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21.02.2011

The second meeting of the second open-ended intergovernmental working group on the review of the work and functioning of the Human Rights Council (the Council) took place on 17 and 18 February. States and NGOs offered their comments and suggestions on the negotiating text circulated by the President of the Council earlier in the week. The session was marked by the same divisions that have characterised the entire review process (see previous ISHR news stories on the review here, here, here and here).

 

The second meeting of the second open-ended intergovernmental working group on the review of the work and functioning of the Human Rights Council (the Council) took place on 17 and 18 February. States and NGOs offered their comments and suggestions on the negotiating text circulated by the President of the Council earlier in the week. The session was marked by the same divisions that have characterised the entire review process (see previous ISHR news stories on the review here, here, here and here).

One of the most contentious areas continued to be the issue of the Council’s responsiveness to emergency and chronic human rights situations. In what appears to be complete denial of the events currently unfolding in the Middle East, North Africa and beyond, a strong group of States continues to oppose any additional mechanism for the Council to address urgent situations of human rights violations. However, with a few exceptions, States supportive of better equipping the Council to deal with emergencies have to date not explicitely referred to current affairs in support of their positions. Despite the wide divergence, finding common ground on this issue may well be the linchpin of the review. States on both sides of the divide have described it as crucial to their joining consensus on a final text.

Significant divergence exists also in relation to most other aspects of the Council’s work, with the most negative proposals being made in relation to the system of special procedures.

At this late stage of the process, a huge gap remains between the opposing views expressed by States and there is an apparent reluctance from many to compromise. The final meeting of the second working group will be held on 23 and 24 February. With only two days of the second working group session left, the President faces a tough challenge if his ambitious timeline of finalising a ‘supplement to the institution-building text’ by the end of February is to be met. Once adopted by the Council at its March session, both the supplement and a report on the review process would be forwarded to the Council’s parent body, the General Assembly. Some of the key areas of discussion on the 17 and 18 February are outlined below.

Reprisals

A cross cutting issue that has been getting increasing attention are reprisals against persons cooperating with UN human rights mechanisms. Several States (Switzerland, the UK, and the US) felt that the paragraph on reprisals, currently located in the section on special procedures, did not adequately reflect the fact that reprisals can occur against individuals who cooperate with any part of the UN human rights system. The US called for the paragraph to be rephrased accordingly, while Switzerland and the UK recommended that the paragraph be moved to a separate part of the text to reflect the cross-cutting nature of the issue.

Urgent situations

Regardless of the weakness of the President’s proposal for addressing situations, several States, including Nigeria (on behalf of the African Group), Pakistan (on behalf of the OIC), Cuba, the Philippines, the Russian Federation called for it to be deleted from the text. They argued that the Council already has sufficient tools to address such situations. Others, including Hungary (on behalf of the EU), Argentina, Canada, France, Ireland, Japan, the Netherlands, and the UK made recommendations for strengthening the proposal including ensuring space for NGOs and NHRIs to participate, and removing the consent requirement in favour of calling on the concerned State to cooperate with the process.

There was significant debate regarding special sessions, and ‘special sittings’ that could be held when a situation requires Council action during a regular session. Speaking on behalf of the OIC, Pakistan expressed discomfort with the proposals, arguing that such cases should be addressed within the Council’s regular programme of work. NAM and the African Group requested the use of ‘urgent debates’ instead of ‘special sittings’. The provision that such debates would be called at the request of a member of the Council and with the support of one third of the membership faced no opposition.

Special Procedures

The cluster of issues on special procedures has been similarly divisive. NGOs repeated calls to ensure that the independence and expertise of the special procedures be strengthened through the review process, in particular that calls to increase oversight of the special procedures should be balanced by State accountability to their own obligations under the system.

Egypt (on behalf of the NAM) along with the Russian Federation continued to call for the establishment of an ‘advisory legal committee’ to report on compliance with the Code of Conduct for special procedures.

The NAM, OIC and African Group continued to try to weaken those areas of the text that focused on State cooperation. In particular, these States sought to remove references to State requirements to cooperate with mandate holders, and objected to a proposal that OHCHR should compile a report and statistics on State cooperation with special procedures. Japan, and the US insisted that this information should be compiled, with Japan adding that there was need for the Council to be able to take concrete steps in cases of persistent non-compliance. Israel, supported by Canada, called for the addition of a paragraph requiring member States of the Council to allow special procedures to visit if requested.

Hungary (on behalf of the EU), along with France and Poland, suggested that special procedures be encouraged to draw the Council’s attention to urgent matters. Japan received support from Canada, France, the UK, and the US, on its proposal to add a new paragraph to allow the Council to create country mandates for up to two years. This would facilitate cooperation by increasing the continuity and predictability of the mandates.

Many countries, including the UK, Vietnam, New Zealand, the US, Algeria, Mexico, Australia, Argentina, and Chile opposed changes to the selection process that would foresee an ‘endorsement’ of candidates by States. Mexico emphasised that the election of candidates should be based on expertise rather than endorsement by regional groups or States.

The funding for special procedures led to significant divergences among States. Nigeria (on behalf of the African Group), Egypt (on behalf of NAM), Mexico, the Maldives, Thailand, Brazil, Saudi Arabia, and China opposed the earmarking of voluntary funds provided to OHCHR. NAM and the African Group called for increased transparency on the sources of funding. Hungary (on behalf of the EU), Canada, France, Germany, Japan, and the UK, objected to the creation of a pooled fund for the entire special procedures system without the donating country’s consent, and emphasised that increased transparency for earmarked provisions must not lead to excessively bureaucratic procedures. The EU also did not support annexing budget reports to the each special procedures report.

Universal periodic review (UPR)

Proposals to strengthen follow-up, including making mid-term reporting and implementation plans compulsory, faced stiff opposition. Egypt (on behalf of the NAM), Pakistan (on behalf of the OIC), Indonesia (on behalf of ASEAN), Nigeria (on behalf of the African Group), Vietnam, China, the Philippines, Chile, Guatemala, Azerbaijan, the Russian Federation, Thailand, Nepal, Saudi Arabia, and Bangladesh all called for mid-term reporting and implementation plans to be upheld on a strictly voluntary basis. These States mainly argued against increasing the reporting burden on States. However, it seems that serious efforts at implementing recommendations would necessarily be based on a plan.

Another area of concern is the preference that many States have consistently expressed for the second cycle to focus only on accepted recommendations. As NGOs pointed out, this would enable States under review to unilaterally limit the scope of its review by rejecting recommendations in areas it does not want to discuss. While Canada, Ireland, New Zealand, Norway, the UK, and the US emphasised the need to focus on all recommendations, the NAM, OIC and African Group continued with their arguments that only accepted recommendations could be discussed during the second cycle.

Regarding the periodicity of the UPR, Nigeria (on behalf of the African Group) and other States (the Philippines, Nepal, Bangladesh, and South Africa) reiterated their preference for a five-year cycle. On the other hand Canada, Switzerland, the US, the UK, France, and the Netherlands strongly rejected the proposal to lengthen the cycle, concerned that doing so would risk weakening the entire UPR process. It appears that a period of four and a half years will be the compromise most likely to be accepted by States.

The President’s proposal on solving the problem of the speakers’ list enjoyed broad consensus from States. Under this proposal, the standard speaking times would remain at three minutes for member States and two minutes for observer States. Should it be impossible to accommodate all speakers within this timeframe, the speaking time would be reduced to two minutes for all, or the time divided equally amongst all delegations to ensure that all could speak. In all cases, the speakers’ list would be arranged in alphabetical order of the country names in English, with the President drawing the first speaker by lot.

Japan called for more clarity on accepted and rejected recommendations. It suggested that States under review would submit their views in written form, prior to the Council plenary for the adoption of the outcome of its review. This proposal enjoyed strong support from Australia, Argentina, Norway, Chile, Germany, Costa Rica, Ireland, Canada, Switzerland, the US, the UK, Hungary (on behalf of the EU), the Netherlands, and France – the latter claiming that the ‘credibility’ of the UPR required that the status of the recommendations be clearly articulated. Canada maintained that recommendations that were not rejected should be considered as accepted.

Despite strong concerns by stakeholders against the adoption of UPR reports taking place outside the regular sessions, this proposal was not revisited by States. NGOs pointed out that members of civil society would be reluctant to travel to Geneva only for the sake of making a two-minute statement, particularly when their position on the speakers’ list could not be guaranteed.

The UK and other States (including Australia, Chile, the US, Costa Rica, and Norway) emphasised the importance of having A-status NHRIs be able to express their views immediately after the State under review.

Advisory Committee

The proposal by the US to abolish the Advisory Committee stood in contrast to calls to maintain the status quo put forward by Nigeria (on behalf of the African Group), Pakistan (on behalf of the OIC), Egypt (on behalf of the NAM), Indonesia (on behalf of ASEAN), Azerbaijan, China, Cuba, Lebanon, Nepal, the Philippines, the Russian Federation, Saudi Arabia, South Africa, and Vietnam. In particular, they suggested that the election of Advisory Committee members be maintained and opposed replacing it by a selection process similar to that of special procedures mandate holders. The US and Canada suggested that civil society and accredited NHRIs should be able to propose candidates to the Advisory Committee.

Complaint procedure

Regarding the complaint procedure, a proposal to have the working group on situations report comprehensively to the Council on each of its meetings, was offset by the reiteration by China of the importance of ensuring the ‘confidential nature’ of the procedure. This position enjoyed support from Indonesia (on behalf of ASEAN), Nigeria (on behalf of the African Group), Egypt (on behalf of the NAM), Pakistan (on behalf of the OIC), Lebanon, Nepal, the Philippines, Saudi Arabia, and Vietnam.

Nigeria (on behalf of the African Group), along with Guatemala, the Philippines and the Russian Federation, restated their position that the complaint procedure should not handle cases that are already being dealt with by special procedures or treaty bodies in order to ensure that the principle of non-duplication is fully realised. While this principle is not disputed, the President’s negotiating text clarifies that the examination of a situation by the Council itself would not exclude cases from the complaints procedure.

Agenda and programme of work

On the agenda and programme of work, the more divisive discussions have been around the number of regular sessions of the Council to be held in a year. Hungary (on behalf of the EU), Australia, Canada, Switzerland, the UK, and the US opposed the current proposal for a reduction of sessions from three to two, unless alternative mechanisms were put in place to ensure a prompt response to emergency situations in the periods while the Council was not sitting.

Working methods

The use of videoconferencing or video messaging, to facilitate stakeholder participation faced opposition from the NAM, OIC and African Group, all of whom raised concerns about how to ensure, at a distance, that a person purporting to speak on behalf of an accredited NGO does indeed represent that NGO.