Should Commitments to Implementation Factor into Elections to the Human Rights Council?

Following the recent celebration of the UN Human Rights Council’s tenth anniversary, one of the key questions for its next decade is how it can play a more effective role in promoting the implementation of human rights standards and norms and its own and other UN bodies’ recommendations. This shift is critical given the serious deficiencies in implementation, despite the former UN Secretary General Kofi Annan’s call almost 15 years ago for a focus on the ‘implementation of the commitments we have made’ in an ‘era of commitment and implementation’. The recent Universal Rights Group Glion III report points to ‘important signs that UN Member States are increasingly turning their attention to the question of implementation, and how best to support it’ including within the Council. Recently, the President of the Council remarked that the Universal Periodic Review process holds ‘great potential to lead the charge’ in this regard. Tomorrow, the Council’s UPR Working Group will hold a half day panel discussion on ‘national reporting processes and structures’ as a key means to achieving implementation.

On 28 October, the UN General Assembly held elections for 14 new vacancies in the Human Rights Council. In this post, I ask whether and how the election process could provide a further lever to the burgeoning implementation project within the Council. I use the example of the UK’s recent re-election to illustrate how a deeper connection between implementation and election to the Council could be made, particularly through pledges to establish national implementation and follow-up mechanisms.

Expectations of Council Members

In 2006, the General Assembly in Resolution 60/251 outlined the requirements for membership of the Council as: (1) ‘the contribution of candidates to the promotion and protection of human rights’ (2) the submission of ‘voluntary pledges and commitments made thereto’ (4) the ‘uphold[ing of] the highest standards in the promotion and protection of human rights’ (5) ‘full[] cooperat[ion] with the Council’ and (6) agreement to ‘be reviewed under the universal periodic review mechanism during their term of membership’. The Resolution also indicated that the commission of gross and systematic human rights violations could result in the suspension of membership.

The UN Office for the High Commissioner for Human Rights (OHCHR) later produced guidance on the content of voluntary pledges and commitments to supplement and deepen the general criteria set out in Resolution 60/251. The OHCHR divides its guidance into ‘international’ and ‘national contribution, pledges and commitments’. At the international level, its expectations include cooperation with UN special procedures, treaty monitoring bodies and OHCHR and ‘commitment to fully support and engage constructively in the deliberations of the Human Rights Council’. It also includes commitment to implementation of the concluding observations of treaty bodies. At the national level, the OHCHR not only expects information to be provided on the human rights framework but also indicates that states should identify ‘principal human rights challenges as well as an indication of steps to be taken to meet these challenges’.

The OHCHR’s guidance confirms that membership in the Council is as much about playing a leadership role through strengthening the promotion and protection of human rights at home as it is about leadership within the Council in Geneva. Yet, the current election process does not have many in-built ways in which to encourage states to address their approach to implementation within their election campaign. This is perhaps a missed opportunity given the coveted nature of Council membership (Limon and Gujadhur have recently argued it is second only to the Security Council) and the growing institutional commitment of the Council to implementation.

The UK’s Recent Re-Election as Illustration of the Need for a Connection between Elections and Implementation Commitments

The recent re-election of the UK to the Council provides concrete illustration of why the election process needs to be tied more closely to the wider implementation project of the Council. The UK’s pledge focused on its international contribution to the Council including to:

• engage ‘across the whole human rights spectrum’;
• commit to the Council’s mandate to prevent human rights violations and support civil society;
• encourage ‘a fast international response to severe human rights violations and abuses, including in support of conflict prevention’;
• ‘address human rights situations and crises, either through support and dialogue or greater scrutiny;
• contribute ‘to the successful mainstreaming of human rights across the UN system’;
• ‘Help […] states through transition by supporting stability and reform efforts on the ground’;
• ‘Support […] a strong and independent UN human rights system’.

On re-election, Foreign Office Minister Baroness Anelay remarked that, ‘[w]e will continue to use our voice to help strengthen the Council, to support countries working to improve their human rights record and to hold to account nations that commit serious and systematic violations against their citizens as we did recently leading a strong resolution at a Special Session at the Human Rights Council to address the deplorable situation in Aleppo’.

Leading up to the election, the Universal Rights Group documented the strong contribution of the UK at the international level, noting that, ‘[a]n analysis of steps taken by the UK in fulfilment of its international level pledges shows that it maintains a high level of cooperation with Special Procedures, having completed 14 visits out of 17 visit requests, and having responded to 10 out of 15 communications. Regarding UPR, the UK’s own report was presented by a high-level delegation, and it submitted a detailed mid-term report on implementation. The UK also actively participates in the UPR reviews of other States (187 during the first cycle)’.

However, the pledge said very little about the UK’s plans to promote and protect human rights within the UK or on implementation specifically. This is surprising for two key reasons. First, in September, the UK delivered a statement at the Council on behalf of 40 states on the need for a focus on best practice and leadership on implementation within the Council. It advocated the development of a system to systematically evidence the ‘positive impact that our [the Council’s] work has had on the ground’ in order to show ‘real-world impact and therefore a sense of the art of the possible’. In its view, such a system ‘could ultimately serve as inspiration for others to follow-suit; encouraging a race to the top’. Second, the UK itself has a significant project on implementation ahead following the recent issuance of Concluding Observations by the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Racial Discrimination, the Committee on the Rights of the Child and the Human Rights Committee and further recommendations will be made by the Council itself during the forthcoming Universal Periodic Review of the UK.

The scale of the UK’s current implementation task – which also includes the implementation of judgments from European courts – is even more challenging due to the absence of a national implementation and follow-up mechanism (NIFM). In a report on implementation issued earlier this year, the OHCHR describes NIFMs as ‘a national public mechanism or structure that is mandated to coordinate and prepare reports to and engage with international and regional human rights mechanisms (including treaty bodies, the universal periodic review and special procedures), and to coordinate and track national follow-up and implementation of the treaty obligations and the recommendations emanating from these mechanisms’. It suggests that such national mechanisms are critical for the successful – and systematic – implementation of the recommendations of international bodies including the Human Rights Council at the national level in light of the ‘ever-growing, multiple and varied requirements’ from different international bodies.

In the absence of a NIFM in the UK, there is a risk that some recommendations will not be implemented at all. There is also the risk of conflicting and uncoordinated approaches particularly where recommendations involve issues that cut across departments. For example, the recent Concluding Observations on the Rights of the Child require engagement and coordination between a number of government departments such as the Ministries of Justice, Health and Education and central and devolved administrations. However, as of yet there is no mechanism to ensure coordination and no action plan on how implementation will be achieved. The risk of a conflicting approach also arises if one body does not have overall responsibility for oversight of implementation as many of the concluding observations deal with the same right, such as access to justice.

Had the requirement to establish a NIFM formed part of the election process, the re-election would have provided a further lever for the Council to require a commitment from the UK on implementation and the process by which it would be achieved. This would be in line with the leadership expectations of members of the Council and would ensure that a disconnect does not materialise between action in Geneva and national practice.

The Way Forward?

The example of the UK suggests that greater thought is needed into how to motivate candidate states to demonstrate existing best practice on implementation or to commit to developing best practice if elected as a key benchmark of leadership within the Council. There are many ways in which this might be achieved. One proposal might be for the General Assembly to require all states seeking election to the Council to publish pledges based on the UN guidance referred to above but with a clear statement on existing approaches to implementation and how these would be enhanced during the term at the Council. Where states do not already have a NIFM or it is not operating effectively, this would include a commitment to create or improve the NIFM during the membership period. This approach would replace the current voluntary system in which only 11 of the 16 candidates for the most recent election submitted pledges formally through the UN system.

In the absence (or in addition) to such a shift, the OHCHR, NHRIs and NGOs could give more visibility to candidate states that include implementation within their pledges and those that fail to submit any pledge or address implementation within their own state. States themselves could also show greater leadership in this area, particularly states such as the UK that are already advocating for greater focus on implementation within the Council. Noting that states vote for candidates based on a range of considerations not all of which are tied to the credentials of the candidate (such as reciprocity and regional endorsement), earlier this year a  group of 20 NGOs proposed a set of criteria that voting states should consider. One of these criteria was that states voting for members to the Council should take into account whether the candidate state has established ‘an effective’ NIFM. This could be expanded, as I suggest above, to whether they commit to establishing a NIFM as a model of best practice during their tenure.

What is clear is that if the Council is to develop effective approaches to implementation in the next decade, its members must demonstrate their commitment to leading the way in best practice not only through their engagement with other states on their human rights record but also at home. Embedding this requirement within the election process would be one way of ensuring that this happens.

Lorna McGregor is a Commissioner of the Equality and Human Rights Commission, which supports enhanced approaches to implementation such as national action plans and NIFMs.