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Hudson, Andrew --- "Dangerous Potential: Streamlining the United Nations Human Rights Committees" [2002] AUJlHRights 15; (2002) 8(2) Australian Journal of Human Rights 55

Dangerous Potential: Streamlining the United Nations Human Rights Committees

Andrew Hudson[*]

[T]he quest for reform must not be embarked upon without acknowledging the ... importance of proceeding with sensitivity ... to ensure that the fundamental integrity of the system, and particularly its ability to safeguard human rights, is not sacrificed to illusory notions of streamlining and efficiency (Alston 1997: 5).

Introduction

The international human rights system is rather amorphous in nature and one that continues to evolve rapidly. Of this broader regime, the human rights protection mechanisms established by the United Nations (UN) form only one subsidiary element.[1] That the UN human rights system even exists, although imperfect, is remarkable given the challenges posed to its universalism particularly by assertions of state sovereignty and cultural and religious relativism. Since the inception of the Charter of the United Nations in 1945, the UN human rights system has been predicated on a natural rights conceptualisation of human rights, emphasising the ‘inherent dignity’ and ‘inalienable rights’ of individuals and the indivisible and universal nature of those rights (Universal Declaration of Human Rights First Preambular paragraph, GA Res 217A, 3 UN GAOR (183rd plen mtg), UN Doc A/Res/217A). For the purposes of this essay, I will be restricting my analysis solely to the human rights treaty based committees. This essay, will therefore necessarily exclude a large proportion of UN human rights mechanisms and should not be taken as a representative evaluation of the whole UN system.[2]

In this essay, I critically analyse current proposals for streamlining the UN human rights committees. This issue has become of particular contemporary significance in Australia in the last two years. In 2000, in response to critical findings about Australia’s treatment of indigenous peoples by the UN Committee on the Elimination of Racial Discrimination, the Government announced a ‘review’ of the UN human rights treaty system (Minister for Foreign Affairs 2000a). The results of the ‘review’ found that, “UN human rights treaty bodies need a complete overhaul” (Minister for Foreign Affairs, Attorney-General and Minister for Immigration and Multicultural Affairs 2000b), and included an announcement of three workshops over three years to address, among other issues, streamlining the operation of the treaty committees (Minister for Foreign Affairs, Attorney-General and Minister for Immigration and Multicultural Affairs 2001a). Moreover, the Government announced a range of other initiatives as part of a diplomatic initiative to reform the UN treaty bodies: a Ministerial meeting at the UN of ‘like-minded countries’ in September 2001; a campaign by Australia to gain election to the Commission on Human Rights for 2003-5, which it subsequently achieved in April 2002; and Australian support for ratification of the core human rights treaties particularly by countries in the Asia-Pacific region (Mathews 2001).[3] The first two workshops have been held in Geneva on 19 June 2001 and June 25-26, 2002. Among other issues considered, the workshops have, “examine[d] measures to better harmonise and coordinate the work of the treaty committees” (Minister for Foreign Affairs, Attorney-General and Minister for Immigration and Multicultural Affairs 2001b).[4] I argue that the recent Australian hostility to the committees and the subsequent discussion of streamlining is a prime example of the dangers of the streamlining proposals.

The structure of this essay entails a brief explanation of the treaty based human rights institutions and an exploration of the legitimacy of the claim that duplication hinders their effective functioning. I then outline the streamlining proposals made by Philip Alston and others, before critically analysing these proposals and offering some additional reform measures. I define streamlining proposals as those that purport to better and more efficiently organise the human rights system. My main thesis is that reform of the committee system is desirable and that moderate streamlining suggestions within the parameters of the current structure is eminently sensible. However, in the main, the more radical consolidation proposals are inherently flawed for they are unlikely to dramatically improve the efficiency of the committees and will compromise the integrity of the human rights regime. In my opinion, an overhauled and drastically streamlined committee structure will be prone to neglect issues in need of specific, specialised attention such as the rights of women and children and will provide states with an opportunity to downgrade international scrutiny of their human rights records.

The UN human rights treaty based system

An outline

The human rights treaty protection regime created by the UN consists of committees that comprise independent experts mandated to monitor the implementation of the rights established in the particular treaty. These treaty bodies have been labelled, ‘the core of the international human rights order’, though that may be overstating their importance (Report of the Fifth Meeting of Persons Chairing the Human Rights Treaty Bodies). They are attached to six of the major human rights treaties:[5] the Committee on the Elimination of Racial Discrimination[6]; the Human Rights Committee[7]; the Committee on Economic, Social and Cultural Rights[8]; the Committee on the Elimination of Discrimination against Women[9]; the Committee against Torture[10] and the Committee on the Rights of the Child[11]. A feature of the UN human rights system is that it extends beyond mere standard setting and enshrinement of human rights norms in treaties. The critical human rights treaties also establish monitoring committees to focus on implementation and enforcement of states parties’ human rights treaty obligations.[12]

Certain elements of this implementation framework are common to all treaties. Firstly, each state party undertakes to submit reports to the committee on the implementation of their treaty obligations. States are required to submit a detailed initial report soon after becoming a party to the treaty, against which subsequent progress is measured (Coliver 1992). Thereafter, they are to submit update periodic reports every four or five years usually focusing on areas of concern identified by the committee in its previous concluding observations (Lillich & Hannum 1995: 411). Reports are considered by the committee which engages in ‘constructive dialogue’ with government representatives, before releasing concluding observations commenting broadly on the state’s performance in relation to its treaty obligations (Evatt 1988: 56). Secondly, the Human Rights, CAT and CERD Committees are empowered to receive and comment on individual communications or complaints from individuals within a state party who believe that their rights under the treaty have been violated.[13] Thirdly, these three committees also have the ability to receive inter-state complaints, that is, communications from one state that allege another state is breaching its obligations.[14] Fourthly, most committees are able to add significantly to the corpus juris of human rights law by producing general comments or recommendations that expound upon the obligations required by the treaty.[15] Lastly, all committees report to the General Assembly, providing them with a high-profile forum in which to ‘shame’ state parties.[16]

The rationale underlying such a reporting system was that the process of a state compiling a report on its fulfilment of treaty obligations would require self-analysis and self-criticism and that publicity may prompt domestic public debate and government action with respect to possible violations (Charlesworth 1998: 71).

Moreover, states would benefit from the ‘constructive dialogue’ with independent experts who have experience in assisting states to comply with their treaty obligations (Coliver 1992: 174). However, as Anne Bayesfsky (1994: 231), comments, ‘[t]he idea that governments will take the opportunity to present their international human rights situation to international forums in self-critical or negative terms is illusory’.

Problems with the System: Exaggerated Duplication Claims?

In practice, the system has not operated perfectly and has now been described as ‘in difficulty’ (Crawford 2000: 1), ‘in crisis’ (Bayesfsky 1995: 228) and ‘deeply flawed’ (Charlesworth 1998: 66). The various shortcomings of the system are well documented and here I shall just concentrate on those problems directly relevant to the streamlining reforms.[17] The development of the monitoring committees has not, unfortunately, been systematic or uniform, but could more accurately be described as an uncoordinated proliferation (Alston 1992: 2). Such proliferation is argued to be problematic in three broad areas: duplication between treaty bodies; the growing burden on states and committees, and the potential for inconsistent jurisprudence. I argue that these claims are slightly exaggerated, more apparent than real and that an element of repetition is not necessarily detrimental. Nevertheless, it is on these three grounds that proponents of radical streamlining justify their proposals[18]. Firstly, given the ad-hoc development of six independent monitoring committees their mandates overlap to some extent and there coexist related provisions in different instruments (Farer & Gaer 1993: 264). As such, discrepancies may exist between related provisions in different treaties (Tistounet 2000: 384). Similarly, the substantive obligations under many of the treaties overlap, such as children’s rights, which in one context or another are within the mandate of all six committees (Brody 1994:297). However, in my opinion, these duplication concerns are exaggerated and in reality of only minor hindrance. Whilst there may be overlap between treaties, it is almost impossible to find any direct contradictions between treaties on the standards and obligations that they impose on states. As I argue below, conflict between treaty standards is to be strenuously avoided, but an element of duplication between treaty bodies is not necessarily detrimental, for it maximises scrutiny of state behaviour and therefore is likely to secure a greater observance of human rights. It may well be that, ‘multiplicity of recourse procedures... is more important than institutional order’ (Meron 1982: 778).

Nevertheless, one consequence of such duplication is that state parties are required to submit and engage in dialogue with different bodies with respect to similar or identical issues. Supporters of radical streamlining reform argue that this repetition in reporting is creating an unbearable burden on states (Alston & Steiner 2000: 775). Given that universal ratification of the six core treaties is the aim of the UN human rights system, the reporting burden on states is increasing as the majority of states have now ratified a majority of the treaties. With ratification of all committee treaties, states would be required to:

Moreover, they would also be expected to consider numerous general comments and respond to concluding observations (Alston 1997: 20). Governments, such as Australia, and radical reformers are arguing that the encumbrance on states participating in the treaty system is unnecessarily high and should be reduced by more effective co-ordination between treaties (Williams 1999: 158). They argue that the increasing burden, not just on states, but also on the committees is evidenced by the enormous number of overdue state reports.[19] As the number of reports has grown, the part-time committees, which have limited resources, have been incapable of processing all the reports even if they were to be submitted in a timely fashion (Alston 1997: 20). Yet, in my opinion, the untimely submission of reports by states is more accurately attributed to a deliberate lack of political will by states that desire to avoid international scrutiny. Such an analysis is supported by treaty statistics, which indicate that a large number of overdue reports cannot be accounted for by the fact that the state has ratified a larger number of the treaties (Bayesfsky 1994: 234).[20] A positive correlation between the number of overdue reports from a state and the number of committees it is required to report to would be expected if overdue reports were due to the overlapping requirements of reporting to a number of different committees. There should be no misconception that radical reform will necessarily alleviate the overdue report problem.

Lastly, and perhaps most problematic of all, lack of co-ordination has the potential to result in conflicting treaty interpretations by different committees. With the various committees interpreting treaty provisions in their concluding observations and general comments, it is possible that significantly divergent or incompatible interpretations could emerge in relation to analogous provisions in different treaties (Painter 1999: 76). Not only would such inconsistency create uncertain human rights jurisprudence, but also could result in governments receiving varying or conflicting guidance (Meron 1982: 758). Moreover, the system also has the potential to produce inconsistent decisions on the same case involving an individual complaint procedure taken to different committees successively.[21] Nevertheless, while the system appears to contain potential for conflict of interpretations, such potential has not been substantially actualised in reality. Eric Tistounet has undertaken research on the conflict between committee treaty interpretations and development of jurisprudence and concludes that, ‘[o]n the whole... general comments and concluding observations adopted by various bodies do not overlap...’( Tistounet 2000: 395). Empirical evidence would seem to suggest that while the system has potential for duplication and inconsistencies, this has not in fact eventuated

Streamlining proposals

In response to the apparent ‘crisis’ of the system, the General Assembly and Human Rights Commission requested Professor Philip Alston to prepare an independent report canvassing options for enhancing the effectiveness of the committees (Alston 1989; Alston 1993; Alston 1997). Other similar rationalisation proposals have been suggested by such individuals as Bayesfsky (1994),[22] Meron (1985: 664), and Scott (2000: 404). Streamlining reforms can be contextualised utilising a continuum of reform from most fundamental alteration, to minimalist change. The most radical streamlining option is the consolidation of all treaty committees into one new treaty body (Alston 1997: 22; Alston 1993: [182-3]). A new ‘super-committee’ would replace the existing six committees, ensuring that there would be just one body to monitor and supervise all state behaviour in relation to the different types of rights. Alternatively, it is proposed that the reporting requirement be consolidated such that each state party submits one global report in satisfaction of the requirements under each of the treaties to which they are a party (Alston 1997: 21; Alston 1993: 15). In addition to measures aimed at rationalising current arrangements, Alston suggests that future and further proliferation of treaty bodies should be avoided by combining any new monitoring bodies with the current committee system.[23]

If no consolidation of any type is possible, Alston suggests the elimination of the general reporting requirement to be replaced by a more tailored and thematic approach (Alston 1997: 21). Committees would put specific questions to a state party in advance, requesting information on certain issues and the answers from that state party would fulfil their reporting obligations. A range of other more moderate streamlining reforms are suggested such as states’ cross-referencing their reports to different committees, and greater information sharing between committees by establishing a central documentation centre with the Office of the UN High Commissioner for Human Rights containing information on each state’s human rights records (Alston 1997: 25). More substantial interaction or ‘cross-fertilisation’ between committees is also advocated, achieved particularly by representatives of one committee attending other committee sessions. Further measures to reduce duplication include the development of uniform procedures and standard terminology between committees and the development of a treaty body jurisprudence database.[24]

Review of the proposals

In my opinion, the non-consolidation streamlining proposals above are sensible reforms aimed at rectifying the concerns of duplication, inconsistency and excessive burden on states, without jeopardising the sound foundations of the system. As such, I argue that these streamlining reforms should be, and in fact already are being, implemented by the monitoring regime. However, the more radical amalgamation proposals, of both state reporting and committee structure, are unlikely to be successful in improving the efficiency of the system and risk compromising the integrity of human rights regime. In critically reviewing just these consolidation proposals below, I argue that the limited efficiency gains that may result are surpassed by their likely detrimental effect on the principles of the regime.

Advantages of consolidation proposals?

The consolidation of reports and committees is argued to have many benefits for the efficiency of the system. Firstly, the streamlining of reports has an obvious attraction for states, namely reducing their reporting burden (Samson 1992: 675). It is contended that with a manageable reporting requirement, states would not be tardy in the submission of their report and with a reduced number of reports to consider, the committees would be more efficient themselves (35(4) UN Chronicle 1998 : 44, 45).

However, I remain sceptical that a consolidated report still containing information on each of the disparate human rights areas would significantly lower the reporting burden on states parties and it is unlikely to produce the dramatic improvement in system efficiency that the reform anticipates (Report of the Secretary-General 1997: 15). Furthermore, the success of such reform is predicated on an assumption that states do not submit reports in a timely fashion because of the duplication and burden of reporting to numerous committees. Yet, as demonstrated above, the untimely submission of state reports is perhaps more due to lack of political will than excessive encumbrance. Consequently, the consolidation of state reporting that is principally aimed at increasing the efficiency of the system by ensuring reports are submitted promptly, is unlikely to realise the efficacious results it desires. Rather, state parties should be encouraged to continue adopting issue-specific reporting that responds only to the areas of concern previously identified by the committee consistent with the more moderate streamlining reform explained above.

The declared advantages of an amalgamated treaty body are even greater than that of the consolidation of reports. A single treaty body could be more efficient by removing duplication between committees and should solve or reduce conflicts in supervision by developing consistent human rights jurisprudence (Brook 1995: 467). Such a committee monitoring compliance on all human rights issues would be able to emphasise the interdependence of civil, political, economic, social and cultural rights and stress the indivisibility and lack of hierarchy between all human rights (Report of the Secretary-General 1997: 17). Moreover, the unified committee could apply the whole broad spectrum of international human rights law corpus juris, rather than being restricted to the norms stated in the constitutive instrument (Meron 1982: 774). By focusing on one body, the importance and visibility of the human rights treaty work could be enhanced within the UN and externally, aiding the transparency of decision making (Mingst & Karns 2000: 161). Nevertheless, the proposal to consolidate the treaty bodies has enormous practical difficulties, such as finding the necessary financial resources and formulating a viable methodology given the problem that not all states have ratified the same range of conventions (Evatt 2000: 466; Report of the Secretary-General 1997: 15).

Reduced diversity: lowest common dominator

Despite some anticipated efficiency gains, perhaps the greatest threat posed by the more radical consolidation proposals is loss of the system’s current diversity and specialised focus on specific human rights issues. Single reports and a single committee might symbolically emphasise the interdependence of all human rights, but it is my fear that in practice certain human rights would be neglected. While it is clear that the current regime is characterised by a degree of duplication, critics immediately cite inefficiency concerns without considering whether an element of overlap has benefits. Reproduction is undesirable from an efficiency perspective, however it may actually lead to a greater observance of human rights by states (Keith 1999: 99). Alston’s opening quote to this essay is crucial in this respect; efficiency cannot be the sole criterion of a human rights monitoring regime. At the risk of overlap or conflict, the multiplicity of human rights norms espoused by the committees ensures that protection of human rights is comprehensive across the field of human rights. For example, although both the CEDAW Committee and the CRC Committee duplicate monitoring of state compliance with respect to the ‘girl child’, the former analyses the situation from a women’s vantage point and the latter in the context of children’s rights (Helfer & Slaughter 1997: 298). The diversity of perspectives brought to bear on any states’ human rights performance provides a more comprehensive scrutiny of state policies than any one consolidated committee could hope for (Scott 2000: 404). As such, the mandates and powers of the various committees remain sufficiently different, and human rights violations sufficiently widespread, that it is premature to promote a merged committee under the rubric of greater efficiency (Hannum 1994: 826). Such overzealous efforts to rationalise the existing array of committees by creating a combined body is likely to cause the most favourable procedures and most progressive of standards to be normalised with the least far-reaching ones (Meron 1982: 777). In this respect, one of the most damning consequences of a uniform committee body is the likely ‘lowest common dominator’ effect, where specialisation within the different human rights areas is minimised. The unification of treaty bodies is likely to jeopardise the variety of expertise and experience represented in the current specialised committee structure (Report of the Secretary-General 1997: 18).

In any event, the more moderate streamlining proposals are beginning to be adopted by committees and should be supported. They are capable of achieving the necessary degree of consistency between instruments without the need to sacrifice the current diversity of the system. Reports by states to other treaty committees and their comments are now available to all committees and some, in particular the Human Rights Committee, share information with the other committees and indeed receive information from specialised agencies (Evatt 1998: 140). More significant interaction between committees, the development of uniform procedures and a jurisprudence database should be promoted to guarantee uniformity of treaty interpretation especially (Tistounet 2000:400).

With respect to the other consolidation reform, the unification of reporting requirements is likely to be similarly deleterious to the functioning of the treaty based mechanisms. To require states to cover all distinct areas of human rights issues in the one report will inevitably result in a general and unfocused submission (Fitzpatrick 1994: 82). Such a report is not likely to be comprehensive even if compiled in good faith and would struggle to contain as much information on distinct policies as compiled under separate reports. More importantly, the submission of a single report risks diluting important issues and neglecting adequate attention to often marginalised issues such as children’s or women’s rights (Report of the Secretary-General 1997: 15). Indeed, instead of unifying reports in the hope of gaining more information and reducing duplication, committees should be empowered to more formally utilise non-government organisations (NGOs).[25] NGOs can contribute significant information on state policies to committees when that state is being obstinate and can also play a crucial synthesising role between committees to aid co-ordination.

Potential for abuse by states: reduced commitment

The consolidation reforms are inherently flawed in another aspect. They are certain to be welcomed by states, particularly those that violate human rights most egregiously, as a cloak to diminish their responsibilities under the system and to decrease scrutiny of their compliance with human rights’ obligations. Streamlining and avoiding duplication can be thinly veiled euphemisms for lowering standards and limiting scrutiny (Bayefsky1997: 82). Alston notes ‘the reluctance of all governments to facilitate the emergence of a truly effective international human rights monitoring regime...’ (Alston 2000: 522). States are not inclined to encourage more rigorous scrutiny of their own human rights record and the more radical streamlining reforms will provide the perfect opportunity for states to downgrade the requirements of the human rights system (Crawford 2000:11). A piquant example of the alarming potential for states to betray streamlining reforms is the recent Australian review of the UN human rights treaty system mentioned above (Garran 2000: 1). The Australian government clearly sought to limit the UN’s scrutiny of Australia’s human rights performance after several critical comments by the CERD and Human Rights Committees in relation to treatment of indigenous Australians and asylum seekers in particular (CERD Committee 2000; Human Rights Committee 2000). Yet, the results of the review were couched in terms of improving the effectiveness of the committees and spoke of the government taking strong measures to improve co-ordination between committees (Minister for Foreign Affairs, Attorney-General and Minister for Immigration and Multicultural Affairs 2000b).[26] Given the refusal by Australia to co-operate further with the committees after their critical reports and the refusal to ratify the CEDAW Optional Protocol, it is evident that the government was utilising the language of streamlining reform to weaken the existing implementation system rather than improve its efficacy (Meron 1982: 778). If a state such as Australia is already using streamlining proposals as a banner to hide a partial withdrawal from the system, then the potential for abuse by other more tyrannical states is even higher.

With consolidation reforms on the agenda, states can utilise the legitimate and apparently supportive language of reform and avoidance of duplication to diminish their reporting requirements (Alston & Steiner 2000: 775). Merging all reports into one reduces the responsibility of a state to account for its actions to international scrutiny. It also intensifies the detrimental impact of an overdue report and further rewards those states that merely recite an impeccable compliance with treaty obligations (Robinson 1998: 46). One of the attractions of rationalisation, namely reducing the burden on the committees, could therefore be undermined by maximising the scope for abuse of the system by states. As such, radical consolidation reforms place too much emphasis on diminishing the burden of reporting for states and increasing system efficiency at the expense of safeguarding the integrity and principles of the human rights treaty system (Bayesfsky 1994: 262).

Conclusion

In the post-Cold War era and with the expansion of democratisation and globalisation, it should now be possible for the human rights regime to develop more effective techniques of monitoring state behaviour for the future (Williams 1999: 156). However, such a paradigm should be predicated not on radical streamlining, but on increasing current co-ordination attempts within the present system. Moderate streamlining reforms will address and allay the apprehension regarding duplication, inconsistency and excessive state burden. State reporting should continue to become more issue-specific and tailored to individual country situations, with improved cross-referencing between reports to avoid duplication. If states are genuine about improving the treaty system they should perceive their international contracts more seriously by submitting timely and honest reports and even increasing funding levels. Committees themselves should also become more familiar with each other by increasing joint meetings and sharing more information, perhaps by establishing a central documentation centre and jurisprudence database (Alston 1997: 21). The current structure is not inherently incapable of being consistent and integrated. Coherence of approach by the committees is certainly imperative and discrepancies should be avoided, especially with respect to interpretation of treaty obligations, as it is the credibility of the entire treaty body system which is ultimately at stake.

Given the limitations of the treaty system, the problems facing the regime should not be overstated. Particularly in relation to duplication and overlap, focus should be on actual practice, not potential conflict and an acceptance should grow that a degree of reproduction is probably positive from a perspective of state scrutiny. Streamlining reforms are instinctively attractive proposals, but consolidation of treaties or reports would be retrogressive. Radical reform will not be used by states to strengthen the system for ‘respectable axioms frequently conceal the pressure [by states] on the UN human rights system to desist from examination of country-specific situations’ (Bayesfsky 1997: 83). Ultimately, a more effective UN human rights system is dependent on states being genuine in their commitment to meaningful reform, which should entail not thinly veiled attempts to downgrade the importance of the system, but a better fulfilment of state responsibilities.

References

Australian Government Publications

Department of Foreign Affairs and Trade, Human Rights Manual, Canberra, 1998

Minister for Foreign Affairs, Attorney-General and Minister for Immigration and Multicultural Affairs, Improving the Effectiveness of United Nations Committees, Press Release 29 August 2000b.

Minister for Foreign Affairs, Attorney-General and Minister for Immigration and Multicultural Affairs, Australian Initiative to Improve the Effectiveness of the UN Treaty Committees, Press Release 5 April 2001a.

Minister for Foreign Affairs, Attorney-General and Minister for Immigration and Multicultural Affairs, Australia to Host Human Rights Workshop, Press Release FA 95, 25 June 2001b.

Minister for Foreign Affairs, Government to Review UN Treaty Committees, Press Release 30 March 2000a.

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Alston P (Independent Expert), Effective Functioning of Bodies Established Pursuant to United Nations Human Rights Instruments: Interim Report on Enhancing the Long-Term Effectiveness of the United Nations Human Rights Treaty System World Conference on Human Rights, 1993, UN Doc A/CONF.157/PC/62/Add.11/Rev.1 (‘Interim Report’)

Alston P (Independent Expert), Effective Functioning of Bodies Established Pursuant to United Nations Human Rights Instruments: Final Report on Enhancing the Long-Term Effectiveness of the United Nations Human Rights Treaty System Commission on Human Rights 1997 (54th Session), UN Doc E/CN.4/1997/74 (‘Final Report’)

Alston P (Independent Expert), Effective Implementation of International Instruments on Human Rights, Including Reporting Obligations under International Instruments on Human Rights Commission on Human Rights 1989 (46th Session), UN Doc A/44/1989 (‘Initial Report’)

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Charter of the United Nations, signed 26 June 1945 (entered into force 24 October 1945)

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Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) (‘CERD’)

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) (‘CERD’)

Convention on the Rights of the Child, opened for signature 20 November 1989, 28 ILM 1448 (entered into force 2 September 1990) (‘CROC’).

Effective Implementation of International Instruments on Human Rights, Including Reporting Obligations under International Instruments on Human Rights Commission on Human Rights Res 1996/22 (52nd Session) UN Doc E/CN.4/1996/22

International Convention on the Rights of Migrant Workers and the Members of their Families, opened for signature 18 December 1990, 30 ILM 1517 (‘Migrant Workers Convention’).

International Convention on the Suppression and Punishment of the Crime of Apartheid, opened for signature 30 November 1973, 1015 UNTS 243 (entered into force 18 July 1976).

International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171, 6 ILM 368 (entered into force 23 March 1976) (‘ICCPR’).

International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’).

Human Rights Committee, Concluding Observations to Third and Fourth Periodic Reports by Australia, UN Doc CCPR/CO/69/Aus, (28 July 2000).

Human Rights Committee, Concluding Observations to Third and Fourth Periodic Reports by Australia, UN Doc CCPR/CO/69/Aus, (28 July 2000).

Report of the Fifth Meeting of Persons Chairing the Human Rights Treaty Bodies, Commission on Human Rights 1994 (51st Session), UN Doc A/49/537, 5.

Report of the Secretary-General, ‘Comments received by the Government of Canada’ in Effective Functioning of Bodies Established Pursuant to United Nations Human Rights Instruments: Effective Implementation of International Instruments on Human Rights, Including Reporting Obligations under International Instruments on Human Rights, Commission on Human Rights (53rd Session), UN Doc E/CN.4/1997/73, 15.

Report of the Secretary-General, Effective Functioning of Bodies Established Pursuant to United Nations Human Rights Instruments: Effective Implementation of International Instruments on Human Rights, Including Reporting Obligations under International Instruments on Human Rights, Commission on Human Rights (53rd Session), UN Doc E/CN.4/1997/73.

Report of the Secretary-General, Effective Functioning of Bodies Established Pursuant to United Nations Human Rights Instruments, Commission on Human Rights (53rd Session), UN Doc E/CN.4/1998/85.

United Nations, The High Commissioner for Human Rights: An Introduction 1996.

United Nations, The United Nations and Human Rights 1968.

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Alston P, ‘Individual Complaints: Historic Perspective and the International Covenant on Economic, Social and Cultural Rights’ in Pritchard, Sarah (ed) Indigenous Peoples, the United Nations and Human Rights, Federation Press, Sydney, 1998

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Alston P, ‘Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 332

Alston P (ed), The International Library of Essays in Law & Legal Theory: Human Rights Law, New York University Press, New York, 1996

Alston P (ed), The United Nations and Human Rights: A Critical Appraisal, Oxford University Press, Oxford, 1992

Alston P and Crawford J (eds), The Future of UN Human Rights Treaty Monitoring, Cambridge University Press, Cambridge, 2000

Alston P and Steiner H (eds) International Human Rights in Context: Law, Politics, Morals (2nd ed), Oxford University Press, Oxford, 2000

Alston, Phillip, ‘Beyond “Them” and “Us”: Putting Treaty Body Reform in Context’ in Alston P and Crawford J (eds), The Future of UN Human Rights Treaty Monitoring Cambridge University Press, Cambridge, 2000

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Charlesworth H ‘Individual Complaints: An Overview and Admissibility Requirements’ in Pritchard S (ed), Indigenous Peoples, the United Nations and Human Rights, Federation Press, Sydney, 1998

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[*] University of Melbourne.B.A(Hons)/ LLB(Hons) University of Melbourne The essay on which this paper is based received the 2000 Alan Missen Foundation Essay Prize for the Most Outstanding Essay on Civil Liberties in Australia at the University of Melbourne.

I would like to acknowledge the advice and assistance I received on a draft of this paper by Dr Dianne Otto, Senior Lecturer, Law Faculty, University of Melbourne. I would also like to acknowledge the editorial assistance I received from members of the Australian Journal of Human Rights.

[1] The international human rights system also includes regional human rights regimes, international customary law, non-government organisations, inter-governmental organisations and, depending on definition, institutions with a more remote connection to core UN activities such as the various specialised Agencies.

[2] For example, Charter based organs tend to have broader mandates, universal membership and stronger methods of enforcement. See Alston P ‘Appraising the United Nations Human Rights Regime’ in Alston 1992:12.

[3] Although such proposals for reform seem constructive, I address the potential for abuse below.

[4] See also Mathews 2002:1.

[5] In addition, a committee used to monitor the International Convention on the Suppression and Punishment of the Crime of Apartheid, which Australia was not a party to and the operation of which has been suspended. A committee will also be established to monitor the International Convention on the Rights of Migrant Workers and the Members of their Families, when that Convention enters into force: Charlesworth 1998: 66.

[6] This Committee monitors compliance of the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’).

[7] This Committee monitors compliance of the International Covenant on Civil and Political Rights (‘ICCPR’).

[8] This Committee monitors compliance of the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’).

[9] This Committee monitors compliance of the Convention on the Elimination of All Forms of Discrimination Against Women (‘CERD’).

[10] This Committee monitors compliance of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (‘CAT’).

[11] This Committee monitors compliance of the Convention on the Rights of the Child (‘CROC’).

[12] Note that the ICESCR Committee is the only treaty body not expressly established by a specific provision in the relevant instrument which it oversees; its mandate derives from ECOSOC. See Alston 1992: 473.

[13] The Optional Protocol establishes this mechanism for the Human Rights Committee, while Article 14 of CERD does so for the CERD Committee and Article 22 of CAT for the CAT Committee. An Optional Protocol for CEDAW has been opened for signature to add an individual complaints mechanism and efforts are underway to draft a similar Optional Protocol for the ICESCR. See Chapman 1996: 27.

[14] Not that this mechanism has never been used. See Pace 1998: 508.

[15] The ICESCR, CEDAW, CERD and Human Rights Committees have the ability to issue general comments. See Strohal 1993: 347.

[16] Unfortunately, it is outside the scope of this paper to provide a greater explanation of the complicated and varied functions of the different committees. It should, however, be briefly noted that in addition to these functions, three committees have special procedures. The CAT Committee has the ability to initiate confidential inquiries about well-founded allegations of torture in a particular state. The CERD Committee has ‘early warning and urgent action procedures’ which enable the Committee to seek information from a state about a particular matter. The Human Rights Committee has the ability to issue ‘interim measure requests’ to prevent irreparable damage being done to a person who is the subject of an individual communication. For greater detail on the functions and structure of the treaty based system and the particularities of each committee see Lewis-Anthony 1992: 41; Charlesworth 1998: 74; Alston 1998: 81; Evatt 1995: 86; Partsch 1992: 339; Opsahl 1992: 369; Jacobson 1992: 444; Byrnes 1992: 509; Alston 1992: 473; Apodaca 1998: 185.

[17] It is outside the scope of this essay to detail the many documented problems with the UN human rights treaty system. Suffice to say that reporting by states under the treaties is most problematic, a vast percentage of reports are overdue, creating an unmanageable backlog of reports. Moreover, delays by the committees in processing reports and communications are chronic. The committees are also constrained severely by a gross lack of time and lack of financial and staff resources. State reports are often superficial and considered a bureaucratic chore, rather than an opportunity to facilitate domestic debate about human rights issues. There are also concerns in relation to inefficient and ineffective procedures adopted by committees, inadequate follow-up on recommendations and the composition of the committees themselves. For a greater explanation of these and more problems see Flood 1998; Frost 1999; Alston 1987. There is also the problem of states parties placing reservations on their treaty obligations, see Baylis 1999.

[18] See Meron 1985; Scott 2000: 404; Alston 1997: 21, 22; Alston 1989: [182-3]; Alston 1993: 15.

[19] As at 1 December 1998, the following number of reports were overdue for each committee: CERD, 390; ICESCR, 134; ICCPR, 145; CEDAW, 245; CAT, 105; CRC, 141. (Crawford 2000: 5).

[20] Some of the states with the most overdue reports, such as Liberia, are only required to report to two committees.

[21] Although most treaties prohibit parallel proceedings before international foray on the same matter, there is not usually a restriction on subsequent proceedings. For example, the individual petition procedure for the Human Rights Committee explicitly permits such a process in Article 5 of the Optional Protocol to the ICCPR, ICCPR, above note 6.

[22] It should, however, be noted that Bayesfsky and Alston espouse paradigmatically opposite opinions on the validity of the basic assumptions underpinning the treaty system. Alston responds to Bayesfsky’s highly critical stance in Alston & Crawford 2000: 501.

[23] For example, instead of establishing a new Committee for the Migrant Workers Convention and creating potential for further duplication, such supervision should be undertaken by one of the current committees Alston 1997: 22. Migrant Workers Convention, above note 11.

[24] It should be noted that Alston and others present a range of additional non-streamlining reforms to the treaty system in an attempt to address other problems. Such reform includes wider use of advisory services by states in the preparation of their reports, improved concluding observations by committees, greater public access to committee documents, committee examinations of situations in states in the absence of an egregiously overdue report and documentation limits (Alston 1997). Peck (1996: 199 suggests that committees should have a fact-finding or investigative power to independently make inquiries about issues within a state. Ramcharan (1995: 213) advocates one regional consolidated treaty body to consider all treaty reports from that region. Schmidt (2000: 488) promotes a simplification of committee procedures including an abolition of consensus decision making. For further reform suggestions see Boerefijn 1995: 766; Chapman 1996: 23.

[25] For cogent discussion on this point see Otto 1996: 107 and Brett 1995: 96.

[26] See also Mathews 2000: 2. For a critical analysis of the Australian government’s attitude towards the UN treaty bodies see Morgan 1999: 55.


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