United Nation Human Rights Treaties Reporting Systems - Term Paper Example

United Nation Human Rights Treaties Reporting Systems: The Convention on the Rights of the Child Introduction The UN’s human rights system is fortified by international treaties. In order to monitor implementation and compliance with its main treaties and covenants, the UN established institutions. Under the Universal Declaration of Human Rights 1947, the UN Commission on Human Rights (UNCHR) was established as the principle institution for both the protection and promotion of human rights. However, the UNCHR failed in that it lacked credibility since states that contravened human rights enjoyed the same status as those states that protected human rights. In 2006, the UN Human Rights Council replaced the UNCHR, but has already come under attack for being far too political (Stacy 2009, 51).1 There are seven UN human rights treaties/covenants and they each have their own committee for monitoring and reporting how each state is complying with its obligations under the relevant treaty. Each member state is required to provide regular reports and updates to the UN human rights committee. In turn the committee examines the report and makes a report to the UN’s General Assembly with recommendations. However, the committee process has significant limitations as it is not entirely certain that subscribing to a UN human rights treaty automatically means that a state is wholly committed to the treaty’s principles. Moreover, the bureaucracy by which the systems are characterized is hardly consistent and states may contravene the formal requirements with little or no real consequences (Stacy 2009, 52).2 These limitations are examined by reference to the Convention on the Rights of the Child (CRC). I. The Committee on the Rights of the Child The UN’s General Assembly implemented the Convention on the Rights of the Child in 1989 and despite the fact that some of the delegates expressed some concerns about the primary provisions, the Convention was adopted. By September of the following year the 1989 Convention met the minimum ratification requirement and was therefore “entered into force”.3 In February 1991, a ten-member committee (Committee on the Rights of the Child also known as the CRC) was elected for the purpose of implementing the 1989 Convention. One month later the UN Secretary-General stated that at least 71 members states had ratified or acceded to the 1989 Convention and another 60 states had signed the Convention.4 By 1994 more than 182 member states had subscribed to the 1989 Convention representing the largest supported international human rights treaty.5 The ten-member CRC is comprised of neutral experts and convenes three times a year for three weeks at the UN Centre for Human Rights also known as the Office of the United Nations High Commissioner for Human Rights.6 The Committee on the Rights of the Child has as its main purpose the examination of member states’ implementation of the CRC. Member states are also required to furnish the Committee with reports explaining the measures that they have taken to implement both the rights under the CRC and any progress relative to the “enjoyment of those rights”.7 The first report is provided two years after the CRC came into force in the reporting state and at subsequent five year intervals.8 The focus of the CRC’s main authority is the monitoring of member states’ reports and lending technical aid and advice with respect to implementing measures and taking action for promoting and protecting the wide range of rights encompassed by the 1989 Convention.9 Like all UN Human Rights Treaties, member states are required to provide what is referred to as a “core document” which sets out its efforts for implementation and its consequential and influential conditions.10 This can mean social, economic and political conditions that compromise the implementation of specific rights provided for under the 1989 Convention. Cooperation relative to the reporting system however has been flawed. The number of member states providing their respective committees with core documents has been relatively low.11 Implementing the measures provided for in the 1989 Convention, interpreting and applying them is not an easy task. The Convention itself is perceived as “an all-encompassing” treaty.12 The 1989 treaty deals with a number of civil, political, social, cultural and economic rights relative to the child. It describes both parental and state obligations to ensure that these various rights are protected and ensured.13 II. The Reporting System for the Committee on the Rights of the Child By virtue of the Convention on the Rights of the Child 1989, member states are required to ensure that their initial report contain the general measures taken to implementation of Articles 4, 42 and 44(6) of the 1989 Convention. Article 4 provides that all member states “shall undertake all appropriate legislative, administrative, and other measures” necessary for implementing the “the rights recognized” in the 1989 Convention.14 Article 42 calls upon contracting states to take measures to ensure that the rights delineated under the 1989 Convention are well known “by appropriate and active means, to adults and children alike”.15 Article 44 makes provision for reporting obligations generally and Article 44(6) provides that those reports are to be made “widely available to the public”.16 Member states’ initial reports are also required to provide a definition of the Child in accordance with Article 1 of the Convention. In this regard, Article 1describes the child as: …every human below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.17 In other words, if by the reporting state’s domestic law, the child attains the age of majority earlier than age 18, the reporting states is required to provide that specific definition of child to the CRC in its initial report. Additionally, the initial report is required to provide information relevant to the implementation of civil rights and liberties pursuant to the 1989 Convention. Information relative to assistance to the family environment and state care specifically related to the best interest of the child and respecting the child’s views under the 1989 Convention must also be included in the initial report. Information about state provisions for basic welfare, education, cultural protection, special protection services and health services are also required in the initial report.18 Once the initial report is received a state party report discussions with representatives from the government are “prepared by a working group”.19 The working group’s purpose is to narrow down the issues earmarked for discussion with government representatives from the reporting state. This way states are provided with notice of the issues that might be the focus of attention in their reports. The secretariat then prepares a country file for the working group which contains information in the report that should be examined. In order to facilitate this process, the CRC invites “relevant” UN bodies, NGOS, special agencies and other relevant bodies to provide “appropriate documentation to the secretariat”.20 Representatives from the various UN bodies and other agencies participate in the working group meetings and provide them with advice. Other representatives of other bodies such as NGO may also be invited by the working group for input. A List of Issues is drafted and submitted to the Government of the reporting states. The Committee will ask the reporting state to respond to the List of Issues before the upcoming session so that those responses can be translated for the Committee. An invitation to the upcoming session is sent by the Committee to the reporting State with details about the date and time for a discussion. The discussion is held in public and open meetings by the CRC with both State representatives and CRC members involved in the discussion. Other UN bodies and agency representative are present. The discussion typically centre of progress and difficulties relative to the implementation of the 1989 Convention.21 As the discussion winds down, the CRC members will provide a summary of their respective observations on the reporting state’s report and the ensuing discussion and will if they feel compelled, make recommendations. The reported state is then invited to provide its final statement. The next step takes place in a closed meeting by the CRC members who will come to an agreement on making written Concluding Observations which invariably includes recommendations. The Concluding Observations are important because they represent the final phase of the reporting system and generally evaluate the initial report and the ensuing discussions.22 If the CRC determines that the information contained in the initial report is inadequate or that further clarification is needed, and there is an agreement to continue discussions in another session, the Concluding Observations will be deemed preliminary.23 The Concluding Observations typically include an introduction, progress made, difficulties compromising implementation of the 1989 Convention, the main areas of concern and recommendations which are all addressed to the reporting state. Preliminary Observations will typically contained the same information although they are not conclusive. The CRC may also in its Observations request further information from the reporting state pursuant to Article 44 of the 1989 Convention so as to gain greater insight into the reporting state’s situation. 24 Follow-up action is required in which the CRC expects that issues raised in the Concluding Observations are responded to by the reporting state in its responding report. This is particularly so where the CRC pointed to specific issues requiring attention in its observations. When the CRC request additional information or clarification pursuant to Article 44 (4) of the 1989 Convention, that information will be the subject of another session. Likewise when a state report receives a Preliminary Observation by the CRC, a future session will be slated to deal with those observations. The Preliminary Observation will provide a synopsis of the issues that require further discussion and what information is required to further those discussions. Pursuant to Article 45(b) of the Convention, the CRC is at liberty to communicate with related bodies inclusive of the Centre for Human Rights and request expert advice or aid. Reporting states may also request assistance from the Programme of Advisory Services and Technical Assistance from the Centre for Human Rights.25 Overdue reports are also dealt with by the CRC. Ideally, all reports are required to made in a timely manner. The Committee will typically be persistent in reminding states of their obligations to submit reports. If a state fails to submit a report the CRC will proceed without the state’s input.26 Ultimately, the CRC’s reporting system works with member states and other “competent bodies” including UNICEF and NGOS for the purpose of securing international cooperation for monitoring the implementation of the provisions contained in the 1989 Convention.27 Verhellen explains the reports’ role in maintaining the CRC’s mandate. According to Verhellen: These reports should contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in every country concerned. Comprehensive in the sense that it covers all the areas of the Convention and that it should reflect the way the different concerned entities, of public or private nature, at the central, regional and local levels are involved.28 General comments, advice and recommendations by the CRC does not have the force of law, although they can have persuasive value and should influence state conduct in terms of “improved observance and better realization of human rights norms”.29 The Convention itself is legally binding on its signatories so that a State may not evade obligations under the Convention, but it does not have the specific force of law that a judgment or statute has.30 In other words, failure to comply with the provisions contained in the 1989 Convention are not enforceable to the extent that there are no real penal or punitive sanctions under the Convention. However, there is a general expectation that when a contracting state is found to be in violation of any international human rights treaty, there is a residual duty to rectify those violations.31 In general, despite the 1989 Convention’s limited legally binding context, the reporting system promulgated by the CRC is expected to function as an instrument of pressure. It is perceived however, that feeling the pressure of the international community via the CRC and other competent bodies, contracting states are more inclined to seriously implement the provisions contained in the 1989 Convention.32 Be that as it may, the limited legal authority of the CRC has not been sufficient to improve or direct state conduct. III. Committee on Children’s Rights’ Reporting System and State Behaviour State behaviour under any human rights treaty can be compromised by the seemingly ad hoc nature of the reporting system. The fact is there is a measure of inequity and lack or organization and consistency relative to reporting systems in general. This method for revision of a contracting state’s compliance with and implementation of the treaty differs in a number of significant ways. First the information in member state reports differs from one state to another. Secondly, legal information and conditions are different from one state to another. Thirdly, each of the areas under scrutiny are different. Fourthly, the issues for concern are different from one state to another and finally, recommendations for compliance and implementation are different from one state to another.33 The difficulties posed by these diverging and inconsistent reporting processes is that the CRC has before it a copious wealth of information and cannot take an entirely objective approach to compliance and implementation issues. It is required to take an entirely subjective approach and cannot set a standard for compliance and implementation that is equally applicable across the board. The natural result is that state conduct will differ among the different contracting states. There is no real standard for ensuring compliance and implementation so that states are treated differently and may very well feel that there is no real obligation to follow advice and recommendations. Complicating matters, the CRC does not have the authority to entertain complaints nor does it have the authority to punish or sanction a state that fails to comply or adequately implement the 1989 Convention.34 The only real method for dictating state behaviour must necessarily come from the interpretation and application of the Convention of 1989 by higher national courts and international courts such as the European Court of Human Rights and the Inter-American Court of Human Rights.35 This method of enforcement provides the only real and viable route for setting universal standards for what can be described as “widely accepted children’s rights values” among the international and domestic spheres.36 Even so, the problems of unequal treatment of the 1989 Convention’s provision will not be eradicated by this approach. The fact is, different jurisdictions and different international courts will have different ways of interpreting and applying the provisions contained in the 1989 Convention. As it is, the CRC’s reporting mandate places significant reliance on individual state’s adopting a “positive and serious attitude toward reporting obligations”.37 Therefore, unless a state takes the reporting system and the rights enunciated under the Convention of 1989 seriously and positively, the reporting system is no more than a mere formality. Essentially, what this means is that if the reporting system is going to have a positive impact on state behaviour, the reporting state must first take the reporting system and international treaty to which it is a member positively and seriously. This is especially so since the recommendations contained it the Concluding Observations are not per se, legally binding on the reporting state.38 Even so, the general comments made by the CRC in the context of the reporting system has a great potential to influence state conduct. These comments can act as a vehicle for clarifying and interpreting the rights and obligations contained in the 1989 Convention so that the rights of the child will eventually become grounded in both “custom and convention”.39 A groundwork for setting international norms is therefore rooted in the UN human rights treaty reporting system.40 A limitation hindering the effectiveness of the CRC’s reporting system is its tendency to “follow the structure of” its guidelines when examining the representatives of states.41 By taking this approach, significant concerns that typically appear at the end of the CRC’s guidelines often do not get the attention it demands. For example, the UK, the youth justice issue did not obtain adequate consideration by the CRC so that the UK ignored the Committee’s findings arguing that it failed to provide the UK government with sufficient time for clarifying, “the nature of the current and proposed legislation relating to young offenders”.42 Another limitation impacting state conduct is the failure to provide a state rapporteur. In this regard there is an absence CRC committee member responsible for focusing dialogue at any of the relevant stages of the reporting process. Moreover, a rapporteur would provide a mechanism for ensuring that the relevant core documents are prepared and read and that the primary issues and concerns are responded to.43 Given the ad hoc nature of the reporting system and the subjective approach to reporting and responding, each of the committee members are inundated with high volumes of reports. A rapporteur would provide an efficient and effective method for assisting committee members with sorting through the voluminous reports and pinpointing areas of concern. Landsdown however, comments that the high volume of reports that the CRC takes possession of speaks to the fact that the CRC is a “victim of its own success”.44 This volume of work speaks to the large number of member states subscribing to the 1989 Convention. In response to the large volume of reports necessitated by the large number of contracting states, the UN implemented a Plan of Action so that the Committee under the Office of the UN High Commissioner for Human Rights. With this comes five additional posts that provides more support to the CRC so that it may be better positioned to monitor and respond to state reports.45 In the final analysis, the work of the CRC within its reporting system appears to be both a symptom of success and failure. On the one hand, it demonstrates a positive and serious attitude globally to set norms and standards for the protection and promotion of the rights of children. On the other hand, it demonstrates that the CRC may have adequate resources for setting standards and ensuring that they are complied with. Conclusion The primary purpose of the UN’s human rights agenda is to obtain universal norms for the recognition and protection human rights. Ratification of the various treaties is only the first step toward achieving those goals.46 Implementation and compliance is perhaps the second and most serious reflection of the setting of international norms. Reporting systems are perceived as one method for influencing state behaviour in this regard. However, as manifested by the CRC’s reporting system the UN still has a lot of work to do to ensure that the reporting systems are effective enough to influence state behaviour so that universal norms of human rights are not merely recognized, but put to work by virtue of serious attention to implementation and compliance mandates. The appointment of country rapporteurs appears to be the first necessary step toward ensuring that states take the 1989 Convention seriously and feel the pressure not only from the international community and the CRC, but from a single surveyor. Bibliography Textbooks Andrews, A. Implementing the U.N. Convention on the Rights of the Child. (Greenwood Publishing Group 1999). Covell, K. and Howe, R. Children, Families and Violence: Challenges for Children’s Rights. (Jessica Kingsley Publishers 2009). De Schutter, O. International Human Rights Law: Cases , Material, Commentary. (Cambridge University Press, 2010). Detrick, S. A Commentary on the United Nations Convention on the Rights of the Child. (Martinus Nijhoff Publishers, 1999). Erikson, M. Reproductive Freedom: In the Context of International Human Rights and Humanitarian Law. (Martinus Nijhoff 2000). Ensalaco, M. and Majka L. Children’s Human Rights: Progress and Challenges for Children Worldwide. (Rowman and Littlefield 2005). Smith, R. Texts and Materials on International Human Rights. (Taylor and Francis 2009). Stacy, H. Human Rights for the 21st Century: Sovereignty, Civil Society, Culture. (Stanford University Press, 2009). Van Buren, G. The International Law on the Rights of the Child, (Martinus Nijhoff 1998). Verhellen, E. Monitoring Children’s Rights. (Martinus Nijhoff 1996). Verheyde, M. and Goedertier, G. Articles 43-45: the UN Committee on the Rights of the Child, Vols. 43-45 (Martinus Nijhoff 2006). Articles/Journals Cohen, C. Kosloske, S. and Hart,S. ‘Monitoring the United Nations Convention on the Rights of the Child: The Challenge of Information Management.’ (May 1996) 18(2) Human Rights Quarterly, 439-471. Committee on the Rights of the Child, ‘Convention on the Rights of the Child’ (19 September-3 October 2003) Thirty-Fourth Session, CRC/GC/2003/5, 1-21. Gaer, F. ‘A Voice Not an Echo: Universal Periodic Review and the UN Treaty Body System.’(2007) Human Rights Law Review, 109-139. Kornblum, E. ‘A Comparison of Self-Evaluating State Reporting Systems, Part One.’ (1995) 304 International Review of the Red Cross, 39-68. Lansdown, G. ‘The Reporting Process under the Convention on the Rights of the Child,’ cited in P. Alston and J. Crawford (eds) The Future of UN Human Rights Treaty Monitoring, (Cambridge University Press 2000). LeBlanc, L. ‘The Convention on the Rights of the Child.’(1991)4 Leiden Journal of International Law, 281-291. O’Flaherty, M. ‘The Concluding Observations of United Nations Human Rights Treaty Bodies.’ (2006)6(1) Human Rights Law Review, 27-52. Van Bueren, G. ‘The Committee on the Rights of the Child in Langford.’ (2009) Queen Mary University of London, Legal Studies Research Paper, NO. 37/2009, 1-26. Statutes Convention on the Rights of the Child, 1989. Internet Sources Committee on the Rights of the Child, Overview of the Reporting Procedures, U.N. Doc. CRC/C/33 (1994). http://www1.umn.edu/humanrts/crc/CRC-PROC.htm (Retrieved October 27, 2010). Read More