Você está na página 1de 28

This article was downloaded by: [University of Oxford]

On: 19 January 2011


Access details: Access Details: [subscription number 773573598]
Publisher Routledge
Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 3741 Mortimer Street, London W1T 3JH, UK

The International Journal of Human Rights

Publication details, including instructions for authors and subscription information:


http://www.informaworld.com/smpp/title~content=t713635869

A review of the sixty-first session of the commission on human rights

Nazila Ghaneaab; Angela Melchiorreab


a
University of London, Institute of Commonwealth Studies, b Centre for International Human Rights,
University of London,

To cite this Article Ghanea, Nazila and Melchiorre, Angela(2005) 'A review of the sixty-first session of the commission on

human rights', The International Journal of Human Rights, 9: 4, 507 534


To link to this Article: DOI: 10.1080/13642980500350004
URL: http://dx.doi.org/10.1080/13642980500350004

PLEASE SCROLL DOWN FOR ARTICLE


Full terms and conditions of use: http://www.informaworld.com/terms-and-conditions-of-access.pdf
This article may be used for research, teaching and private study purposes. Any substantial or
systematic reproduction, re-distribution, re-selling, loan or sub-licensing, systematic supply or
distribution in any form to anyone is expressly forbidden.
The publisher does not give any warranty express or implied or make any representation that the contents
will be complete or accurate or up to date. The accuracy of any instructions, formulae and drug doses
should be independently verified with primary sources. The publisher shall not be liable for any loss,
actions, claims, proceedings, demand or costs or damages whatsoever or howsoever caused arising directly
or indirectly in connection with or arising out of the use of this material.

The International Journal of Human Rights


Vol. 9, No. 4, 507 533, December 2005

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

A Review of the Sixty-First Session of the


Commission on Human Rights
NAZILA GHANEA AND ANGELA MELCHIORRE
University of London, Institute of Commonwealth Studies; Centre for International Human Rights

ABSTRACT This report seeks to analyse the main highlights of this years session of the United
Nations Commission on Human Rights. The Commission was set up in 1947 and is the UNs
principal human rights body. It is currently the subject of major reform proposals stemming
primarily from the UN Secretary-General and agreed upon, in general terms by member states at
the 14 16 September 2005 World Summit. The review below, focusing on the main country and
thematic issues discussed at the March April 2005 session, will be indicative of how badly and
in what ways reform of the Commission on Human Rights is required.

Background
The United Nations Commission on Human Rights (Commission) met for this years
annual session in Geneva from 14 March to 22 April 2005. This was its sixty-first session.
The Commission on Human Rights is an inter-governmental body made up of 53 states,
for which a third of the membership is voted on each year for three-year terms. These state
members can table draft resolutions and vote on resolutions and decisions. Non-member
states can make statements and participate in the negotiations and lobbying of resolutions
and decisions. Inter-governmental organisations (IGOs) and non-governmental
organisations (NGOs) with Economic and Social Council accreditation participate
through oral and written statements, as well as informally taking part in lobbying and
negotiations.
The Commission began its first week with a high-level segment of addresses by prominent guests, held over the first four days of the session. Issues that were raised included:
proposals on the reform of the Commission, trafficking and the situation in Darfur (which
will be amongst the issues discussed under the country situations item in section two of
this article), counter-terrorism (which will be amongst the issues falling within the thematic area that will be discussed in section three).
The Commission was guided by the work of the bureau, elected by members of the
Commission and composed of one representative for each regional group.1 The

Correspondence Address: Angela Melchiorre, Doctoral Candidate, University of London, Institute of Commonwealth Studies, Centre for International Human Rights, 28 Russell Square, University of London, London WC12
5DS, UK. Email: angela.melchiorre@sas.ac.uk
ISSN 1364-2987 Print=1744-053X Online=05=04050727 # 2005 Taylor & Francis
DOI: 10.1080=13642980500350004

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

508

N. Ghanea and A. Melchiorre

Chairperson of the Commission was Mr Makarim Wibisono (Indonesia), the three ViceChairs were Mr Hernan Escudero Martnez (Ecuador), Mr Mohamed Saleck Ould
Mohamed Lermine (Mauritania) and Mr Volodymyr Vassylenko (Ukraine). Ms Deirdre
Kent (Canada) was elected as Rapporteur. This session of the Commission adopted 86 resolutions, 16 decisions and 4 Chairmans statements. During the high-level segment, this
session of the Commission was addressed by over 94 senior diplomats many of them
Foreign Ministers or Human Rights Ministers.
This years session took place in an atmosphere charged with much uncertainty regarding the future of the Commission. As the United Nations High Commissioner for Human
Rights (High Commissioner) noted in her opening speech We are arguably in the midst of
the greatest reform initiative ever undertaken by our Organization.2 The Commission felt
under scrutiny due to a number of reform proposals flowing from the UN SecretaryGenerals General Assembly speech in September 2003. In that speech he resolved to
hold a comprehensive review of the Charters aspiration to provide collective security
for all at what he described as a decisive moment for the United Nations. Subsequently,
he appointed a High-level Panel on Threats, Challenges and Change with the role of
assessing current threats to international peace and security; to evaluate how our existing
policies and institutions have done in addressing those threats; and to make recommendations for strengthening the United Nations so that it can provide collective security
for all in the twenty-first century.3 Insofar as the Commission is concerned, the Panels
January 2004 report bemoaned the eroding credibility and professionalism of the Commission, its lack of demonstrated commitment to the promotion and protection of human
rights, its lack of credibility and double standards.4 Reform of the Commission was therefore deemed necessary. The report commented on membership of the Commission, its
composition, an advisory body for it, and an annual report by the United Nations Office
of the High Commissioner for Human Rights (OHCHR) to serve as a basis for a comprehensive discussion with the Commission.5
These proposals were followed up in the Secretary-Generals own In Larger Freedom:
Towards Development, Security and Human Rights for All report issued on 21 March
2005. There, the Secretary-General noted the fundamental importance of human rights
to security and development. He recognised the expansion of the work of the UN
human rights machinery with regard to protection, technical assistance and support for
national human rights institutions; appreciating, however, that technical assistance and
institution-building are of little or no value where the basic principle of protection is
being actively violated.6 His main comments regarding human rights focused on the
Commission. He noted these comments to be the most dramatic of my proposals.7 He
suggested that in order to take the cause of human rights as seriously as those of security
and development there is the need for member states to replace the Commission with a
standing Human Rights Council, which should either be a principal organ of the UN or
a subsidiary body of the General Assembly.8 Both changes would require a change in
the UN Charter, but in his view it would accord human rights a more authoritative
position.9 He noted that this Council should be a standing body, that its state membership
of 15 should be directly elected by the UN General Assembly by a two-thirds majority of
its members present and voting10 and that those elected to it should undertake to abide by
the highest human rights standards.11 This Council should serve, in his words, as a
chamber of peer review. Its main task would be to evaluate the fulfilment by all states
of all their human rights obligations.12

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

The Sixty-First Session of the Commission on Human Rights

509

The High Commissioner endorsed the Secretary-Generals concern that this Council
be able to deal with massive and gross violations of human rights. At the end of this
session of the Commission she stated her hope that this Councils wider backdrop of
peer review or universal scrutiny would reduce the dangers of selectivity and politicization when it comes to the Council raising concerns of instances of grave human
rights emergencies.13 A coalition of 13 NGOs at the Commission welcomed the compelling vision of the need for urgent reform of the human rights system and called for
the seizing of this opportunity.14 The High Commissioner expressed hope for the new
Human Rights Council to be refined, improved and heightened in stature15 compared
with the Commission. A Human Rights Council would offer a fresh start,16 Kofi
Annan stated. The review below will be indicative of how badly and in what ways
this fresh start is required.17

Country Situations
Concern of the UN High Commissioner for Human Rights
The Commission started considering human rights violations in particular countries by
adopting a resolution known as the 1235 procedure allowing it to do so in 1967.
This particular agenda item, however, has been energetically opposed by violating
states particularly over the past decade. A lesser hierarchy of complicity has gradually
been introduced under various other agenda items to allow violations in particular states
to be addressed without shaming them in quite the same way. On top of that, the
shaming effect is lessened further if the resolution is less condemnatory in tone and if it
is adopted through a vote rather than by the consensus of the whole Commission. All of
these creative options clearly serve not to deal resolutely with the protection of
human rights but with the protection of the honour of violating states. It is not surprising,
therefore, that the High Commissioner was highly critical of the incredible political energy
invested by states at the Commission to avoid criticism of their human rights record
through the 1235 procedure under agenda item 9.
The High Commissioner poignantly drew attention to this bizarre state of affairs at the
end of this session in stating:
There is something fundamentally wrong, and obscure, with a system in which the
decision as to whether or not a country situation is addressed under Item 9, Item 19
or Item 3, or not at all, is viewed either as a political triumph or a political defeat.
There is something fundamentally wrong with a system in which the question of
the violation of human rights and fundamental freedoms in any part of the world
is answered only by reference to four states. I put it to you that it is a discredit to
this Commission to view these decisions as political victories or losses. I say
this in full knowledge, and with all due respect for the fact that yours is an intergovernmental body.
This identification of these three agenda items will be used to provide the framework for
the analysis of country situations below.

510

N. Ghanea and A. Melchiorre

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

Item 9 Question of the Violation of Human Rights and Fundamental Freedoms


in any Part of the World
Only four resolutions were adopted this year under item 9, the specific agenda item for
condemning states regarding their human rights record. As the High Commissioner
pointed out in the statement given above, this makes a mockery of the whole 1235 Commission procedure and its mandate to protect human rights. Though veiled condemnations
of other countries records were adopted as resolutions under other items, escaping
censure under the agenda item 9 is celebrated around government capitals as a crude political victory. The fact that the Commission is failing to consider and examine countries
where there are allegations that a consistent pattern of gross violations of human rights
is occurring,18 or is only doing so under agenda items that suggest a lesser concern, is
indeed a damning indictment on its current standing. Despite this enormous political
sham, the list of the four countries that were the subject of resolutions adopted under
this agenda item suggest that smaller, less powerful countries, with gross human rights
records but without established political networks of countries poised to support them,
can still effectively trigger the 1235 procedure. This adoption of four resolutions, and
solely these four resolutions, however, is completely out of sync with the reality of a
much wider range of countries where it is self-evident that consistent patterns of gross violations of human rights are occurring, and hence that legitimately demand the censure of
the international community through this means.
As to the analysis of these particular four resolutions, Myanmar has been under Commission review since 1992.19 It therefore currently enjoys the unenviable distinction of
being the longest standing uninterrupted country mandate20 of the Commission. Interestingly, this resolution is also the only consensual one under item 9. The Special Rapporteur
on the situation of human rights in Myanmar continued to condemn the human rights situation of that country whilst attempting to trace promising measures. While noting the
slow progress in Myanmars evolution towards a democratic State with full provision
for the enjoyment of human rights, the Special Rapporteur hopes that it will continue in
a steady and irrevocable manner.21 The Secretary-General has a Special Envoy to facilitate national reconciliation and democratisation in Myanmar, Mr Razali Ismail who also
submitted a report to the Commission.22 Whilst Mr Ismail was last allowed a visit to
Myanmar in March 2004, Mr Pinheiro has been denied access since November 2003.
Both had therefore been denied the opportunity to carry out their mandates effectively
since the last Commission session. The extensive resolution on the Situation of human
rights in Myanmar, presented by the European Union (EU),23 included concern about
the ongoing systematic violation of human rights24 being suffered in Myanmar, including: the human rights situation concerning prisoners and particularly political prisoners,
the under-age recruitment of child soldiers, the harassment of opposition activists, restrictions on political parties, the extrajudicial killings, rape and sexual violence committed by
members of the armed forces, the continuing use of torture, and the practices of forced
relocation and forced labour. The resolution extended the mandate of the Special Rapporteur on the situation of human rights in Myanmar by a further year.
The Democratic Peoples Republic of Korea (DPRK) has only been the subject of the
Commissions 1235 procedure since the 2003 adoption of a resolution that had requested
the OHCHR to engage in a comprehensive dialogue with that country with the aim of
trying to establish technical cooperation. The requests of the OHCHR had not met with

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

The Sixty-First Session of the Commission on Human Rights

511

any responses,25 so a 2004 resolution had noted deep concern about systemic, widespread
and grave violations of human rights.26 That resolution created the mandate of a Special
Rapporteur on the Situation of human rights in the Democratic Peoples Republic of Korea,27
a mandate which was renewed for a further year at this session28 despite the fact that the government had neither accepted nor cooperated with the mandate in the past. In his report, the
Special Rapporteur noted a variety of discrepancies and transgressions several of an egregious nature in the implementation of human rights.29 The resolution on the Situation of
human rights in the Democratic Peoples Republic of Korea expressed deep concern about
continuing reports of systemic, widespread and grave violations of human rights30 including
torture, the absence of the rule of law, the extensive use of forced labour, severe restrictions on
the freedoms of thought, conscience, religion, opinion and expression, peaceful assembly and
association,31 trafficking of women and widespread infant malnutrition. This resolution was
introduced by the EU. The co-sponsors of the resolution believed the resolution to be warranted because the critical challenges posed by both the human rights and the humanitarian
situation in that country were giving cause for grave concern.32 The US delegation put
this in starker terms, in stating that the regime in the DPRK remained one of the worlds
worst human rights violators.33 Japan also spoke before the vote of the moral duty of the international community to voice its concerns. China, however, objected to what it called the using
of human rights issues to exert political pressure on developing countries and an attempt at
changing the countrys political and social system.34 Cuba announced it would oppose the
resolution and asked for a recorded vote on its adoption. China, Cuba, Egypt, Guinea, Indonesia, Malaysia, Russian Federation, Sudan and Zimbabwe voted against the resolution.
The Situation of human rights in Cuba was the subject of the report of the Personal
Representative of the High Commissioner35 and a further Commission resolution.36 The
Personal Representatives mandate has been running since its creation by the Commission
in 2002. However, Cuba does not acknowledge this mandate and has refused to respond to
all attempts by the Personal Representative to establish contact with them. Whilst being
encouraging of Cubas progress regarding economic, social and cultural rights and
especially the funding of education and health sectors, the Personal Representatives
report expressed concern about the disastrous effect of the embargo imposed by the US
on Cuba and noted remaining human rights concerns in the field of civil and political
rights and particularly the freedoms of expression and assembly. The Cuba resolution
was dramatically shorter than all of the other item 9 resolutions,37 merely inviting the Personal Representative to the report to the next Commission session on matters raised in previous Commission resolutions. The US and the EU spoke before the vote in favour of the
resolution and Cuba, China, Sudan, Russian Federation and Zimbabwe against. The US
introduced the resolution and explained that its purpose was to keep the situation under
consideration and extend the mandate of the Special Representative. They stated that
Cuba had failed to guarantee its own people the most basic human rights and it severely
punished dissent.38 The EU delegate pointed out that the language of the proposed resolution was neither dogmatic nor polemical. The aim of the EU was to encourage a transition to democratic pluralism, respect for human rights and a sustainable improvement in
the Cuban peoples standard of living.39 Those voting against the resolution were
generally the standard countries who vote against all country resolutions. Amongst
those voting for the resolution were Costa Rica, Guatemala, Mexico, Saudi Arabia and
Ukraine. The Cuban intervention was not mild in its accusations. It referred to the US
as the worlds worst violator of human rights, labelled the resolution a ludicrous

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

512

N. Ghanea and A. Melchiorre

scrap of paper and referred to those supporting the resolution as instilling in his government pity for the sad and subservient role played by the United States accomplices in the
European Union and the former socialist countries.40
The resolution on the Situation of human rights in Belarus, introduced by the US,
continued the Commissions concerns since the adoption of this resolution in 2003. This resolution expressed deep concern regarding enforced disappearances, summary executions,
torture, the lack of fairness in the parliamentary elections, human trafficking and the situation with regard to freedom of expression and association. The mandate of the Special
Rapporteur was extended for a further year.41 The Special Rapporteurs report noted that
the government had not cooperated with this mandate and highlighted the freedom of the
media and the independence of the judiciary as being the areas at most urgent need of progress. The Rapporteur also concluded in no uncertain terms that he believed that Belarus is
not yet a real dictatorship, but is very close to it. The regime is of an authoritarian nature. The
Head of State claims to have his legitimacy based on a direct link with the people and therefore does not recognize any constitutional, legal or institutional limitation. Within such a
system there is virtually no place for human rights.42
Item 19 Advisory Services and Technical Cooperation in the Field of Human Rights
One may be hard pressed to categorise the human rights situations particularly in terms
of current government complicity in violations of Sudan, Somalia, the Democratic
Republic of the Congo, Burundi, Sierra Leone, Cambodia and Nepal together. However,
this is precisely what the Commission did in deciding to deal with all of these human
rights situations in terms of Advisory services and technical assistance under item 19
rather than item 9s Question of the violation of human rights and fundamental freedoms
in any part of the world.
The resolution on the Situation of human rights in Sudan, presented by the African
Group, was mild in its condemnation of the government. In fact, the only explicit requests
on the government were to continue its efforts, investigate violations and end impunity for
crimes committed in Darfur,43 disarm the Janjaweed and stop supporting them,44
promote respect for international human rights and humanitarian law, improve security
around IDP camps, promote peaceful coexistence between the tribes in the Darfur and
improve the rule of law. It was one of the many resolutions that combined condemnation
of the government and other parties to a conflict regarding both international humanitarian
law and human rights law. Whilst the obligation of non-state parties to a conflict regarding
the former is well-established, it is legally more problematic within the framework of
human rights obligations. However, the complexity of conflicts and the multitude of
non-state perpetrators of violations mean that the Commission is becoming more and
more explicit in its condemnation of human rights violations by non-state actors. Pragmatically speaking, this is not problematic, unless it is used as a smokescreen by states for the
inevitability of the human rights violations committed by the state in order to counteract
such threats. In this resolution, calling upon all parties to the conflict to respect a far more
extensive and intrusive list of human rights violations45 than the Government of Sudan
itself is explicitly called to account for,46 is problematic precisely for this reason. The resolution decided to establish the mandate of a Special Rapporteur47 for one year to monitor
the human rights situation in the Sudan, including the Darfur region, replacing the mandate
of Independent Expert which had been created at the previous session.

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

The Sixty-First Session of the Commission on Human Rights

513

This amounts to a rather complex Commission history regarding Sudans human rights
record. From 1993 until 2003 there were ten years of Commission 1235 concern with the
situation of human rights in Sudan along with the mandate of a Special Rapporteur to
follow that record. In 2003 that resolution failed by a narrow margin of two votes.48 At
that session there were no resolutions or decisions on Sudan. Much of the reason for
the failure of the resolution was the concerted efforts by the African Group of countries
in the Commission. Their argument was that developments in Sudan meant that Sudan
should be dealt with under item 19s Advisory Services and not item 9. Since then, the
African Groups objection to any African country being dealt with under item 9 has intensified and this has had a profound impact on the effectiveness of Commission procedures
for the protection of human rights. In 2004, however, concern with the situation in Darfur
prompted a Chairmans decision on the situation of human rights in the Sudan.49 That
decision also included the appointment of an Independent Expert by the Chairperson of
the Commission to report on the situation. There has therefore been quite a haphazard
shift regarding the Commissions dealing with Sudan from resolution with Special Rapporteur of the Commission, to no resolution or mandate, to a Chairpersons decision
with an Independent Expert, to an Advisory Services mandate with a Special Rapporteur
of the Commission. These shifts cannot be explained by changes on the ground in Sudan
over the past two years regarding lesser and greater human rights violations.
Somalia, with only a very recent Transitional Federal Government established after well
over a decade of no government, was dealt with under the same agenda as Sudan by the
Commission. The resolution Assistance to Somalia in the field of human rights, presented
by Italy, noted with grave concern the fragile security situation and the worsening humanitarian situation. It welcomed the newly established Transitional Federal Institutions and
the progress in the Somali National Reconciliation Process.50 It called upon these institutions to rehabilitate basic social and economic services especially in order to support
child protection and IDPs, introduce an effective judicial system to deal with the cases
of sexual violence, rape, torture, violence and executions; and also the forced or compulsory recruitment of children for labour or use as child soldiers. This resolution, too, was
similar to the Sudanese one in its integration of concern with both violations of human
rights and humanitarian law,51 and its call upon all parties and all stakeholders to
support improvements in Somalia. The resolution extended the mandate of the Independent
Expert on the situation of human rights in Somalia, Mr Ghanim Alnajjar, for a further year.
The resolution on Technical cooperation and advisory services in the Democratic
Republic of the Congo (DRC) noted violations of human rights and international humanitarian law including sexual violence against women and children, attacks on human rights
defenders, armed violence against civilians and impunity for those responsible, massacres,
violations against IDPs and the recruitment of child soldiers. The resolution welcomed the
fact that the Independent Expert, Mr Titinga Frederic Pacere, had been allowed to visit the
DRC in August September 2004 and November 2004, and extended his mandate for a
further year.52 The African Group was the lead sponsor of the resolution, which explains
why the issue was dealt with under agenda item 19 instead of 9 and also why it was so
mildly worded. The Observer for the DRC went some way towards explaining the position
of the African countries in his intervention before the vote on this resolution:
his country, like the rest of the African Group, felt trapped by the Commission. On
the one hand, his Government must cooperate with the Commission because of the

514

N. Ghanea and A. Melchiorre

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

Commissions power and mandate, and on the other the Government was wary of
the Commission because of its selectivity, the fact that some of its past resolutions
under agenda item 9 had been highly politicized and had pointed the finger at socalled barbaric African countries, while turning a blind eye to other States that
were responsible for past and present violations. His Government did, however,
recognize the Commissions authority under agenda item 19. The African Group
had presented the draft resolution in a constructive spirit, and had discussed and
negotiated the text with all partners, particularly with the EU.53
Implicit in this statement is the fact that the African Group refuses to recognise the authority of the Commission with regard to item 9 and on principle believe that no African
country will ever merit that sanction.
The lead sponsors of the resolution on Burundi and Sierra Leone were similarly the
African Group. The themes of violations of both international humanitarian and human
rights law, the need to promote security in the midst of massacres and countering violence
continued in the resolution regarding Advisory services and technical assistance for
Burundi. The resolution was able to make reference to the findings of the visit of the international commission of inquiry for Burundi in May 2004 as well as that of the Independent
Expert, Mr Akich Okola, in October 2004. Work towards national reconciliation by the
Transitional Government was encouraged, whilst Burundi was also called upon to put
an end to impunity and end the sexual and other violence that continued against women
and children. The massacre committed against the civilian Banyamulenge refugee population at Gatumba on 13 August 2004 was strongly condemned.54 The Independent Expert
was asked to continue his mandate for a further year.55
The situation in Sierra Leone is comparable to the above in terms of the remaining
vulnerability of women and children to violations, the continued need to improve reconciliation and healing and respect of human rights and humanitarian law, and the need to
continue improvements in the justice system. However, the fact that the High Commissioner had noted progress in the field of civil and political rights in Sierra Leone,56 that
the Special Court for Sierra Leone continued to be active in bringing violators to
justice,57 and the active efforts of governmental, non-governmental and UN bodies to
improve the situation there, mark the situation out quite sharply from the above. The resolution Assistance to Sierra Leone in the field of human rights highlighted, in particular,
the situation of women and children, especially those that had been sexually abused and
gravely traumatised by the conflict.
The resolution on Technical cooperation and advisory services in Cambodia,
introduced by Japan,was in a similar vein. It was able to take note of the reports of the
Special Representative of the Secretary-General for human rights in Cambodia,
Mr Peter Leuprecht, as well as the assistance of the OHCHR to the government with
regard to human rights. The resolution was very much framed in cognisance and recognition of the fact that the tragic recent history of Cambodia requires special measures
to ensure the protection of human rights and non-return to the policies and practices of
the past.58 The resolution welcomed the agreement between the government and the
UN to establish the Extraordinary Chambers in the courts of Cambodia,59 the formation
of the new government in July 200460 and the improving human rights situation over
the past decade.61 However, it expressed concern about the continuation of some
human rights violations especially those related to the rule of law, the judiciary,

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

The Sixty-First Session of the Commission on Human Rights

515

human trafficking, violence against political and civil activists, impunity and
corruption.62
Technical cooperation and advisory services in Nepal drew attention to the atrocious
human rights violations occurring in Nepal, again against a background of armed conflict,
violations by both state and non-state forces and insecurity. Violations included unlawful
killings, all forms of sexual violence, forced displacement and disappearances, and attacks
against the physical integrity and safety of political leaders and party activists, human
rights defenders, journalists and others.63 Whilst drawing attention to the obligations of
the government, the resolution also expressed grave concern about the breaches of international humanitarian law committed by the Communist Party of Nepal (Maoist), and it
dedicated three of the operative paragraphs of the resolution particularly addressing violations committed by it, including sexual violence, violations of the right to life, recruitment
of child soldiers and displacement.64 Even though the concern with Nepal had been
elevated since last year from a Chairpersons statement to this sessions agenda item
19 resolution, it is questionable why it did not deserve scrutiny as an item 9 resolution.
The resolution, introduced by Switzerland, requested the High Commissioner to submit a
report on the activities of her Office with regard to Nepal to the next sessions of the
General Assembly and Commission.65
The Situation of human rights in Liberia 66 and Technical cooperation and advisory
services in the field of human rights in Chad 67 were both Commission decisions
adopted under agenda item 19 and had in common human rights concerns that arise out
of post-conflict and transitional situations. The human rights situations in both Liberia68
and Chad69 have Commission Independent Experts, from whom reports were received.
Both items were adopted without a vote and were retained on the Commissions agenda.
Item 3 Organisation of the Work of the Session
Under this agenda item, the Commission adopted Chairpersons Statements on the human
rights situations in Afghanistan, Colombia, Haiti and Western Sahara.
The human rights situation in Afghanistan was dealt with in a Commission resolution in
2003, and in a Chairpersons statement in 2004 and 2005. The 2003 resolution70 included
the decision to request that the Secretary General appoint an Independent Expert, however
an expert Mr Cherif Bessiouni was not appointed until April 2004. The 2004 Chairpersons statement Technical cooperation in the field of human rights in Afghanistan 71
therefore requested that this mandate be extended a further year. His first report was therefore to the General Assembly in October 2004 and his first Commission report was to this
years session. Nevertheless, the Chairpersons statement this year discontinued the
mandate, and instead requested that the Government of Afghanistan continue to work
with all the mandates and human rights procedures of the United Nations and tasked
the High Commissioner to expand its technical cooperation and advisory services to the
extent possible as well as report on the human rights situation there.
Question of detainees in the area of the United States naval base in Guantanamo was
the only proposed text to be rejected by a roll-call vote. Draft resolution L.94 of 14 April,
tabled by Cuba, requested the US Government to authorise an impartial and independent
fact-finding mission on the situation of the detainees by the relevant special procedures of
the Commission, and for the OHCHR to prepare a report on the situation of the detainees
for the next session. The revised version of the draft resolution L.94/Rev.172 was

516

N. Ghanea and A. Melchiorre

presented on 18 April. This was rejected on 21 April by a roll-call vote requested by the
US of 8 votes for and 22 against. Those voting for were the following: South Africa,
China, Cuba, Guatemala, Malaysia, Mexico, Sudan and Zimbabwe. Those states that
abstained included Brazil, Canada, Egypt, Russian Federation, Pakistan and Saudi Arabia.

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

Middle East
Past sessions of the Commission have witnessed bitter battles regarding the Middle East
conflict and its domination of all other proceedings. As noted in past reviews,73 this topic
has sometimes taken up around a third of the meeting time of the Commission for
example in the 2002 and 2003 sessions! This year, however, discussions around this
issue were a lot smoother. The change of leadership in the Palestinian Authority and optimism surrounding the commitment of both sides to work towards peace had a sharp impact
on restraint and caution in exchanges on the issue. The long-established resolutions continued to be adopted and reports by the relevant mandate holders presented, but in a much
more measured environment and tone. It is for this reason that this years review will just
make reference to the relevant resolutions and not discuss them further.
Resolutions included: Israeli practices affecting the human rights of the Palestinian
people in the occupied Palestinian territory, including East Jerusalem;74 Israeli settlements in the occupied Palestinian territory, including East Jerusalem, and the occupied
Syrian Golan75 and Situation in occupied Palestine.76 As for the draft resolution
Human rights situation of the Lebanese detainees in Israel 77 the Commission decided
to postpone its discussion to the 62nd session.
1503 Procedure
The 1503 procedure is the confidential mechanism of the Commission whereby it deals with
communications about human rights abuse in particular countries that appear to reveal a
consistent pattern of gross and reliably attested violations of human rights and fundamental
freedoms.78 The Commission closed meetings under the 1503 procedure reportedly discontinued consideration of the situation of human rights in Honduras, kept the situation of
human rights in Kyrgyzstan under review and both kept the situation of human rights in
Uzbekistan under review and appointed an independent expert to report to it on the matter.79
There were no consultations at this session of the Commission, no drafts even, for
potential resolutions on human rights situations in Chechnya, Iraq Turkmenistan, Iran
or Zimbabwe.
Thematic Issues
If country resolutions have followed a decreasing trend, thematic resolutions have been
growing in number and taking up much of the Commissions time and consideration.
This is not a novelty; on the contrary, a higher number of resolutions on thematic issues
has been a traditional characteristic of the Commission perhaps because of a lesser political
controversy they lead to and the lower risk of hurting sensitivities. Nonetheless, contentious
themes have always raised claims by delegations of double standards and selectivity, with
regional and ad hoc alliances being mustered in their adoption or opposition.

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

The Sixty-First Session of the Commission on Human Rights

517

Although the majority of thematic resolutions have usually been adopted by consensus,
a significant number remain that have to be voted upon.80 Interestingly enough, often these
resolutions have to be put to the vote as a consequence of political clashes or regional
antagonism rather than for their actual content. In a few cases the vote has also been
requested as a reaffirmation of a particular stand on the issue, singling out a specific
country or region and its particular interests.
Having said that, it is also true that during this session more often than in the past states
have demonstrated that when they have the political will they can make a difference,81
and that they can deal efficiently even with contentious thematic issues. Whether or not
this was a result of the pressure upon them deriving from discussions surrounding
reform proposals for the Commission remains to be seen. What is clear though is that
alongside some recurrent failures and fruitless discussions, this session saw important
improvements and some successes.
In general the final goal for thematic issues was consensus, as demonstrated by the
agreement reached on issues that were perceived as global and important by everyone.
Nonetheless, a pattern of regional characterisation, group alliances and oppositions, and
solitary objection still persisted on many matters.
New Thematic Resolutions
A preliminary indication of discussion or voting patterns could be seen in the case of this
years new thematic resolutions. During the 61st session of the Commission five new thematic resolutions were introduced: Human rights and arbitrary deprivation of nationality;82 Right to the truth;83 Human rights and transitional justice;84 Promoting the rights
to peaceful assembly and association 85 and Human rights and transnational corporations
and other business enterprises.86 The first three were adopted by consensus and the last
two were passed after a voting procedure. The consensual ones are certainly positive
developments as they introduced new consideration and protection for the rights of
victims.
In the resolution on Human rights and arbitrary deprivation of nationality, introduced
by the Russian Federation, the Commission reaffirmed that the right to a nationality of
every human person is a fundamental human right; recognised that arbitrary deprivation
of nationality on racial, national, ethnic, religious, political or gender grounds is a violation of human rights and fundamental freedoms and called upon all states to refrain from
taking discriminatory measures and from enacting or maintaining legislation that would
arbitrarily deprive persons of their nationality on grounds of race, colour, gender, religion,
political opinion or national or ethnic origin, especially if such measures and legislation
render a person stateless.87
The Argentinean text on the Right to the truth, in its turn, recognised the importance of
respecting and ensuring the right to the truth so as to contribute to ending impunity and to
promote and protect human rights, and welcomed the establishment in several States of
specific judicial mechanisms, as well as other non-judicial mechanisms such as truth and
reconciliation commissions that complement the justice system, to investigate violations
of human rights and violations of international humanitarian law.88
Lastly, in the resolution on Human rights and transitional justice, presented by Switzerland, the Commission called upon the international community and regional organizations to assist countries in the context of transitional justice to ensure the promotion

518

N. Ghanea and A. Melchiorre

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

and protection of international human rights and requested the OHCHR to enhance its
leading role in assisting States to develop and implement transitional justice mechanisms
from a human rights perspective.89
The non-consensual texts, instead, revealed some typical trends of the Commission. The
resolution on Promoting the rights to peaceful assembly and association, introduced by
the US, called upon member states
to respect and fully protect the rights to assemble peacefully and associate freely of
all individuals, including those espousing minority or dissenting views or beliefs,
and to take all necessary measures to ensure that any restrictions on the free exercise
of the rights to freedom of peaceful assembly and of association were in accordance
with applicable international law, including the International Covenant on Civil and
Political Rights.90
The draft as a whole was put to a vote at the request of Cuba, after amendments aimed at
making the exercise of such rights conditional were rejected.91 In this case, the voting
debate focused on the specific content of the draft and on states obligations under international law, but it is true that politically driven comments were also made in the framework of a long-standing game of bilateral relationships in order to cast some doubts about
the logical coherence of the sponsors argument.92
The question of Human rights and transnational corporations and other business enterprises, which last year was considered in a decision, this year was dealt with in a resolution
requesting the Secretary-General to appoint a Special Representative for an initial period
of two years. Among other tasks, the Special Representative was given the mandate to
identify and clarify standards of corporate responsibility and accountability for transnational corporations (TNCs) and other business enterprises with regard to human rights
and to elaborate on the role of states in effectively regulating and adjudicating the role
of all such enterprise.93 The resolution a cross-regional draft was voted upon at the
request of the US who, undoubtedly influenced by their tradition and practice on the
matter, objected that the sponsors failed to make it clear that the presentation of the
draft was not intended as an attempt to impose norms or codes of conduct on transnational
corporations.94 The US had also wished to see a draft reflecting a more positive portray of
TNCs and their responsibilities as well as a more defined role for states.
These two cases exemplify two recurrent trends that have characterised the Commission
for many years: firstly, the politically driven juxtaposition of projects introduced by the US
on the one hand and Cuba (with some occasional or frequent allies95) on the other; and,
secondly, the steady and continuous reaffirmation by the US of their peculiar interests
and position on the world scene. As we shall see with other examples, these two elements
are among those at the core of the Commissions decision-making process and such politicisation and exceptionalism will be very difficult to eliminate, even in the framework of
any proposed reform.
Racism, Racial Discrimination, Xenophobia and All Forms of Discrimination
More widespread and quite typical examples of regional opposition in the general debate
and adoption of resolutions were to be found under the agenda item dedicated to racism
and other forms of discrimination.

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

The Sixty-First Session of the Commission on Human Rights

519

On this topic the Commission heard presentations of reports from the High
Commissioner96 and a series of representatives and special procedures such as the
Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia
and related intolerance,97 the Chairperson of the Working Group of Experts on People
of African Descent (Mr Peter Lesa Kasanda),98 the Chairperson of the Intergovernmental
Working Group on the Effective Implementation of the Durban Declaration and
Programme of Action (Mr. Juan Martabit).99 All of them underlined the failure of states
to implement their obligations and warned against the outstanding multi-faceted difficulties in eliminating racism and discrimination. Most importantly, they all also seemed to
agree on the continued importance of working in cooperation and by consensus.
Despite this positive encouragement, the issue of racism and discrimination remained
highly controversial. The general debate offered the occasion to various regional groups
to re-state their firmly contrasting positions. The Arab Group100 and the Organisation of
the Islamic Conference (OIC)101 highlighted how some measures taken by Western
countries in the fight against terrorism could amount to racism and discrimination
against Muslims and Arabs and how Islamophobia had been politically tolerated, if not
legitimated, in many states; Cuba insisted in requesting a proper analysis of issues of
racism and discrimination in rich countries of the Western Hemisphere; the African
Group asserted how racism and the legacy of slavery, colonialism and apartheid had
left Africa plagued by poverty and underdevelopment; the Western Group seemed concerned, amongst other issues, about how racism could be exacerbated by sexual identity
and sexual orientation, and insisted that Islamophobia, Anti-Semitism and Christianophobia should be dealt with on an equal footing.102 Much of the substance of these observations has been the same for at least the last four years and it appeared immediately
clear that little had been achieved in moving away from politically, historically, economically, culturally or socially motivated allegations to focus on the substance of the problems. Consensus was therefore hard to strike, as testified by the adoption by vote of
all three resolutions under this agenda item.
Similar to the past four years, the resolution on Combating defamation of religions as a
means to promote human rights, social harmony and religious and cultural diversity 103
demonstrated once again the irreconcilable interpretations of the issue by Islamic
countries on the one hand and the rest of the world, especially the Western Group, on
the other. The text, introduced by Pakistan on behalf of the OIC, expressed deep
concern at negative stereotyping of religions and manifestations of intolerance and discrimination in matters of religion or belief still in evidence in some regions of the
world. More importantly, it noted with deep concern the intensification of the campaign
of defamation of religions, and the ethnic and religious profiling of Muslim minorities, in
the aftermath of the tragic events of 11 September 2001 and expressed deep concern that
Islam was frequently and wrongly associated with human rights violations and terrorism.104 Long-standing concerns about the conceptual framework of the draft, its terminology and the lack of balance with regard to all religions were cited by the EU, the US,
Canada, a number of Latin American countries and India.105
On a similar topic, it is interesting to note how the resolution on Elimination of all forms
of intolerance and of discrimination based on religion or belief 106 was, instead, adopted
by the Commission without a vote. This text was introduced by the EU and supported by
77 countries from various regions of the world, providing for a stunning unity and a sharp
contrast with the previous one. The text is clearly more general as it condemns all forms

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

520

N. Ghanea and A. Melchiorre

of intolerance and of discrimination based on religion or belief and urges States to ensure
that their constitutional and legislative systems provided adequate and effective guarantees of freedom of thought, conscience, religion and belief to all without distinction.107
What makes it quite unique in its content and probably more easily consensual is that
the co-sponsors agreed on maintaining the resolution topical and up-dated by establishing
a more direct link between the draft and the findings of the Special Rapporteur on Freedom
of Religion or Belief.108 Perhaps it is indeed this complementarity between resolutions and
reports that is promising of consensual and successful outcomes, especially when the
special procedures are highly regarded experts appointed with the greatest support of all
regional groups. The same, for example, cannot be said for the resolution on racism and
the inputs of the Intergovernmental Working Group on the effective implementation of
the Durban Declaration and Programme of Action.
In the resolution entitled The World Conference against Racism, Racial Discrimination,
Xenophobia and Related Intolerance and the comprehensive implementation of and
follow-up to the Durban Declaration and Programme of Action 109 the Commission
expressed profound concern about and condemnation of all forms of racism and racial discrimination. It also took note of the report of the High Commissioner on the possibility of
the development of a racial equality index as proposed by the group of independent
eminent experts110 and requested the High Commissioner to expedite the consultative
process in 2005 in this regard and to submit to the Commission at its sixty-second
session a draft basic document on the proposed index.111 Furthermore, it requested the
Office of the High Commissioner, in consultation with member states, to convene a
high-level seminar during the first five days of the fourth session of the Intergovernmental
Working Group to discuss racism and the internet as well as options for the format of
complementary standards to existing instruments112 and decided to extend the mandate
of the Special Rapporteur on Racism, Racial Discrimination, Xenophobia and Related
Intolerance for a period of three years.113
Since 2001, year of the Durban Conference, this resolution has never been consensual
and the work or recommendations of the Intergovernmental Working Group have often
been questioned. This year was no different and when the EU proposed substantial amendments during the adoption procedure, the African Group as main sponsor of the draft
moved for a no-action motion114 on these amendments, supported by Cuba. The decision
to take no action was approved with a vote of 27 in favour, 23 against, with 3 abstentions.
Subsequently, the resolution as a whole was adopted with 38 in favour, 1 against (US) and
14 abstentions. At the heart of the contention was the EUs objection to the proposal of an
additional mechanism for follow-up in the form of a high-level seminar, as well as to the
proposals concerning complementary standards and the racial equality index. The African
Group, in its turn, expressed its concern at what it perceived as an attempt by the EU to
renegotiate the outcomes of the Durban Conference.115 In the end the EU decided to
abstain on the resolution as a whole given the importance of the issue, but it is true that
with such firm opposition it is difficult to predict a sudden change in negotiations, particularly when the controversy concerns the work of a group that by its own nature is made of
member states.
The resolution on the Inadmissibility of certain practices that contribute to fuelling contemporary forms of racism, racial discrimination, xenophobia and related intolerance,116
presented by the Russian Federation, was put to a vote at the request of the US who
objected to the fact that the draft did not distinguish between acts and intentions protected

The Sixty-First Session of the Commission on Human Rights

521

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

by freedom of expression and those that incited violence.117 The text was adopted by a
recorded vote of 46 in favour, none against and 4 abstentions (the US in the end abstained
together with Australia, Canada and Japan, while Eritrea, Mauritania and the Republic of
Korea did not vote). What is interesting to note is that this year the EU supported the text
as opposed to last year when it voted against it. This was undoubtedly due to the fact that
amendments were taken on board as to avoid selective focus and deal with the issue in a
more inclusive manner.
Issues of Human Rights and Sexuality
Other issues that are traditionally considered contentious due to different cultural and
regional approaches are those concerning sexuality, be it references to sexual orientation,
HIV/AIDS, sexual and reproductive rights or even gender violence.
Interestingly, at the 61st session many of the relevant drafts on these points proved more
controversial than in previous years, indicating an increasing worrisome trend towards
quasi-institutionalised repetition of the same well-known positions. On the one hand
the OIC defended their stand against certain definitions and practices regarding gender
and sexual issues and human rights; on the other the Western Group albeit this time
split on some particular points tried to push for the inclusion of specific language reflecting their interpretation of those matters.
Here again, it was notable that when the discussion concerned global issues, everyone
was ready to try and work as much as possible for a consensual text, whereas when the
issues at stake were clearly indicative of traditions, cultural attitudes and regional
approaches, decisions were taken by a vote. While one could wonder for how long such
positions and tactics could last, it is encouraging to see that in a few cases efforts were
made nonetheless to keep consensus where it already existed and not to invalidate previous
achievements.
This session was considered by many a test for the fate of the resolution on Human rights
and sexual orientation. Presented by Brazil for the first time in 2003, the project met fierce
resistance118 and through procedural motions was postponed for consideration at both the
59th and the 60th session of the Commission. This years session saw the failure of this
issue to even reach the draft stage. Nonetheless, it is worth noting a statement delivered
by New Zealand on behalf of 32 countries119 regretting that the Commission was still
not ready to address this issue. In front of various reports by the Commissions special procedures120 and recommendations by the human rights treaty bodies121 highlighting sexual
orientation as a ground for violation of human rights, it is disconcerting that the Commission has done so little so far. As New Zealands Ambassador rightly pointed out to remain
silent is to condone some of the worst forms of discrimination.122
In the same statement those countries supported the Nordic initiative on Extra-judicial,
Summary and Arbitrary Executions 123 that established that killing individuals because of
their sexual orientation is a human rights violation.124 If it is true that the mention of sexual
orientation in this resolution has been seen as a step forward in the discussion since its
inclusion in 2002, it is also true that the paragraph this year lost much of the previous
support and, despite the fact that it was quite similar to last years version, was retained
only with a very narrow margin (20/25/7 as opposed to last years 30/7/14).125 As on
previous occasions, the vote was requested by the OIC who disagreed with the list of
grounds for discrimination and categories of victims included in that paragraph. In their

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

522

N. Ghanea and A. Melchiorre

opinion, that list was contentious, was not exclusive and was non-exhaustive. The
co-sponsors continued to expand that list based on their own selective interpretation
and without developing consensus whereas the paragraph should call upon States to
investigate promptly and thoroughly all killings, without mentioning any list or categorisations of victims.126 In response, the delegate of Finland explained that to have any
real meaning the list must be explicit in indicating the persons who were particularly vulnerable to such killings and that the co-sponsors had even wished to add gender identity
but gave up in the end in an attempt to reach consensus.127 While there is much logic in
both points of view, it is undeniable that behind these arguments lie deeper problems of
cultural and country-specific sensitivities that go beyond just sexual orientation (killings
committed in the name of honour to mention only one) and make consensus still problematic. At the same time it is interesting to note that some of the countries who did not align
to the statement on sexual orientation supported this paragraph when it was put to a vote.
This is a clear indication of the various levels at which the issue can be approached and
gives a signal as to how far we are at or we could go in the discussion: these countries
in fact do not shy away from sexual orientation when this is pointed out as a ground for
discrimination, although they are not ready yet to use the term to affirm a life-style that
would have concrete implication in the implementation of certain rights.
Also on the topic of sexual issues/orientation, it is worth noting that for the first time
traditional consensus on both the text on Elimination of violence against women 128
(introduced by Canada) and the draft on The protection of human rights in the
context of HIV/AIDS 129 (presented by Poland) risked being broken because of references to the Guidelines on HIV/AIDS and Human Rights.130 The matter of contention
was the commentary contained therein which included a number of concepts such as sex
between men, the repeal of sodomy laws, same-sex marriage and decriminalisation of
sex work that the OIC could not accept.131 The OIC was not alone in this occasion. The
US, too, rejected this reference to the Guidelines as they perceived it as an attempt to
incorporate in Commission texts dubious references to documents which lacked wide
acceptance.132 Moreover, in response to Canadas argument that reference to the Guidelines had been made in previous resolutions without any objection, the US added that
the attempt to bolster acceptance of those radical principles appeared to have intensified, since previous resolutions had merely invited states to consider the guidelines.133
This time, though, the issue of HIV/AIDS was too global and important for everyone
and, to put it in the words of the Cuban delegate, being fundamentalist in protecting
certain rights did not help anyone. The best way to protect those affected by HIV/
AIDS was to do so by consensus.134 Therefore, after last-minute lengthy discussions,
agreement was reached and both resolutions recalled and made operational reference
to the Guidelines as summarised (or as included in the summary) in paragraph 12 of
document E/CN.4/1997/37.135
Continuing the same overarching theme of sexuality, concern was expressed also on the
terms sexual and reproductive rights. An earlier draft of the resolution on the Elimination
of violence against women attempted to reflect the considerations expressed in the Special
Rapporteurs Report on how violence against women is both a cause and a consequence of
HIV/AIDS.136 Still, the inclusion of language aiming to promote and protect womens
and girls human rights, including sexual and reproductive rights, in the context of
HIV/AIDS was contested, especially by the OIC member states. However, in view of
the importance of the issue and the reference to the recommendations of the Special

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

The Sixty-First Session of the Commission on Human Rights

523

Rapporteur a compromise was eventually found and the terms were replaced by reproductive rights and sexual health.137
On the same issue, it is also worth noting here that proposals by New Zealand and
Switzerland to adopt a rights-based approach to sexual and reproductive health in the resolution on The right of everyone to the enjoyment of the highest attainable standard of
physical and mental health 138 were not taken on board and the text instead referred to
sexual and reproductive health throughout.
The fact that a compromise was found on some critical paragraphs and that the text as a
whole was adopted without a vote did not prevent, however, a recorded vote being
required on other issues in the resolution on the Elimination of violence against women.
In the draft, the Commission
strongly condemned physical, sexual and psychological violence occurring in the
family, which encompassed, but was not limited to, battering, sexual abuse of
women and girls in the household, dowry-related violence, marital rape, female
infanticide, female genital mutilation, crimes committed against women and girls
in the name of honour, crimes committed in the name of passion, traditional practices harmful to women and girls, incest, early and forced marriages, non-spousal
violence and violence related to commercial sexual exploitation as well as economic
exploitation.139
The OIC had requested an amendment to replace the term marital rape by the term domestic sexual violence as this was a broad concept that encompassed marital rape, incest and
other forms of sexual violence not amounting to rape.140 This proved unacceptable to
Canada and the co-sponsors given that the term domestic violence was intentionally
broad and missed the intended target of the paragraph, which focused on acts of sexual violence perpetrated by husbands against their wives.141 The amendment was put to a vote and
rejected (14/25/13). In terms of blocks or groupings during the voting procedure, it is interesting to note that in addition to the OIC states, China, Eritrea, Ethiopia and Zimbabwe voted
in favour of the amendment, whereas countries such as India, Japan and the Russian Federation abstained. It is not clear therefore whether the vote was indicative of internal problems
with the content of the paragraph or reflective of external strategic alliances.
Economic, Social and Cultural Rights
This is another traditional area of much discussion and contention. During the general
debate, all speakers underlined the universality, interdependence and indivisibility of all
human rights, the need to consider economic, social and cultural rights on an equal
footing with civil and political rights, and the necessity to carry out a progress analysis
of the realisation of those rights for the achievement of the Millennium Development
Goals.142 Despite these common elements, disagreement persisted as to the methods
and timing for realising such rights.
It is perhaps indicative of the dilemmas in the current discussion that, under this agenda
item, 8 resolutions out of 12 were adopted by a recorded vote. What is even more interesting is that 4 of them were objected to by the US, who clearly confirmed their difficulty
in treating economic social and cultural rights equally with civil and political rights. In two
occasions they were the only state to vote against the drafts.

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

524

N. Ghanea and A. Melchiorre

Since 2003, when the idea was first introduced, the main contention in the resolution on
the Realisation in all countries of economic social and cultural rights 143 has been the
reference to an Optional Protocol to the International Covenant on Economic, Social
and Cultural Rights (ICESCR) that would establish an individual complaint mechanism.
The sessions of the Working Group established with the view to consider options regarding the elaboration of such an Optional Protocol have been attended by states with different levels of engagement and expectations. This year, in particular, the Working Group
received the support of the High Commissioner who expressed the view that this represented a major contribution to the fundamental role played by the Commission in
setting standards and clarifying content of human rights.144 Notwithstanding the High
Commissioners affirmation that the justiciability of these rights is increasingly finding
its place in national constitutions and international and national jurisprudence, some
states remain to be convinced about the necessity of an Optional Protocol, as demonstrated
by the discussions during the voting procedure.
While almost all member states of the Commission supported, to various extents, the
report of the Working Group, Australia and the US objected to the idea of justiciable
economic, social and cultural rights. The former, despite being party to the ICESCR,
had reservations on the idea of an Optional Protocol because the rights contained in the
Covenant were phrased in a broad manner and did not provide information on how
states could be held accountable.145 The latter was concerned that the Optional Protocol
would attempt to create legal entitlements to promote the justiciability of economic,
social and cultural rights, thereby pushing all countries to take the same approach to
those rights, when in fact their realisation is progressive by definition.146 Both countries
(together with Saudi Arabia) abstained during the vote, inducing many to doubt about
the real weight of their obstruction and the impact this has on the significance of the resolution and of the Working Group. Unquestionably, some progress has been made and the
opposition to the Optional Protocol is weakening.147 It is legitimate to affirm, therefore,
that their objections are not proving persuasive.
A similar doubt could be cast on the resolutions on the Right to food 148 and on the Right
of everyone to the enjoyment of the highest attainable standard of physical and mental
health. The most important aspect of these resolutions is that the texts tried to reflect as
much as possible some recommendations of the related monitoring mechanisms. The
draft on the right to health, for example, was mainly characterised by its reference to
mental health, in keeping with the report of the Special Rapporteur devoted this year to
persons with mental disabilities.149 Also the draft on the right to food mirrored the concerns expressed by the Special Rapporteur, especially with regard to widespread hunger
and loss of livelihoods caused by natural disasters and the deliberate use of food and
water as an instrument of political or economic pressure.150 Despite efforts to work in
synergy with the special procedures, it is disappointing that the adoption debate paid
little attention to the substance of the texts which contained some new and progressive
elements. The whole vote was more a matter of principled opposition and it was once
again requested by the US. In fact, they were the only state to vote against the resolutions
on the basis that they could not accept the language referring to the ICESCR since they
were not party to it; that while the progressive realisation of economic, social and cultural
rights required government action, those rights were not an immediate entitlement to a
citizen, and lastly but importantly that they could not support the work of the Special
Rapporteurs who in their opinion had gone beyond their mandates.151

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

The Sixty-First Session of the Commission on Human Rights

525

The same considerations on the ICESCR and on progressive realisation of economic,


social and cultural rights were voiced during the adoption of the resolution on Access to
medication in the context of pandemics such as HIV/AIDS, tuberculosis and malaria 152
when the US proposed some amendments to the first two preambular paragraphs. As in
previous occasions, the changes were rejected and the US remained once again alone in
their objection.153
The repeated situation in which the US have put themselves in the past years with regard
to economic, social and cultural rights on the one hand weakens the strength and significance of those resolutions, hindering effective progress, but on the other reinforces the
views of those who see the worlds superpower distancing and isolating itself from the
rest of the world, making one wonder for how long such a situation could be sustained.
New Mandates and Standard Setting
The most notable advances of this years session occurred with regard to the establishment
of new special procedures and in the area of standard setting, proving how important these
aspects of the Commission are and what an asset they represent for the future. Interestingly, these initiatives were introduced by relatively small but very determined countries
and showed a very recent trend whereby new actors are taking the place of traditional
players in the promotion and protection of human rights in a way that goes beyond
political tactics and alliances. Furthermore, these successes demonstrate that the SubCommission on Promotion and Protection of Human Rights (Sub-Commission) can still
offer an invaluable contribution to the work of the Commission with its studies and recommendations. Last but not least, these examples bear witness to the role that NGOs
can play in enriching and advancing the human rights agenda.
After a few years of discussion, the Commission was finally able to adopt without a vote
a decision on Discrimination based on work and descent 154 according to which it
approved the decision of the Sub-Commission to appoint Mr Yozo Yokota and
Ms Chin-Sung Chung as Special Rapporteurs with the task of preparing a comprehensive
study on the topic. Initially formulated as an attempt to condemn the caste system in India,
the draft has constantly been opposed and only after having been disconnected from the
particular situation in that country and from racism and framed instead as generalised discrimination has it gained the approval of all members of the Commission. This certainly
owes something to the change of government in India and to the pressure created by the
Commissions special procedures, its subsidiary body the Sub-Commission and UN
Treaty Bodies. Therefore, it is undoubtedly a very good example on how synergy
among human rights mechanisms can create breakthroughs and changes beyond states
resistance.
The resolution on Rights of persons belonging to national or ethnic, religious and linguistic minorities 155 has traditionally been presented by Austria and in the past few years
has encountered some difficulties in attempting to establish a monitoring mandate,
especially given the existence of a Sub-Commission Working Group on the same topic.
This year, though, a report by the High Commissioner demonstrated that some important
challenges facing minorities had not been adequately covered by existing mandates. As
minority issues did not constitute the main focus of existing special procedures, these
mechanisms were unable to reflect the full range of concerns relevant to minorities.156
Besides the High Commissioners input, this resolution has also benefited from the

526

N. Ghanea and A. Melchiorre

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

work of the Sub-Commission and its Working Group on minorities that had recommended
establishing the mandate of a Special Representative of the Secretary-General on issues
concerning minorities. As a reflection of these recommendations, and slightly adapting
them to accommodate various concerns, the resolution requests the High Commissioner
to appoint an Independent Expert on minority issues for a period of two years, with
the mandate to promote the implementation of the Declaration on the Rights of
Persons Belonging to National or Ethnic, Religious and Linguistic Minorities; to
identify best practices and possibilities for technical cooperation by the OHCHR
at the request of governments; to cooperate closely, while avoiding duplication,
with existing relevant United Nations bodies, mandates, mechanisms as well as
regional organizations; and to take into account the views of non-governmental
organizations on matters pertaining to his or her mandate.157
The resolution also foresees a modification of the mandate of the Working Group and an
assessment of the efficacy of the two mechanisms in two years time.158 It is undoubtedly
encouraging to see that the relentless efforts by Austria combined with the inputs of
various human rights mechanisms succeeded in finding a good compromise after a
number of years of debate on the issue.
After years of the coexistence of two resolutions devoted to the issue of terrorism and
human rights, one presented by Algeria and the other introduced by Mexico, this session
finally saw the adoption of one single text and the agreement on the establishment of a
Special Rapporteur. Other UN mechanisms already deal with the issue of terrorism, but
as rightly pointed out by the Independent Expert of the Commission in his report the
Commission on Human Rights should consider the creation of a special procedure with
a multidimensional mandate to monitor States counter-terrorism measures and their compatibility with international human rights law.159 This proposal was endorsed by both the
Secretary-General and the High Commissioner and was therefore included in this years
draft. The Mexican text entitled Protection of Human Rights and fundamental freedoms
while countering terrorism,160 supported by 68 sponsors, decided to appoint, for a
period of three years, a Special Rapporteur on the promotion and protection of human
rights and fundamental freedoms while countering terrorism, with the mandate to make
concrete recommendations; to gather, request, receive and exchange information and communications from and with all relevant sources, with special attention on areas not covered
by existing mandate holders; to identify, exchange and promote best practices on measures
to counter terrorism that respected human rights and fundamental freedoms; and to work in
close coordination with all United Nations relevant bodies.161 Here is another case combining the tireless efforts of Mexico, the supporting campaigns of NGOs and the decisive
recommendations by the previously appointed Independent Expert, the UN SecretaryGeneral and the High Commissioner together to win any reluctance and rise above political oppositions.
On another positive note, the adoption of the long-awaited Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law 162
has to be recorded as a welcome development reinforcing the protection of victims of
human rights abuses. To put it in the words of the representative of Canada, the Basic Principles and Guidelines had incorporated a victim-oriented perspective and would help

The Sixty-First Session of the Commission on Human Rights

527

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

states in regard of modalities and measures in existing human rights law and international
humanitarian law.163 Despite some allegations that the resolution would create new legal
obligations for states, Chile the main sponsor and various co-sponsors reiterated that
they were the result of more than 15 years of work by independent experts and of inputs
from states as well as international and non-governmental organisations. Given the
lengthy preparation of such a document, consensus should have been expected. Therefore
it is perhaps disappointing to note that the resolution was put to a vote at the request of the
US who disagreed with the reference to the International Criminal Court.
Conclusion
The 61st session of the Commission on Human Rights offered a mixed range of outcomes.
On the one hand, consideration of country situations lost much ground and continued to
shift from serious condemnation under item 9 to more loosely worded and less shaming
deliberations under item 19 or item 3; on the other, negotiations on thematic issues
increased and generally provided more positive results, despite a few attempts to hinder
progress or break resolutions previously adopted by consensus. This review has tried to
highlight how political will, regional alliances, country exceptionalism and different cultural, social and economical outlooks impacted on the results and credibility of this Commission session. Alongside blatant failures, some successes can be recorded. Yet, changes
in the Commissions decision-making processes are still patently necessary. The decision
taken at the 14 16 September 2005 World Summit to replace the Commission with a
Human Rights Council brings hope. However, only the outcomes of the General Assembly
negotiations on the Councils mandate, size, composition and methods of work will tell us
whether the new body will be able to overcome the above mentioned difficulties.
Notes
1. Membership of the Commission listed according to regional groups can be found on http://www.ohchr.org/english/bodies/chr/docs/61chr/2005regional.doc (accessed 11 July 2005).
2. Statement by Ms Louise Arbour, UN High Commissioner for Human Rights, 14 March 2005, available
at http://www.unhchr.ch/huricane/huricane.nsf/view01/527ED2F6E7DD06ADC1256FC400406C8D?
opendocument (accessed 8 July 2005).
3. UN Doc A/59/565 (2 December 2004), Follow-up to the outcome of the Millennium Summit, para. 3.
4. Ibid. para. 283.
5. Ibid. para. 289.
6. UN Doc A/59/2005 (21 March 2005), In larger freedom: towards development, security and human rights
for all, para. 143.
7. UN Doc SG/SM/9808 HR/CN//1108 (7 April 2004), Press Release, Secretary-General outlines major
proposals to reform UN human rights machinery, in address to Geneva Human Rights Commission.
8. UN Doc A/59/2005 (note 6) para. 183.
9. Ibid. para. 183.
10. Ibid. para. 183.
11. Ibid. para. 183.
12. UN Doc SG/SM/9808 HR/CN//1108 (note 7).
13. Statement by Ms Louise Arbour. UN High Commissioner for Human Rights. 22 April 2005, available
online at http://www.unhchr.ch/huricane/huricane.nsf/view01/B0848560A2465272C1256FEB0052A975?
opendocument (accessed 8 July 2005).
14. 2005 UN Commission on Human Rights: Joint statement on UN Reform, Amnesty International, Public
Statement, AI Index: IOR 41/034/2005 (Public), News Service No: 089, 12 April 2005.

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

528

N. Ghanea and A. Melchiorre

15. Statement by Ms Louise Arbour (note 13).


16. UN Doc SG/SM/9808 HR/CN//1108 (7 April 2004), Press Release, Secretary-General outlines major
proposals to reform UN human rights machinery, in address to Geneva Human Rights Commission.
17. At the 1415 September 2005 World Summit, member states agreed to create a Human Rights Council
responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner. The Council should address
situations of violations of human rights, including gross and systematic violations, and make recommendations thereon. It should also promote effective coordination and the mainstreaming of human rights
within the United Nations system. They also requested the President of the General Assembly to
conduct open, transparent and inclusive negotiations, to be completed as soon as possible during the sixtieth
session, with the aim of establishing the mandate, modalities, functions, size, composition, membership,
working methods and procedures of the Council. UN Doc. A/60/L.1, (20 September 2005), paras.
157 160.
18. Economic and Social Council Resolution 1235 (XLII), 42 UN, ESCOR Supp. (No. 1) at 17, UN Doc.
E/4393 (1967).
19. UN Doc E/CN.4/RES/1992/58.
20. Whilst Commission concern with Cuba, for example, stretches back to 1990, the resolution was discontinued in 1998 when it was adopted as a Commission decision rather than resolution.
21. UN Doc E/CN.4/2005/36 (2 December 2004), Report of Mr Paulo Sergio Pinheiro, Special Rapporteur on
the situation of human rights in Myanmar, para. 53.
22. UN Doc E/CN.4/2005/130 (7 March 2005), Report of the Secretary-General on the situation of human
rights in Myanmar.
23. For a list of member states go to http://europa.eu.int/abc/index_en.htm# (accessed 11 July 2005).
24. UN Doc E/CN.4/RES/2005/10 (14 April 2005), Situation of human rights in Myanmar, adopted without a
vote.
25. Reported in: UN Doc. E/CN.4/RES/2004/13 (15 April 2004), Situation of human rights in the Democratic
Peoples Republic of Korea, adopted by a recorded vote of 29 votes to 8 with 16 abstentions, para. 1 (g).
26. Ibid. para. 1.
27. Ibid. para. 5.
28. UN Doc. E/CN.4/RES/2005/11 (14 April 2005), Situation of human rights in the Democratic Peoples
Republic of Korea, adopted by a recorded vote of 30 votes to 9 with 14 abstentions, para. 10.
29. UN Doc E/CN.4/2005/34 (10 January 2005), Report of Mr Vitit Muntarbhorn, Special Rapporteur on the
situation of human rights in the Democratic Peoples Republic of Korea, para. 67.
30. UN Doc. E/CN.4/RES/2005/11 (note 27) para. 1.
31. Ibid. para. 1(c).
32. UN Doc E/CN.4/2005/SR.50 (21 April 2005), Summary Record of the 50th meeting, para. 17.
33. Ibid. para. 19.
34. Ibid. para. 27.
35. UN Doc E/CN.4/2005/33 (4 January 2005), Situation of human rights in Cuba, Report of the Personal
Representative of the High Commissioner for Human Rights, Ms Christine Chanet.
36. UN Doc E/CN.4/RES/2005/12 (14 April 2005), Situation of human rights in Cuba, adopted by a recorded
vote of 21 to 17 with 15 abstentions.
37. A mere two operative paragraphs.
38. UN Doc E/CN.4/2005/SR.50 (note 31) para. 34.
39. Ibid. para. 35.
40. Ibid. para. 37.
41. UN Doc E/CN.4/RES/2005/13 (14 April 2005), Situation of human rights in Belarus, adopted by a
recorded vote of 23 to 16 with 14 abstentions, para. 4.
42. UN Doc E/CN.4/2005/35 (18 March 2005), Report of the Special Rapporteur on the situation of human
rights in Belarus, Mr Adrian Severin, para. 61.
43. UN Doc E/CN.4/RES/2005/82 (21 April 2005), Situation of human rights in the Sudan, adopted without a
vote, para. 4(b).
44. Ibid. para. 4(c).
45. For example: safe and unhindered humanitarian access, sexual and other kinds of violence against women
and girls, the rights of refugees and IDPs; cooperation with international, regional and humanitarian
organisations; granting access to Darfur to the ICRC, preventing the recruitment of child soldiers,

The Sixty-First Session of the Commission on Human Rights

46.

47.
48.

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.

74.

75.

529

refraining from the use of landmines and stopping the abduction and murder of relief workers. See ibid.
para. 3.
The rights and security of IDPs and refugees, access to courts for victims and the independence of the judiciary and establishing a truth and reconciliation commission once peace is established in Darfur, See ibid.
para. 4.
Ibid. para. 11.
UN Doc. E/CN.4/2003/L.35 on the situation of human rights in the Sudan failed to be adopted by 24 votes
in favour, 26 against with 3 abstentions (Thailand, Uganda, Venezuala).
UN Doc. E/CN.4/RES/2004/128 (23 April 2004), Situation of human rights in the Sudan, adopted with 50
votes for, 1 against and 2 abstentions, para. 1.
UN Doc E/CN.4/RES/2005/83 (21 April 2005), Assistance to Somalia in the field of human rights,
adopted without a vote, para. 1(a).
Ibid. para. 7(b).
UN Doc E/CN.4/RES/2005/85 (21 April 2005), Technical cooperation and advisory services in the
Democratic Republic of the Congo, adopted without a vote.
UN Doc E/CN.4/2005/SR.61 (4 May 2005), Summary Record of the 61st meeting, para. 25.
UN Doc E/CN.4/RES/2005/75 (20 April 2005), Advisory services and technical assistance for Burundi,
adopted without a vote, para. 24.
Ibid. para. 27.
UN Doc E/CN.4/RES/2005/76 (20 April 2005), Assistance to Sierra Leone in the field of human rights,
adopted without a vote, para. 1(a).
Ibid. para. 1(b).
UN Doc E/CN.4/RES/2005/77 (20 April 2005), Technical cooperation and advisory services in
Cambodia, adopted without a vote, preambular para. 3.
Ibid. para. 1.
Ibid. para. 4(a).
Ibid. para. 4(b).
Ibid. para. 5.
UN Doc E/CN.4/RES/2005/78 (20 April 2005), Technical cooperation and advisory services in Nepal,
adopted without a vote, preambular para. 4.
Ibid. paras. 4, 5 and 6.
Ibid. para. 17.
UN Doc E/CN.4/2005/17 (22 April 2005) Situation of human rights in Liberia, adopted without a vote at
the 62nd meeting.
UN Doc E/CN.4/2005/18 (22 April 2005) Technical cooperation and advisory services in the field of
human rights in Chad, adopted without a vote at the 62nd meeting.
UN Doc E/CN.4/2005/119 (6 January 2005), Situation of human rights in Liberia, Report by the independent expert Charlotte Abaka.
UN Doc E/CN.4/2005/121 (27 January 2005), Situation of human rights in Chad, Report by the independent expert Monica Pinto.
UN Doc E/CN.4/RES/2003/77 (25 April 2003) Situation of human rights in Afghanistan, adopted without
a vote at the 62nd meeting.
UN Doc OHCHR/STM/CHR/04/1 (21 April 2004) Technical cooperation in the field of human rights in
Afghanistan.
UN Doc E/CN.4/2005/L.94/Rev.1 (21 April 2005), Question of detainees in the area of the United States
naval base in Guantanamo, rejected by a roll call vote of 8 in favour and 22 against with 22 abstentions.
N. Ghanea and L. Rahmani, A Review of the 58th session of the Commission on Human Rights, International Journal of Human Rights, Vol.8, No.1 (2004); and N. Ghanea and L. Rahmani, A Review of
the 59th session of the Commission on Human Rights, International Journal of Human Rights, Vol.9,
No.1 (2005).
UN Doc E/CN.4/RES/2005/7 (14 April 2005), Israeli practices affecting the human rights of the
Palestinian people in the occupied Palestinian territory, including East Jerusalem, adopted by a recorded
vote of 29 in favour, 10 against, with 14 abstentions; main sponsor was the Libyan Arab Jamahiriya.
UN Doc E/CN.4/RES/2005/6 (14 April 2005), Israeli settlements in the occupied Palestinian territory,
including East Jerusalem, and the occupied Syrian Golan, adopted by a recorded vote of 39 in favour, 2
against (Australia and the US), with 12 abstentions; main sponsor was the Libyan Arab Jamahiriya.

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

530

N. Ghanea and A. Melchiorre

76. UN Doc E/CN.4/RES/2005/1 (7 April 2005), Situation in occupied Palestine, adopted by a recorded vote
of 49 in favour, 1 against (US), with 2 abstentions; main sponsor was Libyan Arab Jamahiriya.
77. UN Doc E/CN.4/2005/L.3 (14 April 2005), Postponement of consideration of draft resolution, Human
rights situation of the Lebanese detainees in Israel, decided without a vote.
78. Economic and Social Council resolution 1503 (XLVIII) of 27 May 1970.
79. UN Doc E/CN.4/2005/SR.30 (8April 2005), Summary Record of the 30th meeting, para. 1.
80. Even just a basic comparison between traditional first and second generation of rights immediately shows a
constant tendency to adopt a great number of resolutions on civil and political rights by consensus and the
majority of economic, social and cultural rights resolutions by a recorded vote.
81. Statement by Nicholas Howen, Secretary-General of the International Commission of Jurists, 22 April
2005, available at http://www.icj.org/news.php3?id_article3681&langen (accessed 20 June 2005).
82. UN Doc. E/CN.4/RES/2005/45 (19 April 2005), Human rights and arbitrary deprivation of nationality,
adopted without a vote.
83. UN Doc. E/CN.4/RES/2005/66 (20 April 2005), Right to the truth, adopted without a vote.
84. UN Doc. E/CN.4/RES/2005/70 (20 April 2005), Human rights and transitional justice, adopted without a
vote.
85. UN Doc. E/CN.4/RES/2005/37 (19 April 2005), Promoting the rights to peaceful assembly and association, adopted by a recorded vote of 45 in favour and none against, with 8 abstentions.
86. UN Doc. E/CN.4/RES/2005/69 (20 April 2005), Human rights and transnational corporations and other
business enterprises, adopted by a recorded vote of 49 in favour and 3 against, with 1 abstention.
87. UN Doc. E/CN.4/RES/2005/45 (note 82), paras. 1 3.
88. UN Doc. E/CN.4/RES/2005/66 (note 83) paras. 1 2.
89. UN Doc. E/CN.4/RES/2005/70 (note 84) paras. 2 3.
90. UN Doc. E/CN.4/RES/2005/37 (note 85) para. 1.
91. These amendments were introduced by the Russian Federation and strongly supported by Cuba and China.
92. UN Doc. E/CN.4/2005/SR.57(19 April 2005), Summary Record of the 57th meeting, para. 6.
93. UN Doc. E/CN.4/RES/2005/69 (note 86) para. 1.
94. UN Doc. E/CN.4/2005/SR.59 (20 April 2005), Summary Record of the 59th meeting, para. 60.
95. In this specific case, Cuba abstained together with Bhutan, China, Eritrea, Qatar, Russian Federation, Saudi
Arabia and Zimbabwe. UN Doc. E/CN.4/2005/SR.57 (note 92) para. 14.
96. UN Doc. E/CN.4/2005/15 (9 February 2005), Report of the High Commissioner for Human Rights on
combating defamation of religions; UN Doc. E/CN.4/2005/16 (14 December 2004), Progress Report of
the Office of the High Commissioner for Human Rights on the implementation of relevant recommendations
of the second session of the Intergovernmental Working Group on the Effective Implementation of the
Durban Declaration and Programme of Action; UN Doc. E/CN.4/2005/17 (14 December 2004), Report
of the High Commissioner for Human Rights on the possibility of the development of a racial equality
index.
97. UN Doc. E/CN.4/2005/18 (13 December 2004), Report of Mr Doudou Die`ne, Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance and UN Doc.
E/CN.4/2005/18/Add.1 (23 February 2005), Cases received and considered by the Special Rapporteur;
UN Docs. E/CN.4/2005/18/Add.2 (11 March 2005), E/CN.4/2005/18/Add.3 (22 December 2004),
E/CN.4/2005/18/Add.6 (4 March 2005), Reports of the Special Rapporteurs missions to Guatemala,
Cote dIvoire and Nicaragua respectively; UN Doc. E/CN.4/2005/18/Add.4 (13 December 2004), Defamation of religions and global efforts to combat racism in terms of anti-Semitism, Christianophobia and
Islamophobia.
98. UN Doc. E/CN.4/2005/21 (26 January 2005), Report of the Working Group of Experts on People of
African Descent.
99. UN Doc. E/CN.4/2005/20 (14 December 2004), Report of the Intergovernmental working Group on the
effective implementation of the Durban Declaration and Programme of Action.
100. Also referred to as the League of Arab States. For a list of members go to http://www.arableagueonline.org/arableague/english/level2_en.jsp?level_id11 (accessed 11 July 2005).
101. The Organization of the Islamic Conference (OIC) is an inter-governmental organisation grouping 56 states.
For a list of members go to http://www.oic-oci.org/english/main/memebr-states.htm (accessed 11 July
2005).
102. UN Press releases of 21 March 2005.

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

The Sixty-First Session of the Commission on Human Rights

531

103. UN Doc. E/CN.4/RES/2005/3 (12 April 2005), Combating defamation of religions as a means to promote
human rights, social harmony and religious and cultural diversity, adopted by a recorded vote of 31 in
favour, 16 against, with 5 abstentions.
104. Ibid. paras 1, 3 and 4.
105. UN Press release of 12 April 2005.
106. UN Doc. E/CN.4/RES/2005/40 (19 April 2005), Elimination of all forms of intolerance and of discrimination based on religion or belief, adopted without a vote.
107. Ibid. paras 2 and 4(a).
108. UN Doc.E/CN.4/2005/61 (20 December 2004), Report of the Special Rapporteur on freedom of religion or
belief, Ms Asma Jahangir and UN Doc. E/CN.4/2006/61/Add.1 (15 March 2005), Communications to and
from governments.
109. UN Doc. E/CN.4/RES/2005/64 (20 April 2005), The World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance and the comprehensive implementation of and follow-up to the
Durban Declaration and Programme of Action, adopted by a recorded vote of 38 in favour and 1 against,
with 14 abstentions.
110. At their first meeting in 2003 the experts recommended that the international community find ways of
measuring existing racial inequalities, possibly through the development of a Racial Equality Index,
similar to the Human Development Index developed and used by the United Nations Development Programme (UN Doc. E/CN.4/2004/112, paragraph 6 (f)). In her Report on the possibility of the development of a racial equality index the High Commissioner concludes that while a racial equality index
seems to be a potentially important tool, its complexity requires serious consideration and it is necessary
to establish its methodological soundness for the outcome of the exercise to be credible (UN Doc. E/
CN.4/2005/17 (note 96) para. 12).
111. UN Doc. E/CN.4/RES/2005/64 (note 109) para. 29.
112. Ibid. para. 16.
113. Ibid. para. 36.
114. This is a procedural motion provided by Article 2 of Rule 65 of Rules of Procedure of the Functional Commissions of the Economic and Social Council of the United Nations according to which A motion requiring
that no decision be taken on a proposal shall have priority over that proposal. The no-action motion has
been proposed on numerous occasions by countries on draft resolutions in different functional commissions
of the Economic and Social Council including the Commission on Human Rights, traditionally on country
resolutions and more recently also on thematic issues.
115. UN Doc. E/CN.4/2005/SR.59 (note 94) paras. 4 7.
116. UN Doc. E/CN.4/RES/2005/5 (14 April 2005), Inadmissibility of certain practices that contribute to fuelling contemporary forms of racism, racial discrimination, xenophobia and related intolerance, adopted by a
recorded vote of 46 in favour and none against, with 4 abstentions
117. UN Doc. E/CN.4/2005/SR.49 (14 April 2005), Summary Record of the 49th meeting, para. 2.
118. In particular, the Islamic countries considered that the issue was not a proper subject for consideration by
the Commission. Notwithstanding the assertion to the contrary by the representative of Brazil, the draft resolution sought to establish new rights that were currently not in evidence in any body of law in the International Covenants and were in direct confrontation with the religions and laws of many countries (UN
Doc. E/CN.4/2003/SR.61 (note 52) para. 60).
119. Andorra, Argentina, Austria, Belgium, Canada, Chile, Cyprus, Czech Republic, Denmark, Estonia, Finland,
France, Germany, Greece, Guatemala, Iceland, Ireland, Luxembourg, Mexico, New Zealand, Netherlands,
Norway, Portugal, Republic of Korea, Romania, Slovenia, Spain, Sweden, Switzerland, UK, Uruguay and
Venezuela. It is interesting to note that some countries of the Western group did not align themselves with
this statement.
120. See for example, among many others, the reports of the Special Rapporteur on extrajudicial, summary
or arbitrary executions (UN Doc. E/CN.4/2005/7, para. 18 and UN Doc. E/CN.4/2003/3, paras. 66
67); of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (UN Doc. E/CN.4/2004/49 paras. 38 and 54); of the Special
Rapporteur on the question of torture (UN Doc. A/56/156, 2001, paras. 1725); of the Special Rapporteur on violence against women, its causes and consequences (UN Doc. E/CN.4/2003/75/Add.2,
para. 228).
121. See for example, among many others, the Concluding observations by the Human Rights Committee on
Chile (UN Doc. CCPR/C/79/Add.104, 1999, para. 20); by the Committee against Torture on Egypt

532

122.
123.

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

124.

125.

126.
127.
128.
129.
130.
131.
132.
133.
134.
135.
136.

137.
138.
139.
140.
141.
142.
143.
144.

N. Ghanea and A. Melchiorre


(UN Doc. CAT/C/CR/29/4, 2002, para. 5(e)); by the Committee on the Elimination of Discrimination
against Women on Sweden (UN Doc. A/56/38, 2001, para. 334); as well as the Committee on Economic,
Social and Cultural Rights General Comment 14 on the right to the highest attainable standard of health
(UN Doc. E/C.12/2000/4, para. 18) and General Comment 15 on the right to water (UN Doc. E/C.12/
2002/11, para. 13).
Statement by Ambassador Tim Caughley, New Zealand Ambassador, available at http://www.ilga.org/
news_results.asp?LanguageID1&FileID533&FileCategory61&ZoneID7 (accessed 9 June 2005).
UN Doc. E/CN.4/RES/2005/34 (19 April 2005), Extra-judicial, Summary and Arbitrary Executions,
adopted by a recorded vote of 36 in favour, none against, with 17 abstentions.
Ibid. para. 5: Reaffirms the obligation of States to protect the inherent right to life of all persons under
their jurisdiction and calls upon States concerned to investigate promptly and thoroughly all cases of
killings, including those committed in the name of passion or in the name of honour, all killings committed for any discriminatory reason, including sexual orientation; racially motivated violence leading to
the death of the victim; killings of members of national, ethnic, religious or linguistic minorities, of refugees, of internally displaced persons, of street children, of members of indigenous communities or of
migrants; killings of persons for reasons related to their activities as human rights defenders, lawyers,
doctors, journalists or as demonstrators, in particular as a consequence of their exercise of the right
to freedom of opinion and expression; as well as other cases where a persons right to life has been
violated, all of which are being committed in various parts of the world, and to bring those responsible
to justice before a competent, independent and impartial national tribunal or, where appropriate, international tribunal, and to ensure that such killings, including those committed by security forces, police
and law enforcement agents, paramilitary groups or private forces, are neither condoned nor sanctioned
by government officials or personnel.
Ethiopia, India, Nepal and USA changed from support to opposition; Togo and Nigeria changed from
abstention to opposition; Bhutan and Honduras changed from support to abstention; Paraguay and
Swaziland changed from abstention to support.
UN Press release of 19 April 2005.
Ibid.
UN Doc. E/CN.4/RES/2005/41 (19 April 2005), Elimination of violence against women, adopted without
a vote.
UN Doc. E/CN.4/RES/2005/84 (21 April 2005), Protection of human rights in the context of HIV/AIDS,
adopted without a vote.
UN Doc. E/CN.4/1997/37, annex I.
UN Doc. E/CN.4/2005/SR.58 (20 April 2005), Summary Record of the 58th meeting, para. 5.
UN Doc. E/CN.4/2005/SR.61 (note 52) para. 14.
Ibid. para. 13.
UN Doc. E/CN.4/2005/SR.58 (note 131) para. 6.
UN Doc. E/CN.4/RES/2005/41 (note 128) operative paragraph 11; UN Doc. E/CN.4/RES/2005/84
(note 129) preambular paragraphs 11 and 17 and operative paragraphs 1 and 14.
This year the Annual Report of the Special Rapporteur on violence against women, its causes and consequences, Ms Yakin Erturk, was totally dedicated to the Intersections of violence against women and
HIV/AIDS (UN Doc. E/CN.4/2005/72).
UN Doc. E/CN.4/RES/2005/41 (note 128) para. 11.
UN Doc. E/CN.4/RES/2005/24 (15 April 2005), The right of everyone to the enjoyment of the highest
attainable standard of physical and mental health, adopted by a recorded vote of 52 in favour and 1 against.
UN Doc. E/CN.4/RES/2005/41 (note 128) para. 5.
UN Doc. E/CN.4/2005/SR.57 (note 92) para. 44.
Ibid. para. 45.
UN press releases of 29 and 30 March 2005.
UN Doc. E/CN.4/RES/2005/22 (15 April 2005), Question of the realization in all countries of economic,
social and cultural rights, adopted by a recorded vote of 50 votes to none, with 3 abstentions.
Statement by Ms Louise Arbour, High Commissioner for Human Rights, to the Open-Ended Working
Group established by the Commission on Human Rights to consider options regarding the elaboration
of an optional protocol to the International Covenant on Economic, Social and Cultural Rights,
14 January 2005, available at http://www.unhchr.ch/huricane/huricane.nsf/view01/ECAE2629449C1EBCC1256F8C0035047D?opendocument (accessed 17 June 2005).

Downloaded By: [University of Oxford] At: 16:57 19 January 2011

The Sixty-First Session of the Commission on Human Rights

533

145. UN doc. E/CN.4/2005/SR.51 (15 April 2005), Summary Record of the 51st meeting, para. 8.
146. Ibid. para. 9.
147. Suffice it to recall, for example, that Canada who has always been reticent with regard to such an idea this
year has voted in favour of the resolution. Another indication of positive change is that Qatar has moved
from abstention to support.
148. UN Doc. E/CN.4/2005/18 (14 April 2005), The right to food, adopted by a recorded vote of 52 in favour
and 1 against.
149. UN Doc. E/CN.4/2005/51 (11 February 2005), Report of the Special Rapporteur on the right to the highest
attainable standard of physical and mental health, Mr Paul Hunt.
150. UN Doc. E/CN.4/2005/47 (24 January 2005), Report of the Special Rapporteur on the right to food,
Mr Jean Ziegler.
151. For the resolution on the right to food see UN Doc. E/CN.4/2005/SR.50 (note 31) paras. 9495; for the
resolution on the right to health see UN Doc. E/CN.4/2005/SR.51 (note 145) paras. 2829.
152. UN Doc. E/CN.4/RES/2005/23 (15 April 2005), Access to medication in the context of pandemics such as
HIV/AIDS, tuberculosis and malaria, adopted without a vote.
153. The result of the vote was 1 in favour, 51 against with 1 abstention (Japan). See UN Doc. E/CN.4/2005/
SR.51 (note 145) paras. 1622.
154. UN Doc. E/CN.4/DEC/2005/109 (19 April 2005), Discrimination based on work and descent, adopted
without a vote.
155. UN Doc. E/CN.4/RES/2005/79 (21 April 2005), Rights of persons belonging to national or ethnic, religious and linguistic minorities, adopted without a vote.
156. UN Doc. E/CN.4/2005/81 (1 March 2005), Report of the High Commissioner on the rights of persons
belonging to national or ethnic, religious and linguistic minorities, para. 25.
157. UN Doc. E/CN.4/RES/2005/79 (note 155) para. 6.
158. Ibid. paras. 9 and 14.
159. UN Doc. E/CN.4/2005/103 (7 February 2005), Report of the Independent Expert on the question of the
protection of human rights and fundamental freedoms while countering terrorism, para. 91.
160. UN Doc. E/CN.4/RES/2005/80 (21 April 2005), Protection of human rights and fundamental freedoms
while countering terrorism, adopted without a vote.
161. Ibid. para. 14.
162. UN Doc. E/CN.4/RES/2005/35 (19 April 2005), Basic principles and guidelines on the right to a remedy
and reparation for victims of gross violations of international human rights law and serious violations of
international humanitarian law, adopted by a recorded vote of 40 in favour and none against, with 13
abstentions.
163. UN Press release of 19 April 2005.

Você também pode gostar