Delivered July 26, 2007
Since the birth of the United Nations, protecting and advancing
fundamental human rights has been one of the organization's primary
objectives. The drafters of the U.N. Charter included a pledge
by member states "to reaffirm faith in fundamental human rights, in
the dignity and worth of the human person, in the equal rights of
men and women." U.N. treaties and conventions, such as the
Universal Declaration on Human Rights, which the General Assembly
passed in 1948, form the core of international standards for human
Yet the U.N.'s
recent record in promoting fundamental human rights is riddled
with failure and inaction. For nearly six decades, the U.N.
Commission on Human Rights (CHR) epitomized this failure as the
premier U.N. human rights body charged with reviewing the human
rights performance of states and promoting human rights around the
world. Sadly, the Commission devolved into a
feckless organization, which human rights abusers used to block
criticism, and a forum for attacks on Israel. The Commission's
disrepute grew so great that even former U.N.
Secretary-General Kofi Annan acknowledged, "We have reached a
point at which the Commission's declining credibility has cast a
shadow on the reputation of the United Nations system as a whole,
and where piecemeal reforms will not be enough."
deliberations and negotiations, the U.N. General Assembly voted to
replace the Commission with a new Human Rights Council in
March 2006. Regrettably, during the negotiations, the
General Assembly rejected many basic reforms and standards
that had been proposed to ensure that the Council would not repeat
the mistakes of the Commission. For instance, the U.S. wanted
a much smaller body than the 53-member Commission to enable it to
act more easily; a high threshold for election to the Council (a
two-thirds vote of the General Assembly); and a prohibition on
electing nations to the Council that are under U.N. Security
Council sanction for human rights abuses.
A Sanctuary for
produced a 47-member Council that is only marginally smaller than
the Commission. The HRC has no hard criteria for membership other
than quotas for each of the regional groups in the U.N. and a
requirement that Council members be elected by a simple majority of
the General Assembly (currently 97 of 192 votes). No state, no
matter how poor its human rights record, is barred from
membership. Even states under Security Council sanction for
human rights abuses may become members.
instead, instructs U.N. member states that "when electing members
of the Council, [they] shall take into account the contribution of
candidates to the promotion and protection of human rights."
Candidates are also asked to submit "voluntary pledges and
commitments" on their qualifications for the Council based on their
past and future adherence to, and observance of, human rights
standards. The toothlessness of this instruction quickly
became evident when notorious human rights abusers Algeria, Cuba,
China, Iran, Pakistan, Saudi Arabia, and Russia ran for election,
asserting their strong commitment to human rights and pledging
their commitment to such standards in the future.
Because of these
weaknesses, the U.S. voted against the resolution creating the HRC
and announced that it would not run for a seat on the Council, but
would consider running in the future if the Council proved
effective. "Absent stronger mechanisms for maintaining
credible membership, the United States could not join consensus on
this resolution," explained then U.S. Ambassador to the U.N. John
Bolton. "We did not have sufficient confidence in this text to be
able to say that the HRC would be better than its predecessor."
Ambassador Bolton's statement has proven prophetic.
Less than half of
the old Commission's members in 2005 were considered "free" by
Freedom House. China, Cuba, Egypt, Pakistan, Sudan, and
Zimbabwe-some of the world's worst human rights abusers-routinely
used their positions on the Council to block scrutiny of their
own practices and to launch spurious attacks on other countries for
political reasons (e.g., Israel) or for speaking openly about their
human rights violations (e.g., the U.S.).
The May 2006
election showed that simply creating a new Council had not
convinced the General Assembly to spurn the candidacies of
human rights abusers. Overall, the Council's membership in 2006 was
only marginally better than the Commission's membership in
2005. The first Council election in 2006 produced a Council in
which 25 out of 47 members (53 percent) were ranked "free" by
Freedom House. Some of the more disreputable human
rights abusers-Burma, North Korea, Sudan, and Zimbabwe-did not run
for seats. Iran and Venezuela ran for seats but were unsuccessful,
although Venezuela received enough votes (101) to win a seat if
other states had not won more support.
minor successes, a number of states with dismal human rights
records won seats, including Algeria, Azerbaijan, Cameroon,
Cuba, China, Pakistan, Saudi Arabia, Tunisia, and Russia.
members pledge their commitment to human rights standards when they
run for election. As a Council member, a country is supposed
to "uphold the highest standards in the promotion and protection of
human rights." This requirement did not translate into
better promotion and protection of human rights at the HRC. On the
contrary, the Council's actions reveal a profound lack of
commitment to human rights. Council decisions reveal that the
bulk of its membership has declined to scrutinize major
violators of human rights and has instead focused
disproportionately on censuring Israel.
In its first
year, the Council failed to address ongoing repression in Belarus,
China, Cuba, North Korea, and Zimbabwe and many other dire human
rights situations around the world. Nor did the HRC censure the
government of Sudan for its role in the genocide in Darfur.
Instead, it held one special session on Darfur and adopted one mild
resolution and four mild decisions expressing "concern" regarding
the human rights and humanitarian situation in Darfur,
dispatching a "High-Level Mission to assess the human rights
situation in Darfur and the needs of the Sudan in this regard."
However, the Council did find the time to hold three special
sessions on Israel and pass 10 resolutions condemning Israel
and another four decisions on Israel's human rights record.
More than 70 percent of the Council's country-specific resolutions
and decisions have focused on Israel.
discredited Commission had a better record. Over a 40-year period,
only 30 percent of its resolutions condemning specific states for
human rights violations focused on Israel.
Some of this
disappointing performance can be blamed on the negligible
difference in quality between the Council's membership and the
Commission's membership. The situation is aggravated by the
shift in proportional representation of regions. The Commission had
greater representation of Western democracies, while Africa
and Asia control a majority of the Council. This has
dramatically increased the influence of groups like the
Non-Aligned Movement (NAM) and the Organization of the Islamic
Conference (OIC). Members of the NAM also held a majority of seats
in the Council's first year. The OIC held 17 seats, more than
the one-third (16 seats) required to call a special session.
Unsurprisingly, both groups have repeatedly used their influence to
attack Israel and to protect abusive states from Council
However, the most
frustrating aspect of the Council's first year has been the
reluctance of free, democratic states, including South Africa
and India, to support human rights efforts on the Council. A U.N.
Watch analysis of significant actions taken by the Council during
its first year concluded that only 13 of the Council's 47 members
were net positive contributors to its human rights agenda.
Four free democracies-Indonesia, Mali, Senegal, and South
Africa- were among the countries with the worst record.
Based on the past
year's record in the Council, the 2007 membership, and the record
of the General Assembly, the prospects for reform or
improvement are dim.
The prospects for
improved performance by the Council depend entirely on the members
of the HRC who set and adopt the agenda, rules, procedures,
and resolutions, and on the General Assembly that elects the
Council membership and could reform the body in the future.
creating the Council requires the General Assembly to review the
status of the Council within five years, or by 2011. However,
many member states have clearly indicated that they are pleased to
have a dysfunctional Council and support for strengthening the
body in the General Assembly cannot be counted on.
of this is the May 2007 election of members to the Council. The
2007 election marked a regression from 2006. The number of
"free" countries on the Council according to Freedom House rankings
declined, and the number of "not free" countries increased. 
significant victory was blocking Belarus from winning a seat. Yet
until about a week before the election, Belarus and Slovenia were
the only two candidates for the two open Eastern European seats.
Only enormous pressure from human rights groups and the U.S.
persuaded Bosnia and Herzegovina to run, narrowly denying Belarus a
seat on the Council. However, Angola, Egypt, Qatar, and
Bolivia- states with dismal human rights records-were elected
concern is that, unlike the robust competition for seats in the
2006 election, only two regions-Eastern European States and Western
Europe and Other States-offered more candidates than the number of
available seats in the 2007 election. The decision of
the African, Asian, and Latin American and Caribbean regions to
offer only enough candidates to fill their open seats marked a
disturbing return to the practices of the Commission and
defeated the purpose of competitive elections in the General
Assembly, which were supposed to offer a larger choice of possible
candidates in order to select the best possible members for
Nor do the
Council members seem inclined to strengthen the body. On the
contrary, the Council made a series of decisions in its 5th session
that significantly weakened its ability to objectively advance
and advocate human rights or fall far short of the expectations of
the United States and most human rights groups.
adopted by the Council in its June session undermine the ability of
the Council to be an effective advocate for advancing basic human
Periodic Review. The Council, as required in the General
Assembly resolution creating the body, adopted a "universal
periodic review" of the human rights situation in all U.N. member
states. This step is welcome, but the proposed procedures for the
review are very weak and virtually assure a milquetoast
outcome. The review for every country, whether it is Sweden or
Sudan, is limited to three hours. The review will be a country-led
process in which the "country under review shall be fully involved
in the outcome" and requires the review to "take into account
the level of development and specificities of countries."
Input from non-governmental organizations will be minimal.
Moreover, reviews will occur every four years-regardless of
circumstances in the country-and only after exhausting "all efforts
to encourage a State to cooperate with the UPR [Universal Periodic
Review] mechanism" would the Council "address, as appropriate,
cases of persistent non-cooperation with the mechanism." In
other words, a genocide or massive political crackdown could occur
in Sudan, China, Venezuela, or some other country and the Council
could wait four years or more before examining whether a
country has addressed the human rights concerns raised during the
Experts. The Council decided to maintain the system of
independent experts charged with thematic human rights issues, such
as freedom of opinion and expression, torture, and the right to
food, but weakened their ability to investigate and report their
findings. Under the new procedures, a committee appointed by
the HRC will appoint these experts from a roster of "qualified"
candidates. This process increases opportunities for the
Council to directly pressure and influence the experts.
- New Code of
Conduct. Moreover, the experts will be subject to a new Code of
Conduct designed to restrict the independence of the human rights
experts and the sources for their reports. For instance, experts
are required to "show restraint, moderation and discretion" when
implementing their mandate, avoid using "unfounded or politically
motivated" communications or "abusive" language, and not rely
on "reports disseminated by mass media" or non-governmental
organizations or persons unless they are the "victim of
violations…and claiming to have direct or reliable knowledge
of those violations substantiated by clear information."
These restrictions offer ample opportunities for countries to
dispute, block, and otherwise criticize reports by experts.
- Country-Specific Experts. A
majority of the Council sought to eliminate all experts focused on
investigating human rights abuses in specific countries. The effort
failed when European countries threatened to walk out. However, the
Council did eliminate the experts focused on Belarus and Cuba,
despite extensive evidence of ongoing violations. The Council chose
to maintain experts for Burma, Burundi, Cambodia, the
Democratic Republic of the Congo, Haiti, Liberia, North Korea,
Somalia, and Sudan, but many countries plainly plan to eliminate
them in the near future through a "review" process. As with the
thematic experts, the country experts will also have to abide by
the Code of Conduct and will be selected by the committee appointed
by the Council.
- Israel. In a disappointing
repetition of one of the Commission's most egregious
discriminatory practices, the Council voted to keep Israel as
the sole country assigned a permanent expert charged with
investigating the "the situation of human rights in the Palestinian
territories occupied since 1967." While it sounds as if this
mandate might cover possible human rights abuses by Palestinians
and Israelis in the territory, this is not the case. John
Dugard, the special rapporteur on the situation of human
rights in the occupied Palestinian territory, said "it was
understood that his mandate was limited to investigate human rights
violations by Israelis and not by Palestinians." Moreover, the
mandate is one-sided and presumes Israel's guilt through
language on the duration of this mandate, which extends "until
the end of the occupation." Unsatisfied with the
efforts to condemn Israel in earlier sessions or with the
successful effort to permanently install a blatantly
discriminatory mandate focused solely on Israel, the Council passed
an additional two resolutions condemning Israel in June.
As summarized by
the U.S. Department of State, these institution-building procedures
are "seriously flawed" and will make the many problems of the
Council "even worse, by terminating the mandates of the U.N.
Rapporteurs on the Governments of Cuba and Belarus, two of the
world's most active perpetrators of serious human rights
violations, and singling out Israel as the only country subject to
a permanent agenda item."
Should the U.S.
Join the Council?
suggested that the performance of the Council would be improved if
the U.S. had been a member of the Council or could be improved if
the U.S. sought a seat on the Council in the future. This is very
unlikely. Winning a seat on the Council would not necessarily give
the U.S. greater voice or influence. Any U.N. member state can
comment on and speak to issues before the Council, and the U.S. has
frequently expressed its support of or opposition to various
resolutions and decisions.
membership is based on geographic representation, even if the
U.S. won a seat on the Council, it would simply displace one
of the seven countries representing the Western Europe and Other
States region, which already vote largely as the U.S. would vote.
In numerous votes over the past year, the Council has adopted
resolutions over the objection of 11 or 12 Western nations.
U.S. membership on the Council would not change this situation. The
gain from a U.S. vote on the Council would be marginal at best.
Indeed, the U.S.
experience over the past year would likely mirror that of Canada.
Over the past year, Canada has assumed the traditional U.S. role of
raising controversial resolutions and demanding votes. Canada's
admirable actions have not been successful. On the contrary, they
have resulted in retaliation and-in one remarkable instance-
blatant and willful distortion of the record when the HRC declared
that the new procedures were adopted by consensus despite Canada's
insistence that it never gave its consent or even received a copy
of the resolution text. Bizarrely, the Council voted 46 to 1 that
Canada had indeed agreed to the consensus. As noted by the
U.S., the procedural maneuvers to obtain consensus on the
resolution violated both the spirit and letter of the rules of the
We are concerned
about the procedural irregularities employed last night
denying Council members the opportunity to vote on this agenda. The
Human Rights Council was intended to be the world's leading
human rights protection mechanism. Its proceedings should be a
model of fairness and transparency. Instead, in the interest
of political expediency, procedural irregularities denied members
the right to an up or down vote on principled human rights
concerns-a right guaranteed by the rules of the institution.
There is no
reason to expect that the U.S. would be treated differently than
Canada by the human rights abusers that have successfully used the
Council to undermine human rights rather than protect them.
Hopes that the
Human Rights Council would rectify the poor record of the U.N.
Commission on Human Rights in holding human rights abusers to
account have proven illusory. The Council ultimately reflects
the quality of its membership. The General Assembly simply did not
incorporate the protections and standards for membership that would
have led to a more effective body. Predictably, human rights
abusers are running the Council agenda in the same manner they did
with the Commission.
The U.S. should
not be satisfied with the status quo. Congress and the Bush
Administration should continue their efforts to improve the HRC's
membership, procedures, mechanisms, and institutions. However,
we must also be realistic in recognizing that most members of the
General Assembly and the Council do not want an effective Council,
and that America's best efforts will likely fall short.
As a result, the
U.S. should refuse to lend the Council the credibility of U.S.
membership or the symbolic support of U.S. contributions until such
time as the Council takes its responsibilities seriously by
censuring major human rights abusers, exposing their
reprehensible actions to public scrutiny, and eschewing its
disproportionate focus on Israel.
Brett Schaefer is Jay
Kingham Fellow in International Regulatory Affairs in the
Margaret Thatcher Center for Freedom, a division of the Kathryn and
Shelby Cullom Davis Institute for International Studies, at The
Heritage Foundation. These remarks were delivered July 26, 2007,
before the U.S. Senate Committee on Foreign Relations, Subcommittee
on International Operations and Organizations, Democracy, and Human