Castan Centre for Human Rights Law
The UN Commission on Human Rights
Address to the Castan Centre for Human Rights Law by Ambassador Mike Smith, Australian Permanent Representative to the UN in Geneva and Chair of the Commission on Human Rights in 2004
Ladies and Gentlemen
It is an honour and a great pleasure to be here today. Having said that, it is also a bit intimidating. The Castan Centre is a by-word in academic circles for teaching and researching human rights law. As someone with no formal training in human rights, I fear it should be me who is sitting out the front there, and those of you who lecture or reflect on the great issues facing international human rights at the Centre, who should be up here doing the talking. In any case as I understand the format, you will have ample opportunity to set me right later on in the program.
If I am not an expert in human rights, why am I here? I guess its because I am a practitioner in the field of international human rights diplomacy. And diplomacy has a considerable impact on both the content of international human rights standards and on the effectiveness of their promotion around the world. Our work dovetails with the work of the real experts be they in academic institutions, in the courts or out in the field and the place where we come together is at the Palais des Nations in Geneva, for the annual session of the UN Commission on Human Rights.
The Commission on Human Rights
I suppose you could say that the Commission on Human Rights is the centerpiece of the UN’s machinery to promote and protect international human rights. So let me begin by talking a bit about what it is, what it does and where it fits into the broader UN system.
CHR is a functional commission of ECOSOC, one of the principal organs of the UN, composed of 53 member states elected for 3 years. It is an intergovernmental body, not an expert body. In this respect it is to be distinguished from the Human Rights Committee with which it is often confused, the treaty body that examines reports from and complaints against countries that are party to the International Covenant on Civil and Political Rights. That body is composed of experts, elected in their own right, who essentially speak on their own behalf.
As originally proposed and advocated by many, CHR might have been an expert body – indeed its precursor back in 1946, the so-called ‘nuclear’ or preparatory commission chaired by Eleanor Roosevelt, was made up of 9 individuals chosen for their personal qualities. But this arrangement did not survive the politics of the first General Assembly and when properly inaugurated in 1947, CHR was composed of 18 elected individuals serving as government representatives.
Notwithstanding this, in its early years, representatives appointed by governments often were distinguished individuals who largely operated on the basis of their own instincts and judgment. Perhaps because of this, the Commission worked productively over the first 15 years or so to identify and codify a range of fundamental universal human rights norms. These were encapsulated initially in the Universal Declaration of Human Rights and subsequently elaborated in the International Covenants on Economic Social and Cultural Rights and on Civil and Political Rights.
Over the years the Commission has changed and evolved. It has grown as I said to 53 members and instead of being composed of distinguished individuals, is made up of professional diplomats like me who operate on instructions from their capitals. Moreover once the basic norms of international human rights law had been agreed, and then a second generation of more detailed standards – related to racism, women’s rights, children, torture and migrant workers - had been concluded, the standard-setting aspect of the Commission became less urgent. Instead it focused more on improving implementation of human rights and it evolved into a forum where any human rights concern could be raised and political and philosophical differences over issues such as collective rights could be debated.
The Commission today
So what is the Commission like today. Firstly it is unlike any other multilateral meeting I have attended. It convenes for 6 solid weeks in March-April every year and addresses an agenda that encompasses just about any issue you could think of with any relevance to human rights. Although it is formally made up of just 53 members, virtually the entire UN membership attends and participates in the debates and negotiation of texts. It operates at a level of stress and tension that is unusual in the UN, certainly for such a sustained period.
Over and above the government representation, the Commission has from its earliest days been the UN body that most interested civil society and today NGOs participate in its proceedings in a way unheard of in most UN forums. This year for example delegates from some 250 NGOs were registered and in all, including national delegations, we had over 5,000 registered participants at the meeting.
It is easy to find fault with the Commission. I happened to be seated at dinner next to the then High Commissioner, Sergio de Mello, 2 days after the Commission finished in 2003 and we compared notes on our impressions – both having survived our maiden Commission. These were very similar and mainly negative. We found it, as an institution
· Preoccupied with the politics of issues rather than the substance
· Out-of-touch with the real world and apparently oblivious to the impact or not of its decisions outside Geneva
· Inconsistent in what it addressed and did not address
· Inconsiderate in its treatment of speakers, and
· Tolerant of a level of invective and verbal intimidation that neither of us had seen elsewhere in the UN system.
Perhaps it is the proprietorial interest I have developed this year, being the person-in-charge of the Commission, but now I have a rather different take on it as an institution. The most significant insight I gained watching the drama unfold from the podium was to appreciate that CHR is a great deal more than the resolutions and decisions it adopts, and on which it is largely judged outside of Geneva.
· Firstly the debate on issues that swirls around the conference room is probably as important as the formal decisions. Nearly 2,000 statements were made this year; we had over 50 expert guest speakers and interactive dialogues were held with many of these; and we had 88 Ministerial-level participants in the High Level Segment.
· There is a staggering range of related activities that take place in the Palais outside the conference room – more than 600 side events this year. These seminars, debates, presentations and the like, dealt with both thematic and country situations and enabled open discussion between NGOs, experts, national human rights commissioners, national delegates and UN officials on every conceivable issue.
· Then there are the informal contacts that are made possible by the fact that so many of the world-wide human rights network gather in Geneva for the Commission. In effect, CHR is like a global human rights convention or festival that annually draws representatives the full range of organizations and individuals interested and involved in the field.
Achievements of CHR
So what does the Commission actually do? And more importantly what does it achieve?
Essentially the product of the Commission is a series of resolutions and decisions adopted frantically in the closing days of the 6 weeks. Non-members and NGOs have a reduced role in this stage, though they are active in the wings, lobbying. CHR 60 adopted 88 resolutions, 28 decisions and 5 Chairs statements on a range of issues, from country situations – Sudan, DRC, DPRK, Belarus – through thematic issues – human rights education, the right to development, the rights of children – to procedural or machinery issues, such as the resolution providing direction to the Sub-Commission on the Promotion and Protection of Human Rights.
Other than the political weight of these declarations (particularly if adopted by consensus) – they are not legally binding – that pressures countries to take notice of them, in some instances the Commission creates so-called Special Mechanisms – a Special Rapporteur, (e.g. on DPRK), an Independent Expert (e.g. on Human Rights and Terrorism), or a Working Group, (e.g. on Arbitrary Detention), to follow up the implementation. These study the issue of their mandate, make whatever visits are necessary and report back to the Commission each session. As I mentioned there were 35 of these at the start of CHR60, and another 8 were created this year.
What else does the Commission do? Well this year it held a ceremony to mark the 10th anniversary of the Rwanda Genocide which provided the venue for an address by UN Secretary-General that helped draw the world’s attention to what was happening in Darfur. It also held, following the killing of Sheikh Ahmed Yassin, the Hamas leader, a Special Sitting focused on the Middle East and specifically the policy of targeted assassinations.
Does the Commission have an impact on the ground – i.e. are any individual or group’s rights better protected as a result of its work? One would certainly hope so but it is hard to say. Countries are publicly criticized and are forced to defend their policies. Sometimes I suspect they do change those more egregious practices that attract negative attention in the Commission.
As I mentioned earlier, in some respects the biggest impact probably comers from the interaction between NGOs and states and the fact that CHR draws such a large group of the world’s human rights community together to debate issues and compare notes. There is a lot of discussion in the margins on how best to promote human rights and I sense that this helps to reinvigorate members of civil society who return to their countries with fresh ideas on how to take things forward. At the end of the day that may be what has the most impact in communities outside Geneva.
Negative Aspects of CHR 60
There were aspects of the Commission’s session this year that were problematic:
· There continued to be a lack of respect for speakers – sometimes the conference room seemed more like a Middle East bazaar with a constant buzz of conversation going on, delegates huddled in the back, people rushing in and out whispering urgently into their mobiles, all while delegates were trying to deliver their carefully crafted statements.
· There was still a fair bit of excessive language, which was not only offensive to the person or state it was directed at, but in as much as it prompted points of order or rights of reply, was quite disruptive of the meeting.
· There was again arguably some inconsistency in the country resolutions – some situations were repeatedly addressed, e.g. Israel, while others avoided being addressed at all.
· The interactive dialogues with the special procedures – the 35 Special Rapporteurs, Independent Experts and Committees of Experts, were often stilted or insubstantial.
Trends in the Commission
There are a number of trends in the Commission, some positive, some negative, that are worth noting.
Firstly increasingly the conference is run by the so-called Expanded Bureau – the Chair, the 3 Vice-Chairs and the Rapporteur plus the 5 regional coordinators. The advantage of having the latter in the Bureau is that they report back on discussions to their groups and bring into the bureau the views of their members. Transparency and communication with the membership is thereby greatly enhanced and some tricky issues are able to be headed off at the pass.
This improved transparency extends to the Bureau’s interaction with the NGOs. Prior to the Commission and every week of the 6 week session, the Expanded Bureau had an open-ended meeting with the NGOs where we explained what procedural decisions had been taken and listened and responded to their complaints.
The Commission is increasingly working through the regional groups, rather than as individual members. This does have some advantages – group statements save time for one thing – but it does also mean sometimes that ideologically aggressive delegations can push through more combative and confrontational group positions – e.g. Zimbabwe has helped drive some uncompromising African positions on country resolutions.
As I mentioned, NGOs have always played a role in CHR and in many respects that is growing in importance. For one thing many countries are now more relaxed about their presence and are more open about dealing with them bilaterally. For another the sheer number of NGOs is increasing at a greater rate than the membership of the UN, so they are gaining an increasing proportion of the debating time.
On the other hand a few governments are very uncomfortable about the presence of national NGOs critical of them at this international meeting and work to limit their influence. In addition more and more governments have sought to counter the influence of NGOs by creating so-called GONGOs, that advance the Government line on issues and attack their nation’s ideological enemies. Sometimes the debates between e.g. Pakistan and India are carried out more virulently by opposing GONGOs than by the national delegations themselves.
The participation of national human rights institutions is growing in importance – this year the Bureau agreed to give them extra meeting time and longer speaking limits as well fixing in advance a day on which their item would be debated to facilitate maximum participation by national human rights commissioners.
The number of special procedures in expanding, I believe something we have to watch. Not only are we in danger of debasing the coinage – at the present rate of growth we could be up to 70 or 80 by 2010 - but with some 43 Special Procedure mandates now and no additional resources, these already strained mechanisms are going to be able to do less and less. Unfortunately they are an attractive extra element that can be tacked onto a resolution to beef it up but there is not always much thought given either as to whether this is the most effective way to tackle the problem or as to the resource implications.
The chairs and members of the treaty bodies are increasingly participating in the Commission, delivering statements and taking part in side events. This is an important and positive development as it reflects the increasing interdependence of the different elements of the international human rights machinery and it reduces the sense of different bodies operating in their own vacuum, oblivious to what is happening in similar institutions elsewhere.
Being the Chair
So what was it like chairing this body? A great honour of course, but mainly pretty intimidating. It has the reputation for being the most unruly and politically charged forum in the UN and it lived up to that reputation this year. Every day seemed to bring different tensions or another crisis. The tensions did not just arise because of the difficulty of managing the predictably hot political debates, (the Middle East, Cuba, China etc) but because of issues that blew up out of left field and had to be handled somehow from the podium, in the Bureau, or through direct dealing with the relevant delegations. Examples of these sorts of unexpected issue included:
· A challenge to the credentials of one US delegate by the Cuban delegation on the basis that he was a convicted terrorist
· Circulation by delegations of allegedly ‘offensive’ pamphlets
· Sensitivity over the calling for a minute of silence for victims of the Madrid bombing
· Requests for timetable changes to take account of national or religious holidays
· Uncertainty over the procedural handling of the issue of sexual preference
· Mis-interpretation into English of a critical speech by the African Coordinator
· Banning of several NGO delegates from the conference by the UN on the basis of Interpol warrants issued at the request of Iran
· Protests at the names/organizations under which certain individuals were registered
· Nomination by Venezuela of a Swiss national as a candidate for election to a Latin American position
· Leak to the international press of the High Commissioner’s draft report on Sudan
· Physical assault of an NGO delegate by a Cuban Government representative.
Actually right at the start there was some uncertainty that we would even get the agenda adopted, given African hostility to the item on country situations and rumors of a plan to move its deletion from the floor on day one. Had something like that happened, the meeting could have collapsed in a shambles. In the end the challenge did not eventuate, but innovations proposed by the outgoing Bureau to help with the chronic time management problems, could not be adopted because of opposition in some quarters. So we had to come up with other ways to manage this, including pushing through draconian speaking limits, strictly enforced, and announcing that we would start every meeting dead on time, (something unheard of in UN annals).
The most difficult task for the Chair, is having to rule on points of order and manage the debate generally. You have to be aware all the time that every ruling is setting a precedent that you are going to be bound by. I was warned by a UN Legal Adviser in New York that the thing that can most devastatingly damage a Chair is to be seen as other than completely impartial. And the easiest way to give that impression, wittingly or unwittingly, is to be inconsistent in your rulings. That leads to loss of respect and credibility and provokes challenges to the order of the meeting. Needless to say over 6 weeks there is plenty of opportunity for delegations to contrive situations that test whether you are being impartial and ruling with consistency.
Probably the trickiest moment for me was having to interrupt the Cuban Ambassador, in full rhetorical flight before the cameras of Cuban state TV, to ask him not to use insulting language about the Special Rapporteur on Cuba. Possibly the most fortuitous moment was on the first day of the general debate when the Head of the US delegation ran over his allocated 6 minutes speaking time and I gavalled his off at 6 minutes and one second. He was momentarily offended, but it set the tone and no-one could subsequently complain at being stopped in mid-sentence if they had run out of time.
In the end it kind of came out alright and for the first time in 3 years CHR did complete its full agenda without having to either cluster items or reduce speaking times in the course of the meeting. So it was for me a great professional and life experience – but not one I would leap to repeat soon!
Reform of the Commission
How could the Commission be made more effective?
What the UN does best and what the Commission has done well in the past, is debate issues and identify and codify universal standards. It can also give international legitimacy to human rights promotion and protection activities. What the UN does not do well is to act swiftly or decisively or, make things happen on the ground.
Given that we have now arguably identified already most of the international standards we need and the problem is rather seeing these standards respected, I think the Commission should, while using its authority as the main human rights body in the UN to pronounce on human rights issues, give support and legitimacy to those who can actually drive implementation in countries, something the UN cannot do so well itself.
To give its pronouncements greater weight I would argue we should universalize the membership of the Commission. This is the opposite of what some people urge – mainly NGOs but also some Western Governments - who rather want to limit the membership by establishing criteria for candidates for election. I do not think this would ever be accepted for one thing, but in any case I think countries with poor human rights records ought to be in the Commission to be forced to respond to their critics.
In any case, since CHR is no longer a quasi-expert body, and given that all members of the UN are present and active at the conference anyway, it makes no sense to maintain the distinction between members and non-members. Universalisation would have 3 benefits:
· It would give the legitimacy of universality to the Commission’s pronouncements
· It would eliminate the need for an election each year that does not necessarily deliver a representative membership
· It would aid in UN reform by eliminating the need for the Third Committee which currently simply repeats, at a less elevated level, the debates and resolutions adopted by the Commission 6 months earlier.
Secondly, recognizing that other than through moral suasion the CHR does not have the capacity to implement its recommendations in country, it should give support to those who can. It could do more to:
· Strengthen the hand of national human rights institutions, by encouraging their formation and boosting their role as a central actor in national human rights implementation
· Provide technical assistance to governments willing, but not able, to improve national human rights
The other area ripe for reform is re-casting of the agenda. Currently it comprises 21 items and in theory member delegations can speak under every item. Given the growing number of people clamoring to address the Commission – NGOs, special procedures mandate-holders, distinguished visitors, members of parliament, national human rights commissioners and so on, in addition to states, we as a Commission had to limit statements this year strictly to 6 minutes for members and 3 minutes for observers. (The special procedures received 7 minutes plus to deliver their reports and Ministers were given a – rather generous – 15 minutes for their statements in the High Level Segment.)
Were the agenda collapsed down to, say, 14 items, statements could be correspondingly more substantive.
But there is another benefit to reducing the agenda – and a danger. The benefit is that currently there is a disproportionate focus on the Middle East as it comes up under at least 4 items and for some delegations, this is the major issue. In 2002 something like 60% of the Commission’s time was spent on debating Israeli practices, clearly way out of proportion to other big issues of human rights concern in the world. If the agenda was reduced, at least one and possibly two of those Middle East items would be merged with a more general item on situations of concern.
The danger is that any attempt to fiddle with the agenda would open up a big debate on country resolutions generally – so-called ‘naming and shaming’ resolutions. There is already a lot of pressure from the African Group to eliminate Item 9 – the item on situations of gross violations of human rights anywhere in the world, and broader agenda reform might provide the opportunity to achieve this goal.
Australia’s Role on and Interest in the Commission
Australia has always been active in the Commission, whether as a member, particularly in the early years, or as an observer. This current term of membership – 2003-2005 has been a bit special as we have been on the Bureau in both years so have had an abnormally high profile and greater influence as a result. We have used that opportunity not only to promote sensible procedural reform but to advance substantive Australian ideas and initiatives. I will mention 3 areas of Australian priority that we have been able to push along:
· Firstly, good governance. We have run a resolution highlighting the critical importance of good governance, i.e. amongst other things, a fair and equitable bureaucracy; an independent judiciary; transparency in decision-making; accessibility of people to decision-makers and criminalization of corruption, to the enjoyment of human rights in any country. In its aid program the Australian Government has increasingly been focused on governance and institution-building as a prerequisite for real and substantial development and the same thing broadly applies in the human rights field. In a couple of weeks time the OHCHR will be conducting a seminar/workshop in Seoul, to be opened by the new UN High Commissioner, and to which Australia is a major contributor, that will try to build an international consensus around the priority elements of good governance.
· Secondly, the role of national human rights institutions. I have already said a little about this – the simple truth is that a part-time UN Special Rapporteur or Working Group, with very limited resources and an enormous international canvas on which to operate, can visit and report on at best one or two countries a year. On the other hand a national human rights commission, even one with minimal staffing, is on the job 365 days a year and importantly understands the political, social and cultural context in which human rights problems arise. In the longer term this has got to be the better mechanism for promoting international human rights standards. At the Commission, Australia advocates increasing their role in our annual resolution adopted by consensus and on the practical level we provide assistance to both the Asia Pacific Forum on NHIs and to the OHCHR for its work in promoting NHIs.
· Thirdly, a focus on the Pacific. Unfortunately no Pacific island states, other than New Zealand, are represented permanently in Geneva, so countries like, Fiji, the Solomons, PNG etc, do not attend the Commission and the Pacific perspective is missed in the debates there. This is a great pity because most Europeans still see the countries in the Pacific as South Sea paradises of swaying palms and endless beach parties and do not take seriously the issues that arise in that region. This year we were able to bring to the Commission representatives of civil society from Bougainville, the Solomons, Samoa and Fiji to talk about the stresses and problems in their societies and we are currently working to persuade the OHCHR to open an office in Suva.
Conclusion
As will be clear from what I have been saying, the Commission on Human Rights is a complex organism and one that is far from perfect. It shares the faults of the UN more broadly – notably more talk than action and even then it’s declarations are frequently lowest common denominator compromises and often driven by political motives rather than purely human rights considerations. There is not much we can do about that. We could doubtless organize an alternative forum of right-thinking individuals which could come up with vastly more pungent declarations, but they would carry nothing like the weight of a broadly representative multilateral gathering such as CHR.
This leads me to make a final point. We should not have unrealistic expectations of the UN’s capacity to address particular domestic human rights problems through the Commission or its mechanisms. It can highlight examples of gross and persistent human rights abuse and can build international support for improving human rights in thematic areas. But it can rarely address particular or individual cases effectively. In any country that has more than even a rudimentary national human rights protection system, (i.e. an elected government, an independent judiciary, appropriate laws in place, a free press, an active civil society etc), in place, national debate and domestic remedies are almost always going to be more effective than anything the Commission or its Special Procedures can come up with. The mechanisms of the Commission on Human Rights are in this sense a fallback when there are no adequate domestic protections and they will rarely be able to do more than raise the profile of a particular issue.
I am conscious that in this presentation I have barely mentioned the roles of the UN High Commissioner for Human Rights or the treaty bodies, either in the work of the Commission or more broadly in developing, promoting or protecting human rights. But I would be happy to respond to comments on these aspects in the discussion period.
Thank you very much.
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