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 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 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 downgrading protection
On the other hand, the ‘peer 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 denunce 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.
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 depolitization 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 favour 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 organising 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 behaviour they must assess - must be protected. Such level of independence does not apply with respect to independent human rights organizations, as those act similarly in the assessment of the implementation by States of their human rights obligations.
Financial indemnification for the exercice 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.
The reform of treaty bodies, launched several years ago, covers the systematisation and harmonization of working procedures and methods of various treaty bodies. FIDH welcomes these efforts inso far 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 follow-up 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 occurence, 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 up-date 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 againt terrorism. This shows that state compliance with their reporting obligation highly depends on the state’s political will to face its international commitments.