The UN Human Rights Council: A Practical Anatomy

379 Pages·2020·6.239 MB·English

by  Eric Tistounet

The UN Human Rights Council
TISTOUNET_9781789907933_t.indd 1 22/01/2020 10:58
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The UN Human Rights Council
A Practical Anatomy
Eric Tistounet
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The UN Human Rights
Council
A Practical Anatomy
ERIC TISTOUNET
Chief of the Human Rights Council Branch, Office of the United Nations High
Commissioner for Human Rights, Switzerland
Elgar Practical Guides
Cheltenham, UK • Northampton, MA, USA
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© Eric Tistounet 2020
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system or transmitted in any form or by any means, electronic, mechanical or
photocopying, recording, or otherwise without the prior permission of the publisher.
Published by
Edward Elgar Publishing Limited
The Lypiatts
15 Lansdown Road
Cheltenham
Glos GL50 2JA
UK
Edward Elgar Publishing, Inc.
William Pratt House
9 Dewey Court
Northampton
Massachusetts 01060
USA
A catalogue record for this book
is available from the British Library
Library of Congress Control Number: 2019952354
This book is available electronically in the
Law subject collection
DOI 10.4337/9781789907940
ISBN 978 1 78990 793 3 (cased)
ISBN 978 1 78990 794 0 (eBook)
Typeset by Servis Filmsetting Ltd, Stockport, Cheshire
2
0
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Contents
Foreword by Louise Arbour vii
Foreword by Coly Seck ix
Acknowledgements xii
Introduction 1
1 The Human Rights Council in a nutshell 6
1.1 The UPR mechanism 8
1.2 Special Procedures 13
1.3 Commissions of inquiry, commissions on human rights,
fact-finding missions and other ad hoc investigations 16
1.4 The Human Rights Council Advisory Committee and
the Complaints Procedure 18
1.5 Interaction between the various human rights bodies
and mechanisms 23
2 The Human Rights Council functions 29
2.1 The inadequacy of the responses of the Commission
on Human Rights to gross and massive violations of
human rights 33
2.2 Elements of a human rights geology: how the Council
addresses human rights issues 42
3 The Human Rights Council governance: the role and
functions of the President and his/her Bureau 95
3.1 The traditional roles and functions of the President and
his/her Bureau 96
3.2 The additional responsibilities of the Council President
and the Bureau 99
3.3 The New York–Geneva gap 118
3.4 Representing the Council outside Geneva 121
v
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vi THE UN HUMAN RIGHTS COUNCIL
4 The Human Rights Council stakeholders 123
4.1 Member States 123
4.2 Groups of States 133
4.3 Observer States 137
4.4 Other observers 139
5 The structure of sessional and intersessional activities 151
5.1 The sessional activities 154
5.2 Organizational Meeting and Sessions 191
5.3 Special Sessions 193
5.4 Intersessional activities and other Council work formats 196
5.5 Informal and parallel meetings or activities 206
6 The Human Rights Council voting procedure and procedural
motions 210
6.1 Influence of politics, history and psychology on the
voting process 215
6.2 When does the Council adopt formal decisions or
resolutions? 221
6.3 The Human Rights Council voting procedure 225
6.4 Procedural motions in the context of the substantive
work of the Council 271
6.5 Elections 283
6.6 Selection and appointment of mandate-holders 285
7 The change management process as it applies to the Council
and previously the Commission 288
7.1 The Commission on Human Rights’ failed attempts at
reforming itself 288
7.2 The constant efforts of the Human Rights Council to
reform itself 289
In guise of an imperfect conclusion 308
An incomplete list of success stories 309
Flexibility, realism and transparency vs confusion and lack
of visibility 316
The fluctuating nature of frustrations 318
Appendices 326
Index 357
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Foreword
Louise Arbour
High Commissioner for Human Rights, 2004–2008
Successful institutional reforms are few and far between. The crea-
tion of the Human Rights Council in 2006 is one of them. Its suc-
cess rests in part in that it happened at all: in contrast, repeated
efforts to reform the Security Council have been unsuccessful. True,
neither the stakes nor the obstacles were as high in the case of the
call for reform of the preceding Commission on Human Rights as
they were with regard to the Security Council. However, the political
environment was similar as human rights touch on sensitive issues,
and divisions run deep.
In fact, the successful reform of the UN human rights institution might
be in part attributable to the failure of the concurrent attempts to
reform the Security Council: this became the face-saving consolation
prize. Indeed the impetus for reform came late, the timetable was
short, and consensus, although hard won, came relatively rapidly.
Be that as it may, and in contrast to reforms that are purely cosmetic,
the Human Rights Council responded head on to the main complaint
raised against its predecessor: selectivity and double standards. In an
environment where claims were increasingly made that the Human
Rights Commission was instrumentalized to target some countries and
turn a blind eye to the delinquencies of others, it was not obvious from
the outset what re-structuring of the institution could address these
claims. If they had any validity, was it not more as a result of a power
play than of an institutional fault line?
A concept emerged that proved useful, although not clearly articulated
at the outset. Thinking in purely institutional terms, the focus was, as
it had always been in the case of Security Council reform, on the com-
position of the Commission. I, for one, explored the idea that selectiv-
vii
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viii THE UN HUMAN RIGHTS COUNCIL
ity could be overcome by universality, and that therefore universal
membership might be the way forward.
This got very little traction. In contrast, others argued for a more
restrictive membership, suggesting that the Commission should shrink
from its then 53 members to something closer to the Security Council
15. The idea of course would be that the most deserving would serve.
Like others, I was weary of any move towards a human rights body
composed of a club of the virtuous, particularly since virtue was in
short supply in many quarters, and would be hard to recognise in
others even by those who claim some in themselves.
And this was a farther step away from the fundamental concept of
universality, central to many aspects of human rights doctrine. So
settlement was reached on a slightly reduced size of the Council, to
47, and this I believe was largely cosmetic. However, the principle of
universality inspired the idea of universal scrutiny of human rights
compliance, and the Universal Periodic Review was born.
Institutionally, and at least theoretically, this was a most appropriate
answer to the claims of selectivity and probably also to the complaint
of double standards: all countries, beginning with the elected members
of the Council themselves, would be subject to a regular examination
of their performance as human rights duty bearers, in a transparent
peer review-like mechanism.
Since then, the Council has sought to be responsive to challenges old
and new, and has had to navigate often stormy political waters.
This book, which comprehensively accounts for the many and com-
plex working parts of the Human Rights Council, helps us understand
whether we are collectively well served, as rights-holders, by our inter-
national institutions. It is a reflection well worth having.
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Foreword
Coly Seck
President of the thirteenth Human Rights Council Cycle (2019),
Permanent Representative of Senegal to the United Nations Office at Geneva
Human rights are the very heartbeat of freedom, which in turn is a
basic right. Every human being born into this world is entitled to these
rights, which are distinct from privileges, by the mere virtue of being
born. It is therefore the duty of every human being to promote, protect
and uphold these values. It is therefore of utmost import to have in
place principles, structures and systems to ensure that these rights that
are provided for and protected under the United Nations Charter and
other international human rights treaties are available to all without
hindrance in order to allow humanity to blossom and flourish to its
fullest potential without fear or favour.
Human nature as it is has internalised and demonstrated a charac-
ter of the more dominant entity bestowing upon itself the privilege,
sometimes interpreted as the right, to control and often exploit the
weaker one. This shortcoming calls for checks and balances such that
the manifestation of freely inherited rights that shape the human
condition – liberty and freedom – is not only enjoyed by every human
being but is also protected and dispensed justly.
The United Nations Organization as the embodiment of the con-
science of the world has taken due cognizance of this fact, hence the
creation of the Human Rights Council under its aegis with the aim of
promoting and protecting human rights around the world. This task,
however, requires the establishment of structures and processes in
order to achieve the ultimate goal of serving justice. Any deficiency in
this crucial role is tantamount to failure of the system.
Eric Tistounet, Chief of the Human Rights Council Branch of the
Office of the High Commissioner for Human Rights and author of
ix
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