4 December, 2020

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Making Complaints, UN Human Rights Council And Its Subsidiary Bodies

By  S. V. Kirupaharan

S. V. Kirupaharan

In March 2006, the international intergovernmental body, the UN Human Rights Council – UNHRC/HRC was established by General Assembly – GA resolution 60/251 to replace the Commission on Human Rights. The 1st session of the HRC took place in June 2006. Its members review and consider thematic and country-specific human rights issues.

Since the creation of the HRC there have been 20 regular sessions. Special sessions can be called at any time with the support of one-third (16) members of the HRC. So far 15 special sessions have been convened. These have addressed emergencies – Worsening world food situation; and the Global economic crisis – and urgent situations in the following states – Darfur Sudan; Myanmar; Occupied Palestinian territory (3 sessions); Democratic Republic of Congo; Sri Lanka; Haiti (earthquake); Ivory Coast; Libyan Arab Jamahiriya; Syrian Arab Republic (3 sessions).

The HRC is composed of 47 member States, elected by majority vote in the GA. No country may serve more than two consecutive three-year terms. They are not eligible for immediate re-election after the six years, without taking a break of at least one year. The Council’s Membership distribution is as follows:

Africa                                                   –          13         States

Asia                                                      –           13         -do-

Latin America andCaribbean                 –             8        -do-

Western Europeand other                     –             7        -do-

Eastern Europe                                    –             6        -do-

Since the beginning of the HRC – Bangladesh, Cameroon, China, Cuba, Djibouti, Jordan, Mauritius, Mexico, Nigeria, Russia, Saudi Arabia, Senegal, and Uruguay have been members for six consecutive years and so they are not qualified to contest for re-membership immediately.

It is expected that Pakistan and Venezuela will be elected soon to the HRC and that they will serve the interests of China,CubaandRussia.Pakistanhas already served two terms; however, its first term was only for two years. Therefore it is eligible to stand for election again.

When the HRC was created, theUSwanted the membership of any country under U.N. sanctions to be rejected. Also theUSwanted HRC members to be elected by a two-thirds majority in the GA rather than a simple majority. But this proposal didn’t have the support of the majority in the GA.

The bureau of the HRC consists of a President on regional rotation for each cycle and four Vice-presidents – so all five regional groups are represented. They serve for a year, which is known as one cycle period. Presently the council is in its 6th cycle.

HRC subsidiary bodies

The subsidiary bodies of the HRC are the Universal Periodic Review-UPR, Advisory Committee-AC and Complaint Procedure-CP. These bodies function directly under the HRC.

Special Procedures’ Mandate holders – Country Rapporteurs, Special Rapporteurs/Independent Rapporteurs and Working groups function impartially and serve in their personal capacity. They monitor situations, examine, advise, send urgent appeals, send letters voicing allegations to governments and they publish reports on human rights situations in specific countries and on thematic issues.

The thematic issues include Adequate Housing, Water, Food, Health, Education, Cultural, Religious belief, Opinion and expression, Racism and Racial discrimination, Children, Women, Detention, Torture, Summary executions, Disappearances, Human rights defenders.

These Special procedures’ mandate holders are assisted by the Office of the High Commissioner for Human Rights – OHCHR with manpower and logistical support.

The High Commissioner for Human Rights and her office OHCHR play a crucial role in the function of the HRC. The UN Secretary General nominates a candidate for the post of the High Commissioner and then the GA follows the procedures for approval. As the HRC is an inter-governmental body, the High Commissioner has no say in their decisions but the High Commissioner’s input is seriously considered by the majority of the UN members.

Universal Periodic Review – UPR

The Universal Periodic Review – UPR was created by the HRC on 27 September 2007, through Decision 6/102. The UPR reminds States of their obligation to implement relevant instruments of human rights law and fundamental freedoms.

The aim of the UPR is to improve human rights situations and to address human rights violations wherever they occur. Every four years the UPR reviews the human rights record of each UN member state and their fulfilment of human rights commitments.

During the process, States are permitted to give information about actions they have taken to improve the human rights situation in their countries, to overcome challenges and to fulfil their obligations.

The UPR assesses the States respect for human rights set out in:

(1) UN Charter

(2) Universal Declaration of Human Rights

(3) Human rights Treaties ratified by the State

(4) Voluntary pledges and commitments made by the State

(5) Applicable international humanitarian law

A further aim is to provide technical assistance to States – to deal effectively and to share best practices in the field of human rights among States and stakeholders. During the process on any state under UPR review, three documents are considered:

(1) National report prepared by the State under review;

(2) A compilation of UN information;

(Reports of independent human rights experts – Special rapporteurs and others; Reports of the treaty bodies, and other UN entities; of the State under review prepared by the Office of the United Nations High Commissioner for Human Rights – OHCHR)

(3) Summary of information prepared by the OHCHR from the reports submitted by Non-Governmental

Organisations (NGOs) and other civil society actors.

The UPR process starts at Working Group level and ends with the adoption of the outcome of the review by the Council at its plenary session, followed by a general debate.  The State under review addresses the questions and/or issues it chooses to respond to, from those transmitted to it by the Troika members, or arising during the proceedings of the Working Group.

Troikas

The troika is a group of three States, serving as rapporteur, selected through a drawing of lots prior to each Working Group session and includes a member from the same particular region as the state under review. The Working Group holds three two-week sessions per year. In each session 16 countries are reviewed, therefore one cycle of all states was completed within 3 years (2008-2011). This year the process of the 2nd cycle has started (2012-2016).

The troika shares issues or questions with the State under review in order to have a smooth interactive dialogue. Its role is limited to preparation of the review, preparation of the outcome document and the modalities of the actual review. Obviously Troika members are not the decision-makers in the process.

It is to be noted that when Indiadrew Pakistanas one of its troika members, Pakistanrefused to be a troika member for India. During the 1st cycle of the UPR on Sri Lanka – Ukraine, Cameroon and Bangladesh served as its Troika members. The 2nd cycle review on Sri Lanka will be during the 14th session of the UPR on 1st November and adoption of the report will be on 5th November 2012. The Troika members will beBenin,Spain andIndia.

Working Group

A three-and-a-half-hour interactive dialogue between the State under review and the member andobserverStatesof the Council takes place in the Working Group.

The State under review has 60 minutes to present their National report and reply to written questions and questions that arise from the floor by other States during the interactive dialogue.

The Working Group (Troika) prepares a report of its proceedings of the interactive dialogue with full co-operation of the State under review and with the assistance of the Secretariat. This report will have recommendations and conclusions made by delegations during the interactive dialogue.

Views expressed by the State under review, Member and Observer States and general comments made by the NGOs on the outcome, before its adoption, are included in the report of the Council session.

No sooner than 48 hours after the country review half an hour is allocated to adopt each of the “outcome reports”. The reviewed State has the opportunity to make preliminary comments on the recommendations, choosing to either accept or reject them. The report then has to be adopted at a plenary session of the Human Rights Council.

During the plenary session, the State under review can reply to questions and issues that were not sufficiently addressed during the Working Group and respond to recommendations that were raised by States during the review. Time is also allocated to member and observer States who may wish to express their opinion on the outcome of the review and for NGOs and other stakeholders to make general comments.

NGOs and Civil society

For the UPR process, National Human Rights Institutions (NHRIs), NGOs or members of civil society – (Stakeholders), can submit information on any state being reviewed. This will be added to the “other stakeholders” report which is considered during the review.

However, only ECOSOC NGOs can attend the UPR Working Group sessions and make statements at the regular session of the HRC when the outcome of the State review is considered.  NGOs are allocated 20 minutes during this process.

Consequences

The State under review is expected to examine all recommendations made, to follow up on the recommendations that have its support as well as on voluntary commitments and pledges.

It has a responsibility to implement the recommendations in the final outcome.

Failure in implementing these recommendations will lead to answers on what they have been doing towards implementation, in the next cycle. Many states expect strong action on non-cooperating States. The HRC still haven’t decided what action to take on non-cooperative States.

Advisory Committee – AC

The Advisory Committee was created through HRC resolution 5/1.

The AC replaces the former Sub-Commission on the Promotion and Protection of Human Rights. The AC is composed of 18 experts and is a think-tank for the HRC. The AC provides expertise to the Council through studies and research. It is limited to thematic issues pertaining to the mandate of the Council; concerns regarding promotion and protection of all human rights. The AC cannot adopt resolutions or decisions, but it can make proposals to the Council.

The AC has two sessions per year for a maximum of 10 working days. The 1st annual session convenes prior to the March session of the HRC and the 2nd session is held in August.  The annual report of the AC is submitted to the HRC in its September session. During its session the States, INHRIs and NGOs can participate.

The AC held its inaugural session from 4 to 15 August 2008. The 9th session will be held from 6 to 10 August 2012.

Complaint Procedure – CP

HRC resolution 5/1, the Complaint Procedure is being established to address regular patterns of gross and reliably attested violations of human rights and fundamental freedoms occurring in any part of the world and under any circumstances.

Functioning in the same way as the 1503 procedure did in the former UN Commission on Human Rights, it ensures that procedures are impartial, objective, efficient, victim-oriented and conducted in a timely manner.

The CP led to the establishment of the Working Group on Communications – WGC and the Working Group on Situations – WGS.

Anonymous communications are screened out by the WGC, together with the Secretariat, based on the admissibility criteria. Communications accepted in the screening are transmitted to the State concerned to obtain its views.

The Working Group on Communications (WGC) comprises five independent highly qualified expert members appointed from the AC for a period of three years, renewable once.

The WGC meets twice a year for a period of five working days to assess the admissibility and the merits of communications. Admissible communications and recommendations are transmitted to the WGS.

The Working Group on Situations (WGS) comprises five members appointed by the regional groups from the HRC is for the period of one year, renewal once. It meets twice a year for a period of five working days in order to examine the communications transferred by WGC, including the replies of States.

On the information and recommendations provided by the WGC, the WGS presents the HRC with a report making recommendations to the Council on the course of action to be taken. It is up to the HRC to take a decision concerning each situation brought to its attention.

 Criteria for an admissible communication

Communications related to violations of human rights and fundamental freedoms are admissible, unless:

à        They are politically motivated complaints,

à        Not consistent with the UN Charter, the Universal Declaration of Human Rights and other applicable mechanisms in the field of human rights law; or

à        It does not contain a factual description of the alleged violations,

à        If the language is abusive – communication may be considered if it meets the other criteria.

à        It is not submitted by a person or a group of persons claiming to be the victim of violations or by any person or group of persons, including NGOs claiming to have direct and reliable knowledge of those violations, provided they are accompanied by clear evidence; or

à        It is based on reports disseminated by mass media; or

à        It refers to a case of violations that are already being dealt with by a special procedure, a treaty body or other complaints procedure within the UN.

à        The domestic remedies have not been exhausted, unless it appears that such remedies would be ineffective or unreasonably prolonged.

Any victim, their kith and kin and NGOs can send communications to the following address:

Office of United Nations High Commissioner for Human Rights

Human Rights Council Branch

Complaint Procedure Unit
OHCHR- Palais Wilson
United Nations
1211 Geneva 10

Switzerland

*S. V. Kirupaharan, General Secretary,Tamil Centre for Human Rights – TCHR, France

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    Thanks Kiruba, great job

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