The CHR was established in 1946 by the Economic and Social Council (ECOSOC) according to Article 68 of the UN Charter [10,11]. The CHR was given a fairly broad mandate, including: the development of a universal bill of rights; binding and/or non-binding instruments on civil liberties; instruments address the rights of different groups, such as women and minorities; prevention of all forms of discrimination; as well as other human rights issues.

Although the initial task of the CHR was to elaborate minimum standards, there gradually emerged new tasks, and thus the directions of the work of the CHR can be divided into three main groups: (i) standard-setting activity; (ii) implementation of the elaborated standards; and (iii) holding discussions in the field of human rights [27].

The CHR’s first, and probably one of its most significant, outputs was the drafting of the Universal Declaration of Human Rights (UDHR) [33]; described as the “jewel in the crown”, [23, P. 48] “the most important UN resolution of all time [... which has become ...] the ‘mother’ of all human rights instruments” [27, P. 809, 811] and many national constitutions. It was a product of the organisation’s early years, when “the international political climate was still rather conducive to its aims” [27, P. 809, 811].

It should be noted that the UDHR “is considered to set the standard in representing the minimum norms of customary international law in international human rights. [...] The UDHR has had considerable impact on the shaping of later human rights treaties, municipal law and even state constitutions” [20, P. 12]. And “[n]otwithstanding its age the [UDHR] remains a remarkable instrument [containing] a remarkable array of rights” [23, P. 82–83].

After the UDHR, the CHR drafted a series of serious human rights treaties including the International Convention on the Elimination of All Forms of Racial Discrimination (1965), International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (1966), Convention on the Elimination of All Forms of Discrimination against Women (1979), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), Convention on the Rights of the Child (1989), International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), and Convention on the Rights of Persons with Disabilities (2006). “In this way an impressive and broadly encompassing framework for international human rights protection came into place.” [27, P. 809–811]. “Even today this standard-setting function continues to be important” [29, P. 742].

As mentioned above, the CHR’s next area of activity was overseeing the implementation of these standards. In accordance with this aim, the CHR instituted “an extensive network of monitoring mechanisms, such as reporting procedures, working groups, special rapporteurs, independent experts, field operations, motions, and, in some fields, complaints procedures.” [27, P. 809–811].

It should be noted that the creation of the system of special procedures was not an easy or straightforward processes. The CHR finally introduced this complex system twenty years after its inception; thus 1946–1967 is generally described as an ‘era of inaction’, a time during which the CHR conceived itself as a technical body dealing with the development of the human rights standards [16, P. 93, 96].

It should also be mentioned that the political context of that period, specifically the discord between Eastern and Western countries, also affected the situation [4, P. 129–142].

When an ‘ideologically neutral environment’ emerged following the end of the Cold War, a new phase for the monitoring system began. “This new era in international relations seemed to offer unprecedented opportunities for the implementation of the doctrine of human rights in an ideologically neutral environment” [17, 93–99]. The UN finally created the post of High Commissioner for Human Rights, which had been proposed back in 1950 but had met with strong opposition on the part of member States [33, P. 767–768]. However, Jeroen Gutter also observes that although since the 1993 World Conference on Human Rights, important progress has been made in terms of coordinating the actions of the different thematic and country mandates [...] [t]he relative success of the special procedures has also generated new problems and challenges [...] [17, 93, 102].

The challenges the special procedures faced with can be enumerated as follows:

1) The sudden introduction of numerous special procedures caused an organisational overload, as proportional funding and/or staff resources had not been allocated;

2) Issues around the further development of the system; the improvement of State cooperation, effective follow-up activity, consolidation of the capacity of special procedures, etc;

3) Conflict among regional groups ultimately undermined the credibility of the special procedures;

4) The so-called ‘negative reform agenda’; according to which the effective procedures could be terminated under so-called ‘rationalisation’;

5) The attempt to limit the scope of the special procedures mandate: on communication, urgent appeals and on-site visits [16, P. 208, 17, P. 93, 34, P. 525–527, 28, P. 882, 894].

Regarding the third direction of the CHR’s work, it can be noted that, as Nico Schrijver affirms, the CHR acted as an international human rights discussions forum, as it was tasked by ECOSOC [9] to co-ordinate activities in this field within the UN system [27, P. 809–812].

When discussing the activity of the CHR, it is also important to examine the interest shown by some countries in its work, and their concerns on human rights. Thus it is important to note the number of members and the composition of the CHR, as this was not static. With just 18 original members, the organisation ultimately grew to 53 members in 1992. The composition of the CHR also changed; it “evolved from an originally Western-dominated body towards one more representative of the world as a whole [...] Many states not on the [CHR] also wished to participate in its proceedings [...]”[27, P. 809–812]. Furthermore, there was an increasing number of non-governmental organizations (NGOs) demonstrating particular interest in the work of the CHR. There was a unique opportunity for NGO involvement within the UN machinery in the sphere of human rights issues [27, P. 809–812]. It is also worth mentioning that “NGOs have played a crucial role in the creation of the […] international system of protection and promotion of human rights. [Such a participation was] essential […] especially in the fields of standard setting and the supervision of the implementation of human rights at the domestic level” [12, P.547, 548].

Despite these important developments and the positive achievements of the CHR, it nonetheless faced significant criticism for its failure to adequately fulfil its functions. It was claimed that “[t]he malfunctioning of the CHR [had] meant that human rights concerns [had] been treated ineffectively and in a biased manner” [22, P. 15, 16]. Ladan Rahmani-Ocora also writes that the CHR “came to resemble a club where friendships easily overlooked wrongdoing” [22, P. 15, 16]. She asserts that “[a] record of selectivity and double standards tarnished its reputation, and its membership has often included notorious political regimes that were themselves major perpetrators of human rights abuses” [22, 15].

Generalizing the criticisms addressed to the CHR, it may be possible to group them into three categories, as shown below:

1) challenges on substantial matters – polarization in the CHR by increasing the number of group formations, causing the CHR to serve particular group interests, hindering the adoption of objective and unbiased acts [27, P. 809–811, 23, P. 658]; in other words, politicisation and selectivity, ultimately resulting in affairs only tangentially related to the protection and promotion of human rights [26, P. 41, 45], consideration of CHR membership by some states as a tool to circumvent criticisms towards them and by which to criticise other states rather than as a mechanism to strengthen human rights [24];

2) challenges on technical issues – limited meeting time and facilities (the CHR held six week session per year with limited services) coupled with ever-expanding agendas; as well as the problem of allocating too much time to procedural issues [27, P. 809–811, 22, P. 15, 16 ]. The CHR was necessarily limited in its capacity to address developments, and reportedly many delegations did not have opportunity to effectively participate in the debates and negotiations [26, P. 41, 45].

3) challenges on credibility – as a consequence of the issues raised in the first two categories, the credibility and professionalism of the CRH were put into question. It was claimed that “[the CHR] cannot be credible if it is seen to be maintaining double standards in addressing human rights concerns” [24]. Moreover it also was considered as “a shadow on the reputation of the [UN] system as a whole” [25].

It is also worth mentioning that, as Nico Schrijver aptly observes, ‘[w]ith the fine-tuning of human rights standards and the growing interest in and concern over human rights, the contrast between ideal and reality sharpened. It [...] led to heightened expectations of the work of the [CHR] and public dismay if these were not met.” [27, P. 812–813]. Schrijver also asserts that “[t]his [...] made the [CHR] a popular target in general attacks on the [UN] because of its perceived malfunctioning.” [27, P. 812–813]. In this regard Nazila Ghanea also states that, “the CHR lost its integrity and direction over time; with much of its membership decisions, powers and focus coming to be fuelled by disreputable goals rather than motivated by the aim of promoting, protecting and advancing human rights.” [14, P. 695, 697–698].

AS a result of the issues raised above, and in order to strengthen the human rights machinery of the UN, it became necessary to replace the CHR with a new, more competent human rights body that would enjoy a higher instutional status. Thus in 2006 the UN General Assembly established the HRC in replacement of the CHR [31]. However, this institutional reform was not unanimously accepted by UN

member States [26, P. 41, 44]. There also arose questions about how, and indeed whether, the HRC would perform more successfully than its predecessor in terms of surmounting the multiple obstacles in play [22, P. 15, 26, P. 41]. This matter will be discussed in detail below.

Nonetheless, summarizing the activity of the CHR it would perhaps be fair to agree with the assessment by Cees Flinterman and Peter Baehr, according to which, “despite all its [...] shortcomings, [the CHR] has a proud history in the creation, consolidation and gradual strengthening of the present international system of protection and promotion of human rights” [12, P. 547]. In other words, the CHR “made a very important contribution to human rights standard setting, to the development of the UN institutional capacity to promote and protect human rights and, in many national situations, to significant improvements in the protection of human rights”. [26, P. 41, 42].

The United Nations Human Rights Council: a new body, innovative functions and specific challenges

As mentioned above, the HRC was established to replace the CHR, to act at a higher level with new functions and a more senior status. “This enhanced status for the [HRC] is intended to have the effect of making its deliberations more authoritative, visible and influential within the United Nations as well as outside it” [5, P. 121, 125].

The HRC builds its work on “the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights” [31].

It was presumed that the HRC would “preserve and build on its achievements and to redress its shortcomings” [31]. Thus the HRC was accorded new and broader competences in completely different dimensions, as summarised below.

1) First of all, it must be noted that the status of the HRC is considerably higher than that of the CHR, as the HRC is a subsidiary organ of the General Assembly [31], while the CHR was subordinate to ECOSOC. It is also worth mentioning that the HRC would be much more powerful if it was promoted to the status of a main UN body. This matter will be reviewed within five years of its activity.

2) The HRC is slightly smaller than the CHR, with 47 rather than 53 members. The Resolution does require that among members there must be equitable geographical distribution. Additionally, states can only be elected for two consecutive terms [31]. It is also interesting that although the number of the seats for the Western countries has been slightly reduced in comparison with the CHR, as Nico Schrijver states, “the Western states are increasingly close to Eastern Europe following the ending of the Cold War, and they have increasing co-operation in international institutions [as well and t]ogether they have [...] potentially strong representation on the [HRC – 28 %]” [27, P. 815–816].

3) The election procedure for membership is also different, as the members are “elected directly and individually by secret ballot by the majority of the members of the General Assembly” [31]; this allows for the participation of all member states.

4) The extension of the length and frequency of the meetings is another of the remarkable new features of the HRC. It is required to have “no fewer than three sessions per year […] for a total duration of no less than ten weeks.” [31]. The HRC can also convene special sessions on urgent matters.

5) One of the most striking new features of the HRC is the Universal Periodic Review (UPR), a peer-review system which monitors “the fulfilment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States” [31]. This “peer review [...] would enhance the credibility and legitimacy of international human rights monitoring. [... It] does not require a complex system and should complement the treaty body system” [22, P. 15, 18]. The UPR mechanism will be discussed in greater detail below.

6) It is also noteworthy that the HRC was accorded the discretion to “assume, review and, where necessary, improve and rationalize all mandates, mechanisms, functions and responsibilities of the [CHR] in order to maintain a system of special procedures, expert advice and a complaint procedure” [31].

7) It is furthermore vital to note that the HRC attaches particular importance to the voice of NGOs, as well as national human rights institutions [31]. “NGOs have been active participants in the activities of the [HRC] from the outset.” [26, P. 41, 66]. It goes without saying that “[t]he ability of NGOs to be involved, contribute to the debates, and participate in the sessions of the [HRC] will be indispensable to ensuring accountability in the new structure” [22, P. 15, 19, 21, P. 9, 10].

It should also be mentioned that following its inception, the HRC established an Advisory Committee, consisting of 18 independent experts, to replace the former subcommittee of the CHR. In order to maintain the individual complaints procedure, the Committee was requested to establish working groups on communications and on specific situations as required [27, P. 809, 819].

Taking into consideration the main developments and innovations in the scope of the activity of the HRC as outlined above, it goes without saying that the HRC intends to continue the standard-setting and monitoring activities of the CHR, and perhaps to a higher level.

Regarding the standard setting activity of the HRC, it must first of all be mentioned that the HRC “followed the distinguished standard-setting tradition of the [CHR] by adopting two important instruments at its first session [: 1)] International Convention for the Protection of All Persons from Enforced Disappearance [7] [; 2)] UN Declaration on the Rights of Indigenous Peoples [7, 26, P. 41, 55, 32, P, 29, 37].

These documents are considered to be vital instruments for the protection of human rights: the “Convention will fill a major gap in existing human rights standards, and the Declaration will set human rights standards crucial for the dignity and well-being of the world’s indigenous peoples” [26, P. 41, 45,].

Furthermore, the HRC elaborated the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights [2]. The HRC also seeks to to study the content and scope of the substantive gaps in existing international instruments to combat racism, racial discrimination, xenophobia and related intolerance in order to produce a document with concrete recommendations [26, P. 41, 45]. It is working to draft “an optional protocol to the International Convention on the Elimination of All Forms of Racial Discrimination or the adoption of other standard-setting instruments” [2].

It may also be important to emphasise that the substantive activity of the HRC in recent years has also included addressing the urgent human rights situations that have arisen in Palestine, the Middle East, Darfur, Sri Lanka, and Zimbabwe, among others [27, P. 809, 819–820, 13, P. 81].

As has already been mentioned, the monitoring of human rights situations is one of the main directions of the activity of the HRC. This focus is enabled by newly created institutional mechanisms.

The UPR is designed to be “a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity-building needs” [31]. A further key component of this tool is the “‘peer review’ function to ensure the universal scrutiny of all UN Member States and to help avoid […] politicisation and selectivity” [26, P. 41, 46].

As a unique, multilateral, and cooperative mechanism in the field of human rights, the UPR provides an objective assessment of the human rights situation in countries around the world. Furthermore, it provides a useful platform for NGOs, national human rights institutions, as well as for independent experts and human rights defenders to contribute to the discourse. It also serves as a forum to share best practices and to improve collaboration in order to protect and promote human rights, as well as for making voluntary commitments and pledges [27, P. 809, 819].

While it is difficult to conduct a comprehensive evaluation of the impact of the UPR, specific positive achievements can be noted: for example, the active participation of the Office of the High Commissioner for Human Rights in developing documents; lively participation of delegates in interactive discussions; and participation by member States in the work of so-called troikas, which allow them to access more information on the human rights issues in other countries [8, P. 721, 733].

In relation to the special procedures under the auspices of the HRC, it is first of all worth mentioning that the HRC “considered and discussed the special procedures’ reports in unprecedented depth.” [26, P. 41, 56].

It must also be noted that the HRC decided to maintain the abovementioned tools inherited from the CHR. According to Patrizia Scannella and Peter Splinter, the “recognition accorded by governments from all regions to the solid accomplishments of the special procedures is testimony to the importance of the [HRC] maintaining a system of special procedures that is independent, innovative, responsive and flexible” [26, P. 41, 56]. Amrita Mukherjee also states accurately that “[t]he multiplicity of procedures and their broad scope of influence suggest a highly developed system of protection [...].” [20, P. 9].

It is worth noting in this regard that the reviewing of the special procedures should not necessarily mean simply preserving the existing system; this system has to be considerably improved in order that it can become comprehensive and coherent; the mandate-holders should react to human rights violations promptly within the scope of their mandate. [26, P. 59–60, P. 73, 18, 79–80].

Perhaps the most innovative and positive feature of the HRC’s special procedures is that the HRC has “engaged in substantive interactive dialogues with the special procedures under improved procedures that involved participation by governments, NGOs and national human rights institutions from all regions. […] The NGOs were able to raise country concerns in those dialogues […].”[26, P. 41, 57].

It should also be highlighted that the HRC has elaborated a Code of Conduct for Special Procedures Mandate-holders of the Human Rights Council [1], considered by some authors as a matter of concern requiring immediate attention, due to the perceived risk that it could ultimately impose unnecessary control on the mandate holders [27, P. 809, 819]. The Code of Conduct “can also be seen as a means to restrict the independence and responsiveness of the special procedures” [26, P. 41, 59]. Notwithstanding the provision that envisages the main purpose of the above mentioned Code as “[enhancing] the effectiveness of the system of special procedures by defining the standards of ethical behaviour and professional conduct that […] mandate-holders of the [HRC] shall observe whilst discharging their mandates” [1, 6, P. 323, 327], and taking into consideration that the special procedures are to serve as the central link in the work of the HRC, it must be stressed that the use of independent experts is vital for the HRC. This will allow the HRC – and ultimately the UN – to protect human rights in all parts of the world without compromise, and to address all human rights violations promptly. [26, P. 41, 59].

It should also be noted that under the HRC, the special procedures system encounters similar (if not identical) problems as when it was part of the CHR, which were discussed in the previous section. At this point it may be necessary to draw out some of the defining characteristics of these problems now arising under the auspices of the HRC. First of all, it is important to mention that the system for appointing mandates must undergo a process of streamlining and reform in order to eliminate any overlaps in function, as well as to fill the gaps. The selection and nomination processes of mandate holders also needs to be improved by ensuring a balance in terms of geographical distribution and gender representation, as well as assigning limited timeframes for the holding of mandates. The special procedures must also coordinate their work with other UN human rights bodies, as well as with the UPR mechanism, with a view to broader organisational collaboration [3, P. 216–219, 17, P. 93, 105–106]. The functionality of the special procedures system is not only aspect of the HRC that has been challenged. The HRC, despite its outstanding achievements, and the innovative techniques it has introduced, also faces with significant challenges in relation to its general activity. To paraphrase Nico Schrijver, these challenges first of all reflect the difficulty – and necessity – of maintaining a balance between values such as international human rights – national sovereignty; a universal human rights bo-dy – a representative body; individual experts – country representatives; and finally robust criticisms –co-operative approach [27, P. 809, 823].

According to Patrizia Scannella and Peter Splinter, the HRC is inherently political on the grounds that it consists of governments. They also assert that the HRC “has inherited from the [CHR] a working environment haunted by sirens of short-term political advantage and low levels of trust.” [26, P. 41, 72]. The authors further note that “[t]here are some signs of true willingness to improve the working environment, but much more effort is necessary if the [HRC] is to work under conditions favourable to success in its institution-building.” [26, P. 41, 72]. They also affirm that [i]f cooperation in the promotion and protection of human rights is to get the better of narrow short-term political self-interests, it will be important that the [HRC] develops methods of work, procedures and institutional mechanisms, such as a robust [UPR] mechanism and a strengthened system of special procedures, that encourage that cooperation [26, P. 41, 72].

Dealing with country situations will be one of the most notable challenges faced by the HRC, as the vast majority of the seat holders are reluctant to address such issues. Thus in order to examine human rights violations in specific countries, there must be mutual consent between certain coalitions in the HRC [26, P. 41, 72]. It is important to note that “this will require that methods and means are devised to ensure that country situations can be addressed in ways that do not easily lend themselves to credible allegations of selectivity and political instrumentalisation by the countries concerned.” [26, P. 41, 72].

It is also interesting to note that among other challenges, two practical measures are highlighted: first, the limited seating area allocated for NGOs, a in order that they may actively participate in HRC meetings; and second, the failure to widely disseminate updates and information about HRC activity via radio broadcast to ensure a broader awareness among countries with poor internet infrastructure and/or access [26, P. 66, 68].

It should be mentioned that while the achievements of the HRC and the improvements to the human rights situations in various fields are noted, its success in addressing the shortcomings of its institutional predecessor remains under question. This question puts pressure on the members of the HRC to build up a strong portfolio of work that consolidates the HRC and bestows upon it a reputation of a strong and reliable organization that compares favourably with the CHR, meeting the expectations of all victims of human rights violations. Perhaps the main goals in this direction should be the implementation of decisions and maintaining quality rather than quantity with regard to activity. [26, P. 69–71].

It should also be taken into consideration that, as Jeroen Gutter rightly observes, “human rights still is politics and the implementation of human rights is not a politically neutral process that can be approached in an entirely legalistic, bureaucratic and scientific (rational) manner.” He also appeals to the need “to be pragmatic and above all to be patient in [the] endeavours to implement the [...] reform[s ...].” [17, P. 93, 107].

Conclusion

The current article attempts to provide a critical evaluation of the work of the CHR and HRC. To that end, and in the light of the leading legal scholarship in the field, the particular features, achievements and challenges of both bodies have been discussed and analysed individually. Additionally, the second section of the paper presented a comparative analysis, drawing out the key changes brought by the HRC and its new dimensions.

The first section covered the historical evolution of the CHR, as well as its fundamental achievements, standard setting activity and special procedures system, along with the challenges it faced. This section also sought to provide a clear picture of the situation with regard to the replacement of this body with the HRC. The second section of the article provides a general assessment of the specific characteristics of the newly established body – the HRC. In particular, its innovative features, standard setting activity and special procedures, as well as the UPR mechanism, were outlined, concluding with a discussion of the particular challenges it faces.

To conclude the observations undertaken above, the following statements are deemed to be the crucial findings:

– taking into consideration the political situation, namely the continuing discord among different states and/or state groups, the CHR functioned successfully and managed to create a strong and practical international human rights framework;

– although some member states attempted to use the CHR as a tool with which to achieve their own political objectives across various fields, the CHR was able to successfully circumvent this (at least to some extent) and protect, promote and advance human rights across the whole world;

– the heavy criticism of the CHR as well as the political endeavours to distort its activity, which were manifested in more serious forms in early 2000s, ultimately led to its abolition and the subsequent creation of the HRC;

– the HRC – a new body accorded a higher status and enhanced functions provides an important

opportunity to redress the shortcomings of the CHR as well as to build upon its positive practices and historical achievements;

– during the short period of its activity to date, the HRC has demonstrated its ability to meet expectations – with regard to its standard setting and special procedures duties, inherited from the CHR, the HRC has successfully developed the UPR as a mechanism through which to protect and promote human rights; the UPR has opened new horizons for NGOs and national human rights institutions in terms of institutional participation;

– the HRC also faces challenges, some of which are the product of the political interests of individual states, as HRC members are government representatives. However, it is presumed that the HRC can overcome this problem with the support of NGOs and national human rights institutions;

– although there were and still are attempts to use the human rights body as a tool for political purposes, in other words to make it biased, neither the CHR’s nor HRC’s standard setting and/or monitoring activity should be underestimated or criticised for being biased, as the yields of the activities outlined above still protect human rights to a decent level.

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