The Committee’s roundtable hearing was divided into two sessions. The first session was entitled The Commission Today: Achievements, Shortcomings and the Need for Reform. In the first session the Committee was interested to learn which elements of the Commission already work well; suggested areas for improvement; and to what extent reform is necessary. The second session was entitled The Commission of the Future: The Current Reform Agenda and the Proposed Human Rights Council. During the second session, the Committee wished to examine what form the Commission might take in the future, if member states should vote at the September summit to replace the Commission with a Human Rights Council. The Committee wanted to know how the new Council might function; what support there is for the proposal as it stands; and whether changing the structure of the Commission can deliver the desired changes.

While there was some overlap of the key issues across the two sessions, this basic structure helped to keep discussions focused.

This chapter highlights some of the main themes that emerged from both sessions.

Session 1 - The Commission Today: Achievements, Shortcomings and the Need for Reform

Achievements

In his report In Larger Freedom the UN Secretary-General states that the Commission on Human Rights has had a number of accomplishments, including:

• giving the international community a universal human rights framework, comprising the Universal Declaration of Human Rights, the two International Covenants and core human rights treaties;
• through its annual session, drawing public attention to a wide range of human rights issues and debates and providing a forum for the development of human rights policy;
• close engagement with hundreds of civil society organisations, providing an opportunity for working with civil society that does not exist elsewhere; and
• establishing a system of independent and expert special procedures to observe and analyse human rights compliance.²

At the hearing, participants addressed these positive aspects of the Commission. In the context of the Commission’s successes, they also emphasised the value of peer review mechanisms and the input that Australia has had over the years.

Standard Setting

The Commission has been instrumental in codifying and universalising international human rights standards. For the first twenty years, its efforts were concentrated on developing the International Bill of Rights.³ Since then, the Commission has developed human rights treaties relating, inter alia, to civil and political rights, economic and social and cultural rights, the elimination of racial discrimination, torture, and the rights of the child. All states that accept these standards are obliged to implement the rights they entail and to report regularly to the treaty bodies (i.e. UN committees) set up to monitor their compliance.⁴

At the hearing, a number of witnesses endorsed the Commission’s standard setting function. The Human Rights and Equal Opportunity Commission (HREOC) stated:

Over the last four decades, its standard setting has been remarkable in terms of establishing a set of international norms and it continues to develop norms.⁵

Human Rights Forum

Few would dispute that the Commission is the world’s foremost human rights forum. One participant at the hearing described it as a ‘fantastic bazaar.’⁶ Currently over 3, 000 delegates from 53 member states and observer states, including hundreds of NGOs, converge on Geneva to participate in the six-week annual session held during March and April.⁷

Each year, the Commission adopts about 100 resolutions, decisions and Chairperson’s statements on a broad spectrum of human rights issues that span all the world’s regions.⁸

In addition, there are a large number of related activities that occur outside the conference room. In 2004, more than 600 side events took place, with seminars, debates and presentations enabling discussion between NGOs, experts, national human rights commissioners, national delegates and UN officials on a wide range of issues.⁹

Much informal contact and networking is made possible by the fact that so many of the organisations and individuals interested and involved in the field of human rights gather in Geneva for the conference.

Civil Society Participation

Many roundtable witnesses spoke about the value that civil society groups bring to the Commission.¹⁰ Mr Keir MacDonald, a student intern attached to the Australian permanent mission in Geneva during this year’s session, reported that he was impressed with the high level of interaction between states and civil society representatives:

The delegations were very open and accessible to the NGOs and civil society.¹¹

There was some concern that if the Commission is transformed into a Council, the level and status of NGO involvement might be compromised. The UNHCR representative said:

If in the reform process, as other speakers have already said, we were to lose the perspectives that come from the technical expertise of NGOs…or the operational grand truth-if I may put it that way- that they can bring to the forum, that really would be a big mistake.¹²

HREOC added that national human rights institutions are increasingly playing a significant role in the Commission and this should be maintained:

From our point of view, we think it would be a pity if any tinkering with the system meant that the role of national human rights institutions was reduced. They do have a different perspective from NGOs on many issues, and it is a perspective that I think is worth putting.¹³

Noting the ever increasing numbers of NGOs and national human rights institutions wishing to take part at the Commission, the Committee wondered whether that process is sustainable and if the Commission can continue to accommodate the sheer numbers of people wishing to speak.¹⁴

Rights Australia and HREOC explained that there were accreditation processes in place respectively for monitoring the membership of NGOs and national human rights institutions.¹⁵

Rights Australia commented that there were some issues surrounding the NGO accreditation process through ECOSOC, namely whether or not it is appropriate for GONGOs (Government sponsored NGOs) to participate in the Commission.¹⁶

Consultation in Australia

The Committee also wished to learn what consultation Australian NGOs had had on UN reform matters with DFAT in the lead up to the September summit. ACFID explained that the Department had arranged a day-long consultation with invited NGOs on 19 August 2005. The session would focus on a range of human rights issues, including human rights reform.¹⁹

Special Procedures

Special procedures is the term given to an independent expert or group of individuals mandated by the Commission to examine, monitor, advise and publicly report at the annual session on a given human rights situation. The work might involve undertaking fact-finding missions, conducting studies, providing advice on technical cooperation, responding to individual complaints or engaging in general promotional activities. The OHCHR supports the mandates with personnel and logistical assistance.²⁰

Nearly all of the roundtable participants acknowledged the benefit that special procedures bring to the Commission. The Australian Baha’i Community told the Committee:

They play a very important role in alerting the world to particular crises and aspects of human rights abuse and the like.²¹

The ICJ, HREOC, UNHCR, Amnesty and ACFID concurred that the special procedures were an important element of the present system, but noted that ‘they operate on a shoe-string’ and require additional resources for them to operate more effectively.²² It was also suggested that there needs to be a greater monitoring of special procedures to increase their accountability, particularly in respect of recruiting experts.²³

Peer Review

Several participants described the strength of the Commission’s peer review mechanisms, not just the treaty bodies that scrutinise those states that have become parties to the various human rights treaties – but also ‘the power of embarrassment’ that can be extended to all states whose human rights records are called into question at the Commission, irrespective of whether or not they are signatories to the treaties.

Professor Joseph of the Castan Centre for Human Rights Law agreed with Mr Dowd and Dr Mathews that the ‘naming and shaming’ effect should not be underestimated:

Countries might not react immediately and it can take years and years, but no country likes [embarrassment].²⁴

Australia and the Commission

Australia’s history of involvement with the Commission goes back to the beginning. Australia was one of the first members to help draft the Universal Declaration of Human Rights and has served frequently on the Commission (1947-56, 1978-83, 1985-87, 1991-96, 2003-05).²⁵

In the current term of membership (2003-2005), Australia has been on the Expanded Bureau both years. As has already been noted, in 2004, for the first time Australia held the Chair when Ambassador Mike Smith, Australia’s Permanent Representative to the UN in Geneva was elected as President of the Commission.

In the 2003-2004 DFAT Annual Report, the Department states that at the 60 th session, the Chair:

…set new standards in efficiency for the Commission, enabling a more disciplined and productive session.²⁶

Ambassador Mike Smith summarised his main achievement,

…for the first time in 3 years CHR complete[d] its full agenda without having to either cluster items or reduce speaking times in the course of the meeting.²⁷

At the hearing, Rights Australia acknowledged the contributions that Australia has made to the Commission:

I think it would be good just to acknowledge the quality of our representation in Geneva. Under Ambassador Mike Smith most recently, but over many years, we have had some very good people there.²⁸

The Australian Baha’i community echoed this sentiment:

Australia in the past has played a role that we can all be proud of at these moments in the history of the UN. I would strongly urge Australia to play such a role again.²⁹

Shortcomings

In his report, In Larger Freedom, the UN Secretary-General states that, despite its strengths, the Commission’s capacity to perform its tasks has been overtaken by new needs and undermined by the politicisation of its sessions and the selectivity of its work. In his view,

States have sought membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticise others.³⁰

From his experience as Chair in 2004, Ambassador Mike Smith remarked on the following aspects of the Commission as negative ones. He said the Commission is:

• preoccupied with the politics of issues rather than the substance;
• inconsistent in what it addresses and does not address (some country situations are repeatedly debated whilst others are ignored);
• inconsiderate in its treatment of speakers; and
• tolerant of a level of invective and verbal intimidation not seen anywhere else in the UN system.³¹

Politicisation

Participants touched on another political issue (and this was previously raised by the Committee in its 2001 report),³² namely states’ use of “no action motions” to prevent debate on human rights issues at the Commission.³³

Mr Keir Macdonald emphasised that:

The willingness of countries to block discussion on certain issues is an area that definitely needs to be addressed.³⁴

A further criticism levelled at the Commission concerns the agenda which allows for lengthy political debate on certain country situations, Israel-Palestine under Item 8 and any others under Item 9. Rights Australia observed:

One of the big disappointments at the Commission is the enormous amount of time spent debating issues that are completely unresolvable or are going to be resolved somewhere other than in the Commission. The Palestine situation and the United States versus Cuba are two examples.³⁵

On the issue of ‘politicisation’; it is perhaps worth bearing in mind the words of the late High Commissioner for Human Rights, Sergio Viera de Mello, in his closing remarks at the 59 th session of the Commission:

Most of the people in this room work for governments or seek to affect the actions of governments. That is politics. For some to accuse others of being political is a bit like fish criticising one another for being wet. It has become a way to express disapproval without really saying what is on our mind. The Commission could do with plainer speaking. This, rather than charges of politicisation, will truly help us get beyond politics to the strengthening of human rights in all countries.³⁶

Need for Reform

At the beginning of the second session, HREOC stated:

…one wonders, whether you really need to pull down the existing structure or whether it is more a question of looking at how you can improve what you have by extra resources to special procedures, some change of internal rating mechanisms and so on.³⁷

Mr Keir Macdonald also advocated retaining the Commission, albeit with changes to the voting systems and membership.³⁸

Mr Brandt of the UNIC told the Committee that there needs to be a greater focus on the implementation of human rights to mitigate,

The gap between what we promise and what we in the international community are able to and actually deliver.³⁹

Session 2 - The Commission of the Future: The Current Reform Agenda and the Proposed Human Rights Council

This section of the report concentrates on two central concerns of many participants at the hearing, the issues of voting systems and membership, and implementation. It finishes with some general concluding remarks on the current reform agenda and Human Rights Council proposal.

Membership

The Commission currently has 53 serving member states, elected through ECOSOC and filled according to the following regional quotas: Africa (15), Asia-Pacific (12), Latin American/Caribbean (11), Western Europe (10) and Eastern Europe (5).⁴⁰

According to Freedom House about 14 of the 53 members are among the countries that Freedom House classes as Not Free, meaning a systematic suppression of democratic rights and violations of human rights. Another 17 countries are classified Partly Free in which some democratic freedoms prevail. By contrast, 22 counties have attained a Free designation. Of the 14 Not Free countries, 6 are given the lowest rating possible.⁴¹

Noting that the election of certain states to the Commission has been a source of international tension, the predecessor report to In Larger Freedom, the High-Level Panel report, recommended that membership of the Commission be expanded to universal membership:

[because it] would underscore that all members are committed by the Charter to the promotion of human rights and might help to focus attention back on substantive issues rather than who is debating and voting on them.⁴²

By contrast In Larger Freedom recommends that states demonstrate their commitment to high human rights standards by changing the current selection process through ECOSOC to election by a two-thirds majority vote of the General Assembly. Those in favour of this voting system argue that it would be more difficult for the worst human rights violators to get a seat on the Commission and, …would allow the body to be more accountable to the full membership of the organisation.⁴³

At the hearing several participants put forward the case for universal membership. Amnesty stated:

We see that the strength of a council or commission is to have everyone around the table, inside the tent, if you like. We must remember that every state’s human rights record is up for scrutiny.⁴⁴

Mr Keir Macdonald added:

You have your Chinas, your Sudans there. They take active participation. They sit there and listen. They attend all the meetings. They have that involvement and whether they sign on to treaties or not, are there listening and the word gets back to their governments.⁴⁵

HREOC said that it too sees a number of arguments in favour of universality. Repeating a comment of Ambassador Smith’s, HREOC informed the Committee that non-member states attend the Commission in an observer capacity anyway, so:

…why draw an artificial line between some of the members and others.⁴⁶

Some witnesses expressed concern at the practicalities of managing a Commission if there were to be universal membership:

…decision making will be a real problem.⁴⁷

Dr Mathews and others, including the ICJ, advocate that there should be minimum criteria set for eligibility to election to the Council. They believe if it is to be taken seriously, its members should have at least ratified the international human rights treaties.⁴⁸

The Australian Baha’i Community implied that -selection criteria aside- the greatest problems relate to members’ lack of compliance with the international standards. Ms Scrine said, if members of a future council are shown through peer review to be serious violators of human rights, they should not be allowed to remain on the Commission to act as moral arbiter.⁵²

The Committee noted all these points of view. However, it seems that, as minimum standards, both ratification and compliance have subjective components which require further consideration if selection criteria are to be introduced. For example, is it wise to potentially exclude some of the world’s most populous and/or powerful nations like China because they have not signed a treaty and/or have expressed various reservations to them?⁵³ Similarly, how is compliance constituted? As Rights Australia says:

There would be people who would argue that Australia should not be a member or the United States should not be a member because we do not comply with all of the treaties; we are not amongst that. I think we aspire to high standards and so consequently should be part of the processes.⁵⁴

A Middle Road

Mr Keir Macdonald suggested that support might be garnered from states for a smaller standing body to co-exist with and complement the functions of the present Commission:

…in the vicinity of the Security Council size, maybe 18 states, mobile and easy to sit in action and see the implementation of these resolutions that are passed at CHR and that [in the case of] special crises either the High Commissioner or the Security Council can draw their attention to the specific or urgent crises.⁵⁵

HREOC told the Committee that the High Level Panel report actually proposed something along those lines in its recommendation that the Commission be supported in its work by an advisory council or panel:⁵⁶

It is not quite the same sort of thing, but you would have a panel of 15 people, perhaps as advisors rather than decision makers, who would have a function of investigating urgent matters…and would be another adjunct to special procedures.⁵⁷

To some extent, the Sub-Commission on the Promotion and Protection of Human Rights, as the Commission’s main subsidiary organ, already performs these extra functions. It too is comprised of experts rather than professional diplomats and distinguishes itself from the Commission as a “think tank” that considers contemporary issues such as,

the fight against extreme poverty; human rights and bioethics; and terrorism and counter-terrorism.⁵⁸

At the hearing, Professor Joseph raised concerns as to where such a new body would leave the Sub-Commission. She advocated that the Sub-Commission should have a successor or be maintained. She noted that it has played an important role in bringing important issues that fall outside the treaties to the Commission’s attention.⁵⁹

Implementation

The Commission regularly requests that the OHCHR provide advisory and technical assistance on human rights matters to governments, including:

• human rights seminars;
• national and regional training courses and workshops;
• fellowships and scholarships; and
• activities aimed at strengthening national capacities for the promotion and protection of human rights.⁶⁰

ACFID stated that the main weakness of the current Commission is the difficulty in implementing the international standards at its disposal:

We have standards. We have investigated human rights violations. We have heard from special rapporteurs as to human rights concerns. And yet, as [Rights Australia] said before in regard to the urgency with which the Commission acts, we come to a grinding halt.

When we try to look at what it is that a Commission could be doing to implement those standards and ensure the protection of human rights, we really have to look at the mechanisms and the relationships that a Commission or a Council on Human Rights has with the wider UN network.⁶¹

Resources

ACFID drew the Committee’s attention to the Plan of Action report which the OHCHR released in May this year.

The Plan of Action was requested by the Secretary-General in the human rights section of In Larger Freedom. The report presents a strategic vision for the future direction of the OHCHR and focuses on a range of “implementation gaps”. One of the report’s five priorities is the need for greater country engagement:

Though an expansion of geographic desks; increased deployment of human rights staff to countries and regions; the establishment of standing capacities for rapid deployment; investigations; field support; human rights capacity building; and work on transitional justice and the rule of law.⁶²

ACFID, the Australian Bahai Community and UNHCR all endorsed the High Commissioner’s recommendation that it develop a more significant operational field presence to follow through on the Commission’s recommendations.⁶³

Mr Dowd noted that section 101 of the draft outcome document calls for a doubling of regular budget resources over the next five years to fund more staff recruitment and support closer cooperation with all relevant UN bodies. He informed the Committee that many of the other human rights bodies are also under-resourced and competing for the same limited funds.⁶⁴

The Committee’s Views

Four years on from the Committee’s last major review of the UN, its concerns about the UN’s human rights machinery largely remain the same. The question of the OHCHR having adequate funding to carry out its work is but one perennial example.

Towards the end of the roundtable hearing, Mr Brandt from the UNIC commented how pleased he was at the high level of interest in the current reform agenda set out in the UN Secretary-General’s report In Larger Freedom.

The Committee hopes that the roundtable and the report will also contribute to informed debate on UN reform within the Parliament and the Australian community.

The Committee certainly found the discussions very interesting and will follow the outcomes of the September summit and beyond. The Committee intends to invite the Department of Foreign Affairs to provide it with a private debriefing on the summit, with particular reference to issues surrounding reform of the Commission on Human Rights.

At this point in time, it is difficult for the Committee to comment on whether the proposal to replace the Commission with a Human Rights Council is the best or even an appropriate avenue to pursue. Details of the new body and how it might operate are scant. The primary question is whether a new body is likely to redress the shortcomings in substance or simply transfer existing problems to a new structure.

The Committee is concerned about what might happen to the Commission if the Human Rights Council proposal is not adopted by member states as the UN Secretary-General expects them to at the summit. The draft outcome document does not indicate whether there is a default plan. If the Council proposal is not adopted, the Commission might simply continue in its present form. Or, the present system or components of it such as the Sub-Commission could be abolished, without agreed upon replacements. Alternatively, the Commission could be replaced by a weaker body than the one we already have. In any case, there seems a real risk that the Commission’s “credibility deficit” could worsen.

For the international human rights agenda that would be calamitous. The Committee recognises that the Commission lies at the heart of the UN’s human rights machinery:

…it provides a focal point for world opinion where countries can get together in one venue to express their point of view when all countries are there listening.⁶⁵

At the beginning of the hearing, the Committee noted the areas in which the UN does very well-and these are well-documented- areas such as world health, education and the work of the UNDP.⁶⁶ The real achievements of the Commission -including its standard setting and peer review functions- as outlined in the beginning of this chapter can be added to that list of fine UN achievements.

There are major shortcomings in the way that the Commission operates. The worst of these, namely its politicisation and the difficulties in implementing its recommendations, are to some extent, inevitable. The Commission is an inter-governmental body that cannot be anything but political. Like the UN itself, the Commission is comprised of member states from different parts of the world, with different individual and allied agendas. It has finite resources. And, peer review and the ‘power of embarrassment’ are never going to stop the most egregious human rights abuses from occurring.

First and foremost, it is incumbent on member states to decide to what extent they accept help from the OHCHR and/or implement any of the Commission’s recommendations. It is important to recognise that the Commission is not itself empowered to fix domestic human rights abuses:

It is like courts. [The Commission] does not have back-up. It has public respect. So a human rights body will not solve the Darfurs and Tibets, but it will help focus public opinion on them by highlighting and articulating the problem.⁶⁷

Nor is the Commission the Security Council. It cannot sanction intervention. While it has been posited that the Human Rights Council have P5 representation, this is a dramatic and potentially problematic proposal on several fronts. At the hearing, Dr Mathew outlined some of the factors for consideration:

Human Rights generally are not about using military force and I would be very reluctant to see that sort of connection being made. While I recognise that human rights and security are interrelated, I do not want to see that connection being made where [the P5] automatically get a place on the council…It is worth pointing out that the Security Council is the only place where they have that special [veto] status, …so we would be creating something quite unusual for a body concerned with human rights.⁶⁸

One thing is certain. Whether the Commission continues to operate in its present structure or it is transformed into a Human Rights Council, we need to continue to strive towards making United Nations bodies like the Commission function as effectively as possible. While the following quote drives its point home hard it contains an important truth:

…despite the United Nations’ dysfunction, the world’s dependence on such bodies is growing, not shrinking. We need them despite the fact that they are slow, inefficient, often ineffective, a bit ridiculous and sometimes corrupt.⁶⁹

We would do well not to lose sight of that need in our talk of reform.

Senator A B Ferguson

Chair

12 September 2005