Human Rights Indicators for Assessing State Compliance with International Human Rights

Nordic Journal of International Law

Volumn 77, Issue 1-2, 2008, Pages 23-49

  De Beco, Gauthier ^a  

^a UNIVERSITÉ CATHOLIQUE DE LOUVAIN   (Belgium)

Author keywords

Compliance; Human rights indicators; International human rights; States

Indexed keywords

EID: 42949098805     PISSN: 09027351     EISSN: 15718107     Source Type: Journal    
DOI: 10.1163/090273508X290681     Document Type: Article

References (122)

1. M. Green, 'What We Talk About When We Talk About Indicators: Current Approaches to Human Rights Assessment', 23 Human Rights Quarterly (2001) p. 1065.
2. OHCHR, Report on Indicators for Monitoring Compliance with International Human Rights Instruments, (Report presented at the 18th meeting of chairpersons of the human rights treaty bodies and the 5th inter-committee of the human rights treaty bodies) 2006, HRI/MC/2006/7, para. 7 (OHCHR Report).
3. See also R. Malhotra and N. Fasel, 'Indicators for Monitoring the Implementation of Human Rights - A Conceptual Framework', (Background paper prepared for the OHCHR expert consultation on indicators for monitoring compliance with international human rights instruments, Geneva, 29 August 2005) [unpublished], on file with the authors.
4. P. Hunt, Interim Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, 2003, A/58/427, para. 10.
5. W. Clifford and C. Rixford, 'Lessons Learned from the History of Social Indicators', (Redefining Progress Publication, Los Angeles, 1998).
6. See Committee on Economic, Social and Cultural Rights, General Comment No 18, The Right to Work (art. 6), 2005, E/C.12/GC/18, paras. 31 (c) and 46-47;
7. Committee on Economic, Social and Cultural Rights, General Comment No 15, The Right to Water (art. 11-12), 2002, E/C.12/2002/11, para. 54;
8. Committee on Economic, Social and Cultural Rights, General Comment No 14, The Right to the Highest Attainable Standard of Health (art. 12), 2000, E/C. 12/2000/4, paras. 57-58;
9. Committee on Economic, Social and Cultural Rights, General Comment No 13, The Right to Education (art. 13), 1999, E/C.12/1999/10, para. 52;
10. Committee on Economic, Social and Cultural Rights, General Comment No 12, The Right to Adequate Food (art. 11), 1999, E/C.12/1999/5, para. 29;
11. Committee on the Rights of the Child, General Comment No 7, Implementing Child Rights in Early Childhood 2006, CRC/C/GC/7, para. 39;
12. Committee on the Rights of the Child General, General Comment No 5, General Measures of Implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), 2003, CRC/GC/2003/5, para. 48.
13. See P. Hunt, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, 2004, A/59/422, paras. 59-84;
14. Hunt, supra note 3, paras. 5-37.
15. See OHCHR Report, supra note 2. The four human rights for which the OHCHR developed indicators are the right to life, the right to judicial review of detention, the right to food and the right to health. More recently, the Inter-American Commission on Human Rights developed an indicators model for assessing progress in the realisation of the rights enshrined in the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) based on the framework established by the OHCHR.
16. See Inter-American Commission on Human Rights, Guidelines for Preparation of Progress Indicators in the Area of Economic, Social, and Cultural Rights (OAS, Washington, 2007), 〈www.cidh.org/pdf%20files/ Guideline%20october%202007%20eng.pdf〉, visited on 7 November 2007.
17. A. Chapman, 'The Status of Efforts to Monitor Economic, Social and Cultural Rights', in A. Minkler and S. and Hertel (eds.), Economic Rights: Conceptual, Measurement, and Policy Issues (Cambridge University Press, Cambridge, 2007) p. 161.
18. N. Thede, 'Human Rights and Statistics: Some Reflections on the No-man's-land between Concept and Indicator', 18 Statistical Journal of the United Nations (2001) ECE p. 268.
19. United Nations Housing Rights Programme, Working Paper No 1. Monitoring Housing Rights. Background Paper for the 2003 Expert Group meeting on Housing Rights Monitoring (UN-HABITAT and OHCHR, Nairobi, 2003).
20. See also M. Kothari, Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, 2007, A/HRC/4/18, paras. 4-7.
21. United Nations Housing Rights Programme, ibid., Annex 1.
22. Malhotra and Fasel, supra note 2, pp. 7-8.
23. See R. Malhotra and N. Fasel, 'Quantitative Human Rights Indicators - A Survey of Major Initiatives', (Discussion paper presented at the Turku Expert Meeting on Human Rights Indicators, Turku/Åbo, 10-13 March 2005) p. 17, 〈www.abo.fi/instut/imr/research/seminars/indicators/ Background.doc〉, visited on 7 November 2007.
24. T. Hammarberg, 'Searching the Truth: The Need to Monitor Human Rights with Relevant and Reliable Means', 18 Statistical Journal of the United Nations ECE (2001) p. 136.
25. See UNDP, Human Development Report 2000 (New York, Oxford University Press, 2000) p. 91.
26. Inter-American Commission on Human Rights, supra note 7, paras. 15-16.
27. T. Landman and J. Häuserman, 'Map-making and Analysis of the Main International Initiatives on Developing Indicators on Democracy and Good Governance', (Paper presented at the Turku Expert Meeting on Human Rights Indicators, Turku/Åbo, 10-13 March 2005) p. 21, 〈www.abo.fi/instut/ imr/research/seminars/indicators/final-report.pdf〉, visited on 7 November 2007.
28. UNIFEM, Progress of the World'Women 2002. Gender Equality and the Millennium Goals, Vol. 2, UNIFEM Biennial Report (UN, New York, 2002) p. 60.
29. See UN, The UN Common Understanding on a Human Rights-Based Approach to Development Cooperation, 2003, 〈www.undp.org/governance/ docs/HR_Guides_CommonUnderstanding.pdf〉, visited on 7 November 2007.
30. E. Filmer-Wilson, An Introduction to the Use of Human Rights Indicators for Development Programmes', 24 Netherlands Quarterly of Human Rights (2006) p. 156.
31. Landman and Häuserman, supra note 17, pp. 18-19 and 35;
32. K. Tomasevski, 'Indicators', in A. Eide et al (eds), Economic, Social and Cultural Rights (Martinus Nijhoff Publishers, Dordrecht/ Boston/London, 2001) p. 391.
33. UNDP, supra note 15, p. 31.
34. Human rights treaties provide many grounds of discriminations. While Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) prohibits discriminations in the application of the Convention on the bases of race, colour or national or ethnic origin, Article 2(2) of the ICESCR and Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) do so for race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In addition, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) prohibits discrimination between men and women, and the Convention on the Rights of the Child (CRC) between children as such. However, while most of these grounds refer to easily identifiable categories, some of them, such as ethnicity, are based on less apparent criteria and must therefore be handled with care.
35. See OHCHR Report, supra note 2, para. 27.
36. United Nations Housing Rights Programme, Report of the Expert Group Meeting on Housing Rights Monitoring (Geneva, UN-HABITAT and OHCHR, 2003) p. 6.
37. V. Wagner and M. Novak, 'Monitoring the Protection of Human Rights in the European Union: An Evaluation of Mechanisms and Tools', (Reflexive Governance in the Public Interest: Fundamental Rights. Working paper series, REFGOV-FR-9) p. 77, 〈refgov.cpdr.ucl.ac.be/?go=publications〉, visited on 7 November 2007.
38. A. Eide, 'The Right to an Adequate Standard of Living Including the Right to Food', in Eide et al, supra note 21, pp. 133 and 141.
39. Regarding economic, social and cultural rights, the obligations provided for in Article 2(2) and 3 of the ICESCR, which relate to non-discrimination, are, in contrast to those obligations falling under Article 2(1) of the Covenant, not subject to progressive realisation according to a state's maximum available resources. In addition, Article 26 of the ICCPR, which also prohibits discrimination, can be relied upon autonomously from the other provisions of the Covenant - which means that no violation of them is required to establish its violation - and is moreover not limited in scope to the rights protected by that Covenant. See Human Rights Committee, General Comment No 18: Non-discrimination, 1989, HRI/GEN/1/Rev.6 146, at para. 12. Finally, ICERD, CEDAW and CRC apply in the same way to both civil and political and economic, social and cultural rights.
40. A. Chapman, A 'Violations Approach' for Monitoring the International Covenant on Economic, Social and Cultural Rights', 18 Human Rights Quarterly (1996) p. 39.
41. See also A. Chapman and S. Russell, 'Introduction', in A. Chapman and S. Russell (eds), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Intersentia, Antwerp, 2002) p. 6.
42. It is also possible to consider violations and enjoyment approaches to human rights as, respectively, the positive and negative dimensions of human rights. See T. Landman, 'The Scope of Human Rights: From Background Concepts to Indicator', (Discussion paper presented at the Turku Expert Meeting on Human Rights Indicators, Turku/Åbo, 10-13 March 2005), pp. 12-13, 〈www.abo.fi/instut/imr/research/seminars/indicators/Background.pdf〉, visited on 7 November 2007.
43. Developing human rights indicators is only one of the means to implement international human rights. Other means include establishing national human rights institutions, undertaking human rights impact assessments and adopting national human rights plans of action.
44. Malhotra and Fasel, supra note 2, pp. 12-15.
45. Consideration for human rights principles is included in UN Special Rapporteur on the right to health Paul Hunt's list of child survival indicators. See P. Hunt, supra note 6, paras. 15-16.
46. OHCHR Report, supra note 2, para. 15.
47. See also Committee on Human Rights, General Comment 6, The right to life (art. 6), 1994, HRI\GEN\1\Rev.1, p. 127, paras. 2-7.
48. Landman, supra note 29, pp. 13-26.
49. See also T. Landman, Protecting Human Rights. A Comparative Study, (Washington, Georgetown University Press, 2005) pp. 39-52;
50. T. Landman, 'Measuring Human Rights: Principle, Practice, and Policy' 26 Human Rights Quarterly (2004) p. 906.
51. Todd Landman admits that the latter are only development or proxy indicators, despite their relating to human rights. See Landman, supra note 29, p. 24.
52. These criteria are also called the SMART criteria. In addition, according Hans-Otto Sano, indicators should be valid, balanced, sensitive, motivating, practical, owned and clear. See H-O. Sano, 'Human Rights Indicators. Purpose and Validity', (Paper presented at the Turku Expert Meeting on Human Rights Indicators, Turku/Åbo, 10-13 March 2005) p. 4, 〈http://www. abo.fi/instut/imr/ research/seminars/indicators/Human.doc〉, visited on 7 November 2007.
53. Using human rights indicators in this way meet the two conditions that most affect reporting, namely continuity and participation. See C. Heyns and F. Viljoen, The Impact of the United Nations Human Rights Treaties on the Domestic Level (Kluwer Law International, The Hague/London/New York, 2002) p. 39.
54. Committee on Economic, Social and Cultural Rights, General Comment No 18, The Right to Work (art. 6), 2005, E/C.12/GC/18, paras. 46-47;
55. Committee on Economic, Social and Cultural Rights, General Comment No 15, The Right to Water (art. 11-12), 2002, E/C.12/2002/11, para. 54;
56. Committee on Economic, Social and Cultural Rights, General Comment No 14, The Right to the Highest Attainable Standard of Health (art. 12), 2000, E/C. 12/2000/4, para. 20;
57. Committee on Economic, Social and Cultural Rights, General Comment No 13, The Rights to Education (art. 13), 1999, E/C. 12/1999/10, para. 20;
58. Committee on Economic, Social and Cultural Rights, General Comment No 12, The Right to Adequate Food (art. 11), 1999, E/C.12/1999/5, para. 39;
59. Committee on the Rights of the Child General, General Comment No 5, General Measures of Implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), 2003, CRC/ GC/2003/5, para. 48.
60. Actually, quantitative and qualitative data have many aspects in common. Although they are represented in different ways, they both know measurement error problems and create artificial categories to capture concepts. See G. King et al., Designing Social Inquiry. Scientific Interference in Qualitative Research (Princeton University Press, Princeton, 1994) pp. 151-152.
61. Landman, supra note 34, p. 918.
62. Landman and Häuserman, supra note 17, p. 5.
63. HURIDOCS Events Standard Formats: A Tool for Documenting Human Rights Violations (HURIDOCS, Versoix, 2001), 〈www.huridocs.org/tools/ violations〉, visited on 7 November 2007. Registration is necessary to access this document.
64. See D. Samuelson and H. Spirer, 'Use of Incomplete and Distorted Data in Inference about Human Rights Violations', in T. Jabine and R. Claude (eds), Human Rights and Statistics. Getting the Record Straight (Philadelphia, University of Pennsylvania Press, 1991) p. 62.
65. UNDP, supra note 16, p. 94.
66. Wagner and Novak, supra note 25, p. 25.
67. See ibid., pp. 25-32;
68. Malhotra and Fasel, supra note 13, pp. 12-18.
69. Landman, supra note 29, p. 24.
70. Some international agencies are already doing so. UNDP, for instance, created a Gender-Related Development Index, which refines the existing Human Development Index according to sex discrimination. It also created pro-poor and gender-sensitive indicators that can be obtained by further disaggregating data by poverty status and sex. See UNDP, Measuring Democratic Governance. A Framework for Selecting Pro-poor and Gender Sensitive Indicators (UNDP, Oslo, 2006), 〈www.undp.org/oslocentre/docs06/Framework%20paper%20- %20entire%20paper.pdf〉, visited on 7 November 2007.
71. Landman, supra note 34, p. 924.
72. See D. Cingranelli and D. Richards, 'Measuring Government Effort to Respect Economic Human Rights: A Peer Benchmark', in Minkler and Hertel (eds), supra note 8, p. 214.
73. Wagner and Novak, supra note 25, p. 38.
74. UN World Conference on Human Rights, Vienna Declaration and Programme of Action, 1993, A/Conf. 157/23, Part I, para. 5.
75. K. Bollen, 'Political Rights and Political Liberties in Nations: An Evaluation of Human Rights Measures, 1950 to 1984', in Jabine and Claude (eds), supra note 43, pp. 198-201.
76. Landman, supra note 34, p. 923;
77. Landman, supra note 29, p. 22.
78. Bollen, supra note 54, p. 200.
79. See Wagner and Novak, supra note 25, pp. 79-85.
80. OHCHR Report, supra note 2, Annex.
81. The CCA aims to assess the development situation of a state with a view to preparing the UN Development Assistance Framework (UNDAF).
82. The Human Development Report 1991 included a Political Freedom index. However, this index met a lot of criticism (and was subsequently withdrawn), not least because it provided rankings based on not clearly defined standards. See K. Tomasevski, 'A Critique of the UNDP Political Freedom Index 1991', in Human Rights in Developing Countries. 1992 Yearbook (Oslo, Norwegian Institute for Human Rights, 1992) pp. 12-16.
83. See G. de Beco, 'Measuring Human Rights: Underlying Approach', European Human Rights Law Review (2007) pp. 272-273.
84. Article 2(1), ICESCR.
85. R. E. Robertson, 'Measuring State Compliance with the Obligation to Devote the "Maximum Available Resources" to Realizing Economic, Social, and Cultural Rights', 16 Human Rights Quarterly (1994) pp. 695-700.
86. nd rev. edn (N.P. Engel Verlag, Kehl, 2005) p. 62.
87. See Committee on Human Rights, General Comment 6, The Right to Life (art. 6), 1994, HRI\ GEN\1\Rev.l at 127, para. 5.
88. See Committee on Human Rights, General Comment No. 25, The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service (art. 25), 1996, CCPR/C/21/ Rev.1/Add.7, para. 12.
89. It might nonetheless be argued that civil and political rights concepts are clearer because of their being clarified by the jurisprudence of human rights bodies. Many rights enshrined in the ICCPR and the ECHR, however, are still subject to interpretative questions, especially when applied in states where they are normally afforded better protection.
90. OHCHR Report, supra note 2, para. 13.
91. Landman, supra note 29, p. 11.
92. P. Hunt, supra note 3, paras. 22-29. He later applied the same distinction for developing child survival indicators.
93. See P. Hunt, supra note 6, paras. 59-72.
94. See O. Hathaway, 'Do Human Rights Treaties Make a Difference', 111 Yale Law Journal (2002) p. 1936;
95. Keith, 'The United Nations International Covenant on Civil and Political Rights: Does It Make a Difference in Human Rights Behaviour?', 36 Journal of Peace Research (1999) p. 95.
96. Seven out of the seventeen indicators relating to the right to health proposed by the UNHRP are structural indicators: four indicators relate to national legislation, one to the ratification of ICESCR, one to regular reporting to the Committee on Economic, Social and Cultural Rights and one to the presence of offices or institutions responsible for human rights. See United Nations Housing Rights Programme, supra note 11, pp. 51-56.
97. OHCHR Report, supra note 2, para. 18;
98. Malhotra and Fasel, supra note 13, p. 28;
99. Malhotra and Fasel, supra note 2, p. 15.
100. Tomasevski, supra note 21, p. 390.
101. Sano, supra note 36, p. 11.
102. For budget analyses and human rights, see Chapman, supra note 8, pp. 156-157;
103. Cingranelli and Richards, supra note 50, p. 222.
104. K. Beeckman, 'Measuring the Implementation of the Right to Education: Educational versus Human Rights Indicators', 12 The International Journal of Children's Rights (2004) p. 73.
105. K. Beiter, The Protection of the Right to Education by International Law. Including a Systematic Analysis of Article 13 of the International Covenant on Economic, Social and Cultural Rights (Martinus Nijhoff Publishers, Leiden/Boston, 2005) p. 627. The right to education indicators elaborated by Klaus Beiter are based on the 4-A Scheme proposed by former Rapporteur on the right to education, Katerina Tomasevski. See K. Tomasevski, Annual Report of the Special Rapporteur on the Right to Education, 2002, E/CN.4/2002/60, pp. 12-13;
106. K. Tomasevski, Preliminary Report of the Special Rapporteur on the Right to Education, 1999, E/CN.4/14999/49, pp. 15-25.
107. The efficiency of accountability mechanisms can be evaluated by counting the number of complaints of human rights violations. However, the signification of this might vary since it can either mean that human rights violations are frequent or that human rights awareness is high. This is for instance the case when a new human rights legislation generates a lot of complaints, which means that people know the rights enshrined in it. After a certain period, fewer complaints might indicate that compliance with that legislation has been achieved.
108. Sano, supra note 36, p. 11.
109. Outcome indicators' secondary role in assessing state compliance with human rights is confirmed by Paul Hunt's developed set of human rights indicators including only few such indicators. See P. Hunt, supra note 6, paras. 17-26.
110. Because human rights are interrelated, it is also possible that an outcome indicator relating to one human right is a process indicator relating to another or the other way around. See OHCHR Report, supra note 2, p. 8;
111. Malhotra and Fasel, supra note 2, p. 15.
112. P. Hunt, supra note 6, paras. 22-25.
113. See I. Kempf, How to Measure the Right to Education: Indicators and their Potential Use by the Committee on Economic, Social and Cultural Rights, 1998, E/C.12/1998/22. Isabelle Kempf does not include structural indicators in her three-level pyramid. Note that this proposition has been made in 1998.
114. Ibid, p. 3.
115. OHCHR Report, supra note 2, para. 28.
116. A poor person living in a wealthy country does not face the same difficulties as a person living in the same conditions in a poor country. The former will have to make more efforts than the latter so as to live in dignity in his or her state. See A. Sen, Un nouveau modèle économique. Développement, Justice, Liberté (translation: Michel Bessières) (Editions Odile Jacob, Paris, 1999) p. 79.
117. See de Beco, supra note 60, pp. 273-274.
118. Comparisons, however, require first that concepts be understood similarly by the states that are being compared. See A. Lyon-Caen and J. Affichar, 'From Legal Norms to Statistical Norms: Employment Policies put to the Test of Coordination', in O. De Schutter and S. Deakin (eds.), Social Rights and Market Forces. Is the Open Coordination of Employment and Social Policies the Future of Social Europe' (Bruylant, Brussels, 2005) pp. 98-100.
119. OHCHR Report, supra note 2, para. 28;
120. Malhotra and Fasel, supra note 2, p. 15.
121. P. Hunt, supra note 6, para. 27.
122. See Chairpersons of the Human Rights Treaty Bodies and Inter-Committee Meeting of the Human Rights Treaty Bodies, Harmonized guidelines on Reporting under the International Human Rights Treaties, Including Guidelines on a Common Core Document and Treaty-specific Targeted Documents. Report of the Secretariat (Report presented at the 17th meeting of chairpersons of the human rights treaty bodies and the 4th Inter-Committee Meeting of the human rights treaty bodies) 2005, HRI/MC/2005/3.