By Avery Pasternak
2022 has been fraught with challenges and controversies within the global human right regime. Reports from leading human rights organizations indicate a general trend of deteriorating human rights conditions on all continents, with minimal accountability or impunity for States violating human rights. In June 2022, the United Nations General Assembly’s Human Rights Council held an unprecedented vote to remove Russia from the Human Rights Council in response to allegations of widespread human rights abuses in Ukraine.
“Prime Minister’s speech at United Nations General Assembly (UNGA)” by UK Prime Minister is licensed under CC BY-NC-ND 2.0.
The 136th session of the Human Rights Committee, held in the fall of 2022, navigated similarly unprecedented waters. The Human Rights Committee is a UN treaty body that monitors compliance with the International Covenant on Civil and Political Rights (ICCPR), conducting sessional reviews of State parties on a rotating basis. Treaty body review sessions are an opportunity for a State party’s human rights record to be questioned publicly by independent experts. These sessions shed light on ongoing human rights issues in countries under review and provide constructive dialogue that contributes to the progressive realization of the human rights contained in the treaties such as the ICCPR, International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention Against Torture, and the and UN Declaration of Human Rights (UNDHR), among others.
Two countries, Nicaragua and Russia, decided not to appear for their 2022 country review session. Delegates from Burundi likewise walked out during their review session in 2023, objecting the presence of members of civil society in attendance. In response, the Human Rights Committee conducted in absentia reviews, a first under the ICCPR review system. Nicaragua’s in absentia review followed the State’s refusal to cooperate with other UN human rights treaty bodies earlier in the year. In July 2022, Nicaragua refused to send a delegation for its review under the UN Convention Against Torture, calling the Committee Against Torture an “echo chamber of imperialist rhetoric”.
Russia’s review took place after their request to postpone the review scheduled for the 134th and then 135th sessions. Its refusal to send a delegation came in the wake of the overwhelming international condemnation of their invasion of Ukraine. Indicating a possible longer-term trend towards isolationism from the international community, and the worsening human rights situation in both Russia and illegally occupied Ukraine.
What is the significance of in absentia reviews?
Treaty body country reviews support efforts to strengthen human rights at the national level. They allow for State party’s progress to be monitored in a public forum and identify areas of priority for the coming years. More importantly, they provide a platform where human rights defenders and civil society organizations can submit reports on the state of human rights conditions on the ground. These reports inform the agenda for the constructive dialogue, where State representatives are required to provide answers on some of the most pressing human rights issues going on in their country. These reviews stimulate important national debates within civil society and provide a measure of public accountability when States backslide on their human rights commitments. Finally, treaty body reviews facilitate the progressive realization of rights contained in human rights treaties.
Progressive realization means that State parties have a continuous obligation to move towards the full realization of a given human right, while accounting for differences in technical capacity and resources among State parties to properly implement these rights.
Progressive realization sits at the heart of the international human rights regime. Human rights treaty bodies depend on widespread cooperation from State parties in order to achieve the objective of progressive realization.
All UN treaty bodies contain similar reporting measures to encourage and monitor global progress on human rights. Reporting to these various treaty bodies is an onerous process for some States and often requires the State to repeat itself where treaty protections overlap, which is not infrequent in the international human rights arena. Nonetheless, a State party’s presence at these constructive dialogues signals to the public that the State party’s commitment to progressive realization of universal human rights remains steadfast. In contrast, refusing to show up and cooperate with these reviews could signal regression on human rights.
“U.S. Periodic Report on the ICCPR” by US Mission Geneva is licensed under CC BY-ND 2.0.
Even more concerning is that a lack of cooperation, without material consequences, can signal to other states that refusing to cooperate is an acceptable, viable diplomatic strategy. If more states refuse to show up, and more in absentia reviews occur, there is a real risk that a voting bloc of countries who oppose the international human rights system may emerge. Recent UN General Assembly voting patterns on human rights resolutions underscore this risk. For example, the same countries that voted against or abstained from voting on the territorial integrity of Ukraine and the removal of Russia from the Human Rights Council also abstained from establishing the human right to a healthy environment – including Russia and Nicaragua themselves.
Above all, treaty body reviews provide a level of transparency on the global progressive realization of fundamental human rights. In the face of the recent abstentions, it is critical that the UN treaty bodies develop an effective and consistent procedure to conduct in absentia reviews to ensure that opportunities for dialogue and transparency continue even in the absence of cooperation from State party delegations. Many of the states who have refused to show up for their reviews are experiencing a rise in extrajudicial killings of journalists and human rights defenders, while simultaneously passing laws that heavily censor or criminalize speech. These realities pose profound obstacles for transparency, and consequently for action to address abuse. While transparency may not be a sufficient condition for progress on human rights issues, it is certainly a necessary one.
How should UN human rights treaty bodies proceed?
As mentioned, participation in the global human rights regime is voluntary — a consequence of the primacy of state sovereignty within the international realm. A State party will face few direct consequences if it stymies the progress of the international human rights regime by voting against human rights resolutions in the General Assembly or refuses to cooperate with treaty body review processes. What can be done to ensure the integrity of the treaty body reviews? The UN should double down on the efficacy of its current regime and ensure that in absentia reviews are as comprehensive as possible. Doing so effectively might require some changes in the treaty body system, but the UN could and must ensure that each treaty body is equipped to conduct in absentia reviews with consistency across all treaty bodies. In absentia reviews can still offer human rights organizations a valuable opportunity to publicize the state of human rights in their country and galvanize international and domestic solidarity, if done strongly and consistently. Otherwise, a failure to conduct any form of a review signals that States can defect from the international human rights regime without consequence.
Avery Pasternak is a second-year law student at the Peter A. Allard School of Law. She is a member of the IJHR Clinic’s Human Rights Committee and Climate Change Teams.
