HRC - a butterfly or a caterpillar with lipstick?

Text of the speech delivered by Mohan Pieris, PC Senior Advisor to the Cabinet on Legal Affairs, former Attorney General and chairman Seylan Bank to the Rotarians on May 8, 2012

The ides of March have come and gone but the passage of the famous or infamous US sponsored resolution on Sri Lanka continues to provoke discussion and discourse not to mention the controversy it has raised among us on its pros and cons. So when I was invited to be among you this evening the Rotarians - the kind of enlightened gentlemen who have banded themselves into one of Sri Lanka's reputed service oriented organizations, I thought it opportune that I should share some thoughts with you on the United Nations Human Rights Council as a body and tell you what I feel is the legal impact of this resolution. That overview of the body - the scope and extent of its powers - will put the resolution in its correct perspective.

That will also strengthen my argument that the resolution finds not place in the overarching scheme of the building blocks of the Council.

HR Commission (1948-2006)

The Human Rights Commission (HRC) - the predecessor to the Human Rights Council - was established in 1948 - the year we gained independence.

This Commission in fairness to it did some useful work. Immediately after its formation, it focused its attention on drafting the major human rights document of the world - the Universal Declaration of Human Rights (UDHR). It was adopted as a General Assembly Resolution on December 10, 1948 - a day we celebrate every year as International Human Rights Day. As a General Assembly Resolution we call it a soft law which means a legally non binding document. But its uniqueness lay in its trend setting standards such as right to freedom and equality and freedom from discrimination. It was trend setting because most countries adopt them in their constitutions.

You would observe that they find their place in our 1978 constitution too.

This Commission brought forth some other standard setting international contentions to which Sri Lanka became a party - such as the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic Social and Cultural Rights (ICESC) and the Convention on the Rights of the Child (1989). In fact our National Action Plan on Human Rights has the goal of progressively improving these covenant rights. So much for the good work of the Commission. But there is a flip side to the Commission.

Anti-Third World bias

Towards the 1980s it was widely accepted that the Human Rights Commission began to sport a Western and anti-Third World bias.

The Commission passed almost no country - specific resolution against any Western country, as all of its attention was focused on small Third World countries that had the misfortune of being caught up in the maelstrom of the formal end of the Cold War - countries such as Cambodia or El-Salvador. Indeed, countries like these remained continuously on the Commission’s agenda during the 1990s.

So the Third World Countries no longer looked at the UN Human Rights Commission as a weapon of the weak but as a bludgeon. In fact the agenda on the Commission was substantially influenced by the UN General Assembly and there was a plethora - I would call an unreasonable number of condemnatory resolutions against the Third World and it was this politicization that drove countries to charter a so called reform that would replace the Commission with a Council.

Did the Human Rights Commission fail?

In fact if you ask me the question - did the Human Rights Commission fail, my answer would be - ask those who mattered and suffered - the countries that were the subjects of resolutions constantly. Selectivity and non objectivity - the two terms that we ever so often use today to accuse the Human Rights Council were the pervasive norms in the Commission and this was best captured by an English Professor of International Law from Colin Warbick when he said - I quote “The Commission lost its integrity and direction over time: with much of its membership decisions, powers and focus coming to be fuelled by disreputable goals rather than motivated by the aim of promoting, protecting and advancing human rights.”

Are these comments pertinent today to the work of the Human Rights Council that replaced the Commission as a reformed body? I certainly make the opinion that the comments that the Commission was biased and partisan and disreputable goals were rife in targeting countries are still relevant today and applicable to the Council in light of what we went through on March 22.

Human Rights Council (2006)

In 2005 the then Secretary General of the UN Kofi Annan called for the abolition of the Commission, and the establishment of an effective Human Rights Council. Let me recall his words:

“We have now 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.”

Following a long process of negotiation the General assembly adopted Resolution 60/251 on March 15, 2006 setting up the Human Rights Council. You would be interested to note that the United States, Marshall Islands and Palau voted against the resolution to establish the Council. Three countries, Belarus, Iran and Venezuela abstained and 170 countries including Sri Lanka voted for the resolution.

The General Assembly established the Council as a subsidiary organ. Thus the Commission was abolished and the first Session of the Human Rights Council began in Geneva in June 2006.

It is made up of 47 members, vis-a-vis the 53 members of the former Commission. The membership is mandated on equitable geographical distribution - members will be elected directly and individually by secret ballot by the majority of the members of the General Assembly; The General Assembly elected the first group of 47 members in May 2006 and Sri Lanka had the privilege of being a member in that first batch.

The membership shall be based on equitable geographical distribution, and seats shall be distributed as follows among regional groups:

Group of African States, thirteen;

Group of Asian States, thirteen;

Group of Eastern European States, six;

Group of Latin American and Caribbean States, eight; and

Group of Western European and other States, seven;

The members of the Council shall serve for a period of three years and shall not be eligible for immediate re-election after two consecutive terms.

There is a rider that the General Assembly lays down in para 8 of its resolution for qualification to become a member-While electing the members to the Council, the General Assembly must take into account “the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments made.”

One year later after the General Assembly resolution of 2006, in 2007, the Human Rights Council met in Geneva and adopted its constitution which is called - the Institution Building Package 5/1 that delineated the future work of the Council.

So we have two constitutional documents that must guide the work of the Council and the Council cannot step outside of them - namely GA resolution 60/251 of 2006 and the Council Resolution - Institution Building Package of 2007. To an international lawyer and even otherwise any thing done outside the four corners of these two documents would be ultra vires-beyond the powers of the Council.