International Relations Coordinator at Conectas Human Rights and Executive Secretary of the Brazilian Committee of Human Rights and Foreign Policy. She holds a Bachelor’s degree in International Relations from the Catholic University of São Paulo – PUC/SP (Brazil) and a postgraduate degree in Political Science, with a major in International Organizations, from the Paris Institute of Political Studies – Sciences Po/Paris (France).
“No society can develop without peace and security. No State can be secure if its people are condemned to poverty without hope. And no nation can be secure or prosperous for long if the basic rights of its citizens are not protected.”
In April 2006, the UN General Assembly approved the creation of the Human Rights Council (Council or HRC), making this body responsible for promoting universal respect for the protection of human rights and fundamental freedoms. The same document that breathes life into the HRC emphasizes that peace, development and human rights constitute the three pillars of the United Nations system. It also recognizes that the work of the new Human Rights Council should be guided by the principles of universality, impartiality, objectivity and non-selectivity – in a clear reference to the criticisms leveled against the Commission on Human Rights (Commission), the body that preceded it.
In the former Commission, Non-Governmental Organizations (NGOs) played an active and important role. There is no doubt that participation by NGOs in the new Council will continue to be essential, bringing to its attention local situations of human rights violations and monitoring the positions taken by its Member States. Neither is there any doubt that a stronger participation by NGOs from developing nations – the so-called Global South – will grow increasingly more necessary given, among other factors, the geographic composition of the HRC.
I propose, therefore, in this article: (1) to trace a brief history of this first year of the Council’s activities; (2) to put into context the importance NGO participation; and (3) to suggest some forms of action that can be taken by these organizations in the leading international body for the promotion and protection of human rights. In the third part of this article, the information has been compiled into tables, in an attempt to make it easier to read and to demonstrate that participation by NGOs in the Human Rights Council should be ongoing, both at the HRC headquarters in Geneva and with the governments at the capitals of their own countries.
Review of the Human Rights Council’s first year of activities
The UN Human Rights Council completed its first year of activities in June 2007, during its fifth session. Established by UN General Assembly Resolution 60/251,3 the HRC replaced the sexagenarian Commission on Human Rights that was grappling at the time with a serious credibility crisis, accused by Non-Governmental Organizations and States of selectivity and excessive politicization in dealing with human rights violations around the world.
The HRC is today the principal international body for the promotion and protection of human rights; it is responsible for “promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in fair and equal manner”.4
The new body is comprised of 47 Member States elected by the General Assembly for a period of three years, respecting the following geographic distribution: 13 African States, 13 Asian States, 8 Latin American and Caribbean 13 Asian States, 6 Eastern European States and 7 Western European and other States.
Based in Geneva (Switzerland), the HRC must schedule no fewer than three ordinary sessions per year and it is also able to hold special sessions whenever necessary. In its first year, the HRC held five ordinary sessions and four special sessions to address the human rights situations in Palestine, Lebanon and Darfur. In addition, the Council also adopted: the International Convention for the Protection of all Persons from Enforced Disappearance5 and the draft of the Declaration on the Rights of Indigenous Peoples.6 Work also began on a draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.
Nevertheless, the primary focus of the HRC in these first twelve months was its own institution-building. According to Res. 60/251, the Human Rights Council had a year starting from its first session7 to “assume, review and, where necessary, improve and rationalize all mandates, mechanisms, functions and responsibilities of the Commission on Human Rights […]”.8
The HRC approved, in its fifth session, Resolution 5/1,9 the result of intense and tumultuous negotiations. The document sets out the principal characteristics of its agenda and program of work, methods of work and rules of procedure, universal periodic review mechanism,10 special procedures, advisory committee and complaint procedure.
In light of the intense negotiations and the clashes that took place during the institution-building phase, it is clear that the Human Rights Council is not immune to the problems that undermined the credibility of its predecessor. Indeed, there are signs that excessive politicization and the prevalence of interests other than the promotion and protection of human rights in the positions taken by Member States may well have been inherited from the Commission on Human Rights.
Importance of the contribution of NGOs to the success of the new body
It is widely recognized that the active participation of NGOs in the former Commission on Human Rights was instrumental in the creation of international instruments, the approval of resolutions, the realization of studies and the creation of special procedures, among other things.11 Article 71 of the UN Charter authorizes the action of NGOs and makes the Economic and Social Council (ECOSOC) responsible for regulating this participation. In this context, ECOSOC Resolution 1996/3112 defines the principles and rights concerning formal participation by NGOs, its principal regulatory instrument being the concession of consultative status for civil society organizations.13
In the new Human Rights Council, the participation of NGOs is expressly guaranteed in Res. 60/251: “[…] the participation of and consultation with observers, including […] national human rights institutions, as well as non-governmental organizations, shall be based on arrangements, including Economic and Social Council resolution 1996/31 […] and practices observed by the Commission on Human Rights, while ensuring the most effective contribution of these entities”.14
So far, NGOs have played an important role in the institution-building process of the HRC. In its first year, 284 NGOs participated in Council sessions, slightly less than in the former Commission.15
The role of NGOs in the Council is considered important to bring to its attention the reality in places where human rights violations are occurring and to contribute their own particular expertise. Furthermore, it is vitally important for NGOs to keep track on the positions taken by HRC Member States and observers, with a view to influencing them whenever necessary.
More participation by NGOs from the Global South is vital not only because most of the major fundamental rights violations occur in these countries, but also because the geographic composition of the HRC gives them numerical superiority. Together, African and Asian nations hold 26 seats on the Council, that is, more than 55% of the total. Adding the 8 countries from Latin America and the Caribbean, this figure rises to 72%. Many of these countries question the legitimacy of the action and the credibility of the information issued by NGOs that are not from their respective countries or regions.
However, NGOs from the Global South represent today just 33% of the 3050 NGOs that enjoy consultative status with ECOSOC16 and can, therefore, participate fully in the Council sessions.
There are countless challenges facing NGOs´ participation, foremost among them: (1) the difficult process of obtaining consultative status for those that do not already have it; (2) the high financial costs and the unavailability of staff to participate in the sessions in Geneva; (3) the lack of familiarity with the workings and procedure in the HRC; (4) the lack of access to information, including language barriers; and (5) the difficulty deriving any tangible benefits from this participation in the day-to-day work in their countries of origin.
Given these challenges, it is important to develop innovative forms of action. For example, the permanent engagement of NGOs from the Global South with their own governments at home is essential. All major foreign policy issues are decided on a national level, primarily in the Foreign Relations Ministries, including the positions to be taken by each country’s diplomatic missions and delegations in the Human Rights Council. It is imperative, then, for NGOs to call on their respective governments for more transparency and formal mechanisms to participate in the preparation and implementation of the guidelines that will govern their actions in the HRC.
It is also crucial for NGOs to coordinate strategies and develop joint initiatives for combined action within the HRC, both in Geneva and at home, to strengthen individual actions, maximize resources and share experiences.
There is no doubt that responsibility for the success of the HRC lies squarely with the countries that comprise the new body. Resolution 60/251 determines that the status of the Council within the hierarchy of the UN will be reviewed in 2011 and that it may become one of its principal bodies, on a par with the Security Council and the Economic and Social Council. Such a change in structure would, more than just being symbolic, demonstrate the interdependence between human rights, development and peace. This review will doubtless be a good indicator for evaluating the first five years’ work of the Council, which by then must prove itself effective in combating human rights violations, wherever they may occur.
Non-Governmental Organizations will be responsible for monitoring and pressuring States to place the protection of human rights and human dignity above any other interests. It is not too early to assert that NGOs have a lot of work ahead of them and that their engagement with the HRC is now more necessary than ever. This article proposes to contribute to the success of the initiatives taken by these organizations.
Principal characteristics of the HRC, innovations in relation to the Commission on Human Rights, challenges for its success and forms of NGO action
What follows is a description of the main characteristics of the Human Rights Council, the innovations in relation to the former Commission on Human Rights, some of the challenges the Council will face and suggestions for concrete forms of action by Non-Governmental Organizations in this new body.
It is worth pointing out that the suggestions on how NGOs can engage with the Human Rights Council are not limited to the strategies permitted only for NGOs that have consultative status with ECOSOC. These suggestions also place little importance on the distance between NGOs and the Council´s headquarters in Geneva.
The information contained in the following tables draws on General Assembly Resolution A/RES/60/251 and Human Rights Council Resolution A/HRC/5/1, as well as articles and reports on the topic that have been published to date.17 There are in all seven tables, in the following order:
1) Election and membership
2) Agenda and Program of Work
3) Methods of Work and Rules of Procedure
4) Universal Periodic Review Mechanism
5) Special Procedures
6) Human Rights Council Advisory Committee
7) Complaint Procedure
1) Election and membership
The electoral process is considered one of the major differences of the Human Rights Council in relation to the former Commission on Human Rights, since members are elected by the UN General Assembly and criteria have been included for presenting candidatures. Furthermore, the possibility exists in the Council to suspend the mandates of members that commit systematic human rights violations. The new composition of the HRC is also quite innovative, giving African and Asian countries a proportionally superior numerical force than they held in the Commission.
2) Agenda and program of work
The agenda defines the items to be addressed by the Human Rights Council in its ordinary sessions and that are, therefore, incorporated into the Council’s program of work both for the whole year and for each individual session.
3) Methods of work and rules of procedure
These define the general functioning of the Council’s ordinary and special sessions, other possible types of meetings and the quorum for approving resolutions, among other things.
4) Universal Periodic Review Mechanism
Mechanism created by General Assembly Resolution 60/25134 that determines that all UN member states (universally) will periodically undergo a review process. The objective of the review is to determine the fulfillment by States of their international human rights obligations and commitments. It is considered the most innovative instrument of the Human Rights Council given the universality of coverage and the intention to combat the selectivity and double standards in responding human rights violations that existed in the Commission on Human Rights. The Council’s Member States undergo a review during their mandates and the review cycle lasts 4 years, meaning that 48 countries will be reviewed each year.
Since it is an entirely new mechanism, the table below does not contain a column on the innovations in relation to the former Commission on Human Rights.
5) Special procedures
This is the mechanism whereby special representatives and rapporteurs, independent experts and working groups examine, monitor and prepare reports on the situation of human rights: (1) in specific countries (country mandates) or (2) on specific issues (thematic mandates).42 During the institution-building process, special procedures were one of the most controversial topics, with questions raised about the need for their existence and an attempt to weaken this system by various member states.
6) Human Rights Council Advisory Committee
This committee is a subsidiary body of the Human Rights Council that replaces the former Sub-Commission on the Promotion and Protection Human Rights (Sub-Commission). Its job is to provide advice on thematic issues of interest to the Council.
7) Complaint procedure51
Procedure through which individuals and NGOs can file complains of systematic human rights violations52 that occur in any part of the world and under any circumstances.