UN Concluding Observations: Some Reflections and Resources
On March 27, the UN Human Rights Committee issued its Concluding Observations to the U.S., following the Committee’s review of US compliance with its obligations under the International Covenant on Civil and Political Rights. Many NGOs have already posted their reactions to the Concluding Observations, and have promised to work domestically to move ahead with many of the UN recommendations. In the past few years since the US has been more active in reporting to monitoring bodies, many in US civil society have become accustomed to this drill: 1st, US Report; 2nd, Civil Society Shadow Report; 3rd, UN Review; and 4th, UN Concluding Observations.
This occasion prompted me to think about the mechanism of Concluding Observations. A Westlaw search of law journals for the past 10 years yielded 1369 cites to Concluding Observations. Clearly, scholars are paying attention to these and using them, at least in footnotes. However, a search for critical analysis of Concluding Observations yielded much less, just a few dozen cites over the past decade. A library scan also revealed a few books and relevant chapters. For example, in her 2001 Report: The UN Treaty System: Universality at the Crossroads, Professor Anne Bayevsky devotes several pages to critique and recommendations for improvement of the Concluding Observations mechanism.
The most comprehensive of the articles addressing Concluding Observations is Michael O’Flaherty, The Concluding Observations of United Nations Human Rights Treaty Bodies, 6 Human Rights L. Rev. 27 (2006). Among other things, O’Flaherty (a longtime member of the Human Rights Committee) notes that the practice of issuing concluding observations began in 1990 as a way to expand and facilitate greater dialogue with States Parties. He credits the Committee on Economic, Social and Cultural Rights with issuing the first such observations in the course of reviewing compliance with the ICESCR.
More recent scholarship has evaluated the practice from several perspectives. Several authors in transcribed remarks, reproduced in Duplication and Divergence in the Work of the United Nations Human Rights Treaty Bodies, 105 Am. Soc’y Int’l L. Proc. 515 (2011), questioned the substantive overlap between treaty bodies, often reflected in the Concluding Observations. An example from these most recent Concluding Observations is the Human Rights Committee’s comments on the racial impacts of the US criminal justice system, an issue also squarely within the bailiwick of the CERD Committee.
In Secondary Human Rights Law, 34 Yale J. Int’l L. 596 (2009), Monica Hakimi of University of Michigan questions what legal weight should be given the Concluding Observations of monitoring bodies. Among other things, she argues that State reports and Committee pronouncements talk past each other, doing little to facilitate real dialogue and agreement.
Finally, in New Proposals for Human Rights Treaty Body Reform, 22 J. Transnat’l L. & Pol. 29 (2013), Joanne Pedone and Andrew Kloster, of the Heritage Foundation, return to first principles to question the legitimacy of Concluding Observations, noting that there is no mention of this mechanism in the underlying treaties themselves.
As we approach 2015, the twenty-fifth anniversary of the date O’Flaherty identifies for the first use of Concluding Observations, perhaps this is a good occasion for taking a longer look at this mechanism for international dialogue. Are any Human Rights Law Journals still looking for a Symposium topic for 2015?