Creating the High Commissioner for Human Rights: The Outside Story

Andrew Clapham¹

Full text available: PDF format ^*

This note concentrates on the events of 1993 that culminated in the creation of the new High Commissioner for Human Rights.² It is this recent history which really determines the way this office will develop. Although the human rights organizations were at the forefront of the campaign to have a High Commissioner they had to remain outside the drafting room. Their story - `the outside story' - is that although they were shunned from the process of drafting the resolution, they are now vital to the High Commissioner if he is to implement the terms of that resolution.

I. Genesis of the Idea: from Attorney-General to `Big Coordinator'

As far back as 1947, during the drafting of the Universal Declaration of Human Rights, Professor René Cassin from France put forward the idea of an Attorney-General for Human Rights. The idea was that an aggrieved individual would be able to petition the UN Commission on Human Rights and then `on appeal' to a Court of Human Rights the proposed Attorney-General would assist the individual against the respondent state.<sup>3</sup> In 1950 and 1951 Uruguay submitted a proposal for such an Attorney-General.<sup>4</sup> The Attorney-General was to collect and examine information concerning observance of the Covenant on Civil and Political Rights. In 1963 the idea was taken up by Jacob Blaustein and already the title High Commissioner was seen as too scary; the alternative `Special Rapporteur' was mooted.⁵ In 1964 various meetings were organized by non-governmental organizations (NGOs). These took place first, in Paris under the auspices of the World Veterans Association, second, in London under the auspices of Amnesty International and lastly, in Geneva under the auspices of the International Commission of Jurists. A joint statement and draft General Assembly resolution emerged from a coalition of these and other international NGOs with Sean McBride playing a central role. In 1965 Costa Rica introduced a draft at the Commission on Human Rights.

The idea bounced between the Commission and the General Assembly and by 1977 the Third Committee of the General Assembly actually had before it a draft resolution for adoption concerning the establishment of a High Commissioner for Human Rights. However, Cuba put forward a procedural motion suggesting that the whole issue be passed back to the Commission and this was narrowly adopted by 62 in favour, 49 against and 22 abstentions.

Over the next fifteen years the Human Rights Committee and the Committee on Economic, Social and Cultural Rights came to supervise the two Covenants and other expert treaty bodies were established to supervise other treaties on racial discrimination, discrimination against women, the rights of the child, and torture.⁶ In addition so-called thematic mechanisms which could receive and take up complaints were created: the working group on disappearances, the working group on arbitrary detention, the special rapporteur on extrajudicial summary or arbitrary executions, the special rapporteur on torture, the special rapporteur on religious intolerance, the special rapporteur on racism and xenophobia, and the special rapporteur on freedom of expression. Furthermore, country rapporteurs were appointed by the Commission on Human Rights to publicly report on the human rights situations in countries selected by the Commission. By 1993 the list of countries with rapporteurs or advisory services experts included Afghanistan, Cambodia, Cuba, El Salvador, Equatorial Guinea, Guatemala, Haiti, Iran, Iraq, Myanmar, Somalia, Sudan, and the former Yugoslavia. In addition there was an ad hoc working group on South Africa, a special committee on Israeli practices affecting human rights of Palestinian People and a special rapporteur for the Israeli Occupied Territories.

This is not the place to rehearse the circumstances surrounding the development of these and other mechanisms as well as a range of human rights standards.⁷ These developments are mentioned here to demonstrate that the human rights landscape looked very different at the beginning of the 90s than it did at the end of the 70s. But despite this plethora of different mechanisms the UN continues to receive an increasing number of complaints relating to serious human rights violations. In its report to the World Conference on Human Rights, Amnesty International stated that the UN Working Group on Enforced or Involuntary Disappearances had received 17,000 reports of `disappearances' in 1991; similarly the Special Rapporteur on Torture stated that he had received `an alarming number of communications'. In the context of internal armed conflict the numbers of death threats and summary executions continues to rise.⁸ At the end of 1992 even the Secretary-General of the UN admitted that the UN had to face the fact that they had been unable to effectively end massive human rights violations.⁹

Despite the promise of a `new world order'¹⁰ the disorder in which the world lay in 1992, together with the heightened expectations surrounding the UN, left many hungry for a new initiative which would harness the capacity of the UN to offer real protection while at the same time speaking out to combat the considerable suffering which was surfacing every day.

The advent of the World Conference on Human Rights forced many involved with human rights to consider the weaknesses in the current system and propose new ideas. In September 1992, at a large conference in Amsterdam hosted by the Dutch Section of Amnesty International, a number of human rights experts and activists agreed on the need for a new office headed by a high-level UN official to respond promptly and effectively to serious violations of human rights, including `disappearances' and political killings and to become generally a focal point for UN action on human rights.¹¹ The idea was promoted by Amnesty International at the Tunis regional preparatory meeting to the World Conference in December 1992 and became the centrepiece of its proposals to the World Conference.¹² The idea was included in the governmental declaration at the Costa Rica regional preparatory meeting,¹³ having been seriously promoted by the host government. It was seriously discussed by governments and others at the Strasbourg inter-regional expert meeting hosted by the Council of Europe in January 1993, and endorsed in a number of important NGO declarations including the final report of the NGOs meeting before the World Conference:

3. An office of a High Commissioner for Human Rights should be established as a new high-level independent authority within the United Nations system, with the capacity to act rapidly in emergency situations of human rights violations and to ensure the coordination of human rights activities within the United Nations system and the integration of human rights into all United Nations programmes and activities.¹⁴

According to Susan Marks, the actual Conference `had both its Nightmare and its Noble Dream'.<sup>15</sup> `The Nightmare of the Conference was that human rights had nothing to offer the Bosnian women, the Tibetan Buddhist monks, or the Kurds who had come to tell of their suffering... The Noble Dream was that human rights could constrain abuses, if only the right treaties and monitoring organs and implementation strategies and enforcement methods were put in place.'¹⁶ But even those diplomats who sought to fulfil the Noble Dream got little sleep during the Conference as the drafting went into the small hours. Issues such as: including the right to development as a human right; ensuring that the promotion of human rights should be conducted without conditions; including a link to peace-keeping, and the language recognizing the role of NGOs were all contentious enough to leave those involved with a hazy recollection of Vienna as a maniacal two weeks dominated by insomniacs and somnambulants. At the eleventh hour a paragraph went into the Vienna Declaration and Programme of Action and was adopted by consensus by the 171 States present:

18. The World Conference on Human Rights recommends to the General Assembly that, when examining the report of the Conference at its forty-eighth session, it begin, as a matter of priority, consideration of the question of the establishment of a High Commissioner for Human Rights for the promotion and protection of all human rights.

Hardly a ringing endorsement - but a clear message to the General Assembly to finally conclude this issue.

It is now nearly 20 years since the Centre for Human Rights moved from New York to Geneva. Holding the discussion about the High Commissioner at the General Assembly in New York highlighted the Centre's isolation from the agencies and other divisions in New York. The Vienna Declaration had called for better coordination, a system-wide approach to human rights and for the human rights of women to be integrated into the mainstream of United Nations system-wide activity.¹⁷ During the discussions, parallels were often drawn between this post and the recently created Emergency Relief Coordinator. The concept of coordinating what was already going on was something diplomats felt comfortable with. The Secretary-General's scepticism¹⁸ became more muted as he came to accept the will of the General Assembly. By the time of the appointment the Secretary-General had pledged to cooperate and welcomed the High Commissioner to the family of big coordinators.¹⁹

^* The free viewer (Acrobat Reader) for PDF file is available at the Adobe Systems.

1 Representative of Amnesty International at the United Nations, New York, the views expressed are those of the author and should not be taken as the formal position of Amnesty International.

2 For a detailed history of the early discussions of this issue see R.S. Clarke, A United Nations High Commissioner for Human Rights (1972).

3 See Clarke, supra note 1, at 39-40 and UN Doc. E/CN.4/AC.4/1 (1947).

4 Submitted to the fifth session of the General Assembly and to the seventh session of the Commission on Human Rights respectively. For the details on the fate of these proposals see `Summary of Information regarding consideration by United Nations organs of the question of the establishment of a post of United Nations High Commissioner for Human Rights', note by the Secretary-General, E/CN.4/Sub.2/1982/26, 30 July 1982.

5 Clarke, supra note 1, at 46. In 1949 the Consultative Council of Jewish Organizations adopted the term `High Commissioner' see Clarke, supra note 1, at 41.

6 International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights, International Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Elimination of All Forms of Discrimination against Women, Convention on the Rights of the Child, Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

7 For a concise summary see Farer and Gaer, `The UN and Human Rights: At the End of the Beginning', in A. Roberts and B. Kingsbury (eds), United Nations, Divided World (1993) 240-296. See also P. Alston (ed.), The United Nations and Human Rights (1992).

8 Amnesty International (AI), World Conference on Human Rights - Facing up to the Failures: Proposals for Improving the Protection of Human Rights by the United Nations, December 1992, at 4 (Facing up to the Failures). See also AI, `Disappearances' and Political Killings: Human Rights Crisis of the 1990s (1994).

9 `[I]f standards and procedures exist for normal situations, the United Nations has not been able to act effectively to bring to an end massive human rights situations. Faced with the barbaric conduct which fills the news media today, the United Nations cannot stand idle or indifferent. The long-term credibility of our organization as a whole will depend upon the success of our responses to this challenge.' 1992 report on the work of the organization, A/47/1 at para. 101.

10 Senator Gareth Evans has noted that General Secretary Gorbachev referred to `a quest for universal consensus in the movement towards a new world order' in his 1988 UN General Assembly address, but that it was President Bush's 1990 speech to Congress on 11 September 1990 which gave the concept the big push. `The New World Order and the United Nations', in R. Bustelo and P. Alston (eds), Whose New World Order? (1991) 1-10.

11 `Amnesty International souhaite une refonte des structures specialisées de l'ONU', Le Monde, 8 September 1992; Declaration of the International Conference on `Disappearances' and Political Killings, Amsterdam, 6 September 1992, AI Index ACT 33/02/92.

12 See Facing up to the Failures, supra note 7.

13 `25. We propose that the World Conference consider the possibility of asking the General Assembly to study the feasibility of establishing a United Nations Permanent Commissioner for Human Rights.' 18-22 January 1993, A/CONF.157/PC/58.

14 NGO-Forum final report to the Conference, A/CONF.157/7, at 4. See also Carter Center Colloquium, A/CONF.157/PC/79, at 5; NGO Bangkok Declaration A/CONF.157/ASRM/4.

15 `Nightmare and Noble Dream: The 1993 World Conference on Human Rights', CLJ (1994) 54-62.

16 At 54. For details of some of the atmosphere and issues that arose during the Conference see Human Rights: The New Consensus prepared by Regency Press in association with UNHCR (1994).

17 See paras. I.4. I.21, II.1, II.3, II.8, II.14, II.19, II.37 (integration of women's human rights), II.42, II.51, II.82, II.97.

18 On the eve of the World Conference the Secretary-General wrote: `Both the principles and the practices of human rights are under stress. This is a time for serious discussion, for quiet diplomacy and step-by-step problem solving. Solutions cannot be imposed from the top down. Proposals for new bureaucracies, high-level positions, more procedures and permanent forums, as admirable and well-intentioned as they are, may only arouse discontent and resistance at a time when liberality and leeway are called for. This is a year for dialogue.' Washington Post, 9 June 1993.

19 The final resolution decides that the High Commissioner will be responsible for `Coordination of the human rights promotion and protection activities throughout the United Nations system.' Given the fact that there are over 17 peace-keeping operations with varying human rights mandates, that electoral and development programmes are increasingly taking on human rights education, and that political officers are increasingly looking to the causes of conflict in an attempt to provide some kind of early warning, this fulfills a real need for greater human rights input into the UN's activities around the world. Two years earlier the General Assembly created the post of Emergency Relief Coordinator in another attempt to rationalize the sometimes disorganized activity in the field of disaster relief, see Resolution 46/182.

© 1990-2004 European Journal of International Law
All comments and suggestions should be sent to webmaster
This site is part of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European Law at the European University Institute.
This file was last modified: Tuesday, October 14, 2003 12:05PM