5. What Minimum Standards Can We Expect from Concluding Comments?
Chapman provides an excellent summary of the factors needed in order to monitor the compliance of a state party to a covenant:
1) a clear conception of the specific component of the right and the concomitant obligations of States Parties;
2) the delineation of performance standards related to each of these components, including the identification of potential major violations;
3) collection of relevant data, appropriately disaggregated by sex and a variety of other variables;
4) development of an information management system for these data that would facilitate analysis of trends over time; and
5) analysis of these data.174
As the HRC draws its Concluding Observations from the reports that the state parties submit, there is no doubt that its ability to write an accurate concluding comment will depend on the detail and the data included in the various country reports. For example, if a state party provides no proper data on the incidence of maternal mortality or fails to explain what the major causes of maternal mortality are (as happened with Paraguay),175 the HRC will not be able to include this in the concluding comment.
Perhaps if state parties knew exactly what they were meant to include in their reports, and what their obligations were, they would be able to provide more accurate information. The General Comments rendered by the HRC are meant to give guidance to various governments on the nature and scope of each article in the Covenant. These General Comments, therefore, must be more specific. For example, General Comment No. 6 does not mention that governments must attempt to reduce maternal mortality, and yet the HRC repeatedly stresses that high rates of maternal mortality reveal that women’s right to life is being violated.
In order to enable effective state monitoring and compliance, the Human Rights Committee must set out definite guidelines. For instance (building on the factors Chapman proposes):
1) an updated definition on the nature and scope of the right to life, what it entails, and an idea of what governments’ positive and negative obligations are towards protecting this right;
2) the delineation of indicators176 to rate state parties on their compliance with this right, examples of major violations of the right and examples of how different countries have corrected their violations;
3) different recommendations of concrete implementations (instead of just asking the country to take ‘additional measures’);
4) request for specific data, desegregated by sex;
5) comparison with previous reports to reveal a trend or pattern;
6) if changes have been made by a country, a description of the impacts of those changes.
It is possible to see how a well-written Concluding Observation that contains all of the above information would be an excellent resource for effective state monitoring because it would enable the HRC to see, at a glance, the current status of the country with respect to the right to life: how the state is still violating the right to life and how it is attempting to address the violation, if at all. It would also be easier to compare such reports over time. The advantage of having a well-framed concluding observation can be seen in the cases of Peru177 and India,178 for example, two countries whose Concluding Observations present an informative portrayal of the current status of the right to life with respect to women.
The concluding observation on Peru is very interesting because although only three paragraphs in total deal with the problems faced by women, they are full of information.179 Paragraph 13 opens by stating exactly in which areas the country failed to provide sufficient information on the status of women.180 The Committee mentions precisely what it would like to have data on: ‘the legal capacity [of women], the frequency of violence against female detainees or prisoners, legal and practical restrictions in the labour sphere, and the impact of recent laws and programmes designed to solve the problem of violence against women.’181 This establishes at the very beginning the weaknesses of the country report, and gives Peru a specific idea of what it will have to include in its next report.182
Paragraph 15 points out specific laws that still need to be reformed or repealed.183 The Committee points out exactly which provisions of the ICCPR are violated by the laws.184 By giving Peru an indication of the kinds of laws that violate certain articles in the Covenant, Peru gains an understanding of the definitive nature and scope of the articles in question.185 The concluding observation expresses concern with restrictive abortion laws, and confirms that illegal abortion is the main cause of maternal mortality.186
Finally, in Paragraph 22, the HRC recommends which laws should be changed, and what measures implemented, to bring the country into compliance with the Covenant.187 Without specifically asking Peru to abandon its restrictive abortion laws (a request that would only give rise to strong disagreement from the government), the HRC simply insists that the country ‘ensure that women do not risk their life by resorting to illegal abortion.’188 This way, Peru is encouraged to come up with ways to reduce maternal mortality, while still maintaining laws that protect the ‘sanctity’ of life of the foetus.189
The report on India is similarly effective in presenting a well-rounded depiction of the country’s compliance with the ICCPR with regards to women.190 In Paragraph 16, the HRC acknowledges India’s attempts to take measures to comply with the ICCPR by enacting legislation to protect women’s right to life; in the same paragraph, however, the Committee emphasises that the enactment of legislation in this instance is not enough.191 The impact of the legislation has been minimal in India, and therefore more positive steps must be taken to change attitudes toward certain traditional practices.192
A list is provided of the specific provisions and practices that violate the Covenant (however, in this case, a list of which articles are violated is not provided).193 The Concluding Observation then sets out recommendations and explains that it will need details on the specific functions, powers, and activities of the National Commission for Women in India’s next report in order to check on the continuing status of women in the country.194 Finally, a list is provided of more areas where violations are occurring, and the Committee gives recommendations that must be implemented in order for India to comply with the Covenant; these definite guidelines makes it easier for India to know exactly what is expected.195
The main problems with the Concluding Observations of other countries are generally: a lack of specificity with regards to which exact articles of the covenant are being violated; a lack of detailed recommendations to guide the country in correcting violations; and a lack of information on the impact of measures that have been taken in an attempt to comply with the Covenant. The report on Iraq, for instance, welcomes the repeal of the law exempting ‘honour killings’ from prosecution, but is silent on whether this has actually reduced the number of honour killings.196 The concluding comment on Nigeria demonstrates concern over the systemic discrimination against women but, apart from calling for general educational measures to change attitudes towards women, does not make any definite recommendations, nor ask for specific data to show the real frequency of violence toward women, nor even show how it intends to monitor the situation of women in general.197
This lack of specific recommendations for dealing with the low status of women in Nigeria is especially disappointing. Studies reveal that male dominance has deep sociocultural and religious roots in Nigerian society.198 It makes sense, therefore, for the HRC to urge the government to undertake educational programs to change these traditional attitudes, but this is clearly not enough. Osakue and Martin-Hilber state that even though Nigeria has ratified both the Women’s Convention and the ICCPR, and even though the 1979 constitution forbids discrimination based on sex, many legal texts still contain references to women as the property of their husbands, and wives are given few rights vis-à-vis their husbands.199 None of these laws, however, are mentioned in the concluding comment on Nigeria. The Committee does not demand that Nigeria create a federal law to prohibit FGM (as currently no such law exists) and is silent on the excessively high maternal mortality rate, which statistics show to be at 1,000 per 100,000 live births.200
It can be argued, nonetheless, that even if the HRC had produced a detailed and specific report on Nigeria, the government may have paid little attention to it. Even if one always managed to put together informative, well-framed Concluding Observations, Petchesky and Judd explain that the major problem with formal documents like Covenants is that (given the continued weakness and divisions plaguing international organisations), they rely for their enforcement on existing governments that are often corrupt, unstable, and uncommitted.201
Unless international organisations are powerful enough to punish state parties for their continuous violation of human rights, there is little that can be done to enforce the fundamental rights delineated in international conventions.202