Chapter 7:
Work with Intergovernmental Bodies

In developing its ESC rights program, an organization may wish to formulate a strategy for work with intergovernmental bodies. There are a large number of such bodies, but workshop participants focused their discussions on a limited number, in particular specific human rights treaty bodies54 and mechanisms available through the International Labour Organisation.

Human rights covenants and conventions are treaties among governments. Each has a monitoring mechanism which provides oversight of governmental programs and actions affecting the rights guaranteed by the treaty. Because they are created by treaties,55 the mechanisms are primarily shaped by and accountable to the governments which are states parties to the particular instrument. However, some intergovernmental bodies with oversight related to ESC rights have developed channels for the contribution of NGOs to the monitoring process. A smaller number have mechanisms whereby NGOs can use complaint procedures.

Should an Organization Use Intergovernmental Human Rights Mechanisms?

National and local-level NGOs may logically ask whether and how these intergovernmental bodies and mechanisms can be useful to their work. Although the prospect of utilizing intergovernmental mechanisms can be appealing, submitting reports or using intergovernmental complaints procedures can be very time- and resource-consuming and yield limited results. Workshop participants experienced in working with intergovernmental bodies had enjoyed varying degrees of success in achieving their desired outcomes. In general, they had concluded that an organization can gain more productive results if its use of an intergovernmental mechanism is a tool to support and complement its ongoing domestic work. Thus, when an NGO is considering engaging an intergovernmental mechanism, it is important that it begin with an examination of its existing goals, programs and activities. Working from this framework it can go on to assess whether and how employing an intergovernmental mechanism might advance these goals and programs, and finally decide whether the anticipated outcomes will be worth the investment of time and resources.

The NGO will further need to explore which intergovernmental body would be most appropriate. A primary consideration in this regard is, of course, the organization's focus (for example, children, women, housing, etc.) and what it hopes to achieve. Beyond that, it is also important to research the body's history to determine the nature and quality of its work, the government's record with regard to the body, in particular the seriousness with which the government has taken comments or recommendations from that body in the past. It should also consider such issues as the government's sensitivity to international opinion and the likelihood of the NGO's being able to "leverage" a comment or recommendation from the body to influence governmental actions.

In making a decision an NGO may wish to consult with other organizations in the country that have used the body or mechanism, and contact international NGOs that have knowledge and experience with different bodies.56 Such organizations may be able to assist in the strategic thinking about which mechanism would be the most effective, given the goals of the NGO, and what approach should be taken in using a particular mechanism. They will also be able to inform the organization about procedural questions related to the development of complaints or reports.

Some Uses of Intergovernmental Mechanisms for National and Local NGOs

NGOs may choose to approach intergovernmental bodies and utilize human rights mechanisms for a variety of purposes and in a variety of ways. Following are some of the ways in which they can be used.

Using Recommendations and General Comments Issued by Intergovernmental Bodies

The primary task of the intergovernmental human rights bodies discussed by workshop participants is to review periodic reports submitted by states parties to the particular convention on the status of the rights that are the subject of the convention and the laws and programs the government has enacted to protect and promote the rights. Each convention or covenant determines the frequency with which states parties must submit their reports. Governments send their reports to the treaty body prior to the session in which the report is to be reviewed, thus enabling members of the body to prepare questions to which the state is to respond at the review session. Following consideration of the official report, the treaty body issues comments and recommendations to the state party. Governments are expected to implement the recommendations and report on their progress toward fulfilling them in their next periodic report.57 NGOs can use the recommendations and comments as a tool for national advocacy58, to monitor the government's compliance with its obligations, or to help develop their conceptual framework for a given right(s).

Treaty bodies also occasionally have days of general discussion to examine issues which affect or relate to the rights they monitor, clarify aspects of the content of a specific right and the nature of a state's obligation. These discussions generally focus on a report developed by a special rapporteur which examines a specific issue or aspect of a right; the body also hears testimony of experts. It issues General Comments to summarize the key points raised in the discussion and to outline its conclusions. General Comments can be very useful to activists as they develop their elaboration of the core content of and state obligations related to specific rights. They can also use these comments to help frame an argument for a rights claim. On occasion, an NGO which has made significant headway in developing its conceptual framework for a given right has submitted a paper for consideration by the relevant treaty body. For example, Provea sent the right to health framework detailed in Health as a Right to the working group assigned by the CESCR to draft General Comments on the right to health.

The Use of Complaints Procedures

NGOs commonly engage intergovernmental mechanisms to seek a remedy for a violation or to pressure a government to cease activities which violate, or could violate, human rights. Inter- governmental complaint procedures require that domestic remedies be exhausted before engaging an international mechanism. This can include demonstrating that no domestic remedies exist. For example, it may be that in a given country, courts will not recognize claims of violations of the right to housing. In such a case, it can be demonstrated that domestic remedies have been exhausted.

The nature of a treaty body's response to a complaint varies depending in part on the rules and procedures of the particular body. Complaints which are submitted generally include requests for specific action, such as commissioning further investigation into the situation or making pointed recommendations to the government related to a given policy or practice. For example, in the past several years, Provea has worked in collaboration with Venezuelan trade unions on several workers' rights campaigns. It came to their attention that national legislation which was being introduced in Venezuela would violate workers' rights. Provea and the trade unions presented a complaint to the ILO requesting that it review the proposed legislation and furnish specific comments to the government. In this way, the government was pressured to make changes on sections of the legislation to conform with the ILO recommendations and standards.

 

SERAC Approaches the African Commission The Social and Economic Rights Action Center (SERAC) seeks to promote ESC rights in Nigeria. It works primarily at the national level to monitor and document governmental ESC rights practices, advocate for legislative and policy changes, promote popular awareness of ESC rights through education and information programs, and provide legal assistance to groups and individuals claiming their ESC rights. With the Center for Economic and Social Rights (CESR) based in New York, SERAC co-authored a petition to the African Commission on Human and Peoples' Rights alleging violations by the Nigerian government of the right to health and a healthy environment, the right to housing, and the right to food. (See Appendix F for the text of the communication.) SERAC and CESR sought the intervention of the African Commission "because of the futility of legal action in Nigeria resulting from the operation of ouster clauses contained in military decrees removing jurisdiction of the courts from entertaining human rights cases." Through the submission of the complaint, the petitioners aim to recruit the help of the Commission in pressuring the Nigerian government to cease actions which are violating the mentioned rights and redress violations already committed. Another use of the complaints procedure could be to seek clarification by an intergovernmental body on specific aspects of the core content of a right. In the same way that litigation can be used at the national level for this purpose, organizations working to develop their conceptual frameworks for specific rights may choose to bring a complaint which, based on the conceptual framework they have developed, they believe would exemplify a particular aspect of a right or state obligation. They may seek comments or a recommendation from the body which acknowledges that the entitlement or obligation in question is, in fact, part of the core content of the right.

Development of NGO Alternative Reports60

Some intergovernmental bodies, such as the Committee on Economic, Social and Cultural Rights and the Committee on the Rights of the Child, invite the submission of NGO "alternative" reports as a method of cross-checking information provided in the periodic reports of states. Activists and organizations may use these reporting processes as a tool to alert the government that its actions are being monitored by organizations within the country, to draw attention to and seek a remedy for a given violation, or to clarify the nature and extent of a govern-ment's obligation with regard to a given right or rights.

NGOs can develop a general alternative report following the guidelines given to states parties for the development of periodic reports. When NGOs have access to the government's report in sufficient time before the review session, another method for devel-oping an alterative report is to make an assessment of the infor-mation provided by the gov-ernment, fill in gaps where the government has not reported on certain problems or point to a lack of appropriate government action. (See example below.)

 

Alternative Report Developed by Colombian NGOs In 1995 the Colombian Commission of Jurists (CCJ) submitted an alternative report to the CESCR in coordination with other Colombian NGOs. The CCJ obtained a copy of the government's initial report submitted to the CESCR's inter- sessional working group. Based on their review of the initial report, the NGOs developed a list of 80-85 questions related to gaps they identified or inaccuracies in the governmental information, and submitted this list to the CESCR working group. From this list, the working group posed around 40 questions to the government. The NGOs also used these questions as a guideline for writing their alternative report, which was submitted in Spanish. The CCJ sent a 10-page summary of the report in English to the non-Spanish-speaking members of the Committee. In addition, it developed a 4-page summary of the report which was accepted by the UN as an official document and thus was translated into all of the UN working languages by UN services.

NGOs may also want to use the reporting process to focus attention on a particular, persistent problem or egregious situation with the aim of obtaining specific recommendations or a reprimand from the monitoring body. In this sense, the alternative report would function similarly to a complaint. Experience has shown that in this context reports are most effective if they clearly and concisely state the problem or alleged violation, provide supporting evidence, and give specific conclusions they would like the monitoring body to consider. (The example below illustrates how Canadian activists have focused their reports and used recommendations in a strategic way.)

 

CERA Uses Intergovernmental Mechanisms to Establish Channels for Claiming Rights Canada has ratified the International Covenant on Economic, Social and Cultural Rights. While there are no explicit provisions for economic, social and cultural rights within the Canadian Charter of Rights and Freedoms, Canada's Supreme Court has recognized that it is appropriate to refer to the Covenant when interpreting the rights in the Charter. However, courts do not have a strong record of providing remedies to claims brought by poor people using the Charter of Rights and other human rights legislation in Canada. The Centre on Equality Rights in Accommodation (CERA) believes that the ability to claim a right through a judicial or quasi- judicial forum is critical to the enjoyment of the right. It therefore seeks to strengthen the role of the courts, human rights tribunals, and other domestic enforcement mechanisms in protecting and enforcing the rights of poor people. It sees intergovernmental human rights mechanisms as a means for helping to establish a framework for claiming rights in Canada. In 1993 and again in 1995, CERA worked in coalition with Canadian anti-poverty and women's groups to present reports to the CESCR. The reports illustrated that the repeal of specific legislation and the refusal of the courts to deal adequately with the rights claims of poor people violated Canada's obligation under the Covenant to provide appropriate legal protections of ESC rights. The NGOs tailored the reports to illuminate the record of the courts with regard to ESC rights and specifically sought and obtained comments from the Committee recommending that the courts should use a broader interpretation of rights in the Charter of Rights and Freedoms in order to provide appropriate judicial remedies to violations of ESC rights. The anti-poverty coalition is now launching a major challenge to federal legislation which revokes basic components of the right to an adequate standard of living. In preparing the argument in this and many other cases, CERA has extensively used the comments and recommendations issued by the CESCR.

In another example, the matrices developed by the Caribbean Initiative62 have been used by coalitions of NGOs in several Caribbean territories to systematically evaluate draft reports to be submitted by governments to the Committee on the Rights of the Child.

 

Tips for Submitting Alternative Reports to Intergovernmental Monitoring Bodies Workshop participants had some general suggestions for developing reports: Set clear goals for the desired outcome of a report and incorporate conclusions in the report which outline the desired results. Consider using the report process as an opportunity to educate other activists and NGOs about human rights standards and to work in coalition. Keeping in mind that the treaty bodies are composed of individuals who have limited time and attention, develop concise reports. Research past government submissions and the government's record in responding to comments and recommendations from the treaty body in order to identify inconsistencies with previous government statements to the body or failures to act on the body's earlier recommendations and comments. Where possible, develop and submit the alternative report in advance of the review session to give the monitoring body time to study the issues and ask for more information if necessary. This will also help it pose more precise and informed questions. Be aware of the potential for disappointment and keep expectations realistic. Be sure that the outcome of the reporting process is shared back home. It can be helpful to get the media to report the results of a session.

 

Work on Multilateral Development Banks

Multilateral development banks (MDBs) -- including the World Bank Group63 and regional development banks64 -- are specialized, autonomous intergovernmental organizations. The policies and practices of these agencies have a significant impact on the enjoyment of human rights in borrowing countries. For several years, structural adjustment programs (SAPs) have been imposed on borrowing countries as a condition for financial support from MDBs and the International Monetary Fund. These SAPs typically require major restructuring of government programs, and have resulted in the reduction of monies allocated to social programs and an emphasis on privatization of social services. Such changes clearly affect the protection and fulfillment of ESC rights. In addition, MDBs design and provide loans to countries for a range of development projects. Some, such as hydroelectric dams and large-scale irrigation schemes, can have an enormous and often devastating impact on the lives and survival of peoples and ecosystems.

Recognizing the magnitude of MDBs' potential influence on the fulfillment and enjoyment of human rights, many activists and organizations are eager to learn how they might use human rights standards to assess and affect MDB policies and programs. The most intense consideration of the responsibility for human rights of the MDBs has been undertaken with regard to the World Bank. The World Bank is a specialized agency of the United Nations.65 However, under the terms of its agreements with the United Nations, it does not consider itself bound by the human rights provisions of the UN Charter.66 This denial of responsibility and accountability for human rights, in conjunction with procedures which have historically been non-participatory, bureaucratic and closed, pose considerable challenges to developing strategies for affecting the MDBs using a rights approach.

Through the hard work and persistent advocacy by local, national and international environmental and indigenous rights NGOs, some progress has been made in increasing the participation of communities and NGOs in the implementation and evaluation of World Bank projects. The World Bank has developed policy statements related to participation and has established an Inspection Panel67 which reviews complaints alleging that certain project-related Bank policies have been violated. However, to date there is limited experience and success with using these mechanisms and in any case neither the Inspection Panel, nor the MDBs more generally, use human rights standards for the review of complaints brought to them.

As with many other aspects of ESC rights advocacy, work on analyzing MDB policies and practices affecting ESC rights and developing methods to pressure these bodies to take their human rights responsibilities seriously are underdeveloped. Currently there are few resources available to guide NGOs interested in exploring this work. Although neither NGO has specifically used a rights approach to monitor or influence Bank policies related to ESC rights, two organizations which can be helpful in advising groups about ways to gain information and access to the Banks are the Bank Information Center68 and the Lawyers Committee for Human Rights.69

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55. In 1986, the Committee on Economic, Social and Cultural Rights was set up by the United Nations Economic and Social Council as an independent expert committee to undertake the task of monitoring states' compliance with the ICESCR. See Philip Alston, "The Committee on Economic, Social and Cultural Rights," in The United Nations and Human Rights: A Critical Appraisal, Edited by Philip Alston, Clarendon Press, Oxford, 1992, p. 473, and Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on Its Development, Oxford University Press, New York, 1995.

56. Some international-level organizations which work extensively with intergovernmental bodies and the NGOs wishing to address them are: International Service for Human Rights, P.O. Box 16, 1211 Geneva 20, Switzerland, tel: (41 22) 733 5123, fax: (41 22) 733 0826; Centre on Housing Rights and Evictions, 8, rue Gustave Moynier, 2nd Floor, 1202 Geneva, Switzerland, tel/fax: (41 22) 738 8167; NGO Working Group on the Convention on the Rights of the Child, c/o DCI, P.O. Box 88, 1211 Geneva 20, Switzerland, fax: (41 22) 740 1145.

57. Workshop participants pointed out that because treaty bodies do not have punitive power, and they work with states, the language of recommendations is often diplomatic.

58. See box on on CERA.

59. See box SERAC.

60. Many terms are used to describe NGO reports connected with reporting procedures to intergovernmental bodies, including "alternative", "counter", "parallel", and "supplementary". Each term has its own implications. NGOs will need to choose for themselves which term is best suited to their purpose and intentions. "Alternative report" is used in this resource for the sake of simplicity.

61. See chapter 1 and chapter 4.

62. See chapter 5 and Appendix C.

63. The World Bank Group includes the International Bank for Reconstruction and Development (IBRD) which is generally referred to as the World Bank, the International Development Association (IDA), the International Finance Corporation (IFC), the Multilateral Investment Guarantee Agency (MIGA), and the International Centre for Settlement of Investment Disputes (ICSID).

64. Inter-American Development Bank, Asian Development Bank, African Development Bank, North American Development Bank, proposed Bank for Economic Cooperation and Development in the Middle East and North Africa, and European Bank for Reconstruction and Development.

65. See "The World Bank and Human Rights: An Analysis of the Legal Issues and the Record of Achievements," by Ibrahim F.I. Shihata, Vice President and General Counsel, The World Bank, Paper Submitted to the International Third World Legal Studies Association Panel on the World Bank, Development Projects and Human Rights: The Obligations of the Bank, January 8, 1988. Shihata explains:

Details of the Bank's status as a specialized agency of the UN are spelled out in its Relationship Agreement with the UN. This Agreement clearly states that "[t]he Bank is a specialized agency established by agreement among its member governments and having wide international responsibilities, as defined in its Articles of Agreement, in economic and related fields within the meaning of Article 57 of the Charter of the United Nations. By reason of the nature of its international responsibilities and the terms of its Articles of Agreement, the Bank is, and is required to function as, an independent organization (Article 1(2) of the Agreement Between the United Nations and the International Bank for Reconstruction and Development, Nov. 15, 1947, 16 UNTS 346)." (page 6).

66. See The World Bank: Governance and Human Rights (Second edition, revised and updated), Lawyers Committee for Human Rights, New York, 1995. The Lawyers Committee explains that the World Bank explicitly refuses to take "political considerations" into account in its lending decisions. However, in its 1994 report, Governance: The World Bank's Experience, the World Bank is quoted as saying: "Consistent with the Articles, the focus of the Bank's efforts in the area of human rights is on those rights that are economic and social in nature." The Lawyers Committee, however, points out that:

Many observers do not see the Bank's observance of economic and social rights as inevitable. The UN Committee on Economic, Social and Cultural Rights...has stated: "[D]evelopment co-operation activities do not automatically contribute to the promotion of respect for economic, social and cultural rights. Many activities undertaken in the name of 'development' have subsequently been recognized as ill-conceived and even counter-productive in human rights terms." (p. 65)

67. For more information, see The Inspection Panel, Report, August 1, 1994 - July 31, 1996, World Bank. It describes cases which were brought to the panel, its policies for accepting cases, the experience of the panel during the report period, and forms for making claims.

68. Bank Information Center (BIC), 2025 "I" Street, N.W., Suite 400, Washington, D.C. 20006, U.S.A., tel: (1 202) 466 8191; fax: (1 202) 466 8189; E-mail: bicusa@igc.apc.org. BIC is a non-profit, non-governmental organizations that provides information to NGOs around the world on the projects, policies and practices of MDBs. It works to ensure that information gets out of the Banks and into the hands of people working on local, grassroots initiatives. BIC has produced a number of handbooks including A Citizen's Guide to the World Bank's Information Policy, by Lori Udall, Washington, 1994, and A Citizen's Guide to the Multilateral Development Banks and Indigenous Peoples, by Cindy Buhl, Washington, 1995.

69. Lawyers Committee for Human Rights, 330 7th Avenue, 10th Floor, New York, N.Y. 10001, U.S.A., tel: (1 212) 629 6170, fax: (1 212) 967 0916; E-mail: ifi@lchr.org. The Lawyers Committee has a program to consider and analyze some programs and projects of the World Bank primarily as they impact civil and political rights and has published a useful book outlining the structure and activities of the World Bank as they relate to rights, The World Bank: Governance and Human Rights, 2nd Edition, New York, 1995.

 

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