It Takes Three to Tango - How Seriously are Late and Non-Reporting States Taking the Committee Against Torture?

(c)Pawel Radomski

Yesterday and today the Committee Against Torture (CAT) is examining Seychelles with the state delegation present via video conference. It is the first time in CAT’s history that a state party is being reviewed remotely, a solution responding to states’ time and resource constraints in engaging with human rights treaty bodies. With a 25-year delay, the CAT received the state report making count for the country’s obligations under the Convention last Tuesday, 24th of July, only six days before the review. This left little time for the CAT and NGOs to consider its content and influenced the quality of the examination.

Seychelles was scheduled as a non-reporting State on the agenda of the 64th CAT session (23 July – 10 August 2018). The CAT had on repeated occasions reminded the Seychelles of its reporting obligations and had offered the possibility to submit its initial report under the simplified reporting procedure. This means that the country can answer the questions of a List of Issues Prior to Reporting (LOIPR) adopted by the CAT instead of covering all substantive Articles of the treaty, including information on the state’s constitutional and legal framework that is not provided in the core document. However, the CAT never received an answer from Seychelles and it was only on the 23rd of July that the state delegation’s participation was confirmed. This posed serious problems to the full and due participation of civil society and the National Human Rights Commission of Seychelles in the procedure. These stakeholders normally take on an important role in presenting alternative reports to the state’s information. It was noticeable during the review today and yesterday that the Committee members had to base themselves on scarce information that was submitted to them piecemeal from civil society and the media.

The review by the CAT is supposed to provide a platform for a constructive dialogue between the Committee and the state party on its anti-torture track record. This becomes a difficult task when one of the parties is submitting information with important delays or even is missing – it takes two to tango. Or rather, it takes three to tango – the CAT is triangulating information from the state report, UN sources and alternative reports from civil society and national human rights institutions.

Late and Non-reporting States

Seychelles ratified the Convention Against Torture and other Cruel and Inhuman or Degrading Treatment or Punishment in 1992 and thus committed to submit reports on the implementation of the Convention according to Article 19(1). An initial report shall be submitted within one year after the entry into force of the Convention and after that, periodic reports shall be presented to the CAT every four years. Despite the fact that Seychelles’ initial report was due in 1993, the country only submitted a report to the CAT last Tuesday.

Prior to this CAT-review, Seychelles formed part of the group of non-reporting states; states that never submitted a report to the CAT despite ratifying the Convention. Out of the 164 State parties to the Convention against Torture, 25 are non-reporting states. The countries with the longest delays are Somalia with 27 years, Cape Verde with 25 years and Antigua and Barbuda with 24 years – the latter two were examined in the absence of a report in 2017.

Another country that OMCT follows closely and who is worth mentioning in this context is Bangladesh. The CAT has been waiting for its State report for 19 years and in December last year, it offered the government of Bangladesh to submit its initial report under the simplified reporting procedure. Unfortunately, the government of Bangladesh has not responded to the CAT and may, therefore, be scheduled for review in 2019/2020.

Compared to the other core UN human rights treaties, the CAT has one of the worst credentials on non-reporting, together with the Committee on Economic, Social and Cultural Rights counting 26 non-reporting states and the Committee on the Rights of Persons with Disabilities with 53 non-reporting states. The other category of states reluctant to engage with the treaty bodies are the ones that have overdue reports; 43 states are not complying with the CAT’s deadlines and the other treaty bodies show similar examples.

To lighten up this somewhat dark picture, last year, Afghanistan submitted its second periodic report to the CAT after a 20 years delay and ratified the Optional Protocol to the Convention against Torture in April this year. The Philippines seem to have taken up the reporting pace after a gap of 16 years between its first and second CAT-review; for the third examination, the report was submitted only one year late. In addition, Ivory Coast has after 21 years committed to the CAT to submit its initial report under the simplified reporting process. A LOIPR was adopted by the CAT in December 2016 and the Ivory Coast will now have to submit its report on the basis of the LOIPR. Niger was also offered the simplified reporting procedure and the country proceeded by submitting its initial report on the 7th of June 2018, with a 19 years delay.

Review in the Absence of State Engagement – an Important Tool for Human Rights Treaty Bodies

Faced with the late and non-reporting phenomenon, CAT has the possibility to review states in the absence of a state report, according to the Committee’s rules of procedure (rule 67 para. 3). Despite the absence of a state report and/or delegation, the examination is not void of meaning or substance. The review is a useful tool to further rights protection, using the Committee’s concluding observations as a springboard.

The other UN Treaty Bodies that according to their mandate review state reports have in their rules of procedures or working methods also addressed the problem of late and non-reporting, enabling them to consider state parties in the absence of a state report (The Committee on the Elimination of Discrimination of Women specifies it would only do so as a measure of last resort). The Committee on the Rights of Persons with Disabilities even provides under Article 36.2 of its Convention, the possibility of a review in the absence of a report. The Human Rights Committee schedules one non-reporting State per session and this practice since this year is not only restricted to initial reports but also to periodic reports that are more than 10 years overdue.

In May 2013, the Chairs of the UN human rights bodies, concerned by this issue, included the lack of reporting compliance, as a standing item on the agenda of their annual meetings. There is also a user-friendly UN website making account of the status of late and non-reporting states, increasing the transparency and the possibility to monitor the situation.[1]

High-qualitative and Timely Reporting Key for a Successful Human Rights Tango

The fact that states do not report or report with delays can mirror their lack of political will to comply with the obligations under the human rights treaties. It can also be an effect of mere lack of institutional capacity. While submitting reports timely is important, the quality of the reports is arguably even more so. With high-qualitative, detailed reports, the CAT can do a diligent review providing precise and concrete recommendations on how to comprehensively fight torture.

What is interesting to point out in the context of late and non-reporting to the CAT, is that there is a higher probability for a state to submit a report when neighboring states are punctual in their reporting - peer pressure is effective.[2]

Putting state parties up for review even in the absence of the submission of a state report has proven, like in the case of the Seychelles, to be an efficient tool to make states engage with the CAT - after all who would like to be scrutinized by a UN body without having your say in the process?

To conclude, both qualitative and timely reporting is key for the human rights architecture to work effectively – this goes both for states and civil society. No state is in perfect compliance with all human rights obligations, and the periodic reporting procedure is an important part of the human rights tango.

Ylva L. Hartmann

OMCT Human Rights Adviser

[1] https://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/LateReporting.aspx

[2] https://scholar.harvard.edu/files/cosettecreamer/files/02_37.3creamer.pdf