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MA International Politics and Human Rights2008

Has the reformulation of the Human Rights

Council enhanced the scrutiny of human rights

issues in the UN?

John William Lubbock

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Contents

Abstract 4

Part 1 Research Design0 Introduction 51 Methodology 82 Theory 123 Research hypothesis 1545Part 2 Case study6 From Commission to Council 197 The Commission and Council Compared 24

8 Universal Periodic Review 270 Case Study: Bahrain UPR 309 Special Procedures 3510 Code of Conduct 3911 Individual Complaints Procedure 43

Part 3The Limits of Diplomacy: Discourse Analysis 45

Part 4 - Findings

Bibliography 62

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Acronyms

CHR Commission on Human RightsECOSOC Economic and Social CouncilGA General Assembly

HCHR High Commissioner for Human RightsHRC Human Rights CouncilICCPR International Covenant on Civil and Political RightsIESCR -International Covenant on Economic Social and Cultural RightsISHR International Service for Human RightsLMG Like-Minded GroupOHCHR Office of the High Commissioner for Human RightsOIC Organisation of the Islamic ConferenceSP Special ProcedureSR Special RapporteurSRFOE Special Rapporteur on Freedom of Opinion or ExpressionWG Working GroupWGEID - Working Group on Enforced or Involuntary DisappearancesUDHR Universal Declaration of Human RightsUAs Urgent AppealsUPR Universal Periodic ReviewWEOG Western European and Other GroupWGEID Working Group on Enforced or Involuntary Disappearances

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Has the reformulation of the Human Rights

Council enhanced the scrutiny of human rights

issues in the UN?

Adopting a resolution by a recorded vote of 170 in favour to 4 against (Israel, Marshall

Islands, Palau, United States), with 3 abstentions (Belarus, Iran, Venezuela), the General

Assembly decided to set up the new Council to replace the Geneva-based Commission on

Human Rights, which has come under fire for excessive politicization.1

Abstract

This dissertation looks at the structure of the Human Rights Council (HRC) and its

methods of reporting and censure most importantly the Special Procedures (SPs), the

Universal Periodic Review (UPR) and Complaints Procedure with the aim of making a

comparative analysis of the new body to its predecessor, the Commission on Human Rights

(CHR). Among these mechanisms, the SPs have been recognised as the front-line

protection actors of the United Nations2, yet although they are among the most prominent

UN tools in monitoring human rights, few scholars have dealt with them in a systematic

and thorough way. (Nifosi, 2005, p1) They receive complaints, compile reports and make

on-site visits and Urgent Appeals (UAs), acting as quasi-judicial advocates for the victims

of human rights violations. The SPs mandate-holders are often independent experts

tasked with impartially reporting and seeking answers and remedies from state officials on

alleged violations. However, the SPs mandates are currently undergoing renegotiation by

the members of the Council, leading to the possibility that states will curb their powers and

responsibilities. This paper argues that while the Human Rights Council cannot change the

1 GA/10449, Department of Public Information, 15 th March, 2005,http://www.un.org/News/Press/docs/2006/ga10449.doc.htm2 Ramcharan, B., The Special Rapporteurs and Special Procedures of the United Nations Commission onHuman Rights and Human Security in B. Ramcharan (ed.),Human Rights and Human Security (TheHague: Kluwer Law International, 2002), p81

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external system of states directly, its norms and practices have a regulating, or socialising

effect on the exercise of state power which can contribute to their eventual change and

improvement.

Part 1

Introduction

The reform of the Commission on Human Rights (CHR) in 2006 under former Secretary-

General Kofi Annan led to a review not only of the working methods of that institution, but

reflected a fundamental realignment of the international status quo, with the US pursuing

an isolationist policy and powerful new regional groupings in Africa and the Arab world

increasingly demonstrating their collective bargaining power.

The SPs will be evaluated along with the UPR and Complaints Procedure by looking at

official documentation as well as by interviews with people who work(ed) in the Office of

the High Commissioner on Human Rights (OHCHR), including former SP mandate holders

Sir Nigel Rodley (SR on Torture) and Mr. Doudou Dine (SR on Racism).

The HRC is a charter body of the UN as it takes authority from the UN charter and not a

subsequent bilateral treaty like the Convention Against Torture. Every state within the UN

has accepted the terms of the Charter, and reservations cannot be made to it in the same

way as to a treaty. The charter bodies thus have theoretically universal authority (without

enforcement capacity), while the Treaty bodies have authority only in the signatory states

(and subject to reservations). In terms of legal enforcement capacity, both types of body are

inferior to regional mechanisms like the European Commission on Human Rights (ECHR),

which have seen the consolidation of institutions, with increasing emphasis on their

judicial or quasi-judicial character [while] at the universal level, there has been a

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proliferation of bodies, and a certain decline, or at least a failure to develop, complaints

procedures as distinct from reporting.3

It has been one of the major advantages of both the CHR and the HRC as charter bodies

that they have been able to monitor the spectrum of civil, cultural, economic, political and

social rights; attempting to treat them indivisibly and in combination, rather than being

restricted to the obligations acceded to by states in the International Covenant on Civil and

Political Rights (ICCPR), as the Human Rights Committee is although the Committee

may look at violations which are also subject to examination by other treaty bodies, like the

Committee against Torture (CAT).

In June 2008, the US withdrew from its observer status at the HRC4. Yet even liberal

commentators supported their absolutist with us or against us doctrine, the New York

Times hoping that a refusal to go along with this shameful charade can produce something

better 5. This paper studies how states engage in dialogue and why they wish to be seen in

a certain light within the international community.

Discourse analysis is employed to show how states conduct their diplomatic relations

and pursue their interests. As Caroline Kennedy-Pipe recently said, understanding

why and how there are wars and conflicts, or poverty and disease, or powerful vested

interests, is the first step to being able to do something about them.6

Literature Review

3 Crawford, J. The UN Human Rights System: A System in Crisis?, in Alston, P., Crawford, J., The Futureof UN Human Rights Treaty Monitoring, (CUP, 2000), p34 Human Rights Watch, US: Leaving UN Rights Council Fails Victims of Abuse, 6 June 2008,http://www.hrw.org/english/docs/2008/06/06/usint19048.htm5 New York Times, The Shame of the United Nations, February 26, 2006http://www.nytimes.com/2006/02/26/opinion/26sun2.html?_r=2&n=Top%2fOpinion%2fEditorials%20and%20Op%2dEd%2fEditorials&oref=slogin&oref=slogin6 Kennedy-Pipe, C., At a Crossroads and Other Reasons to be Cheerful: The Future of InternationalRelations, International Relations, 2007, 21, (Sage), p353

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In 1998, Flood wrote about the effectiveness of the UN human rights institutions. He

contrasted treaty and charter bodies, arguing that the former are more effective because

they act as the agent of apoliticalbody of the community of states.7 By this, Flood meant

that the Commission carries out its task in the name of the entire community of member

states. In this it differs from treaty-based organs, which do not speak on behalf of the

community of states or even of states party to the particular agreement.8 Flood also said

that sometimes country-specific procedures seem to have more impact in individual

states, showing that it is impossible to gauge an exact level of effectiveness in human rights

monitoring. As discussed below, this means that effectiveness is not an empirically

testable value, and why I have instead chosen to qualitatively measure human rights

scrutiny.

Flood lamented that the Commission was marred by political warfare: for decades, the

first week of each annual session of the Commission was devoted to condemning Israel and

the second week to condemning South Africa.9 This trend has continued in the new

Council, with a resolution condemning Israels war against Hezbollah in Lebanon in

August 200610.

Other writers, such as Gutter and Nifosi11, have written on the development of the Human

Rights and Special Procedures mechanisms of the UN, and they point to some problems

they perceive as obstructing the development and impact of human rights. Gutter notes the

lack of financing for Special Procedures, though the deficiencies had been partly repaired

by contributions from individual states including the UK. Gutter also notes the non-

cooperation of the Like-Minded Group12 (LMG), for whom the process of review of the

mechanisms of the Commission had become an occasion to introduce what some have

7 Flood, P.J., The Effectiveness of Human Rights Institutions (Praeger, 1998), p38 Ibid, p399 Ibid, p4010 A/HRC/S-2/1, www2.ohchr.org/english/bodies/hr council /specialsession/2/docs/A.HRC.S-2.1_en.doc11 Nifosi, I., The UN Special Procedures in the Field of Human Rights (Intersentia, 2005)12 Often synonymous with the Non-Aligned Movement or the G77, it is composed mainly of Asian andAfrican states who have sought to avoid domination by the Western or Communist blocs see Non-Aligned Movement and Developing Countries, The Annual Register. A Record of World Events, Vol. 247,2005, p365http://www.staff.city.ac.uk/p.willetts/PUBS/AR05-NAM.PDF

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called the negative reform agenda.13 As these authors described the development of the

CHR and the Special Procedures, this study will only cover recent events.

These studies are indicative of the frustration at the inertia which seemed to follow the end

of the Cold War within the UN at large. They also testify to the dearth of literature

specifically evaluating the Human Rights Commission/Council. Much of the literature

pertinent to this question is found in UN documents, and there are many theoretical

secondary sources which will be discussed in connection with the problem of guaranteeing

human rights.

Theory and Discourse

This dissertation incorporates a constructivist approach to international relations, a

cosmopolitan interpretation of the problem of human rights, and a Grotean view of the

international system. Constructivism is an epistemology which describes how meaning and

knowledge is constructed relative to social context. Constructivism has emerged in

response to Neo-Utilitarian views of the structure of international society to describe a

world of complex power relations, populated by state andnon-state actors who are created

by and in turn create the structures of international society. (Baylis, Smith, 2006, p254-5)

Unlike realism, constructivism was never intended to be a teleological theory, a particular

form developed, over considerable time, to realize the purposes the motivating goals,

animus, telos of an activity14 the activity or object here being the international system.

This paper takes a Grotean view of international society, which the English School theorist

Hedley Bull described as standing between the realist and universalist approaches to

international politics:

13 Gutter., J., Special Procedures and the Human Rights Council: Achievements and Challenges Ahead,Human Rights Law Review, 2007, p10414 Eckstein, H., Regarding Politics, (California, 1991), p127

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states are not engaged in simple struggle, like gladiators in an arena, but

are limited in their conflicts with one another by common rules and

institutions.15

The English School view of the balance of power is relevant to this discussion, as within

international society it is an institution that functions to check the preponderance of any

one state.16

Constructivism has been heavily influenced by the post-structuralist critic, Foucault.

Structuralism assumed that social and cultural objects existed in the real world 17, while

for post-structuralists these objects did not exist objectively but were constructed by their

place within power and discourse. Foucault saw power not in terms of material capabilities

but as a matrix of forces which constituted individual subjects, producing individuals in

relation to one another. For Foucault, official knowledges (particularly the social sciences)

work as instruments of normalisation, continually attempting to maneuver populations

into correct and functional forms of thinking and acting.18His contribution to the

understanding of discourse was to move it away from a linguistic system towards the

notion of discipline a body of knowledge or a disciplinary institution like prison, school,

hospital and church.

Theories, discourses, linguistic practices and religious beliefs are what Durkheim called

social facts objective projections of ideational and normative factors. Thus,

"Whenever certain elements combine and thereby produce, by the fact of their

combination, new phenomena, it is plain that these new phenomena reside not

in the original elements but in the totality formed by their union."19

15 Bull, H., The Anarchical Society (Palgrave, 1977, 3rd edition, 2002), p2516 Ibid, p3117 McHoul, A., Grace, W., A Foucault Primer, Discourse, power and the subject, (Melbourne UniversityPress, 1998), p3418 Ibid, p1719 Durkheim, E., in Ruggie, J, G., What Makes the World Hang Together? Neo-Utilitarianism and theSocial Constructivist Challenge,International Organization, Vol. 52, No. 4, (Autumn, 1998), p858

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Constructivism is descended from this kind of structural analysis, as seen in Foucaults

definition of discourses as clusters of ideas which produce the very objects which

previously they had been thought merely to explain or describe.20For theorists like

Ruggie, this observation informs an approach they take to international relations called

social constructivism.

Woodiwiss analysis of the construction of human rights therefore utilises Foucaults

theory of discourse, the more or less formal sets of interlinked concepts, whether in the

form of religions, ideologies, sciences, or whatever, that organise, order and constrain our

thought.21 Like Durkheims definition of religion, (A unified system of beliefs and

practices relative to sacred things22) discourses contain and exclude various elements

related to them, or sacred and profane elements. Alternatively, discourses can be

thought of as pertaining to different discursive areas, and can thus be more or less

applicable to a given context.

Discourses gain power in the interaction between four elements: objects (the things they

are about); modes of enunciation (the way these things are spoken of); concepts (the

intellectual constructs that are used to speak about them); and strategies (the ways in which

these constructs are combined or thematised).23 For example, the discourse of rights still

takes as its object of application at the national level the same kind of social structure that it

did in the 1940s: namely, capitalist society where individualism is a significant component

of the value system, the rule of law is securely established, the polity is liberal-democratic,

and there are a broad range of social services, voluntary associations and legal statuses.24

Clearly, such a discourse is more relevant to some states and societies than others.

A caveat to the use of discourse must be acknowledged. Foucaults analysis of discourses

concentrated on the localised level of power, like prisons and hospitals. He was a

20 McHoul, A., Grace, W., A Foucault Primer, Discourse, power and the subject, (Melbourne UniversityPress, 1998), p1021 Woodiwiss, A., Human Rights (Routledge, 2005), p2722 Durkheim, E., The Elementary forms of Religious Life (OUP, 2001), p4623 Woodiwiss, A., Human Rights (Routledge, 2005), p2824 Woodiwiss, A, Human Rights and the Challenge of Cosmopolitanism, Theory, Culture and Society, Vol19, No 1-2, Feb-April 2002 (SAGE), p149

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materialist, yet he disagreed with both Realists and Marxists in believing that neither base

nor superstructural levels of power were simply reducible to one another. Selby has

questioned what use Foucauldian analysis can be in the study of International Relations. 25

Selby believes that Foucault can be used to analyse the how of power, but not the when,

where or why. Power is more centralised at the international level, and not all the actors

adhere to the liberal techniques and reason which Foucault explored in domestic Western

society. Thus part 3 of this paper will look at inter-state discourse and analyse the how of

power expressed at that level.

To supplement the internationalist poverty of constructivism, this paper will combine

constructivism with an English School approach to international society and a

cosmopolitan approach to human rights.

Chomsky has said that there are two superpowers in the world, the US and world public

opinion.26 As far as discourse goes, this means that the US is only a superpower to the

extent to which it is able to lead a consensus of international political discourse. Many now

believe this power is waning, and one goal of this study will be to assess to what extent

such a balance of power shift in political discourse is having detrimental effects on the

observance of human rights standards.

Universalism vs. Cosmopolitanism

It has become accepted within Western human rights discourse that such rights as are

contained in the UDHR and ICCPR are universally applicable; surely, they ask

rhetorically, there is nothing more universal and thus cosmopolitan than the autonomy of

the individual?27 Yet there are competing conceptions of human rights in different regions

of the world. The Japanese conception is different from the Indian, and from the Brazilian.

The cosmopolitan approach is neither relativist or universalist, but seeks to acknowledge

the things we share as a global citizenry, while respecting difference. Woodiwiss calls this

25 Selby, J., Engaging Foucault: Liberal Governance and the Limits of Foucauldian IR, InternationalRelations, 200726 Chomsky, N., Hegemony or Survival (Penguin, 2003), p427 Woodiwiss, A., Human Rights (Routledge, 2005), p123

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the chthonic principle, which is that we all share a responsibility to alleviate each others

misery, [yet] there is no one best way in which this should be done.28

Woodiwiss has analysed the formation of human rights discourse from the contending

natural law and reciprocal traditions from a postcolonial, cosmopolitan viewpoint. The

rights specified in the UDHR show a discursive bias towards a Western viewpoint,

specifying for example, that Everyone has the right to social security29. This

universalist discourse has even emerged in the ironically titled Universal Islamic

Declaration of Rights, which does not contain the right to freedom of Religion.

For Woodiwiss, the translation of Roosevelts four freedoms (expression, religion and from

want and fear) into the Cold War atmosphere of the Human Rights Commissions drafting

of the UDHR created a set of rights which laid too much stress on the civil and political

or, in Kantian terms, the republican side.30 It was because of the divide in opinion over the

UDHR between Western states and those who abstained from the vote such as the USSR,

Saudi Arabia and South Africa, that the Human Rights Commission abdicated

responsibility for investigating individual complaints until 1967, and this was the

breakthrough that led to the establishment of the first Special Procedures on the Occupied

Palestinian Territories and South Africa in the same year31.

Englunds important work on human rights discourse in Malawi shows how civic education

organisations have reproduced existing power relations while appearing to talk the

emancipatory language of universal rights. He notes that abstract universalism obscured

the situation of human rights32, and stresses the importance of sensitivity to context. This

gives the observer an index of the usefulness of the Human Rights Council. It is the only

state-led international institution to look at individual cases of human rights abuse, yet it is

also often mired in abstract platitudes of the importance of universal rights. It can only be

seen to be working by applying those rights to cases in context, which again takes us back

28 Woodiwiss, A., Human Rights (Routledge, 2005), p13029 UDHR, Article 22http://www.un.org/Overview/rights.html30 Woodiwiss, A., Human Rights (Routledge, 2005), p8931 Nifosi, I., The UN Special Procedures in the Field of Human Rights (Intersentia, 2005), p1532 Englund, H., Prisoners of Freedom, (University of California Press, 2006), p105

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to the importance of the Special Procedures, who introduce that element of specificity to

the abstract, diplomatic discourse between states.

Law, Justiciability and Translation

There is a sharp dividing line between domestic, or hard law, and international, or soft

law. International law may find binding force in regional instruments like the European

Court of Human Rights, or may be ratified by domestic parliaments and become domestic

hard law. This is not the place to engage with the difficult question of how soft law can

become enforceable, suffice it to say that many victims of abuse are entitled to judicial

remedy by national or regional institutions to rights contained in treaties like the ICCPR,

yet it remains for governments and civil society to take positive steps to provide

marginalised people with the ability to claim these rights.

The success of civil and political rights enforcement has been tied to the hegemony of the

rule of law (specifically Anglophone common law) within international law. Yet this kind

of rights discourse has been shown to be unhelpful to many in the global South who see

development and communitarian rights as more fundamental to their advancement.

Englund sees the individualization of rights discourse in Africa as effectively ignoringstructural inequalities and group discrimination.

There is a discontinuity within international law, whereby economic and social rights (or

the minor tradition), have assumed a legally subordinate role. The ICCPR requires state

parties to develop the possibilities of judicial remedy33, while the ICESCR has no

equivalent provision. An optional protocol to the ICESCR now allows individual

complaints to be made to the Committee on Economic, Social and Cultural rights, yet there

is still no mechanism enjoining states to develop domestic remedies which would allow for

the translation of these rights into specific localised contexts. The UDHR, however, gives

everyone the right to an effective remedy by the competent national tribunals34, and this

33 ICCPR, Art. 2.3(b),http://www2.ohchr.org/english/law/ccpr.htm34 UDHR, Art. 8, http://www.un.org/Overview/rights.html

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should encourage states and NGOs to lobby for this provision as another protocol of the

ICESCR.

The arguments against justiciability of economic and social rights are well known: civil

and political rights are (in the terms of the general comment on the ICCPR): immediately

applicable, while the latter were to be progressively implemented the former were rights

of the individual against the state while the latter were the rights which the state would

have to take positive action to promote35. As previously stated, it is only theoretically true

that civil and political rights are immediately applicable because those who need them may

not be in a position to claim them. The ICCPR also contains the right to religion and

culture, which do not fit neatly into the category of individual rights.

Englund believes that Rather than deciding which set of rights should come first, we

should replace abstract considerations with empirical investigations into the actual

situations of rights and wrongs.36Woodiwiss is, in my view, correct to say that even if

economic rights such as to housing and freedom of labour have not traditionally been

justiciable in international law, this is not to say that they could not, in principle, be

pursued through the courts37. As the Olga Tellis v. Bombay Municipal Corporation38 case

has shown, the right to adequate housing can be made justiciable, though it is telling that

this right was asserted by linking it to the right to life in the Indian constitution. Making

economic rights operational through the language of civil and political precedent may help

to deliver the positive rights that citizens require in their local context, while not obligating

the state to provide welfare beyond its means.

Woodiwiss and Englund are not relativists, or communitarians. They believe that all

people should share fundamental rights, yet they understand that the way in which these

rights can be made operational in different states requires their translation.

35 Steiner and Alston, International Human Rights in Context (1st Edition, OUP, 1996), p26136 Englund, H., Prisoners of Freedom, (University of California Press, 2006), p2737 Woodiwiss, A., Making Human Rights Work Globally, (Glasshouse Press 2003). P3338 Steiner and Alston, International Human Rights in Context, (3rd Edition, OUP, 2008), p323

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Rights like words themselves are contextual. The word freedom, as Englund has

pointed out39, was translated into the Kiswahili word Uhuru, and meant liberation from

colonialism. Yet Africans have come to realise that freedom is not synonymous only with

that discourse, as it is not synonymous with an individual rights discourse either. It is not

for politicians from whichever culture to impose their cultural interpretations of freedom

on international law, which should be secular, culturally neutral and allow for the

possibility of translation into domestic contexts.

For Englund, making individual freedoms the essence of rights marginalized other

grounds for making claims.40 Woodiwiss believes that economic and social rights are

only not justiciable because the right to housing, or to legal aid in labour disputes, or to

education or healthcare do not exist in many domestic legal codes in domestic laws. This

paper does not argue that judicial remedies are the only method of redressing structural

economic inequalities, but that legal codes should protect the right to pay and fair treatment

of employees as much as the property rights of landowners: as a quasi-judicial international

body, the HRC has some legal authority which should be used to democratise international

law and recognise other kinds of freedom as having legal status.

Methodological Design

A Quantitative Approach to Effectiveness?

A qualitative evaluation of the impact of the Human Rights Council is the only

methodologically rigorous way to approach such an institutional case-study. Landman

attempted a quantitative study of HR measurement41, describing different studies that

have coded the prevalence of human rights in national constitutions, or measured the

relationship between human rights and variables like democracy, investment, economic or

military assistance. This kind of assessment is impeded by the lack of reliable data from

before a certain date and for certain states, making comparative analysis hard.

39 Englund, H., Prisoners of Freedom, (University of California Press, 2006), p240 Ibid, p14641 Landman, T., Measuring Human Rights: Principle, Practice, Policy, Human Rights Quarterly 26, 2004,p906

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Quantitative evaluations of the effectiveness of any human rights regime are bound to be

superficial, as the following examples show.

First, it is possible to look at what percentage of communications sent by SPs received

replies. Livermore and Ramcharan are quoted by Flood as saying that the Working Group

on Enforced or Involuntary Disappearances (WGEID) had a success rate of 7-8% of cases

resolved42, and 25% of urgent cases, which is higher than any other body within the UN

system43, as of 1998. Without a control group to compare with this figure, the impact of

the procedure cannot be evaluated.

To update this figure, the 2008 WGEID report shows that The total number of cases

transmitted by the Working Group to Governments since the Working Groups conception

is 51,763. The number of cases under active consideration that have not yet been clarified

or discontinued stands at 41,257 and concerns 78 states. The Working Group has been able

to clarify 2,702 cases over the past five years.44 Thus, as of January 2008 the percent of

cases resolved by WGEID stands at 20.3%, an increase from the 7-8% reported in 1990,

suggesting that capacity building within OHCHR has resulted in a strengthening of their

fact-finding capabilities.

Unfortunately, responses to communications tell the observer little more than how a state

wants to be seen how much it cares about its reputation. An anonymous Special

Procedure Secretariat official commented that, first of all, the fact that they do reply does

not necessarily mean that anything positive is done, but the fact that they dont reply does

not necessarily mean that they just ignore it. It is also an indication of course of how a

government wants to be seen.45

42 Resolved cases also do not differentiate between persons located alive or known to have died.43 Livermore, D., Ramcharan, B.G., Enforced or Involuntary Disappearances, An Evaluation of a Decade ofUN Action, Canadian Human Rights Yearbook, 1989-90 (Ottawa University Press, 1990) , p227, quoted inFlood, P.J., The Effectiveness of Human Rights Institutions (Praeger, 1998), p6144 A/HRC/7/2, 10th January, 2008, Report of the Working Group on Enforced or InvoluntaryDisappearances, p7http://daccessdds.un.org/doc/UNDOC/GEN/G08/101/05/PDF/G0810105.pdf?OpenElement45Confidential communication, OHCHR SP Secretariat Official, Interview with John Lubbock, 29 August2008

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Over the last few years, the OHCHR facts and figures reports show a less favourable trend

for communications by SPs as a whole:

Special Procedures Communications Facts and Figures 2005-7

200546 200647 200748

Total Communications 1049 1115 1003Joint Communications 53% 48% 49%Individuals Covered 2545 2869 2294

% of female individuals 14% 17% 13%

Number of countries covered 137 143 128Government responses received as of

April/May the following year46% 58% 52%

Gov. responses to communications sent

in that yearn/a 40% 32%

These figures demonstrate the limits of quantitative analysis. They say nothing about the

quality of the communications or responses, and the facts and figures charts themselves are

not clear on the differences between the two figures for the percentage of responses

received. In sum, these figures are ambiguous, not comprehensive enough, and show that

complaints are not dealt with promptly, even with the incentive states now have ofpreparing a good record for their UPR.

Another possible measure of effectiveness is the budgetary funding of OHCHR and the

SPs. At the 2005 World Summit, states pledged to double the budget of OHCHR over five

years49. Although this Increased donor confidence in the Office has translated into an

increased willingness to provide a greater proportion of funding free of earmarking50, the

2008 regular budget of OHCHR, at $119.2m still only represents 2.89% of the global UN

46 OHCHR, Special Procedures of the Commission on Human Rights, Facts and Figures on 2005Communications, p2 (http://www2.ohchr.org/english/bodies/chr/special/Facts%20and%20figures%20on%202005%20Special%20Procedures%20communications.pdf)47 OHCHR, Special Facts and Figures on 2006 Communications, p1http://www2.ohchr.org/english/bodies/chr/special/docs/facts_figures_2006.pdf48 OHCHR, Special Procedures Facts and Figures on 2007 Communications, p17http://www2.ohchr.org/english/bodies/chr/special/docs/SP2007FactsFigures.pdf49 OHCHR Funding and Budget,http://www.ohchr.org/EN/AboutUs/Pages/FundingBudget.aspx50 OHCHR Strategic Management Plan 2007, p109http://www.ohchr.org/Documents/Press/SMP2008-2009.pdf

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budged (excluding peacekeeping operations), indicating how far the mainstreaming of

human rights within the UN has to go.

51

As the OHCHR budget shows, voluntary contributions to OHCHR still account for a high

proportion of its overall budget. Of this total, the SPs receive $12m of regular budget

funding, and around $9m from voluntary contributions52 (projected 2008-9), according to

Heike Alefsen, Coordinator of the Information and Management Unit of the Special

Procedures Division of OHCHR. She estimates that this is a $2m overall increase since

2006-7.

Part 2

From Commission to Council

In comparing the authority of the Council to that of the Commission, it is important to

understand whose agency lay behind the reformulation and the broader context that

51 Ibid, p10852Heike Alefsen, interview with John Lubbock, 24 September 2008

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produced a consensus that change was necessary. Comparison between reform proposals

and the final mandate also reveals the political exigencies of the context of reform and

suggests recommendations for further future reform.

The first mention of a reformulation of the Commission in official documentation came in

the High-Level Report on Threats, Challenges and Change, in 2004. For David Hannay, the

British representative on the Panel, their report was a fundamental part of the

reconstruction of new security consensus based on a broad understanding of the threats

posed by the new world order: poverty, disease, environmental degradation, war,

terrorism and trans-national crime. The world had changed fundamentally, and the UN had

been unable to keep pace with that change as it began to look increasingly irrelevant to the

political realities of a uni-polar world with many new and old problems. The US invasion

of Iraq in 2003 was the final straw; Kofi Annan declared it to be a fork in the road for the

UN: change or suffer a similar fate to the League of Nations.

Thus for the Panel members, The macro challenge was to fill the vacuum in strategic

thinking about collective security which had existed for more than ten years since the end

of the Cold War had given the global kaleidoscope a sharp shake, while [t]he micro

challenge was to analyse each individual threat and challenge and to devise specific policy

responses that would have some chance of winning consensus53.

In the longer term, Member States should consider upgrading the

Commission to become a Human Rights Council that is no longer

subsidiary to the Economic and Social Council but a Charter body standing

alongside it and the Security Council, and reflecting in the process the

weight given to human rights, alongside security and economic issues, in

the Preamble of the Charter.54

53 Hannay, D., New World Disorder, (I.B. Taurus, 2008), p22354 A/59/565, Follow-up on the Outcome of the Millenium Summit, p75http://www.globalpolicy.org/reform/initiatives/panels/high/1202report.pdf

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The Panels proposition was radical a universal body would replace the 53 member

Commission so that all states would be able to have a say, rather than the body being

dominated by those with most interest in shielding their own violations:

In many ways, the most difficult and sensitive issue relating to the

Commission on Human Rights is that of membership Proposals for

membership criteria have little chance of changing these dynamics and indeed

risk further politicizing the issue. Rather, we recommend that the

membership of the Commission on HumanRights be expanded to

universal membership.55 (Emphasis in original)

David Hannay, the UK representative on the panel, has written recently that the panel

doubted whether the aim of a CHR (or HRC) restricted to a small number of squeaky-

clean countries ruling on those with less good records was likely to be the best way of

making progress.56He noted that this was contrary to the wishes of the NGO community,

who wanted a smaller body.

The UN Secretary General, Kofi Annan took up the reform proposals in his In Larger

Freedom report of March 200557. This document attempted to set an agenda for discussion

at the September 2005 follow-up to the 2000 Millennium Summit. It emphasised what

Woodiwiss has referred to as the minor or reciprocal tradition as laid out in Roosevelts

Four Freedoms speech. Sections of Annans report are entitled Freedom from Fear,

Freedom from Want, and Freedom to Live in Dignity (but not the other two of

Roosevelts freedoms, of expression and religion). It is under this last heading that Annan

introduces a proposal to transform the Commission into a central pillar of the UN,

renaming it as a Council to elevate its importance to the level of the Security Council or

ECOSOC. Such a body could either be accorded the status of a principal body of the UN,

or a subsidiary of the Assembly.

55 Ibid, p7456 Hannay, D., New World Disorder, (I.B. Taurus, 2008), p26357 A/59/2005, http://daccess-ods.un.org/TMP/3872275.html

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A number of additional documents elaborated on the proposals contained in In Larger

Freedom. A/59/2005/Add.1 includes outlines the new key peer review function

proposed by Annan in a speech in April 2005. The document asserts that The peer review

would help avoid, to the extent possible, the politicization and selectivity that are the

hallmarks of the Commissions existing system.58However, it was not clear exactly how

this de-politicisation would be achieved, other than having all states submit to a structured,

rule-bound process of review every four years, although the call for country delegations to

be headed by experienced human rights figures was one positive recommendation. Also

left out of Annans report was a proposal from the panel to link the HRC with a new

Peacebuilding Commission, which developing states feared would lead to interventionism

from the Council.59

However, Annans proposals inIn Larger Freedom were for a smaller, standing body, with

members elected by a two thirds majority of the General Assembly.60It is generally

accepted that this move was to appease the reactionary US delegation led by John Bolton,

who famously told a World Federalist Conference that There is no such thing as the

United Nations. There is only the international community, which can only be led by the

only remaining superpower, which is the United States.61 While this unilateral approach

may have seemed productive when he made the remark in 1994, twelve years later he

seemed unable to adjust his diplomatic stance to a changing international order. Rodleys

view on this decision broadly reflects the institutional view: I still think that was a serious

mistake the US route of having a smaller Commission, a smaller body that would be

composed of those with decent human rights records.62

The 2005 World Summit Outcome document concurred with Annans assertion that peace

and security, development and human rights are the pillars of the United Nations system

and the foundations for collective security and well-being.63 It also endorsed the creation

58 A/59/2005/Add.1, p3 http://www2.ohchr.org/english/bodies/hrcouncil/docs/gaA.59.2005.Add.1_En.pdf59 Hannay, D., New World Disorder, (I.B. Taurus, 2008), p27960 A/59/2005, p45 http://daccess-ods.un.org/TMP/3872275.html61 The Times, March 8th, 2005,http://www.timesonline.co.uk/tol/news/world/us_and_americas/article421888.ece62 Sir Nigel Rodley, Interview with John Lubbock, 14 August 200863 A/Res/60/1, p2http://daccess-ods.un.org/TMP/7974843.html

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of the Council, but declined to offer any concrete proposals, instead mandating the

President of the GA to continue to negotiate its mandate and composition, while strongly

reminding states of their obligations under the Charter, the UDHR and other instruments,

because The universal nature of these rights and freedoms is beyond question.64

Reform the UNhave helpfully compiled a document detailing all the changes between the

Revised Outcome Document written by GA President Ping and the final draft after it had

been dissected by the US delegation. Apart from a concession on paragraph 124 (The

paragraph on doubling the regular budget resources of the Office of the UN High

Commissioner for Human Rights was retained.65), the whole of the section on the

composition, mandate and size of the body has been gutted to defer those decisions to a

later date.

According to Arroba, Bolton made 750 edits to Pings draft Outcome Document of the

2005 Millennium Summit, which proved a real last-minute blow to the delicate consensus

brooked during the previous months, reopening the negotiations and creating an

opportunity for spoilers like Algeria, Cuba, Egypt, India, Iran, Pakistan and Venezuela to

undermine deeper reforms that would have run against the interest of their governments. 66

Bolton deleted references to the Millennium Development Goals, threatened to withhold

US approval of the UN budget67, and then attended only one of thirty negotiating sessions

over the HRC68, pressing for the five Security Council members to be given permanent

seats on the Council.69

Having considered the possibility that US exceptionalism could have persuaded other states

to vote for a stronger HRC mandate than they otherwise would have, there seems little

doubt that the prevarication of the US delegation encouraged other human rights abusing

states to water down the mandate. Furthermore, the scrapping of the proposal for a

64 Ibid, p2765Reform The UN, Changes between the Revised Draft Outcome Document (Ping III, 10 August) and the2005 World Summit Outcome (15 September), http://www.reformtheun.org/index.php/articles/166266 Arroba, A.A., The New United Nations Human Rights Council: What has changed? What can change?Democracy Coalition Project, 2006, p69http://www.webasa.org/Pubblicazioni/Alonso_2006_2.pdf67 Ibid, p7068 Ibid, p7169 Ibid, p72

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universal Council seems to have been aimed directly at securing US support. Boltons main

problem with negotiating diplomatically seemed to be that he did not take into account the

impact of the Iraq war, and the blow to US support caused by its unilateral violation of

Iraqi sovereignty, a rule which, according to Bull, protects both parties and not merely the

party whose cause is just.70 Bolton barely mentions Iraq in his recent book, and instead

states that we had been losing the moral high ground by our repeated compromises 71 in

order to justify his style of my-way-or-the-highway diplomacy.

Rodley concurred with this analysis:

It would have been a stronger mandate if the US hadnt sent John Bolton to

disrupt the negotiations 6 months earlier, and then we probably wouldnt have

had the problem we ended up having of an increased majority of Afro-Asian

countries over all the rest. Its clearly not what they intended, unless what

they intended was, having decided that the CHR was discredited for highly

dubious reasons, and they just wanted to continue discrediting the HRC, as

part of discrediting the United Nations, because part of the US administration

was very, very anti the UN, and that particularly included John Bolton so

they actually had an interest in even the human rights work being

discredited.72

The Council and Commission Compared

Commission:

53 states, 15 from Africa, 12 from Asia, 5 from Eastern Europe, 11 from Latin America

and the Caribbean, 10 from the Western Europe and Other Group

Subsidiary of ECOSOC; members elected by a simple majority of ECOSOCs 54

members; limitless terms for members

70 Bull, H., The Anarchical Society (Palgrave, 1977, 3rd edition, 2002), p2971 Bolton, J., Surrender is Not an Option (Threshold, 2007), p23572 Sir Nigel Rodley, Interview with John Lubbock, 14 August 2008

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Subsidiary of the Economic and Social Council

Once a year meeting in March and April; emergency sessions required a majority of

votes

In session for 6 weeks a year

SP mandate holders served two terms of 3 years each

Council:

47 states, 13 for Africa, 13 for Asia, 6 for Eastern Europe, 8 for Latin America and the

Caribbean, and 7 for the Western Europe and Other Group

Subsidiary of the General Assembly; members elected by an absolute majority of its

members (96 of 192); members limited to 2 terms of 3 years each

Three regular sessions a year; emergency sessions require 1/3 to vote in favour; gross

violators can be suspended with a 2/3 majority vote

In session for a minimum of 10 weeks a year

Thematic mandates: two terms of 3 years, Country mandates re-evaluated every year

Looking at the final resolution establishing the Council, the first noticeable change from

the draft proposals is that members of the Council shall be elected directly and

individually by secret ballot by the majority of the members of the General Assembly 73,

rather than by a two thirds majority. This looks like less of a climb-down, however, when it

is considered that under the old Commission, candidates agreed on a regional slate could

not be opposed by those countries outside the region74.

The reduction of the membership criteria from two thirds to a majority vote was a major

reason why the US delegation opposed the eventual draft of the HRC mandate. The US

still favors a smaller Council as well as stronger criteria for membership, as had been asked

for by some nations. Also, they seemed to hold on to their criteria of a 2/3 majority vote in

the GA (opposed to the simple majority mentioned in the draft) for electing the members of

73 A/Res/60/251, p3http://www2.ohchr.org/english/bodies/hrcouncil/docs/A.RES.60.251_En.pdf74 Hannay, D., New World Disorder, p288

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the Council.75 Council President Jan Eliasson had proposed a 45 member council in an

earlier draft, which was later increased to 47, and the requirement for states to make

pledges to uphold human rights as a compromise position.

Strikingly, the only regional group that saw its representation increase after the

reformulation was the Asian group. This represents the distribution of member states into

the increasingly important geopolitical regional groupings, where Africa and Asia have 53

states each, Latin America and Caribbean 33, WEOG 27 (not including the US and Israel),

and Eastern Europe 23. In effect, the support by the EU and other Western states for a

smaller Council meant that WEOGs representation was reduced, leaving them as a

vulnerable minority on the Council.

The HRCs new mandate institutionalises voluntary pledges to uphold human rights by

requiring that, when electing members of the Council, Member States shall take into

account the contribution of candidates to the promotion and protection of human rights and

their voluntary pledges and commitments made thereto76 In practice, this means that the

pledges are mandatory77. An SP Secretariat official also revealed a corollary of the pledges:

Last year we did several country visits where the inviting country said that they invited us

because of the pledges because they are a member of the council. Indonesia, Sri Lanka

and I think also Nigeria We dont know whether they would have invited us otherwise.

They are places the Rapporteur wasnt previously invited, and they invited us and they also

indicated this link.78 However, pledges and invitations are only an index of how a state

wishes to be perceived, and Sri Lanka especially has had a good record of inviting SP

mandate-holders for some time.

The EU was disorganised in its support for an NGO backed no clean slate rule forcing

more states to stand than there are seats per region, and this was not passed.79 However,

75 Kirchmeier, F., Friedrich-Ebert-Foundation, Geneva Office, 13.03.2006http://library.fes.de/pdf-files/bueros/genf/04370.pdf76 A/Res/60/251, p3http://www2.ohchr.org/english/bodies/hrcouncil/docs/A.RES.60.251_En.pdf77 UN General Assembly 61st Session HRC electionshttp://www.un.org/ga/61/elect/hrc/#candidates78 Confidential communication, OHCHR SP Secretariat Official, Interview with John Lubbock, 29 August200879 Gowan, R., Brantner, F., European Council on Foreign Relations, A Global Force for Human Rights? AnAudit of European Power at the UN, p39, http://ecfr.3cdn.net/3a4f39da1b34463d16_tom6b928f.pdf

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regional blocs have voluntarily allow more states to stand in HRC elections than there are

seats available. At the May 2007 election, all regions had more states standing for

membership than there were seats, with the election more competitive in the Eastern and

Western Europe and Latin America blocs.80 If there are only as many states standing for

election as there are seats, they can still be rejected if they fail to get the required number of

votes, which encourages more states to stand.

Furthermore, in terms of communication and involvement of civil society, NGOs are now

able to fully participate in Council meetings, and the sessions are broadcast live and on

demand on the OHCHR website. Under the Commission, NGOs in consultative status

with ECOSOC [could] submit written statements in accordance with paragraphs 36 and 37

of ECOSOCO resolution 1996/31.81Now NGOs may make oral and written statements

even if they cannot attend the session in person.82 This can only be a positive thing and

encourage further civil society participation and media coverage.

The Universal Periodic Review

The General Assembly, in its resolution 60/251, mandated the Council to

" undertake a universal periodic review, based on objective and reliable

information, of the fulfillment by each State of its human rights obligations

and commitments in a manner which ensures universality of coverage and

equal treatment with respect to all States; the review shall be a cooperative

mechanism, based on an interactive dialogue, with the full involvement of the

country concerned and with consideration given to its capacity-building

needs; such a mechanism shall complement and not duplicate the work of

treaty bodies. "83

80 UN General Assembly 61st Session HRC elections, http://www.un.org/ga/61/elect/hrc/#candidates81 CHR Liaison information, http://www2.ohchr.org/english/bodies/chr/sessions/62/ngoliaison.htm82 HRC NGO participation information, http://www2.ohchr.org/english/bodies/hrcouncil/ngo.htm83 A/RES/60/251, p3http://www2.ohchr.org/english/bodies/hrcouncil/docs/A.RES.60.251_En.pdf

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The UPR consists of a review of each state during a three hour Working Group meeting

(assisted by a Troika of state representatives drawn by lot), during which the group

considers three kinds of submission:

Information prepared by the State itself: this can take the form of a national report84 or any

other information considered relevant by the State concerned. The presentation must not

exceed twenty pages.

A report by the Office of the High Commissioner on Human Rights of no more than ten

pages containing information included in reports of treaty bodies, special procedures,

observations and comments by the State concerned and other UN documents.

Other credible and reliable information provided by relevant stakeholders (like NGOs),

which are summarized by the Office of the High Commissioner in a document not

exceeding ten pages.85

One of the most positive aspects of the UPR is that all states know that their human rights

records will be debated to some extent at least every four years, and no state can avoid

censure indefinitely. This is certainly a positive step, and as such most states thus view the

process optimistically in hoping that it will encourage compliance and reduce politicisation.

From the NGO perspective, however, the UPR is not a strong deterrent, is not probing

enough and prolongs the politicisation of the Council.

The human rights NGO, Fdration Internationale des Droits de lHomme (FIDH)

expressed the general concern of non-state stakeholders:

the example of other international fora that use a peer review mechanism,

such as OECD, shows that this method leads to the adoption of consensual

reports. In the area of human rights, a 'consensual' assessment would de facto

lead to characterizing situations in a minimal way, or to selecting concerns, or

even to putting some 'non-consensual' matters aside. This non-denunciation

84 Prepared according to A/HRC/DEC/6/102, Guidelines for the Preparation of Information under UPRhttp://upr-info.org/IMG/pdf/A_HRC_DEC_6_102.pdf

85 Information summarized from upr-info.org(http://upr-info.org/-UPR-Process-.html)

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will be all the more serious since the peer review's asserted goals are its

objectivity, exhaustiveness and universality.86

NGOs and SP mandate holders have both been asking for a higher level of input in the

UPR, because mutual-evaluation could lead to mutual-exoneration by States in the

framework of their international commitments.87The International Service for Human

Rights (ISHR) also wished to express serious concern at the practice of some states which

have been lining up only to praise their allies, and that the UPR has not lived up to the

expectations of a move away from the politicisation of the past. Indeed, in many cases,

this politicisation has seemed more pronounced than ever.88

The idea that evaluating pledges and implementation of recommendations by other UN

mechanisms would make the UPR in any way more biased would seem disingenuous, yet

some want to keep the UPR primarily under state control. Some states favor using the

Universal Periodic Review (UPR) to evaluate the implementation of Special Procedures

reports, while other states prefer to keep the two procedures completely separate. They fear

the reports of the Special Procedures would undermine the non-biased character of the

UPR.89

Many observers admit that while the UPR subjects states to a new kind of scrutiny that has

not been seen before, its not very probing, it cant be, and it doesnt yield a listing of so-

called concerns normally, what the human rights problems are, or corporate

recommendations, what to do about them.90 Although this may be true of the state-

prepared report and of the inter-state debate in the Council, there is a brief listing of

concerns and recommendations in the OHCHR reports, though these are often of a

generalised and weak nature. States are encouraged to accede to various treaties, yet no

86FIDH intervention, General Assembly Informal interactive hearing on the UN reform, 23-24 June, 2005,http://www.fidh.org/article.php3?id_article=2660, See also November 2006 position report, Reform ofUnited Nations Mechanisms for Protecting Human Rights: Protective Capabilities Under Threat,http://www.fidh.org/spip.php?article383087 FIDH, Statement at the Annual Meeting of Special Procedures, June 26th, 200888 ISHR, NGO Statement on Item 6 Friday, 13 June 2008,www.reformtheun.org/index.php?module=uploads&func=download&fileId=327989 Reform the UN,http://www.reformtheun.org/index.php/eupdate/313190 Sir Nigel Rodley, Interview with John Lubbock, 14 August 2008

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mention is made of the violations already committed that would be covered by those

treaties. For example, Pakistan was praised for acceding to both Covenants of the

International Bill of Rights, and the Convention Against Torture.

Although the capabilities of the UPR mechanism may seem superficial, it could have been

an even more limited body. The Asian Forum for Human Rights and Development stated

that they believed the proposal by Malaysia to restrict the review only to the rights

contained in ratified treaties to be too restrictive and contrary to the purposes of the

UPR.91 Not only this, but it would have been totally contrary to the practice of the Council

as a Charter body, and fortunately lacked support.

Case Study: Bahrain UPR

Bahrain was the first state to be assessed under the UPR. Their country report includes the

reiteration of pledges to invite Special Procedure mandate-holders, and also briefly touches

upon the substance of communications with the SPs. For example, Requests for

clarification concerning human rights defenders have been about individual complaints

about non-registration of non-governmental organizations and action taken against the

leaders of these organizations when they protest about not being granted registration.92

Bahrain also showed their commitment to the process by sending a large country

delegation to the Council to oversee its UPR, and by setting up a number of ministerial

hotlines for citizens to make complaints: the Ministry of Labour has established a special

department to deal with labour grievances. The Ministry has set up a hotline to respond to

enquiries from employers and workers on labour law.93However, the number of

complaints ministries received from migrant workers or victimised women was not

reported, and no further information was given on the hotline apart from the number itself.

In contrast, many states were eager to congratulate Bahrain on its progress:

91 Asian Forum for Human Rights and Development, 28 June 2006http://www.forum-asia.org/index.php?option=com_content&task=view&id=124&Itemid=4992 A/HRC/WG.6/1/BHR/1, Bahrain UPR self-assessment report, 11 March 2008, p14http://lib.ohchr.org/HRBodies/UPR/Documents/Session1/BH/A_HRC_WG6_1_BHR_1_E.pdf93 Ibid, p10

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Qatar: We see how keen the leadership of the Kingdom of Bahrain is to the

promotion and protection of human rights94

Slovenia: Slovenia would like to further recommend to Bahrain to remove all

reservations to CEDAW and ratifying the optional protocol to CEDAW as well

as harmonizing Bahrains domestic legislation with regard to CEDAW.95

Saudi Arabia: I can only emphasise on this occasion how much your country has

achieved in the following areas. We have noted major political will by way of

ensuring that Bahrains international commitments are implemented in order to

ensure compliance with human rights. And this has been backed by major

development, indeed a cultural, social and economic renaissance in your

country.96

UK: It is clear that Bahrain has travelled a long way on the road to democracy

since 1999 We can also see from the background report that the move

towards democracy has been accompanied by a great improvement in the

human rights situation since 1999, particularly as regards civil and political

rights and we know there are now no political prisoners in Bahrain. There

remain however a number of areas in which further progress is needed for

Bahrain to meet its obligations under the various human rights instruments.97

In none of this is any specific criticism made about Bahrains treatment of the Shia

majority, whose Al-Wefaq party contested the 2006 elections for the first time, winning 17

of 40 seats98, although another breakaway party, the Haq bloc, remains a banned

organisation99. Saeed Shehabi, of the Bahrain Freedom Movement, noted that The

94 UN Webcast, 7 April 2008, http://www.un.org/webcast/unhrc/archive.asp?go=08040795 Ibid96 Ibid97 Ibid98 Gulf News, Bahrain Opposition Storms to Victory, 27 November 2006,http://archive.gulfnews.com/articles/06/11/27/10085541.html99 The Haq party arguably represent the majority of Bahraini Shia who were opposed to the 2002constitution.

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Societies Law, passed four or five years ago, requires political parties to register. The Haq

Party didn't register, or take part in the elections; it considers the present constitution

illegitimate, since it wasn't approved by the people. Al Wefaq is in an impossible position.

Their MPs had to take an oath of loyalty to [the] constitution, although they said they didn't

accept it.100

The relative liberalisation of the electoral system came in for effusive praise by many

states, who simultaneously ignored the blatant gerrymandering engaged in by the

government in order to ensure a majority of Sunni political representation in parliament101.

However, Bahrain did admit that their consultations were not holistic, saying that The

time frame for preparation of the report represented something of a constraint with regard,

for example, to coordination with all the relevant parties.102

Of particular concern in the case of the UPR on Bahrain was how the monarchy seemed to

react once the process had been completed. The King was particularly displeased with

Bahraini human rights activists like those at the Bahrain Centre for Human Rights,

criticising their appeals to the West to be tougher on Bahrains human rights record by

saying,

We hear clearly on daily basis fake cries for help directed to the west. I say

to these who face these cries: have you not seen Abu-Graib prison (in Iraq)?

Who administrated that prison? Do you think that those people will give you a

priority in their agenda?103

This seems to confirm the fear expressed by some states that the envisaged periodicity of

the UPR might result in protection gap. [sic]104

100Saeed Shehabi, email exchange with John Lubbock, 16 September 2008101A/HRC/WG.6/1/BHR/3, summary of stakeholders submissions to Bahrain UPR, 11 March 2008, p7http://lib.ohchr.org/HRBodies/UPR/Documents/Session1/BH/A_HRC_WG6_1_BHR_3_Bahrain_summary.pdf102 Ibid, p5103 BCHR, July 23, 2008,http://www.bahrainrights.org/en/node/2367104 A/HRC/3/4, Implementation of Human Rights Council mandate, p4,http://www2.ohchr.org/english/bodies/chr/special/annual_meetings/docs/14th/A.HRC.3.4.pdf

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Why has the UPR so far seemed disappointingly ineffective? Certainly the political climate

of its creation has watered down the process significantly, so while its authority is strong in

treating all states equally, its capacity to censure and publicise the grossest violations seems

to be limited. Council President Jan Eliasson revealed many state delegations feelings on

the UPR:

Many of you have also pointed out that this review should not create a

burden of new or redundant reporting obligations, that it should not duplicate

the work of treaty bodies, and that it should be a light mechanism. Many of

you also indicated that the time allocated to the review should be limited. 105

The Cairo Institute for Human Rights Studies made a useful submission to the HRC on the

Bahrain UPR, criticising the process itself in a number of ways. They complained that

NGOs were required to submit their reports three months before the government report is

drafted, allowing the state to review these NGO submissions.106 Even worse, these NGOs

were prevented from meeting with the delegations of the Troika supervising Bahrains

UPR:

the Presidency of the Working Group on UPR told the NGO delegation that

the meeting requires the pre- approval of the country under review; a

restriction that has no basis in the procedural rules of the UPR process and is

in contradiction with the usual methods of operation at the HRC which allow

NGOs access to independent experts, rapporteurs, and state

representatives.107

Former SR on Racism Doudou Dine noted that you have to consider the UPR in a

dynamic process, because I have been disappointed by the reaction of some media, but the

media react very quickly, they dont take into account the factor of time and dynamic. So

105 Statement by Jan Eliasson, President of the General Assembly, on the draft Human Rights CouncilResolution, 23rd February 2006, p8106 CIHRS, A/HRC/8/NGO/42, Written statement on Bahrain UPR, 28 May, 2008, p2http://daccessdds.un.org/doc/UNDOC/GEN/G08/139/25/PDF/G0813925.pdf?OpenElement107 Ibid

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it is acknowledged that the UPR is a work in progress. Dine also had a promising

recommendation that would strengthen the objectivity and authority of the UPR process:

Another factor of refinement which I was solely myself advocating was that

the basic documents submitted to the Human Rights Council for each country

are looked on by the Special Rapporteur and particularly they are analysed

and recommendations should take place and they should be consulted, which

is not the case now, by the UN High Commissioner Secretariat on what

recommendations should be included in the basic document. We are not

consulted, the secretariat do their bureaucratic work, so they dont ask me for

example what I put on Canada or what I put on Colombia, or Japan, what is

the recommendation which I consider the most important. They choose what

they want without consulting us.108

Dine also felt that SP mandate-holders should have a role to play in the dialogue on the

country reports, so that where the Council debates the case of countries, we should be

present in the table and be given the right to intervene, to challenge. Because one of the

weak points of UPR is the factor of challenge. Governments are not tempted to challenge

other governments.109

However, despite these negative points, those in OHCHR feel that it is a progressive step

which could facilitate further reform in the future. As one OHCHR official comments:

I think the Universal Periodic Review is really a possible way at least of

reviewing everybody, and in this sense it is an achievement, but at the same

time, you cannot change the world in one day. And I think almost everyone

will agree with this, the worldwide context for human rights is not an ideal

one at the moment. And if you start big institutional reform in such a context,

its actually quite positive if you have certain achievements at the end.110

108 Doudou Dine, Interview with John Lubbock, 9 September 2008109 Doudou Dine, Interview with John Lubbock, 9 September 2008110 Confidential communication, OHCHR SP Secretariat Official, Interview with John Lubbock, 29 August2008

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Special Procedures

The mandate of the HRC tasks it to:

assume, review and, where necessary, improve and rationalize all mandates,

mechanisms, functions and responsibilities of the Commission on Human

Rights in order to maintain a system of special procedures, expert advice and

a complaint procedure.111

Unfortunately, given the hostility of many states to UN intervention and criticism, this

means that both country-specific and thematic mandates, as well as the independence of

mandate-holders themselves, are at risk.

The new method of appointment of mandate holders is one example of genuine

compromise between the two main rival groupings of the West and the African/OIC states.

The WEOG wanted the President of the Council to select mandate-holders from candidates

put forward by various stakeholders while the African/OIC states wanted to break with

previous practice and have states elect mandate-holders. Over the course of the

negotiations, some countries in both groups became more flexible and supported the idea of

a hybrid model that would combine appointment [by the President] with elections.112

But consensus may sometimes weaken the capacity of the Council. In 2007, there was a

Chinese-led move to curtail the Councils ability to adopt country specific mandates.113 The

EU built a majority against this move, but at the price of removing mandates on Cuba and

Belarus, continuing a trend of removing divisive country mandates, like on Iran (2002) and

Sudan (2003)114. The 2003 mandate resolution only failed by 26 to 24 votes, and there are

111 A/Res/60/251, p3http://www2.ohchr.org/english/bodies/hrcouncil/docs/A.RES.60.251_En.pdf112 Democracy Coalition Project, HRC Analysis on Government Positions on Key Issues, 2006-7, p3http://www.demcoalition.org/pdf/HRC%20Indicators%20Analysis%20Doc%20Final.pdf113 Gowan, R., Brantner, F., European Council on Foreign Relations, A Global Force for Human Rights?An Audit of European Power at the UN, p37,http://ecfr.3cdn.net/3a4f39da1b34463d16_tom6b928f.pdf114 The Sudan mandate was reinstated in 2005 following the severe human rights violations in Darfur.

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often political considerations that mean removing a country mandate is seen as a tool for

encouraging other kinds of cooperation.

Farzin Hashemi, of the Peoples Mujahedeen of Iran (PMOI) and the National Council of

Resistance (NCRI), believes that there were two factors the domestic political situation in

Iran, and the international context in the Middle-East that led to the decision on Iran. On

the domestic side, the moderate President Khatami had diplomatically started to invite

some thematic Rapporteurs, including the SR on Violence Against Women, though not the

SRs on Extrajudicial Execution or Torture. Khatami

had told the European countries that in order for him to introduce reform in

Iran he needs to have some positive elements from Western countries to

overcome his domestic problem and particularly the obstacles created by [the]

other faction115.

Tehran was then able touse the international leverage it had within the OIC

to set up a front against any criticism of Islamic countries on the pretext that

the West is hostile to Islam and our culture and their criticism of us is due to

our Islamic tradition. Simultaneously, highlighting the shortcomings of

Western countries such as the condition of immigrants in Europe, particularly

the Muslims, or cases such as Guantanamo. This tactic was useful, as even

countries which were not friendly with Tehran, for domestic reasons felt

obliged to go along with the mullahs regime. They did not want the mullahs

to present themselves to the Muslims as the only one country which defend[s]

Muslims around the world and is committed to preserve Islamic culture.116

Thus the Iranian leadership cynically used the international situation and a perception that

they had reformed domestically to line up the OIC in removing the SR on Iran or risk being

115 Farzin Hashemi, email exchange with John Lubbock, 30 August 2008116 Ibid

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seen as anti-Islamic domestically. For the HRC, moderate cooperation should not be seen

as a reason to remove a country specific mandate.

Country mandates have always been hard to set up and keep going. In the case of the

Working Group on Enforced and Involuntary Disappearances (WGEID), Argentina

accepted a resolution for a universal thematic procedure in return for not being specifically

named and shamed by a country-specific one as Chile has been.117 This trend is likely to

continue with the creation of the UPR, which Rodley believesgives states who dont want

to vote for country mandates the argument that, well, we should wait to see how UPR

goes.118

However, in cases of systematic rights abuses, Country procedures are still very important,

and their coordination with thematic mandates is necessary to ensure that they cannot be

attacked with ad personam criticisms of their work. There is no comparison between

universal and country-specific procedures, which are, according to Nigel Rodley,

following the situation consistently visiting the country once or twice a

year if permitted, and reporting annually on the nature of the problem. In

terms of activity and transparency and accountability, theres much more

going on with a country mandate.119

Flood also believed that with individual states, country-specific procedures seem to have

more impact120 than thematic ones, and it would be unfortunate if they were to disappear

altogether.

The SR, Walter Kalin, has noted that the Council still has a strong mandate to look at country

specific situations, in that GA Resolution A/RES/60/251 entitles the Council to deal with the

situation of human rights in a specific country in six different contexts. The most important of

117 Flood, P.J., The Effectiveness of Human Rights Institutions (Praeger, 1998), p55118 Sir Nigel Rodley, Interview with John Lubbock, 14 August 2008119 Sir Nigel Rodley, Interview with John Lubbock, 14 August 2008120 Flood, P.J., The Effectiveness of Human Rights Institutions (Praeger, 1998), p43

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these is the Universal Periodic Review.121 He fails to mention, however, the possibility that the

UPR could be used as an excuse for terminating other c