Less is more: Proposals for how UN human rights treaty bodies can be more selective
| Author | Jasper Krommendijk |
| Published date | 01 March 2020 |
| Date | 01 March 2020 |
| DOI | http://doi.org/10.1177/0924051919899636 |
| Subject Matter | Column |
Column
Less is more: Proposals for
how UN human rights treaty
bodies can be more selective
Jasper Krommendijk
Radboud University, the Netherlands
Abstract
The UN human rights treaty body system will again be under scrutiny for reform in 2020, after
more than a decade of fruitless attempts to strengthen it. This column explores some proposals for
how the treaty bodies and the process of State reporting can become more effective. The central
idea is that treaty bodies need to be more selective and avoid duplication to stop the current
negative vicious circle and evaluation fatigue. To make the dialogue more constructive, the number
of issues discussed should be limited to a handful and treaty bodies should consider smaller review
panels and face to face seating.
Keywords
UN human rights treaty bodies, reform, State reporting, evaluation fatigue, constructive dialogue,
concluding observations, domestic actors and mobilisation
1. INTRODUCTION
2020 will be marked by the umpteenth review of the UN human rights treaty body system to
address the ‘challenges’ the system is confronted with.
1
This euphemistic UN speak hides the fact
that the stakes are high, especially in times when human rights are increasingly under attack.
2
When in July 2019, the Kingdom of the Netherlands appeared before the Human Rights
Corresponding author:
Jasper Krommendijk, Associate Professor of international and European law, Radboud University Nijmegen,
Montessorilaan 10, 6500 KK Nijmegen, the Netherlands.
E-mail: j.krommendijk@jur.ru.nl
1. For more information, see United Nations Human Rights Office of the High Commissioner, ‘Treaty Body Strength-
ening’ (United Nations Human Rights Office of the High Commissioner)
HRTD/Pages/TBStrengthening.aspx> accessed 15 November 2019.
2. See, however, on a more optimistic note David Petrasek, ‘Not dead yet: Human rights in an illiberal world order’ (2019)
74(1) International Journal.
Netherlands Quarterly of Human Rights
2020, Vol. 38(1) 5–11
ªThe Author(s) 2020
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DOI: 10.1177/0924051919899636
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Committee, I was shocked to learn that much of the UN system has remained the same since I
completed my PhD dissertation on treaty bodies in 2014.
3
The lack of change remains despite the
process – positively labelled as treaty body strengthening – that started in 2009. From hearsay, I
understood that there was frustration on all sides. Government officials lamented the unproductive
barrage of questions which did not allow for any reflection, while Committee members and civil
society actors were allegedly unhappy with the short and superficial answers.
The meeting in Geneva is generally referred to as a ‘constructive dialogue’. But can one talk of a
‘dialogue’ when States are bombarded with questions covering a broad and varied number of
issues and have to ‘dish out answers’? Does such an interrogation satisfy the definition of ‘con-
structive’, namely being ‘useful and intended to help or improve something’?
2. EVALUATION FATIGUE
Surprisingly little has thus changed in the operation of treaty bodies in the last few years since I
finished my PhD dissertation on the effectiveness of State reportingunder UN human rights treaties
in July 2014. After my PhD, I decided to stop following the UN human rights treaty bodies out of a
sense of frustration with the functioning of the systemand limited improvements on theground. I do
not blame these problems on the often dedicated and overworked expert members of these bodies
who commit themselves to such importanttasks, often in their free time besides theirbusy jobs. It is
the State Parties that are eventually responsible for the system. They must equip it with sufficient
financial and human resources and ensure that they nominate independent members.
To my mind, the main challenge or persistent problem is the ineffectiveness of the whole State
reporting exercise. In my PhD I found that almost no measures were taken that would not have
come about without treaty body recommendations, the so-called Concluding Observations
(‘COs’). This was based on an empirical study of three States of which you would expect the
system to have most effect, namely established liberal democracies which also have the bureau-
cratic and financial capacity to satisfy the burdensome reporting requirements and follow-up on
COs: the Netherlands, New Zealand and Finland.
4
If the system is not working in these States the
chance is high that it will be even more ineffective in transitioning countries, let alone undemo-
cratic or illiberal countries.
From my research on those three countries it emerged that the treaty bodies and their recom-
mendations are hardly considered legitimate and useful by government officials responsible for the
implementation. This is particularly problematic for a system that lacks teeth and depends upon
softer enforcement mechanisms based on persuasion and legitimacy. Government officials in the
three States examined lamented, not entirely without valid reasons, the poor preparation of some
committee members, their one-sided approach and their overreliance on NGOs. They had the
feeling that some of the COs were already completed before the actual dialogue and they pointed
3. Jasper Krommendijk, ‘The (in)effectiveness of UN human rights treaty body recommendations’ (2015) 33(1) Nether-
lands Quarterly of Human Rights; Jasper Krommendijk, The domestic impact and effectiveness of the process of state
reporting under UN human rights treaties in the Netherlands, New Zealand and Finland. Paper pushing or policy
prompting? (Intersentia 2014).
4. Ian Seiderman, ‘The UN High Commissioner for Human Rights in the age of global backlash’ (2019) 37(1) Netherlands
Quarterly of Human Rights; See, however, Beth Simmons, Mobilizing for human rights. International law in domestic
politics (Cambridge University Press 2009) 149-153. For a rebuttal of this argument, see my PhD thesis, Krommendijk
(n 3) 49-52 and 387-388.
6Netherlands Quarterly of Human Rights 38(1)
to factual mistakes and misunderstanding of the domestic context in some COs. I do not think that
the views of officials in other States would be much different.
5
The ineffectiveness also relates to the broad and vague formulation of the majority of COs,
merely recommending to ‘take adequate policy measure’ or to ‘continue strengthening’. Such COs
frequently coincide with existing policy or legislative measures without having (had) any effect on
them. These views, coupled with a duplication of reporting requirements for States in different
international contexts, further exacerbate an evaluation fatigue. There is a constant need to update
information and produce new documents for the treaty bodies within one reporting cycle: the State
report, replies to the list of issues, the presentation of oral information, the submission of additional
written information after the dialogue as well as follow-up reporting with respect to the imple-
mentation of particular COs.
3. STOPPING THE NEGATIVE VICIOUS CYCLE
The most important objective for the 2020 review is to stop this negative vicious cycle and make
changes to the system. Many sensible recommendations, for example on the selection of experts or
the individual complaints procedure, have already been put forward in the 2020 review process and
previous cycles of reform. It is not my aim to repeat those. I would also caution against all too
radical solutions, such as a unified standing treaty body or a single State report that is subject to
review by all or several treaty bodies in the same week. These proposals all have some merit, but
one wonders whether they are easy to realise from a practical perspective. Given the fact that
progress at the UN level is slow, I would propose relatively easy measures that nonetheless could
change things considerably.
My proposals are based on the idea that the external problems that the treaty bodies are
confronted with (such as the insufficient meeting time, the limited financial resources and exper-
tise) are unlikely to improve in a significant way in the near future.
6
What is more, the demands
placed on treaty bodies are also growing, given the increasing number of ratifications of treaties, in
theory leading to more reports being submitted. More optional protocols with individual com-
plaints procedures have come into existence as well and have already led to a growing number of
individual communications. Some treaty bodies are also confronted with inter-State complaints.
The following proposals are relatively easy to apply by treaty bodies themselves. They do not
necessarily require any approval on the part of the States Parties or any additional funding.
4. BEING MORE SELECTIVE AND AVOIDING DUPLICATION
The motto for my proposals is simply ‘less is more’. Treaty bodies should no longer conduct a
comprehensive assessment of the implementation of the entire treaty and all problematic areas.
The current six or nine hours for the dialogue are simply not enough to discuss the entire human
rights situation in a country. Doing so results in a dialogue which is superficial, irrelevant, not
constructive and which only results in poorly informed COs. Treaty bodies should thus be more
5. Christof Heyns and Frans Viljoen examined the impact of UN human rights treaties in twenty countries and concluded
‘mechanisms used by the treaty bodies appear to have had a very limited demonstrable impact thus far’. See, Christof H.
Heyns and Frans Viljoen, ‘The impact of the United Nations human rights treaties on the domestic level’ (2001) 23(3)
Human Rights Quarterly 488.
6. The proposals are based on the recommendations formulated in my PhD thesis, Krommendijk (n 3) 390-392.
Krommendijk 7
strategic in how they utilise their scarce resources. They should concentrate on a limited number of
the most urgent and critical issues or articles of the treaty. Treaty bodies should ideally focus on the
five most serious problems instead of the entire treaty and all the developments which have taken
place in previous years. Such a focus requires States to increase the quality and detail of input in
their reports to the treaty bodies. The latter would enable treaty body members to have more
detailed, specific and technical knowledge about these issues. It also allows for a (more) structured
and in-depth dialogue instead of the current superficial dialogue of an enormous amount of issues.
In addition, it would facilitate the adoption of more focused and SMARTly formulated COs which
better reflect the realities on the ground.
7
The follow-up to such COs could also be better mon-
itored by domestic actors and by the treaty bodies.
In their choice of topics, treaty bodies should avoid unnecessary duplication and should – in
principle – not focus on issues that other treaty bodies have sufficiently dealt with before or in the
near future. This implies that there should be a better division of labour among the treaty bodies
and coordination between them. In practical terms, this, for example, means that the Human Rights
Committee should in principle leave t he consideration of the issue of gender equality or the
position of ethnic minorities to the Committee on the Elimination of Disc rimination Against
Women and the Committee on the Elimination of Racial Discrimination, at least with respect to
States that have ratified these two treaties and also report (regularly) to those respective Commit-
tees. Why should every treaty body discuss domestic violence, human trafficking, violence against
children and alien detention? Within less than two years, the Dutch government, for example,
discussed almost all of these issues with five different treaty bodies in the period from January
2009 to November 2010. Treaty bodies should, however, not be precluded altogether from exam-
ining such issues related to specific rights-holders when they are topical and pertinent at the time of
the review. One pitfall of greater selectivity is that certain rights remain entirely unreviewed and
fall through the cracks. Such a situation should obviously be prevented. I see a clear responsibility
for the Office of the High Commissioner for Human Rights to maintain oversight and facilitate
proper coordination between treaty bodies.
A justification for this more selective approach of the treaty bodies is the Universal Periodic
Review (‘UPR’) process which has been conducted by the Human Rights Council since 2007. We
should be careful in placing too much confidence in this highly political peer review process led by
diplomats instead of independent legal experts monitoring concrete treaty norms. Nonetheless, the
UPR functions relatively well with (almost) all States submitting their reports and being scruti-
nized every four years. The UPR also focuses on all human rights issues in a particular country.
This provides an argument for treaty bodies to be more selective and focus on the areas in which
States are in (clear) breach of their obligations. In addition, it is not only the Geneva-based process
that is valuable. The UPR has been able to attract more media, public and political attention than
treaty body reviews.
8
As I will further argue below, compliance with human rights norms and the
effectiveness of international recommendations depends upon the mobilisation of domestic actors
other than the government. The UPR does considerably better than the treaty bodies in this respect.
Treaty bodies should also focus (more) on problematic areas where there is a mismatch between
the treaty and the practice on the ground. To date, treaty bodies have insufficiently differentiated
7. SMART is an acronym for ‘Specific, Measurable, Achievable, Relevant, and Timely’.
8. Valentina Carraro, ‘Promoting Compliance with Human Rights: The Performance of the UN Universal Periodic Review
and Treaty Bodies’ (2019) 63(4) International Studies Quarterly, 1079-1093.
8Netherlands Quarterly of Human Rights 38(1)
between clear breaches of treaties and areas where States should ideally do more. The COs are
usually fairly short and lack a legal and evidential basis and often do not make clear how the
recommended measures are related to particular treaty norms. It is thus not surprising that many
States treat the COs as sweeping statements of a general nature, an aspirational wish list or mere
opinions that can easily be disregarded as opposed to authoritative and compelling statements. This
is also the position in literature, where scholars argue that such aspirational COs are less author-
itative than COs that determine that a State Party’s legislation, policy or practice is not in con-
formity with its treaty obligations.
9
A determination of a violation is considered an ‘indication’ that
the State Party is obliged to remedy the situation.
10
The problem is that such determinations are
often hidden in an extensive wish list containing far-ranging aspirational recommendations. I am
not suggesting that treaty bodies can only issue recommendations in case of a (alleged) treaty
breach, but COs should in any case be SMARTly-formulated and carefully outline the problem,
contain concrete policy suggestions or references to best prac tices in other countries that can
inspire governments. This also enhances their (potential) effectiveness. Almost all COs that were
effective in the Netherlands, New Zealand and Finland were specific recommendations outlining a
concrete course of action.
I do not propose a one-size-fits-all approach. Rather, treaty bodies should differentiate between
particular States. Treaty bodies should not at all relax the standard for States that hardly report and
are not subject to regular international scrutiny of a regional human rights organisation. A more
comprehensive review of a greater variety of issues could be justified in relation to such States. By
contrast, treaty bodies should reduce the burden for ‘cooperating’ States that comply relatively
well with their reporting obligations and appear before treaty bodies on a regular basis. At the
moment, the system is by and large focused on countries which need them least. For such countries,
treaty bodies should perform a more secondary role rather than demanding ever more from them.
5. EXERCISING RESTRAINT AND BEING MORE TIMELY
The following proposal would also limit both the work of the treaty bodies as well as States.
Several steps have already been taken in this direction and started to work with a List of Issues
Prior to Reporting (‘LOIPR’). The government’s answers to the LOIPR replace the necessity of
writing a separate periodic State report prior to the LOI. This practice still complies with the legal
duty of State reporting under UN human rights treaties, but just in a different shape so that no treaty
change is required. Doing away with the State report is no problem, because the added value of
such reports has been questionable. By the time of the dialogue, the information in the State report
is often outdated and superseded. It is not uncommon that there is a four years period between the
end date of the period examined and the discussion in Geneva. It seems that most treaty bodies
have now endorsed the practice and have made the simplified reporting procedure available on an
optional basis, albeit rightly so not with respect to initial State reports. This step is to be praised. If
treaty bodies comply rigorously with this approach, this clearly diminishes the reporting burden on
the part of the State as well as the preparation time of treaty bodies (and translation costs!). But all
treaty bodies should (uniformly) apply this approach as the standard and shift from an opt-in to an
9. Michael O’Flaherty, ‘The Concluding Observations of United Nations human rights treaty bodies’ (2016) 6(1) Human
Rights Law Review 34-36. Walter Ka¨lin, ‘Examination of state reports’, in Helen Keller and Geir Ulfstein (eds), UN
Human Rights Treaty Bodies: Law and Legitimacy (Cambridge University Press 2012) 56-57.
10. Martin Scheinin as quoted in O’Flaherty (n 9) 34.
Krommendijk 9
opt-out model, as the Human Rights Committee decided recently under the motto ‘predictable
review’.
11
Nonetheless, there are still certain points worthy of attention. First, questions on the part of the
treaty bodies in the LOIPR should be limited and specifically formulated as far as possible. This
requires restraint from treaty bodies.
12
When governments are asked to write more or less the same
as they would have done in the absence of a LOIPR, the earlier mentioned gains are not realised.
The 2015 LOIPR of the Committee Against Torture for the Netherlands clearly does not fit with
this approach.
13
This was a fourteen-page document that basically served as an instruction of how
to write a State report. The following two general questions should, for example, as far as possible
be avoided: ‘What recent efforts have been made to strengthen the mechanisms available to
provide effective remedies against discrimination and to promote substantive equality?’
14
and
‘Please provide information on significant political and administrative measures taken since the
previous reportto promote and protect humanrights under the Covenantsince the previous report’.
15
The way in which the LOIPR has been used recently by the Human Rights Committee vis-`a-vis the
Netherlands is a step in the right direction because of the specific nature of the questions that often
asked the Stateto respond to particular allegations or reports.In addition, it was a six-pagedocument
with 30 paragraphs that resulted in a State report of ‘only’ 38 pages.
16
By contrast, the previous
Dutch state reportof 2007 was 96 pages long, excluding annexes, and the replies to the List of Issue
amounted to another54 pages. Future LOIPR of the HumanRights Committee will probablybe even
shorter since the Committee decided to strive to limit the number of questions to twenty five.
Second, another critical note is the time span between all documents preceding the dialogue.
The LOIPR for the Netherlands, for example, was adopted in October 2019 with a deadline for
answering one year later. The review is scheduled only in May 2021. The ‘predictable review
calendar’ presented by the Human Rights Committee also foresees two years between the LOIPR
and the actual review. This is (still) too much. The constructive dialogue should take place shortly
after the submission of the government’s answers to LOIPR, while at the same time allowing
NGOs and National Human Rights Institutions (‘NHRIs’) sufficient time to respond to the gov-
ernment’s answers. Shorter intervals of weeks instead of months would benefit a timely dialogue.
6. TURNING IT INTO A TRUE CONSTRUCTIVE DIALOGUE: FACE-
TO FACE SEATING AND REVIEW PANELS
Another rather simple concrete proposal that has been put forward elsewhere could also enhance
the constructive nature of the dialogue, namely face-to-face seating during the dialogue with fewer
people in the room.
17
It is certainly not uncommon to have forty to fifty persons in one big room,
11. Human Rights Committee, ‘The Predictable Review Cycle’ (Human Rights Committee)
HRBodies/CCPR/Pages/PredictableReviewCycle.aspx> accessed 15 November 2019.
12. This corresponds with the General Assembly’s Resolution’s reference to ‘a limit on the number of questions’. For this,
see UN Doc. A/68/L.37 (2014), para 1.
13. UN Doc. CAT/C/NLD/QPR/7 (2015).
14. UN Doc. CCPR/C/AUS/Q/6 (2012), para 9.
15. UN Doc. CCPR/C/DNK/Q/6 (2011), para 2.
16. UN Doc. CCPR/C/NLD/QPR/5 (2017).
17. See the response of the Norwegian Centre for Human Rights of 18 March 2019 on
HRBodies/TB/HRTD/3rdBiennial/CSO/NorwegianCentre_HumanRights.docx> accessed 15 November 2019.
10 Netherlands Quarterly of Human Rights 38(1)
seated in a very unpractical way, sometimes ev en with their backs to each other or with the
committee on a podium. The proposals advanced in this column would facilitate a smaller set-
up, since the focus on five instead of an endless amount of issues means that delegations of twenty
officials are no longer needed. Probably only a third or even a quarter would suffice.
Another, more far-ranging step proposed in the same position paper, would be to create smaller
treaty body chambers or review panels in line with the operation of (international human rights)
courts. This seems logical as well, because States might be reluctant to size down their delegations
when they are confronted with a committee of eighteen experts. Knowing that you ‘only’ face, for
instance, five members might reduce the need to impress the treaty body with a whole ‘army’ of
officials. A chamber system would also be a perfect measure to reduce the backlog in the consid-
eration of State reports (and individual and inter-State complaints). It could also ensure that the
dialogue follows shortly after the submission of the LOIPR.
7. ULTIMATELY IT IS UP TO DOMESTIC ACTORS
One should not exaggerate the possible gains of these proposals. This caution could at the same
time be a reason for not being too reluctant to make changes in practice. This is because the
effectiveness of the system of State reporting ultimately depends upon domestic stakeholders such
as NGOs, Members of Parliament, journalists and officials from NHRIs . There is naturally a
propensity of governments not to act upon COs from their own motion. This stalemate can only
be broken by domestic actors pressing and persuading the government to act. Domestic actors
benefit from more selective treaty bodies that adopt better informed and more specific COs on only
the most pertinent issues. When the treaty bodies do less, domestic actors could do more.
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publi-
cation of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
Krommendijk 11
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