Electing the experts: Expertise and independence in the UN human rights treaty bodies

Abstract

Independent experts are employed in international organizations to carry out a variety of functions, including conducting independent evaluations of state performance in a given policy area. In the field of human rights, a well-known example of the use of independent expertise in public organizations is that of the United Nations treaty bodies, committees of independent experts in charge of monitoring state compliance with the major United Nations human rights treaties. Considering the sensitive tasks that these experts perform, and the fact that they are elected by states, the question of whether they actually possess the required levels of independence and expertise to fulfil their role arises. This article proposes and applies a framework to study the formal and informal processes leading to the appointment of expert committees in international bodies, and to assess their level of expertise and independence. Data were collected by means of an original survey and 40 semi-structured interviews. The article shows that the overall level of independent expertise possessed by committees is surprisingly high when considering the highly political electoral process. Therefore, it argues that to study the expertise and independence of expert committees, one should conceive of them as groups that might be able to maintain a certain independence from the states that have elected them.

Introduction

Independent experts have long been employed by public organizations to carry out a variety of functions. These functions include providing policy advice, substantiating the choices made by decision-makers or conducting independent evaluations of state performance in a given field or policy area. The use of independent expertise is generally advocated to provide a better-informed judgement or assessment than would otherwise be the case, or to legitimize the choices made by decision-makers (Boswell, 2008, 2009; Dunlop, 2010; Feldman and March, 1981; Haas, 1992; Haverland, 2009; Nowotny, 2000). The use of expertise in public bodies is, however, potentially controversial. How, and by whom, are these experts selected? What criteria are employed for their appointment? How is their independence ascertained and maintained?

In the field of international human rights, a well-known example of the use of independent expertise in public organizations is that of the United Nations (UN) treaty bodies. The 10 major UN human rights treaties provided for the establishment of committees of independent experts, called treaty bodies, in charge of monitoring state compliance with the respective treaty. The main tasks of treaty bodies consist of: examining reports by state parties on the implementation of the respective treaty; receiving complaints from individuals for alleged treaty violations by a state party; conducting country inquiries on their own initiative; and publishing general comments, which are documents concerning the interpretation of human rights treaty provisions. ¹

The independent experts composing the treaty bodies are nominated by states among their nationals, and are subsequently elected by the whole membership of state parties to the treaty. As a precondition for their appointment, these individuals must possess the relevant human rights expertise to carry out their tasks and are required to act in a personal capacity, independently from the state that has nominated them. Yet, the sensitive tasks that they are required to perform, and the fact that these experts are directly nominated by states, warrant the question of whether they actually possess the required levels of independence and expertise to fulfil their role.

Against this background, it does not seem far-fetched to assume that tensions between individuals’ formal role as independent experts, on the one hand, and their actual levels of independence and expertise, on the other, might arise. In the case of the treaty bodies, committee members are expected to possess an adequate level of expertise, and to make use of this expertise to formulate an independent evaluation of a country’s performance, free from any governmental pressures. Yet, these experts are nominated and elected by states, which will determine whether they will be renominated, and thus possibly re-elected, for subsequent terms of office. Considering the state-led nature of the electoral process for treaty bodies, then, this article asks: to what extent is the treaty bodies’ electoral process capable of delivering committee members possessing the necessary expertise and independence to perform their role?

The more the subject matter handled by expert committees is perceived by states as sensitive and sovereignty-intrusive, the more one could expect them to design the process in a way that allows them to retain a certain measure of control. Human rights are widely regarded as a matter of national sovereignty: violations committed within a state generally do not have an impact on other countries, and, in many cases, states are themselves the prime perpetrators of human rights abuses. As a consequence, incentives for governments to denounce violations and to voluntarily undergo monitoring procedures are generally low (see, e.g., Dai, 2005; Risse and Sikkink, 1999; Simmons, 1998). For these reasons, states are likely to exert a high level of control over the electoral process for treaty bodies in an attempt to have their national candidates elected. In turn, a higher control by states over this process could mean that experts are not necessarily elected on the basis of expertise considerations, and it could additionally create constraints on experts’ outputs, limiting their independence.

The empirical analysis, however, uncovers a puzzling finding: the selection and election processes for treaty body members are highly politicized, impacted by negotiations and exchanges of votes between countries. In addition, there is variation between the levels of expertise and independence of individual members. Nevertheless, the overall expertise and independence of committees is considered by actors involved in the process to be of a satisfactory level, and the conclusions and judgements of committees are deemed to be objective and well informed in most cases. How can this be explained?

To address these issues, this article proposes a model to study the politics of expertise within international organizations, which finds its roots in an information-processing approach (Blom and Carraro, 2014; Blom and Vanhoonacker, 2014). It sets a framework to study the formal and informal processes leading to the appointment of expert committees, and to assess their overall level of expertise and independence. It argues that to study the expertise and independence of expert groups, one should not look at the individual expert level, but conceive of expert committees as groups that, possibly also owing to the leadership of their chairperson, might be able to maintain a certain independence from the states that have elected them and produce objective judgements.

The treaty bodies system has been in place since 1966. Due to their long-standing existence, the abundance of academic accounts on the establishment and operation of the treaty bodies is unsurprising (see, e.g., Alston and Crawford, 2000; Alston and Goodman, 2013; Bassiouni and Schabas, 2011; Bayefsky, 2001; Keller and Ulfstein, 2012; McGoldrick, 1994; Mechlem, 2009; Nowak, 1993; O’Flaherty, 2002; O’Flaherty and Tsai, 2011). Recent publications on the treaty bodies include work by: Flinterman (2015), who reflects on the functioning of the UN treaty bodies and the challenges that they are currently facing; Creamer and Simmons (2015), who focus on the quality of state reporting in the Committee Against Torture; and Krommendijk (2014, 2015), who assesses the domestic effectiveness of the recommendations delivered in the context of the state-reporting process.

While previous research has shown that criticism exists concerning the actual level of expertise and independence of some committee members (Alston and Crawford, 2000; Bayefsky, 2001; Carraro, 2017; Krommendijk, 2014), no systematic empirical analysis has so far been undertaken to assess the extent to which this is actually the case. In addition, even though the rules governing the election of treaty body members are rather straightforward — as will be further elaborated later — the informal process governing the election of committee members has so far not received empirical attention. On the basis of what considerations do states decide to put forward a certain candidate? What are the criteria employed by member states when deciding for which of the nominated candidates they will vote? What, if any, informal processes take place during the time between the nomination of experts and their election to the respective body?

Understanding the extent to which elected committees are capable of carrying out their tasks, and the reasons why that might or might not be the case, is important not only to better understand and possibly improve the functioning of these mechanisms, but also for broader discussions on the use of expertise in public organizations (see, e.g., Boswell, 2008, 2009; Dunlop, 2010; Feldman and March, 1981; Haas, 1989, 1992; Haverland, 2009; Jasanoff, 1987, 1994, 2003; Schudson, 2006; Weingart, 1999; Wynne, 1989, 2003). What is the best way to select and appoint independent experts in public organizations? What are the consequences of a politicized election process? To what extent are within-group dynamics able to limit the interference of political principals?

In order to investigate the extent to which the electoral process for treaty bodies is capable of delivering committee members possessing the necessary expertise and independence to carry out their role, the current article studies the formal and informal processes leading to the election of committee members, and assesses their level of expertise and independence. It subsequently discusses the extent to which the expertise and independence of committee members can be seen as a consequence of the electoral process. Finally, it explains why committees are overall perceived to issue judgements of adequate quality even though elections are led by political considerations and there is variation in terms of the expertise and independence of individual members.

The levels of expertise and independence of committee members are evaluated by assessing the perceptions of directly involved actors by means of an original online survey and 40 semi-structured interviews. The survey targeted state diplomats working at their countries’ permanent missions to the UN and involved in the functioning of the treaty bodies, while interviews, which were additionally employed to provide further contextualization and background, targeted not only state representatives, but also former and current committee members, staff members of non-governmental organizations (NGOs), and UN Secretariat officials. Reasons for focusing on participants’ perceptions are both theoretical and methodological, as will be further discussed later.

The politics of expertise in public organizations

The use of expertise in public organizations has been widely discussed by scholars. Often, experts are employed by public organizations to carry out a legitimating function (Blom, forthcoming; Boswell, 2008, 2009; Dunlop, 2010; Feldman and March, 1981; Haas, 1992; Haverland, 2009; Nowotny, 2000), increasing the trustworthiness and credibility of decision-making. They can also play an instrumental role in helping a public body accomplish its objectives more efficiently (Boswell, 2008; Dunlop, 2010; Haas, 1992; Haverland, 2009) by ensuring that ‘decisions are based on sound reasoning and empirical knowledge’ (Boswell, 2008: 147). Finally, experts can have a substantiating function by supporting and increasing the authoritativeness of the choices made by the organization (Boswell, 2008). The use of expertise in public decision-making is, however, not free from criticism as technocracy is increasingly being seen as the antonym of democratic accountability (Schudson, 2006; Wynne, 2003).

While the majority of scholarly works on expertise, particularly in the International Relations domain, focuses on the role played by expertise and scientific knowledge in international organizations (for a thorough overview, see Allan, 2018), this article adopts a different approach and proposes studying the process that leads to the appointment of experts, and to subsequently focus on the extent to which this process is capable of delivering members possessing the adequate level of independent expertise to fulfil their tasks, and the reasons thereof. The extent to which appointment procedures for international bodies are influenced by political or expert-based considerations was also the object of an inquiry by Elsig and Pollack (2012): in the context of appointments for judges in the appellate body of the World Trade Organization (WTO), the scholars conclude that the appointment process is highly politicized and does not constitute a search for expertise. This, in turn, was employed as an argument to show that — following a principal–agent model — member states ‘seek to influence international courts by nominating and appointing international judges whose nationality, judicial philosophy, and views on specific issues most closely approximate their own’ (Elsig and Pollack, 2012: 393). This article takes these arguments a step further with the aim of showing, through the case of UN treaty bodies, how a possible politicization of the electoral process affects the functioning of expert groups, and the extent to which these groups are subject to member-state influence.

When it comes to assessing the independence of committee members, a helpful analytical tool is offered by Blom (forthcoming), who studies the ‘politics of expertise’ within the framework of an information-processing approach to public organizations, as also outlined and applied in Blom and Vanhoonacker (2014) and Blom and Carraro (2014). This approach starts from the assumption that ‘organizations exist in the form of subsequent … episodes of information processing with explicit decisions as transitional and linking events’ (Blom and Carraro, 2014: 5). Organizations decide on the rules and practices prescribing their functioning, particularly with regard to the way in which information is to be collected, processed and analysed. To study the establishment and daily operations of expert groups, and, in particular, to assess the extent to which political principals retain a measure of control over the functioning of the expert groups that they constituted, Blom (forthcoming) employs a distinction between constitutive and operational politics of expertise. Constitutive politics of expertise:

refers to the (sometimes politically charged) processes by which political principals formally decide on the rules covering the use of expert groups.… Political principals may for example decide on who is formally eligible for positions in expert groups/committees; on recruitment procedures; on the overall composition of the expert group (e.g., on gender, interests, or geographical balance). (Blom, forthcoming)

In other words, constitutive politics of expertise is an analytical step employed to study the process through which political principals decide how expert groups are formed, and under what rules and constraints they are to operate. Second, operational politics of expertise ‘refers to the actual organizing and maneuvering of expert groups by civil servants in order to get the desired outcomes/advices — and this thanks to, and in spite of the rules fixed during the constitutional phase’ (Blom, forthcoming). It thus focuses on the extent to which the rules set during the constitutional politics phase are able to constrain the actual functioning of expert groups, or provide opportunities for civil servants to manoeuvre these groups.

While previous work by Blom and co-authors (Blom and Carraro, 2014; Blom and Vanhoonacker, 2014; Blom et al., 2014) focuses on developing and applying the broader information-processing framework as such, this article is the first to focus on Blom’s (forthcoming) politics of expertise approach and apply it to a concrete case study. As such, this article is of an exploratory nature, probing into the usefulness of employing such an approach when studying the formation and functioning of expert groups. It probes, in particular: (1) the assumption that independent expertise is to be seen as the outcome of a group endeavour, rather than simply the sum of the input provided by individual experts (Blom, forthcoming; Jasanoff, 2011; Mieg, 2001); and (2) the validity of findings from research on the social psychology of small groups, especially those related to empirical research on expert groups — as elaborated in the following paragraph.

Franz and Larson (2002) argue that groups are generally able to reach better-quality judgements than the single individuals composing these groups. When groups are comprised by even just one expert member (among the non-expert ones), they are likely to take the correct decision as experts are able to bring to the fore what Stasser and Stewart (1992) call a ‘hidden profile’. A hidden profile refers to a situation in which members of a group are not aware of the correct choice before engaging in a discussion, and they need to pool their knowledge together in order to correctly grasp the situation. In a hidden profile situation, group members tend to share with each other information that has already been shared within the group, rather than bringing forward their own unshared contributions (Franz and Larson, 2002; Stasser and Stewart, 1992). Expert members, particularly when taking up a leading role in a group, such as that of chairperson, are likely to elicit a high-quality decisional outcome by bringing forward the unshared information that they possess and encouraging group discussions (Franz and Larson, 2002). Moreover, research on the social psychology of expert groups has empirically shown that groups with a heterogeneous composition generally perform better than homogeneous ones (Woolley et al., 2008: 367), under certain conditions. Specifically, good performance in groups needs differentiation not only in the content-related expertise of members, but also as concerns other skills: the good functioning of expert groups requires ‘members with the intrapersonal diversity or breadth of personal skill and experience to help bridge among others with more narrow expertise’ (Woolley et al., 2008: 356).

The concepts of constitutional and operational politics of expertise as explained earlier are taken in this article as a starting point to study the extent to which the election process for treaty bodies is capable of delivering members possessing the appropriate independence and expertise to perform their role. In this context, the rules governing the electoral process of committee members are seen as the outcome of the constitutive politics of expertise of the treaty bodies, during which political principals, in this case, the governments of the state parties to the treaties, decided on the formal rules governing the selection and election processes for committee members. As will be outlined later, these provisions are rather open: they require states to select candidates from among their nationals, and require these candidates to possess the relevant human rights expertise and to be of a high moral standing. A list of nominated experts is then drawn, from which state parties elect their preferred candidates during a plenary meeting. After discussing these formal rules, this article investigates the operational politics of treaty bodies’ elections, namely, the informal process through which governmental officials: (1) select an expert candidate among their nationals; and (2) try to influence the outcome of the elections once a list of nominees is drawn. It thus shows how the final composition of committees reflects the way in which states were able to influence the appointment process. As a final step, this article assesses how the outcome of the electoral process affects the treaty bodies’ daily activities: to what extent are committees, as a whole, capable of producing expert output, and of limiting the influence of the states who have elected their members? ²

It must be acknowledged that treaty bodies are not simply groups of policy experts, but quasi-judicial bodies tasked with providing authoritative interpretations of international legal provisions. However, these committees are composed not only by legal scholars and practitioners, but also by former diplomats, medical professionals or civil society actors. Whereas this variety of backgrounds may very well bring an added value to within-group discussions, it makes these bodies less comparable to more traditional judicial courts. In addition, the tasks performed by committees are akin to what Laughlin and Ellis (1986) call judgemental tasks: in judgemental tasks, there is not one demonstrably correct solution, and the successful performance of these groups consists in finding a consensus among members. In the case of the treaty bodies, a consensus must be found among committee members on the interpretation to be given to a certain treaty, which cannot be reduced to a binary right/wrong decision.

Data sources and methodology

Data sources

This study combines the strengths of different data-collection methods. Respondents’ views were collected by means of an online survey and 40 semi-structured interviews. This data-collection strategy allows the researcher to combine the strengths of the survey — namely, a standardized, quantifiable measurement of perceptions carried out across a relatively large number of participants — with those of qualitative interviews, which provide the chance to understand the thought processes and reasons behind certain perceptions, as well as provide further contextualization (Day et al., 2008; Goertz and Mahoney, 2012; Harris and Brown, 2010).

The survey was distributed via email between July and December 2015. The target population consisted of all state delegates in charge of the human rights portfolio at their country mission to the UN offices in Geneva at the time the survey was sent out (177 state delegates). The survey was sent to all the individuals belonging to the target population and for whom contact details could be retrieved (157 state delegates). All feasible efforts were made to ensure that the largest possible number of contact details could be retrieved. These efforts included extensive Internet searches, telephone calls and the use of the researcher’s professional network. The survey achieved a response rate of 25.48%, and 40 observations were collected in total. ³

In addition to the survey, 40 semi-structured interviews were conducted between February 2014 and June 2016. The interviews targeted a larger population than included in the survey as their aim was not only to further probe into the beliefs of respondents, but also to provide contextualization and examples. Interviewed actors therefore included state delegates to the treaty bodies belonging to all regional groups, treaty body committee members and, additionally, Geneva- and New York-based UN Secretariat staff officials and NGO representatives. Appendix 1 provides a list of all interviews conducted, indicating professional affiliation and, in the case of state delegates, regional group of belonging. For reasons of confidentiality, no names, dates or locations of interviews are provided as this could lead to the identification of respondents. In-text references to interviews employ codes indicating the professional affiliation of respondents (D = state delegate; C = committee member; S = Secretariat official; N = NGO). The following section discusses in further detail how the survey and interviews were employed to collect the necessary data.

Measuring the independence and expertise of committee members

This study starts from the assumption that possible tensions might exist between the formal roles of reviewers as independent experts, on the one hand, and their actual level of expertise and independence, on the other. It thus investigates the extent to which the formal and informal parts of the selection and election processes for committee members are capable of delivering experts possessing an adequate level of independence and expertise.

As discussed in the introduction to this article, in this study, the assessment of the independence and expertise of reviewers is performed via an analysis of involved actors’ perceptions. While involved actors’ perceptions might not necessarily correspond to the actual levels of expertise and independence of committee members, this article argues that the focus on respondents’ perceptions is preferable for both methodological and theoretical reasons. From a methodological point of view, judging the level of independence of committee members would be overly ambitious, if not unfeasible, for an external researcher. It would be impossible to objectively and undoubtedly establish whether a committee member acts in line with governmental guidelines or not. While directly involved actors can, of course, not achieve certainty on this point, they are nevertheless better positioned to judge whether, overall, committee members act in a manner that appears independent. Similarly, the level of expertise possessed by treaty body members is best assessed by involved actors themselves. On a more theoretical level, expertise is conceived here as a relational concept: to be an expert means to be recognized as an expert by the relevant audience (see also Collins and Evans, 2008; Martin, 1973). Additionally, what is of importance for the good functioning of these mechanisms is for directly involved actors — particularly the states subject to examination by the treaty bodies — to believe that the experts possess the adequate level of expertise and independence to fulfil their roles: due to the non-binding nature of their output, these instruments can only contribute to the promotion of human rights if involved actors are seriously committed to the process (Creamer and Simmons, 2015; Donoho, 2006). Hence, in the context of public bodies — within and outside the human rights domain — what is of importance is not so much (or at least not exclusively) the objective level of expertise possessed by these individuals, as the degree to which they are perceived and believed to possess adequate expertise by the recipients of their judgements or assessments (see also Haverland, 2009). In the case of treaty bodies, then, it is crucial that the states subjected to scrutiny recognize and acknowledge these mechanisms as carriers of genuine and politically independent expertise.

The empirical analysis of this article begins by studying the process by which committee members are recruited and appointed by member states. On the basis of UN official documentation, the rather straightforward rules governing elections are outlined. Subsequently, the article considers how the process functions in practice (i.e. the operational politics of expertise). To do so, semi-structured interviews were conducted with different actors involved in the process, namely, election officers in states’ permanent missions to the UN in New York (where most elections take place), human rights officers in states’ permanent missions in both Geneva and New York, and UN Secretariat officials in both cities.

The article then evaluates the extent to which committee members are perceived to act independently from their countries of origin, employing survey and interviews. Table 1 reports the survey question asked in this regard.

Table 1.

Committee members’ independence survey question.

Survey question	Answer categories
In your view, to what extent do the members of the [treaty body of reported involvement] act independently from their own government?	None of them act independently Some of them act independently Most of them act independently All of them act independently

The answer categories reported in Table 1 were chosen to allow respondents to differentiate whether none, some, most or all individual committee members act independently from their own governments. Such differentiation in answer categories was employed to highlight possible variation between individual levels of independence. Additionally, interviews were employed to further probe into respondents’ views, allowing the obtaining of further elaboration and contextualization.

After having assessed the extent to which committee members are seen as independent, the degree to which they are perceived to possess adequate expertise to perform their role is investigated. First, interviews are employed to assess what expertise means to respondents. As a second step, the survey and interviews are employed to assess the extent to which reviewers are seen as possessing expertise. Table 2 reports the survey question asked with this aim.

Table 2.

Expertise survey question.

Survey question: How would you in general assess …	Answer categories
The expertise of the members of the [treaty body of reported involvement]	Very low Rather low Rather high Very high I do not know

In this case, answer categories focus on the overall level of expertise possessed by the group as the assessment on countries is made by the group as a whole, adopting decisions by consensus. Qualitative interviews were additionally employed to allow respondents to further elaborate on the levels of expertise they observe within committees, giving them the option to elaborate on possible intra-group variation.

Finally, this article investigates the extent to which the assessed level of expertise and independence of committee members can be considered a result of the electoral process, and the extent to which expert groups are protected from member-state influence.

Assessing the independence and expertise of treaty body members

The selection and election processes for committee members

As anticipated earlier, the rules for the election of committee members — the outcome of the constitutive politics of expertise — are rather straightforward. Each state party to one of the 10 human rights treaties for which a treaty body exists can nominate an expert among their nationals. A list of nominees is drawn, from which states elect their preferred candidate during a Meeting of States Parties, which generally takes place in New York (with the exception of elections to the Committee and Subcommittee Against Torture, which take place in Geneva). Experts are required to act in a personal capacity, independently from the state that has nominated them and free from any political pressures. Experts serve four-year terms, which are renewable. ⁴ Against the background of these procedural rules, the current section explains how the electoral process functions in practice, with particular attention to its informal parts — the operational politics of expertise. This section begins by discussing the national selection of candidates, and then proceeds to explain the process leading to the election day.

National selection

No formal rules prescribe how the national selection process for committee members is to be carried out, and full discretion is given to states. In practice, two different scenarios take place: some countries (reportedly the minority) employ a formal selection procedure, while others deal with the matter in a more informal manner. It is up to individual state parties to decide whether they want to put forward a candidate for election at all.

Countries that employ a formal selection procedure generally open a call for applications, interested experts then send their résumés and interviews are held with the most promising candidates. The final selection and appointment of national candidates is normally made by the Ministry of Foreign Affairs (Interviews D8, D16, D20, S4, S7, S8, S9). In this regard, the only positive example mentioned by interviewees was that of the UK, brought forward as a prominent case of a country employing a very open and transparent national selection process, which publishes an advertisement for the position in major newspapers (Interviews S7, S9).

In contrast, most countries reportedly engage in more informal processes for the appointment of candidates. In some cases, these processes involve consultations with different governmental and non-governmental actors, whereas in other cases, candidates either directly approach the ministry expressing their interest or are approached by the ministry (Interviews D1, D5, D8, D17, D19, C4, S4, S6, S7, S9). In these cases, there is ‘no publicly visible accountability mechanism for the nomination and appointment process to the treaty bodies. It is a state-driven process’ (Interview S6). Respondents believe that ministries often appoint candidates who are close to the government and whom they can control (Interviews D8, S4, S6, S9). This situation reportedly happens in countries from all regions of the world.

The process leading to the election

Once a list of nominees has been drafted and published, states elect their preferred candidate during a Meeting of States Parties. However, from the official communication of the names of running candidates to the election, many months pass, during which candidates engage in an intensive electoral campaign, supported by their state’s permanent mission in New York (or, in the case of the Committee and Subcommittee Against Torture, Geneva). The following paragraphs outline the process.

Once the names of running candidates are known, state delegations send a notice to other permanent missions presenting their candidates, generally attaching their résumé and asking states for their support (Interviews D15, D17, D21). At this stage, a series of bilateral meetings starts. These meetings are held between the candidate, accompanied by his or her country’s election officer, and the election officers of other state delegations, at times, accompanied by the permanent mission’s human rights officer. During these meetings, candidates introduce themselves to delegations, outlining their credentials and explaining why they would make good committee members. Election officers who meet with these candidates then report back to their capitals. Electoral campaigns start up to eight or nine months in advance of the elections, and candidates generally visit New York (or Geneva) two or three times during this period (Interviews D10, D11, D15, D17, D19, D21, C4, S11). This phase is reportedly characterized by intensive negotiations between states (Interviews D2, D5, D6, D8, D10, D11, D12, D15, D18, D19, D21, C2, C4, S7, S9, S11).

When it comes to deciding for which candidate to vote, respondents almost unanimously mentioned that the choice largely depends on exchanges of votes between states. Indeed, countries reportedly offer their support for a state’s treaty body candidate in exchange for the promise of a vote in other UN bodies, such as the UN Security Council or the Human Rights Council (Interviews D5, D6, D8, D12, D15, D18, D19, D20, D21, C2, C4): ‘For many countries, the guiding question will not be “Is this person the most qualified person to sit on a committee?”, but “Is this person somebody who can help us get a vote for …”’ (Interview D19). One interviewee even reported that these agreements are often put in written form: ‘It is almost a contract’ (Interview D20). Such contracts can nonetheless be broken, as some countries reportedly ‘sell their votes to more than one party’ (Interview D20), and it remains unknown for whose candidate they eventually voted.

Besides the explicit exchange of votes, bilateral relations between countries are taken into consideration when deciding for whom to vote. It was, for example, mentioned that countries with tense diplomatic relations would generally not vote for each other, regardless of the quality of their candidates. Countries tend to vote for states with which they are in good relations, or with whom they wish to improve their diplomatic relations (Interviews D2, D15, D16, D18, D19). Finally, it was mentioned that if a committee member from country X criticizes country Y during a treaty body session, country Y is highly unlikely to ever vote for candidates from country X in the future (Interview D15).

In terms of substantive criteria, expertise was mentioned by a large number of respondents as a factor that influences voting behaviour (Interviews D9, D15, D16, D17, D18, D19, D20, D21, C4). Criteria that are taken into account in this regard are: generally, knowledge in the field of human rights and, specifically, on the subject matter of the treaty; their publications record; and their level of professional experience (Interviews D9, D18, D19, D21). Considerations of expertise are, however, secondary to the political ones outlined earlier. For example, interviewees reported that several countries would vote for the candidate with the highest level of expertise, but only one chosen from among those coming from countries with whom they are on friendly terms (Interviews D15, D19). Finally, other criteria that are reportedly taken into consideration during voting are related to ensuring an adequate balance within the committee membership, generally in terms of geographic representation, although, at times, also in terms of gender and age (Interviews D15, D18, D19, S8, S11).

The process leading to the election of members to treaty bodies is therefore highly politicized:

From this point the politicisation starts, for example, when you come and choose a member to a committee, for example … the Committee Against Torture, and his country … has a huge history in torture, for example, but he gains [the election].… Why he gains? Because his country did a good lobbying for him. (Interview D12)

I was discussing yesterday with a member of [a committee ⁵ ]. We were talking exactly about elections and [this person] mentioned informally that the way these elections are run is a sort of horse trading, and mentioned that meeting with other governments, with other missions, presenting their programme, the mission said ‘we will vote for you only if [your country ⁶ ] votes for this other candidate’, and [this person] claimed that since [his/her country] does not exchange votes, some delegations refused voting for [him/her] on this basis. (Interview S11)

Politics, in many cases, trump expertise. That is my sense and that is my fear on this issue. There was one election when … there were doubts as to whether [one of] the candidates was eligible because … there were legal proceedings against him or he was condemned or something like that, and that was the candidate who got the majority of votes through the regional group. (Interview S11)

These findings present similarities with those by Elsig and Pollack (2012) in the context of WTO judicial elections as the authors conclude that the appointment process of judges is not expertise-based, but highly politicized.

After having illustrated the process leading to the election of committee members, the following section will discuss the degree to which committee members are perceived to act independently from their own governments, while the subsequent section will discuss their expertise, as perceived by involved actors.

The independence of committee members

In a perhaps surprising fashion, given the findings presented earlier, Figure 1 shows that an overwhelming majority of survey respondents perceives most or even all committee members to act independently from their home governments, a small minority believes that only some do, and no one believes that this is never the case.

Figure 1.

Independence of committee members.

These findings appear unexpected when put in relation to the earlier discussions, where it became clear that the selection and election processes for committee members are often highly politicized. Interviews were a very helpful tool in explaining these results. Interviewees confirm that most candidates are perceived to act independently (Interviews D1, D2, D3, D4, D5, D6, D16, D17, D19, D20, C1, C3, C4, S2, S3, S5, S6, S9, S11, N1). However, there are instances in which certain committee members are perceived to be working very closely with their own governments, thus acting as a state representative (Interviews D1, D2, D5, D6, D8, D12, D16, D19, D20, C1, C4, S2, S3, S4, S6, S7, S9, S10, S11). In general terms, former or acting diplomats performing the role of committee members tend to attract substantially more criticism than experts with a different background, such as academics or lawyers (Interviews D19, S3, S7, S9, S11). Finally, an apparent lack of objectivity is, at times, seen as a consequence of the committee member’s own political ideas, rather than his or her country’s official position (Interviews D1, S4, S11).

In sum, the fact that the election and selection processes for committee members are primarily led by political considerations seems to only partially affect the independence of candidates, who are, indeed, perceived to act as governmental representatives in some cases, yet are seen as independent actors in many other instances.

Assessing the expertise of reviewers

What is expertise?

Interviewees largely agree on what constitutes expertise in the context of the treaty bodies. The most important factor is unsurprisingly considered to be subject-matter expertise, namely, knowledge of the specific issue (Blom, forthcoming). In the present case, subject-matter expertise relates to human rights knowledge in general, ideally acquired through a combination of formal training and practical professional experience, and possibly attested to by concrete professional achievements (Interviews D6, D15, D16, D17, D18, D19, D20, C2, C3, C4, S6, S9, S11). Particularly in the case of treaty bodies, legal expertise is highly valued. Even though no interviewee claimed that committees should be exclusively composed of lawyers, many found that the presence of lawyers is essential (Interviews D19, C2, C3, C4, S7, S11). This is the case because the main task of committee members is to interpret legal treaties, and solid knowledge of international law is therefore considered to be necessary (Interview C2). In addition, it is deemed crucial for committee members to possess expertise on the specific sets of rights monitored by a certain treaty, such as torture, the rights of the child or rights of persons with disabilities, just to name a few (Interviews C4, S6, S7, S11).

However, some interviewees mentioned that human rights knowledge is not the only important criterion for assessing expertise. First, familiarity with the diplomatic environment is necessary (Interviews D6, D15, D17, C4, S2). This is because committee members should be able to understand diplomatic culture and language in order to better operate within the system:

You need to have an expert which is able to interact with government officials, with high-level government officials and with technical-level government officials.… You need to know how to draft that recommendation but also how to convey it to the state so it is implemented. (Interview D17)

This falls well in line with what Blom (forthcoming) refers to as political expertise, which relates to the capacity to evaluate the feasibility of an action from a political point of view (Abbott and Snidal, 2009; Blom, forthcoming). In this context, political expertise, for instance, refers to the ability of reviewers to understand how to phrase their recommendations in a politically friendly manner, and which demands can realistically be placed on states under review. On a related note, some interviewees deem it important for reviewers to know how to interact not only with high-level political actors, but also with civil society at large. This is helpful in order for reviewers to deliver recommendations that resonate with and reinforce those by civil society, and that civil society can help to push forward (Interviews D6, D17, D19).

A few interviewees additionally mentioned the importance of policy expertise (Blom, forthcoming; Page, 2010), namely, knowledge related to a particular policy area and existing policy instruments within that policy field (Interviews C3, C4, S7). Finally, an interviewee stressed the importance of procedural expertise (Blom, forthcoming; Tallberg, 2008), which corresponds to knowledge of specific legal systems and the way in which certain recommendations can be implemented (Interview C2).

The aim of this discussion is to make explicit what respondents mean and understand when talking about expertise. This is helpful as a tool to correctly interpret the results presented later as it allows us to understand the variety of criteria that respondents take into account when discussing and assessing the level of reviewers’ expertise. When interpreting results, interviews were employed as a tool to understand what specific types of expertise committee members are perceived to possess.

The expertise of committee members

We now turn to an assessment of the actual level of expertise of treaty body members. Figure 2 shows that their expertise is evaluated as rather high or very high by a large majority of respondents.

Figure 2.

Expertise of reviewers.

Interviews sketch a similar situation. The large majority of respondents was very positive when commenting on the level of expertise of committee members (Interviews D2, D3, D4, D5, D6, D8, D10, D11, D13, D17, D19, D20, D21, C1, C2, C3, C4, S2, S7, S8, S11, N1, N2, N3), even though many of these respondents reported large variation among individual members (Interviews D2, D3, D5, D8, D10, D11, D17, D20, D21, C3, C4, S2, S6, S7, S11, N2):

You have a body ranging from 15 to 23 independent experts, but the leading experts are three or four and they tend to do all the work of the committee. They prepare the general comments, they serve as rapporteurs and so on and so forth. Other candidates play a much more peripheral role, if it all. So … the reality with treaty bodies is that you can mention, can count the strong members on one hand. (Interview S11)

The main points of criticism towards some committee members are in line with the previous discussion on what constitutes expertise, which outlined that committee members should possess subject-matter expertise not only on human rights in general, but also on the set of rights monitored by a specific treaty. Indeed, some interviewees expressed disappointment in the fact that, sometimes, experts are not sufficiently knowledgeable on the topic of the convention (Interviews D1, D2, D3, C4, S2). For example, a respondent mentioned that when discussing the rights of persons with disabilities, it is not sufficient to ask policymakers to ‘include persons with disabilities’ (Interview C4) in a certain piece of legislation; rather, it is necessary to have a deeper level of understanding of what exactly should be changed, and how these changes could be implemented:

What I would like to see more is, you know, the knowledge on specific issues that … would have some major impact upon disability policies. We need to reach out … in order to make sure that disability inclusiveness will be recognized.… Otherwise, you are just selling something that people will never understand. (Interview C4)

In addition, some interviewees criticized certain committee members for showing a lack of knowledge of specific country situations and of the political and legal systems within those countries — the aforementioned procedural expertise — which leads them to deliver recommendations that, to governments, are either not relevant or not applicable (Interviews D2, D3). Additionally, experts are often perceived to lack political expertise as recommendations delivered in the context of the examination of state reports, and included in a document called ‘Concluding Observations’, are frequently deemed to aim at politically unreachable standards (Interview D2, D6, D10, D11, D12, S6, S9). Interviewed officials indeed reported that the recommendations included in the ‘Concluding Observations’ are very specific and detailed, providing states with clear guidance on how they should be implemented (Interviews D6, D16, S4, S5, S7, N1, N2). On the other hand, however, they are perceived to be unrealistic and aiming at maximum standards, and, at times, completely detached from the reality of the situation on the ground (Interviews D2, D6, D10, D11, D12, S6, S9): ‘Experts … aim at the maximum perfection, you have to be perfect compared to the obligation. Which is good [but] most of the times, it is impossible to achieve’ (Interview D10). According to respondents, recommendations should consider the starting situation in a state under review and what goals that state is able to reach:

You cannot come and talk about promoting human rights for women in a country where a woman still doesn’t have an ID, so you have to come step by step, movement by movement, unless you will lose your aim and you will lose your way and you will not reach the principle that you wish to reach. (Interview D12)

Finally, interview respondents commented that committee members are not always well prepared and fit for the job in a broader sense. This, for example, has to do with language ability, age, capacity to concentrate (and remain awake) for the long duration of state examinations and ability to keep up with the intensive workload of preparing for each country review (Interviews D2, S2, S7, S11). Some quotes nicely summarize these points:

In the past, you had very old, old, members that [had] been there forever and probably they had their role in the heydays. At the end, they were so old and frail that they would hardly be awake during the meeting. If you [had gone] to the meetings of the [committee ⁷ ] in the afternoon, you would [have seen] in the whole right branch everybody [was] sleeping. It looked like a nursing home, really, sometimes. It was sad, but this is the way it was. (Interview S11)

When we present in a committee, it’s really disappointing when you see one committee member is sleeping, the other one that you could tell did not read the report.… They are just repeating what the civil society said or they are just repeating what was on the news one week ago. (Interview D2)

This section showed that the expertise level in the treaty bodies is generally appreciated, although it is not seen to be possessed uniformly by all members. Committee members overall fare very well when it comes to subject-matter expertise, seem to perform worse in terms of political expertise, whereas the level of procedural and policy expertise varies.

The relationship between the electoral process and independent expertise

The previous sections delivered some puzzling findings. Politics permeate the selection and election processes for treaty body members. In the vast majority of cases, the national selection process for treaty body candidates is rather opaque. Additionally, elections to treaty bodies are largely based upon political, rather than expertise-based, considerations. Thus, negotiations between countries often seem to have much more effect on election results than the actual level of expertise of candidate members. Yet, somewhat surprisingly, the empirical analysis conducted in this article revealed that, overall, committees are deemed to possess an adequate level of independence and expertise to perform their tasks. How can this be explained?

First, interview respondents mentioned that putting forward a credible candidate for election is primarily a matter of prestige for states (Interviews D15, D16, D17, D20, D21, C4, S11). Most states, therefore, are unlikely to nominate incompetent or blatantly biased candidates. Yet, even though the perceived level of independence and expertise of committee members is considered to be satisfactory overall, it is believed to be not as high as it would be if elections were performed differently (Interviews D1, D5, D8, S4, S7). In this regard, a more open and transparent national selection process, following the model employed in the UK, might offer an effective starting point.

Second, and as anticipated in a previous section, although some committee members are not believed to be adequately independent and expert, the working methods of committees offer some safeguards in this regard as decisions are taken by consensus. Let us consider, as an illustration, the examination of state reports, which is one of the main tasks performed by treaty bodies. ‘Concluding Observations’ — as mentioned above, the document containing a list of concerns and recommendations for the state under review — are debated in a plenary meeting of committee members, and their content needs to be agreed upon by everyone. Therefore, biased, irrelevant or misinformed comments and recommendations delivered by some members are generally filtered out by the committee as a whole (Interviews C1, S3, S7, S9, S10): ‘Most political bias does not survive the collective thinking of the body, but, again, there might be political bias in a few cases.… The majority of the group usually puts … things on track’ (Interview S9). As a consequence, the output of committees is generally seen as of adequate quality. In other words, while the politicization of the electoral process may compromise the independence of some treaty body members, the independence of the group is seemingly not compromised.

Finally, the UN Secretariat plays a role in providing advice and support to the committees when performing their work. Even though there is reportedly not much that the Secretariat can do to limit possible biases or mistakes in the committees’ assessments, they do intervene in the most severe cases, for example, by talking to the chairperson (Interviews D7, C3, S4, S7, S8, S9). As stated by a member of the Secretariat:

We do come in when there is a situation which we feel is serious. It might be in a very discreet way, talking to the chair in private or [to] the members.… We always say that the products that are adopted by the treaty bodies are their own products.… They can choose action that we do not support. (Interview S9)

In line with the theoretical considerations presented earlier, this article takes the position that independent expertise should be considered as the outcome of a group effort, rather than the sum of the individual experts’ opinions. Seen in this light, the empirical results of this article do not sound as surprising as they do at first sight: whereas states determine who sits on the committees, they are generally unable to control the actual operations of these committees because they function as groups. This is particularly the case when committees are guided by a strong and independent chairperson. Treaty bodies elect, among their members, one person who will act as chair for a period of two years. ⁸ The chair is in charge of ensuring that the rules of procedure are correctly applied, and acts as a point of contact between her or his committee and the other committees, as well as with the UN Secretariat (Interviews S8, S9, S10). Interviewees mentioned the notable example of the late Sir Nigel Rodley, who was a member of the Human Rights Committee between 2001 and 2016, and its chairman between 2012 and 2014. Rodley was reportedly very successful in coordinating the work of committee members and making sure that potentially biased assessments would not see the light (Interviews D7, D8). However, while these interview insights provide an indication of the essential role played by the chairperson in guaranteeing the independence of treaty bodies, additional research on the role of chairs in treaty bodies would be needed in order to further substantiate this claim.

Based on the earlier considerations, this article highlights the importance of considering expert groups, rather than individual experts, as the unit of analysis when studying expertise in public organizations. We can, indeed, observe that what matters most in the context of the treaty bodies is for the group as a whole to possess an adequate level of expertise, possibly acting under the guidance of an objective and independent chairperson. Additionally, as more elaborately discussed earlier, the fact that some group members possess relevant expertise is often sufficient for the group as a whole to make objective and high-quality judgements (Franz and Larson, 2002).

However, if it is the case that states lose most of their control over the treaty bodies, why, then, are they so keen to engage in bargaining to get their candidates elected? Besides the aforementioned issue of prestige (Interviews D15, D16, D17, D20, D21, C4, S11), interviewees mentioned that countries who are committed or want to show commitment to human rights and human rights bodies are likely to be very active in order to have their candidates appointed to such instruments (Interviews D17, D19, D21, C4): ‘If you’re placing an expert in a UN convention, that also means that you’re supporting the convention because you’re participating into the administration of the whole convention and into the body that is overseeing the implementation’ (Interview D17). Additionally, experts — even when acting independently from their own government — are likely to express views in line with their own country’s values, which is considered to be advantageous in the context of the treaty bodies (Interviews D16, D17, D21). This point falls well in line with what is argued by Elsig and Pollack (2012), who show that in the context of judicial appointments to the appellate body of the WTO, member states generally support candidates whose views are more closely aligned to their own.

As a final point, it is worth noting that although respondents are overall satisfied with the level of independent expertise possessed by committees, large variations among committee members are a cause of frustration for respondents (Interviews D2, D3, D5, D6, D7, D8, D9, D10, D11, D12, D17, D20, D21, C3, C4, S1, S2, S3, S6, S7, S11, N2, N3) due to the expectations that come with a reviewing mechanism of a supposedly technical, apolitical nature. Lack of expertise on the side of committee members is therefore generally seen as highly detrimental to the overall functioning and credibility of the mechanisms:

In order to keep the credibility of these treaty bodies, we need to make sure that the experts who are chosen for this job, [are chosen] based on merit first and foremost. This is the only way as far as I see to sort of steer away from this undesirable politicization … which will eventually lead to the lack of credibility of the treaty bodies. (Interview D8)

It can thus be argued that the frustration of expectations concerning the expert and apolitical nature of treaty bodies plays a crucial role when it comes to the attitudes of respondents towards the mechanism. This argument resonates with psychological theories on the role played by expectations in determining a subject’s satisfaction. Kahnemann and colleagues (Kahneman et al., 2004; Tversky and Kahneman, 1981), for example, argue that a certain outcome is seen by individuals as favourable or detrimental depending on their starting expectations: ‘Outcomes are commonly perceived as positive or negative in relation to a reference outcome that is judged neutral. Variations of the reference point can therefore determine whether a given outcome is evaluated as a gain or as a loss’ (Tversky and Kahneman, 1981: 456). In a similar vein, it can be claimed that when it comes to the credibility of an organization, a crucial role is played by what participants expect of the role of independent experts in a public body, and what those experts are able to deliver in practice.

Conclusions

This article proposed an analytical framework to explore the contradictions inherent to processes in which independent experts are appointed to public bodies by the same states whose performance they are in charge of monitoring and supervising. It did so by focusing on the case of the UN treaty bodies, committees of independent experts in charge of assessing states’ implementation of the 10 major UN human rights treaties.

Due to the vagueness of the provisions governing the selection and election processes for members to these committees, states are left with extensive leeway to influence the results of these elections. No fixed UN rules prescribe how the selection of candidates should be carried out within individual member states, thus leading to large variation across countries. While some countries do select their candidates based on their recognized knowledge of human rights, others appoint candidates closely related to the government, such as former diplomats or civil servants. Subsequently, when it comes to the election of committee members by state parties to the treaties, voting decisions are often influenced by negotiations among states. While these dynamics are likely to occur in all policy areas to a certain extent, it is plausible that the sensitivity of the tasks that committees perform — namely, assessing states’ compliance with their human rights treaty obligations — provides additional motivation for states to attempt to exert control over the electoral outcome. As a consequence of such manoeuvres, not all experts sitting on the committees are perceived to possess an equal level of expertise or independence from their home governments, and when independent expertise is lacking in committees, this is considered to be a consequence of the politicized selection and election processes that led to their appointment.

Yet, this article has also shown that the overall level of independent expertise possessed by treaty bodies is higher than what one would imagine, based on these premises. An explanation for this may be found in the fact that states are keen to nominate experts who will heighten the state’s prestige in the UN human rights framework, but also, and more importantly, in the fact that the working methods of committees, where decisions are taken by consensus, are effective in filtering out the non-objective, biased and irrelevant comments or recommendations delivered by some of the experts. Confirming initial expectations, this article shows that independent expertise is not just the result of the work performed by individual experts, but the outcome of a group endeavour, often carried out under the leadership of the chairperson. When a sufficient number of experts possess relevant and complementary expertise, and when the chairperson manages to act as a watchdog against the possible politicization of the committee’s work, this will trump the negative effects of the work performed by some biased committee members. Yet, while this variation in the level of independent expertise possessed by treaty bodies does not seem to strongly impact on the quality of their output overall, when it becomes more apparent, it damages the overall credibility of these instruments due to the supposedly technical and apolitical nature that treaty bodies are expected to have.

From a broader perspective, this article showed that Blom’s (forthcoming) approach suggesting studying expertise by looking into constitutive and operational politics offers valuable guidelines to assess the role played by experts in public bodies. It provides a conceptual framework that enables a fine-grained analysis into the election process and decision-making within expert committees. In the case of the treaty bodies, the loose and vague rules concerning the selection and election processes for committee members — the outcome of the constitutive politics negotiated by member states — leave substantial manoeuvring room for governmental officials to engage in the operational politics of the elections. As a consequence, not all experts elected to committees possess an adequate level of expertise and independence from their home governments. Additionally, this study showed that a more refined study of expertise can be performed when distinguishing between different types of expertise. Specifically, it highlighted that the types of expertise most valued in the context of UN treaty bodies are: subject-matter expertise, namely, knowledge of the specific issue; political expertise, consisting of the ability to identify politically feasible courses of action; policy expertise, that is, expertise on a certain policy area; and, finally, procedural expertise, corresponding to knowledge of specific legal systems. As this article revealed, committee members fare very well in terms of subject-matter expertise, do not perform well as concerns their political expertise and vary in terms of procedural and policy expertise.

Finally, this article highlighted that expectations on expertise play a crucial role when it comes to the functioning of international bodies: what do involved actors expect of a supranational governance mechanism, and what is that mechanism able to deliver in practice? We have seen that, at least when it comes to human rights, the non-fulfilment of these expectations has a strong influence on determining the credibility of a certain instrument.