By Cesare Romano, Science for Democracy’s co-founder
During the past few months, the international bodies that supervise, among other issues, the implementation of the “right to science” and the “rights of science” have been affected by an unprecedented budgetary crisis that is gripping the United Nations.
The right to enjoy the benefits of scientific and technological progress and its applications (the “right to science”), the right to health, and a set of rights and corresponding duties that concern scientific research and technological development, collectively known as “the rights of science” (e.g. the right to protection of the moral and material interests resulting from inventors’ work, the right to work, the duty States have to encourage scientific research and to facilitate cross-border cooperation) are codified in the Covenant on Economic, Social and Cultural Rights and their implementation is supervised by the Committee on Economic, Social and Cultural Rights. Other “rights of science”, such as freedom of expression, academic freedom, the right to seek and disseminate knowledge, and the right to associate, are codified in the Covenant on Civil and Political Rights and their implementation is supervised by the Human Rights Committee.
The Committee on Economic, Social and Cultural Rights and the Human Rights Committee are two of the ten so-called “Treaty Bodies”, expert bodies that have been established to supervise the implementation of the nine key international human rights treaties. In April 2019, the Chairpersons of all ten UN human rights Treaty Bodies were informed that six of them are very likely to have sessions in 2019 cancelled for financial reasons (and, at the time of this writing, they did), an unprecedented consequence of some member States delaying payments due to the United Nations. This means that reviews of periodic reports by States, as well as consideration of complaints by individual victims of serious human rights violations – not just of the right to science and the rights of science, but also torture, extra-judicial killings, enforced disappearances and many more – will not take place as scheduled. The cancellation of sessions will also have numerous other negative consequences, and will seriously undermine the system of protections which States themselves have put in place over decades. Treaty Bodies are already struggling carrying out these. There is hardly enough time and resources to carry out their tasks. The UN financial crisis is threatening the survival of the UN human rights infrastructure. How did we get to this point?
UN human rights treaty bodies: what are they?
The UN system of protection of human rights is currently composed of nine major multilateral treaties. Two of them, the Covenants, are very broad and are considered, with the Universal Declaration of Human Rights, the centerpieces of the so-called Universal Bill of Rights. The other seven are dedicated to a specific issue (e.g. torture) or a vulnerable group (e.g. persons with disabilities). Each of these treaties is endowed with a body (a Committee) comprising elected independent experts who seek to ensure that States parties fulfil their legal obligations under the given treaty. Currently, the UN has 10 such treaty bodies. They are:
1- The Human Rights Committee (supervising the implementation of the Covenant on Civil and Political Rights);
2- The Committee on Economic, Social and Cultural Rights (supervising the implementation of the Covenant on Economic, Social and Cultural Rights);
3- The Committee on the Elimination of Racial Discrimination (supervising the implementation of the Convention on the Elimination of Racial Discrimination);
4- The Committee against Torture (supervising the implementation of the Convention against Torture);
5- The Subcommittee on Prevention of Torture (part of the regime established by the Convention against Torture);
6- The Committee on Migrant Workers (supervising the implementation of the Convention on Migrant Workers);
7- The Committee on Enforced Disappearances (supervising the implementation of the Convention on Enforced Disappearances);
8- The Committee on the Elimination of Discrimination Against Women (supervising the implementation of the Convention on the Elimination of Discrimination against Women);
9- The Committee on the Rights of the Child (supervising the implementation of the Convention on the Rights of the Child);
10- The Committee on the Rights of Persons with Disabilities (supervising the implementation of the Convention on the Rights of Persons with Disabilities).
In essence, the UN human rights treaty bodies carry out three essential functions:
1- Review of Periodic Reports: They review the reports that each state that has ratified one or more of these treaties must present periodically (usually every 5 years). These periodic reports detail what the state in question has done to discharge its obligations under the given treaty during the reporting period. Over the span of several months, the body engages the state in a discussion over its performance. Crucially, civil society (i.e. NGOs, national, foreign and international) is given the possibility to participate through the submission of “Parallel Reports”. The outcome of the review process is a document in which the treaty body recommends the state to take a series of steps to improve its compliance with the given treaty.
2. Consider Individual Complaints: Most of these treaty bodies can also receive complaints (“communications” in UN Human rights jargon) from individuals alleging violation of their rights under one of these treaties by a state that has ratified it. This is a quasi-judicial function. It is called “quasi-judicial” because it is similar in process to the way in which courts operate, but it is different in the sense that the outcome is not a binding order, but “views”, that is to say, a non-binding recommendation to the state in question about steps to be taken to remedy the violation the treaty body has identified.
3. Clarify the Scope of Obligations: Almost all of these treaty bodies issue “General Comments”. General comments add detail to the barebones provisions of these treaties, helping states to better understandwhat the obligations contained in them exactly entail. They are regarded as “authoritative interpretations” of these treaties.
All Treaty Bodies are composed of “Independent Experts”, persons with particular knowledge in the field of the given treaty, who serve for variable periods (about 4-year, renewable, terms). The composition of each treaty body as a whole represents the whole of the United Nations according to the principle of “equitable geographical” representation (hence in a committee of 18 persons, there will be, for instance, 4 from Africa, 4 from the “Western Europe and Other Countries” group, 3 from the “Latin America and Caribbean” group etc.). Crucially, all members of these committees work part-time (meeting about three times a year for “sessions of 4-5 weeks each”) and do not receive a salary, nor a pension, neither from the United Nations nor from their countries, but only reimbursement for their expenses to participate in the sessions. They are not employees of the UN, as far as compensation is concerned.
The work of all treaty bodies is supported by the staff of the United Nations, and, in particular, by the Office of the High Commissioner for Human Rights, which is headquartered in Geneva.
The UN budget
The work of the United Nations is funded by member States. The UN General Assembly approves the UN regular budget every two years. The UN has two main budgets: The Regular Budget, which is used to fund all UN activities with the exception of peacekeeping operations, and the Budget for Peace-Keeping Operations. All member States are assessed a portion of both budgets, according to their “capacity to pay”. The size and strength of each national economy is taken into consideration. The highest contributing member (the United States) pays 22% of the total while the smallest state pays 0.001%.
According to the report entitled “Financial Situation of the United Nations” delivered by Jan Beagle, Under-Secretary-General Management Strategy, Policy and Compliance, to the Fifth Committee of the UN General Assembly, on 7 May 2019, in 2019, the total assessed contributions to the regular budget were $2.85 billion ($362 million more than 2018). However, payments received by 30 April 2019 totaled only $1.7 billion. Unpaid assessed contributions as of 30 April 2019 amounted to $1.7 billion, higher than the previous year by $146 million. By the end of 2018, 152 member States had paid their regular budget assessments in full. That is only 152 out of 193 members in total, but also seven more than at the end of 2017. As of 30 April 2019, only 89 Member States had paid their assessments to the regular budget in full, one more than at the same date last year, but not enough to avert a financial crisis. The United States, which is the main contributor to the UN, is also the one with the largest unpaid bill: $1.055 billion. It is followed by Brazil ($143 million), Japan ($136 million) and Argentina ($52 million). All other non-paying members combined owe the organization $186 million.
Throughout its history, the UN has always had some members delaying payment of their assessed contributions. Some were withholding payments for political reasons, signaling disagreement with the organization on this or that issue, others because were short of funds due to domestic financial crises. The UN managed to continue operating by managing its cash flow, and, occasionally, by last minute payments by the major contributors. However, over the past few years, the regular budget has been facing severe liquidity issues, with cash deficits occurring earlier in the year, becoming larger, and lingering for longer periods. To get an idea of how bad the financial crisis has become, last June, Secretary General Antonio Guterres told member States that he considered selling the Secretary General’s residence in midtown Manhattan, a four-story townhouse with a garden overlooking the East River, located in the posh Sutton neighborhood, and estimated to be worth tens of millions of dollars. Of course, he found out that he could not sell it because he does not have the authority to sell it under UN agreements with the United States, the host government of the United Nations NY headquarters.
At the end of October 2018, the regular budget cash deficit reached its highest at $488 million, following shortfalls starting as early as the end of May. In October, the reserves of $353 million (that is $150 million from the Working Capital Fund, and $203 million from the Special Account) had been completely exhausted. The deficit, taking into account these reserves, was $135 million. This was covered by borrowing from the accounts of closed peacekeeping operations. As of this writing, the crisis has no solution in sight.
The funding of the UN human rights system
Although human rights are recognized as one of the three pillars of the UN system, the proportion of the budget earmarked for them is less than 8%. Even when that 8% is paid in full, it is not enough. Only about 40% of the income of the OHCHR comes from the United Nations’ regular budget ($125.5 million) The rest ($188 million) is extra-budgetary, made of voluntary contributions from member States and other donors (e.g., international organizations, the EU Commission, UN partners).
The Office of the High Commissioner for Human Rights, the bureaucracy that supports the work not only of the treaty bodies, but all human rights work in the UN, budgets according to certain need-based formulas. This involves staff positions, physical infrastructure, travel, consultancies, services etc. The overall budgetary UN crisis triggered an across-the-board internal freeze on use of 25-37% of the budget for 2019. The OHCHR decided not to cut any staff position. That is rational if the crisis is considered to be a temporary one. It focused rather on cuts in travel and Daily Subsistence Allowance (DSA, a consultancy-related per diem), which made the treaty bodies, whose budget includes a significant component of travel and per diem (the experts themselves being unpaid and based outside Geneva most of the year), particularly vulnerable.
This may happen again next year, and the problem remains that the tenuous nature of the work of the treaty bodies (part time, not pegged to any rigid performance indicia, unremunerated) make it an easy target for cuts, despite the fact that there is earmarked budget for the treaty bodies.
The current crisis threatening the essential work UN human rights Treaty Bodies carry out is due, first, to the overall UN financial crisis. The main culprit of that is the United States. One can also argue that the current US administration is setting a dangerous precedent, not incentivizing other members to pay their dues, too. The second problem is the tenuous basis of the funding of the overall UN human rights system. Although the fact that it is funded in significant part by voluntary contributions insulates it, somehow, from the crisis affecting the regular UN budget, it still makes it difficult to give the system of human rights protection the solid funding it requires to be as entrenched as it should. This is one of the reasons why treaty bodies are staffed by part-time experts, and not professional full-time employees (like the judges of the International Court of Justice, and the Yugoslav and Rwanda Tribunals are). When funds get tight, the first cuts are variable expenditures, leading to the reduction of the number and frequencies of sessions of Treaty Bodies, worsening the backlog of individual communications and state reports they already have.