Addendum 1
Human Rights Council
Explanatory note by the Secretary-General*
The Secretary-General’s proposal
1. The establishment of a Human Rights Council would reflect in concrete terms
the increasing importance being placed on human rights in our collective rhetoric.
The upgrading of the Commission on Human Rights into a full-fledged Council
would raise human rights to the priority accorded to it in the Charter of the United
Nations. Such a structure would offer architectural and conceptual clarity, since the
United Nations already has Councils that deal with two other main purposes —
security and development.
2. The Commission on Human Rights in its current form has some notable
strengths and a proud history, but its ability to perform its tasks has been overtaken
by new needs and undermined by the politicization of its sessions and the selectivity
of its work. A new Human Rights Council would help serve to overcome some
growing problems — of perception and in substance — associated with the Commission, allowing for thorough reassessment of the effectiveness of United
Nations intergovernmental machinery in addressing human rights concerns.
3. The Secretary-General proposed the establishment of a Human Rights Council
in his March 2005 report entitled “In larger freedom: towards development, security
and human rights for all” (A/59/2005). The proposal reads:
“If the United Nations is to meet the expectations of men and women
everywhere — and indeed, if the Organization is to take the cause of human
rights as seriously as those of security and development, then Member States
should agree to replace the Commission on Human Rights with a smaller
standing Human Rights Council. Member States would need to decide if they
want the Human Rights Council to be a principal organ of the United Nations
or a subsidiary body of the General Assembly, but in either case its members
would be elected directly by the General Assembly by a two-thirds majority of
members present and voting. The creation of the Council would accord human
rights a more authoritative position, corresponding to the primacy of human
rights in the Charter of the United Nations. Member States should determine
the composition of the Council and the term of office of its members. Those
elected to the Council should undertake to abide by the highest human rights
standards.” (A/59/2005, para. 182)
4. The Human Rights Council would be a standing body, able to meet regularly
and at any time to deal with imminent crises and allow for timely and in-depth
consideration of human rights issues. Moving human rights discussions beyond the
politically charged six-week session would also allow more time for substantive
follow-up on the implementation of decisions and resolutions. Being elected by the
entire membership of the General Assembly would make members more
accountable and the body more representative. And being elected directly by the
General Assembly — the principal United Nations legislative body — would also
have greater authority than the Commission, which is a subsidiary body of the
Economic and Social Council. Indeed, according to the Charter, responsibility for
discharging the functions under the Economic and Social Council, including the
promotion of human rights, is ultimately vested in the General Assembly. A smaller
membership would allow the Human Rights Council to have more focused debate
and discussions.
5. The Secretary-General believes that the Human Rights Council should be
located in Geneva, allowing it to continue to work in close cooperation with the
Office of the United Nations High Commissioner for Human Rights. The World
Food Council (1974-1995) represents a precedent for a standing Council established
by the General Assembly sitting outside New York. Similarly, the International
Court of Justice at the Hague represents a principal Charter body located outside
New York. While based in Geneva, as a standing body the Council would have the
flexibility to “enhance” its presence in New York. Options would include holding
special sessions in New York or having specific subcomponents based in New York
so as to better interface with the General Assembly, the Security Council and the
Economic and Social Council.
6. The Secretary-General further elaborated on a proposed new key peer review
function for the Human Rights Council in a speech to the Commission on Human
Rights on 7 April 2005:
“It should have an explicitly defined function as a chamber of peer review. Its
main task would be to evaluate the fulfilment by all States of all their human
rights obligations. This would give concrete expression to the principle that
human rights are universal and indivisible. Equal attention will have to be
given to civil, political, economic, social and cultural rights, as well as the
right to development. And it should be equipped to give technical assistance to
States and policy advice to States and United Nations bodies alike. Under such
a system, every Member State could come up for review on a periodic basis.
Any such rotation should not, however, impede the Council from dealing with
any massive and gross violations that might occur. Indeed, the Council will
have to be able to bring urgent crises to the attention of the world community.”
7. The peer review mechanism would complement but would not replace
reporting procedures under human rights treaties. The latter arise from legal
commitments and involve close scrutiny of law, regulations and practice with regard
to specific provisions of those treaties by independent expert panels. They result in
specific and authoritative recommendations for action. Peer review would be a
process whereby States voluntarily enter into discussion regarding human rights
issues in their respective countries, and would be based on the obligations and
responsibilities to promote and protect those rights arising under the Charger and as
given expression in the Universal Declaration of Human Rights. Implementation of
findings should be developed as a cooperative venture, with assistance given to
States in developing their capacities.
8. Crucial to peer review is the notion of universal scrutiny, that is, that the
performance of all Member States in regard to all human rights commitments should
be subject to assessment by other States. The peer review would help avoid, to the
extent possible, the politicization and selectivity that are hallmarks of the
Commission’s existing system. It should touch upon the entire spectrum of human
rights, namely, civil, political, economic, social and cultural rights. The Human
Rights Council will need to ensure that it develops a system of peer review that is
fair, transparent and workable, whereby States are reviewed against the same
criteria. A fair system will require agreement on the quality and quantity of
information used as the reference point for the review. In that regard, the Office of
the High Commissioner could play a central role in compiling such information and
ensuring a comprehensive and balanced approach to all human rights. The findings
of the peer reviews of the Human Rights Council would help the international
community better provide technical assistance and policy advice. Furthermore, it
would help keep elected members accountable for their human rights commitments.
Issues to be discussed before the September 2005 summit
9. Member States will need to come to agreement on a number of issues in
advance of the summit to be held in September 2005. Consultations with the High
Commissioner would naturally be part of the process and she is ready to assist.
Specifically, the Secretary-General suggests the need for agreement regarding the
Human Rights Council on a number of issues as set out below.
Mandate and function
10. In addition to existing functions and responsibilities of the Commission under
Economic and Social Council resolutions 1235 (XLII) and 1503 (XLVIII), the Human Rights Council would consider the situation of all human rights in all
countries based on the above peer review system. Until being thoroughly reviewed
by the Human Rights Council upon its establishment, the thematic and countryspecific
procedure mandates, as well as the intergovernmental working groups and
the Subcommission, would be requested to report to the Human Rights Council. The
Human Rights Council would reconsider and refine or amend those according to its
own terms of reference, together with its agenda of work and working methods. The
proposed Human Rights Council is only one component of the United Nations
human rights system, which includes the mandate of the High Commissioner,
secretariat functions and the treaty bodies. In determining the mandate and function
of the Human Rights Council, consideration should be given to functions that are
best performed at an intergovernmental level, taking into account complementarity
with other bodies and bearing in mind the Commission’s experience. The Human
Rights Council should have the authority to recommend policy measures to other
organs of the United Nations that can help in the process of implementation.
11. In addition to the proposed peer review outlined above, the Human Rights
Council should also fulfil the following functions:
Member States should be able to come together and take action when serious
human rights situations develop. The Commission is able to do this by having
the option to adopt specific country resolutions. While this capacity has
attained an unhealthy degree of politicization — which the proposed peer
review function of the Human Rights Council should address — the ability to
address serious situations must be retained and revived. In addition, the
Commission has the capacity to meet in extraordinary session if a majority of
members agree; this capacity should be retained by the Human Rights Council,
the envisioned format of which would facilitate consideration of urgent
situations outside the framework of ordinary sessions. Furthermore, the High
Commissioner would benefit from being able to call for action and support
from a United Nations standing body with the authority of a full-fledged
Council. A forum for dialogue among Member States and involving civil
society on human rights issues, should be preserved. The dialogue would allow
for constructive engagement on areas of disagreement and creative responses
to deal with new and emerging issues, especially human rights problems for
which existing international standards are ambiguous. The role of NGOs is
crucial to providing policy inputs and views from the field to Member States.
Similarly, the increasing prominence and activism of both national institutions
and NGOs has elevated their involvement in the human rights debate to centre
stage.
The proposed Human Rights Council should play a pivotal role in overseeing
and contributing to the interpretation and development of international human
rights law. International law and standards are central to the United Nations
system for the protection of human rights; indeed, the body of international
human rights norms developed to date by the Commission is perhaps its
greatest legacy. As a standing body, the Human Rights Council might find
ways to overcome the delays currently faced by the Commission regarding
some standard-setting activities. The establishment of a Human Rights Council
would also reinforce the critical work of the treaty body system, which has
contributed significantly to the development of international law over the past 20 years and could assist in the process of streamlining and strengthening the
system to better carry out its mandate.
Composition
12. Instead of being elected by the Economic and Social Council, the membership
of the Human Rights Council would be elected by a two-thirds vote of the General
Assembly — which would be similar to the election process for Charter bodies. This
would reflect the importance accorded to the body. Universality in voting would
allow the body to be more accountable to the full membership of the Organization.
Member States will need to decide on the length of terms, how Human Rights
Council members would be elected and the rotation of members. If Member States
choose to elect Human Rights Council members on a regional basis, all regional
groups should be represented in proportion to their representation in the United
Nations.
Size
13. The Commission on Human Rights currently has 53 members, only one less
than the membership of the Economic and Social Council, which elects Commission
members. Originally numbering 18 members, the Commission has grown
dramatically over the years. A smaller membership on the Human Rights Council
would allow more focused discussion and debate. Elevating the status of the
Commission into a Council would increase the possibility for States to serve on one
of the three United Nations Councils.
Principal or subsidiary body
14. There are two options for creating the Human Rights Council, as a principal
organ or as a subsidiary body of the General Assembly. Establishing the Human
Rights Council as a principal body of the United Nations would allow it to stand as
a peer alongside both the Security Council and the Economic and Social Council
and would require an amendment to the Charter. Establishing the Council as a
subsidiary body of the General Assembly would not require an amendment to the
Charter. In either case, the high standard of Charter bodies and “important matters”
of a two-thirds majority vote should be retained.
Decision to be taken
15. Upon consideration of the above issues, Member States could agree to endorse,
in principle, the establishment of a Human Rights Council in the final declaration of
the September 2005 summit. Draft language provided in the report of the Secretary-
General reads:
“Agree to replace the Commission on Human Rights with a smaller
standing Human Rights Council, as a principal organ of the United Nations or
a subsidiary body of the General Assembly, whose members would be elected
directly by the General Assembly by a two-thirds majority of members present
and voting.” (A/59/2005, annex, para. 8 (e))
Issues to be discussed after the September 2005 summit
16. Further work on how the Human Rights Council would fulfil the outlined
functions above, as well as the details regarding size, composition and
establishment, would be dealt with in the post-summit phase. Indeed, the fate of
many of the Commission’s existing functions, procedures and working groups
would be left to the Council to endorse, renew or consider obsolete. The special
procedures and NGO engagement are two aspects of the Commission that should
continue with the Human Rights Council.
17. Another set of issues requiring further elaboration concerns the role and
mandate of the Human Rights Council vis-à-vis the other components of the United
Nations human rights system, in particular the Office of the High Commissioner,
other United Nations agencies and programmes dealing with human rights, the
treaty monitoring bodies, the General Assembly, the Security Council, the Economic
and Social Council and the proposed new Peacebuilding Commission. The creation
of the Human Rights Council would reinforce and strengthen the human rights work
of those other components. For example, the Human Rights Council would provide
an opportunity to rationalize the agenda of the Third Committee of the General
Assembly with the work of the Human Rights Council, as well as to strengthen the
General Assembly’s ability to analyse and draw attention to continuing gaps in the
implementation and mainstreaming of human rights throughout the United Nations
system. Similarly, the Council could assist in the establishment, support and
generation of contributions for various voluntary funds, especially to assist
developing countries.
Note:
* Initially transmitted by the Secretary-General to the President of the General Assembly on
14 April 2005, with the request that it be brought to the attention of the members of the General Assembly. [Back to text]
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