By Cherif Bassiouni / William Schabas (eds.), Antwerp (Intersentia) 2011, 480 pages
Following an initiative of the United Nations High Commissioner of Human Rights, Navanethem Pillay, two high-profile and critical experts on international law have undertaken the task to survey the present state of the ‘UN Human Rights machinery’, as well as to present different perspectives on possible improvements in various areas its future developments. The result of their efforts is an exceptionally dense collection of sophisticated articles, full of critical insights and significant reform proposals. This work will without a doubt be valued as a considerable input to the discussions within the UN itself, and to the wider debate about human rights. Almost all of the contributors have intimate personal knowledge of the ‘machinery’, and use their experience as independent experts to analyze and assess the particular elements of the system in the light of their historical conditionalities, their successes, failures, and possibilities for development.
The system of the so far 10 treaty bodies – the committees of independent experts who are charged with overseeing the human rights treaties of the UN – has undergone intense reform debates within the Office of the High Commissioner for Human Rights for some years. Contributing new input to these discussions was one of the main motivations to develop this volume. Consequently, the first part of this book consists of the analysis and the future of this central pillar of the UN system for the protection of human rights. The ten articles in this first section offer exciting, surprising and partly highly controversial insights and accesses to the functions of the committees. Starting the reader off with an article about a UN organ which has not yet come into being – the World Court of Human Rights (not to be confused with the International Criminal Court) – is without a doubt striking. Manfred Nowak, the former Special Rapporteur on torture and long-time UN human rights expert, has in the past years become the most prominent supporter of such a world court, which is supposed to complement the regional ones already in place in Europe, America and Africa. Nowak’s arguments connecting the world court to the UN treaty bodies quickly take form in his essay, as this court would, similar to the regional ones, carry out essential functions of the treaty bodies: the binding interpretation of different human rights treaties, and, most importantly, deciding over individual complaints of human rights violations that are currently, albeit often only belatedly through optional protocols, delegated to the treaty bodies. According to the draft statute of the World Court of Human Rights states recognizing this new court would delegate the decision on those individual complaints to the court, and consequently remove them automatically from the authority of the treaty bodies. Thus the concept of a world court intercepts the reform debate on the treaty bodies at two virulent points: On the one hand it would alleviate their caseload and could make them more efficient. On the other hand it would contribute to a greater degree of coherence in the interpretation of the treaties and in the overall protection of the rights of victims of human rights violations.
Yet another contribution to the topic which goes beyond the actual discussion on the treaty bodies can be found within the manifold of specialized articles. Editor William Schabas completely sweeps away the classical differentiation (which is the basis for the entire structure of the UN High Commission’s webpage) between legally binding and non-binding human rights documents (the latter being paradoxically termed ‘soft law’) in his short and precise essay. He convincingly argues that this distinction is already insufficient when looking at the non-binding Universal Declaration of Human Rights, merely a UN General Assembly resolution, yet incorporated in numerous international treaties as a legal source. On the other hand, the formally more legally binding human rights treaties have in reality often turned out to be non-binding at all when it came to their implementation, which is supposed to define their binding character in the first place, as Schabas notes. Therefore Schabas proposes to replace this two-class system with a gradual understanding of the judicial efficacy of internationally acknowledged human rights treaties. This in turn could strengthen their obligatory nature, and, above all, improve the real authority of these instruments.
The contributions that specifically address the treaties employ different perspectives to discuss all their central functions: the state reporting system which makes up a central aspect of almost all the committee work in these treaties, including the recommendations of the committees to the states and the – especially weak – compliance monitoring of these recommendations; the role of the ‘general comments’, the authoritative notes that the committees hand out for the interpretation of the respective treaties; the possibility for victims to address the committees by individual complaints (in most of them created by respective appendix protocols) and the resulting opportunity to concrete victim protection; and lastly the general question of victim participation in the work of the entire ‘machinery’. Some authors strongly utilize exemplary materials. Chris Maina Peter’s analysis of the individual complaints instruments, exemplified by the anti-racism committee (CERD), turns more into a summary of the CERD as such, of which the author used to be a member for a long time. Aslan Bashidze, however, demonstrates on the example of the CESCR the general meaning of the ‘general comments’ as an important tool for the overall work of the committees. With his analysis of the effectiveness of the state reporting system Rachael Lorna Johnstone chooses a middle ground. He utilizes the recently formed Committee against Enforced Disappearance as a central example but the suggestions he develops for it are strictly general in nature and partly very original. They mostly aim at two things: a greater coherence of the state reporting procedure, whose large work load and great overlaps are always a central point of critique in the reform process from the states, and, in a more innovative note, a strong pleading for a decentralization of the committee work and a stronger presence in the regions. Finally, another essay is written on the same topic, by Michael O’Flaherty (deputy chairman of the committee on human rights) and Pei-Lun Tsai. Commonly known as a sore point of the human rights treaty system is the monitoring of compliance with the recommendations of the committees, which are actually more than recommendations but clear cut statements what the respective state is supposed to do. The director of the Jacob Blaustein Institute for Human Rights of the American Jewish Committee and deputy chairperson of the UN Committee Against Torture, Felice Gaer, suggests some very precise measures for advancement in this area.
The highlight among the contributions to the work of the treaty committees though seems to me to be the analysis and reform suggestions developed by three members of the Argentinean human rights organization CELS, regarding the treatment of the individual complaints by the treaty committees. Starting from the inequality of weapons between victims and the respective governments, which can be observed not only in the UN system, Gabriela Kletzel, Camila Barretto and Mónica Zwaig formulate a catalogue of detailed reform proposals for the work of the committees as such, as well as for the interactions between them, with the victims and their representatives. They base their work on precise knowledge of the work of all committees, relevant judgments in regional human rights courts and of the discussion about future reforms initiated 2006 by the UN High Commission. Central demand in their contribution is to enhance the role of the victims in all phases of the procedure and make them the focus of all reform discussions. Such a perspective, however, does not lead them to a reduction of their view on only individual victim protection. Instead, they develop a number of demands for effective victim protection that would actually make the principles of integral reconciliation, ending impunity and guarantees against renewed human rights violation central in the committees’ recommendations to the respective states. Those recommendations could start from the tangible individual case and aim at the structural roots of each human rights violation and thus become a real improvement for potential or actual aggrieved parties.
The second part of the book is essentially about the work of the Human Rights Council (the successor of the former Human Rights Commission). Highly critical in his perspective, Olivier de Frouville, now chairperson of the Working Group on Enforced and Involuntary Disappearances (WGEID), commences this part by analyzing the human rights protection system of the UN in general and the Human Rights Council in particular. According to Frouville, states did acknowledge that human rights can not be left to governments alone but needed the expertise and especially the political independence of experts. However, there is no organic connection between the world of states and the sphere of experts in the UN system, which results in the voices of the experts (and here he specifically means the treaty bodies) often remaining unheard. Frouville does not, similar to Manfred Nowak in the first part, eschew introducing radically new ideas to the debate. He sees the system of treaty bodies having reached its limits and views, like Nowak, an international human rights court as a viable new form to reform this system and make it more efficient. Similarly critical are his views of the work of the Human Rights Council with its Universal Periodic Review (UPR). The latter, a system of reciprocal control of states themselves over their human rights behaviour, should, in his perspective, actually be the task of the Council as a genuinely political organ. Other functions, like the observation of specific human rights topics (by the Special Rapporteurs) or the further development of human rights norms and other rather conceptionally oriented functions, which are currently fulfilled by the Council, Frouville would like to assign to an entirely new organ, a ‘World Human Rights Commission’ (which might remind one of the very first steps of the old Human Rights Commission in 1946 but has nothing to do with the later Human Rights Commission or the Council). This would in fact not be a state but an expert organ that would be instituted directly by the General Assembly. However realistic or purposeful these suggestions may be, the fact that they are formulated by people working in prominent positions within the UN system demonstrates the necessity to at least think outside the cul-de-sac of political blockages that partly characterize this system.
Lyal Sunga of the Raoul-Wallenberg-Institute in Lund also provides a fresh look on the main organs of the UN. Every new account of the grossest human rights violations and war crimes committed in a UN member state poses the same question of which part of the UN system actually is in charge of investigating the situation, of providing remedial measures and ultimately bringing the persons responsible to justice. The UN Security Council (UNSC), in principle the strongest organ that has for example reacted so disparately and erratically to the recent crises in Libya and Syria, is indeed responsible for peace and collective security. Until the 1990s, as Sunga rightly remarks, the UNSC has avoided the terms ‘human rights’ or even ‘international criminal justice’ like the plague, which made the decision to create the international criminal tribunals for Yugoslavia and Rwanda in order to achieve peace a complete and abrupt position change. Preceding these events were investigative commissions initiated by the Secretary-General. Ever since then, such commissions have been created by the Secretary-General, the UNSC, and the Human Rights Commission respectively the Human Rights Council. Meanwhile, investigations conducted by the International Criminal Court (ICC), at times on referral by the UNSC, can be added to that. Not only does that risk parallel courses of action with the same endgame of the protection of human rights (and additionally at the UNSC, keeping the peace) – one example would be the international investigative commission for Libya, initiated by the Human Rights Council, about whose relationship to the decisions of the UNSC the chairperson of this commission, Philippe Kirsch, unfortunately does not tell much in his report within this volume. It can also lead to overlap with counter productive effects, for example due to different investigative logics if conducted by either a commission of the Human Rights Council, which focuses on the analysis of events and violations of human rights norms, or by a commission of the ICC that searches for individual responsibility. It is unclear whether or not results of the Human Rights Council commissions would and should have evidentiary value before the ICC. In any case, Sunga sees the Council to be challenged more severely to act, especially when the UNSC is incapable to.
The central instrument of the Human Rights Council, the Universal Periodic Review (UPR), is carefully examined by Constance de la Vega and Tamara Lewis. In principle they view the ‘peer review’, introduced by other international organizations like the OECD and the EU, as an excellent instrument to achieve improvements in a political organ like the Human Rights Council. Even regarding the details their analysis is unusually positive, which thus results in merely minor recommendations of a mainly technical nature, whose implementation would without a doubt streamline the process.
In addition to that, the other central protection instrument of the Council, the Special Procedures, is extensively analyzed in two further contributions. Ingrid Nifosi-Sutton delivers a historical-critical overview of the Special Procedures, from the first expert working group on the South Africa situation 1967 until the full body of today’s total of 44 Special Rapporteurs and topic-specific working groups. Tania Baldwin-Pask and Patrizia Scanella, both from Amnesty International, delve into the discussions, stronger pressed ahead since the transition from the Human Rights Commission to the Council, about a reform of the ‘system’ of Special Rapporteurs, which precisely is not a ‘system’ but the result of renewed but individual reactions of the UNSC to newly discovered problems. Further confusion is added by the Special Representatives that the Secretary-General appoints for specific questions of human rights. All three authors place high value on the independence of experts in the Special Procedures and agree that it needs to be defended against increasing attempts of clipping it like the disputable ‘Codes of Conduct’. Both essays place different weight on the relationship of the Special Rapporteurs to the other vital pillar of the Human Rights Council, the UPR, and to the Treaty Bodies. Especially the UPR has profited greatly from the reports of the Special Procedures as well as of the Treaty Bodies, which are also officially accepted as an input to the ‘review’ in this procedure.
The plan for this volume was to compile new challenges for the UN system for the protection of human rights. This goal has been achieved in extraordinary quality. It did so not because it presents a road map for the next years – conversely, the book collects many partly congruent, partly implicitly or even obviously contradictory recommendations that have all one thing in common: the preservation and expansion of the international protection system is at the center of all these deliberations – and a vital instrument must be a better streamlining process and improved coordination of the individual components of this system.
Translation from German: Rebecca Römer