European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations

Transcription

GERALD NEUMAN: I'm Gerald Neuman, and I'm Co-director of the Human Rights Program. And I am going to double dip on this panel, serving as moderator and as a speaker. After the last panel, I'm very nervous that this panel will be taken as an exercise of male hegemony. But the truth is that this panel was originally designed to have four members rather than three, but our third member, Felice Gaer had a small health incident and won't be able to join us this afternoon. So we will miss her invaluable contributions, but we will have to continue the panel without her. To my right, your left, is Philip Alston, who probably needs no introduction, but will get one anyway. Well, he will get a short introduction. He is the John Norton Pomeroy Professor of Law at NYU. He is currently the UN Special Rapporteur on extreme poverty and human rights. If I skip backwards a number of years, he is formerly the longtime chair of the UN Committee on Economic, Social, and Cultural Rights, the monitoring body for the covenant on economic, social, and cultural rights. And when I was first hearing about Philip Alston, it was explained to me by Louis Henkin that actually he is Mr. Human Rights. To my left is Michael Ashley Stein, who also needs no introduction to most of the people here, but also will get one. He is currently Visiting Professor here at Harvard Law School, Co-founder and Executive Director of the HLS project on disability, and professor at William & Mary Law School. He is a leading expert on the Convention on the Rights of Persons with Disabilities. And it is in that connection that he'll be speaking today. I guess I have to introduce myself, as moderator. I am, as previously mentioned, Co-director of the Program. I am the Jason Claire Armstrong Professor of International Foreign and Comparative Law here at Harvard Law School. And I am currently a member of the UN Human rights Committee, which leads me to make the following statement. Everything that I am going to say today is in my personal capacity and not on behalf of the Human Rights Committee. I had to introduce myself in order to say that. The panel is on the subject of Human Rights Treaty Bodies, The Next Stage. And I want to explain what that was meant to evoke. But before I do that, I will, again, say after the last panel, I want to emphasize why is there a panel on human rights treaty bodies? I will say there's a panel on human rights treaty bodies because they're an interesting subject, because I happen to know something about them, and because we were able to enlist the help of some really great leading experts on the UN treaty bodies in order to discuss this issue. That is why we are discussing the issue. I don't want to claim it is the direction in which all human rights developments of the next 10 or 30 years should be, all the hope should be placed, that they are the most important. No, they are simply one of many topics on which we could have had a discussion today. What do I mean by the next stage? Well, I really mean to allude to two things. One, which would have been more part of the subject on which Felice Gaer was going to be speaking, is that the treaty bodies have just emerged from a multi-year process of what took on the name the treaty body strengthening process. It was originally a treaty body reform process initiated within the office of the High Commissioner for Human Rights, labeled treaty body strengthening to make sure that the direction of reform should be for the strengthening of the system and not the weakening of the system. It was then taken over by the General Assembly, where there appeared to be real prospects that it might lead to a number of serious weakenings of the system. Most of that has been fought off through the combined efforts of civil society, states, and a little participation of the treaty bodies themselves. And in the spring, there was a General Assembly resolution adopted, which brings to a temporary close, a treaty body strengthening process, which may be renewed in a number of years after some reviews. Which produces an increase in resources for the treaty bodies, an increase in meeting time for the treaty bodies, and the number of expectations expressed by the General Assembly as to how those resources should be used. One of which is the hope that the treaty bodies will act more as a system. There are 10 treaty bodies now. 10 treaty bodies which each have responsibility for monitoring in different ways, compliance with major global human rights treaties. I should, perhaps, define treaty bodies for some members of the audience, but most of the members of the audience I can see didn't need a definition. And the question of how they relate to one another is a topic I wish Felice would have spoken had she been here. And I don't want to try to put words in her mouth or reconstruct what she would be saying on the subject. But I will have a little bit more to say about that when it comes to be my turn to speak. I will be speaking about remedial strategies of human rights treaty bodies. Another thing that has happened is that in recent years there have been new treaty bodies created. And there have also been new treaties adopted that change the powers of the existing treaty bodies. In particular, there are new possibilities for individual communications, individual complaints to be brought before the Committee on Economic, Social, and Cultural Rights, which may change the modes of operation of that committee and ways of thinking about economic, social, and cultural rights. And the fairly recent creation of the Committee on the Rights of Persons with Disabilities, and the bringing into operation of its communication procedure, which is already in effect and has already begun producing decisions. And that topic, generally speaking, is one that Professor Stein will be addressing. So that explains why it's called Treaty Bodies, The Next Stage. And the next thing I should do is give the word first to Professor Alston, and then to Professor Stein, and then I will speak before opening the floor for the audience. Thank you. Professor Alston. PHILIP ALSTON: The target is 10 minutes, or? GERALD NEUMAN: Using the full 15 would be perfectly fine at this point, given the reduction in size of the panel. PHILIP ALSTON: All right. Good. Thank you. I will, first of all, just to say what a pleasure it is to be back here, and particularly to have Monsieur Henri Steiner sitting in front of me. HENRY STEINER: Missieur. PHILIP ALSTON: Missieur, whala-- who always corrected me way back then and still hasn't changed. [LAUGHTER] I was just testing. But this truly a great moment 30 years later. Henry, having opted to take on this human rights program, having really thrown himself into it heart and soul. Not exactly being embraced in the warmest possible way by the, then, administration. But simply soldiering on and developing, producing a program that clearly now is at least the second best in the country. [LAUGHTER] I could negotiate over that. But which has really made, as George Edwards said before, has set a mold, as it were, for others which have all followed very much in its footsteps. So hats off to Henry for an enormous accomplishment. I notice you're bald now that the hat's off. Just a couple of very quick comments that I can't resist. I got here late and arrived here, Mr. Jay Goldstein, saying that the post 2015 development goals were looking great because they've got so much access to justice and rule of law in them. It really is a case of whether the glass is 1/8th full or 7/8ths empty. I think it's an unmitigated disaster that there's not a single reference to human rights. Well, I lied. There is one, which simply records that some years ago human rights were mentioned in some other document. Otherwise, human rights are absent in any formal sense. And so human rights proponents are left to pick up the crumbs and say, oh, there's a reference to education, women, too, there's a reference to. It's really good. But human rights, really are out of fashion, and being pushed out in a lot of those sort of contexts. I understand why people then have to struggle in relation to other terms. Very quickly as well, I foolishly agreed a couple of months ago to be a member of a Security Council Commission of Inquiry into events in Central African Republic. And just wanted to say that in that context, the conclusion-- or I shouldn't be saying anything because our report is not yet written, let alone submitted to the Security Council. But the key issue clearly is impunity in the Central African Republic. What you've are all of the major actors going ahead and committing as many crimes as they can or want to, in order to make sure that they're going to be part of the next political solution. So that if my boys kill certain numbers and I become prominent, you've got to make me minister for sports or whatever. And so this long cycle really desperately needs to be broken by trying to establish that there will be some criminal accountability for the people concerned. So while I share the concern that there may be in some contexts an over-emphasis on criminalization, I don't think we should neglect its importance in other areas. Onto treaty body reform, and Jerry asked me, in particular, to talk about the Committee on Economic, Social, and Cultural Rights. And who better to do that than someone who was a member just 16 years ago, and so knows the area very well. On the broader treaty body reform issue, I guess there are two things I'd say. First of all, if anyone should be pessimistic or skeptical about treaty body reform, it's me, because I wrote a series of reports starting in 1989 at the request of the Inspector General on long-term evolution of the treaty body system. Other reports in '93 and '97. Those reports were then discussed ad nauseum, is the right word by the Human Rights Commission, which did nothing with them. And the reality is that treaty bodies are themselves not very interested in reform. Most of the treaty body members want to protect their own prerogatives, deeply believe that one of the other committees wouldn't possibly deal with their issue effectively. And so what happened in the General Assembly earlier this year is actually a surprisingly positive outcome, particularly from a process that was picked up a certain stage by Russia, and its various allies, that championed the need for strengthening. So one had expected a much worse outcome. But, in fact, what you've done, they have a huge emphasis on inputs, and outputs, and measuring everything, and speeding processes up, and so on. And if one is a traditionalist, in relation to the Economic and Personal Rights Committee, for example, each state party report is now going to be considered in the space of two meetings, rather than three. So six hours rather than nine. And I remember fighting years ago when I was the chair saying no, no, no. We can't do this unless we have nine hours to look at what's going on. In a country, it's too short. The real answer I think is that we need to see the treaty bodies more as catalysts to action elsewhere, rather than as the key focus of a lot of actions in themselves. What I mean by that is that the actual outputs if the Economic, Social, and Cultural Rights Committee are valuable, I would say. But the real value is what happens at the country level, both in preparation for the session of the committee, and in response to it, and what they can do with what the committee produces. So the actual process in Geneva is sort of on the incidental, and the reality is that that can be done in terms of country consideration as well in six hours as it can in nine. Obviously, there's got to be some limit to that logic. But I think the reform, which also then emphasizes the role of new technologies trying to really-- it's crazy that countries, take Pacific Island countries that are a zillion miles away from Geneva, and have 20 government officials in total or whatever. The committees still sit there and say, well, why isn't the head of the ministry here, why isn't the social affairs minister here, and so on. Instead of simply using video link technology, where you could be having a much more engaged and productive sort of dialogue. And there are many other ways in which new technologies could be mobilized, and I think this report points in that direction. So going then to the committee itself, I want to repeat the main point that I just made, and that is that the committee should focus much more than it has on what I'd call national ownership of the whole process. In other words, it really is just a catalyst, the committee. It's not where the main action is or should be. But the committee generally does pay a lot of attention. That's sort of beyond their "it's not in our mandate." That's not written in the covenant, what can we do about that? Well, there are always ways, if you want to. Building up the national legal system, the committee generally says/notes with regret that country x doesn't have any provisions in its constitution, and that there's no legislative framework. Well, it should be able to find a way to follow up on that. Not in this really stiff, dare I say, constipated [INAUDIBLE], where you can't really engage. Members of the committee could. They could work with national NGOs. They could be working towards helping to build structures at the national level, both legislative, institutional, and also, of course, civil society. Civil society needs a lot of work in the area of economic, social, and cultural rights. And there should be a lot more integration between the efforts of the committee and the efforts that are made at the national level. The committee shouldn't see itself above all of this, and as an external actor, in my view. I suspect Jerry's probably having a quiet heart attack as I say this, but of course, the different committees are very different. They don't all function in the same way, and what can be said of one is not necessarily true of the other. To move, then, quickly to the more precise challenges for this committee. It performs a number of functions which are well known to many of you. First, is the so-called concluding observations on their examination of states reports. I used to hate this phase when I chaired the committee for eight years. It drove me mad, because the committee members had no discipline. Someone would have a particular interest in-- well, I better not give examples because there will be groups here who will be outraged. But they would pick on an issue which was, in the overall scheme of things, of really minor interest and relevance, and hammer away at it. And the concluding observations would then reflect that. And if you pick it up and you say, well, I know the problems in country x, and you suddenly see that-- I don't know-- certain groups not being able to get on the bus in certain areas or whatever seems to be the biggest problem. So there needs to be a lot more prioritization of issues, but also more strategically, instruction. So I'll give you just one example, which for me is quite simple. In a report that I am presenting next month, I guess, to the General Assembly in my capacity as Special Rapporteur, I focus on this initiative to establish social protection floors. Many of you will not have heard of this. It's a very major movement, but it's a way of trying to reinvigorate the notion of Social Security in such a way that it fits the situation of developing countries, even very poor ones. And it's an initiative that has its real origins in Latin America, in initiatives by Brazil, by Mexico, by Argentina, by a number of others, which have moved first to what they call conditional cash transfers. And then gradually towards unconditional cash transfers, setting a floor so everyone in the society is entitled to a certain package insured by the government. I don't think the Committee on Economic, Social, and Cultural Rights has ever looked at this issue. I don't think they've ever tried to look at what the synergies are, with what the ILO, the WHO, and various other agencies are doing. And how they could then systematically start to encourage states to move in such a direction. Now, one can pick out a great many other areas, but I think the concluding observations should be looked at in a more constructive, innovative way, to say, where would we like to be at the end of two years from now? What sort of issues should we have prioritized in our dealings with countries? There are, obviously, always going to be specificities in particular countries, but there's more to it than just responding to those specificities. Second, general comments, which we know a lot about. Essentially, there are two different models of general comments that have evolved. One is what I would call, but this is not a good term, juridically oriented. In other words, they really are legal interpretations of the provisions of the covenant, as filtered through experience, and trends, and developments, and so on. And they have a strong legal resonance and can be used in arguments effectively. And I would put almost all of the general comments of the Human Rights Committee into that category. Sadly, other committees, for the most part, have moved to a different model, which I would call, disparagingly, the policy declaration model. So they have often 30 pages of a general comment on a particular issue. Now, those 30 pages are not drawn from any legal analysis of the text or even of experience. It is a standard UN process. Anyone else out there want to add a paragraph? Yes. OK. In. Yes, anyone. Good. Right. I think we've got it all covered, and it comes down to the general comment. I think it's a huge wasted opportunity. I think the Committee on Economic, Social, and Cultural Rights really, really needs to go back to the model that was followed early on. The sad thing in making that comment is, of course, what I'm saying in effect is they should go back to doing it the way that I did it when I was there. But I believe there's a strong argument to that. To finish up then, two other issues, both of which are new. The Committee has just taken on, as Jerry says, the communications and public inquiry procedures. What it does with communications will be absolutely of central importance. One of the biggest areas, obviously, that's lacking in this field is developed jurisprudence. Careful analyses of what a particular general provision requires in a concrete situation. And the Committee absolutely has to work extremely hard to get that right. It's very difficult, because when a new process like that comes up, there are huge expectations. NGOs and others who have fought to establish this. If we want to really get something out of this, we want strong statement from you guys. But, of course, on the other side, the stronger the statement, unless it's incredibly carefully crafted and so on, the more likely you are to convince states that this was a mistake for them to not cooperate or not to think of signing on, and so on. So it really has to be done with great care to strike the right note. Finally, the inquiry procedure, I don't know, the Committee will respond to reliable information indicating grave or systemic violations by a state party. Well, one final comment-- I won't say anything specific about that. Final comment is that in a Committee like the Human Rights Committee, where you're dealing with what I would characterize as a relatively-- everything's relative-- narrow range of issues, it is possible to have within the committee a huge amount of expertise. And so someone like Jerry, whatever his background, is well able to pick up almost any issue in the covenant, research it, and write something which is very insightful and useful. That's not true when it comes to a covenant like the economic, social, and cultural rights covenant, which covers a vast area, great territory. You will almost never have on that committee the sort of expertise which is essential to do a first-rate professional job, no matter who's there. And that means that the role of the secretariat is absolutely crucial. And I like to analogize it to a Senate committee, for example. God forbid what Senate reports would look like if they were actually written by the senators. There's a set of staff who are highly professional, highly competent, who put those things together, and the senators then have to adjust them and sign off on them. There's got to be much greater attention paid, I think, in the future to building up strong professional secretariats for a committee like this, and that hasn't yet occurred. Thanks. GERALD NEUMAN: Thank you. Michael? MICHAEL ASHLEY STEIN: I'd like to first thank Professor Steiner. I was a human rights program fellow for a year and a half, and Henry, I learned a great deal, not only in interactions with my colleagues, but also from your very pointed, clear the air, come down to the basics of the question whenever presenting work. Such as presenting a very highly theoretical piece all about this possible disability convention because we were still working towards it. I had all the theory and everything there and Henry's question was, well, why do disabled people need a human rights treaty? And you sort of stop and you say, OK, we have to reflect on it. And his questions often go right to the heart of things and I learned a great deal. So thank you for putting up with me and for educating me. I thought my talk on this panel would focus on the CRPD, Convention on the Rights of Persons with Disabilities. And I thought the subtitle for it would be the new kid on the block, what have we learned and where are we supposed to go? The CRPD was the first human rights treaty of the 20th century-- 21st century. I'm a little behind. It's quite appropriate, if we look at the UN mechanisms and see what was there beforehand. The previous panel talked a lot about post 2015 MDGs. So just for one example, the current MDGs have eight goals, around 20 or 21 indicators, 60 targets, et cetera. The word disability appears once. What's really nice about the way the UN system has evolved over the last 10 years or so is that now there is at least dialogue about 2015, what about the case of disability and what we do. Education for all. Do we really mean education for all, and how do we ensure the one-third of primary school age children who have disabilities that are not in school are actually counted and included. So where are we going? In the third session in negotiating this treaty, then Secretary General Kofi Annan came and visited some of the civil society and some of the academics. And we had a small, quiet session with him and he said, you know we're undergoing UN treaty reform. It's been going for a while. It's going to continue for a while. You have a chance to be a laboratory and to think really creatively, maybe even wildly, about what to put into your treaty. And some of us took him seriously. And so in the negotiation crafting of the treaty text, when it related to the treaty body, there were a number of monitoring provisions, some of which preceded negotiations of the treaty and were out there, some of which developed externally in parallel sessions. There was an article that I did with my dear friend Janet Lord that describes all of these. But before the sixth ad hoc session, there was a meeting held here at Harvard with the National Human rights institutions. It was co-sponsored not only by HPOD, but also by the human rights program. So once again, Henry, thank you. And therein at the center of it was another fellow, a former HRP fellow, Gerard Quinn, who is marvelous and delightful, and I hope if you don't know him you get to meet him at some point. And there we put together a proposal that was submitted to the negotiations about what ought to be included in the monitoring provisions. And in doing so, we thought innovatively, creatively, wildly, if you like, and borrowed from all different sorts of treaty regimes, including environment, firearms, tobacco, nuclear weapons, et cetera, and tried to come up with some very innovative things. Some of the ones that made it in in the end included the use of collective complaints. Another one was the ability to elicit the expertise and the input of civil society, and in particular, what we call disabled persons organizations, BPOs. The third was the use of UN specialized agencies and entities. So the committee could, if it wanted to, ask UNICEF or its opinion about inclusive education in Nigeria. Or it could reach out to WHO and ask for some information and feedback or maybe even investigation of mental health in Nicaragua. And also, there were increased procedures to manage reporting, which in plain language meant the committee could nudge, nag, states at a more common level than some of the other treaty bodies could do. There were many, many models and innovations that were not enacted, and, again, that [INAUDIBLE] piece has it. So where are we? What's been done? And what are some of my reflections going forward? And here, a caveat, I speak not only has as an academic and an advocate, but as someone who has a bunch of friends on the CRPD committee, and hopes that going forward in time they'll remain my friends. So the committee has had several elections, now four elections. We've gone from 12 members to 18, and the composition has shifted because of the terms of the treaty. Initially, the committee was OK in my opinion. And in my opinion, about one-third of them were not so bad as the sort of horror story of spouses of whatever gender wishing to shop and have lunch. But about a third of them I thought were more interested in what their position was, whether they were chair or vice chair, and other assorted goodies. And some were actually very actively interested in my opinion in obstructing movements going forward. And there was a small coalition from various states-- we won't mention them-- who would vote in a block, basically, to stop a lot of other things. And the first two sessions were strictly about who was elected, where, and who did what, and what they were going to do. Unfortunately, during that period there was also the time to adopt procedures, and a few of us were called upon to draft and to make some suggestions as to what procedures they ought to have. We submitted some. They were more or less rejected, and the standard UN treaty body [INAUDIBLE] procedures were adopted. Which became interesting later on when a series of complaints, consolidated complaints brought by that gentleman over there, [INAUDIBLE], on behalf of individuals with intellectual disabilities from Hungary who still were not able to vote, even post [? Kish ?] case, which was brought by that gentleman over here. And we wrote the amicus brief, as we had done in [? Kish ?] as well. And it went in, and I spoke to one of the committee members quietly, and he said, oh, this is great because the way we wrote the amicus was here's how you solve not only these issues, but also the similar issues that you're going to see over and over again. But I also got a call from a different committee member who said, we don't have a procedure for non-party interventions. We have no idea what to do. And so there was a lot of back and forth. They amended the procedure and now you can do that. In the new iteration of the committee, we wound up eventually with an excellent committee chaired by Ron McCallum of Australia. Of course, Australians always make the best treaty body committee members. Also, just a wonderful diplomat and lovely human being. And I would say that now the committee is from its second or third iteration forward is rather strong. But I will give you some criticisms and questions about it in a minute. One of its early activities was actually interfacing with the UN mechanisms to ask for more time. And interestingly, they also asked for various accommodations based on disability. The time was not based on disability. The accommodations were in order to get their work done. In the early days, the committee also wanted to be in New York rather than Geneva, because Geneva was an awful place to be. Apparently, the lunch possibility is not quite as good. But they also requested additional time, and they achieved it, and good on them. That was the McCallum committee. And so, in addition to the standard two weeks, which they started out with. There's now a three week session. And my understanding, from speaking with some of them, is that come the end of the summer in order to get some traction on what is already a backlog, they may go five weeks back to back, and good on them. So we'll see if that happens. The personalities of the committee, again, and to speak to them, generally speaking, one thing the committee has done from an early start has been very serious about being open to civil society and GPO consultation. And here I'll get into trouble, but here we go. They have actively elicited civil society input, which I think is terrific. But perhaps they've done it to the point of being influenced maybe to a greater extent than one would, in an objective sense, think that independent adjudicators ought to be. So the push towards coming out with a general comment on legal capacity, which is surely, sure an important issue, but around which if one reads the general comment, we see that we don't have very much jurisprudence. The comment itself doesn't give us a lot of guidance on what to do. It takes almost exactly the position of one arm of the international disability community, which one may view as progressive or fundamentalist, depending on one's perspective. Does not allow for things like asking whether economic costs are ever a limit on rights. Does not raise the open possibility of is there anyone out there who can never, even with facilitation, make decisions on their own-- people in comas, people with 15 IQs, et cetera. And so one can ask whether they've gone a bit far on being open to civil society. But their notion of being open, having open days for discussion is completely laudable and very helpful. The committee made an effort in its medium days, again, under Ron to go and reach out to other committees. This was both formal and informal interactions with other committees, and Professor Newman can comment or not, as he pleases, on the interaction with a certain committee. Sometimes I think those interactions lead to some harmony and understandings of various issues. Sometimes I think they lead to understandings of where the disagreements are on certain issues, which in a way is a step forward. Sometimes they're more positive than others. There has been, in my opinion anyway, a good impact on the intersectionality and recognition of disability within other committees. And Rogito is shaking her head, and you wrote on that back in 2007 and did very well. And when you were writing on it back in 2007, Yanghee Lee, who was then chair of the CRC, said, we actually have Article 23 within the CRC, and we haven't done a lot about it, and I'm going to make sure we pay more attention to it. And she did, and her committee did. But if we were to look now at 2014, back, we would see, for example, the CERD committee is actually, in its recommendations, frequently stating to states parties, oh, and by the way-- and the ESC committee as well-- why isn't there an independent mechanism that's monitoring disability, which is, I think, enormously helpful. So I think there's been a very positive effect on that. Speaking of ESC, it's not clear yet where the committee is going to go on economic, social, cultural rights. There is a lack of both jurisprudence, theory, and practical thought on it, which is why a friend of mine very arrogantly decided to do an edited collection, which Professor Alston would like to blurb on, on disability, social rights. But there's not enough there on the committees-- does not really tackle that. It's not one of their immediate goals. There is all sorts of areas which the committee could give guidance, where nobody has a lot of answers on, and areas where they could give guidance where there are lots of answers on. So in future going forward, a comment on reasonable accommodation is, I think, not that difficult to do, given both some of the prior general comments elsewhere, as well as a lot of academic work on it. But a comment on where does civil political rights and economic, social rights meet in various areas, whether legal capacity, whether independent living versus exclusion, and so on, how do you draw the line between them. No one's quite figured that out. There was an early push by one the current members, and recently reelected, to do a comment on what participation actually means. And that was Stieg Larsson, and his idea was well, if civic participation is one of the great ideas and movements forward in this convention, maybe we ought to write a little bit about what that means, so that the GPOs and doing in the national level work, and Professor Alston is exactly right. Most of the heavy lifting has to be done at the national level. At least we can figure out what the parameters are for inclusion, but that was not of taste. So perhaps I can stop here and turn back to our chair. GERALD NEUMAN: Thank you very much. You invited me to say something about the interaction between two committees, and I think I actually will say something about one of the sets of interactions between the two committees, which has to do with the issue that you mentioned, regarding voting rights. The Human Rights Committee wrote a general comment in the mid 1990s on the subject of the right to political participation-- a right dear to Henry's heart. And it included in this discussion of what reasonable restrictions are permissible on the right to political participation. The, then, seemingly self-evident proposition that mental illness was a reasonable basis for denying someone's right to political participation. A decade went by, and what was once so self-evident seemed less self-evident. When the Committee on Rights of Persons with Disabilities came into existence, fairly early they contacted the Human Rights Committee suggesting that the Human Rights Committee should adopt a new general comment on political participation or amend its old general comment on political participation. I want to be careful here and not speaking for the Human Rights Committee. I simply wanted to describe the events. It is not generally the practice of the Human Rights Committee to amend past general comments, except in the course of adopting a new general comment. And not to adopt a new general comment simply to change one sentence. But the Human Rights Committee was careful to respond publicly that old general comments are old general comments, and they may indicate the position of the Human Rights Committee on a particular issue at a particular time, but the interpretation may develop. And that when the Human Rights Committee adopts additional interpretations in the course of issuing concluding observations on various issues, or deciding the communications on various issues, that may demonstrate a new position which is inconsistent with the old general comment. And it is the new position, which is the one that deserves attention, and not the old general comment. So the Human Rights Committee at the very time was in the process of adopting a series of concluding observations on a variety of states in which disability advocates had called our attention to various restrictions on the rights of people to vote on various grounds. And the Human Rights Committee, consistent with this understanding of rights to equality under Article 26 and political participation under Article 25, expressed a different interpretation than the one that it had expressed in general comment. And so, moved closer to the position of the Committee on Rights of Persons with Disabilities. Although I do want to say that the position that the Human Rights Committee expressed has not yet converged with the position of the Committee on the Rights of Persons with Disabilities. My own topic for today is the remedial practice of the treaty bodies. And in part, my reason for talking about this is because I've just published an article on the subject. What can I say. It's a safe academic topic that I have written about in an academic way. In ways that I can present it to a public audience, while remaining true to my statement that I am speaking in my individual capacity as an academic. It's also a subject which takes on new importance in the sense that the treaty body strengthening process has been asking committees to act more as a system, and, therefore, the notion of harmonization of the remedial approaches to the treaty bodies in their decision of communications is being encouraged. And we're also being lobbied by NGOs for changes in the remedial practice that the treaty bodies engage in. So it's an important topic. NGOs lobby for more extensive and more detailed remedies, often seeking the greatest benefit possible for their particular clients. Now, there's a wise chapter that Henry Steiner wrote for a book that Philip Alston edited, discussing how the Human Rights Committee should take into account the limits of its powers and resources in deciding how best to exercise its functions under the communication procedure. And I have to say I was very much influenced by the reading of that chapter long before I became a member of the Human Rights Committee. As it turns out, this chapter didn't say much about remedies, so I can't rely on the chapter for the answer to that question. Last month I published an article in the Harvard International Law Journal called "Bi-Level Remedies for Human Rights Violations." And I see a important consistency between the way Philip was speaking at the beginning of his remarks, and what I mean by bi-level remedies. International courts and tribunals differ from national authorities in their power, structure, resources and context. And they also differ from one another. Ordinarily, the goal of international human rights institutions is to induce action at the national level. In communications, it's for the remediation of past injuries and the prevention of future injuries. And international institutions employ a variety of methods, none of which are infallible, to accomplish that goal. Directly ordering a comprehensive set of remedies, as the Inter-American Court of Human Rights has often done, is not the only option. The article analyzes three principal strategies by which international tribunals adjudicating human rights disputes between an individual victim and a state can issue remedial rulings that are intended to produce concrete remedial results on the national level. These three principal strategies I call a direct remedy approach, a monitoring approach, and a supervise and negotiation approach. The article first isolates them heuristically as separate models in order to examine their relative strengths and weaknesses. And then turns to the reality of hybrid models, which combine aspects of those pure approaches. I want to emphasize that the analysis is not framed as an effort to find the remedial approach that is best for the interests of the complaining party in the case, regardless of the cost that it imposes on other people. Those other people might include individuals with adverse interests in the subject matter of dispute, and also potential complaining parties in unrelated cases. The first model, the direct remedy model, refers to a direct international remedy. It involves a tribunal that possesses and exercises the binding authority to specify fully, and in detail, at the international level the particular set of remedial actions that the government officials at the national level are obligated to carry out, as a result of the finding that the individual's right has been violated. I call the second model the monitoring model, meaning the monitoring of a national remedy. It involves a tribunal that leaves the specific choice of remedial actions to the appropriate officials at the national level. The tribunal articulates parameters to indicate the range of the national officials' remedial discretion. And the third model is the negotiation model, meaning facilitated negotiation of a national remedy. Here, the tribunal's remedial practice focuses on creating a framework in which the victim and the national officials, and possibly other stakeholders will negotiate a mutually satisfactory remedy at the national level. The Inter-American Court of Human Rights comes closest to the pure direct model of remedies, although it sometimes also exhibits elements of the negotiation model. The Inter-American Court exercises its own discretion in ordering specific measures that would benefit the victim, and general measures that could decrease the likelihood of future violations of the rights of others, without determining that these measures are the only available means of accomplishing those goals. In the monitoring model, after the tribunal has found a violation, it does not fully specify the remedy that the state must provide. Instead, the tribunal emphasizes that the treaty already obliges the state to provide an effective remedy for human rights violations. The tribunal has the authority to monitor the state's compliance with this consequential obligation, as well as with the state's other treaty obligations. Upon finding a violation, the tribunal may performance its monitoring function ex ante, by identifying, if possible, the minimum elements that must be present for the remedy to be effective. Or it may perform that function ex post, by waiting for the state to choose a remedy, and then reviewing whether that remedy would, indeed, be effective. The tribunal could also suggest to the state a particular effective remedy, but the state would remain entitled to substitute a different remedy as long as that alternative were also effective. A tribunal might choose to employ this model, rather than the direct remedy model. Or it might employ this model because it has no power to employ the direct remedy model. It could, for example, be argued that treaty bodies do not have the power to impose a direct remedy on a state in a legally binding way, unlike the regional human rights courts. It could be argued. In the negotiation model, the tribunal views its role in the remedial phase as the framework within which the victim and the state will negotiate a remedy, to be provided at the national level for the violation found at the merits phase. It might do this for several reasons. First, the parties may know best what their own interests are and what indirect consequences various remedial measures would cause at the national level. Second, remedies requiring active performance by the state may be more effectively implemented, if the officials responsible for implementing them are involved in their design. Third, negotiation may provide an opportunity for the participation of other interested individuals or groups who could not take part in the tribunal's procedure, and, thus, produce a better overall solution. Finally, a tribunal may conclude that whatever precise remedy it might have ordered would remain subject to negotiation and settlement between the parties anyway. Studies of international litigation between states have shown that a judicial decision often supplies a starting point, rather than the eventual end point for resolving a dispute. If the tribunal is authorized to impose a direct remedy when the negotiations fail, then that gives the state an important additional incentive to negotiate in good faith and to keep its agreement. But the negotiation model can also be employed by a tribunal that lacks the power to impose a direct remedy. The paper discusses for the three pure models the advantages and disadvantages of each model. First, on the assumption that the state complies with the remedy. It discusses the effects of the particular model for the victim and for similarly situated third parties. The direct effects of the model and the tribunal itself. And the effects on the state and on third parties with adverse interests. Second, it considered the effect of each model on the likelihood that the state will, in fact, comply. The effort to estimate all these different effects shows the complexity of the task of evaluating remedial structures for international tribunals. The costs and benefits of applying one of the models in a particular case will depend on the choices made by the tribunal in implementing the model, on the simplicity or novelty of the case, and on the behavior of the parties in response to the tribunal's choices. Still some characteristic tendencies of the models can be identified. The direct remedy model offers advantages for victims and similarly situated individuals, in terms of the strength of the remedy. The clarity of the remedy may increase the likelihood of compliance. And compliance with the systemic remedy is likely to relieve the tribunal from future similar cases. On the other hand, the direct remedy model tends to impose higher procedural costs on the tribunal and the parties. Errors by the tribunal in its choice of remedy can be highly disadvantageous for the state and third parties. And detailed mandatory remedies may provoke resistance by the state. The monitoring model may have the least procedural costs for the tribunal and the parties, and produces a less burdensome remedy that the state may be more likely to comply with. Its disadvantages include a weaker remedy for the victim, less clarity, which may impair compliance, and less likelihood of avoiding similar cases. The benefits of the negotiation model depend on the outcome of the negotiations. But it can provide greater opportunity for all interested persons to influence the remedy, and produce a remedy that is better for the parties and that the state is more likely to comply with. The negotiation model also tends to decrease procedural costs for the tribunal. The disadvantages include greater uncertainty and the possibility of a weaker remedy, which may not avoid similar cases in the future. The article then goes on to discuss hybrid models combining the strategies of the three pure models. It's possible for a single tribunal to avail itself of more than one of the models, either as alternatives for different cases, or in combination for different aspects of the same case, or as stages of the single remedial process. For example, if we treat the European Court of Human Rights and the enforcement bureaucracy in the Committee of Ministers of the Council of Europe as one tribunal-- that's a big if, but from a theoretical perspective a good working hypothesis-- then the remedial practice of the European Court of Human Rights includes elements of all three models, sometimes as options, and sometimes in the same case. Some cases evoke the direct remedy model because they involve isolated violations for which compensation is the sole remedy, or because the court's judgment is clear and specific. Other cases leave the state more choices, and the Committee of Ministers engages in unilateral monitoring, or overseas a negotiation. Hybrid remedial strategies that call upon two or more of the simple models may compensate for disadvantages of any single model, while also imposing additional complications or costs of their own. Hybrid models that expand the tribunals' remedial choices add flexibility for the tribunal, which may lead to benefits for the parties. Hybrids increase the potential for the tribunal to choose the remedial approach that is most appropriate for the particular case, although they certainly do not guarantee that the tribunal will make the best selection. I think I'll stop reporting my results there, and conclude a little more bluntly. Treaty bodies are not the Inter-American Court of Human Rights and should not pretend that they are. The Inter-American Court of Human Rights has powers that treaty bodies do not have. And treaty bodies have powers that the Inter-American Court of Human Rights does not have. The powers in situations of treaty bodies also vary from one treaty body to another. As the treaty bodies consider their future remedial strategies, they will need to take into account the range of their options and the particularities of their situation. Thank you for your patience. [APPLAUSE] I suppose I should ask the panelists whether they want to comment on anything that was said by the other panelists who spoke after them. And then I'll open it to the floor. Professor Alston? PHILIP ALSTON: I mean the only question I think that comes pretty obviously out of your analysis relates to what you don't say. What would be the optimum model, say, for the Human Rights Committee or for any other committee, in terms of degree of prescriptiveness of the remedies that should be followed based on your analysis? GERALD NEUMAN: Well, there are reasons why I don't say that. I think a listener would fairly conclude that I think even taking one treaty body, call it hypothetically the Human Rights Committee, I don't think there is an optimal strategy across the entire range of cases. I think that it depends considerably on what-- well, just at a minimum on what kind of case it is. Is it a repetitive case for which there would be a simple remedy that could be easily identified, whose consequences would be easily foreseeable? Is it a novel legal issue? Is it a situation which a remedy would necessarily be extremely complex? Those are some factors, but I don't think I can-- PHILIP ALSTON: I mean I totally accept that it's going to vary according to the circumstances. The question, though, is whether you think that any given UN treaty body should have open to it a fairly comprehensive panoply in certain cases. So if you look at some of the early CEDAW communications for final views, they are highly prescriptive and very wide-ranging. Should that range be opened in an extreme case, or is CEDAW pushing beyond the appropriate role of the treaty body? GERALD NEUMAN: You may notice that I'm trying to avoid describing in legal terms what are the powers of particular treaty bodies. The Human Rights Committee is a committee that I know best. I don't want to take a position today on what are the limits of the legitimate power of the body. And I certainly don't want to take a position on a treaty body-- PHILIP ALSTON: Foreign body. GERALD NEUMAN: --foreign body, to which I might offend them by expressing an opinion. If we were to assume that a particular treaty body lacks the power to adopt a binding remedy, that would not say that it should definitely not recommend a detailed remedy in an appropriate case, while making clear that it was a recommendation. In the monitoring model it's possible for a treaty body to say these are the elements that would absolutely have to be necessary for any remedy to be effective. If that were truly the conclusion that the treaty body were reaching, as a matter of its remedial discretion, this is what it would choose as the elements, if it lacks that remedial discretion. But this is its legal conclusion that for a remedy to be effective, you would have to do the following seven things. One can imagine situations in which that might genuinely be true. If so, that's a legal conclusion, that even under the monitoring body, a treaty body would be entitled to make. But it would be based on a legal conclusion that this is the minimum required for an effective remedy, and not the free exercise of remedial discretion. Since we're entitled to choose a remedy, why don't we ask the state to build a monument which will be 12 feet tall and located in the capital? I don't think there's any circumstances in which the erection of a monument of a particular shape and in a particular location could be viewed as one of the legally minimum elements for an effective remedy. PHILIP ALSTON: Right. I can put a quick question to Michel, who talked interestingly about the capture by certain groups of the process of drafting a general comment. How does one guard against that? MICHAEL ASHLEY STEIN: Well, in this case it was an open day, but the open day was two particular groups, both of which espoused the same view. PHILIP ALSTON: Which put themselves forward, or which were chosen by the committee to speak. MICHAEL ASHLEY STEIN: Put themselves forward, and then were chosen by the committee to speak. And there was-- I suppose a committee could protect itself against that by opening the door to other views, and/or eliciting other views. They do accept communications and other expert reports, et cetera, when holding these open days. But as in much of the case of treaty bodies, it's particular groups, both with an agenda and the resources to forward the agenda that often get the voice. PHILIP ALSTON: Are the draft made available for public comment? MICHAEL ASHLEY STEIN: In this committee, in the case of its first two drafts, they were put open for comments. And then the request was that written comments be submitted by a certain date. And correct me if I've gotten this wrong, but that's the deliberations of what the committee would do with those comments were not done in public. For myself, I decided not to post my criticisms, questions, et cetera of two comments. One on legal capacity and one on access publicly, because I thought they could be used as leverage by states in pushing back against what the committee was saying. I did not care about various advocates and others pushing back on me in my personal capacity. They do that already when I say things like some small percentage of people just cannot vote, or there's some small number of people who, even with reasonable accommodations, cannot perform all essential job functions, and so Google cars as the blind truck driver is just not going to cut it. But I did that quietly. In conversations with them, I've had very interesting ones where some members told me that they understood my concerns, but that they wanted to stake a rather progressive view. Because later on they could scale back on it, and I've not seen the UN ever do that before. And a few others were rather bold and boldly honest and saying that they felt that this was their opportunity to push the envelope. And that whether they agreed with it or not, although I think they did agree with it, it would force states and others to move off the wall and come to a position that was farther than they would ordinarily do on their own. Whether one views that as harmonious with the duty of an independent expert adjudicating or not is open to one's opinion. Whether one feels that they have an ethical duty either to or to not push beyond what they think is the absolute correct position, one can argue that. And now there's another comment coming forward. GERALD NEUMAN: Do you want to open to the floor now? To the floor. [INAUDIBLE] AUDIENCE: I want to ask you a [INAUDIBLE] question about that contrast that you drew between two kinds of general comments. The juridical versus the more sort of policy-oriented. So I've been reading Comment 14 on the right to health, which seems very much to fall into your second category. And it seems very problematic. It looks like a shopping list of things that you would want if you had unlimited resources to further the interest in human health. And the idea that you're dealing with a right seems to go out the window. There's no structure there that unifies this shopping list into something that looks like a right. The alternative you're suggesting is a juridical analysis, where you think of this as a legal enforceable claim of some sort. What about the thought that actually then furthers alternatives, and that is [INAUDIBLE], for want of a better word, some philosophical account of what a right is in this context. In this philosophical account, where a human right is right is a distinctive kind of concern, [INAUDIBLE] anything to do with health, but the right health would then feed into the juridical account. But it would also feed into human rights' concerns that aren't necessarily adequately or well expressed [INAUDIBLE]. So, for example, there might be this thought that in our ordinary lives you ought to give [INAUDIBLE] to human rights. But not all of these human rights [INAUDIBLE] life are readily translatable into anything legally enforceable or even just legal. PHILIP ALSTON: Look, I don't think philosophers have anything to add to this debate. What do you do [INAUDIBLE]? I mean it's very tempting, but, of course, you could see that getting out of control as well, because the starting point has to be what's the committee's expertise, and it sure ain't philosophical for the most part. And what's its added value? And, of course, notoriously, as you have written about so often, the human rights framework has abstained from spilling out the philosophical foundations on which it's based. So I think there are options there, but they wouldn't be very explicit. In other words, the Committee shouldn't be saying let us explore what the philosophical foundations might be of this, because that would be beyond its competence, and it wouldn't reach a conclusion, of course, if you take a room full of philosophers you won't get any conclusions on that. But there's certainly room for trying to explain more, because that's a second, potentially equally valid function. In other words, my focus on the legal interpretation is so that it can be used by lawyers so the governments can have a clear idea of what follows from it. But obviously, the general comment also has this broader expository function. What's this right about and why is it important? GERALD NEUMAN: Yes, please. AUDIENCE: I want to follow-up and get your thoughts on [INAUDIBLE] comments that Philip made, and I think a few others mentioned, about follow-up, importance at the national level and following up on considering observations and comments. And I guess in the last 10 years-- you mentioned the idea of maybe treaty body members kind of going out and individually, presumably, or collectively helping countries and people in countries to implement some of those recommendations. I'm just wondering, over the past 10 years, the office of my commissioner has developed such an extensive on the ground network of people of its own, that were really there before, what will they might have in implementing recommendations, whether there's been any dialogue about that. And also their own effort to mainstream and possess bigger sort of UN system where UNDT has a tremendous amount of resources and its own kind of rule of law apparatus that's way greater in scale. And whether that's another possibility that's been contemplated. And one other question on follow-up is what has been the impact, if any, in your experience of the UPR process? And do the committee members actually follow what happens with the recommendations that they go up into that governmental level? PHILIP ALSTON: Well, I'll leave you in the arms of Jerry, because it seems more pertinent to a current treaty body member. In terms of the broader issues, Jessica was, for a period, Assistant Secretary General for human rights in the UN, so knows the system inside out. But also has worked for a very long time at the grassroots level on a whole range of issues relating, particularly, to women's rights. I didn't suggest specifically that treaty body members should be going out into the field. Heaven for bid, one would say to a large extent. But I do think the committee as an entity can see its role as being to try to encourage, facilitate, and so on, more of a civil society outreach than is currently the position. I would have to say to you, and this is-- I don't to sound too disillusioned, but inter-agency cooperation and collaboration is something that drives me to despair. What I generally find in a range of different contexts is that agencies will not cooperate with one another. That they want to get their own credit, and they want to put their own stamp on things. And so while the ideal would be that a committee like the Economic and Social Rights Committee would be making certain recommendations, and you then have agencies like UNDP or others looking at it and saying wow, this a good idea. We'll pick up on this. Generally, they absolutely don't do that, because they want to appeal to their own constituencies and do things differently. So I come back then to the really crucial role of civil society, of local actors making things happen and not trying to rely much on the UN bodies for this. Now, sometimes the UN bodies do great things. UNICEF, obviously, has given a whole new life to the conventional right to the child, and does some superb work. So one can't generalize. But as a broad matter, I would wonder what your experience was in relation to women's rights, for example. How effectively have a lot of the UN agencies really picked up on the key issues that are identified in the human rights area? AUDIENCE: [INAUDIBLE] obviously not. But I think that that's the direction to look at because there's a tremendous amount of resources. And it's painful I think when Human Rights people see UNDP going out into the field and doing things that are maybe done with the best intent, but aren't informed by out national standards. And we have in another part of the UN, this whole elaborate mechanism or series of mechanisms that are examining the same issue and coming up with very specific concrete recommendations. Obviously, it's disillusioning when you see it in practice, but I wondered if more formal steps couldn't be taken to make that link. Because I don't think I've ever seen any kind of proposed framework or I don't know if it would go through the general resolution, JD resolution, or whatever the Human Rights Council, there would be ways in which that kind of agenda could be pursued in a bureaucratic structure, but I don't think it ever has been. PHILIP ALSTON: Just a very quick follow-up. Just an example-- GERALD NEUMAN: Great. PHILIP ALSTON: --the Human Development Report, which as you know is the flagship of the UNDP. For this year, it's 120, 130 pages, contains two references to human rights-- two. One of them is a quote from Archbishop Tutu. And the other one might be in relation to women's rights-- perhaps they couldn't avoid it. But the rest of the report goes way out of its way to avoid the phrase "human rights" and uses surrogates whenever it can. But it doesn't want to buy into the human rights framework. GERALD NEUMAN: Part of the process of treaty body strengthening, as I mentioned, related to the question of the resources made available to the treaty bodies, the General Assembly has a legitimate role in discussing resources. It's not altogether inconsistent with the independence of the treaty bodies that the General Assembly should decide how much it's going to make available in their regular budgets. And one big part of the political debate in New York over the years was where could savings be achieved? Where could costs, real or imagined, be cut in order to decrease the cost of operating the treaty body system? But an agreement was reached that the costs that would be saved would be reinvested in the treaty body system, counting the cost of operation of the treaty bodies and capacity building. And there were numbers of states who were brought into the coalition that produced the agreement, apparently, because they were interested in the making available of resources for capacity building. That was the attractive element of the package for them. One could imagine that the capacity building would be expenditures by the Office of the High Commissioner in investing in the ability of states to comply with recommendations coming from treaty bodies. But there was certainly no legal framework adopted as part of the GA resolution, and I'm not aware that any legal framework has been adopted within the Office of the High Commissioner to ensure that the money for capacity building is spent in quite that way. Please. MICHAEL ASHLEY STEIN: While agreeing completely with Professor Alston about the role of civil society in implementing rights and working quite a bit to try to get them to do that at the national level, there's two other variables that ought to be flagged. One is national human rights institutions, and the second is international NGOs, which are different than civil society. And whether those entities feel they either have mandates and/or resources to implement various conclusions, recommendations, thoughts, leads from committee bodies on the ground. GERALD NEUMAN: Thank you. AUDIENCE: Thank you so much. I would like to comment from the perspective of WHO [INAUDIBLE] 10 years as a human rights advisor on sexual and reproductive health, and just bring that on the discussion that it's actually [INAUDIBLE] treaty monitoring bodies that made it possible at the WHO [INAUDIBLE] of trying [INAUDIBLE] into the standards that they were. Because there were no interpretations before the convention on how to operationalize having to include [INAUDIBLE]. So there is a huge amount of investment from that side, and WHO [INAUDIBLE]. It's not the legal human rights agency. [INAUDIBLE] standards have to rely on the treaty monitoring bodies. On the other hand, there is a huge difference, as you pointed out. The legal human rights rigor. How the different committees are encouraging human rights and give explanation with that. That to the [INAUDIBLE] that is coming [INAUDIBLE] general comments and [INAUDIBLE] observation. Sometimes it's even difficult to understand [INAUDIBLE] observation is linked to each article of the convention. For an example, on sex seletction abortion, within the context of its dimension, this dimension against [INAUDIBLE], society, [INAUDIBLE]. So my question is whether if running [INAUDIBLE] of rigor, of legal interpretation, the human rights interpretation in the organization process, the process or the [INAUDIBLE] of the treatment [INAUDIBLE]. And the other one is about the formal [INAUDIBLE] for lack of the [INAUDIBLE] observation. And being in WHO for 10 years, capacity building is great. But I think it's really a waste of time to invest [INAUDIBLE] WHO countries, or with treaty monitoring, but [INAUDIBLE] countries. It's more about the [INAUDIBLE] that are being set. So if people are coming and going, the mechanisms are there. So my question is there any attempt in this organization [INAUDIBLE] to set these mechanisms? That if there is recommendations from the Human Rights Council abortion, is there any implication of WHO to follow up at the country level in Uganda. The concluding observations. Because that would be a very unique [INAUDIBLE] process for the human rights accountability [INAUDIBLE]. GERALD NEUMAN: Thank you. I think when I was speaking of harmonization, the harmonization discourse with which I am familiar is a discourse of harmonization among the treaty bodies. It is not a discourse of harmonization of the rest of the United Nations to the treaty bodies. Part of it comes from a concern on the part of states they not be subject to conflicting interpretations. Conflicting could be interpreted in a variety of different ways. Personally, in my view-- right, I said personally, in my view, the idea that one treaty imposes a higher standard of conduct for a state than another treaty does is not disturbing, and it seems almost inevitable that that should sometimes happen. What would truly be conflict is when one treaty is interpreted as telling the state to do x, and the other treaty is interpreted as telling the state do not do x. That would be a real conflict. Some of the discourse of harmonization seems to suggest that the treaty should be interpreted as requiring the states to do the same things, and that there's a real serious problem with one treaty body not going as far as another treaty body does in interpreting something. But it's at that level that the discussion is taking place. I think it's consistent with what Philip said earlier, to point out that the Human Rights Committee is a committee almost all of whose members are lawyers. It's a very juridical committee. There are other committees that are not as lawyer dominated. And it would no doubt be a biased statement on my part, even in my personal capacity, to think that the legal rigor of the Human Rights Committee's interpretations of the treaty is, therefore, more often greater than the legal rigor that might be found in another committee. And I wouldn't want to make a biased statement of that kind. Yes, please. AUDIENCE: I have a question about your remark earlier that Human Rights Committee generally doesn't issue general comments in order to change one line. I'm wondering why that was, especially with the alternative. Is to publicly saying, oh, if we say something different [INAUDIBLE], that seems unnecessarily complicated. Issue a new general comment, say, OK, this is the part that was changed. [INAUDIBLE] cost or lost? No. GERALD NEUMAN: The Human Rights Committee has been in operation since 1977. And over that time is has produced 34 general comments, and I hope it will complete the next one in October. That will be the completion of a three year process of the production of a general comment. PHILIP ALSTON: I don't think it should rush. I think it should wait until you've left the committee. [LAUGHS] GERALD NEUMAN: As some of you know, I am the rapporteur on the general comment that is in draft right now. And the goal of achieving it before my term ends, which will happen at the end of this year, is perhaps best achieved by my telling the other members, now, remember, if we don't get this finished before I leave, you will be the next rapporteur. They don't jump at that opportunity. The Human Rights Committee deliberates very considerably and invests a lot of effort in its general comments. And you could say why doesn't the Human Rights Committee adopt another category of general comment, which is the one week general comment. Now, there are treaty bodies that invest considerably less effort in their general comments and produce them somewhat considerably more rapidly, and perhaps without public deliberation. That is not currently the Human Rights Committees' practice. And so starting the process of having a new general comment essentially to write a general comment that would have one sentence is not the way the Human Rights Committee views general comments. I have now made a completely circular defense. PHILIP ALSTON: Jerry, can I-- that's something. I mean I think the more compelling-- I agree that on the face of it, it looks irrational. You're looking for what the committee says and you find something and it says valid general comment, and someone says, no, no, no. That paragraph is no longer valid. The real problem I think is the risk of reopening every general comment. And so if you take the Human Rights Committee on gender equality, for example. I remember my compatriot Elizabeth Everett, an old friend of Henry's, fighting very hard to get what, at the time, was a very progressive interpretation. So five years later you get a bunch of sexist male pigs who are suddenly on the committee, and they say, oh, that paragraph 14 of Everett's feminist nonsense needs to be revised. So we're going to do a quick revision of it. And you want to avoid that sort of thing. There's got to be more. Greater continuity and reflection than being able do a quick revisions, as it were. GERALD NEUMAN: Yes, please. AUDIENCE: You were saying earlier that often the general comments will reflect the experience of the committee, and perhaps draw on the concluding observations built up over time. And so part of the story behind the general comment at Article 3 is that the two women members of the committee actually planned together for at least three years. And paragraphs were inserted, and they were all agreed to. And then they decided, oh, let's pull them altogether into a general comment. Some of the colleagues said, oh, well, that's erratical. And said, oh, but we said this here in this year. We said that in that year, so they've laid the groundwork. So one has to work from within in clever ways sometimes. GERALD NEUMAN: Yes. Most of the time, the practice of the Human Rights Committee in adopting general comments is that general comments are basically restatements of committee interpretations. When I say it's a restatement, you know what restatements are, right. Restatements are restatements in a particular sense. So maybe that there will be things that are said in the general comment that have not been said before, have not been said in quite the same way. But that there's a lot of material. The Human Rights Committee has got about 2,000 decided cases, and all those years since the early 1990s of concluding observations to draw on in having things to restate. Sometimes the Human Rights Committee does confront a new issue and develop a general comment on a new issue. But most of the general comments have been of the restatement variety. Professor Merry. SALLY MERRY: Thank you. This has been very interesting. Listening to you, it seems clear to me what we really are interested in is the effects of the treaty body system. And as you're talking about it, this is a system that kind of sits halfway between something that's legal-- I mean doesn't have the power [INAUDIBLE] human rights course and political. And I'm wondering how you think these various treaty bodies negotiate this, because one way to do it is to write the right kind of policy-oriented general comments. But then one can say that that's really the legal way to do it. But in a sense a treaty body has to operate in both of these spheres. And I wonder if this doesn't pose challenges for the whole practice of what the treaty bodies do. GERALD NEUMAN: Hearing you, I hear the use of the words legal and political in a way which has some ambiguity in it, and which makes me want to state publicly that the Human Rights Committee is a independent expert body. It is not a political body in the sense in which the Human Rights Council is a political body. The Human Rights Committee is a body of independent experts that are making legal judgments about the requirements of the treaty. Now, we know what making legal judgments involves, but they are making legal judgments about the requirements of the treaty. In our role, in which human rights becomes a subject of politics, and they have to be aware of the fact that human rights will become a subject of politics, and take that into account in the decisions that they make about when and how to make and phrase their legal judgments in a particular way. In my experience, the Human Rights Committee largely acts as if it were a court. It isn't a court, but it acts as if it were a court. And I don't want to make that claim for all treaty bodies, nor do I want to make other claims about other treaty bodies. But that is the way, in my time on the Human Rights Committee, I've seen the Committee operate. SALLY MERRY: I'd like to clarify my point being that the effects are actually largely in what I would call political [INAUDIBLE], and political, cultural, social ideas, rather than purely the legal effects. GERALD NEUMAN: The outputs of the Human Rights Committee feed into a large world of other human rights mechanisms, other political mechanisms, other actions of civil society, all of which are essential for the Human Rights Committees' outputs to have any effect. Nothing ever happens just because the Human Rights Committee said it should happen. Professor Steiner. HENRY STEINER: I wondered at all the jockeying and strategies at work to put a particular paragraph in or excluded from a general comment. I'm talking treaty bodies in general, because over the decade I'm Professor Emeritus, I've somehow lost touch with the course, formal look at the treaty bodies, so this is really what's going to happen in the last decade. What consequence are they in the world, whether one treats them as a legal document, the way that the disposition a particular dispute is going to have some serious effect in the country it's addressed to, or simply-- hardly simply. Or as political policy statement. Does one have any clear idea of who pays attention to them? The Universal Declaration, for example, has not been revised because of general comment number x. I don't believe, probably, state constitutions from him. Have they been seriously considered before state courts dealing with their own domestic conceptions of free speech, or freedom of religion, or any other subject a given particular general comment has addressed? Are they debated in any important form? Do they come up? Or are they simply adrift, as Frank [INAUDIBLE] once described, the majority opinion that he dissented from, adrift as driftwood in the sea of the law, or whatever. So do they leave an imprint? Have they been important? Are they discussed? [INAUDIBLE] GERALD NEUMAN: Maybe I should let my colleagues speak first. PHILIP ALSTON: First of all, John Tasioulas is actually on a committee which is revising the Universal Declaration of Human Rights. So he can talk to you about it. He can talk to you about that later. This is most unorthodox, Jerry, but I wonder if Sally Merry could be asked to comment on that because she's done a huge amount of work on the impact of CEDAW in different respects. More than I think any of us have done from a social science perspective on impact. AUDIENCE: Well, I guess that's why I asked my question about the political/legal, because it seems to me that insofar as these treaties have an impact, it's their capacity to articulate at some kind of a transcendent level in a way that's legitimated by the international community, a set of ideas that then can be picked up and adopted by local actors and activists and translated into their own terms. So it seems to me what these treaties are really doing is articulating normative principles that take a legal form, and have some kind of a legal apparatus, but don't actually act as law, and yet, they're real effect is probably in their normativity and their universal acceptance-- oh, [INAUDIBLE] wants to add to this-- rather than the way they actually enforce judgment. And I agree with Philip. What I've seen is that the debate among country representative seem to me significant, and the way that these hearings give NGOs an international platform to say things that they might not be able to say or be heard in the domestic context. But these are all that I would consider cultural, social ideas. And I've heard a lot of that in your discussions about what treaty bodies do, as you're beginning to articulate the various principles that should govern things, like having to think about people's disabilities or what kinds of rights to help with this. So it seems to me that to see these as entirely legal is to miss this much larger set of impacts that they potentially exercise. PHILIP ALSTON: Henry, why don't you respond? HENRY STEINER: Well, I don't quarrel with anything you've said. My question really was are there such impacts, the people who are doing scholarly research, for example, on the overwhelming cosmic effect of general comment x, or general comments in general on the way we think about the world ourselves, God, and other important matters. Would you have any evidence to invent your thesis. Or suppose you were doing a humbler task, which was simply to say general comments of a certain character have seriously been considered in parliaments, or in lower [INAUDIBLE] commissions, or by NGOs advancing policy statements, as amnesty would? That was my question. AUDIENCE: General recommendation 19. AUDIENCE: Yes, that would count. AUDIENCE: If I can just answer that a little bit, but this requires a lot of research. I'm an anthropologist so I do grassroots work with NGOs. HENRY STEINER: I know your working hard. AUDIENCE: What I find happens is not that people say CEDAW says this or that. But that the existence of these treaties, and things like general recommendation 19 on biased against women, contribute collectively to things that the women's movement is already doing, helps to build alliances, creates a language that can be shared. But by the time it gets to the grassroots, nobody's talking about CEDAW. They're talking about women having the right to stand up for themselves. And so it's this translation, what I call vernacularization that's really important. Not that anybody's necessarily looking at the grassroots at those general comments. HENRY STEINER: You say they do enter into the general large diffused debate about the important matters they discuss. AUDIENCE: But indirectly and diffusely and over time. GERALD NEUMAN: And I would like to answer Henry's question in a slightly different way, which is to say speaking as an academic who's engaged in some study of what Anne Marie Slaughter would call the transnational judicial dialogue, does one find these texts cited and quoted in judicial decisions? Absolutely. What causative conclusion can we deduce from these citations? That's much more difficult. How do we know when a court has cited an international text? Because the text agrees with what the court wanted to do, or whether it cites it and follows it because it said so. How do we know when a court that wants to follow something because it was said will actually cite it, or may choose not to cite it because citing it would be de-legitimating rather than legitimating. So it's very difficult to know what causation is involved. But yes, these things do get quoted and cited. Please join me in thanking the panelists. [APPLAUSE]