Global Policy Forum

The replacement of the Commission on Human Rights by a Human Rights Council has been proposed by the Secretary General in his report "In Larger Freedom, towards Development, Security and Human Rights for All", released in March 2005. In this paper, that came out, whether hazardously or not, in the midst of the 61st session of the Commission on Human Rights (CHR), Kofi Annan recognized the unique contribution of the Commission to the development and codification of international human rights law and its "close engagement with hundreds of civil society organizations" which "provides an opportunity for working with civil society that does not exist elsewhere"[1]. However, he also very bluntly acknowledged a situation that NGOs had been denouncing for years, namely that the CHR had lost credibility and professionalism and, even worse, that "States had sought membership to the Commission to protect themselves against criticism or to criticize others". One of the main criticisms moved by NGOs towards the Commission had been openly and officially recognized by one of the principal UN organs! This in itself was a revolution.

In order to obviate to this contradictory situation and in his quest to elevate human rights to one of the three main pillars of the Organisation – along with peace and security and development - the SG suggested to replace the CHR by a smaller, standing Human Rights Council. This would become a principal organ of the UN – like the Security Council and the Economic and Social Council – or, alternatively, a subsidiary organ of the General Assembly and its members would be elected by the GA by a 2/3 majority. Additionally and maybe most importantly, "those elected to the Council should abide by the highest human rights standards".

This proposal put NGOs in a schizophrenic and somehow embarrassing situation. Even though they were in general and in principle favourable to reforming the discredited CHR, there was a general fear that NGOs could lose in the new organ the rights and privileges acquired at the Commission and long fought for during more than fifty years. After Kofi Annan came to Geneva to present personally his reform proposal, the CHR devoted an informal session to discussing the issue and NGOs delivered three joint statements that all concurred in this concern[2].

Indeed, the participation of NGOs in the activities of the CHR has reached an impressive level: according to the OHCHR, the 61st session witnessed the participation of 261 NGOs, for a total of 1946 individuals, that submitted 351 written statements, 473 oral ones and 84 joint statements.

How could we come to such an extraordinary level of involvement?

The participation of NGOs in the activities of the United Nations is granted by article 71 of the UN Charter, which states that "The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence". It is hence only with the Economic and Social Council (ECOSOC) that NGOs have this charter-based right of consultation, whose modalities were laid down by ECOSOC in several resolutions, the latest of which is ECOSOC Resolution 1996/31, still in force today.

The consultative status allows NGOs to be "consulted" by ECOSOC or its subsidiary bodies on matters falling within their competence. Among the ten functional and five regional ECOSOC commissions, the CHR is certainly the ECOSOC subsidiary body where NGOs have been able to gain over the years most of their influence and credibility. This is certainly due to the peculiar nature of human rights, the promotion and protection of which would be unconceivable without the active participation of individuals – the rights-holders – and their associations vis í  vis the States, that are at the same time the standard setters in international human rights law and the main duty-bearers. It's mainly independent NGOs that can, together with independent experts raise the concerns of the victims before the international community.

Hence the dilemma: since the consultative status is related to ECOSOC, what will happen to NGOs in the future Human Rights Council, that the SG intended to upgrade to a principal UN organ or to a subsidiary body of the GA? We know by now that the High-level meeting of the General Assembly (September 2005) could only agree on the latter proposal, the former being far too ambitious since it would have required an amendment of the Charter. However, even in this case, there is no formal accreditation mechanism of NGOs with the General Assembly or its subsidiary organs. NGOs feared that the transformation of the Commission into a Council could have the unintended effect to restrain their rights of participation, particularly at a moment in history where multilateralism is threatened and many challenge the participation of civil society in global decision-making processes.

Indeed, NGOs have advocated for decades to be consulted by the highest deliberative body of the Organisation and our appeal has finally been heard by the Secretary General who, in his already mentioned report, agreed that the United Nations would benefit from extending and standardizing the practice of involving NGOs in its deliberations, so that they become a regular component of the GA work. The report suggested that "prior to major events, the Assembly could institute the practice of holding interactive hearings between Member States and NGO representatives that have the necessary expertise on the issues on the agenda".

The General Assembly precisely held for the first time such hearings with civil society and the private sector in June 2005, as an input into the draft Outcome Document to be adopted by the High-level Meeting of the GA in September and devoted to the reform of the United Nations and, among others, to the creation of Human Rights Council. On this occasion NGOs insisted heavily, again, on the need to be ensured at least the same level of participation in the Council that they have in the Commission.

Even though many member States concurred with this view, NGOs have in general been very disappointed by the final GA Outcome Document: it does state the decision to create a Human Rights Council, but it doesn't contain any further details, leaving it to the "President of the GA to conduct open, transparent and inclusive negotiations, to be completed as soon as possible during the sixtieth session, with the aim of establishing the mandate, modalities, functions, size, composition, membership, working methods and procedures of the Council"[3].

Ambassador Eliansson, the current GA President, has conducted intense negotiations on a draft resolution that would lay down the functioning of the future HRC. However, in a first co-chairs text presented in December, the wording on NGO participation had been gradually weakened and in a letter written to Ambassador Eliansson at the end of January, CONGO expressed its concern that the vagueness of the wording could not guarantee – and that it could even impede – the participation of NGOs as granted by the rules and practices of the current Commission. We suggested that the GA resolution should contain an explicit reference to the ECOSOC arrangements for NGO participation within the framework of Article 71 of the UN Charter, providing NGOs with the right to speak and deliver written statements. We added that such basic and fundamental rights currently provided by ECOSOC Resolution 1996/31 had to be transferred to the new Council, as well as the other arrangements and practices observed by the Commission on Human Rights and its subsidiary bodies. The GA resolution should not leave open any possible weakening of the meaningful contributions of NGOs to the work of the Council.

The draft resolution presented by Eliasson on 23rd February clearly states, at operative paragraph 11, that "the participation of and consultation with observers, including (...) NGOs shall be based on arrangements , including ECOSOC Resolution 1996/31, and practices observed by the Commission, while ensuring the most effective contribution of these entities". The GA President had hoped that member states would adopt the resolution, by consensus, before the opening of the current session of the Commission on Human Rights, but since some delegations asked for more time the GA could act upon it only on 15th March. Even though the US asked for a vote, no amendments were proposed and the resolution was adopted with 170 votes in favour, four against[4] and three abstentions[5]. The international human rights community could take a deep breath: the Human Rights Council was born.

NGOs have lobbied hard and managed to have a solid legal basis for participation in the Council, even though we still have to monitor closely the rules and procedures that the Council will adopt. From now on the victims of human rights violations may have a greater chance to be heard.

Geneva, 16 March 2006

[1] In larger freedom, towards development, security and human rights for all, par. 181.

[2] See http://www.ngochr.org/view/index.php?basic_entity=DOCUMENT&list_ids=522

[3] See GA Outcome document, par. 160

[4] The USA, Israel, Marshall islands and Palau

[5] Belarus, Iran and Venezuela.