[Facilitators’ Note: Guest Moderators and the HURITALK Network Facilitator wish to thank all those that participated in this e-Discussion. We emphasize that the summary attached can not begin to do justice to the depth and number of contributions received. Based on the response, we plan more follow up activities on this subject to address issues brought up during the e-Discussion. We welcome ideas and suggestions. Thank you.]
Final Summary of E-Discussion : How to Strengthen Engagement with the International Human Rights Machinery?
Prepared by Emilie Filmer-Wilson
The seven week E-discussion explored how the UN family and the broader development community can make the most use of the human rights machinery. It focused on two of the main pillars of the international human rights machinery: Treaty Bodies and Special Procedures. It explored how development actors could support national actors to engage with these mechanisms; and how they can most effectively use their processes and recommendations to impact national policy and country programming.
The discussion received inputs from diverse regions, types of countries, UN agencies, NGOs and human rights experts. The examples shared by members show the great value of these mechanisms as tools to address national development challenges. However, they also illustrate the challenges of translating this framework into concrete action at the national level. To overcome these challenges members identified a number of strategies and steps that they had found useful in their work. And they made a number of concrete suggestions for what both the development and human rights community could do to strengthen engagement with the international human rights machinery.
Each theme of the discussion received detailed and substantive inputs from members reflecting the wide scope of the areas covered. To do justice to the number of comprehensive contributions received, the e-discussion summary is divided into three parts related to the three themes of the discussion. These are:
I. How can Human Rights Mechanisms Contribute to Development P rogramming?
II. Engaging with Special Procedures
III. Engaging with Treaty Bodies
The Member Responses in Full are provided at the bottom of the Summary.
* For background information on the International Human Rights Machinery (including Treaty Bodies and Special Procedures), please click here
Responses were received, with thanks, from:
Hanne Lund Madsen , Human Rights in Development Consultant, Denmark
Joachim Nahem , UNDP Oslo Governance Centre
Joachim Theis, UNICEF, Bangkok, Asia Pacific
Neil Boyer , UNDP Swaziland
Bipin Adhikari , UN MIT Dili, East Timor
Samuel Momanyi , UNICEF New York
Samuel De Jaegere , UNDP Niger and Alfonso Barragues, OHCHR Geneva
Alfonso Barragues , and Wan-Hea Lee OHCHR Geneva Guest Moderators
Munkbhat Nyamaa , UNDP Mongolia
Henrik Stenman , OHCHR, Cambodia
Luz Lopez Rodriguez , UNIFEM, Philippines
Urban Jonsson, International Consultant on HRBA
Guest Moderator Question Part III
Zanofer Ismalebbe , UNDP Geneva
Samuel De Jaegere, UNDP Niger
Michel Guinand, UNDP Ecuador
Annelie Rostedt, WHO, Geneva
Natia Cherkezishvili, UNDP Georgia
Maina David, UNDP Kenya
Yesim Oruc , UNDP Turkey
Guest Moderator Question- Part II
Daniel Seymour , UNICEF New York Guest Moderator (extension of Part 1)
Heather Barr, UNDP Burundi (extension of Part 1)
Doel Mukerjee , UNDP India (extension of Part 1)
Mika Kanervavuor i, OHCHR Geneva (extension of Part 1)
Eileen Moyle , Teresa Rodriguez, UNIFEM Mexico (extension of Part 1)
Asao Shimizu , UNDP Lao PDR
Eun-Chim Choi , UNDP Timor-Leste
Marcus Baltzer , Previously with UNDP Malawi
Teresa Rodriguez , UNIFEM Mexico
Asao Shimizu, UNDP Lao PDR
Simon Walker and Vittoria Berria , OHCHR Geneva
Fernando Mora , UNDP Mauritania
Noha Aboueldahab , UNDP New York
Gbemisola Akinboyo , UNICEF New York
Matt Pollard and Esther Schaufelberger , Association for the Prevention of Torture (APT), Geneva
Maymuchka Lauriston , OHCHR Uganda
Asao Shimizu , UNDP Lao PDR
Sinisa Milatovic , UNDP Serbia
Justine Assilevi , UNDP Togo
Lee Swepton , ILO Geneva
Suki Beavers, UNDP Pacific Centre, Fiji Island Guest Moderator
Benoit Pylysener and Christine Umutoni , UNDP Rwanda
Bipin Adhikari , UN Liberia
Sudarshan, UNDP Asia Pacific Regional Centre, Bangkok
Natasha Mistry , UNDP Albania
Guest Moderator Question- Part I
I. How Can Human Rights Mechanisms Contribute to Development Programming?
Involvement of UN Agencies :
Members were quick to point out that the recommendations of treaty bodies and SPs will only be taken account in national programming and policy making if they are well grounded in the country’s reality and directly linked to the imperatives of development programming. To attain this alignment the close involvement of UN agencies with the work of these mechanisms is crucial.
At a national level this collaboration can take a number of forms, including:
1. Taking part in key national programming events : Independent experts, (Treaty Body members and Special Rapporteurs) can be invited to take part in the critical milestone events when the CCA/UNDAF or transitional frameworks are being prepared; such as prioritization workshops or Joint Strategy meetings. This would provide an opportunity for the experts to critically examine the extent to which the UN is supporting priority human rights related issues.
2. Taking part in Treaty Body Sessions: As practiced by UNICEF in bringing their country representatives to the sessions of the Committee of the Rights of the Child (CRC), UN Country Teams (UNCT) should be encouraged to take part in Treaty Body sessions, especially pre-sessional meetings. Their input would serve to strengthen the recommendations by the Treaty Bodies. And the UNCT would be in a better position to follow up on the issues raised.
3. Confidential Reports: Another practical way of UNCT to engage in Treaty Body Processes, is to provide a confidential report to the Committee; as illustrated by UNIFEM Philippines in their experience of working with the UNCT to draft a confidential report to CEDAW.
4. ‘ In House’ Capacity and Commitment: A first step to engaging with the international human rights machinery, is building ‘in house’ capacity in human rights . As pointed out by UNIFEM Philippines , it was only after a series of meetings and education on human rights within the different UN agencies, that the UN initiated a three year UN Joint Program to Facilitate the Implementation of the CEDAW Concluding Comments. Moreover, unless there are champions for human rights programmes among the heads of UN agencies, it will be hard to take the process forward.
5. Including Special Procedures and NHRI in UNDAF : National Human Rights Institutions (NHRI) have an increasingly important role in creating strong human rights protection systems at country level. As such, if the UNCT include NHRI and Special Procedures in the UNDAF (UN Development Assistance Framework) and put aside resources to develop the potential of NHRI, then the link with the international human rights mechanism is “bound to be more effective and visible” (UN MIT East Timor).
The involvement of UNCT and UN agencies will not only result in more practical and implementable recommendations by the Special Procedures (SP) and Treaty Bodies, but it will also encourage greater ownership of UN agencies in these processes.
Other Suggestions from Members:
At a global level, members suggested a number of ways for how human rights mechanisms could provide additional guidance on how to operationalize international human rights standards and principles in development programming. These include:
1. Partnering with Development Agencies: At a global level, human rights experts can partner up with UN development agencies to work on how human rights can be operationalised; the work that the Special Rapporteur (SR) on the Right to Education did together with UNESCO and the Right to Education, and the work of the SR on the Right to Food and FAO on the Voluntary Guidelines to the Right to Food are two useful examples cited by members. However, members stressed that unless these documents are linked up with political processes, such as MDGs, they will not receive the Government Commitment that they need to ensure impact on policy making.
2. Integrating Human Rights into Poverty Planning Processes : As noted by UNDP Swaziland , to ensure human rights mechanisms are relevant to development programming human rights concerns and mechanisms need to be integrated into socio-economic thinking and planning. An example put forward is integrating human rights into the information on investment and/or livelihood creation schemes for those most at risk of HIV.
3. Using the Framework of the UN Common Understanding on HRBA : The UNDG has developed a Common Understanding on human rights based approaches (HRBA) to developmen t. If Treaty Bodies and Special Procedures used this framework in their analytical frameworks and assessments of the human rights situation in a country, it would help development actors better engage with their recommendations. Moreover, more coherence and consensus on human rights monitoring formats and frameworks developed by OHCHR and other human rights organizations is needed so as to avoid confusing development agencies.
4. Indicators: Human rights statistics and data offer a valuable tool for civil society, international NGOs and development actors to monitor a state’s compliance to human rights obligations and progress over time. Human rights data can also inform policy decisions to improve the human rights situation in a country. Presently, there is a dearth of intra-state human rights data that can capture intra-country trends in a meaningful way. Hence, UN agencies and development actors have an important role in improving state capacity to systematically collect disaggregated data on human rights compliance. To do so, they will need guidance from Treaty Bodies and Special Procedures on what data should be collected. Members emphasized the need for consistent and coherent guidance; as the different guidance being put forward by human rights experts in this area is confusing development practitioners.
5. Tools: Tools that identify and explain the core element of each human rights, would be useful for development agencies working to operationalise such rights; in particular those working in countries where the state has not reported to Treaty Bodies and thus have no Concluding Observations to refer to.
II. Engaging with Special Procedures
An Overview:
The experiences and insights shared by members show that the visits and recommendations of Special Procedures can have an important impact on national policy and country programming. Special Procedures can raise awareness on important human rights issues otherwise overlooked in development strategies and at times not recognised by the state or the international community. Their recommendations and processes can initiate and strengthen existing human rights related programmes. Most importantly, they can make a critical difference when they feed into concrete national processes dealing with legal, policy or institutional reforms.
In engaging with Special Procedures (SP), members identified a number of key ingredients necessary to fully capitalise on the opportunity that SP visits and recommendations provide. The greater the involvement of national actors- including governments- and UN Country Teams (UNCT) in the process of planning, carrying out and following up to visits of SP , the more these mechanisms will have an impact on national policy and country programming. Coupled with more knowledge on the roles of the SPs, the more UNCT will maximise the opportunity of their country visits.
Moreover, members noted that to engage Governments and development agencies more actively, quality standards for how SP undertake their country assessments need to be set. So too, efforts to improve the quality of the work that they produce should be encouraged. Poor quality reports can jeopardise any initial interest by development agencies and local governments to engage with the SP.
Country Examples of Engaging with SPs shared by members o:
UNDP Uzbekistan – UN Special Rapporteur (SR) on Torture
UNDP Niger -UN SR on Human Right Defenders and SR on the Right to Food.
UNDP Ecuador - UN SR on the Independence of Judges and Lawyers; Working Group on Arbitrary Detention; SR on the situation of human rights and fundamental freedoms of indigenous peoples; SR on the Right to Health
WHO Uganda - UN SR on the Right to Health
UNDP Kenya : SR on the situation of human rights and fundamental freedoms of indigenous people
UNDP Georgia- UN SR on Torture
UNDP Turkey- UN SR on Violence Against Women and the Representative of the Secretary General on Internally Displaced People.
UNDP Mongolia- UN SR on Torture
Good Practices and Suggestions from Members
1. Making the most of the visit of a Special Rapporteur:
National Ownership and Linkages with National Processes:
As emphasised by many members, national ownership is critical in the process of engaging with SP. Specifically, the visit of a SP will be effective if it feeds into a concrete national process. In Mongolia for example, the SR on Torture was invited to the country whilst the National Human Rights Commission was designing its national inquiry on torture. Through the visit of the SR and reference to the recommendations of the SR in the inquiry report, the needed political will to address the issue was generated. As a result concrete actions by the Government were taken.
Involvement of UN Country Team and Agencies :
Similarly, the successs of the visit of a SP to a great extent depends on the level of collaboration it gets from UN agencies. A high level of involvement will ensure ownership of the process, encourage the formulation of implementable recommendations; and follow up by UNCTs. Moreover, close collaboration between the Resident Representative and the SR is deemed “indispensable” (UNDP Turkey ) for ensuring that the visit is a success.
i) Preparatory stage : The experience of UNDP Kenya reflects the important role that UN agencies have at this stage. UNCTs, together with national counterparts can set up preparatory activities across the country to mobilise relevant interest groups, organise meetings with government and development partners, and plan field visits for the SR to assess the specific human rights situation related to their mandate. The experience of UNDP Ecuador illustrates one concrete mechanism through which UN agencies can collaboratively support the visit of a SR; for each visit of a SP, the UNCT establishes a UN support team and coordinator/focal point (UN staff whose work is closely related to the visiting SP mandate ).
Members noted that in preparing for a visit, the earlier the UNCT receives the TOR for the mission from OHCHR , the better they will be able to prepare.
i) Drafting of reports and making recommendations : As reflected in the experience of UNDP Georgia , consulting with UN agencies before the release of mission reports and recommendations can ensure the formulation of practical and implementable recommendation.
ii) Follow up to Recommendations : Members stressed that collaboration with the UNCTs and UN Agencies, throughout the process of SR visits, will encourage stronger buy in by UN agencies for assisting the Government in implementing follow up activities.
Commitment from Senior Management :
One of the key factors for ensuring follow up to recommendations is commitment from senior management. In Uzbekistan, it was through this commitment and leadership that the UN working Group in charge of follow up actions to the visit of the SR on Torture, was able to encourage the Government to agree to develop an Action Plan to implement the recommendations and to establish a mechanism to coordinate the implementation and monitoring of the Action Plan. The Plan was approved by the Primer Minister in March 2004.
Acknowledging Government Efforts :
As the SPs often deal with sensitive issues and/or visit countries with complex and challenging political environments, it is important that positive initiatives undertaken by the government are acknowledged and dialogue is maintained, so as to encourage the country to continue efforts in this direction. As noted by UNDP Uzbekistan “Continuous dialogue, without compromising on certain principles, may provide room to address drawback (or the “grey areas”) in the Plans and strategies, as one goes along with the implementation”
2. What is the Impact of SP on National Policy and Country Programming?
Placing Human Rights Issues on the Agenda :
Most importantly, at a national level the visit and recommendations of SP can put important but marginalised issues on the agenda. In Uganda, following the visit of the SR on the right to health, the CAP 2007 for Northern Uganda included for the first time a response to some of the neglected diseases faced by IDPs. A visit by a SP can also build awareness among civil society of human rights standards and mechanisms available to them; in Niger, through the visit of the SR on Human Rights Defenders, the media and NGOs became aware for the first time of the declaration on human rights defenders and used the Declaration whenever they were arrested or harassed.
At the level of UNCTs , a visit of the SR can push the UNCT to engage on sensitive issues that it has been unwilling or uncomfortable to take up with host Governments.
At an International level , it can help bring attention to a human rights situation under reported. The SR’s on the Right to Food last minute visit to Nigeria in 2005, sparked sudden unexpected international media attention and contributed to greater international awareness about the acuteness of the Nigerian food crisis. It was only after the visit of the SR, that the international community provided the greatly needed funds and support to deal with the crisis.
Strengthening existing programmes and providing an opportunity to initiate new programmes :
At a national level, the visit of a SP can have a critical impact. The visit and recommendations of the SR on the Independence of Judges and Lawyers in Ecuador directly resulted in a major UN coordination of efforts to support the national process of reconstitution of the Supreme Court of Justice in the country. In Uganda, the recommendation by the SR on the Right to Health for the Human Rights Commission to establish a right to health unit, resulted in the Commission creating such a unit in 2006. In Kenya the succinct proposals for improving the situation of Indigenous Peoples by the SR were shared widely with national counterparts and the “work done as a result of the SP visit was tremendous”.
At a programming level, recommendations can strengthen existing programmes or help initiate new ones in the field of human rights, the rule of law and other related areas. In Ecuador , UNDP has increased its specific programmes in the area of access to justice and public defence as a result of the visit of the RS on the Independence of Judges. In Mongolia the new UNDP Access to Justice and Human Rights Programme has been guided by the National Human Rights Action Plan, which captures many of the elements of the national torture inquiry that was strongly influenced by the mission and recommendations of the SR on torture.
An opportunity for Strengthening or Initiating Partnerships
In organising and following up to the visit of SR, partnerships between international and national NGOs, donors and government counterparts, can be encouraged and strengthened. In Uzbekistan , for example, UNDP partnered with Freedom House and HURIDOCS to provide training to civil society organisations , so that they could better support and monitor the Government in following up to the recommendations of the SP on Torture.
Build ‘in-house’ capacity on human rights :
As noted by UNDP Georgia , the close cooperation between UNDP and the SR was “very rewarding and interesting for the CO including myself, providing us with hands on knowledge, experience and advice on future programming in the human rights sector”.
3. Suggestions from members:
Various Ways to Engage with SRs : Members were quick to point out that there are other less formal ways of engaging with SRs than official fact finding missions upon Government invitation, which UN agencies and others should explore; As illustrated by the case of OHCHR Cambodia , SRs can be invited as resource person to specific events- workshops, seminars etc.; This provides a valuable opportunity for the SP to share their expertise and raise awareness on their thematic/country mandate. SP can also be invited to comment on project documents. This was noted as being particularly useful for ‘neutrality argument’: by basing projects on the recommendations of SR, programmes cannot be accused of being ‘partial’ to any NGO stakeholder or Government- it is simply the words of the expert with the mandate. As stated by UNDP Turkey, this almost makes programming “infallible”.
Country Questionnaires for Reports : The practice of asking UNCTs to provide information on specific human rights issues in a country, which then feeds into the yearly report of a SP, was found particularly useful by members, as the report could be later used as an advocacy tool within the country. Members encouraged the SPs to do this more regularly.
Build Awareness of SP : Fear from UNCTs that the visits of SPs can ‘enflame’ sensitive and tense relations with government is often the result of unfamiliarity with the system. Better awareness of SPs and their roles could encourage risk averse UNCTs to proactively engage with SPs.
III. Engaging with Treaty Bodies
The first part of the E-discussion focused on the Human Rights Treaty Body process. Questions were posed by the Guest Moderators related to each of the various stages within this process: ratifying international conventions, reporting to treaty bodies, implementing and monitoring the obligations. Part 1 of the discussion was extended for a further week so as to explore further and expand on what is working and what is not in relation to engaging with treaty bodies .
Country Examples of Engaging with Treaty Bodies shared by Members :
Albania
Burundi
India
Lao PDR
Malawi
Timor Leste
Mexico/LAC
Mauritania
Uganda
Serbia
Togo
Rwanda
Liberia .
Whilst specific recommendations and examples were shared for each stage of the process of working with human rights treaties, some recommendations are important for the entire process.
1. General Recommendations for Engaging with the Human Rights Treaty Body Process :
An opportunity to advance national dialogue on human rights issues: Members were quick to stress that the whole process of signature, ratification and implementation of a human rights instrument not only creates a set of obligations for the state, but also an opportunity to build a more open and trusting relationship between various actors at the national level. It brings together all stakeholders (civil society, state institutions, ministries, etc) to discuss the issues and work together to move the process forward. The UN agencies have a key role to play in facilitating this dialogue.
National participation in and ownership of the process ; As highlighted by the experiences of Timor Leste, Burundi, Serbia and Nigeria , national participation and ownership at every stage of the process ( signing, ratifying, reporting, drafting legislation etc) is crucial if obligations are to be implemented.
The crucial role of civil society and National Human Rights Institutions : The experience shared by members, underlined the crucial role that civil society has in the entire process of engaging with human rights treaties. UN agencies can work to support them to effectively engage. So too, National Human Rights Institutions (NHRI) can play an important role in both monitoring state compliance to its human rights obligations and helping it implement these obligations.
The crucial role of UN Country Teams (UNCTs): Members strongly emphasised the important role that UNCTs have in the entire process- in advocating with partners, such as the media, parliament, NHRI, civil society, children and other stakeholders, for the state to ratify and adhere to human rights instruments; helping develop the capacity of stakeholders at all stages of the process of engaging with international human rights instruments; and in acting as a facilitator for the creation or continuation of a national dialogue on human rights issues at the national level.
Note of Caution: As pointed out by the international NGO ‘ Association for the Prevention of Torture ’ there is a challenge facing UN field staff whose general mandate is not exclusively focussed on human rights when they undertake work in areas that could engage specific obligations of the state under international human rights law. To ensure that the UN does not fund and support programmes that inadvertently contravene human rights standards, it is important to identify the range of human rights obligations implicated in non- human rights specific projects from the outset; an early warning system, engagement of human rights experts, or a specific checklist were among a number of suggestions recommended for avoiding this pitfall.
Other Human Rights Mechanisms : As reminded by the contribution from the ILO , there is an extended family of the human rights treaty bodies, such as those of the International Labour Conference. It is thus important to take account of the full range of international human rights conventions, and not stop with those of the UN.
2. Encouraging States to Ratify Human Rights Treaties
Advocacy: The contributions from UN Mauritania , UNDP Lao and UNICEF Nigeria, emphasise the importance of developing a strong advocacy strategy to encourage the government to place human rights issues on its agenda. Strategic alliances with civil society organizations, the parliament and key governmental actors to prepare such a strategy will be necessary. An important element for any successful advocacy campaign will be highlighting to the government the benefits that ratifying a convention will bring to the country.
Capacity Development : Building the capacity of national institutions to engage with international human rights treaties is part of the advocacy strategy; for example, in UNDP Lao , a useful strategy for encouraging the Government to ratify international treaties, was working with and developing the capacity of the department of Treaties and Law at the Ministry of Foreign Affairs, which advise the Government on treaty ratification. With better capacities and technical skills, the Ministry was successful in advocating the government. It was also able to provide the international legal expertise and advice to other ministries who had a role in ratifying and implementing the treaties.
As well as developing the capacity of state to ratify treaties, the UN has an important role in assessing the capacity of the state for implementing the obligations; once capacity gaps have been identified then the UN can assess how to support the state in these areas and help them implement their obligations.
Participation: Whilst the UN has an important role in advocacy and capacity development, members strongly emphasised that the ratifying process should be nationally driven rather than internationally imposed. This issue was brought up in the example of Timor Leste, where following strong and effective advocacy by the UN, the state quickly ratified international human rights conventions. But implementing these obligations has been a serious challenge due to lack of capacity within the state. This led to the question from UNDP Timor Leste on “whether ratification is always the right thing to do, or is it better for a country to commit to a treaty when the time is right? Or is equipped to do so?”
New Convention : The above points should be particularly useful for members working to encourage states to ratify the newest human rights Convention- The Convention on the Rights of Persons with Disabilities (adopted in December 2006 and opened for signature in March 30 2006), which has as yet only been ratified by 1 state. UN agencies will have an important role in advocating and building the capacity of the state to ratify the Convention and implement it.
3. Encouraging States to Report to Treaty Bodies
Members stressed the importance of building national capacity to report to treaty bodies. Members shared their initiatives in this respect; for example, UNDP Lao, invited committee experts of CEDAW and ICERD to Lao to discuss the reporting process; and OHCHR Uganda commissioned a study on economic, social and cultural rights in Uganda and trained both civil society and government on these rights, (this they hope will encourage the state to report to the treaty body in charge of monitoring these rights). Moreover, as reflected in the example of UNDP Malawi , to encourage states to report, it is important that states do not feel they have to produce a ‘perfect’ report (which risks inhibiting it from ever producing a report), but that they are encouraged to produced a report based on the information they have; whether or not they have all the statistics and information needed. To encourage them in drafting the report, it is important to show that the report will be taken seriously by the UN in its work in the country.
The Role of the UN and UN Country Teams: As reflected in the example of Rwanda (which is 5 years overdue in reporting on 4 human rights treaties it has ratified), the role of the UN, and in particular UN Country Teams (UNCTs) is very important in encouraging states report to the treaty bodies. Rwanda has only reported on the Convention of the Rights of the Child, and this was in a large part due to the efforts of UNICEF. The members from UNDP Rwanda note “we believe the UN Country Team can play a more active role in supporting the Government to strengthen its reporting capacities”. So too, as recommended by UNIFEM Mexico , the UNCT can help disseminate state party reports and the concluding observations from treaty bodies to legislators, the judiciary and civil society.
Strategies for reporting : Members shared different strategies that have been effective in helping states in the treaty body reporting process; NHRI and civil society have an important role to play in this process and can be supported to do so by UN agencies; for example UNDP Rwanda is supporting the idea of creating a coordination framework for human right in which the NHRI, civil society organisations and development partners are represented- one of the roles of the coordination framework will be the elaboration of treaty body and draft reports. Specific inter-ministerial committees may also be useful; for example, in Togo, various committees have been appointed to help draft the reports, with an inter-ministerial committee in charge of the final draft; however, due to the slowness of the process, they are now attempting to merge the committees into the one inter-ministerial committee.
4. Helping States Implement and Monitor Obligations:
As noted by members, the biggest challenge faced by governments in the human rights treaty process, is implementing these provisions. In this respect, the UN has an important role in empowering civil society and the state to engage in the treaty body reporting process and to implement and monitor human rights obligations.
A central part of the empowerment process will be the need to inform and train public authorities on the Convention and disseminate it widely among the public. Not only is training on the Convention important but also on the recommendations made by the treaty bodies; OHCHR’s Treaties and Council Branch is facilitating this process through a training project it is implementing to create follow up activities to treaty body recommendations. The basic idea of the project is to create a group of national actors that work together, with their respective rolls and activities, towards the common goal to further enjoyment of human rights in their respective countries. The “subject” for getting the different actors together is the treaty implementation and reporting process and in particular a discussion around the recommendations from all treaty bodies on the respective country. The contribution from Uganda illustrates how this has worked in practice- OHCHR Uganda organised a workshop at the national level with representatives of the government, NHRI , civil society , media and UN agencies to look at the recommendations made by the treaty bodies and see how they can be better implemented. Subsequently a committee was set up, based on the recommendations of the stakeholders, to help implement the obligations of the treaty bodies.
Advocacy and awareness raising are also important elements for pushing authorities to take concrete action to better implement their obligations. Concrete steps that states following such advocacy, include setting up a National Human Rights Institution , creating a special Secretariat to monitor and help implement treaty obligations; and, as in the case of Liberia, develop a National Human Rights Action Plan : such a plan can serve as a major instrument in implementing international standards through specific programmes and strategies.
The work of UN Agencies and UNCTs:
As well has having an important role in advocacy and training of stakeholders, members pointed out that in its own work at country level, the UN needs to ensure that human rights norms and the recommendations from treaty bodies are reflected in its policies and programmes. Recommendation from treaty bodies can be particularly useful to the UN in helping determine the priority areas for advocacy in the country.
Moreover, members stressed that the UNCTs involvement with OHCHR and treaty body activities at the country level is crucial. The UNCT can act as an engine and facilitator for the creation or continuation of a national dialogue on specific human rights issues at the national level. Specifically, UNCTs can support and strengthen NHRIs, provide technical assistance on the ratification and implementation of international instruments and raise awareness on these issues.
Oversight Mechanisms:
NHRI: UNDP India and other members emphasised the important role that NHRI can have as oversight mechanisms for helping states implement their obligations. For countries such as India, which have ratified the conventions and have a good legislation, but face a challenge in implementing their obligations, NHRI can take proactive measures to hold the state accountable. Crucial for the ability of the NHRI to carry out this role efficiently is its independence. If the NHRI is perceived as an extension of the government itself (with staff made up of retired civil servants and ministerial appointments), it may still act as part of the government. It will thus lose credibility in the eyes of civil society. As a result civil society may keep its distance from its activities.
Civil Society: Having an educated and strong civil society that can continuously prepare shadow reports, monitor state performance and policy, and advocate among the public and government is also crucial to hold the state accountable for implementing its obligations. Educating civil society, the media and the public on human rights norms is therefore crucial.
Media: An educated media (on human rights norms and state obligations) is a powerful instrument for holding to account law makers, parliamentarians and other institutional staff on their obligations.
Parliaments: To encourage states to implement their obligations, UN agencies can target potential ‘actors for change’ in the Parliament and other state institutions, developing their capacity in human rights norms and helping produce change from within.
Incorporating International Human Rights Obligations into Domestic Legislation:
An integral part of implementing human rights obligations is ensuring that national law is consistent with international human rights standards. In working on law reform, as noted by UN Mauritania , a real strategy and expertise in the area is needed. States may decide to set up an ad hoc Commission that is responsible for this process, which is made up of key institutions and civil society. Undertaking a substantive study on harmonising national law with international human rights obligations has also been found to be useful.
Other Important factors to take into account in working towards law reform include:
Government Ownership Revising laws is a sensitive issue and therefore real government buy in is essential. As illustrated by the example of Burundi, a careful balance between government ownership and UN input provides a good model for how the UN can assist a government in bringing national law into compliance with international standards. In Burundi, this was achieved through a couple of key factors:
- Real government ownership - although the work was financed and managed by the UN, the Minister of Justice selected the committee that prepared the revisions of the law in collaboration with OHCHR.
- Respected national staff - staff from OHCHR responsible for the project were well recognised former members of the judiciary and well respected by the Government. Moreover, in Serbia, where international human rights obligations are directly applicable in the national context, having the trainers of the judiciary which were ‘one of their own’ - national judges and prosecutors- was found to be important in confronting the resistances by duty bearers to direct implementation of international treaties.
Participation : In creating a new law, the need to consult a wide variety of stakeholders and experts, and ensuring the voice of vulnerable groups as well as government experts is heard was emphasised by members.
Confronting the Challenges: One of the biggest challenges of law reform is creating systems that can realistically be upheld. This is a challenge that was faced by UNDP Burundi, specifically: “how to be faithful to international laws and standards without creating systems that are widely unrealistic in a country as poor as Burundi “. Working in countries where poverty is widespread, education and literacy levels are low and capacity of the legal force is weak, enshrining laws that require significant funds and capacity to be upheld is a challenge. UN and Governments will be faced with the challenge of determining what is achievable and what is not in the national context. Another challenge confronted in the process of harmonising national law with international human rights law, are the clashes with national customs and law; for example in the case of shari’a law. In such contexts, members stressed the need to recognise and understand people’s sensitivities and address these accordingly in the advocacy strategies and actions pursued.
Support from UN Programmes: Finally, the UN must make a real commitment to helping the government implement these legal reforms through its own future programmes- such as justice reform.
Responses in full :
Hanne Lund Madsen , Human Rights in Development Consultant, Denmark, wrote:
Dear Colleagues,
A number of recent cases that I have come across in my professional work urges me to call for the development of quality standards for the assessments performed by the SPs both with regard to analytical methodology, data treatment, assessment process & participation, transparency and accountability. Reports of poor quality could easily erode any first interest by development agencies and local governments to engage more actively with the TB/SP. Linked to this is an encouragement to focus more on/systematic efforts to improve the quality or setting quality benchmarks for the work of the SP's as they work in their "own independent capacity".
While there are a host of factors determining the constructive engagement between the development community and the TB/SP I would like to recommend that the TB/SP make effort to use and elaborate on a rights based approach in their analytical frameworks and assessments of progress/regression. It may be argued that the TB/SP work per se is rights based. However, a common understanding is now developing within the development community of certain steps and analytical frameworks in human rights based programming. It would thus be extremely helpful if the TB/SP could use or make reference to this planning framework and help developing it further.
The UNDG Common Understanding on Human Rights Based Approach calls for making systematic analysis of the respect, protection and fulfilment both within substantive standards and within the process rights or key human rights principles. Next, to undertake a systematic duty-bearer analysis including a duty-bearer chain assessment. Finally, to undertake a capability analysis of both the concerned rights-holders and of the relevant duty-bearers to establish the progress or shortcomings in terms of capabilities to comply and the possible assistance needs. If TB/SPs could use this framework more systematically it would help building an important bridge between TB/SP and development interventions.
What are development agencies expected to do in their eagerness to adopt a rights based approach to education and start monitoring performance or violations accordingly? Well, the former UN Special Rapporteur on the Right to Education suggested a monitoring format according to the dimensions of availability, accessibility, acceptability and adaptability (The Four A’s), while the latest guidelines issued by the Office of the High Commissioner for Human Rights on a Human Rights Approach to Poverty Reduction Strategy Papers presents 8 Key Targets with 23 corresponding indicators. While these two formats in no way contravenes the letter and intention of the relevant articles of the relevant conventions it would be beneficial to arrive at a larger degree of consensus - without creating monopoly – on which monitoring formats key human rights institutions are using.
In terms of indicator use in measuring progress and regress the situation is also very confusing for the development practitioner. Not only because the contemporary discourse on indicators in general is complex and confusing, but also because there is no answer given from the authoritative human rights organs about what the development planner should be looking for. The manuals mentioned earlier by Nahem do often apply different perspectives and different categories. Indicators related to the trinity of obligations in terms of respect, protect and fulfil would help bring out the constituent characteristics of human rights. However, recent suggestions to apply the traditional indicator categories used in social development (structure, process and result) also seem to gain prominence. The way forward may be a combination of the two as is currently proposed by COHRE (Monitoring Implementation of the Right to Water – A framework for developing indicators). In any case, clarity, consistency and clear messages will help the up-take within the development community a lot.
Munkbhat Nyamaa , UNDP Mongolia wrote:
Dear colleagues,
As mentioned in many other previous interventions during this interesting discussion national ownership is critical both in engaging with the international human rights machinery and in the process of development programming.
As an illustration I would like to offer the following example from our programming practice. While the National Human Rights Commission of Mongolia was designing its national inquiry on torture (2005-2006) it became palpable that the issue, though long public knowledge in the country, receives support from the international community to encourage a more responsive government. Overall the success of the national inquiry had depended on many variables often outside the control of the national institution. For instance, intricate procedural steps to deliver an invitation and fitting in to the demanding schedule of the Special Rapporteur has been a true challenge on itself for the Commission. At the end parliamentary hearings on the findings of the inquiry report, which had strong reference to the Special Rapporteurs mission report (2005), resulted in generating strong political will to address the issue, in particular through appointing an inter-ministerial working group for aligning national legislation with provisions of international human rights instruments and allocating extra-budgetary means to law enforcement agencies. In a parallel development the NHRAP Operational Plan (2006-2008) had captured among other human rights issues the main essence of the parliamentary resolution (2006) on the torture inquiry. The operational plan in turn had served as one of the important national policy frameworks to develop the new UNDP Access to Justice and Human Rights Programme (2007-2009).
On the second point, I would like to share some comments on Country Profiles prepared by OHCHR as part of the Action 2 initiative. These profiles are useful tools in both preparing analytical and substantive programming documents at the UNCT and in the design and execution of agency specific thematic advocacy campaigns. The content of country profiles could be enhanced to maximize inter-agency cooperation by updating/enriching the document with, for example, situational analysis section from CCA and relevant components of UNDAF, when available and upon consultation with UNCT. Additionally, a brief HRBA review of country programming documents could also become part of the country profile. Apart from the UNCT such information could be of value to the treaty body committees. The process of preparing country profiles in a consultative and participatory manner may ultimately lead to improving United Nations human rights related action at the national level.
Joachim Nahem , UNDP Oslo Governance Centre wrote:
Dear colleagues,
One important aspect in this rich e-discussion which has not been covered is the role of statistics and indicators with regards to treaty compliance and the human rights machinery in general.
The OHCHR has taken steps forward in this respect through developing a conceptual and methodological framework for identifying quantitative indicators for monitoring compliance by state parties with international human rights treaties. See HRI/MC/2006/7.
So too, the UNDP 2006 “Indicators for Human Rights Based Approached to Development: A Users Guide”, highlights 4 critical areas for using indicators to evaluate development programmes from a human rights perspective: http://www.undp.org/oslocentre/docs06/HRBA%20indicators%20guide.pdf .
(i) Understanding the human rights situation at the country level through the identification and use of indicators that can be used to provide an assessment of the baseline human rights situation.
(ii) Understanding the capacities of individuals and groups as ‘rights holders’ to claim their rights as well as the capacities of state institutions as ‘duty bearers’ to promote and protect human rights on the ground .
(iii) Identifying and using indicators for ensuring the incorporation of human rights principles in the design, implementation and monitoring of UN[DP] programmes
(iv) Identifying and using indicators to determine the likely impact of programmes on furthering human rights in the country
The Guide goes on to provide methodological and practical advice in the individual areas, thus making a serious attempt to operationalize human rights standards with regards to data evidence. It seems to me that that the first area is particularly germane when it comes to treaty body compliance. Several colleagues have mentioned how the recommendations made by treaty bodies provide concrete entry points (and in some cases talking points…!) when addressing the human rights situation in a country. If these recommendations are to improve anything, however, it is essential that countries (with support from the UN, civil society and other stakeholders) collect, analyze and monitor human rights data. If the CRC Committee describes country X as having improved the situation of juvenile offenders by reducing the rate of time spent in detention centres but has not been able to reduce the level of violence against street children it is essential that these observations are translated into quantitative terms and baselines for which the country can be compared to over time (e.g. counting progress/regress through administrative records, interviewing offenders, proxy indicators etc.). Most of the international sources on the human rights situation in a country are either analytical (e.g. Human Rights Watch/Amnesty) but not really quantifiable (although there are data sources that code the latter such as Cingranelli et al, political terror scale etc.) and they are all too aggregate (e.g Freedom House which also has severe political and methodological challenges as a human rights index) to discern or capture intra-country trends in a meaningful way.
Hence, the key here both from a methodological and political point of view is for countries to improve their capacity and in many cases willingness to systematically collect disaggregated (e.g. institutionally/ministries, demographically, thematically etc.) data on human rights compliance. In countries where there are human rights institutions such outfits should play a key role in this context. Statistical offices (as purveyors of official data in a country) should also be given a mandate to collect and disseminate governance data including that on human rights which could be compared to civil society/academic data collected (similar to the shadow report mechanism used for treaties).
The second important part of using indicators in the human rights context is with regards to policy-reform. Policy-decisions to improve the human rights situation in country should derive from empirical and robust evidence obtained by data, statistics and indicators. This is admittedly not straightforward, for example, the chosen policy solution to human rights violations with regards to incarceration (overcrowded jails, poor sanitation etc) may be to build more prisons rather than increasing efficiency and fairness of trial adjudication (i.e. addressing human rights violations as a chain of institutional processes rather than just fixing the one at the end). In general though there needs to be more systematized knowledge on human rights in a country in order to make well-informed decisions (may sound evident but the dearth of human rights data in most countries imply that this is not taking place).
There is obviously much more to be said about the above but I thought I would just share these initial thoughts for how we rise to the challenge of operationalizing human rights principles. There are many other actors and sources active in this field including OHCHR Research and Development Branch (as mentioned above) and the OECD/Paris 21 initiative of Metagora ( www.metagora.org )
Joachim Theis , UNICEF, Asia Pacific wrote:
Dear Colleagues,
Here are a few ideas to contribute to this important debate.
The CRC Implementation Handbook is a good example of a detailed commendatory for each article of the Convention on the Rights of the Child.
It makes a legal text accessible to non-lawyers.
The work Katarina Tomasevski did together with UNESCO (and others: SIDA,
UNICEF...) on the Right to Education shows the benefits of close collaboration between a lawyer and Special Rapporteur on the right to education on the one hand, and technical agencies in the field of education on the other. There is a rapidly growing body of such literature on human rights-based approaches to a wide range of development issues. The next step is to link these documents to political processes to disseminate the documents and to turn them into greater government commitments (e.g. MDG, EFA, WFFC...). Without such processes the documents often end up being little more than reference documents.
The publications of the Inter-Parliamentary Union are good examples of operationalising human rights for a particular audience. These publications are collaborative efforts by the IPU and other agencies - depending on the topic (e.g. Red Cross and UNV on volunteering, UNHCR on statelessness, UNICEF on child protection).
The CRC Committee is supporting the development of a General Comment on Article 12 of the CRC (children’s' right to expression). Last September a day of discussion was held in Geneva that brought together many different views and experiences (including those of children) on the topic. A consultant is now preparing a draft of the General Comment.
One particular area where children's civil rights have been operationalised is birth registration. Birth registration and civil registration are being promoted through a global campaign by UNICEF and Plan International (and others).
I am currently involved in an initiative to operationalise children's civil rights. This has grown out of the work on children's participation and is an attempt to convince governments to do more to promote children's civil rights and citizenship. We are in the process of defining a clear agenda that speaks to politicians. The effectiveness of this initiative will depend on the success of building a broad-based movement for children's civil rights.
Operationalising human rights principles and standards is one particular approach to mainstreaming human rights in development. There are two other overlapping) approaches: incorporating human rights principles (accountability, participation, universality and non-discrimination, indivisibility) in the programme cycle from analysis to planning, implementation, monitoring and evaluation. The UNDAF process is an example of how this is being done. NGOs, such as Save the Children and CARE have developed similar approaches. On its own, this is probably the least effective way to promote human rights in development: a) because it focuses on human rights principles and not on human rights standards, and b) because it does not search for new ways to challenge existing power structures. A third way to promote human rights in development is the use of 'new' methods in development programming, such as: access to justice, right to information, social auditing, participatory budgeting, public interest litigation, independent human rights mechanisms etc. to challenge systematic injustices and inequality.
Bipin Adhikari , UN MIT Dili wrote:
Unless I have missed it some way, I do not find any of us emphasizing the role of the UN Country Team (UNCT) in establishing the link between a national human rights institution (NHRI) and the special procedures available to a country. I find this link is so important because NHRIs play an ever-growing role in the setting up of strong national human rights protection systems at the country level, something which is at the heart of the implementation of the OHCHR Plan of Action and the SG’s past reform programs. They are key in connection with action on good governance, rule of law and human rights and central to effective implementation of programs in these areas. As UNCT in each country is composed of the heads of UN agencies and other institutions represented there, it is responsible for monitoring the overall implementation of the UN Development Assistance Framework (UNDAF), the planning framework which outlines the common objectives and strategies shared by all UN organisations providing development assistance to the host country. The UNCT also monitors the linkages between UNDAF and the formulation of programmes and projects by each of the resident UN agencies as well as the development of any joint initiatives. Each agency reflects the goals and objectives of the UNDAF strategy within their own programmes, and are expected to share their programmes with the UNCT as a means to explore possibilities for cooperation. If NHRIs and special procedures are included on the agenda of UNDAF and UN country team, and resources at the disposal of UNCT are tapped to enhance the potential of NHRIs, the link with the international human rights system will be bound to be more effective and visible. In fact, the National Institutions Unit of OHCHR has already taken some initiative in this area. This no doubt is a very positive development.
Dear Colleagues,
This e-discussion and questions posed comes at a time where the government of Swaziland has pledged to establish a commission on human rights and public administration, which has been mandated by the 2006 constitution. The functions of this commission include 'investigate complaints concerning alleged violations of fundamental rights and freedoms under this constitution'. In the context of how UN HR machinery can be made more useful for development programming, I think that more emphasis can be made on the links between poverty and human rights, and that although we know that increased violations of human rights often coincide with a deterioration in socio-economic conditions, there doesn't seem to be the interchange between those organizations expressly working on issues of human rights, and those working in the area of development.
To provide a more concrete example, the UN system is Swaziland is grappling with the pervasive stigma against HIV+ individuals. This is especially true for women, who are afraid to reveal their status to the partners and families for fear of being abandoned, disowned, stripped of assets/social status and literally thrown into the street. The fear of one's HIV status being revealed has entailed that many pregnant women, although having tested HIV positive, have refused to enroll for follow up treatment ante/post-natal treatment (PMTCT) that could reduce the possibilities of their children being infected. Although seemingly illogical, it is the fear of being exposed and the heavy weight of stigma that forces women into this predicament. To address this basic human right, the right to live in dignity and free of discrimination, it presumes that individuals, in this case women of Swaziland, have the economic wherewithal (i.e. livelihoods that allow them to be economically independent) to care for themselves and their children and also access services and resources available to HIV+ members of society.
Unfortunately, we (the UN system) haven't done a sterling job of integrating these issues. One way forward would be to develop HIV Impact Assessment tools (in the same manner as the Environmental Impact Assessment tools) where we could look at those groups who are most at risk (such as young women aged 15-29, geographical areas where there are high rates of HIV prevalence, or heads of families where a spouse has died due to AIDS or an HIV related infection, etc.) and integrate information into investment and/or livelihood creation schemes. This would expand the concept of human rights, so that HR is not seen from merely a conceptual mechanism that is often detached from the very real challenges faced by the most marginalized, to incorporating HR into the economic and financial decision making processes that often bear ultimate responsibility for the most egregious human rights violations.
Sam Momanyi , UNICEF, New York wrote:
Dear Alfonso,
I have one suggestion to make which is borne out of my field experience and previous interaction with the Committee on the Rights of the Child in Geneva. I would suggest that an arrangement be made for some of the committee members (especially country rapporteurs) to be involved and participate in critical milestone events when the CCA/UNDAF or transitional frameworks are being prepared. This could be at Prioritization workshops or Joint Strategy meetings. Their inputs and "independent views" would add an important voice to the process. They would critically examine the extent to which the UN is supporting priority human rights-related issues raised in the Treaty Bodies reports such as CEDAW Concluding comments or CRC concluding observations..
Let me know if you need further clarification on this suggestion.
Samuel De Jaegere , UNDP Niger and Alfonso Barragues , OHCHR Geneva, exchange:
Dear Alfonso,
Thanks for making a reference to Niger’s experience concerning the right to food.
In response to your second question, sometimes a UNCT lacks guidance from Treaty Bodies and Special Procedures- in the albescence of state reporting and/or detailed information reaching these mechanisms. In the case of Niger, for example, no concluding observations exist from the Committee on Economic, Social and Cultural Rights, nor from the Committee Against Torture, nor really from the Human Rights Committee (as the last HRC Concluding Observations date back to 1993 in a different political context).
In such a case, the UNCT is left with the Conventions, with rights included and guidance from general comments and/or other legal interpretations. For practitioners, it would be interesting, to get an overview not only of the rights (in their broad formulation), but also of their minimum content. For example, the right to education, what aspects are comprised? The right to health, what minimum standards?
A reference work with all these rights and their minimum content (according to Treaty Bodies and Special Procedures) would be a useful tool for development practitioners.
Thanks,
Samuel
Response from Alfonso Barragues:
Dear Samuel, The point you raise regarding the operationalization of human rights norms and standards is core to a human rights-based approach to programming. Treaty Bodies issue general comments to clarify the meaning of international standards contained in their respective treaty. The Committe of Economic, Social and Cultural rights has issued a set of very important comments in that regard: http://www.ohchr .org/english/bodies/cescr/comments.htm In addition to their country reports, Special Procedure thematic mandate holders also issue annual as well as specific thematic reports in which they document examples of "good practices" and analyze specific challenges and developments regarding the operationalization of certain rights: http://www.ohchr .org/english/bodies/chr/special/annual.htm Response from Samuel De Jaegere:
Dear Alfonso –
Thanks for your helpful links to the Treaty Bodies general comments and the Special procedures annual reports. These are very interesting resources. However, the difficulty is their exploitation. For a development practitioner who is unfamiliar with the International HR Machinery, it may be difficult to find the parts of interest to his work.
A reference work, with the human right's article and immediately followed by a commentary would make it easier to understand the duty bearers obligations and specific rights of rightholders. For example, for the right to education, the work done by the late Special Rapporteur, Ms Katarina Tomashevski on the 4 A's: Access, Adaptability... it would make it easy and user-friendly to have a work with the right to education and immediately followed by the commentary of the SP or general comments by TB. And this could be done for all human rights.
A compendium of the human rights and their minimum normative content supposedly exist - a colleague of us, Patrice Vahard ( PVahard@uneca.org ) told me - but I've not been able to lay a hand on it.
Maybe it's an informal resource of the OHCHR?
Final response, Alfonso Barragues:
Dear Samuel, It is true that TB General Comments- as well as observations and recommendations in general- tend to be written in legalistic terms, therefore being difficult to understand for development practitioners. I am afraid this type of language cannot be avoided because General Comments are precisely legal interpretation of legally binding international obligations. OHCHR and other UN agencies are producing specific tools to facilitate the understanding and applicability of TB and SP outputs. For example, WHO is working jointly with OHCHR in the production of a manual on Health, human Rights and Poverty which builds on the normative content of right to health as established in the Covenant on Economic, Social and Cultural Rights and the clarification provided in general comment No. 14 . FAO, for example has developed a number of tools on right to food based on Committee on Economic Social and Cultural Right’s general comment No. 12 and many of the "good practices" on protecting and fulfilling the right to food, gathered by the Special Rapporteur on Right to Food in his visits to countries like Brazil, India, Uganda and South Africa.
Based on the guidance of human rights standards and the General Comments, OHCHR is in the process of developing sets of indicators to measure States' compliance with human rights, including on right to food, torture, life, participation in public affairs, rights in the administration of justice, education food and health.
In conclusion, more tools are still required in order to maximize the use of the important output produced by Treaty Bodies and Special Procedures. However, the absence of a specific tool should not prevent you from using these comments, recommendations and reports as sources of technical assistance whenever an opportunity arises to influence legal, policy or institutional reforms, and UN programming processes at the country level. Your idea is well taken and will be shared with the concerned branches in OHCHR and colleagues from other UN agencies in the Action 2 Programme.
All the best
p.s. OHCHR has made a compendium of general comments. I will check with the colleague you mention in your email to find out whether we are talking about the same document Alfonso Barragues , OHCHR, Geneva wrote:
Dear Colleagues,
As we approach the end of our discussion, both the diversity and quality of inputs so far received show the UN's commitment in different parts of the world in supporting national processes for the ratification, implementation and monitoring of international human rights instruments.
The last part of the discussion has also shown the operational challenges of translating this rich normative framework into concrete action as well as the great potential in using the recommendations of international human rights mechanisms, including Treaty Bodies and Special Procedures, as substantive programming tools to read national development challenges from a human rights lens.
The experiences shared show not only that the observations of Treaty Bodies and Special Procedures can raise awareness on important human rights issues otherwise overlooked in development strategies. Also, these recommendations can make a critical difference when they feed into concrete national processes dealing with legal, policy or institutional reforms.
Before closing this month of fruitful discussion, we would like to invite participants to take a final opportunity to formulate any additional suggestions and comments:
- In your position as development practitioners, what suggestions would you make to Treaty Bodies and Special Procedures so that their concluding observations and recommendations provide you with additional guidance on how to operationalize international human rights standards and principles in development programming? For example, our colleague from Niger explained how the Special Rapporteur on Right to Food was able to identify and analyze during his visit the root causes preventing the realization of right to food in Niger.
- In addition to more analytical reports, what type of information and recommendations would you appreciate in your advocacy and programming?
Your feedback will be shared with Special procedures Mandate-Holders and Chairpersons of the Treaty Bodies at their respective annual meetings in June 2007. Additionally, these suggestions and the outcome of the whole discussion will be shared as well as with the OHCHR secretariats of all Treaty Bodies.
Henrik Stenman , OHCHR, Cambodia wrote:
Dear colleagues,
I have followed the vivid discussion about how to best engage UN human rights mechanisms in programming on the ground with great interest, and I agree with much that has been said. The concluding observations by treaty bodies and recommendations by special procedures mechanism do potentially offer a very valuable source of input for programme planning. However, in this forum it is hardly necessary to point out that the scope for recommendations from the treaty bodies and special procedures mandates to be factored into development programming is largely determined by the extent to which the work of these bodies is aligned to the realities on the ground and address the actual priorities in any given country situation.
At present considerable disparities exist in this regard, and serious efforts are underway to assist the mechanisms to make their conclusions and recommendations more grounded and directly linked to the imperatives of development programming and humanitarian action. A closer involvement of UN partners in this work could drastically improve the quality and relevance of the conclusions and recommendations put forward by the treaty bodies and through more intimate ownership also build a better basis for systematic follow up and implementation by UN agencies in the respective programmes. It is also worth remembering that some State Party reports are several years old, which could render treaty body observations irrelevant, especially with regard to countries in crisis or post-conflict situations, where the core issues may change dramatically in a relatively short period of time. This underlines the need to support and facilitate the submission of overdue reports. OHCHR through its field presences or in the absence of such through its geographic desks have an important role in actively engaging UNCT members more closely in briefing treaty bodies and in the follow up to concluding observations and recommendations. In order to strengthen the link between UNCTs and treaty bodies, it is important that OHCHR find ways of facilitating and encouraging the participation of UNCT members in treaty body sessions, especially pre-sessional meetings, and maintain close working relations to keep them involved throughout the reporting and implementation cycle. This could be seen as a kind of cycle in which pre-sessional input from UNCT members serve to strengthen the recommendations by the treaty bodies, after which the UNCT are in a better position to follow up on the issues raised through assistance to the government. Through its experience of working with government partners on the implementation of treaty recommendations, the UNCT should then in turn be better positioned to give feedback to the respective treaty bodies on the recommendations, progress on implementation and any adjustments needed in order to sharpen focus and applicability.
UNICEF’s experience in bringing their country representatives to CRC sessions could serve as a good model for this. In the same vein, treaty monitoring bodies should be encouraged to seek invitations to visit countries of particular interest or relevance, which would provide valuable opportunities to bring the work of the treaty bodies closer to the ground, improve awareness of the treaties and for committee members to gain first-hand experiences of how their work relates to and affects people's lives.
As regards the thematic mechanisms, pretty much the same thinking applies. UNCT members in cooperation with OHCHR offices or geographic desks should be fully involved in both the planning and carrying out field missions. With the agreement of the mandate holders, they could also play a very helpful role in the formulation of practical and implementable recommendations in mission reports. This again would help ensure stronger buy-in by UN agencies and motivate a more active role in assisting the governments in the implementation and follow up to reports and recommendations. However, thematic mandate holders do not necessarily have to carry out full official fact finding mission upon government invitation (which is sometimes hard to obtain) to make a valuable contribution. The special rapporteurs etc are experts in their respective areas and are often excellent resource persons to invite to specific events, such as workshops, seminars, conferences etc. This is a more low key and less formal way of engaging the mandates at the country level, but it often offers a very valuable opportunity for the experts to share their knowledge and experience and also to raise awareness of their mandates and the issues they are working with, but without necessarily making an in-depth assessment of the situation in the particular country they are visiting. We have had a couple of recent and successful examples of this in here in Cambodia with the Special Rapporteur on human rights defenders and the Special Rapporteur on indigenous people.
Luz Lopez Rodriguez , UNIFEM, Philippines
Dear Colleagues,
I am the Philippine national coordinator of the UNIFEM CEDAW South East Asia Program since 2004 and recently took on the role of Managing Agent, in behalf of UNIFEM, of the UN Joint Programme to Facilitate the CEDAW Concluding Comments in the Philippines. This is a most recent initiative of the UN in the Philippines that directly responds to the concerns raised by the treating monitoring body of the Convention on the Elimination of All Forms of Discrimination Against Women.
1 CEDAW in the Philippines
1.1 The Philippines ratified the CEDAW Convention in 1981 and its Optional Protocol in 2003. The government rendered its 5th and 6th Combined Progress Report to CEDAW in August 2006. The CEDAW Concluding Comments urged the Philippine government to enact laws that define and eliminate gender discrimination. It enjoined government executives to include provisions to support women's human rights in national and local plans, budgets, programs and services, monitoring systems and reports. It recommended priority action on violence against women, trafficking in women and protection of migrant women workers. It advised on accelerating women's equal political participation through temporary special measures and enhancing women's access to sexual and reproductive health services, especially among the indigenous, rural, Muslim women.
1.2 UNIFEM, through its CEDAW South East Asia Program, initiated the awareness-raising campaign on CEDAW and supported the technical preparation of the government report and the NGO shadow report. The UNCT also responded to the guidelines on the submission of a confidential report to CEDAW and given only two weeks' notice, submitted for the first time its own report. The technical work for the UNCT report was prepared by the UN-Gender Mainstreaming Committee, a dynamic technical working group composed of gender focal persons from various UN agencies and led by UNICEF during the inception of the joint programme.
2 UN Joint Programme on CEDAW Concluding Comments
2.1 The UN Joint Program to Facilitate the Implementation of the CEDAW Concluding Comments is a three- year comprehensive program that runs from 2007 to 2009. It is supported by pooled fund contributions from UNDP, UNICEF, UNIFEM, UNFPA and UN-Habitat. It aims to enhance the capacities of selected national stakeholders in implementing the 2006 Concluding Comments of the CEDAW Committee in the areas of (a) policy advocacy for the enactment of laws and policies that comply with CEDAW, (b) monitoring policy and program implementation at the national and local level to inform policy advocacy, (c) sectoral and local application of CEDAW to the rights of indigenous women; and (d) mainstreaming gender and human rights in UN agencies and programs. It hopes to catalyze positive progress in women's human rights that will be reflected in the Philippine reports on the Millennium Development Goals, on the Beijing Platform of Action and in the 7th and 8th Philippine periodic report to CEDAW due in September 2010.
2.2 The lead implementing partner for this joint program is the national women's machinery, the National Commission on the Role of Filipino Women, which will co-implement the program with partners from women NGOs; sectoral women's groups from the indigenous, rural and Muslim women; and women's studies and research centers in the academe.
2.3 Another interesting component of the program is the coaching and mentoring the UN program staff on mainstreaming gender and development (GAD) and human rights (HR) in development programming. This will include the conduct of GAD and HR audit of UN organizations and selected projects.
3 Initial Challenges and Lessons
3.1 There is a need to invest in continuing human rights education and dialogue among UN program staff and heads of agencies. The joint programme on CEDAW may not have been hatched if it were not for a series of meetings and education sessions steered by the UN - Gender Mainstreaming Committee. This process is continued by raising the gender bench mark through the conduct of GAD/ HR audit of UN programs and agencies.
3.2 There is a need for top-level GAD champions among the heads of UN agencies. In the present case of the Philippines, UNIFEM is not yet a resident agency and has only small project office. Fortunately, the UNICEF Country Representative who chaired the gender working group, helped steer the agenda of the UNCT in favor of establishing the joint programme on CEDAW.
3.3 The experience of preparing the UNCT confidential report to CEDAW helped heighten awareness on CEDAW and women's rights issues and built inter-agency ownership of the Concluding Comments. However, It would have been better if the reporting guidelines were sent much ahead of time to allow consultations among UN agencies to distill data and share analysis of priority issues to highlight in the report.
3.4 While the mantra of `One UN' is invoked, the administrative process of joint programming is complicated and difficult. A `Harmonized Approach to Cash Tranfer' (HACT) approach is the required administrative process at the country level even if not all UN agencies at the HQ have been `HACT-ed'. Hence the contracting process and implementation at the country is slowed down as the UN agencies are still sorting out their systems and getting their acts fully together.
Urban Jonsson , International Consultant on HRBA wrote:
Dear Colleagues,
I would like to share a positive experience I made by using the Concluding Observations of the CRC Committee, during my work as regional director for UNICEF in East and Southern Africa (ESAR) (1998-2003). This region consists of 21 countries and part of my duty was to visit these countries regularly and meet with senior officials of the Governement, UNICEF and other UNCT members. Such a visit normally took 4-5 days and included 3-5 high-level speaches/statements and 4-10 national media interviews. As I had never asked anyone to prepare or to help me to prepare my speeches, I realized that I would have to find a new innovative way to continue to prepare my own speeches. If there is no interpretation I never prepare my speeches in a written form, just a limited number of points that I normally manage to memorize at the time of giving the speech. How could I cope with this increased demand for my speeches? I found out the the CRC Concluding Observations provided the answer for me.I established the following routine:
(1) 10 days before my visit I studied the latest Concluding Observations of the CRC Committee and summarized/listed the recommendations (normally 30-50). I selected the 10 most imprtant ones given the time and the political situation in the country. (This usually took about 2-3 hours), and (2) On the flight I reviewed the list and decided for maximally five key recommendations. These formed the bullet points in my speech.
In this way I could actually go from country to counry and contribute to the important political mobilization for increased attention and resources for the realization of children's rights.
Guest Moderat or Questions Part III:
Dear Colleagues,
We have approached the concluding phase of the e-Discussion on ‘How to Strengthen the Engagement with the International Human Rights Machinery’. Having focused on engaging with Human Rights Treaty Bodies and Special Procedures in Part 1 and 2 of the e-discussion, we are now moving on to the third and final part of the discussion. In this part we will be focusing on how UN agencies and UN Country Teams (UNCT) can use the recommendations of Treaty Bodies and Special Procedures in development programming and in influencing national policy , as well as how UN and UNCTs can suppor t national effor ts to implement these recommendations.
We would like to invite our colleagues to share their experience on the issues raised by the following questions:
1. Using recommendations in UN country programme design:
a) Please share your examples of how UN Agencies and UNCTs have used the recommendations of Treaty Bodies, and Special Procedures in the development of country programmes . This can include, in situation assessment and analysis (e.g. CCAs) and for mulation of results (e.g. in UNDAFs, Country Programme Action Plan etc.)
b) Could Treaty Bodies and Special Procedures make their recommendations mor e applicable to country programming? And if so, how?
2. Using recommendations for influencing national policy:
a) To what extent has the use of recommendations from Treaty Bodies and Special Procedures affected the UN's capacity to influence laws or policies at the national level?
b) Are there any challenges in using these recommendations?
3. Suppor ting national efforts to implement these recommendations:
a) How have UN agencies and UNCTs been able to provide suppor t to national effor ts (by governments and civil society) to implement the recommendations of Treaty Bodies and Special Procedures?
Zanofer Ismalebbe , UNDP Geneva wrote:
Dear colleagues,
Many thanks for initiating this interesting and useful discussion series. Based on my past experience as the Human Rights Development Officer for the RC system and UNDP Uzbekistan I would like to share with you thoughts and experiences in, inter alia , supporting/coordinating the follow-up actions taken by the UNRC/UNDP (on behalf of the international community) to support the implementation of the recommendations of the former UN Special Rapporteur on Torture, Mr. Theo Van Boven. Through this response, I will try and address some of the questions posed under Parts 2 & 3 of the discussion series.
Note: this response is solely meant to bring attention to the seven key conclusions/messages (clustered under 4 themes), and should not in any way be used beyond the overall objectives and purposes of this e-discussion. Also, this experience should be treated independently off what may or may not have happened in the country since my departure in February 2005.
Seven key conclusions/messages:
1) Joint Advocacy/Partnership:
· The international community [including the UN(DP)] can, through adopting strategic advocacy strategies and forming coalitions with all relevant partners, raise human rights issues and concerns with the respective governments and maintain the trusted partnership. Joint advocacy could prove to be a powerful tool to address issues that are often classified as “politically sensitive”.
· Success of the work of Special Procedures will, to a great extent, also depend on the level and extent of cooperation that s/he gets at all stages (before, during, and after country visits), particularly from OHCHR, UNCTs/Agencies, interested bi-lateral partners and international NGOs. Unless and until all these stakeholders join forces and demonstrate their commitments to the cause, it is highly likely that the mission reports will be shelved.
· The OHCHR should demonstrate, particularly to the RCs, that it is serious about follow-up actions (even if financial support may not be possible) on the ground and that its request for support from the UN at the country level goes beyond “logistics”.
2) Senior Managers’ Commitment:
· Any serious follow up actions would require senior managers’ fullest commitment and support, in addition to the needed in-house capacity. For the then RC/RR in Uzbekistan (late Mr. Richard Conroy) this was his top priority (Note: he also went on to familiarize himself with the work of the human rights machinery!). Unfortunately, he died just 2 months before the adoption of the National Action Plan. However, and given the fact he had also involved the then DRR from the very beginning of the follow-up process, the WG received the required leadership to keep up the momentum until the new RCs arrived.
3) Exploit the opportunities/get the maximum:
· UNDP CO managed to capitalise on the visit and find its human rights/civil society/rule of law programming entry points in the country, in addition to strengthening its partnership with the governmental institutions and donor community. The CO also reached out to the international NGOs (such as Freedom House, the American Bar Association/Central European and Eurasian Law Initiative (ABA/CEELI), Open Society Institute, and Human Rights Watch etc) and local NGOs (both registered and non-registered). In 2004, UNDP and Freedom House also signed a MoU to corporate in the area of democratic governance, civil society and human rights protection, including in supporting the implementation of the recommendations of the Special Rapporteur!!
4) Acknowledge government efforts and be realistic:
· The visit and the subsequent follow-up encouraged the government to open its doors for dialogue, take some small steps towards legal reform, forge/strengthen partnership with the donor community and take steps towards understanding the concerns of some human rights defenders. This was also demonstrated by the government opening itself up to the visit of the then UN Independent Expert on Uzbekistan (under “1503” confidential procedure); and other initiatives such as bi-lateral meetings between the officials from the main investigation and penitentiary departments, and National Security Service with a few human rights defenders, in the presence of the international community, to improve dialogue between the two (Note: this also resulted in the first ever joint (govt./human rights defenders) study tour to Slovenia to learn from its experience in integrating human rights into the work of the law enforcement agencies).
· We should be realistic about what can be achieved in countries with very sensitive, complex, challenging, and changing political environments. Even if the Action Plans/National Strategies are not up to the so-called “international standards” (for which we all should be striving hard), and given the fact there is no “one size fits all” formula, nor sufficient evidence- to show that “this plan/strategy has actually succeeded in country x”, governments’ positive initiatives should be acknowledged and dialogues be continued, however time consuming, frustrating and at times disappointing it may be. Continuous dialogue, without compromising on certain principles/values, may provide room to address drawbacks (or the “grey areas”) in the Plans and strategies, as one goes along with the implementation.
Some detailed response:
1. What have been the experiences of UN agencies and UNCTs in engaging with Special Procedures ?
Further to the widespread allegations of torture, and at the invitation of the Government of Uzbekistan, the former UN Special Rapporteur on Torture visited Uzbekistan in December 2002. UNDP provided all the required support to facilitate the mission. In March 2003 the Government, whilst contesting some findings of the Report (which is common in many parts of the world, either rightly or wrongly), stated that it was ready for co-operation with the international community to implement the recommendations. Further to this invitation for cooperation, the donor community requested UNRC to coordinate the efforts of the international community. They also endorsed a Donor Working Group, led by RC/UNDP to draft a joint position paper on supporting implementation and to define appropriate advocacy strategies. While the ICRC and European Bank of Reconstruction and Development (EBRD) were present as observers, the ABA/CEELI, Freedom House and Human Rights Watch became full members of the WG, whose inclusion was agreed upon at the request of the RC.
At a meeting held between Ambassadors and high-level government officials in April 2003, led by the RC, the government agreed to develop an Action Plan to implement the recommendations. As the international community had already formed an alliance and developed its joint position, it was very easy to engage with the governmental focal point agency without losing much time. During the drafting stages of the Plan, the WG also advocated for the approval of the Plan at the highest level as well as the establishment of a mechanism to coordinate the implementation and monitoring of the Action Plan.
The Prime Minister approved the Plan in March 2004, which contained many concrete activities (including many of those proposed by the WG), information on governmental institutions responsible for implementation (without necessarily identifying the lead institution), expected outcomes and timeframes, types of technical assistance, and international organizations and foreign embassies providing technical assistance. However, and as with other National Plans developed in many countries, this Plan did not contain any budget allocation from the government side. The government also established an Inter-departmental Working Group, chaired by the Minister of Justice, for monitoring and coordination of all human rights initiatives including implementation of the Plan.
As there was a great interest in supporting the implementations, the WG developed a joint workplan aimed at supporting the implementation of the recommendations (excluding those that did not require either financial or technical support but mere policy statements/decisions from the government side), with a clear division of labour . The OSCE’s monthly information sharing meeting, to which all the international organisations and diplomatic missions were invited, also had an agenda item on the Plan of Action/Implementing the recommendations and the status update provided by the government was also discussed.
Key strategies:
A) The RC ensured the participation of all concerned international community from the very beginning, both at the Ambassadorial and working levels. Given the convener/facilitator role of the RC/UNDP in this context, it was agreed that we would communicate and lead only on areas where ALL the members had full consent and that any different views aired/pushed from different capitals, from bilateral cooperation perspectives, should be communicated directly to the government counterpart(s) by the respective missions and organisations.
B) In addition to the RC sending the joint position paper(s) and letters to the government, it was also agreed that each of us would send our own very detailed position directly to the government at different intervals. It was also agreed to share the respective positions among us so that everybody was clear about what others were communicating.
C) Relevant UN and non-UN high-level missions to the country also met with the WG.
D) Outside the WG framework, some managed to ensure that the implementation of the recommendations was one of the six must-do elements of EBRD’s funding strategy for Uzbekistan, in addition to ensuring that the issue was raised at every high-level OSCE meetings.
Our experience with OHCHR:
We received the ToRs for the missions well in advance, and this gave us sufficient time to review them carefully, seek clarification, and brief the relevant donors. This greatly helped us engage in consultations with the relevant people to identify the most appropriate places for field visits and also to put together non-official programmes, covering meetings with the non-registered NGOs.
There were constant flow of emails and phone calls from OHCHR, before, during and after the mission, which demonstrated that the Office was serious about follow-up. On a regular basis, the RC also kept the then Deputy High Commissioner for Human Rights (Mr. Bertrand Ramcharan) informed of the developments. Mr. Ramcharan’s visit to the country also boosted the Office’s commitment towards follow-up and support to the RC. We also shared the draft versions of the Plan with OHCHR for its expert inputs.
2) How have UN agencies and UNCTs been able to provide support to national efforts (by governments and civil society) to work towards implementation of recommendations of treaty bodies and special procedures?
The Report of the Special Rapporteur contained 22 specific recommendations, focusing on a wide range of issues including those relating to legal and judicial reforms, legal and judicial safeguards for detainees, establishing effective procedures for internal monitoring and investigation, technical assistance and capacity development support etc. Despite the sensitivity of the topic, UNDP’s focus was firmly about assisting the government to put in place the necessary means that would contribute to torture prevention, by identifying certain recommendations that fell within its mandate and providing relevant advice, sharing of knowledge and experience, technical support and capacity development against those recommendations. (FYI: the WHO office in Tashkent was interested in supporting one of the recommendations that focused on medical doctors/forensic experts/independent medical reports etc. If I am not mistaken, the Office was also in contact with the Penal Reform International for some partnership)
In this regard, and within (and beyond) the framework of the Action Plan/joint donor workplan, UNDP formally committed to contribute to the implementation of around 10 recommendations, either individually or collectively, by developing an Umbrella Human Rights Programme (3 years; with core and non-core resources) and two human rights civil society capacity building projects. All three projects were Directly Executed. The reason why I mentioned “beyond” was that the programme also focussed on supporting the implementation of some of the treaty-body recommendations.
A few words about the civil society projects: During the drafting of the Plan, and due to UNDP’s advocacy, the national counterpart responsible for the Plan invited human rights CSOs (including non-registered) to attend the consultations and provide concrete recommendations on the types of activities that the government should undertake, against each recommendation, and to identify their potential roles during implementation. Although the OSCE, Freedom House and Human Rights Watch convened separate meetings for the local NGOs, in order for them to be able to respond to the request, the feedback provided by those local NGOs to this coordinating body was neither constructive nor demonstrated their ability to be engaged in a constructive dialogue with the relevant departments, especially during the implementation, monitoring and evaluation stages of the Plan.
Hence, the projects, after consultative meetings with the CSOs (both registered and non-registered), focused at promoting a dialogue with the relevant governmental institutions and building the capacity of the CSOs on fact-finding, investigation, monitoring, documentation, effective report writing, and as well as developing/enhancing their advocacy and communication skills, against some of the tasks that they were supposed to perform under the Plan. The Freedom House Office in Tashkent and the Geneva-based HURIDOCS NGO became the main partners in this project. Small grants were also provided to promote joint govt./CSO initiatives.
3. Using recommendations in UN country programme design:
The 2003 CCA, UNDAF (2005-2009), and UNDP’s Country Programme Document (2005-2009) offer ample evidence to demonstrate how development programming can be better influenced by engaging with and using the recommendations of the Special Procedures and UN Treaty Bodies. Let me cite some examples:
CCA 2003: Under the section on Governance (as one of the challenges of transition), the human rights component totally relied on the concluding observations of the UN Committee against Torture (28th session, 2002) and as well as the Report of the Special Rapporteur on Torture. The section also went on to refer to the fact that the Special Rapporteur had found torture to be “systematic” in Uzbekistan.
UNDAF (2005-2009):
Priority Area 4: Harmonisation of National Laws and Regulations in Accordance with International Conventions
UNDAF Outcome: “By 2009, domestic laws are harmonized with UN legal instruments, including human rights, environmental and refugee conventions, and the implementation and monitoring of the latter are improved”.
Country Outcome (4.1): National legislation is in compliance with selected international conventions, including human rights and environmental conventions and improved legal protection for refugees.
Country Outcome (4.2): Enhanced legal framework, monitoring and support mechanisms are in place for the implementation of UN human rights instruments.
Priority Area 5: Good Governance
UNDAF Outcome: “Strengthened government and civil society capacity and partnership towards more effective governance”.
Country Outcome (5.1): “Enabling environment for civil society to participate in development processes”
UNDP Country Programme (2005-2009) : "Democratic Governance" was identified as one of the major components of UNDP's Country Programme 2005-2009. In order to further develop the human rights aspects of this Programme, UNDP commissioned a two-week independent human rights fact-finding and strategy formulation mission (October/November 2004), through the Irish-based organization called “Human Rights Consultants”. The goal of the mission was to assist UNDP to “find the relevant niche” and to formulate its programme strategy in consultation with relevant partners and stakeholders among government, civil society and the donor community.
The section on Human Rights in the Country Programme states that “Human rights will be addressed by building the national capacity to integrate international human rights obligations into the national legal framework, raising awareness on international human rights principles, and enhancing the population’s access to justice. In particular, efforts will focus in strengthening capacities to implement and monitor the national action plan to combat torture and the elaboration of other national strategies to promote and protect human rights, including women’s rights. This will include improving cooperation between civil society and the government in monitoring human rights initiatives”(para. 29). Within the above UNDAF Outcomes, UNDP was able to formulate its relevant Country Programme Outputs.
I hope the above and the already shared experiences will provide some useful insights and lessons on how to move forward on the agenda, particularly in light of the 2005 UNDP Human Rights Practice Note ("Human Rights in UNDP") that has called for a “Greater Engagement with the International Human Rights Machinery” .
Samuel De Jaegere , UNDP Niger wrote:
Dear Colleagues,
Apologies for joining this E-discussion somewhat late, but many thanks for creating this interesting oppor tunity to exchange ideas and best practices on the UNCT engagement with the International Human rights machinery.
Thanks in particular to the moderator s and the facilitator for proposing wide-ranging and specific questions and leading this exciting discussion.
In the past two years, UNDP Niger has collaborated on a few occasions with the Special Procedures:
1) In May 2005, our Country Office received a request of the Special Representative of the Secretary General on the situation of human rights defenders, Ms Hina Jilani, to help in answering a brief list of questions regarding the implementation of the Declaration on human rights defenders. As the questionnaire read in english and french is the main administrative language in Niger , we translated the document into french and it was sent to all national human rights NGO's. The responses were collected and we returned them with a summary (in french) to the OHCHR in Geneva . The Special Representative used the infor mation as a basis for the evaluation of progress regarding human rights defenders in Niger .
After presentation of her repor t to the UN Human Rights Commission in 2006, UNDP circulated the repor t amongst national NGO's and they used it as a lobbying tool for mor e outspoken commitment of the government regarding the declaration on human rights defenders. An interesting outcome of this operation, was the sudden awairness of national NGO's and media about the (for merly unknown) declaration on human rights defenders. As a result, several articles appeared in the newspapers about the declaration on human rights defenders and any time a civil society actor would be arrested or harassed, a reference to the declaration on human rights defenders would be included in the public statement.
The collabor ation with the Special Representative surely raised greater awairness among national non-governmental actor s, citizens, but also in the governmental spheres. At one point, the prime minister of Niger has been recor ded as having said. "Why those critical repor ts about human rights of the OHCHR? Everybody knows, je suis le Premier défenseur des droits de l'homme ."
This may be just wor ds, but in the long run they may change mentalities, I think.
Maybe, the practice of sending lists of questions to UNCTs is a standard practice, but ever since the one-time request of SRSG Hina Jilani, we never received another questionnaire, whether from Hina Jilani or any other Special Rappor teur. Maybe our registry is dysfunctional and we received infor mation, but it did not flow to the appropriate unit or maybe no mor e such questionnaires were sent to UNCTs.
The list of questionnaires for UNCTs in preparation of the yearly repor ts (especially if they have a global reach) is an interesting practice, and could be generalised for all thematic Special Rappor teurs.
2) Mr Jean Ziegler, the Special Rappor teur on the right to food, twice visited Niger : in 2001 and 2005. His first repor t to the UN General Assembly in 2002 is still a salient reference wor k in understanding the key challenges in addressing the recurrent food crisises in Niger . It notably spells out very clearly the main obstacles to the realisation of the right to food. Agencies such as UNDP, OCHA and others have found interesting food for thought in those comprehensive reflections. Besides, the Special Rappor teur's last-minute mission in July 2005 with a Television crew sparked sudden unexpected international media attention and clearly contributed to greater international awairness about the acuteness of the Nigerien food crisis. The UNCT had launched an appeal in April 2005 to cope with the upcoming food crisis, but only after the passage of the Special Rappor teur in July (maybe it wa s incidental, but probably it was instrumental) the international community reacted quite adequately with greatly needed funds, material suppor t and food.
Actually, befor ehand, the UNCT seemed wor ried about this blunt visit of the UN Special Rappor teur in July 2005. The UNCT hesitated to give the Special Rappor teur a warm welcome. Fears existed that the visit of the Special Rappor teur would enflame the already tense relations between the UNCT and the nigerien government at the time, that shor tly befor e was still unwilling to recognise the crisis. In the end, the visit of the Special Rappor teur proved catalytic to ensure free distribution of food to vulnerable groups and also, within a week afterwards, a first representative of OCHA landed from Dakar in Niamey .
Maybe the intial scepticism of the Resident Representatives about the Special Rappor teur, is due to unfamiliarity with the Special Procedures and the people involved. Their hesitation to request suppor t of a Special Rappor teur or simply to suppor t a visiting Special Rappor teur, could be avoided if Special Rappor teurs and Resident Representatives would know eachother well. As Special Rappor teurs become impor tant public figures, it may be impor tant to provide a space for Resident Representatives and Special Rappor teurs to meet each other. Maybe a seminar on how to strengthen UNCT engagement with the International Human Rights Machinery would be an interesting oppor tunity.
3) UNDP Niger has liased with the Special Rappor teur on trafficking in persons, especially women and children. Our office has provided national repor ts about the topic, as well as detailed infor mation about key actor s in the fight against trafficking in Niger . The simple exchange of contact details has allowed the OHCHR to directly contact national NGO's to receive up to date infor mation about the situation. The UNCT can play a pivotal role in building digital bridges between local and national NGOs and the International Human Rights Machinery in Geneva .
Mor eover, although Niger is a transit country of lots of trafficked people and it has been of special concern to the Special Rappor teur on trafficking (top 6 at one point in her prior ity list), the Special Rappor teur has not visited Niger. As the government would probably welcome such a visit. It is wor king on national law concerning trafficking and has ratified regional conventions, it would probably appreciate constructive advice of the Special Rappor teur. As the OHCHR is unable to finance numerous country visits/year, maybe it should be possible for special rappor teurs to visit countries on UNCT funds. Maybe this practice already exists. For sure, it has not been considered here. Wonder whether this would be an interesting avenue?
This is our experience with the Special Procedures, so far. A Guidance Note for UNCT on special procedures and treaty bodies can be accessed here.
Michel Guinand , UNDP Ecuador wrote:
Let me share some experiences of Ecuador UNCT regarding the engagement with Special Procedures.
Following Ecuador‘s open invitation to all thematic special procedures issued in 2003, several HR Special Procedures have recently visited the country:
- Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy (March, July and November 2005)
- Working Group on Arbitrary Detention (February 2006)
- Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, Rodolfo Stavenhagen (April- May 2006)
- Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the rights of peoples to self-determination (August-September 2006)
- Special Rapporteur of the Commission on Human Rights on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt (May 2006)
The context of inviting each SP has been different: SR on the right to health has been directly invited by the present government for an urgent visit focusing on aerial spraying realized by Colombia and its possible impacts on the health of Ecuador’s border population; while urgent visit by SR on the Independence of Judges and Lawyers was requested by civil society when the National Congress unconstitutionally dismissed the members of the Supreme Court of Justice, the Constitutional Tribunal and the Supreme Electoral Tribunal in late 2004.
The UNCT (mainly trough UNDP and with a close support of OHCHR) has been extensively supporting each SP visit through establishing a UN support team and coordinator/focal point (UN staff more closely related to the visiting SP mandate); providing relevant information and documents (elaborated by UN, civil society -HR and justice related NGOs, universities, indigenous organizations, etc.- and government); close coordination with Ministry of Foreign Affairs for the elaboration of the agenda (being the MFA responsible for organizing the meetings with state entities and UNCT responsible for civil society meetings), including specific meetings with UN local agencies; and general thematic and logistic previous preparation and support during the mission.
Each visit has ended in a press conference (held in UN house), presenting SP preliminary conclusions and recommendations. Final SP reports have been circulated in Ecuador, mainly through UNCT web site and e-mail; main recommendations have also been the subject of some of UN weekly radio program; and report of SR on indigenous rights will soon be published with OHCHR support.
Close follow up of main recommendations of the SR on the Independence of Judges and Lawyers, led to a major UN coordination effort -together with the Organization of American States and the Community of Andean Nations- supporting the national process of reconstitution of the Supreme Court of Justice (which culminated after several months of day-to-day national and international monitoring -including several UN experts- of the selection process of the new judges).
This UN institution-building initiative was considered by the Secretary General to be reflecting an exemplary coordination and cooperation between UN and regional/sub regional organizations as well as among UN departments and agencies, and by SR Despouy to be a real innovation in UN’s activities in this field, by supporting national efforts to ensure transparency.
Follow up to main recommendations of SR Despouy has had significant impacts on development work and country programming:
- the new court, with a renewed legitimacy and international support -including UN/UNDP-, has recently released the National Strategic Plan of the Judicial Function (2007-2012)
- the UN/UNDP has positioned itself as a reliable and important partner for Justice issues, while it supports the coordination of international donors activities in this field, and has increased its specific programs (on re-institutionalization of main courts –with Spain Cooperation-, strengthening access to justice and public defense –UNDP DGTTF-, etc.)
- a OHCHR Senior Human Rights Advisor is integrating the UNCT this week, in order to advice and support the government and the UN on strategies to promote and protect human rights, with a special focus on strengthening the Administration of Justice
Of particular relevance is also the UNCT support to the visit of the SR on indigenous rights and the promotion of the inclusion of his recommendations in development work and country programming. The visit and recommendations has allowed to complement and strengthen several ongoing UN initiatives such as the work and planning of the UN Interagency Working Group on Intercultural Issues; the elaboration process of a specific MDG report on Indigenous Peoples; the HURIST 2nd phase project on promoting indigenous rights; and the process of establishing a Consultative Committee between main indigenous peoples/organizations and the UNCT.
The UN RC/UNDP RR also participated in 2006 -presenting Ecuador’s experience- in the Expert seminar on best practices for the implementation of the recommendations of UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples (organized by Rights and Democracy).
Of particular interest for the improvement of our engagement with SR procedures is, for instance, the STUDY REGARDING BEST PRACTICES CARRIED OUT TO IMPLEMENT THE RECOMMENDATIONS CONTAINED IN THE ANNUAL REPORTS OF THE SPECIAL RAPPORTEUR: http://ap.ohchr.org/documents/sdpage_e.aspx?m=73&t=9
Annelie Rostedt, WHO, Geneva wrote:
Dear colleagues,
It has been very interesting to follow this discussion and I would like to join in to share some experiences of the WHO in engaging with the United Nations Special Rapporteur on the right to the enjoyment of the highest attainable standard of health ('the right to health'), Prof. Paul Hunt.
WHO supports the work of the Special Rapporteur on the right to health both at Headquarters level and during country missions. WHO provides input to the reports of the Special Rapporteur and disseminates and encourages the use of his reports to guide health development programming. Recently, WHO technical departments have for example been engaged in consultations on relevant aspects of Prof. Hunt's forthcoming report on the right to health in the context of health systems. I have also had the experience of engaging with the Special Rapporteur on his two country missions to Uganda, during which time I was based with the WHO country office in Uganda as a Health and Human Rights Officer.
In March 2005 the Special Rapporteur on the right to health carried out a country mission to Uganda, which focused on neglected tropical diseases. WHO Headquarters and the WHO country office in Uganda supported and organized the logistics of the mission in collaboration with government counterparts and OHCHR. WHO also provided information to the report of the Special Rapporteur and supported follow-up and awareness raising/monitoring of his recommendations.
In May 2006, WHO and OHCHR supported the Ministry of Health in organizing a health and human rights capacity building workshop with the objectives to explain the linkages between health and human rights and explore how human rights can be used as a tool for analysis, implementation and monitoring of the Uganda Health Sector Strategic Plan II. The workshop included parallel sessions on specific health and human rights issues. The recommendations made by the Special Rapporteur in his Uganda mission report were incorporated into sessions on "patients' rights and community empowerment" and "neglected diseases". Other sessions on "sexual and reproductive health rights" and "mental health and human rights" were informed by previous reports of the Special Rapporteur addressing these themes. The workshop brought together a large number of participants from the Ministry of Health, other ministries, the Uganda Human Rights Commission, academic institutions, NGOs and UN agencies. The workshop initiated a dialogue on health and human rights within the Ministry of Health, identified recommendations and supported strategic partnerships between health and human rights professionals.
One of Prof. Hunt's recommendations on monitoring and accountability was for the Uganda Human Rights Commission to establish a right to health unit which would hold duty bearers accountable in relation to the right to health and neglected diseases. This recommendation was discussed during the mentioned workshop and at other meetings, which supported the Uganda Human Rights Commission in its efforts to respond positively to the recommendation. The Commission had already carried out activities on the right to health, and in 2006 the Right to Health Unit was established.
In February 2007, the Special Rapporteur on the right to health carried out a second country mission to Uganda. OHCHR and WHO supported the preparations of the mission, which had as principal objectives to understand the role of Sweden/Sida in relation to the right to health in Uganda; and to follow up on the recommendations from the 2005 mission. During the mission of Prof. Hunt, a number of meetings were held to provide information in relation to the mission objectives. However, the visit of Prof. Hunt also provided an opportunity to bring together a broad range of health and human rights professionals to a stakeholders meeting. The meeting sensitized the participants on the right to health; reviewed the progress made towards implementation of the recommendations from the 2005 mission on neglected diseases; and provided a human rights analysis and recommendations of the Health Sector Strategic Plan II as a contribution to the forthcoming mid-term review of the health strategy. WHO worked together with the Ministry of Health, OHCHR and Sida in organising the meeting and the presence of Prof. Hunt helped ensuring a high level participation from Government, including the Minister of Health, the Permanent Secretary, the Director General and several Commissioners and Assistant Commissioners from the Ministry of Health, and the Chairperson of the Uganda Human Rights Commission.
In Uganda, an increasing number of partners, including both health and human rights professionals, are starting to address health from a human rights perspective. The engagement with the Special Rapporteur has helped to put important, but marginalised, issues on the agenda. For example, the CAP 2007 for Northern Uganda includes for the first time a response to some of the neglected diseases faced by IDPs. WHO and the Vector Control Division of the Ministry of Health are presently developing a booklet to raise awareness about neglected diseases and the right to health. The recommendations from the Stakeholders' meeting with the Special Rapporteur are intended to guide the forthcoming mid-term review of the Health Sector Strategic Plan II. While not a principal objective of the Special Rapporteur's mission, the stakeholders' meeting and the participation of the Special Rapporteur was used as opportunity for awareness raising and to support the integration of key right to health issues into the health strategy.
If possible - of course depending on the specific mandate of the Special Rapporteur and the sensitiveness of the issues -, I believe that government counterparts should to the largest extent possible participate in the planning of the country mission. This increases the ownership of the mission and its consequent recommendations. It encourages a constructive dialogue between the Special Rapporteur and government counterparts. Also, if possible, use the mission of the Special Rapporteur as an opportunity to strengthen partnerships, ongoing programmes and government interest. The two missions of the Special Rapporteur on the right of health have been very helpful in supporting ongoing initiatives to address human rights based development programming and awareness in the health sector.
Natia Cherkezishvili, UNDP Georgia wrote:
Dear Colleagues,
Please find below responses to the two questions from Part II of the e-discussion based on the experience of UNDP Georgia with the Special Rapporteur on Torture:
1. What have been the experiences of UN agencies and UNCTs in engaging with Special Procedures?
Upon the request of the government, the Special Rapporteur on torture visited Georgia in February 2005. During the mission UNDP CO was involved and acted as focal point for organization and facilitation of the mission, including provision of information on the current state of affairs with regard to human rights and appalling conditions in penitentiary establishments. The CO also accompanied him for the most of the meetings.
The possibility of UNDP’s further involvement in the implementation of recommendations and follow up actions were discussed together with the UNCT and the donor community. Draft recommendations were presented to UNCT and a discussion was held on supporting government in overcoming culture of impunity and ratification of Optional Protocol on Torture (OPCAT) to establish a truly independent monitoring system of penitentiary establishments. Following this the government ratified OPCAT in 2006. The General Prosecutors office started preparation of newsletter providing information on the cases of torture inhuman and degrading treatment. The afore mentioned document was widely disseminated among international organizations.
Overall the close cooperation of UNDP Georgia with the Special Rapporteur was very rewarding and interesting for the CO including myself, providing us with hands on knowledge, experience and advice on future programming in human rights sector.
2. How has this engagement with the Special Procedures impacted on development work and/or country programming?
As a result of the visit and recommendations of the Special Rapporteur the new Country Program Action Plan (CPAP) extended its focus on Justice and human rights. In addition in the framework of an on-going project supporting the National Human rights institution a number of trainings were added and conducted on CAT (The Convention Against Torture) and OPCAT (the Optional Protocol on the Convention Against Torture) both for the staff of the Public Defenders office as well as the law enforcement institutions.
Maina David, UNDP Kenya wrote:
Dear Colleagues,
I would like to join this very informative discussion with contribution from Kenya CO. I will highlight an example of our recent engagement with the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, when he made the 2nd African visit to Kenyan. I will try to address the guiding questions directly but will also try to indicate how the visit has generally impacted on the work on IP issues at the country level. I think I will start by citing briefly that at the African context and also a situation that is being realised at the national level is that working with indigenous peoples issues has been of 'fluid' nature, and where many discussions with a cross-section of state and non state actors have had the tendency to discourage any 'special' consideration of these issues. In essence the visit of the SR in December of 2006 was a culmination of an ongoing process of encouragement of the SR to visit the country that had emanated from interactions with IPs from Kenya in different International and regional fora on a number of thematic issues and where indigenous peoples issues have been highlighted, and the elaborate advocacy processes by the IPs at the National, Regional and International levels. The country office in line with the 1998 OHCHR and UNDP Memorandum of Understanding on cooperation to implement aspects of mandates of country and thematic special procedures and working groups facilitated the mission of the SR following the official invite of the Government. UNDP in conjunction with National counterparts (Government, Civil Society and the National Human Rights Institution) embarked on a series of preparatory activities across the country in preparation of the visit that included mobilisation of different IP group, meetings with the Government and Development partners and field visits to assess the situation of IPs, and where UNDPs main role was coordination.
The visit of the SR was actually very timely for the country as it came at a time when there were a number of processes that had been taking place in relation to the promotion and protection of the rights of IPs. Nationally the process of formulation of the National Policy on Human Rights being spearheaded by the Ministry of Justice and Constitutional Affairs and the National Human Rights Institution was ongoing and UNDP Kenya was just coming to the close of implementation of the HURIST (Human Rights Strengthening) programme, specifically the component on mainstreaming indigenous peoples rights. Earlier, in the context of strategizing how the IP rights would be included in the process of formulation of the Human Rights Policy for Kenya, the National Human Rights Institution had established an experts group constituted by indigenous peoples experts to explore how IP issues would be incorporated into the process of formulation of the Human Rights Policy. The information generated from the visit of the SR as well as interaction with high ranking government officials in very key ministries was an important contribution to some of these national processes.
In addressing the issue of implementation of recommendations from the SP in Kenya, it is important to mention that succinct proposals for improving the situation of IPs at the national level were generated from the SP process and shared widely with national counterparts. To note also is that the Expert group mentioned earlier has already reviewed the report and recommendations and in discussion with the National Human Rights Institution are already exploring the options of how some of those could be implemented to enhance the situation of IPs. The work done as a result of the SP visit was tremendous, the UNCT is now in the process of the Mid Term review of the UNDAF, with the recently revised CCA/UNDAF guidelines that laid specific emphasis on incorporation of IP issues in UN Programming and the results of the SP on IP issues there is a great opportunity to give added consideration to IP issues in the coming review as well as we look into the next UNDAF cycle.
Yesim Oruc , UNDP Turkey wrote:
Dear Colleagues,
Let me joint this discussion with a contribution from Turkey on the UN Country Team and UNDP engagement with special procedures, based on our experience with the Representative of the Secretary-General on the human rights of internally displaced persons and others. This little write up responds to both questions, focusing on impact of this engagement in country programming.
The most “eye opening” programming prompt in Turkey has come from the Representative of the SG on human rights of IDPs in 2002. The then Representative not only included strong advice in his Report to the UN to do targeted programming for IDPs in Turkey, but also had a series of informal exchanges with the Government and UN/DP to include IDPs as distinct target groups/beneficiaries in poverty reduction programs. Some may share the experience that a typical country office or country team will usually be “risk averse” because of the need to have good relations with the host Government. The Representative engaged with the Government at levels and with content that the UNCT had not really done before. He was able to “identify” for us the “supporters/champions” of IDP issues in Government, allowing us to “break through” our self imposed conservatism in getting into such sensitive issues. Since then the UNCT has established a UN Thematic Group on IDPs which has among others been able to support the Government –through experts and reviews of an IDP survey- in realistically accounting for the IDP population in Turkey. The Government’s IDP survey was launched in December 2006.
a. The UNDP also engages frequently with the Representative of the SG on HR of IDPs. One area has been to invite for the commentary of the Representative on project documents, policy papers emanating from IDP related projects etc. This – despite the time burden on the schedule of the SP - has been a great contribution to the quality of the work of the UNDP. Another benefit of this close engagement has been the opportunity it has presented for “independence” “neutrality” of the UNDP programming in Turkey. By basing project documents –almost verbatim – on the recommendations of the Representative, we are able to claim that the project is not biased for any IDP constituent or NGO stakeholder or the Government: it is simply the world of the person / body who has the mandate. This almost makes our programming “infallible.” An example project document is attached. The Representative’s report on which it is based is available in the link: http://www.undp.org.tr/demGovDocs/RecommendationoRepresentativeMarch2006.doc It may provide for an interesting example of programming based on an instrument of special procedures.
b. The UN Country Team and the UNDP have also “supported” the invitation to Turkey of the same Representative of the SG. Again despite the time burden on the Representative the results have been very positive. For one, it is important for the UN to ally itself with the partners in Government and civil society (but both, never just one) who really stand to benefit from having the Representative visit the country either in a fact finding or a study mission. In the case of our IDP work, our local partners at the grass root levels stood to benefit from the review of the Representative of their programs for IDPs. Noting that acknowledgement of a local activity coming from the Representative would strengthen the argument for scaling up of similar initiatives, the UNDP CO “encouraged” the Government to invite the Representative. Second, it is very worthwhile to use the “visibility” around such a visit to draw commitments for action for specific mandate issues: in our case, increased funding for IDP integration and return programs from the Government.
2- We have also had very concrete linkages between the special procedure instrument and UN programming in the area of human rights of women. This linkage is currently being worked into a UN Joint Program for the Advancement of the Rights of Women, based on the report of the Special Rapporteur on Violence Against Women. In the upcoming weeks, we will be able to share a project document that is very much in follow up to a recent report of the Rapporteur.
3- In some instances however the linkage to programming or even (at least for UNDP) to advocacy has not been as smooth. In summary, if the Government’s overall experience with the Special Rapporteur or Representative is negative or goes bad (due to even logistical matters), it becomes very difficult if not impossible for those of us in the field to raise the flag of the Report or other instruments of the special procedures. It is therefore critical that both Colleagues in Geneva and us in the field do our best to make the missions a success. Close dialogue between the Resident Coordinator and the SR before and during the mission is indispensable.
Guest Moderat or Questions, Part II:
We are entering the 4th week of our e-Discussion on ‘How to Strengthen Engagement with the International Human Rights Machinery?’ and moving on to Part II.
Part I invited you to explore the topic of “Using International Human Rights Norms and Standards, and in Particular Human Rights Treaties, in the National Context ” . We extended this part to allow members to further explore and expand on what is working and what is not in that area (a revised summary of all the contributions received to Part I will be circulated on the network shortly). Part II takes us into discussion o n another important part of the international human rights machinery: Special Procedures.
The term Special Procedures is used to describe a diverse range of mechanisms established by the Human Rights Council (previously the Human Rights Commission) to promote and monitor human rights in relation to specific thematic issues, or to examine the situation in a specific country . They are composed of experts appointed to serve as Special Rapporteurs , Special Representatives, Independent Experts or in Working Groups (on disappearances, arbitrary detention, etc). For a full explanation of Special Procedures, please see below.
We would like to invite our colleagues to share their experience on the issues raised by the following questions:
Part 2) Engaging with Special Procedures:
1. What have been the experiences of UN agencies and UNCTs in engaging with Special Procedures? i.e. Supporting/encouraging governments to invite Special Rapporteurs to visit the country? Assisting Special Procedures during the visits? Providing information on relevance/implementability of their draft recommendations?
2. How has this engagement with the Special Procedures impacted on development work and/or country programming? In what ways could the engagement be improved?
Daniel Seymour, UNICEF New York (Guest Moderator) wrote:
Dear colleagues,
We hope you will agree that we have received rich and diverse inputs since our discussion began on the ways in which we in the UN family and the human rights community more broadly can work to make the human rights machinery best serve the human beings they are designed for. We have seen contributions from diverse regions and types of countries. Lessons learned have touched on the roles of national human rights commissions, the challenges of timely and quality reporting, the benefits of wide and consultative processes around report preparation, limited capacity within government for reporting and the difficulties of ratification and reporting absent genuine implementation. We have been reminded of parts of the UN system that represent the extended family of the human rights treaty bodies and special procedures such as those ! of the International Labour Conference and Organisation. We have been challenged by our NGO colleagues to consider the way we in the UN work and the implications of our working practices on our human rights performance.
With this solid foundation of shared experience, and before we move onto the next part of the discussion, we'd like to invite participants to take a final opportunity to share any additional qualitative or analytical observations both from their own work and that of others that they have seen here. What really are the key factors that make this process valuable? What might we not have always taken into account in the past that we can take into our work in the future? What has undermined or facilitated what we tried to achieve? We would also like to take the opportunity to thank those who have already shared their experience and views with us and look forward to the rest of the discussion.
Heather Barr, UNDP Burundi wrote:
Apologies for coming to this discussion late -- there have been so many interesting contributions that it has been hard to keep up!
I wanted to offer a few thoughts about some interesting work that has been done here, in Burundi, by the High Commission for Human Rights, on reforming the criminal code and criminal procedure code in order to bring it into compliance with internatinal laws and standards. This is not a project of my office (UNDP) but we have been lucky enough to be able to participate in the process, and I think it is a very useful example for UNDP and others engaged in law reform work.
In Burundi, as perhaps in other countries that have emerged from conflict as a result of an intensive peace negotiation process, the problem is not one of ratification of international instruments. Reporting on this instruments is a challenge (that OHCHR and UNDP have made some efforts to try to address through a training for government on reporting) but the biggest challenge is to actually implement the provisions of international instruments -- this needs to be done through law reform and then, of course, by actually finding ways to ensure that reforms in the law are implemented and complied with.
Revising laws is obviously a sensitive issues, as is justice reform generally, and governments are understandably not always too excited to have the UN helping them rewrite their laws. Although the revisions of the criminal code and the criminal procedure code have not yet been adopted here (the criminal code has been pending in Parliament for several months, and the criminal procedure code is still being completed) the project has advanced smoothly so far with real government buy-in as a result of a couple of key factors:
1) real government ownership -- although the work has been financed and "managed" by the UN, the Minister of Justice selected the committee (a committee of senior and respected Burundian lawyers) that prepared the revisions, in collaboration with OHCHR staff.
2) respected national staff -- the two staff members from OHCHR responsible for the project are both former magistrates, on of whom is also a former minister. The respect that the Minister and other members of the government have for them has been crucial in engaging the government.
The process has had a number of steps. First the committee chosen by the minister has prepared a draft revision of each law. This draft has then been reviewed by a committee assembled by the UN. For the first law, the criminal code, the committee consised of only UN staff (including lawyers from Burundi, Niger, Burkina Faso, Belgium, Germany, and the US who work for OHCHR, DPKO, and UNDP), for the second law, the criminal procedure code, some international NGOs and the ICRC were also invited to join the process, and UNICEF has played an important role (especially because many of the reforms relate to reform of the treatment of children in conflict with the law). The UN review committee submitted detailed comments to the government-appointed committee, and the government-appointed committee integrated many (but not all!) of these comments. Then a series of public consultations were (or, in the case of the criminal procedure code, will be) held, comments from these public consultations incorporated, and then the revised law submitted to Parliament.
In the course of the UN review committee, we have struggled constantly with the question of how to be faithful to international laws and standards without creating systems that are wildly unrealistic in a country as poor as Burundi and which at best will not been complied with and at worse could even have negative consequences. Burundi is extrememly poor, with approximately 85% of people living on less that $1 per day, and at present the justice system functions with great difficulty. Very few criminal defendants receive legal assistance, pre-trial delays are very long, prisons are at over 300% of capacity, the country has few lawyers, and courts lack the most basic necessities (paper, pens, transport to execute judgements, means to transport prisoners, etc.). In this context, we have struggled a great deal with the question of how effective it will be to, for example, enshrine in the law the right to counsel for specific groups of defendants -- and whether it is appropriate or justifiable for us to not argue that everyone facing incarceration must have counsel, when that is required by international standards.
Sometimes even things that seem very straightforward are unexpectedly complicated by lack fo means and poverty. For example, one day we were discussing the pre-trial release with conditions of people awaiting trial. Several of us were arguing that any conditions must be written in a document and a copy of the document must be given to the defendant prior to her/his release. Seems straight-forward enough -- but our Burundian colleagues explained that the defendant would be required to pay the equivalent of five cents per page for this 1-2 page document and most would rather not have a copy since they can't afford to pay. Not to mention that literacy levels are low here, so many would not be able to read the document anyway.
Of course, in the end, our recommendations are only recommendations, and the government-appointed committee will accept or reject them. But I think that this has been a very effective process, and one which has, by walking a careful balance between government ownership and UN input, provides a good model for how the UN can assist a government in bringing national law into compliance with international standards.
In the course of the UN review process, we have referred very frequently to international laws and standards, and there is a new resource worth mentioning, which has been useful -- the UNODC Criminal Justice Assessment Toolkit, which was completed last fall I believe. It can be found at http://www.unodc.org/unodc/criminal_justice_assessment_toolkit.html .
Finally, an important last step is that the UN make a real commitment to prioritizing helping the government to implement these legal reforms through our future justice reform programming -- otherwise they are at risk of existing only on paper. We have tried, while developing a joint justice reform program for BINUB (the integrated mission here that started in January 2007), to target our staff and programme resources toward supporting the reforms that the government has committed to through this law reform process.
Many thanks again for organizing this very interesting discussion.
Doel Mukerjee , UNDP India wrote:
Dear Colleagues,
The issues that have been raised on HURITALK are extremely important especially for a country like India . I will only write on the third point - What is the role of institutional mechanisms (such as National Human Rights Institutions, Parliaments, National Committees that deal with specific human rights treaties etc.) in both implementing and monitoring human rights treaties?
In a democracy we look at the human rights violations and issues that have been highlighted in the media recently in this country and the status of several cases in the courts where parliamentarians have subverted and circumvented justice. There is at present a raging discussion amongst the middle class, media and others whether a recent case of fake encounter in Gujarat by senior police officers is justified. In Gujarat the society is divided at the moment as several believe that the police can take up law in their hands. The case is interesting; the police had adducted not only the criminal but also his wife and finally killed them and disposed their bodies. A harassed family approached the court and on a court directive the police themselves are investigating the case and found one of their own guilty.
Here the issue is that while countries may ratify international treaties, but how far these are implemented at home inspite of having reasonably good legislations is a cause of great concern. The immediate response in this case is to set up oversight mechanisms as national Human Rights Institutions, creating a informed legislature and other national bodies.
However, if these oversight mechanisms/national bodies are extensions of the government itself, it is very difficult to open up these systems for the people inspite of India being a showcase for the Right to Information legislation etc. Most of the institutions as the State Human Rights Commission, National Human Rights Commissions are with personnel from the police and other law enforcements on secondment, while all of the members of the commission are retired judges or bureaucrats. I am not certain how people and their minds would change after being on government assignment for more than 30 years. The NHRI’s definitely need restructuring with civil society representation.
Similarly the Office of the Information Commissions has all or most of the commissioners also retired bureaucrats. How can persons who have been mired in secrecy for more than 30 years suddenly be protagonists of transparency?
The NHRC and some state human rights commission have taken proactive measures to give directions to the states and have given several landmark decisions regarding fake encounters/extra judicial killings, how to conduct post mortem, custodial deaths etc.
My point is that there is need to build in civil society participation at each level which should have deeper involvement other than just a packaging effect which is presently happening. NGO’s feel that working with institutions of the govt. including the NHRI means that they are co-opting to be with the system. In such a scenario it is important to have a educated and strong civil society which can continuously prepare shadow reports, have independent monitoring systems which can build on legal activism.
According to Social Watch India , a political watchdog, reported last year that 125 of the 538 members of Parliament have criminal cases pending against them. Around half of these cases relate to relatively minor allegations, the other half concern serious charges that could lead to jail terms of five years or more. In this worst case scenario there is a human rights forum of 42 MP’s and a Doctor’s/professional forum of some odd number which meets informally and takes up issues and are believed to be pro change. The UNDP has also initiated a legislator’s forum at the centre (parliament) and some states. These groups can be targeted to capacity build and sensitize them to build up a cadre of change agents within the system.
To strengthen the engagement with the International Human Rights Machinery, it will be important to find out dissemination channels and build up knowledge regarding the human rights normative framework amongst multiple stakeholders. This needs to be done urgently across thematic areas and issues. Also educating the media is equally important. In most towns and cities across the country the media lacks awareness and hence are unable to correlate derelictions to the digressions made by law enforcement, parliamentarian and other statutory and quasi judicial bodies.
Hope this is useful.
Mika Kanervavuori , OHCHR Geneva wrote:
Dear colleagues,
This e-discussion is very interesting and important in order for us to share ideas, knowledge and information that can help us in our respective work. I wanted to contribute with information I have been able to collect through my own work and I hope it can function as inspiration for some of you.
Since 2003 OHCHR Treaties and Council Branch has implemented a training project that creates follow-up activities to treaty body recommendations.
These activities build upon a “cycle of events” i.e. a number of capacity building and discussion workshops which include Government representatives, national human rights institutions, non-governmental organizations, and media representatives. The basic idea is to create a group of national actors that work together, within their respective rolls and activities, towards the common goal of further enjoyment of human rights in their respective countries. The “subject” for getting the different actors together is the treaty implementation and reporting processes and in particular a discussion around the recommendations from all treaty bodies on the respective country (we also use recommendations from Special Rapportuers). The treaty body recommendations are often looked upon as a neutral starting point for such discussions and we facilitate a stock-taking and assessment of the level of implementation and an identification of areas of common interest. Finally the participants themselves create plans of action for further common activities in order to follow-up "unimplemented" recommendations.
We work with the participants in the different countries during a period of 12 to 16 months through four events or workshops. The cycle starts with capacity building in the respective countries around the international human rights mechanisms, discussion about national mechanisms and national human rights activities. The continuation takes some of the participants to
Geneva to follow treaty body sessions, get more detailed information on the treaty body system, and to interact with other participants from other countries. About 10 months after the Geneva workshop we go back to the countries to follow-up their activities and we facilitate a treaty body recommendation by recommendations assessment of implementation. The fourth event is a regional workshop where participants from countries in the same region come together and exchange good practices for implementation of and follow-up to treaty body recommendations.
These workshops build upon each other and participants gain more information, knowledge and capacities to actively engage in the treaty implementation and reporting processes, within their respective rolls. The workshops create national ownership and commitments to a number of activities. So far we have been working with 23 countries around the world and we have seen the creation of core groups of national actors that work together and we have seen a number of plans of action i.e. commitments to activities, being created and many of them have been follow up and implemented. Activities include: proposals for legal amendments and policy formulation; research and initiation of specific studies; translation and publication of treaty body recommendations; advocacy with parliamentarians; awareness raising in local communities including through radio programmes and written media; seminars and round tables on issues raised in the treaty body recommendations etc. etc.
This all sounds good and I’m glad that I can see activities in the same spirit continuing in some of the countries we have been involved with like in Rwanda and Uganda. We have though seen that the results vary much from country to country and in countries where we have not succeeded in creating this “group dynamic”, due to local circumstances like political environment and less tradition for cooperation, we have basically lost contact with the participants. Thus the UNCTs involvement with us in these activities at the country level is crucial and we are devoting more efforts in that respect. In my view, the UNCT can act as an engine and facilitator for the creation or continuation of a national dialogue on specific human rights issues at the national level.
At the moment we are creating a specific web-page for implementation and follow-up issues under OHCHR treaty bodies web-pages. These pages will contain more information about our activities, list of participants, workshop programmes, plans of action etc, and examples of good practice for follow-up activities identified by our participants. At some point all the good practice that has been identified will also be produced in a booklet.
OHCHR, in partnership with the Association for the Prevention of Torture (APT) developed and produced a training tool in the format of a DVD. This training tool explains the work of the treaty bodies through the reporting cycle. It shows good practice for participatory processes, interaction with treaty bodies, and in particular it identifies entry points for non-governmental organizations and national human rights institutions for such interaction. A number of the DVDs have been sent out to field offices but let me know if you would be interested in having copies and I’ll send them to you. You can also get an idea of the DVD by going on-line to the web-page of the Common Wealth Secretariat.
Eileen Moyle, Teresa Rodriguez , UNIFEM Mexico wrote:
Contribution from UNIFEM Mexico to E-discussion, Part 1 on Interacting with Treaty Bodies
How States, civil society and UNCT can better interact with UN Treaty Bodies (TB).
There should be more liaison work between Treaty Bodies and other UN agencies, governments and NGOs: when consensus is not reached within TB, this undermines effectiveness and results, and in order to overcome this, it is necessary to identify the most outstanding representatives.
Though the aim is that these are impartial and independent, some still criticize that the UN Human Right Treaty monitoring system is biased, and that the strategies are the mastery of the inner working system and secrecy.
Of course controversy is possible: periodic meetings on states' reports, on the inquiry of specific country situations and possible violations to human rights, and observations on domestic legislation and practices can lead to governmental denial to recognize these, and even to collaborate. It can also refuse the UN observation and fact-finding missions.
Representatives: In order to reverse accusations of being biased, the composition of the Committee must be as pluralist as possible, also understanding that its role is advisory. The idea is to have well-informed, focused and constructive discussions within a credible Treaty Body.
The organizations and human right activists invited to be on the TB Committees should have the capacity to use the system and a reputation of impartiality.
The primary role of democratic governments is acknowledged and that NGOs have a subordinate role; however governments have a duty under international recognized norms to ensure the implementation of human rights and freedom, including the right to diverse views and opinions, and the obligation to guarantee that right.
NGOs : they play an important role, as those accredited are allowed to present written or oral statements, leading to direct exchange between NGOs, governments and committees of experts, helping to monitor compliance on human rights, and their implementation within laws and practices. They should well understand the process regarding country information, schedules and participation. They could also create a coalition to disseminate the conclusions of the Treaty Bodies.
UNCT: it can help by supporting and strengthening the countries' national human rights institutions, through technical assistance on the ratification/implementation of international instruments, and also increase public awareness. It should identify the countries' present/future key challenges, and could help disseminate rapidly state party reports and the concluding Treaty Bodies' observations to legislators, the judiciary and the civil society. A proactive targeted dissemination strategy could be designed.
UNIFEM can support the participation of NGOs in the treaty monitoring and conference implementation processes by continuing its training on the understanding of the CEDAW monitoring guidelines, including of its terminology.
Workshops on how to effectively use the UN Treaty Body system should be offered to the civil society, but also to government representatives, and invite experts to promote exchange; this could allow further interaction, and eliminate the idea of secrecy. UNCT members should also be invited periodically.
There could be regional UNIFEM training sessions, maybe thematically, previous to the more specific CEDAW preparatory workshop in NY. More women could be capacitated this way; those already having attended the NY sessions could may be those designing these initial regional training sessions.
UNIFEM documentation centers (or one center) could prepare a pamphlet on Treaty Bodies and the monitoring process, with a list of useful websites.
In view of improving monitoring, the incorporation of a gender perspective to human rights should be analyzed within the Treaty Bodies themselves: the implementation of systemic performance standards to measure the extent of state party compliance, with sex-desegregated variables and indicators, on core minimum obligations. The consolidation of existing UNIFEM thematic expertise on this should be done, focusing on development capacity and the MDGs, backed by the necessary resources.
The academia has an important role, as there are experts on the issue of monitoring and incorporation of gender perspective who could be valuable partners, to UNIFEM as well as to the Treaty Bodies.
Asao Shimizu , UNDP Lao PDR wrote:
Dear colleagues,
Thank you very much for launching this interesting E-Discussion. It would be very interesting to hear from offices around the world on the theme of E-Discussion. I would be interested in sharing the outcome of the discussion with International Law Project which implements activities that are relevant to the questions of this e-discussion.
I would like to share UNDP Lao PDR country office’s experience on the first question :
Lao PDR has been a party to a little less than half of the UN core treaties, and ratified the following human rights instruments: ICESCR, CEDAW, CRC, and ICERD. Based at the Ministry of Foreign Affairs, International Law Project implements activities to strengthen the process of signing, ratifying, implementing and monitoring international legal instruments in the country. The project has been instrumental in advising the Government in the ratification process of international treaties. The project supported the country’s ratification of ICESCR in December 2006.
One of the factors behind the successful role of the Ministry of Foreign Affairs in facilitating the ratification process is that one of the components of International Law Project focuses on the capacity development of the Department of Treaties and Laws at the Ministry of Foreign Affairs, which advises the Government concerning the ratification of international treaties. Staff from the Department of Treaties and Laws has attended trainings abroad to acquire relevant skills to perform their tasks. Due to the strengthened capacity backed by technical expertise in international law, the Ministry of Foreign Affairs has been successful in taking on the advocacy role for the ratification of international treaties.
In the phase I of the project (2001-2005), advocacy for ratification was primarily undertaken by the Ministry of Foreign Affairs. However, in the second phase (2005-2008), the project has begun to encourage and support advocacy for ratification by relevant Ministries. The Ministry has been successful in facilitating the discussion on international treaties among concerned Ministries. In addition to the facilitator role, the Ministry of Foreign Affairs provides international law technical advice to other ministries on the national incorporation process of international legal instruments.
UN Secretary General sends a list of UN core treaties along with one selected thematic area to the Ministry of Foreign Affairs every year. The project refers to this letter in selecting international treaties to consider ratification. ICCPR and ICESCR were included in the SG’s letter when the project decided to work on the advocacy for their ratification. Lao PDR has signed the ICCPR and ratified ICESCR, and the project supported the signing and ratification process.
Eun-Chim Choi, UNDP Timor-Leste wrote:
Dear colleagues,
I would also like to join in expressing my enthusiasm at the launch of this first e-discussion!
I have been working in UNDP Timor-Leste for about 15 months now, so I can only supply bits and pieces of the larger picture. Nevertheless, I will try to share some experiences in efforts to apply international human rights and norms in the national context of Timor-Leste. I cannot do this in one single email, so in this first response I will touch upon the first question in a slightly twisted angle:
Ratification of treaties was the easy part…
We have quite a unique environment here in Timor-Leste, as it is the first newly independent state of the 21st century, which has also been under a United Nations transitional administration upon gaining independence. Thus, the Government of Timor-Leste (GoTL) had little trouble in ‘signing up’ for all seven core treaties. The UN in Timor, through numerous peacekeeping missions in the country, was undoubtedly a strong and effective advocate for treaty ratification.
In other words, ratification was the easy part! All seven treaties were ratified on the same day: 10 December 2002. (Check the following link: http://www.jsmp.minihub.org/News/News/11_12_02.htm )
However, implementing treaty obligations remains a serious challenge. In a young nation where basic national systems and institutions for human rights (Parliament, Judiciary, NHRIs, etc.) are being built from scratch, how much can you realistically expect, in terms of practical application and actual compliance to the treaties?
As for treaty-reporting, the reporting processes for two conventions (CRC, CEDAW) which were concluded in 2006 were largely led by internationals contracted by UN Agencies under the UNDP HURIST programme, due to the lack of local expertise. While government counterparts were involved (Ministry of Foreign Affairs, Office for the
Promotion of Equality) and national civil society actors were widely consulted, in the end the treaty reports were drafted and finalized by international consultants and then endorsed by the Council of Ministers, which is the national decision-making body at the ministerial level.
Given this background, the treaty reports were UN reports as much as they were Government reports. Questions remain as to the degree/extent of ownership exercised on part of the actual duty-bearers (i.e. the government), not only in terms of the reporting exercise itself, but also in assuming responsibility over the issues identified in the reports and preparing to take action.
Thus, the lack of government capacity to report on and implement international human rights standards/norms can be quite problematic.
Is there a ‘right time’ for treaty ratification?
In this regard, I would be interested in what our colleagues think about the issue of ‘timing’ in treaty ratification.
Is ratification always the right thing to do, or is it better for a country to commit to a treaty when ‘the time is right’
and it is equipped to do so? Is there a time to discourage the ratification of treaties, instead of encouraging it?
Marcus Baltzer , previously with UNDP Malawi, wrote
Dear all,
1. Eun-chim’s observations are true but should leave us feeling somewhat concerned. I share her experience that ‘ratification was the easy part ’ - implementing it is always much harder. The most obvious reason for that, I suspect, is that there are very few incentives or disincentives associated with human rights treaties. If state A fails to implement a free trade treaty by comparison (pacta sunt servanda of course applies equally to all treaties [1] ) then state A is likely to be penalised for doing so by other parties, which are likely to reciprocate by restricting trade that is beneficial to state A. If state A fails to implement a human rights treaty on the other hand, well, let us just say that the consequences might not be felt as much.
There is a risk that human rights law is relegated to a second class within international law (maybe that is already the case in practise ) if the acquiescence to breaches of human rights law continues.
2. However, not all breaches of human rights law are attributable to malice on the part of the failing state. As Eun-chim points out; for some states the competing priorities are just too many, and human rights is pushed further and further down on the list of things to do. In such instances, I think the reporting mechanism can serve as a forum for the state to communicate its shortcomings, prioritise, and seek help. This is what we (UNDP) tried to advocate for in Malawi. I fear that many governments let the good become the enemy of the perfect when it comes to these reports. They are often unable to produce a ‘perfect’ report as they lack data and statistics, or because they are reluctant to tell the world about how their people are suffering. And so, they simply postpone the production of the reports. What we argued in Malawi was that it is ok not to have all the statistics and data, and it is ok to say that in respect of certain (or most) rights, we simply don’t know exactly what the situation is, but this is what some NGOs say about it. I recall one meeting in which a report by Finland under the CCPR was held up as an example. No wonder many government folks experienced a sense of despair and just felt like giving up when flicking through the pile of immaculate tables, graphs and illustrations.
I would suggest that we encourage our government counterparts to produce reports based on the information they have, whatever they have. Some states might allow civil society to make substantial contributions to the reports; this should obviously be encouraged. And even in the weakest of states, they will have a reasonably good idea of what the problems are and what the causes are, even if they don’t have the numbers to put in a neat excel sheet. Encourage them to be as honest as the political environment possibly allows, and show that their reports matter; that they are taken into account in the United National Development Assistance Framework (UNDAF) preparation process and in the design and implementation of programmes and projects. The message to be communicated, I think, should be that a report, any report, is always much better than no report.
Teresa Rodriguez , UNIFEM Mexico wrote:
From UNIFEM Mexico for E-discussion: Part 1:
How to encourage States to ratify HR Conventions and implement these obligations:
The World Programme on Human Right Implementation began on January 1st 2005. The first phase (2005-2007) of its Action Plan emphasized Education on HR , based on 9 principles, among these, participation and the analysis of chronic and emerging HR problems.
Governments have ratified the main HR Conventions, and the first obligation for their implementation rests with the States Parties. In order for HR to be legally enforced within national Laws, policies and jurisprudence, and the local legislation harmonized with Conventions, UNIFEM should pursue its wide dissemination of CEDAW, and when possible, inform and train on the Convention in order to promote its’ use. Public authorities are often unaware or reluctant to incorporate it within national development plans.
The texts should be made widely available in order to help implementation monitoring, and support offered to individuals and organizations reporting or following monitoring processes.
UNIFEM should continue to act as a catalyst, strengthening the relationship between States and the civil society; and continue to educate throughout the region towards Human Rights and Gender-sensitive public policies.
UNIFEM should also follow up on the recommendations of the Monitoring Committees, as these help determine future lines of actions and advocacy.
For example, in 2004-2005, observations were made on the possible negative impact of Free Trade Agreements (intellectual property agreements) on the allocation of budgets for social services, and on the accessibility of affordable medicine for children in Nicaragua and El Salvador.
Governments should have a strategy, a coordinated approach on the progressive implementation of the Conventions: participatory, problem identifying and outcome oriented, and focused on dialogue. UNIFEM can participate as an active member of Commissions, roundtables and other decision-making mechanisms.
The civil society and individuals also have an important reporting and monitoring role (violations and progress) on the governments’ responsibilities, commitments and accountability. UNIFEM plays a role in creating empowerment synergies.
As mentioned, we endorse all core HR Treaties, however our first main commitment remains on CEDAW. Important problems are deficiencies in knowledge and lack of training; the gender and racial opportunity gap; income differences and poverty, and violence against women (VAW) and HIV/AIDS affecting women and girls.
Second, depending on regional Field Officers, the focus should also be set on the issues (and related Conventions) affecting the countries of these regions. It would be interesting that regional Field Officers with similar challenges be able to share good practices/knowledge.
The collaboration of UNIFEM Mexico with Governments in Central America (CA): awareness-raising on specific issues:
VAW: CEDAW remains our essential focus of action.
Equality in Employment and Occupation, and elimination of Discrimination: we have been working these last years on the strengthening of small businesses, including home-based businesses, and on a regional Economic Agenda for Women, understanding this as a vital component of community and national economic development, and a poverty eradication strategy;
The Rights of Indigenous Peoples and Minorities: on-going efforts have been made these last years on advocacy, empowerment and networking of Indigenous women from CA and Mexico;
The Trafficking for Purposes of Sexual Exploitation: in CA, UNIFEM supports women’s projects on the prevention and prosecuting of trafficking, and on helping the victims. In December 2000, the UN adopted an International Convention against Organized Crime that includes a Protocol to Prevent, Suppress and Punish Trafficking of persons, especially women and children.
The issue of forced evictions and migration: thousands of Central Americans try to reach the US border; they are often stopped and, before being sent back to their respective countries, are abused, raped, and are sometimes killed. Persons illegally residing in borderline areas are exploited and have absolutely no rights.
The crime of Genocide was ratified by 133 States in 2001; CA is still a post-conflict region, with fragile democracies. UNIFEM supports women involved in peace-building processes.
Freedom of Information: 28 journalists were murdered in eight Latin American counties in 2006, while 5 others disappeared. With 10 deaths, Mexico is the most dangerous country for journalists in the region. Usually no one is held accountable.
Asao Shimizu , UNDP Lao PDR wrote:
Dear colleagues,
I would like to join Jennifer and Marcus for their view that the implementation of international treaties is a challenge. I would like to answer the discussion question 2 and touch upon the issue of implementation challenge raised by Jennifer.
As Marcus refers to his experience in Malawi, it is important to encourage the national counterpart’s ownership in reporting process of international treaties. Looking from the experience in Lao PDR, “capacity development” for the national implementation of international treaties is an important factor to build the capacity to go beyond the ratification of international treaties.
As I mentioned in my earlier e-mail, International Law Project in Lao PDR has two phases. The first phase (2001-2005) of the project was successful with the signing and ratifying international treaties. However, a challenge remained regarding the implementation and monitoring of international treaties. Therefore, the current phase II (2005-2008) focuses on the implementation and monitoring of international legal instruments. In answering a question raised by Jennifer, national capacity was not as strong as that of today at the time of ratification of international treaties. What seems important from the experience of Lao PDR is to continue to build the national capacity for the implementation of international treaties.
Capacity development of the national implementation mechanism is a large component of International Law Project. For example, if I cite the example of reporting process on international treaties on which both Jennifer and Marcus touched upon, Lao PDR has conducted workshops on the reporting process of CEDAW and ICERD. We have invited the CEDAW and ICERD committee members as resource persons to discuss the reporting process of each convention. Government officials and officials from relevant organizations in Lao PDR have participated in the workshops and discussed the draft report for further improvement. I heard that this is an interesting initiative (inviting committee members) that has not yet been done in many countries. For your information, linked * is a local newspaper article on the ICERD Workshop convened on 3 April 2007.
Simon Walker and Vittoria Berria , OHCHR Geneva wrote:
Dear colleagues,
we would like to share with you information on the newly adopted Convention on the Rights of Persons with Disabilities.
1. The Convention on the Rights of Persons with Disabilities and its Optional Protocol (containing an individual complaints and inquiries
mechanism) were
adopted by the UN General Assembly on 13 December 2006 and were opened for signature on March 30. As of today, the Convention has already been signed by 85 member states, including the European Commission, and ratified by 1.
The Optional Protocol has been signed by 45 States. The Convention and Optional Protocol seem likely to enter into force by the end of this year, after twenty ratifications for the Convention and 10 ratifications for the Optional Protocol.
2. The Convention on the Rights of Persons with Disabilities is a fully fledged human rights treaty including a social development perspective. It does not include new human rights, but rather includes much greater specificity in the obligations on States to respect the rights of persons with disabilities. It has been negotiated in record time (less than 5 years, the quickest negotiation of a human rights treaty at the UN) and has been drafted together with civil society - notably organisations of persons with disabilities from all over the world - and National Human Rights Institutions, an unprecedented partnership.
3. The participation of organisation of persons with disabilities in the negotiation of the Convention, together with the built-in mechanism for their continuing role in the implementation and monitoring, is proving a very strong ingredient of the wide commitment towards signature and ratification.
4. Implementation of the Convention will be monitored by a new Committee on the Rights of Persons with Disabilities (treaty body of independent
experts) and the role of States Parties in co-operating to improve implementation will be invigorated through a more active Conference of States Parties.
5. The history of the Convention is very young and it is therefore difficult for us to contribute further to the discussion, but we will keep participating and would welcome suggestions and recommendations that could improve our work on the basis of previous experiences and lessons learned for other human rights instruments.
Fernando Mora , UNDP Mauritania wrote:
Experiences from UN Mauritania in: Using international human rights norms and standards, and in particular human rights treaties, in the national context
Context: Mauritania has been since 1978 in the hands of militaries juntas. On 2005, the new one promised to handover the power to civilians. In the mean time, Mauritania held municipal, legislative, senatorial and Presidential elections between October 2006 and March 25, 2007.
Since April 28, 2007, Mauritania count with a civilian government, a parliament and a judiciary.
i. Experience in working to ratify human rights treaties? Challenge working with other partners.
One can say that during all this period of time, the role play by UN in Mauritania was limited to support the request made by the government. However, since 2005, our role become more active and we took initiatives in order to make sure that the government would understand how important was singing and ratifying human rights treaties. A strong advocacy strategy was necessary to persuade the government to place human rights issues in its agenda. The results, even modest, drove the authorities to take some actions: the country has a human rights Commissariat, women Secretariat – government level -, a National Human Rights Commission – independent body – and, for example, a delegation is going to NY to present both the governmental and the alternative CEDAW report. With a civilian government things could change more easily (more transparency, accountability, participation and pluralism).
In this context, it was essential to work hand by hand with all the partners and it worked pretty well.
ii. Experience gained? Working with other partners?
The more challenging issue here is to persuade governments that they have an interest in been part of international human rights treaties mechanisms. The only thing that they see, most of the time, is the obligations that they would endorse if they are part of such mechanisms.
Therefore, is essential to work closely with the civil society organizations, the parliament and key governmental actors, and partners in order to prepare a strategy in which, at the end, a national appeal comes to support your initiative. Doing so, you would learn more about the real needs on human rights issues, the human and financial resources of the country and, the political will. You will be ready, after that, to establish a dialogue with the government; you will have information and perhaps, good suggestions and alternatives in order to convince the government on signing and ratifying human rights treaties.
iii. Experience gained in helping countries to incorporate international human rights standards?
Depending of the national legal framework, it could be said that this needs a real strategy and knowledge (legal, institutional and political) in order to make sure that your action will contribute to maintain a coherent legal system, on the one hand, and a balance of powers on the other hand. Therefore, it is wise to suggest the setting up of an ad hoc Commission that would endorse this responsibility and to include the key institutions and the civil society.
My personal experience could be relevant for Mauritania in a near future. In fact, in the past as a lawyer, judge, university professor but more important as Advisor to one European Commissioner and two Prime ministers, I was integral on including human rights standards in all our work.
Last week, I prepared, for example, a legal opinion for the government of Mauritania, pointing out the challenges that it would face having 4 institutions working on human rights issues if their mandates are not properly clarify. Doing so, our initiative consists to make sure that all those institutions would find the right way to together protect, monitor and implement human rights treaties. I apologize for be so long. All my best,
Noha Aboueldahab , UNDP New York wrote:
Dear Colleagues,
It has been interesting to read your experiences in some of the challenges countries face in implementing international human rights treaties. I would like, however, to draw attention to the theoretical debates that shed light on some of the fundamental differences in approach to international human rights law and to conclude with the example of the International Criminal Court’s (ICC) intervention in Uganda. Why, for instance, is there resistance - especially among ‘Third World’ countries - to certain international human rights norms that result in the non-ratification and/or poor implementation of human rights treaties by these countries? Generally, the term ‘Third World’ is used within a political context while the ‘developing world’ refers more to the socio-economic status of the countries that constitute it. I use the terms ‘Third World’ and the ‘West’ here because their political connotations are important for the purposes of this discussion.
I’d like to highlight the relevance of the Third World Approach to International Law (TWAIL) framework to our discussion. Although it lacks concrete proposals for international legal reform, TWAIL serves as an important mechanism of critique of the dominant international human rights system and thereby provides a platform on which Third World voices can be projected. [1] It refers to the Third World as a region unified through its colonial history and post-colonial present. TWAIL also highlights the opposition between local and ‘international’ conceptions of justice and human rights and operates on the premise that the so-called ‘international community’ is driven by Western hegemonic interests. As a result, the practice of international human rights institutions appear to have imperialist – or neo-imperialist – tendencies that mainly reflect the interests of the hegemonic West to the detriment of the marginalised and weaker Third World. It is therefore imperative to recognize the constraints of political hegemony on the independence of institutional practices and the adverse impact this has on the consistency in the way international human rights standards are enforced globally. It is useful to note here Simpson’s observation that there is a growing realization among international lawyers that international organisations “could only be successful if they embraced hierarchical forms.” [2] This may be considered as an implicit acquiescence to the neo-imperial order and an explicit institutionalization of it. [3] Its implications for Third World countries in particular are, of course, far from promising.
That said, an interesting example of the conflict between ‘international’ conceptions of justice and local forms of justice is that of the International Criminal Court’s (ICC) investigation into the situation in Northern Uganda. The ICC’s recent release of arrest warrants targeting the top leaders of the LRA has been highly controversial, as it is viewed by some as an obstacle to the peace-process between the LRA and the government. Debates on the controversial role of the ICC have centered on questions of accountability vs. amnesty / justice vs. peace – all of which are extremely important considerations when addressing conflict-stricken states in the Third World and how the international human rights machinery can and cannot account for them. Given the Rome Statute’s overriding principle that international criminal accountability must be ensured for those individuals who have committed crimes of grave concern to the international community (i.e. crimes against humanity, genocide, war crimes), the question becomes one of whose version of justice to pursue – the retributive justice advocated by the ‘international’ community, or the culture of forgiveness (not necessarily of impunity) practiced by many local communities, such as the Acholis in northern Uganda? While Uganda is a State Party to the Rome Statute and while its President referred the situation to the Court, it cannot be said that this decision had the full support of Ugandans, including the Acholi victims, and it also cannot be said that the referral was not politically motivated. The often-heard Third World protest that human rights are an imposition from the West and that they do not adequately address local social realities is thus better understood when placed within the TWAIL framework, which brings to the fore the issue that international human rights mechanisms cannot – and should not - be taken at face value.
I will stop here, but I hope this short spotlight on the ICC-Uganda case and its critique from a TWAIL perspective provides further insight on the challenges of reconciling national and international human rights standards and the subsequent challenges associated with ratification and implementation of international human rights treaties, stemming from these fundamental differences in approach to international legal practice.
A paper I wrote, entitled “Ode to Equality in an Unequal World. The International Criminal Court’s Investigation into the Situation in Northern Uganda – A Third World Approach to International Law (TWAIL) Inquiry” examines these issues – I would be happy to share it with those interested.
Gbemisola Akinboyo, UNICEF New York wrote:
D ear Colleagues,
Please find below my response to some of the questions posed in this part of the e-discussion: Ratifying Treaties; and Enshrining International Human Rights Obligations into National Law:
Ratification of Treaties
As earlier noted by Eun-Chim, I believe we can assume that the presence of a UN transitional administration in Timor-Leste contributed to the easy ratification and timely treaty reporting by the state. However, in many developing countries, ratification of human rights instruments is rapidly done without involvement of the people, sometimes to satisfy powerful forces at the international arena. Very rare will reservations be made until it comes to implementation.
While the process of drafting treaty periodic reports could involve the UN especially in providing relevant materials, a ddressing the lack of capacity among member states is completely neglected when the UN decides to draft the report and get government endorsement. The UN Mauritania approach is commendable as the initial focus was on assessing the capacity gaps of the new civilian government to guide strategic choices for programming at the country level. Identifying the capacity gaps enabled the UN to strengthen government capacity and to ensure that it better understood its responsibilities in signing and ratifying treaties. The increased accountability of government to fulfil its obligations led to the establishment of an independent National Human Rights Commission and a Women’s Secretariat. An important lesson learned from Fernando’s contribution is the lead time required in adopting an appropriate strategy for working with national partners. Often, alliance with civil society is a crucial factor.
The TWAIL framework proposed by Noha should be given greater consideration in the human rights discourse. It reminds me of the Bakassi territorial dispute that came before the International Court of Justice in 2002. Following the ICJ judgment that Nigeria should surrender Bakassi to Cameroon, the occupiers of the land had a series of unanswered questions as they felt the judgment was unfair and that the ICJ should only set moral precedents.
Is the ICJ recognized by the permanent members of the United Nations?
What percentage of member nations accepts ICJ compulsory jurisdiction?
Was the judgment sorely dependent on history without considering the aspirations of the locals or where they actually came from?
Can we use the international law to uproot people from their land?
How do you handle perversion of justice from ICJ?
Lessons Learned from domestication of the Convention of the Rights of the Child (CRC) in Nigeria
Managing conflict of ideas
Following a review by the Compatibility Committee set up in 1997 by the military government in Nigeria, the Child Rights Bill was not promulgated into law. Moreover, when the draft Bill was later presented to the National Assembly in 1999, it was confronted by two formidable problems.
Perceiving the Bill to be an Executive Bill, the House of Representatives thought that rejecting it would be a way of getting back the respect of the principles of separation of powers from the Executive. Surmounting this obstacle was a major challenge.
Secondly, most parliamentarians feared that the Bill was a Western concept that violated the cultural and religious beliefs of the people. The ethno-religious compatibility problem was heightened with the adoption of the Sharia Penal Codes and the Sharia Codes of Criminal procedure in the country. Understanding and recognising people’s sensitivities had to be fully addressed in the provisions of the legislation and in the advocacy materials produced. For example, detailed explanations were provided about why harmful cultural practices would have to end.
Coherence in advocacy and partnership strategies
The political, cultural and religious disagreements combined with the poor advocacy work on the part of the stakeholders of the bill made it easy for the National Assembly to throw out the bill in October 30, 2002. However, immediately after the bill was thrown out in 2002, UNICEF launched an aggressive advocacy campaign and sent press statements on the rejection of the Bill to the media. Strategic partnership for the first time was extended to the media and Children. The Children’s participation was of paramount importance, without which the Nigerian success story might not have happened.
Meetings and discussions held with media executives helped build their understanding that working for children contributes to the future of the country. The media consultations resulted in widespread publicising and disseminating of information on various child rights violations in the country. The new momentum created by the media brought pressure on the National Assembly and made the law makers defensive on why they had rejected the bill.
The National Human Rights Commission and the academia supported the drafting of the bill and defended it at public hearings, while NGOs provided expertise on advocacy. The children representatives also served as the voices of Nigerian children making excellent speeches and appeals to the parliamentarians at public hearings. Other stakeholders included the line Ministries of Women Affairs, Justice and Information. Involving national institutions was critical for the successful passage of the Child Rights Act; in particular, the role of the Commission was remarkable in building bridges between the executive, legislature, judiciary, civil society, children and international organisations in the passage of the Act. These linkages and partnerships have developed into a network that is being effectively used today by stakeholders and advocates in human rights discourse.
Timing
Advocacy efforts intensified for the passage of the Bill as the 2003 general elections approached. Legislators were beginning to disperse so as to campaign for re-election. This meant that the onerous task of passing the Bill had to be completed within one year or begin the battle all over again with new legislators.
Matt Pollard and Esther Schaufelberger , Association for the Prevention of Torture (APT), Geneva, wrote:
Hello,
Our contribution to this very interesting discussion raises two challenges facing those UN field agencies, including UNDP, whose general mandate is not exclusively focussed on human rights, when they undertake work in areas that could engage specific obligations of the State under international human rights treaties. The two challenges we discuss below are:
1. Identifying the Range of Human Rights Obligations Implicated in non-Human Rights Projects;
2. The Role of External Consultants/Experts.
Before examining these issues in more detail, we will explain a bit about the nature and scope of the expertise of our organisation, the Association for the Prevention of Torture (“APT”).
Introduction
Though our organisation is based in Geneva, we work primarily through in-country projects to work cooperatively with governments and civil society to assist them to implement obligations under:
- the Optional Protocol to the UN Convention against Torture (“OPCAT”);
- the main UN Convention against Torture (“UNCAT”);
- certain aspects of the International Covenant on Civil and Political Rights (“ICCPR”) relating to deprivation of liberty; and
- other international and regional standards relating to torture and other ill-treatment, and conditions of detention more generally.
The work we do in-country varies depending on the national context, but primarily includes:
- workshops and direct advice on, among other things, amendments to legislation and design and implementation of national mechanisms for human rights monitoring in places of detention;
- training and capacity-building of national human rights institutions, non-governmental organisations, and law enforcement personnel;
- promotion of independent monitoring of all places of detention (including through promotion of ratification of the UNCAT and OPCAT).
In-Country Institutional Mechanisms / Strategies
We view signature, ratification, or accession to a human rights instrument by a country not merely as creating a new set of obligations for the government, but also as an opportunity to build a more open and trusting relationship between various actors at the national level. Thus, when we visit a country we try to bring government officials, the national human rights institution, non-governmental organisations, and relevant international and regional organisations, face-to-face at roundtables or workshops to start or advance national dialogue on issues related to torture, other ill-treatment, and the situation in places of detention in the country.
Traditionally our main partners in this work have been governments, non-governmental organisations, and the Office of the UN High Commissioner for Human Rights (OHCHR). However, with the increasing activity of other UN Agencies in the areas of criminal justice reform and human rights based approaches to development, we have more recently increased our contact and cooperation with other agencies in the field. For instance, we now seek always to meet at least with the UNDP Resident Coordinator or Resident Representative each time we visit a country.
As the role of national mechanisms was identified as a specific issue for discussion, we should also highlight that the Optional Protocol to the UN Convention against Torture is directly aimed at the establishment or enhancement of a specific national institutional mechanism to help monitor and implement the State’s compliance with the main UN Convention against Torture. Thus the Optional Protocol describes the characteristics for an independent body of experts at the national level to monitor all places of detention in the country through a system of regular visits. It outlines the composition, powers, and methodology of such national institutional mechanisms (which it calls “National Preventive Mechanisms”). This is a central focus of our organisation’s work at the moment and we are happy to provide further details on request (or via our website, www.apt.ch ).
Though our experience with UN agencies other than OHCHR remains relatively new and limited, we have already noted some trends and tendencies, and possibilities for mutual support, in a variety of contexts. Before setting out some of the challenges and problems we have encountered, we would like to stress that we are aware that other agencies are still relatively early-on in the process of rolling-out training and direction on human rights matters to personnel in the field, so it is understandable that such challenges and difficulties are occurring. Our point is not to criticize such situations, rather we seek to alert officials in these agencies in the field to the existence and nature of “hidden issues” in the areas in which we work and to offer whatever suggestions and assistance we can in that regard.
Identifying the Range of Human Rights Obligations Implicated in non-Human Rights Projects
First, one of the challenges we see for UN agency country offices (and anyone undertaking similar work at the national level, for that matter!) is identifying at the outset of projects that are not on their face “human rights projects”, the various international obligations and expertise that may be implicated by that project.
To give a concrete example, we have encountered situations where UN-funded projects for justice sector reform, and particularly the drafting of new or overhauled legislation (criminal/penal codes, codes of criminal procedure, evidence laws, etc.), has produced draft legislation that does not include legislative provisions expressly required by the UN Convention against Torture (UNCAT), and/or provisions consistently requested of States Parties by the treaty bodies under the UNCAT and ICCPR (for example, a specific offence of “torture”, exclusion of certain normal criminal defences, exclusion of all evidence obtained by torture, establishing extraterritorial jurisdiction over torture offences, etc.). This can create a certain degree of confusion for the governments involved, when they subsequently appear before these treaty bodies and may be criticized by the body for having enacted exactly the legislation proposed by a UN office or UN-arranged international expert. When we have explained to certain governments that they need to make additional changes in order to avoid negative reactions from the treaty bodies, the government may respond “but we depended entirely on the consultant’s expertise”, and this reliance is particularly understandable where the country has little or no existing capacity or expertise in the area.
As another example, in some countries UN agency country offices may become involved in the establishment or improvement of national human rights institutions. For States that are signatories or parties to the Optional Protocol to the Convention against Torture (OPCAT), the treaty contains a variety of obligations concerning “national preventive mechanisms” which may have direct application to the legislation concerning the national human rights institution (if it is also to serve as a “national preventive mechanism” under the OPCAT). These are over-and-above, and more specialized than, the provisions of the “Paris Principles” for national human rights institutions. Indeed, some aspects of the “Paris Principles” are not necessarily compatible with OPCAT requirements. Thus, a national human rights institution that implements the criteria of the Paris Principles may still fail to meet the requirements of the OPCAT.
As a third example, concerning national immigration laws and administrative systems, full implementation of a State’s obligations under the Refugee Convention may not fully achieve the requirements of the UN Convention against Torture and ICCPR. In circumstances involving the commission of serious crimes / security concerns, the Refugee Convention may permit a State to deny status and to return to his or her country of origin someone who would otherwise qualify as a refugee (because he or she would face persecution upon return). The prohibition in the UN Convention against Torture, on the other hand (which also arises under the ICCPR), applies to a narrower range of threats in the country of origin (i.e. specifically torture, and not persecution generally), but applies to all persons in the territory or custody of the State regardless of their status, and has absolutely no exceptions, no matter how heinous a crime the person may have committed or how grave a security threat they may pose. Thus, immigration law/procedure reforms usually require additional specific provisions in order to fully meet the international obligations under both treaties.
The first challenge, then, is how to identify at the outset the complicated set of international human rights obligations that may be engaged by a non-human-rights-focussed project. With the examples above, we hope that we can illustrate or contribute to a sort of “early warning” system whereby UN agency field offices can better anticipate such “hidden” implications of rule-of-law or other broader sectoral reform projects. We do not know whether a specific “checklist” of these sorts of issues is made available to non-OHCHR UN field staff, but this might be one way of “systematizing” the range of issues and expertise required for such projects.
Our organisation do have resources available to address many of these issues in the specific area in which we work (for instance, a study on criminalisation of torture under the UNCAT; a Guide to Establishment and Designation of National Preventive Mechanisms under the OPCAT, etc.)
Dealing with External Consultants/Experts
A second challenge is how to deal with the possibility that experts with detailed knowledge of criminal justice, policing, immigration, prison administration, etc., may not always be experts in the full range of international human rights law that could be involved. This is not in itself surprising; when a UN agency identifies and proposes an international expert consultant to assist a government in a programme of reforms in an area such as criminal justice reform, we would expect that you naturally look for someone who has experience and expertise with criminal justice systems at the national level (whether in their own country or other countries). Yet, this qualification does not guarantee that this person has sufficient knowledge of the full range of specific obligations under international human rights treaties that might be relevant. Thus the reforms they propose may or may not satisfy those obligations.
As we understand it, the usual practice is for a UN Agency field office to seek a single consultant for particular pieces of legislation / projects / issues. As we understand it, once the consultant is matched with the government, the UN Agency may play little or no role in reviewing the consultant’s specific recommendations to the government or advising the government on those recommendations. That is, once the agency has made the arrangements, subsequent contact takes places directly between the consultant and the government. We are not sure how the qualifications or the scope of the consultant’s expertise, and the expected quality of the consultant’s work, is communicated to the government by the UN Agency – specifically, what limitations might be called to the attention of the government. We do not know whether there is a uniform practice across UN Agency country offices in this regard. What we do know is that when we have explained to certain governments that they need to make further changes to (in some cases brand-new) proposals from UN-provided consultants, in order to avoid negative reactions from the treaty bodies, some governments respond “but we depended entirely on the consultant’s expertise”. Rightly or wrongly, the government seems to believe that if a UN-provided expert recommends they do something, that advice must by definition already be consistent with the expectations of all other UN bodies, including human rights treaty/charter bodies.
On the one hand, it may be that this is a question of incorrect expectations on the part of the governments in question, and that more clarity or forcefulness is required at the outset by UN Agencies in explaining the limitations of reliance on the external experts provided, and the continuous and long-term dialogue through which UN Human Rights Bodies seek progressive improvement through treaty reporting procedures. I.e. – no matter what a government puts in place today, it is likely that one or another of the UN human rights bodies will identify gaps/shortcomings that remain and require further changes in the future.
On the other hand, we wonder whether any measures could be taken to reduce the risk that the recommendations delivered to governments omit important international human rights obligations of the State. For instance, would it be feasible for UN Agencies to have human rights experts within the UN vet UN-arranged consultant’s recommendations? Or to refer UN consultants’ recommendations to relevant and appropriate international NGOs for review? Or to require that the consultants do so (i.e. in the terms of reference)? Or to institute a practice of contracting teams of experts, rather than single consultants, to work on particular sectoral / legislative reforms? While we are not sure of the full range of possible solutions, we would encourage UN Agencies both at the central and in-country levels to consider and discuss this issue further.
Conclusion: We are ready to assist
As mentioned at the outset, our contribution to this very interesting discussion is intended to uncover some of the human rights obligations that can easily be overlooked when undertaking reforms in sectors such as rule of law, criminal justice, administration of justice, immigration, national human rights institutions. Our contribution is itself, of course, limited to those areas in which we have experience! As noted above, in highlighting these particular issues we are not seeking to criticize but rather to bring out common issues and seek solutions. This email discussion list has greatly impressed us as a means for sharing knowledge and resolving human-rights-related issues within field offices of various UN Agencies, and we will continue to follow your discussions with great interest!
Please do not hesitate to contact us if you are beginning projects in any of these areas, if you have any questions about or suggestions relevant to our work, or if we can otherwise be of any assistance. The Guide to establishment & designation of national mechanisms under the OPCAT is available on our website (www.apt.ch ) and the criminalisation article is available on request.
Maymuchka Lauriston , OHCHR Uganda wrote:
Dear colleagues,
OHCHR Uganda has worked both with "right holders" and "duty bearers" on the implementation of treaty body recommendations. Uganda is a state party to ICCPR, ICESCR, CEDAW, CERD, CRC, CAT and CMW. A workshop was first held at the national level with representatives of the governments (from Ministers, local government, army, police, prison), NHRI, civil society, media and UN agencies to look at the recommendations made by the various treaty bodies, look at their implementation status and see how they can be better implemented. A national action plan was adopted following the workshop to identify areas that needs improvements on each treaty and which stakeholders (government, NHRI, civil society, media, UN) can help implement the recommendations. Similar workshops have also taken place at the national level, in order to prioritise at district level parts of the action plan. A focal point for each action has been designated in each district and OHCHR is working closely with the focal points towards the realisation of these actions to eventually reach the implementation of the recommendations at national level.
In addition, as Uganda has not submitted its initial report on ICESCR, OHCHR Uganda has organised together with the Ministry of Health a workshop on the right to health. In addition, OHCHR is sponsoring a research on the status of ESCR in Uganda and is facilitating the training of civil society organisations and government on ESCR. This we hope will help kick start the discussion for the writing of Uganda's initial report to the CESCR.
Lastly, in response to the contribution on Justice in Uganda, I would like to add that OHCHR does not condone the artificial polarisation of peace versus justice but rather is advocating for a combination of both: peace and justice. OHCHR strongly advocates that durable peace can not be reached without justice and accountability mechanisms. In addition we have just finished a survey of the population of Northern Uganda on the issue of peace and justice and the preliminary findings show that the majority of the population want some sort of justice: a blanket amnesty or traditional forms of justice are not necessarily enough. I attach here for your information, OHCHR Uganda's "Options Paper on Transitional Justice" distributed to the negotiations team at the Juba Peace Talks. Asao Shimizu , UNDP Lao wrote:
Dear Colleagues,
I would like to thank the facilitator for posing an interesting and important question on the issue of “rights holders” and “duty bearers.” As touched upon by Matt and Esther, the implementation of HRBA is a challenge for field offices as it is a new initiative that we are trying to work with. Actually, the demand for the capacity development of UNDP field officers on HRBA was one of the topics touched upon during another discussion at another network, ap-a2j. I am very grateful for the UNDP Regional Centres to have been organizing HRBA trainings for field staff.
When we speak of “national” capacity development for the ratification and implementation of international human rights treaties, distinction is not yet made between the “rights holders” and “duty bearers” for the project activities implemented by International Law Project in Lao PDR. This is partly due to a fact that HRBA was not applied in the project formulation phase. HRBA was not applied in identifying a project goal and strategies. In situation analysis, rights holders and duty holders were not identified. It would have been interesting if HRBA was applied in the formulation phase because that might have led to slightly different outputs and strategies for the project.
It might be less complicated for other countries to identify rights holders if they have civil society. We are operating in the single party state where the concept of civil society is irrelevant. Although there is no national NGO, there are government-run “social organizations” that represent the interests of rights holders and vulnerable groups. For example, we have Lao Disabled People’s Association (LDPA) which is located under the Ministry of Labor. They are a membership-based organization with funding from outside the government budget. LDPA and International Law Project convened a workshop to discuss the UN Convention on the Rights of Persons with Disabilities in March 2007. If HRBA was applied in the project formulation phase, we could have strategically identified more groups that can represent the interests of rights holders. The partnership between LDPA and the project was a result of the project’s strategy to increase its visibility. LDPA has viewed a news article on the project activity, and approached the project for the partnership.
On the issue of social organizations, I am happy to report here that we have a pipeline project on “Enhancing Government Partnership with Social Organizations for Poverty Reduction.” The project will be of great benefit for the application of HRBA to work with “rights holders.
Despite of the above challenge we face, our Governance Unit has been doing our best to promote the application of HRBA. We have decided to include the application of HRBA in programming cycle in the RCA for all Programme Officers this year. We will apply HRBA from the formulation phase to evaluation phase. Since we will mainstream HRBA into the TOR of mid-term evaluation missions, it will be possible to identify the status of rights holders and duty bearers even for the projects that did not engage HRBA initially in the formulation phase.
Having mentioned the challenge for the capacity building of rights holders, I would like to highlight some activities that International Law Project conducted for the national capacity development of the ratification and implementation processes of international human rights treaties. (The main target so far is the duty bearers.) :
Ratification
Workshops to discuss the benefits for the country to ratify selected international legal instruments (Participants are concerned ministries.)
Implementation
Awareness-raising workshops on selected international treaties
Government officials from the legal sector participating in trainings aboard on the selected themes of international law
Government officials’ study visits to other countries to learn about their experiences with the national incorporation of international law
Where appropriate, UNDP has assisted the project with identifying technical experts from the UN family to assist the project activities. For example, we have invited an HRBA expert from OHCHR when we convened the HRBA awareness raising workshop in May 2006. We have benefited from the expertise of OHCHR, UNCEF, ILO, FAO and WFP. The project implements the activities not only at the central level, but also at provincial level covering the whole country in light of the government policy on decentralization. This has been a good exercise as some vulnerable groups tend to live in the remote areas because of geography.
As mentioned in my first posting, the capacity building of duty bearers has been quite successful because of the capacity and coordination skills of the Ministry of Foreign Affairs backed by their technical expertise in international law.
Sinisa Milatovic , UNDP Serbia wrote: Dear Colleagues,
UNDP Serbia has engaged in a number of projects that have sought to bring national legislation in line with the norms and standards of international human rights treaties while also emphasising the importance of the implementation of those treaties.
Serbia became a state party to the "big 6" human rights treaties soon after the fall of the Milosevic regime. In addition, it has a fairly well organised civil society which is successful at mobilising the 'rights holders'. Therefore, the struggle has been to get the 'duty bearers' to implement the treaties and related national laws.
Experiences:
1. UNDP Serbia executed a project together with the Judicial Training Centre on the direct implementation of human rights treaties by judges and prosecutors. As is the case in many countries, under the previous Serbian constitution (the same is true under the recently adopted one as well), international treaties are directly applicable by the judiciary. However, the socio-political circumstances in the country over the past 17 years have caused the judiciary to be depleted of quality staff, with a consequent lack of knowledge on international human rights law.
Therefore, our project focused on training judges and prosecutors on certain rights (for example, the freedom of expression), with a focus on comparing national Serbian law and the jurisprudence of Serbian courts with international treaty law and the jurisprudence of international human rights bodies such as the Human Rights Committee. The training seminars were held in a number of courts across Serbia.
The lecturers (one a local judge, another an expert on international human rights law) were then asked to produce a chapter which compared, in grater detail, Serbian law and jurisprudence with international human rights law and jurisprudence, and provided recommendations on where international law could be applied directly due to the fact that Serbian law does not comport with international standards in this field. These chapters have been compiled and edited to form a manual for judges and prosecutors, which will be published (in Serbian only) this year.
2. UNDP Serbia has undertaken an initiative with the government of Serbia of drafting the Anti-discrimination Act. The adoption of an AD Act has been demanded by civil society, the UN Human Rights Committee and the EC. The drafters (a group of experts put together by the Government and UNDP) of the AD Act focused, in large measure, on drafting a law that would be in compliance with international treaty provisions on discrimination, use the best solutions from comparative laws and be consistent with domestic norms and the Constitution.
The process of drafting the AD Act went through the following steps:
a) the writing of a Feasibility Study which provided a comprehensive overview of current laws that deal with discrimination, international and comparative norms, and issues facing vulnerable groups in Serbian society,
b) The writing of the Draft AD Act, which stipulates the creation of a national Commission for the Protection of Equality
c) a public consultation process in which a number of government institutions, civil society actors, international and national experts were consulted, and the Act was constantly amended in line with recommendations received. During this process it was adjudged by a number of experts that the Act is in compliance with international standards
The Draft AD Act has been finalised, and currently awaits the formation of a new Government and Parliament before adoption.
Lessons learned from the projects (by project):
1. Many duty bearers in Serbia are resistant to directly implementing international treaties, in part due to their lack of knowledge of the subject and in part due to a parochial mind-set. Therefore, it was important to have one of their own- i.e. judges and prosecutors- train them on the topic.
In addition, the comparative approach was a success as it focused on areas in which the judges and prosecutors are experts - domestic law - while also seeking to introduce new concepts and areas of law (international human rights treaties and related jurisprudence).
2. a) the effective protection of human rights requires strong national human rights institutions. Such institutions, which include Ombudspersons and national human rights committees, are the hallmark of societies with an advanced and independent system of human rights protection. Therefore, the creation of the Commission for the Protection of Equality by the Draft AD Act marks an important step in developing such a system. The Commission’s competences and independence should lead to its development into the key institution for policy-making in the field of anti-discrimination, as well as the monitoring and the implementation of anti-discrimination laws.
The durability of the Commission and, in fact, of the results achieved in the course of the project, depends, however, on further support being provided to activities in this field. The project, as was envisioned, has provided a founding stone for the creation of an anti-discrimination normative and institutional framework. Nevertheless, the impact of the project will be dulled unless the Republic of Serbia receives more technical and logistical support designed to build upon the foundation created.
b) In order to create the best possible law that seeks to introduce international and comparative human rights standards in national law and widespread political support, it is necessary to consult a wide variety of stakeholders and experts. Therefore, we placed equal emphasis on hearing the voices of those representing vulnerable groups as well as on those of government officials. Moreover, we used (for the most part) national experts to draft the AD Act, with international experts being called in to provide feedback on the Act rather than draft the Act itself. This made the contents of the Act more palatable to the more conservative elements in society.
Should any of you have nay questions or want to see any of the documents produced in the course of the above-mentioned initiatives, I will be at your disposal.
Justine Assilevi , UNDP Togo wrote:
English Translation:
Togo is signature to a number of international human rights instruments from 1960 up to this day; for example, the 1948 Universal Declaration on Human Rights, the Conventions on civil, social, political, economic and cultural rights of 1966; as well as an arsenal of international conventions on human rights, such as the Convention Against Torture; the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of the Child (CRC). Togo is also signature to many regional (African) human rights instruments. These included the African Charter on Human and People’s Rights; The Maputo Protocol on the Rights of Women in Africa, and the African Charter on the Rights and Welfare of the Child (CADBE).
These instruments are implemented by specific committees coordinated by ministries according to their expertise in a precise domain, with the support of civil society organisations. Each committee functions according to the domain of expertise of its supporting ministry.
There is an inter-ministerial Committee that drafts the initial and periodic reports for treaty bodies on the human rights situation in the country. The different thematic committees write the first drafts of the rapports and pass them on to the inter-ministerial Committee for their validation and transmission to the responsible bodies in New York, Geneva…..
It is worth mentioning that the inter-ministerial Committee includes:
- the representatives of different ministries
- the representatives of different thematic committees (CEDA/CRC/CADBE)
- the representatives of human rights civil society organisations
- development partners
Such a mechanism was put in place to ensure the effective implementation of the conventions, treaties and international agreements to which Togo is party too.
One of the challenges faced is the slowness of the process due to the chain of committees and the insufficient funds allocated for the effective operation of the inter-ministerial committee in charge of drafting the initial and periodic rapports on human rights in Togo.
A proposed solution to this challenge is the possibility of merging the thematic committees at the heart of the inter-ministerial Committee and to strengthen its capacities.
Original French Version:
Le Togo est partie signataire de plusieurs instruments internationaux sur les droits de l’homme depuis 1960 jusqu’à ce jour. On peut citer entre autres les instruments internationaux tels que la Déclaration Universelle des Droits de l’Homme de 1948. Les droits socio-politiques et culturels de 1966 ; en plus d’un arsenal de conventions internationaux en matière de droits humains comme la convention contre la torture ; la convention sur l’élimination de toutes formes de discrimination à l’égard des femmes (CEDEF/CEDAW), la convention relative aux droits des enfants (CDE). Le Togo est également signataire de beaucoup d’instruments régionaux (africains) sur les droits de l’homme. On peut citer entre autres la Charte africaine des droits de l’homme et des peuples ; le protocole de Maputo sur les droits des femmes, la Charte africaine des droits et du bien-être de l’enfant (CADBE).
Ces instruments sont mis en œuvre par des comités spécifiques coordonnés par des ministères en raison de leur compétence dans un domaine thématique bien précis avec l’appui des organisations de la société civile. Chaque comité fonctionne selon le domaine de compétence de son ministère de tutelle.
Il existe un Comité interministériel de rédaction des rapports initiaux et périodiques sur les droits de l’homme. Les différents comités sectoriels élaborent les premiers drafts desdits rapports et les transmettent au comité interministériel pour validation et transmission à qui de droit à New York, Genève, ……
Il est à mentionner que ce Comité interministériel regroupe :
- les représentants de différents ministères,
- les représentants des différents comités sectoriels (CEDEF/CEDEAW, CDE, CADBE),
- les représentants des organisations de la société civile sur les droits de l’homme
- les partenaires au développement,
Un tel mécanisme a été mis sur pied pour assurer la mise en œuvre effective des conventions, traités et pactes internationaux auxquels le Togo est partie.
L’une des difficultés rencontrées est la lenteur des procédures dues à la chaîne de comité et l’insuffisance de fonds alloués au fonctionnement du comité interministériel de rédaction des rapports initiaux et périodiques sur les droits de l’homme au Togo.
L’une des solutions envisagées est la possibilité de fusion des comités spécifiques au sein du Comité interministériel et le renforcement des capacités de celui-ci.
Lee Swepston , ILO Geneva wrote:
Dear Colleagues,
I have been reading with interest the exchanges on this subject, all of which have been both useful and encouraging. I wanted to add another dimension.
All of the contributions so far have concerned the UN machinery, as the reference point of human rights machinery. This is of course the main reference for most of the correspondents, who are officials of the UN and its funds and programmes. You might want to be aware that there is another, more detailed but less broad machinery, that is operated by the ILO. The ILO, which has existed since 1919 and has been adopting Conventions since then, has a detailed supervisory mechanism that covers many of the same points as the UN human rights machinery, but often in more detail because of the nature of ILO conventions. For instance, on child rights, the ILO's Conventions Nos. 138 and 182 contain detailed provisions on the conditions under which children can enter the world of work, and on the kinds of work that are permitted, conditionally permitted, and absolutely forbidden to children. The freedom of association and collective bargaining Convention, No. 87, is referred to in both UN Covenants, and develops these concepts much more deeply than do those instruments.
In addition, the ILO's Committee of Experts on the Application of Conventions and Recommendations makes as many as 2000 comments a year on the application by States of the conventions they have ratified. These are all public, and published, and are intended to provide guidance from member states on how they implement these conventions. (All this information is available on www.ilo.org .)
It goes without saying that the ILO cooperates closely with the UN's treaty bodies. For instance the Committee on the Rights of the Child often suggests that governments ask the ILO for assistance, and the ILO regularly refers in its comments to the work of the CRC. The same happens with all the other treaty bodies. In fact, the new Migrant Workers Committee is required by its treaty to send all government reports to the ILO for comments before they are considered by the committee itself, and we are working out a very solid relationship with that committee.
While the ILO's machinery is detailed, it of course deals with a narrower set of issues than do the UN's various mechanisms. This arises from the nature of the conventions. The ILO's mandate is not, for example, child welfare generally, but rather the elimination of child labour specifically. While this does take us into other areas, this is done in close corporation with UNICEF, the UNDP, the national NGOs and many others. We have a mandate on the elimination of discrimination in employment and occupation, but not in society generally. And so forth.
Another aspect of this work is that the ILO has a commitment to helping States implement the conventions they have ratified. All technical assistance has to be done in conformity with conventions, and much of it is specifically oriented toward their implementation. In fact, more than half the ILO's technical co-operation budget is dedicated to human rights implementation. There are such specific programmes as the International Programme for the Elimination of Child Labour, the ILO's biggest technical cooperation programme, which works in more than 90 countries. There are also others that are more specific, such as our work on forced labour and trafficking, which are very closely tied to the implementation of the ILO standards, and all these take account of the comments made by the ILO's own human rights machinery.
I should also recall that the ILO is responsible for the Indigenous and Tribal Peoples Convention, 1989 (No. 169), in which much of the rest of the UN participated for its adoption, and which remains – unfortunately – the only international instrument to deal comprehensively with these peoples. There is a good promotional programme, called PRO169, well financed by DANIDA and a few others, that works mostly in countries where the issue is not an easy one to talk about – i.e., in Africa and Asia. Whenever feasible, this programme works with the OHCHR.
There is much more say about all this, of course, and detailed information can be found on the web site.
In summary, it would be useful for all of us to be sure to take account of the full range of international human rights conventions, and not stop with those of the United Nations. There are often aspects of ILO conventions that supplement, or go into more detail, than do the UN instruments.
Suki Beavers , UNDP Pacific Centre, Fiji Islands
Dear Colleagues,
Thanks to the contributors thus far for their important postings on our e-discussion on How to Strengthen Engagement with the International Human Rights Machinery?
Many important issues have been raised by the discussions to date. We would like to pick up on some of those themes, but also hear from other network members. In particular we would like to encourage discussion on issues related to capacity building of both ‘rights holders’ , and ‘duty bearers’* , both in relation to ratification and implementation at the national level . It would be really beneficial to hear experiences about how the UN has provided support and capacity building to either/both civil society and governments in this process.
Hearing these kinds of experiences would lead us naturally into examining the other 2 questions in this first section of the discussion. They are:
1. What experiences have you gained in helping states bring national legislation and policy in line with the norms and standards of international and regional human rights treaties?
- What have been the lessons you have learned in helping
countries bring national law into conformity with international and regional human rights obligations? What strategies can you recommend to move the process forward?
- What are your experiences of using human rights norms and
standards to impact public policy, for example, decision making at the national and local level, proper budgetary allocations, training of government officials etc.?
2. What is the role of institutional mechanisms (such as National Human Rights Institutions, Parliaments, National Committees that deal with specific human rights treaties etc.) in both implementing and monitoring human rights treaties?
We look forward to the continued discussions.
Benoit Pylysener and Christine Umutoni UNDP Rwanda wrote:
Dear colleagues,
Rwanda is a state party to the following International Human Rights Treaties:
1. International Covenant on Civil and Political Rights (ICCPR) Accession in 1975
2. International Covenant on Economic, Social and Cultural Rights (ICESCR) – Accession in 1975; reservation on Article 13 (on compulsory and free primary education)
3. International Convention on the Elimination of all forms of Racial Discrimination (ICERD) – Accession in 1975; reservation on Article 22 (on social security including social insurance)
4. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) – Ratification in 1980
5. Convention on the Rights of the Child (CRC) – Ratification 1991
The Constitution of 2003 reaffirms Rwanda’s adherence to these treaties and the Universal Declaration of Human Rights in its Article 9 (Preamble to the Constitution of the Republic of Rwanda, 2003).
The Government of Rwanda however is more than 5 years overdue in reporting on 4 Human Rights Treaties it has ratified (in red).
ICCPR ICESCR CERD CEDAW CRC
EIF: 23-03-76
2nd report
examined Nov 87
CCPR/C/46/Add.1
3rd – 5th periodic reports due since 1994
OP1: No action
OP2: No action EIF: 03-01-76
Initial examined in Feb. 1989
E/1984/7/Add.29
3rd – 4th periodic reports due since 1990 EIF: 16-05-75
8th – 12th periodic reports
examined March 00
CERD/C/304/Add.97
13th - 15th periodic reports due since 00
Declaration art. 14: no EIF: 03-09-81
3rd periodic report
examined February 1993
A/48/38 paras. 451-473
4th -6th periodic reports due since 1994
OP: No action EIF: 23-02-91
2nd periodic report CRC/C/70/Add.22
examined in May 04
CRC/C/15/Add.234
Next report due:
22/02/2008
OP-AC: EIF: 12-02-02
Report due: 23-05-04
OP-SC: EIF: 14-04-02
Report due: 14-04-04
As can be seen in the above table, the CRC is the only Treaty that has been reported on. This is mainly thanks to the efforts of UNICEF and its strong mandate in supporting the Government in elaborating the reports. In the light of the UN reform and the Action 2 program in Rwanda, the UN Country Team and UNDP are looking at ways on how to best support the Government in establishing closer links with the International Human Rights System, thus rendering it more effective and efficient.
In the first approach UNDP, through its support project to the National Human Rights Commission, supported the idea of creating a coordination framework for human rights in which the HRC, CSOs (national and international) and development partners are represented. The coordination framework is a forum for dialogue and exchange of information and will help to improve the sometimes strained relation between the HRC and CSOs. The coordination framework is also to become a forum for capacity building in the promotion of human rights and the elaboration of both Treaty Body and shadow reports. In the future it should also become a forum for protection activities.
In the second approach, intertwined with the first one, UNDP in collaboration with the UNCT, will support the Government in the actual report writing through a joint UN program in line with the Action 2 program. The project will have the following objectives (we would like to thank our colleagues in Laos for sharing their project document):
- Strengthened capacities for national incorporation and application of international legal obligations into the Rwandan legal system
- Strengthened capacities for implementation and enforcement of international law in Rwanda at national, provincial and local levels
- Developed and enhanced mechanisms and capacities in Rwanda (Government, Rwandan Human Rights Commission and Civil Society Organizations) for monitoring and reporting on implementation and enforcement of international law and progressive realization of international legal standards
- Improvement and strengthened cooperation between Government, national human rights institutions and organizations as well as international development partners and regional and multilateral bodies
The project would be Nationally Executed by the Ministry of Foreign Affairs in collaboration with the Ministry of Justice and the Ministry of Youth (Inter-ministerial Committee), the National Human Rights Commission and CSOs.
At the end of May the High Commissioner will pay visit to Rwanda, this will be the opportune moment to renew the UNCT commitment to the Treaty Bodies and the OHCHR. In analogy to UNICEF and the CRC, we believe the UNCT can play a more active role in supporting the Government to strengthen its reporting capacities.
Bipin Adhikari, UN Liberia wrote:
Dear friends, Thanks for this important initiation. Emerging from a long civil war, Liberia is gradually restoring the law and order situation, reviving its institutions and governing bodies, and implementing the agreed strategy on strengthening the rule of law and addressing the culture of impunity in the country. An elected government has already been instituted, and reform initiatives could be noted in all sectors. As far as ratification of international human rights instruments are concerned, long before the general elections were held, on 22 September 2004, Chairman Gyude Bryant of the National Transitional Government of Liberia (NTGL) was able to sign, ratify and accede to 17 human rights Protocols and Conventions that guaranteed human rights and provide for the protection of civilians (as expected by the United Nations Mission in Liberia in the best spirit of the Comprehensive Peace Agreement (CPA), the basic transitional document, which was signed in August 2003 in Accra to end the civil was. The signing ceremony took place at the "Focus 2004" Treaties Event held in New York. The signing ceremony was a significant landmark both for consolidating peace and ensuring better future protection for the Liberian people emerging out of 15 years of civil war. These decisions were also led through the transitional legislative process to complete the rest of the formalities. The challenge ahead, however, is to bring national legislation and policy in line with the norms and standards of international human rights treaties. Two type of efforts are being made in Liberia in this regard. Efforts are underway to reconstitute the Independent National Commission on Human Rights (INCHR) according to the INCHR Act 2005 passed by the legislative assembly according to the standards set by Paris Principles. The Commission was created under the Comprehensive Peace Agreement to "monitor compliance with the basic rights guaranteed in the present Peace Agreement as well as promote human rights education throughout the various sectors of Liberian society, including schools, the media, the police and the military". The Commission has important powers in the matter of internalization of international human rights standards in the country. Similarly, the Ministry of Justice has started a process leading to drafting the national human rights action plan of Liberia. This project has slow progress due to the ongoing delays in the establishment of the INCHR. However, in March 2007, the Solicitor-General (operating under the Minister of Justice) instructed all Ministries to appoint human rights focal points for NHRAP process. The civil society of Liberia, which has a great role in getting both these institutions functional, is yet to beef up the process. The focal points have met recently and are interaction with the Ministry to help them create a NHRAP National Steering Committee to start drafting the action plan. This plan is going to be a major instrument in implementing international standards through specific programmes and strategies.
Sudarshan, UNDP Asia Pacific Regional Centre, Bangkok wrote:
Matt Pollard has done us all signal service in bringing out some of the difficulties actually experienced in getting UNDP-supported programmes, especially those related to human rights and justice, to be more mindful of the set of international norms and standards that should be the guiding framework. These norms and standards can also be binding at the national level, consequent to ratification. So there is every reason to ensure that UN System supported initiatives, for a start, are in conformity with UN established norms, in both design and implementation.
The point about consultants getting away with assumed compliance with templated terms of reference, without substantive scrutiny of their recommendations, bears reiteration.
I believe that UNDP could make a difference to this 'business as usual' situation by making it a requirement that all in-country projects, which have a bearing on human rights, or are designed to mainstream the Human Rights Based Approach to Development, are submitted for review on substance (not financing) to the Regional centres, prior to their approval by Country Offices.
Such review by policy advisors in the Regional centres/Surfs is currently in vogue for projects that seek grants from Action 2,UN Democracy Fund, and the UNDP Democratic Governance Thematic Trust Fund. The same procedure could be extended to projects supported by in-country sources, without that in any way limiting the approval authority presently devolved to UNDP Country Directors and Resident Representatives. The review would enable specialised staff to examine the recommendations of consultants, and advise the Country Office on amendments that may be needed.
Natasha Mistry, UNDP Albania wrote:
In the case of Albania’s protection and recognition of minority rights, the country has ratified the six of the main United Nations human rights conventions. Albania has also enforced a series of regional conventions on human rights to satisfy EU accession requirements. Some of these treaties include the Copenhagen Criteria calling for accession states to meet political criteria that respects the rights of minorities. The Race Directive is considered a powerful tool against racism requiring countries to align its domestic policies and legislation to that of the EU.
Albanian national legislation in general prohibits discrimination, though there is no specific anti-discrimination law. The country’s legislation recognizes three national minorities: Greeks, Macedonians and Montenegrins and two linguistic minorities of Roma and Vlachs. The Constitution recognizes that “persons who belong to national minorities exercise in full equality before the law the human rights and freedoms. They have the right to freely express, without prohibition or compulsion, their ethnic, cultural, religious and linguistic belonging. They have the right to preserve and develop it, to study and to be taught in their mother tongue, as well as unite in organizations and societies for the protection of their interests and identity.”
The government over recent years has taken several steps to ensuring that minority rights are recognized and protected. Several government bodies have been created for the protection and promotion of minority groups including the Inter-Ministerial Committee on Minorities at the Council of Ministers (under the direct supervision of the Prime Minister), the Committee of Minorities at the Ministry of Foreign Affairs, and the Roma Monitoring Committee at the Ministry of Labour, Equal Opportunities and Social Affairs. The 2003 National Strategy for Improving the Living Conditions of the Roma has been an attempt to bring all relevant stakeholders together to document the main areas of focus in improving the social and economic situation of the Roma and ensuring their integration. Unfortunately no advancement has been made in regards to its implementation due to the scarcity of national resources. Though Albania is not a signatory to the Decade of Roma Inclusion (2005-2015), it doesn’t preclude the government’s participation in addressing Roma related issues.
Though there exists a set of human rights legislation, and several government structures have been mandated to deal with minority rights, the country still has inadequately executed regulations, particularly for the vulnerable minorities of Roma and Balkan-Egyptians. Part of this inactivity is based on the need of changing mindsets and stopping negative perceptions about Roma. Tolerance is simply not enough to ensure the integration of a socially excluded group of people, and more active programmes need to be developed by government in cooperation with Roma and civil society.
Recommendations in the 2005 third report of the European Commission Against Racism and Intolerance (ECRI) - a group established by the Council of Europe to combat racism and protect human rights - called for legislative review and strengthening and consequential awareness with lawmakers, the judiciary, police, and media, among other groups.
UNDP Albania is working closely with government structures and civil society to address the legislative and capacity gaps in minority rights protection. UNDP has developed a training programme and accompanying manual on "Respecting Human Rights and Promoting Interculturalism in Albania " to support capacity building of central and local government officials and media on European and UN international norms, practices and mechanisms of protecting human rights of minorities. The training highlights positive examples of policy reform and other government initiatives from neighbouring countries.
A core group of 20 national trainers, including Roma, was established. By placing ownership of the manual with government training agencies and experts in the field, including Roma, the training has been sustained and expanded. Some expert trainers (for example, from World Vision and the Civil Society Development Center) are using the manual to conduct trainings within their organizations. UNDP is cooperating with the national Training Institute of Public Administration (a government training agency) to deliver regular minority-training programme to newly recruited civil servants as part of their introductory career orientation training.
Regular monitoring and report mechanisms on international treaties and national strategies have been slow and irregular. The ‘UN Joint Initiative on Monitoring the National Roma Strategy’ project will support staff working within the Labour Ministry’s Roma Monitoring Committee to revise the National Roma Strategy’s indicators and prepare a methodology for conducting Roma-based surveys that will collect data and measure indicators. Information collected from various ministries and other institutions will culminate in a progress report on strategy implementation and its links with international minority related treaties. UNDP is partnering with UNICEF, the UN Population Fund (UNFPA), the International Organization of Migration (IOM), and the UN Resident Coordinator’s Office to establish a monitoring method that will enable the government to carry out regular monitoring and reporting activities.
Guest Moderat or Question, Part 1:
Dear Colleagues and Friends,
We are pleased to invite you to take part in a six week-long moderated e-Discussion: ‘How to Strengthen the Engagement with the International Human Rights Machinery?’ The e-Discussion responds to the views of HURITALK network members who selected the topic as the top priority theme for discussion in 2007.
Objectives of the e-discussion
The aim of the discussion is to bring together a variety of UN representatives, experts and practitioners to share experiences, ideas and strategies on: i) how UN agencies can better support governments in ratifying human rights treaty obligations and incorporate these provisions into domestic legislation and policies; ii) how human rights mechanisms can be used to support development processes; and iii) how states, civil society and UN representatives can better engage with the human rights mechanisms to further development objectives and human rights.
The information produced by the e-discussion will feed into guidance material and tools to support UN representatives working in this area and identify the gaps and challenges that need to be addressed.
For background information on the International Human Rights Machinery, members can click here .
E-Discussion Questions:
The e-Discussion is divided into three parts, each part lasting approximately two weeks. Part I will focus on Using International Human Rights Norms and Standards, and in Particular Human Rights Treaties in the National Context.
Please review and provide your thoughts and experience to one or more of the questions below:
*Part 1: Using International Human Rights Norms and Standards, and in Particular Human Rights Treaties, in the National Context *
v What experience have you gained in working towards encouraging countries to ratify human rights treaties? What are the challenges, opportunities and effective mechanisms to work with other partners to encourage countries to ratify regional and international treaties?
v What experiences have you gained in helping states bring national legislation and policy in line with the norms and standards of international and regional human rights treaties?
- What have been the lessons you have learned in helping countries bring national law into conformity with international and regional human rights obligations? What strategies can you recommend to move the process forward?
- What are your experiences of using human rights norms and standards to impact public policy , for example, decision making at the national and local level, proper budgetary allocations, training of government officials etc.?
v What is the role of institutional mechanisms (such as National Human Rights Institutions, Parliaments, National Committees that deal with specific human rights treaties etc.) in both implementing and monitoring human rights treaties?
We look forward to your contributions and discussion over the coming weeks.
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