Hr indicators for assesing state compliance de beco 2008

Nordic Journal of International Law 77 (2008) 23–49

www.brill.nl/nord

Human Rights Indicators for Assessing State Compliance with International Human Rights Gauthier de Beco* Ph.D. Candidate, Université catholique de Louvain (Belgium)

Abstract This article discusses human rights indicators for assessing state compliance with international human rights. It analyses the use of human rights indicators before treaty bodies, how human rights aspects are to be integrated into these indicators and what conceptual framework must be developed for their establishment. The article also examines the different kinds of data required for human rights indicators, the way in which indicators relating to both civil and political and economic, social and cultural rights could be developed as well as the types of human rights indicators that could be used. The article concludes with how to make human rights indicators a useful instrument for monitoring state compliance with international human rights.

Keywords International human rights; human rights indicators; compliance; states

1. Introduction Ever since the proclamation of the Universal Declaration of Human Rights, human rights have been recognised through various international legal instruments. In order to achieve compliance with human rights, however, it is not enough to just devise, clarify or expand the norms that protect those rights, however essential that might be. Human rights treaties also need states to establish mechanisms for the implementation of human rights so that these treaties can function. One of these mechanisms consists of developing human rights indicators for assessing state compliance with international human rights.

The study of human rights indicators requires more than just an analysis of the indicators capable of measuring human rights. Human rights indicators do not operate in a vacuum, but are part of a larger enterprise aiming to implement international human rights. In order to understand how human rights indicators can assist in achieving this goal, consideration should be given not only to the *) Gauthier de Beco has a law degree from the Katholieke Universiteit Leuven (Belgium) and a Master of Laws (LL.M.) from the University of Nottingham (United Kingdom). He is also a consultant for the OHCHR in its work on human rights indicators. The views expressed in this article are exclusively those of the author. © Koninklijke Brill NV, Leiden, 2008

DOI 10.1163/090273508X290681

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nature of the different indicators, the data on which they rely and the rights they aim to measure, but also to the context in which these indicators operate and the framework wherein they should be established. The purpose of this article, therefore, is not only to analyse how indicators for evaluating state compliance with international human rights could be developed, but also to contribute to the debate on the conceptual foundations of this recent instrument, while using concrete examples to illustrate some of the arguments.

Before starting the study of human rights indicators, the term human rights indicator has to be defined. Although no definition for this term has been unanimously agreed upon to date, several authors have come up with scarcely divergent definitions. While for Maria Green “[a] human rights indicator is a piece of information used in measuring the extent to which a legal right is being fulfilled or enjoyed in a given situation”,1 for the United Nations (UN) Office of the High Commissioner for Human Rights (OHCHR) “human rights indicators are specific information on the state of an event, activity or an outcome that can be related to human rights norms and standards; that address and reflect the human rights concerns and principles; and that are used to assess and monitor promotion and protection of human rights”.2 For Paul Hunt, the UN Rapporteur on the right to health, an indicator relating to the right to health “derives from, reflects and is designed to monitor the realisation, or otherwise, of specific right to health norms, usually with a view to holding a duty bearer to account”; it is, thus, characterised by “(i) its explicit derivation from specific right to health norms; and (ii) the purpose to which it is put, namely right to health monitoring with a view to holding duty-bearers to account”.3 In this article, the term ‘human rights indicators’ will be understood as indicators that are linked to human rights treaty standards, and that measure the extent to which duty-bearers are fulfilling their obligations and rights-holders enjoying their rights.

This article is divided into four parts. The second part examines the use of human rights indicators before treaty bodies and the human rights aspects to be integrated into these indicators. The third part analyses the conceptual framework to be established for their development. The fourth part discusses the various

1) M. Green, ‘What We Talk About When We Talk About Indicators: Current Approaches to Human Rights Assessment’, 23 Human Rights Quarterly (2001) p. 1065.

2) OHCHR, Report on Indicators for Monitoring Compliance with International Human Rights Instruments, (Report presented at the 18th meeting of chairpersons of the human rights treaty bodies and the 5th inter-committee of the human rights treaty bodies) 2006, HRI/MC/2006/7, para. 7 (OHCHR Report). See also R. Malhotra and N. Fasel, ‘Indicators for Monitoring the Implementation of Human Rights – A Conceptual Framework’, (Background paper prepared for the OHCHR expert consultation on indicators for monitoring compliance with international human rights instruments, Geneva, 29 August 2005) [unpublished], on file with the authors.

3) P. Hunt, Interim Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, 2003, A/58/427, para. 10.

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human rights-related data necessary for use by human rights indicators, indicators relating to both civil and political and economic and social and cultural rights, as well as the existing types of human rights indicators. The fifth and last part analyses benchmarks. The article concludes by how to make human rights indicators a useful instrument for assessing state compliance with international human rights.

2. Indicators and International Human Rights Human rights indicators have a short history. Recently, treaty bodies requested that states develop human rights indicators in order to monitor their compliance with human rights treaties. These indicators incorporate human rights aspects, holding in so doing states accountable for their human rights obligations. As will be seen in this part, their characteristics differentiate them from other kinds of indicators and enable them to detect the human rights violations of states.

2.1. Monitoring Compliance with Human Rights Treaties Indicators exist for some time now. They have been developed over the last two centuries. Indicators were first used in the labour context in the 19th century and later the economic context during the first half of the 20th century.4 The 1970s saw a new interest appear for social indicators in the United States, while the use of development indicators grew in the UN during the 1990s. Human rights indicators, however, are a more recent invention. Since the end of the 1990s, human rights indicators have been developed in order to secure state accountability for human rights obligations. Treaty bodies, the Committee on Economic, Social and Cultural Rights in particular, and the Committee on the Rights of the Child to a lesser extent, invited states to develop indicators in order to monitor their compliance with human rights treaties in the treaty body reporting process.5 They also recommended the establishment of benchmarks, the progress towards

4)

W. Clifford and C. Rixford, ‘Lessons Learned from the History of Social Indicators’, (Redefining Progress Publication, Los Angeles, 1998).

5) See Committee on Economic, Social and Cultural Rights, General Comment No 18, The Right to Work (art. 6), 2005, E/C.12/GC/18, paras. 31 (c) and 46–47; Committee on Economic, Social and Cultural Rights, General Comment No 15, The Right to Water (art. 11-12), 2002, E/C.12/2002/11, para. 54; Committee on Economic, Social and Cultural Rights, General Comment No 14, The Right to the Highest Attainable Standard of Health (art. 12), 2000, E/C.12/2000/4, paras. 57–58; Committee on Economic, Social and Cultural Rights, General Comment No 13, The Right to Education (art. 13), 1999, E/C.12/1999/10, para. 52; Committee on Economic, Social and Cultural Rights, General Comment No 12, The Right to Adequate Food (art. 11), 1999, E/C.12/1999/5, para. 29; Committee

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which should be measured by the indicators. Thanks to human rights indicators, it is thought, a treaty body would be able to examine closely the human rights situation in a state with a view to making its recommendations. Treaty bodies, however, do not specify the indicators that states should establish for this purpose.

Actually, it is the states themselves that will have to define which human rights indicators they intend to use in order to enable treaty bodies to monitor their human rights achievements. The latter, however, will have to check whether these indicators reflect human rights treaty standards and agree on their adoption.

Concrete proposals for human rights indicators have been coming from different sides. Paul Hunt, the UN Special Rapporteur on the right to health, developed indicators relating to the right to health, and later children’s right to health and, in particular, child survival.6 The OHCHR has also been active in developing human rights indicators. It recently proposed to the treaty bodies a framework for this purpose including a list of indicators relating to four human rights.7 Additional indicators are currently being developed by the OHCHR. Human rights indicators, however, will also need the reporting process to be reinforced since, as has been be argued by Audrey Chapman, treaty bodies do currently not have the time and experience to cope with the information necessary for using such indicators.8 Treaty bodies do, indeed, not have the capacity to analyse comprehensive data on all states’ human rights performances. Treaty body reform should take this into account if human rights indicators are to be included in state reports.

2.2. Integrating Human Rights into Indicators The development of human rights indicators necessitates embracing a human rights-based approach to indicators that ensures that human rights aspects are on the Rights of the Child, General Comment No 7, Implementing Child Rights in Early Childhood 2006, CRC/C/GC/7, para. 39; Committee on the Rights of the Child General, General Comment No 5, General Measures of Implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), 2003, CRC/GC/2003/5, para. 48.

6) See P. Hunt, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, 2004, A/59/422, paras. 59–84; Hunt, supra note 3, paras. 5–37.

7) See OHCHR Report, supra note 2. The four human rights for which the OHCHR developed indicators are the right to life, the right to judicial review of detention, the right to food and the right to health. More recently, the Inter-American Commission on Human Rights developed an indicators model for assessing progress in the realisation of the rights enshrined in the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) based on the framework established by the OHCHR. See Inter-American Commission on Human Rights, Guidelines for Preparation of Progress Indicators in the Area of Economic, Social, and Cultural Rights (OAS, Washington, 2007), <www.cidh.org/ pdf%20files/Guideline%20october%202007%20eng.pdf>, visited on 7 November 2007.

8) A. Chapman, ‘The Status of Efforts to Monitor Economic, Social and Cultural Rights’, in A. Minkler and S. and Hertel (eds.), Economic Rights: Conceptual, Measurement, and Policy Issues (Cambridge University Press, Cambridge, 2007) p. 161.

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incorporated into these indicators. As will be seen in this section, human rights indicators differ from development indicators and must be disaggregated into particular groups. Also, human rights can be measured by adopting either a violations or an enjoyment approach to human rights.

2.2.1. Human Rights-based Approach to Indicators A human rights-based approach to indicators aims to hold duty-bearers – in casu states – accountable for their human rights obligations. Human rights indicators do not aim to evaluate a state’s level of development, but ensure that it is meeting its obligations under international human rights law. By doing so, they contribute to the replacement of a needs-based approach with a rights-based approach in the evaluation of state practices.

In order to develop human rights indicators, it is first necessary to clarify the content of human rights since for human rights to be properly measured it is essential that the concepts to be measured are clearly understood. This requires an analysis not only of the substantive components of human rights, but also of their mutual relationships.9 This has been the approach of the United Nations Housing Rights Programme (UNHRP), which sought to break down the various elements of the right to adequate housing (referring to Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and General Comment 4 on the right to adequate housing of the Committee on Economic, Social and Cultural Rights) before developing a set of indicators for it.10 It also made a list of agreed operational definitions in relation to the right to adequate housing.11 In addition to understanding the content of human rights, it is necessary to ensure that there is an adequate institutional capacity for the collection of data, identify the monitoring entities that will interpret the data and establish a participatory process.12 Human rights indicators must also reflect the international law applicable to a state. Three steps could be taken in order to achieve this.13 First, indicators must be linked to the provisions of human rights treaties to which the state is a party

9)

N. Thede, ‘Human Rights and Statistics: Some Reflections on the No-man’s-land between Concept and Indicator’, 18 Statistical Journal of the United Nations (2001) ECE p. 268.

10) United Nations Housing Rights Programme, Working Paper N° 1. Monitoring Housing Rights.

Background Paper for the 2003 Expert Group meeting on Housing Rights Monitoring (UN-HABITAT and OHCHR, Nairobi, 2003). See also M. Kothari, Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, 2007, A/HRC/4/18, paras. 4–7.

11) United Nations Housing Rights Programme, ibid., Annex 1.

12) Malhotra and Fasel, supra note 2, pp. 7–8.

13) See R. Malhotra and N. Fasel, ‘Quantitative Human Rights Indicators – A Survey of Major Initiatives’, (Discussion paper presented at the Turku Expert Meeting on Human Rights Indicators, Turku/Åbo, 10-13 March 2005) p. 17, <www.abo.fi/instut/imr/research/seminars/indicators/ Background.doc>, visited on 7 November 2007.

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(that is, the treaties it has ratified, taking into account its reservations, if any) so as to properly reflect human rights treaty standards. By so doing, human rights indicators will fall within the international legal framework and second, the indicators must be devised according to the constitutive elements of the rights protected by human rights treaties. This can be accomplished with the aid of the jurisprudence and general comments of international and regional human rights bodies. Third, the selected indicators must be disaggregated at least into gender, race, ethnicity and age. As will be shown later in this part of the article, further disaggregation of human rights indicators will sometimes be necessary.

2.2.2. Human Rights Indicators Versus Development Indicators From the 1990s onwards, indicators have been used in the development field, especially in the UN, as mentioned earlier. States have shown themselves more willing to collect data for development indicators since they consider that the purpose of these indicators is not to criticise the government, but rather to support requests for aid.14 Conversely, it is politically more difficult to obtain data from governments in order to develop human rights indicators, as they create a culture of accountability and can put governments’ actions into question.15 The replacement of development indicators by human rights indicators leads to individuals whose rights are violated no longer being regarded as aid recipients but as right-holders.

Development and human rights indicators differ for two reasons. First, as mentioned above, only human rights indicators can hold states accountable, based, as they are, on international legal standards. Development indicators evaluate whether the population of a state has access to basic needs, whereas human rights indicators measure the extent to which that state is complying with its human rights obligations.16 In other words, development indicators only examine the state of a situation and not the right to that situation.17 Assessing the extent to which international human rights have been implemented, however, is conceptually different and more difficult than doing so for living conditions. It is easier to evaluate, for instance, the health, housing, food and education conditions in a particular state, than to measure that state’s failure to respect, protect and fulfil people’s rights to health, adequate housing, food 14) T. Hammarberg, ‘Searching the Truth: The Need to Monitor Human Rights with Relevant and Reliable Means’, 18 Statistical Journal of the United Nations ECE (2001) p. 136.

15) See UNDP, Human Development Report 2000 (New York, Oxford University Press, 2000) p. 91.

16) Inter-American Commission on Human Rights, supra note 7, paras. 15–16.

17) T. Landman and J. Häuserman, ‘Map-making and Analysis of the Main International Initiatives on Developing Indicators on Democracy and Good Governance’, (Paper presented at the Turku Expert Meeting on Human Rights Indicators, Turku/Åbo, 10-13 March 2005) p. 21, <www.abo.fi/ instut/imr/research/seminars/indicators/final-report.pdf>, visited on 7 November 2007.

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and education. The fact that a state ostensibly adopts a policy relating to human rights does not necessarily mean that it is properly implementing them. Second, as will be emphasised in the next subsection, development indicators fail by and large to take non-discrimination into account and provide only a partial picture of the human rights situation in a state. For example, the indicators created to monitor the Millennium Declaration Goals (MDGs), which can be considered as development indicators, do not focus on discrimination and disregard gender discrimination in particular.18 Regarding the right to education, for instance, the evaluation of the average national literacy rate, which is necessary for monitoring these Goals, does not provide information on the risk of girls being denied access to education.

Development indicators could, nonetheless, be used to measure human rights in two ways. First, there are situations in which development and human rights indicators can overlap (as can development and human rights as such), particularly since efforts are being made by development agencies to integrate human rights into development programming.19 Consequently, some development indicators, such as the budget spent on a human rights-related issue, could also be treated as human rights indicators.20 Furthermore, indicators that evaluate the human rights aspects of a situation without tackling discrimination, as development indicators often do, could be regarded as ‘incomplete’ human rights indicators or be used as proxy indicators. Second, it is possible to adapt development indicators by supplementing the data they use with data linked to human rights treaty standards and disaggregating it into particular groups.21 This would particularly apply to the aforementioned ‘incomplete’ human rights indicators. Doing so reduces the costs that would be created by looking for new human rights indicators. The disaggregation of indicators is made easier by the fact that non-discrimination is not so strange to development as both human rights and development aim to assist the most disadvantaged in society (albeit from a different perspective).22 2.2.3. Importance of Disaggregating Indicators Disaggregating information is probably the most important contribution that could be made by human rights indicators. Indicators for assessing the average 18) UNIFEM, Progress of the Worlds’ Women 2002. Gender Equality and the Millennium Goals, Vol. 2, UNIFEM Biennial Report (UN, New York, 2002) p. 60.

19) See UN, The UN Common Understanding on a Human Rights-Based Approach to Development Cooperation, 2003, <www.undp.org/governance/docs/HR_Guides_CommonUnderstanding.pdf>, visited on 7 November 2007.

20) E. Filmer-Wilson, ‘An Introduction to the Use of Human Rights Indicators for Development Programmes’, 24 Netherlands Quarterly of Human Rights (2006) p. 156.

21) Landman and Häuserman, supra note 17, pp. 18–19 and 35; K. Tomasevski, ‘Indicators’, in A. Eide et al (eds), Economic, Social and Cultural Rights (Martinus Nijhoff Publishers, Dordrecht/ Boston/London, 2001) p. 391.

22) UNDP, supra note 15, p. 31.

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human rights situation in a state will not reveal whether human rights are enjoyed in that state. Governments, however, may be reluctant to disaggregate data since doing so might reveal the actual human rights enjoyment of their citizens. Thus, so doing would force them to face their responsibilities.

Tackling discrimination is probably what most characterises human rights indicators. Disaggregating indicators means not only dividing indicators into generally known but also into specific categories according to the right being monitored and the state under examination. Indicators should, therefore, be disaggregated not only into gender, race, ethnicity and age, but also, where necessary, into rural-urban, region, income, disability, language, nationality, sexual orientation, and so on.23 In developing states, for instance, indicators for measuring the level of the realisation of the right to adequate housing must be disaggregated into urban and rural, failing which these indicators will only reveal the urbanisation rate of a country.24 In developed states, indicators relating to the right to personal liberty need to be disaggregated into the categories of asylum seeker, migrant or terrorist suspect since these groups are in a particularly vulnerable position vis-à-vis the authorities of these states.25 Sometimes it is, also, necessary to further disaggregate already disaggregated data by incorporating specific differentiations into existing categories. Indicators relating to the right to education of migrants, for instance, should be further disaggregated according to gender. Indicators for assessing compliance with the right to food in rural areas, for instance, require their being divided into farmer, smallholder and landless categories.26 Measuring the extent to which discrimination exists in the realisation of international human rights is the best way to start developing human rights indicators.

23) Human rights treaties provide many grounds of discriminations. While Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) prohibits discriminations in the application of the Convention on the bases of race, colour or national or ethnic origin, Article 2(2) of the ICESCR and Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) do so for race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In addition, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) prohibits discrimination between men and women, and the Convention on the Rights of the Child (CRC) between children as such. However, while most of these grounds refer to easily identifiable categories, some of them, such as ethnicity, are based on less apparent criteria and must therefore be handled with care. See OHCHR Report, supra note 2, para. 27.

24) United Nations Housing Rights Programme, Report of the Expert Group Meeting on Housing Rights Monitoring (Geneva, UN-HABITAT and OHCHR, 2003) p. 6.

25) V. Wagner and M. Novak, ‘Monitoring the Protection of Human Rights in the European Union: An Evaluation of Mechanisms and Tools’, (Reflexive Governance in the Public Interest: Fundamental Rights. Working paper series, REFGOV-FR-9) p. 77, <refgov.cpdr.ucl.ac.be/?go=publications>, visited on 7 November 2007.

26) A. Eide, ‘The Right to an Adequate Standard of Living Including the Right to Food’, in Eide et al, supra note 21, pp. 133 and 141.

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There are three reasons for this. First, the principle of non-discrimination is intangible in international human rights law when it comes to civil and political as well as economic, social and cultural rights.27 As a result, any discrimination revealed by a human rights indicator will point to the state’s failure to meet its human rights obligations, notwithstanding the average enjoyment of human rights in that state. Second, non-discrimination in the realisation of international human rights is easily measured and rapidly detected by statistical data. Also, it is quickly experienced by those who are discriminated against and often results in more swift reactions than is the case with overall violations of human rights.

Third, tackling discrimination in the implementation of human rights can sometimes be achieved without using a huge amount of resources. In some cases, all that is required is for the state to stop carrying out discriminatory practices, or implement its policies with greater emphasis on equality, which is less demanding on its resources than setting up ambitious human rights programmes.

2.2.4. Violations or Enjoyment Approach to Human Rights?

Human rights can be measured from two different perspectives: from a violations perspective and from an enjoyment perspective. A violations approach to human rights stresses the state’s failure to comply with international human rights, whereas an enjoyment approach refers to the extent to which rights-holders are enjoying their rights. Although both these approaches represent two sides of the same coin, whichever one is adopted has consequences for the measurement of human rights. According to Audrey Chapham, a violations approach is more advantageous, especially with regard to economic, social and cultural rights, since it requires less data to establish a violation.28 The advantage of this approach is also that its focus on obligations enables duty-bearers to be held accountable. It makes, as a result, redress easier to provide for the victims of human rights violations. An enjoyment approach to measuring human rights, however, should not be ruled out since this type of approach allows progress in the realisation of human rights to be more precisely assessed.

27) Regarding economic, social and cultural rights, the obligations provided for in Article 2(2) and 3 of the ICESCR, which relate to non-discrimination, are, in contrast to those obligations falling under Article 2(1) of the Covenant, not subject to progressive realisation according to a state’s maximum available resources. In addition, Article 26 of the ICCPR, which also prohibits discrimination, can be relied upon autonomously from the other provisions of the Covenant – which means that no violation of them is required to establish its violation – and is moreover not limited in scope to the rights protected by that Covenant. See Human Rights Committee, General Comment No 18: Non-discrimination, 1989, HRI/GEN/1/Rev.6 146, at para. 12. Finally, ICERD, CEDAW and CRC apply in the same way to both civil and political and economic, social and cultural rights.

28) A. Chapman, ‘A ‘Violations Approach’ for Monitoring the International Covenant on Economic, Social and Cultural Rights’, 18 Human Rights Quarterly (1996) p. 39. See also A. Chapman and S. Russell, ‘Introduction’, in A. Chapman and S. Russell (eds), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Intersentia, Antwerp, 2002) p. 6.

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Although making a distinction between violations and enjoyment approaches to human rights may be an attractive option, theoretically at least, it bears little relevance to the development of human rights indicators. Indicators that show that people are not enjoying their human rights often also indicate that the state is not abiding by its human rights obligations. For instance, indicators showing the lack of access to health services by the population will probably indicate that the state has a bad health policy. Likewise, indicators that reveal a state’s violation will point to the fact that some people are not enjoying their human rights. For instance, indicators on police education (or the absence of it) will be correlated with the number of people that are subjected to torture.29 As they are interrelated, using indicators that measure both the violations and enjoyment of human rights will lead to a better understanding of a problem. The inseparability of both violations and enjoyment approaches to human rights is quite evident with regard to non-discrimination. Discrimination occurs when state behaviour results in a group of people being denied their rights, and when this group is systematically deprived of the enjoyment of its rights as a result of state (in)action.

3. Developing a Conceptual Framework for Human Rights Indicators To date no conceptual framework exists for human rights indicators. The absence of such a framework represents a serious impediment for two reasons. First, human rights indicators can only become a useful instrument if used consistently. In order to fully reflect human rights instruments, it is, therefore, necessary to know what exactly human rights indicators should measure. Second, human rights indicators should be part of a general strategy.30 Their use must be organised in a way that helps states to further implement international human rights. Rajeev Malhotra and Nicolas Fasel, two experts working on human rights indicators at the OHCHR, tried to remedy the first deficiency. According to them, human rights indicators must address two interrelated aspects of human rights: human rights principles and substantive human rights.31 In order to capture human rights principles, on the one hand, indicators should measure the extent to which the implementation

29)

It is also possible to consider violations and enjoyment approaches to human rights as, respectively, the positive and negative dimensions of human rights. See T. Landman, ‘The Scope of Human Rights: From Background Concepts to Indicator’, (Discussion paper presented at the Turku Expert Meeting on Human Rights Indicators, Turku/Åbo, 10-13 March 2005), pp. 12–13, <www.abo.fi/instut/imr/research/seminars/indicators/Background.pdf>, visited on 7 November 2007.

30) Developing human rights indicators is only one of the means to implement international human rights. Other means include establishing national human rights institutions, undertaking human rights impact assessments and adopting national human rights plans of action.

31) Malhotra and Fasel, supra note 2, pp. 12–15.

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of human rights ensures participation, non-discrimination and accountability.32 By doing so these human rights principles focus on the process by which states implement human rights. In order to evaluate compliance with substantive human rights, on the other hand, indicators should identify the major attributes of a right by breaking down its constitutive elements. As mentioned in the second part of this article, these attributes should be established according to the provisions of human rights treaties and their interpretation by human rights bodies. For example, the right to life could be divided into: the arbitrary deprivation of life, disappearances of individuals, health and nutrition and the death penalty, while the right to food could be divided into: nutrition, food safety and consumer protection, food availability and food accessibility.33 Distinguishing human rights principles and substantive human rights ensures that human rights indicators comprehensively reflect human rights treaty standards.

Another way of developing indicators for assessing state compliance with international human rights, suggested by Todd Landman, consists of three steps.34 First, human rights indicators should measure human rights in theory by looking at the ratification status of human rights treaties. Second, they should examine the human rights compliance of states in practice by examining human rights related-data. Third, indicators should evaluate governments’ policies supporting human rights.35 The first step concerns the human rights commitments made by the states. The second step, for which Rajeev Malhorta and Nicolas Fasel make the distinction mentioned above, is the most difficult to achieve, and requires the gathering of different kinds of data, which will be examined in the fourth part of this article. The third step focuses on a state’s attention to human rights, and considers the impact of governmental action on human rights.

Furthermore, human rights indicators must fulfil several requirements in order to be effective. They must be specific, measurable, attainable, relevant and time-framed.36 The last requirement is essential for measuring progress in the realisation of international human rights, and necessitates the development of a

32) Consideration for human rights principles is included in UN Special Rapporteur on the right to health Paul Hunt’s list of child survival indicators. See P. Hunt, supra note 6, paras. 15–16.

33) OHCHR Report, supra note 2, para. 15. See also Committee on Human Rights, General Comment 6, The right to life (art. 6), 1994, HRI\GEN\1\Rev.1, p. 127, paras. 2–7.

34) Landman, supra note 29, pp. 13–26. See also T. Landman, Protecting Human Rights. A Comparative Study, (Washington, Georgetown University Press, 2005) pp. 39–52; T. Landman, ‘Measuring Human Rights: Principle, Practice, and Policy’, 26 Human Rights Quarterly (2004) p. 906.

35) Todd Landman admits that the latter are only development or proxy indicators, despite their relating to human rights. See Landman, supra note 29, p. 24.

36) These criteria are also called the SMART criteria. In addition, according Hans-Otto Sano, indicators should be valid, balanced, sensitive, motivating, practical, owned and clear. See H-O. Sano, ‘Human Rights Indicators. Purpose and Validity’, (Paper presented at the Turku Expert Meeting on Human Rights Indicators, Turku/Åbo, 10-13 March 2005) p. 4, <http://www.abo.fi/instut/imr/ research/seminars/indicators/Human.doc>, visited on 7 November 2007.

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valid time framework for data collection and data interpretation. The frequency with which human rights indicators are used for evaluating a human rights situation should be established beforehand, and intervals should be neither too long nor too short. On the one hand, intervals that are too long will prevent the close evaluation of changes in the human rights situation, with the result that remedial action will be more difficult to formulate. Sessions before treaty bodies, therefore, cannot be the only occasion for using human rights indicators. States should use them more regularly at the national level. The regular use of human rights indicators would also cease reporting being seen solely as a burden every five years for the public administration. Moreover, human rights indicators that are updated regularly could facilitate national human rights institution and nongovernmental organisation (NGO) involvement in the monitoring process.37 On the other hand, intervals for using human rights indicators must not be too short since the collection and interpretation of data as well as the resultant action to be taken on the basis of these human rights indicators all take time. A reasonable interval is one year since this coincides with the reports issued by many institutions and organisations. It may, however, be necessary to use indicators more frequently in special circumstances, such as when sudden changes take place or when new human rights policies are being developed.

4. Developing Human Rights Indicators Human rights indicators are a means of measuring the extent to which international human rights have been implemented. The use of indicators necessitates the collection of data, four kinds of which can be distinguished: event-based data, socio-economic data, household perceptions and expert judgements. Once collected, the data will be used for human rights indicators, which can measure the level of realisation of both civil and political and economic, social and cultural rights. Indicators can also be divided into three different types: structural, process and outcome indicators.

4.1. Data on Human Rights Violations In order to measure human rights, it is first necessary that states collect human rights-related data. Doing so is the first step towards the implementation of human rights and has been prescribed by treaty bodies.38 Human rights-related 37)

Using human rights indicators in this way meet the two conditions that most affect reporting, namely continuity and participation. See C. Heyns and F. Viljoen, The Impact of the United Nations Human Rights Treaties on the Domestic Level (Kluwer Law International, The Hague/London/New York, 2002) p. 39.

38) Committee on Economic, Social and Cultural Rights, General Comment No 18, The Right to Work (art. 6), 2005, E/C.12/GC/18, paras. 46–47; Committee on Economic, Social and Cultural Rights, General Comment No 15, The Right to Water (art. 11-12), 2002, E/C.12/2002/11,

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data can be either quantitative or qualitative, the former being expressed in numerical form, the latter in narrative form.39 Both are complementary. On the one hand, quantitative data often requires explanations and must, therefore, be complemented by qualitative data. The latter, on the other hand, must be backed up by statistical information in order to be credible. Data relating to human rights violations can also be objective when based on observable facts and subjective if based on human perceptions. In view of the scarcity of the human rights-related data available, all the different kinds of data, whether quantitative, qualitative, objective or subjective, should be combined if the truth of a situation is to be obtained as accurately as possible. Data pertaining to human rights indicators can be divided into four categories: events-based data, socio-economic data, household perceptions and expert judgements (all of which tend to be more or less quantitative, qualitative, objective or subjective and have their own collection methods).

4.1.1. Events-based Data Events-based data provides information on single events. This is objective, qualitative data which mostly concerns civil and political rights. It provides information on what has occurred, to whom it occurred, who carried it out, the circumstances in which it occurred and other related aspects. Events-based data can, therefore, be disaggregated into individual violations.40 The accumulation of such data can provide an indication of the improvement or deterioration of human rights protection in a given state.41 Also, events-based data can easily be linked to human rights treaty standards since the normative dimension of this kind of data is often easily perceivable.

The best known method for collecting events-based data is HURIDOCS, which records human rights-related events on the basis of information regarding the location, time, victims and alleged perpetrator(s) of human rights violations, and makes for this purpose an Event Standard Format available to human rights

para. 54; Committee on Economic, Social and Cultural Rights, General Comment No 14, The Right to the Highest Attainable Standard of Health (art. 12), 2000, E/C.12/2000/4, para. 20; Committee on Economic, Social and Cultural Rights, General Comment No 13, The Rights to Education (art.

13), 1999, E/C.12/1999/10, para. 20; Committee on Economic, Social and Cultural Rights, General Comment No 12, The Right to Adequate Food (art. 11), 1999, E/C.12/1999/5, para. 39; Committee on the Rights of the Child General, General Comment No 5, General Measures of Implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), 2003, CRC/ GC/2003/5, para. 48.

39) Actually, quantitative and qualitative data have many aspects in common. Although they are represented in different ways, they both know measurement error problems and create artificial categories to capture concepts. See G. King et al., Designing Social Inquiry. Scientific Interference in Qualitative Research (Princeton University Press, Princeton, 1994) pp. 151–152.

40) Landman, supra note 34, p. 918.

41) Landman and Häuserman, supra note 17, p. 5.

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organisations.42 In addition, international NGOs, such as Amnesty International, Human Rights Watch, the International Helsinki Foundation and the International Commission of Jurists, as well as national human rights institutions, local NGOs and foreign offices use events-based data in their reports. Truth commissions as well as individual or collective complaints mechanisms also provide such data.

Events-based data, however, falls short in many regards. The main problem is that it is impossible to collect enough events-based data to achieve a complete picture of the human rights situation in a particular state. Due to the fact that they are incomplete, events-based data cannot reveal the magnitude but only the patterns of human rights violations. Missing data, however, such as the absence of death registrations or previously available data, can indicate that human rights violations are being concealed by states.43 Also, a state’s silence about generally known events is often a sign that it is fully aware that it fails to comply with its human rights obligations.44 4.1.2. Socio-economic Data Socio-economic data, also called statistical data because of its quantitative nature, is plentiful. In contrast to events-based data, it is not based on individual violations. Socio-economic data provides information on the living conditions of the citizens of a state which can give an indication of the average degree to which human rights are enjoyed in that state.45 This data is quantitative and objective and mainly concerns economic, social and cultural rights.

Many international agencies, such as the UN Educational, Scientific and Cultural Organization (UNESCO), the Organisation for Economic Co-operation and Development (OECD), the UN Children’s Fund (UNICEF), the International Labour Organization (ILO), the UN Development Programme (UNDP), the UN Food and Agriculture Organization (FAO), the UN Development Fund for Women (UNIFEM) and the Word Bank, collect socio-economic data in order to fulfil their mandate.46 Such data is, for instance, used for UNDP’s Human Development Index, which evaluates states’ development achievements, and the MDG indicators, which examine states’ progress towards the MDGs. The weakness of this data, however, is that it is not intended to measure human rights. Socioeconomic data is neither linked to human rights treaty standards nor disaggregated 42)

HURIDOCS Events Standard Formats: A Tool for Documenting Human Rights Violations (HURIDOCS, Versoix, 2001), <www.huridocs.org/tools/violations>, visited on 7 November 2007.

Registration is necessary to access this document.

43) See D. Samuelson and H. Spirer, ‘Use of Incomplete and Distorted Data in Inference about Human Rights Violations’, in T. Jabine and R. Claude (eds), Human Rights and Statistics. Getting the Record Straight (Philadelphia, University of Pennsylvania Press, 1991) p. 62.

44) UNDP, supra note 16, p. 94.

45) Wagner and Novak, supra note 25, p. 25.

46) See ibid., pp. 25–32; Malhotra and Fasel, supra note 13, pp. 12–18.

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into particular groups, but rather collected according to the particular mandates of the abovementioned agencies. It focuses on a state’s level of development and can, therefore, only be used for the purpose of development indicators.

Despite the fact that socio-economic data cannot directly be used for human rights indicators, it can be useful in two ways. First, it can be used as proxy measures for evaluating the level of human rights realisation by bringing to light the environment in which human rights indicators are operating. It can also indicate the extent to which governments develop human rights-friendly policies, a move suggested earlier by Todd Landman.47 Second, as already mentioned, socio-economic data can be supplemented by data linked to human rights treaty standards and disaggregated into particular groups for use by human rights indicators. International agencies could disaggregate socio-economic in their possession to achieve this.48 4.1.3. Household Perceptions Household perceptions refer to information on the general public opinion expressed in narrative form. This information is qualitative and subjective, although it can be turned into quantitative information by evaluating the average public opinion and be objective when opinion is based on directly observed facts.

Household perceptions must not be seen as a secondary source of human rights data since they can complete, confirm or question other kinds of data. Several projects are conducting opinion surveys, although they do not concern human rights in particular. Examples are the Gallup International Millennium Survey and the METAGORA project both of which are collecting worldwide opinions on governance and democracy. Barometer surveys, such as the Eurobarometer and the Afrobarometer, also report on public opinion regarding the same issues.

Alone, household perceptions have a limited value since they only represent a sample of the public’s opinion. Moreover, in principle they do not aim to measure human rights as such. They also depend on public sensitivity. The public’s understanding of human rights may differ from state to state.49 This could even be the case within a state, for instance, between ethnic groups or between residents and non-residents. It is, therefore, necessary to establish a clear link between the questions asked in opinion surveys and human rights treaty standards.

47)

Landman, supra note 29, p. 24.

Some international agencies are already doing so. UNDP, for instance, created a GenderRelated Development Index, which refines the existing Human Development Index according to sex discrimination. It also created pro-poor and gender-sensitive indicators that can be obtained by further disaggregating data by poverty status and sex. See UNDP, Measuring Democratic Governance. A Framework for Selecting Pro-poor and Gender Sensitive Indicators (UNDP, Oslo, 2006), <www.undp.org/oslocentre/docs06/Framework%20paper%20-%20entire%20paper.pdf>, visited on 7 November 2007.

49) Landman, supra note 34, p. 924.

48)

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4.1.4. Expert Judgements Expert judgements also provide qualitative and subjective information. This kind of information, however, does not derive from the general public but from experts.

Expert judgements represent the opinions of human rights specialists. Expert judgements can, inter alia, be obtained from research institutes, the media and NGOs. Amnesty International and Human Rights Watch, for instance, both publish reports on widespread human rights violations. Another example is the Cingranelli-Richards Human Rights Dataset,50 run by a group of researchers based in Binghampton University in the US, which provides information on the realisation of 13 human rights globally. Other examples of expert judgements are the Political Terror Scale (based on the reports of Amnesty International and the US State Department) and the Freedom House index (based on foreign reports, academic studies and NGO analyse).

Expert judgements, at least by themselves, do not provide useful information for human rights indicators, and should not be prioritised over household perceptions by arguing that they are made by professionals. Most expert judgements allow general cross-national comparisons to be made but not to monitor progress in the realisation of international human rights. However, they could still be useful as a first indication of the human rights situation in a particular state.51 4.2. Indicators Relating to Civil and Political as well as Economic, Social and Cultural Rights Since human rights are indivisible and interdependent,52 it is better to avoid making too great a differentiation in the approaches to the creation of indicators relating to civil and political and economic, social and cultural rights. A separate study of both sets of human rights indicators, however, is unavoidable because they have a different history and methodology. Nonetheless, it is possible to develop a common approach to the establishment of indicators relating to civil and political as well as economic, social and cultural rights, as will be demonstrated in this section.

4.2.1. Civil and Political Rights Indicators The development of civil and political rights indicators has not been very successful to date. There are two reasons for this. First, there is a substantial lack of data with regard to civil rights violations (which are principally events-based) because governments tend to hide their repressiveness. As shown by Kenneth Bollen, data

50)

See D. Cingranelli and D. Richards, ‘Measuring Government Effort to Respect Economic Human Rights: A Peer Benchmark’, in Minkler and Hertel (eds), supra note 8, p. 214.

51) Wagner and Novak, supra note 25, p. 38.

52) UN World Conference on Human Rights, Vienna Declaration and Programme of Action, 1993, A/Conf.157/23, Part I, para. 5.

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on civil rights violations are filtered in various ways and in successive stages: some are simply unrecorded; some are recorded but not accessible; some are accessible but unreported; some are reported locally but not abroad.53 Moreover, reported violations can be biased or misrepresented by those who handle the data.54 As a result, it is impossible to get to know the exact degree of civil rights violation in any given state. This results in a paradox: states that normally respect civil rights may actually have a worse record than repressive states in statistical terms since the former may be the only ones whose civil rights violations are publicly known.55 In addition, complaints are less frequent in repressive states due to the absence of redress mechanisms and the people’s mistrust in such mechanisms when they do exist. Second, it is difficult to link indicators to civil and political rights concepts, or at least some of them, because they are often subject to different interpretations. For example, prolonged pre-trial detention might mean that the right to liberty of many persons is violated, but also that a state is facing an unexpected high rate of criminality. Similarly, the absence of press criticism can indicate that a state is repressive, but also that there is (for the time being) not much to complain about.

Although rare, endeavours to develop civil and political rights indicators do exist. With respect to civil rights indicators, Victoria Wagner and Manfred Novak, for instance, tried to develop liberty of person indicators for European states.56 They have done so by measuring state compliance with the provisions of Article 5 of the European Convention of Human Rights (ECHR). The OHCHR developed indicators relating to the right to life and the right to judicial review of detention, referring, by doing so, to Articles 6 and 9 of the International Covenant on Civil and Political Rights (ICCPR), respectively.57 Regarding political rights indicators, some are included in the Common Country Assessment (CCA)58 and the already mentioned Freedom House index.59 However, these indicators do not reflect human rights treaties and aim only to measure the level of democracy in a particular state.

53) K. Bollen, ‘Political Rights and Political Liberties in Nations: An Evaluation of Human Rights Measures, 1950 to 1984’, in Jabine and Claude (eds), supra note 43, pp. 198–201.

54) Landman, supra note 34, p. 923; Landman, supra note 29, p. 22.

55) Bollen, supra note 54, p. 200.

56) See Wagner and Novak, supra note 25, pp. 79–85.

57) OHCHR Report, supra note 2, Annex.

58) The CCA aims to assess the development situation of a state with a view to preparing the UN Development Assistance Framework (UNDAF).

59) The Human Development Report 1991 included a Political Freedom index. However, this index met a lot of criticism (and was subsequently withdrawn), not least because it provided rankings based on not clearly defined standards. See K. Tomasevski, ‘A Critique of the UNDP Political Freedom Index 1991’, in Human Rights in Developing Countries. 1992 Yearbook (Oslo, Norwegian Institute for Human Rights, 1992) pp. 12–16.

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4.2.2. Economic, Social and Cultural Rights Indicators Indicators relating to economic, social and cultural rights have been developing at a rapid pace. In contrast to civil and political rights indicators, there have been no problems with obtaining data for them, especially since there is a substantial amount of information available on economic and social issues. In addition, governments are not tempted to hide this kind of information since they regard it as relating more to development than human rights. However, there are two problems with establishing indicators relating to economic, social and cultural rights. First, the long neglect and resultant non-justiciability of these rights has impeded their proper understanding. Indicators relating to economic, social and cultural rights indicators, however, could be the right solution to this problem since they could give a concrete meaning to the content of these rights.60 To avoid misinterpretations in doing so, it is important that an independent body, such as the Committee on Economic, Social and Cultural Rights, be involved in their development. Second, economic, social and cultural rights enshrined in the ICESCR are in part subject to progressive realisation according to a state’s maximum available resources.61 Indicators relating to them should, therefore, take into account the differences in available resources between states and also over time within a state. Such resources include money, personnel, technology, information, government expenditure as well as potentially available national resources which can be created by state policies, such as land reform and wealth taxes, and international resources.62 The contextualisation of indicators relating to economic social and cultural rights might result in similar data obtained in different states leading to different conclusions regarding the breach of human rights obligations.

Some of the obligations provided for in the ICESCR are not subject to progressive realisation; these are the core obligations of this Covenant, respect for the principle of non-discrimination and the obligation to immediately take steps for the realisation of economic, social and cultural rights. These obligations must be fulfilled immediately in all circumstances, which mean that indicators measuring their compliance are to be invariable. With regard to the principle of non-discrimination, as stated earlier, this means that any discrimination that indicators might reveal in the enjoyment of economic, social and cultural rights will automatically result in their violation. Regarding the obligation to immediately take steps towards the realisation of economic, social and cultural rights, indicators showing that a state has no policy whatsoever to further implement them will also result in a violation.

60) See G. de Beco, ‘Measuring Human Rights: Underlying Approach’, European Human Rights Law Review (2007) pp. 272–273.

61) Article 2(1), ICESCR. 62) R. E. Robertson, ‘Measuring State Compliance with the Obligation to Devote the “Maximum Available Resources” to Realizing Economic, Social, and Cultural Rights’, 16 Human Rights Quarterly (1994) pp. 695–700.

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4.2.3. A Common Approach to the Development of Indicators Relating to Both Sets of Rights Indicators relating to civil and political as well as economic, social and cultural rights could actually be developed without significant variations. Both sets of indicators could be created in a similar way, for three reasons by: first, all human rights have both a protection and a promotion dimension and create both negative and positive obligations. It is, therefore, untrue that only economic, social and cultural rights can be realised progressively. Civil and political rights may create human rights obligations of an immediate nature, but this does not impede states being obliged to further make efforts to reduce their violation.63 States have the obligation to, for instance, reduce infant mortality,64 educate their law enforcement personnel, set up a proper judicial system and help people exercise their right to vote,65 all of which require considerable resources, with the final result being unlikely to ever be fully achieved. Second, as already argued, it is a fallacy to pretend that civil and political rights are better defined than economic, social and cultural rights.66 The right to free compulsory primary education, for instance, which is provided for in Article 13(2)(a) of the ICESCR, is more straightforward than the right to take part in the conduct of public affairs, which is guaranteed by Article 25(1) of the ICCPR. Third, as mentioned earlier, non-discrimination should be taken into account, similarly, for indicators relating to civil and political as well as economic, social and cultural rights. When developing human rights indicators, it is, therefore, preferable to divide all of them into three types, 67 as will be discussed in the next section.

4.3. Types of Human Rights Indicators Human rights indicators result from the translation of human rights concepts into measures that rely on the four kinds of human rights related-data mentioned above.68 According to Paul Hunt, the UN Special Rapporteur on the right to

63) M. Novak, U.N. Covenant on Civil and Political Rights. CCPR Commentary, 2nd rev. edn (N.P. Engel Verlag, Kehl, 2005) p. 62.

64) See Committee on Human Rights, General Comment 6, The Right to Life (art. 6), 1994, HRI\ GEN\1\Rev.1 at 127, para. 5.

65) See Committee on Human Rights, General Comment No. 25, The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service (art. 25), 1996, CCPR/C/21/ Rev.1/Add.7, para. 12.

66) It might nonetheless be argued that civil and political rights concepts are clearer because of their being clarified by the jurisprudence of human rights bodies. Many rights enshrined in the ICCPR and the ECHR, however, are still subject to interpretative questions, especially when applied in states where they are normally afforded better protection.

67) OHCHR Report, supra note 2, para. 13.

68) Landman, supra note 29, p. 11.

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health, human rights indicators – in casu to measure the level of realisation of the right to health – can be divided into structural, process and outcome indicators.69 The indicators should be combined in order to comprehensively evaluate the human rights situation in a state. The question that will also be asked in this section is whether human rights indicators should all be universal.

4.3.1. Structural Indicators Structural indicators show a state’s intention to abide by international human rights law. They relate to the ratification of human rights treaties and their incorporation into domestic legislation. Structural indicators measure, thus, de jure compliance (in contrast to de facto compliance) with human rights treaties. They also consider the establishment of non-judicial institutions for the implementation of human rights, such as ombudsmen and national human rights institutions and the making of statements on the adoption of human rightsfriendly policies. However, the ratification of human rights treaties, as such, does not mean that the human rights situation in a state will improve since human rights commitments could just be empty declarations made for other reasons than to promote and protect human rights.70 Also, the non-judicial institutions for the implementation of human rights mentioned above could prove inefficient. Therefore, structural indicators alone cannot evaluate state compliance with human rights treaties. Despite their limited relevance, attempts to develop human rights indicators, such as the right to adequate housing indicators proposed by the UNHRP, sometimes places too much emphasis on such indicators.71 The establishment of structural indicators is, nonetheless, indispensable since an analysis of the human rights commitments undertaken by states is necessary in order to define the benchmarks against which their behaviour will be assessed.

Moreover, determining the standards applicable to a state is required to establish the other human rights indicators. Structural indicators are also useful in that they examine national human rights legislation, which is the first unavoidable step in order to implement human rights. Above all, structural indicators are the most easy to work with because they often generate only yes or no questions and also because the data for these indicators is already being collected from many 69)

P. Hunt, supra note 3, paras. 22–29. He later applied the same distinction for developing child survival indicators. See P. Hunt, supra note 6, paras. 59–72.

70) See O. Hathaway, ‘Do Human Rights Treaties Make a Difference’, 111 Yale Law Journal (2002) p. 1936; L. Keith, ‘The United Nations International Covenant on Civil and Political Rights: Does It Make a Difference in Human Rights Behaviour?’, 36 Journal of Peace Research (1999) p. 95.

71) Seven out of the seventeen indicators relating to the right to health proposed by the UNHRP are structural indicators: four indicators relate to national legislation, one to the ratification of ICESCR, one to regular reporting to the Committee on Economic, Social and Cultural Rights and one to the presence of offices or institutions responsible for human rights. See United Nations Housing Rights Programme, supra note 11, pp. 51–56.

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sources, which maybe explains why they are sometimes overused. However, the realisation of international human rights depends mainly on other factors that cannot be evaluated by structural indicators.

4.3.2. Process Indicators Process indicators measure the efforts undertaken by states to implement international human rights. As outcome indicators (which will be analysed in the next subsection) process indicators measure de facto compliance with human rights treaties.

However, in contrast to outcome indicators, they examine the activities carried out by states and not the result of these activities. In other words, process indicators focus on the conduct of states, which allows holding them accountable,72 and distinguishing unwillingness from incapacity.73 By doing so, they focus on the promotion of human rights.74 Process indicators evaluate state policies that aim to implement civil and political as well social, economic and cultural rights, and assess whether more efforts could be made to achieve this. Examples are the proportion of law enforcement personnel trained in human rights, the percentage of people immunised against diseases, the evaluation of food safety programmes and the efficiency of voting materials. As mentioned earlier, process indicators should take the maximum available resources of a state into consideration. This might be done with the aid of a budgetary analysis showing the percentage of its GDP spent on health, education, employment, welfare, justice, housing and so on.75 Such analysis, however, should be conducted with care since complete data on government expenditure is not always available, especially in developing countries. Moreover, there is not always a direct correlation between an increase or a decline in human rights-related expenditure and the enjoyment of human rights. Although a budgetary analysis might show, for instance, that a state is spending a high percentage of its resources on higher education and that the enrolment rate is high, it does not reveal anything about the quality of the education provided or why this enrolment rate is high, which could be due to pupils dropping out or repeating their school years.76 Process indicators must, therefore, include indicators that evaluate the value of a state’s human rights policies.

Regarding the right to education, they could, for instance, consider the number of students per teacher, as well as repetition and dropout rates, all of which must be disaggregated into at least gender, race, ethnicity and age.77 72)

OHCHR Report, supra note 2, para. 18; Malhotra and Fasel, supra note 13, p. 28; Malhotra and Fasel, supra note 2, p. 15.

73) Tomasevski, supra note 21, p. 390.

74) Sano, supra note 36, p. 11.

75) For budget analyses and human rights, see Chapman, supra note 8, pp. 156–157; Cingranelli and Richards, supra note 50, p. 222.

76) K. Beeckman, ‘Measuring the Implementation of the Right to Education: Educational versus Human Rights Indicators’, 12 The International Journal of Children’s Rights (2004) p. 73.

77) K. Beiter, The Protection of the Right to Education by International Law. Including a Systematic Analysis of Article 13 of the International Covenant on Economic, Social and Cultural Rights (Martinus Nijhoff

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Process indicators are essential because the manner in which states implement international human rights is as important as the outcome of their actions. By focusing on states’ efforts, process indicators tend to favour a violations approach to human rights, which as mentioned earlier, makes room for accountability. In addition, process indicators are an apt instrument for evaluating compliance with human rights principles, which, as mentioned earlier, represent one of the two human rights aspects to be addressed by human rights indicators. Process indicators can, thus, evaluate how far states enable people to participate, respect equality and create accountability mechanisms when implementing human rights.78 4.3.3. Outcome Indicators Outcome indicators measure a state’s human rights performance. Just like process indicators, they evaluate de facto compliance with human rights treaties. However, in contrast to process indicators, they focus more on the efforts’ results than on the efforts themselves. They measure, thus, the efficiency of a state’s human rights policies, focussing on the protection of human rights in their measurements.79 Outcome indicators, furthermore, favour an enjoyment approach to human rights. By themselves, however, these indicators cannot establish whether a state has failed to comply with its human rights obligations.80 Some outcome indicators are directly provided for by human rights treaty provisions. Such provisions include Article 7 of the ICCPR, which provides that no one shall be subjected to torture, and Article 13 (2) of the ICESCR, which obliges states to guarantee free primary education. With regard to the latter, outcome indicators could be the number of enrolled children in primary schools. Other examples are the maternal mortality rate, the percentage of people infected with diseases and the proportion of citizens impeded to vote. Outcome indicators, particularly those relating to economic, social and cultural rights, are often similar to the indicators monitoring progress towards the MDGs. However, as already

Publishers, Leiden/Boston, 2005) p. 627. The right to education indicators elaborated by Klaus Beiter are based on the 4-A Scheme proposed by former Rapporteur on the right to education, Katerina Tomasevski. See K. Tomasevski, Annual Report of the Special Rapporteur on the Right to Education, 2002, E/CN.4/2002/60, pp. 12–13; K. Tomasevski, Preliminary Report of the Special Rapporteur on the Right to Education, 1999, E/CN.4/14999/49, pp. 15–25.

78) The efficiency of accountability mechanisms can be evaluated by counting the number of complaints of human rights violations. However, the signification of this might vary since it can either mean that human rights violations are frequent or that human rights awareness is high. This is for instance the case when a new human rights legislation generates a lot of complaints, which means that people know the rights enshrined in it. After a certain period, fewer complaints might indicate that compliance with that legislation has been achieved.

79) Sano, supra note 36, p. 11.

80) Outcome indicators’ secondary role in assessing state compliance with human rights is confirmed by Paul Hunt’s developed set of human rights indicators including only few such indicators.

See P. Hunt, supra note 6, paras. 17–26.

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mentioned, the latter should be further disaggregated if they are to be used for the purpose of human rights indicators.

4.3.4. Combining Human Rights Indicators Human rights indicators are only useful if combined with each other. Structural, process and outcome indicators are complementary and interdependent. While structural indicators evaluate the commitments undertaken by states, process and outcome indicators assess their abidance by them. Process and outcome indicators can also, not be used separately. While outcome indicators alone are informative since they overlook the way in which human rights are implemented, process indicators need outcome indicators in order to evaluate the efficiency of human rights policies. Both kinds of indicators are mutually reliant, some measuring the results of efforts, others evaluating the efforts themselves.81 They can, therefore, only properly reflect human rights treaty standards when taken together. Infant mortality, for instance, an outcome indicator, depends on a state’s healthcare policy and in particular the availability of skilled health personnel and access to immunisation, which are process indicators.82 Similarly, housing availability will depend on the state’s housing policy, its coping with homelessness in particular.

On the other hand, the efficiency of the said healthcare and housing policies will be determined by infant mortality and housing availability.

A combination of the different types of human rights indicators was proposed

by Isabelle Kempf in relation to the right to education. Such a combination would take the form of a three-level pyramid consisting of outcome, process and proxy indicators.83 First, a limited set of key indicators, which could be regarded as outcome indicators (although Isabelle Kempf does not use this term), should be disaggregated into particular groups. Second, additional indicators, which could be regarded as process indicators (although Isabelle Kempf does not use this term either), should be developed in order to assess the “forces at work behind the key indicators”.84 Third, proxy indicators should examine the political and social background of the state whose human rights compliance is being assessed. This information, which states must already include in their reports to treaty bodies, could help to interpret the selected human rights indicators.

81) Because human rights are interrelated, it is also possible that an outcome indicator relating to one human right is a process indicator relating to another or the other way around. See OHCHR Report, supra note 2, p. 8; Malhotra and Fasel, supra note 2, p. 15.

82) P. Hunt, supra note 6, paras. 22–25.

83) See I. Kempf, How to Measure the Right to Education: Indicators and their Potential Use by the Committee on Economic, Social and Cultural Rights, 1998, E/C.12/1998/22. Isabelle Kempf does not include structural indicators in her three-level pyramid. Note that this proposition has been made in 1998.

84) Ibid., p. 3.

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4.3.5. Universal Indicators?

The question raised by universal indicators is whether the development of human rights indicators should lead to the creation of indicators common to all states.

The answer to this question, in principle, is negative because in so doing it would not take into account the capacities of each individual state.85 This is why, as already mentioned, indicators may partly vary according to a state’s maximum available resources. Universal-only indicators would actually measure a state’s level of development more than its compliance with international human rights. This would, as a result, wrongly favour developed states.86 Developing solely universal indicators would allow making cross-national comparisons. Such comparisons, however, require the creation of composite indexes, which should be avoided since they can only be obtained by weighing different human rights (or their elements) against each other, and since they do not take into account discrimination.87 Cross-national comparisons also do generally not aim to promote and protect human rights. If states are to be compared, this should actually be done by comparing human rights indicators individually. The comparison of individual indicators – which can only be done for states that have achieved a similar level of development – does not require indicators common to all states. Such comparison can be limited to certain indicators or states.88 Establishing universal-only indicators is, therefore, unnecessary. However, universal indicators will inevitably exist for the reason that some human rights obligations are of an immediate nature for all states. Indicators for evaluating compliance with human rights principles will also be invariable, except with respect to vulnerable groups present in some states and not in others. Both universal and countryspecific indicators should, therefore, be developed and, as pointed to by the OHCHR, an equilibrium found between the two.89 5. Benchmarks Agreeing on benchmarks is, in fact, the first step in order to develop human rights indicators for assessing state compliance with international human rights.

85)

OHCHR Report, supra note 2, para. 28.

A poor person living in a wealthy country does not face the same difficulties as a person living in the same conditions in a poor country. The former will have to make more efforts than the latter so as to live in dignity in his or her state. See A. Sen, Un nouveau modèle économique. Développement, Justice, Liberté (translation: Michel Bessières) (Editions Odile Jacob, Paris, 1999) p. 79.

87) See de Beco, supra note 60, pp. 273–274.

88) Comparisons, however, require first that concepts be understood similarly by the states that are being compared. See A. Lyon-Caen and J. Affichar, ‘From Legal Norms to Statistical Norms: Employment Policies put to the Test of Coordination’, in O. De Schutter and S. Deakin (eds.), Social Rights and Market Forces. Is the Open Coordination of Employment and Social Policies the Future of Social Europe? (Bruylant, Brussels, 2005) pp. 98–100.

89) OHCHR Report, supra note 2, para. 28; Malhotra and Fasel, supra note 2, p. 15.

86)

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Benchmarks are the targets or goals to be achieved by a state. They directly represent human rights treaty standards and in doing so embody the norms to which that state is committed. As will be seen in this part, states could also establish intermediate benchmarks so as to evaluate progress towards the proper benchmarks.

5.1. Developing Benchmarks States must develop benchmarks under the supervision of treaty bodies, as is the case with human rights indicators. Benchmarks correspond to the human rights treaty standards a state has adhered to (or which are customary) and, thus, represent the international law that is applicable to that state. Benchmarks are the targeted performance, while indicators are the actual performance. They usually take the form of either yes or no responses. Benchmarks may vary from state to state with respect to both civil and political and economic and social and cultural rights since states may realise all human rights progressively, as has been suggested. The treaty bodies that have agreed with states on the benchmarks will also have to monitor their achievement.

Besides the benchmarks, it is possible to develop intermediate benchmarks.

While the former represent the states’ positive human rights obligations, the latter are more flexible and allow a more regular evaluation of the progress achieved in the realisation of international human rights. By using intermediate benchmarks, it is possible to monitor progress towards the benchmarks on a regular basis, instead of urging states from time to time to meet them. Intermediate benchmarks should not be overly optimistic since they risk becoming irrelevant.

At the same time, they should be challenging enough since they must be capable of helping a state reach the proper benchmarks. As is the case with human rights indicators, intermediate benchmarks should be time-framed, ideally on a yearly basis. While treaty bodies could examine whether benchmarks are met every five years, national human rights institutions and NGOs could do so for intermediate benchmarks every year, as suggested with respect to human rights indicators.

5.2. Evaluating Benchmark Results Once the benchmarks are established, human rights indicators will be needed to evaluate whether they have been met within the time allowed. The information provided for by the indicators will enable treaty bodies to determine whether a state has complied with the human rights treaties applicable to it. Failure to reach the benchmarks, however, will not automatically result in that state breaching its human rights obligations. Whether such a breach took place will depend on the circumstances and the reasons why the state in question has failed to meet the benchmarks.90 90)

P. Hunt, supra note 6, para. 27.

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If failure is due to reasons beyond its control, it will not be held responsible for it.

However, if failure stems from unwillingness – as can be demonstrated by process indicators in particular – that state will have to account for its behaviour. In addition, since benchmarks constitute not ideals but legal obligations, the burden of proof for explaining why benchmarks have not been met is on the states themselves.

Once the benchmarks have been monitored, new benchmarks will have to be established which can be higher or lower to the ones set beforehand.

6. Conclusion To conclude, in order to ensure that human rights indicators assess state compliance with international human rights properly, it is important that the approach to their development be holistic. While both violations and enjoyment approaches to human rights are necessary so as to fully understand human rights problems, indicators must address both human rights principles and substantive human rights to reflect human rights treaties comprehensively. Also, it is necessary that multiple sources be consulted so as to ensure that human rights- related data is reliable. Moreover, indicators relating to civil and political as well as economic, social and cultural rights should be developed in a similar way. Structural, process and outcome indicators should be combined and equilibrium found between universal and country-specific indicators. Furthermore, human rights indicators should lead to a broad debate that would include not only treaty bodies, international organisations and human rights experts but also states, NGOs and national human rights institutions. This is something that appears to be lacking. So far discussions relating to the development of human rights indicators appear to be the exclusive domain of experts. However, it is essential that states are involved in this process since they will have to contribute to the establishment of indicators that will assess their compliance with international human rights. Since NGOs and national human rights institutions have also a role to play regarding human rights indicators, they should not be excluded from the debate.

Treaty bodies could find human rights indicators a useful instrument for assessing state compliance with international human rights. Developing human rights indicators, however, is a complex affair. Since their number will undoubtedly grow in the future, and since treaty bodies have only limited capacities, it would be better to establish first a reduced list of key indicators. Human rights experts could prepare such a list by establishing indicators that would reflect human rights’ major attributes, as already started by the OHCHR. States could then discuss and adapt them according to their situation. NGOs and national human rights institutions should be involved in the process. The final list should be approved by treaty bodies. The agreed indicators should then be disaggregated into particular groups. While the set of human rights indicators might be limited

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in itself, disaggregating them as much as possible is essential as this is an excellent way to hold states accountable for their human rights obligations. Indicators for evaluating a state’s consideration for human rights principles should also be included. Finally, proxy indicators relating to the political and social background of the state should help interpret the human rights indicators.

Finally, it would be better if human rights indicators were to measure all human rights together, the reason being that they can be similar with regard to different human rights, interrelated as they are. Doing so, however, could be problematic in that a treaty body is only competent to monitor abidance by the treaty under which it has been created. Therefore, before any reform of the treaty body reporting process, human rights indicators should be established per human rights treaty. In the future, they could, of course, take advantage of a reform that would divide state reports into a common core document and treaty-specific targeted documents.91 While the list of key human rights indicators could be attached to the former, it could be completed by treaty-specific indicators in the latter. So doing would enable treaty bodies to be aware of the general human rights situation in a state and request additional information where necessary. In this way, human rights indicators could be an instrument for better assessing state’s compliance with international human rights.

91)

See Chairpersons of the Human Rights Treaty Bodies and Inter-Committee Meeting of the Human Rights Treaty Bodies, Harmonized guidelines on Reporting under the International Human Rights Treaties, Including Guidelines on a Common Core Document and Treaty-specific Targeted Documents. Report of the Secretariat (Report presented at the 17th meeting of chairpersons of the human rights treaty bodies and the 4th Inter-Committee Meeting of the human rights treaty bodies) 2005, HRI/MC/2005/3.