant78 or to the views of the Committee in the domestic order;79 to disseminate the Covenant among domestic judges;80 to adopt a new law,81 to repeal a law82 or to amend its legal system on specific issues;83 to end a practice violating human rights;84 to bring a draft constitution in line with international human rights standards;85 to establish new protective mechanisms,86 such as a national human rights institution in conformity with the Paris Principles87 or to reinforce an existing mechanism;88 and to address specific human rights issues concerning the most vulnerable.89 72 See for example Concluding observations, Russian Federation, CCPR/​C/​RUS/​CO/​6, 24 November 2009 (recommending to the Russian Federation to accede to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness). 73 See for example Concluding observations, Switzerland, CCPR/​C/​CHE/​CO/​4, 22 August 2017. 74 See for example Concluding observations, Indonesia, CCPR/​C/​IDN/​CO/​1, 21 August 2013. 75 See for example Concluding observations, Colombia, CCPR/​C/​COL/​CO/​6 (regarding the obligations of Colombia under the Rome Statute of the International Criminal Court and the international humanitarian law). 76 See for example Concluding observations, Denmark, CCPR/​C/​DNK/​CO/​6, 15 August 2016; Concluding observations, Viet Nam, CCPR/​C/​VNM/​CO/​3, 29 August 2019. 77 See for example Concluding observations, Switzerland, CCPR//​CHE/​CO/​4, 22 August 2017. 78 Concluding observations, Pakistan, CCPR/​C/​PAK/​CO/​1, 23 August 2017. 79 See for example Concluding observations, Denmark, CCPR/​C/​DNK/​CO/​6, 15 August 2016. 80 See for example Concluding observations, Swaziland, CCPR/​C/​SWZ/​CO/​1, 23 August 2017. 81 See for example Concluding observations, Monaco, CCPR/​C/​MCO/​CO/​2, 12 December 2008 (on domestic violence in Monaco); Concluding observations, Mauritania, CCPR/​C/​MRT/​CO/​2, 23 August 2019 (on the laws on terrorism, corruption, and narcotics conflicting with the prohibition of torture and other international standards). 82 Concluding observations, Spain, CCPR/​C/​ESP/​CO/​6, 14 August 2015 (on the 1977 amnesty law). 83 See for example Concluding observations, Pakistan, CCPR/​ C/​ PAK/​ CO/​ 1, 23 August 2017 (on the Anti-​Terrorism  Act). 84 Concluding observations, Slovakia, CCPR/​C/​SVK/​CO/​4, 22 November 2016 (on corporal punishment). 85 See for example Concluding observations, Mexico, CCPR/​C/​MEX/​CO/​5, 17 May 2010. 86 Concluding observations, Viet Nam, CCPR/​C/​VNM/​CO/​3, 29 August 2019. 87 Concluding observations, Switzerland, CCPR//​CHE/​CO/​4, 22 August 2017. 88 See for example Concluding observations, Russian Federation, CCPR/​C/​RUS/​CO/​6, 24 November 2009 (on the Federal Commissioner for Human Rights and the regional ombudsmen in the Russian Federation). See also: Concluding observations, Mauritania, CCPR/​C/​MRT/​CO/​2, 23 August 2019. 89 See for instance Concluding observations, Pakistan, CCPR/​C/​PAK/​CO/​1, 23 August 2017 (on violence against women); Concluding observations, Swaziland, CCPR/​C/​SWZ/​CO/​1, 23 August 2017 (persons living with HIV/​AIDS; persons with albinism); Concluding observations, Honduras, CCPR/​C/​HND/​CO/​2, 22 August 2017 (indigenous people and minorities).

354  Ludovic Hennebel Some of the recommendations may be assimilated to a form of remedy in certain cases90 and have at some point a judicial or quasi-​judicial nature.91 This is the case when the Committee tackles a specific and concrete situation of human rights violations and recommends that the state take the necessary steps to deal with the situation. The measures recommended by the Committee have been more demanding and explicit92 over the years, and may address some challenging cultural and societal issues. Regarding the States parties to the Optional Protocol, the Committee may use its recommendations under the reporting mechanism to echo a specific case,93 especially when the views were not implemented.94 Moreover, in some observations, the Committee refers to the rulings on particular cases of regional human rights courts such as the Inter-​American Court of Human Rights95 or the European Court of Human Rights.96 The concluding observations are published by the Committee in its annual reports to the General Assembly. The observations are valuable to identify structural, procedural and substantial human rights issues in the reporting states. The Committee requests the reporting states to translate and disseminate them among the public for information and discussion. In its concluding observations, the Committee also requires the reporting states to submit information regarding the implementation of its recommendations. The Committee has set out a follow-​up procedure aiming at ensuring the implementation of its observations and to maintain the dialogue with the reporting states. A Special Rapporteur for follow-​up on concluding observations is in charge of examining the information provided by the reporting states on that matter. When the state fails to implement the recommendations, the Special Rapporteur may send reminders, organise a meeting with representatives of the state, or inform the Committee, which may state the failure in its annual report to the General Assembly.

(b)  The individual communication mechanism Individuals are the main beneficiaries of the rights and liberties under the Covenant. Under the Optional Protocol a State party may grant the Committee competence to receive and consider individual communications alleging violations of the Covenant. In 2019, some 116 States parties had ratified the Optional Protocol, therefore empowering 90 See for instance Concluding observations, Croatia, CCPR/​C/​HRV/​CO/​2, 4 November 2009 (on war crimes). 91 See Concluding observations, Uzbekistan, CCPR/​C/​UZB/​CO/​3, 7 April 2010 (concerning the killings by military and security services of 700 civilians in Andijan in 2005). 92 See for example Concluding observations, Pakistan, CCPR/​C/​PAK/​CO/​1, 23 August 2017 (on abortion). 93 See for example Concluding observations, Sweden, CCPR/​C/​SWE/​CO/​6, 7 May 2009. 94 See for example Concluding observations, New Zealand, CCPR/​C/​NZL/​CO/​5, 7 April 2010; Concluding observations, The Netherlands, CCPR/​C/​NLD/​CO/​5, 22 August 2019. 95 See for example Concluding observations, Nicaragua, CCPR/​C/​NIC/​CO/​3, 12 December 2008 (concerning indigenous people issues: Inter-​American Court of Human Rights, Yatama Case v Nicaragua and Awas Tingni case v Nicaragua); Concluding observations, Paraguay, CCPR/​C/​PRY/​CO/​4, 20 August 2019 (concerning indigenous people issues: Inter-​American Court of Human Rights’ cases concerning the Sawhoyamaxa, Yakye Axa and Xákmok Kásek communities). 96 Concluding observations, Russian Federation, CCPR/​C/​RUS/​CO/​6, 24 November 2009 (concerning human rights abuses committed in Chechnya).

The Human Rights Committee  355 individuals under their jurisdiction to complain before the Committee for a violation of their rights under the Covenant. The fact that all the States parties to the Covenant did not ratify the Optional Protocol creates a sort of ‘double standard’ in which some States submit themselves to the full range of supervision measures whilst some avoid what may be the most intrusive. It is generally thought to be the case that the States that have recognised the right of individual petition are often among those who least violate human rights, creating a situation where their record is more internationally exposed whereas that of some of the worst offenders escapes at least that form of scrutiny. The quasi-​judicial function exercised under the Optional Protocol is per se critical to appreciate the nature of the Committee and its role in the global human rights framework. Since the International Court of Justice does not have jurisdiction over petitions lodged by individuals, the Human Rights Committee appears nowadays to be the closest institution to an international adjudicatory body for human rights. Although it is not the only UN treaty body that exercises a quasi-​judicial function, the very broad subject-​matter of the Covenant and the large ratification of the Optional Protocol, explain that it may appear as the closest thing to a ‘universal human rights court’. Of course, the Committee is not a court, albeit it acts in a ‘judicial spirit’.97 Despite the fact that it does not have the power to adopt legally-​binding decisions or rulings like the regional human rights courts (the ‘imperium’)—​it does however have the power to do justice (juridictio, including jus dicere, the power to say the law), expressed here as the power to adopt its ‘views’ over the cases submitted by individuals. These views are weighty to some extent and may at least be seen as a window to access international justice for human rights abuses.98 The caseload of the Committee has increased very slowly. In its 2019 report,99 the Committee indicated that since it started operating under the Optional Protocol in 1977, only 3,624 communications have been registered concerning 93 States parties. The Committee reported having adopted its views in 1,511 cases and found a violation of the Covenant in 1,157 of them. It has declared inadmissible 723 communications, while 470 cases were discontinued or withdrawn, and 920 are still pending. Due to the lack of resources, it is unlikely that the Committee could handle a more substantial caseload. i. Early resistance The inclusion and expansion of the individual communication procedure was met with great initial resistance requiring eventual compromise. Whilst the right of individual petition has now become commonplace in regional contexts such as the Council of Europe, the Organization of American states, or the African Union, its proposed introduction into the ICCPR was seen by many as very radical in terms of sovereignty. In fact, it was perhaps the most controversial issue tabled by those responsible for drafting 97 A Amor, ‘Le Comité des droits de l’homme des Nations Unies -​Aux confins d’une juridiction internationale des droits de l’homme’ in N Ando (ed), above n 23, 41. 98 See Steiner, above n 2, 32. 99 A/​74/​40,  §25.

356  Ludovic Hennebel the Covenant. The issue was formally raised by the General Assembly which, as early as 1950, requested the drafters to consider the inclusion of an individual complaints mechanism.100 Such ‘proposals were almost necessarily going to be controversial as already some states had indicated that they considered the draft proposals for an inter-​ state procedure to be contrary to national sovereignty, international law, and Article 2(7) of the United Nations Charter’.101 Proposals ranged from offering individuals, groups, and NGOs the right to petition, to ‘empowering the Human Rights Committee to act of its own motion, merely granting the right to communicate but leaving the matter of any action thereafter to the initiative of the [Committee] or States Parties’.102 Simply stated, opponents to the individual petition mechanism claimed that only states were subjects of international law and therefore the inter-​states complaint mechanism was the adequate means to ensure the respect for the Covenant. The individual petition system was seen as an interference with state sovereignty allowing individuals to challenge states, some of which feared the abuses of such a mechanism. Supporters of the individual petition mechanism, conversely, claimed that effective implementation required extending the protection enshrined within the Covenant beyond the singular notion of the Nation State. It was argued that, ‘the Covenant had to give the individual human being a basic right to protest when his dignity was impaired. A particular plea was made to allow non-​ governmental organizations having consultative status with ECOSOC to have the right to petition’.103 As an attempted compromise, the individual petition mechanism was relegated to an optional protocol and not included in the Covenant. Significant debate occurred as to the general appropriateness and the specific formation of the instrument but eventually the Optional Protocol was adopted by the General Assembly. The existence of a separate Protocol means that states can become a party to the Covenant and accept the rest of the Committee’s supervisory functions whilst not accepting individual petitions. The conclusion of this process represented nearly twenty years of intensive deliberation facilitated by necessary compromise and still needed an additional ten years before the Covenant along with the Optional Protocol came into force on 23 March 1976, simultaneously with the ICCPR. The influence that the adoption of the Optional Protocol holds over international law cannot be underestimated. Although not the first form of international individual adjudication the effects that the Committee’s complaints procedure has had in championing the legal status of the individual by providing the right of petition is of

100 GA Res 421 (V) Section F, cited in UN Doc A/​2929, 10 GAOR, § 22. 101 These objections were voiced by the Soviet Bloc who believed that measures of implementation should be restricted to domestic means and not held at the international level. They argued that international measures which in effect would force a state to act in a certain way were contrary to the principle of domestic jurisdiction enshrined in Article 2(7) of the UN Charter. See R. Bernhardt, ‘Domestic Jurisdiction of States and International Human Rights Organs’ (1987) 7 Human Rights Law Journal. 102 UN Doc A/​2929, 10 GAOR, pr.76; ECOSOC OR, 16th Session, Supp 8, Annex 3, §§132–​143. For the various proposals submitted, see: Tyagi, above n 2, 389. 103 McGoldrick, above n 2, 123.

The Human Rights Committee  357 great significance. Perceived as a progressive step, the Optional Protocol was nevertheless the result of a laborious consensus leaving great lacunae in its formulation as a result of political compromises. ii. Overview of the Procedure Individual communications are sent to the Human Rights Committee via the Secretary-​General of the UN. The Special Rapporteur on new communications appointed by the Committee among its members, processes new communications as soon as they are received. The Special Rapporteur deals with the individual communications at the preliminary stages by, inter alia, deciding on the registration of the communication, requiring additional information from the author or requesting interim measures if needed, and transmitting new communications to the States parties concerned. Case rapporteurs are in charge (with the support of the Secretariat) of drafting decisions on admissibility and merits for each communication, and of presenting them to the Working Group on Communications, composed of at least five members among the members of the Committee. The Working Group, which meets prior to each session, is empowered to declare a communication inadmissible by unanimous decision, but this decision is then transmitted to the Committee plenary, which may confirm it without formal discussion.104 Based on the written explanations and statements from the State party concerned and the author of the communication and on the arguments of both the admissibility and the merits, the Working Group considers the communications and then makes recommendations to the Committee that makes the final decisions as a whole. If the Committee considers the communication admissible, it moves to the consideration of merits and can either find a violation of the Covenant or not. In case of violation, the Committee may recommend the state concerned to ­implement a suitable remedy. The whole procedure is mainly written and confidential. According to the Rules amened in 2019, the Committee may ‘decide in exceptional cases to invite the parties to comment on each other’s submissions orally’, but oral hearings remain exceptional and a recent addition to the practice of the Committee.105 However, the decisions on admissibility, on the merits and on discontinuance are made public.106 Before the Committee, the procedure is adversarial since it bases its views on the written information provided by the parties without investigating the case on its own. Therefore, when the state concerned does not respond to the allegations, the Committee gives ‘due weight’ to the 104 Rules of Procedure, 98(4). According to Rule 98(3): the ‘working group shall make recommendations to the Committee concerning the fulfilment of the conditions of admissibility laid down in the Optional Protocol. The working group may also make recommendations to the Committee concerning the merits of the communications under examination’. See also Rules of Procedure, 99 empowering the working group to ascertain the admissibility requirements. 105 Concerning the oral hearing, see Rules of Procedure 101(4). Such procedure must respect the guidelines on making oral comments concerning communications (CCPR/​C/​159/​Rev.1, 26 March 2019), adopted on the 26 of March 2019. The guidelines on making oral comments concerning communications were adopted in the Committee’s 120th Session (CCPR/​C/​159, 21 December 2017), and the mechanism was used for the first time in Miller and Carroll v New Zeland, views adopted on 7 November 2017, 2502/​2014. 106 Rules of Procedure, 111(1) and 111(5).

358  Ludovic Hennebel arguments and claims made by the victim if they have been properly substantiated.107 In other words, it presumes that the facts and evidence provided by the victim are sufficiently substantiated in the absence of contrary information or evidence from the State.108 Surprisingly, there is no friendly settlement mechanism under the individual communication procedure.109 Overall, the procedure of individual communication is straightforward and rather pragmatic but the duration of the process is often excessively long since it can last up to four years.110 Although the procedure is easy and inexpensive, there is no legal aid or assistance provided by the UN and the states do not have an obligation under the Optional Protocol to provide such aid. As a result, victims have sometimes secured the free assistance of NGOs which may represent them in the procedure of the Optional Protocol before the Committee.111 In addition, in accordance with the Rules of Procedure as amended in 2019 (Rule 96), the Committee may now receive information or documentation from third parties acting as ‘amici curiae’. Guidelines adopted by the Committee aim to formally frame third party interventions before the Human Rights Committee. The consensus is supposed to strengthen the spirit of cooperation and teamwork of the members of the Committee. During the Cold War, era the need to reach compromise appeared to be fruitful and contributed to create a constructive climate. Evidently some disputes may be irreconcilable and in some situations—​especially in some individual communications cases—​the consensus may be difficult to reach. Therefore, when members disagree with the views or decisions of the Committee, they are allowed to express their individual opinions. After some discussions, the Committee agreed that members would join their individual opinions to the views or decisions adopted under the Option Protocol procedure. The individual opinions have been somewhat frequent,112 and are valuable to better understand the reasoning of the Committee, the ideological and legal viewpoints in opposition113 or the emergence of a new 107 See for example Kirpo v Tajikistan, views adopted on 27 October 2009, comm 1401/​2005; Al Rabassi v Libya, views adopted on 18 July 2014, comm 1860/​2009. 108 The lack of cooperation by States parties (Algeria, Belarus, Democratic Republic of the Congo, Libya, Russian Federation, Sri Lanka, and Turkmenistan) was pointed out by the Committee in its 2015 Report CCPR/​C/​113/​4., at 6. See also: 2019 Report A/​74/​40, §31. 109 However, nothing prevents the parties from being innovative and attempting to negotiate an amicable solution between themselves in the context of a complaint to the Human Rights Committee. See for an example: L.N.P. v. Argentina, views adopted on 18 July 2011, comm 1610/​2007, § 6. In this case, however, the Committee adopted its views on an emblematic case of violence against women and discrimination, and in order to ensure the follow-​up of the agreement. 110 Another shortfall is that the access to the Committee may be more complex for individuals who do not speak one of the three working languages of the Committee: English, French and Spanish. Although communication in any of the six official languages of the UN can be registered (thus allowing communication also in Arabic, Russian and Chinese), the necessity of translation may delay the consideration of the communication. 111 See for instance: Prashanta Kumar Pandey v Nepal, views adopted on 30 Octobre 2018, comm 2413/​2014: the victim was represented by counsel from TRIAL, Track Impunity Alwas; E.Z. v Kazakhstan, decision adopted on 1 April 2015, comm 2021/​2010: the victim was represented by counsel from the Open Society Justice Initiative and the Kazakhstan International Bureau on Human Rights and the Rule of Law. 112 Individual opinions were annexed to the Committee’s views and decisions in 36 cases—​over the 80 cases that were examined during these sessions—​for the year covered by the 2015 Report. 113 The individual opinions illustrate well the opposition between the conservative and liberal positions of the members on certain issues. See eg Amor and Khalil in X. v Colombia, views adopted on 30 March 2007, comm 1361/​2005 (non-​discrimination against homosexuals); Keller and Salvioli, in Cifuentes Elgueta v Chile, views adopted on 28 July 2009, comm 1536/​2006 (forced disappearance case).

The Human Rights Committee  359 jurisprudence. However, they may also have weakened some views and decisions by allowing States parties to refer to the dissenting opinions of the views they refuse to implement.114 iii. Admissibility challenges The Protocol details a number of admissibility requirements that an applicant must fulfil in order to have a communication considered by the Committee.115 Although the conditions of admissibility are established in the text, the Protocol does not provide the procedure for the determination of admissibility. This lacuna was filled through the Rules of Procedure. The conditions of admissibility contained in the text are relatively straightforward and share many characteristics with similar mechanisms under international law, including other UN human rights treaty bodies. However, the rate of admissibility is significant since only 32 per cent of the individual communications are deemed inadmissible.116 Before the European Court of Human Rights, about 95 per cent of the individual petitions are rejected at the admissibility stage. Strategically speaking, as far as the admissibility aspect is concerned, victims who have a choice between the Strasbourg or the Geneva venues to bring their individual claim regarding human rights violations may well prefer the latter. However, such strategic decisions would be influenced by other features, including the possibility of obtaining a binding decision before a regional court instead of recommendations provided by the Committee. Among the conditions of admissibility, the Committee must first ascertain its competence to consider the communication. The Committee is competent ratione materiae to consider communications alleging violations of the rights provided by the Covenant, Articles 6 to 27 inclusive. Several human rights have been considered ‘incompatible’ with the Covenant and therefore inadmissible communications invoking for instance: the right to property;117 the right of asylum;118 the right to see another person criminally prosecuted;119 the applicability of the criminal guarantees of Article  14  §  3,120 or of the principle of presumption of innocence enshrined in Article 14 § 2121 for proceedings that are not criminal; the right to trial by a jury in 114 See eg, 2010 Report, at 131, Dauphin v Canada, views adopted on 28 July 2009, comm 1792/​2008: The state considers that it cannot accept the Committee’s reasoning and agrees with the reasoning set out in the individual opinions attached to the views to support its non-​compliance. 115 For a detailed discussion of the admissibility requirements under the Optional Protocol see Tyagi, above n 2, 397 and n. See also for the early evolution of admissibility requirements: R Higgins, ‘Admissibility under the Optional Protocol to the International Covenant on Civil and Political Rights’ (1992) Canadian Human Rights Yearbook, 57. 116 This percentage is calculated on the basis of data produced by the Human Rights Committee in its 2019 report, indicating that 1,511 views had been adopted since 1977, compared to 723 inadmissibility decisions. This percentage does not take into account the 470 discontinued or withdrawn communications. See. Report 2019, A/​ 74/​40. 117 L.E.S.K. v The Netherlands, decision adopted on 21 July 1992, comm 381/​1989, § 5.3; Cridge v Canada, decision adopted on 27 March 2009, comm 1529/​2006. 118 V.M.R.B. v Canada, decision adopted on 18 July 1988, comm 236/​1987. 119 S.E. v Argentina, decision adopted on 26 March 1988, comm 275/​1988. 120 Kly v Canada, decision adopted on 27 March 2009, comm 1576/​2007. 121 W.B.E. v The Netherlands, decision adopted on 23 October 1990, comm 432/​1990.

360  Ludovic Hennebel either civil or criminal proceedings;122 the applicability of Article 24, protecting the rights of children, to an adult;123 or the right to appeal in civil matters.124 Moreover, the right to self-​determination (Article 1 of the Covenant) cannot be addressed by the Committee under the Optional Protocol procedure.125 Consequently, indigenous peoples’ or national minorities’ claims should preferably invoke Article 27 which provides protection for the rights of minorities. However, this is not the same thing as dealing with the right of self-​determination per se, as it individualizes what is typically considered to be a group right. Overall, despite these normative limitations, the Committee has interpreted broadly the autonomous right to non-​discrimination enshrined in Article 26 of the Covenant, with the result of extending indirectly its competence ratione materiae to consider communications claiming in the prism of the non-​discrimination clause rights such as the equal enjoyment right to property,126 the right to conscientious objection,127 or the right to social benefits.128 The Committee is competent ratione loci for violations of the rights of individuals who are subject to the jurisdiction of the state targeted by the complaint. The jurisprudence dealing with this type of issue mainly concerns situations in which a state denies the application of the Covenant to non-​citizens129 or, more frequently, cases related to extradition or deportation of an individual facing ill-​treatment or capital punishment in the state to which he is being extradited or deported.130 The States parties must respect the rights of ‘anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party’. Non-​citizens, including refugees, asylum seekers, migrants and other persons ‘who may find themselves in the territory or subject to the jurisdiction of the State Party’ must enjoy their rights provided under the Covenant. This principle also applies to those within the power or effective control of the forces of a State party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-​keeping or peace-​ enforcement operation’.131

122 Weerawansa v Sri Lanka, views adopted on 17 March 2009, comm 1406/​2005; Kavanagh v Ireland, views adopted on 16 July 2001, comm 818/​1998. 123 Chen v The Netherlands, decision adopted on 26 July 2010, comm 1609/​2007. 124 I.P. v Finland, decision adopted on 26 July 1993, comm 450/​1991. 125 Kitok v Sweden, views adopted on 27 July 1988, comm 197/​1986, § 6.3. 126 Zelaya Blanco v Nicaragua, views adopted on 20 July 1994, comm 328/​1988. 127 Jarvinen v Finland, views adopted on 25 July 1990, comm 295/​1988, § 6.2. Later, the Committee considered that the right of conscientious objection can be derived directly from Article 18 of the Covenant. See eg General Comment 22, CCPR/​C/​21/​Rev.1/​Add.4,  (§11). 128 Broeks v The Netherlands, views adopted on 9 April 1987, comm 172/​1984; Blom v Sweden, views adopted on 4 April 1988, comm 191/​1985; Cecilia Derksen v The Netherlands, views adopted on 1 April 2004, comm 976/​2001. 129 See for example Mika Miha v Equatorial Guinea, views adopted on 8 July 1994, comm 414/​1990, § 5.1. 130 General Comment 31, CCPR/​C/​21/​Rev.1/​Add.13, § 12. See for instance: C. v Australia, views adopted on 28 October 2002, comm 900/​1999 (in that case ‘the Committee considers that deportation of the author to a country where it is unlikely that he would receive the treatment necessary for the illness caused, in whole or in part, because of the State party’s violation of the author’s rights would amount to a violation of article 7 of the Covenant’). See also: Hicks v Australia, views adopted on 19 February 2016, comm 2005/​2010. 131 General Comment 31, CCPR/​C/​21/​Rev.1/​Add.13, § 10. See, for an interesting case on that matter, Munaf v Romania, views adopted on 30 July 2009, comm 1539/​2006.

The Human Rights Committee  361 The competence ratione personae covers two aspects. First, the communication must concern a state that has ratified both the Covenant and the Optional Protocol. This means that the communication must invoke a violation ‘imputable’ to the state.132 All branches of government (executive, legislative, and judicial) and other public or governmental authorities at whatever level—​national, regional or local—​are in a position to engage the responsibility of the State party.133 Moreover, the Committee considers that States parties have the positive obligation to protect individuals, not only against state’s agents, ‘but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities’. In some circumstances violations may be the ‘result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities’.134 Second, the communication must be brought by an individual who alleges him or herself to be victim of a violation of the Covenant, who is ‘actually and personally affected’ or suffering an ‘actual grievance’, to be qualified as a victim under the Optional Protocol procedure.135 In other words, the Committee does not consider hypothetical violations.136 Moreover, the victim must be a human being. Communications invoking the violation of rights and liberties to the detriment of legal entities, such as corporations or an organization, or of groups would be declared inadmissible by the Committee because they cannot be victims under the Optional Protocol and therefore do not have standing under the Optional Protocol procedure.137 The Committee has stated, however, in relation to indigenous communities’ claims, that ‘there is . . . no objection to a group of individuals, who claim to be similarly affected, collectively to submit a communication about alleged breaches of their rights’.138 To avoid being inadmissible for lack of standing, the communication should be submitted personally by the victim or by a representative of the victim.139 The Committee accepts communications brought on behalf of the alleged victim when it appears that the victim is not

132 See Alzery v Sweden, views adopted on 25 October 2006, comm 1416/​2005, § 11.6 (considering that ‘The Committee notes that, at a minimum, a State party is responsible for acts of foreign officials exercising acts of sovereign authority on its territory, if such acts are performed with the consent or acquiescence of the State party (see also Article 1 of the Convention against Torture). It follows that the acts complained of, which occurred in the course of the performance of official functions in the presence of the State party’s officials and within the State party’s jurisdiction, are properly imputable to the State party itself, in addition to the state on whose behalf the officials were engaged’.) See, also, Esposito v Spain, decision adopted on 20 March 2007, comm 1359/​2005. 133 CCPR/​General Comment 5, § 4. 134 General Comment 5, § 8. 135 See eg S. B. v Kirghizistan, decision adopted on 30 July 2009, comm 1877/​2009. 136 See eg Leo Hertzberg et al v Finland, views adopted on 2 April 1982, comm 61/​1979; Riley et al v Canada, 2002, decision adopted on 21 March 2002, comm 1048/​2002. 137 See eg Wallmann et al v Austria, views adopted on 1 April 2004, comm 1002/​2001; S.M. v Barbados, decision adopted on 31 March 1994, comm 502/​1992; Mariategui v Argentina, decision adopted on 26 July 2005, comm 1371/​2005. See also: Zamora v Venezuela, views adopted on 7 November 2017, comm 2203/​2012. 138 Kitok v Sweden, views adopted on 27 July 1988, comm 197/​1985, § 6.3. Indigenous peoples’ claims before the Committee raise issues under Articles 26 and 27. See for instance: Poma Poma v Peru, views adopted on 27 March 2009, comm 1457/​2006. 139 See eg X v Serbia, decision adopted on 26 March 2007, comm 1355/​2005; Madani v Algeria views adopted on 28 March 2007, comm 1172/​2003; Zvovkov et al v Belarus, views adopted on 17 October 2006, comm 1039/​2001.

362  Ludovic Hennebel able to submit it personally. Typically, this would be the case when the alleged victim is detained on death row.140 Violations that occurred prior to the entry into force of the Covenant and the Optional Protocol for the State party141 concerned would be declared inadmissible based on the limitations of the competence ratione temporis of the Committee. States parties cannot denounce the Covenant. However, any State party may denounce the Optional Protocol. Such denunciation takes effect three months after its notification. The Committee would be precluded rationae temporis from considering a communication alleging a violation of the Covenant after the effective date of the denunciation.142 Overall, in the case law of the Committee this standard condition of non-​retroactivity of human rights treaties raises mainly the question of the application of continuous violation.143 For the Committee a ‘continuing violation is to be interpreted as an affirmation, after the entry into force of the Optional Protocol, by act or by clear implication, of the previous violations of the State party’.144 For instance, in the case Sarma v Sri Lanka, although the removal and disappearance of the victim occurred before the entry into force of the Optional Protocol for the State party, the alleged violations ‘may have occurred or continued after the entry into force of the Optional Protocol’, and therefore the communication was deemed admissible.145 On the contrary, isolated acts of torture are not considered as continuing violation of the Covenant, and are therefore out of the scope of competence of the Committee if they occurred before the entry into force of the Optional Protocol.146 Additionally, the Committee must ascertain that the other conditions of admissibility set in the Optional Protocol are met. According to Article 3 of the Optional Protocol, the communication cannot be either anonymous or an abuse of the right of submission.147 The Protocol does not require any specific delay148 after the final domestic decision is taken or after the alleged violation occurred to submit a petition.149 However,

140 Pinckuk v Belarus, views adopted on 24 October 2014, 2165/​2012; Yuzepchuk v Belarus, views adopted on 24 October 2014, comm 1906/​2009. 141 See General Comment 26, §1 & 2. See, also, Girjadat Siewpersaud et al v Trinidad and Tobago, views adopted on 29 July 2004, comm 938/​2000; Pryce v Jamaica, views adopted on 15 March 2004, comm 793/​1998. 142 See General Comment 26, §1 & 2. See also: Girjadat Siewpersaud et al v Trinidad and Tobago, views adopted on 29 July 2004, comm 938/​2000; Hmeed v Libya, views adopted on 17 October 2014, comm 2046/​2011. 143 See eg, S.E. v Argentina, decision adopted on 26 March 1988, comm 275/​1988; R.A.V.N. et al v Argentina, decision adopted 26 March 1990, comm 343, 344, 345/​1988; Kurowski v Poland, 2003, decision adopted on 18 March 2003, comm 872/​1999. In some cases, the communication has been declared admissible despite the ratione temporis objection: Kouidis v Greece, views adopted on 28 March 2006, comm 1070/​2002; Nallaratnam Singarasa v Sri Lanka, views adopted on 21 July 2004, comm 1033/​2001. 144 E. and A.K. v Hungary, decision adopted on 7 April 1994, comm 520/​1992, §6.4. See also: Sarma v Sri Lanka, views adopted on 16 July 2003, comm 950/​2000, §6.2. See, for controversial cases: Yurich v Chile, 2 November 2005, comm 1078/​2002; Cifuentes Elgueta v Chile, decision adopted on 28 July 2009, comm 1536/​2006. 145 Sarma v Sri Lanka, views adopted on 16 July 2003, comm 950/​2000. 146 Huseynov v Azerbaijan, decision adopted on 21 July 2014, comm 2042/​2011 [inadmissible ratione temporis]. 147 For an application of the abuse of the right of submission, see for example Conde v Spain, decision adopted on 1 April 2008, comm 1527/​2006. 148 However, to clarify a controversial jurisprudence on the matter, since 2011, the Rules of Procedure (Article 99 c Rules of Procedure) has stated that ‘. . . a communication may constitute an abuse of the right of submission when it is submitted after 5 years from the exhaustion of domestic remedies by the author of the communication, or, where applicable, after 3 years from the conclusion of another procedure of international investigation or settlement, unless there are reasons justifying the delay taking into account all the circumstances of the communication’. 149 See for example Brychta v Czech Republic, decision adopted on 27 October 2009, comm 1618/​2007.

The Human Rights Committee  363 a communication submitted after an excessive delay without reasonable justification can be considered as an ‘abuse of the right of submission’ and therefore inadmissible.150 The author of a communication does not have to demonstrate the violation at the admissibility stage. However, he must sufficiently substantiate his claims for the purposes of admissibility.151 A claim that is not sufficiently substantiated at this stage would be declared inadmissible as manifestly ill-​founded. For instance, a claim formulated in general terms alleging the lack of independence of the police in the investigation of the death of the author’s son, and that is not based on concrete facts and evidence has been declared inadmissible because of its lack of substantiation.152 Moreover, according to its constant jurisprudence, the Committee ‘is not a “fourth instance” [in the sense that it does not act as a court of appeal] competent to re-​evaluate findings of fact or to review the application of domestic legislation. It is generally for the appellate courts of States parties to the Covenant to evaluate the facts and the evidence in a particular case unless it can be ascertained that the proceedings before the domestic courts were clearly arbitrary or amounted to a denial of justice.’153 Consequently, communications seeking the re-​evaluation of domestic decisions are declared inadmissible as ‘manifestly ill-​ founded.154 For instance, if a domestic court found, based on evidence, someone guilty of a specific crime, the Committee is not competent to re-​evaluate the facts and evidence.155 It could however consider that in that particular case, due process guarantees were not respected, or that the decision was manifestly arbitrary. Article 5(2)a of the Optional Protocol requires the Committee to ascertain that ‘the same matter is not being examined under another procedure of international investigation or settlement’. This rule precludes the Committee from considering a communication only if the same matter is being considered simultaneously.156 However, the Committee considers admissible communications on the same matter previously dealt with by other human rights bodies,157 even if a decision on the merits was adopted158 150 Gobin v Mauritius, decision adopted on 16 July 2001, comm 787/​1997. See eg, Brown v Namibia, decision adopted on 23 July 2008, comm 1591/​2007. 151 N.G. v Uzbekistan, decision adopted on 30 October 2008, comm 1018/​2001. 152 Hickey v Australia, decision adopted on 21 July 2014, comm 1995/​2010 [lack of substantiation]. 153 G.A. van Meurs v The Netherlands, views adopted on 13 July 1990, comm 215/​1986; Arenz v Germany, decision adopted on 24 March 2004, comm 1138/​2002. 154 Smantser v Belarus, views adopted on 23 October 2008, comm 1178/​2003. 155 A.W.K. v New Zealand, decision adopted on 28 October 2014, comm 1998/​2010 [lack of substantiation]; H.S. v Australia, decision adopted on 30 March 2015, comm 2015/​2010 [lack of substantiation]. 156 L.E.S.K. v The Netherlands, decision adopted on 21 July 1992, comm 381/​1989; Al-​Rabassi v Libya, views adopted on 18 July 2014, comm 1860/​2009 [in this case, the UN Working Group on arbitrary detention—​a special procedure of the UN—​had found the detention of the victim arbitrary, before the submission of the case to the Committee. Therefore, the Committee considers that the complaint was admissible]. 157 This concerns individual petitions examined by other human rights intergovernmental bodies based on conventional mechanisms (eg European Court of Human Rights; Inter-​American Court and Commission; African Court of Human Rights; and other human rights treaty-​bodies of the UN). The Human Rights Committee does not recognize as a procedure of international investigation or settlement under Article 5(2)a, eg, the ECOSOC 1503 procedure; extra-​conventional procedures or mechanisms (eg, UNESCO procedure 104EX/​ 3.3 (Yuri Bandajewsky v Belarus, views adopted on 28 March 2006, comm 1100/​2002); UN Special Rapporteur’s investigations (Barboeram v Surinam, views adopted on 4 April 1985, comm 154/​1983); procedures established by a NGO (Barboeram v Surinam, views adopted on 4 April 1985, comm 154/​1983) complaints examined by the Asian Development Bank (Dahanayake et al v Sri Lanka, decision adopted on 25 July 2006, comm 1331/​2004), or by the Human Rights Council (S.I.D. et al v Bulgaria, decision adopted on 21 July 2014, comm 1926/​2010). 158 Wright v Jamaica, views adopted on 27 July 1992, comm 349/​1989, § 2.8; Hendricks v The Netherlands, views adopted on 27 July 1988, comm 201/​1985. To limit these successive claims, several European states have

364  Ludovic Hennebel or when the petition was declared inadmissible by the other organ.159 A  remaining ambiguity regarding this requirement was clarified in V.O.  v Norway in which the Committee stated that the phrase ‘the same matter’ is, ‘with regard to identical parties, to the complaints advanced and facts adduced in support of them’.160 Overall, the Committee interpreted the limitation of Article 5(2)a restrictively and considers that ‘the same matter concerns the same authors, the same facts and the same substantive rights’.161 Finally, Article 5(2)b of the Optional Protocol precludes the Committee from considering communications unless it has ascertained that the individual has exhausted all available domestic remedies with the exception of unreasonably prolonged ones. Indeed, remedies to be exhausted must be effective and available.162 For the Committee The purpose of article 5, paragraph 2(b), of the Optional Protocol is, inter alia, to direct possible victims of violations of the provisions of the Covenant to seek, in the first place, satisfaction from the competent State party authorities and, at the same time, to enable States parties to examine, on the basis of individual complaints, the implementation, within their territory and by their organs, of the provisions of the Covenant and, if necessary, remedy the violations occurring, before the Committee is seised of the matter.163

As a consequence, when exhausting domestic remedies, the author of the communication must have raised precisely the same allegations on the same matter as the one raised in his communication before the Committee.164 The author of the communication must specify the remedies that he has exhausted or demonstrate that they were not effective or available165 and ‘should show reasonable diligence in the pursuit of available domestic remedies’.166 The rule of exhaustion of domestic remedies has a key role in ensuring that disputes with states are not needlessly ‘internationalised’ and that states, who are primarily responsible for implementing human rights commitments, have an opportunity to correct any emerging rights violations.

formulated a reservation or an interpretative declaration aiming at barring the Committee from hearing a case that has been already examined by the European Court of Human Rights. See eg, Wallmann and al. v Austria, views adopted on 1 April 2004, comm 1002/​2001, § 9.4. 159 Deisl v Austria, views adopted on 27 July 2004, comm 1060/​2002, § 10.4. 160 V.O. v Norway, decision adopted on 17 July 1985, comm 168/​1984. 161 Wallmann and al. v Austria, views adopted on 1 April 2004, comm 1002/​2001, § 8.4. 162 Rodriguez Dominguez v Spain, decision adopted on 27 October 2009, comm 1471/​2006; Suils Ramonet v Spain, decision adopted on 27 October 2009, comm 1555/​2007. It is not enough for the applicant to argue that he had some doubts about the success of his request before the domestic institutions. See eg Faurisson v France, views adopted on 8 November 1996, comm 550/​1993, §6.2. 163 T.K. v France, decision adopted on 8 November 1989, comm 220/​1987, §8.3. 164 Chen v The Netherlands, decision adopted on 26 July 2010, comm 1609/​2007. 165 Grant v Jamaica, views adopted on 31 March 1994, comm 353/​1988. 166 Eustace Henry & Everald Douglas v Jamaica, views adopted on 25 July 1996, comm 571/​1994, § 6.3.

The Human Rights Committee  365 iv. Interim measures According to its Rules of Procedure (Article 94), the Committee—​through the Special Rapporteur on New Communications—​may inform the state targeted by an individual communication ‘whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation’. The notion of ‘irreparable damage’ is defined generally but the ‘essential criterion is indeed the irreversibility of the consequences, in the sense of the inability of the author to secure his rights should later be a finding of a violation of the Covenant on the merits’.167 The mechanism of interim measures may in certain cases serve to prevent the application of a death sentence168 or the expulsion or extradition of the alleged victim;169 to protect the rights of indigenous people;170 or in a freedom of expression case, the destruction of litigious paintings;171 or to suspend the application of a controversial draft amnesty law.172 The Committee considers that non-​compliance with interim measures is a breach of the Optional Protocol and of the principle of good faith.173 Although the legal status of the interim measures requests have been discussed and some states have challenged their binding character, their use by the Committee has been of great significance and represented a vital tool for the successful protection of human rights. v. Views, remedies, and follow-​up The Committee issues its ‘views’ (the French version uses the term ‘constatations’; and in Spanish ‘observaciones’) on the merits stating whether a violation of the Covenant occurred or not. Each member of the Committee has one vote, and decisions of the Committee, as a general rule, are made by a majority of the members present. According to its method of work, the Committee attempts to reach decisions by consensus before voting.174 Members of the Committee are entitled to file a separate opinion further explaining their position or disagreement with the majority. The views of the Committee have been described as ‘uninspiring documents’, frustrating ‘the reader because of their rigid structure and excessive information, [and because of] the disjunction between most of this information and the conclusions of the Committee, the terse statement of these conclusions, and the sheer lack of readability’.175 It is true that the heart of decisions on substance is often reduced to its simplest expression, so that even as views may appear long they are occasionally rather poor on the fundamentals. The views of the Committee present in the most neutral manner the factual positions and legal arguments of both parties before offering its own analysis. 167 Stewart v Canada, views adopted on 1 November 1996, comm 538/​1993, § 7.7. 168 Earl Pratt and Ivan Morgan v Jamaica, views adopted on 6 April 1989, comm 225/​1987. The Committee has issued requests in death penalty cases in over 200 cases. 169 Stewart v Canada, views adopted on 1 November 1996, comm 538/​1993, § 4.2. 170 See eg, Lansman et al v Finland, views adopted on 30 October 1996, comm 671/​1995. 171 Shin v Republic of Korea, views adopted on 16 March 2004, comm 926/​2000. 172 Boucherf v Algeria, views adopted on 30 March 2006, comm 1196/​2003, § 1.2. 173 See eg: Weiss v Austria, views adopted on 3 April 2003, comm 1086/​2002, §§ 7.1 and 7.2. 174 Rules of Procedure 51 and 52 (and footnote to Rule 52). 175 Steiner, above n 2, 42. (See the proposals for amending the mechanism suggested by this author). Despite some improvements in recent years, the criticisms remain accurate and contributes to explain the laborious spreading of the case law of the Committee.

366  Ludovic Hennebel Following a syllogistic formal reasoning, and after exposing its understanding of the obligations of the state, the Committee applies the legal principles to the facts and concludes. Its own legal reasoning is sometimes difficult to identify and apprehend. This may be explained by the fact that the production of views is extremely challenging since the Committee needs to find a consensus for their adoption. Members with different backgrounds, legal cultures, using different methods of international law, must agree on the styles of the views and on the methods used to interpret the Covenant. The Committee considers that Article 2§3 of the Covenant requires that States parties ‘make reparation to individuals whose Covenant rights have been violated’.176 Such reparation ‘can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-​repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations’.177 Therefore, in its views, the Committee does recommend that the state adopt appropriate remedies, such as, inter alia, an adequate compensation;178 a public apology;179 the commutation of a death sentence;180 the immediate release of a victim;181 an impartial, effective and timely criminal investigation;182 the organization of a new trial;183 or the amendment or review of a law.184 In 2016, the Committee adopted guidelines on measures of reparation under the Optional Protocol aiming at harmonizing criteria and ensuring consistency.185 In that document, the Committee underlined the importance of the authors’ submissions indicating the types of reparations they are seeking and the replies of the state on these requests, while noting that it ‘will not be obliged or limited by it’. Giving examples of remedies, under the different types of reparation mentioned above, the Committee indicates clearly that it does not specify sums of money. In sum, the Committee recommends states to make reparation in giving some indications concerning the remedies, but it is up to the states concerned to decide, according to their domestic law, the specific reparation that should be implemented. The Committee’s views are not legally binding.186 However, the Committee considers that the States parties must give effect to them,187 which is supported by the obligation of States parties to act in a good faith and to cooperate with the Committee. It considers

176 General Comment, 31, §16. 177 Ibid, §16. 178 Pryce v Jamaica, views adopted on 15 March 2004, comm 793/​1998. See also the comments by M. Scheinin, individual opinion in Anthony McLeod v Jamaica, views adopted on 31 March 1998, comm 734/​1997. 179 Williams Lecraft v Spain, views adopted on 27 July 2009, comm1493/​2006. 180 Shaw v Jamaica, views adopted on 2 April 1998, comm 704/​1996. 181 Kurbanova v Tadjikistan, views adopted on 6 November 2003, comm 1096/​2002. 182 Pestano v The Philippines, views adopted on 23 March 2010, comm 1619/​2007. 183 Kodirov v Uzbekistan, views adopted on 20 October 2009, comm1284/​1004. 184 Sendic v Uruguay, views adopted on 28 October 1981, comm 63/​1979. 185 Guidelines on Measures of Reparation Under the Optional Protocol, 30 November 2016, CCPR/​C/​158. For an example of measures of reparations recommended by the Committee, see also Fulmati Nyaya v. Nepal, views adopted on 18 March 2019, comm 2556/​2015. 186 See F Pocar, ‘Legal Value of the Human Rights Committee’s views’ (1991–​1992) Canadian Human Rights Yearbook 119. 187 See for example Denzil v Barbados, decision adopted on 19 July 1994, comm 504/​1992, § 6.3.

The Human Rights Committee  367 that the views represent at least an ‘authoritative determination’ of the Covenant made by the organ that has the power to interpret the treaty.188 Since there is no follow-​up mechanism under the Optional Protocol, the Committee has progressively developed its own system to ensure implementation and it has created the mandate of the Special Rapporteur for follow-​up on views.189 That member takes responsibility for the dialogue with states on views, with a view to urging compliance and discussing elements that may be an obstacle for their implementation.190 The follow-​up replies are difficult to categorize and there is a lack of statistical information. An attempt to categorize the replies based on the level of cooperation of the states might suggest that replies can be classified as ‘satisfactory’ when the state displays its willingness to implement the views;191 ‘partial’ when the state displays a certain willingness to cooperate and to implement at least some aspects of the views;192 and ‘defiant’ when the state challenges the authority of the Committee, expresses its disagreement with the views and refuses to implement them.193 Finally, the attitude of the state can be ‘uncooperative’ when the state does not reply at all and refuses to cooperate.194 Given that there is no sanction—​except the publication in the annual report—​ targeting states refusing to comply, it seems that States that agree to comply do so by persuasion rather than by coercion. For that reason, the constructive dialogue with the Committee is an essential component of the follow-​up mechanism. Additionally, most states do not have specific mechanisms or legislation dealing with the implementation of views in their domestic legal order, which is another obstacle to compliance.195

(c)  The inter-​state communication mechanism The inter-​state complaints procedure is provided by the Covenant under Article 41; however, to date it has, like that of other committees, remained dormant.196 Unlike the reporting system, the procedure for inter-​state communications remains entirely optional as States parties to the Covenant must make a separate declaration at any time, recognizing the jurisdiction of the Committee regarding such communications. Only 49 States parties, including the Russian Federation and the United States of America, 188 General Comment, 33, §13. 189 For further developments: see Tyagi, above n 2, at 565 and n. 190 General Comment, 33, §16. 191 M.G. v Germany, views adopted on 23 July 2008, comm1482/​2006; Vojnovic v Croatia, views adopted on 30 March 2009, comm 1510/​2006; Lecraft v Spain, views adopted on 27 July 2009, comm 1493/​2006. 192 Kalamiotis v Greece, views adopted on 24 July 2008, comm 1486/​2006; Sharma v Nepal, views adopted on 28 October 2008, comm 1469/​2006. 193 Smantser v Belarus, views adopted on 23 October 2008, comm 1178/​2003; Korneenko and Milinkevich v Belarus, views adopted on 20 March 2009, comm 1553/​2007; Dauphin v Canada, views adopted on 28 July 2009, comm 1792/​2008. 194 Medjoune v Algeria, views adopted on 14 July 2006, comm 1297/​2004; Alba Cabriada v Spain, views adopted on 1 November 2004, comm 1101/​2002; Sanjeevan v Sri Lanka, views adopted on 8 July 2008, comm 1436/​2005. 195 General Comment, 33, §20. 196 For a more detailed account of the inter-​state complaints procedure refer to: Robertson, ‘The Implementation System:  International Measures’ in L Henkin (ed), The International Bill of Rights:  The Covenant on Civil and Political Rights (New York: Columbia University Press, 1981) 351.

368  Ludovic Hennebel have made such a declaration so far. Based on the principle of reciprocity, the communication must claim that another State party, that has also made such a declaration under Article 41, ‘is not fulfilling its obligations’ under the Covenant.197 This suggests that States parties to the Covenant have the erga omnes obligation to ensure and promote the respect of the Covenant by all parties,198 meaning that any state having recognized the inter-​state procedure could bring a complaint even if it was not directly impacted by the human rights violations. Echoing the ‘responsibility to protect’, provided in the Outcome Document of the 2005 United Nations Summit Meeting of world leaders, the ‘collective inter-​state complaint would be appropriate in case of gross and continued violation of Covenant rights in any State party which has given the requisite declaration under article 41’.199 The procedure is well detailed in the Covenant (Article 41)  and in the Rules of Procedure.200 First, the complaining state must try to settle the dispute with the state concerned. Second, when ‘the matter is not adjusted to the satisfaction of both States parties concerned within six months’, either party may refer the dispute to the Committee, which proceeds to make its good office available to the States parties involved to seek a resolution to the dispute. The procedure before the Committee, including the admissibility, fact-​finding and mediation steps, is confidential. Within twelve months of the notification of the complaint, the Committee must issue a report. Third, if the matter is not resolved to the satisfaction of both States parties, according to Article 42 of the ICCPR, the Committee may appoint an ad hoc Conciliation Commission with prior consent of the states concerned, and ‘with a view to an amicable solution of the matter on the basis of respect for the present Covenant’.201 It can be seen as a ‘pure mediation or conciliation procedure without the possibility of a final decision in the event that the efforts to reach conciliation fail’.202 States are reluctant to use such a mechanism to solve or denounce human rights disputes that may compromise diplomatic relations with other governments.203 Although this view no longer seems to be compatible with an emerging international legal and political order that has provided several examples of humanitarian-​driven state intervention as well as human-​rights-​based inter-​state legal disputes, states seem to favour classic diplomatic or judicial dispute resolution rather than such inter-​states complaints mechanism before human rights bodies. Although some States parties to the European Convention on Human Rights204 and to the American Convention on 197 ICCPR, Article 41. 198 General Comment, 31, § 2. 199 Moller and de Zayas, above n 5, 9. 200 See Rules of Procedure, CCPR/​C/​3/​Rev.11, 78–​87. 201 ICCPR, Article 42. 202 Nowak, above n 4, at 759. 203 Opsalh, above n 2, 420. 204 As of June 2019, there have been twenty-​four inter-​state cases alleging violations of the European Convention of Human Rights before the former European Commission of Human Rights or the European Court of Human Rights. See for instance:  Greece v the United Kingdom (1956/​1957); Austria v Italy (1961); Denmark, Norway, Sweden and the Netherlands v Greece (1967/​70); Ireland v the United Kingdom (1971/​1972); Cyprus v Turkey (1974/​ 75/​77); Denmark, France, the Netherlands, Norway, and Sweden v Turkey (1982); Georgia v Russian Federation (2007). So far, the European Court has ruled several judgments based on inter-​States complaints: ECHR, Case of Ireland v The United Kingdom, 18 January 1978 (revised 20 March 2018); ECHR (Grand Chamber), Case of

The Human Rights Committee  369 Human Rights205 have shown a limited interest in the procedure, the inter-​states communication procedure of the Covenant has not met the expectations of a genuine collective protection of human rights. The more recent work and statements regarding the ‘responsibility to protect’ could conceivably reenergize the dormant mechanism. However, even when states decide to initiate a complaint regarding human rights violations committed by another state, they may prefer to settle the dispute before the International Court of Justice, and not before the treaty bodies. For instance, Belgium could have lodged an inter-​state complaint before the Committee against torture in the case Questions relating to the obligation to prosecute or extradite, but chose to file an application before the International Court of Justice to denounce the violation of the 1984 Convention against torture.206 Georgia also filed an application before the International Court of Justice to denounce the violation of 1965 Convention on the Elimination of All Forms of Racial Discrimination, instead of opting for an inter-​state procedure before the Committee on the Elimination of Racial Discrimination.207

(d)  General comments The Committee has the power to draft and adopt ‘general comments’ summarizing the interpretation of the content of the Covenant based on the experience of the Committee regarding state reports and the concluding observations as well as some aspects of its jurisprudence adopted under the Optional Protocol when relevant.208 Although the framework of the general comments adopted in 1980 was the result of a difficult compromise, nowadays the comments are truly valuable authoritative interpretations of the Covenant typically adopted by consensus by all members.209 Their nature can be described either as non-​binding doctrine serving as guidelines for the Committee and the States parties or as a body of jurisprudence of interpretations with ‘authoritative and universal character’.210 Given that other international bodies now often quote these Cyprus v Turkey, 10 May 2001; ECHR, Denmark v Turkey, 5 April 2000; ECHR (Grand Chamber), Georgia v Russian Federation (I), 03 July 2014. See also the pending requests (as of June 2019) Slovenia v Croatia; Georgia v Russia; and Ukraine v Russia. 205 See: Inter-​American Commission on Human Rights, Nicaragua v Costa Rica, decision of inadmissibility 8 March 2007, inter-​state complaint n°01/​06, Report n°11/​07; Inter-​American Commission on Human Rights, Ecuador v Colombia, decision of admissibility 21 October 2010, inter-​state complaint P1-​02, Report n°112/​10. 206 Questions relating to the obligation to prosecute or extradite (Belgium v Senegal) (Judgement), ICJ Reports 2012, 422. 207 ICJ, Case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Judgement of 1 April 2011, ICJ Reports 2011, at 70. 208 ICCPR, Article 40 § 4. 209 With the exception of General Comment 32, which was adopted by a majority vote as a result of a dissenting perspective concerning a limitation on the trial of civilians by military or special court. Such trial must be necessary and justified by objective reasons. This was perceived by the dissenting member as an intolerable limitation of the power of the States to administer justice. See Tyagi, above n 2, 284. Some of the General Comments have been quite controversial, such as the General Comment 24 (on reservations). See for further developments: K Korkelia, ‘New Challenges to the Regime of Reservations under the International Covenant on Civil and Political Rights’ (2002) 13 European Journal of International Law 437–​77. 210 Nowak, above n 4, 749.

370  Ludovic Hennebel comments,211 it is tempting to believe that they form some sort of persuasive body of jurisprudence. The production of the general comments requires the Committee to play the role of a ‘quasi-​legislative body’.212 States parties can submit their observations on the Committee’s general comments under Article 40 § 5, although they have made little use of that prerogative.213 Moreover, the draft of general comments is sent to other human rights treaty bodies, intergovernmental institutions as well as NGOs for observations.214 In some respect, general comments may be assimilated to a sort of ‘advisory opinion’ adopted by the Committee motu proprio. Indeed, the Committee may choose the issues to be addressed in a general comment, following suggestions made by individual members. The whole process of producing the General Comments has been criticized for being opaque, slow, and single-​handed. Recommendations for improvement have included:  engaging States parties, NGOs and other human rights institutions more systematically and deeply in the process; elaborating guidelines for the formulation of the general comments; using the relevant work of the other human rights institutions and treaty bodies more systematically.215 In recent years, States parties and NGOs have been more involved in the procedure, which has become more open over time. Overall, the General Comments of the Human Rights Committee have been a valuable jurisprudential tool. So far,216 the Committee has adopted thirty-​six general comments.217 They appear to be a sort of restatement218 of the Covenant offering commentary on an article by article basis. They focus mainly on the interpretation of certain rights and liberties, such as, equal enjoyment of rights by men and women (n°4 replaced by n°28); right to life (n°6 and n°14, replaced by n°36); prohibition of torture and other ill-​treatments (n°7 and 20); right to liberty and security (n°8); humane treatment of persons deprived of their liberty (n°9 replaced by n° 21); freedom of opinion (n°10); prohibition of propaganda for war and inciting national, racial and religious hatred (n°11); right to self-​determination (n°12); administration of justice (n°13); right to privacy (n°16); rights of the child (n°17); non-​discrimination (n°18); protection of the family (n°19); freedom of thought, conscience and religion (n°22); rights of minorities (n°23); participation in public affairs and the right to vote (n°25); freedom of movement (n°27); freedoms of opinion and expression (n°34); and liberty and security on persons (n°35). Other comments concern specific issues such as the position of aliens 211 See for instance: Eur. Ct. H.R., GC, Perincek v Switzerland, 15 October 2015, req. n°27510/​08, §71: referring to General Comment 34 on Article 19 of the ICCPR; Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Judgment, Merits) 2010 ICGJ 428, 639, para 66: referring to General Comment 15 regarding the position of aliens under the Covenant; 212 Opsahl, above n 2, 415. 213 See for example the observations made by Congo on General Comment 12 (regarding self-​determination) in 1985; by Madagascar on General Comment 13 (regarding fair trial) in 1985 (UN Doc CCPR/​C/​40, 18 June 1985); by France, the United Kingdom and the United States on General Comment 24 (regarding reservations) (1995 Report, at 126–​34; 1996 Report, at 104–​6). For further details, see: Nowak, above n 4, 751; Tyagi, above n 2, 296. 214 See for ­example 2002 Report, § 37. 215 See for the critiques and the recommendations (and ref. cited): Tyagi, above n 2, 294–​5. 216 As of November 2019. 217 The Human Rights Committee decided at its 124th Session (8 October–​2 November 2018) to draft a General Comment on Article 21 regarding the right of peaceful assembly. 218 Moller and de Zayas, above n 5, 50.

The Human Rights Committee  371 under the Covenant (n°15); the right to equality before courts and tribunals and to a fair trial (n°32); the reporting obligations of states under the Covenant (n°1 replaced by n°30, n°2); the implementation of the Covenant at the national level (n°3); the derogations (n°5 replaced by n°29); reservations ((n°24); the continuity of obligations (n°26); the nature of the general legal obligation imposed on States parties (n°31), and; the obligations of the States parties to the Optional Protocol (n°33). When a general comment is out-​of-​date, the Committee tends to replace it with a new comment showing that its interpretation of the Covenant evolves.

10.3  The Legal Regime of the ICCPR The Committee interprets the International Covenant on Civil and Political Rights whenever it exercises one of its functions. First, when examining reports, the Committee adopts ‘concluding observations’ which require interpretation of the Covenant. Second, the Committee may use the ‘general comments’ to summarize its interpretation of certain rights or issues based on its experience in considering the states reports and on its individual case law. Third, the Committee has produced a significant body of jurisprudence in the exercise of its function under the Optional Protocol. Overall, the Committee had, through its functions, interpreted all the substantial rights and freedoms protected by the ICCPR. The International Court of Justice has acknowledged the authority of the interpretations made by the Committee in considering that ‘it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty’, although it considers that it is not obliged to model its own interpretation on that of the Committee.219 The civil and political rights of the Covenant are interrelated and form together what is referred to as a ‘system’. In its general comment 24 related to reservations, the Committee summed up its conception: ‘In an instrument which articulates very many civil and political rights, each of the many articles, and indeed their interplay, secures the objectives of the Covenant’.220 The Committee constructs the Covenant, through interpretations, as a sort of spider’s web connecting the rights and freedoms of the Covenant together. Recalling the ‘objective’ nature of human rights treaties, which are concluded for the benefit of human beings and not to secure reciprocal obligations binding States parties,221 the Committee adopts a systemic conception of the rights and freedoms protected by the Covenant itself. Concerning the object and purpose of the Covenant, the Committee considers that it is not only ‘to create legally binding standards for human rights by defining certain civil and political rights’ but also to place ‘them in a framework of obligations which are legally binding for those states



219

Ahmadou Sadio Diallo [2010] ICGJ 428, 639, para 66. General Comment, 24, § 7. 221 Ibid, §§ 7 and 8. 220

372  Ludovic Hennebel which ratify; and to provide an efficacious supervisory machinery for the obligations undertaken’.222 Three particular aspects of the legal regime of the ICCPR as determined by the Committee deserves special attention: the structure of the obligations (1); the regime of reservations to the ICCPR (2); and the derogatory regime applicable in exceptional circumstances (3).

(a)  The structure of states’ obligations The ICCPR is considered by the Committee as a holistic and coherent system for the protection of civil and political rights. The obligations provided under Article 2 form the ‘spinal column’ of the Covenant. Indeed, Article 2 provides obligations incurred by the States parties towards individuals. The Committee qualified these obligations as erga omnes: ‘every State Party has a legal interest in the performance by every other State Party of its obligations’.223 The three interrelated core obligations of the Covenant are: the obligation to respect and ensure the human rights of the Covenant (Article 2 § 1); the obligation to take the necessary steps to adopt laws and measures to give effect to these rights (Article 2 § 2); and the obligation to ensure that any person whose rights protected by the Covenant has been violated, has an effective remedy (Article 2 § 3), which contributes to explain why reservations to Article 2 would be incompatible with the Covenant.224 In line with this comprehensive set of obligations to respect, ensure, fulfil and redress, the Covenant potentially spreads throughout the whole domestic order at the various levels of power. The obligation to respect and ensure human rights has both a negative—​states must refrain from violating human rights—​and a positive dimension—​states must adopt the necessary measures to ensure the protection of rights and liberties.225 Although the obligation to respect and ensure does not have, as such, horizontal effect, the Committee recalls that states have to protect individuals not only against the violations committed by state agents, ‘but also against acts committed by private individuals or entities’.226 Moreover, in certain cases, violations of the Covenant may be the result of the inaction of a state that failed to take the measures to ‘prevent, punish, investigate or redress the harm’.227 All individuals on the territory of a State party or under its jurisdiction must enjoy the protection of their human rights, even in situations of armed conflict, when they are ‘within the power or effective control of that State party’.228 Moreover, to give effect to the human rights provided under the Covenant in the domestic orders, States parties have the obligation to

222

Ibid, § 7. General Comment, 31, § 2. 224 General Comment, 24. 225 General Comment, 31, § 6. 226 Ibid, § 8. 227 Ibid, § 8. 228 Ibid, §§ 11–​12. 223

The Human Rights Committee  373 take the necessary steps—​including legislative, executive, judicial and administrative measures—​as soon as they ratify the treaty.229 However, States parties do not have the obligation to incorporate the Covenant into their domestic law, even if the Committee invites them to do so, especially in its concluding observations.230 Finally, States parties have the obligation to ensure an effective remedy and redress to the victims of human rights violations. This requires establishing appropriate judicial and administrative venues as well as providing reparation.231

(b) Reservations In the absence of specific provision in the Covenant dealing with reservations, general international law should apply. Reservations are therefore authorized, but the Committee has affirmed its exclusive competence to determine their validity and compatibility with the object and purpose of the Covenant and the Optional Protocol. In affirming such a competence, the Committee has asserted the specificity of the ICCPR as a human treaty and considered that the regime applicable under the Vienna Convention on the Law of Treaties—​empowering only States parties to decide on this matter—​is ‘inappropriate to address the problem of reservations to human rights treaties. Such treaties, and the Covenant specifically, are not a web of inter-​ state exchanges of mutual obligations. They concern the endowment of individuals with rights’.232 Thanks to the power to determine the validity of the reservations, the Committee is in a position to protect the Covenant against reservations that may affect its purpose and object. Examples include reservations that violate peremptory norms, or reservations to provisions that represent customary international law. For the Committee: [A]‌State may not reserve the right to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought, conscience and religion, to presume a person guilty unless he proves his innocence, to execute pregnant women or children, to permit the advocacy of national, racial or religious hatred, to deny to persons of marriageable age the right to marry, or to deny to minorities the right to enjoy their own culture, profess their own religion, or use their own language. And while reservations to particular clauses of article 14 may be acceptable, a general reservation to the right to a fair trial would not be.233 229 Ibid, 31, §13. 230 Ibid, §13. 231 Ibid, §§15–​16. 232 See General Comment, 24, § 17. The position of the Committee was challenged by the International Law Commission. International Law Commission, ‘Preliminary Conclusions regarding reservations to normative multilateral human rights treaties including human rights treaties’, in A/​52/​10, §157. 233 General Comment, 24, §8. See also: Polay Campos v Peru, views adopted on 6 November 1997, comm 577/​ 1994.

374  Ludovic Hennebel Additionally, the Committee regularly recommends, in its concluding observations under the state reporting mechanism, for states to withdraw their reservations.234

(c) Derogation ‘In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed’, States parties may derogate from their obligations under the ICCPR (Article 4 of the ICCPR). The use of this procedure is not unusual.235 Derogation must respect certain conditions; either formal—​such as informing the other States parties through the Secretary General of the UN of the provisions suspended and on the date on which the derogation ends—​or substantial—​the situation must ‘threatens the life of the nation’. The measures adopted must be strictly necessary to face the danger, and the measures must be compatible with the state’s obligations under international law, and not discriminatory. Moreover, certain rights listed under Article 4 § 2 of the ICCPR—​the right to life, the prohibition of torture and ill-​treatments, the prohibition of slavery and servitude, the prohibition of prison for debt, the principle nullum crimen, nulla poena sine lege, the right to recognition as a person before the law, and the freedom of thought, conscience and religion—​cannot be derogated from even in situation of emergency. Additionally, the Committee considers that other rights and liberties, such as the right to human treatment of detainees (Article 10 of the ICCPR) or certain procedural guarantees and rights (Article 14 of the ICCPR), although they are not formally listed under Article 4 § 2 of the ICCPR, cannot be suspended even in situation of emergency.236

10.4  The interpretation of the ICCPR by the Human Rights Committee The Human Rights Committee is in a position to influence substantially human rights worldwide. The Committee does indeed have the power to determine the sense and scope of human rights norms that may impact 173 States parties. For the Committee, building a universal interpretation of the Covenant, and assuming its role as a global player in the field of human rights is rather challenging (1). Over the years, the Committee has been able, however, to develop and construct a solid case law covering a wide range of issues related to civil and political rights (2).

234 For instance, see: Concluding observations regarding Finland (A/​69/​40, vol. I, p. 52); Mauritania (A/​69/​40, vol. I, p. 70); United States of America (A/​69/​40, vol. I, p. 130). 235 In its annual 2019 report, the Committee indicated that during the period covered by that report, the following states used the derogation procedure: Ecuador, Turkey, and Peru. A/​74/​40. 236 General Comment, 29.

The Human Rights Committee  375

(a)  The Challenge of a Global Interpretation of the ICCPR In practice, it is rather challenging for the Committee to develop a jurisprudence that can meet the cultural and legal pluralism of all the states’ over which it has jurisdiction. Nonetheless, the Committee considers that the Covenant ‘should be interpreted as a living instrument and the rights protected under it should be applied in context and in the light of present–​day conditions’.237 The Committee must interpret the Covenant consistent with its universal application. Since the domestic laws and practices regarding human rights may be substantially different from one State party to another, it must define a universal common language of human rights, keeping in mind the cultural differences and specificities of various countries.238 This is an extremely challenging task. It must also strive to avoid the fragmentation of the Covenant in limiting the margin of appreciation of the States parties. Indeed, the Committee does not explicitly use this mechanism.239 Yet the Committee cannot build its jurisprudence on a broad range of shared values and principles the way the European Court of Human Rights does when it refers to the European legal order. It must therefore be extremely cautious when dealing with ethical and societal issues. The Human Rights Committee has the mandate to interpret the International Covenant on Civil and Political Rights, and exclusively the Covenant (and its optional Protocols). To determine the rights and liberties of the Covenant, the Committee refers to the ‘ordinary meaning’ of the treaty, and to some extent to the travaux préparatoires of the Covenant.240 It does not refer nor apply other international human rights treaties or customary international law.241 It has no competence to consider claims alleging violations of other treaties than the International Covenant on Civil and Political Rights and its two Optional Protocols, and therefore declares claims alleging the violation of

237 Judge v Canada, views adopted on 5 August 2003, comm 829/​1998, § 10.3. 238 For instance, in its concluding observations, the Committee addressed sensitive issues such as eg on polygamy: Concluding observations, Uzbekistan, CCPR/​C/​UZB/​CO/​3, 7 April 2010; on the different ages for marriage between women and men, on genital mutilations, and on the criminalisation of homosexuality: Concluding observations, Cameroon, CCPR/​C/​CMR/​CO/​4, 4 August 2010; on mutilation and killings of persons with albinism: Concluding observations, Tanzania, CCPR/​C/​TZA/​CO/​4, 6 August 2009. 239 Except in one case: Hertzberg et al v Finland, views adopted on 2 April 1982, comm 61/​1979 (R.14/​61), § 10.3, where the Committee considered that the state could censor television or radio programmes dealing with homosexuality, seen as encouraging homosexual behaviour by the local authorities. To justify its view, the Committee stated that ‘. . . public morals differ widely’ and that ‘there is no universally applicable common standard. Consequently, in this respect, a certain margin of discretion must be accorded to the responsible national authorities’. It seems that the Committee has changed its position regarding the scope of ‘public morals’ since that decision. In its general comment 22, it states that ‘the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations . . .for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition’. In its general comment 34 (§32), the Committee recalls that understanding of ‘public morals’ to conclude that the limitation of the freedom of opinion and expression ‘must be understood in the light of universality of human rights and the principle of non-​discrimination’. 240 See for example J.B. v Canada, decision adopted on 18 July 1986, comm 118/​1982. 241 See the analysis and the examples provided by D. Weissbrodt, ‘The Role of the Human Rights Committee in Interpreting and Developing Humanitarian Law’ (2010) 31 University of Pennsylvania Journal of International Law 1185. See for a claim invoking customary international law: A. v Australia, views adopted on 3 April 1997, comm 560/​1993, § 9.3.

376  Ludovic Hennebel other treaties inadmissible.242 Moreover, the Committee tends to not even interpret the Covenant in light of other instruments and considers that ‘each international treaty, including the International Covenant on Civil and Political Rights, has a life of its own and must be interpreted in a fair and just manner, if so provided, by the body entrusted with the monitoring of its provisions’.243 Even when the author of the communication or the State party refers to other international instruments to support their argumentation, the Committee does not discuss or incorporate in its own view the other international standards.244 It is true that in some exceptional cases that appear to have been more frequent in the last decade, the Committee has begun citing other international instruments.245 In its General Comments the Committee has also, on rare occurrences, cited or used other international instruments such as the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women before adopting its own combined definition of the term ‘discrimination’ or referred to other rules of international law.246 However, such citations remain the exception and the citation or explicit use of other sources of international law remains controversial and somehow inconsistent. Similarly, the Human Rights Committee seems to be reluctant to cite other case laws—​eg, from the regional human rights bodies or other UN treaty bodies.247 Indeed, despite some notable exceptions in recent and landmark decisions, the Committee gives the impression that it is hermetic to transnational judicial dialogue, and that its posture is ‘jurisdictionally isolationist’.248 Despite the rich jurisprudence of the inter-​American, African, and European human rights, bodies that are often confronted with similar issues, sometimes regarding the same states, the Committee chooses not to refer to this ‘other’ jurisprudence in its reasoning.249 In some of the cases where such references can be found, clear opposition 242 See for example Blom v Sweden, views adopted on 4 April 1988, comm 191/​1985 (the author of the communication invoked, in addition to the violation of the Covenant, the violation of the 1960 UNESCO Convention against Discrimination in Education and of the International Covenant on Economic, Social and Cultural Rights); Cridge v Canada, decision adopted on 27 March 2009, comm 1529/​2006 (the author of the communication invoked the violation of the Article 17 (right to property) of the Universal Declaration of Human Rights). 243 J.B. v Canada, decision adopted on 18 July 1986, comm 118/​1982, § 6.3. 244 See for example: Gunaratna v Sri Lanka, views adopted on 17 March 2009, comm 1432/​2005; Yevdokimov and Rezanov v Russian federation, views adopted on 21 March 2011, comm 1410/​2005, § 7.5. 245 See eg Mukong v Cameroon, views adopted on 21 July 1994, comm 458/​1991, § 9.3 (citing the UN Standard Minimum Rules for the Treatment of Prisoners); Shaw v Jamaica, views adopted on 2 April 1998, comm 704/​1996, § 5.5 (citing the UN Economic and Social Council Resolution 1996/​15 on Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty). See other examples in Weissbrodt, above n 415, 1197. 246 General Comment 31, CCPR/​C/​21/​Rev.1/​Add.13, § 11 (referring to ‘more specific rules of international humanitarian law’). 247 Contrary to the European Court of Human Rights, the Inter-​American Court and Commission of Human Rights, and the African Commission on Human and People’s Rights. See eg Eur. Ct. H.R., Sejdic and Finci v Bosnia-​ Herzegovina (2009); Eur. Ct. H.R., Mamatkulow et al (2005); African Commission, Marcel Wetsh’okonda Koso v Democratic Republic of Congo (2008); Inter-​Am. Ct. H.R., Caso Bamaca Velasquez v Guatemala (2000). 248 See, for an outstanding example of the use of comparative regional case law in a landmark case: Cáceres v Paraguay, views adopted on 20 September 2019, comm 2751/​2016. See on the judicial dialogue, eg, Slaughter, ‘A Typology of Transjudicial Communication’ (1994) 29 University of Richmond Law Review. 99; Slaughter, ‘A Global Community of Courts’ (2003) 44 Harvard International Law Journal 191. 249 Contra: Cáceres v Paraguay, views adopted on 20 September 2019, comm 2751/​2016. In general, the parties often invoke other instruments and jurisprudence, and these references are mentioned in the decisions and views of the Committee under the section related to the arguments of the parties.

The Human Rights Committee  377 was expressed by dissenting members. For instance, in Larrañöaga v Philippines, the Committee considered that the imposition of the death sentence after the conclusion of proceedings that did not meet the requirements of fair trial (Article 14 of the Covenant) amounted to an inhuman treatment. In making such an innovative conclusion, the Committee referred in a footnote to the landmark case Öcalan v Turkey adopted by the European Court of Human Rights in 2005. This reference was considered inappropriate by a dissenting member, while another member criticized this ‘abrupt holding’ imported from the European Court of Human Rights.250 Reluctance to refer to the jurisprudence of other human rights bodies can be explained in part by a certain ideological conception of international law. The Committee may resist acknowledging or welcoming ‘cross-​fertilization’ of other human rights bodies in part because they adopt a more teleological, liberal and expansionist approach to the treaties they interpret.251 Having said that, there is no clear or general interpretative trend within the Committee. While some members are, as mentioned above, manifestly opposed to what could be perceived as ‘pollution’ by foreign and external texts or jurisprudences, others seem to be in favour of a true ‘globalist’ approach to international human rights law as a whole. One of the main arguments in favour of the isolationist posture is the need to preserve the universal understanding of the Covenant and to avoid direct African, European or Inter-​American imports, which rest on regional values such as the idea of a ‘European public order’.252 However, the isolationist posture is not limited to the jurisprudence of regional bodies and extends to the jurisprudence of other United Nations bodies. Indeed, the Committee only exceptionally refers to the other United Nations treaties and jurisprudence. Reluctance to refer to these other UN instruments and jurisprudences, which are part of the same international order of human rights protection is less understandable. It may be that it can be explained by the ‘positivist’ posture of the Committee regarding the interpretation of the Covenant. Using explicit references to other treaties or jurisprudences could give the impression that these references are binding and could be challenged by States parties to the Covenant that are not parties to other UN treaties. However, the argument remains unconvincing. The technique that consists in using foreign law is rather common nowadays for constitutional or other international judges. It does not imply that foreign law is binding on these judges; it merely means that the foreign jurisprudence or texts may have ‘persuasive authority’, so that ‘weight is accorded to them out of respect for their legitimacy, care and quality by judges worldwide engaged in a common enterprise of protecting human rights’.253

250 Larranaga v Philippines, views adopted on 24 July 2006, comm 1421/​2005. See the individual opinions by Ando and Wedgwood. 251 Conte and Burchill, above n 5, 11. 252 For an interesting instance of this more holistic approach, see Keller and Salvioli, in Cifuentes Elgueta v Chile, 1536/​2006 (2009). For an example of contradictory case law between the Human Rights Committee and the European Court of Human Rights on the wearing of religious symbols, see Sonia Yaker v France, views adopted on 17 July 2018, comm 2747/​2016. 253 Slaughter, ‘Judicial Globalisation’ (2000) 40 Virginia Journal International Law 1103, 1111; P Glenn, ‘Persuasive Authority’ (1987) 32 McGill Law Journal 261, 263.

378  Ludovic Hennebel

(b)  The Construction of the Committee’s Jurisprudence Although rather timid if compared to the inter-​American and the European human rights jurisprudence, the jurisprudence of the Committee evolves in a dynamic way, in most of the cases, to ensure a better protection of the rights and freedoms of the Covenant. While the Committee insists on the consistency and global coherence of its jurisprudence, it is free to ‘overrule’ its own prior jurisprudence when required.254 Overall, and despite the ‘isolationist’ posture of the Committee regarding other human rights organs, its jurisprudence is globally in line with the European and the Inter-​ American Courts’ case law. There is not enough space to sum up the entire jurisprudence here, but the case law concerning some issues in particular can serve to illustrate the work of the Committee and shed light on the challenges of monitoring a treaty such as the ICCPR. The Covenant, for example, does not prohibit the imposition of death penalty for the most serious crimes.255 Therefore the Committee cannot plead for a straightforward abolition policy, except of course for the eighty-​seven states that have ratified the 1989 Second Optional Protocol aiming at the abolition of death penalty. However, thanks to a dynamic interpretation of the Covenant, the Committee has imposed significant limitations on the application of death sentences in States parties. For example, the Committee considers that mandatory death sentences breach Article 6 of the Covenant and has expressed this view in a number of similar cases. Therefore, the imposition of the death penalty based solely upon the category of crime, without any consideration of the personal profile of the defendant or of the circumstances of the case entails, if carried out, an arbitrary deprivation of life in violation of Article 6§1.256 This jurisprudence overturned a prior less protective position of the Committee on that matter.257 Another example of a limitation on the imposition of the death penalty can be found in cases related to a death sentence resulting from an unfair trial in breach of Article 14 of the Covenant. In these cases, the violation of the guarantees protected under the fair trial in a death penalty case may entail the violation of Article 6§2 of the Covenant.258 Moreover, according to the jurisprudence of the Committee, it is not required for the death sentence to have been carried out to breach the Covenant. The sentencing per se violates Article 6. Therefore, the commutation of the death sentence to a prison sentence should not normally impact the views of the Committee.259 Despite some hesitations on that matter,260 globally, the jurisprudence according to which a death 254 Moller and de Zayas, above n 5, 521. 255 See C Chanet, ‘La peine de mort et le Pacte international sur les droits civils et politiques’ in N Ando (ed), above n 23,147. 256 Thompson v St Vincent and the Grenadines, views adopted on 18 October 2000, comm 806/​1998, § 8.2. See also: Mwamba v Zambia, views adopted on 10 March 2010, comm 1520/​2006. 257 Brown v Jamaica, views adopted on 23 March 1999, comm 775/​1997, § 6.14. 258 See eg Pavel Selyun v Belarus, views adopted on 6 November 2015, comm 2289/​2013, §7.7. 259 See eg Marshall v Jamaica, views adopted on 3 November 1998, comm 730/​1996; Conroy Levy v Jamaica, views adopted on 3 November 1998, comm 719/​1996. 260 Comp.: Kasimov v Uzbekistan, views adopted on 30 July 2009, comm 1378/​2005. See the individual opinion of Salvioli; Isaeva and Karimov v Uzbekistan, views adopted on 20 March 2009, comm 1163/​2003.

The Human Rights Committee  379 sentence resulting from unfair trial entails a violation of Article 6 of the Covenant remains subject to a rather evolving and dynamic interpretation. Finally, in order to be compatible with the Covenant, the methods of execution must meet the test of ‘least possible physical and mental suffering’. The methods that fail to meet this requirement may amount to a breach of Article 7 of the Covenant. For instance, the execution by gas asphyxiation261—​that may take over ten minutes and cause suffering and agony—​ amounts to a violation of the Covenant. Moreover, the Committee considers that the authorities have to treat the persons sentenced to death and their family with decency. Making someone sentenced to death believe that his sentence had been commuted, to inform him later that it was not, and sending him back to death row after two years without any explanation, amounts to a violation of Article 7.262 It is also a breach of Article 7 (inhuman treatment) towards the members of the family of the person sentenced to death to deny them the right to be informed either of the date of the execution or the location of the burial site.263 In other terms, as shown in these cases, to be compatible with the Covenant, the death penalty should at least meet some humanity and dignity standards. On this matter, the Committee has been rather progressive in combatting various aspects of the death penalty, despite the fact that such penalty is not prohibited under the Covenant. The Committee has also had to deal with several enforced disappearances cases, mainly against Algeria, Libya, Mexico and Nepal. Since the Covenant does not define enforced disappearances, the Committee has borrowed the definition from another international instrument and explicitly cites the Rome Statute of the International Criminal Court in its views,264 with additional footnotes or references to other instruments such as the 2006 International Convention for the Protection of All Persons from Enforced Disappearance, the 1992 Declaration on the Protection of All Persons from Enforced Disappearance265 and the 1994 Inter-​American Convention on Forced Disappearance of Persons.266 Enforced disappearances involve multiple violations of the ICCPR267 : in most cases, the Committee finds evidence that the victim has been arrested arbitrarily and detained incommunicado in violation of the right to liberty and security (Article 9), before disappearing. In addition, for the Committee the degree of suffering provoked by such detention without any contact with the outside world and the anguish and stress caused to the family due to the disappearance and the uncertainty about the whereabouts and fate of the victim, violate the right not to be subjected to ill-​treatments (Article 7) for both the victim and the family, as well as the right of persons detained to be treated with humanity (Article 10). Moreover, in such situations, the state fails to 261 Ng. v Canada, views adopted on 5 November 1993, comm 469/​1991, § 16.4. 262 Chisanga v Namibia, views adopted on 18 October 2005, comm 1132/​2002, § 7.3. 263 Shukurova v Tadjikistan, views adopted on 17 March 2006, comm 1044/​2002, § 8.7. 264 Boucherf v Algeria, views adopted on 30 March 2006, comm 1196/​2003. 265 See Madoui v Algeria, views adopted on 28 October 2008, comm 1495/​2006, § 3.4 (explicit use of the Declaration following the argumentation of the author of the communication). 266 Cifuentes Elgueta v Chile, decision adopted on 28 July 2009, comm1536/​2006. See critical comments in the individual opinion expressed by Chanet, Lallah, and Majodina. 267 Bousroual (on behalf of Saker) v Algeria, views adopted on 15 March 2006, comm 992/​2001, § 9.2. See also: Padilla v Mexico, views adopted on 15 July 2019, comm 2750/​2016.

380  Ludovic Hennebel protect the life of the victim—​or at least subjects the victim to a situation threatening his life—​which entails a violation of the right to life (Article 6), even if the death is not demonstrated and the person’s fate uncertain. Given that in most of these cases, the victim has been removed from the protection of the law, remaining in the hands of the state and impeded from accessing effective remedies, the Committee considers that the right to recognition as a person before the law has been violated as well (Article 16).268 On the particular issue regarding enforced disappearance, the Committee’s jurisprudence is globally in line with the European Court and the Inter-​American Court’s jurisprudence. The Committee has demonstrated its capacity to adapt to this kind of challenging violation in offering adequate legal answers. Dealing with ill treatment and arbitrary deprivation of life cases, the Committee has adopted a rather classic jurisprudence in line with the work of the European and the Inter-​American Courts. States parties to the Covenant have the negative obligation to respect the right to life and the right to integrity—​states agents cannot kill or torture—​ and the positive obligation to ensure and protect these rights, including against acts from private persons. The jurisprudence of the Committee deals with many cases related to torture, ill treatments, extrajudicial killings,269 or the use of lethal force committed by state agents. The findings of the Committee in such cases are rather straightforward. Article 6 of the ICCPR protects the right to life, considered by the Committee as the ‘supreme right’,270 and Article 7 of the ICCPR protects the physical and mental integrity of individuals and prohibits torture or cruel, inhuman, or degrading treatment, or punishment with no possible limitation.271 No derogation is permitted even in exceptional circumstances under these provisions. The Committee found a violation of the right to life in a series of situations, including extrajudicial killings, a sentence to death after an unfair trial,272 the killing of the victim by the army during an arrest,273 the death of a victim while in custody.274 In all these cases, the Committee considered that the deprivation of life was arbitrary. The jurisprudence under Article 7 is similar in the sense that it illustrates gross and severe violations of the right to physical integrity. Technically, there is no formal definition of torture or other ill-​treatments, nor a list of prohibited acts: the legal finding is made by the Committee depending ‘on the nature, purpose and severity of the treatment applied’,275 although the Committee may just find a violation of Article 7 without 268 Al-​Rabassi v Libya, views adopted on 16 December 2014, comm 1860/​2009; Boudehane v Algeria, views adopted on 24 July 2014, comm 1924/​2010; Bhandari v Nepal, views adopted on 29 October 2014, comm 2031/​ 2011. See also: Padilla v Mexico, views adopted on 15 July 2019, comm 2750/​2016. 269 Bakar Japalali and Carmen Baloyo-​Japalali v Philippines, views adopted on 28 March 2019, comm 2536/​2015; Suarez de Guerrero v Colombia, views adopted 31 March 1982, comm 45/​1979, §11.5; Baboeram et al v Surinam, views adopted 10 April 1984, comm 146 et 148-​154/​1983. See also for a case relating to the right to life and the protection of the healthy environment: Cáceres v Paraguay, views adopted on 20 September 2019, comm 2751/​2016. 270 General Comment 36, §2. 271 General Comment 20, §3. 272 Yuzepchuk v Belarus, views adopted on 24 October 2014, comm 1906/​2009. 273 Chaulagain v Nepal, views adopted on 28 October 2014, comm 2018/​2010. 274 Akmatov v Kyrgyzstan, views adopted on 29 October 2015, comm 2052/​2011, §8.4 and n. 275 General Comment 20, §4. See for instance for a case of ‘rape and other forms of sexual violence and torture’ by the members of the army and the police of a 14-​year-​old indigenous girl: see also Fulmati Nyaya v. Nepal, views adopted on 18 March 2019, comm 2556/​2015, §72.

The Human Rights Committee  381 qualifying the prohibited treatment as torture or as one of the other ill-​treatments mentioned under Article 7.276 Ill-​treatments include acts causing physical pain or mental suffering,277 physical and psychological pressure to force a confession,278 enforced disappearances,279 corporal punishments,280 forced hospitalization to punish or humiliate,281 or medical or scientific experimentations without consent (Article 7 of the ICCPR). In addition to the violation of the negative obligation of the state regarding the right to life and the right to physical integrity, the Committee may find a violation of the positive obligation of the state either when, by act or omission, it has failed to positively protect their rights, or when a crime has been committed against a person under its jurisdiction and it failed to investigate and prosecute the persons responsible. For instance, State parties have an obligation to take steps to ensure the safety of the victim of death threats,282 to ensure the protection of the life of the detainees, and to investigate cases of deprivation of life,283 and allegation of ill treatment.284 Facing such situations, the Committee considers that ‘the burden of proof cannot rest on the author of the communication alone, especially considering that the author and the State party do not always have equal access to the evidence and frequently the State party alone has access to the relevant information’.285 The Human Rights Committee has adopted an extensive and rich jurisprudence on ill treatment and arbitrary deprivation of life. Again, it has contributed to defining global standards in these complex cases, globally in line with the European and Inter-​American Courts’ work on the same issues. Often, the Committee has had to deal with cases involving the extradition or expulsion of someone who risks being exposed to a real and personal risk of being executed or tortured or receiving other ill treatment in the receiving state. The jurisprudence has evolved towards a better and more comprehensive protection and is a good example of how the Committee has been ready to overturn its own earlier case law in line with an evolving and dynamic interpretation of certain rights. In the 1993 case of Kindler v Canada, the Committee did not find that the extradition of a fugitive to the United States where he had been sentenced to death for first degree murder and kidnapping breached Article 6 of the Covenant. Canada was not required to refuse to extradite or to seek diplomatic assurances while performing the extradition, despite the fact that Canada abolished the death penalty except for certain categories of military offenses.286 This jurisprudence, from which several members dissented,287 was overturned ten years later in Judge v Canada, where the Committee considered that the deportation in 276 Henry v Trinidad and Tobago, views adopted 3 November 1998, comm 752/​1997. 277 Conteris v Uruguay, views adopted 17 July 1985, comm 139/​1983. See also: Whelan v Ireland, views adopted 17 March 2017, comm 2425/​2014: dealing with the impact of the legal prohibition of abortion in Ireland. 278 Pavel Selyun v Belarus, views adopted on 6 November 2015, comm 2289/​2013, §7.2. 279 Laureano v Peru, views adopted on 4 July 1994, comm 540/​1993, §8.5. 280 Higginson v Jamaica, views adopted on 28 March 2002, comm 792/​1998, §4.6. 281 T.V. and A.G. v Uzbekistan, views adopted on 11 March 2016, comm 2044/​2011, §7.10. 282 Luis Asdrúbal Jiménez Vaca v Colombia, views adopted on 25 March 2002, comm 859/​1999, §7.3. 283 Telitsina v Russian Federation, views adopted on 29 March 2004, comm 888/​1999, §7.6. 284 Pavel Selyun v Belarus, views adopted on 6 November 2015, comm 2289/​2013, §7.2. 285 Boucherf v Algeria, views adopted on 30 March 2006, comm 1196/​2003, §9.4. 286 Kindler v Canada, views adopted on 30 July 1993, comm 470/​1991. 287 See for example individual opinions of Wennergren; Lallah; Pocar; Chanet; Aguilar Urbina.

382  Ludovic Hennebel this case would be a breach of Article 6 of the Covenant since Canada would expose the individual to the application of the death sentence in the requiring state.288 The same reasoning applies in cases dealing with exportation, expulsion, or refoulement towards a state where individuals may be exposed to torture or ill treatment. In Alzery v Sweden, the Committee found that the deportation to Egypt of a candidate for asylum who was suspected of being involved in terrorist-​related activities breached Article 7 of the Covenant since he was exposed to a real and personal risk of torture. To assess the situation, the Committee referred to the general human rights situation in Egypt, as well as to the lack of effectiveness of the diplomatic guarantees due to the absence of adequate mechanisms for monitoring and enforcement.289 Furthermore, the Committee has extended its jurisprudence to other types of ill treatments to which an individual could be exposed in case of deportation.290 For instance, in C. v Australia, the Committee considered ‘that deportation of the author to a country where it is unlikely that he would receive the treatment necessary for the illness caused, in whole or in part, because of the State party’s violation of the author’s rights would amount to a violation of article 7 of the Covenant’.291 In Kaba v Canada, the Committee found that the expulsion of a fifteen-​year old girl to Guinea would expose her to the real and personal risk of being subjected to genial mutiliation. Considering that ‘subjecting a woman to genital mutilation amounts to treatment prohibited under article 7 of the Covenant’, the Committee was of the view that her deportation would constitute a violation of the Covenant.292 Thanks to this jurisprudence, the Committee has extended the protection of individuals who may be exposed to a risk of ill treatment, and appears to be sometimes rather more progressive and sometimes more protective than the European Court of Human Rights on this matter. The jurisprudence in discrimination cases based on Article 26 of the Covenant is probably the best illustration of the creative and evolving understanding of the Covenant—​as well as one of the most debatable—​that one can find in the interpretative work of the Committee.293 The Human Rights Committee defines the notion of discrimination in a rather broad sense. This is significant since non-​discrimination, with equality before the law and equal protection of the law without discrimination, is one of the cardinal protections of the Covenant.294 Inspired by the International Convention 288 Judge v Canada, views adopted on 5 August 2003, comm 829/​1998. See eg Kwok v Australia, views adopted on 23 October 2009, comm 1442/​2005. 289 Alzery v Sweden, views adopted on 25 October 2006, comm 1416/​2005. See also eg Hamida v Canada, views adopted on 18 March 2010, comm 1544/​2007. 290 In a 2007 decision, concerning extradition to Italy where the author was condemned to life imprisonment, the Committee considers that the ‘subjection of the author to treatment that violated the Covenant was not the necessary and foreseeable consequence of his extradition’. Esposito v Spain, decision adopted on 20 March 2007, comm 1359/​2005. 291 C. v Australia, views adopted on 28 October 2002, comm 900/​1999, § 8.5. 292 Kaba v Canada, views adopted on 25 March 2010, comm 1465/​2006, §§ 10.1 and n. 293 See: N Ando, ‘The Evolution and Problems of the Jurisprudence of the Human Rights Committee’s Views Concerning Article 26’ in N Ando (ed), above n 23, 205. See also for an exemple of gender-​based discrimination in a rape and torture case: Fulmati Nyaya v. Nepal, views adopted on 18 March 2019, comm 2556/​2015. 294 The prohibition of discrimination is provided in several articles of the Covenant in addition of the general non-​discrimination provision of Article 26, including Articles 2, 3, 4, and in specific rights provisions such as 14, 23, 24, 25, and 27.

The Human Rights Committee  383 on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women, the Committee considers that the term ‘discrimination’ refers to ‘any distinction, exclusion, restriction or preference’ based on a prohibited ground—​‘or other status’, ‘and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms’.295 In line with the classic application of the non-​discrimination principle in international human rights law, the Committee considers that a distinction does not constitute a discrimination if it is based on objective and reasonable criteria.296 When it comes to the prohibited grounds of discrimination, although Article 26 only mentions those as ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’, the Committee has expanded that list on the basis of the Covenant’s prohibition of discrimination on the basis of any ‘other status’. Therefore, any grounds such as for instance family situation,297 age,298 or sexual orientation299 can be a violation if they serve to make a distinction that is not reasonable or objective. For instance, discriminations against homosexuals have been held to violate Article 26 of the Covenant even though this ground was not specifically listed under this provision (and even though some states might have opposed such an inclusion at the time of the Covenant’s adoption, and to this day). Moreover, the Human Rights Committee has interpreted Article 26 as providing for an autonomous right to non-​discrimination and equality. This is probably the most audacious and remarkable interpretation of the Covenant offered by the Committee. According to its views, Article 26 is applicable not only to the rights and liberties of the Covenant—​in the way the equivalent Article 14 of the European Convention on Human Rights is said to relate only the rights of the Convention300—​but to any rights, that is, civil, political, but also economic, social and cultural, provided by domestic Law.301 The Committee has applied this creative jurisprudence in several dozen cases, including in relation to social-​ security benefits302 or right to property.303 In our view, in doing so, the Committee is using the non-​discrimination clause to slowly reconcile civil and political rights with economic and social rights. Such dynamic interpretations may nonetheless hurt a more conservative or positivist understanding of the Covenant which will view extending the

295 General Comment 18, § 7. 296 General Comment 18, § 13. See eg Schmitz-​de Jong v The Netherlands, views adopted on 16 July 2001, comm 855/​1999. 297 L.G. Danning v The Netherlands, views adopted on 9 April 1987, comm 180/​1984; Hoofdman v The Netherlands, views adopted on 3 November 1998, comm 602/​1994. 298 Love v Australia, views adopted on 25 March 2003, comm 983/​2001. 299 Toonen v Australia, views adopted on 30 March 1994, comm 488/​1992; X. v Colombia, views adopted on 30 March 2007, comm 1361/​2005. 300 The Protocol 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, entered into force in 2005, provided for a general prohibition of discrimination. 301 Broeks v The Netherlands, views adopted on 9 April 1987, comm 172/​1984. 302 L.G. Danning v The Netherlands, views adopted on 9 April 1987, comm 180/​1984. 303 See the Czech Republic cases: Simunek et al v Czech Republic, views adopted on 19 July 1995, comm 516/​ 1992; Drda v Czech Republic, views adopted on 27 October 2010, comm 1581/​2007.

384  Ludovic Hennebel protection of Article 26 to discrimination based on the sexual orientation as creating new rights and exceeding or even abusing its power of interpretation.304 Article 9 of the ICCPR protects the right to security—​from infliction of injuries305—​ and the right to liberty—​understood as the freedom from the confinement of the body, but not including a general freedom of action.306 The right to liberty is not absolute and deprivation of the liberty of individuals may be justified, typically in the enforcement of criminal laws or in other confinement situations involving psychiatric patients,307 military discipline,308 or migration controls309 for instance. However, to be compatible with the ICCPR, such deprivation of liberty must respect the rule of law and not be arbitrary, persons deprived of their liberty must enjoy procedural guarantees, and the conditions of detention must meet certain standards. Contrary to Article 5§1 of the European Convention of Human Rights, the ICCPR does not provide an exhaustive list of permissible reasons for detention. States must establish such reasons by law. Unlawful arrest or detention—​understood as an arrest or detention unauthorized by law or not respecting the legal procedure established by law—​and arbitrary arrest or detention—​interpreted broadly ‘to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality’310—​are incompatible with the ICCPR. Severe violations of the right of liberty were found in situations of arbitrary detentions concerning enforced disappearances,311 incommunicado detentions,312 extraordinary renditions,313 and arrests or detentions based on political motives.314 To protect individuals against unlawful or arbitrary arrests or detentions, States parties must respect certain guarantees: the right to be informed, at the time of the arrest, of the reasons for the arrest—​criminal or based on another ground315—​and the right to be promptly informed of any criminal charges (Article 9§2 of the ICCPR);316 the right for any person arrested or detained on a criminal charge to be brought automatically and promptly—​no more than a few days (forty-​eight hours) after the arrest317—​to appear physically before a judge or an officer authorized by law to exercise judicial power who is objective and impartial—​excluding a public prosecutor318—​to decide whether 304 See individual opinion Amor and Khalil in X. v Colombia, views adopted on 30 March 2007, comm 1361/​ 2005. 305 General Comment 35, CCPR/​C/​GC/​35, §9. 306 General Comment 35, CCPR/​C/​GC/​35, §3. 307 A. v New Zealand, views adopted on 15 July 1999, comm 754/​1997, §7.2; Fijalkowska v Poland, views adopted 26 July 2005, comm 1061/​2002. 308 Vuolanne v Finland, views adopted on 7 April 1989, comm 265/​1987. 309 A. v Australia, views adopted 3 April 1997, comm 560/​1993; Shafiq v Australia, views adopted 31 October 2006, comm 1324/​2004. 310 General Comment n°35, CCPR/​C/​GC/​35, §12. 311 Al-​Rabassi v Libya, views adopted on 18 July 2014, comm 1860/​2009. 312 Celis Laureano v Peru, views adopted on 25 March 1996, comm 540/​1993. 313 Lopez Burgos v Uruguay, views adopted on 29 July 1981, comm 52/​1979. 314 Mukong v Cameroun, views adopted on 21 July 1994, comm 458/​1991, §9.8. 315 Marques v Angola, views adopted 29 March 2005, comm 1128/​2002. 316 Aboufaied v Libyan Arab Jamahiriya, views adopted on 21 March 2012, comm 1782/​2008, §7.6. 317 Marques v Angola, views adopted 29 March 2005, comm 1128/​2002, §6.3; Kovsh v Belarus, views adopted 27 March 2013, comm 1787/​2008; Aboufaied v Libyan Arab Jamahiriya, views adopted on 21 March 2012, comm 1782/​2008,  §7.6. 318 Kulomin v Hungary, views adopted on 22 March 1996, comm 521/​1992, §11.3.

The Human Rights Committee  385 the person concerned should be released or remanded in custody (Article 9§3 of the ICCPR); the right to be tried within a reasonable time or to be released (Article 9§3 of the ICCPR), limiting the pretrial detention periods to a reasonable delay evaluated in the circumstances of the case, and keeping in mind that pretrial detention shall be the exception—​to prevent interference with evidence, another crime, or the flight of the person concerned—​and not the rule;319 the right of habeas corpus (Article 9§4 of the ICCPR) empowering any person in detention—​for criminal proceedings or based on any other grounds—​to take proceedings—​with the assistance of a lawyer320—​before a court which may decide without delay on the lawfulness of the detention, and order release321 if the detention is unlawful, and the right to receive a decision without delay;322 and the right to compensation (Article 9§5 of the ICCPR) to anyone who has been victim of unlawful arrest or detention.323 Finally, the conditions of detention, including in prisons, psychiatric hospital and other detention facilities, must meet certain requirements to ensure that they are humane (Article 10§1 of the ICCPR).324 States must fully respect the dignity of the persons detained who should not ‘be subjected to any hardship or constraint other than that resulting from the deprivation of liberty’;325 To assess the detention conditions, the Committee refers to several soft law rules, including the Standard Minimum Rules for the Treatment of Prisoners.326 To be inhumane, the treatment must attain a minimum level of severity, taking into account all the circumstances of the case including the ‘nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age, state of health or other status of the victim’.327 Typical violations of the humane conditions of detention requirements would be based on material deplorable conditions,328 incommunicado detention, including in cases of enforced disappearances,329 or the denial of access to medical treatments330 for instance. The entire jurisprudence of the Committee regarding the right to liberty is ample and rich. The guarantees are similar to those offered under regional instruments and again the jurisprudence is in line with regional standards. Due process guarantees have been discussed and interpreted by the Committee in several cases. Article 14 of the ICCPR lists a number of guarantees that States parties must respect to ensure equality before the courts and tribunals and the right to a fair trial. Although specific reservations made under Article 14 may be compatible with 319 Hill and Hill v Spain, views adopted 2 April 1997, comm 526/​1993, §12.3. 320 Marques v Angola, views adopted 29 March 2005, comm 1128/​2002, 321 Griffiths v Australia, views adopted on 21 October 2014, comm 1973/​2010. 322 C. v Australia, views adopted 28 October 2002, comm 900/​1999, §8.3. 323 Willy Wenga Ilombe et al v Democratic Republic of Congo, views adopted on 17 March 2006, comm 1177/​ 2003. 324 General Comment 21, 325 Boudehane v Algeria, views adopted 24 July 2014, comm 1924/​2010. 326 Abdullayev v Turkmenistan, views adopted on 25 March 2015, comm 2218/​2012, §7.3. 327 Brough v Australia, views adopted on 17 March 2006, comm 1184/​2003, §9.2. 328 Kennedy v Trinidad and Tobago, views adopted on 26 March 2002, comm 845/​1998, §§7.7–​7.8. 329 Boudehane v Algeria, views adopted on 24 July 2014, comm 1924/​2010. 330 Mambu v Democratic Republic of the Congo, views adopted on 3 November 2016, comm 2465/​2014; Simpson v Jamaica, views adopted 31 October 2001, comm 695/​1996.

386  Ludovic Hennebel the object and purpose of the ICCPR, a general reservation would not be compatible with the ICCPR. States parties may derogate from this provision in exceptional circumstances, but such derogations must be proportionate and reasonable, and may not impact on non-​derogable rights, which means, for instance, that a state may not derogate from the obligation to respect the fair trial’s guarantees to impose death penalty or to use confession obtained under torture during a state emergency. The first general guarantee provided under Article 14.1 of the ICCPR deals with the equality before the courts and tribunals, including the right of access to justice, the equality of arms, and the obligation to deal with similar cases in similar proceedings. These guarantees apply in cases of determination of criminal charges—​regarding acts punishable under domestic law or criminal in nature—​and rights and obligations in a suit of law—​based on the nature of the right.331 In its jurisprudence, the Committee has underlined the importance of facilitating access to justice, for instance in providing legal aid332 and in not imposing excessive fees;333 of establishing competent, independent and impartial tribunals334—​and in prohibiting, for instance, ‘faceless’ tribunals.335 The other guarantees under Article 14 protect everyone charged with a criminal offence through specific rights and guarantees, including, for instance, defence rights, the presumption of innocence, or the right to have a conviction and sentence reviewed by a higher tribunal. The jurisprudence on Article 14 is too rich and expansive to be summarized in a few lines, but it should be underlined that the Committee has adopted a protective interpretation of the fair trial rights, comparable to the jurisprudence of the European and Inter-​American Courts. The case law on private life and family cases is infrequent but, again, globally in line with the European and the Inter-​American Courts. Article 17 of the ICCPR protects individuals against arbitrary or unlawful interference with their privacy, family, correspondence, or home. These notions cover several aspects and are interpreted broadly by the Committee. Privacy refers to ‘the sphere of a person’s life in which he or she can freely express his or her identity, be it by entering into relationships with others or alone’.336 Interferences with privacy in violation of Article 17 of the ICCPR were found, for instance, in cases regarding the arbitrary refusal to allow an abortion endangering the life of the mother;337 the arbitrary rejection of a request for recognition of the change of first names to Hindu names, given that names are an important aspect of one’s identity;338 or the criminalization of sexual relationships.339

331 General Comment 32, §16. 332 Ibid, §10. 333 Lindon v Australia, views adopted 25 November 1998, comm 646/​1995, §6.4. 334 Gonzalez del Rio v Peru, views adopted 28 October 1992, comm 263/​1987, §5.2. For the determination of these concepts, see General Comment 32. 335 Becerra Barney v Colombia, views adopted on 11 July 2006, comm 1298/​2004. 336 Coeriel and Aurik v The Netherlands, comm views adopted on 31 October 1994, comm 453/​1991, §10.2. 337 K.N.L.H. v Peru, views adopted on 24 October 2005, comm 1153/​2003, §6.4. See Whelan v Ireland, views adopted 17 March 2017, comm 2425/​2014. 338 Coeriel and Aurik v The Netherlands, views adopted on 31 October 1994, comm 453/​1991, §10.5. 339 Toonen v Australia, views adopted on 30 March 1994, comm 488/​1992, §8.2.

The Human Rights Committee  387 Moreover, the unity of the family—​ understood broadly and referring to the family during marriage or cohabitation and to the relationships between children and parents340—​must be preserved against arbitrary interferences. State’s decisions preventing family reunification or to maintain a family—​typically in cases of deportation341 or immigration342 of one of the members of the family or in cases dealing with custody issues343—​are interferences that must be reasonable and duly justified. Additionally the family as ‘the natural and fundamental group unit of society’ is protected under Article 23, which recognizes the right to marriage ‘between men and women’. The Committee considers that homosexual marriage is not guaranteed under the ICCPR.344 The Committee may find a violation of the right to not be subjected to interference with the privacy, family and home—​understood as the ‘place where a person resides or carries out his usual occupation’345 —​of the victim, when an arrest without a warrant is made after forcing entry into the home of the victim,346 or result in the destruction of the house.347 Other occurrences may concern situations of harassment and intimidation by the authorities;348 the arbitrary refusal to deliver a visa implying the obligation to leave the country or the impossibility of entering a country interfering with a long-​settled family life;349 the arbitrary denial of a detainee’s right to see his family or to correspond with his relatives;350 the search of a home without legal grounds, and the confiscation of an apartment and passport;351 or the passive attitude of the prison authorities in depriving of information\ the family of a detainee, who was admitted at the hospital and terminally ill.352 The Committee has adopted a reasonably progressive jurisprudence on questions related to private life and privacy, using concepts such a ‘family’ carefully in a global context rich with cultural diversity. The Committee had to deal with several cases related to religion, expression and political rights and liberties. Fundamentally, its jurisprudence does not depart from the European and the Inter-​American Court’s lines, and may be more protective than the European Court on certain issues. The right to freedom of thought, conscience and religion protects all sorts of beliefs, theistic, non-​theistic and atheistic, beyond traditional religions, and the right to change, manifest, or profess, or, not any religion or belief, including the liberty of the parents to ensure the moral and religious education of their 340 Balaguer Santacana v Spain, decision adopted on 25 March 1992, comm 417/​1990, §10.2. 341 Dauphin v Canada, views adopted on 28 July 2009, comm 1792/​2008, §8.4; D.T. v Canada, views adopted 15 July 2016, comm 2081/​2011. 342 El Hichou v Denmark, views adopted on 22 July 2010, comm 1554/​2007, §7.4; El Dernawi v Libyan Arab Jamahiriya, views adopted on 20 July 2007, comm 1143/​2002, §.6.3. 343 N.T. v Canada, views adopted on 20 March 2007, comm 1052/​2002, §8.6. 344 Joslin v New Zealand, views adopted on 17 July 2002, comm 902/​1999, §8.2. 345 General Comment 16, §5. See also: Cáceres v Paraguay, views adopted on 20 September 2019, comm 2751/​ 2016: on the right to a healthy environment. 346 Kroumi v Algeria, views adopted on 28 July 2011, comm 2083/​2011. 347 Hmeed v Libya, decision adopted on 17 October 2014, comm 2046/​2011. See also for the demolition of the victim’s shed: Georgopulos et al v Greece, views adopted 29 July 2010, comm 1799/​2008, §7.3. 348 El Hojouj v Libya, views adopted on 21 July 2014, comm 1958/​2010. 349 Leghaei and others v Australia, views adopted on 26 March 2015, comm 1937/​2010. 350 Khadzhiev v Turkmenistan, views adopted on 1 April 2015, comm 2079/​2011. 351 Yklymova v Turkmenistan, views adopted on 20 July 2009, comm 1460/​2006, §7.6. 352 Morales Tornel et al v Spain, views of 20 March 2009, comm 1473/​2006, §7.4.

388  Ludovic Hennebel children in conformity with their convictions (Article 18§4 of the ICCPR).353 Although freedom of thought and conscience and the right to adopt, or not, a religion or belief are protected in an absolute manner,354 the right to manifest a religion or a belief may be limited by the state under certain conditions: the limitation must be prescribed by law and necessary to protect public safety, order, health or morals, or the fundamental rights and freedom of others, given that these grounds are exhaustive. Violations of the right to manifest religion or beliefs have been found, for instance, in cases concerning criminal convictions or deportation for preaching, praying and holding religious rituals;355 the arbitrary refusal to register a religious association;356 the criminal conviction of conscientious objectors;357 or the unjustified exclusion from university of a student based on her refusal to remove the headscarf she wore according to her beliefs.358 In other cases, the Committee has considered that limitations to manifest religion or beliefs were compatible with the ICCPR: the termination of a labour contract of a Sikh based on his refusal to wear safety headgear during work, which was incompatible with the religious duty to wear a turban, may be justified for safety reasons;359 although Rastafarianism is considered a religion by the Committee, and despite the fact that the use of cannabis is inherent to the manifestation of Rastafarian religion, the refusal of the state to grant Rastafarians an exemption to its general prohibition of the use of cannabis is justified under Article 18§3 of the ICCPR.360 Dealing with religious cases, the Human Rights Committee is more protective than the European Court over certain issues such as the wearing of religious signs,361 and it has been the first to protect conscientious objectors. The Committee may be a better forum for strategic litigation for this kind of cases. The right to hold opinions—​of all forms, including religious, political moral, scientific or historic—​is protected in an absolute manner (Article 19.1 of the ICPPR) against any kind of interference, including coercion or criminalization: no exception, no restriction, no derogation and no reservation are allowed.362 The criminal conviction and detention of a political opponent forced to participate in an ideological conversion system is a manifest violation of the right to hold opinion.363 The right to freedom of expression (Article 19.2 of the ICCPR) which includes the right to seek, receive and 353 Leirvåg v Norway, views adopted on 3 November 2004, comm 1155/​2003, §§14.3 and n. See also: Waldman v Canada, views adopted on 3 November 1999, comm 694/​1996. 354 Malakhovsky et al v Belarus, views adopted on 26 July 2005, comm 1207/​2003, §7.6. 355 Leven v Kazakhstan, views adopted on 21 October 2014, comm 2131/​2012. 356 Sister Immaculate Joseph and others v Sri Lanka, views adopted on 21 October 2005, comm 1249/​2004. 357 Jung et al v Republic of Korea, views adopted on 23 March 2010, comm 1593-​1603/​2007, §7.2. 358 Hudoyberganova v Uzbekistan, views adopted on 5 November 2004, comm 931/​2000, §6.2. See also: Singh v France, views adopted on 1 November 2012, comm 1852/​2008 (concerning a Sikh expelled from public secondary school for refusing to uncover his hair); Shingara Mann Singh v France, views adopted on 19 July 2013, comm 1928/​2010 (concerning the wearing of a Sikh turban on an identity document). See also: Sonia Yaker v France, views adopted on 17 July 2018, comm 2747/​2016. 359 Bhinder v Canada, views adopted on 9 November 1989, comm 208/​1986, §6.1. 360 Prince v South Africa, views adopted on 31 October 2007, comm 1474/​2006, §7.3. 361 Sonia Yaker v France, views adopted on 17 July 2018, comm 2747/​2016. Compare for instance with Eur. Ct. H.R., GC, Leyla Sahin v Turkey, 10 November 2005, req. n°44774/​98. 362 General Comment 34, CCPR/​C/​GC/​34,  §9. 363 Kang v Republic of Korea, views adopted on 15 July 2003, comm 878/​1999, §7.2.

The Human Rights Committee  389 impart information and ideas,364 protects any kind of ideas and expression, political, religious, cultural, commercial, and any kind of support or mode of expression, including spoken, written, painting, pictures, sign language,365 in any language.366 The exercise of the freedom of expression may be limited (Article 19.3 of the ICCPR) under certain conditions: the restriction must be provided by law and must be necessary to protect the rights or reputation of others or national security, public order or public health or morals. Criminal convictions—​or administrative sanctions—​for the expression of political ideas are most of the time not justified, unnecessary and incompatible with the ICCPR according to the Committee’s jurisprudence,367 especially when it concerns political criticisms held by journalists.368 Criminal laws penalizing ‘glorification of terrorism’, blasphemy, defamation, or the expression of opinions about historical facts—​ including memory-​ laws—​ are closely scrutinized by the Committee, and may be compatible with the ICCPR under strict conditions. Discourses that advocate ‘national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’ (Article 20.2 of the ICCPR) may justify a criminal conviction or other kind of sanction, for instance, when they advocate hatred against the Jewish community,369 when they promote the ideology of a political party threatening the national security,370 or when they deny crimes against humanity in violation of a memory-​law.371 The Committee adopts a very protective position on freedom of expression, especially in condemning the use of criminal law to restrict expression. Again, the Human Rights Committee’s jurisprudence seems to be even more protective than the European Court’s jurisprudence on certain issues related to free speech.372 In addition to freedom of expression, individuals may invoke their freedom of association (Article 22 of the ICCPR), including the right to join and form trade unions (but not the right to strike),373—​that may be violated when, for instance, a state arbitrarily refuses to register an non-​governmental organization,374 or when a state fails to demonstrate the necessity of criminalizing the membership to a political group375—​ or their freedom of peaceful assembly (Article 21 of the ICCPR), which also protects public political gatherings.376 These liberties are fundamental in a democratic society, 364 Concerning the accreditation of journalist to access to legislative assemblies, see: Koktish v Belarus, views adopted on 24 July 2014, comm 1985/​2010. 365 General Comment 34, CCPR/​C/​GC/​34, §§11–​12. Mavlonov and Sa’di v Uzbekistan, views adopted on 19 March 2009, comm 1334/​2004 (concerning the refusal to register a journal written in a minority language). See also: Valery Misnikov v Belarus, views adopted 14 July 2016, comm 2093/​2011. 366 Ballantyne et al v Canada, views adopted on 31 March 1993, comm 359/​1989, §11.4. 367 Kozlov v Belarus, views adopted on 24 July 2014, comm 1986/​2010. 368 Bodrozic v Serbia and Montenegro, views adopted on 31 October 2005, comm 1180/​2003, §7.2. 369 J.R.T. and the W.G. Party v Canada, decision adopted on 6 April 1983, comm 104/​1981 (in this case, the Committee found the communication inadmissible, considering that such hate speech was not protected under the ICCPR). 370 A.K. and A.R. v Uzbekistan, views adopted on 31 March 2009, comm 1233/​2003, §7.2. 371 Faurisson v France, views adopted on 8 November 1996, comm 550/​1993, §9.3. 372 Comp. with Eur. Ct. H.R., Leroy v France (the criminal conviction of a cartoonist for complicity in the apology of terrorism was not seen as a violation of Article 10 of the Convention). 373 J.B. et al v Canada, decision adopted on 18 July 1986, comm 118/​1982. 374 Mikhailovskaya and Volchek v Belarus, views adopted on 24 July 2014, comm 1993/​2010. 375 Jeong-​Eun v Republic of Korea, views adopted on 20 July 2005, comm 1119/​2002, §7.2. 376 Kivenmaa v Finland, views adopted on 31 March 1994, comm 412/​1990, §9.2.

390  Ludovic Hennebel which requires that ‘citizens’—​and not all individuals otherwise falling under the state’s jurisdiction—​may exercise their right to vote, to be elected, and to participate in the conduct of public affairs (Article 25 of the ICCPR).377 Such political rights imply the right to form political parties under certain conditions378 and the right to have equal access to public service positions.379 Finally, the Human Rights Committee has rendered some interesting decisions regarding the protection of the rights of indigenous people and minorities. Although the ICCPR protects the right to self-​determination380 under Article 1 and this right has been claimed by some indigenous groups, the Committee preferred to examine these claims under Article 27 of the ICCPR protecting the rights of minorities.381 Therefore, most of the cases under that provision concerned the rights of individual members of indigenous communities,382 including the ability to engage in their ­traditional way of life.383

10.5 Conclusions The Human Rights Committee has accomplished a significant amount of work through the mechanisms of reporting and individual communications. The success of the ICCPR, demonstrated at least quantitatively by the increased number of ratifications, has strengthened its legitimacy. However, the Human Rights Committee is facing ­critical challenges that cannot be ignored. Some of these challenges are of a structural nature. The Human Rights Committee has not enough means to properly fulfil the ambitious tasks it was assigned, and lacks material and human resources. Increasing the resources would be decisive in ensuring the careful examination of the state reports, the construction of a solid jurisprudence on human rights, and an effective dialogue with States parties. Nowadays, the complaint mechanism remains underused considering the number of parties to the Optional Protocol, and the procedure is too slow. Moreover, the views are very often technical and may lack force of persuasion. In addition, the work of the Committee remains confidential—​even for lawyers. Most of these flaws may be partially resolved thanks to better resources. Moreover, without questioning the expertise of the Committee’s members, the selection process of members is dated and should be more transparent. Ideally, two mandates should be the maximum to ensure a better turnover and the independence of the members. Moreover, it should aim at reaching a better balance, including based on 377 General Comment 25, CCPR/​C/​21/​Rev.1/​Add.7. 378 M.A. v Italy, decision adopted on 10 April 1984, comm 117/​1981 [an individual petition brought against the prohibition of the formation of a fascist political party is inadmissible]. 379 Aduayom et al v Togo, views adopted on 12 July 1996, comm 424/​1990, §7.5. 380 Lubicon Lake Band v Canada, decision adopted on 22 July 1987, comm 167/​1984, §32.1 381 The Rehoboth Baster Community v Namibia, views adopted 25 July 2000, comm 760/​1997. 382 Lovelace v Canada, views adopted 30 July 1981, comm 24/​1977. 383 Ilmari Länsman et al v Finland, views adopted 26 October 1994, comm 511/​1992.

The Human Rights Committee  391 gender. In our view, there is no doubt that a strict balance between genders should be respected within all international human rights bodies.384 The Human Rights Committee has made remarkable progress in socializing States parties based on common values found in the Covenant and its jurisprudence. This process of socialization was not based on coercion—​given that the recommendations of the Committee are not binding—​but is mainly the result of persuasion.385 The ‘constructive dialogue’ led by the Committee with States parties has been fruitful in many occurrences and, at the minimum, has opened up a discussion with states. In sum, the Committee has used effectively and with intelligence all the mechanisms that were at its disposal, including the reporting mechanism, the individual petition system, and the general comments. Through that work, the Committee may contribute to persuading the states to amend their behaviour, and to ‘domesticate’ the Covenant. The Committee should further develop the quality of its legal argumentation—​especially in its views—​ in order to persuade a multicultural audience. It might also, at this stage, be more demanding regarding remedies, interim measures and follow-​up procedure. Despite the major role played by the Human Rights Committee in the current international architecture, it has adopted an ‘isolationist’ posture regarding the other human rights bodies, including the regional courts. Using a careful and cogent but explicit citation of other international human rights sources and jurisprudence would not only enhance the effectiveness of the Committee’s interpretation of the Covenant, but may contribute to foster constructive dialogue with other international and regional bodies and reinforce its global authority. Finally, the Human Rights Committee may become a major leader in the United Nations human rights machinery if it agrees to dialogue with the other conventional organs and other bodies, including UN special rapporteurs. Such dialogue should not be only formal, but should be based on a quasi-​judicial dialogue, a critical ­account of the work produced by other bodies, the cross-​fertilization of the Committees’ ­jurisprudence, and references to the work of other bodies including the Human Rights Council and the UN special rapporteurs’ reports. To sum up, the Human Rights Committee would gain in credibility at the UN if it took the UN human rights ­machinery seriously.

384 In the new configuration of the Human Rights Committee of 2019, six female members have been elected. 385 See generally on this question:  R Goodman and D Jinks, ‘How to Influence States:  Socialization and International Human Rights Law’ (2004) 54 Duke Law Journal 621–​703.

11 The Committee on the Elimination of Discrimination Against Women Andrew Byrnes*

11.1  Introduction The adoption on 18 December 1979 by the United Nations General Assembly of the Convention on the Elimination of All Forms of Discrimination against Women (the CEDAW Convention)1 represented a major contribution by the Commission on the Status of Women (the Commission or CSW) to the formulation of international human rights standards to address discrimination against women throughout the world. The new Convention brought together in one instrument the specific guarantees of equality found in treaties developed by the Commission in the 1950s and 1960s in relation to marriage, nationality, and political rights, and incorporated the rights proclaimed in the 1967 Declaration on the Elimination of All Forms of Discrimination against Women. It also drew on the provisions of the two International Covenants by prohibiting discrimination against women in relation to the rights guaranteed by them, and added its own innovative guarantees. The Convention was an ambitious attempt to codify in legally binding form at the international level existing law, as well as to enlist international law in the effort to address the oppression of women. Fundamental to its framework is the premise of discrimination against women in all fields of life; its analysis and solutions reflect also the * I  am grateful to Maria Herminia Graterol, Jane Connors, Yoko Hayashi, and Shanthi Dairiam for their comments on the text, and to Eleanor Bath for her research assistance with various drafts of this chapter. 1 GA Res 34/​180, 1249 UNTS 13. As of 15 March 2019 there were 189 States parties to the Convention, the last ratification or accession being that of South Sudan in 2015: Multilateral Treaties Deposited with the Secretary-​ General (New York: United Nations) [hereinafter Multilateral Treaties]. The United States of America (1980) and Palau (2011) have signed but not ratified the Convention. See generally L Rehof, Guide to the Travaux Préparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (Martinus Nijhoff, 1993)  [hereinafter Rehof]; Japanese Association of International Women’s Rights, Commentary on the Convention on the Elimination of All Forms of Discrimination Against Women (JAIWR, 1995)  [hereinafter JAIWR Commentary]; M Freeman, C Chinkin, and B Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary (Oxford University Press, 2012) [hereinafter CEDAW Commentary]; Diane Roman (ed), La Convention pour l’élimination des discriminations à l’égard des femmes (Pedone, 2014); and E Schläppi, S Ulrich, and J Wyttenbach (eds), CEDAW: Kommentar zum Übereinkommen der Vereinten Nationen zur Beseitigung jeder Form von Diskriminierung der Frau (Stämpfli/​Manz, 2015); H B Schöpp-​Schilling and C Flinterman (eds), The Circle of Empowerment: Twenty-​Five Years of the UN Committee on the Elimination of Discrimination against Women (Feminist Press, 2007) [hereinafter The Circle of Empowerment]; I Westendorp (ed), The Women’s Convention Turned 30: Achievements, Setbacks and Prospects (Intersentia, 2012).

394  Andrew Byrnes perspectives of its time, and a number of different theoretical and practical strategies for eliminating discrimination against women.2 During the drafting of the Convention,3 there was debate about the form that international supervision of States parties’ fulfillment of their obligations under it should take. The Commission’s previous experience of voluntary reporting under various conventions (and the Declaration) had been unsatisfactory, with few countries reporting and no effective procedure for scrutinizing those reports.4 While some countries considered that no implementation mechanism was necessary under the new Convention, the majority of states disagreed. The various proposals involved either the Commission (or a working group of the Commission) performing this role, or the establishment of a committee of independent experts to do so.5 Although the Commission favoured assigning itself the supervisory role, the General Assembly eventually opted for the establishment of an independent supervisory committee, drawing on the models of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)6 and the International Covenant on Civil and Political Rights (ICCPR).7 Thus was the foundation laid for the establishment of the Committee on the Elimination of Discrimination against Women (CEDAW), a body of independent experts assigned the task of monitoring states’ efforts to fulfil their obligations under the Convention. The principal basis for monitoring was to be the review of reports to be submitted regularly by States parties. In 1999 the Convention was supplemented by the adoption of an Optional Protocol to the Convention, which conferred on the Committee the competence to entertain individual complaints of violations by a State party to the Optional Protocol, as well as the power to initiate inquiries into grave or systematic violations of the Convention in the territory of a State party where a State party to the Optional Protocol has not opted out of the procedure at the time it becomes party to the Protocol. This came relatively late in the history of the Convention, given that other committees had been allowed to hear petitions much earlier, and often from the outset. This chapter assesses the work of CEDAW and its contribution to making the guarantees of the Convention a reality. As one of the family of UN human-​rights treaty 2 See N Hevener, International Law and the Status of Women (Westview, 1983), who identifies three types of provisions (protective, corrective, and non-​discriminatory) in the Convention. 3 See generally Rehof, above n 1; N Burrows, ‘The 1979 Convention on the Elimination of All Forms of Discrimination Against Women’ (1985) 32 Netherlands International Law Review 419; A Fraser, ‘The Convention on the Elimination of All Forms of Discrimination against Women (The Women’s Convention)’ in A Winslow (ed), Women, Politics and the United Nations (Greenwood Press, 1995) 77–​94; K Fukuda, ‘Article 17: The Committee on the Elimination of All Forms of Discrimination against Women’ in JAIWR Commentary, above n 1, 307–​22; H B Schöpp-​Schilling, ‘The Nature and Mandate of the Committee’ in The Circle of Empowerment, above n 1, 248–​61; and I Boerefijn, ‘Article 17’ in CEDAW Commentary, above n 1, 475–​8. 4 N Burrows, ‘Monitoring Compliance of International Standards relating to Human Rights: The Experience of the United Nations’ Commission on the Status of Women’ (1984) 31 Netherlands International Law Review 332. 5 See Rehof, above n 1, 187–​212; Burrows, above n 3, 453–​8; L Reanda, ‘The Commission on the Status of Women’ in P Alston (ed), The United Nations and Human Rights: A Critical Appraisal (1st edn, 1992) 287–​8; Fukuda, above n 3, 307–​22. 6 660 UNTS 195, Articles 8–​16. 7 999 UNTS 171, Articles 28–​45.

Committee on the Elimination of Discrimination Against Women  395 bodies, CEDAW’s performance must be compared with the work and impact of the other committees. An assessment of the record of a treaty body such as CEDAW must take into account, among other factors, the mandate of the body, the expertise and commitment of its members, the political and international legal context of its work, the resources available to it, the efficiency and effectiveness of its procedures, and the quality and impact of its output. In a formal sense, the criterion of success is how effectively the body has carried out its assigned functions under the treaty. But the ultimate touchstone must be whether the body has effectively used the opportunities available to it to promote awareness and understanding of the rights guaranteed in its convention and to contribute directly or indirectly to the practical realization of these rights at the national level. At the same time, it is not the only actor or potential source of influence in seeking to achieve these goals.

11.2  The Committee and its work: an overview The nearly four decades since the Committee commenced its work8 and profile9 have seen a significant evolution. In its early years10 the Committee existed in geographical, institutional and substantive isolation from the Geneva-​based human-​rights organs of the UN and the other treaty bodies, and was the poor cousin of the Commission on the Status of Women within the then Branch for the Advancement of Women (part of the Centre for Social Development and Humanitarian Affairs in Vienna). During this period the Committee included a significant number of Eastern European members and the influence of Cold War politics meant that conservative attitudes tended to prevail over attempts to take expansive or innovative approaches to the Committee’s work. This start-​up phase was followed by a period (from the late 1980s) in which the number of states ratifying the Convention significantly increased, with a consequent 8 For earlier discussions of the work of the Committee, see the chapters on Articles 17 to 22 of the Convention by Ineke Boerefijn in CEDAW Commentary, above n 1, 475–​529; A Byrnes, ‘The Committee on the Elimination of Discrimination Against Women’ in A  Hellum and H Sinding Aasen (eds), Women´s Human Rights:  The CEDAW in International, Regional and National Law (Cambridge University Press, 2013) 25; B Delzangles and M Möschel, ‘Le Comité pour l’élimination des discriminations à l’égard des femmes: Trente ans d’activités en faveur des femmes’ in Roman, above n 1, 49; Schöpp-​Schilling, above n 3; A Byrnes, ‘The Convention on the Elimination of All Forms of Discrimination against Women’ in W Benedek et al (eds), The Human Rights of Women—​International Instruments and African Experiences (Zed Books, 2002) 119–​72; S Cartwright, ‘The Committee on the Elimination of Discrimination against Women’ in K Askin and D Koenig (eds), Women and International Human Rights Law: Volume 2 (Transational Publishers, 2000) 165; M Bustelo, ‘The Committee on the Elimination of Discrimination against Women at the crossroads’ in P Alston and J Crawford (eds), The Future of UN Human Rights Treaty Monitoring (Cambridge University Press, 2000) 79; R Jacobson, ‘The Committee on the Elimination of Discrimination against Women’ in Alston, above n 5, 444; Byrnes, ‘The ‘Other’ Human Rights Treaty Body: The Work of the Committee on the Elimination of Discrimination against Women’ (1989) 14 Yale Journal of International Law 1; and M Galey, ‘International Enforcement of Women’s Rights’ (1984) 6 Human Rights Quarterly 463, 475–​88. 9 See generally A Byrnes, ‘The Convention and the Committee: Reflections on their role in the Development of International Human Rights Law and as a Catalyst for National Legislative and Policy Reform’, paper presented at UN Commission on the Status of Women, 54th Session, New York, 1–​12 March 2010, available at: https://​ssrn. com/​abstract=1595490. 10 See E Evatt, ‘Finding a Voice for Women’s Rights: The Early Days of CEDAW’ (2002) 34 George Washington International Law Review 515.

396  Andrew Byrnes rise in the number of reports submitted for consideration by the Committee. Given the limited meeting time provided to the Committee, a backlog in reports developed, leading the Committee to call on States parties to provide it with additional resources and meeting time to help it to cope with its growing workload, the first of many such calls to come. There was increasing non-​governmental organization (NGO) interest in the work of the Committee. CEDAW began to be more aware of the work of the other treaty bodies, but it did not yet see itself as a full member of the family of international human rights treaty bodies. During this time the Committee initiated the development of a detailed jurisprudence of the Convention in the form of general recommendations. Overall, however, its profile and constituency were still limited. The early 1990s saw an increased momentum in efforts to put gender perspectives on the international human rights agenda.11 The 1993 Vienna World Conference on Human Rights, with its reaffirmation that ‘the human rights of women and the girl-​ child are an inalienable, integral and indivisible part of universal human rights’,12 and the 1995 Fourth World Conference on Women in Beijing,13 were of particular importance. The increased interest in gender issues and efforts to strengthen international mechanisms to address gender-​based human-​rights violations against women brought with them an increased interest in CEDAW and in strengthening its supervisory role, in particular by the adoption of a complaints procedure. During this period CEDAW’s secretariat moved to New York, and CEDAW itself became much more aware of the developments elsewhere in the UN human-​rights system and that it faced many problems in common with the other treaty bodies. During this period CEDAW’s profile was raised considerably, and more NGOs began to contribute to the work of the Committee. Following the Vienna and Beijing conferences, human-​rights concepts became a central part of the work of the Division for the Advancement of Women, and CEDAW’s importance increased within the UN institutional framework. The CEDAW secretariat was provided with additional resources to ensure that CEDAW was fully briefed on human rights developments. The Committee began to respond to increased NGO interest in its work and expanded the informal and formal opportunities for their input. It also began to place greater emphasis on the legal aspects of its work, in particular the development of its general recommendations. During this time the availability of information about the Committee and the Convention increased significantly, as did the community of those following CEDAW’s work. The efforts to elaborate a complaints procedure for the Convention gathered pace, resulting in the adoption of the Optional Protocol by the General Assembly in 1999.

11 See generally F Gaer, ‘And Never the Twain Shall Meet? The Struggle to Establish Women’s Rights as International Human Rights’ in B Lockwood et al (eds), The International Human Rights of Women: Instruments of Change (American Bar Association, 1998), 1–​89. 12 Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights, June 1993, A/​CONF.157/​24, 33, para 18. 13 Beijing Declaration and Platform for Action, in Report of the Fourth World Conference on Women, Beijing, September 1995, A/​CONF.177/​20 (1995).

Committee on the Elimination of Discrimination Against Women  397 By the early 2000s, the increase in the number of ratifications brought the Convention close to universal ratification, and the Committee began its work under the Optional Protocol. The Committee continued to become more closely integrated into the human-​rights framework of the United Nations, with close attention to developments elsewhere in the system,14 driven in part by the efforts towards harmonization of the human rights treaty bodies, and the Committee’s move to Geneva from New York in early 2008. In the last decade, the Committee has continued to develop its jurisprudence in the form of wide-​ranging general recommendations and under the complaints and inquiry procedures of the Optional Protocol. It has engaged with the various waves of treaty body ‘reform’ and ‘strengthening’ that have taken place over the last couple of decades, facing along with other committees the continuing challenges of the need to harmonize and streamline the human rights treaty body system without compromising its independence and the integrity and distinctiveness of its work.

(a)  The composition of the Committee The supervisory mechanism established by the Convention was modelled on those adopted under the Racial Discrimination Convention and the ICCPR. The Convention provides for the establishment of a committee of twenty-​three experts, making it, until early 2011, the largest of the treaty bodies.15 The Committee is established ‘[f]‌or the purpose of considering the progress made in the implementation of the Convention’. The Convention assumes that this task will be discharged through the examination of the reports submitted by States parties. The Committee must report annually on its activities to the General Assembly through the Economic and Social Council and may make ‘suggestions and general recommendations based on its examination of reports and information received from States parties’.16 The Convention also gives the Committee the power to invite the specialized agencies of the United Nations to supply it with relevant information.17 The members of the Committee are nominated and elected by the States parties from among their nationals for four-​year terms, with no restriction on re-​election.18 The members are to be ‘experts of high moral standing and competence in the field 14 The Committee has regular meetings with other relevant mechanisms, in particular the Special Rapporteur on Violence against Women (see the Framework of Cooperation adopted in 2018), the Working Group on Discrimination against Women in Law and Practice, as well as monitoring the developments in the other human rights treaty bodies. 15 The Subcommittee on the Prevention of Torture established under the Optional Protocol to the Convention against Torture increased in size from 10 to 25 members in January 2011 following the deposit of the fiftieth instrument of ratification or accession. 16 Article 21. As of 1 January 2019, some 20 of the 138 members of the Committee had served or were serving three or more four-​year terms, with Naéla Gabr (Egypt) commencing her fifth term and Rosario Manalo (Philippines) her fourth term. Hanna-​Beate Schöpp-​Schilling (Germany) (1989–​2008) and Kongit Sinegeorgis (Ethiopia)(1985–​2000) have been the longest-​serving members thus far. 17 Article 22. 18 Article 17.

398  Andrew Byrnes covered by the Convention’; they serve in their personal capacity, not as representatives of states. The Convention requires that in the election of the members ‘consideration be . . . given to equitable geographical distribution and the representation of different forms of civilization and the principal legal systems.19 The geographical distribution of the Committee’s membership has broadly conformed with the criteria laid down in the Convention.20 The speedy ratification of the Convention by countries from Eastern Europe in the early 1980s meant that during the Committee’s early years a quarter of the Committee members came from that region; there were only two members from Africa at that time. Since the late 1990s representation from the Western European and Asian groups has ranged from five to seven members each; there have been either five or six members from Africa; Latin America and the Caribbean has been represented by between two and four members; and Eastern European representation has varied between none and three members. As of 2017, against a background of almost universal ratification, the WEOG group was overrepresented, as it has been for much of the recent history of the Committee, but by early 2019 this had changed with African and Eastern Europe being slightly overrepresented.21 The backgrounds of Committee members have been diverse. They include sociology, medicine, dentistry, international relations, education, political science, psychology, communications, law, and government and foreign service.22 Nearly all the members of the Committee have been active in promoting gender equality, whether as academics, professionals, activists, or government officials (many of them in more than one of these capacities). Initially, there was a considerable number of lawyers on the Committee, but that dropped off during the 1990s to a level of about one-​third lawyers. However, in the last decade the number of lawyers has climbed back to around half of the committee members.23

19 Ibid. 20 See First Draft, Report of the Committee on the Elimination of Discrimination against Women (CEDAW) on the progress achieved in the implementation of the Convention, CEDAW/​C/​1995/​7 (1995), Annex, paras 167–​83, reproduced as Document 115 in The United Nations and the Advancement of Women 1945–​1995, United Nations Blue Books Series, vol 6 (1995), 511 [hereinafter CEDAW Draft Beijing Report]. 21 As of 1 January 2019 the percentage of members from particular regions compared with the percentage of States parties from those regions was WEOG (13 per cent and 14.8 per cent), Latin America and the Caribbean (13 per cent and 17.5 per cent), Asia and the Pacific (26.1 per cent and 27.0 per cent), Africa (30.4 per cent and 27.5 per cent), and Eastern Europe (17.4 per cent and 12.2 per cent): ‘Membership’, available at www.ohchr.org/​EN/​ HRBodies/​CEDAW/​Pages/​Membership.aspx. In 2015 the corresponding figures were WEOG (30.4 per cent and 14.8 per cent), Latin America and the Caribbean (17.5 per cent and 17.5 per cent), Asia (21.7 per cent and 27.0 per cent), Africa (21.7 per cent and 27.5 per cent), and Eastern Europe (8.7 per cent and 12.2 per cent): ‘Ratifications and membership of each treaty body, by region’, A/​70/​257, 9-​10, Table 3 (2015). 22 See CEDAW Draft Beijing Report, above n 20, paras 171–​75 and Table 3, as well as the curricula vitae of nominees for elections circulated for meetings of the States parties. 23 See ibid, para 172 (at the Committee’s first three sessions, 70 per cent of its members were lawyers, by 1993–​94, only 22 per cent were). In the 1996 elections, six out of seventeen nominees were lawyers; two were elected. In the 1998 elections fourteen of the twenty-​three nominees were lawyers; five were elected. From 1999 to 2001, seven of the twenty-​three members of the Committee were lawyers, with expertise primarily in domestic law rather than international law: see CEDAW/​C/​SP/​1996/​3 and Add. 1 (1996) and CEDAW/​C/​SP/​1998/​3 and Add. 1 (1998). The proportion of legally trained members of the Committee has increased since that time so that roughly half of the Committee have been lawyers since the 2006 elections. Available at www.ohchr.org/​EN/​HRBodies/​CEDAW/​ Pages/​Membership.aspx.

Committee on the Elimination of Discrimination Against Women  399 The range of professional backgrounds has made available to the Committee a breadth of knowledge that is important for assessing the implementation of the Convention. The smaller proportion of lawyers on the Committee during the 1990s was a mixed blessing. On the one hand, it meant that less attention was devoted to what might be considered sterile procedural matters (sometimes as a proxy for restricting the scope of the Committee’s activities), with the Committee tending to focus on substantive issues. On the other hand, it meant that the Committee was slow to come to the view that, as a body charged with the supervision of an international human rights treaty, it had an important legal role to play in its interpretation of the Convention and the development of jurisprudence under it. At the time of the drafting of the Optional Protocol, there was some speculation that States parties might wish to see a higher percentage of lawyers elected to the Committee in light of the juridical nature of the work under the Protocol; others speculated that the States parties might also wish to see a higher number of serving or former government officials on the Committee once it had the power to render decisions or institute inquiries. It is difficult to assess whether the increases in membership in both groups are directly due to States’ concerns about how the Committee would administer the Optional Protocol. The presence on the Committee of members who are government officials has also given rise to concern among some observers and civil society groups. For a period in the 2000s, the number of diplomats and government officials24 nominated and elected to CEDAW and other treaty bodies increased,25 with roughly a third of the Committee membership falling into this category (not counting judges). Many of these came from equal opportunity offices or women’s ministries. Of particular concern has been the presence of diplomats or high-​level political appointees on the Committee (notwithstanding that they may personally be strongly committed to women’s equality).26 Their presence has meant that the perspectives of government service and international expertise have been available to the Committee, but in the view of some commentators these advantages have not outweighed the drawbacks involved.27 The concern is that, where a member of the Committee is a serving diplomat or government official, the 24 The term ‘government official’ refers here to persons holding a full-​time position in the executive government of a state. It does not include persons holding judicial appointments, who would satisfy the requirements of independence, or the heads of independent statutory agencies (such as an equality commission). 25 Nine of the twenty-​three persons who served on the Committee from 1999 to 2000 could be categorized as government officials. Of these, five were serving diplomats, one a former diplomat; two were heads of offices for women’s affairs, and one a public prosecutor: see CEDAW/​C/​SP/​1996/​3 and Add.1 and CEDAW/​C/​SP/​1998/​3 and Add 1. The pattern continued a decade later, though appears to be less pronounced more recently. Following the 2010 elections there were four diplomats on the Committee (one of them on leave), and five other members who were government officials or recently retired government officials, generally in the area of equal opportunities or women’s equality. By early 2019, in addition to two judges, there were seven serving or retired government officials on the Committee (and one official of a government-​organised NGO or GONGO); two of these were former diplomats who were among the longest-​serving members and who had been members while holding diplomatic/​ foreign affairs positions. 26 In my earlier analysis, I was more sanguine about the impact of the presence of government officials on the Committee (see Byrnes (1989), above n 8, 10–​11). With the increase in this phenomenon and nominations now coming from a broader variety of states, my view is now closer to that of Galey (above n 8), notwithstanding the fact that there have been a number of diplomats who have made substantial contributions to CEDAW’s work. 27 Galey, above n 8, 478. See also Byrnes (1989), above n 8, 10–​11.

400  Andrew Byrnes independence and impartiality of the member may be affected by factors extraneous to the values and goals of the Convention; at the very least the appearance of independent review is compromised. The presence of government officials who have responsibilities in other fields (frequently the advancement of women) also gives rise to some concern, though less so than in the case of diplomats whose very occupation is bound up with the relations of their own State with other States, often in highly politicized contexts.28 This concern has been reflected by the meeting of the chairpersons of the treaty bodies on a number of occasions; that meeting recommended in 1997 that States parties ‘should refrain from nominating or electing to the treaty bodies persons performing political functions or occupying positions which were not readily reconciliable with the obligations of independent experts under the given treaty’,29 a view they reiterated in 2015.30 While this view was brought to the notice of States parties to the Convention, it does not seem to have inhibited their preparedness to nominate and elect serving government officials.31 Some NGOs and academics also believe that states which have taken exception to the independence of human rights bodies and which may wish to mute strong criticism have decided to nominate more serving or former public officials for election to those bodies. The 2012 meeting of the treaty-​body chairpersons adopted guidelines on the issue of the independence and impartiality of treaty-​body members for consideration and adoption by all treaty bodies.32 However, these are addressed primarily to the members of the treaty bodies themselves, rather than calling directly on States parties not to nominate candidates who hold government positions that might be seen as problematic. In 2014 the Committee decided ‘to systematically apply’ the Addis Ababa guidelines which it had previously decided to incorporate as an ‘integral part’ of its rules of procedure.33 All but six of the members of the Committee have been women.34 This is perhaps no surprise, since the membership of treaty bodies reflects one national selection process multiplied many times, and in most countries there is likely to be a higher percentage of women than men working on issues relating to women’s equality, thus making it more likely that a woman will be nominated. The overwhelmingly female membership of CEDAW must be seen in the context of the overall gender imbalance in the 28 In the case of small developing countries, the effect of disqualifying such officials may be to deny the committee the benefit of expertise from these countries. 29 A/​52/​407, para 68 (1997). 30 A/​70/​302, para 89 (2015). 31 At the 10th meeting of the States parties to the Convention in February 1998: see UN Press Release WOM/​ 1028, 4 (17 February 1998) (statement of the representative of the Secretary-​General). The states proceeded to elect 6 persons (out of 12 new members) who appeared to fall into the category concerned. Similarly, at the 14th meeting of the States parties in 2006, the Director of the Division for the Advancement of Women drew the attention of the meeting to these views, but 6 of the 12 persons elected fell into that category. The same pattern has been regularly repeated. 32 Guidelines on the independence and impartiality of treaty body members (Addis Ababa guidelines), A/​67/​222, annex (2012), endorsed by the General Assembly in resolution 68/​268, paras 35–​7 (2013). 33 Decision 59/​3, following up earlier Decisions 54/​8 and 57/​3. 34 As of early 2019, 138 persons had served or were serving as members of the Committee, available at: www. ohchr.org/​Documents/​HRBodies/​CEDAW/​Membership_​1982_​Present.pdf. Men who have been members have come from Sweden, the Netherlands, Finland, Norway, and Azerbaijan. A number of other men have been nominated but not elected.

Committee on the Elimination of Discrimination Against Women  401 treaty bodies.35 The majority of treaty-​body members are still male, though the number of women has increased in recent years.36 When the question of CEDAW’s women-​ only membership was raised in the late 1980s, part of CEDAW’s riposte was that it was premature to seek to achieve gender balance in CEDAW’s membership while the gender imbalances on the other committees had not been addressed.37 Any efforts to bring about a better gender balance on CEDAW must therefore go hand in hand with improving the situation on the other treaty bodies. While progress has been made in this regard, there is still a way to go and it is perhaps time for States parties to adopt more radical measures for elections to all the treaty bodies.38

(b)  The functions of the Committee and its meeting time The primary function of CEDAW is the consideration of reports submitted by States parties, and this task has taken up most of the Committee’s time. However, in addition to the review of reports, the Committee has over the years expanded the range of its activities. It has devoted increasing time to the elaboration of general recommendations, to providing input into the various UN world conferences and the subsequent review conferences, to the sustainable development agenda, and to liaison with specialized agencies and the other human rights mechanisms of the United Nations system.39 The entry into the force of the Optional Protocol has added a further dimension to the work of the Committee. As of early 2019, the Committee had held seventy-​two sessions since it began its work in 1982.40 Article 20 of the Convention provides that the Committee is to meet 35 See A Edwards, ‘Universal Suffrage and the International Human Rights Treaty Bodies:  Where are the Women?’ in M C Bassiouni and W Schabas (eds), New Challenges for the UN Human Rights Machinery (Intersentia, 2011) 151. For more detail see Gqaul: Campaign for gender parity in international representation, http://​www. gqualcampaign.org/​home/​. 36 As of 1 January 2019 there were 94 male and 78 female members of the human rights treaty bodies—​thus 45.3% women to 54.7% men (the corresponding figures as of April 2012 were 107 and 65, or 37.8% to 63.2%). CEDAW (21/​23) and the CRC (10/​18) had a majority of female members; only three of the other treaty bodies had 40–​49 per cent female members: available at: https://​www.ohchr.org/​Documents/​HRBodies/​TB/​Gender_​representation.docx. 37 See generally Byrnes (1989), above n 8, 8–​9, n 27. 38 For example, assuming that the treaties could be so construed to permit this, a meeting of the States parties could stipulate that no more than 60 per cent of the membership of each committee could be members of one sex, require that each State party nominate both one male and one female candidate for each election (stating their order of preference), and once the quota for men or women had been filled from the national ticket which received the highest number of votes, the remaining positions would be filled by the candidates of the other sex from the countries which have received the next highest tallies. 39 For a description of the activities of the Committee up to 1995, see Report by the Committee on the Elimination of Discrimination Against Women, Fourth World Conference on Women, A/​CONF.177/​7 (1995) [hereinafter CEDAW World Conference Report]. 40 The annual reports of the Committee are issued as a supplement (generally Supplement No 38) to the Official Records of the General Assembly. Documents from the earlier sessions of the Committee are to be found in United Nations, The Work of CEDAW:  Reports of the Committee on the Elimination of Discrimination against Women (CEDAW), volume 1 (1982–​1985) (1989) and United Nations, The Work of CEDAW: Reports of the Committee on the Elimination of Discrimination against Women (CEDAW), volume 2 (1986–​1987) (1990). Many documents of the Committee up to the end of 2007 can be found on the DAW website: http://​www.un.org/​womenwatch/​daw/​ cedaw/​. See in particular CD Rom on 25 years of work of the Committee on the Elimination of Discrimination against Women, available at http://​ www.un.org/​womenwatch/​daw/​cedaw/​cdrom_​cedaw/​EN/​files/​cedaw25years/​start. html. From 1 January 2008, the Office of the High Commissioner for Human Rights became the secretariat for

402  Andrew Byrnes ‘normally’ for only two weeks each year. This two-​week allowance quickly proved to be a gross underestimate of the time needed by the Committee to perform even its basic functions, and the Committee has directed regular requests to the States parties and the General Assembly for additional meeting time on both ad hoc and ongoing bases. Following the entry into force of the Convention, a steady stream of reports from many States parties began to come before the Committee, and it soon became clear that an annual two-​week session was not adequate to permit a proper review of the reports of States in a timely fashion. For the first fifteen years of its existence (1982–​1996) the Committee held its one mandated session per year but, from 1988 the General Assembly also permitted the Committee to meet for three weeks per year ‘on an exceptional basis’. This the Committee did until 1997, but the backlog of reports awaiting consideration persisted. Accordingly, from 1997 the Committee was permitted two three-​week sessions per year until the backlog of reports was cleared.41 Yet with the expansion of the number of States parties and the additional workload generated by the adoption of the Optional Protocol, this eventually became the norm. The Committee held two three-​week sessions each year from 1997 to 2005 (with an exceptional third session in 200242). In 2005 the General Assembly authorized the Committee to meet ‘as a temporary measure’ for three three-​week sessions per year, and ‘on an exceptional and temporary basis’ to sit in chambers during three of those sessions, in order to clear the backlog of reports (at that stage, fifty-​eight reports were awaiting consideration43). At the end of 2007, noting the continuing (though reduced) backlog of reports awaiting consideration,44 the Assembly once again agreed to extra meeting time for the Committee (though it granted only one of the two additional sessions requested for 2008–​2009, authorizing five sessions with three of them to be held in chambers).45 It also approved three annual sessions from 2010, though on an ‘exceptional basis’.46 Thus, the approach adopted in relation to the Committee’s meeting time until 2014 was that of allowing additional time on a temporary and exceptional basis to respond to large backlogs; these temporary extensions of meeting time in effect became permanent, and then further requests for additional meeting time were made and granted on a ‘temporary’ or exceptional’ basis. The Committee’s three three-​week sessions per the Committee and more recent documents are to be found at www.ohchr.org/​EN/​HRBodies/​CEDAW/​pages/​ cedawindex.aspx. Much of the documentation is also to be found at http://​www.bayefsky.com. 41 GA Res 51/​66 (1996). 42 GA Res 56/​229 (2001). 43 A/​62/​290, para 45 (2007). In 2006 the Committee had adopted a procedure for sitting in parallel chambers, Working methods for parallel chambers, Decision 35/​I, A/​61/​38, Part II, paras 364–​9 (2006), and CEDAW/​C/​2007/​ I/​4/​Add 1, paras 27–​8. While it used this procedure on a number of occasions, the Committee has not sat in chambers since 2010. 44 GA Res. 62/​218, para 13 (34 reports awaiting consideration); see also A/​62/​290, para 45 (2007). 45 This was in addition to the one-​week pre-​sessional working groups for each of those sessions, and ten days of meeting time for the Committee’s working group on communications that are also a regular part of the Committee’s meeting time. 46 GA Res 62/​218 (2007).

Committee on the Elimination of Discrimination Against Women  403 year, together with a one-​week pre-​sessional working group for each of those sessions, as well as three sessions annually for the Optional Protocol working group, is a long way from the two-​week annual session once a year provided for by the drafters of the Convention. The States parties had attempted to address the problem of inadequate meeting time on a more permanent basis in May 1995, by adopting an amendment to Article 20 of the Convention.47 This amendment provided that CEDAW should normally meet annually, but that the duration of its meetings would be determined by a meeting of States parties, subject to the approval of the General Assembly. The amendment has still not entered into force and seems unlikely to do so for some years, if at all.48 As a practical matter, as the issue of length and number of sessions is now dealt with by the General Assembly, the amendment appears an irrelevance; indeed, if it enters into force, the decision will effectively still reside with the General Assembly, due to the budgetary implications of additional meeting time. Changes to the allocation of meeting time and resources for the treaty bodies were introduced in 2014 by the General Assembly as a result of the ‘treaty body strengthening process’.49 The meeting time is calculated on the basis of the consideration of 2.5 reports per week (estimated on the basis of a historical average of reports received in the previous four years on a rolling four-​year basis), supplemented by an additional two weeks for other mandated activities and 1.3 hours per individual communication considered, as well as a margin that takes into account targeted increases in reporting compliance and is intended to prevent the recurrence of backlogs. From 2009 to 2012, the Committee received an average of twenty-​five reports per year;50 from 2012 to 2015, the annual average was 22.7, and 24 from 2014 to 2017.51 Since 2012, the Committee has considered an average of 25–​6 reports each calendar year. As of the end of 2015, the Committee had received forty-​four reports which it had not yet considered, a backlog that had remained constant since at least 2013.52 The Committee was allocated slightly more meeting time for 2018–​2019 than the amount to which it was strictly entitled under the criteria.53 While this may allow it to make some inroads into its backlog of reports awaiting consideration, a substantial backlog looks set to continue. The 2020 review of the treaty bodies may also introduce further changes.

47 GA Res 50/​202 (1995); CEDAW/​SP/​1995/​2. 48 To enter into force, acceptance by two-​thirds of the States parties to the Convention and consideration by the General Assembly is required: currently that means 126 acceptances are necessary. As of 15 March 2019 the amendment had been accepted by 78 States parties (29 of those since 2007): Multilateral treaties, above n 1. 49 GA Res 68/​268, para 26 (2014). 50 A/​71/​118, Annex III (2016). 51 A/​71/​118, Annex III (2016) and A/​73/​109, Annex III (2018). 52 CAT/​C/​59/​1, 2 (2016), supplemented by material on the OHCHR website, and A/​71/​118, Annex VIII. 53 A/​71/​118, Annex XII (2016) (14 weeks instead of 11.8 weeks). Despite the increase in work under the Optional Protocol, there is unlikely to be any increase in meeting time in 2020–​2021: A/​73/​109, Annex XVI (2018).

404  Andrew Byrnes

(c)  The reporting procedure Article 18 of the Convention obliges each State party to the Convention to submit regular reports ‘on the legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the . . . Convention and on the progress made’ in that regard. Initial reports are due within one year after the entry into force of the Convention for the State concerned and thereafter every four years or whenever the Committee so requests.54 The examination of State party reports is central to the Convention’s scheme of monitoring. Reporting procedures may serve a number of functions55—​ of particular importance is the opportunity that submission of a report provides for the scrutiny by governments and the national community of the extent to which the Convention has been implemented. The reporting process will have the greatest impact in a state if a number of conditions are fulfilled. These include the regular submission of good quality substantive reports, the availability to the Committee of independent information (whether from NGOs, specialized agencies, NHRIs, or through other channels), a critical analysis of the report to identify deficiencies in the implementation of the Convention, a frank discussion with an appropriately qualified government delegation, the production by the Committee of detailed substantive recommendations to the state, wide publicity for the process at the national level, and the broad dissemination of the results of the hearings, and follow-​up and monitoring at the national level as well as at the international level. The procedures of the Committee for the examination of reports have changed significantly over the years to reflect the increase in the number of reports being submitted, the fact that nearly all the reports submitted are now periodic reports, the greater involvement of NGOs and other actors in the review process, the need to make as efficient use as possible of its meeting time, and the move towards greater harmonization of the procedures of all the UN human rights treaty bodies.

54 Article 18. The Committee had requested that in general States parties should submit their second reports four years after their initial reports and every four years thereafter:  General Recommendation 1 (1986), and General Recommendation 2 (1987). It now indicates in its concluding observations when the next report should be submitted, generally four years after the adoption of the concluding observations. The Committee has occasionally, on an exceptional basis, requested reports from States where there appeared to be gross violations of women’s rights, including States of the former Yugoslavia, Rwanda. and Zaire (see A/​52/​38/​Rev.1, Part I, paras 344–​51 and Annex IV.E (1997), India (following the systemic violations in Gujarat) (CEDAW/​C/​IND/​SP.1 (2009)), Guinea (due 2009, submitted 2012), the Democratic Republic of the Congo (due 2010, submitted 2011), and Myanmar (due 2017, submitted 2018). See C Shalev, ‘State Reporting and the Convention on the Elimination of All Forms of Discrimination against Women’ in A Bayefsky (ed), The UN Human Rights Treaty System in the 21st Century (Kluwer, 2000) 23, 27–​9. Commentators are divided over the impact that treaty committees can have in cases in which serious violations are occurring in situations of war or social disintegration: see M O’Flaherty, ‘Treaty Body Innovation and Bosnia Herzegovina’ in Alston and Crawford, above n 8, 439 (who sees a positive role) and J Connors, ‘An analysis and evaluation of the system of State reporting’ in Bayefsky (ed), The UN Human Rights Treaty System in the 21st Century 23, 27–​93, 18–​20 (treaty bodies not particularly well-​positioned for such situations). 55 See generally Committee on Economic, Social and Cultural Rights, General comment No 1 (1989), HRI/​GEN/​ 1/​Rev.9 (Vol I), 1.

Committee on the Elimination of Discrimination Against Women  405 The Committee adopts different procedures for the consideration of initial reports and periodic reports, and since 2014 there have been two procedures available for the submission and consideration of periodic reports (the standard procedure and the simplified reporting procedure, described below).

(d)  Guidance given by CEDAW as to the contents of report The Committee has approved various guidelines indicating to states what it expects to be included in reports. Its earlier guidelines56 were superseded by the Harmonised guidelines on reporting to the international human rights treaty monitoring bodies adopted in 2006 (which cover the introductory part of the report—​the ‘common core document’—​suitable for submission to all the treaty bodies),57 together with the revised CEDAW-​specific reporting guidelines adopted by the Committee in 2008 to reflect the change in the contents of the common core document states are asked to submit under all the treaties to which they are party.58 The initial report is to provide a comprehensive description of the situation of women in the country and establish a baseline against which progress can be measured in future reports. Subsequent reports are meant to identify the progress and other changes made since the earlier report. In the case of the simplified reporting procedure offered to some states from 2015, reports were expected to respond to the specific issues identified in the List of Issues provided to them by the Committee. Of particular importance are the Committee’s insistence that reports describe not just the de jure situation of women, but also the de facto situation, that they include statistics disaggregated by sex wherever available, and that reports describe not just the advances but also the lack of progress in the implementation of the Convention. As under the other treaties, the quality of reports submitted by States parties has varied widely, from brief, rather cursory reports to lengthy and detailed assessments of the implementation of the Convention. The current guidelines thus provide general guidance as to the form and structure of reports and specify certain issues that need to be addressed. The guidelines are supplemented by the Committee’s General recommendations, adopted under Article 21 of the Convention. The Committee has also expanded the scope of reporting to request States parties to report on other major documents of relevance to the Convention, for example the Beijing Platform for Action,59 and the Sustainable Development Goals.60

56 Harmonised guidelines for the initial part of reports by States parties under the various treaties agreed to by all the UN treaty bodies (the common core document), HRI/​GEN/​2/​Rev.6, Chap I (2009) and Guidelines for the preparation of reports (covering initial and periodic reports) (2002), A/​57/​38, Part II, Annex (2002); HRI/​GEN/​2/​ Rev.4, Chap V, 62–​7 (2007). 57 See HRI/​MC/​2006/​3; HRI/​GEN/​2/​Rev.6, paras 1–​59 (2009). 58 Decision 40/​I. Convention-​specific reporting guidelines of the Committee on the Elimination of Discrimination against Women, A/​63/​38, Part I, Annex I (2008) and HRI/​GEN/​2/​Rev.6, 65–​71 (2009). 59 A/​51/​38, para 335 (1996). 60 Decision 66/​7 (2017).

406  Andrew Byrnes

(e)  Status of submission of reports The functions of the reporting procedure can only be fulfilled if states do in fact report. The situation under the Convention is similar to that under the other United Nations human rights treaties: many states have fallen behind with their reporting obligations and are overdue in their submission of reports.61 As of 31 December 2017, there were four overdue initial reports under the Convention and forty-​five overdue periodic reports.62 This represents a significant improvement on just a few years earlier.63 CEDAW has sought to address the failure of states to submit reports by issuing reminders, meeting with permanent representatives of States parties, urging States parties to seek technical assistance, and publishing lists of delinquent States. These steps have had only limited success. More impact appears to have come from the Committee’s decision to permit States, ‘on an exceptional basis and as a temporary measure’, to combine outstanding reports into one report.64 Many states have taken up this offer, in some cases combining as many as five or six overdue reports into one.65 This approach has the advantage of bringing States up to date in the reporting cycle, but it remains to be seen whether once this has happened States parties will submit their future reports in a timely fashion. The Committee now specifies in its Concluding Observations the date for a state’s next report and has indicated on a number of occasions to a State party that it should submit combined reports as its next report.66 The Committee’s 2014 decision to test the ‘simplified reporting procedure’ may also assist in states’ fulfilling their reporting obligation. This procedure, pioneered by the Committee against Torture, involves the Committee offering States parties with overdue periodic reports the opportunity to respond to a list of issues drawn up by the Committee (and limited to twenty-​five paragraphs and seventy-​five questions) and to treat those responses as the state’s report for the relevant period. This offer is dependent on the State party’s having submitted a common core document within the last five years, or more recently if there have been significant political or socioeconomic changes in the country.67 The Committee offered this option to States parties in 2015, and it was initially taken up by about half a dozen countries.68 The Committee decided 61 See CEDAW/​C/​2008/​III/​2, Annex I and HRI/​MC/​2006/​2, Annexes  1–​3. 62 HRC/​MC/​2018/​2, Tables 7  and  8. 63 As of 27 August 2008, there had been 215 reports overdue from 125 States parties, of which 30 were initial reports: A/​62/​290, para 13 (2007). A decade earlier, 60 initial reports had not been submitted by the due date: as of 1 August 1998, 121 States parties were overdue with their reports, and 48 owed more than one report (figures based on A/​53/​318, Annex VIII). See A Bayefsky, ‘Making the Human Rights Treaties Work’ in L Henkin and J Hargrove (eds), Human Rights: An Agenda for the Next Century (American Society of International Law, 1994) 229, 233–​4. 64 Decision 16/​III, A/​52/​38/​Rev.1, 1 (1997); Rules of Procedure, rule 49(3), HRI/​GEN/​3/​Rev.2; Decision 23/​II. 65 Well over half of the reports considered by the Committee at its 46th to 51st Sessions (2010–​2012) were combined reports. By 2017–​2018 the number of combined reports considered was about 40 per cent of the overall reports considered (which by that stage also included three reports a year under the simplified reporting procedure). 66 See, eg, A/​61/​28, paras 472, 545, 623. 67 Decision 58/​II and 59/​IV. 68 www.ohchr.org/​EN/​HRBodies/​CEDAW/​Pages/​ReportingProcedures.aspx (Belarus, Ireland, Israel, Luxemburg, Romania).

Committee on the Elimination of Discrimination Against Women  407 in 2017 to suspend the procedure in order to review its operation, but reintroduced it in 2018. Though there is significant interest among States parties in using this procedure because it represents less of a burden for them, the Committee decided to offer it to a maximum number of three states per session,69 presumably because of the extra work it involves for the Committee itself and the Secretariat.70 Another alternative is, in the case of States parties which are seriously delinquent, to schedule reviews of the situation in those countries in the absence of a report, an approach adopted by some of the other treaty bodies. In 2007, after some years of discussion, the Committee indicated to a number of States parties with seriously overdue reports a date for submission of those reports and the intended date for consideration of the reports by the Committee. It also warned that it would ‘as a measure of last resort, and failing the receipt of the reports within the suggested time frame . . . proceed with consideration of the implementation of the Convention in the States parties concerned in the absence of a report’.71 In January 2009 the Committee held its first review of a country (Dominica) without a report but with a delegation present.72 In 2012 it indicated to a number of other States it would adopt this approach if reports had not been received by the stipulated deadline.73 In most cases this resulted in the submission of a report by the State party concerned, with a review taking place in the normal way. i. Before the dialogue After the Committee has received a state report, it schedules the report for consideration at a future session, appoints a country rapporteur,74 and schedules the report for initial consideration by its pre-​sessional working group. The Committee’s pre-​sessional working group75 carries out an initial review of a report, normally two sessions before it is scheduled for consideration by the plenary Committee, and prepares a list of 69 CEDAW/​C/​SR.1655, para 5 (2018). 70 In each of 2017 and 2018 only three States parties per year were considered under the simplified procedure. 71 A/​62/​290, para 15 (2007); CEDAW/​C/​2008/​I/​4, para  13. 72 Report on the working methods of the human rights treaty bodies relating to the State party reporting process, Note by the Secretariat [Treaty body working methods 2011], HRI/​ICM/​2011/​4, para 92. See CEDAW/​C/​DMA/​CO/​ AR (2009). 73 See, eg, Decision 51/​I, A/​67/​38 Part III, 67 (2012) (notice to Antigua and Barbuda; Barbados; St Kitts & Nevis; and Trinidad and Tobago—​all owing multiple reports). Trinidad and Barbados each submitted reports in 2015 which were subsequently reviewed, in 2016 and 2017 respectively. The Committee drew up a list of issues for Antigua in 2016, prompting that state to submit its combined fourth to seventh reports in 2017, twenty years after its submission of combined initial, second, and third reports: CEDAW/​C/​ATG/​4-​7 (2019). St Kitts & Nevis appears neither to have submitted a report nor to have been reviewed by the Committee in the absence of a report. The Committee has adopted a similar approach in relation to the non-​submission of exceptional reports: see, eg, Decision 71/​3 (2018) in which it indicated its intention to proceed with an examination of the situation of Rohingya women and girls in Northern Rakhine State in the absence of the report requested from Myanmar. The report was submitted three weeks before the scheduled review: CEDAW/​C/​MMR/​EP/​CO/​1 (2019). 74 The country rapporteur plays a leading role at the stage of pre-​sessional review (by submitting a draft list of issues and questions to the pre-​sessional working group), during the review by providing the Committee with guidance as to the principal issues that need to be addressed, and in the formulation of draft concluding comments:  Guidelines on the role and function of country rapporteurs, A/​61/​38, paras 388–​99 (2006). The Committee also appoints a country taskforce of between nine and twelve members to assist in the dialogue with the State party. 75 Since 1998 this working group has met at the end of each session, the change being was intended to give States time to provide written answers to the Committee’s questions on their reports (and thus avoid the need to spend hours of meeting time reading out answers): Suggestion 16/​2, A52/​38, at 2 (1997); Suggestion 18/​I, A/​53/​38/​ Rev.1, 3.

408  Andrew Byrnes questions which is sent to the State party. The working group is normally made up of five members meeting for one week following each session. The working group meets in private and considers material put before it by the country rapporteur, and the secretariat, as well as written material provided by specialized agencies, national human rights institutions (NHRIs), and NGOs. The working group also meets with representatives of UN entities who wish to appear, as well as with NGOs and NHRIs who wish to meet the working group to brief it on the situation in a particular country; it also draws on information provided by UN country teams. The list of not more than thirty questions is sent to the State party, which is asked to respond (in no more than 25–​30 pages) within six weeks, in time for the material to be translated and circulated before the review.76

(f)  Consideration of reports The review of a state’s report by the Committee takes place in a public meeting to which representatives of the State party are invited and which they are expected to attend, though the Committee has made use of video-​conferencing to allow delegations (and NGOs) to participate in a review.77 The procedure is not intended to be a judicial or quasi-​judicial process in which CEDAW pronounces authoritatively on the extent of the state’s compliance with the provisions of the Convention. Rather, it is an occasion for the state to identify the progress it has made, and the obstacles that it faces, in implementing the Convention, and to discuss this with the Committee, in what has become known in UN jargon as a ‘constructive dialogue’.78 Nonetheless, this does not mean that the Committee’s consideration of a state report involves an uncritical and mutually congratulatory discussion of the report. Individual committee members, and indeed the Committee as a whole, are regularly critical of either the technical limitations of a state report (for example, failure to comply with the Committee’s guidelines, thus depriving the Committee of the information on which to base its evaluation of progress made in the country concerned), or the substantive position in the country as revealed in the report (and also frequently more clearly in non-​governmental reports). Both in individual comments and in the Committee’s collective concluding observations on a report, extremely critical assessments have been made, although the Committee seeks to express a balanced view. At the same time there is a perception among some observers that the Committee has been too often uncritical in its praise for a State party’s performance in the dialogue when that has fallen short of 76 See Overview of the working methods of the Committee on the Elimination of Discrimination against Women in relation to the reporting process [CEDAW Working Methods Overview 2009], CEDAW/​C/​2009/​II/​4, Annex III, paras  6–​9. 77 A/​63/​38, Part I, Annex I, K1, para 31 (2008); Rules of Procedure, rule 51(4). The Committee may proceed to examine the report in the absence of a State party representative if the State fails to appear on a second occasion (rule 51(5)). On participation of states and other stakeholders by video-​conferencing, see A/​73/​309, Annexes XII and XIII (2018). 78 A/​63/​38, Part I, Annex I, K1, para 31 (2008).

Committee on the Elimination of Discrimination Against Women  409 the required standard of substantive engagement with the Committee’s questions (Sri Lanka is a recent example). CEDAW does not permit experts to participate in any aspect of the consideration of a report from their own states.79 When the Committee met in chambers and the State party of which a member is a national was reporting, it assigned that member to the chamber which was not reviewing her state’s report.80 This has the advantage of ensuring the impartiality of the Committee’s consideration, as well as protecting members from real or perceived pressure to play a role of advocate for their countries rather than that of an independent expert. The Committee now adopts a similar procedure for its consideration of initial and subsequent reports. As mentioned above, once a report is scheduled for consideration, the Committee designates a country rapporteur who works together with a country task force of between nine and twelve members, who largely carry the responsibility for the questioning of an individual State party. The country rapporteur is an important person for non-​governmental organizations to contact and provide with information well before the session at which their country’s report is to be considered. The Committee schedules two sessions for each initial and periodic report.81 Country representatives are permitted up to thirty minutes to introduce the report. Questioning then follows by country task force members, who are limited in the number and duration of interventions they may make. These procedures have made the questioning by the Committee much more focused and efficient, and have cut down on duplication of questions and lengthy interventions. In the case of initial reports, the questioning proceeds largely article by article (with Articles 1 and 2, 7 and 8, and 15 and 16 considered together), with the state responding to the Committee’s questions on individual articles. For periodic reports questions are put to the state in clusters (Articles 1–​6, 7–​9, 10–​14,82 and 15–​16), with a group of questions being followed by answers from the state representatives. State representatives are expected to respond during the meetings to the questions put to them. The quality of the discussions is directly influenced by the nature of the delegation sent by a state.83 The Committee emphasizes that the delegation should be made up of members with expertise in the areas covered by the Convention so as to ensure an informed discussion with the Committee.84 It welcomes the attendance of delegations from capitals with high-​ level ministerial representation backed by expert civil servants. For example, it was complimentary of Ghana’s delegation to the hearing on that country’s third to fifth combined report. This included the Minister for Women 79 Decision 18/​III, A/​53/​38 (Part I), para 436 (1998), at 1. See similar views expressed by the eighth meeting of the Chairpersons of the human rights treaty bodies, A/​52/​507, annex (1997), para 67 (reiterating earlier views). 80 Decision 35/​I, A/​61/​38, part II, 87 (2006). 81 Previously on separate days but now on the same day (the only one of the treaty bodies to do so). This makes it difficult for delegations to obtain information from capitals in response to questions. 82 From 2019, questions on Articles 10, 11, and 12 were to be posed and answered separately: Decision 71/​16 (2018). 83 The focus of questions and the knowledge and attitude of the State party can often be seen more clearly in the summary records of the meeting with the Committee than in the Concluding Observations. 84 A/​63/​38, Part I, Annex I, K3, para 33.

410  Andrew Byrnes and Children’s Affairs, and ‘representatives of different departments with expertise in a broad range of areas covered by the Convention’.85 The Committee is generally less than impressed where the delegation consists only of the local diplomatic representatives, who may have no particular expertise in the areas covered by the Convention. While reasonably flexible, the Committee expects delegations to be prepared to answer questions and it has been critical of even high-​level delegations when those present are unable to respond to questions—​as was, for example the case with Azerbaijan, where the Committee ‘regretted’ that the delegation was ‘unable to adequately respond to a number of issues raised and questions posed by the Committee’.86 Following the meetings with the State party, the Committee holds a closed meeting to consider the issues that should be included in its Concluding Observations, on the basis of proposals put forward by the country rapporteur and the views of other members. The country rapporteur, in conjunction with the secretariat, prepares draft Concluding Observations (previously called Concluding Comments), and the Committee adopts those observations by the end of the session. They are then sent to the State party and made available to the public. The Committee stated in 2008 that its objective was ‘to formulate detailed concluding observations, with concrete, achievable, but non-​prescriptive recommendations’.87 They are a critical document, since they encapsulate the Committee’s view of the ­priority areas for action in the implementation of the Convention in the country concerned, as well as providing detailed recommendations for action. It is this document which NGOs at the national level can use to lobby governments, legislatures and other decision-​makers to adopt the changes recommended by the Committee. The Committee has adopted a standard structure for its Concluding Observations;88 this comprises a list of relevant headings89 to be used in the document (‘flexibly and as appropriate for the State party concerned’90). There are a number of standard paragraphs that now appear in virtually all Concluding Observations,91 as well as comments that are focused specifically on the situation in individual States parties.92 The Concluding Observations now consist of an introduction, and sections on ‘positive aspects’, emphasizing the importance of the Sustainable Development Goals and 85 CEDAW/​C/​GHA/​CO/​5, para 3 (2006). See also CEDAW/​C/​SGP/​CO/​4/​Rev.1 (2011) (Singapore) and CEDAW/​C/​BWA/​CO/​4, para 3 (2019) (Botswana). 86 CEDAW/​C/​AZE/​CO/​3, para 2 (2007). 87 A/​63/​38, part II, para 418 (2008). 88 See also ‘Framework for the concluding observations’, A/​ 69/​ 285/​ Annex II (2014), proposed by the Chairpersons of the treaty bodies and adopted by the Committee in Decision 60/​7 (2015). 89 Decision 41/​II, A/​63/​38, part II, Annex X, 261 (2008) and Decision 65/​V, A/​72/​38, 24 (2017). 90 Decision 41/​II, A/​63/​38, part II, 88. 91 These include a reminder of ‘the obligation of the State party to systematically and continuously implement all the provisions of the Convention and views the concerns and recommendations identified in the present concluding observations as requiring the priority attention of the State party between now and the submission of the next periodic report’; references to the role of Parliaments in implementing the Convention, the need to disseminate information about the Convention, the Optional Protocol and Concluding Observations; the need to ratify the Optional Protocol and the amendment to Article 20 of the Convention (where this has not been done); and the implementation of the Beijing Platform for Action and the Sustainable Development Agenda. See, eg, CEDAW/​C/​BWA/​CO/​4 (2019) (Botswana) and CEDAW/​C/​AUS/​CO/​8 (2018) (Australia), CEDAW/​C/​DEU/​CO/​ 7-​8 (2017). 92 See CEDAW Working Methods Overview 2009, above n 76, para 21.

Committee on the Elimination of Discrimination Against Women  411 the role of Parliaments in implementing the Convention, and identifying ‘principal areas of concern and recommendations’ in relation to the problems identified by the Committee. The Concluding Observations also identify up to four recommendations that the State party is requested to update the Committee on within two years, and call on the State party to disseminate the observations and stipulate the date for the next report to be submitted by the State party. Following the transmission of the Concluding Observations to the States parties concerned, it is open to states to submit their comments on them. Prior to the adoption in 2008 of a follow-​up procedure,93 there was no formal procedure for receiving and dealing with these comments: they were circulated to Committee members and acknowledged in the annual report,94 with the more recent comments being posted on the website of the OHCHR.95 Relatively few States had taken the opportunity to provide comments directly in response to the Concluding Observations.96 The Committee’s follow-​up procedure provides the opportunity for a State party to respond to the specific Concluding Observations on which a response is requested (the response being circulated as an official document), but also presumably on other matters, though to date the responses do not appear to have gone beyond the recommendations specified. The government responses and any further exchanges between the Committee and the State party are made public on the OHCHR website.97

(g)  Follow-​up procedure on Concluding Observations Following up the constructive dialogue and the substantive recommendations made by the Committee in its Concluding Observations is of critical importance to the effectiveness of the reporting procedure. For the first decade or so of the Committee’s history, the question of follow-​up had been left largely to one side:  the Committee, having delivered its views on the situation in a state, left it to the state to consider those recommendations, and relied on the state and interested NGOs to disseminate them. There was no monitoring of whether a state had submitted the promised information or publication of it if the state did submit it, nor any substantive monitoring of whether the state had implemented any of the Committee’s recommendations.

93 Treaty body working methods 2011, above n 72, para 85. 94 Decision 21/​II, A/​54/​38/​Rev.1, 45. See Treaty body working methods 2011, above n 74, para 79. 95 See for example, Comments from the Republic of Belarus concerning the concluding observations issued by the Committee on the Elimination of Discrimination against Women (CEDAW/​C/​BLR/​CO/​7), Diplomatic Note, 22 February 2011, available at www2.ohchr.org/​english/​bodies/​cedaw/​docs/​Noteverbale22-​02-​11_​Belarus_​ CEDAW48.pdf. 96 See, eg, three states in 1999 (Greece, Mexico, and China: see A/​54/​38/​rev.1, Annex VII (1999)) and three States in 2007 (Chile, China, and Mauritania: see A/​62/​38, annex XI), two from the 39th to 41st Sessions (Republic of Korea and Lebanon: A/​63/​38, part II, Annex VII (2008)); Bahrain and Rwanda (A/​64/​38, part II, Annex IX (2009)); six at the end of the 44th Session (Azerbaijan, Denmark, Japan, Switzerland, Timor-​Leste, and Tuvalu); and three at the end of the 45th Session (Netherlands, Ukraine, and the United Arab Emirates: A/​65/​38, part I, Annex X). See also above n 97 (Belarus). 97 http://​tbinternet.ohchr.org/​_​layouts/​TreatyBodyExternal/​FollowUp.aspx?Treaty=CEDAW&Lang=en.

412  Andrew Byrnes In some cases, however, the Committee has used its power to request additional reports from States parties to follow up on issues of particular concern. One example is the request made to India in 2007, when the Committee, not satisfied with the information provided in its report and the dialogue on the impact on women of the Gujarat massacre, requested an additional follow-​up report to be submitted in January 2008, and specified the issues that needed to be addressed.98 It made a similar request of the Netherlands in connection with limitations in its report relating to the Netherlands Antilles.99 But until 2008, the Committee did not have a formal follow-​up procedure applicable to all States parties; the review of a country’s next report was in most cases the only systematic review by the Committee of the extent of implementation of its recommendations. In 2008 the Committee decided to introduce a follow-​up procedure for Concluding Observations. This involves requesting that States parties implement specified recommendations in the Concluding Observations and report within two years on the steps taken to do so.100 The Committee also appointed a Rapporteur for Follow-​up, who reports to the Committee on the responses received, and writes to (and may meet with) States which are overdue with their responses. The process is transparent, with the States parties’ responses and the Committee’s replies being made available on the Committee’s website.101 The Committee’s follow-​up procedure has provided an opportunity for the dialogue between the Committee and the State party (and other stakeholders such as NGOs, who have also submitted material under the procedure) to continue beyond the one-​ off engagement that otherwise culminates in the public hearings. In the period 2011 to 2016, 92 of the requested 120 follow-​up reports were received, more often than not after a number of reminders; information was also received from NGOs, NHRIs and UN country teams.102 The Committee’s Rapporteurs on Follow-​up have been insistent in their follow-​up and reasonably demanding in their assessment of the extent to which recommendations have or have not been implemented.103 They have been forthright in cases where the State party has failed to act or to provide relevant information; in some cases an additional request for information has been made, or further exchanges have been deferred until the State party’s next report. The Committee assesses whether the relevant recommendations have been ‘Implemented’, ‘Substantially implemented’, ‘Partially Implemented’, or ‘Not 98 See CEDAW/​C/​IND/​CO/​3, paras 97–​8 (2007). Requested in January 2007, the report was received in July 2009: CEDAW/​C/​IND/​CO/​SP.1, para 2 (2010). 99 CEDAW/​C/​NLD/​CO/​4, para 46 (2007). 100 Decision 41/​I II, A/​6 3/​3 8, part II, 88 (2008). ‘Information on the follow-​up procedure (adopted 18 November 2015)’, http://​t binternet.ohchr.org/​Treaties/​CEDAW/​Shared%20Documents/​1 _​Global/​I NT_​ CEDAW_​FGD_​7103_​E.pdf and HRI/​MC/​2 014/​4, paras 24–​3 2. 101 ‘Follow-​ up to concluding observations procedure’, available at:  http://​tbinternet.ohchr.org/​_​layouts/​ TreatyBodyExternal/​FollowUp.aspx?Treaty=CEDAW&Lang=en. 102 CEDAW, ‘Assessment of the follow-​ up procedure adopted on 11 November 2016’ [2016 Follow-​up Assessment], 4, https://​tbinternet.ohchr.org/​Treaties/​CEDAW/​Shared%20Documents/​1_​Global/​INT_​CEDAW_​ FGD_​8161_​E.pdf. 103 See, eg, the letters sent by the Rapporteur for Follow-​up of 19 February 2010 and 4 November 2011 to Kyrgyzstan and the additional information provided by Kyrgyzstan (CEDAW/​C/​KGZ/​CO/​3/​Add.1 (2011).

Committee on the Elimination of Discrimination Against Women  413 implemented’, or concludes that there is a ‘Lack of information received to make an assessment’;104 or more recently that ‘Information or measures taken are contrary to or reflect rejection of the recommendation’. The Committee may then request further information or clarification or recommend technical assistance.105 In its assessment of the 2011–​2016 period,106 the Committee considered that 18 per cent of the recommendations had been implemented, 37 per cent had been partially implemented, 26 per cent had not been implemented, and in 20 per cent of cases insufficient information had been received to allow an assessment. This is something of a mixed record, though the procedure has had the effect of keeping pressure on states; whether it achieves real change is something that can be better assessed over a longer period.107 The Committee has concluded that, while resource-​intensive, the procedure has been ‘serving its stated purpose as a tool of implementation of the Convention and, more specifically, of the identified recommendations set out in the relevant concluding observations’ and is ‘an effective reporting mechanism’ that enabled the Committee ‘to monitor progress achieved between reporting cycles’.108

11.3  Developing a jurisprudence of the Convention The Convention was drafted during the 1970s and reflects the concerns and thinking of that era (and insofar as it codified many earlier provisions, of earlier eras). Analyses of violations of women’s human rights have developed significantly since that time. Some of today’s priority issues (such as violence against women) were not high on the international agenda in the 1970s. There have also been many developments which have posed new threats to women’s enjoyment of their human rights (such as AIDS, globalization, and climate change), though much of the discrimination that women face today is the same as they have faced for decades. The challenge facing CEDAW has been to ensure that the Convention continues to address contemporary violations of women’s human rights. The Committee is able to interpret the Convention in a dynamic fashion through its questioning of States parties during its consideration of reports, the adoption of General recommendations, and in its work under the Optional Protocol. The Committee has not adopted a narrow approach to interpreting the treaty, but has used its limited interpretive powers to ensure that the provisions of the Convention are applied to serious violations, both old and new.109 Its use of General recommendations has become an increasingly important part of that process. 104 2016 Follow-​up Assessment, above n 102, 2, See for further details Decision 54/​IX (Methodology of the follow-​up procedure to Concluding observations), A/​68/​38, Annex III, para 3 (2013), as amended by Decision 68/​ 6 (2017). 105 A/​68/​38, Annex III, para 5 (2013). 106 2016 Follow-​up Assessment, above n 102. 107 A/​67/​38, part II, para 18 (2012). 108 2016 Follow-​up Assessment, above 104, 6. This largely reiterates its 2012 assessment of the procedure: A/​67/​ 38, part II, para 18 (2012). 109 See generally Byrnes in Benedek et al, above n 8.

414  Andrew Byrnes

(a)  General recommendations Article 21 of the Convention provides that the Committee may ‘make suggestions and general recommendations based on the examination of reports and information received from the States parties’. CEDAW has used its power to make general recommendations to elaborate its understanding of particular articles of the Convention, or of how the Convention applies to thematic issues (such as violence against women). These General recommendations have become an important resource for those working with the Convention. As of the end of 2018, the Committee had adopted 38 General recommendations,110 with work underway on at least one other draft general recommendation.111 While the early General recommendations were brief, modest in scope and of somewhat limited utility, in 1992 the Committee embarked on a new stage in the elaboration of general recommendations, from that time on adopting more detailed and sophisticated interpretations of specific articles or themes.112 The Committee’s General recommendations (Nos 1–​17) were in the form of resolutions, but since General recommendation 19 (1992) the Committee has, with only a couple of exceptions,113 adopted a more expository (and increasingly discursive) format, using General recommendations as a means of articulating its understanding of the Convention in detail and making recommendations to States parties as to the steps they should take. The Committee has adopted two important General recommendations addressing the scope of operation of the Convention and States parties’ obligations under it, notably General recommendation 25 (2004) (the concepts of equality and discrimination and temporary special measures) and General recommendation 28 (2010) (the nature of States parties’ general obligations under Article 2). It has also addressed a range of specific issues arising under particular articles of the Convention: equality in marriage and the family (General recommendation 21 (1994)) and the economic consequences of marriage, family relations and their dissolution (General recommendation 29 (2013); women in political and public life (General recommendation 23 (1997)); women and health (General recommendation 24 (1999)); the rights of rural women (General recommendation 34 (2016)); women’s access to justice (General recommendation 33 (2015)) and girls’ and women’s right to education (General recommendation 36 (2017)).

110 For the text, see www.ohchr.org/​EN/​HRBodies/​CEDAW/​Pages/​Recommendations.aspx. 111 As of early 2019 the Committee was working on a draft General recommendation on trafficking of women and girls in the context of global migration, available at:  www.ohchr.org/​EN/​HRBodies/​CEDAW/​Pages/​ GRTrafficking.aspx. 112 H B Schöpp-​ Schilling, ‘Die Allgemeine Empfehlungen des Ausschusses für die Beseitigung der Diskriminierung der Frau’ in Deutsches Institut für Menschenrechte (ed), Die ‘general comments’ zu den VN-​ Menschenrechtsverträgen: deutsche Übersetzung und Kurzeinführungen (Nomos, 2005) 413, 421–​2. 113 General recommendation 20 (1992) (reservations to the Convention), and General recommendation 22 (1995) (amendment of Article 20 of the Convention). Conversely, the Committee has set out its substantive views on reservations in two statements, one of which has been incorporated in reporting guidelines, and one of which was a statement of the Committee as a contribution to the 50th anniversary of the Universal Declaration of Human Rights in 1998.

Committee on the Elimination of Discrimination Against Women  415 The Committee has also adopted a number of recommendations on cross-​cutting themes, including on violence against women (General recommendation 12 (1989), General recommendation 19 (1992), and General recommendation 35 (2017)); women migrant workers (General recommendation 26 (2008)); older women and protection of their human rights (General recommendation 27 (2010)); women in conflict prevention, conflict and post-​conflict situations (General recommendation 30 (2013)); gender-​ related dimensions of refugee status, asylum, nationality, and statelessness of women (General recommendation 32 (2014)) and gender-​related dimensions of disaster risk reduction in the context of climate change (General recommendation 37 (2018). Of particular note is the joint General recommendation adopted with the Committee on the Rights of the Child on harmful practices (Joint general recommendation No 31 of the Committee on the Elimination of Discrimination against Women and No 18 of the Committee on the Rights of the Child (2014)), the first instance of such collaboration.114 Each of these General recommendations sets out in detail the Committee’s understanding of the meaning of articles of the Convention and makes detailed recommendations to States parties about the steps necessary to fulfil their obligations under the treaty. Although as a formal matter of international law these general recommendations are not binding on States parties,115 nevertheless they are considered as influential interpretations of the treaty; some have been invoked before courts and tribunals, though less frequently than the General comments of the Human Rights Committee. The CEDAW Committee certainly invokes them as authoritative in its consideration of individual communications and also in what it requires of States parties in their reports and during the dialogue with them. Since the mid-​1990s the Committee has cast many of its General recommendations in a more discursive style, in which it provides political and social analysis as background to its exegesis of the Convention. The CESCR and the CRC have adopted a similar style in some of their general comments, while the HRC has adopted a more tightly structured, positivist expository style, though its recent General comments have also become quite lengthy. While the CEDAW Committee views this contextual material as important to ground its legal interpretation of the Convention, this style may tend to lessen 114 In 2019 the Committee decided to request the CRC to agree to proposed amendments to the General recommendation to remove the possibility of approval of marriage of persons under eighteen: Decisions 72/​6 and 72/​7 (2019). The Committee has also sought to align its procedures with those of the other treaty bodies where appropriate, and has also issued joint statements with other committees and mechanisms. In 2018 it issued a joint statement with the Committee on the Rights of Persons with Disabilities on ‘Guaranteeing sexual and reproductive health and rights for all women in particularly women with disabilities’ (29 August 2018), which intriguingly makes no reference to the contentious issue of abortion in cases where there is ‘severe foetal impairment’. See the discussion in Human Rights Commission for Judicial Review (Northern Ireland: Abortion) (Rev 1) [2018] UKSC 27, [28]–​[31]. The Holy See, which is a party to the CCRC but not to the CEDAW Convention, in its 2019 submission relating to the treaty body strengthening process, wrote: ‘The recent practice whereby General Comments are co-​authored by two or more treaty bodies is also a matter of concern, particularly for those States that have not ratified all the pertinent treaties. . . .’, https://​www.ohchr.org/​Documents/​HRBodies/​TB/​HRTD/​3rdBiennial/​States/​Holy%20See. docx. 115 See A Byrnes and J Connors, ‘Enforcing the Human Rights of Women: A Complaints Procedure for the Convention on the Elimination of All Forms of Discrimination Against Women?’ (1996) 21(3) Brooklyn Journal of International Law 679, 766–​767.

416  Andrew Byrnes the utility of such recommendations for use as a legal instrument at the national or international level. For example, CEDAW’s General recommendation 23 may be contrasted with General comment 25 of the HRC.116 Both of these cover similar ground—​rights of participation in political and public life—​and indeed the CEDAW text draws on parts of the Human Rights Committee text. But the Human Rights Committee’s General comment is a more tightly drawn document, without extensive contextual material, seeking to set out in legal terms the obligations of a State party under Article 25 of the ICCPR. CEDAW’s General recommendation, on the other hand, is much longer, and more discursive. While it includes the reflections of the Committee on the origins of women’s inequality in political and public life, it may very well have a lesser impact as an authoritative legal document than the HRC’s contribution. On the other hand, CEDAW’s General recommendations 25 and 28 are more tightly constructed documents. Such documents are likely to be more useful in arguing in legal cases and in advocacy contexts. The procedure for the adoption of general recommendations has developed from an ad hoc approach in the Committee’s early years to a more structured process first introduced in 1997,117 which increased opportunities for civil society, specialized agencies and States to contribute to the process. The Committee has endorsed the approach to the adoption of general recommendations comments approved by the chairpersons of the treaty bodies in 2015.118 This involves a multi-​stage consultation process, under which treaty bodies are to seek input from various stakeholders on the basis of an initial concept note, with drafts to be shared with States parties, other treaty bodies and special procedures, specialized agencies, national human rights institutions and civil society, and posted on the OHCHR website, in order to elicit input and comments. Treaty bodies are to take into account the input received (there is no explicit requirement that all submissions be posted on the OHCHR website, though this is something that CEDAW and other treaty bodies have increasingly begun to do). This more transparent and participatory procedure reflects the recognition that general recommendations and comments ‘are an important legal tool for the effective and coherent implementation of the purpose and objectives of the international human rights treaties’ and pursues the goal of ‘strengthening the coherence of treaty law interpretation’,119 while also ensuring significant input from those with experience and expertise in the subject matter of the General recommendation.

(b)  NGOs and the work of the Committee The Convention accords non-​governmental organizations no formal role in the review of the reports of States parties: it provides that this review is to be carried out on the

116

HRI/​GEN/​1/​Rev.9 (Vol II), 347 (2008) and HRI/​GEN/​1/​Rev.9 (Vol I), 217 (2008), respectively. A/​52/​38, para  480. 118 A/​70/​302, para 91 (2015). 119 A/​70/​302, para 90 (2015). 117

Committee on the Elimination of Discrimination Against Women  417 basis of material contained in State reports and also, perhaps, of information supplied by the specialized agencies of the United Nations.120 Thus, representatives of NGOs are not permitted to speak at meetings at which the Committee is considering a State report, and NGO documents submitted to the Committee are not translated or circulated as official documents (though most of them now appear on the OHCHR website). Nor does the Convention envisage any role for NGOs in the other work of the Committee. National human rights institutions (NHRIs) are equally invisible in the Convention. However, a critical element in the effective scrutiny of a report submitted under the human rights treaties is information from sources other than the state concerned, especially material provided by national non-​governmental organizations.121 The failure of the Convention to make any provision for the formal participation of NGOs in any of the Committee’s work reflects the historical context in which the Convention was drafted —​the treaty system was in its infancy and there was very little organized NGO activity around the work of the treaty bodies. Indeed, there were disagreements within the two treaty bodies which then existed (CERD and HRC) as to whether experts could rely on NGO information even informally. In the early years of the Committee’s work, Committee members received NGO information and used it in their questioning of states; this material was not formally received and there was no organized NGO liaison with the Committee. The situation has changed dramatically since then, with NGO involvement in the work of CEDAW and other committees now an important and visible aspect of the system. Following the Nairobi conference in 1985, the International Women’s Rights Action Watch (IWRAW) was founded. IWRAW is an international network, the mandate of which is to publicize the Convention and to support the work of the Committee.122 In the ensuing years, IWRAW played an important role in doing this, informing national NGOs of coming reviews of their countries, and forwarding or providing information about those countries to CEDAW members.123 In addition, many national NGOs submitted material to the Committee independently when their countries came up for consideration. The early 1990s saw a dramatic increase in NGO interest in the Committee as a result of the various world conferences. More international NGOs began to follow the work of the Committee and to facilitate the flow of information to it, and more national groups became aware of the role that they could play in the reporting process. In addition to contributions to that process, NGOs also provided other important input to the Committee’s work, by organizing thematic seminars124 or preparing studies on topics 120 Article 20 provides that the Committee is to meet ‘in order to consider the reports submitted under article 18 of the Convention’, while Article 21 empowers the Committee to make ‘suggestions and general recommendations based on the examination of reports and information received from States parties’. Article 22 entitles the specialized agencies to submit reports to the Committee ‘on the implementation of the Convention in areas falling within the scope of their activities’. 121 See Connors, above n 54, 15–​17. 122 For details of activities and publications, see hrlibrary.umn.edu/​iwraw/​Publications.html. 123 Connors, above n 54, 16, n 66; D Gierycz, ‘Education on the Human Rights of Women as a Vehicle for Change’ in G Andreopoulos and R Claude (eds), Human Rights Education for the Twenty-​First Century (University of Pennsylvania Press, 1997) 96, 104–​5. 124 See, for example, the proceedings of the 1992 seminar organized by the International League for Human Rights, Combatting Violence Against Women (International League for Human Rights, 1993).

418  Andrew Byrnes on which the Committee was drafting general recommendations or on the working methods of the Committee,125 and the strengthening of the Committee’s procedures through the elaboration of an optional protocol to the Convention. Of particular importance was the establishment of the International Women’s Rights Action Watch Asia Pacific, an independent NGO which grew out of IWRAW and which has gone on to play a major role in the developing contacts between the Committee and national groups, in particular through its establishment of the Global to Local program (which brought national groups to CEDAW sessions to provide alternative NGO information to the Committee).126 Beyond this, interest in the Committee has grown at a great rate and national groups from nearly all countries participate in the Committee’s work and draw on its output to advance their advocacy at national and international levels. The NGOs now participating are much more diverse than a decade or so ago, with representatives from marginalized groups such as indigenous and tribal peoples, sex workers, LGBTIQ groups and women with disabilities. NHRIs have also begun to contribute more significantly to the Committee’s work, a development CEDAW has welcomed.127 Until the late 1990s, members of the Committee were on the whole grateful to receive the information, but no steps were taken to provide a more formal or structured role for NGOs either in the reporting process or in the other work of the Committee. Finally, however, the Committee requested the secretariat to arrange for lunchtime briefings with NGOs from states whose reports were to be considered,128 a practice that had been adopted for many years by a number of the Geneva-​based treaty bodies.129 It then decided to bring NGOs into the formal process by inviting them to make presentations to the pre-​sessional working group reviewing periodic reports,130 a practice initiated by the Committee on the Rights of the Child and the CESCR. By 1999, the Committee set aside a day of public meetings at which NGOs were permitted to present country-​ specific information.131 This is now a regular feature of CEDAW sessions, with NGO presentations on the first day of each of the first two weeks of CEDAW sessions. In 2018 the Committee also endorsed the San José Guidelines against Intimidation or Reprisals, and has appointed a rapporteur and alternate rapporteur on intimidation and reprisals.132 125 See, for example, IWRAW, Report of the Colloquium of the International Women’s Rights Action Watch and the Committee on the Elimination of Discrimination Against Women, New York, 13–​14 January 1996 (International Women’s Rights Action Watch, 1996). 126 S Dairiam, ‘From Global to Local: The Involvement of NGOs’ in The Circle of Empowerment, above n 1, 313. I have been a member of the advisory committee of IWRAW Asia Pacific since its establishment. 127 Statement by the Committee on the Elimination of Discrimination against Women on its relationship with national human rights institutions, Decision 40/​II, A/​63/​38 (Part One), Annex II, para 7 (2008).The Committee established a working group on NHRIs which was to elaborate a ‘Procedurally Specific Guidance Note on CEDAW engagement with NHRIs’ for completion in 2019: CEDAW 72nd Session report, Chap V.A (2019). 128 Decision 16/​II, A/​52/​38,  1. 129 For a review of the practices of the various committees in relation to NGOs, see HRI/​MC/​2005/​4, paras 96–​104. 130 Decision 18/​I, A/​53/​38/​Rev.1,  1. 131 See OHCHR, ‘Information for Civil Society Organisations and National Human Rights Institutions’, available at: www.ohchr.org/​EN/​HRBodies/​CEDAW/​Pages/​CEDAWIndex.aspx. 132 Decisions 70/​2 and 70/​3(2018). These Guidelines were adopted by the Chairpersons of the treaty bodies in 2015: HRI/​MC/​2015/​6.

Committee on the Elimination of Discrimination Against Women  419 In addition, the Committee now consults more broadly with NGOs and others as part of its formulation of general recommendations, by encouraging NGOs to contribute to general thematic discussions or to provide information relevant to draft general recommendations being considered by the Committee.133 For example, as part of its preparation for the elaboration of a General Recommendation on Women in Conflict and Post-​conflict Situations, the Committee issued a call for submissions134 and subsequently a concept note135 to provide a basis for a public general discussion on the theme held at its 49th Session in July 2011;136 and the Committee published submissions from civil society and some intergovernmental organizations on the OHCHR website.137 This approach is also seen in the Committee’s innovative exercise of seeking to elaborate with the Committee on the Rights of the Child a joint General recommendation/​General comment on harmful practices. A general call for submissions on the theme was issued in 2011,138 with submissions from civil society made available on the website. A similar approach has been adopted with other recently adopted general recommendations.139

(c) Reservations Many States parties to the Convention have entered reservations to one or more of its articles.140 These have ranged from specific reservations to individual provisions141 (in 133 A/​52/​38, para 480 (1997) (procedure for the adoption of general recommendations). 134 General Discussion on ‘women in conflict and post-​conflict situations’, available at: www2.ohchr.org/​english/​bodies/​cedaw/​discussion2011.htm. 135 Concept Note:  General Discussion on the protection of women’s human rights in conflict and post-​conflict contexts, 2011, available at:  http://​www.ohchr.org/​documents/​HRBodies/​CEDAW/​Womenconflictsituations/​ GRConceptNote.pdf. 136 CEDAW Day of General Discussion—​‘women in conflict and post-​conflict situations’, 18 July 2011, New York, available at: www.ohchr.org/​EN/​HRBodies/​CEDAW/​Pages/​WomenconflictSituations.aspx. 137 See also Committee on the Elimination of Discrimination against Women, ‘Draft update of General Recommendation No 19 (1992) on gender based violence against women’, available at:  www.ohchr.org/​EN/​ HRBodies/​CEDAW/​Pages/​DraftUpdateGR19.aspx. 138 Joint CEDAW-​CRC General Recommendation/​Comment on Harmful Practices, Call for submissions, available at: www.ohchr.org/​EN/​HRBodies/​CEDAW/​Pages/​JointCEDAWandCRCGRecommendation.aspx. 139 The Committee has broadly endorsed the common methodology for consultation in the development of general comments endorsed by the Chairpersons of the treaty bodies in 2015 (A/​70/​302, paras 25 and 90–​ 1): Decision 61/​3 (2015). 140 See generally J Connors, ‘Article 28’ in CEDAW Commentary, above n 1, 565; M De Pauw, ‘Women’s rights from bad to worse? Assessing the evolution of incompatible reservations to the CEDAW Convention’ (2013) 28 (22) Merkourios 51; H B Schöpp-​Schilling, ‘Reservations to the Convention on the Elimination of All Forms of Discrimination against Women: An Unresolved Issue or (No) New Developments?’ ín I Ziemele, Reservations to Human Rights Treaties and the Vienna Convention Regime: Conflict, Harmony or Reconciliation (Martinus Nijhoff, 2004) 3; R Cook, ‘Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women’ (1990) 30 Virginia Journal of International Law 643; B Clark, ‘The Vienna Convention Reservations Regime and the Convention on Discrimination Against Women’ (1991) 85 American Journal of International Law 281; L Lijnzaad, Reservations to UN-​Human Rights Treaties: Ratify and Ruin? (Martinus Nijhoff, 1995) 298–​370; C Chinkin, ‘Reservations and Objections to the Convention on the Elimination of All Forms of Discrimination against Women’ in Gardner (ed), Human Rights as General Norms and a State’s Right to Opt Out –​Reservations and Objections to Human Rights Conventions (1997) 64; E Krivenko, Women, Islam and International Law: Within the context of the Convention on the Elimination of All Forms of Discrimination against Women (Martinus Nijhoff, 2009). 141 In addition to reservations to substantive provisions, as of 15 March 2019, 39 of the 189 States parties had also entered reservations to the procedure for referral of disputes between States parties which cannot be settled by negotiation to arbitration (and ultimately the International Court of Justice): Multilateral treaties, above n 1.

420  Andrew Byrnes many cases subsequently lifted once the inconsistent law or practice has been removed) to broad, sometimes vague reservations that appear to limit the state’s obligations under the Convention in significant respects.142 The freedom of states under international law to enter reservations is not unlimited. Article 28 of the Convention, reiterating the general international law standard,143 provides that reservations may not be ‘incompatible with the object and purpose of the treaty’. However, a number of the more sweeping reservations entered by states ratifying or acceding to the Convention appear to be clearly inconsistent with the object and purpose of the treaty. This is particularly true of those reservations which purport to make the state’s acceptance of obligations under the Convention as a whole, or central provisions such as Article 2 and Article 16, subject to existing domestic law or customs or to a system of religious law.144 Other countries have stated that their acceptance of obligations under the Convention is subject to existing constitutional or statutory provisions (especially in the area of family relations). The Convention provides no specific procedure for making a determination of incompatibility (unlike the Racial Discrimination Convention, under which a reservation is considered to be incompatible if two-​thirds of the States parties object to it). Instead, the matter is left to be dealt with by individual States parties, the meeting of States parties and the Committee itself. Although the issue of reservations to the Convention has been on the agenda of the meeting of States parties at various times, nothing much has been accomplished in that forum, or indeed in the other United Nations fora in which many of the same states which have entered extensive reservations support resolutions calling for the review and removal of such reservations. The task of seeking to control the inroads that reservations make on the integrity of the Convention regime has in practice fallen to a small number of States parties, the Committee and to NGOs.145

142 For the text of reservations, see Multilateral treaties, above n 1. For an overview of many reservations by article, objections and withdrawals, see the table in HRI/​MC/​2005/​5, at 118–​27. See also the briefings provided to the Committee by the Secretariat in CEDAW/​C/​1997/​4 and CEDAW/​C/​2001/​II/​4. Details of the reservations that have been amended or withdrawn may be found in the Notes to the status information on the Convention in Multilateral treaties, above n 1, 45–​67. 143 Vienna Convention on the Law of Treaties, Article 19. 144 Among other countries making such reservations are Bangladesh, Egypt, Iraq, Kuwait, Libya, Malaysia, the Maldives, Morocco, Oman, Qatar and the United Arab Emirates (with reference to Islam), Niger (expressing reservations in relation to obligations to change customs and practices), Pakistan (conditioning its acceptance on consistency with the country’s Constitution), and Israel and Singapore (personal status laws as they apply to various religious communities in the country). Other countries where Islam is an official or widespread religion have ratified without reservation or with reservations which are more restricted in scope. See generally J Connors, ‘The Women’s Convention in the Muslim World’ in M Yamani (ed), Feminism and Islam: Legal and Literary Perspectives (Ithaca Press, 1996) 351. 145 Moves to generate support for a reference to the International Court of Justice of the question of reservations to the Convention have not proceeded very far. See resolution 1995/​26 of the Sub-​Commission on Prevention of Discrimination and Protection of Minorities, in which the Sub-​Commission requested the Secretary-​General to obtain the views of CEDAW and the Commission on the Status of Women on the question ‘whether it would be desirable to have an advisory opinion on the value and legal effect of reservations concerning the Convention’. For a summary of the response from the Division for the Advancement of Women, which did not explicitly address the question of whether the Committee thought the reference of the matter to the International Court would be desirable, see E/​CN.4/​Sub.2/​1996/​20 (1996). See Schöpp-​Schilling, above n 140, 16–​17.

Committee on the Elimination of Discrimination Against Women  421 A number of States parties have regularly objected to sweeping reservations entered by new States parties, declaring that they are incompatible with the Convention, do not provide sufficient detail for a determination of their compatibility to be made, or involve an unacceptable attempt to limit the scope of international obligation by reference to the limits of national law. They have also objected to reservations made to specific provisions, especially central articles such as Articles 2, 15, and 16 of the Convention. Particularly prominent in scrutinizing reservations have been Austria, Denmark, Finland, Germany, Mexico, the Netherlands, Sweden, and Switzerland, joined since the mid-​2000s by a number of other European states.146 These objections (combined in some cases with criticism by CEDAW or non-​governmental organizations) have led to the withdrawal or narrowing of some of these reservations.147 But many reservations that appear incompatible with the object and purpose of the Convention still remain. The approach taken by CEDAW to reservations entered by States parties has been the pragmatic one of engaging with individual States parties and seeking to persuade them to review and narrow or withdraw their reservations over time,148 while making strong statements about the permissibility and compatibility of reservations more generally.149 The Committee has regularly questioned States parties about the meaning and scope of reservations, the justification for them, and any timetable the State party has for reviewing or removing them.150 As part of its preparation for the examination of country reports, the Committee has asked to be briefed on reservations that States parties may have entered to similar guarantees in other human rights treaties. In many cases, states have not entered reservations to the equality guarantees of the ICCPR, ICESCR, or the Convention on the Rights of the Child (CRC),151 yet have entered reservations to provisions of the CEDAW Convention which embody similar obligations. In addition, the Committee now regularly includes in its Concluding Observations on individual country reports its views on the reservations entered by that state (including an assessment of whether it considers a reservation incompatible).152 The Committee has made a number of statements on reservations addressed to the States parties as a whole.153 In 1987 it expressed concern about the significant number of reservations that appeared to be incompatible with the object and purpose of the 146 See Multilateral Treaties, above n 1, and HRI/​MC/​2005/​5, paras 118–​27. 147 Connors, above n 140, 591–​4. 148 The responses of CEDAW in the reporting procedure to reservations entered, modified or withdrawn by States parties, along with the practice of other treaty bodies in this regard, are usefully collected in The practice of the human rights treaty bodies with respect to reservations to international human rights treaties, HRI/​MC/​2005/​5, at 52–​69 and HRI/​MC/​2007/​5,  14–​16. 149 See Chinkin, above n 140, 77–​82; Connors, above n 144, 85, 96–​100; Connors, above n 140, 581–​91. 150 See De Pauw, above n 140, 5960. 151 GA Res 44/​25, Annex (1989). 152 See, eg, the comments on Israel’s maintenance of its reservations and on Bangladesh’s decision to withdraw some of its reservations: A/​52/​38, Pt II, at 90 (para 157) and 119 (para 424) (1997); on the reservation of the Maldives to Article 16 (‘contrary to the object and purpose of the Convention’) (A/​62/​38, Pt I, paras 216–​17 (2007)), India’s reservation to Articles 5 and 16 (Id. paras 147–​8), Mauritania’s general reservation (A/​62/​38/​Pt II, paras 24–​5 (2007)), Syria’s many reservations (Id. paras 121–​2); Pakistan’s general reservation (CEDAW/​C/​ PAK/​Co/​4, paras 9–​10 (2013); Oman’s general reservation (CEDAW/​C/​OMN/​CO/​2-​3, paras 9–​10 (2017)); Niger (CEDAW/​C/​NER/​CO/​3-​4, paras 8–​9 (2017); and Malaysia’s remaining reservations (CEDAW/​C/​MYS/​CO/​3-​5, paras 9–​10 (2018)), among many other examples. 153 See Schöpp-​Schilling, above n 140.

422  Andrew Byrnes Convention, and called on States to consider withdrawing them.154 In 1992 it called for the issue of reservations to the Convention to be raised in the overall context of reservations to human rights treaties, for States parties to review their reservations, and to consider the introduction of a procedure under the Convention which would allow for compatibility to be determined.155 In 1994 the Committee issued a statement codifying its general practice in questioning States parties. It requested States parties to include information on reservations in their reports, the reasons for the reservations, whether similar reservations were entered to other treaties, their effect and consistency with the Convention, plans to limit and withdraw reservations, and the timetable for such steps. The Committee expressed its particular concern about reservations which did not refer to specific articles of the Convention and reservations to Articles 2 and 3, noting its view that they were incompatible with the object and purpose of the Convention.156 The Committee returned to the subject in 1998, when it set out in some detail its views on the question of reservations to the Convention, once again expressing its concern about the number and scope of reservations and the impact these have on the goals of the Convention, and calling on States parties to review reservations in an effort to narrow or remove them.157 The Committee has also addressed the question of reservations in its General recommendation 21 (1994) on equality in marriage and family relations, General recommendation 23 (1997) on women in political and public life, General recommendation 28 (2010) on States parties’ general obligations under the Convention and General recommendation 29 (2013) on the economic consequences of marriage, family relations and their dissolution. States enter reservations for many reasons, and there has been some success in encouraging them to remove or limit a significant number of reservations.158 However, broad reservations, particularly those based on religion or custom, are those that have seen the least progress so far as removal and limitation is concerned, and it seems that this situation is likely to persist (though broad reservations have been withdrawn by a few states159). Given this likelihood, the Committee’s continual questioning within the framework of the reporting procedure seems a preferable strategy to seeking to have reservations declared incompatible and thus possibly rendering the State’s accession or ratification ineffective. The Committee has asserted its competence in theory to pronounce on the permissibility of reservations in cases which come to it under the individual communications 154 General recommendation 4, HRI/​GEN/​1/​Rev.8,  290. 155 General recommendation 20, HRI/​GEN/​1/​Rev.8, 308 (referring to its earlier General recommendation 4). 156 A/​49/​38, 13 (1994). These views are now incorporated into the Committee’s guidelines for the content of States parties’ reports and have been regularly reiterated: see, eg, CEDAW/​C/​NER/​CO/​3-​4, paras 8–​9 (2017). 157 A/​53/​38/​Rev.1, Pt II, paras  1–​25. 158 Connors, above n 140, 591–​4. 159 See, for example, the withdrawal by Malawi of its reservation subjecting its Convention obligations to ‘traditional customs and practices’. Malaysia sought to narrow its reservations in 1998 but due to France’s objection to the modification, the modification was not accepted as valid by the depositary. There has been some confusion about the effect of this non-​acceptance of Malaysia’s reservations, with the modified version being further modified in 2010 without objection. Multilateral treaties, above n 1, Notes, nn 37 and 76. See Krivenko, above n 140, 118–​20.

Committee on the Elimination of Discrimination Against Women  423 procedure.160 The Committee has nonetheless not had to address the issue of the compatibility of a reservation under the individual complaints procedure;161 in a number of cases brought against France relating to discrimination in relation to family names, it simply sidestepped the issue.162

11.4  Optional Protocol to the Convention One outcome of the various world conferences of the 1990s was the resuscitation of the proposal for an individual complaints procedure under the Convention,163 similar to those existing under the Optional Protocol to the ICCPR and other treaties.164 Following expressions of support for the idea at the Vienna World Conference on Human Rights in 1993, NGOs, supportive governments and foundations, and CEDAW took up the issue in 1995.165 The matter came to the CSW in the same year, and the sessions of the Commission from 1996 to 1999 saw discussion of the desirability and form of an optional protocol, followed by detailed negotiations on the text of an instrument. The Commission concluded its work on the text in 1999 and the General Assembly adopted the treaty in October 1999.166 The Optional Protocol was opened for signature in December 1999 and entered in force on 22 December 2000, following receipt of the necessary ten ratifications.167 As of 15 March 2019, there were 111 States parties to the Optional Protocol.

160 Decision 41/​I, A/​63/​38, Part II (2008); Connors, above n 140, 590–​1. See also The practice of human rights treaty bodies with respect to reservations to international human rights treaties, HRI/​MC/​2005/​5, paras  30–​47. 161 Connors, above n 140, 590–​1. 162 Groupe d’Interêt pour le Matronyme v France, Comm 12/​2007 and SOS Sexisme v France, Comm 13/​2007. 163 See Connors, ‘Optional Protocol’ in CEDAW Commentary, above n 1, 607–​79; UN Division for the Advancement of Women, Department of Economic and Social Affairs.  The Optional Protocol:  Text and Materials  (United Nations, 2000); and IWRAW Asia Pacific, Our Rights are Not Optional:  A Resource Guide (IWRAW Asia Pacific, 2005). For a helpful listing of resource materials and commentary on developments up to 2015, see Optional Protocol to CEDAW blog, available at opcedaw.wordpress.com. 164 For the history of the Optional Protocol, see generally Connors, above n 163, at 607–​16; Byrnes and Connors, above n 115; A Byrnes, ‘An effective individual complaint mechanism in an international human rights context’, in Bayefsky, above n 54, 139 at 156–​60; S Cartwright, ‘Rights and Remedies: The Drafting of an Optional Protocol of the Convention on the Elimination of All Forms of Discrimination against Women’ (1998) 9 Otago Law Review 239; A Wörgetter, ‘The Draft Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women’ (1997) 2 Austrian Review of International and European Law 261; A Byrnes, ‘Slow and Steady wins the Race? The Development of An Optional Protocol to the Women’s Convention’ in Proceedings of the 91st Annual Meeting of the American Society of International Law (American Society of International Law, 1997) 383. For the legislative history and a collection of many of the important documents, see The Optional Protocol: Text and Materials, above n 163. 165 Of particular importance was an expert seminar organized by the International Human Rights Law Group and the University of Maastricht in late 1994 to prepare a preliminary draft of an optional protocol. The Maastricht draft appears in Byrnes and Connors, above n 115, 784–​97. Following the Maastricht meeting, CEDAW adopted its Suggestion No 7 (A/​50/​38 at 8 (1995)), in which it set out its views on the form and content of an optional protocol. At its March 1995 session the Commission merely invited comments on CEDAW’s Suggestion No 7. At the 1996 session of the Commission an open-​ended working group discussed the feasibility of a protocol and a number of the more important issues, on the basis of government and NGO comments, and the work of drafting began in earnest in 1997. 166 GA Res A/​54/​4 (6 October 1999), 2131 UNTS 83. 167 Article 16.

424  Andrew Byrnes The Optional Protocol contains both an individual complaints procedure (similar to the First Optional Protocol to the ICCPR) which permits individuals who allege that they are victims of a violation of the rights in the Convention to complain to the Committee,168 and also an inquiry procedure empowering the Committee to conduct an inquiry into a situation in a State party where it appears that grave or systematic violations of the Convention are occurring or have occurred.169 No inter-​state procedure was included in the instrument,170 as at that time there had been no use of such procedures under other UN human rights treaties and such a procedure was seen as having little utility (especially in light of the availability of the inquiry procedure).171 A state which becomes party to the Optional Protocol must accept the individual complaints procedure, but has the right to opt out of the inquiry procedure.172 Reservations to the protocol are expressly prohibited.173 As of 15 March 2019 only five of the 111 States parties to the Optional Protocol had opted out of the inquiry procedure.174 The original draft in large part followed the ICCPR model so far as the individual complaints procedure was concerned (and Article 20 of the Torture Convention in relation to the inquiry procedure), though with some efforts to strengthen and consolidate the practice under that instrument. The most contentious issue during the negotiations was the question of who could bring complaints, in particular whether non-​governmental organizations could bring complaints on their own behalf and on behalf of others without their express consent. Other contentious issues included the inquiry procedure generally, the status of the Committee’s views, the permissibility of reservations to the protocol, the power to request interim measures, and the justiciability of the obligations under the Convention.175 The negotiations on the protocol saw most of the innovative elements in the original draft removed or whittled down, and the final product looks very much like the existing communications procedures, albeit with some innovation.

168 Article 2. 169 Article 8. 170 Article 29(1) of the Convention itself provides for an inter-​State procedure where a dispute arises between two or more States parties ‘concerning the interpretation or application of the Convention’, if not settled by negotiation, can be referred to arbitration and ultimately to the International Court of Justice. See generally S Kroworsch, ‘Article 29’ in CEDAW Commentary, above n 1, 597–​601. No disputes have been brought to the Committee under this procedure. States are permitted to enter reservations to this provision (article 29(2)). As of 2019 thirty-​eight States parties maintained such reservations; eight other States had withdrawn their earlier reservations to the provision. Multilateral treaties, above n 1. 171 See Connors, above n 163, 612 n 27, and A Edwards, Violence against Women under International Human Rights Law (Cambridge University Press, 2011) 117–​18. The only use made of such procedures has been cases under Article 11 of the Racial Discrimaition Convention lodged in 2018 by Qatar against the United Arab Emirates (Comm CERD/​C/​99/​3 and CERD/​C/​99/​4) and Saudi Arabia (CERD/​C/​99/​5 and CERD/​C/​99/​6), respectively, relating to the blockade and isolation of Qatar; and by Palestine against Israel (see D Keane, ‘ICERD and Palestine’s Inter-​State Complaint’, EJIL Talk!, 30 April 2018, https://​www.ejiltalk.org/​icerd-​and-​palestines-​inter-​ state-​complaint/​). 172 Article 10. 173 Article 17. 174 Bangladesh, Belize, Colombia, Cuba, and Tajikistan: Multilateral treaties, above n 1. 175 See Byrnes, ‘Slow and Steady wins the Race?’, above n 164, 382.

Committee on the Elimination of Discrimination Against Women  425 The individual communications procedure set out in Articles 1–​7 of the Optional Protocol provides for submission to the Committee of communications ‘by or on behalf of individuals or groups of individuals, under the jurisdiction of a State party, claiming to be victims of a violation of any of the rights set forth in the Convention by that State party’. Where a communication is submitted on behalf of others, the person who submits it must either have the consent of those other persons or be able to ‘justify acting on their behalf without such consent’. The Optional Protocol and the rules of procedure adopted under it stipulate standard admissibility criteria for communications to be considered by the Committee, and prescribes a procedure which proceeds on the basis only of written material before the Committee. In cases which are considered on the merits, the Committee adopts ‘views’ (with accompanying recommendations) which are not formally binding, though States parties are required to ‘give due consideration’ to them, and to provide the Committee with a response within six months.176 Article 5 of the Optional Protocol also provides for the Committee to request the State party to take interim measures to protect a complainant pending resolution of the merits of a claim.177 The inquiry procedure under Article 8 closely follows the Torture Convention model. Where the Committee receives ‘reliable information indicating grave or systematic violations’ by a State party,178 it may invite the State party to cooperate in the examination of the information. If the Committee then decides to establish an inquiry, it will designate one or more members of the Committee to conduct that inquiry, which may involve a visit to the state (with the state’s consent). The Committee’s initial findings and recommendations are forwarded to the State party, which has six months to respond. Its report is forwarded to the state for any comments. The Committee is empowered to include a summary of its activities under the Protocol in its annual report to the General Assembly.179 The Optional Protocol also requires States parties to give publicity to the Protocol and to the views and recommendations of the Committee adopted under it, and imposes an explicit obligation on States parties to ensure that persons who communicate with the Committee under the OP are not subjected to ill treatment or intimidation as a result of that cooperation. The Committee has established a working group on inquiries to deal with requests for inquiries on a consistent basis, and has adopted a ‘comprehensive standard operating procedure’ to assist those who wish to use the inquiry procedure.180

176 Article 7(3)–​(4). 177 The Committee has requested interim measures of protection in a cases not involving non-​refoulement claims (eg, AT v Hungary, where the request was not dealt with satisfactorily by the State party) and VK v Bulgaria where the Committee was satisfied that the State party had taken appropriate steps). Interim measures requests have been made in the increasing number of non-​refoulement cases. As of late 2018 the Committee was considering twelve non-​refoulement cases in which interim measures had been indicated. In most cases the State party had complied with the request: CEDAW/​C/​SR.1655, para 9 (2018). 178 On the meaning of ‘grave’ or ‘systematic’ violations, see CEDAW/​C/​OP.8/​CAN, paras 213–​5 (2015); CEDAW/​C/​OP.8/​GBR/​1, paras 78–​80 (2018); CEDAW/​C/​OP.8/​KGZ/​1, paras 85–​7 (2018). 179 Article 12. 180 CEDAW/​C/​SR.1655, para 12 (2019).

426  Andrew Byrnes

(a)  Individual communications procedure The number of individual cases lodged and decided under the Optional Protocol is relatively modest, given that the Optional Protocol entered into force nearly two decades ago. By early 2019, 139 communications had been registered, against 40 different States parties, and the Committee had disposed of 72 cases on admissibility grounds or on the merits; 56 cases were pending.181 The overwhelming majority of these cases had been brought against WEOG and Eastern European countries, with cases brought against only a dozen countries from other regions.182 Of the decided cases the Committee had found the complaints inadmissible in more than 50 per cent of the cases (39/​72), while it found violations in twenty-​eight of the thirty-​three cases that were decided on the merits.183 In relation to questions of admissibility,184 the Committee’s approach has been largely consistent with the practice of other UN human rights treaty bodies (in particular the Human Rights Committee).185 Many cases have been rejected on the basis that the complainants had failed to exhaust domestic remedies, some (also) on ratione temporis grounds, a number on the basis that complainant were not ‘victims’—​in a number of cases one or more of these grounds were relied on. There has been some criticism of apparent inconsistencies in the Committee’s application of some of these criteria, and concern that this might undermine its credibility as a forum.186 However, it is still early days in the Committee’s work under this procedure,

181 Eleven communications had also been discontinued. ‘Statistical Survey on individual complaints’, 24 January 2019, available at: www.ohchr.org/​Documents/​HRBodies/​CEDAW/​StatisticalSurvey.xls. Up to 31 December 2017 the number of communications registered varied from 13 to 18 per year: A/​73/​309, Annex VI (2018) and the Committee from 2015 to 2017 the Committee completed consideration of an average of 11.3 communications per year: A/​73/​109, Annex VIII (2018), though this seems likely to increase: CEDAW, Report on the 72nd Session, Annex I (2019). 182 Argentina, Brazil, Ecuador, Kazakhstan, Republic of Korea, Libya, Mexico, Peru, Philippines, Sri Lanka, St Kitts & Nevis, Tanzania, and Timor-​Leste. For summaries of the Committee’s decisions up to June 2012, and in 2013 see Open Society Justice Initiative, Case Digests: UN Committee on Elimination of Discrimination against Women (CEDAW) 2004–​12 (2012), available at: www.soros.org/​briefing-​papers/​case-​digests-​un-​committee-​elimination-​ discrimination-​against-​women-​cedaw-​2004-​12 and L Hodson, ‘Women’s Rights and the Periphery:  CEDAW’s Optional Protocol Women’s Rights and the Periphery: CEDAW’s Optional Protocol’ (2014) 25 European Journal of International Law 561, 567–​78. An overview is available at: www.bayefsky.com/​docs.php/​area/​jurisprudence/​ node/​3/​treaty/​cedaw/​opt/​0. 183 See Y Hayashi, ‘Implementation of the Convention on the Elimination of All Forms of Discrimination against Women in Japan’ (2013) 6 Journal of East Asia and International Law 341, 352–​66; S Cusack and L Pusey, ‘CEDAW and the Rights to Non-​Discrimination and Equality’ (2013) 14(1) Melbourne Journal of International Law 54; Hodson, above n 184; M Campbell, ‘Women’s Rights and the Convention on the Elimination of all Forms of Discrimination Against Women: Unlocking the Potential of the Optional Protocol’ (2016) 34 Nordic Journal of Human Rights 247. 184 See Connors, above n 163, 632–​47; Delzangles and Möschel, above n 8, 65–​73. 185 See the overview in CEDAW/​C/​2004/​I/​WP.2. 186 See, eg, J Murdoch, ‘Unfulfilled expectations: the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women’ (2010) European Human Rights Law Review 26, and A Byrnes and E Bath, ‘Violence against Women, the Obligation of Due Diligence, and the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women—​Recent Developments’ (2008) 8 Human Rights. Law Review 517.

Committee on the Elimination of Discrimination Against Women  427 and inconsistencies in the application of the same criteria are certainly not unknown in the practice of other treaty bodies. The question of admissibility ratione temporis has posed the same challenges for the CEDAW Committee as for other committees.187 Article 4(2)(v) of the Optional Protocol provides that ‘the Committee shall declare a communication inadmissible where the facts that are the subject of the communication occurred prior to the entry into force of the Protocol for the State party concerned unless those facts continued after that date’. The Committee has adopted the view that the Optional Protocol does not apply to acts which took place before the entry into force of the Optional Protocol for the State party concerned, unless there is a continuing violation. The concept of what constitutes a continuing violation seems to be very malleable, and some of the cases the Committee has rejected on this ground188 seem equally capable of being characterized as a continuing violation.189 The Committee has tended to be reasonably flexible in its approach in relation to other grounds of admissibility. It has insisted that a complainant must have raised in substance at the domestic level the sex discrimination claim she wishes to bring before the Committee.190 However, what it demanded of the complainants in some cases (for example, Kell) seems much less stringent than the standard insisted on in other cases (Kayhan, NSF). The Committee has been reasonably orthodox in its application of the exhaustion of domestic remedies requirement, generally requiring complainants to have availed themselves of all ordinarily available remedies, though the Committee has not always insisted that the ordinary appeals process should be exhausted, even if that might have provided relief.191 Nor has it required the complainant to attempt to use extraordinary or unusual procedures, and it has taken into account the practical possibilities for complainants to access specific remedies.192 Similarly, the Committee has found that a complaint is admissible where the available remedies are unlikely to provide timely relief, especially in cases where urgent access to a definitive result is needed,193 or the proceedings have been unreasonably prolonged.194 The Committee has engaged with a number of important substantive issues under the Optional Protocol. The Protocol refers to the right to lodge communications alleging violations of ‘rights set forth’ in the Convention, though there are relatively few statements of rights as such, with most Convention articles stating the obligations of States Parties to (take steps to) ensure non-​discrimination in certain areas.195 The 187 See the discussion in CEDAW/​C/​2004/​1/​WP.2, paras 41–​55. 188 See, eg, Muñoz-​Vargas y Sainz de Vicuña v Spain, Comm No 7/​2005 ; Salgado v United Kingdom, Comm No 11/​2006. 189 See, eg, Szijjarto v Hungary, Comm No 4/​2004; Kell v Canada, Comm No 19/​2008. 190 Kayhan v Turkey, Comm No 8/​2005; N S F v United Kingdom, Comm No 10/​2005. 191 See Kell, especially the dissenting opinion of Patricia Schulz. 192 Goecke v Austria, Comm No 5/​2005, para 11.3. 193 L C v Peru, Comm No 22/​2004, para 8.4 (not reasonable to expect author, who needed access to a therapeutic abortion to preserve her own health, to exhaust medical administrative procedures and then seek relief before the courts in proceedings for amparo of unpredictable duration). 194 Pimentel, para 6.2. 195 Connors, above n 163, 629–​30; Byrnes and Connors, above n 115, 717–​34.

428  Andrew Byrnes Committee has interpreted its competence as extending to all substantive provisions of the Convention, essentially inferring a right to non-​discrimination in those areas where no right is guaranteed explicitly. The definition of ‘discrimination against women’ in Article 1 of the Convention extends to discrimination in relation to ‘human rights and fundamental freedoms in the political economic, social cultural, civil or other field’.196 This definition extends the coverage of the Convention to rights that are not explicitly mentioned in the Convention (such as the right to life,197 or the right not to be subjected to torture or inhuman treatment198). More contentious has been whether this in effect means that there is a general right to non-​discrimination on the ground of sex or whether there has to be an identified right or freedom the enjoyment of which is discriminatorily denied. This issue arose in the case of Cristina Muñoz-​Vargas y Sainz Vicuña v Spain,199 where some Committee members held that there was no human right to inherit a title of nobility (which was in this case ‘of purely symbolic and honorific nature, devoid of any legal or material effect’). They concluded therefore that the complainant’s claim that the discriminatory provisions of Spanish law governing the inheritance of such a title was therefore inadmissible because it was incompatible with the Convention.200 One member of the Committee dissented on this point, noting that such differential treatment embodied traditional stereotypes of the appropriate roles of women and men, and fell within the concept of discrimination against women interpreted in accordance with the ‘intent and spirit’ of the Convention.201 The Committee has consistently challenged states on the need to address gendered stereotypes in its concluding observations on state reports.202 In its approach to the definition of discrimination against women, the Committee has emphasized that the Convention covers multiple or intersectional discrimination in a number of cases, reflecting its views as summarized in General recommendation 28203 and in its questions to States parties204 and in many concluding observations.205

196 See generally, A Byrnes, ‘Article 1’ in CEDAW Commentary, above n 1, 51. 197 Pimentel v Brazil, para 7.6 (‘the lack of appropriate maternal health services has a differential impact on the right to life of women’). 198 Abramova v Belarus, Comm No 23/​1999, paras 7.4–​7.5. 199 Comm No 7/​2005. 200 Ibid, para 12.2. 201 Ibid, para 13.7. 202 See S Dairiam, ‘CEDAW, Gender and Culture’ in R Baksh and W Harcourt (eds), The Oxford Handbook of Transnational Feminist Movements (Oxford University Press, 2015) 367. 203 See, for example, Pimentel para 7.7; Kell, paras 10.2, 10.3. On the Committee’s approach to intersectional forms of discrimination generally, see M Campbell, ‘CEDAW and Women’s Intersecting Identities: A Pioneering Approach to Intersectional Discrimination’ (2015) 11 Revista Direito GV 479 (‘an expansive and fluid approach’ that goes beyond ‘traditional status-​based grounds’: ibid at 480–​1). 204 List of issues and questions are to seek information on ‘the situation of disadvantaged groups of women, such as older women, women with disabilities, women in detention, indigenous women, women belonging to ethnic minorities, refugee and migrant women, lesbian, bisexual and transgender women and intersex persons’: CEDAW/​C/​PSWG/​72/​1, para 9 (2019). 205 See R Holtmaat and P Post, ‘Enhancing LGBTI Rights by Changing the Interpretation of the Convention on the Elimination of All Forms of Discrimination Against Women? (2015) 33 Nordic Journal of Human Rights 319.

Committee on the Elimination of Discrimination Against Women  429

(b)  Obligations of due diligence, especially in relation to violence against women In its case law the Committee has made significant contributions in cases involving the extent of State party obligations in relation to the discriminatory conduct of private actors (especially violence against women206), the right to non-​discrimination in the enjoyment of the right to health (including reproductive rights), non-​discrimination in the customary law of inheritance,207 and the obligation of States parties to address gender stereotyping.208 The Committee has in general correctly distinguished between the obligations that are incumbent on an organ of the state or a public official (or a private actor to whom state functions are delegated), and the obligations that the State party assumes in relation to the actions of non-​state actors (in particular the ‘due diligence’ obligation).209 It has also found that the obligation of due diligence extends beyond obligations relating to violence to cover all obligations under the Convention. On some occasions, however, the Committee appears to have conflated these two categories of obligations, suggesting that the state may be under an obligation of ‘due diligence’ in relation to the actions of state organs and officials, rather than the stricter obligation that applies in such cases.210 The Committee has addressed States parties’ obligation of ‘due diligence’ in relation to the discrimination by private or non-​state actors, something made explicit by Article 2(e) of the treaty. This obligation requires a State party to take all reasonable measures to prevent the violation of the rights of a woman by a non-​state actor and to adopt appropriate investigatory, punitive, and reparatory measures where such violations occur as a result of a failure to fulfil the obligation. In a number of important cases, drawing on its analysis in General recommendation 19, the Committee has found violations of this obligation where partners or former partners have inflicted violence on the victims, referring to Articles 2(a), (c)–​(f), and 5(a). The Committee has insisted that States parties provide not just an appropriate legal framework which combines criminal, civil, and protective sanctions (including restraint orders and detention of persons who threaten violence), but that this formal protection afford actual protection in practice 206 Also in relation to employment: Medvedeva v Russian Federation, Comm No 60/​2013. 207 E S and S C v Tanzania, Comm No 48/​2013. 208 See R Cook and S Cusack, Gender Stereotyping: Transnational Legal Perspectives (University of Pennsylvania Press, 2009, paperback ed 2011), especially Chap 5. 209 For example, in the Pimentel case (para 7.5) it noted that ‘the State is directly responsible for the action of private institutions when it outsources its medical services and that, furthermore, the State always maintains the duty to regulate and monitor private health-​care institutions. In line with Article 2(e) of the Convention, the State party has a due diligence obligation to take measures to ensure that the activities of private actors in regard to health policies and practices are appropriate’. 210 Vertido v Philippines, Comm No 18/​2008. Cusack and Timmer point out that the Committee was not precise in its analysis of the relevant obligations, insofar as it suggested that the obligation of the State party in relation to the application of stereotypes by judges was part of an obligation of ‘due diligence’ under Article 2(f) rather than the direct obligation of the state under Articles 2(d) and 2(f) in relation to State organs: S Cusack and A Timmer, ‘Gender Stereotyping in Rape Cases: The CEDAW Committee’s Decision in Vertido v The Philippines’ (2001) 11(2) Human Rights Law Review 329, 339–​40, 341–​2. See also A Byrnes, ‘Article 2’ in CEDAW Commentary, above n 1, 71,  87–​90.

430  Andrew Byrnes once individual women have been identified as being at risk.211 The Committee has stated that a broad concept of violence—​including psychological or other non-​physical violence—​should be understood as covered by the Convention.212 These cases have set a demanding standard for States parties so far as the level of legislative protection and the practical implementation of the legal standards required are concerned. It is true that the facts in those cases showed a consistent and sustained pattern of actual and threatened violence against the women concerned of which the state authorities were aware and to which they should have responded more actively.213 The Committee has stated that standards of proof under domestic procedures should not be excessively high (especially in relation to the obtaining of interim protective measures).214 More controversially, the Committee has argued that ‘the perpetrator’s rights cannot supersede women’s human rights to life and to physical and mental integrity’ and suggested in one case that the high threshold of violence involved meant that the authorities should have detained the victim’s former partner.215 The Committee did not go so far as to say that automatic detention in any case of domestic violence is required under the Convention, rather it stressed that in this case there was a high level of violence over an extended period that may have made periods of preventive detention necessary, and was apparently of the view that this would not constitute ‘a disproportionate interference in the basic rights and fundamental freedoms of a perpetrator of domestic violence’.216 The Committee has decided a number of cases in which issues of reproductive health have directly arisen.217 In A S v Hungary the Committee found a violation of the Convention resulting from a sterilization carried out on a woman without her informed consent.218 In Alyne da Silva Pimentel v Brazil, a case brought by the mother of a Brazilian woman of African descent in relation to a failure by a private medical facility to provide adequate medical services, the Committee found that ‘the lack of appropriate maternal health services in the State party that clearly fails to meet the specific, distinctive health needs and interests of women’ constituted a violation of Articles 12(1) and (2) of the Convention, and that such a lack had ‘a differential impact on the right to life of women’.219 The Committee noted that the woman had been the victim of intersectional discrimination, and also underlined the obligation of the state to ensure not just that it has policies in place, but that the policies ‘must be action-​and result-​oriented as 211 Yildirim v Austria, Comm No 6/​2005, para 12.1.2. 212 V K v Bulgaria, Comm No 20/​2008, CEDAW/​C/​49/​D/​20/​2008 (2011). 213 See generally B Meyersfeld, Domestic Violence and International Law (Hart Publishing, 2010) 42–​52, 232–​5. 214 V K v Bulgaria, Comm No 20/​2008, CEDAW/​C/​49/​D/​20/​2008 (2011). 215 Goecke, para 12.1.5. See Byrnes and Bath, above n 188, 524; Murdoch, above n 186, 43–​4. 216 Goecke, para 12.1.5I (the language is that used by the state party). See Murdoch, above n 186, 44. 217 See E Kismödi et al, ‘Human Rights Accountability for Maternal Death and Failure To Provide Safe, Legal Abortion: the significance of two ground-​breaking CEDAW decisions’ (2012) 20(39) Reproductive Health Matters 31–​39; J de Mesquita and E Kismödi, ‘Maternal Mortality and Human Rights:  landmark decision by United Nations human rights body’, Bulletin of the World Health Organisation 90 (2012) 79–​79A; and R Cook and B Dickens, ‘Upholding Pregnant Women’s Right to Life’ (2012) International Journal of Gynecology and Obstetrics 117,  90–​94. 218 Szijjarto v Hungary, Comm No 4/​2004. 219 Alyne da Silva Pimentel v Brazil, Comm No 17/​2008, para 7.6.

Committee on the Elimination of Discrimination Against Women  431 well as adequately funded’, and there must be appropriately focused executive bodies to ensure their implementation.220 In LC v Peru the Committee held that the refusal of access to therapeutic abortion by a young woman who needed an operation to reduce the possibility of her suffering from permanent paralysis involved a failure by Peru to take all appropriate measures to eliminate discrimination in access to health care services on the basis of equality, since there was no effective accessible procedure which would have allowed LC to have access to the medical service that her condition required (namely spinal surgery and therapeutic abortion). The Committee held that where therapeutic abortion was legal in a State party, there was an obligation on the State to ‘establish an appropriate legal framework that allows women to exercise their right to it under conditions that guarantee the necessary legal security, both for those who have recourse to abortion and for the health professionals who must perform it’, with the need for this ‘to include a mechanism for rapid decision-​making’.221 The Committee has also explored the extent of States parties’ obligations in relation to gender stereotyping. It has held that endorsing or failing to eliminate adverse gender stereotyping not only violates Article 5(a) of the Convention, but also amounts to ‘discrimination against women’ under Article 1 and therefore falls under a range of other provisions as well. In Vertido v Philippines,222 the Committee held that the use by a trial court of stereotyped assumptions about women’s responses to sexual assault violated Article 5(a), as well as other articles of the Convention. The Committee has also found this analysis attractive in other cases as a separate or supporting basis for its finding of violation, holding in one case that a decision to postpone surgery for a pregnant woman ‘was influenced by the stereotype that protection of the foetus should prevail over the health of the mother’,223 and found that a domestic court’s refusal to grant a permanent protection order reflected ‘stereotyped, preconceived and thus discriminatory notions of what constitutes domestic violence’.224 The Committee has also held that ‘although . . . the Convention does not expressly refer to the right to a remedy, it considers that this right is implicit, in particular in article 2 (c)’.225 Although at least one state has contested this in Optional Protocol proceedings,226 it seems clear that as a matter of general principle a failure by a State party to carry out its obligation entails an obligation to make reparation, and thus to provide an appropriate remedy for the person whose rights have been violated. In the cases in which it has found violations, the Committee has recommended specific redress for the woman concerned (or her family), and has also made more general recommendations

220 Ibid. 221 L C v Peru, Comm No 22/​2009, para 8.17. 222 Vertido v Philippines, Comm No 18/​2008. See also R P B v Philippines, Comm No 34/​2011. 223 L C v Peru, para 8.15. 224 V K v Bulgaria, Comm No 20/​2008, para 9.12. 225 L C v Peru para 8.16, citing Vertido v Philippines, para 8.3. See also General recommendation 28, para 32. 226 See, for example, Response of the Government of the Republic of the Philippines to the decision of the United Nations Committee on the Elimination of Discrimination against Women in Communication No 18/​2008, April 2011, para 7.

432  Andrew Byrnes to the State party about how to reform its law and practice, including the adoption of legislative measures, national prevention strategies, access to justice for victims and survivors and rehabilitation programs for survivors and offenders.227

(c)  Follow-​up procedure for individual communications The Committee has instituted a follow-​up procedure for its communications procedure under which a member of the Committee is assigned responsibility for communicating with the State party in relation to each communication to ensure implementation of the decision;228 this has also involved receiving further information from victims, NGOs or others about the state’s response. Details of the responses of the state and further information from the complainant appear in the Committee’s annual reports or on the website, which suggest a tenacious commitment on the part of the Committee to ensure that the state responds substantively. For example, in the Vertido case, notwithstanding a detailed response by the Philippines and following further response by the author, in which she complained that she had not been compensated for the violations as recommended by the Committee, the Committee continued to seek further meetings with the State party. As of early 2019 the Committee was following up on eleven cases decided under the individual complaints procedure.229 The violence cases have also led to important progress at the domestic level in terms of law, policy and administrative change, and in the development of the follow-​up procedures of the Committee. The Committee has had some success with its follow-​ up procedures, due in part at least to the willingness of States parties to cooperate. For example, in relation to Austria, the process involved a continuing discussion with the State party (and the author/​representative) which was not formally closed until the Committee was satisfied that the appropriate measures had been taken.230

(d)  Inquiry procedure As of late 2018 the Committee had received a total of sixteen requests for inquiries under Article 8 of the Optional Protocol. Four of these had not proceeded beyond the initial stages because they had failed to meet the Article 8 threshold. Of those that had, the Committee had completed five inquiries, and seven were still on foot.231 The

227 See, for example, A T v Hungary, Comm No 2/​2003, para 9.6. Connors, above n 163, 656. 228 See A/​66/​38, part II, Annex IX (2011). 229 CEDAW, Report on the 72nd Session, Chap V.B (2018). 230 See, eg, Yildirim v Austria. See also R Lugar, ‘Die UNO-​Frauenrechtskonvention CEDAW als Instrument zur Bekämpfung der Gewalt an Frauen: zwei Beispiele aus Österreich’ (2009) Frauen Fragen 1, 22, 34–​6. 231 CEDAW/​C/​SR.1655, para 12 (2018).

Committee on the Elimination of Discrimination Against Women  433 completed inquiries related to Mexico,232 the Philippines,233 Canada,234 the United Kingdom,235 and Kyrgyzstan.236 The report in relation to Mexico, published in January 2005, was the result of an ­inquiry into alleged violations of the human rights of more than 300 women who had been abducted and murdered (often after being subjected to sexual violence) in and around Ciudad Juárez, Mexico, between 1993 and 2003.237 Mexico had ratified the Optional Protocol on 15 March 2002. The Committee’s inquiry had been triggered by the receipt of information from two non-​governmental organizations, Equality Now (based in New  York) and Casa Amiga (based in Ciudad Juárez) requesting the Committee to conduct an inquiry into the abduction, rape and murder of women in and around Ciudad Juárez. The victims were overwhelmingly young women, many of whom worked in the maquilas (factories) in the city; many had been subjected to sexual violence. In its report the Committee concluded that the facts before it ‘constitute[d]‌grave and systematic violations’ of the provisions of the Convention (in particular Articles 1, 2, 3, 5, 6, and 15), as well as of its General recommendation No 19 and the UN Declaration on the Elimination of Violence against Women.238 It found that the murders were not just isolated or sporadic incidents, but involved ‘systematic violations of women’s rights, founded in a culture of violence and discrimination that is based on women’s alleged inferiority; a situation that has resulted in impunity’;239 the fact that the disappearances and murders in Ciudad Juárez had not been eradicated, effectively punished and remedied for over a decade showed that there was a systematic pattern to the violations. It concluded that ‘[o]verall, despite the new level of awareness and efforts made at various levels, the situation in Ciudad Juárez remains highly complex, tragic, prolonged and full of unacceptable uncertainties’.240 The Committee made a number of general recommendations for action to address the violations, in particular stressing the need to strengthen coordination between the various levels of government, to incorporate a gender perspective into all investigations and policies to prevent and combat violence, and to maintain a close relationship with civil society organizations and other institutions involved in the efforts to combat ­violence.241 It also made a number of specific recommendations relating to the investigation of the crimes and punishment of the perpetrators.242 In the final section of the 232 CEDAW/​C/​2005/​OP.8/​Mexico. See A Byrnes and M Graterol, ‘Violence against Women: Private Actors and the Obligation of Due Diligence’ (2006) Interights Bulletin 15, 156; R Tavares da Silva and Y Ferrer Gómez, ‘The Juárez Murders and the Inquiry Procedure’ in The Circle of Empowerment, above n 1, 298; Meyersfeld, above n 213, 52–​7; and J Monárrez Fragoso et al, Violencia contra las mujeres e inseguridad ciudadana en Ciudad Juárez (Miguel Ángel Porrúa, 2010) 46–​9. 233 CEDAW/​C/​OP.8/​PHL/​1 (2015). 234 CEDAW/​C/​OP.8/​CAN/​1 (2015). 235 CEDAW/​C/​OP.8/​GBR/​1 (2018). See C O’Rourke, ‘Advocating Abortion Rights in Northern Ireland: Local and Global Tensions’ (2016) 25 Social & Legal Studies 716. For the response of the United Kingdom, see CEDAW/​ C/​OP.8/​GBR/​2 (2018) and CEDAW’s further comments: CEDAW/​C/​GBR/​CO/​8, paras 46–​7 (2019). 236 CEDAW/​C/​OP.8/​KGZ/​1 (2018). For the response of Kyrgyzstan, see CEDAW/​C/​OP.8/​KGZ/​2 (2018). 237 Tavares da Silva and Gómez, above n 232. 238 CEDAW/​C/​2005/​OP.8/​Mexico, para 259 (2005). 239 Ibid, para 260. 240 Ibid, para 45. 241 Ibid, paras 263–​70. 242 Ibid, paras 271–​86.

434  Andrew Byrnes report, the Committee made specific recommendations on preventing violence against women and guaranteeing security and promoting the human rights of women.243 The Committee’s report was accompanied by a detailed response from the Mexican government in which it set out the various steps which had been taken to address the problems. The government reaffirmed its commitment to the implementation of the CEDAW Convention and accepting that there had been deficiencies in the response of the state to the violations. The government also commented that, while it had studied the Committee’s recommendations, ‘it wishes to point out that in order to facilitate its task of implementation, it would have preferred greater analytical rigour on the part of the experts and more information about the reasons on which their recommendations were based’.244 The second of the Committee’s inquiries concerned restrictions on access to sexual and reproductive health services in Manila. The request was received in 2008, the Committee took up the matter immediately and decided in 2010 to establish an inquiry. A visit to the Philippines took place in 2012 and a confidential report prepared shortly thereafter. However, the summary report of the Committee was not released until 2015, partly due to a lack of clarity about the policy governing the release of reports. The Committee found that there had been systematic violations of a number of rights under the Convention, in particular the right to health and the right to decide on the number and spacing of one’s children, and made an extensive series of recommendations to the Philippines government.245 However, by the time of the review of the Philippines’ combined seventh and eighth reports under the Convention in 2016, there had been little progress in giving effect to the Committee’s recommendations. The Committee commented that ‘there has been a lack of specific measures to implement the recommendations of the Committee’s inquiry conducted in 2012 . . . including with regard to access to modern contraceptives and the legalization of abortion under certain circumstances’.246 The matter was still ongoing as of early 2019.247 The third completed inquiry (though its report was released second) related to alleged grave and systematic violations of the rights of Aboriginal women in Canada arising out of the disproportionately high levels of violence experienced by them.248 The violations alleged were the failure of Canada to take appropriate positive steps including holding a national public inquiry into the violence and adopting a national action plan, and the failure to have in place structures and policies to address the violence. The Committee, rejecting arguments that the federal division of power meant that Canadian federal government was not in a position to undertake measures to address matters that fell within provincial responsibility,249 found that Canada’s failures 243 Ibid, paras 271–​94. 244 Ibid, 92. 245 CEDAW/​C/​OP.8/​PHL/​1 (2015). 246 CEDAW/​C/​PHL/​CO/​7-​8, para 39(b) (2016). 247 CEDAW, Report on 72nd Session, Annex II, para 6(c) (2019). 248 M Campbell, ‘CEDAW Inquiry into Grave Violence Against Aboriginal Women in Canada’, Oxford Human Rights Hub, 24 March 2015, Available at: ohrh.law.ox.ac.uk/​cedaw-​inquiry-​into-​grave-​violence-​against-​ aboriginal-​women-​in-​canada/​. 249 CEDAW/​C/​OP.8/​CAN/​1, paras 194–​5 (2015).

Committee on the Elimination of Discrimination Against Women  435 and omissions had led to violations of multiple provisions of the Convention,250 and made detailed recommendations as to the steps the State should take.251 Canada accepted most of the Committee’s recommendations; while it did not immediately accept its recommendation to hold a national inquiry,252 it did eventually establish one. The inquiry into the United Kingdom concerned restrictions on women’s access to abortion services in Northern Ireland that were more extensive than those that applied in other parts of the country. The NGOs who brought the situation to the Committee argued that the United Kingdom had failed to establish a comprehensive framework to guarantee women in Northern Ireland the right to abortion, had thus exposed women to the health risks of unsafe abortion, and had failed to address the practical obstacles to access to abortion, which disproportionately affected rural women. The state had thus also discriminated against women in Northern Ireland. The Committee found that the situation involved grave and systematic violations of the rights of women in Northern Ireland. The Committee rejected the argument that the internal devolution of legislative power to Northern Ireland in this field excused the United Kingdom’s failure to bring domestic laws and practice into accord with its Convention obligations.253 The Committee found that there had been violations of Article 2 read with Articles 1, 5, 12, and 16 for ‘perpetrating acts of gender-​based violence through the deliberate maintenance of criminal laws disproportionately affecting women and girls, subjecting them to severe physical and mental anguish that may amount to cruel, inhuman and degrading treatment’.254 It also found violations of women’s right to health by obstructing their access to health services, denying women the right to decide freely and responsibly on the number and spacing of their children and the right to access the information necessary to exercise that right, discriminating against various subgroups of women, and failing to protect women from harassment by anti-​abortion protesters when seeking health and reproductive health services.255 The Committee also found that the failure to combat stereotypes about women’s roles as mothers also violated Article 5 read with Articles 1 and 2 of the Convention, and by failing to ensure access to high quality sexuality education had violated Article 10(h) of the Convention.256 The Committee recommended legislative changes and a range of other measures to address the violations.257 In a detailed response the United Kingdom set out recent developments (including the UK government’s decision to allow women resident in Northern Ireland to obtain abortions free of charge in England as well as access to other services while there, and also noted that other countries that were parties to the Convention had restrictions on abortion.258 The response took issue with aspects of CEDAW’s analysis and factual

250

Ibid, paras 213–​15. Ibid, paras 217–​20. 252 Campbell, above n 248. 253 See CEDAW/​C/​OP.8/​GBR/​1, paras 52–​3 (2018). 254 Ibid, para 72(a). 255 Ibid, paras 72(b)–​(e). 256 Ibid, paras 73–​5. 257 Ibid, paras 73–​5. 258 CEDAW/​C/​OP.8/​GBR/​2, paras 6–​13 (2018). 251

436  Andrew Byrnes findings, reiterated the argument based on devolution and the absence of a legislature in Northern Ireland to legislate on the matter, and rejected the Committee’s overall conclusion that there had been grave and systematic violations of the Convention.259 The inquiry into Kyrgyzstan involved alleged violations arising out of the practice of bride abduction in that country. The information before the Committee indicated that there were about 12,000 such cases each year, in which a young woman was abducted, sometimes with the acquiescence or complicity of her own family, and forced to marry, with the marriage often involving rape, and not being civilly registered. Abducted women were often trapped in the marriage due to stigmatization and were effectively not able to obtain redress. Although Kyrgyzstan had laws which criminalized this practice and on their face imposed significant penalties of imprisonment, few cases were prosecuted and the sentences that were imposed did not match the gravity of the offence. The Committee concluded that the situation involved both grave and systematic violations of multiple rights guaranteed by the Convention.260 While it accepted that Kyrgyzstan had relevant laws in place and had taken measures to address the problem, it considered that these fell short of the state’s obligations under the Convention not only to legislate but also to enforce its legislation, to take steps to destigmatize victims of bride kidnapping and eradicate underlying stereotypes and prejudices that underpinned such practices, to undertake more active law enforcement in such cases, and to build capacity and understanding among law enforcement authorities and the judiciary to provide redress, and also to improve access to legal aid and other support for women who sought redress. The Committee provided a lengthy list of recommended legislative changes as well as other measures.261 In its response, Kyrgyzstan did not reject the conclusion of the Committee, but reiterated its commitment to addressing the situation. It noted the budgetary and other difficulties in implementing all the measures that might be desirable, and listed in detail the existing and new and proposed measures it was undertaking to seek to eliminate the practice of bride abduction and its underlying causes.262

11.5  Impact of the Convention and the Committee’s work Although there are significant methodological challenges in isolating the impact of any one factor in bringing about change,263 overall the reporting procedure under the

259 Ibid, paras 33–​5. 260 Article 2(a)–​(h), read with Articles 5(a), 12, and 16 and various general recommendations: CEDAW/​C/​OP.8/​ KGZ/​1, para 84 (2018). 261 Ibid, paras 92–​8. 262 CEDAW/​C/​OP.9/​KGZ/​2 (2018). 263 See generally B Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (2009) and S Zwingel, Translating International Women’s Rights:  The CEDAW Convention in Context (2016). See also N Englehart and M Miller, ‘The CEDAW Effect: International Law’s Impact on Women’s Rights’ (2014) 13(1) Journal of Human Rights 22.

Committee on the Elimination of Discrimination Against Women  437 Convention appears to have contributed in many cases to changes in law and practice at the national level to bring these into conformity with the Convention. There is ample evidence to show that the work of the Committee has had an impact at the national level, in particular through providing the impetus for or adding its influence to calls for change in laws at the national level.264 Many NGOs have been able to build the Committee’s review of national reports into their campaigns for change with some success. A UNIFEM study in 1998265 documented the changes to constitutions, legislation and government policy that ratification of the Convention and use of its standards and the reporting procedure had brought about in a number of countries and a report published in 2000 demonstrated the impact that the Convention and the work of the Committee had had in ten countries in different regions.266 Former Malaysian CEDAW member Shanthi Dairiam cites further examples in which the interaction of the Committee’s review of a state report and the national NGOs’ use of the concluding comments has contributed to reform—​for example, the 1992 reform of more than twenty discriminatory provisions in the Country Code of Nepal, changes to provisions of the Hindu Succession Act in India relating to inheritance, amendments to the Personal Statute Code of Morocco in 2004, and amendments to laws in Kyrgyzstan on land rights in 2004.267 Former CEDAW member from Sri Lanka, Savitri Goonesekere, refers to the impact which the Committee’s concluding comments had on promoting the removal of discriminatory provisions in nationality laws in Fiji, Jamaica, Liechtenstein, Thailand, Burundi, India, and Sri Lanka, as well as influencing reforms to family law in Fiji and the Maldives.268 CEDAW’s work has also had an impact on regional developments; the Istanbul Convention, for example, clearly reflects the imprint of CEDAW’s jurisprudence.269 While CEDAW cannot claim the sole or even primary credit for many of these changes, it is clear that CEDAW’s views, the notice taken of them by governments and the use made of them by NGOs have in many cases contributed to the process of advocacy and change. While there are many other examples of such positive impact,270 there are of course many instances in which CEDAW’s concluding recommendations have not (yet) been implemented.

264 See A  Byrnes and M Freeman, ‘The Impact of the CEDAW Convention:  Paths to Equality’, Background paper prepared for the World Development Report 2012 (2011), available at: http://​papers.ssrn.com/​sol3/​papers. cfm?abstract_​id=2011655. 265 I  Landsberg-​Lewis (ed), Bringing Equality Home:  Implementing the Convention on the Elimination of All Forms of Discrimination Against Women (UNIFEM, 1998). 266 M McPhedran et al (eds), The First CEDAW Impact Study: Final Report (The Centre for Feminist Research, York University, 2000). 267 Dairiam, above n 126, 320–​3. 268 S Goonesekere, ‘Universalizing Women’s Human Rights Through CEDAW’ in The Circle of Empowerment, above n 1, 52, 58, 60. 269 See, eg, F Açar and R Popa, ‘From Feminist Legal Project to Groundbreaking Regional Treaty: The Making of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence’ (2016) (3) European Journal of Human Rights 287. 270 For other examples of the use of hearings before the Committee on the Elimination on Discrimination against Women to attract international attention to issues see CEDAW Colloquium, above n 125.

438  Andrew Byrnes

11.6  Conclusion Whatever difficulties it may have faced in its early years, CEDAW is now a well-​ established and prominent presence in the UN human rights system. Knowledge of the Committee is more widespread, and there is a broad constituency at the national and international levels with a commitment to supporting its work. The Committee’s procedures have made meaningful contributions in many countries to the pursuit of equality for women at the national, regional, and local level, through influencing law-​ making, policy-​making, judicial decisions, and providing support for women claiming the rights guaranteed by the Convention. One of the longest-​serving CEDAW members, the late Hanna-​Beate Schöpp-​Schilling, described the status of the Convention after twenty-​five years—​to which the CEDAW Committee had significantly contributed—​in the following way:271 [The Convention] is no longer understood as a more or less obligatory development instrument for the betterment of the situation of women that is only to be implemented progressively, but as a binding human rights treaty requiring the immediate realization of the human right of non-​discrimination and equal rights and equality.

Nevertheless, CEDAW faces many challenges. The Committee’s supporters and critics are becoming increasingly demanding in their scrutiny of the efficiency and quality of its work, and many international and national NGOs have high expectations of the difference that CEDAW can make to the realization of women’s equality at the national level. Yet there is much resistance to and regression in the protection of women’s human rights in many countries, and the treaty body system as a whole is stressed and continues to be under-​resourced.272 There is a need for CEDAW to continue its efforts to collaborate with and influence other bodies to incorporate gender in their human rights and other work, and to address the additional workload and challenges that have come with the Optional Protocol: these will continue to extend CEDAW as an institution, its members individually, and those who support its work.

271 H B Schöpp-​Schilling, ‘Das Übereinkommen zur Beseitigung jeder Form von Diskriminierung der Frau und sein Vertragsausschuss nach 25 Jahren—​Bilanz und Ausblick’ in A Zimmermann, T Giegerich, and U Heinz (eds), Gender und internationales Recht (Duncker & Humblot, 2007) 137, 138 (my translation). 272 See A/​73/​309 and Annexes (2018).

12 The Committee on Economic, Social and Cultural Rights Philip Alston*

12.1 Introduction Economic, social, and cultural rights continue, in most contexts, to be treated as the Cinderella rights of the international human rights regime. But no international body has contributed more to trying to transform this second-​class status than the Committee on Economic, Social and Cultural Rights (hereinafter ‘the Committee’1). It was created in 1985,2 met for the first time in 1987, and has held sixty-​five sessions as of February 2019. In addition to carrying out its principal mandate of monitoring states’ compliance with their obligations under the International Covenant on Economic, Social and Cultural Rights,3 it has put in place an important jurisprudential framework for a set of rights that was, and too often continues to be, poorly understood, even by those responsible for promoting them. Its contributions have significantly shaped the approach adopted to these rights by the overall international human rights system, as well as by constitutional and other courts around the world. In addition, the ESCR Committee has pioneered a great many of the procedural innovations that have subsequently transformed the UN human rights treaty body system as a whole into a force to be reckoned with. Thus, the Committee was the first to adopt the system of ‘Concluding Observations’ on state reports; to organize days of general discussion; to formally recognize and make publicly available material submitted by civil society groups; to organize briefing sessions at which civil society could present parallel reports; to proceed to examine reports if states cancelled at the last minute; and to examine the situation in a chronically non-​reporting state in the absence of a report and even a representative of the state concerned. Nevertheless, like the other treaty bodies, the Committee faces major challenges in the years ahead. Some of these come from the broader political context within which * Anna Bulman undertook superb research, including conducting many interviews, to assist in the preparation of this chapter. 1 Upper case is used in this chapter to distinguish terms that are used to connote particular practices and procedures used by the Committee. This includes General Comments, Concluding Observations, Views, and Statements. 2 The Committee was established pursuant to ESC Res 1985/​17. 3 GA Res 2200 A (XXI)(1966).

440  Philip Alston treaty bodies function, which includes an anti-​rights backlash in many societies that in turn emboldens some states to seek to undermine, often under the guise of improving or reforming, crucial parts of the system. Shrinking resources available to the UN as a whole and especially to the Office of the High Commissioner for Human Rights appear likely to have a major negative impact on the resources directly available to support the work of the committee, including staffing, meeting time, and technological and other forms of support. In addition, the increasing embrace of neoliberal economic policies by states and international institutions poses major new challenges for the Committee, given its pre-​eminent role in upholding the importance of ESCR and of ensuring an overall economic, social and political context in which those rights can be realized. In many respects the Committee has confronted problems which are common to all of the treaty bodies. In other respects, however, the challenges that confront it and the context in which it must work are significantly different from those of the other committees. Among the many factors that tend to distinguish its task are: the lack of conceptual clarity about many of the norms reflected in the Covenant; the ambivalence of most governments towards economic, social and cultural rights; the strong ideological undertones of the debate, especially in an age of the ascendance of neoliberal economic policies; the paucity of national institutions specifically committed to the promotion of economic rights qua rights; the complexity and scope of the information required in order to supervise compliance effectively; the largely programmatic nature of some of the rights; the more limited relevance of formal legal texts and judicial decisions; and the inadequate attention paid by most human rights groups to ESCR. The main thrust of this chapter is that the Committee has done a very impressive job in pioneering procedural innovations, developing an increasingly compelling jurisprudence surrounding ESCR, influencing the way in which national courts and other international bodies understand these rights, and in developing innovative responses to new and emerging problems, including climate change. It has, however, been less successful in terms of ensuring that its many initiatives and outputs have achieved commensurate impact and that task is a major challenge for the future.

12.2  The Committee: an overview (a)  Antecedents Although both of the Covenants came into force in early 1976, and the Human Rights Committee was established to monitor the Covenant on Civil and Political Rights the following year, it was not until 1979 that the Economic and Social Council’s arrangements to monitor states’ compliance with the International Covenant on Economic, Social and Cultural Rights got under way.4 For the first three years the 4 For a detailed history, see P Alston, ‘Out of the Abyss? The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 332. For a comparison of the two

The Committee on Economic, Social and Cultural Rights  441 job was done by a Working Group composed of governmental representatives appointed by the Council President.5 In response to widespread criticism of its work, it was ‘upgraded’ in 1983 to a Sessional Working Group of Governmental Experts, the members of which were elected by the Council for three-​year terms from nominees put forward by the States parties to the Covenant.6 But even in its new form, little was achieved. One review noted that its ‘examination of reports [was] cursory, superficial, and politicized’, and it was seen to be performing a ritual rather than examining compliance.7 In 1986, almost in desperation as a result of the Working Group’s inadequacies, the Council decided to ‘sub-​contract’ its responsibilities under the Covenant to an independent expert committee which was expected to emulate, as far as practicable, the approach followed by the Human Rights Committee. Thus was born the Committee, which met for the first time in 1987.

(b) Meeting time The Committee’s main activities consist of examining States parties’ reports, holding days of general discussion as a prelude to adopting General Comments, examining communications, and perhaps, in the future, undertaking inquiries. Much of this activity in turn contributes to the twin overall goals of developing a more comprehensive normative framework for ESCR and promoting the practical enjoyment of those rights. The length of its annual meeting time has changed significantly over time. Starting in 1987, it met only once a year in Geneva for three weeks. In 1990 this expanded to two sessions each year, although the overall meeting time varied according to ECOSOC authorizations reflecting both workload and resource considerations. From 2015 to 2017, the Committee held three sessions annually. In 2018 and 2019 it has returned to two sessions of three weeks each, and in 2020 it will hold one session of three weeks and another of two weeks. The travel and subsistence expenses of its members are paid by the United Nations,8 thus underlining their independence from the governments that nominated them. A snapshot of its activities in 2018 indicates that its two sessions consisted of a total of thirty-​seven plenary meetings (generally of three hours each), one day of general discussion, two meetings with States parties, and an additional nine days of meetings of a pre-​sessional Working Group. It examined reports from twelve states, received

Covenant committees see H Keller and C Heri, ‘The Committees on Human Rights and Economic, Social and Cultural Rights’ in S Chesterman, D Malone, and S Villalpando (eds), The Oxford Handbook of United Nations Treaties (Oxford University Press, 2019). 5 ESC Res 1988 (LX) (1976). 6 ESC Res 1982/​33, para b. 7 Commentary, ‘Implementation of the International Covenant on Economic, Social and Cultural Rights: ESOSOC Working Group,’ 27 The ICJ Review, December 1981, p 26. 8 ESC Res 1985/​17, para e.

442  Philip Alston 162 communications, debated the content of several draft General Comments, and considered dozens of ‘parallel reports’ from civil society groups.9

(c)  Membership The eighteen members of the Committee are required to be ‘experts with recognized competence in the field of human rights, serving in their personal capacity.’10 ‘Due consideration’ should be given in their election to ‘equitable geographical distribution and to the representation of different forms of social and legal systems’.11 Members of the Committee are elected for four years with elections for half the membership being held every two years. Members are eligible for re-​election.12 The key issues in terms of membership are the competitiveness of the elections, the range of expertise, the extent of independence, the degree of geographical distribution, and the gender composition. For elections to the Committee, only States parties to the Covenant can nominate persons.13 Although there appears to be nothing to prevent the nomination of an individual who is not a national of a State party, there have been no precedents and the chances of election would probably be slight. Unlike elections for the Human Rights Committee in which only States parties can vote, all members of the Economic and Social Council, whether or not they are parties to the Covenant, are entitled to take part in the secret ballot by which the members of the Committee are elected.14 Commentators have expressed concern about how this plays out in practice, citing lack of transparency and rigor ‘such that it is difficult for civil society to engage and for electing States to make solid assessments as to the expertise and independence of candidates.’15 This is said to be compounded by a ‘concerning practice’ of certain States nominating ‘the same person for two different Committees at the same time’.16 The fact that elections take place in New  York, rather than Geneva also facilitates ‘vote swapping’, whereby states agree to vote for each other’s nominees in various forums, irrespective of the merits of the actual candidates.17 This makes it harder to ensure the independence of candidates and to achieve gender and regional balance.

9 See generally Committee on Economic, Social and Cultural Rights—​2018 Yearbook (The Global Initiative for Economic, Social and Cultural Rights, 2019). 10 ESC Res 1985/​17, para b. 11 Ibid. 12 Ibid, para c(i), (ii). 13 ESC Res 1985/​17, para c. 14 Ibid. 15 See, eg, Paper:  23 June 2016 NGO meeting with CESCR and HRC (GIESCR, CCPR, and Friedrich Ebert Stiftung, 2016) 11–​12; Optimizing The UN Treaty Body System: Academic Platform Report on the 2020 Review (Académie de Droit International Humanitaire et de Droits Humains a Genève, 2018); W Park, Report: Towards a 21st Century Treaty Body System (Wilton Park WP1574, 2017). 16 23 June 2016 NGO meeting with CESCR and HRC, above n 15, pp 11–​12. 17 Park, above n 15, 20.

The Committee on Economic, Social and Cultural Rights  443 In terms of the range of expertise represented on the Committee, the membership, as of 2019, may be classified in terms of the following primary occupations:18 nine academics; one judge; one NGO official; one national human rights institution official; one practicing lawyer; and five current or retired diplomats/​government officials. It has been suggested that limiting the composition of the Committee primarily to members with a legal background, rather than seeking experts from economics, other social sciences, or sector-​specific backgrounds such as health or education, misses a valuable opportunity to ‘enrich the Committee’s work and deepen its understanding of the nonlegal obstacles countries face in realizing the rights’.19 The independence of members is a constant challenge. The ideal is that members should be independent, particularly from governments, although broader issues of affiliation with other stakeholders like NGOs might also reasonably be raised. In addition, it is true that in theory an academic might be as close to his or her government as an actual official. In practice, however, most academics who have belonged to the Committee have demonstrated strong independence. From the outset, the Committee has also had to function with a number of members who have clearly seen themselves as representing not just their countries but also the government in power at the time. Members have included sitting foreign ministers, sitting deputy foreign ministers, and a significant number of current or retired ambassadors and other officials. According to various observers, this problem continues to affect the independent functioning of the Committee today. One of the best protections against the polarization that can result is to ensure that decisions are taken by consensus. But this safeguard will not be effective in contexts in which a handful of members adopt an entirely inflexible approach. Regional and other forms of balance are reflected in the requirement to take account in elections of ‘equitable geographical distribution and to the representation of different forms of social and legal systems.’20 However, this general principle has been translated into a relatively inflexible formula whereby each of the five geopolitical regional groupings has three members and an additional three seats are allocated ‘in accordance with the increase in the total number of States parties per regional group.’21 From time to time, proposals have been made to move beyond the Cold War era formula of dividing the world, for the purposes of UN elections and appointments, into African States; Asian States; Western European and Other States; Eastern European States; and Latin American and the Caribbean States. But these groupings are rarely transcended.22 The Committee currently consists of three members each from Western and Eastern Europe, and four members each from Africa, Asia/​Pacific, and Latin

18 Based on the curriculum vitae provided on the Committee website at https://​www.ohchr.org/​EN/​HRBodies/​ CESCR/​Pages/​Membership.aspx. 19 F Coomans, ‘The UN Committee on Economic, Social, and Cultural Rights’ in G. Oberleitner (ed), International Human Rights Institutions, Tribunals, and Courts (Springer, 2019) 143 at 146. 20 Ibid. 21 Ibid. 22 S Besson, ‘The Influence of the Two Covenants on States Parties Across Regions’ in D Moeckli, H Keller, and C Heri (eds), The Human Rights Covenants at 50: Their Past, Present, and Future (Oxford University Press, 2018) 247, quoting UN General Assembly Resolution 64/​173.

444  Philip Alston America/​Caribbean. This means that one-​third of the Committee’s members are currently from Europe, thus compounding the problem that in the overall treaty body system ‘some 25 countries occupy almost half of the seats on treaty bodies.’23 In gender terms, the committee’s composition has always been poorly balanced. In 2019 it consists of twelve males and six females, and in the past the ratio of men to women has sometimes been even worse.

12.3  The Committee’s principal activities The analysis that follows focuses on each of the committee’s principal functions.24 Inevitably, this approach does not capture all of the ways in which the Committee, its Chairperson and its members contribute to the overall endeavour of promoting a better understanding of ESCR and of the ways in which they relate to other human rights and to the activities of a broad array of other actors. Some of these are addressed in section 12.4, below. Before analysing the procedures actually followed by the Committee it is necessary to underscore the extent to which theory and practice diverge by looking at the actual text of the implementation provisions contained in Part IV of the Covenant. Articles 16–​22 may be summarized, in formalistic language that approximates that used in the Covenant, as follows. The States parties are required to report, in accordance with a programme to be determined by the Economic and Social Council, after consultation with the specialized agencies concerned and the States parties, on the measures they have adopted and the progress they have made in achieving the observance of the rights recognized in the Covenant. The reports may indicate ‘factors and difficulties’ affecting the degree of fulfilment of the obligations. They are to be submitted to the Secretary-​General, who is required to transmit copies to the Council and copies of all of the relevant parts to the agencies. Where information has already been furnished to an agency, it is sufficient for the report to refer thereto. Provision is made for arrangements between the Council and the agencies whereby the latter will report on progress achieved in the observance of the Covenant. The Commission on Human Rights may receive from the Council copies of both the State and agency reports and may make ‘general’ recommendations thereon. The agencies and States parties are entitled to submit their comments on any such recommendations to the Council. The Council, in turn, may submit reports to the General Assembly with recommendations of a general nature and a summary of the information received. It may also bring to the attention of the agencies matters that might warrant the provision of technical assistance or the taking of other international measures. 23 Park, above n 15, 19. 24 See generally M Odello and F Seatzu, The UN Committee on Economic, Social and Cultural Rights: The Law, Process and Practice (Routledge, 2013).

The Committee on Economic, Social and Cultural Rights  445 By far the most striking feature of these provisions is the very limited extent to which they reflect the actual practice that has evolved in the implementation of the Covenant. As we shall see below, the creation of the Committee and the entrusting to it of virtually all of the Council’s substantive functions is the most significant departure from the actual text of the Covenant. In addition, however, the resulting institutional and procedural arrangements have evolved to an extent that they would barely be recognizable by an observer informed only by the formal provisions of the Covenant. Thus, for example, the respective roles played by the Commission, the specialized agencies, and the Council have all been radically different from that foreseen for each of them in the Covenant. Moreover, the constructive dialogue that has taken place between the Committee and States parties bears only a remote resemblance to the rather constipated form of paper warfare apparently envisaged by the drafters of the Covenant. By the same token, one must also be struck by the extent to which the arrangements that have emerged, albeit in a very piecemeal fashion, resemble some of the proposals that were made, but firmly rejected, during the drafting process. We turn now to examine briefly some of those proposals.

(a)  Examining States parties’ Reports i. Goals of reporting A rapid review of the relevant provisions of the Covenant, as well as of the procedures followed by the Committee, could well lead a casual observer to the conclusion that the examination of a State party’s report by the Committee is the ultimate objective of the entire exercise.25 If, however, that exercise is seen in its proper perspective it should be considered to be a relatively routine and modest part of a far grander enterprise: the taking of measures designed to promote realization of the economic, social and cultural rights of every individual living within the jurisdiction of the state concerned. Viewed in this light, reporting is only one part of a continuing process, the domestic rather than the international ramifications of which should be far more significant. This is the message that the Committee sought to convey in its very first General Comment, which was devoted to the question of ‘reporting by States parties’.26 In its analysis the Committee specifically rejected the view that ‘reporting is essentially only a procedural matter designed solely to satisfy each State party’s formal obligation to report to the appropriate international monitoring body’. To underscore its point, it identified seven different objectives which reporting should promote. In brief, they are: (1) to ensure that a comprehensive initial review of national legislation, administrative rules and procedures, and practices is undertaken either before or very soon after ratification; (2) ‘to ensure that the State party monitors the actual situation with 25 For a succinct statement of the procedures followed by the Committee, see the separate chapter entitled ‘Overview of the Present Working Methods of the Committee’ which is contained in each year’s Annual Report. See, for example, UN Doc E/​2018/​22, para 21. 26 E/​1989/​22, Annex  III.

446  Philip Alston respect to each of the rights on a regular basis and is thus aware of the extent to which the various rights are, or are not, being enjoyed . . .’; (3) ‘to provide the basis for the elaboration of clearly stated and carefully targeted policies, including the establishment of priorities which reflect the provisions of the Covenant . . .’; (4) to facilitate public scrutiny of relevant government policies and to encourage the involvement of the various sectors of society in the formulation, implementation and review of the policies in question; (5) ‘to provide a basis on which the State party itself, as well as the Committee, can effectively evaluate the extent to which progress has been made towards the realization of the obligations contained in the Covenant . . .’; (6) ‘to enable the State party itself to develop a better understanding of the problems and shortcomings encountered in efforts to realize progressively the full range of economic, social and cultural rights’; and (7) ‘to facilitate the exchange of information among States and to develop a better understanding of the common problems faced . . .’ The principal significance of this conception of the reporting process lies in the emphasis it places upon the vital importance of a range of activities taking place at the national level, quite apart from the actual examination of the report by the Committee. It also serves to emphasize that reporting is much more than a gesture requiring a flurry of diplomatic activity for a short time every few years. ii. Periodicity and types of report In 1976, the Council set up a system under which States parties were asked to present initial reports at three-​yearly intervals, each dealing with one cluster of the rights recognized in Part III of the Covenant (ie, Articles 6–​9, 10–​12, and 13–​15). An entire cycle thus took nine years to complete and neither the State itself nor the Working Group ever got an up to date and comprehensive picture of the situation. Subsequent periodic reports were required at two-​yearly intervals, making for a six-​year cycle. The principal explanation for the system was to facilitate the involvement of the specialized agencies, since each of the clusters of rights corresponded to the concerns of specific agencies. In 1988, at its second session, the Committee introduced a system of single ‘global’ reports to be presented by each State party at five-​yearly intervals.27 The objectives of the change were to reduce the total number of reports submitted; ease the workload of the national officials responsible for preparing reports; facilitate the Committee’s appreciation of the overall situation in the relevant state; make the reports more comprehensible to concerned NGOs and the public at large; and synchronize the reporting schedule with that applying under most other human rights treaties. The Committee long sought to make use of reporting guidelines in order to ensure that reports were comprehensive, contained essential information, and followed an established structure. Initially, it inherited guidelines from the Working Group that had been suggested by the key UN specialized agencies and compiled by the Secretariat in 1976–​77.28 Those guidelines managed to combine inordinate length with excessive

27

E/​1988/​14, para  351.

28 The guidelines were reproduced in E/​C.12/​1987/​2.

The Committee on Economic, Social and Cultural Rights  447 vagueness and generality, and were largely ignored. The Committee thus devoted considerable time to drawing up a new set of guidelines which were adopted in 1991. Those too were later revised by a new set adopted in 2008. No revisions have since occurred and the most recent developments described below make it unlikely that such guidelines will play an important role in the future. Since 2011 the Committee has devoted three meetings, of three hours each, to consider initial reports, and two meetings for follow-​up reports. Initially there was no limit to the length of a report that a state might choose to submit, but today the UN imposes strict requirement on all documentation, leading states to submit much more succinct reports. For many years, the Committee has made use of a pre-​sessional working group, composed of five members, whose job is to draw up a list of questions that would be used to structure the Committee’s dialogue with reporting states by facilitating a more focused discussion. One member of the working group takes the lead in drawing up the list, but the final version is adopted by the group as a whole. In recent years, however, the treaty body system as a whole has been under considerable pressure to review its procedures in response to General Assembly resolution 68/​268 (2014) on strengthening and enhancing the effective functioning of the human rights treaty body system. This process has been driven by competing imperatives with some seeing it as a means to reduce the burden on states and to introduce more efficiencies and cost-​cutting, while others speak of improved coordination, more meaningful outcomes, and more staff resources for the system. Under the shadow of that process, the Committee decided in 2014 to experiment with a system pioneered by the Human Rights Committee which gives certain states the option of responding to a list of issues prior to reporting (LOIPR), rather than submitting an overall report following the reporting guidelines. The option was initially provided only to States parties that had already submitted at least three periodic reports. Bulgaria, New Zealand and Spain took the lead and another four states due to report in 2020 have opted for the same system. While the Committee itself decided to make the procedure more generally available in future, it also informed a meeting of States parties that the new style reports ‘had varied in quantity and quality’ and that the Committee had yet to undertake a detailed assessment of the new procedure’s merits. The principal concern is that by limiting the review to a maximum of twenty-​five questions adopted by the Committee, there might be important issues that could not be covered in the reporting process. A member of the Committee gave the example of its dialogue with Spain which had focused heavily on the impact of austerity measures and thus was able to touch only briefly on other issues.29 Various other innovations are also under consideration in the period leading up to the 2020 review. Members of the Committee informed states in 2019 that it is reluctant to apply the LOIPR procedure in the case of initial reports but is open to greater coordination of reporting calendars and issues with the Human Rights Committee when

29 E/​C.12/​2019/​SR.29 (15 March 2019), para 20.

448  Philip Alston both committees are considering the same state. It was also hesitant to explore the use of parallel chambers (essentially involving dividing the committee into two groups), especially for the consideration of States’ reports, although perhaps not for the purposes of examining communications.30 More surprisingly, the Committee was apparently sceptical of proposals that country rapporteurs might visit the states concerned to obtain a more informed view of the situation in advance of the dialogue. The justification offered was that states were unlikely to agree to such visits.31 This contrasted with the willingness of the Committee during the 1990s to develop such a system. Thus in 1993, one member visited Hong Kong, at the invitation of some leading NGOs.32 And in 1995, two members of the Committee visited Panama after the Committee had expressed strong doubts over several issues after considering the government’s report. The Committee made several requests to undertake the visit and it took three years to obtain the government’s agreement to what was termed a ‘technical assistance’ mission. The resulting week-​long visit had a strong official flavour and resulted in further detailed recommendations.33 But the Committee’s reluctance to embrace some of the suggested innovations might come under pressure as a result of a ‘position paper’ adopted by a meeting of the Chairpersons of the various treaty bodies in June 2019. The paper, which outlines proposals that all of the Chairs endorsed but will need to be considered by each of the treaty bodies individually, endorsed the use of the simplified reporting procedure (SRP) based on the use of the LOIPR for periodic reports and possibly for initial reports. The Chairs called for all treaty bodies to coordinate their respective LOIPRs and agreed that the ESCR Committee and the Human Rights Committee ‘will review countries on an 8-​year cycle and will synchronize the timing of their reviews’. Once a state has been scheduled to report, the review will occur even if no report has been submitted. And States parties will have the option to submit a single consolidated report to both Covenant Committees. The position paper also agreed that all treaty bodies would increase ‘their capacity to review state party reports and individual communications, for example by working in chambers, working groups or country teams’ which would enable the Covenant Committees to consider as many as twenty-​five reports per year, or double the number examined in 2018. The Chairs also agreed to explore the possibility of conducting regionally-​based dialogues between States parties and representatives of the treaty body, with the Concluding Observations being subsequently adopted by the Committee as a whole.34 These proposals, which the ESCR Committee might or might not endorse, nevertheless clearly presage potentially major changes in the procedures to be used in the future. Greater use of the SRP will place an even higher premium on the availability of

30 Ibid, para 9. 31 Ibid. 32 Concluding observations on the report of the United Kingdom, E/​C.12/​1994/​19 (21 December 1994). 33 Report on the Technical Assistance Mission to Panama of the Committee on Economic, Social and Cultural Rights, E/​C.12/​1995/​8 (20 June 1995). 34 Treaty Body Chairpersons Position Paper on the future of the treaty body system (2019).

The Committee on Economic, Social and Cultural Rights  449 alternative reports from civil society and the research capacity of the Secretariat, since there will be no initial report from the State party. But where civil society is not strong, and unless the Secretariat receives significantly more resources, the likely result will be to place a heavier burden upon the individual members of the Committee, many of whom will be poorly placed to respond effectively. Under the existing system, the dialogue with the State party is led by the member of the Committee who was responsible for dealing with the relevant cluster of issues in the working group context. Other Committee members may then comment or pose questions before the Government representatives are given an initial opportunity to respond. More complex questions can be dealt with either at the following meeting of the Committee, or in writing afterwards. Members of the Committee are free to pursue specific issues in the light of the replies thus provided, but are expected to avoid repeating questions that have already been posed or answered and to refrain from speaking for more than five minutes in any one intervention.35

The outcome of the dialogue is reflected in the ‘Concluding Observations’. Until 1991, the treaty bodies avoided reaching any consensus conclusions and instead simply compiled the opinions expressed by individual members. The ESCR Committee took the lead in initiating a set of consolidated and agreed conclusions, which provided a meaningful outcome to the reporting process. These observations are drafted by the country rapporteur, with assistance from the Secretariat. The draft is then considered in private session by the Committee, before being adopted, ideally by consensus, and made public. The state concerned then has the option to submit written comments in response, but relatively few do so, and the Committee does not respond formally to any such document. The content of the Concluding Observations has evolved very considerably over time and the range of issues addressed and the approach adopted reveals much about the Committee. Section 12.5 below provides an evaluation of this work. iii. Follow-​up The challenge of following-​up on recommendations to States parties by the treaty bodies has long been under consideration. In 1999, the Committee adopted a procedure for follow-​up,36 but it subsequently proved reluctant to make use of it. In 2017, however, it adopted a new procedure that involved appointing a rapporteur on follow-​ up to Concluding Observations for an initial one year period,37 and the selection of up to three recommendations from its Concluding Observations that ‘require urgent 35 E/​2019/​22, para  27. 36 E/​2000/​22, para  38. 37 ‘CESCR note on the procedure for follow-​up to concluding observations’ (2017), para 3, available at https://​ tbinternet.ohchr.org/​_​layouts/​15/​treatybodyexternal/​Download.aspx?symbolno=INT%2fCESCR%2fFGD%2f88 26&Lang=en.

450  Philip Alston action, and that should be attainable within a period of 24 months’.38 States are then required within that timeframe to produce a brief report on ‘concrete measures’ taken in response.39 The Committee then considers the follow-​up report and any relevant information from civil society in closed meeting and, within three weeks, transmits its assessment to the state. For this purpose it uses the following classifications: sufficient progress; insufficient progress; lack of sufficient information to make an assessment; or ‘no response’. In the latter case, ‘the selected recommendations will be considered as a priority during the next dialogue’. As of March 2019, follow-​up reports are available in relation to five countries (Australia, Liechtenstein, the Netherlands, the Russian Federation, and Uruguay). The kinds of Concluding Observations identified for follow-​up included: adequacy of social security benefits and conditions placed on access to social security (Australia); and measures to ensure compliance with ICESCR by companies operating within the state’s territory and abroad and the removal of legal and practical obstacles to holding companies accountable for rights violations (Netherlands).40 In April 2019, the Committee released its assessment reports for Australia, Liechtenstein, Netherlands, and Uruguay.41 Each country received a ‘grade’ for each of its responses, with three of the four countries receiving at least one ‘insufficient progress’. Relatively few NGO reports were submitted in relation to the new follow-​up procedure (three for Australia and one for Uruguay), but this seems to have been due to inadequate notification on the part of the Secretariat. Once this flaw is ironed out, the new follow-​up procedure would seem to have major potential to enhance the extent to which states respond to the most pressing recommendations by the Committee. iv. Overdue reports In the 2000s the Committee had a significant backlog in its consideration of reports. This was problematic because it meant that some reports were out of date when finally considered, because of the Committee’s inability to process them sooner. But by extending the Committee’s sessions and reducing the time devoted to periodic reports, the Committee eliminated the backlog in 2017. It noted, however, that its success was also partly due to ‘the low rate of submission of reports in 2016 and 2017’.42 The Committee’s Chairperson suggested that such non-​ compliance was due to reasons including ‘situation[s]‌of conflict or post-​conflict to lack of human and material resources’.43 But a lack of political will, and the

38 A  consolidated, revised version of the note can be downloaded at https://​www.ohchr.org/​Documents/​ HRBodies/​CESCR/​Follow-​upConcludingObservations.docx. 39 CESCR note, above n 38, para 4. 40 Committee on Economic, Social and Cultural Rights—​2017 Yearbook (Global Initiative for Economic, Social and Cultural Rights, 2018). 41 See https://​tbinternet.ohchr.org/​_​layouts/​TreatyBodyExternal/​FollowUp.aspx?Treaty=CESCR&Lang=en. 42 E/​2019/​22, para  19. 43 CESCR Yearbook 2017, above n. 40, p 4, Message from the Committee Chair.

The Committee on Economic, Social and Cultural Rights  451 absence of any meaningful pressures to resolve the situation, would seem at least as pertinent.44 v. Responding to non-​reporting The Committee still has a major problem of overdue reports. In 2019 there were twenty-​five overdue initial reports and forty-​five overdue periodic reports, for a total of seventy overdue reports.45 This is the second highest figure for the core treaties, although CCPR is close at sixty-​five and CAT at sixty-​four, while CERD tops the charts at ninety-​four. The need for the Committee to explore innovative solutions is underscored by the relative intractability of the problem. This is illustrated by the fact that twenty-​three of the reports under the ICESCR are less than five years overdue, sixteen are between five and ten years overdue, and thirty-​one are more than ten years overdue. The treaty bodies have so far resisted suggestions that a special arrangement be made for states with very small populations, which unsurprisingly continue to make up an important part of the long-​term backlog.46 In its early years, the ESCR Committee created the precedent of proceeding to examine the situation in a State party even in the absence of a report, provided that every effort had been made to obtain a report and ample notice of the procedure had been provided. While some other treaty bodies, including the Human Rights Committee, have subsequently adopted that approach, the ESCR Committee is now ‘against systematic use of that practice’. Instead, it has suggested that the Human Rights Council should use the Universal Periodic Review procedure to encourage compliance with reporting obligations. The Committee also favours the strengthening of ‘national mechanisms for reporting and follow-​up’.47 Based on the non-​reporting procedure it adopted in 2007,48 and the broader treaty body capacity-​building programme,49 the Committee succeeded in attracting five long-​overdue reports that were considered during 2018.50 It remains to be seen, however, whether such momentum can be maintained.

44 For a detailed analysis of the options see P. Alston, ‘Final report on enhancing the long-​term effectiveness of the United Nations human rights treaty system’, E/​CN.4/​1997/​74 (27 March 1997). 45 OHCHR, List of States parties without overdue reports, available at: https://​tbinternet.ohchr.org/​_​layouts/​ TreatyBodyExternal/​LateReporting.aspx, filtered by treaty, viewed online on 4 April 2019. The countries are: Afghanistan, Albania, Algeria, Bahamas, Bahrain, Barbados, Belize, Brazil, Cambodia, Chad, Congo, Côte d’Ivoire, Croatia, Democratic People’s Republic of Korea, Democratic Republic of the Congo, Djibouti, Dominica, Egypt, Equatorial Guinea, Eritrea, Estonia, Eswatini, Ethiopia, Gabon, Gambia, Georgia, Ghana, Grenada, Guinea-​ Bissau, Haiti, Hungary, Iceland, India, Iran (Islamic Republic of), Jamaica, Japan, Jordan, Lao People’s Democratic Republic, Latvia, Lesotho, Liberia, Libya, Luxembourg, Madagascar, Malawi, Maldives, Malta, Mauritania, Nicaragua, Nigeria, Panama, Papua New Guinea, Peru, Rwanda, Saint Vincent and the Grenadines, San Marino, Seychelles, Sierra Leone, Solomon Islands, Somalia, State of Palestine, Suriname, Syrian Arab Republic, Timor-​ Leste, Togo, Trinidad and Tobago, Turkey, United Republic of Tanzania, Zambia, Zimbabwe. 46 P Alston, ‘Interim report on study on enhancing the long-​term effectiveness of the United Nations human rights treaty regime’, submitted to the World Conference on Human Rights, A/​CONF.157/​PC/​62/​Add.11/​Rev.1, para 87 (22 April 1993). 47 E/​C.12/​2019/​SR.29, para  10. 48 E/​2007/​22, para 42. As cited in E/​2019/​22, para 37. 49 Established pursuant to General Assembly resolution 68/​268. 50 They were Bangladesh, Cabo Verde, Central African Republic, Mali, and Niger.

452  Philip Alston vi. Non-​appearance Very early on in its existence the Committee was compelled to deal with the challenge posed by States parties whose presentations were scheduled but who then cancelled out at the last moment. In 1991, Iran sought to do so for the fourth time in a row, and Afghanistan and Panama also indicated that they wished to defer consideration of pending reports for a third time. In response, the Committee decided it had no choice but to adopt a hard line because such last-​minute changes to the schedule were disruptive for all stakeholders and were especially problematic for the Committee itself in terms of making full use of the limited time available to it. It thus decided not to accede to such requests but instead ‘to proceed with its consideration of all scheduled reports, even in the absence of a representative of the State party concerned’. Only in exceptional situations, such as force majeure, does it make exceptions as it did for Mexico in 2017 in the wake of an earthquake.51

(b)  Days of general discussion The Committee realized at an early stage of its work that the task of fleshing out the normative framework of the Covenant could not be left to Governments alone. Instead the need was to mobilize other forces with the necessary expertise and interest and to ensure that the Committee itself was closely involved in that work. For that purpose the Committee designated one day to be set aside each year as a ‘day of general discussion’. The originally stated purpose was threefold: (i) to assist the Committee in ‘developing in greater depth its understanding of the relevant issues’; (ii) to enable it ‘to encourage inputs into its work from all interested parties’; and (iii) to help the Committee to lay the basis for its future General Comments.52 For the first couple of decades, the day was used to enable the Committee to detach itself, temporarily, from the grind of its day-​to-​day examination of reports and to engage with a diverse array of experts on relevant issues. Between 2011 and 2014, however, no such days were held, and in recent years the day has served the almost exclusive purpose of assisting in the preparation of General Comments. Thus, recent days of general discussion have focused on: the right to enjoy the benefits of scientific progress and its applications and other provisions of Article 15 on the relationship between science and economic, social and cultural rights (2018); state obligations under the Covenant in the context of business activities (2017); the right to just and favourable conditions of work (2015); the right to sexual and reproductive health (2010); non-​discrimination and economic, social and cultural rights (2008); the right to take part in cultural life (also 2008); the right to social security (2006); the right to work (2003); and equal right of men and women to the enjoyment 51 E/​2018/​22, paras  37–​8. 52 See ‘General Discussion Days’, available at:  https://​www.ohchr.org/​EN/​HRBodies/​CESCR/​Pages/​ DiscussionDays.aspx.

The Committee on Economic, Social and Cultural Rights  453 of economic, social and cultural rights (2002).53 The discussions have provided an invaluable means by which the Committee has achieved well-​targeted inputs into its normative deliberations.

(c)  General comments Following the Committee’s first session, in 1987, the Economic and Social Council instructed it to pay ‘particular regard to practices followed by other treaty bodies, including the preparation of General Comments by the Human Rights Committee’.54 This move was not especially controversial because up to that time the latter’s comments, except perhaps in relation to the right to life, were not perceived by governments to have been especially problematic. The ESCR Committee responded with alacrity to the Council’s invitation and promptly enshrined the power to adopt General Comments in its Rules of Procedure. The Committee’s initial strategy was to underscore that it was merely following the lead of the Human Rights Committee in order to protect itself from criticism that it was being unduly innovative, an offence which would have been frowned upon by many states. It thus adopted a statement which was almost identical to that of the other committee to describe the purpose of its General Comments. In substantive terms, at the outset, the Committee sought to make its comments precise, somewhat legalistic, and closely aligned to the text of the Covenant. The initial set of Comments were also used to reinforce the general framework within which the Committee was seeking to situate its work rather than focusing immediately on the content of specific rights. The latter strategy was dictated by two considerations: to provide a convincing framework within which the specifics could subsequently be developed, and to avoid confronting states parties on the really controversial issues until such time as the Committee had gained sufficient experience and had consolidated its standing within the human rights system. As of early 2019, the Committee had adopted a total of twenty-​four General Comments. These can be divided into two phases. The first covers the ten-​year period from 1989 until 1999, and includes eleven Comments dealing with: (1) the international framework (on reporting obligations, international technical assistance measures, and sanctions); (2) the domestic legal framework (the nature of States’ parties obligations, domestic application of the Covenant, and the role of national institutions); and (3) specific forms of discrimination in the enjoyment of the rights (persons with disabilities, and older persons). In addition, it adopted two Comments dealing with the right to housing, propelled by the fact that this was the issue in relation to which it received the most detailed and compelling NGO-​generated inputs of reliable, country-​specific,



53 Ibid.

54 ESC Res 1987/​5, para 9.

454  Philip Alston information.55 In its second phase, beginning in 1999, the Committee has adopted thirteen Comments. Many address in a comprehensive fashion the substantive content of some of the major rights recognized in the Covenant (specifically the rights to food, education, health, water, intellectual property, work, social security, and culture). In addition, it has adopted three wide-​ranging Comments on the equal rights of men and women, non-​discrimination, and business.56 Initially, all of the second-​phase Comments followed a six-​part structure endorsed by the Committee in November 1999:57 (1) introduction; (2) normative contents of the right; (3) State party’s obligations; (4) obligations of other relevant actors; (5) violations; and (6) recommendations for States parties. This framework has since evolved significantly, although the Committee has not revised its relevant guidelines. While the Committee’s first-​phase Comments averaged just under five pages each, the second-​phase Comments average almost sixteen pages, or more than three times as long. By comparison, the thirty-​three General Comments adopted by the Human Rights Committee between 1981 and 2009 averaged around three pages each.58 The three adopted by that Committee between 2011 and 2018, however, have averaged nineteen pages. The second-​phase approach of the ESCR Committee seems very likely to have influenced the Human Rights Committee as well as the Committee on the Rights of the Child which, since 2001, has adopted twenty-​one General Comments at an average of over eighteen pages each. The ESCR Committee’s second phase represented a significant change of approach in several respects. Its General Comments are now more in the form of wide-​ranging policy statements and are less readily distinguishable than before from the routine laundry lists of demands emanating from a range of other UN bodies and agencies. Perhaps not coincidentally, the influence of UN specialized agencies was, until recently, obvious in the drafting process. Most of these Comments seem more directed to a constituency of UN agencies and non-​governmental organizations than to policy-​makers or courts. The impact of this move away from a more narrowly normative conception of the function of General Comments to a type of political/​diplomatic is difficult to assess. 55 The focus of these first phase comments was as follows: No 11 (1999) on plans of action for primary education; No 10 (1998) on the role of national human rights institutions in the protection of economic, social and cultural rights; No 9 (1998) on the domestic application of the Covenant; No 8 (1997) on the relationship between economic sanctions and respect for economic, social and cultural rights; No 7 (1997) on the right to adequate housing; No 6 (1996) on the economic, social and cultural rights of older persons; No 5 (1995) on persons with disabilities; No 4 (1992) on the right to adequate housing; No 3 on the nature of States parties obligations; No 2 (1990) on international technical assistance measures; and No 1 (1989) on reporting by States parties. 56 The focus of the second-​phase comments has been as follows: No 24 (2017) on state obligations under the Covenant in the context of business activities; No 23 (2016) on the right to just and favourable conditions of work; No 22 (2016) on the right to sexual and reproductive health; No 21 (2009) on the right of everyone to take part in cultural life; No 20 (2009) on non-​discrimination in economic, social and cultural rights; No 19 (2008) on the right to social security; No 18 on the right to work; No 17 (2006) on the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author; No 16 (2005) on the equal right of men and women to the enjoyment of all economic, social and cultural rights; No 15 (2003) on the right to water; No 14 (2000) on the right to the highest attainable standard of health; No 13 (1999) on the right to education; No 12 (1999) on the right to adequate food. 57 UN Doc E/​2000/​22, Annex IX. 58 See UN Doc HRI/​GEN/​1/​Rev.9.

The Committee on Economic, Social and Cultural Rights  455 In each of its annual reports, the Committee repeats a standard line about how the outline for drafting General Comments on specific rights enshrined in the Covenant was adopted at its 21st Session, but that ‘the subject matter of a particular General Comment would influence its overall structure’ and that ‘the outline was not intended to be strictly adhered to’ and instead provides ‘useful signposts and a checklist of issues to be considered in the process of drafting a general comment’.59 There does not appear to have been any comprehensive systematic study of the impact of the Committee’s General Comments in terms, for example, of references made to them in national court decisions, international legal proceedings, governmental policy statements, the work of national human rights institutions, or in scholarly analyses.60 Some scholarly work has been done on the significance and status of General Comments,61 but very little of this has been specifically focused on the ESCR Committee.62 The paucity of scholarly analysis is all the more surprising given the fact that General Comment No 3 (1990) on ‘the nature of States parties’ obligations’ was, in some respects, the foundation stone upon which the Constitutional Court of South Africa built its important early jurisprudence on social rights. Similarly, the Colombian Constitutional Court described the ICESCR Committee’s General Comments as being those of an ‘authorized interpreter’.63 Other influential comments include General Comment No 15 (2002) on the right to water, which seems to have played an important role in promoting acceptance of the notion that there is a human right to water, despite the fact that it is not explicitly acknowledged in the ESCR Covenant, and General Comment No 14 (2000) on the right to health which has also attracted extensive scholarly attention. But while some of the Comments seem to have been very influential, judging by the extent to which they are referred to by various actors, others seem to have had little discernible impact. Recent research has suggested that the Committee’s comments have had significant take-​up by other UN human rights bodies addressing social rights issues.64 As of early 2019, the Committee is currently at different stages of developing draft General Comments on land, science, and sustainable development.65 The most 59 See, eg, E/​2019/​22, para 64. 60 One survey noted that the Committee’s General Comments have been cited by judicial bodies around the world including the Constitutional Court of Peru, the Supreme Court of British Columbia, and the High Court of India. M Kanetake, ‘Domestic Courts’ Engagement with UN Human Rights Treaty Monitoring Bodies:  A Thematic Report for the ILA Study Group on Principles on the Engagement of Domestic Courts with International Law’, Amsterdam Center for International Law, 2014, available at: http://​ssrn.com/​abstract=2393332, p 6. 61 For example, Klein and Kretzmer have suggested that general comments are a form of ‘attribution (even usurpation) of a standard-​setting, law-​creating function for the Committee that is not restricted to interpreting the existing rules but includes the capacity to develop them in a certain direction . . .’. E Klein and D Kretzmer, ‘The UN Human Rights Committee: The General Comments –​The Evolution of an Autonomous Monitoring Instrument’ in German Yearbook of International Law vol 58 (2015) 189, at 201. Another analysis that also reflects on the legal weight to be given to general comments is D McGrogan, ‘On the Interpretation of Human Rights Treaties and Subsequent Practice’ (2014) 32 Netherlands Quarterly of Human Rights 347, at 365–​7. 62 A notable exception is the insightful critique by K Mechlem, ‘Treaty Bodies and the Interpretation of Human Rights’ (2009) 42 Vanderbilt Journal of Transnational Law 905. 63 Decision No T-​025 of 2004, para 8.3.2. 64 T Kleinlein, ‘Social Rights Protection through Core International Human Rights Treaties Beyond the ICESCR’ in C Binder et al (eds), Research Handbook on International Law and Social Rights (forthcoming, 2020). 65 E/​2019/​22, para  85.

456  Philip Alston significant change over the years relates to the process by which General Comments are drafted. In the first phase, they were generally put forward by an individual on his or her own initiative, with the Rapporteur or Chairperson playing a key role. Some drafts were then adopted with relatively little debate and in a rather short space of time. Today, the Committee considers different topics put forward by members and, once a subject is approved, the lead is taken by an assigned rapporteur or increasingly, a group of co-​rapporteurs. The day of general discussion then begins a process of inviting public submissions, and this is then supplemented by the Committee making a first draft available online for comment from all interested stakeholders, including governments.66

(d) Communications When the ICESCR was drafted, no communications procedure was included, even in optional form, as was done for the ICCPR. Many commentators argued, both in the 1960s and in the decades that followed, that the relevant rights were somehow ill-​suited to such a mechanism. Eventually, the proposal for an Optional Protocol to the Covenant which would permit complaints to be examined by the Committee became something of a litmus test for whether or not the rights recognized could be considered to be as ‘important’ as traditional civil and political rights. It was not coincidental that, as it became apparent that there was significant political support for such an initiative, two lawyers from the US Department of State, whose government had long sought to play down or entirely reject the significance of ESCR, published a detailed account of all of the reasons why making these rights justiciable would be deeply mistaken.67 As early as 1990, the Committee discussed the possibility of such a procedure.68 The following year, it requested its rapporteur to prepare an analysis outlining the arguments for and against an Optional Protocol.69 During 1991 and 1992, several such documents were presented by the Committee Chairperson (the present author)70 and the Committee then authorized him to present a detailed submission to the World Conference on Human Rights in Vienna in 1993. That document outlined the case for a protocol and finished by observing that ‘a petition system should [not] be the only or

66 See, for example, E/​2019/​22, para 50. 67 M Dennis and D Stewart, ‘Justiciability of Economic, Social, and Cultural Rights:  Should There be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?’ (2004) 98 American Journal of International Law 462. 68 For a detailed account of the early history see P Alston, ‘Establishing a Right to Petition Under the Covenant on Economic, Social and Cultural Rights’ in Collected Courses of the Academy of European Law, vVol IV, Book 2 (1995) 107. 69 E/​1991/​23, para  285. 70 E/​C.12/​1991/​WP.2; and E/​1992/​23, para  362.

The Committee on Economic, Social and Cultural Rights  457 even the main component in an overall implementation system’. In support I noted that Hersch Lauterpacht had taken the same approach in 1950:71 He acknowledged that the ‘enforcement’ of economic and social rights should not be made ‘primarily judicial in character’, although he did not rule out the appropriateness of such an approach in particular instances. He also observed that ‘[u]‌nless an effective right of petition . . . is granted to individuals concerned or to bodies acting on their behalf, any international remedy that may be provided will be deficient in its vital aspect.’72

The World Conference subsequently encouraged the Committee to continue working on the project,73 and this in turn led to the preparation of two full drafts of a possible protocol being considered.74 In 1996, a final draft was officially sent to the Commission on Human Rights for its consideration.75 The Commission invited states to comment on the proposal but then dragged its feet before appointing an independent expert to examine the question of a draft protocol in light of the Committee’s proposal.76 Eventually, the Commission set up a Working Group which moved over time to prepare a new draft. Under the inspired chairmanship of Catarina de Albuquerque, from Portugal, and after four years of intensive debate, the Human Rights Council adopted a draft protocol, which was subsequently endorsed by the General Assembly on 10 December 2008.77 The Protocol entered into force on 5 May 2013, and as of May 2019 has twenty-​four States parties.78 The Protocol limits the right to complain to individuals (Article 2). Communications may deal with alleged violations of any of the rights set forth in Parts II and III of the Covenant, thus excluding the right of self-​determination in Part I. It provides for admissibility criteria, including the exhaustion of domestic remedies. The solution found for reviewing complaints alleging a violation of the obligation to progressively realize one of the rights was to instruct the Committee ‘to consider the reasonableness of the steps taken by the State Party’ bearing in mind that the latter ‘may adopt a range of possible policy measures for the implementation of the rights set in the Covenant.’79 The Protocol also provides for third parties to submit information and documentation relating to a particular case, in certain circumstances. These arrangements were spelled out in a note on ‘Guidance on third-​party interventions’, adopted by the Committee in 2016. 71 H Lauterpacht, International Law and Human Rights (Praeger, 1950) 286. 72 ‘Contribution submitted by the Committee on Economic, Social and Cultural Rights’, A/​CONF.157/​PC/​62/​ Add.5 (26 March 1993), para 94. 73 Vienna Declaration and Programme of Action, pt II, para 75, A/​CONF.157/​23 (1993). 74 ‘Draft optional protocol providing for the consideration of communications, Report submitted by Mr. Philip Alston’, E/​C.12/​1994/​12 (9 November 1994); ‘Draft optional protocol providing for the consideration of communications, Revised report submitted by Mr. Philip Alston’, E/​C.12/​1996/​CRP.2/​Add.1 (21 November 1996). 75 E/​CN.4/​1997/​105 (1996),  Annex. 76 CHR Res 2001/​30, para 8(c). Hatem Kotrane, from Tunisia, was appointed. 77 GA Res 63/​117 (2008). 78 B Perryman, ‘Rights-​Protecting iCourts: The Curious Case of the OP-​ICESCR’ in M Wind (ed), International Courts and Domestic Politics (Cambridge University Press, 2018) 117. 79 Ibid, Article 8(4).

458  Philip Alston The Committee adopted its first set of Views in 2016, in a case involving Spain.80 In 2017 it agreed to a set of ‘working methods’ for following up on its Views under the Optional Protocol.81 The Committee plans to follow up on those of its recommendations that relate to the individual petitioner until such time as it decides to close the procedure, even if this takes some years to achieve. By contrast, recommendations related to structural deficiencies and the avoidance of repetition of the violation addressed to the state will be dealt with in the context of the state-​reporting processes. The Committee’s procedures also indicate that it ‘may consider allowing the participation of NHRIs and entities from civil society in the follow-​up procedure by way of providing the Committee with information concerning the implementation of general recommendations’, but only once the State has provided its observations. In principle, once the Views have been issued and the follow-​up begins, the relevant documentation will be made public, with the author’s consent. It remains to be seen what impact the new follow-​up procedure may have, but civil society will inevitably have a crucial role to play to ensure the responsiveness of governments.82 The Committee has already begun to invoke the jurisprudence reflected in its Views in the recommendations it makes to states in its Concluding Observations.83 While the Committee’s annual report for 2018 indicates that it had registered 63 communications,84 a briefing for States parties in 2019 revealed that it had actually received 162 communications during 2018, and that many of those had involved requests for interim measures. Members of the Committee reported that despite good support from the Secretariat and its own effective use of all available time, it would take the Committee around twenty years to clear the current backlog unless there was a change in the number of cases settled each year.85 In fact, although the Committee has received communications from a range of states, the reality is that a large number of housing-​related complaints from Spain have significantly distorted its overall caseload.86 This is illustrated by the fact that in early 2019 the Committee’s website listed just over 100 pending cases, one of which related to Belgium, one to Luxembourg, and all the rest to Spain. This overload was prompted by a confluence of two separate decisions. First, the Spanish Supreme Court held that decisions of UN treaty bodies are binding on the state.87 Second, in one of its earliest 80 Merino Sierra et al. v Spain, Views adopted by the Committee under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights concerning communication No 4/​2014, E/​C.12/​59/​D/​4/​2014 (24 November 2016). 81 CESCR, ‘Working Methods Concerning the Committee’s Follow-​up to Views under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ (2017). 82 P Mutzenberg, ‘Essential Actors for Embedding the Covenants in the National Context’ in D Moeckli, H Keller, and C Heri (eds), The Human Rights Covenants at 50: Their Past, Present, and Future (2018, Oxford University Press) 87. 83 See, for example, ‘Concluding observations on the fifth periodic report of Mauritius’, E/​C.12/​MUS/​CO/​5 (5 April 2019), para 6, citing I.D.G. v Spain (E/​C.12/​55/​D/​2/​2014) in relation to justiciability. 84 E/​2019/​22, para  76. 85 E/​C.12/​2019/​SR.29 (15 March 2019), para 2. 86 https://​www.ohchr.org/​EN/​HRBodies/​CESCR/​Pages/​PendingCases.aspx. 87 María de los Ángeles González Carreño v Ministry of Justice, Judgment No 1263/​2018; and see J C Benito Sánchez, ‘The UN Committee on Economic, Social and Cultural Rights’ Decision in I.D.G. v. Spain: The Right to Housing and Mortgage Foreclosures’ [2016] European Journal of Human Rights 320.

The Committee on Economic, Social and Cultural Rights  459 Views the Committee found that ‘the authors’ eviction, without a guarantee of alternative housing by the authorities of the State party as a whole, including the regional authorities of Madrid, constituted a violation of their right to adequate housing.’88 It recommended an ‘effective remedy,’ as well as broader systemic changes.89 This conjunction has led potential Spanish evictees to lodge a communication and request interim measures, thus significantly delaying the process even if the case is ultimately not successful. In principle this could be seen as providing a valuable remedy, but because the Committee has such limited capacity to deal with issues of admissibility as well as substantive determinations and requests for interim measures in the course of its two annual sessions, a huge backlog has resulted. The optimal solution might be the authorization of an additional week of meetings for a Communications Working Group, along the lines of the Human Rights Committee’s methods of work. Spain did meet with the Committee at two of its sessions to try to resolve the problem.

(e)  Interstate communications and the inquiry procedure In addition to introducing the communications procedure, which is already having a significant impact upon the work of the Committee, the Optional Protocol also introduced both an inter-​state procedure under which one State party can complain about the non-​fulfilment of obligations under the Covenant by another State party, and an inquiry procedure which can be triggered by the receipt of ‘reliable information indicating grave or systematic violations by a State Party’ of the rights recognized in the Covenant. To date neither of these procedures has been activated.90

(f) Statements In its early years, the Committee used its General Comments to express its views on particular issues, including particularly the normative content of rights and the obligations of states. But in 1991 and 1992 it adopted ‘Statements’ that were intended to put its views before the World Conference on Human Rights. This was followed by other Statements submitted to various world conferences between 1994 and 1996. In 1998, the Committee branched out and adopted a Statement on globalization which emerged from a day of General Discussion.91 Subsequently the Committee began to

88 Djazia et  al v Spain, Views adopted by the Committee under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights with regard to communication No 5/​2015, E/​C.12/​61/​D/​5/​ 2015, para 18, Date of communication: 20 February 2015; Date of adoption of Views: 20 June 2017, http://​juris. ohchr.org/​Search/​Details/​2407. 89 Ibid, para 21. 90 Provisional rules of procedure under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, E/​C.12/​49/​3 (15 January 2013), Rules 36–​46 governing inter-​state communications, and Rules 21–​35 governing inquiries. 91 E/​C.12/​1998/​26. For an account of the discussion, see para 436, and for the text of the statement, see para 515.

460  Philip Alston adopt Statements focused on specific issues such as poverty, intellectual property, the right to development, the rights of non-​nationals, and most recently on topics as diverse as the Sustainable Development Goals (SDGs), climate change and human rights defenders. As of March 2019, a total of twenty-​seven Statements had been issued.92 The Statements average 1–​3 pages in length and the process for their consideration and adoption appears to be rather ad hoc. In the absence of a fixed procedure, the Committee enjoys a degree of flexibility which contrasts with the now formal and time-​ consuming procedures that apply to the drafting of General Comments. In practice, they are initiated by individual members who want a particular issue to be addressed. Its 2019 Statement on the 2030 Agenda and SDGs93 responds in part to a call by the High Level Political Forum for treaty body inputs, and builds on the Committee’s consistent practice in recent years of including a reference to the SDGs in its Concluding Observations on states’ reports.94 The Committee has also discussed making a Statement jointly with the Human Rights Committee on trade union rights,95 but it is unclear whether agreement will be reached. A group of members has reportedly objected to such joint action. This follows similar objections to a 2018 Statement on the situation of human rights defenders to mark the twentieth anniversary of the Declaration on the Right and Responsibility of Individuals. The Committee unprecedentedly decided to endorse the statement by majority vote rather than consensus. The vote was ten in favour, two against, two abstentions, and four absent. The Committee’s report observed that proceeding by a majority vote will be ‘a last resort only,’ but whether this signals a fundamental procedural shift remains to be seen.96

(g)  Norm clarification The various rights recognized in the Covenant are spelled out with varying degrees of specificity, partly as a result of different approaches advocated by the relevant UN Specialized Agencies during the drafting process.97 But even those formulations that go into some detail leave much to be determined through practice and interpretation. This relative open-​endedness was often used in the early years to claim that the rights were 92 https://​tbinternet.ohchr.org/​_​layouts/​15/​treatybodyexternal/​TBSearch.aspx?Lang=en&TreatyID=9&DocTy peID=68. 93 E/​C.12/​2019/​1 (5 April  2019). 94 The standard SDG comment provides: ‘The Committee recommends that the State party take fully into account its obligations under the Covenant and ensure the full enjoyment of the rights enshrined therein in the implementation of the 2030 Agenda for Sustainable Development at the national level. Achievement of the Sustainable Development Goals would be significantly facilitated by the State party establishing independent mechanisms to monitor progress and treating beneficiaries of public programmes as rights holders who can claim entitlements. Implementing the Goals on the basis of the principles of participation, accountability and non-​discrimination would ensure that no one is left behind.’ 95 E/​2019/​22, para  86. 96 Ibid, paras 67–​8. 97 Philip Alston, ‘The United Nations’ Specialized Agencies and Implementation of the International Covenant on Economic, Social and Cultural Rights’ (1979) 18 Columbia Journal of Transnational Law 79.

The Committee on Economic, Social and Cultural Rights  461 so inherently vague that they could not readily be applied in practice. This criticism overlooks the fact that many civil and political rights formulations are equally vague, but the Committee has nonetheless been especially conscious of the importance of its role in developing a more detailed and sophisticated understanding of the normative content of the Covenant’s rights. In its early years, it did this almost exclusively through the adoption of General Comments, since there were no communications to be considered, there was much less interaction with other bodies engaged in similar pursuits, and the normative content of most of the Concluding Observations was negligible. Today, the Committee makes use of a wide range of different techniques. Its twenty-​five General Comments have provided hundreds of pages of guidance to governments, courts, civil society, and other potential users. These have been supplemented by the twenty-​seven Statements it has issued, and most recently it has begun to generate important jurisprudential content in the context of its Views on communications.98 While other treaty bodies have also been very active in this regard, the ESCR Committee has in some ways faced a more daunting task than the others given the very low level of specificity at the outset of its work. It would seem in retrospect to be one of the areas in which its contributions have been the most impressive and of broad significance for the human rights field as a whole.

12.4  The Committee’s principal partners (a)  Civil society One of the most important features of the way in which the international human rights regime evolved in the late twentieth century was the extent to which NGOs came to be accepted not merely as lobbyists or pressure groups but as partners in many aspects of the overall enterprise. Curiously, the treaty bodies were initially slow to facilitate the involvement of civil society in their work, partly because of strong opposition from the socialist and some developing countries, and perhaps partly because of a sense on the part of some members that their work was more legal than political and they should thus remain above the fray in some artificial way. In 1988, the Committee took the lead among the treaty bodies by permitting the formal submission of written statements by NGOs. Until that time, most information was passed in private to individual members. The Committee also pioneered procedures to invite NGO representatives to participate as experts in the day of general discussion, to provide information to the Committee formally and to make the relevant information publicly available, and to ask state representatives in the context of the constructive dialogue to respond specifically to information emanating from NGO sources. A major breakthrough for the system as a whole came in 1993 when the Committee negotiated with the Canadian representatives to 98 In its 2019 report, the Committee notes its contributions under the Protocol in relation to various jurisprudential issues. E/​2019/​22, para 79.

462  Philip Alston permit a group of Canadian NGOs to provide a formal briefing to the whole Committee in a public session. While the Canadian Government was somewhat taken aback at how well organized the NGOs were, the innovation changed fundamentally the way in which the Committee interacted with civil society. The new procedure was immediately formalized in a statement by the Committee and the precedent was soon followed by the rest of the treaty bodies.99 NGOs have also played an important role in supporting the work of the Committee vis-​à-​vis the political organs of the UN, such as the Human Rights Council, and also in helping to develop the procedural framework. An important instance in that regard is the role played by civil society in the drafting of the Optional Protocol, and in advocating for its adoption.100 Today, there are few aspects of the Committee’s work that are not directly influenced by information from civil society sources. In its early years, the Committee actually had difficulty attracting the attention of any of the major international human rights NGOs, and it has never been especially successful at reaching out systematically in ways that attract participation from civil society groups outside the field of human rights. The ways in which NGOs could engage in the different aspects of the Committee’s work were brought together for the first time in 2000 in its ‘Guidelines for NGOs’.101 These arrangements have been regularly updated as the Committee has developed new procedures, such as those for following up on Concluding Observations or dealing with communications, and ensured that possibilities for civil society inputs were included. In the state reporting process, NGO input is invited at all stages. Once the consideration of a state report has been scheduled, NGOs can provide written information as the Committee draws up the List of Issues and they can brief the Committee orally through the scheduled formal and private meetings held in the pre-​session meetings. Observers have noted, however, that this can be difficult when the Committee provides too little notice of which countries are to be considered, sets unduly tight deadlines for submissions, or gives inadequate notice of the scheduling of briefing times for NGOs.102 Give the limited resources that most NGOs have to pay for travel to Geneva, many choose not to attend the pre-​session meetings but rather to wait for the actual review of the state party report by the Committee.103 Once the state review is underway, NGOs can submit ‘parallel’ or shadow’ reports, ideally in advance of the relevant session, and participate in briefings during the Committee session.104 The formal briefings, usually held on the first Monday of each 99 ‘NGO Participation in Activities of the Committee on Economic, Social and Cultural Rights’, UN Doc E/​ C.12/​1993/​WP.14 (12 May 1993). 100 G Türkelli, W Vandenhole, and A Vandenbogaerde, ‘NGO Impact on Law-​making: The Case of a Complaints Procedure under the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child’ (2013) 5 Journal of Human Rights Practice 1. 101 E/​2001/​22, Annex V, p 149. 102 This is one example where support from dedicated NGOs can be invaluable: ‘To guarantee that such information is widely disseminated, the Centre for Civil and Political Rights issues regular newsletters and alerts as soon as the information is made available.’ Mutzenberg, above n 82, at 80–​2. 103 Ibid, at 81. 104 E/​C.12/​2000/​21, Annex V, para 21

The Committee on Economic, Social and Cultural Rights  463 session, enable NGO representatives to deliver public statements, while the informal briefings, which are held in private, allow Committee members to ‘raise questions and seek clarification on issues mentioned in NGO reports.’105 An indication of the quantity of inputs received by the Committee is provided by a report prepared by the Global Initiative for Economic, Social and Cultural Rights which indicates that in 2018, 150 NGO parallel reports were submitted. The numbers varied greatly with twenty-​eight reports on Argentina and twenty-​seven on Mexico, contrasting with two each for Cabo Verde, Turkmenistan, and the Central African Republic.106 The Committee also received eleven parallel reports from National Human Rights Institutions. The Committee’s new follow-​up procedure also invites input from National Human Rights Institutions, NGOs, and other organizations. In relation to General Comments, the Committee’s guidelines permit NGOs to submit information in writing ‘during the stages of the drafting and discussion’. In practice, however, ‘NGOs can only intervene before the Committee initiates its drafting process, at the occasion of the regular “(half-​) days of general discussion”.’107 This can take the form of written information submitted prior to the meeting or the making of oral statements. In relation to the communications procedure, NGOs are allowed to submit third-​party interventions regarding cases currently pending before the CESCR if they have the consent of the complainant.108 To participate in the Committee’s sessions, organizations must be accredited, but they are not required to have been granted ECOSOC consultative status. Accreditation involves applying through the UN Office in Geneva’s conference management platform, Indico, and registering for the relevant session at least ten days in advance. But no assistance, financial, organizational, or visa-​related, is provided to civil society for attending sessions.109 The Committee’s annual report for 2018 also lists many NGOs with which it held informal meetings, ranging from the Center for Economic and Social Rights and Dejusticia to various university and foundation groups, and the International Bar Association’s Human Rights Institute.110

(b)  UN human rights bodies The Committee’s relationship with the UN’s political organs has evolved quite differently from what might reasonably have been expected. Unlike the Human Rights Committee, which is established by the relevant Covenant and is thus responsible only to the States parties, the ESCR Committee is a creature of the ECOSOC. It was 105 Mutzenberg, above n 82, at 81. 106 2018 Yearbook, above n 9, p 7 107 Mutzenberg, above n 82, at 84–​5. 108 Justified on the basis that third-​party interventions are permissible under OP-​ICESCR Article 8(3). 109 https://​www.ohchr.org/​EN/​HRBodies/​CRC/​Pages/​Accreditation.aspx. 110 Committee on Economic, Social and Cultural Rights (2019) Report on the sixty-​third and sixty-​fourth sessions (12–​29 March 2018, 24 September–​12 October 2018), E/​2019/​22 E/​C.12/​2018/​3, [52]–​[58].

464  Philip Alston thus very aware in the early years that its terms of reference, its composition, and its working arrangements could be altered at any stage by the Council. In practice, however, the Council has permitted the Committee to act like any other treaty body, with the same degree of autonomy. As a result, the Committee adopted all of its working methods without reference to the Council. The only exception relates to its Rules of Procedure, for which it sought and received the Council’s endorsement in 1989.111 Since that time, subsequent revisions have used the terminology of ‘provisional Rules of Procedure,’ thus not requiring Council approval.112 Similarly, when it adopted a detailed set of procedures governing its consideration of (i) individual communications, (ii) inquiries, and (iii) inter-​state communications, under the Optional Protocol, it also adopted the technique of keeping them provisional and thus not requiring formal approval by any other body.113 In terms of its relationship with the Commission on Human Rights and its successor, the Human Rights Council, the Committee has had very limited interaction in recent years. It has, however, maintained an impressive connection with the Special Procedures mandate-​ holders, and especially those working on issues of particular relevance to ESCR. It has held meetings with many of them to exchange ideas and has paid careful attention in its work to the issues raised by the various rapporteurs. In 2017, for example, the Committee’s report notes that it met with the Special Rapporteur on the rights of persons with disabilities and engaged in a ‘rich discussion’ on a range of issues including the concept of ‘reasonable accommodation’. It also met with the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, and with the Working Group on the issue of human rights and transnational corporations and other business enterprises.114 In terms of the Council’s Universal Periodic Review (UPR) process, commentators have expressed scepticism about the thoroughness with which either the UPR or the treaty bodies rely on each other’s work.115 Most NGO submissions to UPR do not refer to treaty bodies’ findings or evaluate states’ implementation of Concluding Observations, suggesting that cross-​pollination between the two mechanisms is not as strong as it could or should be.116 In addition, while engagement by NGOs with treaty bodies is very good on certain topics, on the whole, they tend to engage more with the UPR.117 Reasons cited for this difference include the standard practice of 111 Report on the Third Session, E/​1989/​22, paras  333–​4. 112 As of 2019, the Committee still uses the Rules that were last amended in 1993. See E/​C.12/​1990/​4/​Rev.1 (1 September 1993). 113 Provisional rules of procedure under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, adopted by the Committee at its forty-​ninth session (12–​30 November 2012), Procedures for the consideration of individual communications received under the Optional Protocol, UN Doc E/​ C.12/​49/​3 (2013). 114 E/​2018/​22, paras  95–​7. 115 See eg, ‘The difficulties facing NGOs in streamlining their engagement before the UNTB echoes the struggle of the UNTB themselves to work in a more coherent and systematic manner and to create links amongst themselves and vis-​à-​vis the UPR.’ Mutzenberg, above n 82, at 92–​3. 116 Ibid. 117 Heather Collister, ‘Rituals and Implementation in the Universal Periodic Review and the Human Rights Treaty Bodies’ in H Charlesworth and E Larking (eds), Human Rights and the Universal Periodic Review: Rituals

The Committee on Economic, Social and Cultural Rights  465 governments to hold national consultations with civil society during the drafting of their national UPR reports;118 the fact that such consultations can facilitate the formation of coalitions; and ‘the degree of predictability of timing of state reviews in the two mechanisms’.119 No doubt things are even worse for the Committee given the lack of adequate support, as compared to the Human Rights Committee which at least has the CCPR-​Centre working to ensure compatibility between the two processes.120 Yet addressing these shortcomings could prove to be key to ensuring far greater implementation of treaty body recommendations.121 Interactions by the Committee with other treaty bodies have become more substantive and engaged as a result of the treaty body strengthening process that began in 2014 and will introduce potentially far-​reaching additional measures in 2020. The review process is forcing committees to think of new ways to collaborate, as states demand more coherent and better coordinated procedures and the minimization of duplication of issues, and complain about inconsistent interpretations of rights. In 2018, for example, the Committee met with the Human Rights Committee to ‘explore ways of improving collaboration, taking into account the current reporting burden for States parties and duplication of work among the Committees’. It also established a joint working group to ‘continue the discussions’.122 In the same year it also met with the European Committee of Social Rights to develop mutual understanding and cooperation. In response to the review process, some members recognize the additional legitimacy and strength it could give their work, while others resist forms of collaboration

and Ritualism (Cambridge University Press, 2014) 119–​22. ‘The UPR has been far more successful than the treaty bodies in terms of mobilising civil society at the national level.’ 118 Encouraged by Human Rights Council, Resolution 5/​1, Annex, para 15(a). Cf ‘Mention of consultations with stakeholders is absent from the articles in the international conventions that set out state obligations with respect to reporting to the committees. Nevertheless it is not uncommon for such consultations to be held. For example, Ireland invited written submissions as it prepared its periodic report to the Committee on Economic, Social and Cultural Rights in December 2011. But as a tool for mobilising civil society these do not appear to have been as successful as those carried out in the context of the UPR.’ Ibid. 119 The author terms this the ‘crucial difference between the treaty bodies and the UPR in respect of civil society mobilization’: ‘Unlike the UPR, the treaty bodies schedule their reviews only once a state report has been submitted. The OHCHR found that in 2010 and 2011, only 16 per cent of the reports due from states had been submitted strictly on time, while, even with a grace period of one year, only one-​third of all reports were submitted. The result is that reviews do not take place according to a predictable schedule. The backlog in treaty bodies’ reviews of submitted reports only compounds the problem, with 281 State party reports pending consideration in March 2012. In many cases, NGOs will be unaware that their state is preparing its national report, given the general lack of adherence to deadlines, and where the state does not consult NGOs in drawing up that report . . . The delays, uncertainties and the unbalanced way in which the process unfolds limit the usefulness of the process as a tool around which a longterm advocacy strategy can be developed.’ Colister, above n 117, at 119–​22. 120 ‘The CCPR-​Centre also aims at ensuring that the work of the Human Rights Committee is fully taken into account in the framework of the Universal Periodic Review (UPR) established by the Human Rights Council.’ Available at: http://​ccprcentre.org/​about-​ccpr. 121 Colister, above n 117, at 110:  ‘In addressing the question of whether the UPR may lead to treaty body recommendations being ignored or evaded, I argue that when it comes to implementation what matters is not only the will of the state in question but—​sometimes even more crucially—​the presence of a mobilized civil society able to hold the state accountable for its actions.’ ‘[T]‌he readiness of NGOs to incorporate engagement with the UPR deep into their domestic advocacy strategies over the course of several years. It is precisely a sustained engagement of this kind that is required if international human rights standards are ultimately to be implemented.’ 122 Committee on Economic, Social and Cultural Rights (2019) Report on the sixty-​third and sixty-​fourth sessions (12–​29 March 2018, 24 September–​12 October 2018) E/​2019/​22 E/​C.12/​2018/​3,  [52].

466  Philip Alston or attempts to promote a de facto merger which they see as threatening their independence and the autonomy of the Covenant.

12.5 An assessment (a)  The literature on the Committee Impact analysis remains the Achilles Heel of those seeking to defend the value of the international human rights regime as a whole, and the impact achieved by most of the treaty bodies has also been the subject of very little sustained and sophisticated analysis. More specifically, the impact of the Covenant on ESCR and of the work of the Committee on ESCR have been examined in depth in only a handful of studies.123 And those studies that have been undertaken have generally not reached especially optimistic conclusions. Before exploring how best to evaluate the work of the Committee, it is useful to review the findings of some of the most recent contributions to the literature on impact. A study by Krommendijk examined the effectiveness of the state reporting process under six UN human rights treaties, including the Covenant on ESCR, in three developed western states: the Netherlands, New Zealand and Finland. The author concluded that, in general, none of the relevant governments tended to adopt measures in response to the Concluding Observations adopted by the various treaty bodies. There were, however, a number of exceptions in each country involving recommendations that had contributed to changes in policy or legislation. In those instances, one of the key variables had been the extent to which civil society actors had mobilized to put pressure on the governments concerned. The study concluded that Concluding Observations ‘can give extra strength or legitimacy to the arguments and demands of domestic actors when they are advocating for policy or legislative change’.124 Another important set of studies looks at the impact of the Covenant in three different regional settings: Europe, Africa, and Latin America. In the first of these, Müller 123 There are, of course, a great many studies that have been critical of the jurisprudence of the Committee on specific issues, such as the content of the right to health, or the right to water, or in relation to the Sustainable Development Goals, but most such studies do not purport to evaluate the Committee’s overall approach or its ­impact. Among the essential published works that focus significantly on the Covenant and its rights see: M Craven, The International Covenant on Economic, Social, and Cultural Rights: A Perspective on its Development (Oxford University Press, 1995); S Fredman, Human Rights Transformed:  Positive Rights and Positive Duties (Oxford University Press, 2008); M Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge University Press, 2008); K Young, Constituting Economic and Social Rights (Oxford University Press, 2012); B Saul, D Kinley, and J Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (Oxford University Press, 2014); C Rodríguez-​Garavito and D Rodríguez-​Franco, Radical Deprivation on Trial: The Impact of Judicial Activism on Socioeconomic Rights in the Global South (Cambridge University Press, 2015); M Langford, C Rodríguez-​Garavito, and J Rossi (eds), Social Rights Judgments and the Politics of Compliance: Making it Stick (Cambridge University Press, 2017); and K Young (ed), The Future of Economic and Social Rights (Cambridge University Press, 2019). 124 J Krommendijk, ‘The Domestic Effectiveness of International Human Rights Monitoring in Established Democracies. The Case of the UN Human Rights Treaty Bodies’, (2015) 10 The Review of International Organizations 489, 508.

The Committee on Economic, Social and Cultural Rights  467 looks at the situation in Germany, Spain, Russia, and the United Kingdom, each of which were assessed to have submitted high quality reports to the Committee.125 The author found that the first three states had all recognized ‘the minimum core approach as an important concept guiding the progressive realization of ESCR’,126 and that all four states had accorded the Covenant a place in their domestic legal orders (albeit very different from one state to the next).127 Similarly, she found at least some engagement with the Covenant by the courts in each of the countries,128 as well as some influence of the Covenant and the work of the Committee on legislation and policy. This occurred to varying degrees and via different routes, such as through parliamentary joint committees on human rights, national human rights commissioners, Presidential or executive consultative bodies, or parliamentary action by opposition parties. She also found increased engagement with the Covenant on the part of civil society and national human rights institutions in Britain and Spain.129 But Müller also emphasizes the negative side of the balance sheet. Some of her findings are specific to the Covenant. For example, the Committee’s concluding observations have minimal impact and the process of preparing state reports does not prompt significant reflection upon the compatibility of domestic laws and policies with the Covenant. But other findings are more a reflection of the broader attitude to social rights in much of Western Europe in which there is limited constitutional or legislative recognition of ESCR, in direct contrast to the approach taken to CPR.130 Unsurprisingly, Spain is the only one of the four countries to have ratified the Optional Protocol.131 Her conclusion is that the Covenant has generally had a very limited influence, as shown by the ‘absence of human rights language in European (and global) responses to the financial and economic crises’.132 A study of the situation in Africa also generated conclusions that are hardly more encouraging. Ssenyonjo examined the Covenant’s impact on the text of regional and domestic charters and constitutions and on judicial interpretations in the African continent.133 He notes that the African Commission on Human and Peoples’ Rights is empowered by its Charter to ‘draw inspiration from international law on human and peoples’ rights’ when interpreting it,134 and highlights instances in which both the Commission and the African Court on Human and People’s Rights have relied on the ESCR Committee’s jurisprudence to develop the scope and content of those rights in the African context.135 But he also draws attention to the extent to which African 125 A Müller, ‘Influence of the ICESCR in Europe’ in D Moeckli, H Keller, and C Heri (eds), The Human Rights Covenants at 50: Their Past, Present, and Future (Oxford University Press, 2018) at 218. 126 Ibid, at 219. 127 Ibid. 128 Ibid. 129 Müller, above n 125, at 224. 130 Ibid, 226. 131 Ibid. 132 Ibid, 239–​40. 133 M Ssenyonjo, Influence of the ICESCR in Africa, in D Moeckli, H Keller, and C Heri (eds), The Human Rights Covenants at 50: Their Past, Present, and Future (Oxford University Press, 2018) at 101. 134 African Charter on Human and Peoples’ Rights, Article 60. 135 Ssenyonjo, above n 133, at 102.

468  Philip Alston states have been reluctant to consider ESCRs to be justiciable, as confirmed by the Committee’s findings in its Concluding Observations,136 notwithstanding some significant examples to the contrary from countries like South African and Kenya. He concludes by highlighting that implementation of the Covenant in Africa is hindered by ‘non-​compliance with domestic court rulings in favour of ESCR, political authoritarianism, high levels of corruption, poverty, armed conflicts, limited engagement of NGOs and civil society, and a lack of respect for the rule of law including a lack of respect for international judicial bodies’.137 A third regionally focused study looks at the situation in Latin America.138 Pinto and Sigal find ‘there is a constitutional framework shared by nearly all Latin American States according to which ESCR have found their place in constitutional provisions’. They also note that the delayed entry into force of the regional instrument dealing with ESCR, the Pact of San Salvador, ‘allowed the Covenant to exert a decisive impact in the countries of the region’. The Covenant remains relevant ‘as a source of rights and as the instrument providing the pro persona interpretation of the scope of certain rights’.139 They also conclude that the Committee’s jurisprudence has ‘a strong presence in the decisions of most national courts in cases related to ESCR, partly as a result of the development of collective procedures in Latin American jurisdictions for filing claims for the protection of ESCRs as collective rights.140 A final study of major significance in this context is Warwick’s critique of the Committee’s performance in responding to the global financial crisis of 2007. He argues that rather than coming to grips with the basic substance of the neoliberal policies that lay at the heart of much of the austerity agenda, it contented itself with responses that were largely procedural.141 He coins the phrase a ‘hierarchy of comfort’ to capture its preference for focusing first on non-​discrimination, then on a handful of ‘immediate obligations’, and only later coming to grips with the challenge posed by the obligation of ‘progressive realization’. He suggests that because each of these entry points is essentially compatible with neoliberal values, the Committee did not really come to grips with the core of the policies that were causing the problems. Accordingly, it was less willing to rely on the principle that there should be ‘non-​retrogression’ in terms of key standards or that the ‘minimum core’ of the relevant rights should be protected regardless of fiscal challenges being addressed by the government concerned. He concludes with an important general call for scholars and friends of the Committee to be more forceful in analysing and critiquing the Committee’s outputs and activities.142

136 Ibid, at 108–​11. 137 Ibid, at 121. 138 M Pinto and M Sigal, ‘Influence of the ICESCR in Latin America’ in D Moeckli, H Keller, and C Heri (eds), The Human Rights Covenants at 50: Their Past, Present, and Future (Oxford University Press, 2018) at 179. 139 Ibid, at 152. 140 Ibid, at 162. 141 B Warwick, ‘A Hierarchy of Comfort? The CESCR’s Approach to the 2008 Economic Crisis’ in G MacNaughton and D Frey (eds), Economic and Social Rights in a Neoliberal World (Cambridge University Press, 2018) 127. 142 Ibid, at 146.

The Committee on Economic, Social and Cultural Rights  469 Apart from Warwick, none of the other impact studies seeks to evaluate the overall work of the Committee, but they certainly provide a reminder that the task is difficult and that it cannot be assumed that the Covenant or the Committee have made major inroads into how ESCR are perceived or how they are implemented in practice. The challenge for this chapter is to attempt some sort of assessment of what the Committee has achieved in the course of its more than three decades in existence. As emphasized in the introductory chapter to this volume, the task of evaluation is a complicated one and much depends on the criteria that are used. For current purposes, three preliminary caveats should be noted. The first is that the evaluation should focus on the achievements of the Committee rather than on the extent to which ESCR have been implemented by States parties or by other actors. In other words, the Committee should be judged primarily by reference to the matters which lie within its power, rather than on the much broader array of policies and practices that it certainly hopes to influence but which depend much more on actors beyond its control or perhaps even its influence.143 The second caveat is that the role of international actors in general, of which the Committee is one, needs to be kept in perspective. Ultimately, as in all international endeavours on behalf of human rights, those efforts will succeed or fail primarily in response to domestic achievements or shortcomings. In other words, a body such as the Committee can make some contribution and might be a useful catalyst, but what ultimately matters is what is done, perhaps in conjunction with those measures, at the national level, by governments, civil society, corporations and other actors. Thirdly, it should be borne in mind that many of the problems faced by the Committee are also a major challenge for other treaty bodies. It is salutary, for example, to note that an NGO that works actively to promote an understanding of the work of the Human Rights Committee emphasizes how limited is the knowledge of most stakeholders at the national level when it comes to an understanding of how the Committee functions and of the significance of its Concluding Observations.144

(b)  Evaluating impact This chapter concludes by evaluating the success or otherwise of the Committee’s efforts in terms of:  (i) the coherence of the Committee’s approach to monitoring: (ii) its response to particularly challenging issues; (iii) its capacity to address new issues; (iv) its procedural innovation; and (v) its success in disseminating the results of its work.

143 Pinto and Sigal, above n 138, p 152, also emphasize that the ESCR Covenant cannot be treated as an isolated variable, and that its impact is heavily dependent upon a range of other external factors. 144 P Mutzenberg, ‘Essential Actors for Embedding the Covenants in the National Context’ in D Moeckli, H Keller, and C Heri (eds), The Human Rights Covenants at 50: Their Past, Present, and Future (Oxford University Press, 2018) 83, at 88–​9.

470  Philip Alston i The coherence of the Committee’s approach to monitoring The principal output in terms of monitoring is the set of Concluding Observations adopted in response to the examination of each State party report. In the Committee’s early years, these were quite uneven, did not manifest particular consistency in terms of the issues addressed, and tended to be based on limited informational inputs. Today, they compare favourably to the output of any of the other treaty bodies. Far from being formulaic, even if a small number of issues is dealt with in that way, the observations are carefully tailored to the situation in each country and show considerable insight into the problems addressed and the broader context. Unfortunately, as also tends to be the case with other treaty bodies, the list of ‘positive aspects’ is almost entirely symbolic. It is as though a heading is needed to be able to suggest a balance between the positive and the negative, but the content is tokenistic and seems almost arbitrary. The Committee is careful to include extensive cross-​referencing to its own General Comments and more recently to its Views, as well as to soft law instruments adopted by other international organizations. In one case, for example, it invoked eleven of its own General Comments, three ILO Recommendations, one set of FAO Voluntary Guidelines, a CEDAW General Recommendation, three of its own ‘Statements’, and one of its own ‘Open Letters’.145 The Committee achieves a reasonable balance in terms of the range of issues that it is able to address, without producing a meaningless laundry list. Its new policy of identifying three issues for follow up is also helpful in terms both of keeping states on notice and of identifying priority issues that are capable of being addressed within two years. Overall, labour rights continue not to be a significant focus, and nor has the Committee made significant inroads in developing the jurisprudence relating to cultural rights. The Committee is more aware than it used to be of the importance of addressing the implications for the enjoyment of civil and political rights of the denial of ESCR. In some cases, such as housing, human rights defenders, and the independence of the judiciary, it has done this well, but in general there seems to have been a wariness not to encroach on the territory of the Human Rights Committee. This might, however, be counter-​productive to the extent that a holistic approach to human rights might succeed more in gaining public support and reducing the gap in terms of stereotypical attitudes to the different sets of rights. Issues of gender equality have featured prominently in the work of the Committee, and it has not hesitated to address questions such as women’s representation in decision-​making positions; the importance of quotas, even in the private sector; the gender pay gap; the importance of legislation; the need to combat gender stereotypes; and the importance of addressing gender-​based violence. It has sought to protect the rights of sex workers, called for the criminalization of marital rape, and for the equitable distribution of family responsibilities. It has also addressed issues relating to reproductive rights and abortion in states as diverse as Argentina, Mauritius, and Italy.

145

Concluding observations on the initial report of South Africa, E/​C.12/​ZAF/​CO/​1 (29 November 2019).

The Committee on Economic, Social and Cultural Rights  471 The Committee has shown a strong awareness of the need to encourage effective arrangements for the domestic application of ESCR. It regularly draws attention to either the non-​recognition of the relevant rights in domestic law, or to the fact that recognition has led to no meaningful outcomes. But it does not seem to have asked itself what more it can do to remedy these crucial twin defects in most domestic legal regimes relating to ESCR. In addition to questions of justiciability of ESCR, it has regularly focused on the status of National Human Rights Institutions and called for them to be better resourced and more engaged with ESCR. In terms of data availability, it has sought to ensure the integrity of national statistical agencies, called for more effective collection of comprehensive and reliable data, better use of indicators, and improved transparency. ii. The Committee’s response to particularly challenging issues Given the breadth of the rights recognized in the Covenant, the complexity of the obligations imposed upon States parties and the significance of the prevalence of neoliberal economic policies in recent years, there are many challenging issues that might be identified. But for present purposes it must suffice to examine the Committee’s response to the issue of available resources, the minimum core, and its approach to poverty and inequality. In terms of the Covenant’s requirement that states use the maximum of their available resources to satisfy their ESCR obligations, the Committee began by spelling out a clear vision of what this should involve in its General Comment No 3. It then did too little to implement this vision until more recently when it began to recognize the central importance of fiscal policy, especially when confronted with the adoption of austerity policies by States parties.146 In 2012 the Committee’s Chairperson addressed a letter to States parties which looked at Covenant-​related obligations ‘in the context of the economic and financial crisis’, by which was meant the crisis that had been triggered five years earlier.147 This letter was symbolically important, but it did little to develop a practical understanding of how to reconcile fiscal constraints with respect for ESCR. In 2016, however, the Committee followed up with a more detailed and informative statement,148 which has provided an important framework to explain its approach to this issue. But while the statement constituted a very important contribution to the overall debate, much remains to be done in order to arrive at an effective response to policies of austerity.149

146 Olivier De Schutter, The Rights-​Based Welfare State:  Public Budgets and Economic and Social Rights (Friedrich Ebert Stiftung, Geneva, 2018). 147 Letter dated 16 May 2012 addressed by the Chairperson of the Committee on Economic, Social and Cultural Rights to States parties to the International Covenant on Economic, Social and Cultural Rights. 148 ‘Public debt, austerity measures and the International Covenant on Economic, Social and Cultural Rights’, Statement by the Committee on Economic, Social and Cultural Rights, E/​C.12/​2016/​1 (22 July 2016). 149 P Alston, ‘The Impact of Austerity on the Protection of Human Rights’ in K Lenaerts, J-​C Bonichot, H Kanninen, C Naômé, and P Pohjankoski (eds), An Ever Changing Union? Perspectives on the Future of EU Law in Honour of Allan Rosas (Oxford, Hart, 2019) 261.

472  Philip Alston The Committee has, however, given careful attention to the broader role of fiscal policies in relation to ESCR.150 By way of example, it called upon Cameroon to develop ‘a more efficient, progressive and socially just fiscal policy and [increase] the fees charged to foreign investors for the exploitation of forests and extractive resources’,151 while it called upon Argentina to ‘take the necessary measures not only to preserve the redistributive capacity of the tax system but also to strengthen it’. It also suggested a ‘transparent assessment of the various tax exemptions in order to identify their benefits and impacts and to allow for public scrutiny to determine which ones are not justified and should be eliminated’.152 A more complex challenge has been the identification of the ‘minimum core content’ of Covenant rights, which the Committee identified in 1990 as an essential component of States parties’ obligations. The concept has received a very mixed reception both in national courts and in the literature, but the Committee has not yet managed to provide a definitive indication of how it arrives at such a core and what consequences follow. It has been more successful in developing and applying the restrictions on retrogressive measures that were also enunciated for the first time in General Comment No 3 (1990). It succinctly restated its approach in a recent set of Concluding Observations: if the adoption of retrogressive measures is unavoidable, the State party [must] ensure that such measures are absolutely necessary and proportionate, only remain in place insofar as they are necessary, and do not result in discrimination, and that it ensure that the rights of disadvantaged and marginalized individuals and groups are not disproportionately affected.153

Another major challenge for international human rights law concerns the extent of the human rights legal obligations, as opposed to moral or even legal duties or responsibilities, of corporate entities. The relentless march of neoliberal economics has severely limited the capacity of many states to regulate corporate activities effectively, while the phenomena of financialization and privatization have greatly enhanced corporate power. Standard-​setting activities in other forums have produced a plethora of largely non-​binding instruments, but these have been effective mainly around the edges rather than at the heart of the problem. The Committee has, for a number of years, asserted that corporations and other private actors have obligations, and that states have extensive extraterritorial obligations. But it was not until its General Comment No 24 (2017), which focuses on the obligations of States rather than of the private actors themselves, that it set out a detailed analysis of the 150 O De Schutter, ‘Taxing for the Realization of Economic, Social and Cultural Rights’ in P Alston and N Reisch (eds), Tax, Inequality, and Human Rights (Oxford University Press, 2019). 151 Concluding observations on the fourth periodic report of Cameroon, E/​C.12/​CMR/​CO/​4 (25 March 2019), para 15. 152 Concluding observations on the fourth periodic report of Argentina (1 November 2018), E/​C.12/​ARG/​CO/​ 4, para 23. 153 Concluding observations on the sixth periodic report of Bulgaria, E/​C.12/​BGR/​CO/​6 (29 March 2019), para 9.

The Committee on Economic, Social and Cultural Rights  473 basis and implications of those various obligations.154 This is not the place to explore the approach taken, or to consider the criticisms that have been directed at the resulting statement.155 Suffice it to say that the Committee adopted a novel approach that relies more on logic and teleology than on state practice or widely accepted legal interpretations of key concepts. The Committee has also used its Concluding Observations to make detailed recommendations to states in relation to implementation of their National Action Plans, including through effective and transparent monitoring mechanisms and an emphasis on the adaptation of the national legal system to ensure that victims of corporate HR abuses are able to obtain individual and collective redress. Another issue, directly related to those discussed above, is corruption. Here the Committee has taken a more robust and consistent approach than other treaty bodies. It has not confined itself to calling for reforms, or more effective investigation and prosecution, but has gone further as its Concluding Observations on Bulgaria illustrate. It called upon the state to ‘allocate adequate human, material and financial resources’ to fight corruption, to strengthen judicial capacity, to raise public awareness, and to protect ‘whistle-​blowers and civil society activists working on anti-​corruption’.156 Finally, the Committee has also adopted an impressively detailed analysis of the policies required in individual states to combat poverty. In doing so, it has promoted the concept of social protection floors, raised the issue of a universal basic income, and called for ‘a comprehensive, long-​term poverty reduction strategy with specific, measurable targets and a human rights approach’.157 It has also become increasingly focused on the importance of tackling chronic inequality, as illustrated by its analysis of South Africa’s high Gini coefficient and Palma ratio which it said reflected ‘unacceptably high levels of economic and social inequality’, leading it to call on the state to ‘re-​examine its growth model . . . to move towards a more inclusive development pathway’.158 Linked to the focus on poverty and inequality has also been a strong emphasis on the importance of the 2030 Agenda for Sustainable Development at the national level. In addition to persistently raising the issue with states in Concluding Observations, the Committee adopted a major statement in 2019 underscoring the role of human rights and especially the ESCR Covenant in promoting the SDGs.159 154 E/​C.12/​GC/​24 (23 June  2017). 155 See, for example, L Lane, ‘A Comparative Analysis of the General Comments and Jurisprudence of Selected United Nations Human Rights Treaty Monitoring Bodies’ (2018) 5 European Journal of Comparative Law and Governance 5, at 52. On the Committee’s early jurisprudence on extraterritorial obligations, see Mechlem, above n 62. 156 Concluding observations on the sixth periodic report of Bulgaria, E/​C.12/​BGR/​CO/​6 (29 March 2019), para 11. 157 Concluding observations on the fourth periodic report of Argentina, E/​C.12/​ARG/​CO/​4 (1 November 2018), para 44. 158 Concluding Observations on South Africa, above n 145, 16. 159 ‘Leave no one behind 2019: The Pledge to Leave No One Behind: The International Covenant on Economic, Social and Cultural Rights and the 2030 Agenda for Sustainable Development, Statement by the Committee on Economic, Social and Cultural Rights,’ E/​C.12/​2019/​1 (5 April 2019).

474  Philip Alston iii. The Committee’s capacity to address new issues The Committee has been especially impressive in its preparedness to identify and tackle issues that are not addressed explicitly in the Covenant, but that are inseparably linked to acknowledged rights. The best-​known example is its path-​breaking General Comment No 15 (2002) on the right to water, which provided essential impetus to the formal recognition by the General Assembly of rights to water and to sanitation. In response to climate change,160 it has argued ‘that a failure to prevent foreseeable harm to human rights caused by climate change, or a failure to mobilize the maximum available resources in an effort to do so’, could breach Covenant obligations. The difficulty of actually changing the conduct of states is, however, made painfully clear in its concluding paragraph in which it promises ‘to keep under review the impacts of climate change on economic, social and cultural rights, and provide guidance to States . . .’161 It has also promoted a strong concept of extraterritorial obligations, as illustrated by its comment to Argentina that its ‘hydraulic fracturing plan runs counter to the State party’s commitments under the Paris Agreement and would have a negative impact on global warming and on the enjoyment of economic and social rights by the world’s population and future generations’.162 Similarly, it has been in the forefront of efforts to uphold the rights of LGBTI persons, ranging from a focus on the rights of intersex and transgender persons in Germany, and the need to legally formalize same-​sex unions in Cabo Verde, to the repeal of laws criminalizing same-​sex relations in Mauritius and Cameroon. In addition to an increasing focus on the problem of the future of work in a context of growing informality and flexibility in labour contracts, the Committee has also defended the ‘basic electricity needs’ of households,163 and the importance of ensuring the accessibility and affordability of the Internet.164 iv. The Committee’s procedural innovation The extent to which the Committee has been a pioneer in developing new procedures in relation to a great many aspects of the work of human rights treaty bodies has already been noted above and need not be repeated here. Suffice it to say that these represent very important contributions by the Committee to making international monitoring and supervision more meaningful, more participatory, and ideally more productive.

160 See S Humphreys, ‘The Covenants in the Light of Anthropogenic Climate Change’ in D Moeckli, H Keller, and C Heri (eds), The Human Rights Covenants at 50: Their Past, Present, and Future (Oxford University Press, 2018) 279. 161 Climate change and the International Covenant on Economic, Social and Cultural Rights Statement by the Committee on Economic, Social and Cultural Rights, E/​C.12/​2018/​1 (31 October 2018), para 11. 162 Concluding observations on Argentina, above n 158, para 13. 163 Concluding observations on the sixth periodic report of Germany, UN Doc E/​C.12/​DEU/​CO/​6 (27 November 2018), paras 56–​7. 164 Concluding observations on the second periodic report of Turkmenistan, E/​C.12/​TKM/​CO/​2 (31 October 2018), para 45.

The Committee on Economic, Social and Cultural Rights  475 v. The Committee’s success in disseminating the results of its work The review of the literature on impact undertaken above suggests clearly that the Committee has not been as successful as it would no doubt have wished in disseminating the results of its work. To a significant extent, this is a challenge that all of the treaty bodies face. For the most part, there has been an excessive clinging to traditional modes of operation and a reluctance to explore new and innovative means of communication. In a world of instant communication through social media, and short sharp messaging, the techniques relied upon by the treaty bodies begin to look very outmoded, but the resistance to change is great from all sides. Again, this is not the place to explore the implications of this observation but it is widely noted that for anyone other than insiders the website of the Committee is difficult to navigate, its documentation is not easy to find, and there are few pithy summaries available of any of its work. The factsheets developed by the European Court of Human Rights provide a compelling example of the utility of distilling the work of a human rights body into an accessible format and language. One of the principal challenges faced by the Committee in relation to dissemination is the fact that it lacks the specialized support from civil society that treaty bodies working on issues such as women’s rights, children’s rights, the rights of persons with disabilities, and others enjoy. A good example is the support provided to the Human Rights Committee by the Centre for Civil and Political Rights (CCPR-​Centre).165 It aims to ‘promote the participation of NGOs in the work of the Human Rights Committee [b]‌y raising awareness, strengthening the capacity of the NGOs and providing technical and legal support at all stages of the reporting process and the individual complaint procedure.’ It is funded by governments and foundations and assists the committee in a range of ways. No comparable NGO support exists for the ESCR Committee, and this makes a very big difference in terms of outreach and dissemination.



165

http://​ccprcentre.org/​.

13 The Committee against Torture and the Subcommittee for the Prevention of Torture Andrew Byrnes*

13.1  Introduction The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention) was adopted in 1984 and entered into force on 26 June 1987.1 Its goal is to contribute to the eradication of torture, often seen as one of the gravest human rights violations, through a mix of prevention and repression. Article 17 of the Convention established the Committee against Torture (CAT or the Committee), which commenced its work in 1988 and, by the end of 2018, had held sixty-​five sessions. The Convention was supplemented in 2002 by the adoption of an Optional Protocol to the Convention, which established an additional supervisory body, the Subcommittee for the Prevention of Torture (the SPT), which commenced its work in 2007. This chapter primarily examines the work of the Committee over the last thirty years, as well as providing a brief overview of the evolution and functions of the Subcommittee. It first describes the origin and composition of the Committee, and then reviews the Committee's work under the various procedures established by the Convention. The Committee’s contribution to the substantive interpretation of the Convention is then examined. A brief overview of the Subcommittee is then provided, and the chapter concludes with an overall assessment of the contribution that the Committee has made to addressing the problem of torture.

* My thanks to Jane Connors, Felice Gaer, Peter Burns, Moana Erickson, and Alessio Bruni for their assistance with or comments on various drafts of this chapter over its long genesis, as well as to Eleanor Bath for her early research assistance. This chapter draws on research conducted as part of an Australian Research Council-​funded Discovery Project DP0451473 ‘Terrorism and the non-​state actor’. 1 GA Res 39/​46, Annex, A/​39/​51, at 197 (1984), 1465 UNTS 85. See generally J H Burgers and H Danelius, The United Nations Convention Against Torture (Martinus Nijhoff, 1988) [hereinafter Burgers and Danelius] and M Nowak and E McArthur, The United Nations Convention against Torture: A Commentary (Oxford University Press, 2008) [hereinafter Nowak and McArthur]. As of 11 October 2019 there were 169 States parties to the Convention; Brunei Darussalam, Haiti, Palau and Sudan had signed but not (yet) ratified the treaty: United Nations, Multilateral Treaties Deposited with the Secretary-​General [hereinafter Multilateral treaties].

478  Andrew Byrnes

13.2  Origin and composition of the Committee The role of the Committee is to monitor the implementation by States parties of their obligations under the Torture Convention. The Committee's functions, powers, and procedures were largely modelled on those of the other treaty bodies, in particular those of the Human Rights Committee. During the drafting of the Convention various options for monitoring its implementation were proposed. These included no special supervisory procedure at all, supervision by a body appointed by the chair of the Commission on Human Rights, establishment of a supervisory committee of independent experts,2 or supervision by the Human Rights Committee.3 The last proposal was motivated by a desire to ensure consistency in the interpretation of the overlapping guarantees of freedom from torture and cruel, inhuman and degrading treatment and punishment contained in the Convention and in Article 7 of the ICCPR, to draw on existing expertise in the field, to avoid unnecessary procedural duplication and complexity, and to reduce expense.4 In the end, however, the Committee against Torture was established as a separate body of independent experts to monitor the implementation of the Convention. The Committee comprises ten experts elected by the States parties from among their nationals, persons ‘of high moral standing and competence in the field of human rights’, who serve ‘in their personal capacity’.5 CAT is now (together with the Committee on Enforced Disappearances), the smallest of the independent treaty bodies, the size of its membership justified no doubt by the relatively narrow scope of the Convention and considerations of expense. No provision was made in the Convention for its eventual expansion, as was the case with the CRC (now eighteen members), the CMW (now fourteen members), and the SPT (now twenty-​five members). In the election of Committee members, States parties are enjoined to take into account equitable geographical distribution, as under other treaties.6 Regional representation on the Committee has fluctuated: there have generally been three (and often 2 See generally N Rodley and M Pollard, The Treatment of Prisoners under International Law (Oxford University Press, 3rd edn, 2011), 208–​10; Burgers and Danelius, above n 1, 74–​7, 80–​9, 96–​8; Nowak and McArthur, above n 1, 579–​90; C Ingelse, The UN Committee against Torture: An Assessment (Kluwer, 2001) [hereinafter Ingelse]. For an illuminating study of different approaches to eliminating torture, see D Celermajer, The Prevention of Torture: An Ecological Approach (Cambridge University Press, 2018). 3 E/​CN.4/​1285 (1978), reproduced in Burgers and Danelius, above n 1, Appendix 6, 203–​7, Articles 16–​21. See generally ibid 74–​7, 80–​4, 85–​9. 4 See E/​1982/​12/​Add.1, p 12, para 57. 5 Five members of the Committee are elected every two years. The goal of ensuring an overlap of personnel with the Human Rights Committee is realized only in so far as Article 17(2) provides that States parties ‘shall bear in mind the usefulness of nominating persons who are also members of the Human Rights Committee . . . and who are willing to serve on the Committee Against Torture’. The impact of this provision has been limited: only one member of the Human Rights Committee has been elected to the Committee while a member of the HRC (and that in the very early years of the Committee), and only two former members have served on the Committee. 6 International Convention on the Elimination of All Forms of Racial Discrimination, GA Res 2106 A (XX) (1966), 660 UNTS 195, Article 8(1); ICCPR, Article 31(1); and Convention on the Elimination of All Forms of Discrimination Against Women, GA Res 34/​180, Annex (1979), 1249 UNTS 13, at 112, Article 17(1). The additional requirement in these treaties that consideration be given 'to the representation of the different forms of civilisation as well as of the principal legal systems' does not appear in the Torture Convention.

The Committee against Torture  479 four) Western European members, while other regions have tended to have one or two members on the Committee.7 The Convention also requires states to take into account the usefulness of the participation of some persons having legal experience.8 This reflects the fact that as much of the Convention is concerned with the operation of domestic legal systems, legal expertise would be needed on the Committee. Since membership of many of the other treaty bodies has been dominated by lawyers, ensuring the participation of persons with expertise in medicine, health administration, and law enforcement would seem to have been equally important. In fact, the majority of those nominated and those elected to the Committee have been lawyers, though there has also been a consistent presence of health professionals and, more problematically, diplomats or other government officials (some still serving, some retired).9 The pattern of gender under-​representation evident in the treaty bodies other than CEDAW and CRC has also been evident in the case of CAT; relatively few women have been nominated for election to the Committee,10 and in the first twenty years of the Committee there were never more than two women sitting on it. However, following the 2007 elections (in which seven of the twelve nominees were women), the membership of the Committee included an unprecedented four women out of ten members.11 From 2016–​2019 there were four women on the Committee.12

(a)  Institutional location and financing As one of ten UN human rights treaty bodies, the Committee must work within the constraints of the resources of the Office of the High Commissioner for Human Rights. Despite the considerable increase in work undertaken by that office (including that relating to the treaty bodies) and recent increases in budget for OHCHR, the resources available to the treaty bodies have not kept pace with the increasing workload. One problem the Committee faced in its early years arose from the system of financing adopted in the Convention.13 Under Articles 17(7) and 18(5) the expenses of 7 For example, in 2006, the Committee comprised four members from Western Europe and other nations, one from Eastern Europe, two from Latin America, two from Africa, and one from Asia: A/​61/​44, Annex IV (2006). In 2010 there were five WEOG members: A/​65/​44, Annex IV, 237 (2010). Following the 2013 elections, there were three members each from the WEOG and African groups, two from Asia and one each from LAC and Eastern Europe. Following the 2015 elections, the composition was similar, with only one Latin American member and two Asian members. See as of 2015, Table 3, A/​70/​257, at 9. As of 1 January 2019 there were 3 WEOG members, one member from Asia Pacific States and two members from each of the other three regional groupings. 8 Article 17(1) and (2). 9 See Nowak and McArthur, above n 1, 597–​8. See the Addis Ababa Guidelines on the independence and impartiality of members of the human rights treaty bodies, A/​67/​222, Annex II, paras 2 and 3, which have been endorsed by the Committee: CAT/​C/​49/​3 (2013). 10 In the first ten years of the Committee only five women were nominated for election to the Committee (three were elected); only three of the first twenty-​six members of the Committee were women. 11 CAT/​SP/​SR.14 (2007). 12 http://​www.ohchr.org/​EN/​HRBodies/​Pages/​ElectionsofTreatyBodiesMembers.aspx. 13 See generally A Byrnes, ‘The Committee against Torture’ in P Alston (ed), The United Nations and Human Rights: A Critical Appraisal (Oxford University Press, 1st edn, 1992), 519, 521–​3.

480  Andrew Byrnes Committee members and of servicing the Committee were to be paid by States parties rather than being covered out of the regular budget of the United Nations (the situation with all other Committees at that time, apart from CERD). States parties, having learnt from the experience of CERD in this regard, decided that CAT should be funded from the regular budget. In 1992 they adopted an amendment to the Convention and, pending its entry into force, have since 1994 provided for the expenses of the Committee to be paid from the regular budget. The amendment has still not entered into force,14 however, and seems unlikely to do so in the foreseeable future, if ever. The Committee is one of a number of international human rights bodies which has a specific mandate in relation to torture or a general mandate which includes torture. Of particular relevance in the UN context have been the Human Rights Committee and the Special Rapporteur on Torture of the UN Human Rights Council, and more recently the Subcommittee on the Prevention of Torture, though other UN and regional bodies also deal with issues of torture. Despite some early concern that the creation of CAT would lead to unproductive overlap and duplication of work with other mechanisms, this has not turned out to be the case to any significant measure. Sadly, the extent of torture in the world today has generated more than enough work for the different mechanisms, the functions of which differ in important respects, and efforts have been made to coordinate the work of the different bodies. There has been some overlap and the situation in some countries may have been examined under more than one mechanism consecutively or even simultaneously. The various mechanisms have sought to coordinate their efforts by sharing information and avoiding scheduling visits to or inquiries into countries which are already subject of such scrutiny under other mechanisms. Though this has not always happened, major problems do not seem to have arisen—​and it is important in many cases to ensure that states are subject to ongoing scrutiny and pressure from a number of external sources in order to generate momentum for change.

13.3 Monitoring procedures i. The procedures The Convention establishes a number of procedures for monitoring its implementation by States parties. First, states are obliged to report regularly to the Committee on the measures they have adopted to implement the treaty. The Convention also establishes procedures for the consideration by the Committee of complaints by individuals against States parties alleging violations of the Convention, of complaints by one State Party against another, and for referral to arbitration and eventually to 14 Entry into force requires acceptance by two-​thirds of the States parties to the Convention. As of 15 March 2019, only 31 of the required 110 States parties had accepted the amendment (with only one acceptance since 2012): Multilateral treaties, above n 1.

The Committee against Torture  481 the International Court of Justice of disputes between States parties over the interpretation or application of the treaty. Apart from the reporting procedures, all these mechanisms are optional15 and were based on similar procedures of the other human rights treaty bodies. A further mechanism, also optional and at the time of the adoption of the Convention an innovation in the human rights treaty body context, is the inquiry procedure. This empowers the Committee to investigate situations in which it receives ‘reliable information which appears to it to contain well-​founded indications that torture is being systematically practised in the territory of a State Party’.16 All of these procedures will be examined in more detail below. ii. Meeting  time The Committee has now been operating for well over three decades, initially meeting twice a year for two weeks on each occasion, as provided for under its Rules of Procedure.17 This meeting time has proved insufficient for the Committee to discharge its work, especially as its workload under the Convention’s individual communications and inquiry procedures increased. At various times the General Assembly has approved additional meeting time on an ad hoc basis. In 2014, the General Assembly adopted a new system for allocating meeting time to the treaty bodies that has the purpose of matching meeting time more directly to the workload of each committee, as well as setting performance benchmarks by allocating meeting time based on specific time allocations for each of the tasks undertaken by the treaty bodies.18 The formal date for the start of the new system was the beginning of 2015. The Committee held two sessions in each of the years from 2011 to 2014 and three sessions in each year from 2015 to 2018; three sessions were also scheduled for 2019. From 2009 to 2012 the Committee received an average of seventeen reports per year;19 from 2014 to 2017 the average number of reports received annually was sixteen.20 From 2015 to 2017 the Committee considered roughly eighteen reports each calendar year.21 As of May 2019, the Committee had received twenty-​two reports which it had not yet considered, a backlog that has remained more or less the same since at least 2013.22 The allocation of meeting time for the coming years was calculated on the basis of the Committee’s considering sixteen reports per year (the average number of 15 The obligation accepted under Article 21 is also subject to a condition of reciprocity: Article 21 (1). 16 Article 20(1). 17 CAT Rules of Procedure, CAT/​C/​3/​Rev. 6 (2014), Rule 2(1). References are to the 2014 Rules of Procedure, the numbering of which may differ from that in earlier versions. 18 GA Res 68/​268, para 26 (2014). The meeting time is calculated on the basis of the consideration of 2.5 reports per week (estimated on the basis of a historical average of reports received in the previous four years on a rolling four-​year basis), supplemented by an additional two weeks for other mandated activities and 1.3 hours per individual communication considered, as well as a margin that takes into account targeted increases in reporting compliance and is intended to prevent the recurrence of backlogs. 19 A/​71/​118, Annex III (2016) and A/​73/​309, Annex III (2018). 20 A/​71/​118, Annex III (2016). 21 A/​73/​309, Annex V (2018). 22 See A/​74/​44, para 22 (2019) and CAT/​C/​59/​1, 2 (2016), supplemented by material on the OHCHR website, and A/​71/​118, Annex VIII (2016) and A/​73/​109, Annex V (2018).

482  Andrew Byrnes reports received from 2014 to 2017). This may lead to further delays between the submission and consideration of reports or the increase of the backlog, especially if use of the simplified reporting procedure and other measures increases the number of reports submitted and the Committee is also prepared to consider the situation in more states with long overdue reports in the absence of a report.

(a)  Reporting procedure (Article 19) The reporting procedure is the only mandatory part of the Convention's monitoring mechanisms.23 Under Article 19 each State party undertakes to submit to the Committee, within one year after the entry into force of the Convention for that state, a report on the measures it has taken to carry out its obligations under the Convention. Each State party is then required to submit a supplementary report every four years on any new measures it has taken, as well as to provide any other reports the Committee requests. The adoption of a procedure to follow-​up concluding observations following review of a report now means that each State party is also expected to respond on a number of specified recommendations within one years of the review. The Committee has adopted guidelines which indicate to States parties the information it wishes to see included in their reports. These include the harmonized guidelines for the initial part of reports by States parties under the various treaties,24 CAT's guidelines for initial reports,25 and its guidelines for periodic reports.26 Since the Convention is more focused in its scope than other human rights treaties, the preparation of reports should be less demanding than under the other, more widely ranging, treaties, though this had not been reflected in a better record of timely submission. The reports initially submitted to CAT varied considerably in quality and length, and frequently consisted largely of descriptions of legal provisions which make acts of torture unlawful, and of the steps taken to provide preventive education or ensure remedies for those who are the victims of torture. These descriptions varied from the perfunctory27 to the detailed and informative.28 However, over time the quality of reports has improved, the result of states’ experience in reporting under the Convention and other treaties and as a result of the guidance provided by the Committee in its reporting guidelines, general comments, lists of issues, and more detailed concluding observations.29

23 See generally Ingelse, above n 2, Chap 5; Nowak and McArthur, above n 1, 624–​58. 24 HRI/​GEN/​2/​Rev.4, 3 (2007). 25 A/​51/​44, Annex VII (2005), HRI/​GEN/​2/​Rev.4, 68 (2007). 26 CAT/​C/​14/​Rev. 1, A/​53/​44, Annex VI (1998), HRI/​GEN/​2/​Rev.4, 68 (2007). 27 See, eg, the initial reports of Egypt (CAT/​C/​5/​Add.5 (1988)) and Belize (CAT/​C/​5/​Add.25 (1993)). 28 See, eg, the initial report of Canada: CAT/​C/​5/​Add.15 (1989). 29 See C Creamer and B Simmons, ‘Ratification, Reporting and Rights: Quality of Participation in the Convention against Torture’ (2015) 37 Human Rights Quarterly 579.

The Committee against Torture  483 i. States’ record of submission of reports As under other reporting mechanisms, the record of States parties in submitting reports in a timely manner varies, and in practice falls well short of the goal of universal and regular reporting by all States parties. As of 17 May 2019, twenty-​six States parties (or about 16 per cent of the overall total) had still not submitted their initial reports,30 though this was an improvement on the situation a decade earlier.31 Nearly all were developing countries and a number of them small nations. Of these, more than a dozen countries had been overdue for more than ten years, including seven countries overdue for between fifteen and twenty years, and four countries overdue for more than twenty years (Antigua and Barbuda, Cabo Verde, Seychelles, and Somalia).32 Forty-​six States parties were behind in their submission of one or more periodic reports; once again, these were overwhelmingly developing countries.33 Thus, just over two-​fifths of States parties were overdue with reports, many of them by significant periods of time: just under a third of overdue reports were more than ten years overdue.34 This pattern is similar to that under other treaties and raises issues about the delinquent States’ genuine commitment to fulfilling their reporting obligations, as well as the effectiveness of capacity building and technical support provided to smaller and developing states and of the other measures adopted by the Committee and the OHCHR to ensure that reports are submitted or, failing that, reviews of the delinquent states are nonetheless carried out.35 The Committee has adopted steps similar to those taken by other treaty bodies to encourage states to report: regular reminders, letters to foreign ministers or meetings with senior officials, and publication of the list of delinquent states in its annual report. These efforts seem to have had some, limited impact. Further, in response to recommendations made as part of the treaty body strengthening process, the Committee has adopted the measure taken by other treaty bodies and allowed states to combine reports—​a pragmatic measure that nonetheless undermines the periodicity requirements for long overdue reports. A further initiative has been to offer States with long overdue initial reports the option of using the simplified reporting procedure, an invitation taken up by a number of States parties. The possibility of scheduling overdue States for review in the absence of a report, starting with those states whose reports have been overdue for the longest time, was considered as early as 1998, but the Committee was initially reluctant to take this approach,36 presumably because this would have meant that states that had submitted their reports would have to wait longer for them to be considered. While the Committee 30 Based on CAT/​C/​66/​1 (2019) and A/​74/​44, paras 21–​22 (2019). For comparable figures across the treaty bodies as of 31 December 2017, see HRI/​MC/​2018/​2, paras 10–​16, especially Tables 6–​8 (2016) (CAT in middle of range of treaty bodies with ovedure reports). 31 A/​62/​44, Annex V (2007) (27 per cent of initial reports overdue). 32 CAT/​C/​59/​1, 2–​4 (2016). In January 2016 Côte d’Ivoire, overdue for twenty years, accepted the simplified reporting procedure offered by the Committee, with submission due in January 2017. The Committee scheduled Cabo Verde (overdue since 1993) for a November 2016 review in the absence of a report and held the hearing in that month. 33 A/​73/​309, Annex II, Table 6 (2018) and HRI/​MC/​2018/​2, Table 8. 34 A/​73/​309, Annex II, Tables 5 and 6 (2018); HRI/​MC/​2018/​2, paras 10–​16. 35 See Creamer and Simmons, above n 29. 36 CAT/​C/​SR.330, paras 35–​56 (1998). For an overview up to mid-​2019, see A/​74/​44, para 33 (2019).

484  Andrew Byrnes seemed prepared to take such action in 2004,37 it took until 2016 before the first such review took place.38 In 2014–​15 the Committee offered the option of the simplified reporting procedure (described below) to both Cabo Verde and the Seychelles—​the two states whose reports had been overdue for the longest time (over twenty years). The Committee indicated that it would consider the situation in the absence of a report if the states did not accept the procedure or failed to submit a report under the regular procedure. An indication to a State party that it will be reviewed in the absence of a report has on occasion stimulated the submission of a report. For example, following the communication from the Committee in 2014, the Seychelles indicated that a report was under preparation. However, when that report had not been received by August 2017, the Committee informed the Seychelles that it proposed to consider the situation in the absence of a report. The Seychelles government eventually submitted a report during the first week of the session at which it was scheduled to be reviewed and the hearing took place by videoconference.39 In the case of Cabo Verde the Committee invited the State to accept the simplified procedure in April 2015 and, having received no response, informed the State party in December 2015 that it would review the situation in the absence of a report if none was forthcoming. The only response from Cabo Verde to these communications and subsequent reminders was received two weeks before the hearing scheduled for November 2016, informing the Committee that that it would not send a delegation to attend the hearing. The Committee proceeded in the absence of the state (which had also declined the possibility of a video hook-​up).40 The State did not respond to the request to provide further information in response to the concluding observations or to the follow-​ up by the relevant Rapporteur, At the same time, Cabo Verde had plainly been making efforts to fulfill its reporting obligations under UN human rights treaties, having submitted its reports under the CRC, ICESCR, CEDAW and the ICCPR within a five-​month period in late 2017 to early 2018; it had also established an inter-​ministerial commission with responsibility for preparing reports under international human rights treaties.41 In its national report to the Human Rights Council for its May 2018 appearance under the third cycle of the universal periodic review procedure, Cabo Verde stated that the report included the information requested by CAT in its 2016 concluding observations, noting that it would also provide the material directly to the Committee,42 though no material had appeared on the Committee’s website by mid-​2019.

37 CAT/​C/​SR.593 (2004). 38 CAT/​C/​CPV/​CO/​1, paras 2–​4 (2017). In May 2012 the Committee had reviewed the situation in Syria in the absence of the special report that it had requested from that State party in late 2011: CAT/​C/​SYR/​CO/​1/​Add.2 (2012). 39 See CAT/​C/​SYC/​CO/​1, para 2 (2018). 40 CAT/​C/​SR.1486 and CAT/​C/​CPV/​CO/​1 (2017). 41 A/​HRC/​WG.6/​30/​CPV/​1, paras 16, 17 (2018). 42 A/​HRC/​WG.6/​30/​CPV/​1, para 14 (2018) (referring to paras 8 and 93–​101).

The Committee against Torture  485 With Antigua and Barbuda the Committee had followed a similar series of steps, offering the State the simplified reporting procedure and also warning it of the possibility of a review without a report. Despite the Committee’s best efforts, no report was received and the Committee considered the situation in that country with no delegation present (efforts to line up a videoconference having been unavailing because of resistance from the State party).43 Although the Committee should not disadvantage those States parties that have reported by deferring their reviews to deal with delinquent States, it seems unsatisfactory that it took over twenty years of delinquency—​almost a generation—​for the States parties concerned to be reviewed. While the Committee has indicated its intention to continue to review the situation in States parties in the absence of reports in future where necessary, it has also offered the option of the simplified reporting procedure (described below) countries with long overdue reports,44 an offer which a number of these States have accepted. Experience has been mixed, but use of this procedure seems likely to result in many of those States being reviewed. However, the use of the simplified procedure imposes additional burdens on the Committee and secretariat which until now have not been sufficiently accounted for in calculating the resources needed to carry out this work. When the Committee has been particularly concerned about the situation in a State party, it has requested the state as a matter of urgency to ensure the timely submission of its next report, or to submit an overdue report as soon as possible. In other urgent cases the Committee has advanced the consideration of a report already submitted rather than wait for it to come up for review in the regular cycle: it did this in relation to the United Kingdom and the United States after the revelations of detainee abuse in Abu Ghraib and other detention centres.45 The Committee may also request reports on an exceptional basis if information comes to its attention which justifies such a step. This has happened on only a few occasions, with requests made to Israel (1999), Syria (2011), and Burundi (2014).46 The request to Israel followed a decision of the Supreme Court of Israel,47 which in the Committee's view appeared to legitimize actions that violated the Convention.48 The request to Syria, made a year after the country’s report was reviewed and a few months after the government’s response to the concluding observations had been sent,49 was a response to allegations of serious violations of international human rights and humanitarian law involving breaches of the Convention during the civil 43 See CAT/​C/​ATG/​CO/​1, paras 2–​3 (2017) and CAT/​C/​SR.1543 and SR.1545 (2017). After the hearing the government submitted responses to oral questions raised. Another example is Côte dʼIvoire, overdue with its initial report since 1997, which accepted the procedure in 2016 (A/​71/​44, para 35 (2016)). The Committee drew up list of issues in January 2017 (CAT/​C/​CIV/​QPR/​1). However as of mid-​2019, no response to the questions appeared to have been received and there had been no hearing and none was listed as scheduled. 44 A/​73/​44, para 34 (2018); A/​74/​44, paras 28–​29 (2019). 45 A/​55/​44 (2000). 46 A/​71/​44, para 36 (2016). 47 Public Committee against Torture in Israel v The State of Israel (the GSS case), HC/​5100/​94 (1999). 48 For the report of Israel, see CAT/​C/​33/​Add.2/​Rev.1 (1997) and for the concluding observations of the Committee, A/​52/​44, at 38–​9 (1997). See also the further discussions at A/​53/​44, paras 238–​40 and A/​57/​44, paras 50, 52, and 53(d) (2002) and Ingelse, above n 2, 226–​8, and Nowak and McArthur, above n 1, at 541–​3. 49 CAT/​C/​SYR/​CO/​1/​Add.1 (2011).

486  Andrew Byrnes war that had been documented in various UN and other reports.50 The Syrian government challenged the power of the Committee to make such a request under Article 19, refused to submit a report or to attend the meetings.51 The Committee’s request for a further follow-​up report went unheeded,52 with no report since that time submitted to the Committee. The request to Burundi, also made just a year after the review of that country’s report, was in response to information from OHCHR, the Secretary-​General’s Special Adviser on Genocide Prevention, and NGOs reporting numerous cases of summary executions, political assassinations, arbitrary arrest, torture and other ill treatment against opposition groups, journalists, human rights defenders, and others.53 Burundi submitted a report54 and a delegation attended the first meeting with the Committee, but did not formally appear at the second,55 taking strong objection to the Committee’s reference to NGO material of which the government had no notice and to what they considered the unreasonably short time allowed to prepare responses to the Committee’s questions.56 Nonetheless, Burundi responded substantively to the Committee’s concluding observations and to concerns about reprisals.57 ii. CAT’s procedure for consideration of reports The Committee currently has a number of different procedures for the submission and consideration of reports; these have evolved, especially since the mid-​2000s, in response to the harmonization of treaty body practice and efforts to ‘reform’ and ‘strengthen’ the treaty body system, and to the pattern of State party non-​or late reporting. For initial reports, after receiving the State party’s report, the Committee schedules the report for review, to be conducted in dialogue with the state’s representatives. In the case of second and subsequent reports, following receipt of the report, the Committee sends the State party a list of issues for the state to respond to, and the review takes place on the basis of the report, the responses to the list of issues, and information provided by National Human Rights Institutions (NHRIs),58 civil society59 and relevant international and UN bodies. In 2007, as many states were overdue with their reports, the Committee offered states the opportunity to respond to a list of issues drawn up by the Committee and to consider those responses as the state’s report for the relevant period (thus facilitating their translation). The review was to be conducted on the basis of those responses and other material. This procedure, originally known as the List of Issues Prior to Reporting 50 CAT/​C/​SYR/​CO/​1/​Add.2, paras 1–​6 (2011). 51 CAT/​C/​SR.1072 (2012) and CAT/​C/​SYR/​CO/​1/​Add.2, paras 7–​10, and 14–​15 (2012). 52 CAT/​C/​SYR/​CO/​1/​Add.2, para 24 (2012). 53 http://​www.ohchr.org/​Documents/​HRBodies/​CAT/​SpecialReportBurundi.pdf and Add.1, paras 2-​3 (2016). 54 CAT/​C/​BDI/​2/​Add.1 (2016). 55 CAT/​C/​BDI/​CO/​2/​Add.1, paras 5–​7 (2016). 56 CAT/​C/​BDI/​CO/​2/​Add.2, paras 44–​56 (2016). 57 CAT/​C/​BDI/​CO/​2/​Add.2, paras  193–​9. 58 CAT Rules of Procedure, above n 17, Rule 63. 59 Ibid.

CAT/​C/​BDI/​CO/​2/​

The Committee against Torture  487 (LOIPR) and now designated as the simplified reporting procedure, was an innovation of the CAT. It has since been taken up by other committees. Most states have agreed to the procedure, with only a small number expressly declining the option.60 At first the simplified reporting procedure was not offered to states whose initial reports were overdue but, given the extremely lengthy delays with so many initial reports, in 2016 the Committee decided to offer the option to two such states per year.61 i) Constructive dialogue The Committee has embraced the notion of a constructive and ‘interactive’ dialogue62 with the State party’s representatives, on the basis of information contained in its report, though it has been prepared to review a report or country in the absence of a delegation.63 Prior to the meeting with the State party, the Committee appoints a country rapporteur and an alternate country rapporteur; their task is to take primary responsibility for the analysis of the report and to lead the discussion. At the meeting with the State party, the government representatives first introduce the report, and this is followed by questions from Committee members. The state responds to these at the same or a subsequent meeting, followed by any further questions from Committee members.64 The questioning by the Committee is reasonably incisive and efficient, with members dividing responsibility for certain areas among themselves. While credit is typically given to states where it is due, members have also drawn attention both to the inadequacies of reports and the failure by states to carry out their substantive obligations under the Convention.65 Over the years, the scope of the Committee’s examination has broadened, from a focus on the legal provisions in place in a state to include practice in the state and practical measures to prevent torture or to investigate, punish and provide remedies for it when it does occur. Questioning by the Committee (both in written lists of questions and oral questions) includes standard questions put to nearly all states: the incorporation of the Convention definition of torture into domestic law; legislative implementation of other provisions of the treaty including those relating to extradition, non-​refoulement, protection against incommunicado or arbitrary detention; the independence of the judiciary, legal and other oversight mechanisms; prison conditions; the use of corporal punishment; the treatment of refugees and asylum-​seekers; the availability of remedies for torture and other forms of ill treatment; education and training, investigations into alleged torture and ill treatment; and, increasingly, issues such as infliction of torture by private actors 60 A/​74/​44, para 29 (2019). 61 A/​71/​44, paras 30–​1 (2016). 62 CAT Rules of Procedure, above n 17, Rules 68 and 70. CAT has endorsed the Guidance note for States parties on the constructive dialogue with the human rights treaty bodies, adopted by the Chairs of the human rights treaty bodies (dialogue to be conducted in an ‘interactive, effective, efficient and respectful manner’: A/​69/​285, Annex I, 23 (2014)). For a critique of the civility and diplomatic values and assumptions underlying the constructive dialogue practices and its impact on understanding and addressing that structures that lead to torture, see T Kelly, ‘Two Cheers for Ritual: The UN Committee Against Torture’ (2018) 9(1) Humanity: An International Journal of Human Rights, Humanitarianism, and Development 93. 63 Eg, Cambodia in 2003: A/​58/​44, para 95 (2003); Syria in 2012; Cabo Verde in 2016. 64 The live streaming of Committee sessions in recent years has greatly expanded the audience for the hearings. 65 For a more critical analysis of the process, see Kelly, above n 62, 99–​100.

488  Andrew Byrnes (including violence against women) where the state has failed to take appropriate measures of prevention or repression. Other questions are tailored to the specific circumstances or alleged violations of the Convention that have arisen in a particular state. For example, the Committee pressed the United States about its Guatánamo Bay and other offshore detention facilities and its practice of secret renditions;66 the Russian Federation inter alia about ‘serious acts of intimidation, reprisals and threats against human rights defenders and journalists, including deaths, and the failure of the State party’s authorities to effectively investigate such acts and hold accountable the perpetrators;67 China on laws and practices which make it illegal or impossible for lawyers to offer proper legal assistance to defendants in criminal cases (including arresting and detaining lawyers)68 and the continuing use of administrative detention as punishment or a means of suppressing dissident views;69 the Holy See in relation to its responses to institutional child abuse in Catholic institutions around the world;70 Saudi Arabia about punishments such as floggings and amputations that were defended as not being inconsistent with the Convention;71 Ghana on the harmful traditional practices such as violence against or exclusion of widows and violence against women accused of practising witchcraft;72 and Australia on the overrepresentation of indigenous people in the criminal justice system, and the mandatory and offshore detention of asylum-​seekers.73 ii) Concluding observations and follow-​up Following its dialogue with the State party, the Committee formulates its concluding observations on the report.74 These follow the standard structure used by other treaty bodies, with sections setting out the positive aspects of the State's record, principal concerns, and detailed recommendations for action.75 Concluding observations have become longer:  in the Committee’s early years they were extremely concise, being delivered shortly after the conclusion of the dialogue. The Committee’s practice is now very similar to that of the other committees, the result of greater interaction between the treaty bodies.76 Some states have taken the opportunity to respond formally to the concluding observations of the Committee; these responses are now published on the Committee’s website.. These sometimes provide information in response to requests

66 See, eg, CAT/​C/​SR.703 (2006), CAT/​C/​SR.706 (2006), and CAT/​C/​USA/​Q/​5 (2010). 67 CAT/​C/​RUS/​CO/​5, para 12 (2012). 68 CAT/​C/​CHN/​Q/​5, para 6 (2011). 69 Ibid, para 9 (2011). 70 CAT/​C/​SR.1220 (2014) and CAT/​C/​SR.1223 (2014). 71 See CAT/​C/​SAU/​Q/​2/​Add.1, para 2 (2016), CAT/​SAU/​Q/​2/​Add.2, paras 4–​6 (2016) and CAT/​C/​SAU/​CO/​2, paras 10–​11 (2016). 72 CAT/​C/​GHA/​CO/​1, para 23 (2011). 73 CAT/​C/​AUS/​CO/​4-​5, paras 12–​13, 16–​17 (2014). 74 Based on its power to adopt ‘general comments’: see discussion below (pages 12–​13) and A/​53/​44, para 27 (1998). 75 See generally CAT/​C/​SR.342, paras 1–​23 (1998). See also the Statement of the Committee against Torture on the adoption of its Concluding Observations (14 May 2009), CAT/​C/​42/​3 (2009). 76 See ‘Framework for the concluding observations’, A/​69/​285/​Annex II (2014).

The Committee against Torture  489 from the Committee; in other cases they may take exception to Committee findings or its interpretations of the treaty. iii) Follow-​up to concluding observations In line with developments elsewhere in the treaty body system, the Committee has developed detailed procedures and guidelines for follow-​up to its concluding observations on state reports. The current procedure (Rule 72) has developed from the Committee’s decision in 200377 to establish a follow-​up procedure under which it identifies in its concluding observations up to four specific recommendations (chosen according to specified criteria78) as priorities for implementation by a state. The state is asked to report on the implementation of these within twelve months, and is also invited to report on its plan for implementing other recommendations in the concluding observations.79 The Rapporteur undertakes an assessment of the material submitted and ranks the material under three categories: the quality and relevance of the information; the extent of implementation of the recommendations; and an assessment of the implementation plan. The Rapporteur assesses the relevance and completeness of the information provided in relation to the specific recommendations, whether the recommendations have been implemented, with assessments ranging from ‘fully implemented (A)  to actions taken contrary to the recommendation (E), with implementation plans similarly graded from ‘fully compliant’ to ‘not provided’.80 The communications between the Committee and the State party and all other relevant material are made available on the Committee’s website, thus ensuring transparency and deploying what pressure such publicity may exert. The procedure replaced an earlier reasonably effective procedure and also appears to have had considerable success in eliciting a first round of responses from states (and sometimes NGO comments on state responses), though states appear more reluctant to engage in a continuing dialogue with the Committee through this procedure. As of May 2016 roughly 70 per cent of the states requested to submit follow-​up reports had done so;81 by May 2019, 74 per cent had done so. The 2016 report of the Committee summarized the assessment of state responses by the Rapporteur on follow-​up. The Rapporteur had reviewed twenty-​three responses involving eighty-​ seven recommendations and found that in 52 per cent of cases ‘thorough and extensive information had been provided’, in 38 per cent the information ‘had addressed the recommendations to some degree’; in 10 per cent of the cases the information ‘failed to relate to the recommendations’. The substantive implementation of the relevant recommendations was less impressive, the Rapporteur finding ‘full implementation’ in only 6 per cent of the cases; ‘substantive steps’ towards implementation in 24 per cent; ‘initial implementation steps’ in 33 per cent; and ‘no implementation’ in 29 per cent of

77 A/​60/​44, paras 115 (2005).

78 Guidelines for follow-​up to concluding observations, CAT/​C/​55/​3, paras 7–​10 (2015). 79 Ibid, para 11. 80

HRI/​MC/​2017/​4, paras  11–​23.

81 A/​71/​44, para 45 (2016). See also https://​www.ohchr.org/​EN/​HRBodies/​CAT/​Pages/​FUReports.aspx.

490  Andrew Byrnes the cases, with insufficient information in 8 per cent to make an assessment.82 On the basis of the material publicly available, it is difficult to assess what practical changes have resulted in some of the cases characterized as involving (moves towards) substantive implementation. While the strengthening of the reporting procedure, particularly through the implementation of the follow-​up procedure, has not produced the highest levels of compliance, it has nonetheless had a significant impact in increasing the iterative aspects of the reporting procedure that are important to the internalization and implementation of treaty norms.83 iv) The role and input of NGOs Non-​governmental organizations play a critical role in the Committee’s work.84 The Committee has recognized the importance of NGOs by making formal provision for their involvement in its work.85 This has included the submission of written information at various stages of the reporting procedure, and since 2005 the opportunity to meet with the Committee in private session with interpretation the day before the review of the country concerned.86 Since 2005 the Committee has met with NGOs in a private meeting with interpretation at the beginning of each session. In 2015 it also invited national human rights institutions and national preventive mechanisms to submit written information to and to meet with the Committee, and they do so regularly.87 It has also adopted guidelines and procedures in relation to reprisals against NGOs and others who participate in its work or use its procedures,88 has appointed a rapporteur on reprisals and has taken up allegations of reprisals with States parties.89 iii. The power of the Committee to make ‘general comments’ The Committee is empowered to make ‘such general comments’ on each report as it may consider appropriate.90 The Convention thus made clear what had originally been disputed in the case of a number of the other treaties,91 namely that the Committee may formally comment on a report submitted by an individual State party.92 The 82 A/​71/​44, para 53 (2016). 83 Creamer and Simmons, ‘Do self-​reporting regimes matter? Evidence from the Convention against Torture’, Boston University School of Law Public Law & Legal Theory Working Paper No 15-​55 (1 December 2015). 84 Information is provided to the Committee regularly by Amnesty International, the World Organisation against Torture, the Association for the Prevention of Torture, as well as by other international and national NGOs. See A/​74/​44, para 14 (2019). 85 See CAT Rules of Procedure, above n 17, Rule 63. 86 See A/​62/​44, para 15 (2007); A/​74/​44, para 14 (2019); Information for Civil Society Organisations and National Human Rights Institutions (NHRIs), available at: www.ohchr.org/​EN/​HRBodies/​CAT/​Pages/​NGOsNHRIs.aspx. 87 A/​62/​44, para 16 (2007); A/​74/​44, para 15 (2019). 88 CAT/​C/​51/​3 (2013) and CAT/​C/​55/​2 (2015). 89 CAT/​74/​44, para 16 (2019). Details available at: www.ohchr.org/​EN/​HRBodies/​CAT/​Pages/​ReprisalLetters. aspx. 90 Article 19(3). 91 See A Byrnes, ‘The “Other” Human Rights Treaty Body: The Work of the Committee on the Elimination of Discrimination Against Women’ (1989) 14 Yale Journal of International Law 1, 42–​4; and Nowak and McArthur, above n 1, 653–​6. 92 Burgers and Danelius, above n 1, 158–​9; Nowak, ‘The Implementation Functions of the Committee Against Torture’ in M Nowak, D Steurer, and H Tretter (eds), Fortschritt im Bewusstsein der Grund-​und Menschenrechte: Festschrift für Felix Ermacora (Engel, 1988), 493, 499–​502.

The Committee against Torture  491 phrase indicates that the Committee should not address itself to individual cases of alleged violations in that state but could refer in general terms to specific aspects of the implementation of the Convention in that state, although this has not prevented the Committee from addressing individual cases as part of its discussion with states. The Committee makes such ‘general comments’ on individual State party reports in the form of concluding observations adopted following its examination of a state’s report. It must forward these to the State party concerned and may decide to include them in its annual report, together with any observations received from the State party.93 The Committee published the full text of its concluding observations in its annual report until 2014;94 due to the page limits imposed on treaty bodies’ annual reports in that year,95 these now appear only on the OHCHR website, together with responses from States parties and any comments from NGOs. The Committee also formulates ‘general comments’ of a different sort, in which it sets out its understanding of specific provisions of the Convention. The final version of the Convention did not explicitly confer on the Committee the power enjoyed by all the other treaty bodies to make 'general comments' or 'general recommendations' addressed to all States parties,96 as opposed to general comments on the report of a specific State party.97 Nevertheless, the Committee has taken the view that it possesses an implied power to make such general comments as part of its function of monitoring and encouraging the better implementation of the Convention.98 There has been the occasional challenge to CAT’s power to do this,99 and states have also taken exception on occasion to the authority claimed by the Committee for itself to formally state its interpretation of provisions of the Convention, as well as to the content of specific general comments.100 But for the most part, States parties have not objected to the practice, which is a useful one for states and others, even if states do not always agree with the interpretations the Committee adopts. Thus far, the Committee has made sparing use of this power. In 1997 it adopted its first General comment, on Article 3 of the Convention (’non-​refoulement’) in the context of the Article 22 procedure.101 Its second General Comment, on Article 2 of the Convention, was finalized in 2007,102 and its third on Article 14 of the Convention

93 Article 19(4). 94 The last annual report to contain the full text was that for 2013–​2014: A/​69/​44 (2014). 95 As a result of GA Res 68/​268. 96 Nowak, above n 92, 501. 97 Burgers and Danelius, above n 1, 159, comment that lack of power to make general comments addressed to all States parties ‘is certainly not something the authors of the Convention intended’. 98 CAT Rules of Procedure, above n 17, Rule 74. 99 See, for example, Comments of the Holy See on the Concluding observations of the Committee against Torture, 15 May 2015, CAT/​C/​VAT/​CO/​1/​Add.1, para 18(c) (2015) (a function ‘not foreseen by the Convention’). 100 See ibid, as well as Observations by the United States of America on Committee Against Torture General Comment No 2: Implementation of Article 2 by States Parties, 3 November 2008, Digest of United States Practice in International Law 2008, 269, 271. 101 General comment on the implementation of article 3 of the Convention in the context of article 22 [General comment No 1], A/​53/​44, Annex IX (1998). 102 General comment No 2: Implementation of article 2 by States Parties [General comment No 2], A/​63/​44, Annex VI (2008). See Gaer, ‘Opening Remarks: General Comment 2’ (2008) 11 New York City Law Review 187.

492  Andrew Byrnes relating to redress for torture, was adopted in 2012. In 2017 it adopted No. 4,103 which replaced General Comment No 1. The Committee chose Article 3 as the subject of its first General comment because of the large number of Article 3 complaints it had received under the Article 22 individual communications procedure; the continued flow of such complaints in the ensuing two decades raised many new issues leading to the much expanded General comment No 4. The General comment on Article 2 was the result of the Committee’s desire to provide the fruits of its experience in relation to one of the fundamental provisions of the Convention, which it sees as embodying an overarching obligation to eliminate torture, of which other provisions of the Convention are specific instances. General comment No 2 deals with issues of incorporation of the Convention’s definition of ‘torture’ in domestic law, the substantive and territorial scope of the Convention obligations, the position of the state in relation to the actions of non-​state actors and the non-​derogability of the obligations. While these are all issues of central importance to the implementation of the Convention, the Committee also took the opportunity to address the relevance of the Convention to measures taken by some countries in the pursuit of the so-​called ‘war on terror’, including rendition, secret detention centres, torture and ‘enhanced interrogation techniques’, and the rejection by some states of the extension of the Convention to these activities, jurisdictionally and substantively.

(b)  Investigation on its own initiative (Article 20) Article 20 confers power on the Committee to undertake an inquiry on its own motion when it receives reliable information indicating the systematic practice of torture in the territory of a State Party.104 The Convention was the first UN human rights treaty to adopt a procedure of this sort (though it drew on the procedure established by ECOSOC Res 1503 some years earlier); similar procedures have subsequently been adopted for other treaties. A state that becomes party to the Convention is subject to the Article 20 procedure unless it expressly declares at the time of its ratification or accession that it does not accept the competence of the Committee under Article 20.105 This contrasts with the procedures under Articles 21 and 22, which require the making of a declaration of acceptance of the competence of the Committee under those articles. Despite some early predictions that the Article 20 procedure would be blunted by States parties opting out

103 General comment No 4 (2017) on the implementation of article 3 of the Convention in the context of article 22, CAT/​C/​GC/​4 (2017). 104 M Tardu, ‘The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (1987) 56 Nordic Journal of International Law 303, 318; Burgers and Danelius, above n 1, at 160; Nowak, above n 92, 503; Ingelse, above n 2, Chap 6; Nowak and McArthur, above n 1, 659–​98. 105 Article 28(1).

The Committee against Torture  493 of it,106 the fact that States have to opt out expressly has apparently inhibited their doing so. As of 11 October 2019 only 17 of the 169 States parties were not subject to the procedure (a number of other States which had opted out on ratification have subsequently withdrawn their declarations).107 This may be compared with the acceptance by States parties of the Article 21 and 22 procedures: 62 and 67 States parties respectively had made declarations under those articles, as compared to the more than 150 States that have accepted the Article 20 procedure. The procedure consists of four stages.108 While the Committee is required to seek cooperation and input from the State party concerned at every stage of the procedure, the failure of a State party to cooperate does not prevent the Committee from proceeding with its inquiry. Apart from limiting the material before the Committee, the major drawback of non-​cooperation is that the members of the Committee delegated to conduct an inquiry will not be able to pay a visit to the country concerned. The procedure is triggered by the receipt by the Committee of ‘reliable information which appears to it to contain well-​founded indications that torture is being systematically practised in the territory of a State Party’.109 Article 20 does not specify the sources of information that may be drawn on in deciding whether to institute an inquiry; in practice this information has come from NGOs. There is no requirement that local remedies must be exhausted before the procedure can be invoked, presumably due to the fact that the inquiry involves examination of a general situation rather than an individual complaint. Article 20 requires that the Committee be satisfied that the source of the information and/​or the information itself can be relied on;110 it must then determine that this information contains well-​founded indications that torture is being practised systematically on the territory of a State party. The procedure applies only in cases in which torture appears to be involved; it does not apply to cruel, inhuman and degrading treatment or punishment. The Committee has applied the following standard for determining whether ‘systematic torture’ exists:111 106 R Marx, ‘Die Konvention der Vereinten Nationen gegen Folter und andere grausame unmenschliche oder erniedrigende Behandlung oder Strafe’ (1986) 19 Zeitschrift für Rechtspolitik 81, 84. 107 Multilateral Treaties, above n 1. The Bahamas, China, Cuba, Equatorial Guinea, Eritrea, Indonesia, Israel, Kuwait, Lao PDR, Mauritania, Pakistan, Poland, Samoa, Saudi Arabia, the Syrian Arab Republic, the United Arab Emirates and Vietnam have opted out of the procedure. In contrast Afghanistan, Bahrain, Belarus, Bulgaria, Chile, Czechoslovakia, the GDR, Guatemala, Hungary, Morocco, the USSR, Ukraine, and Zambia, while opting out of the procedure at the time they ratified the Convention, subsequently accepted the procedure (the Czech and Slovak Republics after their separation, and the GDR before its integration with the Federal Republic of Germany). The only cases where territory has been subject to the Article 20 procedure but then removed from it are Hong Kong and Macao, which were governed by the ratification by the United Kingdom and Portugal respectively until the resumption of sovereignty over those territories by China in 1997 and 1999. In each case, China's notification of the continued application of the Convention to the two territories expressly excluded the Article 20 procedure, apparently without objection from any other State party: ibid. 108 See CAT Rules of Procedure, above n 17, Part XIX, Rules 75–​90. 109 Article 20(1). 110 In so doing, it may obtain information about the nature of the source or may obtain information from elsewhere to determine the reliability of the information. CAT Rules of Procedure, above n 17, Rule 81. 111 A/​48/​44/​Add.1 (1993) [Turkey report], para 39, reiterated in A/​51/​44, paras 180–​221 (1996) [Egypt report], para 214, and subsequent reports.

494  Andrew Byrnes The Committee considers that torture is practised systematically when it is apparent that the torture cases reported have not occurred fortuitously in a particular place or at a particular time, but are seen to be habitual, widespread and deliberate in at least a considerable part of the territory of the country in question. Torture may in fact be of a systematic character without resulting from the direct intention of a Government. It may be the consequence of factors which the Government has difficulty in controlling, and its existence may indicate a discrepancy between policy as determined by the central Government and its implementation by the local administration. Inadequate legislation which in practice allows room for the use of torture may also add to the systematic nature of this practice.

If the Committee determines that the information satisfies the threshold test, it must then refer the matter to the State party concerned, seeking its cooperation and input.112 At this stage the Committee may also seek information from other sources, including UN bodies, NGOs and individuals, and must then decide whether an inquiry is appropriate. If it does so decide, one or more members of the Committee are appointed to carry out the inquiry and to report to the Committee urgently. If the State party agrees, the inquiry may include a visit to the territory of the state. Those conducting the inquiry may also enlist the aid of medical experts or persons with experience in relation to the detention of prisoners.113 All stages of the procedure are confidential until the inquiry has been completed and the Committee has sent its findings to the state concerned, together with any comments or suggestions it feels appropriate to make. At this stage the Committee may decide to publish a summary of the proceedings. While it must consult with the state concerned before doing so, it does not need the state’s consent to publish a ‘summary account’ of its report on the inquiry.

(c)  Inquiries undertaken As of the end of 2018 the Committee had completed ten inquiries under Article 20, in relation to Turkey (1993),114 Egypt (1996),115 Peru (2001),116 Sri Lanka (2002),117 Mexico (2003),118 Yugoslavia (Serbia and Montenegro) (2004),119 Brazil (2007),120 Nepal (2012),121 Lebanon (2014),122 and a second inquiry relating to Egypt initiated

112

CAT Rules of Procedure, above n 17, Rule 82. Ibid, Rule 88. 114 Turkey report, above n 111. 115 Egypt report, above n 111. 116 A/​56/​44. paras 144–​93 (2001). 117 A/​57/​44, paras 123–​95 (2002). 118 CAT/​C/​75 (2003) (full report) [Mexico report]; A/​58/​44, paras 147–​53 (summary account). 119 A/​59/​44, paras 156–​240 (2004). 120 CAT/​C/​39/​2 (2007). 121 A/​67/​44, Annex XIII (2012). 122 A/​69/​44, paras 100–​15 and Annex XIII (2014). 113

The Committee against Torture  495 in 2012 (2017).123 With one exception, in all of the completed inquiries the Committee found that torture was being systematically practised;124 with Sri Lanka it concluded that while, there were ‘a disturbing number of cases of torture and ill treatment’, there was not a ‘systematic’ practice of torture.125 The power of the Committee to proceed with an inquiry if the State party refuses to cooperate at any stage has proved significant, as the initiation of an inquiry is likely in most cases to arouse opposition or hostility on the part of the state concerned. For example, the Turkish authorities were initially unwilling to cooperate with the Committee, but subsequently arranged for a visit by two members of the Committee as part of the inquiry. In the case of the Committee’s first inquiry into Egypt, the government, while stating its preparedness to cooperate and to arrange a visit at an appropriate time, delayed for the better part of a year. As a consequence the Committee completed its inquiry without the visit, apparently having reached the view that the Egyptian government would not agree to one at any stage or was intent on delaying the progress of the inquiry indefinitely.126 While the Committee was not able to visit Egypt, it based its conclusions on a number of different sources, including NGO and UN sources, and the Egyptian government had a number of opportunities to provide input and comment on the draft conclusions before the report was finalized. Nor was the Committee able to arrange a visit to Egypt for its second inquiry, with the State party adopting delaying and avoidance strategies with the result that the Committee once again proceeded with the inquiry without a visit. The other countries which have been the subject of Article 20 inquiries since that time have been more cooperative, although the Committee was unable to visit Nepal. Although the Committee is required to consult with the state before publication of a ‘summary account’, it does not require the consent of the State to publish:  the Committee published the summary accounts in relation to Egypt and Turkey over the objections of those two states.127 In the cases of Peru, Sri Lanka, Lebanon and Egypt (both inquiries), the Committee published only summary accounts, while for Mexico, Brazil, and Nepal, lengthy, more detailed reports were published, with the consent of the states concerned. The ability of the States parties concerned to block the publication of the full report is a barrier to full transparency and accountability of the State, and its exercise by those States clearly intended to limit criticism by the Committee. States’ reactions to the Committee’s findings have at times been hostile. For example, following the conclusion of the respective inquiries concerning Turkey and Egypt, the Committee was the subject of energetic and strongly worded attacks by each State party in various international fora.128 Peru, Brazil, and Lebanon explicitly rejected 123 A/​72/​44, paras 58–​70 (2017) (summary account of the proceedings). 124 See generally Nowak and McArthur, above n 1, 684–​95. 125 A/​57/​44, at para 181. Rodley and Pollard consider that this conclusion ‘defies analysis’: above n 2, at 218. See also Nowak and McArthur, above n 1, at 692. 126 Egypt report, above n 111, paras 216–​8. 127 Turkey report, above n 111, para 20; Egypt report, above n 115, para 199. See Nowak and McArthur, above n 1, 697. 128 For Turkey’s responses, see Statement of the Geneva Permanent Representative of Turkey, 24 November 1993, CAT/​C/​SR.5, paras 43–​66 (1993); The views of the Government of Turkey with regard to the 'summary account

496  Andrew Byrnes the finding that systematic torture was practised; Lebanon claimed to be ‘utterly astounded’ at the Committee’s conclusions and ‘expressed great surprise at the logic employed . . . in reaching the conclusions’.129 Brazil, while recognizing the problems it faced, particularly in relation to widespread inhuman and degrading conditions of detention, took issue with the Committee’s interpretation of the phrase that ‘torture is being systematically practised’.130 It argued, contrary to the Committee’s articulated standard, that the proper interpretation of this phrase required intention to be shown and a demonstration that the acts of torture in question have been carried out ‘in a deliberate and planned manner’.131 It also contested the finding that poor conditions of detention amounted to ‘torture’ as opposed to other forms of ill treatment covered by Article 16.132 Despite such disagreements, states have normally provided detailed and generally constructive responses to the recommendations of the Committee and indicated the measures that have been adopted during the inquiry or intended to be introduced following its conclusion.133 The Committee’s Rapporteur on Article 20 has responsibility for following up with states which have been the subject of inquiries,134 though no detailed assessment has been publicly provided of the extent to which the recommendations have been followed; follow-​up can also occur in the next report of the state to the Committee.135 It is difficult to assess the impact of these inquiries. The reports of the Committee have contained detailed analysis and recommendations to governments, and they have engaged the attention of government officials and in some cases appear to have led to changes. Of course, the inquiries by the Committee were only one of a number of external and internal pressures on the governments, and it is difficult to attribute changes to any particular intervention. For example, insofar as the inquiry into Turkey contributed to the pressure on that state, it may have contributed to the speedier adoption of measures that were already in the pipeline and perhaps even led to new steps. Nevertheless, there were still major problems of systematic torture in Turkey.136 Similar of the results of the proceedings concerning the inquiry on Turkey' of the Committee against Torture, Annex to Letter dated 29 November 1993 from the Permanent Representative of Turkey to the United Nations addressed to the Secretary-​General, A/​C.3/​48/​21 (1993). Egypt also criticized the work of the Committee following the report on Turkey and consideration of its own second periodic report (CAT/​C/​SR.170), at a time when Egypt was itself the subject of a confidential inquiry under Article 20 (which had commenced in 1991): CAT/​SP/​SR.5, paras 73–​83 (1993). In relation to the second inquiry into Egypt, the government provided a reply in which it rejected the Committee’s conclusion arguing that the material presented to the Committee did not support a finding that it had engaged in systematic torture. Egypt accepted many of the Committee’s recommendations but stated that they were already being implemented. However, it rejected a number of recommendations: A/​73/​44, para 71 (2017). 129 A/​69/​44, Annex III, para 50 (2014). 130 CAT/​C/​31/​2, paras 229–​41 (2009). See C Grossman, ‘Implementing Human Rights in Closed Environments through the United Nations Convention against Torture’ (2014) 31 Law in Context 125, 137–​40. 131 CAT/​C/​31/​2, para 236 (2009). The test appears to have been applied more stringently to Brazil than it was to Sri Lanka. 132 CAT/​C/​31/​2, paras 242–​52 (2009). 133 See, eg, Mexico report, above n 118, paras 223–​336 (2003). 134 A/​61/​44, para 53 (2006). 135 In the case of Egypt, the Committee decided to request the submission of a timely third periodic report, and did not take up the suggestion by Amnesty International that it request a special report: CAT/​C/​SR.342, paras 29–​ 36 (1998). 136 Amnesty International Report 1997, ‘Turkey’, http://​www.amnesty.org/​ailib/​ar97/​eur44.htm.

The Committee against Torture  497 comments may be made of a number of the other inquiries. In the case of the first inquiry into Egypt, the report shows far less by way of legislative or other measures being put forward by the government in response to the Committee’s criticisms, and it seems that the short-​term impact was limited.137 Egypt’s dubious honour of having been the subject of two inquiries under Article 20 suggest that the problems are such that this type of review will have only a limited impact on the circumstances giving rise to torture. The contribution of the Committee has probably nonetheless been to add to the international pressure to address the problems which exist in the states which it has chosen to examine.

(d)  Inter-​state complaints (Article 21) Article 21 of the Convention establishes a procedure for processing complaints by one State party that another State party is not giving effect to the provisions of the Convention.138 The procedure binds only those states which have made a declaration accepting the competence of the Committee under Article 21 on the basis of reciprocity. Five declarations were necessary for the procedure to enter into force, and it did so on 26 June 1987 as between the states which had made such declarations. As of 11 October 2019, sixty-​one States parties had made declarations under Article 21.139 The procedure is initiated by one State party communicating to another its view that the latter is not fulfilling its obligations under the Convention.140 The other state is then required to respond within three months. If the matter is not settled within six months of the original communication, then either state may refer the matter to the Committee. The Committee, after satisfying itself that the communication is admissible, is then to offer its good offices in an attempt to settle the matter, and may appoint an ad hoc conciliation commission for this purpose. The Committee must submit a report within twelve months of having the matter referred to it. If a matter has been settled, the report is to consist simply of a statement of the facts and of the solution reached; if a matter has not been settled, the report is to include a statement of the facts and the written and oral submissions made to it by the States parties concerned. While the report must be given to the States parties concerned, the Convention does not indicate whether it can also be made public, though it would be reasonable to assume that the Committee has the power to do so.141 One commentator has described the procedure as a 'very modest and badly drafted means of implementation'142 and, as with similar procedures under the other UN human rights treaties, the procedure has not yet been used and it seems unlikely that 137 See eg, Amnesty International, ‘Egypt: Government fails to end torture’, AI Index MDE 12/​23/​98, 7 May 1998. 138 See Nowak, above n 92, 510–​17; Ingelse, above n 2, at 197–​200; Nowak and McArthur, above n 1, at 699–​718. 139 Multilateral treaties, above n 1. Of those, all but Japan, Uganda, the United Kingdom, and the United States had also accepted the individual complaints procedure under Article 22. 140 See CAT Rules of Procedures, above n 17, Part XX, Rules 91–​101. 141 Nowak, above n 92, 517, and CAT Rules of Procedure, above n 17, Rule 101. 142 Nowak, above n 92, 511.

498  Andrew Byrnes much use will be made of it.143 It may be that in particularly egregious cases some States parties may be prepared to bring complaints against others.144 However, as it is possible to initiate an equally effective investigation under Article 20 without the adverse political consequences that might flow from an inter-​state complaint, it seems that the inter-​state procedure is highly unlikely to be used, despite the number of states that have accepted the Committee's competence under Article 21.

(e)  Reference to arbitration and judicial determination (Article 30) Article 30 of the Convention provides another route whereby one State party may pursue a dispute with another State party about the interpretation or application of the Convention. A State may opt out of the procedure when it becomes party to the Convention, and as of 11 October 2019 some twenty-​five States parties had done so. In the late 1990s against the background of the Pinochet extradition proceedings in the United Kingdom, Chile raised the possibility of taking a dispute with Spain (over which of the two states was entitled to try the dictator) to international arbitration and ultimately to the International Court of Justice (ICJ) using Article 30,145 but this did not happen. Belgium relied on this procedure in the case it brought against Senegal before the ICJ in relation to Hissène Habré, the former Chadian dictator who had ended up in Senegal. Belgium argued that the ICJ had jurisdiction over the case on the basis, inter alia, of Article 30 (which bound both Senegal and Belgium). A majority of the Court held that the criteria laid down in the provision had been satisfied and went on to hold that Senegal was in violation of a number of its obligations under the Convention.146

(f)  Individual complaints (Article 22) i. The procedure Article 22 establishes an individual complaints procedure, permitting the Committee to consider communications from individuals ‘who claim to be victims of a violation by a State Party of the provisions of the Convention’.147 The procedure is an optional 143 See generally S Leckie, ‘The Inter-​State Complaint Procedure in International Human Rights Law: Hopeful Prospects or Wishful Thinking?’ (1988) 10 Human Rights Quarterly 249. In fact, 2018 saw the first use of such a procedure under the UN human rights treaties in cases brought by Qatar against Saudi Arabia and the United Arab Emirates and by Palestine against Israel under the Racial Discrimination Convention: see D Keane, ‘ICERD and Palestine’s Inter-​State Complaint’, EJIL Talk!, 30 April 2018, https://​www.ejiltalk.org/​icerd-​and-​palestines-​inter-​ state-​complaint/​. 144 Ibid,  271–​6. 145 ‘Chile Seeks Arbitration on Pinochet case’, BBC News, 23 April 1999, online, available at: http://​news.bbc. co.uk/​2/​hi/​americas/​327164.stm. 146 International Court of Justice, Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) [2012] ICJ Rep 422, paras 44–​63. 147 Article 22(1). See generally F De Weck, Non-​refoulement under the European Convention on Human Rights and the UN Convention against Torture: The Assessment of Individual Complaints by the European Court of Human Rights under Article 3 ECHR and the United Nations Committee against Torture under Article 3 CAT (Brill, 2016),

The Committee against Torture  499 one and only those states making a declaration recognizing the competence of the Committee to consider such communications are bound by the procedure.148 Five ratifications were necessary before the individual communications procedure could enter into force, and it did so on 26 June 1987. As of 11 October 2019, sixty-​seven States parties had made declarations accepting the competence of the Committee to examine individual complaints.149 The procedure is modelled on the individual communications procedure contained in the Optional Protocol150 to the ICCPR and the rules of procedure adopted by the Committee.151 Once a communication is received, it is scrutinized by the Committee Rapporteur on new communications and interim measures, a position first created in 2002,152 to verify whether it is prima facie admissible, and sent to the State party concerned requesting its response, normally on both admissibility and the merits. The conditions of admissibility are laid down in Article 22 of the Convention and amplified in the rules.153 Once a communication has been declared admissible, the Committee considers the merits of the complaint, having invited both the individual and the State party concerned to submit material to it and to comment on each other's submissions. The final outcome is the adoption of a decision by the Committee: formulated as a quasi-​judicial decision, this sets out the contentions of the parties, the Committee's findings of fact and conclusions of law, and, where it finds a violation, recommendations to the State party as to the steps it should take to remedy that violation. While these views are not formally binding on the State party as a matter of international law,154 they are nevertheless of considerable importance, and possess a status similar to the views adopted by the Human Rights Committee.155 The case load of the Committee under Article 22 constitutes a significant part of the Committee’s overall workload. While only eighty-​one cases were registered in the 79–​82; Nowak, above n 92, 517–​24; Burgers and Danelius, above n 1, 166–​7; Ingelse, above n 2, Chap 7; Nowak and McArthur, above n 1, 719–​97. 148 The Committee has held that such declarations enter into force immediately upon deposit: N Z v Kazakhstan, Comm No 495/​2012, para 12.3 (2015). 149 Multilateral treaties, above n 1. Of those all but nine states had also accepted the inter-​state procedure under Article 21. These were Azerbaijan, Bosnia and-​Herzegovina, Brazil, Burundi, Guatemala, Mexico, Morocco, Seychelles, and Sri Lanka. 150 999 UNTS 302. 151 See CAT Rules of Procedure, above n 17, Part XXI, Rules 102–​21. 152 Terms of reference at A/​57/​44, Annex VIII (2002). 153 The communication must not be anonymous, it must emanate from an individual subject to the jurisdiction of a State party which has accepted the competence of the Committee, it must be submitted by the individual, a relative or designated representative or by others who can justify their submission of a complaint on behalf of the victim, must not be an abuse of the right to submit a communication nor incompatible with the provisions of the Convention, the same matter must not have been examined under another procedure of international investigation or settlement, and local remedies have been exhausted where to do so is reasonable and likely to be effective. Article 22 (5); CAT Rules of Procedure, above n 17, Rule 113. 154 De Weck, above n 147, 88–​90; A Byrnes and J Connors, ‘Enforcing the Human Rights of Women:  A Complaints Procedure for the Convention on the Elimination of All Forms of Discrimination Against Women?’ (1996) 21(3) Brooklyn Journal of International Law 679, 766–​7. 155 G Ulfstein, ‘Individual Complaints’ in H Keller and G Ulfstein (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (Oxford University Press, 2012) 73, 92–​103; A Byrnes, ‘An Effective Individual Complaint Mechanism in an International Human Rights Context’ in A Bayefsky (ed), On the Future of the UN Human Rights Treaty System (Kluwer, 2000) 139.

500  Andrew Byrnes period 1988–​1997, by May 2007, a total of 316 complaints with respect to twenty-​five countries had been registered.156 By late 2018, the total had risen to 885 individual complaints against thirty-​six States parties.157 Of these, 265 complaints had been discontinued and 104 had been found inadmissible, while 160 were still pending. The Committee had adopted final decisions on the merits in 365 cases, finding violations in 143 (39 per cent of cases proceeding to the merits, or 32 per cent of those cases on which a merits or admissibility decision was adopted). Most cases have been brought against a small number of countries, mainly Western European countries with reasonably good, although not unblemished, records in relation to the prevention and punishment of torture.158 The cases dealt disposed of by the Committee in 2018 give an indication of the nature and distribution of the communications case load.159 In its three sessions, the Committee concluded its consideration of forty-​one cases against thirteen States parties, whether by discontinuing them, declaring them inadmissible, or ruling on the merits. Of these, thirty-​six had been lodged against eight Western States parties. Only a minority of these cases have alleged torture or other ill-​treatment by the respondent country; most have involved Article 3 claims, by which persons have sought to prevent their deportation or expulsion from the state concerned to another country, where they fear that they will be subjected to torture. The destination countries have included both States parties to the Convention (some of which have accepted Article 22, others of which have not), and non-​States parties. By a paradoxical twist, therefore, some of the states with reasonably good records have found themselves the target of many communications, whereas states that appear to practise torture have avoided those often by simply failing to recognize the right of individual petition. ii. The Committee's general approach: procedural matters The Committee has been reasonably strict in its application of the traditional admissibility criteria. It has insisted on proper adherence to the standing requirements,160 the bar on the consideration of a communication previously considered or simultaneously under consideration by another international adjudicatory body,161 and the requirement that the victim exhaust local remedies.162 Its approach in relation to the question 156 A/​62/​44, para 70 (2007). 157 Statement by Mr. Jens Modvig, Chairperson Committee against Torture, at the 73rd session of the General Assembly, New York, 15 October 2018. The total was 932 by mid-​2019: A/​74/​44, para 56 (2019). 158 The latest detailed statistics available on the OHCHR website (as of March 2019) represent the position as of 15 August 2015. These figures indicated Switzerland (168), Sweden (135), Canada (124), Australia (56), France (34), Denmark (33), and Netherlands (21) were the respondents to the largest numbers of complaints. The only other countries with more than ten complaints lodged against them at that time were Finland (12), Kazakhstan (12), Morocco (12), Spain (11), Burundi (11) and Tunisia (10). 159 A/​71/​44, paras 65–​76 (2016). 160 Rule 113(a). See B M’B v Tunisia, Comm No 14/​1994, A/​50/​44, at 70 (insufficient authority shown to lodge complaint on behalf of victim); cp. Comisión Española de Ayuda al Refugiado v Spain, Comm No 23/​1995, A/​51/​44, at 55. See also Mohamed v Greece, Comm No 40/​1996, A/​52/​44, at 95, para 11.3 (no threat of deportation). 161 See, eg, W J v Austria, Comm No 5/​1990, A/​46/​46, at 73 (1991); X v Canada, A/​51/​44, at 63; A H v Azerbaijan, Comm No 247/​2004, A/​61/​44, at 205 (2006). 162 See, eg, M A v Canada, Comm No 22/​1995, A/​50/​44, at 73; Le Gayic v France, Comm No 46/​1996, A/​52/​44, at 100; V V v Canada, Comm No 47/​196, A/​53/​44, at 132: and Akhindenor v Canada, Comm No 67/​1997, A/​54/​44, Annex B.3. Rule 115(9) requires a State party which claims non-​exhaustion of local remedies to give details of the

The Committee against Torture  501 of whether the Convention has any application to acts which took place before the entry into force for a State party appears to have been inconsistent. Its early decisions held to a strict application of that rule, a view shared by a majority of the International Court of Justice in the Habré case.163 However, it also appears to have found violations in relation to acts which took place before the relevant entry into force, without adverting to that matter or considering whether there was some continuing violation that might satisfy the ratione temporis criterion.164 In General comment No 4 the Committee stated that it would consider such communications ‘if the effects of those alleged violations continued after the State party’s declaration, and if such effects may constitute in themselves a violation of the Convention.’165 i) Interim measures The Committee has taken the view that it has the implied power to request the state concerned to take interim measures to avoid 'possible irreparable damage to the person or person(s) who claim to be the victim(s) of the alleged violation’.166 The Committee has frequently and most often used this power in Article 3 cases, requesting a State party which was about to deport or expel a person not to do so while the communication was before the Committee. The power is generally exercised by the Rapporteur for new communications and interim measures. The criteria applied for the granting a request for interim measures are that the complaint satisfies the basic admissibility criteria; the requirement of exhaustion of domestic remedies may be dispensed with if the only available remedies are without suspensive effect (in the case of an Article 3 claim).167 Not all states have accepted the existence of this power168 and some states have also expressed concern that the procedure may be abused by asylum-​seekers in order to delay their expulsion and have criticized the Committee for excessive use of the power: the Committee has granted such requests in 70 per cent of its non-​refoulement applications.169 Nonetheless, in most cases states have acceded to the Committee’s

remedies available. Under Rule 116(2) the Committee may reopen a case previously declared inadmissible if relevant circumstances have changed (eg, if local remedies have subsequently been exhausted). See, eg, IUP v Spain, Comm No 6/​1990 (declared inadmissible due to non-​exhaustion in 1991 (A/​47/​44, at 81), but reconsidered on the merits in 1995 (A/​50/​44, at 62)). 163 International Court of Justice, Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment of 20 July 2012, paras 100–​2 (majority judgment held that Senegal’s obligations under the Convention did not cover acts that had occurred before the entry into force of the Convention for Senegal). 164 See the Separate Opinion of Judge Cançado Trindade in Belgium v Senegal, paras 160–​2, referring to Ltaief v Tunisia, Comm No 189/​2001 (2003) and the Habré case itself, Guengueng v Senegal, Comm No 181/​2001 (2006). As the majority of the ICJ pointed out, neither the State party nor the Committee appears to have raised the admissibility issue: para 101. 165 CAT/​C/​GC/​4, para 32 (citing N K v Kazakhstan, Comm. No 495/​2012) (failure to carry out an investigation into acts committed before State accepted article 22 that continued after its acceptance admissible as continuing failures were themselves violations of the Convention). 166 Rules of Procedure, Rule 114(1). See De Weck, above n 147, 82–​8; Nowak and McArthur, above n 1, 790–​3. 167 A/​62/​44, para 68 (2007). 168 See http://​www.ohchr.org/​EN/​HRBodies/​CAT/​Pages/​Submissions2017.aspx. 169 De Weck, above n 147, 83. In its 61st, 62nd, and 63rd sessions (2017–​2018), the Committee requested interim measures in twenty-​eight out of forty-​three cases (65 per cent): A/​73/​44, para 60 (2018). In the same period it found violations of Article 22 by Australia and Canada for their failure to respect the Committee’s request for

502  Andrew Byrnes requests for interim measures,170 with a small number of cases in which the state did not comply with a request. The Committee has held that a State party’s acceptance of Article 22 involves an obligation not to frustrate the right of an individual to bring a complaint to the Committee, to cooperate with the Committee in the investigation of the complaint, and to respond to the decision of the Committee. Accordingly, the Committee has held that, where it has requested interim measures of non-​removal, a state’s removal of a person from its jurisdiction while the complaint is being considered is inconsistent with Article 22 (as well as possibly violating the substance of the Article 3 right), since it frustrates the right of a person to seek relief from the Committee.171 This position, similar to that adopted by the Human Rights Committee, is contested and not conceded by all states.172 A person must also be given sufficient time before removal in order to lodge a domestic or international complaint. The Convention provides that CAT is to take into account all information made available to it by or on behalf of the individual and State party concerned.173 By contrast the Optional Protocol to the ICCPR provides that the Human Rights Committee shall take into account only 'written' information made available to it.174 The word 'written' was dropped in the course of the drafting of the Torture Convention and in theory it is open to the CAT, in contrast to other treaty bodies, to hold oral hearings.175 While this power is reflected in its rules of procedure176 and there have been a number of requests for such hearings, the Committee appears to have held such a hearing on only one occasion.177 Although there might be some advantages in such a procedure, the additional time and resources it would require make it unlikely to be adopted frequently; the challenge for the Committee will continue to be how to assess disputed facts and interpretations of them on the basis of written materials before it.

interim measures (Comms No. 488/​2012 and 614/​2014). In the period from mid-​2018 to mid-​2019 the Committee granted 33 of 53 applications (62 per cent of cases): A/​74/​44, para 55 (2019). 170 For example, in the three-​session period covered by the Committee’s 2016 report, sixty-​eight requests were made for interim measures, of which fifty were granted: A/​71/​44, para 64 (2016). De Weck notes that as of the end of 2015, States parties had refused an interim measures request from the Committee in only fifteen cases. Ibid. 171 See General comment No 4, paras 36-​37, as well as Brada v France, Comm No 195/​2002, A/​60/​44, Annex VII.A, at 127 (2005); Dar v Norway, Comm No 249/​2004, A/​62/​44, at 177, para 6.1 (2007). See also Pelit v Azerbaijan, Comm No 281/​2005, A/​62/​44, para 10.2 (2007); D I S v Hungary, Comm No 56/​2015, CAT/​C/​56/​D/​ 671/​2015, paras 11–​12 (2016); R S et al v Switzerland, Comm No 482/​2011 (2015), X v Russian Federation, Comm No 542/​2013 (2015); and Tursunov v Kazakhstan, Comm No 538/​2013 (2015). One member (and former Secretary of the Committee) has taken a different view: see P S B and T K v Canada, Comm No 505/​2012, CAT/​C/​55/​D/​505/​ 2012, Appendix (individual opinion of Mr Alessio Bruni). 172 Ulfstein, above n 155, at 100–​3; Nowak and McArthur, above n 1, at 791–​3. See also http://​www.ohchr.org/​ EN/​HRBodies/​CAT/​Pages/​Submissions2017.aspx. 173 Article 22(4). 174 Optional Protocol, Article 5(1). 175 Tardu, above n 104, 317; Nowak, above n 92, 532; Burgers and Danelius, above n 1, at 167. 176 Rule 117(4) provides that the Committee may invite the author and the State party to be present at closed meetings of the Committee in order to provide clarifications or to answer questions. 177 De Weck, above n 147, 81. The case was Abdussamatov and 28 others v Kazakhstan, Comm No 444/​2010 (2012).

The Committee against Torture  503 ii) Compliance with and follow-​up of decisions in individual cases Finally, the Committee, while recognising that as a formal matter its decisions are not binding under international law, nevertheless expects that states will provide remedies when it finds a violation. In May 2002 the Committee appointed a Rapporteur for follow-​up of decisions on individual complaints, a practice adopted earlier by the Human Rights Committee. In reports prepared for the Committee, the Rapporteur has provided detailed breakdowns of state responses to adverse decisions, and the additional measures that the Rapporteur has taken where state responses have shown that there has not yet been compliance with the Committee’s recommendations.178 There is a reasonable level of compliance with Committee decisions, though many of the more recent cases still involve continuing follow-​up without timely or clear responses from some States parties as to the steps they have taken. While the response of some countries (eg, Sweden) has been generally to accept the Committee’s decision, others (such as Canada) have on occasion rejected the Committee’s findings. iii) Cases invoking Article 3 The Committee first upheld a claim under Article 3179 in early 1994;180 since then it has been deluged with Article 3 cases, effectively transforming it into a human rights review tribunal for unsuccessful asylum claims. General comment No 1 (1997) summarized the Committee’s approach to Article 3 cases. However, the Committee replaced that document with General comment No 4 in 2017, which provided a much more detailed elaboration of its views on the obligations under and operation of Article 3 and Article 22.181 i. The test and the standard of proof applied To succeed on an Article 3 claim the complainant must show that there are ‘substantial grounds for believing that [the complainant] would be in danger of being subjected to torture’. Article 3 protects a person against return not only to a country where he or she faces a real risk of being tortured,182 but also to a country from which he or she might then be removed to a country where such a risk exists.183 The Committee has held that the relevant time for assessing whether substantial grounds exists is when the matter is considered and decided by the Committee.184 The protection of the article is not limited to a threat relating to actions which took place in the country; it also extends to acts committed in the host country, so that the substantial grounds can arise as the

178 These reports can be found on the OHCHR website:  https://​www.ohchr.org/​EN/​HRBodies/​CAT/​Pages/​ FUReports.aspx. 179 See generally Nowak and McArthur, above n 1, at 126–​228 and De Weck, above n 111. 180 Mutombo v Switzerland, A/​49/​44, at 45 (1994). 181 See General Comment No 4, CAT/​C/​GC/​4 (2017). 182 Ratification of the Convention by a state is not of itself a sufficient guarantee that the person will not be tortured if returned: Alan v Switzerland, Comm No 21/​1995, A/​51/​44, at 72, para 11.3. 183 Korban v Sweden, Comm No 88/​1997, A/​54/​44, Annex VII (return to Jordan posed a real risk of return to Iraq, where author faced real risk of torture); General Comment No 4, para 12 (previously General comment No 1, para 2). 184 Aemi v Switzerland, Comm No 34/​1995, A/​52/​44, at 71; X, Y and Z v Switzerland, Comm No 61/​1996, A/​53/​ 44, at 78.

504  Andrew Byrnes result of political activism in the host state (rather similar to the concept of a refugee sur place).185 The Committee’s task is to carry out an individualized examination of the alleged victim's circumstances in the light of the general human rights situation in the country to which (s)he is to be returned. It pays close attention to the political activities of the victim in the country, whether he or she has been persecuted, imprisoned or tortured, and whether he or she is being targeted individually or as a member of an identifiable group in the country, as well as many other factors.186 While ‘the existence of a consistent pattern of gross, flagrant or mass violations of human rights’ might by itself suggest such a ‘real risk’, the Committee has held that it should take into account such a pattern, but that its existence (or absence) could not by itself be conclusive—​though it stated in General comment No 4 that the existence of such a pattern is ‘crucial’ to the determination whether there are substantial grounds.187 The applicant must prove that they would be personally at risk.188 Thus, there must be a ‘foreseeable, personal, present and real’ risk that the person will be tortured on his return.189 The general pattern of human rights is relevant to that assessment. In its assessment of whether the victim has established the risk of torture in the destination country, the Committee has been demanding but not excessively so, in view of the humanitarian purpose of the Convention and the gravity of the consequences if the author is returned. It has held that ‘the burden of proof is upon the author of the communication, who must present an arguable case, that is, submit substantiated arguments showing that the danger of being subjected to torture is foreseeable, present, personal and real’.190 The risk must be shown to be based on 'grounds that go beyond mere theory or suspicion', but the risk does not have to meet the standard of being highly probable’.191 It has commented that ‘it is not necessary that all the facts invoked by the author should be proved; it is sufficient that the Committee should consider them to be sufficiently substantiated and reliable’.192 It has also indicated that it ‘takes into account’ the ‘the principle of the benefit of the doubt’ as appropriate.193 It also recognizes that on some issues author may not have access to relevant information while the state may have such access, in which case ‘the burden of proof is reversed’.194

185 Aemi v Switzerland, Comm No 34/​1995, A/​52/​44, at 71, paras 9.5 and 9.8. See also UNHCR Handbook, paras 94–​6, and CAT, General comment No 1, para 8(e). 186 General comment No 4, paras 29, 45, and 49 (see previously General comment No 1, para 8), in which the Committee sets out a number of factors that it considers relevant to the assessment of the risk. 187 General comment No. 4, para 43. 188 Aemi v Switzerland, Comm No. 34/​1995, A/​52/​44, at 71, para 9.4. 189 General comment No. 4, paras 11 and 45. 190 General comment No 4, para 38. Its statement of what is required at the admissibility stage (id at para 31) is less clear. 191 General comment No 1, para 6; Haydin v Sweden, Comm No 101/​1997, A/​54/​44, Annex VII.A.5 (1999). A similar formulation does not appear in General comment No 4. 192 This is less demanding than the standard which the United States considered was embodied by Article 3: ‘if it is more likely than not that he would be tortured’. Multilateral treaties, above n 1, ‘Declarations and reservations’, ‘United States of America’, para II(2). 193 General comment No 4, para 51. 194 Ibid, para 38.

The Committee against Torture  505 The Committee has drawn on a wide range of materials in assessing the situation in the destination country and the danger to the alleged victim. The Committee may, of course, consider any material submitted to it by either the author or the State party. In addition the Committee's rules of procedure provide that it may obtain ‘any document from United Nations bodies, specialised agencies, or other sources that may assist in the consideration of the complaint’.195 The Committee’s approach to the assessment of evidence reflects a sensitivity to the behaviour of survivors of torture and refugees, and in particular the effects of post-​ trauma stress syndrome.196 In response to State arguments that these delays and inconsistencies undermine the credibility of the complainant’s case, the Committee has responded that ‘complete accuracy is seldom to be expected by victims of torture [in their stories]’and, where the Committee believes that there are good grounds for believing that the person may have been tortured, it will make allowances for inconsistencies and disregard them where 'such inconsistencies . . . are not material and do not raise doubts about the general veracity of the author's claims’.197 The Committee has emphasized that its function is simply to consider whether a decision by the respondent State to deport or expel someone to another country would violate Article 3. Its mandate is to interpret Article 3 of the Torture Convention, and not similar or overlapping (though not identical) guarantees under the Refugee Convention or any other instrument.198 It is not an appellate tribunal from the asylum-​ determination procedures of the state (although it may at times look like it and be seen by petitioners as such), nor does it have the task of determining whether, under the law of that state, the victim has a right to asylum.199 While the Committee gives considerable weight to the findings of fact made by national bodies, it is not bound by these findings and has the power to make its own assessment of the facts.200 The Committee's published decisions give an impression of a fair and balanced evaluation of the documentary record, though this is difficult to assess fully without access to the complete record. The Committee has rejected the majority of Article 3 cases on the ground that the author has not made out a sufficiently strong case.201 The Committee’s Article 3 cases show a pattern of early success for complainants, followed by a steep decline in successful applications in the next decade, and then an upward 195 Rule 82(4). 196 See generally Q Dignam, ‘The Burden and the Proof: Torture and Testimony in the Determination of Refugee Status in Australia’ (1992) 4 International Journal of Refugee Law 343. 197 Kisoki v Sweden, Comm No 41/​1996, A/​51/​44, at 85, para 9.3. See also Khan v Canada¸ Comm No 15.\/​1994, A/​50/​44, at 46, para 12.3, and Alan v Switzerland, Comm No 21/​1995, A/​51/​44, at 72, para 11.3. See also General comment No 4, paras 42, 49(h), and (i). 198 W Suntinger, ‘The Principle of Non-​Refoulement: looking rather to Geneva than to Strasbourg?’ (1995) 49 Austrian Journal of Public International Law 203; U Kriebaum, ‘Prevention of Human Rights Violations’ (1997) 2 Austrian Review of International and European Law 155, at 187. Paez v Sweden, Comm No 39/​1996, A/​52/​44, at 86 (1997) (complainant’s exclusion from refugee status under Article 1F of the Refugee Convention not determinative of right to non-​refoulement under Article 3). See also Paez v Sweden, European Court of Human Rights, 30 October 1997. 199 Comisión Española de Ayuda al Refugiado v Spain, Comm No 23/​1995, A/​51/​44, at 55. 200 General comment No 4, para 50. See J Doerfel, ‘The Convention against Torture and the Protection of Refugees’ (2005) 24(2) Refugee Survey Quarterly 83, 91. 201 See, eg, X and Y v Netherlands, Comm No 31/​1995, A/​51/​44, at 66, paras 2.5 and 4.2 (1996).

506  Andrew Byrnes trend in the following period.202 From 1989 to 1998, thirteen out of forty-​three claims based on Article 3 succeeded; from 1999 to 2008 the rate of success plummeted to 16 out of 136, while from 2009 to April 2017, 47 out of 137 cases succeeded. The overall rate of success in Article 3 claims (76 out of 316 cases, roughly a quarter) compares with a success rate in non-​Article 3 cases of about 60 per cent (forty out of sixty-​four cases, of which eighteen were ruled inadmissible).203 ii. Contentious  issues The application of Article 3 to the acts of a State party outside its territory has been contentious. The issue has arisen in the context of concerns about the rendition of persons captured by armed forces or law enforcement agencies of a State party outside that state’s territory and then transferred to the custody of another state in circumstances where there is a real likelihood that the person will be subject to torture at the hands of the latter. This assumed particular prominence in relation to the practice of irregular or extraordinary renditions following 9/​11. The United States argued that Article 3 (and other obligations) did not apply outside its sovereign territory, although it later modified this view and accepted that the Convention applied to refoulement from any territory subject to the exercise of ‘governmental authority’ by the relevant State party. However, this still did not include the transfer of persons captured or detained in other states in armed conflict or in pursuit of the ‘war on terror’. The Committee has strongly affirmed its view that the territorial scope of Article 3 is broad, extending to all persons who are subject to the de jure or de facto control’ of a state; the obligation also extends to ‘territories under foreign military occupation and to any other territories over which a State party, though its agents operating outside its territory has a factual control and authority’.204 A second issue has been whether Article 3 applies where the torture that may be suffered on return would be inflicted by non-​state actors rather than by state officials.205 In G R B v Sweden206 the Committee held that possible maltreatment by the insurgent group Sendero Luminoso in Peru did not fall within the Convention’s definition of torture. In Elmi v Australia the complainant argued that, if he were deported to Somalia, he would face a real risk of torture by Somalian militia groups. The Committee found that, as Somalia did not have a recognized government at the time, and the group in question was exercising ‘certain prerogatives that are comparable to those normally exercised by legitimate governments’, it thus fell within the definition of ‘public official or persons acting in official capacity’ within Article 1.207 The Committee has rejected Article 3 claims where the non-​state actor was not exercising such governmental power, or if 202 Based on ‘Jurisprudence–​ CAT–​ Complete list of decisions’, bayefsky.com (information current as of April 2017). 203 A/​61/​44, para 63 (2006) and bayefsky.com, above n 202. 204 General comment No 2, para 7. See also General comment No 4, para 10. 205 De Weck, above n 111, at 206–​14. 206 Comm No 83/​1997, A/​53/​44, at 96, para 6.5 (1998). 207 Comm No 120/​98, A/​54/​44, Annex A.11, para 6.5 (1999). But see HM H I v Australia, Comm No 177/​2001, para 6.4 (2002) (holding that by this time Somalia had a transitional government).

The Committee against Torture  507 it is possible to return a person to a part of the country where that power is not being exercised. More recently the Committee has adopted a broader approach to the concept of ‘acquiescence’ in the definition of ‘torture’ in Article 1, and this has flowed through into its Article 3 analysis, especially in cases involving violence against women,208 though it is not limited to such cases.209 Accordingly, an Article 3 claim can be made out in relation to private acts of violence where the ‘government failed to provide adequate protection against severe acts of violence’,210 though there appears to be some inconsistency in the Committee’s application of its broad concept of ‘acquiescence’.211 In General comment No 4 the Committee states that States parties ‘should refrain’ from returning persons to a state where they may be subject to torture or ill treatment ‘at the hands of non-​State entities including groups that are unlawfully exercising actions that inflict severe pain or suffering for purposes prohibited by the Convention, and over which the receiving State has no or only partial de facto control, or whose acts it is unable to prevent or whose impunity it is unable to counter.’212 A third issue has been whether Article 16 provides protection against refoulement to face cruel, inhuman or degrading treatment, even though the provision does not expressly stipulate this.213 Most commentators are of the view that, although the manner in which an expulsion is carried out may involve a violation, the fact of returning a person to a situation where they will suffer ‘merely’ ill treatment does not violate Article 16, and there is no case in which the Committee has found such a violation. However, the Committee in its General comment No 4 states that, because of the unclear definitional threshold between torture and other cruel, inhuman, or degrading treatment or punishment, a State party must consider ‘whether the nature of other forms of ill treatment that a person facing deportation is at risk of experiencing could likely change so as to constitute torture before making an assessment on each case relating to the principle of ‘non-​refoulement’.214 In any case, Article 16(2) makes clear that protections under other applicable international instruments will not be affected. Finally, the Committee has addressed the question of diplomatic assurances in the context of Article 3 proceedings. The Committee has not ruled out the possibility that 208 Njamba and Balikosa v Sweden, Comm No 322/​207 (2010); Bakatau-​Bia v Sweden, Comm No 379/​2009, paras 10.6–​10.7 (2011); EK.W. v Finland, Comm No 490/​2012 (2015) (all involving return to DRC). 209 See, eg, Dewage v Australia, Comm No 387/​2009, para 10.9 (2013) and generally De Weck, above n 111, 206–​14. 210 De Weck, above n 111, 214. 211 See Güclü v Sweden, Comm No 349/​2008, para 5.2 (2010); Aytulum v Sweden, Comm No 373/​2009, para 6.2 (2010) (Article 3 not applicable to likely torture by the PKK on return to Turkey, even though government not in a position to prevent it; however, claim upheld in relation to likely torture by government). 212 General comment No 4, para 30. 213 See, eg, S Taylor, ‘Australia's Implementation of its Non-​Refoulement Obligations under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights’ (1994) 17 UNSW Law Journal 432, 442; De Weck, above n 111, 194–​5. But see G R B v Sweden, Comm No 83/​1997, A/​53/​44, 96, para 6.7, in which the Committee did not dismiss out of hand such an argument but found that the guarantee against ill treatment would not be violated, and A A C v Sweden, Comm No 227/​2003, A/​62/​44, 163, para 7.3 (aggravation of condition of person’s physical or mental health by deportation ‘is generally insufficient, in the absence of additional factors, to amount to degrading treatment in violation of article 16’). 214 General comment No 4, para 16 (2017).

508  Andrew Byrnes in certain circumstances diplomatic assurances or undertakings might be sufficient to reduce or eliminate the risk that a person will be tortured if returned to a country and would thus be consistent with Article 3.215 Nonetheless, it has found violations where it considered the assurances involved were not adequate,216 and it appears to be becoming increasingly sceptical of their use. In the reporting procedure the Committee has commended some states for eschewing reliance on diplomatic assurances,217 and expressed concern at the reliance by some states on such assurances and recommended that they discontinue the practice.218 In other cases it has stated that ‘under no circumstances can [states] resort to diplomatic assurances as a safeguard against torture or ill-​treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or ill treatment upon return’.219 In General comment No 4 the Committee stated that such assurances ‘should not be used as a loophole to undermine the principle of non-​refoulement, where there are substantial grounds for believing that he/​she would be in danger of being subjected to torture in that State’.220 The Committee thus appears to be prepared to accept diplomatic assurances only if the assurances in a specific case are ‘of a nature to eliminate all reasonable doubt that the complainant would be subjected to torture upon his return’. Here the existence of monitoring procedures ‘that would guarantee their effectiveness’ seems to be crucial.221 iii. Remedy for potential or actual violation of Article 3 Generally, the remedy against a threatened or actual violation of Article 3 would be for the State party to grant the victim asylum, and it appears that this has been done in a number of cases.222 However, the Committee noted in the Aemi case223 that a finding of a violation of Article 3 does not ipso facto create a right to be granted asylum. However, the sending state still has an obligation to adopt either legal solutions (the Committee gives the example ‘of admitting an applicant temporarily’) or political ones (eg, ‘action to find a third State willing to admit the applicant to its territory and undertaking in its turn not to return or expel him’).224 Where the person has already been returned, there 215 In 2006 the then Special Rapporteur on Torture, Manfred Nowak, was sceptical, stating that ‘diplomatic assurances with regard to torture are nothing but attempts to circumvent the absolute prohibition of torture and refoulement’: E/​CN.4/​2006/​6, para  32. 216 See Agisa v Sweden, Comm No 233/​2003, A/​60/​44, at 197; Pelit v Azerbaijan, Comm No 281/​2005, A/​62/​44, at 266, para 11 (2007) (after receiving diplomatic assurances, Azerbaijan deported Turkish national of Kurdish origin to Turkey contrary to request from the Committee not to do so). 217 CAT/​DZA/​CO/​3, para 3(e) (2008) (Algeria). 218 CAT/​C/​RUS/​CO/​5, para 17 (2012) (Russian Federation). 219 CAT/​C/​AUS/​CO/​3 (2008). See also CAT/​C/​MAR/​CO/​4 (2011) (Morocco), CAT/​C/​ARM/​CO/​3 (2012) (Armenia), and A/​61/​44, para 37(21) (2006) (USA). 220 General comment No 4, para 20. The draft had stated that diplomatic assurances ‘are contrary to the principle of ‘non-​refoulement’ (Draft General Comment No 1 (2017), para 20 (2017)), a formulation to which a number of States explicitly objected: www.ohchr.org/​EN/​HRBodies/​CAT/​Pages/​Submissions2017.aspx. 221 Boily v Canada, Comm No 327/​2007, para 14.4 (2011). 222 See A/​61/​44, 86–​123 (2006) and also Dar v Norway, where Norway had facilitated the complainant’s return from Pakistan and provided him with a three-​year residence permit, which the Committee considered to be an adequate remedy. 223 Comm No 34/​1995, para 11(1997). 224 Ibid.

The Committee against Torture  509 may be little that can be done, but in some cases the person’s return has been secured or other guarantees obtained from the receiving state.225

13.4  Interpreting the convention: progress and challenges (a) Reservations The problem of reservations has not plagued the Torture Convention to the extent it has some other UN human rights treaties.226 Nevertheless, some reservations and declarations have been controversial. While the Committee has encouraged states to remove reservations which limit their full acceptance of the Convention,227 it is other States parties which have played an important role in objecting to incompatible reservations. Among the reservations which have been contentious are the early reservation of the German Democratic Republic that it would contribute only to the costs incurred by the Committee in carrying out its work under the reporting procedure, since it had not accepted the competence of the Committee under any of the other procedures,228 and the reservation of Chile seeking to preserve a defence of superior orders under its domestic law. Each of these was met by a barrage of objections from other States parties (seventeen and twenty objections respectively), as well as being criticized by the Committee in the case of Chile,229 and both were withdrawn in fairly short order. Other reservations which have given rise to concern are those entered by countries that purport to limit its acceptance of some obligations under the Convention by reference to national constitutions or other national law, or Islamic law.230 These have met with objections from other states and the Committee. For example, reservations by Botswana, the United States and Fiji purporting to define the concept of torture and cruel, inhuman or degrading treatment punishment by reference to the analogous constitutional guarantees have been objected to by a number of States parties. The declaration of the United Arab Emirates that the reference to ‘lawful sanctions’

225 Kalinichenko v Morocco, Comm No 428/​2010, para 17 (2012). 226 See, generally, L Lijnzaad, Reservations to UN-​Human Rights Treaties: Ratify and Ruin? (Springer, 1995) 371–​ 94; B Sørensen and P Dalton, ‘The Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment—​Limitations, Restrictions and Reservations’ in I Ziemele (ed), Reservations to Human Rights Treaties and the Vienna Convention Regime: Conflict, Harmony or Reconciliation (Martinus Nijhof, 2004)  79–​94. 227 See HRI/​MC/​2005, 70–​5 and HRI/​MC/​2007/​5,  16–​17. 228 See G Gornig and M Ney, ‘Die Erklärungen der DDR zur UN-​Anti-​Folterkonvention aus völkerrechtlicher Sicht’ (1988) 43 Juristenzeitung 1048, M Coccia, ‘A Controversial Declaration on the U.N. Convention Against Torture’ (1990) 1 European Journal of International Law 314; M Mohr, ‘The German Democratic Republic's Declaration on the Anti-​Torture Convention and its Consequences: An Attempt at Evaluation’ (1990) 1 European Journal of International Law 314; and Lijnzaad, above n 226, 378–​84. 229 A/​45/​44, para 349 (1990). 230 Multilateral treaties, above n 1. See generally D D Stewart, ‘The Torture Convention and the Reception of International Criminal Law within the United States’ (1991) 15 Nova Law Review 449.

510  Andrew Byrnes in Article 1 was a reference to lawfulness under domestic law met with objections, as did a ‘declaration’ by Bangladesh that it would apply Article 14(1) ‘in consonance with the existing laws and legislation in the country’, which a number of states characterized as an impermissible reservation.231 Neither state has yet appeared before the Committee.232 A reservation entered by Pakistan on 23 June 2010 that it would apply various articles only ‘to the extent that they are not repugnant to the Provisions of the Constitution of Pakistan and the Sharia laws’, met with objections from more than twenty States parties; Pakistan withdrew the objection on 20 September 2011.233 A  similar reservation by Qatar that purported to exclude any obligations that might arise from ‘any interpretation of the provisions of the Convention that is incompatible with the precepts of Islamic law and the Islamic religion’, drew objections from a number of States parties, which considered it to be incompatible with the object and purpose of the Convention.234 When the Committee reviewed the initial report of Qatar, it expressed its concern that the broad and vague nature of the reservation raised doubts about the state’s overall implementation of the Convention and recommended that Qatar re-​examine its reservation with a view to withdrawing it.235 Qatar modified the reservation in March 2012, but still maintained ‘a limited general reservation within the framework of Articles 1 and 16 of the Convention’. When the Committee reviewed Qatar’s second report, it urged the state to withdraw this remaining reservation, expressing concern that ‘the general and imprecise nature of the reservation allows courts and governmental and other officials to negate many of the Convention’s provisions and this raises serious concerns as to its compatibility with the object and purpose of the Convention’.236 The reservation remains in place. The Committee has also urged states to withdraw reservations that have not been objected to by other States parties. For example, it has called on New Zealand, so far without success, to withdraw its reservation that torture victims’ right to compensation is ‘only at the discretion of the Attorney-​General’, on the ground that it is ‘incompatible with the letter and spirit of the Convention, as well as with the State party’s obligation to ensure the rights of victims of torture to fair and adequate compensation, including the means for as full a rehabilitation as possible’.237

231 Finland, France, Germany, Spain, Sweden, and Netherlands. A similar ‘interpretive declaration’ by Thailand drew only one objection (from Sweden), perhaps because it evinced an intention to revise Thai law to be ‘more consistent’ with the Convention ‘at the earliest opportunity’. However, the Committee called on Thailand to withdraw the reservation: CAT/​C/​THA/​CO/​1, para 8 (2014). 232 The UAE submitted its initial report (due in 2001) in mid-​2018 but will not appear before the Committee until mid-​2020, while Bangladesh submitted its initial report due in 1999 on 23 July 2019, a week before its review by the Committee: CAT/​C/​BGD/​CO/​1, para 2 (2019). 233 Multilateral treaties, above n 1. The objecting states were without exception WEOG States. 234 Denmark, Finland, France, Italy, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden, and the United Kingdom. 235 A/​61/​44, para 34(9) (2006). 236 CAT/​C/​QAT/​CO/​2, para 9 (2013). 237 CAT/​C/​NZL/​CO/​6, para 20 (2015), reiterating CAT/​C/​NZL/​CO/​5, para 14 (2009).

The Committee against Torture  511

(b)  Trends in interpretation by the Committee While a detailed consideration of the contribution of the Committee to the interpretation of the Convention is not possible here, a number of its major facets may be mentioned. The first is the expansive approach the Committee has increasingly taken to the material and personal scope of the Convention. The drafters of the Convention may have envisaged that its provisions would apply largely to the treatment of persons under the direct power and control of state officials—​whether in investigative or other forms of state custody, in prisons, or other institutions run by the state. However, the Convention’s definition of torture is not limited to acts committed by state officials: acts of private persons that are committed ‘at the instigation of ’ or ‘with the consent or acquiescence’ of ' a public official are also included, though it was likely anticipated that there would be a close physical or chain of command link between the official direction or tolerance and the acts of torture themselves. The Committee has read the concept of acquiescence broadly, in effect interpreting the Convention as imposing due diligence obligations on the state to prevent torture or other ill treatment by non-​state actors.238 A second feature of the Committee’s practice, especially since the mid-​1990s has been the attention it has given to gendered dimensions of torture and other ill treatment, especially violence against women.239 The Committee now regularly raises issues of gender and gender-​based violations with States parties, both those which occur in traditional custodial or detention settings, as well as forms of violence perpetrated by private actors which are acquiesced in by the state through failure to have adequate legal provisions or effective law enforcement procedures (eg, marital rape laws, domestic or family violence, and trafficking). The Committee has interpreted the Convention from women’s perspectives, for example, interpreting the concept of torture to include rape;240 characterizing private gender-​based violence that is not investigated and punished by a State as torture for the purposes of Article 3;241 recognizing, when assessing an Article 3 claim based on likelihood of sexual assault, the factors making women who have been sexually assaulted reluctant to reveal that information in an asylum application;242 and finding a violation of Article 15 in the making of life-​saving medical treatment for women suffering complications from illegal abortions conditional on their disclosing information on those performing abortions—​which was 238 General comment No 2, para 18. See also Dzemajl v Yugoslavia, Comm No 161/​2000, A/​58/​44, at 85 (2002). See the criticism of this approach by one State party: CAT/​C/​VAT/​CO/​1/​Add.1, para 20 (2015) (Holy See). 239 See A Byrnes, ‘The Convention against Torture’ in K Askin and D Koenig (eds), Women’s International Human Rights Law, vol 2 (Transational Press, 2000) 183; and A Edwards, Violence against Women under International Human Rights Law (Cambridge University Press, 2011), Chap 5. 240 See R Copelon, ‘Gender Violence as Torture: The Contribution of CAT General Comment No 2’ (2008) 11 New York City Law Review 229; F Gaer, ‘Rape as a Form of Torture: The Experience of the Committee against Torture’ (2012) 15 CUNY Law Review 1101; K Fortin, ‘Rape as Torture: An Evaluation of the Committee against Torture’s Attitude to Sexual Violence’ (2008) 4(3) Utrecht Law Review 145; A Edwards, ‘The Feminizing of Torture under International Human Rights Law’ (2006) 19 Leiden Journal of International Law 349, 367–​76. 241 See, eg, V L v Switzerland, Comm No 262/​2005, A/​62/​44, at 207, para 8.10 (2007) and A v Bosnia and Herzegovina, Comm No. 854/​2017, views of 22 August 2019, CAT/​C/​67/​D/​854/​2017. 242 V L v Switzerland, Comm No 262/​2005, A/​62/​44, para 8.8.

512  Andrew Byrnes then used in legal proceedings against the women or others.243 As noted above, the Committee has in effect interpreted ‘acquiescence’ as giving rise to a ‘due diligence’ obligation on the part of the state, as made clear in General comment No 2. In adopting such an approach, the Committee has come very close to interpreting the Convention obligations as similar in scope to the obligations assumed by States parties to the CEDAW Convention in relation to violence against women. A third dimension of the Committee’s practice has been its insistence on the extraterritorial operation of certain provisions of the Convention. Some States parties have argued that their obligations are limited to acts or omissions on their sovereign territory. However, the Committee has adopted the position that the provisions of the treaty which are expressed to apply to ‘territory under [a State party’s] jurisdiction’ (Articles 2, 5, 13 and 16) are not limited to the sovereign territory of a State party, but also extend to all areas ‘where the State Party exercises, directly or indirectly, in whole or in part, de jure or de facto effective control’, including over persons in detention, and also includes situations where a State party ‘exercises, directly or indirectly, de facto or de jure control over persons in detention’.244 The Committee has also adopted an expansive approach to the obligations under Article 14, which obliges a State party ‘to ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible’. Whether this obligation extends to acts of torture committed outside the State party in areas not under its de facto or de iure control by persons not connected with it (eg officials of another State), has been contentious.245 However, in General comment No 3, the Committee set out its view that ‘the application of article 14 is not limited to victims who were harmed in the territory of the State party or by or against nationals of the State party’. The implications of this position in relation to existing rules of state immunity is not clear. While the Committee appears at times to have inclined towards asserting that such immunity should be abrogated in civil cases,246 it has not unequivocally stated that position; General comment No 3 provides that ‘granting immunity in violation of international law . . . is in direct conflict with the obligation of providing redress to victims’.247 The balance of international and national judicial authority is against the position that the Convention or customary 243 A/​59/​44, paras 56(j) and 57(m) (2004) (Chile). 244 General comment No. 2, para 7. See also General comment No. 4, para 10. 245 A Byrnes, ‘Civil Remedies for Torture Committed Abroad: An Obligation Under the Convention Against Torture?’ in C Scott (ed), Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (Hart Publishing, 2001) 537, Nowak and McArthur, above n 1, 494–​502, and Jones v Saudi Arabia [2007] 1 AC 270 (UKHL). Contra, C Hall, ‘The Duty of States Parties under the Convention against Torture Procedures Permitting Victims to Recover Reparations for Torture Committed Abroad’ (2007) 18 European Journal of International Law 921. 246 See, eg, its recommendation to Canada that Canada ‘consider amending the State Immunity Act to remove obstacles to redress for all victims of torture’. CAT/​C/​CAN/​CO/​6, para 15 (2012). 247 General comment No 3, para 42 (2012) (emphasis added). In 2014 the Committee declared inadmissible a case in which an Australian court had refused to entertain a civil action against the former President of and other senior officials of the People’s Republic of China on the ground of State immunity; Z v Australia, Comm No 511/​ 2012, para 6.3 (2014). The case was Zhang v [Zhang] Zemin [sic] (2010) 243 FLR 299.

The Committee against Torture  513 international law permits or requires a State party to ignore existing immunities applicable to civil proceedings in cases of torture.248 The Committee has taken the view in relation to the Pinochet and Habré cases that the Convention permits states to prosecute former governmental officials who may have possessed immunity while in office,249 but has not taken an explicit position on the contested point of whether a serving senior government official enjoys immunity ratione personae in relation to torture.250

13.5  The Optional Protocol to the Convention and the Subcommittee on the Prevention of Torture The Subcommittee against Torture (SPT) was established by the Optional Protocol to the Convention (OPCAT), which was adopted by the General Assembly in 2002.251 The purpose of OPCAT is to ‘establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment’.252 Following the deposit of the twentieth ratification, OPCAT entered into force on 22 June 2006. As of 11 October 2019 there were ninety States parties.253 OPCAT operates at two levels. First, at the international level it has established the SPT. This body consisted initially of ten members elected by the States parties (eligible for re-​election once); its membership increased to twenty-​five in 2011, following the fiftieth ratification in 2009 (Article 5(1)). The Subcommittee’s role is to carry out visits 248 See Jurisdictional Immunities of the State (Germany v Italy, Greece Intervening) [2012] ICJ Rep 99; Jones v United Kingdom, European Court of Human Rights, App nos 34356/​06 40528/​06, judgment of 14 January 2014, especially at [206]–​[208]; Kazemi v Islamic Republic of Iran [2014] SCC 179, 210–​11 ([50]) and 244–​7 ([140]–​[148] (Le Bel J for the majority); contra Abella J, 272–​6, [214]–​[226]; Li v Zhou (2014) 310 ALR 66 [57]–​[78] (NSWCA, Basten JA); Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270 (UKHL). 249 See the Committee’s views expressed in its discussions with the UK government (CAT/​C/​SR.354, paras 39–​ 40, 46) and in its concluding observations on the United Kingdom’s third periodic report (CAT/​C/​SR.360, para 11), that Pinochet was covered by the Convention and that head of state immunity should not stand in the way of extradition proceedings relating to torture with the United Kingdom. The House of Lords eventually adopted a position consistent with that of the Committee, though did not cite the Committee’s views explicitly, despite the extensive discussion of the meaning of the Convention and reference to its drafting history: R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 1) [2001] 1 AC 61; (No3) [200] 1 AC 147. See generally C Ryngaert, ‘Universal Criminal Jurisdiction Over Torture: A State of Affairs after 20 Years UN Torture Convention’ (2005) 23 Netherlands Quarterly of Human Rights 571. 250 See International Court of Justice, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Rep 3. 251 GA Res 57/​199 of 18 December 2002, 2375 UNTS 237. Its full name is the Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture. On the history of the development of OPCAT, see Nowak and McArthur, above n 1, 881–​1192; Burgers and Danelius, above n 1, 24–​6; M Evans and R Morgan, Preventing Torture: A Study of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Oxford University Press, 1998), 109–​12; A Pennegård, ‘An Optional Protocol, Based on Prevention and Cooperation’ in B Dunér (ed), An End to Torture: Strategies for its Eradication (Zed Books, 1998) 39; and R Murray, E Steinerte, M Evans, and A de Wolf, The Optional Protocol to the UN Convention Against Torture (Oxford University Press, 2011) Chaps 1 and 2. See also E Steinerte, ‘The Changing Nature of the Relationship between the United Nations Subcommittee on Prevention of Torture and National Preventive Mechanisms: In Search for Equilibrium’ (2013) 31 Netherlands Quarterly of Human Rights, 132; P Schmidinger, ‘Visiting Mechanisms to Eradicate Torture: A Foucaultian Analysis’ (2010) 11 Human Rights Review 317. 252 Article 1. 253 Multilateral treaties, above n 1. Twelve other states had signed but not ratified the Optional Protocol.

514  Andrew Byrnes to places of detention or where persons are ‘deprived of their liberty’,254 to assist and advise national preventive mechanisms, to make recommendations to States parties in relation to national mechanisms,255 and to cooperate with other bodies and mechanisms working in the area.256 Members of the SPT are to have proven professional experience in the field of administration of justice—​especially criminal law, prison or police administration or in other relevant fields (Article 5(2)); the SPT is to be constituted ‘with due regard to equitable geographical representation’ and the different forms of civilization and legal systems (Article 5(3)), with consideration also to be given to ‘balanced gender representation’ (Article 5(4)).257 Based on the regional distribution of States parties, Western European States are overrepresented, while Asian Pacific States are underrepresented. In its early years women were underrepresented on the SPT; however, since 1 January 2017, the membership of the body has comprised thirteen men and twelve women. States agree to permit visits to their territory and to provide the SPT with unrestricted access to all places of detention, relevant information and persons they wish to interview (subject to a number of exceptions related to ‘urgent and compelling grounds’ of defence, security, public safety, natural disaster of serious disorder in the place to be visited) (Article 14). The report and recommendations made by the Subcommittee to the State party are confidential, unless the State party agrees to publication or itself publishes a part of the report, in which case the Subcommittee may publish some or all of the report (Article 16(2)). With the agreement of the Committee, the Subcommittee may also make a statement or publish its report on a State party which has failed to take steps to give effect to its recommendations (Article 16(4)). Secondly, at the national level, Article 17 requires States parties to ‘maintain, designate or establish’ within a year of entry into force of the Protocol for them, one or more independent national preventive mechanisms (NPMs) for the prevention of torture.258 These mechanisms are to be granted the minimum powers of regularly examining the treatment of persons detained, to make recommendations to the authorities with regard to improving the treatment, and conditions of persons detained, and to submit proposals or comment on legislation. States parties undertake to provide them with wide-​ranging access to relevant locations, information and persons.259 The SPT’s work ‘is guided by core principles of confidentiality, impartiality, non-​ selectivity, universality and objectivity’ (Article 2(3)), and the principle of cooperation between the SPT and States parties embodied in OPCAT (Article 2(4)).260 The normative framework for the SPT’s work is the UN Charter, as well as ‘norms of the United Nations concerning the treatment of people deprived of their liberty’ (Article 254 CAT/​C/​40/​2, Annex V (2008). 255 Murray et al, above n 251, at 108–​12. 256 CAT/​C/​40/​2, Annex VI (2008). 257 Murray et al, above n 251, 92–​5. 258 See E Steinerte, ‘The Jewel in the Crown and Its Three Guardians: Independence of National Preventive Mechanisms Under the Optional Protocol to the UN Torture Convention’ (2014) 14 Human Rights Law Review 1. 259 Murray et al, above n 251, Chap 6. 260 CAT/​C/​46/​2, para 5 (2011).

The Committee against Torture  515 2(2)). This includes the Convention but also other relevant binding and non-​binding standards. The SPT has met regularly for three one-​week sessions each year since 2007, with one of these overlapping with a session of the Committee. After undertaking three country visits per year in its early years, the SPT set itself a goal of eight visits each year, although resources and budgetary issues have made this a challenge.261 The SPT did achieve this target in 2016 and 2017, but managed only six visits in 2018.262 Even eight visits per year would allow it to visit each State party only about once a decade; this underlines the importance of the development of effective NPMs and of the SPT’s work in advising governments and NPMs on the establishment and operation of these national bodies. The Committee devised a system of categorizing its visits as SPT country visits, country follow-​up visits, NPM advisory visits and OPCAT advisory visits. However, given the limited number of visits it can conduct and the need to be flexible, it abandoned this classification in 2015, preferring to design visits as best suited to the circumstances of each visit. The visits involve the submission by the SPT to the State or NPM of a report with detailed recommendations; recipients are requested to respond within six months with details of the steps taken to implement those recommendations. Of the 78 visit reports sent to States and NPMs by the end of 2018, 41 had been made public; responses were overdue from seventeen States parties and six NPMs.263 The SPT has taken advantage of its large membership to assign Bureau members specific portfolios and to assign members to regional groups, whose role is to monitor and liaise with States and NPMs in those regions. Through a series of thematic working groups, the SPT has developed a number of documents which set out its approach to the nature of the prevention work that is the focus of its mandate,264 guidelines on NPMs,265 guidelines for visits to States parties,266 and an analytical assessment tool for those bodies.267 The SPT conceives of its prevention mandate broadly and as requiring it to go well beyond focusing on compliance with legal obligations to encompass the range of other social and political context-​specific factors that need to be taken into account if torture is to be prevented. Its annual reports explore thematic issues related to the implementation of its mandate. Some discussions are quite brief, while others are similar in scope and level of detail to the General comments adopted by the Committee. For example, the SPT has set out its views on the meaning of ‘places of detention’ in Article 4 of OPCAT (to which it gives a broad meaning going beyond ‘traditional places of detention’),268 the relationship between corruption and the prevention of torture and other ill treatment,269 LGBTQI persons and the prevention of torture 261 CAT/​C/​40/​2, paras 14–​17, 46–​56 (2008); CAT/​C/​66/​2, paras 35–​37 (2018). 262 CAT/​C/​66/​2, para 35 (2018). 263 CAT/​C/​66/​2, paras 14–​15 (2019). 264 CAT/​OP/​12/​6 (2010). 265 CAT/​OP/​12/​5 (2010). 266 CAT/​OP/​5 (2015). 267 CAT/​OP/​1/​Rev.1 (2016). 268 CAT/​C/​50/​2, para 67 (2013). See also Murray et al, above n 251, 69–​81 and Nowak and McArthur, above n 1,  931–​3. 269 CAT/​C/​52/​2, paras 72–​100 (2014).

516  Andrew Byrnes and ill treatment,270 pre-​trial detention,271 judicial review and due process in the prevention of torture,272 the detention of migrants and asylum-​seekers,273 legal aid, public defenders and the elimination of torture,274 indigenous justice and the prevention of torture,275and human rights education.276 SPT’s work with NPMs is a critical part of its work, with the potential to contribute significantly to the elimination of torture in places of detention. Much of this is done inter-​sessionally through a combination of visits and email communications. The SPT has published a compilation of the advice it has given in response to NPM requests; this addresses issues such as the substantive scope of OPCAT, issues of confidentiality, financial autonomy, cross-​border monitoring roles and relationships between NHRIs and NPMs.277 It has also pushed States parties that have not designated their NPMs by the applicable deadline to do so, and has prominently highlighted those States which are substantially overdue in doing so.278 As of 31 December 2018 there were twelve States parties named.279 The description of the SPT as a ‘subcommittee’ of the CAT is a misnomer, since there is no requirement that any members of the CAT be members of the SPT, and there has in fact been no overlap in membership between the two bodies (though at least one former member of the Committee has been elected to the SPT280). Article 10(3) provides that the two bodies should hold simultaneous sessions at least once a year, a practice which has been followed. Article 16(3) provides that the Subcommittee is to present an annual public report on its activities to the Committee; that report is also presented to the General Assembly as a separate document. Article 16(4) provides that where a State party refuses to cooperate with the Subcommittee, the Committee may itself make a public statement on the matter or publish the SPT’s report.281 This is a curious and potentially difficult arrangement, given that the Subcommittee is otherwise an independent body. As of early 2019 the Article 16(4) procedure had been initiated only once and was resolved without the need for a formal statement.282 The two bodies have been able to forge a constructive relationship, seeing their roles as related but complementary, in particular through the OPCAT’s focus on prevention. They have established a contact group and meet regularly;283 material from the public reports of the SPT has been taken up by the Committee under the reporting procedure, 270 CAT/​C/​57/​4, paras 48–​82 (2016). 271 CAT/​C/​54/​2, paras 73–​96 (2015). 272 CAT/​C/​50/​2, paras 70–​80 (2013). 273 CAT/​C/​63/​4, paras 47–​51(2018). 274 CAT/​C/​48/​3, paras 77–​82 (2012). 275 CAT/​C/​50/​2, paras 81–​94 (2013). 276 CAT/​C/​48/​3, paras 65–​76 (2012). 277 CAT/​OP/​C/​57/​4, Annex (2016). 278 CAT/​OP/​29/​1 (2016). See also Statement by Sir Malcolm Evans, Chairperson of the Subcommittee on the Prevention of Torture, UN General Assembly, 15 October 2018, 4. 279 CAT/​C/​66/​2, para 24 (2018). 280 Dr Nora Sveaass of Norway. 281 Murray et al, above n 251, 139–​42. 282 CAT/​C/​63/​2, para 21 (2018). 283 See, eg, CAT/​C/​SR.1296, paras 45–​59 (2015) (meeting of SPT Chairperson with CAT); CAT/​C/​63/​4, para 28; A/​74/​44, para 12 (2018).

The Committee against Torture  517 and the OPCAT has stimulated the Committee to engage directly with the work of NPMs.284 There are some uncertainties about how the procedures of the two bodies should interact, particularly as regards the Committee’s access to confidential material that arises as part of the SPT’s work and also how the Article 19 reporting and Article 20 inquiry procedure relate to and should be coordinated with SPT visits.285

13.6  Conclusion In its three decades of work the Committee against Torture has overall done a creditable job, taking into account the limitations of its resources, its part-​time nature and its limited mandate. It has carried out the process of reviewing reports with considerable efficiency, has adhered in a principled and robust way to the standards of the Convention, and has adopted concluding observations which are substantively sound and useful. The results of the reporting procedure show that ratification of the Convention and, in some cases, encouragement by the Committee, has led to the amendment of national laws to more fully reflect obligations under the Convention.286 At the same time, however, it has been unable to address the delinquency of States parties in relation to reporting and appears to have little prospect of doing so independently of more wide-​ reaching reforms to the treaty system.287 In its work under the individual communications procedure it has both provided remedies (largely against threatened violations of Article 3) and developed a jurisprudence that may have a broader impact. The contribution of the inquiries conducted under Article 20 is harder to evaluate, but can be assessed reasonably positively as useful contributions to international efforts to put pressure on states where torture is widespread. The Committee's elaboration of general comments has been useful for states, domestic bodies and advocates. The work of the Committee has become better-​known at the national level and is increasing being cited before and by national courts and tribunals. Its work has been bolstered by the addition of OPCAT and the SPT, which represents an important addition to the institutional mechanisms for addressing the problem of torture.

284 See, eg, CAT/​C/​SR.1296, paras 7, 19, and 33 (2015) (Romania). 285 See Guidelines adopted by the Committee regarding the Optional Protocol to the Convention, A/​58/​44, para 14 (2003). For example, the SPT paid a visit to Lebanon when it was the subject of an Article 20 inquiry by CAT. 286 R McQuigg, ‘How Effective is the United Nations Committee against Torture?’ (2011) 22 Human Rights Quarterly 813; B Simmons, Mobilising for Human Rights: International Law in Domestic Politics (2009), Chap 7. 287 The Committee’s formal position in relation to the 2020 treaty body strengthening process, adopted in mid-​ 2018, is at A/​74/​44, Annex II (2019).

14 The Committee on the Rights of the Child Christine Evans*

‘Children are not mini-​human beings with mini-​human rights’1

14.1  Introduction The entry into force of the Convention on the Rights of the Child (CRC) in 1990 marked a monumental shift in the recognition of children as rights-​holders and a clear step away from traditional notions whereby children were merely perceived as passive beneficiaries of protection and welfare. The Convention has 196 States parties, making it the most widely ratified international human rights treaty. Responding to a widespread call for universal ratification, Somalia was the most recent state to ratify the Convention on 1 October 2015. The last remaining state that is yet to ratify the Convention is the United States of America, despite having signed it in 1995. Every other United Nations member state, as well as the Cook Islands, the Holy See, Niue, and Palestine, has now ratified the Convention, creating a sense of political pressure for the United States of America to follow suit. The Convention stands out for its novel and comprehensive approach as its spans economic, social and cultural rights as well as civil rights and also includes provisions relating to refugee law and international humanitarian law. It contains specific provisions on minority rights and is the only human rights treaty to contain a reference to the rights of indigenous persons. Furthermore, the Convention established innovative concepts in provisions on the best interests of the child and on the right of the child to express views and be heard. The Convention is accompanied by three substantive Optional Protocols. The first, on the sale of children, child prostitution, and child pornography, entered into force in January 2002. The second, on the involvement of children in armed conflict, entered into force in February 2002. Most recently, a third Optional Protocol creating a communications procedure entered into force in April 2014. * The views in this chapter are expressed in the author’s individual capacity and do not necessarily reflect the views of the United Nations. 1 Maud de Boer-​Buquichio, United Nations Special Rapporteur on the sale and sexual exploitation of children, former Deputy Secretary-​General of the Council of Europe.

520  Christine Evans Article 43 of the CRC created the Committee on the Rights of the Child ‘for the purpose of examining the progress made by States parties in achieving the realization of the obligations undertaken in the present Convention’. Among one of the principal tasks of the Committee is the review of State party reports. The Committee is unique among treaty bodies in that it currently reviews State party reports under three substantive treaties. Article 45 explicitly recognizes the role of UNICEF and other competent bodies in implementation of the Convention and it has resulted in a vibrant rights-​based constituency for child rights across the globe. The aim of this chapter is to give an overview of the working methods of the Committee on the Rights of the Child and analyse how these have developed. The chapter observes similarities and differences in the working methods of the Committee as compared to other treaty bodies and also comments on the various partnerships which the Committee has formed over time. Finally, some reflection is included on the impact of the Convention and the work of the Committee. The chapter does not seek to provide a historical description of the Convention or the early work of the Committee, since this has been dealt with extensively by other authors.2 Rather, the chapter emphasizes current and recent practices as well as considers some future challenges and opportunities for the Committee.

14.2  Membership and independence The Committee on the Rights of the Child was initially composed of ten expert members, in accordance with Article 43(2) of the Convention. However, in view of the high number of ratifications and the heavy workload, the Convention was amended in 2002 to increase the number of members to eighteen. The membership was expanded on the rationale that this change would enable the Committee to carry out its work in a more timely manner.3 As for the election process itself, the Committee elections take place at biennial meetings of States parties. Nine members are elected each time, and each State party may nominate one person. The experts are elected by secret ballot. They serve for four-​year terms and may be re-​elected for subsequent terms (Article 43(6)). In practice, members are commonly re-​elected and it is not unusual for members to serve on the Committee for extended periods of time. The Convention stipulates in Article 43(2) that the Committee membership shall consist of ‘experts of high

2 OHCHR, Legislative History of the Convention on the Rights of the Child (Part I and II), United Nations, 2007. Available at the website of the Office of the United Nations High Commissioner for Human Rights; www.ohchr. org; R Hodgkin and P Newell, Implementation Handbook for the Convention on the Rights of the Child (UNICEF, 2007); S Detrick, A Commentary on the United Nations Convention on the Rights of the Child (Martinus Nijhoff, 1999); J Alston and J Tobin, Laying the Foundations for Children’s Rights (UNICEF Innocenti, Florence, 2005). 3 The government of Costa Rica proposed the amendment (CRC/​SP/​1995/​L.1/​Rev.1). A  Conference of the States parties, convened by the Secretary-​General in accordance with Article 50 (1) of the Convention, adopted the amendment on 12 December 1995. It subsequently approved by General Assembly in Resolution No. 155 of 21 December 1995. The amendment entered into force on 18 November 2002, in accordance with Article 50(2).

The Committee on the Rights of the Child  521 moral standing and recognized competence in the field covered by this Convention’. Members ‘serve in their personal capacity’, meaning that they should act independently while exercising their functions as opposed to being representatives of their nominating State. In practical terms, several challenges arise in relation to the criteria for membership on the Committee. The quality of the experts serving on the Committee has been high but not always consistent, partly because there is no process whereby the ‘recognized competence’ of nominated candidates is assessed. Few, if any, states undertake a transparent and competitive call for interested candidates at the national level. Engagement with civil society regarding the suitability of candidates is often also lacking. Once nominated, scrutiny of the qualifications of the candidate is politically sensitive. The curriculum vitae of nominated candidates are placed on the website of the UN Office of the High Commissioner for Human Rights (OHCHR), but the UN plays no role in assessing candidates. International civil society organisations specializing in children’s rights have attempted to review the qualifications of nominated candidates. Efforts have also been made to conduct interviews with candidates, on a voluntary basis, to inquire about their motivation, expertise, and vision for the Committee. However, the absence of a concrete assessment process has resulted in experts with mixed qualifications and ambitions being elected. In addition, should a member resign or die, the State party is entitled to nominate a replacement for the remainder of that member’s term.4 While the appointment is subject to approval by the Committee, in practice this is a formality and states essentially designate their proposed replacement candidate. The membership of the Committee has benefited from a variety of professional categories, producing a multifaceted approach to the analysis of the Convention’s provisions. Committee experts are not remunerated, apart from compensation for travel and daily expenses. Nevertheless, the members are expected to participate in month-​long Committee sessions in Geneva three times a year and can be required to undertake additional duties between sessions. In practice, this limits the categories of professionals who may be available as Committee members, with a significant number being academics or retired professionals. Approximately half of the Committee members have had a legal background. Overall, members have had diverse backgrounds ranging from judges and children’s ombudsmen, to education specialists, sociologists, journalists, physicians and psychologists. The Convention does not contain provisions on achieving a gender balance amongst the Committee members. However, out of the existing human rights treaty bodies, the Committee on the Rights of the Child is the only committee to have attained equal representation of male and female members. It should furthermore be noted that this has been a relatively consistent practice ever since the initial establishment of the Committee.5

4 Convention on the Rights of the Child, Article 43(7). 5 Report of the United Nations High Commissioner for Human Rights on the equitable geographical distribution in the membership of the human rights treaty bodies, 3 August 2009, UN Doc A/​64/​212.

522  Christine Evans In their promotion of candidates, states negotiate and trade votes for elections in different international fora.6 In these negotiation processes, more attention can be paid to national political interests and regional geographic balance, rather than the suitability and qualifications of the individual candidate. The election process is intended to result in membership that reflects equitable geographical distribution as well as the principal legal systems. However, there is no formal mechanism to ensure such a fair distribution of members, and the membership has in practice tended to demonstrate an overrepresentation of European experts.7 The Committee itself also elects a Bureau, consisting of a Chairperson, four Vice-​Chairpersons and a Rapporteur. These positions should similarly represent different geographic regions and the three working languages of the Committee (English, French and Spanish).8 The ability to be elected onto the Committee effectively depends on the willingness of the nominating state to promote the particular candidate. In states with limited democratic traditions, it can be nearly impossible for candidates who have spoken out against the government to present their candidature. Moreover, the practice of states nominating government officials as experts raises concern as to the independent nature of Committee membership. Such government officials may have experience working on substantive issues relating to children’s rights within an authority or government entity. However, the nomination of active or retired diplomats can raise questions of impartiality if the member’s primary, and potentially remunerated, function, is to act in the interest of their state. The presence of experts who lack independence is a general obstacle which affects all treaty bodies, as such partial experts risk further politicizing the work of the Committee. The Committee on the Rights of the Child has tended to have relatively few government officials or diplomats as members, particularly when compared to other treaty bodies. The need to improve the independence of members has been the subject of considerable discussion.9 The issue of the independence of members becomes particularly significant in the consideration of state reports by the Committee. While the Committee’s practice has been for experts to abstain from participating in the consideration of reports from their state, the Committee has not explicitly taken a decision on this issue. The second session of the Committee agreed on the ‘desirability of [members] not participating in the Committee’s discussion during the examination of the reports of their own Governments’.10 The presence of diplomats in such circumstances is not encouraged 6 J Crawford, ‘The Human Rights Treaty System: A System in Crisis’ in P Alston and J Crawford (eds), The Future of UN Human Rights Treaty Monitoring (Cambridge University Press, 2000) 9. 7 Report of the United Nations High Commissioner for Human Rights on the equitable geographical distribution in the membership of the human rights treaty bodies, 3 August 2009, UN Doc A/​64/​212. 8 Rules of Procedure of the Committee on the Rights of the Child, revision adopted at the 67th session in 2014, UN Doc CRC/​C/​4/​Rev.4, rules 16, 17. 9 Report to the General Assembly of the Chairs of the Human Rights Treaty Bodies on their Twenty-​Third Meeting, 22 July 2011, UN Doc A/​66/​175, paras 5–​7, 19–​20. See discussion in J Connors, ‘An Analysis and Evaluation of the System of State Reporting’ in A Bayefsky (ed), The UN Human Rights Treaty System in the 21th Century (Kluwer Law International, 2000) 3–​21. 10 Report of the Second Session of the Committee on the Rights of the Child, UN Doc CRC/​C/​10, para 33.

The Committee on the Rights of the Child  523 given the risk of compromising the independence of the State party review. Some other treaty bodies have adopted provisions in their Rules of Procedure explicitly excluding experts from participating in discussions where there would be a conflict of interest, such as during the consideration of reports of their nationality.11 The selection process of special procedures mandate-​holders in the Human Rights Council provides a recent example highlighting important issues in relation to the selection process of treaty body experts. The Council’s resolution on institution-​building established clearly that ‘individuals holding decision-​making positions in Government or in any other organization or entity which may give rise to a conflict of interest with the responsibilities inherent to the mandate shall be excluded. Mandate-​holders will act in their personal capacity’.12 The exclusion of government officials from acting as special procedures independent experts increased awareness of the challenge faced by treaty bodies in their efforts to resolve this potential overlap of roles. The Council furthermore established clear guidelines for the selection of special procedures mandate-​holders:  ‘The following general criteria will be of paramount importance while nominating, selecting and appointing mandate-​holders:  (a) expertise; (b)  experience in the field of the mandate; (c) independence; (d) impartiality; (e) personal integrity; and (f) objectivity’.13 Significantly, and in contrast to treaty bodies, the nomination of experts for special procedures is not limited to states but is expanded to non-​governmental organizations, international organizations, national human rights institutions, and self-​nominations by individuals.14 Further measures to ensure the competence and independence of treaty body experts are needed. The contribution of treaty bodies to the human rights system depends on the quality of their outputs, which in turn is dependent on the presence of qualified, committed and independent members. The continued nomination by states of government officials and their presence on the Committee risks compromising efforts in this regard.

14.3  The State party report The primary function of the Committee is to review State party reports provided under the Convention. States parties that have ratified or acceded to the Convention have, as set out in Article 44(1), an obligation to submit reports to the Committee on ‘measures they have adopted which give effect to the rights recognized herein and on the progress

11 Rules of Procedures of the Human Rights Committee, revision of 13 January 2011, UN Doc CCPR/​C73/​Rev.9, Rule 71(4) and Rules of Procedure of the Committee against Torture, revision of 21 February 2011, UN Doc CAT/​ C//​3/​Rev.5, Rule 73. See further references in Report on the Working Methods of the Human Rights Treaty Bodies Relating to the State party Reporting Process, 23 May 2011, UN Doc HRI/​ICM/​2011/​4, para 58. 12 Human Rights Council resolution 5/​1 adopted on 18 June 2007, A/​HRC/​RES/​5/​1, Annex paragraph 46. 13 Human Rights Council resolution 5/​1 Annex para 39. 14 Human Rights Council resolution 5/​1, Annex para 42. National human rights institutions were added to the entities able to nominate candidates for Special Procedures mandates following the Human Rights Council review in resolution 16/​21, adopted on 25 March 2011, Annex para 22(c).

524  Christine Evans made on the enjoyment of those rights’. An initial report is to be submitted within two years of the entry into force of the Convention and subsequent reports submitted every five years. The reports should indicate the factors and difficulties affecting the degree of fulfilment of the obligations under the Convention and contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the country concerned.15 States parties are furthermore obliged to make their reports widely available to the public in their own countries.16 The Committee in turn is required to submit a report on its activities every two years to the General Assembly, through the Economic and Social Council (ECOSOC), in accordance with Article 44(5). In 2002, two Optional Protocols to the Convention entered into force, namely the Optional Protocol on the involvement of children in armed conflict (OPAC) and the Optional Protocol on the sale of children, child prostitution and child pornography (OPSC). These Protocols each contain substantive provisions and require the submission of a separate initial report, although subsequent information relating to implementation of the Protocols is submitted in conjunction with the periodic report under the Convention.17 In addition, if communications are received in relation to individual complaints against a State party, a separate written response may be submitted under the Optional Protocol on a Communications Procedure, with any further information also submitted as part of subsequent periodic reports. The Committee has developed and adopted Reporting Guidelines for the Convention and the first two Optional Protocols.18 The objective of these is to provide guidance for States parties on how information relating to the Articles of the Convention should be presented.19 Each State party report must be submitted in one of the official languages of the United Nations (English, French, Spanish, Arabic, Chinese or Russian) and will subsequently be processed and made available in the three working languages of the Committee; English, French and Spanish.20 The cost for processing documents through editing and translation is significant so states are requested to limit their reports to 21,200 words. Across the human rights treaty body system, efforts to harmonize and avoid too much duplication of information prompted the development of guidelines for a Common Core Document in 2006. Each state is encouraged to submit this document to provide information about its general framework for human rights protection, available remedies, and certain basic rights such as non-​discrimination.21 The rationale 15 Convention on the Rights of the Child, Article 44(2). 16 Convention on the Rights of the Child, Article 44(6). 17 Article 12 of OPSC and Article 8 of OPAC. 18 The most recent Reporting Guidelines for the Convention on the Rights of the Child were adopted at the 65th session in January 2014, UN Doc CRC/​C/​58/​Rev.3. These replaced the previous Reporting Guidelines adopted by the Committee in October 2010, UN Doc. CRC/​C/​58/​Rev.2. 19 Reporting Guidelines for the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, 3 November 2006, UN Doc CRC/​C/​OPSC/​2 and Reporting Guidelines for the Optional protocol on the Involvement of Children in Armed Conflict, 19 October 2007, UN Doc CRC/​C/​OPAC/​2. 20 In addition to the UN official language it was submitted in, if Arabic, Chinese or Russian. 21 Guidelines on the Elaboration of a Common Core Document accepted by the Fifth Inter-​Committee Meeting and Eighteenth Meeting of Chairpersons of Human Rights Treaty Bodies in June 2006, UN Doc HRI/​MC/​2006/​3 and also contained in HRI/​GEN/​2/​Rev.6. The Common Core Document should not exceed 60–​80 pages.

The Committee on the Rights of the Child  525 is that the Common Core Document should contain information relevant for all treaty bodies and therefore reduce the treaty-​specific reporting burden. However, in practice, the implementation of the Common Core Document has proved challenging as it requires updates each time a treaty specific report is submitted. Furthermore, most treaty bodies continue to request information that is more specific than that contained in a Common Core Document, meaning it has not had as significant an impact in reducing reporting obligations as was initially expected. In 1991, the Committee identified thematic clusters according to which related Articles are grouped in order to have a clearer overview of the Convention.22 These thematic clusters are outlined in the Reporting Guidelines and reflected in the Concluding Observations adopted following the review of a State party report. Nine thematic clusters of rights have been defined as follows:

• General Measures of Implementation (Articles 4, 42, 44(6)) • Definition of the Child (Article 1) • General Principles (Articles 2, 3, 6, and 12) • Civil Rights and Freedoms (Articles 7, 8, 13–​17) • Violence against children (Articles 19, 24 (3), 28 (2), 34, 37(a), and 39) • Family Environment and Alternative Care (Articles 5, 9–​11, 18(1, 2), 19–​21, 25, 27(4)) • Disability, Basic Health and Welfare (Articles 6, 18(3), 23, 24, 26, 27(1–​3), and 33) • Education, Leisure and Cultural Activities (Articles 28, 29, 30, and 31) • Special Measures of Protection (Articles 22, 30, 32–​6, 37(b–​d), 38, 39, and 40) This clustering assists in emphasizing the inter-​relatedness of the provisions and the importance of understanding the holistic nature of the Convention.23 The Committee however maintains that equal importance is attached to all the rights recognized by the Convention.24 The first cluster on General Measures of Implementation was explored in a General Comment adopted by the Committee in 2003.25 This cluster generally receives considerable attention both in the written State party report and during the review. Details are provided on the legal and administrative framework available for the implementation of the Convention. This includes details of legislative reviews, national child rights strategies and policies adopted and the government entities responsible for their coordination, available resources through budget  allocations and/​or development 22 General Guidelines regarding the Form and Content of Initial Reports to be Submitted by States parties, adopted by the Committee at its first session in October 1991, UN Doc CRC/​C/​5. 23 M Verheyde and G Goedertier, A Commentary on the United Nations Convention on the Rights of the Child; Article 43–​5, The UN Committee on the Rights of the Child (Martinus Nijhoff, 2006); G Landsdown, ‘The Reporting Process under the Convention on the Rights of the Child’ in P Alston and J Crawford (eds), The Future of UN Human Rights Treaty Monitoring, (Cambridge University Press, 2000) 113–​28. 24 General Guidelines regarding the Form and Content of Initial Reports to be Submitted by States parties, adopted by the Committee at its first session in October 1991, UN Doc. CRC/​C/​5, para 8. 25 General Comment No 5 on General Measures of Implementation of the Convention on the Rights of the Child, 27 November 2003, UN Doc CRC/​GC/​2003/​5.

526  Christine Evans cooperation, the existence of monitoring mechanisms, and measures taken to disseminate and promote awareness of the provisions of the Convention. The cluster referred to as General Principles encompasses four essential provisions in the Convention: non-​discrimination (Article 2); the best interests of the child (Article 3); the right to life, survival and development (Article 6); and respect for the views of the child (Article 12).26 The Committee considers these four provisions to constitute cross-​cutting principles which should guide the implementation of the Convention throughout. The cluster approach does however present challenges as some provisions do not fit neatly into the designated categorizations. For example, the situation of children with disabilities (Article 23) is considered under the health cluster, despite requiring a comprehensive approach.27 Another challenge of categorization occurs in relation to indigenous and minority children (Article 30), who have primarily been addressed under the cluster of special protection measures, yet whose rights need particular attention in relation to various clusters. The Committee has sought to address these aspects in General Comments on the above provisions and encourages states to use these for additional guidance on the reporting process.28 Since the reporting system has now been in existence for over two decades, most States parties have submitted several reports under the Convention. A principal challenge with the treaty body reporting system is the absence of enforcement mechanisms to ensure prompt compliance with the reporting obligation, as is discussed further below. The review procedure is only triggered once the State party reports are submitted and the Committee has little leeway to influence and promote the preparation of reports at the national level, beyond sending reminder letters. The Committee emphasizes that reports should be elaborated in a way that closely reflects any previous Concluding Observations in order to assess the degree of progress made in specific areas. State party reports at times disregard recommendations from previous reviews where no progress has taken place at the national level. States sometimes also avoid submitting relevant information in an attempt to reduce the visibility of a particular issue, perhaps hoping that the Committee will focus on other aspects. A general challenge with State party reports is that many fail to provide information about practical and concrete changes in the implementation of particular provisions. For example, laws are commonly referred to without additional information on how

26 The General Principles are referred to in the General Comment No 5, see also General Comment No 12 on The Right of the Child to be Heard, 20 July 2009, UN Doc CRC/​GC/​2009/​12. Non-​discrimination is referred to in several General Comments, see in particular; General Comment No 3 on HIV/​AIDS and the Rights of the Child, 17 March 2003, UN Doc CRC/​GC/​2003/​3, General Comment No 6 on Treatment of Unaccompanied and Separated Children Outside their Country of Origin, 1 September 2005, UN Doc CRC/​GC/​2005/​6, General Comment No 9 on The Rights of Children with Disabilities, 13 November 2007, UN Doc CRC/​GC/​2006/​9/​Corr.1 and General Comment No. 11 on Indigenous Children and their Rights under the Convention, 12 February 2009, UN Doc. CRC/​GC/​2009/​11. The Best Interests of the Child is explored in the General Comment No 14 on Article 3; Un Doc CRC/​C/​GC/​14, 29 May 2013. 27 G Landsdown, ‘The Reporting Process under the Convention on the Rights of the Child’ in P Alston and J Crawford (eds), The Future of UN Human Rights Treaty Monitoring (Cambridge University Press, 2000) 113–​28. 28 General Comments No 9, 11 and General Comment No 13 on The Right of the Child to Freedom from All Forms of Violence, 18 April 2011, UN Doc CRC/​GC/​2011, 13.

The Committee on the Rights of the Child  527 they operate in practice and what obstacles impede their enforcement. Novel public policies, plans, and strategies are often promoted in reports, but information is seldom provided on whether assessments of previous initiatives were undertaken and what the results indicated. A high-​quality State party report should closely refer to previous recommendations, highlight progress made and, where pertinent, acknowledge areas where further steps need to be taken in order to improve implementation of the rights in practice. An analytical and self-​critical report should be written as part of a consultative process at the national level, whereby authorities consult relevant entities and take into account the perspectives of civil society organizations. Regrettably, such a constructive report-​drafting process tends to be the exception rather than the norm.29 Where present, an independent national human rights institution (NHRI) may play an important role in promoting and facilitating dialogue between various actors at the national level during the preparation of reports. The Committee actively seeks collaboration and information exchanges with independent NHRIs, both broad-​based ones as well as those specifically mandated, such as children’s ombudsmen. The Committee however considers that an NHRI should not assume the reporting burden, as having to defend actions of authorities may compromise their independence.30 The responsibility for the preparation of the State party report should primarily rest with the government or ministerial entity that coordinates child rights nationally and has the task of following up on recommendations issued by the Committee. Each State party review commences with questions from the Committee to the representatives of the State party regarding how the report was prepared and to what extent it was done in the framework of a consultative process. Following their submission, State party reports are scheduled for review in chronological order. Exceptions to the order are made when an initial State party report is submitted or to enable the simultaneous consideration of reports under the Convention and the Protocols, if submitted separately. The schedule for the consideration of reports is publicly available and regularly updated at the website of the UN Office of the High Commissioner for Human Rights (OHCHR).31

14.4  Consideration of State party reports The Committee considers that ‘the process of preparing a report for submission to the Committee offers an important occasion to conduct a comprehensive review of the measures undertaken to harmonize national law and policy with the Convention and monitor progress made in the enjoyment of the rights set out in the Convention’.32 It 29 J Connors, ‘An Analysis and Evaluation of the System of State Reporting’ in A Bayefsky (ed), The UN Human Rights Treaty System in the 21st Century (Kluwer Law International, 2000) 3–​21. 30 Committee on the Rights of the Child, General Comment No 2 on The Role of Independent National Human Rights Institutions in the Promotion and Protection of the Rights of the Child, 15 November 2002, UN Doc CRC/​ GC/​2002/​2, para  21. 31 Available at: http://​tbinternet.ohchr.org/​_​layouts/​TreatyBodyExternal/​SessionsList.aspx?Treaty=CRC. 32 General Guidelines regarding the Form and Content of Initial Reports to be Submitted by States parties, adopted by the Committee at its first session in October 1991, UN Doc CRC/​C/​5, para 3.

528  Christine Evans is important to emphasize that the consideration of a report under the Convention is merely one component of a wider reporting cycle, with the key elements of the process taking place at the national level both before and after the review.33 Ideally, the process of preparing a report is seen by the State party as an opportunity to conduct a comprehensive analysis to ensure that national legislation and policy aligns with relevant treaty provisions. A constructive approach to such a review can encourage an open dialogue with civil society in order to discuss specific aspects that should be further addressed and identify actions and goals to ensure improved enjoyment of the rights under the Convention. Article 43(10) of the Convention established that the Committee should ‘normally meet annually’. However, in view of the swift ratification of the Convention, it soon became clear that the Committee would have to request additional meeting time in order to consider all State party reports. Such a request was approved by the General Assembly in 1994 and the Committee now meets three times annually.34 The Committee meets in Geneva for twelve weeks a year in total. It is supported by a secretariat within OHCHR which organizes the sessions and prepares both country files and an annotated country analysis comparing information from a variety of sources. The first step in the consideration of the report is a week-​long pre-​sessional working group. All members of the Committee participate in the working group, which holds closed meetings relating to all States parties due for review at the next session. The objective of the working group is to identify in advance the most important issues to be discussed with representatives of the State.35 The pre-​sessional working group adopts a ‘List of Issues’ for all upcoming State party reviews that identifies areas where the Committee requests further information and also provides a preliminary indication of the issues that will be addressed during the official dialogue. There are no formal records of these meetings and government officials and observers cannot attend. Article 45(a) explicitly states that the Committee may invite the specialized agencies, the United Nations Children’s Fund and other competent bodies as it may consider appropriate to provide expert advice and submit reports on the implementation of the Convention in areas falling within the scope of their respective mandates. Such agencies can also participate in the working groups. In its Guidelines for the Participation of Partners in the Pre-​Sessional Working Group, the Committee has clearly stated that the term ‘other competent bodies’ includes non-​governmental organizations (NGOs).36 The Convention on the Rights of the Child was the first human rights treaty to contain such a provision, which has formed the basis for a close and constant engagement between the Committee, UN agencies and NGOs. 33 OHCHR Factsheet No 30, The United Nations Human Rights Treaties System, An Introduction to the Core Human Rights Treaties and the Treaty Bodies, United Nations, 2005, pp 18–​20. 34 General Assembly resolution 49/​211 on Implementation of the Convention on the Rights of the Child, 23 December 1994, UN Doc A/​RES/​49/​211. 35 General Guidelines regarding the Form and Content of Initial Reports to be Submitted by States parties, adopted by the Committee at its first session in October 1991, UN Doc CRC/​C/​5, para 8. 36 Guidelines for the Participation of Partners in the Pre-​sessional Working Group of the Committee on the Rights of the Child, 7 December 1999, UN Doc. CRC/​C/​90, Annex VIII.

The Committee on the Rights of the Child  529 Prior to the pre-​sessional working group, UN agencies (most commonly UNICEF, UNHCR, ILO, WHO and UNESCO) and NGOs, can submit information to the Committee. UNICEF’s rights-​based mandate based on the Convention and their significant national presence across the globe provides the Committee with a highly valuable and unique partnership.37 The NGO Child Rights Connect (formerly known as the NGO Group for the CRC, in existence since 1983), plays a particularly crucial coordinating role in promoting involvement of national NGOs in the reporting process.38 Child Rights Connect encourages the creation of national coalitions of NGOs working for children and the development of comprehensive parallel reports to the Committee, assists the secretariat of the Committee in liaising with national NGOs and provides advice to representatives of national coalitions who are invited to participate in the pre-​ sessional working group.39 The existence of national coalitions is especially valuable as it establishes a consolidated lobby base which encourages awareness and promotes follow-​up at the national level. It provides the Committee with an invaluable source of direct and detailed information on developments on the ground.40 The official consideration of the State party report generally takes place two to three months after the pre-​sessional working group. The State party is invited to send representatives and the report is reviewed in public session through a constructive dialogue. The dialogue takes place over six hours in a single day, divided into two three hour sessions. The public session is open to any interested observers, including media representatives. In general, UNICEF and NGO representatives from the country in question are present as observers during the dialogue. Representatives of independent NHRIs are encouraged to attend, but are advised against forming part of the government delegation as this compromises their status as an independent monitoring entity.41 After the meeting, a press release and official summary records are issued. The number of State party delegates attending the dialogue varies considerably depending on the State party, but is most commonly between half a dozen and a dozen persons. In order to have a fruitful dialogue, that the State party delegation should be sufficiently high-​level to assume commitments and drive follow-​up following the review, however it should also consist of sufficient representatives who have technical knowledge of working with implementation of the Convention in practice. Typically, delegations are cross-​sectorial and integrated by representatives of several ministries responsible for coordination, health, education, social policies as well as the justice 37 UNICEF’s mission statement affirms that ‘UNICEF is guided by the Convention on the Rights of the Child and strives to establish children's rights as enduring ethical principles and international standards of behaviour towards children’. Available at: http://​www.unicef.org/​about/​who/​index_​mission.html. 38 Available at: http://​www.childrightsconnect.org/​. 39 L Theytaz-​Bergman, A Guide for Non-​Governmental Organisations reporting to the Committee on the Rights of the Child (3rd edn, NGO Group for the Convention on the Rights of the Child, Geneva, 2006). 40 For further NGO perspectives on the CRC reporting process, see R Brett, ‘State Reporting: an NGO Perspective’ in A Bayefsky (ed), The UN Human Rights Treaty System in the 21th Century (Kluwer Law International, 2000) 57–​ 62; L Theytaz-​Bergman, ‘State Reporting and the Role of Non-​Governmental Organizations’ in A Bayefsky (ed), The UN Human Rights Treaty System in the 21th Century (Kluwer Law International, 2000) 45–​56. 41 Committee on the Rights of the Child, General Comment No 2 on The Role of Independent National Human Rights Institutions in the Promotion and Protection of the Rights of the Child, 15 November 2002, UN Doc CRC/​ GC/​2002/​2, para  21.

530  Christine Evans sector. Reviews under the Optional Protocol on the involvement of children in armed conflict commonly include the presence of the Ministry of Defense. Should the government delegation ask to re-​schedule its review on compelling grounds, the Committee will generally grant the request. Some treaty bodies have proceeded to conduct reviews of States parties in the absence of a report which has been long overdue and multiple reminders have been issued.42 The Committee may also opt to review a State party in the absence of a report,43 however to date has avoided this practice. While the threat of reviewing a state in the absence of a report or even a State party delegation may generate a certain degree of compliance, such a review is unlikely to gain much follow-​up support at the national level as the government has disassociated itself from the process. During the dialogue, the Committee proceeds by raising questions in the order of the clusters. A country rapporteur (sometimes two) or a task force is nominated among the Committee members and they initiate and close the dialogue with preliminary observations. The Committee subsequently convenes in closed sessions and, with support from the secretariat, prepares and adopts Concluding Observations which contain an assessment of the implementation in the State party. The Concluding Observations are sent to the State party and are publicly adopted on the last day of the session and made available to stakeholders and posted on the OHCHR website. The Concluding Observations are not legally binding. However, they may be considered as jurisprudence as they constitute interpretations and recommendations on treaty obligations which have been voluntarily assumed by the State party. While the consideration of State party reports is a fairly similar process among human rights treaty bodies, there are some aspects where their approach and working methods differ. One such aspect is cross-​referencing between Committees and other human rights bodies in the interest of harmonizing and supporting mutually shared objectives. The Committee on the Rights of the Child has generally been progressive on this issue and refers to other treaty bodies and special procedures in their Concluding Observations. Over time, the Concluding Observations became more and more lengthy and discussions continue over the need to prioritize among the issues and recommendations issued. The Concluding Observations of the Committee on the Rights of the Child are significantly longer that those of other Committees.44 The Committee has sought to address issues under all clusters for all countries, which provided States with a plethora of recommendations yet no clear indication of which recommendations should be

42 For example CESCR, CERD, and CAT have considered State party reports without a government delegation, see further details in the Report on the Working Methods of the Human Rights Treaty Bodies Relating to the State party Reporting Process, 23 May 2011, UN Doc HRI/​ICM/​2011/​4, paras 70–​73, 90–​92. See also the Rules of Procedure of the Committee on the Rights of the Child, revision adopted at the 55th session in October 2010, UN Doc CRC/​C/​4/​Rev.2, rule 71 on Non-​submission of reports. 43 Overview of the Reporting Procedure adopted at the seventh session of the Commission, 24 October 1994, UN Doc CRC/​C/​33, para 32. 44 Working Methods of the Human Rights Treaty Bodies Relating to the State party Reporting Process, 23 May 2011, UN Doc HRI/​ICM/​2011/​4, para 76.

The Committee on the Rights of the Child  531 considered priority. Other treaty bodies have adopted the practice of indicating priority concerns and recommendations and in 2014 the Committee on the Rights of the Child adopted a decision to follow suit.45 The urgency to prioritize among the number of recommendations issued is gaining increased attention and is frequently raised by a number of stakeholders as essential in order to promote follow-​up and subsequent assessments of implementation at the national level.46

14.5  Backlog of reports and parallel chambers A key challenge that the entire treaty body system is faced with is the backlog of reports. This problem has increased exponentially as the number of States parties to human rights treaties has increased over the past two decades. During the past four decades, nine international core human rights treaties have entered into force, six of which have been adhered to by more than 75 per cent of States. The number of ratifications of core human rights conventions, including their optional protocols, has steadily augmented, as illustrated by the increase from a total of 243 ratifications in 1980, to 1908 by 2011. While the increased global commitment to human rights treaties is extremely significant, attention needs to be shifted from standard-​setting to practical measures at the national level. As succinctly expressed by the former UN Secretary-​General Kofi Annan in his 2005 reform proposal; ‘we must move from an era of legislation to an era of implementation’.47 While the human rights machinery has expanded and offers more avenues for redress, the treaty body system lacks coordination and suffers from duplication and serious congestion. In a series of detailed analytical reports between 1989 and 1997 on the effectiveness of the human rights treaty system, the Independent Expert; Mr. Philip Alston, suggested that measures to avoid insurmountable backlogs may include a merger of the treaty bodies.48 In 2006, OHCHR presented a proposal for a unified standing treaty body and observed that states that have ratified nine treaties that impose reporting obligations should produce a treaty body report on average every five and a half months. Only eight States were up to date with their overall reporting obligations and 186 States owed some 1442 reports to the human rights treaty bodies.49 45 Decision No 11, Follow-​up of resolution 68/​268 on strengthening and enhancing the effective functioning of the human rights treaty body system, adopted 19 September 2014. 46 Report of the Inter-​ Committee Meeting Working Group on Follow-​ up to Concluding Observations, Decisions on Individual Complaints and Inquiries, 4 May 2011, UN Doc HRI/​ICM, 2011/​3-​HRI/​MC/​2011/​2. 47 Report of the Secretary General to the General Assembly, In Larger Freedom, Towards Development, Security and Human Rights for All, 25 March 2005, UN Doc A/​59/​2005, para 132. 48 Initial Report on Enhancing the Long-​Term Effectiveness of the United Nations Human Rights Treaty System, by the Independent Expert Mr Philip Alston, 8 November 1989, UN Doc A/​44/​668; Final Report on Enhancing the Long-​Term Effectiveness of the United Nations Human Rights Treaty System, by the Independent Expert Mr Philip Alston, 27 March 1997, UN Doc E/​CN.4/​1997/​74. The Independent Expert was appointed by the Secretary-​ General pursuant to General Assembly resolution 43/​115 of 8 December 1988 and Commission on Human Rights resolution 1989/​47 of 6 March 1989. 49 Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body, 22 March 2006, UN Doc HRI/​MC/​2006/​2.

532  Christine Evans The proposal for a unified standing treaty body failed to gain sufficient political support in the wake of the negotiations for the creation of the Human Rights Council in 2006. Limited progress has been made towards solving the major challenges of duplication and congestion in the treaty body system, with current efforts primarily focused on attempts to harmonize working methods. The treaty body system continues to expand and between 2007 and 2011, three new treaty bodies became operational. Meanwhile, the need for improved coordination is becoming ever more acute. The significant reporting backlog has been and remains especially grave for the Committee as it monitors the most widely ratified human rights treaty. It is also the only Committee to monitor the implementation through reporting on three different treaties:  the Convention and its two Optional Protocols. As the Committee already meets for twelve weeks per year, requesting further weeks of meeting time is not desirable as the attendance and availability of unpaid experts for longer periods would be difficult. The Committee initially sought to deal with the backlog by permitting States parties whose reports were delayed to submit combined reports as an exceptional measure in 2002.50 Over time, the use of this exceptional measure has, however, become more or less continuous in view of the overall delays in the reporting and review cycles. Commonly, the consideration of State reports was delayed two to three years after their submission due to backlogs in scheduling. This in turn raises concern over the general relevance and efficiency of the reporting process as the information submitted by the state, as well as by other stakeholders, must all be updated prior to the Committee review. In view of mounting delays, the Committee sought to apply a new modality by convening in parallel chambers in order to consider twice as many reports. As meeting in dual chambers entailed significant extra resource allocations, a request was presented to the General Assembly, which has approved resources for the Committee to intermittently meet in dual chambers since 2006.51 This practice has allowed the Committee to almost double its capacity to review State party reports.52 The division of members into two parallel chambers takes into account geographical representation and well as professional expertise and gender balance. While the dialogue with States parties is conducted in the chambers, all the Concluding Observations are adopted in plenary. Following the General Assembly resolution 68/​ 268, in November 2016 the Committee started to offer a simplified reporting procedure to certain States parties The procedure aims to reduce two reporting steps to a single step, as States parties will no longer required to submit their written report and then reply to the list of issues

50 Recommendation on Exceptional Submission of Combined Reports, 29th Session, January 2002, UN Doc CRC/​C/​114. 51 General Assembly Resolution 59/​261, 23 December 2004, UN Doc A/​RES/​59/​261; General Assembly Resolution 63/​244, 24 December 2008, UN Doc A/​RES/​63/​244. 52 Note by the Secretary General, Evaluation of the Use of Additional Meeting Time by the Human Rights Treaty Bodies, 27 August 2010, UN Doc A/​65/​317, paras 8–​15; Report of the Committee on the Rights of the Child to the General Assembly, 2006, UN Doc A/​61/​41, paras 31–​33; Report of the Committee on the Rights of the Child to the General Assembly, 2008, UN Doc A/​63/​41, paras 28–​9.

The Committee on the Rights of the Child  533 prior to reporting. States may opt into the simplified reporting procedure on a voluntary basis.53

14.6  Follow-​up Ensuring effective follow-​up at the national level is a principal challenge facing the entire human rights treaty body system, given the limited mandate and capacity of human rights treaty bodies. The Committee issues session reports and biennial reports to the General Assembly on its activities in accordance with Article 44(5) of the Convention. A  fundamental weakness in the system is the lack of effective monitoring by a political body,54 which has proven to be of fundamental importance in the regional human rights systems.55 Another significant obstacle is the low media visibility of treaty bodies, an aspect which is not assisted by the continuous expansion of overlapping mechanisms. Certain treaty bodies have developed written follow-​up procedures, consisting of a request for a separate report from States parties within a year in relation to priority concerns and recommendations.56 In practice, this adds an additional layer of reporting to a system which is already overburdened. The Committee on the Rights of the Child has taken another approach. Where present at the national or regional level, UNICEF and OHCHR actively promotes implementation of the Concluding Observations. The Convention in Article 45(b) specifically mentions that the Committee may transmit requests for technical assistance to specialized agencies. In practice, the Committee regularly recommends in its Concluding Observations that States parties seek technical assistance from UNICEF on a wide range of areas, such as for example legal reform, birth registration, and the development of juvenile justice systems. With the support of UNICEF, individual members of the Committee frequently visit countries that have recently undergone reviews to promote implementation at the national level. During such visits, Committee members meet with government and civil society and support dialogue on ways forward. While such visits are informal and unofficial, they have proven valuable advocacy tools. Furthermore, visits by Committee members provide an opportunity to engage with

53 CRC Press release 31 January 2017. Available at: http://​www.ohchr.org/​EN/​NewsEvents/​Pages/​DisplayNews. aspx?NewsID=21134&LangID=E. 54 M Nowak, ‘The UN High Commissioner for Human Rights: A Link between Decisions of Expert Monitoring Bodies and Enforcement by Political Bodies’ in A Bayefsky (ed), The UN Human Rights Treaty System in the 21th Century (Kluwer Law International, 2000) 251–​4. 55 Open Society Justice Initiative, From Judgment to Justice, Implementing International and Regional Human Rights Decisions (New York, 2010). 56 These include the Human Rights Committee, the Committee against Torture, the Committee on the Elimination of Discrimination against Women and the Committee against Racial Discrimination. See Working Methods of the Human Rights Treaty Bodies Relating to the State Party Reporting Process, 23 May 2011, UN Doc HRI/​ICM/​2011/​4, paras 80–​7. It should be noted that there is no agreement among treaty bodies how to select priority recommendations, while some consider it should be on the basis of urgency, others consider it should be done on the basis of feasible measures which could be taken within a one-​year period.

534  Christine Evans national civil society and media.57 Such visits contribute to raising visibility and awareness of the rights in the Convention among the general public. In addition to visits, the Committee has organized a series of regional follow-​up workshops for government and civil society representatives, with the support of OHCHR, UNICEF and international NGOs. Such workshops have been organized in West Africa (2007), Central America (2006), South America (2005), Middle East (2005) and South East Asia (2004). The rationale for conducting the workshops has been to facilitate exchanges of experiences and best practices as well as to assess progress made. The Committee has additionally sought to draw separate attention to areas that merit particular attention and consideration. Article 45(c) enables the Committee to recommend the Secretary-​General undertake on its behalf studies on specific issues relating to the rights of the child. Examples of such Secretary-​General commissioned studies that were originally initiated by the Committee are the United Nations Report on the Impact of Armed Conflict on Children, presented in 1996, and the United Nations Study on Violence against Children, presented in 2006.58 Both these studies subsequently lead to the creation of Special Representatives of the Secretary-​General (SRSGs) on the above thematic areas. In 2014, the Committee requested the United Nations General Assembly to undertake a global study on the issue of children deprived of their liberty.59 The study was welcomed by the Secretary-​General and initiated in October 2016 through the appointment of an independent expert to lead the study. By resolution 71/​177 the General Assembly has invited the independent expert to submit a final report at its seventy-​ third session in September 2018.60

14.7  Reservations Among the principal challenges impeding the effective implementation of the Convention on the Rights of the Child is the significant number of reservations by States upon ratification or accession. As the Convention is the most widely ratified human rights treaty, it is perhaps predictable that it is also the treaty with the highest number of reservations. The Convention states in Article 51 that reservations may be lodged at the time of ratification or accession, but cannot be incompatible with the object and purpose of the Convention. A significant number of reservations claim that the implementation of the Convention will be restricted by the existing Constitution or national legislation. Such affirmations run contrary to basic principles of public international law. Article 27 of 57 Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body, 22 March 2006, UN Doc HRI/​MC/​2006/​2, para  21. 58 Report of the Expert of the Secretary-​General on the Impact of Armed Conflict on Children, 1996, UN Doc A/​51/​306; UN Secretary-​General’s Study on Violence against Children 2006, UN Doc A/​61/​299. 59 Available at:  http://​www.ohchr.org/​Documents/​HRBodies/​CRC/​StudyChildrenDeprivedLiberty/​ Committee_​on_​CRC_​letter_​%20to_​SG_​19May2016.pdf. 60 Available at: http://​www.ohchr.org/​EN/​HRBodies/​CRC/​StudyChildrenDeprivedLiberty/​Pages/​Index.aspx.

The Committee on the Rights of the Child  535 the Vienna Convention on the Law of Treaties clearly establishes that ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’. The International Law Commission has similarly stated that internal law is irrelevant and may not be used by a State as justification for failure to comply with its obligations.61 Other reservations contain language which refutes any provisions in the Convention which clash with religious and traditional values. Such reservations are incompatible with the core principles of the Convention as they undermine basic rights of non-​discrimination and equality. A number of such reservations refer to Sharia or Islamic law. The Committee has repeatedly expressed concern about laws and practices which claim basis in Sharia and have a serious negative impact on the rights of girls, such as discriminatory personal status legislation, early marriages and polygamy, and the punishment of zina crimes according to hudood.62 State party dialogues have explored aspects of adoption (Article 20), which is subject to multiple reservations as it is not recognized in Islamic law. However, Committee members have pointed out that the Convention specifically recognizes kafalah, the Islamic practice of alternative care for children. As a positive development, an increasing number of states have modified or withdrawn their reservations based on Sharia.63 Moreover, the Holy See lodged a reservation which states that the application of the Convention should be compatible with the Vatican City state and the sources of its objective law. This reservation has also been subject to critique by the Committee.64 Curiously, some of the reservations to the Convention refer to provisions which mirror those of the International Covenant on Civil and Political Rights, to which some of the same states did not enter reservations.65 On the other hand, certain states have lodged reservations and declarations which are favourable to a more progressive interpretation of the rights in the Convention. For example, Argentina, Austria, Colombia, Spain and Uruguay objected to the reference to fifteen years as the minimum age for military service in Article 38, stating they would have supported a higher, preferably eighteen years minimum age limit. The Convention fails to provide any mechanism to address the validity of reservations.66 However, a considerable number of states have lodged objections to 61 International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, adopted 2001, Article 32; ‘Irrelevance of internal law—​The responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligations under this part.’ See also discussion in R Higgins, Problems and Process, International Law and How we Use it (Oxford: Clarendon Press, 1994) 95–​110. 62 Some examples from CRC Concluding Observations (COBs) include: Bahrain COBs, 11 March 2002, UN Doc CRC/​C/​15/​Add.175; Pakistan COBs, 15 October 2009, UN Doc CRC/​C/​PAK/​CO/​4; Oman COBs, 24 June 2009, UN Doc CRC/​C/​OPSC/​OMN/​CO/​1; Maldives COBs, 4 March 2009, UN Doc CRC/​C/​OPSC/​MDV/​CO/​1; Mauritania COBs, 17 June 2009, UN Doc CRC/​C/​MRT/​CO/​2; Afghanistan COBs, 8 April 2011, UN Doc CRC/​C/​ AFG/​CO/​1. 63 Withdrawn or amended reservations based on Islamic law. Examples for CRC include Pakistan (1997), Egypt (2003), Indonesia (2005), Morocco (2006), Tunisia (2008), Djibouti (2009), Qatar (2009), Syrian Arab Republic (2012), Oman (2014), Brunei Darussalam (2015). See the website of the Office of Legal Affairs; available at: http://​ treaties.un.org/​. 64 CRC Concluding Observations on the Holy See, 2005, Un Doc CRC/​C/​15/​Add.46. 65 W Schabas, ‘Reservations to the Convention on the Rights of the Child’ (1996) 18 (2) Human Rights Quarterly 472–​91. 66 Unlike the Convention on the Elimination of All Forms of Racial Discrimination (CERD) which contains an explicit provision (Article 20(2)) which stipulates that ‘a reservation shall be considered incompatible or inhibitive if at least two thirds of the States parties to this Convention object to it.’

536  Christine Evans broad reservations by other States parties. The type of language used in such instances is often along the lines of; ‘Because of their unlimited scope and undefined character these reservations are incompatible with the object and purpose of the Convention and accordingly inadmissible and without effect under international law.’ While their international legal significance is unclear, such objections remain indications of opinio juris. The Committee has noted the formal objections by States parties to wide-​ranging reservations made by other States parties and stated that it commends any action which contributes to ensuring the fullest possible respect for the Convention in all States parties.67 The role of treaty bodies in relation to reservations has been subject to discussion as the various Committees have approached the issue in somewhat different ways.68 The Human Rights Committee and the Committee on the Elimination of Discrimination against Women have explicitly claimed their competence to define the legality of reservations and have on occasion declared such to be incompatible.69 In 2006 and 2007, an Inter-​Committee working group on reservations recommended that all treaty bodies consistently express concern for the maintenance of reservations in conjunction with State party reviews.70 The Committee regularly raises concerns over broad reservations in conjunction with State party dialogues and uses a fairly consistent formula in its Concluding Observations: ‘The Committee regrets the broad nature of the reservation entered by the State party. The Committee recommends, in the light of article 51, paragraph 2, of the Convention, that the State party review the nature of its reservation with a view to withdrawing it, in accordance with the Vienna Declaration and Plan of Action of the World Conference on Human Rights of 1993. The Committee further recommends that the State party seek inspiration from other countries which have either withdrawn similar reservations or not entered any reservations to the Convention.’

14.8 General Comments In a mode similar to that of other treaty bodies, the Committee has developed the practice of issuing General Comments.71 While none were issued during the first ten years of existence of the Committee, it has since adopted twenty-​three (as of May 2018). The General Comments tend to be policy-​oriented, rather than phrased in legal terminology. All General Comments seek to highlight common aspects and challenges in the Committee’s review of State party reports that may require 67 Committee on the Rights of the Child, General Comment No 5 on General Measures of Implementation for the Convention on the Rights of the Child, 2003, UN Doc CRC/​GC/​2003/​5, para 16. 68 A Bayefsky, The UN Human Rights Treaty System, Universality at the Crossroads (The Hague: Kluwer Law International, 2001) 68–​73. 69 W Schabas, ‘Reservations to the Convention on the Rights of the Child’, p 486. 70 Report of the Meeting of the Working Group on Reservations, 9 February 2007, UN Doc HRI/​MC/​2007/​5. 71 While not foreseen in the Convention, the Committee on the Rights of the Child refers to General Comments already in its Provisional Rules of Procedures of 1991, UN Doc CRC/​C/​4, Rule 73.

The Committee on the Rights of the Child  537 additional attention or where there are normative gaps. They may be used as reference in national judicial proceedings and as practical tools for policy development. While not formally legally binding, General Comments carry considerable moral authority and provide states with guidance on how to implement the rights of the Convention in practice.72 For example the General Comment on Article 12, on the right of the child to be heard, provides specific guidance and suggestions on how to incorporate the provision in judicial and administrative proceedings.73 While several General Comments explore a specific provision, the interrelatedness with other provisions is always underlined. The Committee has accepted proposals for General Comments from other interested stakeholders, which partly explains why the order of the General Comments adopted to date may appear somewhat random. The Committee has covered a wide number of provisions spanning civil rights and economic, social and cultural rights, including health, juvenile justice, and corporal punishment. A  specific General Comment has been adopted that explores in depth the type of legal and institutional framework considered by the Committee to be conducive for effective implementation of the Convention.74 General Comments have provided the opportunity for the Committee to emphasize that ‘economic, social and cultural rights, as well as civil and political rights, must be regarded justiciable and . . . it is essential that domestic law sets out entitlements in sufficient detail to enable remedies for non-​compliance to be effective’.75 The Committee develops an initial draft of a General Comment, often in consultation with an external expert on the specific area, and then circulates the draft to other experts in human rights mechanisms, UN agencies, NGOs and academics, for comments before adoption. In 2014, the Committee published its first joint General Comment with the Committee on the Elimination of Discrimination against Women on the issue of harmful practices. A number of the General Comments were initiated following Days of General Discussion, organized by the Committee with the support of OHCHR. Since 1992, these annual or biannual open days of debate have occurred with a variety of stakeholders in attendance, including UN agency and civil society representatives, government officials, academics as well as other treaty body members and special rapporteurs, on a range of different topics. Most of the topics for discussion have been identified as areas requiring further attention and discussion of best practices and suitable approaches. 72 M Verheyde and G Goedertier, A Commentary on the United Nations Convention on the Rights of the Child; Article 43–​5, The UN Committee on the Rights of the Child (Martinus Nijhoff, 2006) 38–​41. For discussion on the origins of General Comments, see P Alston, ‘The Historical Origins of the Concept of General Comments in Human Rights Law’ in L Boisson de Chazournes and V Gowlland-​Debbas (eds), The International Legal System in Quest of Equity and Universality, Liber Amicorum Georges Abi-​Saab (Kluwer Law International, 2001) 763–​76. 73 Committee on the Rights of the Child, General Comment No 12 on The Right of the Child to be Heard, 2009, UN Doc CRC/​GC/​2009/​12. 74 Committee on the Rights of the Child, General Comment No 5 on General Measures of Implementation for the Convention on the Rights of the Child, 2003, UN Doc CRC/​GC/​2003/​5. 75 Ibid, para 25.

538  Christine Evans

14.9  The Optional Protocol on the Involvement of Children in Armed Conflict and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography The two Optional Protocols on the Involvement of Children in Armed Conflict (OPAC) and on the Sale of Children, Child Prostitution and Child Pornography (OPSC) were both adopted on 25 May 2000. Following a swift pattern of ratifications, the Protocols entered into force two years later, OPSC on 18 January 2002 and OPAC on 18 February 2002. Each Protocol contains a reporting obligation, Article 12 in OPSC and Article 8 in OPAC, which require States parties to submit an initial separate report containing comprehensive information on measures taken to implement the provisions of the Protocol. Ratification of each protocol has continued at a steady rate. As at May 2018, OPSC had 174 States parties and OPAC 167 States parties. Both Protocols contain substantive provisions which require States parties to adopt and enforce penal provisions, implement preventive measures, provide reintegration and recovery assistance for victims and provide international cooperation in order to promote implementation. The OPSC expands on Articles 34 and 35 of the Convention by requiring that specific penal provisions be adopted in relation to the sale of children, child prostitution and child pornography (Article 1, 2). The definition of sale of children includes offering, delivering, or accepting a child for the purpose of sexual exploitation, transfer of organs for profit, engagement in forced labour, and improperly inducing consent for adoption (Article 3). Subject to provisions in its national law, each State party shall take measures to establish the liability of legal persons (Article 3(4)). The OPSC (Article 4) also contains specific provisions relating to the applicable jurisdiction over the offences: (1) on the basis of the nationality of the perpetrator; (2) the nationality of the victim; and (3) the presence an alleged offender in a State party. The provisions of the Protocol shall be deemed as extraditable offences between States parties (Article 5). The OPAC draws on and further develops Article 38 of the Convention. The Protocol requires States parties to take all feasible measures to ensure that members of its armed forces under the age of eighteen years do not take direct part in hostilities (Article 1) and that States parties not apply compulsory recruitment to persons under 18 years (Article 2). States parties shall raise the age for voluntary recruitment from that set out in the Convention (ie, fifteen) and deposit a binding declaration indicating the minimum age at which it permits voluntary recruitment. Furthermore, States parties must describe the safeguards in place to ensure that recruitment is genuinely voluntary, carried out with informed consent and based on reliable proof of age (Article 3). Armed groups, distinct from the armed forces of the State, should not under any circumstances, recruit or use in hostilities persons under the age of 18 years. It is the obligation of the States parties to take all feasible measures to prevent such recruitment, including by taking necessary legal measures to prohibit and criminalize such practices. Article 7 refers to the establishment of a voluntary fund to provide assistance for the rehabilitation and

The Committee on the Rights of the Child  539 reintegration of victims of acts contrary to the Protocol. Regrettably, such a fund has to date not been created. The Committee started reviewing State party reports under the Protocols in 2005. Many States parties consider the Protocols to primarily relate to legislation and have failed to undertake practical measures towards their enforcement. In relation to the OPSC, the Committee has found that States parties commonly lack specific penal provisions relating to offences against children. When penal provisions exist they are rarely enforced and fail to result in appropriate penalties which take into account the gravity of the offences. The Committee has expressed concern that in certain countries child victims risk criminalization and stigmatization. It has also found that the possession of child pornography is seldom sanctioned and preventive measures, such as regulations for internet providers, are often inadequate.76 In conjunction with State party reviews under the OPAC, the Committee has strongly encouraged the States parties who permit voluntary recruitment below the age of eighteen years to abolish this practice. Very few States parties have included explicit reference to child recruitment in their criminal codes. While it is positive that a number of States have adopted serious war crimes acts, these generally apply the lower standard of fifteen years as per the Rome Statute of the International Criminal Court. Few states have exercised jurisdiction over alleged offenders of child recruitment. The Committee has expressed serious concern over instances when children themselves have been prosecuted according to military justice for involvement with armed groups. The reporting process under the OPAC and the monitoring and reporting mechanism established by Security Council Resolution 1612 are complementary and efforts have been undertaken to coordinate and mutually reinforce their common objectives.77 In most countries, children who have been victims of violations under both Protocols lack adequate assistance for physical and psychological recovery and social reintegration. The Committee has contributed to raising awareness of this issue and has consistently reminded States parties of their obligations to assist children within their jurisdiction and to undertake international cooperation.

14.10  The Optional Protocol on a communications procedure Discussion on the imperative need to develop a complaints mechanism for the Convention was ignited through civil society advocacy, in particular that of the NGO Child Rights Connect (at the time the NGO Group for the CRC), following the adoption of procedures under the protocols of International Covenant on Economic, Social,

76 Report of the Committee on the Rights of the Child to the General Assembly, 2008, UN Doc A/​63/​41, paras 12–​27; UNICEF Innocenti Research Centre, Handbook on the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, Florence, 2009. 77 Report of the Committee on the Rights of the Child to the General Assembly, 2006, UN Doc A/​61/​41, paras 15–​30, UNICEF/​SRSG Children and Armed Conflict, Machel Ten Year Strategic Review—​Child and Conflict in a Changing World, 2009, pp 55–​65.

540  Christine Evans and Cultural Rights and the Convention on the Rights of Persons with Disabilities.78 In 2008, the Committee formally took a position in favour of a complaints procedure.79 The Committee, with the strong support of civil society organizations, vigorously advocated for opening of negotiations on a Protocol which would establish a complaints mechanism and draft informal texts for such an initiative were discussed and circulated. In June 2009, the Human Rights Council decided to create an open-​ ended working group to explore the possibility of elaborating an optional protocol. The working group discussed several expert contributions.80 Among the arguments put forward in favour of a communications procedure for the Convention was that it is a logical consequence following the recognition of children as rights-​bearers. The Committee, the Independent Expert for the UN Study on Violence against Children and well as the Special Representative of the Secretary-​General on Violence against Children all identified the lack of national remedies for children as a key obstacle to the enjoyment of their rights, suggesting that the creation of an international mechanism would prompt States to take action at the national and local level. The Committee had itself affirmed in 2003 that ‘for rights to have meaning, effective remedies must be available to redress violations . . . where rights are found to have been breached, there should be appropriate reparation, including compensation, and, where needed, measures to promote physical and psychological recovery, rehabilitation and reintegration, as required by article 39  . . .  the Committee emphasizes that economic, social and cultural rights, as well as civil and political rights, must be regarded as justiciable. It is essential that domestic law sets out entitlements in sufficient detail to enable remedies for non-​compliance to be effective.’81 Regarding legal personality and procedural standing, children have been petitioners in numerous human rights cases at the regional level in Europe and the Americas.82 Furthermore, it was argued that measures could be taken to protect the best interests of the child throughout the process and to ensure that the consent of the child was not be unduly influenced. Regarding current communications procedures under treaty bodies, it was observed that very few cases to date have related to children or contain an analysis of children’s rights.83 As noted in context of the Council of Europe, 78 Before the adoption of the CRC Optional protocol on a communications procedure, four human rights treaties included provisions within the instrument itself for a communications procedure; CERD (Article 14), CAT (Article 22), CMW (Article 77 not yet in force), CPPED (Article 31), and four Optional Protocols provided communications procedures for human rights instruments; ICCPR-​OP, CEDAW-​OP, ICESCR-​OP, and CRPD-​OP. 79 Statement by the Chairperson of the Committee on the Rights of the Child, Ms. Yanghee Lee to the 63rd session of the General Assembly, Third Committee on 15 October 2008, available at: http://​www2.ohchr.org/​english/​ bodies/​crc/​index.htm. 80 Written expert contributions from eg, Peter Newell, UN Doc A/​HRC/​WG.7/​1/​CRP.1; Yanghee Lee, UN Doc A/​HRC/​WG.7/​1/​CRP.6; Jean Zermatten, UN Doc A/​HRC/​WG.7/​1/​CRP.8; Paulo Sergio Pinheiro UN Doc A/​ HRC/​WG.7/​1/​CRP.4; Najat Maalla M’jid UN Doc A/​HRC/​WG.7/​1/​CRP.3; Marta Santos Pais, UN Doc A/​HRC/​ WG.7/​1/​CRP.7. 81 General Comment No 5 on General Measures of Implementation of the Convention on the Rights of the Child, 27 November 2003, UN Doc. CRC/​GC/​2003/​5, paras 24–​5. 82 Council of Europe, International Justice for Children, 2008 cited by Peter Newell, UN Doc A/​HRC/​WG.7/​1/​ CRP.1 See also website of the Council for Europe; available at: www.coe.int/​children. 83 Report of the Open-​Ended Working Group to Explore the Possibility of Elaborating an Optional Protocol to the Convention on the Rights of the Child to Provide a Communications Procedure, 21 January 2010, UN Doc A/​HRC/​13/​43, para 78 indicated that only 2 to 2.5 per cent of complaints considered by treaty bodies related to situations involving children.

The Committee on the Rights of the Child  541 ‘current international petition procedures present profound challenges in the context of children’s rights and it is notable that few petitions have been presented on behalf of children, and those that have been have been predominantly aimed at vindicating the rights of parents or carers, rather than the child complainants’.84 In August 2010, the Chairperson of the open-​ended working group proposed a new Optional Protocol.85 The admissibility criteria were relatively standard compared to existing treaty body complaints procedures. However, the draft text contained several innovative features such as provisions to ensure that the best interests of the child be a primary consideration, including a collective communications procedure and a friendly settlement process through the good offices of the Committee. It also contained protection measures against reprisals, interim measures for victims, and an inquiry procedure for grave and systematic violations largely modelled on the Optional Protocol of CEDAW.86 The second session of the open-​ended working group negotiated a text which was submitted to the Human Rights Council. The Optional Protocol was subsequently adopted by the Council in June 2011 and by the General Assembly in 2011. The final Optional Protocol contains most of the elements that were initially proposed, although it fails to retain a collective procedure and does not explicitly exclude reservations. The relatively swift negotiation process was largely achieved due to the strong joint advocacy by a wide range of stakeholders, including civil society organizations, notably Child Rights Connect, various independent experts and representatives of the regional human rights systems. The UN High Commissioner for Human Rights expressed public support for the initiative. The Optional Protocol entered into force in April 2014 and had thirty-​nine State parties as of May 2018. The Committee may now consider individual complaints that allege a violation of the rights of an individual or a group of individuals under the Convention or the Optional Protocols, as long as the state alleged to have violated such rights is party to the relevant agreement. The Committee reviews individual complaints in accordance with the Rules of Procedure adopted under the Protocol. Since the new procedure is still in its early stages, and any communications are reviewed by the Committee in closed meetings, it is difficult to determine the effectiveness or otherwise of the new procedure so far. By May 2018, three individual complaints had been found to be inadmissible. The civil society organizations who advocated for the communications procedure have placed high expectations on its expediency. However, ensuring that a technical, lengthy and largely bureaucratic written procedure is child-​sensitive in practice faces clear difficulties. While the use of the good offices of the Committee for 84 J Connors, ‘The United Nations Monitoring Bodies and the Protection of Children’s Rights’, speech delivered at the Council of Europe Conference on International Justice for Children, Strasbourg, 17–​18 September 2007, available at: www.coe.int/​t/​dg3/​children/​JusticeSpeeches/​defaultConferneceJuvenile1_​en.asp. 85 Proposal for a Draft Optional Protocol Prepared by the Chairperson of the Open-​Ended Working Group, UN Doc A7HRC/​WG.7/​2/​2. 86 A Byrnes and J Connors, ‘Enforcing the Human Rights of Women:  A Complaints Procedure for the Convention on the Elimination of All Forms of Discrimination against Women’ (1996) 21 (3) Brooklyn Journal of International Law 679–​797.

542  Christine Evans friendly settlements is a novel and progressive approach, it may place strain on the limited capacity of the Committee and result in the large-​scale submission of cases which are essentially private law matters, such as custody cases. Nevertheless, the Optional Protocol is important proof that children are recognized as rights-​bearers in international law, and is likely to prompt significant action at the national level by the creation of more efficient, accessible and child-​friendly domestic remedies.

14.11  Relationship with other human rights mechanisms and UN entities The Committee has a number of key partners who share a common objective and play an important role in advocating for the rights of children. As mentioned above, OHCHR acts as the Secretariat for the Committee, as well as for all other human rights treaty bodies, and provides it with both administrative and substantive support. OHCHR plays a particularly valuable role through its field work. In 2018, there were over sixty OHCHR field presences in various formats, including national and regional offices, human rights advisors within UN Country Teams and human rights components of peace missions. At the national level, OHCHR disseminates information about treaty body recommendations, facilitates national dialogue between various stakeholders and follows up with authorities. OHCHR regularly organizes workshops and seminars on specific thematic areas and undertakes capacity building projects to raise awareness and stimulate debate on how to improve implementation of human rights standards and strengthen human rights mechanisms.87 UNICEF’s rights-​based approach on the basis of the Convention makes it a key partner in promoting national implementation. Article 45 of the Convention specifically contemplates the role of UNICEF in the provisions of international cooperation and technical assistance. Through extensive national presences and activities in some 190 countries, it can advocate directly and work closely with authorities in the provision of technical assistance covering a broad range of areas. As previously noted, UNICEF participates actively in the State party reporting process by the submission of information to the Committee and attendance at State party dialogues. In return, the Convention provides a solid legal framework for UNICEF’s programme activities and provides a valuable tool to monitor the international obligations of States. UNICEF uses the Committee’s Concluding Observations as an advocacy tool at the national level vis-​à-​vis authorities to prompt action and underline their legal commitments and responsibility. UNICEF has also taken on a proactive national monitoring role of the OPAC following the adoption of the Security Council Resolution 1612 in 2005. The Committee regularly meets with senior UNICEF staff and has received significant support which has enabled it to undertake numerous thematic consultations and regional workshops.

87 OHCHR Strategic Management Plan 2010–​2011, pp 36–​44.

The Committee on the Rights of the Child  543 All human rights treaty bodies address issues relating to children’s rights and the Committee engages regularly with other Committees on this basis. A joint meeting of Committee Chairpersons is held annually to discuss aspects relating to working methods which require harmonization and consistency.88 However, the lack of delegated authority to Committee representatives attending the meeting on behalf of the Committees has impeded significant progress and issues tend to be re-​discussed repeatedly. The Committee has a particularly close relationship with CEDAW because of the overlapping substantive provisions in the two treaties. As some of their sessions occur at the same time, members of the two Committees meet both formally and informally. In 2014, a joint general recommendation/​general comment No. 31 of the Committee on the Elimination of Discrimination against Women and No. 18 of the Committee on the Rights of the Child on harmful practices was adopted.89 The Committee has a particularly close relationship with the two SRSGs on Children and Armed Conflict and Violence against Children. While both SRSGs are based in New York, regular communication is sustained in relation to thematic and country specific areas of work. The Committee and the SRSGs seek to coordinate advocacy efforts, for example on the Optional Protocol for a communications procedure. In 2010, on the tenth anniversary of the adoption of the first Optional Protocols, a joint advocacy campaign was undertaken by the SRSGs and the Committee to promote their universal ratification (together with UNICEF and the Special Rapporteur on the Sale of Children). The Committee also regularly interacts with Special Procedures appointed by the Human Rights Council, in particular, but not only, with the Special Rapporteurs whose mandates cover the Sale of Children, Education and Housing. The Committee has often invited Special Rapporteurs as key speakers at Days of General Discussion. The Committee also regularly encourages states to invite Special Procedures to visit and, when applicable, refers to mission reports by Special Procedures during dialogues with States parties. Special Procedures often encourage states to ratify the Optional Protocols, comply with their reporting obligations, and follow up on recommendations issued by the Committee. In this sense, the two mechanisms mutually reinforce common objectives. The Universal Periodic Review (UPR) process in the Human Rights Council,90 initiated in 2008, provides an additional follow-​up mechanism, albeit in a political intergovernmental setting. The recommendations by treaty bodies constitute an integral part of the compilation document prepared by OHCHR. However, the process is a peer-​review among states rather than an independent expert mechanism. The 88 See for example Report to the General Assembly of the Chairs of the Human Rights Treaty Bodies on their Twenty-​Eighth Meeting, June 2016, UN Doc A/​71/​270. OHCHR regularly also provides a comparative overview of working methods. 89 Joint general recommendation/​ general comment No 31 of the Committee on the Elimination of Discrimination against Women and No 18 of the Committee on the Rights of the Child, UN Doc CEDAW/​C/​GC/​ 31/​CRC/​C/​GC/​18, 14 November  2014. 90 Human Rights Council resolution 5/​1 adopted on 18 June 2007, A/​HRC/​RES/​5/​1, Annex paras 1–​38.

544  Christine Evans ability of states to reject certain recommendations in the context of the UPR is cause for concern. Lastly, regional mechanisms provide additional cooperation partners. This is an area where there is room for closer cooperation, particularly with the Inter-​American human rights system. The proximity between Strasbourg and Geneva on the other hand has enabled regular contact between the Committee and the Council of Europe. The African human rights system has created a specific regional treaty, the African Charter on the Rights and Welfare of the Child (EIF 1999) and an Expert Committee to monitor its implementation. The two Committees seek to exchange information about their practices and have met jointly in Geneva and Addis Ababa to discuss further avenues for cooperation. In early 2011, the Committee met for the first time the ASEAN Commission on the Protection and Promotion of the Rights of Women and Children with a view to identifying possibilities for collaboration in the Asian region.

14.12  Impact of the Convention at the national level The Convention is arguably the human rights treaty that has had the greatest impact at the national level. The vast majority of countries, even those with a varied human rights record, express their intention to take actions in favour of children. Where genuine will to address human rights issues comprehensively is lacking, children’s rights may be a door-​opening avenue to deal with human rights issues. Studies have been conducted on the impact of the Convention at the national level, primarily focussing on areas of general measures of implementation. The incorporation of the Convention in national legislation in numerous countries has resulted in many examples of positive impact, with UNICEF describing the role of the Convention in law reform as catalytic.91 While legislative amendments merely provide a first step towards concrete change, they nevertheless provide the essential ground upon which advocacy and policy changes are based. The Convention has been translated into national legislation through the adoption of Children’s Codes or Bills in numerous countries. A comprehensive study conducted by UNICEF in 2007 of more than sixty countries concluded that in more than two thirds, the Convention has been directly incorporated into national law and courts have emitted decisions applying the provisions of the treaty. Examples of countries that have adopted such Codes or Bills during the past decade include Mozambique (2008), Sierra Leone (2007), Colombia (2006), Uruguay (2004), Nigeria (2003), Indonesia (2002), Kenya (2001), and Malaysia (2001).92 Furthermore, many countries have adopted specific legislation in a variety of areas to ensure that, for example, primary education is compulsory and free, labour legislation 91 UNICEF Innocenti Research Centre, Study on the Impact of the Implementation of the Convention on the Rights of the Child (Florence, 2004); see also C Heyns and F Viljoen, The Impact of the United Nations Human Rights Treaties on the Domestic Level (Kluwer Law International, 2002). 92 UNICEF Innocenti Research Centre, Law Reform and Implementation of the Convention on the Rights of the Child (Florence, 2007).

The Committee on the Rights of the Child  545 sufficiently regulated, and that specific penal provisions protect children from sexual abuse and exploitation. Further areas where many countries have made progress in implementing the Convention can be seen in the creation of national coordination mechanisms, the establishment of independent national human rights institutions, and the adoption of national action plans for children. The UN Study on Violence against Children documented significant progress in the development of legislation to protect children and some increased availability of child-​sensitive counselling services. While considering the impact of the Convention, it should also be acknowledged that various inter-​ related factors contribute to prompting authorities to undertake changes, including other international and regional human rights mechanisms and national stakeholders, including the judiciary, national NGOs, academia and the media.

14.13 Concluding remarks The Committee on the Rights of the Child faces significant obstacles in ensuring that its overburdened reporting process remains relevant and accessible in view of the considerable backlog and delays in conducting State party reviews. In order to enhance implementation of the Convention, timely consideration of reports is crucial as is the need to prioritize among the issues addressed. It is a positive development that child rights have become mainstreamed in various human rights mechanisms, including other treaty bodies. However, consideration should be given to the duplication among mechanisms and how mutual concerns and recommendations can be reinforced vis-​à-​vis the State party in a coordinated manner. The impact of the Convention on the Rights of the Child is irrefutable. The Convention is the most widely ratified and well-​known human rights treaty and has signified a clear shift in recognizing children as rights-​holders. Further emphasis on implementation at the national level is essential. UNICEF and the strong worldwide constituency of civil society organizations who tirelessly continue to advocate for children’s rights play an invaluable role in bringing rights to bear. Shifting from standard-​setting to implementation on the ground remains the key challenge in order to achieve the ultimate objective: ensuring that all children can enjoy and exercise their human rights in practice.

15 The Committee on the Rights of Persons with Disabilities Janet E Lord and Michael Ashley Stein

15.1  Introduction The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), together with its Optional Protocol, was adopted by consensus by the General Assembly on 13 December 2006.1 The UNCRPD protects the rights of the world’s largest minority, more than one billion persons with disabilities.2 Long pushed to the margins of society, historically neglected even within the United Nations human rights system and mainstream human rights practice, persons with disabilities have faced systemic discrimination in every aspect of life. Their rights ignored or gravely abused, disability advocates made the case for the development of a core human rights convention that would address in detail the barriers they face and provide guidance on how to systematically remove these artificial impediments and facilitate full inclusion. The United Nations answered that call in 2001, at the suggestion of Mexico, with the establishment of an Ad Hoc Committee to consider proposals for a treaty as part of a resolution introduced before the General Assembly. The four-​year effort (2002–​ 2006) culminated in the adoption of the first legally binding international human rights instrument specifically addressing the rights of persons with disabilities and establishing a monitoring mechanism and other institutional arrangements to facilitate its implementation. The UNCRPD opened for signature on 30 March 2007 and rapidly entered into force on 3 May 2008, along with its Optional Protocol. There are 160 signatories to the UNCRPD and 162 ratifications to date. The entry into force of the UNCRPD triggered the establishment of a monitoring Committee on the Rights of Persons with Disabilities 1 Convention on the Rights of Persons with Disabilities, GA Res 61/​106, 2007 (hereinafter UNCRPD); Optional Protocol to the Convention on the Rights of Persons with Disabilities, GA Res 61/​106, 2007 (hereinafter Optional Protocol). For more on the CRPD, see R Kayess and P French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’, (2008) 8 Human Right Law Review; MA Stein and J Lord, Future Prospects for the United Nations Convention on the Rights of Persons with Disabilities, in Gerard Quinn and Oddny Mjöll Arnardóttir (eds), The UN Convention on the Rights of Persons with Disabilities:  European and Scandinavian Perspectives (Martinus Nijhoff Publishers, 2009) 22; United Nations, From Exclusion to Equality: realizing the rights of persons with disabilities. Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities and its Optional Protocol (Geneva: UN, 2007). 2 World Health Organisation & World Bank, World Report on Disability (Geneva: WHO, 2011).

548  Janet E Lord and Michael Ashley Stein (CRPD, or alternatively the Committee), and thus makes the Treaty one of the core human rights conventions.3 The purpose of this chapter is to outline the intended purposes and functions of the CRPD as set forth in the UNCRPD and its Optional Protocol, identify in summary form the substantive issues that the CRPD will have to address in the course of its work, project a preliminary assessment of its jurisprudence, and briefly forecast the main opportunities and challenges facing the Committee.4

15.2  Establishment, composition, and administration of the Committee The criteria for CRPD membership require individuals ‘of high moral standing’ with ‘recognised competence and experience’ in matters covered by the UNCRPD, who will ‘serve in their personal capacity’.5 States parties are encouraged to consult closely with and actively involve persons with disabilities in nominating their own nationals for Committee election at the annual Conferences of States Parties.6 The guidelines for the overall composition of the CRPD are standard for human rights treaty bodies except for the provision of experts with disabilities.7 This was a contentious component of the negotiations on treaty-​body composition. Proposals by disabled peoples’ organizations (DPOs) favoured enhanced participation of persons with disabilities on the Committee, ranging from the requirement that the body be composed in its entirety of persons with disabilities, that the Chair be a person with a disability, or that the majority of the membership have a disability.8 No consensus was reached on this issue, resulting in a much weaker standard of ‘due consideration’ for representation on the CRPD by persons with disabilities.9 Beyond disability representation, the provisions also require States parties to consider, in terms of the overall composition of the Committee, geographic, cultural, gender, and legal system diversity.10 A review of existing human rights treaty bodies within the United Nations human rights system reveals differential levels of expertise, representation, and independence among Committee members. Moreover, the heavy workloads of some members outside their Committee responsibilities results in disparate degrees of productivity. The drafters of the UNCRPD did not, however, take up the suggestion of the United Nations Office of the High Commissioner for Human Rights (OHCHR) for the inclusion of a 3 UNCRPD, Article 45(1) and 45(2); Optional Protocol, at Article 13(1). As of this writing, ninety-​two States have ratified the Optional Protocol which entered into force with the UNCRPD. 4 For a more elaborate treatment, including the origins of the Committee, various proposals for its mandate, and other aspects of monitoring, see MA Stein and J Lord, ‘Monitoring the Convention on the Rights of Persons with Disabilities: Innovations, Lost Opportunities, and Future Potential’, (2010) 32 HRQ 3, at 689–​728. 5 UNCRPD, Article 34(3). 6 Ibid, Articles 4(3) 34(5). 7 Cf Convention on the Elimination of All Forms of Discrimination against Women, Article 17, G.A. Res. 34/​ 180, U.N. GAOR, 34th Session, Supp No 46, at 193, UN Doc A/​34/​46 (1981) [hereinafter CEDAW]. 8 See Stein and Lord, above n 4, 697. 9 UNCRPD, Article 34(3). The overwhelming practice of states has been to nominate persons with personal experience of disability to the Committee. 10 Ibid, Article 34(4).

The Committee on the Rights of Persons with Disabilities  549 vetting process within the States parties nomination process to ensure sufficient expertise and qualifications.11 It is hoped that such a procedure can be developed, perhaps pursuant to a decision of the Conference of States parties. It is likewise hoped that the Committee will continue to be comprised principally of experts with disabilities. Following the entry into force of the UNCRPD, the Conference of States Parties elected the Committee’s initial twelve experts in 2008. In 2010, when an additional sixty ratifications were attained, CRPD membership expanded to its maximum number of eighteen experts who began their terms in 2011.12 Such flexible expansion afforded opportunities to build a membership possessed of cross-​disability expertise and experience, in addition to specialized human rights expertise in the light of the UNCRPDs comprehensive framework.13 The Secretary-​General is required to notify States parties four months before each election that they have two months in which to submit nominations, and shall prepare and provide to States parties an alphabetical list of nominees, identifying the States parties that nominated them.14 At the Conference of States parties meetings, States parties elect Committee members by secret ballot from among the nominees,15 giving weight to diversity considerations as noted above, including disability.16 Two-​ thirds of States parties are required to reach a quorum at meetings of the Conference of States Parties; nominees elected membership to the CRPD are persons who receive the greatest number of votes as well as an absolute majority of votes cast by present and voting States parties representatives.17 Committee members are elected to four-​year terms, and are eligible for re-​election once.18 Significantly, the incorporation of term limits is designed to ensure the vitality, impartiality, and independence of the CRPD and respond to critiques that the absence of term limits in most treaty bodies compromises the long-​term independence of the body and can serve to inhibit its dynamism. The imposition of term limits was supported by the OHCHR and was also reflected in the International Convention for the Protection of All Persons from Enforced Disappearance, under negotiation during the same time period.19 Elections are staggered so as to ensure partial continuity of membership. In the event a CRPD member must be replaced, the State party which nominated that expert shall appoint a qualified successor for the remainder of the term.20 11 See OHCHR, Expert paper on existing monitoring mechanisms, possible relevant improvements and possible innovations in monitoring mechanisms, (submission to the 7th Session of the Ad Hoc Committee), UN Doc A/​ AC.265/​2006/​CRP.4, 6, para 19 [hereinafter OHCHR Expert Paper) available at: . 12 UNCRPD, Article 34(2). 13 For biographies of CRPD experts, see Elected Members of the Committee on the Rights of Persons with Disabilities, available at: http://​www.ohchr.org/​EN/​HRBodies/​CRPD/​Pages/​Membership.aspx. 14 UNCRPD, Article 34(6). 15 Ibid, Article 34(5). 16 Ibid, Article 34(4). 17 Ibid, Article 34(5). 18 Ibid, Article 34(7). 19 See OHCHR Expert Paper, above n 11, 6, para 17; International Convention for the Protection of All Persons from Enforced Disappearance (CED), E/​CN.4/​2005/​WG.22/​WP.1/​Rev.4 (2005), Article 5(4). 20 UNCRPD, Article 34(9).

550  Janet E Lord and Michael Ashley Stein The Committee established its own procedural rules, consistent with other treaty bodies, and at October 2019 has convened twenty-​two sessions.21 In doing so, the CRPD drew from best practices of existing treaty bodies. In addition, the Committee tailored its procedural rules to the context of disability. For example, Rule 7 requires full accessibility for the CRPD members, but also has implications for persons with disabilities participating in or monitoring CRPD activities. Other potential measures for enhancing the CRPD’s productivity through procedural rules is the creation of subsidiary bodies such as working, thematic, and technical advisory sub-​groups, authorized by the Committee’s Rules of Procedure. While the Committee has assumed the practice of working groups and assigning intersessional tasks to members, the fast pace of law reform that is so often at odds with CRPD requirements warrants mechanisms for additional State party guidance. The commissioning of additional working sub-​groups, including expert groups consisting of non-​Committee members who are nonetheless expert in disability law and policy, that could service the Committee on particular issues, ought to be considered.22 These working methods may be particularly important given the traditional dearth of meeting time allocated for these bodies to conduct their work. Of serious concern, however, is the existing backlog and shortage of time available for the Committee to do its work. Some changes have been made to address an already significant backlog, including the addition of a week, but this has not significantly reduced the reporting workload. The Secretary-​General is tasked to provide the CRPD with sufficient staffing and facilities to effectively perform its duties.23 The OHCHR is responsible for servicing the CRPD, consistent with other human rights treaty bodies. CRPD members are entitled to the same benefits and immunities as are other United Nations experts on mission,24 and upon General Assembly approval, may receive appropriate emoluments.25 The OHCHR, in preparation for the commencement of the Committee’s work in 2009, designed and implemented a training session for its staff to ensure that CRPD members with disabilities would be appropriately accommodated during the course of their work at OHCHR Headquarters in Geneva. Such training should likewise enable disability advocates to engage productively with the Committee.

15.3  General task of interpreting the UNCRPD The UNCRPD was consciously modelled on recent United Nations human rights conventions that incorporate civil and political as well as economic, social, and cultural rights. It bears closest resemblance to the Convention on the Rights of the Child 21 Ibid, Article 34(10)-​(11). See CRPD, Rules of Procedure of the Committee on the Rights of Persons with Disabilities, 13 August 2010. 22 UNCRPD, at Article 38. 23 Ibid. 24 Ibid, Article 34(13). 25 UNCRPD, at Article 34(1) and (2). Disappointingly, the issue of travel allowances occupied a considerable amount of time in early sessions, cutting into the substantive work of the Committee.

The Committee on the Rights of Persons with Disabilities  551 (CRC) insofar as it articulates a comprehensive catalogue of human rights obligations and applies them to the specific circumstances of a particular group, here, persons with disabilities.26 That said, the CRPD diverges in many respects from the CRC, reflecting, in part, the progressive development of human rights law and practice in the year’s since the CRC and other core treaties were adopted. The overall structure of the UNCRPD is likewise similar to preceding human rights treaties, and in particular the CRC, with some notable divergence. Introductory articles set out definitions27 and, notably for a human rights treaty, the CRPD’s explicit purpose.28 Following the introductory articles are seven articles of general application, that is, provisions that have application across the treaty.29 These articles outline principles and obligations that are relevant to the understanding, interpretation and implementation of all other articles in the UNCRPD. It will be the task of the Committee to ensure that interpretation and implementation of the entire UNCRPD is consistent with the principles and obligations articulated in these articles, even when the text of a subsequent substantive article does not expressly articulate those requirements. For example, the Committee will need to bear in mind the principles of participation and autonomy, when interpreting the right of equal access to health.30 The next twenty-​one articles address the full spectrum of substantive obligations and how they are to be understood and applied in the disability context so that persons with disabilities can fully enjoy their human rights.31 Implementation and monitoring measures are set forth in ten subsequent articles,32 and the final provisions address rules governing the operation of the UNCRPD, including, inter alia, its entry into force, amendments, and the official languages in which the UNCRPD is available.33 The Optional Protocol governs communications and procedures of inquiry.34

(a)  Purpose and definitions Article 1 defines the treaty’s purpose ‘to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’.35 It conceives of disability as being inclusive of, but not limited to, ‘long-​term physical, mental, intellectual or sensory impairments’.36 Thus, the CRPD may circumvent the type of narrow readings of the definition of disability that has cramped American and European jurisprudence. 26 Convention on the Rights of the Child (CRC), G.A. res 44/​25, annex, 44 UN GAOR Supp (No 49) at 167, UN Doc A/​44/​49 (1989), entered into force on 2September 1990. 27 UNCRPD, at Article 2. 28 Ibid, Article 1. 29 Ibid, Articles 3–​9. 30 See general, ibid, Article 25. 31 See ibid, Articles 10–​30. 32 See ibid, Articles 31–​40. 33 See ibid, Articles 41–​50. 34 See Optional Protocol, above n 1. 35 UNCRPD, Article 1. 36 Ibid.

552  Janet E Lord and Michael Ashley Stein The UNCRPD also establishes disability as a social category that arises from ‘interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’ rather than as an inherent limitation.37 This latter reference is significant because it directs the Committee toward an understanding of disability as a natural and universal phenomenon of human diversity, and underscores the broad purpose of the CRPD to ensure full social participation. Moreover, because the CRPD sets forth this conceptual norm in the purpose article, it would follow that states may not enter permissible reservations to the normative contents of this article. Due to political considerations, including deference to the divergent legal and cultural contexts of State parties, ‘disability’ is not directly defined in Article 2. However, the UNCRPD acknowledges the social construction of disability in two separate provisions.38 Along the same lines, the UNCRPD takes a broad approach when defining the terms ‘communication,’ ‘language,’ and ‘universal design’.39 Nevertheless, given the wide disparity in state-​reported incidence of domestic level disability, there is reason to be concerned that states will continue to under-​report these figures. It is therefore essential that the Committee, while giving adequate deference to cultural norms, ensures that states meet the UNCRPD’s minimum definitional threshold. Two disability-​specific terms are defined and are central to the interpretation of the principle of non-​discrimination under human rights law as it applies to persons with disabilities. ‘Discrimination on the basis of disability’ includes ‘any distinction, exclusion or restriction on the basis of disability’ that ‘has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms’ and extends to ‘all forms of discrimination, including denial of reasonable accommodation’.40 Crucially, the failure to provide reasonable accommodation when required to do so constitutes prohibited discrimination. ‘Reasonable accommodation’ is defined under the UNCRPD as ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden’ that can ensure to disabled persons ‘the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’.41 By defining discrimination on ‘the basis of disability’, the UNCRPD tracks the broader notion of status-​based discrimination associated with other minorities, such as persons of colour, or women. Similarly, by defining discrimination as encompassing any act that has either discriminatory ‘purpose or effect’, the UNCRPD sidesteps the often problematic dichotomy in European disability law that differentiates direct and indirect discrimination in the context of reasonable modification, and its attendant remedies. The strength of the Convention in this context is its focus on discrimination and the provision of reasonable accommodation and not whether such discrimination is direct (eg, legislation which explicitly limits rights on the basis of disability) or

37 Ibid at Article 1

38 See ibid, preambular paragraph (e); Article 1. 39 See ibid, Article 2. 40 Ibid. 41 Ibid.

The Committee on the Rights of Persons with Disabilities  553 indirect (eg, legislation, which, though not directly limiting rights on the basis of disability, nonetheless has the effect of limiting rights). The Committee signalled in its first concluding observation on equality and non-​discrimination that it would emphasize the necessity of ensuring that disability discrimination legislation is clear and unequivocal in expressing that the failure to provide reasonable accommodation amounts to discrimination and that it applied across the board—​in relation to all rights.42 In subsequent concluding observations, the Committee continues to note the inadequacy of domestic legislation that so often may address discrimination on the basis of disability, either explicitly or indirectly, without, however, including the duty to provide reasonable accommodation as an element of non-​discrimination.43

(b)  Articles of general application Although the explicit articulation of general principles is a common feature of international environmental agreements44 and other framework conventions,45 the UNCRPD is unique among core international human rights conventions in its articulation of general principles. Article 3 defines the Treaty’s general principles to include respect for individual dignity, autonomy, and independence;46 respect for difference and acceptance of disability as human diversity;47 non-​discrimination;48 equal opportunity;49 complete and meaningful social participation;50 accessibility;51 sexual equality;52 respect for children’s rights and support of their evolving capabilities.53 It will be for the Committee in its jurisprudence to meet the interpretive challenge offered by Article 3 as an article of general application.54 While several of the principles identified do indeed represent rules of a general and fundamental character which may be given more

42 CRPD, ‘Consideration of Reports submitted by States under Article 35, Concluding Observations—​Tunisia’ (13 May 2011): available at: https://​www.refworld.org/​docid/​549927854.html (accessed 25 October 2019). 43 See, for example, CRPD, ‘Consideration of Reports submitted by States under Article 35, Concluding Observations—​Azerbaijan (12 May 2014), para 13; CRPD, ‘Consideration of Reports submitted by States under Article 35, Concluding Observations—​Qatar (2 October 2015), para 12; CRPD, ‘Consideration of Reports submitted by States under Article 35, Concluding Observations—​Mexico (27 October 2014), para 10. Concluding observations are available at: http://​tbinternet.ohchr.org/​_​layouts/​treatybodyexternal/​Download.aspx?symbolno =CRPD%2fC%2fKOR%2fCO%2f1&Lang=en. 44 See, for example, United Nations Framework Convention on Climate Change, 9 May 1992, entered into force 24 March 1994, reprinted in 31 ILM 849 (1992), Article 4(1)(i). 45 See, for example, WHO Framework Convention on Tobacco Control, UN Doc A56/​8. Geneva: WHO, 2003 Article 3. 46 UNCRPD, Article 3(a). 47 Ibid, Article 3(d). 48 Ibid, Article 3(b). 49 Ibid, Article 3(e). 50 Ibid, Article 3(c). 51 Ibid, Article3(f). 52 Ibid, Article 3(g). 53 Ibid, Article 3(h). 54 In particular, the CRPD will need to discern which of Article 3’s principles are capable of meaningful application in the particular substantive articles within the meaning ascribed to general principles by the International Court of Justice in Gulf of Maine Case (1984), ICJ Rep 246, 288–​90.

554  Janet E Lord and Michael Ashley Stein specific application in the substantive provisions contained in the UNCRPD, others, such as respect for difference, may be more difficult to specifically apply.55 The CRPD could help draw out the transformative potential of Article 3 as an interpretive tool and framework for achieving substantive equality with an early General Comment on the provision. Provided the Committee gives detailed guidance on the application of Article 3 to specific provisions in the UNCRPD, the provision can serve to enhance the disability rights jurisprudence of the European Court of Human Rights and the more progressive work of the European Committee on Social Rights, among other international and national courts.56 The general obligations of States parties specified in Article 4 require States parties to undertake measures to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability.57 In relation to economic, social, and cultural rights, States parties are obliged to take measures to realize these rights progressively to the maximum extent of available resources.58 In this respect, it will be important for the Committee to monitor carefully the actions of States parties to take immediate steps toward the fulfilment of their obligation and to underscore that the principle of progressive realization is not an escape clause for circumventing UNCRPD obligations.59 In keeping with treaty-​body jurisprudence, this will require States parties to ‘move as expeditiously and effectively as possible’ towards full realization of rights60 and it would behove the CRPD to press for vigorous budgetary analyses by States parties, national human rights institutions (NHRIs) and non-​governmental organizations (NGOs). Some attention has been given to this issue in the recent work of the Committee.61 More specifically, Article 4 obliges States parties to: (i) adopt legislative, administrative and other measures to implement UNCRPD rights; (ii) abolish or amend existing laws, regulations, customs and practices that discriminate against persons with disabilities; (iii) adopt an inclusive approach to protect and promote the rights of persons with disabilities in all policies and programmes; (iv) refrain from conduct contrary to the UNCRPD and ensure that the public sector respects the rights of persons with disabilities; (v)  take measures to abolish disability discrimination by persons, organizations or private enterprises; (vi) undertake research and development of 55 See UNCRPD, Article 3 (d). 56 See generally C O’Cinneide, ‘Extracting Protection for the Rights of Persons with Disabilities from Human Rights Framework—​Established limits and new possibilities’, in Arnardottir and Quinn, above n 1, 163. 57 UNCRPD, Article 4(1). 58 Ibid, Article 4(2). 59 For more on the application of economic, social and cultural rights in the context of the CRPD, see J Lord and R Brown, ‘The Role of Reasonable Accommodation in Securing Substantive Equality for Persons with Disabilities: The UN Convention on the Rights of Persons with Disabilities’ in M Rioux, L Basser, and M Jones (eds), Critical Perspectives on Human Rights and Disability Law (Martinus Nijhoff Publishers, 2011), 273. 60 UN Comm on Economic, Social, and Cultural Rights, ‘Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’, General Comment 3, 20, HRI/​GEN/​1/​Rev.5 (26 April 2001). 61 See CRPD, ‘Consideration of Reports submitted by states under Article 35, Concluding Observations—​ Mexico (27 October 2014), para 10 (recommending the allocation of different budget lines to meet equality targets and undertake specific actions to combat discrimination).

The Committee on the Rights of Persons with Disabilities  555 accessible goods, services and technology for persons with disabilities and to promote others to undertake such research; (vii) provide accessible information about assistive technology to persons with disabilities; (viii) promote professional and staff training on UNCRPD rights for those working with persons with disabilities; and (ix) consult with and involve persons with disabilities in developing and implementing legislation and policies and in decision-​making processes concerning persons with disabilities.62 This last provision lies at the heart of the UNCRPD’s aspirational mandate of full participation by persons with disabilities and their representative organizations in the development and implementation of the UNCRPD at domestic and international levels. It is therefore crucial for the Committee to monitor and enforce this participatory right on behalf of persons with disabilities. Article 5 requires States parties to ensure the equality of individuals with disabilities as well as prohibit discrimination based on disability status.63 Although the linked concepts of equality and non-​discrimination are fundamental and fairly ubiquitous to human rights instruments, they are not univocally understood and have been subjected to varying interpretation.64 The three main normative theories of equality (and by implication, non-​discrimination) are (i) formal equality wherein similarly situated persons are treated similarly; (ii) equality of opportunity which utilizes special measures to ensure that individuals historically denied opportunities can now equally access them; and (iii) substantive equality which gauges whether targeted individuals achieve de facto equality.65 The UNCRPD cuts through these distinctions and, instead, articulates broad equality mandates for persons with disabilities. Article 5 requires recognition by States parties ‘that all persons are equal before and under the law’ and thus entitled ‘to the equal protection and equal benefit of the law’ free of any discrimination.66 States parties must also ‘prohibit all discrimination on the basis of disability’ while guaranteeing that persons with disabilities have ‘equal and effective legal protection’ against all forms of discrimination.67 At the same time, in order ‘to promote equality and eliminate discrimination,’ States parties are required to ‘take all appropriate steps to ensure that reasonable accommodation is provided’.68 This, then, links the non-​discrimination requirement to the requirement to provide positive (substantive equality) measures in the form of reasonable accommodations. Article 5, moreover, provides that any specific measures that ‘are necessary to accelerate or achieve de facto equality of persons with disabilities’ may not themselves be construed as discriminatory.69 62 UNCRPD, Article 4(1)–​4(3). 63 Ibid, Article 5. 64 Compare, for example, the different conceptions of disability-​based equality presented in A Silvers, D Wasserman, and M Mahowald (eds), Disability, Difference, Discrimination: Perspectives on Justice in Bioethics and Public Policy (Rowman & Littlefield, 1998). 65 See G Quinn and T Degener, ‘Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability’ (2002), 16–​18. 66 UNCRPD, Article 5(1). 67 Ibid, Article 5(2). 68 Ibid, Article 5(3). 69 Ibid, Article 5(4).

556  Janet E Lord and Michael Ashley Stein By avoiding the often disputed categorizations of equality and non-​discrimination, Article 5 likewise eludes the implications of an overly rigid construction of these concepts.70 The absence of a formal (narrow) characterization of equality will also enable the Committee to implement the intention of the UNCRPD to recognize the intertwined nature of rights and holistically apply civil and political rights that are often associated with antidiscrimination, as well as economic, social, and cultural rights exemplified in equality measures, as a means of effective implementation.71 Finally, by prohibiting discrimination against ‘any person’ on the basis of disability, rather than as only against individuals with disabilities, the UNCRPD empowers the CRPD to receive and consider complaints by individuals who have been discriminated against because they have mistakenly been regarded as having a disability,72 or due to their association with a disabled person.73 The UNCRPD also contains articles specifically dedicated to underscoring the rights of women with disabilities,74 and children with disabilities.75 As additional articles of general application, they reflect the drafters’ intention that the rights of women with disabilities and children with disabilities are indivisible, interrelated, and interconnected with all other UNCRPD rights.76 These provisions were necessary additions because neither the CRC nor the CEDAW treaty bodies have effectively monitored the implementation of their respective conventions on women or children with disabilities. It remains to be seen whether the CRPD and the CRC and CEDAW treaty bodies will work cooperatively to develop cross-​cutting jurisprudence. Article 8 was intended by the drafters to address some of the underlying determinants of disability discrimination through awareness-​raising measures. Such schemes are identified in the United Nations Standard Rules77 as conditions precedent to the equalization of opportunities for persons with disabilities.78 They are reflected in other human rights conventions addressing racial and other forms of discrimination and serve to acknowledge that stereotyping fuels the development and application of discriminatory practices.79 Absent broad-​based education and disability awareness-​raising, efforts to 70 For example, although the ADA clearly defines the denial of a reasonable accommodation as a form of discrimination, a definition incorporated by UNCRPD Article 2, an overwhelming majority of American judges believe that the provision of workplace accommodations places disabled persons above an equality equilibrium, with the result that nearly all disability employment discrimination plaintiffs lose their court claims. See MA Stein, ‘Same Struggle, Different Difference:  ADA Accommodations as Antidiscrimination’ (2004) 153 University of Pennsylvania Law Review 579. 71 See generally Michael Ashley Stein, ‘Disability Human Rights’, (2007) 95 California Law Review 75. 72 This is one form of protected coverage under the ADA. See generally Michelle A Travis, ‘Perceived Disabilities, Social Cognition, and Innocent Mistakes,’ (2002) 55 Vanderbilt Law Review 481, 489–​90. 73 See Equal Treatment Commission (Commissie Gelijke Behandeling) 1.NL.117, Opinion 2004-​67; see also D Schiek, L Waddington, and M Bell (eds), Cases, Materials and Text on National, Supranational and International Non-​Discrimination Law (Hart Publishing, 2007) 166–​7. 74 See UNCRPD, Art 6. 75 See ibid, Article 7. 76 Vienna Declaration and Program of Action, World Conference on Human Rights, Vienna, 14–​25 June 1993, UN Doc A/​CONF.157/​24, ¶ 63. 77 See UN Standard Rules for the Equalisation of Opportunities for Persons with Disabilities, 85th Plenary Meeting, 20 December 1993, para 1, Part IV, A/​Res/​48/​96, (hereinafter UN Standard Rules). 78 See generally Kayess and French, above n 1. 79 See, for example, CEDAW, above n 7, at Article 5; International Convention on the Elimination of All Forms of Racial Discrimination, Article 7, GA Res 2106 (XX), UN GAOR, Supp No 14, 47, U.N. Doc. A/​6014 (1966) (hereinafter CERD).

The Committee on the Rights of Persons with Disabilities  557 transform UNCRPD obligations into reality will prove illusory. State practice in reporting on Article 8 is disappointing—​laundry listing of awareness-​raising activities is not evidence of impactful social change and much more needs to be done to encourage disability rights education and awareness that is effectively monitored and evaluated. The principle of accessibility in Article 9 seeks the dismantling of the barriers that hinder the effective enjoyment of rights by persons with disabilities. In that regard it serves more as a facilitator of disability rights than as a specific, substantive right in itself. The provision addresses a broad spectrum of accessibility concerns, including physical, technological, information, communication, economic, and social accessibility. It likewise expressly acknowledges the need to consider and address accessibility measures at the earliest stage in planning and preparedness programming and applies to both public and private actors who are obliged to make their product or services ‘open or provided to the public’.80 A substantial role of the Committee will be to provide guidance on the wide array of accessibility measures contemplated by Article 9 and to provide guidance to States parties in the development of accessibility guidelines and standards or the appropriate adaptation of existing standards and guidelines where necessary. The Committee held a General Day of Discussion on the topic of accessibility81 in October 2010 and adopted a General Comment on the subject in May 2014.82 While the General Comment on accessibility underscored the importance of Article 9 and accessibility as a concept unifying all substantive provisions, this should be seen as only a first step. Because accessibility is a particularly technical aspect of the UNCRPD, the authority of the Committee to establish subsidiary bodies or other innovative working methods, such as thematic working groups, and to seek external inputs on matters concerning the UNCRPD, may be usefully invoked in this context. Take, for example, the issue of ICT accessibility and the recent development in intellectual property law and disability resulting in the adoption of the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities.83 These are complex issues meriting ongoing and consistent attention that could be advanced through creative partnerships and harnessing the potential of the Convention’s Conference of States Parties. While the Committee has made headway in its working methods, advancing its work intersessionally, there is room for

80 UNCRPD, Article 9(1). 81 The Committee on Economic, Social and Cultural Rights has perhaps most helpfully animated the concept of accessibility and positive duties to provide access. See Committee on Economic, Social and Cultural Rights, General Comment 14, 22nd Session, UN Doc E/​C.12/​2000/​4 (11 August 2000), available at:  https://​www. refworld.org/​docid/​4538838d0.html (accessed 25 October 2019). See also J Lord, Presentation on General Day of Discussion on Accessibility, Accessibility and human rights fusion in the CRPD: Assessing the Scope and Content of the Accessibility Principle and Duty under the CRPD (October 2010), available at: http://​www.ohchr.org/​EN/​ HRBodies/​CRPD/​Pages/​DGD7102010.aspx. 82 CRPD, General Comment No 2, Accessibility, 22 May 2014, available at:  http://​www.ohchr.org/​EN/​ HRBodies/​CRPD/​Pages/​GC.aspx. 83 Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities, adopted 28 June 2013; available at: http://​www.wipo.int/​treaties/​en/​ip/​marrakesh/​. For more on ICT accessibility, see Peter Blanck, eAccessibility: The Struggle for Web Accessibility by People with Cognitive Disabilities (2014). See also Jonathan Lazar and Michael Ashley Stein, Disability, Human Rights, and Information Technology (University of Pennsylvania Press, 2017).

558  Janet E Lord and Michael Ashley Stein development of the institutional arrangements of the CRPD to better guide States in CRPD implementation.

(c)  Specific rights articles Beyond the articles of general application, as a comprehensive human rights treaty, the UNCRPD clarifies, within the context of disability, the human rights that all persons are entitled to under existing international human rights law instruments. Contained in the instrument are standard articles on human rights and fundamental freedoms such as the right to life,84 freedom from torture,85 the right to education,86 employment,87 political participation,88 legal capacity,89 access to justice,90 freedom of expression and opinion,91 privacy,92 participation in cultural life, sports and recreation,93 respect for home and family,94 personal integrity,95 liberty of movement and nationality,96 liberty and security of the person,97 and an adequate standard of living.98 Several of its articles are best regarded as clarifying the means through which other UNCRPD rights are realized. Thus, while all the rights contained in the UNCRPD are indivisible, interrelated, and interdependent,99 the articles on living independently,100 personal mobility,101 and habilitation and rehabilitation,102 are most appropriately understood as intrinsic to the attainment of well-​established human rights that have not previously been enforced in the disability context.103 As such, these articles will facilitate the comprehensive realization of existing rights for persons with disabilities. Indeed its far-​reaching framework should spur the progressive development of human rights law as applied to persons with disabilities and more generally in respect of other disadvantaged groups. Hesitation by the European Court of Human Rights to adopt robust substantive equality analysis in disability rights cases beyond the familiar terrain

84 See UNCRPD, Article 10. 85 See ibid, Article 15. 86 See ibid, Article 24. 87 See ibid, Article 27. 88 See ibid, Article 29. 89 See ibid, Article 12. 90 See ibid, Article 13. 91 See ibid, Article 21. 92 See ibid, Article 22. 93 See ibid, Article 30. 94 See ibid, Article 23. 95 See ibid, Article 17. 96 See ibid, Article 18. 97 See ibid, Article 14. 98 See ibid, Article 28. 99 See Vienna Declaration and Programme of Action, 12 July 1993, A/​CONF.157/​23 (‘All human rights are universal, indivisible, and interdependent and interrelated’), para I.5. 100 See UNCRPD, Article 19. 101 See ibid, Article 20. 102 See ibid, Article 26. 103 For instance, habilitation and rehabilitation are components of rights to health and employment. See generally MA Stein and Penelope JS Stein, ‘Beyond Disability Civil Rights’ (2007) 58 Hastings Law Journal 1203, 1203.

The Committee on the Rights of Persons with Disabilities  559 of civil and political rights may yet be influenced by a thoughtfully developed jurisprudence that emanates from the CRPD.104

15.4  Committee Mandate, Functions, and Monitoring Procedures (a)  Mandate and functions The CRPD’s mandate in the context of disability parallels that of existing human rights treaty monitoring bodies. It is tasked with ensuring that the UNCRPD’s stated purpose ‘to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’105 manifests itself in reality. As with established human rights committees, the CRPD is empowered to pursue its agenda by monitoring reports of States parties,106 assessing information and shadow reports provided by NGOs and other interested non-​state actors,107 examining individual complaints,108 communicating with United Nations organs and specialized agencies,109 conducting independent inquiries,110 making proactive suggestions to States parties,111 issuing general comments and recommendations, and transmitting a biennial report to the General Assembly.112 While the CRPD has a function and mandate largely consistent with existing treaty bodies, it has also been given tools that enable it to honour its mandate more proactively.

(b)  Reporting to the Committee Within two years of when the UNCRPD enters into force for a State party, it must submit to the Committee via the Secretary-​General a ‘comprehensive report on measures taken to give effect to its [UNCRPD] obligations’, and may also identify impediments to fulfilling those obligations.113 Subsequently, States parties must submit reports on at least a quadrennial basis.114 The CRPD may request more frequent reports,115 and 104 See especially Botta v Italy, ECHR (1998), No 26, 241 (holding that the applicant with a disability who was unable to access the beach and sea at a private beach resort, notwithstanding the requirement to provide facilities for disabled persons under Italian law, had no claim on the basis that the access claimed under Article 8 (privacy, family life) and Article 14 (non-​discrimination) did not have a sufficiently ‘direct and immediate link’ between the entitlement claimed and the right asserted.) For further discussion, see Stein and Lord, above n 59. See also Lord and Brown, above n 59. 105 UNCRPD, Article 1. 106 Ibid, Article 35–​37. 107 Ibid, Article 38(b); Optional Protocol, Article 1(1). 108 Optional Protocol, Articles 1–​5. 109 UNCRPD, Article 38. 110 Optional Protocol, above n 1, at Articles 6–​7. 111 UNCRPD, at Article 37(2). 112 Ibid, Article 39. 113 Ibid, Article 35(1), 35(5). 114 Ibid, Article 35(2). 115 Ibid.

560  Janet E Lord and Michael Ashley Stein prescribe content guidelines.116 The role of the Committee in articulating reporting guidelines is a particularly important one because of the significant absence of comprehensive domestic disability laws and scanty jurisprudence. The CRPD rose to the challenge when it followed existing treaty body practices in specifying reporting guidelines tailored to CRPD-​specific obligations, such as accessibility. A recent example of this iterative process is the list of issues submitted by the Committee to Tunisia in response to its initial state report.117 As the reporting practice develops, the Committee will need to closely monitor and amend its guidelines to ensure that states comply with developing understandings around particular obligations. Reports that follow on ‘comprehensive’ initial ones need not reiterate information.118 States parties ‘are invited to consider’ developing their respective reports ‘in an open and transparent process’ that involves active participation and close consultation with disabled persons and their representative organizations.119 In this respect, a fundamental role of the Committee in reviewing state reporting will be to have due regard to the process by which the report was ­prepared in-​country, and not merely the content of the report.120 Questions posed to States parties in the reporting process should cover the national-​level process undertaken in the preparation of reports and the specific role that DPOs and other civil-​society groups played in consultations around such preparation. In this regard, the Committee is tasked with implementing the fundamental participatory mandate of the UNCRPD. The CRPD shall consider each State party report, make appropriate suggestions and general recommendations, and transmit these to the respective States parties.121 Every State party may respond with information, and the Committee in turn may request additional information.122 Following the CRPD’s consideration of the report and formulation of its concluding observations and recommendations, it may also transmit its findings to the various specialized agencies, funds and programmes of the United Nations for follow-​up in the form of technical cooperation.123 The Committee in this respect should facilitate information-​sharing with the many United Nations agencies whose mandates include issues of relevance to the rights of persons with disabilities and the specific country in question, such as UNESCO, the International Labour Organization, World Health Organization, UN Development Programme, UNICEF, and the World Bank. Some agencies may be of particular importance to the country 116 Ibid, Article 35(3). 117 CRPD, List of issues to be taken up in connection with the consideration of the initial report of Tunisia (CRPD/​C/​TUN/​1), concerning Articles 1 to 33 of the Convention on the Rights of Persons with Disabilities, 10 November 2010. 118 UNCRPD, Article 35(4). 119 Ibid, Articles 35(4), 4(3). 120 Although the OHCHR suggested the inclusion of an explicit requirement for consultation with stakeholders as part of the reporting process in-​country, this was not taken up by the drafters, although it is surely an implicit requirement under the terms of Articles 3 and 4(3) of the UNCRPD. However, Article 33(3) of the UNCRPD does implicitly express the importance of this process in calling for civil society to play a role in national monitoring. OHCHR Expert Paper, above n 11, 7, para 23. 121 UNCRPD, Article 36(1). 122 Ibid. 123 Ibid, Article 36(5).

The Committee on the Rights of Persons with Disabilities  561 concerned. For example, where the CRPD has reviewed the report of a State party whose territory is affected by the presence of landmines, it is important to transmit its findings to the UN Mine Action Service, among other bodies. For a country affected by the HIV/​AIDS pandemic, it would be useful for the findings of the Committee to be transmitted to UNAIDS, among other bodies. The engagement of the CRPD through the reporting process with these and other organizations can help to ensure that periodic reporting has a relevance and effective impact beyond its meeting rooms to the lives of persons with disabilities. In the event that a report is ‘significantly overdue’, the Committee may give that State party a three month notice to submit a report of its UNCRPD implementation.124 This provision reflects an established, albeit relatively rare practice among treaty monitoring bodies to review implementation in the absence of a report, following the provision of a final opportunity to submit a report, and has potential to facilitate and expedite State reporting accountability.125 Submission of a report before the end of the three-​month notice period will negate a putative CRPD investigation.126 The rigorous enforcement of timely and responsive reporting by States parties will depend upon how rigorously the Committee commits itself to utilizing the tools at its disposal.

(c)  Optional Protocol Communications Procedure The CRPD is authorized to accept and deliberate upon individual and group complaints and communications regarding alleged violations of the UNCRPD,127 but only those asserted against States parties to the Optional Protocol.128 Trenchantly, complaints and communications may be submitted to the Committee on behalf of aggrieved individuals, in addition to their doing so directly, thus increasing the prospect of NGO participation in rights monitoring.129 The drafters decided to exclude inter-​state communications procedures on the basis that such procedures are rarely invoked in practice and were unlikely to represent a meaningful addition to the UNCRPD. Thus far,

124 Ibid, Article 36(2). 125 For discussion of this practice, see OHCHR Expert Paper, above n 1, 10, para 35. 126 Ibid. 127 Optional Protocol, Article 1(1). The OHCHR reviewed communications procedures and established practices in the context of its support to the drafters of the UNCRPD. See OHCHR Expert Paper, above n 11, 12–​ 13, paras 43–​8. For a comprehensive review of innovations in communications procedures, see Paper submitted by the Chairperson/​Rapporteur of the Open-​Ended Working Group on an Optional Protocol to ICESCR, E/​ CN.4/​2006/​WG.23/​2. See also Comparative Summaries of Existing Communications and Inquiry Procedures and Practices under International Human Rights Instruments and Under the UN System, E/​CN.4/​2005/​WG.23/​2 and E/​CN.6/​1997/​4. 128 Optional Protocol, Article 1(2). 129 See, for comparison, Optional Protocol to the International Covenant on Civil and Political Rights, GA Res 2200A (XXI), UN Doc A/​6316 (23 March 1976) Article 1. It should be noted in this respect that the Human Right Committee, in its Rules of Procedure, nonetheless adopted the practice of hearing communications on behalf of alleged victims. The UNCRPD, however, follows CERD and the Optional Protocol to CEDAW in conferring standing beyond individual complainants. See CERD, above n 79, Article 14(1); Optional Protocol to the Convention on the Elimination of Discrimination against Women, GA res 54/​4, annex, 54 UN GAOR Supp (No 49) at 5, UN Doc A/​ 54/​49 (Vol. I) (2000), entered into force on 22 December 2000, at Article 2.

562  Janet E Lord and Michael Ashley Stein nineteen communications have been received by the Committee, of which it declared admissible and adopted views on eight communications.130 The admissibility of communications mirrors that of other international complaints procedures. Communications are inadmissible when made anonymously,131 when the underlying events occurred before the relevant State party ratified the Optional Protocol and did not continue after that time,132 when the ‘same matter’ has been considered previously by the CRPD or is currently being reviewed ‘under another procedure of international investigation or settlement’,133 where the complainant has failed to exhaust domestic remedies (unless these can be shown to be unreasonably obfuscatory or inefficacious),134 where the communication is unfounded or unsubstantiated,135 or where it abuses the right to submit under, or conflicts with, the UNCRPD’s provisions.136 The CRPD may, at any time after receiving a communication but before determining its merits, request a State party to adopt sufficient interim measures ‘to avoid possible irreparable damage’ to the alleged victims of its actions.137 Such action does not, however, imply the ultimate admissibility or merits of the given communication.138 The possibility of such precautionary measures is important and has been clearly demonstrated in a petition concerning the rights of persons with mental disabilities before the Inter-​American Commission on Human Rights of the Organization of American States.139 That case also illustrated the proactive role that can be played by certain monitoring bodies, with the Commission converting an individual complaint to one that encompassed all individuals institutionalized in the state facility. Given that the CRPD is authorized to hear group complaints (as well as to make inquiries regarding systemic UNCRPD violations) it would follow that similar action would fall within its purview.140 In addition, although the Ad Hoc Committee did not take up the suggestion of the OHCHR for the inclusion of a specific provision allowing the Committee to address urgent situations through early warning measures, it would be within the mandate of the CRPD to do so.141 That said, it has embraced the practice of 130 The jurisprudence of the treaty bodies, including the CRPD, may be accessed at: http://​juris.ohchr.org/​ 131 ICCPR, International Covenant on Civil and Political Rights, GA Res 2200A (XXI), 21 UN GAOR Supp (No 16) at 52, Part 1, Article 2(a), UN Doc A/​6316 (1966), 999 U.N.T.S. 171M, entered into force 23 March 1976. 132 Ibid, Article 2(f). 133 Ibid, Article 2(c). 134 Ibid, Article 2(d). 135 Ibid, Article 2(e). 136 Ibid, Article 2(b). 137 Ibid, Article 4(1). 138 Ibid, Article 4(2). 139 See ‘Precautionary measures granted or extended by the Commission during 2003: Paraguay, on behalf of the patients of the Hospital Neurosiquiátrico (Neuro-​psychiatric Hospital)’, in Annual Report of the Inter-​American Commission on Human Rights (2003), OEA/​Ser./​L/​V/​II.118, doc 25., rev 2 (2001), Ch III.C, para 60 (approving petition for precautionary measures to protect the lives and physical integrity of people detained in a psychiatric institution in Paraguay and requesting that the Government of Paraguay adopt all necessary measures to protect their lives, health, physical, mental and moral integrity). 140 For example, in International Association Autism—​Europe (IAAE) v France, 3 CoE. 12 (10 March 2004), the European Committee on Social Rights engaged in a far-​reaching investigation of the extent to which children with autism were mainstreamed into France’s school system. 141 See, for example, OHCHR Expert Paper, above n 11, 15, para 55. CERD developed early warning and urgent action measures in 1993, which may be invoked by the Committee or interested parties. See CERD, Working

The Committee on the Rights of Persons with Disabilities  563 accepting ‘friend of the court’ briefs, or amici curiae submissions and did so at the behest of pro bono disability rights litigation experts.142 States parties shall be confidentially apprised of admissible communications by the CRPD, and are required to respond in writing thereto with explanations or clarifying statements within six months.143 The CRPD shall consider communications in closed meetings, and transmit any suggestions or recommendations to both the concerned State party and the petitioner.144

(d)  Optional Protocol inquiry procedure The UNCRPD includes in its Optional Protocol a procedure of inquiry,145 employed within some human rights monitoring systems to allow human rights monitoring systems to initiate investigations regarding egregious or systematic human rights violations.146 A  procedure of inquiry is triggered in cases where the Committee receives ‘reliable’ information relating to ‘grave or systematic violations’ of convention obligations by a State Party.147 One might well imagine, for example, an inquiry concerning the institutionalization of persons with disabilities in abusive and squalid conditions, systematic exclusion of disabled children from schools, or the widespread exclusion of persons with disabilities from health prevention programmes, such as HIV/​AIDS outreach. In such cases, the CRPD shall call on that State party to collaborate in an investigation of that information and submit its observations.148 Thereafter, the Committee will review the information submitted by the State party and reliable information submitted by other parties.i The Committee may choose to authorize one or more of its members to conduct an inquiry and report ‘urgently’ to the Committee.149 Such an inquiry may include a visit to the territory of the State party subject to consent of the State party (consent being a standard principle of international legal process). The findings of any such inquiry are sent to the State party, along with Committee ‘comments and recommendations’.150 The Paper on Prevention of Racial Discrimination, including Early Warning and Urgent Action Procedures, A/​48/​18, annex III. 142 The Harvard Law School Project on Disability submitted the first third party intervention to the Committee. See Submission to United Nations Committee on the Rights of Persons with Disabilities, Zsolt Bujdoso´, J´anosn´e Ildiko´ M´arkus, Vikt´oria Ma´rton, Sa´ndor M´esz´aros, Gergely Polk, and Ja´nos Szabo´ v. Hungary (submitted to CRPD Committee 5 September 2011) (on file with authors). Because the Committee did not then have a procedural rule to adjudge the admissibility of such interventions, the Committee revised its procedural rules to permit amici briefs when one of the parties approves. 143 UNCRPD, Article 3. 144 Ibid, Article 5. 145 Optional Protocol, Article 6. 146 See, for example, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res 39/​46, UN GAOR, 39th Session, Annex, Supp No 51, 197, UN Doc A/​39/​51 (1984) [hereinafter CAT] Article 20. 147 Optional Protocol, Article 6. 148 Ibid, Article 6(1). 149 Ibid, Article 6(2). 150 Ibid, Article 6(3).

564  Janet E Lord and Michael Ashley Stein State party is given an opportunity to respond within six months.151 The procedure is confidential; accordingly, the proceedings are entirely closed and the written findings are not made public.152 After that time, the CRPD may solicit the State party to appraise it of what measures it assumed in reply to the inquiry;153 and may invite the State party to include details of these measures in its habitual UNCRPD report.154 Such follow-​up procedures in relation to communications or inquiry mechanisms enhance compliance with recommendations and other measures. Whether the Committee will proactively engage in such follow-​up will depend upon the manner in which it perceives its mandate, as well as the resources placed at its disposal.

(e)  Publicity and dissemination of the UNCRPD and CRPD work product Human rights conventions typically include provisions concerning publicity of the convention, the purpose of which is to ensure that the treaty itself and the work of bodies created by the treaty are made widely known.155 Provisions concerning publicity in human rights treaties typically reference the dissemination of the treaty text, but may also be read as including the various work product of the treaty body such as its views, recommendations, reports, and general comments.156 The drafters of the UNCRPD recognized the importance of general awareness raising and training on disability rights, as reflected in Article 8,157 along with publicity of the UNCRPD and the importance of dissemination of the UNCRPD in accessible formats. An accident of drafting placed it in the final provisions of the treaty when the absence of the provision was noted and Ambassador McKay suggested it be included in the draft of final provisions being facilitated by the delegation of Liechtenstein. Accordingly, Article 49 of the UNCRPD provides that the UNCRPD text ‘shall be made available in accessible formats’ in addition to broader dissemination obligations. Thus, sate reports must be made available by the Secretary-​General to all States Parties,158 and be facilitated and made ‘widely available,’ including general recommendations, by each State Party to its own public.159 When appropriate the CRPD may disseminate 151 Ibid, Article 6(4). 152 Ibid, Article 6(5). 153 Ibid, Article 7(2). 154 Ibid, Article 7(1); UNCRPD, Article 35. 155 In other international law domains, it is commonplace to provide explicit reference to public education, awareness and training in the subject matter covered by the treaty, particularly in the case of international environmental agreements. See, eg, Asbestos Convention, ILO 4 June 1986, Convention 162, ILO Conventions 162, entered into force 16 June 1989, Article 22; Safety and Health in Construction Convention, ILO 1 June 1988, Convention 167, ILO Conventions 167, entered into force 11 January 1991, Article 33. 156 See, for example, CRC, above n 26, Article 42. 157 Awareness-​raising is one of the preconditions for the equalization of opportunities for persons with disabilities as set forth in the UN Standard Rules (Rule 1) which informed much of the content of the UNCRPD. See J Lord and K Guernsey, ‘A Reference Tool: Understanding The Potential Content and Structure of an International Convention On The Human Rights Of Persons With Disabilities–​Sample Treaty Provisions Drawn From Existing International Instruments’ (National Council on Disability, 29 July 2002). 158 UNCRPD, Article 36(3). 159 Ibid, Article 36 (4).

The Committee on the Rights of Persons with Disabilities  565 reports, along with observations, recommendations, and requests for technical assistance or advice, to United Nations specialised entities ‘and other competent bodies’.160 The CRPD reports on its actions to the General Assembly and the Economic and Social Council on a biennial basis, and while doing so include suggestions and general recommendations for how to better effectuate the UNCRPD, as well as state responses to those communications.161 The provisions concerning awareness-​raising, training, publicity and dissemination together create an important framework for transparency in relation to the UNCRPD and the work of its constituent body, the CRPD. All of the obligations in this context should be read together with the general principles of the UNCRPD, including accessibility, participation and meaningful consultation among persons with disabilities. The Committee is the ultimate guardian of the sunshine provisions that facilitate transparency and awareness-​raising that form an essential component of the UNCRPD.

15.5  Other mechanisms relevant to monitoring and implementation of the UNCRPD (a)  Conferences of States parties The provision on Conferences of States Parties (COSP) in UNCRPD Article 40 is unique for core human rights conventions. Previous treaties reference meetings of States parties but those mechanisms are intended to be used for limited purposes pertaining to election of Committee members or amendments. As such, the broader purpose of the COSP introduced by the UNCRPD more closely approximate those seen in international environmental or arms control contexts.162 The COSP is thus intended to facilitate implementation of the UNCRPD by drawing together a wide range of actors, including States Parties, relevant UN agencies, DPOs, NGOs, and others to provide a forum for discussion and reflection on how to best operationalize the UNCRPD.163 It will be for the Committee to decide its role in relation to the COSP as it is a new innovation for a human rights convention to establish a periodic meeting to review implementation. Thus far, however, the COSP has not served a particularly innovative role, either in developing the normative content of the treaty or in terms of the Committee harnessing its potential to support its role. While there is no precedent flowing from existing human rights treaties in relation to the role a treaty body would

160 Ibid, Articles 36(5), 38(a). 161 These reports may be accessed at: http://​tbinternet.ohchr.org/​_​layouts/​treatybodyexternal/​TBSearch.aspx?L ang=en&TreatyID=4&DocTypeID=27. 162 See, for example, Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-​ personnel Mines and on Their Destruction, 18 September 1997, entered into force 1 March 1999, Article 11, available at: http://​www.icbl.org/​treaty/​text/​english [hereinafter Mine Ban Treaty]. 163 UNCRPD, Article 40. For the webpage of the Conference of States Parties, see https://​www.un.org/​development/​desa/​disabilities/​conference-​of-​states-​parties-​to-​the-​convention-​on-​the-​rights-​of-​persons-​with-​ disabilities-​2.html.

566  Janet E Lord and Michael Ashley Stein play within the context of the COSP, there is no reason why it could not evolve into a substantive body in much the same way that other COSPs have so evolved. At their most efficacious, regular meetings of States parties are designed to, among other things, (i) regularly review the implementation of the convention and the functioning of its institutional arrangements; (ii) promote and facilitate the exchange of information on measures adopted by the States parties in furtherance of the convention as well as facilitate international cooperation; (iii) establish such subsidiary bodies as are deemed necessary for implementation; (iv) review reports and other instruments submitted by the treaty body and/​or subsidiary bodies; and (v) consider amendments to the convention. It seems manifest, however, that a regular forum for dialogue regarding UNCRPD implementation should facilitate the important work of the Committee just as the Committee’s work will no doubt advance the work of the Conference of States Parties. Ultimately, the CRPD’s effectiveness will also be advanced if it ensures the active participation of persons with disabilities and their representative organizations, a dynamic that it can support through its role in the COSP.

(b)  National level monitoring The monitoring mechanisms and implementation facilitators in the UNCRPD extend to the national level, a particular innovation for international human rights conventions (though a standard feature of environmental and other agreements)164 and reflective of the increased prominence of NHRIs in United Nations human rights processes in recent years. The dialogue on national-​level monitoring during the course of the Ad Hoc Committee negotiations was enhanced and significantly influenced by the participation of NHRIs in all sessions of the process. This included the representation of NHRIs on the Working Group of the Ad Hoc Committee.165 Article 33 on national implementation and monitoring obligates States parties to ‘designate one or more focal points’ for respective domestic UNCRPD implementation.166 States are further required to ‘give due consideration to the establishment or designation of a coordination mechanism within government to facilitate related action in different sectors and at different levels’.167 This latter provision is an explicit acknowledgement by the drafters that responsibility at the national level for ensuring the rights of persons with disabilities extends across a wide range of government sectors and therefore poses considerable challenges in relation to coordination and coherence of approach. Article 33 likewise requires States parties to establish and/​ 164 See, for example, ‘International Convention to Combat Desertification in Countries Experiencing Serious Drought and/​or Desertification, especially in Africa’, Article UN Framework Convention Climate Change, adopted 9 May 1992, 31 I.L.M. 849, entered into force 21 March 1994, Articles 10 and 14(2); Mine Ban Treaty, above n 163, Article 9. 165 NHRIs were represented on the Working Group of the Ad Hoc Committee by Charlotte McClain-​Nhlapo, who at the time was a South Africa Human Rights Commissioner. 166 UNCRPD, Article 33(1). 167 Ibid, Article 33(1).

The Committee on the Rights of Persons with Disabilities  567 or support one or more independent mechanisms to ‘promote, protect and monitor’ the UNCRPD’s implementation.168 It further provides that persons with disabilities and their representative organizations must be ‘involved and participate fully in the monitoring process’.169 However, ultimate responsibility for effective DPO representation is largely contingent on how well national, regional, and international disability-​rights groups organize and advocate in interaction with formal UNCRPD processes. Proposed draft language on the relationship between the Committee and national mechanisms did not make its way into the final text. NHRIs are likely to serve as a valuable resource to the CRPD, especially insofar as they are working on harmonizing their efforts in advancing the implementation of the UNCRPD. The International Coordinating Committee of NHRIs has served as a proactive facilitator of ongoing dialogue around the UNCRPD by convening both global and regional meetings.170 Hence, it will be for the CRPD to develop its practice and role in relation to the national level mechanism contemplated by the UNCRPD. The CRPD may innovate in this regard, serving to advise States parties on the establishment of such mechanisms and offering technical assistance to enhance capacity, and helping to evaluate national needs and priorities to achieve implementation. If the Committee is to have a productive relationship with national-​level mechanisms, it will facilitate a meaningful exchange on methods and strategies to promote and protect the rights of persons with disabilities at both national and international levels. Parenthetically, the inter-​relationship between the CRPD and regional integration organizations, such as the European Union, is still evolving and can provide a rich space within which to develop progressive treaty body practice.

(c)  Disability statistics and data collection Article 31 of the UNCRPD requires States parties to ‘collect appropriate information, including statistical and research data’ to enable them to create and implement policies that give effect to the UNCRPD.171 The Article also outlines the standards to 168 Ibid, Article 33(2). For excellent discussion of monitoring mechanisms within the UNCRPD context, see G de Beco (ed), Article 33 of the UN Convention on the Rights of Persons with Disabilities: National Structures for the Implementation and Monitoring of the Convention (Martinus Nijhoff Publishers, 2013); G de Beco, ‘Article 33 (2) of the UN Convention on the Rights of Persons with Disabilities. Another Role for National Human Rights Institutions?’ (2011) 29 (1) Netherlands Quarterly of Human Rights 84–​106. 169 UNCRPD, at Article 33(3). 170 Global meetings include those convened by the Harvard Law School Project on Disability to work out details of the monitoring proposal submitted to the Sixth Ad Hoc Committee session in 2005. Regional meetings include a 27 September 2007 convening by the Asia Pacific Forum on National Rights Institutions to discuss national-​level monitoring and implementation, and a historic public forum held on 5 September 2007 in Seoul, Korea at which Asia Pacific NHRIs discussed monitoring and implementation with representatives of worldwide DPOs. 171 UNCRPD, at Article 31(1). This provision appears to have its origins in the Bangkok Draft. See Regional Workshop Towards a Comprehensive & Integral Int’l Convention on Prot. & Promotion of the Rights & Dignity of Persons with Disabilities, 14–​17 October 2003, Bangkok Draft:  Proposed Elements of a Comprehensive and Integral International Convention to Promote and Protect the Rights of Persons with Disabilities, Article 33, available at: http://​www.un.org/​esa/​socdev/​enable/​rights/​bangkokdraft.htm.

568  Janet E Lord and Michael Ashley Stein be used for the collection, maintenance and use of this information.172 The drafters of the UNCRPD were particularly concerned about the dearth of disability-​specific statistics and data. At the same time, the Ad Hoc Committee sought to balance the need to stimulate better practices in this context with the need to ensure that the process by which such data is collected and ultimately used, does not violate the rights of persons with disabilities. The resulting text reflects these interests and the equilibrium desired. The task of the Committee will be to ensure, within the framework of the reporting process, that disability statistics data are collected and applied in keeping with Article 31. The CRPD must proactively engage States parties on their practices in relation to disability data and statistics within the framework of its efforts with States parties. Because disability is a social construct, there is wide divergence in respective national definitions, and therefore the prevalence, of disability.173 These inconsistencies impede an informed analysis of the comparative status of persons with disabilities. In addition, and partly to mitigate comparative disjuncture, states will need to establish longitudinal data sets whereby they can assess the progress over time of their own citizens with disabilities. In this regard, the Committee could work to stimulate coherence in the approach to disability statistics and data collection among States parties. One area in which the Committee could be of particular assistance is in raising States parties’ awareness of the standardization of disability questions in national census taking, in particular the work of the Washington Group.174 Practices in the international environmental realm are instructive in this regard insofar as environmental agreements serve to provide a coherent and coordinated framework within which States parties collect and share data and statistics and in which treaty bodies and technical subsidiary bodies utilize such data and advance its appropriate collection.175 Thus far, the Committee has recommended that states undertake disability specific data collection in line with the Convention on repeated occasions and its reporting guidelines lay out numerous guidelines for such data collection.176

172 UNCRPD, Article 31(1)(a–​b). 173 Kenya, for example, reports less than one percent of its population as having a disability compared to twenty percent in New Zealand. See Daniel Mont, ‘Measuring Disability Prevalence’, SP Discussion Paper No. 0706 Disability & Development Team, HDNSP, World Bank, (March 2007). The CRPD is highlighting deficiencies in disability data and collection in its concluding observations. 174 The work of the Washington Group on Disability Statistics is available at www.washingtongroup-​disability. com. See also Mont, above n 174; see J Madans, M Loeb, and B Altman, ‘Measuring Disability and Monitoring the UN Convention on the Rights of Persons with Disabilities: the work of the Washington Group on Disability Statistics for more on measurement,’ (31 May 2011) 11 Public Health Supplements 4. 175 See, for example, UN Convention to Combat Desertification, adopted 17 June 1994, 33 ILM 1332, entered into force 26 December 1996, Article 16 (providing for the detailed integration and coordination of the collection, analysis and exchange of data and information of matters relevant to the Treaty). 176 CRPD, ‘Reporting Guidelines’ (2009); available at:  http://​www.ohchr.org/​Documents/​HRBodies/​CRPD/​ CRPD-​C-​2-​3.pdf.

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(d)  Relationship of the CRPD with other bodies To foment effective implementation of the UNCRPD, including international cooperation, the CRPD is intended to cooperate with United Nations specialized agencies and other organs. These entities are ‘entitled to be represented’ during consideration of the UNCRPD’s implementation,177 which would include not only the reporting process but also the Conference of States Parties, and may be invited by the CRPD to share technical assistance, and submit reports.178 Such bodies are a potentially important resource for the Committee to tap into in order to effectively fulfil its mandate. Some of the specialized agencies possess considerable expertise in relation to particular issue areas covered by the UNCRPD and it will be important for the Committee to have due regard to the work done by such bodies in order to avoid duplication and to benefit from the expertise offered by them. Thus, for example, UNICEF incorporates programming relating the rights of disabled children in its work pursuant to the CRC and may deepen its capacity in this context under the CRPD. To implement the UNCRPD, the Committee is authorized to consult with ‘other relevant bodies instituted by international human rights treaties’179 a provision that implicitly includes a role for the Committee in relation to other human rights treaty bodies.180 In particular, it envisages that the Committee will have due regard to the work of other treaty bodies whose work will necessarily overlap with that of the Committee and also take into account the on-​going interest in ensuring that the reporting process is meaningful without being duplicative. Likewise, opportunities for the Committee to interface with other treaty bodies will further enhance the work of those bodies, ensure their better coverage of disability issues, and reinforce the work of the Committee in key areas of UNCRPD implementation. This recursive dynamic is especially crucial. Finally, States parties are required to cooperate with and assist the CRPD in fulfilling its duties,181 and the CRPD in turn is tasked with considering ‘ways and means of enhancing national capacities’, including international cooperation, to best implement the UNCRPD.182 Thus, in addition to procedural safeguards regarding treaty enforcement, the drafters envisioned collaborative efforts between the CRPD and States parties and sought to emphasize such tools as opposed to purely adversarial means and modes of enforcement. This is significant insofar as very few states have the sort of comprehensive disability legislation or implementation frameworks that the UNCRPD seeks to foment. 177 UNCRPD, Article 38(a). 178 Ibid. 179 Ibid, Article 38(b). 180 The rationale for such inclusion by the CRPD is ‘with a view to ensuring the consistency of their respective reporting guidelines, suggestions and general recommendations, and avoiding duplication and overlap in the performance of their functions’. 181 Ibid, Article 37(1). 182 Ibid, Article 37(2).

570  Janet E Lord and Michael Ashley Stein

(e)  NGO participation in monitoring and implementation processes The particularly inclusive character of the work of the Ad Hoc Committee in its negotiation of the UNCRPD, including the representation of twelve NGOs in the Working Group that drafted the foundational text of the UNCRPD, created a sense of necessity for providing NGOs—​and in particular disabled peoples’ organizations (DPOs)—​with a meaningful role in the monitoring and implementation of the UNCRPD. The participation of persons with disabilities and their representative organizations in UNCRPD-​related monitoring and implementation at all levels is both implicitly (through the vehicle of the general obligation in Article 4(3)183 as well as the general principles of participation and inclusion in Article 2)  and explicitly woven throughout the text’s entire fabric. NGO participation is also implicitly provided for in the monitoring process, insofar as the UNCRPD requires States parties to include civil society in that process at the national level184 and calls on States parties to consider consultations with NGOs in the formulation of Committee member nominations185 as well as in the preparation of their reports.186 These features together represent perhaps one of the most progressive developments in human rights law provided by the UNCRPD.187 In addition, NGOs were clearly contemplated by the drafters as having an active role in the work of the Committee. Article 38 authorizes the Committee to invite ‘other competent bodies as it may consider appropriate to provide expert advice on the implementation of the UNCRPD in areas falling within the scope of their activities’.188 This mandate, inter alia, enables the Committee to receive and consider information and advice submitted by civil society organizations in various formats, including written submissions (such as shadow reports) and oral interventions before the Committee.189 Civil society has responded with enthusiasm. Some NGO reporting corresponds closely to the principles that ought to animate such reporting. On the other hand, some reporting to the CRPD Committee reflects a great need for quality control and principled approaches to monitoring, including the avoidance of conflicts of interest, the engagement of local DPOs in reporting, and greater transparency.190

183 Ibid, Article 4(3). 184 Ibid, Article 33(3). 185 Ibid, Article 34(3). 186 Ibid, Article 35(4). 187 Ibid, Article 4(3) (referencing the important role of persons with disabilities and their representative organisations in the development and implementation of legislation and policies that give effect to the UNCRPD). 188 Ibid, Article 38(a). 189 As the OHCHR points out in its Expert Paper prepared for the drafters of the UNCRPD, the CRC Committee has a particularly well-​developed practice of encouraging the receipt of NGO materials and otherwise facilitating active and highly constructive engagement by NGOs in its work. OHCHR, Expert Paper, above n 11, 8, para 27. 190 For more on adherence to human rights principles and good advocacy practices in reporting, see J Lord, et al, Disability Human Rights Reporting: Prospects, Process and Potential Problems (One Billon Strong, 2012).

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(f)  Framework for international cooperation A further innovation in the monitoring and implementation framework of the UNCRPD is the inclusion of clear language concerning international cooperation at several points in the text, including a standalone provision in Article 32.191 States parties to the UNCRPD are to cooperate internationally through partnerships with other states, and/​or with relevant international and regional organizations and civil society in support of national measures to give effect to the UNCRPD.192 Importantly, Article 32 makes it clear that all international cooperation efforts, including international development programmes, should be fully inclusive of persons with disabilities and accessible. The Conference of States parties has focused on disability-​inclusive development in successive sessions.193 Disability is reflected in the post-​2105 development agenda194 and in the World Bank’s Environmental and Social Framework195 and the COSP has undoubtedly helped to elevate the issue of disability inclusive development among bilateral and multilateral donors.196 The Conference should continue to be a vehicle for following up on this requirement as well as a forum for sharing best practices in inclusive development in various sectors.

15.6  Monitoring and implementation beyond the framework of the UNCRPD The work of the United Nations system on the advancement of the rights of persons with disabilities extends well beyond the UNCRPD and its attendant monitoring mechanisms. Disability, as a cross-​cutting issue, is (or should be) part and parcel of the work of a great many United Nations programmes and there are a number of international as well as regional intergovernmental bodies which have some form of

191 UNCRPD, at Article 32. See also Preambular para (l); Article 4(2); Article 37(2); Article 38. For a history of its drafting, see Janet E Lord and Michael Ashley Stein, Article 32, in I Bantekas, M A Stein, and D Anastasiou (eds), The UN Convention on the Rights of Persons with Disabilities: A Commentary (Oxford, 2018). See also Michael Ashley Stein and Penelope JS Stein, Disability, Development, and Human Rights: A Mandate and Framework for International Financial Institutions (2014) 47 UC Davis Law Review 1231. 192 Ibid, Article 32(1). 193 All the reports of the COSP reflect a focus on the CRPD in the context of inclusive development. For all COSP reports, see COSP Home Page:  https://​www.un.org/​development/​desa/​disabilities/​ conference-​of-​states-​parties-​to-​the-​convention-​on-​the-​rights-​of-​persons-​with-​disabilities-​2.html. 194 See UN GA Res. 60/​1, paragraph 139; GA Res 65/​1, paras 28 and 70  :  http://​www.un.org/​disabilities/​ documents/​accessibility_​and_​development.pdf 195 See World Bank, Environmental and Social Framework for IPF Operations, Good Practice Note, Non-​ Discrimination and Disability (June 2018), available at: http://​pubdocs.worldbank.org/​en/​573841530208492785/​ ESF-​GPN-​Disability-​June-​2018.pdf. 196 For an overview, see UNDESA, Report on the Dialogue on the Post-​2015 Development Framework and Disability (July 2013)  at https://​www.un.org/​development/​desa/​disabilities/​about-​us/​desa-​forum-​dialogue-​on-​ the-​post-​2015-​development-​framework-​and-​disability.html. See also J Lord et  al, Disability and International Cooperation and Development: A Review of Policies and Practices, Social Protection Discussion Paper No SP 1003 (World Bank, 2010), available a: www.siteresources.worldbank.org/​DISABILITY/​Resources/​PublicationsReports/​ Disability_​and_​Intl_​Cooperation.pdf.

572  Janet E Lord and Michael Ashley Stein responsibility in the issue areas covered by the UNCRPD. Several of these programmes have monitoring responsibilities relating to disability rights.197 Others have responded to the mandate created by the adoption of the UNCRPD—​one that requires UN agencies to align internal and external policies with disability rights principles—​by adopting disability policies, guidelines for inclusive programming and issuing reports and data addressing disability-​related aspects of their work.198 Chief among these was the release in 2011 of the World Report on Disability by the World Health Organization and the World Bank.199 The Department for Economic and Social Affairs (DESA) is responsible for the oversight of the implementation of the World Programme of Action Concerning Disabled Persons200 and the UN Standard Rules,201 not to mention other disability-​ related standards and guidelines, through its UNCRPD Secretariat. DESA serves as the Secretariat for Conference of States Parties pursuant to Article 40 of the UNCRPD.202 In December 2014, Ms Catalina Devandas Aguilar (Costa Rica) took office as the first Special Rapporteur on the Rights of Persons with Disabilities, following Human Rights Council resolution 26/​20 establishing the new special procedures mandate.203 While a there was a Special Rapporteur created to monitor implementation of the non-​binding Standard Rules on the Equalization of Opportunities for Persons with Disabilities, that office was serviced within the Department of Economic and Social Affairs. The new special procedure falls within the OHCHR structure, and reports to the Human Rights Council. Drawing from the experience of special rapporteurs created within the framework of the United Nations human rights system and serviced by the OHCHR, there are ways in which the Special Rapporteur on Disability could relate to the new convention implementation structure (and the United Nations human rights system more generally). The practice of special rapporteurs in recent years is to enhance their collaboration with human rights treaty bodies and with each other. Thus, for example, the Special Rapporteur on Adequate Housing has met with the Committee on Economic, Social and Cultural Rights and the Committee on the Rights of the Child. Special rapporteurs may also decide to approach other thematic mechanisms and country rapporteurs, with a view to sending joint communications or seeking joint missions. Special rapporteurs may complement the work of existing treaty bodies, providing reports and studies on areas falling within their mandate. 197 Thus, for example, the UN Mine Action Service has, as one of its pillars, victim assistance. See S Federlein, ‘Victim Assistance:  A Way Forward Emerges’ (December 2002) Journal of Mine Action available at:  http://​ maic.jmu.edu/​Journal/​6.3/​focus/​fiederlein/​fiederlein.htm (discussing victim assistance as a pillar of UNMAS programming). 198 There are numerous examples, among them: WHO & UNFPA, Promoting sexual and reproductive health for persons with disabilities: WHO/​UNFPA guidance note (2009); UNHCR, Report by the Director of UNHCR New York Office: Conference of the States Parties to the Convention on the Rights of Persons with Disabilities (Sept. 3, 2010), available at: www.un.org/​disabilities/​documents/​COP/​COP3/​Presentation/​JanzSep3-​2010.doc (by Udo Janz). 199 WHO/​World Bank, World Report on Disability (2011), available at: https://​www.who.int/​disabilities/​world_​ report/​2011/​en/​. 200 GA Res 37/​52 (1982), available at: http://​www.un.org/​esa/​socdev/​enable/​diswpa00.htm. 201 See UN Standard Rules, above n 125. 202 See UNCRPD, Article 40(1). 203 For more on the Special Rapporteur, see http://​www.ohchr.org/​EN/​Issues/​Disability/​SRDisabilities/​Pages/​ SRDisabilitiesIndex.aspx.

The Committee on the Rights of Persons with Disabilities  573 What is important is that there be a coordinated approach to setting the United Nations agenda on the rights of persons with disabilities and the rational development of policies and programmes to achieve effective implementation of the UNCRPD and full inclusion across the spectrum of the United Nations.

15.7  An emerging CRPD jurisprudence This chapter has provided an account of what the CRPD Committee is, its mandate under the UNCRPD, and how it exercises that mandate. Disability-​based persecution is an ongoing and persisting human rights challenge around the world and the UNCRPD was negotiated to redress years of neglect by the human rights system to account for the human rights of persons with disabilities. The UNCRPD and its Committee aim to fill, according to a tag-​line used in campaigning during the treaty negotiations, the ‘missing piece in the human rights puzzle’. This chapter appraises the work of the Committee in the context of its relatively short life and a rapidly changing domestic context for disability-​rights protection within ratifying states. As such, the chapter presents a preliminary and introductory account of the work of the Committee. That said, some sense of the Committee’s interpretive trajectory is starting to emerge. Concluding observations of the Committee are structured like other treaty bodies and are made public at the end of each Committee session. They include brief introductions, positive aspects of implementation, principal areas of concern and implementation, with sub-​sections on general principles and obligations, specific rights, and specific obligations. A  survey of the concluding observations and recommendations adopted thus far reveals patterns of where states are invariably falling short of the Convention’s mandates and areas of greatest concern for the Committee. Of particular concern to the CRPD, numerous states with underdeveloped disability rights law frameworks have failed to include the duty to provide reasonable accommodation as an element of the non-​discrimination duty, neglected to adopt accessibility standards and guidelines, and maintained definition(s) of disability that do not adhere, in the Committee’s view, to the social model of disability reflected in the Convention. The Committee has addressed in many instances state policies regarding prevention of disability that tend to be conflated with policies to protect the rights of persons with disabilities.204 Other key themes emerging in the concluding observations adopted by the Committee include often broad-​based legislative stereotyping of persons with disabilities,205 apparent infringements of sexual and reproductive rights, especially of

204 See CRPD, ‘Consideration of Reports submitted by States under Article 35, Concluding Observations—​ Ecuador’ (27 October 2014), CRPD/​C/​ECU/​CO/​1, paras 20, 21. 205 See CRPD, ‘Consideration of Reports submitted by States under Article 35, Concluding Observations—​ Gabon’ (2 October 2015), CRPD/​C/​GAB/​CO/​1, paras 10–​11; CRPD, ‘Consideration of Reports submitted by States under Article 35, Concluding Observations—​Azerbaijan’ (12 May 2014), CRPD/​C/​AZE/​CO/​1, paras 9–​10.

574  Janet E Lord and Michael Ashley Stein women with disabilities,206 failures to make electoral systems accessible to persons with disabilities,207 the persistence of segregated education and employment schemes,208 and gross inadequacies in community living arrangements for persons with disabilities.209 Notably, the work of the Committee is bringing to the fore egregious cases of disability-​based persecution that rarely surface in human rights documentation, including ritual killings of persons with albinism, little known and little understood outside Africa, involuntary or coercive abortion especially targeting pregnant women with intellectual disability, forced sterilization and involuntary institutionalization in life-​ threatening conditions.210 Establishing patterns of egregious human rights abuse is essential for elevating disability rights violations as serious issues requiring human rights attention, identifying the types of risk that individual with disabilities face, ensuring that international efforts to track state-​sanctioned violence includes persons with disabilities, and grounding disability-​based persecution in valid asylum claims and other claims. Concluding observations of treaty bodies have been critiqued on many grounds, among them assessments of quality regarding clarity, specificity, accuracy, and depth of scrutiny, among others. Like other bodies, the CRPD is up against impossible time constraints, the need to achieve a balance in its constructive dialogue and is also the first body to tackle disability rights issues in any depth or consistency. Unlike many other treaty bodies, it is so often dealing with legal blank slates. The UNCRPD is not a sharply defined conceptual space and many of its concepts do not translate themselves into tangible state practice. That said, where the Committee has exercised its greatest influence perhaps is in identifying gaping holes in the legislative disability rights framework within States parties and pressing for greater progress in reform.211 The CRPD is exposing the ubiquity of discrimination on the basis of disability, noting the deep impact of legislative stereotyping and social policies that reinforce isolation. It will traverse new ground if it takes on the task of unpacking the equality and non-​discrimination principle in the CRPD and confronts head-​on the limitations of ‘equality-​as uniformity’ in conceptualizing non-​discrimination in human rights law. Unpacking discrimination, however, will require that the Committee move beyond its important but unbalanced preoccupation with issues such as legal capacity to address other equally important and 206 See, for example, CRPD, ‘Consideration of Reports submitted by States under Article 35, Concluding Observations—​Korea’ (29 October 2014), CRPD/​C/​KOR/​CO/​1, paras  13–​14. 207 See, for example, CRPD, ‘Consideration of Reports submitted by States under Article 35, Concluding Observations—​Mexico’ (27 October 2014), CRPD/​C/​DNK/​CO/​1, paras 55–​6; CRPD, ‘Consideration of Reports submitted by States under Article 35, Concluding Observations—​New Zealand’ (27 October 2014), CRPD/​C/​ NZL/​CO/​1, paras  61–​2. 208 See, for example, CRPD, ‘Consideration of Reports submitted by States under Article 35, Concluding Observations—​Gabon’ (1 October 2015), CRPD/​C/​GAB/​CO/​1, paras  52–​3. 209 See, for example, CRPD, ‘Consideration of Reports submitted by States under Article 35, Concluding Observations—​China’ (15 October 2012), CRPD/​C/​CHN/​CO/​1, paras  31–​2. 210 See, for example, Uganda CRPD, ‘Consideration of Reports submitted by States under Article 35, Concluding Observations—​Uganda’ (20 April 2016), para 9. 211 See, for example, CRPD, ‘Consideration of Reports submitted by States under Article 35, Concluding Observations—​Tunisia’ (13 May 2011), CRPD/​C/​TUN/​CO/​1.

The Committee on the Rights of Persons with Disabilities  575 highly neglected issues among them—​the pernicious connection between institutionalization and trafficking of persons with disabilities, incompatibilities between informed consent regimes and legal capacity, the implications of Article 12 for sentencing, as opposed to criminal culpability given the Committee’s stance on the illegitimacy of the insanity defence, the interrelationship between the CRPD and international criminal law, or the responsibility of international humanitarian organizations to apply CRPD principles in both the application and operation of international humanitarian law.212 In certain respects the Committee could be more explicit in respect of its recommendations.213 At times, indeed like other treaty bodies, it needs to move beyond vague directives to more specific guidance. In the political participation context, for instance, the Committee has done a good job of highlighting barriers, but less than impressive job of providing salient guidance to States—​and the bodies that will ultimately implement them, namely election management bodies. In the Korea report, the Committee’s admonition to ‘step up efforts to ensure that voting is accessible’ and ensure that ‘voting information is provided in all accessible formats’ is a welcome start.214 It could be enhanced, for instance, by providing for countries where election procedures and regulations are utilized what areas requires regulation and ensuring that the entirety of the electoral process is accessible Likewise, the Committee’s legitimate concern with disability policies that conflate disability prevention with disability rights, as in its review of Ecuador, nonetheless likely requires additional direction as to how states can address public health matters appropriately in policy frameworks.215 Much will depend, of course, on the specificity and credibility of information provided by NGOs. Given the historic lack of participation of DPOs in UN treaty processes, this too, is a process. In some instances, though, there is ample credible documentation on which the Committee can and should act. The sparse recommendation that Mexico ‘[u]‌gently define a strategy for the deinstitutionalization of persons with disabilities’ in the face of more than ten years of quality reporting by Disability Rights International seems weak.216 A pervasive call made by the Committee in respect of a vast number of implementation shortfalls is the adoption of a ‘strategy,’ ‘action plan,’ unspecified

212 For emerging scholarship on these issues, see Janet E Lord, International Humanitarian Law and Disability: Paternalism, Protection or Rights? in Michael Gill and Cathy Schlund-​Vials (eds), Disability, Human Rights and the Limits of Humanitarianism (Ashgate, 2014), 155–​78; Janet E Lord and Michael Ashley Stein, ‘Peacebuilding and Reintegrating Combatants with Disabilities’ (2015)19 International Journal of Human Rights 277; William Pons, Janet E Lord, and Michael Ashley Stein, Implications of Addressing and Elevating Crimes against Persons with Disabilities in International Criminal Law Elevating Crimes against Humanity (2019) (forthcoming). 213 Examples abound. Noble v Australia, for instance, involved the wrongful incarceration of an aboriginal with intellectual and mental disabilities, yet Noble’s indigenous status was not referenced by the Committee, thereby eschewing a valuable opportunity to engage on this issue. See Paul Harpur and Michael Ashley Stein, Indigenous Person with Disabilities and the Convention on the Rights of Persons with Disabilities: An Identity without a Home? (2018) 7 International Human Rights Law Review 165. 214 CRPD, ‘Consideration of Reports submitted by States under Article 35, Concluding Observations—​Korea’ (27 February 2013), CRPD/​C/​KOR/​1, para 56. 215 CRPD, ‘Consideration of Reports submitted by States under Article 35, Concluding Observations—​Ecuador’ (27 October 2014), CRPD/​C/​ECU/​CO/​1, paras 20, 21. 216 CRPD, ‘Consideration of Reports submitted by States under Article 35, Concluding Observations—​Mexico’ (16 October 2014; available at: http://​tbinternet.ohchr.org/​_​layouts/​treatybodyexternal/​Download.aspx?symboln o=CRPD%2fC%2fMEX%2fCO%2f1&Lang=en.

576  Janet E Lord and Michael Ashley Stein ‘measures’ and ‘training programmes’.217 This most surely reflects the significant underdevelopment of law and policy frameworks to assist in implementation even at bare minimum standards of acceptability. Still, it is unclear how vague directives issued to governments with little capacity to implement even the most detailed and finely tuned measures is particularly helpful. The CRPD Committee has sought to take the Convention forward by clarifying its ambiguous content, often taking on the most difficult issues, ones that resulted in constructive ambiguity in the UNCRPD text in the first place.218 The Committee has set out an expansive interpretation of many elements of disability rights, without always having the explanatory power to do so, in terms of good models of state practice. It adopted guidelines on the implementation of Article 14.219 There, the Committee rejected the permissibility of any detention on the basis of disability, irrespective of whether an individual represented a danger to himself or others, and declared the illegitimacy of disability-​based declarations of unfitness to stand trial and detention on the basis of such declarations. While the Committee rightly emphasized the importance of providing reasonable accommodations to individuals in the criminal justice system, it went no further in explaining how such reforms ought to take place, guidance that is essential for states in order for such reform to ever have a chance to taking root.220 It has thus far adopted general comments on Article 12 and Article 9.221 In each case, the Committee did not tackle some of the more difficult conceptual issues arising from the two articles. In its General Comment on Article 9, while repeating at least four times in the general comment that accessibility is a precondition for the enjoyment of other rights, the Committee refers, without explanation and in passing, to the ‘right to access’.222 Given that the general day of discussion revealed the conceptual difficulties of what has been reflected variously in international law, it is unfortunate that the Committee did not go farther to shed light on the explanatory power of accessibility. Likewise, the Committee sought to tackle arguably the most difficult issue in the CRPD in its inaugural general comment—​on Article 12.223 It would behove the Committee to better analyse the relation or intersectionality between disability and other identity characteristics by considering the form and manifestations of intersectional discrimination, the circumstances in which it occurs, the consequences of such discrimination and the availability of remedies and complaint mechanisms. The text adopted by the UNCRPD drafters for Article 12 reflects, like other contested provisions, constructive ambiguity that is purposeful and seeks to balance the aims of the treaty 217 For more on national actions plans in the context of disability, see E Flynn, From Rhetoric to Action: Implementing the UN Convention on the Rights of Persons with Disabilities (Cambridge UP, 2013). 218 For a brief discussion of this in the context of the right to be free from torture, see J Lord, ‘Shared Understanding or Consensus-​Masked Disagreement? The Anti-​Torture Framework in the Convention on the Rights of Persons with Disabilities’ (2011) 33 Loyola Journal International & Comparative Law 27. 219 Statement on article 14 of the Convention on the Rights of Persons with Disabilities, The right to liberty and security of persons with disabilities, adopted during the Committee’s 14th session, September 2015. 220 Ibid. 221 General Comments adopted by the Committee may be found at:  http://​www.ohchr.org/​EN/​HRBodies/​ CRPD/​Pages/​GC.aspx. 222 See CRPD, General Comment No 2, Accessibility, UN Doc CRPD/​C/​GC/​2, 11 April 2014. 223 See CRPD, General Comment No 1, Equal Recognition before the Law, UN Doc CRPD/​C/​GC/​1, 11 April 2014.

The Committee on the Rights of Persons with Disabilities  577 with state apprehension as to its far-​reaching implications that are at odds with extant legislation in most countries. Crafting a general comment on a difficult article has a clear ostensible appeal. The danger, of course, is that further explication not grounded in progressive state practice or put forward without pragmatic direction as to implementation will be ignored (or worse) by States parties. Recent sessions have addressed the right to live independently and in the community and the right to inclusive education, again reflecting the interest of the Committee in tackling some of the most complex and challenging articles of the Convention.224 These dialogues resulted in the adoption of General Comment 3 on women and girls with disabilities, General Comment 4 on the right to inclusive education and General Comment 5 on the right to independent living.225 This work of the Committee was followed by the adoption in 2018 of General Comment 6 on equality and discrimination and General Comment 7 on participation with persons with disabilities in monitoring the Convention.226 It is to be hoped that the Committee will use its platform in future sessions to provide concrete guidance on issues that are preconditions to a progressive disability law framework—​reasonable accommodation, the interrelationship between disability discrimination and other identity characteristics, and, more broadly, how UNCRPD concepts can transform rights protections for other disadvantaged groups. Future work of the Committee will allow a more comprehensive picture of its approach to the CRPD and the extent to which it is seeking to press the normative envelope on some of the more challenging issues of interpretation and application. It is perhaps premature to assess whether the Committee will embrace a conception of difference through the matrix of reasonable accommodation and inclusion and thus a more complex politics than that of other treaty bodies such as CERD and CEDAW. Thus far it has not delved into the more vexing questions raised by the CRPD and highlighted in the scholarship of Kayess and French, among others.227 In the same way that the critique of social model theorizing on gender has been complicated by transgenderism, what will the Committee make of the increasingly articulated shortcomings of the social model of disability? Are there elements of disability identity that centre on impairment? Does, as Kayess and French suggest, applying the social model of disability in a manner that eschews essentialism of any type actually thwart the disability rights project to any degree? Should we instead work towards a dis-​modernism as Lennard Davis suggests in his foray into the shortcomings of post-​modern identity scholarship?228 It may be that treaty bodies are not the appropriate venue for such critiques but, it is

224 For recent developments of the CRPD Committee, see OHCHR, CRPD Committee, http://​www.ohchr.org/​ EN/​HRBodies/​CRPD/​Pages/​CRPDIndex.aspx. 225 See CRPD,  General Comment No 3, Women and Girls with Disabilities, UN Doc CRPD/​C/​GC/​3, 26 August 2016; CRPD,  General Comment No 4, Inclusive Education, UN Doc CRPD/​C/​GC/​4, 26 August 2016; CRPD, General Comment No 5, Right to Independent Living, UN Doc CRPD/​C/​GC/​5, 31 August 2017. 226 See CRPD, General Comment No 6, Equality and Non-​Discrimination, UN Doc CRPD/​C/​GC/​6, 9 March 2018; CRPD, General Comment No 7, Participation with Persons with Disabilities in Monitoring the Convention, UN Doc CRPD/​C/​GC/​7, 21 September 2018. 227 Kayess and French, above n 1. 228 L Davis, Bending Over Backwards:  Disability, Dismodernism and Other Difficult Positions (New  York University Press, 2002).

578  Janet E Lord and Michael Ashley Stein hoped, at least some reconciling of these issues ought to be reflected in the work of the CRPD Committee.

15.8  Conclusion The CRPD launched its operations at a time when the United Nations human rights treaty system is facing on-​going pressures for reform and is beset by backlogs in the reporting process and resource challenges that impact the capacity of treaty bodies to undertake the depth of analysis and engagement with States arties contemplated by their mandates. This circumstance is borne out by the CRPD, which is already behind in its reporting functions, with few prospects of improvement given its limited meeting time. The drafters of the UNCRPD were well aware of the context within which human rights bodies work and the many challenges facing the treaty-​body system as a whole that will likewise face this newest of treaty bodies. The drafters accounted for some of these challenges in the resulting monitoring provisions. These include, for example, the provision to allow for an incremental increase in Committee members in line with increases in ratifications—​which has been achieved with the election of the full eighteen members—​and the provision regarding consultation by the CRPD with other treaty bodies to ensure consistency in reporting guidelines and avoidance of duplication. The credibility of the Committee rests on how it will respond to these and other challenges and ensure that its work processes and products are meaningful. A further challenge lies in the extent to which the Committee is able to effectively engage the diversity of NGOs, and in particular DPOs, that are vying for access to and participation in its processes and mechanisms.

Note i. Ibid, Article 6(2).

16 The Committee on Enforced Disappearances Olivier de Frouville

16.1  Introduction Someone knocks at your door in early morning: plain clothes police forces come to arrest you, without any warrant. They do it openly, they do not hide from your family or the neighbours. You are brought to the police station, beaten, or even tortured. Then transferred to another detention facility, preferably unofficial. You are not allowed to contact anyone, neither your family nor your lawyer. You have disappeared, you have been ‘placed outside the protection of the law’. Since your detention is hidden, your family and your friends are looking for you anywhere they can. But the only answer they get—​the only answer they can get—​when asking the police, the army or government officials about your whereabouts, is: ‘we don’t have her, we don’t know her’; or, ‘we know her as a suspected criminal or terrorist’. This is essentially the ‘pattern’ of enforced disappearance, since it was codified by Marchal Keitel’s Decree ‘Nacht und Nebel’ with the aim of terrorizing and repressing the Nazi’s opponents. After Nazism, this technique of terror was used during colonial conflicts along with torture and summary executions, before being implemented against ‘subversion’ by military dictatorships in Latin America from the beginning of the 70s. From then on it spread to the other continents: in the Middle-​East, with Lebanon, Syria, and Iraq; in Africa, with Algeria, Libya, and Eritrea; in Asia, with Sri Lanka, the Philippines, Nepal, North Korea; in Europe, with the Former Yugoslavia, Chechnya and Ukraine etc. This scourge even contaminated some of the oldest Western democracies with the US programme of ‘extraordinary renditions’ organized with the complicity or at least acquiescence of a number of European democracies. Enforced disappearances (ED) have been on the agenda of the international community since 1974, when the phenomenon was ‘discovered’ in Chile. Initially, the problem was to determine the appropriate legal category to qualify this practice, as there was no specific crime or definition in either domestic or international law. Enforced disappearances—​the act of forcefully rendering persons ‘invisible’—​suffered from an international invisibility of their own, that only compounded the problem. Four bodies have played a fundamental role in identifying, framing and bringing the problem to the fore:  the Working Group on Enforced Disappearances of the former Commission on Human Rights, the UN Human Rights Committee, and the

580  Olivier de Frouville Interamerican Commission and Court of Human Rights.1 Those bodies, among other accomplishments, showed that ED could be analysed as a complex violation of several human rights: the right not to be arbitrarily detained; the right to recognition as a person before the law; the right not to be subjected to torture or inhuman or degrading treatment; and the right to life. It was thus possible to find a state liable for an enforced disappearance on the basis of general conventions in the field of human rights such as the ICCPR or the Interamerican Convention on Human Rights, by understanding ED as a cluster of rights violations. This approach, however, was limited. There was something specific about ED which made it difficult to cover all its aspects from within human rights categories, or even with certain crimes, such as ‘abduction’ as defined under most of domestic criminal legislations. The idea thus emerged that specific treaties should be drafted. As early as 1988, the Interamerican Commission of Human Rights tabled a draft convention before the OAS General Assembly. The text was eventually adopted in 1994.2 At the universal level however, it was decided to adopt a more incremental step by step approach, following the method that had previously led to adoption of the Convention against Torture:  first a declaration, second a convention. In 1992, the ‘Declaration for the protection of all persons from enforced or involuntary disappearance’ was adopted.3 On this basis, a new process was started, first through informal meetings, and then within the UN bodies: a draft was tabled by the French expert of the Sub-​Commission on Human Rights, Louis Joinet; it was reviewed over two years by the Working Group on the Administration of Justice of the Sub-​Commission and then transmitted to the Commission after adoption by the plenary in August 1998.4 This draft convention was an innovative text, which provided for the setting up of a new Committee against enforced disappearances.5 For two years, the text was circulated among states for comments.6 Then, in 2001, France took the initiative to table a draft resolution providing for the creation of an intergovernmental working group in charge of reviewing the draft text and reporting to the Commission. Several states objected for essentially two reasons. Some argued that a text on this topic would be useless, as international law already covered the 1 The case law of the European Court of Human Rights was, at the beginning at least, much more limited. It only developed at the beginning of the 90’s, with the Kurdish cases. See W Decaux, ‘La problématique des disparitions forcées à la lumière des articles 2 et 3 de la CEDH’ in C Chassin (ed), La portée de l’article 3 de la Convention européenne des droits de l’homme (Bruylant, 2006); ‘La Cour européenne des droits de l’homme et les disparitions forcées’, Mélanges V Berger, Conseil de l’Europe (WLP, 2014). 2 Interamerican Convention on the Forced Disappearance of Persons (A-​60), adopted in Belem di Para, Brazil, 9 June 1994, 24th ordinary session of the General Assembly of the OAE. Entered into force on the 28 March 1996. In June 2007, the Convention was ratified by twelve States. 3 Resolution 47/​133 (18 December 1992). 4 Resolution 1998/​25 (26 August 1998). 5 See the text in annex of document E/​CN.4/​Sub.2/​1998/​19 (report of the Working Group on the administration of Justice of the Sub-​Commission). For a comment, see Federico Andreu, ‘The draft international convention on the protection of all persons from forced disappearance. Impunity, Crimes against humanity and forced disappearance’, I.C.J. Review, n°62–​63, Geneva, September 2001, and also the contribution of Wilder Tayler in the same issue. 6 See Commission’s resolution 1999/​38 of 26 April 1999 et 2000/​37 of 20 April 2000 and doc E/​CN.4/​2001/​69, with the comments of states and NGOs.

The Committee on Enforced Disappearances  581 phenomenon of EDs. They also argued that the Commission should put an end to its standard-​setting activities and concentrate on implementation. Their case drew on the fact that several recent standard-​setting processes had lasted for years and represented, in their view, very negative precedents.7 Other states were not opposed to such a drafting exercise, on the condition that no new supervision body would be created: according to those states, it would have been unreasonable to create a new committee at a time when the whole system was under review, with the prospect, maybe, of the creation of a single committee, in place of the existing ones.8 The Commission’s resolution which was finally adopted in 2001 was a compromise.9 A standard-​setting working group was created but it had its first session only two years later, in 2003. In the meantime, an independent expert was appointed with a mandate to ‘examine the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearance’ and to identify gaps ‘in order to ensure full protection from enforced or involuntary disappearance’. The 2002 report of the appointed expert, Professor Manfred Nowak, did cast light on some important gaps, such as the lack of universally agreed definition and the absence of any comprehensive set of obligations designed to prevent EDs.10 The same year, the Commission confirmed the creation of the standard-​setting working group in its resolution 2002/​41 of 23 April 2002. However it decided that the Group would have to elaborate a ‘draft legally binding normative instrument’, not a ‘convention’ as such, so as to comfort the position of states who favoured an optional protocol to the ICCPR or to the CAT. Furthermore, the working group was instructed to draft the ‘instrument’ on the basis of a range of texts, inter alia the Sub-​Commission draft international convention.11 Some states were indeed of the view that the text of the Sub-​Commission was too innovative, and could not serve as a starting point for discussion, thus the idea that it would be one reference among others in the drafting process. The Working Group in charge of drafting ‘the legally binding normative instrument’ (thereafter ‘the drafting working group’) held five sessions (including one informal session in September 2003) between January 2003 and September 2005. It thus took only two years and a half to draft the Convention, which makes it one of the fastest processes held in the United Nations. This is despite the fact that the diplomatic context was not favourable. At the beginning of the negotiation, it appeared that several factors would make progress difficult: the reluctance of many states to engage in a new standard-​setting exercise, as was 7 They referred in particular to the Optional Protocol to the CAT (ten years) and to the Declaration on the right and responsibility of individuals, groups and organs of the society to promote and protect universally recognized human rights and fundamental freedoms (thirteen years  !). For more details on the negotiation process, refer to Olivier de Frouville, ‘La Convention des Nations Unies pour la protection de toutes les personnes contre les disparitions forcées. Les enjeux juridiques d’une négociation exemplaire’, Droits fondamentaux, n 6, janvier–​ décembre 2006, www.droits-​fondamentaux.org. 8 Those states wanted the new text to be adopted as an optional protocol either to the ICCPR or the Convention against Torture, thus giving jurisdiction either to the Human Rights Committee or to the Committee against Torture. 9 Resolution 2001/​46 (23 April 2001). 10 See the report of the independent expert, doc E/​CN.4/​2002/​71. 11 Paragraph 13 of the resolution.

582  Olivier de Frouville mentioned earlier ; the significance of measures taken in the name of the ‘war against terror’ and the very bad example set by a number of democracies, and in particular by the United States of America, which was at that time involved in the programme of ‘extraordinary renditions’. Other factors included the very strong opinion shared by a number of states that enforced disappearances was essentially a Latin-​American problem, which belonged to the past. Much persuasion was needed to reverse those trends. The process was essentially led by France and some important states of the Grulac (the Latin America and Caribbean regional Group), and also some European States like Greece, Spain and Switzerland. But the Europeans were divided on some issues, which gave rise to complications. A  number of other states also resisted, although they never expressed a will to obstruct the negotiation. Among those were a number of big powers:  the United States, Russia and China. From beginning to end, NGOs contributed greatly to the process. The very idea of having international instruments dealing with enforced disappearances had emerged from the activism of associations of families of the disappeared in Latin America. The federation of these associations, called FEDEFAM, initiated the process and was there—​together with others, like the AFAD, the Asian Federation—​to witness and give its expertise throughout the negotiation. Beside those associations of victims were the principal international human rights NGOs, such as Amnesty International, the International Commission of Jurists, Human Rights Watch, the International Federation of Human Rights (FIDH) or the International Federation of Christians Against Torture (FIACAT). The working group was chaired by an experienced and skilful French diplomat, late Ambassador Bernard Kessedjian. His politeness and firmness were a central element in moving the group rapidly to a final text. Although the Convention was almost lost in the middle of the reforming process of the international system of protection of human rights—​with the end of the late Commission on Human Rights, and the creation of a new Council of Human Rights—​the text finally went through and, pushed by the active lobbying of NGOs, was adopted by the General Assembly on 20 December 2006, in resolution 61/​177. It was eventually signed in Paris by the first forty-​nine States, on 6 February 2007. A Coalition against Enforced Disappearances was created by the NGOs who participated in the process to promote early entry into force and the effective implementation of the Convention. The Convention entered into force on December 2010, after twenty ratifications. The Committee therefore held its first session at the UN Office in Geneva from 9 to 11 November 2011.12 By 1 October 2019, ninety-​eight states had signed the Convention and sixty-​two had ratified it.13 In the framework of this study, we will discuss both the structure (section 16.2) and the functions (section 16.3) of the Committee on Enforced Disappearances.14 12 See the first annual report of the Committee on Enforced Disappearances, A/​67/​56 (2012). 13 See the UN treaty collection for an update: https://​treaties.un.org. 14 On the substantial part of the Convention, see, in French, O de Frouville, ‘La Convention des Nations Unies pour la protection de toutes les personnes contre les disparitions forcées : les enjeux juridiques d’une négociation exemplaire’, Droits fondamentaux, n 6, janvier–​décembre 2006, www.droits-​fondamentaux.org. And, in English, G Citroni and T Scovazzi, The Struggle against Enforced Disappareances and the 2007 United Nations Convention

The Committee on Enforced Disappearances  583

16.2  The structure of the Committee The new Committee is the result of the negotiation that took place within the Working Group in charge of drafting a ‘draft legally binding normative instrument’. The relevance of its creation was a central issue. Eventually, the discussions led to the creation of an autonomous Committee.

(a)  The debate: is there a need for a new body ? From the very beginning of the process, one of the most contentious issue was whether or not there was a need for a new committee on enforced disappearances. Most states and NGOs were agnostic on this issue; they said they would favour the most effective mechanism, whatever its form. However, some states took a firm stand from the very beginning against a new Committee. They had two main arguments. The first one was easily put aside: how would the committee coexist with the existing Working Group of the Commission (and now the Council) on Human Rights dealing with enforced disappearances ? To this, Manfred Nowak answered at the first session that if a new Committee were to come to life, the Working Group would still remain in office for a number of reasons. First, the Group had a universal geographic mandate. As long as the convention was not universally ratified, the Group would thus remain useful. Second, the Group had a humanitarian mandate, aiming as a priority at finding the disappeared persons, while the Committee would have a wider mandate of monitoring, controlling and investigating.15 Nowak also noted that the same question had been raised in relation to torture where two mechanisms coexisted in complementary fashion: the Committee against Torture and the Special Rapporteur against torture.16 Enforced disappearances are thus one prism to understand the fundamental complementarity of treaty and non-​treaty bodies. The second argument was more significant, as it referred to a quite popular theme among states: the proliferation of supervisory bodies. Switzerland, Turkey, Egypt, and some others took up the argument at the first session and bluntly opposed the drafting of a new autonomous convention and the creation of a new committee. Instead they proposed the adoption of an optional protocol either to the CAT or, preferably, to the (Martinus Nijhoff Publishers, 2007); M Lot Vermeulen, Enforced Disappearance. Determining State Responsibility under the International Convention for the Protection of All Persons from Enforced Disappearance (Intersentia, 2012). 15 E/​CN.4/​2003/​71, § 32. See also E/​CN.4/​2004/​59, §§ 161–​63 and E/​CN.4/​2005/​66, §§ 149–​50. 16 Now a third body exists in the field of the prevention of torture, with the Sub-​Committee against torture. And the same overlapping can be observed about discrimination against women with the CEDAW and the Human Rights Council’s working group or with the CERD and the Special rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, the Working Group on people of African descent and the special rapporteur on minority; or with the CRPD and the Special rapporteur on the rights of persons with disabilities etc. Rather than the exception, this approach of duplicating a treaty body with a special procedure is in fact becoming the rule.

584  Olivier de Frouville ICCPR. They underlined the fact that ED were violating a series of rights recognized by the Covenant and that the HRC already had a substantial case-​law dealing with it. Also a number of states thought that as only a few states had a situation of enforced disappearances, it would be disproportionate to create a dedicated body—​in addition to the already existing Working Group. The arguments had some weight as it was put forward in the context of the debate on the overall reform of the system of the treaty bodies and a professed need to streamline procedures. All states agreed on the fact that there were too many treaty bodies (seven at that time), implying increasingly heavy reporting obligations for state parties. Different solutions were contemplated at the time, the most ambitious being the setting up a of single generalist committee, which would have replaced the seven specific bodies. This idea was used to oppose the creation of a new Committee, essentially implying that all new projects should be put on hold until the reform. Even more restrictive (but also quite isolated) China proposed that the supervision task should be delegated to the assembly of the states parties. This debate posed a serious risk to the whole negotiation. It could have derailed the focus on substantive issues, and much time could have been spent repeating the same arguments without moving forward. This is why the Chair, Bernard Kessedjian—​using his authority—​proposed a precise agenda for the drafting working group, according to which substantial issues would be discussed first and then, in second, procedural matters. The latter themselves would be divided into two items: the functions would be contemplated first, and the nature of the body only in the second place. Indeed, it seemed that the nature of the body was inherently linked to the functions it would undertake. Consequently, no final decision was taken on the nature of the supervision body until the last session. Several things happened between the first and the last session that made it possible to come to an agreement about the final text. First, Bernard Kessedjian managed to organize several limited debates where the matter could be discussed thoroughly. Arguments in favour of a new Committee progressively emerged and gained support among a growing number of delegations. Conversely, arguments against the new Committee appeared weak and non-​decisive. Alternative proposals were made, such as the setting up of a ‘sub-​committee’ of the HRC (an idea promoted by Switzerland). Second, the debate on the setup required to effectively combat disappearances led to the conclusion that it would be difficult for an existing committee to undertake those new functions. There were practical problems: obviously, the HRC was already overburdened and facing serious difficulties in achieving its own limited mandate. If it had to undertake new functions, the number of experts within the Committee should be increased. That would create legal problems, as any modification of the structure of the Committee could only be decided through an amendment of the Covenant, which implied going through a very complicated process. Furthermore, a study by the Secretariat compared the costs of creating a new body and enlarging the composition of the Committee (or creating a sub-​committee composed of additional members), and it appeared that there was no substantial advantage in the second solution.

The Committee on Enforced Disappearances  585 At the last session, Bernard Kessedjian presented a ‘package’ of substantial and procedural provisions and clearly took a stand in favour of a new Committee as the most ‘realistic’ solution. But the package also included some compromise provisions, to take into account the objections of the countries who insisted on the need to wait for the outcome of the reform process. The package was accepted by all delegations, although a few of them expressed reservations in their statements made at the end of the session. The Convention as it has been adopted, therefore, sets up an autonomous Committee against Enforced Disappearances.

(b)  An autonomous committee In the end, the negotiation therefore led to the setting up of a committee of independent experts, similar to other autonomous committees that are part of the wider UN system of treaty bodies. To reach that result, however, compromises had to be made that created certain constraints on the committee. A sunset clause was included (Article 27), so as to revisit the issue of the need for an autonomous committee at a later stage. The Committee is also instructed under article 28 to cooperate closely with other relevant mechanisms. Equally, it is interesting to note that states have limited the ratione temporis competence of the Committee under article 35 to ‘enforced disappearances which commenced after the entry into force of the Convention.’

(c)  A committee of independent experts Article 26(1) of the Convention provides that ‘[t]‌he Committee shall consist of ten experts’. The number of ten experts may at first sight appear low, compared to the eighteen experts of the HRC, the CESR, the CRC or the CERD or the twenty-​three experts of the CEDAW. In fact, it is a very good compromise if one looks at the first proposals tabled in the working group, mentioning only five experts (like the WGEID), and if one contemplates the fact that the Committee, although in charge of multiple functions, only deals with one precise phenomenon—​compared to the multiplicity of issues that the HRC or the CODESOC have to deal with. In comparison, the CAT, also a phenomenon-​specific body, is also composed of ten experts and does not seem understaffed. The members of the Committee are elected for a four-​year term and are eligible for re-​election only once (Article 26(4)). This term is now standard for the treaty bodies. Still, it is a short term for a body with quasi-​judicial functions.17 The limitation on the number of successive mandates, however, is an innovation, shared with the 17 Compare to the terms of the judges of international courts : nine years, for instance, for the judges of the ICJ or the ICC ; six years for the judges of the ECHR. At the same time, judges of the ATUN and of the ATILO are elected for three years; members of the appellate body of the DSU at the WTO are elected for four years.

586  Olivier de Frouville contemporaneous CRPD: in all the other committees, re-​election is possible upon re-​ nomination. It seems that those two new texts reached a balance on this issue since a member can totalize eight years of mandate in a row, allowing a certain continuity of membership and at the same time a regular renewal of the composition of the Committee. The first elections were held during the first meeting of the State parties on 31 May 2011. Ten members were elected by secret ballot, among them five were chosen by lot to serve for a duration of two years only, in accordance with article 26(4) of the Convention. Members are to be elected according to equitable geographical distribution with ‘due account’ of relevant legal experience and balanced gender representation. In 2011, the geographical criteria was more or less respected, with two members from the Asian Group (Iraq and Japan), two members from the African Group (Senegal and Zambia), one member from the Eastern European Group (Albania), two members from the Latin American and Caribbean Group-​GRULAC (Argentina and Uruguay), and three members from the WEOG (France, Germany and Spain). On the other hand, ‘gender balance’ was hardly implemented with only one woman among nine men. The two following elections brought more balance in terms of gender, with two women but also a certain geographical imbalance with four experts from the GRULAC (Argentina, Colombia, Mexico and Peru) and none for the African Group. The French expert, Professor Emmanuel Decaux, was elected as a chair of the Committee at its first session. He was re-​elected Chair in 2013 and 2015. Decaux’s leadership during the first years of the Committee has clearly been a major factor of its success. Like other comparable bodies, the Committee on enforced disappearances has the right to establish its own rules of procedure (Article 26 (6)), and is to be provided by the Secretary-​General ‘with the necessary means, staff and facilities for the effective performance of its functions’ (Article 26 (7)). The Committee adopted its own rules of procedure at its first and second sessions, drawing from the innovations of the Convention and from the experience of other Committees.18 Again and similarly to the other committees it is supported by the UN Office of the High Commissioner for Human Rights based in Geneva. Article 26(1) provides that the experts ‘shall serve in their personal capacity and be independent and impartial’. The Rules of procedure expand this general statement. Article 10-​2 of the Rules gives a definition of independence by stating that it ‘requires that they serve in their personal capacity and shall neither seek nor accept instructions from anyone concerning the performance of their duties. Members are accountable only to the Committee and their own conscience’. Furthermore Rule 47 is specifically dedicated to the issue of ‘conflict of interest’, setting up the principle, among others, that a member shall not be present or participate in the activities of the Committee on a case or situation for which he may find himself in a conflict of interest. In addition, the Committee has adopted the so-​called ‘Addis Ababa guidelines’ on the independence



18 Doc CED/​C/​1, 22 June 2012.

The Committee on Enforced Disappearances  587 and impartiality of members of the human rights treaty bodies endorsed by the 24th Annual Meeting of Chairpersons of Human Rights Treaty Bodies in June 2012.19 The independence of the Committee also results from the public character of its activities, except the complaint procedures, which require confidentiality to protect the interests of the parties. Several attempts were made, during the negotiations, to limit this publicity and to keep confidential most of the work of the committee.20 States may well be wary of enforced disappearances being exposed as a practice that occurs within their jurisdiction. Nonetheless, all provisions to that end were removed. Article 36 states that the Committee shall submit an annual report to the GA.21 The Rules of procedure strengthen the public dimension of the Committee’s work. Rule 27 states that the meetings of the Committee and its subsidiary bodies shall be held in public unless otherwise stated in other provisions or when the Committee decides to meet in private. In a more innovative way, Rule 55 provides for the Committee organizing ‘days of general discussion on the Convention’ ‘in order to enhance a deeper understanding of the content and implications of the Convention’, through a debate with all concerned stakeholders.22 Similarly, Rule 56 on the drafting of general comments on the Convention allows the Committee to circulate its drafts to all stakeholders in order to get their comments. Although it has not adopted any general comment yet, it followed an open process of consultation when drafting its ‘guidelines’,23 but also its ‘statement on enforced disappearance and military jurisdiction’,24 as well as its ‘Guiding principles for the search for disappeared persons’.25

(d)  The sunset clause and the need for cooperation Bernard Kessedjian’s ‘package’ implied some concessions for states who opposed the creation of the new Committee. The most visible one is probably the sunset clause of article 27, which makes the Committee a precarious institution: 19 See Decision adopted by the Committee during its 3rd session, 7 November 2012, annexed to the second annual report of the Committee, A/​68/​56 (2013), 32. 20 See in particular E/​CN.4/​2005/​66, paras 144–​6. Bernard Kessedjian proposed confidentiality for urgent actions, complaint procedures, and on site investigations, provided that this confidentiality could be lifted in case the state refused to cooperate—​a system inspired from the European Convention on the Prevention of Torture. This proposal was opposed by all NGOs and some states as a grave retrogression in comparison with the public nature of the procedures set up by other conventions. Confidentiality was acceptable for the complaint procedures only during the contradictory phase, but should not be applicable to the ‘views’ adopted by the Committee. 21 See also Rule 42 of the Rules of Procedure. 22 In practice, the Committee has held discussions with various stakeholders in different formats: see in particular the first report A/​67/​56, paras 18–​20, the second report A/​68/​56, paras 12–​16 and the third report A/​68/​56, paras 14–​16 on ‘thematic discussions’ held in private or public sessions. 23 When drafting its guidelines on the relations with NGOs, the Committee made the drafts available on its website for comments. It also closely consulted with the International Coordinating Committee of National Human Rights Institutions when drafting its guidelines on the relations with NHRIs. See third report A/​69/​56, paras 30 and 32. 24 Adopted by the CED on its eighth session, 13 February 2015. Annex III of the fourth annual report A/​70/​ 56 (2015). See also the third annual report, A/​69/​56 (2014), paras 14–​16: the Committee held a private meeting during its fifth session and a public thematic discussion on enforced disappearance and military justice. 25 CED/​C/​7. On the process of drafting the Guiding principles, see the Committee’s annual report on its fifteenth and seventeenth sessions, A/​74/​56, 2019, paras 62–​65.

588  Olivier de Frouville A Conference of the States Parties will take place at the earliest four years and at the latest six years following the entry into force of this Convention to evaluate the functioning of the Committee and to decide, in accordance with the procedure described in article 44, paragraph 2, whether it is appropriate to transfer to another body—​without excluding any possibility—​the monitoring of this Convention . . .’

The Chair of the drafting working group introduced this wording as ‘a third option which would fit in with the proposal by the United Nations High Commissioner for Human Rights to study the possibility of merging all the treaty-​monitoring bodies into one’.26 This proposal was considered acceptable by all delegations. It addressed the main concern of the opponents to a new committee, that is, not anticipating or even preempting the future reforms of the treaty bodies, or risk adversely affecting them. At the same time, delegations who favoured the creation of the committee had the satisfaction of seeing it come to life, even for a limited period of time, with the hope that, once in place, it would be difficult to remove it, or only in the context of a reform which would replace all the treaty bodies by a single Committee. In a conference held in Geneva on the occasion of the 10th anniversary of the Convention, the former chair of the Committee, professor Emmanuel Decaux has described the meeting to be held by States parties under article 27 as a ‘technical stage’.27 Indeed, the Conference of the State Parties which was held on the 19th of December decided by consensus that the Committee should continue to monitor the Convention.28 It is highly predictable that this will not change, at least until an overall reform of the system of treaty bodies takes place, which still belongs in the realm of speculation. The second provision which was included as a compromise was required, as a principle, by Switzerland and formulated by the Chair. Article 28 is supposed to ensure that the Committee does not duplicate other existing bodies whether Charter (eg, the WGEID), or treaty-​based (eg. the HRC or the CAT) 1. In the framework of the competencies granted by this Convention, the Committee shall cooperate with all relevant organs, offices and specialized agencies and funds of the United Nations, with the treaty bodies instituted by international instruments, with the special procedures of the United Nations and with the relevant regional intergovernmental organizations or bodies, as well as with all relevant State institutions, agencies or offices working towards the protection of all persons against enforced disappearances.



26

E/​CN.4/​2006/​57, para  70.

27 http://​www.ohchr.org/​Documents/​HRBodies/​CED/​10thAnniversary/​EmmanuelDecaux.pdf

See also his closing speech at the 9th session of the Committee, which pleads convincingly in favour of the confirmation of the Committee: ‘Il n’y a pas de ‘plan B’. Un tel pari n’aurait aucun sens, ce serait perdre tous les acquis obtenus depuis 4 ans, ce serait revenir 30 ans en arrière  . . .  ’ http://​tbinternet.ohchr.org/​Treaties/​CED/​ Shared%20Documents/​1_​Global/​INT_​CED_​OCR_​9_​23889_​F.pdf. 28 See the report of the Conference of the States Parties to the International Convention for the Protection of All Persons from Enforced Disappearance on its first session, held on 19 December 2016, CED/​CSP/​2016/​4, 18 January 2017.

The Committee on Enforced Disappearances  589 2. As it discharges its mandate, the Committee shall consult other treaty bodies instituted by relevant international human rights instruments, in particular the Human Rights Committee instituted by the International Covenant on Civil and Political Rights, with a view to ensuring the consistency of their respective observations and recommendations.

Thus the Committee has a legal duty both to cooperate with a wide variety of institutions and to consult ‘other treaty bodies’, with a special mention for the HRC, as the body which has already developed a case law on ED on the basis of the Covenant.29 Rule 45 of the Rules of Procedure confirms that duty of cooperation, not only with the HRC, but also with the CAT and the Sub-​Committee under the OPCAT ‘with a view to ensuring the consistency or their respective observations and recommendations’. The WGEID is also mentioned in a separate paragraph as another privileged partner. In practice, the CED has rapidly implemented those provisions through multilateral or bilateral meetings. The chair has regularly participated in the annual meeting of the chairs of treaty bodies.30 In March 2012, during its second session, it held a general public meeting with a whole range of UN bodies, including the WGEID.31 In November of the same year, during its third session, the Committee also held a meeting with Sir Nigel Rodley, member of the Human Rights Committee, who shared the jurisprudence and experience of the HRC in the field of enforced disappearances.32 In 2014, the Committee met other actors, including the Committee on the right of the child and the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-​recurrence, as well as with the Voluntary Fund for Victims of Torture.33 The cooperation with the WGEID has been ongoing since the very first year of the Committee.34 An annual meeting is scheduled and measures have been taken so that the sessions of the two bodies overlap at least once a year to facilitate exchanges and joint events. Consultations cover both substantial35 and procedural issues.36 Cooperation with other important stakeholders was also rapidly formalized in two important documents:  a document on the relationship between the CED and civil

29 See also as regards this, Rule 44 and 45 of the Rules of Procedure. Rule 45(2) specifies that the Committee ‘shall also regularly coordinate and exchange relevant information with the Working Group on Enforced or Involuntary Disappearances’. 30 The chair of the CED was elected as the chair of the 27th meeting held in San José, Costa Rica in June 2015. See A/​70/​302, para  8. 31 See first report of the Committee, A/​67/​56 (2012), para 39. 32 Ibid, para 21. 33 Fourth annual report of the Committee, A/​70/​56, paras 33–​36. 34 The first meeting was held during the first session of the Committee in November 2011: see the first annual report A/​67/​56, paras 25–​26, during which it was decided that the two bodies will hold an annual meeting. 35 In 2013, the two bodies identified issues of common interest, ie, military tribunals, enforced disappearance in armed conflict and the difference between missing persons and victims of enforced disappearance. Third annual report of the Committee, A/​69/​56, para 26. Also, the same, year, three members of the Committee participated in the thematic discussion on enforced disappearance and economic, social and cultural rights held by the WGEID in preparation of its thematic study on the issue: para 27. 36 See the second report A/​68/​56, para 19: the Committee and the WGEID, ‘A way to process the requests for urgent actions submitted, on behalf of victims of enforced disappearances, in parallel to both bodies’.

590  Olivier de Frouville society actors, adopted at its fifth session;37 and a document on the relationship between the CED and National Human Rights Institutions, adopted at its seventh session.38

(e)  Limitation with regard to the ratione temporis competence During the negotiation, some States also insisted that the Committee should have a limited ratione temporis jurisdiction. They clearly did not want the Committee to handle past cases of ED. This resulted in article 35 which states that  1. The Committee shall have competence solely in respect of enforced disappearances which commenced after the entry into force of this Convention. 2. If a State becomes a party to this Convention after its entry into force, the obligations of that State vis-​à-​vis the Committee shall relate only to enforced disappearances which commenced after the entry into force of this Convention for the State concerned.

Was this provision really necessary? Article 28 of the VCLT already stipulates clearly that the provision of a treaty ‘does not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party’. However, it should also be recognized that the situation of EDs is quite specific. EDs have been analysed as a continuous act up to the moment when the case is ‘clarified’, that is, until the disappeared person, or his/​her body has been found.39 It was quite clear that some states wanted to have an explicit ratione temporis clause in the treaty and if they had not succeeded in having it, they would have made a reservation on this aspect. The limited ratione temporis jurisdiction could thus be seen as a measure to entice states to ratify the Convention who otherwise might have hesitated in doing so, even though it may limit the reach of the Committee and its ability to investigate past abuses. In practice, the Committee was rapidly confronted with the issue when it reviewed the reports of Uruguay (April 2013),40 Spain (November 2013),41 but also of Germany (March 2014).42 In order to clarify its position on the matter for the future, the Committee decided to adopt a ‘statement on the ratione temporis element in the review 37 CED/​C/​3. 38 CED/​C/​6. 39 This continuous nature is also the basis for a derogation to statute of limitations:  see Article 8 (1)  of the Convention. See also the WGEID’s ‘General Comment on enforced disappearance as a continuing crime’, in Compilation of WGEID’s General Comments, 23. See also InterAmerican Court for HR, Radilla-​Pacheco v Mexico, 23 November 2000, paras 239–​41. 40 CED/​C/​URY/​CO/​1, in part paras 12–​13 on enforced disappearances that occurred the time of the military dictature. 41 CED/​C/​ESP/​CO/​1, in part paras 31–​2 about enforced disappearances committed during the Franco era. See also the Chair’s concluding remarks during the dialogue: ‘. . . it was necessary to distinguish between, on the one hand, the obligations of the State party and the competence of the Committee in respect of particular matters, and on the other, the need for the Committee to develop an overview of the situation in a particular country’. CED/​C/​ SR.63, para 26. 42 CED/​C/​DEU/​CO/​1, in part paras 24–​5 in relation to reparation for past atrocities including by the Nazi regime. See also paras 12–​13 about the complicity in extraordinary renditions.

The Committee on Enforced Disappearances  591 of reports by State parties’ under the CED, on 15 November 2013 during its fifth session.43 In the statement, the Committee clearly distinguishes between the individual complaint procedure and the procedure for the review of reports by States parties. If it is precluded from examining individual cases of disappearances that commenced before the entry into force of the Convention for the State concerned, it remains open for the Committee to question states on present compliance with their obligations under the Convention, even in relation to past disappearances: 2. Article 29 deals with the ‘obligations under this Convention’, in the light of the ‘international law in force for this State party’ and requests that the reporting process take into consideration the full range of its obligations today; 3. If information related to the past is useful during the reporting process as a means to understand fully the challenges of the present, the Committee ought to direct its attention in its concluding observations to the current obligations of the State concerned;

16.3  The functions of the Committee The Committee fulfils the usual functions of a treaty body, but some improvements have to be noted in comparison to other treaties. In addition, a number of functions have been added, to take into account the specificities of ED.

(a)  ‘Ordinary but improved’ functions The relevant traditional functions of treaty bodies are the reviewing of States parties’ reports, deciding upon complaints—​both individual and interstate—​and undertaking inquiries. i. State party reports (Article 29) This provision tries to draw lessons from the practice of pre-​existing treaty bodies. States are bound to submit to the Committee ‘a report on the measures taken to give effect to its obligations under this Convention, within two years after the entry into force of this Convention for the State Party concerned’. The Committee, like the HRC and others, ‘shall issue such comments, observations or recommendations as it may deem appropriate’, to which the State party ‘may respond . . . on its own initiative or at the request of the Committee’. But the provision also breaks with the practice of ‘periodic reports’: states have no obligation to submit periodic reports within two years, as in the CERD, or four years as for the CEDAW. Rather, according to paragraph 4 of article 29,



43 Included in Annex V of its third annual report, A/​69/​56, 31.

592  Olivier de Frouville ‘[t]‌he Committee may also request States Parties to provide additional information on the implementation of this Convention.’ The idea of the drafters was to lighten the reporting obligations of States and also to stick to the new practice of treaty bodies of following-​up on the most specific and pressing issues. In fact, the Committee has devised a two-​tier procedure. On the one hand, Rule 54 provides for a follow-​up procedure under which the Committee may indicate ‘whether . . . it appears that some of [the State party’s] obligations under the Convention have not been discharged or that sufficient information has not been provided and, therefore, request the State party to provide the Committee with follow-​up information to concluding observations by a specified date’. One or two rapporteurs on follow-​up are to be designated to assess the information submitted by the State party. Practically, the Committee has by and large followed the HRC’s methods of work.44 Three recommendations are selected for the follow-​up and the state is instructed in a paragraph of the concluding observations to provide ‘relevant information’ within one year. The rapporteurs present a report to the Committee once a year with their assessment, based on the State party’s response and on information submitted by other sources. The Committee thus ‘grades’ the responses of the State party to determine whether it has complied, and to what extent, with the recommendation selected in the concluding observations.45 On the other hand, the Committee relies on Article 29§4 to systematically request from the States parties ‘additional information’ on the implementation of all its recommendations included in the concluding observations within a specific deadline, which is generally six years,46 but can be shortened to three years for the most serious situations.47 ‘Additional information’ thus received do not necessarily lead to a new ‘dialogue’ in the presence of the delegation. By October 2019, only Mexico—​in view of the seriousness of the situation—​was invited to a formal review in Geneva, concluded with the adoption of ‘follow-​up’ observations.48 In its Rules of Procedure, the Committee also provided for a three-​steps approach to non-​cooperative States parties who fail to submit reports and additional information: first a reminder sent to the state concerned;49 second, a reference of the state’s failure in the Committee’s annual report; third, the review of the State party’s steps to implement the convention in the absence of a report.50 Similarly, the Committee also adopted the possibility of reviewing the report of a State party in the absence of the delegation, when the state fails to respond to an invitation to have representatives attending the meeting.51 44 See CCPRC/​C/​108/​2, 21 October 2012. 45 See Fourth annual report of the Committee, A/​70/​56, para 44; Report on follow-​up to concluding observations of the Committee on Enforced Disappearances (7th session, 15–​26 September 2014), CED/​C/​7/​2. 46 See COBs on France, the Netherlands, Spain, Uruguay. 47 See COBs on Iraq, CED/​C/​IRQ/​CO/​1, para 43 and Mexico. CED/​C/​MEX/​CO/​1, para 50. 48 See follow-​up observations on the additional information submitted by Mexico in application of article 29, paragraph 4 of the Convention. CED/​MEXM/​FAI/​1, 4 December 2018. 49 See fourth annual report, A/​70/​56 (2015), paras 48–​9 for the list of reminders and the states that submitted their reports as a result. 50 Rule 50 of the Rules of Procedure. 51 Rule 51 of the Rules of Procedure.

The Committee on Enforced Disappearances  593 Another interesting feature of the Rules is to provide officially for ‘alternative reports’ to the state report. Rule 52 thus gives a formal existence to the essential contribution of NGOs and other civil society organizations in the process of reviewing the reports. All those contributions are put on the website, and are publicly accessible. Informal and private meetings are also held between members of the Committee and NGO representatives in parallel to the session. ii. Complaints Complaints were not included in the first draft presented by Bernard Kessedjian. The Chair of the drafting working group was clearly focusing his attention on reports and urgent action and was not convinced of the usefulness of complaint procedures which, in his view, could only be optional—​and thus probably not accepted by States parties (or at least not accepted by those states where disappearances were taking place). Nevertheless NGOs and some states insisted that provisions on individual and inter-​state procedures be included, as it appeared to be one a central feature in other comparable conventions. Other States firmly opposed, arguing that such procedures already existed in the ICCPR. The principle of an individual complaint procedure was accepted at the third session (October 2004)  and a concrete proposal was made by the Chair at the fourth session (January–​February 2005). But the inter-​state complaint procedure was only inserted in the text at the last session, after repeated proposals by an NGO and Canada, who underlined the fact that these procedures, although never used at the universal level, had already been triggered at the regional level (before the ECHR) and in any case could represent a factor of deterrence for potential violators.52 Both individual and inter-​state procedures are now optional and states need to make special declarations for the Committee to have jurisdiction.53 The individual complaint procedure (Article 31) is quite similar to other comparable procedures. One distinct feature, however, is the mention in the text of the Committee’s power to request a State party to take interim measures.54 Existing committees (HRC, CAT, CERD) had attributed themselves this power in their respective rules of procedures.55 The power is here explicitly conferred on the Committee.56 It thus confirms the practice of the existing treaty bodies in this regard. More generally, it is a way to recognize the increasing importance of this procedural instrument in the practice of international tribunals. One can see how it might be particularly useful in the case of EDs, where a ‘race against time’ is often involved and urgent measures may be

52 See E/​CN.4/​2006/​57, para  64. 53 By 1 May 2016, nineteen states had made declarations for both article 31 and 32:  Albania, Argentina, Austria, Belgium, Bosnia and Herzegovina, Chile, Ecuador, France, Germany, Lithuania, Mali, Montenegro, the Netherlands, Portugal, Serbia, Slovakia, Spain, Ukraine, Uruguay. Japan has made a declaration only with regard to Article 32. 54 See Article 31(4) and Rule 70 of the Rules of procedure. 55 See for instance Rule 92 of the HRC’s Rules of procedure. 56 See also Article 6 of the Optional Protocol on communications to the CRC and Article 5 of the Optional Protocol to the ICESCR.

594  Olivier de Frouville necessary to locate the disappeared, while guarding the state against further action that might compromise that person’s rights. Like other fellow Committees, the CED has set up in its Rules of Procedure a follow-​ up procedure on views adopted on individual cases: within six months, the State party concerned has to submit a written response detailing the actions taken to implement the recommendations.57 The Committee adopted its first ‘views’ in a case against Argentina during its 10th session in March 2016.58 The inter-​state procedure (Article 32) is more unusual. Other inter-​state procedures before UN treaty bodies59 have more to do with conciliation than with a quasi-​judicial procedure. The states concerned are supposed to try to solve the problem themselves and only if they fail to do so will a Committee (for instance the HRC) ‘make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for human rights and fundamental freedoms as recognized in the present Covenant’. The result of the procedure is a simple mention of the facts and of the solution reached in the report of the committee. Article 32 of the Convention is clearly more open: A State Party to this Convention may at any time declare that it recognizes the competence of the Committee to receive and consider communications in which a State Party claims that another State Party is not fulfilling its obligations under this Convention.

The brief language of Article 32 gives way to a more judicial procedure. It is still uncertain however what the CED will make out of it. Until then, the Rules of Procedure seem to have adopted a ‘classical’ approach to the inter-​state procedure,60 but nothing prevents the Committee, in the future, from adopting another interpretation. iii. Inquiries (Article 33) The procedure of inquiry was less ordinary than the two others at the time of its adoption, as it could only be found in the CAT. Since then, such procedures have been included in all subsequent protocols.61 In the CED, however, the triggering of the procedure is not conditioned by reports of ‘systematic’ practice of ED as required in the CAT and in the optional protocols subsequently adopted; systematic or ‘gross’ violations are dealt with in the following article concerning ED amounting to crimes against humanity (see below). Here, the procedure can be initiated ‘[i]‌f the Committee receives reliable information indicating that a State Party is seriously violating the provisions of 57 See Rule 79 of the Rules of procedure. 58 See CED/​C/​10/​D/​1/​2013 and the press release: http://​www.ohchr.org/​EN/​NewsEvents/​Pages/​DisplayNews. aspx?NewsID=18494&LangID=E. See also the fourth annual report of the Committee, A/​70/​56, para 71. 59 See Article 22 of ICERD; Articles 41 to 43 of the ICCPR ; Article 21 of CAT ; Article 74 of CMW; Article 10 of the Optional Protocol to the ICESCR; Article 12 of the Optional Protocol on communications to the CRC. 60 See Rules 81 to 87 of the Rules of Procedure. 61 That is Articles 8 and 9 of the Optional Protocol to CEDAW, Articles 6 and 7 of the Optional Protocol to the CRPD, Articles 11 and 12 to the Optional Protocol to ICESCR and article 13 of the Optional Protocol on communications to the CRC.

The Committee on Enforced Disappearances  595 this Convention’. In such a situation, it may ‘after consultation with the State Party concerned, request one or more of its members to undertake a visit and report back to it without delay’.62 The text does not state where exactly the visit should take place. A proposal to specify that the visit should take place only in the state’s territory was rejected and another proposal to state that it could take place into ‘any territory under the state’s jurisdiction’ was first adopted and then abandoned. But Rule 93(1) restates the territorial conditions, taken from Article 20 of the CAT. The Committee has to notify in writing its intention to make a visit, and the state must respond ‘within a reasonable time’. Consent to the visit is undoubtedly required as paragraph 4 stipulates: ‘If the State Party agrees to the visit . . .’63 Still, the language of Article 33 makes the refusal of a visit the exception rather than the rule. Paragraph 3 indicates that ‘ Upon a substantiated request by the State Party, the Committee may decide to postpone or cancel its visit’. This suggests that the state has to give reasonable grounds to refuse a visit. And certainly, it is for the Committee to evaluate the reasonableness of these grounds. At the same time, it is obvious that a visit on a state’s territory or on a territory under the jurisdiction of the state can practically never happen without the consent and authorization of that same state. But the text gives more weight to the Committee when negotiating the possibility of a visit with a state than Article 20 of the CAT does. It takes up the idea previously developed in the practice of the UN special procedures that the actual course of a visit should be negotiated carefully, so that all the guarantees of independence and seriousness of the inquiry are respected: ‘the Committee and the State Party concerned shall work together to define the modalities of the visit and the State Party shall provide the Committee with all the facilities needed for the successful completion of the visit’.64 The Rules of Procedure adds to this the interesting possibility for the Committee holding hearings.65 The outcome of the process is that the Committee communicates ‘to the State Party concerned its observations and recommendations’. The draft provision which stipulated that this procedure was entirely confidential was deleted in the final version. One can therefore consider that those ‘observations and recommendations’ can be published in the annual report of the Committee and thus made public, without the authorization of the state, as is the case in Article 20 of the CAT. Moreover, the CAT’s Article 20 procedure can be opted out by States parties pursuant to a simple declaration made in accordance with Article 28. The same goes with inquiries procedures under the optional protocols of the CRPD and of the CRC. This is not the case for Article 33 of the CED. At the time of writing these lines, the Committee has received several requests for opening an Article 33 inquiry, the most followed-​up being on Mexico, the CED having triggered the formal procedure for a visit at its 10th session.66 Still, no visit has been conducted yet. 62 Ibid, para 1. 63 See also Rule 93 para 2 and Rule 94 paras 1 and 2 of the Rules of Procedure. 64 See also Rules 94 and 96 of the Rules of Procedure. 65 See Rule 95 of the Rules of Procedure. 66 See third annual report of the Committee, A/​69/​56 (2014), paras 68–​72. See also fourth annual report, A/​70/​ 56 (2015), paras 48–​50 and 72–​4.

596  Olivier de Frouville

(b)  New mechanisms These original functions are urgent action and reporting in the case of ED amounting to a crime against humanity. i. Early warning and urgent action (Article 30) The experience of the UN Working Group on Enforced Disappearances has shown that urgent action is key to tackle enforced disappearances and save lives. This experience is shared by NGOs which have also developed early warning and urgent action procedures. This result is probably related to the fact that, very often, unfortunately, disappeared persons are summarily executed after a few days of secret detention. EDs are, in those cases, hidden murders. Urgent action can sometimes stop this process and make the person reappear, so that it recovers the ‘protection of the law’ that disappearance had made him or her lose. This point was very clearly understood by the Chair of the drafting working group and by some other governmental delegations, and thus the negotiation very rapidly focused on this issue. Reluctant states acted as if they did not understand clearly the difference between this urgent procedure and the individual complaint procedure. Their argument was to insist on the inclusion of admissibility conditions. By nature, an ‘urgent’ procedure has to be swiftly implemented, with the consequence that only very ‘light’ conditions of admissibility can be imposed. Article 30 ends up stating five conditions of admissibility.67 Amendments proposing to include a condition of exhaustion of domestic remedies were dismissed. Urgent actions can be initiated by a large number of persons, which is a condition of efficiency given the evident inability of the persons ‘disappeared’ to trigger such a mechanism themselves. Those persons who have a ‘legitimate’ interest are the same who have the right to introduce a habeas corpus before the national tribunals (Article 17 (2) f)), who can have access to some information on the person detained (Article 18 (1)) and/​ or who can introduce an habeas data before a tribunal in order to obtain that information when the authorities refuse to provide it (Article 20). When those conditions are met, the Committee ‘shall request the State Party concerned to provide it with information on the situation of the persons sought, within a time limit set by the Committee’. What happens if the state does not respect the time limit or does not respond at all? In all those kind of procedures, the bodies’ powers are double: blaming and reporting. If the state provides information, the Committee can take a wide range of measures. Paragraph 3 is particularly strongly-​worded if

67 Conditions are that the request a) is not manifestly unfounded; b) does not constitute an abuse of the right of submission of such requests; c) has already been duly presented to the competent bodies of the state party concerned, such as those authorized to undertake investigations, where such a possibility exists; d) is not incompatible with the provisions of this Convention; and e) the same matter is not being examined under another procedure of international investigation or settlement of the same nature.’ Compare with the WGEID’s revise methods of work, A/​HRC/​WGEID/​102/​2, 7 February 2014, § 14.

The Committee on Enforced Disappearances  597 we compare it with other similar procedures, in that the Committee ‘may transmit recommendations to the State Party, including a request that the State Party should take all the necessary measures, including interim measures, to locate and protect the person concerned in accordance with this Convention.’ The State party also has ‘to inform the Committee, within a specified period of time, of measures taken, taking into account the urgency of the situation’. In return, the Committee will inform the author of the communication. Paragraph 4 specifies that the Committee ‘shall continue its efforts to work with the State Party concerned for as long as the fate of the person sought remains unresolved. The person presenting the request shall be kept informed.’ There is thus a contradictory exchange of information until the case is ‘clarified’ and the Committee acts as a ‘channel of communication’ between the state and the authors, as the WGEID does under its own communication procedure. According to the ‘jurisprudence’ of the Working Group on Enforced Disappearances, a case is said to be ‘clarified’ when the whereabouts of the disappeared persons are clearly established . . . irrespective of whether the person is alive or dead’.68 Based on this criterion, states cannot pretend that cases have been ‘clarified’ on the sole basis of, for instance, compensation provided to the families, or a judicial declaration of death unilaterally issued by the authorities without the clear consent of the families.69 In its first year of functioning, the Committee sent five urgent actions concerning Mexico, but the number of requests quickly increased. As indicated in the annual report of the Committee in 2019,70 from 2012 to 18 April 2019, the Committee received 659 requests and sent requests concerning 570 of them, asking states to urgently locate and protect persons in fifteen States parties, namely Argentina, Armenia, Brazil, Cambodia, Colombia, Cuba, Honduras, Iraq, Kazakhstan, Lithuania, Mauritania, Mexico, Morocco, Sri Lanka and Togo. An immense majority of the cases however concern Mexico (356) and Iraq (162). In each case, the Committee has sent specific requests for the state to take a number of measures and asked the state to report back within ten to fifteen days. Among the total number of cases sent, the report indicates that ‘the Committee has closed a total of 51 urgent action cases: in 29 of these cases the disappeared persons had been located and released alive and in 22 cases the disappeared persons were found dead. In addition, the Committee has discontinued 13 requests for urgent action because the disappeared persons have been located but remain in detention’.71 Also ‘[i]‌n two urgent actions cases, it has been determined that the disappeared person has been found dead but the urgent action remains open because the persons who were granted interim measures are still under threat’.72

68 UN WGEID’s Revised Methods of Work, above n 61, para 26. 69 More on the WGEID’s Methods of Work, see O de Frouville, ‘Working out a Working Group: a view from a former Working Group member’ in A Nolan, T Murphy, R Freedman . . . (Brill, 2016 (to be published)). 70 Report of the Committee on Enforced Disappearances, fifteenth session (5–​16 November 2018), sixteenth session (8–​18 April 2019), A/​74/​56, 2019, para. 33 and sq. 71 Ibid, para 51–​52. 72 Ibid, para 53.

598  Olivier de Frouville ii. Action in case of crimes against humanity (Article 34) This is the other new feature of the Convention. The idea came from the Chair, Bernard Kessedjian, himself. At first, he made a proposal that in case of ED amounting to crimes against humanity—​according to the Convention’s definition in Article 5—​the Committee would have the competence to bring the matter before the UN Secretary-​ General, in order for him to take whatever measures he could adopt within the scope of his powers. Many states were reluctant: some because they opposed all measures of control; others because they doubted that such a procedure was ‘constitutional’ in the UN Charter’s framework. However, it was pointed out that this sort of arrangement was not entirely new. For example, Article VIII of the Convention on the Prevention and Punishment of the Crime of Genocide and Article VIII of the International Convention on the Suppression and Punishment of the Crime of Apartheid already make it possible to bring matters before some of the UN’s political bodies. Finally, a compromise was reached that the Committee would ‘bring the matter to the attention of the General Assembly of the United Nations, through the Secretary-​General of the United Nations’. Before, the Committee should try to seek from the state party ‘all relevant information’.73 What will the General Assembly do once it has been seized by the Committee? Bringing the matter to the Secretary-​General was an implicit reference to article 99 of the Charter, which allows him or her to refer a situation to the Security Council. And according to Article 16 of the Rome Statute, the Security Council himself has the power to refer a situation to the International Criminal Court . . . The final version of the text rather relies on the General Assembly which, according to Articles 10 and 11 of the UN Charter may either formulate recommendations directly to the state(s) concerned or decide to refer the situation to the Security Council. At the day of writing these lines, the Committee has not considered using article 34.

16.4  Conclusion In sum, the CED is certainly a ‘new generation’ committee. As the heir to older committees, it benefits from their past experience and various attempts to enlarge their mandates and powers (interim measures is a striking example). But as a new committee, it also appears innovative, and indeed some of its features have been taken up in subsequent instruments adopted, that is, mainly the optional protocols to the CRPD, CRC, ICESCR, and CEDAW. Although many states doubted that there was any justification for creating a new committee only dedicated to the issue of enforced disappearances, the first years of the Committee have proved them wrong. This is due to the mobilization of civil society and families of the disappeared, particularly in some key States parties like Mexico, who understood well not only the



73

See E/​CN.4/​2006/​57, paras  60–​3.

The Committee on Enforced Disappearances  599 complementarity between the Committee and other competent mechanisms, like the WGEID, the HRC as well as interamerican mechanisms, but also its added value. This is also greatly due to the dedication and dynamism of the members of the Committee, led by their first chair, Professor Decaux, who all worked tirelessly to ensure that, within a few years, the Committee would be ready to act effectively in order to eliminate enforced disappearances and assist victims in their legitimate quest for truth, justice, and reparation.

17 The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families Vincent Chetail

17.1  Introduction Despite the panic stoked by politicians and mass media, the total number of inter­ national migrants represents a very small portion of the world population (that is 3.3  per  cent).1 Most of them are workers:  migrant workers account for 150  million of the world’s 244  million international migrants.2 As regularly reported by non-​governmental organizations, they are also the most vulnerable to abuse and exploitation.3 Because of such vulnerability, the United Nations (UN) has adopted the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW), with the view of ‘reaffirming and establishing basic norms in a comprehensive convention which could be applied universally’.4 Although part of the now ‘famous nine’, the ICRMW presents four main specificities compared to the other core UN human rights treaties. First, the ICRMW results from one of the longest drafting histories.5 The sensitive issue of migrant workers was discussed within various organs of the UN for eight years before the drafting of a Convention even began, which itself required ten more years to be finalized and eventually adopted on 18 December 1990. The origin of this long process may be traced 1 International Migration Report 2015, UN, ST/​ESA/​SER.A/​375, 2016, p 21. 2 ILO Global Estimates on Migrant Workers. Results and Methodology, ILO, 2015, p xi. 3 See among others:  Amnesty International, The Human Cost of Fortress Europe Human Rights Violations against Migrants and Refugees at Europe’s Borders, 2014; Human Rights Watch, Abused and Expelled. Ill-​Treatment of Sub-​Saharan African Migrants in Morocco, 2014; Amnesty International, ‘My Sleep Is My Break’. Exploitation of Migrant Domestic Workers in Qatar, 2014 PICUM, PICUM’s Main Concerns about the Fundamental Rights of Undocumented Migrants in Europe, 2010. 4 Ninth and fifteenth preambular paragraphs of the ICRMW, 2220 UNTS 3, 18 December 1990. For a recent comment of this convention, see: V Chetail, International Migration Law (Oxford University Press, 2019), 219–​50. 5 Only the negotiation of the two UN Covenants has been longer than the one of the ICRMW. On the drafting history of the ICRMW see: G Battistella, ‘Migration and Human Rights: the Uneasy but Essential Relationship’, in Cholewinski, de Guchteneire, and Pécoud (eds) Migrant and Human Rights: The United Nations Convention on Migrant Workers’ Rights (Paris/​Cambridge: UNESCO/​Cambridge University Press, 2009), 50–​8; J Lönnroth, ‘The International Convention on the Rights of All Migrant Workers and Members of Their Families in the Context of International Migration Policies: An Analysis of Ten Years of Negotiation’ (1991) 25(4) International Migration Review 710–​36; S Hune, ‘Drafting an International Convention on the Protection of the Rights of All Migrant Workers and Their Families’ (1985) 19(3) International Migration Review 570–​615.

602  Vincent Chetail back to 1972 and the adoption of an ECOSOC resolution requesting the Commission on Human Rights to investigate the matter.6 Several resolutions and reports later,7 the General Assembly decided in 1979 to create an open-​ended Working Group for drafting an international convention on the rights of migrant workers and their families.8 Set up in 1980, the Working Group negotiated the text of the treaty until 1990 before submitting it for adoption by the General Assembly. This long negotiation is mainly due to the anxiety of states towards migrant workers and the competing interests at stake between countries of destination and origin. Second, and perhaps because of this lengthy negotiation process, the ICRMW is the longest UN core human rights instrument with ninety-​three articles divided into nine parts.9 Parts I and II determine the scope of the Convention and its key concepts (including the definition of migrant workers and the principle of non-​discrimination). The main body of rights is spelled out in Parts III and IV. The former enumerates a comprehensive set of civil, political, economic, social, and cultural rights applicable to all migrant workers and their families (including undocumented ones), while the latter grants additional rights to those who are in a regular situation. Part V further details the rights of specific categories of migrant workers (such as seasonal workers). Part VI then identifies the obligations of states parties in combating irregular migration and promoting sound, equitable and lawful conditions of migration. Finally, Parts VII to IX deal with the application of the Convention (including states’ reservations and the supervisory mechanism). The Convention’s considerable length arguably ‘mirrors the complexity of the phenomenon it seeks to regulate’.10 But it also reflects the political sensitivity of this issue and the need to find a balance between the rights of migrant workers and the traditional competence of states for regulating the entry and sojourn of non-​nationals. Interestingly, however, in most instances the ICRMW does not create new rights for migrant workers, but restates and sometimes specifies the applicability of rights already enshrined in more general human rights instruments.11 Third, although such a codification of existing rights would have been a powerful incentive for states’ ratification, the Convention has necessitated the longest period for its entry into force. It took almost thirteen years to gather the twenty ratifications 6 ECOSOC Resolution 1706 (LIII), 28 July 1972. 7 See most notably:  General Assembly (GA) Res 3224 (XXIX) (6 November 1974); Exploitation of Labor through Illicit and Clandestine Trafficking (Draft Recommendations submitted by Mrs. Halim Embarek Warzazi, Rapporteur), E/​CN.4.Sub.2/​L.636 (9 September 1975); GA Res 3449 (XXX) (9 December 1975); GA Res 31/​127 (16 December 1976); GA Res 32/​120 (16 December 1977); Report of the World Conference to Combat Racism and Racial Discrimination, Geneva, 14–​25 August 1978, A/​CONF.92/​40, para 13(x); GA Res 33/​163 (20 December 1978). 8 GA Res 34/​172 (17 December 1979). 9 By contrast, the longest instrument among the other core ones is Convention on the Rights of the Child with fifty-​four articles. 10 E MacDonald and R Cholewinski, The Migrant Workers Convention in Europe, Obstacles to the Ratification of the International Convention on the Protection of the Rights of All Migrants and Members of their Families: EU/​EEA Perspectives, UNESCO Migration Studies 1, 2007, 27. 11 For a similar account, see for instance:  M D’Auchamp, Migrant Workers’ Rights in Europe, UN High Commissioner for Human Rights, Regional Office for Europe, 2011, 11; D Weissbrodt and S Meili, ‘Human Rights and Protection of Non-​Citizens: Whither Universality and Indivisibility of Rights?’, Refugee Survey Quarterly 28(4) 2010: 43; AT Gallagher, The International Law of Human Trafficking (Cambridge, Cambridge University Press, 2010) 169; VA Leary, ‘Labour Migration’, in T A Aleinikoff and V Chetail (eds), Migration and International Legal Norms (The Hague, TMC Asser Press, 2003) 235.

The Committee on the Protection of Migrant Workers  603 required by Article 87(1) of the Convention: though adopted in December 1990, the ICRMW only entered into force in July 2003. Fourth, this slow pace of ratification has continued even after the entry into force of the Convention. The ICRMW indeed remains poorly ratified compared to the other core human rights treaties. As of October 2019, the Convention counts only fifty-​five states parties, with ratification by Western countries still lacking.12 These four peculiarities of the Convention have undoubtedly not eased the work of its supervisory body, established 1 January 2004. The Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (MWC) appears as the poor cousin of the UN treaty bodies.13 Together with the critiques addressed at it even before its entry into function, the atmosphere has been rather inhospitable for this monitoring body. At the time of the adoption of the ICRMW, commentators regretted that its competence is subordinated to states’ acceptance and has limited functions,14 while some have asserted that ‘the direct enforcement mechanism is weak and inadequate’.15 12 For the ratification status, see: http://​treaties.un.org/​pages/​ViewDetails.aspx?src=TREATY&mtdsg_​no=IV-​ 13&chapter=4&lang=en. This number is still far from attaining the 196 states having ratified the Convention on the Rights of the Child which was nonetheless adopted only one year before the ICRMW. Obstacles to the ratification of the ICRMW have produced a substantial literature. Besides our remarks in the conclusion of this chapter and the studies quoted in footnotes 10 and 13, see also for further discussions: B Lyon, ‘The Unsigned United Nations Migrant Worker Rights Convention: An Overlooked Opportunity to Change the ‘Brown Collar’ Migration Paradigm’ (2010) 42(2) New York University Journal of International Law and Politics 389–​500; D Vanheule, M-​C. Foblets, S Loones, and S Bouckaert, ‘The Significance of the UN Migrant Workers’ Convention of 18 December 1990 in the Event of Ratification by Belgium’ (2004) 6(4) European Journal of Migration and Law 285–​322; P Taran, ‘Status and Prospects for the UN Convention on Migrants’ Rights’ (2000) 2(1) European Journal of Migration and Law 85–​100; S Hune and J Niessen, ‘Ratifying the UN Migrant Workers Convention: Current Difficulties and Prospects’ (1994) 12(4) Netherlands Quarterly of Human Rights 393–​404. 13 The literature devoted to the MWC is extremely poor. Only one article has been specifically published on this treaty body by its former secretary: C. Edelenbos, ‘Committee on Migrant Workers and Implementation of the ICRMW’ in P De Guchteneire, A Pécoud, and R Cholewinski (eds), Migrant and Human Rights: The United Nations Convention on Migrant Workers’ Rights (Paris/​Cambridge: UNESCO/​Cambridge University Press, 2009) 100–​21. More general studies on the international protection of migrant workers contain some developments on the MWC. See in particular: B Ryan, ‘In Defence of the Migrant Workers Convention: Standard Setting for Contemporary Migration’ in S Juss (ed), The Ashgate Research Companion to Migration Law, Theory and Policy (Ashgate, 2013) 491–​515, esp at 504–​13; V P Nanda, ‘Domestic and International Legal Responses to Emerging Migration Issues:  International Migration:  Trends, Challenges, and the Need for Cooperation within an International Human Rights Framework’ (2011) 17(2) ILSA Journal of International and Comparative Law 355–​ 78, esp at 365–​9; MAR Diakité, ‘A Brief Look at the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families’ in G. Alfredsson et al (eds), International Human Rights Monitoring Mechanisms: Essays in Honour of Jakob Th. Möller (Leiden: Martinus Nijhoff, 2009) 117–​31, esp at 124–​5 and 127–​9; B Lyon, ‘New International Human Rights Standards on Unauthorised Immigrant Worker Rights: Seizing an Opportunity to Pull Governments Out of the Shadows’ in A F Bayefsky (ed), Human Rights and Refugees, Internally Displaced Persons, and Migrant Workers: Essays in Memory of Joan Fitzpatrick and Arthur Helton (Leiden: Martinus Nijhoff, 2006) 551–​82, esp at 572–​3; R Cholewinski, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment (Oxford: Clarendon Press, 1997) 193–​9; S Hune and J Niessen, ‘The First UN Convention on Migrant Workers’ (1991) 9(2) Netherlands Quarterly of Human Rights 130–​41, esp at 137–​8. 14 A Boudahrain, ‘The New International Convention:  A Moroccan Perspective’ (1991) 25(4) International Migration Review 866, at 871–​2. 15 V P Nanda, ‘The Protection of the Rights of Migrant Workers: Unfinished Business’ (1993) 2(2) Asian and Pacific Migration Journal 161, at 174. See also: T Ansay, ‘The New UN Convention in Light of the German and Turkish Experience’ 1991 25(4) International Migration Review 831, at 844; R Böhning, ‘The Protection of Migrant Workers and International Labour Standards’ (1988) 26(2) International Migration 133, at 143; M Hasenau, ‘Setting Norms in the United Nations System: the Draft Convention on the Protection of the Rights of All Migrant Workers and Their Families in Relation to ILO in Standards on Migrant Workers’ (1990) 28(2) International Migration Review 133, at 152–​4.

604  Vincent Chetail These criticisms were nothing new and were reminiscent of the heightened debates which pervaded the drafting history of the Convention. The Committee came close to never existing because of competing positions on which entity should be designated for the supervision of the Convention. On the one hand, some—​mostly Western—​countries favoured the International Labour Organization (ILO) to assume this supervisory function, or at least be entitled to appoint a number of experts in the Committee.16 According to them, ILO competence on migrant workers coupled with the efficient supervisory capacity of its Governing Body called for the participation of the ILO in monitoring the Convention.17 This involvement would in addition avoid any discrepancy in the application of the ICRMW with overlapping ILO conventions. On the other hand, states from the Global South aimed at the creation of a specific monitoring body in line with those existing under the other core UN instruments.18 The human rights orientation of the ICRMW was, in their opinion, beyond ILO competence, while UN conventions had in any case always been supervised by UN organs.19 A compromise between these two positions was ultimately found: a specific treaty body has to be created while the ILO retains a consultative role vis-​à-​vis this supervisory mechanism. From the adoption of the ICRMW in 1990 until the entry in function of its supervisory body in 2004, the international agenda of labour migrations has considerably evolved. In parallel to the growing number of actors involved in this field, a plethora of multilateral initiatives have been launched at both the global and regional level.20 This impetus has however witnessed a shift in the international protection of migrant workers: while states are becoming more aware of the need for international cooperation, the management-​based approach to migration increasingly competes with the 16 See, for instance, the position of the United States which, already in November 1980, clearly favoured the ILO as the monitoring body of the Convention given its ‘lengthy experience’ and its monitoring ‘machinery . . . through a detailed reporting system and well-​established system of direct contacts with Member States’: Working Paper presented by the United States of America, A/​C.3/​35/​WG.1/​CRP.6 (19 November 1980), para 11(d), Annex VI to the Report of the Open-​Ended Working Group, A/​C.3/​35/​13 (25 November 1980). See also Report of the Open-​ Ended Working Group on the Elaboration of an International Convention on the Protection of the Rights of All Migrant Workers and Their Families, A/​C.3/​43/​7 (17 October 1988), para 174, p 37. 17 Report of the Open-​Ended Working Group on the Elaboration of an International Convention on the Protection of the Rights of All Migrant Workers and Their Families, A/​C.3/​39/​1 (14 June 1984), para 48. 18 See most notably Report of the Open-​Ended Working Group on the Elaboration of an International Convention on the Protection of the Rights of All Migrant Workers and Their Families, A/​C.3/​40/​1 (20 June 1985), Algeria (para 46), Mexico (para 49), and Tunisia (para 53). See also the remarks of the representative of USSR: ‘He also voiced his concern over an unjustifiably extensive emphasis placed on the International Labour Organisation. The Working Group should not forget that it was elaborating a United Nations Convention of a universal character and not an ILO convention, where professional one-​sidedness usually existed and specific requirements and order were followed’. Ibid, para 51. 19 Report of the Open-​Ended Working Group (14 June 1984), para 50. Concerning more specifically the possibility for ILO to appoint some Committee’s experts, this was considered as an unjustified privileged capacity compared to states parties; even the more so given ILO practice of nominating experts from countries that are not states parties to the concerned conventions: Report of the Open-​Ended Working Group (14 June 1984), paras 50 and 56. 20 Besides the numerous regional initiatives, see most notably: The Declaration of The Hague on the Future of Refugee and Migration Policy, A/​57/​693 (22 November 2002); International Agenda for Migration Management, International Organisation for Migration & Swiss Federal Office for Migration, 2004; ILO, Multilateral Framework on Labour Migration: Non-​Binding Principles and Guidelines for a Rights-​Based Approach to Labour Migration, Doc. TMMFLM/​2005/​1(Rev.) (2005) and the two General Assembly High Level Dialogues on International Migration and Development organized in 2006 and 2013.

The Committee on the Protection of Migrant Workers  605 human rights based approach promoted by the ICRMW.21 In the midst of such a challenging context, the present chapter aims to analyse the specific role and position of the MWC. In so doing, the membership and functioning of the Committee (I.) as well as its monitoring functions (II.) will be examined and compared against those of other existing supervisory mechanisms. Further emphasis will be placed on the cooperation of the Committee with the great number of stakeholders (III.), such as the ILO and UN treaty bodies, but also other concerned international and non-​governmental organizations.

17.2  Membership and functioning of the Migrant Workers Committee Membership and working methods of the MWC are—​save for rare exceptions—​in line with those of the other UN treaty bodies. This is not surprising since, once the drafters had opted for the establishment of a treaty body, the Human Rights Committee (HRC) and the Committee against torture (CAT) were a constant source of inspiration for elaborating this supervisory mechanism.22

(a) Membership The MWC consists of fourteen experts of ‘high moral standing, impartiality and recognised competence in the field covered by the present Convention’.23 The size of the Committee raised some debates during the drafting of the Convention.24 On the one hand, several states (including Australia, Canada, Colombia, the United States (US), and the USSR) were in favour of a small committee of ten to twelve members for financial reasons and for more effective supervision of the Convention. On the other hand, other delegations—​such as Morocco and India—​supported a broader membership of eighteen members in order to better ensure geographical representation. As 21 Among a copious literature, see: B Ghosh (ed), Managing Migration. Time for a New International Regime? (Oxford: Oxford University Press, 2000); G S Goodwin-​Gill, ‘Migrant Rights and “Managed Migration” ’ in V Chetail (ed), Globalisation, Migration and Human Rights: International Law under Review (Brussels: Bruylant, 2007) 161–​87; B Badie et al, Pour un autre regard sur les migrations. Construire une gouvernance mondiale (Paris: La Découverte, 2008); V Chetail, ‘Paradigm and Paradox of the Migration-​Development Nexus: The New Border for North-​South Dialogue’ (2008) 51 German Yearbook of International Law 183–​215; R Kunz, S Lavenex, and M Panizzon (eds), Migration Partnerships: Unveiling the Promise (London: Routledge, 2010); M M Geiger and A Pécoud (eds), The Politics of International Migration Management (New York: Palgrave Macmillan, 2010); R Cholewinski, ‘Labour Migration Management and the Rights of Migrant Workers’ in A Edwards and C Ferstman (eds), Human Security and Non-​Citizens: Law, Policy and International Affairs (Cambridge: Cambridge University Press, 2010) 273–​313; A Betts (ed), Global Migration Governance (Oxford: Oxford University Press, 2011); as well as the special issues of Refugee Survey Quarterly, Vol 29, 2010: Governance beyond Boundaries and of Global Governance, Vol 16, 2010: International Migration; Chetail, International Migration Law, 300–​54. 22 Among many instances which will be detailed, infra, see: Report of the Open-​Ended Working Group (17 October 1988), 38, para 181. 23 Article 72(2)(a) ICRMW. 24 Report of the Open-​Ended Working Group (17 October 1988), paras 172–​205, pp 36–​43.

606  Vincent Chetail a compromise between the two approaches, it was finally agreed that the Committee shall consist of ten experts at the time of entry into force of the Convention, with an additional four after its entry into force for the forty-​first state party. With its total of fourteen experts, the current size of the MWC is accordingly smaller than the vast majority of UN treaty bodies which are composed of eighteen members.25 Similarly to all other UN counterparts, members of the MWC serve for a term of four years.26 The current composition of the MWC broadly corresponds to the ­geographical spread of ratifications. It includes experts from five African states (Algeria, Egypt, Morocco, Mali and Senegal), four American states (Argentina, Ecuador, Peru and Honduras), three Asian states (Bangladesh, the Philippines and Sri Lanka) and two European states (Bosnia and Herzegovina and Turkey). However, the ­composition of the Committee raises two concerns also frequently addressed for the other UN treaty bodies. First, women are poorly represented in the Committee:  out of the fourteen members, only five are female. This underrepresentation is at odds with the feminization of l­ abour migration, as women comprise almost half of the migrant worker population27 and constitute a group particularly vulnerable to human rights abuses.28 Such concern is further exacerbated by the ICRMW’s lack of gender specificity. Although the Convention clearly includes women both as migrant workers and members of their family, the ICRMW has been frequently criticized for failing to give specific ­attention to them.29 Second, states have the usual tendency to nominate individuals who held governmental positions, as reflected in the professional background of the great majority of Committee members. This may politicize the work of the MWC in a field already sensitive and political by nature and raise conflicts of interests. Holding a government position is however not incompatible with professionalism. This can even be the contrary as in the case of this Committee, since most of the former government officials worked in departments of labour and/​or migration and accordingly benefit from expertise in the fields covered by the Convention.

25 HRC; Committee on Economic, Social and Cultural Rights (CESCR); Committee on the Elimination of Racial Discrimination (CERD); Committee on the Rights of the Child; Committee on the Rights of Persons with Disabilities. By contrast, the Committee on the Elimination of Discrimination against Women consists of twenty-​ three experts, while the CAT and the Committee on Enforced Disappearances are composed of only ten members. 26 Article 72(5)(a) ICRMW. 27 According to the UN, in 2015 women represented 48 per cent of the total population of migrants: International Migration Report 2015, p 10. 28 On the vulnerability of women migrants, see notably, the Special Rapporteur on violence against women, its causes and consequences: Trafficking in Women, Women’s Migration and Violence Against Women, E/​CN.4/​2000/​ 68 (29 February 2000); Continuum of Violence Against Women from the Home to the Transnational Sphere: the Challenges of Effective Redress, A/​66/​215 (1 August 2011), paras 29, 33, 35, 43, 46, and 76; Multiple and Intersecting Forms of Discrimination and Violence Against Women, A/​HRC/​17/​26 (2 May 2011), paras 47 and 104. 29 See in particular: M L Satterthwaite, ‘Crossing Borders, Claiming Rights: Using Human Rights Law to Empower Women Migrant Workers’ (2005) 8 Yale Human Rights and Development Law Journal 1–​66; R  Cholewinski, Migrant Workers, pp 184–​6; V P Nanda, ‘The Protection of the Rights of Migrant Workers: Unfinished Business’, 172–​3; S Hune, ‘Migrant Women in the Context of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families’ (1991) 25(4) International Migration Review 800–​17. For further discussions see also Part II of this chapter.

The Committee on the Protection of Migrant Workers  607 As a way to mitigate the risk of partiality, the ICRMW recalls in line with the other UN core instruments that members ‘shall serve in their personal capacity’.30 Echoing the prevailing practice among the other treaty bodies, the Rules of Procedure of the MWC further specify that ‘No member of the Committee shall participate in the examination of state party reports or the discussion and adoption of concluding observations if they involve the state party in respect of which she or he was elected to the Committee’.31

(b)  Election process The election process largely mirrors the procedure usually followed for the other UN treaty bodies. Under Article 72 paragraph 2 a) of the ICRMW, members of the Committee are elected by secret ballot by the states parties from a list of persons nominated by them. The first election was held on December 2003 and subsequent elections took place every two years. In accordance with the procedure detailed in Article 72 paragraph 3, at least four months before the date of each election, the UN Secretary-​General addresses a letter to states parties inviting them to submit their nominations within two months. The Secretary-​General then prepares a list of persons thus nominated and submits it to states parties not later than one month before election. The election is held at a meeting of states parties convened by the Secretary-​General at the UN Headquarters. At that meeting, for which two-​thirds of the states parties constitute a quorum, the persons elected as members of the MWC are those nominees who obtain the largest number of votes and an absolute majority of the votes of the present and voting states parties. Members of the Committee are eligible for re-​election if re-​nominated by the relevant state parties.32 In any event, voting state parties must give due consideration ‘to equitable geographical distribution, including both states of origin and states of employment, and to the representation of the principal legal systems’.33 Compared to the conditions and procedures prevailing for the other treaty bodies, election of members of the MWC presents one main specificity. The traditional criterion of equitable geographical distribution is refined by an explicit qualification referring to ‘both states of origin and states of employment’. This specification inserted on the proposal of India was intended to ensure a balanced and representative membership which would duly take into account the presumed conflicting interests between states of origin and employment.34 The relevance of such qualification is however debatable, for the same states increasingly qualify as both states of employment and origin. Already during the drafting of the ICRMW, some 30 Article 72(2)(b) ICRMW. 31 Provisional Rules of Procedure, Rule 32, HRI/​GEN/​3/​Rev.1/​add.1 (7 May 2004). 32 Article 72(5)(c) ICRMW. 33 Article 72(2)(a) ICRMW. 34 Report of the Open-​Ended Working Group (14 June. 1984), para 65, p 19 (India). The drafting history reveals another reason raised by France and Germany ‘so as to avoid the supervisory machinery of the Convention being controlled by experts nominated by states which did not have migrant workers’: Ibid, para 16, p 5.

608  Vincent Chetail delegations had expressed their scepticism about ‘the inclusion of those terms [which] added little and in fact [were] potentially confusing’, since ‘it [was] difficult to determine under which category a country would fall’.35 As far as the current composition of state parties, most of them do indeed fall under both categories. Of the thirty-​three countries examined in the reporting procedure between May 2006 and December 2015, the Migrant Worker Committee has explicitly acknowledged only four of them as ‘mainly a country of origin’,36 whereas most of the others were considered as both countries of destination and of origin.37 For most of the latter, the Committee has further observed that they are also transit countries—​a prominent contemporary migration pattern not expressly acknowledged in the Convention.

(c)  Functioning and working methods The MWC carried out a substantial amount of work in its first years. It held its first session in March 2004 and has held two sessions per year since then. Its work has broadly evolved around two different phases: Establishment phase (March 2004–​April 2008): This first phase primarily focused on the drafting and adoption of the guiding documents governing its working methods. The Committee adopted its Provisional Rules of Procedure in March 2004,38 the Provisional Guidelines regarding the form and contents of initial reports to be submitted by states parties under article 73 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families in April 200539 and 35 Report of the Open-​Ended Working Group (17 October 1988), para 223, p 45 (Canada). See also: ibid, paras 208 and 222 (Netherlands); Report of the Open-​ended Working Group (14 June 1984), para 67, p 19 (Finland). Another practical concern was raised by the Chairman who ‘questioned the desirability of allowing states to have a changing status as state of origin or state of employment because such a situation would allow some experts to become permanent members of the Committee by representing the same state under different umbrellas’: Report of the Open-​Ended Working Group (17 October 1988), para 209, p 44. 36 This concerns Paraguay, the Philippines, Sri Lanka and the Syrian Arab Republic. See the following concluding observations: Paraguay, CMW/​C/​PRY/​CO/​1 (16 May 2012), para 3, p 1; The Philippines, CMW/​C/​PHL/​CO/​1 (22 May 2009), para 3, p 1; Sri Lanka, CMW/​C/​LKA/​CO/​1 (19 October 2009), para 3, p 2; Syrian Arab Republic, CMW/​C/​SYR/​CO/​1 (2 May 2008), para 3, p 1. 37 This concerns Albania, Algeria, Azerbaijan, Bolivia, Bosnia and Herzegovina, Cap Verde, Colombia, Ecuador, Egypt, El Salvador, Guatemala, Mexico, Peru, and Senegal. See the following concluding observations: Albania, CMW/​C/​ALB/​CO/​1 (22 February 2010), para 3, p 1; Algeria, CMW/​C/​DZA/​CO/​1 (19 May 2010), para 3, p 1; Azerbaijan, CMW/​C/​AZE/​CO/​1 (19 May 2009), para 3, p 1; Bolivia, CMW/​C/​BOL/​CO/​1 (29 April 2008), para 3, p 1; Bosnia and Herzegovina, CMW/​C/​BIH/​CO/​1 (3 June 2009), para 3, p 1; Cap Verde, CMW/​C/​CPV/​CO/​ 1 (8 October. 2015), para 5, p 2; Colombia, CMW/​C/​COL/​CO/​1 (22 May 2009), para 3, p 1; Ecuador, CMW/​C/​ ECU/​CO/​1 (5 December 2007), para 3, p 1; Egypt, CMW/​C/​EGY/​CO/​1 (25 May 2007), para 3, p 1; El Salvador, CMW/​C/​SLV/​CO/​1 (4 February 2009), para 3, p 1; Guatemala, CMW/​C/​GTM/​CO/​1 (12 October 2011), para 3, p 1; Mexico, CMW/​C/​MEX/​CO/​1 (20 December 2006), para 3, p 2; Peru, CMW/​C/​PER/​CO/​1 (13 May 2015), para 4, p 1; Senegal, CMW/​C/​SEN/​CO/​1 (10 December 2010), para 3, p 1. For Argentina, Belise, Burkina Faso, Chile, Ghana, Guinea, Kyrgyzstan, Mali, Morocco, Rwanda, Seychelles, Tajikistan, Timor-​Leste, and Uganda, the Committee did not specify whether they are countries of origin and/​or countries of destination. For Argentina at least, it is notorious that it is both of them. 38 Compilation of Rules of Procedure Adopted by Human Rights Treaty Bodies, Addendum, HRI/​GEN/​3/​Rev.1/​ Add.1 (7 May 2004). It was amended in October 2004 in order to introduce a provision on summary records of the Committee’s proceedings: 2nd Session, A/​60/​48(SUPP) (2 August 2005), p 21. 39 Compilation of Guidelines on the Form and Content of Reports to be Submitted by States Parties to the International Human Rights Treaties, Addendum, HRI/​GEN/​2/​Rev.2/​Add.1 (6 May 2005).

The Committee on the Protection of Migrant Workers  609 the Guidelines for the Periodic Reports to be Submitted by states Parties under Article 73 of the Convention in April 2008.40 Following the practice of other treaty bodies, the MWC has also established in December 2005 a Day of General Discussion gathering various stakeholder representatives (including states, UN agencies, intergovernmental organisations and civil society). Following the Day of General Discussion, it adopted in April 2006 a contribution to the High-​level Dialogue on Migration and Development of the General Assembly.41 Consolidation phase (April 2008—​present): During this period, the Committee has mainly concentrated its work on the examination of states’ reports concerning the implementation of the Convention. While the first report was examined in April 2006, this task has occupied most of its time from 2008 onwards with the regular—​albeit delayed—​submission of an increasing number of states’ reports. In parallel to their routine examination, the MWC has actively participated in the Global Forum on Migration and Development since 2008 and has organised several Days of General Discussion on a specific theme.42 Despite this rather busy work-​ schedule, the Committee also embarked on the drafting of general comments, including adopted General Comment No. 1 on migrant domestic workers in 201143 and General comment No. 2 on the rights of migrant workers in an irregular situation and members of their families in 2013.44

Like other treaty bodies, the functioning and activities of the Committee are unfortunately undermined by recurrent budgetary constraints. However, contrary to some of its counterparts,45 the expenses of its members are not financed by states parties themselves. This issue raised lengthy discussions during the drafting of the Convention: the strong preference of the US and Germany was for a system of funding by states parties,46 whereas the vast majority of delegations were in favour of funding by the United Nations in order to ensure ‘the impartiality of the experts and the effective functioning of the Committee’.47 Quite surprisingly, this issue was the only one provision among 40 Guidelines for the Periodic Reports to be Submitted by States Parties under Article 73 of the Convention, CMW/​ C/​2008/​1 (22 May 2008). 41 Contribution by the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families to the High-​level Dialogue on Migration and Development of the General Assembly, A/​61/​120 (3 July 2006). 42 They were devoted to migrant domestic workers (2009), undocumented migrant workers (2011), migration statistics (2013), workplace exploitation (2014), and the twenty-​fifth anniversary of the ICRMW (2015): http://​ www.ohchr.org/​EN/​HRBodies/​CMW/​Pages/​DiscussionDays.aspx. 43 CMW/​C/​GC/​1 (23 February  2011). 44 CMW/​C/​GC/​2 (28 August  2013). 45 See in particular Article 42(9) International Covenant on Civil and Political Rights (ICCPR) for the HRC; Article 17(7) Convention against Torture for the CAT; Article 12(6) International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) for the CERD. 46 See in particular the strong and insistent position of the US delegation: Report of the Open-​Ended Working Group (17 October 1988), para 174, p 37 (US); ibid, p 50, para 253 (US); ibid, p 52, para 267 (US). 47 Report of the Open-​Ended Working Group (17 October 1988), para 177, p 38 (Egypt). See ibid, p 37, para 175 (USSR); p 38, para 178 (Spain); para 188, p 39 (Cap Verde); p 50, para 259 (China); p 50, para 261 (Morocco); p 51, para 263 (Sweden); p 51, para 264 (Netherlands); p 52, para 268 (Denmark); p 52, para 269 (Greece). See also, Report of the Open-​Ended Working Group on the Drafting of an International Convention on the Protection of the Rights of All Migrant Workers and Their Families, A/​C.3/​45/​1 (21 June 1990), p 12, para 44 (Netherlands); and p 12, para 45 (Australia, which changed its former position, Mexico, China, India, Norway, Algeria and France). Several delegations also argued with Finland that ‘Experience of supervisory machineries financed by States parties was not encouraging. Furthermore, State Party financing might become a deterrent to ratification’. Report

610  Vincent Chetail the ninety-​three Articles of the Draft Convention for which it was impossible to find a consensus. The Working Group thus decided to submit two alternative texts to be chosen by the General Assembly.48 The latter finally decided for UN funding.49 At this time, the same solution was also retained for the Committee on the Elimination of Discrimination against Women (CEDAW)50 and the Committee on the Rights of the Child (CRC).51 Since the adoption of the ICRMW, it has become a standard provision in subsequent UN treaties.52 Beside the need to guarantee the independence of treaty bodies from states parties, UN funding is consistent with the fact that they report each year to the General Assembly.53 Working methods of the Committee are similar to those of the other UN supervisory bodies. Under its Provisional Rules of Procedure, the meetings of the MWC are to be held in public, unless it decides otherwise.54 According to the practice generally followed, sessions are private when the Committee hears additional information before drafting the list of issues and when it deliberates on lists of issues and recommendations on states’ reports. Eight members of the MWC constitute a quorum for the adoption of formal decisions.55 The Committee usually reaches its decisions by consensus. If consensus cannot be reached, decisions are put to a vote.56 Each member has one vote and any proposal or motion put to a vote is adopted by the simple majority.57

17.3  Functions of the Migrant Workers Committee Similar to its membership and working methods, the functions of the MWC are in line with those of the other UN treaty bodies. Its supervisory functions are threefold: the examination of states’ reports on the application of the Convention; complaints from states and individuals; and the drafting of general comments for the purpose of interpreting the Convention. Each of these functions has, however, been unequally of the Open-​Ended Working Group (17 October 1988), p 35, para 167. See also ibid, p 51, para 265 (Algeria); Report of the Open-​Ended Working Group (21 June 1990), p 12, para 43 (Yugoslavia and Morocco). Netherlands further explained in this sense that ‘to have direct funding by states parties would be unfair to poorer states as such a system would affect them more and would in effect amount to a penalty for their ratifying the Convention. This Convention contained many rights which were directly related to the Covenants on human rights and which thus affected the United Nations as a whole. Within the field of human rights one simply could not eat “à la carte”. . . [T]‌he Convention was based on a consensus and . . . it would not be appropriate to then allow States the option of not funding its costs because they did not wish to ratify it’: Report of the Open-​Ended Working Group (17 October 1988), para 264, p 51.

48 Report of the Open-​Ended Working Group (21 June 1990), pp 12–​13, para 48. 49 Article 72(7) and (8) ICRMW.

50 Article 17(8) Convention on the Elimination of All Forms of Discrimination against Women. 51 Article 43(12) Convention on the Rights of the Child.

52 See eg Article 34(12) Convention on the Rights of Persons with Disabilities (CRPD). 53 See, especially, Article 74(7) ICRMW.

54 Provisional Rules of Procedure, Rule 21. 55 Ibid, Rule 23.

56 Ibid, Rule 25(1). 57 Ibid, Rule 26.

The Committee on the Protection of Migrant Workers  611 developed. The first function clearly constitutes the centrepiece of its work, while the second one is not yet operative and the third function is growing.

(a)  Consideration of states’ reports The primary function of the Committee is the consideration of reports submitted by states parties on the measures they have taken to give effect to the Convention. states parties must report initially one year after the entry into force of the ICRMW and then every five years, as well as whenever the MWC so requests.58 The reporting duty did not raise major issues during the drafting of the Convention. Delegations were convinced by the need for such a reporting procedure for the twofold purpose of ensuring effective implementation of the Convention and creating ‘the basis for a dialogue between the state party and the Committee’.59 While the role devoted to the ILO attracted most of their attention, ‘all delegations agreed that there was indeed a need to allow for an appropriate monitoring system, which necessarily implied the functioning of an efficient organ that would take care of reporting on the degree and modalities of application’.60 Only one delegation expressed its concern with ‘avoid[ing] unnecessary and burdensome reporting procedures which only result in heaps of documents which nobody reads’.61 Notwithstanding this last and rather isolated observation, delegations agreed to follow the established practice of existing treaty bodies.62 As a result, both the content of the reports and the examination process largely correspond to those provided in the other core human rights instruments. i. Content of states’ reports Regarding the content of their reports, states are not only bound to describe legislative, judicial, administrative, and other measures they have taken to give effect to the provisions of the Convention; they must also indicate factors and difficulties affecting its implementation.63 In addition to the information generally requested by the other UN instruments, Article 73 paragraph 2 further requires some specific information on ‘the characteristics of migration flows in which the state Party concerned is involved’, including both emigration, transit and immigration flows. The general framework provided by the Convention has been detailed by the Committee in the Provisional Guidelines regarding the form and contents of initial reports adopted in April 2005 and the Guidelines for the Periodic Reports adopted in April 2008. According to these guidelines, the initial report is composed of two parts, respectively dealing with information of a general nature and in relation to each article of



58 Article 73(1) ICRMW.

59 Report of the Open-​Ended Working Group (20 June 1985), para 46, p 12 (Algeria). 60 Report of the Open-​Ended Working Group (14 June 1984), para 46, p 14.

61 Report of the Open-​Ended Working Group (17 October 1988), para 167, p 35 (Finland). 62 See notably: Ibid, paras 287–​90, pp 56–​7; paras 337–​41, p 64. 63 Article 73(1) and (2) ICRMW.

612  Vincent Chetail the Convention. The first part of the initial report gives details in five categories of general information: the domestic law framework governing the implementation of the ICRMW and any agreements concerning migration entered into with other states; quantitative and qualitative information on the characteristics and nature of the migration flows; the practical situation as regards the implementation of the ICRMW and the measures taken to disseminate and promote the rights contained in the Convention. The second part of the initial report provides specific information relating to the implementation of its provisions which are gathered into five clusters of articles: general principles (non-​discrimination, right to an effective remedy, duty to implement the Convention); human rights of all migrant workers and members of their families (Part III of the Convention); other rights of those who are in a regular situation (Part IV of the ICRMW); provisions applicable to particular categories of migrant workers (Part V); promotion of sound, equitable, humane and lawful conditions of migration (Part VI). As regards the periodic report, it consists of two parts: the common core document in accordance with the harmonized guidelines adopted by the Inter-​Committee for the purpose of facilitating a coherent approach by all committees64 and the treaty-​specific document. This last part is structured around the same subdivisions as the initial report. General information is nonetheless more detailed than for the initial report, with particular attention devoted to migrant children. Moreover, the specific information on the cluster of articles should additionally include clear reference to any progress made towards the enjoyment of Convention rights during the reporting period and indicate the concrete measures taken with regard to the concluding observations adopted by the Committee in relation to the previous report. ii. Examination of states’ reports Examination of states’ reports by the Committee closely follows the working methods of the other treaty bodies. Upon receiving a report, the MWC seeks additional information on the situation in the concerned state from inter-​governmental and non-​governmental organizations in accordance with Article 74 paragraph 4 of the Convention.65 It then identifies a list of issues to be sent to the government which is requested to reply before the plenary session. Consideration of the report takes place in two public meetings to which representatives of the state party are invited. The leading role of the review is ensured by two rapporteurs per report who are nominated among the fourteen members of the Committee. The whole process of such a review is not confrontational but rather aimed at establishing a constructive dialogue between the state and the Committee on the progress and obstacles encountered in implementing the ICRMW. At the end of the review, the Committee discusses the concluding observations on the state party’s report in a private meeting. Concluding observations are structured into 64 Harmonised Guidelines on Reporting under the International Human Rights Treaties, Including Guidelines on a Common Core Document and Treaty-​Specific Documents, Report of the Inter-​Committee Technical Working Group, HRI/​MC/​2006/​3 (10 May 2006). 65 For further discussions about the role of ILO and of NGOs, see Part III of this Chapter.

The Committee on the Protection of Migrant Workers  613 an ‘introduction’, one—​generally short—​section on the ‘positive aspects’ and another more detailed section devoted to the ‘principal subjects of concern, suggestions and recommendations’.66 Overall, the main subjects of concern raised by the Committee are related to undocumented migrant workers in relation to the principle of non-​ discrimination, the right to an effective remedy, the prohibition of arbitrary detention, procedural guarantees governing expulsion (including the right to lodge an appeal) and equal access to emergency medical care. The MWC also commonly stresses the need to fight trafficking in persons and to protect victims of this phenomenon including children. Once adopted, concluding observations are immediately transmitted to the state concerned and made public. As of March 2016, the Committee has reviewed thirty-​three states’ reports (including eleven periodic reports from Azerbaijan, Bolivia, Bosnia and Herzegovina, Colombia, Ecuador, El Salvador, Mali, Mexico, the Philippines, Senegal, and Sri Lanka). Despite its relatively recent existence, it is confronted with the same recurring difficulty as the other treaty bodies: most states parties have failed to submit their initial reports in due time. Such a situation may be due to several factors, including the practical and financial difficulties faced by developing states parties in the preparation of their reports. Notwithstanding, the failure of states to submit their reports represents an important source of concern, because it undermines the primary—​and even existential—​function of the Committee. It could create a double standard among states Parties, since those who respect their reporting duty are subjected to the scrutiny of the Committee, while the other states parties could avoid it by not reporting. In order to avoid such a situation, the MWC has decided to assess the implementation of the Convention despite the absence of the state’s report on the basis of information from other UN bodies and mechanisms.67 Another source of concern stems from the uneven quality of the state reports which constitutes a substantial impediment to the comprehensive review carried out by the Committee. The MWC regularly expresses its concern that some states reports do not contain sufficient information on important questions of both a legal and practical nature.68 More occasionally it has regretted the limited involvement of non-​governmental organizations in the preparation of the reports.69 The quality of the concluding observations adopted by the Committee may also vary.70 This phenomenon is unfortunately common to many other treaty bodies. It 66 This last section is further subdivided into seven parts:  general measures of implementation (legislation and application, data collection, training in and dissemination of the ICRMW); general principles (non-​ discrimination, right to an effective remedy); human rights of all migrant workers; other rights of those who are in a regular situation; particular categories of migrant workers; promotion of equitable, humane, and lawful conditions of migration; follow-​up and dissemination. 67 It did so recently with regard to Belise and Cap Verde: CMW/​C/​BLZ/​CO/​1 (2014), para 1; CMW/​C/​CPV/​ CO/​1 (2015), para 1. 68 See for instance the concluding observations on Azerbaijan (CMW/​C/​AZE/​CO/​1 (2009), para 2); Bolivia (CMW/​C/​BOL/​CO/​1 (2008), para 2); Bosnia and Herzegovina (CMW/​C/​BIH/​CO/​1 (2009), para 2); Mali (CMW/​ C/​MLI/​CO/​1 (2006), para 2); and Rwanda (CMW/​C/​RWA/​CO/​1 (2012), para 2). 69 See the concluding observations on Algeria (CMW/​C/​DZA/​CO/​1 (2010), para 43); Ecuador (CMW/​C/​ECU/​ CO/​2 (2010), para 21); and Egypt (CMW/​C/​EGY/​CO/​1 (2007), para 9). 70 Compare for instance the very poor concluding observations on Mali (CMW/​C/​MLI/​CO/​1 (2006)) with the detailed and comprehensive ones on the Philippines (CMW/​C/​PHL/​CO/​1 (2009)).

614  Vincent Chetail largely depends on several factors, including the detailed nature of the state’s report, the accuracy of subsequent replies and comments from the state concerned, the information available to the Committee from other intergovernmental and non-​governmental sources, as well as the skills and commitment of the persons involved in the review. Whatever the reasons influencing their quality, the degree of detail and the level of accuracy of concluding observations are crucial for ensuring their concrete implementation by states parties. Further efforts should also be made regarding the follow-​up of the concluding observations. Although the Committee systematically requests states to transmit their concluding observations to a broad range of domestic actors (government, parliament, judiciary, public agencies, local authorities and civil society), there is no follow-​up undertaken by the Committee before review of the following periodic report (ie, four years after their adoption). Such a solution is far from being satisfactory. A follow-​up procedure similar to the one established by the Committee on the Elimination of Racial Discrimination (CERD) should be introduced by the Committee in order to maintain a continuing dialogue with states and ensure the effectiveness of the reporting procedure.

(b)  Examination of inter-​state and individual complaints The second function of the MWC is the examination of inter-​state and individual complaints alleging violations of the Convention. While replicating the same quasi-​ judicial procedures established under the other core human rights instruments, delegations anxiously underlined during the drafting history that ‘the role of the Committee  . . .  was not one of a tribunal’.71 States’ suspicions about such complaint procedures has prevailed until now, since they are not yet into force. While this situation may change in the future, other alternative procedures are in any event available for the purpose of bringing both inter-​state and individual complaints. i. Examination of inter-​state complaints Although states are extremely reluctant to make complaints against their peers in the field of human rights, such a possibility, as provided by the ICRMW, could be more frequently invoked in the future. Indeed, in the migration context, the interests of countries of origin and destination often collide. Moreover, countries of origin are increasingly aware of their own responsibilities towards their nationals working abroad. This was clearly the background against which the inter-​state complaint mechanism was drafted. During the drafting process, the main bone of contention concerned the question of whether such a procedure should be mandatory or optional. Several delegations from sending countries (Algeria, China and Morocco) proposed a 71 Report of the Open-​Ended Working Group on the Drafting of an International Convention on the Protection of the Rights of All Migrant Workers and Their Families, A/​C.3/​44/​4 (17 October 1989), para 236, p 49 (Sweden). See also ibid, para 234 (Morocco and Algeria), p 49; ibid, para 235 (Germany and Japan); Report of the Open-​ended Working Group (17 October 1988), para 168, p 36 (Finland).

The Committee on the Protection of Migrant Workers  615 mandatory procedure for the purpose of ensuring the effective implementation of the Convention.72 However, several Western countries (France, Germany, Japan and the US) objected to such a compulsory procedure essentially because it would discourage states from ratifying the convention.73 Though originally favouring the former option, representatives of the USSR, Yugoslavia and Italy ultimately supported the adoption of an optional procedure in order not to prevent future ratifications.74 This last solution thus finally prevailed.75 However, the eventuality of states parties lodging complaints against each other is still remote for the time being. A specific threshold requiring a minimum of states accepting this optional competence of the Committee has been set by Article 76 paragraph 2.76 In light of the ten declarations needed for the inter-​state procedure to come into effect, only Guatemala and El Salvador have so far issued such a declaration.77 Moreover, even with ten declarations, it remains the case that major countries of destination have failed to ratify the Convention. For the procedure to be practically effective, these states would not only need to become states parties to the ICRMW but also to accept the competence of the Committee. The prospect of a first inter-​state complaint being addressed to the Committee thus appears to be a distant one. Be it as it may, the procedure detailed in the ICRMW will largely reproduce the existing one under the other UN treaties. According to Article 76 paragraph 1, the state party which considers that another party is not fulfilling its obligations under the Convention may, by written communication, bring the matter to the attention of that state and inform the Committee. Then, within three months of the receipt of the communication, the receiving state must afford the state that sent the communication an explanation in writing clarifying the matter. If the matter is not adjusted to the satisfaction of both states parties within six months of the receipt being sent by the receiving state of the initial communication, either state has the right to refer the matter to the Committee. 72 Report of the Open-​Ended Working Group on the Drafting of an International Convention on the Protection of the Rights of All Migrant Workers and Their Families, A/​C.3/​44/​1 (19 June 1989), paras 87–​8, p 20. See also Report of the Open-​Ended Working Group (17 October 1989), para 167, p 38 (Morocco). 73 Report of the Open-​Ended Working Group (19 June 1989), paras 85–​6, pp 19–​20; Report of the Open-​ended Working Group (17 October 1989), paras 166 and 168, p 38. The US further argued that ‘the minimal use of the various existing inter-​state complaint procedures indicated the lack of effectiveness of that approach towards the protection of human rights’: Report of the Open-​ended Working Group (17 October 1989), para 168, p 38. 74 Report of the Open-​Ended Working Group (19 June 1989), paras 89–​90, p 20; Report of the Open-​Ended Working Group (17 October 1989), para 169, p 39. 75 Article 76(1) ICRMW. 76 While the CAT was frequently used as a model during the drafting of the supervisory body, the number of required declarations is double under the ICRMW. The latter Convention retains thus the same number of declarations under the ICCPR (Article 41(2)), although all the other UN treaties do not require any specific number of declarations in order to give effect to the inter-​state complaint procedure. Article 76(2) of the ICRMW further specifies in line with the other UN treaties that a declaration may be withdrawn at any time by notification to the Secretary-​General without prejudicing the consideration of a communication already transmitted. During the drafting of this provision, Finland (backed by Morocco and the Netherlands) suggested that states would have to give reasons for withdrawing their declaration. This proposal was however refused, after Germany voiced that ‘it seemed to violate the sovereign right of states to avail themselves, at will and without having to give reasons, of an option presented in an international treaty’: Report of the Open-​ended Working Group (17 October 1989), paras 256–​7, p 53. 77 Turkey has declared that it will recognize the competence of the Committee ‘at a later time’ but has not yet done so.

616  Vincent Chetail At this stage, the role of the Committee is specified by two qualifications. First, it can deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter. However, this shall not be the rule where, in the view of the Committee, the application of the remedy is unreasonably prolonged. Second, the MWC will make available its good offices to the states parties concerned with a view to reaching a ‘friendly solution’. Regarding the working methods governing the examination of communications, the Committee is to hold closed meetings and may call upon the states parties concerned to supply any relevant information. In any event, the states parties concerned have the right to be represented and to make submissions orally and/​or in writing. At the end of this procedure, the Committee will, within twelve months of the receipt of the notice referring the matter to it, submit a report, as follows: (i) If a friendly solution is reached, the Committee will confine its report to a brief statement of the facts and of the solution reached; (ii) If such friendly solution is not reached, the Committee will set forth the relevant facts concerning the issue between the states parties concerned. Although this inter-​state complaint procedure is not yet in force, two different types of similar mechanisms are operative. First, the ICRMW provides for the compulsory jurisdiction of the International Court of Justice for any disputes between states parties concerning its interpretation or application. Under Article 92, such disputes must first be submitted to arbitration at the request of one state party. If, within six months from the date of the request for arbitration, the parties are unable to agree on the organization of the arbitration, any one of those parties may then refer the dispute to the International Court of Justice. However, each state party may declare at the time of ratification that they are not bound by this mechanism of peaceful settlement. For the time being, only Argentina has formally made such a declaration, while Algeria and Morocco formulated a reservation with a similar purpose.78 Although it has not been invoked so far, the compromissory clause contained in Article 92 is accordingly binding for all the other states parties. Second, as restated by Article 78, the inter-​state complaint mechanism provided by the ICRMW is without prejudice to any other procedures for settling disputes or complaints in the field covered by the Convention and laid down in the constituent instruments of, or in conventions adopted by, the UN and its agencies. States parties to the ICRMW may thus resort to the inter-​state complaint mechanisms under the other UN treaties in so far as human rights guaranteed under the former largely coincide with those restated in the ICRMW. Furthermore, states parties to the ICRMW can also use the ILO complaint procedure governed by Articles 26 to 34 of the ILO Constitution.79 A  specific procedure has also been established for dealing with complaints against another ILO member state for violation of freedom of association. Compared to the 78 Both Algeria and Morocco curiously formulated a reservation in place of the declaration under Article 92(2). Their respective reservation specifies in the same terms that ‘any such dispute may be submitted to arbitration only with the agreement of all the parties to the conflict’. 79 Under this mechanism, a complaint may be filed against an ILO member state for not complying with an ILO convention by another member state which ratified the same convention, a delegate to the International Labour Conference or the Governing Body in its own capacity. Upon receipt of a complaint, the Governing Body may form

The Committee on the Protection of Migrant Workers  617 other ILO mechanisms, this procedure presents three notable characteristics:  this complaint may be submitted to the Committee on Freedom of Association not only by member states, but also by employers’ or workers’ organizations. Furthermore, it can even be brought against a state which has not ratified the relevant freedom of association conventions. Finally, exhaustion of domestic remedies is not required as a prerequisite for the admissibility of a complaint. In fact, the Committee on Freedom of Association has played a key role in reaffirming the plain applicability of free association to migrant workers.80 It has notably reasserted that undocumented migrant workers have the right to establish and join labour organizations under Article 2 of the Convention concerning freedom of association and protection of the right to organize (C 87).81 This represents a substantial added value to the ICRMW for, under this last instrument, undocumented migrant workers are only entitled to the right to join—​but not to establish—​a trade union; the benefit of the latter right being restricted to documented migrant workers.82 ILO member states which have ratified the ICRMW are accordingly bound to apply the most favourable treatment ensured by the relevant ILO instrument.83 ii. Examination of individual complaints The individual complaints procedure was introduced at a relatively late stage in the drafting process on a proposal of the Netherlands in order to complement the inter-​ state complaint mechanism.84 As acknowledged by the Dutch delegation, ‘whereas the inter-​state procedure was in practice hardly ever effectively used, the individual complaint procedure had proved to be quite efficient in bodies such as the Human Rights Committee’.85 Finland asserted in this sense that ‘the submission of individual communications to the supervising body was the only way of testing the effective implementation of the Convention’.86 a Commission of Inquiry, consisting of three independent members. The Commission of Inquiry is in charge of carrying out a full investigation of the complaint, ascertaining the facts of the case and making recommendations on measures to be taken to address the problems raised by the complaint. Such a commission is generally set up when a member state is accused of committing persistent and serious violations. For further information, see:  http://​www.ilo.org/​global/​standards/​applying-​and-​promoting-​international-​labour-​standards/​complaints/​ lang-​-​en/​index.htm. 80 See in particular Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO, 5th edn, Geneva, ILO, 2006, paras 214–​15 and 836. 81 Committee on Freedom of Association Report, Case N° 2121, The General Union of Workers of Spain (UGT) v Spain, Report N° 327, Vol LXXXV, 2002, Series B, N° 1, para 561. 82 Articles 26 and 40 of the ICRMW. 83 Article 81(1) of the ICRMW ensures indeed that ‘Nothing in the present Convention shall affect more favourable rights or freedoms granted to migrant workers and members of their families by virtue of . . . any bilateral or multilateral treaty in force for the State Party concerned’. 84 Report of the Open-​Ended Working Group (19 June 1989), para 82, p 18. Such a late proposal is primarily due to the fact that, six years before, several European states had expressed their opposition to an individual complaint mechanism ‘in view of the broad range of the Convention’s stipulations and having regard to the state of the law in the field’: ‘Reflections on a system for supervision of the application of the Convention’, Working paper submitted by Finland, Greece, Italy, Norway, Portugal, Spain and Sweden, annexed to the Report of the Open-​Ended Working Group on the Elaboration of an International Convention on the Protection of the Rights of Migrant Workers and Their Families, A/​C.3/​38/​5 (11 October 1983), para 8, p 34. 85 Report of the Open-​Ended Working Group (17 October 1989), para 274, p 58. 86 Report of the Open-​Ended Working Group (19 June 1989), para 101, p 21.

618  Vincent Chetail Although a majority of delegations were in favour of an individual complaints ­ rocedure,87 Germany and the US (supported by France and Japan) strongly p campaigned against it on the basis of two main objections. Germany argued that such a procedure was ‘not  . . .  appropriate for the Convention under discussion, which imposed sometimes very detailed obligations on states’.88 While endorsing the same concern, the US further advanced a more practical argument that ‘such procedure would entail difficult procedural obstacles for an individual and even where the Committee found in favour of the individual, it would not be in a position to offer redress but only call the attention of the relevant Government to the situation it had reviewed’.89 This is a­ rguably a paradoxical argument because the procedural obstacles and lack of redress are already a hallmark of all the other UN individual petition mechanisms, and one that is not seen as militating against them altogether. At the very least and despite the ­absence of redress, a finding that a state is in violation of its treaty obligations provides a significant form of satisfaction for petitioners and may well be followed by domestic changes. Its opponents being unwilling to block the consensus, the individual complaint procedure was nonetheless eventually endorsed within the text of the Convention as an optional one.90 Under Article 77 paragraph 8 of the ICRMW, the individual complaint procedure will come into force upon the declaration of ten states parties recognizing the competence of the Committee.91 For the time being, this procedure is not yet operative, since only four states parties (Guatemala, Mexico, El Salvador and Uruguay) have made such a declaration so far.92 If and when the required number of states’ declarations are gathered, the complaint procedure will follow the same pattern as the existing ones under the other UN treaties. The admissibility requirements detailed in Article 77 paragraphs 2 and 3, for example, are identical.93 As restated by Article 77 paragraph 4, the Committee will bring any communications to the attention of the concerned state party. Within six months, the state must submit to the Committee its written explanations. Then, the communication is examined by the Committee in

87 Ibid, para 97, p 21 (Algeria); ibid, para 92, p 20 (Sweden); Report of the Open-​Ended Working Group (17 October 1989), para 174, p 39 (USSR and Yugoslavia); ibid, para 270, p 58 (Algeria, Mexico and Greece); para 271, p 58 (Canada); ibid, para 275, p 59 (Morocco); ibid, para 281, p 60 (Australia). 88 Report of the Open-​Ended Working Group (17 October 1989), para 267, p 57. See also: Report of the Open-​ Ended Working Group (19 June 1989), para 85, p 19. 89 Report of the Open-​Ended Working Group (17 October 1989), para 171, p 39. 90 Article 77(1) ICRMW. 91 The ICRMW and the ICERD are the only two UN core instruments requiring such a number of declarations, whereas the Convention against Torture requires five declarations and all the other UN treaties do not contain such a requirement for the entry into force of the individual complaint procedure. As with the inter-​state complaint procedure, such declarations may be withdrawn at any time by notification to the Secretary-​General (Article 77(8) ICRMW). 92 Turkey declared that it will recognize the competence of the Committee under Article 77 ‘at a later time’ but has not yet done so. 93 Any communication is admissible provided that the following five conditions are fulfilled: the communication is not anonymous; it does not constitute an abuse of the right of submission; it is not incompatible with the provisions of the ICRWM; the same matter has not been, and is not being, examined under another procedure of international investigation or settlement; and the individual has exhausted all available domestic remedies, except if their application is unreasonably prolonged or is unlikely to bring effective relief.

The Committee on the Protection of Migrant Workers  619 closed meetings in the light of all information made available to it by or on behalf of the individual and by the state concerned.94 At the end of this quasi-​judicial process, the Committee forwards its views to the state party concerned and to the individual.95 Though such views are not formally binding, experiences under other treaty bodies have shown that the individual complaint procedure represents a particularly useful way for redressing violations of human rights. Such a possibility is further needed when migrant workers—​especially undocumented ones—​do not have effective access to domestic courts as required by Article 18 of the ICRMW. Although this complaint procedure is not yet in force, two other types of UN mechanisms are available to bring an individual complaint. First, migrant workers or members of their families can bring an individual complaint to the seven existing treaty bodies currently so competent (namely the HRC, the CESCR, the CERD, the CAT, the CEDAW, the Committee on Enforced Disappearances and the Committee on the Rights of Persons with Disabilities). These supervisory bodies are instrumental to ensure due respect for the fundamental rights of migrant workers, since most of the rights contained in the ICRMW—​and in particular those of undocumented migrant workers—​are already endorsed in the more general human rights instruments. Furthermore, all the founding conventions of the above mentioned treaty bodies contain specific provisions for non-​citizens. Besides the general principle of non-​ discrimination and equality before the law,96 these instruments notably enshrine the right to leave any country and to return to one’s own country,97 the right of children to acquire a nationality,98 as well as due process guarantees governing expulsion99 and protection against refoulement.100 In practice, however, awareness of the potential of UN instruments to safeguard the rights of migrant workers remains oddly low among lawyers, practitioners, and non-​ governmental organizations (NGOs). As a result, whereas a plethora of cases on asylum seekers and other persons in need of international protection have been submitted to UN treaty bodies, individual complaints of migrant workers remain conspicuously

94 Article 77(5) and (6) ICRMW. 95 Article 77(7) ICRMW. 96 Articles 2(1) and 26 ICCPR; Articles 1, 2, and 5(a) ICERD; Articles 1, 2, and 15(1) Convention on the Elimination of All Forms of Discrimination against Women; Article 2 Convention on the Rights of the Child; and Articles 1, 3(a), 4, and 5 CRPD. 97 Article 12(2) and (4) ICCPR; Article 5(d)(ii) CERD; Article 15(4) Convention on the Elimination of All Forms of Discrimination against Women; Article 10(2) Convention on the Rights of the Child; and Articles 18(1) (c) and 18(1)(d) CRPD. 98 Article 24(2) and (3) ICCPR; Article 5(d)(iii) CERD; Article 9 Convention on the Elimination of All Forms of Discrimination against Women; Article 7 Convention on the Rights of the Child; and Article 18(1)(a), (b) and (2) CRPD. 99 Article 13 ICCPR. See also regarding family reunification Article 10(1) Convention on the Rights of the Child. 100 Article 3 Convention against Torture and Article 16 International Convention for the Protection of All Persons from Enforced Disappearances. Furthermore, in line with other regional supervisory bodies, the HRC and the Committee on the Rights of the Child have construed their respective instruments as encompassing an implicit duty of non-​refoulement: HRC, General Comment No 20: Replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment (Art 7), HRI/​GEN/​1/​Rev.9 (Vol I) (1992), para 9; General Comment No  6:  Treatment of Unaccompanied and Separated Children Outside their Country of Origin, CRC/​GC/​2005/​6 (2005), para 27.

620  Vincent Chetail scarce.101 Among such rare cases (which would equally fall within the scope of the ICRMW), the HRC found in Karakurt v Austria that excluding non-​EU nationals for election to a work council on the sole basis of their nationality constitutes a prohibited form of discrimination under Article 26 of the International Covenant on Civil and Political Rights (ICCPR).102 Besides existing treaty bodies, the second way to bring an individual complaint relies on the special procedures established by the Human Rights Council and, in particular, the Special Rapporteur on the human rights of migrants.103 Among other tasks, the Rapporteur is in charge of receiving information on specific allegations of violations and sending urgent appeals to governments asking for clarification. Such a procedure is much more flexible than those of treaty bodies, especially because the exhaustion of domestic remedies is not required. Its practical impact and degree of effectiveness remain, however, limited. The number of communications sent has been modest compared to the potential number of worldwide violations. From 1 June 2006 to 30 November 2015, the Special Rapporteur on the human rights of migrants sent only 212 communications, and states only responded to 62 per cent of them.104

(c)  General Comments As with to the other UN treaty bodies, the last—​albeit implicit—​competence of the MWC is the adoption of interpretative comments on the scope and content of the provisions of the ICRMW.105 Though originally aimed at clarifying the reporting duties of states parties with respect to certain provisions, general comments have been increasingly used by supervisory bodies for pursuing a much broader function. By providing an authoritative—​though non-​binding—​interpretation, they have gained considerable influence in promoting a common understanding of treaty obligations among a wide range of actors (including domestic courts, NGOs, and UN agencies). Following the practice initiated by its UN counterparts, the Migrant Worker Committee has adopted two General Comments: General Comment No 1 on migrant 101 The CAT is by far the most solicited UN treaty body. It has even become an anti-​deportation committee, since between 80 and 90 per cent of all individual complaints submitted to the CAT concern alleged violations of Article 3 on the principle of non-​refoulement: V Chetail, ‘Le Comité des Nations Unies contre la torture et l’expulsion des étrangers: dix ans de jurisprudence’ (2006) 26 Revue suisse de droit international et européen 63, at 66; M. Nowak and E McArthur (eds), The United Nations Convention Against Torture. A Commentary (Oxford: Oxford University Press, 2008) 159. 102 HRC, Karakurt v Autria, A/​57/​40 vol II (4 April 2002)  304 (CCPR/​C/​74/​D/​965/​2000), paras 8-​4-​9. The CERD also found that a woman’s rights under ICERD were violated due to her dismissal when pregnant which constituted a discrimination based on sex and status as a non-​national: Yilmaz-​Dogan v the Netherlands, Comm No 1/​1984, Views of 29 September 1988. 103 The mandate of the Special Rapporteur on the Human Rights of Migrants was created in 1999 by the Commission on Human Rights, pursuant to Resolution 1999/​44. Since then, this mandate has been extended by the Commission on Human Rights’ Resolutions 2002/​62 and 2005/​47 and the Human Rights Council’s Resolutions 8/​10 and 17/​12, each for a period of three years. 104 Communications Report of Special Procedures, A/​HRC/​31/​79 (19 February 2016), p 8. 105 Article 74(7) requires in general terms that its annual report to the General Assembly should contain ‘its own considerations and recommendations, based, in particular, on the examination of the reports and any observations presented by states Parties’.

The Committee on the Protection of Migrant Workers  621 domestic workers in 2011 and General Comment No 2 on the rights of migrant workers in an irregular situation and members of their families in 2013, while a third one on child migrants is currently under preparation in collaboration with the CRC. The two General Comments constitute a useful initiative, notably because domestic workers and undocumented migrants represent a substantial part of the total population of migrant workers. One could nevertheless object that, instead of producing general comments, the MWC could have concentrated its effort on other tasks, such as promoting awareness of the ICRMW among non-​states parties. Although this last task is not incompatible with—​and is even complementary to—​the adoption of general comments, the low number of states parties to the ICRMW remains the most pressing issue. Moreover, the very timing of General Comment No 1 could be debatable. It was adopted in February 2011 during the negotiation of the new ILO Convention concerning decent work for domestic workers which was adopted a few months later in June 2011.106 The hidden purpose was probably to influence the negotiation of the ILO convention—​which contains specific provisions on domestic migrant workers107—​and arguably to increase the low visibility of the MWC. Because of the risk of adopting diverging standards, it would have been more cautious for the Committee to wait for the adoption of the ILO Convention before detailing its own interpretation in a general comment. Fortunately, thanks to the close cooperation between the Committee and ILO, the General Comment and the ILO Convention converge in their normative substance. General Comment No 1 on migrant domestic workers is structured in three parts of uneven legal interest. The two first parts provide a rather long narrative background on the practical difficulties faced by migrant domestic workers and the correlative gaps of protection. While providing instructive information, one can wonder whether such a lengthy factual account has a place in a general comment which is supposed to focus on the legal interpretation of states’ obligations. This interpretative guidance is provided in the last part devoted to recommendations to states parties. Several recommendations mainly restate the most salient provisions of the ICRMW as applicable to migrant domestic workers. They notably concern equal treatment with nationals in social security and health services,108 the right to organize and to engage in collective bargaining,109 freedom of religion and expression,110 equal access to justice and remedies,111 as well as special protections for children.112 Other recommendations are more detailed and contextualized. They specify, for instance, the domestic legal frame of recruitment agencies113 and the role of embassies and consulates of countries of origin in protecting 106 International Labour Conference, Provisional Record, 15 A, Text of the Convention concerning decent work for domestic worker, 100th Session, Geneva, 2011. 107 See Articles 8 and 15. Moreover, the ILO Convention is generally applicable to ‘all domestic workers’ (Article 2(1)) and states parties are accordingly bound ‘to take measures to ensure the effective promotion and protection of the human rights of all domestic workers, as set out in this Convention’ (Article 3(1); emphasis added). 108 General Comment No 1 on Migrant Domestic Workers, paras 42–​4. 109 Ibid, paras 45–​7. 110 Ibid, para 48. 111 Ibid, paras 49–​50. 112 Ibid, paras 56–​9. 113 Ibid, paras 33–​6.

622  Vincent Chetail the rights of their nationals employed abroad.114 Overall, despite—​and perhaps because of—​the close adoption date of this General Comment and the ILO Convention, they prove to be mutually supportive in many aspects, including the right of domestic workers to retain possession of their travel and identity documents,115 the need for a written contract of employment116 and the states’ obligation to regulate and monitor private recruitment agencies.117 Nonetheless, given the critiques frequently raised about the ICRMW for its lack of gender sensitivity, one would have expected more detailed and systematic guidance on this item in General Comment No 1. While acknowledging that ‘women make up the overwhelming majority of [domestic] workers’,118 the specific section devoted to a ‘gender perspective’119 and the two occurrences in the other recommendations to state parties120 seem too general and arguably insufficient. This is all the more regrettable given the preceding involvement of the MWC in the drafting of General Recommendation No 26 on women migrant workers121 adopted in December 2008 by the Committee on the Elimination of Discrimination against Women.122 This last document formulates a rather comprehensive gender-​sensitive and rights-​based set of guidelines addressed to all states involved in the migration process.123 General Comment No 2 on the rights of migrant workers in an irregular situation and members of their families suffers from the same drawback: women migrants are mentioned in only five paragraphs out of seventy-​nine. This General Comment is composed of two parts devoted to the general applicable framework and the specific provisions of the ICRMW on undocumented migrant workers. The MWC observes that ‘[m]‌ost of the rights protected in Part III [of the ICRMW on undocumented migrant workers] are common to a host of international human rights treaties’, including the two UN Covenants.124 Some other rights—​such as those related to detention—​have been contextualized to take into account the situation of migrant workers, whereas few rights are truly specific to this Convention. The latter include, most notably, protection against unauthorized confiscation or destruction of personal documents (Article 21). 114 Ibid, paras 62–​4. 115 Article 9(c) ILO Convention; General Comment No 1 on Migrant Domestic Workers, para 39. 116 Article 8(1) ILO Convention; General Comment No 1 on Migrant Domestic Workers, paras 32(b) and 40. 117 Article 15 ILO Convention; General Comment No 1 on Migrant Domestic Workers, paras 33–​6. 118 General Comment No 1 on Migrant Domestic Workers, para 1. 119 Ibid, paras 60–​1. 120 Ibid, paras 43 and 52. 121 CEDAW/​C/​2009/​WP.1/​R (5 December  2008). 122 Report of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, 7th Session (26–​30 November. 2007), 8th Session (14–​25 April 2008), A/​63/​48(SUPP) (1 July 2008), p 3, para 22. 123 It notably spells out the particular responsibilities of countries of origin (including lifting of sex-​specific bans and discriminatory restrictions on women’s migration; equal and independent access to travel documents; as well as socio-​economic and psychological services for facilitating the reintegration of women who have returned); the responsibilities of transit countries (such as gender-​sensitive training and monitoring of Government agents dealing with women migrants); as well as those specific to countries of destination (including adequate legal remedies and complaints mechanisms; non-​discriminatory family reunification schemes and residency regulations; and specific protection of undocumented women migrants). 124 General Comment No 2 on the rights of migrant workers in an irregular situation and members of their families, para 6.

The Committee on the Protection of Migrant Workers  623 Against such a normative frame, General Comment No 2 acknowledges that ‘the Convention provides only for a minimum standard of protection’.125 As a result of the most favourable treatment restated in Article 80 paragraph 1 of the ICRMW, states parties are thus bound to apply it in accordance with the other human rights treaties. This proves to be particularly important since, as acknowledged by the MWC, the UN Covenants provide a wider scope of protection regarding numerous rights, such as the right of peaceful assembly, the right to freely enter marriage and to equality of rights and responsibilities of spouses, the right of every child to special protection, minority rights, the right to strike, the right to maternity protection and the right to an adequate standard of living (including adequate food).126 After underlining the crucial importance and complementary application of general human rights treaties, the second part of General Comment No 2 focuses on the provisions of the ICRMW devoted to undocumented migrant workers. It accordingly restates the most salient guarantees and sometimes specifies their scope and interpretation regarding a broad range of basic rights, whether civil and political (protection against violence,127 arbitrary detention,128 and inhuman treatment,129 as well as procedural guarantees of expulsion130) or economic or social (protection against labour exploitation,131 right to social security,132 medical care,133 and education134). Interestingly, although there is no explicit article in the Convention, the MWC considers that state parties are required to respect the principle of non-​refoulement as deriving from the general provisions on the right to life and the prohibition of torture, inhuman or degrading treatment.135 Among the specific provisions of the ICRMW, the most pressing issue clearly relates to the arbitrary detention of undocumented migrant workers as prohibited by Articles 16 and 17. While specifying the scope of these two provisions, the MWC reaffirms in line with the Special Rapporteur on the human rights of migrants136 that: crossing the border of a country in an unauthorised manner or without proper documentation, or overstaying a permit of stay does not constitute a crime. Criminalizing irregular entry into a country exceeds the legitimate interest of states parties to control and regulate irregular migration, and leads to unnecessary detention. While irregular

125 Ibid, para 7. 126 Ibid, paras 9–​10. See also para 65 with regard to the right to form trade union and para 72 on medical care. 127 Ibid, paras 21–​2. 128 Ibid, paras 23–​35. 129 Ibid, paras 36–​47. 130 Ibid, paras 48–​59. 131 Ibid, paras 60–​6. 132 Ibid, paras 67–​71. 133 Ibid, paras 72–​4. 134 Ibid, paras 75–​9. 135 Ibid, para 50. 136 See report of the Special Rapporteur on the human rights of migrants to the Human Rights Council (A/​ HRC/​20/​24), para  13.

624  Vincent Chetail entry and stay may constitute administrative offences, they are not crimes per se against persons, property or national security.137

General Comment No 2 also addresses the sensitive issue of regularization. According to the MWC, although ‘states parties have no obligation to regularise the situation of migrant workers or members of their families’,138 ‘regularization is the most effective measure to address the extreme vulnerability of migrant workers and members of their families in an irregular situation’.139 Whenever states Parties consider the possibility of such regularization, Article 69 paragraph 2 of the ICRMW requires that they must take into account the circumstances of their entry, the duration of their stay and any other relevant considerations including their family situation. The need for such regularization will persist as long as immigration legislation will continue to restrict labour migration without regard to the economic needs of states. One should not forget indeed that the very existence of undocumented migrant workers primarily results from the enduring gap between increasingly restrictive immigration legislation and the basic needs of labour markets.140 Following this stance, the MWC rightly recalls that ‘[b]‌y making regular channels of migration available, states parties also contribute to the aim of preventing and eliminating illegal or clandestine movements and employment of migrant workers in an irregular situation’.141

17.4  Cooperation of the Migrant Workers Committee with other concerned bodies Cooperation of the MWC with other concerned bodies is crucial for both legal and policy reasons. On the one hand, as exemplified before, it is a prerequisite to adopt harmonized guidance in the application of the numerous overlapping norms relevant to migrant workers. On the other hand, by contrast to the other core UN instruments, cooperation is further required by the need to promote international awareness of the ICRMW and encourage its ratification. Cooperation with other concerned bodies is further complicated by the great number of stakeholders working in the field of labour migration. This may however represent an opportunity for the MWC to establish itself as a forum of discussion for a great diversity of institutional actors. While a specific status has been granted to ILO by the ICRMW, many other stakeholders are increasingly 137 General Comment No 2 on the rights of migrant workers in an irregular situation and members of their families, para 24. 138 Ibid, para 15. See also Article 35 of the ICMWR. 139 General Comment No 2 on the rights of migrant workers in an irregular situation and members of their families, para 16. 140 As notably recalled by F Crépeau, much economic literature has highlighted how migrants complement rather than compete with citizens and contribute to the economic growth of host states with very limited downsides. See: Report of the Special rapporteur on the human rights of migrants, Banking on mobility over a generation: follow-​up to the regional study on the management of the external borders of the European Union and its impact on the human rights of migrants, A/​HRC/​29/​36 (2015), paras  73–​4. 141 General Comment No 2 on the rights of migrant workers in an irregular situation and members of their families, para 17.

The Committee on the Protection of Migrant Workers  625 involved in the work of the Committee, including UN agencies and intergovernmental organizations, human rights treaty bodies, special procedures, and NGOs.

(a)  International Labour Organisation The ICRMW is the only core human rights treaty which explicitly assigns a role to the ILO in its supervisory mechanism. After lively debates during the drafting of the Convention, delegations finally agreed ‘to attribute to the International Labour Organisation a special role as an adviser to the Committee’.142 The ILO has been accordingly granted two distinctive functions. The first one is of a general nature and enables it to participate in the deliberations of the Committee, while the other function concerns more specifically the examination of states’ reports. Both of them are, however, consultative and do not bind the Committee. i. Participation of ILO in the meetings of the Migrant Workers Committee Under Article 74 paragraph 5 of the ICRMW, ILO representatives have the right to participate in the meetings of the Committee in a consultative capacity. This advisory function has a twofold purpose. First, the presence of non-​voting representatives enables the Committee to benefit from the well-​established expertise of the ILO, without formally interfering in the adoption of its decisions since only members of the Committee have the right to vote. Although the drafting of the Convention revealed diverging opinions on the role of ILO in the supervisory mechanism, ‘no one had . . . denied the special expertise of ILO’ as ‘the only global organization which had established universal conventions in the area of migration’.143 Second, its right to participate in the meetings of the Committee is aimed at avoiding variations and conflicting guidance in the interpretation and implementation of the ICRMW, which overlaps with ILO conventions N° 97 and 143 on migrant workers. The need to promote consistency between the UN Convention and its ILO counterparts was indeed a key concern of the drafters. In fact, such a concern is far from being confined to these two ILO conventions specifically devoted to migrant workers, since many other ILO conventions are also applicable to them. For instance, Convention No 118 was adopted in 1962 to promote equality of treatment between nationals and non-​nationals in the field of social security, through a rather complex scheme primarily based on reciprocity between states parties. Several more recent conventions—​though adopted for a broader purpose—​also include specific provisions on migrant workers. They are most notably Convention No 168 concerning employment promotion and protection against unemployment adopted in 1988,144 Convention No 181 concerning private employment 142 Report of the Open-​Ended Working Group (14 June 1984), para 92, p 26 (Algeria, Mexico, and Morocco). 143 Report of the Open-​Ended Working Group (17 October 1988), para 166, p 34 (Finland). See also Report of the Open-​Ended Working Group (14 June 1984), paras 48–​9 (Chairman). 144 Article 8 mentions ‘migrant workers lawfully resident in the country’ among the categories of disadvantaged persons who should benefit from special programmes to promote job opportunities and employment assistance.

626  Vincent Chetail agencies adopted in 1997145 and the 2011 Convention No 189 concerning decent work for domestic workers. More generally, the ‘fundamental rights at work’ proclaimed in the ILO Declaration on Fundamental Principles and Rights at Work146 retain their relevance to assert the rights of migrant workers. They cover a rather comprehensive set of rules, including freedom of association and the right to collective bargaining, the elimination of all forms of forced or compulsory labour, the effective abolition of child labour and the elimination of discrimination in respect of employment and occupation. The applicability of these fundamental guarantees to any migrant workers (including undocumented ones) was further confirmed in 2004 at the 92nd International Labour Conference.147 In addition to these basic rights, most of the ILO conventions are generally applicable to all workers without any discrimination—​thereby including migrant workers—​on a wide range of issues (such as hours of work,148 protection of wages,149 maternity protection,150 holidays with pay,151 and occupational safety and health152). Because the normative framework is so dense, the close cooperation between the ILO and the MWC is crucial for promoting cogent and harmonized guidance on the application of the numerous applicable standards. However, when the ICRMW was adopted, the right of ILO representatives to participate in the meetings of the Committee raised some mixed comments within the ILO itself. Hasenau argued that the similar consultative role assigned to ILO in the drafting of the ICRMW did not prevent the adoption of provisions which, according to him, jeopardize existing international labour standards.153 He was thus sceptical that the participation of non-​voting ILO representatives will ensure a more effective collaboration, ‘in particular because the ILO’s representatives will be regarded as observers whereas the other members of the Committee will consider themselves endowed with superior authority if not as representatives of states’.154 On the contrary, Böhning—​another ILO official—​considered in more positive terms that ‘the ILO welcomed this opportunity Article 26 paragraph 1 further requires that ‘migrant workers on return to their home country’ shall receive social benefits, except in so far as they have acquired rights under the legislation of the country where they last worked. 145 Its Article 8(1) requires states parties ‘to provide adequate protection for and prevent abuses of migrant workers recruited or placed in its territory by private employment agencies’. Paragraph 2 adds that ‘when workers are recruited in one country for work in another, the Members concerned shall consider concluding bilateral agreements to prevent abuses and fraudulent practices in recruitment, placement and employment’. 146 ILO Declaration on Fundamental Principles and Rights at Work, adopted by the International Labour Conference, 86th Session (18 June 1998). 147 ‘The fundamental principles and rights at work are universal and applicable to all people in all states, regardless of the level of economic development. They thus apply to all migrant workers without distinction, whether they are temporary or permanent migrant workers, or whether they are regular migrants or migrants in an irregular situation’: International Labour Conference, Report VI, Towards a Fair Deal for Migrant Workers in the Global Economy, ILO, 2004, 82. 148 Article 2 of the Hours of Work (Industry) Convention (C1), 1919. 149 Article 2 of the Protection of Wages Convention (C95), 1949. 150 Article 1 of the Maternity Protection Convention (C183), 2000. 151 Article 2 of the Holidays with Pay Convention (Revised) (C132), 1970. 152 Article 2 of the Occupational Safety and Health Convention (C155), 1981. 153 M. Hasenau, ‘Setting Norms in the United Nations System: the Draft Convention on the Protection of the Rights of All Migrant Workers and Their Families in Relation to ILO in Standards on Migrant Workers’, p 153. 154 Ibid.

The Committee on the Protection of Migrant Workers  627 to contribute to the work of the UN Committee. It will, no doubt, try to impress on the UN Committee that identically worded or similarly inspired provisions in the UN Convention should be interpreted and applied on the lines already drawn by the ILO Committee of Experts. But one must have no illusions about ILO staff members swaying the proceedings in meetings of representatives of states parties’.155 Despite the mixed reactions it initially raised, the collaboration with ILO has proven to be particularly fruitful since the establishment of the MWC. ILO representatives have been closely associated with the work of the Committee from the very beginning: they were consulted on its working methods and they shared their experience in the examination of states’ reports under the ILO migrant workers conventions.156 Such closed cooperation contrasts starkly with the unenthusiastic—​if not competing—​ atmosphere which haunted the drafting of the Convention. As a further confirmation of this positive tone, the Committee has regularly expressed ‘its appreciation for the active support of its work by the International Labour Organization’ in its annual reports to the General Assembly.157 ii. Participation of ILO in the examination of states’ reports on the implementation of the Migrant Workers Convention The same collaborative approach has been developed with regard to the second more specific function assigned to ILO by the ICRMW. Article 74 paragraph 2 instructs the Secretary-​General to transmit to the ILO’s Director-​General copies of the reports submitted by states parties concerned and information relevant to the consideration of these reports, in order for ILO to assist the Committee with the expertise on matters falling within its competence. A concrete opportunity is accordingly given to ILO to be actively involved in the examination of the states’ reports on the implementation of the ICRMW. States’ reports must not only be transmitted to it on a systematic basis, ILO is also explicitly entitled to provide its comments and relevant information on the state concerned. The rather procedural nature of such a provision however raised some concerns during the drafting of the Convention, because of the risk of ‘reduc[ing] the role of ILO to that of a mere post office sending letters to the Committee through the Secretary-​ General’.158 In order to avoid this situation, the last sentence of Article 74 paragraph 2 specifically obliges the Committee to ‘consider in its deliberations such comments and materials as the Office may provide’. While not being bound by the observations and information provided by ILO, the Committee is thus required to take due account of them in examining states’ reports. 155 R. Böhning, ‘The ILO and the New UN Convention on Migrant Workers: The Past and Future’ (1991) 25(4) International Migration Review 698–​709, at 704–​5. 156 Report of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1st Session (1–​5 March 2004), A/​59/​48(SUPP) (1 July 2004), para 15, p 7. 157 Report of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, 9th Session (24–​28 November 2008), 10th Session (20 April–​1 May 2009), A/​64/​48(SUPP) (1 January 2009), para 21, p 3. See also: Report of the Committee (1 July 2008), para 24, p 4. 158 Report of the Open-​Ended Working Group (17 October 1988), para 167, p 34 (Finland).

628  Vincent Chetail In practice, participation of ILO in the examination of states’ reports has proven to be particularly useful and constructive. As acknowledged by the former Secretary of the Committee, ILO regularly provides the MWC with information on the situation of migrant workers in the reported state; it may even attend the closed meetings in which the list of issues on the reports are prepared; and can submit its comments when the Committee is adopting its concluding observations on the states parties’ reports.159 As a result of such close cooperation, the concluding observations of the Committee systematically call for ratification of ILO Conventions N° 97 and N° 143 by reporting states which have not yet done so.160 They also—​though more occasionally—​refer to the observations of the ILO Committee of Experts.161 In order to encourage further cooperation and exchanges in the follow-​up to its participation, Article 74 paragraph 8 also requires the Secretary-​General to transmit the Committee’s annual report to ILO.

(b)  Other concerned international organizations Bearing in mind the growing importance of migration in the mandate of numerous international organizations, the Committee is expected to establish close cooperation with a broad range of stakeholders. Contrary to the unique role given to ILO by the ICRMW, the participation of other concerned international organizations is not a right in itself. It is conditioned upon an explicit invitation from the Committee. Under Article 74 paragraph 6 of the Convention, the Committee may invite representatives of other specialized agencies and organs of the United Nations, as well as of intergovernmental organizations, to be present and heard in its meetings whenever matters falling within their field of competence are considered. Article 74 paragraph 4 further adds that the Committee may invite them to submit written information on such matters. Their contribution largely varies from one organization to another depending on the specificities of their respective mandates. i. The International Organization for Migration The International Organization for Migration (IOM) is usually invited to participate in the work of the Committee. Established in 1951, IOM is the only universal organization specifically mandated to deal with migrations and promoting international cooperation on this sensitive matter. However, despite its broad field of competence, IOM is primarily a service provider to its member states on specific projects dealing with a wide range of particular issues (such as emergency assistance, human trafficking, assisted voluntary return and border management). 159 Edelenbos, at 115. 160 See in particular the following concluding observations: Colombia, CMW/​C/​COL/​CO/​1 (22 May 2009), para 12; Mexico, CMW/​C/​MEX/​CO/​2 (3 May 2011), para 14; Egypt, CMW/​C/​EGY/​CO/​1 (25 May 2007), para 61; Syria (2 May 2008), para 14; Bolivia, CMW/​C/​BOL/​CO/​1 (29 April 2008), para 16; Senegal (10 December 2010), para 11; Sri Lanka (19 October 2009), para 18. 161 See for instance the following concluding observations: Bosnia-​Herzegovina, CMW/​C/​BIH/​CO/​1 (3 June 2009), para 28; The Philippines (22 May 2009), para 34.

The Committee on the Protection of Migrant Workers  629 Its self-​declared ambition to be ‘a leading global organization . . . addressing the migration phenomenon from an integral and holistic perspective’162 is further limited by the absence of any protection mandate. Although the preamble of its Constitution generally refers to ‘the specific situation and needs of the migrant as an individual human being’ and its ‘dignity and self-​respect,’ IOM has been primarily conceived as ‘a forum to states as well as international and other organizations for the exchange of views and experiences, and the promotion of co-​operation and co-​ordination of efforts on international migration issues’.163 While the absence of any legal and protection mandate should not be overestimated,164 it substantially limits its role and impact on the work of the MWC. In practice, despite its membership of the International Steering Committee of the Campaign for the Ratification of the Migrant Workers Convention, IOM has done little to promote better awareness of the ICRMW and encourage its ratification among its 173 member states. The same is true with regard to the Global Forum on Migration and Development. This informal and state-​driven process has been established outside the UN for the purpose of strengthening multilateral dialogue and cooperation on the multifaceted interactions between migration and development.165 Whereas the MWC contributed to the General Assembly High Level Dialogue which prompted the creation of the Global Forum, it was surprisingly not invited to the first forum organized in 2007. Although, since then, it has been able to contribute to all subsequent annual meetings of the Global Forum, this disappointing experience was not unique.166 This reflects in turn the low visibility of the ICRMW and a sense of mistrust, primarily perceptible from Western countries. Such disinclination starkly contrasts with the potentials of the ICRMW in maximizing the positive linkages between labour migration and development. While the migration-​development nexus has become the new mantra for rethinking the movement of peoples around the mutual interests of both states of origin and destination, the ICRMW offers a particularly useful normative frame for addressing the multifaceted issues at stake.167 First, the Convention is the only universal and comprehensive 162 Review of the IOM Strategy, 99th Session, MC/​INF/​302 (12 October 2010), para 1, p 1. 163 Art. 1(1)(e) of its Constitution. 164 While acknowledging the absence of a legal protection mandate, the Review of the IOM Strategy adds in a footnote that ‘the fact remains that its activities contribute to protecting human rights, having the effect, or consequence, of protecting persons involved in migration’: Review of the IOM Strategy, at 3, fn 1. See also: The Human Rights of Migrant: IOM Policy and Activities, 98th Session, MC/​INF/​298 (12 November 2009), para 10, p 2. 165 Summary of the High-​Level Dialogue on International Migration and Development, Note by the President of the General Assembly, A/​61/​515 (2006), at 5. 166 In the first years of its existence, the Committee encountered a similarly disappointing experience with the Global Commission on International Migration established by the Secretary-​General in December 2003 with the mandate to provide a report for formulating a coherent, comprehensive and global response on international migrations. Despite several informal meetings with the Global Commission and the presence of a member of the MWC within the Global Commission, the final report delivered in 2005 failed to call for ratification of the ICRMW and instead took note of ‘the decision of many states not to ratify the 1990 Convention’: Migration in an Interconnected World: New Directions for Actions, Report of the Global Commission on International Migration, October 2005, paras 15–​24, pp 56–​8. In the 88 pages of the report, the MWC is only mentioned once as an example of the ‘proliferation of other global initiatives at the institutional level’: ibid, para 38, p 72. 167 For further discussion on the potentials and limits of the migration-​development nexus, see:  V Chetail, ‘Paradigm and Paradox’, and the bibliographical references mentioned therein.

630  Vincent Chetail instrument regulating the whole migration cycle from pre-​departure to post-​arrival. It notably includes temporary labour migration168 which constitutes a key issue for the numerous multilateral and regional initiatives recently launched under the banner of the migration-​development nexus. Second, echoing the growing concern for better-​ managed migration, the ICRMW addresses the need for consultation and cooperation between states to ensure that migration takes place in sound, equitable, and lawful conditions. This obligation of cooperation concerns, among others, the orderly return of migrant workers, their reintegration in countries of origin, as well as the prevention and elimination of irregular migration (including the imposition of sanctions on those who exploit undocumented migrants, such as traffickers and employers).169 Third, remittances—​which represent a vital source for financing development of countries of origin—​are explicitly acknowledged as a right of migrant workers to transfer their earnings and savings into their own countries.170 However, though providing a unique opportunity to raise the potentials of the ICRMW and its international awareness, the Global Forum on Migration and Development has proved so far to have had a particularly limited impact in promoting its ratification. Like IOM, this worldwide consultative process is further mitigated by its lack of decision-​making and norm-​setting activities. ii. The United Nations High Commissioner for Refugees Within the UN, the High Commissioner for Refugees (UNHCR) regularly cooperates with the Committee in providing information on country situations related to its own mandate (ie, refugees, asylum-​seekers and statelessness persons).171 Its role is nevertheless bound to be limited since the ICRMW explicitly excludes from its scope ‘refugees and stateless persons, unless such application is provided for in the relevant national legislation of, or international instruments in force for, the state Party concerned’ (Article 3 d)). However, this exclusion does not reflect the subtle and rather dense normative interactions between the ICRMW and the other instruments devoted to refugees and stateless persons. As far as stateless persons are concerned, the ICRMW draws an implicit distinction between stateless migrant workers and their children. The former are excluded from the scope of the Convention (unless provided otherwise by international or national instruments). They are thus primarily governed by the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. By contrast, children of migrant workers who become stateless are included within the scope of the ICRMW in so far as such situation raises an issue under its Article 29. 168 Seasonal workers (Art 59), project-​tied workers (Art. 61), and other specified-​employment workers (Art 62). 169 See Articles 67 and 68 ICRMW. 170 See Articles 32 and 47 ICRMW. 171 Even before the entry into force of the ICRMW, the Agenda for Protection endorsed by the UNHCR Executive Committee in 2002 contains a recommendation encouraging states ‘in the broad context of migration management . . . to consider acceding to the 1990 United Nations Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, and relevant ILO Conventions (notably nos. 97 and 143)’: A/​ AC.96/​965/​Add1 (26 January 2002), p 11.

The Committee on the Protection of Migrant Workers  631 This last provision ensures that: ‘Each child of a migrant worker shall have the right to a name, to registration of birth and to a nationality’. The Committee is accordingly entitled to review the domestic law of states parties which would contravene this provision by creating stateless children.172 The resulting distinction between migrant workers and their children sounds rather formal and rigid. Although the travaux préparatoires are not clear about the motivation behind such a distinction, the absence of any provision on the nationality of migrant workers probably echoes the anxiety of states towards their permanent settlement. The situation is much more complex regarding refugees and other persons in need of international protection. Though refugees and migrant workers are governed by different international instruments, these two categories of migrants frequently overlap both in practice and principle. As observed by the MWC, ‘it [is] possible for migrant workers to become refugees and vice versa’.173 However, the Committee is far from providing a clear and principled approach on this issue. Even worse, its practice is not always in line with the terms of its own mandate. According to Article 3 d) of the ICRMW, the MWC can assess the application of the ICRMW to refugees only if such application is provided for in the national legislation of, or international instruments in force for, the state party concerned. Curiously enough, the Committee sometimes gives the impression of having forgotten this last requirement when assessing states’ reports. Indeed, its concluding observations on Mexico and Ecuador contains several—​and rather substantial—​recommendations on refugees and other persons in need of protection,174 whereas both countries have explicitly made it clear that the ICRMW does not apply to them.175 This unexpected activism of the MWC in the field of refugee protection could nonetheless be reconciled with the terms of its own mandate. The term ‘refugee’ under Article 3 d) may be construed in its literal and restrictive sense as referring to refugees formally recognized as such by states parties in applying the Geneva Convention relating to the Status of Refugees. As a result, asylum seekers and other persons in need of protection (including beneficiaries of complementary protection to the refugee status) would fall within the scope of the ICRMW provided that they correspond to the 172 In its concluding observations on Colombia, ‘the Committee notes with concern that, even though the children of all migrant workers, including those without documentation, may be registered with the Civil Registry, only children having at least one parent domiciled in Colombia are eligible for Colombian nationality. The Committee is particularly concerned about children who may become stateless. In this connection, the Committee welcomes the fact that the state party is in the process of acceding to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness’: CMW/​C/​COL/​CO/​1 (22 May 2009), para 29, p 6. In its observations on Egypt, it also ‘regrets that children born in Egypt of migrant workers, whether in regular or irregular situation, are not given a birth certificate by the Egyptian civil registry, in violation of article 29 of the Convention’: CMW/​C/​EGY/​CO/​1 (25 May 2007), para 34, p 6. 173 Summary Record of the 73rd Meeting: Consideration of Initial Report of the Syrian Arab Republic, CMW/​C/​ SR.73 (29 April 2008), para 21, p 4 (Chairperson). 174 See the relevant extracts mentioned infra. 175 Written Replies by the Government of Ecuador Concerning the List of Issues Received by the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families Relating to the Consideration of the Initial Report, CMW/​C/​ECU/​Q/​1/​Add.1 (17 August 2007), para 42, p 14; Written Replies by the Government of Mexico Concerning the List of Issues Received by the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families Relating to the Consideration of the Initial Report, CMW/​C/​MEX/​Q/​1/​Add.1 (5 October 2006), para 20, p 6.

632  Vincent Chetail broad definition of migrant workers under Article 2 paragraph 1 (namely ‘a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a state of which he or she is not a national’). Although the Committee is not explicit on the rationale of its inclusive approach, its observations on asylum seekers in reported states can only be justified through a literal reading of the term ‘refugee’ under Article 3 d). For instance, in its concluding observations on the report of Mexico, the Committee expressed its concern that ‘migrant workers held in migrant holding centres . . . who make use of the procedure to determine refugee status are kept in those centres for prolonged periods’.176 The same observation may be made with regard to other persons in need of international protection who are not formally recognized as refugees by State parties to the ICRMW. This is notably exemplified by the concluding observations on Syria in 2008. Although the state party argued that Iraqi nationals who had sought asylum in Syria were neither refugees nor migrants falling within the ambit of the Convention, the Committee recalled that: ‘in accordance with the definition of “migrant workers” in article 2, paragraph 1, of the Convention, Part III of the Convention is to be applied to all non-​nationals engaged in a remunerated activity, including those in an irregular situation. In the light of the state party’s position that the said Iraqi nationals are not to be considered refugees, and as they are not therefore excluded from the scope of the Convention under article 3(d), the Committee encourages the state party to consider according to all Iraqi workers in an irregular situation, to the largest extent possible, and insofar as this is not already the case, the rights provided for in Part III of the Convention’.177 Another illustration of this inclusive interpretation may be found in the concluding observations on Ecuador. The Committee expressed its concern that ‘there is in the state party a high number of persons in need of international protection, notably Colombians, who do not apply for asylum for a number of reasons (including the fear of being deported and stringent documentation requirements) and remain in a very vulnerable and marginalised situation’.178 It further recommended in particularly broad terms that: ‘the state Party [must] ensure that migration control measures do not undermine the safeguards granted by either the 1951 Geneva Convention relating to the Status of Refugees, where applicable, or the present Convention, in order to guarantee that no vulnerable group is left without adequate protection’.179 Overall, although the piecemeal approach followed by the Committee is not always crystal clear, its broad interpretation unveils the huge potential of the ICRWM to fill 176 Concluding Observations: Mexico (3 May 2011), para 35, p 6. It further recommends that ‘effective measures be taken to ensure that all migrant workers held in migrant holding centres . . . are properly informed of their rights in a language they understand, especially with regard to their rights . . . to request asylum’: ibid, para 42, p 7. 177 Concluding Observations: Syrian Arab Republic (2 May 2008), para 30, p 5. This, to my knowledge, is the only explicit reference to Article 3(d) in the concluding observations adopted so far by the Committee. Although this was not mentioned in the concluding observations, one should add that Syria has not ratified the Geneva Convention relating to the Status of Refugees. 178 Concluding Observations: Ecuador (5 December 2007), para 28, p 6. However, the Committee does not indicate whether they are migrant workers under the definition of the ICRMW 179 Ibid, para 29.

The Committee on the Protection of Migrant Workers  633 the gaps of the Geneva Convention relating to the Status of Refugees. While excluding refugees formally recognized under this last instrument, the ICRMW provides an international status for both asylum seekers and beneficiaries of complementary protection that is not granted otherwise by the Geneva Convention. The normative and practical consequences of such cross-​cutting application are straightforward. Exploiting further the potentialities of the ICRMW calls for a more systematic and principled approach of the MWC to complement the Geneva Convention and compensate for its limited reach on asylum-​seekers and beneficiaries of complementary protection to the refugee status. Addressing the specific vulnerabilities of these persons in need of protection would provide in turn a crucial source of protection in state Parties of the ICRMW with a significant number of asylum-​seekers (including Morocco and Turkey) as well as in states parties that did not ratify the Geneva Convention relating to the Status of Refugees (such as Libya). iii. Other United Nations and regional organizations The High Commissioner for Human Rights (OHCHR) is obviously the most prominent UN agency involved in the promotion and implementation of the ICRMW. It not only provides the material support for the day-​to-​day work of the MWC, but it has also made protecting the human rights of migrants a priority of the Office’s work.180 In parallel to several other initiatives for promoting a human rights-​based approach to migration,181 the High Commissioner regularly urges states that have not yet done so to ratify the Convention.182 Recent support of the High Commissioner contrasts with the indifference prevailing during the first years after the adoption of the Convention. Despite routine calls of the General Assembly to ratify it ‘as a matter of priority’,183 the ICRMW remained for a while the ‘best-​kept secret of the United Nations’.184 It took six years after its adoption by the General Assembly for the Office of the High Commissioner to produce a booklet publicizing the text of this core human rights instrument. Furthermore, it was only in 2005 that an internal task force on migration was created at the Office. The late ownership within the UN and the correlative lack of awareness of the Convention partially 180 High Commissioner’s Strategic Management Plan 2010–​2011, OHCHR, 2010, at 30–​3. 181 See, eg, Study of the Office of the United Nations High Commissioner for Human Rights on Challenges and Best Practices in the Implementation of the International Framework for the Protection of the Rights of the Child in the Context of Migration, A/​HRC/​15/​29 (5 July 2010); OHCHR, Migration and Development:  a Human Rights Approach, undated, available at:  http://​www2.ohchr.org/​english/​bodies/​cmw/​docs/​HLMigration/​ MigrationDevelopmentHC%27spaper.pdf. 182 See for instance the High Commissioner’s statement to the 99th Session of the IOM Council, 1 December 2010, at 8, available at:  http://​www.ohchr.org/​Documents/​Issues/​MHR/​HC_​Statement_​99SessionIOMCouncil. pdf; Address by Ms Navi Pillay UN High Commissioner for Human Rights at the Fourth Global Forum on Migration and Development, Puerto Vallarta, Mexico, 10 November 2010, available at: http://​www.ohchr.org/​en/​ NewsEvents/​Pages/​DisplayNews.aspx?NewsID=10521&LangID=E. 183 See eg GA Res 45/​158 (18 December 1990), para 3; GA Res 60/​169 (7 March 2006), para 7; GA Res 62/​156 (7 March 2008), para 4; GA Res 63/​184 (17 March 2009), para 3. 184 Oral statement at the founding meeting of the International Migrants Rights Watch Committee during the UN International Conference on Population and Development, Cairo, 1994, quoted in: M Grange and M D’Auchamp, ‘Role of Civil Society in Campaigning for and Using the ICRMW’, in Cholewinski, de Guchteneire, and Pécoud (eds), at 76.

634  Vincent Chetail explain the long time period before it finally entered into force, as well as the recurring misunderstandings among non-​states parties on its exact content and implications. Against this unfavourable background, the MWC has a special responsibility to promote ratification of the Convention, the legitimacy of its supervisory work being largely dependent upon the number of states parties to its founding instrument. Although the Committee could be arguably more proactive on this crucial issue, its very existence represents a unique forum for gathering a broad range of stakeholders and mainstreaming the protection of migrant workers. Besides UNHCR, the other UN agencies that occasionally attend sessions of the Committee and provide information are the United Nations Educational, Scientific and Cultural Organization (UNESCO), the United Nations Children’s Fund (UNICEF), the United Nations Population Fund, the World Bank and the United Nations Development Programme.185 However, the substantial number of stakeholders actually participating in the work of the Committee does not mean that all concerned international organizations are involved. A more inclusive approach would be desirable for the purpose of promoting awareness of the Convention. In particular, a closer cooperation with the Global Migration Group established by the Secretary-​General in 2006 would improve the prospect of ratification of the ICRMW and its more systematic use within the UN system.186 Among the sixteen member agencies of the Global Migration Group, the United Nations Office on Drugs and Crime would be an important partner for further cooperation with the Committee. This agency is the guardian of the UN Convention against Transnational Organised Crime and its additional Protocols to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children and against the Smuggling of Migrants by Land, Sea and Air. Nonetheless the MWC frequently refers to the two above mentioned Protocols and even calls for their ratification by reported states which have not yet done so after stressing ‘the importance of the Protocols to the effective implementation of the provisions of the [Migrant Workers] Convention’.187 Another area of improvement relates to the cooperation between the Committee and regional intergovernmental organizations. Although the possibility of inviting regional organizations was expressly acknowledged during the drafting of the Convention,188 they have rarely been invited to participate in the work of the Committee. This is regrettable, for states parties to the ICRMW are members of several regional organizations which have adopted specific standards on migrant workers (including the African

185 Among these various agencies, UNESCO has played a particularly active role in the ratification campaign of the ICRMW by commissioning studies and field reports on the obstacles to its ratification. 186 This is plainly in line with the terms of references of the Global Migration Group. This inter-​agency group, meeting at the level of heads of agencies, ‘aims to promote the wider application of all relevant international and regional instruments and norms relating to migration and to provide leadership for the improvement of the overall effectiveness and coherence of normative and operational response by the United Nations system and the international community to the opportunities and challenges presented by international migration’. Global Migration Group, Terms of Reference, available at:  http://​www.globalmigrationgroup.org/​uploads/​documents/​Final%20 GMG%20Terms%20of%20Reference_​prioritised.pdf. 187 See for instance:  Concluding Observations:  Sri Lanka (19 October 2009), para 20; Concluding Observations: Syria (2 May 2008), para 16. 188 Report of the Open-​Ended Working Group (14 June 1984), para 91, p 26.

The Committee on the Protection of Migrant Workers  635 Union,189 the Association of Southeast Asian Nations,190 the Council of Europe,191 and the Organization of American States).192 A more inclusive approach by the Committee would be highly recommended for the purpose of promoting a coherent legal framework and avoiding conflicting interpretations in the application of the relevant international and regional standards.

(c)  Relationships with other treaty bodies The same need for ensuring a consistent interpretation between the ICRMW and the relevant UN treaties presupposes a close interaction with the other treaty bodies. Monitoring bodies of the core UN treaties have played an important role in advancing the protection of migrant workers within their respective mandates and instruments.193 Their general comments not only restate the applicability of human rights to non-​citizens, but also devote particular attention to migrant workers.194 Furthermore, concluding observations adopted by the other treaty bodies also frequently address the rights of migrant workers as inferred from their relevant instruments. While the HRC is less systematic than the others,195 the Committee on Economic, Social and Cultural Rights (CESCR),196 the 189 The Migration Policy Framework for Africa, African Union, Executive Council, 9th Ordinary Session, 25–​29 June 2006, EX.CL/​276 (IX). 190 ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, 12th ASEAN Summit, Cebu, The Philippines, 13 January 2007. 191 The European Convention on the legal Status of Migrant Workers, 24 November 1977, ETS N° 93. 192 Inter-​American Program for the Promotion and Protection of the Human Rights of Migrants, Including Migrant Workers and Their Families, AG/​RES. 2141 (XXXV-​O/​05) (7 June 2005). 193 D Weissbrodt and J Rhodes, ‘UN Treaty Bodies and Migrant Workers’ in V Chetail and C Bauloz (eds), Research Handbook on International Law and Migration (Edward Elgar Publishing, 2014) 303–​28. See, however, I Slinckx, ‘Migrants’ Rights in UN Human Rights Conventions’, in Cholewinski, de Guchteneire, and Pécoud (eds), at 143–​5 and 148. 194 Besides the General Recommendation No 26 on Women Migrant Workers already mentioned before, see: HRC, General Comment No 23, The rights of minorities, CCPR/​C/​21/​Rev.1/​Add.5 (8 April 1994), para 5(2); HRC, General Comment No 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/​C/​ 21/​Rev.1/​Add. 13 (26 May 2004), para 10; HRC, General Comment No 32, Right to Equality Before Courts and Tribunals and to a Fair Trial, CCPR/​C/​GC/​32 (23 August 2007), para 9; CESCR, General Comment No 13, The Right to Education, E/​C.12/​1999/​10 (8 December 1999), para 16; CESCR, General Comment No 15, The Right to Water, E/​C.12/​2002/​11 (20 January 2003), para 16(f); CESCR, General Comment No 18, The Right to Work, E/​C.12/​GC/​ 18 (6 February 2006), paras 18 and 23; CESCR, General Comment No 19, The Right to Social Security, E/​C.12/​GC/​ 19 (4 February 2008), paras 36 and 56; CESCR, General Comment No 20, Non-​Discrimination in Economic, Social and Cultural Rights, E/​C.12/​GC/​20 (2 July 2009), para 30; CERD, General Recommendation N° 30: Discrimination Against Non-​Citizens, 10/​01/​2004 (1 October 2004), paras 8 and 34; CERD, General Recommendation No 25, Gender Related Dimensions of Racial Discrimination, 20 March 2000, HRI/​GEN/​1/​Rev.9 (Vol. II) (27 May 2008), p 287, para 2; CRC, General Comment No 11, Indigenous Children and their Rights under the Convention, 2008, CRC/​ C/​GC/​11 (12 February 2009), para 51; CEDAW, General Recommendation No 27, Older Women and Protection of their Human Rights, CEDAW/​C/​GC/​27 (16 December 2010), paras 18 and 50; CEDAW, General Recommendation No 28, The Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/​C/​GC/​28 (16 December 2010), para 12. 195 See mainly the following concluding observations of the HRC: Norway, CCPR/​C/​70/​Add.27 (4 November 1993), para 4; Slovenia, A/​49/​40 (21 September 1994), paras 12-​13; Italy, A/​49/​40 (21 September 1994), para 2; HRC, Kuwait, CCPR/​C/​KWT/​CO/​2 (18 November 2011), para 18. 196 See the following concluding observations of the CESCR: Kazakhstan, E/​C.12/​KAZ/​CO/​1 (1 July 2010), paras 20 and 27; United Kingdom, E/​C.12/​GBR/​CO/​5 (12 June. 2009), para 22; Cyprus, E/​C.12/​CYP/​CO/​5 (12 June 2009), paras 14-​15, 18, and 21-​22; Canada, E/​C.12/​CAN/​CO/​4 and E/​C.12/​CAN/​CO/​5 (22 May 2006), paras 22 and 49; China, E/​C.12/​1/​Add.107 (13 May 2005), paras 24, 53, 89, 114, 116, 124, and 126; Norway, E/​C.12/​ 1/​Add.109 (23 June 2005), paras 10–​11 and 27-​29; Italy, E/​C.12/​1/​Add.103 (14 December 2004), paras 17 and

636  Vincent Chetail CERD,197 the CEDAW,198 and the CRC199 regularly insist on the need to protect migrant workers under their respective instruments. This proves to be particularly crucial for states which have not ratified the ICRMW. Nonetheless the critical role played by the general human rights instruments does not necessarily undermine the need for a more specific treaty devoted to migrant workers. Monitoring bodies are aware of such a need and they regularly call for its ratification.200 The picture is, however, more nuanced from the side of the MWC. Although it has referred to the general comments of other treaty bodies in its own general comments, much remains to be done to enhance its interaction with the other monitoring bodies. Its use of the concluding observations and general comments adopted by the other treaty bodies has so far been quite selective: between May 2006 and December 2015, it has referred to them in only seven concluding observations on the Philippines,201 Senegal,202 Mali,203 Burkina Faso,204 Mexico,205 Paraguay,206 and Sri Lanka.207 A more

36; Russian Federation, E/​C.12/​1/​Add.94 (12 December 2003), para 17; Poland, E/​C.12/​1/​Add.82 (19 December 2002), paras 15 and 37; Dominican Republic, E/​C.12/​1/​Add.16 (12 December 1997), para 34. 197 See in particular the following concluding observations of the CERD: China, CERD/​C/​CHN/​CO/​10-​13 (15 September 2009), at paras 30 and 33; Nigeria, CERD/​C/​NGA/​CO/​18 (27 March 2007), para 12; Ireland, CERD/​C/​ IRL/​CO/​2 (14 April 2005), paras 15, 23, and 25; Bahrain, CERD/​C/​BHR/​CO/​7 (14 April 2005), para 14; Lebanon, CERD/​C/​64/​CO/​3 (28 April 2004), para 10; Libya, CERD/​C/​64/​CO/​4 (10 May 2004), paras 7 and 10-​11; Republic of Korea, CERD/​C/​63/​CO/​9 (10 December 2003), paras 4 and 10; Saudi Arabia, CERD/​C/​62/​CO/​8 (21 March 2003), paras 16-​20; Chile, CERD/​C/​304/​Add.81 (12 April 2001), paras 12 and 17; Spain, A/​49/​18 (8 October 1994), paras 479-​511, esp paras 484, 499 and 503; Czech Republic, CERD/​C/​CZE/​CO/​8-​9 (2 September 2011), para 20; Maldives, CERD/​C/​MDV/​CO/​5-​12 (14 September 2011), para 11; Iceland, CERD/​C/​ISL/​CO/​19-​20 (25 March 2010), para 18; Kazakhstan, CERD/​C/​KAZ/​CO/​4-​5 (6 April 2010), paras 16 and 22. 198 See, for instance, Albania, CEDAW/​C/​ALB/​CO/​3 (16 September 2010), paras 19 and 40-​41; Australia, CEDAW/​C/​AUS/​CO/​7 (30 July 2010), paras 44-​45; Egypt, CEDAW/​C/​EGY/​CO/​7 (5 February 2010), paras 35-​6; United Arab Emirates, CEDAW/​C/​ARE/​CO/​1 (5 February 2010), paras 10, 26-​7 and 36-​7(a); Bahrain, CEDAW/​ C/​BHR/​CO/​2 (14 November. 2008), paras 34–​5; Netherlands, CEDAW/​C/​NLD/​CO/​4 (2 February 2007), paras 15-​19, 21, and 27-​8; Philippines, CEDAW/​C/​PHI/​CO/​6 (25 August 2006), paras 21–​22; Kuwait, A/​59/​38 (18 March 2004), paras 76-​7 and 79; Costa Rica, A/​58/​38 (18 July 2003), paras 62-​3; China, A/​54/​38 (5 February 1999), paras  326-​8. 199 See in particular the following concluding observations of the CRC: Honduras, CRC/​C/​HND/​CO/​3 (3 May 2007), paras 70-​1; Chile, CRC/​C/​CHL/​CO/​3 (23 April 2007), paras 29 and 63; Republic of Oman, CRC/​C/​OMN/​ CO/​2 (29 September 2006), paras 24–​5 and 59–​60; Panama, CRC/​C/​15/​Add.233 (30 June 2004), paras 24–​25; Japan, CRC/​15/​Add.231 (26 February 2004), paras 24–​5; Republic of Korea, CRC/​C/​15/​Add.197 (18 March 2003), paras 31–​2 and 58–​9; Spain, CRC/​C/​15/​Add.185 (13 June 2002), para 27; Demark, CRC/​C/​15/​Add.151 (17 July 2001), paras 26–​7; Palau, CRC/​C/​15/​Add.149 (21 February 2001), para 32; Kuwait, CRC/​C/​15/​Add.88 (5 June 1998), para 18; Iceland, CRC/​C/​ISL/​CO/​3-​4 (6 October 2011), paras 36–​7; Italy, CRC/​C/​ITA/​CO/​3-​4 (31 October 2011), para 62; Republic of Korea, CRC/​C/​KOR/​CO/​3-​4 (6 October 2011), paras 36 and 68–​9; Costa Rica, CRC/​C/​ CRI/​CO/​4 (17 June 2011), paras 10 and 29–​30; Japan, CRC/​C/​JPN/​CO/​3 (20 June 2010), paras 37 and 45. 200 See in particular the following concluding observations: CERD, Lebanon, A/​59/​18 (2004) 18, para 83; CERD, Spain, A/​59/​18 (2004) 32, para 171; CRED, Portugal, A/​59/​18 (2004) 66, para 371; CESCR, Republic of Moldova, E/​ 2004/​22 (2003) 49, para 326; CESCR, Russian Federation, E/​2004/​22 (2003) 64, para 487; CESCR, Kuwait, E/​2005/​ 22 (2004) 29, para 205 ; CESCR, Italy, E/​2005/​22 (2004) 54, para 447; CRC, Israel, CRC/​C/​121 (2002) 131, para 577; CRC, Republic of Korea, CRC/​124 (2003) 24, para 137; CEDAW, France, CEDAW/​C/​FRA/​CO/​6 (8 April 2008), para 44; CEDAW, Mauritius, CEDAW/​C/​MUS/​CO/​6-​7 (8 November 2011), para 39; CEDAW, Australia, CEDAW/​ C/​AUS/​CO/​7 (30 July 2010), para 49; CEDAW, United Arab Emirates, CEDAW/​C/​ARE/​CO/​1 (5 February 2010), para 53; CEDAW, Bahrain, CEDAW/​C/​BHR/​CO/​2 (14 November 2008), para 45. 201 Concluding Observations: The Philippines (22 May 2009), pp 5 and 10, paras 27 and 48. 202 Concluding Observations: Senegal (10 December 2010), p 4, para 18. 203 Concluding Observations: Mali, CMW/​C/​MLI/​CO/​1 (31 May 2006), p 5, para 22. 204 Concluding Observations: Burkina Faso, CMW/​C/​BFA/​CO/​1 (8 October 2013), p 4, para 23. 205 Concluding Observations: Mexico (20 December 2006), p 8, para 41. 206 Concluding Observations: Paraguay, CMW/​C/​PRY/​CO/​1 (16 May 2012), p 6, para 44. 207 Concluding Observations: Sri Lanka (19 October 2009), p 7, para 27.

The Committee on the Protection of Migrant Workers  637 systematic approach by the MWC is thus in order. This is further necessary if the Committee has the ambition to be a catalyst for promoting a comprehensive and authoritative interpretation of its Convention in line with the other applicable human rights instruments. The ICRMW cannot be interpreted in splendid isolation from the other—​and much more ratified—​general human rights treaties which constitute a crucial source of legal norms for migrant workers and members of their families. Echoing to such a concern, the need to avoid diverging interpretations between treaty bodies and enhancing the efficiency of the UN supervisory mechanisms has been at the heart of the ongoing reform initiated by the Secretary-​General in 2002.208 However the proposal to establish a single treaty body209 was supported neither by states nor existing committees. The position paper adopted by the MWC in April 2007 largely replicates the position of its counterparts. It considers that the High Commissioner’s proposal ‘is [not] feasible at this point’, while admitting that a unified standing treaty body ‘may constitute a long-​term objective’.210 The main—​and sensible—​concern of the Committee is that ‘the establishment of a unified standing treaty body replacing a specialized body monitoring the Convention on Migrant Workers may lead to a lack of specificity attention to the rights of migrant workers’.211 Beyond the loss of specificity of the ICRMW, it is also ‘concerned about losing its own identity, especially when it has only been in existence for few years and is still striving to develop that specific identity’212—​a much less relevant argument given the issues at stake in this global reform.

(d)  Relationships with UN Special Procedures and other related mechanisms Special procedures established by the Human Rights Council represent a complementary tool for promoting the ICRMW and assisting the Committee in its supervisory tasks.213 While much remains to be done to ensure a more coherent and principled interaction between treaty bodies, the MWC has developed good working relationships with the Special Rapporteur on the human rights of migrants. Even though his mandate covers all countries (irrespective of whether a state has ratified the ICRMW), the Special Rapporteur has constantly underlined the centrality of this last Convention 208 Strengthening of the United Nations: An Agenda for Further Change, Report of the Secretary-​General, A/​57/​ 387 (9 September 2002), 12–​13. 209 Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body, HRI/​MC/​2006/​2 (22 March 2006). 210 Statement by the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families Concerning the Idea of Creating a Single Human Rights Treaty Body, Annex IV to the Report of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, 5th Session (30 October–​3 November 2006), 6th Session (23–​7 April 2007), A/​62/​48 (2007), para 5. 211 Ibid, para 4. 212 Ibid. 213 For an overview of the special procedures in the field of migration, see T Lesser, ‘The Role of United Nations Special Procedures in Protecting the Human Rights of Migrants’ (2010) 28(4) Refugee Survey Quarterly 139–​164; E Decaux ‘Droits des travailleurs migrants et droit international des droits de l’homme’ (2008) 20 Migrations Société 185–​98.

638  Vincent Chetail as ‘a fundamental element for the protection of the human rights of migrants since it contains a broad vision that includes the migrant’s family and the situation of women and children, and explicitly recognises the rights of undocumented migrants. Another positive element of the Convention is its broad vision of rights; although it is intended to regulate the rights of workers, it is not limited to the employment context but regulates the entire spectrum of workers’ rights’.214 Because of its importance to ensuring the human rights of migrants, the Special Rapporteur considers ‘a wider ratification of the Convention to be a development of central importance to his mandate’.215 Country visits have been the opportunity to urge the Governments of the US,216 South Africa,217 Japan,218 the United Kingdom,219 Romania,220 Indonesia,221 the Republic of Korea,222 Peru,223 Italy,224 Iran,225 Spain,226 Malta,227 Greece,228 Tunisia,229 Qatar,230 and Canada231 to ratify it. Regarding states parties to the ICRMW, the Special Rapporteur also gives special attention to the concluding observations of the MWC in formulating his own recommendations.232 214 Report on the Human Rights of Migrants submitted by the Special Rapporteur of the Commission on Human Rights, A/​57/​292 (9 August 2002), para 32. 215 Report of the Special Rapporteur on the Human Rights of Migrants, E/​CN.4/​2006/​73 (30 December 2005), para 34. 216 Report of the Special Rapporteur on the Human Rights of Migrants: Mission to the United States of America, A/​ HRC/​7/​12/​Add.2 (5 March 2008), para 126. 217 Report of the Special Rapporteur on the Human Rights of Migrants, Addendum, Mission to South Africa, A/​ HRC/​17/​33/​Add.4 (2 May 2011), para 74(a). 218 Report of the Special Rapporteur on the Human Rights of Migrants, Addendum, Mission to Japan, A/​HRC/​17/​ 33/​Add.3 (21 March 2011), para 78(a)(i). 219 Report of the Special Rapporteur on the Human Rights of Migrants, Addendum, Mission to the United Kingdom of Great Britain and Northern Ireland, A/​HRC/​14/​30/​Add.3 (16 March 2010), para 74(a). 220 Report of the Special Rapporteur on the Human Rights of Migrants, Addendum, Mission to Romania, A/​HRC/​ 14/​30/​Add.2 (17 March 2010), para 106(a). 221 Report of the Special Rapporteur on the Human Rights of Migrants, Addendum, Mission to Indonesia, A/​HRC/​ 4/​24/​Add.3 (2 March 2007), para 66. 222 Report of the Special Rapporteur on the Human Rights of Migrants, Mission to the Republic of Korea, A/​HRC/​4/​ 24/​Add.2 (14 March 2007), para 57. 223 Report of the Special Rapporteur on the Human Rights of Migrants, Addendum, Visit to Peru, E/​CN.4/​2005/​85/​ Add.4 (13 January 2005), para 71. It ratified it a few months later in September 2005. 224 Report Submitted by Ms Gabriela Rodríguez Pisarro, Special Rapporteur, in Conformity with Resolution 2004/​ 53 of the Commission on Human Rights, Addendum, Visit to Italy, E/​CN.4/​2005/​85/​Add.3 (15 November 2004), para 95; Report of the Special Rapporteur on the Human Rights of Migrants: Mission to Italy, A/​HRC/​23/​46/​Add.3 (30 April 2013), para 94. 225 Report of the Special Rapporteur on the Human Rights of Migrants, Addendum, Visit to the Islamic Republic of Iran, E/​CN.4/​2005/​85/​Add.2 (23 December 2004), para 68. 226 Report submitted by Ms Gabriela Rodríguez Pisarro, Special Rapporteur, in Conformity with Resolution 2003/​ 46 of the Commission on Human Rights, Addendum, Visit to Spain, E/​CN.4/​2004/​76/​Add.2 (14 January 2004), para 86(a). 227 Report of the Special Rapporteur on the Human Rights of Migrants: Mission to Malta, A/​HRC/​29/​36/​Add.3 (12 May 2015), para 108(c). 228 Report of the Special Rapporteur on the Human Rights of Migrants: Mission to Greece, A/​HRC/​23/​46/​Add.4 (18 April 2013), para 90. 229 Report of the Special Rapporteur on the Human Rights of Migrants: Mission to Tunisia, A/​HRC/​23/​46/​Add.1 (3 May 2013), para 86(d). 230 Report of the Special Rapporteur on the Human Rights of Migrants: Mission to Qatar, A/​HRC/​26/​35/​Add.1 (23 April 2014), para 84. 231 Report Prepared by Ms Gabriela Rodríguez Pisarro, Special Rapporteur on the Human Rights of Migrants, Submitted Pursuant to Resolution 1999/​44 of the Commission on Human Rights, Addendum, Visit to Canada, E/​ CN.4/​2001/​83/​Add.1 (21 December 2000), para 88. 232 Report of the Special Rapporteur on the Human Rights of Migrants: Mission to Mexico, A/​HRC/​11/​7/​Add.2 (24 March 2009), paras 16–​21; Report of the Special Rapporteur on the Human Rights of Migrants: Mission to Sri Lanka, A/​HRC/​29/​36/​Add.1 (2 April 2015), para 78(1)(c); Report of the Special Rapporteur on the Human Rights of

The Committee on the Protection of Migrant Workers  639 Thus, the Special Rapporteur on the human rights of migrants has been instrumental in engaging in a continuing dialogue with states and mainstreaming the protection of the human rights of migrants, by inter alia carrying out the follow-​up of the Committee’s observations and promoting the Convention’s awareness among states which have not ratified it. This close interaction between the Special Rapporteur and the MWC represents a model of working methods which should be generalized to the other special procedures. Although virtually all special procedures are concerned with the situation of migrant workers, few of them pay specific attention to this particularly vulnerable group of persons in carrying out their respective mandates.233 Migrants: Mission to Turkey, A/​HRC/​23/​46/​Add.2 (17 April 2013), paras 82–​3; Report of the Special Rapporteur on the Human Rights of Migrants: Mission to Albania, A/​HRC/​20/​24/​Add.1 (10 April 2012), para 70(b). 233 Although my estimates do not pretend to be exhaustive, out of the other thirty-​two thematic mandates, only fifteen of them have explicitly referred to migrant workers in their reports: ‘Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living’, Migration and the Right to Adequate Housing, A/​65/​261 (9 August 2011), paras 4, 8, 12, 14–​17, 19–​20, 31, 35, 37, 41, 43, 49, 64, 72, 76; Report of the Independent Expert on Minority Issues, A/​HRC/​13/​23 (7 January 2010), para 40, p 11; Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Doudou Diène, and the Independent Expert on Minority Issues, Addendum, Mission to Dominican Republic, A/​ HRC/​7/​19/​Add.5, A/​HRC/​7/​23/​Add.3 (18 March 2008), paras 10, 65, and 128; Report Submitted by the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography, Addendum, Mission to Albania, E/​CN.4/​2006/​67/​Add.2 (27 March 2006), paras 63 and 119(a); Report of the Special Rapporteur on Freedom of Religion or Belief, Addendum, Mission to the Maldives, A/​HRC/​4/​21/​Add.3 (7 February 2007), paras 6, 14, 31, 46–​8, 68–​9; Report of the Special Rapporteur on the Right to Freedom of Opinion and Expression, Addendum, Mission to Ukraine, A/​HRC/​7/​14/​Add.2 (28 February. 2008), paras 25, 69, and 74; Report of the Special Rapporteur on the Human Rights Aspects of the Victims of Trafficking in Persons, especially Women and Children, Addendum, Mission to Lebanon, E/​CN.4/​2006/​62/​Add.3 (20 February 2006), paras 24–​50, 77–​8, 80, 85–​7, 101–​3; Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, Addendum, Mission to Bahrain, Oman and Qatar, A/​HRC/​4/​23/​Add.2 (25 April 2007), paras 4, 5, 7, 9, 10–​12, 19–​20, 25, 53–​4, 58, 60, 62, 64, 65, 67–​8, 81, 86, 89, 91–​2, 95; Report of the Special Rapporteur on Trafficking in Persons, especially Women and Children, Addendum, Mission to Australia, A/​HRC/​20/​18/​Add.1 (18 May 2012), paras 10, 48, 65, 69, and 85(a); Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, Addendum, Mission to Saudi Arabia, A/​HRC/​11/​6/​Add.3 (14 April 2009), paras 56–​65, 94, 95(d) and 96; Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice, Addendum, Mission to Morocco, A/​HRC/​20/​28/​Add.1 (19 June 2012), paras 13, 26, and 89(d); Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, Addendum, Mission to Somalia, A/​HRC/​20/​16/​Add.3 (14 May 2012), para 84; Report of the Working Group of Experts on People of African Descent, Addendum, Visit to Belgium, E/​CN.4/​2006/​19/​Add.1 (9 February 2006), paras 32 and 71; Report of the Working Group of Experts on People of African Descent, E/​CN.4/​2005/​21 (26 January 2005); Report of the Working Group of Experts on People of African Descent on its twelfth session, Addendum Mission to Panama, A/​HRC/​24/​52/​Add.2 (21 August 2013), paras 5, 9, 58, 95, and 105(x); Trafficking in Women, Women’s Migration and Violence Against Women, E/​CN.4/​2000/​68 (29 February 2000), paras 20, 50, 62, 89, 97, 122; Report of the Special Rapporteur on Contemporary Forms of Slavery, Including its Causes and Consequences, Addendum, Mission to Brazil, A/​HRC/​15/​20/​Add.4 (30 August 2010), paras 51, 77, 82, and 117; Report of the Special Rapporteur on Contemporary Forms of Slavery, including its Causes and Consequences, Addendum, Mission to Romania, A/​HRC/​18/​30/​Add.1 (30 June 2011), paras 2, 10, 13, 53, 55, 66, and 89–​91; Report of the Special Rapporteur on Contemporary Forms of Slavery, including its Causes and Consequences, Addendum, Mission to Ecuador, A/​HRC/​15/​20/​Add.3 (5 July 2010), para 95; The Right to Education of Migrants, Refugees and Asylum-​ Seekers, Report of the Special Rapporteur on the Right to Education, Vernor Muñoz, A/​HRC/​14/​25 (16 April 2010), paras 21, 27, and 29; Report of the Special Rapporteur on the Right to Education, Addendum, Mission to Malaysia, A/​HRC/​11/​8/​Add.2 (20 March 2009), paras 36–​8 and 87; Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Addendum, Mission to Singapore, A/​HRC/​ 17/​40/​Add.2 (25 March 2011), paras 49–​58 and 72–​4; Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Addendum, Mission to the Russian Federation, A/​HRC/​4/​19/​Add.3 (30 May 2007), paras 9 and 89; Report of the Special Rapporteur on contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Addendum, Mission to Japan, E/​CN.4/​2006/​ 16/​Add.2 (24 January 2006), paras 9, 14, 60–​7 and 72; Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, Addendum, Mission to Hungary, A/​HRC/​20/​ 33/​Add.1 (23 April 2012), paras 9 and 75; Report of the Independent Expert on the Question of Human Rights and Extreme Poverty, Addendum, Mission to Viet Nam, A/​HRC/​17/​34/​Add.1 (9 May 2011), paras 14 and 101(a); Report

640  Vincent Chetail In parallel with the special procedures, the Universal Periodic Review represents another forum for promoting the ICRMW and its implementation by states parties. Despite its particularly broad coverage, this state-​driven process established in 2006 for reviewing the human rights records of all UN member states on a four-​year basis has raised issues concerning the rights of migrants. Yet this has not been done on a systematic basis and remains quite marginal in terms of number: out of 46,584 recommendations in twenty-​ two sessions, 2,093 recommendations focused on migrants (that is 4.5 per cent), including only 421 recommendations calling for the ratification of the ICRMW.234

(e)  Non-​governmental organizations and national human rights institutions Non-​ governmental organizations have a long history in the promotion of the ICRMW.235 In stark contrast to the lack of interest which prevailed in the UN during almost a decade after its adoption, NGOs have played a pioneer role for the twofold purpose of disseminating information on the Convention and advocating its ratification. In order to compensate for the long absence of a UN strategy, NGOs were early convinced by the need for a coordinated and high profile structure. Alongside other previous initiatives,236 the International Migrants Rights Watch Committee was established in 1994 during the Cairo International Conference on Population and Development with promotion of the Convention as its main purpose. NGOs’ efforts to promote the Convention gained a new impetus in 1998 when the International Migrants Rights Watch Committee convened the International Steering Committee of the Campaign for the Ratification of the Migrant Workers Convention.237 of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable standard of Physical and Mental Health, Addendum, Mission to Tajikistan, A/​HRC/​23/​41/​Add.2 (2 May 2013), paras 7, 22, 25, 28–​9 and 50(f); Report of the Special Rapporteur on the Right to Food, Addendum Mission to Mexico, A/​HRC/​19/​59/​Add.2 (17 January 2012), paras 29 and 60(c). These special procedures also call for the ratification of the ICRMW in their respective reports. In addition to the reports mentioned above, see also: Report of the Working Group on Arbitrary Detention, Addendum, Mission to Malaysia, A/​HRC/​16/​47/​Add.2 (8 February 2011), para 107; Report of the Special Rapporteur on extreme poverty and human rights, Addendum, Mission to Namibia, A/​HRC/​23/​36/​Add.1 (17 May 2013), para 91(a). 234 These figures are based on the database available at http://​www.upr-​info.org/​database/​statistics/​. 235 For a thorough overview on the role of NGOs, see Grange and D’Auchamp, at 70–​99; G Gencianos, ‘International Civil Society Cooperation on Migrants’ Rights:  Perspectives from an NGO Network’ (2004) 6 European Journal of Migration and Law 147–​55. 236 Among the early initiatives of NGOs regarding the dissemination of the Convention, see Churches Committee for Migrants in Europe/​World Council of Churches, Proclaiming Migrant Rights: The New International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, New York, Briefing Paper N° 3, 1991; G Battistella (ed), The Human Rights of Migrant Workers: Agenda for NGOs (Scalabrini Migration Center, 1993); Migrant Forum in Asia, Ratifying the UN Convention Protecting Migrant Workers: Migrant Women Quest for Justice, Hong Kong, 1994; Scalabrini Migration Center, Rights of Migrant Workers –​A Primer on the UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Quezon, 1997). 237 In order to fill the information gap on the Convention, the NGO December 18 launched a multilingual portal in 1999: http://​www.december18.net. The name of this NGO refers to the date of the adoption of the Convention, which was proclaimed by the UN in December 2000 as International Migrants Day.

The Committee on the Protection of Migrant Workers  641 This Steering Committee is a unique network of UN and intergovernmental organisations, international trade union bodies and civil society organisations.238 Because of its innovative membership (and in particular the presence of the OHCHR, ILO, UNESCO, and later IOM), it has been instrumental in raising awareness and promoting ratification among states: while the Convention counted only nine states Parties in 1998, since then forty-​six other states have ratified it. Although the Steering Committee is not the only actor to be credited with this, it has had a decisive impact in upholding ownership within the UN and raising the visibility of the Convention among states.239 The recent increase of ratifications is also due to a plurality of other factors, including the strong support of Mexico and the Philippines, as well as the increasing awareness of the Convention as a means for protecting their nationals abroad. Given the longstanding and proactive role of NGOs in promoting the Convention, it comes as no surprise that the MWC has developed a fruitful cooperation with civil society from the outset. NGOs have organized themselves in the International Platform on the Migrant Workers Convention established in April 2005. This coalition of nineteen NGOs is aimed at facilitating and strengthening their participation in the sessions of the Committee (and in particular the involvement of local and national NGOs that would have difficulties in taking part in the activities of the MWC).240 This Platform works closely with the Committee and has been instrumental in developing NGO alternative reports on the situation in the states parties examined by the Committee. National human rights institutions are comparatively less active than NGOs, though they still contribute to the work of the Committee and to the ratification campaign. In particular, the Santa Cruz Declaration adopted in 2006 at the Eighth International Conference of National Institutions for the Promotion and Protection of Human Rights encouraged states to support the Committee and called for the ratification of the Convention and its implementation.241 More generally, both NGOs and national human rights institutions are closely involved in each step of the reporting procedure. The Committee strongly encourages states parties to engage them in the preparation of their report and expresses its 238 It is composed of thirteen members:  December 18; Fédération internationale des ligues des droits de l’Homme; Human Rights Watch; International Catholic Migration Commission; International Labour Organisation; International Organisation for Migration; International Trade Union Confederation; Migrant Forum in Asia; Migrants Rights International; Office of the High Commissioner for Human Rights; Public Services International; UNESCO; World Council of Churches (with Amnesty International as observer). 239 Among many other initiatives, the Steering Committee published a Campaigner’s Handbook in 1998 and a Guide to Ratification in 2009. See respectively:  Achieving Dignity:  Campaigner’s Handbook for the Migrants Rights Convention, Migrants Rights International, 1998; Guide on Ratification: International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, International Steering Committee of the Campaign for the Ratification of the Migrant Workers Convention, 2009. Furthermore, organizations’ members of the Steering Committee also published a broad range of promotional guides and reports. See in particular: UNESCO, United Nations Convention on Migrants’ Rights: Information Kit, 2005; OHCHR, The International Convention on Migrant Workers and its Committee:  Fact Sheet No 24(Rev.1), 2005; M Grange, Strengthening Protection of Migrant Workers and their Families with International Human Rights Treaties: A Do-​it-​yourself Kit, International Catholic Migrant Commission, 2006. 240 Some members of the Platform produced a practical guide for the purpose of facilitating the work of NGOs in 2005: December 18, A Guide for Non-​governmental Organisations on the Implementation of the UN Migrant Workers’ Convention, 2nd edn, 2006. 241 Santa Cruz Declaration, 24–​26 October 2006.

642  Vincent Chetail concerns when they are not sufficiently so involved.242 Furthermore, the Guidelines regarding the form and contents of both initial and periodic reports expressly require information as regards measures taken by the state party on the cooperation with civil society in order to promote and respect the rights contained in the Convention.243 Once the report is finalized, Article 73 paragraph 4 also obliges states parties to ‘make their reports widely available to the public in their own countries’. Then, during the examination of states’ reports, the Committee encourages NGOs to submit reports, documentation and any other information on the implementation of the Convention by the states concerned. Indeed, contrary to some other supervisory mechanisms (such as the CEDAW and the CERD), the ICRMW accords NGOs a role in the review of states’ reports. Under Article 74 paragraph 4, ‘other concerned bodies’ may submit written information to it—​just like UN agencies and intergovernmental organizations. While confirming the interpretation that prevailed during the drafting of this provision,244 the Committee has construed the term ‘other concerned bodies’ as including non-​ governmental organizations and national human rights institutions.245 NGO’s representatives can also attend as observers at the public meetings and, in April 2006, the Committee even decided that they could be heard during the session of the final examination of the report.

17.5  Conclusion Since its establishment in January 2004, the MWC has carried out very significant work. Its task remains a difficult one for three main reasons of an institutional, normative, and practical nature. First, the Committee must find a place among a broad range of actors with concurring and sometimes conflicting mandates. While states remain a particularly influential and concerned actor in this sensitive field, many other stakeholders (including international organizations and other related supervisory mechanisms) are increasingly involved in the field of labour migration. For the time being, the Committee is still struggling to make its voice heard in the surrounding cacophony. However, its very existence may constitute an opportunity to establish itself

242 See for instance: Concluding Observations: Algeria (19 May 2010), para 43, p 6. 243 Guidelines Regarding the Form and Contents of Initial Reports to be Submitted by States Parties under Article 73, para 3 (d); Guidelines for the Periodic Reports, para 3(c). 244 Report of the Open-​Ended Working Group (17 October 1988), paras 307–​10, p 59. While some delegations preferred an explicit reference to NGOs, ‘the working Group understood the words ‘other concerned bodies’ to include non-​governmental organizations in consultative status with the Economic and Social Council’: ibid, para 330, p 62. Only Germany ‘would have preferred a version of the paragraph explicitly excluding non-​governmental organisations as a source of information. He was of that opinion notwithstanding the fact that some of those organisations, particularly employers’ and workers’ organisations, could provide valuable and reliable information, because information provided by certain non-​governmental organisations, particularly those whose activities centred on the international migration of workers, were often inspired more by their partisan alignment than by their competence and objectivity and it was difficult to distinguish between such organisations’: Ibid, p 61, para 323. 245 Rules of Procedure, Rule 28.

The Committee on the Protection of Migrant Workers  643 as a forum of discussion gathering the different actors involved in the promotion of a human right-​based approach to migration. Second, the rights of migrant workers and their families are governed by a complex set of overlapping norms enshrined in numerous instruments. Such a dense normative framework requires careful and harmonized guidance in interpreting the ICRWM. The Committee should develop a more articulated and holistic approach in order to promote a cogent and authoritative interpretation. Overall, one should nevertheless not be too severe with a treaty body which has been established relatively recently. Third, the most serious difficulty encountered by the Committee is linked to the limited number of states parties to the ICRMW. The MWC could arguably be more proactive in promoting awareness and ratification of its Convention (notably among states from the Global South) and challenging the recurrent misconceptions about its legal and political implications. In particular, it is commonly believed that its ratification implies a loss of sovereignty on admission policies or encourages irregular migration. Quite the contrary is true: the Convention explicitly preserves ‘the right of each state Party to establish the criteria governing admission of migrant workers and members of their families’.246 The rights enshrined therein cautiously distinguish between documented and undocumented migrant workers, while the ICRMW further details states’ obligations ‘with a view to preventing and eliminating illegal or clandestine movements and employment of migrant workers in an irregular situation’.247 However, the Committee cannot be responsible for the poor ratification record of the treaty which is largely beyond its control. The persisting reluctance of Western countries to ratify the ICRMW is clearly the most challenging issue, especially because of the contradictory arguments advanced in order to justify not ratifying it. While their own domestic law is generally in line with the provisions of the ICRMW and would make ratification easier, the compatibility of national legislations with the Convention is precisely invoked as an excuse for non-​ratification. Besides the obvious political considerations behind such a refusal, Western states are unwilling to have their human rights record scrutinized by an independent committee of experts when it comes to migrants. Such supervision would make human rights abuses against migrants all the more visible, while providing an international arena to question their domestic policies. In the meanwhile, their refusal to ratify one of the core UN instruments puts in doubt their very legitimacy in promoting due respect for human rights. It thus creates a double standard: while eager to give lessons on human rights abroad, they reject scrutiny at home for one of the most vulnerable groups of persons. Even though the ICRMW does not contain all the solutions, its very existence recalls that migrants’ rights are human 246 Article 79 ICRMW. Article 35 restates in the same vein that the ICRMW shall not be interpreted as implying the regularization of undocumented migrant workers or member of their families. 247 Article 68 ICRMW. See also Articles 67 and 69.

644  Vincent Chetail rights. As recalled by the former High Commissioner for Human Rights, ‘human rights are not a matter of charity, nor are they a reward for obeying immigration rules. Human rights are inalienable entitlements of every human being, wherever they are and whatever their status’.248

248 Navi Pillay, UN High Commissioner for Human Rights, Equal Rights for All Migrants: A Call for Ratification of the International Convention on the Protection  of the Rights of All Migrant Workers and Members of Their Families, Lecture at the Global Migration Centre of the Graduate Institute of International and Development Studies, Geneva, 14 December 2011, available at:  http://​www.ohchr.org/​en/​NewsEvents/​Pages/​DisplayNews. aspx?NewsID=11723&LangID=E.

18 Reform of the UN Human Rights Treaty Body System Suzanne Egan

18.1  Introduction The ‘UN human rights treaty body system’ is at this stage a term of art used to describe the ten treaty bodies or committees of independent experts who monitor compliance by states of their obligations under nine core human rights treaties and their associated protocols.1 Each of these treaty bodies has a specific field of expertise in line with the field of rights covered in their parent treaty; and each has its own legal competence to interpret the text of the treaty and to supervise state compliance principally by means of state-​reporting, investigative and complaint procedures.2 State-​reporting procedures require the States parties to the relevant treaty to self-​report on a periodic basis to the relevant treaty body and to engage in a ‘constructive dialogue’ with the treaty body in Geneva on the measures it has taken to implement the treaty obligations in its jurisdiction. Individual complaint mechanisms allow individuals in States parties to these mechanisms to petition a treaty body about a breach of their rights under the terms of the particular treaty; while the investigative procedures of certain of the treaties allow particular treaty bodies to conduct inquiries and visits to the States parties to investigate events on the ground. The treaty bodies are in turn empowered by the treaties to issue ‘concluding observations’ or ‘views’ to the States parties at the conclusion of the relevant procedure.3 While they carry out these various functions on a part-​time basis, independently of each other, the collective activity of the treaty bodies now spans a wide spectrum of human rights issues including civil and political rights, economic, social and cultural rights, racial and gender discrimination, torture, disappearances, as well as the rights of children, migrants, and disabled persons.4 1 See generally, S Egan, The UN Human Rights Treaty System: Law and Procedure (Bloomsbury, 2012); and G Ulfstein (ed), UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge University Press, 2012). 2 Treaty bodies also typically issue ‘general comments’ addressed to all states parties from time to time on the appropriate interpretation to be given to particular procedural and substantive matters in the treaty concerned: see, generally, H Keller and L Grover, ‘General Comments of the Human Rights Committee and their Legitimacy’ in Ulfstein, ibid, 116. 3 For a concise overview of all of the treaty body functions, see N Rodley, ‘The Role and Impact of Treaty Bodies’ in D Shelton (ed), The Oxford Handbook of International Human Rights Law (OUP, 2013), 621, 626–​38; and S Egan, ‘The UN Human Rights Treaty System’ in S Egan (ed), International Human Rights: Perspectives from Ireland (Bloomsbury, 2015) 55, 62–​72. 4 A full inventory of each of the treaty bodies that currently comprise the treaty system is available on the website of the OHCHR at http://​www.ohchr.org/​EN/​HRBodies/​Pages/​TreatyBodies.aspx.

646  Suzanne Egan Given the similarity of their functional mandates and their ever-​ increasing workloads, it is easy to see why the treaty bodies have come to be conceptualized over time as a ‘system’ and as a central pillar of the UN’s institutional human rights architecture. However, behind this ostensibly organized structure lies the reality that the treaty system was never a planned enterprise, but rather is a system that has evolved haphazardly over time. As each treaty body emerged with similar functions, each drew up their own rules of procedure, fashioned their own parallel (but not identical) working methods and largely operated in isolation from each other. Moreover, massive problems have accumulated over the years in the functioning of the treaty body system as a whole.5 Indeed, it is a system that is routinely described as operating in ‘crisis’ mode, dogged by chronic under-​resourcing and a gamut of ‘institutional pathologies’6 that have gradually eroded the effectiveness of its individual components over time. The depth of the problem can readily be appreciated by highlighting some of the more startling statistics. Since 2004, the number of treaty bodies has increased from six to ten; the number of experts has mushroomed from 97 to 172; while the number of treaty ratifications increased from 927 in 2000,7 to 2192 in 20138 and by a further 5 per cent from 2013 to 2015.9 Negotiations are far advanced in regard to two further treaties—​ one on the human rights obligations of transnational corporations and other business enterprises and the other on the rights of ‘the ageing’—​each of which looks set to involve the establishment of further dedicated treaty bodies.10 While these developments might be viewed as the positive fruits of civil society campaign initiatives, the benefits of this expansion of the treaty body system are largely offset by the systematic failure of states to fund it with correspondingly necessary resources. The present chapter focuses on initiatives mounted over the years by the UN to reform the operation of the treaty body system to respond to these persistent difficulties. These have proceeded through a series of distinct initiatives which include the expert reports produced by Philip Alston between 1989–​1997;11 the ‘Unified Standing Treaty Body’ proposal championed 5 The extent of the challenges facing the system have been documented in numerous studies and reviews over the years. See, for example, P Alston and J Crawford (eds), The Future of UN Human Rights Treaty Monitoring (Cambridge University Press, 2000) and A Bayefsky (ed), The UN Human Rights Treaty System in the 21st Century (Kluwer Law International, 2000). See more recently the facts and figures presented in ‘Strengthening the United Nations Human Rights Treaty Body System: A Report by the United Nations High Commissioner for Human Rights’ (26 June 2012) UN Doc A/​66/​860 section 2.3, available at: http://​www.ohchr.org/​EN/​HRBodies/​HRTD/​ Pages/​TBStrengthening.aspx (hereinafter UNHCHR report). 6 A Lamer, ‘Enforcing International Human Rights Law: The Treaty System in the 21st Century’ in Bayefsky, The UN Human Rights Treaty System in the 21st Century, above n 5, 305, 306–​7. 7 UNHCHR report, above n 5, 17–​18. 8 ‘Report of the Secretary General on Measures Taken to Implement Resolution 9/​8’ UN Doc A/​HRC/​25/​22 (17 January 2014), para 53. 9 ‘Report of the Secretary General on the Status of the Human Rights Treaty Body System’ UN Doc A/​71/​118 (18 July 2016). 10 UNHRC ‘Report on the Third Session of the Open-​ Ended Intergovernmental Working Group on Transnational Corporations and other Business Enterprises with Respect to Human Rights’ (24 January 2018), UN Doc A/​HRC/​37/​67, paras 117–​23; and UNHRC ‘Report of the Open-​Ended Working Group on Ageing on its Eighth Working Session’ (28 July 2107) UN Doc A/​AC.278/​2017/​2. 11 UNGA ‘Effective Implementation of International Instruments on Human Rights, Including Reporting Obligations under International Instruments on Human Rights’ (8 November 1989) UN Doc A/​44/​668 (hereinafter Initial Report); ‘Interim Report on Updated Study by Mr. Philip Alston’ (22 April 1993)  UN Doc A/​ CONF.157/​PC/​62/​Add.11/​Rev 1 (hereinafter Interim Report); and ‘Final Report on Enhancing the Long-​Term

Reform of the UN Human Rights Treaty Body System  647 by the former United Nations High Commissioner for Human Rights (UNHCHR), Louise Arbour;12 and the ‘Dublin process’ spearheaded by her successor in the post, Navanethem Pillay, which itself prompted the initiation of an inter-​governmental process on treaty body reform. The chapter traces the outcomes of the reform agenda as it has unfolded over the years, highlighting the nature of the processes adopted and culminating in a cautious prognosis for the future.

18.2  Reports of the Independent Expert 1989–​1997 The first tentative effort by the UN itself to engage with the need to reform the treaty body system occurred in 1989 when the UN Secretary-​General appointed Professor Philip Alston as an Independent Expert to examine possible long-​term approaches to enhancing the effective operation of existing and prospective treaty bodies established under United Nations instruments and to report thereon to the General Assembly. Between 1989 and 1997, Alston produced three substantial reports in fulfilment of his brief.13 As noted at the outset, it is striking that many of the problems which he identified in his initial report in 1989 regarding the functioning of the treaty body reporting procedures still persist today. These include, inter alia, inadequate, unsatisfactory, and non-​submitted reports;14 proliferation and overlapping of reporting obligations for States parties to multiple treaties;15insufficient resources;16 insufficient meeting time for the treaty bodies and inadequate servicing for members.17 In his initial and interim reports, Alston made a variety of recommendations for reform. These included, inter alia, the enhancement of the role of NGOs in reporting procedures;18 the extension of treaty body meeting times;19 advance preparation of lists of issues of concern to the treaty body prior to the constructive dialogue;20 improving public access to information on the activities of the treaty bodies;21 development of concerted practices and procedures by the treaty bodies to deal with persistent non-​reporting states;22 as well as various methods of reducing the overall burden of reporting requirements.23 However, despite the fact that some improvements to the overall system of reporting were initiated on the strength of his recommendations, Alston had reached Effectiveness of the United Nations Treaty System’ (27 March 1997) UN Doc E/​CN.4/​1997/​74 (hereinafter Final Report). 12 OHCHR ‘Concept Paper on the High Commissioner’s Proposal for a Unified Stranding Treaty Body’ (22 March 2006) UN Doc HRI/​MC/​2006/​2 (hereinafter USTB proposal). 13 Above n 11. 14 Initial Report, above n 11, para 35. 15 Ibid, paras 36–​53. 16 Ibid, paras 55–​64. 17 Ibid, paras 100–​9. 18 Ibid, paras 119–​22. 19 Ibid, paras 185–​93. 20 Ibid, paras 100–​13. 21 Ibid, paras 132–​36. 22 Ibid, paras 109–​22. 23 Ibid, paras 164–​82.

648  Suzanne Egan the conclusion in 1997 that the treaty monitoring system was ‘unsustainable’ and that significant reforms would need to be implemented for the overall regime to meet its objectives.24 In his final report, he set out a range of options available to states for dealing with the crisis in the long-​term, the most desirable of which involved the idea of states producing a single consolidated report to be submitted in fulfilment of the requirements of all of the treaties to which states are parties; the introduction of a more targeted and simplified reporting procedure; and limiting the number of new treaty bodies.25 As part of these latter recommendations, Alston harked back to a proposal previously made by him in his Initial Report regarding long-​term reform of the entire treaty system,26 viz. the possibility of consolidating the existing network of treaty bodies. While the precise modalities of such consolidation would need to be fleshed out, the basic notion envisaged was that of an entirely new ‘super-​committee’ or possibly two such committees, which would be responsible for supervising the implementation by states of all treaty obligations. This proposal was proffered at the time as ‘food for thought’ for the UN member states,27 not to be viewed as a ‘radical or drastic’ approach, but rather an inevitable response to the ad hoc development of the system.28 Alston did note that the issues raised by his consolidation proposal would at some point require ‘. . . a sustained exchange of views in order that the advantages and disadvantages can be adequately articulated’.29 Although it took another fifteen years before such a dialogue was seriously entertained, many of the less ambitious reforms suggested by Alston have formed the basis of concrete improvements to the reporting procedures. Most notable amongst these, is the adoption of a simplified reporting procedure in recent years by all of the relevant treaty bodies.30

18.3  The unified standing treaty body proposal It was not until the turn of the century that the UN began to deepen its commitment to fundamental reform of the treaty system. In 2002, the former UN Secretary-​General identified such reform as a key element in achieving an integrated human rights system (itself a fundamental precondition of the Millennium Declaration’s goal of raising country level human rights capacity).31 He called on the treaty bodies to consider crafting a more coordinated approach to their activities; standardizing varied 24 Final Report, above n 11, para 10. 25 Ibid, paras 89–​101. 26 Ibid, para 94 and Initial Report, above n 11, Part VII, 67–​9, paras 175–​83. 27 Final Report, above n 11, para 176. 28 Ibid, para 175. 29 Initial Report, above n 11, para182. 30 Under this new procedure, States parties now base their reports on a specific list of issues compiled in advance by the treaty bodies rather than the process being initiated by the production of an all-​encompassing report by the states themselves. The extent to which each of the treaty bodies now uses this simplified procedure is captured in Annex XIV of the Report of the Secretary General on the Status of the Human Rights Treaty Body System 2016, above n 16. 31 United Nations Millennium Declaration, UNGA Res 55/​2 (18 September 2000) UN Doc A/​RES/​55/​2.

Reform of the UN Human Rights Treaty Body System  649 reporting requirements and allowing states to produce a single report, summarizing their adherence to the full range of international human rights treaties to which they are party.32 The Report called on the UNHCHR to consult with the treaty bodies and make recommendations on ‘new streamlined reporting procedures’.33 Following the UNHCHR’s subsequent consultation with the treaty bodies, a ‘brainstorming meeting’ of representative of all actors in the system was organized by the Office of the High Commissioner for Human Rights (OHCHR) and the Government of Liechtenstein at Malbun, Liechtenstein from 4–​7 May 2003. The meeting was significant for the agreement apparently reached between participants that treaty body reform should focus on practical and flexible measures. In particular, the participants agreed on the need, amongst other things, for the development of harmonized reporting guidelines; for treaty bodies to set their schedules for review far in advance and for the notion of focused reports to be explored further. Ominously, the idea of a ‘single report’ option, first raised by Alston, was found not to be a desirable option.34 In March 2005, the Secretary-​General again alluded to the need for reform of treaty bodies in his Report to the GA in which he commented that: . . . the human rights treaty bodies . . . need to be much more effective and more responsive to violations of the rights that they are mandated to uphold. The treaty body system remains little known; is compromised by the failure of many States to report on time if at all, as well as the duplication of reporting requirements; and is weakened further by poor implementation of recommendations.35

These difficulties led him to advocate specifically that harmonized guidelines on reporting to all treaty bodies should be finalized and implemented so that these bodies could function ‘as a unified system’. The latter recommendation was to some extent ambiguous: on the one hand, it might have been interpreted simply as a call for clearer, harmonized guidelines as between all of the treaty bodies which would make the overall process of reporting function more coherently; or, it could have been interpreted, more radically, as a call for a unified treaty body. The response from the former UNHCHR, Louise Arbour, to the Secretary-​General’s recommendation incorporated both interpretations. In her subsequent Plan of Action on the future strategic direction of OHCHR, Arbour advocated a twin-​track approach to treaty body reform.36 Specifically, she stressed the need for greater country engagement between OHCHR and the States parties, increased resources and the need for the 32 Report of the Secretary-​General, ‘Strengthening of the United Nations:  An Agenda for Further Change’ (2002) UN Doc A/​57/​387. 33 This proposal was subsequently endorsed by the GA: UNGA Res 57/​300 (7 February 2003) UN Doc A/​Res/​ 57/​300, para 8; and the former CHR: UNCHR Res 78 (2004), UN Doc E/​CN.4/​2004/​L.11/​Add.7. 34 Report of a Brainstorming Meeting on Reform of the Human Rights Treaty Body System, UN Doc HRI/​ICM/​ 2003/​04-​ HRI/​MC/​2003/​4, paras  10–​93. 35 Report of the Secretary General, ‘In Larger Freedom: Towards Development, Security and Human Rights for All’ (2005) UN Doc A/​59/​2005, para 147. 36 Report of the Secretary-​General, ‘Plan of Action Submitted by the United Nations High Commissioner on Human Rights’ (2005) UN Doc A/​59/​2005/​Add 3, Annex.

650  Suzanne Egan finalization of harmonized reporting guidelines. In the longer term, however, the Plan resurrected the kite flown by Alston over a decade previously, viz. that the route to fundamental reform and consolidation of the work of the treaty bodies was through the creation of a unified standing treaty body. This proposal was subsequently presented in a ‘Concept Paper’ published by the OHCHR Secretariat in March 2006.37 While presenting various options as to the format for a unified body,38 the paper essentially advocated that a unified body, composed of permanent and professional members, would streamline and make more effective the performance of all treaty body functions. On reporting, in particular, it suggested that a single report for each state, every three to five years, in respect of all of its treaty obligations would provide both States parties and partners an ‘opportunity to carry out in-​depth, holistic, comprehensive and cross-​cutting assessments and analysis of a state’s human rights performance against all relevant obligations’.39 It would assist in identifying priorities for action, as well as mainstreaming of the rights of specific groups in the interpretation and implementation of all obligations.40 The production of a single document at the end of the reporting process by the unified treaty body would in turn assist national stakeholders in integrating those concerns into their own work programmes.41 Moreover, a unified body would ensure consistency in recommendations as well as in the interpretation of treaty provisions.42 It would give rise to a longer and more enhanced period of dialogue43 as well as stronger follow-​up capacity.44 Moreover, it would allow for even stronger links with other human rights bodies (such as the special procedures mechanisms or regional human rights systems) and political bodies, such as the Human Rights Council and the Security Council.45 Viewed in the abstract, there are many logically compelling elements to the notion of a unified treaty body outlined in Arbour’s proposal. These include its potential capacity to systematize treaty monitoring by avoiding unnecessary duplication of information-​gathering and analysis and its capacity to attract more publicity than the current arrangements by its very nature as a permanent, professional, expert body. But while the idea of a unified treaty body was recognized as having positive potential in academic circles,46 the proposal received short shrift in other quarters. This was made evident at a second ‘brainstorming meeting’ on the theme of treaty body reform, hosted again by the government of Liechtenstein, in July 37 USTB Proposal, above n 12. 38 Ibid, paras 38–​45. 39 Ibid, para 49. 40 Ibid. 41 Ibid, para 29. 42 Ibid, para 30. 43 Ibid, para 31. 44 Ibid, para 32. 45 Ibid, para 36. 46 These are amongst the favourable aspects of the USTB identified by R Johnstone, ‘Cynical Savings or Reasonable Reform? Reflections on a Single Unified UN Human Rights Treaty Body’ (2007) Human Rights Law Review 173–​200. See also J Morijn, ‘Reforming United Nations Human Rights Treaty Monitoring Reform’ (2011) NILR 295, 328–​9. See Hampson, ‘An Overview of the Reform of the UN Human Rights Machinery’ (2007) Human Rights Law Review 1, 12.

Reform of the UN Human Rights Treaty Body System  651 2006.47 The record of the meeting indicated that Arbour’s proposal ‘found very little support’.48 Objections were raised on a variety of grounds, including that the paper was unclear as to how a unified body would address the reporting burden on states as well as different ratification patterns; that it lacked in-​depth analysis of the current challenges facing reform; and that more empirical information on how a unified body could meet those challenges was necessary before a leap could be taken in its direction.49 Embedded in the list of objections is the notion that the body might take on a ‘quasi-​judicial’ character and it is reasonable to assume that this latter objection was particularly compelling from the perspective of many states.50 Interestingly, and perhaps predictably given the vested interests at stake, the reaction to the Arbour proposal on the part of the treaty bodies was mostly negative.51 Such resistance was based inter alia on the fear that the focus on specific issues which exists in the current system would be lost in a unified treaty body52 (an objection also voiced by NGOs);53 that the creation of such a body would raise complex legal54 and political problems, not easily solved in the short or medium term;55 and that fundamentally, there would be no guarantee that such a body would necessarily mark an improvement in human rights protection or provide a solution to the current challenges facing the treaty system.56 The Committee Against Torture expressed the most openness to the proposal, while the Committee on the Elimination of Racial Discrimination proposed the establishment only of a single body to deal with individual complaints.57 All of the treaty bodies expressed a strong preference for a more incremental approach to treaty reform, based on harmonization and coordination, rather than fundamental structural reform.58 Aside from these substantive objections, it is not difficult to discern that such comprehensive opposition to the proposal as a whole was partially rooted in the nature of the process by which it was advanced. Whereas the reports done by Philip Alston in the

47 The meeting (otherwise known as Malbun II) was attended by State representatives, treaty body experts, NHRIs and NGOs:  UNHRC, ‘Chairperson’s Summary of a Brainstorming Meeting on Reform of the Human Rights Treaty Body System’ (25 September 2006) UN Doc A/​HRC/​2/​G/​5 Annex. 48 Ibid, para 12. 49 Ibid, para 13. 50 Ibid. 51 See OHCHR ‘Report of the Working Group on the Harmonization of Working Methods of Treaty Bodies’ (9 January 2007) UN Doc HRI/​MC/​2007/​2. 52 Ibid. See also Statement by CEDAW at its 35th session, ‘Towards a Harmonized and Integrated Human Rights Treaty Body System’ (15 May–​2 June 2006), available at:  www.un.org/​womenwatch/​daw/​cedaw/​35sess.htm; H Schopp-​Schilling, ‘Treaty Body Reform; The Case of the Committee on the Elimination of Discrimination against Women’ (2007) Human Rights Law Review 201, 210; and ‘Statement by the CMW Concerning the Idea of Creating a Single Human Rights Treaty Body’ in ‘Report of the Committee on the Protection of the Rights of All Migrant Persons and Members of their Families’ (23–​27 April 2007) UN Doc A/​62/​48, 23. 53 See, for example, the ‘Statement of the NGO Group for the CRC on Treaty Body Reform’ (20 June 2006), available at: http://​www.crin.org/​resources/​infoDetail.asp?ID=8806. 54 As to this, see M Bowman, ‘Towards a Unified Treaty Body for Monitoring Compliance with UN Human Rights Conventions? Legal Mechanisms for Reform’ (2007) Human Rights Law Review 225–​49. 55 See, in particular, the views expressed by the Human Rights Committee in ‘Report of the Working Group on the Harmonization of Working Methods of Treaty Bodies’, above n 51, para 7. 56 Ibid, paras 7 and 8. 57 Ibid, paras 8 and 5, respectively. 58 Ibid, para 11.

652  Suzanne Egan 1990s were by way of an ‘expert study’ which he himself identified as a ‘. . . useful means by which to shed further light on issues that require continuing reflection and debate’,59 the unified treaty body proposal was clearly perceived as a far more threatening, ‘top-​down’ process, exercised from within the system by the OHCHR with little advance consultation of any of the key stakeholders engaged in the work of the system.60 Experience gained from ‘enterprise transformation’ methodologies commonly applied across a range of entities from businesses, hospitals to government bodies and agencies demonstrates that eliciting stakeholder views is a crucial element in leading reform efforts in any enterprise.61 While the proposal did articulate a clear vision for change, some effort to elicit stakeholder views as to overall possibilities for reforming the system might have helped to identify in advance potential gaps in that vision, its tenability and in the analysis ultimately presented. As Bowman has observed, the importance of governmental support, in particular, for any such initiative is a key factor in any effort to achieve it62 and one that should ideally have warranted detailed advance consultation.63

18.4  Strengthening the treaty body system 2009–​2012 While debate on the merits of a unified treaty body was in train, the treaty bodies and OHCHR had been working on more incremental measures of reform, including the development of new harmonized guidelines for the drafting of state reports under all of the treaties;64and the development of a more streamlined reporting procedure first suggested by Alston in his final expert report.65 By this stage, the advent of the Universal Periodic Review (UPR) system being pioneered by the Human Rights Council was already beginning to exert its own impetus for reform. Although UPR provided a significant means of increasing pressure on states to ratify human rights treaties and to comply with their reporting obligations,66 this ostensibly welcome 59 Initial Report, above n 11, para 3. 60 This point is also noted by R Johnstone, ‘Streamlining the Constructive Dialogue:  Efficiency from States’ Perspectives’ in C Bassiouni and W Schabas (eds), New Challenges for the UN Human Rights Machinery (Intersentia, 2011) 59, 71–​2. 61 See generally D Nightingale and J Srinivasan, Beyond the Lean Revolution:  Achieving Successful and Sustainable Enterprise Transformation (Amacom, 2011). The authors define an ‘enterprise’ as ‘. . . a complex, integrated, and interdependent system of people, processes and technology that creates value as determined by its key stakeholders’, 2. 62 M Bowman, above n 55, 249. 63 It should be noted that numerous academic commentators have advocated consolidation of the treaty bodies in some shape or form over the years but again, such arguments have so far met with little success within the UN system. See, for example, Bayefsky, The UN Human Rights System: Universality at the Crossroads (Transnational Publishers, 2001); M Scheinin, ‘The Proposed Optional Protocol to the Covenant on Economic, Social and Cultural Rights: A Blueprint for UN human rights treaty body reform without amending the existing treaties’ (2006) Human Rights Law Review 131; and Hampson, above n 47, 12. 64 Report of the Secretary-​General, ‘Compilation of Guidelines on the Form and Content of Reports to be submitted by States Parties to the International Human Rights Treaties’ (21 May 2007) UN Doc HRI/​GEN/​2/​ Rev 4. 65 See text accompanying notes 26 to 29 inclusive. 66 Some evidence that UPR has exerted positive results in this regard has already been detected: See ‘Evaluation of the Use of Additional Meeting Time by the Human Rights Treaty Bodies: Note by the Secretary-​General’ (27 August 2010) UN Doc A/​65/​317, para 43.

Reform of the UN Human Rights Treaty Body System  653 development foreshadowed even greater strains in terms of the workload of the treaty bodies. Further, UPR was also proving to be a costly exercise which inevitably diverted much needed resources away from the treaty body system.67 Moreover, while UPR presented on the one hand a potentially positive opportunity for ‘follow-​up’ on treaty body recommendations, concerns soon began to surface that it could ‘. . . do great harm to the idea of genuine accountability’.68 Specifically, the worry was raised that it might overshadow or indeed duplicate the work being done by the UN treaty bodies69or worse still, provide a forum for States to re-​formulate, condense and attract explicit rejection of their recommendations, thereby undermining the authority of those bodies and the substance of their work. In the midst of this changing and uncertain terrain, a decisive moment occurred in 2009, when a year after her appointment, Arbour’s successor to the post of UNHCHR, Navanethem Pillay, invited States parties to human rights treaties as well as stakeholders ‘. . . to initiate a process of reflection on how to streamline and strengthen the treaty body system to achieve better coordination among those mechanisms, as well as in their interaction with Special Procedures and the UPR’.70The choice of words used for this invitation was significant, signaling as it did that the notion of a USTB was officially off the table and was being replaced by a far less threatening and inclusive initiative, predominantly aimed at improving the impact of the treaty bodies at the national level ‘. . . by strengthening their work while fully respecting their independence’.71 True to this objective, some twenty consultations then ensued72 between 2010 and 2012 in what came to be known as the ‘Dublin Process’,73 involving a wide range of stakeholders including the States parties, treaty body experts, NGOs, NHRIs and academics. These consultations yielded a broad array of proposals generated by all of the participants involved, which were made publicly accessible on a dedicated website of the OHCHR.74 Thus what marked this process out from its predecessors from the outset was the deliberate emphasis placed on crafting it as a ‘bottom-​up’ and ‘participatory’ one, inviting multiple stakeholders in the treaty system to contribute ideas for change. On the 67 The costs of UPR are estimated to be over $10 million per biennium. On this issue, see Statement of Mr. S Muhammad Shaaban, Treaty Body Strengthening, and Informal Consultation for States Parties, New York, and 2 April 2012); available at: http://​www.ohchr.org/​EN/​HRBodies/​HRTD/​Pages/​NYConsultation.aspx 68 Hampson, above n 47, 9. 69 N Bernaz, ‘Reforming the UN Human Rights Protection Procedures: A Legal Perspective on the Establishment of the Universal Periodic Review Mechanism’ in K Boyle (ed), New Institutions for Human Rights Protection (OUP, 2009) 75, 77. 70 Statement of Ms N Pillay, United Nations High Commissioner for Human Rights, at the 12th session of the Human Rights Council (14 September 2009), available at:  https://​reliefweb.int/​report/​afghanistan/​ statement-​ms-​navanethem-​pillay-​united-​nations-​high-​commissioner-​human-​rights-​12th. 71 UNHCHR Report, above n 5, 9. 72 All documentation pertaining to the treaty body strengthening process is accessible on the OHCHR’s website: http://​www2.ohchr.org/​english/​bodies/​HRTD/​index.htm. 73 This appellation derives from the first consultation of treaty body members in Dublin, Ireland in December 2009: See ‘Dublin Statement on the Process of Strengthening of the United Nations Human Rights Treaty Body System’ (November 2009) available at: http://​www2.ohchr.org/​english/​bodies/​HRTD/​docs/​DublinStatement.pdf. The Statement sets out the views of participating treaty body members on the proper framework and goals of treaty body reform: See generally, MO’ Flaherty, ‘Reform of the UN Human Rights Treaty Body System: Locating the Dublin Statement’ (2010) Human Rights Law Review 319. 74 The website is available at: http://​www.ohchr.org/​EN/​HRBodies/​HRTD/​Pages/​TBStrengthening.aspx.

654  Suzanne Egan one hand, this was undoubtedly a positive development, adhering closely as it did to tried and tested enterprise transformation methodologies referred to in the previous section.75 However, in order for stakeholder input to be truly valuable in any such initiative, it is vital that it is preceded by an ex ante assessment of the strategic objectives of the enterprise as a whole, as well as the salience of each of the stakeholders to the enterprise in terms of the value that each brings to it and vice-​versa.76 Furthermore, any such process must be steered and implemented by a strong and identifiable leadership, committed to the process of change.77 In other words, transformation initiatives should ideally be ‘bottom-​up’, as well as ‘top-​down’, involving the careful prioritization of stakeholder input, distilled by reference to the strategic goals of the enterprise and executed by a clearly discernible and authoritative driver of change. Even the remotest familiarity with the treaty body system is sufficient to detect problems with the application of each of these key desiderata in this context. To begin with, the strategic objectives of the treaty bodies are interpreted differently by the stakeholders, ranging along a functional spectrum of providing advice to the States parties on implementation of treaty obligations,78 to holding States ‘accountable’ for failure to adhere to those obligations, or possibly a combination of both.79 While the difference between these perspectives may appear subtle, the relative standpoint can radically affect views on the proper substance and scope of treaty body activities. Second, identifying the salience of stakeholder input is by no means straightforward in the treaty body context, with multiple (but not necessarily cohesive) stakeholder groups asserting primacy80 or at least parity of esteem81 as between each other; each seeking to extract specific outcomes from the reform process; and each possessing distinct ‘veto possibilities’82 for blocking 75 See above, section II, text accompanying note 61. 76 See Nightingale and Srinivasan, above n 61, 60–​78. 77 Ibid, 18–​19,  47–​59. 78 See Report of the ‘Informal Technical Consultation for States parties on Treaty Body Strengthening’ at Sion, Switzerland (12–​13 May 2011) at which States parties broadly agreed on the rather vague position that the purpose of the treaty body system was the ‘protection of human rights’, available at: http://​www.ohchr.org/​EN/​HRBodies/​ HRTD/​Pages/​TBSConsultations.aspx#tb. 79 See Report of the ‘Lucerne Academic Consultation on Strengthening the United Nations Treaty Body System’ (24–​ 25 October 2011), available at:  http://​www.ohchr.org/​EN/​HRBodies/​HRTD/​Pages/​TBSConsultations. aspx#tb,  3–​5. 80 The Report of the Geneva ‘Consultation for States on Treaty Body Strengthening’ (7–​8 February 2012) notes that ‘Several States highlighted the need for a leading role of State parties in the process and submitted that State parties were not on par with civil society and national human rights institutions as States parties are signatories and duty bearers and therefore have particular responsibilities’ para 11, available at: https://​www.ohchr.org/​EN/​ HRBodies/​HRTD/​Pages/​GenevaConsultation.aspx, para 11. 81 The ‘Seoul Statement on Strengthening the  UN Human Rights Treaty Body System’ (19–​ 20 April 2011) characterizes NGOs as ‘primary stakeholders’ in the system of human rights protection, available at: https://​ www.ohchr.org/​EN/​HRBodies/​HRTD/​Pages/​TBSConsultations.aspx#tb, para 3(a). The ‘Marrakech Statement on Strengthening the Relationship between NHRIs and the Human Rights Treaty Bodies System’ (10 June 2010) urges the treaty bodies to take account of the independent status of ‘A’ accredited NHRIs and ‘. . . the particular role that they have in national human right (sic) protection and contribution they can make to the treaty monitoring process’, available at: https://​www2.ohchr.org/​english/​bodies/​HRTD/​docs/​MarrakeshStatement_​en.pdf, para 22. The Dublin Statement refers to the treaty bodies as a ‘central actor’ in the process of strengthening the treaty body system, above n 73, para 17. 82 This term is used by J Mahoney and K Thelen, ‘A Theory of Gradual Institutional Change’ in Mahoney and Thelen (eds), Explaining Institutional Change: Ambiguity, Agency and Power (Cambridge University Press, 2010) 1,  18–​19.

Reform of the UN Human Rights Treaty Body System  655 change.83 Finally, there is an obvious difficulty in identifying a clear and authoritative leadership structure for the treaty body system. This is because the system functions in an essentially decentralized context, in which the treaty bodies operate as autonomous and independent entities, capable of drawing up their own rules of procedures, though vulnerable to the ultimate power of the States parties which exercise budgetary control over their operation. In other words, despite the best efforts of any individual occupying the role of UNHCHR who seeks to exercise a leadership role in reforming the system, such efforts will inevitably be constrained by the fact that that office does not have executive authority over the treaty bodies, much less over the States parties. In such a strained context, and based on past reaction to the unified treaty body proposal, it was almost inevitable that in distilling the fruits of the many consultations conducted, Pillay chose, in large-​measure, to pick the lowest hanging ones, that is, those that would not require treaty amendment and would ‘bear a likelihood of generating the largest possible agreements’.84 Thus, apart from a general appeal for an obviously much needed increase in resources from the general UN budget, her report consisted of a broad array of proposals, rather than a radical agenda that might have risked alienating particular stakeholder groupings.85 As explained and analysed in detail elsewhere,86 these included proposals aimed at enhancing the impartiality and independence of treaty body members and increasing the visibility and accessibility of the bodies themselves. The report also suggested measures aimed at capacity-​building, including the idea of establishing ‘national reporting and coordinating mechanisms’ which would have a specific role to play in preparing and coordinating state reports to treaty bodies as well as in the follow-​up process thereafter. Echoing reform proposals in other institutional contexts, this idea presents an obvious and sensible attempt to re-​focus minds on the hugely important (though often neglected) role that other actors and institutions have to play, besides the treaty bodies themselves, in developing the effectiveness of the system. The lion’s share of Pillay’s report was devoted to suggestions aimed at enhancing the operation of the treaty body procedures, with particular focus on a series of cost-​saving suggestions designed to increase the effectiveness of the reporting procedure within existing resources, without compromising its aims. Many of these were concrete, practical, and non-​contentious, such as the proposals addressed to states and to the treaty bodies to respect and enforce page limits on treaty body documentation and to devise 83 Most obviously, the States parties, through the GA, have control over the budgetary resources of the treaty bodies; the treaty bodies have full autonomy in relation to their working methods and in regard to the scope and pace of harmonization; while the work of the treaty bodies is undoubtedly dependent on the active engagement of civil society. In this respect, see the point made by Lynch and Schokman that ‘NGO engagement with Treaty Bodies must therefore represent a sound return on investment’: P Lynch and B Schokman, ‘Taking Human Rights from the Grassroots to Geneva . . . And Back: Strengthening the Relationship between UN Treaty Bodies and NGOs’ in Bassiouni and Schabas, above n 60, 173, 177. 84 UNHCHR report, above n 5. 85 This strategy is clear from the stated objective of the report as being ‘. . . to identify synergies, linkages and areas for mutual reinforcements and potential for future common ground that began to emerge through the consultation process’: ibid, 10. 86 See S Egan, ‘Strengthening the United Nations Human Rights Treaty Body System’ (2013) 13 Human Rights Law Review 209–​43.

656  Suzanne Egan strategies to offset translation costs.87 Other proposals essentially reproduced the now familiar appeal to the treaty bodies to align their working methods and practices across a range of issues, including by the adoption of a simplified reporting procedure; as well as regards the format of the constructive dialogue, concluding observations and follow-​ up activities.88 Of the package of suggestions to have emerged from the consultation process and reproduced in the report, two stand out as having clear potential to ‘transform’ the system had they stood a chance of commanding support from the States parties and treaty bodies. The first was a far-​reaching proposal to establish a ‘comprehensive reporting calendar’ (or ‘master calendar’) whereby the reporting schedule of States parties to the treaties would be fixed in a five-​year, rolling cycle during which each state would be required to submit no more than two reports per year.89 Promoted for many years by NGOs,90 this proposal was clearly aimed at eliminating the chaos obtaining in state reporting procedures whereby reporting cycles are largely uncoordinated, based on varying levels of periodicity as between different treaties as well as the cooperation of states in complying with their obligations. This has resulted in unmanageable schedules whereby a particular state may be required to report to several treaty bodies in the one year, as well as inequality of treatment whereby compliant states are reviewed more often and regularly than those that are not. In order for the fixed calendar schedule not to slide, however, the proposal incorporated a controversial element, namely that states that defaulted on any of their reporting obligations during the fixed cycle would have to face examination in the absence of a report, possibly based on an oral report to the relevant committee.91 As will be seen in the next section, the obvious cost implications of rolling out this proposal together with the built-​in quid pro quo applicable to defaulting states proved to be a deal-​breaker for the States parties in subsequent negotiations on the substance of Pillay’s report. The second most innovative idea to have emerged from the consultation process was plainly geared towards tackling the leadership issues raised directly by the strengthening process itself. It involved conceptualizing the chairpersons of the treaty bodies as a sort of executive bureau, at least as far as working methods and procedures are concerned, as a means of gradually filling the void in leadership structures necessary to drive a treaty ‘system’.92 This idea was based on the view that the lack of decision-​making capacity that had hitherto characterized the meetings of treaty body chairpersons had made it ‘. . . very difficult to make progress, even in relation to fairly simple matters of working methods’.93 Codifying the role of the chairpersons in such a manner has 87 UNHCHR report, above n 5, 54–​6. 88 Ibid,  48–​69. 89 Ibid,  37–​47. 90 This proposal was also formally recommended to the General Assembly by the Secretary General in 2011:  Report of the Secretary-​General ‘Measures to Improve Further the Effectiveness, Harmonization and Reform of the Treaty Body System (7 September 2011) UN Doc A/​66/​344, paras 27–​9. 91 UNHCHR report, above n 5, 39. 92 This point is made most forcefully by participants at the Lucerne Consultation, above n 79, 8–​9. 93 See ‘Dublin Statement on the Process of Strengthening the United Nations Human Rights Treaty Body System: Response by Non-​Governmental Organizations’ (November 2010) paras 26 and 27, available at: http://​ www2.ohchr.org/​english/​bodies/​HRTD/​docs/​FinalDublinStatResponseNGOs.pdf.

Reform of the UN Human Rights Treaty Body System  657 real potential for accelerating the harmonization of working methods, but for such an idea to gain traction, it must be quite concrete and enable decisions on harmonization to be taken by the chairpersons, perhaps, for example, on a qualified majority basis. Crucially, it must also command broad support from all of the treaty bodies. Clearly, such support is lacking, as is reflected in the suggested mandate agreed to by the treaty body members who first proposed it and by the chairpersons of the treaty bodies at their annual meeting in 2011.94 According to this weak formula, which was endorsed in the High Commissioner’s report, the chairpersons would be mandated to recommend the adoption of measures ‘. . . common across the treaty body system’ and ‘which have previously been discussed and agreed to within each of the Committees . . .’ Moreover, any measure taken under this regime must be implemented by all treaty bodies, ‘. . . unless a Committee subsequently dissociates itself from it’.95 Rather than enhancing the role of the chairpersons as an executive forum, this formulation arguably undermined their potential to take a leadership role.

18.5  The intergovernmental process on  treaty body reform 2012–​2014 The existence of clear lines of tension as regards issues of leadership and stakeholder input in the Dublin process became evident in February 2012 when, just before Pillay was due to release her report containing all the recommendations outlined above, the UN General Assembly passed a resolution paving the way for the creation of an intergovernmental process for strengthening and enhancing the effective functioning of the treaty body system.96 Tabled by Russia with the support of a cross-​regional group of ‘like-​minded’ states,97 the initiative was clearly premised on the view that the States parties should be controlling the agenda of treaty body reform and that the activities of the treaty bodies needed to be reined in.98 The fact that the resolution was passed by eighty-​five votes in favour and sixty-​six abstentions, rather than by consensus, indicated that a significant proportion of states were at the very least uncomfortable with the nature and timing of the proposal.99 Their reservations included concern that the 94 See ‘The Poznan Statement on the Reforms of the United Nations Human Rights Treaty Body System’ (28–​29 September 2010), available at:  https://​www.ohchr.org/​EN/​HRBodies/​HRTD/​Pages/​TBSConsultations.aspx#tb, para 17: and Note by the Secretary General, ‘Report of the Chairs of the Human Rights Treaty Bodies on their 23rd Meeting’ (22 July 2011) UN Doc. A/​66/​175, para 9. 95 Ibid. 96 UN GA Res 66/​254 (16 February 2012) UN Doc A/​66/​L.37. 97 The like-​minded group is currently composed of over 52 states, led by Russia, China and Egypt: See further, Amr Essam, ‘The Like-​Minded Group: Speaking Truth to Power’ (URG, 10 May 2016) available at: https://​www. universal-​rights.org/​blog/​like-​minded-​group-​lmg-​speaking-​truth-​power/​. 98 ‘It is high time to give the lead to Member States and the General Assembly, given its universal membership’: Statement of the President of the GA on the adoption of GA Resolution creating an inter-​governmental process for the treaty bodies: See UN Department of Public Information, ‘General Assembly Adopts Resolution to Strengthen Human Rights Treaty Body System’ (23 February 2012), available at: https://​www.un.org/​press/​en/​ 2012/​ga11209.doc.htm. 99 This is clear from the discussion at the GA prior to the vote on the draft resolution. See UNGA ‘Official Records 66th Session: 98th Plenary Meeting’ (23 February 2012) UN Doc A/​66/​PV.98.

658  Suzanne Egan proposed inter-​governmental process would marginalize stakeholder input, compromise the independence of the treaty bodies, and frustrate the imminent fruits of the High Commissioner’s strengthening initiative which they felt would better inform governmental decision-​making across the board.100 Nonetheless, the passing of the enabling resolution ultimately paved the way for a series of consultations and negotiations between states on ‘how to strengthen and enhance the effective functioning of the human rights treaty body system’ with input obtained from other stakeholders only on an informal basis.101 The text did make some concessions to the strengthening initiative by providing that the intergovernmental process should ‘take into consideration’ High Commissioner Pillay’s impending report;102 and in a move that was to end up placing that report at the heart of the intergovernmental process, the two co-​facilitators appointed to drive it forward waited for the report to be released in June 2012 before kick-​starting the consultations. Drawing firmly on Pillay’s report, discussions in the intergovernmental process over the course of the next two years revolved around four themes: the master calendar proposal;103 the reporting process; treaty body working methods; and implementation capacity with resourcing of the treaty system being addressed as a cross-​cutting issue.104 The text of Resolution 68/​268 that finally emerged in April 2014 was in essence a compromise one, accommodating clear differences of opinion between participating states on the appropriate measures required to bolster the treaty body system.105 The like-​minded group which had spearheaded the process to begin with had pushed its agenda during the negotiations to assert control over treaty body working methods and outputs, including by means of the adoption of a ‘code of conduct’ for treaty body members.106 While Resolution 68/​268 incorporates this agenda to some extent, by emphasizing the need for the treaty bodies to respect their mandates,107 it preserves in essence the operational autonomy and independence of the treaty bodies and reinforces the distinctions between the different legal competencies and responsibilities of the various stakeholders in the treaty system. The text makes no reference to a code of conduct and merely ‘encourages’ the treaty bodies to enhance their efforts to achieve greater ‘efficiency, transparency, effectiveness and harmonization’ in their working methods.108 Significantly, the text endorses the notion of an enhanced role for the chairpersons in

100 See the contributions of Switzerland and the USA, ibid pp 4–​5. 101 UN GA Res 66/​254, above n 96, paras 1 and 6. 102 Ibid, para 3. 103 See text accompanying notes 89 to 91. 104 For a thorough analysis of the outcomes of the intergovernmental process, see C Broecker and M O’Flaherty, The Outcome of the General Assembly’s Treaty Body Strengthening Process: An Important Milestone on a Longer Journey (Universal Rights Group, 2015), available at:  https://​www.universal-​rights.org/​urg-​policy-​reports/​the-​ outcome-​of-​the-​general-​assemblys-​treaty-​body-​strengthening-​process-​an-​important-​milestone-​on-​a-​longer-​ journey/​. 105 GA Res 68/​268 on Strengthening and Enhancing the Effective Functioning of the Human Rights Treaty Body System (21 April 2014) UN Doc. A/​Res/​68/​268 [hereinafter Res. 68/​268]. 106 See Broecker and O’Flaherty, above n 104, 16. 107 Res 68/​268, above n 105, paras 9 and 35. 108 Ibid, paras 1, 5, 9, and 14.

Reform of the UN Human Rights Treaty Body System  659 generating greater harmonization109 as well as in fostering better communication on treaty body issues between the treaty bodies and the states parties.110 By far the most significant outcome of the intergovernmental process, reflected in Res. 68/​268, was the approach taken to address the resource crisis plaguing the treaty body system. Rather than committing to Pillay’s ambitious master calendar proposal, which was apparently rejected on financial, feasibility and principled grounds, the GA decided instead to sanction almost 30 per cent more meeting time (twenty weeks per year) for the treaty bodies from 2015. A formula for apportioning this increased meeting time on a biennial basis to individual treaty bodies is set out in the resolution which takes into account the average workload and time necessary to avoid further backlogs of each treaty body.111The quid pro quo for this modest step-​forward in tackling the travails of the treaty body system, however, is that the funds required to resource this extra-​meeting time must be generated by a series of cost-​saving measures rather than by a major injection of increased funding from the UN budget. In line with suggestions made in Pillay’s report, the resolution specifically provides therefore for reducing the costs of translation and interpretation of treaty body inputs and outputs, by limiting the working languages of all treaty bodies to three, producing summary records in one language only and limiting the length of State party documentation and treaty body annual reports.112A certain amount of these cost-​savings—​estimated to be in the order of $19.2 million overall—​were also to be re-​channelled into supporting capacity-​building activities.113 Other important, albeit less far-​reaching proposals advocated in the report clearly received lukewarm support in the intergovernmental process. In this respect, while Res. 68/​268 ‘encourages’ measures aimed at ensuring the independence and impartiality of treaty body members, the very specific proposals made by the High Commissioner in this regard are conspicuous by their absence. Likewise, the strong recommendations made to states in Pillay’s report on the need to establish ‘national reporting and coordinating mechanisms’ appears to have been side-​lined in favour of an approach that encourages their establishment only on an optional basis.114 Lastly, Res. 68/​268 broadly endorses the call for greater visibility of treaty body activities by means of webcasting and video-​conferencing, yet failed to commit specific resources to such initiatives.115 In sum, it seems that initial fears raised that the intergovernmental process would entirely undermine Pillay’s strengthening initiative were not fully realized. Rather, the consultations and negotiations did produce some positive results; in particular, the reallocation of resources and expansion of meeting time necessary to assist the treaty bodies in managing their workloads. Contrary to the best efforts of the like-​minded group to emasculate the treaty bodies and to completely marginalize other stakeholder input in

109

Ibid, para 38. Ibid, para 39. 111 Ibid, para 26. 112 Ibid, paras 4, 15, 16, 25, and 30. 113 See Broecker and O’Flaherty, above n 104, 20. 114 Res 68/​268, above n 105, para 20. 115 Ibid, paras 22 and 23. 110

660  Suzanne Egan the system, the Resolution at least acknowledged the distinct roles and responsibilities of the treaty bodies and the States parties. On the other hand, Res. 68/​268 clearly eschewed even the mildest suggestion of systemic reform of the treaty system and failed to embrace substantially Pillay’s vision of transformation as a multi-​dimensional process involving specific contributions from all of the stakeholders involved.

18.6  The road ahead In the final two paragraphs of Res.68/​268, the GA committed to consider the state of the treaty body system no later than 2020 and to decide on further action to strengthen and enhance it further if necessary.116 Pending that review, it asked the Secretary-​General to submit to it a comprehensive report on the status of the system on a biennial basis, indicating the progress made by the treaty bodies in the interim.117 To this extent, the resolution clearly acknowledges its own limitations and the reality that reform of the treaty system is still very much a work in progress. The Secretary-​General’s first biennial report, published in 2016, unsurprisingly bears out this prognosis.118 In encouraging tones, the report states that the state of implementation of Resolution 68/​268 is ‘globally positive’, citing as evidence the fact that in the two years since its implementation, the number of state reports to the treaty bodies has increased as has the number of treaty body reviews, concluding observations and views on individual complaints.119 On the other hand, the report makes abundantly clear that while treaty body outputs and efficiency may indeed have increased, so apparently have the challenges long since facing the system. In this respect, the report highlights a number of factors which signal that the law of diminishing returns may already have set in half way through the life of the Resolution. These include the fact that the rate of treaty ratification has increased by 5 per cent thus increasing the potential workload of the treaty bodies in the coming years;120 the number of individual complaints has increased by 80 per cent;121 and most portentously, the backlog of the treaty body system as a whole has increased rather than decreased overall.122 As to the tentative support given in Res. 68/​268 to the idea of the chairpersons ‘leading’ the treaty bodies forward towards greater coherence and standardization of their working methods, the picture is also disappointing. While the Secretary General’s report indicates that harmonization of treaty body working methods is ‘progressing’,123 it is clear that many of the treaty bodies have been slow to embrace direction from the

116 Ibid, para 41. 117 Ibid, para 40. 118 Report of the Secretary General, ‘Status of the Human Rights Treaty Body System’ (18 July 2016) UN Doc A/​ 71/​118. 119 Ibid, paras 87–​8. 120 Ibid, para 5. 121 Ibid, para 21. 122 Ibid, para 31. 123 Ibid, para 88.

Reform of the UN Human Rights Treaty Body System  661 chairs and are as reluctant as ever to harmonize their working methods.124 This resistance to change continues to be a source of frustration to other stakeholders in the system. While there are many factors that explain barriers to change within any organization,125 there is clearly a difficulty in developing consensus within certain committees on the need for change or its advantages in their particular contexts. In this respect, a single annual meeting of chairpersons is hardly sufficient for meaningful leadership and communication of the need for change to take root. For this idea to move forward, further resources and commitment will be required. Likewise it seems clear that further opportunities will need to be generated for treaty body members to meet and communicate amongst themselves to discuss strategies for coordination so as to lessen fragmentation of the international protection system. However, in this regard, the report not only draws attention to the pressures of increased meeting time on an already strained treaty body membership,126 but also emphasizes the serious problems that have emerged in the staffing resources necessary to keep pace with treaty body activities.127 All things considered, it seems clear that the problems facing the treaty system have continued to accumulate and intensify and that the compromise formula provided for in Resolution 68/​268 for resolving its attendant problems has at best been a ‘sticking plaster’, very much threatening to come unstuck. This begs the question whether the system is truly running out of road or whether any meaningful measures to reform the effectiveness of the treaty system can be salvaged from the past and re-​generated in the future. The GA’s promised 2020 review has prompted reflection on this key question on the part of a number of key actors and observers of the treaty system. These include an Academic Platform Project on 2020 Review, spearheaded by the Geneva Academy of International Humanitarian Law and Human Rights, aimed at producing ‘the broadest possible range of ideas to enhance the effective functioning of the Treaty Body System, within the parameters of paragraph 41 of resolution 68/​268’.128 The project has involved regional consultations between academics, treaty body members, state representatives, NGOs, NHRIs and OHCHR representatives, each of which has produced a range of short and long-​term reform proposals. In May 2017, the International Service for Human Rights convened its own multi-​stakeholder consultation aimed at informing political strategy on treaty body strengthening.129 Many of the ideas discussed in the 124 This is clear from a perusal of the Report of the OHCHR Secretariat, ‘Implementation by Treaty Bodies of the Conclusions and Recommendations of the Treaty Body Chairpersons at their 26th Meeting in the Framework of GA Res 68/​268 (13 April 2015) UN Doc HRI/​MC/​2015/​2. 125 See, for example, K van Dam, S Oreg, and B Schyns, ‘Daily Work Contexts and Resistance to Organisation Change:  The Role of Leader-​Member Exchange, Development Climate, and Change Process Characteristics’ (2008) 57 Applied Psychology 313–​34. 126 Report of the Secretary General, above n 118, para 28. 127 Ibid, paras 42–​3, 47–​51, 54–​6, 62. 128 Hereinafter ‘Geneva Academy Academic Platform Project’. See Strengthening Human Rights Protection by Enhancing the Effective Functioning of the Human Rights Treaty System (Concept Note of the Geneva Academy of International Humanitarian Law and Human Rights, February 2016) 5, available at: https://​www.geneva-​academy. ch/​tb-​review-​2020. 129 UN Treaty Body Strengthening:  What Strategy Ahead of the 2020 Review? Report of a Multi-​Stakeholder Consultation (International Service for Human Rights (September 2017), hereinafter ‘ISHR Report’, available at: https://​www.ishr.ch/​news/​make-​no-​mistake-​dos-​and-​donts-​treaty-​body-​strengthening.

662  Suzanne Egan course of these two parallel initiatives return to familiar territory, in particular, ways to foster greater coherence and harmonization of treaty body working methods and outputs and increasing the accessibility and visibility of the system. While the consultation documents reveal a multiplicity of views, a few key points of convergence and innovative thinking stand out at the time of writing in January 2018. First, there appears to be consensus that regardless of the proposed merits of a unified treaty body, the prevailing political climate remains hostile to the idea and arguably more so than when it was firmly championed by Arbour in 2006.130 Even outside the political domain, concern regarding the dilution of treaty body expertise and issue-​ specificity within the context of a single unified body is still contentious.131 Attention has inevitably focused, therefore, on less dramatic proposals which have clear potential to address the impasse. In this respect, the idea of maximising ‘complementarity’ between the treaty body system and the UPR system appears to be one that is gaining most traction. Experience of UPR over two consecutive cycles has at this stage confirmed that whatever it’s actual impact on the ground,132 it is undoubtedly a highly visible and accessible tool of human rights monitoring. For this reason, opinions appear to be coalescing around the view that treaty body recommendations should be actively promoted on the part of states and NGOs in the context of UPR; and that the treaty bodies themselves should consciously bear UPR in mind in formulating clearer and more strategic recommendations. Thus, the perceived danger in the early years that treaty body recommendations might be contaminated by official rejection in the context of UPR appears to have given way to an increasing conviction that references to treaty body recommendations in UPR could engender multiple benefits, that is, enhanced coherence and visibility of treaty body recommendations, as well as entrenching the impact of those recommendations at the national level.133 In keeping with this overarching proposal, more specific ideas have emerged that advocate integrating reviews by the treaty bodies of state reports with reviews in the context of UPR. These suggestions essentially involve the notion of coordinating reviews by the treaty bodies of each state into one or more sessions that are fixed in advance (similar to the master calendar approach); and integrating these reviews with the state’s schedule for review under the UPR calendar.134 Such an approach certainly appears 130 See ISHR Report, ibid, para 11. For further reflections on this, see also Report of the Regional Consultation for Northern America (Geneva Academy Academic Platform Project, 1–​2 June 2017), available at: https://​www. geneva-​academy.ch/​tb-​review-​2020,  4–​6. 131 See T Johnson and S Dasgupta, ‘Identifying and Addressing Overlap in Human Rights Treaty Bodies’ (Memorandum prepared for the New York Consultation of the Academic Platform Project on Treaty Body Review 2020, June 2017) 3, available at: https://​www.geneva-​academy.ch/​tb-​review-​2020/​selected-​contributions. 132 See generally H Charlesworth and E Larking (eds), Human Rights and the Universal Periodic Review: Rituals and Ritualism (Cambridge University Press, 2015). 133 ISHR Report, above n 130, para 29. This view was clearly articulated at the majority of regional consultations hosted in the context of the Geneva Academy Academic Platform Project (n 129). See the reports from the academic consultations in Western Europe, Northern America, Asia, the Middle East, and in Latin America and the Spanish-​ Speaking Caribbean, available at: https://​www.geneva-​academy.ch/​tb-​review-​2020/​regional-​consulations. 134 See Report of the Regional Consultation for Latin America and the Spanish-​Speaking Caribbean (Geneva Academy Platform Project, 19–​20 November 2016), available at:  https://​www.geneva-​academy.ch/​tb-​review-​ 2020; and, further, Y Shany and S Cleveland, ‘Treaty Body Reform 2020: Has the Time Come for Adopting a Global Review Calendar?’ Note submitted for consideration by the Geneva Academy Academic Platform project’, above n 123, available at: https://​www.geneva-​academy.ch/​tb-​review-​2020/​selected-​contributions.

Reform of the UN Human Rights Treaty Body System  663 to hold advantages in terms of increasing the predictability and efficiency of the state reporting system, while at the same time increasing the capacity of UPR to facilitate implementation of treaty body recommendations. While the approach is clearly gaining momentum, it is nonetheless vulnerable to the same objections that torpedoed the master calendar. Its success will depend on generating ‘buy-​in’ for these advantages not only for states in terms of reducing their reporting burdens, but for treaty body members in freeing up time to focus on other functions and for other stakeholders in facilitating more predictable engagement with the treaty system. A number of further priorities emphasized in Pillay’s report but relegated in the inter-​governmental process have resurfaced in the more recent multi-​stakeholder consultations. These include the development of national processes for the election of treaty body members as well as mechanisms to coordinate reporting to the treaty bodies and follow-​up at the national level. Also, dedicated webcasting facilities in Geneva aimed at enhancing the accessibility and visibility of the treaty bodies have yet to be rolled out—​a deficit that stands in sharp contrast to the priority given to such facilities in the operation of the UPR. Few could doubt that each of these key desiderata would go a long way to improve the functioning of the treaty system if the necessary support to drive them forward could somehow be harnessed in the States parties.

18.7  Conclusion The impetus driving each of the reform initiatives described in this chapter, as mentioned at the outset, has been the perception of crisis affecting the operation of the treaty system. Alston’s recommendations were based on the observation that the treaty-​monitoring system had reached a ‘critical crossroads’ and that its ‘future evolution’ demanded that ‘. . . the gravity of existing problems be recognized, that the vital importance of the treaty regime be reaffirmed and that effective solutions be pursued with energy and commitment’.135 Arbour’s proposal was also premised on the belief that the system was reaching the ‘limits of its performance’136 and Pillay’s strengthening initiative was similarly generated by concerns about the continuing capacities of the system to operate in the short and longer term. Yet in spite of these dire warnings, states have consistently followed the path of ‘determined gradualism’137and allowed the system to grow exponentially, without committing to the resources necessary to equip strong, international supervisory mechanisms. To a realist, this paradox comes as no surprise and the challenge for each reform initiative has been to convince states, as the most powerful stakeholders, and the treaty bodies to a lesser extent, of the need

135 Initial Report, above n 11, para 8. 136 OHCHR Concept Paper, above n 12, para 27. 137 As P Alston notes, the phenomenon of ‘determined gradualism’ is rooted in ‘. . .  the reluctance of all governments to facilitate the emergence of a truly effective human rights monitoring regime, and the shrinking resources available to the United Nations for such activities’: P Alston, ‘Beyond “Them” and “Us”: Putting Treaty Body Reform into Perspective’ in Alston and Crawford, above n 5, 501, 522.

664  Suzanne Egan to transform the status quo. As noted in the preceding analysis, the difficulties in doing so are truly enormous in this context given the decentralized nature of the system, the ambiguities in leadership roles and the veto possibilities of the States parties. The combination of these various elements makes the prospects for wholesale transformation of the system—​such as by means of the USTB—​unlikely (certainly in the immediate future) no matter how logically compelling it may be. With that insight in mind, perhaps the greatest strength of Pillay’s strengthening initiative, albeit it imperfect, was its vision of reform as a multi-​faceted and dynamic process, involving states, the OHCHR secretariat, NGOs and NHRIs operating at the national and international level. This perspective resulted in the reorienting of reform proposals from ones that were targeted almost exclusively at the functioning of the treaty bodies themselves, to ones targeted at multiple actors in the system. On-​going stakeholder consultation in the lead up to the GA 2020 review of the treaty system appears to have consolidated that perspective and broadened consideration out to the benefits of much greater coordination not only between the treaty bodies themselves, but also between the treaty system and other international mechanisms, especially the UPR. If states can be convinced in 2020 that the streamlining advantages of a ‘global review calendar’ are in their best interests, progress towards a better integrated and more effective UN human rights system as a whole will be significant.138 NGOs and NHRIs, in particular, can play an extremely influential role in championing this vision and in prioritizing the domestication of treaty body outputs in the national system.139 As has been observed, there seems to be no ‘silver bullet’ to solve the travails of the treaty system,140 but there is surely continued value and hope in trying.

138 S Cleveland characterizes the challenge as one of ensuring ‘that the whole of the current human rights system is greater than its parts, and to maximize the contribution of the treaty bodies to this system’: ‘Enhancing Human Rights Connectivity for the Treaty Body System’, unpublished paper submitted for the Geneva Academy Academic Platform Project Regional Consultation, Costa Rica (8–​9 December 2016), available at:  https://​www.geneva-​ academy.ch/​tb-​review-​2020/​selected-​contributions. 139 See Implementation of UN Treaty Body Concluding Observations:  The Role of National and Regional Mechanisms in Europe: Summary and Recommendations from a High Level Seminar held on 19–​20 September 2011 at the University of Bristol, United Kingdom, available at: http://​www2.ohchr.org/​english/​bodies/​HRTD/​ docs/​Summary_​Proceedings_​Bristol_​Sept2011_​24.10.2011.pdf. 140 Rodley, above n 3, 647.

PART IV

T HE GOV E R NA NC E OF HUMA N  R IG H T S

19 The High Commissioner for Human Rights Andrew Clapham

The Office of the UN High Commissioner for Human Rights is often confused with the UN Commission on Human Rights. The abolition of the Commission in 2006 and the creation of the Human Rights Council have now reduced the risk of such confusion, but the media and others are still inclined to blame the High Commissioner for any inaction or overreaction by governments in the UN’s human rights bodies. When one speaks of human rights at the UN, journalists and politicians quickly recall the controversies: how the UN elected Libya to chair its Commission in 2003; how the Council managed to commend Sri Lanka at the end of its civil war in 2009; how secret detention centres and the fate of people in Guantánamo are matters that receive no attention from the Council; how Israel is permanently on the agenda; and so on. But these decisions are taken by states, and successive High Commissioners have sought to downplay their links with the intergovernmental forum whether it was the Commission or the Council. At one point the High Commissioner even considered that it might be helpful to cultivate some sort of ‘constructive detachment’ from the Council. Not only is there little advantage for High Commissioners in being seen to be associated with the mood swings in that body, but there is a justifiable fear that the governments within it would like to develop their relationship with the High Commissioner into something resembling an executive board, exercising supervisory control and approving plans and projects in advance. In fact, the member states of the UN increasingly scrutinize the management and spending of the High Commissioner’s Office, in part to monitor how their resources are being used, and in part to rein in the secretariat when topics and projects are seen as dangerous. This results in a certain tension. This tension is to be expected. The High Commissioner’s Office is much more than the secretariat of the Council and the other UN human rights bodies. The High Commissioner’s Office conducts fact-​finding, engages with governments, develops policies for the UN system as a whole, monitors situations around the world, and the High Commissioner himself or herself often speaks out to condemn policies and practices. Inevitably this means suggesting a course of action for the member states and other parts of the UN system that those actors may be resistant to. This chapter traces the development of the Office and highlights some of its achievements while pointing to the obstacles that any High Commissioner has to overcome. We will also consider how the High Commissioner relates to the UN Secretary-​General and the particular role of the Secretary-​General in the field of human rights. While one can easily make the case for a division of labour between the

668  Andrew Clapham Secretary-​General and the High Commissioner, experience has shown that Secretaries-​ General will be confronted head on with the expectation that they will speak plainly on human rights. Where they feel this is not politically expedient, not only do they undermine the UN’s mission, but there may also be a temptation to discourage the High Commissioner, or indeed select a High Commissioner who will keep to a more diplomatic script, leaving key governments and leaders free from opprobrium.

19.1  Introduction: the creation of the Office of the High Commissioner for Human Rights The idea of a High Commissioner for Human Rights might seem rather obvious today. But the concept underwent decades of debate and morphed through various incarnations. The first suggestion for a UN high-​level official to defend human rights came from René Cassin in 1947. He was the French delegate to the 2nd Session of the UN Commission on Human Rights and made the suggestion in a letter addressed to the Chair of the Commission, Mrs Eleanor Roosevelt of the United States. For Cassin, and other international lawyers, such as Hersch Lauterpacht, the key to the implementation of the forthcoming Universal Declaration of Human Rights was to give the individual human being international legal personality and provide a complaint mechanism against states.1 Cassin had in mind a sort of Attorney-​General (Ministère Public) of human rights, who would assist those individuals whose cases had been rejected by the relevant United Nations political organs, and present the case ‘on appeal’ before a chamber of the International Court of Justice. Other ideas that followed in this vein were a UN ombudsman, and a full-​time paid chairman of the Commission. A few years later, in the 1950s, Uruguay introduced proposals for an Attorney-​ General, or High Commissioner for Human Rights, who would have taken up individual complaints with the relevant governments. This found little support until the idea was mentioned again in the 1963 Dag Hammarskjöld lecture at Columbia University by Jacob Blaustein.2 Based on recent historical research, it is likely that it was John Humphrey, then Director of the Human Rights Division at the UN, who was behind the conception of the High Commissioner that emerged in this speech.3 A series of non-​governmental meetings followed in 1964, organized in Paris, London,4 1 E/​CN.4/​AC.4/​1 (6 December 1947). ‘As the ‘Declaration’ is going to make the individual an active subject of international law—​just as the creation of the Nuremberg Tribunal did in the context of the prosecution of war crimes—​we should give this innovation practical meaning, something that states can accept at this point in the evolution of the law of nations.’ (trans by author). 2 J Blaustein, ‘Human Rights: A Challenge to the United Nations and to Our Generation’ in A W Cordier and W Foote (eds), The Quest for Peace: the Dag Hammarskjöld Memorial Lectures (New York: Columbia University Press, 1965)  328–​9. 3 A Hobbins, ‘Humphrey and the High Commissioner: The Genesis of the Office of the UN High Commissioner for Human Rights’ (2001) 3 Journal of the History of International Law 38, 47–​53. 4 According to Humphrey, the idea of a High Commissioner ‘[w]‌henever and however the idea was first conceived’ was ‘born at this meeting’, see Hobbins, ibid, 57. The London meeting was attended by Norman Acton (World Veterans’ Federation [WVF]), Peter Benenson (Amnesty International), John Humphrey, Sean MacBride (International Commission of Jurists [ICJ]), Norman Marsh (Director of the British Institute of International and Comparative Law), Georges Aronstein (Ligue belge pour la défence des droits de l’homme), Hilary Cartwright

The High Commissioner for Human Rights  669 and Geneva. From this last meeting there emerged a proposal for a draft General Assembly resolution. Much of the inspiration behind the mandate then envisioned was the creation of the High Commissioner for Refugees (and those aspects of that Office’s mandate that focused on the promotion of international standards). The following year, Costa Rica introduced a version of the draft resolution at the Commission of Human Rights. At this stage, there were no supervisory mechanisms at the United Nations, and the supporters of the idea saw the new post as someone who would collect information and monitor respect for the International Covenants on Human Rights (which were still being drafted at that time)—​not so much an avocat général as a general advocate of human rights, that is, someone who would promote human rights rather than someone granted specific legal authority to seek justice before an international court.5 The issue of a High Commissioner for Human Rights became caught up in the bloc politics that characterized the work of the UN General Assembly in the 1970s and 1980s, although there was a resolution tabled in 1977 on the establishment of such a post.6 It was only at the beginning of the 1990s, with the end of the Cold War, that the United Nations started to look at human rights in a more ambitious way, harnessing humanist ideas to achieve the UN’s goals, rather than seeing human rights as part of the ideological tension surrounding the Cold War. The Security Council was no longer paralysed by the threat of a veto, and the UN secretariat was given greater latitude to mediate peace agreements that went beyond a simple cease-​fire.7 This new openness meant the subsequent development of human rights mandates as part of UN peace-​keeping operations. Such a human rights presence within a UN peace-​keeping operation represented a completely new UN activity compared to the tired diplomatic exchanges in the political bodies which had come to characterize the UN’s human rights ‘action’. These new multidimensional UN operations went beyond traditional UN peacekeeping (where military personnel in blue helmets mostly monitored cease-​fires). The UN found a new role for itself in the 1990s in places such as Namibia, El Salvador, Guatemala, Cambodia, Haiti, the former Yugoslavia, Mozambique, and Angola. This role went beyond being a neutral observer between the parties. The UN began to verify the parties’ compliance with human rights norms. This was not simply an implied role in a bigger operation; specific human rights mandates were assigned to the field operations and (ICJ), James Knott (WVF) and Andrew Martin (Chairman, Human Rights Working Group of the Standing Conference in the Economic and Social Work of the UN). The future British Lord Chancellor, Lord Gardiner, attended the luncheon. 5 For further background, see R St J Macdonald, ‘A United Nations High Commissioner for Human Rights: The Decline and Fall of an Initiative’ (1972) 10 Canadian Yearbook of International Law 40; R Clark, A United Nations High Commissioner for Human Rights (The Hague: Martinus Nijhoff, 1972); T van Boven, ‘United Nations High Commissioner for Human Rights’ in D Forsythe (ed), Encyclopedia of Human Rights vol 5 (New York: OUP, 2009) 173–​82. 6 For detail see A Clapham, ‘Creating the High Commissioner for Human Rights: The Outside Story’ (1994) 5 European Journal of International Law 556, 557. 7 See the books by C Bell, Peace Agreements and Human Rights (Oxford: Oxford University Press, 2000) and On the Law of Peace: Peace Agreements and the Lex Pacificatoria (Oxford: Oxford University Press, 2008).

670  Andrew Clapham civilian, military, and police personnel were recruited to take on these new human rights tasks.8 At the same time, some of the barriers between the worlds of development and human rights started to disintegrate. Human rights were no longer necessarily something which was used to berate one’s political opponents at the international and national level. Officials in governments and in the UN started to see the utility of human rights norms and approaches. Human rights became not only a rallying cry, but also an organizing principle for countries in transition, or for states emerging from the ravages of civil war. For example, the first agreement between the warring parties in El Salvador was the 1990 San José Agreement on Human Rights. This agreement prefigured the peace agreement and became the building block for the eventual peace. Both sides agreed to the UN monitoring their human rights compliance, and, in the UN consciousness, human rights could be seen as providing solutions rather than creating problems, as unifying rather than divisive. By 1992 the United Nations had a new higher profile on the world stage. The Security Council had authorized the Gulf War against Iraq; the Rio Summit on the Environment and Development had brought together thousands of activists and captured media attention for global issues; Cambodia, Croatia, Bosnia, and the former Yugoslav Republic of Macedonia were hosting tens of thousands of blue-​helmeted UN peace-​keepers. There were great expectations placed on the UN. Significantly in the present context, a World Conference on Human Rights was being prepared for the following year (the first since Tehran in 1968). Many concerned with improving the UN system started to look again at the idea of a High Commissioner for Human Rights.9 The UN Secretary-​General of the time, Boutros Boutros-​Ghali was himself unenthusiastic about the prospect of a new high-​level official and its attendant staff,10 and thought that ‘[t]‌he very title “high commissioner” was a vestige of British colonialism and should be abandoned’.11 He told a delegation from the Carter Center ‘[t]here is no urgent need for such a position’; and, according to his memoirs, he was of the view ‘[i]t will waste money and arouse nationalist opposition.’ For Boutros-​Ghali such a post would ‘undermine the idea of “universal” human rights. Human rights are best 8 For some of the history and detail see B S Ugarte and J Genser, ‘Evolution of the Security Council’s Engagement on Human Rights’ in J Genser and B S Ugarte (eds), The United Nations Security Council in the Age of Human Rights (Cambridge: CUP, 2014) 3 and M Katayanagi, ‘UN Peacekeeping and Human Rights’, in the same volume 123. 9 Final Report of the NGO-​Forum (All Human Rights for All), UN Doc A/​CONF.157/​7 (14 June 1993) part II para 18, where the participants of the World Conference called for the General Assembly to ‘begin, as a matter of priority, consideration of the question of the establishment of a High Commissioner for Human Rights for the promotion and protection of all human rights.’ See also Amnesty International, ‘Facing Up to the Failures: Proposals for Improving the Protection of Human Rights by the United Nations’ (Report) (December 1992) AI Index IOR 41/​16/​92 and Amnesty International, ‘A High Commissioner for Human Rights: Time for Action’ (Report) (1 October 1993) AI Index IOR 41/​35/​93. 10 On the eve of the 1993 Vienna World Conference on Human Rights Secretary-​General Boutros-​Ghali wrote: ‘Both the principles and the practices of human rights are under stress. This is a time for serious discussion, for quiet diplomacy and step-​by-​step problem solving. Solutions cannot be imposed from the top down. Proposals for new bureaucracies, high-​level positions, more procedures and permanent forums, as admirable and well-​ intentioned as they are, may only arouse discontent and resistance at a time when liberality and leeway are called for. This is a year for dialogue.’ See B Boutros-​Ghali, ‘Democracy is the Guarantor of Human Rights’, Washington Post (9 June 1993) A19. 11 B Boutros-​Ghali, Unvanquished: A U.S.-​U.N. Saga (New York: Random House, 1999) 167.

The High Commissioner for Human Rights  671 advanced case by case . . . and without a big fanfare’.12 The prevalent historical optimism among states and NGOs nonetheless infused the discussions surrounding the preparations for the Vienna World Conference on Human Rights. It was increasingly felt there was a need for a new post, presented as a coordinator and moral authority, who would straddle the burgeoning human rights initiatives at the UN. The explosion of human rights mandates across the UN’s peace operations had normalized the presence of human rights at the UN. Negotiations in Vienna helped make the case for a new post that would ‘provide needed coordination to the disparate UN components now dealing with human rights.’13 The World Conference on Human Rights adopted the Vienna Declaration and Programme of Action in June 1993, and it recommended that the General Assembly consider the question of establishing a High Commissioner for Human Rights at its next session. Negotiations took place during October and November 1993, with various states presenting alternative texts in a highly charged atmosphere. It was quite clear that this new post had the potential to radically change the way that the UN dealt with human rights. The General Assembly achieved a consensus on the mandate in December 1993.14 One of the questions that now arose was what should become of the existing UN Centre for Human Rights? The Centre was the result of a previous attempt to boost the status of human rights in the Secretariat (from the ‘Division’ that preceded it). Delegates at the General Assembly in New York, however, were keen to create something new; they did not want the High Commissioner initiative to be simply an upgrade for the Head of the Centre from Assistant Secretary-​General to Under-​Secretary General. The time was ripe for a gesture that would reposition human rights in the overall structure of the UN. It was therefore decided that the High Commissioner would exercise ‘overall supervision’ over the Centre for Human Rights, but that both would remain distinct entities. The idea at the time was that the Office of the High Commissioner should not be burdened with the day-​to-​day management of the Centre. After it later emerged that ‘inadequate coordination and complementarity between the two entities hindered performance, diminished the impact of human 12 Ibid. 13 R Brody, ‘Improving UN Human Rights Structures’ in L Henkin and J L Hargrove (eds), Human Rights: An Agenda for the Next Century (Washington, DC:  American Society of International Law, 1994) 297, 304. For a historical background, see A Tikhonov, ‘The UN High Commissioner for Human Rights’ (1995) 1 Moscow Journal of International Law 21; see also Z Kedzia, ‘The United Nations High Commissioner for Human Rights’ in R Bernhardt and U Beyerlin (eds), Recht zwischen Umbruch und Bewahrung: Festschrift für Rudolf Bernhardt (Berlin: Springer, 1995) 436; F Gaer, ‘NGOs and the U.N. High Commissioner for Human Rights’ in International Human Rights Council, Human Rights, the United Nations, and Nongovernmental Organizations (Atlanta: Human Rights Program, 1997) 81; A  Clapham, ‘Creating the High Commissioner for Human Rights:  The Outside Story’ above n 6, and M Schmidt, ‘The Office of the United Nations High Commissioner for Human Rights’ in R Hanski and M Suski (eds), An Introduction to the International Protection of Human Rights: A Textbook (2nd edn, Turku: Institute for Human Rights, 1999) 169. Cf United Nations Department of Public Information, ‘Human Rights’ in Notes for Speakers: The United Nations at 50 (New York: United Nations, 1995) 56, where the UN includes only one paragraph on the High Commissioner, emphasizing on the ‘coordinator’ function: ‘[a]‌s overall coordinator and promoter of human rights at the highest political level—​the post of High Commissioner for Human Rights was created in 1993 with the intention of strengthening the coordination and impact of UN human rights activities.’ 14 GA Res 48/​141 (20 December 1992).

672  Andrew Clapham rights activities and resulted in a lack of appropriate coordination of related activities throughout the Organization’,15 the Centre and the Commissioner were integrated in 1997 into one single Office of the High Commissioner for Human Rights (OHCHR). The new High Commissioner, in Kofi Annan’s words, would henceforth ‘have a solid institutional basis from which to lead the Organization’s mission in the domain of human rights’.16 The High Commissioner was initially hosted in the regular UN Offices in Geneva, but in 1998 the Swiss Government handed the Palais Wilson to OHCHR. The Palais was the former seat of the League of Nations and the inaugural speeches signalled that the UN system was now recognizing the importance of human rights work.17

19.2  The High Commissioner for Human Rights The Office of the High Commissioner for Human Rights (OHCHR) is headed by the High Commissioner with the UN rank of Under-​Secretary-​General. The General Assembly decided that the Commissioner shall be ‘a person of high moral standing and personal integrity and shall possess expertise, including in the field of human rights, and the general knowledge and understanding of diverse cultures necessary for impartial, objective, non-​selective and effective performance of the duties of High Commissioner’.18 The High Commissioner is ‘appointed by the Secretary-​General of the United Nations and approved by the General Assembly (GA), with due regard to geographical rotation’, for a fixed term of four years with a possibility of one renewal.19 The first High Commissioner for Human Rights, Ambassador José Ayala-​Lasso, a former Ecuadorian Foreign Minister, had been Ecuador’s Ambassador at the United Nations and had chaired the GA Working Group which eventually drafted the mandate of the High Commissioner for Human Rights. He therefore considered he had a special grasp of what governments would accept from this post and what they considered the limits of the powers of this new high-​level official. The first High Commissioner, however, only stayed in his post for three years and the ease with which he felt able to take up the post of Minister of Foreign Affairs for Ecuador suggested to some observers the first High Commissioner for Human Rights had never really shed his diplomatic skin.20 International human rights organizations expressed disappointment over his patchy record. While there had been progress in establishing field offices in trouble spots, it was felt that José Ayala-​Lasso had failed to confront human rights violators head on.21 15 Renewing the United Nations: A Programme for Reform, UN Doc A/​51/​950 (14 July 1997) paras 197–​8. 16 Ibid, para 79. 17 ‘[L]‌es Nations Unies prennent l’engagement solonnel d’en faire véritablement la Maison et le Havre des droits de l’homme.’ See UN Press Release DSG/​SM/​8 HR/​4365 (5 June 1998). High Commissioner Mary Robinson, would later refer to the Palais as a ‘home for human rights’. 18 GA Res 48/​141, para 2(a). 19 Ibid, para 2. 20 See, for example, P Alston, ‘Neither Fish nor Fowl: The Quest to Define the Role of the UN High Commissioner for Human Rights’ (1997) 8(2) European Journal of International Law 321. 21 Amnesty International, ‘Next High Commissioner for Human Rights must confront human rights abusers’ (Press Release) (21 February 1997) AI Index IOR 40/​05/​97; Amnesty International, ‘Agenda for a New United

The High Commissioner for Human Rights  673 In June 1997, Secretary-​General Kofi Annan appointed the former President of Ireland, Mary Robinson, as the second High Commissioner for Human Rights. This was a bold choice and widely heralded in the press and among human rights activists, who saw her appointment as a shot in the arm for the human rights programme at the UN.22 Robinson arrived at a crucial time, just as the Office of the High Commissioner and the Centre for Human Rights were being consolidated. She set out a number of new policies,23 and was able to raise the profile of the human rights programme within the UN and outside. This generated some opposition. Her speaking up was seen in some quarters as being outspoken. In the words of David Forsythe, ‘the second High Commissioner was so assertive that she raised questions about whether her activism was matched by enough diplomatic acumen. This critique was somewhat ironic, given that the first High Commissioner, Mr Ayala Lasso of Ecuador, had raised questions about whether he was too diplomatic and not assertive enough.’24 Robinson took on the situation in Chenya, made multiple trips to China,25 raised questions about Tibet, and reminded all parties in the context of Kosovo of the need to respect proportionality with regard to civilian casualties. This outspokenness was not always welcome at the UN. For this last intervention on Kosovo she received a reprimand from the Secretary-​General.26 Following the September 11 terrorist attacks on the United States, Robinson found herself under attack for criticizing the subsequent US treatment of detainees in Guantánamo and the effects of the intervention in Afghanistan. In her memoire she recounts: A significant sector felt it was inappropriate to criticize the US in any way, given the terrible events that had occurred, journalists asked me why I would jeopardise my UN job by speaking out so forcefully. I replied that this was the job, it was better to do the job than to keep it. But it was a lonely position; few official voices were publicly beating the same track.27

In 2002, Mary Robinson was replaced by Sérgio Vieira de Mello, a Brazilian who had worked for most of his career with the UN in many guises:  starting with the High Commissioner for Refugees, and then playing a role in several demanding peace operations. Vieira de Mello had previously been appointed to various high–​level UN Nations High Commissioner for Human Rights’ (Report) (14 April 1997) AI Index IOR 40/​08/​97; Human Rights Watch, World Report 1995 (New York: Human Rights Watch, 1994). 22 B Pisik, ‘New Rights Leader Faces Tough Job’, Washington Times (15 September 1997) A12, describing Mrs Robinson as ‘the feisty former lawyer and women’s rights advocate, who will bring star power to the overlooked human rights efforts, much as Japan’s Sadako Ogata did to revitalize the U.N. refugee programme’. 23 For a volume of the key papers and an accompanying analysis see K Boyle (ed), A Voice for Human Rights—​ Mary Robinson (Philadelphia PA: University of Pennsylvania Press, 2005). 24 D Forsythe, Human Rights in International Relations (Cambridge: Cambridge University Press, 2000) 65. 25 For analysis see S Kleine-​Ahlbrandt, ‘The High Commissioner, OHCHR, and China 1998–​2005: Challenges and Achievements’, in F Gaer and C Broecker (eds), The United Nations High Commissioner for Human Rights: Conscience of the World (Leiden: Nijhoff, 2014) 269–​91. 26 M Robinson, Everybody Matters: A Memoire (London: Hodder and Stoughton, 2012) 230. 27 Ibid, 268.

674  Andrew Clapham posts. He had been the Under-​ Secretary-​ General for Humanitarian Affairs, the Special Representative of the Secretary-​General in Kosovo, and the UN Transitional Administrator in East-​Timor. At the outset, he emphasized the need to strengthen the rule of law and assert the universality of human rights, but from day one the media badgered him to find out what style he would adopt. One journalist asked early on: ‘From what you have said so far, it would seem that you were going to take a slightly lower profile than your predecessor, maybe relying less on the criticism and more on behind the scenes persuasion. Am I correct in that statement?’28 Vieira de Mello’s response was as follows: ‘I will not reply by yes or no, but I will reply very briefly. Judge me on the basis of results, not on style.’29 But the post is more than senior management, it demands that the incumbent use their personality and charisma to face down governments and be there for victims of human rights. In a conference on the first ten years of the Office of the High Commissioner, Harold Hongiu Koh quipped that, in a decade of existence, no one had explicitly drawn up the High Commissioner’s ‘job description’ and that, following Woody Allen’s line that ‘90 percent of life is just showing up,’ he suggested that the post had been created in 1993 because the ‘international community needed someone whose job it was to show up in ‘human rights hot spots’.30 He went on to suggest that Vieira de Mello should ‘show up’ and use his photogenic looks and persuasiveness to become known around the world as the face of human rights. However, less than a year after being appointed High Commissioner, Vieira de Mello was asked by the Secretary-​General Kofi Annan to serve in Iraq as his Special Representative. Vieira de Mello took on the assigned task and made some early progress.31 He had succeeded in bringing a number of Iraqi leaders together and establishing nascent human rights programmes when, on 19 August 2003, he and twenty-​one others were killed, and over 100 injured, as the result of a massive bomb. The explosives were concealed in a truck which was driven up to the side of the Baghdad UN Headquarters. It seems that Vieira de Mello and the UN were both targets. The Al Qaeda leadership told the bomber that Sérgio Vieira de Mello was being targeted as he was ‘the person behind the separation of East Timor from Indonesia and who was also the reason for the division of Bosnia and Herzegovina.’32 One of those involved in the plot was subsequently executed by the Iraqi authorities. During his all-​too short tenure, Sérgio Vieira de Mello, inspired many around him and around the world with his enthusiastic dedication to the purposes of the 28 Bilingual Transcript of Press Conference given by Sérgio Vieira de Mello, the New High Commissioner for Human Rights at the UNCHR (20 September 2002). 29 Ibid. 30 H Koh, ‘A Job Description for the High Commissioner for Human Rights’ (2004) 35 Human Rights Law Review 493, 494; ten years later Koh suggested that the focus need no longer be on the person and should be on building up the Office ‘The UN High Commissioner for Human Rights: From the Personal to the Institutional’, in Gaer and Broecker, above n 25, 44–​61. 31 For more detail on this and Vieira de Mello’s approach to human rights see M Rishmawi, ‘Sérgio Vieira de Mello’ in D Forsythe (ed), Encyclopedia of Human Rights vol 5 (New York: OUP, 2009) 279–​82; S Malcomson, Generation’s End: A Personal Memoir of American Power After 9/​11 (Washington, DC: Potomac, 2010) Chap V. 32 S Power, Chasing the Flame:  Sergio Vieira de Mello and the Fight to Save the World (New  York:  Penguin, 2008) 514.

The High Commissioner for Human Rights  675 United Nations and the UN itself.33 In a posthumously published piece, his appeal for rethinking approaches to security remains apposite: Dysfunctional definitions of security have revealed their inutility in the current crisis. At present, the long-​suffering people of Iraq are bearing the pain, first of war, now of a contested and contentious peace. It has to be apparent that the time has arrived for all states to redefine global security –​to put human rights at the center of this concept. In doing so, all nations must exercise their responsibility in a way commensurate with their strength. Only then will responsible states, rather than the merely strong powers, be able to bring lasting stability to our world.34

Following the killing of Sérgio Vieira de Mello, Bertrand G Ramcharan was appointed Acting High Commissioner. Ramcharan, a life-​long member of the UN Secretariat then Deputy High Commissioner, threw himself into the role and has produced a prodigious number of publications on the High Commissioner’s role and the challenges of anchoring the Office in the UN system.35 He focused on developing the role and significantly produced emergency reports on Liberia, Darfur, and Iraq.36 In July 2004, Louise Arbour was appointed as the new High Commissioner for Human Rights. A Canadian national, Louise Arbour had already had a distinguished judicial career in her home country and had been working as the Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda. As a former judge and international prosecutor Arbour brought her own style to the post. She chose to file amici briefs before the United States Supreme Court with regard to detention in Guantánamo, before the Iraqi High Tribunal on the death penalty, and before the International Criminal Court on investigations in Darfur. She also worked with her staff to develop the human rights dimension of transitional justice and the UN’s development operations.37 Arbour’s plain speaking prosecutorial style often left governments feeling defensive, while civil society applauded her confrontations. In July 2008, Navanethem (Navi) Pillay replaced Louise Arbour. Navi Pillay had struggled under apartheid to work as a lawyer and had later been nominated by Nelson Mandela as the first woman of colour to the South African High Court (formerly the 33 See the detailed and thoughtful account by Power, ibid. 34 S Vieiro de Mello, ‘Only Member States Can Make the UN Work’ (2004) 1 SUR International Journal of Human Rights 161, 164. 35 See generally The United Nations High Commissioner for Human Rights:  The Challenges of International Protection (Leiden: Martinus Nijhoff, 2002); A UN High Commissioner in Defence of Human Rights: No Licence to Kill or Torture (Leiden: Martinus Nijhoff, 2004); ‘The United Nations High Commissioner for Human Rights and International Humanitarian Law’ (2005) 3 Humanitarian Policy and Conflict Research: Occasional Paper Series 1–​51; The Security Council and the Protection of Human Rights (Leiden: Martinus Nijhoff, 2002). Human Rights Protection in the Field (Leiden: Martinus Nijhoff, 2006); The UN Human Rights Council (London: Routledge, 2011). 36 ‘Operationally, I was determined to establish the precedent that the High Commissioner could submit emergency reports to the Commission on Human Rights. This, I considered, must be an integral part of the protection armoury of the High Commissioner.’ See B Ramcharan, The Quest for Protection: A Human Rights Journey at the United Nations (Geneva: The Human Rights Observatory, 2006) 194–​5. 37 See especially L Arbour, ‘Economic and Social Justice for Societies in Transition’, 40 International Journal of Law and Politics (2007–​2008) 1; M Darrow and L Arbour, ‘The Pillar of Glass: Human Rights in the Development Operations of the United Nations’ (2009) 103 American Journal of International Law 3, 446.

676  Andrew Clapham Supreme Court).38 Pillay was later elected as a judge to the International Criminal Tribunal for Rwanda and served as its President. Before becoming High Commissioner she had been serving as a judge on the International Criminal Court. At the time of Pillay’s nomination, some human rights groups feared that she would be more low-​ key than her predecessor. Kenneth Roth from Human Rights Watch stated that ‘One challenge for Judge Pillay will be to find a public voice that as a judge she was never called upon to have.’39 Navi Pillay has suggested that she uses ‘an “instinctive” blend of quiet diplomacy and public condemnation to highlight violations worldwide;’40 High Commissioner watchers on the diplomatic circuit quickly settled down into repeating the mantra, ‘with Arbour we had a prosecutor, now what we need is a judge.’ Of course with Pillay the UN not only had a judge but a defender, and Pillay’s instinct was to stand up for the victims of human rights violations and denounce the violators. While different constituencies inevitably complained that she was too critical of some countries and not critical enough of others, her strong line on the ‘Arab Spring’, and her firm but fair approach across the board with all governments brought her enough support that she was renewed for two years in 2012. Nevertheless, before and after her renewal, Pillay had to face down representatives from member states seeking to slow the developing autonomy of the Office. When the High Commissioner presented the 2010–​11 Strategic and Management Plan before the Human Rights Council, several state representatives claimed that she should have consulted with the Council before the finalization of the document. Navi Pillay clarified her conception of the operational independence of the OHCHR: I believe that the OHCHR and the Human Rights Council can and should work closely together to better promote and protect human rights. Genuine and constructive engagement and cooperation between my office and the Council with respect to our respective mandates . . . is fundamentally important . . . Yet, may I take the liberty to point out that engagement and cooperation is quite distinctive from oversight. In this regard, I believe that, while there should be clarity and transparency in what the office is doing and how it intends to do it, this cannot be transformed into a formal process of oversight. However I am confident that an atmosphere of trust is now shaping up and that information sharing has become the rule rather than the exception. Lastly, I once again state that my office is a department of the UN Secretariat and its reporting obligations to the Secretary General and to the General Assembly are clear to this regard.41 38 For an account of her early years by Navi Pillay herself see D Terris, C Romano, and L Swigart, The International Judge: An Introduction to the Men and Women Who Decide the World’s Cases (Oxford: OUP, 2008) at 39–​48; see also S Naidu, Navi Pillay: Realising Human Rights for All (London: Arcadia Books, 2010). 39 E Gootman and M Simons, ‘South African Favored for U.N. Post on Human Rights’, New York Times (19 June 2008). 40 ‘Interview: CIA Probe must Go to Highest Level; U.N. Rights Boss’ Reuters (28 August 2009). 41 N Pillay, comments and answers to the Human Rights Council, 14th Session, 7th Plenary meeting, 4 March 2010 (transcription by the author, video available online at http://​www.un.org/​webcast/​unhrc/​archive. asp?go=100304). This issue came around again in the Joint Inspection Unit Report prepared by G Achamkulangare, JIU/​REP/​2014/​7 and countered in a response by the Secretary-​General, A/​70/​68/​Add.1, 19 March 2015.

The High Commissioner for Human Rights  677 In 2014 Zeid Ra’ad Al Hussein of Jordan (Zeid) was appointed as the next High Commissioner. He was serving as Jordan’s Permanent Representative to the UN in New York and had previously served as Jordan’s Ambassador to the United States. He played a key role during the drafting of the Rome Statute for the International Criminal Court and served as the first President of its Assembly of States Parties. He had earlier served as a political affairs officer in the UN peace-​keeping operation UNPROFOR in the former Yugoslavia, and later worked on peace issues for with Secretary-​General Kofi Annan, publishing a key report on sexual abuse by peace-​keepers in 2005.42 Zeid quickly established a reputation as an eloquent speaker and ventured into realms that many would have considered ‘off limits’. He criticized candidate Trump and a number of other western politicians for the way their ideas could translate into concrete threats to the human rights they sought to vilify.43 As a Muslim he also took aim with particular acuity at the atrocities and policies orchestrated by what he called the ‘takfiri leadership of what is also known as ISIL, ISIS or Da’ish’.44 By labelling the leaders of ISIS as takfiri he was suggesting that their doctrine is based on simply branding their opposition as apostates. Furthermore he started to widen the scope of his analysis referring to the Taliban, Boko Haram, Jabhat al-​Nusra, and ISIS, and stating: They show the same callousness, disregard for life, and complete distortion of what Islam is. Once that is recognized, work can begin on creating the right framework for combating their ideology. A better understanding will also prevent the more populist politicians from whipping up anti-​Islamic sentiment; overreaction only feeds the takfiri cause.45

19.3  The organization of the Office of the High Commissioner for Human Rights Twenty-​five years after it was first created, the Office now has over 1,000 staff, with as many staff in Geneva as in the field. The concerns of governments now focus less on whether the High Commissioner will speak out or engage in quiet diplomacy; the focus is more on how the governments’ financial contributions are being spent, how priorities are being set, and the quality of the management of the Office. A series of

42 ‘A comprehensive strategy to eliminate future sexual exploitation and abuse in United Nations peacekeeping operations’, A/​59/​710, 24 March 2005. 43 See, for example, ‘Donald Trump I ‘Dangerous’ for Global Stability, U.N. Rights Chief Says’, N Cumming-​ Bruce, New York Times, 12 October 2016; ‘Trump attacking freedom of the press: UN rights boss’ S Nebehay, Reuters, 30 August 2017. 44 See, eg, Statement to the Security Council on Iraq, 18 November 2014, available at: http://​www.ohchr.org/​EN/​ NewsEvents/​Pages/​DisplayNews.aspx?NewsID=15311. 45 The Washington Institute, 16 December 2016. ‘The Battle of Ideas 2.0:  Combating ISIS Ideology at Home and Abroad’ available at http://​www.washingtoninstitute.org/​policy-​analysis/​view/​ the-​battle-​of-​ideas-​2.0-​combating-​isis-​ideology-​at-​home-​and-​abroad.

678  Andrew Clapham harsh UN reports castigated the Office and forced introspective studies and management change.46 Pillay presided over the development of six ‘thematic strategies’, with each one being judged against eleven ‘expected accomplishments’, all assessed alongside eight Global Management Outputs aimed at improving the Office’s efficiency. The detail can be found in the Annual Reports and the Management Plans. One now finds evidence of a professionalized complex operation, surprisingly focused on ‘results based management’, and ‘targets’ set out for each ‘expected accomplishment’. It might be tempting to dismiss all this as fashionable management-​consultant mumbo jumbo, but states as donors expect not only transparency, but also a sense that this money is being well-​spent. As we shall see, the sums are fairly considerable. The Annual Reports and Management Plans catalogue the progress made by the Office, but emphasize that human rights crises are rarely resolved in a neat two-​year financial cycle, and that it is hard to budget for spontaneous spring revolutions, vicious crackdowns, or the eruption of ethnic conflicts. Nevertheless the annual reports include tables of ‘expected accomplishments’ and ‘achievement of targets’.47 The High Commissioner’s annual and biennial reports explain in detail the activities, spending and sources of income. They are a far cry from the annual reports of Amnesty International or Human Rights Watch. These and similar NGO reports take the reader country by country through the human rights violations recorded over the year. The High Commissioner’s annual reports actually report on spending and activity not on governments human rights records. The longstanding idea of a ‘UN World Report on Human Rights’, prepared by the High Commissioner, is no longer seriously proposed. Many today would accept how difficult it would be to engage in such a comparative catalogue of abuses without being inevitably accused of bias, or unevenness, with deleterious consequences for funding and co-​operation. Instead, the advent of the Universal Periodic Review by the Human Rights Council (with the unexpected 100 per cent participation by UN member states in the first round) has meant that OHCHR does prepare background information based on existing UN recommendations and reports on each and every country. We will return to explain this activity in more detail below).48 The Office of the High Commissioner now appears as a complex operation, working on a wide range of human rights issues across the globe. It has priorities and targets, and looks very different from the ‘Attorney-​General’ envisaged in the 1940s. Nevertheless we should not lose sight of the fact that Office is more than a series of programmes. 46 A Gonzalez, ‘Management Review of the Office of the United Nations High Commissioner for Human Rights’ (Geneva, 2003), JIU/​REP/​2003/​6 at vi para G; see also See Management review of the Office of the United Nations High Commissioner for Human Rights, A/​57/​488. 21 October 2002. More recently the JIU has focused on geographical distribution among the staff: JIU/​REP/​2006/​3, JIU/​REP/​2009/​2; UN Doc A/​64/​203 ‘Efficiency of the implementation of the mandate of the Office of the United Nations High Commissioner for Human Rights’, 30 July 2009. 47 See eg OHCHR Report 2016, 144–​52. 48 For easy access to the UPR country reports see http://​www.ohchr.org/​EN/​HRBodies/​UPR/​Pages/​ Documentation.aspx; for an index which can be searched by human right see the universal human rights index http://​uhri.ohchr.org/​en.

The High Commissioner for Human Rights  679 The original idea of a high-​level advocate for human rights still permeates the way the Office operates. The 2014–​2017 management plan included the following section: The High Commissioner’s advocacy role is central to the fulfilment of the OHCHR mandate. OHCHR leads global human rights efforts and speaks out objectively in the face of human rights violations worldwide. The Office provides a forum for identifying, highlighting and developing responses to today’s human rights challenges and acts as the focal point of human rights research, education, public information and advocacy activities in the United Nations system.49

Let us now turn to look in more detail at the structure and budget of the Office. The High Commissioner, the Deputy High Commissioner, and the Assistant Secretary-​ General for Human Rights (in New York) lead the Office in a constellation known in some circles as the ‘Troika’. The operational and functional support is provided by various Divisions and Branches. The development of these separate Divisions can be traced back to serious criticism of the way the human rights programme had developed in the 1980s. By the early 1990s, both before and after the creation of the High Commissioner, it was already apparent that the Centre for Human Rights was going through a major administrative crisis.50 The UN’s supervisory bodies had emphasized that ‘a growing proportion of the Centre’s staff resources are involved in Secretariat servicing at the expense of research and technical analysis, which is often undertaken by consultants and short-​term experts’.51 The Division dealing with development, economic and social issues as well as the rule of law and equality has developed as a response to such criticism.52 Today this Division engages in ‘human rights research and advocacy work and contributes to country level implementation’.53 The Special Procedures Branch provides the Council’s fact-​finding special procedures mechanisms with research, analysis, and legal expertise. This includes working on around 150 reports a year and covering the hundreds of communications sent out by the expert special procedures of the Human Rights Council.54 The Office’s relationship with these experts has its own inbuilt tension. The mandate holders are experts (often at the peak of their careers) who have volunteered to dedicate time out from their professional lives. They work ‘part-​time on a pro bono basis’ and expect support from the staff in the Office along with appropriate budgets to carry out country visits and other missions. The work of these rapporteurs continues to attract considerable media 49 OHCHR 2014–​2017 Management Plan, 23. 50 On what turned out to be a doomed ‘Management Planning, Monitoring, Evaluation and Co-​ordination’ proposal, see Report of the United Nations Office of Internal Oversight Services, UN Doc A/​49/​892 (26 April 1995) especially para 39. 51 Ibid, paras 11 and 12. See also Advisory Committee on Administrative and Budgetary Questions, First Report on the Proposed Programme Budget for the Biennium 1996–​1997, UN Doc A/​50/​7 (9 August 1995) part VI.5. 52 Report of the Secretary-​General, Programme Budget for the Biennium 1996–​1997: Restructuring the Centre for Human Rights, UN Doc A/​C.5/​51/​71 (18 June 1996). 53 OHCHR Report 2016 (electronic chip full version) 279—​88, 279. 54 Ibid, 309–​21.

680  Andrew Clapham interest, often riling the governments who are targeted, and, in turn, sometimes raising questions about their relationship with the High Commissioner and the Secretary-​ General. It is quite possible that the High Commissioner and the Secretary-​General might have chosen a different approach, but on the whole the High Commissioner recognizes the independence of the rapporteurs, even though they are often reported as speaking for the UN. Despite the embarrassment that a Special Rapporteur can potentially cause for a government, more and more states are agreeing to standing invitations to the special mechanisms. One hundred and seventeen states had offered such an invitation by 2016.55 This must be due in part to a recognition that governments are judged in part by their willingness to co-​operate with the Special Rapporteurs, and in part due to the rather detailed and constructive recommendations developed by the various mechanisms, which in turn are often followed up by the Office itself.56 The Human Rights Council Branch now not only deals with the regular work of the Council, but also deals with the massive workload resulting from the creation of the Universal Periodic Review (UPR). This involves the preparation, for each of the 193 member states of the UN, of two background reports. Following the review in the Council, the secretariat in this Branch then writes a draft report containing a summary of the questions and answers which made up the review along with the recommendations. This report is usually expected within two days of the actual review in order that it can be scrutinized and adopted within the week. All this demands trained human rights officers and considerable oversight from the senior staff. Remarkably, every state in the world has now been reviewed and been the subject of recommendations proposed by a selection of other states (some of these reviews have been more meaningful than others). Perhaps more important, in the present examination of the work of the Office, is to recall that the Office has now compiled two ten-​page reports on every UN member state. The first report contains recommendations by the UN’s special procedures and treaty bodies along with other relevant UN documents. The second consists of a compilation of material from non-​governmental organizations. This synthetic work is essentially a summary (and of course relatively sanitized) guide to the human rights situation in every state in the world. In effect, as already suggested above, these represent chapters of a sort of virtual world human rights report by the UN. We have left behind the situation where the UN’s human rights programme could go for decades without giving any consideration at all to dozens of states (some very small—​some very powerful) and the people who live there. Of course cataloguing the existing recommendations and problems is one thing, and a good start, but mobilizing the resources to be able to ensure meaningful follow-​up by the Office in each and every state remains an enormous challenge for the decades to come.

55 OHCHR Report 2016, 12. 56 For an explanation of the work of the Rapporteurs, see OHCHR, Human Rights Fact Sheet No. 27, Seventeen Frequently Asked Questions about United Nations Special Rapporteurs (Geneva: Office of the UN High Commissioner for Human Rights, 2001).

The High Commissioner for Human Rights  681 The Human Rights Treaties Branch deals with planning and preparation of meetings of the treaty bodies. There is a constant tension between the Office and the 172 expert members of the treaty bodies with regard to the perceived lack of institutional support offered by the Office. Like the special procedures, the members of the treaty bodies are unpaid and expected to give up several weeks a year to examine reports and complaints. In the light of the relative success and popularity of the Universal Periodic Review, these treaty bodies now sometimes struggle to receive sustained attention from the States parties.57 The complaints that come into the UN under the procedures established by the various treaties have to be processed by the Office. In the past few years there has been an expansion of the possibilities for individuals to complain under the UN treaties, and we can only expect this work to increase dramatically. For the moment it remains a mystery as to why the UN treaty bodies receive so few complaints, considering first, that so many of the treaties now allow for individuals to bring their cases, and second, that so many states have accepted the various procedures. One obvious explanation may be that the mechanisms are simply unknown around the world, compared to, say, the European Court of Human Rights. At the end of 2016 there were 1,215 individual communications pending before the UN treaty bodies,58 compare this to the almost 80,000 cases pending before the European Court of Human Rights. The Field Operations and Technical Cooperation Division is responsible for providing what is generally called ‘capacity building.’59 The Division oversees the Office’s multiple field offices and presences. In 2016 OHCHR had ‘14 country or stand-​ alone offices which are composed of thirteen offices in: Bolivia, Burundi, Cambodia, Colombia, Guatemala, Guinea, Honduras, Mauritania, Mexico, the State of Palestine, Tunisia, Uganda, and Yemen, as well as one field-​based structure in Seoul covering the Democratic People’s Republic of Korea.’60 In addition the Division is responsible for regional offices and centres, human rights components of UN peace-​keeping missions and special political missions, as well as the deployment of human rights advisers in UN country teams. In 2016 there were twelve regional presences: East Africa (Addis Ababa), Southern Africa (Pretoria), West Africa (Dakar), South-​East Asia (Bangkok), the Pacific (Suva), the Middle East and North Africa (Beirut), Central Asia (Bishkek), Europe (Brussels), Central America (Panama City), South America (Santiago de Chile), a subregional Centre for Human Rights and Democracy for Central Africa (Yaoundé) and a Training and Documentation Centre for South-​West Asia and the Arab Region (Doha). At the end of 2016 the Office had 1,179 staff with 44 per cent in the field and the rest in Geneva (53 per cent) and New York (3 per cent). In addition, the UN had 800 human

57 See further C Tomuschat, ‘Universal Periodic Review:  a New System of International Law with Specific Ground Rules’ in U Fastenrath, R Geiger, D-​E Khan, A Paulus, S von Schorlemer, and C Vedder (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford: OUP, 2011) 609–​28. 58 OHCHR Report 2016, 290. 59 For a detailed account of these activities, see further below. 60 OHCHR Report 2016, 158 (footnote omitted).

682  Andrew Clapham rights officers in UN peace missions or political offices. The regular budget for that year was about $100m and voluntary contributions were around $130m.61 The OHCHR regular budget represents about 3 per cent of the UN budget.

19.4  The activities of the High Commissioner for Human Rights The High Commissioner’s mandate is the result of the complex negotiating process before, during, and after the Vienna Conference leading to the adoption of Resolution 48/​ 141. In contrast to previous human rights battles at the UN, the member states were able to agree that the High Commissioner would work on all human rights issues. The establishment of the High Commissioner was considered a way to redress the historical imbalance in the UN’s human rights programme. So development and economic issues were to be given as much attention as civil and political rights. Although the paragraph which would have ensured that the High Commissioner specifically ‘recognize the importance of promoting a balanced and sustainable development for all people without conditions’ was in the end not included (mostly because of the West’s insistence on conditionality in development aid), the right to development was referred to four times including two paragraphs in the actual mandate of the Commissioner.62 The result was that the new post represented something of a departure as it clearly arose out of an accord that no set of rights deserves priority over other sets of rights. For the rest, resolution 48/​141 represents a marvellous example of a negotiated text that answers everyone’s desires and avoids resolving any differences. No activity for the High Commissioner is specifically prohibited. Attempts to enumerate priority areas such as women’s rights were thwarted due to a sense that listing special topics would result in a process whereby each government simply listed their pet subject in the human rights debate. The other key text is the 1997 Bulletin of the UN Secretary-​General which stated that OHCHR: a) Promotes universal enjoyment of all human rights by giving practical effect to the will and resolve of the world community as expressed by the United Nations; b) Plays the leading role on human rights issues and emphasizes the importance of human rights at the international and national levels; c) Promotes international cooperation for human rights; d) Stimulates and coordinates action for human rights throughout the United Nations system; e) Promotes universal ratification and implementation of international standards; f) Assists in the development of new norms; 61 OHCHR Report 2016 at 60. Note the (approximate) figures for expenditure by the Voluntary Fund for Victims of Torture—​$8m, Voluntary Fund for Indigenous Populations—​$0.5m, and the Trust Fund on Contemporary Forms of Slavery $0.7m; the Voluntary Find for Technical Cooperation. $13m. 62 GA Res 48/​141 (20 December 1993), paras 3 c) and 4c); see also preambular paras 3, 4, 16.

The High Commissioner for Human Rights  683 g) Supports human rights organs and treaty monitoring bodies; h) Responds to serious violations of human rights; i) Undertakes preventive human rights action; j) Promotes the establishment of national human rights infrastructures; k) Undertakes human rights field activities and operations; l) Provides education, information advisory services and technical assistance in the field of human rights.63 While the resolution and the Bulletin leave the High Commissioner the maximum freedom to take initiatives and select priorities, this of course represents a formidable challenge. Each policy decision is scrutinized by governments for its compatibility with their foreign policy aims. Even after the end of the Cold War, different governments have different priorities. Apart from the obvious pressures to speak out against certain governments, different blocs prioritize different themes. Emphasis on asylum seekers, the death penalty, discrimination on grounds of sexual orientation, democracy, or civilian casualties in the ‘war on terror’, will garner different reactions from different states. Resources dedicated to the right to development are carefully monitored. New human rights policies addressed to activity at the World Bank or the World Trade Organization will inevitably trigger divisions. Almost any position will satisfy some governments and annoy others. The ‘united nations’ remain divided. Even if all governments are now in theory committed to realizing human rights, how this is to be done remains controversial in the context of the globalization debate, the use of military force with civilian casualties, the protection of indigenous peoples’ rights, and increasing inequality between rich and poor. Human rights remain subversive and highlight the misuse of governmental power. Most governments are aware that human rights criticism can force them to change the rules concerning political participation, access to resources, and access to justice. Such changes can threaten any one group’s hold on power, and will not be easily embraced at all costs. Governments often perceive progress on human rights as handing unnecessary opportunities to the internal opposition and their enemies abroad. As explained above, considerable effort has been made to move away from doing everything everywhere and focus on six thematic priorities and developing accompanying strategies.64 The extent to which the Office is achieving success in its strategies can be gleaned from the Annual Reports and Management Plans. These priorities are not set in stone and the priorities in 2017 are very different from those outlined in 1994 and will be different from those determined around the 50th anniversary of the Office in 2043. It seems here more appropriate to look back and examine progress on the four ideas which lay at the heart of the drive to create the post of High Commissioner: (1) 63 ST/​SGB/​1997/​10 (15 September 1997), para 2(1). 64 1. Strengthening international human rights mechanisms; 2. Enhancing equality and countering discrimination; 3. Combating impunity and strengthening accountability and the rule of law; 4. Integrating human rights in development and the economic sphere; 5. Widening the democratic space; and 6. Early warning and protection of human rights in situations of conflict, violence and insecurity. Management Plan 2014–​17, 28.

684  Andrew Clapham the need to openly address violations, (2) technical co-​operation, (3) system-​wide coordination and mainstreaming, and (4) rapid response and the establishment of field operations.

(a)  The need to openly address violations Over the years, the ability and willingness of governments to remain silent in the face of human rights crises gave succour to oppressive regimes such as those of Idi Amin, Pol Pot, Saddam Hussein, and Muammar Gaddafi. States meeting at the UN limited themselves to debating the principles rather than speaking up about the violations. Since the 1990s, the Commission, the Human Rights Council and the General Assembly have passed more condemnatory resolutions than ever before—​yet some governments are still able to avoid censure due to their political and economic muscle or their ties to powerful states. The strength of the post of High Commissioner is that he or she, as an independent official, by contrast, largely has the power to speak up strongly in condemnation of human rights violations, regardless of any intergovernmental support. As already discussed, different High Commissioners have risen to that challenge in very different ways, but it is fair to say that, on the whole, High Commissioners have been relatively vociferous in confronting particularly grave human rights violations, even in the face of big power interests. However, this special profile raises complicated dilemmas: when, how and why should the High Commissioner, amidst an ocean of human rights violations, denounce certain violators rather than others?65 A good early example of a government avoiding condemnation concerns is the way in which the actions of the Russian army in Chechnya, including considerable loss of life for the civilian population, were met with a deafening silence at the United Nations. Obviously the Russian veto at the level of the Security Council means that the issue was unlikely to be addressed by that organ. But the influence of powerful states extends beyond their formal voting power, and the member states of the UN Commission on Human Rights only managed to adopt a weak consensus statement. This surely was a case where the High Commissioner could rise above the political horse-​trading and voice the concern of humankind. The human rights violations in Chechnya did prompt José Ayala-​Lasso in 1995 to send a special envoy to Russia. Instead of using a UN civil servant, the High Commissioner used a member of the UN Human Rights Committee as his envoy. Some non-​governmental organizations expected that sending an envoy from a human rights treaty body, rather than choosing someone from the UN’s own administration, would lead to greater transparency when it came to the final report. Following that visit, however, no report was ever made public. The High Commissioner made public appeals 65 For the suggestion that these hard choices be made according to a set of pre-​established formal criteria, see F Ni Aolain, ‘Strategic Priorities and Challenges for the United Nations High Commissioner for Human Rights’ (2004) 35 Columbia Human Rights Law Review 469, 473–​6.

The High Commissioner for Human Rights  685 on the situation, but they went largely unreported, due to the fact that they were rather understated, and the High Commissioner’s Office had, at that time, no press strategy. The same High Commissioner also sent an envoy to Colombia, but the report was again never published.66 In the same vein, the High Commissioner’s own visits to Indonesia and East Timor resulted in some statements, but merely to the effect that there were human rights violations that ‘must be corrected’. This attitude infuriated human rights organizations that saw the ‘champion’ of human rights as derelict in his duty.67 While there may be many reasons why the then High Commissioner did not denounce human rights violations more aggressively,68 one at least seems to have been prominent in Ayala-​Lasso’s mind. In all three cases, the High Commissioner was in fact determined to establish a field presence. In Chechnya, the possibility of a ‘human rights field presence’ to ‘follow the human rights situation  . . .  and report on the developments to the High Commissioner’69 was raised by the High Commissioner’s envoy. In Indonesia, the presence of a human rights officer (within the office of the UN Development Programme) to review the implementation of the UN’s technical cooperation programme was eventually permitted. And above all in Colombia, a ‘permanent office’ was set up which would ‘assist the Colombian authorities in developing policies and programmes for the promotion and protection of human rights’, ‘observe violations of human rights’, and make ‘analytical reports to the High Commissioner’, who, in turn, reports to the Commission/​Council on the activities of the office.70 The tension between criticism of Russia, Indonesia and Colombia, and the desire to establish an field presences, illustrates the early challenges for the first High Commissioner. The UN does not send its own personnel to carry out human rights work without the consent of the host government. In order to obtain that consent, the High Commissioner may feel forced to tread softly until consent is forthcoming. Nor are the comparative merits of denunciation versus field presence easy to assess. The ‘permanent office’ in Colombia, despite fears that such an office ‘could serve as a pretext for impeding or reducing the operation of the supervision mechanisms of the UN Commission on Human Rights’,71 is today generally considered a success (and, as we saw above, became by far the biggest operation in the field). At the same time, the High Commissioner has to engage in a delicate calculus: there is evidence that the High 66 The High Commissioner sent Philippe Texier, a member of the UN Committee on Economic, Social, and Cultural Rights to Colombia on a fact-​finding mission. 67 See, in particular, Amnesty International, ‘Agenda for a New United Nations High Commissioner for Human Rights’ (Report) (14 April 1997) AI Index 40/​08/​97 for the criticism of José Ayala-​Lasso’s failure to deal with specific human rights violations during his visit to Tunisia. 68 It is often considered that Ayala, who had chaired the UN negotiations at the General Assembly creating the High Commissioner, was uniquely sensitive to the expectations of certain states, that the High Commissioner not be excessively interventionist. 69 Making Human Rights a Reality (Report of the United Nations High Commissioner for Human Rights), UN Doc E/​CN.4/​1996/​103 (6 March 1996), para 98(a). 70 Draft Report of the Commission on the situation of human rights in Colombia, UN Doc E/​CN.4/​1996/​L.10/​ Add.3 (24 April 1996) 5–​8. For a review of the subsequent work see V Rodriguez-​Rescia, ‘The Impact of the High Commissioner on Human Rights Protection in Colombia’ in Gaer and Broecker, above n 25, 369–​88. 71 Joint Declaration of human rights nongovernmental organizations and other Colombian social sector representatives regarding the proposal to open a permanent office in Colombia of the UN High Commissioner for Human Rights, Bogota, August 1995.

686  Andrew Clapham Commissioner’s leverage in securing a field presence will only work where there is a threat that the UN political bodies will react if the potential host country fails to cooperate. In the case of Colombia, mounting pressure at the Commission from other governments gave the High Commissioner the necessary leverage to negotiate the eventual field office, but governments never threatened the same action with regard to Russia or Indonesia. This suggests that when the prospects of obtaining a foothold are weak, denunciation rather than just the threat of it should be considered a definite option. Indeed, even after an agreement is successfully concluded allowing the High Commissioner to establish such a field presence, the tension is likely to remain as the government can terminate its consent and demand that the mission leave the country (this is what happened with regard to Rwanda). Given this dynamic, two questions arise. First, is it worth remaining mute in the hope of obtaining a presence? Second, is it worth negotiating a presence which will have no power to monitor human rights violations and will merely legitimize the government’s claim that it is doing everything possible to cooperate on human rights with the United Nations? This is a tension that lies at the heart of contemporary international human rights work more generally. All organizations that seek to engage with governments in a constructive way are faced with the difficulty of knowing how and when to complain about violations and denounce non-​cooperation or obstruction. It is acknowledged that the most effective fieldwork tends to combine assistance and reporting.72 In the words of one experienced field worker: Some local officials refused outright to allow HROs [human rights officers] to interview refugees during investigations into alleged human rights violations. They regarded us with suspicion, unsure of our motives or how we would use the information we gathered. In such situations, we would invest time in implementing the assistance aspects of our mandate: human rights training for officials, making local human rights broadcasts. Only after developing a relationship of mutual trust with local authorities could we implement our monitoring and investigating roles. Without the assistance aspect of our mandate—​important in and of itself—​we would never have succeeded in seeking accountability for violations.73

These questions related to visits and muted criticism also have to be addressed in light of the effect that the High Commissioner’s work may have on the work of other parts 72 See D García-​Sayán, ‘The Experience of ONUSAL in El Salvador’ in A Henkin (ed), Honoring Human Rights and Keeping the Peace (Washington, DC: The Aspen Institute, 1995) 31, 38; A Arakelian, Rapport de fin de mission (Responsable de la section promotion des droits de l’homme unité juridique, Rwanda: March 1996) 5. Of course for the International Committee of the Red Cross the methodology is different as they are considered dependent on confidentiality and access to the victims of war is given priority, this has in turn led to a special privilege protecting this confidential information see the Rules of Procedure and Evidence of the ICC Statute Rule 73(4) and ICRC, ‘The ICRC’s Privilege of Non-​disclosure of Confidential Information’ (2016) 97 International Review of the Red Cross 433–​44. 73 B Majekodunmi, ‘United Nations Human Rights Field Officers’ in Y Danieli (ed), Sharing the Front Line and the Back Hills (Amityville, NY: Baywood Publishers, 2002) 137, 140.

The High Commissioner for Human Rights  687 of the UN’s human rights machinery. An oft-​heard criticism of the work of the High Commissioner in the early days of the mandate, was that the post risks undermining the work of the special procedures by offering countries the option of inviting the High Commissioner and then claiming that they are cooperating with the UN’s human rights mechanisms at the highest level. In this way, governments committing egregious human rights violations could avoid a detailed scientific situation report together with the follow-​up and political debate that accompanies the involvement of a special procedure.74 After almost two decades the fear that the High Commissioner would undercut the Special Rapporteurs has not been borne out. Today it is more likely that the High Commissioner would pave the way for a special rapporteur’s visit or follow-​up on selected recommendations. Mary Robinson brought with her a greater willingness than her predecessor to go on the record about certain grave violations of human rights. Her first statement started with the words: ‘I have said that I would be a moral voice for victims of human rights violations, and so I feel compelled to refer to the current political crisis regarding the investigation of alleged massacres in the Democratic Republic of Congo.’75 Early on in her mandate, the High Commissioner publicly raised the human rights situation in Algeria.76 Her statements were met with diplomatic protests from Algeria, and an initial refusal to allow the suggested commission of inquiry. Robinson rejected the idea that the issue could be shielded from UN attention by labelling it an internal affair: ‘When there are serious violations of civilians’ rights and when the situation is as bad as in Algeria I do not and cannot consider it to be an internal situation.’77 Such reasoning would pave the way for numerous country statements.78 Mary Robinson’s denunciations of human rights violations in Kosovo and Sierra Leone were particularly noteworthy. The tragic killings in these places solicited worldwide concern, but these situations also illustrate the delicacy and difficulty of the High Commissioner’s task. On 30 April 1999, Robinson addressed the UN Commission on Human Rights on the issue of Kosovo. In her address she invoked the principle of proportionality and stated: ‘[i]‌t surely must be right to ask those carrying out the bombing 74 See H Cook, ‘The Role of the High Commissioner for Human Rights: one step forward or two steps back?’ (1995) 89 Proceedings of the American Society of International Law 235, 238. 75 Statement by Mrs Mary Robinson, United Nations High Commissioner for Human Rights (19 September 1997). 76 See Annan’s press conference at the Venice Film Festival, Italy (30 August 1997) reproduced in part in United Nations, The Quotable Kofi Annan (New York: Department of Public Information, 1998) 31 for an important expression of concern over ‘a situation which for a long time has been treated as an internal affair’. 77 UN High Commissioner for Human Rights tells Algeria that she did not request special meeting on the situation in that country, UN Press Release (28 October 1997); G Bassir, ‘Lionel Jospin souligne la violence de l’état algérien; Le premier ministre annonce un assouplissement de la politique des visas’ Le Monde (1 October 1997) 3. 78 For example consider the appeal for the Rwandan Government to reconsider a decision to execute twenty people convicted of genocide, a condemnation of the assassination of Monsignor Juan Gerardi Conedera in Guatemala, joining three Special Rapporteurs in urging Nigeria not to carry out a death sentence for six defendants on charges of treason, expressing concern over the loss of life in which eight Palestinians were reported killed in the Israeli Occupied Territories during a demonstration, the situation in Chiapas, Mexico, the expulsion of Eritrean nationals from Ethiopia, the execution of Karla Faye Tucker in the United States, attacks by armed militias on the UN Mission in East Timor, repression against Myanmar’s opposition, or the cruelty against civilians in Sierra Leone. Robinson conducted her own mission to Chechnya reporting back to the UN Commission on the interviews she had had with victims of rape and other human-​rights violations.

688  Andrew Clapham campaign to weigh the consequences of their campaign for civilians in the Federal Republic of Yugoslavia.’79 She reminded states that the International Tribunal for the former Yugoslavia had jurisdiction over the continuing events in the Federal Republic of Yugoslavia and that the ‘actions of individuals belonging to Serb forces, the KLA, or NATO may therefore come under scrutiny, if it appears that serious violations of international humanitarian law have occurred.’80 Her opinion piece in the International Herald Tribune two months into the NATO bombing similarly contained a paragraph which challenged NATO to remain within the rule of law,81 while her report of 31 May 1999 detailed ‘civilian targets’ that had been hit as well as civilian killings and environmental damage caused by the NATO campaign.82 This was a brave assertion of principle, not only because many were genuinely convinced that the NATO action was necessary to protect the human rights of the Kosovar Muslims, but also because the NATO states represent an important support base for the High Commissioner.83 As the NATO spokesperson pointed out, the report was 95 per cent about violations by the Serbs and only 5 per cent of it was dedicated to NATO,84 but the High Commissioner’s remarks were widely reported as criticism of the bombing campaign, generating hostility from senior officials from NATO states. This comprehensive report by the High Commissioner was based on information gathered during Robinson’s own mission to the region, as well as information from her Kosovo Emergency Operation based in the former Yugoslav Republic of Macedonia, Albania, and Montenegro. These events illustrate how the creation of the Office has altered the way in which human rights reports are dealt with at the UN. Before the creation of the Office, the situation would only have been considered in an intergovernmental debate at the Commission or the General Assembly. A UN report would have had to be preceded by a specific mandate agreed by the member states. Even if such a mandate were forthcoming, this would most likely be for a Special Rapporteur, a pro bono volunteer with little back-​ up in the field. The capacity of the Office to establish a field operation within a week of the start of crisis, and to report publicly on the human rights situation a couple of

79 See M Robinson, Report on the human rights situation involving Kosovo, UN Doc HC/​K304 (30 April 1999). See also Statement by the High Commissioner for Human Rights (26 March 1999); Briefing on Situation of Human Rights in Kosovo (9 April 1999); Report on the situation of human rights in Kosovo, Federal Republic of Yugoslavia, HC/​K224 (22 April 1999); Report on the situation of human rights in Kosovo, Federal Republic of Yugoslavia, UN Docs E/​CN.4/​2000/​7 (31 May 1999) and E/​CN.4/​2000/​10 (27 September 1999). 80 UN Doc HC/​K304 (30 April 1999), ibid. 81 M Robinson, ‘Respect Human Rights in Fact, not Just in Theory’ International Herald Tribune (31 May 1999) 8.‘There are still questions to be answered regarding the legality of the bombing campaign in the absence of approval from the Security Council. The Security Council, for its part, must come to terms with its apparent inability to unite in response to the crisis before the bombing started.’ 82 Report by the High Commissioner for Human Rights on the Situation of Human Rights in Kosovo, Advance, unedited version (31 May 1999) part VI. The report was requested by the Commission by Resolution 1999/​2 and was based on information gathered by the OHCHR Emergency Operation and by the High Commissioner during her mission to the region from 2 to 13 May 1999. 83 As seen above, voluntary contributions to the Office are in fact greater than the sum allocated to the Office through the regular UN budget. In 1998, the top ten donors to the total of $37 million were roughly as follows: United Kingdom 29 per cent; United States 18 per cent; Norway 11 per cent; Netherlands 7 per cent; Denmark 6 per cent; Sweden 5 per cent; Germany 4 per cent; Japan 3 per cent; France 2.5 per cent; Ireland 2.5 per cent. 84 ‘Hard Talk’ BBC World TV (9 June 1999).

The High Commissioner for Human Rights  689 weeks after the High Commissioner travelled to the region, represents exactly the sort of changes that the creation of the Office was designed to bring about. The comments about NATO stand as proof that the Office was now acting on its commitment to impartiality. This was not the action of the secretariat of a member-​driven organization. With regard to Sierra Leone, Robinson’s policies illustrate how parts of the UN may have interests in working outside a human rights framework, but also how far the human rights programme has come since the conception of the Office. The High Commissioner succeeded in drawing attention to the violations being committed in Sierra Leone and the need to have a human rights component in the UN’s field presence mandated by the Security Council. The reports from Sierra Leone were later incorporated into the Secretary-​General’s reports to the Security Council, which finally highlighted the problems of abuses by the ECOMOG West African peacekeeping forces (something that governments had preferred to ignore in the interests of ensuring a modicum of stability). In addition, the High Commissioner supported the decisions to set up an independent national human rights institution as well as a Truth and Reconciliation Commission. She also urged the establishment of a Commission of Inquiry to investigate and assess the human rights and humanitarian law violations and abuses.85 This last proposal, however, was seen as problematic by the Security Council and the amnesty provision included in the peace agreement of 7 July 1999 seemed to create impunity in Sierra Leone for those who had committed gross human rights violations. Although human rights groups were disappointed with the amnesty and the failure to establish a commission of inquiry,86 the Secretary-​General did instruct his Representative to distance the UN from the amnesty where it could affect serious international crimes, and this position was eventually endorsed by the Security Council and Sierra Leone with regard to the operation of the Special Court for Sierra Leone.87 It is of considerable significance that the UN Secretary-​General’s Special Representative actually distanced the UN from the amnesty provision when signing the peace agreement in Lomé, stating that the amnesty and pardon in Article IX of the agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes, and other serious violations of international humanitarian law.88 Furthermore, this stand had very concrete effects with the subsequent agreement in the context of the Special 85 Statement by Mary Robinson, United Nations High Commissioner for Human Rights at the opening of the 51st Session of the Sub-​Commission on the Promotion and Protection of Human Rights (2 August 1999). 86 ‘Amnesty in Sierra Leone Opposed by Rights Group’ New York Times (26 July 1999) A7; see also Amnesty International News Service, ‘Sierra Leone: The Security Council should clarify the United Nations’ position on impunity’ (4 August 1999) AI Index AFR 51/​10/​994. 87 For details of the OHCHR activities in Sierra Leone, see OHCHR, Annual Appeal 2005, 66–​72. The Special Court for Sierra Leone and the steps taken to distance the UN from the national amnesty are outlined in UN Doc S/​2002/​915 (4 October 2000) para 23; see also Twenty-​Seventh Report of the Secretary-​General on the United Nations Mission in Sierra Leone, UN Doc S/​2005/​777 (12 December 2005). 88 See S/​2000/​915, ibid, para 23:  ‘At the time of the signature of the Lomé Peace Agreement, the Special Representative of the Secretary-​General for Sierra Leone was instructed to append to his signature on behalf of the United Nations a disclaimer to the effect that the amnesty provision contained in article IX of the Agreement (‘absolute and free pardon’) shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law. This reservation is recalled by the Security Council in a preambular paragraph of resolution 1315 (2000).’

690  Andrew Clapham Court which explicitly states that: ‘An amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution.’89 Together, Kofi Annan and Mary Robinson succeeded therefore in enticing the UN Security Council to consider human rights questions at a time when the Council members, and the parties to the conflict, were impatient to ensure a stable peace (and to brush human rights issues under the carpet). As a result of these developments we can say firstly, there is now a stronger case for the UN to discourage national amnesties for gross violations of human rights and serious violations of humanitarian law.90 Secondly, international law may be developing to prohibit and delegitimize amnesties which attempt to cover international crimes.91 A measure of the independence and determination of all High Commissioners will be the extent to which they are prepared to stand up for human rights when they are under attack from the most powerful and influential governments. The positions taken by Mary Robinson with regards to China,92 Chechnya, the Kosovo air campaign by NATO, the armed conflict fought against the Taliban and Al Qaida in Afghanistan, and the threatened erosion of human rights standards in the execution of counter-​terrorism measures all annoyed the governments concerned. In particular, Robinson’s comments to the press with regard to the bombing of Afghanistan and the legality of measures taken by the US with regard to detention and trial post-​ September 11 were considered as ‘undermining’ the war on terror. In the context of the UN, it is worth noting that these various principled positions have meant that there was, at various times, diminished support for Robinson among the Permanent Members of the Security Council. In addition, the antagonisms surrounding the

89 Ibid, para 24. 90 The issue arose previously with regard to Haiti, see I Martin, ‘Justice and Reconciliation: Responsibilities and Dilemmas of Peace-​makers and Peace-​builders’ in A Henkin (ed), The Legacy of Abuse: Confronting the Past, Facing the Future (New York: The Aspen Institute Justice and Society Program: New York University School of Law, 2000) 73–​117; ‘The UN/​OAS actions in the case of Haiti were improper; conversely, the UN’s refusal to endorse the amnesty in Sierra Leone is to be applauded’, ibid, 82. Martin highlights the dilemmas faced by negotiators who may judge that an amnesty could prevent the need for a violent military intervention. In her foreword to The Princeton Principles on Universal Jurisdiction, Mary Robinson stressed ‘that certain gross violations of human rights and international humanitarian law should not be subject to amnesties’. See S Macedo (ed), The Princeton Principles on Universal Jurisdiction (Princeton: Program in Law and Public Affairs, 2001) 17. 91 The Appeals Chamber of the Special Court for Sierra Leone later addressed this in Prosecutor v Morris Kallon and Brima Bazzy Kamara (Decision on challenge to jurisdiction: Lomé Accord Amnesty) SCSL-​2004-​15-​PT-​ AR72 and SCSL-​2004–​16-​PT-​AR72 (13 March 2004). See, in particular, para 89 where the judgment refers to the SRSG’s amended ‘interpretative declaration’ and concludes that it ‘is in accordance with international law and is sufficient indication of the limits of amnesty granted by the agreement.’ See further, A Cassese, ‘The Special Court and International Law:  The Decision Concerning the Lomé Agreement Amnesty’ (2004) 2 Journal of International Criminal Justice 1130. For a useful discussion of the issue of Amnesties under international law, see R Slye, ‘The Legitimacy of Amnesties under International Law and General Principles of Anglo-​American Law: Is a Legitimate Amnesty Possible?’ (2002) 43 Virginia Journal of International Law 173. See also Prosecutor v Furundžija (Lašva Valley) (Judgment) IT-​95-​17/​1-​T (10 December 1998), para 155, where the Tribunal states that an amnesty seeking to cover the crime of torture, a violation of a jus cogens norm, would be internationally delegitimized. See also Bell, above n 7, 259–​91 and R Teitel, Transitional Justice (Oxford: Oxford University Press, 2000) 49–​67. 92 For an example of press reporting, see ‘Robinson Critical on China Rights’ BBC News (1 March 2000); ‘Robinson concerned over Chinese human rights’ BBC News (2 March 2000); ‘China’s rights record criticised’ BBC News (2 March 2000).

The High Commissioner for Human Rights  691 Durban Conference kicked up a storm of protest much of which ended up being directed at Robinson herself.93 On 18 March 2002, Mary Robinson announced that she would be stepping down in September 2002.94 She recalled in her speech to the Commission that the Secretary-​ General had provided her with a motto: ‘stay an outsider within the United Nations’.95 Mary Robinson indeed remained an outsider as far as many key powers (and senior UN officials) were concerned; but she became a human rights insider. Through the Office, Robinson addressed the impact on all human rights of such disparate forces as globalization, migration, discrimination, poverty, conflict, terrorism, trade, and business.96 Her ability to remain inside the human rights discourse means that the post of High Commissioner will always attract an expectation that this official can and must take a principled stand. Visits and speeches by High Commissioner Mary Robinson became litmus tests for a country’s human rights record. Robinson succeeded in, not only getting people to talk about human rights, but also in getting governments to worry about their human rights record. It became clear to many that, although the High Commissioner is only armed with moral authority, Mary Robinson was attracting attention to the human rights records of a wide range of governments.97 Having a High Commissioner who can speak out without fear or favour has become an essential element for the credibility of the whole UN system. During her time as High Commissioner, Louise Arbour had to support human rights in the face of key governments waging a so-​called ‘war on terror’.98 In her 2005 Human Rights Day address, she highlighted ‘the practice of having recourse to so-​called diplomatic assurances to justify the return and “rendering” of suspects to countries where they face a risk of torture . . . and the holding of prisoners in secret detention.’99 Her 93 See E Olson, ‘U.N. Human Rights Official won’t Seek Another Term’ New York Times (19 March 2002) 13, where a ‘senior Bush administration official’ was reported stating: ‘[w]‌e made clear, quietly, our views that she shouldn’t be renewed.’ In a separate article by the same journalist it is stated that Robinson’s role in the Durban Conference on Racism ‘led to the United States and Israel walking out on the grounds that the meeting had lapsed into Israel bashing.’ See ‘UN rights chief won’t seek to stay on’ International Herald Tribune (19 March 2002). See also W Orme, ‘Annan Taps Brazilian for Top Rights Post’ Los Angeles Times (23 July 2002). 94 Although the United States were widely blamed for Mary Robinson’s departure, with the exceptions of France and Sweden, few key governments backed her when it came to the question of her renewal by the Secretary-​ General. From his own perspective, Kofi Annan presented the situation in the following way: ‘For the record, Mrs Robinson is not resigning. What she has indicated is that she would not seek an extension of her term. Most of you will remember that she resigned last year. No, last year when her term came up, four year term, she said she was leaving, and then agreed to stay on for another year. That year comes up at the end of this September [on the 11th]. And so after September, she does not intend to stay on. She’s done a great job, she’s made a contribution, she’s put human rights on the map and she’s put lots of energy, creativity and courage into a very difficult work. It’s a kind of work that every day you make some friends and some enemies. Whatever you do, you offend somebody.’ See Press encounter with President Rodriguez Echeverria (18 March 2002), available at: https://​www.un.org/​sg/​en/​content/​ sg/​press-​encounter/​2002-​03-​18/​press-​encounter-​president-​rodriguez-​echeverria-​unofficial. 95 Statement by Mary Robinson at the opening of the 58th Session of the Commission on Human Rights (18 March 2002). 96 For a useful collection of these contributions, see K Boyle (ed), A Voice for Human Rights—​Mary Robinson (Philadelphia: University of Pennsylvania Press, 2005). 97 ‘Mary Robinson Comes Calling’ The Economist (29 June 2002) 56. 98 For a detailed exposition of Arbour’s position in the context of the human rights impact of counter-​ terrorism policies, see L Arbour, ‘In Our Name and On Our Behalf ’ (2006) 55 International & Comparative Law Quarterly  511. 99 ‘Human Rights Day—​ Statement by UN High Commissioner for Human Rights Louise Arbour’ (7 December 2005).

692  Andrew Clapham comments provoked a storm of controversy, leading the US Ambassador to the UN, John Bolton, to declare that it was ‘inappropriate and illegitimate for an international civil servant to second guess the conduct of what we are engaged in the war on terror with nothing more as evidence than what she reads in the newspapers’.100 Maybe because of her past as Prosecutor for the international criminal tribunals, High Commissioner Arbour also put great emphasis on the idea of accountability, particularly individual criminal responsibility, for certain gross violations of human rights. Louise Arbour made headlines during the 2006 Israel-​Lebanon conflict when she introduced the language of international criminal law and the laws of armed conflict into the human–​rights debate. ‘Indiscriminate shelling of cities constitutes a foreseeable and unacceptable targeting of civilians’, she said. ‘Similarly, the bombardment of sites with alleged military significance, but resulting invariably in the killing of innocent civilians, is unjustifiable.’101 This reminder and her earlier statements were picked up around the world and changed the way the conflict was reported and how the parties were condemned.102 Her statements also brought another round of criticism of Arbour from Ambassador Bolton.103 Louise Arbour additionally demonstrated that well-​timed action could help put the International Criminal Court in motion. She travelled to Darfur on several occasions, at times accompanied by Juán Méndez, the Secretary-​General’s Special Representative on the prevention of genocide, and issued several stern warnings to the Khartoum government about its tolerance of a culture of impunity. Soon after the Independent Commission on Darfur rendered its final report, Louise Arbour went to the Security Council to argue in favour of a referral of the situation by the Council to the ICC. In her words, ‘[w]‌hat is most urgently needed now are concrete measures to bring the current violence to an end and restore security and dignity to the people of Darfur. The Commission, in my view, eloquently and powerfully argues that referral to the ICC is the best means by which to halt ongoing violations and prevent future ones.’104 In analysing Arbour’s role in openly addressing human rights violations, we might highlight another important set of her contributions which aimed at shifting the 100 J Aida, ‘Ambassador Bolton criticizes U.N. Human Rights Commissioner’ Washington File (7 December 2005). For a similar complaint from John Bolton (before he was Ambassador) about Robinson, see the account in B Ramcharan, The United Nations High Commissioner for Human Rights: the Challenges of International Protection, above n 27, 87–​8. See also J Bolton, ‘Speaking for Herself: Mary Robinson in the UN’ The Risk of Freedom Briefing (April 2000). 101 ‘High Commissioner for Human Rights Calls for protection of civilians and accountability in latest Mideast crisis’, UN Press Release (19 July 2006). 102 See, for example, ‘UN Warning on Mid-​East War Crimes’ BBC News online (20 July 2006), ‘UN Warns Hizbullah, Israel of “War Crimes” Liability’ Christian Science Monitor online (20 July 2006), ‘Downing St and Foreign Office at odds on Lebanon’ The Guardian (21 July 2006) recounts divisions in the government and refers to Kim Howells, the Foreign Office Minister, who ‘added that Louise Arbour, the United Nations high commissioner for human rights, had to be taken very seriously when she said this week that the attacks on both sides could be war crimes under international law.’ See ‘Bolton Defends Israel’s Actions in Lebanon’ CNN Online (24 July 2006). 103 CNN Online (24 July 2006), ibid. ‘You know, in America, prosecutors are not supposed to threaten people in public based on press reports. I would just say as one lawyer to another, to Mrs Arbour, that she should consider her professional ethics and responsibilities very carefully here before threatening criminal charges based on press accounts.’ 104 Statement to the Security Council on the International Commission of Inquiry on Darfur (16 February 2005).

The High Commissioner for Human Rights  693 discourse, and changing the way that human rights are discussed in international affairs. Arbour challenged certain dominant distinctions that are prevalent when the international community discusses human rights violations. First of all, as we have seen, Arbour rearticulated some human rights violations in terms of international crimes that might lead to individual prosecutions, not only for the perpetrators, but also for their superiors under the principle of command responsibility. But, secondly, Arbour also challenged the traditional emphasis on civil and political rights in the context of the burgeoning initiatives related to transitional justice. This challenge to the established ways of thinking about human rights goes to the heart of conventional wisdom about negative and positive freedom, demands that one think again about the notion of immediate obligations, and confronts the tendency to marginalize or ignore economic and social rights as ‘real’ human rights: Yet, many aspects of economic, social and cultural rights are clearly as immediately realizable as many civil and political rights. ‘Forced’ eviction (that is, eviction that is arbitrary or does not respect minimum guarantees) requires the same type of immediate action and redress as does the prohibition of torture . . . In developing countries, or in countries emerging from devastating conflict, the construction of a free, universal primary education system, or of a basic universal health care infrastructure makes no more demands on the State than the establishment of an even rudimentary criminal justice system capable of providing legal aid, court interpretation, bail supervision, timely and fair trials and humane conditions of detention.105

The speech by Arbour went on to address those working for transitional justice, and to challenge, not only the bias towards civil and political rights, but also the emphasis which is placed on accountability and judicial redress at the expense of creating preventive institutional measures for the protection of all human rights.106 Like her predecessors, Navi Pillay openly addressed many situations of systematic and individual human rights violations. For example she made the news with a position on migrants’ ‘disappearance’ in Mexico, publicly pressuring the Mexican government to investigate events whereby ‘migrants were abducted in highly questionable circumstances’.107 Amongst many instances related in individual cases, she spoke out against the ‘extremely harsh sentence’ that China gave to Liu Xianbin and stated that this condemnation ‘confirms the severe limits being imposed on freedom of expression in China’.108 Pillay also raised questions with regard to the use of drones by the United States in Pakistan,109 105 L Arbour, ‘Economic and Social Justice for Societies in Transition’ (2006) 10 Center for Human Rights and Global Justice: Working Paper Series 1, 7. 106 Economic and Social Justice for Societies in Transition, ibid 16; See also Arbour’s response in The Economist (7 April 2007). 14: ‘As for the supposed lack of clarity in applying economic and social rights, is it really any easier to quantify equality, or to ensure free elections, rights one presumes you consider “real”?’ 107 R C Archibold, ‘U.N. Urges Inquiry of Migrants’ Disappearance in Mexico’ New York Times (21 January 2011). 108 ‘UN Rights Chief Speaks Out Against ‘Extremely Harsh’ Sentence Given to Chinese Activist’ UN News Center (25 March 2011). 109 ‘US drone strikes “raise questions”, UN’s Navi Pillay’ bbc.co.uk, 3 June 2012.

694  Andrew Clapham Pillay denounced the Israeli blockade of Gaza. She argued that ‘Only a full lifting of the blockade followed by a strong humanitarian response will be adequate to relieve the massive humanitarian suffering evident in Gaza today.’110 The day following the launch of Israeli military operations in Gaza, she issued a news release saying that, ‘While condemning the rocket attacks by Hamas that led to the death of one Israeli civilian, she also strongly condemned Israel’s disproportionate use of force resulting in the reported death of more than 270, a large number of which were civilians, and the wounding of over 600 persons.’111 Invoking the international accountability dimension, Pillay emphasized that ‘violations of international humanitarian law may constitute war crimes for which individual criminal responsibility may be invoked’.112 She made a statement before the Security Council in July 2010 where she ‘urge[d]‌the Council to take appropriate action to ensure the lifting in full of the blockade.’113 Pillay was appreciated for taking a series of clear positions regarding a number of situations including the crackdown on the protests commonly known as the Arab Spring.114 Addressing the Human Rights Council on 25 February 2011, she recalled that states had agreed in their 2005 Summit that ‘each individual State has the responsibility to protect its populations from crimes against humanity and other international crimes.’ She told the Special Session that ‘the international community has the responsibility to step in by taking protective action in a collective, timely and decisive manner’, and went on to ‘recall that under international law, any official, at any level, ordering or carrying out atrocities and attacks can be held criminally accountable and that widespread or systematic attacks against the civilian population may amount to crimes against humanity.’115 The next day the Security Council took up her line stating: ‘the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity’, and then referred the situation in Libya to the Prosecutor of the International Criminal Court (ICC).116 By July 2012, after multiple condemnations and reports, High Commissioner Pillay was calling for the Security Council to refer the situation in Syria to the ICC, reminding all concerned that there could be individual accountability for international crimes. Furthermore she criticized the flow of arms to both sides: ‘There is a risk of escalation; the provision of arms to the Syrian government and to its opponents is fueling the violence. Any further militarization of the conflict must be avoided at all costs’.117 It 110 ‘United Nations High Commissioner for Human Rights Calls for an Immediate End of the Israeli Blockade of Gaza’ United Nations Press Release (18 November 2008). 111 ‘UN Human Rights Chief Expresses Her Grave Concern in the Escalating Violence in Gaza’ United Nations Press Release (28 December 2008). 112 Statement of Ms Navanethem Pillay, United Nations High Commissioner for Human Rights to the 9th Special Session of the Human Rights Council on the Grave Violations of Human Rights in the Occupied Palestinian Territory including the recent aggression of the occupied Gaza Strip, 9 January 2009. 113 Open Debate on Protection of Civilians in Armed Conflict:  Statement by Ms Navi Pillay at the United Nations Security Council, 7 July 2010. 114 See for example the evaluation by Reuters (S Nebehay) ‘U.N. rights office shifts into high gear on crises: Often criticised for failing to tackle abuses in authoritarian countries, the U.N. human rights office has leapt into action recently to denounce leaders clinging to power in Ivory Coast, Tunisia and Egypt’, 6 February 2011. 115 Statement by Navi Pillay, Human Rights Council, 5th Special Session, 25 February 2011. 116 Resolution 1970 (2011). 117 Statement of 3 July 2012, New York.

The High Commissioner for Human Rights  695 is worth noting at this point that the initial resistance of the Security Council to hearing directly from the High Commissioner for Human Rights has now been considerably eroded. By 2012 High Commissioner Pillay had briefed the Security Council more times than all her predecessors put together.118 As explained above, High Commissioner Zeid quickly earned a reputation for hard hitting and reflective speeches tackling individual populist politicians and questioning the motivations of individuals and groups of extremists.119 He was also faced with refusals from a number of states to cooperate in the Office’s monitoring efforts by denying access and invoking issues of sovereignty. After two years in office he revealed the push back he was getting from some governments: I am told repeatedly by members of Government and Permanent Missions that human rights are being misused as a pretext for interference in the affairs of sovereign nations. It is suggested the struggle against discrimination violates cultural values. Officials have protested that human rights officers observing a public street demonstration are ‘interfering’ in the State’s internal affairs. Statements by my Office regarding credible allegations of violations  –​including excessively broad and violent security sweeps; prosecutions that appear politically motivated; and the massive use of capital punishment for crimes not consistent with the norms laid out by the ICCPR –​are deemed ‘biased’, ‘irresponsible’, ‘misleading’ or based on ‘false’ premises. Monitoring activities, and advocacy intended to help better protect the people of your countries, are refuted as somehow violating the principle of State sovereignty –​or even the UN Charter.120

He responded by challenging the very premise that the governments relied on: Under international law, wrongful ‘intervention’ –​as prohibited in Article 2(7) of the UN Charter –​is by nature coercive. And it should be obvious that my Office has no coercive power. No activity that we undertake can possibly be considered constitutive of a prohibited ‘intervention’. We seek to strengthen national protection systems, not violate them. We do not threaten invasion, nor do we finance or organize sedition; we request access, in order to establish a neutral clarity about the facts on the ground. And access only becomes possible when the State extends an invitation to us; it cannot be forced open by OHCHR.121

As with Louise Arbour and Navi Pillay before him, Zeid demonstrated a keen interest in the prosecution of international atrocity crimes, either by international tribunals or 118 ‘Address by the High-​Commissioner for Human Rights at the Jacob Blaustein Institute for the Advancement of Human Rights’ February 2012. 119 ‘History has shown us time and again the dangers of demonising foreigners and minorities, and it is extraordinary and deeply shameful to see these types of tactics being used in a variety of countries, simply because racism and xenophobia are so easy to arouse in order to win votes or sell newspapers,’ The Guardian ‘UN human rights chief denounces Sun over Katie Hopkins “cockroach” column’ 24 April 2015. 120 Opening Statement, UN Human Rights Council, 13 September 2016. 121 Ibid.

696  Andrew Clapham other jurisdictions. Many of his interventions focused on the need to address crimes against humanity and war crimes in Syria, Libya, Yemen, the Democratic of Congo, the Central African Republic, Burundi, Sri Lanka, Israel, and Palestine.

(b)  Technical cooperation Technical cooperation, which was originally designed by the General Assembly in 1954 and titled ‘advisory services’,122 was expanded by the Commission and consolidated at what was then called the Centre for Human Rights. Initially only a few governments requested advisory services and the programme came to be used by the UN Human Rights Commission as a kind of ‘second division’ for states with bad human rights records. Those states that could muster enough support were spared the perceived ignominy of being discussed under the agenda item concerned with ‘violations of human rights’ and instead relegated to discussion under ‘advisory services’. They would not have a ‘special rapporteur’ assigned, but rather an ‘independent expert’ or a ‘special representative of the Secretary-​General’. In reality these labels eventually made little difference, but diplomatic representatives defending their government at the Commission were simply concerned with the image of their country (and perhaps their own image as skilled diplomats clever enough to keep their government out of the ‘first division’ and off the serious violators list). To be categorized as benefiting from advisory services took the sting out of the tail of being the subject of a Commission resolution. From 1987 onwards, there was a marked increase in the work on technical cooperation due to the creation of the Voluntary Fund for Technical Cooperation. The Fund is administered by a Board of Trustees that advises the High Commissioner as to whether proposed projects should be approved. Over the years, the management of the technical services programme has had to respond to a number of criticisms. One long-​standing criticism has been that it has failed to take into consideration ongoing work by other UN bodies.123 In 2003, an independent report found that there were no ‘strong and consistent links between the treaty bodies and special-​procedure-​based mechanisms and the Technical Cooperation programme’. Although much technical cooperation focused on reinforcing reporting to treaty bodies, the report found that this was a ‘one way street’, and that the country programmes typically included few or no references to the activities of treaty bodies, as if their normative production was irrelevant to the reinforcement of human rights in the relevant country.124 122 See GA Res 729 (VIII) and 730 (VIII) (23 October 1953); GA Res 839 (IX) (17 December 1954); GA Res 926 (X) (14 December 1955). 123 Independence of the Judiciary and the Protection of Practising Lawyers (Report of the Special Rapporteur, Louis Jointet, in accordance with Res 1990/​23 of the Sub-​Commission on the Prevention of Discrimination and Protection of Minorities), UN Doc E/​CN.4/​Sub.2/​1991/​30 (30 July 1991). 124 C Flinterman and M Zwamborn, ‘From Development of Human Rights to Managing Human Rights Development’ in Global Review of the OHCHR Technical Cooperation Programme (Utrecht: Netherlands Institute of Human Rights (SIM) and MEDE European Consultancy, 2003) 62.

The High Commissioner for Human Rights  697 It has been further argued by a number of friendly critics of the system that technical cooperation should not be offered to governments that have no real will to use the information and advice to change their structures and practices.125 As technical cooperation expanded in response to more and more requests from governments,126 and as the response becomes more and more mingled with the UN’s development programme, the tendency is to enter into a ‘one way dialogue’ with governments where governments simply recommend what they want out of the projects. The result is that the government is able to point to a UN human rights patina as part of a veneer of respectability, without taking any real steps to reform the relevant institutions and practices. Furthermore, effective monitoring and pressure for change is deflected or diluted in the presence of the ‘cooperation’ programme. As Harold Hongiu Koh once put it, ‘training is not necessarily reform’,127 and the High Commissioner should be wary that the use of technical cooperation is not simply used by states as a diversion.

(c)  System-​wide cooperation and mainstreaming Ideological rivalries surrounding human rights in the 1970s had left a lasting impression at the top of the UN that human rights issues were too ‘politicized’. The UN Secretary-​General became wary of anything to do with human rights, and the Division (as it then was) was moved in 1974 from UN headquarters in New York to the UN Office in Geneva. The result was that the Centre became sidelined from developments at UN headquarters in New York and human rights became even more marginalized. A continuing challenge remains the need to bring human rights ‘back into’ the mainstream of the UN’s activities. This issue is addressed in more detail in the chapter in this collection by Georges Minet, especially as it relates to international financial institutions. This section will therefore address some of the coordination issues in other spheres. Indeed, one rationale for the new post of High Commissioner for Human Rights was the need to pull together some of the various human rights initiatives being undertaken in a rather disparate way throughout the UN system.128 This need was recognized in the Vienna Declaration and Programme of Action in the context of women’s rights. The 125 See, for example, Amnesty International, ‘The UN Advisory Services and Technical Assistance Program’ (Report) (1 February 1994) AI Index IOR 40/​03/​94. See also the Report by the Special Rapporteur Louis Joinet (n 101 above) para 290, where it was concluded that ‘advisory services were pointless when rendered to States that did not satisfy the conditions of minimal respect for human rights: infrastructure, a clearly and regularly affirmed political will, and so on. Quite apart from questions of ethics, such a minimum is indispensable if such services are to be effective’. At para 292, Joinet also referred to the Centre’s ‘Guidelines for project formulation’ and concluded that it was clear from this that ‘Technical assistance can not be granted to a country that does not satisfy certain condition with regard to respect for minimal standards of human rights’. 126 The countries where the Centre had activities or from where it was considering requests are listed along with a summary of the activity in UN Doc E/​CN.4/​1996/​90 (20 March 1996), which has fifty entries. 127 Koh, above n 30, 499. 128 GA Res 48/​141, para 4(i), which created the post of the High Commissioner, states that the responsibilities of the new incumbent shall be: ‘To coordinate the human rights promotion and protection activities throughout the United Nations system’.

698  Andrew Clapham Declaration demands that ‘the equal status of women and the human rights of women should be integrated into the mainstream of United Nations activity’.129 Clearly no High Commissioner has the authority simply to command that other parts of the UN system pay closer attention to human rights standards and procedures. During the term of the first High Commissioner, attempts to get Departments, such as the Department of Peacekeeping Operations, to include human rights training as an integral part of their programme did not bear fruit. Similarly, other parts of the system (in particular those involved with humanitarian issues and election monitoring) had an innate aversion to openly discussing human rights as these parts of the UN system considered human rights too hot to handle. Human rights were seen as tainted with such a political aura that simply discussing them jeopardized some sort of ‘neutrality’. Interestingly, the human rights work carried out at the UN Office in Vienna, in the field of developing criminal justice standards, achieved remarkable results by avoiding being seen as a human rights debate.130 One interesting recent development is the adoption of a policy for UN non-​ cooperation with armed forces involved in serious human rights violations. OHCHR together with the Department of Peace-​keeping led a process that resulted in the Secretary-​General adopting a human rights due diligence policy for working with security forces in 2011. This, in the words of High Commissioner Pillay, ‘requires all UN actors providing support to non-​UN security forces to exercise due diligence by conducting a human rights risk assessment before support is given to such forces. In effect, UN actors cannot provide support to non-​UN security forces where there is a real risk that recipient entities may commit grave violations.’131 The separate ‘rights up front’ initiative by the UN Secretariat is again a response to a tragic failure to protect people from widespread human rights violations.132 The UN’s Internal Review into UN action in Sri Lanka 2007–​9 had detailed the steps along the way where the UN chose to ignore, exclude, and override human rights concerns from its activity and policy in Sri Lanka. Raising human rights issues with the government was seen as threatening continued cooperation and jeopardizing humanitarian assistance. Even after there was no further prospect of delivering assistance, raising 129 See Vienna Declaration and Programme of Action, UN Doc A/​CONF.157/​23 (12 July 1993) part II B para 37; on the increased coordination on human rights within the United Nations system, see part II A. For an overview of the Conference by the UN Centre for Human Rights, see (1993) 14: 9–​10 HRLJ 346–​52. For an insightful analysis of the implications of the Vienna Conference for women’s human rights, see D Sullivan, ‘Women’s Human Rights and the 1993 World Conference on Human Rights’ (1994) 88 American Journal of International Law 152–​67. 130 Clark, above n 5, gives a detailed account of the evolution of this programme and the important contribution this part of the UN Secretariat has made to the development of human rights standards and protection. For a summary of some of the relevant points see: A Clapham, ‘Mainstreaming Human Rights at the United Nations—​The Challenge for the First High Commissioner for Human Rights’ in Academy of European Law, Collected Courses of the Academy of European Law vol 7, book 2 (The Hague: Kluwer Law International, 1999). 131 ‘Address by the High-​Commissioner for Human Rights at the Jacob Blaustein Institute’ (supra). The full title is ‘UN system-​wide Human Rights Due Diligence Policy, which applies to all UN support to non-​UN security forces.’ 132 ‘Rights up front’ summary available at:  https://​icrtopblog.org/​2014/​11/​25/​rights-​up-​front-​and-​civilian-​ protection-​an-​uneven-​first-​year/​; see also the Guidance Note on Human Rights for Resident Coordinators and UN Country Teams available at https://​undg.org/​document/​undg-​guidance-​note-​on-​human-​rights-​for-​resident-​ coordinators-​and-​un-​country-​teams/​.

The High Commissioner for Human Rights  699 human rights was seen as controversial, confrontational, and counterproductive. This amounted to a failure to protect. In the words of the report: In fact, with its multiplicity of mandates and areas of expertise, the UN possessed the capabilities to simultaneously strive for humanitarian access while also robustly condemning the perpetrators of killings of civilians. It should have been able to push further for respect for international norms in the delivery of assistance to IDPs [internally displaced persons] and avoid accusations of complicity in the detention of IDPs.’133

The High Commissioner’s Office now leads in the UN’s efforts to prevent or respond to serious violations in complex crises. This involves the establishment of a common information system, multi-​departmental situation awareness briefings to the Security Council, and guidance for the in-​country Resident Coordinators system. Of course the traditional problems will remain: human rights getting in the way of humanitarian action and political negotiation, but the Sri Lanka drama is a reminder of how things can go badly wrong and the ‘Human Rights Up Front’ (HRUF) banner may serve to empower those seeking to raise serious human rights violations when others find them inconvenient. It should be pointed out that there are paradoxes intrinsic to the very concept of mainstreaming in itself. One such paradox is that, should human rights be actually thoroughly mainstreamed throughout the UN, the need for specific human rights mechanisms (and the High Commissioner’s post itself) might seem a lot less central. Moreover, there is a concern that mainstreaming could lead to different bodies within the UN’s system developing conceptions of human rights and human rights policy that are fundamentally at variance with each other. This is a problem that has been identified in many areas where the High Commissioner is active. With mainstreaming, everyone becomes a human rights advocate and the Office risks losing its role and voice.

(d)  Rapid response and the establishment of field operations A factor in the push to create a High Commissioner for Human Rights was the feeling that the UN should be able to respond to emergencies by rapidly deploying investigations and human rights field officers. JosAyala-​Lasso was tested early in his tenure by the crises in Rwanda and Burundi, and the ensuing mission would become typical of the difficulties that confronted the Office from its inception. The day after the new High Commissioner took up office on 5 April 1994, the Presidents of Rwanda and Burundi were killed when their plane was shot down. Genocide was unleashed in Rwanda with the violence primarily directed 133 ‘Report of the Secretary-​General’s Internal Review Panel on United Nations Action in Sri Lanka’, November 2012, para 75.

700  Andrew Clapham against civilians from the Tutsi minority. By the time the Security Council authorized the phased expansion of UNAMIR (the existing UN peacekeeping mission in Rwanda), the numbers killed had reached several hundred thousand in the space of a couple of months. On 4 May 1994, Ayala-​Lasso issued a public statement announcing that he would go to Burundi and Rwanda together with a number of UN officials and an independent expert, Louis Joinet. He said he hoped that the Commission on Human Rights would meet in a special session and consider appointing a Special Rapporteur as well as a team of human rights monitors. The Commission did indeed hold a special session on 24 and 25 May and passed a resolution appointing a Special Rapporteur for Rwanda. It also called for the High Commissioner to arrange for there to be a team of human rights field officers to assist the Special Rapporteur, and work with the UN peace-​ keeping operation, which the Security Council had belatedly expanded up to 5,500 on 17 May 1994. In some ways this represented a heartfelt response to a crisis situation at a time when the troop contributing powers and the Security Council were turning their backs on Rwanda and Burundi. Unfortunately, the UN Secretariat in Geneva proved unable to cope with the planning, recruitment, training, and deployment of the two human rights operations proposed by the High Commissioner. The field operations in both Rwanda and Burundi were deployed under considerable pressure, but no management was in place to secure the resources and structure to give the operations a chance to fulfil their tasks. This resulted in enormous frustration on the part of those field officers who were among the first to arrive. These rapidly recruited personnel discovered they had no transport, no communications equipment, no status with the authorities, and no clear methodology for carrying out their role.134 Nevertheless, the operation from fairly early on issued multiple reports covering issues such as individual arrests and killings, the suspension of judges, deaths in detention, attacks on local government officials, attacks on genocide survivors and witnesses, and the return of Rwandan refugees. But beyond the issues of funding and job security, there were more fundamental issues to be addressed.135 First, how to raise problems relating to the new government’s human rights record when the country was still struggling to cope with a massive genocide, which had also destroyed the infrastructure of the country? Second, how to carry out the investigative mandate without interfering with evidence that would be needed to issue the indictments in order to bring to justice those who were to be tried at the international level? Third, how to cooperate with humanitarian agencies who may only have had access to certain camps and places of detention precisely because they would not be collecting information on human

134 For an account by one of the first field officers to arrive, see A Stapleton, ‘Amateurs posing as professionals’ Human Rights Tribune (June 1995) 13–​15, and the response by the UN Centre for Human Rights, ‘HRFOR faces a daunting task say officials at the UN’ ibid 16–​17. 135 For an account of some of the problems up to June 1995, see Amnesty International, ‘Rwanda and Burundi: A Call for Action by the International Community’ (Report) (September 1995) AI Index AFR 02/​24/​95. See also OECD, ‘Joint Evaluation of Emergency Assistance to Rwanda’ (March 1996).

The High Commissioner for Human Rights  701 rights abuses? Fourth, how to work in close cooperation with the authorities on technical cooperation programmes involving the training of civilian police forces, the establishment of an independent judiciary, assistance in the preparation of dossiers for the prosecution—​and yet remain able to take a tough stand with these same authorities when there are allegations of serious human rights violations? Efforts have been made to address these and related problems with regards to field operations and commissions of inquiry more generally There was a review of five presences carried out by a Special Adviser on Field Operations;136 there have been regular meetings of heads of field presences; the Manual for Training Human Rights Monitors has been finalized;137 and resources have been channelled to pay for dedicated staff to work on ‘backstopping’ operations and considerations of ‘field methodology.’ In the end, many of the challenges outlined above related to the very first operation in Rwanda will remain inherent in any field deployment. Today working in the field is no longer an exceptional activity; going to the field is rather considered essential to the career of any human rights professional in the OHCHR. There is an increasing degree of cooperation, in particular, between the OHCHR and the Department of Peace-​Keeping Operations. A memorandum of understanding covers design of operations, recruitment, reporting and other matters.138 Similarly there is increasing cooperation with UNDP, UNICEF, UNHCR, UNIFEM, and even the World Bank. Field offices are also often in close liaison with UN Country Teams and human rights is supposed to be integrated into development work. To the extent there are remaining problems these relate to the inevitable tension with country teams and the inability of the Office to get approval from the General Assembly for higher-​ ranking leadership posts to head the field presences.139 Perhaps the most complex area of co-​operation concerns the connection between human rights work and prosecutions for international crimes. When the post of High Commissioner was being created few would have foreseen the ways in which field workers and Commissions of Inquiry would be tasked with framing issues and adapting methodology in order to contribute to international criminal justice.140 136 Some of the recommendations by the Special Adviser, Ian Martin, are included in the ‘Report of the Meeting of Heads of Field Presences’ (Geneva: 4–​7 August 1998). 137 OHCHR, Training Manual on Human Rights Monitoring, Professional Training Series No. 7 (New York: United Nations, 2001). 138 For the Memorandum of Understanding and its annex, see B Ramcharan (ed), Human Rights Protection in the Field, above n 35, 269–​75. 139 For a detailed evaluation see the report of the Office of Internal Oversight Services, E/​AC.51/​2017/​9, 17 March 2017. 140 On commissions of inquiry see P Alston, ‘The Darfur Commission as a Model for Future Responses to Crisis Situations’ (2005) 3 Journal of International Criminal Justice 600–​7; L van der Herik and C Harwood, ‘Commissions of Inquiry and the Harm of International Criminal Law: Between Transactional and Authoritative Approaches’ in P Alston and S Knuckey (eds), The Transformation of Human Rights Fact-​Finding (New York: OUP, 2016) 233–​54; and for more general reflections on the relationship between the spheres of human rights and international criminal law see D Kaye, ‘Human Rights Prosecutors? The High Commissioner for Human Rights, International Justice, and the Example of Syria’, in Gaer and Broecker, above n 25, 245–​65 and A Clapham, ‘Human Rights and International Criminal Law’ in W Schabas (ed), The Cambridge Companion to International Criminal Law (Cambridge: CUP, 2016) 11–​33. For developing practice, see a list of fifty Commissions of Inquiry supported by the UN human rights programme: OHCHR, Commissions of Inquiry and Fact-​Finding Missions on International Human Rights and International Humanitarian Law (2015).

702  Andrew Clapham

19.5  The relationship with the UN Secretary-​General The High Commissioner is a UN civil servant under the ‘direction and authority’ of the Secretary-​General,’141 who in turn is subject to so many competing forces that he or she is unlikely to consistently value human rights above all else. There will be times when the Secretary-​General is keen to resolve an issue between states or maintain a fragile consensus over a UN presence in a conflict situation. In these contexts, a High Commissioner who speaks out in the name of the UN may not only rock the boat but be seen as endangering delicate negotiations carried out by, or in the name of the Secretary-​ General. Of course, it is often said in these and similar contexts that ‘the moment is never ripe for speaking about human rights.’ So far, it seems, High Commissioners are recognized as having a duty to speak out on violations, while delicate diplomacy is left to the Secretary-​General. Such a division of labour makes eminent sense, but it must be noted that the Secretary-​General cannot easily free him/​herself of the need to promote human rights. The role of the Secretary-​General has been variously seen as incompatible with proper respect for human rights and, alternatively, as a natural champion of human rights.142 Although the good offices role is not mentioned in the UN Charter, it has grown up over the years to encompass inter-​state mediation, conflict resolution, adjudication, and investigative fact-​finding. Where the role includes mediation, the problems for simultaneous human rights advocacy become obvious. As David Forsythe comments:  ‘Had Pérez de Cuéllar been highly active, especially publicly, on human rights issues such as Afghanistan, Iraq, and Iran, it is difficult to see how the various parties involved in armed conflict in those states could have accepted him or his representative as mediator’.143 We are immediately faced with the paradox that, for many of the world’s most sensitive human rights situations, the good offices role of the Secretary-​ General may constrain rather than empower. Because the Secretaries-​General have this power of initiative, or can be called on by UN organs to use their good offices to mediate or adjudicate on a dispute (sometimes in turn relying on a group of governments representing ‘friends’ of the SG),144 they have been, in the past, instinctively

141 GA Res 48/​141 (20 December 1993), para 4. According to Alston, ‘[u]‌ltimately, a HCHR cannot work at odds with a Secretary-​General since the latter can cut the lifeline in a hundred different ways.’ See P Alston, ‘Neither Fish nor Fowl’, above n 20, 335. Alston concluded that ‘if [Mary Robinson] is to succeed, the new HCHR must be able to operate within a space cleared for her by the Secretary-​General, and in relation to which the latter can convincingly respond to critical governments that, while not overly enamoured of al particular initiative she has taken, it would be inappropriate for him to interfere except in response to a clear case of abuse of office’. 142 For a detailed review of the Dag Hammarskjöld years see the discussion by J Humphrey, Human Rights and the United Nations: A Great Adventure (Dobbs Ferry: Transnational Publishers, 1984); for a more general look at the Secretary-​General’s role see B Rivlin and L Gorgenker (eds), The Challenging Role of the UN Secretary-​ General: Making ‘The Most Impossible Job in the World’ Possible (Westport, Conn: Praeger, 1993); and S Chesterman (ed), Secretary or General? The UN Secretary-​General in World Politics (Cambridge:  Cambridge University Press, 2007). 143 Forsythe, ‘The UN Secretary-​General and Human Rights’ in The Challenging Role of the UN Secretary-​ General , 211–​32, 226. 144 T Whitfield, ‘Good Offices and “Groups of Friends” ’ in Chesterman, above n 142, 86–​101.

The High Commissioner for Human Rights  703 reluctant to alienate governments by taking an aggressive public stance on human rights violations.145 Perhaps the greatest potential for a Secretary-​General in this context is to exploit their right of initiative to design peace-​keeping missions and other operations with a meaningful human rights mandate, to publicize and take up human rights information which is produced by UN operations, to support the High Commissioner for Human Rights, and develop a personal commitment to taking up individual cases under the ‘good offices’ mandate.146 This last good offices option deserves some explanation. This role with regard to individuals was described by the UN’s own Department of Public Information (DPI) in the run up to the 1993 Vienna World Conference on Human Rights in the following terms: The UN Secretary-​General has at his disposal a confidential diplomatic mechanism—​ good offices—​by which he may raise urgent human rights problems with Governments of Member states. Cases might include the release of a political prisoner or the commutation of a death sentence. The Secretary-​General’s efforts to intercede are discreet and rarely, if ever, publicized, but he continues, at the same time, to make public appeals on behalf of respect for human rights in general.147

Most importantly this new role for good offices came at a time when Secretary-​General Kofi Annan was sending out a strong signal that he was fully behind more emphasis on human rights in public diplomacy and throughout the UN system. Annan was clear from the start, stating that as Secretary-​General, ‘I will be a champion of human rights’.148 In particular, he sought to position human rights work in the context of poverty reduction and conflict prevention. There is a new realization that ensuring good governance—​ including securing Human Rights and the rule of law, assisting with elections and aiding development policies constitute in themselves preventive action. The weakness of these rights and structures are not only the roots of poverty. They are also the causes of conflict and the impediments to post-​conflict reconstruction.149

145 See T van Boven, ‘The United Nations Secretariat’ in P Alston (ed), The United Nations and Human Rights: A Critical Appraisal (1st edn, Oxford: Clarendon Press 1992) 549–​79, 556–​9. For a proposed ten-​point plan for the Secretary-​General in the field of human rights, see J Livermore and B Ramcharan, ‘Purposes and Principles: The Secretary-​General’s Role in Human Rights’ in Rivlin and Gorgenker, above n 142, 233–​45. For a detailed review of the role that the SG and the UN Secretariat play see Security Council Report, Human Rights and the Security Council–​An Evolving Role (2016). 146 The good offices mandate covers not only individual cases but also a peace-​making role; see more generally, T M Franck and G Nolte ‘The Good Offices Function of the UN Secretary-​General’ in A Roberts and B Kingsbury (eds), United Nations, Divided World (2nd edn, New York: OUP, 1993) 143–​82. 147 ‘Talking Points on Human Rights’, UN Department of Public Information, April 1993, 11. More generally see B Ramcharan The International Law and Practice of Early-​Warning and Preventive Diplomacy: The Emerging Global Watch (Dordrecht: Nijhoff, 1991) 15–​17, 40–​1. 148 Statement to the Commission on Human Rights, 10 March 1997. 149 Address to the Danish Foreign Policy Society, 1 September 1997.

704  Andrew Clapham He linked human rights to virtually every area of UN activity by stressing that ‘[h]‌uman rights are integral to the promotion of peace and security, economic prosperity, and social equity.’150 Most dramatically Annan emerged as one of the foremost promoters of the idea that there are limits to sovereignty, and that these limits lie in the need to ensure that populations enjoy basic human security. Addressing the General Assembly in 2000 he stated: ‘National sovereignty offers vital protection to small and weak States, but it should not be a shield for crimes against humanity.’151 Ban Ki Moon was surprisingly outspoken on some human rights issues such as LGBTI rights, where he ended his tenure with a legacy that included not only speaking out but changing UN administrative rules to allow same sex couples certain UN benefits.152 He also came, after a shaky start, to champion opposition to the death penalty. But he will also be remembered for his frank explanation of his bowing to pressure to remove mention of Saudi Arabia and its coalition involved in air strikes in Yemen, from a UN report concerned with the plight of children in armed conflict.153 The increasingly transparent conditions in which Secretaries-​Generals are selected may at least tell us more about their appreciation of human rights issues, although this by no means guarantees that human rights will be a primary consideration. The selection of the Secretary-​General in 2016 took place with unprecedented transparency and participation from the candidates in various hearings.154 The Universal Rights Group produced a series of charts and profiles in a paper entitled ‘Candidates for the Post of UN Secretary-​General: Where do they stand on human rights.’155 António Guterres, became Secretary-​General in 2017, yet barely six months into the job it was already being said that he was holding back on human rights.156 Interestingly for our current context his spokesperson explained that High Commissioner Zeid ‘has a specific mandate to speak up in defense of human rights whenever and wherever they may be 150 ‘Renewing the United Nations: A Programme for Reform’—​Secretary General’s Report—​14 July 1997 (A/​51/​ 950), § 78. 151 Secretary General Statement to the General Assembly, New York, 3 April 2000. See also Kofi Annan, ‘The Legitimacy to Intervene International Action to Uphold Human Rights Requires a New Understanding of State and Individual Sovereignty’, Financial Times (31 December 1999). 152 For an overview see ‘LGBT rights champ Ban Ki Moon exits after Decade as UN Chief ’, available at: http://​ www.pinknews.co.uk/​2017/​01/​03/​lgbt-​rights-​champ-​ban-​ki-​moon-​exits-​after-​decade-​as-​un-​chief/​ 153 ‘United Nations Chief Exposes Limits to His Authority by Citing Saudi Threat’, New York Times, 9 June 2016, available at:  https://​www.nytimes.com/​2016/​06/​10/​world/​middleeast/​saudi-​arabia-​yemen-​children-​ban-​ki-​ moon.html. C Lynch ‘Confidential UN report accuses Saudi coalition of killing hundreds of children in Yemen conflict’, Foreign Policy 17 August 2017, ‘The publication of the report  . . .  presents Guterres with a tough dilemma: if he shames the Saudi coalition he runs the risk of provoking a break with the U.N.’s most influential Arab governments. But if he doesn’t act, he is likely to face charges of undermining the U.N.’s commitment to human rights.’ The 2017 report did include a reference to Saudi Arabia and the coalition with a new distinction between those parties to conflict that have put in place measures to improve the protection of children during the reporting period and those that have not (with the Saudi-​led coalition being listed as having put such measures in place). See Reuters, 5 October 2017, ‘U.N. blacklists Saudi-​led coalition for killing children in Yemen’, and UN Doc A/​72/​361, S/​2017/​821, 24 August 2017, at p 40 the coalition is listed as a party that ‘kills and maims children’ and as a ‘Party that engages in attacks on schools and/​or hospitals’. 154 See Y Terlingen, ‘A Better Process, A  Stronger UN Secretary General:  How Historic Change was Forged and What Comes Next’, Ethics and International Affairs (9 June 2017), available at https://​www. ethicsandinternationalaffairs.org/​2017/​better-​process-​stronger-​un-​secretary-​general/​. 155 Available at:  http://​www.universal-​rights.org/​urg-​policy-​reports/​candidates-​post-​un-​secretary-​general-​ stand-​human-​rights/​. 156 C Lynch, ‘U.N. Secretary-​General Holds His Tongue on Human Rights Violations’, Foreign Policy (12 June 2017).

The High Commissioner for Human Rights  705 threatened or violated’, while the Secretary-​General has a different role with a ‘broader focus on all three pillars of the U.N.’s work and priority to support the resolution of conflict.’157 Human rights may be one of the pillars of the UN but it is clear to some at the top that sometimes raising human rights can cut off not only funding but prospects of successful conflict resolution. How a Secretary-​General chooses to position themselves on human rights will in part be a matter of personal choice, although as someone at the helm of the UN they cannot entirely abdicate responsibility. There will be multiple occasions when the eyes of the world are on the Secretary-​General as they meet world leaders or react to unfolding events. Furthermore the Secretary-​General will determine the reaction of the UN’s operations and programmes in the field and either support or silence their engagement on human rights issues. Omitting references to human rights issues, or, worse, remaining completely silent on atrocities can only serve to embolden those responsible, and remains incompatible with the conclusions from all the ‘post mortems’ conducted after UN failures such as Rwanda and Sri Lanka. The multiple ‘lessons learned’ and repositioning of ‘human rights up front’ will stand for nothing if governmental cooperation and smooth relations with powerful states override any commitment to human rights.158 The creation of the post of High Commissioner offers a chance to sensibly create a division of labour, but this will only be successful if a Secretary-​General carefully selects the High Commissioners, supports their actions, and of course stands firm when it comes to the time for a renewal of their mandate.

19.6 Concluding remarks The diplomatic background and disposition of the first High Commissioner, José Ayala-​Lasso, meant that he often presented a clear preference for ‘quiet diplomacy’ and ‘constructive dialogue’. We suggested above that part of the impetus to create a High Commissioner concerned the perceived need for a vocal moral conscience. Vocal quiet diplomacy, however, is an obvious contradiction in terms. Whilst finger wagging from the big powers can obviously be offensive and hypocritical, a High Commissioner can risk speaking out. The failure of the first High Commissioner to speak up and state who was committing serious violations of human rights generated considerable disappointment and disillusion with the post. In calling for a greater public use of this moral authority, and emphasizing what Fionnuala Ni Aolain has described as the ‘agitational value’ of the High Commissioner,159 we are not suggesting that engaging with governments in a ‘diplomatic’ or non-​confrontational way is never rewarded. There are clearly examples 157 Ibid. 158 ‘Peacekeepers in name only: The persecution of the Rohingya is the latest atrocity the UN has failed to stop’, Economist, 28 October 2017; and see the response from two UN Under-​Secretaries-​General in the Economist, 18 November 2017 where they highlight some of the UN’s successes and state: ‘The global balance of power means that influential countries defending their interests have a big say in what the UN can do, which can empower the UN bureaucracy but also constrain it. 159 N Aolain, above n 55, 471.

706  Andrew Clapham where visits by High Commissioner Ayala-​Lasso contributed to concrete changes by governments (for example the abolition of leg irons in Denmark), or encouraged greater attention to human-​rights laws (Cuba’s eventual ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), resulted in more constructive relations between the field presence and the government (Cambodia), or even led to an on-​site reporting system (Colombia’s consent to a permanent office with public reports to the Commission). Furthermore, the nature of ‘dialogue with governments’ means that many appeals may well be met in a quiet way in order for leaders and governments to save face and avoid being seen bowing to outsiders. But there is a fundamental premise which has to be present for such quiet diplomacy to work. It must be presumed that if the diplomatic dialogue breaks down, or agreements are broken, then the High Commissioner will be publicly critical. Sherlock Holmes once solved a crime mystery by noticing that a dog had not barked.160 Such a deduction only makes sense if the watchdog would normally make a noise when confronting criminals. Clearly quiet diplomacy has a place, but its effectiveness must surely depend on the prospect of eventual public condemnation and exposure. It would be unfair to contrast Ayala-​Lasso’s style in this field with that of Robinson, Arbour, Pillay and Zeid. As already suggested, the change of Secretary-​General radically changed the environment within which the High Commissioner could operate. Moreover, Ayala-​Lasso had to establish the idea of the High Commissioner’s Office with Governments and agencies around the world. Robinson, Arbour, Pillay and Zeid have been able to exploit some of that space, bringing to the Office their own skills and experience. The challenge now for each High Commissioner is to see how to integrate speaking out into a wider human rights strategy for the whole office and its officers in the field. As the Office’s work becomes more intertwined with the work of the rest of the UN, this challenge can only get more complicated. The second area examined above was the Office’s activities in the field of technical cooperation. The important challenges remain:  first, to ensure that technical cooperation is not used to blunt the UN’s monitoring activities;161 second, to ensure that no stigma attaches to enrolling in a technical cooperation programme so that the widest range of countries can benefit from its possibilities; and third, to continue to expand the programme so as to work more closely with civil society and community service organizations at the local level. This means including a range of local actors, empowering local groups, and providing follow-​up with these same people.162 160 A Doyle, The Memoirs of Sherlock Holmes, Silver Blaze. 161 The Secretary-​General’s report is clear on this point: ‘Technical cooperation activities including advisory services may be seen as a complement to, but never a substitute for, the monitoring and investigation activities of the human rights programme’. See E/​CN.4/​1996/​90 (20 March 1996) para 29; see also Cooperation with representatives of United Nations human rights bodies (Report of the Secretary-​General, submitted in accordance with Commission on Human Rights Res 1994/​70), UN Doc E/​CN.4/​1995/​53 (14 February 1995). 162 For insights into OHCHR’s work in this area see: J Genser, ‘The High Commissioner and Human Rights in Burma (Myanmar)’ in Gaer and Broecker (eds), above n 25, 349–​67; K Moskalenko, M Goldman, and C Fitzpatrick, ‘The High Commissioner in the Russian Federation’ in Gaer and Broecker (eds), above n 25, 331–​47; S Samar, ‘The Role of the High Commissioner in Protecting and Promoting Human Rights in Afghanistan and

The High Commissioner for Human Rights  707 Follow-​up is important not only to evaluate progress, but also to ensure participants’ future safety.163 With regard to the third issue—​coordination—​we have seen greater inclusion of the High Commissioner in high-​level discussions at the level of the Secretary-​General’s cabinet style meetings, policy committees, and in the context of meetings which bring together the heads of agencies and Departments to discuss their own contribution to the realization of human rights.164 The High Commissioner’s mandate states that one of the responsibilities is to coordinate human rights activities throughout the United Nations system. As all coordinators know, it is almost impossible to coordinate other peoples’ activities when they do not come under your control. Part of the past resistance from the rest of the United Nations to the High Commissioner’s overtures has been deep scepticism about the expertise and resources which the High Commissioner has to offer. The way forward is obviously for the Office to provide the kind of analysis and expertise that other parts of the UN system will recognize as useful for their work. The rest of the UN system now increasingly takes notice as the High Commissioner’s Office now produces detailed analysis of the human rights dimension of the various situations around the world and contributes to policy decisions. Lastly, we dealt with the High Commissioner’s initiatives in the area of rapid response to human rights crises. We saw that the lack of secure funding for human rights field operations has meant that, in the past, the High Commissioner’s operations have often floundered just at the moment when they were most needed. The test of whether the Office can cope with another Rwanda-​type situation will, we hope, never arise. But the Office is likely going to want to enhance its flexibility in the face of emergencies to send fact-​finding missions, or its ability to ensure sustainable field presences. For country engagement, capacity building, and national action plans to be meaningful the Office will inevitably seek to increase its field presence and activity. The coming years may see further shifts away from the notion that the Office is simply part of the UN Secretariat, towards something which looks more like an agency with greater ‘independence and flexibility’.165

Sudan’ in Gaer and Broecker (eds), above n 25, 311–​29; R Cohen, ‘The High Commissioner for Human Rights and North Korea’ in Gaer and Broecker (eds), above n 25, 293–​309; 163 The points were made by Joinet in the context of programmes for the independence and impartiality of the judiciary, jurors and assessors and the independence of lawyers, above n 101, para 31. 164 A crucial milestone was the forum marking the 50th anniversary of the Universal Declaration of Human Rights chaired by Secretary-​General Kofi Annan with panellists at the Under-​Secretary-​General level, including from the Department of Humanitarian Affairs, and the heads of agencies such as UNHCR, WFP, UNICEF, UNPF, UNIFEM, UNCTAD, ILO, and the ITU as well as Executive Secretaries from the regional economic Commissions and the Under-​Secretary-​General for Economic and Social Programmes. See UN Press Release HR/​98/​16/​Rev.1 (17 March 1998). 165 See Strategic Management Plan 2006–​7, above n 30, 16.

20 Human Rights Co-​Ordination Within the UN System Georges Minet

20.1  Introduction ‘In 1945, the founders of the United Nations identified peace, development, human rights and international law as the four cornerstones of the Charter. Increasingly, we have come to understand that these elements of the U.N. Charter are linked and intertwined. They require concerted effort’.1 Secretary-​General Boutros-​Ghali thus acknowledged, half-​a-​century after the adoption of the Charter, the evolution of the concept and practice of multilateralism as embodied in the UN system, in a determined attempt to make good on long-​standing rhetoric about ‘holistic’ and ‘integrated’ agendas, and to overcome entrenched habits of use and abuse of functionalism. In 1997, for example, successor Kofi Annan ordered the full integration of the human rights programme across the entire range of UN activities, as a major way to renew the United Nations, on the basis that ‘human rights are integral to the promotion of peace and security, economic prosperity and social equity’.2 Some years later, in 2005, the Secretary-​General stressed the need ‘to take human rights and the rule of law seriously in the conduct of international affairs’, pleading for ‘long-​ term, sustained engagement to integrate human rights and the rule of law into all the work of the UN’.3 Having asserted that ‘human rights must be incorporated into decision-​making and discussion throughout the work of the organization’, he opined that ‘the concept of “mainstreaming” human rights has gained greater attention in recent years, but it has still not been adequately reflected in key policy and resource decisions’.4 Almost ten years later, in two successive reports of 2013 and 2014, Secretary-​ General Ban Ki Moon pleaded in favour of a ‘universal, integrated and human rights-​ based agenda for sustainable development’, and indicated that a UN system that is ‘fit for purpose’ should be guided by universal human rights and international norms, 1 Boutros-​Ghali, ‘Symposium on the UN Family:  Challenges of Law and Development’ (1995) 36 Harvard International Law Journal 268. 2 Renewing the United Nations: A Programme for Reform, General Assembly, 51st Session, UN Doc A/​51/​950 (14 July 1997), para 78. 3 K Annan, ‘In Larger Freedom: Decision Time at the UN’ (2005) 84 Foreign Affairs 3, 69. 4 Ibid, para 144.

710  Georges Minet as well as integrate the UN’s normative frameworks within its operational activities.5 In 2010 already, the SG had singled out as one of the guiding principles to implement the MDGs the idea that the ‘ norms and values embedded in the Millennium Declaration and international human rights instruments must continue to provide the foundation for engagement, in particular the key human rights principles of non-​discrimination, meaningful participation and accountability’.6 Coordination is a general theme in the UN, not restricted to human rights. For the sake of simplicity, it is meant here as ‘a way of producing common policies among actors which have legal, or formal competence in particular policy areas’.7 The ambition of coordination is potentially very broad: its process ‘is indivisible and must cover the whole range of economic and social activities by whomsoever they are performed within the United Nations system’.8 For a long time, human rights in the UN tended to be treated as a special domain, one which might be of growing importance, but which did not necessarily need be a consistent focus of the entire UN machinery. The importance of coordination for human rights promotion, however, has steadily become clearer, as the perception has grown that the human rights ‘issue area’ cannot be successfully dealt with in a vacuum or in isolation and as, very recently, ‘silo-​busting’ has become the general order of the day. The focus here, accordingly, is on the relationship of human rights to various relevant parts of the UN system—​‘inter-​regime’ coordination—​rather than on coordination among human rights activities undertaken by the various members of the UN family of institutions—​‘intra-​regime’ coordination. It is the former aspect of coordination that has proved to be most problematic and has taken a long while to achieve real progress. Indeed, it raises many of the crucial problems of coherence which have long bedevilled the UN system. A narrow view of coordination is that it is not about convergence and alignment of the content of policies, but merely about securing efficiency or, at the most, avoiding contradictions and duplications. Here, however, it will be understood as synonymous with integration, that is, as entailing ‘a shared understanding of goals, their interlinkages and the normative frameworks that underpin them, with interventions that are based on a shared vision, strategy and plans to create synergies and address trade-​offs, in order to ensure a whole that is bigger than the sum of its parts’.9 Coordination and mainstreaming pursue broadly similar agendas. To borrow a definition: 5 A life of dignity for all (A/​68/​202 and Corr.1) and The road to dignity by 2030: ending poverty, transforming all lives and protecting the planet—​Synthesis report of the Secretary-​General on the post-​2015 sustainable development agenda (A/​69/​700). 6 Keeping the promise: a forward-​looking review to promote an agreed action agenda to achieve the Millennium Development Goals by 2015, Report of the Secretary-​General (A/​64/​665), para 99. 7 P Taylor, ‘Co-​ordination in International Organization’ in A Groom and P Taylor (eds), Frameworks for International Cooperation (Palgrave Macmillan, 1990) 29. He identifies three major elements in coordination: ‘the actors have an area of discretion; policies are adjusted by them in an agreed direction; and policies are fitted into a programme which is seen to be of mutual advantage’. 8 C Jenks, The International Labour Organisation in the U.N. Family, (United Nations Institute for Training and Research, 1971) 39. 9 Implementation of General Assembly resolution 67/​226 on the quadrennial comprehensive policy review of operational activities for development of the United Nations system: Report of the Secretary-​General, General Assembly, 71st Session, UN Doc A/​71/​63–​E/​2016/​8 (31 December 2015), para 13.

Human Rights Co-ordination within the UN System  711 to mainstream means that agencies utilize a lens to see how their policies, strategies, programmes and activities are interlinked with [human rights] outcomes and how they can enhance these outcomes by taking full account of their implications during the design stage and while advising and assisting countries and constituents with regard to their adoption and implementation. Clear political will and commitment to [human rights] principles should lie at the highest levels and there should be adequate allocation of resources (both financial and human) for mainstreaming.10

This chapter’s premise is that system-​wide, cross-​sectoral coordination is crucial to ensure the effectiveness of the multilateral human rights regime and that, accordingly, it must form part of any evaluation of the regime’s performance.11 Conversely, the lack of coordination inevitably weakens the system’s capacity to fulfil its responsibilities with respect to rights. The rhetorical pursuit of coherent strategies has now begun to bear fruit, with the gradual building of a comprehensive and unified agenda for the promotion of human rights throughout UN institutions. Not every obstacle has vanished, but a once daunting challenge looks less so now that the centrality of human rights to the UN mandate has been acknowledged by leadership and constituents alike. Two main reasons explain why human rights coordination in the UN context has been permanently beset by difficulties. One is the fragmented institutional structure of the system. While metaphors such as ‘system’ or ‘family’ suggest that the grouping of UN-​related institutions obeys some kind of internal logic, others such as ‘galaxy’ or ‘conglomerate’ perhaps more accurately convey the image of a loose pattern. Ideally, ‘in a family of organizations, tasks are divided and each organization plays a role in the larger unit formed by the family’.12 When it comes to the UN, however, family spirit was never of the strongest sort, while even the term ‘system’ is generally understood to be a misnomer since it describes not an entity under single management but a polycentric, discontinuous reality. Hence the recurrent calls to bring some sort of coherence to UN system policies and operations as part of an incremental reform of global governance. Of late, satisfying such demands appears to have gained in urgency, as globalization has, in many paradoxical ways, ‘resulted in increased segmentation of the roles played by international institutions’,13 instead of favouring a genuine convergence of policy contents. As to human rights, their peculiar political and legal characteristics mean that they have long been insulated from the rest of the UN’s activities. This has led to a long-​ standing perception of UN human rights policy as a self-​contained, ‘fairly isolated industry’.14 Here the familiar issue of the indivisibility of the civil, political, economic, 10 I Posta and S Prom-​Jackson, Evaluation of mainstreaming of full and productive employment and decent work by the United Nations system organizations (Joint Inspection Unit, 2015) para 19. 11 As actually required by the Vienna Programme of Action and by GA Res. 45/​155 (18 December 1990). 12 H Schermers and N Blokker, International Institutional Law (3rd edn, Martinus Nijhoff, 1995) 1056. 13 P de Senarclens, ‘The Politics of Human Rights’ in J Coicaud, M Doyle, and A Gardner (eds), The Globalization of Human Rights (UNU Press, 2003) 155. 14 F Francioni, ‘The Role of the EU in Promoting Reform of the UN in the Field of Human Rights and Environmental Protection’ in M Ortega (ed), The European Union and the United Nations, Partners in Effective Multilateralism (Institute of Security Studies, 2005) 38.

712  Georges Minet social, and cultural rights (frequently affirmed, but shaky in practice) comes into play. It has the potential, if taken seriously, to help forge links between different parts of the UN system whose conceptual and operational separation remains a hindrance to the indivisibility agenda. Furthermore, deep-​seated ideological and political sensitivities never fail to colour the subject. While it is clear that the oppositions that structured the human rights debate during the Cold War were hardly conducive to institutional harmony at a time when principles seemed to be so much in flux, Southern misgivings about the purpose of the Western rights agenda have certainly not disappeared and may caution against hegemonic attempts at mainstreaming. Finally, there have long been concerns with human rights mainstreaming as a tool empowering technocracies and elites, possibly at the expense of more radical practices of rights,15 while, more recently, it has been perceived as a pragmatic device designed to temper the social impact of neoliberal economic policies without openly challenging their legitimacy.16 There is no denying that the landscape has much evolved in the last two decades. Institutionally, even those contending that the present structure remains basically sound turned long ago to advocate its betterment. Given the narrow range of realistic options for change, however, remedies to structural shortcomings have been recurrently sought less in radical reform than in a sustained quest to align the approaches taken by the units of the system with the complex policy agenda of the member states. As to the substance of rights, their indivisibility was solemnly confirmed by the Vienna Declaration, and has since become a UN mantra. This has not entirely resolved conflicts between opposing lines of thought on the treatment of ‘first’ versus ‘second’ generations of rights by policy-​makers and in international fora, but it has steadily weakened some of the arguments about hierarchies between rights that were so strident in earlier decades. The net effect of this newfound official consensus on the equal importance of all rights has been to open space for a long-​awaited emphasis on economic and social rights and the promotion of the right to development, in ways that created natural synergies with various branches of the United Nations. Finally, various other factors hastened this evolution. Firstly, the sense that an ‘inescapable’ link exists between development, democracy, and human rights was highlighted by the demise of the Soviet worldview, and has since taken root, even if in a still fragile way. Secondly, the ups and downs of so-​called structural adjustment in the developing world renewed interest in the political and societal dimensions of economic reform. Thirdly, these very developments generated a second wave of UN summitry in the economic, social, and humanitarian spheres, with the principal aim of seeking to influence the content of the domestic agendas of developing nations, particularly in terms of rights. In contrast, the first such cycle in the 1970s had mostly been about shaping the international parameters of development. Fourthly, the endless agenda of UN reform gradually incorporated auspicious new vistas, with respect both 15 M Koskenniemi, ‘Human Rights Mainstreaming as a Strategy for Institutional Power’ (2010) 1 Humanity: An International Journal of Human Rights, Humanitarianism, and Development 47. 16 D Anthony, ‘The Problematic Use of Human Rights Discourse in the Greek Crisis Debate’ (2016) 5(2) ESIL.

Human Rights Co-ordination within the UN System  713 to the long-​standing search for policy coherence in a decentralized setting and to the need to reflect the transformed relationship between state, market and civil society in a shrinking world system. By 2000, these changes had fostered new coordination goals for the UN system in general, and opened better perspectives for their application to the human rights field in particular—​which were boosted by the stock-​taking that occurred on the occasion of the fiftieth anniversary of the 1948 Universal Declaration of Human Rights. By 2005, ‘coherence’ had firmly replaced ‘coordination’ as the golden thread of UN reform. A decade later, the rights-​based approach looked firmly anchored among the UN organizations, with the enduring exception of the finance and trade institutions.

20.2  The rationale for human rights coordination Given that the UN system is primarily engaged in the business of assisting countries in need of external support notably in the field of development, the chances for meaningful human rights coordination are highly dependent on the conceptual environment shaping the development debate and activities. To date, a significant measure of convergence has come to characterize the understanding of the relationship between development and human rights. This has resulted in a conscious attempt, system-​ wide, to deliver less one-​dimensional, more sophisticated policy advice grounded in an awareness that rights constitute both the end and the means to so-​called ‘people-​ centred’ development.

(a)  Legal factors: the importance of the Charter Like member states, the UN system is bound by international human rights law, even if the former are obviously in a different situation in relation to human rights organs than, for example, development and financial institutions. The UN Charter imposes an obligation on the UN system at large and its many components to work together to promote ‘development’ and ‘human rights’. The logical consequence is that in theory it should make perfect sense to strive towards combining the promotion and protection of all human rights with the multifarious agenda of peace and development. UN human rights bodies have drawn on the Charter to emphasize this point. The OHCHR, for example, considers that UN development agencies and other ‘subjects of international law are legally bound to respect, and operate within the confines established by, the international legal obligations voluntarily entered into by States, including those relating to human rights’.17 In particular, the human rights-​based approach to development (HRBA) is deemed consistent with the requirement for national ownership, 17 OHCHR, FAQ on a human rights-​based approach to development cooperation, 7, available at: http://​hrbaportal. org/​faq.

714  Georges Minet as it draws on international standards voluntarily subscribed to by a country.18 Beyond a ‘duty of vigilance’, UN institutions have, according to the CESCR, a duty to promote human rights.19 For its part, the system has collectively acknowledged that it was thus bound by the Charter.20 The Vienna Declaration and Programme of Action (VDPA) reinforced the sense that all UN system entities were to be legally involved. This has blurred a so far fundamental distinction between them, namely the distinction between the standards-​oriented agencies and the UN funding ‘programmes’. Clearly these days, even the latter have a normative dimension, and will require countries to abide by certain standards. The normative and operational dimensions of the UN’s activities are coming under increased integration, as it becomes clear that respect for human rights is not to be simply a welcome by-​product of development efforts, but an integral part thereof. This conforms to the approach urged by proponents of the so-​called International Law of Development (ILD), who emphasized that development and human rights really go hand in hand, and that international development agencies have the duty to base their action on such rights. The notion of ‘humane development project’ embodied a sense of agency compliance with the legal requirement imposed by the ILD.21 The new legitimacy of the right to development is also exemplified by the parallel recognition by development NGOS that human rights activities further their development and relief work. Indeed, some authors see the UN as already by and large legally committed to a quasi-​constitutional framework with human rights at its apex. One commentator, for example, has argued that, ‘due to their progressive transformation into international jus cogens, the fragmented, treaty-​based UN human rights guarantees gradually evolve into a UN human rights constitution limiting the powers also of international organizations’. This means that, ‘even if human rights are not explicitly recognized in the constitutive agreements of international organizations, they constitutionally limit all national and intergovernmental powers and call for rights-​based development strategies’.22 However, it is not as if all resistance had disappeared to recognizing the binding nature of human rights instruments on all of the UN system’s activities. For one, development diplomacy does not as such readily accommodate legal concepts and keeps favouring the persistence of separatist habits, as illustrated by shortcomings in many drafting processes. Twenty years ago, a case in point were the preparations for the World Summit for Social Development, which elicited the frustration of the Committee on Economic, Social and Cultural Rights at the absence of any reference 18 Ibid., 21. 19 M Darrow and A Tomas, ‘Power, Capture, and Conflict:  A Call for Human Rights Accountability in Development Cooperation’ (2005) Human Rights Quarterly 27, 493. 20 See, for a restatement: UNDG Strategic Priorities for 2013-​2016: ‘UNDG aims to strengthen system-​wide coherence and collaboration on human rights mainstreaming and provide policy and operational support to integrate human rights principles and international standards into the work of the UN, while supporting national partners implement human rights obligations’. (https://​undg.org). 21 See J Paul, ‘International Development Agencies, Human Rights and Humane Development Projects’ (1988) 17 Denver Journal of International Law and Policy 67. 22 E Petersmann, ‘Human Rights, Markets and Economic Welfare: Constitutional Functions of the Emerging UN Human Rights Constitution’ in F Abbott et al (eds), International Trade and Human Rights, Foundations and Conceptual Issues (University of Michigan Press, 2006) 47, 58.

Human Rights Co-ordination within the UN System  715 to the corresponding Covenant—​notwithstanding the obvious coincidence of the Summit’s agenda with its content. Such indifference, said the Committee, would have ‘significant adverse consequences both from the viewpoint of the international human rights regime and of that of the evolving approach to social development’.23 Particularly stigmatized was the risk of ‘a futile proliferation of ineffectual approaches to implementation at the expense of working towards ensuring the effectiveness of those that already exist’.24 In practice, however, these calls were hardly heeded. The experience of the preparatory phases of the MDGs and the SDGs is not without bearing some resemblance to that of 1995. More generally, criticisms have been made that this reluctance was but a symptom of a general trend reflecting ‘a mutually acceptable attempt’ by countries of both North and South ‘to move away from the framework of international human rights law’ and confine themselves to a rhetorical support of rights, devoid of specific commitments.25 Even though paradigms such as good governance and human development have some connection with human rights values and obligations, they appear questionable on account of their catch-​all nature and of the danger they raise of diluting principles otherwise firmly embodied in international law. Seen as attempts to sideline the rights framework, they have prompted a strong rebuke from the chairpersons of the human rights treaty bodies.26 While the evolution of UN agencies bears testimony to the attraction of legally binding frameworks for developmental action, an understanding of human rights as primarily the international obligations of states has not altogether vanished—​the idea being that an international organization’s obligation to ‘promote’ human rights is much weaker than that of states to ‘respect and protect’ them. However, there has been an increasing emphasis on the notion of human rights being part of the constitutional framework of the UN’s actions and something that should very much drive the devising of operational strategies. It is as if the system’s institutions had discovered at long last the existence of a normative strand at play in the unfolding of their practical activities. In his report ‘The Road to Dignity by 2030’, the Secretary-​General stressed that a UN system ‘fit for purpose’ should be guided by universal human rights and international norms and would accordingly integrate the UN’s normative frameworks within its operational activities. As a matter of fact, the 2012 so-​called Quadrennial Comprehensive Policy Review, having reaffirmed, inter alia, the importance of the respect for all human rights and the rule of law, for the first time called explicitly for a strengthening of normative and operational linkages within the system.27

23 Committee on Economic, Social and Cultural Rights, Statement of the Committee on Economic, Social and Cultural Rights, 10th Session, UN Doc E/​1995/​22.Supp, Annex V, para 3. 24 Ibid. 25 Committee on Economic, Social and Cultural Rights, Right to Development: Report of the Secretary-​General General Assembly, 49th Session, UN Doc A/​49/​653 (10 November 1994), para 17. 26 Report of the fifth meeting of persons chairing the human rights treaty bodies, General Assembly, 49th Session, UN Doc A/​49/​537 (19 October 1994), Annex, para 22 (noting that ‘human rights should have a high profile in all relevant UN activities’). 27 GA Res 67/​226 (21 December 2012), para 58.

716  Georges Minet Having posited that one ‘characteristic of the United Nations system [was] its function as facilitator, convenor, advocate and repository for many norms and standards with universal applicability’, the Secretary-​General followed up in 2015 by stressing that the system could ‘do more to strengthen the linkage between its operational development activities and normative dimensions at the global, regional, and country levels’.28 Indeed, he observed that it was ‘difficult to characterize the activities of the entities of the United Nations development system solely as ‘operational’ in the word’s strict connotation since they carry out a number of development activities that are anchored in normative mandates’.29 For sure, such frankness of language would not have been conceivable a mere decade ago, much less in the 1990s. The general trend towards an increasing legalization in international relations also helped in building norm-​awareness, as it was coupled with an emerging consensus about the role legal reforms play in development. In sum, there has been for long ample legal justification to support the notion that UN system coordination, given that development issues are its principal object, falls short of its mandate if and when—​and it still does today, albeit to a much diminished extent—​it fails to integrate a human rights perspective. The emerging positive international law of development is now acknowledged as providing the framework for inter-​ agency efforts to address the programme implications of the reciprocal relationship between rights and development.

(b)  The enduring paradigm: development as democracy, good governance and the rule of law Work on development and work on human rights proceeded for the longest time on separate courses, a textbook case of insulation between policy domains that would otherwise benefit from alignment.30 In this context, the strength of legal injunctions could never be relied upon, at least on its own, to steer human rights towards the heart of the UN’s agenda. Changing power configurations and political attitudes played the biggest part, although the process is a slow and complex one. For rights language and mandates to secure a place in UN documents on economic development, a long-​standing goal of ‘Northern’ diplomacy had to be achieved, that is, breaking an unwritten rule of UN negotiations, namely, that to avoid discussions being ‘poisoned’ by conditionality, the UN development agenda should exclusively address strictly international matters, as opposed to those pertaining to the domestic management of the economy. By the time the latter became part of the equation, issues of

28 Implementation of General Assembly resolution 67/​226 on the quadrennial comprehensive policy review of operational activities for development of the United Nations system: Report of the Secretary-​General, General Assembly, 71st Session, UN Doc A/​71/​63–​E/​2016/​8 (31 December 2015), para 278. 29 Ibid, para 14. See also GA Res 71/​243 (1 February 2017), para 21(b). 30 See UN Department of Economic and Social Affairs, Social Justice in an Open World, The Role of the UN (UN, 2006).

Human Rights Co-ordination within the UN System  717 governance, rule of law, and ultimately human rights, were bound by the 1990s new political agenda to become part of the policy mix required for development. Most relevant for the purposes of human rights was the increased insistence on the relatedness of the rule of law, development, and democracy. In a forceful statement issued after barely six months in office, Boutros-​Ghali made known his ‘long-​held view that it is futile, if not counterproductive, to separate out the political and the economic and social missions of the Organization’. Support for development and support for democratization and human rights came to be seen increasingly one and the same from a Charter perspective. The documents adopted in 1993 in Vienna asserted that ‘democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing’ (Part I, para 8). While the Agenda for Peace linked democracy with respect for rights and fundamental freedoms, the Agenda for Development held that ‘democracy is a fundamental human right, the advancement of which is itself an important measure of development’. Boutros-​Ghali went on to vigorously assert definite responsibilities for the UN in promoting democracy within as well as among states.31 His successor, Annan, similarly emphasized the value of the rule of law, human rights, and democracy for pursuing the twin agendas of security and development.32 In the view of his chief of staff, the UN was then ‘at the center of a network of likeminded peoples and governments and organizations sharing a common agenda of pushing the promotion of democracy [and] similarly pushing for a stronger regime of human rights protection’.33 Each of the consensus instruments on development cooperation adopted in the 1990s contained explicit references to human rights. In a definitive turning-​point, the most solemn of these, the landmark Declaration on International Economic Cooperation, agreed at the 18th Special Session of the General Assembly (1990), stated that ‘the full utilization of human resources and the recognition of human rights stimulate creativity, innovation and initiative’ (our emphasis). Similar language was used in the UNCTAD ‘Paris Programme of Action for the Least Developed Countries for the 1990s’, which specified that respect for human rights, ‘along with democratization and observance of the rule of law, is a part of the process of development’. The International Development Strategy for the Fourth UN Development Decade (1991–​ 2000) was also notable for holding that it ‘should help provide an environment that supports the evolution everywhere of political systems based on consent and respect for human rights, as well as social and economic rights, and of systems of justice that protect all citizens’.34 Ensuing thematic global conferences built on these notions and contributed to give them a much firmer anchoring. The culmination of the process is found in the Agenda for Development adopted by the General Assembly in June 1997, which prescribes an ‘integrated approach to development’ and states that ‘respect 31 B Boutros-​Ghali, ‘Democracy: A Newly Recognized Imperative’ (1995) 1 Global Governance 3–​11; B Boutros-​ Ghali, An Agenda for Democratization (UN, 1996). 32 Annan, above n 3, para 128. 33 M Malloch-​Brown, ‘UN Reform, Democracy and Human Rights’, 6 October 2005, available at: www.fpa.org. 34 GA Res 45/​199 (21 December 1990), para 13.

718  Georges Minet for all human rights and fundamental freedoms’ features among ‘the indispensable foundations for development’.35 Combined pressure from the international donor community and the civil society sector in both North and South is responsible for the stronger diplomatic validation of an approach which had until then remained rhetorical at best. For its part, the Non-​Aligned Movement had long insisted on the interdependence and indivisibility of human rights and denounced their selective use for political motives and the tendency to neglect economic, social and cultural rights, which it deemed intimately relevant to basic human needs. But reference to classical rights was also present in the Southern view that ‘a democratic environment which guarantees human rights is an essential goal of development centred on the people as well as a crucial means of accelerating development’.36 In sum, the South combined, at times paradoxically, a formal commitment to abide by the Charter and other human rights instruments, together with a rejection of conditionality and perceived attempts by the North to impose its ideological models. Unlike the case of the gender paradigm, the explicit inclusion of human rights in the new consensus on development was not tantamount to a carte blanche delivered to UN institutions to engage in across-​the-​board mainstreaming. Instead, a look at the concepts introduced over the 1990s in institutional and diplomatic parlance reveals an evident reluctance to address, much less elaborate on, human rights per se for most of that period. Only since 2000 have explicit endorsements of the legitimacy of rights-​ based development policies cropped up in the system. A good example of this hesitation is the 2001 Programme of Action for the LDCs. Deeming that poverty eradication required ‘a broad approach’ beyond ‘sheer economic aspects’, the Programme, had put ‘respect for all internationally recognized human rights’ among the issues that needed ‘an increased focus’. Actions towards their promotion and respect by LDCs were pledged as part of the participants’ commitment with respect to ‘good governance’.37 However, despite a ritual mention in that latter context, their mainstreaming into development policies—​unlike that of gender—​was not included by the 2002 Monterrey Consensus among the actions that the heads of State and Government resolved to ‘encourage’ in order ‘to strengthen the effectiveness of the global economic system’s support for development’.38 These omissions may seem like details, but they are symptomatic of some of the very real power struggles that occurred around the increased diplomatic inclusion of the rights language at the heart of development initiatives.

35 Ibid, para 27. See also para 44. Similar language was used in the Programme for the Further Implementation of Agenda 21, General Assembly, 19th Special Session, UN Doc A/​RES/​S-​19/​2 (19 September 1997), para 23. 36 The South Commission, The Challenge to the South, Report of the South Commission (Oxford University Press, 1990) 80. 37 Program of Action for the Least Developed Countries, General Assembly, Third United Nations Conference on the Least Developed Countries, UN Doc A/​CONF.191/​11 (8 June 2001), para 9, 25, 29(b). 38 Report of the International Conference on Financing for Development, Monterrey, Mexico, 18–​22 March 2002, UN Doc A/​CONF.198/​11, paras 11 and 64. The 2004 UNCTAD Sao Paulo Consensus also restricts itself to a mere mention in a generic ‘good governance’ paragraph.

Human Rights Co-ordination within the UN System  719 The assumption of ‘good governance’ as a recipe for a successful economy offered a key concept, with the understanding that its core characteristics are at least related to the Universal Declaration of Human Rights.39 While sometimes intensely problematic, the concept of ‘good governance’, in tandem with that of advancement of the rule of law40 has shown itself elastic enough to induce shifts in policy. The ‘participation’ paradigm was of similar import, closely connected to both rights and governance. As to the notion of ‘citizenship rights’ and the social exclusion approach, both popular in development strategies, they sought to incorporate ‘the condition of citizenship directly into development policy analysis’ and to study the macro-​and micro-​dynamics of rights exclusion.41 Clearly, though devoid of a legal content, policy recommendations inspired by such outlooks helped to mainstream human rights requirements into development assistance, and to legitimize substantive, rather than formalistic, institutional dialogue among the human rights and the economic regimes. They were also seen to address the relationship between the sustainability of democratization processes and the fulfilment of social and economic rights, that is, the issue of consolidating of new democracies. The increasing emphasis on the pervasive role of civil society and the progressive upgrading of its relationship with the UN system at both domestic and international levels similarly assigned a new quality to rights considerations. Of course, in turn a systematic emphasis on the human purpose of economics has instrumental relevance to the advancement of human rights coordination. Concepts linked to human development, such as empowerment and the notion of an enabling policy environment have incorporated, often explicitly, the idea of respect for human rights. In the end, reaching the so-​called ‘overarching goal’ of poverty eradication assigned by political consensus to the UN system implies that the programmatic separation of human rights and development must be overcome: thus, it can no longer simply be held that fulfilling economic and social rights is UN business, while the poverty objective is purely the concern of the World Bank. In 2005, ‘advancing human rights, promoting democracy and strengthening good governance’ were presented as ‘three interlocked and mutually reinforcing objectives’,42 a vision that has remained till today. The claim that the UN system should assist in the area of political development is of course by no means new. But this vocation was put to the forefront when the demise of communism ushered in a revival of the interest of Western foreign policy in promoting democracy, thus setting in motion a multi-​ and bilateral agenda of global support to democratic change. Emphasis was placed again on the system’s responsibility to simultaneously pursue political and economic 39 As submitted by P Landell-​Mills and I Serageldin, ‘Governance and the External Factor’ in L Summers (ed), Proceedings of the World Bank Annual Conference on Economic Development 1991 (World Bank Report, 1992) 303, 306. 40 See GA Res 70/​118 (18 December 2015). 41 G Rodgers, Overcoming Exclusion:  Livelihood and Rights in Economic and Social Exclusion (International Labour Organisation, 1994) 11. 42 Chief Executive’s Board, One United Nations:  Catalyst for Progress and Change—​how the Millennium Declaration is changing the way the UN system works (UN, 2005) para 90.

720  Georges Minet development, although this time under the guise of the ‘governance’ label. Although the focus in both UNDP and the Bank has privileged ‘popular participation’ over direct encouragement of democratic government, the gradual injection of a rights paradigm into these institutions’ mindsets seemed bound to vindicate the view that, if they both ‘were seriously to pursue micro-​democracy, it would almost certainly lead to eventual demands for more macro-​democracy’.43 Virtually everywhere, support for democratization and human rights promotion have become intimately linked, and the rights approach has begun to serve as a tool for enhancing the capacity of development institutions in respect of both.

(c)  From the Millennium to 2030: sustainable development and the ascent of the social The 2001 Millennium Development Goals stopped short of making what appeared then as a too controversial mention of a need to fully respect the Universal Declaration of Human Rights.44 Their successor, the 2015 Sustainable Development Goals could not fail to be lambasted as a monument to vacuous promises, representing at best a font of ‘inspirational rhetoric’.45 However, even strident criticism acknowledged that, if there was ‘something to salvage from the SDG debacle, perhaps it is the idealistic advocacy for “universal respect for human rights and human dignity,” not as a 2030 “target”, but just as an increasing recognition of poor people’s rights for self-​determination . . . Such advocacy is needed because there are still many aid programs that violate the rights of the poor . . . or aid that supports others who callously violate the rights of the poor’.46 Grounded in human rights as they claim to be, the SDGs have been taken to task over their omission of any reference to fundamental civil and political rights provided in the ICCPR—​whose explicit inclusion ‘should have been non-​negotiable’.47 That observation serves to confirm the valid concern that socio-​economic developmental rights risk becoming the only focus of rights coordination/​mainstreaming, to the detriment of the necessary emphasis on political and civil rights whose relevance to development goals is plainly crucial.48 Calling for the mainstreaming of the right to development in the 43 D Forsythe, ‘The United Nations, Human Rights, and Development’ (1997) 19 Human Rights Quarterly 349. 44 C Kenny, ‘MDGs to SDGs: Have We Lost the Plot?’, Center for Global Development (Online), 27 May 2015, available at: https://​www.cgdev.org/​publication/​mdgs-​sdgs-​have-​we-​lost-​plot. 45 W Easterly, ‘The SDGs Should Stand for Senseless, Dreamy, Garbled’ Foreign Policy (Online), 28 September 2015, available at:  https://​foreignpolicy.com/​2015/​09/​28/​the-​sdgs-​are-​utopian-​and-​worthless-​ mdgs-​development-​rise-​of-​the-​rest/​. On the SDGs see GA Res 70/​ 1 (25 September 2015); and www. sustainabledevelopment.un.org. 46 Easterly, ibid. 47 M Sengupta, ‘The Sustainable Development Goals: An Assessment of Ambition’, E-​International Relations (Online), 18 January 2016, available at:  http://​www.e-​ir.info/​2016/​01/​18/​the-​sustainable-​development-​goals-​ an-​assessment-​of-​ambition. However, the first Ministerial Declaration by the Economic and Social Council on the implementation of the 2030 Agenda contained a political commitment to respect and promote ‘all human rights’: Ministerial declaration of the high-​level segment of the 2016 session of the Economic and Social Council on the annual theme “Implementing the post-​2015 development agenda: moving from commitments to results”, Economic and Social Council, 2016 Session, UN Doc E/​HLS/​2016/​1 (29 July 2016), para 4. 48 See D Kaufmann, ‘Human Rights, Governance, and Development, an empirical perspective’ 2006 Development Outreach 10.

Human Rights Co-ordination within the UN System  721 operations and objectives of the UN development system, as well as stressing the need for the international financial and multilateral trading systems to do likewise49 fulfils only a part of the rights brief. In addition to SDGs’ wide sphere, a related but distinct policy domain has recently regained pride of place in the list of multilateral priorities. After a long period of relative demise, so-​called ‘social development’ issues have risen to some prominence with the 1995 Declaration and Programme of Action of the Copenhagen Social Summit, which offered a framework for promoting social development and providing the setting of a global dialogue—​often framed in a rights perspective—​on a variety of social challenges. More recently, a concrete illustration of the rights dimension of the renewed social development agenda—​and of the measure of interagency cooperation it brings along with it—​can be found in the gradual elevation of the Social Protection Floor (SPF) concept into an innovative plank of international social policy. A joint endeavour of the ILO and the World Bank, the SPF seeks to guarantee an entitlement to a minimal set of social protections. First and foremost, the case for the social protection floor uses a rights framework, as it is grounded in the UDHR, the ICESCR, ILO Conventions, the Convention on the Rights of the Child and other human rights instruments.50 Launched in 2009 by the CEB, the SPF Initiative stems from the notion that ‘expanding people’s access to social protection is both a way to advance human rights and a sound economic policy’.51 An ILO Recommendation on the matter was adopted in 2012, which begins by reaffirming that ‘the right to social security is a human right’ and refers to the UDHR and the ICESCR.52 The statement on social protection floors adopted in 2015 by the Committee on Economic, Social and Cultural Rights similarly recalled that social security is ‘a human right and an economic and social necessity for development and progress’, also stressing ‘the mutually reinforcing nature of its general comment No. 19 on the right to social security and of ILO Recommendation No. 202’ and mentioning that international organizations, IFI included, had ‘a role to play in promoting the conditions necessary for the sound implementation’ of the floors.53 The matter of universal social protection, framed as it is in a rights perspective, might thus feature as a successful example of an issue-​driven process of fostering coherence, one that has been institutionalized in a ‘light, lean and agile interagency coordination mechanism’54 bringing together the various forces that can assist in turning social protection into a reality. As to the latter’s substance, the Commission for Social 49 GA Res 70/​155 (18 February 2016), para 43. 50 See for example Social protection floor for a fair and inclusive globalization, Report of the Advisory Group chaired by Michelle Bachelet convened by the ILO with the collaboration of the WHO (Report, International Labour Organisation, 2011), 33–​5. 51 Letter from UNDG Chair and ILO Director General to all UN Resident Co-​ordinators and UN Country Teams, International Labour Organisation, 24 March 2014, available at: http://​www.ilo.org/​secsoc/​information-​ resources/​publications-​and-​tools/​others/​WCMS_​245222/​lang-​-​en/​index.htm. 52 Recommendation 202, Social Protection Floors Recommendation, International Labour Organisation, 2012, Preamble. 53 Social protection floors: an essential element of the right to social security and of the sustainable development goals, Committee on Economic, Social and Cultural Rights, UN Doc E/​C.12/​2015/​1 (15 April 2015), paras 4–​5, 14. 54 See a description at www.social-​protection.org.

722  Georges Minet Development and ECOSOC held that ‘universal approaches to social policy are . . . necessary to promote the human rights commitments that underpin social development’, and that ‘nationally appropriate social protection systems can make a critical contribution to the realization of human rights for all’.55 Confronted by the contemporary rise of inequalities, the UN system social agenda is a decidedly progressive one, backed by the content of the body of international human rights: respecting these, promoting social protection and equal access to ‘quality essential public services for all’, furthering equality, inclusion, social justice and participation, as well as fundamental rights at work... Also, while it acknowledges the relevance of the rule of law/​good governance paradigms, it views them not as conduits for predominantly market-​friendly legal reforms but as pillars of distributive social policies. Political consensus on such orientations however remains shallow, and it is its extent that the coherence agenda is best placed to delineate, again using the rights dimension as both a benchmark and a tool.

(d)  The ways of human rights coordination As the coordination role of the UN Secretariat, the High Commissioner and ECOSOC generally has already been examined in the relevant chapters, this section will not specifically explore it. Rather, it will try to give a sense of the mechanisms that can be put to good use in fostering greater human rights coordination, as well as some of their results. i. From the 1990s conferences to Agenda 2030 The intergovernmental goal-​setting process is one through which international organizations have sought to redefine their activities in a way which enhances their legitimacy. It aims, particularly through large defining conferences, to establish universal consensus on the relevance and direction of wide-​ranging, yet identifiable, themes—​ from social development to gender, from human rights to population, from trade to urban growth. The need to hold such conferences—​which dates back to the early 1970s—​no doubt reflects structural weaknesses in the UN system. Thematic gatherings seek to raise awareness of a series of connected problems faced by the globalizing world polity which inadequately come to the fore through the normal operation of existing institutions. The regular fora, it is felt, lack the legitimacy offered by top-​level gatherings, which produce consensus on declaratory and programmatic documents. Also, the sectoral bias inherent in the structure of the system runs contrary to realities that cannot be reduced to single-​factor explanations: often, avowedly specialized institutions cannot be relied upon to advocate other than partial courses of action, and coordinating devices such 55 Rethinking and strengthening social development in the contemporary world, Report of the Secretary-​General, Commission for Social Development, 54th Session UN Doc E/​CN.5/​2016/​3 (23 November 2015), para 13.

Human Rights Co-ordination within the UN System  723 as ECOSOC have not proved up to the task. Hence the recourse to large-​scale attempts to integrate several sectoral perspectives in a holistic way. As one commentator put it, ‘even international agencies allergic to coordination would be spurred to cooperate by the prospect that their collective bosses would make decisions locking in global policy mandates for the system at large’.56 Human rights have gradually become central to these paradigm-​defining exercises. For example, since Vienna, human rights were said early on to ‘have become a fundamental reference for all other global themes on the UN Social Agenda’, as that gathering ‘supplied updated ‘enlightened’ tools to the approach adopted by all conferences’ that followed.57 Although rights language is present in all of the texts adopted at these conferences, the 1995 Copenhagen Declaration and Programme of Action provided the clearest illustration of the degree to which it could be incorporated in non-​human rights-​ specific agreements. In the Declaration on Social Development, the Heads of State and Government launched ‘a new commitment to social development . . . based on a spirit of partnership that puts the needs, rights and aspirations of people at the centre of our decisions and joint actions’ (para 10, our emphasis). The Declaration also enumerated a series of actions to promote and protect ‘all human rights and fundamental freedoms, including the right to development as an integral part of fundamental human rights’.58 Until the 1990s, however, any serious attempt to sharpen mechanisms to translate newly agreed rhetoric into practical, administratively enforceable coordination prescriptions would have broken the consensus. Early follow-​up methods were largely ineffective. Indeed, the reviews prepared by the UN Secretariat on follow-​up to global outcomes typically used to ignore, for political and/​or bureaucratic reasons, the explicit rights dimension present in those agreements. Monitoring of the Fourth International Development Strategy (1991–​2000), for instance, left untouched that part of the document, innovative as it was, that referred to human rights. During the 1990s, by contrast, conference activity both incorporated this dimension in respective conference themes and set up follow-​up mechanisms with the potential to bring about a modicum of genuine attention in this respect. It is noteworthy that the programmes emerging from conferences have increasingly laid down prescriptions for monitoring which, in contrast to the vaguely worded admonitions to coordination that used to be standard practice, embody more precise agreement on the shape of the required arrangements. All in all, the conferences were described in 2005 by the Secretary-​General as having ‘served to evolve a comprehensive, consensual, normative framework to deal with the developmental challenges that cut across a vast array of interlinked issues’, amongst

56 J Laurenti, ‘Summit Asymmetry:  The United States and UN reform’ (2005) 40 The International Spectator 4, 8. 57 L Alves, ‘The United Nations, Postmodernity, and Human Rights’ (1998) 32 University of San Francisco Law Review 3, 499, 505. 58 Copenhagen Declaration on Social Development and Programme of Action of the World Summit for Social Development, World Summit for Social Development, UN DocA/​CONF.166/​9 (19 April 1995), para 15.

724  Georges Minet them human rights.59 By then, development goals had indeed become increasingly enmeshed in the language of human rights, thus powerfully remodelling the UN agenda on these matters. No instrument exemplifies this trend more than the Millennium Declaration, a broad document dedicated to the drastic reduction of world poverty, which stated the member states’ commitment to ‘spare no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally recognized human rights and fundamental freedoms, including the right to development’, and their resolve to ‘respect fully and uphold the Universal Declaration of Human Rights [and] strive for the full protection and promotion in all our countries of civil, political, economic, social and cultural rights for all’.60 However, the crafting of the Millennium Development Goals proved disappointing from the rights standpoint.61 The 2005 report of the Millennium Project had posited at the start that the quantified targets of the MDGs are ‘basic human rights—​the right of each person on the planet to health, education, shelter, and security as pledged in the UDHR and the UN Millennium Declaration’.62 But the Goals themselves missed the opportunity to benefit from a rights framework, their setting having, in the judgment of the OHCHR, ‘partly ignored the legal force and instrumental value of human rights’.63 The practical remedy then was to work for the incorporation of human rights into MDG activities through a rights-​based approach, a task felt to be mandatory under the Millennium Declaration. Also, far from eclipsing the earlier thematic agreements, the MDGs were understood as closely linked to them, and the concept of the internationally agreed development goals (IADGs) endorsed by the 2005 Outcome had been intended to boost the implementation of the major conferences, of which Vienna was one. A more general sense that the rights dimension of anti-​poverty policies was being neglected at the time had actually prompted the CESCR to recommend the integration of human rights standards in those policies and to emphasize the responsibilities of international organizations to support developing countries to fulfil their core obligations regarding food, education, and health.64 The High Commissioner had also kept advocating for ‘a human rights-​sensitive understanding of poverty’, insisting that: human rights and development policies are mutually reinforcing. They use different yet complementary tools and strategies for achieving the same objective: improving 59 Towards achieving internationally agreed development goals, including those contained in the Millennium Declaration Report of the Secretary-​General, Economic and Social Council, Substantive Session, UN Doc E/​2005/​ 56 (3 May 2005), para 3. 60 GA Res 55/​2 (8 September 2000) [United Nations Millennium Declaration], paras 24–​5. 61 On the relationship between the MDGs and human rights, see M Langford, A Sumner, and A Ely Yamin, The Millennium Development Goals and Human Rights, Past, Present and Future (Cambridge University Press, 2015). 62 UN Millennium Project, Investing in Development, A practical plan to achieve the MDGs (United Nations Development Program, 2005) 1. 63 OHCHR, Claiming the Millennium Development Goals: A human rights approach, (Report, United Nations, 2008), 4. 64 Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights: Poverty and the International Covenant on Economic, Social and Cultural Rights, Committee on Economic, Social and Cultural Rights, 25th Session, UN Doc E/​C.12/​2001/​10 (10 May 2001), para 2.

Human Rights Co-ordination within the UN System  725 human wellbeing. But while development strategies prioritize economic growth, human rights establish universally accepted legal guarantees to protect the freedom and equality of all individuals.65

The OHCHR justly saw that rights deserved a more sophisticated and ambitious emphasis and judged that, if accountability arising from grounding the MDGs in human rights could act as insurance against the ‘debasing of global promises’,66 it was only too clear, ten years after their adoption, that ‘the objectives of human wellbeing and dignity for all, enshrined in the Universal Declaration of Human Rights, [would] not be achieved if the MDGs are pursued in isolation from human rights’.67 As a matter of fact, the 2010 Review Summit on the MDGs, after reaffirming the importance of ‘respect for all human rights, including the right to development’, had to stress—​before proceeding to elaborate specifically on the rights to food, education and health—​that ‘the respect for and promotion and protection of human rights is an integral part of effective work towards achieving the MDGs’.68 Two years later, the Rio Conference on Sustainable Development insisted on the need for respect for all human rights for sustainable development,69 as the Addis Ababa Action Agenda was to do in 2015 in the context of development financing.70 One would have to wait till 2015 to witness a tangible advance. Agenda 2030, although it falls short of answering all concerns,71 is replete with references to rights and was accordingly praised by OHCHR for its unequivocal and comprehensive rights substance.72 While it presents the Seventeen Sustainable Development Goals and 169 targets as seeking ‘to realize the human rights of all’, it commits to protecting them and claims to be ‘grounded’ in the Universal Declaration and international human rights treaties, as well as ‘informed’ by the Declaration on the Right to Development.73 Also, in a remarkable innovation, it straightforwardly provides for its implementation in a manner consistent with the obligations of states under international law—​a guarantee that rights are taken seriously even though the document remains aspirational in nature. By 2015 at last, the whole UN development agenda could well be said to have been definitively framed—​some would say re-​framed—​in human rights terms by the UN 65 OHCHR, ‘Human Rights are the basis for achieving the MDGs’, available at:  http://​www.ohchr.org/​EN/​ Issues/​SDGS/​Pages/​FoundationforEngagement.aspx. 66 Arbour’s statement on the midpoint of the MDGs, 7 July 2007, available at: https://​news.un.org/​en/​story/​ 2007/​07/​224902-​senior-​un-​official-​urges-​rights-​based-​approach-​achieving-​anti-​poverty-​targets. 67 OHCHR, ‘The Millennium Goals and Human Rights’, available at: http://​www.ohchr.org/​EN/​Issues/​SDGS/​ Pages/​MDGIndex.aspx. 68 GA Res 65/​1 (19 October 2010), para 53. 69 GA Res 66/​288 (11 September 2012), annex, paras 8–​9. 70 GA Res 69/​313 (17 August 2015), paras 1, 5. 71 See Human Rights and the final draft of outcome document for the post-​2015 Development Agenda, the High Commissioner’s open letter of 27 July 2015, available at:  http://​www.ohchr.org/​Documents/​Issues/​MDGs/​ Post2015/​OpenLetter27July2015.pdf. 72 See generally www.ohchr.org/​EN/​Issues/​SDGS/​Pages/​The2030Agenda.aspx. See also the Statement by the CESCR at its 65th session on ‘The pledge to leave no one behind: the International Covenant on Economic, Social and Cultural Rights and the Agenda 2030 for Sustainable Development’ (E/​C.12/​2019/​1). 73 GA Res 70/​1 (21 October 2015), preamble, paras 8, 9, 10, and 19.

726  Georges Minet constituents. At the same time, rhetorical insistence on the need for better coherence of the system at large had increased from conference to conference. ii. Old and new champions of human rights By the end of the eighties, UN development institutions74 had undergone a ‘humanization’ process as a result of the stabilization problematique, with UNICEF promoting ‘adjustment with a human face’, and UNDP embracing ‘human development’ as the slogan for its activities. The World Bank had launched its Social Dimensions of Adjustment programme, with a view to incorporating a social content in the design of macroeconomic strategy and had engaged in a dialogue with social development agencies. Not content with adhering to the worthy phraseology of ‘sustainable, people-​ centred human development’, a number of organizations then chose to recast their whole action as the championing of rights. Instances of this are the pace-​setting 1996 ‘mission statements’ of UNICEF and UNFPA, which reflect a clear concern to frame their activities through a rights lens. UNICEF’s work was said to be guided by the Convention on the Rights of the Child,75 UNFPA recognized the indivisibility and interrelatedness of all human rights, including the right to development. UNIFEM, for its part, set about mainstreaming its expertise in women’s rights into the UN system, using the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The entities of the UNDS have repeatedly emphasized their commitment to mainstreaming human rights in their work and agreed in 2003 upon a ‘common understanding’ about the content of a human rights-​based approach (HRBA) to programming. This common mould implies that their activities should further the realization of human rights laid down in the UDHR and other international instruments, and that the standards contained in and principles derived from the latter are to guide all development cooperation and programming in all sectors and phases of the programming process. Development cooperation must boost the capacities of ‘duty-​bearers’ to meet their obligations and/​or of ‘rights-​holders’ to claim their rights.76 However, the general observation that ‘there is not one uniform model for integrating human rights in development policy’ holds true with respect to the components of the UNDS.77 (i)  UNDP The case of UNDP is illustrative of the transformation of entities initially devoid of any normative or, at least, rights ambition. Its evolution has been most significant,

74 In UN parlance, the United Nations development system (UNDS) refers to the Funds, Programmes and Specialized Agencies, while the Bretton Woods Institutions are in a category of their own. 75 A review of UNICEF’s record on this issue, as well as of UNFPA and UNIFEM’s relevant tools is at Integrating human rights into development: Donor approaches, experiences and challenges (World Bank and OECD 2nd edn, 2013)143–​9,  192–​5. 76 Statement on a Common understanding of a human rights based approach to development cooperation, endorsed by the United Nations Development Group (UNDG), available at: http://​hrbaportal.org/​the-​un-​and-​hrba. 77 D D’Hollander, A Marx, and J Wouters, Integrating Human Rights in Development Policy: Mapping Donor Strategies and Practices (Leuven Centre for Global Governance Studies, 2013) 49.

Human Rights Co-ordination within the UN System  727 to the point that its espousal of a people-​centred credo famously, if not radically, contributed to the wide challenge to the so-​called Washington Consensus from the late 1980s. While claiming a leading role in the twin fields of governance and support to civil society, UNDP had refrained until 1998 from explicitly making room for human rights considerations, preferring to use the less sensitive language of the social sciences. However, it was simultaneously cooperating with the then UN Centre for Human Rights on many projects in various regions. Moreover, it had linked the content of its Human Development Reports to the Declaration on the Right to Development and began to explore the relationship between rights and human development, with a view to adding legal backing to its chosen paradigm. By 1998 UNDP had adopted a specific instrument aimed at clarifying its approach and setting out which steps should be taken to enable it to mainstream human rights in its programmes. The Secretary-​General’s reform initiative, ascribing to human rights a ‘cross-​cutting’ character, proved opportune for committing UNDP to recast its programmes as ‘an application of the right to development’ and to adopt an explicit rights approach. Whilst UNDP made the strengthening of rights a part of the ‘practice area’ of ‘democratic governance’, it advocated for rights integration in its whole programme. Though well aware of the constraints on its influence at the country level,78 UNDP has come to see itself as a coordinating agent in the human rights field, given its overall mandate for coordinating country-​specific operational activities. Areas and methods of cooperation with the High Commissioner were laid out in a 1998 memorandum of understanding. Together, they launched in 1999 a joint ‘Human Rights Strengthening’ Programme (HURIST). In a symbolic consecration of the institution’s shift over a decade from the first Human Development report: its 2000 edition consisted in an elaborate defence and illustration of the proposition that human rights are not ‘a reward for development. Rather they are critical to achieving it’.79 Following its endorsement of the UN Common Understanding, UNDP started in 2003 to submit to the Commission on Human Rights a report on its activities, including those directly relevant to resolutions of the Commission. The 2005 UNDP Practice Note, Human Rights in UNDP, detailed the implementation of the three key features of its rights work. These include support for the development of national human rights systems, the promotion of the application of a rights-​based approach to programming, and a greater engagement with the international human rights machinery. The Note stressed that ‘human rights are the business of every staff member, and that partnerships with other actors, notably the OHCHR, must be a defining characteristic of UNDP support with respect to human rights’. Having thus adhered to the principle of mainstreaming, UNDP stated in its 2008 Strategic Plan that it would ‘uphold universal United Nations norms and standards, 78 Specifically the need for an official government request for ‘almost all UNDP activities’ and for its approval to work with civil society partners. 79 UNDP, Human Development Report 2000 (Oxford University Press, 2000) foreword, iii.

728  Georges Minet including those related to human rights’, and proceeded to carry out a ‘Global Human Rights Strengthening Programme’ (2008–​2013) which counted among its purposes that of bettering the system’s collective approach to human rights integration. The Strategic Plan (2014–​2017) engagement principles recognized ‘the intrinsic value of the body of economic, political, social, civil and cultural rights established by the United Nations that are pursued through the human rights-​based and other approaches, as well as other commitments made through multilateral agreements’.80 Promotion of ‘inclusive and effective democratic governance’ is construed by UNDP as key to supporting national human rights institutions, and successive Administrators have restated the value of their governance portfolio in generally facilitating human rights implementation.81 UNDP’s rights advocacy is relayed through its annual Human Development Reports, whose 2014 edition contained a plea for ‘a global social contract would recognize the rights of all people to education, health care, decent jobs and a voice in their own future’.82 Finally, the Social and Environmental Standards (SES) adopted by UNDP in 2014 contain a restatement of its policy principles in the matter. Finally, in its capacity as chair of UNDG, UNDP has enjoyed a leadership status within the UNDS, that has enabled it to play an active role in the longstanding search for improved system coherence with regard to human rights.83 (ii) The sectoral agencies In contrast to the various UN funds and programmes, the sectoral agencies have traditionally seen their role as contributing to economic and social rights. The recent steady emphasis on rights has served, however, to highlight their mandates’ potential to promote and defend the respective legal frameworks applicable to their sphere of activities, such as the rights to health, food, education, employment, etc. FAO and WHO, for example, are making extensive use of the rights perspective. By contrast, WIPO and the WTO remain challenged to frame their action in rights language and law.84 Having pledged to mainstream human rights into healthcare programming and policy-​making, the WHO has committed to strengthen its capacity to that effect and to advance the right to health, enshrined in its Constitution and on which the goal of universal health coverage is based, through advocacy, input into UN mechanisms and development of indicators.85 ‘Respect for the right to health—​according to its 80 Changing with the World, UNDP Strategic Plan 2014–​17 (UNDP, 2013), 16. See also Mainstreaming Human Rights in Development Policies and Programming: UNDP Experiences (UNDP, 2012). And Evaluation of the UNDP Global Human Rights Strengthening Programme 2008–​2015 (2015). 81 H Clarke, ‘Remarks at the first Regular Session of the Executive Board of UNDP’, New  York, 31 January 2011, available at:  http://​www.undp.org/​content/​undp/​en/​home/​presscenter/​speeches/​2011/​01/​31/​helen-​clark-​ remarks-​first-​regular-​session-​of-​the-​executive-​board-​undp-​unfpa.html. 82 Human Development Report:  Sustaining Human Progress:  Reducing vulnerability and building resilience (UNDP, 2014), 12. 83 Since 2018, the UN Sustainable Development Group has replaced the UNDG, and is chaired by the Deputy Secretary-​General with the UNDP Administrator as vice-​chair. 84 The particular relationships of the WTO and WIPO to the rights framework are not examined in this brief study. 85 See generally http://​www.who.int/​topics/​human_​rights/​en/​.

Human Rights Co-ordination within the UN System  729 Director-​General—​is a hallmark of good government’86 and the legal underpinnings and requirements of the agency’s action have recently been thoroughly explored.87 As concerns the FAO, the 2004 Right to Food Guidelines aim to assist states in implementing the progressive realization of the right to adequate food, for which a specific human rights based approach was developed in 2006.88 The commitment was reaffirmed in 2014 on the occasion of the ten-​year anniversary of the Guidelines’ adoption, with the Committee on World Food Security deciding to, inter alia, encourage all its stakeholders to promote policy coherence in line with the Guidelines.89 The UN Special Rapporteur on the Right to Food appointed in 2014 has commented on the remarkable level of collaboration between FAO and the Committee on Economic, Social and Cultural Rights, especially in the context of food crises.90 As to UNESCO and ILO, the two agencies which have always functioned under a definite human rights paradigm, they confirmed over the last two decades the pride of place given to the rights dimension at the heart of their mandates. Support for the realization of the right to education is central to UNESCO’s mission and is performed through standard-​setting and cooperation, as well as monitoring by its Committee on Conventions and Recommendations and the CESCR.91 In response to the Secretary General’s appeal to mainstream human rights in the system, it adopted in 2003 a Human Rights Strategy, and after the implications of the HRBA for UNESCO practice had been pondered in 2005, it elaborated in collaboration with UNICEF a framework ‘for the realization of children’s right to education and rights within education’.92 UNESCO’s ‘Culture of Peace’ concept provides another tool for rights promotion.93 For its part, the ILO—​constitutionally endowed with a rights mandate—​adopted in 1998 a Declaration on core labour rights which it believed ‘should become a common objective of the multilateral system as a whole’—​an undertaking that the ILO’s Decent Work paradigm, which has been described as ‘firmly rooted in human rights 86 M Chan, ‘Keynote address at the Human Rights Council panel on promoting the right to health through enhancing capacity-​building in public health’, Geneva, 8 June 2017, available at: http://​www.who.int/​dg/​speeches/​ 2017/​human-​rights-​council/​en. 87 Advancing the right to health: the vital role of law (WHO, 2017). See also Human Rights and Gender Equality in health sector strategies: how to assess policy coherence (WHO, 2011). A recent Joint WHO/​UN statement on ending discrimination in health-​care settings aims to put an end to related violations of fundamental human rights protected in international treaties and in national laws and constitutions: WHO, ‘Joint United Nations statement on ending discrimination in health care settings’ (Media release, 27 June 2017), available at: http://​www.who.int/​ entity/​mediacentre/​news/​statements/​2017/​discrimination-​in-​health-​care/​en/​index.html. 88 See generally http://​www.fao.org/​righttofood/​about-​right-​to-​food/​human-​right-​principles-​panther/​en/​. 89 Right to Food Ten-​Year Perspective, Committee on World Food Security, 41st Session, UN Doc CFS 2014/​41/​7 (18 October 2014). See also The Right to Food: Past commitment, current obligation, further action for the future—​A Ten-​Year Retrospective on the Right to Food Guidelines (FAO, 2014). 90 H Elver, ‘Speech delivered at the Technical Dialogue on 10 Years of the Implementation of the Right to Food Guidelines’, Rome, 3 July 2014, available at:  http://​www.fao.org/​fileadmin/​templates/​righttofood/​images/​img_​ event/​2014_​VG10/​FAO_​SpecialRapporteurRTF_​speech.pdf. 91 See http://​www.right-​to-​education.org. 92 A Frankovits, Mainstreaming Human Rights, the Human Rights-​based Approach and the UN System, Desk Study Prepared for UNESCO (Human Rights Council of Australia, 2005); A Human Rights-​Based Approach to Education (UNICEF, 2007). 93 See GA Res A/​RES/​53/​243 (6 October 1999); and UNESCO’s Programme of Action, Culture of Peace and Non-​ Violence: A vision in action (UNESCO, 2013).

730  Georges Minet discourse’,94 is itself set to advance. The World Commission on the Social Dimension of Globalisation specified that ‘all relevant international organizations should assume their responsibility to promote [core labour standards] and ensure that their policies and programmes do not impede their realization’. Mainstreaming ‘decent work’ throughout the system was mandated by ECOSOC in a 2006 Ministerial Declaration with a view that rights at work be promoted and respected throughout the UN system—​ an objective that the 2008 ILO Declaration on Social Justice for a Fair Globalization also aimed to further. The 2009 Global Jobs Pact, endorsed by ECOSOC, recalls that respecting fundamental principles and rights at work is critical to economic recovery and development. Moreover, to the ILO’s particular satisfaction, Goal 8 of the 2030 Agenda calls for the promotion of decent work for all and for labour rights to be protected. Finally, its 2019 Centenary Declaration for the Future of Work also recommits the ILO to promote workers’ rights. (iii) The system within the system: the finance institutions The steady ‘mission creep’ of the IFIs has been accompanied by a constant scrutiny of their evolving attitude towards the human rights challenge. Not that concerns had not been articulated earlier, as a result of a realization since the mid-​seventies that (a) those institutions, as UN agencies, could not sidestep obligations in that respect and (b) their structural adjustment prescriptions adversely affected the fulfilment of many rights, political, economic and social, of the populations of borrowing countries. What differentiates the BWIs from their sister agencies is that they are in a position to actually undermine the entire human rights endeavour at both global and national levels. Such capacity for nuisance came to be forcefully denounced while the positive agendas of the rights-​oriented agencies were made to suffer from the policies advocated by the quasi-​ autonomous financial arm of the UN. Originally tone-​deaf to demands that they pay heed to the UN human rights agenda, the Washington-​based agencies have gradually shown a measure of willingness to entertain the notion that their actions do not occur in a legal vacuum—​hence the vexed issue of their compatibility with rights obligations. Prompted both by civil society ‘watchers’ and UN rights and coordination bodies, they embarked on an exercise mixing juristic introspection and public relations. This eventually led them to broadly acknowledge both the relevance of rights to development and the impact of their own policies, thus raising expectations of change. The mid-​1990s saw the beginning of an evolution in the Bank’s approach, in particular. By 1994, it had articulated a self-​styled ‘strategy for economic and social human rights’, deemed consistent with its Articles of Agreement. A definition of core workers’ rights was offered by the 1995 edition of the World Development Report. By 1998, it was seeking to craft a persuasive picture of its role, asking that one consider that its 94 J Budd Achieving Decent Work by Giving Employment a Human Face (ILO, 2004) 5. The ILO concept of Decent Work seeks to demonstrate the value of an integrated approach to policy: J Somavia, Perspectives on Decent Work (ILO, 2000).

Human Rights Co-ordination within the UN System  731 economic and social approach to development advanced a comprehensive vision of human rights.95 The Bank cast its objective of poverty reduction in the framework of the realization of the right to development. The High Commissioner went as far as to qualify the Bank Group’s recognition that it had an express role to play in the promotion and protection of human rights as ‘a defining moment’.96 The Bank’s endorsement in 1999 of the ‘Comprehensive Development Framework’ principles appeared to hold the promise of mainstreaming over time. However, the omission of the rights and entitlements language in a flagship piece such as the World Development Report 2000/​2001 on ‘Attacking Poverty’ could not fail to be noticed97 At any rate, and given the recurrent argument over the extent of the Bank’s legal powers to engage in human rights, it seemed fair to say that its support for nationally owned poverty reduction strategies (PRS) at least provided ‘a potential mechanism for governments to identify ways of fulfilling their human rights obligations without having external conditions imposed on them’.98 The new PRS approach, however, did not demonstrate any actual sense that it should be rights-​based. As it stood a decade ago, the saga of the handling by the Bank of rights issues appeared to warrant the judgment that its record remains ‘mixed’,99 or ‘patchy at best . . . [as], essentially, it comprises some rhetorical statements from the top; some specific, targeted programs at the operational level; and very little in the middle’100 Contrary to, say, UNDP, the Bank could be described then as having ‘no integrated, global policy that directly and explicitly incorporates human rights into its development agenda’.101 The general sense was that proof of a convincing transformation of the Bank’s outlook could only come from the adoption of a brief to systematically mainstream rights into its operations. The High Commissioner had pointed out in 1999 that proof of real change would occur when the IFIs ‘implement on the ground policies that are really designed in such a way as to secure economic, social and cultural rights and the right to development’.102 For sure, there was in 2006 an attempt to cast in legal terms the content of the obligations incumbent upon it under international rights law.103 However, due to a mix of political, bureaucratic and quasi-​cultural reasons, it remained inconclusive, with the result that human rights could be said to have largely remained ‘a marginal issue 95 Development and Human Rights: The Role of the World Bank (World Bank, 1998). 96 M Robinson, ‘Realising Human Rights: Take Hold of it Boldly and Duly’, Romanes Lecture 1997, Oxford University, 11 November 1997. 97 S Maxwell, ‘WDR 2000: Is There a New ‘New Poverty Agenda?’ (2001) 19 Development Policy Review 146–​7. 98 Realising human rights for poor people (DFID, 2000), 21. 99 M Darrow, ‘A Human Rights-​Based Approach to Development: Theoretical and Operational Issues for the World Bank’ (2006) 2 The World Bank Legal Review: Law, Equity, and Development, 397. See also W Van Genugten, The World Bank Group, the IMF and Human Rights (Intersentia, 2015). 100 D Kinley, ‘Human Rights and the World Bank: Practice, Politics, and Law’ in C Sage and M Woolcock (eds), The World Bank Legal Review: Law, equity, and development, Volume 2 (Martinus Nijhoff, 2006) 366. 101 Ibid, 372. 102 M Robinson, ‘Constructing an International Financial, Trade and Development Architecture: The Human Rights Dimension’, OHCHR, 17th Presidential Lecture, Zurich, 1 July 1999. 103 R Danino, ‘The Legal Aspects of the World Bank’s Work on Human Rights: Some preliminary thoughts’, in P Alston and M Robinson (eds), Human Rights and Development: Towards a Mutual Reinforcement (Oxford University Press, 2004) 509.

732  Georges Minet at the Bank’104—​while its private sector arm, the International Finance Corporation, had actually entertained a positive approach to rights with its Performance Standards in the environment and social fields. A 2010 analysis confirmed that integration of human rights at the Bank Group remained ‘low’, and recommended the introduction of human rights risk management practices into its operations by 2015, followed by the adoption of an institution-​wide strategy.105 By 2016 however, the picture still was of a striking contrast between the Bank and the rest of the UN agencies, prompting the Human Rights Council’s special rapporteur on extreme poverty and human rights to denounce as ‘largely political’ the Bank’s long-​standing reticence to acknowledge any need for an explicit, if ‘nuanced’, policy on human rights. Branded a ‘human rights-​free zone’ in spite of its ‘disingenuous’ rhetoric of support, the Bank was challenged to finally make use of the rights language.106A protracted consultation process on a new draft social and environmental framework (ESF) provided the occasion to do so,107 yet elicited criticisms about the lack of meaningful references in the proposed wording of the ESF.108 That the subject-​ matter remains controversial in the eyes of many, amongst both Bank staff and the government membership, was confirmed in the final, approved version of the document, whose mention of rights remains purely rhetorical.109 In the meantime, the Bank has shown no reluctance to delve into the human rights dimensions of issues such as public services delivery, as long as it was with the proviso that it was doing so off the legal record.110 It is also troubling that the perpetual quest for legitimacy that potentially affects all international organizations can lead to practices of so-​called ‘decoupling’—​a euphemism which, in the case of the Bank’s handling of its new Environmental and Social framework, translates into allowing it ‘to symbolically cater to human rights-​ oriented actors’ legitimacy demands while not necessitating substantial changes to its core activities’.111

104 G Sarfaty, ‘Why Culture Matters in International Institutions: The marginality of human rights at the World Bank’ (2009) 103 AJIL 650. 105 K Herbertson, K Thompson, and R Goodland, A Roadmap for Integrating Human Rights into the World Bank Group (World Resources Institute, 2010). 106 Report of the Special Rapporteur on extreme poverty and human rights, General Assembly, 70th Session, UN Doc A/​70/​274 (4 August 2015), para 68. 107 See http://​consultations.worldbank.org/​consultation/​review-​and-​update-​world-​bank-​safeguard-​policies. 108 A December 2014 letter to the Bank’s President of twenty-​eight UN Special Rapporteurs and Independent Experts expressed a number of concerns with the proposed ESF and suggested means to bring a human rights dimension to the Bank’s new Framework and ensure its compliance with international law. See also, J Evans, Abuse-​ Free Development—​How the World Bank should safeguard against human rights violations (Report, Human Rights Watch, 2013). 109 World Bank Environmental and Social Framework (World Bank, 2016), para 3. The NGO response considered the new standards to represent a dangerous setback to key environmental and social protections, while the absence of an explicit reference to core ILO conventions was singled out as a departure from the practice of the other multilateral development banks that have a labour safeguard, including the Bank’s own IFC: ‘World Bank should uphold ILO standards in new labour safeguard’, International Trade Union Confederation (Online), 25 July, 2016, available at: http://​www.ituc-​csi.org/​world-​bank-​should-​uphold-​ilo. 110 J Wouters et al, The World Bank Legal Review, Vol. 6, Improving Delivery in Development, The role of voice, social contract, and accountability (World Bank, 2015). 111 Cabrera Ormaza M V and Ebert F C, ‘The World Bank, Human Rights, and Organizational Legitimacy Strategies: The Case of the 2016 Environmental and Social Framework’ (2019) 32 Leiden Journal of International Law 499.

Human Rights Co-ordination within the UN System  733 As to the IMF, apart from insisting that it would refrain from imposing rights conditions on its assistance, it has mostly defended itself from the accusation that the latter is harming economic, social and cultural rights, affirming instead that their pursuit forms ‘an integral part of sound economic policies’.112 Such a line of defence illustrates how, to this day, the controversy about the extent of the IFIs’ influence has to do with their contribution ‘to human rights abuses rather than their reaction to human rights violations’.113 Developing ‘an explicit human right policy’, as they were urged to do twenty years ago,114 looks to the IFIs like a decidedly unpalatable endeavour—​a stance that, in setting them apart from the UN crowd, runs counter to the sustained efforts to build the UN system’s general credibility on these matters and belies the commitments entered in the intergovernmental sphere—​non-​binding as they are. iii. Interagency policy coordination: the ACC/​CEB and the UNDG A sweeping view of coordination, more polemical than persuasive, holds that it represents nothing but ‘the pursuit of utopia masked in the language of the boardroom’.115 Though coordination is indeed a rather technocratic industry, it helps secure the required attention to horizontal issue areas and bridge institutional perspectives. However, it is a resource-​intensive process, mobilizing people, time and money. Also, it is one thing to muster interagency collaboration with respect to straightforward goals, such as universal child immunization but quite another to engineer concerted efforts towards such a broad aim as poverty eradication. In addition, there is always concern that the cause of human rights could become either pretext or hostage in bureaucratic struggles for dominance or aggrandizement, or vulnerable to jargon overload. As a fragile endeavour, coordination depends ultimately on the hardened resolve of all parties, including a consistent exercise by member states of their responsibility to give coherent guidance to the diverse bodies of the system—​something that has yet to happen after decades of unheeded calls to that effect. The formal conduit for interagency coordination, the Administrative Committee on Coordination (ACC), renamed in 2001 ‘Chief Executives Board for Coordination’ (CEB),116 was established in 1946. A  standing committee under the chairmanship of the Secretary-​General, it was meant ‘to supervise the implementation of the agreements between the UN and the specialized agencies, to ensure the coordination of the programmes approved by the governing bodies of the various organizations of the system and, more generally, to promote cooperation within the system in the pursuit of 112 P Leite, ‘Human Rights and the IMF’ (2001) 38 Finance and Development. See, on this particular topic, F Ebert, ‘International Financial Institutions’ Approaches to Labour Law: The case of the International Monetary Fund’ in A Blackett and A Trebilcock (eds), Research Handbook on Transnational Labour Law (Edward Elgar, 2015). 113 A Clapham, Human Rights Obligations of Non-​State Actors (Oxford University Press, 2006) 159. 114 D Bradlow, ‘The World Bank, the IMF, and Human Rights’ (1996) 6 Transnational Law and Contemporary Problems 47, 90. 115 R Righter, Utopia Lost: The United Nations and world order (Twentieth Century Fund Press, 1995) 374. 116 See for the list of members, which include the IFIs and the WTO, description and documents: http://​www. unsystemceb.org. See also, P Szasz, ‘The Complexification of the United Nations System’ (1999) 3 Max Planck Yearbook of United Nations Law.

734  Georges Minet the common goals of Member States’.117 The heads of all twenty-​nine of the UN agencies and programmes are represented on the CEB, which has been likened to ‘a ‘summit’ of feudal lords’, given that normally the heads of ‘most specialized agencies . . . can act as if they were princes in their own fiefdoms with little outside control over their activities and positive support from their own constituencies within national governments’.118 An encounter of various UN subcultures, the ACC/​CEB remains best described as ‘a kind of international cabinet, but with the peculiar characteristic that each minister is responsible to a different parliament’.119 There is no denying that ‘the exhortation to coordination’ in practice remains ‘tempered by the reality of the decentralized system’.120 Expectations that such a body would introduce a measure of policy coherence within the system have often resulted in disappointment, and its performance has been more often lambasted than praised. Secretary-​General Perez de Cuellar, for example, found ACC a poor ‘instrument for bringing agreement’ among the various players, noting that its chairman ‘has no means other than persuasion to bring the various agency heads to coordinate their programs within the framework of commonly agreed global policies’121 The ACC has also been described as having generally taken ‘an unhelpful attitude towards strengthening central control, reflected in its unenthusiastic view of joint planning’.122 Indeed, the prospects of this peculiar device developing a useful line of understanding on such a delicate and complex topic as that of rights-​oriented development hardly looked auspicious. This began to change when the drive for reform of the UN system gathered speed in 1997. Boutros-​Ghali had stressed that the ACC ‘must act more definitely to guide and harness the work of the various organizations of the system’123 and Annan chose to take advantage of the new reform agenda to put to better use a mechanism he described as ‘the symbol of the unity of purpose of the system’.124 The sense had been growing of the need for a ‘better ACC’, and an ‘ACC of substance’.125 Indeed, if made to function as a team, the ACC could trigger the system into dynamic processes, and mobilize programme synergies across institutions by seeking the backing of its members’ governing bodies to further common ends. Pressure built up in the wake of the cycle of global conferences to step up inter-​agency coordination seemed bound to enhance its role. Indeed, by the end of the 1990s, one could detect the emergence of ‘a new phase in 117 Compendium of Decisions on the Operation of the Administrative Committee on Coordination and its Subsidiary Machinery, Administrative Committee on Coordination, UN Doc ACC/​1996/​INF/​1 (28 August 1996), 8–​9; see also Summary of Conclusions, Administrative Committee on Coordination, 1st Session, UN Doc ACC/​ 1993/​14 (14 July 1993). 118 P Baehr and L Gordenker, The United Nations at the End of the 1990s (Palgrave Macmillan, 1999) 37, 162. 119 H Nicholas, The United Nations as a Political Institution (Oxford University Press, 1967) 134. 120 R McLaren, ‘UN Reform Through Coordination by the ACC: The continuing saga of the king and the barons’ (2001) 67 International Review of Administrative Sciences 2, 319. 121 P de Cuellar, ‘Reflecting on the Past and Contemplating the Future’ (1995) 1 Global Governance 152. 122 P Taylor, International Organization in the Age of Globalization (Continuum, 2003) 138. 123 B Boutros-​Ghali, ‘Empowering the United Nations’ (1992) 72 Foreign Affairs 100. 124 Statement by the Secretary-​General to the Economic and Social Council on 6 February 1998, Economic and Social Council, Substantive Session of 1998, UN Doc E/​1998/​21 (4 May 1998), annex I. 125 K Idris and M Bartolo, A Better United Nations for the New Millennium (Martinus Nijhoff Publishers, 2000) 131.

Human Rights Co-ordination within the UN System  735 interagency cooperation, spurred by the imperatives of globalisation’.126 The ongoing drive—​symbolized in its change of name to reflect a policy rather than administrative focus—​to make this body into a proper tool for policy coherence could ensure that human rights becomes an actual concern on the inter-​agency menu. The ACC was confronted with a renewed agenda following the Vienna Conference, with human rights identified as requiring increased coordination. Agreement had been reached then on a statement of common understanding regarding the place of human rights within the system. Each concerned agency was to have ‘its own specific contributions to make to the promotion of human rights in its particular field of competence’. The VDPA, in particular, set out three objectives for interagency follow-​ up: cooperation in order to strengthen, rationalize and streamline rights-​related activities and to avoid duplication; assessment of the impact of policies, programmes and strategies on respect for all human rights; and coordination and cooperation in a number of substantive and operational areas. In turn, these objectives raised three challenges for the system. The first was how to systematically integrate human rights law in development activities and to sensitize policy-​making bodies to their mutually reinforcing nature. Intra-​regime coordination constituted a second field of action—​ enhancing complementarity, ensuring consistency in legal interpretation, and support for monitoring mechanisms. Lastly, the question was open of how to establish a framework for system-​wide cooperation. The mid-​nineties saw the initiation of inter-​agency consultations by the Under-​Secretary-​General for Human Rights and the discussion of a Plan of Activities for the implementation of the Declaration that had been prepared by the Centre for Human Rights. ACC members expressed their individual and collective commitment to implement the Vienna consensus. The chairpersons of the treaty bodies, welcoming the addition, for the first time, of human rights to the ACC agenda, expressed ‘the hope that a human rights focus in ACC will continue in the future’,127 while the newly appointed High Commissioner signalled his willingness to follow-​up on the ‘most encouraging’ results of the ACC discussion. However, the lack of specific assignments was regrettable, as the burden of actual follow-​up was left to a High Commissioner poorly endowed in resources. The ACC framework seemed to show its limitations in stopping short of crafting a detailed authoritative mandate for mainstreaming human rights. More clout was evidently needed to bring legitimacy to such an exercise, which the widening of the Vienna follow-​up to an integrated implementation mechanism for all major conferences was going to provide—​together with a stronger dose of leadership from a new Secretary-​General and a new High Commissioner. The ACC was assigned a central role in this process of overall follow-​up, which enabled it to spark the mandated incorporation of rights in the development agenda. It emphasized in 1995 the need to ensure an integrated follow-​up 126 Annual overview report of the Administrative Committee on Coordination for 1999, Economic and Social Council, Substantive Session of 2000, UN Doc E/​2000/​53 (17 May 2000), para 4. 127 Effective implementation of international instruments on human rights, including reporting obligations under international instruments on human rights, General Assembly, 49th Session, UN Doc A/​49/​537 (19 October 1994), para 23.

736  Georges Minet to the global conferences, and ECOSOC accordingly highlighted the role of various rights issues during its examination of their outcomes.128 Also in 1995, ACC focused on the task of articulating the system’s support to country-​level follow-​up to the conferences. In the process, even as it agreed on the need to take into account the gender dimension to their work,129 it overlooked the issue of the implementation of the VDPA and of human rights as a policy theme cutting across the various conferences. As duly noted by interested parties puzzled by this ‘conspicuous absence’,130 integration of the rights dimension had got off to a bad start. At fault were political prudence and/​or a persistent lack of awareness by officialdom of the relevance of the Vienna instruments to the social development consensus voiced by the conferences. This neglect also suggested a degree of aloofness on the part of the UN rights programme, stemming from an inability to pull its weight in coordination fora and engage in the necessary bureaucratic struggles—​a function of the relatively weak position of the High Commissioner in the UN system. The situation improved in 1996, thanks in particular to the support of the UN secretariat for the stance taken by rights-​oriented agencies, such as the ILO and UNESCO, which argued that the Vienna consensus deserved to guide the follow-​up process.131 The ACC stressed then that ‘policy objectives such as the advancement of women and the promotion of human rights, which had been the focus of two global conferences . . . should be pursued’ within that process.132 The fact that the initiative emanated from concerned components of the system demonstrates that the rights agenda can be promoted by each institution acting in alliance with the High Commissioner—​a view adopted by the successive incumbents. Each of the follow-​up themes lent itself to a mainstreaming exercise, as they overlapped with wide areas of international obligations and were the subject of rights commitments in the programmes adopted at Copenhagen, Cairo or Beijing. To fulfil their brief, the task forces in charge of assisting countries with concrete advice would have been expected to address rights issues in some detail. However, they were content to keep to generalities on capacity-​building for governance and the necessary participation of civil society, a shortcoming only noticed by a few worried outsiders. The ACC somehow overstated in 1997 the extent to which genuine attention had been paid to rights in the exercise, claiming that, ‘as cross-​cutting issues, human rights concerns had

128 Coordinated follow-​up to major international conferences in the economic, social and related fields, Economic and Social Council, Substantive Session of 1995, UN Doc E/​1995/​86 (9 June 1995), para 25. 129 Summary of Conclusions, Administrative Committee on Coordination, 2nd Session, UN Doc ACC/​1995/​23 (1 December 1995), para 21. 130 Members of a key delegation, Austria, made critical comments: E Sucharipa and E Theuermann ‘The New United Nations and Human Rights: The human rights perspective in the integrated follow-​up to United Nations Conferences and in the UN reform process’ (1997) 2 Austrian Review of International and European Law 245, 253. 131 Summary of Conclusions of the Organisational Committee, Administrative Committee on Coordination, 1st Session, UN Doc ACC/​1996/​2 (10 September 1996), para 9. 132 Summary of Conclusions, Administrative Committee on Coordination, 1st Session, UN Doc ACC/​1996/​4 (10 September 1995), para 35; GA Res 51/​1 (22 October 1996), para 177. The ACC recalled at its second session its request to the three task forces ‘to integrate human rights in their work programme’: Summary of Conclusions, Administrative Committee on Coordination, 2nd Session, UN Doc ACC/​1996/​20 (3 December 1996), para 24.

Human Rights Co-ordination within the UN System  737 been integrated in the work of all three task forces’.133 Elsewhere in its report, however, it spoke more accurately about an ‘overall effort to include human rights as a key and integral component of the coordinated follow-​up to global conferences’.134 Pursuing a rights-​based approach to poverty eradication was, however, clearly advocated by ACC in 1998.135 Where truly positive developments would eventually begin to take place was in the UN Development Group (UNDG), created under the 1997 reform and later subsumed into the CEB. Chaired by the UNDP Administrator, it included the High Commissioner ex officio and offered a conduit for sharing good practices across the system: after a ‘Common Understanding on a Human Rights-​based Approach (HRBA) to Development Cooperation’ had been agreed in 2003, the UNDG adopted an interagency Plan of Action to build the capacity of UN country teams to support national rights systems. A  UN ‘Common Learning Package’ on HRBA was designed to enhance staff capacity to apply the concept of HRBA in country programming. Having become in 2008 the ‘third pillar’ of the CEB,136 UNDG, as the structure responsible for coherence in country-​level operations, set up in 2009 a so-​called ‘human rights mainstreaming mechanism’ (HRM), transformed in 2015 into a ‘Human Rights Working Group’ so as to signal both the relevance of rights to the post-​2015 agenda and the new readiness of the system to act on that recognition: the HRWG’s ‘overall objective is to institutionalize human rights as a central part of the UN’s development work  . . .  through strengthening system-​wide coherence and collaboration on human rights mainstreaming’.137 It is meant to provide ‘the primary policy forum to ensure policy coherence in human rights mainstreaming and strengthening normative and operational linkages in the UN’s development operations’. The instruments and monitoring devices of the specialized agencies are explicitly included in the body of standards concerned.138 It is noteworthy that the World Bank, a crucial member of UNDG, appears to be absent from this particular subset, which brings together the ‘Big Four’ and most UN funds and programmes. In 2011, at last, in the wake of the so-​called ‘Arab Spring’, the issue of human rights in development cooperation came as an item for discussion by the CEB, with the High Commissioner for Human Rights proposing the Board adopt a series of actions to build on the progress made so far on mainstreaming and respond to the intergovernmental support to further such work. While reaffirming their commitment to the HRBA, the CEB members refrained from taking too specific steps, only affirming that all UN 133 Annual overview report of Administrative Committee on Coordination for 1997, Economic and Social Council, Substantive Session of 1998, UN Doc E/​1998/​21 (4 May 1998), para 18. 134 Ibid, para 40. 135 Statement of commitment of the Administrative Committee on Coordination for action to eradicate poverty (E/​ 1998/​73). 136 The other pillars are the High-​Level Committee on Programmes (HLCP) and the High-​Level Committee on Management (HLCM). 137 For cases of successful collaboration, see Mainstreaming Human Rights in Development, ‘Stories from the Field’ (UNDG, 2013), available at:  http://​hrbaportal.org/​resources/​mainstreaming-​human-​rights-​in-​development​stories-​from-​the-​field. 138 See Terms of Reference, 5 December 2014, available at: www.undg.org.

738  Georges Minet agencies needed to adhere to a common human rights framework for the sake of consistency vis-​à-​vis their membership.139 Tasked then with advancing the cause of ‘policy coherence on human rights’, the High-​Level Committee on Programmes (HLCP) was to give in 2012 the definitive signal of a major breakthrough with the decision to include human rights as a regular item on its agenda, as and when required, as the expression of a commitment to ‘a more systematic integration of human rights issues in the system’s joint messaging and advocacy’.140 Advocating a fairer globalization, HLCP also stated in 2012 that it was ‘crucial to boost international efforts to develop rights-​based approaches to policy formulation, including the respect for core labour standards’.141 It has also been careful to observe that ‘sustainable development goals and targets were not a replacement for the human rights conventions or vice versa, but rather that they complemented one another’.142 In 2013, the High Commissioner, in her address to the Committee on the occasion of its first consideration of the item, stated that, ‘true to its Charter, the United Nations was today a human rights organization’.143 That same year, the CEB reaffirmed its commitment to the human rights principles of the UN and endorsed the Secretary-​ General’s statement of 22 November 2013, entitled ‘Renewing our commitment to the peoples and purposes of the United Nations’.144 Since then, it has adopted a ‘framework to combat inequalities and discrimination’, developed under the joint leadership of OHCHR and UN-​Women, that reaffirms the system’s commitment to the advancement of rights. Also, ‘People-​centered, Rights-​based and Leave No One Behind’ figure as one of the eleven principles it endorsed in 2016 to guide the system in implementing Agenda 2030.145 To sum up, the CEB, through its respective structures of the UNDG and the HLCP, is at last in the position to consider in earnest a set of issues the system had long been collectively reluctant to tackle, otherwise than rhetorically.146 Moved by the rise of economic inequalities across the planet, it actually has lost no time in doing so. Making good on the sense that ‘equality [was] a potential driver for greater mainstreaming 139 Summary of Conclusions, Chief Executives Board for Coordination, Second regular session of 2011, UN Doc CEB/​2011/​2 (2 February 2012), para 45–​52. 140 Summary of Conclusions, Chief Executives Board for Coordination, First regular session of 2012 CEB/​2012/​ 1 (4 June 2012), para 11. 141 ‘Fairer, Greener, more Sustainable Globalization’, A  Synthesis Report by the High-​Level Committee on Programmes, CEB High-​Level Committee on Programmes, UN Doc CEB/​2012/​4(2 April 2012), para 41. 142 Report of the High-​Level Committee on Programmes at its twenty-​ninth session, Chief Executives Board for Coordination, UN Doc CEB/​2015/​4 (28 May 2015), para 25. 143 Report of the High-​Level Committee on Programmes on its twenty-​sixth session, Chief Executives Board for Coordination, UN Doc CEB/​2013/​6 (11 November 2013), para 3. 144 Annual overview report of the United Nations System Chief Executives Board for Coordination for 2013, Economic and Social Council, UN Doc E/​2014/​69 (5 May 2014), para 25. A high-​level panel discussion is held yearly in the Human Rights Council with a view to promoting human-​rights mainstreaming throughout the UN system: HRC Res 16/​21 (12 April 2011), annex, para 42. 145 Both documents available at unsceb.org. 146 A significant domain with respect to the integration of human rights in UN system processes is that of evaluation, with the UN Evaluation Group (UNEG) Working Group on Gender Equality and Human Rights producing a relevant field guide (UNEG (2014) Integrating Human Rights and Gender Equality in Evaluation) and a repertory of good practices for integrating gender equality and human rights in evaluation (2017) (www.uneval.org).

Human Rights Co-ordination within the UN System  739 of human rights’,147 the Committee endorsed in 2016, ‘as an integral part of a human rights based approach’148 to the implementation of the 2030 Agenda, a common framework, prepared under OHCHR leadership, to guide the approach of the system on equality and human rights.149 The resurgence of a concern for social justice, born from the surge of inequality is thus acting as a clincher to mobilize legal instruments in the support of social development issues, with the result that rights-​conscious UN entities join forces and unite in anchoring their activities in a rights framework, as for instance in the policy domain of social protection, the subject of Sustainable Development Goal 1.3.150 The ‘leave no one behind’ imperative concurs to sum up the current approach of mixing rights and the guarantee of basic economic opportunities. More generally, normative mandates and issues appear to have very much climbed to the top of the agenda of the inter-​agency policy mechanisms, aware of the need to elaborate on the relevance of human rights, the rule of law and human security to the sustainable development agenda. While the normative dimension of development used to elicit but little attention in the recent past, the so-​called ‘post-​2015’ context has brought a new sense of the importance of the body of international standards to further sustainable development, that is, of those very norms that are also ‘essential in providing legitimacy to and enhancing the effectiveness of United Nations actions . . . Issues of human rights, equity, equality, including gender equality, social inclusion and freedom from want and fear [have] moved to the centre of the debate on the fundamental principles underpinning the development agenda of the future’.151 Besides, the matter of the rule of law was similarly singled out for mainstreaming in the activities of the system, as it offered ‘synergistic effects on the full range of United Nations system activities, including development, human rights and peace and security’.152 By 2011, when the topic came for discussion in the CEB, the evidence was that the ‘United Nations development system was getting better at mainstreaming normative principles, particularly those of human rights, through the UNDAFs’.153 The demand from countries for support in this area appears to be significant, and the UNDG’s Human Rights Working Group plays a role in that regard, as it favours an increasingly deliberate integration of human rights at the country and regional levels, as well as provides the support of the Action Plan for 147 Summary of Conclusions, Chief Executives Board for Coordination, First regular session of 2015, UN Doc CEB/​2015/​1 (24 July 2015), para 32. 148 Summary of Conclusions, Chief Executives Board for Coordination, Second regular session of 2015, UN Doc CEB/​2015/​2 (18 January 2016), para 26. 149 Equality and non-​discrimination at the heart of sustainable development: A shared United Nations Framework for Action, Chief Executives Board for Coordination, UN Doc CEB/​2016/​6/​Add.1 (9 November 2016). 150 Ten partner institutions participate in the Social Protection and Human Rights Platform:  ILO, FAO, OHCHR, UN WOMEN, UNICEF, UNAIDS, UNRISD, ECLAC ESCAP and ESCWA (http://​socialprotection-​ humanrights.org). In spite of its joint plan of action on universal social protection with the ILO, the Bank is absent from this initiative. 151 Report of the High-​Level Committee on Programmes on its twenty-​sixth session, OHCHR, CEB/​2013/​6 (11 November 2013), para 109. 152 Summary of Conclusions, Chief Executives Board for Coordination, First regular session of 2013, UN Doc CEB/​2013/​1 (17 June 2013), para 34. 153 Summary of Conclusions, Chief Executives Board for Coordination, Second regular session of 2011, UN Doc CEB/​2011/​2 (2 February 2012), para 38.

740  Georges Minet the Secretary-​General’s ‘Human Rights up Front’ initiative—​which has been branded a positive example of the system moving from principle to practice.154

20.3  Conclusion: human rights and UN system cohesion In 2000, a fair assessment of the standing of human rights within the UN sphere was that: [M]‌any governments fear conditionalities and prefer weak and isolated human rights sectors at international headquarters far away from home. Partly, the reasons are to be sought in ineffective coordination mechanisms of the intergovernmental organizations themselves and in their constant internal struggle for jurisdiction and limited funds.155

Despite the many successful efforts to bring rights centre stage within UN system policy making, success remained limited and halted. A decade and a half later, the picture was very different, as shown both by the expansion of government requests for UN assistance and the latter’s capacity to benefit from a vastly improved device for system coherence: it is no exaggeration to say that ‘in recent years great strides had been made in integrating human rights into the work of the United Nations system’.156 Sharpening the implications of the notion of mainstreaming with regard to human rights—​as well as in a few related fields such as gender, rule of law, and social development—​probably was the prerequisite to proceeding more coherently to try and enforce in practice the principles of the Charter. In true UN fashion, results have become apparent not in the form of a leap forward, but rather of the quiet culmination of a protracted journey. Already in 1994, the Secretary-​General had stated that ‘priority consideration to human rights . . . contributes to the integration of UN system-​wide activities’.157 This conception is noteworthy because it not only recognizes human rights as one aspect of the work of the UN which directly affects all the others, but also explicitly highlights them as a positive factor in the dynamics of policy coherence. The breakthrough of the 1997 reform brought the necessary commitment by the UN leadership to support the integration of rights in UN work. Most remarkable in the developments reviewed above is the somewhat abrupt transition from a situation where no rights perspective

154 Launched by the Secretary General in 2014, it aims to bring the UN system together in case of a threat of serious violations of human rights, including economic, social and cultural rights as the latter ‘can be a clear indicator of a wider pattern of serious violations’. 155 G Alfredsson, ‘Introduction—​Broadening the Scope of Applicable Standards’ in G Alfredsson and R Ring (eds), The Inspection Panel of the World Bank: A different complaints procedure (Nijhoff, 2001) 63. 156 Report of the High-​Level Committee on Programmes at its twenty-​ninth session, Chief Executives Board for Coordination, UN Doc CEB/​2015/​4 (28 May 2015), para 25. 157 Follow-​up to the World Conference on Human Rights: Report of the Secretary-​General, General Assembly, 49th Session, UN Doc A/​49/​668 (15 November 1994), para 12.

Human Rights Co-ordination within the UN System  741 was identifiable in the workings of the UN institutions beyond the specifically rights-​ oriented agencies, to one where virtually every outfit in the system had proclaimed its concern for human rights and, more often than not, is determined to give a rights content to its activities. Such a rapid and radical shift could well have evoked a suspicion that the generalization of the rights-​based approach, after the traditional marginalization of the rights agenda, was opportunistic—​‘little more than fluff, self-​congratulation, and more or less hidden transcripts of power’158—​rather than deeply felt—​a result of the pressure generated upon international organizations to climb on the human rights bandwagon by the combination of prevailing intergovernmental consensus, donor orientations and public relations concerns. However, the collective endorsement registered at long last in the apex interagency body, the CEB, finally showed proof that human rights had gained their overdue pride of place in the system’s mindset. Such a promising set of developments justified the assessment by the High Commissioner in 2013 that ‘human rights were being restored to the place envisioned for them in the Charter of the United Nations, that is, at the centre of all that the United Nations system did’.159 But the same could still not be said of the ‘wider UN system’, as the stubbornly differing attitude of the BWIs plainly endorsed the judgment that ‘a full-​scale integration of human rights into international development policy is an idea whose time has not yet come and is still not desired in some quarters’.160 In the meantime, policy integration and coherence, deemed essential for making progress on the 2030 Agenda, will largely occur without much reference to a sense of legal obligation, as evidenced by the joint statement of the World Bank and the ILO on the launch of a joint plan of action on universal social protection:161 the two organizations may well ‘share a vision of social protection for all and a world where anyone in need can access social protection at any time,’ but they have not found it necessary to couch their common commitment in terms that would reflect a recognition of the grounding of such an ambition—​a lost opportunity to jointly show that social protection indeed happens to figure as a basic human right. As a matter of fact, to the Bank’s silence on this score responds the ILO’s view that universal social protection should be supported in particular as ‘a human right that everyone, as a member of society, should enjoy’.162 In the end, and in a manner characteristic of interagency proceedings where compromise rules, the UNDG chose to minimize the significance of such a basic ambivalence for the practical outcome of a cooperation between ‘strange bedfellows’.163 158 P Uvin, ‘On High Moral Ground: The incorporation of human rights by the development enterprise’ (2002) Praxis Vol. XVII. 159 Summary of Conclusions, Chief Executives Board for Coordination, Second regular session of 2013, UN Doc CEB/​2013/​2 (13 January 2014), para 16. 160 M Langford ‘A Poverty of Rights: Six Ways to Fix the MDGs’ (2010) 41 IDS Bulletin 90. 161 J Kim and G Ryder, ‘A joint mission and plan of action:  Universal social protection to ensure that no one is left behind’, 30 June 2015, available at:  http://​www.worldbank.org/​en/​news/​press-​release/​2015/​06/​30/​ joint-​statement-​world-​bank-​group-​president-​ilo-​director-​general-​guy-​ryder. 162 The ILO also makes reference to a legal, if non-​binding, instrument, the Recommendation 202, Social Protection Floors Recommendation, 2012, No 202, adopted by 185 states in 2012. 163 See S Devereux, ‘The Old Social Protection Curiosity Shop’, The Institute of Development Studies (Online), 23 July 2015, available at: http://​www.ids.ac.uk/​opinion/​the-​old-​social-​protection-​curiosity-​shop; and P Alston, Report of the Special Rapporteur on extreme poverty and human rights, General Assembly, 69th Session, UN Doc A/​ 69/​297 (11 August 2014), paras 25–​32.

742  Georges Minet The limits of the system’s consensus on the centrality of rights are well illustrated also by the way in which one of their subsets, labour rights, is integrated throughout. Repeatedly advocated in numerous global documents over the last ‘globalized’ quarter of a century, the aim of policy coherence in their field is still mostly paid lip service to, as the sense of their observance being an obligation under international law is not being acted upon by all in the system. While UNDG and UNDP have committed to an active policy of protecting and promoting the right to decent work—​with UNDP framing its project work in terms of ILO instruments,164—​the Bank, while advocating ‘cooperative relationships’ and ‘dialogue’ with , inter alia, other ‘international organizations’, has kept refraining from any reference to international human rights law, both in general and in the specific context of its project activities, aside from a broad expression of support for the realization of the Universal Declaration.165 But it has not shied from relying on ILO monitoring in order to justify its own activities, to the dismay of some.166 As to the IMF, the fate of labour rights in the continued saga of adjustment, extended from Africa, Asia, and Latin America to Europe East and West, has demonstrated the resilience, in the face of unrelenting technical and political criticism, of the deregulatory reform agenda—​also a favourite of the Bank as shown by its continuing support of the Doing Business exercise—​often detrimental to the proper exercise of those rights as determined by international norms. So far, this situation has only succeeded in prompting renewed demands for improved coordination, such as recommending that countries and IFIs ‘considering labour law reforms should systematically, and in a timely manner, consult with international organizations that have expertise in this area, notably ILO’.167 Though not averse to acknowledging the importance of core labour standards, the IFIs have remained remarkably impervious to any such calls that would entail some sort of legal entanglement—​thus belying their formal endorsement of the value of cooperation, as it appears to be practised on their own terms only. Labour-​related issues thus form typically one of those challenges to coherent policy-​making, and a test case where ‘cooperation between the Bretton Woods institutions and the rest of the United Nations system needs to be further deepened’.168 More generally, it remains obvious, beyond the matter of institutional settings, that conflicts between visions of society keep dominating the landscape: as exemplified in the case of SDG 8, the positive inclusion of decent work and its rights component into that goal has not put an end to 164 UNDP, Social and Environmental Standards (UNDP, 2014), Standard 3, para 9. 165 Absent from the new labour safeguard approved in 2016 (ESS2), reference was made in the 2018 corresponding Guidance Note for Borrowers to the ILO core labour standards and unspecified ‘UN Conventions’—​a positive if limited step in the quest for improved normative coherence within the UN system (www.worldbank. org/​en/​projects-​operations/​environmental-​and-​social-​framework). 166 Human Rights Watch, ‘Uzbekistan:  Forced Labor Linked to World Bank, Systematic Violations Underpin Country’s Cotton Sector’, 27 June 2017, available at:  https://​www.hrw.org/​news/​2017/​06/​27/​ uzbekistan-​forced-​labor-​linked-​world-​bank. 167 Report of the Independent expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights, Human Rights Council, 34th Session, UN Doc A/​HRC/​34/​57 (27 December 2016), para 67. 168 Mainstreaming of the three dimensions of sustainable development throughout the United Nations system, Report of the Secretary-​General, General Assembly, 68th Session, Un Doc A/​68/​79-​E/​2013/​69 (9 May 2013), para 76.

Human Rights Co-ordination within the UN System  743 the sharp divergence at play between market-​centred and rights-​centred views on the direction of employment and labour policies.169 Over recent years, political—​as opposed to mostly academic—​awareness has grown that the functionalist structure could well be responsible for much of the failure to tackle world economic and social challenges effectively. ‘Trans-​agency’ approaches have been advocated and ‘silos’ identified as true enemies worth fighting, with the general adequacy of global governance structures becoming routinely questioned.170 That sort of acknowledgment has helped elevate human rights to an authentic transversal statute. In turn, the rights agenda has revealed, like no other, the deep ambiguities at play in the UN system. In sum, improved coherence has so far been mostly sought after at the country level, with positive evidence that the ‘Delivering as one approach enabled the United Nations development system to address complex cross-​cutting issues, including . . . human rights, more effectively’.171 For such outcomes to be translated into genuine convergence at the global level, the riddle of the hemiplegic UN architecture nevertheless will have to be solved: even though recent history proves that the quest for substantive integration does benefit from the rights agenda, the fact that the latter has yet to reach the stage of a thorough system-​wide acceptance is just another illustration of the high politics at stake in the search for coherence as an expression of the reform of the post-​WW2 multilateral institutions.

169 D F Frey, ‘Economic Growth, Full Employment and Decent Work:  The Means and Ends in SDG 8’, International Journal of Human Rights 21(8) (2017). 170 See P Love and J Stockdale-​Otárola, Debate the Issues: Complexity and policy making (OECD Publishing, 2017). The 2015 Addis Ababa Agenda aims for an expansion of the finance ‘coherence agenda’ to include economic, social, environmental challenges, and dwells on the importance of addressing cross-​cutting and systemic issues. See www.developmentfinance.un.org. 171 Implementation of General Assembly resolution 67/​226 on the quadrennial comprehensive policy review of operational activities for development of the United Nations system: Report of the Secretary-​General, General Assembly, 71st Session, UN Doc A/​71/​63–​E/​2016/​8 (31 December 2015), para 210.

Index Note: For the benefit of digital users, indexed terms that span two pages (e.g., 52–53) may, on occasion, appear on only one of those pages. Afghanistan  116, 119, 256, 452, 673, 690–​91,  702–​3 African Union  4, 355–​56, 634–​35 African Charter on Human and Peoples’ Rights  159–​60 African Charter on the Rights and Welfare of the Child  544 African Court on Human and People’s Rights  467–​68 Amnesty  50, 75–​77, 76n164, 689–​90, 690n90 Angola  46, 67, 69, 71–​72, 75, 88, 669–​70 Lusaka Accords  75 Apartheid  10, 15, 44, 49, 49n15, 50, 51, 135, 154–​55, 229, 309–​10, 324, 332–​33 International Convention on the Suppression and Punishment of the Crime of Apartheid  110, 598 Special Rapporteur on the politics of apartheid 229 Arab League  198, 209, 226 Arab Spring  9–​10, 204, 209–​10, 214, 226, 228, 694–​95,  737–​38 Argentina  52, 230, 341n13, 463, 470, 472, 474, 535, 586, 594, 597, 606, 616 Armenia 597 Arms Trade Treaty  105 Arrest Warrant  71, 74, 166 Association of Southeast Asian Nations (ASEAN) 42 Commission on the Protection and Promotion of the Rights of Women and Children 544 Bedouin  295–​96 Beijing Conference (1995)  274–​76 Beijing Declaration and Platform for Action  274–​76, 277–​78, 279, 405 Belgium  162–​67, 369, 458–​59, 498 Bosnia  22–​23, 55–​57, 58, 70, 71–​72, 86, 116, 159, 272–​73, 606, 613, 670, 674 Brazil  3, 34, 42–​43, 52–​53, 83–​84, 227–​28, 430–​31, 494–​96,  597 Bolsonaro, Jair  3

Bretton Woods  140, 143–​44, 145, 149, 726n74 BRICS  203–​4 Burkina Faso  214, 636–​37 Burundi  127, 437, 485–​86, 681, 695–​96, 699–​700 Cambodia  67, 68, 71–​72, 75, 116, 119, 127, 597, 669–​70, 681,  705–​6 Cameroon  472, 474 Cassese, Antonio  61–​62, 107n28, 128, 165–​66 Cassin, René  668 Caste   147, 314, 318, 328–​29 Center for Social Development and Humanitarian Affairs  257 Charter bodies  14–​17 Chechnya  94–​95, 579, 684–​85,  690–​91 Chemical weapons  66 Ciudad Juárez  433–​34 Civil society  5, 8, 17, 18, 19–​20, 21, 41, 44–​47, 101–​2, 146, 147, 148, 209, 213–​14, 282, 323, 336, 353–​54, 416, 419, 439, 442, 448–​49, 458, 461–​63, 475, 521, 527–​28, 539–​40, 570–​71, 589–​90, 598–​99, 641, 718, 719, 736–​37 Civil war  54, 66–​67, 670 Cold War  8, 9–​10, 15, 16–​17, 30, 42, 43, 44, 45, 67, 82–​83, 99, 119–​20, 138, 139, 203–​4, 207–​8, 256, 258–​59, 267, 281, 340–​41, 342, 349–​50, 351, 358–​59, 395, 711–​12 Collective rights  10, 26, 215, 337, 468 Colombia  127, 300, 535, 544–​45, 586, 597, 605–​6, 613, 630–​31n172, 632, 681, 684–​86 Constitutional Court  455 Commission on Human Rights (CHR)  8, 14–​15, 16, 21, 109–​10, 123, 132–​33, 134, 139, 181, 182–​90, 234–​35, 239–​40, 444, 457, 464, 685–​86, 687–​88, 700 Committee against Torture individual complaints  498–​509 inter-​state complaints  497–​98 investigation  492–​94 jurisprudence Elmi v Australia  506–​7 GRB v Sweden  506–​7

746 Index Committee against Torture (cont.) reporting  482–​92 Subcommittee for the Prevention of Torture  513–​17 Committee on Economic, Social and Cultural Rights communications  456–​59 general comments  453–​56 inquiry 459 inter-​state communications  459 state reports  445–​52 statements  459–​60 Committee on Enforced Disappearances complaints  593–​94 inquiries  594–​95 State party reports  591–​93 sunset clause  587–​90 Committee on the Elimination of Discrimination Against Women individual complaints  426–​28 inquiry  432–​36 jurisprudence Alyne da Silva Pimentel v Brazil  430–​31 AS v Hungary  430–​31 Cristina Muñoz-​Vargas y Sainz Vicuña v Spain 428 LC v Peru 431 Vertido v Philippines  431, 432 Committee on the Elimination of Racial Discrimination (CERD) General Recommendations  317–​18 individual complains  318–​20 inter-​state disputes  320–​21 jurisprudence Jewish Community of Oslo et al. v Norway  318–​19 PSN v Denmark  327–​28 Qatar v Kingdom of Saudi Arabia  320–​21 Qatar v United Arab Emirates (UAE)  320–​21 State of Palestine v Israel  320–​21 TBB-​Turkish Union v Germany  319,  333–​34 State party reports  312–​15 Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) general comments  620–​24 individual complaints  617–​20 Karakurt v Austria  619–​20 inter-​state complaints  614–​17 State reports  611–​14 Committee on the Rights of Persons with Disabilities communications  561–​63

inquiries  563–​64 jurisprudence  573–​78 State party report  559–​61 Committee on the Rights of the Child general comments  536–​37 State party reports  523–​31 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT)  110, 477, 705–​6 Optional Protocol (OPCAT)  513–​17 reservations  509–​10 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others  110–​11 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)  1–​2, 8, 110–​11, 114–​15, 256, 268, 273, 274, 278, 279, 282n141, 287, 288, 360, 376, 393 Optional Protocol  284 Convention on the Political Rights of Women  110–​11,  283 Convention on the Rights of Persons with Disabilities (UNCRPD)  110, 302–​3, 547 Conferences of States Parties (COSP)  565–​66 Optional Protocol  561–​64 Convention on the Rights of the Child (CRC)  110, 310, 421, 519, 528, 534, 545, 550–​51, 602n9, 721, 726 Optional Protocol on the Involvement of Children in Armed Conflict (OPAC)  538–​39 Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSC)  538–​39 Côte d’Ivoire  62–​63, 352n70, 483n32 Council of Europe  4, 28, 355–​56, 540–​41, 544,  634–​35 European Court of Human Rights (ECHR)  353–​54, 359, 375, 376–​77, 387–​89, 475, 553–​54, 558–​59, 579–​80n1, 593, 681 Croatia  58, 68, 116, 159, 670 Cuba  147, 147n69, 148, 192, 194–​97, 204, 208, 227–​28, 233–​34, 325n135, 597, 705–​6 Customary international law  84, 112–​15, 128, 162–​63, 165–​66, 168–​70, 297, 373 opinio juris  113–​14, 165, 169, 535–​36 State practice  113, 189, 344, 472–​73, 574, 576–​77 Darfur  61–​62, 65, 66, 78–​80, 94–​95, 208, 213, 226, 227, 675, 692 International Commission of Inquiry on Darfur (2006)  66

Index  747 Declaration on the Elimination of Violence against Women  112–​13n60, 114–​15, 272–​73,  433 Decolonization  53–​54, 67, 106, 135, 137, 154–​55, 184–​85, 215, 263, 281, 310 Developing countries  106–​7, 263–​64, 288, 461–​62, 483, 693, 724 Division on the Advancement of Women (DAW)  257, 280 East Timor  53–​54, 67, 68, 71, 155, 673–​74, 684–​85, 687n78 Economic, Social and Cultural Rights (ESCR)  211–​12, 234–​35, 234–​35n289, 329, 341, 440, 445–​46, 452–​53, 474, 519, 537, 540, 645, 693, 718, 723–​24, 731–​32,  733 El Salvador  64–​65, 67–​68, 69–​71, 73, 126–​27, 613, 615, 618–​19, 669–​70 Truth Commission for El Salvador  73 Election Monitoring  66–​69 Embargo  49–​50, 52–​53, 55, 58–​59, 81, 87–​88, 96, 112 Enforced disappearances (ED)  116–​17, 379–​81, 384, 385, 579–​82 International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED)  110, 114–​15, 379–​80,  549 Ethnic cleansing  57–​58, 59, 60, 120, 121, 321 European Union  91, 104, 136–​37, 194, 275–​76 European Court of Justice  91–​92 Executive Office on Women’s Affairs  254–​56 Field Operations and Technical Cooperation Division 681 Food and Agriculture Organization (FAO)  301,  728–​29 Right to Food Guidelines  728–​29 Freedom House  148, 148n72 Freedom of expression  26, 35–​36, 66–​67, 333, 334–​35, 388–​90, 558, 621–​22, 693 Freedom of religion  26, 621–​22 Gaddafi, Muammar  62, 684 Gaza 694 Gender equality  149, 277, 278–​81, 287, 398, 470,  739–​40 Inter-​Agency Committee on Women and Gender Equality  275–​76, 278 General Assembly Credentials Committee  119 field operations  126–​27 First Committee  105

plenary  104, 125 Second Committee  106 Sixth Committee  105 Third Committee  104–​5, 123–​24, 125 Germany  42–​43, 131–​32n7, 155–​56, 167, 194, 209, 314, 421, 466–​67, 474, 586, 590–​91, 609–​10, 614–​15, 615n76, 618, 641–​42n244 Ghana  42, 116–​17, 407n73, 409–​10, 488, 687n78 Global South  3, 16–​17, 34, 193, 194, 203–​4, 205–​6, 211, 227–​28, 230–​31, 236, 604, 643 Guatemala  126–​27, 295–​96, 615, 618–​19, 669–​70,  681 Gulf Wars  43–​44, 56, 82, 87, 670 Haiti  47, 52–​53, 54, 69–​70, 71–​72, 75–​76, 75–​76n162, 85–​86, 87, 94–​95, 119, 126–​27, 669–​70,  690n90 Haitian National Truth and Justice Commission 75 Hate speech  333–​35 High Commissioner for Human Rights (UNHCHR) Arbour, Louise  190, 224, 646–​47, 649–​51, 662, 663–​64, 675–​76, 691–​93, 706 Ayala-​Lasso, José  122, 672–​73, 684–​85, 699–​700,  705–​6 Pillay, Navanethem (Navi)  646–​47, 653, 655–​56, 657–​58, 659–​60, 663–​64, 675–​76, 678, 693–​ 95, 698, 706 Ramcharan, Bertrand  220, 675 Robinson, Mary  141, 673–​74, 687–​91, 706 Vieira de Mello, Sérgio  673–​75 Zeid Ra’ad Al Hussein  677, 695–​96, 704–​5,  706 HIV/​AIDS  63, 112, 279, 329–​30, 413, 560–​61,  563 UNAIDS  560–​61 Honduras  597, 606, 681 Human Rights Committee general comments  369–​71 individual complaints  354–​67 admissibility  347–​71 inter-​state communication  367–​69 reporting  347–​54 jurisprudence Alzery v Sweden 382 C v Australia 382 Judge v Canada  381–​82 Kaba v Canada 382 Kindler v Canada  381–​82 Larrañöaga v Philippines  376–​77

748 Index Human Rights Committee (cont.) Öcalan v Turkey  376–​77 Sarma v Sri Lanka 362 VO v Norway  363–​64 Human Rights Council Commission on Human Rights (CHR)  8, 14–​15, 16, 21, 109–​10, 123, 132–​33, 134, 139, 181, 182–​90, 234–​35, 239–​40, 444, 457, 464, 685–​86, 687–​88,  700 Special Procedures  228–​37 Universal Periodic Review (UPR)  1–​2, 14, 21, 33–​34, 124–​25, 187, 190, 197, 199, 219–​24, 294–​95, 321–​22, 451, 464–​65, 543–​44, 640, 652–​53, 678, 680, 681 Human rights defenders  112, 116–​17, 192, 210, 459–​60, 470, 486, 488 Humanitarian aid  55 Humanitarian crises  54–​57 Humanitarian intervention  54–​55, 57, 59–​60 Humphrey, John  668–​69, 668–​69n4 Impunity  75–​76, 76n164, 86, 163, 234–35, 433, 507, 683–​84n64, 689–​90, 692 India  42–​43, 52, 194–​95, 204, 222, 227–​28, 314, 328–​29, 341n16, 344–​45n36, 412, 421n152, 437, 605–​6, 607–​8 Indigenous peoples  1–​2, 10, 291–​95, 310, 313–​14, 315–​16, 326, 330–​31, 360, 365, 390, 488, 683 Expert Mechanism on the Rights of Indigenous Peoples (EMRIP)  294–​96, 304–​5, 306 Special Rapporteur on the Rights of Indigenous Peoples  293–​96, 300, 302–​3, 304–​5,  306 UN Declaration on the Rights of Indigenous Peoples (UNDRIP)  292, 295–​305 World Conference on Indigenous Peoples 306 International Committee of the Red Cross (ICRC)  45, 55–​56, 82–​83, 686n72 International community  60, 61–​62, 76, 84, 104, 108, 113, 121, 129, 273, 275, 579, 674 International Convention on the Elimination of All Forms of Racial Discrimination, (ICERD)  106–​7, 110, 161, 170–​71, 309–​10, 369, 376, 382–​83, 394, 413–​36 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW)  110, 601 International Court of Justice (ICJ) advisory opinion 118–19 Advisory Opinion on Reservations to the Genocide Convention (1951)  154

Advisory Opinion on the Kosovo Declaration of Independence (2010)  118–​19,  155 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Wall opinion)  155, 157, 174 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons  113–​14, 118, 157 Advisory Opinion on Western Sahara  155 Namibia opinion  154–​55 jurisprudence Avena case  153–​54,  155–​57 Barcelona Traction  153–​54, 164, 166 Belgium v Senegal  162–​66 Congo v Rwanda  158–​59,  165–​66 Congo v Uganda  158, 174 Corfu Channel case  153–​54 Cumaraswamy case (1999)  154 Diallo case (2010)  159–​61, 171–​72, 174 Genocide case (2007)  156–​57, 159, 160,  170–​71 Georgia v Russia  161–​62,  170–​71 Germany v Italy  165–​66,  167 LaGrand case  153–​54,  155–​57 Mazilu case (1989)  154 Nicaragua judgment (1986)  154 Republic of Congo v France  166–​67 South West Africa cases  16–​17, 154–​55 Tehran Hostages case  153–​54 International Covenant on Civil and Political Rights (ICCPR)  51, 101–​2, 118, 159–​60, 165, 173, 183, 191, 303, 339, 579–​80, 620,  720–​21 derogation 374 reservations  373–​74 International Covenant on Economic, Social and Cultural Rights (ICESCR)  101–​2, 139, 183, 421, 439, 450, 451, 456, 721 International crimes  57–​65 crimes against humanity  57, 60, 61–​62, 73–​74, 75–​77, 78, 105, 118, 120, 121–​22, 159, 166–​68, 198, 594–​95, 598, 689–​90, 694–​96,  704 crimes of aggression  77, 80–​81 Genocide  57, 58, 59, 60, 61, 72, 73–​74, 75–​76, 94, 105, 120, 121, 153–​54, 158–​59, 166–​67, 213, 226, 315–​16, 321, 689–​90, 699–​701 Genocide Convention (1948)  58–​59, 133, 154, 158–​59,  170–​71 Special Adviser on Genocide Prevention  315–​16,  486

Index  749 war crimes  60, 66, 73–​74, 76–​77, 105, 120, 121, 166, 167–​68, 275–​76, 534, 689–​90, 694,  695–​96 International Criminal Court (ICC)  3, 77–​81, 105, 675–​76, 692, 694–​95 Rome conference  79 Rome Statute  77–​78, 80, 105, 275–​76, 379–​80, 539, 677 Article 16  598 International Criminal Tribunal for Rwanda (ICTR)  78,  94–​95 International Criminal Tribunal for the former Yugoslavia (ICTY)  74, 94–​95, 159, 165–​66 International human rights law  10, 11, 13–​14, 19–​20, 35–​36, 84, 85, 151–​52, 164–​65, 174–​75, 204, 213, 215–​16, 227–​28, 232, 272, 377, 382–​83, 472–​73, 558, 713, 715,  742–​43 International humanitarian law  57–​58, 73–​74, 75–​77, 82–​86, 117, 157–​58, 167, 169, 172–​73, 177, 687–​88, 689–​90, 694 Geneva Conventions (1949)  82, 118–​19, 165 International Labour Organization (ILO)  133, 260–​61, 301, 321–​22, 529, 560–​61, 604, 611, 616–​17, 624–​28, 721, 729–​30, 736,  741–​43 Convention and Recommendation Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value  262 Convention Concerning Discrimination in Respect of Employment and Occupation 262 Convention on Domestic Workers  620–​22,  625–​26 International Law Commission (ILC)  106, 163–​64, 175–​76,  534–​35 International Monetary Fund (IMF)  144, 733 International Organization for Migration (IOM)  628–​30,  641 International peace and security  7, 16, 40–​42, 43–​44, 46, 47–​65, 69, 72–​76, 77–​79, 80, 81, 87, 88, 90, 91–​92, 93–​95, 97–​98, 149, 704, 709, 739–​40 International Research and Training Institute for the Advancement of Women (INSTRAW)  269–​70,  280 Iran  10, 64–​65, 116–​17, 124, 153–​54, 195–​96, 197, 204, 233–​34, 314, 452, 638, 702–​3 Iraq  46, 54–​55, 54–​55n47, 56, 87–​88, 96, 116, 420n144, 579, 586, 597, 632, 670, 674, 675,  702–​3 Israel  3n7, 30, 94–​95, 118–​19, 124, 157, 204, 206–​8, 209, 210, 213, 222, 226–​27, 229–​30, 485–​86, 667, 694, 695–​96 Italy  167, 382n290, 470, 614–​15, 638

Japan  42–​43, 131–​32n7, 194, 341n16, 344–​45n36, 497n139, 586, 593n53, 614–​15, 618, 638 Judicial review  91 Jus ad bellum  82,  83–​84 Jus cogens  91, 157, 158–​59, 163, 165–​66, 168, 169, 177, 714 Jus in bello  82, 153–​54, 172 Kashmir 52 Kazakhstan 597 Korean War  43–​44, 82 Kosovo  51, 53–​54, 59, 60, 67, 68, 71, 94, 116, 118–​19, 120, 155, 673–​74, 687–​89,  690–​91 Lawyers Committee for Human Rights  147 Least Developed Countries (LDC)  202, 717–​18 Lebanon  116, 229–​30, 494–​96, 692 LGBTQI  1–​3, 147, 199–​200, 210, 214–​15, 418, 474, 515–​16, 704 Liberia  67–​68, 83–​84, 88, 119, 675 Libya  62–​63, 83–​84, 94, 95, 96, 97, 121–​22, 126, 195–​97, 198, 379–​80, 579, 667, 695–​96 Lithuania  593n53, 597 Mainstreaming  182–​93,  697–​99 development  718, 720–​21, 731 gender  256–​57, 271–​81,  284–​85 human rights  137–​38, 141–​42, 176–​78, 192–​93, 200, 210, 216–​17, 697–​99, 709, 710–​12, 726, 737 Mauritius  118–​19, 214, 470, 474 Memory laws  389 Mexico  73, 155–​56, 295–​96, 379–​80, 421, 432–​33, 452, 463, 494–​95, 547, 575–​76, 586, 592, 595, 597, 598–​99, 613, 618–​19, 631–​32, 636–​37, 641, 681, 693 Millennium + 5 Outcome  60 Millennium Declaration (2000)  279, 287, 340, 648–​49, 723–​357 Millennium Development Goals (MDG)  139, 256–​57, 279–​80, 287, 709–​10, 714–​15, 720–​22, 724, 725 Minority rights  326, 519, 623 Monterrey Consensus  718 Morocco  52, 226, 420n144, 437, 597, 605–​6, 614–​15, 616, 616n78, 632–​33 Mozambique  67–​68, 544–​45,  669–​70 Myanmar  42, 62–​63, 64 Namibia  67, 154–​55,  669–​70 NATO  58, 59–​60, 62, 74, 198, 687–​89, 690–​91 New International Economic Order  15, 108, 136

750 Index NGOs  44–​47,  582 Amnesty International  5, 45–​47, 185–​86, 582, 678 Asian Federation Against Involuntary Disappearances (AFAD)  582 Federación Latinoamericana de Asociaciones de Familiares de Detenidos-​ Desaparecidos (FEDEFAM)  582 Human Rights Watch  45–​47, 227–​28, 237, 582, 678 Kenneth Roth  675–​76 International Center for Transitional Justice  46–​47 International Commission of Jurists  582 International Federation of Christians Against Torture (FIACAT)  582 International Federation of Human Rights (FIDH) 582 Médecins sans Frontières  45 Oxfam 45 Nicaragua  67–​68, 154, 175 Nigeria  116–​17, 135,  544–​45 Non-​Aligned Movement (NAM)  122–​23, 203–​4, 227–​28,  718 Nuremberg  47–​48 Obligations Erga Omnes  153–​54, 157, 163–​64, 164n53, 173, 177, 367–​68, 372 Occupied territories  8, 30, 106, 116, 213, 226,  229–​30 Office of the High Commissioner for Human Rights (OHCHR)  1–​2, 221, 222, 223, 226, 232, 301, 479, 483, 531–​32, 533–​34, 542, 543–​44, 550, 633, 649, 650, 671–​72, 676, 679, 681–​83, 713–​14, 725 Office of the Special Adviser on Gender Issues and Advancement of Women (OSAGI)  280 Ombudsman, ombudsperson  92, 521, 527, 668 Organisation of American States  4, 355–​56, 562–​63,  634–​35 Inter-​American Commission of Human Rights,  343,  562–​63 Inter-​American Court of Human Rights  155–​56, 343, 353–​54,  379–​81 Organisation of Islamic Cooperation  198, 203–​4,  226 OSCE 59 Pakistan  52, 148, 207–​8, 214, 222, 227–​28, 344–​45n36, 510, 693 Palestine  106, 206–​7, 208–​9, 320–​21, 519, 681,  695–​96 Paris Agreement  75, 474 Parliamentarians  101–​2

Peacekeeping  15–​16, 56–​57, 62, 66, 69–​70, 72, 82–​86, 95, 142, 275–​76, 669–​70 ECOMOG  53, 83–​84, 689 INTERFET  53–​54 Mission for the Referendum in Western Sahara (MINURSO)  68 ONUSAL  69–​72 UNAMIR  58–​59, 72, 699–​700 UNITA  46, 69, 88 UNMIBH 79 UNMIH  69–​70,  71–​72 UNMIK  68, 71, 85 UNOMIL  69–​70 UNOSOM II  55, 56–​57 UNPROFOR  55–​57, 58, 69–​70n123, 70, 71–​72,  677 UNTAC  68–​69,  70–​72 UNTAET  68, 71, 85 Permanent Members of the United Nations Security Council  43–​44 China  1, 9, 34, 42, 44, 52–​53, 62–​63, 64–​65, 78, 107, 121–​22, 147, 148n72, 194–​97, 200, 204, 207–​8, 210, 233, 237, 344–​45n36, 488, 492–​93n107, 512–​13n247, 582, 583–​84, 614–​15, 673, 690–​91, 693 France  42, 56, 62–​63, 64, 79, 131–​32n7, 166–​67, 313–​14n41, 422n159, 422–​23, 580–​81, 582, 586, 614–​15, 618 Russia  10, 34, 42, 44, 59–​60, 62–​63, 64–​65, 78, 97, 121–​22, 131–​32n7, 147–​48, 148n72, 161–​62, 170–​71, 194–​96, 197, 207–​8, 209, 232–​33, 237, 320–​21, 333, 367–​68, 450, 466–​67, 488, 524–​25, 582, 657–​58,  684–​86 United Kingdom  42, 50, 56, 64, 79, 152n.5n3, 194, 209, 316–​17, 432–​33, 435–​36, 466–​67, 485–​86, 498, 512–​13n249, 638 United States of America  3, 10, 30, 34, 42, 56, 107, 124–​25, 124–​25nn115–​117, 154, 155–​56, 191, 267, 281, 295–​96, 367–​68, 381–​82, 485–​86, 488, 506, 509–​10, 519, 581–​21, 604n16, 605–​6, 668, 673 Peru  149–​496, 506–​7, 606, 638 Philippines  34, 432–​33, 434, 579, 606, 613, 636–​37,  641 Duterte, Rodrigo  3 Poverty  141, 144, 264, 274–​75, 286, 288, 459–​60, 471, 473, 718, 719, 724, 730–​31, 733 Agreed Conclusions on Eradicating Poverty  143–​44 Special Rapporteur on extreme poverty and human rights  732 Programs of action  115–​16

Index  751 Racism  51, 208–​9, 325, 327–​28 Durban World Conference on Racism (2001)  5, 140, 311, 317–​18, 328–​29,  690–​91 Durban Declaration and Programme of Action 311 Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance  311, 315, 321–​22 Rape  272–​73, 275–​76, 433, 470, 512 Refugees  360, 487–​88, 505, 686, 700–​1 Geneva Convention relating to the Status of Refugees (1951)  631–​32 Resolution 688 (1991)  54–​55 Resolution 1235(XLII)  135, 183 Resolution 1503 (XL VIII)  135, 183 Responsibility to protect (R2P)  3, 16, 42, 60, 61–​63, 96, 97, 120–​22, 369, 694–​95 Right to development  26, 106–​7, 108, 112, 123–​24, 139, 141, 266, 459–​60, 682, 683, 712, 714, 720–​21, 723–​24, 725–​27,  730–​32 Rohingya  94, 407n73 Rwanda  22–​23, 45, 58–​59, 60, 66, 73–​76, 94, 116, 120, 127, 158–​59, 165–​66, 275–​76, 675–​76, 686, 699–​701,  704–​5 Special Rapporteur for Rwanda  700 Saudi Arabia  10, 107, 194–​95, 196–​97, 198, 320–​21, 488, 704 Second World War  47–​48, 167, 169–​70, 258–​59 Security Council Commission on Israeli Settlements 66 Self-​determination  9–​10, 15, 25–​26, 50, 52, 53–​54, 104–​5, 106, 108, 118–​19, 154–​ 55, 258–​59, 317–​18, 360, 370–​71, 390, 457, 720 Senegal  162–​66, 341n16, 498, 586, 606, 613,  636–​37 Sexual violence  86, 116–​17, 433 Shadow report  5, 19–​20, 349–​50, 559, 570 Sierra Leone  53, 54, 72, 76–​77, 88, 119, 196, 201, 544–​45, 687–​88, 687n78,  689–​90 Six Day War  229–​30 Small Island Developing States (SIDS)  202 South Africa  8, 10, 30, 49–​51, 107, 107n28, 116, 120n98, 154–​55, 214–​15, 229, 230, 231, 455, 467–​68, 473, 638 High Court (formerly Constitutional Court)  455,  675–​76 Southern Rhodesia  50–​51 Special Adviser on Field Operations  701 Special Rapporteur for the Status of Women and Family Planning Project  264

Special Rapporteur on Adequate Housing  572 Special Rapporteur on follow-​up to views  346, 354, 367 Special Rapporteur on New Communications  346, 357, 365 Special Rapporteur on the human rights of migrants  620, 623, 637–​39 Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-​recurrence  589 Special Rapporteur on the Right to Food  728–​29 Special Rapporteur on the rights of persons with disabilities  464, 572 Special Rapporteur on the Sale of Children  543 Special Rapporteurs of the Subcommission on Minorities 262 Special Rapporteur on Torture  480, 583 Special Rapporteur on Violence Against Women  273,  284–​85 Srebrenica Massacre  58, 59 Sri Lanka  22–​23, 204, 208, 209, 213, 227–​28, 362, 408–​9, 437, 494–​95, 579, 597, 606, 613, 636–​37, 667, 669, 698–​99, 704–​5 Status of Force Agreements (SOFAs)  82 Sub-​Commission on the Prevention of Discrimination and Protection of Minorities  15, 133, 239–​40, 261–​62 Sudan  42, 61–​62, 64, 74, 78–​79, 116–​17, 124–​25, 147–​48, 149, 208, 209, 213, 227, 477n1 Sustainable Development  106, 139, 257–​58, 259–​60, 274, 279–​81, 340, 401, 455–​56, 682, 720–​22, 725, 739–​40 Sustainable Development Goals (SDG)  192–​93, 256–​57, 279–​80, 405, 410–​11, 459–​60, 473, 714–​15, 720–​22, 725–​26, 738–​39,  742–​43 Syria  62, 66, 95, 96–​97, 116–​17, 121–​22, 196–​97, 207–​8, 210, 213, 226–​27, 229–​30, 485–​86, 579, 632, 632n177, 694–​96 Independent Commission of Inquiry on Syria  66 Targeted sanctions  88–​92 Terrorism  81, 88–​92, 96, 102, 225–​26, 329 Third World  9–​10, 42, 64 Tibet  94–​95,  673 Togo 597 Toxic Dumping  234–35 Transitional justice  47, 66, 73, 675, 692–​93 Transnational Radical Party  148, 148n72 Treaty bodies  17–​21 UN Charter Chapter VII  50, 54, 55–​56, 64, 66–​67, 73–​74, 75–​76, 80, 82, 87, 90–​91, 121, 172 Chapter VIII  83–​84

752 Index UN Development Fund for Women (UNIFEM)  269–​70, 280, 436–​37, 701, 726 UN Development Programme (UNDP)  102–​3, 142, 265, 301, 560–​61, 634, 685, 697, 701, 719–​20, 726, 731, 742–​43 UN Secretary-​General Annan, Kofi  15–​16, 42–​43, 141, 181, 186, 228–​29, 293, 531, 671–​72, 673, 674, 677, 690, 691n94, 703, 709 Ban Ki-​Moon  6, 214 Boutros Boutros-​Ghali  15, 670–​71, 709, 716–​17,  734–​35 UN Women  255–​56, 257, 280–​81, 283 UNESCO  254–​55, 260–​61, 262, 529, 560–​61, 634, 634n185, 641, 729, 736 UNICEF  142, 301, 520, 529, 529n37, 533–​34, 542, 544–​45, 560–​61, 569, 634, 701, 726, 729 Universal Declaration of Human Rights (UDHR)  8, 30, 51, 106–​9, 110, 139, 146, 153–​54, 165, 183, 228–​29, 260, 339–​41, 668, 720, 723–​24, 725–​26 United Nations High Commissioner for Refugees (UNHCR)  321–​22, 529, 630–​33, 701,  728–​29

Venezuela  60, 124, 147, 197, 207–​8 Vienna Conference on Human Rights  15, 122–​23, 140, 272–​73, 682, 735 Vienna Declaration and Programme of Action  103n13, 123, 141, 146, 536, 671, 697–​98, 712, 714 Western Sahara  52, 68, 155, 226 World Bank  102–​3, 144, 275–​76, 301, 560–​61, 571–​72, 634, 683, 701, 719–​20, 721, 726, 737, 741 World Conference on Education for all (1990)  140 World Health Organization (WHO)  4, 229, 560–​61,  571–​72 World Intellectual Property Organization (WIPO)  301, 728 World Summit for Social Development (1995)  140,  714–​15 World Trade Organization (WTO)  683, 728 Yugoslavia  55, 57–​58, 66, 73–​76, 87, 116, 127, 275–​76, 310, 494–​95, 579, 614–​15, 669–​70, 675, 677, 687–​88 Zambia  214, 586 Zimbabwe  64, 192, 196–​97, 204, 226