Report on ICC and NHRI activities

at the 12th session of the Human Rights Council

Geneva, 14 September to 2 October 2009

Ms Katharina Rose, ICC Geneva Representative

The 11th session of the Human Rights Council (HRC) was held in Geneva from 2 to 18 June 2009. It was attended by several hundred people, including representatives of UN member states, UN bodies, more than 20 national human rights institutions and a wide range of non-governmental organizations. Some highlights included: The interactive dialogue with the High Commissioner for Human Rights; the presentation of Special Procedures thematic and country-related reports; panel discussions on women’s rights and on climate change; and the adoption of reports on the Universal Periodic Review (UPR). The HRC heard presentations from high-level dignitaries, including the President of Brazil and the Vice President of Nigeria.

Apart from the plenary meetings, which continued throughout the session giving representatives of states, national human rights institutions and non-governmental organizations the opportunity to make statements, there were a wide variety of side events on such subjects as the role of national human rights institutions in human rights and business; human rights and climate change; the right to education; violence against women; as well as on specific country situations, including in Sudan, Kenya and Sri Lanka.

At the end of the session, the HRC adopted a series of resolutions on a wide variety of issues on such subjects as the right to education in detention; the establishment of an open-ended working group on an Optional Protocol to the Convention on the Rights of the Child; preventable maternal mortality; violence against women; trafficking in persons, the human rights situation in Sudan and on Special Procedures mandate holders.

Before the session

The ICC and individual NHRIs were actively engaged in the preparatory process of the HRC 11th session.

Pursuant to the ICC strategic plan on interaction with the HRC, presented to, and adopted by, the ICC 21st Bureau meeting in Nairobi, the ICC resolved to focus at the 11th HRC session on contributions in relation to the report of the Special Representative of the Secretary General on human rights and transnational corporations and on the report of the Secretary General on regional arrangements for the promotion and protection of human rights, both of which specifically mentioned the role of NHRIs.

Broad consultations were held within the ICC and its member organizations, providing all NHRIs the opportunity to participate with comments and input to the proposed initiatives. As a result, a large number of NHRIs contributed in the consultation process on two draft statements, with substantive comments and expressions of support and appreciation.

In the lead up to the HRC 11th session, the ICC, through the ICC Geneva Representative, provided support to its member institutions to enable them to participate in the HRC session and the activities surrounding it. This included: support and advice in identifying opportunities to engage with the HRC; in preparing written contributions and oral statements they would like to present at the HRC; and the facilitation and accompanying of NHRIs to meetings with Special Procedures and other officials and NGOs in Geneva.

Most NHRIs that were contacted decided to grasp all opportunities open to them to contribute to the HRC activities, for instance with written submissions, oral statements, the organization of side events and meetings with Special Procedures, NGOs and other stakeholders.

In advance of the session, several NHRIs submitted written contributions to complement Special Procedures reports on such subjects as the independence of judges and lawyers (Ombudsman of the Russian Federation); summary executions (Kenya National Commission on Human Rights, Afghanistan Independent Human Rights Commission, Commission on Human Rights of the Philippines); the right to education (Commission on Human Rights of Malaysia, Suhakam); as well as on the Universal Periodic Review (Commission on Human Rights of Malaysia, Suhakam).

These contributions have been published as official UN documents, widely disseminated and are available in the UN archives.

ICC statement on Human Rights and Business

On 2 June 2009, the ICC participated with a statement in the interactive dialogue following the presentation of the annual report of the Special Representative of the Secretary General on Transnational Corporations and Human Rights (SRSG), Professor John Ruggie.

In that statement the ICC welcomed the report of the SRSG and expressed appreciation about the constructive progress made by the SRSG in carrying out his mandate. The ICC specifically welcomed the strong recognition in the report on the role of NHRIs in the field of human rights and business.

The ICC noted that the role of NHRIs may in fact be observed in all three pillars of the “Protect, Respect, and Remedy Framework”, and that their role is a developing one that may greatly vary depending on the statutory mandate and resources of a NHRI, and the national context in which the NHRI operates.

The ICC identified as key NHRI activities: assisting businesses in having an environment respectful of human rights by providing them with appropriate tools and processes; serving as platforms to bring businesses and impacted groups together to identify problems and solutions through dialogue; providing advice on national legislations and their conformity with the international standards of human rights; providing information and advice to victims about the array of and access to dispute resolution processes available; contributing to the development of regional and global hubs for information and other resources on grievance mechanisms.

Additional NHRI activities extend to: receiving and adjudicating complaints related to the human rights performance of companies; supporting and promoting the role of national and local courts in handling business-related grievances; monitoring enforcement and thereby contributing to a climate of accountability; and addressing the extraterritorial dimensions of business-related grievances and accountability through their regional and global NHRI networks.

The ICC also informed about the establishment and mandate of the ICC Working Group and informed the SRSG that the ICC would support a more explicit integration of a gender perspective in the Framework, as well as a strengthened consultation process with developing country institutions and stakeholders.

Ms Myriam Montrat, Canadian Human Rights Commission, and Ms Katharina Rose, ICC Geneva Representative, met with the SRSG after the HRC deliberations to present him the ICC contribution. The SRSG expressed his gratitude for the active participation of the ICC in relation to the presentation of his report. He welcomed the establishment of the ICC Working Group as an excellent basis for NHRIs’ future work in the field of human rights and business. The SRSG reiterated his strong interest in cooperating with the ICC and its newly created Working Group.

Side event on business and human rights

On 5 June, the ICC in collaboration with OHCHR hosted a side event entitled “Engaging NHRIs in securing the promotion and protection of human rights in business”. Approximately 30 representatives from NHRIs, non-governmental organizations, and member States attended the event.

The event aimed to develop a broad understanding of the emerging role of NHRIs on the business and human rights agenda, focusing in particular on the issues canvassed by the UN Special Representative of the Secretary General on Human Rights and Transnational Corporations in his recent reports to the Human Rights Council.

Ms Claire Methven O Brien, Danish Institute for Human Rights, moderated the event and provided opening and concluding remarks. Panelists included: Ms Lene Wendland, OHCHR; Ms Florence Simbiri-Jaoko, Kenya National Commission for Human Rights; Ms Myriam Montrat, Canadian Human Rights Commission; and Mr. Chris Avery, Business & Human Rights Resource Center (NGO).

As outcome of the event, participants identified a set of challenges and opportunities for NHRIs. These include: engaging small and medium sized enterprises that do not have the same resources and are less reputation-focused; the limited legal basis for corporate social responsibility issues, which makes leverage to take on companies difficult; the polarization of civil society and business; the transnational dimension and the jurisdictional questions this raises. Challenges facing NHRIs specifically included under-resourcing, which will have to be creatively considered; diversity of mandates; and a need to balance diverse approaches, with the need to be coordinated.

Nevertheless, a number of opportunities for NHRI engagement on the issue of business and human rights also emerged; these included: the particular alternative dispute resolution skills of NHRIs; the innovative and specific capacities of the business community and the ability of NHRIs to harness these capabilities; the interest in prevention; and finally, wide possibilities for strategic collaboration and coordination for regional and sub-regional action.

The outcomes of the event will inform the first meeting of the ICC Working Group on Human Rights and Business, to be held in August in Copenhagen, Denmark.

ICC statement on regional arrangements for the promotion and protection of human rights

On 8 June 2009, the ICC participated with an oral statement following the presentation by the Deputy High Commissioner, Ms Kang, of the report by the United Nations Secretary General on regional arrangements for the promotion and protection of human rights.

The report presented the key outcomes of a workshop on regional human rights arrangements, organized by OHCHR in November 2008, in which several NHRIs, their regional chairs and the ICC Geneva Representative participated.

In the statement, the ICC welcomed the strong recognition the report gives to the potential of national human rights institutions with regard to regional human rights arrangements.

The ICC informed that recent years had witnessed a developing engagement between NHRIs and regional arrangements as a two way process, in terms of information-sharing, communications in relation to cases of alleged human rights violations, country visits, human rights advocacy, and in monitoring follow up to recommendations and decisions.

This engagement is exemplified by NHRIs interaction with the Inter American system, the African Commission on Human and Peoples’ Rights, and the regional mechanisms in Europe, such as the Fundamental Rights Agency (FRA) and the European Court for Human Rights. In the Asia Pacific Region, NHRIs have played a critical role in advocating for the establishment of the ASEAN human rights mechanism.

The ICC identified that the relationship between NHRIs and regional human rights mechanisms could be further strengthened had NHRIs a formally recognized standing in such mechanisms. In this regard, it recommended that such procedures could be based on the practices established at the UN levels, including the Human Rights Council and the Treaty Bodies, with due respect for the ICC accreditation procedure in accordance with the Paris Principles.

Finally, the ICC welcomed the proposal of the Secretary General to appoint a focal point within OHCHR and recommended that the focal point work closely with NHRIs.

The ICC statement and proposals were well received at the HRC, with OHCHR officials and members states committing to considering the ICC proposals in the HRC follow up activities to the report.

NHRI interaction with Special Procedures

13 Special Procedures mandate holders presented their reports and engaged with the HRC in an interactive dialogue during this session.

More than 15 NHRIs contributed to the deliberations by presenting an oral statement during the interactive dialogue with the mandate holders and by submitting written documentation to the HRC as official UN documents to complement the expert reports.

NHRI contributions addressed a wide variety of issues on subjects such as: human rights and business; migrants; the right to education; independence of lawyers and judges; summary executions; extreme poverty; and the establishment of a Paris Principles compliant NHRI in Haiti.

Most contributions related to reports following a Special Procedures’ country mission, with NHRIs commenting on the mission and on the recommendations resulting from it, as well as providing follow up information. One contribution related to a Special Procedures report on follow-up to a country mission, to which the NHRI concerned provided updates on the status of implementation of the recommendations and highlighted achievements and remaining challenges.

While most interventions were delivered by NHRI representatives, some presentations were made by the ICC Geneva Representative upon request and on behalf of A status NHRIs.

NHRI formal contributions to the HRC were complemented by a variety of related activities, such as meetings with the Special Rapporteurs and their staff, NHRI participation in related side events, as well as meetings with NGOs and States, both in Geneva and back home, and, to some extend, interaction with the media.

All Special Procedures expressed their deep gratitude for the ever more active participation of NHRIs and recognized NHRIs as critical partners for the overall Special Procedures system. Many welcomed NHRIs’ contributions as an excellent basis for their work. NHRIs and mandate holders committed to enhancing cooperation specifically in the process of follow up to Special Procedures reports, to which NHRIs could contribute with update information and other data.

NHRIs’ contributions and visibility were also appreciated by OHCHR staff, NGOs and State delegations.

NHRI participation in general debates and thematic panel events

In addition to contributing to specific reports before the HRC, NHRIs were actively engaged in a variety of thematic general debates and panel events.

On 4 June, the Commission on Human Rights of Malaysia (Suhakam) and the Equality and Human Rights Commission of Great Britain participated with oral presentations in the HRC high-level panel event on women’s human rights.

On 12 June, the Commission on Human Rights of the Philippines participated in the general debate under agenda item 6, relating to the UPR, to provide information on UPR follow-up activities conducted by the Commission.

The Commission des Droits de l’Homme et Libertes Fondamentales du Niger participated on 16 June in the general debate under agenda item 8, relating to the implementation of the Vienna Declaration and Program of Action, with a presentation on the establishment, mandate and activities of the Commission du Niger.

Adoption of UPR reports and NHRI contributions

During the 11th session, the HRC reviewed and adopted 16 country reports on the Universal Periodic Review (UPR).

Out of 9 A status accredited NHRIs concerned, 7 institutions took the opportunity to contribute to the deliberations with an oral intervention prior to the adoption of the UPR reports.

These institutions include: the German Institute for Human Rights, through the ICC Geneva Representative; the Canadian Human Rights Commission; the Comite Senegalais des Droits de l’Homme; the Ombudsman of Azerbaijan; the National Commission on Human Rights of Mexico; the Jordan Center for Human Rights; and the Commission on Human Rights of Malaysia (Suhakam).

While commending their respective governments on progress achieved through the UPR process, all NHRIs highlighted key priorities on which they would have welcomed a stronger commitment, on such issues as the ratification of international human rights instruments, a broader and more inclusive UPR national consultation process and the implementation of the Declaration on the Rights of Indigenous Peoples.

NHRIs that took the floor also referred to their role and responsibility to contribute to all stages of the UPR process and specifically in terms of monitoring the implementation of UPR recommendations.

Furthermore, the German Institute for Human Rights highlighted three issues by which the UPR process could be improved: 1) rejections of particular recommendations should be treated as an exception deserving an explanation; 2) the UPR should always be seen in conjunction with other human rights mechanisms, such as treaty bodies or special procedures and therefore those UPR recommendations which – explicitly or implicitly – are based on concluding observations of treaty bodies or the findings of special procedures mandate holders should always deserve additional attention; and 3) it should become a regular part of the UPR process that government give information about whether, how and when such consultation processes concerning the adoption of the list of UPR recommendations have taken place.

In addition to oral interventions delivered in the HRC plenary, NHRI activities included meetings on the UPR with key stakeholders such as State representatives, non-governmental organizations, OHCHR staff, as well as with the ICC Geneva Representative.

After the session: Recommendations

The ICC has played an important role in the work of the HRC and its mechanisms, to support increased awareness about the roles and activities of NHRIs, and to support the participation of NHRIs in HRC processes.

There are important contributions the ICC can continue to make in support of NHRIs through the HRC and its mechanisms.