After Vienna: Not much of a journey

THE 1998 Report of the United Nations High Commissioner for Human Rights on follow up to the Vienna World Conference on Human Rights ended on a cautionary note. "Without prejudging the conclusions of the Review process," the High Commissioner stated, "one can note that the progress achieved in the implementation of the VDPA does not merit self-satisfaction on the part of the international community. Too many cases of serious human rights violations continue to occur every day. The argument that progress in human rights has always been measured in quantitatively and qualitatively small steps may encourage more intensive efforts. But this argument does not help the victims of human rights violations - all those who suffer now. The international community should constantly bear this in mind."

Five years later, it is clear that the 1993 Vienna World Conference on Human Rights has resulted in several positive developments. The Declaration on Human Rights Defenders, the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the two Optional Protocols to the Convention on the Rights of the Child (CRC), the Optional Protocol to the Convention Against Torture and the formation of the Ad Hoc Working Committee on the proposed Convention of the Rights of People with Disabilities augment the pre-VDPA body of international human rights instruments. The Office of the High Commission for Human Rights was established. The General Assembly and the Commission for Human Rights have consistently allotted time on their respective agendas to address VDPA follow up, and it seems from these documents that the language of the UN, at least, has attempted to "mainstream" human rights in the way envisioned by the Vienna Declaration. Further developments are outlined in the first annual report of the present High Commissioner for Human Rights, Sergio Vieira de Mello, to the Commission on Human Rights (E/CN.4/2003/14*).

However, it is equally clear that the High Commissioner's 1998 reference to "self-satisfaction" was a prescient warning that has often gone unheeded. Take the case of the ratification of human rights treaty bodies. One finds that there are undisputed areas of progress: although the goal of universal ratification of the Convention of the Rights of the Child has not been met, the treaty does have an impressive 191 state parties. CEDAW, the other treaty that was singled out for the goal of universal ratification, has fared less well but still has 170 state parties. However, some additional arithmetic is revealing. (see box: A Sign And A Half)

Another recommendation of the Vienna Declaration was "to consider the possibility of signing and ratifying, at the earliest possible time, the International Convention on the Rights of All Migrant Workers and Members of Their Families." The problem is that only migrant recipient countries have ratified the Convention. Even some States that sponsored the resolution on migrant workers have failed to ratify the Convention to ensure that it comes into force. 

In turn, the status of states' reservations to these treaties has actually worsened since the signing of the VDPA. This was noted five years ago in the 1998 report of the High Commissioner for Human Rights: "Unfortunately, since the adoption of the VDPA, the situation as regards reservations to human rights treaties has, if anything deteriorated. Many new ratifications were accompanied by substantive reservations and few reservations made previously were withdrawn… notwithstanding the VDPA's explicit statement of concern about the scope of reservations…."

Moreover, the reporting practices of state parties are abysmal. The 1997 Report of the Meeting of Persons Chairing the Human Rights Treaty Bodies notes: "[T]he treaty bodies as a whole were facing two major problems: (a) many States parties were failing to fulfil their obligations under the treaties to such an extent that some 1,000 State reports were overdue; and (b) even when reports had been submitted, they could frequently not be scheduled for examination until two or three years later, thus rendering much of the data obsolete." A 2000 Report of the Secretary General states: "[T]he present reporting system function[s] only because of the large-scale delinquency of States which either did not report at all, or reported long after the due date. If many were to report, significant existing backlogs would be exacerbated, and major reforms would be needed even more urgently."  Committee on Human Rights Resolution 2002/85 reiterates concern about the "persistent backlog of reports," "delays in the consideration of reports," the "large number of overdue reports," the "lack of adequate resources…including…their ability to work in the applicable working languages."  The only positive aspect of this situation is that a de facto state policy of non-reporting compliments another de facto policy of failing to provide human rights treaty bodies with the money they need to fulfill their mandates.

If one method of assessing the effectiveness of the VDPA is to gauge the commitment of individual governments to implementing human rights treaties, then the Declaration has just failed miserably. As the most recent report of the High Commissioner states, "We cannot shield gross violations of human rights…behind the veneer of sovereignty or the chicanery of diplomatic procedures."  The High Commissioner's plan for making international human rights norms more accessible at the local level is a welcome step towards rectifying this situation.  It must be noted, however, that some may be tempted to address this manifest lack of state commitment with more conferences and training programmes. This merely complicates a simple problem: states must be pressured by other states to engage in their reporting duties.

What of new human rights treaties? As noted above, the Declaration on Human Rights Defenders, the Optional Protocol to CEDAW, and the two Optional Protocols to CRC are among positive contributions in this area. The new Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment would create a much-needed addition to human rights mechanisms.

The UN has formed Ad Hoc Working Committee on the proposed United Nations Convention on the Rights of People With Disabilities, affirming that a Convention on the rights of persons with disabilities, long overdue, will be a welcome addition to international human rights instruments. The High Commissioner has stated that he will create the first global presentation of efforts for the protection of human rights at the national level. The OHCHR has also prepared a background paper on leading ideas regarding treaty body reform. 

Yet these attempts to improve the human rights treaty system have been accompanied by insidious attacks on other human rights norms and mechanisms. The Optional Protocols to the CRC provide protection that is weaker than that offered in the Convention itself. Most concerning was the Protocol on Children in Armed Conflict's retreat from a "straight 18" position for recruitment into armed forces. While certain States and the High Commissioner for Human Rights opposed the regression in standards, NGOs were largely left with the responsibility of lobbying against a retreat in protection.

Few resolutions of the United Nations Commission on Human Rights have had such a negative impact on the protection and promotion of human rights at international level as the Rationalization of the Work of the Commission on Human Rights. Although the 'Review of Mechanisms-Rationalization of the Work of the Commission' brought limited improvements, the overall impact was pernicious. The Sub-Commission on the Promotion and Protection of Human Rights was devastated.  Limited to a three-week session each year, the Sub-Commission was disallowed from adopting country-specific resolutions or thematic resolutions mentioning countries.  The major weapon of the only independent and expert human rights organ in the UN system was disarmed.

At the 58th Session of the Commission on Human Rights, a 30 percent reduction of its session time provided another opportunity to weaken the mechanisms. The Commission on Human Rights adopted a damaging resolution on review of "Enhancing effectiveness of the Commission on Human Rights" (resolution 2002/91). The Asian group's oral proposal on "biennialization and clustering of agenda items, reduction of the number and length of resolutions through inter-alia, biennialization of as many thematic resolutions as possible, and discontinuation of resolutions which are no longer warranted by existing circumstances, in addition to strict observance of speaking time limits" were fully reflected in the CHR resolution.

The World Conference Against Racism, an integral aspect of VDPA follow-up, has been referred to as a "damp squib." The DDPA is riddled with opt-out clauses such as "where appropriate", "as appropriate", and "where necessary". While it struck a fine balance on the issue of reparation and slavery and addressed the Roma issue, it snubbed millions of victims of racial discrimination by failing to refer to "caste", "sexual orientation", "apology", "World Conference on the Rights of Indigenous Peoples" and "abuses of national and multinational companies."

The CHR's resolution 2002/68 on racism, racial discrimination, xenophobia and related intolerance was disappointing on a number of levels. It says little about the composition of the intergovernmental working group-the key mechanism for implementation of the DDPA-and excludes NGOs from participation in the intergovernmental working group. There has been little progress in efforts to create an Optional Protocol to the ICESCR. The Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities was adopted in 1992, yet no progress has been made with regard to development of standards. NGOs, for their part, have done little to counter state politicking that erodes the language of human rights treaties and their implementation. The 58th session of the CHR, which took crucial decisions on the implementation of the DDPA, showed how the NGOs that often join the bandwagon of the World Conferences operate. Most of the groups that had maintained a constant, shrill presence in Durban were absent in Geneva. When the draft resolution was placed before the informal Open Ended Working Group, none of these NGOs were present. Although many NGOs provided desultory comments to the Bureau on the Rationalization of the Work of the Commission on Human Rights, most of them were unclear on the actual mandate of the Bureau. There was also little understanding of the possibility that the Like Minded Group of countries would use the Review of Mechanisms process to weaken the human rights mechanisms.

What, then, are we to make of post-Vienna developments in human rights? On the one hand, the means and methods for creating a global culture of human rights have become more sophisticated. On the other hand, states' methods of eluding an manipulating these mechanisms have progressed apace.

The best defence? NGOs and IGOs must create concrete action plans that follow up on and hold states accountable for every human rights commitment made. As the High Commissioner stated : "Without respect for international minimum standards for the protection of human rights, humanity will return to the Dark Ages. This cannot be allowed to happen."