UN Reform Must Strengthen and Enhance
Existing Mechanisms of Protection of Human Rights
The reform process of United Nations mechanisms for the protection of human rights,
launched by the Secretary General, is on the way. Several documents, the latest including
the Secretary General’s report, In Larger Freedom, the High Commissioner for Human
Rights’ The OHCHR Plan of Action: Protection and Empowerment, and today, Mr. Jean
Ping’s Draft Outcome Document for the High Level Plenary Meeting of the General
Assembly of September 2005, have started to give shape to the reform process. While
numerous aspects remain unclear and are not unanimously approved, it appears that the
basic principles are being agreed upon.
FIDH welcomes the will of United Nations actors to make human rights one of the three
pillars of the United Nations system, on equal footing with security and development. For
this purpose, it supports the idea of an upgraded Human Rights Council. FIDH also
welcomes the idea of a strengthened role for the Office of the High Commissioner for
Human Rights through a significant increase in the regular financial resources of the
Office, an increase in and diversification of its staff and a strengthening of the field
presence. However, FIDH is concerned about certain worrisome trends and calls for a
reform process that would maintain existing assets of the system and strengthen the
system to better protect human rights.
Real challenges: Rapid response to human rights violations and effective
implementation of the protection mandate
Critics of the Commission on Human Rights must not disregard the essential fact that the
Commission has initiated major advances in standard-setting and creation of protection
mechanisms, which are still to be enhanced, in charge of supervising the implementation
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of said standards. Ensuing blockage and denial of its actions have political causes. Some
states tried to hijack the Commission and its mechanisms in order to shield themselves
from criticism, rather than in the name of protecting human rights, thus bringing blame
back upon the Commission.
Therefore, reform must focus on two major gaps: the absence of practical implementation
by States of the recommendations addressed by UN human rights bodies, and the
practical incapacity of the international community to react rapidly to the most serious
human rights violations for effective protection of victims.
The contemplated notion of a standing Human Rights Council which could deal with
urgent situations is, in that respect, an encouraging sign, as it would enable the
international community to respond immediately to situations. Strengthening the capacity
of the High Commissioner’s Office, and in particular, its field presence and cooperation
with other UN agencies, should allow it to play a role in conflict prevention, but also
facilitate follow-up of recommendations from the Commission and the future Council, as
well as from Special Procedures or Treaty Bodies. Nevertheless, the success of the
reform will depend primarily on the political will of States to show their commitment and
submit to the protection mandate of the Commission / Council. This will play out in the
system’s ability to set up incentive and sanction mechanisms that push States to comply
with their human rights obligations.
Composition of the “Human Rights Council”: toward clear, specific and measurable
commitments by Candidate States
Whereas the proposal to have States elected by the General Assembly by a two-third
majority would give the Council more weight and raise its status at maximum in the UN
hierarchy, this measure would still not address the question of the commitment of elected
States to implement the protection mandate conferred to it. This procedure would not
prevent a geographical group, in the name of respecting the - necessary - principle of
equitable geographic representation, of submitting a limited list of “problematic”
candidates, thereby undermining the mandate devolved to the Council, as this happened
at the Commission.
As stated in previous documents, FIDH considers that the candidacy of a State to the
future Human Rights Council must be based on the State’s clear, specific and measurable
commitments. [1] The first of these obligations should be the issuance of a standing
invitation to UN special procedures.
Indeed, whereas, no State can assert that it fully complies with its human rights
obligations, it will be entitled to criticize or examine the human rights record of other
States only if it accepts to submit itself to such examination and demonstrates its will to
improve the human rights situation at home. This criterion would not impede on the
principle of equal geographic representation. The issuance of a standing invitation to
Special Procedures must be a first step, a step which is not only formal but also
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qualitative: the membership of a State which would not effectively cooperate with the
special procedures or does not implement their recommendations should be suspended.
“Peer review”: a serious risk of downgraded protection
On the other hand, the ‘peers review’ mechanism towards which the projected “Council”
seems to be moving gives raise to serious concerns. Indeed, this concept embraces the
idea of examination of the human rights situation in all countries, without exception,
which FIDH supports. Nevertheless, the study of similar mechanisms in the OECD or
other international bodies challenges the benefits put forward by sponsors of the reform
as far as human rights protection is concerned.
Indeed, the existing mechanisms were set up in order to monitor the implementation of
international conventions and standards. In the field of human rights, these monitoring
bodies already exist: the treaty bodies to review the implementation of the seven
instruments on human rights protection, as well as the special mechanisms of the
Commission on Human Rights (rapporteurs and working groups), with a less systematic
but universal scope.
Besides, peer review, as it is implemented today by other bodies, leads to the adoption by
consensus of reports and recommendations. In the human rights context, a “consensual”
assessment would lead, de facto, to the adoption of country reports underrating the
qualifications adopted by UN human rights mechanisms to a selection of issues of
concerns setting aside non consensual issues (like death penalty, reproductive rights,
discrimination based on sexual orientation, discrimination of some minorities or the
plurality of obligations stemming from the economic, social and cultural rights of
individuals). The failure to denounce some situations would be all the more worrying that
the asserted benefits of peer review would be objectivity, exhaustiveness and
universality.
This concept is also misleading in that it implies that States would be truly equal. On the
contrary there are many reasons to think that the severity of the assessment will vary
according to the power and importance of the State in the international arena: those who
today balk at denouncing a permanent member of the Security Council or one of the
world « powers » before the Human Rights Commission, would reacting the same way
when assessing in the context of the peer review. A State with few allies in the
international community would also not be able to exercise pressure to limit the severity
of its examination.
Finally, should the Council’s role, as a political body, be that of producing exhaustive
and balanced assessments of the implementation of international standards, where
independent expert mechanisms exist and develop indicators for each standard? For
FIDH, a Human Rights Council composed of States must delegate assessment to
independent experts and special procedures, and focus its activities on how to react
efficiently to violations ascertained by experts. In other words, auto-assessment brings
the major risk of auto-absolution.
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Participation of an independent civil society has to be guaranteed and protected
Whereas the participation in itself of civil society to the UN human rights protection
mechanisms was not challenged, in particular at the occasion of debates on a « Human
Rights Council », the selection process and access, in practice, of NGOs to the
Commission or Council that raise serious concerns. The depoliticization of the NGO
accreditation process recommended by the Cardoso report, which could be undertaken
through entrusting accreditation to an expert body (instead of a committee composed by
States), would allow for the exclusion of GoNGOs (non independent NGOs associated
with States) and override the current reluctance of some States to let independent human
rights organizations from their countries to participate in UN activities.
Special Procedures: Mechanisms whose independence has to be guaranteed
The support expressed by many States in favor of UN special procedures and the will to
improve their functioning must not hide the current attacks led against them, particularly
in the so-called « Asian paper », which will form basis of discussions to be held in June
and September 2005. FIDH recalls that rapporteurs, working groups, independent experts
or Secretary General Representatives are mechanisms whose legitimacy is guaranteed
both by their expertise and independence. These factors must allow them to respond
rapidly to human rights violations within the framework of their respective mandates, by
organizing field visits, undertaking investigations pursuant to long-established methods,
which have proven their value, and making public their findings in the manner they think
best in order to eradicate violations. Within the framework of the reform, their role has to
be further strengthened, in order for them to cover systematically all violations falling
under their mandate and be granted more publicity and reactivity with respect to their
conclusions and recommendations. In that regard, one could imagine, inter alia, a process
by which Special Procedures could address emergency situations, serious and systematic
human rights violations and situations of repeated failure to implement recommendations
for review to the « Human Rights Council ».
Their independence vis-à-vis States - whose behavior they must assess - must be
protected. Such level of independence does not apply with respect to independent human
rights organizations, as these act similarly in the assessment of the implementation by
States of their human rights obligations. Financial indemnification for the exercise of
their mandate could be useful to extend their presence and action, while guaranteeing
their independence.
Treaty bodies must not be left out in the reform process
The treaty bodies - monitoring implementation by States of their obligations under the
seven fundamental treaties - are an essential element in the UN protection system. They
must not be forgotten by the reform process, neither substituted, nor undermined by the
projected peer review mechanism.
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The reform of treaty bodies, launched several years ago, covers the systematization and
harmonization of working procedures and methods of various treaty bodies. FIDH
welcomes these efforts insofar as thy answer to the needs highlighted by it in a previous
report [2]. Indeed, in view of the lack of political will demonstrated by a number of States
to report on a regular basis on the manner they implement their treaty obligations, FIDH
has long urged for a generalization of the review procedure enabling for the examination
of a country situation in the absence of a state report. The various procedures for followup of recommendations are useful to address lack of implementation, especially, in
particular by reducing the periodicity of State examination. Finally, generalizing the
procedure of urgent reaction would allow said mechanisms to react to systematic and
serious violations at the time of their occurrence, by starting a dialogue with concerned
authorities, or that failing, by referring the situation to UN political bodies.
The idea of an expanded core document is useful in that it would bring together
information necessary to all treaty bodies, thus preventing duplication, and allow for the
submission of more specific reports to each treaty body depending on their respective
mandates. However, its non-compulsory nature and also the absence of obligation to update it on a regular basis jeopardize the relevance of this expanded core document in
practice, and diminish the legal force of the obligation to regularly up-date related
information.
Finally, FIDH regrets that the reporting obligation is too often presented as a « reporting
burden ». The use of this notion, even within UN premises, undermines the true value of
this obligation. The objective of the reporting obligation is to provide the State with
regular opportunities to reflect on its compliance with human rights principles and
mobilize civil society on this reflexion. Moreover, reporting is also a legal obligation
linked to the free adhesion of a State to a treaty. FIDH notes that States do not delay their
reporting obligations nor deplore any « burden » in the arena of the struggle against
terrorism. This shows that state compliance with their reporting obligation highly
depends on the states’ political will to face its international commitments.
June 2005
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[1] See earlier FIDH position papers, Reforming the CHR: Safeguarding the mandate and
mechanisms of protection, and Progress, stifling silence, and calling into question the
protection mandate: lessons to be learned for reform (www.fidh.org).
[2] See FIDH report : les organes des traité, des mécanismes à renforcer, June 2003
FIDH
17, passage de la Main d’Or 75011 Paris, France - tel. +331 43 55 25 18, fax. +331 43 55 12 80
http://www.fidh.org – amadelin@fidh.org
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