1. The Asian
The Asian Group’s “Non-Paper”
seeks to virtually destroy the advancement made in the field
of human rights since 1970s in an attempt
to stop any scrutiny by UN experts. It also seeks to exclude
independent experts in the name of addressing “conflict of
interest”, gag the independent experts in the name of developing
code of conduct including guidelines
for media interaction such as press releases, press conferences
and statements, and virtually stop any communication from
the Special Procedures in the name of criteria of admissibility of allegations of human rights violations
and urgent appeals.
The Asian group also referred to the proposals contained in the report of the Open-ended Working
Group on Enhancing the Effectiveness of the Mechanisms of
the Commission (E/CN.4/2000/112) and decision (2000/109 of 26 April
2000) of the Commission on Human Rights on the issue.
These recommendations have been fully implemented.
2. Issues for discussion:
The Secretariat of the OHCHR
identified a few key areas for discussion as given below.
The role and functions of the Special Procedures
the Special Procedures have proven to be the most effective
mechanisms of the Commission on Human Rights. And their effectiveness
has become problematique for governments with poor human rights
impartiality and expertise in the selection of mandate-holders
are common refrain of the human rights violators. In the name
of ensuring such independence, the Asian Group in its Non-Paper
recommended that “There should be no conflict of interest
between an individual's responsibility as a mandate holder
and his other professional commitments. Specifically, the
individual to be considered for appointment as a mandate holder
should neither be holding a government post nor be a salaried
member of an NGO or a member of the Governing Bodies of advocacy
groups in the area of the mandate.”
a human rights expert in the South who is not “a salaried
member of an NGO or a member of the Governing Bodies of advocacy
groups in the area of the mandate” is akin to finding the
Rosetta stone. It negates the universality, indivisibility
and inter-dependence of human rights.
does one define “government post”? Would a University teacher
in China or Cuba be considered as not holding “government
post”? What about the think-thanksor policy institutes set
up by the governments across the world?
any frank discussion on “cooperation between Member States
and mandate-holders, including the requests for visits and/or
for responses to communications” should be limited to those
States which have issued standing invitations to the Special
Working methods of the mandate-holders
agenda of the proponents of this workshop, the Asian Group,
is not to increase efficiency but to bring in the issues like
a code of conduct for the mandate holder of the Special Procedures,
criteria for admissibility of allegations of human rights
violations and censoring country visit reports prior to their
submission to the Commission on Human Rights.
The Asian Group’s Non-paper
states “Letters containing human rights allegations from special
mechanisms to member states under stamped signatures is a
legal infirmity. Letters transmitting such allegations should
be personally signed by the mandate holders.”
Given the proposal not to
include any salaried person or advisory members from NGOs
and government, such a proposal could be effective only if
the Special Rapporteur are paid remuneration, posted with
the OHCHR and able to undertake mission and address urgent
human rights violations.
The Special Procedures suffer
from incapacity to follow up. According to the OHCHR, in 2004
“over 1,300 communications were sent to 142 Governments, addressing
4,448 individual cases. There is very little follow-up, however,
to these reports and communications, and the rapporteurs themselves
(who serve in a volunteer, part-time capacity) are not in
a position to follow up, especially on individual cases”.
could be developed to follow up the cases, the credibility
of the Special Prcoedures will continue to suffer.
iv. Cooperation with NGOs
the support of the NGOs, most Special Rapporteurs would not
be able to fulfill their mandate. The NGOs continue to provide
key information to the mandate holders.
in all the discussions on the effectiveness of the Special
Procedures, NGOs from the South has been often left out due
to a host of factors including the lack of resources while
their governments continue the onslaught to destroy the Special
It goes without saying that there are more human rights violations
in the South and therefore, the need to approach the Special
of the key concerns of the Asian Group is alleged proliferation
of the mandates of the Special Procedures. It could only be
compared with the United States concern for nuclear proliferation!
distinguished representative of the government of Pakistan
under Agenda Item 18 of the 61st session of the CHR stated
that there is a “need to objectively assess if the proliferation
of mandates was serving the cause of human rights”.
The Asian Group which often complains about the proliferation
of the mandates of the Special Procedures have been sponsoring
the resolution entitled "Promotion of the enjoyment of
the cultural rights of everyone and respect for different
cultural identities" since the 58th session.
Since then, it has been recommending the possibility of appointing
a Special Rapporteur. In its three paragraphs report (E/CN.4/2003/51)
to the 59th session, High Commissioner for Human
Rights concluded, “No new information has been received concerning
the above-mentioned resolution since the Secretary-General's
report to the General Assembly on human rights and cultural
diversity (A/57/311 and Add.1)".
Yet the same resolution was adopted at the 59th
session and at the 60th session (E/CN.4/RES/2004/20), although majority respondent States opined against
the appointment of a Special Rapporteur. At the 61st
session, the CHR once again adopted the resolution E/CN.4/RES/2005/20
with the same request while stressing the importance “to avoid
overlapping with the activities of the United Nations Educational,
Scientific and Cultural Organization and other bodies and
organizations of the United Nations system when establishing
the mandate of the independent expert and to bear in mind
the significance of encouraging synergy between all actors
dealing with cultural rights and the issue of cultural diversity”.
Such hypocrisy is not
new to the Commission on Human Rights.
Given the lack of specific
proposals on the mandate, power and functions, membership
etc of the proposed Human Rights Council, the discussion on
the relationship between the Special Procedures and Human
Rights Council is likely to be perfunctory. The seminar is
not so much about “enhancing and strengthening the effectiveness
of the special procedures” as it preaches. It is all about
stopping the human rights violators from Asia who are at the
gate from destroying the effectiveness of the Special Procedures.