9 Human Rights Council; Birth of the Human Rights Council – Comparison between Human Rights Commission and Human Rights Council

Dr. Y R S Murthy

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Table of Contents

1. Learning Outcomes

2. Introduction: From Commission to Council

3. Sessions

4. Membership of the Human Rights Council: Composition

5. Salient Features of Council

6. Main Objectives of the Council

7. Mandate and Functions of the Human Rights Council 7.1 Protection and Prevention

7.2 Promotion

7.3 Coordination and Mainstreaming of Human Rights

7.4 Working with Stakeholders

8. Relationship with High Commissioner (OHCHR)

9. Relationship with NGOS

10. Institutional Structure of the Council

10.1 Universal Periodic Review Mechanism

10.2 Special Procedures

10.3 Human Rights Council Advisory Committee

(i) Background information on the Advisory Committee

(ii) Mandate & Functions

(iii) Membership

10.4 Complaints Procedure

(i) Two distinct working groups

(ii) Criteria for a communication to be accepted for examination

11. Comparison between Human Rights Commission and Human Rights Council

12. Critical Analysis of the Council

 

Learning Outcomes

  • To give students an overview of the structure, composition, functions, and various institutional mechanisms of the United Nations Human Rights Council
  • By the end of the module, students will have an understanding of the role, achievements and shortcomings of the Human Rights Council

Introduction: From Commission to Council

The High Level Panel on Threats, Challenges and Change constituted by UN Secretary-General Boutros Boutros-Ghali in 2003 recommended a series of reforms to strengthen the Human Rights Commission. In their report, the following changes were suggested in the working and structure of the Commission:

  • Membership of the Commission on Human Rights be expanded to universal membership.
  • All members of the Commission on Human Rights designate prominent and experienced human rights figures as the heads of their delegations.
  • The Commission on Human Rights should be supported in its work by an advisory council or panel comprising of 15 individuals, independent experts who will be appointed for their skills for a period of three years, renewable only once.
  • The High Commissioner be called upon to prepare an annual report on the situation of human rights worldwide.

In March 2005, in his report ‘In Larger Freedom’, UN Secretary-General Kofi Annan declared that “If the United Nations is to meet the expectations of men and women everywhere – and indeed, if the Organization is to take the cause of human rights as seriously as those of security and development”, then Member States should replace the Commission on Human Rights with a stronger Human Rights Council. Detailing his proposal, the Secretary-General called for a thorough reassessment of the effectiveness of UN intergovernmental machinery in addressing human rights concerns in April 2005. He made specific recommendations ahead of the World Summit convened in September 2005 regarding the mandate and function of the new Council as well as on its size, composition and place in the UN hierarchy. At the 2005 World Summit, the fundamental importance of human rights as the “third pillar” (alongside peace and security and economic and social development) of the Organization was reaffirmed. The Summit agreed to create a new Human Rights Council and approved to double the budget of the UN human rights programme.

Paragraphs 158 and 159 of the Summit outcome document spell out clearly the Council’s main role viz.

  • Promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner.
  • Address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon.
  • Mainstreaming of human rights within the United Nations system.

This was something of a surprise. The preceding High Level Panel report on which the proposals were built focused in its recommendations on strengthening the role of the High Commissioner for Human Rights. It had considered the option of reform or replacement of the Commission but opted for the former. The idea of the creation of a Human Rights Council was considered a long-term option.

Figure: More than 170 world leaders who attended the World Summit at UN Headquarters in New York  in  September 2005.

The Human Rights Council was created as a result of numerous discussions held at the 2005 World. On 15 March 2006, after months of difficult negotiations, the General Assembly adopted Resolution 60/251 establishing the Human Rights Council. On 22 March 2006, ECOSOC voted to dissolve the Commission on Human Rights. On 27 March 2006 the Commission concluded its 62nd brief and final session in Geneva. On 9 May 2006, the General Assembly elected the first 47 members of the Council. The new Human Rights Council held its inaugural session in Geneva from 9-30 June 2006. In its first session the Council approved two new instruments, namely, the International Convention for the Protection of All Persons from Enforced Disappearance as well the United Nations Declaration on the Rights of the Indigenous People.

3. Sessions

The Human Rights Council holds no fewer than three regular sessions a year, for a total of at least ten weeks. They take place in March (four weeks), June (three weeks) and September (three weeks). If one third of the UN Member States request, the Human Rights Council can decide at any time to hold a special session to address human rights violations and emergencies. The HRC conducted its 28th Regular Session in 2015. The 23rd Special Session of the Council was held on 1 April 1 2015. This Special Session focused mainly on terrorist group Boko Haram. It reflected the recent stand of the Council against terrorism.

Composition of the Human Rights Council

The Council is made of 47 Member States, which are elected by the majority of members of the General Assembly of the United Nations through direct and secret ballot. The General Assembly takes into account the candidate States’ contribution to the promotion and protection of human rights, as well as their voluntary pledges and commitments in this regard. An additional consideration should be whether the given candidate country can meet the obligations of Council membership, which include (a) “to uphold the highest standards in the promotion and protection of human rights” and (b) to “fully cooperate with the Council”. The General Assembly has the right to suspend the rights and privileges of any council member that it decides has persistently committed gross and systematic violations of human rights during its term of membership. This process of suspension requires a two-thirds majority vote by the General Assembly.

The Council’s Membership is based on equitable geographical distribution. Seats are distributed as follows:

  1. African States: 13 seats
  2. Asia-Pacific States: 13 seats
  3. Latin American and Caribbean States: 8 seats
  4. Western European and other States: 7 seats
  5. Eastern European States: 6 seats

Members of the Council serve for a period of three years and are not eligible for immediate re-election after serving two consecutive terms. The Bureau of the Council consists of five people – the President and four Vice-Presidents – representing the five regional groups. They serve for a year, in accordance with the Council’s annual cycle.

Salient Features of the Council

  • A ‘universal periodic review’ ensures that all 191 member states of the United Nations, starting with the members of the Council itself, will have their records examined in order to improve human rights conditions worldwide. The objective is to ensure that all states must be held accountable for their shortcomings.
  • The council holds more meetings throughout the year and for longer and total duration than the Commission on Human Rights. It will also have a simplified and more efficient mecahnism to convene special sessions to respond promptly to human rights crises.
  • As the Council is elected directly by the General Assembly, the new body reflects the high level of importance given to human rights as something belonging to all people and, alongside development and security, one of the three pillars of the United Nations.
  • Any Council member who commits gross and systematic violations of human rights can have its rights of membership suspended by a two-thirds majority of the General Assembly.
  • The first election of members to the Council on 9 May 2007was the first indication that the new Council was not engaged in ‘business as usual’. Countries competed for seats in an open and fair eelction, and for the first time ever, candidates put forward voluntary pledges and comments to promote and uphold human rights to which they will be held accountable.

Main Objectives of the Council

The Council is responsible for promoting universal respect for and protection of all human rights and fundamental freedoms for all. It will address violations, promote human rights assistance and education, help develop international human rights law, review the human rights records of member States, work to prevent abuses, respond to emergencies, and serve as an international forum for dialogue on human rights issues.

Mandate and Functions of the Human Rights Council

Resolution 60/251 of the General Assembly is the constitutional basis of the Human Rights Council and sets out its mandate. The resolution requires that the Council’s work “shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation with a view to enhance the promotion and protection of all human rights. . . .”

7.1 Protection and Prevention

The Council has an explicit responsibility to protect. It is responsible “for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner.” Its protection role extends to prevention. The Council is required to “contribute, through dialogue and cooperation, towards the prevention of human rights violations and respond promptly to human rights emergencies”. The Council’s protection mandate also requires it to “address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon”.

7.2 Promotion

The Council’s promotion mandate largely codifies the practice of the former Commission.

It provides that the Council shall, inter alia:

  • (a) Promote human rights education and learning as well as advisory services, technical assistance and capacity-building, to be provided in consultation with and with the consent of Member States concerned;
  • (b) Serve as a forum for dialogue on thematic issues on all human rights;
  • (c) Make recommendations to the General Assembly for the further development of international law in the field of human rights;
  • (d) Promote the full implementation of human rights obligations undertaken by States and follow-up to the goals and commitments related to the promotion and protection of human rights emanating from United Nations conferences and summits;
  • (e) Undertake a universal periodic review, based on objective and reliable information, of the fulfilment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States; the review shall be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity-building needs; such a mechanism shall complement and not duplicate the work of treaty bodies; the Council shall develop the modalities and necessary time allocation of the universal periodic review mechanism within one year after the holding of its first session;
  • (f) Assume the role and responsibilities of the Commission on Human Rights relating to the work of the Office of the United Nations High Commissioner for Human Rights, as decided by the General Assembly in its resolution 48/141 of 20 December 1993;
  • (g) Work in close cooperation in the field of human rights with Governments, regional organizations, national human rights institutions and civil society;
  • (h) Make recommendations with regard to the promotion and protection of human rights;
  • (i) Submit an annual report to the General Assembly.

7.3 Coordination and Mainstreaming of Human Rights

The World Summit Outcome document directed the Council to “promote effective coordination and the mainstreaming of human rights within the United Nations system”. This role is now incorporated in Resolution 60/251. The Council has yet to address this aspect of its mandate. The goal of mainstreaming of human rights throughout the activities of United Nations is also given to the UN High Commisssioner for Human Rights.

7.4 Working with Stakeholders

The Council has to work in close cooperation with ‘Governments, regional organisations, national human rights institutions and civil society.

8. Relationship with High Commissioner (OHCHR)

The Council assumed the same role and responsibilities of the Commission on Human Rights relating to the work of the Office of the High Commissioner. As such, the High Commissioner retains his/her independent role under his/her separate General Assembly mandate, and the Office of the High Commissioner provides the substantive secretariat for the Council, and cooperates closely with the Council in promoting and protecting human rights.

9. Relationship with NGOS and National Human Rights Institutions (NHRIs)

Observers, including non-governmental organizations, intergovernmental organizations, national human rights institutions and specialized agencies, participate in the Council through the same arrangements and practices that applied to the Commission.

Pursuant to Resolution 60/251 and ECOSOC Resolution 1996/31, the participation of NGOs in the Human Rights Council is similar to the role played by them within the Commission on Human Rights.

Accreditations

NGOs in consultative status with ECOSOC wishing to accredit representatives can send requests to the Secretariat of the Council.

NGO written statements

As under the Commission on Human Rights, NGOs in consultative status with ECOSOC will be able to submit written statements relevant to the work of the Human Rights Council (in accordance with paragraphs 36 and 37 of ECOSOC resolution 1996/31).

NGO parallel events

As with the Commission on Human Rights, NGOs can organize parallel events of relevance to the work of the Human Rights Council.

NGOs also participate in the interactive dialogue with Special Procedures and have an explicit input into the UPR, including an opportunity to speak during the consideration of the final outcome of the review by the plenary session of the Council. NHRI participation had grown significantly over the final years of the Commission.

10. Institutional Structure of the Council

The Presidential text entitled ‘UN Human Rights Council: Institutional Building’ lays out the basic structure for the Council’s institutional machinery, including the Universal Periodic Review Mechanism, the Special Procedures, the Human Rights Council Advisory Committee, and the Complaints Procedure. It also sets out an agenda and framework for a programme of work, and lays down the Rules of Procedure for the Council.

10.1 Universal Periodic Review Mechanism

The Universal Periodic Review “has great potential to promote and protect human rights in the darkest corners of the world.” – Ban Ki-moon, UN Secretary-General.

The Universal Periodic Review (UPR) is a unique process, which involves a review of the human rights records of all UN Member States. The UPR is a State-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations. As one of the main features of the Council, the UPR is designed to ensure equal treatment for every country when their human rights situations are assessed. The periodicity of the first review cycle was of four years. The duration of the review was three hours in the Working Group. The State concerned, Member States, and observer States are given the opportunity to express their views on the outcome of the review before the plenary takes action on it. In considering the outcome of a Universal Periodic Review, the Council decides if and when any specific follow-up will be necessary.

The UPR was created through the UN General Assembly on 15 March 2006 by resolution 60/251, which established the Human Rights Council itself. It is a cooperative process which, by October 2011, had reviewed the human rights records of all UN Member States. Currently, no other universal mechanism of this kind exists. The UPR is one of the key elements of the Council, which reminds States of their responsibility to fully respect and implement all human rights and fundamental freedoms. The ultimate aim of this mechanism is to improve the human rights situation in all countries and address human rights violations wherever they occur. Right now the second cycle of the UPR is going on from 2012-2016. India was reviewed in 2012 under the second cycle of UPR.

10.2 Special Procedures

Regarding the appointment of Special Procedures mandate-holders, due consideration is given to gender balance and equitable geographic representation, as well as to an appropriate representation of different legal systems. The Council approved technical and objective requirements for eligible candidates for mandate-holders at its sixth session. A mandate-holder’s tenure in a given function, whether thematic or country mandates, is no more than six years. A Consultative Group has been established to propose to the President a list of candidates for consideration. The appointment of the Special Procedures requires the approval of the Council. Thematic mandates periods are three years. Country mandates periods are one year. Decisions to create, review or discontinue country mandates take into account the principles of cooperation and genuine dialogue aimed at strengthening the capacity of Member States to comply with their human rights obligations.

 

10.3 Human Rights Council Advisory Committee

i) Background information on the Advisory Committee

Pursuant to Council resolution 5/1, paragraphs 65 to 84, the Human Rights Council Advisory Committee has been established to function as a think-tank for the Council and work at its direction. The Committee held its first meeting in August 2008. It meets twice a year, for one week in February immediately before the March session of the Council and for one week in August.

ii) Mandate and Functions

  • The Advisory Committee provides expertise to the Council in the manner and form requested by it. It mainly focuses on studies and research-based advice.
  • The Committee may also propose within the scope of the work set out by the Council, for the latter’s consideration and approval, suggestions for further research proposals.
  • In its work, the Committee should be implementation-oriented and the scope of its advice should be limited to thematic issues pertaining to the mandate of the Council, namely promotion and protection of all human rights.
  • It shall not adopt resolutions or decisions.

iii) Membership

The Committee is composed of 18 independent experts from different professional backgrounds representing the various regions of the world (5 from African States; 5 from Asian States; 2 from Eastern European States; 3 from Latin American and Caribbean States; and 3 from Western European and other States). Experts are nominated by Governments and elected by the Council. Elections normally take place at the September session of the Council.

At the twenty-seventh session in September 2014, elections were held for seven seats, two from African States, two from Asian States, one from Eastern European States, one from Latin American and Caribbean States and one from Western European and other States.

Members serve for a period of three years and may be re-elected once. Their term of membership starts on 1 October of the year of their election.

 

Figure: Advisory Committee Members 2015. The present composition of the Advisory Committee

– with an indication of the expiration of the term of membership in brackets is as follows: Saeed Mohamed Al Faihani (Bahrain, 2015); Mohamed Bennani (Morocco, 2017); Laurence Boisson de Chazournes (France, 2017); Mario Luis Coriolano (Argentina, 2015); Laura Craciunean (Romania, 2017); Hoda Elsadda (Egypt, 2016); Karla Hananía de Varela (El Salvador 2016); Mikhail Lebedev (Russian Federation, 2016); Alfred Ntunduguru Karokora (Uganda, 2016); Kaoru Obata (Japan, 2016); Obiora Chinedu Okafor (Nigeria, 2017); Katharina Pabel (Austria, 2015); Anantonia Reyes Prado (Guatemala, 2017); Changrok Soh (Republic of Korea, 2017); Ahmer Bilal Soofi (Pakistan, 2017); Imeru Tamrat Yigezu (Ethiopia, 2015); Yishan Zhang (China, 2016); and Jean Ziegler (Switzerland, 2016).

10.4 Complaint Procedure

On 18 June 2007, the Human Rights Council adopted resolution 5/1 entitled “Institution-Building of the United Nations Human Rights Council” by which a new complaint procedure was established to address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances.

The complaint procedure addresses communications submitted by individuals, groups, or non-governmental organizations that claim to be victims of human rights violations or that have direct, reliable knowledge of such violations.

Like the former 1503 procedure, it is confidential, with a view to enhancing cooperation with the State concerned. The new complaint procedure has been improved, where necessary, to ensure that the procedure be impartial, objective, efficient, victims-oriented and conducted in a timely manner.

Pursuant to paragraph 94 of resolution 5/1, the Chairperson of the Working Group on Communications, together with the Secretariat, undertakes an initial screening of communications based on the admissibility criteria set in paragraphs 85 to 88 of resolution 5/1. Manifestly ill-founded and anonymous communications are screened out. Communications not rejected in the initial screening are transmitted to the State concerned to obtain its views on the allegations of violations. Both the author of a communication and the State concerned are informed of the proceedings at each stage.

Two  distinct  working  groups  –  the Working  Group  on  Communications and the Working Group on Situations – are responsible, respectively, for examining written communications and bringing consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms to the attention of

the Council.

ii) Criteria for a communication to be accepted for examination:

 

A communication related to a violation of human rights and fundamental freedoms is admissible, provided that:

  • It is not manifestly politically motivated and its object is consistent with the Charter of the United Nations, the Universal Declaration of Human Rights and other applicable instruments in the field of human rights law;
  • It gives a factual description of the alleged violations, including the rights which are alleged to be violated;
  • Its language is not abusive. However, such a communication may be considered if it meets the other criteria for admissibility after deletion of the abusive language;
  • It is submitted by a person or a group of persons claiming to be the victims of violations of human rights and fundamental freedoms, or by any person or group of persons, including non-governmental organizations, acting in good faith in accordance with the principles of human rights, not resorting to politically motivated stands contrary to the provisions of the Charter of the United Nations and claiming to have direct and reliable knowledge of the violations concerned. Nonetheless, reliably attested communications shall not be inadmissible solely because the knowledge of the individual authors is second-hand, provided that they are accompanied by clear evidence;
  • It is not exclusively based on reports disseminated by mass media;
  • It does not refer to a case that appears to reveal a consistent pattern of gross and reliably attested violations of human rights already being dealt with by a special procedure, a treaty body or other United Nations or similar regional complaints procedure in the field of human rights;
  • Domestic remedies have been exhausted, unless it appears that such remedies would be ineffective or unreasonably prolonged.

National human rights institutions, established and operating under the Principles Relating to the Status of National Institutions (the Paris Principles), in particular in regard to quasi-judicial competence, may serve as effective means of addressing individual human rights violations.

10.5 Social Forum and the Minorities Forum

The Council has decided that the Social Forum, an initiative of the former Sub-commission, will continue to be convened. The Forum is designed to allow dialogue about global poverty themes between the UN human rights system as well as relevant UN agencies and grass roots civil society. The Forum meets once a year. Also, the Working Group of Minorities has been replaced by the Forum on Minority Issues. The Forum meets once each year. Its mandate is directed at promoting dialogue and co-operation on minority issues as well as the further implementation of the UN Declaration on Minorities.

11. Comparison between the Human Rights Commission and the Human Rights Council

Firstly, the Commission was a subordinate body of ECOSOC whereas the Council is a subsidiary organ of the General Assembly. It is hoped that one day the Council will become a full UN organ and will one day work alongside ECOSOC, the Security Council, etc.

Secondly, there was difference between election of members and standards to be met by candidate states. Members of the Council are to be elected for the allocated regional distribution of seats ‘directly and individually’ by secret ballot and by a simple majority of the General Assembly’s 193 members. For the first time ever, candidates gave voluntary commitments to promote and uphold human rights, and will be expected to meet them or else face possible suspension from the Council.

The Commission’s membership had been elected by the smaller electorate of ECOSOC with its 54 members and was often agreed upon without election from previously agreed regional “clean slates” of candidates. The Commission’s members were really selected behind closed doors and then “elected” by acclamation. It led to the selection of States with questionable human rights records and Commission was criticized on this ground. When electing members of the Council, States are directed to weigh candidate States’ human rights records and voluntary pledges that they have made on improving national human rights protection. No such mandates existed for Commission. The resolution establishing the Council also stresses the importance of ending double standards, a problem that plagued the past Commission. Thus, the Council will also have a new universal periodic review mechanism, which will offer the Council – and the world – the opportunity to examine the records of all Member States of the United Nations. Unlike before, no country can escape scrutiny. This promises to be a very powerful tool for human rights advocates worldwide.

Thirdly, no State can be elected for more than two terms without leaving the Council. It was adopted to put an end of Commission’s earlier practice, whereby the Permanent Five on the Security Council would be assured of a seat. The USA initially opposed this measure and did not stand in election in 2007 and 2008 thereby announcing an effective withdrawal from the Council. However, the USA later on changed its position and got elected to the Council.46 India has been recently re-elected to the Council for the period of 2015-17.

Fourthly, in addition, the Council will meet throughout the year, whereas the Commission’s limited six-week schedule severely impaired its effectiveness and flexibility. With this precious additional time, the Council will be able to undertake preventive initiatives to defuse simmering crises, and to respond quickly to emerging human rights crises.

While the old Commission met only once per year in a single six-week session, the Human Rights Council will hold no fewer than three sessions per year (including a main session) for a total period of no less than ten weeks. The Geneva-based Council will also be able to convene to deal with urgent situations, and to hold special sessions when necessary. Importantly, any Council member can call for a special session, and the support of only one-third of the Council membership is required to authorize the sitting.

There are certain other differences between Human Rights Council and Commission which are addressed in the table below:

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Reference

  1. Kevin Boyle, New Institutions for Human Rights Protection, 1-70 (European University Institute, 2009)
  2. YSR Murthy, Human Rights Handbook
  3. UN Resolution No A/Res/60/251, para 7
  4. GA/Res/60/251, 15 March 2006
  5. ECOSOC Res 2006/2, 22 March 2006
  6. Commission on Human Rights Report on the Sixty-Second Session, E/CN.4/2006/122, 13-27 March 2006