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Executive summary
The Commission on Human Rights (the Commission) had served as the main political body which addressed human rights issues in the United Nations (UN) system. Despite its many achievements, the Commission came under severe criticism in its last few years of functioning because of its membership and selective monitoring of countries. As a result, the Human Rights Council (the Council) was created by the General Assembly in March 2006 to replace the Commission. The Council assumed all the former mechanisms, mandates, functions and responsibilities of the Commission. The General Assembly however tasked it with reviewing these mechanisms to improve and rationalise them, where necessary. The Council was also required to undertake a periodic review of the fulfilment of human rights obligations of all UN member States, under a new Universal Periodic Review (UPR) mechanism. However, the General Assembly left it up to the Council to develop the actual mechanism. All these tasks had to be completed within the Council’s first year of functioning.
The Council decided to carry out the discussions on the institution-building process through three working groups. After a few months of discussions, it became
obvious that, rather than striving to improve on what had been created under the Commission, the fight had become centred on how to preserve the protections
offered by those mechanisms. The final institution-building package that was adopted on 18 June 2007 was based on a compromise text suggested by the President of the Council, Ambassador De Alba. The President’s text did not provide much in the way of a reform or a strengthening of the system but managed to keep out the most negative proposals.
The balance sheet of the institution-building package is as follows:
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The agenda has been improved to give it more fl exibility. The degree to which it also offers predictability to NGOs and allows for more focused discussions
and prioritisation will depend on the programme of work, which is yet to be developed.
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The arrangements for NGO participation have been maintained and those for NHRI participation have been consolidated.
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The 1503 procedure has largely been maintained as the new complaint procedure but with some limited improvements. The most notable innovation is that the complainant will now be provided information on the progression of the complaint and its final outcome.
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The ‘Human Rights Council Advisory Committee’, a new body with reduced membership and meeting time has been set up to replace the Sub-Commission. The scope of functioning of the system of expert advice has been greatly constrained and the role of the experts has been reduced to purely an ‘advisory’ one. The experts no longer have the ability to undertake independent initiatives and this is a significant loss. On the positive side, the development of criteria for nominations and a slightly better nomination system offers the prospect that the quality of expertise will be improved.
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The system of special procedures has been preserved but no steps were taken by the Council to make this mechanism more effective. The Council postponed
the review of individual mandates and this will now be undertaken based on the programme of work that will be developed for the second year. It is not clear what the outcomes of this staggered review process will be. The special procedures also now have a code of conduct, which was the best of the worst options, but has the potential to be intrusive to their work and to be misused by States. There is a new system of appointment, which could add greater transparency and bring in better candidates but also has the scope to give more power to the regional groups in the selection process.
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The institution of country mandates has been preserved but there is an atmosphere of strong hostility to country mandates, which may make it difficult,
though not impossible, for new country mandates to be created. Two country mandates, on Cuba and Belarus, were terminated and it is likely that at least a few of the others will not survive the review process.
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The UPR will be conducted by the entire Council, sitting as a working group, through a three-hour long interactive dialogue with the concerned State. The
review will be based on a national report or national information, and documents prepared by OHCHR compiling information from treaty bodies, special procedures, and other UN documents and from other stakeholders including NGOs. Observer States can participate and ask questions. There is no provision for formal involvement of experts in the process but States can chose to include them in their own delegations. NGOs can attend the review but can not participate in the discussions. The possible outcomes of the procedure are quite weak but their adoption is not subject to the consent of the concerned State. The UPR is not, at least on paper, the strongest of mechanisms that could have been set up. Neither is it the weakest. It may evolve into an effective mechanism but it remains too early to make fi rm predictions without seeing its operation in practice.
Overall, it is difficult to evaluate the outcomes of the institution-building process because the conclusions vary based on the yardstick used. Viewed in the context of the realities of the political process and battles over the past year, the outcome is a success because it managed to preserve most of the institutions that came under attack. Problems however begin to emerge if we look further back to the expectations behind the creation of the Council and the promises of ‘reform’ of the system. The key determinant of whether the Human Rights Council represents an improvement over the Commission is the UPR. If the UPR functions well this
may outweigh the losses in other areas but if it does not, there can be little doubt that the institutional design of the Council does not represent a marked improvement over that of its predecessor.
The process is still not over and many of the operational details of the institution-building package still need to be fi nalised. The institution-building package is also very broad in the way it is drafted and opportunities exist for States and NGOs to reshape it to make the mechanisms more effective in practice. The Council still has the tools to carry out its functions as it retains the capacity, by and large, to do all that the Commission could. How it uses these tools towards ensuring the protection of human rights hinges, as always, on the political will of its members. What the Council does with these tools in the next few months and years will be the true yardstick of the success or failure of the reform process.
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