Monitoring the Monitors

By Piero A. Tozzi, J.D. | March 6, 2013

As reported in last week’s Friday Fax, Alliance Defending Freedom took the floor recently at a General Assembly forum on how to reform United Nations Treaty Bodies, calling on the Treaty Bodies not to usurp functions that do not rightfully belong to them.

These treaty monitoring bodies, also called “Compliance Committees,” are generally empowered to receive reports from States Parties on how States are meeting their obligations under a particular treaty, such as the Convention on the Rights of the Child or the International Covenant on Civil and Political Rights.

They are pointedly NOT empowered to rewrite the language of treaties or impose obligations on sovereign States Parties that they never agreed to.  Yet that is often what they do, for example seeking to advance abortion “rights” in treaties that are silent on the subject or implicitly protect the unborn.

Such ultra vires actions undermine the rule of law and ultimately harm the international system.  ADF attorney Sofia Martinez specifically flagged the following bad acts by the treaty bodies:

  1. The criticism of specific laws of countries, undermining the sovereign prerogative of countries to enact and preserve legislation that is not altered by anything written within the four corners of the treaty documents.  This can be seen in particular with regard to abortion; there is not one single global United Nations treaty that contains a so-called “right to abortion,” yet treaty bodies act as if there is such a right, unwarrantedly pressuring countries to change policies protecting unborn life.
  2. Comprehensive general comments that pretend to authoritatively commit state parties to a particular interpretation of the treaties, essentially attempting to rewrite treaties or add terms to them which were never agreed upon by the States Parties that negotiated, signed and ratified such treaties.
  3. The confusing term given to the treaty body member’s views as “jurisprudence”. This term in several common law and civil law countries means binding legal precedent. Treaty body recommendations are clearly not binding.  Also to be avoided are any words implying adjudication (such as “sentence” or “decision”) when referring to “Views” under optional protocols.

Interventions such as this one made by Alliance Defending Freedom and its civil society allies are important because they check the tendency of unelected and unaccountable “experts” who sit on treaty monitoring bodies to fabricate “soft law” norms out of whole cloth and impose their ideological predilections upon sovereign nations.  They also help restore a proper understanding of international law.

Other recent interventions by Alliance Defending Freedom include one highlighting the role “traditional values,” properly understood, play in fostering respect for true human rights and dignity; another to the Committee for the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) correcting erroneous interpretations of international law asserting that “access to justice” requires abortion decriminalization; and one to the Commission on the Status of Women pointing out that sex-selective abortion ranks among the most extreme forms of violence against women in many parts of the world.

As that report concluded, “Without a secure right to life, all other rights are illusory” – a self-evident truth, and one which the monitors of “human rights” would do well to take to heart.

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