Human Rights Features (HRF): What are your initial reflections on the General Assembly resolution on the Human Rights Council?

H.E. Mr. Manuel Rodríguez Cuadros: I believe that it is a historic decision because the creation of the [Human Rights] Council is a step towards having a universal institution for the protection and promotion of human rights that is more effective, having increased legitimacy, and having more powers than did the Commission. I believe this will add to the United Nations' capacity to promote and protect human rights around the world.

There are four characteristics of the Council that are very important: one, it is a body that will be on a higher level than the Commission was, in the sense that it will be answerable directly to the General Assembly. Second, the Council has its constitutive base in a resolution of the United Nations'

General Assembly, which is directly binding on all States parties. You will also agree on the need for cooperation and of the importance of a resolution that pointedly refers to the need for cooperation as an obligation.

Three, the Commission always had the problem of selectivity, recriminations, and double standards. And the Council, for the first time in the history of the United Nations envisages a system, or a mechanism, for a universal review of the human rights records of all countries. That is also good news. This universal review system will not substitute the traditional one but it will be in addition to the one that was used by the Commission and which is now being transferred to the Council. Further, the Council's mandate will not be merely to adopt the procedures, mechanisms, functions and responsibilities of the Commission but also to revise and improve them in order to enhance its own effectiveness and legitimacy.

Four, I believe that the text of yesterday's resolution contains important questions relating to the function of human rights monitoring. There is an emphasis on cooperative approaches to promoting better institutional attitudes towards human rights protection in each country, to providing restitution for human rights violations and to providing for punishment for such violations in order to tackle impunity.

And finally, the Council will be able to ensure the same level of participation for NGOs and human rights defenders as at the Commission. It is for this specific and objective reason that I maintain that the Council will provide a higher level of protection and increased efficiency and legitimacy.

HRF: Following yesterday's resolution, what will be the modalities for the functioning of this last session of the Commission on Human Rights, and of the new Human Rights Council?

H.E. Mr. Cuadros : Firstly, I cannot say what the Commission's decision will be, because the Commission is yet to take a decision. But, my own understanding on this issue is as follows: the creation of the Council is now a reality and the Commission must implement the mandate given by the General Assembly. In that sense, the majority of countries feel that the session of the Commission should essentially be a procedural one. There is no other possibility. Why? Because the Council will meet soon; on 19 June we will have the first meeting. And the entire agenda now has to be taken up by the Council. In that sense, I do not really see any 'protection gap'.

With regard to the Special Rapporteurs, I do not know. It is up to the Commission. The Special Rapporteurs may not present their reports to this session of the Commission [but then] we will have the Council meeting in June. And perhaps, as regards the implementation of the Rapporteurs' recommendations, it will be better if they present the reports to the Council which will be better equipped to follow up on the recommendations.

HRF: Will the Council begin substantive discussions immediately or will it first negotiate its rules of procedure?

H.E. Mr. Cuadros: Personally, I do not think the two are mutually exclusive. I believe that the Council, from its first session onwards, must deal with substantive issues and simultaneously also engage with procedural questions. There is another aspect to the 'protection gap' question: The Commission will exist until the very last possible moment, until the beginning of the Council. This means that in a case of emergency, if something happens somewhere in the world, the Commission could be convened, for example, for an extraordinary meeting. In case there is a human rights emergency, in this sense, I believe the protection gap will be prevented.

HRF : How do you see the universal periodic review of States' human rights records working, beyond last year's suggestion that the High Commissioner's Office would do annual reports on all States? What is your view on Mexico's suggestion that independent experts be also involved in such a review process in addition to States?

H.E. Mr. Cuadros : It is too early to predict anything on this issue because the problem needs to be examined and a holistic approach needs to be taken towards all the mechanisms and Special Procedures of the Commission. We will know in June. But, in my personal opinion, I believe that the universal review procedure should not inhibit, or affect, any of the existing procedures, that is to say, the communication procedures, the Special Mechanisms, or even the procedure relating to monitoring by countries themselves. I think that with regard to the latter, it is necessary to have very practical rules that will give this procedure legal protection to avoid extreme politicisation.

With regard to the specific characteristics of the universal periodic review, I believe that it is necessary to do a responsible analysis, but with a holistic approach to avoid extreme positions and to avoid duplication etc.

HRF : No-action motions were often used to block discussion on various issues in the Commission. Will the Human Rights Council be any different?

H.E. Mr. Cuadros : In principle, the Council will begin its work with the rules of procedure of the Commissions of ECOSOC, practically with the same rules as the present Commission, which provide for no-action motions. But the General Assembly has given the Council its mandate as also the capacity to act, elaborate and approve its own rules. Thus, the Council can change the current rules. If I could venture my personal opinion - as a delegate from Peru in any event, but not as Chair because I would not want to prejudge the work of the Council on this issue - I believe that on human rights matters it is unnecessary and counterproductive to resort to no-action motions.

HRF: With regard to Special Procedures, do you perceive a threat to their functioning through suggestions for "streamlining" of Special Procedures? Will the Council seek to enhance ways of engagement with the Special Procedures, especially in view of the useful and positive experience of interactive dialogues in the Commission?

H.E. Mr. Cuadros : Of course, I believe that the Special Mechanisms system is one of the Commission's major gains, one that has worked very well. The impact that the different Rapporteurs have had on the lives of millions of people across the world has been very significant. I think that not only is it necessary to preserve the interactive dialogue during the reform of any of the mechanisms in question, but also to improve the mechanisms and increase their efficiency.

For example - and I am still expressing my personal opinion here - a report may be brought out following solid work on the ground and after plenty of consultations and interviews with all the actors and politicians in those countries. And if this report reveals massive, systematic and flagrant violations of human rights, and the Rapporteur has worked a good deal on recommendations etc, then it is not adequate to debate the report merely for five or six or seven minutes. For me that is not a serious debate.

Human rights are crucial to social and political life. I think that in the case of the Council, since it will have many more sessions than the Commission, it is important to give as much time as required, without exaggeration, but the required time necessary to debates and interactive dialogues on the reports of the Special Rapporteurs. This will also allow the Council to take effective and legitimate decisions. The Council will have more time for this, as it will meet for at least 10 weeks each year.

HRF : We are particularly concerned that yesterday's resolution refers to “a” system of Special Procedures rather than “the” system.

H.E. Mr. Cuadros : I believe that it is a question of semantics. All legal and political texts (as this text, which is at times legal and political) have their own rules of interpretation. The first rule of interpretation says that it must be read from the perspective of its objective and in a systematic manner. One can see that Article 6 of the resolution says that the Council will take over all the mechanisms of the Commission, and if after this, it says that there will be 'a' mechanism, then I would think that it refers to the current mechanism. Although, I repeat, the Council will have the capacity to improve upon it. Article 6 refers to improvement or rationalisation, and I believe that one must interpret it in that sense because the Special Mechanisms system is one of the Commission's most significant successes.

HRF: How will the Council seek to enhance NGO participation?

H.E. Mr. Cuadros : The Council cannot define the qualifications for NGO representation. That power is with ECOSOC and that is the rule in force in the United Nations. The General Assembly resolution says that NGO participation on the Human Rights Council will be regulated by ECOSOC and follow from the practice in the Commission. Thus, the responsibility is ECOSOC's. But the practice in the Commission is the other aspect, and in that regard I believe that we must enhance NGO participation [in the Council] to make the system more effective.

Second, one of the practices in the Commission was the annual sessions and NGO meetings with the Expanded Bureau, and I think that practice should be maintained in the Council, and perhaps even extended.

For me, NGO participation in the international, regional and national systems of human rights protection is crucial. I believe that human rights defenders are representatives and also defenders of civil society, and these two functions are essential for the effective functioning and legitimacy of the entire human rights system. It is not possible today to imagine an effective and legitimate system of human rights protection without the participation of civil society, NGOs and human rights defenders.

HRF : Finally, how does it feel to be the Chair of the last Commission on Human Rights?

H.E. Mr. Cuadros: I feel an enormous sense of responsibility. When you are the Chair of an institution that has worked for human rights for 60 years, it is truly a big responsibility, and my first reaction is to be fair to the Commission. I believe that during the past years, there was a profound crisis relating to the public procedures and country-specific resolutions. I do not believe that this crisis extended to the entire Commission. I think the NGOs would agree with me that the Special Procedures have done much to promote human rights protection all over the world. All the normative work of the Commission is not just important, but transcendent. All human rights [norms] had their origins in the normative work of the Commission. The Commission gave the world the Universal Declaration of Human Rights and the conventions on civil and political rights and economic, social and cultural rights. It gave humanity an integral and indivisible vision of human rights. Even the Declaration on Human Rights Defenders. And I could point to 20 [other] international conventions or declarations of great importance.

So it is necessary to be fair to the Commission. The Commission also had a system of NGO participation - the largest, most vibrant and contested systems in the United Nations. In that sense, I believe that we must look at the past with serenity to recover the entire critical mass that the Commission contributed to international human rights law and to the edifice of human rights protection. At the same time, we must look critically at the excessive politicisation and selectivity, and the logic of external politics that drove the approach to country resolutions.

And after such reflection, we must learn from the experiences of the Commission and seek to avoid repeating the same mistakes in the Council. The Council will have a great responsibility. It must not only avoid repeating those errors but must seek to duplicate - and exceed - the achievements, virtues and preoccupations of the Commission.

Source: Human Rights Features of Human Rights Documentation Centre (HRDC)