Issue 34 October 2006 - A Snapshot: Developments by the UN Human Rights Council, and Office of the High commissioner for Human Rights
A Commentary on the Progress of the New UN Human Rights Council
The UN Human Rights Council ("the Council"), established just this year as reported in the Journal Issue 32, is in its second session in Geneva and was due to conclude on October 6, 2006. The replacement for the former Human Rights Commission ("the Commission") will be under scrutiny as to whether it proves to be a stronger and more effective body than its discredited predecessor.
Created as a subsidiary body of the General Assembly, the Council has assumed the mandates, mechanisms, functions and responsibilities of the Commission. The challenge will be to ensure the Council meets the expectations of transparency, fairness and impartiality and to ward off the criticisms levied at the late Commission of becoming overly politicised and selective. Some of the more successful features of the Commission have been preserved, such as the practices of N GO participation, use of independent Rapporteurs and the authority to adopt individual country resolutions and complaint procedures. There are also significant new attributes of the Council adopted to improve the Council's effectiveness and credibility.
The New System
To deal with the ever increasing workload demands the Council has been established to allow for longer and more frequent meetings than the Commission of three sessions a year, one no less than every 10 weeks. This ought to ensure the Council wi1l be able to hear from the Special Procedures with regularity at each of the meetings throughout the year while reports are up to date and before deterioration of a given situation. Additionally, there is the ability to have special sessions if the need arises at the request of a member of the Council and with support from one-third of the Council. This has already been put into effect by the Council in addressing the situation of the Occupied Palestinian Territories and the crisis in Lebanon and is a welcome feature of the new Council.
The revamped election process ensures that each member of the Council must be approved individually and directly by a secret ballot. The US in particular was critical of the omission of a clause which would exclude states sanctioned for human rights abuses by the Security Council to participate. Instead, the criterion was created that members must: "take into account the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments made thereto. "Once elected they are to uphold the highest standards in the promotion and protection of human rights, fully cooperate with the Council, and reviewed under a periodic review mechanism during the term of their Membership.”
It has been commented that the operation of this mechanism is likely to prove difficult and there has been criticism of the election of a number of states with poor human rights records such as China, Pakistan, Russia and Tunisia. Elected states have made their pledges and it remains to be seen through the monitoring of human rights organisations if these standards are to be implemented.
The Council now allows for a more equitable geographic distribution reflecting General Assembly membership with the majority of members coming from Africa and Asia. It is hoped that, by allowing for 47 members, smaller states will be afforded the opportunity to participate at a high level, although this will also inevitably lead to increased political debate amongst members. Further safeguards of the new structure include that Council membership is restricted to two consecutive terms, and any member may be suspended by a two thirds vote of the Assembly.
A significant new provision made in the creation of the Council is that all members of the new Council, rather than a select few, will be subject to a universal periodic review ("UPR") mechanism that examines their human rights records. A potential outcome of the UPR is a decision that the human rights situation in a particular country should be addressed during a Council session immediately following or at periodic intervals after the review, or in a special session. It has been commented, however, that it will prove to be a major challenge for the new Council, having worked out the modalities for this new procedure, to complete periodic reviews for all elected Council members in the following two years.
Human Rights Watch ("HRW") has urged that the Council develop a flexible system for considering human rights violations that will provide for escalating levels of Council interaction dependent on the situation. Council Resolution 60/251 provides for a number of potential bases for discussion of human rights situations and a flexible approach under which situations can be raised is to be encouraged. The UNHCHR, General Assembly and Security Council ought to be able to add situations for immediate discussion by recommendation or request. Furthermore, it is anticipated that a wide range of actions should be available to the Council such as technical assistance, submission of commitments by the state involved, statements or a resolution. Unlike the former Commission, possible outcomes such as technical assistance and cooperation are now to form part of all discussions. The effective implementation of this approach will be reflected upon in the coming year of the Council's work.
Work to Date - First Session
The first session of the Council held in June of this year dealt largely with establishing its framework. A range of issues were addressed and views exchanged with the representatives of some Special Procedures, the sub-Commission and treaty bodies. The modalities of the universal periodic review mechanism were discussed and the mandates of all the Commission's Special Procedures were extended, reflecting their importance as the frontline in identifying human rights abuses. An open-ended intergovernmental working group was established to formulate concrete recommendations on the issue of reviewing and, where necessary, improving and rationalising all mandates, mechanisms, functions and Special Procedures.
The outcomes of the meeting were met with mixed response. The procedural steps taken were seen as positive, in particular the establishment of working groups, with NGO and other stakeholder participation, to set up a process for periodic review of the human rights situations within all UN member states and a review of the Special Procedures. The working groups are to complete their mandates within a year. The Council's decision to extend the mandate of the working group to prepare a draft text on the creation of a complaints mechanism in the form of an Optional Protocol to the International Covenant on Economic, Social and Cultural rights was applauded as being key in enhancing protection of all economic, social and cultural rights.
It was further welcomed that the Council adopted by consensus the draft International Convention for the Protection of All Persons from Enforced Disappearance and the United Nations Declaration on the Rights of Indigenous Peoples. This is a significant step forward in combating the practice of forced disappearance and filling a gap in human rights standards in relation to the protection of indigenous peoples.
The Council voted to make a review of alleged human rights abuses of Israel a permanent feature of every Council session with no expiry of the mandate of the Special Rapporteur on the Israeli- Palestinian conflict. A special session on the situation was then called in July amidst calls from the international community to assemble and deploy a team of experts to Israel and the Occupied Territories to carry out an independent and thorough investigation into the deteriorating situation. These steps have been criticised by NGOs, among others, as politicised actions which revive the selective practices of the discredited Commission. While the handling of this situation has provided an opportunity for the Council to demonstrate a departure from the inaction which prevailed during the reign of the Commission there is widespread concern, voiced by Human Rights Watch and Amnesty International, that while the Israeli abuses should be looked at it is equally important to address the humanitarian law violations of Hezbollah and Palestinian armed forces in the conflict.
Speaking at the end of June of this year Peggy Hicks, global advocacy director at Human Rights Watch stated; 'The Council must move quickly from discussion to action on the full range of situations that demand its attention worldwide. She went on to say that 'The Council’s singling out of the Occupied Palestinian Territories for special attention is a cause for concern’ and called for the Council to ‘bring the same vigour to its consideration of other pressing situations’ The UNHCHR has raised a number of situations requiring attention and HRW has estimated the Council should take up at least two dozen, specifically recommending the situations in Darfur and Sri Lanka.
Second Session
The second session, in progress at the time of writing, from September 18 to October 6 is taking up the reports of the Special Procedures and work prepared by the Secretariat, UNHCHR, OHCHR and Secretary General that was requested by the Commission on a range of topics and specific countries. After the experts present their reports the Council is holding interactive dialogues with each of them with active participation of both observer states and NGOs. In the final week the Council will hear the progress report of the working group established to develop the modalities of the UPR mechanism and the outcomes of the working group on the mandates of its Special Procedures. It will finally discuss the two special sessions held so far on Palestine and Lebanon and their follow up.
Looking Ahead
There is strong potential for the Council to become more effective than its predecessor in fulfilling its clear mandate to address all human rights situations including gross and systematic violations and respond promptly to human rights emergencies. The new features of the Council such as the election and conditions of membership, the universal review mechanism, the regular meetings and ability to hold special sessions for matters of urgency-together with an emphasis on cooperation, dialogue and non-selectivity should empower the Council to become successful in exposing human rights violations, preventing abuses and protecting potential victims. The most immediate challenge for the Council is to avoid undermining its own credibility by taking a one-sided approach in addressing violations. Unfortunately, the Council has already been subject to criticism in its short existence for its handling of the situation in the Middle East and focus on Israeli abuses. Real change, therefore, will be reliant on the attitudes and actions of the members and their willingness to embrace a human rights orientated approach which will ensure that they can successfully fulfil their mandate.
Overview of Activities of the Office of the UN High Commissioner for Human Rights
Louise Arbour, UN High Commissioner for Human Rights (UNHCHR), addressed the second session of the Council on September 28 and outlined some of the thematic reports her office has produced, focusing on trends and issues rather than report details. The following reports and areas of importance were among those brought to the attention of the Council:
- Report on the implementation of the Durban declaration and plan of action against racial discrimination. Combating discrimination was highlighted as one of the Office's main objectives;
- The right to development. Ms Arbour highlighted "the failure to give teeth to the right to development" as a main source of disempowerment and described that her report includes the application of criteria from a right to development perspective for the periodic evaluation of global development partnerships as identified in Millennium Development Goal number eight;
- Economic, social and cultural rights. The challenge of strengthening the recognition and protection of economic, social and cultural rights was identified and Ms Arbour highlighted the Office's commitment to work in this previously neglected area;
- Report on defamation of religion which provides information on follow up actions in promoting religious tolerance;
- Report addressing the administration of justice through military tribunals which contains Draft Principles Governing the Administration of Justice through Military Tribunals, as well as the report of the Special Rapporteur of the sub-Commission on the same subject.
Ms Arbour highlighted this area as being the focus of intense debate particularly with regard to countering terrorism. The report gives a number of recommendations and reiterates that the actions of the states must fully comply with obligations under international law; Report on impunity, providing a survey of selected international commissions of inquiry and fact-finding missions in several countries which have been affected by conflict and/ or by massive human rights violations; The World Programme for Human Rights Education was referred to as being of strategic importance in the promotion of human rights and the empowerment of rights holders.
Ms Arbour finished her address by highlighting the work of a number of significant field presences, notably the following:
- Afghanistan: A lack of security is severely affecting the work of institutions and the justice system is suffering severe and systematic problems.
- Cambodia: The focus here is on the importance of strengthening the independence and integrity of the judiciary.
- Columbia: The monitoring mandate of the Office is to be extended and there are continuing challenges with regard to impunity and the need to prevent extra judicial killings and enforced disappearances.
- Guatemala: Discrimination against indigenous peoples, poverty and public insecurity where highlighted as long standing human rights issues.
- Occupied Palestinian Territories: Concern was raised about the deteriorating situation and a call made for a political solution.
- Uganda: Progress was noted and the need for adequate provisions for sustainable justice in the ongoing peace talks is seen as critical.