Created to be the UN’s principal organ for the promotion of human rights, the Human Rights Commission had a prime role in establishing the norms for the protection of human rights and in putting in place the mechanisms for monitoring their implementation.
Nevertheless, because of numerous obstacles due mainly to its intergovernmental, and therefore political, nature, it became more and more strongly criticised, not only by NGOs but by certain States. A reform of the system therefore seemed necessary.
In adopting resolution A/RES/60/251, on 15 March 2006, the UN General Assembly decided by a large majority to replace the Human Rights Commission by the Human Rights Council. The aim is to make the mechanism for protecting human rights more effective, closer to the victims, and to reduce the risks of political manipulation.
The principal differences between the Commission and the Council are as follows :
The Council is directly attached to the UN General Assembly. Its status is therefore higher than that of the Commission which was a functional organ of the UN Economic and Social Council (ECOSOC).
The Council’s mission is periodically to take stock of the human rights situation in every country, (“peer review”) , so that there are no “double standards”.
Forty-seven States are members of the Council. The defunct Commission had fifty-three.
The States with seats on the Council are now elected by absolute majority. Members of the Council are elected according to equitable geographical representation.
The representation of Asia and Africa has been strengthened.
States seeking Council membership are obliged to state publicly their “voluntary commitment” to respect for human rights. In the Commission, the member States did not have to make any particular commitment.
The period of service of member States is three years and is not renewable after two consecutive triennia. After six years, a State must wait at least a year before reapplying.
A two-thirds majority of the UN General Assembly can decide to suspend a member of the Council which has seriously violated human rights.
These differences allow one to hope for a better guarantee of the protection of human rights, but many points remain to be clarified, particularly on the conditions to be fulfilled in order to be elected a member, the upholding of special procedures put in place by the Commission, the participation of NGOs and the “peer review” mechanism.
The election of States.
There were no conditions relating to human rights required in order for a State to be a member of the Commission, whereas States which are candidates for the Council must now make public their “voluntary commitment” to respect for human rights. This demand, however, remains extremely vague and the General Assembly resolution does not fix clear and measurable conditions for guaranteeing human rights in States. It would have been desirable, for example, for States seeking membership of the Council to issue a permanent invitation for visits under the UN “special procedures”, or to commit themselves to ratifying the principal instruments for the protection of human rights. However, the first elections which took place in May 2006 did stimulate ratification of the international conventions for the protection of human rights. Certain States refrained from applying because of this demand, notably Burma, Zimbabwe, Togo, Sudan, Chad, North Korea, Colombia, Belarus and Libya. Likewise, Iran was not elected for the same reason. But certain States on whose territory numerous violations are committed were elected, such as Saudi Arabia, Cuba or the Russian Federation.
Upholding the special procedures.
Although much criticised, the Commission had put in place a system of “special procedures” with the aim of examining and monitoring the human rights situation in a given country or territory (country mandates) or major violations of human rights on a world scale (thematic mandates), and it made public reports. These mechanisms outwith the conventions have the advantage of being exercised by working groups made up of independent experts or by people acting in an individual capacity (special rapporteurs). All these mechanisms have been taken on board by the Council which examined the experts’ reports during its second session with the help of NGOs.
Upholding the participation of civil society.
NGOs with consultative status with the UN were able to be present and to participate in the Commission’s sessions; this right has not been challenged. The procedure for the association of NGOs with the Council has been modified, as they can now take part in the “interactive dialogue” during the examination of the Thematic Mandates. They have the same right as the States to question the rapporteurs during their reports on their work. There has been real progress. However it must not be at the expense of other forms of NGO participation, particularly an association with the mechanism for periodical universal examination. Without it this would become a mechanism totally at the discretion of the States.
The mechanism for periodic universal examination
The purpose of the “peer review” mechanism is periodically to examine the situation in all countries so that no State escapes the watchful attention of the Council. During the Council’s first session in June 2006, an intersession intergovernmental Working Group was charged with working out the details of putting this procedure into practice. It is essential that this mechanism should complement, not duplicate, the other control mechanisms put in place by the Committees overseeing the application of international instruments for the protection of human rights. Under no circumstances should this procedure call into question the earlier achievements already made by the Commission.
Today the Council is still under construction, its methods of functioning are not yet well-defined; we must therefore follow its evolution attentively in order to understand how to use it judiciously and effectively.