Item 4 : Implementation of the General Assembly Resolution 60/251 of 15 March 2006 entitled “Human Rights Council”. Joint written statement AAj, CETIM and LIDLIP.A/HRC/1/NGO/27
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.
1) Paragraph 5(e) of General Assembly Resolution 60/251 instructs the Human Rights Council to “undertake a periodic universal review, based on objective and reliable information, of the fulfillment of each State of its human rights obligations in a manner which ensures universality of coverage and equal treatment with respect to all States; the review shall be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity-building needs; such a mechanism shall complement and not duplicate the work of treaty bodies; the Council shall develop the modalities and necessary time allocation for the universal periodic review mechanism within one year after the holding of its first session”.
2) Even if this seems obvious, one should emphasize that the review of the fulfillment of member states’ human rights obligations should include all rights, notably civil, political, economic, social and cultural rights.
3) See document A/59/2005/Add.3, 26 May 2005, paragraph 86.
4) The Committee of Experts on the Application of Conventions and Recommendations of the International Labor Office has set a precious example in this area. It is composed of 20 independent experts from different geographic regions, judicial systems and cultures.
5) For example ILO, UNESCO, FAO, WHO etc.
6) UNDP, UNICEF, etc.
7) Plan of Action of the High Commissioner for Human Rights (A/59/2005/ Add.3). See also Concept paper on the High Commissioner's proposal for a unified standing treaty body (HRI/MC/2006/2, 22 March 2006).
8) To wit the seven committees: for the International Covenant on Civil and Political Right;, the International Covenant on Economic, Social and Cultural Rights; the Convention of All Forms of Discrimination Against Women;, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of the Child; the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. The seven committees meet twice a year to examine the reports of the states parties. With the exception of the Committee on the Rights of the Child and the Committee on Economic, Social and Cultural Rights, they are authorized to receive complaints from victims or from victims’ representatives. For ten years, the U.N. instances have been debating the possibility of establishing a complaints procedure for the Committee on Economic, Social and Cultural Rights. Moreover, a sixth convention, against the recruiting, use, financing and training of mercenaries, has no committee.