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I. SETTING THE CONTEXT – INSTITUTIONAL POSITIONING
II. INSTITUTIONAL AND FORMALRELATIONSHIPS
III. THEMATIC/SUBSTANTIAL RELATIONSHIPS
THE HUMAN RIGHTS COUNCIL’S RELATIONSHIP WITH OTHER ENTITIES IN PARTICULAR THE SECURITY COUNCIL
Disclaimer : views expressed in this article are those of the authors and do not necessarily reflect those of the Swiss Federal Department for Foreign Affairs. 1
The UN Human Rights Council is the central body for human rights globally. It does not exist in a vacuum from the UN and broader international systems. This article describes the Human Rights Council’s place, and the formal and informal links that exist between it and other organs, bodies and processes, both within the UN system and beyond.
The first section of this chapter briefly sets the context by explaining the institutional positioning of the Council within the UN system.
The second section concentrates on institutional and formal relationships between the Council and other entities, namely the UN General Assembly, including its Third Committee (Social, Humanitarian Cultural Affairs) and Fifth Committee (Administration and Budgetary) as well as the human rights treaty bodies, especially in the context of the Universal Periodic Review (UPR). Due to length constraints, the relationship between the Council and the UN Office of the High Commissioner for Human Rights will not be addressed in this article.
The third section analyses the relations and interactions that have developed in practice outside of formal procedures. This includes relations to UN entities, such as the Security Council, the UN Secretariat, the UN agencies, funds and programs, as well as with actors outside of the UN, namely the International Criminal Court (ICC), regional and sub-regional organisations, and the International Committee of the Red Cross (ICRC).
I. SETTING THE CONTEXT – INSTITUTIONAL POSITIONING
A Secretary General’s high level panel convened in the context of the 2005 World Summit recommended to elevate the new Human Rights Council to the level of a principle organ of the UN.2 Despite the formal recognition of human rights as one of the three pillars of the UN by the General Assembly in 2006, alongside peace and security and development,3 the Council failed to be granted the status of a principal UN organ. As with its predecessor – the Commission on Human Rights – the Council was established under the authority of a principal organ of the United Nations.4 While the former Commission reported to the Economic and Social Council (ECOSOC),5 the Human Rights Council constitutes a subsidiary organ of the General Assembly. The review process for the work and functioning of the Council conducted by the General Assembly in 2010 and 2011 did not lead to any changes to the Council’s status within the UN system.6 Nevertheless, there will be another chance to discuss the question of the status of the Council during the next review process that is supposed to take place between 2021 and 2026.7
The fact that the Council was not elevated to the status of a principal organ does not necessarily diminish the importance of human rights within the UN system. The impact the Council has on the UN system and its Member States is equally important to evaluating its effectiveness.8 There is no doubt that the Council has gained credibility and influence in recent years, especially during what is commonly referred to as the “Arab Spring”. It remains to be seen if this improvement will be sustained in the longer term as civil society space has been continuously shrinking through restrictions and repression in the past couple of years. Some commentators are convinced that more time is needed to observe the functioning and dynamics of the Council as a subsidiary organ of the General Assembly to decide if a hierarchical change is desirable and necessary.9 From a political point of view, however, it seems unrealistic to think that at present Member States could envisage the creation of a new principal organ and the associated substantial modification of the UN Charter. It is therefore preferable to concentrate analysis and efforts on reinforcing the Council’s effectiveness within its current configuration and to facilitate, as far as possible, its interaction with other UN bodies interested or engaged in human rights issues.
In his report of the 2005 World Summit, the former Secretary General, contrary to the high level panel, does not take position on the question of where the Council should be placed in the hierarchy of the United Nations system. Nevertheless, deeply aware of the importance of human rights and the fact that other UN bodies are also dealing with human rights to a certain extent, Kofi Annan highlighted the need to determine channels of interaction between the new Council and these other entities10, in particular the human rights treaty bodies, UN agencies, funds and programmes, the Security Council, ECOSOC, and the Peace Building Commission (PBC). He further stated that the Council ‘should have the authority to recommend policy measures to other organs of the United Nations’.11 This showed the importance the Secretary-General attributed to the Council and its interaction with other UN entities to strengthen the third pillar of the UN – human rights, even though he did not take position on the question of the hierarchical status of the Council in the UN system.
In practice, however, even though ECOSOC has a mandate to address human rights issues, no formal or even informal interaction between ECOSOC and the Council has developed. This can also be observed for the PBC, whose report to the General Assembly and the Security Council outlining its activities of 2013, for example, does not once mention ‘human rights’.12 PBC’s seventh report in 2014 does however mention ‘human rights’ but only once.13 As far as the treaty bodies, UN agencies, funds and programmes and the Security Council are concerned, formal and informal interaction with the Council has been developing and improving, which will be analysed further below.
The fact that the Human Rights Council has been established as a subsidiary organ of the General Assembly constrains the possibilities for its interaction with other UN bodies. The General Assembly itself has a prescribed and limited authority, and it is arguably outside the competence of the Assembly to set the relationships the Council should have with other UN entities.14 The legal relationship (e.g. the competence and powers as well as processes for interaction) between the Human Rights Council and other organs of the United Nations such as the Security Council, ECOSOC and PBC needs to be consistent with the UN Charter. The General Assembly Resolution A/RES/60/251 of 3 April 2006 that created the Council regulates therefore primarily the relations between the Assembly and the Council.15 The resolution does however invite in general terms the Council to ‘promote the effective coordination and the mainstreaming of human rights within the UN system’.16 This role of coordination attributed to the Council by its founding resolution only took shape during the review process in 2010/11, when an annual half-day panel discussion was introduced on the objective of promoting the mainstreaming of human rights throughout the UN system.17 As indicated above, this institutional form of interaction between the Council and the other UN bodies is quite limited but no other has been established or developed so far.
This article is divided into two main parts; the first part will concentrate on the institutional relationships which exist between the Council and other entities (II.), namely the Assembly, its Third Committee (Social, Humanitarian and Cultural Committee), its Fifth Committee (Administrative and Budgetary Committee) and the human rights treaty bodies (especially in the context of the Universal Periodic Review). The second part will then examine the informal interactions that came into practice outside of established procedures (III.). This will include relations with UN entities such as the Security Council, the UN Secretariat and the Funds and Programs, as well as with non-UN bodies and stakeholders, such as the International Criminal Court (ICC), regional and sub-regional organisations and the International Committee of the Red Cross.
The present article will not only deal with the formal and informal relations of the Council in the strict sense of the term (the intergovernmental body) but also the different relations that its specific mechanisms entertain with other entities (in particular its special procedures and commissions of inquiry).
II. INSTITUTIONAL AND FORMALRELATIONSHIPS
A. General Assembly
As mentioned above, the Human Rights Council being a subsidiary organ of the General Assembly, institutional links exist between the two organs. Even though importantly the Council displays relative independence, it still interacts in different ways with the General Assembly. This section analyses the different institutional relations that exist between the Assembly and the Council. Firstly, the Assembly is the founding body of the Council and therefore also determines, or at least has the final say concerning, its procedures (i); secondly, although the Council enjoys considerable autonomy, its normal functioning involves formal responsibilities towards the Assembly (ii); and thirdly, new interactions have developed under specific circumstances concerning Council membership (iii).
(i) Constitutional Links
From an institutional viewpoint, the Assembly created the Council with resolution 60/251, under which it formulated the general outline of the Council’s structure and mechanisms and defined its basic rules of procedure. The Assembly decided that ‘the Council shall apply the rules of procedure established for committees of the General Assembly, as applicable, unless subsequently otherwise decided by the Assembly or the Council’.18 Even though the Council had significant autonomy in establishing its procedures, these still had to be validated by the General Assembly. This process can be observed with Council resolution RES/5/1 of 18 June 2007, which determined specific rules applying to the Council’s functioning as well as the functioning of the UPR, Special Procedures, Advisory Committee and Complaints Procedure. This resolution was approved by the General Assembly in its resolution 62/219 of 22 December 2007 effectively affirming the above-mentioned rules of procedure initially defined by the Council. The same course of action was followed for the review process of the Council in 2010/11, where the Assembly approved in its resolution A/RES/65/281 of 20 of July 2011 the results of the Council’s review process adopted in the Council’s resolution A/HRC/RES/16/21. A strong constitutional link between the General Assembly and the Human Rights Council therefore exists.
Furthermore, it can be noted in relation to the constitutional link between the two organs, that the Assembly also has a responsibility for electing the members of the Council and for revoking or suspending members under specific circumstances (see sub-chapter (iii)).
(ii) Substantive Links
The Council enjoys great autonomy in the exercise of its mandate. The basis for this autonomy can be found in General Assembly Resolution 60/251 where the mandate of the Council is broadly defined and makes reference to the promotion of ‘universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind in a fair and equal manner…’ and the need for the Council to ‘promote the effective coordination and the mainstreaming of human rights within the United Nations system’.19 This broad definition of the tasks of the Council allows for the necessary flexibility in the fulfilment of the mandate.
Nevertheless, the Council does have a few obligations towards the Assembly, as outlined in resolutions 60/251 and 65/281. These relate to the report on the activities of the Council that has to be submitted annually to the Assembly.20 Whereas the former Commission on Human Rights had to submit the annual report to the Assembly via the ECOSOC, the new rules are an improvement as they allow for a direct transmission of the report of the Human Rights Council to the General Assembly. The Council’s report comprises a compilation of all the resolutions that have been adopted during the relevant period.21 The Council’s report initially covered a period of one year, from 1 August to 30 June. This, however, created problems as the President of the Council (elected at the end of June) had to present the report to the Assembly later in the year without having presided over any of the three Council sessions the report covers, as the sessions are in September, March and June. During the review process for the Council in 2010/11, it was decided to adjust the Council year to the calendar year (1 January to 31 December)22 so as to allow the President of the Council to report to the Assembly on the period from 1 October to 30 September. The President therefore presents to the Assembly all three Council sessions that he or she chaired. Formally, the Assembly validates the report via a short resolution prepared in the Third Committee, which reads as follow: ‘takes note of the report of the Human Rights Council including the addendum thereto, and its recommendations’.23
Apart from the report that is presented on an annual basis, Assembly resolution 60/251 outlines (in paragraph 5c) another area of interaction between the Assembly and the Council: ‘make recommendations to the General Assembly for the further development of international law in the field of human rights.’ In this regard, the former Commission on Human Rights was the trigger for the development of several important human rights instruments, including the 1948 Universal Declaration on Human Rights and the 1966 Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights. Because the Council is only a few years old, its work in this respect is so far more modest but nonetheless important. It was able to adopt and submit to the Assembly the International Convention for the Protection of all Persons from Enforced Disappearances24, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights on a communication procedure25 and the Optional Protocol to the Convention on the Rights of the Child on a communication procedure26. All of these human rights instruments were adopted by the Assembly and are now open to ratification. The Council has also submitted to the Assembly soft law declarations such as the United Nations Declaration on Human Rights Education and Training that was subsequently adopted by the Assembly.27
The two main substantive links between the Human Rights Council and the General Assembly are therefore the submission of the annual report and the development of international law through the elaboration of hard and soft law conventions and declarations to be adopted by the Assembly.
It can be observed that the General Assembly is not particularly active on its own in the area of human rights: as mentioned, it takes note of the reports of the Council ; it also takes over the resolutions that are prepared by the Third Committee most of the time without modifying them. Some remain critical of this relative passivity of the Assembly in regard to proposals coming from the Human Rights Council and the Third Committee.28 Nevertheless, the Assembly has been proactive in the case of Syria where several resolutions were adopted.29 In this regard, Assembly Resolution 67/262 of 4 June 2013 even provided for a briefing of the Assembly by the Independent Commission of Inquiry (COI) on Syria that has been created by the Council.30 This briefing, which took place on 29 July 2013 in New York, was the first time that a COI created by the Council was invited to brief the Assembly on a country specific situation.
(iii) Special Circumstances: Suspension of a Council Member
The General Assembly has not only the power to elect the Council’s members but has, as previously mentioned, also the power to remove them. Resolution 60/251 provides that ‘the General Assembly, by a two-thirds majority of the members present and voting, may suspend the rights of membership in the Council of a member of the Council that commits gross and systematic violations of human rights’.31 At the outset it had seemed improbable that this unprecedented provision would be applied to a specific case as it is politically sensitive and difficult to engage and implement. Yet the exceptional circumstances that prevailed in the context of the Arab Spring, especially with the Libyan revolution, allowed for the application of this provision in a unique case.
The Assembly suspended the right of Libya to sit in the Council between 1 March 2011 and 19 November 2011, due to the gross and systematic human rights violations committed by the Libyan authorities.32 What is interesting to highlight is that the suspension of Libya was proposed to the Assembly by the Council, even though the authority to suspend membership rests only with the Assembly. In OP 14 of its resolution adopted during the special session on the situation in Libya of 25 February 2011, the Council ‘ recommends that the General Assembly, in view of the gross and systematic violations of human rights by the Libyan authorities, consider the application of the measures foreseen in paragraph 8 of General Assembly resolution 60/251.’33
After the new authorities were in place in Libya and they agreed to respect human rights and cooperate with the High Commissioner for Human Rights, as well as with the International Commission of Inquiry that was created by Council resolution S-15/1 of 25 February 2011, it was again for the Council to suggest to the Assembly to reinstate Libya as a member of the Human Rights Council. The specific resolution 18/9 of 29 September 2011 ‘recommends that the General Assembly lift the suspension of the rights of membership of Libya in the Human Rights Council at its current session’.34 This procedure further outlines the important and strong relationship between the Assembly and the Council and the independence of the Council in making recommendations to the Assembly.
B. Third Committee
(i) Third Committee vs. Human Rights Council
Unlike the Council, the mandate of the Third Committee of the Assembly is not limited to human rights. Even though in practice the Third Committee dedicates an important portion of its time to human rights resolutions, its competence encompasses social, humanitarian and cultural issues. Human rights are addressed by the Third Committee in a manner similar to that of the Council: the Committee adopts thematic resolutions as well as country resolutions (although only four) which are then formally approved by the Assembly and organises interactive dialogues with the special procedures of the Council when their mandates provide for reports to be presented to the Assembly.35 One of the main differences to the Council, however, is that the Third Committee has no competence to create its own special procedures. This gives the Council additional leeway and added value. It nevertheless has to be noted that the Third Committee can create specific mandates of Special Advisors to the Secretary General (SASG) or Special Representatives of the Secretary General (SRSGs), although it is for the UN Secretary General to nominate them. They remain under his authority. This has been the case for the SRSG on Children and Armed Conflict, the SRSG on Violence against Children and the SASG on Myanmar.
(ii) Thematic and geographic relation with the Human Rights Council
There are several links between the Third Committee and the Council; some have existed since the establishment of the Council and others have developed over time.
First, there is a close thematic relation between the topics addressed by the Council and those by the Third Committee. Several thematic issues and four country situations are dealt with by both organs, leading to the adoption of similar resolutions. Examples include resolutions on Iran, Myanmar, DPRK, Syria, Torture, Enforced Disappearances, Right to Food, Violence against Women, Migrants and Older Persons. For instance, almost half of the topics addressed in resolutions adopted by the Third Committee during the 67th session of the Assembly were also the subject of resolutions adopted by the Council.36
Paragraph 117 of resolution 5/1 of the Council tried to persuade States, as authors of resolutions, to avoid duplication between the Council and the Third Committee: ‘there is a need for minimizing unnecessary duplication of initiatives with the General Assembly/Third Committee’. Unfortunately, this call for rationalisation did not result in a decrease of duplication. According to a 2015 study of the think-tank Universal Rights Group, in 2012/2013, only 13 resolutions of the Third Committee out of 48 contained no overlap with their closest Council counterpart.37
It remains difficult to persuade States to refrain from presenting initiatives in both bodies on topics that are of importance to them or at least to ensure that resolutions have a different focus and a complementary approach. In some instances, some sort of division of labour can be observed: the resolution adopted in the Third Committee encompass all facets of a topic while the Council resolution looks at a specific aspect or context of that topic.
Secretary-General Kofi Annan in 2005 would have hoped for a better division of tasks between both organs in order to rationalize the agenda of the Third Committee. According to him, the Council should deal with analytical reflexions and in-depth analysis of the substance of the different human rights issues while the Third Committee should mainstream the conclusions and recommendations of the Council throughout the entirety of the UN system. This would allow to ‘rationalize the agenda of the Third Committee’.38 However, the Third Committee has failed on several occasions to seize the opportunity to enhance the mainstreaming of human rights, by instead only repeating the work done by the Council.39
A number of countries are of the view that having another resolution on the same topic in the Third Committee is needed in order to ensure legitimacy, as there is universal membership in the Third Committee. In this regard it can be highlighted that a change in the working methods of the Third Committee would be highly beneficial. The next Council review could be the occasion to request the Third Committee to focus more on ensuring a better coherence of the action of the different UN actors dealing with human rights issues, particularly on the ground.
Some States are conscious of these difficulties and are trying to address them. Turkey and Norway have prepared a common statement in the March 2014 session of the Council in order to, inter alia, encourage States to avoid overlapping resolutions on the same subject at the Council and the Third Committee or at least to ensure that their content is complementary and of added-value.
(iii) Dialogue vs. Control
The second important link between the Council and the Third Committee pertains to the interactive dialogue, which is held in the Third Committee after presentation of the annual report of the Council. The underlying rationale for this dialogue stems from the difference between the Council and the Third Committee with regard to relative compositions. As said before, while the Council has only 47 Member States, the Third Committee is universal. A number of countries, including those with no representation in Geneva, insisted that the annual report of the Council be discussed in an interactive dialogue in the Third Committee. This request of a number of countries was also motivated by political considerations.
As the Council is a subsidiary organ of the Assembly, it should in principle only report to the Assembly. A number of countries have requested and obtained that the Council reports also to the Third Committee (a subsidiary organ of the Assembly) in order to limit the importance of the Council in the UN system and diminish its influence. Subsequently, a double reporting, both to the Assembly and the Third Committee, became institutionalised in OP 6 of resolution 65/281 in which the Assembly ‘ decides also to continue its practice of allocating the agenda item entitled ‘Report of the Human Rights Council’ to the plenary of the General Assembly and to the Third Committee, in accordance with its decision 65/503, with the additional understanding that the President of the Council will present the report in her or his capacity as President to the plenary of the General Assembly and the Third Committee and that the Third Committee will hold an interactive dialogue with the President of the Council at the time of her or his presentation of the report of the Council to the Third Committee’.40
Additionally, and as mentioned above, it is also the Third Committee and not the Assembly that validates the report of the Council via a resolution of the African Group. Because the Third Committee is also a subsidiary organ of the Assembly it lacks legal authority over the Council. Nevertheless, this process for dealing with the Council report was established and continues to satisfy a number of countries. Until 2013, this practice was not harmful as a short resolution simply took note of the Council report and recommendations.41 Only in one instance, it could have led to difficulties. In 2011, the initial draft resolution was reading as follows: ‘takes note of the report and noted with concern some of the recommendations contained therein’, which was implicitly referring to the recommendations of resolution 17/19 on “human rights, sexual orientation and gender identity” strongly opposed by a number of countries, in particular African and OIC countries. Ultimately the African Group orally revised the resolution to use the usual wording, nevertheless it came to vote.42
In 2013, the Third Committee set a problematic precedent. In fall 2013, the initial draft resolution explicitly suggested to defer consideration of Council resolution 24/24 on ‘Cooperation with the United Nations, its representatives and mechanisms in the field of human rights.’ This resolution decides to designate a United Nations-wide senior focal point to engage with all stakeholders, in particular Member States, to promote the prevention of, protection against and accountability for reprisals and intimidation related to cooperation with the United Nations. According to the African Group, the Council cannot intervene at the wider UN system level without a prior discussion in the Third Committee with universal membership. Nevertheless, according to resolution 60/251 ‘the Council should also promote the effective coordination and the mainstreaming of human rights within the United Nations system’. In practice, the Council intervenes even regularly at the wider UN system level (requesting SRSGs to participate in discussions or funds and programs to engage on specific topics) and requests actions from the Secretary General (for example the report on death penalty or on reprisals related to cooperation with the United Nations). A number of countries lead by the EU and the USA deposited an amendment in order to not allow for such a precedent but lost the vote.43
Unfortunately, this bad precedent was confirmed by the Assembly44. The situation on this resolution is note resolved to date (the idea of the President of the General Assembly to nominate co-facilitators was abandoned on 28 August 2015). This precedent could lead in the coming years to a reopening of the Council’s report by the Third Committee on contested issues, such as sexual orientation.
C. Fifth Committee
The Fifth Committee of the General Assembly is in charge of administrative and budgetary questions. It has therefore a strong link to the Council’s work through funding of the Office of the High Commissioner for Human Rights (OHCHR), which acts ‘as a secretariat of the Council’.45 The Fifth Committee is responsible for allocating the necessary funds to the OHCHR in order to allow the Council to function properly and to put into practice the decision it has taken. This includes costs related to the support to special procedures and Commissions of Inquiry, the elaboration of reports, as well as the organisation of meetings, seminars and other events. While not usually a high profile for the Council, issues of funding are often central to the OCHHR being able to deliver on the Council’s decisions and its broader human rights programme of work. Depending on the decisions of the Fifth Committee, the OHCHR will therefore receive a certain budget in order to allow the Council to function and to implement the decisions the Council has taken.
During the review process of the Council in 2010/11 it became necessary to request the Fifth Committee to treat funding demands by the Council more swiftly. Decisions with financial implications that the Council took during the regular September sessions were usually only treated by the Fifth Committee late the following year. The reason for this is that the Council’s annual report submitted to the Assembly included the period from September to June the following year.46 In addition, the funds allocated in the end were often lower than what the OHCHR had already spent to implement Council decisions. As mentioned above, the Assembly decided during the review process to change the time period covered by the annual report and ‘to consider through its Fifth Committee all financial implications emanating from the resolutions and decisions contained in the annual report of the Human Rights Council, including those emanating from its September session’.47 This allows now for a swifter allocation of the necessary funds to the OHCHR in order to implement the decisions taken by the Council and strengthens the relation between the Council and the Fifth Committee via the OHCHR.
Another issue concerns the funding of decisions taken during special sessions of the Council. In those circumstances the Fifth Committee had failed to adequately respond. This was the case for the special session of the Council on Côte d’Ivoire (23 December 2010), Libya (25 February 2011) and Syria (several special sessions between 2011 and 2012).48 In some of these sessions, the Council decided to put in place mechanisms to follow up on situations with important financial implications. In order to guarantee the allocation of the necessary additional funds, a new paragraph was introduced during the review process of the Council recognising ‘the need to provide adequate financing to fund unforeseen and extraordinary expenses [UEE] arising from resolutions and decisions of the Human Rights Council’.49
The situation in recent years has improved with regard to both above-mentioned points through the alignment of the Council cycle on the Assembly cycle and the change in the period that the annual report covers as well as with the introduction of a paragraph on funding of UEE (Assembly resolution A/RES/66/258). The UEE has been used in 2012 in the context of the extension of the CoI on Syria.
However, there remains one structural problem that has not yet been properly addressed. Between 2011 and 2013, the Council created approximately fifteen new mandates and additional assignments (requests of reports, organisation of panels on new topics, etc.). The Fifth Committee did not fully fund the costs of these new tasks. This compelled the OHCHR to cover part of those expenses through its own budget (provided by voluntary contributions of States). As a result the OHCHR had to terminate certain useful activities pertaining to its general mandate (promotion and protection of human rights) in order to fulfil its tasks as Secretariat of the Council.
It is worth noting that certain States advocating in favour of the creation of costly new mandates, such as the CoIs on Syria, the DPRK and Eritrea, show reticence when it comes to the financing of these same mandates in the framework of the Fifth Committee.
Despite repeated calls by the Presidents of the Council (especially during their annual visits to the Assembly), by the High Commissioner for Human Rights and by a group of like-minded States50 trying to ensure that all the mandates decided by States in the framework of the Council are fully financed by the regular budget of the UN, the difficulties remain.
It is problematic that voluntary contributions to the OHCHR meant to finance its activities as the UN agency in charge of the promotion and protection of human rights, be used to fulfil its tasks as secretariat of the Council and implement decisions and resolutions taken by the international community as a whole. On the longer term, this situation could severely impair the work of the OHCHR.
D. Treaty Bodies
The relationship between the Council and the treaty bodies can be divided into formal and informal interaction.
The formal interaction with the treaty bodies takes place within the framework of the Universal Periodic Review (UPR) process of the Council. The UPR is based on three documents: information provided by the State under review, contributions of non-governmental organisations and information from the UN system and its human rights mechanisms. The latter source is based on reports of Special Procedures, UN entities and human rights treaty bodies collated by the OHCHR.51
The participation of Treaty bodies in the UPR process is limited as they cannot submit contributions to the UPR of States which are not a party to the respective treaty. In addition, their contributions are limited to the human rights covered by their mandates. The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990) for example has at present only been ratified by 48 States, therefore limiting the contributions that the related treaty body has been able to give to date.52 On the other hand, some conventions monitored by treaty bodies have been ratified by a vast majority of States and cover a broad range of human rights, allowing for more detailed analyses of the concerned human rights and a more substantial contribution to the UPR process.53
Another formal link that relates the Council to the treaty bodies is the complaint procedure of the Council. The complaint procedure allows victims of human rights violations to send communications to the Council. Paragraph 87 of resolution 5/1, which sets out the criteria of admissibility of complaints, purports under letter F that complaints are not admissible if they ‘refer to a case that appears to reveal a consistent pattern of gross and reliably attested violations of human rights already being dealt with by a special procedure, a treaty body or other United Nations or similar regional complaints procedure in the field of human rights’. This disposition is supposed to prevent duplications in the work done with regard to a specific situation of human rights violation, while at the same time making it necessary for the complaint procedure to analyse the work of treaty bodies. In reality, this condition of admissibility was imposed by certain States to restrict the scope of the complaint procedure.
In addition to the formal relationships referred to above, informal relations have also developed in recent years. In particular, the exchange of views between the special procedures of the Council and the treaty bodies has become more intensive. This is particularly useful as some treaty bodies and special procedures cover the same human rights, despite having different mandates. The Human Rights Committee, which is the treaty body of the International Covenant on Civil and Political Rights, and the Committee on Economic, Social and Cultural Rights cover a large spectrum of rights and therefore maintain informal relations with a number of special procedures. The connections are however more specific in other areas as for example the prevention of torture (Special Rapporteur of the Council, Committee against Torture and Subcommittee on Prevention of Torture) or the human rights of children (Committee on the Rights of the Child, Special Rapporteur on Education, Special Rapporteur on the Sale of Children).
These informal relations between the mechanisms of the Council and the treaty bodies allow for greater consideration of the work done by one another and ensure coherence in the interpretation of the different human rights. As the Chairs of the treaty bodies have stated: ‘information from the reports of country-specific and thematic special procedures mandate holders is routinely provided to treaty bodies by OHCHR, and treaty bodies regularly interact with special procedures. This interaction may be related to the reporting process, discussion days, general comments or other issues related to the committees’ work. In some cases, regular coordination with special procedures is mandated by treaty: this is the case, for instance with the Committee on Enforced Disappearances. Some committees have appointed a focal point to interact with special procedures.54 It can be observed that this informal exchange of views becomes more relevant with the growing work of treaty bodies and the Council.
Not only the mechanisms of the Council but also the Council itself have shown interest in the work of the treaty bodies in a number of its resolutions. Some States, which are particularly keen to preserve the independence of the treaty bodies, ensure during negotiation of resolutions that the Council promotes exchanges55, fosters common consideration of human rights issues56 and takes into account the work done by the treaty bodies57 without interfering in their functioning and infringing their independence.
III. THEMATIC/SUBSTANTIAL RELATIONSHIPS
A. Security Council
(i) The Security Council and Human Rights
The Security Council has shown increased interest in human rights through both its country and thematic resolutions. In 2006, the year in which the Council was created, human rights were only mentioned in 27% of Security Council resolutions, whereas in 2013, the number has gone up to 74%.58 This increase became particularly noticeable during the Arab Spring.59 The increased number of references to human rights in Security Council resolutions is not the only indicator of the Council’s interest in the matter. Indeed, while the Security Council had only invited the High Commissioner for Human Rights to brief it on a few occasions before 2011 (only to speak during the debates on protection of civilians), in 2011 Navi Pillay was invited to brief the Security Council four times60 and in 2012, six61 (three and four times respectively in 201362 and 2014.63 ). The majority of these briefings were related to country situations (Côte d’Ivoire, Libya, Israel/Palestine, Sudan and South Sudan) and some briefings were on the protection of civilians. In 2015 again the High Commissioner regularly briefed the Security Council mainly on country specific situations (Syria, Libya, Sudan, South Sudan and Ukraine).
The Security Council deals with human rights in different ways. First of all, in its country resolutions, the Security Council typically insists on the necessity that human rights be respected by the different actors of the conflict,64 condemns human rights violation65 and encourages accountability of perpetrators of human rights violations.66
Furthermore, the Security Council has integrated to some extent human rights in its own functioning, in particular, in relation to the fight against terrorism67 and in the area of sanctions.68
The Security Council also ensures that human rights are part of the peace operations it deploys, as the example of MINUSMA in Mali shows. Resolution 2100 includes in the mandate the monitoring, investigation and reporting of human rights violations and in addition the task ‘to support, in particular, the full deployment of MINUSMA human rights observers throughout the country’69 According to the High Commissioner for Human Rights, ‘in 2013, there were 15 UN peace operations and political missions mandated by the UN Security Council to promote, protect and monitor human rights’.70
Furthermore, the Security Council now regularly refers to human rights in its thematic resolutions. One example is resolution 2106 of 24 June 2013 on sexual violence in armed conflict.
That being said, the Security Council is only mandated to react to threats against international peace and security. In the past, human rights violations committed inside a country were not often considered by the Security Council as a threat against international peace and security. This approach has evolved and the Security Council now regularly examines situations of human rights violations. One example is the situation in Egypt, which had for the first time in many years been the subject of an official meeting of the Security Council on 15 of August 2013. As far as the Council is concerned, it has been unable to address the human rights situation in Egypt; it was perceived by some NGOs as a setback considering the positive developments in the Council since the beginning of the Arab Spring.
Even though the Security Council increasingly takes into account human rights issues in its country resolutions, it has been unable in recent years to act on certain situations despite severe human rights violations taking place. In 2007 China and Russia prevented the adoption of a resolution on Myanmar, arguing that the human rights violations taking place were not a threat to international peace and security and that the Security Council was therefore not the right body to address the situation.71 As a consequence, no resolution on Myanmar was adopted. It is interesting to note that Indonesia and Russia, which were also at the time members both of the Security Council and the Human Rights Council, expressed a preference that the Human Rights Council should deal with the situation in Myanmar.72 The Council (as well as the Assembly) has effectively been dealing with Myanmar for years including through regular dialogues with the Special Rapporteur on Myanmar.73
The same arguments were used to prevent the adoption of a resolution on Sri Lanka by the Security Council in 2009. The only UN resolutions on the situation in Sri Lanka have been adopted by the Council.74 As a consequence of the inadequacy of the UN response during the heavy fighting taking place in Sri Lanka in 2009, the UN Secretary General convened on 22 of June 2010 a panel of experts, tasked with establishing responsibilities for the violence. One of the main recommendations of the expert panel submitted on 12 of April 2011 is for the Secretary General to examine the actions taken by the UN ‘regarding the implementation of its humanitarian and protection mandates’.75
The Secretary General decided to appoint a second panel of experts led by the Deputy Secretary General Charles Petrie with the aim of ‘identifying institutional and structural strengths and weaknesses […] and making recommendations on strengthening […] the capacity of the UN as a whole to respond effectively to similar situations of escalated conflict’. The report of this second panel was published on 12 November 2012 and places human rights at the heart of its recommendations.76 According to this report, a rapid and coordinated reaction by the UN bodies, including the Security Council, in cases of human rights violations could prevent the emergence of more serious crises. Efforts are being made within the UN in order to implement the recommendations of the Petrie report and the subsequent plan of action (‘Human Rights Up Front’) established by the Secretary General in 201377. There is no doubt that these efforts will further increase the importance the Security Council and the UN system as a whole already attribute to human rights.
It might also encourage the Security Council to engage more on the question of accountability in the case of grave human rights or international humanitarian law violations as its practice on this important aspect lacks coherence and consistency.
(ii) The Security Council and its interest in the work of the Council
The growing interest of the Security Council in human rights can also be observed through its consideration of the work of the Council. The Security Council is more aware of the actions and decisions taken by the Council, in particular on specific country situations. The Arab Spring was one of the decisive factors in this regard, as both organs were confronted with the same country situations, namely Yemen, Libya and Syria.78
The Security Council has referred in several cases to either Council resolutions or activities of its special procedures and commissions of inquiries, as can be observed in Security Council resolutions S/RES/2014 (2011) on the situation in Yemen.79 Additionally, the Security Council resolution 2040 (2012) on Libya takes note of the report of the COI on Libya established by the Council, and Security Council resolution 2099 on the Western Sahara (2013) refers to discussions between Morocco and certain special procedures of the Council.80
It is important to highlight that in turn the Council refers to the Security Council in its resolutions, but only sporadically, since some States prefer avoiding references to the Security Council. Indeed, the influence of these States on the Security Council is limited and they consider that it is not representative of the international community as a whole. Three examples are resolution 25/28 on the Occupied Palestinian Territory, resolution 25/23 on Syria81 and resolution 23/25 on violence against women. It is worth noting that some permanent members of the Security Council are also not keen on mentioning the Security Council’s resolutions as they want to protect the former from the influence of other entities.
Some mechanisms of the Council have been interacting with the Security Council. This is particularly the case for the COI on Syria, which briefed the Security Council 5 times between 2012 and February 201582 and for the Independent Expert on the Democratic Republic of Congo.83 However, these interactions did not take place during the official meeting of the Security Council but during informal meetings (‘Arria formula’).84
Furthermore, once or twice a year since 2010, the Security Council Committee established pursuant to resolution 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and entities have had consultations with the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.
(iii) Lack of Direct Communication between the Security Council and the Council
Bertrand G. Ramcharan, former Deputy High Commissioner for Human Rights, stresses that ‘where there are violations of human rights that might threaten international peace and security, the HRC should communicate with the Security Council. Habits of cooperation should be developed between the UN’s main human rights body and the lead peace and security organ’85. It seems indeed desirable that all UN entities dealing with crises cooperate extensively in order to optimise the impact of UN activities. Unfortunately, to date, efforts to allow for direct interaction between the Security Council and the Council have failed due to systematic opposition by some States and certain permanent members of the Security Council as mentioned above.
Indeed, in their view, the Council being a subsidiary organ of the Assembly, it should not be allowed to directly communicate with main UN bodies, especially with the Security Council. They argue that if the Council wishes to directly interact with the Security Council, it should be done through the Assembly. This argument seems legally accurate but only partially as it does not take into account the fact that the Assembly itself in its resolution 60/251 gives to the Council the mandate to ‘promote the effective coordination and the mainstreaming of human rights within the United Nations system‘, which comprises the different UN organs, including the Security Council. Moreover, if the Council is not a main organ of the UN, it is the principal UN organ dealing with human rights and it should therefore be able to engage with other UN organs working on human rights issues. When preparing the creation of the Council, the former Secretary General underlined in his report that the Council ‘should have the authority to recommend policy measures to other organs of the United Nations’86. Even though, no formal channel of cooperation has been opened between the Human Rights Council and the Security Council.
Despite the restrictive interpretation systematically imposed so far to avoid any precedent allowing for direct contacts between the Council and the Security Council, the Council addressed the Security Council in a few instances.
This happened in the case of the report of the United Nations Fact-Finding Mission on the Gaza Conflict, led by Richard Goldstone. Council Resolution 16/32 of 13 April 2011 recommended that the Assembly submit the report of the FFM to the Security Council to take action, in particular by referring the situation to the International Criminal Court (ICC). The Assembly, however, hasn’t acted upon this recommendation by the Council so far.87
On Syria, a large number of States considered that the Security Council should refer the situation to the ICC.88 Despite their efforts, it was initially not possible to include this recommendation explicitly in Council resolutions on Syria, as they faced opposition from some States for the above-mentioned reasons, as well as from permanent members of the Security Council who cannot accept that a subsidiary organ of the Assembly try to influence the Security Council, especially not on such a sensitive topic. Even though the Council was unable to make this recommendation to the Security Council, some of its mechanisms did. The special procedures of the Council as a whole89 as well as the COI on Syria90 recommended to the Security Council to refer the situation in Syria to the ICC.
If no direct channel of communication between the Council and the Security Council was established in the context of Syria, certain paragraphs of Council resolutions on Syria could be read as providing for a submission of the report of the COI to the Security Council and the Assembly. While the first resolution on Syria (29 of April 2011) did not refer to any form of transmission, the second resolution (23 of August 2011) suggests an indirect transmission through the Assembly (like the Goldstone report) and implicitly refers to the Security Council: ‘Decides to transmit the report of the Commission of inquiry and the update thereto to the General Assembly, and recommends that the Assembly transmit the reports to all relevant bodies of the United Nations’.91 The third resolution (2 of December 2011) went further by recommending directly to the main bodies of the United Nations to ‘urgently consider the report of the commission of inquiry and take appropriate action’.92 The fourth resolution (23 of March 2012) was even more specific and recommended that the main bodies take appropriate action ‘to address human rights violations, as well as crimes against humanity that may have been committed’.93 This can be read as an indirect suggestion for the Security Council to refer the situation in Syria to the ICC. The following resolutions (11 of June 2012, 26 of July 2012, 28 of September 2012, and 22 of March 2013) called on the relevant United Nations bodies to take appropriate action without any specific objective. After March 2013, the Council resolutions (25 of May 2013, 10 of June 2013 and 26 of September 2013) neither make a reference to a transmission of the reports to the Security Council94 nor mention the transmission more generally.95
It is worth noting that this point was intensively discussed in 2011 and 2012 as a number of States were hoping that this transmission could encourage the Security Council to respond to the situation in Syria, in particular by referring the situation to the ICC. Nevertheless, because the Security Council has been unable to adopt a resolution despite the numerous calls made by the Council, States have demonstrated less interest in this referral language in 2013. As a consequence, no State raised concerns about the fact that this language was not included in the resolutions on Syria of the 23rd and 24th sessions of the Council. In 2014 and 2015, the wording related to the transmission of the reports of the COI to the Security Council and to the need for a referral to the ICC improved drastically as France, supported by the UK, decided to actively promote a referral to the ICC in the Security Council. Even if the attempt of France and UK unfortunately failed because of the veto of the Russian Federation and China (the 13 other member States voted in favour on 22 May 2014), the improved language is still to be found in the resolutions on Syria of the Council.96
The inactivity of the Security Council on Syria has had another effect on the Council’s resolutions. Indeed, in order to circumvent the inability of the Security Council to tackle the Syrian situation, some permanent members of the Security Council and influential countries of the region used the Council’s resolutions on Syria to include paragraphs dealing with peace and security and with the endorsement of some political decisions of regional organisations such as the League of Arab States97. In doing so, these States used the Council as a sort of ‘Security Council of Human Rights’ thereby going beyond the human rights mandate of the Council.
(iv) Useful but Sporadic Links
In its resolutions and debates, the Security Council now refers increasingly to the work of the Council and its mechanisms.98 It is even possible to say, that in certain country situations, the Council paved the way for the Security Council: ‘if you take the Libyan example, the Human Rights Council dealt with it first, and within hours, the Security Council was saying the same thing. This was not a coincidence. In a way, the Human Rights Council generates the activity within the Security Council, and similarly, if the Security Council now acts on Mali, it acts on the basis of the information coming from the Office of the High Commissioner for Human Rights and from the Human Rights Council.’99
In a few cases, it is possible to observe a good collaboration and coordination between the Council, the High Commissioner for Human Rights and the Security Council. In 2012 for example ‘the OHCHR’s office in DRC and the UN Mission in the Congo (MONUC) conducted a joint mission […]. This mission led to an additional visit by the Special Rapporteur on the question of extrajudicial, summary or arbitrary executions between 16 and 22 of June 2012. Focusing on the main findings of the Special Rapporteurs’ mission, the High Commissioner submitted her own report to the Security Council.’100
It is regrettable, however, that the Security Council adopted a much more restrictive attitude when it comes to inviting COIs or special procedures of the Council to participate in its meetings. Indeed, the rare briefings with these Council’s mechanisms took place only in an informal setting (‘Arria formula’). When the Security Council wishes to benefit from human rights expertise during its formal meetings, it rather invites the High Commissioner for Human Rights.
However, the knowledge and experience of the COIs and the special procedures constitute an important source of information on which the Security Council should rely during its official meetings. There is no rule preventing the Security Council from doing so. On the contrary, Rule 39 of the provisional rules of procedure states that the Security Council ‘may invite members of the Secretariat or other persons, whom it considers competent for the purpose, to supply it with information or to give other assistance in examining matters within its competence’. These briefings should become as frequent as the dialogues of the Special procedures with the Third Committee of the Assembly. Member states of the Council who are also members of the Security Council have an important role to play to encourage a better cooperation. It is imperative that the Security Council makes use of all the information, knowledge and experience that is available in order to ensure that human rights remains a part of every response to peace and security issues.
B. UN Secretariat
The Office of the High Commissioner for Human Rights is part of the UN Secretariat and acts as the secretariat of the Council. Resolution 60/251 does not explicitly foresee interaction between the Council and other parts of the UN Secretariat but this resolution nevertheless mandates the Council to ‘promote the effective coordination and the mainstreaming of human rights within the United Nations system’. In practice, the UN Secretary General attended some Council sessions or other events, but he left it to the High Commissioner for Human Rights to express views on specific topics and situations of human rights violations. From time to time, however, the UN Secretary General directly supports the efforts of the High Commissioner through the issuance of press releases or video messages, such as the one he sent to the panel on the rights of lesbian, gay, bisexual and transgender (LGBT) persons that was held on 7 of March 2012 in the context of the 19th session of the Council101.
In most cases, the Council requests reports from Special Procedures and the High Commissioner but in some instances, it requests reports from the UN Secretary General, as it is the case on the issue of the death penalty.102 Furthermore, in some rare cases, the Assembly / Third Committee requests the Secretary General to provide the Council with a particular report, as for the human rights situation in Iran103. Certain members of the UN Secretariat also participate occasionally in Council events. For instance, Amina J. Mohamed, Deputy Secretary General and special consultant for the planning of the post 2015 development agenda took part in the high level panel on the mainstreaming of human rights in the entire UN system in March 2013.
The Council, in turn, expresses interest in and considers the activities of certain special envoys and representatives of the Secretary General whose mandates touch upon human rights issues. These include for example the SRSG for Children and Armed Conflict and the SRSG on Violence against Children who report every year to the Council. The Council resolutions on the prevention of genocide largely refer to the SASG on this topic, Mr. Adama Dieng.104 Mr Dieng also participated in the high level panel discussion to commemorate the twentieth anniversary of the adoption of the Vienna Declaration and Programme of Action on 25 of February 2013. Moreover, the Council resolution on the prevention of genocide in March 2013 invited him ‘to an interactive dialogue dedicated to the tenth anniversary of the creation of the mandate of the Special Adviser at its twenty-fifth session’.105
C. Specialised Institutions, including UN Agencies, Funds and Programmes
According to Bertrand G. Ramcharan, ‘the UN’s principal specialized agencies will continue to have a valuable contribution to make to the Council's work. Cooperation should thus be institutionalized in the Human Rights Council. Related to this, the mainstreaming of human rights in all parts of the UN system should be the avenue for cooperation with the UN’s principal programs as well as the International Monetary Fund and the World Bank’.106
As previously mentioned, resolution 60/251 states that the Council ‘should also promote the effective coordination and the mainstreaming of human rights within the United Nations system’. This role was confirmed during the review process in 2010/11 with the decision to hold an annual half-day panel discussion ‘to interact with heads of governing bodies and secretariats of United Nations agencies and funds within their respective mandates on specific human rights themes with the objective of promoting the mainstreaming of human rights throughout the United Nations system’.107
To date 4 half-day panel discussions have taken place in the Council and different topics have been covered. Different entities related to human rights were invited to participate on the panel, such as UNDP, UNICEF, UNESCO, WHO, ILO, the World Bank or FAO depending on the different topics chosen. In 2012 the panel was dedicated to the area of development and cooperation in human rights mainstreaming at the national level108 whereas the 2013 panel aimed at contributing substantive inputs to the work of the Secretary-General’s high level panel on Eminent Persons while reaffirming the importance of integrating human rights in the post-2015 development agenda.109 In 2014 the focus was on the human rights of migrants110 and in 2015 the topic was the enhancement of international cooperation in the field of human rights.111
Different parts of the UN system have participated in special sessions, including UN agencies, funds and programs. For example, at the session on Darfur, UN Humanitarian Coordinator Jan Egeland and UNICEF have participated. UNICEF participated also in the session on Haiti.112
Outside of official meetings, alternative forms of cooperation and interactions can be highlighted between the different UN specialised institutions, funds and programmes and the Council and its special procedures. Efforts have been undertaken by these various entities in order to better mainstream human rights and take into account the work of the Council in their activities.113 The Council resolutions which request reports from the OHCHR or special procedures on topics that are of interest to the specialised institutions, funds and programmes, generally refer to these entities in the drafting process.114 As was the case in the mainstreaming panel, they are sometimes invited to express themselves in the framework of the official discussions in the Council115, to submit written contributions on specific topics116, or to the UPR117.
D. International Criminal Court
Even though there is no direct or formal link between the Council and in particular its special procedures, COIs and fact-finding missions with the ICC, their roles can be seen as complementary. Whereas the Council’s mechanisms assess and document violations of international human rights and international humanitarian law for the preparation of its reports, the role of the ICC is to identify the perpetrators of war crimes, crimes against humanity and genocide (as well as in the near future, crimes of aggression). With regard to country situations that are examined by both the Council and the ICC, the reports of the Council’s mechanisms and the OHCHR – including the evidence and testimonies put forward – can be of specific interest to the investigators of the ICC.
The quality and the standards of proof used for the elaboration of the Council reports have undoubtedly developed over the past years: ‘in the more than 15 years since the establishment of the ICTY [International Criminal Tribunal for the Former Yugoslavia] and ICTR [International Criminal Tribunal for Rwanda], UN human rights fact-finding has become more skilled at collecting, analysing and reporting on violations of international human rights and humanitarian law that qualify as crimes under international law, and to channel information that can be used to establish the context in which genocide, war crimes or crimes against humanity have been perpetrated, to the competent international prosecution authorities’.118
Despite their quality, however, these reports cannot constitute evidence as such before the ICC. Indeed, the investigators of the ICC need to conduct investigations themselves, including by holding interviews with witnesses and collecting evidence in accordance with the standards of proof defined in the Rome Statute. The reports of the Council and of the OHCHR can nevertheless help the work of the ICC investigators as they allow them to identify possible leads to follow. In order to allow the ICC to make direct use of the OHCHR’s investigations, in particular with regard to the testimonies collected, one idea would be for the OHCHR to conduct its interviews in accordance with ICC standards of proof in countries under scrutiny of the Court, in particular by asking each person interviewed if she or he agrees that his or her testimony can be used in the context of the Court provided that a proper protection of the witnesses is given.
The ICC can only start investigating crimes in States Parties to the Rome Statute or in those who have accepted the ICC’s jurisdiction. Therefore, a referral of the situation to the ICC by the Security Council is necessary to allow ICC investigations on crimes committed in other countries. Under such circumstances, it can be useful for the Council to encourage the Security Council to act by expressing certain positions or publishing specific reports, as was the case for Darfur: ‘a range of UN investigative procedures paved the way for ICC indictments, namely: […] the Human Rights Council’s High Level Mission on the Human Rights Situation in Darfur […] and the UN Human Rights Council’s Group of Experts on Darfur’.119 In the case of Libya, the Council played a lesser role in supporting the Security Council’s decision to refer the situation to the ICC.120 The case of Syria, on the contrary, has not yet been referred to the ICC by the Security Council despite the attempt of France in 2014, the repeated appeals by a trans-regional group of States, the High Commissioner for Human Rights, Special Procedures of the Council and of the COI Syria, without mentioning the National Coalition of Syrian Revolutionary and Opposition Forces itself.
If the Council works rather well on standard-setting, in-depth discussions on particular rights and the monitoring of human rights situations, it regularly falls short on the question of criminal accountability. There is a need, for example, to widen the scope of the mandates of COIs and country mandates in order to monitor not only the violations themselves but also what is being done to address accountability. There can be no real implementation of human rights without an effective remedy to turn to in case of violations. The efforts of the Council on accountability need to be strengthened and systematized according to a report by the NGOs TRIAL and ICJ121.
Accountability in general and the ICC in particular, are not often referred to in Council resolutions, despite some progress made over the past years. States that are not party to the Rome Statute show reluctance to mention the ICC. Their opposition is particularly strong when the Council addresses country situations. In New York however, the same States seem to have fewer concerns about the ICC: the General Assembly adopts every year by consensus a substantial resolution on the ICC122. It would be difficult to have the same kind of resolution on the ICC in the Council mostly because of the lack of knowledge about the activities of the ICC. In order to make the work of the ICC better known in Geneva, a Group of friends has been created in 2012 by Costa Rica, Botswana, Estonia, Jordan, Switzerland and Serbia.
E. Regional and sub-regional organisations
The cooperation between the Council and the regional and sub-regional organisations has been increasing over the past years and the will to enhance cooperation is clearly present. Nevertheless, there is a need to better coordinate international and regional efforts to protect human rights in order to maximize impact on the ground, ensure coherence of interpretation of the different human rights (in particular when it comes to jurisprudence) and enhance the sharing of information and best practices. The economical crisis certainly played a role in encouraging UN entities and regional and sub-regional organizations to cooperate more closely in order to benefit from synergies as their respective budgets have been limited or even reduced.
The importance of the cooperation between UN entities and regional organizations is underlined by the 1993 Vienna Declaration and Program of Action in its paragraph 37: ‘Regional arrangements play a fundamental role in promoting and protecting human rights. [...] The World Conference on Human Rights endorses efforts under way to strengthen these arrangements and to increase their effectiveness, while at the same time stressing the importance of cooperation with the United Nations human rights activities.’123
In a 2009 report on the issue, the OHCHR rightly emphasises the importance of regional and sub-regional mechanisms when it comes to complaints about human rights violations. They are often geographically closer to the complainant and the process can also be treated more efficiently as regional and sub-regional organisations are better adapted to regional specificities.124
Resolution 60/251 also invites the Council to cooperate with regional organizations.125 This encouragement has materialized through different Council resolutions on Regional arrangements for the promotion and protection of human rights, introduced by Belgium with the support of Senegal, Thailand, Mexico and Armenia.126 It is to be underlined that the need to strengthen the cooperation between the UN and regional entities to better protect human rights is also reflected in the Assembly resolutions on the same topic127. The resolutions presented by Belgium have resulted in the holding of various workshops organized by the OHCHR as mandated by the resolutions.
During the 2010 workshop one proposal was the designation of a focal point of cooperation in each of the regional and sub-regional entities. A first meeting between these focal points was subsequently held in 2012.128 The OHCHR report related to the 2012 meetings (workshop on regional arrangements and the meeting of the focal points)129 is particularly interesting as it spells out concrete initiatives that have been taken to enhance cooperation and makes a series of practical recommendations in order to increase the efficiency of cooperation.
According to the report, efforts have been made in the following areas: intensification of the exchange of information130, coordinated follow up131, joint visits on the ground132, common press releases133, and cooperation on UPR134. Participants to the 2012 meetings on regional arrangements recommend to systematise and generalise the cooperation efforts: more systematic joint press releases, declarations and statements regarding key issues or situations; expand the practice of drafting joint reports, standards and guidelines; undertake more joint country visits as well as joint advocacy activities; reinforce collaboration between field presences of regional intergovernmental organizations and United Nations country teams; systematize the sharing of information (exchange of calendars of activities, programmes of visits, list of secretariats and reports); create a database containing the findings, decisions and recommendations of United Nations and regional human rights mechanisms; develop a matrix containing recommendations made by United Nations and regional human rights mechanisms; map and cluster best practices on follow-up on recommendations across mechanisms; systematic provision of information by regional human rights mechanisms to the Universal Periodic Review.
F. International Committee of the Red Cross
Given that the Council is a subsidiary organ of the Assembly, the International Committee of the Red Cross (ICRC) enjoys within the Council the same status of permanent observer it was granted by the Assembly in 1990.135 As it was mentioned at the time, it can only be saluted that ICRC’s experience and achievements in the codification, development and implementation of international humanitarian law (IHL) and its role as an independent, neutral and impartial intermediary dedicated to the pursuit of humanitarian ends be used for the realisation of the Council’s objectives.136 In concrete terms, the ICRC’s observer status gives the organisation, inter alia, the ability to participate in the Council’s activities, including by making official statements in the Council’s interactive dialogues with special procedures mandate holders.
From 2006 to 2011, the ICRC’s official contribution to the Council remained quite modest. It only made a few targeted interventions in thematic debates and maintained a very discreet profile in all discussions related to specific contexts.137 This was in sharp contrast with its engagement during the time of the United Nations Commission of Human Rights, before which the ICRC used to deliver high-level statements at each annual session.138 The year 2013 marked a drastic enhancement in the ICRC dialogue with the Council, starting with a very engaged and committed statement delivered by Peter Maurer, ICRC President.139 To better address the protection and assistance of victims of armed conflict and other situations of violence, he shared his convictions that it was necessary for the ICRC to increase its understanding of, and cohabit with, the sphere of politics, social affairs and development, the causes and consequences of conflicts, peace-keeping, and efforts to achieve justice and to restore the rule of law. As regards ICRC relations with the Council itself, the ICRC President insisted on their multifaceted complementarity: respective mandate, applicable branches of international law, means of action (discretion and confidentiality vs. advocacy and denunciation), etc. He stressed that the ICRC attaches particular importance to that approach, ‘the protection of fundamental rights inevitably proceeding through a series of converging strategies which, far from being mutually exclusive, must provide mutual reinforcement.’140
The 2013 ICRC decision to engage more actively with the Council was certainly guided by the fact that nearly one-third of the resolutions adopted by the Council in March 2012 refer to IHL, in connection with particular situations or specific topics as important as children, violence against women or the process of transitional justice. Clearly, the ICRC’s new leadership considers that it is not enough to settle for systems that work in isolation if one wishes to be better equipped to respond to the needs of the victims. More concretely, the President of the ICRC participated on a regular basis to the high-level segments of the Council session in March every year to keep the Council and its members abreast of the latest developments and important humanitarian challenges the ICRC is facing. Furthermore, since 2013 the ICRC is proactive in the assumption of its role and its observer status within the Council, by maintaining a constant presence at the sessions of the Council and following the sessions of the UPR.
The ICRC made official statements in a range of interactive dialogues, among others on children’s rights, violence against women and transitional justice. ICRC experts participated in a number of side-events on accountability, poverty and violence against women and the ICRC is also regularly present at informal meetings relating to draft Council resolutions. In doing so, the ICRC seemed to have put into place a complementary process in Geneva to the one that it has already established for many years in New York, where it has managed to position itself on a number of issues, in particular before the Third Committee. This clearly allows the organisation to participate more effectively to the substantial work that is carried out in Geneva by the Council, before it reaches the end of the exercise each fall in New York.
This article aimed at outlining the relationships the Human Rights Council has with the General Assembly, the Third and Fifth Committee, the Security Council, UN specialised institutions, programmes and funds, the UN secretariat as well as the ICC, the ICRC and regional and sub-regional organisations. It has demonstrated that the Council and its subsidiary mechanisms have been developing formal and informal interactions with these other entities. Even if cooperation has increased in comparison to the former Commission for Human Rights, it needs to be more systematic in order to actually improve effectiveness and avoid gaps and duplications.
If the divide between Geneva and New York is less palpable than some years ago, one may still note that the work of the Council is not always well known or understood in New York. Regular briefings after each Council session in New York as suggested by the OHCHR could help alleviate this problem.141
But even if cooperation is enhanced and the human rights pillar is further strengthened, this pillar will not be able to completely fulfil its role as long as it is not properly integrated into the two other UN pillars, namely peace and security and development. The three pillars are closely interlinked and can be seen as mutually reinforcing.142 In practice nevertheless, much more needs to be done to break the silos between the different pillars and address certain limits to which the Council is subjected, both substantial and institutional.
From the institutional point of view, contrary to the other pillars, there is no main UN organ dealing with human rights issues. The dynamism and reactivity of the Council, even if it is further developed and enhanced, cannot fully compensate the limitations inherent to it being a subsidiary organ. It is therefore necessary to consider once again at the next review if the Council should be elevated to the status of a main UN organ in order to give to the human rights pillar the institutional means to fulfil its purpose. From a substantive point of view, the human rights pillar should be closely cooperating with the two others in order to enhance the coherence of the UN response and reinforce its impact on the ground. Two unique opportunities at hand to concretize this goal are the elaboration of the post 2015 agenda and the increasing interest of the Security Council in human rights.
The post 2015 agenda is a chance to ensure a better integration of human rights in development. The efforts of the OHCHR and of the Council in this regard have bear fruit, as the report of the High-level Panel143 to advice on the global development framework beyond 2015 integrated the human rights dimension: ‘new goals and targets need to be grounded in respect for universal human rights, and finish the job that the MDGs started’. The final document to be formally adopted in September 2015 by the General Assembly144 still contains this idea: ‘They [the 17 Sustainable Development Goals and 169 targets] seek to build on the Millennium Development Goals and complete what they did not achieve. They seek to realize the human rights of all and to achieve gender equality and the empowerment of all women and girls.’ If all the MDG’s contain in one way or another a Human Rights aspect, goal 16 can be seen as the Human Rights and Rule of Law goal: ‘Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels’.
The Security Council as well as the divisions of the UN Secretariat dealing with peace and security are devoting more time to human rights in their analyses, especially since the Arab Spring. As explained above, the significance of human rights from a peace and security perspective is at the heart of the recommendations of the Secretary General’s internal review panel lead by the ASG Charles Petrie published in November 2012. According to the report of the Panel: ‘The Secretary-General should include international human rights, humanitarian and criminal law perspectives in overall UN analysis and strategy’.145
This idea has been confirmed by the Rights Up Front initiative launched by the Secretary General in 2013. On 2 December 2014 at a public event in Harvard University, the Secretary-General stated that human rights violations remain the international community’s ‘clearest early warning signs of instability and violence.’ And that his new Human Rights Up Front initiative would compel the UN to speak up on rights abuses around the world ‘far earlier, and if necessary far more pointedly, even if that is not what Governments want to hear; our hope is that Human Rights Up Front will lead to earlier, more determined steps to keep situations from escalating.’
More specifically, there is a need to ensure that the excellent work done by the OHCHR in Geneva together with the activities of the Human Rights Council and its special procedures are better mainstreamed throughout the work done in New York.
Enhanced attention and a better integration of human rights in the two other pillars would not only prevent and limit the escalation of crises but would as well allow for a more efficient and long term impact of development programs on the ground. To be able to reach those goals, the human rights pillar needs to benefit from a significant increase of UN funding. Less than 3% percent of the UN budget is currently devoted to human rights, which is clearly not enough. The 10th anniversary of the Council in 2016 might be a good opportunity to reflect upon the role that States want the human rights pillar to play in the years to come and decide on the means they are willing to provide by establishing a defined target, such as, for example, 10% of the UN budget devoted to human rights by 2030. This does not mean that there is a need to increase the UN budget. Member States could instead modify the priorities of the UN. By engaging more means into the human rights pillar in order to react more swiftly and appropriately to specific human rights situations, it might be able to prevent the deterioration into major crises which are far more costly for the UN.
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1 The authors would like to express their gratitude to the persons who have helped in the drafting of this article: Anh Thu Duong, Anne-Marie La Rosa, Marc Limon, Bob Last, Barbara Fontana, Alexandre Steullet, Thomas Unger, Christine Löw, Matthias Dettling, Jean-Nöel Ladois, Norman Lizano, Alex Conte and Jean-Daniel Vigny.
2 Report of the High-level Panel on Threats, Challenges and Change, ‘A more secure world: our shared responsibility‘ (2004) UN Doc A/59/565, par. 291: ‘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’.
3 General Assembly resolution 60/251, pre. par. 6.
4 For information on the work of the Commission on Human Rights see website of the OHCHR: http://www2.ohchr.org/english/bodies/chr/ (accessed 28 July 2015)
5 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, art. 7, available at: http://www.un.org/en/documents/charter/ (accessed 28 July 2015)
6 General Assembly resolution 65/281 of 20 July 2011.
7 General Assembly resolution 65/281 of 20 July 2011, par. 3: ‘ Decides also to maintain the status of the Human Rights Council as a subsidiary body of the General Assembly and to consider again the question of whether to maintain this status at an appropriate moment and at a time no sooner than ten years and no later than fifteen years;’.
8 Lempinen & Scheinin (2007), pp. 9-10.
9 Ramcharan (2011), pp. 44-45: ‘The council has not yet settled down to forming its functions in a responsible manner and is entangled in numerous controversies that detract from its capacity to uphold human rights worldwide. The HRC needs time to resolve its difficulties before a decision is taken to make it a principal organ.’
10 General Assembly, Report of the Secretary General 59/2005/Add.3, par. 17: ‘Another set of issues requiring further elaboration concerns the role and mandate of the Human Rights Council vis-à-vis the other components of the United Nations human rights system, in particular the Office of the High Commissioner, other United Nations agencies and programmes dealing with human rights, the treaty monitoring bodies, the General Assembly, the Security Council, the Economic and Social Council and the proposed new Peacebuilding Commission.’
11 General Assembly, report of the Secretary-General 59/2005/Add.3, par. 10.
12 General Assembly, report A/67/715–S/2013/63.
13 General Assembly, report A/68/729–S/2014/67.
14 Lempinen & Scheinin (2007), p. 11.
15 General Assembly resolution 60/251, op. par. 1 & 5.
16 Ibid, op. par. 3.
17 General Assembly resolution 65/281, par. 42.
18 General Assembly resolution 60/251, op. par. 11.
19 General Assembly resolution 65/281, pre. par. 4 and General Assembly resolution 60/251, pre. par. 5.
20 General Assembly resolution 60/251, op. par. 5 (j):’Decides that the Council shall (…) submit an annual report to the General Assembly’.
21 E.g. see Human Rights Council report 24/2.
22 General Assembly resolution 65/281, op. par. 4: ‘Decides further that from 2013, the Human Rights Council will start its yearly membership cycle on 1 January’.
23 Example taken from resolution General Assembly resolution 67/151, pre. par. 4. In UN resolution terminology, ‘takes note’ is an obvious step short of endorsement, which is better represented through ‘welcomes’, ‘adopts’ or ‘endorses’.
24 A/HRC/RES/1/1, 29 July 2006.
25 A/HRC/RES/8/2, 18 June 2008.
26 A/HRC/RES/17/18, 14 July 2011.
27 General Assembly resolution 66/137.
28 Oberleitner (2007), p. 85: ‘The General Assembly has taken a limited interest in scrutinizing human rights situations and monitoring the implementation of human rights obligations. It participates in the supervision of human rights treaties insofar as it receives the reports of the UN treaty bodies. … Still, observers conclude that the success of the General Assembly in investigating gross human rights abuses lay only in ‘not undoing the attempts made in this area by [its] subordinate bodies’.
29 E.g. see General Assembly resolution 68/182.
30 General Assembly resolution 67/262, op. par. 7.
31 General Assembly resolution 60/251, op. para. 8.
32 General Assembly resolution 65/265 and General Assembly resolution 66/11.
33 A/HRC/RES/S-15/1, 25 February 2011.
34 Human Rights Council resolution 18/9.
35 At the 67th session of the Assembly (autumn 2012), the Third Committee has adopted some 60 resolutions (four of them country resolutions: Myanmar, Iran, DPRK, and Syria). At the same session, the Third Committee held interactive dialogues with 38 special procedure mandate holders of the Council.
36 25 out of 61 resolutions were also subject to a resolution in the Council, examples are: Myanmar, Iran, DPRK, Syria, Torture, Enforced Disappearances, Administration of Justice, Right to Food, Extreme Poverty, Right to Development, Freedom of Religion and Belief, Violence against Women, Migrants and Older Persons.
37 URG, Policy Report, Ensuring Relevance: Driving Impact (2015). The evolution and future direction of the UN Human Rights Council’s resolution system www.universal-rights.org/wp-content/uploads/2015/02/URG_Report_ERDI-Jan2015-print_layout.pdf (accessed on 27 July 2015).
38 General Assembly, report of the Secretary General 59/2005/Add.3, par. 17: ‘For example, the Human Rights Council would provide an opportunity to rationalize the agenda of the Third Committee of the General Assembly with the work of the Human Rights Council, as well as to strengthen the General Assembly’s ability to analyse and draw attention to continuing gaps in the implementation and mainstreaming of human rights throughout the United Nations system.’
39 Gerd Oberleitner, Global Human Rights Institutions (2007), p 86.
40 It is worth noting that since the review of the Council in 2011, the President of the Council can address the Assembly from the podium. Before, the President had to do the presentation of his report from the seat of the delegation of her/his State of origin, again to limit the importance of the Council.
41 This short resolution currently reads as follows: ‘Takes note of the report of the Human Rights Council, including the addendum thereto, and its recommendations’ (Example taken from resolution A/RES/67/151, 6 March 2013).
42 It was adopted by 94 in favour, 3 against and 62 abstentions (see A/RES/66/136).
43 74 in favour, 76 not in favour and 18 abstentions. Subsequently the resolution was adopted with 87 in favour, 66 against and 22 abstentions.
44 The amendment proposed once again by USA and EU was rejected: 83 no, 80 yes and 18 abstentions. Subsequently the resolution was adopted with 94 in favour, 71 against and 23 abstentions.
45 Human Rights Council resolution 5/1, Rule of Procedure 14.
46 General Assembly report 65/53
47 General Assembly resolution 65/281, op. par. 8.
48 For more information on the special sessions see website of the OHCHR: http://www.ohchr.org/EN/HRBodies/HRC/Pages/Sessions.aspx (accessed 28 July 2015).
49 General Assembly resolution 65/281, op. par. 9.
50 Norway, Morocco, Mexico and Turkey, supported by around thirty other states from all around the globe, in particular Switzerland, have requested several times to the Council and the Third Committee in 2012 and 2013 that the mandates of the Council be completely funded by the UN budget. These states consider that the OHCHR should not have to use its own funds to insure the functioning of the Council. For those states it is especially inacceptable that the voluntary contributions received by the OHCHR, which are aimed at supporting its own activities of promoting human rights, are used to implement the decisions made by the Council (according to the OHCHR, 11% of the Council mandates and 40% of the tasks related to the treaty bodies are at present financed by voluntary contributions)
51 Human Rights Council resolution 5/1, par. 15.
52 International Convention on the Protection of the Rights of All Migrant Workers and their Families, New York, 18 December 1990, United Nations Treaty Series, Vol. 2220, No. 39481, p. 3, available from https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4&lang=en.
53 The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) have been ratified by 168 and 164 States party respectively and cover a broad spectrum of human rights.
54 Twenty-fifth meeting of chairpersons of the human rights treaty bodies, Geneva, 24–28 June 2013, Note by the Secretariat, HRI/MC/2013/3, par. 32.
55 Resolution on Peaceful Protests, A/HRC/RES/19/35, OP 10: ‘Requests the High Commissioner, in preparing the thematic report, to draw from the experience of treaty bodies (…)’.
56 Resolution on enforced disappearances, A/HRC/RES/21/4: ‘Welcomes the cooperation established between the Working Group and the Committee on Enforced Disappearances, within the framework of their respective mandates’.
57 Resolution on the right of the Child, A/HRC/RES/22/32: ‘Welcoming the work of the Committee on the Rights of the Child, and taking note of its general comments Nos. 4 (2003), 7 (2005) and 13 (2011), as well as of general comment No. 14 (2000) of the Committee on Economic, Social and Cultural Rights and general recommendation No. 24 (1999) of the Committee on the Elimination of Discrimination against Women’.
58 Based on the authors review of Security Council resolutions available at http://www.un.org/en/sc/documents/resolutions/.
59 In 2006: 21 out of 87 resolutions mention ‘human rights’ = 24%, in 2007: 17 out of 56 = 30%, in 2008: 27 out of 65 = 41%, in 2009: 22 out of 48 = 46%, in 2010: 30 out of 59 = 51%, in 2011: 33 out of 51 = 64%, in 2012: 34 out of 54 = 62%, in 2013 in 2013: 35 out of 47 = 74% and in 2014: 40 out of 63 = 63%.
60 13.04.2011: Côte d’Ivoire, 18.08.2011, Syria, 09.11.2011: Protection of Civilians, 12.12.2011: Syria.
61 07.02.2012: Arria Formula on Human Rights and Peacekeeping, 25.06.2012: Protection of Civilians, 02.07.2012: Libya, 02.07.2012: Israel-Palestine, 02.07.2012: Syria, 03.07.2012: Sudan and South Sudan.
62 18. January 2013: Syria, 16 July 2013: Syria, 19 August 2013: Protection of Civilians.
63 12 February 2014: Protection of Civilians, 7 April 2014: CAR, Libya, Mali, South Sudan, Syria, 2 May 2014: South Sudan, 20 May 2014: Ukraine.
64 E.g. see Security Council resolution 2077, pre. par. 26: ‘ Emphasizing that peace and stability within Somalia, the strengthening of State institutions, economic and social development and respect for human rights and the rule of law are necessary to create the conditions for a durable eradication of piracy and armed robbery at sea off the coast of Somalia’ and Security Council resolutions 2017, 2103 and 2099.
65 Security Council resolution 2014, op. par. 2: ‘ Strongly condemns the continued human rights violations by the Yemeni authorities, such as the excessive use of force against peaceful protestors as well as the acts of violence, use of force, and human rights abuses perpetrated by other actors’.
66 Security Council resolution 2062, op. par. 12: ‘ Urges the Ivorian Government to ensure in the shortest possible timeframe that, irrespective of their status or political affiliation, all those responsible for serious abuses of human rights and violations of international humanitarian law, notably those committed during the post-electoral crisis in Côte d’Ivoire, are brought to justice in accordance with its international obligations and that all detainees receive clarity about their status in a transparent manner, further encourages the Ivorian Government to continue its cooperation with the International Criminal Court’.
67 An Ombudsperson was created by Security Council resolution 1904 and extended by resolution 1989 and resolution 2083. Individuals, groups, undertakings or entities seeking to be removed from the Security Council’s Al-Qaida Sanctions Committee List can submit their request for delisting to the Ombudsperson. For more information on the Ombudsperson and the proceedings associated see Willis (2011).
68 Rathgeber (2012), p. 18: ‘Human rights are meanwhile systematically considered when the UNSC evaluates the use of sanctions under Chapter VII of the UN Charter, such as arms embargoes, travel bans, listing of persons, asset freezes, commodity and trade sanctions, financial restrictions, and access to Internet or satellite communications’. See also Gutherie (2004) and Ciampi (2011).
69 Security Council resolution 2100, op. par. (d)(ii).
70 These missions have dedicated human rights staff and operate in Afghanistan, Burundi, Central African Republic, Côte d’Ivoire, Darfur (Sudan), the Democratic Republic of Congo, Guinea-Bissau, Haiti, Iraq, Liberia, Libya, Mali, Sierra Leone, Somalia and South Sudan.
http://archive-org.com/page/4944904/2014-11-24/http://www.ohchr.org/EN/Countries/Pages/PeaceMissionsIndex.aspx (accessed 25 August 2015).
71 According to a UN Security Council press release of 12 January 2007, the Chinese delegate explained before the vote that ‘the Myanmar issue was mainly an internal affair of sovereign State […] None of Myanmar’s immediate neighbours […] believed that the current situation in Myanmar posed a threat to regional peace and security.’ The Russian stated that ‘the problems in Myanmar mentioned in the draft resolution were being considered within the framework of other bodies of the United Nations system. […] Attempts aimed at using the Security Council to discuss issues outside its purview are unacceptable.’ For full text see: http://www.un.org/press/en/2007/sc8939.doc.htm (accessed 29 July 2015).
73 For information about the mandate see OHCHR website: http://www.ohchr.org/EN/HRBodies/SP/CountriesMandates/MM/Pages/SRMyanmar.aspx (accessed 28 July 2015).
74 The resolution adopted by the Council in its extraordinary session in May 2009 consolidated the principle of non interference, which led NGOs to call it a failure of the Council. The two resolutions adopted in March 2012 and 2013 are on the contrary more credible because they insist on the necessity to investigate the crimes committed in the past and highlight human rights violations committed.
75 Recommendation 4.B, Report of the Panel of Experts, 31 March 2011.
76 Report of the Internal Review Panel on UN actions in Sri Lanka, 12 November 2012, pp. 31-32.
77 http://www.un.org/sg/rightsupfront (accessed on 26 August 2015).
78 Rathgeber (2012), p. 9: ‘both the Human Rights Council and the Security Council have played prominent roles in 2011 in discussing and taking action on the so-called Arab spring and the complex developments that have followed to this day. Although the UNSC is not a human rights organ in a strict and normative sense, it has constantly extended its scope of operation towards this perspective and is meanwhile involved in evaluating and judging country situations with a high level of human rights violations.’ Some examples for resolutions include: Yemen: Security Council resolution 2014 and Human Rights Council resolution 18/19. On Libya: Security Council resolution 2017 and Human Rights Council resolution S-15/1 and 18/9, and for Syria: Security Council resolution 2042 and Human Rights Council resolution S-17/1 and S-18/1.
79 Security Council resolution 2014 (Yemen), op. par. 2.
80 Security Council resolution 2099, pre. par. 14.
81 Human Rights Council resolution 25/28, pre. par. 3 and op. par. 3, and Human Rights Council resolution 25/23, pre. par. 7, op. par. 14 & 16.
82 For more information see: http://www.securitycouncilreport.org/chronology/syria.php?page=1 (accessed 28 July 2015)
83 OHCHR Fact Sheet N. 27: ‘Under the ‘Arria formula’, an informal arrangement that allows the Security Council to meet with experts, representatives of non-State entities and NGOs, some special procedure mandate holders have also briefed members of the Security Council on specific country situations, eg the Democratic Republic of Congo.
84 ‘The "Arria-formula meetings" are very informal, confidential gatherings which enable Security Council members to have a frank and private exchange of views, within a flexible procedural framework, with persons whom the inviting member or members of the Council (who also act as the facilitators or convenors) believe it would be beneficial to hear and/or to whom they may wish to convey a message.’ For more information see: http://www.un.org/en/sc/about/methods/bgarriaformula.shtml (accessed 30 July 2015).
85 Ramcharan (2011), pp.17.
86 Addendum to the report of the Secretary-General, ‘Larger Freedom: towards Development, Security and Human Rights for All’ (2005) UN Doc A/59/2005/Add.1, par. 10.
87 A/HRC/RES/16/32, 13 April 2011, OP 8: ‘Recommends that the General Assembly reconsider the report of the United Nations Fact-Finding Mission on the Gaza Conflict at its sixty-sixth session, and urges the Assembly to submit that report to the Security Council for its consideration and appropriate action, including consideration of referral of the situation in the Occupied Palestinian Territory to the prosecutor of the International Criminal Court, pursuant to article 13 (b) of the Rome Statute;’
88 In January 2013, 58 States of all regional groups lead by Switzerland signed on to a letter sent to the UN Security Council and requesting a referral of the situation in Syria to the ICC. On 11th March 2013, a joint declaration prepared by Switzerland requesting the transfer of the situation in Syria to the ICC was read by Libya in the name of 64 states from all regions of the world during the interactive dialogue of the Council with the COI Syria.
89 Statements delivered on behalf of all Special Procedures mandate-holders of the United Nations Human Rights Council at the 18th and the 19th Special Sessions of the Human Rights Council on the situation of human rights in the Syrian Arab Republic, 2 December 2011: ‘Adding our voice to that of the High Commissioner for Human Rights, we strongly encourage a referral by the Security Council of the situation in Syria to the International Criminal Court.’; 1 June 2012: ‘We consider that recent tragic events constitute an additional reason for the Security Council to refer the situation to the International Criminal Court.’
90 Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/22/59, 18 February 2013, par. 180: ‘The commission recommends that the Security Council, in the light of the gravity of the violations and crimes perpetrated by Government forces and anti-Government groups, take appropriate action and commit to human rights and the rule of law by means of referral to justice, possibly to the International Criminal Court, bearing in mind that, in the context of the Syrian Arab Republic, only the Security Council is competent to refer the situation to the Court’.
91 Human Rights Council resolution S-17/1, op. par. 15.
92 Human Rights Council resolution S-18/1, op. par. 19.
93 Human Rights Council resolution 19/22, op. par. 20.
94 E.g. see Human Rights Council resolution 25/23.
95 Human Rights Council resolution 27/16, op. par. 19: ‘Decides to transmit all reports and oral updates of the commission of inquiry to all relevant bodies of the United Nations, including the General Assembly, and the Secretary-General for appropriate action’.
96 PP 7 of resolution A/HRC/RES/28/20 of 8 April 2015: ‘Recalling the statements made by the Commission of Inquiry and the special procedures of the Human Rights Council that crimes against humanity and war crimes are likely to have been committed in the Syrian Arab Republic, and noting the repeated encouragement by the Commission to the Security Council to refer the situation to the International Criminal Court’; OP 17: ‘Recalls that the International Criminal Court was established to help to end impunity for such crimes where the State is unwilling or unable to genuinely carry out investigations or prosecutions’; OP 18: ‘Emphasizes the need to ensure that all those responsible for violations of international humanitarian law or violations and abuses of human rights law are held to account through appropriate, fair and independent domestic or international criminal justice mechanisms, and stresses the need to pursue practical steps towards this goal, noting the important role that the International Criminal Court can play in this regard’; OP 25: ‘Decides to transmit all reports and oral updates of the Commission of Inquiry to all relevant bodies of the United Nations, recommends that the Commission brief the General Assembly during its sixty-ninth session, also recommends that the Assembly submit the reports to the Security Council for appropriate action, expresses its appreciation to the Commission for its briefings to members of the Council, and recommends the continuation of future briefings’.
97 OP 12 and 13 of resolution A/HRC/RES/19/22 : ‘ Commends and supports the efforts and measures of the League of Arab States, and calls upon the Syrian authorities to implement the League’s Plan of Action of 2 November 2011 in its entirety, as well as its decisions, without further delay / Demands that the Government of the Syrian Arab Republic, in accordance with the Plan of Action of the League of Arab States of 2 November and its decisions of 22 January and 12 February 2012, without delay: (…) (c) Withdraw all Syrian military and armed forces from cities and towns, and return them to their original home barracks;’
98 Cherif Bssiouni M., Schabas, William A. (eds), New Challenges for the UN Human Rights Machinery: What Future for the UN Treaty Body System and the Human Rights Council Procedures? p. 280
99 ‘The Human Rights Council according to Andrew Clapham’, Director of the Geneva Academy of International humanitarian law and human rights, 2012. www.geneve-int.ch/en/human-rights-council-according-andrew-clapham-director-geneva-academy-international-humanitarian-law (accessed 1 September 2015)
100 Cherif Bssiouni M., Schabas, William A. (eds), New Challenges for the UN Human Rights Machinery: What future for the UN Treaty Body System and the Human Rights Council Procedures?, p. 282.
101 For more information on the panel see Human Rights Council extranet: https://extranet.ohchr.org.
102 Decision A/HRC/DEC/18/11 of 17 October 2012.
103 Assembly resolution A/RES/67/182 of 20 March 2013: ‘Requests the Secretary-General to (…) submit an interim report to the Human Right Council at its twenty-second session’.
104 For more information on the mandate of the SRSG children in armed conflict see: https://childrenandarmedconflict.un.org/ and for the Special Adviser on the Prevention of Genocide see: http://www.un.org/en/preventgenocide/adviser/.
105 E.g. see Human Rights Council resolution 22/22.
106 Bertrand G. Ramcharan, The Human Rights Council (2011), p. 31.
107 General Assembly resolution 65/281, annex, par. 42.
108 The panel was held on 28 February 2012, for more information see: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/MainstreamingHRCConceptNote.docx (accessed 29 July 2015).
109 The panel was held on 1 March 2013, for more information see: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/Panel_on_mainstreaming2013_CONCEPT_NOTE.docx (accessed 28 July 2015).
110 The panel was held on 4 March 2014, for more information see: http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session25/Documents/CN_HLonhuman_rights_mainstreaming.doc (accessed 29 July 2015).
111 The panel was held on 3 March 2015, for more information see: http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session28/Documents/ConceptNoteMainstreaming.docx (accessed 28 July 2015).
112 Statement by UNICEF, 13th special session of the HRC on The support of the HRC to the Recovery Process in Haiti after the Earthquake of January 12, 2010: a Human Rights Approach, 27 January 2010
113 ‘UNDP collaborates with other UN partners like the UN Human Rights Council and the Office of the High Commissioner for Human Rights (OHCHR). While these two bodies are assigned to monitor human rights violations, UNDP is tasked with strengthening government capacities to deliver on their human rights commitments. UNDP also interacts with UN Special Rapporteurs. In 2009, UNDP has published the first two issues of a News Brief called ‘Human Rights for Development’. http://www.claiminghumanrights.org/undp.html (accessed 03.09.2013)
114 Resolution A/HRC/RES/21/6 of 9 October 2012: ‘Requests the Office of the High Commissioner to prepare, from within existing resources, in consultation with States, United Nations agencies, in particular the World Health Organization, the United Nations Population Fund, the United Nations Children’s Fund and the United Nations Entity for Gender Equality and the Empowerment of Women, and all other relevant stakeholders a report on how the technical guidance has been applied by States and other relevant actors, to be presented to the Human Rights Council at its twenty-seventh session’. Resolution A/HRC/RES/19/7 on the Right to Food of 3 April 2012: ‘Encourages the Special Rapporteur to continue his collaboration with relevant international organizations and United Nations agencies, programmes and funds, in particular the Rome-based ones.’
115 UNODC and UNDP were invited to participate at the panel discussion on the negative impact of corruption on the enjoyment of human rights on 13 March 2013. Furthermore, the United Nations Climate Change Secretariat (UNFCCC), the United Nations Environment Programme (UNEP), UNFPA, UNHCR, WHO and IOM participated at a workshop on human rights and climate change in February 2012, which was established by resolution A/HRC/RES/18/22.
116 Joint UNICEF, UNFPA and WHO report to the Human Rights Council of 2011 on addressing the human rights dimension of preventing maternal mortality and morbidity.
117 UNICEF submits regularly contributions to the OHCHR for the UPR process of certain states where it is actively engaged.
118 Sunga, Lyal S., ‘How can UN human rights special procedures sharpen ICC fact-finding?’ , The International Journal of Human Rights, Vol. 15:2, p. 200.
119 ibid, p. 198.
120 Resolution 1970 (2011): ‘Welcoming the Human Rights Council resolution A/HRC/S-15/2 of 25 February 2011, including the decision to urgently dispatch an independent international commission of inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya, to establish the facts and circumstances of such violations and of the crimes perpetrated, and where possible identify those responsible’.
121 ‘Promoting Accountability through the Human Rights Bodies in Geneva. A Working Paper for States’: http://www.trial-ch.org
122 Example: resolution A/RES/68/305 of 16 September 2014.
123 General Assembly, Vienna Declaration and Programme of Action, par. 37.
124 Human Rights Council report 11/3 of 28 of April 2009: ‘Regional and subregional mechanisms, which are located geographically closer to the complainant, may be more visible and considered more approachable by the complainant. [...] At the same time, when cases are reported simultaneously to the regional human rights body and to the relevant United Nations treaty body (where applicable) or the Human Rights Council special procedure, the Member State may be put on notice that it is being scrutinized and this may encourage domestic resolution of the complaint. […] Where complaints are deemed inadmissible to regional courts and commissions on technical grounds, they may be remitted to the relevant special procedure mandate holder, since special procedures are not judicial bodies and can be more flexible in the nature of the complaints they pursue with the Member States’.
125 A/RES/60/251, 3 avril 2006 OP 5 h: ‘Work in close cooperation in the field of human rights with Governments, regional organizations, national human rights institutions and civil society;’
126 Resolution 6/20 of 28 September 2007, 12/15 of 1st October 2009, 18/14 of 29 September 2011 and 24/19 of 27 September 2013.
127 For example, resolution A/RES/63/170.
128 In the first meeting of the focal points participated representatives from the African Commission on Human and Peoples’ Rights, the African Court on Human and Peoples’ Rights, the Economic Community of West African States’ Court of Justice, the Inter-American Commission of Human Rights, the Inter-American Court of Human Rights, the Council of Europe’s Directorate General of Human Rights and Rule of Law, the OSCE Office for Democratic Institutions and Human Rights, the ASEAN Intergovernmental Commission of Human Rights, the Chair of the ASEAN Commission on the Promotion and Protection of the rights of Women and Children, the Organization of Islamic Cooperation Independent Permanent Human Rights Commission, and the League of Arab States Arab Human Rights Committee. Focal points for cooperation of the Office of the High Commissioner for Human Rights also participated, including the Field Operations and Technical Cooperation Division, the Special Procedures Branch, the Universal Periodic Review Section, the Human Rights Treaties Division and the Research and Right to Development Division (OHCHR report A/HRC/23/18 of 8 April 2013).
129 Report of the OHCHR of 8 April 2013 on the workshop on regional arrangements for the promotion and protection of human rights and the meeting of the focal points (A/HRC/23/18). In the workshop on regional arrangements participated representatives of treaty bodies, special procedures, the African Commission on Human and Peoples’ Rights, the Inter-American Commission on Human Rights, the Council of Europe, the ASEAN Intergovernmental Commission on Human Rights and the Independent Permanent Human Rights Commission of the Organization of Islamic Cooperation.
130 End of mission statements by UN special procedures are shared with the African Commission on Human and Peoples’ Rights, which reciprocates; treaty bodies take the recommendations of regional human rights mechanisms into consideration during the review of implementation of human rights obligations by Member States and liaise with regional mechanisms regarding individual complaints to ensure jurisprudential coherence.
131 The Committee for the Prevention of Torture in Africa took measures to implement the recommendations of the Special Rapporteur on contemporary forms of slavery from his visit to Mauritania.
132 Joint visit of the UN and African Commission special procedures mandate holders on human rights defenders in Tunisia, in September 2012; joint visit of the Special Rapporteur on freedom of opinion and expression and his counterpart from the Inter-American Commission of Human Rights to Mexico in October 2011.
133 Joint Declaration by the African Union and the European Union on the United Nations international day in support of victims of torture in 2010.
134 The Council of Europe submits information on its member States on a regular basis. Since 2009, the Inter-American Commission of Human Rights has regularly submitted information on countries that are members of the Organization of American States. Occasionally, the African Commission on Human and Peoples’ Rights also submits information on States members of the African Union.
135 See General Assembly resolution 45/6 adopted without a vote. It was the first time that such status was granted to an organisation that was not a government organisation.
136 See statement made by Mr V. Traxler, Permanent Representative of Italy to the United Nations at the time of the adoption of the abovementioned resolution, available at: http://www.icrc.org/eng/resources/documents/misc/57jnwh.htm (accessed 28 July 2015)
137 For instance, in June 2006 and September 2007, the ICRC delivered statements on enforced disappearance; and in June 2010 the ICRC joined a panel on the protection of journalists in situations of armed conflicts.
138 After September 2001, ICRC statements before the Commission focused, inter alia, on the relevance and continued validity of IHL (see 2002 and 2003 statements), the complementarity of IHL and human rights law (see 2004 statement) and ICRC protection activities with focus on persons deprived of their liberty (see 2005 statement).
139 It is worth mentioning that, before heading the ICRC, Peter Maurer was the Swiss Ambassador to the United Nations at the time the HRC was being discussed and was one of the very active forces behind its establishment.
140 The ICRC statement delivered in the high-level segment of the 22nd session of the HRC is available on HRC extranet.
141 Simple briefings after each Council session held in New York under the auspices of the ASG Simonovic as suggested by the OHCHR during the briefing for Member States on OHCHR’s Thematic Strategies for 2014-2017 that took place on 17 of October 2013 would certainly help in that regard.
142 As the World Summit Document of 2005 (General Assembly resolution 60/1) and the Assembly resolution creating the Council (General Assembly resolution 60/251) put it.
143 Report of the High-level Panel of 30 of May 2013.
144 Draft outcome document of the United Nations summit for the adoption of the post-2015 development agenda A/69/L.85 of 12 August 2015, page 2 of the Annex.
145 http://www.un.org/apps/news/story.asp?NewsID=49493#.VeXEqjrov4g (accessed on 30 August 2015)
- Quote paper
- Emmanuel Bichet (Author)Stephanie Rutz (Author), 2016, The UN Human Rights Council's Relationship with other Entities, Munich, GRIN Verlag, https://www.grin.com/document/502468