As the United Nations Commission on Human Rights (CHR) prepares for its 61^st session in March-April 2005, the implications of the recommendations for its reform given by the “High-level Panel on Threats, Challenges and Change” headed by former Thailand Prime Minister Anand Panyarachun deserve serious scrutiny. The report states that CHR “suffers from a legitimacy deficit that casts doubts on the overall reputation of the United Nations”. Nothing could be more emphatic about a body which includes “who is who?” in the list of human rights violators - including China, Cuba, Nepal , Russia, Sudan, Zimbabwe and Saudi Arabia. The exclusion

of the United States and United Kingdom from this list of human rights violators for directly contributing to the enormous loss of lives and other human rights violations in Iraq would be plain “double standards”.

Membership:

The High Level Panel states, “the most difficult and sensitive issue relating to the Commission on Human Rights is that of membership. In recent years, the issue of which States are elected to the Commission has become a source of heated international tension, with no positive impact on human rights and a negative impact on the work of the Commission. Proposals for membership criteria have little chance of changing these dynamics and indeed risk further politicizing the issue”

Unfortunately, the High Level Panel’s recommendation - “the membership of the Commission on Human Rights be expanded to universal membership” – is fraught with politicising the CHR further. Universal membership cannot reduce politicization and double standards. The CHR has not adopted any resolution which should not have been adopted in the first place because of the good human rights record of a particular country. The issue has always been - if there could be a resolution against Cuba, why not against Saudi Arabia?

Giving veto powers to all the member States is an unworkable proposition. Decision making with all member States having veto powers would be time consuming, if not impossible. The CHR would effectively be a mini General Assembly and will require many Sub-Commissions/ Sub- Committees/Working Groups to facilitate decision making. To elaborate the likely scenerio with reality, at the 59^th session of the General Assembly, Belarus threatened to sponsor a resolution against the United States as a bargain to withdraw the US sponsored resolution against her.

The High Level Panel report observed that the CHR was initially composed of heads of delegation who were key players in the human rights arena and who had the professional qualifications and experience necessary for human rights work. It therefore recommended, “all members of the Commission on Human Rights designate prominent and experienced human rights figures as the heads of their delegations”.

The recommendation is contradictory to its observation that “in recent years States have sought membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticize others.” Designating human rights figures as the heads of the delegation is neither mandatory nor is it likely to address the tendency “to protect themselves against criticism or to criticize others.” 

The High Level Panel report dodges the critical issue as to why States who have proven appalling human rights record at home or who refuse to cooperate with same procedures they create – be it treaty bodies or Special Procedures of the CHR - should sit on the CHR.

Advisory Panel:

The High Level Panel report recommends appointment of an advisory council or panel to support the work of the CHR. This council or panel would consist of some 15 individuals, independent experts (say, three per region), appointed for their skills for a period of three years, renewable once”. The Advisory Panel, “in addition to advising on country-specific issues, the council or panel could give advice on the rationalization of some of the thematic mandates and could itself carry out some of the current mandates dealing with research, standard-setting and definitions”.

As the Special Procedures of the CHR are presently engaged exactly doing the same activities including directly reporting to the UN General Assembly, the recommendation to set up an Advisory Panel is perfunctory.

Global Human Rights Report:

The recommendation of the High Level Panel to the High Commissioner for Human Rights to prepare an annual report on the human rights situation worldwide is indeed order of the day. This could reduce selectivity and double standards. It could be presented at the CHR for discussions under agenda item on country situations. However, the issue of policitising the Office of the High Commissioner for Human Rights (OHCHR) for such a report cannot be underestimated. Moreover, does the OHCHR have the capacity to gather information from country level and prepare such a report? The United States State Department could share its own experience in terms of human resources required to prepare its annual Country Reports on Human Rights Practices. However, with allocation of 2 per cent from UN regular budget, OHCHR cannot prepare such a report with voluntary contributions. In this regard, upgrading the CHR to “Human Rights Council” at par with Economic and Social Council or Security Council, is welcome at least from budgetary perspectives.

Past experiences with past reforms on human rights mechanisms:

The past experiences of reforms of the United Nations human rights mechanisms, both charter based and treaty based, have been negative.

The Commission on Human Rights had its own reform six years ago. During the mid-term review of the Vienna Declaration and Programme of Action, at the 54^th session the CHR adopted a decision (1998/122) on 'Enhancing the Effectiveness of the Mechanisms of the Commission on Human Rights'. The CHR also adopted a resolution titled 'Restructuring the Agenda of the Commission on Human Rights through Resolution (E/CN.4/RES/1998/84) and introduced the 'Rationalization of the Work of the Commission' as a separate agenda item for the 55^th session. The Bureau on Enhancing Effectiveness of the Commission on Human Rights submitted its report (E/CN.4/1999/104) to the 55th Session. After acrimonious Working Group sessions, the CHR in its decision 2000/109 decided to "approve and implement comprehensively and in its entirety" the report of its inter-sessional open-ended Working Group on Enhancing the Effectiveness of the Mechanisms of the Commission on Human Rights.

One of the key outcomes of this rationalization process was excising country specific resolutions from the mandate of the Sub Commission on Human Rights since 2000. The Sub-Commission can no longer adopt country specific resolutions nor mention a country in a thematic resolution which had devastating impact on its effectiveness. The present mood at the CHR is to do away with socalled naming and shaming through country resolutions and stop scrutiny by the Special Procedures of the CHR.

In 2002, the Secretary General submitted "Strengthening the United Nations: An agenda for further change". On improving the functioning of the Treaty Bodies, it recommended that each State should be allowed to produce a single report summarizing its adherence to the full range of international human rights treaties to which it is a party. Apart from practical difficulties in examining a single report with requirements of different treaty bodies that will decrease effectiveness of examining the periodic reports, such a single report would also require amendments of the existing human rights treaties. The treaty bodies were able to reject the reforms proposed by the Secretary General which could have seriously undermined their effectiveness.

Reconsider support for universal membership:

The recommendations of the “High Level Panel on Threats, Challenges and Change” can have serious negative implications for the CHR. Universal membership can effectively do away with country resolutions, the advisory panel can reduce effectiveness of the Special Procedures, and the preparation of an annual report on human rights worldwide can politicise the OHCHR and reduce the effectiveness of the under-staffed Secretariat.

The UN High Commissioner for Human Rights, Justice Louise Arbour who reportedly supported the proposal for universal membership to the Commission on Human Rights at a meeting with the Norwegian NGOs in Oslo on 6 December 2004 needs to reconsider her position if the issue comes up at the 61st session of the CHR. The issue of criteria of eligibility for membership to the CHR, designed to ensure membership by "good" and "clean" states only, is not equivalent to what High Commissioner Arbour said, "the north putting the south on trial". By the same logic, universal membership could also mean “the south putting the north on trial” by the sheer majority of the member States from South.  Indeed, States from the South are the majority at the CHR. Out of 53 members, 15 States are from Africa, 12 States are from Asia and 10 States are from Latin America and Caribbean States, not to mention about Russia from Eastern European group which has been a member of the CHR since its establishment.

The United Nations is all about “encouraging” gradual development. It is not necessary to develop binding criteria of eligibility for membership to the CHR. It is however possible to encourage the States to develop non-binding criteria of eligibility such as the ratification of all core human rights conventions, submission of the periodic reports to the treaty-monitoring bodies and extending a standing invitation to all the Special Procedures (Special Rapporteurs, Working Groups and Independent Experts). Nor these criteria are foolproof guarantees to have socalled “clean” States. Nepal has ratified all the UN treaties and conventions, submits periodic reports and invites Special Procedures and the High Commissioner for Human Rights and yet had not taken any measure to ensure respect for human rights at national level even before the Maoists crisis started in 1996.

The criteria of eligibility for membership to the CHR are all about expression of commitment. However, innocuous recommendations have always proven to be destructive for the UN human rights mechanisms.