41st Session of the Human Rights Council.

Where do things stand with the 2021-2026 review of the Council’s status?

by Marc Limon, Executive Director of the Universal Rights Group Blog, Blog, Instituciones, procesos y mecanismos de derechos humanos internacionales

On 9 June, the President of the Human Rights Council, H.E. Ambassador Nazhat Khan (Fiji), convened an informal exchange on the General Assembly’s review of the Council’s status, due to be conducted between 2021 and 2026. This was the first time Geneva delegations had had the opportunity to consider the ‘2021-2026 review’ since the summer of 2019, when it had been one of the main topics of debate during the 6th Glion Human Rights Dialogue. The 9 June meeting demonstrated that the COVID-19 pandemic helped place that debate into ‘suspended animation’ – the positions, arguments and disagreements expressed were almost exactly the same as they had been two years earlier.  Broadly speaking, they remain as follows: all delegations agree that ‘Geneva’ should contribute to the GA’s review, but the Council should wait for a formal request from the President of the GA before proceeding; beyond that limited common ground, however, there remain persistent divisions over the scope, form and content of any ‘Geneva’ contribution, as well as over the process to develop that contribution (e.g., informal or formal, purely intergovernmental or also incorporating the views of civil society and the UN secretariat).

Background

At the 2005 World Summit, UN member States decided to strengthen the human rights pillar by creating the Human Rights Council in replacement of the Commission on Human Rights. This decision was taken based on proposals contained in the-then UN Secretary-General’s report ‘In larger freedom: towards development, security and human rights for all.’ According to this report, the establishment of a smaller standing Human Rights Council ‘would accord human rights a more authoritative position, corresponding to the primacy of human rights in the Charter of the United Nations.’ The report left it to States to decide whether the Council should ‘be a principal organ of the UN or a subsidiary body of the General Assembly.’

In March 2006, States adopted GA resolution 60/251 formally establishing the Council as a subsidiary organ of the GA. With this resolution, they decided that ‘the General Assembly shall review the status of the Council within five years.’ At the same time, the GA called upon the Council to ‘review its work and functioning five years after its establishment and report to the General Assembly.’

In March 2011, after completing the review of its work and functioning as requested in GA resolution 60/251, the Council adopted resolution 16/21.’ The GA recognised this outcome in resolution 65/281 and decided to maintain the status of the Council as a subsidiary body. It further decided ‘to consider again the question of whether to maintain this status […] at a time no sooner than ten years [i.e., 2021] and no later than fifteen years’ [i.e., 2026]. On this occasion, however, the GA did not request the Council to conduct a further review of its work and functioning.

During the fourth Glion Human Rights Dialogue in 2018 (Glion V), States and other stakeholders had an early opportunity to look ahead to the 2021-2026 review, and to consider the question of whether and how the Council and ‘Geneva’ should contribute. The strong view of participants was that ‘Geneva’ should indeed provide a contribution to help inform the GA’s deliberations. However, there was no consensus over the nature or timing of that contribution. In January 2019, Switzerland and the Universal Rights Group published ‘Vision 2021’ setting out key questions and issues to be considered in the context of the review.

In February 2019, these issues were raised again in a 2019 Council Bureau ‘Roadmap for 2019.’ The paper noted that the absence in GA resolution 65/281 of an explicit request for the Council to conduct a review of its work and functioning had led to discussions over: ‘(1) whether and how the Council should contribute to the 2021-2026 review as it did in 2011; and (2) whether a review of the Council’s work and functioning should be undertaken?’

On 28 March 2019, the then President of the Council, H.E. Ambassador Coly Seck (Senegal), convened a first open informal consultation seeking the initial views of States on how, if at all, the Council might usefully contribute to the 2021-2026 review. As during Glion V, there was a clear sense that ‘Geneva’ should contribute. It was repeatedly noted that because experience and expertise about the Council largely reside in Geneva, it would be necessary for delegations to the Council and other Geneva-based stakeholders to feed into the New York-based review. Moreover, although some participants argued that it is too soon to begin talks in Geneva, others already made concrete suggestions regarding the possible form of an eventual contribution.

Notwithstanding these initial ideas, there was also a strong view that the Council should ultimately take its lead from the GA. This might come, for example, in the form of an informal signal from the President of the GA (e.g., in a letter to the President of the Council) or in a more formal GA decision (i.e., a resolution providing the Council with a specific mandate to act).

Glion VI

The sixth Glion Human Rights Dialogue (Glion VI, summer 2019), was the last occasion (before the June 2021 informal consultation – see below) when States and others had an opportunity to discuss the 2021-2026 review, and ‘Geneva’s’ contribution thereto, before the COVID-19 pandemic placed the matter in ‘suspended animation.’

Glion VI covered a number of key questions pertinent to the review, including the following:

Should there be a ‘Geneva’ contribution?

Glion VI revealed broad agreement that ‘Geneva’ should provide a substantive contribution to the 2021- 2026 review, given that expertise on the Council and its work resides in Geneva. For example, some called it ‘almost inconceivable’ that New York would not ask for a Council contribution. It was also reported that, following the 28 March consultations, H.E. Ambassador Coly Seck had met the President of the GA to provide a sense of the views shared. The GA President was said to be ‘very open to receiving Geneva’s views and inputs.’

While not disagreeing on the importance of a strong Council contribution to the 2021-2026 review, some participants argued that it was rather pointless for ‘Geneva’ to be discussing these issues now, because the review is a purely GA prerogative. ‘We should, therefore, wait for a signal from New York.’

New York expectations

A pre-Glion policy dialogue in New York demonstrated that GA delegations were yet – at the time – to give much thought to the 2021-2026 review. There was nonetheless broad agreement that ‘the GA will, at some point, seek expert input from Geneva.’ It was also clear from the policy dialogue that colleagues in New York understood the importance of close coordination and coherence between the Council and the GA, of building a strong and effective human rights pillar, and of the value of a Geneva contribution to any review.

Nature of a possible ‘Geneva’ contribution

Participants at Glion VI discussed various options for the possible shape and content of a ‘Geneva’ contribution.

One argued that because the 2021-2026 review will only focus on the narrow question of the Council’s status (i.e., should it remain a subsidiary body or be elevated to be a main body?), any ‘Geneva’ contribution should only address this question. Those opposing this argument said that such a narrow review would be a ‘pointless exercise,’ because it is highly unlikely that the GA would decide to change the Council’s status – not least because making the Council a main body of the UN would involve amending the UN Charter.

At the other end of the scale of ambition, one participant called for a broad review of the Council’s work and functioning – as in 2011. Only by undertaking such a review could the Council offer meaningful advice to the GA on the question of status. There was, however, little support for this proposal.

A possible ‘middle option’ was also discussed. This would see the Council undertake a process of reflection or self-assessment to gage the degree to which it has been able to fulfil its mandate as defined in GA resolution 60/251. A supporter of this approach opined that: ‘most people agree that the Council has generally done well in implementing and delivering on its mandate over the past twelve years […] Almost nobody thinks the Council is broken or that GA resolution 60/251 and the institution-building package [IBP] need fundamentally revisiting. Therefore, a light process of reflection that identifies achievements and successes, as well as shortfalls and areas for improvement, would be more appropriate than a full review of the Council’s work and functioning – which would necessarily involve revising the IBP.’

Such a light process of reflection would be premised, it was argued, on assessing the degree to which the Council has delivered on each aspect of its mandate, as elaborated in GA resolution 60/251 and the IBP (as amended by the five-year review outcome). ‘It should not be premised on questioning or revising those basic documents.’

A further suggestion was for such an exercise to also cover the Council’s relationship with the GA’s Third Committee. It was argued that the 2021-2026 review represents an important opportunity to discuss and bring greater clarity and coherence to the Council’s relationship with the GA.

There was very little support for a fully-fledged intergovernmental process, like the one employed for the 2011 review. Generally speaking, this opposition was driven by a concern not to ‘reopen’ GA resolution 60/251 or the IBP, and a concern that an elaborate process would distract attention from the Council’s important everyday work. The backdrop to these calls for caution was, as relayed by one participant: ‘a global situation where the human rights community is on the defensive – and which is therefore not well-suited to progressive thinking and reform.’

While there was broad agreement that the Council should not organise a formal intergovernmental process, there was little agreement about what it should do. Some insisted that whatever the process might eventually look like, it must be State-driven and State-owned. Others expressed doubts that States would be able to agree on a common critique or appraisal of the Council’s performance since 2006 or agree on priority areas for improvement. These participants, therefore, suggested that a group of eminent experts (e.g., former Council Presidents) be mandated to consult with States and other stakeholders to reflect different views, areas of common ground, and ideas for strengthening the Council’s delivery and impact. Such a process would have the benefit of being ‘light’ – i.e., minimising disruption to the on-going work of the Council. Others pointed out that it would also be more sustainable than a typical Bureau-led process – because Council Bureaus change every twelve months; and more inclusive – with the full participation of civil society. Other participants, however, strongly disagreed with any such attempt to ‘outsource’ the review, reiterating the argument that any process must be State- led.

Another idea was for the Council or the GA to mandate the High Commissioner or Secretary-General to consult widely (in Geneva, New York and in the field) and deliver an independent assessment of the Council’s work and impact since 2006. Such a report could also contain recommendations for improvement for further consideration by States. Several participants objected to this proposal, pointing out that the Secretariat does not have the power to judge the work of States.

Others pointed out that while this type of independent assessment could be requested by the Council (i.e., through a resolution), it could also be undertaken at the own initiative of the High Commissioner or Secretary-General. It was argued that there are numerous precedents for this, such as Kofi Annan’s 2005 report ‘In Larger Freedom,’ as well as former High Commissioner Louise Arbour’s 2005 ‘Plan of action’ in which she submitted her views on the future of OHCHR and the soon-to-be-created Council (including its universal peer review mechanism).

One developing country participant proposed a possible compromise on the question of whether a ‘Geneva process’ should be purely intergovernmental or might also benefit from ‘outside or independent input.’ According to this proposal: ‘We could be supportive of inputs by the High Commissioner or a group of eminent experts, which may indeed contribute to informed decision-making.’ At the same time, ‘such inputs must be fed into a wider, State-led process that enjoys the support of all States and other stakeholders. Independent assessments could not themselves constitute Geneva’s contribution to the GA’s review.’

9 June informal exchange on the review of the status of the Council

Introducing the exchange on 9 June this year, the 2021 President of the Council, H.E. Ambassador Nazhat Khan, set out a number of key questions and issues for consideration by delegations:

  1. Whether Council could and should contribute to GA review of the status of the Council, and, if so, how, and when, it should do so?
  2. The 2019 informal discussion had concluded it was too early to discuss the GA’s review of the status of the Council.
  3. Now, as we are in 2021, the start of the review ‘window,’ it is surely the moment to begin our considerations.
  4. The Council is a unique body amongst UN subsidiary bodies, and thus it is important to use opportunities such as the 2021-2026 review to strengthen.
  5. Impartiality and inclusiveness make it easier for the Council to fulfil its responsibilities.

Responding to these comments and questions, several delegations took the floor.

Egypt, on behalf of Arab group, again claimed it is ‘quite premature’ to begin consultations in Geneva, especially considering ‘the GA review process has not yet begun in New York.’ Egypt also reaffirmed the view of the Arab group that the review should only focus on the status of the Council, that there is no mandate for a wider review of the body’s work and functioning, and that members should wait for a signal from New York before commencing.

Angola underscored the importance of a contribution from ‘Geneva.’ Such as review process, they argued, ‘cannot be properly conducted without participation of all stakeholders in Geneva – the people who bring the Council to life – nothing should be done for us without us.’

Speaking along similar lines, Indonesia made clear that the Council ‘can and should contribute’ to the review. ‘Geneva’s’ views and feedback would ‘enrich discussion at the GA,’ though this must be done ‘in the correct way.’ On the latter point, this would mean focusing on ‘the status of the Council,’ and not the body’s working methods or the IB package.

Morocco, on the other hand, called the review an important opportunity ‘to evaluate, at a global level, the actions undertaken at Council since 2006.’ It was also a moment to consider pressing systemic questions such as the financial and other resources available to the Council and the wider human rights pillar. Morocco also called for the review, and the Council’s contribution, to be a ‘unifying exercise,’ ambitious and forward-looking.

India also called for an ambitious and wider contribution from ‘Geneva’ – not only focused on the ‘yes or no’ question of the body’s status. For example, ‘the Council’s achievements and failures should be assessed’ during any such review, which would make ‘an invaluable contribution’ to the GA’s reflections. India urged the Council President to discuss modalities for the review, and ‘Geneva’s contribution,’ with the President of the GA. In the meantime, the Council must continue its own internal discussions on its efficiency and functioning.

China, speaking on behalf of the Like-Minded Group (LMG), stressed that, as per GA resolution 65/281, this is only a review of the Council’s status, and should not go beyond that – i.e., it ‘should not overstretch’ (e.g., by considering working methods of the IBP). China noted that the Council has already taken a number of steps to enhance its efficiency and streamline its working methods. The LMG emphasised the point that the review is by the GA and should thus be led and directed by the GA, through intergovernmental processes. And discussions in Geneva, and any ultimate ‘contribution’ by ‘Geneva,’ should be of an informal nature, and should only happen at the request of the GA (which should indicate when and how the Council should feed in). As of today, the GA is yet to decide on the timeframe, modalities, and format of the mandated review. China asked the President whether has spoken to the PGA or received any clarifications, and what her next steps would be.

Australia, speaking on behalf of Canada, Iceland, Liechtenstein, New Zealand, and Norway, reaffirmed their view that the Council should and must contribute to the GA’s status review. For the GA’s deliberations to be meaningful, it would be important for the Council to provide information on its own achievements and challenges, and to offer ideas for strengthening its effectiveness in the future (e.g., by securing greater participation on the part of SIDS). That said, Australia recognised that the timing and modalities of the review should be decided by the GA, and called for a light process in the Council. Finally, Australia made clear that the voices of civil society and NHRIs must be heard during discussions in Geneva.

Montenegro agreed with the position taken by Australia and underscored the fact that the GA’s status review should be seen as an opportunity to reflect, in Geneva, on how the Council can better deliver on its mandate.

Argentina argued that while GA resolution 65/281does not expressly require a contribution from the Council, there is certainly no obstacle to such a contribution, and indeed, it is entirely logical for the Council to provide input into a review of its own status.

The UK argued that ‘when GA considers the Council’s status between now and 2026, it should do so on basis of all relevant information.’ It is entirely logical, according to the UK, ‘to examine how a change in status would impact the Council’s functioning’ – and this must indeed be a ‘guiding consideration for the status review.’ While the GA should specify the timing and modalities of the overall review, there is nothing to stop the Council President offering advice and views to the PGA. Finally, the UK argued that, in addition to intergovernmental consultations, it would be useful for the Council to request an ‘independent, expert and objective report’ by the High Commissioner for Human Rights.

Egypt stated that the situation remains unchanged from the last meeting in 2019. GA resolution 65/281 is clear, they argued: the review is to be led by the GA and should only focus on the Council’s status. The GA has only mandated one review of the Council’s work and functioning, and that was completed in 2011. Regarding proposals that the Council should conduct a ‘self-assessment’ and feed this into the GA, Egypt argued that the Council is constantly reviewing and seeking to improve its work (e.g., the efficiency process).

Iraq agreed with Egypt and others, and asked the President whether the GA has already asked for input from the Council?

The Russian Federation said it was ‘quite early’ for the Council to have this discussion, and indeed, questioned whether the President of the Council has a mandate to do so. Nonetheless, ‘while this process belongs to colleagues in New York, we are ready to contribute if there is a request.’

Brazil made clear that ‘the Council could and should contribute to status review process,’ and that ‘this should be done in an inclusive and transparent manner.’ The Council should work ‘closely with New York given that we have different, complementary perspectives.’ A useful Council contribution would be to undertake a ‘self-diagnosis’ of its work and delivery, looking at ‘positive and negative points.’ That diagnosis is essential in order to answer the question of whether the Council’s status needs to be modified or not.

Japan said it is important to keep work of Council under continuous review, and that the status review offers an important opportunity to consider ways to strengthen the body and the wider human rights pillar. Delegations should therefore be proactive in seeking to contribute. Japan agreed with Brazil that a self-assessment of the Council’s successes and failures would form an essential component of any consideration, by the GA, of the Council’s current status. Japan suggested that the President designate facilitators to coordinate such an assessment. Japan also supported the commissioning of an external evaluation, for example by the High Commissioner.

Thailand said it is imperative that ‘Geneva’ contributes to the review process: ‘we have,’ they said, ‘the first-hand experience and the institutional memory.’ In the long-term, argued Thailand, the Council should be a main body of the UN. Geneva’s contribution should be developed through inclusive intergovernmental consultations, and should include a self-assessment of our ‘achievements and failures so far.’ We should also consider, they said, what the Council could do better to improve the situation of human rights on the ground, such as enhancing our capacity to deliver technical assistance, and addressing human rights situations in a more ‘balanced way.’

Switzerland agreed that the Council must necessarily contribute to this review, as relevant expertise ‘resides in Geneva.’ To be successful, the review must be based upon close coordination between Geneva and New York. Switzerland expressed its openness to consider ‘different options for the review process,’ as long as it is ‘transparent and inclusive.’

Cuba aligned itself with the statement of China on behalf of the LMG. It called the 9 June discussions ‘premature and intrusive.’

Uruguay called upon the Council to participate constructively in the GA review process, including by presenting ‘concrete proposals.’ That said, Uruguay agreed that a review of the Council’s work and functioning would be beyond the limited mandate of the GA process.

Peru underscored the importance of using the opportunity of the review to enhance the UN’s ability to protect and promote human rights on the ground.

The EU argued that while the ultimate decision on the Council’s status rests with the GA, it is clearly vital that the Council’s views are fully considered. The EU therefore encouraged the President to contact the Secretary-General and PGA to better understand the timing and likely modalities of the review process. The EU reiterated the importance of having three strong Councils at the UN, each representing the three pillars of the organisation, and for the human rights pillar to be adequately funded.

The International Service for Human Rights (ISHR) delivered a joint statement based on a letter endorsed by 25 NGOs. ISHR argued that the most significant shortcomings in work of Council are not due to its mandate but rather ‘a lack of political leadership on key issues.’ Thus, the scope of GA’s considerations should remain focused on the status of Council and should not cover its work and functioning. Such a wider review might entail risks for the Council, and, moreover, previous reviews (e.g., 2011) secured only limited outcomes. Instead of intergovernmental discussions, NGOs proposed that the High Commissioner or Secretary-General prepare a review of the Council’s work – success, failures, and areas for improvement – with input from civil society, States and NHRIs. This would then be forwarded to the GA.

Mexico insisted that any review of status of Council should be based on a prior analysis by the Council itself – especially focusing on the progress it has made since 2006. Mexico also called for the overall review to encompass the adequacy of financial resources for the human rights pillar, and the ‘technical capacities’ of the Office of the High Commissioner for Human Rights.

Jamaica argued that it would be entirely appropriate for the Council to provide input into the GA’s review process, given its unique perspective and work, and that its contribution should include ideas for ‘strengthened collaboration between Geneva and New York.’ The modalities and timing should be determined in consultation with the GA and at their request.

The US called for the review, and any ‘Geneva’ contribution thereto, to focus, in particular, on two issues: the anti-Israeli ‘bias’ inherent in its agenda, and the body’s track record of membership. On the latter point, the US contended that members must display and be held to the highest human rights standards.

Iran, Syria and Sri Lanka spoke in support of the broad position set out by China on behalf of the LMG.

Algeria questioned the wisdom of talking about ‘Geneva’s views’ and ‘New York’s views,’ when it is the same States represented in the two UN centres.

Panama suggested that the Council should contribute to the GA’s reflections in a similar way as it did in 2010-2011. It urged the President to engage with the PGA to better understand how the GA intends to move forward. Panama agreed that the ‘Geneva’ process should not touch the IBP.

Lastly, Botswana agreed with Panama and others that it is ‘difficult to contemplate the fate of the Council without involvement and input of the Council itself,’ and thus also urged the President to consult with the PGA on timing and modalities.

Council President’s response to questions

In response to some of the comments and questions raised, the Council President clarified that, thus far, no formal or informal requests for input had been received from the PGA. However, discussions on this issue did occur during the President’s courtesy call with the PGA, and the latter was, inter alia, informed about the upcoming (9 June) consultations in Geneva. These discussions are important, the President explained, considering that the review period officially began on 1 January. Ambassador Khan noted that she is yet to receive any information from the GA about their plans or a possible timeframe for the review.

Share this Post