Human Rights Council: A butterfly or a caterpillar with lipstick? Quis Custodiet Ipsos Custodes?

Following is the address delivered by Mohan Pieris, PC Senior Advisor to the Cabinet on Legal Affairs, former Attorney General and Chairman, Seylan Bank to a forum of Rotarians recently

Dear gentlemen, 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 organisations – 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 no place in the overarching scheme of the building blocks of the Council.

Human Rights Commission (1948-2006)

The Human Rights Commission – 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 – Universal Declaration of Human Rights (UDHR).

It was adopted as a General Assembly Resolution on 10 December 1948 – a day we celebrate every year as an International Human Rights Day. As a General Assembly Resolution we call it 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.

Western and 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 politicisation 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.”

The legacy continues…

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 the 22nd of March

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 15 March 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.  

Membership

It is made up of 47 members, vis-à-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 anything done outside the four corners of these two document would be ultra vires – beyond the powers of the Council.

The conduct of business in the Council has to be guided by the parameters set by these two constructional documents. Even the moving and passage of resolutions have to be authorised by the principles that are found in these documents. Were they adhered to or even taken note of?

I must tell you, if you look at the GA resolution of 2006, you will see a pious declaration that was exhorted of the Human Rights Council, the Council must be guided in its work by the principles of “universality, impartiality and non-selectivity, constructive international dialogue and cooperation.”

In other words the Council was expected to operate in a ‘transparent, fair and impartial manner so as to achieve the objective of promoting dialogue.

Quite contrary to these principles partiality and selectivity characterised the ethos and undue haste with which certain countries waged this war of attrition against Sri Lanka in the Council while paradoxically the conduct of mighty nations in many a part of the world passes muster. That conduct, however reprehensible it may be, is beyond the pale of scrutiny of the Council.

This is why I say today that the Human Rights Council has been drifting away from its obligation to keep up to its guiding principles.

No jurisdiction

If you analyse the Constitution of the Human Rights Council – the Institution Building Package, nowhere would you find jurisdiction to go into the recommendations of a domestic mechanism of a sovereign nation – the LLRC was established by virtue of a legislation of the country called the Commission of Inquiry Act.

The findings of the Commission are amenable to review by competent courts of this country but not by an extra territorial body such as the Human Rights Council. The Institution Building Package nowhere sets out powers to dissect and discuss the recommendations of the Lessons Learnt Commission at the Human Rights Council or for that matter even order an implementation of those recommendations.

It is axiomatic that when the Human Rights Council voted on a resolution to force a speedy implementation of the recommendation, the council most respectfully took on a resolution without jurisdiction.

No country or any resolution of the Human Rights Council can set deadlines when it comes to the matter of implementing recommendations of the LLRC. That critical engagement about the contents of the LLRC Report (especially those aspects pertaining to human rights and humanitarian law) should, firstly, take place in a spirit of dialogue; and not by attempting to introduce a resolution that binds a Government to some international timetable, especially one set by a country which has no moral right to extract commitments from other countries on human rights protection.

The so-called international community, as a critical legal scholar stated, is a “completely impossible international player”. It reduces small and weak states, in particular, to a state of helplessness in the world; for, its hypocrisy, its arrogance, its “impossibility” cannot be easily dealt with.

This is the backdrop in which we faced the might of the countries which sought to abuse their might.

The resolution was placed on the agenda regardless of many a salutary positive in the country. When we went to Geneva, we had a plethora of positives.

At no point were we saying that we would resile from the recommendations. The country had just implemented a substantial portion of the interim recommendations of the LLRC. Rehabilitation and reinsertion of former combatants was part of a restorative justice programme that was in place. The resettlement of the internally displaced was a near success.

National Action Plan on Human Rights

Moreover, a national Action Plan on promotion and protection of Human Rights was a reality which was the product of a deliberative process which involved several stakeholders. In fact it was a fulfilment of a voluntary pledge Sri Lanka made at a Universal Periodic Review that was conducted in 2008. This Action Plan takes cognisance of what needs to be done progressively on the human rights front.

This stocktaking involved an examination of Sri Lanka’s UPR, all of the Treaty Body Recommendations, the recommendations of Special Rapporteurs, and Reports of NGO’s submitted during the UPR. This process moved on to conduct national consultations with the involvement of over 200 civil society Organisations as well as relevant Governmental Agencies to identify issues in relation to eight thematic areas.  Eight Drafting Committees that comprised six to 10 experts from both Governmental and Non-Governmental members were appointed to prepare a draft Action Plan in respect of each thematic area. An important feature of the draft Action Plan is the inclusion of measurable indicators, emphasising a serious focus on the monitoring and evaluation component.

In September 2010 under a Presidential directive, a Cabinet sub-committee assisted by the Attorney-General was appointed to finalise a composite Plan incorporating the eight thematic Plans. The composite Plan titled the “National Action Plan for the Protection and Promotion of Human Rights” and incorporating a time frame for implementation, was approved by the cabinet and in all earnest the implementation of the plan has commenced.

If I may itemise the eight thematic areas of the Action Plan they are Civil and Political Rights, Economic Social and Cultural Rights, Prevention of Torture, Rights of Women, Labour Rights, Rights of Migrant Workers, Rights of Children and Rights of Internally Displaced Persons (IDP) Each Thematic Action Plan divides into sub categories and effective implementation of the Plan has inspired a process that provides for the input of all stakeholders including those who will assume responsibility for implementation.

The inclusion of measurable indicators will ensure that there is a ready platform for Monitoring and Evaluation. We believe that the Monitoring & Evaluation (M&E) component will make the difference between a Plan that will work and one that may not.

Universal Periodic Review

I must make a mention of this process that has been built into both the constitutional documents of the HRC. In fact the movers of the resolution paid scant respect to this inbuilt mechanism of review.

The Institution Building Package of the Council tells us that a country formally reports on its country situation at what is called Universal Periodic Review.

GA Resolution of 2006 mandated the HRC to conduct this review. HRC Resolution of 2007 (Institution Building Package) tells us that it is a cooperative mechanism based on an interactive dialogue, with the full involvement of the country concerned. All countries go through this and we went through this in 2008. Our next cycle is later this year when we will lay bare our progress.

Though the Constitution of the Council stipulates this review process and Sri Lanka contended that Universal Periodic Review would be the best occasion for a review of Sri Lanka, this was not taken notice of in view of the polarisation and politicisation that characterise the Human Rights Council today.

I must say that we have reached a situation that anything and everything is cannon fodder for discussion in the name of human rights and constitutional documents are consigned to history. That is why we say that this resolution is nonbinding. It does not stand pari materia with a Security Council resolution which usually amounts to an equivalent of a court decree.

If you look at the text of the resolution, the permissive language in which it is couched would indicate its non binding nature. The first part calls upon the Government of Sri Lanka to implement the LLRC recommendations. The second part requests the Government of Sri Lanka to present a comprehensive action plan detailing the steps the Government has taken and will take to implement the recommendations

The third part encourages the office of the High Commissioner for Human Rights to provide and the Government to accept any advice and technical assistance that office would give us if we need such advice.  Despite all the developments I referred to earlier and the Government’s continuing commitment to charter a road map to implement the LLRC recommendations sua sponte (on its own), certainly we did not need a resolution that was placed on the agenda outside the parameters of the Council’s jurisdiction. This resolution was timed under a guise of cooperation to coerce and force a country which was limping back to normalcy after so many years of bloodshed and it was a stark reminder of the continuing legacy of politicisation of the Commission that haunts today its successor.

The Government has not rested on its laurels. The 258 recommendations of the LLRC have been compartmentalised into four categories. There is a road map that has been clearly strategised and we as Sri Lankans would march towards that halcyon era when we will have eternal peace and harmony.

But I venture to say this, when the Human Rights Council was born, the US Ambassador to the UN, John Bolton said with a flourish, “We want a butterfly. We’re not going to put lipstick on a caterpillar and declare it a success.”  In other words he wished the council to be a butterfly and not something where you put lipstick on a caterpillar – of course the reference to a caterpillar was to the Commission. But in the light of what has been the course of events at this council whose work suffers from politicisation, we wonder whether the General Assembly launched a caterpillar with lipstick that has sullied the fabric of nations that wish to rise from an internecine post conflict.

So I part with these thoughts – Universal Periodic Review would have been the best occasion for a review. But a mistimed and ultra vires resolution once again tells us a sad commentary – the trigger mechanisms for discussion in the Council have grown higgledy-piggledy and those entrusted to watch over the interests of human rights get it wrong as to the vires of their actions.

It reminds me of what that Roman poet Juvenal said in Latin – Quis custodiet ipsos custodes? Who will guard the guardians? Who will take custody of the custodians?

Who indeed?

Thank you.