Asian Centre for Human Rights

Dedicated to promotion and protection of human rights in Asia

 

ACHR REVIEW
[ Special Issues for the 61st session of the United Nations Commission on Human Rights]

Embargoed for 13 April 2005
Review: CHR61/68/05

Erosion of national and international
 human rights mechanisms

By Adrien-Claude Zoller, President, Geneva for Human Rights- Global Training
&
Suhas Chakma, Director, Asian Centre for Human Rights


On 13 April 2005, the 61st session of the United Nations Commission on Human Rights is scheduled to discuss agenda item 18 on “effective functioning of human rights mechanisms”. The erosion of national and international human rights mechanisms is unlikely to figure in the interventions of the governments.

Treaty bodies

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 comments.

As we still are far from universal ratification, reform measures should currently be adopted only by those States which have ratified all the conventions.

Special Procedures

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. The LMG 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.

Standing invitations

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 invitations.

Nine member States from Latin America, Argentina, Brazil, Colombia, Costa Rica, Ecuador, Guatemala, Mexico, Paraguay and Peru have extended standing invitations.

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 [1] ; 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 case.

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:

(1)    assessing the conformity of each national institution with the Paris Principles, that is to say recognizing and accrediting the NHRIs;

(2)    providing, when requested, technical assistance to governments and NHRIs;

(3)    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 Principles”.

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 needs”…

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 and improved.

Threats on NHRIs

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.



[1] The African Group include Burkina Faso, Congo, Egypt, Eritrea, Ethiopia, Gabon, Guinea, Kenya, Mauritania, Nigeria, Sudan, Swaziland, Togo and Zimbabwe. The Asian members are Bhutan, China, India, Indonesia, Japan, Malaysia, Nepal, Pakistan, Qatar, South Korea, Saudi Arabia and Sri Lanka

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