The UN system for the protection of human rights

The following essay will discuss how the UN system for the protection of human rights has been and continues to undergo extensive reform. It will further analyze whether the system’s shortcomings allow for the effective protection of human rights.

The essay will provide an introduction to the UN and then move on to trace the establishment of the United Nations Human Rights Council (hereinafter referred to as either the UNHRC or the ‘Council’) after the abolishment of the Commission of Human Rights (hereinafter referred to as either the CHR or the ‘Commission’) due to its politicized nature. I will then proceed to highlight reasons why there is no need for reform in the UNHRC, with special emphasis on the Universal Periodic Review (UPR) and also list a few elements that require change.

It is pertinent to mention that the ambit of this essay is restricted to the UNHRC and does not in any way reflect my opinion on the need for reform in the UN treaty-monitoring body system.

It is inevitable that discussion of this essay will begin by providing a brief introduction to the UN system. The UN, mainly using its Charter as the basis, provides a generous, universal framework for the protection of human rights. This is done mostly through its legally binding treaties which are aimed at promoting democracy and extensive human rights throughout the world.

Influenced mainly by the horrors of World War II, the UN was created to further international cooperation while focusing on the establishment and sustenance of world peace and global security. It is perhaps this strong influence of history on its treaties and declarations that don’t allow the UN system to embrace the human rights crisis facing today’s world in its entirety and has subsequently triggered the need for reform in some areas.

Being the single most prominent thread running through a vast number of member states, the UN takes extra caution to define rights in a diplomatic manner. Trying to take into account various economic, social, political and cultural differences and histories, most UN declarations are broad and not as helpful to member states as regional institutions. This however, does not detract from the fact that the UN affects more people and nations than any regional institution.

The UN system for the protection of human rights employs three different strategies for the protection and enforcement of human rights. Firstly, it focuses on establishing and maintaining international standards through its legally enforceable treaties and non binding declarations, agreements and documents. Secondly it focuses on using experts in varying fields of human rights and Special Rapporteurs for the promotion and enforcement of human rights. Thirdly, the UN system provides a voluntary fund for advisory services and technical assistance in the arena of human rights.

As mentioned earlier, the primary focus of this essay will remain on the UNHRC. This is an inter governmental body within the UN system for the protection of human rights and is a subsidiary body of the United Nations General Assembly. The UNHRC works in close collaboration with the Office of the High Commissioner for Human Rights (OHCHR) and makes use of the UN’s Special Procedures.

The UNHRC is a successor to the United Nations Commission on Human Rights (CHR) and was established by the General Assembly by adopting an overwhelming resolution (A/RES/60/251) on 15th March 2006. The CHR was a subsidiary body of the United Nations Economic and Social Council (ECOSOC) and had the privilege of being the UN’s primary and most significant international forum engaged in the protection and promotion of universal human rights, (a responsibility that the UNHRC now upholds better). The CHR was also assisted in its principal tasks by the Office of the United Nations High Commissioner for Human Rights.

The CHR was intended to examine, monitor and publicly report on human rights situations in specific countries or territories (known as country mechanisms or mandates) as well as on major phenomena of human rights violations worldwide (known as thematic mechanisms or mandates).

The UNHRC replaced the highly politicized CHR mainly because the later was heavily criticized for allowing countries which had poor human rights records to become members [1] .

This does not mean that the UNHRC is not politicized or is not criticized for acting in accordance with political considerations as opposed to a blatant desire to promote human rights. The Council is believed to be controlled and influenced by a bloc of Islamic and African states, supported by China, Cuba and Russia, who protect each other from criticism. It is further accused by many a prominent entities for focusing to greatly on the Israeli, Palestinian conflict [2] . The United States went so far as to boycott the Council during the Bush administration to show their annoyance but reversed its decision since the start of the Obama reign.

It was clear when the UNHRC was created that it would be a structure which would guarantee protection of human rights by expanding the scope of protection offered and yet at the same time preserve the sovereignty of the state(s) under consideration. Thereby making it a stronger and more competent body than the now abolished CHR.

The UNHRC was to fulfill its role as the principal human rights protecting body by adopting its Institution building package [3] . Among the strategies the UNHRC adopted, was the Universal Periodic Review [4] , the Advisory Committee (which was to provide the Council with expertise on all human rights issues across the globe) and the Complaints Procedure (allows complaints about human rights violations to be brought to the attention of the Council).

Before one can proceed forward to examine the UNHRC and the need for reform in it, one must point out the reasons why the CHR was abolished and what its shortcomings were. This is important because it is only in light of the shortcomings of the CHR that the success of the Council can truly be measured.

The CHR was heavily criticized for the composition of it members as a number of them had dubious human rights records and this included states who’s representatives had been elected to chair the Commission.

The CHR was further criticized as having become a platform for political cross fires. Where most meetings centered around political talks and the Commission seldom actively participated in a discussion of human rights issues.

Many activist groups had repetitively expressed concern over the membership of countries [5] which had extensive records of human rights violations. Not only were these countries working against the resolutions of this Commission which prohibited human rights violations, these countries were further aggravating the situation by indirectly promoting despotism and domestic repression.

The Unites States also contributed heavily to the abolishment of the CHR by boldly claiming that the CHR displayed an unwillingness to address real human rights concerns. The United States was answered by being kicked of the commission in 2002 by many states who were themselves guilty of immense human rights violations. [6] 

The commission added insult to injury by providing grounds to be criticized for bias against Israel [7] . On April 15, 2002, the Commission approved a resolution affirming the right of the Palestinians to fight Israel by "all available means, including armed struggle" in order to achieve independence, a goal of the UN [8] .

Whereas all the aforementioned shortcomings contributed to the CHR being abolished, the last straw perhaps came in 2004 when at the 60th Session the Commission was criticized for failing to apply the Charter’s standards regarding issues such as stoning of women, honor killings, mutilations and apostasy death penalty, in a uniform manner to all member states. The Commission further failed to provide an adequate response when the Muslim member states rejected abiding by the Charter standards in the aforementioned issues by saying that this was ‘interference in the internal affairs of a sovereign state.’

Therefore, it may be seen that there were numerous reasons which lead to the creation of the UNHRC. The new Council consists of 47 members with states which are elected by an overwhelming majority of the General Assembly. The resolution requires that states take into account a candidates previous human rights violations.

Numerous human rights organizations were enraptured by the reform of the CHR and the creation of the new Council. However, it was a matter of some debate whether the new Council would be able to overcome the shortcomings of the CHR. Therefore the following few paragraphs will show how the Council has been successful in its reformation of the policies and shortcomings of the CHR.

Furthermore, while assessing the success of the UNHRC and the need for reform in it, it remains to be clarified whether one should take into account the political influences which have moulded the creation of the UNHRC or one should analyze the Council purely in terms of its technical content [9] .

Amongst the successes of the Council are:

When the Council was created it took on all the existing functions, mandates and responsibilities of the CHR. There was however additional burden on the Council as well, merely that the General Assembly wanted the Council to review and improve the existing mechanisms alongside rationalizing them where necessary. As is apparent from the discussion in this essay, the Council was successful to a large extent.

Furthermore, unlike the Commission which met once a year, the Council was to meet three times a year which could not be less than three weeks in duration. Even though, the proposal to make the Council a standing body was rejected, a better substitute was put in its place, merely that when the need arose, at a member’s request and with the help of one third of its membership, the Council could meet again.

As opposed to the Commission which reported to the ECOSOC, the Council now reports directly to the General Assembly and this automatically speeds up the process.

It is evident from the working of the Council that instead of being termed a failure because they could not possibly fulfill all the aforementioned obligations (those which were the responsibility of the CHR as well as those mentioned in its new agenda) within one year, they decided to preserve the existing state of affairs and build on them.

Currently, the Council has been successful in improving its agenda and giving it more flexibility. It also allows for more focused discussions and prioritization of work

The Council has managed to create a successful relationship with NGO’s as well. The NGO’s participate in the Council’s interactive dialogues with special procedures and this has been boosted by allowing the NGO’s flexibility in a number of areas, including: managing their own time, the number of times they may speak during a session and their choice of speaker. NGO’s were also more willing to cooperate because the NGO Liaison Officer ensured that this was the case.

A new Human Rights Council Advisory Committee, with reduced membership and meeting time, has been created to replace the older Sub Commission. The negative effect of this is that the role of the experts has been curtailed and turned in to merely that of providing ‘advisory’ opinion and the experts no longer have the privilege to take independent initiatives. However, this is balanced by the development of a sound criterion for nomination and its effective implementation, which automatically means that the quality of expert ‘advice’ being offered will have improved.

The Council has furthermore opted for a new system of appointment, which will not only contribute towards greater transparency in the process and bring in more accomplished candidates but will also allot more power to regional groups as regards the selection process.

In my opinion one of the greatest pluses of the Commission was that it had a fixed agenda with twenty one items on the list. As the agenda was not subject to change on a yearly basis, participants and in particular NGO’s benefitted from knowing when a particular agenda item would be put forward for discussion and would be prepared for it. The main disadvantage of this approach however was the duplication of work and lack of prioritization in agenda discussions.

The new Council has shown reform and improvement even in this area by providing for ten fixed agenda items alongside allowing discussion to be carried out on new human rights mechanisms or on human rights bodies that the Council either creates or interacts with.

Therefore, it can be seen that viewed with a political yardstick, the new Council was a success and continues to be one because it managed to preserve all those mechanisms which came under attack and also improved them.

I feel that as regards the evaluation of the Council and the need for its reform in terms of technical content, this depends entirely on the UPR. If the UPR functions well then this may well mean that the Council has not only surpassed the draw backs which were prevalent in the Commission but has also gone ahead to become a success itself.

Amongst the new functions of the Council was the creation of the UPR [10] which empowered the Council to take a periodic review of whether all UN member states were fulfilling their human rights obligations.

Not only did the General Assembly leave it up to the Council to develop the intricacies of the UPR, the Council had to do all this within the first year of its formation. [11] 

The UPR is seminal because if carried out properly this would nullify the main criticism levied against the Commission, mainly that they had exhibited double standards and selectivity while responding to human rights issues from different states. The Council would instead conduct its research through experts and would adopt an objective standard while assessing human right situations from across the globe.

The process conducted through the Council will now also not be excessively burdensome, will have realistic objectives and will not put undue pressure on the Council’s time, human and financial resources.

One criticism of the UPR itself however may be that it can be classified as an intergovernmental process that leaves little room for the participation of NGO’s and experts.

However, holistically speaking the UPR is an excellent mechanism for keeping human rights violations in check, provided that when states adopt a ‘cooperative approach’, they are willing to criticise each other and avoid duplication of work by restricting the focus of their discussion to human rights issues.

Therefore, it may be said that the Council is a success even in terms of its technical content.

This essay would be incorrect without light being shone on some of the areas where the Council has not been successful in providing reform. Without the correction of these areas, universal protection and promotion of human rights cannot be guaranteed.

It could be argued that by removing the primary human rights body of the UN from the ECOSOC and making it a subsidiary of the UN General Assembly, social and economic rights suffer a detrimental blow because they can no longer be protected in the same manner with fewer resources and lesser time allotted to them.

The CHR had a complaint procedure (1503 procedure) under which it could receive complaints from victims or others acting on behalf of the victims from any country in the world. The main drawback was that the Commission would not handle a complaint for a violation of an individual’s personal human right under the 1503 procedure.

The Council unfortunately did not amend this and continued with the 1503 procedure mainly because the states were obsessed with maintaining the secrecy element of their discussions. Unfortunately, this did not allow the Council’s complaint procedure to come at par with other international and regional complaint procedures that had been established over the past forty years.

However, the advantage of preserving the 1503 complaint procedure was that it holds the special privilege of being one of the few procedures that allows one to submit complaints even against governments that have not ratified too many other human rights treaties. Therefore, the preservation of this procedure also has its merits.

Related to this is the need for reform in the data management and sharing systems, which allow the special procedure and treaty bodies to become aware of issues that are already under consideration so as to avoid overlap. Once again, this was not adopted by the Council to preserve the secrecy element in its discussions.

Another cause for reform of the UNHRC can be that it did not initially adopt proposals which recommended that the complaint procedure serve as an early warning system, through which attention could be drawn to emerging situations of gross human rights violations.

However, it could be argued on the contrary that the complaint procedure has been maintained with the notable improvement that the complainant will now be kept up to date with the status of his complaint and its final outcome.

Having had discussed the successes and failings of the UNHRC in some detail I now feel confident in coming to the conclusion that there is for the most part no need for reform in the UNHRC. It would be highly idealistic of anyone to expect that the Council has no flaws but if its benefits are greater and shortcomings fewer, then it is a success.

I feel this is also because the Council has managed to keep the negative practices of the now abolished Commission under check and even if in some spheres it has not developed policies and functions further, at least it has worked conscientiously to maintain the existing one and utilise them to the best of their ability.

Therefore, in conclusion it may be seen that albeit continuous reform is needed to keep any UN body up to date with changing human right situations, the UNHRC reformed most of the shortcomings prevalent in the CHR. Now, the UNHRC, in terms of its political influences and technical content serves to both protect and promote universal human rights.

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