Washington, D.C., find their way into the policies and practices of states. To that end, the Justice Initiative published in
2010 a report called “From Judgment to Justice,”20 which
sought to take measure of the degree to which states comply
with decisions issued by regional human rights courts and UN
treaty bodies and the various follow-up procedures that exist
to oversee their execution. The overriding conclusion was that,
while these systems vary in sophistication and scale, they all
confront, to varying degrees, an implementation deficit that
needs to be taken seriously.
Racial Discrimination] has adopted final decisions on the merits in
the same number, finding violations in eleven, three of which the
committee has determined were satisfactorily implemented.24
Comparatively, then, CAT is doing quite well, even if a sixty
percent compliance rate is itself a sobering statistic.
Structure and Implementation
by UN Treaty Bodies
At present, all treaty bodies that are empowered to receive
individual communications have also instituted follow-up
procedures. The Human Rights Committee was the first body to
do so when, in 1990, it created the position of Special Rapporteur
for Follow-Up on Views, with a two-year renewable mandate to
monitor state implementation of decisions. In 2002, the Committee
Against Torture also designated a rapporteur for follow-up to Article 22 decisions. According to the terms of reference for follow-up
rapporteurs, their mandate includes, in theory, the following activities: 1) monitoring compliance with Committee decisions, which
entails communicating with States Parties to inquire about what
measures they have taken or intend to take to execute the decision;
2) recommending appropriate action States Parties might take to
satisfy the terms of a decision; 3) meeting with representatives of
permanent missions of States Parties to encourage compliance; 4)
determining where technical assistance by the Office of the UN
High Commissioner for Human Rights would be appropriate; and
5) conducting (again, theoretically) follow-up visits in-country.25
Remedies for individuals, and general reforms to policy
or institutional practice, are not easily won, even in domestic
jurisdictions, and so pursuing such litigation in international
and regional fora might strike some as fanciful. Perhaps such
skepticism does not extend to the people gathered here today
but it must be said that these systems are relatively new, they
have fewer resources, and they rest on less-settled juridical
foundations than their domestic counterparts. These are all very
compelling reasons why implementation is challenging, to say
nothing of the nuisance such decisions pose to governments,
who might otherwise carry out human rights abuses unchecked
by the judgment of an independent body.
Successes of the Committee against Torture
In spite of these obstacles, the number of cases filed and
decisions delivered by these bodies, including the Committee
against Torture, continues to increase. According to the CAT’s
most recent report, since 1989 the Committee has registered 506
complaints against 31 States Parties.21 Of those, the Committee
has adopted final decisions on the merits in 203 complaints
and found violations in 73 of them. A total of 102 complaints
remain pending for consideration, a backlog that has continued to
grow. These numbers also track an increase in communications
procedures throughout the UN treaty body system. Presently,
four other committees can receive communications, and two
more—the Committee on the Rights of the Child and the Committee on Economic, Social, and Cultural Rights—have procedures that have recently, or will soon, come into effect. Let me
take a few minutes to provide some more figures and, for those
who are unfamiliar, sketch out how UN treaty bodies generally
seek to support the implementation of their decisions. I will then
turn to the challenges and opportunities that exist with respect to
implementation at the national level.
Generally speaking, states are expected to reply to a committee’s decision within six months, explaining how they intend
to implement a remedial scheme. However, many states do not
reply, and many that do often take the opportunity to contest the
factual basis of the committee’s decision or to challenge its interpretation of the respective convention. Unfortunately, as it is true
of the international human rights regime more generally, there
are few sanctions available to the committee when states fail to
comply. Naming and shaming is one option, of course, but the
only public information that is kept on these cases and the status
of their implementation is, to my knowledge, found in the annual
report that each treaty body presents to the General Assembly.
So, to our earlier conversation about the importance of publicity,
this tool is used far less effectively than it could be. I want to
add one caveat here: the figures I am offering reflect the assessments of the treaty bodies and follow-up rapporteurs themselves,
with which reasonable minds may very well disagree. Indeed, the
Justice Initiative recently experienced this in the context of an
ethnic profiling case it helped litigate before the Human Rights
Committee against Spain.26 There were manifest deficiencies in
the government’s response and our follow-up letters received
no substantive reply, so it was with some surprise that we later
learned, only by happening to read a newsletter of the OHCHR
Treaties Division, that the case had actually been closed and in
fact publicized as an example of successful implementation.
That offers some picture into the struggles that victims and their
representatives face, just at the level of communicating with the
UN secretariat in Geneva.
It is worth noting that CAT decisions enjoy the highest compliance rate: nearly sixty percent as compared to other treaty
bodies. It is also the only other treaty body to have adjudicated a
relatively large number of communications. The largest, by far,
is the Human Rights Committee, which, according to its most
recent figures, has adjudicated 914 cases to date;22 however, the
compliance rate with those decisions is significantly lower than
CAT’s. The Committee on the Elimination of Discrimination
Against Women (CEDAW) has registered about 30 communications to date,23 and CERD [Convention on the Elimination of
27
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