Will it turn norms into reality?

After 60 years, on 27 March 2006, the UN Commission on Human Rights sat for the last time. Speaking on behalf of a war-weary world in 1948, Eleanor Roosevelt had hoped that the Commission would set “before men’s eyes the ideals which they must strive to reach”. It is now defunct. Not because it did not achieve this goal, but because it failed to turn the ideals into reality. And so, on 15 March 2006 the UN General Assembly (GA) voted to create a new Human Rights Council to replace the “discredited” Commission.

The Council is, on the whole, welcome ‑ heralded by UN Secretary General, Kofi Annan, as a “new beginning” for human rights. It introduces some progressive institutional reforms, the principle ones being: it will sit for at least ten weeks per year (an extra four weeks); it is elevated to a subsidiary body of the General Assembly, putting human rights alongside security and development; it introduces ‘universal periodic review’ of all States; and, it attempts to create some criteria for membership based on States’ contribution and commitments to the protection of human rights. The implementing GA resolution also prescribes guiding principles for the Council’s work: “universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation”. 

But as UN High Commissioner for Human Rights Louise Arbour points out, the Council requires “a change of culture as much as institutional transformation”. This article highlights some of the issues the Council will face in the weeks ahead. 

Elections and voting 

The first step is to elect member States. The Council will consist of 47 member States (compared to 53 for the Commission), to be elected by secret ballot by a majority (96 votes) of the General Assembly. Membership is to be based on “equitable geographical distribution”, giving seats as follows among the regional groups: Africa (13), Asia (13), Latin America and the Caribbean (8), Western European and others (7), and Eastern European (6). 

Members are required to uphold the “highest standards in the promotion and protection of human rights”. At the time of writing, 17 countries have officially declared their candidacy to be members of the Council: two from Asia - Bangladesh, Pakistan; one from Africa – Algeria; five from Eastern Europe – Ukraine, Czech Republic, Georgia, Hungary, Latvia; five from Latin America and Caribbean – Argentina, Brazil, Mexico, Peru and Nicaragua; nine from the Western Group – Britain, Canada, Finland, France, Germany, Greece, Portugal, the Netherlands and Switzerland. The United States has announced that it will not be a candidate this time round. 

Right now, NGOs and governments should be preparing to both promote and challenge the candidature of States to ensure the strongest, most credible, body from day one.  

We have to wait and see how voting will be exercised within the Council itself, but member States must learn from history. The Commission failed to consistently address some of the worst human rights violations due to regional block voting. It never adopted a resolution on China or Guantanamo Bay, not because these issues did not merit it, but because China and the United States could always horse-trade sufficient votes. There was a resolution on Chechnya for three successive years, but it disappeared in 2002, never to be seen again; not because the situation in Chechnya improved, but because Russia got the single vote needed to defeat the resolution. 

The first challenge for the Council will be to give itself the membership and procedures to protect as far as possible against politically motivated decision-making.  

The second test will be how member States exercise their votes. The African and Asian votes have a clear majority. Will African States stand up to the regimes in Khartoum and Harare, and the Asian States to Beijing and New Delhi? And will the Western Group refrain from selectivity in its criticisms? In other words, will self-interest and geopolitics give way to human rights? 

First session 

The Human Rights Council’s first session will be in Geneva on 19 June 2006 and the general understanding is that it will last two weeks; probably involving a high-level segment and work on developing procedure. Establishing effective and workable procedures is crucial, but the Council must not forget that its credibility also rests on getting down to substantive work as soon as possible – there is much unfinished and urgent work left pending by the Commission. Technically, the Council must sit for ten weeks this year. One hopes the Council will quickly check its diary and publicly announce when the other eight weeks will be scheduled, so that NGOs and governments can organise their work accordingly. 

Existing special procedures 

The Council inherits all the Commission’s existing special procedures, expert advice and complaint procedure (the 1503 procedure). It will, however, undertake a review of these procedures within the first year, to improve and rationalize, where necessary.  

NGOs cling to the word “improve”, whilst some member States focus on “rationalize”. The purpose of the review process is, however, to “maintain” the Commission’s procedures and to “strengthen” the UN human rights machinery. States, in consultation with NGOs and special rapporteurs/representatives, must therefore undertake an objective and practical examination of each procedure and mandate. Is there still an underlying human rights need? If so, is the existing procedure or mandate adequate, or can it be improved upon? 

Universal periodic review 

The Council will undertake a “universal periodic review” of each State’s fulfillment of its human rights obligations, by way of a “cooperative mechanism” based on an “interactive dialogue”. This presents both opportunities and challenges.  

It provides an opportunity to review the records of all States, not just a handful of the worst that fall through the geopolitical net.  Phrases such as “interactive dialogue”, “cooperative mechanism” and “capacity-building needs” suggest a meaningful attempt to identify problems and causes, together with practical recommendations and technical assistance where appropriate. But there are many questions to be answered. 

The resolution provides for “equal treatment” of all States. With limited time and resources, should the Council really dedicate equal attention to, say, Monaco, as it does to Darfur?  

Council members are to be reviewed during their membership. If the election process is carried out in good faith, how will the Council avoid giving the most immediate attention to those States with the best records, rather than timely scrutiny of those with the worst?  

The most political part of the Commission was the country-specific resolutions and the 1503 complaint procedure. In expanding scrutiny to all member States, will this eliminate double standards and politicisation, as intended, or just fuel it?  

The African and Asian Groups have already indicated that they see ‘cooperation’ as a substitute for ‘naming and shaming’. How will the Council promote genuine good faith dialogue, but prevent this dialogue being used as a shield against criticism and action by States guilty of systematic human rights violations? A closely related question is: what mechanisms and measures will the Council adopt in order to “respond promptly to human rights emergencies”, as the GA resolution requires? 

How will the Council find time to review all 191 member States of the UN?  If one day were allocated for each State (similar to the treaty bodies), it would take 38 weeks. If the Council sits for ten weeks each year, as planned, it would take a minimum of four years to cover all member States. A solution may be found in the related question of how the periodic review will add value to, and not duplicate, the existing reporting procedures of the treaty bodies. 

A balance must be found between making the periodic review fair, timely and effective, whilst not consuming all the Council’s resources. The Council has one year from its first session to establish these modalities. 

NGO participation 

The GA resolution provides for the participation of and consultation of observers, which includes NGOs.  This will be based on the arrangements and practices of the Commission. The exact arrangements will not, however, be clear until the Council has adopted its procedures in June 2006.  

However, some questions already raised by NGOs include: What role will NGOs play in the universal periodic review? How will NGO networking and interaction be affected by three separate sessions, rather than one main session? What role should NGOs have in the Council’s review of the Commission’s special procedures? How can communication be improved between the secretariat and NGOs? 

Take nothing for granted 

This is a crucial year for the international community’s commitment to human rights and, as Louise Arbour has said, “nothing should be taken for granted”. 

NGOs must actively engage in the election process and the development of the Council’s procedures. They must advocate for the best of the Commission to be retained and strengthened – its standard-setting, special procedures, complaints procedure, and the “robust presence of civil society”. They must constructively engage with the Council in creating procedures that will best protect against politicisation, most effectively scrutinise State practice, and improve on the implementation of international human rights instruments.  

For the Council, in the years ahead its challenge is to demonstrate the political will necessary to turn what are now legal norms into reality for all.

 Human Rights Features