Interview with Marcia Kran

On her studies, career, and work on the United Nations Human Rights Committee 

By: Rights Review Editorial Board (May 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 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 federal 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.

Rights Review: 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: 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 handling a wide variety of criminal cases such as theft, assault, murder, fraud and forgery for over seven years, 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: At Stockholm University, which offered a unique International Graduate Studies programme resulting in the equivalent of a Master’s degree with coursework canvassing foreign policy, political science, criminology, and labour relations. From the early 20th century, Sweden had been a stable social democracy and the prospect of exploring the progressive political ideology honed over decades was enticing, so my husband Luis Molina and I gave up our base in Winnipeg and moved to study in Stockholm. It was there that I became fascinated with human rights and the international mechanisms to protect them. 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 vast difference between United Nations Member States in their level of commitment to protect, respect and fulfil human rights. 

RR: You studied at the University of Toronto immediately after you received your degree in Sweden. Did your studies at U of T equip you to work in international human rights law?

MK: Absolutely. I was fortunate to be a graduate student in an inspiring International Human Rights Law seminar taught by Professor Rebecca Cook and work as her research assistant to support her well-known work on women's reproductive rights. I also assisted her in managing the International Law Internship programme that was then funded by the Canadian Department of Justice. During the summer, students selected for the programme worked at international organisations such as the United Nations and the Inter-American Court of Human Rights, and wrote essays on areas of law they addressed during their internships. Understandably, these internships were in high demand as a good number of law students at U of T at the time aspired to work internationally and concurrently there was a major gap in information about ways to do so. Thus, another student and I developed a compilation called Opportunities in International Law, sharing ideas about international academic and employment opportunities. 

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? What motivated you to work for the United Nations?

MK: My responsibilities as Legal Policy Council 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 to implement the obligations contained in the treaty. For instance, I advised on 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. As an example that in some ways foreshadowed my current membership on the Human Rights Committee, 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. Three of the resolutions I was closely involved in developing and negotiating with other countries’ officials were 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. In essence, these detailed standards, considered quasi-legal in nature, developed at United Nations congresses, provide greater clarity and guidance on ways states can apply legally binding treaty obligations, such as those in the ICCPR. It was at the Congress in Havana that I grasped how consequential the work of the Crime Prevention and Criminal Justice Programme at the United Nations in Vienna was. Shortly afterwards, my husband (international criminologist Luis Molina) and I accepted our first jobs at the United Nations. For much of my ensuing career at the UN, I lead teams advising governments on implementing international human rights and justice standards as well as building and strengthening the framework for the United Nations to support government and civil society efforts in these areas.

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, scrutinising countries’ compliance with international human rights law.  I was keen to contribute to this work once I retired from the United Nations and moved back to Canada. Of the 10 committees, the Human Rights Committee, which was established under the ICCPR and has been monitoring the implementation of the rights set out in the treaty since 1976, is one of the most prominent. The 18 experts of the Committee are elected by State parties to the ICCPR, which requires members to have “recognized competence in the field of human rights” and also prioritises geographical diversity and the representation of different legal systems among the members. Historically, many members have possessed qualifications as academics, judges or practising lawyers. It is especially important to be aware 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. The Committee’s authority and success depend in large part on the qualifications and performance of its members. 

By 2016, Canada had not nominated a candidate for membership in any of the United Nations human rights committees for a very long time. When the government changed and was ready to nominate an expert to the Human Rights Committee, I was nominated. 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? Was there anything that surprised you about being an expert member? 

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 progress they have made in implementing the rights set out in the ICCPR. These rights are wide-ranging and include freedom of expression and assembly and freedom from arbitrary arrest and torture, a fair trial and independence of the judiciary, and political participation, as well other human rights. 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 fulfil 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. Shaped by the advisory work I have done in numerous countries, my approach to dialogues is to focus on improvements on the ground, and whether and how countries act to protect and fulfil human rights obligations and prevent and address any violations. 

Second, the Committee decides cases submitted by individuals who claim their rights under the ICCPR 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 emphasised 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 engrossing 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 organisations, selects an issue that is topical and timely, one where State parties would benefit from specific guidance. The Committee then drafts specific comments suggesting ways in which a particular right can be effectively implemented by Member States. The most recent General Comments that I participated in developing are General Comment No. 37 (2020), concerning Article 21 of the ICCPR on the Right to Peaceful Assembly, and General Comment No. 36 (2018), regarding Article 6 on the Right to Life, demonstrating how the Human Rights Committee responds to ongoing developments and adapts to offer realistic guidance for states on the nature of their ICCPR obligations in a changing world.

Before I joined the Committee, I had no idea how much hard work was involved! Members serve on a pro bono basis, travelling to Geneva for three sessions per year for at least a month per session. As you understand, our functions are challenging and consequential, and require a tremendous amount of detailed legal research and analysis. The work can be facilitated by law students who help carry out research, under members’ supervision, and I am grateful for the assistance of law students from the Allard International Justice and Human Rights Clinic at the University of British Columbia in this regard. 

RR: What is the value added to the Human Rights Committee’s reviews of country’s human rights performance by civil society organisations? How does the Committee use and weigh the information it receives from states and from civil society?  

MK: The submissions we receive from civil society organisations are particularly valuable as human rights groups are often aware of the factual experience of rightsholders in the country concerned, the issues they face, and the extent of their problems. Human rights organisations tend to have a comprehensive understanding of the prevailing gaps in human rights protection and the reasons for them. Thus, when NGOs provide relevant and reliable information concerning the situation in the country being evaluated, it is of practical value to the Committee to understand the nuanced picture of the human rights situation in the country. 

Of course, we are accustomed to verifying the information before relying on it during constructive dialogues. We often recognize bias or lack of credibility on the part of stakeholders. Thus, as part of our preparation, we scrupulously ensure that the information we receive is reliable. Additionally, we receive information from other stakeholders such as national human rights institutions as well as the United Nations Office of the High Commissioner for Human Rights, which serves as the secretariat for our Committee in Geneva, and is present in many countries. After we issue Concluding Observations, national and local civil society are well placed to advocate for their implementation on the ground. This beneficial exchange between civil society organisations and the Human Rights Committee is critical to ensuring that civil society has a chance to provide their perspective on the human rights situation in their country and the Committee has detailed and accurate information to conduct a thorough review. As an expert on the Human Rights Committee, I deeply value the participation of the many institutional and nongovernmental actors who improve the functioning of the Treaty Body system comprised of the 10 committees. 

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 ensure maximum 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: members could not travel to Geneva for in-person sessions over a period of two years. Our Committee and the other Treaty Bodies had to adapt to remote capabilities, translate over an online platform, and conduct State party reviews and adopt decisions across disparate time zones. Some of our online sessions were at midnight for a member in Japan and at 3 a.m. for me in Vancouver. However, the ability to adapt and continue to function clearly showed the determination and commitment of members. Being required to work online also tested technologies and showed the functions for which they were effective and for which they were not. Constructive dialogues are not effective online. Based on these lessons, committees are adopting technological changes as part of the reforms necessary to be fit to address current human rights challenges. 

To expand the benefits of the Human Rights Committee’s efforts geographically, we need more State parties to ratify the ICCPR.  Further to this end, all those that have ratified should actively engage with the Committee through reporting and constructive dialogues and, very importantly, effectively implementing the well-grounded Concluding Observations. After all, applying the recommendations to strengthen national civil and political rights performance is what will lead to tangible improvements in the lived experience of rightsholders. 173 states out of 193 United Nations Member states have ratified the ICCPR and others should be encouraged to do so. 

Institutionally, engagement by the whole of the United Nations with State parties would follow Constructive Dialogues. The Office of the High Commissioner is the main UN department focusing on human rights, but other programmes and specialised agencies also have roles and responsibilities in promoting human rights as a core pillar of the United Nations along with the development, peace, and security pillars. These organisations offer development and related technical advice, programming and support; have budgets and financial resources for this purpose; and have staff in the vast majority of countries. Ongoing development support in United Nations programme countries can be designed around the goal of implementing human rights recommendations. Such support by the United Nations Development Programme, UN Women, UNICEF, the International Labour Organization, the UN Population Fund, and other agencies has proven effective in maximising the uptake by State parties of Committee recommendations. Concerted efforts across the UN system would provide more substantive follow up and support than now exists. 

Fundamentally, the backlog of individual cases is at a critical level and is growing: there are currently over 1000 cases pending to be decided by the Committee. This risks rightsholders and other stakeholders losing confidence in the Committee. The Secretariat is without an adequate number of staff, an up-to-date management system and processes, and appropriate technology to handle and prepare the cases for timely Committee consideration and decision. Concerned member states and civil society organisations 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.” Such lengthy delays prevent the Committee from effectively addressing the often 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-publicised instances of countries manipulating international law to serve their own purposes and undermine respect for human rights. This makes it even more critical that the Committee be capable of successfully fulfilling its purposes. The solution to the huge 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: We understand that the Human Rights Committee faces external and internal challenges to the work it does to review country compliance with the ICCPR as well as to decide cases from individuals under the Optional Protocol. At the same time, the Human Rights Committee must be attuned to respond to global challenges as they arise. One such challenge is the invasion and ongoing war by the Russian Federation against Ukraine. What impact does or will this war have on the functioning of the Committee? 

MK: The number of cases from rightsholders in the Russian Federation is bound to increase under the Committee’s individual communications process. The Russian Federation withdrew from the Council of Europe in March 2022, and this includes the European Court of Human Rights. Therefore the regional human rights mechanism will no longer have jurisdiction over the Russian Federation and individuals will no longer be able to complain to the Court about rights violations in the Russian Federation. Removing this regional enforcement mechanism will probably result in an even greater number of cases for the Human Rights Committee from rightsholders in the Russian Federation. The increase in caseload will exacerbate the already urgent need for an efficient case management and preparation system. 

The Russian Federation was scheduled to engage in a Constructive Dialogue with the Committee in March 2022 but transmitted a note verbale to indicate that the delegation was unable to travel to Geneva due to airspace restrictions. In the end, the Chair of the Committee made a statement that directly addressed the Russian Federation’s ongoing military invasion of Ukraine and strongly urged the Russian Federation “to take all measures necessary" to comply with its obligations, “in particular with the right to life, the supreme right from which no derogation is permitted, even in situations of armed conflict.” The Russian Federation is scheduled to appear for a Constructive Dialogue with the Committee in June 2022. 

RR: Do you have any career advice for law students interested in international human rights, including positions at the United Nations, stemming from your own unique experience? Are there particular challenges that you would advise preparing for?

MK: For students who aspire to careers in international human rights, it may be useful to keep in mind the advantages of being flexible while looking for entry level jobs with the United Nations. Research emerging opportunities. Narrowing down a job search to a kind of organisation or profile in the formative years of your career may not prove to be the most fruitful approach. Instead, a focus at this time might be to gain work experience in the area. A job at an international organisation may surprise you and lead you to an interest that you may have otherwise not explored. Overall, while it is vital to pursue your passions and to deeply invest in issues that matter to you, it is important to be open-minded that the right opportunity for you may look rather different from the one you originally anticipated.

Most international and inter-governmental organisations, especially the United Nations, highly value international and cross-cultural exposures in a candidate’s profile. One way to obtain this is by completing a graduate degree in another country. Other means to gain this exposure include internships, research with professors on matters of international law, volunteer opportunities with international community organisations, as well as study abroad programs. 

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. Fluency in a few languages is generally advantageous to candidates. Additionally, within the international organisations’ 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 enormously helpful. While serving as Director of the Research and the Right to Development Division at the Office of the High Commissioner for Human Rights, I was responsible for hiring numerous human rights lawyers for work in Geneva and elsewhere, and I observed that jobs in the international human rights field at the United Nations are highly sought after, with well-qualified candidates applying from all regions of the world. I would advise you to continue submitting applications despite the formidable competition. Especially well-written submissions will help qualified applicants stand out. One shouldn’t get discouraged if it takes repeated applications to receive an invitation for an interview. Here again, careful preparation can fully showcase your qualifications at the interview stage.

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.