Who watches the watchmen and do they need watching?

University essay from Lunds universitet/Juridiska institutionen

Abstract: This thesis examines the independence of the UN treaty bodies, both in its entirety and the autonomy of the individual treaty body members. Since independence is very difficult to measure empirically, this paper uses the theoretical framework of Principal-Trustee theory as a tool by which the independence can be understood. This instrument allows us to examine the independence of the treaty body system by looking at what possibilities the state parties have to influence their behavior. The UN treaty body system is explained in detail, including its purpose and how it has developed over the years. All the various ways the committees have to monitor the human rights situation in the state parties are also described. This section also includes a discussion on the apparent paradox that states are voluntarily giving up part of their sovereignty to cooperate with a system whose main task is to criticize them. The independence of the treaty bodies is examined by the application of Principal-Trustee theory. This theory is therefore explained thoroughly, including its development from the broader type of agent theory that preceded it. The theory posits that a Principal in order to gain legitimacy creates a new entity to which it delegates power. This is called the trustee. In the context of this thesis the Principal consists of the state parties to the human rights conventions since it was the states that created the monitoring bodies, and still control the budget and appointment processes, while the treaty bodies make up the Trustee. The theory explains that there are four main ways for the principal to sanction the trustee in order to influence its behavior. These are A) to fire the trustee, B) to refuse to re-appoint her, C)to re-write the delegation contract and D) to change the budget the trustee is dependent of. These four ways of sanctioning are applied to the legal and institutional framework of the treaty bodies in order to determine their independence. While it is hard to fire a treaty body expert, they are subject to re-election after fairly short terms of mandate. In order to re-write the delegation contract the states need to amend the original treaties, a very difficult process but the states do have the power to change the budget. Taken together these factors point towards the treaty bodies being fairly independent. This is also the conclusion given when comparing the treaty bodies with some other actors whose independence has been threatened recently; UN civil servants, Special Procedures and International Judges. This descriptive analysis is followed by a normative discussion on how independent the treaty bodies ought to be. In the context of the strengthening process a Code of Conduct has been proposed that would make the experts accountable to the member states. Even though there might be some gains of legitimacy it is the opinion of this author that the system would function better without it.

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