United Nation Mechanism for Human Rights

- Shaikh Md Mujahid Ul Islam

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Published On - November 7, 2016 [Vol. 5, Jul - Dec, 2016]

Introduction  

Human Rights Council(HRC), was established in 2006 by United Nation General Assembly with an object of strengthening the International HR mechanism to promote and protect HR and to deal with International HR Offender, addressing the shortcoming and failure of its predecessor United Nations Commissions on Human Rights(UNCHR).[1] There was a long discussion at that period evaluating the past experiences of the work of UNCHR and the inefficiency of it to deal with Human rights and following that some proposals were made for the reforms in the functions and structure in UNCHR and some proposals(like the report of General Secretary High-level Panel in December 2004 and then from his ‘In Larger Freedom: Towards Development, Security and HR for All’ (Larger Freedom) report of March 2005) were made to establish a new organisation like Human Rights Council replacing the UNCHR . Finally proposal for establishing HRC in place of UNCHR was adopted , but this did not follow all the proposals for making some substantial changes made by those reports. The numerous criticisms are surrounded by the arguments that the changes made by that replacement were more procedural than pragmatic and substantial, there being nothing new in it than the previous UNCHR; thus putting old wine in a new bottle. Now After 6 years of launching of HRC, it is time to see whether HRC is doing its function efficiently than the previous UNCHR or does it still retain its predecessor’s position and faces same image crisis. To answer that in this essay I try to evaluate the function of HRC since its establishment in 2006 In comparison with the function of UNCHR to show that whether it retains the previous position or any new thing comes through it.   With that end in view I divide this essay in two part. In part 1 I will discuss structural changes leading to functional changes and in part 2 discussion goes on functional changes through different mechanism and its impact.

Part 1

1.1 Structural changes

The change in the number of members in previous UNCHR was very common as its past members expanded from 1947 to 2006 on the basis of geographical representation.[2] The former Secretary General   in 2005 advocated for the change of the size of the HRC to 15 members   which will be more accountable and more specific for ensuring accountability .On the other hand, the Report of High level panel in December 2004 recommended   for the body of universal membership basing on the argument that all members by UN charter are committed to protect and promote HR which might focus back on the substantial issues of HR Concern than to debate or vote.[3] Lastly on the general assembly resolution the HRC was formed of 47 representatives on the argument of geographical representation, avoiding the concept of universal membership or small group membership[4].

1.2 Impact of this change

During this 5 year life time of HRC it seems there was no impact of this change of number of membership on the activities of HRC.   This number of 47 members is based on geographical representation, which ultimately gives fate of HRC like the previous UNCHR. Geographical allotment is considered eliminating the criteria of meaningful competitiveness and Comparative scrutiny for becoming candidates[5]. As a result the accused countries of Human Rights violation still become candidates and become elected as members in this 47 members body like Saudi Arabia , Egypt, Cuba. Major criticism of the UNCHR was the country with poor human rights record became the members of it . Now this is apparent that the same criticism is still running and under the new system human rights violators have become the representative of the committee which ultimately hits the organizational accountability and credibility. So, we can say that nothing new comes by this changes which contributes to the image crisis of this organization.

1.3 Election of membership criteria

Through the resolution in 2006 election criteria of members has been set up. And accordingly the members of HRC shall be elected by direct or indirect majority vote of the members of the GA(it requires 96 votes) instead of two third majority of votes. And for becoming eligible to be a member, the states will have to have a good human rights record, full co operation with the council, contribution of candidates to protection and promotion of human rights and their Human rights conduct will be reviewed by the Council’s Universal periodic review mechanism[6]. This is likely more strict and elaborate criteria than the previous criteria of becoming member in Commission. But the success of this new criteria depends whether it abstains the violator of human rights from becoming elected in the body.

In the first election this can be said to be a success of HRC in comparison with UNCHR as no member of allegation of gross violation did not contest in election[7]. But subsequently the picture has been changed and some countries of gross human rights violation have become the members of the council . We can recall the memory of criticism of UNCHR for the membership of Sudan; accused of gross violation of Human Rights in DARFUR who was member of the Commission till 2005[8].UNCHR was also criticised for the chairpersonship of LIBYA in the commission. Unfortunately the HRC is being criticised in the same way for election of its membership. In the council Egypt has been elected as the member [9] though it has a great record of allegation for violation of human rights through torturing the political opponents by the state mechanism.[10] Moreover the membership of Azerbaijan, China, Cuba, Russia, and Saudi Arabia in HRC has been highly criticised. Steve Crawshaw, UN advocacy director at Human Rights Watch said that these 5 countries were the Human Rights violators in 2006 and are still doing the same to this today , in spite of their different promises .[11] During this continuous ineffectiveness regarding election of members, one example can be given of responsible attitude of General Assembly to suspend Libya from the HRC for its violation [12]. But one single example is not sufficient to draw a positive conclusion. So, on perusal of our discussion we can say that the last 5 years’ record of election of members has proven that this was in the same loop like the previous one in respect of selection criteria of members.

1.4 Changes of meeting time

The GA Resolution changed the time of meeting of HRC, that it shall meet regularly throughout the year and schedule no fewer than three sessions per year, including a main session, for a total duration of no less than ten weeks, and shall be able to hold special sessions, when needed, at the request of a member of the Council with the support of one-third of the membership of the Council[13]. The changing of meeting time was done so that the committee can address the human rights situation regularly by taking resolution in the session and the success of it depends on the pressing human rights issues.

1.5 Impact of this change

During the initial 2 years of the change there was no considerable impact in their work in comparison with UNCHR as it is failed to address the important Human Rights issues in their resolution. This was pointed as showing one eyed attitude like the previous one and 27 resolutions were taken during the 4 sessions condemning Israel. Other Issues of Human Rights was not focused so much on those sessions. In 2nd session they condemned another country Burma for its long term activities[14]. Breet Scafer said that in the first 4 regular Session and 4 special session the Council failed to draw attention to the on going violation of human rights in Belarous , china , Cuba ,Zimbabua and in many other countries[15]. However this will be unjust to judge the success of HRC only for the disproportionate attitude towards Israel . The regular sessions of their meeting also addressed some burning issues and this was also welcomed by International Community. In its next session (19th session) analysis was done on the report of every state over important issues like issues of Libya, Burma , Human rights situation of Iran and many other issues[16]. In the last session (18th session) the report discussed about human rights issues (right to safe drinking water, prevention of matrimonial death and others) and other particular recommendations were addressed and decisions were taken. Lastly through this analysis we can say that the addressing of burning human rights issues through regular session can relieve the HRC from the criticism of one eyed attitude and  shows significant success in comparison with UNCHR.

Part 2

2.1 Universal periodic review

The Universal periodic review is a great innovation of the HRC and the GA decided that the council shall undertake the universal periodic review to ensure universality of coverage [17] and in the council’s fifth session it adopted more elaborate provision to set up review mechanism .[18] There is no resemblance with the periodic reporting system of Commission taken in 1956.[19] The previous one had no authority to criticise the countries but this review committee was given the authority to do that and it performed accordingly. During the last 5 year of council almost every state admits this review mechanism as an effective mechanism to ensure monitoring on an equal and vulnerable basis and admits that the success of this mechanism depends on the member state.[20] During the 12 session of review from 2008 to 2011 the above 150 countries have produced their report ;even the countries like Iran, Zimbabwe, Srilanka[21] and during the regular session HRC evaluates those report of government in comparison with the report of NGOS and make recommendation.[22] It is said that the effectiveness of this remains to be seen on the review of big players like USA, CHINA.I think that this mechanism is doing it successfully to bring these countries within the ambit. USA also submitted their report where they assured their commitment not only on Civil and political rights, but also on Economic, social and cultural rights(education, health and housing).[23] In case of UK , this country admitted the recommendation made by council and in 13th session for Universal periodic report they responded according to the recommendation, starting significant changes in overcrowded prison, child rights and others.[24] But still there are some criticism on its functions. Paula Schriefer, director of advocacy at Freedom House, a U.S.-based non-profit research institute said that the countries with poor human rights record can easily ignore the recommendation. But I don’t agree to assess its success on this method , because this mechanism was framed not as a judicial mechanism to make the countries bound by this review. Its success and effectiveness lies on its notion of assessing the human rights situation on all the countries. Finally, on perusal of the review system this can be said that in comparison with UNCHR , the function of HRC through UPR shows its success as a universal supervisory mechanism which can generate more accountability among states.

2.2 Special Procedure Mechanism(SPM)

The commission previously set up SPM which examines, monitors and publishes report on the human rights situation of specific country[25] or any particular Human Rights Issue[26]. Subsequently HRC succeeded this mechanism with the direction from GA to review the mechanism where necessary.[27] The council during this 6 years established 5 new thematic mandate and extended other 28 mandates established by Commission (currently 33 thematic mandates and 8 country mandates)[28]. However, after long discussion regarding appointment of mandate holder it was decided that development would come via that the exclusion of individuals from the body who have decision making power in the government and the selection of mandate holder will be finalized by council.[29] Subsequently the code of conduct has been established which emphasized on the independence, neutrality , uninfluential character from the stack holder.[30] However after this changes of mechanism the HRC started its journey and its functions have been described in the following:

1. Most SP receive information on allegation of specific violation of human rights and send urgent appeal or letter of allegation to the government for clarification. In 2010 604 communication was made to the government of 110 countries.[31] I think this creates an implied obligation or pressure on the state about that particular issue.

2. SP mandate Holders do country visits in national level to see the human rights situation and this is done by them when the country accepts their request of visit. However many countries have issued extended invitation so that the mandate holders have the authority to visit the country any time and till September 2011, 89 countries have issued standing invitation. [32]This actually reflects the countries confidence and commitment of their standard of human rights. One of the major criticism of the commission is that they only focused on the Human Rights Situation of the developing countries. But during the course of time of council it extended to the situation on Developed powerful Countries. For example, according to report in 2009,   Special rapporteurs visited USA, UK, Australia, Italy . In USA Special Rapporteur on extrajudicial, summary or arbitrary executions and Special rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance visited USA in 2008. Recommendations were given for ensuring due process in death penalty cases , publishing report and investigation on the death in immigration detention, tracking and responding to killing by law enforcement officials , enhancing military justice transparency and others.[33] So, in comparison with Commission, the council’s success lie on taking the powerful developed countries within the ambit of monitoring which creates more confidence of the developing counties, reflected by the standing invitation of 89 countries for visit.

3. In comparison with Commission all thematic mandates were extended and new thematic mandates were established namely on contemporary forms of slavery (2007), on access to safe drinking water and sanitation (2008), on cultural rights (2009), on the rights to freedom of peaceful assembly and of association (2010) which extended the council’s focus on these particular Human rights issues. This is a good point of argument that if the commission would apply it that would broaden its horizons compared to its previous record. But my point to determine is that whether it will be successful in its application or not.

4. Moreover the report of 19th session shows the response of the alleged Human Rights Violating countries like Myanmar (releasing a political prisoner after 21 years), Republic of Korea (government withdrew appeal against an innocent person ), Syria( development in health sector), and response of China in development concerning right to food, Brazil regarding cultural right are appreciable according to the recommendation of special rapporteur [34] which shows success of HRC in comparison with UNCHR.

5. Finally we point out the success of it triggering the burning issue. Very recently about the political repression in Syria, the special procedure in 18th session of HRC it condemned this widespread, gross , systematic human rights violation by 37 to 4 vote and to stop this .[35] Human Rights Watch welcomed that step of Council and proposed for suspension of Syria from two committee of ECOSOC.[36] In response of that 26 nations including USA, UK backed to spell Syria from the committee.[37] Moreover in case of chaotic situation in Libya an Independent Commission for Inquiry was established by council and it orally addressed violence in Libya in 18th session,with final report presented on march 2012. Then for the commitment of Libyan transitional government council unanimously recommended to GA to restore the membership of Libya in council. So, from these examples we can find the council’s vigilance on all the triggering issues of violence all over the world which again reflects the neutrality of the council in comparison with its predecessor.

2.3 New Complaint Procedure

The new complaint procedure of Council was the successor of the complaint procedure of commission established by ECOSOC R/N 1503 in 1970 and previously adopted another by resolution no 1235. Former procedure was not designed to protect individual or to act as mechanism of repression of victim. That mechanism is non accusatorial, confidential and non advertorial in deliberation.[38] So, the outcome of it becomes more political than human rights concern and the communication to Argentina during military regime in 1980 and deliberation to government of Fujimori in 1998 reflects this political biasness.[39] Moreover during 1974 to 1998 out of communication to 78 countries, measures were taken by only a small group of countries.[40] By R/N 5/1 the new Complaint procedure mechanism was established to address consistent pattern of gross and reliably attested violation of human rights as well as breach of fundamental freedom in any part of the world. It started its function by two working groups namely working group on communication and working group on situation.[41] However through the filtering process by these two working group the complain made by individual is referred to council and council then decides either to keep it under review or ask the state for more information or to send special rapporteur to observe the situation and report back to council.[42] Receiving the reply from government expert, it may order for inquiry or recommendation.   Criticism remain  that this retains the same position of non accusatory, confidential and non adversarial like UNCHR. But if we look at the outcome of the procedure , the success rate is more than the previous one set out by 1503 procedure. However, to examine the evaluation of this individual complain proceeding. For example from 16 November 2009 to 17 November 2010, the Working Group on arbitration transmitted 102 urgent appeals to 56 Governments concerning 844 individuals (2,774 men, 50 women, 2 boys). Governments and sources reported that 23 persons were released. [43] Moreover, the working group on forced disappearance transmitted 105 individual cases from 22 countries and most countries responded to that communication.[44] So, lastly we can say that in comparison with UNCHR the complaint procedure of HRC is successful and during last 6 years no gross allegation arose regarding political biasness.

Conclusion

With all the discussion I have tried to prove that the changing of number of members and election criteria of members make less contribution to this organisation to differentiate it from UNCHR. Whereas the functions through changing of meeting time and functions of UPR, SP mechanism, Individual Complain mechanism of the last 6 year reflect the success of this organisation to establish more accountability, keeping neutrality, free from political biasness in comparison with UNHRC which was previously affected for lack of those criteria. So this will be unjust and unfair to evaluate this organisation as this is the old wine in a new bottle. But it is true that this is too ambitious for such an organization to keep its non-political image of neutrality in a world of international political polarization of states, with states being the main actors having own agendas as well as positions involving conflict of interest. So the future success of it depends on the commitment of states to human rights to keep this forum as a place of accountability to examine its commitment.

[1] see http://www.un.org/News/Press/docs/2006/ga10449.doc.htm see also general assembly resolution no 60/251 in 15th march 2006

[2] 18 in 1946, to 21 in 1962, 32 in 1967, 43 in 1980 and 53 in 1992.

[3] GA Rep 59/565, High-level Panel on Threats, Challenges and Change addressed the Secretary-General, 2 Dec 2004, para 3.

[4] See supra note 2

[5] http://www.hrw.org/news/2010/02/16/egypt-pledge-serious-human-rights-reform

[6] See supra no 2

[7] First Election held in new York in 9th may 2006

[8] see www.un.org/News/dh/infocus/sudan/fact_sheet.pdf

[9] Election of Egypt in 17th may 2007 in 61th session of GA, seewww.un.org/ga/61/elect/hrc

[10] See supra note 10.

[11] http://www.hrw.org/news/2009/04/21/un-elect-rights-respecting-states-human-rights-council

[12] Sixty-fifth General Assemblyseehttp://www.un.org/News/Press/docs/2011/ga11050.doc.ht

[13] See supra note 2

[14] See news of Human Rights watch over anty Israel Resolution at HRC see http://www.unwatch.org/site/c.bdKKISNqEmG/b.3820041/

[15] The United Nations Human Rights Council: A Disastrous First Year by Brett Schaefer, in june 1, 2007

[16] 19th regular session of HRC which will be held in Geneva in 27th february in 2012

[17] See supra note 2

[18] Human Rights Council resolution 5/1 of 18 June 2007.

[19] , see Commission on Human Rights resolution I of 1956;

Economic and Social Council resolutions 624 B (XXII) of 1 August 1956,

[20] Visit http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10370&LangID=E

[21] http://www.ohchr.org/EN/HRBodies/UPR/Documents/uprlist.pdf

[22] Visit http://www2.ohchr.org/english/bodies/hrcouncil/

[23] http://www.state.gov/documents/organization/146379.pdf

[24] http://lib.ohchr.org/HRBodies/UPR/Documents/Session1/GB/UKmid_term_report2010.pdf

[25] Referred as country mandate

[26] Referred as thematic mandate

[27] Para 5 of general Assembly resolution 60/251

[28] See official website of HRC http://www2.ohchr.org/english/bodies/chr/special/index.htm

[29] By Meghna Abraham Building the New Human Rights Council published in august 2007 by Geneva office of the Friedrich-Ebert-Stiftung

[30] A/HRC/5/L.3/Rev. 1, (18 June 2007).Art. 1. Art. 3 (a)

[31] http://www2.ohchr.org/english/bodies/chr/special/index.htm

[32] ibid

[33] http://www2.ohchr.org/english/bodies/chr/special/docs/2009Compilation.pdf page 171

[34] Visit http://www2.ohchr.org/english/bodies/chr/special/docs/NineteenthIssueOctober-December2010.pdf

[35]Availablehttp://www2.ohchr.org/english/bodies/hrcouncil/docs/specialsession/SpecialProcedures_MsFaridaShaheed.pdf

[36] http://www.unwatch.org/cms.asp?id=2750557&campaign_id=65378

[37] http://www.unwatch.org/site/c.bdKKISNqEmG/b.1289203/apps/s/content.asp?ct=11605851

[38] Para. 4(b) of Sub-Commission Resolution 1 (XXIV)

[39] http://icj.org/download/database/complaint_final_paper.pdf

[40] Id

[41] Available onhttp://www2.ohchr.org/english/bodies/chr/complaints.htm

[42] Visit http://vivatinternational.org/resources/hr-complaints-procedure/

[43] 16th session human rights council agenda no 3

[44] http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/104/45/PDF/G1110445.pdf?OpenElement

About The Writer

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Shaikh Md Mujahid Ul Islam

Additional Chief Judicial Magistrate

Shariatpur

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