The UN Human Rights Council

Bertrand Ramcharan, Bertrand G. Ramcharan

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9780415583985
• eBook ISBN: 9781136657016
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

The UN Human Rights Council provides a detailed insight into this important organization. The UN was founded in the hope that lasting peace would be built on the foundations of human rights and economic and social progress. In 2006 the Commission on Human Rights was replaced by the Human Rights Council as the principal UN body concerned with human rights. It is even possible that the council might eventually become a principal organ of the world organization.

The Human Rights Council is already the subject of major public interest and controversy. The Council has been criticized for having dropped some of the protection strategies of the former commission and this book aims to present a balanced view of the council, outlining its current role, acknowledging where it has made positive contributions, highlighting the deficiencies, and identifying options for improving the body's future work.

This book is destined to become the leading text on the Human Rights Council and will be essential reading for all those concerned with the future of international relations international organizations and human rights.

1 Mandate and roles

• Policy perspectives

• Politics and principle

• The former Commission on Human Rights

• The council’s policy foundations

• Policy options

This chapter examines the mandate and roles of the Human Rights Council. It does so against the background of the historic mission of the United Nations as envisaged in its Charter, which emphasizes the need for the promotion and protection of human rights internationally. The chapter also takes into account the present challenges facing humanity.

It is important to keep in the foreground that the HRC is a political body in which states often act not from principled but from pragmatic, opportunistic, or nihilist perspectives. Indeed, power politics and raw state interest have had a heavy influence on the council. A review of the HRC will make clear that its protection mandate is ambiguous, that it overemphasizes cooperation and dialogue, that it has not been faithful in the discharge of the responsibility to protect, that it has not yet contributed anything to advancing national implementation of the right to development, and that it has not made any meaningful progress on the implementation of preventive human rights strategies. Essentially the council has thus far been a weak defender of human rights worldwide and must take more robust action if it is to remain a relevant body in the twenty-first century.

Policy perspectives

In considering the policy perspectives that should guide the Human Rights Council, a basic question arises: what should be expected of the world organization’s leading human rights body, keeping in mind that the Charter and other UN documents and resolutions emphasize the interrelationship of peace, human rights, and development?

It would be reasonable to expect the council to spearhead international efforts to uphold international human rights standards worldwide. It should act as the UN flag-bearer in upholding the responsibility to protect; lead efforts to prevent human rights violations; respond promptly, adequately, and effectively to all gross violations of human rights; contribute to bringing to justice those responsible for criminal violations of human rights; promote the implementation of the right to development nationally, regionally, and internationally; combat all forms of discrimination; prepare standards to deal with new problems threatening human rights; promote a culture of human rights worldwide; encourage the spread of human rights education; champion democracy and the rule of law in all countries; give a voice to victims at the United Nations; and cooperate with regional human rights organizations and with NGOs.

These are all things that the UN Human Rights Council—even one riddled with political horse-trading—should strive for. The UN Charter and the Universal Declaration of Human Rights recognize the dignity and worth of every human being. The advancement and protection of the rights of human beings should serve as the foundation of the HRC’s work. Given that the three strands of the UN’s work are intimately intertwined, the council’s human rights work should contribute to, and be reinforced by, the world body’s efforts in the areas of peace and development.

In order to discharge its role, the HRC should spearhead the deepening of a universal culture of human rights on the basis of international human rights law and norms. The entrenchment of such a culture requires modern promotional and educational strategies.

As the leading human rights body, the council should help advance the implementation of the right to development within countries. The implementation of this right must commence within each state, which should use available resources efficiently and equitably. International support and solidarity should be provided where needed.

The council should keep an eye over threats and challenges to human rights, nationally, regionally, and internationally, and it should act to prevent looming dangers to human rights. It should monitor national protection systems and evaluate their adequacy to protect populations and prevent human rights violations. The council’s engagement with each government should have these priority objectives constantly in view. Prevention and protection must be the key goals of national engagement.

Where human rights are at risk or are being grossly violated in any part of the world, the council should act in a timely, principled, and effective manner. This is the essence of the responsibility to protect that world leaders affirmed at the United Nations World Summit in 2005. Where there are situations of criminal violations of human rights, the council should find ways of informally sharing this information with the International Criminal Court’s prosecutor and with the General Assembly.

Where there are violations of human rights that might threaten international peace and security, the HRC should communicate with the Security Council. Habits of cooperation should be developed between the UN’s main human rights body and the lead peace and security organ.

The Human Rights Council should apply the same measures to all countries. A human rights body should not be partial, selective, or politically biased.

Politics and principle

The Human Rights Council’s mandate is quite expansive. The General Assembly resolution founding the body places much emphasis on its role in engaging in dialogue and cooperation with states. The foregrounding of cooperation and promotion rather than protection weakens the HRC. The council’s predecessor, the Commission on Human Rights, was similarly mandated with a promotional role and only able to carve out a protection role through decades of practice. Thus, the perennial issue that has faced the UN in the field of human rights ever since its establishment in 1945 still stalks the council—the issue of idealism versus realism, of politics versus principle.

During the Second World War, Western leaders and NGOs made lofty statements that the future peace would have to be grounded in respect for human rights and fundamental freedoms. Yet, at the San Francisco conference that drew up the UN Charter, the Cold War was descending and human rights were nearly sidelined in the Charter. Some states were uncomfortable with the notion of international scrutiny.

It took determined efforts by NGOs to secure the human rights provisions of Charter Articles 1, 2, 13, 55, 56, and 68, but these were weak. Charter Article 2 (1), for example, asserts that one of the purposes of the world body is to achieve international cooperation by “promoting and encouraging respect for human rights.” Even the United States, the postwar champion of human rights, argued against giving the UN the competence to protect human rights as opposed to simply promoting them. Protecting fundamental rights was seen as primarily the concern of states, and only in circumstances when “such rights and freedoms were grievously outraged so as to create conditions which threaten peace or obstruct the application of provisions of the Charter, then they cease to be the sole concern of each State.”¹

In Charter-drafting Subcommittee I/1, the delegate of Panama argued that “promotion and encouragement of respect for” was weak and should be replaced by “promotion and protection of” human rights. The US delegation and others opposed this change. They believed that this language “would raise the question as to whether or not the Organization should actively impose human rights and freedoms within individual countries, and that it would lead many peoples of the world to expect more of the Organization than it could successfully accomplish.”²

Charter-drafting Subcommittee II/3 incorporated into the text of Charter Article 55 an Australian proposal that the world organization should promote not only respect for human rights but also their “observance.” When this provision was discussed in the Coordination Committee of the San Francisco conference, it was explained that the intention behind the proposal was “to reinforce ‘respect’ which had the connotation of passive acceptance by ‘observance,’ which was intended to imply active implementation.” It was further explained that “observance implied an obligation to change the laws of one’s own country to implement this article, whereas ‘respect’ merely means respecting the laws of other countries in this regard.”³ The word “observance” was thus inserted in Article 55.

According to Article 68, the Economic and Social Council was mandated to set up a commission for the “promotion” of human rights. ECOSOC, accepting the recommendation of a joint committee on the composition of its functional commissions, passed a resolution in June 1946 deciding that the commissions should consist of members of the United Nations selected by ECOSOC. ECOSOC agreed, however, that governments elected to membership had the option to nominate persons either as government representatives or as experts in an individual capacity.

This background is necessary for understanding difficulties that have plagued the United Nations in adopting a principled approach to human rights ever since its establishment. Nevertheless, delegations at San Francisco did agree that there would be a Commission on Human Rights, and they gave it the task of elaborating an international bill of human rights, which the CHR did. This was a solid achievement of the commission.

As early as 1947, however, the CHR took the position that it lacked the competence to deal with thousands of petitions from individuals from the communist countries. Even Eleanor Roosevelt, who was the commission’s first chairperson and led its efforts to draft the Universal Declaration, supported this decision, which was denounced by UN assistant secretary-general Henri Laugier as “une honte,” shameful. It was only some 20 years later that the CHR would attempt to tackle gross human rights violations. It started holding annual open debates, established a confidential petitions procedure, and appointed country and thematic rapporteurs to investigate situations of gross human rights violations.

As the CHR developed some teeth, governments accused of gross violations began seeking membership in the commission and formed a self-defense club to shield themselves from criticism. This became a major problem for the wider UN, and led Secretary-General Kofi Annan in 2005 to follow the US position and call for the CHR’s abolition and replacement by a Human Rights Council.

As the resolution establishing the council was being drafted, many of the problems that had long been seen in the CHR resurfaced. How would members be selected? How many members would there be? What functions would the HRC have when it comes to dealing with gross human rights violations?

In the case of the CHR, ECOSOC had provided for consultation with the secretary-general on representatives who would serve on the commission. However, none of the secretary-generals preceding Kofi Annan had set up such a consultation procedure. This had been one of my leading recommendations to Annan, as I served as acting high commissioner for human rights.

The foregoing background shows that from the outset UN member states have paid lip-service to human rights ideals, but have always pursued a realist approach by placing limitations on the protection and enforcement capacities of UN human rights bodies. Yes, the UN would set and promote standards; yes, the UN would try to promote a culture of human rights (especially during the ideological struggles of the Cold War); but no one—neither Western, Eastern, nor developing country members—would give the organization teeth for the active defense of human rights. Protection was for governments in the first instance. If gross violations threatened peace, only then were they no longer within the exclusive domain of governments. But, hobbled by power politics, what could a weak UN do to protect human rights?

This problem still bedevils the UN and its Human Rights Council, notwithstanding the General Assembly’s begrudging and still controversial adoption of the concept of the responsibility to protect. And yet, the world moves on. In the eyes of those who continue to profess faith in the UN, the Human Rights Council should be what its name implies: a principled body for the protection of human rights. The HRC attracts the heaviest criticism precisely because it is neither principled nor a body for the protection of human rights worldwide.

The UN Human Rights Council is a Charter-based institution established by the General Assembly to help implement the Charter’s mandate on human rights. When the United Nations was founded, it was widely believed that international peace and security could be maintained and sustained only if human rights and fundamental freedoms were respected worldwide. At the closing of the San Francisco conference, where the Charter was drafted, President Truman echoed this belief when he declared that under the Charter “we have good reason to expect the framing of an international bill of rights, acceptable to all the nations involved. That bill of rights will be as much a part of international life as our own Bill of Rights is a part of our Constitution. The Charter is dedicated to the achievement and observance of human rights and fundamental freedoms. Unless we can attain those objectives for all men and women everywhere—without regard to race, language or religion—we cannot have permanent peace and security.”⁴

The former Commission on Human Rights

The Commission on Human Rights was an imperfect body during its nearly 60 years of existence because of the interplay of morality, interests, politics, and principle. It was nevertheless, at the same time, a builder, stone by stone, of the yet unfinished palace of human rights and justice envisaged by one of its founding members, the Nobel Laureate René Cassin.⁵ It was the CHR that pieced together the Universal Declaration of Human Rights, the two international covenants, and numerous other treaties and normative instruments. It worked on standards for the prevention of enforced and involuntary disappearances and for the protection of indigenous populations. The commission’s normative work will remain a lasting edifice to its accomplishments.⁶

Overview

The CHR never fulfilled the challenges of human rights protection, and this was one of the most damaging criticisms leveled against it. From the UN’s founding, however, there was always a tension between promotion and protection. At the San Francisco conference, the world’s great powers—including the United States, the Soviet Union, France, and the United Kingdom—opposed giving the United Nations the competence to protect human rights. The United States was a racially segregated country, the Soviet Union a totalitarian state with gulags, and France and the United Kingdom colonial powers that exploited subject populations. Clearly a UN empowered with the capacity to protect human rights was not in their interests.

The great powers consistently sought to fend off the commission. The CHR never adopted a resolution criticizing the Soviet Union for the gulags or the United States for segregation or racial discrimination. Only on rare occasions was it critical of the great powers. For example, it criticized the United Kingdom over its “virginity checks” of immigrant women and condemned the Russian Federation over violations of human rights in Chechnya.

It was newly independent countries that acted through the General Assembly in the mid-1960s to convince the commission to consider human rights violations in any part of the world, particularly in apartheid South Africa and in colonized and dependent countries.⁷ NGOs and some experts used this opening to press the case for protection. The CHR subsequently established procedures and investigators to examine allegations of gross human rights violations. The work of the commission’s thematic and country investigators was substantial.

In the late 1980s and especially during the 1990s, the very developing countries that had sought to enhance the CHR’s capacity to deal with allegations of human rights violations sought to neutralize the commission’s protection procedures and instruments. African and Asian countries, in particular, argued against the work of the CHR’s investigators and opposed the adoption of resolutions critical of particular countries. States with atrocious human rights records sought membership of the commission and jointly opposed the practice of adopting resolutions expressing concern about human rights in particular countries. Third World countries argued for “dialogue and cooperation,” not confrontation.

The membership of human rights violators and developing countries’ use of their majority to block draft resolutions emerged as a major critique of the commission. Many developing countries believed that the CHR was being used as a political weapon against them by the advanced industrialized West. At a time when they were facing severe socio-economic problems stemming in part from the inequitable functioning of the international economic system, they felt they were being put in the dock.

The commission needed to bridge morality, principle, interests, and raw politics in order to function. Switzerland called for the commission’s elevation to a stronger Human Rights Council. Secretary-General Kofi Annan, in his annual address to the commission in 2005, endorsed the Swiss proposal. The CHR’s end came swiftly and a new Human Rights Council was established with a mandate to promote respect for the protection of human rights. The CHR had established important foundations for protection through its special procedures. The council was given the mandate to renegotiate practically every aspect of the commission’s work, including its special procedures. The HRC has so far opted for a mainly diplomatic approach in dealing with problematic situations, and human rights advocates are battling once again for protection of human rights within the UN’s leading human ri...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Foreword
• Acknowledgements
• List of abbreviations
• Introduction
• 1. Mandate and roles
• 2. Institutional and procedural architecture
• 3. The Universal Periodic Review
• 4. Legislative role
• 5. Promotional and educational role
• 6. Preventive role
• 7. Fact-finding role
• 8. Protection role
• 9. The Advisory Committee
• 10. NGOs and the council
• 11. Conclusions
• Notes
• Select bibliography
• Index