In 2006, the General Assembly decided to establish a new Human Rights Council responsible for promoting universal respect for the protection of human rights and fundamental freedoms for all, without discrimination of any kind and in a fair and equal manner. Adopting resolution 60/251 by a vote of 170 to 4, with 3 abstentions, the Assembly set up this Council to replace the Commission on Human Rights. The election of the first members of the Council was held the same year, as did the start of their term of office.14
The Human Rights Council is a completely distinct entity from the Office of the High Commissioner for Human Rights. The latter is part of the United Nations Secretariat, answering to the Secretary-General, and providing technical, substantive and secretariat support to the Council.
The Human Rights Council consists of forty-seven member states of the United Nations. At its fifth session in 2007, the Council responded to a request and adopted detailed modalities regarding the Universal Periodic Review mechanism. These modalities relate, in particular, to the basis of the review, the principles and objectives to be followed, the periodicity and order of review of countries, processes and modalities, as well as the outcome and the follow-up to the review.
In 2007 also, the Human Rights Council adopted a calendar in relation to the consideration of the 192 Member States of the United Nations to be considered during the first four-year cycle of the mechanism, and decided on the precise order of consideration of the States to be reviewed in 2008.
The UN had decided to endorse the proposal and to create the new Council with a mandate to address country situations, including gross and systematic human rights violations. All the details of the new Council were left to the General Assembly to debate, negotiate, and clarify. How can the new Human Rights Council be credible, powerful, and legitimate in a world of power politics? How can the Human Rights Council avoid the flaws and failures of the earlier Commission? If the chief problems of that Commission had been politicization and selectivity, are these not endemic to the current international political system? Is international human rights scrutiny a question of structure or of political will?
The initial purpose of the Commission was standard setting. Its first task was the preparation of the Universal Declaration of Human Rights in 1948. The Commission continued in its standard-setting function in the early years of its existence, creating several new treaties on specific human rights issues such as racial discrimination; civil and political rights; economic, social and cultural rights; torture; and women’s and children’s rights. The second phase of the Commission’s work was to oversee the implementation of these standards. Through debates, discussions, and resolutions it has instituted mechanisms, such as working groups and special rapporteurs, to assist in monitoring the implementation of the standards. Yet, despite all of these efforts, the Commission suffered from a steady decline in its credibility and faced serious challenges in the effectiveness of its work. It came to resemble a club where friendships easily overlooked wrongdoing. A record of selectivity and double standards tarnished its reputation, and its membership often included political regimes that were themselves considered major perpetrators of human rights abuses.
Functioning of the Human Rights Council
The malfunctioning of the Commission meant that human rights concerns had been treated ineffectively and in a biased manner. The Commission had regularly debated many reform ideas. Yet none of the piecemeal reforms yielded effective change. The Secretary-General therefore took a bold step in suggesting that the UN human rights structure be completely overhauled and that the Commission be replaced by a new Human Rights Council.
The main purpose of the reform plan was to upgrade the status of the Commission to that of a Council, putting human rights on a par with security and development issues. The Council would be a standing body, able to meet on a regular basis rather than restricted to a six-week annual meeting. It would have a chamber of peer review where every member state would periodically come under scrutiny, with equal attention to be given to all areas of rights. The chamber as a standing body would at the same time be able to deal urgently with any crisis situations that might arise. The membership would be more accountable and representative through the proposal that members would be elected by a two-thirds majority vote of the General Assembly. The Council would also be in a position to provide states with technical assistance and policy advice.
A fresh start may be just what the international human rights machinery needs; however, with the same players in entrenched positions, the old political game is likely to be repeated. There are practical points that may be made to avoid the flaws and failures of the past. Yet, without a change in the attitudes of member states to human rights monitoring, the Human Rights Council is in danger of harboring the same constraints and flaws of the old Commission. More forceful and public monitoring that gives equal treatment to all states on a regular basis may help promote an attitudinal change. The principle that all states have equal obligations to report on human rights situations may help to change current reigning assumptions that somehow public condemnation can be negotiated.
A change in election procedures may help to prevent states that are committing human rights atrocities from becoming members. It will be impossible to base membership on precise criteria, as no consensus view prevails on who is a human rights abuser and who is not. Every country in the world violates the Universal Declaration of Human Rights in some way. The majority of state parties are not in favor of introducing criteria for membership of the Council. One way of giving credibility to membership is to exclude certain states from possible election to the Human Rights Council, for example by disallowing any state with a current resolution concerning its negative human rights record. Fifteen states fall under such a resolution at present. The General Assembly will need to pass a two-thirds majority in electing members to the Council, as against the current procedure whereby the Economic and Social Council (ECOSOC), with fifty-four member states, elects the Commission based on regional blocks. It is not yet clear whether the regional blocks could put nominations for the Human Rights Council to the General Assembly. Equitable geographic representation through regional groups will ensure credibility by safeguarding against one region being dominant. This equitability can be created by setting a minimum number of state memberships of the Council per region. The elections through the General Assembly, with 192 member states, will create a wider potential for change in membership compared to the elections through ECOSOC, which has only fifty-four member states.
As mentioned, double standards have been a key flaw in the Commission; some states with egregious human rights records have not had any resolutions on their human rights situation. In order to sort and classify these countries, the Office of the High Commissioner on Human Rights (OHCHR) should summarize the human rights situation on all countries before their potential election to the new council. A Human Rights Report published by the OHCHR with a summary of the situation in each country would make the election process more transparent. Such a report would serve as a guide in the election process, and all states could be strongly encouraged not to vote for states that the OHCHR has classed as having a questionable human rights record.
As the Secretary General’s reform proposals have suggested, the image of the Human Rights Council should be upgraded, and the body should be given the status of a principal organ of the UN. This would require a charter amendment, which needs to be passed by a two-thirds majority in the General Assembly, including all permanent members of the Security Council.
As a principal organ of the UN, the Human Rights Council would have the increased capability, status, and authority that the secretary-general envisaged. The Commission, as a subsidiary organ, has had to have all its resolutions confirmed by ECOSOC. Although ECOSOC approval has been a more or less rubber stamp exercise, it still has meant that the CHR has been given a subsidiary class status. The president of the General Assembly announced in June 2005 that initially the Council would be a subsidiary organ of the Assembly, but the possibility of promoting it to a principal organ would be left open for the Assembly to decide.
Making the Human Rights Council a principal organ of the UN may also translate into a larger budget for the OHCHR. At present, the OHCHR receives only 1.8 % of the UN budget. Most of the remaining OHCHR budget currently comes from extra budgetary contributions. The September 2005 UN World Summit decided to double the regular budget of the OHCHR over the next five years; however, the new council may attract additional funding to be proportionate with its new status.