The Human Rights Council: 5 Years On

By Dr. Bertrand Ramcharan

The United Nations (UN) had a mission to help maintain international peace and security on the foundations of universal respect for human rights and of equitable economic and social progress for all peoples. The United Nations is a political body and the nature, composition and quality of governance of its membership has influenced its performance in all three areas ever since its establishment in 1945.

In the human rights sphere, the Commission on Human Rights, an organ expressly provided for in Article 68 of the Charter and its successor the Human Rights Council, have throughout been buffeted by harsh political winds. When the Commission decided in 1947, with the concurrence of the great powers, that it lacked competence to deal with the thousands of petitions flowing in to it, the then Assistant Secretary-General in charge of human rights, Henri Laugier of France, described its decision as disgraceful.

Notwithstanding its essentially political nature, the Commission helped draft numerous human rights declarations and conventions (including the Universal Declaration, the two International Covenants, and many other such instruments), arranged for landmark global studies to analyse human rights problems, undertook from 1967 onwards an open debate on human rights violations in any part of the world, and established a system of human rights investigators and analysts collectively known as the special procedures whose work represented a veritable annual world report on human rights.

In 2006 the Human Rights Council took over from the Human Rights Commission as an organ reporting directly to the UN General Assembly. Whereas the former Commission met once a year and occasionally in special sessions, the Council meets in three regular sessions annually and in special sessions when a third of its membership requests this (eighteen special sessions held thus far). The basic aim in establishing the Council was that it should provide stronger protection of human rights globally. Has the Council succeeded in the aim of providing stronger protection worldwide? There are different views on this.

Setting new human rights standards is foundation work for the global protection of human rights. Here the Council has been quite successful, continuing the work of its predecessor in preparing several instruments that have been formally adopted by the General Assembly. The record here is one of continuity.

Analysing human rights problems and arranging for fact-finding into gross violations of human rights have historically been of great utility. The Council has taken forward the work of the special procedures of its predecessor and has even established new thematic procedures. However, the wind has been blowing against the designation of country investigators; this is contested terrain inside the Council. The resilience and imagination of special procedures mandate holders accounts more for the value rendered by the system of special procedures than the receptivity of members of the Council. The record, here also, is one of continuity.

The processing of petitions alleging gross violations of human rights has been a vexed and vexing issue for the human rights movement ever since the establishment of the UN. A confidential procedure was only established in 1970 and the first country 'situations' of alleged gross violations reached the Commission in 1975. The Council has carried forward a 'Complaints Procedure', based on the procedure operated by its predecessor. Several situations reached the Commission for its attention each year and some eighty country situations were subjected to in-depth scrutiny in the Commission between 1975 and 2005. The procedure was not without its imperfections, but it added value. Nowadays, because of the political dynamics, few situations reach the Council and there has so far not been one situation retained by the Council for in-depth examination. Seasoned watchers consider the Complaints Procedure an abject failure in comparison to what was obtained under the Commission. The assessment here is one of continuity and failure.

International cooperation for the strengthening of national protection systems was identified from the outset of the then Commission on Human Rights to be essential to the global protection of human rights. The former Commission on Human Rights was developing cooperation with national human rights institutions and the Council has continued and improved on this, giving more time and space for the participation of representations of national institutions. The assessment here is one of continuity and progress.

The universal periodic review is the flagship procedure of the Human Rights Council. During the first five years of the Council every UN member State has submitted a written report on its efforts to advance human rights nationally. This is complemented by two secretariat reports, one containing the relevant findings of UN human rights treaty bodies and special procedures, and another containing information provided by NGOs. There is a three-hour examination in a Working Group of the whole (the Council with another name). Participating (Peer) Governments make observations, criticisms, and recommendations. The state under review is free to accept or to decline recommendations made by individual governments. NGOs are not allowed to express their views at this stage. A report of the Working Group of the whole is then considered by the Council in formal plenary session, when limited time is afforded to NGOs. At this stage the Government under review explains its views and why it may not accept particular recommendations. The second cycle will focus on the implementation of recommendations made in the first cycle.

There is undoubted potential for good in the Universal Peer Review (UPR) procedure, provided that governments participate and cooperate in good faith. The record here is mixed. Some governments seek to derive value from the process while others have tried to be 'clever'. The recommendations are basically a scatter-shot record of who said what, with little effort at thematic focus. There probably are instances where a Government has strengthened its national protection system as a result of having gone through the process but, for the most part, the results of the UPR process can only be assessed after the second cycle. One could therefore enter an assessment of an innovation on which one must reserve judgment for the time being.

This leads to the Achilles-heel issue of the Council: Is it living up to its protection responsibilities? The Council has been quite active in responding to situations of grave emergencies or armed conflicts (eighteen special sessions so far). It used to be said that the Council was over-concentrated on the Arab territories occupied by Israel and on condemning Israel but its more recent actions on Libya and Syria have probably brought in more balance in its activities. Taken together, the Council's response to situations of emergencies or armed conflicts have included the adoption of resolutions, the dispatch of fact-finding missions, entrusting mandates to the High Commissioner for Human Rights, and offering assistance to Governments disposed to accept. But even in this category of situations of emergency or armed conflict the Council has not been free of controversy. Its response to the situation in Sri Lanka caused deep anguish in the human rights movement. Overall, especially having regard to its actions on Libya (the termination of whose membership on the Council it recommended), and its actions on Syria (on which it has held two special sessions), a fair-minded observer would grant the Council some credit as regards its discharge of its protection responsibilities.

Beyond dire emergencies or armed conflicts, can one say that the Council has been faithful to its protection responsibilities when governments are grossly violating the human rights of their peoples? Here the answer would be a straight 'No'. Unlike in the former Commission, there is no annual debate in which all may participate, especially NGOs, and in which situations of concern may be aired. The Council practices a policy of dialogue and cooperation and the majority of its members prefer a soft approach. Many members of the Council discourage the adoption of 'country resolutions', namely resolutions focusing on the situation in particular countries, and these members also actively discourage and even oppose the appointment of human rights investigators. One can point to many country situations of gross violations of human rights that the Council has chosen not to deal with. For a global human rights body this is indefensible. The political complexion of the United Nations and of the Council cannot excuse this failure to take a principled approach. If there is one UN body from which the world is entitled to expect principled action, it is the Human Right Council. Idealism cannot succumb to politicisation.

To the charge that the Council does not deal with many situations of gross violations of human rights it is sometimes commented that the High Commissioner and the special procedures (investigators) raise numerous situations in their annual reports. This is not an acceptable answer. When special procedures raise such situations in their reports the Council must take action and express its views on the situation. But the Council hardly ever does so. The Council is a body for the protection of human rights. It either protects or it does not. There is no room for prevarication on this issue. An overall assessment would be that the Council does not faithfully discharge the responsibility to protect. It is more a diplomatic than a protection body.

The world is entitled to expect better from the Human Rights Council. It does some good, but should do better.

(Dr. Bertrand Ramcharam is the former Deputy and Acting UN High Commissioner for Human Rights, a former Professor at the Graduate Institute, Geneva, and Chancellor of the University of Guyana.)

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