Módulo de Young en EPS de 20 kg/m3

Apart from the issues raised so far in this section, what has been missing in the New Zealand domestic framework is an effective way of considering and then implementing UN treaty body feedback in the form of Concluding Observations. The growing domestic human rights architecture in New Zealand has been influenced by UN comment through the cyclical reporting process for the core treaties. The Concluding Observations give a historical picture over time about the UN‘s views on New Zealand‘s compliance or not with human rights obligations and help States Parties to prepare future reports. It is expected that national parliaments and relevant government departments will debate and assess Concluding Observations to ensure greater compliance. The UN recommends that they are disseminated widely among all levels of society, especially the judiciary and state officials. It is also expected that domestic courts consider ratified international human rights instruments, such as the two major covenants, as interpretive aids to domestic law. Michael O‘Flaherty has endorsed their importance:

Arguably, the issuance of concluding observations is the single most important activity of human rights treaty bodies. It provides an opportunity for the delivery of an authoritative overview of the state of human rights in a country and for the delivery of forms of advice which can stimulate systemic improvements. … Despite their relatively recent emergence in treaty body practice [1980s onwards], Concluding Observations have been elevated to be the primary record of the finding and recommendations regarding each State Party under review (O‘Flaherty, 2006: 1, 51).

109 For a useful similar discussion on how the structure and processes of government could help the state sector take a rights-based approach to social policy see Geiringer and Palmer (2007: 31-34). Their focus is, however, on analysing whether cabinet decision-making/legislative/judicial processes have a systemic bias against economic and social rights and not on the area raised in this

He also pointed out when clarifying the legal status of Concluding Observations that as they are ‗advisory rather than binding texts‘ they are not legally binding on states (O‘Flaherty, 2006: 32). However, O‘Flaherty believed they do have ‗special status‘, quoting the views of a former UN Human Rights Committee member, Martin Scheinin:

The treaty obligations themselves are, naturally, legally binding, and the international expert body established by the treaty is the most authoritative interpreter of the treaty in question. Therefore, a finding of a violation by a UN human rights treaty body may be understood as an indication of the state party being under a legal obligation to remedy the situation (O‘Flaherty, 2006: 34).

O‘Flaherty made the point that the ‗process of dialogue‘ surrounding the Concluding Observations is ‗notable for its non-adversarial nature‘ and went on to say that:

To confer a compulsive quality to the subsequent findings by the treaty body would be inconsistent with this model and is likely to meet with resistance from States and further unwillingness to participate in the reporting process (O‘Flaherty, 2006: 36).

Concluding Observations are therefore a fairly non-threatening way of treaty body committees giving feedback to ratifying states, and because of the ongoing five-yearly periodic reports they have over time come to form (as O‘Flaherty stated) a kind of dialogue or conversation between the UN treaty body committees and each of these states.

The following two sub-sections outline: a German response to taking Concluding Observations seriously in the form of expert meetings; and an HRC initiative related to CERD that could act as a useful model for dealing with the problem.

5.6.1 The German response: expert meetings

Each country deals with Concluding Observations in different ways. The equivalent of the HRC in Germany (the German Institute for Human Rights) holds expert meetings on the observations to help ministry officials, NGOs, parliamentarians and academics decide how to implement the recommendations in them. The meetings have the added effect of being educational as each of the representatives from these groups is able to hear different perspectives from other experts. It is also helpful to have cross-treaty issues dealt with at once. For example, two or three UN treaty body committees may make a similar comment on an issue in their Concluding Observations and a coordinated vs fractured response can be resolved at a joint experts meeting. The expert meetings idea is presented by the Institute as ‗a tool of treaty implementation to the

international human rights community‘ (Seidensticker, 2005: 5).

As noted by Seidensticker the examination of state reports has several purposes:

external monitoring; preventive aspect; common, targeted goal setting by the treaty body and the state party; and self-evaluation by the state concerning the progressive realisation of the rights contained in the treaty (Seidensticker, 2005: 8). Combining the UN system with a national expert meeting model allows for ‗ongoing dialogue between governments and treaty bodies at the international level and the human rights community at the national level‘ (Seidensticker, 2005: 12). This Concluding Observations expert meetings idea perhaps parallels that of the USA Interagency Working Group on Human Rights. Any such group – whether it is working on a large-scale (about the overall human rights system in a country) or on a micro large-scale (about taking into account Concluding Observation comments) – is broadly operating in the area of more effective implementation and many of the processes at the macro and micro levels could perhaps be the same and streamlined.

5.6.2 A New Zealand model: Implementation Monitoring Table

An excellent 2009 New Zealand solution to Concluding Observation implementation tackles this problem in such a way that it could be a very useful model across treaties. It is such a clear idea that it could be used not only in this country but in other jurisdictions. Joris de Bres, the Race Relations Commissioner at the HRC, has developed a CERD Implementation Monitoring Table, where the Concluding Observations from the last periodic report are set out on a covering front page, followed by a table in the form below.

The table can be updated on a regular basis, and this means that by the time the next report is due all points have been noted and, if necessary, progressively implemented. If such a system were developed for all the core treaties, inter-departmental coordination on human rights would naturally increase as this idea requires that departments responsible for each covenant participate. A possible problem, however, is that such a system would need to ensure against paperwork proliferation and a tick-box mentality.

This idea would also address the problem raised in the general discussion at the NZ Diversity Forum 09 that Concluding Observations tend to go on the shelf until just before the next reporting round for a treaty and then there is an urgent message sent out from MFAT to departments asking what have they done to fulfil or implement the

recommendations. It was noted during the general discussion at the forum that there is a lack of consistency about how reports are prepared and recommendations followed up.

C. CERD RECOMMENDATIONS AND NEW ZEALAND GOVERNMENT RESPONSE

Chief Commissioner Rosslyn Noonan had also pointed out at the NZ Diversity Forum 09 that there is a need to start to identify key indicators (most of which already exist) to track standards implemented so there is no regression over time on issues, and this table model would also be useful in monitoring these indicators (Noonan, 2009).