a handbook on issues of transition from the commission on human rights to the human rights council

7/30/2019 A handbook on issues of transition from the Commission on Human Rights to the Human Rights Council

1/117

A new chapter

for human rights

A handbook on issues of transitionfrom the Commission on Human Rightsto the Human Rights Council

ternational

ervice for

uman Rigths


2/117


3/117

A new chapterfor human rights

A handbook on issues o transitionrom the Commission on Human Rightsto the Human Rights Council


4/117

International Service or

Human Rights

1, Rue de Varemb111 Geneva, Switzerland

Ph: +41 733 513Fax: +41 733 086

[email protected]

Friedrich Ebert Stitung

6 bis, Chemin du Point-du-Jour10 Geneva, Switzerland

Ph: +41 733 3450Fax: +41 733 3545

[email protected]

AuthorMeghna Abraham

EditorElonore Dziurzynski

Research AssistanceCorey BarrNicholas CalacourasPauline EgretEleni KartsonakiAsger KjaerumRina Komaria andCla Thouin

Project CommitteeMeghna AbrahamElonore DziurzynskiAlison GrahamChris Sidoti andKatrine Thomasen

Layout and DesignEva Rittmeyer

PrintingMdecine & Hygine, GenveRgis Chamberlin

Copyright 006 International Service or Human Rights and Friedrich Ebert Stitung

Material from this publication may be reproduced for training, teaching or othernon-commercial purposes as long as ISHR and FES are fully acknowledgedNo part of this publication may be reproduced for any commercial purpose withoutthe prior express permission of the copyright holders.The views expressed in this publication are not necessarily those of the

Friedrich-Ebert-Stiftung.

June 006 isbn 3-8989-51-9


5/117

Acknowledgements

In addition to those who worked directly on this project, ISHR would liketo thank Inmaculada Barcia, Elizabeth Bowman, Claire Callejon, ChristopheGravend, Michelle Evans, Mariette Grange, Felix Kirchmeier, Andrea Rocca,Patrizia Scannella, and Peter Splinter or their comments on some o the dratchapters. Wed also like to acknowledge the invaluable contribution o ISHRinterns who assisted with the research or this publication and thank ISHRsta or their input.

International Service or Human Rights (ISHR)

ISHR is primarily a servicing organisation that promotes the development,strengthening, eective use and implementation o international and regionallaw and mechanisms or the protection and promotion o human rights. Estab-lished in 1984 by members o a variety o NGOs in Geneva, ISHR has beenproviding analytical reports on the UN human rights mechanisms; trainingon how to use the international norms and procedures; strategic advice oreective lobbying; contributions to standard-setting; practical inormation andlogistical support to enable human rights deenders rom around the world totake ull advantage o international human rights law and procedures. For

urther inormation on ISHR visit www.ishr.ch.

Friedrich-Ebert-Stitung (FES)

Established in 195, the Friedrich-Ebert-Stitung is the oldest German politicaloundation and a private non-prot institution committed to the principles osocial democracy. There are about 100 FES oces worldwide, the integratedwork o which contributes to the achievement o the overall mission o theoundation. Human Rights are a central component o what the Friedrich-

Ebert-Stitung stands or.Since 00 the FES oce in Geneva in cooperation with the oces inBerlin and New York is part o the Democratic and Social Structuring of Globali-zationprogram, which assists partners in developing countries to ace the chal-lenges o globalization. The main activities are conerences, seminars, workshopsand dialogue sessions, training and inormation programs with international par-ticipation, studies, consultancy reports and publications. The main ocus o theFES oce in Geneva lies on the areas o economic and social aspects o globali-zation and the promotion o human rights. For urther inormation on FES visitwww.es-geneva.org and www.es-globalization.org.

3


6/117

4 A new chapter for human rights


7/117

Table of contents

Chapter 1

Introduction 9

Chapter 2Agenda and Rules of Procedure 17

Chapter 3

Special Procedures 3

Chapter 4

Sub-Commission and

System of Expert Advice 51Chapter 5

Complaint Procedure 61

Chapter 6

Universal Periodic Review 7

Chapter 7

Participation of NGOs and NHRIs 87

Chapter 8

Pending Standard-Setting 104

Chapter 9

Issues 111

5


8/117



9/117

A new chapter for human rights

Foreword

Ater 60 years the Commission on Human Rights is no more. There is a newinternational mechanism or the promotion and protection o human rights,the Human Rights Council (the Council).

For exactly 60 years, since 1946, the Commission on Human Rights(the Commission) was the principal human rights body within the UnitedNations system. It produced the enormous body o international humanrights law and standards that now governs the conduct o States. It developeda system o independent experts to assist in the development o humanrights norms and law and to advise, monitor, investigate, report, and makerecommendations on the perormance by States and others in terms o their

implementation o human rights. It supported the important roles o humanrights deenders and advocates in the work o promoting ull respect or humanrights. In the end, however, international politics and the competing interestso States undermined it and marginalised it. Nonetheless its achievementsprovide the basis on which its successor, the Human Rights Council, is beingdeveloped.

Under the Resolution passed almost unanimously by the UnitedNations General Assembly on 15 March 006, the Commission was abolishedon 16 June and three days later, on 19 June, the Council began its work. TheResolution recognises the achievements o the Commission, its mandates,

mechanisms, unctions and responsibilities, and carries them orward to thenew Council. It also sets an ambitious program o work or the Councils rstyear, including:

reviewing and maintaining a system o special procedures;reviewing, improving, and rationalising the existing mandates andmechanisms;establishing and implementing a new system o universal periodic review towhich all States will be subjected;developing its program o work, its schedule o meetings, agenda, rules oprocedure, and working methods; and

7


10/117


continuing the important work o protecting and promoting human rights,especially where those rights are being violated or at risk.

All those committed to the promotion o human rights have a role toplay in this decisive rst year. While the 47 member States o the new Councilwill be the ultimate decision-makers, other States, international organisations,non-governmental organisations and national human rights institutions areessential participants too. Human rights victims and deenders in particularhave experiences, knowledge, expertise, and perspectives that must becontributed to the Council and taken into account in the Councils work.

This handbook has been produced to support all those wantingto participate in the new Council. It is intended primarily or human rightsdeenders and advocates but will no doubt be o assistance to representativeso States and international ocials too. It looks at what the Commission haspassed on to the Council, what the Council needs to consider and do duringits rst year, and what choices lie beore it. It also reviews the Commission interms o its achievements and shortcomings with the aim o stimulating ideasand debate. We hope that the questions raised in each chapter will help exploreopportunities and open up options so that the best possible approaches areadopted or the Councils work.

We present this handbook at a crucial time o transition to assisthuman rights deenders and advocates and others to play eective roles inshaping and dening the new Human Rights Council. We hope that it couldalso support and encourage representatives o States in their eorts to developa strong and eective Human Rights Council.

Dr. Erried Adam Chris SidotiDirector DirectorGeneva Oce International ServiceFriedrich-Ebert-Stitung or Human Rights


11/117

1 Introduction


12/117


1Introduction

What was the Commission onHuman Rights?

The Commission on Human Rights (the Commission) was the main bodyset up to address human rights issues in the United Nations (UN) system 1.The Commission was a subsidiary body o the Economic and Social Council(ECOSOC), made up o 53 States elected or three-year terms by ECOSOC witha balance o representation rom the UNs ve regional groups 2. The majorroles o the Commission were standard-setting in the eld o human rightsand monitoring o compliance with human rights standards. The Commis-sion was also the main orum or non-governmental organisations (NGOs) toraise human rights concerns with States and to lobby or the creation o new

standards or action on situations in countries. NGOs accredited by ECOSOCcould participate in the Commissions session and make oral and writtenstatements.

The Commission set up various mechanisms, all together calledspecial procedures, that were authorised to examine, monitor, and publiclyreport on the human rights situation in specic countries or on major themeso human rights violations 3. The Commission also had a complaint proce-dure reerred to as the 1503 procedure 4, under which it could receive com-munications about human rights violations occurring in any country. TheSub-Commission on the Promotion and Protection o Human Rights 5 (the Sub-

1 The Commission was a body created under the terms of the United Nations Charter. Its functions did notextend to regulating the work of treaty bodies, which are created under specic human rights treaties,but some mechanisms created by the Commission do have close interaction with treaty bodies.

2 Countries are organised into ve regional groups African; Asian; Western European and Others Group(WEOG); Eastern European; and Group of Latin American and Caribbean (GRULAC). However, thesegroups are not entirely based on geography. For example, the WEOG is comprised of Western EuropeanStates, the United States of America (the USA), Canada, Australia, Israel, and New Zealand.

3 Further information is available in the chapter on special procedures.4 Named after the resolution by which it was created, Economic and Social Council Resolution 1503 of 27

May 1970. Further information is available in the chapter on complaint procedure.5 Further information is available in the chapter on the Sub-Commission and system of expert advice.


13/117

Commission) was a subsidiary body o the Commission and acted as a thinktank by undertaking in-depth research and analysis into particular humanrights issues.

The Commission met annually in Geneva in March and April orsix weeks. This session was attended by members o the Commission, otherStates, NGOs, and National Human Rights Institutions (NHRIs). The Com-missions work was organised under agenda Items, ocusing on specic the-matic areas and a ew dealing with procedural matters related to the Commis-sions unctioning. Over a thousand statements were made at the 61st sessiono the Commission in 005 by States, NGOs, NHRIs, and representatives ointernational organisations. The Commission took action by adopting deci-sions or resolutions and approved hundreds o resolutions related to humanrights every year.

Reform of the Commission onHuman Rights

In the last ew years the Commission increasingly came under criticism orits double standards and selectivity in the treatment o country situations andailure to address severe human rights violations occurring in many countries.The election o States with extremely poor human rights records as members

o the Commission weakened its credibility. Furthermore, its institutional cul-ture, which was characterised by excessive politicisation, regional alliances,and block voting, and the use o procedural devices to prevent debate on pro-posed action against countries and on controversial issues weakened its unc-tioning and ability to react to important human rights situations and ull itsmandate.

These criticisms came to a head in the report o the UN Secretary-Generals High-level Panel on Threats, Challenges and Change 6, and in thereorm proposals put orward by the Secretary-General himsel in his report,In Larger Freedom: towards development, security and human rights for all7.

The Secretary-General identied the declining credibility and lack o proes-sionalism within the Commission as its main deects, and recommendedthe replacement o the Commission by a smaller, standing body a HumanRights Council to be elected by the General Assembly by a two-thirds major-

6 A More Secure World: Our Shared Responsibility, A/59/565, (2 December 2004), p. 74. The High-levelPanel stated that the credibility and professionalism of the Commission had been declining as a result ofStates seeking membership not to advance human rights, but to avoid criticism and to criticise others.It recommended that the Commission should have universal membership.

7 A/59/2005, (21 March 2005), p. 45.

Introduction 11


14/117


ity vote 8. While addressing the Commission at its 61st session the Secretary-General expanded on these proposals and suggested that the Human RightsCouncil (the Council) should be mandated to undertake periodic peer reviewo the ullment by all States o all their human rights obligations. The Secre-tary-General also recommended that the Human Rights Council should at alltimes be able to draw the attention o the international community to massiveand gross human rights violations 9.

At the World Summit, held in September 005, States agreed to theestablishment o a Human Rights Council. Details o the nature and com-position o the Council were deerred to urther discussions at the GeneralAssembly. It took over ve months o negotiations or States to work out thesedetails 10, which were presented by General Assembly President Jan Elias-son in a drat resolution 11 at the end o February 006. The proposal putorward by Mr. Eliasson only took up some o the Secretary-Generals recom-mendations that States agreed with and tried to reach the best compromisepossible between dierent States positions. As the United States o America(USA) still had objections to the suggested compromise text proposed by Mr.Eliasson, it called or a vote when the Resolution was tabled at the GeneralAssembly 12. The General Assembly voted or the adoption o the Resolutioncreating the Council 13 on 15 March 006 by 170 votes in avour, our against(Israel, Marshall Islands, Palau, the USA), and three abstentions (Belarus,Iran, Venezuela) 14.

The Commission on Human Right was supposed to begin its 6ndsession on 13 March 006. The weeks leading up to the session were a periodo uncertainty over whether the Council would be created and i the Commis-

sion would meet, or how long, and what its last session would ocus on. TheCommission was adjourned twice, rst to wait or the General Assemblysdecision on the Council and then ater the Resolution was adopted, to work outits agenda. The Commission ultimately met or a short session o three hourson 7 March 006 and adopted a procedural resolution transerring all thereports that were pending beore it to the Human Rights Council or consider-

8 Further details on these reports and recommendations are available at www.ishr.ch/About%20UN/Reports%20and%20Analysis/UN-Reform/UN-Reform-Contents2.htm.

9 See www.ohchr.org/english/bodies/chr/docs/61chr/sgchr.doc.10 See www.ishr.ch/hrm/UNreform/NewsBulletin/contents.htm for bulletins describing the various nego-

tiations.11 See www.ishr.ch/About%20UN/Reports%20and%20Analysis/UN-Reform/GAPresidentResolutionText-

24Feb.pdf.12 Ambassador John Bolton stated that the USAs objections were based on the failure to retain exclusion-

ary criteria suggested by the USA to keep gross abusers of human rights off the Council such as exclud-ing States against which measures are in effect under Chapter VII of the UN Charterrelated to humanrights abuses or acts of terrorism. See explanation of vote on the Human Rights Council draft resolution,available at: www.state.gov/p/io/rls/rm/63143.htm.

13 General Assembly Resolution 60/251.14 See International Service for Human Rights (ISHR), News Bulletin UN Reform: The Human Rights

Council, (15 March 2006), available at www.ishr.ch/About%20UN/Reports%20and%20Analysis/UN-Re-form/IshrNewsBulletin15March.pdf.


15/117

ation at its rst session in June 15. It did not address any o the urgent mattersthat it had to take action on, such as taking decisions on pending standard-set-ting initiatives 16; considering key documents and reports; listening to reportso special procedure mandates; extending mandates o special procedure thatwere up or renewal; and appointing special procedure mandate holders andSub-Commission members whose terms were expiring. It did not take theopportunity to refect on its achievements and shortcomings in its 60 years ounctioning in order to better inorm the work o the Council.

The Human Rights Council: a new chapter

Under the terms o General Assembly Resolution 60/251, the Human RightsCouncil is a subsidiary body o the General Assembly that will report directlyto the General Assembly instead o ECOSOC. It is composed o 47 memberStates elected in a secret ballot by an absolute majority o the General Assem-bly, taking into account candidates contribution to the promotion and protec-tion o human rights and voluntary pledges and commitments 17, and accord-ing to equitable geographic distribution amongst the ve regional groups 18.Ater serving two consecutive terms, members will not be re-eligible or elec-tion or one year. Any member that commits gross and systematic violationso human rights can be suspended by the General Assembly by a two-thirdsmajority 19. Unlike the Commission that met once a year, the Council will

meet or a minimum o three sessions or a total o no less than ten weeks peryear, with the ability to convene additional sessions at the request o any mem-ber and supported by one third o the membership o the Council 20.

The responsibilities o the Council, as set out in the GeneralAssembly Resolution, are to 21:

Undertake a Universal Periodic Review (UPR), based on objective and reli-able inormation, o the ullment by each State o its human rights obliga-tions and commitments in a manner which ensures universality o coverageand equal treatment with respect to all States;

Address situations o violations o human rights, including gross and sys-tematic violations, and make recommendations;

15 Commission on Human Rights Resolution 2006/1.16 See chapter on pending standard-setting for further details.17 Para 8, General Assembly Resolution 60/251.18 13 States from the African Group, 13 from the Asian Group; six from the Eastern European Group, eight

from GRULAC, and seven from WEOG. For a list of members see www.un.org/ga/60/elect/hrc/.19 Para 8.20 Para 10.21 Paras 2, 3, 5.

Introduction 13


16/117


Contribute, through dialogue and cooperation, towards the preventiono human rights violations and respond promptly to human rightsemergencies;Serve as a orum or dialogue on thematic issues on all human rights;Make recommendations with regard to the promotion and protection ohuman rights;Make recommendations to the General Assembly or the urther develop-ment o international law in the eld o human rights;Work in close cooperation in the eld o human rights with governments,regional organisations, NHRIs, and civil society;Assume the role and responsibilities o the Commission relating to the worko the Oce o the United Nations High Commissioner or Human Rights(OHCHR);Promote universal respect or the protection o all human rights and un-damental reedoms or all, without distinction o any kind and in a air andequal manner;Promote the ull implementation o human rights obligations undertakenby States and ollow-up to the goals and commitments related to the pro-motion and protection o human rights emanating rom United Nationsconerences and summits;Promote human rights education and learning as well as advisory services,technical assistance, and capacity-building, to be provided in consultationwith and with the consent o the States concerned;Promote the eective coordination and the mainstreaming o human rightswithin the UN system.

The Council will assume all the mandates, mechanisms, unctions, andresponsibilities o the Commission and is required to maintain a system ospecial procedures, expert advice, and a complaint procedure. It is expected toreview these mandates, mechanisms, unctions, and responsibilities in orderto improve and, where necessary, rationalise them 22. The arrangements andpractices o the Commission on NGO and NHRI participation are carriedover to the Council, which is expected to ensure their most eective contribu-tion 23. The Council will submit an annual report to the General Assembly,which is also required to review the status o the Council within ve years o

its creation. The Council will meet or the rst time on 19 June 006.The Council represents a new chapter or human rights. The Coun-cil has a number o new eatures, such as longer and more requent meetings,the ability to report directly to the General Assembly, a requirement to periodi-cally review all States instead o a selected ew, and a better election process,that provide greater opportunities or it to be a stronger and more eectivemechanism than the Commission. While there is no doubt that States could

22 Para 6.23 Para 11.


17/117

have strengthened the Council urther in the reorm process, the system thathas been set up holds the promise o being more eective and more crediblei States are willing to make it so. The powers and unctions o the Councilare only a part o the reorm process, the largest determinant o which will bethe willingness o States to change their own culture o unctioning and toempower the Council to act in accordance with its mandate.

The ways that NGOs could potentially use the greater opportunitiesoered by the new system have been illustrated by the extensive campaignsthat were carried out in the lead-up to the Councils rst elections on 9 May006. NGOs were able to lobby States to make public pledges and includeconcrete commitments in their election pledges and to scrutinise and publi-cise the human rights records o States that were standing or election. Even-tually all the candidates made pledges o some orm and some o the coun-tries, whose election to the Commission had weakened their credibility, weredeterred rom standing or election or were deeated.

The Council will be reviewing the various mechanisms o the Com-mission in its rst year o unctioning. This period will be extremely signi-cant or all stakeholders to ensure that the review process is used to strengthenthe system o protection o human rights rather than weaken existing mecha-nisms. This handbook has been developed to acilitate the participation oNGOs and human rights deenders in these processes.

The scope of the handbookThis handbook highlights the major issues o transition rom the Commis-sion to the Council. It briefy describes the old system under the Commission,what the Council needs to consider and do during its rst year, and some othe key issues, existing suggestions, and choices. The handbook also identiesthe main questions around each o these issues to generate more discussionand refection on what NGOs and deenders hope can be achieved through thesystem, what eatures they think would be useul, and better options.

How is the handbook structured?

The handbook is organised around the major issues and activitiesthat the Council will need to undertake:

Review o the agenda and rules o procedure (chapter );Review o the special procedures (chapter 3);Review o the Sub-Commission, and the system o expert advice (chapter 4);Review o the 1503 procedure, and the complaint procedure (chapter 5);

Introduction 15


18/117


Setting up the modalities o the new Universal Periodic Review mechanism(chapter 6);Ensuring the participation o NGOs and NHRIs (chapter 7);Taking action on pending standard-setting (chapter 8).

In chapter 9, we have briefy discussed two important substantive issues thatthe Council needs to address: human rights and sexual orientation and genderidentity, and human rights and business. There are other substantive issuesthat the Council needs to address but these are two illustrative issues that havebeen selected on the basis o our own organisational priorities. They are issuesthat have been raised but not adequately dealt with during the last years o theCommission. The handbook does not discuss the election procedures or theresults o the rst elections to the Human Rights Council.

Where to nd additionalinormation and updates

This publication is based on the extremely limited inormation and documen-tation that was available beore the rst session o the Council. ISHR and FESwill update this inormation by providing links to key reports and documents,as they are produced, on ISHRs website at www.ishr.ch/handbook.

There are a series o annexes with key documents, compilations, andtables o inormation that have been prepared to accompany the handbook.These annexes are available on ISHRs website at www.ishr.ch/handbook and

on a CD-Rom which is distributed along with this handbook or can be madeavailable or organisations and human rights deenders that have dicultydownloading inormation rom the Internet.


19/117

2 Agenda and Rules of Procedure


20/117


2Agenda and Rules of Procedure

What rules of procedure will the HumanRights Council use?

The General Assembly Resolution that created the Human Rights Council(the Council) provided that the Council shall apply the rules o procedureestablished or committees o the General Assembly, as applicable, unlesssubsequently otherwise decided by the Assembly or the Council 1. The Reso-lution also provided requirements or the working methods o the Council:the methods o work o the Council shall be transparent, air and impartialand shall enable genuine dialogue, be results oriented, allow or subsequentollow-up discussions to recommendations and their implementation and alsoallow or substantive interaction with special procedures and mechanisms 2.

In terms o participation o States that are not members o the Council, NGOs,NHRIs and other observers, the Resolution carried over the arrangementsand practices o the Commission on Human Rights (the Commission) to theCouncil, while asking the Council to ensure the most eective contributiono these entities 3.

The Rules o Procedure o the General Assembly that are applicableto committees 4 are quite similar to the Rules o Procedure or the unctionalcommissions o the Economic and Social Council (ECOSOC), which appliedto the work o the Commission in the past, and provide or virtually the samearrangements or discussion o substantive issues and voting. The Rules o

Procedure o the General Assembly however provide or slightly dierent

1 Para 11, General Assembly Resolution 60/251.2 Para 12.3 Para 11, General Assembly Resolution 60/251. Issues concerning the participation of NGOs and NHRIs

are discussed in greater detail in the chapter on NGO and NHRI participation.4 Rules 96 to 133 and Rule 45 and 60 of the Rules of Procedure of the General Assembly apply to commit-

tees. These Rules are available in A/520/Rev. 15 and at: www.ohchr.org/english/bodies/hrcouncil/docs/gaA.520.Rev.15_En.pdf.


21/117

procedures to elect the Bureau, drat the agenda, and regarding the quorum 5or the meeting 6.

The Rules o Procedure o the General Assembly only create a skel-etal ramework or the Councils unctioning, which will need to be feshedout in the working methods and additional rules o procedure adopted by theCouncil. The challenge or the Council will be to ensure that its working meth-ods comply with the requirements set out in the General Assembly Resolu-tion, and to avoid replicating aspects o the institutional culture and workingmethods o the Commission that impaired its unctioning.

What will happen at the rstsession o the Council?

Resolution 60/251 provides that the Council shall meet regularly throughoutthe year and schedule no ewer than three sessions per year, including a mainsession, or a total duration o no less than ten weeks 7 and that the rstmeeting o the Council shall be convened on 19 June 006 8. The Council isexpected to address a number o issues in its rst session in June 006. Theseinclude the tasks set out or the Council in the General Assembly Resolution(setting up the Universal Periodic Review (UPR) and the process or the reviewo the special procedures and other mechanisms that it has assumed rom theCommission), as well as the pending work carried rom the Commissionslast session (pending standard-setting initiatives; outstanding reports and dia-

logues with special procedures; and mandates that were up or renewal)9

.The Council will have to elect its bureau and decide on its methods o workor the rst session, and set up a process or dening its rules o procedureand working methods or uture sessions. The Council will also be expected toaddress substantive human rights issues and critical country situations whileit is attending to these procedural matters. Since the rst session o the Coun-cil will last only or two weeks 10 and the rst ew days may be spent in a

5 The minimum number of members that have to be present in order to begin conducting ofcial busi-

ness or to take decisions.6 The procedure for electing the Bureau and drafting the program of work set out in the Rules of Proce-

dure of the General Assembly are discussed below. The Rules of Procedure for the General Assemblyprovide that the meeting can be opened only when a quarter of the members are present (Rule 108)and that the presence of a majority of members is required to take a decision. Rule 40 of the Rules ofProcedure for the functional commissions of ECOSOC provides that a majority of representatives wouldconstitute a quorum. See annex 2.1 for a table comparing the two sets of rules of procedure and additio-nal Commission practices, available on the CD-Rom and on www.ishr.ch/handbook.

7 Para 10.8 Para 15.9 Please see the chapter on background for additional details.10 The Council will meet from 19 June to 30 June 2006.

Agenda and Rules of Procedure 19


22/117


high-level segment 11, the Council will have to dene an agenda and programo work not only or its rst session but its rst year, indicating how all thesetasks will be distributed throughout the year.

How should the agenda o the Council beorganised and how should it be developed?

The Rules o Procedure o the General Assembly empower the Council toadopt its own priorities and meet as may be necessary to complete the con-sideration o items reerred to it. The Rules also provide that the Councilshould adopt a program o work at the beginning o the session indicating,i possible, a target date or the conclusion o its work, the approximate dateso consideration o items and the number o meetings to be allocated to eachitem 12. The Rules thereore give the Council considerable fexibility to deneits agenda and program o work, without establishing a rigid procedure ordoing so and merely set out a requirement or setting up a clear schedule owork.

Flexible or rigid? Narrow or broad?

The Commission had a airly rigid, infexible, and broad agenda and the mainagenda Items, which were arrived at ater detailed political negotiations 13,

remained virtually unchanged rom 1999 to 006. As the agenda Items werebroad enough to cover a range o sub-issues 14, NGOs and States were able toraise a wide variety o issues o concern in their statements under the dierentItems. The main strengths o the agenda were that it ensured that the Com-mission had to give some time to each o these agenda Items, or human rightsthemes, every year. As the broad agenda was pre-determined, States were notable to exclude these subjects or political or ideological reasons. Its predicta-bility allowed NGOs to plan their participation; its breadth gave diverse NGOsthe platorm to make public statements on a wide range o issues o concern to

11 The rst week of the Commissions annual session was taken up by a high-level segment in whichdignitaries from States and intergovernmental organisations addressed the session. At the informalconsultations organised by Norway, Chile, India, South Africa and Russia on 3 May 2005, various Statesexpressed the need for a high-level segment for the rst session of the Council to highlight its impor-tance, but many also stressed the need for this segment to be shorter and more dynamic.

12 Rule 99, Rules of Procedure of the General Assembly.13 The agenda was adopted under Commission on Human Rights Resolution 1998/84. A copy of the

agenda is available at: http://daccessdds.un.org/doc/UNDOC/GEN/G04/164/11/PDF/G0416411.pdf?OpenElement. See also See J. Bauer, Report on the United Nations Commission on Human RightsFifty Fourth Session, available at: www.hri.ca/uninfo/unchr98/functioning.shtml.

14 The agenda could be divided into procedural agenda Items, agenda Items dealing with specic humanrights themes, and those dealing with the human rights situation in countries.


23/117

them, even i they were restricted to a three-minute time limit. On the down-side however, the lack o prioritisation in the agenda and the multiplicity oissues covered meant that very ew issues were discussed in an in-depth man-ner. As there was a large volume o NGO statements compressed in a shorttime 15, there was no guarantee that the statements were adequately listenedto, discussed, or acted upon. There were limited opportunities or a genuinedialogue between States, special procedures, and NGOs, and there was dupli-cation o concerns and issues between the dierent agenda Items.

The debate under any agenda Item was in many ways disconnectedrom the political decision-making process that was dependent on memberStates tabling a resolution or decision, and negotiations took place in meet-ings or consultations outside o the plenary. The ormal listing o Items on theagenda thereore provided no indication o the real, as opposed to nominal,importance attached to dierent issues 16. The agenda also mushroomed assub-issues were arbitrarily allocated to some agenda Items on the basis oStates making statements or tabling resolutions under that Item or politicalor logistical reasons, rather than the agenda Item that they more logically ellunder 17.

The rigidity o the agenda, combined with the practice o the Com-mission o mainly taking action on country situations under three agendaItems 18, led to the arbitrary classication o issues, and to the excessive politi-cisation o certain agenda Items. It moved the ocus away rom what actionshould be taken to what Item the action was taken under. This has particularlybeen the case or country-specic discussions and resolutions, with Statesblocking attempts to have countries considered under Item 9 o the agenda 19

and only agreeing, i at all, to action under Item 19 o the agenda20

becauseo a perception o lesser stigma attached to the latter. Some States have spoken

15 NGOs made 476 individual statements and 61 joint statements over a six-week period at the 61st ses-sion of the Commission. Statistics relating to the 61st session of the Commission on Human Rights, E/CN.4/2006/8, (17 January 2006), p. 5.

16 P. Alston, The Commission on Human Rights, in P. Alston (ed.), The United Nations and Human Rights,(Clarendon Press, 1995), p. 196.

17 For instance, the special procedure mandate on human rights and counter-terrorism was created un-der Item 17, promotion and protection of human rights, rather than Item 11, civil and political rights.Similarly, the Commission took action on some country situations, e.g. Colombia and the Sudan underItem 3, organisation of the work of the Commission rather than Item 9, human rights in any part of the

world.18 Item 3, organisation of the work of the Commission; Item 9, human rights in any part of the world; and

Item 19, advisory services and technical cooperation in the eld of human rights. In addition there wasa specic agenda Item focused on human rights violations in the Occupied Arab Territories, includingPalestine, and country-specic resolutions were also adopted under this Item. In addition to resolutions,the Commission also began to adopt statements by the Chairman, addressing situations of concern,under Item 3 from 1991 onwards. An example of this is the Chairmans statement on Colombia underwhich OHCHR was requested to set up an ofce in Colombia. For further information see M. Lempinen,The United Nations Commission on Human Rights and the Different Treatment of Governments, (Institutefor Human Rights, bo Akademi University, 2005), pp. 346-349.

19 Which dealt with human rights violations in the world.20 Which dealt with advisory services and technical assistance.



24/117

A new chapter for human rights

out in avour o a simpler and more fexible agenda that would allow the Coun-cil to be more responsive 21. Others have highlighted the need or a balancebetween fexibility and predictability to give enough notice to nationally basedNGOs to participate at the Councils sessions 22. In this regard, there has alsobeen discussion about what should be the role o the main session that theCouncil is expected to hold.

Key questions include:What should be the main unctions o the Councils sessions (orum orhighlighting concerns, discussion on thematic issues 23 and implementa-tion, development o international law 24, action on country situations andollow-up)? How should these dierent roles be refected in the agenda?What should the Councils agenda or each session include 25? Should therebe a dierent agenda or the main session?Should the agenda continue to be organised on thematic lines with someprocedural Items or in a dierent way?How should country situations be dealt with in the agenda? Should there bea provision to consider crucial country situations in every session?Should the Councils agenda or each session be broad or narrow? I nar-row, how can NGOs continue to raise a broad range o concerns beore theCouncil?Should the agenda be fexible or xed or a combination o the two with cer-tain xed Items and some degree o fexibility?How should the agenda balance procedural tasks with substantive issues,particularly in the rst year o the Councils unctioning?

How much time should be allocated to the UPR in the agenda or each ses-sion or should it be undertaken outside the regular sessions?Should the sessions 26 be xed or particular times o the year? I so, when?How should work be distributed between the three sessions to acilitateNGO participation?How much notice do NGOs need o the issues that will be covered in a par-ticular session to be able to participate in the session?How much inormation about the agenda do NGOs need to participate inthe session?

21 Austria, Australia, and the United Kingdom among others, expressed these views at the informal con-sultations organised by Norway, Chile, India, South Africa and the Russian Federation on 3 May 2005.

22 Rachel Brett from the Quakers UN ofce and Mexico expressed these views at the informal consulta-tions organised by Norway, Chile, India, South Africa and the Russian Federation on 3 May 2005.

23 Para 5 (b), General Assembly Resolution 60/251.24 Para 5 (c), General Assembly Resolution 60/251.25 Some have suggested the inclusion of a separate agenda Item on follow-up and the creation of a special

segment for interaction with special procedures.26 The Council has to have a minimum of three sessions every year, and meet for at least ten weeks in total

in the year.


25/117

Process o drating the agenda

The process by which the agenda o the Council will be developed is still unde-ned as the Rules o Procedure o the General Assembly do not address thisissue in detail. It may be dealt with by an open-ended working group or otheranother process o consultation to develop the working methods o the Coun-cil and its rules o procedure, but this and other issues may only be decidedonce the Council meets in June. The Rules o Procedure or the unctionalcommissions o ECOSOC enabled the Sub-Commission, UN specialisedagencies, and NGOs that met certain conditions to propose Items or the pro-visional agenda o the Commission. There is insucient inormation on theextent to which NGOs were able to use this provision in the past but it may beimportant to create a provision or NGO input into the agenda o the Council.It is also important that the process o developing the agenda be an open andtransparent one.

Key questions include:What should be the process through which the Council develops itsagenda?Should there be criteria or the inclusion or exclusion o certain issues?Who should be involved in this process?How can we ensure that the process is open and transparent?Should there be a way or NGOs and NHRIs to suggest issues or countriesthat should be taken up on the agenda?Should there be a way or special procedures and treaty bodies to suggest

issues or countries that should be taken up on the agenda?

What issues should the Council addresswhile developing its rules o procedureand what should be the process?

The Rules o Procedure o the General Assembly set out some basic guide-lines or the organisation o the work o the Council 27; representation o

members28

; election o ocers29

; unctions o the Chairman30

; conducto business including procedural motions, setting o time limits o speeches,and submission o proposals and amendments 31; and voting 32. As men-tioned earlier in this chapter, the Council has considerable leeway to dene its

27 Rule 99.28 Rule 100.29 Rule 103.30 Rule 106.31 Rules 108123.32 Rules 124133.



26/117


working methods and expand on these Rules o Procedure. Perhaps the biggestchallenge not only or the Council but also all stakeholders, including States,OHCHR, and NGOs will be to avoid recreating the Commissions workingmethods and institutional culture because o reasons o amiliarity and habit.We have described below some o the key choices and issues that the Councilmay need to address but this is not an exhaustive list.

Meeting the requirements set out under theGeneral Assembly Resolution

The General Assembly has set out a requirement thatthe methods o work othe Council shall be transparent, air and impartial and shall enable genuinedialogue, be results oriented, allow or subsequent ollow-up discussions torecommendations and their implementation and also allow or substantiveinteraction with special procedures and mechanisms 33. The Council willhave to translate this into reality while developing its working methods andwill need to move away rom some o the working methods o the Commis-sion, which ailed to meet these goals. Working methods to establish a genu-ine debate will have to overcome both the ormalism and divisions whichdominated the Commissions work, and the Council will have to think o inno-vative mechanisms and processes that will help members and others engagein comprehensive and constructive discussions. The Council will also have todevote time and eorts to ensure that discussions on implementation and asubstantive interaction with special procedures and mechanisms are placed

at the heart o its agenda and rules o procedure.

Key questions include:How can the Councils working methods meet the requirements set outunder the General Assembly Resolution?What steps would the Council take to establish a genuine dialogue on keyissues?How should policy discussions be structured to ensure a genuine dialogue?How can the working methods o the Council provide or subsequent ol-low-up discussions to recommendations and their implementation?

How can the working methods o the Council provide or a substantiveinteraction with special procedures and mechanisms?

Bureau or expanded bureau?

The Rules o Procedure o the General Assembly require the Council to electa chairman (reerred to as the president), two vice-chairmen (reerred to as

33 Para. 12, General Assembly Resolution 60/251.


27/117

vice-presidents) and a rapporteur 34. The Commission had evolved a practiceo selecting a chairperson by rotation amongst the regional groups and choos-ing three vice-chairmen and a rapporteur rom the other our regional groupswho all together ormed the Bureau o the Commission. In the late 1990s,the Commission also set up an Expanded Bureau comprising, in addition tothe ocers o the Bureau, the co-ordinators o the ve regional groups 35.The last ew years o the Commissions unctioning saw the Expanded Bureausupplanting the Bureau and taking over its unctions o organising the worko the Commission. The last session o the Commission however amply dem-onstrated the paralysing eect this structure could have on the Commission,as it was extremely dicult to get all the regional groups, consulted throughthe regional coordinators, to agree to the agenda or the session. In princi-ple, the regional groupings were meant to serve as an administrative tool ororganising the work o the United Nations; in practice at the Commission,these groupings have increasingly led to block positions and divisions thathave severely impaired the unctioning o the Commission. The Rules o Pro-cedure o the General Assembly do not require selection on a regional basisand speciy instead that these ocers shall be elected on the basis o equita-ble geographical distribution, experience and personal competence 36. It isthereore essential that the Council and its membership refect more closelyon the role o the Bureau and how it can be elected to manage the work o theCouncil most eectively.

The members o the Council have been holding inormal consulta-tions to prepare or the rst session 37. As o the last consultations held on3 May 006, it has been decided that an expanded bureau will not be set

up. It has been also agreed that Ambassador Luis Alonso de Alba, MexicosPermanent Representative to International Organisations in Geneva, will holdthe presidents (chairpersons) position or the rst year and that the bureauwill consist o our vice-presidents (vice-chairmen), selected rom the otherour regional groups, one o whom shall serve as the rapporteur. The posi-tion o the president will ollow the principle o rotation amongst the regionalgroups. The method or the election o the president and vice-presidents maybe discussed urther when the Council discusses its rules o procedure andworking methods.

Key questions include:What should be the role o the bureau? What kind o a structure would acili-tate the bureau to carry out this role most eectively?

34 Rule 103.35 A. Almeida, Backgrounder on the Reform of the UN Commission on Human Rights, (Rights & Democracy,

2005), p. 20.36 Rule 103.37 The schedule for the informal consultations is available at: www.ohchr.org/english/bodies/hrcouncil/

docs/informal_consultations.doc. ISHR is publishing news bulletins on the discussions at each of theseinformal consultations, available at: www.ishr.ch/hrm/UNreform/NewsBulletin/contents.htm.



28/117


Should the chairman and bureau be elected individually rom a pool o suit-able candidates instead o selected on regional lines?Does relying on the regional group structure advance the work o theCouncil?Are there alternative way in which the bureau could be structured that couldhelp organise the work o the Council in a more eective manner 38?

Consideration o country situations 39

Action only under certain agenda Items and selectivity

The consideration o the human rights situation in countries has been one othe most controversial issues in the Commissions unctioning. The Commis-sion has been accused o selectivity and double standards in responding tosituations o severe human rights violations 40. It has ailed to even consideror discuss the human rights situations in certain countries despite inorma-tion about the occurrence o human rights violations on a massive scale 41.When situations are considered, action has oten been obstructed by the use oprocedural devices and block voting (discussed below) based on regional divi-sions and political considerations rather than on the merits o the proposedaction. As described earlier, the Commissions working methods or takingdecisions also meant that the Commission worked largely on the basis odrat resolutions presented by governments, without rst, routinely, review-ing the situation in a particular country in an objective manner 42. The initial

practice o tabling resolutions on country situations largely only under Item9 43 may have also led to excessive politicisation o that Item.The Council will need to dedicate its eorts to evolving transparent,

38 Some suggestions in this regard include rotating the chairpersons position amongst the bureau atperiodic intervals or rotation by countries on an alphabetical basis with the present, former, and futurechairperson forming the bureau (in line with the practice of the Security Council).

39 See paras 3 and 5 of General Assembly Resolution 60/251 that empower the Council to consider countrysituations.

40 Amnesty International, Meeting the challenge: Transforming the Commission on Human Rights into a Hu-

man Rights Council, (Amnesty International, 2005), p. 6.41 Ibid., p. 6. See also M. Lempinen, The United Nations Commission on Human Rights and the Different

Treatment of Governments, (n. 18 above), pp. 147158.42 Amnesty International, Meeting the challenge: Transforming the Commission on Human Rights into a Hu-

man Rights Council, (Amnesty International, 2005), p. 7.43 There was a shift in the last few sessions of the Commission to tabling country resolutions under Item

19, advisory services and technical cooperation, because of the emphasis on technical assistance, whichwas perceived as casting less blame on the concerned country. Amnesty International described theattempts to consider the human rights situation in Darfur, the Sudan, under Item 19 as only contribut-ing to the Commissions credibility decit. See ISHR, Report on the 61st session of the Commission onHuman Rights: Item 19, available at: www.ishr.ch/About%20UN/Reports%20and%20Analysis/CHR61/Items%20-%20Analytical%20Reports/Report-item%2019.pdf.


29/117

air and impartial 44 working methods or dealing with country situations. Asthe Council is a political body made up o governments, it may not be possibleor perhaps even desirable 45 to eliminate political considerations altogetherrom its work but its working methods have to be designed to prevent deci-sions on the human rights situation in a country being viewed solely as politi-cal victories or losses 46. In this context, the methods evolved to carry out theUPR 47 will be a key actor in establishing the credibility o the Council butmethods will also have to be developed to deal with acute and chronic humanrights situations. The Council will also have to consider whether and how itconsiders countries outside the UPR process.

Use o procedural devices to block debate

Members o the Commission increasingly used no action motions, which areprocedural devices 48 to prevent a vote on proposals to take action on particu-lar countries. These procedural devices ensured that the subject matter o theproposed resolution was not even debated by the Commission and eectivelyblocked the Commissions examination o some country situations 49. TheRules o Procedure o the General Assembly have similar procedural provi-sions, which would allow members to ask or the closure o the debate on theItem under discussion 50 or adjournment o the debate 51. The procedure toclose the debate is meant to govern situations where there is more than oneproposal on the same issue, or when amendments are added to an existingtext 52. The motion to adjourn is intended to cover situations where the body

44 Para. 12, General Assembly Resolution 60/251.45 See M. Lempinen, The United Nations Commission on Human Rights and the Different Treatment of Gov-

ernments, (n. 18 above), pp. 3-4.46 Statement by Louise Arbour, the High Commissioner for Human Rights, on the closure of the 61st ses-

sion of the Commission, 22 April 2005, in which she said I put it to you that it is a discredit to this Com-mission to view these decisions as political victories or losses. I say this in the full knowledge, and withall due respect for the fact that yours is an inter-governmental body. To suggest it should be apolitical issomewhat akin to criticizing spring for coming after winter. But political considerations should not beallowed to by-pass entirely the substance of the work entrusted to the Commission. available at: www.unhchr.ch/huricane/huricane.nsf/view01/B0848560A2465272C1256FEB0052A975?opendocument.

47 Please see the chapter on UPR for a further discussion on main issues and questions.48 Rule 50 of the Rules of Procedure for the functional commissions of ECOSOC allows a member to ask

for the closure of the debate on the Item under discussion. This request is put to vote and is carriedthrough if the majority vote in favour of the proposal to close the debate. Rule 49 also allows a memberto ask for an adjournment of the debate on the Item under discussion. While Rules 49 has less harmfulimpact that Rule 50, it can also be used to stall action on a country situation.

49 See M. Lempinen, The United Nations Commission on Human Rights and the Different Treatment of Gov-ernments, (n. 18 above), pp. 159167 and Annex 3 to his book on p. 461 listing instances of the use ofprocedural motions from 1967 to 2004.

50 Rule 117. See Amnesty International, UN: Amnesty International Concerned that General Assemblymay Block Country Action, (Amnesty International Public Statement, 17 November 2005), available at:http://web.amnesty.org/library/Index/ENGIOR410702005?open&of=ENG-317.

51 Rule 116.52 Human Rights Watch, Commission should Uphold Free Debate, - footnote carries over to the next page -



30/117


is not in a position to consider the issue under discussion or time reasons orbecause it is waiting or urther inormation. These Rules could however bemisused, as they were in the Commission and General Assembly in the past,and the Council may wish to prescribe limits on the use o these proceduraldevices so that they could only be invoked in limited and specied situations,and interpret these provisions strictly. As this is also a matter o institutionalculture rather than rules alone, all the members o the Council should exer-cise sel-restraint and also put pressure on peers to restrict the use o suchprocedural devices.

Block positions and voting

The capacity o the Commission to take action on country situations wasimpaired by an increase in voting in blocks by regional and other groups 53rather than through independent voting by individual members on resolu-tions. The creation o block positions also meant that regional groups wereheld to ransom by their most extreme members. That member eectively dic-tates the policy o the whole Group and then, because o group solidarity, everymember or almost every member o the Group votes as part o that block 54.Block voting is not restricted to the ve regional groups alone. The States othe European Union (EU) or instance were a rigid block when it came to vot-ing because o the commitment to increased coordination amongst EU mem-bers on oreign policy objectives. The Arican Groups insistence that only itshould be able to propose resolutions dealing with Arican States, coupledwith its internal requirement that the aected State consent to the resolution,

also eectively reduced the Commissions action on any Arican country toone that the State itsel was willing to agree to 55.This is a dicult issue or the Council to address in its working

methods as it relates more closely to institutional culture and practices adoptedby member States. The Council could consider methods by which the regionalgroup structure is not reinorced as the model or decision-making and coor-dination. There is also a need or leadership rom individual States or groupso States to change these practices.

(Human Rights Watch Press Release, 21 April 1999), available at: http://hrw.org/english/docs/1999/04/21/china848_txt.htm.

53 See Report of the United Nations High Commissioner for Human Rights, General Assembly, 59th Session,A/59/36 (27 September 2004), p. 3. Examples of block voting include voting on draft resolutions on theSudan, Zimbabwe, and Guantnamo in the 60th and 61st sessions of the Commission.

54 ISHR, Overview of the 61st session of the Commission on Human Rights, available at: www.ishr.ch/About%20UN/Reports%20and%20Analysis/CHR61/Items%20-%20Analytical%20Reports/Report-overview.pdf.

55 See also M. Lempinen, The United Nations Commission on Human Rights and the Different Treatment ofGovernments, (n. 18 above), pp. 173175.


31/117

Key questions include:How should the Council deal with country situations and what workingmethods should it develop to do this most eectively?What steps should be taken to ensure that the working methods o the Coun-cil or dealing with country situations are transparent, air and impartial?Should the Council develop procedures to rst review the situation in acountry, beore looking at political responses to the problem? I so, howshould this review or discussion be carried out?Should there be a link between the ndings and recommendations o the-matic and country special procedure mandates and the selection and con-sideration o country situations by the Council? I so, how should this berefected in the working methods?What working methods and rules o procedure should be developed toensure that the Council takes timely and adequate action on urgent countrysituations?Should action be taken on specic countries as a result o the considerationo thematic issues?How can the Council limit the use o procedural devices to prevent debateon country situations?How can the Council limit the use o block voting and positions on countrysituations?How can the Council ensure that the consideration o country situations isnot excessively politicised?

Resolutions or something new?At the 61st session o the Commission, 114 drat resolutions and decisions weretabled, totalling up to over 600 pages o documentation. hours and 39 min-utes were spent on voting including statements made during voting 56. Manyo these were resolutions that change very little rom one year to the next 57but considering the number o resolutions tabled and their volume, the Coun-cil may need to consider whether the lengthy and ormal resolution processis the only way through which decisions can be taken in the new body, orwhether newer methods can be adopted, which are more results oriented 58.

The Council will undertake a diverse range o activities, such as discussionon policy and thematic issues, standard-setting, and monitoring o countrysituations and implementation, and may need to identiy a series o tools andprocesses that could be used or decision-making. These could include: shortdecisions with clearly identied recommendations and procedure or ollow-up; recommendations and concluding observations; adopting policies which

56 Statistics relating to the 61st session of the Commission on Human Rights, E/CN.4/2006/8, (17 January2006), pp. 7-8.

57 P. Alston, The Commission on Human Rights, (n. 16 above), p. 196.58 Para 12, General Assembly Resolution 60/251.



32/117


are reviewed periodically; letters to States rom the bureau, etc. The Councilalso needs to consider the process by which decisions are adopted and whetherthis will be based on consensus or voting. The drive or consensus, thoughuseul in some situations to build international support, ended up paralys-ing the Commission or catering to the lowest common denominator in manysituations.

Key questions include:What should be the process or making decisions and how should outcomeso decisions be communicated?How can the decision-making process o the Council and its outcomes bemore results oriented?Should the Council continue to use resolutions as its primary decision-mak-ing tool? I not, when and what should resolutions be used or?What other types o instruments could the Council develop to communicateits decisions?Should the Council adopt policy decisions or guidelines or thematicissues?Should the Council aim or consensus in decision-making? I so, in whatsituations and how can the Council ensure that the drive or consensus doesnot prevent it rom taking action or adopting the weakest course o action?How should the Councils decisions be publicised?

Special and additional sessions

The Commission could call or special sessions to deal with urgent humanrights situations 59 ollowing the procedure set out in ECOSOC Resolution1990/48 but this procedure was criticised or being slow and infexible. TheGeneral Assembly Resolution creating the Council empowers it to hold specialsessions when needed, at the request o a member o the Council with thesupport o one third o the membership o the Council 60. The Council willhave to expand on the procedure to hold special sessions in its rules o proce-dure or working methods, particularly to determine how quickly it can con-vene the meeting rom the time o the request, and whether the request or the

meeting could also be made by other stakeholders such as other States, specialprocedures, treaty bodies, the High Commissioner, NGOs, and NHRIs.

Key questions include:What should be the rules o procedure or holding special or additionalsessions?

59 The Commission has held ve special sessions to discuss the situation in former Yugoslavia (Augustand December 1992); Rwanda (1994); East Timor (1999); and violations of the human rights of thePalestinian people by Israel (2000).

60 Para. 10, General Assembly Resolution 60/251.


33/117

How quickly should a session be convened rom the time that a request ismade?Should the Council develop criteria or holding special sessions?Should other stakeholders such as other States, special procedures, the HighCommissioner, treaty bodies, NGOs, and NHRIs be able to request a specialor additional session o the Council?

Process

The process through which the rules o procedure and working methods othe Council will be developed is still undened. Some suggestions in thisregard include setting up an open-ended working group or through consul-tations organised by the Chairperson, but this and other issues may only bedecided once the Council meets in June. Essential elements or this processmay include that it be carried out in an open, transparent, and public mannerand with the participation o all stakeholders, such as other States, special pro-cedures and other mechanisms, OHCHR, NGOs, and NHRIs.



34/117

3 Special Procedures


35/117


36/117


member States o the Commission. All individuals appointed to special pro-cedures are expected to be independent, are not paid, and serve in a personalcapacity or a maximum o six years.

What is the role o special procedures andwhat are the tools at their disposal?

Special procedures are at the very core o the UN human rights system.They represent one o the principal achievements o the Commission andare among the most innovative, responsive and fexible tools o the humanrights machinery 6. The International Commission o Jurists (ICJ) states thatspecial procedures have provided valuable conceptual analysis on key humanrights themes; have served as a mechanism o last resort or victims; havesometimes prevented serious abuses, and even saved lives, through urgentappeals; have served as an early-warning mechanism to draw attention tohuman rights crises; and have requently provided high-quality diagnoses oindividual country situations, including by carrying out country missions 7.

Special procedures can:

1) Undertake act-nding missions to countriesSpecial procedures carry out country missions, in which they meet with localauthorities, non-governmental organisations (NGOs), human rights deend-

ers, national human rights institutions (NHRIs), communities, individuals,and other stakeholders, and visit relevant acilities such as prisons, detentioncentres, sites o evictions, etc. Based on the ndings o the mission, they makerecommendations or action by the concerned government, the Commission,and the international community. These interactions can give NGOs and com-munities a chance to raise issues and highlight violations, and help set up dia-logues with governments on key issues. Media coverage o country visits canhelp place human rights issues within the public eye. Special procedures arealso oten able to obtain direct relie or victims during their country visits. Forinstance, in 199 the Special Rapporteur on Aghanistan was able to obtain a

presidential decision to commute the death sentence o some 114 persons intoa 0-year prison sentence during his country mission 8.

are not entirely based on geography. For example, the WEOG is comprised of Western European States,the United States of America (the USA), Canada, Australia, Israel, and New Zealand.

6 Amnesty International, United Nations Special Procedures: Building on a Cornerstone of Human RightsProtection, (Amnesty International, 2005), p. 5.

7 ICJ, Reforming the Human Rights System: A Chance for the United Nations to Full its Promise, (ICJ, 2005),p. 4. See also I. Nifosi, The UN Special Procedures in the Field of Human Rights, (Intersentia, 2005), pp.125-154 where she discusses the extent of the impact of the special procedures.

8 Ofce of the High Commissioner for Human Rights (OHCHR), - footnote carries over to the next page -


37/117


) Issue communications and urgent appeals to governmentsSpecial procedures can respond to credible inormation received rom NGOs,individuals, and others about a human rights violation by sending commu-nications to the concerned government setting out the alleged acts, andrequesting the government to respond to the allegation and to take correctiveaction. Communications are not an accusatory or judicial proceeding but area tool used by special procedures to seek clarication on alleged violations inorder to ensure the protection o human rights. In 005, special proceduressent 1,049 communications to 137 States, addressing ,545 cases. 53% o thesecommunications were issued jointly by a number o special procedures 9. Thevery act that a particular situation has been taken up by a UN human rightsmechanism can trigger a response rom national authorities, prevent or haltviolations, or ensure other corrective action. For instance, in October 004 ajoint communication was sent by our special procedures concerning the caseso two girls sentenced to death by stoning ollowing trials, which were consid-ered as unair by their legal representatives. The special procedures receivedollow-up inormation conrming that both girls had been discharged andacquitted o the death sentence 10.

3) Issue press releases or statementsIn cases o severe human rights violations, special procedures may also issuepublic statements and press releases highlighting their concern about the sit-uation and call on the concerned government to stop these violations and takeappropriate measures to correct the situation. These statements and pressreleases are a powerul tool to draw the attention o the media, and the pub-

lic and international community to a situation o concern. For instance, tenspecial procedure mandate holders made a joint statement expressing theirconcern on the mass orced evictions in Zimbabwe in 005 11. This statementwas widely reported in the press and helped build international awarenessand action, leading to a mission by the UN Secretary-Generals Special Envoyto Zimbabwe.

4) Identiy trends or emerging issuesSpecial procedures undertake studies on specic topics alling within theirmandate to gather a better understanding o a problem, explore cross-link-

ages between issues, and suggest solutions. In their annual reports they also

Fact Sheet N. 27: Seventeen Frequently Asked Questions about United Nations Special Procedures, availableat: www.ohchr.org/english/about/publications/docs/factsheet27.pdf.

9 OHCHR, Special Procedures Bulletin, (January April 2006), available at www.ohchr.org/english/bod-ies/chr/special/BulletinJan-Apr2006.pdf.

10 OHCHR, Special Procedures of the Commission on Human Rights: Facts and Figures on 2004 Communica-tions, available at: http://www.ohchr.org/english/bodies/chr/special/Facts%20and%20gures%20on%202004%20Special%20Procedures%20Communications.pdf

11 Available at: www.unhchr.ch/huricane/huricane.nsf/view01/C32FD8329AF35B43C125702D00507AEA?opendocument.


38/117


analyse trends in human rights protection or violations as well as emergingissues. These reports can be extremely infuential in placing violations againsta particular group or a certain phenomenon on the international agenda.The reports o the Special Rapporteur on Extra-Judicial Executions have orinstance helped draw attention to the killing o individuals because o theirsexual orientation or gender identity 12.

5) Contribute to the elaboration o human rights standards allingwithin their mandate

Special procedures oten elaborate on the content or application o humanrights standards by studying the application o these standards to specicissues or groups, and providing guidance to States on the implementation ohuman rights standards. For example, the Special Representative o the Secre-tary-General on internally displaced persons developed the Guiding Principleson Internal Displacement.

6) Submit reports to the Commission and in some instances theGeneral Assembly

Special procedures submit annual reports to the Commission, and in somecases the General Assembly 13, covering the activities relating to their man-dates, in which they highlight situations o concern, individual cases o humanrights violations, trends and emerging issues, and make recommendations oraction. Special procedures also brie the Commission, and in some cases theGeneral Assembly, on their ndings and recommendations and participate inan interactive dialogue with States. The annual reports as well as the briengs

help draw the attention o the Commission and the international communityto human rights violations occurring in a particular country or against a par-ticular group, or signicant issues aecting the implementation o humanrights. They may also serve as an early-warning system on the severe deterio-ration o the human rights situation in a particular country.

12 See Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary executions, (58th session of theCommission on Human Rights), E/CN.4/2002/74, (9 January 2002), pp. 21, 42.

13 About one third of the mandates report to the General Assembly according to OHCHR, Fact Sheet N. 27:Seventeen Frequently Asked Questions about United Nations Special Procedures, available at: www.ohchr.org/english/about/publications/docs/factsheet27.pdf. Under the Arria formula, an informal arrange-ment that allows the Security Council to meet with experts, representatives of non-State entities andNGOs, some special procedure mandate holders have also briefed members of the Security Council onspecic country situations, e.g. the Democratic Republic of Congo.


39/117


What are the dierent typeso special procedures?

Country or thematic mandates?

Special procedures are broadly divided into mechanisms that ocus on coun-try-specic situations (reerred to as country mandates or mechanisms), andthose that ocus on thematic human rights issues (reerred to as thematicmandates or mechanisms).

Country mandates:

The rst special procedure set up by the Commission in 1967 was a countrymandate, the Ad-hoc Working Group o Experts on Southern Arica 14. Until1980, all the special procedures set up by the Commission were ocused oncountry situations but currently there are only 13 country mandates 15 out othe 41 total special procedure mandates. Country mandates are asked to exam-ine the situation o human rights in a particular country and are generallyset up or a one-year period ater which they are reviewed annually by theCommission, though some have been set up or longer periods or an inde-nite duration 16. The number o country mandates set up or renewed by theCommission has decreased in recent years because o a lack o political willto address country situations and resistance to country-specic resolutions(there were 6 country mandates in 1998 while there are only 13 in 006).

Thematic mandates:

The Commission created the rst thematic mandate in 1980, the WorkingGroup on Enorced or Involuntary Disappearances 17. Thematic mandates areresponsible or monitoring and examining a particular human right or issueacross all countries 18 in contrast to country mandates, which ocus on allissues in a particular country. There are currently 8 thematic mandates 19,

14 Initially called the Ad-hoc Working Group of Experts to investigate charges of torture and ill-treatment of

prisoners, detainees or persons in police custody in South Africa, set up under Commission on HumanRights Resolution 2 (XXXIII).

15 Further information on the country mandates is available at www.ohchr.org/english/bodies/chr/special/countries.htm. See also annex 3.1 which has one-page descriptions of each special procedure mandate,explaining its areas of focus, state of cooperation with the government and key developments, availableon the CD-Rom and on www.ishr.ch/handbook.

16 The mandate of the Special Rapporteur on the situation of human rights in the Palestinian Territoriesoccupied since 1967 will be in force until the end of the Israeli occupation.

17 Commission on Human Rights Resolution 20 (XXXVI).18 Special procedures, as monitoring mechanisms of the Commission, can examine the situation of hu-

man rights in all UN member States.19 Further information on these thematic mandates is available - footnote carries over to the next page -


40/117


which cover civil and political rights and economic, social and cultural rightsas well as particular groups that are vulnerable to human rights violations.Since 1995, an increasing number o mandates have been set up on economic,social and cultural rights issues. Thematic mandates are generally created ora three-year period, ater which they are renewed periodically.

Working group or rapporteur?

Almost all special procedures are composed o individual human rights experts(special rapporteurs, special representatives or independent experts), and onlyour are working groups 20, composed o ve human rights experts each. Theworking group ormat is considered to be more suitable when a collegiatebody is required, either to promote wider discussions or to render opinionson cases with participation o experts rom dierent legal backgrounds. Theworking group model is also avoured by some because o the representationrom all ve regional groups.

Review of the system of special procedures

What will happen to the special

procedures ater the creation othe Human Rights Council?

General Assembly Resolution and review ospecial procedures

The General Assembly Resolution creating the Human Rights Council (theCouncil) provided that the Council would assume all mandates, mech-anisms, unctions and responsibilities o the Commission on Human

Rights in order to maintain a system o special procedures21

. The special

at www.ohchr.org/english/bodies/chr/special/themes.htm. See also annex 3.1 which has one-page des-criptions of each special procedure mandate, explaining its areas of focus, and listing country missions,pending reports and thematic reports, available on the CD-Rom and on www.ishr.ch/handbook.

20 The Working Group on Arbitrary Detention, Working Group on Enforced or Involuntary Disappearances,Working Group of experts on people of African Descent, and Working Group on Mercenaries. The Work-ing Group on Arbitrary Detention adopts opinions on individual cases and has more of a semi-judi-cial character than other special procedures. The Working Group on Enforced Disappearances is alsounique because it is concerned with determining what happened to and the location of disappearedpersons rather than legal responsibility for individual cases of disappearances.

21 Para 6, General Assembly Resolution 60/251.


41/117


procedures are thereore carried over to the Human Rights Council, and theResolution requires that the Council continue to maintain a system o specialprocedures.

The General Assembly Resolution species that the Human RightsCouncil shall review and, where necessary, improve and rationalize all man-dates and that the Council shall complete this review within one year aterthe holding o its rst session 22. The Council will thereore be expected toreview all special procedure mandates within one year o its rst session. Thisclause read along with the requirement that the Council maintain a system ospecial procedures indicates that the Council is not obligated to retain all thespecial procedure mandates that currently exist but rather a system o specialprocedures, and has the authority, i the review indicates this is necessary, tomodiy mandates, and to increase or decrease the number o mandates.

The review o the special procedures will be a crucial process withconsiderable implications or the UN system o human rights protection andor the credibility o the Council. All concerned actors will have to direct theireorts to ensuring that the review is not used to weaken or terminate specialprocedure mandates or politically motivated reasons. They will have to makesure that the process is used to strengthen special procedures and addressissues that have hampered their unctioning, particularly at a political level.

Mandates up or renewal and expiring terms omandate holders

While all special procedures have been transerred to the Human RightsCouncil, special procedure mandates that were up or renewal at the March006 session o the Commission as well as those where the mandate hold-ers term was coming up or renewal 23 are in a peculiar situation: under onepossible interpretation o the General Assembly Resolution, these mandateswill come to an end in July 006 unless explicitly renewed beore then. TheCommission could have renewed these mandates, extended the terms o themandate holders, or appointed new mandate holders but took the view thatthese mechanisms had been transerred to the Council by the General Assem-bly Resolution, and that it did not have the authority to address these issues.

To ensure that there is no gap in the protection o human rights24

and thatthe system continues to unction or victims o human rights violations, theHuman Rights Council should clariy this issue as a matter o priority by con-rming the continuation o these mandates and o the terms o the mandateholders as soon as it meets in its rst session. It is likely that it may do so

22 Ibid.23 For a list of these mandates and mandate holders, see www.ishr.ch/hrm/chr62/SPstatus.pdf.24 When a mandate is renewed or set up, the program budget implications (PBIs) or the estimated costs of

the activities expected to be carried out by the mandate holder under his or her mandate are calculatedand attached to the resolution so that these costs can be approved in the budgeting process.


42/117


using an omnibus resolution 25 or decision, which arms the extension oall mandates and existing mandate holders until the completion o the review.There is a risk however that the Council could delay acting on this matteror take politically motivated action against certain mandates. I this appearslikely, NGOs and other actors will have to push or the omnibus resolutionensuring the extension o all mandates in a manner which also guarantees theextension o the terms o mandate holders until the completion o the reviewprocess (rather than one year, in the event that review process spills beyondthe year specied by the General Assembly Resolution).

Outstanding reports

In its last session, the Commission did not hear the reports o the special pro-cedures and has transerred them to the Human Rights Council or urtherconsideration at its rst session in June 006 26. As many o these reportscontain important inormation on country situations and recommendationsthat need to be ollowed up, it is essential that the Council gives an opportu-nity to the special procedures to present their reports and discuss their nd-ings and recommendations as early as possible. The Council should thereorestart receiving the outstanding reports at its rst session in June and concludethe process at its second session in September.

What will be the scope o the review?

The idea o a review o special procedures did not develop in a vacuum. Ithas been preceded by two broad processes that will be extremely relevant tothe review and will shape its outcomes. In the last ew years, there has beenan increasing number o attacks 27 on the special procedures that have triedto limit the independence or working methods o special procedures. Thesehave included suggestions such as regional nominations, non-appointment

25 An omnibus resolution is a resolution that covers many issues together. An example of this kind of a reso-lution is the annual omnibus resolution on economic, social and cultural rights issues, see Commissionon Human Rights Resolution 2005/22.

26 Commission on Human Rights Resolution 2006/1.27 See International Service for Human Rights (ISHR), Overview of the 61st Session of the Commission

on Human Rights, available at www.ishr.ch/About%20UN/Reports%20and%20Analysis/CHR61/Items%20-%20Analytical%20Reports/Report-overview.pdf and ISHR, Overview of the 60th Session of theCommission on Human Rights, available at: www.ishr.ch/About%20UN/Reports%20and%20Analysis/CHR60/CHR60-Overview.pdf. See also M. Lempinen, Challenges Facing the System of Special Procedureof the United Nations Commission on Human Rights, (Institute for Human Rights, bo Akademi Univer-sity, 2001), pp. 248259 where he describes attempts to review the special procedures from early 1990sonwards and the conicting interests of groups who wanted to rev

a handbook on issues of transition from the commission on human rights to the human rights council

Documents