Making The Council Fitter For The Future: Some Modest Proposals Presented by: Mr. Okafor Date: 5 June 2020 Proposal One: Ameliorating the council's funding crisis - Alternative sources of funding, aside from the portion of the UN's regular budget devoted to the Council's work, are needed to enable the Council's SPMHs enjoy more resources than they currently do in order to discharge their mandates more effectively. • A campaign to increase the quantum of voluntary contributions to the OHCHR budget that supports the work of the Council and its subsidiary bodies/procedures. • Other higher income countries should be persuaded to contribute or contribute more (In 2018: less than 8% came from outside the EU, Japan, US, and Russia!!!) • Risk of tainted money could be countered by no earmarks • The reduction, and even eventual ending, of earmarking practices. • Earmarked donations produce have and have-not SPMHs, etc. • The OHCHR can adopt a UNICEF-style, on-the-ground, fundraising praxis. • In the end, the restoring and increasing the regular budget is better (but hard and harder post-COVID-19 pandemic) Proposal Two: A Squeaky-Clean Membership Profile? - While understandable, the problem with this position, lies with both its conceptual coherence and the extent to which it is practicable. • Correct at the level of general ethical principle (we don't want the Council to be a home for states with poor human rights records) • Coherence problem: what is the conception of a human rights violator which ought to be excluded? Civil and political rights; ESC rights? Both? Migrant rights? Indigenous peoples? In practice, conception is almost entirely CP rights-based. Problematic. Limited conception. • Practicability problem: Alston for e.g. has shown why even a "simple" division of the world into "democratic" and "non-democratic states" would be difficult to implement as a membership criteria (except at the greatest extremes) • Remember that it is the General Assembly that elects and not the Council • MUCH BETTER from a practical perspective is to specify in much greater detail the criteria for membership in the Council, and to do so in a way that screens out in as broad a way as can be as many of the states that have grossly violated human rights as possible. - For example, amend operative paragraph 8 of General Assembly resolution A/RES/60/251 to include new language that would require that any state which, within the six years preceding the election to membership in the Council that is at issue, meets any one of the following criteria, would be automatically ineligible to stand in that election, namely: • The state has been found by the Council to have failed to cooperate with it or any of its subsidiary bodies or procedures; • The state has refused, or delayed for more than three years, a fact-finding visit to its territory or any territory under its de facto control, by any United Nations special procedure mandate holder (SPMH), treaty body or commission of inquiry; • The state has been found by the Council to have attacked, attempted to intimidate, or obstructed the work of, any SPMH, treaty body or commission of inquiry; • The state has been found by any SPMH, treaty body or commission of inquiry to have committed gross violations of any human right (whether that right is categorized as civil/political or economic/social, or indigenous or migrant). - The six-year baseline for "measuring" a state's human rights record is to allow some flexibility to account for changes in state behavior over time. - Although, six years is thought to be just long/short enough a period of exclusion, since it is the length of two terms on the Council, this timeline is not cast in stone. - What should be kept in mind here is that the six-year baseline is a rolling one. • For example, if a state has been found by any SPMH, treaty body or commission of enquiry to have committed gross or mass violations in 2020, it would be ineligible for membership in the Council until after 2026. If, however, that state was to be found to have committed another distinct gross human rights violation in 2021, this ineligibility period would extend to 2027. - On the whole, it is recognized that even if these criteria are faithfully applied, they would not screen out all gross human rights violators from eligibility for membership in the Council. - Nevertheless, they would still ensure that many more gross violators would be unable to secure seats on the Council. - Alternatively: A closely related option is for the General Assembly to adopt the above criteria as INDICATORS and establish a five-person screening committee to apply them to candidate states Proposal Three: Ending Selectivity? - While the US' accusation of bias and selectivity against the Council is not all that convincing, it is still capable of doing some damage to the Council (none the least because of the US' ideational, political and economic power - So, to be pragmatic, something needs to be done to take away this excuse from those who would not cooperate with the Council: • Include other situations in which egregious human rights violations are rampant on the Council's permanent agenda. • Or, as suggested by former UN Deputy High Commissioner for Human Rights, Bertrand Ramcharan, restructure the Council's agenda away from having the same permanent agenda for all Council sessions to sharing only two common agenda items. • This would still allow Council to focus on whatever it wanted to focus on. Proposal Four: Improving The Council's Fact-Finding System - Point was made earlier about length of these missions affecting their depth/rigor - I suggest a modest period of 4 weeks minimum for SPMH missions (still very short but longer than one or two weeks) - Funds will be an issue (even more so post-pandemic) - My calculation: an estimate of an additional $6 million US dollars per annum to be able to do so - But nine countries plus the UNDP and EU each gave that amount or more in 2018 (not totally impossible therefore) - Interim measure: raising funds to support the lengthening and deepening of SPMH field missions ought to be a key priority for the Council and OHCHR that supports its work. - Direct support of OHCHR staff during the first two or last two weeks of field missions Proposal Five: Enhancing The Independence Of The Council's SPMHS From States - The UN ought to institute a more adequate and routinized system of holding accountable any state that behaves in any of the impugned ways. - Rebukes and condemnations alone are not adequate (given the gravity of the offence) - One proposal already suggested (as part of improving the human rights records of states elected to the Council) is that any state that has been found by the Council to have attacked, attempted to intimidate, or obstructed the work of any SPMH, treaty body or commission of enquiry, over the six years preceding any election to membership in the Council, should be ineligible to contest that election. Proposal Six: Enhancing the Independence of the Council's SPMHs from the OHCHR - In the light of the "Yes, Minister!" problem, SPMHs should be empowered by Council and General Assembly resolutions, and a UN Headquarters decision, to interview, select and appoint their own OHCHR assistants - albeit from a pool of existing OHCHR staff. - They should also be able to terminate such appointments - This will alter the incentive current structure under which these staff work (dictating that they pay significantly more attention to their bureaucratic bosses, procedures, policies than to what the SPMH wants) Proposal Seven: Making standing invitations to SPMHs more meaningful - There is need for reforms that could encourage many more states to take the standing invitations that they issue to SPMHs more seriously. • The Rule proposed earlier that any state that has, within six years preceding an election to membership in the Council, delayed a country visit from a SPMH for more than three years, should be barred from eligibility, will help Proposal Eight: Allowing The Advisory Committee To Initiate Its Formal Thematic Studies/Reports - The Council should confer such power on the Advisory Committee by amending its resolution on the Council's institutional package. • This may be a hard sell because it was deliberate on Council's part to strip this power from the committee in the first place • Still worth the effort to pursue it • Why spend so much money on your think tank but not allow it to think independently - In addition: To avoid any doubt as to its legality under the Advisory Committee's constitutive instrument, the Council ought to explicitly recognize the practice begun by the committee of considering for its own internal consumption, "reflection papers" prepared by some of its members. Proposal Nine: Ensuring That Most Advisory Committee Members Are Experienced Researchers. - There is a need for reform that would ensure that the Advisory Committee is largely composed of highly trained/experienced human rights researchers, and alter the current situation in which it is becoming increasingly composed by retired diplomats. - ]The Council should amend its "Institution-building package" to specify that no less than 14 of the 18 members of this committee be relatively senior human rights researchers (preferably but not limited to academics at least at the rank of Associate prof or Senior Lecturer or equivalent) - Current language is too general and loose - Another hard sell? The Council is run by diplomats - Retired diplomats are welcome on the Committee and contribute a lot (there should just not be too many of them on it) Proposal Ten: Confronting Right-Wing Populism's Negative Impact On The Council And Its Work - ✓ The Council and its subsidiary bodies/procedures should conduct more studies on this question and issue/disseminate relevant reports. - ✓ The Council may also hold panel discussions on this question during and outside its regular sessions. - ✓ The Council can pass condemnatory resolutions in the relevant regard, and respond as robustly as it possibly can to communications and complaints that are received by its SPMHs and its complaints mechanism. Conclusion - Assertions of the Council's irrelevance or tendency to malfeasance, and even systematic arguments in that would, appear rather too exaggerated. - Predictions of the Council's forthcoming demise likewise appear hyperbolic. - The overall evidence does not appear to point to a Council that has failed. Far from it. - The Council has many attainments to boast of. Yet, as section III makes clear, the Council does face many noteworthy problems, some more serious than others. - The discussion in section IV makes it clear that concerted reform-oriented action by the Council, the General Assembly, states and other stakeholders, along the lines suggested there, could ameliorate many of these problems to significant extents, thus boosting the Council's record of attainment.