Proceedings of the Standing Senate Committee on
Issue 15 - Evidence - February 12, 2007
OTTAWA, Monday, February 12, 2007
The Standing Senate Committee on Human Rights met this day at 5:06 p.m. to monitor issues relating to human
rights and, inter alia, to review the machinery of government dealing with Canada's international and national human
Senator A. Raynell Andreychuk (Chairman) in the chair.
The Chairman: We are gathered to start the first of our hearings with respect to monitoring issues related to human
rights, and inter alia, to review the machinery of government dealing with Canada's international and national human
That was our original, specific order of reference from the Senate when the Standing Senate Committee on Human
Rights undertook to review the machinery of human rights and its implementation and use in Canada. We were
looking at international and national machinery — how they work together. Are they a seamless web or two distinct
tracks? We were looking at the machinery rather than specific cases of human rights' issues.
We produced a report called ``Promises to Keep,'' which outlined deficiencies and some strengths within our present
human rights system. From time to time, we have continued to look at varying issues with respect to the machinery of
We have been monitoring and watching the change of the United Nations Human Rights Commission into a
council. We thought, as the new session will begin in March, I believe, that it would be an opportune time to acquaint
ourselves with some of the aspects of the changes between what used to be the commission — and we had worked
toward a commission and its operation in furthering human rights — to, now, the new council. We are pleased that
there are some experts — foreign policy experts, not just human rights experts — who have been following this and can
share their perspectives with us.
Honourable senators, you were provided with the historical background, a briefing compiled by Laura Barnet to
bring you up to speed on the actual machinery and how it has changed, culminating in the council. That is for your use
as a backgrounder, both for the hearings we will hold in Canada and for our visitation in Geneva.
Today, we have with us Professor Akhavan, whose biography is in your materials. He is a professor at the
University of McGill, who teaches and researches in areas of public and international law, international criminal law
and transitional justice, with a particular interest in human rights and multiculturalism, war crimes prosecutions, UN
reform and the prevention of genocide.
We also have Mr. Paul Heinbecker, who is well known to the Senate hearings, former Canadian ambassador and
permanent representative to the United Nations and former Ambassador to Germany. He is presently a Director of
Laurier Centre for Global Relations, Governance and Policy and is a Distinguished Fellow, International Relations, at
the independent research Centre for International Governance Innovation. Welcome to our two panellists. I believe
Mr. Heinbecker will lead off.
Welcome to the committee. You can share any perspectives on human rights, particularly with the workings of the
international machinery within the UN system — and also within the context of UN reform.
Paul Heinbecker, Distinguished Fellow, International Relations, Centre for International Governance Innovation
(CIGI): Thank you. The best help I can be is to talk a bit about the UN and UN reform and situate the reform of the
United Nations Human Rights Council in a larger context.
There are two or three mega-issues to bear in mind when considering UN reform and where all of this fits into that
reform. First, the international community has never been more divided than it is today, and there has never been less
consensus on issues. In the UN, there is not even consensus on the main issues, let alone what should be done about
For the original signers of the UN Charter, collective security is a priority. For countries such as the United States,
terrorism is the issue beyond all others, the one that is paramount. For the G77 countries, 130 or so, the issue is about
development and not about security. As far as those countries are concerned, the emphasis should be placed on and the
resources should go to development. Security is more a matter for the larger and richer countries to worry about. In
reality, the citizens of the countries that will benefit most come from among the G77, but many still do not accept that
notion of the responsibility to protect. Rather, they see it as a kind of diversion. All of the unfulfilled development
assistance promises made by rich countries are seen as betrayals and indications of their lack of interest.
Even among the rich countries, that would say that collective security and the UN Security Council, UNSC, is the
most important issue, there is no consensus. You will likely recall Mr. Putin's discussion at a security conference in
Munich a few days ago when he criticized the United States for unilateralism. That is fundamentally how most of the
membership sees it, even among the western countries. There is a great deal of anxiety about the direction of U.S.
foreign policy, in particular, vis-à-vis Iran and the United Nations. If not yet, there will soon be at least two carrier
groups in the Persian Gulf, and there is talk of the arrival of a third. Some observers say that within the year there will
be some sort of attack on Iran.
I say that not only to criticize the United States, but also to say that it is part of the framework in which all else is
considered. There will be no discussion of human rights that does not take into account these larger issues. The whole
UN reform fight — and there is a fight — is a kind of politics by other means. There is neither agreement on the Arab-
Israeli issue nor on the Iraq issue, and there is suspicion about what the Iranians are up to and what the Americans are
up to about the Iranians. The whole situation is fraught with disagreement. Those larger — or as some might say,
``extraneous'' — issues are pulled in during the attempt to reform. The UN Human Rights Council becomes a proxy
for another kind of issue, and that kind of fighting can be seen regularly.
Second, we hear a great deal about accountability at the UN, the importance of the UN Secretariat being
accountable and the failures of the former Secretary-General Kofi Annan to be accountable. People do not
understand, even with the investigation led by former U.S. Federal Reserve Chairman Paul Volcker into the oil-for-
food scandal, that no one is accountable at the UN. That is the way the place was designed. The secretary-general is the
secretary-general; he is the chief administrative officer of the organization, not the chief executive officer. He does not
run the UN, the Security Council, the General Assembly or the Economic and Social Council. He runs the secretariat,
and that is all.
When people think about the UN, they associate it with systems with which they are more familiar. The
Government of Canada has a prime minister who is responsible and accountable for everything that goes on with
respect to the Government of Canada; Nortel has a CEO who is accountable for everything that goes on at Nortel.
However, at the UN, no one is accountable. The Security Council is not the cabinet of the UN but a separate
institution. The UNSC makes its own decisions that do not have to be referred to and/or ratified by the UN General
Assembly. If anyone is in charge of the UN, it is the permanent five members of the Security Council.
The oil-for-food scandal was a politically motivated smear of the UN for not supporting the war in Iraq. It was
nothing more than that. It seems that $140,000 has gone missing in the oil-for-food budget, which totalled some $60
billion over its lifetime. The hearings in the U.S. Congress that took place a few days earlier under the chairmanship of
Congressman Waxman, from California, into the missing $12 billion could not be held until the Republicans lost
control of the House. The Coalition Provisional Authority is unable to say what happened to $12 billion, $9 billion of
which was given by the UN Oil-for-Food program to disburse at the end of the war.
The UN is on the hook for $140,000 and the U.S. on the hook for $12 billion. There was no Congressional hearing
into the latter for three years, even though the money was known to be missing. All the talk you heard about Kofi
Annan and about what a terrible place the UN is, remember that $140,000 is missing out of a budget that at one time
was $60 billion. The entire business of oil smuggling and oil payoffs were all misdeeds carried out by companies, many
from P5 countries and Saddam Hussein, in contravention of successive UN resolutions. They blamed the UN
Secretariat for it, although it was trying to monitor the situation. It is not the first time that the members have let the
secretariat take the rap: Rwanda was another case.
I have said enough about that. The point is that the UN Secretary-General cannot be held accountable for
something for which he is not accountable, and that includes the functioning of the UN Human Rights Council. Nor
can Ms. Louise Arbour be held accountable for behaviour of member countries. The problems infecting the Human
Rights Council, and everything else in the UN, are the larger international geo-strategic problems that are not being
resolved and on which there is huge disagreement internationally.
As a context, I will leave it at that.
The Chairman: That can take us in many directions. Mr. Akhavan, please proceed.
Mr. Payam Akhavan, Associate Professor, Faculty of Law, McGill University: Madam Chairman, thank you for
having me here. It is both a great pleasure and a very great privilege to share with you some views on the United
Nations Human Rights Council.
I will follow on the overarching context that Mr. Heinbecker capably put before you to speak about some of the
central features of the Human Rights Council in relation to the Human Rights Commission. I apologize if I repeat
facts that you may already know. I am not sufficiently knowledgeable about what you have already discussed. I will
then speak about particular aspects of institutional reform and will end by making specific recommendations on how
Canada can adjust its relation to this new body.
When the resolution on the Human Rights Council was finally tabled for adoption by the General Assembly in
April of 2006, Ambassador John Bolton of the United States expressed his disapproval. You know that the United
States, together with Israel, Palau, Micronesia and the Marshall Islands, voted against the council, believing that it did
not go far enough in the adjustments necessary to leave behind the unfortunate past that characterized the commission.
Ambassador Bolton said that we intended to have a butterfly but instead have a caterpillar with lipstick. This is yet
another expression of the poetic nature of Ambassador Bolton's metaphors.
While the council has clearly not moved as far as we would have liked it to, there are significant differences — at
least structurally — between this and the predecessor, which is cause for modest but cautious hope. I will briefly speak
about some of those elements.
It is one thing to reconstruct structures; it is yet another thing to change the culture of international diplomacy. At
the end of the day, if we do not leave bad political habits behind, structural reform will only carry us so far. It is in that
respect that I believe Canada can play an important leadership role as it struggles to recreate its international identity
in the post-9/11 world.
As an example of how old habits die hard, I would like to read sample paragraphs from resolutions the Human
Rights Council has adopted thus far. The council has had four special sessions. It is now a regularly constituted body, a
permanent body. Therefore, unlike the commission, it does not meet periodically but is a standing body, which, in
itself, is a great improvement. It is a subsidiary organ of the General Assembly rather than that of the Economic and
Social Council, which means, structurally, it is being mainstreamed within the UN system, another positive
However, the politics seem to be a repetition of the past. From the four special sessions thus far, three have focused
in one way or another on Israel and only one, after tremendous international pressure, on the case of Darfur. If one
looks globally at the situation in the Democratic Republic of Congo, in Myanmar and in so many countries around the
world, one begins to see this is very much an expression of the sort of political selectivity that the Human Rights
Council should have moved beyond in relation to the commission.
One of the paragraphs of the resolution establishing the Human Rights Council says that the work of the council
shall be guided by the principles of universality, impartiality, objectivity and non-selectivity. That is the essence of what
we should be striving for.
By way of example, we have special session resolution S-3/1 of November 15, 2006, which, in paragraph 1, the
Human Rights Council, I quote, ``Expresses its shock at the horror of Israeli targeting and killing of Palestinian
civilians . . .''; and in paragraph 4, ``Expresses its alarm at the gross and systematic violations of human rights of the
Palestinian people . . . .''
The question is not whether there are not legitimate human rights issues. However, contrast this language with the
following language in relation to Darfur. The Human Rights Council in paragraph 1 of decision S-4/101 of December
13, 2006, ``Expresses its grave concern regarding the seriousness of the human rights and humanitarian situation in
Darfur . . . .'' That is the sole paragraph which, in a very oblique way, without condemning the Sudanese government,
expresses concern. In the next paragraph, it welcomes the cooperation established by the Government of Sudan.
It is scandalous when one knows that, at last count, 200,000 people were dead and 2 million displaced in Darfur.
Many would say that number is very much dated, that it is probably 400,000 dead and 4 million displaced.
This is a very unfortunate beginning from the point of view of the transformation of political culture. Of course,
Canada voted appropriately on these resolutions, but, once again, because of the numerical inferiority of the western
group, was unable to have any significant impact on the outcome.
Leaving this problem aside, I want to speak about what I believe are the promises of some of the structural changes.
The most significant change is the universal periodic review mechanism that is envisaged in the resolution establishing
the council. This is a matter of great complexity. I know my time is limited, so I will only deal with it in broad strokes.
It is significant that the General Assembly envisages that there will be, on a periodic basis, a review of the human
rights record of each and every member state of the United Nations. This is truly a phenomenal development. We
know, for example, that every year the United States does an annual review of the human rights records of countries
around the world. The importance of this is that it is potentially a unique mechanism by which we can depoliticize the
way in which human rights situations are considered by the council, which is at the essence of creating a credible
One of the first points is to try to influence the process of developing the practical mechanisms through which the
review will take place. The resolution provides that it will be a one-year period during which this mechanism will be
formulated. Therefore, we should have some idea of what this mechanism is within the next two or three months. It
would be extremely important to keep this review process out of the hands of member states, to either entrust the task
to the Office of the High Commissioner for Human Rights or to create a working group of eminent persons whose
reputation in the field is beyond reproach. Above all, one must keep this disentangled from the politicization that
would be created if member states were involved.
The universal periodic review must be seen within the context of two other dimensions. One is the political organs,
organs that are not of a judicial or quasi-judicial nature, such as Security Council or General Assembly referrals of
situations to the council. The other is treaty-based mechanisms, which I understand is also one of the issues your
committee is presently considering.
The universal periodic review cannot be a substitute for other mechanisms, such as special procedures, special
rapporteurs or other mechanisms, which look urgently at situations that require immediate attention. One of the great
challenges of the United Nations is to act in a preventive capacity, rather than waiting until we have violence that
escalates to genocidal proportions, and then, when it is really too late to influence the situation in a positive way, to
adopt resolutions condemning a situation that is already beyond our control.
It is important, in addition to universal periodic review, that there be mechanisms that allow for urgent, expeditious
engagement on situations as they develop because one cannot wait until the next review comes up in three or five years,
or whatever will be the periodic requirement.
The second point is that it is essential to have a graduated response to different situations. We need to understand
that human rights violations cannot just be lumped together in some big abstract concept. Human rights situations
involve different types of violations and different types of government, which, therefore, involve different types of
For instance, if there is a government that in principle is willing to comply but does not have the means, obviously
the appropriate response would be technical co-operation, engagement of that nature. However, if there is a
government that is determined to exterminate its population, clearly one needs a very different approach.
It is important not to reduce the engagement of the Human Rights Council to condemnation. Condemnation is
tempting and easy; engagement is infinitely more difficult. One needs to have both resolutions that condemn bad
practices and also those which encourage good practices.
My final point in relation to the political organs or decision-making procedures is the need for a standing
commission of inquiry. I am not speaking as to whether or not this is politically feasible, but I believe it is,
institutionally, highly desirable.
For example, in relation to the conflict between Israel and Hezbollah over the summer, there was a commission of
inquiry, which was established after the fact, with a very flawed mandate that only looked at one side of the conflict.
Because the mandate was flawed, the commissioners who were eventually appointed were not of such a high calibre.
This happened precisely because those potential commissioners of high reputation would not want to be associated
with such an enterprise.
We now have a commission of inquiry on Darfur, headed by Jody Williams. It is a little too late. This should have
been established quite some time ago. We need a standing commission of inquiry that can immediately be deployed
where it is needed, rather than having to wait several months until people are approached, their availability is inquired
about and then a staff is put together.
We also need a standing commission that avoids politicization and the appointment of people whose credentials are
questionable and who have political agendas. We need a panel of eminent persons who are beyond reproach, whose
function is to engage in fact-finding, as necessary. The essence of an objective procedure is the objective determination
of facts as opposed to speculative accusations that are politicized.
I will now speak about the last part of the issue, the treaty-based mechanism, which is an important pillar, a more
legal or quasi-judicial pillar of the UN human rights enforcement system.
Treaty-based mechanisms, of which there are many, are generally linked to particular treaties, such as the Covenant
on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment. Each of them has a corresponding committee. Forgive me, once again, if I am restating obvious facts.
There are two different functions, and it is important to distinguish between them. One is the submission of periodic
reports by States Parties. Every so many years, States Parties to these treaties must provide a report about their overall
human rights performance.
Then there is a different function altogether of individual petitions, submission by individuals who are citizens of
States Parties and who have exhausted domestic remedies. Of course, the case of Sandra Lovelace Nicholas, who I
understand is a member of this committee, is a perfect instance of how, when one has exhausted domestic remedies —
in this case the Supreme Court of Canada — one can go to the Human Rights Committee. In the case of Canada, it
was to great effect.
One of the problems is the multiplicity of committees. We have a committee on discrimination against women, on
torture and on racial discrimination. There are too many committees, to the point where States Parties — in particular,
developing countries — are simply not able to meet their obligations of submitting reports. There are now almost 1,500
reports that are delayed, that have not yet been submitted. The total number of reports submitted is about 1,200, so
one can see that there is a chronic problem with the submission of these reports. An additional problem is that if these
reports were submitted all at once, the whole system would collapse because the committees do not have the capability
of dealing with so many reports.
There is clear recognition that one needs to rationalize the whole system. Instead of submitting five different reports
to five different bodies when there is clear overlap. The Covenant on Civil and Political Rights is the basic human
rights instrument, at least with respect to civil and political rights. The Convention against Torture is substantively
subsumed by the Covenant on Civil and Political Rights. The Convention on the Elimination of All Forms of
Discrimination against Women may be more elaborate, but the basic principle of non-discrimination with respect to
women is also contained in the Covenant on Civil and Political Rights. Strategically, one must see the covenant as the
basic instrument for building a viable system that consolidates this multiplicity of bodies.
The fact that the Covenant on Civil and Political Rights is almost universally ratified also makes it that much easier.
For example, the Convention on the Elimination of All Forms of Discrimination against Women has not been ratified
by a large number of States Parties — in particular, states in the Islamic world, which have certain reservations; or, if
they have ratified it, they have entered so many substantive reservations on what equal treatment under the law means
that it almost defeats the object and purpose of the convention. There are many reasons why the Covenant on Civil and
Political Rights should be the bedrock on which we build.
Thus far, the emphasis has been on consolidating reporting procedures. Instead of asking a state to submit five
reports, let us just consolidate it into one. However, that is not the real problem. The High Commissioner rightfully
observes that the problem is that when one has such a fragmented system, one does not have the visibility, the
authority and the access that one needs in order to have credible human rights bodies. We need to consolidate not just
reports, but also institutions.
First, we need to develop a long-term vision of what we are trying to achieve. That long-term vision, I would
respectfully submit, is to move, eventually, to the creation of an international court of human rights. As a fundamental
institution of global governance, we need a court of human rights corresponding to the European Court of Human
Rights, the Inter-American Court of Human Rights and these regional institutions.
The question of political feasibility is something else, but we should not lose sight of the long-term objective. We
should let our pragmatic considerations as to political feasibility be guided by this long-term objective.
With a view to developing such judicial mechanisms, we should try to separate the functions of the committee, state
reporting vis-à-vis individual petitions. Individual petitions have a quasi-judicial character, which, over time, could
mature into a more formal judicial procedure.
In terms of Canada's response, other than engagement on these issues, there are two points that I want to suggest.
One is that Canada may consider the appointment of an ambassador-at-large for human rights. The Nordic countries
and the Netherlands have such an institution. The United States has an ambassador-at-large for war crimes issues. It
may be valuable. This is not to say we should create a whole new bureaucracy in foreign affairs, but the point is to have
a focal point in the Canadian government that looks at human rights in a broader context as an essential part of
Canadian foreign policy. My last point is that Canada, by its own actions, has to exercise leadership and establish its
I end by speaking about what transpired at the first meeting of the Human Rights Council when the Iranian
delegation included, among its members, Said Mortazavi, a former prosecutor general of Iran implicated in the torture
and murder of Zahra Kazemi, a Canadian citizen and photojournalist from Montreal. I speak to you today as
someone similarly situated in that I am of Iranian origin.
Now, why do I bring this case? Because, getting back to the question of the political culture and credibility, the
presence of Said Mortazavi was a slap in the face — both to the United Nations and Canada — that someone who is
one of the most notorious torturers in Iran and implicated by an Iranian parliamentary commission in the brutal
murderer of a Canadian citizen would be present at this commission. After some pressure, the Prime Minister rightly
called for the arrest of Said Mortazavi, which sent shock waives among reformists within Iran.
It is just unfortunate that, despite this commendable action, the Canadian government has not followed through to
formally open an investigation against this individual and to issue an indictment. I say this because if we allow
Canadian citizens to be murdered with impunity, what credibility will we have in exercising leadership more globally
on human rights. I apologize for the length of my presentation.
The Chairman: I believe we got the broad general UN reform and the more specific council and that is what we were
looking at. Mr. Heinbecker, you are saying that the UN has never been as diverse as it is now.
Mr. Heinbecker: It has never been both as divided and diverse.
The Chairman: Is it not a fact that for many years it was divided — the East and the West — and one either fell into
one camp or the other? One, particularly in human rights, supported political and civil covenant, the other, the
economic and social. We had the Soviet Union and the West. African countries and Latin American countries found
themselves joining one of those. It took some time to establish the G77.
Is it a better situation and does a country, such as Canada, have more opportunities to influence the UN structures
from day-to-day than it did when it was clearly the East and the West? We were a middle power; we developed that
middle power concept. Are there new mechanisms we should find to influence this more fragmented, divided situation?
Mr. Heinbecker: Looking back, a better choice of word is ``fragmented'' rather than divided. It was divided in two in
the Cold War, but now the West is fragmented. That is partly because of the Iraq war, the ongoing Arab-Israeli
conflict, U.S. unilateralism and the U.S. attitude toward treaties, which is increasingly dismissive of treaties — the
Treaty on the Non-Proliferation of Nuclear Weapons for example.
On that part of the UN membership that used to be the West, there is no longer as much harmony; nor that part
that used to be the East, for that matter. There is considerable disagreement among those former Soviet countries.
However, where one finds the real divisions, which are so plaguing the UN, is in the notion of the hegemon against
the rest. We see that particularly in the G77. It is an explanation for part of the voting that one has seen. There is a
solidarity that people will maintain, even in the face of that which is manifestly not in their interest or even manifestly
wrong. The larger value, for a lot of countries, is to stick together because they feel weak and powerless. They largely
are, but if they seem to feel that if they can stick together, they at least have some kind of clout vis-à-vis the United
States and the other powerful countries.
In those circumstances, what can Canada do? My own assessment of our situation is that we still have a very good
reputation. We have earned that reputation internationally over the years. We have also earned it domestically,
especially with regards to human rights and the generosity we show toward diversity. When I spoke at the UN, I was
always given a polite and attentive hearing. Not every country can say that; lots of countries cannot. I would say right
now, probably Australia would have a hard time getting such a hearing; but nonetheless, we could.
I believe we need to call them as we see them. We should stand for human rights. When we see situations that we
disapprove of, we should say so. When we see situations that we approve of, we should say that as well; we should not
shrink from that. We should ask ourselves now if we are actually doing that. Is calling the reaction of the Israelis to the
Lebanese Hezbollah attack last summer measured? Is that earning us standing in a human rights sense in international
councils? I do not believe so. Is taking a position that is manifestly pro-Israel, described as being pro-Israel, without a
word of criticism very different, in its own way, from what we were hearing from human rights groups? It is not as
egregious evidently. However, if we pick sides and not stand on international law or human rights, we can expect not to
have much influence on the outcome.
My advice is that there is a system of international law, and we should not shrink from defending that system. We
are the ones who helped build it, after all.
Senator Poy: Mr. Heinbecker, I have been listening to a lot that you have said and also observing what has been
happening internationally. You mentioned that there is no one accountable at the United Nations. Aside from what
you just said, that we need to stand up for human rights and justice, do you really believe the UN is still relevant, apart
from just speaking up at the right times?
Mr. Heinbecker: I believe people rightly — but at some level, also mistakenly — look at the UN Security Council
with respect to Darfur and say, ``My God, they cannot even fix Darfur. What good is this organization?'' They lose
sight of the fact that there is a peace-building commission, peacekeeping operations, peace enforcement, a whole body
of law on human rights, support for democracy, a criminal justice system, sustainable development and an
environmental dimension to the UN, none of which you will find in the Charter. These are all innovations. The very
existence of the UN High Commissioner for Human Rights is an innovation. All of these are doing extremely good
Where the UN falls down, interestingly enough, is where the member countries come in to the picture. It is a little bit
like the Walt Kelly saying in the old Pogo cartoons: ``We have met the enemy and he is us.''
The secretariat, generally, and the individual agencies, although they are not perfect, they are human beings after all.
However, they are very talented, very capable people doing the best jobs they can in most circumstances. The failure
comes with the member countries. In saying that, it is very easy to throw out the baby with the bath water. In fact, one
would be throwing out quintuplets with the bath water. There are many UN achievements that are very successful.
When we cannot get agreement in the UN Security Council to do something, then the secretariat and the secretary-
general cannot do anything about that situation. I am referring to, for example, Iraq and Darfur.
Senator Poy: You mentioned that Canada has always had a good reputation at the table at the UN. Are we losing
that with recent events?
Mr. Heinbecker: One would have to do some kind of a survey. My instinctive answer is: Yes, we are. We have been
criticized by the president of the Arab League. One can tolerate criticism; one does not have to agree with it. However,
we are being regarded as becoming increasingly more pro-Israeli, as the government wants us to be perceived. As far as
I am concerned, if the Canadian government wanted to call them the way it saw them, if it would stand up and say,
``This is a violation'' and ``That is a violation,'' that would be an entirely tenable position; but when it stands up and
says, ``This is a violation,'' and that is all it says, then it will undermine our reputation.
Senator Munson: I was not ready to ask this question, but on the other side, the present government has stood up
quite openly in defence of the religious person from China. After living and working in China for five years, I admire
what this government has done in that way. They stood out; they have not played the game that has been played for
some time in dealing with China. On that scale, in that perspective, do we get bonus points in the human rights world
by standing up for an individual who has been incarcerated in China?
Mr. Heinbecker: I believe we do. That is part of what I am talking about. Frankly, with respect to the situation in
China, it can be done in a way that causes a little less collateral damage, but standing up and saying, ``Yes, this is a
Canadian citizen, and this process is not a legitimate process,'' or that we have interests in that process, is something
for which the government should get credit.
Senator Munson: On another issue, you talked about the Sudan situation, the Israel situation and the new Human
Rights Council, with which I am not that familiar. Who holds the pen on writing this up, and when the Human Rights
Council sits down to do its business are there 10 or 160 men and women? How do they come to the resolution in
dealing with the four resolutions with which they have dealt? Whoever holds the pen on this, someone has to agree to
the words being used. As you had described it, in Sudan, it was scandalous because it was soft-pedalling what was
going on there; yet, on the Israeli side, it was very hard-hitting. Do we know how that mechanism works?
Mr. Akhavan: Yes. It has been some years since I left the UN and sought refuge in academia, but I will try to explain
Senator Munson: I sought refuge in the Senate.
Mr. Akhavan: From a structural point of view, there are 47 members in the council. They are selected based on
regional blocks. That is perhaps part of the problem, that there are regional blocks that have certain numbers allocated
to them. One of the criticisms of the council reform, for instance, is that the Americans had wanted to have only 20
members rather than 47, which would make it a more elite group in that only governments with very strong human
rights records would be elected.
Part of the effect of reducing the number from 53 to 47 and conditioning human rights performance is that certain
countries, such as Iran, were not elected even though they ran, and countries, such as Sudan and Zimbabwe, did not
even bother to run because they knew clearly that they would not be elected; but countries, such as Cuba, Saudi Arabia
and Pakistan — countries with questionable human rights records — are members.
How does the voting actually take place? In the case of the Israeli question, for instance, it is almost always a
member of the Organization of the Islamic Conference that will sponsor this resolution. As Ambassador Heinbecker
has pointed out, even if their objective is for political reasons to condemn Israel, when they do it in such a blatantly
one-sided way, they undermine even that interest. When a resolution says that we will only look at Israeli humanitarian
violations on Lebanon, but not look at all at Hezbollah's rocket attacks against Israeli cities, it is so blatantly partisan
that it loses all credibility.
Governments, such as Canada and the western block, obviously try to negotiate with those who are involved, but
since they have a numerical majority, and in the context of what Ambassador Heinbecker explained as a tremendous
antipathy toward the United States, people take particular pleasure in adopting these sorts of resolutions there. There
is a politicization that does not leave room for a more balanced approach.
In practical terms, how does it work? Usually, it will be one state or group of states that will table a resolution. It is a
draft, which is circulated. Very often they have already agreed on a text and ensure that they will get the requisite
number of votes. The degree to which one can actually debate that particular draft will depend on how much
preparation has gone into a developing consensus among a substantial majority before it is circulated.
In this case, countries, such as Canada, will simply be outvoted and there is not much they can do.
Mr. Heinbecker: It is typical of the UN that one country or one group of countries takes the lead. No one concedes
the lead to them; it is assumed. They get together — they care more than others, apparently — and they put down the
resolutions first. Sometimes there are counter-resolutions and much drafting that takes place, but, again, if they have
their ducks lined up, it is not easy.
Senator Munson: Basically, they are ganging up on some other country. If there is nobody accountable, they can do
this and move on.
The Chairman: Professor, under the old commission, if Canada felt very strongly about some human rights situation
or violation, whether it was on a thematic or a country basis, it would do its homework and then start negotiating with
other countries to see if they had the same concerns. If there was a consensus growing, they would then see where the
opposition may come from and see whether they could negotiate it out or how to manage the opposition. Is it working
the same way in the council?
Mr. Akhavan: It is pretty much the same in the council. The difference is that there are six fewer states, which is not a
huge difference — we have gone from 53 to 47 — and some of the most objectionable candidates are no longer
members. Sudan and Zimbabwe do not sit at the same table. However, we still have China and Russia. It may be
subject to debate whether that is good or bad. The same dynamics take place. The only difference here is that there is a
more conscious linkage of membership with human rights records, and the resolution establishing the council requires
that states pledge, as a cost of their membership in the council, to pay particular heed to their human rights record.
It remains to be seen whether those pledges will be observed or not, but the horse-trading remains as before.
The Chairman: That is, to diminish the opposition, to neutralize it or to get an abstention, all of the normal factors
still apply. In other words, politics plays a part.
Mr. Akhavan: Exactly. That is why in the beginning, I was emphasizing that the essence of moving toward an
effective system is to create independent bodies and to increase the power of those bodies vis-à-vis member states.
Member states are for the most part political, and even western liberal democracies that may have a broader
commitment to human rights are will not vote against Saudi Arabia because of the economic interests involved.
Although certain countries are liable to be more politicized, our own part of the world is not necessarily exempt
from that process. In a sense, it relieves us from the burden of the embarrassment of voting against Saudi Arabia when
we have commercial ties by saying that this was an independent commission of inquiry; this was an independent review
mechanism under the Office of the High Commissioner for Human Rights. It is not in our control. The point is how to
create those mechanisms that, in the long term, will gradually depoliticize.
Presently, there is a unique window of opportunity to try to do that, although, as Ambassador Heinbecker said, the
UN is profoundly divided. The council has been established by an overwhelming majority of the General Assembly.
There is now this one-year period in which the universal review mechanism is to be put in place. Now is the time to
strike. Now is the time to exploit the opportunity to create effective mechanisms because, once they become
crystallized, it becomes exceedingly difficult to bring about further reform.
Senator Munson: I am curious about the recommendation. Part of our questions here is about how the government
can make the council more effective. You mentioned Canada might consider an ambassador on human rights. Does
our former ambassador agree with that, and would such an ambassador have the power to deal directly with the
secretary-general or the ambassador now dealing with human rights at the UN?
Mr. Heinbecker: We have an ambassador who is responsible for human rights —and not only human rights — Mr.
Paul Meyer. He is coming to this committee next week. I am not sure he can answer that question, but it would be
interesting to know his views. He is also the ambassador for disarmament and a number of other areas, in Geneva. He
is not full time on this issue. With some deference to him, I feel it would be a good strategy to have a full-time
ambassador who would be situated here rather than in Geneva, go back and forth for these kinds of meetings, but who
would have the staff and support of several departments.
That would be beneficial in a couple of areas. First, it would raise the profile and standing of human rights as a
foreign policy issue. It would also help to translate back into the Canadian system the importance of these human
rights discussions and the necessity for us to get our own house in order. One matter we have not discussed much is
that it is not the easiest task in the world to get Canadians lined up to implement treaties once the federal government
has agreed to them, even when there has been a lot of consultation. We lag in those areas.
Senator Carstairs: We talked briefly about the treaty board mechanisms. My concern is that while it might be a good
idea to make this a more congenial group, I feel that some of the conventions would just get lost. I am referring to the
one we have been working on, which is the Convention on the Rights of the Child, in particular. That happens to have
a large number of signatories, but even a country such as Canada is in clear violation and has been cited over and over
as being in clear violation.
If we intend to make these treaty board mechanisms report up through the council, will that not make a bad
Mr. Akhavan: Yes, that is a good observation. My understanding is that the proposals are not that the treaty-based
mechanisms become subordinated to the council, but that they simply are consolidated. The problem is there are a
multiplicity of treaties and bodies to which states must report. It becomes very cumbersome to have to submit six
different reports to six different bodies with six different reporting guidelines. There has been a rationalization of the
process, for instance, developing standard guidelines for all the bodies to submit consolidated reports. Instead of
having six reports that involve six different appearances, only one report addresses all these different issues.
Therefore, treaties such as the Convention on the Rights of the Child could be included in a consolidated procedure.
The question is whether we should continue to have different mechanisms to deal with these areas. My sense is that
it may be more effective, instead of having this fragmentation, to have one central body that has certain prestige and
authority. When we have too many bodies, none of them cumulatively can have the weight of a single central
In terms of reporting, one could easily have one body that has relative expertise, depending on what issue is being
considered. The rights of the child, for instance, could be incorporated more broadly in the human rights record of a
With respect to individual petitions, however, we must start to move in the long-term direction of a proper judicial
mechanism. We now have a quasi-judicial procedure. The cost may be that we lose a certain degree of expertise, but the
benefit is that we have centralized credible mechanisms with high visibility.
Senator Carstairs: I do not disagree with that, and I support an international court of human rights, but my
experience with the Inter-American Court is that the lineup is huge. We deal with parliamentarians from Latin
America as part of my responsibilities as Vice-Chairman of the Committee on the Human Rights of Parliamentarians,
Inter-Parliamentary Union. We have referred a number of these cases to the Inter-American Court, and we are talking
years and years before they are settled.
My concern about an international court of human rights is that, first, the Americans would not join because they
do not join any international organizations of this manner; second, the proper funding would not be put in place to
allow this court to be effective. We would end up with one more international organization that gives people a
heightened sense of expectation that is not met.
Mr. Akhavan: Your observation is very correct. From the point of view of political feasibility, I would say the time is
not right to even discuss seriously an international human rights court. All I am saying is that that should be part of a
long-term vision of what we are trying to achieve. The transformation of a committee, which has a quasi-judicial
function of receiving individual petitions, should be seen as ripening over time into a more formal institution.
The same problem of volume applies to the committee as it does to a court, except the court would have a more
formal procedure. There are ways to deal with those practical issues. One can divide a court into several different
chambers. The European Court of Human Rights has the same problem of backlog.
With respect to the question of U.S. adherence, we have the case of the International Criminal Court, which, despite
not only the U.S. failure to adhere, but also U.S. active opposition and undermining of the institution, is making
progress. In the case of Darfur, it was a very interesting situation where the U.S. was forced to accept the Security
Council referral because when Colin Powell stands up and calls Darfur genocide, can it then veto a resolution that is
referring this case?
I am not too concerned, in the long term, with more enlightened U.S. leaders understanding that such institutions
are very much in their interest in terms of global governance. We should not be too easily swayed by political fortunes
and circumstances in the short run. We need to develop a longer-term perspective and then plot our practical tactics
and strategy in fulfillment of that goal.
Senator Carstairs: There have been four special sessions, three dealing with Israel. Perhaps they need a change in
their method of procedure whereby a country could not come up for another session without a two-thirds vote.
Otherwise, the council would have to move on to another country's problems with human rights.
Mr. Akhavan: Clearly, one needs to give great thought and consideration to procedure, as this body is taking shape
and taking form.
One procedure could be a requirement of a two-thirds vote. Another procedure could be, once again, creating
mechanisms and a system of gradation. For example, when we have a universal review, it becomes very clear that these
are the countries that fall into the rank of those committing gross systematic human rights violations. The report is
there. It is produced by the Office of the High Commissioner for Human Rights for all to observe, which makes it that
much more difficult to say we will have three sessions on Israel, nothing on Darfur, nothing on Myanmar, nothing on
Congo and so forth.
Senator Stratton: I am not a member of this committee, but I have taken part in some travel. How many countries
are now members of the United Nations?
Mr. Heinbecker: There are 192.
Senator Stratton: That would appear to be a large, complicated and over-bureaucratized body. That is the criticism,
that there are far too many countries now, but there is not much one could do about the situation.
With examples, such as the Congo, and how successful that seems to have been in resolving human rights, and the
UN Oil-for-Food program in Iraq, they seemed to work. Therefore, despite everything, there are huge successes in the
United Nations. Why did those work and why can we not take those examples and push them down into the human
If there is such a multiplicity of countries and an over-bureaucratization of the UN, which is the image everybody
has, then it is not working. However, I feel it is working in those two areas particularly, and if that is the case, then why
can we not do this in the area of human rights?
Mr. Heinbecker: If we consider the UN dispassionately across the whole range of improvements that it tries to
achieve, many have worked. The Oil-for-Food program worked; it prevented Saddam Hussein from getting nuclear
weapons and other weapons of mass destruction, which was its purpose. It had to be adjusted because too many people
were starving or otherwise affected by the program.
UNICEF works; it has inoculated 565 million children or numbers of that sort. The UN World Food Programme
has fed 100 million people in the last year. I am getting my numbers mixed up a little bit. The UN High Commissioner
for Refugees has housed about 20 million people last year. There is a whole range of very successful programs.
There is also a lot of banal stuff, such as allocating the electromagnetic spectrum, patents and a lot of other matters
that are being regulated, which nobody ever considers. The problem is, as Professor Akhavan was saying, the more
political it gets, the more it reflects the current disagreements and then the more difficult it is to make progress. The
most fundamental issue was Iraq — the weapons of mass destruction, Saddam Hussein and the total division of the
organization and its paralysis.
Kofi Annan tried to sell the idea, but did not quite make it, that there are basically three pillars in the UN: the
security pillar; the economic development pillar; and the human rights pillar. Many of the membership were not
prepared to say there were three pillars — there were sort of two and something. It is partly because that is where the
most contentious issues come to bear.
To some extent, the Human Rights Commission was a victim of its own success. It put people on the carpet. They
realized it was succeeding, so they used their ingenuity to get in there and direct attention at someone else. The country
that had the fewest number of supporters was Israel. Therefore, Israel became the target.
Although I hope there is, I am not sure there is any way out of that. I feel getting the procedures right helps.
However, the procedures in the Security Council have never been agreed to since 1945. Every time we feel we
understand something in the Security Council, somebody, who is a permanent member, can remember a case where it
was not so and they use parliamentary procedure against us.
I am sure we would see — and this is the larger point I was making — when the day comes that there is a
Palestinian-Israeli settlement and there are two states where everyone is living in peace and security, then the Human
Rights Council may be spending all its time on something else, perhaps Uighurs in China. However, as long as this is
the most high-profile, unresolved issue that involves many human rights questions, it will be the central issue on the
agenda. The membership numbers are such that it will be loaded on the side of the anti-Israelis. The Israelis are the
country that can dominate the military dimension of this issue and the Arabs can dominate the diplomatic dimension
of the issue. That is what is happening.
The Chairman: We must cut off. This point would be great for a continued debate on the fact that the Human Rights
Commission, at one point, was dominated by the apartheid issue. The Middle East was fought out in the United
National Independence Party issue. The political dimension is still with us. We have not even touched China and its
influence on the world, along with Russia. It is a very complex issue.
We thank both of you for appearing and presenting your points of view. Professor Akhavan, since you have been
studying the structures and procedures, if you have anything further you want to add, particularly following up with
Senator Carstairs' point. The treaty implementing and monitoring committees have a particular expertise. They are
selected because they have a particular expertise from the countries when they are put on conventions, such as On the
Convention on the Rights of the Child. If it will be coordinated, will we lose the dimension of why we set up separate
treaties in the first place and why we did not just deal with the political and civil covenant? Why we did go into those
areas? It was because of some sort of concentration need, as we do in our laws.
If you have any reflections on how we lose, we would like to hear them. Once we start coordinating, start
amalgamating, do we not lose, on the other side, the differential of why we had the treaty, what is unique about it and
what it is there to achieve? If you have any additional thoughts, I would appreciate hearing more about that in the next
couple of weeks.
I thank both of our witnesses. I feel you have given us the proper perspective to start this study on the council — the
broader UN issue, the political dimensions and the actual operations. Within the commission, I believe it was the
ingenuity of how to achieve objectives despite the politics, and sometimes using that to its advantage as well as its
disadvantage, that created some success stories in the human rights field.
You have pointed us to the council and to the broader picture of the UN, so you have accomplished what we
expected in starting this. We thank both of you for appearing and sharing your perspectives. If you have any other
thoughts, we would like to hear them.
We are pointed now to continue our study and reflections. We hope to present a report that will be helpful to the
Canadian government and to human rights.