Reform: Where to now for the CHR?

Proposals and prospects for the reform of the UN Commission on Human Rights

GARETH SWEENEY 

The recommendations of the High Level Panel for reform of the United Nations, and more specifically in this context, the reform of the Commission on Human Rights (CHR), has now faded into the distance following the release of the recommendations of the Secretary General in his report of 20 March 2005, In Larger Freedom: Towards Development, Security and Human Rights for All. The report of the High Level Panel, whilst detailed in its evaluation of other bodies of the UN, nonetheless fell far short in its perfunctory assessment of human rights mechanisms. Critically, its emphasis on the mainstreaming of human rights throughout the UN in principle did not manifest itself in practice. Regarding the Commission, it recognised the symptoms but did not address the causes. 

The Secretary General was no doubt aware of the former shortcomings, although has arguably neglected the latter. Consequently, his own recommendations on reform, intended to be drawn from those of the High Level Panel, draw least from the recommendations concerning reform of the CHR. In fact, they are, in the most crucial aspect, almost antithetical. They are also sweeping, and, to date, devoid of detailed explanation beyond the broadest parameters, here mirroring the High Level Panel. This has left States and NGOs in Geneva in an evident state of bewilderment, and shall be on the table as early as September 2005 at a meeting convened in New York to discuss their possible implementation.   

The Content and Surprise Shift in Direction           

The report of the High Level Panel made some reasonable observations and recommendations, albeit somewhat self-evident and/or at the periphery of concerns. Relative to the present state of play, it suggested elevating the CHR to a "Human Rights Council", independent of and equal to the Economic and Social Council as Charter bodies, "reflecting in the process the weight given to human rights…in the Preamble of the Charter." It did not, however, elaborate in any manner on how this may come into being. Most critically, with seeming disregard for the above recommendation, it proposed universal membership and the absence of any criteria. The concept of universal membership was not accompanied by any reasoning as to how this would improve the credibility and professionalism of the Commission. 

Thus, the Secretary General's proposals arrived in bare contrast to those of the High Level Panel, inculcating the position of human rights within the UN apparatus by according it equal billing in the title of the report. The proposal to establish a Human Rights Council to replace the Commission entirely is an inventive interpretation of the Panel's recommendation, its separation from ECOSOC as a body of standing subsidiary or even equal to the GA a welcome re-iteration; the idea that it be "smaller", require strict criteria for membership, sit permanently or at least when required, and be elected by a two-thirds majority of the GA is not only new but directly contradicts the all-in universalism of its predecessor. 

In his address to the Commission on 7 April 2005, the Secretary General elaborated very slightly upon his proposals for reforming the treaty bodies, the OHCHR (neither addressed here but both equally worthy of close attention), and the Commission. The CHR's strengths he noted in three lines, recognising its standard setting functions and country specific resolutions, and close work with civil society. He proclaimed, however, that "politicisation" of the sessions has undermined its ability to perform. He added that the Council would be rotational, and would evaluate the fulfilment of all human rights by all states. Such a Council, he states "would allow for a more comprehensive and objective approach." 

This is the totality of Annan's recommendations at the time of writing, replicating the High Level Panel only in the brevity of its pronouncements and its distinct lack of analysis of the inherent problems prior to moving toward reform.  This has produced varying understandably tentative hypotheses on how best to proceed. In any case, the Secretary General requests that member States reach an "early agreement in principle to establish a Human Rights Council." The finer points can then be mapped out. But is there enough to agree on in principle at such an early stage?  

Perspectives and Concerns Raised to Date   

The point has been raised that few have sought to explain what a Human Rights Council may offer that the Commission could not likewise offer under internal reform. It is impossible to pinpoint at this stage what the Council may offer that the Commission could not without first analysing in detail the institutional failings of the Commission itself. Only then can it be measured whether the Commission is at all capable of reform, and, if not, how a Council would better function. 

As for the recommendations as they stand, the suggestion that human rights be elevated to a position of standing equal, or at least directly subsidiary, to the General Assembly is a welcome one by most. It is difficult at least for those who would privately prefer it to remain a secondary distraction to say so in public. However, an equal standing with the GA would require an amendment of the Charter. This would cause all manner of complications that many member States would find objectionable and unnecessary. 

The actual size of the smaller Council has not even been suggested, nor the exact value in streamlining. Shooting square between one and fifty-two, a figure in the region of twenty five would most likely mean (first theoretically discounting criteria) an automatic five seats for the permanent Security Council members, and a subsequent insistence that those pressing for new permanent seats be accommodated, bringing the number to around twelve. If India is there, Pakistan will insist that they are entitled to be there also, as will Argentina in suit of Brazil, and so forth. Politically savvy member States such as Cuba will ensure General Assembly election. This means, in effect, a cat fight at the GA between some the remaining 175-odd member States over perhaps four or five seats.

Even the voting process of a two-thirds majority is unclear as to whether this would apply to individual member States or regional blocs. If the former, it could be extremely convoluted, if the latter, what happens if a two-thirds majority is not achieved? 

The rotational suggestion is newer, but how credible would a Council be without the US, China, or India, for example? 

If the requirement of stringent criteria is introduced to the equation the problem is compounded. Firstly, who can be expected to draft these criteria? It has been highlighted that high criteria will limit the possibility of maintaining geographic representation, and will not enhance credibility if it is perceived as a Council of Western imposition. On the other hand, low criteria, self-evidently, are of little worth. The suggestion of criteria being met upon admission to any body - for instance, automatic standing invitations to all Special Procedures and assurances of ratifications of core instruments - would appear a more workable suggestion, although few are discussing it. The idea of criteria merits serious consideration, but is presently far from clear.     

The notion of moving the Council to New York has also surfaced, despite no mention by the Secretary General of such a move. What this would accomplish is not self-evident. What most be borne in mind, however, is the contribution of NGOs to the work of the Commission, a contribution that would be lost in New York given its traditional treatment of NGOs. Ramos Horta and Asma Jahangir, to name but two, have questioned why such mechanisms should not be located in Africa or Asia. Why not indeed? 

And to return to the contribution of NGOs, whether or not the Council sits permanently, it would be essential that it retain its annual six week focal sessions in order that NGOs may contribute effectively, lest NGO input be relegated to those who can afford to sit in Geneva or New York all year round. 

So Why Now? 

There are certain more general aspects of the issue of reform that grate with many people across the spectrum. One is why it has taken the Secretary General until now to make his proposals as a comprehensive package when all involved recognised the poor state of the Commission at the very beginning of his term. Why the rush now when these negotiations could have been taking place, independent of negotiations on reform of the entire United Nations, for the last six years? Conjecture on deflection from bad publicity and/or leaving a legacy have naturally surfaced. 

The 'comprehensive' package approach itself is problematic. It offers member states the opportunity to declare support for certain aspects, but as they may have difficulty with other details, feel that they could not adopt the 'package'. We have heard this phrase emanating already as a language of non-commitment. 

Finally, by way of motivation and the Secretary General's comments on the need for objectivity, the reference in his speech on April 6 to increased "politicisation" in the Commission is odd. The Commission, quite simply, is a political body. That is its intention. The political process is an intrinsic feature of any intergovernmental body, and there will always be ideological clashes. Any inference that a Council could be any different, and that this would necessarily be a good thing, appears naive.  

And What Next? 

It is well understood that the Commission suffers from a lack of credibility and professionalism. On this basis reform, or workable reform, is welcome. Yet it would appear that many are intent on burying the Commission without considering what the Council could conceivably offer in its place, as if reform in itself provides automatic improvement. This is a mistake to which many in the NGO community have fallen foul, belying a lack of pure motive for their demands. 

All aspects should be discussed and analysed at length, rather than fast tracking a concept that may not offer new solutions, yet upon establishment may be irreversible. To this end, not only the international community, but the Secretary General himself, has a long way to go in elaborating upon his proposals.

Human Rights Features invites views and feedback on the Secretary General's proposals, on or off the record, for a possible follow up article next week. Please contact us at hrf@aphrn.org or on Geneva mobile numbers 079-748 2543 or 079-589 6671. 

Comments may also be sent to the South Asia Human Rights Documentation Centre office in New Delhi after the current CHR session ends.  

South Asia Human Rights Documentation Centre

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New Delhi - 110029, INDIA

Tel/Fax: (+) 91-11-2619-2717 / 2706 / 1120

Email: secretariat@aphrn.org

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INTERVIEW

‘Spirit among NHRIs is very positive right now’

Orest Nowosad, Coordinator of the National Institutions Unit in the OHCHR speaks to Human Rights Features...

HRF: Has there been any thinking within OHCHR on the refining of membership criteria for NHRIs that are members of the International Coordinating Committee of National Institutions (ICC), since some of them clearly contravene the Paris Principles? 

Orest Nowosad: I think we have to look at it in the overall scope of what we are trying to do with the reform of the whole human rights movement. Within the Commission on Human rights, there is a report of the Secretary General 2005/107, which talks about eligibility criteria of access to the Commission, and part of the process is strengthening what we call the credentials procedure of the International Coordinating Committee. And I believe if we can strengthen that procedure and refine it, that will provide part of the solution to the actual membership of the International Coordinating Committee. And what is really interesting about the proposal is that there would be a revisiting of accreditation every five years. So, there is no such thing as lifetime membership which has been in some ways a problem because institutions do change, but there has been no capacity really to revisit their accreditation. We revise the rules of procedure of ICC also to allow the chairperson or members of the ICC to call for revisiting of the accreditation of National Institutions again as part of the strengthening of the process. 

HRF: Any ideas regarding the need for elaboration of the Paris Principles themselves? Particularly in the light of its lacunae such as the lack of non-derogable standards, the lack of clarity regarding the implementation powers of NHRIs and other provisions of the Principles? 

Mr. Nowosad: The language we have used in terms of the Paris Principles is the reflection on the Paris Principles - what I would say is giving some meat to the bone. And in December 2003, we held a very good round table here in Geneva, and that was part of [the process]. What we're also doing, as part of this process, is we're holding round tables of about 25 institutions per round table on thematic issues or areas of interest. For example, we did one on the administration of justice. The intention there is to look at the whole quasi-judicial powers section.

            I think the reopening of the Paris Principles is not practically feasible right now. What we are trying to do is educate better what they mean, what independence means, what pluralism means, what accessibility means, and defining them step-by-step. That is not always so easy when you are trying to do it in a different country context. I think one thing we have to be very careful of is [that] we maintain the Paris Principles as universal, [that] we don't go to a system of regional application. That has also been suggested, and that is not appropriate. 

HRF: Coming to a particular situation, have there been any ideas regarding the situation the Nepal Human Rights Commission finds  itself in? What can OHCHR and/or other regional or international mechanisms such as ICC contribute to pressure on a government that seeks to undermine or possibly destroy a national institution? 

Mr. Nowosad: At the International Coordinating Committee meeting on Thursday there will be a discussion about early warning procedures for national institutions, and we hope that they will be adopted. There are number of steps to be taken, clearly there is a role for the Office of the High Commissioner for Human Rights (OHCHR) to engage when an institution is under threat. There is also an obligation on the part of the OHCHR to stress to an institution which is under threat that it is not necessarily the only part of the society which is under threat, and call on that institution to support civil society and stand behind civil society, and not only worry about its own survival but worry about the survival of society at large. 

            The second step is peer review, the pressure put by the regional groups. We mobilize regional groups when the institution is under attack. That is also extremely helpful. But not only that, it is very important, as we saw in the case of the Danish Institute when it came under attack, that we were able to mobilize civil society and we were able to mobilize the business community and Parliamentarians. So there has to be a concerted action. But I think for that to be successful, the institution itself has to be strong enough to stand up and say, “We are under threat, we need support.” And it also has to be strong enough to stand up for others who may also be under threat. 

HRF: Any comments on the prospective role of NHRIs in the context of the proposed reform process of the Secretary General?  

Mr. Nowosad: Well, I think the reform process is looking very much at implementation and taking things to the national level. The High Commissioner herself has said that we have a large body of international human rights norms. What we need to do is stop talking about those norms and start actually implementing them. And in that regard, national institutions have a direct role to play. The reform of the Commission, the report that I mentioned earlier, 107, goes to the heart of this to say that we want national institutions to come to the Commission and add substance to the debate. We don't need national institutions coming and reporting on seminars they have undertaken. We actually need them to provide a critical analysis of particular issues. And that in itself, I think, is a part of reform.

            The other element of the reform of the Secretary General is what we've referred to as Action 2. And Action 2 means mainstreaming human rights throughout the UN family. National institutions have a direct role to play at the national level in assisting the UN family in understanding human rights principles. And the second part of Action 2 is talking about building national protection systems and again national institutions are at the heart of that. So I do see them very much throughout that process. 

HRF: In terms of better consultation between civil society and national institutions - not just at the regional level but at the international level too - what is the OHCHR doing to facilitate access to NGOs to the ICC meetings, perhaps at least the open sessions? 

Mr. Nowosad: I think the example of the seventh international conference of national institutions held in Seoul is the one that we should be looking at. That was a terrific opportunity, which was well embraced by both civil society and national institutions. We are now planning for the eighth international conference to be held next year and we are stressing very actively, with the support of the Chair of the ICC, that we must also have another NGO component and full NGO involvement as we saw in Seoul. What was very interesting in Seoul was that they were part of the working groups. The ICC meetings aren't closed meetings. The ICC meeting has 60 members of the ICC, but it is also open to the larger group of national institutions, and if requested to the Chair of the ICC, civil society can participate in the meetings. There is clearly a business portion of the meeting, which is really of direct interest to the national institutions, but I would encourage, and I think the ICC would welcome, the participation of NGOs in thematic discussions.

            This year we have two thematic round tables as parallel events - one on the role of national institutions and minorities. And civil society should be present there. Also, one on HIV/AIDS and national institutions, and civil society will be part of the panel. And then we have thematic discussions on the role of national institutions and migration, and civil society should be willing to discuss these issues. What we want to do is to say that, look, both civil society and national institutions can contribute to reinforcing each other, understanding each other and adding substance to the discussion together.

            So I think the Seoul example was well beyond our expectations. And we do have to push that to the regional level as well. I was at a meeting of the regional coordinating group of European institutions and on the agenda was how to better engage civil society and their work. So it's now on the map. 

HRF: You spoke about mainstreaming the work of national institutions across the UN system and a key issue is that sometimes we hear divergent approaches to some UN agencies' efforts to create national institutions under their governance programmes and the initiatives taken by your office. How do you plan to streamline this and get them to work in unison? 

Mr. Nowosad: It's a very good point because we've got to speak in one voice and I think first we need to better educate the UN family on what a national human rights institution is. And I am not trying to be technocratic in my approach but what we are doing this year is we're developing training modules on national institutions so that we can go to a country context and train the UN country team on what a national institution is. We recently had a resident coordinator come to us to speak about support for her country's institution or developing an institution. But at the same time she said I also want you to come for a day or two and train the staff on what a national institution is. That has to be the starting point. I don't think we should be encouraging UN country teams to be establishing or strengthening institutions when they don't understand what they are. And in fact it can run to a counter-purpose. You can be creating a fig leaf institution which is in the interest of nobody.

            If you actually look at the programme of the Office of the High Commissioner, of its National Institutions Unit, we are very much focusing on the UN country teams over the next couple of years. We now have a strengthened Unit, we have six staff divided among geographical focal points, and with the training programmes we would be able to respond more actively to those requests. But it is absolutely fundamental that the knowledge base be as across the board as possible.

            The other way of doing it too is by actually tapping into the good practices of national institutions and bringing them along to events or assessments rather than the easier and more traditional - and I think more costly and less effective - approach of consultancy-based support. For example, we are going to Chile and Uruguay in a few weeks’ time. We will actually be taking with us representatives of national institutions to be able to demonstrate how they function with them in practical sense. 

HRF: Are you considering perhaps encouraging the replication of the regional model provided in Asia by the Asia Pacific Forum in other regions? 

Mr. Nowosad: I wouldn't use the term replication because every region is different. But I would say we should build on and learn from the good experience of the Asia Pacific Forum. And we are already doing that. In 2002, we had the Network of the Americas established and the membership of the Network of Americas is similar to that of the Asia Pacific Forum. They do not do their own review mechanism in terms of applicants because they only accept as members those institutions which have been accredited by the International Coordinating Committee. They are also now reaching out to civil society and bringing civil society to their events which the [Asia Pacific] Forum has done very effectively.

            We are now working with the coordinator of the African group to see how we can strengthen the Secretariat of African National Institutions which has been based in South Africa for three years. And in fact, last week, we worked very actively on a series of documents on how we can move the African Secretariat forward, similar to an Asia Pacific approach where you have a coordinator, a secretariat, and a programme of activities.

            In the European context, they have also evolved. I don't think you’ll have the same structure as the Asia Pacific Forum in Europe because Europe is quite a different region. But they are also conscious of the need of existing Western European institutions in embracing those in Central and Eastern Europe. We recently had a discussion in Cairo on national institutions of the Arab world. Again, how the consultation will develop depends on those groups of states and institutions. But for us, what we are encouraging is that membership revolves around standards and the Paris Principles. And that we are not, as an Office, seen as a funding agency but as a partner in this initiative. 

HRF: Any issues that you would like to highlight that civil society and the wider audience which follows human rights in the UN system need to be aware of? 

Mr. Nowosad: In terms of the national institutions movement, I think it is a movement but I wouldn't say we should be running. I think we should be walking cautiously and that we should be looking carefully hand in hand with civil society and national institutions. I think let's build on the cooperative spirit of Seoul. And let's be objective and critical at the same time. There is a need for dialogue and let's keep that dialogue going.

            I think the spirit among national institutions is a very positive one now and the door for civil society engagement with national institutions is extremely powerful.

Week 4 - round-up

Playing sneaky 

The Danish delegation is leading again this year the negotiations on a draft resolution on torture and other cruel, inhuman or degrading treatment or punishment. What was a decent draft is being watered down during the negotiations by the US delegation in an attempt to limit the draft’s references to other cruel and inhuman treatment or punishment. The US maintains that its treatment of detainees does not amount to torture, and that its obligations not to subject persons to cruel, inhuman, or degrading treatment end at its water's edge. The US apparently hopes that by limiting the references to "other forms of ill-treatment" it can maintain its excessively narrow interpretation of its legal obligations and avoid the political embarrassment of being condemned by the Commission. 

First, the current draft's condemnation extends to "all forms of torture and other cruel, inhuman or degrading treatment or punishment, which are and shall remain prohibited at any time and in any place whatsoever and can thus never be justified". It is essential that the prohibition retain language extending the State obligation to any time or place and the prohibition permits no justification for its breach because the US administration considers its obligations under the CAT prohibition of cruel, inhuman, or degrading treatment to be coterminous with similar prohibitions under the US Constitution. According to US Attorney General Alberto Gonzales, the current US administration considers that when it subjects persons outside the territory of the US to cruel, inhuman, or degrading treatment it is "as a legal matter" still in compliance with its obligations because "aliens interrogated by the US outside the United States enjoy no substantive rights" under the relevant US Constitutional provisions. Thus the position of the US government is that "there is no legal prohibition under the Convention Against Torture on cruel, inhuman or degrading treatment with respect to aliens overseas." This allowed Secretary of Defence Donald Rumsfeld to note with approval that "what has been charged so far is abuse, which I think technically is different from torture" and did not entail a violation of US international legal obligations. 

The Commission should take this opportunity to observe that reservations to CAT that limit the territorial or temporal obligation of a State are contrary to the treaty's object and purpose and are void. Anything short of such a clear and direct statement will ensure that the US government continues to use what it considers to be a viable loophole in its obligation under CAT. 

Second, the draft Resolution importantly includes a condemnation of public officials that act to "legalize, authorize, or condone torture under any circumstances", thus permitting no justification for acts of torture or other ill-treatment. A strong and clear statement of the absolute prohibition of torture and other ...from page 2 - Week 4 Round-up

ill-treatment is needed to rebuff the US administration whose official policy from August 2002 until late December 2004 maintained that torturing terrorists in captivity abroad "may be justified", and that international laws against torture "may be unconstitutional if applied to interrogations" conducted in the "war on terrorism", thus authorizing the President to sanction and immunize acts of torture. Alarmingly, the position that the President could immunize perpetrators of torture from criminal liability was recently maintained by Alberto Gonzales when he was confirmed to the top law enforcement position in the United States. 

Third, the current draft text recalls that states shall not in any way transfer a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture or other cruel, inhuman or degrading treatment or punishment. The US has engaged in a well-documented practice of out-sourcing torture of alleged terrorist suspects to countries that even the US State Department recognizes engage in torture and prohibited ill-treatment. The CIA has been granted authority by the US Congress and President to use a program of so-called "extraordinary rendition" whereby private jets are used to ferry suspects to Syria, Saudi Arabia, Egypt and other countries where they are subjected to torture and other prohibited ill-treatment during interrogation. Jane Mayer recently wrote a lengthy exposé on the US "extraordinary rendition" practice, available at:

http://www.newyorker.com/fact/content/?050214fa_fact6. 

This practice is in clear violation of US obligations in international law, including the Convention Against Torture article 3 and the Fourth Geneva Convention article 49. Although the US purports to obtain "diplomatic assurances" that rendered suspects will not be mistreated, according to Human Rights Watch and other NGOs these are frequently violated. One of several illustrative examples is that of Australian Mamdouh Habib, who was rendered to Egypt and tortured for six months before being returned to Guantánamo Bay and eventually freed without charge on January 28, 2005. The Commission must make clear that this practice is illegal, and that empty promises do not absolve the US of its obligation not to transfer persons to any State when it has substantial grounds for believing that the person would be in danger of being subjected to torture or other prohibited ill-treatment. 

Quick swipes 

The Mexican resolution on counter-terrorism now appears to be far from a foregone conclusion. Rather than challenge the intention to establish a Special Rapporteur, given the overwhelming groundswell of support within the human rights framework, the US have aligned themselves once again with India and Russia to this year attempt in substantially weakening the mandate of the Special Rapporteur. Their precise methods are as yet unclear, as Friday signalled their first real contribution to the debate. What is clear, however, is India's co-ordination in the plot. Their methods will become apparent this week. A different kind of march to freedom, no doubt. 

The mandate of the Special Rapporteur on Mercenaries is gone. In a quick fell swoop, a Working Group has replaced it. The Cubans had always considered it as their turf, their little extension of the war against the Miami exiles and Washington. On 4 April 2005, they moved to "end the mandate of the Special Rapporteur on the use of mercenaries as a means of impeding the exercise of the right of peoples to self-determination and to establish a working group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, made up of five independent experts, one from each regional group, for a period of three years..." 

Finally, on Nepal, the Foreign Secretary from Kathmandu flew into Geneva last week and initialled a Memorandum of Understanding with OHCHR. The secrecy surrounding the visit and the agreement that paves the way for a resolution under item 19 indicates that we may be here next year grappling with the issue once again.

WG ON MINORITIES

Shutting the door on minorities

New draft resolution on the rights of minorities seeks to cut down on the duration of the Working Group, which may reduce the space for small NGOs from across the world

Last Thursday, the first meeting on the draft resolution on the rights of persons belonging to national or ethnic, religious and linguistic minorities took place behind closed doors. What is so new and spectacular about this resolution that the public is not allowed to know? What new plan have our distinguished state delegates cooked up so secretly? 

Since the 2004 report of the High Commissioner, entitled "Rights of persons belonging to national or ethnic, religious and linguistic minorities" (E/CN.4/2004/75), the proclamation of an "international year for the protection of the world's minorities" as well as the establishment of a Special Representative of the Secretary General on minorities and a voluntary fund has been discussed in the conference rooms and corridors of the United Nations, in New York and in Geneva. The report outlines the existing mechanism for the protection of minorities, which currently consists only of the UN Working Group on Minorities (hereafter 'Working Group'), which is unable to grant sufficient protection for the approximately 18 percent of the world's population who are minorities. 

This is due to the limitations of the mandate of the Working Group imposed by the international community. The report of the High Commissioner pointed to gaps in the protection system for minorities, which arise, for example, when state authorities do not recognize the minority status of members of certain groups within a community, or when citizenship is denied to persons belonging to minority groups. The Working Group is meant to provide a forum for dialogue between minorities, governments, and academics, where minorities can explain their concerns directly to governments. However,, the mandate of the Working Group does not allow for direct intervention by means of country visits or receipt of individual complaints. Currently, there is no emphasis on early warning in the work of the Working Group and the absence of a special procedure makes it impossible to address tense situations regarding minority groups before they result in humanitarian catastrophes. 

The Austrian delegation, which traditionally sponsors the resolution on minorities within the UN Commission on Human Rights (CHR), attempted to allow other CHR members to decide on the establishment of a new mechanism in the field of promoting and protecting minority rights. The Austrians found themselves in good company since not only the High Commissioner, but also Resolution 2004/13 of the Sub-Commission, the Working Group on Minorities, and last but not least, a wide range of NGOs from all around the world called for the restructuring of the minority protection system of the UN. A close look at this year's draft resolution on minorities reveals, however, that the suggestions made by the main sponsor fall far short of the proposals that have been made by other actors involved, since the new paragraphs focus exclusively on the establishment of a Special Representative on Minorities. Further efforts such as the proclamation of a 'year for minorities' are not included. 

The newly added operative paragraph (OP) 6 defines the mandate of the Special Representative as to "promote the implementation of the Declaration on the Rights of persons belonging to National, Religious and Linguistic Minorities" as well as to "engage in dialogue with governments" and "other interested actors" on the effective implementation of minority rights. Moreover she or he is supposed to "identify best practices and possibilities for technical cooperation by the OHCHR", "apply a gender perspective" in the work and "cooperate closely" with existing national, regional and international mechanisms relating to minorities, in order to avoid duplication and waste of the limited resources available to the UN to protect human rights. 

According to the delegations of Hungary and Switzerland, who have traditionally co-sponsored the resolution on minorities, this rather weak mandate is needed in order for the resolution to be approved by other members of the CHR. However, the question remains whether this rather broad mandate will include important components such as country-visits and urgent communications. 

According to the Austrian delegation, the phrase "engage in dialogue with governments" is to be interpreted widely and is supposed to include these activities. The mandate of the OSCE High Commissioner for National Minorities reflects the language in OP 6 and the UN Special Representative is meant to focus her/his work on offering good services, early intervention through urgent actions and collecting international data on best practices to provide them on request to governments that face difficulties involving minorities. 

The discussion on the new draft also revealed that several delegations, especially the United Kingdom and the United States, have concerns about how to finance the new mechanism if it is established. Latvia, among others, in response suggested improving the efficiency of the existing Working Group rather than inventing new procedures. On the other end of the scale of solutions, the UK suggested replacing the Working Group, bearing in mind that it would be an inefficient and costly task. 

The main line of thought, however, seemed point to the streamlining and rationalizing of the mandate of the Working Group by concentrating on its role as a mere forum for dialogue and conceptual work, and cutting down the duration of its session from five to three working days, which are supposed to be held in parallel with the session of the Sub-Commission. Proposals thus indicated that the Working Group was to function on a smaller budget, freeing resources to finance the Special Representative. 

What seem to be reasonable suggestions to improve the standard of protection for minorities, however, must be viewed more critically on second glance. The motives behind sapping the resources of the Working Group become clear when one takes into account its special features and working methods. It is a unique mechanism within the UN system because it facilitates the access of civil society to its meetings by granting accreditation to academics and non-governmental organizations (NGOs) without ECOSOC status, unlike most other mechanisms. NGOs interested in participating in the meetings need to send information about their organisation and references to the Secretariat, upon receipt of which the Secretariat jointly with the Chair of the Working Group, decides on accreditation. 

If the meetings of the Working Group would be held in parallel with the Sub-Commission, the rules of accreditation of the Sub-Commission would surely apply; this would mean that only NGOs with ECOSOC status would be allowed to participate. Previous experience has shown that meetings requiring ECOSOC status are poorly attended by members of civil society, particularly in comparison to the average participation of more than 80 NGOs and academics at the meetings of the Working Group on Minorities. 

Governments as well as the High Commissioner and several treaty bodies repeatedly refer to the importance and great value of including civil society within the working methods of the UN and always call for more participation. The Dutch delegate, Mr. Van den Berg, stated, for example, at the 59th session of the General Assembly (GA) on behalf of the European Union (EU), that "[i]n order to meet the challenges of the twenty-first century, the United Nations must become (…) more grounded in reality" and that "[n]othing can serve this purpose better than closer interaction with civil society". 

Unfortunately, this is contrasted by the meagre participation and attention of the governments given to the Working Group on Minorities, which could serve as a role model for the cooperation of the UN with civil society. This is one of the underlying reasons why the Working Group is perceived as being ineffective. 

While taking into account that the Working Group is in its very nature unable to initiate preventive measures in response to communications from individuals, groups and monitoring mechanisms, it is because of its constitution as a unique forum for dialogue and conceptual work that it should be preserved. 

Instead of cutting out this important opportunity to be in direct contact with civil society, it is the responsibility of governments to finally realize the great value of the UN Working Group on Minorities and take advantage of it in order to improve the treatment of minorities. 

Against the established background that all the UN human rights mechanisms need to be funded by the limited resources of the UN, one has to acknowledge the diverse functions of the Working Group. 

A potential Special Representative on Minorities should therefore be e

stablished complementarily, rather than in place of the existing procedures.

Coming soon?  At its 57th session, in 2001, the Commission on Human Rights decided to create an "intersessional open-ended working group charged with elaborating a draft legally binding normative instrument for the protection of all persons from enforced disappearance."   Since early 2003 this working group has been preparing a draft document and this year, the resolution on Enforced or Involuntary Disappearances, drafted by the French delegation asks the working group to complete its work by the end of 2005. One final 10-day meeting should suffice to complete the drafting of a text which will be presented to the 62nd session of the Commission on Human Rights.   An important document is finally making a crucial step forward towards becoming part of international law, much of its success, however, depends on its passing through the Commission next year.   Also, the French delegation deserves credit for making use of the Extranet portal of the OHCHR by making draft resolutions publicly available under "Texts from Delegations". The Hungarians have followed the French example, and others should too.

 

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Defenders need more than a Declaration

State paranoia must give way to a healthy respect for the work and rights of human rights defenders; access to funding is one such right

DANIELA KAESTNER

 

The UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (Declaration) is one of the key international instruments focusing on the rights of human rights defenders. This is complemented by the mandate of the UN Special Representative on human rights defenders Hina Jilani, who submitted her fifth report (E/CN.4/2005/101) to the Commission on Human Rights (CHR) this year. 

The delegation of Norway, which has sponsored the resolution on human rights defenders at the Commission for several years, has made honest efforts to promote and respect the work of human rights defenders, and to prevent actions undermining their work. The European Union (EU) has also demonstrated commitment to strengthening the vulnerable position of human rights defenders by adopting the Guidelines on Human Rights Defenders in June 2004 through its General Affairs and External Relations Council, even though the Guidelines are not legally binding.  

In short, human rights defenders do have instruments with which to fight persecution and other human rights violations. Unfortunately, all of these legal measures prove to be rather weak tools as they favour the exclusive application of domestic legislation, leaving NGOs and human rights defenders vulnerable to the whims of State interests. Most importantly, this phenomenon problematizes one crucial aspect of the functioning of NGOs and other human rights activists: their right to receive and utilise financial resources. 

Deficiency of the Declaration 

Prior to adoption, a draft of the Declaration had specified that it promoted "a clear commitment on the part of all UN member states to respect the rights of human rights defenders at the national and international levels". This was later excised from the final draft, compromised in the interests of adoption of the Declaration. 

The language eventually used in the adopted Declaration offers little by way of real protection to human rights defenders. The reference to the role of national law in Article 3 of the Declaration results in the subordination of international law to domestic law, which restricts the rights of human rights defenders through the applicability of more stringent national legislation. 

Although Article 3 of the Declaration stipulates that domestic laws must be "consistent with the Charter of the United Nations and other international obligations of the State in the field of human rights and fundamental freedoms…", this, at a closer look, proves to be counterproductive. Due to the fact that the international obligations are not expressively cited in the Article, it aligns domestic laws only with those international treaty obligations already ratified by the state and not with other international standards or customary law. Thus, the Declaration's possibility to provide for any protections other than those already implied in existent human rights law instruments, to which the state is a member, is exhausted. 

Moreover, as indicated by Article 21 and 22 of the International Covenant on Civil and Political Rights, Article 5 (d) (ix) of the International Convention on the Elimination of All Forms of Discrimination and Articles 2, 3, 5 and 11 of the International Labour Organisation Convention No. 87, the right to association and assembly has already been guaranteed and is nothing exceptional to the Declaration. 

As another example, Articles 2 and 4 of the Declaration simply reiterate the duty of States to promote and protect human rights, which is already proclaimed by the Universal Declaration of Human Rights. The result is that the majority of the provisions of the Declaration are simply modelled on other international human rights conventions, which apply equally to human rights defenders as to all other individuals. 

With respect to financial resources, the Declaration does incorporate the right to receive and obtain funding for human rights activities in Article 13, a right not articulated as such in any existing human rights standard. Yet, according to Article 17 of the Declaration, Article 13 is subject to the limitations "determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of the meeting of the just requirements of morality, public order and the general welfare in democratic society." Hence, all that is required to prevent human rights defenders from doing their work by cutting off their source of capital is to label them as "politically motivated" or as a threat to "national security", "public order" or even the "general welfare of society". 

Resolution on Human Rights Defenders 

Particularly because the Declaration does not contribute to any additional rights that may strengthen the position of human rights defenders, a strong resolution at the CHR is indispensable. Unfortunately, the draft resolution on human rights defenders, to be tabled during the ongoing 61st session of the CHR, again fails to address the legitimate aspiration of human rights defenders to freely access funding. 

The draft resolution does reflect other key elements of the report of the Special Representative on human rights defenders. Firstly, the special emphasis Ms. Jilani has put on the increasing number of cases of serious violations is reflected in the draft resolution.

Secondly, the draft refers to the focus of the report on "the concern at the increasing restrictions imposed by States on the freedom of association, through the passing of extremely restrictive and cumbersome legislation regulating freedom of association." 

Thirdly, it seeks to broaden the idea of protection by extending it to relatives of human rights defenders, since Jilani's report documents how relatives of human rights defenders have repeatedly been targeted in order to pressure the defender. Last but not least, the draft text recognizes the important role defenders play in upholding human rights during times of armed conflict, with special regard to their vulnerable position during war. Several aspects of the General Assembly's (GA) resolution of the 59th session in October 2004 have also been incorporated into the CHR resolution, such as the request for States to "…ensure that complaints from human rights defenders about threats or violations against them or their relatives are investigated promptly". 

One hotly debated paragraph of the draft consists of the call upon States to "…ensure, protect and respect the freedom of expression and association (…), in particular with regard to facilitating the acquisition of legal status…". This issue has also been inserted with regard to the GA's Resolution, but slightly amended from 'registration' to 'acquisition', which can be seen as some progress since acquisition also refers to the process prior to registration. However, despite the word "inexpensive" concerning acquisition, financial means are not mentioned once throughout the resolution. 

In short, the resolution copies the language of the Declaration, rather than taking it forward. 

Obstacles Posed by Domestic Legislation 

The use of policies, legislation and procedures - often justified as "security" or "counter-terrorism" measures - to restrict the work of human rights defenders has been increasing and may even target the defenders themselves. India provides a good example: the Foreign Contributions Regulation Act (FCRA) requires all Indian organisations and individuals that seek to receive foreign contributions to receive clearance first from the Ministry of Home Affairs, in the form of either registration or prior permission. An anachronistic, Emergency-era statute, the FCRA is a potent tool used by the government to restrict the work of human rights defenders. 

Governments have a legitimate interest in holding NGOs accountable for financial or other wrongdoing. However, normal regulatory and criminal justice procedures provide sufficient institutional resources to accomplish this task. Similarly, narrowly tailored financial reporting requirements for NGOs serve legitimate governmental interests and should remain in place. In India, however, it is the highly politicised Ministry of Home Affairs that administers the FCRA rather than the Ministry of Finance. This leaves the application of the law open to manipulation and selectivity. 

The Government of India also attempts to curtail the freedom of assembly and association. From mid-1999, NGOs organising international conferences in India have required prior permission from the Ministry of Home Affairs and other relevant ministries. The clearance requirement is not pursuant to any law, rule or guidelines, it is simply the new practice of the Government of India. The clearance requirement is not manifest as a written policy with established procedures. It functions at the whim and fancy of the Government of India.

This ad hoc operation places NGOs at a distinct disadvantage in its dealing with the Government of India as the procedure lacks transparency. The clearance requirement procedures are clearly prone to arbitrary use and abuse in the absence of established policies and procedures. 

The problem of legislation aimed at hindering human rights defenders in their work is not restricted to India, although it is particularly reprehensible that such legislation would find a place in the statute book of a democratic country. (see box) 

Hopes for the Future 

The Declaration and the draft resolution simply re-affirm human rights standards without offering any added protection to human rights defenders. 

The one unique provision on the right of NGOs to receive funding is subordinated to national legislation, although the very States where funding is most urgently required are those which do not respect international standards of basic human rights, and especially the concerns of human rights defenders. 

Therefore, it is even more desirable that the international community, and especially the sponsors and co-sponsors of the annual resolution do not capitulate to the strong opposition of countries commonly viewed as being unconcerned about human rights. 

States truly dedicated to human rights issues, must recognize the valuable contribution of civil society and NGOs. 

They must keep the issue of their access to funding on their agenda.

Defence mechanism?  In December 2004, a new NGO Bill was introduced in the Parliament of Zimbabwe. The Bill does not only require NGOs to register with a government-appointed regulatory council but also prevents international organisations from receiving foreign funding. Moreover, through the new law, the Government has increased its excessive control of the NGO Council and obliges all NGOs to present a three-year plan of action when applying for their annual registration.   Yet another piece of repressive legislation emerges from Egypt. Article of 11 of 'Law 84' (2002), which took effect in June 2003, levies criminal penalties for "unauthorized" activities, including "engaging in political or union activities, reserved for political parties and syndicates". As pointed out by Human Rights Watch, this results in the liability of a person to a three-month term of imprisonment when engaging in NGO activities prior to the organisation’s formal registration. Article 17 of the Bill bans NGOs without justifiable reason from receiving foreign funding and Article 42 even empowers the Ministry of Social Affairs to liquidate an NGO and to thereby seize its property without the authority of a court ruling.  The root cause of this problem of suppressive legislation is perhaps that most State leaders refuse to acknowledge human rights defenders as partners in the democratic process. For example, last year, Russia's President Vladimir Putin claimed that NGOs serve the interests of "dubious groups and commercial interests", rather than the welfare of the public at large.

 

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NHRC-INDIA