Finnish Exceptionalism at Play? The Effectiveness of the Recommendations of UN Human Rights Treaty Bodies in Finland

Abstract

Finland is generally regarded as a country especially inducive to the impact and effectiveness of international human rights law. This article examines whether this is also the case for the recommendations of UN human rights treaty bodies issued in the context of the process of state reporting. The objective is to elucidate the factors that contribute to the (in)effectiveness of these recommendations by contrasting the Finnish experience with that of the Netherlands and New Zealand. In this way, the article proposes several measures that could serve as an inspiration for Nordic and other countries, in addition to potentially strengthening the impact and effectiveness of the reporting process and the recommendations at the national level.

Keywords:

• Human Rights Treaty Bodies
• Concluding Observations
• Implementation
• State Reporting
• the Netherlands
• New Zealand

Acknowledgements

The author would like to thank Prof. Dr. Lauri Hannikainen, Dr. Miko Lempinen, Prof. Dr. Tuomas Ojanen, Dr. Miia Halme-Tuomisaari and the two anonymous peer reviewers for their valuable comments and suggestions on earlier versions of this article. All errors remain the author's sole responsibility.

Notes

1. The latter view as to a crisis situation and “impending deadlock” of the treaty body system was already expressed by Glukhov in 1989 (UN 1989, para. 7).

2. For recent discussions of the functioning of the treaty body system, see Cherif Bassiouni and Schabas (2012), and Keller and Ulfstein (2012).

3. ICERD, 660 UNTS 195 (opened for signature 21 December 1965, entered into force 4 January 1969); ICCPR, 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976); ICESCR, 993 UNTS 3 (opened for signature 16 December 1966, entered into force 3 January 1976); CEDAW, 1249 UNTS 13 (opened for signature 18 December 1979, entered into force 3 September 1981); CAT, 1465 UNTS 85 (opened for signature 10 December 1984, entered into force 26 June 1987); and the CRC, 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990).

4. One of the few exceptions is the study undertaken by Heyns and Viljoen from 1999–2001 on the impact of UN human rights treaties in 20 countries. However the focus of the study fails to provide an in-depth analysis of the impact of COs as such (Heyns and Viljoen 2002). Other studies with a smaller comparative scope include Theytaz-Bergman (2009) and Byrnes (2000).

5. This definition mirrors the modalities of impact in Heyns and Viljoen (2002 485–486).

6. According to Raustiala “an effective rule is simply a rule that leads to observable, desired behavioural change. Effectiveness is the measure of that change” (Raustiala 2000, 394 and 396).

7. The government officials were from the Ministries for Foreign Affairs, Justice, Labour, the Interior, Social Affairs and Health, and Education and Culture.

8. Representatives from the following NGOs were interviewed: Finnish League of Human Rights, Amnesty International, the Coalition of Finnish Women's Associations (NYTKIS), Unicef, Central Union for Child Welfare, UN Association Finland and SETA (an LGBTI Rights NGO).

9. European Convention on Human Rights, Rome, 4.XI.1950 (opened for signature 4 November 1950, entered into force 3 September 1953). See Rosas (2001, 310–311) and Husa (2011 208–209).

10. See also an email to the author from Frans Viljoen on 19 April 2011 in which he confirmed that this quote primarily applies to these countries.

11. The critique of the HRC during the discussion of the state report in 1990 concerning the restrictions to travel abroad was referred to in the 1997 bill amending the Passport Act, while the HRC's 1998 COs were mentioned in the 2001 bill establishing separate facilities for immigration detention: International Law Association (2004, paras. 158 and 161–162).

12. For a more elaborate account, see Krommendijk (2014). See also Krommendijk (2012a; 2012b).

13. ICERD (signed on 6 October 1966 and ratified on 14 July 1970), ICESCR (signed on 11 October 1967 and ratified on 19 August 1975), ICCPR (signed on 11 October 1967 and ratified on 19 August 1975), CEDAW (signed on 17 July 1980 and ratified on 4 September 1986), CAT (signed on 4 February 1985 and ratified on 30 August 1989) and CRC (signed on 26 January 1990 and ratified on 20 June 1991). Finland signed – but has not ratified – the Convention on the Rights of Persons with Disabilities (CRPD) on 30 March 2007. It has not signed the Convention on the Rights of Migrant Workers.

14. While the ICERD and ICESCR were incorporated with a government decree or statutory order, for the more recent human rights treaties an Act of parliament was used. Nonetheless, incorporation is nothing more than a “blank legislative act” which simply pronounces the treaty to be part of Finnish laws (Rosas 1988, 428; Ojanen 2009, 197).

15. One of the aims of the reform was to enhance the domestic protection of human rights to a level higher than the minimal level required by the ECHR so as to diminish the need for individuals to go to Strasbourg (Rosas 2011, 290; Heyns and Viljoen 2001, 525).

16. In addition, both the Chancellor of Justice and the Parliamentary Ombudsman have an express constitutional task to monitor “the implementation of basic rights and liberties and human rights” in the performance of its duties (Sections 108 and 109).

17. Since the beginning of the 2000s, the task for reporting has been entrusted to the Unit for Human Rights Courts and Conventions within the Legal Service.

18. These data were obtained by comparing the due date for the submission of the reports under the respective treaties with the actual submission by the Finnish government. The deadlines and the reports can be retrieved via “Reporting Status” (2013).

19. This was noted by several interviewees. The Unit is responsible for the negotiation and ratification of international human rights treaties as well as the handling of individual complaints before the ECtHR and treaty bodies.

20. The comparative study included Sweden, the Czech Republic, Australia, Spain and Canada.

21. Since 2000, the Ministry for Foreign Affairs has at times tried more “intensified monitoring” by sending reminders and request for written information to the ministries about the implementation of the COs (UN 2001, para. 299). Interviewees noted that this was not entirely successful.

22. In February 2008, for example, a seminar was organised about violence against children (UN 2008b, para. 106).

23. As a legal basis for this action plan, the government referred to, amongst others, the COs of the six treaty bodies, including recommendations to increase human rights awareness (Justice Ministry 2012, 22 and 26).

24. It was, for example, argued that replying to the List of Issues (i.e. responding to a set of questions of the treaty bodies on the basis of the state report), “amounts to a new report and unreasonably increases the workload” (Foreign Affairs Ministry 2012, 2).

25. Only a small minority of the officials were critical about the actual results in comparison with the time spent on the reporting process. Several officials acknowledged that a substantial number of officials who had not been on the government delegation did the minimum and provided short answers. These officials are not interested in the process as such and primarily see reporting as a burden.

26. The Bill Drafting Instructions (Helo), for example, provide that: “If the Bill is significant in view of fundamental rights, care should be taken also to avoid controversy with the international human rights obligations binding on Finland. If necessary, the praxis of international human rights bodies, such as the European Court of Human Rights, should be discussed” (Justice Ministry 2006, 26).

27. The 2004 report of the International Law Association noted that there are “a significant number of cases” in which the Constitutional Law Committee used the output of treaty bodies, on almost all occasions the views of the HRC. Only one of the 13 cited opinions mentioned the COs for Finland (those of CESCR) (International Law Association 2004, para. 160).

28. In these COs, the CERD noted that the definition was “too restrictive” (see UN 2009, para. 13). In its judgment of 26 September 2011 (KHO:2011:81), the court adopted a wider definition than the Sámi Parliament in line with the COs by also considering the self-identification of individuals (UN 2012, para. 12).

29. Besides the Parliamentary Ombudsman, Finland also has an Ombudsman for Gender Equality and for Minorities.

30. The League was especially focused on racial discrimination and the ICERD and ICCPR. It wrote its first report for the ICCPR in 1989 and submitted its last alternative report to the CESCR in 2000 (Heyns and Viljoen 2002, 284–285).

31. Amnesty has been fairly active with respect to violence against women since 2004. More recently, it also used several CAT COs from 2005 and 2011 and CRC 2011 in relation to the criminalisation of torture, the detention of asylum children, the access to a lawyer for minor offences and the exclusion of evidence obtained through torture. See, for example, the letter with respect to the detention of asylum children of 21 June 2012 (available online at SM072:00/2011 at www.amnesty.fi/kannanotot/lausunto-sisaministeriolle-lasten-sailoon-otosta/files/sailoonotto.pdf/attachment_download/attachedFile, accessed 12 June 2013).

32. There were two representatives from the Central Union for Child Welfare as well as representatives from Unicef, Save the Children, The Federation of Mother and Child Homes and Shelters and a youth organisation.

33. A brochure of the Union mentioned that it monitors the COs (Central Union for Child Welfare 2008, 9).

34. CRC member Krappmann participated in the seminar. See the letter of the Chair of the Committee Doek to Ms. Kuikka of 12 October 2006 (available online at http://asiakas.poutapilvi.fi/ltk/palve/uploads/726_ORG_, accessed 12 June 2013).

35. At the end of the 1990s, there was a practice of organising press conferences with a view to informing the media, officials, NGOs and other interested parties and to encourage the media to write about the dialogue and the COs. This practice was abandoned because of the media's limited interest.

36. Several Dutch courts cited the COs of the CEDAW Committee in their judgment that the existence of a political party (SGP) which excludes women from being eligible for election cannot be accepted in the light of the prohibition of discrimination and CEDAW, Article 7 specifically.

37. Ineffective COs include, amongst others, accelerated asylum procedures, the explicit mentioning of race and ethnic origin as ground of discrimination in Section 5 of the Constitution, the definition of Sámi, the gathering of statistical data on ethnic background, the ratification of the International Convention on Migrant Workers, the withdrawal of the reservations to ICCPR, the provision of more resources to Ombudsman institutions and the introduction of a minimum wage.

38. A 1995 government report on children's policy mentioned that it was necessary to have one. Parliament had also required the government to establish one (UN 1996c, para. 14. Niemi 2003, 36. Kurki-Suonio 2010, 328).

39. The Finnish practice was to stick to general provisions where possible in order to decrease the number of provisions and, hence, interpretational problems (UN 1998c, para. 45).

40. Opening Statement by the Delegation of Finland, 18 May 2011 (available online at www2.ohchr.org/english/bodies/cat/docs/statements/Statement_Finland_CAT46.pdf, accessed 2 June 2013, 1).

41. Amnesty International, for example, organised a seminar about it in 2007 just before the elections, which was also attended by Brax, who was then a member of parliament.

42. Note that the Ombudsman for Minorities replaced the Ombudsman for Aliens in 2002. The mandate was extended to cover ethnic minorities and ethnic discrimination. This was earlier welcomed by the CERD (UN 1999a, para. 72).

43. The reason for its establishment was primarily to fulfil EU requirements under the 2000 EU Race Directive.

44. The COs have not been effective in securing a policy or legislative change with respect to the controversial issue. Neither has the ILO Convention 169 been ratified. The COs and other international criticism have, nonetheless, been one factor that has contributed to the numerous reports and legislative attempts to settle the question of Sámi land rights. For a good overview of the initiatives employed and the reasons for the ineffectiveness of this CO, see Semb (2012, 140–145).

45. Miko Lempinen (2008) wrote separate reports in a series entitled “The Activity, Progressiveness and Consistency of the Human Rights Policy of Finland” about these issues.

46. The media attention on this issue has focused on the ECPT (“Anti-torture committee criticises Finnish prison conditions again” 2009); see also Foreign Affairs Ministry (2009, 82).

47. The COs of the CRC Committee have, for example, contributed to the prohibition of corporal punishment and public education campaigns against child abuse in the Netherlands and New Zealand. In the Netherlands, the COs were also one stimulating factor for initiatives in relation to human rights education. Likewise, a Children's Ombudsman has been created (in the Netherlands) or strengthened (in New Zealand) partly as a result of the COs of the CRC Committee.

48. The system of civilian service was reviewed in 2004 and eventually led to the adoption of the Non-Military Service Act 1446/2007 that reduced the length of the alternative service from 395 to 362 days, which equals the longest military service. The Minister of Labour, Cronberg (Green), also made clear that the 2007 amendment was “a question of human rights” and noted that “Finland has been blacklisted by international human rights organisations. The new law is a step in the right direction. Non-military service should not be punitive” (see www.mol.fi/mol/en/01_ministry/06_press/01_2006/2007-10-19-01/index.jsp).

49. This legalism goes back to the Russian times when Finland was a Grand Duchy within the Russian empire and defended its autonomy by arguing that its constitutional guarantees were binding and should be fulfilled by the Russian authorities (Ojanen, 2012, 98).

50. Judgments of the ECtHR and Views of the HRC have generally been complied with and remedial action has been taken by the government (Rosas 2001, 309–310; Heyns and Viljoen 2001 516).

51. Husa, Nuotio, and Pihlajamäki (2007, 10 and 21) also noted that the Finnish system has been more receptive towards the ECHR and ECtHR than those two countries, as well as Sweden.

52. The Danish scholar Wind noted that “controversial and dynamic legal interpretations of vague European treaties and legislation by foreign judges are bound to fan the flames of the debate” (Wind 2010, 1060).

53. Ojanen also referred to a desire to belong to the West as an important element of Finland's national and cultural identity since the middle of the 19th century (Ojanen 2012, 98).

54. One interviewee pointed to populist speeches in which human rights are discredited as only relevant to criminals and immigrants. Another held that human rights are increasingly seen as limiting the decision making capacity of the legislature. See also “Editorial note” (2012).

55. In addition, “answers given in the hearing where not sufficiently taken into account”. This was stated in a five-page commentary which addressed misunderstanding and mistakes in seven 2011 COs of the CRC Committee. See Väärälä and Kahiluoto (2011), provided during the interview.

56. The head of delegation noted, for example, with astonishment that one recommendation had not been addressed in any area of concern beforehand (UN 1999b, para. 3). The Ministry for Foreign Affairs was critical about this, because the state party should have had an opportunity to express its views, since this is a “basic criteria for equal and fair proceedings” (Foreign Affairs Ministry 2012, 3).

57. The COs should also “prioritize key issues in a realistic manner” by including 3–5 recommendations that “require immediate measures”. The views of treaty bodies in individual communications were also said to be sometimes “too general or imprecise” and lacking “detailed reasoning”.

58. There was a minority of Finnish officials who argued that the deficiencies indeed affected the authority and credibility of the treaty bodies negatively.

59. This is coupled with the idea that human rights education is there especially for people in less developed countries (Toivanen 2007, 39–40).

60. Finnish government officials also contrasted the non-binding recommendations and the deficient functioning of the UN human rights treaty bodies less with the binding judgments of the ECtHR than their Dutch counterparts.

61. Rosas noted as “a distinctive Finnish feature” the invocation of several human rights instruments during legislative processes or before the courts (Rosas 2001, 297 and 300).