The UN Human Rights Council compares well to its predecessor the Commission, say Geneva academic

March 14, 2013

In a lengthy interview with ‘Geneva International Cooperation’ published on 13 March 2013, Andrew Clapham, the widely respected Director of the Geneva Academy of International Law and Human Rights, argues that the Human Rights Council of the UN, which replaced the Commission on Human Rights (of which, in 2005, Kofi Annan said that its “declining credibility has cast a shadow on the reputation of the United Nations system as a whole”) has in the end made important improvements. The interview is certainly worth reading in its totality but for the hard-pressed here are some quotes:

Q: Do you think the Human Rights Council has been effective in restoring the damage caused by its predecessor to the reputation of the UN?  Yes. The credibility of the Human Rights Council is now much higher than that of the Commission on Human Rights in 2005. One of the major criticisms of the former Commission was the ability for states to use political pressure to focus attention on individual states. Under the four year Universal Periodic Review (UPR) cycle, it is possible to read reports about the United States, China, Russia, Haiti, Iraq and Libya, and not just the states that are out of favour at any given time. One of the crucial differences is the fact that the Human Rights Council now considers the situations in powerful states. The ability of the Human Rights Council to establish Commissions of Inquiry is another important and unexpected development. These Commissions are now highly regarded references and sources of information.

Q: Can you give some examples of concrete achievements that have resulted from the creation of the Human Rights Council?  The fact that every single country in the world has now been reviewed once is a monumental achievement. Under the UPR, the Council must consider for each state: a United Nations report,a consolidated NGO report and the country report prepared by the state itself. With just under 200 states, the Council reviewed close to 600 reports. At the end of the process between 20 to 40 recommendations are made to each state. In total there are thousands of recommendations, which means there is now a lot of information for the United Nations, NGOs and governments to work with if they want to. That is a huge step forward.

Secondly, the effect of the reports of the Commissions of Inquiry is significant because they eventually will lead to some sort of accountability for the perpetrators of human rights violations. These are professional records which put people on notice that committing human rights violations means there is a risk you will be prosecuted and put in prison.

Q: The Human Rights Council is not the only multilateral body that deals with human rights issues (General Assembly, Security Council, regional bodies, etc.). What is the specificity of the Human Rights Council and what are the links with the other entities? States are very cautious not to allow the Human Rights Council to generate binding sanctions or authorize for the use of force (as the Security Council may do). So the links between the organs are always going to be unclear because the States do not want to have a clear division of labor there. They want the final power to do those things to remain with the Security Council. The powerful states in the Security Council want to control that and states that fear they will be subject to sanctions will prefer that it gets blocked in the Security Council whether there is a veto or a power game, as opposed to putting matters to a majority vote in the Human Rights Council. However, having said that, if you take the Libyan example, the Human Rights Council dealt with it first, and within hours, the Security Council was saying the same thing. This was not a coincidence. In a way, the Human Rights Council generates the activity within the Security Council, and similarly, if the Security Council now acts on Mali, it acts on the basis of the information coming from the Office of the High Commissioner for Human Rights and from the Human Rights Council.

Regional bodies are much more specialized in the sense that their work is much more legalistic. .. The Human Rights Council is a more of a political body, with the Council using the language of ‘recommendations’. The state under review will take a recommendation of the Human Rights Council into account as political request, whilst in the European Court of Human Rights the states will not do anything if they are not legally bound to do so. You can not win a case if you do not prove that the state was legally bound to do something it did not do. As you can see, the discourse in the Human Rights Council is completely different from that of the regional bodies….

Q: Are there topics that the Council did not address 6 years ago and that are now on the agenda?  There is much more focus now on violence against women than there was. There is also more focus on freedom of association and assembly. There are some new mandates such as on extreme poverty and new countries that are under scrutiny such as Eritrea. Things are not stagnating. I could also mention the Commissions of Inquiry such as those for Libya, Syria or Mali. These are good developments, as they increase scrutiny.

Q: Is the multiplication of Special Rapporteurs a good thing in your opinion?  The appetite for Special Rapporteurs is waning now, as states are not really ready to introduce new mandates. Whilst most human rights topics are now covered by one or more of the thematic Special Rapporteurs, I would highlight that the plight of ordinary prisoners in detention is one gap I believe could be covered. There is no Special Rapporteur that deals with the regular conditions of the ten million regular prisoners in the world…..

Q: The Council is sometimes criticized for being powerless and for not making any difference on the ground? Are these criticisms justified?  I think it is a bit unfair to say that the Council is not powerful, because states are not prepared to give it that power. They gave that power to the Security Council and they are not going to give this intrusive power to two bodies. To say that it makes no difference on the ground is too quick, because one has to see whether after the UPR, NGOS are better able to do their work, and how some governments report on the implementation of the recommendations. There is an ongoing process, and if you talk to the experts, you will be able to find examples of laws that have been adjusted or practices that have been changed as a result of the UPR. Of course, some of the recommendations are unacceptable to governments and will never be taken on board, and others are complicated. In conclusion, the idea that everything is going to be fixed is too optimistic, but the idea that nothing changed is also too pessimistic.

Q: What would you change or improve about the Human Rights Council?  I think that the Achilles’ heel of the Council is the complaint procedure, which has never been properly reformed. The mechanism is not really transparent and it is not clear how it works. It is extremely politicized, in that the decisions are mostly taken by diplomats acting in their national interests. I don’t think it’s speculative to say that most of the complaints have not made [it] through the system because of the politics rather than the quality of the complaints; …. Another thing that could be fixed within the UPR is the minor role played by experts. It tends to be diplomats talking to diplomats as opposed as to states asking the questions by bringing their experts that not only ask the questions, but then get engaged in the follow-up as to how the recommendation is pursued and then revising the recommendation when the review happens. There is not enough expert input into how the questions are framed and articulated. The fact that the same diplomats have to work with the same countries the next week in a different forum imply that they can not be really critical and clear because they need to keep open a sort of dialogue. The first years, people were a bit nervous about it but now that we are in the second round of the UPR, we can afford to be more scientific about it……

Q: What are today the biggest challenges in human rights?

To get governments to care about human rights in other countries is quite a big challenge when a lot of them are thinking about domestic financial issues. They are not thinking about the plight of people in northern Mali or in North Korea as something that is of concern to them, and on which they could spend diplomatic time and capital. Much of this costs money, for example the Commissions of Inquiry, and countries will claim that they need money for other things. It is a challenge to get people to think that how other people are treated is important to them. This requires a change in attitude, which is different to getting states involved in the architecture of a new entity, or the change in this or that charter. This is the biggest challenge. Other challenges I would mention are the lack of concern by human rights lawyers and organizations about prisoners; the use of drones; and the issues of cyber warfare and the rules that might applied for cyber attacks and cyber self-defense. These are not subjects that are of concern for everybody in their day-to-day life but the consequences of cyber attacks could be huge and it is important to make rules known and understood. Counter piracy and the impact of the arms trade on human rights are also big topics at the moment.

Q: What is the position of Geneva in relation to human rights governance today?  Geneva is reinforcing its position as the capital of human rights. This is thanks to the Human Rights Council but also because human rights treaty bodies are meeting here ….There are also new relevant organizations that have been set up in Geneva …. Finally, with the fact that there are more and more Masters degrees, trainings and academic work on human rights in Geneva, it is becoming clearer that it is the place to be for human rights.

full interview at: http://www.cooperationinternationalegeneve.ch/human-rights-council-according-andrew-clapham-director-geneva-academy-international-humanitarian-law

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