Despite serious improvements
in the working methods of the Secretariat (the Office of
the High Commissioner for Human Rights), the capacity of the treaty monitoring bodies is limited
by several factors, in particular non-ratification of the
treaties and their optional protocols; long overdue of the
initial and periodic reports; budget allocation and ability
to examine only a few periodic reports in a year; and reservations
made by the governments upon ratification.
It is to be feared that, as in previous years, governmental
delegations shall focus on their heavy burden in preparing
their reports to the treaty bodies. Reporting obligations
constitute indeed a serious burden, but only for those States
having ratified many human rights Conventions. Moreover,
the current discussion on the necessary reform of the treaty
bodies system should not lead to diluting the legal obligations
of the States parties to submit reports on the difficulties
they have and the measures they take to implement these
treaties; to give a serious follow-up to the final observations
of the Committees; and to include in their municipal laws
the views expressed by the treaty bodies in their general
As we still are far from universal ratification, reform
measures should currently be adopted only by those States
which have ratified all the conventions.
A long time ago, the U.N.
General Assembly called the appropriate United Nations bodies,
“particularly the Commission, to take timely and effective
action in existing and future cases of mass and flagrant
violations of human rights” (resolution 34/175). Unfortunately,
facing numerous cases
of massive and systematic human rights violations around
the world, the Commission becomes more and more silent.
Since 1998, when a Special Rapporteur was appointed on
Nigeria, the number of country resolutions and of country
Rapporteurs has crumbled into dust. During its 2002 session,
the Commission abruptly terminated the mandates of its Representatives
on Iran and Equatorial Guinea, and refused to adopt drafts
on Zimbabwe and Chechnya. In 2003, it ended the mandates
of the Special Rapporteurs on Afghanistan, Sudan and former
Yugoslavia, and again rejected genuine initiatives on Zimbabwe
and Chechnya. And last year, during its 60th
session, the Commission terminated all the mandates on African
countries under its item of human rights violations, and
kept silent on the human rights abuses committed in Iraq.
The special procedures of the UN Commission on Human
Rights constitute a major indicator of the situation in
the countries and the main source of information for the
delegates. With the creation of a special Branch in the
Office of the High Commissioner, a series of measures have
been taken, which considerably improved the quality of the
reports. Working methods were streamlined, joint interventions
promoted, past duplications avoided. However, instead of
cooperating with these enhanced mechanisms they have created,
instead of addressing the serious cases of human rights
violations raised in these reports, since 1995 every year
an increasing number of member States prefer to voice strong
criticism against the Special Rapporteurs, Representatives
and independent experts of the Commission.
The current debate on country resolutions is hiding
an even more disturbing enterprise, that of the dismantling
of the thematic procedures. The Commission is loosing credibility
not only when it does not act on a country committing flagrant
and massive human rights violations (e.g. last year Sudan,
Zimbabwe, Chechnya, China), but also when its members systematically
undermine the thematic procedures.
Obviously too many governmental
delegations participate in the annual session of the Commission
not to promote human rights, but to defend the interests
of their States and to avoid scrutiny and shaming. No region
is exempted. At the 60th session of the CHR, after the visit
made by the Special Rapporteur on Torture to Spain, the
Spanish delegation launched an unusual offensive against
him, despite the widely recognized objective report submitted
by the Rapporteur to the Commission.
At the 59th session,
the representative of the Philippines launched similar offensive
against the Special Rapporteur on the situation of human
rights and fundamental freedoms of indigenous peoples.
Lack of respect and personal
attacks against the experts they have appointed; restrictive
proposals, like decreasing the number of procedures, fixing
a maximum number of pages for the reports, new rules for
appointments of the experts; false allegations of ‘partiality’,
‘double standards’; all these constitute tools for dismantling
this indispensable system.
In its 63rd
issue of weekly ACHR REVIEW, Asian Centre
for Human Rights discussed the threat to the Special Procedures
posed by the Like Minded Group (LMG) at the 61st
session. The LMG mainly led by Asian Group might once again propose an innocuous decision to destroy the capacity
of the Special Procedures in the name of enhancing them.
reportedly seeks to propose that the mandate holders of
the Special Procedures must have no association with non-governmental
organisations in order to maintain their independence, in
addition to the earlier proposals like nominating the Special
Procedures through election, adoption of a code of conduct
for the Special Procedures and development of criteria for
admissibility of the complaints as the case with regard
to 1503 Confidential Procedure.
The reluctance to extend
standing invitations to the Special Procedures is an indication
of the current threat. Since 1999, out of 192 member States
of the United Nations, only 50 members States have extended
standing invitations to all the special (thematic) procedures
of the UN Commission on Human Rights. These member States
are Argentina, Austria, Belgium, Brazil, Bulgaria, Canada,
Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark,
Ecuador, Estonia, Finland, France, Germany, Georgia, Greece,
Guatemala, Hungary, Iceland, Ireland, Iran, Italy, Latvia,
Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta,
Mexico, Mongolia, Netherlands, New Zealand, Norway, Paraguay,
Peru, Poland, Portugal, Romania, San Marino, Sierra Leone,
Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland,
Turkey and the United Kingdom.
From the Asian Group, only
Iran and Mongolia have extended standing invitations. Iran
had basically extended standing invitations to get rid of
the country resolutions.
From the African Group,
only Sierra Leone and South Africa have extended the standing
Nine member States from
Latin America, Argentina, Brazil, Colombia, Costa Rica,
Ecuador, Guatemala, Mexico, Paraguay and Peru have extended
A majority of the members
of the 61st session of the Commission on Human
Rights have not extended standing invitations: no member
States from Africa and Asia; no invitation either from Australia and USA (Western Group) or from Russia,
Armenia and Ukraine (Eastern European Group) has been extended.
6 out of 10 members of the
Extended Bureau of the 61st session of the Commission
on Human Rights - Indonesia (Chair), Mauritania (Vice-Chair),
Ukraine (Vice-Chair), Ethiopia (African Coordinator), South
Korea (Asian Coordinator) and Armenia (Eastern European
Coordinator) – also have not extended standing invitations
to the Special Procedures.
National Human Rights Institutions
The importance of the National Human
Rights Institutions (NHRIs) has been
widely recognized in many annual resolutions of the Commission,
ECOSOC and General Assembly, by the Committee on Economic,
Social and Cultural Rights (CESCR) in its General Comment
highlighting the potential role of national institutions
in the protection of economic, social and cultural rights
(December 1998) and in the preparatory process to the 2001
World Conference Against Racism.
Yet, at the 61st
session of the UN Commission, under the same agenda item
18, many National Institutions (NHRIs) are likely to make
a beeline for interventions, mainly to support the governments
and to glorify themselves. At the 60th session,
the meeting of the International Coordination Committee
of the NHRIs was attended by 37 National Institutions.
The growing importance of
national institutions in the work of the UN Commission should
not be part of the attempts of those States having a dark
human rights record to avoid "naming and shaming".
Their participation in the sessions of the Commission therefore
should not constitute an alibi for those violating human
rights on a large scale. NHRIs should contribute to the
debates with their expertise, and not constitute a buffer
against criticism of their country, as it is sometimes the
Since 1994, the Commission on Human Rights has recognized
the International Co-ordinating Committee elected by the
national institutions (ICC) as having a threefold role:
assessing the conformity
of each national institution with the Paris Principles,
that is to say recognizing and accrediting the NHRIs;
providing, when requested,
technical assistance to governments and NHRIs;
to follow-up on resolutions
and recommendations relating to the strengthening of NHRIs.
To say the least, many national institutions attending
the session of the Commission do not respect the Paris Principles
and several observers have expressed doubts about the accreditation
standards of the ICC. Main factors to this weakness are
the fact that many
National Institutions in Europe do not meet the Paris Principles,
and that there is obviously a field of tension in the ICC between
two tasks: assessing conformity with the Principles, and
providing assistance to NHRIs (at least, the way the ICC
sees its role in this field).
Concerns were expressed about this accreditation process
not only by human rights organisations, but also by the
High Commissioner, Ms. Mary Robinson, when addressing the
2001 annual ICC meeting:
“The International Co-ordinating Committee must play
its part too by ensuring that the national institutions
that you recognize are in genuine compliance with the Paris
This weak accreditation process is worrying, indeed.
It has the support of many member States of the Commission.
Thus, whilst the Paris Principles hold that NHRI are best
when established as constitutional bodies or through legislation,
the Australian draft resolution submitted during the 59th
session of the Commission was suggesting that the Commission
recognize “that it is the prerogative of each State to
choose for the establishment of a national institution,
the legal framework that is best suited to its particular
It should be reminded
that the Paris Principles constitute minimal guarantees.
They are guidelines, lowest common denominator, not benchmarks.
Critical NGOs evaluations of national institutions often
have uncovered their inadequacies. Therefore the accreditation
process should change and the Principles should be re-examined
Yet, even if most members of the Asia Pacific Forum
of NHRIs do not meet the Paris Principles, they have been
facing serious threat from the governments.
On 17 March 2005, King Gyanendra
delivered the final assault on the National Human Rights
Commission of Nepal (NHRC) by forming a cover up
high-level nine-member committee headed by the Attorney
General to protect human rights. The nine-member committee
will include the secretaries of the Ministries for Home,
Defence, Foreign Affairs, Law, Justice and Parliamentary
Affairs. Secretaries of the Ministry of Women, Children
and Social Welfare, Ministry of Local Development, Ministry
of Education and the National Director at the Human Rights
Promotion Centre are also in the committee. The Secretary
at the Office of the Prime Minister and the Council of Ministers
is the committee’s member- secretary.
Under the Human Rights Commission
Act of 1997, new members of NHRC cannot be appointed in
the absence of a
Prime Minister (PM) and an opposition leader when the tenure
of the current members expires on 25 May 2005. If King Gyanendra
cannot appoint new members, the committee will replace the
NHRC. On 5 March 2005, security
forces barred a team of the National Human Rights Commission
comprising of Sushil Pyakurel, Dr Gauri Shankar Lal Das
and head of NHRC’s Protection Division Yagya Prasad Adhikari
from flying to Bhairahawa to investigate human rights violations
in Kapilavastu. Another team of NHRC was permitted to visit
later but its report was inconclusive and condemned by the
NGOs. It is clear that NHRC of Nepal too has collapsed.
Prime Minister Thaksin Shinawatra of Thailand has
also recently proposed to form another Human Rights Committee
despite having a National Human Rights Commission. Senator
Kraisak Choonhavan stated that the planned setting up of
another human rights committee despite the existence of
the National Human Rights Commission is meant to buy time
for the government to take responsibility for human rights
violations, especially the Tak Bai killings of October 2004.
In the debate under item 18, experts and NGOs should
raise their concerns that national and international human
rights mechanisms are increasingly being eroded and access
to justice is increasingly becoming difficult.