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Documents Articles The New UN Human Rights Council: Will It Work? Jonathan Gallagher We are right in the middle of very eventful times. The new UN Human Rights Council is being delivered, and it has been a difficult birth. From conception, strong arguments have developed over its nature. The father (or is it godfather?) SG Kofi Annan had wanted a brand-new and very different Council to the outgoing Commission on Human Rights that had become plagued by politicization and loss of credibility. He is even on record as stating that the problems of the CHR cast a shadow over the legitimacy of the UN itself. So in his mind, the new HRC would be a much smaller body, with members elected on the basis of their proven human rights record, with far more transparency and accountability. The mother, the General Assembly-made up of the 192 constituent nations-had widely diverging views. Some wanted far more rigorous qualifications for membership. Others wanted none at all. In the end, the compromise is one that pleases none, perhaps. The number of members is reduced, but only from 53 to 47. The qualifications for membership are only that any candidate nation must receive an absolute majority of the vote in the General Assembly, and that when voting, participants must "bear in mind" the country's human rights record. The forty-seven are now chosen, and already doubts are being raised as to this newborn's life-expectancy. Membership includes several nations not known for their exemplary human rights record, including China, Cuba, Pakistan, Saudi Arabia, Russia, and Azerbaijan. Just how the new HRC fares will very much depend on the first meeting and the commitment given to openness and accountability. Every country elected has given certain pledges to their participation in the HRC (available at: www.un.org/ga/60/hrc/) Just a few days ago Ambassador Luis Alfonso De Alba of Mexico was chosen as the first chairperson of the HRC. Again we will have to wait and see how this midwife tends to the new arrival as deliberations begin in Geneva on June 19. Will It Work? I pose the question-"will it work?" Perhaps the first comment to make is that we should not expect too much. The new HRC is, after all, just another body of the UN, which itself is a "club of nations" that has not chosen to delegate much authority to the UN. Very few UN mechanisms are binding or legally enforceable. The ability to ensure compliance with any particular ruling is very limited. We must expect the same of the HRC, with the only real authority being that of moral encouragement. The "naming and shaming," much objected to by certain nations at the old Commission, even led to peculiar decisions, such as the recently imposed rule at the Sub-Commission on Human Rights that no resolutions from that country could be country-specific. It is surely hard to describe and rebuke human rights failures when one cannot even mention the country involved! Much also depends on the commitment of those countries who do have both a history and a current involvement in upholding and defending human rights. Here the role of the US is ambivalent. It states it will support the new HRC but voted against it due to issues of composition and accountability etc. The US also chose not to run as a candidate for the current HRC. Specific and Regular Country Reviews One of the most significant new procedures of the HRC will be the "universal periodic review." This is intended to give opportunity for every nation to be placed under scrutiny as to its observance of human rights. However the mechanism for this review is not established, and its credibility will very much depend on the level of objectivity involved. Simple peer review is not enough, for that only invites the same politicization from which the former Commission suffered. An independent expert (such as the current system of special rapporteurs) would be helpful in this regard. In fact the special rapporteurs were a major positive aspect of the previous Commission, and their mandates should be continued. As independent experts not beholden to either the UN system or national governments, they play an essential role in giving credibility to the implementation of human rights, and correcting violations. The HRC is charged with reviewing the previous Commissions "special procedures," and while there may be some opportunity to merge certain assignments, certainly these should not be lost in the transfer. Greater Responsiveness to Severe Violations One of the most urgent correctives is the need to respond quickly and effectively when severe human rights violations occur. The SG has spoken about the collective failure of countries and the UN at the time of the Rwanda genocide. That this should never be allowed to reoccur was the general consensus. Yet the ongoing Darfur genocide has hardly received the essential response it needs from the previous Commission, and other examples could be added. Because of this need for rapid reaction to major violations, country resolutions need to remain part of the HRC, and to have far more "enforceability." The problem, as previously mentioned, is that the UN has not received much in the way of delegated authority from the 192 member nations. Indeed, perhaps the most common word heard in speeches at the UN is "sovereignty." In other words, countries are generally quite happy to speak and act in response to human rights violations as long as they are not involved themselves. If they are, they will cite sovereignty, and that other nations should refrain from "interfering in the domestic affairs of our country." This ambivalence means that effective action from the new HRC may not be much better than the old Commission, and perhaps even worse, if countries still insist on invoking sovereignty. Even sanctions have had limited effect, and in some cases, have proved counter-productive. Better mechanisms for compliance surely need to be found. Improvements That every candidate for the HRC needs to receive an absolute majority (96 votes) of the whole General Assembly to be elected. This is a major change over the Commission which was elected by the 54 member Economic and Social Council, and even then only by a majority of those present and voting. Members are elected for three-year terms (though to begin with there will also be one- and two-year terms to allow better continuity). One of the most significant improvements apart from composition (which remains to be proved) is the increased frequency and duration of HRC meetings. The plan now is to have at least three meetings annually, totally 10 weeks in duration. Aside from the longer time to work on these vital issues, the greater frequency now means that current issues can now be dealt with far more expeditiously. The former Commission, meeting just once a year, could hardly deal in a timely way with urgent situations. Added to this is the provision to call emergency sessions at the request of just one-third of the member states. This means that the responsiveness of the HRC is much improved, if such provisions are utilized. Another new development is the right to suspend an offending HRC member state by a two-thirds majority vote by the General Assembly. While clearly this would need to be seen to be believed (!), at least the provision is there… Needs One of the greatest complaints at the Commission was the lack of resources to accomplish the assigned tasks. While limitless funding is of course an impossibility, to drastically curtail the reports of special rapporteurs in terms of length and time of presentation is surely counter-productive, for example. Follow-up is one area of major weakness that needs to be addressed. It is one thing to pass a resolution, and it is something very different to establish compliance and positive response. A specific office charged with maintaining oversight of such issues is long overdue. Credibility is the major need in the new HRC. Without establishing this at the outset, the HRC will be viewed as simple window-dressing, and will fail in its role as the most important human rights forum. This will only come by member states rising above policies based on self-interest to those that seek the greater good exemplified in the human rights documents. For this reason, each member state needs to ensure that its commitments to human rights are truly robust, and that such fundamental rights are truly fundamental in their domestic experience. Without such visible accountability, there can be no true respect for and acceptance of the new HRC. NGO Involvement For many of the above reasons the serious, meaningful and involved participation of NGOs is more important now than ever. Yet despite the promise that such participation will be along the lines of the Commission, there is certainly a drive expressed to me by a number of diplomats to limit NGO involvement, mainly because today there are just so many who wish to speak etc. The alternative is to continue to decrease the amount of time each NGO has to address the body, which at one point in a previous Commission meeting was down to two-and-a-half minutes! A recent (May 18) roundtable meeting involving NGOs and governmental representatives aired these issues; however this is very different from having definite decisions from those in charge of the new HRC. The six areas discussed were: (a)NGO participation in the first session of the Council. Other more pragmatic issues are still unresolved-for example the grounds passes for both New York and Geneva are issued under ECOSOC authority. But now that the new body also has Council status directly under the GA, how will those attending the HRC be treated, and how will accreditation operate? Similarly, while we are informed that the first meeting will commence on June 19, and run for two weeks, we hear nothing of another two sessions planned for later in the year. This, and the lack of an agenda, makes planning and even making travel arrangements very difficult for non-Geneva-based NGOs. Much is riding on this new human rights forum for the world. Despite the fears and concerns, it is incumbent on us to do all we can to make this new venture a success. As NGOs we can together make a difference, and I challenge you to greater and more effective involvement in this new HRC. May the child thrive and prosper! [For more information on the new HRC there is a section of Questions
and Answers at: |
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