New Institutions for Human Rights Protection (review)

This collection of six essays, edited by Kevin Boyle, brings together the lectures of the 2007 Academy of European Law of the European University Institute in Florence. The volume takes stock of new institutional arrangements in the field of human rights, which have been created over the past few years in the UN and in Europe, and traces the continuing expansion of the global human rights infrastructure. The contributions are guided—as the editor remarks in his introduction—by the gap between aspiration and achievement in the international human rights regime which contains a broad range of human rights norms and standards, but provides a fragmentary and incoherent set of institutions and mechanism for monitoring and enforcement. The six authors seek to analyze the role which such human rights institutions, both at the national and international level, play in translating states’ commitments into effective protection.

Kevin Boyle opens the collection with an assessment of the first few years of the UN Human Rights Council, created in 2006. He traces the history of the proposal to set up this institution and the transition phase from the UN Commission on Human Rights to the Council, and revisits the Council’s mandate. He also highlights the role of regional and political groups in the UN and the often underestimated (and certainly under-researched) impact they exercise on the creation and functioning of human rights bodies. Boyle also revisits the Council’s special sessions as well as its explicit recognition of the role of National Human Rights Institutions. The chapter provides an elaborate and most informative analysis of the outcome of the so-called “institution-building” year in which the Council’s structure and “architecture” were agreed upon and fine-tuned. This institution-building year also resulted in a detailed schedule and work programme for the Council’s old and new tools and mechanisms, most prominently the new Universal Periodic Review (UPR). As for the way ahead, Boyle is cautiously positive, but points out that while the institution-building year has clarified the internal workings of the Council, the institution’s relation with other parts of the UN system is not yet settled and questions remain. For instance, how can the Council better engage its parent body, the General Assembly, in human rights matters, and what role is left for the Assembly’s Third (social and humanitarian) Committee? What is the burden-sharing between the Council and the UN High Commissioner for Human Rights, given that both are entrusted with coordinating the UN human rights machinery? How can the UPR be prevented from duplicating or even eroding the treaty bodies? How can the Council hook up with the Security Council to fulfil its preventive mandate? Boyle hesitates to give answers (and it is true that only time will tell where the Council is heading), yet he rightly notes that there is a clear and urgent need for scholarly engagement and political leadership in these matters right now.

Nigel Rodley updates his reflections published elsewhere on the future relationship between the Council’s special procedures and the treaty bodies, a matter on which General Assembly resolution 60/251 (which created the Council) offered only the aspiration that the two ought to complement each other. Rodley asks whether we are moving towards complementarity or competition between the two, and starts with an interesting speculation: had there been a functioning monitoring system in the (dissolved) Commission on Human Rights right from the start, would the treaty bodies have been created at all? On the basis of a detailed and informed tour through both the treaty bodies and the special procedures (which offers a wealth of information on past cooperation activities between the two) he concludes that, in essence, the treaty bodies would not have been set up if a Commission with a strong monitoring mandate would have been on the horizon. To him, entrusting the treaty bodies with the state reporting procedure represented a birth defect of the UN human rights system; a defect, however, with...