WCAR Think Papers*
A joint
project of Human Rights Documentation Center (HRDC),
International Service for Human Rights (ISHR) and South Asia Human Rights
Documentation Centre (SAHRDC)
WCAR Think Paper X
Any objective assessment of the treaty bodies’ material capacities would have to conclude that the situation is one of dire proportions. It is hackneyed to comment on how the continued gross deprivation of financial resources prevents the treaty bodies from accomplishing their tasks. This is now common knowledge in UN circles.[1] In 1988, Professor Philip Alston was charged with reviewing the long-term functioning of the treaty bodies. In a three-part report, he produced one of the most thorough UN studies to date and, in his conclusions, identified a host of problems in the lack of financial and political support for the committees.[2]
Two particular statements by Professor Alston deserve emphasis here. First, the lack of financial support for the treaty bodies is not simply a feature of the general resource constraints in the UN; it is a political choice:
In part this is a reflection of global budgetary pressures and their impact on the United Nations as a whole. But, more significantly, it reflects the perhaps inevitable, although nonetheless short-sighted and regrettable, reluctance of Governments to provide adequate resources for the development of mechanisms which might be able to monitor their human rights performance more effectively.[3]
Second, what Professor Alston stated five years ago, has proven true today. If one assumes “the existing level of funding is unlikely to be increased in the years ahead, then the current system is simply not sustainable and we will witness a steady diminution in the support available to each treaty body and in the ability of each to function in a meaningful way.”[4]
At the WCAR, there is special reason for the world community to do something about these problems with regard to the Committee on the Elimination of Racial Discrimination (CERD). One objective of the WCAR has been to work towards the universal ratification of the International Convention on the Elimination of Racial Discrimination. Since the General Assembly announced its decision to hold the conference,[5] nine states have signed or ratified the Convention (as of 9 May 2001), and more ratifications are expected before the conference’s opening. These additional members to the Convention will naturally entail greater burdens on CERD. The WCAR, therefore, has a unique responsibility to match the political effort to achieve universality with a commitment to increase funds for the Committee to address the added workload.
Regardless of these newly added strains, the Committee members must be supplied with a professional staff to assist in their duties. In a recent compilation of commentaries on the treaty system,[6] all the experts who studied the capacity problems of the treaty bodies suggest (1) expanding the number of the Secretariat’s professional staff dedicated to the treaty bodies and (2) providing the type of professional staff which would allow the treaty bodies to delegate some of their functions to qualified staff members. CERD Member Michael Banton, for example, suggests equipping the treaty bodies with “a small team of legally-qualified advocates general” to whom the committees could transfers some of their functions.[7] Professor David Harris suggests basically the same solution, modelling it on the Secretariat support for the European Social Charter’s Committee of Independent Experts.[8] Markus Schmidt, a staff member of the Office of High Commissioner for Human Rights, concludes similarly; he discards many proposals that would not work but favours the expansion of junior professional officers to operate in this advisory capacity due to the success of such initiatives in other parts of the UN.[9] Human Rights Committee Member Elizabeth Evatt also lists a number of substantive functions that an expansion of professional staff could cover.[10] The addition of such a professional staff is, in short, a tested and necessary part of the solution.
CERD’s ability to function effectively depends not only on financial and other material support. It also requires political backing. A major problem is that after their periodic reports, some state parties have responded to the sting of the Committee’s criticisms not with constructive attempts to review their internal practices, but with irresponsible attacks on the legitimacy and integrity of the Committee. Consider the recent actions of the government of Australia.
In November 1999, Australia submitted a statement to the General Assembly’s Third Committee praising the work of the treaty bodies and reminding all states that internal human rights issues are the legitimate concern of the international community:
It is the duty of States to promote and protect all human rights and fundamental freedoms. A corollary of this is the acknowledgment by the community of nations that respect for human rights is a legitimate matter of international concern, and not the exclusive preserve of national governments.
The United Nations treaty body system contributes significantly and directly to the protection and promotion of human rights by monitoring implementation of the core human rights treaties; highlighting violations of these treaties and human rights standards; interpreting the rights and obligations contained in the treaties; and encouraging better implementation and compliance through advice to States.[11]
In March 2000, CERD reviewed Australia’s periodic report and provided its usual “concerns and recommendations” for a state party. The Committee drew specific attention to Aboriginal rights, including concerns the Committee had about hot button issues in Australia—(i) the government’s unwillingness to apologize for the state’s earlier policy of forced removal of Aboriginal children from their families and (ii) the racially discriminatory impact of mandatory sentencing laws for minor property offences.[12] Notably, during the proceedings, it was also revealed that for the past two years the Committee had requested the government to visit Australia but had been refused.[13]
Taking the Committee’s concerns as an affront, the Australian government threatened to withdraw from the Convention and announced it would officially review its relations to the treaty system as a whole. Rejecting the Committee’s conclusions, the government questioned the integrity of particular experts on the basis of their national affiliation: Foreign Minister Alexander Downer stated, “People who are critical of the Australian Government need to reflect on this point; do they really think it’s right for a United Nations committee, which includes people from Cuba and from China and Pakistan, to start getting involved in debate about whether the Prime Minister should say sorry or not for the stolen generation . . . . I mean, Australians aren’t going to cop that.”[14]
In August 2000, the government announced that the Cabinet had concluded an internal review of its relation to the treaty bodies and from now on it “will only agree to visits to Australia by treaty committees and requests from the UN Committee [sic] on Human Rights ‘mechanisms’ for the provision of information and to visit where there is a compelling reason to do so.”[15] The government also stated it would “immediately implement a package of measures to improve our continued interaction with UN human rights treaty committees, including … [r]eporting to and representation at treaty committees be based on a more economical and selective approach where appropriate.” The government’s statement also declared that “Australia’s strategic engagement with the treaty committee system” would depend on “the extent to which effective reform occurs”— a matter of course determined by Australia’s vision of reform. Holding little to nothing back, the statement concluded: “The Government believes these steps will ensure that Australia gets a better deal from the UN treaty committees.”[16]
Fortunately, within Australia significant political voices condemned the government’s actions. The Australian Democrats leader Meg Lees, for example, stated: “We've taken our bat and ball and gone home because we’ve had some criticism . . . . Are they such delicate petals that they can’t take legitimate criticism.”[17] In a joint statement, the Labor attorneys-general of four states similarly condemned the national government’s actions.[18] Similar sentiments were echoed by opposition (Labor Party) foreign affairs spokesperson Laurie Brereton. Nonetheless, these statements have not changed the regrettable position taken by the government. Worse yet, the various bureaucratic initiatives the government has designed to further review its relationship to the treaty bodies and to press for international coordination on the issue of “reform” are likely to represent precious Australian dollars that would be better spent on directly supporting the committees’ work.
Aside from these political skirmishes, innovative solutions must be developed to ensure accessibility to the Committee, dissemination of the Committee’s work and promotion of quality and timely state party reports. One solution would be for CERD to hold some sessions in-region. Several commentators have described the difficulty of national-level NGOs to travel to Geneva or New York to address a treaty body during their state’s periodic report. This imposes added burdens for human rights organizations that focus on a number of countries in their region. Also, due to the distant and removed nature of these proceedings, the review of the state party reports have not received adequate attention from the national media within a country. The expense in reporting in Geneva or New York also compromises the nature of the governmental delegation that represents a state party as well as the ability of the state to report at all. Notably, the interest in providing greater access to domestic groups and obtaining increased media attention motivated the Human Rights Committee to hold its review of the United States’ first periodic report in New York, rather than Geneva. CERD—and other treaty bodies—should consider holding sessions “within region” and, at those sessions, reviewing the reports of several states within the region. Treaty bodies that complement each other, such as CERD and CAT, might coordinate their efforts in this regard. In-region sessions would: (1) provide greater access to the treaty body for members of civil society; (2) create the type of publicity around a special event that is necessary to attract media attention; and (3) pressure governments to submit reports if their neighbours are doing the same or if expenses otherwise undermine their ability to do so.
The WCAR constitutes an opportunity for the world community to support CERD in a meaningful fashion. Accordingly, human rights NGOs and similarly minded states can push for the WCAR’s Declaration and Programme of Action to:
1. Endorse creative solutions to promote the publicity and accessibility of the Committee’s work through such measures as in-region state party reports.
2. Commit to increasing resources for the Committee through expansion of professional staff dedicated to serving the treaty bodies and to helping process review of state party reports.
3. Deplore the obstructionist actions of state parties such as threatening to withdraw from the Convention and engaging in a public campaign to undermine the Committee’s legitimacy on account of concerns raised by the Committee.
4. Urge all states to submit to the Committee an open invitation to visit the country such that the Committee is not hampered in its ability to monitor compliance with the Convention.
5. Endorse
expansion of resources to the Office of the High Commissioner for Human Rights
for advisory services and technical assistance to help states in ratifying the
Convention, preparing periodic reports and adjusting domestic legislation to
comply with the Convention.
* The Think Papers series is available at <www.hrdc.net>.
[1] For some of the
detailed concerns the treaty bodies have in trying to operate under these
enormous budgetary constraints see Twelfth Meeting of the Chairpersons, Plan of Action 2000-2004, HRI/MC/2000/4 (5
May 2000) available at <http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/HRI.MC.2000.4.En?OpenDocument>.
[2] See A/44/668; A/CONF.157/PC/62/Add.11/Rev.1; E/CN.4/1997/74.
[3] at para. 11.
[4] Id. ar para. 12.
[5] A/RES/52/111 (12 December 1997).
[6] The Future of UN Human Rights Treaty Monitoring (Philip Alston & James Crawford eds., 2000).
[7] Michael Banton, Decision-taking in the Committee on the Elimination of Racial Discrimination, at 55, 75.
[8] David Harris, Lessons from the Reporting System of the European Social Charter, at 347, 356-57.
[9] Markus Schmidt, Servicing and Financing Human Rights Supervision, at 481, 486-87.
[10] Elizabeth Evatt, Ensuring Effective Supervisory Procedures: The Need for Resources, at 461, 471.
[11] See Statement by Mr Andrew Goledzinowski, Counsellor on behalf of Australia, Canada, New Zealand and Norway, Third Committee (54th Session) - Item 116(a): Human Rights Questions and Implementation of Human Rights Instruments (3 Nov. 1999) <http://www.un.int/australia/Statements/UNGA%2054/Social/991103_thirdhumanrightsreform.htm>.
[12] CERD: State party periodic report -- Australia. 19/04/2000. CERD/C/304/Add.101. (Concluding Observations/Comments), paras. 13 & 16. <http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/eb3df96380faaf97802568ac00544c55?Opendocument>
[13] Simon Mann, UN Body Wants Invitation, Australasian Business Intelligence, 31 Mar. 2000.
[14] Sonny Inbaraj, Rights-Australia: Aboriginals to Protest Racism at Olympics, Inter Press Service, 4 Apr. 2000.
[15] See Joint News Release by Minister for Foreign Affairs Alexander Downer, Attorney-General Daryl Williams and Minister for Immigration and Multicultural Affairs Philip Ruddock, Improving the Effectiveness of United Nations Committees, 29 August 2000, available at <http://law.gov.au/aghome/agnews/2000newsag/joint14_00.htm>.
[16] Ibid.
[17] Mark Riley, Pressure Grows Over UN Attack, The Age, 31 August 2000.
[18] Ibid.