Morris, Tony --- "1 year on - The new United Nations Human Rights Council" [2007] HRightsDef 17; (2007) 16(2) Human Rights Defender 15

• 1 Year On: The new United Nations Human Rights Council
• The Commission on Human Rights
• The New Council

1 Year On: The new United Nations Human Rights Council

Tony Morris

Human rights, along with development and security, constitute what Kofi Annan, the former United Nations (‘UN’) Secretary General, refers to as the ‘three pillars’ for UN work. Recent reform has sought to increase the institutional capacity of the UN and cooperation among its state party members in order to support the effective implementation of these pillars. The centerpiece of human rights reform, the new Human Rights Council (‘Council’), first met in Geneva in July 2006. Some commentators have anticipated that this heralds a ‘New Chapter for Human Rights’. This article explores the first year of the Council.

The Commission on Human Rights

The Commission on Human Rights (‘Commission’) was established in 1946 by the UN Economic and Social Council to ‘promote and protect human rights’.[1] For 60 years the Commission did some good work.[2] When it was established just after World War II there was minimal human rights law. Since then the Commission has made an important contribution to standard setting and developing the institutional capacity required to promote and protect human rights. Significantly, it drafted and adopted the Universal Declaration of Human Rights (‘UDHR’)[3] , and drafted the International Covenant on Civil and Political Rights (‘ICCPR’) and the International Covenant on Economic, Social and Cultural Rights (‘ICSECR’).[4]

However, the Commission, as a political body consisting of member states, increasingly became the subject of criticism from various quarters. Up until 1989 a general polarisation between Cold War spheres of influence was evident. Since then, many states have been determined to avoid accountability for their human rights obligations. Some of this criticism of the Commission was warranted and its overall credibility became the topic of discussion in the corridors of Geneva’s Palais des Nations. States with poor human rights records were consistently selected as members. The Commission developed a reputation for selectivity in the treatment of country situations and a lack of objectivity in debates. Double standards became a problem. At times, serious violations by some countries would not be addressed, while resolutions would be adopted on comparatively less serious situations. Other resolutions were watered down. Regional groupings and subsequent bloc voting hindered open debate.[5] Important urgent action required to stop human rights violations did not always happen. The system of Special Procedures[6] - independent rapporteurs whose mandate is to examine, monitor and report on country human rights situations[7] or thematic issues[8] - were under threat, as was the participation of civil society. The Commission only met for six weeks each year, ensuring frantic discussion for a short period while failing to adequately address issues arising during the remainder of the year. These problems indicated the poor collaboration between states, which consequently weakened the potential for the Commission to contribute to the universal protection of human rights and fundamental freedoms.

The High-level Panel’s report on ‘Threats, Challenges and Change’ in 2004, along with Secretary General Annan’s response in 2005, pointed to the end of the Commission. Annan’s words were strong. He wrote:

The Commission’s capacity to perform its tasks has been increasingly undermined by its declining credibility and professionalism. In particular States have sought membership of the Commission not to strengthen human rights but to protect themselves against criticism or criticise others. As a result, a credibility deficit has developed, which casts a shadow on the reputation of the United Nations as a system as a whole.[9]

The Secretary General asked states for a number of concessions: the replacing of the Commission with a smaller Council; the creation of a universal peer mechanism to review the human rights performances of members; more regular meetings; and a strengthening of the position of human rights within the UN system. On 15 March 2006 the General Assembly (‘GA’) established the Council.¹⁰

The New Council

“The Council’s institution building and its substantive human rights work are central to the global protection of human rights. At stake is the will to collaborate and find multilateral solutions to major human rights concerns of the day. . ”

The inaugural session of the Council took place in Geneva on 19 June 2006. An important change is that the Council meets more regularly than its predecessor; it will meet at least three times a year for a total of 10 weeks. At the time of writing, five regular sessions[11] increased.[13] Unfortunately the Council was not granted additional and four special sessions12 have been held. Council members status within the UN system akin to that enjoyed by the Security Council have been reduced from 53 to 47, allowing for marginally fairer and the GA; rather, it is a subsidiary body of the GA.[14] proportional representation of geographic groupings of the UN’s 192 state members; representation from the Asian and African groups has The Council was given one year for institution building.[15]

Through a tedious process of negotiation and consensus modalities introduced at the end of the Fifth Session in June 2007 were, on the whole, positive.

The Special Procedures remain largely in tact, although two country mandates – those of Cuba and Belarus - were removed. A new appointment process was developed. A Consultative Group made up of representatives of the regional groups will recommend candidates for mandates to the President of the Council, who, after consultation with members of the Council, will then make appointments. After considerable debate, a Code of Conduct which sets out criteria for mandate holders to follow in their work was agreed to.

A Universal Periodic Review was created to periodically review the extent to which a state has fulfilled its human rights obligations and commitments under international law. All member states of the Council will be reviewed during their membership, as will all observer states over time. A Working Group comprised of all member states and the President will review each state’s performance. The strength of the new mechanism will be the attention it draws to a state’s human rights violations in a non-selective way due to the compulsory nature of the review. Attention to the human rights records of states who seek election to the Council will also occur. A state’s technical capacity to protect and promote human rights will be enhanced, as on the ground assistance will be provided by the Office of the High Commissioner for Human Rights (‘OHCHR’) in the implementation of the report.

A Human Rights Council Advisory Committee (‘Committee’) replaces the old Sub-Commission. Composed of 18 experts, the Committee will act as a think tank to the Council. Special Sessions can be convened far more easily and there has been greater participation of civil society.

Over the first year, enhanced non-government organisation (‘NGO’) participation, combined with increased access to advocacy, the ability to present statements to the Council, and participate in interactive dialogues between states and experts, has provided Council debates with alternative perspectives and evidence. The transparency of the process has accordingly increased.

A Complaint Procedure is being developed to address consistent patterns of gross and consistent violations. Based on the old 1503 procedure,[16] two Working Groups will be established to examine communications and to bring violations to the attention of the Council.

While the institution building of the Council has been largely positive, its substantive record has been less impressive. At the first session of the Council in June 2006, hopes were high when two standard setting pieces of work were completed: adoption by consensus of the International Convention for the Protection of All Persons from Enforced Disappearances,[17] and the adoption by majority vote of the UN Declaration on the Rights of Indigenous Peoples.[18] The Council referred these instruments to the GA for adoption. Further, a resolution extending the mandate of the Working Group considering the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights[19] for a further two years was passed. The Chairperson of the Group was requested to present a draft text in two years.[20] Cooperation seemed positive. This continued into the next regular session where discussions were generally constructive and positive, except on the topic of the Occupied Palestinian Territories. However, cooperation needs to be sustained during the discussions of a variety of challenging issues to ensure that the new Council does not repeat the mistakes of the Commission. The Council’s inability to address many egregious human rights abuses continued, demonstrating a lack of cooperation and multilateralism.

With one year passed it can be said that a lack of objectivity and balance remains. The Council’s independent experts have had minimal opportunities to engage with the Council. In the second and third regular sessions some states attacked individual mandate holders. For example, Algeria, on behalf of the African Group, attacked the Special Representative of the Secretary General on Human Rights Defenders; Pakistan, on behalf of the Organisation of Islamic Conference (‘OIC’), attacked the Special Rapporteur on the Right to Housing and the Special Rapporteur on the Right to Health; Nigeria attacked the Special Rapporteur on Extrajudicial Executions. The High Commissioner for Human Rights (‘Commissioner’) failed to defend mandate holders when their integrity and independence were criticised. There has been limited debate concerning the situation of human rights in Iraq and Afghanistan. Many states are careful not to introduce debate. For example, Russia will not engage in debate about Afghanistan as it risks criticism from the OIC for its own human rights violations in Chechnya.

Polarisation has also continued. The Africa Group and the OIC portray confrontation as characteristic of the North-South divide. When the African Group and OIC combine, they control the majority of votes. Their members are urged to follow the position of the Group and the OIC in return for protection from future criticism. This practice was evident in the Council’s inaction over atrocities being committed in Darfur. Throughout the past year, the Commissioner maintained a strong focus on Darfur, calling for urgent action to stop attacks on villages, the killing of civilians, rape and forced displacement. However, the African Group and the OIC watered down a resolution condemning the Sudanese Government for aiding militia. Sudan is a member of the African Group, the OIC and the Arab League of States. Consequently, during the Council’s third session the resolution merely expressed ‘deep concern’ regarding the situation, avoiding any outright criticisms of the Sudanese Government.[21] The African Group argues that double standards exist, specifically, that the continuing acquiescence of the UN over Israel’s occupation of Palestine, and its implementation of policies and actions which violate the human rights of Palestinians and Israeli Arabs, erodes the credibility of the Western European and Others Group in asking the Council to condemn the Government of Sudan.

“The Council’s institution building and its substantive human rights work are central to the global protection of human rights. At stake is the will to collaborate and find multilateral solutions to major human rights concerns of the day. . ”

The Council’s institution building and its substantive human rights work are central to the global protection of human rights. At stake is the will to collaborate and find multilateral solutions to major human rights concerns of the day. The first 12 months of the new Council has witnessed consensus on institution building. However, in its substantive work, old rivalries have reappeared, making collaboration difficult. The Council’s first year provides a warning: without international solidarity, collaboration and consensus, the interconnected pillars of human rights, development and security will not stand as strong as they can, thereby endangering quality of life, not just for the world’s least powerful, but for all of us.

Dr Tony Morris wrote this article while working for the International Service for Human Rights (ISHR), a Geneva based NGO. The contents of this article are the personal views and comments of the author and do not necessarily reflect the views of ISHR. Dr Morris is now based in Phnom Penh working for a development NGO.

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[1] UNESCO Res E/RES/9(II) (21 June 1946).

[2] See M Nowak, ‘From the Human Rights Commission to the New Council’ in J Almqvist and Isa Gomez, The Human Rights Council: Challenges and Opportunities (2006) 19.

[3] GA Res 217A(III) (10 December 1948).

[4] All three are collectively known as the International Bill of Rights.

[5] There are five regional groupings within the UN system: WesternEuropean and Others Group (WEOG); Eastern European Group (EEG); Group of Latin American and Caribbean States (GRULAC); Asia Group; African Group; as well as the powerful Organisation of Islamic Conference (OIC) and the Arab League of States.

[6] . Special Procedures include special rapporteurs, representatives of the Secretary General, independent experts and working groups.

[7] . The UN has previously focused its attentions on Belarus, Burundi, Cambodia, Occupied Palestinian Territories (OPT), Somalia, and Sudan.

[8] . Specific issues that have attracted the attention in the UN have included adequate housing, arbitrary detention, extreme poverty, human rights defenders, rights to health, torture, trafficking in persons, and violence against women.

[9] . Kofi Annan, ‘In larger freedom: development, security and human rights for all’, Report of the Secretary-General of the United Nations for decision by Heads of State and Government in September 2005 (21 March 2005) [182].

[10] . GA Res 60/251. 170 Member States voted in favour of the Resolution with 4 voting against (United States, Israel, Marshall Islands and Palau).

[11] . 19-30 June 2006; 18 September-6 October 2006; 29 November-8 December 2006; 12-30 March, 2007; and, 11-18 June 2007.

[12] . 5-6 July 2006 on the human rights situation in the Occupied Palestinian Territory (‘OPT’) since 1967; 11 August 2006 on the human rights situation in Lebanon caused by Israeli military operations; 3-15 November 2006 on Israeli military incursions in the OPT, including Northern Gaza and the assault on Beit Hanoun; 12-13 December 2006 on the human rights situation in Darfur.

[13] . Allocated seats are: African Group: 13 seats; Asian Group: 13 seats; Eastern European Group: 6 seats; Latin American and Caribbean Group: 8 seats; and Western and Others Group: 7 seats. To be elected to the Council, a state must achieve an absolute majority of the 192 members of the General Assembly - 97 votes.

[14] . GA Res 60/251[1].

[15] . Working groups, whose task is to draft procedures for these mechanisms, have been regularly meeting in Geneva for the last 12 months and their final drafts were adopted at the 5th Session of the Council, 11-18 June.

[16] . ECOSOC Res 1503 (27 May 1970) as revised by ECOSOC Res 2000/3 (19 June 2000).

[17] . HRC Res 1/1 (29 June 2006) A/61/53, 3.

[18] .. HRC Res 1/2 (29 June 2006) A/61/53, 8.

[19] . The protocol will allow for individuals or groups under the jurisdiction of state parties to submit complaints of violations of the Covenant after domestic remedies have been exhausted.

[20] . HRC Res 1/3 [2].

[21] . HRC Res A/HRC/2/L.44.