Public Diplomacy Public Diplomacy

Dilemma confronting UN Human Rights Mechanisms

July 27, 2014

By Ambassador Bhaswati Mukherjee

THE DILEMMA ON GAZA

1. India’s positive vote on 23rd July in the UN Human Rights Council in Geneva, supporting the resolution to launch a probe into Israel’s offensive in Gaza, along with its separate, even handed statements, expressing concern about the "escalating balance perpetrated by heavy air strikes in Gaza and the disproportionate use of force on the ground resulting in tragic loss of civilian lives and heavy damage to properties” while blaming "non-State actors in the region for causing violence which has had the effect of creating avoidable obstacles to the peace process”, was consistent with India’s position at the recent BRICS Summit in Brazil where our Prime Minister had cited our concerns and called for a negotiated settlement on the issue. India’s Permanent Representative in New York had stated that India "remained hopeful that a sustainable ceasefire would be reached between the two sides linked to the resumption of the peace process, for a comprehensive resolution of the Palestinian issue”.

images/Untitled_2.jpg2. Given the complex situation on the ground and use of violence by both sides, Member States of the Council including India, are increasingly required to carefully balance and assess the situation before taking a final decision on such issues. It encapsulates the dilemma confronting human right mechanisms across the UN system where violation of human rights on all sides makes it increasingly difficult to make balanced decision. India joined the other BRICS countries (Brazil, Russia, China and South Africa) to vote for a Palestinian drafted resolution on "Ensuring Respect For International Law In The Occupied Palestinian Territories, Including East Jerusalem”. 29 countries voted in favour in the 47 member-Council. 17 countries abstained including Member States from the European Union. The USA was the only country to vote against the Resolution. Israel is not a member of the Council. It now remains to be seen how the Council would implement this Resolution on the ground.

THE ROLE OF THE UNITED NATIONS IN HUMAN RIGHTS STANDARDS SETTING

3. Every UN Human Rights mechanism is based on the 1948 Universal Declaration of Human Rights which enshrined the principle that human beings are born equal in dignity and rights, principles underlying every culture and civilization, religion and philosophy today. India was an original signatory to the Declaration. At a time when two-thirds of the present membership of the UN was under colonial rule, the Declaration served as a timely reminder that all peoples and States had the right to enjoy human rights and fundamental freedoms.

images/Untitled_3.jpg(In pic : United Nations World Conference on Human Rights in Vienna in 1993). 4. Historically, developing countries led by India, had insisted that all rights including economic, social and cultural as well as civil and political have the same status and should be respected equally. This perspective in the 70’s in the context of the political and ideological divisions of the Cold War was strongly opposed by the West. Fortunately, with the end of the Cold War, the principle of respect, promotion and protection of all human rights on the same footing and with same emphasis gained universal recognition. As Secretary to the Preparatory Committees leading up to the World Conference on Human Rights in Vienna, and as Secretary to the Drafting Committee of the World Conference, under the able leadership of Ambassador Saboia of Brazil, who chaired the Drafting Committee, I was privileged to witness the intricate negotiations that led to the adoption in 1993 of the Vienna Declaration and Programme of Action which `reaffirmed the principle of indivisibility, interdependence and interrelatedness of all human rights’. The ideological pillars of the Human Rights System within the United Nations had made a dramatic shift and would never be coloured by Cold War politics again. They would, however, be influenced by new challenges, including terrorism and non state actors, to cite a few.

HUMAN RIGHTS MECHANISMS ACROSS THE UN SYSTEM

5. It is important to underline that although the Universal Declaration of Human Rights of 1948, like the Vienna Declaration of 1993 are not legally binding, their main principles have acquired the status of customary international law, which States are legally bound to respect.

HUMAN RIGHTS COUNCIL


6. As explained above, this important intergovernmental body has become the apex body within the UN system for strengthening the promotion and protection of Human Rights globally and for addressing situations of human rights violations and making recommendations on them. It was created by the United Nations General Assembly on 15th March 2006 by resolution 60-251 and its first session took place on 19-30 June 2006. It is composed of 47 member states and replaced the former United Nations Commission on Human Rights which had outlived its utility after being very active during the Cold War. The Council has a different status and is permanently seized of all human rights issues and situations that require its attention throughout the year. Such issues can be brought in to attention by Member States at any time.

PROCEDURES AND MECHANISMS OF THE HUMAN RIGHTS COUNCIL


7. These are several and range from the Universal Periodic Review which assesses the human rights situation in all 194 UN member states, once every four years, to the Advisory Committee which serves as the Councils "think-tank”, to the Complaint Procedure which allows individuals and organisations to bring human rights violations to the attention of the Council.

8. Another Procedure of the Council, is the "Special Procedures” which monitors, advices and publically reports on human rights situation in specific countries or territories, defined as "country mandates” or on major patterns of human rights violations worldwide known as "thematic mandates”. These mechanisms consist of Special Rapporteurs, Special Representatives, Independent Experts and Working Groups. They visit States upon invitation and report back to the Council.

9. There are, at present, two Commissions of Inquiry established by the Council on Syria and on DPRK apart from the one just created on Gaza. There are also 37 thematic Rapporteurs and 14 country specific Rapporteurs. They report on all human rights whether economic, social or cultural or civil and political.

10. Country specific mandate Rapporteurs have a complex task in analysizing human rights situations at the national level. They request the State concerned to extend an invitation, upon which the visit takes place. Among the new country mandates established since 2006 are the Experts/Rapporteurs on Sudan (2009), Islamic Republic of Iran (2011), Cote d’lvoire (2011), Syrian-Arabic Republic (2011), Belarus (2012), Eritria (2012), Mali (2013) and Central African Republic (2013).

INDIA’S APPROACH TO THE COUNCIL


11. India is a founding member of the Council and has served two terms from 2006-2007 and 2007-2010 respectively. India was elected by an unprecedented 181 votes to the Council for the term 2011-2014 and will seek re-election to the Council for the term 2015-2017. India is highly respected in the Council. India believes that the promotion and protection of human rights are fundamental freedoms can be best pursued through dialogue and cooperation. We have consistently and successfully pleaded for preserving the inter-governmental nature of the Council’s mechanism and encouraged strengthening of national efforts to realize human rights. We have upheld respect for national sovereignty and territorial integrity, non-interference in the internal affairs of the States, impartiality, non selectivity and transparency.

12. As noted earlier, the issues are complex and it is important to take a principled stand on gross human rights violations in any particular region of the world. India has abstained on one sided or unbalanced resolutions on country specific situations since we believe that "finger pointing” cannot be an elegant or effective solution to such issues.

CASE STUDY OF A SPECIALIZED AGENCY : ROLE OF UNESCO IN HUMAN RIGHTS IMPLEMENTATION

images/Untitled_4.jpg 13. It is not well known that UN Specialized Agencies especially UNESCO, were actively involved in the elaboration of the Universal Declaration and its two International Covenants. UNESCO has a Communications Procedure established in 1978 at the height of the Cold War. It provides for the examination of cases and questions submitted to UNESCO by individual petitions on alleged violations of the human rights within its spheres of competence. These petitions are examined by the Committees on Conventions and Recommendations, a subsidiary organ of UNESCO’s Executive Board, of which India is a member.

14. As a member of this Committee, as Ambassador PR to UNESCO from 2004-2010 I had noted that the conditions of the admissibility of petitions had been carefully elaborated to focus on violations of human rights only within UNESCO’s area of competence i.e. education, science, culture and information. As opposed to the Human Rights Council, where in cases of disagreement, a vote can be resorted to, the Committee works by consensus and is guided by the principle that the alleged victim should benefit from the procedure. For this reason, the Committee has achieved remarkable success, due to its unique method of functioning.

CONCLUDING REFLECTIONS


15. These Procedures now face new challenges. Despite efforts by Member States including India to ensure that these mechanisms are able to address in a fair and impartial manner complex issues relating to human rights violations globally, the increasing politicisation of these bodies often results in deadlock or watered down resolutions which do not address the main issue. One challenge has been to address the direct linkage between terrorism and human rights violations. There is also the imperative of addressing gross human rights violations by non state actors, acting beyond national boundaries such as in 9/11 and in Mumbai. These challenges remain daunting. However, as long as the intergovernmental nature of these bodies is respected, the quest for increasing universal respect for justice, rule of law and for human rights and fundamental freedoms will be attainable. It is linked to the ideological yearning for a world where human rights and fundamental freedoms, based on a bedrock of democracy, pluralism and rule of law are fully understood, respected and upheld.

[The author, a former diplomat was Permanent Representative of India to UNESCO (2004-2010). This article has been written exclusively for ‘In Focus” section of Ministry of External Affairs website,www.mea.gov.in]
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