The effectiveness of the United Nations human rights protection machinery.

Author:Gaer, Felice D.
 
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This panel was convened at 10:45 am, Friday, April 11, by its moderator, Kathryn Sikkink of the Kennedy School of Government, Harvard University, who introduced the panelists: Felice D. Gaer of the Jacob Blaustein Institute; Michael O'Flaherty of the Irish Centre for Human Rights; Ted Piccone of the Brookings Institution; and Beth Simmons of Harvard University. *

THE EFFECTIVENESS OF THE UNITED NATIONS HUMAN RIGHTS PROTECTION MACHINERY: THE UN HIGH COMMISSIONER FOR HUMAN RIGHTS

By Felice D. Gaer ([dagger])

The UN High Commissioner for Human Rights stands at the pinnacle of the United Nations human rights machinery. It is now 20 years since the establishment of this long-hoped-for post. Our recent publication, United Nations High Commissioner for Human Rights: Conscience for the World, (1) examined the achievements of the six persons who have held the office to date. The questions that seized us were simply: What makes a successful High Commissioner, and who makes a successful High Commissioner?

This raises the matter of what success is and what effectiveness is within the UN human rights machinery. To identify the goals against which to measure effectiveness, we examined the history of this post. Before General Assembly Resolution 48/141, which mandated the position of High Commissioner in 1993, advocates called for a leader who could look into individual complaints and country situations or report publicly on violations of human rights. They hoped for an independent official who could exercise good offices, conduct investigations, provide technical advice to countries, make appeals, and report publicly.

By 1993, however, there was a substantial number of human rights mechanisms, including special rapporteurs and treaty bodies, conducting some of this work. Proponents of the High Commissioner post now called for an official who could coordinate the mechanisms, give them strategic direction, integrate concerns about human rights throughout the UN system, and make the UN response to atrocities "early, efficient, effective and comprehensive." They wanted a High Commissioner who could exercise a self-activating mandate, without first requiring a political body to authorize examination of a country.

In calling for such a High Commissioner, human rights advocates shared a vision of a leader who could act to protect individuals from abuse, and in so doing change the world. This vision may have sounded like a fantasy to some, but to many, the proposal to create a High Commissioner sounded like a practical plan to breathe life into protecting oft-affirmed but inconsistently observed universal standards of human rights.

The key to early thinking about a High Commissioner for Human Rights was the view that the office-holder should be concerned about human rights universally and have a high degree of independence to develop strategies for responding to human rights violations--including the ability to speak out against human rights violations wherever they occurred--and to ensure protection of human rights throughout the UN system. These criteria remain at the center of current assessments of the achievements of the High Commissioners.

Resolution 48/141 mandated that the new High Commissioner for Human Rights "promote universal respect for and observance of all human rights" and be "the UN official with principal responsibility for UN human rights activities ... under the direction and authority of the Secretary General"; "promote and protect the effective enjoyment by all of all ... [human] rights"; "play an active role ... in preventing the continuation of human rights violations throughout the world ..."; "coordinate human rights promotion and protection activities throughout the UN system ..."; and "rationalize, adapt, strengthen and streamline the UN machinery in the field of human rights...."

This mandate dropped references to independence and put an outsized emphasis on coordination and on working within the UN system. While it maintained a focus on universality, it barely mentioned violations and did not call for accountability. Much hope lay in the resolution's instruction that the High Commissioner should conduct "a dialogue" with all states, and "play an active role." In this context, however, dialogue appeared as an alternative to compliance. The High Commissioner's effectiveness can also be judged against the expectations held by victims, human rights advocates, and supporters worldwide.

High Commissioners have to carry out and supervise many key activities, including developing standards and laws, and conducting and coordinating visits and reports by expert mechanisms. Many field offices of the Office of the High Commissioner for Human Rights (OHCHR) today provide on-the-spot assistance and sometimes protection. The OHCHR prepares summaries of information about each country in the world for the new Universal Periodic Review procedure.

The High Commissioner must also manage a substantial staff which has grown from about 100 persons in 1993 to over 1,000 today, with an expanded budget. There are now 58 OHCHR field and country presences.

By examining case studies, it became clear that leadership, credibility, and accountability are required for any High Commissioner for Human Rights to be effective. The High Commissioner must show independence, exercise a self-activating mandate, and defend universality of human rights. Strategic direction and coordination of the many existing mechanisms and programs can also help.

High Commissioners have been praised for speaking out, providing accurate information, and fighting against cruelty, all of which advance human rights observance on the ground. A key measure of leadership is whether the international mechanisms can work effectively to build the capacity of human rights defenders and protection systems at the national level.

Credibility is essential to the effectiveness of a High Commissioner and is linked to consistency, support of universality of rights, and effective fact-gathering. To be credible, the High Commissioner must address legitimacy gaps that arise in the UN's human rights work.

A role conflict is built into the post of High Commissioner who is a senior UN official yet also accountable to "we the peoples," according to chapter author Michael Ignatieff. (2) Accountability pulls the High Commissioner in two different directions--being accountable to the victims, and being accountable to the governments responsible for the abuses. The High Commissioner must be both a UN insider and an outsider at the same time--an almost impossible task.

We asked the authors of country studies what the High Commissioners have done to address and ameliorate human rights problems in the countries studied (Afghanistan, Burma, China, Colombia, North Korea, Sudan, and Russia). The answers were revealing, as the following examples show:

For China: "The High Commissioner could not ignore China, nor engage on China's terms." (3) A 2-pronged strategy raised human rights problems with the government and engaged in technical cooperation in the country. However, the OHCHR underestimated the political impediments of a restrictive environment and government defensiveness. Because of little political will, lack of an OHCHR presence inside China, the interference of the Foreign Ministry as a gatekeeper limiting access to others, and a clash of methodologies, results were limited. High Commissioner Mary Robinson visited China seven times, held meetings at the highest levels, raised individual cases, and promoted technical assistance. However, the programs were shut down as ineffective only a few years later. High Commissioner Louise Arbour told the press publicly at the end of her term that when it comes to China, "naming and shaming is a loser's game." Navi Pillay, the sixth high commissioner, has yet to travel there.

For Russia: The quest to open a human rights office presence in Russia led the High Commissioners to...

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