Dear Programme Director and distinguished Participants,
I am grateful to have been given the opportunity to participate in this panel although I am aware of the difficulty of making an original contribution when taking the floor at the close of such a rich 3 day debating session.
It is indeed helpful to exchange personal views at Wilton Park and soon in Algiers from 19 to 21 February 2010 where all my colleagues are invited, reflecting informally as professionals on issues and options inspired by lesson-learning from the first 5 years of HRC. That we do so before we suggest and receive instructions from our capitals will contribute to consensus building.
I am to adress the prospects of evolution of the relationship between the HRC and other UN bodies.
Here I wish to make two caveats:
1 – One can think of two approaches for addressing such an institutional review :
- to proceed on the basis of the canons of conceptual consistency and to select the most logical mix of measures to maximize effectivenessenhancement,
- or, to be mindful of the fact that some of the possible inconsistencies and inadequacies of the current institutional architecture of General Assembly res. 60/251 were the price to be paid for achieving political consensus and to avoid, therefore, rocking the political boat during the review, making do with a few “fixes” that do not open “Pandora’s Box” . At this early stage, we are in the happy situation of bieng able to be somewhat irresponsible and to raise all common-sense options on emerging issues so that none are discarded unwittingly in our search, at a later stage, for political consensus.
2 – Some of the issues in my remit go logically beyond OP. 16 of resolution 60/251 relating to the review by the Council itself, to encompass Council status issues which fall under OP 1 of this resolution directed at the General Assembly.
At some stage, it will have to be decided whether the review outcome document at Human Right Council level can include, in addition to action under OP 16, recommendations to the General Assembly on OP 1.
3 – Outside the role of the President that my colleague Ambassador Uhomoibhi, who represented Africa brilliantly in this high office, will address, the strategic tools available to the Human Right Council (HRC) in promoting and protecting human rights are:
- its reporting to the General Assembly,
- the action of the 30 thematic and 8 country special procedures of the Council,
- and the Council’s statutory interaction with the Office oh the High Commissioner for Human Rights.
In view of the inter-relationship between human rights, security and development, there is need to ask whether the relationship of the HRC with other UN bodies as it now stands is such as to be central in promoting human rights system-wide.
4 – A prima facie conclusion from a review of the present state of affairs is that there is some inconsistency between the decision taken to enhance the human rights machinery through the replacement of the Commission by the Council while leaving unchanged the rest of the UN institutional environment through which the Council is expected to exercise its enhanced mandate. My presentation will suggest some common-sense options to address this issue leaving it to our capitals to select those whose discussion is politically acceptable.
*
**
Relations between the HRC and the OHCHR
5 – There are 3 sets of statutory relationships between these two bodies :
- Those springing from the overall competence, authority and decisions inter alia of the Human Rights Council (replacing the Commission) under which the High Commissioner for Human Rights exercises her responsabilities as per OP 4 of UNGA res. 48/141 and OP 5 (g) of UNGA res. 60/251.
An overall decision that the Human Rights Council could take under this authority is to express its recommendations to the General Assembly’s Committee on Program Coordination on OHCHR’s strategic framework as do other intergovernmental UN bodies which review strategic frameworks of other UN secretariat entities (see UN Secretary general’s document ST/SGB/2000/8 dated on 19 April 2000 on “Regulations and Rules Governing Programme Planning, the Programme Aspects of the Budget, the Monitoring of Implementation and the Methods of Evaluation”).
Joint Inspection Unit (JIU) Report ref.JIU/REP/2007/8, rec. 2 upholds this view as follows:
“ The General Assembly should instruct the High Commissionner to seek the advice and the views of the Human Rights Council in the preparation of the proposed strategic framework and the associated budget requirements for human rights activities prior to finalization of these documents.”
In May 2008, fomer High Commissioner Arbour accepted to submit to the CPC the comments of the HRC on her Office’s strategic framework, “on a volontary basis” (Doc. A/62/845. Ad. 1 of 29 May 2008).
The current High Commissioner has endorsed this view and has even gone beyond it by also consulting UN Member States on her draft strategic managment plan. This evolution will promote maximum consistency and systemic impact between overall priorities of these two independant bodies.
It is suggested that this practice concerning the strategic framework be recognised through the HRC endorsing the recommendation of the JIU.
- The second set of relationship between OHCHR and HRC results from specific mandates given to the HRC by the General Assembly such as in its res. 61/159 OP 3 on the composition of the staff of the Office. I have no special comment in this regard.
- The third set of relationship between the two bodies results from article 14 of the rules of procedure of the Council whereby OHCHR “acts as secretariat for the Council”. Here the issue is a practical one of managing the workload, controlling the ballooning of the documentation and making it available in all languages. A small reducing of the workload could be to have reporting by the HC only once a year at the main session in her annual report on general policy reviews and initiatives and to limit HC updates at others sessions only to new developments having occurred and new challenges having arisen since the previous Council session.
Relations between the HRC and the General Assembly
6 – Ambassador Akram has made a much more cogent presentation in this regard than I could even do. I will limit myself to two remarks:
- when reporting to the third Committee, special procedures of the Council should not deliver the same speech as previously made to the Council. As special procedures of the Council, their statement to the Committee should report on the Council debate and outcome thereon.
- by virtue of the universal representation of the third Committee, it is legitimate for it to review the report of General Assembly subsidiary body of limited membership. However, the report to the 12th special session of the Council was addressed directly to the General Assembly as per letter A/C.3/64/3 of the President of the General Assembly. While the letter says this does not constitute a “precedent” one might ask whether criteria could be determined to comprehend which of the two routes specific Council reports are likely to follow in the future.
Relations between the HRC and the Security Council
7 – Human rights issues are increasingly being raised in the Security Council and security issues are taking more prominence in the Human Right Council as exemplified by its resolution N° 11/4 on the “Promotion of the right of peoples to peace”.
The Security Council adresses special procedures of the HRC formally as in OP24 of res. 1888 on violence against women or in OP 14 of its resolution 1814 on Somalia.
In the latter resolution, the Security Council also acknowledges resolution 7/35 adopted by the HRC on Somalia. A Presidential statement of the Security Council of 11 October 2007 even welcomed HRC resolution S-5/1 on Myanmar.
Under the Arria formula, special procedure mandate holders have in turn made informal presentations to the Council. Indeed according to para. 89 of the of the special procedures manual, one third of these have informally briefed the Security Council.
8 – The Security Council has included a Human Rights component in 16 peace-keeping missions and has emphasised in another the importance of the human dimension of the conflict. It is suggested:
- that the special procedures of the HRC be given an opportunity to assist in this process.
- that the HRC and OHCHR be involved in the implementation follow-up of the these human rights components.
9 – A glitch occurred when, during the 12th session of the HRC, the mass killing of peaceful demonstrators in Guinea did not lead to the expected rapid response by HRC.
Thus, the voice of the HRC was not heard by the Security Council on this massive violation of Human rights as the latter reviewed and approved the UNSG mission of inquiry to Conakry in Presidential Declaration CS/9777 dated 28 October 2009. Fortunately the High Commissioner spoke up.
This raises the question whether the reactiveness of the Council can be enhanced. If so, how: through resorting to simple declarations or communiqués by completing accordingly par.118 of its rules of procedure or through other options?
10 – The consideration of the moot issue of the establishment of a statutory relationship between the two Councils would be contingent on universalising the membership of the Human Rights Council. In the absence of a large number of missions of UN Member States in Geneva, this however would upset the current geographic balance of the Human Rights Council.
Relations between HRC and ECOSOC and other UN agencies
11 – ECOSOC by virtue of article 62 (2) of the UN Charter “may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all”.
As the former Commission on human rights was subsidiary to ECOSOC and reported to it, the system was internally consistent.
Since 2006, the Human Rights Council now also has by virtue of OP 3 of General Assembly res. 60/251 the mandate “to address situations of violations of Human rights including gross and systematic violations and make recommendations thereon”.
The fact that the two UN Councils have broadly overlapping mandates is inconsistent.
12 – The problem is compounded as article 63 (2) of the Charter stipulates that ECOSOC “ may coordinate the activities of specialized agencies through consultation with and recommendations to, such agencies and through recommendations to the General Assembly...” A large number of the agencies mentioned here have, or should have, human rights components that ECOSOC is therefore entitled to coordinate.
At the same time, OP 3 of res. 60/251 stipulates that the HRC “should also promote the effective coordination and the mainstreaming of human rights within the UN system”.
So both ECOSOC and HRC promote and coordinate human rights system-wide and ECOSOC has an edge on HRC because it has a joint intergovernmental and inter-agency format to achieve this objective and important agenda items thereon while HRC has neither.
The closest the human rights machinery gets to this system-wide mainstreaming is through:
-OHCHR participation to the Inter-agency Group on Migration.
-the short-lived chairpersonship by the HCHR of the task force of the programme “ Delivering as one UN on Human Rights “ which completed its work in December 2008”.
-and of HCHR the chairpersonship by the HCHR of the United Nations Counter-terrorism implementation task force.
13 – It appears therefore that HRC was up-graded but that the UN institutional environment within it was to exercise its enhanced mandate remained unchanged. This is where politics part with logic.
Can this be remedied?
Of course, article 62 of Charter cannot be tampered with. However the following are very tentative ideas:
- Establishment of an intergovernmental representative working group under ECOSOC and HRC to identify priority human rights issues for either or both these peer Councils and to agree empirically on how to achieve mutual reinforcement and avoid duplication over a given planning period.
- Inclusion of a new agenda item in HRC sessions on “Promotion of effective coordination and mainstreaming of human rights within the UN system”.
- Inputs into the HRC agenda item would be provided by a Standing Inter- AgencyTask Force on Human Rights to be chaired by the High Commissioner for Human Rights and that would cover the whole area of coordination and mainstreaming of human rights. A recommendation to consider the setting up of such a task-force would be the subject of consultations between the HRC and ECOSOC with a view to submitting a joint recommendation to the General Assembly.
Finally the status of HRC has been enhanced and there is talk of enhancing it further. Yet the status of the permanent body that is the key interface with the Council on Human Rights and that would be the force behind the implementation of system-wide mainstreaming of human rights i.c. the OHCHR, has remained unchanged for the past 16 years.
Is it consistent to enhance the role of the intergovernmental human rights machinery and not that of the related UN Secretariat entity with which it interacts and which supports it ?
Let me then conclude with a rash suggestion: Has the time not come to enhance the independence, resource base and inter-active capacity of the Office of the High Commissioner with the Council, by giving it the same status as the other Office of a High Commissioner in Geneva, UNHCR, rather than letting OHCHR remain a remote administrative unit of the New York based UN Secretariat?
