SECTION I. EXECUTIVE SUMMARY
This Report sets out a number of recommendations for UN treaty bodies to incorporate into their nomination and election procedures in order to improve diversity and in particular achieve gender balance among treaty body members.
Improving gender balance within UN treaty bodies is a common goal, promoted by UN regulations and guidelines, which has only been achieved by a few treaty bodies. Members of treaty bodies are still predominantly male and the mechanics for achieving gender balance through the treaty body nomination and election systems are not always clear. This Report draws from gender diversity policies and practices within the private sector where it is widely recognised that not only is it fair and right to reflect society's composition but also that companies with diverse boards that include a closer to equal or equal representation of women, perform better than companies with other less diverse boards.
In the private sector, notably in Europe, the UK and the US, companies have adopted and implemented policies and procedures which are designed to promote female leadership in particular and guarantee a diverse pool of candidates to be considered by shareholders when electing directors to company boards. Companies in some European countries have had to comply with diversity laws which impose a specified quota of women on boards. Many countries also have policies that include encouraging transparency in the election process, making managers responsible for diversity policies and enforcing shorter election terms and staggered boards.
The treaty body system can benefit from the steps taken towards achieving gender balance at the company board level in the private sector. The private sector model can be adapted to the treaty body context during both (i) the State parties' nomination processes and (ii) the treaty body's election process.
At the nomination stage, treaty bodies have the opportunity to propose guidelines for State parties to adopt when selecting candidates for nomination. State parties should select candidates with the relevant experience and expertise, but should also take gender diversity into consideration when selecting candidates for nomination. It is essential that, at the outset of the selection process, State parties are choosing from a diverse pool of candidates. In line with the 'comply or explain' procedure applied in the private sector, State parties who do not provide a diverse and gender-balanced candidate list and do not take into consideration guidelines and recommendations given by the treaty bodies in relation to gender diversity should be prepared to publicly state the basis for their decision, and how and why that decision led to a non-diverse outcome.
At the election stage, when reviewing the merits of each candidate, voting members of the treaty body should also bear in mind the desired objective, which is to reach a diverse and gender-balanced treaty body composition. As such, diversity and gender balance should be set as targets for treaty bodies to achieve by the next election cycle, and each treaty body without a written diversity mandate in its treaty should have a diversity policy in place by that time, which can be shared and implemented by member States.
Treaty bodies should also consider limiting the terms of service of elected members in order to ensure a regular renewal of members. The selection, nomination and election process should be formal, transparent and reported in order to ensure fairness and hold the State parties and electing treaty body members accountable for the reasons behind their candidate selection.
This Report provides a set of realistic and pragmatic recommendations for treaty bodies to consider when developing and improving their diversity policies. The recommendations aim to strengthen the treaty body system by ensuring the election of a diverse and gender-balanced group of experts.
SECTION II. OVERVIEW
1. INTRODUCTION AND SCOPE
This Report has been prepared for the purpose of examining best practices for nominating and selecting individuals across the world to international treaty bodies and private sector governing bodies, with a view to making recommendations which can usefully add to the discussion of strengthening the international treaty body system.
When selecting individuals to governing bodies and leadership positions, both in the private sector and in the international treaty body system, the objective is to select experienced candidates who will contribute to improving the decision-making capacity of the governing body. In her pivotal report on strengthening the international treaty body system, the UN High Commissioner for Human Rights, Navri Pillay, identified "[t]he nomination and election process" for treaty body experts as "a determining factor of paramount importance to the expertise and efficiency of each treaty body";1 'expertise' being a fundamental criterion.
Numerous reports, focusing in particular on the private sector, have established that selecting diverse candidates is a key criterion for governing bodies to ensure that they have the appropriate expertise; companies are more successful and efficient when the members of their boards are more diverse.2 A report developed by McKinsey & Company lists several reasons why more diverse governing bodies perform better, including improved customer orientation, employee satisfaction, better decision-making and innovation and better talent recruitment.3
The case for diversity, and particularly gender balance, is echoed within the treaty body system. Pillay's successor, Zeid Ra'ad Al Hussein said that experts are "prerequisites" for the effectiveness of the treaty body system.4 Good quality experts are needed to fulfil treaty mandates in an evidence-based, efficient, effective, apolitical, and accountable way. This is why State parties must do their utmost to ensure that treaty body nomination processes are "fair, transparent, gender-balanced and competitive", and only elect "the most qualified and best suited candidates" to serve.5 The GQUAL campaign has even argued that State parties have a duty to act affirmatively to ensure gender parity.6
Drawing from best practices across the private sector as well as adding to and developing policies and rules already in place among the treaty bodies, the recommendations developed in this Report provide a basis from which treaty bodies can implement better diversity policies and frameworks and improve their nomination processes in order to strengthen the treaty body system by ensuring the election of a diverse group of experts. This Report recognises that not all practices in the private sector apply in the treaty body context. Therefore, to the extent the 'best practice' would not be applicable, we have excluded it from our recommendations.
When considering diversity, this Report adopts a point of view similar to that in the McKinsey report where diversity includes, among other criteria, inherent forms of diversity (gender, sexual orientation, ethnicity) and acquired forms of diversity (international work experience, education and training, socioeconomic background), as well as further forms of diversity such as age, religious beliefs, geography and skills.7 While this Report is based primarily on analyses which focus on gender balance, the recommendations proposed are intended to apply to a wider, more inclusive scope where diverse committees and diverse groups of elected experts include women and men with different experiences and from different backgrounds.
This Report is structured to best service the thesis that efforts to improve how individuals are nominated and elected to international treaty bodies on a diversity basis may draw useful lessons – where relevant – from best practices in the international public and private sectors for appointing individuals to governing bodies. SECTION III of this Report provides an overview of the current procedures for nominating and electing individuals to key international and regional treaty bodies and reviews the commentary on best practices in this area. SECTION IV then considers policies and regulations within the private sector in the United States of America, Europe and the Rest of the World, providing a list of recommendations and best practices encountered in each area. SECTION V provides a list of recommendations and explains the basis for arriving at each. SECTION VI is a tabular checklist of certain governance provisions as set out in the treaty texts of each of the treaty bodies examined.
4. TREATY BODIES
In preparing this Report, the practices of the following treaty bodies were examined:
- the Human Rights Committee, which monitors the International Covenant on Civil and Political Rights ("ICCPR");
- the Committee which monitors the Convention on the Elimination of Discrimination against Women ("CEDAW");
- the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, which monitors the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families ("CMW");
- the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment ("SPT"), which monitors the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("OPCAT");
- the International Criminal Court ("ICC") constituted under the Rome Statute of the International Criminal Court; the International Criminal Court Assembly ("ICC Assembly") constituted under the Rome Statute of the International Criminal Court;
- the Committee against Torture ("CAT"), which monitors the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
- the Committee on the Rights of Persons with Disabilities, which monitors the Convention on the Rights of Persons with Disabilities ("CRPD");
- the Committee on Economic, Social and Cultural Rights, which monitors the International Covenant on Economic, Social and Cultural Rights ("ICESCR");
- Committee on the Election of Judges to the European Court of Human Rights ("ECtHR"), which recommends candidates to the European Assembly for election;
- the European Committee for the Prevention of Torture, which monitors the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("ECPT");
- the African Commission on Human and Peoples' Rights, and African Court on Human and Peoples' Rights ("ACtHPR"), which together monitor the African Charter on Human and Peoples' Rights ("ACHPR");
- the Committee on the Elimination of Racial Discrimination ("CERD"), which monitors the International Convention on the Elimination of Racial Discrimination ("ICERD");
- the Committee on the Rights of the Child, which monitors the Convention on the Rights of the Child ("CRC");
- the Committee on Enforced Disappearances, which monitors the International Convention for the Protection of all Persons from Enforced Disappearance ("CED"); and
- the Inter-American Commission on Human Rights ("IACHR") and the Inter-American Court of Human Rights ("IACtHR"), which together monitor the inter-American system for the protection of human rights.
1 The authors would like to thank Camille Jetzer, Rosy Worsfold, Zahra Mashhood, Martyn Cukier, and Ryan Harvey for their research and assistance in preparing this Report.
1 Report by U.N. High Comm'r on Human Righs, United Nations Reform: Measures and Proposals, UN Doc. A/66/860, at 74 (June 26, 2012), https://digitallibrary.un.org/record/730152/files/A_66_860-EN.pdf.
2 GQUAL, Achieving Gender Parity on International Judicial and Monitoring Bodies: Analysis of International Human Rights Laws and Standards Relevant to the GQUAL Campaign (IHLRC Working Paper Series No. 4, Oct. 2017); McKinsey & Co., Diversity Matters (2015), https://assets.mckinsey.com/~/media/857F440109AA4D13A54D9C496D86ED58.ashx, (the "McKinsey report").
3 McKinsey report, supra note 3, at 9-14.
4 Office of U.N. High Comm'r for Human Rights, Handbook for Human Rights Treaty Body Members iii (2015), https://www.ohchr.org/Documents/Publications/HR_PUB_15_2_TB%20Handbook_EN.pdf .
6 GQUAL, supra note 3; GQUAL, Article 8 of the Convention to Eliminate All Forms of Discrimination Against Women: A Stepping Stone in Ensuring Gender Parity in International Organisations and Tribunals (2015), http://www.gqualcampaign.org/wp-content/uploads/2015/09/Advocacy-Piece-1.pdf.
7 McKinsey report, supra note 3.
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