Towards a unified treaty body for monitoring compliance with UN human rights Conventions? legal mechanisms for treaty reform

Human Rights Law Review

Volumn 7, Issue 1, 2007, Pages 225-249

  Bowman, Michael ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34447536850     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngl033     Document Type: Article

References (127)

1. 993 UNTS 3.
2. 999 UNTS 171.
3. 660 UNTS 95.
4. 1249 UNTS 13.
5. 1465 UNTS 85.
6. 1577 UNTS 3.
7. 2220 UNTS 93
8. 11 IHRR 269 (2004).
9. For brief overviews of the present system, see, for example, Mertus, The United Nations and Human Rights (New York: Routledge, 2005) at Chapter 4
10. and the Concept Paper on the High Commissioner's Proposal for a Unified Standing Treaty Body, 22 March 2006, HRI/MC/2006/2 ('Concept Paper').
11. These are, in general, established by the provisions of the treaty itself; the single exception is the ICESCR, where the Committee on Economic, Social and Cultural Rights (CESCR) was stablished by ECOSOC in 1985 under the terms of ECOSOC Res. 1985/17, 28 May 1985, E/RES/1985/17.
12. GA Res. 57/199, 18 December 2002, A/RES/57/199
13. 10 IHRR 595 (2004).
14. For example, the draft International Conventions (i) for the Protection of All Persons from Enforced Disappearance; and (ii) on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities.
15. As to which, see, for example, Buergenthal, 'A Court and Two Consolidated Treaty Bodies', in Bayefsky (ed.), The UN Human Rights Treaty System in the 21st Century (The Hague: Kluwer Law International, 2000) 299
16. and Clapham, 'UN Human Rights Reporting Procedures: An NGO Perspective', in Alston and Crawford (eds), The Future of UN Human Rights Monitoring (Cambridge: Cambridge University Press, 2000) 175.
17. For an overview of these developments, see O'Flaherty and O'Brien, 'Reform of UN Treaty Monitoring Bodies: A Critique of the United Nations Commissioner for Human Rights Concept Paper', (2007) 7 Human Rights Law Review 000.
18. See para. 147, OHCHR, Plan of action submitted by the United Nations High Commissioner for Human Rights, Annex to In larger freedom: Towards development, security and human rights for all, Report of the Secretary-General, 26 May 2005, A/59/2005/Add.3.
19. See Concept Paper, supra n. 8.
20. The Concept Paper addresses these various issues in outline, especially at paras 37-63, ibid.
21. The phenomenon is widely encountered in the environmental field, for example. For discussion see Sands, Principles of International Environmental Law, 2nd edn (Cambridge: Cambridge University Press, 2003) at 205-10.
22. In the human rights field, an example is provided by the ICESCR, as to which see infra Section 3 B.
23. (1992) ILM 822.
24. For discussion see Burhenne-Guilmin and Casey-Lefkowitz, 'The Convention on Biological Diversity: A Hard Won Global Achievement', (1992) 3 Yearbook of International Environmental Law 43 at 44-5.
25. Para. 64, Concept Paper.
26. 1155 UNTS 331.
27. See generally the Commentary accompanying the Draft Articles prepared by the International Law Commission ('ILC Commentary'), (1966) Yearbook of the International Law Commission, Volume II, at 177-274.
28. For early examples, see the decisions of the International Court of Justice in the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, 16
29. and the Fisheries Jurisdiction case, Jurisdiction, ICJ Reports 1974, 3
30. and of the European Court of Human Rights in Golder v UK A18 (1975)
31. (1979-80) 1 EHRR 524.
32. See on this point the views of the Law Officers of the Crown in relation to the interpretation of the Simonstown Agreements, Cmnd 4589, at 5
33. and Aust, Modern Treaty Law and Practice (Cambridge: Cambridge University Press, 2000) at 9-12.
34. The third preambular recital to the Vienna Convention affirms that 'the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognised'.
35. The precedence accorded by the Vienna Convention to consensual solutions may be either expressly incorporated in the articulation of the relevant rule (for example, by the frequently used phrase 'unless the treaty otherwise provides') or recognised implicitly: Thus there is little doubt that the rules contained in Articles 32, and 27 and 46, of the Vienna Convention, regarding respectively the subsidiarity of the travaux préparatoires in the interpretation of treaties, and the non-invocability of provisions of domestic law, may be displaced by agreement between the parties, even though they make no specific reference to the possibility. It is likely, indeed, that only a few rules (such as those concerning ius cogens) are intended to be sacrosanct.
36. See, for example, Article 45, Vienna Convention.
37. It may be noted in this connection that a number of states indicated their opposition to the establishment of a unified treaty monitoring body at a brainstorming meeting on treaty body reform in Liechtenstein (Malbun II) in July 2006.
38. 996 UNTS 245.
39. For discussion, see Bowman, 'The Multilateral Treaty Amendment Process - A Case Study', (1995) 44 International and Comparative Law Quarterly 540.
40. According to the Concept Paper, at para. 6, the 'overarching objective is twofold', namely 'to secure comprehensive and holistic implementation by States parties of the substantive legal obligations in the treaties' and 'to strengthen the level of protection provided to rights-holders at the national level through ensuring scrutiny of implementation by an authoritative, visible and effective system, which is easily accessible to rights-holders'.
41. For explanation and illustration of this point, see infra Section 3.
42. This issue has been a recurrent focus of concern at recent conferences of the principal conventions. Thus, Decision VIII/14 of the Conference of the Parties to the 1992 Biodiversity Convention, National Reporting and the next Global Biodiversity Outlook, March 2006, UNEP/CBD/8/31 at 150, 'underscores the need to reduce the overall reporting burden on Parties, taking into account reporting obligations under other conventions, and other relevant processes' and 'welcomes the initiative' of the Biodiversity Liaison Group, which links the five major treaties, to 'develop common reporting modules for specific themes, where possible and appropriate'.
43. See, for example, Effective Implementation of International Instruments on Human Rights, Including Reporting Obligations under International Instruments on Human Rights, Initial Report of the Secretary-General's Independent Expert, Mr Philip Alston, 8 November 1989, A/44/668, at paras 36-42
44. and Concept Paper, paras 15-7. Note that this consideration seems even to have surfaced in the text of relevant legal instruments: For example, Article 17(3), ICESCR.
45. Savings achieved through rationalisation could, for example, be offset by the proposal to move to a committee constituted on a full-time basis, as opposed to part-time as at present: See the Concept Paper at paras 27, 32 and 34.
46. It is by no means uncommon, for example, for amendments to acquire the approval of two-thirds of the Contracting Parties for their initial adoption, and then fail to attain subsequent acceptance by a similar proportion for their entry into force.
47. For information regarding the current status of IMO treaties, see the website of the organisation, available at: www.imo.org.
48. UNTS 27.
49. UNTS 133. The amendments were concluded in 1971, 1975, 1979, 1983 and 1995.
50. The advantage of entry into force on a predetermined date, rather than one which is dependent upon the vagaries of the occurrence of acceptance by states, is in itself a major advantage of the new system, especially in the shipping context.
51. For discussion of this matter, see Adede, 'Amendment Procedures for Conventions with Technical Annexes: The IMCO Experience', (1977) 17 Virginia Journal of International Law 201. Note that the 1966 Convention incorporated a 'half-way house' approach to tacit amendment, Article 29(3) providing that, once acceptances had been deposited by two-thirds of the parties, the amendment would become effective not only for them, but for all the remaining parties who did not expressly opt out. Unfortunately, the first of these hurdles was never overcome.
52. UNTS 2, 1185 UNTS 2 (the English language version of the text can be found in the former).
53. Most have attracted no opposition at all. A number have attracted a single objection, while the 2004 (Chapter V) amendments, uniquely it seems, attracted three. Almost all of these opt-outs, however, have been purely temporary, i.e. designed simply to accord the state in question more time to make the necessary adjustments to its national legislation.
54. IMO Doc. HSSC/CONF/12. In force 3 February 2000.
55. For discussion of this point, with reference to notable examples, see Sands, supra n. 17, especially at 8-9.
56. See para. 19, Concept Paper.
57. For examples in relation to the Human Rights Committee which monitors the ICCPR, see Steiner and Alston, International Human Rights in Context, 2nd edn (Oxford: Oxford University Press, 2000) at Chapter 9.
58. Now relatively common in environmental treaties, the idea of a funding mechanism was introduced almost by chance into the field by the 1972 World Heritage Convention, 1972 UNJYB 89, principally, perhaps, in consequence of that Convention's dual focus, embracing the preservation of cultural, as well as natural, sites.
59. See Summary Records of the 16th Session of the International Law Commission, 744th-747th and 752nd-754th meetings, (1964) Yearbook of the International Law Commission, Volume I at 132-57 and 184-204, especially at 136, 152 and 194.
60. Article 41, Vienna Convention.
61. Actually, the wording asserts that the modification must not 'relate to a provision, derogation from which is essential to the effective execution of the object and purpose of the treaty' (emphasis added), but it is difficult to believe that a subset of parties is thereby disentitled from taking action to enhance that object and purpose. In accordance with the rules it establishes, the Vienna Convention should be interpreted in good faith and in the light of its own object and purpose.
62. Article 26, CEDAW and Article 23, ICERD provide: '1. A request for the revision of the present Convention may be made at any time by any State Party by means of a notification in writing addressed to the Secretary-General of the United Nations. 2. The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such a request.'
63. That is, they have required acceptance by two-thirds of the contracting parties: See infra n. 57 and accompanying text.
64. For the relevant provisions, see respectively Article 29, ICESCR; Article 51, ICCPR; Article 29, CAT: Article 50, CRC; and Article 90, CMW.
65. CMW only allows for this possibility after the Convention has been in force for five years.
66. CAT, CRC and CMW impose a time-limit of four months for the process of eliciting support.
67. As noted earlier, this also reflects the requirement actually imposed in relation to agreed amendments to CERD and CEDAW. Note that the reference to a specified fraction of the contracting parties constitutes a formula that has generated significant difficulties of interpretation in other areas: See Bowman, supra n. 30, especially at 550-7.
68. This is expressly provided in each case, but also reflects the residual rule established under Article 40(4), Vienna Convention. As between those which have, and those which have not, accepted the amendment, the unamended version of the text prevails: See Articles 30(4) and 40(4), Vienna Convention.
69. See infra Section 3 of this article.
70. For up-to-date information on these matters generally, see the website of the UN High Commissioner for Human Rights, available at: www.ohcr.org/ english/countries/ratification/1.htm.
71. December 1995, CRC-SP-1995-L.1-Rev.1; GA Res. 50/155, 21 December 1995, A/RES/50/155.
72. September 1992, CAT-SP-1992-L.1
73. GA Res. 47/111, 16 December 1992, A/RES/47/111. As of 19 September 2006 there are 27 acceptances and, with the current number of states parties to CAT at 142, 95 acceptances are required for the amendment to enter into force.
74. January 1992, CERD/sp/43
75. GA Res. 47/111, 16 December 1992, A/RES/47/111. As of 19 September 2006 there are 27 acceptances and, with the current number of states parties to ICERD at 172, 115 acceptances are required for the amendment to enter into force.
76. November 1995, CEDAW/SF/1995/2
77. GA Res. 50/202, 22 December 1995, A/RES/50/2002. As of 19 September 2006 there are 47 acceptances and, with the current number of states parties to CEDAW at 184, 123 acceptances are required for the amendment to come into force.
78. See supra n. 53 and 57 and accompanying text.
79. For example, individual states that were parties to each of the treaties in question might through oversight ratify the amendments to some but not all of them.
80. See paras 21-3, Concept Paper.
81. See supra n. 58 and accompanying text.
82. Supra n. 9.
83. Scheinin, 'The Proposed Optional Protocol to the Covenant on Economic, Social and Cultural Rights: A Blueprint for UN Human Rights Treaty Body Reform - Without Amending the Existing Treaties', (2006) 6 Human Rights Law Review 131 at 134.
84. In addition to those mentioned by the author himself, consideration might need to be given, for example, to the admissibility and validity of an objection by any state party to the ICCPR that was not also party to the ICESCR; or that the proposed change might undermine the capacity of the HRC effectively to perform its functions under the former instrument.
85. Part IV, ICESCR should be read in the light of Chapter X, UN Charter, and in particular Article 68.
86. See paras 19-20, Concept Paper.
87. Scheinin, supra n. 70 at 135.
88. Ibid.
89. This reflects a standard criterion of eligibility for membership.
90. Apart from dispensing with the need for subsequent notifications to the depositary, it would also side-step the need for General Assembly approval, which is a requirement in several cases.
91. To the extent that it is valid, this argument might equally be applicable to the previously discussed possibility of instituting the desired reforms by multiple resolutions of the meetings of the parties to the various conventions.
92. See ILC Commentary at 232-33.
93. See generally on this point Rosenne, The Law of Treaties: A Guide to the Legislative History of the Vienna Convention (Leiden: A.W. Sijthoff, 1970) at 247-9
94. and Wetzel and Rauschning (eds), The Vienna Convention on the Law of Treaties: Travaux Préparatoires (Frankfurt am Main: Alfred Metzner Verlag GmbH, 1978) at 304-9.
95. See Interpretation of Article 3, paragraph 2 of the Treaty of Lausanne, Advisory Opinion of 21 November 1925, PCIJ, Series B12 at 24. There is no doubt that that remains a legitimate part of its function: See the ILC Commentary at 221-2.
96. See, for example Temple of Preah Vihear, Merits, Judgment, ICJ Reports 1962, 6
97. Legal Consequences, supra n. 20
98. Taba award case (1988) 80 ILR 226
99. Eritrea-Ethiopia Boundary Commission (Merits), 13 April 2002, text available from the website of the Permanent Court of Arbitration, available at: www.pca-cpa.org. Note, in particular, the statement of the Permanent Court of Arbitration in the last of these, at para. 3.8, that 'the effect of subsequent conduct may be so clear in relation to matters that appear to be the subject of a given treaty that the application of an otherwise pertinent treaty provision may be varied, or even cease to control the situation, regardless of its original meaning'.
100. See, for example, Merrills, The Development of International Law by the European Court of Human Rights, 2nd edn (Manchester: Manchester University Press, 1993) at Chapter 4
101. and Mowbray, 'The Creativity of the European Court of Human Rights', (2005) 5 Human Rights Law Review 57.
102. See ILC Commentary at 221-2.
103. Misc 12 (1989), Cm 774; (1988) 42 Nuclear Law Bulletin 56.
104. For the 1960 Convention, see 956 UNTS 251 and,
105. for the 1963 Convention, 1063 UNTS 265.
106. For example, Articles 36(5) and 37, Statute of the International Court of Justice, which substitute references in earlier treaties and declarations to the old Permanent Court of International Justice with references to its successor.
107. As in the case of protocols to the nuclear liability and maritime transport treaties discussed earlier.
108. See Articles 11 and 12, Vienna Convention.
109. See, for example, Article 2(2), Protocol to the 1926 Slavery Convention 1953, 182 UNTS 51.
110. See, for example, Article 9(2)(a), Ramsar Convention, supra n. 29; Articles 12 and 13, European Convention on Spectator Violence and Misbehaviour at Sports Events and in particular Football Matches 1985, ETS No. 120
111. ILM 1566; and Article 7, Agreement on the Resolution of Practical Problems with respect to Deep Seabed Mining Areas 1987, (1987) 26 ILM 1505.
112. Particular care should be taken in that regard to avoid the imposition of additional financial commitments: Thus, if any mechanism of financial support were to be established, as tentatively suggested earlier, it should probably be resourced on a voluntary basis.
113. Each of the treaties indicated in n. 90 makes such provision.
114. Many amending protocols do, of course, require acceptance by all parties to the parent convention for entry into force: For example, those effecting procedural amendments to the European Convention on Human Rights.
115. Article 27, CEDAW; Article 27, CAT; Article 49, CRC; and Article 87, CMW.
116. Specifically 27 (Article 19, ICERD) and 35 (Article 27, ICESCR and Article 49, ICCPR).
117. UNTS 209. A precursor to this procedure had operated purely informally for some years.
118. For discussion of this procedure, including the circumstances of its adoption, see Jen, 'The Convention on the Conservation of European Wildlife and Natural Habitats (Bern 1979): Procedures of Application in Practice', (1999) 2 Journal of International Wildlife Law and Policy 224, especially at 233-5.
119. UNTS 194.
120. ETS No. 142.
121. This was achieved by a decision of the Committee of Ministers of the Council of Europe taken at the 476th Meeting of the Ministers' Deputies in December 1991.
122. Article 8, Protocol Amending the European Social Charter. As of September 2006, five ratifications are still required.
123. ICJ Reports 1950, 128.
124. The situation would be broadly analogous to an attempt to apply the 'tacit' amendment procedure of the 1974 Safety of Life at Sea Convention, discussed in Section 2 earlier, to the amendment of its 1960 predecessor.
125. For examples of amendment provisions illustrating these various possibilities, see Article 20, Food and Agricultural Organisation Constitution 1945, UKTS 47(1946), Cmd 6955
126. Article 13, United Nations Educational, Scientific and Cultural Organisation Constitution 1945, 4 UNTS 275
127. and Article 52, Convention on the International Maritime Organization 1948, 289 UNTS 48.