John Pace, a Senior Visiting Fellow at the University of New South Wales, Sydney, sheds light on the functioning of the UN Human Rights Council since its inception...
In 2006 as the Human Rights Council was being set up, I wrote an opinion piece on this website in which I shared, among other aspects, my impressions as to how the Council would shape up. Experience thus far produced mixed assessment.
The transition from the Commission to the Council took a couple of years, and in 2008, the Council adopted an Institution-Building package by which it introduced the Universal Periodic Review (UPR) and by and large, adapted the Commission’s special procedures, applying modifications designed to improve their functioning, including a code of conduct for the mandate holders, it adopted a new system for reporting on complaints and it retained the confidential procedures.
The Council adopted a set agenda for its meetings consisting of ten generic items. Within these ten items, the Council takes up a myriad issues, usually spelled out in the annotations to the agenda of the individual session. The Council also set out meticulous details on its methods of work and rules of procedure.
In the thirteen years of its existence, the Council continued the work of its predecessor taking up situations under its special procedures in specific countries, among them Honduras (2009), Guinea (2010), Côte d’Ivoire (2011), Libya (2011), Yemen (2011), South Sudan (2011), Syria (2011), Tajikistan (2011), Mali (2012), Eritrea (2012), Central African Republic (2013), Cameroon (2014) and Ukraine (2014). There are 11 country special procedures currently.
It also established special procedures on thematic issues including, water and sanitation (2008), cultural rights (2009), peaceful assembly and association (2010), discrimination against women in law and in practice (2010), truth, justice, reparation and non-recurrence (2011), transnational corporations and other business enterprises (2011), equitable international order (2011), environment (2012), older persons (2013), persons with disabilities (2014), unilateral coercive measures(2014), persons with albinism (2015), privacy in the digital age (2015), the right to development (2016), sexual orientation and gender identity (2016), and persons affected by leprosy (2017) . There are currently 44 active thematic procedures.
The UPR was launched in 2008. By the end of this year the entire UN membership will have been reviewed twice. The third cycle starts next year. Although the Council has made efforts to keep the procedure pertinent, care needs to be taken not to allow the review to sclerotize into a ceremonial exercise.
Since its establishment, the Council has set up over 20 ad hoc missions (Fact-finding missions, Commissions of Inquiry etc.). These missions examined situations in various countries, including Palestine (2006, 2009, 2010, 2014, 2018), Lebanon (2006), Darfur (2006), Libya (2011, 2015) Côte d’Ivoire (2011), Syria (2011), North Korea (2013), Central African Republic (2013), Sri Lanka (204), Eritrea (2014), Iraq (@014), South Sudan (2015, 2016), Myanmar (2017, 2018) Democratic Republic of Congo (2017, 2018), Yemen (2017), Venezuela (2019).
When the Assembly established the Council, it asked for a review of its ‘work and functioning’ five years after its establishment. At the opening of the Council in 2006, Secretary-General Kofi Annan explained,
For the moment it [was] a subsidiary organ of the Assembly. But within five years the Assembly [was to] review its status. I venture to hope—and I suggest it should be your ambition—that within five years your work will have so clearly established the Human Rights Council’s authority that there would be a general will to amend the Charter, and to elevate it to the status of a Principal Organ of the United Nations.
The will to elevate the Council to a Principal Organ of the UN did not materialize by 2011, as the Secretary-General had hoped. In 2011 the Council put off that decision by another 10 to 15 years. That means that the Council should review its status between this year and 2026.
Clearly, States felt that the hoped-for establishment of “the authority of the Council” had not materialized. In the review of 2011, much of which was conducted behind closed doors, the focus appeared to be more on the nitty-gritty tactical organizational issues and not so much the larger picture of the standing of human rights in the framework of the international system.
The situation in the Council as it embarks on its new review presents a situation not dissimilar from that prevailing in the last years of the Commission where the membership polarized according to geopolitical lines.
The record of the Council has reflected a trend where States have tended to monopolize their work, to the exclusion of the wider human rights community, notably, human rights non-governmental organizations. A kind of ‘stockade’ culture, defensively guarding all procedures from external influence. For example, NGOs do not have a meaningful role in the UPR.
As I had occasion to share in 2006, in addressing the future of the Council,
In all likelihood, nothing much will change, at least in the immediate future. Why? Because the parties that make up the international community themselves, have not or will not change. In particular, the attitude that human rights is “something that goes wrong somewhere else”, and conversely, that human rights are proscribed by historical, traditional religious values — the old “cultural relativism” argument, still characterize the membership. The change to a Council is not the result of any detectable change in these attitudes.
By and large, however, the Council has not shied away from addressing situations as they came up, and that gives cause for hope for more positive developments in the coming years.
For this to happen, the challenges that have emerged in the Council need to be addressed. These are:
– the achievement of true universality, repeatedly affirmed since the 1993 World Conference, in its membership and in its priorities;
– the participation and input of civil society—also to reflect the principle of universality—in the work of the Council;
– the strengthening of the treaty system, by ensuring consistency between the jurisprudence of the treaty system and the approaches of the Council in addressing the issues on its agenda;
– the strengthening of the interaction with the Security Council, especially in addressing the causes and effects of confrontation and conflict.
My recently published book, The United Nations Commission on Human Rights, proposes the establishment of a Permanent Council for Human Rights:
as a Principal Organ—a proposal authoritatively recommended by the High-level Panel on Threats, Challenges and Change in 2004. The new Council as a Principal Organ would benefit from two auxiliary bodies: a Chamber on Norms and Standards made up of the Human Rights Committee and the Committee on Economic Social and Cultural Rights, whose task would be to define issues and priorities relating to standards. These issues and priorities would be identified in consultation with a Standards Advisory Group, consisting of a plenary of all other treaty bodies. It would mean strengthening the new Council through the infusion of the jurisprudence of the treaty system into its culture and practice in handling the challenges before it. In parallel, the new Council would benefit from a second Chamber for Civil Society, on the lines of a permanent forum, liaising with sub-fora in the regions, to ensure input of the real issues affecting people and the concerns of civil society into the deliberations of the Human Rights Council. The vital contribution of civil society in the World Conference in 1992–1993, through its role in the regional preparatory meetings and the Conference itself, demonstrated the importance of amplifying the space for civil society, in the regions as well as at the Council sessions. This would enhance universality, relevance and timeliness of the work of the Council…
The priority aims to put an end to the current limit of membership to 47 members. Not only is this limitation meaningless, but it is also contrary to universality, and a distraction from the real need to have a truly universal forum where all States are equally accountable. The arrangement creates friction and the crystallization of groups. It alienates the focus from the true priority to be given to human rights efforts to strengthen the protection of human rights everywhere.
John Pace is the author of a major work entitled “The Commission on Human Rights of the United Nations, ‘a Very Great Enterprise’“(OUP 2020). The book provides a complete account of the work in human rights by the Commission on Human Rights and its successor, the Human Rights Council, both in substance and in time. John is a Senior Visiting Fellow at the University of New South Wales, Sydney where he is also Board Member of the Diplomacy Training Programme. Among other duties, John served in several countries, and as Secretary to the United Nations Commission on Human Rights for sixteen years; in 1991-1993 he was the Coordinator of the World Conference on Human Rights, held in Vienna in June 1993.
Suggested citation: John Pace, The UN Human Rights Council at Cross-Roads, JURIST – Professional Commentary, March 18, 2021, https://www.jurist.org/commentary/2021/03/john-pace-un-human-rights-council-at-crossroads/.
This article was prepared for publication by Akshita Tiwary, a JURIST staff editor. Please direct any questions or comments to her at email@example.com
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