Gerber, Paul --- "Human Rights Reform in the United Nations: The Good, the Bad and the Ugly" [2006] AltLawJl 22; (2006) 31(2) Alternative Law Journal 88

HUMAN RIGHTS REFORM IN THE UNITED NATIONS: The good, the bad and the ugly

• The Commission on Human Rights
  • The good
  • The bad
  • The ugly
• The Human Rights Council
  • The good
  • The bad
  • The ugly
• Conclusion

HUMAN RIGHTS REFORM
IN THE UNITED NATIONS
The good, the bad and the ugly

PAULA GERBER^[*]

Recently there has been extensive criticism of the effectiveness of United Nations (UN) human rights bodies. In particular the Commission on Human Rights (‘the Commission’) has been described as ‘irrelevant’^[1] and ‘positively destructive’^[2] because it has failed to act decisively when governments suppress human rights which they are legally bound to uphold. These kinds of accusations prompted Secretary General Kofi Annan to initiate a program of reform,^[3] the flagship of which was a proposal to abolish the Commission and replace it with a new body to be known as the Human Rights Council (‘the Council’). After much debate, the UN General Assembly voted overwhelmingly in favour of this proposal on 15 March 2006.^[4] Elections for membership to the Council were held on 9 May 2006 and the first session was scheduled begin on 19 June 2006.

The new Council has received very mixed reviews ranging from:

With a design which promises an institution more contemptible than its predecessor … the proposed council represents an enormous step backwards for the international protection of human rights.^[5]

to:

[the proposal] provides a unique opportunity to start putting in place a reinvigorated system for the promotion and protection of fundamental freedoms around the world and deserves the support of member States.^[6]

This article examines which of these two statements most closely represents the truth behind this reform of the UN’s primary human rights body.

The key differences between the Commission and the Council are summarised in Table 1. While the table provides a useful overview, a more nuanced approach is required in order to evaluate what the changes actually mean, and whether they are an improvement on the Commission. For this reason, this article also includes a detailed analysis of both bodies. The approach adopted is to compare the performance of the Commission and the Council against three criteria, namely: the Good, the Bad, and the Ugly. By examining the past performance of the Commission and the potential future performance of the Council against these three standards, a clear picture emerges as to whether replacing the Committee with the Council is indeed a change for the better.

Table 1

	The Commission on Human Rights	The Human Rights Council
Size	53 member states	47 member states
Sessions	A single six week session each year. Special sessions can be scheduled, but none ever were.	Minimum three sessions per year, for a total duration of not less than 10 weeks. Special sessions can be scheduled with the support of one-third of the membership.
Selection criteria for membership	None	When electing Council members, the General Assembly shall ‘take into account the candidates’ contribution to the promotion and protection of human rights and their voluntary pledges and commitments made thereto.’[7]
Election of Members	States are nominated by regional blocs and voted on to the Commission by the Economic and Social Council (ECOSOC). However, there are often not more candidates than seats, meaning there is no real election. No ability to suspend the membership of a state which is committing gross human rights violations.	Bare majority of General Assembly needed to become a member. A two-third majority required for suspending a member for gross human rights violations.
Geographical make-up of membership	African states: 15, Asian states: 12, Eastern European states: 5, Latin America and the Caribbean states: 11, Western Europe and Others: 10	African states: 13, Asian states: 13, Eastern European states: 6, Latin America and the Caribbean states: 8, Western Europe and Others: 7
Membership term	Members appointed for three year terms with no limit on the number of consecutive terms. As a result some states have de facto permanent membership.	Members appointed for three year terms, but are not eligible for immediate re-appointment after two consecutive terms.
Status within the UN	Subsidiary body of ECOSOC.	Subsidiary body of the General Assembly.
Reviewing member states’ own human rights record	Members invariably block any attempt to review their own human rights record.	Must periodically review the human rights records of all states, starting with those of its own members.

The Commission on Human Rights

The Commission is a body almost as old as the UN itself, having been established in 1947^[8] in an endeavour to ensure that human rights were accorded the importance given to them under the United Nations Charter.^[9] The Commission’s mandate was to promote human rights. It purportedly did this by examining, monitoring and publicly reporting on human rights situations in specific countries or territories (known as country mechanisms or mandates) and on major phenomena of human rights violations worldwide (known as thematic mechanisms or mandates). Given the state of human rights in the world since 1947, there is no denying that the Commission has had a challenging role.

The good

It would be a mistake to only look at the failures of the Commission and to ignore or discount its significant achievements over its 59-year history. Perhaps the Commission’s greatest single accomplishment was its very first task, the drafting of the Universal Declaration of Human Rights. This document and the two subsequent covenants^[10] exemplify the standard-setting function of the Commission. International human rights law today owes much to the Commission which first articulated the core human rights obligations of states. These human rights documents (colloquially known as the international bill of rights) provided the foundation on which the international human rights law framework has been built.

For the first 20 years of its existence, the Commission declared that hearing complaints about human rights violations was beyond its mandate. However, in the 1970s it implemented what has become known as the ‘1503 Procedure’^[11] which authorised the Commission to hear individual complaints about ‘situations which appear to reveal a consistent pattern of gross and reliably attested violations of human rights’.^[12] Between 1972 and its demise in 2006, 84 states were subjected to scrutiny.^[13] The confidential 1503 procedure, while slow and bureaucratic, was, until recently, a useful way of investigating and reporting on grave human rights abuses. The 1503 procedure was particularly useful when it came to reviewing complaints against countries that had not ratified the Optional Protocol to the International Covenant on Civil and Political Rights and thus could not have their conduct examined by the Human Rights Committee, established under that treaty, pursuant to an individual petition. Alas, in the modern era, the 1503 Procedure, like so many other procedures in the Commission, was the subject of political influences and manipulations and as a result many offending regimes were able to escape scrutiny.^[14]

A further feature of the Commission that fell under the classification of ‘good’ was the nature and degree of non government organisation (NGO) participation. Economic and Social Council (ECOSOC) resolution 1996/31 addressed the consultative relationship between the UN and NGOs. Part V of that resolution is devoted to NGO consultation with the Commission and provides that NGOs may propose agenda items, attend meetings, submit written statements and make oral presentations during meetings. NGOs have a wealth of expertise as well as local knowledge of human rights situations ‘on the ground’ in numerous states, which made them an invaluable resource for the Commission.

For many years the Commission made use of NGOs’ extensive knowledge base. However, as membership of the Commission changed, so too did the reception that NGOs received. In 1999 the Swiss NGO Christian Solidarity International was expelled after a request by Sudan, because it had invited the Southern Sudanese rebel chief John Garang to address the Commission. Similarly, in 2000 the Transnational Radical Party faced suspension at the behest of Russia after allowing a Chechen representative to participate in its submissions to the Commission. These examples illustrate the increasingly hostile reception that NGOs received

at the Commission.

The above are examples of good aspects of the Commission, rather than an exhaustive exploration of commendable practices. They represent qualities of the Commission which the author hopes will be retained by the new Council. Unfortunately, as the following demonstrates, the ‘good’ features of the Commission were far outweighed by the ‘bad’ and ‘ugly’.

The bad

There is no denying that the Commission was dysfunctional. One of its recent low points was its 59th Annual Session in 2003. With Libya as chair, the expectations for this meeting were not high. But alas, not even these minimal expectations were reached. One only has to read Amnesty International’s reports on Libya to understand why there was such an outcry when it was appointed chair of the Commission.^[15] The Libyan chair quickly stamped its leadership on the Commission. One of its more controversial actions was a proposal to the secretariat to suspend the highly regarded and well respected international NGO Reporters without Borders as a consultative member because of its criticism of Libya’s appointment as chair.

In the past, the Commission had frequently addressed proposals on the death penalty. In the 59th Session, no such proposal was forthcoming from any member, with the result that China did not have to defend its execution of 1526 people in 2002. Similarly, Russia avoided being denounced for atrocities committed by its troops in Chechnya, and an alliance of African and Islamic nations saw the defeat of European resolutions on Sudan and Zimbabwe.^[16] Cuba, which during the course of the 59th Session, sentenced 79 dissidents to heavy prison sentences and executed three ferry hijackers, was subjected to only a weak resolution asking them to receive a UN envoy.^[17]

The 59th Session also saw the condemnation of special rapporteurs, a group that had always been highly respected for their expertise and independence. In particular, the Special Rapporteur on Torture had his impartiality questioned by the Algerian Ambassador, who demanded his resignation. It should be noted that Algeria had not even allowed the Special Rapporteur on Torture to visit.^[18]

Another ‘bad’ feature of the 59th Session was the over-use of the ‘non-action’ procedure. This is a technique employed by member states anxious to prevent discussion on a particular matter. By evoking the ‘non-action’ procedure a state can call for a vote which, if passed, blocks any further discussion on that subject.^[19] This loophole was being increasingly used effectively to stifle debate and obstruct the Commission from carrying out its core functions. The ‘non-action’ procedure is frequently used by China and Zimbabwe to smother debate about the human rights situations in their countries, and in 2003 Pakistan proposed a ‘non-action’ motion to foreclose debate on a Brazilian resolution to respect the human rights of all people regardless of their sexual orientation. If the Council is to be an improvement on the Commission, it must not carry over this destructive practice of ‘non-action’ motions.

In the end, the 59th Session closed with most of the six weeks being spent on political point scoring and strategic game playing without any substantive advances in human rights. In fact, human rights monitoring regressed with numerous restrictions imposed on special rapporteurs, and the Sub-Commission on the Promotion and Protection of Human Rights being told that it ‘should not adopt country-specific resolutions … and … should refrain from including references to specific countries’.^[20] This move effectively gagged the Sub-Commission from reporting on human rights abuses in any country.

The 59th Session highlighted all too clearly that the best way for a country to avoid scrutiny of its human rights conduct was to gain a seat on the very body set up to monitor human rights abuses. The above incidents alone justify the abolition of the Commission, even without consideration of the ‘ugly’ behaviour set out in the next section.

The ugly

The ugliest point in the history of the Commission undoubtedly occurred when a special investigator working on Rwanda warned the Commission in August 1993 (eight months before it began) that genocide was likely in Rwanda. Unfortunately, this was not read until the March 1994 meeting of the Commission, and even then received little attention, being lost in a large agenda of other human rights abuses. While much of the criticism of the UN over the Rwanda massacre has focused on the Security Council^[21] the Commission cannot escape responsibility for its role in this dark period of history. As the UN’s principal body for the promotion and protection of human rights, it should have done more to prevent a genocide that so many were predicting was about to occur. The blood of this failure continues to stain the hands of the Commission.

The Human Rights Council

Many fear that the Council differs from the Commission in name only. Kofi Annan acknowledged this when he said: ‘[h]ow different the Council is from the Commission will depend in large part on how committed Member States are to make it better’.^[22] While this is true to a degree, the changes are significant enough to ensure that the Council is not simply the Commission in sheep’s clothing.

The good

Perhaps the best aspect of the Council is the fact that it is new and doesn’t come with the ‘baggage’ of the Commission and thus is not burdened with ineffective but entrenched practices and procedures. It can, in effect, start with a clean slate.

Making the Council a subsidiary organ of the General Assembly is an improvement on the Commission which was a subsidiary body of ECOSOC. The United States pushed for the Council to be a principle organ of the UN with the same standing as the General Assembly rather than being subordinate to it. While this would have given greater credence to the Council, what is more important is how the body will actually function, rather than where it is located within the UN hierarchy.

The requirement that the Council review the human rights records of all countries beginning with its own members is a definite improvement on the Commission. States like Sudan and Zimbabwe may not race to get on to the Council in the same way they did the Commission, since membership will not shield them from an examination of their own human rights record.

Empowering the General Assembly to suspend the membership of a state from the Council if it commits gross and systematic violations of human rights is most definitely a positive development. It is a move that should motivate Council members to ensure that they do not commit grave human rights abuses, at least during their term on the Council.

It is a relief to note that the Council has been empowered to review, improve and rationalise the mechanisms and functions of the Commission, specifically the complaints procedure.^[23] It is hoped that the Council will take this opportunity to reform the 1503 Procedure and ‘non-action’ motions, both of which were subject to manipulation within the Commission.

The foundations have been laid for the Council to welcome NGOs in the same way the Commission did before it became a dysfunctional political body. In particular, para 5(h) of the resolution creating the Council states that it should ‘work in close cooperation in the field of human rights with governments, regional organizations, national human rights institutions and civil society’. Paragraph 11 refers to the Council applying practices that ensure ‘the most effective contribution’ of NGOs. These changes should lead to a significant enhancement in the quality of human rights dialogue taking place within the UN.

The bad

Kofi Annan’s original proposal called for Council members to be elected by a two-thirds majority of the General Assembly, that is, the same majority that is needed for a member to be suspended.^[24] In the end, however, the resolution that was passed provides that states be elected to the Council by a bare majority of votes in the General Assembly (ie 96 votes). The original idea of a two-thirds majority vote in order for a state to get on the Council would have been preferable, if only to ensure that members of the Council enjoy widespread support.

One of the common complaints about the Commission was that its large size made it inefficient and unwieldy. The inability or unwillingness of several state members to work together on the Commission frequently paralysed that body. Thus in July 2004, it was the smaller Security Council and not the Commission that passed a resolution threatening Sudan with sanctions unless the situation in Darfur improved. The Commission’s inability to pass this resolution not only embarrassed the UN, but also clearly evidenced the need to replace the Commission with a body that could quickly and effectively deal with gross human rights violations whenever and wherever they arose.

The Council which consists of 47 members, rather than the Commission’s 53 members, is equally unwieldy. It would have been preferable for the Council to be closer to the size of the Security Council with its 15 members. A smaller Council, however, would be less representative. This problem could be ameliorated by shortening the terms which members serve from three years to two years, thereby ensuring membership is accessible to more states.

The increase in meeting time from six weeks a year for the Commission to ten weeks for the Council is relatively insignificant, although it is useful that the 10 weeks are spread over three sessions. While the Council can schedule additional meetings, it remains to be seen whether this will be utilised in practice. It would have been preferable for the Council to be permanently in session, or at least meet for considerably longer than ten weeks a year. The lack of resources and tight budget under which the UN operates these days was undoubtedly a factor in the decision to limit meetings to ten weeks a year. It is suggested that reducing the size of the Council would have made it easier, and less costly, to schedule longer and more frequent meetings.

The ugly

It is too early to determine whether there are any really ‘ugly’ features of the new Council. While the resolution included aspects that are less than ideal, none are truly ‘ugly’ when compared to the recent practices of the Commission.

The only feature that comes close to attracting the label of ‘ugly’ is the failure to have clear selection criteria attached to membership of the Council. If the Council is to avoid the credibility issues that plagued the Commission in recent times, it needs to have objective, verifiable, membership criteria. The development of such criteria is obviously difficult, but that should not relieve states of the moral obligation to cultivate at least some concrete guidelines in order to avoid the politicisation of the Council in the same way that the Commission came to be politicised.

The resolution establishing the Council, states that when electing Council members the General Assembly should ‘take into account the candidates’ contribution to the promotion and protection of human rights and their voluntary pledges and commitments made thereto’.^[25] This too vague to have any great impact.

Let us consider what specific membership criteria might look like. If the criteria included ratification of the majority of key human rights treaties, the world’s only super-power would not qualify for membership; the United States having ratified only three of the seven major conventions.^[26] If the criteria included a requirement that a state be up to date with its reports to human rights treaty committees, it would exclude many states which are not gross human rights abusers but which have inadequate resources to comply with the onerous reporting requirements. To develop criteria which included additional examination of states’ human rights records would be problematic. What does one measure a state’s human rights against?^[27] What time period does the review cover? Who conducts the review and makes a determination about whether or not a state passes?

The United States’ suggestion that membership should not be open to countries that are currently the subject of Security Council sanctions seems a reasonable criterion, but should not be the sole measure since this would currently exclude only seven countries.^[28]

While the ideal scenario would be to have clearly defined selection criteria at this stage, five months of negotiation have proved that that is not possible. The resolution establishing the Council calls for it to be reviewed by the General Assembly in five years.^[29] If appropriate selection criteria have not been developed by that time, the General Assembly can revisit it as part of that review process.

Conclusion

United States Ambassador to the United Nations, John Bolton colourfully described his country’s attitude to the Council when he said ‘We want a butterfly. We’re not going to put lipstick on a caterpillar and declare it a success.’^[30] This author agrees with Mr Bolton that the Council is no butterfly. However, it is suggested that a caterpillar with lipstick is better than a decaying carcass of caterpillar, which is what the Commission had become!

Nobody is suggesting that the new Human Rights Council is the perfect answer to the problem of how the UN can better promote and protect human rights. But every decision made by the United Nations is a product of compromise; only through negotiations and concessions are agreements ever reached. The negotiations that resulted in the passing of a resolution establishing the Council represent a significant step forward. It is not utopia, but it is a major improvement on the Commission and a useful platform from which further reform can be launched in the future.

While the Council does not satisfy the demands of the United States, it has been cynically suggested that the only reform that was likely to appease the US was to ‘abolish the veto for all nations save the United States and elect John Bolton as secretary-general’.^[31] The vote in the General Assembly clearly indicates that the Council has overwhelming support. The result is that the United States finds itself once again isolated when it comes to important developments in international human rights law. It is renowned for its refusal to ratify the Convention on the Rights of the Child, and shares this ‘honour’ with only one other country: Somalia. Similarly, the International Criminal Court was set up despite strong opposition from the United States, and so far the sky hasn’t fallen in. The world seems to be realising that the United States is just one nation (albeit a powerful one) and that important international bodies such as the Council can exist without America’s blessings. The Council is by no means ideal, but the Commission was certainly worse.

---

^[*] PAULA GERBER is an Associate Director of the

Castan Centre for Human Rights Law and teaches law at Monash University.

© 2006 Paula Gerber

email: [e-mail]

^[1] Ambassador Razali Ismail’s Statement to the General Assembly plenary meeting, 17 September 1996, <www.amnesty.org/ailib/intcam/unchr50/tab.htm#(1)> at 9 May 2006.

^[2] Linda Chavez, ‘The UN has Become Irrelevant’ (2005), Human Events <findarticles.com/p/articles/mi_qa3827/is_200502/ai_n9521999> at 9 May 2006.

^[3] The process began in 1997 with the Secretary General’s Report Renewing the United Nations: A Program for Reform A/51/950, 14 July 1997. Further reports have since been published including In Larger Freedom: Towards Development Security and Human Rights for All A/59/2005, 21 March 2005 which mapped out organisational priorities including poverty alleviation, development, the prevention of conflict and human rights; and Investing in the UN: For A Stronger Organization Worldwide A/60/692, 7 March 2006 which dealt with reform of the management of the Secretariat.

^[4] The votes were 170 in favour and four against. The four countries which voted against the Council were the United States, Israel, the Marshall Islands and Palau. Venezuela, Iran and Belarus abstained.

^[5] Anne Bayefsky, ‘A Commission by Another Name: The U.N.’s Human-rights Cure is Worse than the Disease’ (2006) <www.hudson.org/index.cfm?fuseaction=publication_details&id=3886> at 9 May 2006.

^[6] Statement by the UN High Commissioner for Human Rights, Louise Arbour, 23 February 2006, ‘High Commissioner for Human Rights Urges Support for Human Rights Council’ <www.ohchr.org/english/press/hrc/hrc-hc-english.pdf> at 9 May 2006.

^[7] Resolution establishing the Council, A/Res/60/251, 15 March, 2006, para 8.

^[8] Established by ECOSOC pursuant to art 68 of the UN Charter.

^[9] Human rights are referred to seven times in the Charter, namely in the Preamble and in arts 1, 13, 55, 62, 68 and 76.

^[10] International Covenant on Civil and Political Rights (ICCPR), opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976); International Covenant on Economic, Social and Cultural Rights (ICESCR), opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

^[11] Named after the number of the resolution passed by the ECOSOC. The procedure was amended in 2000 but continued to be referred to as the 1503 Procedure.

^[12] Resolution 1503(XLVIII) of the ECOSOC para 5.

^[13] See <http://www.ohchr.org/english/bodies/chr/stat1.htm> at 9 May 2006.

^[14] Howard Tolley Jr, ‘The Concealed Crack in the Citadel: The United Nations Commission on Human Rights’ Response to Confidential Communications’ (1984) 6(4) Human Rights Quarterly 420, 454 where the authors cites the example of a smaller country such as Benin, without influential supporters, being subjected to greater review than more powerful states with support from regional blocs.

^[15] See, eg, Libya: Towards Ensuring Human Rights Protection. Initial Findings of Amnesty International Visit (2004) <http://www.web.amnesty.org/library/Index/ENGMDE190052004?open & of=ENG-LBY> at 9 May 2006. This report refers to people being convicted for peaceful political activities; the use of arbitrary detention; torture; disappearances; and the widespread application of the death penalty.

^[16] Jean-Claude Buhrer, UN Commission on Human Rights Loses all Credibility (2003) Reporters Without Borders <http://www.rsf.org> at 9 May 2006.

^[17] E/CN.4/2003/L.11.

^[18] Buhrer, above n 16.

^[19] Rules of Procedure of the Functional Commissions of the Economic and Social Council r 65, art 2 states: ‘A motion requiring that no decision be taken on a proposal shall have priority over that proposal’.

^[20] Resolution 2003/59, 24 April 2003, para 8(a).

^[21] See, eg, R Al-Qad, Eyewitness to a Genocide: the United Nations and Rwanda (2002) and The United Nations and Rwanda, 1993–1996, Dept of Public Information, United Nations (1996).

^[22] ‘Secretary-General’s statement on the Human Rights Council’, 23 February 2006, <http://www.un.org/apps/sg/sgstats.asp?nid=1933> at 9 May 2006.

^[23] Resolution establishing the Council, above n 7, para 6.

^[24] The Secretary General In Larger Freedom: Towards Development Security and Human Rights for All 21 March, 2005 A/59/2005, para 183.

^[25] Resolution establishing the Council, above n 7, para 8.

^[26] The United States has ratified the ICCPR; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the Convention on the Elimination of All Forms of Racial Discrimination. The United States has refused to ratify the Convention on the Rights of the Child; the Convention on the Elimination of All Forms of Discrimination against Women; the ICSECR; and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

^[27] Should states be measured only against treaties they have ratified? Or all of the seven major human rights conventions regardless of whether they are a signatory? Could customary international law be used as a measure, for example consider whether state has engaged in genocide or torture?

^[28] The seven countries are: Cote d’Ivoire, Democratic Republic of the Congo, Liberia, Rwanda, Sierra Leone, Somalia and Sudan.

^[29] Resolution establishing the Council, above n 7, para 16.

^[30] ‘A Caterpillar with Lipstick’, Chicago Tribune (Chicago), 26 February 2006.

^[31] Stanley Meisler, ‘It Works Well. Tweak It: Right-wing Critics want to use Reform as a Club to Beat the Independence out of the World Body’, Los Angeles Times (Los Angeles), 6 November, 2005.