An examination of the Human Rights Council's role in the international community, its flaws and its overall impact on human rights with "The United Nations Human Rights Council: A Critique and Early Assessment" by Rosa Freedman as a guide
The UN Human Rights Council (HRC) was built to be a valuable asset. One of the ways it does so is by acting as an ‘arena’ for states and non-state actors to discuss and debate human rights issues. This was important in the HRC’s conception that its role in information sharing, discussion and debate was established in GA resolution 60/251.
“Decides that the Council shall, inter alia: (b) serve as a forum for dialogue on thematic issues on all human rights” (GA resolution 60/251 Clause 5b)
Because the HRC acts as a “forum for dialogue”, it gains access to valuable information from these discussions. However, states have turned this “forum” into a political arena, using it to push for their own national agendas.
The HRC’s importance as an arena is not the only power it has to achieve its mandate. As an ‘instrument’, the HRC has numerous tools to ensure human rights: their protection and promotion. However, in "The United Nations Human Rights Council: A Critique and Early Assessment", Rosa Freedman addresses the issue of states using the HRC for their own national agendas. The problem is not new; it led to the failure of the HRC's predecessor.
“Despite political agendas dominating the Commission’s final years and significantly contributing to its demise, the Council has failed adequately to address and overcome this problem.” (The United Nations Human Rights Council, 108)
Rosa Freedman asserts that the HRC needs to become an ‘actor’ that can states. In some respects the HRC has been moving towards actor status. The report on the situation in the Democratic People’s Republic of Korea (DPRK) made waves in the international community, angering China and the DPRK in the process.
“On 21 March 2013, the United Nations Human Rights Council established the Commission of Inquiry on Human Rights in the Democratic People's Republic of Korea (DPRK) through resolution A/HRC/RES/22/13. The commission investigated "the systematic, widespread and grave violations of human rights" in North Korea and released a report on February 17, 2014 of their findings.”
-Council on Foreign Relations
“China and North Korea have slammed a U.N. report that found crimes against humanity committed in the reclusive Democratic People's Republic of Korea.”
-CNN
While this report had significant news coverage, the HRC’s roles would be made influential if its powers were legally binding.
*The HRC’s three roles are derived from chapter 5 of Rosa Freedman’s “The United Nations Human Rights Council: A Critique and Early Assessment”
Five Lenses for the HRC: An international relations perspective
It is advisable to prime the analysis of the Human Rights Council (HRC) with a basic understanding of international relations theories. Based on chapter four of Rosa Freedman’s The United Nations Human Rights Council: A Critique and Early Assessment, I will summarize the value of idealism, realism, social constructivism, institutionalism, and post-Marxism for explaining the HRC. Although they each have their downfalls, they all have been used to interpret the HRC at some point.
1) IDEALISM: Explaining the theory
“Idealism regards actors as being directed by values and norms that are generally shared, if not universal.” (The United Nations Human Rights Council: A Critique and Early Assessment, 91)
Applications to the HRC
After, reading the section on idealism, it became clear that idealists are the architects of human rights law and the HRC. Understanding idealism is an important factor in understanding the foundation and legal documents of the HRC. For example, both the Universal Declaration of Human Rights (UDHR) and GA resolution 60/251, the founding document of the HRC, have idealist language and principles.
"Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world" -UDHR Preamble
Additionally, “universality”, as a founding principle of the HRC, reflects the idealist idea of universal values and human rights. However not all HRC members agree with universalism, preferring cultural relativism instead. The "inalienable rights" laid out in the UDHR do not seem so absolute to these critics. Considering that idealism is the basis of human rights law, I was not surprised to learn that criticism of idealism is similar to resistance of human rights law and debate within the HRC.
Idealism can also be used to interpret the growing, unforeseen emphasis on human rights across the globe as a direct result of societies’ interest in their assured human rights. This emphasis on human rights is evidence of common ground. The creation of the HRC is the result of this common ground.
2) REALISM: Explaining the power struggles
“States are continually seeking power, much as national political parties are always striving to have and retain power. The struggle for power is the focal point of all international relations. International organisations are used by powerful states to implement power politics and to pursue their own self interest.” (The United Nations Human Rights Council: A Critique and Early Assessment, 89)
Applications to the HRC:
Critical of idealism, realism is useful for interpreting situations when the sates act for their own national interests. For example, within the HRC, there is a prevalence of power struggles between states to further their own national interests. To preserve national interests, blocs use politicization to focus on certain countries and issues but avoid others. These power struggles were also a main criticism of the HRC’s predecessor, the United Nations Commission on Human Rights (UNCHR), because too much focus on national agendas undermines work for human rights. These power struggles explain inaction by the HRC.
Therefore, realism can be a perspective to explain the flaws of the HRC in terms of power. Collective voting by weaker, non-democratic member states often outnumbers the votes of more powerful states. Many states choose to act according to their own national interests regardless of the HRC’s decisions, which are not legally binding. The HRC has limited authority, acting more as a political arena for member states.Perhaps, as a result of those factors, powerful states are not extensively involved with the HRC. From a realist perspective, this is a potential weakness to the HRC's legitimacy. Realists argue that the involvement of states, particularly powerful states, determines the success of international organizations and their course.
3) SOCIAL CONSTRUCTIVISM: Explaining the improvement of states
“Social constructivists stress that human rights are a fundamental interest for all states, but admit that this position is not accepted by every country. Theorists therefore focus on how to change states’ behavior in order to ensure compliance with human rights norms.” (The United Nations Human Rights Council: A Critique and Early Assessment, 105)
Application to the HRC:
Social constructivism applies to the HRC because one of its main aims is to improve states’ behaviors and norms. The HRC offers opportunities like the Universal Periodic Review(UPR) mechanism for states to receive advice on how to improve human rights and address issues. GA Resolution 60/251 recognizes the necessity and value of involvement by social groups like NGOs for the improvement of norms and states.
Social constructivists do not deny that there are many different stances and approaches towards human rights within the HRC because it has a wide array of members. However, without common ground, it is difficult to fulfill the HRC’s mandate.
4) INSTITUTIONALISM: Explaining the political necessity of collaboration
“A common interest between states, even where their political agendas may differ is the avoidance of such joint losses or the acquisition of such joint gain. States are united by the pursuit of that which they cannot achieve on their own, and thus international organizations are more powerful than the sum of their parts.” (The United Nations Human Rights Council: A Critique and Early Assessment, 96)
Application to the HRC:
GA Resolution 60/251 highlights the importance of common interest for the HRC’s success. Unfortunately, members come from many different ideologies and regions, creating tension and conflict about how to approach human rights issues. Freedman notes that, in practice, certain rights, like the right to clean drinking water, are more established as a common interest than other rights. Therefore, collaboration is important; and institutionalism explains why such different nations should and would collaborate. However, at the HRC, compromise agreements are common for collaboration. Compromise agreements can lead to certain human rights being sacrificed for the sake of other human rights.
Institutionalism addresses the power that weaker states can have when collaborating. This is demonstrated by the HRC because it is dominated by developing states. Institutionalism does not adequately handle the matter of powerful states, and the potential impact of their lack of influence.
Institutionalism also addresses interdependence. Human rights violations’ effects cross borders, making human rights a common interest in our globalized world. Therefore, the existence of the HRC as an international organization is not surprising.
5) POST-MARXISM: Explaining state behavior
“According to post-Marxists, cultural relativism does have a ‘good side’, providing a counterbalance to the universalism promoted by Western states to advance their own objectives without reference to weaker states’ norms, cultures or positions. Thirds World theories challenge the use of international organizations by powerful states seeking to impose Western aims and to continue neo-colonial imposition and oppression” (The United Nations Human Rights Council: A Critique and Early Assessment, 103)
“International Relations were to focus on the relationship between developed and developing nations, and the need for solidarity with states oppressed by imperialist nations.” (The United Nations Human Rights Council, 102)
Application to the HRC:
Many HRC member states' behaviors at the HRC reflect post-Marxism. Some of the arguments and approaches in the HRC mirror post-Marxist thinking, such as the Third World theories and the world systems theory. For example, attacking perceived neocolonialism and western imposition is common within the HRC. States use these theories to call for capacity building and to deter criticism. Additionally, endorsing cultural relativism, post-Marxism fuels much of the controversy over universalism that occurs within the HRC. Although some members of the HRC do not agree with every human right for political reasons, they may argue that the determined, set of universal human rights are an imposition of western ideals. Another example of actions reflecting post-Marxist thinking in the HRC are the strict regional blocs and alliance of the global south have banded together. After all, post-Marxist theory endorses collaboration and cooperation between weaker states. Because many states approach the HRC from a post-Marxist perspective, the theory has influenced the way that the HRC has developed.
Often times, different theories provide alternative explanations to the same situations. An example can be found in the US withdrawal from permanent mission status in 2008, covered in the seventh chapter of Rosa Freedman's analysis. She asserts that realists interpret the US withdrawal as a statement of power, but idealists interpret the same situation as a result of dissatisfaction with the HRC's inadequate work for human rights.
It is important to conclude that they are just theories, not absolute truths. While each of the five theories have their merits, they, also, have their limits. Still, these theories are useful for interpreting different parts of the HRC: its theory, its power struggles, its role in improving states, its existence and need for collaboration, and its member states' behavior.
Journey from Commission to Council: Flaws and Reforms
“Lack of radical reform resulted in many similarities between the bodies both in terms of their form and their mandates.”
-Rosa Freedman (The United Nations Human Rights Council: A Critique and Early Assessment, p 84)
The United Nations Commission on Human Rights (UNCHR) was heavily criticized and reformed, but ultimately the international community wanted a fresh coat of paint on the UN's third pillar of Human Rights. The Human Rights Council (HRC) was created. Despite an intense amount of proposals and discussions about reform, some were disappointed with the resulting replacement. Rosa Freedman noted that limited change occurred in the creation of the HRC.
Before analyzing the HRC's role in human rights and its successes and flaws, it is important to analyze the successes and flaws of its predecessor. More over, examining the extent of reform as address to previous issues with the UNCHR gives light to the HRC's structure and functions.
Below are summaries of the UNCHR, proposed reforms and the HRC in areas that the UNCHR faced the most criticism. These areas are based on Part One of Rosa Freedman's book "The United Nations Human RIghts Council: A Critique and Early Assessment".
"Decides further that the Council shall meet regularly throughout the year and schedule no fewer than three sessions per year, including a main session, for a total duration of no less than ten weeks, and shall be able to hold special sessions, when needed, at the request of a member of the Council with the support of one third of the membership of the Council"
(GA Resolution 60/251, par.10)
Placement in the UN and Resources
UNCHR:
The UNCHR was not a principal organ but a subsidiary Charter-based body under ECOSOC. Due to its placement in the UN, the body lacked permanent funds and a permanent location. The Commission was characterized by six-week long sessions with NGOs presenting to state actors. The sessions themselves were appreciated, yet, only occurred once a year. With too many agenda items and limited time, insufficient progress was made. Due to its status and lack of resources, the body could not handle human rights crisis sessions.
Proposed Reforms:
The prospects of creating a principal organ of the UN had its "pros", such as increased resources and importance, but it demanded a change to the UN Charter.
Creating a standing body would address problems over resources available to the body, but developing countries may not be capable of maintaining a delegation.
The EU endorsed the extension to 16-week long sessions, occurring four to six times a year.
Ensuring that the crisis situations could be handled was an important objective
HRC:
The decision was to create the HRC as a standing body, a subsidiary organ of the GA with non-binding powers. This allows for permanent and improved resources. There are to be at least three sessions a year, each lasting a minimum of 10 weeks. Crisis situations could be addressed by the use of special sessions when supported by one-third of members. The HRC is also built to work with other NGOs and human rights entities for their expertise.
Membership and Elections
UNCHR: The Commission’s growing membership mirrored that of the UN. Beginning in 1946 with 18 members that represented the western mindset, it grew to a more representative 53 states by 1992. The changes in membership allowed for regionalism and for developing countries to use it as a tool for their own national agenda. Some members were voted in based on geography and politics despite human rights abuses. Additional controversy arose when the United States of America wasn’t re-elected to the commission in 2001, while Sudan was elected the same year. Libya was elected chair in 2003 because of its region’s endorsement despite its questionable record.
Proposed Reforms:
Changing the size of membership
The High Level Panel suggested universal membership.
The US suggested a membership of 20 states.
Kofi Annan suggested a membership of 15 states for more efficiency.
There was controversy over membership criteria
US wanted only “real democracies” to have membership.
It was argued that eliminating human rights violators through membership criteria would improve credibility.
Others advocated for positive criteria like ratification of human rights treaties.
Some felt that criteria would undermine the international component of the body.
To decrease members with unsavory human rights records, there was discussion about election reform for a required two-thirds majority for member states. Unfortunately, member states with gross violations had been elected at a higher percentage.
It was also proposed that, for elections, states’ human rights records should be published by the OHCHR.
HRC: Composed of 47 member states, the decision was a compromise between the different proposals, but it didn’t result in much change. Resulting changes in the proportion of seats representing each geographical group have allowed the HRC to be dominated by the Global South. Membership lasts for three years, and the propensity for a virtual permanent membership is eliminated by a suspension of re-election for the subsequent six years. Elections themselves occur through secret ballot and the body elects members based on a simple majority. So called, ‘soft’ criteria for “voluntary pledges and commitments” are meant to be taken into consideration during the election process. One useful power: the GA does have the power under a two-thirds majority to rescind HRC membership for reasons of human rights violations. This was utilized in the suspension of Libya in 2011.
Country Specific Issues
I strongly support the proposal that country scrutiny be exercised through a system of peer review, whether in a new Human Rights Council or a reformed Commission on Human Rights. This system should be built on the principle of universal scrutiny, whereby all States submit to a review of law and practice concerning their human rights obligations. For such a system to be credible and gain the confidence of all, it will be essential that a fair and transparent method be developed to compile information upon which to base the peer review.
-Kofi Annan (In larger freedom: towards development, security and human rights for all, 22)
UNCHR: One of the most controversial elements of the UNCHR was the address of country-specific issues. Although, originally it was decided not to focus on specific countries, the 1235 Procedure (1967) and the 1503 Procedure (1970) allowed the commission to investigate member states without their cooperation when outside complaints were made by NGOs, individuals and states. Some scholars appreciated the UNCHR’s ability to target human rights abuses by states. Others found the practice unhelpful and too politicized. Many human rights abuses were ignored while states like Israel were given an incomparable amount of attention for political reasons. Selection of the states was criticized as biased and a form of oppression.
Proposed Reforms: A Universal Peer Review (UPR) would hold all states accountable for their abuses without disregarding or targeting any states based on politicization.
HRC: The UPR was established as a tool for the HRC to non-selectively and objectively examine the human rights situations in all UN states equally. It has been said that Agenda Item 7 of the IBP for discussion of “Palestine and other Arab territories” undermines the goal of the UNCHR to be unbiased in its selection of country-specific issues. In addition, mechanisms still allow for country-specific complaints and discussions to be brought up.
Emphasis on Capacity Building
UNCHR: Poor capacity countries struggle to maintain human rights. Criticism of these states’ human rights records was criticized as products of neocolonialism.
Proposed Reforms: The Former High Commissioner for Human Rights, Mary Robinson, emphasized the ties between capacity and the efforts nations had towards establishing human rights.
HRC: Increased attention on capacity building has been present in the HRC, as they seek promotion of human rights and prevention of abuses.
Other Challenges of the First International Human Rights Body
Other serious issues faced by the UNCHR were not fully addressed in the creation of the HRC.
Human rights were previously seen as a purely national issue, creating resistance to the commission’s involvement.
Politicization, “the introduction of unrelated controversial issues by countries seeking to further their own political objectives”, was common in the body’s actions.
Within the sphere of politicization, there is the problem of regionalism, alliances between nearby countries.
The north/ south gap, the tendency for developed states to form alliances with other developed states and developing states with developing states, affected the work of the commission.
“Cultural sensitivities” and differing membership to treaties were used by states to manipulate disagreement over human rights.
Power struggles affected the actions of the body, as national agendas became more important than human rights.
Diplomats replaced the human rights experts that were supposed to be sent by member states with their own national agendas in mind.
Nations blocked scrutiny through regionalism and politicization. This permitted inaction on key human rights issues.
Journey from Commission to Council: Successes, Reports and Rebirth
"Since its establishment, the United Nations has committed itself to striving for a world of peace and justice grounded in universal respect for human rights – a mission reaffirmed five years ago by the Millennium Declaration. But the system for protecting human rights at the international level is today under considerable strain. Change is needed if the United Nations is to sustain long-term, high-level engagement on human rights issues, across the range of the Organization’s work."
UN Secretary-General Kofi Annan "In larger freedom: towards development, security and human rights"
The UN Commission on Human Rights (UNCHR) was the original human rights body, created in response to the abuses of World War II. The goal was for the UNCHR to function, not as a political body, but for the protection and promotion of human rights. The UNCHR was responsible for the conception and establishment of the Universal Declaration of Human Rights (1948), the International Covenant on Economic, Social and Cultural Rights (1966), and the International Covenant on Civil and Political Rights (1966). These documents have been instrumental in the field of human rights, and such feats should not be forgotten when analyzing the contributions of the UNCHR. Eventually the UNCHR expanded from standard setting, the early focus of the UNCHR to handling human rights abuses. However, it also had many criticisms, including its inaction on serious human rights violations. Some of the reforms implemented during the Commission’s six decades were also seen as contributing to its ultimate demise.
In 2004, the High Level Panel on Threats, Challenges and Change created a report that criticized the Commission and called for reform of the body. The Swiss Ambassador put forth a draft proposal in the UNCHR’s 60th session for the creation of the United Nations Human Rights Council (HRC). Such a move to scratch the UNCHR and start over with the formation of a new body was, also, called for by Secretary General Kofi Annan. Not everyone agreed with the perceived failure of the Commission, and some states were afraid of reform that would no longer allow them to escape action. However, the 2005 World Summit of Heads of State and Government agreed upon a general mandate for a desired replacement, but they left the General Assembly (GA) to determine the details and reforms implemented. The Council was created under GA Resolution 60/251, and some of the proposed reforms for the UNCHR were implemented. The HRC was further established with additional powers, mechanisms and specific agenda items under The Institution Building Package (IBP) in June 2007.
The HRC is very similar to the UNCHR. It has a similar function with several different mandates. Outlined in Paragraph 2 of GA Resolution 60/251, the HRC must work towards promoting human rights through such avenues as human rights education, capacity building, dialogues and other activities “that help, support or enable states to implement their human rights obligations and commitment.” Promotion comes from working with states and the wider UN. There is also a protection mandate, whereby the HRC is to protect individuals through response to human rights abuses. While there were changes and reform in the formation of the HRC, the positive aspects of the UNCHR were meant to be maintained. Like the UNCHR, the HRC is responsible for standard-setting, but it also can use recommendations, compliance supervision, fact-finding missions, general debates, information sharing and so forth to achieve its goals. The HRC’s principles, based on GA Resolution 60/251, are universality, objectivity, cooperation and dialogue.
Were the flaws of the UNCHR addressed in the HRC's creation? Did the changes and reforms better the HRC?
Some argue that the HRC has become as biased and worthless as its predecessor, the UNCHR
"The Council is a source of embarrassment to the UN system just like its predecessor, the UN Commission on Human Rights."
-Gabrielle Sassoon "Ban Tyrants From Sitting On UN RIghts Body", Forbes
With the current conflict in Gaza, the HRC's contributions to the international community has been questioned. The above quote comes from a recent editorial published by Forbes, which bashed the HRC. A similar editorial blog, published on the same day by the Council on Foreign Relations, called for the United States to disengage from the HRC. Both of them compared the HRC to the UNCHR in an unflattering matter. Additional analysis is needed.
The purpose of this blog shall be to act as a tool for learning about The United Nations Human Rights Council (HRC) in context of its work with other bodies, its mandate, its predecessor: the United Nations Commission on Human Rights, its successes and its criticisms. Readings used for this blog will primarily be "The United Nations Human Rights Council, A Critique and Early Assessment" by Rosa Freedman, the HRC website and documents, news and journal articles and GA resolution 60/251. Postings shall be organized in response to Rosa Freedman's chapters.
My interest for starting the blog is to explore the HRC through Rosa Freedman's book and to apply what was read to current discussions and events. The HRC is an important international organization in the field of human rights. By considering its background and structure, its involvement in contemporary human rights issues, or lack of involvement, may be better understood.
