I. Obituary of the CHR

Undoubtedly, the Commission on Human Rights (CHR) which was first chaired by Eleanor Roosevelt has a proud history. It gave the world the Universal Declaration of Human Rights and other instruments of international human rights law. It also adopted international human rights law standards on thematic issues such as children, torture and minorities. But, the CHR in its life time has failed to adopt a Declaration on the Rights of Indigenous Peoples despite considering the rights of indigenous peoples since the establishment of the Working Group on Indigenous Populations in 1982.

The CHR survived the cold war politics and gradually developed Special Procedures to address many deplorable human rights situations. The first special procedure to be adopted was the UN Working Group on Involuntary or Enforced Disappearances in 1980 established to address systematic disappearances mainly in Latin America. Initially, the special procedures focused on civil and political rights issues but gradually expanded to economic, social and cultural rights.

However, the credibility of the CHR failed to survive euphoria of the end of cold war symbolized by the fall of Berlin Wall and the Vienna Declaration and Programme of Action. In post 1990s, the genocides in Rawanda, Burundi and in the heart of Europe, the former Yugoslavia required immediate humanitarian intervention of the United Nations and other bodies of international community.

Yet, these are not the countries which witnessed genocides and war crimes that were responsible for discrediting the Commission on Human Rights. A bunch of illiberal democracies and countries ruled by the military dictators and authoritarian regimes formed an alliance at the Commission on Human Rights under the banner of Like Minded Group (LMG) consisting of Cuba, Egypt, Pakistan , China , India , Malaysia , Indonesia, Syria , Algeria , Nigeria and Tunisia. In 1998 taking advantage of the mid-term review of the Vienna Declaration and Programme of Action, the Commission on Human Rights took a decision on “Enhancing the Effectiveness of the Mechanisms of the Commission on Human Rights” (1998/122) and “Restructuring the Agenda of the Commission on Human Rights through Resolution” (E/CN.4/RES/1998/84) that had devastating effects on the credibility of the Commission on Human Rights. Protecting oneself from censuring of the Commission on Human Rights and destroying the independent mechanisms that criticise the human rights records have been the motto of seeking membership to the Commission on Human Rights. Bloc voting and procedural obstacles became integral features of the Commission on Human Rights.

Technical cooperation which has been used to escape scrutiny at the Commission on Human Rights became order of the day. Not surprisingly, one of the main tasks of the Human Rights Council is to “promote human rights education and learning as well as advisory services, technical assistance and capacity-building, to be provided in consultation and with the consent of the Members States concerned”. When the adoption of the resolution on the situation of human rights in Myanmar was being considered at the 61 st session of the CHR, the Permanent Representative of India, the largest democratic country in the world, stated “ India favoured the use of technical assistance to improve the situation in all cases, and in the specific case of Myanmar , it seemed the country had indeed cooperated. Therefore, the draft resolution might not have been necessary”. One wonders why technical cooperation was not extended to the apartheid regime in South Africa. As to the cooperation by Myanmar, UN Secretary General's former Special Envoy Ismail Rizali refused to extend his contract as Special Envoy because of the lack of cooperation. Secretary General's latest report on the situation of human rights in Myanmar to the 62 nd session of the Commission on Human Rights says it all.

II. The latest UN pudding: Human Rights Council

Until 6 March 2006, no concrete information was available on the 62nd session of the Commission on Human Rights. The entire process leading up to the 62nd session has been caught up with the process for the establishment of the Human Rights Council.

The draft resolution presented by General Assembly President Jan Eliasson on 23 February 2006 has been welcomed by the Secretary General Kofi Annan and UN High Commissioner for Human Rights, Louise Arbour. Most non-governmental organisations too have welcomed it.

Will the Human Rights Council be better than the Commission on Human Rights? The proof of the pudding is in the eating but past experiences at the Commission on Human Rights do not portend positive. With the same diplomats in Geneva, how can the principles of “impartiality, objectivity and non-selectivity” (OP 4) be ensured in the work of the Human Rights Council”?

The election procedure of the members of the proposed Human Rights Council is being touted as the main positive aspect, apart from universal periodic review of the human rights records of the member States. OP 7 of the draft resolution of 23 February 2006 provides for election of the members “directly and individually by secret ballots by the majority of the members of the General Assembly”. Candidates must win an absolute majority - that is, at least 96 positive votes in the General Assembly. Abstentions will be obviously be considered as negative votes.

However, membership could only be successful if there are too many aspiring candidates from a region, as the seats are reserved along the regional grouping: African Group 13; Asian Group 13; Eastern European Group 6; GRULAC 8; WEOG 7. Regional groups often reach consensus among themselves on nomination. It is precisely why Saudi Arab serves as the Coordinator of the Asia Group at the 62nd session of the Commission on Human Rights. Suspending a member of the Human Rights Council found guilty of “gross and systematic violations of human rights” is unlikely to happen if the failure to intervene in Darfur is any indication.

Nonetheless the provision that no member should serve more than two terms is a positive development. Russian Federation and India, the only two countries to serve in the UN Commission on Human Rights since its inception, have mainly contributed to the destruction of the mechanisms. In the post September 11th period, governments having credentials to point fingers at others have become extinct.

III. Confusion at the funeral

The draft resolution of 23 February 2006 calls for abolition of the Commission on Human Rights on 16 June 2006. It is unclear as to how decisions/resolutions to be adopted at the 62nd session of the Commission on Human Rights be considered by the proposed Human Rights Council. The draft resolution of 23 February 2006 does not explicitly guide especially with regard to the special procedures and mechanisms of the Commission on Human Rights. OP 12 only refers to allowing “substantive interaction with special procedures and mechanisms”.

The funeral session of the Commission on Human Rights must not end with condoning the gross and systematic violations of human rights and therefore, it must adopt its resolutions. Since the Human Rights Council is being established “in replacement of the Commission on Human Rights”, it is essential that decisions/resolutions of the 62nd session of the Commission on Human Rights, especially with regard to the special procedures, are also ratified by the first session of the proposed Human Rights Council. The CHR can adopt a resolution on that issue.

Source: The Asian Centre for Human Rights (ACHR) (www.achrweb.org)