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II.3 Main mechanisms of the Human Rights Council

II.3.1 Negotiations of the institution building package: Human Rights Council resolutions 5/1 and 5/2

Although the GA outlined many of the novel and key elements of this new intergovernmental body in Resolution 60/251, it decided that the Council itself should be in charge of defining its own structural elements during its first year of existence. The Council began its work on 19 June 2006 with the specific goal of concluding negotiations on its institution building process within the deadline of 365 days.[1] As a consequence, the new Council had one year after holding its first session to review and, where necessary, rationalize the vast and complex array of mandates, mechanisms and functions of the Commission. The Council was also instructed to keep the system of special procedures, the advisory role of experts and the complaint procedure.[2]

The President of the HRC decided to create three working groups to deal with this process: one for the establishment of the universal periodic review; a second for the review and rationalization of all mandates, functions and responsibilities of the Commission—including the 1503 Procedure, the future of the former Sub-Commission and the special procedures; and a third one on the agenda and methods of work of the Council. Eventually, it was necessary to appoint facilitators for what would constitute the six pillars of the so-called institution-building process of the Council.[3]

These facilitators were Ambassadors of Member States of the Human Rights Council and focused on the following issues: the universal periodic review; the review and rationalization of special procedures mandates; the decision on the need to have an advisory body; the future of the procedure established by Resolution 1503; the agenda and program of work of the Council; and the methods of work. By April 2007, there were many unresolved issues, and negotiations were personally presided over by the President of the Human Rights Council who, on the very last available day, presented a compromise proposal which was accepted minutes before midnight.

In light of the negotiation dynamics and the strength in numbers of both African and Asian members, the results were positive, in the sense that many valuable aspects of the Commission were preserved.[4] To achieve this, the President had to agree to abolish two country mandates from the system of special procedures, on the human rights situations in Cuba and in Belarus. This concession consolidated a trend towards a decrease in country mandates—from 26 in 1998 to 13 in 2006.[5] This tendency changed over time, as we will see below.

The whole intense year of negotiations ended in the adoption of Council Resolutions 5/1 and 5/2 on 17 June 2007. That same day, the first President of the Human Rights Council, Ambassador de Alba from Mexico, finished his term as President.

Nevertheless, the following day Canada highlighted to the newly elected President of the Council that the previous night there had been no consensus on the adoption of the so-called institution-building package. The new President, Ambassador Costea, from Rumania, put the interpretation of Canada to a vote, on the understanding that the package had indeed been approved the night before. By 46 votes in favor and 1 against—Canada—the President’s interpretation prevailed.[6]

Resolution 5/1 was framed taking into consideration the pillars defined by the then President of the Human Rights Council and negotiated under the following titles: universal periodic review; the system of special procedures; the advisory committee; the complaint procedure; the agenda and program of work; and the methods of work. To complete the institution-building package, Resolution 5/2 imposed some specific rules on special procedures mandate-holders in regard to their conduct when performing their activities. Resolutions 5/1 and 5/2 were endorsed by its hierarchical body, the General Assembly.[7]

II.3.2 The Universal Periodic Review

II.3.2.1 Towards the establishment of a new mechanism. Raison d’être and precedents

Selectivity and double standards in dealing with human rights situations within countries were undoubtedly the main criticisms of the Commission. It could be added that there was also a general position among several countries from the South—in particular Asian and African States—regarding the need to have a more cooperative approach when reviewing a country situation.

In this sense, a few decades ago, a group of countries known as the “Like-Minded Group” questioned the Commission’s tendency to “name and shame” individual States for their human rights records. In the late 90’s, this group of States made proposals to guarantee that the Commission could deal with all human rights situations without double standards and adopt a more cooperative approach.[8]

Eventually, it became a proposal of the then Secretary-General Annan that could be acceptable for all States: a universal human rights review mechanism managed by peers. This initiative had a relevant precedent in the early days of the Commission on Human Rights. In 1950, France had proposed a reporting system linked to the Universal Declaration. This was not an isolated initiative at the time because there were already in place other similar mechanisms, such as the one which existed within the framework of the ILO. The French proposal was not accepted that year by the United States and Latin American countries.

Nevertheless, in 1953, the United States changed its position. The Eisenhower Administration was against the development of human rights covenants and saw the establishment of a reporting system as a positive chance to focus on the implementation of existing treaties and, at the same time, to share its human rights policy with Member States of the Commission.[9]

Finally, a reporting mechanism was adopted in 1956. According to this mechanism, a special committee on periodic reports reviewed the information provided by States and later submitted a report to the Commission. In the opinion of experts, this procedure suffered from some of the problems that many intergovernmental UN mechanisms still face: it focused on achievements—and not on challenges in human rights policies—as well as on summaries—instead of analysis. Gradually, the mechanism ceased to be of general interest and lost support, concluding its work in 1981, after 25 years of existence.[10]

During negotiations at the GA level, the proposal by Annan of a “universal peer review” was replaced by a “universal periodic review” in Resolution 60/251. Some States and NGOs considered that this could be a change that would allow significant participation by stakeholders different from States, but in the end that did not happen.[11]

During negotiations relating to the UPR, a number of mechanisms were studied as possible models, including the WTO peer review mechanism and the ILO monitoring procedures. The ILO, for example, has a committee of experts which meets on an annual basis to review reports made by States on their implementation of ratified treaties. The committee is entitled to make direct requests and, if necessary, observations related to violations of the ILO treaties. The Conference Committee composed of State representatives selects some cases for further review each year, providing the mechanism with political support and also a higher level of scrutiny. There are also specific mechanisms to deal with violations of the right to freedom of association and freedom from discrimination in employment. The ILO also has a procedure of direct contacts designed to provide advice on improving one or more aspects related to the States’ obligation in ILO conventions, which helps States to solve problems before the issue is raised in monitoring bodies.[12]

II.3.2.2 Negotiations and agreement on the new mechanism

The President of the Human Rights Council requested Morocco to facilitate negotiations of this important pillar of the so-called institution building package, and the country successfully achieved a general agreement before the deadline. Negotiations included the legal basis of the mechanism; principles and objectives; cycles and periodicity of review; participants; modalities; outcome and follow-up of the review.

The result of the negotiations was delivered by the facilitator to the then President of the HRC and finally included in the annex to Resolution 5/1. It was agreed that the legal basis for the review would include the UN Charter, the Universal Declaration, the human rights treaties to which the State is a party, the voluntary commitments of the State concernedרincluding those presented as candidates of the HRC—and applicable international humanitarian law.

Bearing in mind the issues that contributed to the demise of the former Commission, States adopted a number of principles that would guide the universal period review. In this respect, Member States of the Council decided that the review should be conducted in an objective, transparent, non-selective, constructive, non‑confrontational and non‑politicized manner.[13] The Council also decided that the review should take into consideration the universality, interdependence and interrelatedness of human rights, have universal coverage and equal treatment of States, and be a State-oriented mechanism with a cooperative approach and with the full involvement of the State under review. The review would also complement other mechanisms, consider the level of development and specificities of the country under review, and not be overlong or burdensome for the State concerned.[14]

The principles also expressly included a reference to the fact that the mechanism would not diminish the possibility of dealing with emergency situations of the Council. This is important because, at the time of negotiations, there was no clarity regarding the future role of the Council in dealing with specific human rights crises.

Finally, the principles included a general reference to the participation of other stakeholders, as set out in ECOSOC Resolution 1996/31 and other decisions that the Council may take in this regard.[15] Indeed, this was one of the most divisive issues during negotiations. Several Asian and African States as well as members of the OIC emphasized the importance of ensuring the intergovernmental nature of a peer mechanism and, as consequence, discouraged the participation of NGOs and other stakeholders during the review.

On the opposite side, the EU and some Latin American countries—including Argentina and Chile—favored the participation of civil society during the examination and its outcome. The compromise solution was to allow other stakeholders to make comments in the adoption of the report, but not during the review of the State concerned.[16]

Thus, the solution was more inclined towards a lesser participation by other stakeholders than in the rest of the existing mechanisms, where there is a chance for other stakeholders to make comments and even, in some cases, recommendations. However, the distinctive intergovernmental nature of the review was at the same time its major innovative feature, which distinguished it from the special procedures mechanisms or the treaty bodies system.

The objectives agreed for the UPR were general: improvement of the situation on the ground, assessment of human rights obligations, exchange of best practices, cooperation, and technical assistance with the consent of the State concerned.[17]

At the time, it was decided that the periodicity of the mechanism would be four years and, during that period, all UN Member States would be under examination, mixing Member and Observer States of the Council, taking into consideration a geographical distribution but guaranteeing that all Member States would be under review during their membership.[18] These decisions sought to emphasize that the Council would take its members’ commitment to human rights seriously .

During the negotiations, there were conflicting positions regarding the information to be considered during each review. Several African and Asian States emphasized the need to consider information provided by the State exclusively. In contrast, the EU and some Latin American countries—e.g. Argentina, Chile—suggested different proposals to include information, recommendations and analysis emanating from other stakeholders—e.g. OHCHR, treaty bodies, special procedures, NGOs.[19]

In the end, it was agreed that there would be a report from the State and two summaries prepared by the High Commissioner: one taking stock of information contained in reports of special procedures, treaty bodies and in other UN documents; and a second one systematizing information received from other stakeholders.[20]

During the negotiations, there were exchanges on the role of OHCHR in the review process. Some States wanted to give the High Commissioner the capacity to analyze the information. Nonetheless, the position that prevailed was the opposite: OHCHR would make a summary of credible and reliable information from available UN sources and other stakeholders.[21]

Regarding the modalities of the UPR, the Council decided that a working group chaired by the President of the Council would consider 48 countries in three sessions per year. It also decided that Observer States could participate in the review and other stakeholders could be present. The majority of States rejected the possibility that NGOs or national institutions could participate in the dialogue.[22]

The Council further agreed that the review would be facilitated by a troika composed of Member States elected by drawing of lots. The State under review might ask that one member of the troika be from its regional group and could ask for the substitution of one member of the troika only once. At the same time, a member of the troika elected by lot could be excused from participating if requested. The review would take three hours, during which there would be a presentation by the State concerned followed by an interactive dialogue. An additional half hour would be devoted to the adoption of the outcome in the plenary of the Council.[23]

Resolution 5/1 also referred to the format of the outcome, which in practice ended up being a report: it would be a summary of the presentation by the State concerned, followed by a summary of the interactive dialogue and of conclusions and recommendations.

Accepted recommendations would be included and other recommendations and comments would be noted. This was a significant achievement because there was a proposal to include only recommendations accepted by the State.[24]

Resolution 5/1 decided that the reviews in subsequent cycles would focus on implementation, called on the international community to provide technical assistance for the implementation of recommendations with the concerned State’s consent and decided to include the issue as a permanent item of the HRC’s agenda. The Council further agreed that it could deal with persistent cases of non-cooperation.[25]

In 2007, the HRC adopted a resolution requesting the Secretary-General to create two voluntary funds: one to help the participation of least developed countries in the UPR and a second fund to provide financial and technical assistance to States for the implementation of the recommendations.[26] To date, many States have benefited from the fund to participate in UPR sessions, particularly least developed countries that have no representation in Geneva.

During negotiations of the institution-building of the Council, there was so much emphasis put on this new mechanism to solve the main failures of the Commission that its work is often considered a significant parameter for the failure or success of the new body.[27]

II.3.2.3 Assessment of the agreement on the UPR and its first years of work

An initial assessment of the creation of the UPR is positive and allows a certain degree of optimism. This new mechanism was seen as an improvement, even by scholars who from the beginning had a very negative opinion about the Council’s performance. The major achievement is that the human rights record of every UN Member State is subject to international scrutiny. [28]

Indeed, there are significant grounds for welcoming the new mechanism and its impact. For six decades, albeit in a selective manner, the Commission considered the situation of several developing countries facing dictatorships, armed conflicts or even cruel regimes founded on institutionalized race-based discrimination. However, the Commission was not used to dealing with the human rights situation of powerful Western countries. The fact that those States now have to be under public examination in an intergovernmental forum represents a significant change for the universal system. During the first cycle of reviews, when scrutinized under the UPR, some of these developed countries had to explain relevant human rights policies relating to sensitive and controversial issues such as the exceptional conditions of pre-trial detention for suspected terrorists or serious problems of violence against women.[29]

In any case, during the first cycle, which reviewed all UN Member States, there was also a serious procedural problem: the list of speakers. It became usual practice for some States to arrive at the Council as early as possible on the day when the list was opened—even before 5 am—in order to guarantee that only allies and friendly States could take the floor during the review. This practice had very negative consequences. Many—if not almost all—the interventions by States in the interactive dialogue of the review praised the human rights situation of the State concerned instead of making recommendations to improve the situation at the national level. The results of the dialogue impacted the outcome report on the State under review. Fortunately, this situation was resolved during the 2011 HRC review, as will be described later.

Two full cycles—the first between 2008 and 2011 and the second between 2012 and 2016—consolidated, to a certain extent, the original format of this still new mechanism. Currently, the UPR is in its third cycle (2017-2021) and is trying to focus more on implementing the recommendations made by the mechanism in the previous cycles.

The level of cooperation by UN Member States with the UPR has been very high. Almost all Member States have submitted their reports in a timely manner and have participated with high-level delegations in their respective examinations. One notable exception during the second cycle was Israel, which decided to suspend its relations with the Council in May 2012 and did not present its report to the UPR later that year. At the beginning of 2013, the HRC took the exceptional measure of adopting a resolution requesting the country to resume cooperation with the system, asking the President of the HRC to take appropriate measures in this regard and rescheduling the examination during that same year.[30] The review finally took place in October 2013 and Israel participated again in the third cycle in January 2018.[31]

Since the creation of the UPR, a number of States have submitted midterm implementation reports (approximately two years after the recommendations were made) on a voluntary basis. Those reports give an account of the level of implementation of the recommendations by the time the midterm report is presented. By February 2019, some States had submitted voluntary UPR midterm reports on the implementation of the recommendations they received during the first and/or second cycle, and one State had submitted a report regarding the implementation of selected recommendations concerning the third cycle.[32] These reports constitute a key indicator of the interest of States in the UPR and the recommendations received in that context. Nevertheless, less than a hundred States have submitted those voluntary reports and the number is decreasing. It remains to be seen if it would be possible to measure the success of the mechanism in terms of implementation of the recommendations stemming therefrom.

In sum, the balance is overall positive. Even if the nature of this intergovernmental body makes it almost impossible to escape from politicization, this democratic and egalitarian mechanism has represented significant progress for the universal system of protection of human rights.

II.3.3 Special Procedures

II.3.3.1 Resolution 5/1. Selection and appointment of mandate-holders and review, rationalization and improvement of procedures

The GA let the Council decide how to move forward with the valuable system of special procedures. After polarized negotiations, the agreement on special procedures as set out in Resolution 5/1 focused on two main themes: the selection and appointment of mandate-holders; and the review, rationalization and improvement of mandates.

Regarding the first theme, the Council decided to establish clear and defined criteria for the nomination, selection and appointment of mandate-holders (special rapporteurs, independent experts and working groups). At present, Governments, regional groups of the UN, international organizations including OHCHR, NGOs, other human rights bodies and individuals can all submit nominations. OHCHR is now mandated to prepare an updated list of all nominated candidates and publicize the vacancies.[33]

A new consultative group—composed of five representatives of Member States of the Council, one per regional group—consider the candidacies and propose a list to the President of the Council according to the established criteria. During negotiations, delegations considered the possibility of convening a panel of experts to do this work, but in the end this option was ruled out.[34]

The Consultative Group considers candidates from the public list prepared by OHCHR, but in exceptional cases it may consider candidates not on the list. In all cases, decisions are public and substantiated. On the basis of these proposals, the President conducts consultations and makes proposals, which are finally presented to and adopted by the plenary.[35]

Moreover, the Council decided that technical and objective requirements for eligible candidates should be adopted by a resolution at a later stage.[36] Thus, the HRC, in Decision HRC 6/102, mandated OHCHR to prepare a questionnaire for candidates, update the list of nominees, and provide for assistance to the Consultative Group, which should be formed in advance of the Council sessions, where appointment of mandate-holders should take place. The Council’s decision also includes specific requirements for candidates (e.g. qualifications, established competence, and availability).

Mandate-holders now have a limit on their re-election—only two consecutive terms of three years each—they cannot accumulate functions, and they are expected not to have any conflict of interest with any other professional activity, in particular a position in his or her Government.[37]

This new procedure to select mandate-holders established in Resolution 5/1 represents a significant and positive improvement in relation to the procedure of the former Commission. Indeed, it clearly limited the power that Presidents of the former Commission used to have to decide on nominations of mandate-holders and also enhanced transparency.

The most positive change is that the current system allows any competent expert to submit his or her own nomination, without having to count on the support of any State, international organization or NGO. Moreover, the selection procedure now has more filters—e.g. the consultative group and OHCHR—and there are objective requirements for selecting experts—a series of technical requirements. Finally, mandate-holders can be reelected only once.

Regarding the second theme agreed in Resolution 5/1, there was only a broad decision on the renewal, rationalization and improvement of mandates. In this regard, it was agreed that the decision on the future of each mandate would be taken on a case-by-case basis, within the context of negotiations of specific Council resolutions.[38]

Resolution 5/1 only specifies that the discontinuation of mandates should be based on the premises of better promotion and protection of human rights. Also, as general rules for improvement, the resolution indicates that mandates should be consistent with the universal human rights system, should pay equal attention to all human rights, avoid duplication and cover areas where there is a gap through a new procedure or by expanding an existing one, or requesting joint action from various mandate-holders.[39]

Negotiations on the future of the mandates were very difficult and divisive. There was general disagreement on the criteria for establishing these mandates; the way to make mandate-holders accountable for their actions; the cooperation by and with States; the working methods; the relationship with the Council and other human rights mechanisms and stakeholders; the funding; and the support from OHCHR. It was not possible to arrive at a consensus decision on any of these topics.

There were also exhausting negotiations about whether to maintain country mandates or not. Some States, mainly from Asia and Africa, requested the elimination of country mandates or the definition of stricter criteria for their establishment. These States argued that specific human rights situations could be considered in special sessions or within the UPR.[40] In contrast, other countries, including Argentina, supported their preservation.

During the last days of negotiations prior to the adoption of Resolution 5/1, the HRC President proposed preserving both thematic and country mandates. In this context, China insisted on the need to set a 2/3 majority of votes to establish new country mandates and even threatened to oppose consensus on the whole institution-building package if this proposal was not taken on board. This proposal was opposed by the EU. Finally, China accepted a simple majority for the establishment of country mandates.[41]

As a transitional phase, the Council decided that all country mandates inherited from the Commission would be maintained until the end of their six-year term and those that exceeded that term until the Council considered the review of the mandate.[42]

Nevertheless, as a result of the negotiations, there were important concessions in terms of country mandates. First of all, Resolution 5/1 established a different period for thematic mandates—three years—and country mandates—one year.[43] Also, as mentioned before, two of the mandates of the former Commission were excluded by the President of the Council in Appendix I of Resolution 5/1: the country mandates on Cuba and Belarus.[44]

II.3.3.2 Resolution 5/2. The Code of Conduct

The possibility of adopting a code of conduct for special procedures started with the discussions concerning the reform of the Commission and its mechanisms. Since the mid-1970s, there had been proposals to reform the incipient system of special procedures. At the time, the Group of 77 (G-77)[45] suggested a radical reform: replace the system of special procedures with working groups composed of Government representatives based in Geneva. The proposal was not accepted and the system became even stronger in the following years.[46]

However, during the 1990s, there was a new wave of proposals for reform at the intergovernmental level. In this sense, the Asian Group refloated the idea of changing the special procedures system and, in 1998, successfully managed to adopt a resolution calling for a report on the review of all the Commission’s mechanisms. As a result of this process, the idea of a code of conduct for special procedures emerged and was promoted by the Asian Group and the OIC.[47]

Finally, in November 2006, during the second session of the Council, Algeria, on behalf of the African Group, pushed for the adoption of a resolution which called for the elaboration of a code of conduct for special procedures mandate-holders.[48] This resolution—which faced strong opposition from the EU—was put to a vote and, consequently, was adopted with the support of all African and Asian States, Brazil and Ecuador, and a number of abstentions, including those of Uruguay and Argentina.[49]

In this context, in June 2007, the Council adopted Resolutions 5/1 and 5/2 on the institution-building package by consensus. Resolution 5/1 outlines the whole structure of the Council, including the selection and appointment of special procedures, and its review. Resolution 5/2 adopts a code of conduct for special procedures mandate-holders, accepted by all State members, including from the EU.

In the preamble to Resolution 5/2, one can observe many of the reasons put forward by the AG during negotiations for pushing for the adoption of the code: the need to enhance cooperation between Governments and mandate-holders; the contribution of the code to the enhancement of the moral authority, credibility, objectivity and expertise of mandate-holders; and the recognition of the independence of mandate-holders, although it clearly limited their prerogatives on the scope of the mandate given by the Council as well as the UN Charter.[50] In its short operative part, resolution 5/2, which adopts the Code of Conduct, urges States to cooperate with special procedures, provide all information and respond to communications in a timely manner.[51]

The Appendix to Resolution 5/2 includes the text of the Code of Conduct. It affirms that its objective is to enhance the ethical conduct and professionalism of mandate-holders in the performance of their functions and indicates that the draft manual for special procedures —at that time being drawn up by mandate-holders themselves during their annual meetings— should be in conformity with the Code.[52]

It should be highlighted that, during negotiations, a number of States and NGOs indicated that there was no need to elaborate such a code because the special procedures would have their own manual once adopted in the framework of their annual meetings. However, the majority of States considered that this self-regulating manual was not the best way to ensure their ethical conduct and professionalism. The Code of Conduct requires mandate-holders not to be influenced by any stakeholder; to perform their activities with the promotion of cooperation with States in mind; to act within the scope of their mandates; not to seek or accept instructions from any State or stakeholder; and not to accept honors, decorations, remunerations or gifts while performing their activities.[53]

Mandate-holders have to consider objective and reliable information from credible sources and cross check this information, as well as receive and assess in a comprehensive manner the responses of States in that regard. They can also bring proposals to enhance the mandate to the attention of the Council.[54]

The Code of Conduct also includes specific requirements for the admission of letters of allegations by individuals claiming human rights violations (e.g. they should not be manifestly unfounded or politically motivated) and for urgent appeals made by special procedures to States (e.g. imminent damage of a very grave nature). Rules on urgent appeals were not negotiated in depth and the result was quite positive. There is also a specific provision in relation to country missions, which states that they can only be carried out with the concerned State’s consent.[55]

Regarding their conclusions and recommendations, mandate-holders should first inform the State concerned and consider their responses. If conclusions and recommendations are addressed to the Council, this body should be the first recipient of them. Formal communications between special procedures and States should be managed through diplomatic channels. This changed a former practice on the part of some mandate-holders who used to address local authorities directly.

Finally, the Code of Conduct established that mandate-holders are accountable to the Council for the fulfillment of their mandates.[56] Algeria (on behalf of the AG), Pakistan (on behalf of the OIC) and Cuba (on behalf of the G77) called for the establishment of an ethics committee to monitor compliance with the Code.[57] This initiative was excluded in the final version of the Code of Conduct.

II.3.3.3 Assessment of reforms to the special procedures system

The result of the institution-building package was mixed. On a positive note, there was a clear improvement in the system for nominating, selecting and appointing mandate-holders. Indeed, this process is now much more democratic and transparent than that of the Commission. Moreover, the preservation of country mandates in a resolution adopted by consensus represented an achievement, even though they have to be renewed annually.

Regarding the Code of Conduct, although during negotiations the majority of States promoted a system of special procedures that was more limited and State-controlled, the final outcome of the Code was balanced and guaranteed the independence of mandate-holders as well as their immunities and privileges, particularly during country missions. Many controversial issues were ultimately excluded from the agreement (e.g. a committee to control experts).

At the same time, the debate demonstrated that the code was necessary. There were no specific rules to hold mandate-holders accountable for their work, and this could lead to some undesirable situations. Although the special procedures manual—adopted in 2008 with the aim of self-regulating the behavior and working methods of mandate-holders—is a useful tool, it is clearly not enough to ensure the ethical and professional behavior of experts.

The decision of having a code of conduct goes in line with a growing tendency to attribute responsibility for their actions to international actors, international civil servants, international members of treaty bodies and judges. If special procedures have the power to influence the internal situation of a specific country, then it is reasonable to hold them accountable for their actions.[58]

Scholars—even those who are critical of the result in this important pillar—highlight the fact that the system was preserved and, therefore, has the same potential to develop all the ways and means created during the time of the Commission.[59]

Nevertheless, there was no decision about the structural problems of the special procedures system relating to the overlapping of their mandates, the relationship with treaty bodies, the quality of their reports, and the implementation and the follow-up of their recommendations. The Council decided that all these issues would be discussed on a case-by-case basis while renewing each mandate. In the end, after the renewal of each mandate, almost no substantive changes took place. This is not surprising given the ideological and political differences among States, the dynamics in inter-governmental negotiations at the Council and the complex participation of many stakeholders in negotiations on a resolution regarding the mandates of special procedures mandate-holders.[60]

II.3.4. The Advisory Committee

II.3.4.1. From the Sub-Commission on the Promotion and Protection of Human Rights to the Advisory Committee

When negotiations began on the possible expert advice and its format, there were doubts about the need to have a standing body of experts to assist the Council. Indeed, the European Union proposed having a roster of experts who could be called for specific purposes. In contrast, the vast majority of countries from the South—including Argentina—pushed for a formal mechanism that could be the heir to the Sub-Commission and technically assist the new Council in performing its mandate.

In the end, there was consensus on having a consultative body called the Advisory Committee, composed of 18 members—instead of 26 like the former Sub-Commission—which would serve as the think tank for the Council. The vast majority of States wanted to ensure that the limits placed on the Sub-Commission’s power of autonomy in the last years of its work were maintained.[61]

The election process for the experts of this Committee begins with the nomination by States of candidates from their own region and ends with the election by secret ballot held in a specific meeting of the Council.[62] They have a three-year mandate renewable only once. [63]

The Advisory Committee is mandated to provide expertise at the request of the Council, focusing on studies and research advice, and to work on specific issues according to the Council’s requests. The Committee can make proposals to enhance its efficiency and submit research proposals for the consideration of the Council. It is mandated to elaborate guidelines for the elaboration of studies and should promote an “implementation-oriented” approach. This could implicitly be aimed at avoiding the development of standard-setting by the expert body unless the Council decides otherwise.[64]

The new expert body has two sessions each year for a maximum of ten working days per year. It was decided that it shall act collectively, in smaller groups or individually. It shall have contact with States and other stakeholders following the democratic and open tradition in terms of participation of the Commission.[65]

II.3.4.2 The fate of the previous mechanisms of the Sub-Commission

There is another major difference between the Advisory Committee and the former Sub-Commission. The new Committee is not able to create subsidiary mechanisms unless the Council authorizes it to do so. In this context, Resolution 5/1 states that the fate of all subsidiary mechanisms of the former Sub-Commission will be decided by the Human Rights Council.[66]

Indeed, all mechanisms of the former Sub-Commission were renewed at a later stage with different formats but, in all cases, it was decided that they would all report directly to it. Consequently, at present, they do not have any link to the Advisory Committee. There were four of these mechanisms at the time that the Sub-Commission ended its work: the Working Groups on Contemporary Forms of Slavery; Indigenous Populations; Minorities; and the Social Forum. Each of them followed its own path.

II. The Special Rapporteur on contemporary forms of slavery, including its causes and consequences

The Working Group on Slavery was established as early as 1975 by the Sub-Commission and, in 1998, it was renamed Working Group on Contemporary Forms of Slavery.[67] During its long existence, it produced reports and made recommendations based on the Slavery Convention of 1926, the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery of 1956 and ILO Convention No. 29 on Forced Labor of 1930.

The task of the Working Group was complemented by the GA’s decision to establish a UN Voluntary Trust Fund on Modern Forms of Slavery in 1991.[68] The fund is managed by OHCHR, with the advice of a Board of Trustees composed of experts from all regions of the world. At the end of each year, the Secretary-General approves yearly grants, which are paid the following year.[69]

In 2007, the recently established Council decided to replace the former Working Group with a Special Rapporteur who would report directly to it.[70] The new Special Rapporteur gives careful consideration and recommendations on the issue using the existing legal framework as a basis for his or her work. The work of this mandate is valuable due to the regrettable fact that we continue to see instances of modern slavery.

II. The Expert mechanism on the rights of indigenous peoples

A working group focusing on indigenous populations was created by the Sub-Commission in 1982 and functioned on an annual basis. It reviewed developments related to indigenous populations, analyzed relevant UN information, and submitted its conclusions to the Sub-Commission. The working group was also mandated to give special attention to the evolution of standards on the issue.[71]

Gradually, this working group began to coexist with other mechanisms on indigenous issues. In 1998, the Commission on Human Rights decided to create a working group to define the modalities and functions of a forum for indigenous peoples in the United Nations. This decision was in conformity with the Vienna Declaration and Program of Action of 1993, in the context of the International Decade of the World’s Indigenous Peoples.[72] As a result, in 2000, the ECOSOC created a permanent forum for indigenous issues, as a subsidiary body of the ECOSOC itself, giving more hierarchy to this particular mechanism than those which reported to the Commission or the Sub-Commission.[73] Its 16 members have a three-year mandate renewable only once.[74]

In addition to the working group and the forum, in 2001, the Commission decided to establish a Special Rapporteur on indigenous issues. The Commission followed the recommendation of the Sub-Commission in this regard, while noting that there was no mechanism at the level of the Commission to protect the human rights of indigenous peoples. The Special Rapporteur has a specific purpose, different from the other mechanisms: he or she gathers information and communications from all sources, including Governments, on violations of their human rights and fundamental freedoms and makes recommendations to prevent and remedy those violations.[75]

This complex structure regarding indigenous issues existed at the time the Human Rights Council was established. In December 2007, the Council decided to replace the former Working Group on Indigenous Populations of the former Sub-Commission with an expert mechanism reporting to it. This mechanism should focus mainly on studies and research-based advice and can make proposals to the Council for its consideration within the scope of its work. To enhance cooperation and avoid duplication, there should be an annual meeting among this new mechanism, the Special Rapporteur and the forum.

The procedure for the selection of its five members is the one established for special procedures in Resolution 5/1, taking into consideration a gender perspective and candidates of indigenous origins as much as possible.[76] The current situation of indigenous peoples, who face structural discrimination in many regions of the world, fully justifies the consideration of the issue at the UN on different levels and, even today, much remains to be done to promote and protect their rights effectively.

II. The Forum on Minority Issues

The Sub-Commission’s Working Group on Minorities was created in 1995 and was composed of five members of the Sub-Commission. Its objective was to promote the implementation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, as well as examine possible solutions for the problems among minorities and States and recommend further measures when necessary.[77] For 11 years, it helped by preparing studies on the notion of minorities and specific issues such as education, participation in public life, inclusive development and conflict prevention.[78]

In 2005, the Commission decided to establish an Independent Expert on minorities to promote the Declaration along with best practices on the issue, while avoiding duplication with existing mechanisms. At the time, the Commission commended the role of the Sub-Commission’s Working Group on Minorities as a forum but decided to amend its mandate so as to allow it to hold only three days of work during the annual session of the Sub-Commission.[79]

That was the context at the institutional level on minority issues when the Human Rights Council was established in 2006. The Council decided to replace the former Working Group of the defunct Sub-Commission with a forum for dialogue which promoted the exchange of different perspectives among minorities, and between minorities and States, and which would have to provide thematic contributions to the Independent Expert on minorities. The forum is open to the participation of all stakeholders, in accordance with UN rules, and meets once a year for two working days. The President of the HRC is requested to appoint a chairperson for the forum every year from among experts on minority issues, who must prepare a summary of the discussion.[80]

II. The Social Forum

The fourth and last mechanism of the Sub-Commission was the Social Forum, established in 2002 to study the consequences of globalization on the enjoyment of economic, social and cultural rights.[81] It was mandated to exchange information in order to follow up on situations of poverty and destitution throughout the world; to propose standards and initiatives of a juridical nature, guidelines and other recommendations for consideration of the Commission and other mechanisms; and to follow up on the agreements reached at the major world conferences and the Millennium Summit.[82] It had a two-working day annual session between 2002 and 2006 with the participation of States, NGOs and other interested stakeholders.

After the establishment of the Human Rights Council, the Social Forum continued to exist but now reports to the Council. The chairperson is a Government representative, elected according to the principle of regional rotation, and has a three-day annual session, open to all interested stakeholders, to discuss topics related to the fight against poverty and the consequences of globalization.[83]

II.3.4.3 Assessment of the work of the Advisory Committee

The final result was somewhat different from the proposal that the Sub-Commission itself submitted to the Commission in 2005 regarding its own future. Indeed, the Sub-Commission suggested that its successor body should be a collegial body composed of 25 experts from all regions with a mandate to develop standard-setting—taking into consideration the contribution of the Sub-Commission to the elaboration of principles on the fight against impunity and on the right to reparationsand to fill in the existing protection gaps.[84]

In the end, the Council did create an expert body but of a smaller size, and mainly to produce the studies it requested. The Council did not make any reference to the contribution of the new body to the development of standard-setting, although it did not expressly prohibit it.

In line with an increasing trend, the Advisory Committee has no ability to submit any initiatives on its own. This consolidated the limits that the Sub-Commission progressively faced during its last years of existence: in 2000, it lost its ability to adopt country resolutions, although it could still discuss country situations not dealt with by the Commission; in 2003, it lost the capacity to decide on its own the issues to be studied;[85] and both in 2003 and in 2004, the Commission reminded it of the prohibition on adopting country resolutions.[86]

It is clear that the new body has limited ability to promote standard-setting by itself, but it could perform this function if the Council requires it to do so. In practical terms, the results of the work of the Advisory Committee largely depend on the political will of the Council to give this expert body relevant thematic issues to develop. So far, as we will see later, its task has been useful in terms of contributing to the development of international human rights norms and standards at the request of the Council.

II.3.5. The Complaint Procedure

II.3.5.1 Characteristics of the complaint procedure

The decision on the future of the 1503 Procedure was considered by GA Resolution 60/251, which requested the Council to assume, review and, where necessary, rationalize all mandates, mechanisms, functions and responsibilities of the Commission to maintain a series of mechanisms and procedures, including “a complaint procedure”.[87] GA Member States decided to preserve a procedure of this nature in the Council, but they did not specify whether the new body would continue with the structure established by ECOSOC Resolution 1503 (i.e. two working groups, one within the Sub-Commission and the other within the Commission).

The 1503 Procedure had a series of shortcomings. Firstly, it was slow because both the Commission and the Sub-Commission only met annually.[88] Secondly, the confidential nature prevented local actors—such as opposition parties or local NGOs—as well as international NGOs from participating in the process. Thirdly, it was not able to address specific cases, but only general situations where gross violations were committed. Finally, it did not involve the authors of the communication in any part of the process. The final result of the procedure, if the situation did not improve, was to make the situation public in the Commission.

Negotiations on the future complaint procedure were not particularly divisive, and the decision taken by Member States of the Council in Resolution 5/1 was to establish a procedure “to address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances.”[89]

Resolution 5/1 also expressly indicates that it has taken as a basis the 1503 Procedure adopted in 1970 as revised by Resolution 2000/3. This procedure was improved, where necessary, to ensure an objective and victim-oriented procedure, conducted in a timely manner. No change was, however, made to one of the main characteristics of this procedure. It kept its confidential nature. The reason argued was that this procedure would try to enhance cooperation with the State concerned. [90]

Any individual, group of individuals or NGOs can submit communications to the complaint procedure against a State. It has to address patterns of gross human rights violations, including breaches of international humanitarian law. It is a non-conventional mechanism and, as such, there is no requirement for a State to be obliged by a specific human rights treaty.

Following the 1503 model, there are two working groups which deal with those communications and take decisions by simple majority: the Working Group on Communications and the Working Group on Situations. The Working Group on Communications is composed of five members of the Advisory Committee, appointed by this body and representing the five regional groups of the world, with gender balance. They have a three-year mandate, only renewable once.[91]

The chairperson of the Working Group on Communications, together with the secretariat, undertakes an initial screening of communications received, based on the admissibility criteria established in Resolution 5/1, before transmitting them to the State concerned.[92] The chairperson can disregard those communications manifestly ill-founded and informed to the rest of the members of the Working Group in order to guarantee transparency.[93]

The Working Group on Communications assesses the cases and dismisses those which are considered inadmissible, may require additional information from the State concerned or further study of the issue. In any of those circumstances, it will keep a case under review until its following session. The Working Group on Communications is also able to declare the admissibility of certain cases and make recommendations in this regard to the Working Group on Situations.[94]

The Working Group on Situations is composed of five State representatives from each regional group elected for one single year—renewable only once—and serving in their personal capacity. The group can decide to dismiss the cases, ask the State concerned for additional information and continue the consideration of the case in its next session or make recommendations to the Council. All decisions should be duly justified and, if needed, by the decision of a majority of votes.[95]

Both working groups meet at least twice a year in order to guarantee celerity in the process and a victim-oriented approach. This contrasted with the 1503 Procedure, which only held a yearly meeting. The reports sent to the Council are transmitted two weeks in advance for their consideration and the cases remain confidential. The Council may decide to have a public session if there is an evident lack of cooperation on the part of the State concerned. The Council must deal with the case no later than two years after the communication was received.[96]

One remarkable difference with regard to the former 1503 Procedure is that in this revised mechanism the author of the communication is informed of some key stages of the proceedings. Resolution 5/1 expressly indicates that the author will be informed when the case is registered. Regarding the process, both the author and the State concerned will be informed about the inadmissibility of the communication or when it is being considered by the Working Group on Situations; or when a communication is kept pending by one of the working groups or by the Council. They will also be informed about the outcome. The identity of the author may be kept confidential as per his or her request and, in that case, it will not be revealed to the State concerned.[97]

As with the 1503 Procedure, the Council will dismiss the case, continue its consideration in a future session, appoint an expert to deal with the situation, deal with the case in a public session or provide technical cooperation and assistance, capacity building or advisory services to the State concerned through OHCHR.[98]

III.3.5.2 Assessment of the complaint procedure

It is clear that the HRC decided to preserve the 1503 Procedure as reformed in 2000 with some improvements. There are some positive elements in this continuity.

First and foremost, the complaint procedure—like its predecessor procedure—is still the only universal procedure covering all human rights in all UN Member States. This is because it can be activated irrespective of the fact that a country has ratified one or more international human rights treaties or not. This could be an essential tool, in particular for victims of closed and undemocratic regimes where there are not many available resources at the international level for submitting claims of human rights violations.

Secondly, the chairperson of the Working Group on Communications now has to justify the rejection of communications, thus making it difficult to disregard communications which have a legitimate claim. The same happens with decisions on each case taken by both working groups. Moreover, the author of the communication has the right to be informed during the different stages of the process. All these changes have addressed the criticisms relating to the lack of transparency of the 1503 Procedure.

Thirdly, at present there is a time limit. The procedure cannot take more than two years to be considered by the plenary of the Council. In order to guarantee that both working groups deal with all communications within this period, the frequency of meetings has doubled, from one to two sessions per year.

Finally, public information is now available on the cases, for instance on the discontinuation of cases.[99] Nevertheless, there are still serious limits to the effectiveness of this procedure. Confidentiality in the process limits transparency, impedes the relevant action of NGOs and other stakeholders during the process, and not always guarantees the cooperation of the State concerned. Moreover, the existence of two working groups, while having an expert control at the beginning, makes the procedure long and complex. In any case, the most valuable aspect of this procedure is its potential to address grave situations when there is no other way or mechanism available to do so.

II.3.6 Other mechanisms

The Council has also created new fora since its inception, in addition to the Social Forum. They are composed of experts and are open to all stakeholders, in accordance with UN rules for participation. One is on business and human rights and the other on human rights and the rule of law.[100]

In addition, Resolution 5/1 did not address the Intergovernmental Working Groups which existed by the end of the former Commission and continued to function after the establishment of the Council. These working groups should not be confused with those composed of experts within the system of special procedures. The two main types of IGWGs have had a role in the development of international norms and standards. This is why we will briefly describe them here.

II.3.6.1 Intergovernmental Working Groups in charge of developing international human rights norms and standards

The first category of Intergovernmental Working Groups which exists in the Council—and existed before in the Commission—aims at developing international norms and standards. These mechanisms are sometimes created for the elaboration of international human rights law—i.e. hard law, international treaties of a binding nature—and in other cases to develop international standards—i.e. soft law, not binding, such as the ones contained in declarations, sets of principles and guidelines. This type of IGWG has meetings to carry out its work and finishes its mandate once the instrument is adopted by the working group and sent to the Council for its consideration.

Generally, the Council decides to create an IGWG to discuss the advisability of elaborating an instrument related to a specific human rights issue. The IGWG focuses its first sessions on exchanges about the need—or not—to have an instrument in place to deal with the issue. It also discusses whether this instrument should take the form of a binding international treaty or a declaration, principles or guidelines. Once this is decided, negotiations begin on the basis for a text until agreement is reached to submit it to the Council. The instrument is adopted by the plenary of the Council, and later endorsed by its hierarchically superior body, the GA. From that moment on, the instrument is formally adopted and, in the case of international human rights treaties, open for signature and ratifications.

By the time the Council was established, there were two IGWG of this kind: one with the task of elaborating an International Convention against Enforced Disappearances and the other of elaborating a declaration on the rights of indigenous peoples. Both instruments were adopted by the Council in 2006 and later endorsed by the GA.

After the establishment of the Council, a number of other working groups of this type were created to negotiate international treaties or declarations, such as an IGWG to elaborate a Protocol to the Covenant on Economic, Social and Cultural Rights on a Communications Procedure, and another IGWG to elaborate a Protocol to the Convention on the Rights of the Child on a Communications Procedure. They existed until the task was completed and transmitted to the Council for approval.[101] Both instruments were adopted by the Council, endorsed by the GA, and are currently in force.[102] At present, for instance, there is a specific Intergovernmental Working Group at the Council dealing with the elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights.[103]

Other examples of progress can be found in the development of soft law. Indeed, the Council established working groups on the right to education, on the rights of peasants, and on the right to peace. They all ended up with declarations adopted on these issues.[104]

Finally, there is an IGWG on complementary standards to the Convention for the Elimination of All Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance. It is an initiative of the AG, which pushes for the recognition of new international standards on issues of international concern such as racial profiling and incitement to religious hatred.

The role of these IGWG has been remarkable. As we have seen above, the Commission greatly contributed to the development of international human rights law. The Council has so far successfully continued with this important task. New IGWG will be created in the future to address emerging human rights issues and challenges, and it is expected that they will be able to continue contributing to the development of standard setting at the international level.

II.3.6.2 Intergovernmental Working Groups aimed at following up on existing instruments

In 2006, the Council inherited two IGWG in charge of monitoring existing instruments on human rights issues. The first is the Working group on the Right to Development. It was established in 1998, mainly with the support of States from the South, with the aim of monitoring the implementation of the 1986 Declaration of the Right to Development and providing recommendations and further analysis on related issues, including reports submitted by States on the implementation of the right to development.[105] In 2007, the Human Rights Council decided to renew the mandate of the working group and it still exists.[106] This IGWG is continuing its work at present.[107]

The second one, focusing on the implementation of a specific instrument, is the IGWG in charge of the implementation of the 2001 Durban Declaration and Program of Action on the elimination of racism, racial discrimination, xenophobia and related intolerance (DDPA). The DDPA is a comprehensive and action-oriented framework, offering a practical approach to ensuring the principle of non-discrimination. This working group was created by the Commission in 2002[108] and constitutes a main priority for the AG, notably South Africa.[109] The mandate was renewed in the Human Rights Council in 2006, and it focused on two main issues: implementation of the DDPA and also elaboration of complementary standards to international instruments against racism.[110] Thus, this mechanism introduced a mandate which could lead to the development of standard setting, but in practice it has focused until now on implementation.

This Working Group on the Implementation of the DDPA coexists with a series of mechanisms at the expert level also created as follow-up mechanisms to the DDPA, such as the Group of Eminent Experts and the Working Group on African Descent.

Regarding the Group of Eminent Experts, the DDPA requested OHCHR to cooperate with five independent eminent experts—one from each regional group—to follow up on the implementation of the provisions of this instrument. This group has also been in charge of monitoring the implementation of the DDPA, in cooperation with OHCHR, and has been assisting the High Commissioner in preparing the annual report on the issue, in coordination with all relevant stakeholders at the UN level.[111]

The Working group of African Descent is a specific special procedure established following the DDPA.[112] This special procedure studies the problems of racial discrimination faced by people of African descent living in the diaspora, proposes measures to ensure access to the justice system by people of African descent, and submits recommendations to eliminate racial profiling, among other issues.[113]

These two mechanisms existed in the Commission and continued in the Council.[114] After the DDPA, Durban-related mechanisms continued to grow. The Council decided to establish another mechanism related to the DDPA: the aforementioned Ad Hoc Committee on Complementary Standards, which is part of those IGWG in charge of developing standard setting.[115]

A final development regarding the DDPA process was the 2006 decision by the Council to review the DDPA in a World Review Conference in 2009. To that end, it created a Bureau and a Working Group to prepare this conference that met in Geneva in 2009. The Review Conference was a political priority for the AG. During negotiations, some contentious issues were discussed at the Council, including the issue of discrimination on the basis of gender and sexual orientation, which was ultimately excluded from the Outcome Document.[116]

  1. United Nations General Assembly Resolution A/RES/60/251, operative paragraph 6.
  2. United Nations General Assembly Resolution A/RES/60/251, operative paragraph 6.
  3. Megna, Abraham, Building the New Human Rights Council. Outcome and analysis
    of the institution-building year
    , Friedrich Ebert Stiftung, Dialogue on Globalization, Occasional Papers, 33, 2007, page 9.
  4. Megna, Abraham, Building the New Human Rights Council, Ibid, page 5.
  5. Spohr, Maximilian, “United Nations Human Rights Council. Between Institution-Building Phase and Review of Status”, Max Planck Yearbook of United Nations Law, Volume 14, 2010, page 186.
  6. Megna, Abraham, Building the New Human Rights Council, Ibid, page 11.
  7. United Nations General Assembly Resolution A/RES/62/219.
  8. Alston, P., “Reconceiving the human rights regime…”, Ibid, page 6.
  9. Alston, P., “Reconceiving the human rights regime…”, Ibid, page 7.
  10. Alston, P., “Reconceiving the human rights regime…”, Ibid, page 7.
  11. Megna, Abraham, Building the New Human Rights Council, Ibid, page 34.
  12. Donnelly, Jack, International human rights, Ibid, pages 63-64.
  13. Human Rights Council Resolution A/HRC/RES/5/1, “Institution-building of the United Nations Human Rights Council”, Annex, paragraph I.3(g).
  14. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraph 3 (a)-(l).
  15. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraph 3(m).
  16. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraph 31.
  17. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraph 4.
  18. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraphs 5-14.
  19. It has been argued that the UPR should focus on the follow-up of recommendations made by treaty bodies. See in this regard, De Frouville, Olivier, “The missing link: What kind of relationship should there be between the treaty bodies and the Human Rights Council?”, International Service for Human Rights, Human Rights Monitor, Special edition, 2016, paragraph 9.
  20. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraphs 15-17.
  21. Megna, Abraham, Building the New Human Rights Council, Ibid, page 38.
  22. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraph 18.
  23. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraphs 19-25.
  24. Megna, Abraham, Building the New Human Rights Council, Ibid, page 37.
  25. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraphs 27-36.
  26. Human Rights Council Resolution A/HRC/RES/6/17.
  27. Megna, Abraham, Building the New Human Rights Council, Ibid, page 35.
  28. Baehr, Peter, “The Human Rights Council: A preliminary evaluation”, Column, Netherlands Quarterly of Human Rights, Vol 28/3, 2010, pages 329-331.
  29. Human Rights Council, report of the Working Group on the Universal Periodic Review, UN Document A/HRC/8/25, 23 May 2008, paragraphs 8 and 9. See also Human Rights Council, report of the Working Group on the Universal Periodic Review, UN Document A/HRC/8/24, 23 May 2008, paragraph 17.
  30. UPR Info, “Israel absent from its own UPR”, 30 January 2013, available at: https://bit.ly/38xr1pz.
  31. Office of the United Nations High Commissioner for Human Rights, “Universal Periodic Review-Israel”, available at: https://bit.ly/3lomxVT.
  32. Human Rights Council, “Universal Periodic Review”, “UPR Mid-term information”, “UPR Mid-Term reports”, available at: https://bit.ly/38CE60K.
  33. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraphs 42-43.
  34. Human Rights Council, report of the Intersessional open-ended intergovernmental working group on the implementation of operative paragraph 6 of General Assembly resolution 60/251 established pursuant to Human Rights Council decision 1/104 on the “Implementation of General Assembly Resolution 60/251 of 15 March 2006 entitled ‘Human Rights Council’”, UN Document A/HRC/3/4, 30 November 2006, page 3.
  35. It should be noted that the criteria established in Resolution 5/1 to select candidates for mandate-holders include: high standards of preparation; expertise; experience in human rights, in particular in the field of the mandate; independence, impartiality, integrity and objectivity. Candidates will also be selected taking into consideration the need to ensure gender balance and equitable geographical distribution, according to paragraphs 39 and 40 of Resolution 5/1.
  36. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraph 41.
  37. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraphs 44-46.
  38. Human Rights Council, report of the Intersessional open-ended intergovernmental working group on the implementation of operative paragraph 6 of General Assembly Resolution 60/251 established pursuant to Human Rights Council decision 1/104 A/HRC/3/4, Ibid, pages 4-5; Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraph 55.
  39. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraph 56-58.
  40. Megna, Abraham, Building the New Human Rights Council, Ibid, pages 27.
  41. Foot, Rosemary et al., “China’s influence on Asian States…”, Ibid, pages 856-858.
  42. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraphs 60 and 62.
  43. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraph 60.
  44. Human Rights Council Resolution A/HRC/RES/5/1, Appendixes I-II.
  45. The G77 is an organization of developing countries established in 1964 to mainly promote the economic interests of the South at the international level. Information about the group of G77 is available at: www.g77.org/doc.
  46. Alston, Philip, “Hobbling the monitors…”, Ibid, pages 582-584.
  47. Alston, Philip, “Hobbling the monitors…”, Ibid, pages 585-587.
  48. Human Rights Council Resolution A/HRC/RES/2/1.
  49. Megna, Abraham, Building the New Human Rights Council, Ibid, page 31.
  50. The preambular part also affirms that the provisions of the Code complement the Regulations Governing the Status, Basic Rights and Duties of Officials other than Secretariat Officials, and Experts on Mission. See Human Rights Council Resolution A/HRC/RES/5/2, preambular paragraphs 4-17.
  51. Human Rights Council Resolution A/HRC/RES/5/2, operative paragraphs 1-2.
  52. Human Rights Council Resolution A/HRC/RES/5/2, Appendix, Code of Conduct, articles 1-2.
  53. Human Rights Council Resolution A/HRC/RES/5/2, Appendix, Code of Conduct, article 3.
  54. Human Rights Council Resolution A/HRC/RES/5/2, Appendix, Code of Conduct, articles 4-7.
  55. Human Rights Council Resolution A/HRC/RES/5/2, Appendix, Code of Conduct, articles 9-11.
  56. Human Rights Council Resolution A/HRC/RES/5/2, Appendix, Code of Conduct, articles 12-15.
  57. Alston, Philip, “Hobbling the monitors…”, Ibid, pages 566-567.
  58. Alston, Philip, “Hobbling the monitors…”, Ibid, pages 618-628.
  59. Spohr, Maximilian, “United Nations Human Rights Council…”, Ibid, pages 185-187.
  60. Alston, Philip, “Hobbling the monitors…”, Ibid, page 582.
  61. Human Rights Council Resolution A/HRC/RES/5/2, paragraph 65.
  62. Nomination of candidates by States is done in consultation with national stakeholders such as national institutions and NGOs. Consideration is given to gender balance and an equitable geographical distribution. See Human Rights Council Resolution A/HRC/RES/5/2, paragraphs 70-73.
  63. The experts should be independent, with recognized competence, experience and high moral standing. They cannot hold positions that may generate a conflict of interest and they cannot accumulate other responsibilities in the UN level in human rights. See in this regard, United Nations Human Rights Council Resolution 5/2, paragraphs 67-74.
  64. Human Rights Council Resolution A/HRC/RES/5/2, paragraphs 75-78.
  65. Human Rights Council Resolution A/HRC/RES/5/2, paragraphs 79-83.
  66. Human Rights Council Resolution A/HRC/RES/5/2, paragraph 81.
  67. United Nations Commission on Human Rights Resolution 1998/42.
  68. See United Nations General Assembly Resolution A/RES/46/122. This fund has supported more than 400 organizations in 95 countries and provided humanitarian, legal and financial assistance to thousands of victims who have suffered from modern slavery.
  69. Office of the United Nations High Commissioner for Human Rights, “The United Nations Voluntary Trust Fund on Contemporary Forms of Slavery. What the fund is”, available at: https://bit.ly/3eSZCPT.
  70. Human Rights Council Resolution A/HRC/RES/6/14, operative paragraph 7.
  71. United Nations Economic and Social Council Resolution 1982/34, operative paragraphs 1-2.
  72. United Nations Commission on Human Rights Resolution 1998/20.
  73. Economic and Social Council Resolution 2000/22, operative paragraph 1.
  74. Economic and Social Council Resolution 2000/22, preambular paragraph 7 and operative paragraph 1.
  75. United Nations Commission on Human Rights Resolution 2001/57, operative paragraph 1.
  76. Human Rights Council Resolution A/HRC/RES/6/36.
  77. Economic and Social Council Resolution 1995/31.
  78. Office of the United Nations High Commissioner for Human Rights, “The former Working Group on minorities”, available at: https://bit.ly/3lGLKep.
  79. United Nations Human Rights Commission Resolution 2005/79, operative paragraph 9.
  80. United Nations Human Rights Commission Resolution 2005/79, operative paragraphs 1-4.
  81. United Nations Sub-Commission on Human Rights Resolution 2001/24.
  82. United Nations Sub-Commission on Human Rights Resolution 2001/24, Ibid, operative paragraph 2.
  83. Human Rights Council Resolution A/HRC/RES/6/13, operative paragraphs 3-5.
  84. United Nations Sub-Commission on Human Rights, Decision on the “Role of an independent expert body within the reform of the United Nations human rights machinery”, UN Document E/CN/4/SUB/2005/114, 17 October 2005.
  85. United Nations Commission on Human Rights Resolution E/CN.4/RES/2003/59, operative paragraph 3.
  86. United Nations Commission on Human Rights Resolutions E/CN.4/RES/2003/59, operative paragraph 8 and E/CN.4/RES/2004/60, operative paragraph 9.
  87. United Nations General Assembly Resolution A/RES/60/251, paragraph 6.
  88. Donnelly, Jack, International human rights, Ibid, page 53.
  89. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraph 85.
  90. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraph 86.
  91. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraphs 89-93.
  92. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraph 86.
  93. It should be noted that the Chairperson has to indicate the reasons of all decisions resulting in the rejection of a specific communication. See Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraph 94.
  94. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraphs 96-97.
  95. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraphs 98-99.
  96. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraphs 101-105.
  97. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraphs 106-108.
  98. Human Rights Council Resolution A/HRC/RES/5/1, Ibid, paragraph 109.
  99. Human Rights Council, “Complaint Procedures, Frequently asked questions”, available at: https://bit.ly/32DAXd9.
  100. Human Rights Council, “Subsidiary expert mechanism”, available at: https://bit.ly/2UmXqH3.
  101. See for instance, Human Rights Council, “HRC bodies”, “Open-ended Working Group on an optional protocol to the Convention on the Rights of the Child to provide a communications procedure”, available at: https://bit.ly/2Ik9Flp.
  102. The updated list is available on the website of the United Nations High Commissioner for Human Rights, under the title “The core international human rights instruments and their monitoring bodies” (https://bit.ly/36vGzr4).
  103. The aforementioned working group was established under Human Rights Council Resolution A/HRC/RES/26/9, operative paragraph 1.
  104. All intergovernmental working groups are listed by the Office of the United Nations High Commissioner for Human Rights on its website, under the title “HRC Bodies”, “Human Rights Council Subsidiary Bodies”, (see https://bit.ly/2UmXqH3).
  105. United Nations Commission on Human Rights Resolution 1998/72, operative paragraph 10. See also Economic and Social Council Resolution 1998/269.
  106. Office of the United Nations High Commissioner for Human Rights, “The Intergovernmental Group on the Right to Development”, available at: https://bit.ly/2UlBGeE.
  107. See in this regard Human Rights Council Resolution A/HRC/RES/4/4.
  108. United Nations Human Rights Commission Resolution 2002/68, operative paragraph 7.
  109. Its latest session to date is available on the website of the Office of the United Nations High Commissioner for Human Rights (https://bit.ly/2IxmoBd).
  110. Human Rights Council Resolution A/HRC/RES/1/5, operative paragraphs 2-3.
  111. Office of the United Nations High Commissioner of Human Rights, “Group of Independent Eminent Experts on the Implementation of the Durban Declaration and Programme of Action”, available at: https://bit.ly/3kpirv9.
  112. See in this regard, United Nations Human Rights Commission Resolutions 2002/68 and 2003/30.
  113. Office of the United Nations High Commissioner of Human Rights, “Working Group of Experts on People of African Descent”, available at: https://bit.ly/3lryWrX.
  114. See in this regard, Human Rights Council Resolutions A/HRC/RES/9/14, A/HRC/RES/18/28, A/HRC/RES/27/25, A/HRC/RES/36/23.
  115. Office of the United Nations High Commissioner for Human Rights, “The Ad Hoc Committee on the elaboration of complementary standards”, available at: https://bit.ly/36oeDFC.
  116. “Outcome Document of the Durban Review Conference”, Geneva, 20-24 April 2009, available at: https://bit.ly/3plodSj.

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