This is a revised version of a paper prepared for the Summer University of Human Rights (SUHR) Conference organised by The University College Henry Dunant, Geneva, 12-14 August 2008. I am grateful to conference participants.
On 15 March 2006, the General Assembly,
principal organ of the United Nations, decided to establish the new body to
address human rights issues and improve international responses to human rights
violations. The new Human Rights Council (HRC) took over the much discredited
United Nations Commission on Human Rights (CHR) in an attempt to de-politicize
the United Nations (UN) approach to this area. The old Commission ceased its
work on 16 June 2006[1].
The new council was setup as subsidiary organ of the General Assembly of UN,
and according to the resolution, which established it, shall be responsible for
promoting universal respect for the protection of all human rights and
fundamental freedoms for all, without distinction of any kind and in a fair and
equal manner. This was done in the recognition of importance of ensuring
universality, objectivity and non-selectivity in the consideration of human
rights issues, and of elimination of double standard and politicization.
he Commission on Human Rights, which had been the main UN organ to deal with human rights had been regarded as discredited because its selectivity when choosing countries for scrutiny and its failure to deal with urgent situation. The criticism was in particular caused by its membership, which included some notorious offenders. Furthermore, strong reproaches were expressed regarding the alleged deterioration of key procedure of the Commission: it annuary debate on human rights violation. This procedure had become, it was said, increasingly fraught with politicizing and unfair selectivity. As result, a credibility deficit developed and it became common to speak about the discredited Commission. The crisis of Commission, latent for many years, gained momentum from 2004. The new Human Rights Council represents a historic new chapter (see “A New Chapter for Human Rights”, International Service for Human Rights and Friedrich-Ebert-Stiftung, June 2006) in the UN's consideration of human rights issues. General Assembly resolution 60/251 sets out central principles and a broad framework for the HRC, but much remains to be filled in with respect to its modus operandi.
The paper is organized as follows. The first section describes the evolution of the Commission on human rights from its initial formulation to its recent rediscovery in a Council that is efficient, effective, credible and responsive after its dark age. The second section briefly outlines the main contents of the new Human Rights Council and the third section clarifies its fields of application and potentialities, which are rather different from those of the Commission. The fourth section makes the overview of the Council’s first three years of work.
I. The Commission on Human Rights
The UN Commission on Human Rights (hereinafter: the Commission) is the UN’s primary body for discussions and standard setting exercises on international human rights issues. The Commission, mandated by the United Nations Charter, was established in 1946 as a subsidiary body of the Economic and Social Council (ECOSOC). Based in Geneva, Switzerland, it consisted of 53 Member States reflecting the five regional groups of the UN: Africa, Asia, Eastern Europe, Latin America & the Caribbean and Western Europe & Other States, and was tasked to weave the international legal fabric that protects the fundamental rights and freedoms of people.
The Commission was mandated to submit proposals, recommendations and reports to ECOSOC on: (a) an international bill of rights; (b) international declarations or conventions on civil liberties, the status of women, freedom of information and similar matters; (c) the protection of minorities; (d) the prevention of discrimination on grounds of race, sex, language or religion; (e) any other matter concerning human rights not covered by the other items.
Despite its original mandate to deal with “any matter concerning human rights”, the Commission was initially reluctant to address this issue. In its first twenty years, the Commission maintained that it had no power to take any action in regard to any complaints concerning human rights. The development of international human rights norms was almost the sole function of the Commission during this period. This very restrictive position was finally abandoned when ECOSOC adopted what eventually turned out to be two separate procedures: the public procedure under Resolution 1235 (XLII) in 1967 and the confidential procedure under Resolution 1503 (XLVIII) in 1970. Since then, the Commission’s activities have expanded to cover, in various degrees, all five aspects of its original mandate.
Its first notable achievement was the formulation of the Universal Declaration of Human Rights, which was adopted as General Assembly resolution 217 A (III) in 1948. At first, the Commission concentrated on the overall promotion of global human rights, adhering strictly to the principle of sovereignty.
However, the adoption of ECOSOC resolution 1235 in 1967 provided the Commission with a new opportunity to assert itself as it charged the Commission with responding to country-specific or thematic human rights violations within the framework of special procedures.
Unfortunately, the implementation of the country-specific resolution increasingly politicized the work of the Commission, as some Member States applied it to either seek protection from criticisms or to attack others.
The annual six-week sessions of the Commission have degenerated into an adversarial exercise in which progress in the protection and promotion of human rights appears to have become a secondary interest. The Commission is becoming a forum for defending government records, rather than examining them.
Although the Commission was praised by some Member States for its independent experts (the Special Rapporteur), the political nature of some of its decisions resulted in heavy criticism and increasingly provoked calls for its reform.
Furthermore, limited financial and human resources have imposed serious constraints on the activities of the Commission’s mechanisms, whose mandates cannot always be serviced as effectively and thoroughly as their importance would warrant. The under-funding is so serious that country and thematic mandate holders frequently have to limit the number of visits they are able to carry out, cancel or scale back plans, and resort to fundraising themselves in order to support their work. Mandate holders are unpaid and often do not even have the support of a full-time civil servant at the UN. Moreover, the staff assigned to the mandates is frequently rotated.
At present, human rights work within the UN only receives approximately 1.5% of the UN regular budget. Such a low figure is inconsistent with the professed importance of human rights to the UN and the resources actually devoted to their realization. The 2005 World Summit made a commitment to a doubling of OHCHR’s share of the UN regular budget within five years. The 2008-2009 budget reflects the Member States commitment to this goal and reinforces that human rights is a key component of the UN’s work. Regular budget funding for the 2008-2009 biennium: $119.2 million, or 2.89% of the United Nations' global budget of $4.17 billion.
The time has come to re-think – even to re-invent and re-imagine – the structure and working methods of the Commission to effectively address new and complex situations that make it more and more difficult for the Commission to fulfil its principal duty to monitor, promote and protect human rights.
Throughout the negotiations in 2004 and 2005, under the mediation of General Assembly President and UN Secretary General, the compromise system was instituted which introduced a number of changes.
As indicated by the report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, “A more secure world: our shared responsibility” (A/59/565), which stated that the credibility and professionalism of the Commission had been declining as a result of some Member States seeking membership not to advance human rights, but to avoid criticism and to criticize others. It recommended that the Commission should have universal membership. Subsequently, then Secretary-General Kofi Annan urged, in his follow-up report in 2005, “In Larger Freedom: towards development, security and human rights for all” (A/59/2005), that the membership consider replacing the Commission with a new Human Rights Council.
II. The Human Rights Council
The Human Rights Council is an intergovernmental body within the UN system made up of 47 States responsible for strengthening the promotion and protection of human rights around the globe[2]. The Human rights council deserves the merit of having raised the problem of conditions for the substantive exchanges and practical decisions in a spirit of cooperation and common commitment to the promotion and protection of human rights. It represents a historic innovation in the UN's consideration of human rights issues.
1. The structure and board procedural aspects
To begin with, the Human Rights Council enjoys a higher profile and status than its predecessor, the Commission on Human Rights. Not only has the new body’s stand been enhanced by becoming a subsidiary organ of the GA—the CHR reported to the less authoritative UN’s Economic and Social Council (ECOSOC)— but its position could be further strengthened in five years, when the HRC’s status is to be revised by the GA. Maybe then the Council could actually become a principal organ of the United Nations (UNGA 60/251, para.1).
More interesting and polemic is the issue of membership to the HRC. The main criticism of the CHR was that its credibility was totally challenged by the prolonged membership of notorious human rights abusers, including the surreal episode of Libya holding the presidency of the body in 2003. As highlighted by SG Annan in In Larger Freedom, “States have sought membership on the Commission not to strengthen human rights, but to protect themselves against criticism or criticize others.” (UNGA, A/59/2005, para.182). During the 2004 CHR’s session, it was evident that Sudan’s membership to the Commission would render ineffective any initiative to condemn and take action against Khartoum-sponsored repeated violation of human rights in Darfur.
The new mechanisms to prevent potential spoilers from seeking or attaining membership at the HRC are not as solid and efficient as initially intended, but still provide an important improvement with respect to the CHR. Council members are now elected by absolute majority (96 votes) by the General Assembly (all UN 192 member states), instead of simple majority by the 54-member ECOSOC. Moreover, HRC candidates are chosen by individual, direct vote, while in the past they were elected by acclamation within their regional groups. This new election mechanism brings greater transparency and legitimacy to the body. Candidates are also obligated to make public commitments to respect and promote human rights when running for a seat, a foreseen special scrutiny on the member’s human rights records is set, and members can now be suspended by a 2/3 majority vote if they engage in major and systematic human rights violations. In addition, tenure at the HRC is limited to two consecutive terms of three years each, guaranteeing a periodic renewal in membership that the term limitless CHR lacked.
The Council- as was the Commission - is assisted by an Advisory Committee composed by the independent experts. The new Advisory Committee which serves as the Council’s “think tank” providing it with expertise and advice on thematic human rights issues in the manner and form requested by the Council, focusing mainly on studies and research-based advice. Such expertise shall be rendered only upon the latter’s request, in compliance with its resolutions and under its guidance. The new Committee, however, is more strictly subordinateted its parent body and appears to lack all power of initiative.
In accordance with resolution 5/1 and decision 6/102 of the Human Rights Council, the 18 members of the Advisory Committee were elected on 26 March 2008, at the seventh session of the Council. As set out in resolution 5/1, the geographical distribution of members is as follows: five each from African and Asian States; three each from Latin American and Caribbean States, and Western European and other States; and two from Eastern European States.
Members shall serve for a period of three years and shall be eligible for re-election once. In accordance with resolution 5/1, the staggering of terms of membership of the Advisory Committee members was determined by drawing lots immediately after the election. Hence, in the first term, one-third of the experts will serve for one year and another third for two years. The inaugural session has been held from 4 to 15 August 2008 at the Palais des Nations, United Nations Office at Geneva
The number of sessions is greatly increased, up to 10 weekends minimum, and extraordinary sessions, notably to deal with urgent crises, need only one third membership plus one member to be convened. In fact, several extraordinary sessions have been held on Darfur, Gaza, Lebanon, Maymarand Palestine. This is a marked progress compared to the Commission with, hampered by its procedural rules.
At commission, accredited NGOs exercised certain important rights based partly on their consultative status and partly one the practice of the commission. According to that practice, NGOs were in fact accorded the rights to criticise states in public statements. The preservation of such rights under the new system was not self – evident, as the NGO consultative status had been set down by the Ecosoc, a body from which the new Council is now independent. The compromise solution was to maintain expressly NGO participation evolved in the Commission’s practise, the Council reserving, however, its rights to “review” the issue in order to ensure the best possible contribution of NGOs. NGO participation in the Universal periodic review of human rights, a key feature of new system, had some special restriction, as will be shown later.
2. The Universal Periodic Review
A more substantive improvement introduced by the HRC is the creation of a Universal Periodic Review mechanism (UPR) that will analyze the status of human rights in all UN member states, under the principles of objectivity, universality, reliability, and cooperation.
The UPR is the sound basis for UN information and action, as well as best way of eliminating “unfair selectivity”. Although the final parameters of the UPR are still being defined, the fact that now all UN members are subject to scrutiny will prevent the double-standards in the selection of the countries examined by the Council, and hopefully end the old practice by countries to seek membership in order to escape censorship (UNGA 60/251, para.5). The Council’s member’s obligation to cooperate with the body should also operate as a membership deterrent for serious human rights violators, whose failure to cooperate could propitiate an embarrassing expulsion from the body.
The review is an intergovernmental process that facilitates an interactive dialogue between the working group and the country under review. It is conducted by a UPR working group composed of the 47 Council members and chaired by the Council President.
Observer states may attend and speak at the working group, and relevant stakeholders (such as NGOs) may also attend the meetings. All Council members will undergo a review during the term of their membership, and initial members (those with one- and two-year terms) will be reviewed first.
The HRC also has the virtue of retaining and reaffirming some of the best tools of the CHR, including the so-called special procedures, the right to issue country-specific resolutions, and the granting of access to its works and sessions to human rights NGOs. The procedures were one of the great strengths of the former CHR, and encompass the invaluable range of independent expert – rapporteurs, representatives, working groups – that first the CHR and now the HRC use to investigate complaints on specific human rights violations (country mandates) and analyze global human rights issues (thematic mandates). Currently, a working group is assessing the special procedures effectiveness, and is expected to produce recommendations on how to improve them.
Among the positive aspects, we can note the broad substantive basis of the review, which include not only ratified treaties but also the Universal Declaration and unilateral human rights commitments of states.
The emphasis is placed on the sharing of best practise with a view to raising ultimately the universal level of human rights protection. In this sprit, the UPR may help to identify the massive structural human rights problems characteristic of our global age, such of the negative impact of globalisation. Another helpful aspect is the stress laid on complementarily and coordination with comparable mechanisms, such as the reporting systems of the UN treaty bodies, WTO and the ILO.
The main problem arises is the essentially inter-governmental character of the procedure. The examination of the state’s report and other documents is conducted by the three members of the Council drawn by the lot (the troika) and the conclusion is formulated by the Council as the whole. No independent expert intervenes at any stage.
Equally negative is the restriction imposed upon the NGOs. Their participation seems to be limited to the provision of written statements, if credible and reliable, to be summarised in secretariat’ short documents as one of the sources for the review and to the making general comments in the debate on the conclusion.
3. Special Procedures
The Council, like the previous Commission, maintains a system of special procedures that includes country and thematic mandates. Country mandates, which last for one year and can be renewed, allow for special rapporteurs to examine and advise on human rights situations in specific countries. Thematic mandates, which last for three years and can also be renewed, allow special rapporteurs to analyze major human rights phenomena globally.
Similar to the Commission, the special rapporteurs serve in an independent, personal capacity and conduct in-depth research and site visits pertaining to their issue area or country. They can be nominated by U.N. member states, regional groups within the U.N. human rights system, international organizations, NGOs, or individuals. A newly established “consultative group” nominates rapporteurs for country and thematic mandates. Based on the consultative group’s input, the Council president submits a list of possible candidates to Council members, who then consider each appointment.
The Council keeps however, the rights to discontinue any mandate in order to rationalise the system and a time-limited of one year, renewable up to six years maximums, was placed on country rapporteurs. Much debate took place on the new code of conduct for Special Rapporteur. Somme articles of the Code may lend themselves to undue restrictions. Thus the Rapporteurs are enjoined to full respects national legislation even under emergences regimes, and they must plan their field visits in close collaboration with the government concerned!
III. The outcome of the institution building process
General Assembly res.60/251 requires that the Council develop the modalities and necessary time allocation for the universal periodic review mechanism and complete a review of system of special procedures, experts’ advice and complaints procedure within one year of its first session. This deadline was due to be on18 June 2007, the same day that the first membership of the council and Presidency were due to expire.
In it decisions 1/102 of 30 June 2006 , the council decided to extend exceptional for one year the mandates and mandate-holders of special procedures of Commissions on Human Rights and Sub-Commission for the promotion and Protection on Human Rights as well the procedure established pursuant to Economic and Social Council resolution 1503.
Final at midnight on 18 June 2007 after long discussions, the council was able to agree on text introduce by the president of the Council on 17 June entitled” UN Human Rights Council: institution - building of the United Nations Human Rights Council that addressed many crucial details related to the work of the Council, including its mechanisms, procedures, framework, and system of universal periodic review. Some aspects of the Council’s work, however, will continue to be debated and determined by Council members.
Complying with this mandate, on 18 June 2007 - at its fifth session – the Council adopted resolution 5/1, which details modalities regarding the UPR mechanism. These modalities set the basis-review, the principles and objectives to be followed, the periodicity and order of review of countries, the process and modalities to be used, as well as the procedures to be undertaken in regard to outcomes and follow-up. Furthermore, the Council decided that each review would be conducted in one working group composed of the 47 Member States of the Council. Each state’s situation is to be examined during a three hour debate. During its sixth session that began on 21 September 2007, the Council adopted a working method and a calendar for the reviews of the 192 Member States of the United Nations to be undertaken during the first four-year cycle of the UPR mechanism, and established the precise order of the reviews. The reviews to take place in 2008 are as follows:
• First session (7–18 April 2008): Tunisia, Morocco, Algeria, South Africa, Bahrain, Indonesia, India, Philippines, Ecuador, Brazil, Argentina, Finland, United Kingdom, Netherlands, Poland, Czech Republic.
• Second session (5–16 May 2008): Gabon, Ghana, Peru, Guatemala, Benin, Republic of Korea, Switzerland, Pakistan, Zambia, Japan, Ukraine, Sri Lanka, France, Tonga, Romania, and Mali.
• Third session (1–12 December 2008): Botswana, Bahamas, Burundi, Luxembourg, Barbados, Montenegro, United Arab Emirates, Israel, Liechtenstein, Serbia, Turkmenistan, Burkina Faso, Cape Verde, Colombia, Uzbekistan, and Tuvalu.
• The remainder of the 192 reviews will be completed by 2011.
The Council also took steps to:
• Offer technical assistance to build domestic institutions in some countries “…that would help in the long-term monitoring efforts to make sure the human rights problems are solved.”
• Continue the work of the Social Forum (resolution 6/13). The Social Forum provides an opportunity to improve the interactive dialogue between the United Nations human rights machinery and various stakeholders.
• Give NGOs the opportunity to question issues of concern and engage directly with the special procedures and Member States during the interactive dialogue.• “Give voice” to victims through the complaints and the Special Procedures, contained in ECOSOC resolution 1503.
• Enable it to encourage passage of appropriate resolutions, needed to address various situations in different countries.• Establish random pilot projects in some countries, as part of the Council’s institution building to assess the severity of human rights crisis around the world.
• Establish new thematic special procedures and a new advisory body on indigenous people’s rights.
The Council held its first meeting in Geneva, Switzerland, from June 16 to 30, 2006, adopting eight resolutions, three decisions, and two statements by Council President Luis Alfonso de Alba. A high-level meeting was held during the first four days of the session. During the sessions: parties exchanged views on a mixture of substantive and procedural issues, including the nature of the universal periodic review process, the role of human rights defenders in protecting and promoting human rights, and the overall implementation of the General Assembly resolution that created the Council.
The Human Rights Council is an intergovernmental body within the UN system made up of 47 States responsible for strengthening the promotion and protection of human rights around the globe[2]. The Human rights council deserves the merit of having raised the problem of conditions for the substantive exchanges and practical decisions in a spirit of cooperation and common commitment to the promotion and protection of human rights. It represents a historic innovation in the UN's consideration of human rights issues.
1. The structure and board procedural aspects
To begin with, the Human Rights Council enjoys a higher profile and status than its predecessor, the Commission on Human Rights. Not only has the new body’s stand been enhanced by becoming a subsidiary organ of the GA—the CHR reported to the less authoritative UN’s Economic and Social Council (ECOSOC)— but its position could be further strengthened in five years, when the HRC’s status is to be revised by the GA. Maybe then the Council could actually become a principal organ of the United Nations (UNGA 60/251, para.1).
More interesting and polemic is the issue of membership to the HRC. The main criticism of the CHR was that its credibility was totally challenged by the prolonged membership of notorious human rights abusers, including the surreal episode of Libya holding the presidency of the body in 2003. As highlighted by SG Annan in In Larger Freedom, “States have sought membership on the Commission not to strengthen human rights, but to protect themselves against criticism or criticize others.” (UNGA, A/59/2005, para.182). During the 2004 CHR’s session, it was evident that Sudan’s membership to the Commission would render ineffective any initiative to condemn and take action against Khartoum-sponsored repeated violation of human rights in Darfur.
The new mechanisms to prevent potential spoilers from seeking or attaining membership at the HRC are not as solid and efficient as initially intended, but still provide an important improvement with respect to the CHR. Council members are now elected by absolute majority (96 votes) by the General Assembly (all UN 192 member states), instead of simple majority by the 54-member ECOSOC. Moreover, HRC candidates are chosen by individual, direct vote, while in the past they were elected by acclamation within their regional groups. This new election mechanism brings greater transparency and legitimacy to the body. Candidates are also obligated to make public commitments to respect and promote human rights when running for a seat, a foreseen special scrutiny on the member’s human rights records is set, and members can now be suspended by a 2/3 majority vote if they engage in major and systematic human rights violations. In addition, tenure at the HRC is limited to two consecutive terms of three years each, guaranteeing a periodic renewal in membership that the term limitless CHR lacked.
The Council- as was the Commission - is assisted by an Advisory Committee composed by the independent experts. The new Advisory Committee which serves as the Council’s “think tank” providing it with expertise and advice on thematic human rights issues in the manner and form requested by the Council, focusing mainly on studies and research-based advice. Such expertise shall be rendered only upon the latter’s request, in compliance with its resolutions and under its guidance. The new Committee, however, is more strictly subordinateted its parent body and appears to lack all power of initiative.
In accordance with resolution 5/1 and decision 6/102 of the Human Rights Council, the 18 members of the Advisory Committee were elected on 26 March 2008, at the seventh session of the Council. As set out in resolution 5/1, the geographical distribution of members is as follows: five each from African and Asian States; three each from Latin American and Caribbean States, and Western European and other States; and two from Eastern European States.
Members shall serve for a period of three years and shall be eligible for re-election once. In accordance with resolution 5/1, the staggering of terms of membership of the Advisory Committee members was determined by drawing lots immediately after the election. Hence, in the first term, one-third of the experts will serve for one year and another third for two years. The inaugural session has been held from 4 to 15 August 2008 at the Palais des Nations, United Nations Office at Geneva
The number of sessions is greatly increased, up to 10 weekends minimum, and extraordinary sessions, notably to deal with urgent crises, need only one third membership plus one member to be convened. In fact, several extraordinary sessions have been held on Darfur, Gaza, Lebanon, Maymarand Palestine. This is a marked progress compared to the Commission with, hampered by its procedural rules.
At commission, accredited NGOs exercised certain important rights based partly on their consultative status and partly one the practice of the commission. According to that practice, NGOs were in fact accorded the rights to criticise states in public statements. The preservation of such rights under the new system was not self – evident, as the NGO consultative status had been set down by the Ecosoc, a body from which the new Council is now independent. The compromise solution was to maintain expressly NGO participation evolved in the Commission’s practise, the Council reserving, however, its rights to “review” the issue in order to ensure the best possible contribution of NGOs. NGO participation in the Universal periodic review of human rights, a key feature of new system, had some special restriction, as will be shown later.
2. The Universal Periodic Review
A more substantive improvement introduced by the HRC is the creation of a Universal Periodic Review mechanism (UPR) that will analyze the status of human rights in all UN member states, under the principles of objectivity, universality, reliability, and cooperation.
The UPR is the sound basis for UN information and action, as well as best way of eliminating “unfair selectivity”. Although the final parameters of the UPR are still being defined, the fact that now all UN members are subject to scrutiny will prevent the double-standards in the selection of the countries examined by the Council, and hopefully end the old practice by countries to seek membership in order to escape censorship (UNGA 60/251, para.5). The Council’s member’s obligation to cooperate with the body should also operate as a membership deterrent for serious human rights violators, whose failure to cooperate could propitiate an embarrassing expulsion from the body.
The review is an intergovernmental process that facilitates an interactive dialogue between the working group and the country under review. It is conducted by a UPR working group composed of the 47 Council members and chaired by the Council President.
Observer states may attend and speak at the working group, and relevant stakeholders (such as NGOs) may also attend the meetings. All Council members will undergo a review during the term of their membership, and initial members (those with one- and two-year terms) will be reviewed first.
The HRC also has the virtue of retaining and reaffirming some of the best tools of the CHR, including the so-called special procedures, the right to issue country-specific resolutions, and the granting of access to its works and sessions to human rights NGOs. The procedures were one of the great strengths of the former CHR, and encompass the invaluable range of independent expert – rapporteurs, representatives, working groups – that first the CHR and now the HRC use to investigate complaints on specific human rights violations (country mandates) and analyze global human rights issues (thematic mandates). Currently, a working group is assessing the special procedures effectiveness, and is expected to produce recommendations on how to improve them.
Among the positive aspects, we can note the broad substantive basis of the review, which include not only ratified treaties but also the Universal Declaration and unilateral human rights commitments of states.
The emphasis is placed on the sharing of best practise with a view to raising ultimately the universal level of human rights protection. In this sprit, the UPR may help to identify the massive structural human rights problems characteristic of our global age, such of the negative impact of globalisation. Another helpful aspect is the stress laid on complementarily and coordination with comparable mechanisms, such as the reporting systems of the UN treaty bodies, WTO and the ILO.
The main problem arises is the essentially inter-governmental character of the procedure. The examination of the state’s report and other documents is conducted by the three members of the Council drawn by the lot (the troika) and the conclusion is formulated by the Council as the whole. No independent expert intervenes at any stage.
Equally negative is the restriction imposed upon the NGOs. Their participation seems to be limited to the provision of written statements, if credible and reliable, to be summarised in secretariat’ short documents as one of the sources for the review and to the making general comments in the debate on the conclusion.
3. Special Procedures
The Council, like the previous Commission, maintains a system of special procedures that includes country and thematic mandates. Country mandates, which last for one year and can be renewed, allow for special rapporteurs to examine and advise on human rights situations in specific countries. Thematic mandates, which last for three years and can also be renewed, allow special rapporteurs to analyze major human rights phenomena globally.
Similar to the Commission, the special rapporteurs serve in an independent, personal capacity and conduct in-depth research and site visits pertaining to their issue area or country. They can be nominated by U.N. member states, regional groups within the U.N. human rights system, international organizations, NGOs, or individuals. A newly established “consultative group” nominates rapporteurs for country and thematic mandates. Based on the consultative group’s input, the Council president submits a list of possible candidates to Council members, who then consider each appointment.
The Council keeps however, the rights to discontinue any mandate in order to rationalise the system and a time-limited of one year, renewable up to six years maximums, was placed on country rapporteurs. Much debate took place on the new code of conduct for Special Rapporteur. Somme articles of the Code may lend themselves to undue restrictions. Thus the Rapporteurs are enjoined to full respects national legislation even under emergences regimes, and they must plan their field visits in close collaboration with the government concerned!
III. The outcome of the institution building process
General Assembly res.60/251 requires that the Council develop the modalities and necessary time allocation for the universal periodic review mechanism and complete a review of system of special procedures, experts’ advice and complaints procedure within one year of its first session. This deadline was due to be on18 June 2007, the same day that the first membership of the council and Presidency were due to expire.
In it decisions 1/102 of 30 June 2006 , the council decided to extend exceptional for one year the mandates and mandate-holders of special procedures of Commissions on Human Rights and Sub-Commission for the promotion and Protection on Human Rights as well the procedure established pursuant to Economic and Social Council resolution 1503.
Final at midnight on 18 June 2007 after long discussions, the council was able to agree on text introduce by the president of the Council on 17 June entitled” UN Human Rights Council: institution - building of the United Nations Human Rights Council that addressed many crucial details related to the work of the Council, including its mechanisms, procedures, framework, and system of universal periodic review. Some aspects of the Council’s work, however, will continue to be debated and determined by Council members.
Complying with this mandate, on 18 June 2007 - at its fifth session – the Council adopted resolution 5/1, which details modalities regarding the UPR mechanism. These modalities set the basis-review, the principles and objectives to be followed, the periodicity and order of review of countries, the process and modalities to be used, as well as the procedures to be undertaken in regard to outcomes and follow-up. Furthermore, the Council decided that each review would be conducted in one working group composed of the 47 Member States of the Council. Each state’s situation is to be examined during a three hour debate. During its sixth session that began on 21 September 2007, the Council adopted a working method and a calendar for the reviews of the 192 Member States of the United Nations to be undertaken during the first four-year cycle of the UPR mechanism, and established the precise order of the reviews. The reviews to take place in 2008 are as follows:
• First session (7–18 April 2008): Tunisia, Morocco, Algeria, South Africa, Bahrain, Indonesia, India, Philippines, Ecuador, Brazil, Argentina, Finland, United Kingdom, Netherlands, Poland, Czech Republic.
• Second session (5–16 May 2008): Gabon, Ghana, Peru, Guatemala, Benin, Republic of Korea, Switzerland, Pakistan, Zambia, Japan, Ukraine, Sri Lanka, France, Tonga, Romania, and Mali.
• Third session (1–12 December 2008): Botswana, Bahamas, Burundi, Luxembourg, Barbados, Montenegro, United Arab Emirates, Israel, Liechtenstein, Serbia, Turkmenistan, Burkina Faso, Cape Verde, Colombia, Uzbekistan, and Tuvalu.
• The remainder of the 192 reviews will be completed by 2011.
The Council also took steps to:
• Offer technical assistance to build domestic institutions in some countries “…that would help in the long-term monitoring efforts to make sure the human rights problems are solved.”
• Continue the work of the Social Forum (resolution 6/13). The Social Forum provides an opportunity to improve the interactive dialogue between the United Nations human rights machinery and various stakeholders.
• Give NGOs the opportunity to question issues of concern and engage directly with the special procedures and Member States during the interactive dialogue.• “Give voice” to victims through the complaints and the Special Procedures, contained in ECOSOC resolution 1503.
• Enable it to encourage passage of appropriate resolutions, needed to address various situations in different countries.• Establish random pilot projects in some countries, as part of the Council’s institution building to assess the severity of human rights crisis around the world.
• Establish new thematic special procedures and a new advisory body on indigenous people’s rights.
IV.
Overview of the Council’s First three Years of Work
Since its establishment, the Council has held nine
regular sessions and seven special sessions. The regular sessions addressed a
combination of specific human rights abuses and procedural and structural
issues. Three of the special sessions addressed the human rights situation in
the Occupied Palestinian Territories and in Lebanon. In December 2006, the
Council held its fourth special session on the human rights situation in
Darfur, Sudan. In October 2007, the Council held its fifth special session on
the human rights situation in Myanmar (Burma). Council members adopted a
resolution by consensus that “strongly deplores the continued violent
repression of peaceful demonstrations in Myanmar. The resolution also urges the
government to exercise restraint and to desist from violence against peaceful
protestors.
The Council held its sixth special session at the
United Nations Office at Geneva on 23 and 24 January 2008. It held two meetings
(see A/HRC/S-6/SR.1-2) during the session on human rights violations emanating
from Israeli military incursions in the Occupied Palestinian Territory,
including the recent ones in occupied Gaza and the West Bank town of Nablu.
This sixth Special Session is being held at the request of the Group of Arab
States and the Group of the Organization of Islamic Conference. The Human
Rights Council convened its 7th special session on 22 May 2008 in Geneva. This
meeting was called for by Cuba to discuss ‘the negative impact on the
realization of the right to food of the worsening of the world food crisis,
caused inter alia by the soaring food prices’.
The Council held its first meeting in Geneva, Switzerland, from June 16 to 30, 2006, adopting eight resolutions, three decisions, and two statements by Council President Luis Alfonso de Alba. A high-level meeting was held during the first four days of the session. During the sessions: parties exchanged views on a mixture of substantive and procedural issues, including the nature of the universal periodic review process, the role of human rights defenders in protecting and promoting human rights, and the overall implementation of the General Assembly resolution that created the Council.
The Council held its second regular session in Geneva, Switzerland from September 18 to October 6 and November 27 to 29, 2006. The Council adopted 18 texts that, among other things: determined that all legislative measures and actions taken by Israel that may alter the “character and legal status” of the Occupied Syrian Golan are in violation of international law and therefore null and void; urged Israel to reverse its settlement policy in the Occupied Arab Territories, and to prevent any new settlements; and requested parties who have not done so to sign the Peace Agreement in Darfur, Sudan, as well as to end ongoing human rights violations in Darfur, with a particular focus on vulnerable groups such as women and children.
The Council held its third regular session in Geneva from November 29 to December 8, 2006.At the session, then-Secretary-General Annan urged Council members not to allow their current focus on the Middle East to “monopolize attention at the expense of others where there are equally grave or even graver violations.” The Council adopted six resolutions and one decision, which included: creating an open-ended intersessional working group to make “concrete” recommendations on the Council agenda, annual program of work, methods of work, and rules of procedure; requesting the U.N. High Commissioner for Human Rights to consult with the Lebanese government on how to implement recommendations from the Commission of Inquiry report on Lebanon; and calling for the “speedy implementation” of an urgent fact-finding mission to the Occupied Palestinian Territories as directed by a previous Council resolution.
The Council held its fourth regular session in Geneva from March 12 to 30, 2007. Members adopted 10 resolutions and four decisions. Participants heard progress reports from the Council’s intergovernmental working groups on Universal Periodic Review and on the Review of Mandates. Members also adopted a resolution expressing concern with the human rights situation in Darfur. The resolution establishes a group, led by the Council’s Special Rapporteur on Sudan, to work with the government of Sudan and the African Union to ensure effective follow-up and implementation of Council resolutions and recommendations related to Darfur. The Council members also decided to discontinue consideration of human rights situations in Iran and Uzbekistan under resolution 1503 procedures.
The Council held its fifth regular session in Geneva, Switzerland, from June 11 to 18, 2007. Members considered thematic reports on the right to food and the independence of judges and lawyers, as well as country reports on Belarus, Cuba, Cambodia, Haiti, and Somalia. Council members also adopted an institution-building text and three additional resolutions.
The resolutions (1) welcomed the report of the U.N. High Commissioner for Human Rights (UNHCHR) on the follow-up report of the Commission of Inquiry on Lebanon and urged the UNHCHR to support Lebanon’s activities and programs that are consistent with the report; (2) called for the implementation of previous Council resolutions on the human rights situation in the Occupied Palestinian Territories, and requested the President of the Council and the UNHCHR to report on the implementation at the next session; and (3) welcomed the report of the U.N. Experts Group on Darfur and requested the group to continue its work for six months and to report to the Council at its next session.
At its sixth session, from September 10 to14 and December 10 to 14, 2007, the Council continued to review its process for Special Procedures. It passed resolutions expanding the mandates of the Special Rapporteurs on (1) the human rights of internally displaced persons, (2) adequate housing, (3) the protection and promotion of human rights and fundamental freedoms while countering terrorism, and (4) the freedom of religion or belief. The Council also agreed to extend the mandates of the Special Rapporteur on human rights in Sudan and the Independent Expert on human rights in Liberia for one year. Council members requested that the Special Rapporteur on the human rights situation in Myanmar conduct follow-up visits before the seventh regular Council session, and also established a new mechanism on the human rights of indigenous people. The Council also selected countries to be reviewed during the first Universal Periodic Review session. Moreover, Council members passed two resolutions on the Occupied Palestinian Territory that (1) call for the implementation of previous resolutions (S-1/1 and S-3/1), including the dispatching of fact-finding missions, and (2) call upon Israel, the occupying power, to respect the religious and cultural rights in the Universal Declaration of Human Rights by allowing Palestinian worshipers “unfettered access to their religious sites.
Meeting from 3 March to 1 April 2008 in Geneva, the Human Rights Council at its seventh regular session adopted 36 resolutions on a wide range of issues, extended the mandates of 13 Special Procedures and established the mandate of an Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation. Unable to conclude its seventh session as planned on 28 March, it extended its session through the morning of 1 April to finish hearing statements from delegations and to adopt its report to the General Assembly on the session.
The Human Rights Council held its eighth session at the United Nations Office at Geneva from 2 to 18 June 2008. The President of the Council was Mr. Doru Costea. It adopted 36 resolutions on a wide range of issues Human rights of Migrants: Mandate of the Special Rapporteur on the Human Rights of Migrants, Human rights and extreme poverty, Special Rapporteur on trafficking in persons, especially women and children, Elimination of discrimination against persons affected by leprosy and their family members, Situation of human rights in Myanmar, Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Mandate of the Special Rapporteur on extrajudicial, summary or arbitrary executions, The right to education, Promotion of a democratic and equitable international order, Mandate of the Special Rapporteur on the independence of judges and lawyers Mandate of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, Torture and other cruel, inhuman or degrading treatment or punishment.
At the ninth session, the Council heard a number of high profile reports and held interactive dialogues with the Special Procedures presenting them, including the reports by Sima Samar, the Special Rapporteur on the situation of human rights in Sudan, on the current human rights situation in Sudan and on the status of implementation of the recommendations compiled by the Group of Experts mandated by the Human Rights Council. Council held a fifth special session on the human rights situation in Myanmar (Burma).
The reaction of non-governmental organizations (NGOs), human rights groups, and governments to the new Council can be described as cautiously optimistic. Generally, they believe the new Council is an improvement over the Commission, but are disappointed with some aspects of the Council’s work during its first year. Some NGOs and governments are particularly concerned with the Council’s initial focus on Israel.
CONCLUSION
The promotion and protection of human rights is one of the fundamental aims of the United Nations. The setting of legal standards in the field of human rights and the establishment of mechanisms to monitor those standards has been one the primary means of achieving this aim.
The Commission on Human Rights has made progress in its normative role and has become quite operative. Whatever, there were many challenges facing the UN Commission on Human Rights. These challenges are by no means insurmountable, but they do require concerted and coordinated efforts from the UN, its Member States and the various groups comprising civil society.
As has been demonstrated, the Human Rights Council is new chapter and is dealing with General Assembly. The advantage of the Human Rights Council is its foreseeable greater political visibility (by being a subsidiary organ of the General Assembly instead of reporting to ECOSOC) and its greater number of regular sessions (at least three per year).
The first year of the Council was dominated by the institution-building process. True too much is yet unsettled for anyone to predict confidently the course or out come of developments now in train. However, it emphasis is put on the enabling capacities of new institutions, then the number state too could use the new institutional procedural framework in order to strengthen their systems of protecting the human rights.
Much has been accomplished in the last two years with regard to the reform of the UN human rights system. Although the changes were not as radical as initially intended, the new HRC enjoys enhanced elements to fill some gaps, such as the toughening of the membership election criteria, the new universal periodic review, the increase in the number of sessions or the possibility to suspend members, just to mention a few. The creation of the HRC is only part of a story that is still to be written. True the new institutional structures and procedures may create opportunities for change and policy innovation in promoting and protecting of human rights. After all, structures almost never establish a complete institutional closure: the fact that they are products of institutional design means that other designs or changes in the design are possible too.
Mode de citation : Jean-Baptiste HARELIMANA, « The new Human Rights Council: between continuity and innovation », MULTIPOL - Réseau d'analyse et d'information de l'actualité internationale, 24 novembre 2008.
The opinions expressed in this article are solely those of the author.
[1] The decision to replace
the Commission on Human Rights by the Human Rights Council had been made by
General Assembly resolution 60/251 (GA res. 60/51) recognizing both the achievements
and shortcomings of the Commission on Human Rights, in a vote of 170 to 4 with
3 abstentions. The Council is responsible for promoting and protecting all
human rights, addressing human rights violations, and promoting effective
coordination and mainstreaming of human rights within the UN system. In its
first year of operation, the Council convened five Regular and four Special
Sessions. In addition to the Sessions, informal consultations were held
by the various working groups tasked with developing the procedures and
guidelines by which the Council would operate, and ideally improve upon its
predecessor. Since its establishment, the Council has held nine regular sessions and
seven special sessions.
[2] The composition
of the Council at its seventh session is as follows: The term of membership of
each State expires in the year indicated in parenthesis. Angola (2010);
Azerbaijan (2009); Bangladesh (2009); Bolivia (2010); Bosnia and Herzegovina
(2010); Brazil (2008); Cameroon (2009); Canada (2009); China (2009); Cuba
(2009); Djibouti (2009); Egypt (2010); France (2008); Gabon (2008); Germany
(2009); Ghana (2008); Guatemala (2008); India (2010); Indonesia (2010); Italy
(2010); Japan (2008); Jordan (2009); Madagascar (2010); Malaysia (2009); Mali
(2008); Mauritius (2009); Mexico (2009); Netherlands (2010); Nicaragua (2010);
Nigeria (2009); Pakistan (2008); Peru (2008); Philippines (2010); Qatar (2010);
Republic of Korea (2008); Romania (2008); Russian Federation (2009); Saudi
Arabia (2009); Senegal (2009); Slovenia (2010); South Africa (2010); Sri Lanka
(2008); Switzerland (2009); Ukraine (2008); United Kingdom of Great Britain and
Northern Ireland (2008); Uruguay (2009); Zambia (2008).
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