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March 24, 2010

NGOs Use UN Treaty Reporting Processes to Promote Global Governance

 On March 22, 2010, the Human Rights Committee Country Report Task Force for Poland met to determine the questions that will constitute the principal focus of the dialogue with the representatives of Poland at its upcoming Human Rights Committee hearing in October.

The Human Rights Committee (HRC) is a body of 18 independent experts that is charged with monitoring the implementation of the International Covenant on Civil and Political Rights (the "ICCPR") by its States parties. It does so by convening meetings at which representatives of each State party to the ICCPR are required to answer questions posed by the HRC regarding the State party's implementation of the ICCPR. Prior to each country meeting, the HRC appoints a country report task force to conduct preliminary inquiries and compile reports relating to the upcoming HRC meeting. According to its stated aim, the Committee uses the task force meetings "to improve the efficiency of the system and to ease the task of States' representatives by facilitating more focused preparations for the discussion." Over time, the mission of the various country task forces has moved from one solely concerned with the efficiency of the treaty reporting system to one that is equally concerned with collaborating with various non-governmental organizations to i) investigate State party conduct, ii) organize civil society organizations to provide evidence of State party shortcomings, and iii) produce so-called "shadow reports" that are critical.

The Country Report Task Forces operate under the following published schedule:

First, the country rapporteur presents the draft list of issues for discussion to the Country Report Task Force. Once the members have made their observations, the list of issues is adopted by the Task Force as a whole. The Task Force then allocates to each of its members principal responsibility for a certain number of questions included in the list of issues, based in part on the areas of particular expertise or interest of the member concerned. Once the list of issues is adopted and edited, it is transmitted to the State party. Since 1999 the lists of issues has been adopted at the session prior to the examination of the State report, thereby allowing a period of two to four months for States parties to prepare for the discussion with the Committee.

In preparation for the Country Report Task Force, the secretariat places at the disposal of its members a country analysis as well as all pertinent documents containing information relevant to each of the reports to be examined. For this purpose, the Committee invites all concerned individuals, bodies and non-governmental organizations to submit relevant and appropriate documentation to the secretariat (emphasis added).

To prepare the list of issues for Poland's October hearing, the Task Force for Poland considered reports from Amnesty International and several other non-governmental organizations. Included in this list was the same group of women's rights organizations composed of the Federation for Women and Family Planning, Campaign against Homophobia, and the Women's Rights Centre (the WRO's), that submitted a shadow report criticizing Poland in advance of Poland's November 6, 2009 review by the Committee on Economic, Social and Cultural Rights.

As was the case in November, the WRO's HRC report focused heavily on Poland's restrictive laws concerning sexual rights. Among its many criticisms in this regard are:

· The Polish state has failed to take into account and implement the Concluding Observation of the HRC from 2004 on the issue of medical personnel who choose not to involve themselves in abortion services through Poland's conscience clause law (attempting to undermine Article 39 of the Act of 5 December 1996 on the medical profession which says that "the doctor may abstain from accomplishing medical services discordant with his/her conscience, (...) nevertheless s/he is obliged to indicate real possibilities of obtaining the service from another doctor, or in another medical institution and justify his/her decision and mention about the refusal in the medical documentation.");

· The Polish state has failed to take into account and implement the Concluding Observations of all UN Treaty Monitoring Bodies including the HRC from 2004 which recommended the government to "assure the availability of contraceptives and free access to family planning services and methods;"

· The Polish state has failed to take into account and implement the the Concluding Observations of all UN Treaty Monitoring Bodies including the HRC from 2004, on the issue of sexuality education;

· The draft Polish Act on Equality, in accordance with the recommendations of the Beijing Platform, was prepared by a group of independent experts in 1997 thanks to the initiative of non-governmental organizations. Since then it has been modified and presented in the Parliament several times, yet it has not been supported enough or adopted (emphasis added).

Despite the fact that implementation of such UN Treaty Monitoring Body Observations or laws proposed by groups of independent experts would severely undermine the wishes of the Polish people and the organic democratic process, if history is any guide, the Country Report Task Force for Poland will contain a list of issues and request for responses that includes most, if not all, of the above-criticisms.

To illustrate, in preparation for Ireland's July 14, 2008 Human Rights Committee hearing, the Country Report Task Force for Ireland considered a report from a group of Irish non-governmental organizations, including FLAC (Free Legal Advice Centres), the Irish Council for Civil Liberties, and the Irish Penal Reform Trust. Contained within the report were several specific recommendations that the group asked to be included in the official list submitted to Ireland. Included in the list were:

1. We encourage the Committee to ask the State when it is likely to withdraw its reservations [to the International Covenant on Civil and Political Rights] and if it does not intend to do so, to seek the rationale from the State;

2. Since no measures have been taken to incorporate the International Covenant on Civil and Political Rights into national law, we request that the Committee to discuss this issue with the State;

3. We encourage the Committee to ask the State to account for its failure to provide for a modern legislative framework for the provision of safe and legal abortion in Ireland.

As if on cue, the official list of issues eventually generated by the Country Report Task Force for Ireland contained the following:

1. Please indicate whether new factors have emerged since the submission of the third periodic report that would enable Ireland to envisage a withdrawal of its reservations to article 10 paragraph 2, article 14, article 19, paragraph 2, and article 20, paragraph 1;

2. Please indicate whether the State party intends to incorporate the Covenant into its domestic legislation (previous concluding observations of the Human Rights Committee). Please also indicate if there have been any cases in which the Covenant has been applied or used as an aid to interpret domestic law by the courts;

3. Please indicate what measures have been taken following the referendum on abortion. Please also provide information on the steps taken to make sure that women are not compelled to continue pregnancies where these are incompatible with obligations arising under article 6 of the Covenant and the Committee's general comment No. 28 (2000) on article 3 (The equality of rights between men and women).

This example of Ireland clearly reflects the significant influence that non-governmental organizations promoting an expansive human rights global governance agenda have on the Human Rights Committee and its Country Report Task Forces. Unfortunately, this influence is rarely, if ever, counterbalanced by reports from in-country civil society organizations or external NGOs who present a balanced picture of the condition of civil and political rights and who respect national sovereignty and democratic processes. The Government of Poland should continue its recent efforts to defend its domestic legislative process against intrusive inquiries from NGOs and the UN human rights treaty bodies and resist the temptation to adopt demands that have not been considered through the democratic process. Meanwhile, those organizations and individuals who are concerned about Poland's national sovereignty should become engaged in the HRC reporting process and offer their more balanced observations to Poland's representatives who will be presenting at the October HRC hearing.