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MA International Politics and Human Rights2008
Has the reformulation of the Human Rights
Council enhanced the scrutiny of human rights
issues in the UN?
John William Lubbock
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Contents
Abstract 4
Part 1 Research Design0 Introduction 51 Methodology 82 Theory 123 Research hypothesis 1545Part 2 Case study6 From Commission to Council 197 The Commission and Council Compared 24
8 Universal Periodic Review 270 Case Study: Bahrain UPR 309 Special Procedures 3510 Code of Conduct 3911 Individual Complaints Procedure 43
Part 3The Limits of Diplomacy: Discourse Analysis 45
Part 4 - Findings
Bibliography 62
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Acronyms
CHR Commission on Human RightsECOSOC Economic and Social CouncilGA General Assembly
HCHR High Commissioner for Human RightsHRC Human Rights CouncilICCPR International Covenant on Civil and Political RightsIESCR -International Covenant on Economic Social and Cultural RightsISHR International Service for Human RightsLMG Like-Minded GroupOHCHR Office of the High Commissioner for Human RightsOIC Organisation of the Islamic ConferenceSP Special ProcedureSR Special RapporteurSRFOE Special Rapporteur on Freedom of Opinion or ExpressionWG Working GroupWGEID - Working Group on Enforced or Involuntary DisappearancesUDHR Universal Declaration of Human RightsUAs Urgent AppealsUPR Universal Periodic ReviewWEOG Western European and Other GroupWGEID Working Group on Enforced or Involuntary Disappearances
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Has the reformulation of the Human Rights
Council enhanced the scrutiny of human rights
issues in the UN?
Adopting a resolution by a recorded vote of 170 in favour to 4 against (Israel, Marshall
Islands, Palau, United States), with 3 abstentions (Belarus, Iran, Venezuela), the General
Assembly decided to set up the new Council to replace the Geneva-based Commission on
Human Rights, which has come under fire for excessive politicization.1
Abstract
This dissertation looks at the structure of the Human Rights Council (HRC) and its
methods of reporting and censure most importantly the Special Procedures (SPs), the
Universal Periodic Review (UPR) and Complaints Procedure with the aim of making a
comparative analysis of the new body to its predecessor, the Commission on Human Rights
(CHR). Among these mechanisms, the SPs have been recognised as the front-line
protection actors of the United Nations2, yet although they are among the most prominent
UN tools in monitoring human rights, few scholars have dealt with them in a systematic
and thorough way. (Nifosi, 2005, p1) They receive complaints, compile reports and make
on-site visits and Urgent Appeals (UAs), acting as quasi-judicial advocates for the victims
of human rights violations. The SPs mandate-holders are often independent experts
tasked with impartially reporting and seeking answers and remedies from state officials on
alleged violations. However, the SPs mandates are currently undergoing renegotiation by
the members of the Council, leading to the possibility that states will curb their powers and
responsibilities. This paper argues that while the Human Rights Council cannot change the
1 GA/10449, Department of Public Information, 15 th March, 2005,http://www.un.org/News/Press/docs/2006/ga10449.doc.htm2 Ramcharan, B., The Special Rapporteurs and Special Procedures of the United Nations Commission onHuman Rights and Human Security in B. Ramcharan (ed.),Human Rights and Human Security (TheHague: Kluwer Law International, 2002), p81
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external system of states directly, its norms and practices have a regulating, or socialising
effect on the exercise of state power which can contribute to their eventual change and
improvement.
Part 1
Introduction
The reform of the Commission on Human Rights (CHR) in 2006 under former Secretary-
General Kofi Annan led to a review not only of the working methods of that institution, but
reflected a fundamental realignment of the international status quo, with the US pursuing
an isolationist policy and powerful new regional groupings in Africa and the Arab world
increasingly demonstrating their collective bargaining power.
The SPs will be evaluated along with the UPR and Complaints Procedure by looking at
official documentation as well as by interviews with people who work(ed) in the Office of
the High Commissioner on Human Rights (OHCHR), including former SP mandate holders
Sir Nigel Rodley (SR on Torture) and Mr. Doudou Dine (SR on Racism).
The HRC is a charter body of the UN as it takes authority from the UN charter and not a
subsequent bilateral treaty like the Convention Against Torture. Every state within the UN
has accepted the terms of the Charter, and reservations cannot be made to it in the same
way as to a treaty. The charter bodies thus have theoretically universal authority (without
enforcement capacity), while the Treaty bodies have authority only in the signatory states
(and subject to reservations). In terms of legal enforcement capacity, both types of body are
inferior to regional mechanisms like the European Commission on Human Rights (ECHR),
which have seen the consolidation of institutions, with increasing emphasis on their
judicial or quasi-judicial character [while] at the universal level, there has been a
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proliferation of bodies, and a certain decline, or at least a failure to develop, complaints
procedures as distinct from reporting.3
It has been one of the major advantages of both the CHR and the HRC as charter bodies
that they have been able to monitor the spectrum of civil, cultural, economic, political and
social rights; attempting to treat them indivisibly and in combination, rather than being
restricted to the obligations acceded to by states in the International Covenant on Civil and
Political Rights (ICCPR), as the Human Rights Committee is although the Committee
may look at violations which are also subject to examination by other treaty bodies, like the
Committee against Torture (CAT).
In June 2008, the US withdrew from its observer status at the HRC4. Yet even liberal
commentators supported their absolutist with us or against us doctrine, the New York
Times hoping that a refusal to go along with this shameful charade can produce something
better 5. This paper studies how states engage in dialogue and why they wish to be seen in
a certain light within the international community.
Discourse analysis is employed to show how states conduct their diplomatic relations
and pursue their interests. As Caroline Kennedy-Pipe recently said, understanding
why and how there are wars and conflicts, or poverty and disease, or powerful vested
interests, is the first step to being able to do something about them.6
Literature Review
3 Crawford, J. The UN Human Rights System: A System in Crisis?, in Alston, P., Crawford, J., The Futureof UN Human Rights Treaty Monitoring, (CUP, 2000), p34 Human Rights Watch, US: Leaving UN Rights Council Fails Victims of Abuse, 6 June 2008,http://www.hrw.org/english/docs/2008/06/06/usint19048.htm5 New York Times, The Shame of the United Nations, February 26, 2006http://www.nytimes.com/2006/02/26/opinion/26sun2.html?_r=2&n=Top%2fOpinion%2fEditorials%20and%20Op%2dEd%2fEditorials&oref=slogin&oref=slogin6 Kennedy-Pipe, C., At a Crossroads and Other Reasons to be Cheerful: The Future of InternationalRelations, International Relations, 2007, 21, (Sage), p353
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In 1998, Flood wrote about the effectiveness of the UN human rights institutions. He
contrasted treaty and charter bodies, arguing that the former are more effective because
they act as the agent of apoliticalbody of the community of states.7 By this, Flood meant
that the Commission carries out its task in the name of the entire community of member
states. In this it differs from treaty-based organs, which do not speak on behalf of the
community of states or even of states party to the particular agreement.8 Flood also said
that sometimes country-specific procedures seem to have more impact in individual
states, showing that it is impossible to gauge an exact level of effectiveness in human rights
monitoring. As discussed below, this means that effectiveness is not an empirically
testable value, and why I have instead chosen to qualitatively measure human rights
scrutiny.
Flood lamented that the Commission was marred by political warfare: for decades, the
first week of each annual session of the Commission was devoted to condemning Israel and
the second week to condemning South Africa.9 This trend has continued in the new
Council, with a resolution condemning Israels war against Hezbollah in Lebanon in
August 200610.
Other writers, such as Gutter and Nifosi11, have written on the development of the Human
Rights and Special Procedures mechanisms of the UN, and they point to some problems
they perceive as obstructing the development and impact of human rights. Gutter notes the
lack of financing for Special Procedures, though the deficiencies had been partly repaired
by contributions from individual states including the UK. Gutter also notes the non-
cooperation of the Like-Minded Group12 (LMG), for whom the process of review of the
mechanisms of the Commission had become an occasion to introduce what some have
7 Flood, P.J., The Effectiveness of Human Rights Institutions (Praeger, 1998), p38 Ibid, p399 Ibid, p4010 A/HRC/S-2/1, www2.ohchr.org/english/bodies/hr council /specialsession/2/docs/A.HRC.S-2.1_en.doc11 Nifosi, I., The UN Special Procedures in the Field of Human Rights (Intersentia, 2005)12 Often synonymous with the Non-Aligned Movement or the G77, it is composed mainly of Asian andAfrican states who have sought to avoid domination by the Western or Communist blocs see Non-Aligned Movement and Developing Countries, The Annual Register. A Record of World Events, Vol. 247,2005, p365http://www.staff.city.ac.uk/p.willetts/PUBS/AR05-NAM.PDF
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called the negative reform agenda.13 As these authors described the development of the
CHR and the Special Procedures, this study will only cover recent events.
These studies are indicative of the frustration at the inertia which seemed to follow the end
of the Cold War within the UN at large. They also testify to the dearth of literature
specifically evaluating the Human Rights Commission/Council. Much of the literature
pertinent to this question is found in UN documents, and there are many theoretical
secondary sources which will be discussed in connection with the problem of guaranteeing
human rights.
Theory and Discourse
This dissertation incorporates a constructivist approach to international relations, a
cosmopolitan interpretation of the problem of human rights, and a Grotean view of the
international system. Constructivism is an epistemology which describes how meaning and
knowledge is constructed relative to social context. Constructivism has emerged in
response to Neo-Utilitarian views of the structure of international society to describe a
world of complex power relations, populated by state andnon-state actors who are created
by and in turn create the structures of international society. (Baylis, Smith, 2006, p254-5)
Unlike realism, constructivism was never intended to be a teleological theory, a particular
form developed, over considerable time, to realize the purposes the motivating goals,
animus, telos of an activity14 the activity or object here being the international system.
This paper takes a Grotean view of international society, which the English School theorist
Hedley Bull described as standing between the realist and universalist approaches to
international politics:
13 Gutter., J., Special Procedures and the Human Rights Council: Achievements and Challenges Ahead,Human Rights Law Review, 2007, p10414 Eckstein, H., Regarding Politics, (California, 1991), p127
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states are not engaged in simple struggle, like gladiators in an arena, but
are limited in their conflicts with one another by common rules and
institutions.15
The English School view of the balance of power is relevant to this discussion, as within
international society it is an institution that functions to check the preponderance of any
one state.16
Constructivism has been heavily influenced by the post-structuralist critic, Foucault.
Structuralism assumed that social and cultural objects existed in the real world 17, while
for post-structuralists these objects did not exist objectively but were constructed by their
place within power and discourse. Foucault saw power not in terms of material capabilities
but as a matrix of forces which constituted individual subjects, producing individuals in
relation to one another. For Foucault, official knowledges (particularly the social sciences)
work as instruments of normalisation, continually attempting to maneuver populations
into correct and functional forms of thinking and acting.18His contribution to the
understanding of discourse was to move it away from a linguistic system towards the
notion of discipline a body of knowledge or a disciplinary institution like prison, school,
hospital and church.
Theories, discourses, linguistic practices and religious beliefs are what Durkheim called
social facts objective projections of ideational and normative factors. Thus,
"Whenever certain elements combine and thereby produce, by the fact of their
combination, new phenomena, it is plain that these new phenomena reside not
in the original elements but in the totality formed by their union."19
15 Bull, H., The Anarchical Society (Palgrave, 1977, 3rd edition, 2002), p2516 Ibid, p3117 McHoul, A., Grace, W., A Foucault Primer, Discourse, power and the subject, (Melbourne UniversityPress, 1998), p3418 Ibid, p1719 Durkheim, E., in Ruggie, J, G., What Makes the World Hang Together? Neo-Utilitarianism and theSocial Constructivist Challenge,International Organization, Vol. 52, No. 4, (Autumn, 1998), p858
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Constructivism is descended from this kind of structural analysis, as seen in Foucaults
definition of discourses as clusters of ideas which produce the very objects which
previously they had been thought merely to explain or describe.20For theorists like
Ruggie, this observation informs an approach they take to international relations called
social constructivism.
Woodiwiss analysis of the construction of human rights therefore utilises Foucaults
theory of discourse, the more or less formal sets of interlinked concepts, whether in the
form of religions, ideologies, sciences, or whatever, that organise, order and constrain our
thought.21 Like Durkheims definition of religion, (A unified system of beliefs and
practices relative to sacred things22) discourses contain and exclude various elements
related to them, or sacred and profane elements. Alternatively, discourses can be
thought of as pertaining to different discursive areas, and can thus be more or less
applicable to a given context.
Discourses gain power in the interaction between four elements: objects (the things they
are about); modes of enunciation (the way these things are spoken of); concepts (the
intellectual constructs that are used to speak about them); and strategies (the ways in which
these constructs are combined or thematised).23 For example, the discourse of rights still
takes as its object of application at the national level the same kind of social structure that it
did in the 1940s: namely, capitalist society where individualism is a significant component
of the value system, the rule of law is securely established, the polity is liberal-democratic,
and there are a broad range of social services, voluntary associations and legal statuses.24
Clearly, such a discourse is more relevant to some states and societies than others.
A caveat to the use of discourse must be acknowledged. Foucaults analysis of discourses
concentrated on the localised level of power, like prisons and hospitals. He was a
20 McHoul, A., Grace, W., A Foucault Primer, Discourse, power and the subject, (Melbourne UniversityPress, 1998), p1021 Woodiwiss, A., Human Rights (Routledge, 2005), p2722 Durkheim, E., The Elementary forms of Religious Life (OUP, 2001), p4623 Woodiwiss, A., Human Rights (Routledge, 2005), p2824 Woodiwiss, A, Human Rights and the Challenge of Cosmopolitanism, Theory, Culture and Society, Vol19, No 1-2, Feb-April 2002 (SAGE), p149
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materialist, yet he disagreed with both Realists and Marxists in believing that neither base
nor superstructural levels of power were simply reducible to one another. Selby has
questioned what use Foucauldian analysis can be in the study of International Relations. 25
Selby believes that Foucault can be used to analyse the how of power, but not the when,
where or why. Power is more centralised at the international level, and not all the actors
adhere to the liberal techniques and reason which Foucault explored in domestic Western
society. Thus part 3 of this paper will look at inter-state discourse and analyse the how of
power expressed at that level.
To supplement the internationalist poverty of constructivism, this paper will combine
constructivism with an English School approach to international society and a
cosmopolitan approach to human rights.
Chomsky has said that there are two superpowers in the world, the US and world public
opinion.26 As far as discourse goes, this means that the US is only a superpower to the
extent to which it is able to lead a consensus of international political discourse. Many now
believe this power is waning, and one goal of this study will be to assess to what extent
such a balance of power shift in political discourse is having detrimental effects on the
observance of human rights standards.
Universalism vs. Cosmopolitanism
It has become accepted within Western human rights discourse that such rights as are
contained in the UDHR and ICCPR are universally applicable; surely, they ask
rhetorically, there is nothing more universal and thus cosmopolitan than the autonomy of
the individual?27 Yet there are competing conceptions of human rights in different regions
of the world. The Japanese conception is different from the Indian, and from the Brazilian.
The cosmopolitan approach is neither relativist or universalist, but seeks to acknowledge
the things we share as a global citizenry, while respecting difference. Woodiwiss calls this
25 Selby, J., Engaging Foucault: Liberal Governance and the Limits of Foucauldian IR, InternationalRelations, 200726 Chomsky, N., Hegemony or Survival (Penguin, 2003), p427 Woodiwiss, A., Human Rights (Routledge, 2005), p123
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the chthonic principle, which is that we all share a responsibility to alleviate each others
misery, [yet] there is no one best way in which this should be done.28
Woodiwiss has analysed the formation of human rights discourse from the contending
natural law and reciprocal traditions from a postcolonial, cosmopolitan viewpoint. The
rights specified in the UDHR show a discursive bias towards a Western viewpoint,
specifying for example, that Everyone has the right to social security29. This
universalist discourse has even emerged in the ironically titled Universal Islamic
Declaration of Rights, which does not contain the right to freedom of Religion.
For Woodiwiss, the translation of Roosevelts four freedoms (expression, religion and from
want and fear) into the Cold War atmosphere of the Human Rights Commissions drafting
of the UDHR created a set of rights which laid too much stress on the civil and political
or, in Kantian terms, the republican side.30 It was because of the divide in opinion over the
UDHR between Western states and those who abstained from the vote such as the USSR,
Saudi Arabia and South Africa, that the Human Rights Commission abdicated
responsibility for investigating individual complaints until 1967, and this was the
breakthrough that led to the establishment of the first Special Procedures on the Occupied
Palestinian Territories and South Africa in the same year31.
Englunds important work on human rights discourse in Malawi shows how civic education
organisations have reproduced existing power relations while appearing to talk the
emancipatory language of universal rights. He notes that abstract universalism obscured
the situation of human rights32, and stresses the importance of sensitivity to context. This
gives the observer an index of the usefulness of the Human Rights Council. It is the only
state-led international institution to look at individual cases of human rights abuse, yet it is
also often mired in abstract platitudes of the importance of universal rights. It can only be
seen to be working by applying those rights to cases in context, which again takes us back
28 Woodiwiss, A., Human Rights (Routledge, 2005), p13029 UDHR, Article 22http://www.un.org/Overview/rights.html30 Woodiwiss, A., Human Rights (Routledge, 2005), p8931 Nifosi, I., The UN Special Procedures in the Field of Human Rights (Intersentia, 2005), p1532 Englund, H., Prisoners of Freedom, (University of California Press, 2006), p105
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to the importance of the Special Procedures, who introduce that element of specificity to
the abstract, diplomatic discourse between states.
Law, Justiciability and Translation
There is a sharp dividing line between domestic, or hard law, and international, or soft
law. International law may find binding force in regional instruments like the European
Court of Human Rights, or may be ratified by domestic parliaments and become domestic
hard law. This is not the place to engage with the difficult question of how soft law can
become enforceable, suffice it to say that many victims of abuse are entitled to judicial
remedy by national or regional institutions to rights contained in treaties like the ICCPR,
yet it remains for governments and civil society to take positive steps to provide
marginalised people with the ability to claim these rights.
The success of civil and political rights enforcement has been tied to the hegemony of the
rule of law (specifically Anglophone common law) within international law. Yet this kind
of rights discourse has been shown to be unhelpful to many in the global South who see
development and communitarian rights as more fundamental to their advancement.
Englund sees the individualization of rights discourse in Africa as effectively ignoringstructural inequalities and group discrimination.
There is a discontinuity within international law, whereby economic and social rights (or
the minor tradition), have assumed a legally subordinate role. The ICCPR requires state
parties to develop the possibilities of judicial remedy33, while the ICESCR has no
equivalent provision. An optional protocol to the ICESCR now allows individual
complaints to be made to the Committee on Economic, Social and Cultural rights, yet there
is still no mechanism enjoining states to develop domestic remedies which would allow for
the translation of these rights into specific localised contexts. The UDHR, however, gives
everyone the right to an effective remedy by the competent national tribunals34, and this
33 ICCPR, Art. 2.3(b),http://www2.ohchr.org/english/law/ccpr.htm34 UDHR, Art. 8, http://www.un.org/Overview/rights.html
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should encourage states and NGOs to lobby for this provision as another protocol of the
ICESCR.
The arguments against justiciability of economic and social rights are well known: civil
and political rights are (in the terms of the general comment on the ICCPR): immediately
applicable, while the latter were to be progressively implemented the former were rights
of the individual against the state while the latter were the rights which the state would
have to take positive action to promote35. As previously stated, it is only theoretically true
that civil and political rights are immediately applicable because those who need them may
not be in a position to claim them. The ICCPR also contains the right to religion and
culture, which do not fit neatly into the category of individual rights.
Englund believes that Rather than deciding which set of rights should come first, we
should replace abstract considerations with empirical investigations into the actual
situations of rights and wrongs.36Woodiwiss is, in my view, correct to say that even if
economic rights such as to housing and freedom of labour have not traditionally been
justiciable in international law, this is not to say that they could not, in principle, be
pursued through the courts37. As the Olga Tellis v. Bombay Municipal Corporation38 case
has shown, the right to adequate housing can be made justiciable, though it is telling that
this right was asserted by linking it to the right to life in the Indian constitution. Making
economic rights operational through the language of civil and political precedent may help
to deliver the positive rights that citizens require in their local context, while not obligating
the state to provide welfare beyond its means.
Woodiwiss and Englund are not relativists, or communitarians. They believe that all
people should share fundamental rights, yet they understand that the way in which these
rights can be made operational in different states requires their translation.
35 Steiner and Alston, International Human Rights in Context (1st Edition, OUP, 1996), p26136 Englund, H., Prisoners of Freedom, (University of California Press, 2006), p2737 Woodiwiss, A., Making Human Rights Work Globally, (Glasshouse Press 2003). P3338 Steiner and Alston, International Human Rights in Context, (3rd Edition, OUP, 2008), p323
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Rights like words themselves are contextual. The word freedom, as Englund has
pointed out39, was translated into the Kiswahili word Uhuru, and meant liberation from
colonialism. Yet Africans have come to realise that freedom is not synonymous only with
that discourse, as it is not synonymous with an individual rights discourse either. It is not
for politicians from whichever culture to impose their cultural interpretations of freedom
on international law, which should be secular, culturally neutral and allow for the
possibility of translation into domestic contexts.
For Englund, making individual freedoms the essence of rights marginalized other
grounds for making claims.40 Woodiwiss believes that economic and social rights are
only not justiciable because the right to housing, or to legal aid in labour disputes, or to
education or healthcare do not exist in many domestic legal codes in domestic laws. This
paper does not argue that judicial remedies are the only method of redressing structural
economic inequalities, but that legal codes should protect the right to pay and fair treatment
of employees as much as the property rights of landowners: as a quasi-judicial international
body, the HRC has some legal authority which should be used to democratise international
law and recognise other kinds of freedom as having legal status.
Methodological Design
A Quantitative Approach to Effectiveness?
A qualitative evaluation of the impact of the Human Rights Council is the only
methodologically rigorous way to approach such an institutional case-study. Landman
attempted a quantitative study of HR measurement41, describing different studies that
have coded the prevalence of human rights in national constitutions, or measured the
relationship between human rights and variables like democracy, investment, economic or
military assistance. This kind of assessment is impeded by the lack of reliable data from
before a certain date and for certain states, making comparative analysis hard.
39 Englund, H., Prisoners of Freedom, (University of California Press, 2006), p240 Ibid, p14641 Landman, T., Measuring Human Rights: Principle, Practice, Policy, Human Rights Quarterly 26, 2004,p906
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Quantitative evaluations of the effectiveness of any human rights regime are bound to be
superficial, as the following examples show.
First, it is possible to look at what percentage of communications sent by SPs received
replies. Livermore and Ramcharan are quoted by Flood as saying that the Working Group
on Enforced or Involuntary Disappearances (WGEID) had a success rate of 7-8% of cases
resolved42, and 25% of urgent cases, which is higher than any other body within the UN
system43, as of 1998. Without a control group to compare with this figure, the impact of
the procedure cannot be evaluated.
To update this figure, the 2008 WGEID report shows that The total number of cases
transmitted by the Working Group to Governments since the Working Groups conception
is 51,763. The number of cases under active consideration that have not yet been clarified
or discontinued stands at 41,257 and concerns 78 states. The Working Group has been able
to clarify 2,702 cases over the past five years.44 Thus, as of January 2008 the percent of
cases resolved by WGEID stands at 20.3%, an increase from the 7-8% reported in 1990,
suggesting that capacity building within OHCHR has resulted in a strengthening of their
fact-finding capabilities.
Unfortunately, responses to communications tell the observer little more than how a state
wants to be seen how much it cares about its reputation. An anonymous Special
Procedure Secretariat official commented that, first of all, the fact that they do reply does
not necessarily mean that anything positive is done, but the fact that they dont reply does
not necessarily mean that they just ignore it. It is also an indication of course of how a
government wants to be seen.45
42 Resolved cases also do not differentiate between persons located alive or known to have died.43 Livermore, D., Ramcharan, B.G., Enforced or Involuntary Disappearances, An Evaluation of a Decade ofUN Action, Canadian Human Rights Yearbook, 1989-90 (Ottawa University Press, 1990) , p227, quoted inFlood, P.J., The Effectiveness of Human Rights Institutions (Praeger, 1998), p6144 A/HRC/7/2, 10th January, 2008, Report of the Working Group on Enforced or InvoluntaryDisappearances, p7http://daccessdds.un.org/doc/UNDOC/GEN/G08/101/05/PDF/G0810105.pdf?OpenElement45Confidential communication, OHCHR SP Secretariat Official, Interview with John Lubbock, 29 August2008
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Over the last few years, the OHCHR facts and figures reports show a less favourable trend
for communications by SPs as a whole:
Special Procedures Communications Facts and Figures 2005-7
200546 200647 200748
Total Communications 1049 1115 1003Joint Communications 53% 48% 49%Individuals Covered 2545 2869 2294
% of female individuals 14% 17% 13%
Number of countries covered 137 143 128Government responses received as of
April/May the following year46% 58% 52%
Gov. responses to communications sent
in that yearn/a 40% 32%
These figures demonstrate the limits of quantitative analysis. They say nothing about the
quality of the communications or responses, and the facts and figures charts themselves are
not clear on the differences between the two figures for the percentage of responses
received. In sum, these figures are ambiguous, not comprehensive enough, and show that
complaints are not dealt with promptly, even with the incentive states now have ofpreparing a good record for their UPR.
Another possible measure of effectiveness is the budgetary funding of OHCHR and the
SPs. At the 2005 World Summit, states pledged to double the budget of OHCHR over five
years49. Although this Increased donor confidence in the Office has translated into an
increased willingness to provide a greater proportion of funding free of earmarking50, the
2008 regular budget of OHCHR, at $119.2m still only represents 2.89% of the global UN
46 OHCHR, Special Procedures of the Commission on Human Rights, Facts and Figures on 2005Communications, p2 (http://www2.ohchr.org/english/bodies/chr/special/Facts%20and%20figures%20on%202005%20Special%20Procedures%20communications.pdf)47 OHCHR, Special Facts and Figures on 2006 Communications, p1http://www2.ohchr.org/english/bodies/chr/special/docs/facts_figures_2006.pdf48 OHCHR, Special Procedures Facts and Figures on 2007 Communications, p17http://www2.ohchr.org/english/bodies/chr/special/docs/SP2007FactsFigures.pdf49 OHCHR Funding and Budget,http://www.ohchr.org/EN/AboutUs/Pages/FundingBudget.aspx50 OHCHR Strategic Management Plan 2007, p109http://www.ohchr.org/Documents/Press/SMP2008-2009.pdf
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budged (excluding peacekeeping operations), indicating how far the mainstreaming of
human rights within the UN has to go.
51
As the OHCHR budget shows, voluntary contributions to OHCHR still account for a high
proportion of its overall budget. Of this total, the SPs receive $12m of regular budget
funding, and around $9m from voluntary contributions52 (projected 2008-9), according to
Heike Alefsen, Coordinator of the Information and Management Unit of the Special
Procedures Division of OHCHR. She estimates that this is a $2m overall increase since
2006-7.
Part 2
From Commission to Council
In comparing the authority of the Council to that of the Commission, it is important to
understand whose agency lay behind the reformulation and the broader context that
51 Ibid, p10852Heike Alefsen, interview with John Lubbock, 24 September 2008
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produced a consensus that change was necessary. Comparison between reform proposals
and the final mandate also reveals the political exigencies of the context of reform and
suggests recommendations for further future reform.
The first mention of a reformulation of the Commission in official documentation came in
the High-Level Report on Threats, Challenges and Change, in 2004. For David Hannay, the
British representative on the Panel, their report was a fundamental part of the
reconstruction of new security consensus based on a broad understanding of the threats
posed by the new world order: poverty, disease, environmental degradation, war,
terrorism and trans-national crime. The world had changed fundamentally, and the UN had
been unable to keep pace with that change as it began to look increasingly irrelevant to the
political realities of a uni-polar world with many new and old problems. The US invasion
of Iraq in 2003 was the final straw; Kofi Annan declared it to be a fork in the road for the
UN: change or suffer a similar fate to the League of Nations.
Thus for the Panel members, The macro challenge was to fill the vacuum in strategic
thinking about collective security which had existed for more than ten years since the end
of the Cold War had given the global kaleidoscope a sharp shake, while [t]he micro
challenge was to analyse each individual threat and challenge and to devise specific policy
responses that would have some chance of winning consensus53.
In the longer term, Member States should consider upgrading the
Commission to become a Human Rights Council that is no longer
subsidiary to the Economic and Social Council but a Charter body standing
alongside it and the Security Council, and reflecting in the process the
weight given to human rights, alongside security and economic issues, in
the Preamble of the Charter.54
53 Hannay, D., New World Disorder, (I.B. Taurus, 2008), p22354 A/59/565, Follow-up on the Outcome of the Millenium Summit, p75http://www.globalpolicy.org/reform/initiatives/panels/high/1202report.pdf
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The Panels proposition was radical a universal body would replace the 53 member
Commission so that all states would be able to have a say, rather than the body being
dominated by those with most interest in shielding their own violations:
In many ways, the most difficult and sensitive issue relating to the
Commission on Human Rights is that of membership Proposals for
membership criteria have little chance of changing these dynamics and indeed
risk further politicizing the issue. Rather, we recommend that the
membership of the Commission on HumanRights be expanded to
universal membership.55 (Emphasis in original)
David Hannay, the UK representative on the panel, has written recently that the panel
doubted whether the aim of a CHR (or HRC) restricted to a small number of squeaky-
clean countries ruling on those with less good records was likely to be the best way of
making progress.56He noted that this was contrary to the wishes of the NGO community,
who wanted a smaller body.
The UN Secretary General, Kofi Annan took up the reform proposals in his In Larger
Freedom report of March 200557. This document attempted to set an agenda for discussion
at the September 2005 follow-up to the 2000 Millennium Summit. It emphasised what
Woodiwiss has referred to as the minor or reciprocal tradition as laid out in Roosevelts
Four Freedoms speech. Sections of Annans report are entitled Freedom from Fear,
Freedom from Want, and Freedom to Live in Dignity (but not the other two of
Roosevelts freedoms, of expression and religion). It is under this last heading that Annan
introduces a proposal to transform the Commission into a central pillar of the UN,
renaming it as a Council to elevate its importance to the level of the Security Council or
ECOSOC. Such a body could either be accorded the status of a principal body of the UN,
or a subsidiary of the Assembly.
55 Ibid, p7456 Hannay, D., New World Disorder, (I.B. Taurus, 2008), p26357 A/59/2005, http://daccess-ods.un.org/TMP/3872275.html
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A number of additional documents elaborated on the proposals contained in In Larger
Freedom. A/59/2005/Add.1 includes outlines the new key peer review function
proposed by Annan in a speech in April 2005. The document asserts that The peer review
would help avoid, to the extent possible, the politicization and selectivity that are the
hallmarks of the Commissions existing system.58However, it was not clear exactly how
this de-politicisation would be achieved, other than having all states submit to a structured,
rule-bound process of review every four years, although the call for country delegations to
be headed by experienced human rights figures was one positive recommendation. Also
left out of Annans report was a proposal from the panel to link the HRC with a new
Peacebuilding Commission, which developing states feared would lead to interventionism
from the Council.59
However, Annans proposals inIn Larger Freedom were for a smaller, standing body, with
members elected by a two thirds majority of the General Assembly.60It is generally
accepted that this move was to appease the reactionary US delegation led by John Bolton,
who famously told a World Federalist Conference that There is no such thing as the
United Nations. There is only the international community, which can only be led by the
only remaining superpower, which is the United States.61 While this unilateral approach
may have seemed productive when he made the remark in 1994, twelve years later he
seemed unable to adjust his diplomatic stance to a changing international order. Rodleys
view on this decision broadly reflects the institutional view: I still think that was a serious
mistake the US route of having a smaller Commission, a smaller body that would be
composed of those with decent human rights records.62
The 2005 World Summit Outcome document concurred with Annans assertion that peace
and security, development and human rights are the pillars of the United Nations system
and the foundations for collective security and well-being.63 It also endorsed the creation
58 A/59/2005/Add.1, p3 http://www2.ohchr.org/english/bodies/hrcouncil/docs/gaA.59.2005.Add.1_En.pdf59 Hannay, D., New World Disorder, (I.B. Taurus, 2008), p27960 A/59/2005, p45 http://daccess-ods.un.org/TMP/3872275.html61 The Times, March 8th, 2005,http://www.timesonline.co.uk/tol/news/world/us_and_americas/article421888.ece62 Sir Nigel Rodley, Interview with John Lubbock, 14 August 200863 A/Res/60/1, p2http://daccess-ods.un.org/TMP/7974843.html
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of the Council, but declined to offer any concrete proposals, instead mandating the
President of the GA to continue to negotiate its mandate and composition, while strongly
reminding states of their obligations under the Charter, the UDHR and other instruments,
because The universal nature of these rights and freedoms is beyond question.64
Reform the UNhave helpfully compiled a document detailing all the changes between the
Revised Outcome Document written by GA President Ping and the final draft after it had
been dissected by the US delegation. Apart from a concession on paragraph 124 (The
paragraph on doubling the regular budget resources of the Office of the UN High
Commissioner for Human Rights was retained.65), the whole of the section on the
composition, mandate and size of the body has been gutted to defer those decisions to a
later date.
According to Arroba, Bolton made 750 edits to Pings draft Outcome Document of the
2005 Millennium Summit, which proved a real last-minute blow to the delicate consensus
brooked during the previous months, reopening the negotiations and creating an
opportunity for spoilers like Algeria, Cuba, Egypt, India, Iran, Pakistan and Venezuela to
undermine deeper reforms that would have run against the interest of their governments. 66
Bolton deleted references to the Millennium Development Goals, threatened to withhold
US approval of the UN budget67, and then attended only one of thirty negotiating sessions
over the HRC68, pressing for the five Security Council members to be given permanent
seats on the Council.69
Having considered the possibility that US exceptionalism could have persuaded other states
to vote for a stronger HRC mandate than they otherwise would have, there seems little
doubt that the prevarication of the US delegation encouraged other human rights abusing
states to water down the mandate. Furthermore, the scrapping of the proposal for a
64 Ibid, p2765Reform The UN, Changes between the Revised Draft Outcome Document (Ping III, 10 August) and the2005 World Summit Outcome (15 September), http://www.reformtheun.org/index.php/articles/166266 Arroba, A.A., The New United Nations Human Rights Council: What has changed? What can change?Democracy Coalition Project, 2006, p69http://www.webasa.org/Pubblicazioni/Alonso_2006_2.pdf67 Ibid, p7068 Ibid, p7169 Ibid, p72
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universal Council seems to have been aimed directly at securing US support. Boltons main
problem with negotiating diplomatically seemed to be that he did not take into account the
impact of the Iraq war, and the blow to US support caused by its unilateral violation of
Iraqi sovereignty, a rule which, according to Bull, protects both parties and not merely the
party whose cause is just.70 Bolton barely mentions Iraq in his recent book, and instead
states that we had been losing the moral high ground by our repeated compromises 71 in
order to justify his style of my-way-or-the-highway diplomacy.
Rodley concurred with this analysis:
It would have been a stronger mandate if the US hadnt sent John Bolton to
disrupt the negotiations 6 months earlier, and then we probably wouldnt have
had the problem we ended up having of an increased majority of Afro-Asian
countries over all the rest. Its clearly not what they intended, unless what
they intended was, having decided that the CHR was discredited for highly
dubious reasons, and they just wanted to continue discrediting the HRC, as
part of discrediting the United Nations, because part of the US administration
was very, very anti the UN, and that particularly included John Bolton so
they actually had an interest in even the human rights work being
discredited.72
The Council and Commission Compared
Commission:
53 states, 15 from Africa, 12 from Asia, 5 from Eastern Europe, 11 from Latin America
and the Caribbean, 10 from the Western Europe and Other Group
Subsidiary of ECOSOC; members elected by a simple majority of ECOSOCs 54
members; limitless terms for members
70 Bull, H., The Anarchical Society (Palgrave, 1977, 3rd edition, 2002), p2971 Bolton, J., Surrender is Not an Option (Threshold, 2007), p23572 Sir Nigel Rodley, Interview with John Lubbock, 14 August 2008
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Subsidiary of the Economic and Social Council
Once a year meeting in March and April; emergency sessions required a majority of
votes
In session for 6 weeks a year
SP mandate holders served two terms of 3 years each
Council:
47 states, 13 for Africa, 13 for Asia, 6 for Eastern Europe, 8 for Latin America and the
Caribbean, and 7 for the Western Europe and Other Group
Subsidiary of the General Assembly; members elected by an absolute majority of its
members (96 of 192); members limited to 2 terms of 3 years each
Three regular sessions a year; emergency sessions require 1/3 to vote in favour; gross
violators can be suspended with a 2/3 majority vote
In session for a minimum of 10 weeks a year
Thematic mandates: two terms of 3 years, Country mandates re-evaluated every year
Looking at the final resolution establishing the Council, the first noticeable change from
the draft proposals is that members of the Council shall be elected directly and
individually by secret ballot by the majority of the members of the General Assembly 73,
rather than by a two thirds majority. This looks like less of a climb-down, however, when it
is considered that under the old Commission, candidates agreed on a regional slate could
not be opposed by those countries outside the region74.
The reduction of the membership criteria from two thirds to a majority vote was a major
reason why the US delegation opposed the eventual draft of the HRC mandate. The US
still favors a smaller Council as well as stronger criteria for membership, as had been asked
for by some nations. Also, they seemed to hold on to their criteria of a 2/3 majority vote in
the GA (opposed to the simple majority mentioned in the draft) for electing the members of
73 A/Res/60/251, p3http://www2.ohchr.org/english/bodies/hrcouncil/docs/A.RES.60.251_En.pdf74 Hannay, D., New World Disorder, p288
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the Council.75 Council President Jan Eliasson had proposed a 45 member council in an
earlier draft, which was later increased to 47, and the requirement for states to make
pledges to uphold human rights as a compromise position.
Strikingly, the only regional group that saw its representation increase after the
reformulation was the Asian group. This represents the distribution of member states into
the increasingly important geopolitical regional groupings, where Africa and Asia have 53
states each, Latin America and Caribbean 33, WEOG 27 (not including the US and Israel),
and Eastern Europe 23. In effect, the support by the EU and other Western states for a
smaller Council meant that WEOGs representation was reduced, leaving them as a
vulnerable minority on the Council.
The HRCs new mandate institutionalises voluntary pledges to uphold human rights by
requiring that, when electing members of the Council, Member States shall take into
account the contribution of candidates to the promotion and protection of human rights and
their voluntary pledges and commitments made thereto76 In practice, this means that the
pledges are mandatory77. An SP Secretariat official also revealed a corollary of the pledges:
Last year we did several country visits where the inviting country said that they invited us
because of the pledges because they are a member of the council. Indonesia, Sri Lanka
and I think also Nigeria We dont know whether they would have invited us otherwise.
They are places the Rapporteur wasnt previously invited, and they invited us and they also
indicated this link.78 However, pledges and invitations are only an index of how a state
wishes to be perceived, and Sri Lanka especially has had a good record of inviting SP
mandate-holders for some time.
The EU was disorganised in its support for an NGO backed no clean slate rule forcing
more states to stand than there are seats per region, and this was not passed.79 However,
75 Kirchmeier, F., Friedrich-Ebert-Foundation, Geneva Office, 13.03.2006http://library.fes.de/pdf-files/bueros/genf/04370.pdf76 A/Res/60/251, p3http://www2.ohchr.org/english/bodies/hrcouncil/docs/A.RES.60.251_En.pdf77 UN General Assembly 61st Session HRC electionshttp://www.un.org/ga/61/elect/hrc/#candidates78 Confidential communication, OHCHR SP Secretariat Official, Interview with John Lubbock, 29 August200879 Gowan, R., Brantner, F., European Council on Foreign Relations, A Global Force for Human Rights? AnAudit of European Power at the UN, p39, http://ecfr.3cdn.net/3a4f39da1b34463d16_tom6b928f.pdf
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regional blocs have voluntarily allow more states to stand in HRC elections than there are
seats available. At the May 2007 election, all regions had more states standing for
membership than there were seats, with the election more competitive in the Eastern and
Western Europe and Latin America blocs.80 If there are only as many states standing for
election as there are seats, they can still be rejected if they fail to get the required number of
votes, which encourages more states to stand.
Furthermore, in terms of communication and involvement of civil society, NGOs are now
able to fully participate in Council meetings, and the sessions are broadcast live and on
demand on the OHCHR website. Under the Commission, NGOs in consultative status
with ECOSOC [could] submit written statements in accordance with paragraphs 36 and 37
of ECOSOCO resolution 1996/31.81Now NGOs may make oral and written statements
even if they cannot attend the session in person.82 This can only be a positive thing and
encourage further civil society participation and media coverage.
The Universal Periodic Review
The General Assembly, in its resolution 60/251, mandated the Council to
" undertake a universal periodic review, based on objective and reliable
information, of the fulfillment 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. "83
80 UN General Assembly 61st Session HRC elections, http://www.un.org/ga/61/elect/hrc/#candidates81 CHR Liaison information, http://www2.ohchr.org/english/bodies/chr/sessions/62/ngoliaison.htm82 HRC NGO participation information, http://www2.ohchr.org/english/bodies/hrcouncil/ngo.htm83 A/RES/60/251, p3http://www2.ohchr.org/english/bodies/hrcouncil/docs/A.RES.60.251_En.pdf
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The UPR consists of a review of each state during a three hour Working Group meeting
(assisted by a Troika of state representatives drawn by lot), during which the group
considers three kinds of submission:
Information prepared by the State itself: this can take the form of a national report84 or any
other information considered relevant by the State concerned. The presentation must not
exceed twenty pages.
A report by the Office of the High Commissioner on Human Rights of no more than ten
pages containing information included in reports of treaty bodies, special procedures,
observations and comments by the State concerned and other UN documents.
Other credible and reliable information provided by relevant stakeholders (like NGOs),
which are summarized by the Office of the High Commissioner in a document not
exceeding ten pages.85
One of the most positive aspects of the UPR is that all states know that their human rights
records will be debated to some extent at least every four years, and no state can avoid
censure indefinitely. This is certainly a positive step, and as such most states thus view the
process optimistically in hoping that it will encourage compliance and reduce politicisation.
From the NGO perspective, however, the UPR is not a strong deterrent, is not probing
enough and prolongs the politicisation of the Council.
The human rights NGO, Fdration Internationale des Droits de lHomme (FIDH)
expressed the general concern of non-state stakeholders:
the example of other international fora that use a peer review mechanism,
such as OECD, shows that this method leads to the adoption of consensual
reports. In the area of human rights, a 'consensual' assessment would de facto
lead to characterizing situations in a minimal way, or to selecting concerns, or
even to putting some 'non-consensual' matters aside. This non-denunciation
84 Prepared according to A/HRC/DEC/6/102, Guidelines for the Preparation of Information under UPRhttp://upr-info.org/IMG/pdf/A_HRC_DEC_6_102.pdf
85 Information summarized from upr-info.org(http://upr-info.org/-UPR-Process-.html)
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will be all the more serious since the peer review's asserted goals are its
objectivity, exhaustiveness and universality.86
NGOs and SP mandate holders have both been asking for a higher level of input in the
UPR, because mutual-evaluation could lead to mutual-exoneration by States in the
framework of their international commitments.87The International Service for Human
Rights (ISHR) also wished to express serious concern at the practice of some states which
have been lining up only to praise their allies, and that the UPR has not lived up to the
expectations of a move away from the politicisation of the past. Indeed, in many cases,
this politicisation has seemed more pronounced than ever.88
The idea that evaluating pledges and implementation of recommendations by other UN
mechanisms would make the UPR in any way more biased would seem disingenuous, yet
some want to keep the UPR primarily under state control. Some states favor using the
Universal Periodic Review (UPR) to evaluate the implementation of Special Procedures
reports, while other states prefer to keep the two procedures completely separate. They fear
the reports of the Special Procedures would undermine the non-biased character of the
UPR.89
Many observers admit that while the UPR subjects states to a new kind of scrutiny that has
not been seen before, its not very probing, it cant be, and it doesnt yield a listing of so-
called concerns normally, what the human rights problems are, or corporate
recommendations, what to do about them.90 Although this may be true of the state-
prepared report and of the inter-state debate in the Council, there is a brief listing of
concerns and recommendations in the OHCHR reports, though these are often of a
generalised and weak nature. States are encouraged to accede to various treaties, yet no
86FIDH intervention, General Assembly Informal interactive hearing on the UN reform, 23-24 June, 2005,http://www.fidh.org/article.php3?id_article=2660, See also November 2006 position report, Reform ofUnited Nations Mechanisms for Protecting Human Rights: Protective Capabilities Under Threat,http://www.fidh.org/spip.php?article383087 FIDH, Statement at the Annual Meeting of Special Procedures, June 26th, 200888 ISHR, NGO Statement on Item 6 Friday, 13 June 2008,www.reformtheun.org/index.php?module=uploads&func=download&fileId=327989 Reform the UN,http://www.reformtheun.org/index.php/eupdate/313190 Sir Nigel Rodley, Interview with John Lubbock, 14 August 2008
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mention is made of the violations already committed that would be covered by those
treaties. For example, Pakistan was praised for acceding to both Covenants of the
International Bill of Rights, and the Convention Against Torture.
Although the capabilities of the UPR mechanism may seem superficial, it could have been
an even more limited body. The Asian Forum for Human Rights and Development stated
that they believed the proposal by Malaysia to restrict the review only to the rights
contained in ratified treaties to be too restrictive and contrary to the purposes of the
UPR.91 Not only this, but it would have been totally contrary to the practice of the Council
as a Charter body, and fortunately lacked support.
Case Study: Bahrain UPR
Bahrain was the first state to be assessed under the UPR. Their country report includes the
reiteration of pledges to invite Special Procedure mandate-holders, and also briefly touches
upon the substance of communications with the SPs. For example, Requests for
clarification concerning human rights defenders have been about individual complaints
about non-registration of non-governmental organizations and action taken against the
leaders of these organizations when they protest about not being granted registration.92
Bahrain also showed their commitment to the process by sending a large country
delegation to the Council to oversee its UPR, and by setting up a number of ministerial
hotlines for citizens to make complaints: the Ministry of Labour has established a special
department to deal with labour grievances. The Ministry has set up a hotline to respond to
enquiries from employers and workers on labour law.93However, the number of
complaints ministries received from migrant workers or victimised women was not
reported, and no further information was given on the hotline apart from the number itself.
In contrast, many states were eager to congratulate Bahrain on its progress:
91 Asian Forum for Human Rights and Development, 28 June 2006http://www.forum-asia.org/index.php?option=com_content&task=view&id=124&Itemid=4992 A/HRC/WG.6/1/BHR/1, Bahrain UPR self-assessment report, 11 March 2008, p14http://lib.ohchr.org/HRBodies/UPR/Documents/Session1/BH/A_HRC_WG6_1_BHR_1_E.pdf93 Ibid, p10
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Qatar: We see how keen the leadership of the Kingdom of Bahrain is to the
promotion and protection of human rights94
Slovenia: Slovenia would like to further recommend to Bahrain to remove all
reservations to CEDAW and ratifying the optional protocol to CEDAW as well
as harmonizing Bahrains domestic legislation with regard to CEDAW.95
Saudi Arabia: I can only emphasise on this occasion how much your country has
achieved in the following areas. We have noted major political will by way of
ensuring that Bahrains international commitments are implemented in order to
ensure compliance with human rights. And this has been backed by major
development, indeed a cultural, social and economic renaissance in your
country.96
UK: It is clear that Bahrain has travelled a long way on the road to democracy
since 1999 We can also see from the background report that the move
towards democracy has been accompanied by a great improvement in the
human rights situation since 1999, particularly as regards civil and political
rights and we know there are now no political prisoners in Bahrain. There
remain however a number of areas in which further progress is needed for
Bahrain to meet its obligations under the various human rights instruments.97
In none of this is any specific criticism made about Bahrains treatment of the Shia
majority, whose Al-Wefaq party contested the 2006 elections for the first time, winning 17
of 40 seats98, although another breakaway party, the Haq bloc, remains a banned
organisation99. Saeed Shehabi, of the Bahrain Freedom Movement, noted that The
94 UN Webcast, 7 April 2008, http://www.un.org/webcast/unhrc/archive.asp?go=08040795 Ibid96 Ibid97 Ibid98 Gulf News, Bahrain Opposition Storms to Victory, 27 November 2006,http://archive.gulfnews.com/articles/06/11/27/10085541.html99 The Haq party arguably represent the majority of Bahraini Shia who were opposed to the 2002constitution.
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Societies Law, passed four or five years ago, requires political parties to register. The Haq
Party didn't register, or take part in the elections; it considers the present constitution
illegitimate, since it wasn't approved by the people. Al Wefaq is in an impossible position.
Their MPs had to take an oath of loyalty to [the] constitution, although they said they didn't
accept it.100
The relative liberalisation of the electoral system came in for effusive praise by many
states, who simultaneously ignored the blatant gerrymandering engaged in by the
government in order to ensure a majority of Sunni political representation in parliament101.
However, Bahrain did admit that their consultations were not holistic, saying that The
time frame for preparation of the report represented something of a constraint with regard,
for example, to coordination with all the relevant parties.102
Of particular concern in the case of the UPR on Bahrain was how the monarchy seemed to
react once the process had been completed. The King was particularly displeased with
Bahraini human rights activists like those at the Bahrain Centre for Human Rights,
criticising their appeals to the West to be tougher on Bahrains human rights record by
saying,
We hear clearly on daily basis fake cries for help directed to the west. I say
to these who face these cries: have you not seen Abu-Graib prison (in Iraq)?
Who administrated that prison? Do you think that those people will give you a
priority in their agenda?103
This seems to confirm the fear expressed by some states that the envisaged periodicity of
the UPR might result in protection gap. [sic]104
100Saeed Shehabi, email exchange with John Lubbock, 16 September 2008101A/HRC/WG.6/1/BHR/3, summary of stakeholders submissions to Bahrain UPR, 11 March 2008, p7http://lib.ohchr.org/HRBodies/UPR/Documents/Session1/BH/A_HRC_WG6_1_BHR_3_Bahrain_summary.pdf102 Ibid, p5103 BCHR, July 23, 2008,http://www.bahrainrights.org/en/node/2367104 A/HRC/3/4, Implementation of Human Rights Council mandate, p4,http://www2.ohchr.org/english/bodies/chr/special/annual_meetings/docs/14th/A.HRC.3.4.pdf
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Why has the UPR so far seemed disappointingly ineffective? Certainly the political climate
of its creation has watered down the process significantly, so while its authority is strong in
treating all states equally, its capacity to censure and publicise the grossest violations seems
to be limited. Council President Jan Eliasson revealed many state delegations feelings on
the UPR:
Many of you have also pointed out that this review should not create a
burden of new or redundant reporting obligations, that it should not duplicate
the work of treaty bodies, and that it should be a light mechanism. Many of
you also indicated that the time allocated to the review should be limited. 105
The Cairo Institute for Human Rights Studies made a useful submission to the HRC on the
Bahrain UPR, criticising the process itself in a number of ways. They complained that
NGOs were required to submit their reports three months before the government report is
drafted, allowing the state to review these NGO submissions.106 Even worse, these NGOs
were prevented from meeting with the delegations of the Troika supervising Bahrains
UPR:
the Presidency of the Working Group on UPR told the NGO delegation that
the meeting requires the pre- approval of the country under review; a
restriction that has no basis in the procedural rules of the UPR process and is
in contradiction with the usual methods of operation at the HRC which allow
NGOs access to independent experts, rapporteurs, and state
representatives.107
Former SR on Racism Doudou Dine noted that you have to consider the UPR in a
dynamic process, because I have been disappointed by the reaction of some media, but the
media react very quickly, they dont take into account the factor of time and dynamic. So
105 Statement by Jan Eliasson, President of the General Assembly, on the draft Human Rights CouncilResolution, 23rd February 2006, p8106 CIHRS, A/HRC/8/NGO/42, Written statement on Bahrain UPR, 28 May, 2008, p2http://daccessdds.un.org/doc/UNDOC/GEN/G08/139/25/PDF/G0813925.pdf?OpenElement107 Ibid
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it is acknowledged that the UPR is a work in progress. Dine also had a promising
recommendation that would strengthen the objectivity and authority of the UPR process:
Another factor of refinement which I was solely myself advocating was that
the basic documents submitted to the Human Rights Council for each country
are looked on by the Special Rapporteur and particularly they are analysed
and recommendations should take place and they should be consulted, which
is not the case now, by the UN High Commissioner Secretariat on what
recommendations should be included in the basic document. We are not
consulted, the secretariat do their bureaucratic work, so they dont ask me for
example what I put on Canada or what I put on Colombia, or Japan, what is
the recommendation which I consider the most important. They choose what
they want without consulting us.108
Dine also felt that SP mandate-holders should have a role to play in the dialogue on the
country reports, so that where the Council debates the case of countries, we should be
present in the table and be given the right to intervene, to challenge. Because one of the
weak points of UPR is the factor of challenge. Governments are not tempted to challenge
other governments.109
However, despite these negative points, those in OHCHR feel that it is a progressive step
which could facilitate further reform in the future. As one OHCHR official comments:
I think the Universal Periodic Review is really a possible way at least of
reviewing everybody, and in this sense it is an achievement, but at the same
time, you cannot change the world in one day. And I think almost everyone
will agree with this, the worldwide context for human rights is not an ideal
one at the moment. And if you start big institutional reform in such a context,
its actually quite positive if you have certain achievements at the end.110
108 Doudou Dine, Interview with John Lubbock, 9 September 2008109 Doudou Dine, Interview with John Lubbock, 9 September 2008110 Confidential communication, OHCHR SP Secretariat Official, Interview with John Lubbock, 29 August2008
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Special Procedures
The mandate of the HRC tasks it to:
assume, review and, where necessary, improve and rationalize all mandates,
mechanisms, functions and responsibilities of the Commission on Human
Rights in order to maintain a system of special procedures, expert advice and
a complaint procedure.111
Unfortunately, given the hostility of many states to UN intervention and criticism, this
means that both country-specific and thematic mandates, as well as the independence of
mandate-holders themselves, are at risk.
The new method of appointment of mandate holders is one example of genuine
compromise between the two main rival groupings of the West and the African/OIC states.
The WEOG wanted the President of the Council to select mandate-holders from candidates
put forward by various stakeholders while the African/OIC states wanted to break with
previous practice and have states elect mandate-holders. Over the course of the
negotiations, some countries in both groups became more flexible and supported the idea of
a hybrid model that would combine appointment [by the President] with elections.112
But consensus may sometimes weaken the capacity of the Council. In 2007, there was a
Chinese-led move to curtail the Councils ability to adopt country specific mandates.113 The
EU built a majority against this move, but at the price of removing mandates on Cuba and
Belarus, continuing a trend of removing divisive country mandates, like on Iran (2002) and
Sudan (2003)114. The 2003 mandate resolution only failed by 26 to 24 votes, and there are
111 A/Res/60/251, p3http://www2.ohchr.org/english/bodies/hrcouncil/docs/A.RES.60.251_En.pdf112 Democracy Coalition Project, HRC Analysis on Government Positions on Key Issues, 2006-7, p3http://www.demcoalition.org/pdf/HRC%20Indicators%20Analysis%20Doc%20Final.pdf113 Gowan, R., Brantner, F., European Council on Foreign Relations, A Global Force for Human Rights?An Audit of European Power at the UN, p37,http://ecfr.3cdn.net/3a4f39da1b34463d16_tom6b928f.pdf114 The Sudan mandate was reinstated in 2005 following the severe human rights violations in Darfur.
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often political considerations that mean removing a country mandate is seen as a tool for
encouraging other kinds of cooperation.
Farzin Hashemi, of the Peoples Mujahedeen of Iran (PMOI) and the National Council of
Resistance (NCRI), believes that there were two factors the domestic political situation in
Iran, and the international context in the Middle-East that led to the decision on Iran. On
the domestic side, the moderate President Khatami had diplomatically started to invite
some thematic Rapporteurs, including the SR on Violence Against Women, though not the
SRs on Extrajudicial Execution or Torture. Khatami
had told the European countries that in order for him to introduce reform in
Iran he needs to have some positive elements from Western countries to
overcome his domestic problem and particularly the obstacles created by [the]
other faction115.
Tehran was then able touse the international leverage it had within the OIC
to set up a front against any criticism of Islamic countries on the pretext that
the West is hostile to Islam and our culture and their criticism of us is due to
our Islamic tradition. Simultaneously, highlighting the shortcomings of
Western countries such as the condition of immigrants in Europe, particularly
the Muslims, or cases such as Guantanamo. This tactic was useful, as even
countries which were not friendly with Tehran, for domestic reasons felt
obliged to go along with the mullahs regime. They did not want the mullahs
to present themselves to the Muslims as the only one country which defend[s]
Muslims around the world and is committed to preserve Islamic culture.116
Thus the Iranian leadership cynically used the international situation and a perception that
they had reformed domestically to line up the OIC in removing the SR on Iran or risk being
115 Farzin Hashemi, email exchange with John Lubbock, 30 August 2008116 Ibid
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seen as anti-Islamic domestically. For the HRC, moderate cooperation should not be seen
as a reason to remove a country specific mandate.
Country mandates have always been hard to set up and keep going. In the case of the
Working Group on Enforced and Involuntary Disappearances (WGEID), Argentina
accepted a resolution for a universal thematic procedure in return for not being specifically
named and shamed by a country-specific one as Chile has been.117 This trend is likely to
continue with the creation of the UPR, which Rodley believesgives states who dont want
to vote for country mandates the argument that, well, we should wait to see how UPR
goes.118
However, in cases of systematic rights abuses, Country procedures are still very important,
and their coordination with thematic mandates is necessary to ensure that they cannot be
attacked with ad personam criticisms of their work. There is no comparison between
universal and country-specific procedures, which are, according to Nigel Rodley,
following the situation consistently visiting the country once or twice a
year if permitted, and reporting annually on the nature of the problem. In
terms of activity and transparency and accountability, theres much more
going on with a country mandate.119
Flood also believed that with individual states, country-specific procedures seem to have
more impact120 than thematic ones, and it would be unfortunate if they were to disappear
altogether.
The SR, Walter Kalin, has noted that the Council still has a strong mandate to look at country
specific situations, in that GA Resolution A/RES/60/251 entitles the Council to deal with the
situation of human rights in a specific country in six different contexts. The most important of
117 Flood, P.J., The Effectiveness of Human Rights Institutions (Praeger, 1998), p55118 Sir Nigel Rodley, Interview with John Lubbock, 14 August 2008119 Sir Nigel Rodley, Interview with John Lubbock, 14 August 2008120 Flood, P.J., The Effectiveness of Human Rights Institutions (Praeger, 1998), p43
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these is the Universal Periodic Review.121 He fails to mention, however, the possibility that the
UPR could be used as an excuse for terminating other c