Global Policy Forum

By Dr. Gopal Krishna Siwakoti

For years NGOs have been exposing the shortcomings of the UN's main human rights body, including its inability to addr ess many situations of gross and systematic human rights violations. On the eve of the September World Summit on the Millennium Development Goals (MDG+5), Secretary General Kofi Annan has offered a historic opportunity to examine the achievements and the failures of the Commission on Human Rights (CHR) and to establish a system that responds swiftly to the needs of victims of human rights violations and their defenders.

Proposal for the creation of a Human Rights Council (HRC) to replace the CHR is on offing. However, the strengths and legacies of the CHR, some of them specifically acknowledged by the Secretary-General in his report on "Larger Freedom...", must be maintained and include the system of independent human rights experts and rapporteurs who make a unique contribution to the advancement of human rights as thematic or country experts; the rights and customary activities that NGOs enjoy under the ECOSOC Consultative Status and which do not exist elsewhere in the UN system.

They must be preserved because they enable NGOs to make that crucial contribution to the activities of the CHR without which the body would not have made the substantive progress in human rights promotion and protection that it has achieved; and the mandate to take political action on country situations where serious violations of human rights occur.

The HRC should include the following characteristics: be in session throughout the year and thus be able to meet in more frequent focused sittings and be capable of convening rapidly to deal with human rights crises; consist of members demonstrably committed to the protection and promotion of human rights; and regular scheduled review of the human rights accomplishments, shortcomings and capacity building needs of all countries in respect of all human rights based on an impartial, transparent and objective assessment of the human rights situation in each country. This assessment could be made under the authority of the High Commissioner for Human Rights with the assistance of independent experts.

Any reform is expected to result in a stronger UN human rights system. Reform must lead to the principal UN human rights body addressing systematically and effectively all human rights violations on the basis of expert and independent information, including from treaty bodies, special procedures, UN country teams and the Office of the High Commissioner.

The effectiveness and legitimacy of any human rights body depends on its members' demonstrated human rights commitment, their readiness to be held accountable for their human rights obligations and their effective cooperation with human rights mechanisms. By cooperation, means responding fully and promptly to communications, facilitating visits by special procedures including through the issuance of standing invitations, by implementing their recommendations and by submitting timely reports to the treaty bodies.

Special procedures have emerged as one of the most creative and practical tools of the commission. The system of special procedures is an integral part of any UN human rights system and should be not only maintained, but significantly strengthened in any new body. Victims also rely on the growing impact of the human rights treaty monitoring bodies. Yet especially with the increasing ratification of human rights treaties, these expert bodies face a severe overload. States parties and the Secretary-General must work in concert with NGOs and other stakeholders to strengthen the treaty bodies to function as a strong, professional and unified system, with members that clearly have the highest competence, independence and commitment.

Vital issues, including the new council's composition, operating rules and procedures, its role vis-í -vis other organs of the UN system and its relationship with non-state actors and civil society bodies are under consideration among stakeholders. Most importantly, how the rights of the individuals and communities will be protected and safeguarded in the face of the most egregious violations whether by democracies or autocracies is also under consideration. At the heart of the reform process, civil, political social, economic and cultural rights must find appropriate balance. Preferring one or the other based on State power constitutes a negation of the indivisibility and interdependence of human rights.

Member States would need to decide if they want the HRC to be a principal organ of the UN or a subsidiary body of the General Assembly. Because NGOs are restricted from active participation in the General Assembly in any other capacity, there is a growing concern that the creation of HRC as a subsidiary of the General Assembly would hinder the essential role of NGOs in their vital work concerning human rights. The role of civil society has historically been integral to the CHR and should be secured and strengthened in the proposed HRC. The UN reform and the creation of a HRC should move human rights issues more to the center of the agenda of the UN, integrating these issues into security and development. If UN reform is to be more effective in its action toward all of these ends, it must be open to civil society and draw from the human rights work of NGOs.

The global human rights community can not see organizational manipulations or a name change to be particularly helpful in promoting the cause of human rights. No State should be seated at the CHR/HRC who has not ratified all human rights instruments. The suitability of any aspirant to a seat at the CHR/HRC should be amenable to a challenge at the International Criminal Court (ICC). It is significant also that these reforms are recommended within a political context of attacks on the human rights framework by conservative actors both within the UN and in national arenas. As evidenced in many recent negotiations, certain States claim limitations to 'what human rights mean' and vociferously argue that 'no new rights' are implied in interpretations of and evolving standards in human rights. These claims are often made in relation to women's human rights, which are indeed frequently the battleground for criticism of human rights.

Overall, there is danger as well as opportunity in the UN reform process. Collectively, the goal must be to use it to strengthen the human rights system and simultaneously minimize the very real risks of some governments seeking to dismantle those aspects of the system that have been effective in raising human rights issues to greater visibility. Many States will have political agendas in the process, and regional blocs and States in other types of alliances will undoubtedly engage in behind the scenes deal-making that could put the UN human rights system at risk, even in the name of reform.