President speech: Speech to the UNSW UN Society

Speech to the UNSW UN Society

The Hon Catherine Branson QC

UNSW, 23 September 2009

Introduction

May I begin by acknowledging the traditional owners of the land on which we meet, the Gadigal people of the Eora nation and the Darug language group. I also pay my respects to all Aboriginal peoples and Torres Strait Islanders present today.

My role today is to give you an overview of the contribution of the United Nations Human Rights Council to international governance.

At the opening of the first session of the Human Rights Council in June 2006, the President of the General Assembly recognised the importance of international human rights bodies to international governance. He observed that without an effective human rights machinery, the United Nations as a whole would diminish in credibility’.

The Human Rights Council contributes to international governance by promoting universal respect for all human rights and the full implementation of the human rights obligations undertaken by States. It is also tasked with promoting ‘the effective coordination and the mainstreaming of human rights within the United Nations system’. 

Today, I would like to draw your attention especially to a Human Rights Council mechanism that you will likely hear more about in the near future – the Universal Periodic Review process, or UPR for short. Australia is due to be reviewed pursuant to this process in early 2011.

The UPR process provides an incentive for governments to improve the protection of human rights and to engage more effectively with non-government organisations on human rights issues. In this way, the Human Rights Council can contribute not only to international governance - but to more open, transparent and accountable domestic arrangements.

Overview of the Human Rights Council

You may be wondering by now, ‘what is the Human Rights Council’? Is it the same as the ‘Human Rights Committee’? What about the ‘Commission on Human Rights’?

It is very easy to be confused by the names and acronyms of councils, committees and commissions when navigating the labyrinths within the UN system.

I will not attempt, in the short time we have together today, to enter into a detailed discussion of UN bodies and hierarchies. I will leave the intricate web of organisation charts to your lecturers!

However – it is important to note that there is a very real distinction between the Human Rights Committee and the Human Rights Council.

The Committee is a treaty monitoring body. It is responsible for monitoring State compliance with the International Covenant on Civil and Political Rights. It is comprised of independent experts.

The Council is a subsidiary of to the UN General Assembly. It replaced the Commission on Human Rights in 2006.

The Council consists of 47 States, who are elected by secret ballot by Member States of the General Assembly. Membership of the Council is based on equitable geographic distribution.

States elected to the Council are to ‘uphold the highest standards in the promotion and protection of human rights’. The General Assembly, by a two-thirds majority vote, may suspend the rights of membership in the Council of a State that commits gross and systemic violations of human rights.

The functions of the Council include:

• promoting human rights education and learning
• serving as a forum for dialogue on human rights issues
• making recommendations to the General Assembly for the further development of international human rights law
• receiving complaints of consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms.

The Council also appoints independent experts to monitor, advise and report upon human rights situations in specific countries or human rights themes.

For example, you may have heard of the ‘Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people’, who was in Australia only last month. The Special Rapporteur travelled across Australia and met with Government authorities, representatives of Aboriginal and Torres Strait Islander communities and organisations. He will report his findings on the realisation of human rights by Aboriginal and Torres Strait Islander peoples and make recommendations to the Human Rights Council in the coming months.

I would like to focus now on what I believe to be one of the most significant elements of the work of the Human Rights Council – the Universal Periodic Review.

Universal Periodic Review: An Outline

The UPR is a new mechanism. The first UPR session was held in 2008.

Under the UPR, the human rights records of all UN Member States will be reviewed every four years. It is a State-driven process, by which each State declares what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations.

In particular, the UPR assesses the extent to which the State party is meeting its human rights obligations pursuant to:

• the UN Charter
• the Universal Declaration of Human Rights
• human rights instruments to which the State is a party
• voluntary commitments made by the State
• applicable international humanitarian law.

As part of the UPR process, States present a national report. Its human rights performance is then examined by other States in interactive ‘question and answer’ sessions between the State under review and other UN Member States. 

The outcome of the UPR is a report, adopted by the Human Rights Council, containing questions, comments and recommendations made by States to the country under review. This report also contains the responses of the reviewed State.

For example, New Zealand received its first UPR in May this year. The final report on the UPR includes recommendations that New Zealand take actions such as:

• adopting further international human rights instruments, such as the UN Declaration on the Rights of Indigenous Peoples
• introducing measures to bring domestic law into line with international human rights obligations, including those relating to economic, social and cultural rights
• introducing measures to combat discrimination and racism, including in the criminal justice system
• committing more resources to the provision of services for children with disabilities
• reinforcing procedural guarantees in counter-terrorism legislation. 

The primary responsibility then rests with the States to implement the recommendations. The next time the State is reviewed, it will be expected to report on its progress in implementing the recommendations.

The significance of the UPR for international governance

It remains to be seen whether the UPR process can serve as an effective check against human rights violations in the long-term. After all, the UPR process is only one year old.

However, the UPR process provides for the systematic monitoring, on an equal basis, of the human rights situations in every UN Member State. The principles underpinning the UPR expressly state that it should be ‘conducted in an objective, transparent, non-selective, … and non-politicized manner’.

In this way, the UPR contributes to international governance by holding each and every country publicly accountable for its human rights performance. It is a way of encouraging States, on the international stage, to implement their obligations to respect, protect, promote and fulfil human rights.

The UPR also has international significance for Australia. As I mentioned, Australia is due to be reviewed in early 2011. This is important in light of the Australian Government’s intention to seek a highly coveted seat on the UN Security Council for the 2013 – 2014 term.

In the lead-up to the Security Council election, Australia’s human rights record will undergo particularly close scrutiny. For this reason, how Australia performs in the UPR process will almost certainly have a bearing on Australia’s candidacy.

The significance of the UPR for civil society

However, I believe that the UPR process is valuable for a further reason. The UPR has the potential to encourage greater engagement between States and civil society, including national human rights institutions, universities and non-government organisations.

In addressing the opening of the first session of the Human Rights Council, Louise Arbour (then the United Nations High Commissioner for Human Rights) encouraged the Council to draw upon the expertise of civil society.

As Ms Arbour observed:

Their independent scrutiny ensures that accountability is not a mirage. … Drawing on civil society's knowledge, vigilance and energy will help the Council target its action more effectively and justly. It will also set the example for reluctant governments to do the same.

The Human Rights Council encourages civil society to be involved at several stages of the UPR process.

First, States are encouraged to undertake a broad consultation process at the national level with all relevant stakeholders in preparing a national report to present to the UPR.

These ‘stakeholders’ can include NGOs, national human rights institutions (such as the Australian Human Rights Commission), human rights defenders, academic institutions and research institutes.

Secondly, these ‘stakeholders’ may submit information to be considered during the review of the State. These submissions may inform the interactive dialogue between the State under review and other States.

Thirdly, ‘stakeholders’ may attend and observe the interactive dialogue between States during the review.

Finally, ‘stakeholders’ may make general comments before the final report of the UPR is adopted by the Human Rights Council.

It is difficult for most stakeholders to send representatives to Geneva to attend a UPR session – the costs of travel can be prohibitive. The ability for stakeholders to provide input to the State’s national report and to draft their own submissions in the lead-up to the review is therefore vitally important.

Yet, even these aspects of the process present challenges for stakeholders.

We do need to be vigilant and remind States of their responsibilities to conduct broad consultations in the preparation of their national reports. It is not unheard of for a State to conduct ‘consultations’ only after its national report has been fully or substantially drafted.

Also, submissions to the UPR are strictly limited in length – stakeholder submissions must be no more than 5 pages long. All of the reports submitted by stakeholders are then condensed into a 10 page summary by the Office of the High Commissioner for Human Rights.

This means that stakeholders need to be concise and emphasise key, strategic points in drafting their submissions. Stakeholders may also wish to work together to ensure their messages are successfully conveyed.

That being said, I believe that the very process of consultation can assist States to identify human rights problems and, most importantly, develop solutions that are consistent with international obligations.

There are promising signs that the present Australian Government is open to listening to community perspectives on human rights.

A leading example of this is the National Human Rights Consultation. As you may be aware, the Australian Government appointed an independent committee to consult with people in Australia regarding the protection of human rights in this country. The committee received around 40,000 submissions and conducted community roundtables in over 50 locations across Australia. The committee is due to report to the Government by 30 September.

By encouraging the effective participation of civil society in the UPR process, Australia can build upon the dialogue that began with the National Human Rights Consultation.

We look forward to engaging with the Australian Government in the preparations for the UPR of Australia.

Conclusion

The UPR process, and the Human Rights Council itself, are still in their infancy.

However, the UPR is not only a welcome addition to international governance arrangements concerning human rights. It also provides impetus for States to work more closely with non-government organisations, national human rights organisations, academic institutions and community groups to identify solutions to human rights issues.

Thank you for the opportunity to speak with you today.