THE HUMAN RIGHTS COUNCIL AND COUNTRY SITUATIONS

Transcription

1 THE HUMAN RIGHTS COUNCIL AND COUNTRY SITUATIONS FRAMEWORK, CHALLENGES AND MODELS Study on behalf of the Swiss Ministry of Foreign Affairs (Political Division IV) by Dr. Walter Kälin Cecilia Jimenez, attorney at law Dr. Jörg Künzli and Mirjam Baldegger, attorney at law Institute of Public Law, University of Bern (Switzerland) Bern/Geneva 7 June 2006

2 TABLE OF CONTENTS I. Introduction Context Terms of Reference Content and Structure of the Study...1 II. Universal Periodic Review Overview Basic Requirements Objective and reliable information Universality of Coverage and Equal Treatment with Respect to all States Focus on the Fulfilment by each State of its Human Rights Obligations and Commitments Cooperative Mechanism, Based on an Interactive Dialogue Taking into Account Capacity-Building Needs Complementing, not Duplicating the Work of the Treaty Bodies Preparation and Outcome of the Review Preparation Outcome and Follow-Up Model 1: Examination by the Full Committee Model 2: Examination by a Chamber/Committee of the Council Followed by the Adoption of Conclusions by the Full Council Model 3: Examination by a Committee of Experts Followed by the Adoption of Conclusions by the Full Council...13 III. Addressing Country Situations Outside the Universal Periodic Review Overview Promotion, Protection and Prevention: The Council s Three Country Related Mandates Basis for the Consideration of Country Situations Situations of Gross and Systematic Violations Situations for capacity-building, i.e. human rights education, technical cooperation and advisory services Situations raised by thematic special procedures Situations emanating from the considerations within the Universal Periodic Review mechanism Conclusion The Future of the 1503-Procedures...20 IV. Lessons learnt from other Organizations Peer Review Systems NEPAD ILO Other Monitoring Systems...25 V. Conclusions and Recommendations Universal Periodic Review Addressing Country Situations outside the Universal Periodic Review Lessons Learnt from other Organizations...29 Annex...29

3 I. INTRODUCTION 1. Context The UN General Assembly adopted, on 15 March 2006, Resolution 60/251 establishing the Human Rights Council (hereinafter Council). The Council replaces the UN Commission on Human Rights. Among others, the Council is tasked, according to operational paragraph (OP) 5, subparagraph c, with promoting the full implementation of human rights obligations undertaken by States, undertaking a universal periodic review, based on objective and reliable information, of the fulfilment by each State of its human rights obligations (OP 5, subparagraph e), and contributing through dialogue and cooperation, towards the prevention of human rights violations as well as responding promptly to human rights emergencies (OP 5, subparagraph f). Thus the Council has a clear mandate to deal with country situations. 2. Terms of Reference The Swiss Federal Department of Foreign Affairs (Political Division IV) asked us to conduct a study and prepare proposals addressing the following issues: 1. What does GA Resolution 60/251 say about the manner of dealing with the situation of human rights in a particular country? 2. How should the Human Rights Council undertake the universal periodic review of the fulfillment by each State of its human rights obligations? What models would be possible? 3. How should the Human Rights Council address country situations outside the universal periodic review? 4. How are other relevant organizations dealing with country situations and what can be learnt from those experiences? 3. Content and Structure of the Study To what extent is the Human Rights Council entitled to address country specific human rights situations? In what circumstances is the Council authorized to undertake reviews of the human rights situation of a particular State and in which manner are these monitoring activities to be undertaken? These questions can be answered by looking at General Assembly Resolution A/RES/60/251 (hereinafter referred to as the Resolution). It entitles the Council to deal with country situations in three different contexts, namely by (i) undertaking a universal periodic review of the fulfillment by each State of its human rights obligations and commitments; (ii) addressing situations of gross and systematic violations of human rights; and (iii) dealing with other situations of human rights violations. 1

4 This study first examines the universal periodic review (section II), then discusses the Council s powers and possibilities to address situations of gross and systematic violations of human rights and of other instances of human rights violations in a particular country (section III), goes on to provide an overview of experiences by other organizations (section IV) and ends with a set of conclusions and recommendations. 1 II. UNIVERSAL PERIODIC REVIEW 1. Overview OP 5 (e) of Resolution 60/251 on the new system of Universal Periodic Review (UPR) reads: (e) Undertake a universal periodic review, based on objective and reliable information, of the fulfilment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States; the review shall be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity-building needs; such a mechanism shall complement and not duplicate the work of treaty bodies; the Council shall develop the modalities and necessary time allocation of the universal periodic review mechanism within one year after the holding of its first session. This paragraph of the Resolution not only entitles but obliges the Council ( the Council shall ) to undertake a universal periodic review of each State s human right obligations and commitments. The authority of the Council to periodically monitor the human rights situation of each and every State regardless of the seriousness of the situation is thus out of question. Certainly, this broad power is the most important innovation adopted in the context of the present reform 2. The UPR has to meet six basic requirements. According to OP 5 (e) of the Resolution it must: 1. be based on objective and reliable information; 2. ensure universality of coverage and equal treatment with respect to all States; 1 The study takes into account the several non-papers prepared by governments in the course of recent discussions but, due to their nature, does not quote them. 2 Arguably, except in the case of discussions of reports submitted to it by the thematic mandates of the special procedures (which however, did not lead to country related resolutions), the former Human Rights Commission could only deal with situations of gross and systematic violations. 2

5 3. focus on the fulfillment by each State of its human rights obligations and commitments; 4. be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned; 5. take into account capacity-building needs of the country concerned; and 6. be framed in a way that complements and not duplicates the work of treaty bodies. This section first analyzes these basic requirements in more detail and then discusses three models for the implementation of the UPR, namely (1) Review by the full Council; (2) Review by a Committee of the Council followed by conclusions and recommendations adopted by the full Council; (3) Review by a chamber of eminent experts followed by conclusions adopted by the full Council. 2. Basic Requirements 2.1 Objective and reliable information According to OP 5(e), the review has to be based on objective and reliable information. Thus, it cannot be based solely on information provided by the State concerned but must take into account other information, e.g. information made available by the treaty bodies, the special procedures or the Office of the High Commissioner on Human Rights (OHCHR), commissions of inquiry and the High Commissioner on Human Rights herself or the Secretary General of the UN. This task of considering the information provided by other human rights organs is further emphasized by OP 3 of the Resolution tasking the Council with coordinating and mainstreaming the human rights activities of the UN. Moreover, objective and reliable information is information from reliable sources, i.e. information collected by individuals and institutions possessing the requisite experience and recognized expertise. In the area of international human rights, such sources comprise primarily reports and similar documents prepared by: UN treaty bodies, special procedures 3 and commissions of enquiries 4 ; OHCHR field offices and UN human rights monitoring missions, in particular those run by OHCHR or being part of UN peace-keeping or civilian missions 5 ; 3 See the present mandates at and 4 See e.g. the report of the Commission of Inquiry on Darfur of 25 January 2005 at: 5 A full list is available at 3

6 UN organizations and agencies active in the area of human rights, such as UNHCR (refugees and IDPs), UNICEF (rights of the child), ILO (labour rights), UNDP (rule of law), UNESCO (right to education) and others; the UN Secretary General; National Human Rights Institutions (NHRIs) such as National Human Rights Commissions or National Human Rights Institutes to the extent that they are based on the so called Paris Principles 6 ; Non-governmental organizations (NGOs) having observer status with the Human Rights Council and being recognized for their independence and expertise; Academic research institutions specialized in human rights matters. 7 In order to ensure that the review is based on objective and reliable information, material from these sources must be collected and made available in advance. OHCHR should be asked to compile relevant information contained in UN documents on each State that will be examined in advance of the UPR. In order to avoid overburdening OHCHR and avoid extensive financial implications, this should be done by an index making all relevant information from UN sources, in particular from treaty bodies and special procedures, easily accessible. The Human Rights Index/Country by country compilation presently developed by the Institute of Public Law of the University of Berne may facilitate this task. The relevance of the different sources will depend, to a large degree, on the country and its willingness to cooperate with the UN human rights mechanisms: For States regularly reporting to the treaty bodies and closely co-operating with special procedures, Concluding Observations of treaty bodies and mission reports by special procedures should be the main source of information. NGO information is relevant too, but much of it will already be reflected in these UN documents. The fact that a country is delaying submission of reports to the treaty bodies and/or failing to co-operate with special procedures should not create any advantages for it. Here, relevant information, including from regional systems and NGO sources, will provide the main basis for the review. If, in exceptional cases (e.g. small island States) none of the sources listed above provides sufficient information, media reports may become relevant, 6 National institutions for the promotion and protection of human rights, General Assembly resolution 48/134 of 20 December In addition, information provided by regional human rights mechanisms may also be taken into account, in particular if the UN does not have sufficient information about a particular situation. 4

7 or the Council may ask OHCHR to do an assessment and send, with the agreement of the country concerned, a fact finding mission. 2.2 Universality of Coverage and Equal Treatment with Respect to all States The requirement of universality of coverage with respect to all States means that all States must be submitted to the UPR, regardless of their human rights record. This has to happen periodically and in an order based on criteria determined in advance. It is, however, compatible with the requirement of equality to require that States that are members of the Human Rights Council are in any case examined during the duration of their term of office (see OP 9). Equal treatment of all States requires that the procedure must be more or less the same for all States but cannot mean that the outcome will be the same. Rather, the principle of equality requires treating equally what is equal and, to the extent that differences exist, unequal what is unequal. Thus, it must be possible, to react in different ways to different degrees of respect for human rights obligations. Equality of treatment cannot mean that States taking effective steps to address their human rights problems, co-operating closely with the UN treaty bodies and special procedures and/or having a good human rights record are exposed to the same level of scrutiny as those that violate human rights systematically and do not show any serious willingness to improve the situation. One important aspect of the equality of treatment of States is the chronological order of the examination. The resolution is silent about the priorities of the order of States to be periodically reviewed. However, the requirement of universality of coverage and equal treatment of all States suggests that every State, irrespective of its human rights record, must be reviewed by the Council within a certain period of time. Further guidance as to the order of the review may be deduced from other provisions of the Resolution: In this respect, preambular paragraph (PP) 9 emphasizes the importance of ensuring universality, objectivity and non-selectivity in the considerations of human rights issues, and the elimination of double standards and OP 4 provides that the work of the Council has to be guided by the principles of universality, impartiality, objectivity [and] non-selectivity. Thus, the order of the review has to be based on objectively defined standards, which ensure the universal coverage of the review. Possible criteria may include the following: Members of the Council should be reviewed during their tenure. Those elected for an abbreviated membership of one or two years should be reviewed first. Other States should be selected either by alphabetical order or lot with a system that ensures fair geographical distribution of the countries being reviewed. 5

8 While the (problematic) human rights record of a specific State should not be a reason to prioritize the review of such a State within the framework of the UPR, the Council has the competence to address systematic violations of human rights at any time (see below part. IV) outside the context of the UPR. How often should States be reviewed, i.e. how long should one review cycle last? If reviews are taking place too often, the burden for the Council becomes too heavy and there is a risk of too many repetitious discussions. If the cycle lasts too long, the UPR looses its effectiveness. We propose a six year cycle for two reasons: A workload of a bit more than 30 countries per year is realistic and feasible, leaving enough time for other issues the Council has to deal with. Five to six years is in reality the average reporting cycle of the treaty bodies, thus ensuring that the Council has a new set of information in front of it each time it reviews a State, provided that the country concerned fully cooperates with the treaty bodies. 2.3 Focus on the Fulfilment by each State of its Human Rights Obligations and Commitments According to OP 5(e) of the Resolution, the Council, with regard to the State in question, has to review its obligations and commitments. Thus, the benchmarks used by UPR to assess a country situation cannot be reduced to the hard core of human rights that are protected by international customary law and binding upon every state. Rather, the clear wording of the resolution indicates that commitments made and obligations accepted by a State through ratification of treaties as well political commitments made by States in international UN Conferences must also be taken into account. In doing so, special focus has to be put on the interdependence and equivalence of civil and political and economic, social and cultural rights (OP 4) and the fact that all human rights must be treated in a fair and equal manner, on the same footing and with the same emphasis (PP 3). This conclusion finds additional support in PP 4, subject to which all States, regardless of their political, economic and cultural systems, have the duty to promote and protect all human rights and fundamental freedoms [emphasis added]. Member (and former Member) States of the Council may be submitted to a stricter standard of examination: OP 9 of the resolution obliges them to uphold the highest standards in the promotion and protection of human rights [and to] fully cooperate with the Council. Due weight should also be given to the voluntary Commitments and Pledges made by candidates during elections to the Council according to OP 8 of the resolution (e.g. the commitment to ratify a certain treaty, to withdraw reservations to a human rights convention or to strengthen the national implementation of human rights obligations). 6

9 These considerations lead to the following conclusion: The requirement of focusing on the fulfillment by each State of its human rights obligations and commitments requires the Council first to identify the specific obligations of the country concerned and the commitments made by it. Obligations flow first from the UN Charter and the Universal Declaration of Human Rights, and second from the UN conventions and optional protocols ratified by the State concerned 8. The latter obligations may be limited by (valid) reservations and (valid) declarations of derogations. Commitments are those made at the national level in the context of implementation of their international human rights obligations, e.g. in the form of national human rights action plans, as well as those made by virtue of their participation in international UN conferences, e.g. declarations coming out of the UN Conference against Racism. Pledges that States have made in support of their respective candidacies to become member of the Human Rights Council also constitute relevant commitments. How should the Council examine the fulfillment of obligations in the area of human rights? This question needs to be answered in the light of the requirements to take into account capacity-building needs of the country concerned and to avoid duplication of the work of treaty bodies. The following situations should be distinguished: The country concerned is regularly examined by (most) treaty bodies and/or visited by special procedures: Here, the main focus of the review should be on how the country cooperates with the treaty bodies and special procedures and how it follows up to their recommendations. The country concerned is not regularly examined by (most) treaty bodies and/or visited by special procedures: Here, the examination should focus on two issues: (1) on how the country cooperates with the treaty bodies and special procedures and how it follows up to their recommendations, and (2) on at least the most important areas not covered by treaty bodies and special procedures where available information shows the existence of problems in the implementation of the human rights obligations or even outright violations of the particular country. The country concerned fails to cooperate with treaty bodies and/or special procedures: Here, the examination should not only focus on the failure to co-operate and its reasons but also on at least the most important areas where available information shows the existence of violations or problems in the implementation of the human rights obligations of the particular country. In other words, an in-depth substantive examination should take place in such cases. To the extent that the country concerned has not ratified relevant treaties 9, the review has to focus on the actual situation of human rights in 8 The Council should not look at obligations of the States under regional instruments. 9 All member States of the UN have ratified at least one of the UN human rights conventions. 7

10 areas where it has obligations by virtue of the UN Charter and international customary law. 2.4 Cooperative Mechanism, Based on an Interactive Dialogue The review shall be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned (OP 5(e)). Thus, the review may not be reduced to adopting conclusions by the Council but has to be shaped as an interactive process between the Council and the State being reviewed. This view is further supported by PP 10, according to which, the promotion and protection of human rights should be based on the principles of cooperation and genuine dialogue and aimed at strengthening the capacity of Member States to comply with their human rights obligations for the benefit of all human beings. Additionally, according to OP 12 of the resolution, the work of the Council should generally allow for subsequent follow-up discussions to recommendations and their implementation. Thus, whatever the procedural model adopted, the UPR must fully involve the country concerned. This means that the State under examination has not only the right to present its views but must be engaged in a dialogue based on questions, answers and comments that aims at increasing the cooperation between the States concerned and the UN human rights organs. This obligation, however, imposes not only a duty of the Council and its members to conduct the dialogue in a constructive way but also binds the State concerned. Thus, it would be legitimate to criticize and put pressure on a country that refuses to answer questions or gives answers that fail to address the issues under scrutiny. The State concerned is not the only actor that should participate in the dialogue as, according to OP 5(h) of the Resolution, the Council has to work in close cooperation not only with Governments but also with regional organizations, national human rights institutions and civil society and therefore should give them an opportunity to participate in the review process. The participation of these other actors is, by itself, necessary for the conduct of a meaningful dialogue. 2.5 Taking into Account Capacity-Building Needs The review has to consider the capacity-building needs of the State concerned (OP 5(e)). Accordingly, the outcome of the review process should not be limited to identifying the deficits of the human rights record of the State being reviewed, but has to point out ways to overcome a certain situation and to recommend, if appropriate, technical assistance or advisory services. This makes it necessary to come to some formal conclusions at the end of the review process. 8

11 The requirement to take into account capacity-building needs of the country concerned refers to the outcome of the review and the conclusions and recommendations that may be adopted by the Council. It is the entry-point for technical assistance provided by UNHCR and other relevant UN partners (e.g. UNDP in the area of rule of law, UNICEF in the area of the rights of the child). OP 5(h) of the Resolution, according to which the Council has to work in close cooperation not only with governments but also with regional organizations, national human rights institutions and civil society, may be read as allowing the Council to suggest that governments cooperate with relevant regional organizations, national human rights commissions and NGOs in order to build their capacity. 2.6 Complementing, not Duplicating the Work of the Treaty Bodies Finally, the UPR shall complement and not duplicate the work of treaty bodies (OP 5(e)). Not to duplicate means first, that States cannot be requested to submit a country report to the Council. Second, the Council should refrain from reexamining the conclusions and recommendations made by the treaty bodies and it should not discuss any individual cases that are being examined under individual communication procedures by any of these bodies 10. As mentioned above, in the case of countries regularly examined by (most) treaty bodies the examination should focus on how the country cooperates with the treaty bodies and special procedures and how it follows up to their recommendations. In such cases, the complementarity of the UPR lies in its ability to follow-up on the work of the treaty bodies, to bear on the States concerned to implement the recommendations made and to identify ways to do that and/or needs for technical assistance. To complement the work of the treaty bodies becomes an especially important task for the Council in the case of countries that have ratified only very few treaties and/or fail to fulfil their reporting obligations. Here, the Council should undertake an in-depth review of the human rights situation in the country concerned and, where relevant, address the reasons for non-cooperation with treaty bodies. Non- or delayed reporting is one of the biggest problems and challenges for the treaty bodies today 11. To create an incentive for States that would be in 10 However, the Council can deal with instances of non-cooperation with the treaty body concerned (e.g. violations of interim measures of protection ordered by a treaty body; nonparticipation in the procedure, consistent non-implementation of views adopted) once the body concerned has adopted its views in a particular case. 11 See Concept Paper on the High Commissioner s Proposal to a Unified Standing Treaty Body, HRI/MC/2006/2, 22 March

12 line with the idea of complementarity of the UPR, one should, e.g. shorten the duration of the interactive dialogue for States that have submitted three or more reports to treaty bodies during the five years preceding the UPR. Nonor delayed reporting may also affect the basis of the review with regard to the capacity-building needs of the State concerned (see 2.3). These approaches could be reconciled with the requirement of equal treatment to the extent that unequal situation should be dealt with differently. 3. Preparation and Outcome of the Review 3.1 Preparation The strength and success of the UPR depends to a large extent on good preparation. Whatever the procedure adopted, the following three measures are recommended: OHCHR compiles relevant information, thereby creating a country profile by systematically indexing observations and recommendations made by treaty bodies and special procedures and other relevant information from UN sources (e.g. reports of commissions of inquiry, OHCHR and the Secretary General). OHCHR may also seek information from NHRIs and NGOs with observer status and reproduce them as annexes to the country profile. The country index thus helps to identify the main human rights problems in the country concerned. 12 A country task force 13 is appointed by the Bureau of the Council that will prepare and lead the actual dialogue. Such a system is necessary in view of the very considerable efforts needed to prepare a dialogue well. It also helps to ensure a good quality of the dialogue and allows at the same time for a division of labour, thus reducing the workload for those involved. In the context of the examination of State reports by treaty bodies, the drawing up of a list of issues (either in form of topics or of questions) to be discussed during the interactive dialogue has proven to be very useful for the preparation and conduct of the dialogue. A similar approach should be considered for the UPR and the rapporteur/country task force should be tasked with the preparation of such lists. In this case, States should have the possibility (but not obligation) to submit written replies to the questions in advance. 12 The country profiles, which are public, could be annexed to an Annual Report by OHCHR, which would allow building up, over a period of a few years, a reference tool on the state of human rights in the world. 13 The task force would by composed of a small number of representatives of States that are member of the Council. To appoint an independent expert chosen from a roster prepared by OHCHR with the task of preparing the dialogue could be an alternative. 10

13 3.2 Outcome and Follow-Up Outcome: After the interactive dialogue with the country concerned, the Council should draw its conclusions and, where relevant, make recommendations. Resolution 60/521 does not explicitly require such formal outcome of the UPR. However, the requirement to take into account capacity-building needs of the country concerned when reviewing a State (OP 5(e)) as well as the general requirement to contribute, through dialogue and cooperation, towards the prevention of human rights violations and respond promptly to human rights emergencies (OP 5(f)) make clear that the review does not end with the dialogue: Both obligations cannot be fulfilled by a simple discussion without any conclusions and recommendations. Recommendations made by the Council may include measures of technical assistance and capacity-building, invitations to special procedures to become active in specific regards, the establishment of fact finding or in-country monitoring missions by OHCHR (or in countries with integrated peace-keeping missions by such missions) or in the most serious cases the appointment of a country rapporteur or a commission of inquiry, or, in very exceptional cases, even the suggestion that the Security Council shall consider the issue. With regard to HRC Members who are under review, it must also be recalled that in addition to the HRC Member States being held to the highest standards in the promotion and protection of human rights (OP9), a Member committing gross and systematic violations of human rights may be suspended by the General Assembly from its right to membership (OP8). Thus, in such an extreme case, it is likewise possible that the UPR may result to the Council making a recommendation on such a suspension to the General Assembly. Depending on the situation and its assessment by the Members of the Council, conclusions and recommendations may take the form of a (short) chairperson s statement based on a consensus, including that of the country concerned, a short resolution with standard paragraphs (to be developed over time), or in cases of serious problems a more detailed resolution. This range of possibilities allows combining flexibility of the response with efficiency in the case of chairperson s statements and standard resolutions. Follow-up: The main follow-up measure is the consideration of the degree of progress made during the next round of the UPR when the Council will have to review the implementation of recommendations previously made by it. Follow-up measures such as capacity building projects, technical assistance provided by OHCHR and other relevant UN agencies, missions undertaken by special procedures depend on the content of the conclusions and recommendations adopted by the Council. The Council may also decide to discuss the situation of the country during a later regular session of the HRC in order to follow-up on its recommendations and to assess progress made. 11

14 3.3 Model 1: Examination by the Full Committee Preparation: see 3.1 above. Dialogue: The dialogue takes place during a public meeting of the full Council 14 (3 hours). The State under review opens with a statement highlighting areas of progress made in the implementation of its human rights obligations, of difficulties and obstacles encountered and measures taken to address these difficulties. This is followed first by a round of questions opened by the rapporteur/members of the country task force and then by other Members of the Council and by NGOs. National Human Rights Institutions and Special Rapporteurs should also be allowed to take the floor. The dialogue ends with the State concerned answering the questions raised and reacting to comments and final remarks by the chair summarizing the main points of the dialogue. States should be free to decide whether they are represented by diplomats or government-appointed independent experts. Taking into account that the dialogue as such should be of a non-political nature, the latter, however, would be preferable. Outcome of the review and follow up: See 3.2 above. Assessment: This model puts a huge burden on the Council and its Members in terms of time. To have a dialogue with the full Council present might not be very efficient and is not really necessary as long as the outcome of the dialogue is discussed in the plenary (see below, models 2 and 3). 3.4 Model 2: Examination by a Chamber/Committee of the Council Followed by the Adoption of Conclusions by the Full Council Preparation: see 3.1 above Dialogue: Model 1 is problematic as it is very time-consuming while due to the need to keep the dialogue relatively short the number of Council Members that are able to actively participate in the dialogue will be necessarily limited. These difficulties can be overcome if the actual dialogue is conducted by either one Review Committee or three Review Chambers of the Council consisting of a number of States small enough to be efficient and large enough to reflect the regional as well as political diversity of the Member States of the Council. Approximately 15 Members for the Review Committee or each of the Review Chambers seem to be a reasonable number. Assuming, the dialogues would last 3 hours each (= ½ day meeting) and that some additional (private) meetings would be needed to prepare the dialogues, the Review Committee 14 Members of the Council which are examined should not, at the same time, participate in the examination. 12

15 would need approx. 25 working days to examine 40 States per year, allowing to complete the full review cycle in 5 years. If one would opt for a system with Review Chambers, two Chambers with and one Chamber with Members seem a reasonable solution, allowing for examination of the same number in parallel sessions within a total of 8-10 working days with all Member States of the Council participating. The examination should proceed as outlined above (3.2 dialogue), except that in this model it is necessary for the Committee s/chamber s chairperson or rapporteur to prepare a report to the plenary. Member States should be free to decide who they delegate to the Committee or Chambers but should be encouraged to appoint a representative with expert knowledge. Outcome: See 3.2 above. Follow-up: See 3.2 above. Assessment: This model leaves the central role of the Council Members in the URP and thus the idea of peer -review intact but is less of a burden on the Members than model 1, is more efficient and improves the capacity of the Council to conduct a substantial number of dialogues. 3.5 Model 3: Examination by a Committee of Experts Followed by the Adoption of Conclusions by the Full Council Preparation: see 3.1 above Dialogue: Model 3 is procedurally very similar to Model 2, except that the Committee would be composed of independent experts nominated by the Member States. Outcome: See 3.2 above. Follow-up: See 3.2 above. Assessment: This model distinguishes clearly between an expert-phase (the dialogue) and a political phase (the decision about the outcome). It also unburdens Council Members and their delegations. At the same time, however, it reduces the peer-review character of the UPR to a rather important extent and risks to duplicate the work of the treaty bodies as the interactive dialogue would, in both cases, be conducted by independent experts. 15 Members of the Council which are examined should not, at the same time, participate in the examination. 16 Id. 13

16 III. ADDRESSING COUNTRY SITUATIONS OUTSIDE THE UNIVERSAL PERIODIC REVIEW 1. Overview A reading of the Resolution provides that the Human Rights Council, in addition to and outside of the Universal Periodic Review, is empowered to address country situations in the following circumstances: a) Situations of gross and systematic violations: According to OP 3 of the Resolution the Council should address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon [emphasis added]. This wording leaves no doubt that the Council is authorized to review situations of systematic violations not only thematically but also with a country-oriented perspective. At the same time, the term should indicates a certain obligation to do so. While the Council may not have, in addition to the periodic review of country situations, the capacity to address all situations of problematic human rights situations in a comprehensive manner, the above mentioned guidelines of non-selectivity, objectivity and impartiality and the goals of avoiding double standards and politicization of its work make it necessary to engage comprehensively with all situations of gross and systematic human right violations, irrespective of the responsible State, the victims concerned, or the rights violated being civil and political or economic, social and cultural rights. The main difference between dealing with gross and systematic violations and the UPR is the approach to be taken: While the UPR is focusing on the implementation of human rights obligations in a mid- or (especially where structural changes are needed) even long-term perspective, addressing gross and systematic violations is aimed at bringing short term relief to the victims. b) Other situations of violations of human rights (OP 3):. As the wording of paragraph 3 ( including situations of gross and systematic violations ) clearly indicates that the authority of the Council to address situations of human rights is not limited to gross and systematic violations of human rights, but rather includes situations of human rights violations in a general manner. Here too, the objectives of impartiality, universality and objectivity indicate that the Council may establish in advance criteria subject to which it will address a specific situation. These are mainly situations where capacity-building activities are called for outside the UPR or where special procedures raise issues related to a particular country (e.g. in the context of a report on a country mission (see below IV. 3b and c)). 14

17 c) Situations, where the Human Rights Council will promote human rights education and learning, as well as advisory services, technical assistance and capacity-building. This has to happen in consultation and with the consent of the Member States concerned (OP 5(a)). d) Situations, where the Human Rights Council will promote the full implementation of human rights obligations undertaken by States (OP 5 (d)). e) Situations, where the Human Rights Council will contribute towards the prevention of human rights violations (OP 5(f)). In addition, the Resolution specifies that the Human Rights Council will make recommendations with regard to the promotion and protection of human rights in general (OP 5(i)). The general language of this provision makes it clear that it applies to the basic functions of the Human Rights Council in its consideration of both thematic issues and country situations. 2. Promotion, Protection and Prevention: The Council s Three Country Related Mandates This overview shows that, in relation to country situations, the Council has three mandates: A promotion mandate, i.e. the mandate to take measures to promote the protection of human rights in a given country, in particular through educational and capacity-building/technical assistance activities which would support the implementation of the obligations and the commitments of the State concerned. A protection mandate, i.e. the mandate to take steps aimed at protecting victims of human rights violations: The specificity of such a protection mandate in the Resolution is significant. It will be recalled that the protection mandate of the erstwhile Commission on Human Rights was the fundamental motivation for the establishment of the CHR s different agenda items of country situations. The inclusion of the protection mandate in the Resolution makes clear that the Human Rights Council is empowered to establish and/or maintain mechanisms that could implement approaches to protect actual or potential victims of human rights violations. Such approaches can only be possible with the direct consideration of country situations. A prevention mandate, i.e. the mandate to take measures aimed at ensuring that human rights violations do not occur or re-occur. Here too, the provision of technical assistance and the like to the States under consideration play an important role. Moreover, the mere consideration by the international community, through the HRC, of a situation that is potentially at 15

18 risk of violations would send strong signals of concern to the State concerned. The Human Rights Council can decide to take up any type of situation referred to above (section IV.1) that the resolution provides for. In doing so, the Council s roles in the prevention of human rights violations and the protection and promotion of human rights are actually complimentary and may even overlap. For example, the Human Rights Council may be able to prevent further escalation of violations in a country situation when addressing obvious or even gross and systematic violations of human rights. Similarly, the Council, by promoting human rights through any of its mechanisms, actually enhances the protection of human rights and prevents or reduces the risk of potential violations With regard to all three mandates it is important to recall that the Resolution underlines that the over-all work of the Human Rights Council shall be governed by the principles of universality, impartiality, objectivity and nonselectivity, constructive international dialogue and cooperation (paragraph 4) and to emphasize that these principles apply to the Human Rights Council s consideration of country situations as well. This therefore does not rule out the possibility of adopting country resolutions outside the context of the UPR. OP 3 clearly says that the Council should make recommendations when addressing situations of violations of human rights, including gross and systematic violations, and nothing indicates that this possibility is limited to the UPR as provided for by OP 5(e). What is new as compared to the country resolutions of the former Human Rights Commission under item 9 of the old agenda is the following: Such resolutions should not be limited to condemn the country concerned but cover all three mandates of the Council as appropriate in a given situation. Country resolutions thus should no longer be equated with singling out violators but should, to the extent justified by the concrete case, make use of the full possibilities given by the triple mandate to promote, protect and prevent. This means that resolutions could commend a State for its achievements and efforts to cooperate with the UN in dealing with remaining problems; put the emphasis on encouraging it and addressing its capacity-building needs; condemn it for continuing violations and its unwillingness to improve the situation and to cooperate with the UN in this regard; or combine any of these elements. 3. Basis for the Consideration of Country Situations Given the broad mandate of the Human Rights Council and the diverse country situations that the Council may decide to take up, the basis for the consideration of country situations would nonetheless be based on assessments of 16

19 whether or not the Council can effectively make an impact for the improvement of a given situation. This would necessarily be based on the Council s appreciation of the current compliance of a State with its human rights obligations as well as human rights commitments, including an assessment of the state of human rights violations occurring, which may or may not be gross and systematic. Generally, the following non-exhaustive list may trigger the Council s consideration of a country situation: 3.1 Situations of Gross and Systematic Violations According to OP 3, the Council should address situations of [ ] gross and systematic violations, and make recommendations thereon. This wording makes clear that addressing situations of gross and systematic violations of human rights is one of the tasks of the Council which it has to carry out itself. There have been suggestions that the Council should defer such situations to the 3 rd Committee of the General Assembly. This would not be compatible with the wording of OP 3 (asking the Council to make recommendations in cases of gross and systematic violations) and the spirit of the Resolution, which clearly establishes the Council as the mainly responsible body to address human rights violations. This does, however, not exclude the possibility for the Council to propose, as part of its recommendations, that the General Assembly and/or the Security Council also address the situation. Situations of gross and systematic violations can be addressed during regular sessions of the Council if they are ongoing or if a new situation emerges while the Council is in session. In addition, OP 10 creates the possibility for holding special sessions, when needed, at the request of a member of the Council with the support of one third of the membership of the Council. Such sessions should be considered if gross and systematic violations emerge inbetween sessions (e.g. in the case of massacres, genocide and the like). Situations of gross and systematic violations in the sense of OP 3 include: - Country situations, where gross and systematic violations are still ongoing or just have finished at the time of their tabling in the Council. Here, the basic purpose of the examination of the situation would be to immediately initiate or enhance the protection of human rights in that country and prevent the further deterioration of the situation; or - Country situations, where there is a pattern of violations that risks to escalate into gross and systematic violations if the situation is not being addressed properly. Here, the Council would mainly act in a preventive manner. Moreover, based on the principles of universality, impartiality, objectivity and non-selectivity, as well as inter-dependence, relevant human rights violations 17

20 should be regarded as pertaining to civil, political, economic, social or cultural rights, including the right to development. These requirements also suggest that similar to the UPR the Council should base its assessment on relevant information that might include reports by special procedures, commissions of inquiry, or of the Secretary General to the Security Council. PP 6, by ascertaining that development, peace and security and human rights are interlinked and mutually reinforcing, provides some guidance as to what the Council can do in such situations: The Council may generally address the implementation of human rights situations inter alia during international or internal armed conflicts or during situations of mass flights or during humanitarian crisis including natural disasters, where human rights are threatened. In such cases, it is necessary to take into account activities by OCHA, DPKO etc. and to work in a complementary fashion. The Resolution s emphasis on cooperation with States applies, in principle, also to situations of urgency, triggered by gross and systematic violations. This suggests a phased approach: The Council should try first to get the cooperation of the State concerned in assessing the facts, e.g. by allowing a joint mission of special procedures with mandates that are relevant in the particular situation or agreeing to another form of fact finding in the country concerned, and second to come to an agreement with it regarding measures to be taken to improve the situation (including, e.g. the establishment, with the agreement of the State concerned, of a system of in-country monitoring by OHCHR). It has to be stressed, however, that cooperation cannot be a one-way street. If the State concerned refuses genuine cooperation, the Council is entitled to take measures that are appropriate in the circumstances of the case and may include the recommendation that special rapporteurs undertake a visit, that the State concerned implement as a matter of priority and within a certain time-limit certain recommendations coming from the UN system, the appointment of a country rapporteur or the suggestion that the General Assembly or Security Council 17 look into the situation. In any case, situations of gross and systematic violations require a certain degree of continued monitoring by the Council, and resolutions or chairpersons statements should contain a provision of the automatic continuation of the Council s consideration unless there is a clear improvement in the actual situation. In addition to continuous monitoring, if the State concerned is a Member of the HRC and is found by the HRC (even outside the UPR) to be committing gross and systematic violations of human rights, the Council may 17 According to Article 35 UN Charter, any UN Member State may bring any situation that is likely to endanger the maintenance of international peace and security to the attention of the Security Council or of the General Assembly. It is recognized today that situations of gross and systematic violations may amount to Article 35 situations. 18