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UN Special Procedure Changes Not a Good Sign
[The weekly commentary and analysis of the Asian Centre for Human Rights (ACHR)]
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Embargoed for: 12 October 2005
Asian governments at the gate:
The beginning of the end of the UN Special Procedures?
As we upload this issue of ACHR REVIEW, the Office of the High Commissioner for Human Rights in consultation with the Expanded Bureau of the United Nations Commission on Human Rights is scheduled to start the seminar on Enhancing and strengthening the effectiveness of the special procedures of the Commission on Human Rights. The workshop is being held in Geneva on 12-13 October 2005 pursuant to the decision 2005/113 of the 61st session of the Commission on Human Rights following acrimonious debate on the Asian Group's Non-Paper on Enhancing the Effectiveness of the Special Mechanisms of the Commission on Human Rights" as part of the socalled effort to enhance and strengthen the effectiveness of the special procedures.
To any lay reader not closely following the debates on enhancing the effectiveness of the Special Procedure, the seminar may indeed sound a promising one. In reality, this is a part of evil design of the Asian governments to destroy the effectiveness of the Special Procedures.
1. The Asian Non-Paper:
The Asian Group's Non-Paper seeks to virtually destroy the advancement made in the field of human rights since 1970s in an attempt to stop any scrutiny by UN experts. It also seeks to exclude independent experts in the name of addressing conflict of interest, gag the independent experts in the name of developing code of conduct including guidelines for media interaction such as press releases, press conferences and statements, and virtually stop any communication from the Special Procedures in the name of criteria of admissibility of allegations of human rights violations and urgent appeals.
The Asian group also referred to the proposals contained in the report of the Open-ended Working Group on Enhancing the Effectiveness of the Mechanisms of the Commission (E/CN.4/2000/112) and decision (2000/109 of 26 April 2000) of the Commission on Human Rights on the issue. These recommendations have been fully implemented.
2. Issues for discussion:
The Secretariat of the OHCHR identified a few key areas for discussion as given below.
i. The role and functions of the Special Procedures
Undoubtedly, the Special Procedures have proven to be the most effective mechanisms of the Commission on Human Rights. And their effectiveness has become problematique for governments with poor human rights record.
Independence, impartiality and expertise in the selection of mandate-holders are common refrain of the human rights violators. In the name of ensuring such independence, the Asian Group in its Non-Paper recommended that There should be no conflict of interest between an individual's responsibility as a mandate holder and his other professional commitments. Specifically, the individual to be considered for appointment as a mandate holder should neither be holding a government post nor be a salaried member of an NGO or a member of the Governing Bodies of advocacy groups in the area of the mandate.
Finding a human rights expert in the South who is not a salaried member of an NGO or a member of the Governing Bodies of advocacy groups in the area of the mandate is akin to finding the Rosetta stone. It negates the universality, indivisibility and inter-dependence of human rights.
How does one define government post? Would a University teacher in China or Cuba be considered as not holding government post? What about the think-thanksor policy institutes set up by the governments across the world?
Indeed, any frank discussion on cooperation between Member States and mandate-holders, including the requests for visits and/or for responses to communications‚€Ě should be limited to those States which have issued standing invitations to the Special Procedures.
ii. Working methods of the mandate-holders
The agenda of the proponents of this workshop, the Asian Group, is not to increase efficiency but to bring in the issues like a code of conduct for the mandate holder of the Special Procedures, criteria for admissibility of allegations of human rights violations and censoring country visit reports prior to their submission to the Commission on Human Rights.
The Asian Group's Non-paper states Letters containing human rights allegations from special mechanisms to member states under stamped signatures is a legal infirmity. Letters transmitting such allegations should be personally signed by the mandate holders.‚€Ě
Given the proposal not to include any salaried person or advisory members from NGOs and government, such a proposal could be effective only if the Special Rapporteur are paid remuneration, posted with the OHCHR and able to undertake mission and address urgent human rights violations.
The Special Procedures suffer from incapacity to follow up. According to the OHCHR, in 2004 over 1,300 communications were sent to 142 Governments, addressing 4,448 individual cases. There is very little follow-up, however, to these reports and communications, and the rapporteurs themselves (who serve in a volunteer, part-time capacity) are not in a position to follow up, especially on individual cases.
Unless mechanisms could be developed to follow up the cases, the credibility of the Special Procedures will continue to suffer.
iv. Cooperation with NGOs
Without the support of the NGOs, most Special Procedures would not be able to fulfill their mandate. The NGOs continue to provide key information to the mandate holders.
Yet, in all the discussions on the effectiveness of the Special Procedures, NGOs from the South has been often left out due to a host of factors including the lack of resources while their governments continue the onslaught to destroy the Special Procedures. It goes without saying that there are more human rights violations in the South and therefore, the need to approach the Special Procedures.
One of the key concerns of the Asian Group is alleged proliferation of the mandates of the Special Procedures. It could only be compared with the United States concern for nuclear proliferation!
The distinguished representative of the government of Pakistan under Agenda Item 18 of the 61st session of the CHR stated that there is a need to objectively assess if the proliferation of mandates was serving the cause of human rights.
The Asian Group which often complains about the proliferation of the mandates of the Special Procedures have been sponsoring the resolution entitled "Promotion of the enjoyment of the cultural rights of everyone and respect for different cultural identities" since the 58th session. Since then, it has been recommending the possibility of appointing a Special Rapporteur. In its three paragraphs report (E/CN.4/2003/51) to the 59th session, High Commissioner for Human Rights concluded, No new information has been received concerning the above-mentioned resolution since the Secretary-General's report to the General Assembly on human rights and cultural diversity (A/57/311 and Add.1)". Yet the same resolution was adopted at the 59th session and at the 60th session (E/CN.4/RES/2004/20), although majority respondent States opined against the appointment of a Special Rapporteur. At the 61st session, the CHR once again adopted the resolution E/CN.4/RES/2005/20 with the same request while stressing the importance to avoid overlapping with the activities of the United Nations Educational, Scientific and Cultural Organization and other bodies and organizations of the United Nations system when establishing the mandate of the independent expert and to bear in mind the significance of encouraging synergy between all actors dealing with cultural rights and the issue of cultural diversity.
Such hypocrisy is not new to the Commission on Human Rights.
Given the lack of specific proposals on the mandate, power and functions, membership etc of the proposed Human Rights Council, the discussion on the relationship between the Special Procedures and Human Rights Council is likely to be perfunctory. The seminar is not so much about enhancing and strengthening the effectiveness of the special procedures as it preaches. It is all about stopping the human rights violators from Asia who are at the gate from destroying the effectiveness of the Special Procedures.
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