Human Rights Committee

Ninety-seventh session

Summary record of the 2673rd meeting*

Held at the Palais Wilson, Geneva, on Thursday, 22 October 2009, at 3 p.m.

Chairperson:Mr. Iwasawa

Contents

Organizational and other matters (continued)

Draft revised guidelines for State reports under the International Covenant on Civil and Political Rights

The meeting was called to order at 3.10 p.m.

Organizational and other matters (continued)

Draft revised guidelines for State reports under the International Covenant on Civil and Political Rights (CCPR/C/2009/1/CRP.1)

Ms. Keller, Rapporteur on the draft revised reporting guidelines, said that the Committee was revising its reporting guidelines to align them with the harmonized guidelines for all human rights treaty bodies and for State party core documents. The Inter-Committee Meeting had urged all treaty bodies to adopt reporting guidelines by the end of 2009.

She warmly thanked other Committee members, particularly Mr. O’Flaherty, and the Secretary of the Committee for their assistance in drafting the revised guidelines.

As a first step, she had endeavoured to ascertain what kind of general approach the Committee had decided to adopt at previous sessions. It had been difficult to draw general conclusions from the incomplete summary records. In particular, there were no official records of the discussion held at the ninety-second session in New York in March 2008. Moreover, the discussion covered in the records had been of a general nature and no concrete decisions had been taken. She had therefore decided to avoid including many elements that might be deemed “revolutionary” in the draft revised guidelines and to rely instead on the Committee’s standard practice, which had become well established in recent years. She had also taken into account the new reporting guidelines of other treaty bodies, such as the Committee against Torture, the Committee on the Elimination of Racial Discrimination and the Committee on the Elimination of Discrimination against Women.

The reporting guidelines were primarily addressed to States parties, the aim being to assist them in submitting comprehensive and well-structured reports. Another aim was to alleviate the burden of reporting to several different treaty bodies.

The draft revised guidelines adopted an article-by-article approach except for the cluster comprising articles 2 (1), 3 and 26. In most cases, the guidelines simply updated the Committee’s common practice. However, paragraphs 17 to 19 contained new material relating to lists of issues prior to reporting. The idea was to ask States parties whether they would agree to a simplified procedure whereby, from the fourth periodic report onwards, the Committee would draw up a list of issues based on the core document and its concluding observations for transmission to States parties prior to the submission of a report. The procedure would be optional and require the consent of both the State party and the Committee. The Committee could decide at any time to ask for a normal periodic report.

The Chairperson invited general comments on the draft revised reporting guidelines.

Mr. O ’ Flaherty commended the Rapporteur and the Secretary of the Committee on their work. He was also pleased to note that all the issues he had identified in his own contribution had been taken into account.

Mr. Pérez S ánche z-Cerr o said that the draft revised guidelines would greatly assist States parties and would streamline the reporting procedure. The Committee had held consultations on the matter with States parties at the previous session. He asked whether their suggestions had been taken into consideration.

The draft guidelines were so comprehensive that he felt there was no need for an additional list of issues. If a report failed to cover all the points mentioned in the guidelines, the secretariat could simply return it to the State party for completion. The Committee could also draw attention to missing information during the dialogue. That approach would save time and allow the Committee to deal with a greater number of reports at each session.

Ms. Chanet assured Mr. Pérez Sánchez-Cerro that the draft revised guidelines reflected several of the issues raised by States parties during the consultations at the previous session. The States parties themselves were generally very eager to receive lists of issues. She doubted whether many of them would opt instead to submit a full report. It would be helpful to hear from the Secretary of the Committee against Torture about that Committee’s experience with a reporting procedure based entirely on a list of issues. It was also important to take into account the views of the Special Rapporteur for Follow-up on Concluding Observations.

The Chairperson invited comments on paragraphs 17 to 19 of the draft revised guidelines.

Mr. Amor thanked the Rapporteur and the Secretary for their thorough work on the guidelines. He welcomed the proposals contained in paragraphs 17 to 19 in principle, but felt that their implications should be carefully considered before any final decision was taken.

Mr. Thelin, noting that under the proposed new procedure a State party’s replies to the list of issues would constitute its report, asked what sources would be consulted in drawing up the list of issues. The task force currently based its list on the State party’s report together with observations from NGOs and other independent parties. The approach adopted under the proposed new system would probably be less predictable and more discretionary. The heading “Lists of issues prior to reporting” that preceded paragraph 17 was somewhat confusing. He would prefer something along the lines of “A focused report based on answers to lists of issues”.

Mr. O ’ Flaherty said that his attitude to the proposed new system remained ambivalent but he was open to persuasion.

The list of issues approach was, in his view, better suited to narrowly framed instruments such as the Convention against Torture. The Human Rights Committee was required by its mandate, to undertake a broad and systematic review of compliance with the entire range of civil and political rights in States parties. He feared that a list of issues approach would inevitably overlook some issues of concern, so that the Committee would miss the opportunity to engage in a dialogue with States parties on important matters. Under the existing system, the Committee very frequently identified compelling concerns that had not been included in the list of issues. He also feared that an overburdened secretariat would be faced with a well-nigh impossible task when it came to drafting an all-embracing list of issues. The same applied to the task forces.

Another area of concern was the impact of such an approach on the Committee’s engagement with NGOs. The process of identifying key issues would occur in a relatively closed framework. It would be difficult to ensure that fresh information submitted by NGOs was taken into account by the Committee, particularly data compiled by specialist NGOs that did not have a dominant voice.

Furthermore, the proposed new procedure was essentially a problem-based approach, but the Committee’s duties also included the identification of good practices. He wondered whether all treaty bodies would adopt the new system or whether the Human Rights Committee and the Committee against Torture would set themselves apart from the others.

Turning to specific concerns, he saw no reference in paragraphs 17 to 19 to the possibility of expanding the list of issues in the light of new developments. It was unclear whether the Committee would continue to ask standard questions regarding, for instance, the implementation of concluding observations, the withdrawal of reservations to the Covenant, and human rights and terrorism. The content of the Committee’s formal knowledge-base for the questions raised was also unclear. It would presumably comprise previous reports, concluding observations, reports by other treaty bodies, the outcome of the universal periodic review and information available on the Internet, but the knowledge-base should, in his view, be articulated to ensure that a uniform approach was adopted under the radically new system. He assumed that task forces would continue to operate but, given their enhanced responsibility, he suggested that the questions they raised should be reviewed by the full Committee.

According to paragraph 18, the Committee or a State party could opt to submit a full report under certain circumstances. He enquired about the procedure whereby the Committee would take such a decision. He suggested that provision should be made for a review of the radical shift in working methods after a pilot period of, say, five years. Lastly, if the Committee adopted the proposed new procedure, it should also review its internal working methods.

The Chairperson invited the Secretary of the Committee against Torture to describe that Committee’s experience with the list of issues approach.

Mr. Nataf (Secretary of the Committee against Torture) said that the lists of issues drawn up by the Committee against Torture under the new system were based on the Committee’s concluding observations and those of other treaty bodies, information from United Nations human rights mandate holders and specialized agencies, the outcome of the universal periodic review where applicable, and information from civil society organizations, national human rights institutions and NGOs.

The Committee against Torture did not adopt lists of issues for initial reports or reports that had already been submitted. States parties could also opt out of the procedure and submit full reports. The lists consisted of two parts. The first part was based on previous concluding observations and the second part raised generic issues, including questions regarding legal, administrative and other measures taken to implement the provisions of the Convention and the Committee’s recommendations.

The list of issues was drafted by two rapporteurs and adopted at a plenary meeting. However, it was not binding on the Committee. During the dialogue with a State party, members were free to raise other issues. Although the approach followed by the Committee against Torture was indeed problem-based, the second part of a list of issues prior to reporting contained generic questions, under which States parties were free to raise any issue, including sharing good practices. Some standard issues were included in both types of lists of issues.

The Committee against Torture had agreed on a two-year pilot period. The first lists of issues prior to reporting had been prepared in respect of the reports of four States parties due in 2009, with a further nine lists prepared for States with reports due in 2010. Thereafter, the Committee had adopted the procedure as an optional part of its work: States parties could opt to submit reports instead. In November 2010, 21 lists would be adopted for States with reports due in 2011. States had a year to submit their replies to the list of issues, which would be examined within one year, to ensure that information was as up to date as possible and to obviate the need for further lists.

Mr. Lallah expressed the view that the information contained in paragraphs 17 to 19 of the draft guidelines should be placed after paragraph 106, i.e. at the end of the section on preparing periodic reports. In general terms, he expressed concern about the effects of adopting an approach based on lists of issues prior to reporting on the contribution of NGOs to identifying issues. If NGOs were only involved in the process after replies to the lists of issues had been received, the examination of those replies might be delayed. Furthermore, such an approach might enable States parties to avoid answering certain questions, which was not the case with the current requirement for full reports, or restrict the right of Committee members to raise issues, at least in practice. The two-year period over which the Committee against Torture had piloted the approach seemed too brief, with too few States parties involved. Nevertheless, although the Committee against Torture had a more specific field of interest than the Human Rights Committee, it could be useful to examine its experience further.

The Committee should give serious consideration to whether paragraphs 20 to 106 of the draft guidelines were intended to apply only to initial reports, given that other guidelines already existed on preparing periodic reports. The draft guidelines could also be useful to a State party compiling its first periodic report. In any event, the Committee should ensure that its work under the Covenant did not become less effective.

Mr. Nataf (Secretary of the Committee against Torture) said that the principal difference in the new procedure, which the Committee against Torture had been aware of in advance, was that NGOs were no longer directly involved in preparing lists of issues prior to reporting. When the procedure had been reviewed, therefore, the decision had been taken to announce which countries would be appearing before the Committee well in advance, so that NGOs could submit information that could then be used in preparing the lists. NGOs were thus able to engage with the Committee twice, as before: once in the preparation of lists of issues and once during examination of States parties.

The new procedure had been introduced with the aim of assisting States parties to prepare their reports by drawing their attention to issues of concern before reports were written. It also reduced the burden on States parties, who were only required to produce one document, not two, even if it created extra work for the Committee in preparing lists of issues prior to reporting for all States due to appear before it, whether they chose to use them or not. Since the lists would be made public in either case, however, they would serve the purpose of highlighting the Committee’s concerns. The fact that a State party might choose not to respond to them would also send a signal to the Committee, civil society and the international community.

Ms. Prouvez (Secretary of the Committee) said that a similar procedure was already followed in obtaining NGO input for ordinary lists of issues. It might be possible to extend the practice to the preparation of lists of issues prior to reporting.

Ms. Chanet said that, although adopting a new approach, such as that proposed by Ms. Keller, would necessitate alterations to the Committee’s working methods, the Committee should be open to change in the interests of increasing efficiency and effectiveness and enhancing the profile of its activities. Changes to other parts of the human rights machinery, for example the introduction of the universal periodic review, had a potential impact on the work of human rights treaty bodies. The current approach followed by the Committee became unwieldy when, for example, States submitting their sixth or seventh periodic report were still required to describe their constitutional framework, which would not, in most cases, have changed. The preparation of lists of issues prior to reporting would enable the Committee to focus on issues of particular concern, especially in view of the wide scope of the Covenant. It would, of course, be prudent to pilot any new approach, ensure that it was sufficiently flexible, and not make any precipitate changes, but it would benefit the work and image of the human rights treaty bodies if they could adopt a common position on such procedures.

Mr. O ’ Flaherty said that, while agreeing with many of Ms. Chanet’s points, he nevertheless continued to have certain doubts. He suggested that the Committee continue its consideration of the rest of the draft guidelines and discuss the matter of lists of issues prior to reporting separately at a later stage. He invited Ms. Keller to make specific proposals at a future session of the Committee, which would also allow time for consultation with NGOs, as the stakeholders most likely to have concerns about the proposed approach.

Mr. Rivas Posada recalled that the original reason for revising the existing guidelines was dissatisfaction among States parties and the Committee with the current reporting process. Reports submitted under article 40 of the Covenant, which must needs refer to all rights enshrined in the instrument, inevitably contained a great deal of information, much of it of secondary relevance to the Committee’s main concerns, and did not always provide sufficient detail on more pressing issues. The main objective was therefore to rectify that imbalance. Nevertheless, the Committee should consider to what extent it was desirable to conflate the processes of reporting, as an obligation under the Covenant, and preparing and replying to lists of issues, which was intended to facilitate and guide dialogue with States parties. He supported Mr. O’Flaherty’s suggestion to discuss the issue further at a future session.

Mr. Thelin said that the clarifications from the secretariat of the Committee against Torture and the comments by Ms. Chanet had allayed some of his concerns and reinforced his view that the Committee should go ahead with the suggestion made in the draft revised reporting guidelines.

He pointed out that many of the other concerns raised related to the more general issue of the Committee’s working methods, and recalled that the Committee had previously reached a tentative decision to form a working group to review those working methods. He therefore suggested two options for addressing the issue of the streamlined reporting procedure: either the Committee could adopt something similar to the draft proposal now before them; or the issue could be handed over to a working group. He emphasized that the Committee was always in control of its own rules and could always revise them again in the future.

It seemed to have been assumed that the streamlined method should only be used after a certain number of reports had been submitted by a given State party, rather than following any other criteria. He suggested that an alternative approach would be to divide States according to a number of criteria, so that States viewed by the Committee as being generally in compliance based on their previous reports could be treated in a more focused and streamlined way. The putative working group could also perhaps consider that possibility.

Mr. Amor said he had felt for some years that a State party’s periodic report should consist mainly of replies to questions from the Committee, which could also assist the coordination of work with other committees. The questions put by the Committee should not only follow on from previous reports, but should also raise its other concerns, including those based on information from NGOs, which should continue to be fully involved in the Committee’s initiatives. However, in the absence of initial information from the State party in question, he feared the possibility of a growing reluctance to cooperate with the Committee, which could be accused of being a transmission belt for information from elsewhere. In addition, if a report was based on questions from the Committee, it might then be expected that the subsequent debate would also be limited to those questions, causing other issues to be overlooked or marginalized. Owing to those concerns, he felt that measures to streamline the reporting process should be considered with due caution.

As an initial experiment, he suggested that the Committee could request, one year in advance of the scheduled reporting date, that a State party’s next report address, inter alia, a list of issues be provided. Such an approach would enable the Committee to focus on issues it viewed as fundamental, while also allowing the State to refer to other matters in its report. The Committee would also subsequently be able to raise any other matters relating to implementation of the Covenant. He believed that such changes could make the Committee’s work more effective, but stressed his view that States parties’ reports should not consist solely of responses to questions asked in advance.

Ms. Majodina said that, on first reading, she had believed that the new guidelines proposed were too revolutionary, and she shared many of the concerns raised by Mr. O’Flaherty. Some of those concerns had been allayed by the Secretary of the Committee against Torture. She supported Mr. Lallah’s proposal that discussion of the advance list of issues approach should be left until the end of the discussion of the draft revised guidelines so as to allow more time for consideration.

She supported new developments in methods of reporting in the human rights field, but believed that the Committee should move cautiously, perhaps by setting up a working group to systematically analyse what needed to be done. In her view, enhanced dialogue based on a better reporting system was the most important matter, and it was her impression that the Committee against Torture had not actually seen a significant difference in the reports it was receiving despite the changes it had made.

Mr. Nataf (Secretary of the Committee against Torture), clarifying his opening remarks and responding to Committee members’ concerns, said that follow-up was one of the most important aspects of the advance list of issues approach, ensuring that the process did not stall between reports. The Committee against Torture systematically used the advance list of issues to strengthen follow-up.

Like the Human Rights Committee, the Committee against Torture had not yet adopted harmonized reporting guidelines. It had also not decided whether to include mention of the advance list of issues in its reporting guidelines or in its rules of procedure.

In the Committee against Torture, States parties nearly always used the streamlined reporting procedure, except for their initial reports. In just a few cases they had chosen not to use that procedure, which remained optional. Under the new procedure the reports had been submitted more punctually and were more focused, with less irrelevant information. However, those reports had not yet been considered by the Committee, which had therefore not had an opportunity to express an opinion.

Sir Nigel Rodley said he was discouraged to see that there seemed to have been no new progress on the question of a streamlined reporting procedure, an idea which had been conceived by Ms. Chanet but had been pioneered and developed by another treaty body. In the meantime the Committee had hesitated to take further action. He acknowledged that there would be disadvantages to adopting the new procedure, but pointed out that they would surely be outweighed by the advantages, which should include addressing the embarrassing backlog of reports.

He warned against waiting to see how the Committee against Torture’s implementation of the new procedure worked out, stressing that the Human Rights Committee must be seen to be taking the problem of the backlog seriously. It was not worthwhile tinkering with the details of reporting guidelines, when those would in any case have to be modified again as part of the harmonization process.

He welcomed the suggestions contained in paragraphs 17 to 19 of the draft revised guidelines, but felt that they did not go far enough. To wait until a State party’s fourth report before applying the streamlined procedure would be a compromise solution that would fail to address the real problem of overdue reports. In his view, the question was whether the new procedure should be followed from a State party’s second report onwards or from its third.

He believed that the issue of the streamlined reporting procedure was not suited to a working group, but was one for the Committee itself. A working group could perhaps work out the details of such a procedure once the Committee had taken a decision in principle, but in his view the secretariat, with the benefit of the experience of the Committee against Torture, could do so equally well.

Regretting that there was as yet no agreement on the issue, he supported the suggestion that the Committee should return to it in plenary after its discussion of the rest of the document.

Mr. O’Flaherty said his understanding was that the Committee agreed that it would adopt the advance list of issues approach, but still needed to agree at what stage in the process and in what framework it should be used. He did not support the idea of handing the issue over to a working group, but would be happy to address it in whatever other way the Committee decided.

Ms. Keller, in response to the concerns expressed, stressed that her mandate had been to draft new reporting guidelines, not working methods. She felt that many of the concerns raised were relevant to the latter, but did not need to be included in the reporting guidelines. Whatever method the Committee chose to adopt would not be set in stone but could be adapted over time, based on responses from States parties and NGOs.

She believed that the main result achieved by the new reporting procedures used by the Committee against Torture had been in the reduction of the time and energy that States parties were compelled to put into producing their reports. She would be happy for amendments to be made to her draft guidelines, such as describing the new procedure as focused or streamlined, or implementing it from the second or third report rather than the fourth, and would also be happy for further discussion on paragraphs 17 to 19 to be deferred. Her main concern was that the Committee reach an agreement in principle on the matter; without that, its future work could be put at risk.

Mr. Amor stressed the importance of Ms. Keller’s conclusions and urged the Committee to take a decision in principle on whether it wished to adopt her amended proposals. Should it do so, it would then be able to fine-tune them at a later date.

Mr. O’Flaherty said that, while there were differences over details, he felt there was a broad majority in favour of adopting the advance list of issues approach.

The Chairperson suggested that, given the requests of a number of members for more time to consider the question of the advance list of issues approach, further discussion of paragraphs 17 to 19 of the draft revised guidelines should be deferred.

He invited the Committee to turn to the beginning of the draft revised guidelines and make such comments as they wished.

Mr. O’Flaherty, said that, while not objecting to paragraph 3, he believed that it was the first time the Committee would refer to itself using the new acronym, CCPR that had been assigned to it to avoid confusion with the Human Rights Council.

Mr. Amor proposed that in paragraph 7 the phrase “additional information in this regard specific to the implementation of the Covenant” should be replaced by “information relating specifically to the implementation of the Covenant”.

Paragraph 7, as amended, was adopted.

Mr. O’Flaherty, referring to paragraph 9, said that mention of a page limit of 60 pages for the initial report and 40 pages for subsequent reports should be removed. While those limits had doubtless been proposed by the Conference Services Division, most States parties currently submitted significantly longer reports; the Committee was unlikely to receive all the information it requested if it insisted on such brevity.

The Chairperson recalled that the page limits had been introduced in the harmonized guidelines on reporting (HRI/MC/2005/3, para. 19).

Mr. O’Flaherty proposed that the reference to page limits should accordingly be deleted, since there was no need to repeat what was already stated in the harmonized guidelines.

Mr. Lallah supported that proposal, particularly in view of all the information the Committee was requesting in its guidelines.

Ms. Keller said that it was worth reiterating the page limits in the Committee’s reporting guidelines, since the most frequently asked question on reporting was how long reports should be. It was clear that the page limits were merely guidelines and did not mean that the Committee would not read longer reports.

Mr. O’Flaherty said that if the Committee included the page limits in its reporting guidelines, there was a risk that States parties would interpret them as absolute limits and would unduly abbreviate their reports.

Mr. Lallah said that, since the paragraph already included a reference to the relevant paragraphs of the harmonized guidelines, there was no need to include the page limits.

Mr. Rivas Posada said that, while he agreed in principle with imposing a limit on the length of reports, it would be impossible to include in 40 or 60 pages all the information the Committee was requesting, should it agree to adopt paragraphs 29 to 106 of the draft revised guidelines.

Mr. Pérez Sánchez-Cerro said that, since the translation of documents was a recurrent problem for the Committee, it was useful to include the page limits in the paragraph as a guideline for States parties. States that submitted longer reports would not be penalized, but they and the Committee should be aware that shorter reports would ease the problem of translation.

Mr. Amor suggested deleting the entire paragraph.

Mr. Salvioli proposed deleting the second sentence only.

Paragraph 9, as amended, was adopted.

Mr. Amor suggested redrafting paragraph 10 to read: “It is important that the body of the report contain relevant information on the legal provisions guaranteeing the rights recognized by the Covenant in a clear and comprehensible manner. However, it would be helpful if States provided for Committee members copies of their legislation and measures in one of the Committee’s working languages.” Paragraphs 11 and 12 would not then be necessary.

The Chairperson suggested that Ms. Keller and the secretariat work on the suggestion in order to further improve paragraphs 10 and 11.

It was so decided.

Mr. O’Flaherty asked whether the section on additional information (paras. 11 and 12) should not include guidelines on the current list of issues procedure.

Ms. Prouvez (Secretary of the Committee) said that that point had not been included as the guidelines were intended to provide advice on drafting reports, not any later stage in the process.

The Chairperson questioned whether 10 weeks was sufficient for translations to be ready for meetings with States parties.

Ms. Prouvez (Secretary of the Committee) said that the Conference Services Division had specified that deadline.

Sir Nigel Rodley said that the Committee should not encourage the Conference Services Division to provide less good service than that they currently provided by extending the established deadlines.

Mr. Amor suggested removing the reference to the 10 weeks, since the Committee should be in a position to request translations of important documents within a shorter time frame.

Ms. Keller said that the 10-week period was useful to protect both the Committee and the translation service if States did not submit documents on time.

Mr. Rivas Posada, supported by Mr. Salvioli, proposed maintaining paragraph 12, except for the first phrase in parentheses, which should be deleted.

Mr. Pérez Sánchez-Cerro suggested that “in order for them to be translated on time” should be included in place of the phrase in parentheses. Some explanation for the 10-week time frame was necessary.

Paragraph 12, as amended, was adopted.

Mr. Rivas Posada proposed changing the heading before paragraph 13 to “Preparation of reports at the national level”.

Paragraph 13, as amended, was adopted.

Mr. O’Flaherty proposed changing the heading before paragraph 14 to “Periodic reporting obligations”.

Paragraph 14, as amended, was adopted.

Mr. O’Flaherty said that while paragraph 15 faithfully reflected the existing working method, he would suggest amending that working method. In the first sentence, he proposed deleting the words “in a private session” in order not to preclude a public session should the Committee decide in future to hold such sessions in public.

Mr. Salvioli agreed with that proposal, particularly as the Committee’s work always had greater impact when it took place in public session. In the second sentence, he proposed replacing the words “well in advance” with “sufficiently in advance”.

Sir Nigel Rodley asked why dealing with non-reporting was relevant to reporting guidelines.

Mr. O’Flaherty said that, if paragraph 15 was deleted, the following sentence should be added to the end of paragraph 14: “States that do not comply with the periodic reporting obligation will become subject to the Committee’s procedure for States that do not submit reports.”

Mr. Rivas Posada supported deletion of paragraph 15.

Sir Nigel Rodley said that, since States parties would not consult the reporting guidelines unless they intended to submit a report, it seemed illogical to make any reference to the Committee’s procedure for non-reporting States. He proposed deleting all reference to that issue, including paragraph 15.

The Chairperson said he took it that the Committee wished to delete paragraph 15.

It was so decided.

The meeting rose at 6 p.m.