6.1 Hypothesis 1: Reputational and legitimacy-based explanations
The reputational and legitimacy-based explanations can hardly account for the effectiveness of COs. Government members and officials were generally negative about the legitimacy of the six treaty bodies. The views demonstrating a lack of legitimacy and reputation of the treaty bodies in the eyes of government officials and members of government were corroborated by public statements in debates or documents as well as the views expressed in internal memos. These views also echo the observations of interviewed representatives from human rights institutes and NGOs and the scholarly literature (Alston and Crawford
2000; Bayefsky
2000; Keller and Ulfstein
2012). Note that Finnish government officials were not as negative and dismissive as Dutch and New Zealand officials. They referred to the shortcomings, but they were generally better able to put these deficiencies into perspective by pointing to the difficult context of the treaty bodies, such as the limited resources and time as well as the politicized elections for new expert members (Krommendijk
2014b: 357–359).
The following statements illustrate the low reputation and limited legitimacy of the treaty bodies in the eyes of government officials. One Dutch official from the Ministry of Social Affairs for example argued that the Committee on Economic, Social and Cultural Rights is “an amateurish Committee that made arbitrary decisions. As compared to, for instance, the ILO institutions, it functioned as a kangaroo court” (Reiding
2007: 146). Officials pointed to the basic and limited knowledge of several treaty body members about the national context and the poor preparation of some members. A New Zealand official held that treaty bodies do not have the background or expertise to deal with “huge policy issues” with “huge significance for states” (MacKay
1999: 16). Likewise, an internal briefing of the New Zealand Ministry of Women’s Affairs about the COs of the CEDAW Committee argued that: “it is disappointing that some of the recommendations do not fully reflect New Zealand’s domestic situation” (MWA
2008: appendix B). Officials also lamented the one-sided approach of treaty bodies and the fact that they easily take over information and criticism of NGOs without any factual check. The same briefing of the Ministry of Women’s Affairs about the CEDAW Committee stated that “some criticism … is unbalanced. In particular, some of the criticism gives undue weight to the input of non-governmental organization without any supporting evidence” (MWA
2008: appendix B). Moreover, government officials had the feeling that some of the COs were already completed before the actual dialogue, which in their view also hampered the legitimacy of treaty bodies. In addition, officials criticized the lack of independence and the political nature of the process as well. New Zealand Prime Minister Helen Clark stated about the Committee on the Elimination of Racial Discrimination: “This is a Committee on the outer edges of the UN system. It is not a court. It did not follow any rigorous process as we would understand one. In fact, the process itself would not withstand scrutiny at all […] Well, I think I have a somewhat better understanding of the UN system than they do” (Charters and Erueti
2005: 258).
These statements show that those who need to be persuaded; the government officials and members of government do not see the potential persuaders (the treaty bodies) as legitimate. Treaty bodies, thus, have a rather bad reputation. This reduces the reputational costs for states when they do not act upon the COs. There are also other reasons for the limited reputational costs for states and especially established democracies. Firstly, the COs and the treaty bodies are hardly known outside a small circle of diplomats and government officials (Steiner
2000: 38–39; Downs and Jones
2002: 112; Simmons
2009: 124–125). Secondly, it is often not clear when states deviate from COs, because COs are generally rather ambiguous and treaty bodies hardly determine in explicit terms in their COs that a country has violated a treaty provision (Guzman
2008: 1863). Thirdly, as was discussed before, established democracies with a rather solid human rights reputation, such as Netherlands, New Zealand and Finland, can relatively easily resist implementing unfavorable COs (see section
2.2.1). This is because a strong human rights-abiding status makes it possible to offset reputational costs of COs.
The question, however, remains as to whether or not the officials speak ill of the treaty bodies because the treaty bodies do not have legitimacy in their eyes or if they are trying to make the COs appear illegitimate because they simply do not like the recommendation.
8 In both cases the outcome would be non-implementation, but the underlying causal mechanisms are quite different. The answer is a bit of both. It is a natural reaction for governments to initially disagree with recommendations when they require a change of the status quo (Cohen
1996). This defensive attitude also stems from a certain degree of self-righteousness, especially among Dutch and New Zealand government officials. UN human rights treaties and the treaty bodies are primarily seen as relevant for others. An internal debriefing to the New Zealand Minister for Social Development about the dialogue with the CRC Committee in 2011, for example, mentioned that: “The Chair of the Committee later told me that our examination was though as they look to New Zealand as a world leader and they wanted to really test us and learn from our experience” (MSD
2011: para. 12). In order to justify their dismissive attitude, governments and government officials portrayed the treaty bodies —and their COs — as illegitimate by focusing on their deficiencies, such as their limited expertise or independence. They did this in order to downplay the necessity of implementing (specific) COs. The bad reputation of the treaty bodies in the eyes of officials thus enabled officials to discredit the COs.
One question is whether the variance in the effectiveness of COs of the various treaty bodies can be explained by different reputations of certain treaty bodies. This is not the case. Two findings in particular support this conclusion. Firstly, the lower legitimacy and reputation of the CRC Committee and its COs in the eyes of officials in all three countries has not led to a lower effectiveness of the COs in comparison with the COs of the other treaty bodies, as hypothesis 1 would predict. On the contrary. In section
5 it was argued that most of the follow-up measures as a result of the COs related to the COs of the CRC Committee. Government officials were, however, not more positive about the CRC Committee and its COs, compared with the other treaty bodies. They were sometimes even more critical about the CRC Committee (Krommendijk
2014a: 377–378). This is well illustrated by the views of Dutch government officials about the CRC Committee. One Dutch government official counted the CRC Committee among the “activist” committees that do not always keep a close eye on the text of the CRC. Some officials even held that the CRC Committee was undeservedly critical and tendentious and approached the state delegation without respect in some instances. They specifically singled out the attack of the Indonesian chair during the dialogue in 1999, allegedly based on personal feelings owing to the colonial past. One official spoke about “sneering and conceited remarks” about the “rotten policy” in the Netherlands. In addition, it was noted that the great majority of expert members of the CRC Committee had not read the report and did not seem interested in the discussion but primarily in other issues, such as their return flight or the submission of their expense account. Legitimacy-based explanations can thus not account for the higher effectiveness of the COs of the CRC Committee.
Secondly, further support against the hypothesis that a higher legitimacy translates into a higher effectiveness are the COs of the HRC monitoring the ICCPR. These COs have remained almost completely ineffective even though government officials in all three countries were less negative about the HRC. The HRC has a reputation of being the most professional and most serious committee. Officials generally mentioned the sessions and dialogues as among the best given the detailed and focused questions and structured dialogue. These relatively positive views have, nonetheless, not resulted in a higher effectiveness of the COs of the HRC. Table
3 showed that the COs of the HRC have been least effective of all the six treaty bodies, with the exception of the CESCR. Only four COs of the HRC have had some effect (Krommendijk
2014a: 378).
The only exception to the finding that legitimacy-based explanations cannot or hardly account for the effectiveness COs is the position of the Committee Against Torture in New Zealand and — to a lesser extent — Finland. Officials in both countries did not really question the legitimacy of the Committee Against Torture and they considered the dialogue with and the COs of this Committee relatively useful. Several government officials in New Zealand argued, for example, that the dialogue and the resulting COs in 2009 were better informed and more sensible. The latter was also attributed to the inclusion in the government delegation to the dialogue with the Committee Against Torture of officials from the Department of Corrections who have an operational background. This led to a more technical and better informed discussion with this Committee. The COs of 2009 consequently trickled through to the Department of Corrections and a couple of things were done at the operational level. Another reason for the latter was the open attitude of some officials. One official from the New Zealand Corrections Departments, for example, expressed a genuine willingness to learn from overseas and also change things to improve them. He noted that he was inspired by the dialogue with the Committee Against Torture in 2009 and persuaded to act upon the COs. After the dialogue he also exchanged several issues with a Committee member via email. The latter official initiated training workshops on the framework of international human rights obligations for prison personnel together with the New Zealand Human Rights Commission. Another example of persuasion on the basis of the Committee Against Torture are the measures taken to strengthen the independence of the Independent Police Conduct Authority. This was done as a result of the COs 2009 of the Committee in which it had expressed its concern about the impartiality of the Authority with respect to investigation into alleged acts of torture and ill-treatment by members of the police, because of the inclusion of current and former police officers (CAT
2009: para. 12). It recommended the Authority to be staffed with independent experts only. There was initial reluctance among government officials to address this CO because legislative changes had recently been made to assure the Authority’s independence already. The COs were, nonetheless, acted upon and led to a big overhaul of staff. One factor that contributed to the willingness to take measures was that the Chair of the Police Conduct Authority, Justice Goddard, was deeply concerned about the CO and its effect on how the Authority would be perceived. This might be because of her interest in and knowledge about the international human rights framework and its importance, which is illustrated -or influenced by- her election to the Subcommittee on the prevention of torture in October 2010.
According to hypothesis 1, the higher the legitimacy and reputation of the treaty body in the eyes of government officials, the greater the effectiveness of COs of that respective treaty body. There are few empirical results from the three established democracies included in this research that could support this hypothesis, with the possible exception of the Committee Against Torture and some of its COs in New Zealand.
6.2 Hypothesis 2: Domestic and transnational mobilization
The effectiveness of COs can primarily be explained by the mobilization and lobby of domestic actors. The following three examples, one from every country, show that domestic mobilization is crucial for the effectiveness of COs. They also illustrate how domestic actors, such as NGOs and MPs, use the COs to strengthen and legitimize their claims. The first example includes the steps taken in the Netherlands to avoid the joint detention of juvenile offenders and children institutionalized for behavioral problems. The CRC Committee recommended this in 2004 (CRC
2004: para. 59(d)). Shortly after the dialogue in 2004 between the government delegation and the CRC Committee, the government decided to house these two categories of minors separately. The government argued that this decision was made “partly in response” to the CO (UN Doc.
2008: para. 271). It took, however, until 1 January 2010 before the process of separate housing was eventually completed. In this period, various domestic actors kept pressure on the government to expedite this process. The CRC and the CO were used as a supporting argument by several domestic actors, including MPs and children’s rights NGOs (TK
2009/10: 12). Government officials and NGO representatives that were interviewed confirmed that the CRC in general and the CO in particular were two of the many factors that played a role in accelerating the separate housing of these two categories of minors.
The most prominent example of an effective CO in New Zealand was the prohibition of corporal punishment as the CRC Committee recommended in 1997 and 2003 (CRC
2003: para. 29–30). As a matter of fact, it was not a prohibition, but a repeal of section 59 of the Crimes Act 1961 which provided a defence for parents charged with assaulting their children to use reasonable force for the purpose of correction. The legislative change was initiated by the MP Bradford (Green Party). She announced her private members Bill on 6 October 2003, 3 days after the CRC Committee adopted the COs. Bradford explicitly stated that she was “stirred into political action by the recommendations that the UN Committee on the Rights of the Child made on two occasions” (Wood et al.
2008: 204). The COs of the CRC Committee were not sufficient in themselves to realize the legislative change. A comprehensive and detailed study of 2008 about the issue concluded that the eventual repeal was due to “rich combination of influences that helped to bring about the eventual change” (Wood et al.
2008: 33). Crucial was the advocacy of the Children’s Commissioner and NGOs like End Physical Punishment of Children (EPOCH), UNICEF and Save the Children. There were regular exchanges between Bradford and child advocates and children’s NGOs, some of which also acted as advisors to her. This lobby already started before the COs 1997 and continued until 2007 when the Act was adopted after a lengthy and complex political and legislative process. The reason that it took more than 4 years before the Act was adopted was because of the heavy opposition from Christian lobby groups and large parts of the population who feared that repeal would seriously undermine the authority and autonomy of parents and give children an excuse to misbehave (Wood et al.
2008: 55 and 57). In such a polarized environment, the COs eventually helped -amongst many other factors- to tilt the balance in favor of the children’s rights minded proponents of repeal. The COs were an (international) endorsement and support for them. It gave them an additional level of legitimacy and as a justification for change. The CRC and the COs were also considered useful instruments for advocates to hang their arguments on and gave them a strong position to discuss and advocate the matter with Ministers.
The third example of an effective CO is the recommendation of the CRC Committee to Finland to establish a separate Children’s Ombudsman (CRC
1996: para. 1027). In 2000, the government expressed the view that it was “unlikely, in the current political atmosphere, that a separate Children’s Ombudsman would be created,” especially because there was no budget for it (UN Doc.
2000: para. 43). Nonetheless, a new government “arrived at a significant milestone in 2003” by including the establishment of a separate Ombudsman as one of the objectives in its Government Programme of 24 June 2003 (UN Doc
2003: para. 37). The Children’s Ombudsman took office on 1 September 2005. What was the role of the COs in this change in the position of the government? It is important to note that there had already been a discussion in Finland about the matter since the 1980s. It had especially been on the political agenda since 1995, prior to the COs 1996 (Niemi
2003: 36). This means that the COs primarily coincided with the will and needs at the national level. The COs played a strong role among many other factors by increasing the pressure and by helping proponents in national discussions with an extra argument. In that way, the COs gave a final or extra push and, hence, sped up the process. One important factor was the role of NGOs who repeated and, hence, kept the issue on the agenda.
The three examples show that effective COs have not been a sufficient cause on their own to instigate a change in policy or legislation. Rather, COs have almost always been a contributory cause among many other factors that jointly had an effect (Cohn
1991: 297; Kälin
2012: 64). This means that COs hardly do any “heavy lifting.” This does, however, not mean that they are merely epiphenomenal. COs have had an intensifying or catalyst effect, whereby they supported, strengthened or legitimized the arguments of domestic actors. COs have in this way supported or given extra strength to a certain direction and have pushed or accelerated a certain political process. The examples also show that an important precondition for the “landing” of the COs is the existence of a political momentum in the form of an on-going national debate. In addition, the concerns in the COs should resonate with the activities, interests and claims of some domestic actors. Domestic actors play an essential role in the political or legal process which leads to the COs’ effectiveness.
One question is whether mobilization is always a necessary condition. Has there been instances in which governments have acted upon the COs in the absence of (significant) domestic mobilization? This only happened in a few cases when implementation of COs had only limited financial implications. The effectiveness of such COs was frequently the result of endeavors of individual government officials based on their personal preferences. Officials sometimes used the COs as an additional argument or justification to convince their minister or parliament of the necessity of change. The endeavors of officials only bore results in the absence of public attention when there was no or hardly any domestic opposition. Individual government officials were hardly in a position to “decide” a national debate when the government, parliament or public opinion was against change. One example is the abolishment of the possibility of imposing a life imprisonment on minors in the Netherlands in 2005 (CRC
2004: para. 59). One government official interviewed, who was closely involved in the drafting of the bill, stated that the legislative amendment was a clear result of the COs. The official argued that it was the official’s personal initiative to take up this issue. The official perceived political room for this proposal and anticipated that both the responsible minister and parliament would agree with it. The interviewed official argued that agreement would have been easy to secure because life imprisonment of minors was a relative non-issue in the Netherlands and had never been applied in practice. The interviewed official saw implementation of these COs primarily as a symbolic act without actual (political) costs and consequences. Another example is the criminalization of torture in Finland. On 1 January 2010, new penal provisions entered into force with that included a separate punishable offence for torture. This issue was considered a relative non-issue and of “symbolic value” rather than something which would amount to a real change requiring considerable (additional) resources (UN Doc.
2005: para. 4). A related matter is whether domestic mobilization has always been sufficient. This is certainly not the case, nor does mobilization always result in (the desired) policy change in line with the COs. Lobby and advocacy has obviously not always been successful and has not led to legislative, policy or any other measures each time. Examples include several COs in relation to the asylum legislation and procedure in the three countries, even though these COs have been used quite frequently in the lobby of NGOs and by predominantly left-wing and green MPs.
The pertinent question that remains to be answered is whether the difference in the effectiveness of COs of the six treaty bodies could be explained on the basis of different levels of domestic and transnational mobilization. It was argued in section
6.1 that reputational and legitimacy-based explanations cannot account for this variance in the effectiveness of COs. Rather, it is the mechanism of domestic and transnational mobilization that is determinative. There has been more mobilization and lobby of domestic actors in relation to the CRC Committee than the other treaty bodies. In the Netherlands there were, for example, 56 parliamentary minutes in which MPs referred to the COs of the CRC Committee, while the COs of the other five treaty bodies together were mentioned in only 44 min (Krommendijk
2014a: 218 and 256). Media coverage of the reporting process under the CRC has also been significantly higher in the Netherlands than any of the other five treaty bodies. 37 of the 97 articles referring to the reporting process under the six treaties dealt with the CRC (Krommendijk
2014a: 256). In addition, the strongest and most active NGOs with respect to reporting in the Netherlands were children’s rights NGOs. A similar picture can be sketched for New Zealand and Finland. In all three countries, there have been large coalitions of children’s rights NGOs having an interest in and focusing on the reporting process under the CRC. These NGOs have been more professional and better funded than many of the other domestic human rights NGOs. They have deliberately used reporting and COs to inform their advocacy and to support their arguments. What’s more, in New Zealand and Finland there has also been a Children’s Ombudsman who has been closely involved in the reporting process and the monitoring of the implementation of COs. Both Ombudsmen have used the COs as an important part of their advocacy and lobby work. A similar picture can be sketched for the mobilization in relation to the CEDAW Committee, which is slightly less than that in relation to the CRC Committee (Krommendijk
2014a: 255–257 and 369–372). By contrast, mobilization on the basis of the COs of the other four treaty bodies, and especially the HRC and CESCR, has been considerably lower in the three countries (Krommendijk
2014a: 369–372).
The finding that domestic mobilization in the three established democracies primarily exists in relation to the COs of the CRC Committee, and to a lesser extent the COs of the CEDAW Committee, suggests that the rights of innocent or vulnerable people may be more of an issue in established liberal democracies than elsewhere in the world. This is also visible in Table
3 indicating that the effectiveness of COs related was highly concentrated around two human rights issues: rights of the child (CRC) and, to a lesser extent, discrimination against women (CEDAW). It could be argued that in other types of countries other human rights treaties or issues receive more attention. Further research is necessary to establish whether this is indeed the case. The limited evidence available so far indicates that the CRC has had more effects than other treaties in some countries (Simmons
2009, 357–358). This illustrates that children’s rights are generally easier to get around and have a built-in pressure group (children), on behalf of whom many professional NGOs operate. Children’s rights are also seen as less controversial, at least in principle and on an abstract level.
The observed variance in domestic and transnational mobilization also implies that there is not a strong relation between the legitimacy and reputation of the treaty bodies and the level of mobilization, contrary to the expectation formulated at the end of section
2.2.2. As said before, there has almost been no mobilization on the basis of the HRC even though this treaty body enjoys the most solid reputation of the six treaty bodies. By contrast, the greatest level of mobilization existed on the basis of the COs of the CRC Committee, which enjoyed considerably less legitimacy in the eyes of government officials than the HRC. Some anecdotal evidence was, however, found in support of this relationship when comparing the mobilization in relation to the six UN human rights treaties with several Council of Europe mechanisms. The ECtHR, the European Committee on the Prevention of Torture (ECPT) and the European Commission against Racism and Intolerance (ECRI) were seen by Dutch government officials and other domestic actors as more legitimate than the UN treaty bodies. Partly because of this, there has been greater domestic mobilization in the Netherlands in relation to these regional human rights monitoring bodies (Krommendijk
2014a, 113–114, 137 and 209–210). Future research should examine this relationship between the legitimacy and reputation of international (human rights) monitoring bodies and mobilization in more detail.
Hypothesis 2 expected that the greater the level of domestic or transnational mobilization, the higher the effectiveness of COs. This article found empirical support for this hypothesis. The dominant mechanism explaining the effectiveness of most of the COs in the three established democracies is indeed the lobby and advocacy of domestic and transnational actors.