The United Nations Human Rights Council - a new beginning?

Dr. Ruwantissa Abeyratne

HUMAN RIGHTS: The United Nations General Assembly, on March 15, 2006, decided to replace the existing Human Rights Commission with a new Human Rights Council, which is responsible for promoting universal respect for the protection of human rights and fundamental human rights for every citizen of the globe fairly and equally without any distinction of any kind.

The Council, based in Geneva, was established through General Assembly of Resolution 60/251 by an overwhelming vote of 170 to 4 with 3 abstentions. The first members of the Council were elected on May 9, 2006 and their term of office commenced on 19 June 2006.

The new Human Rights Council, which will be held directly accountable to all members of the United Nations, is a subsidiary body of the General Assembly. Henceforth, the Council will be the foremost forum within the United Nations umbrella for discussion, dialogue and cooperation on human rights issues.

Its main function would be to assist member States with their human rights issues through a program of dialogue and technical assistance. Another important function of the Council would be to recommend to the General Assembly from time to time the development and adoption of international law in the field of human rights.

In contrast to its predecessor, the Commission on Human Rights, which was comprised of 53 members, the Human Rights Council will be composed of 47 members. Council members will serve a term of three years with a possible extension of another three years, but will not be eligible thereafter for immediate re-election.

Any member State could have its representative in the Council subject to election by secret ballot by the usual absolute majority of 96 votes of the total membership of the General Assembly. The membership in the Council will be a geographic spread with 13 seats for Asian countries, six seats for the Eastern European States, eight for the Latin American and Caribbean States and seven for Western Europe and other States.

The Council will meet regularly throughout the year and is required to have at least three sessions during a calendar year. The main session of these is required to go on to at least ten weeks.

Additionally, the Council could hold special sessions at the request of a member State if one third of the Council approves of such.

Contribution

Member States of the Council are expected to take into particular consideration the contribution toward human rights of candidates for election. One of the differences between the now defunct Human Rights Commission and the new Human Rights Council is that the latter will submit voluntary pledges and commitments to the General Assembly with regard to the protection and furtherance of human rights.

Members of the Council will also be subject to periodic review in terms of their performance, efficiency and contributions.

Consequently, any member State which is found unacceptable during its term of office could lose its voting rights and privileges which would be withdrawn by a two thirds majority of a General Assembly vote. The Council will remain open to observers including non-governmental and inter governmental organisations, national human rights institutions and specialised agencies of the United Nations, based on the same arrangements that were applicable to the Human Rights Commission.

On March 15, 2006 when the Human Rights Council was established, UN Secretary General Kofi Annan issued a statement to the effect that Resolution 60/251 was a historic one which gives the United Nations a much needed chance to make a new beginning in its work on human rights throughout the world.

He said that the Resolution gives the United Nations a solid foundation on which each person and nation must build a strong framework on human rights that would withstand threats to the protection of Human Rights.

Now, to use the words of the Secretary General, "the real work begins". He went on to say that the true test of the Council's credibility would be the role played by the member States in keeping to their pledges and commitments.

While this is indeed true, what is most needed urgently is the full use of the Council's mandate to recommend globally applicable international laws and the enforcement by the General Assembly of the worldwide application of such laws through the principles of global responsibility.

The first step would be to identify basic human rights and build a framework that would protect them first and foremost. As Alan Dershowitz, well known legal scholar and authority on constitutionalism says, the basic protection of human rights starts at the least desirable level of existence.

Although this is a minimalist approach, it is arguably the best starting point and perhaps the only one we have. Human rights can be classified in the following manner: security rights that protect people against crimes such as murder massacre; torture and rape; liberty rights that protect freedoms in areas such as belief and religion association, assembling and movement; political rights that protect the liberty to participate in politics by expressing themselves, protesting, participating in a republic; due process rights that protect against abuses of the legal system such as imprisonment without trial, secret trials and excessive punishments; equality rights that guarantee equal citizenship, equality before the law and non-discrimination; welfare rights (also known as economic rights) that require the provision of education and protections against severe poverty and starvation; and group rights that provide protection for groups against ethnic genocide and for the ownership by countries of their national territories and resources.

A right is something due to a person by just claim, legal guarantee or moral principle. It is a power, privilege or immunity accrued to a person by law and is a legally enforceable claim that another will do or will not do a given act. It is also a recognised and protected interest, the violation of which is wrong.

Therefore, the starting point should be in the words "just claim" "legal guarantee and "moral principle". These claims and guarantees based on moral principles should be justiciable.

This brings to bear an interesting phenomenon in the field of human rights. Most civilized nations of the world today have legislation protecting the first tier of human rights which are the most fundamental.

Those are the right to life, liberty and security of person. However, in many jurisdictions there are no legislative instruments that protect the second tier of rights which are now considered equally important.

They include, but are not limited to the right not to be discriminated on the basis gender, particularly in instances of employment, the right not to be sexually harassed, the right not to be exploited on the basis of age and the right of the child not to be enslaved or used for military purposes.

Although these rights are all embodied in one form or another in the only global instrument on human rights i.e. the Universal Declaration of Human Rights, unfortunately this document remains a mere declaration lacking the enforcement powers of a treaty. Indeed there are many United Nations resolutions which deal individually with separate areas of human rights and it could be one of the initial tasks of the 47 member Human Rights Council to take a fresh look at consolidating these in the current exigencies of the world.

Facts

One of the blatant facts about primary and secondary human rights is that primary rights come to the fore in the case of emergencies or war.

The right to life may be in question when an emergency is declared by the government or there is an outbreak of war. Similarly, one's liberty or security may be threatened and even compromised under such circumstances. Marshall law should be, as Justice Oliver Wendell Holmes once said, be preventive rather than punitive and must be calculated to avoid the harm to persons and property that it sometimes causes.

The link between human rights and globalisation is another issue that deserves consideration. Globalization, which essentially means the removal of geographic boundaries for purposes of trade and certain other areas of human conduct, imposes certain obligations on the international community to assist nations and their people in distress.

Although it is heartening that nations come to the assistance of their neighbours in distress anyway, as was seen in the aftermath of the tsunami of December 2004, there must be legal recognition of this fact, endorsed by the nations of the world based on the principles of international responsibility.

A good example of cooperation between nations to further friendship and understanding among the people of the world is the Convention on International Civil Aviation, signed at Chicago on December 7, 1944, in which the Preamble exhorts the nations of the world to use civil aviation to create and preserve friendship and understanding among all people. Under the Convention, relief flights are openly encouraged, and the world has now come to consider relief flights as an inherent right of those in distress.

From a trading perspective, the right enshrined in the Chicago Convention for efficient and sustained air services was enforced by all nations who got together under one roof in the International Civil Aviation Organisation immediately after the unfortunate events of September 11, 2001 and unanimously decided to indemnify the world's airlines against the withdrawal by the insurance underwriters of third party war risk insurance coverage on September 24, 2001.

This collective act by the States enabled the commercial airlines to keep flying and the business world to continue to function.

This is once again an action by the global community to ensure the protection of the right of the individual to engage in trade without hindrance. As the United Nations Secretary General said in his address to the United Nations Association of the United Kingdom on January 31, 2006 in Westminster, "We are all in the same boat.

More than ever before, the human race faces global problems - firstly from poverty and inequality to nuclear proliferation, from climate change to bird flu, from terrorism to HIV/AIDS, from ethnic cleansing and genocide to trafficking in the lives and bodies of human beings. So it obviously makes sense to come together and work out global solutions. And secondly, the three freedoms which all human beings crave - freedom from want, freedom from war or large scale violence and freedom from arbitrary or degrading treatment are closely connected".

Injustice

In a world full of wrongs, rights of the human have never been so important to us. They are often analogous to our health and loved ones. We tend to take them for granted until they are taken away or endangered and we appreciate them most when we are in danger of losing them.

However, the question is, if human rights were to be recognised on the basis of injustice, how could one identify injustice in the absence of a paradigm of justice? The answer would lie in the fact that although one could not pinpoint justice, any decent and intelligent human could recognize injustice when he sees it. Examples are the Holocaust during World War 2, the genocide in Rwanda and ethnic cleansing in the Balkans.

The protection of human rights is the most significant and important task for a modern State, particularly since multi ethnic States are the norm in today's world. The traditional nation State in which a district national group rules over a territorial unit is fast receding to history.

Globalisation and increased migration across borders is gradually putting an end to the concept of the nation State, although resistance to reality can be still seen in instances where majority or dominant cultures impose their identity and interests on groups with whom they share a territory.

In such instances, minorities frequently intensify their efforts to preserve and protect their identity, in order to avoid marginalisation. Polarisation between the opposite forces of assimilation on the one hand and protection of minority identity on the other inevitably causes increased intolerance and eventual armed ethnic conflict. In such a scenario, the first duty of governance is to ensure that the rights of a minority society are protected.

We have learnt from past experiences. For example, when the World Trade Centre and the Pentagon were attacked by extremists of the Islamic faith, the majority of whom were from the Wahhabi sect from Saudi Arabia, no one suggested that Muslims, Wahhabis or Saudi Arabian nationals should be rounded up and detained, similar to the detention of Japanese in the aftermath of World War 2.

This is because the American people consensually recognise that despite a Supreme Court decision approving the Japanese round up, it was wrong to do so. The right not to be rounded up, detained or confined on the basis of race, religion or national origin is now accepted and acknowledged. Such a right did not grow from enacted law but from experience.

Therefore, although such rights are technically entrenched in a Bill of Rights or Constitution, they should not be limited to the law that is written down but be extended whenever required to include new rights if an injustice or wrong is about to be committed.

The bottom line in the human rights debate is the fact that people rule in a democracy. Any judicial decision which is perceived to go against the interests of the people will not long survive, particularly if it contradicts the long felt experiences of the people.

This is one reason human rights should not stop at the courts but go before the people. Rights come from a source external to law itself and therefore there is a palpable advantage in building a framework of rights on acknowledged wrongs rather than on idealised perfection.

Rights ensure liberty, equality and fairness and should be constantly innovated to counter wrongs. As Dershowitz says, "Because there will always be wrongs, there must always be rights". This should surely be the basis for a new beginning.

(The writer is the Coordinator, Air Transport Programmes International Civil Aviation Organisation, Montreal, Canada).