IV. RECOMMENDATIONS FOR REFORM OF THE UN COMMISSION ON HUMAN RIGHTS
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TechnoratiThe Commission has undergone numerous changes as part of a continuous effort for reform since its inception in 1946. These reforms have occasionally contributed to increasing the UN’s ability to deal with human rights issues. Other reforms, however, have compromised the Commission’s ability and autonomy, motivated as they were by the member states that see no benefit in the existence of an effective UN body possessing the capacity to protect human rights worldwide.
The most recent episode in this continuing process of reform is expected to mark an important shift in the development of UN human rights mechanisms and their future role. This new stage of reform began as part of a comprehensive review of the UN system. It aimed to assess the extent of the system’s effectiveness in realizing the objectives agreed upon by the signatories to the 1945 UN Charter.
This process started with Kofi Annan’s appointment as UN Secretary-General on 17 September 1996. In his appointment speech, Annan pledged to take steps towards reinforcing the effectiveness and efficiency of the organization. Annan’s first opportunity to present his reform proposals came a year after his appointment in his 1997 report “Renewing the UN: A Programme for Reform.”3 It included detailed suggestions for reform of the UN and announced the start of an in-depth dialogue on the issue.
In September 2000, the UN held the Millennium Summit, attended by a large number of Heads of State and Government, which resulted in the publication of the Millennium Declaration and Millennium Development Goals. Both documents contained a comprehensive list of pledges in the fields of human rights and development, including poverty reduction and realizing international safety and peace. An agreement was reached to work towards achieving the Millennium Development Goals by 2015, in addition to conducting an annual progress evaluation.
In 2002, in a step that aimed to link UN activities with the Millennium Development Goals, the UN Secretary-General issued a new list of reform propositions in his report “Strengthening of the United Nations: An Agenda for Further Change.”4 Support for human rights occupied a prominent place in the report.
This 2002 report was followed by a number of initiatives with more specific proposals to reform the UN Commission on Human Rights within the context of wider reform of the UN mechanisms. These initiatives will be discussed in detail below to show the process that led to the final proposal to establish a Human Rights Council (to be discussed at the September 2005 World Summit). A discussion of these various initiatives not only show the process towards creating a Human Rights Council but will also emphasize the shifts in Egypt’s position since the idea of establishing a Human Rights Council was first proposed. 5 This section will look in particular at: a) The Report of the High-Level Panel on Threats, Challenges and Change; b) The UN Secretary-General’s Report “In Larger Freedom”; c) The Secretary-General’s Speech before the Commission on Human Rights; d) The Plan of Action of the Office of the UN High Commissioner for Human Rights; e) Discussions on Reform by the Commission’s Member States; and f) The Next Step.
a) Report of the High-Level Panel on Threats, Challenges and Change
In 2003, as one of the initiatives designed to improve the efficiency of the UN, the UN Secretary-General established the High-Level Panel on Threats, Challenges and Change [Panel]. This Panel was comprised of sixteen high-profile individuals from around the world who were charged with analyzing how the UN could better respond to and counter the most pressing global problems and challenges. The Panel’s Egyptian member was Amr Moussa, Secretary-General of the League of Arab States, who acted in a personal capacity.
In December 2004, the Panel issued a report entitled “A More Secure World: Our Shared Responsibility.” 6 The report included a short section on the need to reform human rights instruments. This section appears a little detached and unrelated to the rest of the report, leading some commentators to suggest that the discussion of human rights was added after the completion of the first draft of the report.7 Regardless, the report made a number of proposals to help mitigate the crisis facing the Commission on Human Rights including reforming membership criteria and the process of selecting delegates, and suggesting the appointment of independent experts to assist with the functioning of the Commission.
The report emphasized in its introduction the significance of the crisis facing the Commission: “The Commission on Human Rights suffers from a legitimacy deficit that casts doubts on the overall reputation of the United Nations.” 8 This crisis is discussed in more detail later in the document, focusing particularly on the problem of membership, which the authors described as “the most difficult and sensitive issue relating to the Commission on Human Rights.”9 The report stated that:
In recent years, the Commission’s capacity to perform ... tasks has been undermined by eroding credibility and professionalism. Standard-setting to reinforce human rights cannot be performed by States that lack a demonstrated commitment to their promotion and protection. We are concerned that in recent years States have sought membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticize others. The Commission cannot be credible if it is seen to be maintaining double standards in addressing human rights concerns.10
Despite acknowledging the problems of membership, the Panel was unenthusiastic about existing proposals to solve this issue – such as establishing restrictive criteria for countries seeking to become Commission members. The Panel believed that such suggestions would further politicize the issue without contributing to a solution. Instead, the Panel proposed broadening the Commission’s membership to include the entire member list of the UN. The Panel argued that this solution would prevent any country from pretending to have a good human rights record on the basis of having been elected to the Commission. Such universal membership would also, the Panel stated, increase the Commission’s legitimacy and would ensure that the Commission focused more on substantive matters rather than allotting large portions of time to issues of membership.11
The proposition to make membership universal was subjected to widespread criticism and was later dismissed. Indeed, the proposal was in conflict with another section of the report which found that expanding the membership of the UN General Assembly had had a negative impact on its ability to function effectively.12
In addition to proposing universal membership, the Panel included other suggestions to help improve the work and credibility of the Commission. For example, the report called for a return to the practice that had existed during the first half of the Commission’s history where member states chose respected persons with experience and credibility in the field of human rights to lead these states’ delegations in the Commission.13
The report also proposed the establishment of an advisory group or committee that answered to the Commission. This group would consist of fifteen independent experts appointed on the basis of their skills, and taking into consideration geographical distribution. It would advise the Commission, assist in research, set standards and elaborate upon certain concepts. 14 The report did not, however, discuss whether this new group would interact with or simply replace the Commission’s Sub-Commission on the Promotion and Protection of Human Rights – a body comprised of twenty-six experts acting in a capacity similar to the suggested composition of the proposed advisory group. Overall, the proposition to establish a new advisory group was met with widespread opposition from a number of countries including Egypt. These countries feared that they would not be able to sufficiently control the appointment of the experts or their activities, unlike the members of the Sub-Commission who are nominated for membership by their own countries.15
The report concluded by proposing that member states should study the idea of upgrading the Commission on Human Rights to become a “Human Rights Council” that does not, as is presently the case, answer to the Economic and Social Council. Instead, the Human Rights Council would be a principal UN body on par with the Economic and Social Council and the Security Council. The Panel stated that such a step would reflect “the weight given to human rights, alongside security and economic issues, in the Preamble of the Charter.”16
b) The UN Secretary-General’s Report “In Larger Freedom”
On 21 March 2005, the UN Secretary-General issued his response to the High-Level Panel on Threats, Challenges and Change. This response appeared in the form of an important report entitled “In Larger Freedom: Towards Development, Security and Human Rights for All.”17
The report allotted limited space to human rights; however, it outlined the priorities of the UN as development, security and human rights. The report is divided into four main parts: “Freedom from Want,” “Freedom from Fear,” “Freedom to Live in Dignity,” and “Strengthening the United Nations.” Some of the propositions regarding human rights come under the heading “Freedom to Live in Dignity.” The discussion of the Commission on Human Rights is in Section V of the report, “Strengthening the United Nations.”
The Secretary-General began his discussion of the Commission on Human Rights by outlining its previous successes:
The Commission on Human Rights has given the international community a universal human rights framework, comprising the Universal Declaration on Human Rights, the two International Covenants and other core human rights treaties. During its annual session, the Commission draws public attention to human rights issues and debates, provides a forum for the development of United Nations human rights policy and establishes a unique system of independent and expert special procedures to observe and analyse human rights compliance by theme and by country. The Commission’s close engagement with hundreds of civil society organizations provides an opportunity for working with civil society that does not exist elsewhere.18
Overall, however, the Secretary-General reiterated the negative diagnosis of the Commission provided by the High-Level Panel on Threats, Challenges and Change. He placed particular emphasis on the crisis of membership:
Yet the Commission’s capacity to perform its tasks has been increasingly undermined by its declining credibility and professionalism. In particular, States have sought membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticize others. As a result, a credibility deficit has developed, which casts a shadow on the reputation of the United Nations system as a whole.19
The Secretary-General presented one clear recommendation: “to replace the Commission on Human Rights with a smaller standing Human Rights Council.” 20 Only in this way, declared the Secretary-General, would the UN “take the cause of human rights as seriously as those of security and development.”21 The creation of the Council would be an immediate measure and not a long-term one as proposed by the High-Level Panel on Threats, Challenges and Change.
The Secretary-General proposed that the Council should have a smaller membership than that of the Commission in its present form. These members should be directly elected to the Council by the General Assembly with a majority of two-thirds of the members. This membership would differ from the current system where elections are held within the Economic and Social Council according to the geographical location of its fifty-four members. While the Secretary-General did not set out specific criteria for Council membership, he emphasized that “those elected to the Council should undertake to abide by the highest human rights standards.”22 Member states should determine whether the new Council would be a subsidiary body of the General Assembly or an independent organization on par with the General Assembly.
c) The Secretary-General’s Speech Before the Commission on Human Rights and his Explanatory Note on the Human Rights Council
On 7 April 2005, the Secretary-General of the UN gave a speech in Geneva at the annual meeting of the Commission on Human Rights, where he expanded on his recommendation to establish a Human Rights Council. 23 In his speech, the Secretary-General reiterated the strengths of the Commission in its present form, and the successes it had achieved throughout its history. He also restated his conclusions from the report “In Larger Freedom” that the Commission was currently facing a crisis and that there were certain areas in particular where it was falling short. The Secretary-General emphasized that any new human rights body would have to maintain the strengths that had characterized the Commission’s work. In this regard, the Secretary-General mentioned two specific points: the Commission’s intimate relationship with civil society organizations, and its special procedures represented by Independent Experts, Special Rapporteurs and Working Groups. However, the Secretary-General also recommended that the Council should adopt new mechanisms so that it could function more effectively than the Commission.
Most significantly, the Secretary-General recommended, for the first time, that the new Council should have “an explicitly defined function as a chamber of peer review.” 24 The main role of the Council’s peer review mechanism would be
to evaluate the fulfilment by all States of all their human rights obligations. This would give concrete expression to the principle that human rights are universal and indivisible. Equal attention will have to be given to civil, political, economic, social and cultural rights, as well as the right to development. And it should be equipped to give technical assistance to States, and policy advice to States and UN bodies alike. Under such a system, every Member State could come up for review on a periodic basis. Any such rotation should not, however, impede the Council from dealing with massive and gross violations that might occur. Indeed, the Council will have to be able to bring urgent crises to the attention of the world community.25
By subjecting all states on an equal basis to periodic supervision, the Council could eradicate the politicization and double standards that had existed at the Commission, where only certain, less influential, states were submitted to supervision.
On 14 April 2004, the Secretary-General presented an Executive Report to the UN General Assembly in which he attempted to answer the most important questions that were raised concerning the details of the proposed Human Rights Council.26 In this document, the Secretary-General justified the proposal to establish a new Council by saying that the proposed structure would “offer architectural and conceptual clarity, since the United Nations already has Councils that deal with two other main purposes – security and development.”27
The Secretary-General focused on the importance of establishing a Council that was a standing body that was capable of meeting “regularly and at any time to deal with imminent crises and allow for timely and in-depth consideration of human rights issues.” 28 The permanent presence of the Council would “allow more time for substantive follow-up on the implementation of decisions and resolutions.”29 Importantly, it would also allow member states “to come together and take action when serious human rights situations develop.” 30 In addition, by meeting on a regular basis, the Council could avoid the problems associated with the Commission’s “politically charged six-week session.” The Secretary-General proposed that the new Council should be based in Geneva, but with a strong presence in New York to allow it to better interact with the General Assembly, the Security Council, and the Economic and Social Council.32
The Secretary-General reiterated his suggestion that members should be directly elected by a majority of two-thirds of the General Assembly, adding that:
Being elected by the entire membership of the General Assembly would make members more accountable and the body more representative. And being elected directly by the General Assembly – the principal United Nations legislative body – would also have greater authority than the Commission, which is a subsidiary body of the Economic and Social Council.33
The membership of the new Council should, stated the Secretary-General, be smaller than the Commission in its present form because a “smaller membership on the Human Rights Council would allow more focused discussion and debate.”34 The most prominent supporter of this recommendation is the United States, although it is opposed by a large number of states and NGOs. In addition to the Council continuing to play a central role in supervising and developing international legal human rights standards, the Secretary-General reiterated the importance of creating a potential peer-review mechanism that would allow for “universal scrutiny, that is, that the performance of all Member States in regard to all human rights commitments should be subject to assessment by other States.”35 The Secretary-General proposed that the Office of the High Commissioner could collect information that would form the basis for review of each country’s human rights situation in order to create “a system of peer review that is fair, transparent and workable, whereby States are reviewed against the same criteria.” 36 By ensuring in this way that states are scrutinized and held more accountable, Council membership would be converted from a privilege into a responsibility.
In conclusion, the Secretary-General called upon member states to agree to replace the Commission with the Council in the documents emerging from the September Summit, although details concerning its size, composition and formation would be deferred until after this date.
d) The Plan of Action of the Office of the UN High Commissioner for Human Rights
In his report “In Larger Freedom,” the UN Secretary-General asked the then United Nations High Commissioner for Human Rights, Louise Arbour, to present him with a plan of action clarifying how her Office could overcome its severe lack of resources and better achieve its goals.37 In May 2005, the High Commissioner presented a document entitled “The OHCHR Plan of Action: Protection and Empowerment,”38 which included wide-ranging and creative concepts for the future role of the Office of the High Commissioner, and for its relationship with the other UN bodies, including the Commission on Human Rights.
As in the other documents discussed above, the High Commissioner began by discussing the charges leveled at the Commission on Human Rights of “selectivity, double standards, politicization, and obstructive regional divisions.”39 The High Commissioner supported the proposal to replace the Commission with a Human Rights Council noting that:
It is essential that a new body find effective means to carry out its supervisory responsibilities, and this will necessarily entail some system for measuring States’ human rights obligations against their actual practice. The present system for country scrutiny in the Commission is, all agree, unsatisfactory. At the same time, there must be some system in place for considering the actual human rights situation in countries.40
The High Commissioner strongly supported the Secretary-General’s proposal to introduce a peer-review mechanism, both in the new Human Rights Council or in the Commission on Human Rights if the latter is preserved and reformed. She also emphasized the importance of reaching an agreement on the details of this peer-review mechanism, including its method of operation and the means of distinguishing it from states’ obligation to present periodical reports to UN committees. 41
e) Discussions on Reform
The reform initiatives presented above, especially the report of the High-Level Panel on Threats, Challenges and Change, and the Secretary-General’s report, have been subject to numerous discussions by member states, and have therefore been modified from their original format.
On 12 April 2005, during the annual session of the Commission on Human Rights, the Commission’s member states decided to devote half a working day to hold an unofficial consultation session on the proposals for reform of the Commission. A number of states and regional groups presented reports commenting on the suggestions for reform. Some NGOs were also given an opportunity to express their initial responses to the proposed reforms. However, the session ended without arriving at any conclusions. This lack of decision making was a result of the newness of the suggestions, and the limited time afforded to the delegations to form an opinion after discussing the proposed changes with their respective capitals.
During the session, the African group attempted to pass a resolution to form a governmental working group with open membership to convene for five days when the Commission was not in session in order to discuss and reach a decision about the proposals for reform. The Commission would then hold an extraordinary meeting for one day to discuss the findings of the working group. A number of states opposed this proposal on the grounds that the reform-related discussions already in session in New York would be confused and dissipated by the initiation of a parallel route in Geneva.42 However, the decision was finally adopted by a majority of thirty-four to fifteen, with four states abstaining.43
However, when the resolution was brought to the Economic and Social Council in New York, it did not receive sufficient support; instead, the Council adopted a resolution calling upon the current chair of the Commission on Human Rights to organize another unofficial consultation session – lasting no longer than two days – to discuss the reform proposals and subsequently present a report on their discussions to the President of the Council, without calling for the Commission to convene.44 This unofficial consultation session was held by the Commission in Geneva on 20 June 2005, and a report was presented to the President of the Economic and Social Council who presented it in turn to the President of the General Assembly.
Concurrently in New York, the General Assembly had convened four unofficial consultation sessions in April 2005, each devoted to discussion of a section of the Secretary-General’s report. These sessions (in which Egypt was a participant, as will be seen below), as well as side discussions with member states, resulted in the first draft of the concluding document of the high-level summit which will be held in September. The document, distributed within the General Assembly to its members by its President on 3 June 2005, contained a compilation of the most important reform issues that will form the basis for future negotiations between member states. The document includes the proposed replacement of the Commission on Human Rights with a permanently convened Human Rights Council.45
The General Assembly held more unofficial consultations on the draft throughout June and the second draft was published on 22 July.46 After a new round of consultations, the final draft was issued on 5 August 2005. This draft outlines the most recent group of suggestions for UN reform, including the suggestion for forming the Human Rights Council.
The final draft contains numerous sections related to human rights. These include a pledge by Heads of State and Governments, who are scheduled to attend the Summit, to respect human rights and basic freedoms without discrimination, and to work towards strengthening the mechanisms of human rights within the UN. The overall goal is to ensure the enjoyment of all human rights: civil, political, economic, social and cultural. World leaders pledged in the document to strengthen and support the Office of the High Commissioner for Human Rights, and to reform the human rights treaty-body system.
The section concerning the Human Rights Council contained a large number of suggestions, including those proposed in the months prior to drafting the document. The latest text includes a pledge to form a permanent committee as a replacement for the Commission on Human Rights, while preserving the special mechanisms of independent experts, and upgrading it to become a body that answers to the General Assembly. Furthermore, it proposes that the General Assembly should decide within five years whether the Commission’s replacement will become one of the UN’s principal organs, equal to the General Assembly, the Security Council and the Economic and Social Council.
The draft document describes the tasks that would be performed by the Human Rights Council which include:
1) supporting and protecting human rights by making recommendations to the General Assembly with a view towards developing international law in this field;
2) supervising programs of technical assistance and capacity-building for member states in this field;
3) coordinating with different UN mechanisms and bodies regarding human rights; and
4) discussing emergency or continuing human rights crises.
All of these duties are currently performed by the Commission on Human Rights during its annual session.
The final draft of the document states that the Human Rights Council should be established on a permanent basis, and should also include the new peer-review mechanism which would function in the manner suggested by the Secretary-General in his explanatory note to the General Assembly.
The draft document also suggests that the membership of the Council should be comprised of between thirty and fifty states, elected for a three-year period by two-thirds of the General Assembly members. The elections should take into account geographical balance and the state’s contribution to strengthening and protecting human rights. Also, if states elected to member status have not been reviewed by the peer-review mechanism before their election, then they should agree to be evaluated under the peer-review system during their membership term.
f) The Next Step
A new round of consultations is scheduled to be held at the General Assembly in New York on 22 August 2005 to make final amendments to the concluding document for the September Summit. This process will eventually result in the publication of the final draft of the document. Consultations concerning the document are expected to last until the Summit convenes during the period from 14-16 September with participation by world leaders.
After the final document is ratified in September, consultations on the functioning, procedures and duties of the new Council will continue until the end of the General Assembly annual meeting on 31 December 2005, as will the debate on the transitional procedures to transform the Commission on Human Rights into the Human Rights Council.
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3- UN Secretary-General Kofi Annan, “Renewing the UN: A Programme for Reform,” UN Doc. A/51/950 (14 July 1997).
4- Secretary-General Kofi Annan, “Strengthening of the United Nations: An Agenda for Further Change: Report of the Secretary-General,” UN Doc. A/57/387 (9 Sept. 2002)
5- The following sections are based largely on International Service for Human Rights, “A Guide to the United Nations Reform Process,” available at: www.ishr.ch
6- “A More Secure World: Our Shared Responsibility – Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change,” UN Doc. A/59/565 (2 Dec. 2004)
7- International Service for Human Rights, “A Guide to the United Nations Reforms Process,” p. 2, available at www.ishr.ch
8- “A More Secure World: Our Shared Responsibility – Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change,” UN Doc. A/59/565 (2 Dec. 2004), p. 14
9- Ibid., para. 285, p. 74
10- Ibid., para. 283, p. 74
11- Ibid., para. 285, p. 74
12- See Ibid., paras. 249-256, pp. 66-68 (discussing limited expansion of the Security Council membership and no expansion of veto power). Criticisms of the Panel’s suggestion for universal membership include Human Rights Watch, “U.N.: Good Diagnosis, but Poor Prescription” (2 Dec. 2004)
13- “A More Secure World: Our Shared Responsibility – Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change,” UN Doc. A/59/565 (2 Dec. 2004), para. 286, p. 74
14- Ibid., para. 287, pp. 74-75
15- See the Oral Statement made by Egypt’s delegation at the 61st session of the Commission on Human Rights regarding the work of the Sub-Commission on the Promotion and Protection of Human Rights (15 Apr. 2005) severely criticizing the idea of creating an advisory board of independent experts.
18-Ibid., para. 181, p. 45
19-Ibid., para. 182, p. 45
20-Ibid., para. 183, p. 45
21-Ibid
22-Ibid., para. 183, p. 46
24-Ibid
25-Ibid
27-Ibid., para. 1, p. 1
28- Ibid., para. 4, p. 2
29-Ibid
30- Ibid., para. 11, p. 4
31- Ibid., para. 4, p. 2
32- Ibid., para. 5, p.
33- Ibid., para. 4, p. 2
34- Ibid., para. 13, p. 5
35- Ibid., para. 8, p. 3
36- Ibid
37- Ibid., para. 145, p. 38
39- Ibid., para. 4, p. 6
40- Ibid., para. 91, p. 22
41- Ibid., para. 93, p. 22
42- International Service for Human Rights, “A Guide to the United Nations Reforms Process,” p. 6, available at www.ishr.ch
43- Office of the High Commissioner for Human Rights, “Proposed Reform of the Secretary General
in the Area of Human Rights,” UN Doc. 2005/116 (22 Apr. 2005)
45- See ReformtheUN.org, “General Assembly President’s Draft Outcome Document” (June 2003)
46- See ReformtheUN.org, “Revised Draft Outcome Document” (22 July 2003)
