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Excitement and relief accompanied the General Assembly’s passage of its President’s draft resolution to replace the Commission on Human Rights with a new Human Rights Council. On 15 March 2006, almost a year exactly after the Secretary General had come to Geneva to condemn the Commission, the deed was finally done. Many times during that year the task seemed doomed. It was poised on a knife edge to the very end, with few people knowing what would happen even as the General Assembly convened last Wednesday. The process had been exhausting. So exhausting that, when success finally was won, it had an air of unreality. In the cold light of dawn the next morning, the enormity of the task ahead started to sink in. The effort to secure the passage of the resolution had left little, if any, time to think much about what would happen after that. The fact is that the real work is just about to begin, especially for us in Geneva. But first comes the election of members of the new Council in New York Election of members The resolution provides that the first election will be held on 9 May. That will be the first test of the commitment of UN member States to make the new system work, to ensure that it is better than the old. Two objectives are required: that the first members of the Council be fully and strongly committed to the Council and that that the membership as a whole be renewed and refreshed and not be the same as the old Commission. To achieve the first objective, regional groups should not nominate, or support the nomination of, States that did not vote in the General Assembly in favour of the Council. That is not to be excluding but simply to say that the first members must be fully committed, not hostile or lukewarm. To achieve the second objective, regional groups should not nominate, or support the nomination of, States that are now in their third consecutive term on the Commission. The resolution provides for a two consecutive term limit for members of the Council. In the spirit of the resolution, new blood and new ideas should be introduced right from the start. Special Procedures The resolution sets out the ambitious agenda for the Council’s first year. During that time the new Council must The Special Procedures of the Commission enter the transition phase with their role and function strongly affirmed. At the 2005 session of the Commission, the Asian Group introduced an initiative to strengthen the effectiveness of the Special Procedures. As a result a seminar was held in October at which there was strong consensus that the Special Procedures were among the most effective achievements of the Commission. The General Assembly resolution itself affirms their continuation. So their future as an essential mechanism for the Council should not be in doubt even if individual mandates are to be reviewed. How will the mandates be reviewed? The process must be transparent and open to NGO participation. It should draw from the experience of people on the ground – victims of human rights violations and human rights defenders – and be built on their views of whether the mandate assisted their struggle for human rights. The review must be based on objective and reliable information, not political considerations. In particular, it should consider whether the mandate covers an area where there is a pattern of acute or chronic human rights violations or an area of human rights promotion that can be addressed appropriately through a specific mandate. The current Special Procedures have undertaken a year of valuable activity, including country missions and general human rights study and reflection. But they may not be invited to present their reports to the final session of the Commission. They must be guaranteed space at the first session of the Council to present the reports and engage in an adequate and substantive interactive dialogue. The Commission and its Bureau have no authority to bind the Council and so the regional groups must make explicit commitments now to support the timely consideration of these reports in June. If those commitments are not forthcoming, then the Special Procedures must be permitted to report to this last session of the Commission. Universal periodic review The General Assembly resolution also provides that the Council in its first year should develop the modalities and time commitments for the universal periodic review. This review is one of the most significant developments in decades in building the international accountability of States for their human rights performance. The statement of the mechanism in the resolution is short and simple but its development will be extremely complex and challenging. Universal period review could be an excellent means to ensure the equality of States in international accountability. It could also be a way to waste time and resources on essentially fruitless discussions. The objective should be to ensure the former and avoid the latter. The review system should not eat into the Council’s ten weeks of formal sessions a year. The review is a mechanism of the Council; it is not the Council and it cannot be so constructed that all the Council’s energies are directed towards it. It should proceed on the basis that, although all States are equal, their human rights performances are not. There should be means by which more severe human rights situations can receive higher priority and closer attention. Again, to be useful, the review should be based on objective and reliable information, as the resolution requires, and that means it must include information from NGOs and other experts with knowledge and experience of the situation on the ground. The process must be open to the experiences of the victims of human rights violations. Substance and process The Council will need to allocate priority to developing its own rules of procedure, agenda and operating modalities, including for NGO participation. This is important and necessary work but it must not become an excuse for postponing substantive work on human rights issues. There must be no protection gap. The urgent human rights issues confronting the Council need to be addressed by the Council itself speedily and thoroughly. The Council has to find a way by which it can pursue substance while developing process. Perhaps the process side could be delegated to a working group for the negotiation of a proposal that can then be considered by the Council in plenary. Meanwhile the Council itself should proceed under interim arrangements to hear the Special Procedures, respond to their reports and consider other human rights matters of importance. The Council should also address itself urgently to unfinished and untouched areas of human rights. If, unfortunately, the last session of the Commission leaves the Disappearances Convention and the Indigenous Rights Declaration to the Council, then these two important new instruments should be adopted and transmitted to the General Assembly at the Council’s first session in June. The Council should also take up issues that the Commission has proved ineffective in addressing, including the persistent violations of human rights based on sexual orientation and gender identity. The procedural side is important, however, and again there needs to be full NGO participation in the discussions. How the agenda, the timetable, the work program and the methodologies of the Council are arranged will have a great effect on what the Council does. These issues should not be addressed in a hurried or secretive fashion. If they are, mistakes are inevitable and, once made, bad decisions are hard to reverse. It is far better to get it right in the first place. The first year Was it a good idea to replace the Commission on Human Rights with the Human Rights Council? We don’t yet know. The answer will come as the Council begins its work. The test will be whether it is willing not only to continue but to strengthen the Special Procedures, to introduce an effective system of universal periodic review, to deal seriously and impartially with acute and chronic human rights situations and to address serious areas of human rights violation that the Commission considered untouchable. The old Commission may have been discredited and delegitimised but now the whole UN system is on trial. Here, victims will be the judges and the jury. What will they say? The Council’s first year is going to be frenetic but it will be this first year that makes or breaks it. Fortunately the budget approved by the General Assembly’s Fifth Committee allows time for this enormous volume of work to undertaken: it provides for the Council to sit ten of the 28 weeks between its establishment on 19 June and the end of the year! Of course this means an enormous load on state delegations and NGOs alike. But it is work that is essential to get the Council off to a sure and positive start with the least possible disruption and delay. The opportunity for such a concentrated effort rarely arises and so it should be seized in spite of the burden it will impose on us all. As I said, now the real work begins. Chris Sidoti
Director
International Service for Human Rights