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Daniel Bogner {*}

A Clear Improvement

On the Establishment of the Human Rights Council
of the United Nations

 

From: Herder Korrespondenz, 2006/9, P. 481-485
webmaster's own, not authorized translation

 

    The newly created Human Rights Council of the United Nations exists for a short time. The till then existing UN-Commission for Human Rights has been dissolved. The question is whether only a new form of working has been found in which the well-known problems continue or is a real reform of the international human right protection under way?

 

The Lebanon War showed it again: There are quite different viewpoints on the question whether and how the human rights can be consulted for the evaluation of political action. While some people grant that the international law and the human rights play also a role in the actions of the Israeli army but must be seen as part of a broader political total evaluation, others insist on the unrestricted primacy of those rights. In this view the human rights pre-determine the framework in which the political and military action of a state, as for instance Israel, is allowed to take place at all. You can recognize by this the special character of the human rights: As rights they are already rules with the title to absolute validity, but at the same time they are still developing; and just the political reality with wars, disasters and emergency situations usually leads then to an obligatory formation of these rights.

The United Nations had since its foundation always been entitled to be the central world-political platform for human rights. It was and is its aim to make actual law out of many noble words and to convert it also into politics. The in 1948 adopted "General Declaration of the Human Rights" and later numerous human right pacts display it.

Unfortunately this high objective for the work of the United Nations was institutionally not kept. Only a special commission within the so-called "Economical and Social Council" (ECOSOC) was to take care for the human rights - the since the year 1946 active Human Right Commission to which 53 members belong. Already the Economical and Social Council and in the consequence also the Human Right Commission did not fulfil the expectations set into these structures. That's why one increasingly called for a fundamental reform of the United Nations. Secretary-General Kofi Annan made this one of his focal points of work in the past years. Core of his suggestions and drafts was the demand for making the human right policy of the community of states more effective, because in the long run the reliability of the UN as a whole will depend on it.

 


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After a phase of discussion and decision of approximately two years on 15 March of this year the newly created "Human Rights Council" was established by the UN plenary assembly; and at the same time the hitherto existing UN Human Right Commission was dissolved. The crucial question reads: Is with it only a new form of working found in which the well-known problems and blockades continue - or is the way paved for a real reform of the international protection of human rights?

 

One Reason for the Failure of the Human Right Commission was the Cold War

First one should bear in mind the ways for the protection of the human rights, which are actually available to such an institution as the UN: States join forces in it but give then not simply up their sovereignty. It is true though that they enter into a newly established sphere of publicity. Others have suddenly the right to watch the things which happen in your country and to inquire whether you offend against the common foundations. Such a form of publicity does not directly discipline, but indirectly it will nevertheless do it. Even independently of the last instance of economical and even military sanctions any reduction of your reputation means - in the context of an international constitutional community - a loss for your country. Where the international reputation sinks and you are even publicly exposed, the possibilities for flourishing external relations in trade, culture and science will also gradually decrease.

The UN with its committee system creates an international cross-linking in which states are obligated to give information and a regular account. That the Human Rights Commission could not play this role with regard to the observance of the human rights had different reasons: The Cold War struck down with full force on the work of the United Nations as a whole but particularly on their human right commitment.

The hostile blocks mutually accused each other of violations of human rights, so the East the West of its allegedly missing sensitivity for the economic and social human rights, and the states of the West called the regimes of the Eastern Bloc to account for their violation of the citizen rights and for the restriction of individual freedoms. The result was that the human rights became the object of mutual reproaches and that the efforts for a policy of small steps in the name of human rights came regularly to nothing. The Human Rights Commission became the Forum of Bloc Confrontation.

Also the working methods of the committee contributed to its increasing insignificance: As special commission it was not a central body of the UN and met therefore not permanently but only six weeks in the year. By this a continuous monitoring of the human right situation was impossible, and every direct reaction to acute emergencies was difficult. In the comments and analyses leading to the current reform also the moment of the so-called "politicization" of the Human Rights Commission finally played a role. Yet, it is just the aim of the United Nations to make the human rights the standard for political action.

With this wording one rather meant that the committee was used as means for one's own national advantage or that the matter was marginalized for reasons of a proportional representation, e.g. when Libya was elected in the year 2003 into the commission presidency, or at the spring meeting in 2004 Sudan was, despite substantial violations of human rights, destined to become a member of the commission. How could, so the tenor of criticism, a committee speak up for human rights in the name of the community of nations in which even states sit which belong to the fiercest violators of human rights?

In the past years the discontent was more and more clearly expressed, and the USA played here a crucial role. But requests came also from Germany, so from the Human Rights Forum, a union of about fifty human right organizations. Central criteria for the reform were defined in a Ten-Items-Program of June 2005. One insisted especially on getting also in the new Council the right to speech for organizations with consultative status at the United Nations. Often non-governmental organisations (NGO) invited on that ticket particularly impressive human rights defenders to Geneva and made it so possible that state representatives had at first hand to listen also to the perspective of the people concerned or of their advocates.

 

No Constant Committee

Initiated by the report of a team of experts, but above all by Kofi Annan's suggestions the plenary assembly then decided to establish the Human Rights Council. Already the name, which was chosen in deliberate parallel to the Security Council, indicates that one strives for a revaluation of the human rights politics. What are the differences to the former human right commission? The Council gets its authorization now by the plenary assembly; in it the 47 (so far 53) member states are elected - with absolute majority as well as after a geographical key. Africa has 13 members (- 2), Asia 13 (+1), Eastern Europe 6, Latin America/Caribees 8 (- 3), Western Europe/western countries 7 (- 3). As a rule the term of office amounts to three years; a re-election is possible only one time, then a state is to make a pause at least. The NGOs' participation is guaranteed for the future.

 


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The Human Rights Council has its seat in Geneva. But against the original planning it was impossible to succeed with establishing a constant committee. Its meeting times have been extended: Compared with the six weeks of the old commission there are now ten weeks for the Council allotted to the three parliamentary sessions during the year. The possibility of special meetings is new: With the vote of a third of the members the meeting is to convene. A crucial innovation in relation to the former commission is the "peer review function". By it you are to imagine a mutual control mechanism by which the member states of the Council undergo the regular control of their own human rights balance sheet. With it the own reliability is to be increased and also made possible to exclude - with good reasons - members from the Council if and when the need arises.

 

It is true though that after the formal establishment of the Council it was clear, the far-reaching reform suggestions supported also by the policy of the German Federal Government could not be completely realized. But the result has nevertheless substantially better chances of success than it was the case with the former Human Rights Commission. Federal Minister of Foreign Affairs Frank-Walter Steinmeier welcomed in a press statement from 16 March 2006 the establishment of the Council, and pleaded to acknowledge the achievement - although further progresses had been desirable.

It is to be emphasized that in this statement of a member of the Federal Government the successful further integration of the non-governmental organisations is particularly stressed - also as negotiation success. That indicates a change in the understanding of state policy, which still fifteen years ago had not been imaginable in this way. Meanwhile the Federal Government appreciates the cooperation of state and society within many fields, instead of regarding the work of the NGOs as complicating its work.

But for a fundamental evaluation one has to wait and see how the new institution is filled with life. A first step was the election of the member states by the UN-Plenary Assembly on 9 May 2006. Germany was elected with 154 votes into the Council even before countries such as France, Great Britain and Switzerland. The joy of the German diplomats about that event was great, and the result was seen as acknowledgment of the steady support of the UN-system by Germany, but also of its commitment to the topic Human Rights.

A first damper was put on the matter of human rights when the Asian group elected with China, Saudi Arabia and Pakistan states with a very doubtful human right outcome. But Russia and Cuba too became members of the Council. The criticism of non-governmental organisations aims just at that point: the election by lists of continents and without large majorities almost inevitably guarantees a place to states the policy of which is under strong international critique.

Anyhow, the fact that the election of the members takes now place not in one of the UN-subcommittees but in the plenary assembly may be seen as progress. It became already apparent that as a result the public attention for the Human Rights Council increased and that by the election exists a public criterion for assessing which country within the groups of continents is entitled to join in the discussion about the human right policy. It is to be seen critically that the members need only the absolute majority in the plenary assembly in order to get into the Council. The USA had demanded a two-thirds majority, in order thus to set up a higher hurdle against human right violators. In order to achieve an innovation at all, that hurdle finally fell in the struggle with those who criticized the project of the Human Right Council and of the reform in general.

 

The Role of the Special Correspondents

The topics with which the first parliamentary session of the Council was busy were the situation of the human rights in Palestine, the situation in Darfur/Sudan, questions about a sufficient appreciation of religion in public, discrimination and xenophobia, the situation of emigrants as well as the protection of those who defend the human rights. In particular the Latin American states brought in the topic of the economical-social human rights, likewise the demand for an obligatory right to development, which keeps the human right debate already busy for some time. One struggles still for other topics for the further consultations - as for example the human rights of women and children and the protection of indigenous peoples.

A sensitive subject is the further handling of the evaluation of countries, practised by the former human right commission: Individual countries were here taken under the magnifying glass, and if necessary, a resolution or declaration could be passed - with clear demands for the respective government. At the same time the highest alert phase was rung in by this, and the headlights of the world community were directed at the respective country.

 


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With exception of the Western group of states large majorities from the other regional groups declared themselves against such an institutionalized, emphasized estimate of the situation of a country and of its government. In the future there will be in the foreground alternatively the topical handling of a current human right problem, which can then be attached to the special context of that country. By this one will concentrate upon the question how the respective government should be supported in overcoming this problem.

 

Non-governmental Organisations too are Needed

In the future it will also be important how one proceeds with the so-called "Special Mechanisms", established by the former Human Rights Commission, to which all the independent experts, special correspondents and working groups belong. They have got a mandate for special countries or topics, and contributed in their fields of work partially outstanding statements that were indispensable for the international argument.

There are to mention for example Hina Jilani who is active as representative of the Secretary-General for the situation of human right defenders, the special correspondent for the right to food, Jean Ziegler, or Wolfgang Nowak, the special correspondent on torture. The commissioners have - according to UN-agreement - the right to travel at any time to the country which they want to examine, and must be supported in their investigations by the government there.

With numerous states such mandates do therefore not enjoy large popularity. The Human Rights Council extended all mandates now first for one year, but it established also a working group, in order to discuss their future in principle. Some nations, as e.g. China and Cuba, which have their fundamental problems not only with the further integration of NGOs into the work of the Council but also with the special mechanisms could not prevent the extension for the time being. Just also against the institution of the UN-High Commissariat for Human Rights numerous states show at present an increasingly open attitude of protest and accuse this authority of "being biased" or of "politicizing", so for example Myanmar, Uzbekistan or also Russia. Unfortunately the reason for such reproaches is often the annoyance with all too uncomfortable expert opinions of the High Commissariat on the human rights situation in the respective country.

An actual touchstone for the efficiency of the new Council will be the internal control mechanism (Universal Periodic Review), with which the member states are to be submitted mutually to a monitoring of their own human right outcome. So far it is above all sure that such a mechanism is to come into being, but it is still to a large extent open how it will be organized in detail. In July and August one began already with informal soundings. Until the end of the year a suggestion shall be ready for a decision, so that the examination of the first states can immediately begin.

It is not a secret that there is partly a clear protest against this mechanism, for instance from countries such as China, Pakistan or Cuba. Usually it is the aim of such states to restrict procedures and sources of information which are regarded as too independent and to replace them by state near sources specifically for this purpose defined criteria for the evaluation of the human right situation. The reliability of the new Council will much depend on the fact whether it will succeed in introducing an meaningful account system. But it is still quite open what will happen when some states are criticized for their policy and either change it or had to leave the Council.

The changes effected with the creation of the Human Rights Council can - even if one had wished for further-reaching reforms - be seen as a clear improvement compared to the former Human Rights Commission. They cannot guarantee a better functioning but they offer chances and support a more conclusive human rights policy of the United Nations, where and as soon as member states strive for it. Such a policy is never the god of the machine - also under the changed conditions it will considerably depend on the insight and the political will to make the human rights the standard of action.

The human right debate of the past years was moulded by very different topics: In particular the NGOs of Western industrial nations asked for mechanisms by which enterprises of the free economy can be more strongly obliged effectively to protect the human rights in the scope of their activities. The question how people can also individually sue for their economic and social human rights was under discussion as well as the furtively decreasing readiness to adhere to the absolute prohibition of torture. As usual, some non-European states present the question whether the national and cultural backgrounds are not to be taken more strongly into consideration for the evaluation of the human right situation. With it the statements of the Viennese UN-Human Rights Conference from 1993 on the universal validity of the human rights are openly questioned again.

Finally, since the attempts of 11 September 2001 it can generally be observed that in many states the intensified efforts for security are realized at the expense of actual human rights standards. Before this background the establishment of the Human Right Council shows that there is - in spite of many pessimistic signs - a world-wide increasing sensitivity for the relevance of an effective human rights policy. One may admittedly regret that for the time being only a structural step has been taken. But in course of time the new structure can prove to be the precondition for a better policy.

 


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An appeal to fill the new structure with life has not only to be directed at governments but also at some NGOs: Just in Geneva such a lot of institutions and organizations are bustling about that competition and rivalry are unavoidable - about the own profile and about appropriate promotion possibilities. But for the sake of the cause only a concerted action will be promising. The German human right organizations practice this already for several years with success and send a common observer to Geneva. His reports and estimates serve not only the better evaluation of the UN work but are also helpful for the following lobbying within the different departments of the Federal Government and for its participation in the international system..

An insight may stand at the end of the debates and analyses about the claims and aims of the UN's human right politics: There is no alternative to it! As the only world-wide framework within which the states agreed upon an obligatory form of co-operation, a co-operation which goes far beyond trade or military security, the United Nations is more than one union among others. Hence one has - not resignedly but realistically - to state: Even an after a fashion working UN Human Rights Commission is better than no one. Without prejudice to legitimate critique in detail, just church actors like the German commission Justitia et Pax always contributed this position to the discussion. In view of the theological vision of the Mankind Family the church has the obligatory task to support the world-wide co-operation in the context of the United Nations.

In defiance of all augurs and negative comments on the UN human right politics the reform step which has now been undertaken is to be welcomed in principle. Was matters now is that the new committee is taken seriously with its demands, and is supported both, by the states and the citizens. This is the often neglected reverse of a possible political process: It will usually only get going, if there is a relevant public which represents and expresses an expectation. The fact that the Federal Republic is at least for the next three years - with the highest number of votes among the Europeans! - a member of the Council is a chance and an obligation also for the German public.

 

    {*} Daniel Bogner (born in 1972), Doctor of Theology, reports on human right questions to the German commission "Justitia et Pax" in Bonn. He represents the commission in the Human Rights Forum and is trustee of the German Institute for Human Rights (Berlin).

 

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