N° 33 / August 2007
Meghna Abraham
Building the New Human Rights Council
Outcome and analysis
of the institution-building year
Globalization GENEVA
ISSN 1614-0079
ISBN 978-3-89892-750-5
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This Occasional Paper is published by the Geneva offi ce of the Friedrich-Ebert-Stiftung.
August 2007
Table of Contents:
1. Preface 3
2. Executive summary 4
3. Background 6
4. The institution-building process 9
4.1. The working groups 9
4.2. The end game 10
5. Agenda and rules of procedure 12
5.1. Agenda 12
5.2. Working methods and rules of procedure 13 5.3. Participation of NGOs and NHRIs 14 6. The system of expert advice:
expertise without initiative 16 6.1. Structure and membership 16 6.2. Sessions, powers and functions 17 6.3. The working groups, social forum
and participation of NGOs 18 7. The ‘new’ complaint procedure 20
7.1. Scope of the complaint procedure
and admissibility 20
7.2. Mechanism for review of complaints
and outcomes 21
7.3. A lost opportunity 23
8. Special procedures:
preserving the system 24
8.1. Appointment process 25
8.2. Review of mandates 27
8.3. Code of conduct and the manual
of special procedures 29
8.4. Putting it in context: disaster averted? 32 9. Universal periodic review:
the promise of the reform 34
9.1. The fi nal model and vision of the UPR 35 9.2. Scope of the review and information
to be considered 37
9.3. Order and process of the review 39 9.4. Outcome and follow-up 40 9.5. An evolving mechanism 41
10. Conclusion 42
10.1. The best ‘political’ outcome? 42 10.2. Historical comparison with the
Commission 43
10.3. A vision of the new Council 45 10.4. A fi nal note on the details 46
Preface
1.
The transition from the Commission on Human Rights (the Commission) to the Human Rights Council (the Council) dominated the work of the UN human rights system all over the last year. Since the Commission had been dissolved, states and NGOs alike where striving to give shape to the newly created body which, by the resolution that created it, existed only in very vague terms and left room for new institutional structures, as well as for the defi nition of mechanisms of work.
Very soon it became clear that not all Member States would work towards a Council which would have stronger teeth than the former Commission. The classical dispute between a strong and effective international human rights system with far reaching competencies on the one side and the preservation of national sovereignty on the other was apparent during all of the negotiations and consultations leading up to the fi nal adoption of an “institution-building” package. This adoption took place at the very last minute of the timeframe given by the General Assembly resolution which created the Council and had given it one year to complete this process.
Whether the package that was reached in the end was a good deal or a bad deal continues to be disputed among Member States and NGOs. As Meghna Abraham, a Geneva based lawyer and consultant on international human rights law, presents in this paper, an evaluation of the package also depends on the “yardstick” used for its measurement.
When assessing whether the package is a success or a failure, should the political background be taken into account, or should the package just be judged alone by its technical content?
The Geneva Offi ce of the Friedrich-Ebert-Stiftung has accompanied the process of transition from Commission to Council. An earlier publication which was issued in 2006 in collaboration with the International Service for Human Rights (ISHR) had explored the issues raised in the transitory phase, trying to give activists and experts a useful tool to understand the process and get involved in it in a constructive manner. As this
“ Handbook on issues of transition from the Commission on Human Rights to the Human Rights Council” was well received, we have asked its main author to take a look at the recent developments in the institution-building process. In this “Occasional Paper”, she describes the outcome of this process and analyzes and evaluates in a critical way the work of the Council. She examines which questions had been answered in what ways during the last year and gives insight into the issues that had not been addressed and that came up during this last period of intense work at the Council.
The present description and analysis, which covers the state of debate until mid August 2007 in and on the Council, is again intended to give information to delegations and NGOs in order to support them in continuing their work of shaping a Human Rights Council that will be the central institution promoting and protecting human rights worldwide.
Felix Kirchmeier Geneva Offi ce
Friedrich-Ebert-Stiftung
Executive summary
2.
The Commission on Human Rights (the Commission) had served as the main political body which addressed human rights issues in the United Nations (UN) system. Despite its many achievements, the Commission came under severe criticism in its last few years of functioning because of its membership and selec- tive monitoring of countries. As a result, the Human Rights Council (the Council) was created by the General Assembly in March 2006 to replace the Commission.
The Council assumed all the former mechanisms, mandates, functions and responsibilities of the Commission. The General Assembly however tasked it with reviewing these mechanisms to improve and rationalise them, where necessary.
The Council was also required to undertake a periodic review of the fulfi lment of human rights obligations of all UN member States, under a new Universal Periodic Review (UPR) mechanism. However, the General Assembly left it up to the Council to develop the actual mechanism. All these tasks had to be completed within the Council’s fi rst year of functioning.
The Council decided to carry out the discussions on the institution-building process through three working groups. After a few months of discussions, it became obvious that, rather than striving to improve on what had been created under the Commission, the fi ght had become centred on how to preserve the protections offered by those mechanisms. The fi nal institution-building package that was adopted on 18 June 2007 was based on a compromise text suggested by the President of the Council, Ambassador De Alba. The President’s text did not provide much in the way of a reform or a strengthening of the system but managed to keep out the most negative proposals.
The balance sheet of the institution-building package is as follows:
• The agenda has been improved to give it more fl exibility. The degree to which it also offers predictability to NGOs and allows for more focused discussions and prioritisation will depend on the programme of work, which is yet to be developed.
• The arrangements for NGO participation have been maintained and those for NHRI participation have been consolidated.
• The 1503 procedure has largely been maintained as the new complaint procedure but with some limited improvements. The most notable innovation is that the complainant will now be provided information on the progression of the complaint and its fi nal outcome.
• The ‘Human Rights Council Advisory Committee’, a new body with reduced membership and meeting time has been set up to replace the Sub-Commission.
The scope of functioning of the system of expert advice has been greatly constrained and the role of the experts has been reduced to purely an ‘ advisory’
one. The experts no longer have the ability to undertake independent initiatives and this is a signifi cant loss. On the positive side, the development of criteria for nominations and a slightly better nomination system offers the prospect that the quality of expertise will be improved.
• The system of special procedures has been preserved but no steps were taken by the Council to make this mechanism more effective. The Council postponed the review of individual mandates and this will now be undertaken based on the programme of work that will be developed for the second year. It is not clear what the outcomes of this staggered review process will be. The special procedures also now have a code of conduct, which was the best of the worst options, but has the potential to be intrusive to their work and to be misused by States. There is a new system of appointment, which could add greater transparency and bring in better candidates but also has the scope to give more power to the regional groups in the selection process.
• The institution of country mandates has been preserved but there is an atmos- phere of strong hostility to country mandates, which may make it diffi cult, though not impossible, for new country mandates to be created. Two country mandates, on Cuba and Belarus, were terminated and it is likely that at least a few of the others will not survive the review process.
• The UPR will be conducted by the entire Council, sitting as a working group, through a three-hour long interactive dialogue with the concerned State. The review will be based on a national report or national information, and docu- ments prepared by OHCHR compiling information from treaty bodies, special procedures, and other UN documents and from other stakeholders including NGOs. Observer States can participate and ask questions. There is no provision for formal involvement of experts in the process but States can chose to include them in their own delegations. NGOs can attend the review but can not par- ticipate in the discussions. The possible outcomes of the procedure are quite weak but their adoption is not subject to the consent of the concerned State.
The UPR is not, at least on paper, the strongest of mechanisms that could have been set up. Neither is it the weakest. It may evolve into an effective mechanism but it remains too early to make fi rm predictions without seeing its operation in practice.
Overall, it is diffi cult to evaluate the outcomes of the institution-building process because the conclusions vary based on the yardstick used. Viewed in the context of the realities of the political process and battles over the past year, the outcome is a success because it managed to preserve most of the institutions that came under attack. Problems however begin to emerge if we look further back to the expectations behind the creation of the Council and the promises of ‘reform’ of the system. The key determinant of whether the Human Rights Council represents an improvement over the Commission is the UPR. If the UPR functions well this may outweigh the losses in other areas but if it does not, there can be little doubt that the institutional design of the Council does not represent a marked improve- ment over that of its predecessor.
The process is still not over and many of the operational details of the institution- building package still need to be fi nalised. The institution-building package is also very broad in the way it is drafted and opportunities exist for States and NGOs to reshape it to make the mechanisms more effective in practice. The Council still has the tools to carry out its functions as it retains the capacity, by and large, to do all that the Commission could. How it uses these tools towards ensuring the protection of human rights hinges, as always, on the political will of its members.
What the Council does with these tools in the next few months and years will be the true yardstick of the success or failure of the reform process.
1 I would like to thank Michael Anthony, Inmaculada Barcia, Claire Callejon, Mathew Coakley, Lucinda O’Hanlon, Susan Mathews, Gareth Sweeney, and Thomas Sebastian for their comments and suggestions on earlier versions of this paper or on some sections. These comments were made in their personal capacity.
I would also like to thank Felix Kirchmeier and Türkan Karakurt, from FES, for their comments and Felix for editing the paper. All errors and omissions remain mine.
2 General Assembly resolution 60/251. The body was established and met for the fi rst time in June 2006.
See also H. Upton, ‘The Human Rights Council: First Impressions and Future Challenges’, [2007] 7 Human Rights Law Review 29.
3 For more information on the Commission, see P. Alston, ‘The Commission on Human Rights’, in P. Alston, The United Nations and Human Rights, (Clarendon Press, 1995), pp. 126–209.
4 Amnesty International, Meeting the Challenge: Transforming the Commission on Human Rights into a Human Rights Council, (Amnesty International, April 2005), pp. 6–7. See also see M. Lempinen, The United Nations Commission on Human Rights and the Different Treatment of Governments, (Institute for Human Rights, Åbo Akademi University, 2005).
5 For a detailed discussion see P. Alston, “Reconceiving the UN Human Rights Regime: Challenges Confronting the New Human Rights Council”, (2006) 7 Melbourne Journal of International Law 185, see in particular pp. 188–198.
6 A More Secure World: Our Shared Responsibility, A/59/565, (2 December 2004), p. 74.
7 A/59/2005, (21 March 2005), p. 45.
Background
13.
The Human Rights Council (the Council) was created by the General Assembly in March 20062 to replace the former Commission on Human Rights (the Commis- sion). The Commission had served as the main political body which addressed human rights issues in United Nations (UN) system for the last sixty years.3
The Commission was responsible for the creation of almost all the major human rights instruments that are in force today. It had the mandate of monitoring human rights violations and did so largely through the adoption of resolutions on countries.
It also created the ‘special procedures’; mechanisms that monitor and publicly report on the situation of human rights in specifi c countries or particular human rights issues. The Commission served as an important forum for non-govern mental organisations (NGOs) to publicly assert concerns about particular countries and lobby States to take action on these situations.
The Commission was severely criticised in the last few years of its functioning and calls were made for its reform. The major criticisms revolved around the member- ship of the Commission and its monitoring of countries. Most NGOs censured the Commission for failing to take action on a number of countries where there was clear evidence of gross human rights violations.4 Many States, however, condemned the Commission for punishing the few countries it had taken action on. In the view of these States, the Commission’s actions were motivated by political considera- tions and it applied double standards by targeting developing countries but shield- ing the most powerful. The other attack, led notably by the United States of America, was aimed at the membership of the Commission. This came to a head in 2003 when the Ambassador or Libya was ‘elected’ as the Chairperson of the Commission and Sudan was re-elected to the Commission in 2004, despite its actions in Darfur.5
The challenges to the credibility of the Commission were affi rmed in a report of the UN Secretary-General’s High-level Panel on Threats, Challenges and Change,6 and by the Secretary-General himself in his report, In Larger Freedom: develop- ment, security and human rights for all.7 The Secretary-General recommended The Commission was
responsible for the creation of almost all the major human rights instruments that are in force today.
NGOs censured the Commission for failing to take action on a number of countries where there was clear evidence of gross human rights violations.Many States, however, condemned the Commission for punishing the few countries it had taken action on.
the replacement of the Commission by a smaller, standing body, a Human Rights Council, to be elected by the General Assembly by a two-thirds majority vote.8 He also suggested that the Human Rights Council should be mandated to undertake a periodic ‘peer review’ of the fulfi lment by all States of all their human rights obligations.9 The High-level Panel and the Secretary-General’s report however failed to carry out a comprehensive assessment of the factors that had led to the
‘declining credibility’ of the Commission. They also did not analyse what features of the Commission should be retained and those that needed to be changed. In the chapters that follow, we will see how this lacuna came to haunt the whole reform process.
A decision was taken at the World Summit in September 2005, to create a new Human Rights Council. The resolution establishing the Human Rights Council was adopted by the General Assembly on 15 March 2006 by a majority vote, after fi ve months of protracted negotiations.10 The Human Rights Council that was fi nally created by the General Assembly did not resemble either the High-level Panel’s recommendation of a Council that was made up of all member States of the UN, or the smaller standing body that the Secretary-General had proposed.11 It had a marginally smaller membership than the Commission, with 47 instead of the Commission’s 53 members. The reduction of the number of members was ac- companied by a change in the distribution of seats amongst the fi ve regional groups to provide for equitable geographical representation. This re-distribution and particularly the reduction of seats allocated to Western Europe and Others Group (WEOG) and Group of Latin and Caribbean States (GRULAC) (who now have 15 rather than 21 seats) meant that these countries “have lost the power to win a vote …unless their proposals attract the support for at least three African and Asian States”.12
The General Assembly was unable to set up strict membership criteria and the resolution merely asks States to “take into account the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments”.13 The resolution does however provide for each member of the Council to be elected directly and individually by the majority of members of the General Assembly. It also enables rotation of membership by specifying that States shall not be eligible for immediate re-election after two consecutive terms.14 The General Assembly, by a two-thirds majority, may suspend the rights of member- ship of a member of the Council that commits gross and systematic violations of human rights.15 These provisions go some way towards addressing the concerns
The High-level Panel and the Secretary-General’s report failed to carry out a comprehensive assessment of the factors that had led to the ‘declining credibility’
of the Commission.
A decision was taken at the World Summit in September 2005, to create a new Human Rights Council.
The General Assembly was unable to set up strict membership criteria.
8 Ibid.
9 See www.ohchr.org/english/bodies/chr/docs/61chr/sgchr.doc.
10 See M. Abraham, A New Chapter for Human Rights: A Handbook on Issues of Transition from the Com- mission on Human Rights to the Human Rights Council, (International Service for Human Rights and the Friedrich Ebert Stiftung, 2006), pp. 11–12. The handbook is available in an electronic form at http://www.
fes-geneva.org/publications/OtherPublications/Handbook.pdf and at www.ishr.ch.
11 See N. Ghanea, ‘From UN Commission on Human Rights to UN Human Rights Council: One Step Forwards or Two Steps Sideways’, (2006) 55 International and Comparative Law Quarterly 695, pp. 699 – 704.
12 Y. Terlingen, ‘The Human Rights Council: A New Era in UN Human Rights Work’, (2006) 21 Ethics and International Affairs 167, p. 171. For an analysis of the voting patterns of the Commission, see ISHR, The All-In-One Guide to Voting or Voting Results, prepared for each session of the Commission, available at www.ishr.ch (look under Archived Reports).
13 Para 7, General Assembly resolution 60/251.
14 Para 8, General Assembly resolution 60/251.
15 But see M. Bossuyt, ‘The Human Rights Council: A Doubtful Reform?’, VVN seminar on “The UN Human Rights Council: Challenges and Opportunities”,(June 2006), available at http://www.vvn.be/docu/HRC- Bossuyt.pdf. He notes, “it is not very likely to expect that the General Assembly will frequently be able to take such initiatives even in case of gross and systematic human rights violations”.
that were voiced around the selection and conduct of members of the former Commission but did not go as far as some would have preferred.16
In contrast to the Commission, which met once a year, the Council is empowered to meet for a minimum of three sessions a year, which should be totally not less than ten weeks in duration. Though the proposals for the Council to be a standing body were not taken up, a provision was made for it to convene special sessions, when needed, at the request of a member and with the support of one third of the membership. It now reports directly to the General Assembly, instead of fi rst re- porting to ECOSOC and this has speeded up the process.17 The Council has similar functions to the Commission and is responsible for addressing violations of human rights, including gross and systematic violations. It is also expected to contribute to the prevention of human rights violations and respond promptly to human rights emergencies.
The Council assumed all the former mechanisms, mandates, functions and re- sponsibilities of the Commission. The General Assembly obligated it to maintain a system of special procedures, expert advice and a complaint procedure but empowered the Council to review and “where necessary, improve and rationalize”
these mechanisms.18 The use of the words ‘system of’ special procedures and expert advice also gave the Council the fl exibility to modify the current special procedures and to devise a new system of expert advice, if it wished to replace the Sub-Commission. Similarly, it could develop a new complaint procedure to replace the former 1503 procedure. The Council was required to complete this review within one year after holding its fi rst session. The most signifi cant innova- tion relating to the new Council was the creation of a new Universal Periodic Review (UPR) mechanism, under which the Council is required to undertake a periodic review of the fulfi lment of human rights obligations of all UN member States.19 The resolution only set out broad guidelines for the UPR but left it to the Council to develop the modalities and necessary time allocation within one year.
The General Assembly therefore set out the key institution-building tasks that the Council was required to complete within its fi rst year of functioning. In addition to these tasks the Council also had to further develop its rules of procedure and methods of work and attend to substantive human rights issues.
This paper describes and analyses the outcome of the institution-building process.
In the next chapter, it briefl y discusses the process itself and the events leading up to the adoption of the institution-building package. Chapters 4 to 8 focus on the decisions taken in relation to each of the mechanisms of the Council and to its agenda and rules of procedures. The paper describes the framework that has been adopted and the issues and options the Council chose to focus on in relation to each of these mechanisms and procedures. It also tries to identify the practical changes to these mechanisms and procedures and to assess, from an NGO per- spective, the main gains and losses that may result from these outcomes. The paper ends with a conclusion which evaluates these outcomes.
The General Assembly obligated it to maintain a system of special procedures, expert advice and a complaint procedure but empowered the Council to review and
“where necessary, improve and rationalize”
these mechanisms.
The most signifi cant innovation relating to the new Council was the creation of a new Univer- sal Periodic Review (UPR)
mechanism, under which the Council is required to undertake a periodic review of the fulfi lment of human rights obligations of all UN member States.
16 See Ambassador John Bolton, ‘Explanation of vote on the Human Rights Council Draft Resolution’, avail- able at: www.state.gov/p/io/rls/rm/63143.htm.
17 See L. Rahmani-Ocora, ‘Giving the Emperor Real Clothes: The UN Human Rights Council’, (2006) 12 Global Governance 15, see p. 18.
18 Para 6, General Assembly resolution 60/251.
19 Para 5 (e), Ibid.
4.1. The working groups
The Council decided to carry out the discussions on the institution-building process through three open-ended20 inter-sessional working groups. There were the working group on review of mechanisms and mandates,21 the working group to develop the modalities of the UPR22 and a working group to formulate recom- mendations for the Council’s future agenda, programme of work, methods of work and rules of procedure23. The working group on review of mechanisms and mandates was tasked with reviewing the special procedures, the Sub-Commission, and the 1503 procedure.
The scope, nature and progress of the discussions varied greatly based on the importance that States placed on the issue and the skill of the facilitator in direct- ing the discussions. At the end of February, the picture was not looking too optimistic from the view point of those who wanted the process to be used to strengthen existing mechanisms. Though positive and/or innovative proposals had been put forward by some States and NGOs,24 the battle had increasingly become one to preserve the protections offered by the existing mechanisms.
The impact of the change in the regional distribution of membership of the Council was also clearly demonstrated at the resumed second session. Algeria (on behalf of the African Group) tabled a resolution asking the Working Group to review the Manual of special procedures and to draft a code of conduct. The resolution,25 which was put to vote was supported by all members of the Council belonging to the African Group, almost all Asian States, and surprisingly also by Brazil and Ecuador.
As the framework for the institution-building process had been adopted by con- sensus at the beginning of the year, the tabling of the resolution was a deliberate attempt to re-open the issues that had been agreed upon. It also was a successful demonstration of the shift in the balance of power and votes within the Council.
By the end of April 2007, when the working groups had completed their fi nal session, many of the key concerns still had to be resolved. It is at this stage that Ambassador De Alba took control of the process himself as the Chairperson of the three working groups. After holding a number of consultations, Ambassador De Alba put forward a President’s text in early June to assist negotiations.26 The
Though positive and/or innovative proposals had been put forward by some States and NGOs, the battle had increasingly become one to preserve the protections offered by the existing mechanisms.
The impact of the change in the regional distribution of membership of the Council was also clearly demonstrated at the resumed second session.
The institution-building process
4.
20 Members of the Council, other States and observers, NGOs and national human rights institutions (NHRIs) with the requisite accreditation could participate in the working groups’ sessions.
21 Council decision 1/104. The working group was authorised to meet for 20 days.
22 Council decision 1/103. The working group was authorised to meet for 10 days.
23 Council resolution 3/4. The working group was authorised to meet for 10 days.
24 Only a small number of NGOs were able to participate in the sessions of the working groups.
25 Council resolution 2/1.
26 The President released three versions of the President’s text from the 4th to 18th June 2007. These are available at the OHCHR extranet at http://portal.ohchr.org/. This paper refers to and quotes extensively from the fi nal version of the text adopted on 18 June 2007 which is included in A/HRC/5/L.2. This docu- ment is also available on the extranet.
President’s text built on the facilitators work and the text or ideas that they had identifi ed as areas of consensus or in some cases their proposals to reach consen- sus. He also included his own proposals to solve pending issues, based on the consultations he had held.
4.2. The end game
The President’s text only set out the broad framework for each of the mechanisms so that this could be adopted by the deadline set by the General Assembly. Many of the important operational details such as the guidelines for submission of in- formation and schedule for the UPR, criteria for the selection of special procedure mandate holders and members of the Human Rights Council Advisory Committee, schedule for review of the special procedures, arrangements for the Sub-Commis- sion’s working groups and the social forum were left to be resolved by the Council at the sixth session in September 2007. It was only on the 17th June 2007, a day before the package was due to be adopted, that the President fi nally dealt with the issue of country mandates, and proposed an agenda (till this stage he had merely included the text from the facilitator’s last non-paper). He suggested that all the existing country mandates, barring the two on Cuba and Belarus, would be extended and reviewed along with the thematic special procedures. China’s proposal for a two thirds majority for all country-specifi c resolutions was not refl ected in the text. Though the consensus provisions that were included did not provide much in the way of a reform or a strengthening of the system, the appeal of the text lay in the fact that the most negative proposals had been kept out.
The President, it seemed, may have been using the two main weapons he had.
The fi rst was the desire for consensus, which was asserted by many States in part as a strategy to offset the changed membership of the Council. The implicit threat underlying this strategy was that an institution-building package that was adopt- ed without consensus would lack legitimacy (especially if the European Union chose not to support the package). The second was the fear that if a package was not adopted before the deadline set by the General Assembly, all the members of the Council would have egg on their faces. The Council had been under unprec- edented media scrutiny since its creation, perhaps in part because of John Bolton’s strong critique of it at the eve of its creation at the General Assembly. There was no doubt that if the Council failed to agree, its failure would be a highly publicised one. Ambassador De Alba, looked as though he was targeting this fear, when he made it clear that any attempt to amend any part of his document would lead to its withdrawal.
The President took a risky gamble in dealing with the issue of country mandates a day before the fi nal text was due to be adopted. China had set up a strong stance against country mandates and insisted on a two thirds majority rule for the crea- tion of any new mandate. There was a strong chance that the Chinese would not react too well to what they would perceive as a loss of face. The gamble almost did not pay off. The Council met on 18 June 2007 only to break up into smaller consultations as there was no agreement on the fi nal text. The two sticking points were the Chinese, who were insisting on the inclusion of their proposal of two thirds majority requirement and the Canadians, who objected to the inclusion of The President’s text
only set out the broad framework for each of the mechanisms. The appeal of the text lay in the fact that the most negative proposals had been kept out.
There was no doubt that if the Council failed
to agree, its failure would be a highly publicised one.
a separate agenda item on Palestine and the occupied Arab territories. Nego- tiations continued the whole day with NGOs and other observers watching the clock. The Council’s membership was due to change at midnight on the 19th of June 2007. The situation degenerated to the verge of farcical when a group of Mariachi’s,27 who had been booked for what was hoped would be the celebration of the adoption of the institution-building package, came out to play upbeat music.
In marked contrast, reports were fi ltering in that the President had threatened to withdraw his text and the entire process was falling apart.
Some say just before the stroke of midnight, others say a minute past,28 the President announced that agreement had been reached on the institution-building package, which would be formally adopted the next morning. However, next morning the drama continued when Canada raised a point of order to the effect that it had not agreed to the institution-building package. It pointed out that Ambassador De Alba had promised that the Council could take action on the proposed text, including the code of conduct on the 19th of June. Canada explained that it could not support the package because of the inclusion of the agenda item on Palestine and the occupied Arab territories and the termination of the mandates on Cuba and Belarus. The newly appointed President of the Council, Ambassador Costea did not give Canada the opportunity to vote on the institution building package itself. He instead asked the Council to vote on his ruling that the package had been agreed by consensus. Some regard this as a clever procedural manoeuvre and others describe as an “aggressive Orwellian move”.29 The Council voted 46 to 1 in favour of the new President’s interpretation of events. If the attempt was aimed at ensuring that future references to the adoption and the record would refer to its being adopted by consensus, it seems to have been successful. How- ever, as consensus is not a legal requirement and as Canada has clearly recorded that it had not joined the consensus, it would perhaps be more accurate to say that the package was adopted by consensus minus one.
The rabbit was pulled out of the hat at the last minute and the package was perhaps the best political outcome that could be expected considering the membership of the Council and the positions that had been adopted by various States throughout the year. What the package represents in terms of a human rights outcome or in value added or lost in terms of mechanisms for the protection of human rights, however, remains a different measure and story. It is this assessment that I hope to focus on in the chapters that follow.
The newly appointed Pres- ident of the Council, Am- bassador Costea did not give Canada the opportu- nity to vote on the institu- tion building package it- self. He instead asked the Council to vote on his rul- ing that the package had been agreed by consensus.
27 A troupe of Mexican musicians.
28 UN Watch, ‘Geneva’s Midnight Secret: Reform’s Missed Deadline’, available at http://www.unwatch.org/
site/c.bdKKISNqEmG/b.1317481/k.96E7/View_From_Geneva/apps/nl/newsletter2.asp#e3999055.
29 UN Watch, ‘Consensus Declared – Whether Canada Consented Or Not’, available at http://www.unwatch.
org/site/apps/nl/content2.asp?c=bdKKISNqEmG&b=1317481&ct=3978271.
Agenda and rules of procedure
5.
5.1. Agenda
The Commission had a fi xed agenda with twenty one agenda items, which was adopted in 199830 after detailed political negotiations. This agenda did not change from year to year and therefore participants, particularly NGOs, benefi ted from the predictability of knowing approximately when a particular agenda item would come up during the annual session and which thematic item they could present their particular concerns under. The main disadvantage of this approach was the lack of prioritisation of discussions, duplication of concerns and issues across agenda items, and that its rigid structure did not provide for genuine dialogue or focused action.31
In the discussions over the last year in the working group, a number of States expressed their preference for a structured agenda, with pre-identifi ed thematic issues, on the lines of the Commission’s agenda.32 Others suggested having a generic agenda, which would not identify specifi c thematic issues in advance but would instead allow States to suggest for each year, the issues they wished to see addressed.33 These States thought that predictability could be ensured through the annual programme of work, which would identify which session the different issues would be discussed at.
The institution-building package that was fi nally adopted by the Council provides for a compromise between these two proposals. It is a structured agenda, with ten agenda items, and includes the thematic and one country-specifi c agenda items that proponents of a structured agenda had argued most strongly for.34 It also includes agenda items focused on different human rights mechanisms and bodies that are created by the Council or which it interacts with.35 The new agenda, as it currently stands, represents an improvement on the Commission’s agenda by providing for a mixture of predictable standing agenda items and broader and more fl exible agenda items. The sub-agenda item on the ‘interrela- tion of human rights and human rights thematic issues’ and the fact that civil and political and economic, social and cultural rights are dealt with under the same agenda item offers the prospect of a more comprehensive discussion on cross-
30 Commission on Human Rights resolution 1998/84.
31 For a further discussion of the Commission’s agenda and main choices and questions in the institution-build- ing process in this regard, see M. Abraham, A New Chapter For Human Rights, n. 10 above, pp. 20–23.
32 Cuba, on behalf of the Non-Aligned Movement (NAM), Algeria (on behalf of the African Group), Pakistan (on behalf of the OIC), Bangladesh, China, Honduras, India, Indonesia, Iran, Malaysia, Morocco, Saudi Arabia (on behalf of the Asian Group), South Africa, Sri Lanka, Tunisia, Venezuela, and Zimbabwe.
33 Germany (on behalf of the EU), Canada, Guatemala, Portugal, the Netherlands, Switzerland, the UK, and the USA among others.
34 Promotion and protection of all human rights, civil, political, economic, social and cultural rights, includ- ing the right to development; human rights situation in Palestine and other occupied Arab territories;
follow-up and implementation of the Vienna Declaration and Programme of Action; and racism, racial discrimination, xenophobia and related forms of intolerance, follow-up and implementation of the Durban Declaration and Programme of Action.
35 These include the annual report of and updates by the High Commissioner for Human Rights, other reports from her offi ce and the Secretary-General, reports of the Advisory Committee and complaint procedure, and an agenda item on the UPR.
It is a structured agenda, with ten agenda items, and includes the thematic and one country-specifi c agenda items that proponents of a structured agenda had argued most strongly for.
cutting issues and violations. The agenda items on human rights situation that require the Council’s attention and technical assistance and capacity building offer opportunities for States and NGOs to raise concerns about the situation in par- ticular countries. The inclusion of the former agenda item is a very positive outcome in the face of the strong opposition of some States, during the working group, to this item and discussion and action on country situations outside the UPR and complaint procedure.
A few NGOs have publicly criticised the singling out of the human rights situation in Palestine and other occupied Arab territories as an agenda item.36 This agenda item was also the reason why Canada was unwilling to join the consensus on the institution-building package. There can be no doubt that the situation in Palestine and in the other occupied Arab territories should be addressed by the Council. It is regrettable however that it was not included within a general item on occupa- tion, as suggested by some countries, as this would have enabled the Council to widen its focus. Another signifi cant omission is the failure to include an agenda item on ‘follow up of decisions of the Human Rights Council’, a positive innovation that had been introduced last year by the Council and proposed during the Working Group’s sessions. The Council will of course have the fl exibility to add other agenda items for each session so could choose to continue this practice.
The extent to which the new agenda will represent an improvement on the Com- mission’s agenda will largely depend on how the programme of work for the year and each session will be developed. For nationally based NGOs, it will be impor- tant that the Council clearly indicate how issues will be divided across sessions and the agenda for each session in time for them to plan their participation. At present, there is no annual programme of work for 2007–2008 and Ambassador Costea, the President of the Council, has announced that he would discuss this and the calendar for the year with delegations so that this can be adopted at the beginning of the sixth session.37
5.2. Working methods and rules of procedure
The Council was presented with an opportunity to reform the aspects of the work- ing methods and institutional culture of the former Commission. Over the course of last year, however, it appeared that very few States wanted to truly refl ect on this issue or to suggest innovative procedures and mechanisms for the Council.
States chose to concentrate on a very narrow range of issues in their discussions on working methods and rules of procedure. These primarily focused on the need for meetings to convey information about prospective resolutions, some other institutional arrangements, and guidelines and rules for special sessions of the Council.38 The Council also adopted its rules of procedure.
The extent to which the new agenda will represent an improvement on the Commission’s agenda will largely depend on how the programme of work for the year and each session will be developed.
States chose to concentrate on a very narrow range of issues in their discussions on working methods and rules of procedure.
36 See Amnesty International, Conclusion of the United Nations Human Rights Council’s institution-building:
Has the spirit of General Assembly resolution 60/251 been honoured? (Amnesty International, 20 June 2007), available at http://web.amnesty.org/library/Index/ENGIOR410152007. See also Human Rights Watch, ‘UN: Rights Council Ends First Year with Much to Do’, (19 June 2007), http://hrw.org/english/
docs/2007/06/18/global16208.htm and UN Watch, ‘Castro and Lukashenko to Celebrate Human Rights Council Reform Package’, (17 June 2007), available at http://www.unwatch.org/site/c.bdKKISNqEmG/
b.1317481/k.96E7/View_From_Geneva/apps/nl/newsletter2.asp.
37 To be held from 10–28 September 2007.
38 The most signifi cant of which is that a special session should be held between two to fi ve days after the request for a special session is received. Sponsors of draft resolutions are also encouraged to present them as possible and to hold open-ended consultations on such drafts.
The most controversial proposal on rules of procedure was China’s proposal that any resolution on the situation of human rights within countries should be tabled only with the support of one third of the members of the Council and adopted only if it has the support of two-thirds of the membership. If this proposal had been accepted, the Council would have been effectively crippled from taking action on situations in countries. The fi nal text merely provides a guideline, under the methods of work section, that proposers of a country resolution have the responsi- bility to secure the broadest possible supports for their initiatives (preferably 15 members) before action is taken.
The main innovation in relation to the working methods and rules of procedure is the introduction of the possibility of the Council using other work formats and outcomes other than resolutions and decisions. The section on working culture calls on States to notify proposals and submit draft resolutions early and to exer- cise restraint to avoid proliferation of resolutions.
5.3. Participation of NGOs and NHRIs
Rule 7 of the rules of procedure repeats the content of paragraph 11 of General Assembly resolution 60/251 in relation to the participation of observers, specialised agencies, NGOs and NHRIs.39 In relation to the participation of NHRIs, it clarifi es that their participation shall be based on arrangements and practices agreed upon by the Commission including resolution 2005/74, which permitted NHRIs to make statements under all agenda items. The institution-building package therefore preserves the rights of participation of NGOs and NHRIs.
Over the last year, Ambassador De Alba was able to develop the practice of NGOs participating in the Council’s interactive dialogues with special procedures and ensure their full participation in the institution-building process and the special sessions.40 He was careful not to lay down strict guidelines on NGO participation, as this may have opened the issue up for debate in the Council. He instead relied on NGOs themselves to manage the time available and suggested broad principles rather than strict quotas to manage the number of times an NGO spoke and the choice of speakers. This approach was successful for the most part because most NGOs were willing to cooperate and because of the efforts of the NGO Liaison Offi cer. It was however possible for NGOs to do this in the context of the institu- tion-building process as relatively few NGOs were present for the sessions. A few States suggested in the discussions at the working group that NGO participation in the interactive dialogues should be seen as an exception and that there was no guarantee that this would be continued in future sessions.41 The working group
39 “The participation of and consultation with observers … including national human rights institutions, as well as non-governmental organizations, shall be based on arrangements, including Economic and Social Council resolution 1996/31 of 25 July 1996 and practices observed by the Commission on Human Rights, while ensuring the most effective contribution of these entities”.
40 See also P. Scannella and P. Splinter, ‘The United Nations Human Rights Council: A Promise to be Fulfi lled’, [2007] 7 Human Rights Law Review 41, see pp..65–67.
41 Algeria (on behalf of the African Group).
The most controversial proposal was that any resolution should be only adopted if it has the support of two-thirds of the membership.
The Council would have been effectively crippled from taking action.
Ambassador De Alba was able to develop the practice of NGOs participating in the Council’s interactive dialogues with special procedures and ensure their full participation in the institution-building process and the special sessions.
42 Available at http://portal.ohchr.org (fi ll up the form at http://www.ohchr.org/english/bodies/hrcouncil/form.
htm to obtain the user name and password).
43 The webcasts, including archived video footage are available at http://www.un.org/webcast/unhrc/index.
asp.
did not however enter into an in-depth discussion on NGO participation or make any further decisions in this regard. Two other innovations that were useful for the work of NGOs were the introduction of the extranet,42 under which documents and statements are posted online, and webcasting of the sessions of the Coun- cil.43
As the Council moves towards more substantive discussions on human rights issues, many more NGOs are likely to participate in its sessions. The issue of speaking rights is likely to come up then and may require skilful resolution.
The Sub-Commission on the Promotion and Protection of Human Rights (the Sub- Commission) was the main subsidiary body of the Commission on Human Rights (the Commission). The Sub-Commission was made up of 26 independent human rights experts, who were elected by the Commission. The Sub-Commission acted as a ‘think-tank’ and was responsible for carrying out studies and preparing papers on human rights issues. It carried out the foundational work for a large number of human rights standards that were adopted by the Commission.44 Much of this work originated as initiatives of the Sub-Commission itself and was not based on a request by the Commission.45 It also highlighted new and emerging areas of human rights concerns, gaps in the protection of human rights, and provided guidance of the interpretation and implementation of human rights standards.46 The Sub-Commission initiated the practice of allowing NGOs without ECOSOC accreditation to participate in many of its working groups’ sessions. It therefore had a far wider interaction with NGOs than other institutions in the UN system.
In the last few years, the Commission increasingly began to curtail the powers of the Sub-Commission and marginalise the importance of its work. The Sub-Com- mission’s greatest weakness lay in its membership as implemented by the Com- mission. Many members of the Sub-Commission occupied other roles that gener- ated confl icts of interest and hampered their ability to carry out their work. Some also lacked the necessary expertise to do so.
6.1. Structure and membership
The institution-building package that was adopted by the Council provides for the creation of a new body for the provision of expert advice to the Council, the ‘Hu- man Rights Council Advisory Committee’. There was a prolonged debate over the year in the working group on review of mechanisms and mandates about wheth- er the Council should have a formally structured body that meets annually,47 an ad hoc roster of experts that it could draw up on as necessary,48 or a hybrid be- tween the two models.49 The Council fi nally chose to create a body with a formal
44 The International Convention for the Protection of All Persons from Enforced Disappearance and the UN Declaration on Human Rights Defenders are two examples of such standard-setting work.
45 F. Hampson, ‘An Overview of the Reform of the UN Human Rights Machinery’, [2007] 7 Human Rights Law Review 7, see p. 21.
46 See M. Abraham, A New Chapter for Human Rights, n. 10 above, pp. 52 – 60 for a brief description of the Sub-Commission and a discussion of the main issues for the review process. See also A. Eide, ‘The Sub-Commission on Prevention of Discrimination and Protection of Minorities’, in P. Alston, The United Nations and Human Rights, (Clarendon Press, 1995), p. 211 and www.ohchr.org/english/bodies/subcom/
index.htm
47 Finland and Germany (on behalf of the EU), Australia, Canada, Japan, Switzerland, the UK, and the USA.
See also ISHR’s Council Monitor reports on the discussions at the working group, available at www.ishr.ch.
48 Algeria (on behalf of the African Group), Argentina, Pakistan (on behalf of the OIC), Bangladesh, Colombia, Cuba, Egypt, Iran, Thailand.
49 India proposed creating a pool of experts that the Council could use as needed, which would also meet for two-weeks annually.
The Sub-Commission acted as a ‘think-tank’ and was responsible for carrying out studies and preparing papers on human rights issues. It carried out the foundational work for a large number of human rights standards that were adopted by the Commission.
The system of expert advice: expertise without initiative
6.
The institution-building package provides for the creation of a new body for the provision of expert advice to the Council, the
‘ Human Rights Council Advisory Committee’.
structure that would meet annually. The Human Rights Council Advisory Commit- tee (the Advisory Committee) has a reduced membership (18 experts) in com- parison to the former Sub-Commission. The geographic distribution of membership has also changed with a reduction in the number of members across all the regions but particularly from Western Europe and Africa.
Election continues to be the method of selection of experts but the institution- building package has introduced a potentially better nomination procedure and limits on terms. Unfortunately, proposals that all stakeholders should be able to nominate candidates were rejected and only member States can propose or en- dorse candidates. They are also limited to nominating or endorsing candidates only from their own region. A window of opportunity for NGO and NHRI input is provided by requiring States to consult with their NHRIs and civil society organi- sations in this regard and to include the names of those supporting the candidates.
As with the special procedures, the package provides for the development of technical and objective requirements for the submission of candidatures, which include recognised competences and experience in the fi eld of human rights, high moral standing and independence and impartiality. These will be approved by the Council at its sixth session.50
The provisions in relation to disqualifi cation on the ground of confl ict of interest and the principle of non-accumulation of human rights functions also apply to candidates for the Advisory Committee. Members will serve a three year term and be eligible for re-election once. These are positive innovations that could address the defi ciencies that plagued the membership of the Sub-Commission. Much will depend on the technical and objective requirements that are developed and the degree to which they are implemented and adhered to in the election process.
6.2. Sessions, powers and functions
The powers and functions of the Advisory Committee have been noticeably cir- cumscribed in comparison to those of the Sub-Commission. The package makes it clear that the function of the Advisory Committee is to provide expertise to the Council in the manner and form requested by it, only upon its request, and in compliance with its resolutions and guidance. The Council may request the Advi- sory Committee to undertake these tasks collectively, through a smaller team or individually. This allows in part for the roster approach that many States were calling for. The Advisory Committee can make suggestions to the Council for im- proving its procedural effi ciency and for further investigation proposals but only within the scope of the work set out by the Council. These shall be subject to the Council’s consideration and approval.
As the expert body is virtually stripped of the power to initiate studies, this raises serious questions about how effective it will be in drawing the Council’s attention to key gaps in the system in respect of standard-setting or emerging areas. The special procedures could fi ll part of the gap and expand the role that they also
A window of opportunity for NGO and NHRI input is provided by requiring States to consult with their NHRIs and civil society organisations and to include the names of those supporting the candidates.
The powers and functions of the Advisory Committee have been noticeably circumscribed in
comparison to those of the Sub-Commission.
50 Ambassador Alicia Gallegos of Nicaragua has been appointed to act as the facilitator on the identifi cation of technical and objective requirements for submission of candidatures for the Advisory Committee.
51 International Commission of Jurists, A Future Expert Body for the Human Rights Council, (International Commission of Jurists, September 2006), available at http://www.icj.org/IMG/Expert_body_fi nal.pdf. See also Sub-Commission decision 2006/112.
play in this regard. However, a lacuna will remain in terms of a collective body of experts identifying key developments and areas of future work. The loss of initiative in the system of expert advice is a signifi cant one and reveals a deep reluctance on the part of the Council to empower its own experts. The fact that this trend had been increasingly manifested in the last few years of the Commis- sion and starkly so in the year of institution-building does not make it any less disappointing.
The Advisory Committee is supposed to be implementation-oriented and the scope of its advice is restricted to thematic issues pertaining to the mandate of the Coun- cil. It is barred from establishing subsidiary bodies without the authorisation of the Council. It is prohibited from adopting resolutions and decisions, thereby do- ing away with another of the Sub-Commission’s tools that nationally based actors were able to use. While the focus on implementation is a useful one, the package confi rms the shift from advice and action on country situations that was forced through in 2000. The Advisory Committee also has no role within the UPR mech- anism because of the strong objection from some States on any relationship be- tween these mechanisms. The package also does not address the relationship between the Advisory Committee and the special procedures, the treaty bodies or the wider UN system. The package also fails to identify how the transition between the two bodies will be managed and what will be done with the numerous pend- ing studies and other work of the Sub-Commission.
The Advisory Committee is authorised to meet for a shorter period of time than the Sub-Commission. It can convene up to two sessions for a maximum of 10 working days per but can schedule additional sessions with the prior approval of the Council. Members are also encouraged to communicate inter-sessionally. As the collegiate and collective nature of the Sub-Commission’s discussions were highlighted as an asset by the Sub-Commission itself and by some NGOs,51 it is positive that this feature has been retained. To maximise the time that is available and to focus discussions, the Advisory Committee will need to organise its time well and develop a clear agenda for its sessions well in advance to enable NGOs to plan their participation. It may also wish to, with the help of the Secretariat, use video and teleconferencing facilities and other electronic modes of communi- cation to maximise contact and discussion in between sessions.
6.3. The working groups, social forum and participation of NGOs
The issue of the most “appropriate arrangements to continue the work of the Working Groups on Indigenous Populations, Contemporary Forms of Slavery, Minorities, and the Social Forum” has been postponed for a decision by the Coun- cil at its sixth session. The President’s text fi nally used the formulation ‘to continue the work’ of these bodies because of pressure from a number of States. There is however no clarity on the form that these arrangements will take. A few States suggested in the working group that some of this work could be incorporated into The loss of initiative in
the system of expert advice is a signifi cant one and reveals a deep re- luctance on the part of the
Council to empower its own experts.
As the collegiate and collective nature of the Sub-Commission’s discussions were highlighted as an asset by the Sub-Commission itself and by some NGOs, it is positive that this feature has been retained.
the special procedures system, perhaps by the creation of new special procedures.52 As the working group on indigenous populations and minorities are the most ac- cessible forums for minority groups and indigenous peoples within the UN human rights system, it is essential that any future arrangements provide for this ac- cess.
The Advisory Committee is urged to establish interaction with States, NHRIs, NGOs and other civil society entities in accordance with the modalities of the Council.
NGOs, NHRIs and other observers are entitled to participate in the work for the Advisory Committee based on arrangements including ECOSOC resolution 1996/31 and practices observed by the Commission on Human Rights and the Council, while ensuring the most effective contribution of these entities.
52 The UK suggested that the working group on contemporary forms of slavery could be converted to a special procedure focused on the same issue. R. Brett, Neither Mountain nor Molehill UN Human Rights Council: One Year on, (Quaker United Nations Offi ce, August 2007), p. 13.
NGOs, NHRIs and other observers are entitled to participate in the work for the Advisory Committee.
The Commission on Human Rights’ (the Commission) main complaint procedure was the 1503 procedure,53 under which it could receive communications (com- plaints) from victims or others acting on behalf of the victims regarding situations which “reveal a consistent pattern of gross and reliably attested violations of hu- man rights and fundamental freedoms”54 in any country in the world. The Com- mission would not address violations of an individual’s human rights under this procedure. The procedure was intended, instead, to bring situations of massive human rights violations to its attention.55 The 1503 procedure was confi dential and the Commission considered ‘situations’ in countries that come up under the procedure in a closed meeting. Complainants were informed if their cases had been taken up for processing under the 1503 procedure but were not given any further information on the proceedings themselves or the outcomes.56
The Council discussed the new complaint procedure in the working group on review of mechanisms and mandates. It became evident very early in the process that States were unwilling to even explore the possibility of creating a new com- plaint procedure and instead preferred to use the 1503 procedure as the basis for discussions. In doing so, the Council lost a signifi cant opportunity to re-develop the complaint procedures taking into account the different types of international and regional complaint procedures that have been set up in the last forty years.
7.1. Scope of the complaint procedure and admissibility
The institution-building package reiterates that the new complaint procedure will have the same scope as the 1503 procedure and will “address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms”. Unlike the 1503 procedure which focused on such violations in any country in the world, the new complaint procedure states that it will do so in “any part of the world and under any circumstances”. This wording may have been used to accommodate views that the complaint procedure should also focus on situations of occupation and extra-territorial action on the part of a State. As one of the main strengths of the 1503 procedure was that it was one of the few forums available to submit complaints regarding governments that have not ratifi ed many human rights treaties or agreed to treaty bodies receiving communications, it is important that this feature has been preserved.
53 Named after the resolution by which it was created: Economic and Social Council (ECOSOC) resolution 1503 (XLVIII) of 27 May 1970.
54 Para 1.
55 A.F. Bayefsky, How to Complain about Human Rights Treaty Violations: Choosing a Forum, available at:
www.bayefsky.com/complain/44_forum.php.
56 M. Abraham, A New Chapter for Human Rights, n. 10, p. 62. See pp. 62 – 71 for a brief description of the 1503 procedure and a discussion of the main issues for the review process. See also M.F. Ize-Charrin,
‘1503: A Serious Procedure’, in G. Alfredsson, J. Grimheden et. al. (eds.), International Human Rights Monitoring Mechanisms, (Martinus Nijhoff Publishers, 2001), p. 297.
The Commission would not address violations of an individual’s human rights under this procedure. The procedure was intended, instead, to bring situations of massive human rights violations to its attention.
