With three months left of the 67^th session of the General Assembly, the intergovernmental process on treaty body strengthening appears to be reaching a critical juncture. With divergences among key States still wide and the potential for extended absences of some delegations over the summer, it is unclear what will be achieved in the remaining months of the session.

With three months left of the 67^th session of the General Assembly, the intergovernmental process on treaty body strengthening appears to be reaching a critical juncture. With divergences among key States still wide and the potential for extended absences of some delegations over the summer, it is unclear what will be achieved in the remaining months of the session.

Over the last several months the co-facilitators– Iceland and Indonesia – continued the process initiated in July 2012 of consultations among States, holding talks in February, April and May 2013. These consultations were organized around clusters of topics as set out in a series of ‘food for thought’ background papers prepared by the co-facilitators as a basis for discussion.

Recent developments

A significant part of the discussions has focused on improving the efficiency of the treaty bodies’ working methods and there seems to be some consensus emerging on a number of proposals along these lines. The main points of consensus and contention are outlined in Part I of the co-facilitators’ “Way Forward” document. Unfortunately, this focus on efficiency has, to some extent, come at the expense of a focus on effectiveness and how to strengthen the system so as to ensure better realization of rights by rights holders. In that regard, the more difficult aspects have been the questions relating to a shift in the overall framework of the treaty body system, with potential changes to the periodicity of reviews and the need for increased resources front and centre among these.

Most States have balked at various implications of the High Commissioner for Human Rights’ proposal for a five year ‘master calendar’– namely the significant increase in resources required, the scheduling of reviews regardless of reporting, and the shift in the periodicities of reviews from those legally prescribed in some of the treaties.^[1]

Following nearly a year of discussions based on the master calendar, alternative proposals have very recently come to the fore. In April the African Group, led by Egypt, proposed a ‘nimble biennium calendar’ which would require the treaty bodies through OHCHR to submit a biennial request for resources based on current workload. This proposal has been criticized by NGOs and States on the basis that it would subject the entire treaty body system to a political negotiation in the General Assembly’s budgetary committee every two years. This would in all likelihood result in treaty bodies being denied the resources necessary to carry out reviews in the absence of reports and other mandated activities such as the production of general comments. The nimble calendar proposal also does not link resources to ratification and therefore does not address the workload/backlog in a sustainable way.

The co-facilitators recently proposed an ‘opt in calendar’ in Part II of their “Way Forward” document, whereby certain States would opt in to a master calendar. Though States have not had an opportunity to publicly react to this proposal, the chief concerns are the formal institutionalization of two tiered reporting, the concomitant legitimization of non-reporting for those States that do not opt in, and the near impossibility of accurately predicting resource needs. No details have been provided on the periodicity of the master calendar to which the States opting in would bind themselves but based on the reactions to the five year calendar, it is expected the proposal will evolve toward a seven or eight year periodicity. This model would therefore suffer the same flaws as the HCHR’s five year model insofar as it would involve the General Assembly shifting the periodicity legally stipulated by some treaties. Additionally, a seven or eight year periodicity presents concerns in and of itself given the gap between reviews. The need for follow up by the treaty bodies between reports risks eliminating any savings gained from less frequent reviews.

Capacity building (that is, the provision of technical assistance to States to assist them in fulfilling their treaty obligations), is another issue that has become central, though discussions thus far have been thin on details regarding what this would entail. Given the support for capacity building in principle and the prioritisation of this issue by the African and Caribbean groups in particular, it seems this will inevitably be part of any final package, though in what form remains to be seen. The concern at this point is whether capacity building will be overly focused on reporting (as opposed to implementation), whether capacity building will be linked in any way to political commitments regarding increased compliance, and whether savings to be gained from efficiencies and/or new resources will be directed towards capacity building at the expense of other areas of the system badly in need of new funds.

Finally, no institution strengthening process in the UN would be complete without efforts by those States with a regressive agenda to weaken the system. In this case the Cross Regional Group (China, Bolivia, Venezuela, Iran, Cuba, Nicaragua, Pakistan, Russia, Syria, China) led by Russia has put forward a proposal for a code of conduct and ‘ethics council’ for treaty body members. Though these proposals have not gained much traction yet in informal consultations, NGOs and some States are still wary of further efforts in this regard as States move closer to negotiations on an actual text.

Next steps

Much has been invested in this process, including in the Dublin initiative from 2009-2012. Though some stakeholders’ patience may be waning at this juncture, particularly in the face of threats such as the code of conduct, it is crucial that all stakeholders remain engaged and focused on achieving an outcome that actually strengthens the treaty body system.

No clear indication has been given by the co-facilitators on next steps at this stage. It is unclear whether the co-facilitators will bring States together again for additional informal consultations or whether they will soon table a zero draft of a resolution. In the case of a resolution, it is unclear whether the resolution will be a purely procedural text referring to a substantive report and/or extending the process to the next General Assembly session, a substantive text referring to areas of agreement at this stage only, or a substantive text comprehensively addressing all issues under discussion.

Further updates will be posted at http://www.ishr.ch/news/treaty-bodies.

Madeleine Sinclair is Program Manager and Legal Counsel and leads ISHR’s work on treaty bodies in New York