1.Assessment
FIDH’s assessment of the CHR is that it is not operating according to its mandate. States responsible for serious human rights violations have effectively invested the body in order to influence the exercise of its mandate in a restrictive and backward manner. This influence is characterized by the no-action motions presented by countries like China, Zimbabwe etc. The presence of human right lawyers is not recommended at the time of the adoption of the no-action votes under the applause of the accomplice states; the atmosphere is deleterious.
These states have already won several battles: after the weakening of the mandate of the human rights Sub-Commission that can no longer pronounce itself on country situations, the calling into question of the resolutions under item 9 in relation to country situations of grave violations of Human rights, and the infiltration of the NGO segment by the « governmental NGOs ». Their last battle, the 2005 "cru" is a proposition, led by the Asian Group, to «reform» the selection and working methods of the special rapporteurs and other mechanisms created by the Commission, in order to neutralize the last pillars of independence and efficiency of this body. The next target has been identified, the steamroller is moving forward.
2.The stakes
Although these conclusions are devastating, the mandate and the protection attributes of the Commission must be saved and strengthened. Indeed, a universal system of unique protection is at stake. In the face of serious increases of flagrant human rights violations and the impossibility of denouncing these directly in certain countries, the only hope for victims, their families or their defendants are the sanctions and the pressures of the international community, and the surveillance mechanisms that can be implemented to better fight such violations. The forty or so independent mechanisms created by the Commission for almost forty years, react every day to claims of victims and NGOs by questioning, in relation thereto, the relevant states. It is exactly this that they hope to neutralize in favor of the reform process engaged for several years.
In this context, FIDH approves the propositions of Kofi Annan, as particularly daring and elevating the debate. Nonetheless, insofar as the new reform process must be approved by the state members of the UN, there is cause for concern. The reform that tends towards the objective of increasing credibility - however necessary - must not become a new occasion - a pretext - to reduce even further the Commission’s protective capacities over the victims.
Although the « reforms » remain justified insofar as they aim to reduce the shocking abuses characteristic of a political organ such as the Commission on Human Rights, more than a new reform, FIDH emphasizes that it is the political will of the constituent states of the Commission to exercise its mandate that is lacking. The credibility of an institutional reform shall consequently depend on the effectiveness of the means that it shall provide in order to reduce the intention of certain states to neutralize the system of protection.
3.The Propositions
universalization vs. reduced composition
The idea of universalizing the composition of the Commission is presented in the report of the UN High-level Panel on Threats, Challenges and Change. It entails the idea of opening the debate of the Commission to all interested states- the objective being that that every state should interest itself in human rights and be confronted with its undertakings in this regard. It would also do away with the election battle to the Commission.
However, one must conclude today that the participation in the Commission sessions is, in any case, quasi-universal notwithstanding its non-universal composition. Non-member states of the Commission can sit on the Commission, partake in the debates and even present resolutions. Moreover, one of the risks of universalization is the further dilution of the CHR mandate, as is today the case with the General Assembly (that has a universal composition).
Moreover, the advantage of a reduced composition facilitating the taking of decisions must not be neglected. A reduced Council on Human Rights would consequently be a good idea, insofar as the United Nations system would conserve a universal organ, acting "in relation" to the Council, just as the third committee of the General Assembly today exists, with an observation role over the CHR.
criteria: for clear, public and measurable pledges of candidate countries
A reduced composition must be based on clear, public and measurable undertakings of candidate countries.
FIDH continues to believe in the system of equitable geographical representation and understands the risk of the Commission being transformated into a restricted club of « virtuous » states. However, the accession to a Council must engage the candidate states in the protection and promotion of human rights, and not, as is the currently case with the CHR, in an objective of diluting the protection mandate.
For FIDH, one element seems fundamental for the accession to the CHR: the obligation for a member state to issue a standing invitation to the special procedures. The failure by a state to cooperate effectively with one of the mechanisms would be automatically sanctioned, within a 12 months probation period, by its exclusion from the body. In doing so, one would need to organize the conditions for implementing - and verifying - the obligation of cooperation with the Commission mechanisms or of those of the future Council for the member states thereof. Such an obligation results from the combination of articles 1, para 3, 55 and 56 of the UN Charter. It would require the implementation by the OHCHR of a public instrument of control of the cooperation of the concerned countries with the mechanisms created, in the form of a table, including the invitations requested, the responses obtained and an evaluation of the degree of cooperation with the mechanisms by the authorities of the solicited countries.
permanent character
FIDH supports the passage to a permanent session as proposed by the Secretary General. Such a proposition would allow for the unblocking of the debates, would enable for more attention to be provided to every situation presented, and provide reactivity to the organ principally responsible for human rights within the UN. This would also increase the visibility of each of the reports presented, and the conclusions of the particular mechanisms.
Should the passage to a permanent organ be adopted, the multi-stakeholder organization of the debates (member states, observer states, IGOs, National institutions and NGOs) must absolutely be maintained. This composition has allowed for the expression of various and nuanced points of views on the situations under examination. Conserving the participation of the independent human rights defenders organizations is crucial to FIDH.
Recognizing the importance of the participation of independent NGOs also requires a reform of the Committee of NGOs in order to transform this body into a body composed of independent experts, and to remove the phenomenon of GONGOs (governmental « NGOs »).
– Annual Report of the High Commission of human rights
The proposition for an annual report of the High Commissioner for human rights can be implemented today without a specific resolution having necessarily to be adopted in relation thereto, in the context of the High Commissioner’s current mandate.
For FIDH, this proposal would very much present added value in terms of visibility of the recommendations made by the various organs of the United Nations in relation to a given country, allowing in the same manner for the evaluation of the degree of cooperation of a state with the United Nations mechanisms, or the ratification and implementation of conventions in relation to human rights.
Perpetuation and reinforcement of the protection procedures
The human rights protection procedures are the heart of the protection system of the United Nations. The reform entails the risk of seeing the heart attacked, insofar as we have over the years witnessed the determination of numerous states to have the system, the independent and public criticism of which they do not tolerate, weakened.
The heart of the reform must therefore relate to the perpetuation and the reinforcement of the protection procedures of a system built up for almost 40 years. These mechanisms often constituted for the victims and their defendants, are often the only recourse to obtain from the United Nations the calling into question of their oppressors.