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In a window dressing, typical
of the United Nations, the General Assembly will be holding
Informal Interactive Hearings with Non-Governmental Organizations,
civil society and the private sector from 23-24 June 2005
at UN Headquarters in New York. The United Nations can proudly
claim that the General Assembly has organised a hearing
with the NGOs prior to its session in September 2005! But,
in reality the President of the General Assembly has prepared
the Draft Outcome Document on 3 June 2005 concretising the
proposals of the Secretary General contained in the report
In Larger Freedom and its Explanatory Note. The DOD
has become the text for negotiation. It can only be further
watered down during the negotiations. Any improvement in the
area of human rights would be next to impossible.
Kicking the UN Commission
on Human Rights upstairs is easier than establishing a credible
and effective Human Rights Council. While most non-governmental
organisations were quick to welcome the proposed Human Rights
Council, an effective and credible Human Rights Council seems
to have been lost in Kofi Annan’s search for a legacy – a
place in the history.
Many proposals of the Secretary
General have been simply illusionary (politicisation and selectivity
at the Commission on Human Rights) and negative (“duplication
of reporting requirements” to the Treaty Bodies). In his report,
In Larger Freedom,
the Secretary General emphasised that prospective members
of the Human Rights Council should “abide by the highest human
rights standards” but in the Explanatory Note, self-censorship
of the Secretary General on measuring the yardsticks to “abide
by the highest human rights standards” became evident. Secretary
General Kofi Annan built up such hypes about “politicisation
and selectivity” - a feature of all the UN bodies irrespective
of whether they are small like the Security Council or big
like the General Assembly - that he has left little room for
promoting pledges to become member of the Human Rights Council.
That United Nations is also about “encouraging” gradual development
seems to have been lost.
Having studied all the documents,
Asian Centre for Human Rights has a few pertinent questions
on the reforms in the area of human rights.
First, is the prevailing political situation
appropriate for initiating substantive reform of the human
rights mechanisms even though there is a need for more intrusive
and effective human rights mechanisms in the post September
11th period? Those States, which hold high moral
ground to preach others, have become “endangered species”.
While in the 1980s and 1990s human rights issues were raised
by a few governments, increasing cooperation and exchange
of information on counter-terrorism measures and security
issues no longer make it possible to raise human rights issues
at bilateral and multi-lateral levels. Even prior to the September
11th, the trend at the United Nations has been
weakening,
rather than strengthening, the UN human rights mechanisms.
Second,
is the reform of the Secretary General targeted towards the
Commission on Human Rights or the Security Council?
The Commission on Human Rights had too many reforms
to its detriment while there has been no reform with regard
to the Permanent Members of the Security Council. If one carefully
reads “Annex for decision by Heads of States and governments”
provided “In Larger Freedom: towards
development, security and human rights for all”, the only substantive change
recommended is the expansion of the Security Council. The
other recommendations on General Assembly, Economic and Social
Council, Secretariat, System-wide coherence, Regional organizations
and the Charter of the United Nations to eliminate the references
to “enemy States” contained in Articles 53 and 107 of the
Charter of the United Nations; to delete Article 47 on the
Military Staff Committee and the references to the Committee
contained in Articles 26, 45 and 46; and to delete Chapter
XIII on the Trusteeship Council are perfunctory. Obviously,
Secretary General cannot propose reform of only the Security
Council; it must come as a package. The question is whether
Human Rights Council is the trade-off for initiating reforms
of the Security Council.
Third, is the record of
the Secretary General’s reform of the UN human rights bodies
credible and innovative? In 2002, the Secretary General in his report "Strengthening
the United Nations: An agenda for further change"
recommended “a single report summarizing a State party’s implementation
of the full range of human rights treaty provisions to which
it is a party” to improve the functioning
of the UN Treaty Bodies. 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.
Obviously, Secretary General or those who drafted the Strengthening
the United Nations: An agenda for further change
did not take into consideration the need for amending the
existing treaties. That a recommendation, which is legally
untenable, came from the Secretary General was scandalous!
In his report, In Larger Freedom: towards
development, security and human rights for all, Secretary
General is still playing music to the ears of the Like Minded
Group of countries by suggesting to address “duplication of reporting requirements” without taking
into account the specificities of each human rights treaty.
This is nothing but an attempt of the Secretary General to
circumvent the legal opinion that a single report would also
require amendments of the existing human rights
treaties. This particular proposal of addressing “duplication
of reporting requirements” has far reaching consequences including the possible merger
of treaty bodies to consider a fewer periodic reports. This
proposal does not take into account the reform measures being
undertaken by the Treaty Bodies through Annual Meetings of
the Chairpersons of the Treaty Bodies.
Secretary
General has created such hype about “policitisation and selectivity”
of the Commission on Human Rights but failed to consider that
reporting to the treaty bodies is not all about “burden” on
the State parties but a reflection of the lack of political
will.
The devil is in the details.
And the lack of detailed proposals from the Secretary General
on the modalities, functions, procedures and working methods
as well composition of the Human Rights Council is the single
most weakness in the establishment of the proposed body. It
simply makes it difficult, if not impossible, to bring new
elements into the Draft Outcome Document.
The Asian Centre for Human
Rights makes the following recommendations for the proposed
Human Rights Council:
Mandate:
In addition to existing
functions, and responsibilities of the Commission on Human
Rights as provided under Economic and Social Council resolutions
1235 (XLII) and 1503 (XLVIII), the proposed Human Rights Council
should serve as the principal organ of the UN in the field
of human rights to which all human rights bodies will report
to; and in order to incorporate the advancement made for addressing
grave human rights crises, the Human Rights Council, inter
alia, should have the following the mandate:
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Establish standing panels/working groups consisting
of the members of the Human Rights Council or individual experts
who are not part of the Special Procedures systems to investigate
grave human rights violations;
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Refer situations of crises to the Security Council;
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Advise the Security Council regarding human rights
component of UN Peace Keeping and Peace Building missions;
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Refer situations of crises or patterns of abuses to
the International Criminal Court or any other international
criminal tribunals;
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Request International Court of Justice for advisory
opinions on legal issues pertaining to human rights; and
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Take decisions regarding the failure of a member State
to cooperate with its United Nations bodies including the
Treaty Bodies and Special Procedures;
Peer Review:
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The peer review should be held to examine the effectiveness
of the technical cooperation programmes between the Office
of the High Commissioner for Human Rights and governments;
and in addition to the member States, the members of the Advisory
Board of the Voluntary Fund for Technical Cooperation also
be invited to participate in the peer review;
Sitting:
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Human Rights Council will hold one annual session
to enable the NGOs from all over the world to participate
as well as special sessions on thematic issues or country
situations.
Composition
and membership: Promoting pledges
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While all member States of United Nations should be
able to seek membership to the Human Rights Council, those
who seek election to the proposed Human Rights Council should
pledge to ratify all core human rights conventions, submit
periodic reports to the treaty-monitoring bodies, extend a
standing invitation to all the Special Procedures and cooperate
with UN human rights mechanisms during the first tenure. Those
elected members of the Human Rights Council, which fail to
fulfill the pledge should not be eligible for immediate re-election
or till such period they do not fulfill their pledge;
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In addition, if a particular situation or geographical
region of a member State is referred to the International
Criminal Court or International Criminal Tribunals by any
United Nations body, that member State should not be qualified
to seek membership to the Human Rights Council.
Level of the Human Rights
Council:
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The proposed Human Rights Council should be one of the principal
organs of the United Nations and the Charter of the United
Nations be amended accordingly.
Financial
resources
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The proposed Human Rights Council should be funded
from the regular budget of the United Nations commensurate
with the powers and functions accorded to the Council and
financial implications of the decisions/resolutions to be
taken at each session.
Incorporating
the strengths of the Commission on Human Rights:
-
The proposed Human Rights Council shall preserve the
strengths of the Commission on Human Rights including the
system of Special Procedures, the Sub-Commission on Human
Rights and Standard setting working groups of both the Commission
on Human Rights and Sub-Commission on Human Rights.
NGOs:
-
NGOs which have obtained Consultative Status or Roster
Status with the ECOSOC should be able to participate in the
proceedings of the Human Rights Council with the same rights
even if the Human Rights Council is to be designated as a
principal organ of the UN or a Subsidiary organ of the General
Assembly. No separate procedure for Consultative Status/Roster
Status for the Human Rights Council be taken.
Treaty Bodies:
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The debate on the reform of the Treaty Bodies must
be restricted either to the experts of the Treaty Bodies or
only to those States which have ratified all the treaties;
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The Treaty Bodies should report to the Human Rights
Council and they be encouraged to develop procedures for dealing
with non-reporting by State parties, among others, by (a)
notifying the State party about its periodic report and availability
of technical assistance with respect to the preparation of
the periodic report one year prior to its due date; (b) a
reminder to the State party one year after its due date and
(c) automatic scheduling of the examination of implementation
of a treaty in the absence of periodic report two years after
its due date unless the State party informs about the submission
of periodic report within one year;
-
The criteria for dealing with early warning system
or urgent action cases such as the one developed by the CERD
Committee at its 979th meeting on 17 March 1993 (A/48/18,
annex III) be standarised to enable all treaty bodies to deal
with early warning and urgent action cases;
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The relationship between the Treaty Bodies and National
Human Rights Institutions be strengthened, among others, for
follow up of the implementation of the recommendations of
the Treaty Bodies; and
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The participation of NGOs in the proceedings of the
Treaty Bodies from the preparation of “List of Issues” to
“consideration of the periodic reports” should be standarised.
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