Undermining Authority from Within

By Nina Reiners
Postdoctoral fellow
University of Potsdam

The 30th October 2018 marked an important date for human rights law: after more than three years, the Human Rights Committee finally adopted General Comment No. 36. It presents a comprehensive interpretation of the substantive provisions of Article 6 of the International Covenant on Civil and Political Rights on the right to life. The Committee, a treaty monitoring body composed of 18 independent experts, identifies herein the obligations of the 172 state parties to defend the right to life against environmental challenges, in times of war and also to take measures against threats on the right to life from extreme poverty and homelessness.

The consensus-building process leading to this outcome took a long time, as committee member and rapporteur for this General Comment, Yuval Shany, noted in the public meeting after the formal adoption of the document by the Human Rights Committee. Defining the right to life as a supreme right (i.e. a right which is a condition for enjoying all other rights), the committee had to seek consensus on many issues and how they relate to other human rights and international law. The meeting following the adoption was a celebration of the achievement of the Committee and words of praise and ‘thank you’ were exchanged, following years of debates among the treaty body members and with state parties, civil society and other stakeholders in numerous formal events and uncountable informal occasions. For me, as an observer of the session, it was a very solemn atmosphere at Palais Wilson that morning. The Committee also paid tribute to the role of the late Sir Nigel Rodley in the drafting process of the General Comment.

The chair of the meeting was Mr. Fathalla, an Egyptian diplomat. A chair of a treaty body meeting, as in most other meetings we know, is responsible for procedural matters such as keeping time and making sure that order is maintained among the statements of the participants. Using the role of a chair for personal statements is less usual, especially so in a diplomatic setting like at the United Nations. Even more so when this personal statement is not used for cordialities but for substantive critique on a document which had just been adopted consensually and was the culmination of a joint process lasting over three years and throughout which Mr. Fathalla was involved.

“human rights monitoring by treaty bodies is regarded as less politicized and it is essential for their work that it remains as such”

Unfortunately, Mr. Fathalla used his central position in the meeting to make public his personal opinion on the obligation of state parties on the right to life and abortion in paragraph 8 of the General Comment (see the full meeting video here with Mr. Fathalla’s personal statement starting at 46:25). In brief, his position questioned the legality of the provisions in the paragraph as a whole. He even went as far as to accuse his own treaty body of “permitting abortion with no criteria or restrictions or conditions, and leaving such a decision to the free will of a woman and a girl under the cover of respecting their free choice and privacy.” Although other committee members and observers in the room immediately showed their disagreement, he concluded his speech by stating that “giving free hand to terminate life of a fetus or an unborn baby with no legal reason is considered by itself a violation of the right to life.” Afterwards, other committee members made it very clear that this was neither the right time nor the right place for such a statement and said publicly (57:30) that Mr. Fathalla “has egregiously abused the spirit of this conversation and the position of chair.”

The observations made during the meeting provide an opportunity to reflect on the nature of membership in treaty bodies. The UN human rights treaty bodies are under a lot of pressure: their significant increase in workload is neither reflected in the budget nor the number of staff employed at the UN Office of the High Commissioner for Human Rights (OHCHR). This is reason enough for the current reform process to guarantee the future of the system. Like many other international and regional human rights institutions, the treaty bodies face critique from states and scholars alike as to their independence. The requirements for membership are very broadly defined as independent experts of recognized competence in human rights, serving in their personal capacity. How independent does the member have to be? How much and which expertise is required? How progressive do they have to be on human rights and what happens if they aren’t?

The point I want to highlight is less about Mr. Fathalla having a different opinion than me or many others working on human rights. On the contrary, nominations for membership in treaty bodies should reflect different legal systems. Diversity in treaty body membership provides for a pluralistic decision-making process which then safeguards that the decision reflects the state of human rights in the world. I do think, however, that this does not only apply to the gender, nationality, and political and legal background of a treaty body member. It also applies to their professions and it is here where the credibility of an independent expert body is most vulnerable. It is a strength of the treaty bodies that they work in different fields and with diverse educational backgrounds. In contrast to the intergovernmental Human Rights Council, human rights monitoring by treaty bodies is regarded as less politicized and it is essential for their work that it remains as such.

The scope of human rights obligations is to a great extent determined by the bodies monitoring the treaties. They can raise critical issues during constructive dialogues with the delegates and give recommendations for domestic policies and legislation. What is more, they contribute to the development of human rights law through their interpretations of their treaties. For this purpose, treaty body members have to be regarded as both independent and experts. This adds to the authority of their decisions. If, however, treaty body members themselves shed doubt on their decisions and the legality of their pronouncements, they risk the credibility of the institution. Furthermore, it plays into the hands of those states which do not see themselves bound to comply with treaty obligations and even question the authority of the treaty bodies for adopting progressive interpretations of the treaties.

One Reply to “Undermining Authority from Within”

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