Global Policy Forum

By John Pace *

The General Assembly of the United Nations has finally agreed to establish a Human Rights Council. The Council will replace the Commission on Human Rights, established in June 1946 in accordance with Article 68 of the UN Charter. Like all changes, this one is fraught with exciting potential as it is with daunting risks. There is no doubt that a change was due, especially since the Vienna World Human Rights Conference of 1993. In Vienna, the human rights agenda was reformulated by the international community and new priorities were enshrined in the Vienna Declaration and programme of Action.

It is in this context that the creation of the Council should be examined; the Declaration contained several significant statements, among them this one, taken from its preamble, saying that the document was adopted "[i]nvoking the spirit of our age and the realities of our time which call upon the peoples of the world and all States Members of the United Nations to rededicate themselves to the global task of promoting and protecting all human rights and fundamental freedoms so as to secure full and universal enjoyment of these rights".

After the establishment of a UN High Commissioner for Human Rights (1993) and of the International Criminal Court (1998), with, inter alia, jurisdiction over crimes against humanity (or "human rights crimes"), the reform of the Commission was long overdue. The Commission was set up in 1946 for the purpose of drafting the International Bill of Human Rights, which it completed in 1966. During its existence, the CHR grew as the membership of the UN grew (18 countries to begin with, 21 in 1961, 32 in 1966, 43 in 1979 and 53 in 1992). It also grew in the extent of its participation, to include most States members of the UN. It should be borne in mind that, other than voting, non-members of the Commission (and of the new Council) enjoying most rights of members, including the right to make proposals. Another feature worth recording is the overall increase in participation of civil society – not always appreciated by Government representatives. The number of participants at the last session of the CHR in 2005 ran into thousands.

More importantly, it grew in the significance of the content of its work. Over the years, the Commission had shifted focus to include the implementation of international human right standards. Four milestones might be highlighted:

• the decision to look into human rights situations in particular countries on an ad hoc basis (1967), followed by an expansion to take up violations on a thematic (as distinct from country) basis,

• the decision to set up a Voluntary Fund for Technical Cooperation in the field of Human Rights (1987) and, which opened the way to the focus on measures of prevention, the decision to address human rights education (1988),

• the decision to authorise special sessions of the Commission (1990, taking effect in 1992)

• the inclusion of human rights components in UN field missions (1994 on)

By 1989, when the decision was taken to convene the World Conference on Human Rights, the Commission had developed an impressive body of international human rights law with a related treaty-based mechanism for implementation, and a parallel, extra-conventional system of so-called ‘special procedures'.

The work of the United Nations in the field of human rights has been traditionally grounded in a combination of genuine concern for the need to protect the dignity of the individual as well as a long-sighted vision of "national interests" on one hand, and of a cynical involvement inspired by misplaced considerations of sovereignty or short-sighted understanding of "national interests", on the other. The initiative behind the establishment of a Human Rights Council is no exception.

On one hand, there is a stated concern to concretize for the benefit of people every where, the content of international human rights standards developed (largely by the Commission) over the decades. There is also overwhelming agreement that for this to happen there is a need to dedicate a balanced focus on the realisation both of civil as well as of economic rights. In spite of the rhetoric on inter-dependence of rights (repeated in the resolution setting up the HRC – GA Resolution 60/251), in practice the international community has not reached consensus on the need to have a balanced focus. Moreover, current efforts in various regions [e.g. the Middle East] to introduce "democracy" are not backed by any serious priority on reducing poverty or creating living conditions that would enable the creation of efficient institutions to ensure that democracy is viable.

If the new Council turns out to be a forum where this balance between groups of rights can be achieved, then this would have been a major step forward in the history of the United Nations. Notwithstanding the need for change, the reasons invoked by some member States, and in the media have been described as motivated by a desire to replace a "discredited" or "failed" institution, by one that relies on a membership that does not include "chronic violators of human rights".

It is a historical fact that no State is innocent of serious human rights problems from time to time in its history. That is precisely why international standards have been established and why institutions for the implementation have been devised. After all, these standards were hn themselves drafted by a Commission that included the worst human rights violators of the time. It is historically incorrect to describe the Commission as a failed institution; but if failures there have been, it is important to look into the Commission's record to see where it has failed, at least in order to ensure that the Council avoids these errors. It is also incorrect, and bound to failure, to attempt creating a human rights "elite" that would watch over the "violators". This ‘elitist' mentality has characterised the approach of some developed countries in the CHR.

What does the HRC bring?

There are some interesting innovations, such as:

1. the introduction of a "universal periodic review mechanism". Any state wishing to be a member of the Council is to be the subject of such a review during their membership. The modalities for that mechanism are to be worked out by the Council during the first year of its existence – no mean task, since that would leave two years – or less in some cases – in which to conduct periodic reviews for the membership of the new Council. This ‘innovation' (a "warmed up" version of a system of ‘periodic reporting' by member States, abandoned by the Commission in the late seventies after the coming into force of the ICCPR and the ICESCR) provides a formidable challenge, considering the failure of Article 41 of the ICCPR to operate.

2. the provision for suspension by the General Assembly by a two-thirds majority if the Council member commits "gross and systematic violations of human rights". The current international climate does not make this a realistic option. That term has a specific connotation in the Commission's work; how and who will make that determination in the General Assembly itself is yet to be determined. Arguably the mandatory periodic review could serve as a basis for such an action.

3. the two-term limit on membership. This is an attempt to maintain "oxygen" in the Council; unlike the Commission, where some members became "regulars". (Russia and India have been members of the Commission since its establishment, the US was out for one year – 2002 and the UK was out in 1979 and 1991). They are elected by a simple majority of the General Assembly. This does not change much from the present arrangements, in that the Council – like the Commission – is made up of geo-political groups and as such elections can be, for all intents and purposes, determined at the level of the geo-political group.

4. the proviso to have the Council meet regularly throughout the year; the introduction of special sessions for the Commission in 1992 was already an improvement, and enabled action on some important situations, notably Yugoslavia (1992) and Rwanda (1994). A mandatory three sessions plus a minimum of ten weeks per year should address one of the main problems encountered by the Commission in its recent years – the sheer volume of work and the notable absence of corresponding resources.

5. it is a smaller body (47 members compared with the Commission's 53). There will be 2 less African States, 3 less Latin American and Caribbean, 3 less Western European, and one more Asian and one more Eastern European members. Any UN member may be elected, but in electing them, the members of the UN "shall take into account the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments made thereto". Once elected they "shall uphold the highest standards in the promotion and protection of human rights, fully cooperate with the Council, and reviewed under a periodic review mechanism during their term of membership". The modalities of this mechanism are to be developed within one year after the holding of the first session – sometime in mid 2007. The effective implementation of this mechanism will require an unprecedented level of efficiency and good faith by member States, to judge by the poor reporting record to the treaty bodies – not to mention the preparedness of the Secretariat.

The Council will inherit the work of the Commission but it has one year within which to review the Commission's legacy, "in order to maintain a system of special procedures, expert advice and complaint procedure" – meaning that these three ‘tools' developed by the Commission, will not be dropped. A number of UN members would have dearly wished to see some of these mechanisms eliminated; depending on the prevailing climate in the Council, these mechanisms could still be weakened. The reliance on input from non-member States, as well as civil society and national human rights institutions, is also maintained What is in store for the new HRC?

In all likelihood, nothing much will change, at least in the immediate future. Why? Because the parties that make up the international community themselves, have not or will not change. In particular, the attitude that human rights is "something that goes wrong somewhere else", and conversely, that human rights are proscribed by historical, traditional religious values – the old "cultural relativism" argument, still characterise the membership. The change to a Council is not the result of any detectable change in these attitudes.

Perhaps the most significant change is the shift of the main UN human rights body from being a functional Commission of the Economic and Social Council to an organ created by the General Assembly. We have seen above how the Commission evolved from a drafting body to the hybrid forum it is today. This new situation brings human rights issues much closer to the international political – and security – fora than heretofore. It also acknowledges the international political recognition that violations of human rights are directly linked – both as cause and effect – to international peace and security. This should have the effect of placing the new Council more centrally in the international community's efforts to address the implementation\realisation of international human rights standards.

A major consideration in examining the future of the Council is the vital role that the High Commissioner for Human Rights will need to play as the "United Nations official with principal responsibility for United Nations human rights activities under the direction and authority of the Secretary-General". The Office has a considerable substantive as well as a management responsibility in this change. It constitutes a formidable challenge to the Office to live up to the role of the Secretariat over the years in balancing the political cynicism with sound substantive direction.

About the Author: John Pace served as Secretary to the United Nations Commission on Human Rights for sixteen years; in 1991-1993 he was the Coordinator of the World Conference on Human Rights, held in Vienna in June 1993. He recently completed an assignment as Human Rights Chief for the UN Assistance Mission in Iraq. A native of Malta, he currently resides in Australia, where he is associated with the Australian Human Rights Centre at the University of New South Wales Faculty of Law.