5th session of the Human Rights Council: 11 to 18 June 2007The first year of the Human Rights Council has now come to a close, with the adoption of a package of measures that set in place the tools, agenda and working methods that will guide the Council’s human rights work through the year and years to come.
Under the leadership of President de Alba of Mexico, the Council has been working through the past year to reach agreement on a text covering the modalities for the Universal Periodic Review, the review of the system of Special Procedures, the Human Rights Council Advisory Committee (formerly the Subcommission), the Complaint Procedure, the Agenda and Framework for the Programme of Work, and the Council’s Rules of Procedure.
The mandates of Council-members elected for the first year were due to expire at the end of Monday, June 18, one year after the inaugural meeting of the Council. Tense and intense negotiations continued throughout the day and into the evening. A reception planned by the Mexican delegation to celebrate the end of the session was postponed, as word began to filter through that the President’s text risked being withdrawn in the failure of an agreement. China continued to hold out in efforts to impose a higher threshold for the creation of country mandates; Canada continued to oppose a separate agenda item on the Occupied Palestinian Territories. As the evening wore on, delegates attended the Mexican reception around 9-ish anyway, because by that time, we were all ready for a few margaritas. (Sadly, however, the mariachi band was deemed inappropriate and sent home halfway through its first song.)
As the clock ticked down towards midnight, President de Alba entered the room literally seconds before the mandates of Council-members and his own Presidency were due to expire, to announce that there was agreement on a text. Delegates rose to their feet to celebrate the extraordinary efforts of the President and the completion of the first year of the Council’s institution-building work. China had withdrawn its objections in return for a fairly inoffensive provision that proposers of a country resolution should seek the broadest possible support, and Canada did not express its objection to the Agenda. Delegates left the room shortly after midnight, tired, weary, but generally satisfied.
The drama continued the next day, as the new members of the Council assumed office, the Chair was handed over to the Romanian President, and Canada renewed its objections, challenging a ruling of the new Chair that the text had been adopted by consensus the previous evening. By a vote of 46-1, with no abstentions, the Council affirmed the Chair’s ruling and the understanding that the text had been duly adopted. Yesterday and today, States and NGOs have been making general statements and explanatory comments.
On the substance of the issues, many States and NGOs will have their own analyses, and inevitably no-one was satisfied with every aspect of the package. However, there is a general sense that the package represents the best result achievable, and provides many tools that we will need to work hard to apply to maximum effect as we move into the crucial next phases of implementation.
A number of sexual rights and other NGOs worked hard to ensure integration throughout the text of a gender perspective. We were pleased that:
(i) in the Universal Periodic Review, the Principles include the requirement to “ensure that a gender perspective is fully integrated in the UPR”;
(ii) in the appointment of Special Procedures, “due consideration should be given to gender balance and equitable geographic representation”, among other things;
(iii) in electing the 18 members of the Human Rights Council Advisory Committee, “due consideration should be given to gender balance”, among other things;
(iv) in the Complaint Procedure, “the Human Rights Council Advisory Committee shall appoint five of its members, one from each regional group, with due consideration to gender balance, to constitute the Working Group on Communications”;
(v) also in the Complaint Procedure, “each regional group shall appoint a representative of a member State of the Council, with due consideration to gender balance, to constitute the Working Group on Situations”;
(vi) finally, we were very pleased that a “Gender perspective” was included as a Principle guiding development of the Agenda and Programme of Work. Despite a statement on gender mainstreaming delivered at the last session of the Council by Argentina on behalf of 57 States, the version of the Agenda and Programme of Work released by the President just the day before the adoption of the text was silent on gender issues. Even though many States told us that the opportunity for further amendments was now closed, sexual rights and mainstream human rights advocates continued to work through the final day for inclusion of a reference to a “gender perspective” in the Principles underpinning the agenda. Particular credit must be given to Chris Sidoti of the International Service for Human Rights who, in a meeting with the President on the last afternoon of the last day, secured the President’s agreement to amend the final text. The challenge now will be to ensure that commitment to a gender perspective is adequately reflected in the Council’s annual Programme of Work when it is subsequently developed.
In relation to sexual orientation and gender identity issues, we will have many opportunities to continue to advance our issues throughout the upcoming year. The Agenda contains items on the “promotion and protection of all human rights”, including “civil, political, economic, social and cultural rights, including the right to development”, and the framework for a Programme of Work develops these themes with subitems on “rights of peoples, and specific groups and individuals”, as well as the “interrelation of human rights and human rights thematic issues”. Other agenda items include “human rights situations that require the Council’s attention”, “Human Rights Bodies and Mechanisms”, the Universal Periodic Review, “follow-up and implementation of the Vienna Declaration and Programme of Action”, and “racism, racial discrimination, xenophobia and related forms of intolerance, follow-up and implementation of the Vienna Declaration and Programme of Action”.
The section on the Council’s Methods of Work affirms a range of tools available to the Council in addition to resolutions, including “panel debates, seminars and round tables”, which could prove useful when the time comes to pursue the proposal in last December’s Norwegian statement for a substantive discussion in the Council on issues of sexual orientation and gender identity. It is also implicit in the text that Special Sessions of the Council may address thematic human rights issues in addition to country situations.
The mandates of all thematic Special Procedures have been renewed until such time as they can be considered by the Council in accordance with its Programme of Work. In addition, the President’s text acknowledges that it may be necessary to create new mandates in order to advance principles such as “universality, … with a view to enhancing the promotion and protection of all human rights.” In the course of the Council’s upcoming work, “areas which constitute thematic gaps will be identified and addressed, including by means other than the creation of special procedures mandates, such as by expanding an existing mandate, bringing a cross-cutting issue to the attention of mandate-holders or by requesting a joint action to the relevant mandate-holders.”
The Special Procedures have themselves produced a paper on protection gaps, which highlights “discrimination on the grounds of sexual orientation” on the top of its list of protection gaps, closely followed by “discrimination on the grounds of HIV/AIDS”. Further areas that may be identified as protection gaps include discrimination and non-violence more generally, and protection of the right to privacy. A number of us will participate tomorrow in the annual meeting of the Special Procedures, where these issues will be further addressed, including drawing the Special Procedures’ attention to the Yogyakarta Principles on sexual orientation and gender identity. (I also had the opportunity to speak to issues of sexual orientation and gender identity, and to the Yogyakarta Principles, at the annual meeting of Chairpersons of Treaty Bodies yesterday).
There had been concerns that a Code of Conduct, initially developed by the African Group, could unduly undermine the independence of the Special Procedures. After several rounds of negotiations, however, consensus was reached on a significantly-improved text. Although the text still contains some provisions of concern, it also reinforces States’ obligations of cooperation with the Special Procedures, and affirms the “universal, indivisible, interrelated, interdependent and mutually reinforcing” nature of rights, which may provide a useful interpretative tool to respond to States who seek to construe the mandates of the Special Procedures restrictively.
The Universal Periodic Review mechanism will also provide a valuable new tool for scrutinizing the human rights records of all States on a continuing basis. NGOs will be able to provide written materials on the human rights situation in each State under review, which will be summarised by the OHCHR and provided to the Working Group conducting the review. NGOs will also have the opportunity to make general comments prior to the adoption on the outcome in the Council plenary. We will not be able to directly participate in the interactive dialogue with the State concerned before the Working Group, but will be able to attend and, as always, may provide States with suggestions on matters we would like to see raised during interactive dialogue. It will be important for us all to work closely with both domestic and international human rights NGOs to strengthen documentation of human rights issues pertaining to sexual orientation and gender identity, and ensure appropriate follow-up throughout the UPR process.
As you can see, much work remains ahead of us, but we also feel that much has been accomplished, and are excited at the opportunities and tools that will be available in our collective efforts to advance issues of gender, sexual orientation and gender identity within the human rights framework of the United Nations.
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