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A New Start or More of the Same?

 

“The promotion and protection of human rights is a bedrock requirement for the realization of the Charter’s vision of a just and peaceful world.”

- UN Secretary General Kofi Annan 

The global campaign for human rights witnessed unprecedented development in the twentieth century, evidenced by the enormous body of international human rights law and standards adopted since the Second World War. The lessons of our past and the natural search for balance, intercultural understanding and multilateral consensus resulted in the creation of the United Nations, now the preeminent international organization responsible for facilitating cooperation in international law, international security, economic development and social equality. Emerging alongside the United Nations were influential non-governmental organizations (NGOs), notably Human Rights Watch and Amnesty International, key architects and protectors in the campaign for human rights. Beginning June 19, 2006, 61 years after the foundation of the United Nation and nearly 60 years since the formation of the United Nations Commission on Human Rights, the world entered a new, yet uncertain chapter in the history of human rights. As the United Nations dissolves the former Commission and ushers in the Human Rights Council, we must question whether such structural reforms will better protect the vulnerable, victimized and oppressed, and how the work of other human rights institutions, namely NGOs, will be impacted by such changes. In this report, we evaluate the United Nations reforms through the lens of international NGOs, academic experts, and United Nations officials, focusing specifically on the work of individuals and organizations operating in Germany.

The Commission

The United Nations Commission on Human Rights was established in 1946 under the United Nations Charter as the primary body for addressing international human rights issues. The Commission, functioning as a subsidiary of the Economic and Social Council (ECOSOC), was an inter-governmental body composed of representatives from 53 states elected for three-year renewable terms. Beginning with 18 members in 1946, the Commission’s membership changed gradually over the latter half of the twentieth century to ensure a more equitable and geographical balance from each of the United Nation’s five regional groups: African, Asia Pacific, Eastern European, Latin American / Caribbean, and the Western Group. Its purpose was to protect minorities, prevent discrimination, and to set and monitor the compliance of standards in the field of human rights.

The Commission undertook special tasks assigned by ECOSOC, including the investigation of allegations concerning human rights violations, and presented studies and recommendations at its request. These tasks were conducted through a set of special procedures, mechanisms by which the Commission authorized the examination, monitoring, and investigation of human rights situations in specific countries or on major themes of human right violations. According to Dr. Wolfgang Heinz of the German Institute for Human Rights, “special procedures served as the eyes and ears of the Commission,” and are regarded with a high level of credibility.

In addition to serving the interests of ECOSOC, the Commission was also the “main forum for non-governmental organizations (NGOs) to raise human rights concerns with states and to lobby for the creation of new [international] standards.” (“A New Chapter for Human Rights,” 2006) NGOs that underwent a formal application process established by ECOSOC and were granted accreditations were permitted to attend the Commission’s annual six-week session in Geneva, where they could present oral arguments and provide written statements to Commission members. 

The Commission has been credited with making an important contribution to the promotion and protection of human rights. Despite its commendations, however, there is a widespread feeling among many states and NGOs that the Commission has not been able to keep pace in a rapidly changing world. The Commission, set up to monitor and prevent human rights violations, failed to condemn or to even scrutinize countries committing gross human rights violations. The annual six-week conferences in Geneva have degenerated into an adversarial exercise in which progress in the protection and promotion of human rights appeared to be a secondary interest. As Antonio José Almeida, Senior Assistant to the Director of Policy & Programmes and International Human Rights Advocacy, has said, “The Commission [was] becoming a forum for defending government records, rather than examining them.” (“A New Chapter for Human Rights,” 2006)

In recent years, the Commission was increasingly criticized by individuals within and outside of the United Nations for its double standards, selectivity in the treatment of country situations, and its failure to address severe human rights violations occurring in many countries. The institutional character of the Commission, marked by excessive politicization, regional alliances and block voting, and the use of procedural devices to prevent debate on proposed action against countries and on controversial issues prevented the body from fulfilling its mandate. 

Another persistent criticism of the Commission was its composition. The election of states with extremely poor human rights records as members of the Commission weakened its credibility. According to Freedom House, an international NGO working to ensure political and economic freedom, less than half of the United Nations membership is presently free in terms of political rights and civil liberties in 2006. And before the Commission was dissolved, six of the eighteen most repressive governments in the world (China, Cuba, Eritrea, Saudi Arabia, Sudan, and Zimbabwe) and nine countries considered “not free” (Bhutan, Egypt, Guinea, Mau¬ritania, Pakistan, Qatar, Russia, Swaziland, and Togo) enjoyed membership in the 53-member Commission, whose only qualification for membership was geographical distribution. (Schaefer, 2006)

A wide range of critics have also cited “politicization” as one of the primary problems within the Commission, claiming that such behavior discredits and diminishes the effectiveness of its work. The concept of politicization is perhaps best articulated by the International Service for Human Rights (ISHR), who describes it as the “political capture or political highjacking by states of the Commission's agenda to defend their own interests.” (“Overview of the 60th session” 2004) In an effort to prevent country resolutions in one of their neighboring states, regional blocks in Africa and Asia have often objected to the “finger-pointing” and “naming and shaming” practices of other states and NGOs, which they claim leads to politicization and an erosion of credibility. The result is that these states minimize the Commission’s access to countries, thus avoiding an effective examination of a country’s human rights record. 

These criticisms and others were enumerated in a 2004 report by the United Nations High-Level Panel on Threats, Challenges and Change, as well as by the General-Secretary Kofi Annan in his 2005 report, “In Larger Freedom: towards development, security and human rights for all.” The General-Secretary identified “declining credibility and lack of professionalism” as the primary defects eroding the value and legitimacy of the Commission.

The Council

In 2005, Kofi Annan proclaimed to the constituent states of the United Nations that “[i]f 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.” (“A New Chapter in Human Rights,” 2006) The Secretary-General proposed that the new Council be elected by the General Assembly by a two-thirds majority vote, and that it be mandated to undertake periodic peer review of states’ human rights obligations. It was through changes in infrastructure and procedure that Annan envisioned a more authoritative, credible human rights organization, one that would correspond to the primacy of human rights as articulated in the Charter of the United Nations. 

The member states of the United Nations passed a resolution in March 2006 formally creating the Human Rights Council. Under the resolution, the new UN human rights body is a subsidiary of the General Assembly, and no longer reports to ECOSOC. It is composed of six fewer members than its predecessor, capped at 47 members elected in a secret ballot by an absolute majority of the General Assembly, based on not only equitable geographic distribution but also the human rights records of individual member states. Unlike the Commission, which met for one six-week term per year, the Council is to meet for a minimum of three sessions totaling no less than ten weeks per year, with the ability to convene additional sessions at the request of any member supported by at least one third of the Council membership. The primary functions of the Council, as outlined in Resolution 60/251, include: the undertaking of a Universal Periodic Review process; the addressing of violations of human rights, particularly gross and systemic violations; recommendations to the General Assembly for the further development of international human rights law; and the promotion of the implementation of human rights. 

While there is no doubt that states could have further strengthened the Council during the reform process, an opinion held not only by dissenting countries like the United States but also by international NGOs like Human Rights Watch, the Council’s new features, including longer and more frequent meetings, the requirement to periodically review all states rather than a few, and a more stringent election process, offer the potential—though not the promise—of restoring legitimacy to the human rights work of the United Nations. A major question remaining is how NGOs will respond to the transition, and how their work will be affected by such structural reforms.

NGOs and the United Nations

Non-governmental organizations have played an active role in the work of the Commission, experiencing a greater level of access to State members and proceedings in the Commission than in any other part of the UN system. Those NGOs receiving accreditation by ECOSOC were able to attend all public sessions of the Commission, make oral statements to Commission members, and to provide reports that were formally circulated with other official UN documents. NGOs were also able to participate in “working groups,” groups of independent human rights experts tasked with developing international human rights standards and researching thematic issues. In addition to these officially recognized activities, more organic practices evolved within the Commission, including the allowance of NGO attendance and participation in negotiations on resolutions, as well as the the organization of parallel events by NGOs for Commission members. NGOs experienced a great amount of informal interaction with government delegations, as evidenced by Amnesty International’s Berlin office, which worked closely with the German government prior to July 19, 2006 to create an agenda for the opening session of the Council. (Interview with Tanja Gey, 2006)

Through their presence in the United Nations, NGOs have been able to highlight some of the most important human rights violations and to lobby effectively for the adoption of resolutions and special procedures mandates. Through fact-finding and monitoring missions, capacity building and training activities, and by acting as a crucial bridge between the UN and the general public, NGOs served as an important mechanism in the UN’s international campaign for human rights. And as Tanja Gey of Amnesty International noted, “NGOs don’t have to go through all the bureaucratic barriers and can often move more quickly than states in responding to events and changing developments.”

Under the provisions of the resolution creating the Human Rights Council, NGO participation shall be based on the “arrangements … and practices observed by the Commission on Human Rights,” so as to ensure their effective contribution.” (UN Resolution 60/251, 2006) This resolution entitles NGOs to the same rights of participation that they had in the Commission, some of which were recorded and codified in ECOSOC Resolution 1996/31 and other decisions taken by the Commission concerning its working methods, including the right to make oral and written statements. Other practices, however, including NGO attendance and participation at negotiations on resolutions, were never formally recorded in a decision or document, and may, as a consequence, be lost in translation. The difficulty will be in determining which aspects of NGO participation count as observed arrangements and practices, and which do not. 

The formation of the Council has caused anxiety about the future role of NGOs in the arena of human rights in the United Nations. While Laura Dolci-Kanaan, NGO Liason for the Office of the High Commissioner for Human Rights (OHCHR) and the organizer for NGO participation in the first session of the Council, assures that “we start NGO participation in terms of where we left it,” she confesses that preservation will be accompanied by adaptation, and that the impact of such changes are not yet apparent. As a result, policy experts like Dr. Wolfgang Heinz, when asked about the future role of NGOs, are left wondering, “Who knows what is going to happen?”

The Response of NGOs Operating in Germany

In preparing this report, we interviewed three international NGOs with operational offices in Germany (Amnesty International, Human Rights Watch, and the International Service for Human Rights), a government-funded national human rights institution (German Institute for Human Rights), a professor of law and former member of the United Nations Human Rights Committee (Christian Tomuschat), the Secretary General of the German United Nations Association (Dr. Beate Wagner), a Deputy Representative of the United Nations High Commissioner for Refugees (Machiel Salomons), and the NGO Liason for the Office of the High Commissioner for Human Rights (Laura Dolci-Kanaan). Each interview provided us with a unique perspective on the restructuring of the human rights in the United Nations and enabled us to explore how such changes will affect the role of major international NGOs operating in Germany. 

According to German Human Rights Watch Director Marianne Heuwagen, Human Rights Watch intensely helped to prepare the United Nations for the transition from the Commission to the Council. By forming a coalition with Amnesty International and Oxfam, Human Rights Watch was able to build a stronger, more unified voice and exert greater influence over the construction of the Council. As Heuwagen notes, such partnerships help to prevent contradictions between three of the most influential international NGOs, and to effect policy change on a global level. “I do think that we were extremely helpful in setting up the Human Rights Council,” Heuwagen explains, “and that it would never have come about without the help of the NGOs.”

In addition to working within the international coalition, Amnesty International collaborated directly with German politicians to set an agenda for the opening session of the Human Rights Council on June 19, 2006. Tanja Gey, working at the Berlin office, explained that Amnesty International in Germany has a “working relationship with many politicians connected to national and international human rights issues,” and interacts with politicians on a day-to-day basis. She added that Dr. Gunter Pleuger, German Ambassador to the United Nations, set up a meeting with Amnesty International upon his appointment to the United Nations in 2002, and that they maintain a functional relationship with his office to this day. 

Interviews with the three influential international NGOs reveal that the Human Rights Council has been received with guarded optimism. While each of the NGOs had expected a “better deal” with stricter reforms, including the two-thirds majority vote by the General Assembly and tighter restrictions on the size of the Council, the NGOs generally agree that some reform is better than nothing at all. (Interview with Wolfgang Heinz, 2006) “We took what we could get,” said Marianne Heuwagen of Human Rights Watch. “The Council is an improvement, but it is certainly not a Virgin Mary.” Tanja Gey of Amnesty International agreed that the structural reforms should not be seen as a vaccine for the problems endemic to the Commission. The International Service for Human Rights contended that while states could have strengthened the Council further in the reform process, the present system “holds the promise of being more effective and more credible if states are willing to make it so.” (“A New Chapter for Human Rights,” 2006)

Both Amnesty International and Human Rights Watch emphasized the potential of Universal Peer Review (UPR), a new procedure that, according to the Human Rights Council, is a “groundbreaking mechanism” by which the Council can scrutinize the human rights records of all countries. (“Human Rights Council Begins to Take Shape as First Session Convenes in Geneva,” 2006) While some consider this novel procedure grounds for celebration, both Amnesty International and Human Rights Watch voiced reservation about whether UPR, which remains largely undefined, will translate into effective policy. “The decision to adopt the Universal Peer Review Process was to decide on a jar that has yet to be filled with water,” said Marianne Heuwagen.  The “water,” she emphasizes, must be not only palatable but also transparent and reliable. Tanja Gey explained that Amnesty International hopes that the potency of UPR will not be diluted by Council members with a history of human rights violations, and that the member-states agree on a procedure that “flexibly combines the formality and transparency of a … working group with the flexibility and responsiveness of informal consultations with groups like NGOs.”

The NGOs, as well as the other interviewed parties, expressed reservations about the limited changes brought about by the new election process by the General Assembly. In the first election for the members of the Council in May 2006, the General Assembly voted onto the Council states notorious for their human rights violations, including China, Cuba, Pakistan, and Saudi Arabia. The legitimacy of the Commission had been criticized in the past for its questionable membership, so how optimistic should one be about the composition of the Council? 

The International Service for Human Rights claimed that the countries elected with known human rights violations “will likely continue to have a destructive presence and contribute to the general frustration and loss of dignity of the UN.” (Interview with Martin Lessenthin, 2006) Amnesty International and Human Rights Watch expressed clear frustration over the election but tempered their criticism with the acknowledgment that the United Nations is after all a political body, and that they must expect change to come incrementally. Machiel Salomons of the United Nations High Commissioner for Refugees stated that the reform measures were inadequate, expressing an opinion reminiscent of that of the United States, who opposed the Council’s creation. He noted, however, that “You have to be realistic, to take it step by step. One cannot make a dramatic change overnight.” Politics are necessarily a part of the structure of the United Nations, and, as Dr. Wolfgang Heinz from the German Institute for Human Rights (GIHR) explains, “If 191 countries elect the Council, many of which are not democracies, it should not be surprising that some of these violators made it onto the Council.”

Both Marianne Heuwagenm and Dr. Wolfgang Heinz acknowledged that the new election procedures were not entirely without benefit. “There is a higher barrier than before to elect state representatives to the Council,” stated Dr. Heinz. Some countries with a history of human rights violations that sat on the former Commission, like Zimbabwe, did not even apply for membership on the Council. Other countries, including Iran and Venezuela, ran for election but were not chosen by the General Assembly. While it is telling that the new election process of absolute majority from the General Assembly is certainly not a panacea, it is nonetheless an improvement compared to the system of the past. 

Conclusion

On April 7, 2005, United Nations Secretary-General Kofi Annan addressed the 61st session of the Commission on Human Rights in Geneva, stating that “We have reached a point at which the Commission’s declining credibility has cast a shadow on the reputation of the United Nations system as a whole, and where piecemeal reforms will not be enough.” While it was the intention of the United Nations to bring comprehensive reform to its human rights organ, it is still too early to determine whether or not such restructuring will bring anything more than piecemeal changes to its work. The Council is empowered with new functions and tools, but infrastructure is only part of the problem. The question now remains whether states will show the required political will to change their culture of defending human rights. Will this be a new start, or just more of the same? 

 

References

 

Literature:

“A New Chapter for Human Rights.” International Service for Human Rights. Geneva: International Service for Human Rights and Friedrich Elbert Stiftung, 2006.

Almeida, Antonio José. “Backgrounder on the Reform of the United Nations Commission on Human Rights.” Montreal: International Center for Human Rights and Democractic Development, 2005. Available online at: www.dd-rd.ca/english/commdoc/publications/intHRadvocacy/UNHCRreform.pdf

ECOSOC Resolution 5 (I). United Nations Economic and Social Council (ECOSOC). 16 February 1946. Available online at: http://daccess-ods.un.org/access.nsf/Get?Open&DS=E/RES/5(I)&Lang=E&Area=Resolution. 

General Assembly Resolution 60/251. Human Rights Council. 03 April 2006. Available online at: http://www.ohchr.org/english/press/hrc/kit/garesolution.pdf.

“Human Rights Council begins to take shape as first session convenes in Geneva.” Human Rights Council. Press Release. Geneva, 16 June 2006. Available online at http://www.unhchr.ch/huricane/huricane.nsf/view01/10E8BAE10151DB09C125718E00363A94?opendocument. 

“In larger freedom: towards development, security and human rights for all.” Report of the General Secretary, 59th Session. 21 March 2005.

“New human rights body opens its doors,” Swiss Info, 19 June 2006. Available online at: http://www.swissinfo.org/eng/front/detail/New_human_rights_body_opens_its_doors.html?siteSect=105&sid=6822122&cKey=1150696964000. 

“Overview of the 60th Session.” International Service for Human Rights. No. 62. Geneva, 2004. Available online at: http://www.ishr.ch/About%20UN/Reports%20and%20Analysis/CHR60/CHR60-Reports.htm. 

Prove, Peter. “Re-commissioning the Commission on Human Rights: UN Reform and UN Human Rights Architecture.” Lutheran World Federation. Available online at www.lutheranworld.org/What_We_Do/OIAHR/Issues_Events/UN_Reform-Human_Rights.pdf.

Schaefer, Brett. “The U.N. Human Rights Council Is Not Enough: Time for a New Approach to Human Rights.” Backgrounder #1910. 08 February 2006. Available online at: http://www.heritage.org/Research/InternationalOrganizations/bg1910.cfm#_ftnref13. 

“Speech of the Chinese Ambassador Wang Guangya.” Third Committee of the 60th Session of the United Nations General Assembly. 25 October 2005. Available online at: http://www.chinaembassy.lt/eng/xwdt/t218682.htm. 

“Statement by United States Ambassador Richard S. Williamson.” Special Sitting, Commission on Human Rights. Geneva. 24 March 2004. Available online at: http://geneva.usmission.gov/humanrights/2004/statements/0324SpecialSitting.htm. 

United Nations Document A/57/387. 09 September 2002. Available online at: http://daccess-ods.un.org/access.nsf/Get?OpenAgent&DS=A/57/387&Lang=E.

Williams, Frances. “Annan urges new human rights council to break with past and work impartially.” Financial Times (London). 20 June 2006. 

Interviews:

Dolci-Kanaan, Laura. 20 June 2006.

(NGO Liaison for the Office of the High Commissioner for Human Rights OHCHR )

Gey, Tanja. 21 June 2006.(Amnesty International, Germany)

Heinz, Wolfgang. 22 June 2006.

(German Institute for Human Rights)

Heuwagen, Marianne. 22 June 2006.

(Director, Human Rights Watch, Germany)

Lessenthin, Martin. 27 June 2006.

(Spokesman of the Board of the Internationale Gesellschaft für Menschenrechte) 

Solomons, Machiel. 27 June 2006.

(Deputy Representative of the United Nations High Commissioner for Refugees, UNHCR, Federal Republic of Germany)

Tomuschat, Christian. 26 June 2006.

(Professor of Law at the Humboldt University, Berlin)

Wagner, Beate. 28 June 2006

(Sectetary General of the German United Nations Association)

 

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