On her studies, career, and work on the United Nations Human Rights Committee (June 2022)
Marcia V.J. Kran, O. C., is an international lawyer with 40 years of professional experience working in human rights, criminal justice, and democratic governance as a senior official at the United Nations (UN) Office of the High Commissioner for Human Rights in Geneva; the UN Development Programme (UNDP)’s Regional Centre in Asia and the Pacific in Bangkok, Thailand; the UNDP Regional Centre for Eastern Europe and the Commonwealth of Independent States (CIS) in Bratislava, Slovakia; the UN Crime Prevention and Criminal Justice Programme in Vienna, Austria; and as National Criminal Justice Reform Director at the Open Society Institute in Budapest, Hungary. In Canada, she was Criminal Law Policy Counsel at the Department of Justice, taught international human rights law as an adjunct professor at the University of British Columbia, and served as Crown Prosecutor for the Attorney General of Manitoba. Ms. Kran was nominated by Canada and elected by Member States as an expert member to the UN Human Rights Committee in 2016. She is currently serving her second term on the Committee.
This interview has been edited for print.
Rights Review (RR): You have been an expert on the United Nations Human Rights Committee for the last five years. Did you always know you wanted to pursue international law, or focus on human rights?
Marcia Kran (MK): Not exactly. From the time I was in high school in Morris, Manitoba, my aim was to practice criminal law. In my final year at law school at the University of Manitoba, I enrolled in the clinical education program on criminal law which offered the chance to move from theory to directly helping people with their legal claims. I articled with the office of the Attorney General of Manitoba and then worked as a provincial Crown Prosecutor in Winnipeg until I decided to pursue a new trajectory, returning to university for graduate studies.
RR: Where did you first study international human rights law?
MK: I became fascinated with human rights and the international mechanisms to protect them while enrolled in Stockholm University’s International Graduate Studies program. Sweden had ratified the European Convention on Human Rights, which grants individuals the right to claim a violation of human rights by a member state, in 1952. In the early 1980s, there was a dramatic rise in the number of complaints of human rights violations submitted to the European Court of Human Rights against Sweden to the point where the country had proportionately more cases against it than any other country belonging to the European Convention. I researched these cases and wrote my thesis on Sweden’s record in the European Court of Human Rights. Interestingly, the significant increase in the number of cases followed robust activities by the government to teach lawyers about the Convention machinery and raise awareness among the general public of their rights under the Convention. Decades later, I remain convinced that, when it comes to protecting human rights, all countries can be considered to be developing countries insofar as they have room for improvement. There is a vast difference between United Nations Member States in their level of commitment to protect, respect and fulfill human rights.
RR: Before you were recruited by the United Nations, you served as Legal Policy Counsel for the Canadian Department of Justice. Did your work as legal counsel for the federal government link with your later career at the United Nations?
MK: My responsibilities at the Department of Justice were directly related to international law. Often, when Canada decides to ratify international treaties, amendments to national criminal law are necessary. For instance, I advised on the changes to the Criminal Code that were needed to implement an international anti-terrorism treaty. Conversely, when national legislation is amended, Canada does so in a way that complies with the international treaties it has ratified. I advised on amendments to the Extradition Act to ensure that Canada’s international human rights obligations, such as those set out in the International Covenant on Civil and Political Rights (ICCPR), were respected under the new law.
I was also part of the Canadian delegation to the quinquennial United Nations Congress on Crime Prevention and Criminal Justice in Havana, Cuba, where we agreed on new norms and standards in criminal justice that were subsequently adopted by the United Nations General Assembly. I was closely involved in developing the Basic Principles on the Role of Lawyers which sets out peoples’ entitlements to lawyers of their choice to protect their rights and defend them; the Guidelines on the Role of Prosecutors which, among other protections, bar prosecutors from using evidence obtained by torture or cruel treatment; and the Basic Principles on the Use of Force and Firearms which require the police to apply non-violent means to carry out their duties before resorting to the use of force and firearms, and then only when it is unavoidable. It was at the Congress in Havana that I grasped how consequential the Crime Prevention and Criminal Justice Programme’s work was. Shortly afterwards, my husband (international criminologist Luis Molina) and I accepted our first jobs at the United Nations.
RR: In some ways, your membership as an expert of the Human Rights Committee represents an amalgamation of experience gained throughout your unique legal career. What sparked your interest in becoming an expert member of the United Nations Human Rights Committee? What are the prerequisites to being elected as an expert of the Committee?
MK: From my work in different offices at the United Nations, I was well aware of how important international human rights committees are as global accountability mechanisms. I was keen to contribute to this work once I retired from the United Nations and moved back to Canada. The 18 experts of the Human Rights Committee are elected by State parties to the ICCPR which requires members to have “recognized competence in the field of human rights,” and also refers to the need for geographical diversity and the representation of different legal systems among the members. Historically, many members have possessed qualifications as academics, judges, or practicing lawyers. It is noteworthy that members do not serve on the Committee as representatives of their governments. The Covenant requires impartiality since members must objectively assess whether countries have fulfilled their obligations.
By 2016, when I was nominated, Canada had not nominated a candidate for membership in any of the United Nations human rights committees for a very long time. State parties to the ICCPR re-elected me for a second four-year term in 2020. I am the only Canadian member on any of the 10 international human rights committees and am honoured to participate in this valuable work strengthening the Human Rights Committee and the Treaty Body system.
RR: What does your role as an expert member of the Human Rights Committee entail?
MK: The Committee’s functions engage all 18 expert members and there are three major mandates. First, the Committee reviews State parties’ compliance with their civil and political rights obligations under ICCPR. State parties submit their reports on their progress in implementing the rights set out in the ICCPR. Members of the Committee engage in a constructive dialogue with official delegations, evaluating progress and identifying gaps and offering tailored observations to enable each State Party to better fulfill their obligations. These recommendations to countries on how they can improve their national human rights policies, laws, and action are called Concluding Observations. In 2013, the Committee introduced a follow-up procedure to check whether countries have implemented selected Concluding Observations. My approach to dialogues is to focus on improvements on the ground, and whether and how countries act to protect and fulfill human rights obligations and prevent and address any violations.
Second, the Committee decides cases submitted by individuals who claim their rights under the OCCPR have been violated. The first Optional Protocol to the International Covenant on Civil and Political Rights, which entered into force in 1976, gives the Committee the jurisdiction to hear cases, referred to as individual communications, against State parties. Currently, there are 116 State parties to the Optional Protocol; these states have effectively given the Committee the mandate to hear cases against them. The first step is to determine if individual communications are admissible, that is if claimants have exhausted all domestic legal remedies available to them in their countries—or do not have access to effective remedies because they are not available. If a complaint is admissible, my colleagues and I will consider it. Over the years, the Committee has issued many decisions which are referred to as “Views” and some of them have sparked significant legal and pragmatic reforms in the State concerned. Others have shaped international legal developments such as the emergence of the so-called “climate change refugee” classification from our decision in Teitiota v New Zealand. In March 2022, we adopted Views in the case of Brazil’s former president, Luiz Inácio Lula da Silva, in which the Committee found that his prosecution for allegations of corruption violated his right to a fair trial, political rights, and right to privacy. The Committee emphasized that while there is a duty to investigate acts of corruption and to keep the citizens of a country informed of such charges, investigations must be undertaken with respect for due process rights, including a fair trial. These cases are only two examples of the outcomes of the Committee’s process of applying the ICCPR to make critical decisions.
Third, the Committee develops General Comments which codify the status of international law and good practice on selected ICCPR rights. The Committee, after consultation with State parties and civil society organizations, selects an issue that is topical and timely, one where State parties would benefit from specific guidance. The Committee then drafts comments suggesting ways in which a particular right can be effectively implemented by Member States.
RR: Recognizing the widespread effects and instability created by the global COVID-19 pandemic, what are some of the main challenges you see to the work of the Human Rights Committee today? Are there ways to maximize uptake by countries of the recommendations issued by the Committee?
MK: Logistically, the global pandemic presented challenges that human rights committees and the Secretariat at the Office of the High Commissioner for Human Rights were unaccustomed to. Our Committee and the other Treaty Bodies had to adapt to remote capabilities, translation over an online platform, and the conduct of State party reviews and adopting decisions across disparate time zones. The ability to adapt and continue to function clearly showed the determination and commitment of members […]
Fundamentally, the backlog of individual cases is at a critical level: currently, over 1000 cases are pending. This situation risks rightsholders and other stakeholders losing confidence in the Committee. Concerned member states and civil society organizations alike have appealed for solutions which have not been forthcoming, exemplified in a letter last month from 52 State parties to the High Commissioner for Human Rights. They observed that “an outdated communications process … is no longer fit for the purpose it must serve.” Lengthy delays prevent the Committee from effectively addressing the urgent appeals of individuals who believe that they have not received fair or just treatment by authorities within their countries. Timely resolution is a distinct indicator of the Committee’s effectiveness. There are many well-publicized instances of countries manipulating international law to serve their own purposes and undermine respect for human rights.
The solution to the case backlog is multi-faceted and involves sound planning processes, efficient case management, relevant technological solutions and, of course, adequate funding and staff. There is a lack of resources across United Nations departments, but this is amplified for the human rights pillar which has historically been underfunded, receiving only a small fraction of the funds allocated to the other pillars. Hopefully, Member States collectively can be convinced to place more emphasis on upgrading the functioning of the international human rights pillar for the benefit of rightsholders globally.
RR: Do you have any advice for law students interested in international human rights work, including positions at the United Nations, stemming from your own experience? Are there particular challenges that you would advise preparing for?
MK: It may be useful to keep in mind the advantages of being flexible while looking for entry-level jobs with the United Nations. I would strongly recommend improving linguistic abilities. Being fluent in the official languages of the United Nations is a requirement in several jobs of the professional grade. Additionally, within the international organizations’ community itself, language fluency allows you to foster a network that may not otherwise have been available to you and networking is a worthwhile way to explore job possibilities. Persistence and tenacity are also enormously helpful.
It may also be useful to fast forward and appreciate that once you land a job in this area, it is surely not a career option for those who want an easy ride. It is a difficult and changing field with many moving parts, where success in achieving human rights goals is not guaranteed. Practically speaking, opportunities for advancement require a high degree of expertise, communication and interpersonal skills, and the ability to collaborate and adapt. Ultimately, it is a rewarding career that challenges you and encourages you to expand your knowledge base and skill set to serve a worthy purpose. While relocating for different positions and growing accustomed to new environments can seem overwhelming, the international community offers a strong network of institutional knowledge and support, and this interconnectedness among those who pursue international positions will become apparent and be valuable to you as you move along in your careers.