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

^[*] 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.