WG on the mandates - Feb. 5th - EAD

OHCHR

WORKING GROUP ON THE MANDATES: 2ND SESSION

PALAIS DES NATIONS, ROOM XVII

5TH FEBRUARY 2007


The purpose of the meeting was to discuss about the complaint procedure on the basis of the GA Resolution 60/251, the ECOSOC Resolution 1503. The non-paper, prepared by the Facilitator Blaise Godet was sent to all delegations a week before.


The facilitator first invited all delegations to a general debate on the non-paper that serves as a working basis. The main elements of divergence were:

- the introduction of a preventive and early-warning role of the complaint procedure

- the confidentiality of the procedure

- the geographical distribution of the working groups’ members

- and the measures to be taken by the council in case a State would refuse to cooperate.

Belgium and Germany insisted on a procedure that should be victim-oriented and therefore include an alarm mechanism. Pakistan, Bangladesh, Cuba and others refused that proposition arguing that it was going beyond the competences of the Council. Cuba and Russia also refused the proposition of actions in case of non-compliance and suggested to eliminate completely the last part of the non-paper (point 10.a).


The facilitator intervened suggesting to look at the points 1 and 2 (objectives and scope) more in details.

As the notion of “emerging violations” was for many countries in opposition with “attested violation” he proposed to merely take the existing terminology of the English version were there is no reference to “existing” or “emerging” but to a “consistent patterns of gross and reliably violations”. He also broached the problem of the French translation of “systematic” which introduce meanings that don’t appear in the English version.

The main discussions turned around the meanings of the worlds “emergent”, “persistent” (the Hispanic countries insisted on the fact that it has not the same signification in Spanish). Spain wishes a note or brackets to specify the sense in the Spanish version.

The United States emphasized the problem that the Council would not be effective if it also considers all emerging situations. It will be overwhelmed with false complaints. To be efficient the procedure must not be used for everything.

China asked how we can determinate the level at which a situation becomes emerging.

Canada advanced the example of the Rwanda in 1994 to defend the utility of an early-warning mechanism but Cuba argued that it was irrelevant because it was the result of the incapacity of the States to intervene collectively and not of the lack of prevention.

India stressed that the Council had to be aware of its limits. The priority has to be given at the existing and attested violation. There are other mechanisms available for the individual cases.


We finally turned to the point 3 (Admissibility Criteria).

These are actually criteria of non-admissibility as every complaint is supposed admissible except if it presents one of the criteria listed.

Here, the main points were:

- the relevance of a reference to the UN Charter among admissibility criteria

- the use of a “politicised” complaint or a “politically motivated complaint”

- and the role of the national institutions.

The United States said that as the criteria were negative they should be introduced in the points 1 and 2. They also asked for more clarity in the definitions of the criteria.

Pakistan insisted many times on the use of the terms “politically motivation” of a complaint.

Canada came with a proposition to replace “manifestement politiques” with “manifestement non fondé”.

Russia was opposed at a reference to the National Human Rights Institutions but the Facilitator responded that this was a consideration of the efforts of many countries to improve the Human Rights. As the Paris criteria insist on the autonomy of these institutions they should be integrated in the mechanism as national institutions just as well as the judiciary institutions. It would be a sort of consecration of the national institutions.

Concerning the points c (creation of a unique entry point for all complaints) and d (follow up for rejected complaints), Egypt asked why the Council should follow up the rejected complaints. If the complaint was rejected it is the role of the complainant to ensure the follow up, the complainant must just be informed of the decision of the Council to reject his demand. The Facilitator answered that his view was that a complaint, even if it is not a “pattern of violation”, can indicate an existing violation and thus it doesn’t lose all its legitimacy. The complaint would then cess to exist in the complaint procedure but not in the more general mechanism.

The International Service of Human Rights said that they were not criteria but elements of the procedure and therefore should be part of the point 9 (involvement of the complaint and of the State concerned). In case of rejection, the complainant should just receive an advice on other possible choice and he would then take the decision himself. The Facilitator said that the goal of this proposition was to avoid excessive formalism. In a victim-oriented system, the Council should admit that a complaint not receivable for the Council, may concern another organ.


We finally ended the meeting without significant advance. The Facilitator therefore asked the delegations to be more concise and to look for more consensus at least on the English version, knowing that it will be possible to adjust the meanings in each language later on.