By Ngawang C. Drakmargyapon*
Introduction
On 15 March 2005, when former Tibetan political prisoner Phuntsok Nyidron arrived in the United States of America (USA), at the headquarters of the United Nations in New York, the General Assembly of the United Nations (GA), a historic vote established the UN Human Rights Council (HRC) to replace the UN Commission on Human Rights (CHR). To skeptics this historic change in the United Nations global role on the promotion and protection of human rights in the future may look as a change merely in words, from Commission to Council, and nothing else.
Phuntsok Nyidron was one of the many individual human rights cases in Tibet over which human rights mandates of the CHR intervened and during the past two years according to the Dui Hua Foundation, she was even allowed by the Chinese authorities to meet with two mandates of the CHR, the Working Group on Arbitrary Detention…and the Special Rapporteur on Torture.
The CHR in its sixty years of history had played an important role on human rights, including the drafting of many human rights standards (Universal Declaration of Human Rights (UDHR), the International Convention on Civil and Political Rights (ICCPR) and the International Convention on Economic, Social and Cultural Rights (ICESCR). At the final session of the CHR there were expectations that it would adopt the draft convention on disappearances and the draft declaration on the human rights of indigenous peoples. These two documents will come up for consideration by the first session of the Council if it is to continue to fulfill UN’s mandate on human rights standard setting.
Ms. Louise Arbour, the UN High Commissioner for Human Rights, in her statement to the final session of the CHR said that the Commission “established the system of special procedures, becoming a protector of human rights, in addition to their promoter. Made up of independent experts, special rapporteurs, special representatives of the Secretary-General, special representatives of the High Commissioner for Human Rights, and Working Groups, these individuals have now come to represent in many ways the frontline human rights troops we turn to for early warning and protection. ”
In that statement, the High Commissioner also highlighted CHR’s work in considering the situation of human rights in specific countries and the creation of the first human rights complaints mechanism in the UN system: the so-called “1503 procedure” as the body’s other important achievements. She also added that the “Commission created a global forum for dialogue on human rights issues and nurtured a unique close relationship with civil society, allowing for discussion on human rights by senior government officials, victims of human rights abuses, national human rights institutions, UN agencies and non-governmental organizations.”
However, the recent years of the CHR have been regarded as having created questions concerning the credibility of the United Nations to deal with human rights situations. One of the fundamental problems was related to States seeking membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticise others. The UN Secretary-General Kofi Annan while addressing 61CHR said that “the Commission’s ability to perform its tasks has been overtaken by new needs, and undermined by the politicization of its sessions and the selectivity of its work. We have reached a point at which the Commission’s declining credibility has cast a shadow on the reputation of the United Nations system as a whole, and where piecemeal reforms will not be enough.”
The Asian Centre for Human Rights identified a group of countries who were responsible for the demise of the CHR’s credibility: “A bunch of illiberal democracies and countries ruled by the military dictators and authoritarian regimes formed an alliance at the Commission on Human Rights under the banner of Like Minded Group (LMG) consisting of Cuba, Egypt, Pakistan, China, India, Malaysia, Indonesia, Syria, Algeria, Nigeria and Tunisia. In 1998 taking advantage of the midterm review of the Vienna Declaration and Programme of Action, the Commission on Human Rights took a decision on “Enhancing the Effectiveness of the Mechanisms of the Commission on Human Rights” (1998/122) and “Restructuring the Agenda of the Commission on Human Rights through Resolution” (E/CN.4/RES/1998/84) that had devastating effects on the credibility of the Commission on Human Rights.”
At the 61CHR, China shouldered the responsibility of the spokesperson of the LMG when the Ambassador Sha Zukang said to the Commission: “Human rights progress in certain parts of the world is exaggerated in order to fulfill hidden political agendas. For the same reason, serious human rights violations can also be ignored on purpose. The Commission has turned into a place of naming and shaming of developing countries, especially with regard to the deliberations under Item 9 whose original intention was to address only situations of massive, flagrant and systematic violations of human rights. The record of the last several years shows that there has been indiscriminate use of country specific resolutions under Item 9 targeting mainly developing countries. The record also reveals lack of transparency, application of double standards and political motives in the way in which country specific resolutions are identified, negotiated and tabled. It is these factors that have contributed to the intense politicization and confrontation of the Commission, and to loss of its objectivity, credibility and impartiality.”
One of the few countries not satisfied with the HRC resolution was the United States of America. While voting against the resolution on the establishment of the HRC, Ambassador John Bolton of the USA in an explanation of the vote statement said: “The Secretary-General…proposed that the Council elect its members by a two-thirds majority. This proposal is not included in the resolution before us today, and it should be. The higher hurdle for membership would have made it harder for countries that are not demonstrably committed to human rights to win seats on the Council. It would have helped to prevent the election of countries that only seek to undermine the new body from within.” The USA has now even decided not seek a seat at the Council but Washington may come on board for elections in the coming years.
As for the reaction of the People’s Republic of China (PRC), Qin Gang, a Foreign Ministry spokesperson on 16 March 2006 responded during a regular press briefing: “The founding of Human Rights Council is one of the important contents of UN reform set by the High Level Plenary of the UN General Assembly last year. China has taken part in relevant consultations consistently with a positive and constructive attitude. We cast an affirmative vote.” One of the paragraph that PRC was pushing in the HRC resolution text was to have the Council supervise the work of the Office of the UN High Commissioner for Human Rights (OHCHR) in Geneva but by the end of the negotiations Beijing’s ambitious paragraph did not get the support.
As for Tibetan reaction, official or unofficial, there was none when the GA resolution on HRC was adopted. However, on 11 April, the International Campaign for Tibet (IC) in a statement said: “ICT is all too aware that the output of the Council will primarily serve the interests of its membership, and not necessarily the peoples under its dominion. If member states use the Council for its proper purpose then it can improve the lives of millions, but if they politicize the Council as they did with the Commission over the past decade, without being held accountable for their actions, then the Council will fail where the Commission failed.”
The fact that the HRC will for the moment be a subsidiary body of the GA is a welcome political development for human rights in the UN system unlike the CHR was a subsidiary body the UN Economic and Social Council that reported to the GA. It is now hoped that after some years of its existence, there will be strong support for the Council to become the UN’s principal human rights body. But it can be expected that developing countries, in particular the LMG group, would oppose such a move.
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*Ngawang C. Drakmargyapon was the former Human Rights Officer of the Tibetan Government in Exile(TGIE) at its Department of Information and International Relations and between 1994 and 2003 coordinated its UN activities as the Human Rights Officer at Tibet Bureau for UN Affairs in Geneva. He now works as a Human Rights Consultant and is writing a book on Tibet and United Nations.
