Asian Centre for Human Rights

Dedicated to promotion and protection of human rights in Asia

ACHR REVIEW
[The weekly commentary and analysis of the Asian Centre for Human Rights (ACHR) on human rights and governance issues]

Embargoed for 22 June 2005
Review: /78/05
Kicking the CHR upstairs?
Secretary Kofi Annan
In Search of Legacy?

On 23 June 2005, Asian Centre for Human Rights will release its report, “Human Rights Council: Illusions, Realities and Kofi Annan’s search for legacy”. The report containing analysis of Secretary General’s report In Larger Freedom of 21 March 2005 and its Explanatory Note of 23 May 2005, the OHCHR's Plan of Action: Protection and Empowerment of May 2005 and the Draft Outcome Document (DOD) of 3 June 2005 of the President of the General Assembly, makes specific recommendations on the proposed Human Rights Council and reform of the Treaty Bodies.

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:

-          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;

-          Refer situations of crises to the Security Council;

-          Advise the Security Council regarding human rights component of UN Peace Keeping and Peace Building missions;

-          Refer situations of crises or patterns of abuses to the International Criminal Court or any other international criminal tribunals;

-          Request International Court of Justice for advisory opinions on legal issues pertaining to human rights; and

-          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:

-          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:

-          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

-          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;

-          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:

- 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

-          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:

-          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;

-          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;

-          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

-          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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