How does the UNHRC function?
The UNHRC was created by the United Nations General Assembly on 15 March 2006 by resolution 60/251. It celebrated 15 years in 2021. Resolutions of the UNHRC are LEGALLY NON-BINDING as these resolutions serve as ONLY Political Expressions authored & sponsored by member states. While the UN Charter professes EQUALITY of all Member Nations, big or small, the fact that the UNHRC is encouraging bloc resolutions of like-minded countries, seriously impacts weaker and less powerful nations. This is an aspect that the UN system must seriously address and look into. The EU nations tie its resolutions on human rights to trade pacts advantageous to them. This is abusing the human rights dictum to suit their trade goals. The manner that UNHRC has unfairly treated terrorist problem prevailing in Sri Lanka is also a case in point and requires a mechanism that Sri Lanka as a sovereign nation can appeal to.
Human Rights Council resolutions are ONLY POLITICAL EXPRESSIONSauthored & sponsored by MEMBER STATES.
WHATEVER THE CONTENTS UNHRC Resolutions are not legally binding
Resolutions are of 2 types
- Thematic Resolutions– covering freedom of expression, prohibition of torture, right to food, respect for human rights, terrorism, transitional justice etc.
- Country Resolutions(Item 4 existing human rights situation in a country / Item 10 technical assistance with UN & assistance of other organizations/states) Sponsor states follow tactic of converting resolutions under item 4 to item 10 (country-specific resolutions are negotiated and finalized with the agreement of the state concerned)
Note in Sri Lanka’s case – sponsor states used both item 4 and item 10
Thematic or Country-Specific Resolutions are further divided in terms of content & type of commitments
- Substantial Resolutionsaddress substance of the issue –encouraging states to take action, requesting OHCHR or Special Procedures to produce studies, granting mandate to Special Procedures
- Procedural Resolutionsestablish or renew a special procedure mandate (these resolutions can also feature substantial elements) – it resolution is thematic there are 2 resolutions – a substantial one presented annually or bi-annually and a procedural resolution extending mandate every 3 years.
Countries have suggested a gradual approach
- Side Event to gauge the states reaction
- Common declaration read out to draw Council’s attention to the subject
- Decision/Resolution calling for a panel to be held
- Adopting Procedural Resolution requesting a report from Special Rapporteurs or OHCHR
- On basis of report a substantial resolution is adopted at a subsequent session or a new special procedure is created.
Decisions are similar to Resolutions – but shorter and procedural in nature
(organizing a panel on a thematic issue for next session)
They are adopted following same procedure as resolutions but by consensus (code – A/HRC/DEC)
President’s Statements are consensual decisionsseeking solutions to special problems formally presented by HRC (Code – A/HRC/PRST/)
They are not voted on and not subject to open-ended informal consultations.
Statement by the President can counter a draft resolution whose content & formulation is considered unacceptable by certain states (ex: draft resolution on transparency of actions by OHCHR compromising a state’s independence) – Did Sri Lanka consider this option?
How are UNHRC Resolutions Structured?
- The Preamble
The Preamble sets out the motive to take action.
Reference is made recalling all previous resolutions.
Preambles are not numbered
- The Operative Clauses
Denote what actions HRC wishes to take or recommend to UN member states or measures for UN bodies to take.
Operative clauses are numbered –starting with a verb in the present indicative tense and ending with a semi-colon.
Text of resolution is followed by reference to session during which it was adopted and date of adoption. It also indicates if resolution was adopted without a vote (by consensus – as with the 2015 co-sponsorship/Sri Lanka)
If a vote is required, the text of the resolution is followed by the breakdown of votes.
Note: during the negotiation phase, draft paragraphs bear letters PP or OP indicating which part of the resolution they belong to.
- Sponsoring Resolution
The first version (draft) of a resolution is proposed by a single state or group of states (can be by HRC members or non-HRC members) – these are known as the Sponsor or Main Co-Sponsors (also called Core-Group)
There is a significant rise in transregional groups functioning as main co-sponsors (Core Group) of HRC Resolutions.
(How fair is this on weaker and smaller states when the principle of the UN is one vote however big or small a UN member state is)
Main Co-Sponsors (Core Group) during negotiations
They present the initial version & submit draft new wordings before deciding what they will compromise on.
The Core Group has a leader but speak with one voice when text of resolution is being negotiated with other states.
Negotiations follow a framework of informal consultations in adjoining rooms
Third-Party states (whether members of HRC or not) can be Resolution Co-Sponsors.
BEFORE TABLING RESOLUTION(before deadline calling for official submission of Resolution)
Initial co-sponsors are identified as they are listed at the head of the draft resolution
AFTER TABLING RESOLUTION(2 weeks after adoption of resolution – co-sponsors are not mentioned but only feature in the report on the session which submitted & adopted the resolution)
AFTER ADOPTION OF THE RESOLUTION– states can co-sponsor a resolution in the 2 weeks following its adoption. This is the most discrete form of co-sponsoring.
Co-sponsorship implies supporting the text (this is exactly why Sri Lankans were infuriated with the yahapalana government for co-sponsoring the 2015 Resolution and which is why Sri Lankans do not wish the present government to agree to any CONSENSUAL RESOLUTION which basically implies the same thing as co-sponsorship.
If Resolution is NOT ADOPTED BY CONSENSUS and a vote is necessary, the co-sponsors undertake to defend the text.
A state can support a resolution WITHOUT being one of its co-sponsors by voting YES or joining the consensus.
- Main Sponsor/Co-Sponsors or Core Group (HRC Member or Non-Members) create 1stdraft resolution
- Initial Co-Sponsors co-sign resolution before it is tabled (their names are mentioned on top of resolution)
- Other Co-Sponsors co-sign resolution AFTER it is TABLED
- Other Co-Sponsors co-sign resolution AFTER it is ADOPTED
- HRC Member states can express support for draft resolution& join consensus or vote ‘YES’ in the event a vote is required without acting as co-sponsors.
- HRC Member states that disassociates themselves from draft resolution express disagreement with the text without triggering a vote.In their statement, these states state the political undertakings in the resolution they do not wish to be associated with.
- HRC Member states can ABSTAIN– preferring not to take a stand on the draft resolution
- Other HRC Member states who do not support resolution vote NO.
- Negotiation Process
Are revisions by Main Co-Sponsors to proposals to alter text and add new paragraphs to make it acceptable to all HRC member states
Draft Resolution is passed back & forth during informal meeting among co-sponsors only.As a formality draft resolution must be subject to at least one informal consultation among co-sponsors.
There are also informal meetings for states which are not co-sponsors which are open to NGOs too.
Informal negotiations & text modifications take place BEFORE the RESOLUTION is TABLED (before deadline for officially submitting resolution expires)
The deadline for tabling resolution is generally 10 days before the end of the Session.
An extension to tabling deadline may be applied for by sponsoring state or main co-sponsors but requires consent of the Council.
The Resolution is then presented to the Council for approval
Once Resolution has been formally submitted no substantial changes can be made to the draft inspite of negotiations continuing after the text has been tabled.
It is still possible for states dissatisfied with the text o try & introduce modifications.
The Sponsor or Main Co-Sponsors/Core Group will present any changes they are willing to accept in order to get the final text adopted. This can be done via FORMAL WRITTEN STATEMENTSwhich have to be submitted 24hours before HRC meets to discuss resolution or ORALLY(Oral Revisions) from the floor immediately before resolution is submitted to the HRC for approval.
Generally, the co-sponsors have oral revisions circulated informally in writing.
The HRC Extranet publishes the list of Resolutions to be presented & ready to be adopted by HRC.
Formal adoption of a Resolution by HRC is a prerogative reserved EXCLUSIVELY for the 47 UNHRC Members.
States with HRC Observer Status can submit a draft resolution & initiate process of adoption by making a statement to the plenary session.
Observer states are NOT ENTITLED TO VOTE or to INTERVENE should problems arise in the context of the ADOPTION PROCEDURE (amendments, requests for a vote etc)
For Country Specific Resolutions, Observer States affected by the Resolution may take the floor.(Has Sri Lanka made use of this Option)
Observer States are permitted to intervene at the end of the sessiononce all draft resolutions under each agenda item have been decided.(Has Sri Lanka intervened & objected?)
Note: 2/3 of HRC Resolutions are adopted by Consensus (WITHOUT A VOTE)
Draft Resolutions for Adoption are taken by ascending order in agenda items.
PROCEDURE FOR ADOPTING A RESOLUTION
- Introduction & Presentation of the Draft Resolution by Main Sponsor(s)/ Core Group.Revisions may be proposed from the floor by the main sponsor or one of main sponsors (this is called ORAL REVISIONS). Changes in writing must be submitted 24 hours before adoption.
- Introduction of any written or oral amendments by Other States.
Ex: draft resolutions, draft amendments submitted in writing by other states lodged before the tabling deadline. This mechanism of written submission amendments is hardly used in HRC.
- Statements by the States concerned.
For Country-Specific Resolutions, the states concerned may make a statement in response to the draft resolution.
- New Co-Sponsors
Can be announced as additional co-sponsors
- General Comments (HRC Member States Only)
- May involve explanation of position (EOP) on Resolution or on any paragraph in the Resolution
- May introduce a proposed written amendment or proposed amendments from the floor. A Co-Sponsor CANNOT propose an amendment
- May request a VOTE ON ENTIRE RESOLUTION or on any paragraphs in Resolution
- State may announce its co-sponsorship or withdrawal from it.
- If sponsoring state(s) wish(es) to withdraw the Resolution this is the FINAL OPPORTUNITY to do so.
- Financial implications of the Resolution (Program budget)
HRC Secretariat provides information on budgetary implications of adopted resolutions.
- Explanations of votebefore the vote (EOV)
- A proposed amendment or proposed vote on one or more paragraphs of draft resolution – Member States declare whether they are FOR of AGAINST.
- Only HRC Members not intending to Vote ‘YES’ or DISSOACIATING FROM THE DRAFT RESOLUTION as a whole or from one or more paragraphs take the floor. Co-Sponsors of the draft CANNOT deliver an explanation of vote
- Vote or Adoption by Consensus
- On the entire text
- If main co-sponsors reject a proposed amendment, they ask for a vote on the amendment. HRC Members are free to vote on amendments although its choice is bound by political considerations.
- Observer states and other Observers may make general comments or explanations of position at the end of the adoption process (after all resolutions under every HRC agenda is over) – is it worth Sri Lanka suffering this much of humiliation as a sovereign country?
The HRC is obliged to give an account of its activities to all UN Member States by presenting an annual report to the GA.
The report covers resolutions adopted by HRC.
This itself can be used by Sri Lanka to highlight the bias and lies against Sri Lanka.
IMPLEMENTATION OF RESOLUTIONS
Resolutions have indirect & long-term repercussions as their primary purpose is to INDUCE LEGISLATIVE CHANGE AT NATIONAL LEVEL. (does Sri Lanka realize the dangers)
Country-specific resolutions allow international community to interfere in national issues
The Questionnaires regularly sent to nations who have had country-specific resolutions against them have bigger agendas in mind.
This is not a HRC instrument but is a means used by States during HRC debates. This allows like-minded states to express their aspirations or views on a particular question. They can also be signed and supported by non-HRC member states.
(This is an excellent option for Sri Lanka to use highlighting the bias against Sri Lanka)
HRC & Country-Specific Situations since 2011
4 Inquiry Committees were created for Libya, Syria, North Korea & Eritrea
6 Special Procedures were created for Cote Di’Ivoire, Iran, Belarus, Eritrea, Mali, Central African Republic
2 New Resolutions adopted for Yemen & Sri Lanka
There is a rising number of resolutions being adopted by the HRC annually, increase in joint declarations and greater involvement by transregional groups for new initiatives advantageous to them as well as increase in side events – how do all of these impact on small and vulnerable nations?
HRC Regional Groups
All UN Member States are unofficially divided into 5 Regional Groups
- African Group -54 member states
- Asia-Pacific Group -53 member states
- Eastern European Group -23 member states
- Latin American & Caribbean Group -33 member states
- Western European & Other Group – 30 member states (this group is not a geographical group as its members include all state of Western Europe (24 members plus Turkey, Canada, New Zealand, Australia, US & Israel)
Israel has been a Member of the Western European & Other Groups since 1 January 2014
Turkey however participates in both Western European & Other Groups as well as Asia Pacific Group – but for electoral and voting it is in the WEOG only
Japan is a member of Asia-Pacific Group but has WEOG Observer Status
European Union members are spread over 3 regional groups (showcasing the political influence they exert)
Main Roles of the Regional Groups
- Rotation or equitable distribution of functions (ex Presidency of HCR and GA) & seats
- Exchange of views / Coordination of substantive policies on different thematic issues
- Common front in negotiations & votes
- Facilitate exchange of information
Each Regional Group can have a coordinator to represent whole group and the position changes annually.
The Political Groups involved in the HRC
The Non-Aligned Movement (NAM)
Created in 1961. Comprises 120 Member States – comprise 70% of UN Membership
At the time of its creation the members opted not to be aligned to either Eastern or Western blocs.
The Organization of Islamic Cooperation (OIC)
Membership of 57 states.
OIC seeks to safeguard & protect interests of Muslims
The European Union (EU)
28 European States which operate as a single market and has developed a foreign policy to harmonize its power over non-EU states.
The League of Arab States
21 Members States
The African Union
53 Member states though Morocco is not a member
The Informal Groups
Informal Groups emerged in the HRC after 2011\
The Like-Minded Group (LMG)
LMG group comprises the Russian Federation, China, Cuba, Egypt, India, Pakistan, South Africa & Saudi Arabia
This group was active during the Commission on Human Rights (Pre-cursor to HRC) and reappeared in 2013.
LMG issues joint declarations & submits numerous written amendments on a number of resolutions.
Article 4 Group
Suggestion by Switzerland in 2011 to create a group of states from every region of the world
This Group meets regularly to move HRC discussions. It issues joint declarations
Group of Alpine States
This Group comprises Switzerland, Austria, Liechtenstein, Slovenia
It also issues joint declarations.
UNHRC consists of 47 Member States elected by secret ballot by the General AssemblyMembers based on the geographical distribution of the regional groups. They serve for a term of 3 years but will not be eligible for immediate re-election after 2 consecutive terms.
African states – 13
Asian states – 13
East European states – 6
Latin American & Caribbean states – 8
Western European & Others – 7
What is the strategy Sri Lanka has adopted? Ideally Sri Lanka should have continued to nurse ties with the NAM countries which comprise 70% of the UN/UNHRC membership and helped draft a Resolution of Closure.
12 years of no LTTE terror after suffering 30 years of terror with a collateral damage of 7721 lives while saving close to 300,000 is proportionally well worth the decision to militarily end 30 years of LTTE terrorism in 3 years by the GoSL while carrying out an humanitarian rescue mission and accepting close to 12,000 LTTE combatants who surrendered and offering a Presidential Pardon to 594 LTTE child soldiers declaring them to be victims of LTTE terror though they were trained killers.
All this was done not by UN, UNHRC or the international community but by the GOSL and the Sri Lankan Armed Forces.
Shenali D Waduge