The United Nations Human Rights Council

A critique and early assessment

Rosa Freedman

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135115142
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto internazionale

The United Nations Human Rights Council was created in 2006 to replace the UN Commission on Human Rights. The Council's mandate and founding principles demonstrate that one of the main aims, at its creation, was for the Council to overcome the Commission's flaws. Despite the need to avoid repeating its predecessor's failings, the Council's form, nature and many of its roles and functions are strikingly similar to those of the Commission.

This book examines the creation and formative years of the United Nations Human Rights Council and assesses the extent to which the Council has fulfilled its mandate. International law and theories of international relations are used to examine the Council and its functions. Council sessions, procedures and mechanisms are analysed in-depth, with particular consideration given to whether the Council has become politicised to the same extent as the Commission. Whilst remaining aware of the key differences in their functions, Rosa Freedman compares the work of the Council to that of treaty-based human rights bodies. The author draws on observations from her attendance at Council proceedings in order to offer a unique account of how the body works in practice.

The United Nations Human Rights Council will be of great interest to students and scholars of human rights law and international relations, as well as lawyers, NGOs and relevant government agencies.

Part 1

The Human Rights Council’s Mandate

1

Background: From Commission to Council

1.0. Introduction to Part

The Council’s predecessor, the UN Commission on Human Rights, was the first international organisation mandated to deal with international human rights. Created in 1946,¹ the Commission operated for 60 years before being disbanded and replaced by the Council in 2006. Much has been written about the Commission’s demise by human rights scholars, practitioners and experts. Various positions on the Commission were put forward by states, regions, and observers.

Understanding the Commission’s flaws, especially those contributing to its ultimate failure, lays foundations for analysing the new Human Rights Council. Reform of the Commission has led to significant changes, reflected in the Council’s mechanisms and proceedings. Other features of the old body remain in place at the HRC. In order to analyse the composition of the new body, I shall first explore the issues raised regarding the Commission, the reform proposals, and the impact upon the new body.

1.1. History of the Commission on Human Rights

1.1.1 Human Rights Organisations Background

Human rights present problems different from other international matters. Traditionally, human rights have been viewed as a domestic issue, not based on material interdependencies between states.² Some observers argue that international human rights derive from moral interdependencies between states.³ However, in practice, human rights remains almost exclusively a domestic issue. It is because human rights are considered to be a domestic issue that the temptation exists for states to limit resources and expenditures on this area. Typically, poorer states devote fewer resources and place less emphasis on human rights than richer countries. Where resources are scarce, human rights are less likely to be a priority. Corruption and authoritarianism are more likely to exist within poorer, especially developing, nations. Autocratic regimes often pay scant attention to human rights. Owing to the disparate attention given to human rights issues, international attention is required in order to ensure state compliance with human rights standards. The reasons behind the need for international supervision are also its weakness; compliance with international standards is easier to organise amongst richer democratic states than poorer authoritarian countries, despite the greater need to implement human rights within the latter group.⁴

Conflicts on human rights issues are often presented as conflicts between states’ values. Governments frequently use cultural or religious values to justify taking positions that conflict with human rights norms.⁵ Resolving such conflicts becomes politically sensitive, and compromise often appears unfeasible.⁶ Invocations of cultural differences may be legitimate, for example when states rely on those differences during the setting of an educational curriculum. Such invocations, however, typically relate to uncontroversial human rights matters upon which the Council may undertake work, but which seldom arise within Council discussions. Franck argues that, although cultural sensitivities can affect the way a fact is perceived, it is more likely that ‘disagreement over the facts merely reflects wishful thinking or wilful deception, a hypocritical avoidance of the fundamental rules of international conduct by lying’.⁷ One example is where questionable claims about ‘cultural sensitivities’ are invoked to justify oppression of homosexuals.⁸ Although some states, particularly those heavily influenced by faiths such as Roman Catholicism or Islam, might disagree with homosexual rights, recent events in some African states, such as Uganda and Malawi, have demonstrated the misuse of ‘cultural sensitivities’ to oppress homosexuals.⁹ Divergence between developing and developed states, under the guise of ‘cultural sensitivities’, hampers efforts to take action on many human rights issues.¹⁰

International human rights organisations with broader global representation have greater overall potential for conflicts under the guise of ‘cultural sensitivities’ in comparison to regional organisations. An organisation like the European Court of Human Rights deals with states that may have cultural differences, but enjoy a relatively greater level of agreement on human rights. In comparison, the UN’s global membership represents all cultures, which can give rise to diametrically opposing views on some human rights issues. All European Union states are party to the European Convention on Human Rights, binding them to these norms. UN members are not all party to the same human rights treaties, nor are they subject to enforcement mechanisms such as the European Court of Human Rights. States at international organisations can, therefore, more easily manipulate regional differences and use them as a tactic to justify non-compliance with human rights.

The African and American human rights courts encounter more difficulties than the European Court. Within developing countries, state capacity is far lower and this impacts upon the implementation of human rights. That limitation in turn creates internal conflicts between the institution and its members. Tensions also arise within developing states regarding the Western-influenced human rights, which arguably creates conflicts that do not exist within the Western world. Many non-Western states lack the natural rights traditions that led to today’s human rights regimes. Developing states also label human rights as ‘Western imperialism’. Weiss argues that this ‘inability to move beyond a simplistic and ritualized North–South pattern is definitely a debilitating ailment’¹¹ at the UN and non-homogeneous regional institutions.

Politicisation of international organisations is a complex concept. The very nature of international organisations is political, and therefore some degree of politicisation will always exist. Lyons et al. define politicisation of international organisations as the introduction of unrelated controversial issues by countries seeking to further their own political objectives.¹² The term ‘politicisation’ is used where political discussions unrelated to the particular debate occur at an organisation or body. Politicisation of that particular kind was not commonplace throughout all of the Commission’s existence. It did, however, increase towards the end, and contributed to its demise. Heinze adds that politicisation does not just occur at the discursive level, although that level may make the politicisation more overt.¹³ State actions at the Commission, for example voting in blocs and selectivity regarding country-specific human rights situations, demonstrate politicisation in the body’s work.¹⁴

Overt and subtle forms of politicisation are both capable of affecting a body’s ability to fulfil its mandate. Keohane and Nye foresaw the threat to an organisation’s existence where extreme politicisation occurs.¹⁵ Such bodies may lose credibility, become ineffective, or even undermine the legitimacy of their own processes. Organisations that deal with controversial issues are more likely to become politicised than those involving less sensitive matters. Cultural sensitivities and geographical differences give rise to varying stances on controversial issues. States seek to further their own interests and may politicise proceedings in order to achieve their aims.

Many states accused of violations, however justifiably, complain of being victimised by a ‘politicised’ process. Accusations of politicisation – often, but not always justified – are more likely to occur when states’ foreign policy goals conflict with each other, leading to criticism where a controversial issue is raised. Where there is agreement between state members, the organisation’s actions will be viewed as routine or non-political and they will be non-controversial to all countries. However, where states take conflicting positions to each other, particularly on controversial or sensitive issues, those countries are vulnerable to charges of politicisation.

Regionalism is a form of politicisation that played a key role in the Commission’s failure. It continues to dominate the Council’s proceedings. States tend to form alliances with other countries from the same region. Odum claimed that a region should be relatively homogeneous across various purposes or benchmarks.¹⁶ At the UN there are five regional groups: the African Group; the Asian Group; the Latin American and Caribbean Group (GRULAC); the Western European and Others Group (WEOG); and the Eastern European Group. Member states join the appropriate regional group based on their geographic location.¹⁷ The five regional groups were established in 1963 and are used by the UN to ensure proportionate geographic representation when apportioning seats or membership to UN bodies.¹⁸ However, geographic regional groups are not the only form of alliances at the UN.

Political coalitions have, over time, become as influential as the geographically linked groups.¹⁹ Developing nations have formed subgroups, within or across regional groups, asserting collective strength to pursue collective aims. Weiss maintains that ‘the various roles on the international stage and in the global theater are played by actors from the two major troupes, North and South’.²⁰

He argues that the end of East–West tensions, with the fall of the Soviet Union, saw a shift to another world rift, this time between the North and the South.²¹ Quoting Black that ‘axis descriptors – developing/developed, non-industrialized/industrialized, rich/poor – are crude and value-laden’,²² Weiss argues that membership of the South/North has nothing to do with geographic location but is rather about economic, social and other similar factors.²³

The UN’s main political groups give strength to Weiss’ argument. Political groups form alliances between either developed or developing states. Furthermore, developing states have formed much stronger political alliances than developed nations owing to far greater need for collective strength on their part. The UN was designed and created by colonial powers and strong states. With the increasing self-determination of former colonies, political alliances were needed for new states’ interests to be collectively represented at the body. Strong alliances between developing countries allowed them to challenge the world economic order as set out by industrialised nations,²⁴ and to secure methods for trade, development, and economic growth.

Use of regional groups and, even to some extent, political alliances is not surprising within an intergovernmental body. Although these groupings can confer benefits, the impact of regionalism is not always positive. As will be shown throughout the book, groups, blocs and alliances can hinder the effectiveness of the discussions at the Council, hamper the discharge of the body’s mandate and undermine its credibility.

1.1.2 The UN Commission on Human Rights

Human rights ceased to be predominantly viewed as a fundamentally dome...