by Iveta Cherneva
All eyes in 2015 are on the United Nations. The new development plan to succeed the Millennium Development Goals will be announced this year, but another UN process—equally important to human well-being—is gaining speed: the strengthening of the UN human rights treaty bodies, or the independent expert committees, nested at the UN Office of the High Commissioner for Human Rights in Geneva, which monitor the implementation of the core international human rights treaties.
The UN High Commissioner for Human Rights Navi Pillay spearheaded this process back in 2009, when Pillay opened multi-stakeholder consultations, and continued in 2012, when the Office of the High Commissioner presented a report with its recommendations. This gave rise to a two-year inter-governmental process and finally resulted in General Assembly Resolution A/RES/68/268, adopted in April 2014, which will potentially have an impact on the implementation of the treaty bodies’ recommendations.
Individual complaint procedures: the odd animal of the international legal system
The UN human rights treaty bodies have a role to play that goes beyond the bureaucratic. They are the UN bodies that under certain conditions can accept direct legal complaints by individuals against a state—a function unique in the international legal system, and one that is praised by human rights advocates and commentators alike as a notable departure from a system traditionally dominated by states.
The treaty bodies have developed an extensive volume of human rights jurisprudence through this process, although there are limitations in the individual complaint mechanisms, including that complainants must have exhausted domestic remedies, demonstrating that the state has failed to address the human rights issue and that it is time to take the grievance to the international level.
The potential of the individual human rights procedure is great. A final judgment by a treaty body, in theory, can bring about accountability for a human rights violation where the state has failed to do so by bringing the case to the attention of the state and following up on the steps taken to amend the situation. However, this is possible only with the cooperation and will of the state in question.
Among the main concerns that guided the consultative process on reform that began in 2009 was precisely the lack of implementation of treaty body recommendations by states—a realization which undermines the relevance of the treaty bodies in promoting and protecting human rights.
Ways to strengthen the treaty bodies
In order to resolve that systemic challenge, General Assembly Resolution A/RES/68/268 envisions a capacity-building package to assist states in fulfilling their treaty obligations. The Treaty Bodies Secretariat based in Geneva is expected to absorb the additional capacity-building program in 2015.
There is an argument to be made that it is not a higher number of additional recommendations that is needed, but instead that it is necessary to deepen the implementation of the already issued recommendations. In this line of reasoning, the UN human rights field officers’ role has been emphasized, as more direct on-the-ground capacity building and assistance to state parties might contribute to more effective implementation.
However, lack of capacity is not the whole picture, and some challenges to treaty body recommendations remain purely political in nature, such as lack of will and the non-legally binding nature of the recommendations. These, unfortunately, are challenges that cannot be easily dealt with at the present moment.
What can be done is to strengthen the credibility and visibility of treaty bodies’ recommendations. The GA Resolution includes measures to modernize the treaty body system and make it more accessible, including the streaming of public sessions online, as well as word limits imposed on documents to make them shorter and more accessible.
In order to strengthen the treaty bodies’ credibility with state parties, additional reference was made to the 2012 Addis Ababa principles on neutrality and impartiality of the independent experts members of the treaty bodies. If they are to be taken seriously by states, independence—real and perceived—is at the center of the committees’ role as quasi-judges in rendering authoritative legal interpretations of the human rights treaties. Additionally, as stressed by the GA Resolution, the geographical and gender composition of the committees may also play a role in boosting the credibility of treaty body recommendations.
Other UN mechanisms, such as the UN Special Procedures, could also play a role in their visits and direct diplomatic engagement with the highest levels of government by reminding officials of obligations related to paying heed to treaty body decisions. Also, the Universal Periodic Review (UPR) run by the UN Human Rights Council can integrate the implementation of treaty body decisions as an indicator to consider when it periodically reviews the human rights record of countries.
Provided that the political will is present, state parties could create a government office (much like an Ombudsman) that monitors the implementation of treaty body recommendations and liaises with legal, law enforcement, and other government officials on the national level in efforts to see recommendations implemented.
Other parties outside of states also have a role to play to boost the credibility of treaty bodies. For example, NGOs can be vocal at the international or national levels in order to put pressure on state parties towards implementation, while the media can also boost the visibility of treaty body recommendations by closely following what states are doing to bring their legislation and practice in compliance with the final decisions.
Political will, however, remains the key to strengthening the UN human rights treaty bodies. The 2015 capacity building program absorbed by the treaty bodies provides the right time and opportunity for states to demonstrate genuine interest and will to implement treaty bodies’ final decisions. Then and only then can 2015 become the year of strengthening the human rights treaty bodies.
About the Author
Iveta Cherneva is an author and commentator on global governance and international organizations, security, human rights, and sustainability. Her career includes work for the UN, U.S. Congress, Oxford University, and think tanks in several of the world's diplomatic capitals. Iveta is the author of Trafficking for Begging (2011); The UN Security Council, the ICJ, and Judicial Review (2013); editor of The Business Case for Sustainable Finance (2012); and co-author of Regulating the Global Security Industry (2009). Appointed Atlantic Council young leader in 2012 and William H. Donner Human Rights Fellow in 2007, she is a frequent commentator in international news media. Iveta has testified before the UN Working Group on business and human rights.