Come September, the Council will be called upon to prove its mettle

The inaugural session of the UN Human Rights Council had more to contend with than the simple weight of expectation in overcoming the failings of its predecessor. From the moment of the adoption of General Assembly resolution 60/251 establishing the Council on 15 March 2006, it was formalised that the Council would immediately assume the task of transition from Commission on Human Rights (CHR) to Council, in parallel with providing an operational system that could address immediate human rights issues. Given that the final session of the CHR in March 2006 failed to tackle any substantive issues, a lot of work needed to be done to redress the protection gap at the international level. Although inevitably there was argument over prioritisation of pressing issues, and it could still be argued that the Council succumbed to regional demands in the six issues that it agreed to discuss, the Council nonetheless managed to complete its work productively.  

However, this should not necessarily be read to suggest that a rosy future is assured. The preliminary achievement of consensus on establishing working groups does not equate to consensus on the subject matter before these working groups. Certain sentiments expressed within the Council in fact gave rise to reasonable fears that the same belligerent tactics employed at the CHR will be recycled in the future. 

Arrangements and organisation 

The pre-session agreement of a preliminary schedule eased the organization of the first session. The appointment of Mexican Ambassador Luis Alfonso de Alba as President-designate was also positive, bringing experience and professionalism to a difficult post. The co-ordination of informal consultations, and the President’s holding of weekly informal briefings with NGOs before and throughout the first session, were also welcome initiatives.   

The first four days were given over to the traditional High Level Segment, where senior representatives from more than 80 states presented statements of their expectations for the Council. The traditional diplomatic divide was immediately apparent, despite a collective appraisal of ‘turning the page’ to ‘open a new chapter’.  Many States concentrated on the GA resolution’s express reference to dialogue and co-operation (PP 7, PP 10, OP 4) as a means of insisting that confrontation should be avoided, whilst others maintained that country specific criticism remained important, and must be provided for in future sessions. In similarly predictable fashion, many of those states and voting blocs who decried the old “selectivity” and “politicization” of the Commission were the first to provide statements and recommendations that could only be described as political and selective. Plus ça change.  

Standard Setting 

In the second week, the Council got down to business, with general discussions during the first three days and voting on resolutions/decisions on the final two days. Amongst the substantive elements to carry over from the Commission were the completed instruments of the Working Groups on Enforced Disappearances and Indigenous Peoples. The adoption by consensus of the International Convention for the Protection of All Persons from Enforced Disappearances constituted the outstanding achievement of the first session. The Convention defines widespread or systematic enforced disappearances as a crime against humanity, provides for families’ right to truth, and takes account of preventive measures, including those relating to detention, prison registries and a ban on secret prisons.  The Working Group on the drafting of the Convention has existed since 1992, and the push by GRULAC countries and a particularly concerted NGO effort brought closure, to quote GRULAC spokesperson Clodoaldo Hugueney, to “a lengthy process, characterised by a painful past where systematic human rights violations reigned in order to intimidate societies and silence opponents.” 

The adoption of the Declaration on Indigenous Peoples was not so smooth, with the call for a vote and a result of 30 in favour, two (Canada, Russian Federation) against, and 12 abstentions. Direct opposition came from Canada and Russia. Despite the insistence of the chairperson of the Working Group, Mr. Luis-Enrique Chávez, that “the final compromise text offered the best outcome they could achieve to the Working Group process”, Canada, also representing Australia and New Zealand and very much brow beaten by their objections to the Declaration, claimed that it was simply ‘asking for more time’. Observers Australia and New Zealand, plus the US, added that the right to self-determination under Article 3 may be misinterpreted to confer the right to secession to indigenous groups and that Article 20, referring to consultation with indigenous groups, would confer "a power of veto over the laws of a democratic legislature" (for a simple rebuttal of these claims, see “Declaration on Indigenous Rights Long Overdue”, Human Rights Features, 26-30 June 2006, at http://www.hrdc.net/sahrdc/hrcouncil06/index.htm). In any case, despite certain genuine limitations of the text, after over 20 years of debate the Council grasped the historic opportunity to advance standard setting in the field of indigenous peoples’ rights.  

The Council also renewed the mandates of the Working Groups on the right to development, the Durban Declaration, and the consideration of the elaboration of an optional protocol to the International Convention on Economic, Social and Cultural Rights (ICESCR). The latter was particularly significant, as Portugal’s draft resolution called for the Chairperson to begin drafting an optional protocol which would allow for a complaints mechanism under the ICESCR, reflecting the wish of the majority at the last session of the Working Group.  

The Process of Transition  

In accordance with operational paragraph 6 of GA resolution 60/261, it was agreed that the Council would first “assume, review and, where necessary, improve and rationalize all mandates, mechanisms, functions and responsibilities of the Commission on Human Rights”. It was also required, in accordance with operational paragraph 5 of 60/251, that the Council would establish the modalities for the new Universal Periodic Review.  

The requirements of OP 5 were addressed firstly through a decision to extend all mandates for one year, and secondly by a decision of the President to establish an intersessional Working Group to implement OP 6. The Working Group is to be chaired by the President, will meet for 20 days, and will report to the Council at each session on progress made, beginning at the September 2006 session. The Sub Commission was also requested to report to the Working Group following its final session in August 2006.  

The establishment of an intersessional Working Group was expected and is agreeable to all parties. However, it should be noted that this development did not preclude certain states from already insisting that the review of Special Procedures should be undertaken on a case-by-case basis. The procedural success of this first development should therefore not be overstated. 

The same applies to the establishment of a Working Group to establish the modalities of the Universal Periodic Review. Also to be chaired by the President, the Working Group will meet for ten working days to establish modalities and will report to the Council in September 2006. All substantive and procedural elements concerning the new periodic review remain open for discussion, including: the length and detail of reporting against time and financial considerations; whether in fact the UPR would be best served by a distinct independent body; whether to appoint additional rapporteurs for country visits and/or include national institutions and NGOs in the process; the sources of existing information to be utilised and how to avoid unnecessary duplication of other reporting processes; whether, indeed, there is any value in self-reporting; and how the Council might reach its conclusions and oversee the implementation of recommendations.  

Conclusion 

The first session of the Human Rights Council was successful in implementing all procedural responsibilities that were placed before it by the General Assembly. The successful completion of this work in a short time frame, and particularly the able steering of the President and the secretariat, should be commended. The additional adoption of two long standing instruments, and a compromised agreement to finally begin drafting an optional protocol to the ICESCR, provided an added sense of occasion to the session.   

However, the establishment of a framework for transition, and the adoption of a program of work for the next year combining substantive work with the process of review, will not alone guarantee that the Council improves upon the Commission. Whilst States proffered indications of their hopes for the future, the June session did not, nor could not, provide any agreed elements for the future role and status of Special Procedures, nor for the modalities of the universal periodic review. The September session will finally concentrate on the long overdue presentations of Special Procedures, and will therefore allow for standard operations to partially resume. At the time of writing, however, all is up for grabs.

 Human Rights Features