The attempt to convert the main United Nations human rights body into an instrument of unilateral service for several powers, unrepresentative of the current diversity of the international community of states, has, fortunately, been thwarted by the vote of the 170 member states of the General Assembly that approved the creation of the Human Rights Council.
It would be naïf to believe that the promoters of this aborted attempt have given up their goal of dismantling – or at least neutralizing – the human rights system. Regarding the Council, one cannot ignore that, in the name of “rationalizing” or other excuses, there is an effort to eliminate the themes and mechanisms that the great powers find unaccommodating.
For these reasons, it is important that the majority of member states of the Human Rights Council encourage and adopt, as a matter of priority, the following decisions:
1.the renewal of all mandates, mechanisms, functions and attributions inherited from the Commission on Human Rights, without exception;
2.the renewal of the mandate of the Sub-Commission for the Promotion and the Protection of Human Rights, including all its work currently under way;
3.the immediate adoption of provisional rules of procedure until the approval of a final set of rules and, as has already been suggested, the entrusting to a working group yet to be set up of a study for a final set of rules;
4.the immediate resumption of work on the basic themes that the Commission on Human Rights had under way.
The analyses relative to whether or not it is opportune to modify or eliminate existing mandates, mechanisms, functions and attributions in the Commission should be carried out on a case-by-case basis, and the decision should be adopted after an in-depth debate in which the NGOs should be allowed to participate.
II. The High Level Segment
The high level segment should be kept to the least amount of time possible out of the entire period allocated for the Council’s sessions. It is recommended that this segment take up, at most, only the first day of the Council’s sessions, following the opening ceremony. If necessary, this part could take place during the following days in another hall, parallel to the substantive meetings of the Council, as is the practice at the General Assembly and the International Labor Conference.
III. The Universal Periodic Review Mechanism
Paragraph 5(e) of the General Assembly1 resolution that created the Council refers to a universal periodic review mechanism, within the Council itself, in order to evaluate the implementation by United Nations member states of their obligations regarding human rights. It does not go into detail regarding how such an evaluation is to be carried out nor regarding what information will be used, which leaves the door open to abuses.
The mechanism for the universal periodic review, thus provided for, does not deal with four fundamental aspects of is functioning, which, it is to be hoped, the working group that the new Council will set up will take into account.
1. Paragraph 5(e) does not say on what basis the fulfillment of member states’ human rights obligations will be evaluated.2 It would have been logical for the resolution to stipulate that this review would be based on the obligations assumed under the United Nations charter and the Universal Declaration of Human Rights as well as in reference to the specific obligations contracted by each member state through the ratification of human rights treaties. If this had been done, a practice well established within the work of the Commission on Human Rights would have been continued.
2. There is no indication how “objective and reliable information” on the real situation in each country will be supplied to the Human Rights Council. For example, the High Commissioner for Human Rights has proposed, in one of her plans of action, that this information be supplied by it own Bureau, but in the form of an annual “world report” on human rights.3
It would be preferable that such information be contained in an annual report on the situation of human rights in the member states of the United Nations presented to the Human Rights Council by a permanent commission of independent experts.4 Such a commission of experts would work in close coordination with the special procedures (the system of special rapporteurs and experts) and the working groups of the Commission on Human Rights, re-established by the Council, as well as the oversight bodies (committees) of the international human rights treaties. It could thus receive information from NGOs. Each year, the report could include the study of the situation of some 40 or 50 countries. The commission of experts would also have the technical support of not only the Bureau of the High Commissioner for Human Rights but of other specialized5 and subsidiary6 agencies of the United Nations.
An annual report thus drafted would avoid selectiveness among member states, would guarantee a review of all countries on an equal footing and would constitute a real step forward in the coordination of the entire United Nations system in matters dealing with human rights.
3. The General Assembly resolution does not state clearly if the universal review is to be done in a public session (thus subject to the scrutiny of accredited observers, including human rights NGOs) or behind closed doors. If, in practice, the Human Rights Council decides to carry out the review behind closed doors, this procedure would amount to nothing more that a new version of the “1503 procedure” set up by the ECOSOC in 1970 in order to “dialogue” with those countries in violation of human rights, with no effective results.
4. The mechanism provided for insists that the review will be carried out with, as its final purpose, identification of the needs of each country, in relation to the development of its institutional capacity, instead of identifying the real level of fulfillment of its international human rights obligations. If this were to be the case, the world would lose an international supervision mechanism that the Commission on Human Rights had already created in practice, however imperfectly, by means of the system of geographic and thematic rapporteurs.
IV. The Merging of the International Human Rights Treaty Bodies is Not an Appropriate Idea
The High Commissioner for Human Rights has proposed the idea7 of merging the international treaty oversight bodies8 into a single body.
The unification of the committees into a single body would significantly reduce the effectiveness of the oversight of the implementation of the seven fundamental human rights covenants and conventions.
In fact, currently, each committee must examine the periodic reports of the states parties, discuss these reports, formulate recommendations (and, in certain cases, assure the follow up to these recommendations), examine the scope of the convention or covenant in question and formulate general observations on its contents.
Obviously, it would be impossible for a single committee to accomplish such a variety of tasks, even if it were reinforced and it if functioned permanently, as the high commissioner proposes (52 weeks a year). The seven existing committees already include 115 members and all together put in 57 weeks of work a year.
It is already difficult for these committees to carry out their mandates, and there are considerable delays in every one of them. This is primarily due to the lack of staff and material resources, which prevents them from – among other things – having longer sessions and from meeting several times a year.
The idea of merging all the committees into one body is not realistic because of the interdependence of human rights in the United Nations system. Moreover, the members of each committee are expected to have a specialized background relative to the treaty in question. Eventually, each treaty has a specific character and particular conditions regarding its implementation.
Moreover, in order to unify the committees, it would be necessary to modify six of the international treaties, for the six committees are provided for in the respective treaties, with the exception of the Committee on Economic, Social and Cultural Rights.
In any case, before the world ever comes up with an ideal system, there is no doubt that the priority is to increase considerably the staff and material resources of the current committees.