(Delivered September 6, 2006)
very birth of the United Nations, protecting and advancing
fundamental human rights has been one of the primary objectives of
the organization. The drafters of the Charter of the United
Nations 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, such as the Universal Declaration on Human
Rights, which the General Assembly passed in 1948, form the core of
international standards for human rights.
U.N.'s record in promoting fundamental human rights in recent times
has been one of failure and inaction. No institution illustrated
this failing more than the U.N. Commission on Human Rights (CHR).
As the premier human rights body in the U.N. system, the CHR was
charged with holding "public meetings to review the human rights
performance of States, [adopting] new standards and [promoting]
human rights around the world."
Sadly, the CHR devolved into a feckless organization that human
rights abusers used to block criticism or action to promote
Two prominent examples of politicization and the selectivity by the
with poor human rights records successfully sought out seats
on the Commission to block scrutiny. Members
with dubious human rights records elected to the Commission in
recent years included Algeria, China, Cuba, Pakistan, Russia,
Saudi Arabia, Sudan, Syria, Vietnam and Zimbabwe. Libya served as
chairman of the Commission in 2003, despite its ties to the
Lockerbie airliner bombing and its own domestic human rights
The U.S. ambassador walked out of the Economic and Social Council
(ECOSOC) in 2004 after Sudan's election to the Commission despite
its role in Darfur. As noted by Secretary-General Kofi Annan, "the
Commission's capacity to perform its tasks has been increasingly
undermined by its declining credibility and
professionalism. In particular, States have sought membership
of the Commission not to strengthen human rights but to protect
themselves against criticism or to criticize others."
Commission on Human Rights routinely singled out Israel for
discriminatory treatment. For
instance, the Commission's agenda devoted a special item to
censuring Israel, debates in the Commission focused
disproportionately on condemning Israel, the number of
country-specific resolutions against Israel was equivalent to the
combined total adopted against all other countries, and emergency
special sessions and special sittings were frequently
dedicated to condemning Israel.
By contrast, issues such as the human rights violations in
Sudan, China, Cuba, and other nations were subject to minimal
disrepute of the CHR grew to the point where even Secretary-General
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."
The Secretary-General went on to recommend replacing the CHR with a
new, smaller Human Rights Council that would review the human
rights practices of all U.N. member states. The Council was to be a
standing body, able to meet when necessary, with stronger standards
for membership, such as being elected by two-thirds of the
General Assembly and possessing a strong record on human rights,
and be charged with reviewing the human rights of every U.N. member
state. Thus the stage was set for a new, more effective United
Nations body to address human rights. Sadly, this historic
opportunity was squandered as the United Nations fell victim to the
political infighting that all too often afflicts that
World Summit Outcome Document did follow through on the
Secretary-General's proposal to replace the Commission with a
new Human Rights Council (HRC). However, the Outcome Document
contained few details beyond assigning the Council responsibility
for "promoting universal respect for the protection of all human
rights and fundamental freedoms for all, without distinction of any
kind and in a fair and equal manner" and instructing it to
"address situations of violations of human rights, including
gross and systematic violations, and make recommendations thereon
[and] promote effective coordination and the mainstreaming of human
rights within the United Nations system."
All details of the Council, including its mandate, operations,
size, membership, working methods, and procedures were left to
subsequent negotiation in the General Assembly.
in the General Assembly fell considerably short of proposals
by the Secretary-General, non-governmental organizations, and
the United States and other countries interested in making the body
more effective than the Commission. Specifically:
Council has no criteria for membership other than geographical
than adopt strong criteria to prevent human rights abusers from
sitting on the new Council, member states are merely instructed to
"take into account" a candidate's human rights record when they
vote. The lack of membership criteria leaves the Council open
to infiltration and manipulation by the world's worst human rights
abusers. Not even states under Security Council sanction are
of the Council are elected by an absolute majority of the General
Assembly, not the two-thirds majority sought by the
Secretary-General and the U.S. Each
country must get at least 97 votes in the General Assembly.
This is a small improvement over the process for the CHR.
Commission members were selected by the 54 countries of the
Economic and Social Council, which were chosen by the General
Assembly with little regard for human rights. ECOSOC rubber-stamped
slates of candidates proposed by the five U.N. regional groups that
usually included only as many countries as there were openings. The
two-thirds requirement would have set a higher hurdle for
membership and made it harder for countries with dubious human
rights records to win seats on the Council with the intention of
undermining the new body from within.
resolution set a higher bar to suspend a HRC member-a vote of
two-thirds of the General Assembly-than the simple majority
necessary to win a seat. While
there is a provision for suspending a Council member that commits
gross and systematic violations of human rights, that step can be
taken only with the agreement of two-thirds of the members of the
General Assembly. Not even 50 percent of the General Assembly could
agree that Sudan was guilty of human rights violations in November
Council is charged with conducting a universal periodic
review, the conclusions of the review would not prevent those
countries found complicit in human rights violations from
participating in the Council. Even if
the review finds numerous and serious human rights abuses, neither
the Council nor the General Assembly is required to take
Council is only marginally smaller than the Commission, from 53
members to 47. This
opens the door to states with questionable human rights records.
Instead of a small body designed to attract the best citizens of
each regional group, the Council has a large membership that
requires a larger number of candidates.
sessions of the Commission can be called by only one-third of the
Council's membership. Hailed as
an improved capacity to deal with urgent human rights situations,
the composition of the new Council makes it likely that special
sessions will be politically driven. This concern was borne out
during the inaugural meeting of the Council, which was immediately
followed by a special session to censure Israel.
failings led the U.S. to vote against the HRC in the General
Assembly. "Absent stronger mechanisms for maintaining credible
membership, the United States could not join consensus on this
resolution," explained 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."
Significantly, well-known human rights abusers Burma, China,
Cuba, Ethiopia, Libya, Saudi Arabia, Sudan, Syria, and Zimbabwe all
voted in favor of the new Council.
In reaction, the Bush Administration announced that the U.S. would
not run for a seat on the HRC in 2006 but would continue its
financial support and might run for seat in 2007 if the
Council proves effective.
Second Failed Test
second test was the May 9 election for membership on the
Council. Prior to the election, candidates offered pledges of
their adherence to human rights standards and justifications for
their candidacy. These public statements were in many instances
Kafkaesque in their absurdity and deviance from historical
record. For instance:
Chinese government pledged that it is "committed to the promotion
and protection of human rights and fundamental freedoms of the
Chinese People…. The National People's Congress has adopted
nearly 300 laws and regulations related to the protection of
civil and political rights, ensuring complete freedom of the
Chinese people in movement, employment, access to information,
religious belief and ways of life."
Yet the State Department's Human Rights report noted that China is
an authoritarian state characterized by numerous and
serious human rights abuses including trafficking in women and
children, restrictions on the freedom of assembly, restrictions on
religious freedom, arbitrary arrest and detention, among many other
policies in contravention of the Universal Declaration of Human
that "Either in the area of civil and political rights…the
Cuban people can show to the world, with deep modesty, but with
full satisfaction and pride, its tremendous achievements."
The State Department, however, reports Cuba is a totalitarian state
characterized by numerous, serious human rights abuses
including arbitrary arrest and detention, limitations on
freedom of speech and press, restrictions on freedom of movement,
and severe restrictions on worker rights.
Arabia claims a
"confirmed commitment with the defense, protection and promotion of
human rights…. Saudi Arabia pursues the policy of
active cooperation with international organizations in the field of
Human Rights and fundamental freedoms."
The State Department criticized Saudi Arabia for its serious
human rights failings including arbitrary arrest, discrimination
toward women, restriction of worker rights, and lack of religious
The May 9
election validated U.S. concerns that the new Council lacked
sufficient criteria to prevent major human rights abusers from
gaining seats. The transparently disingenuous nature of their
pledges did not keep China, Cuba, and Saudi Arabia from gaining
support from a majority of the General Assembly. They were joined
by fellow abusers and unfree governments in Algeria and Russia.
These countries were key players in undermining the effectiveness
of the Commission on Human Rights, and so it is very likely that
they will play the same role on the Council.
General Assembly had the opportunity to prevent human rights
abusers from gaining seats on the Council but did not take
advantage of it. Despite promises by a number of nations to vote
against human rights abusers, the membership of the Council remains
only marginally better than the Commission. Of the 47 new members,
only 24 were ranked as "free" by Freedom House in its 2006
worldwide survey of political rights and civil liberties
versus 24 on the 53 member Commission.
The new Council includes nine countries ranked "not free" in
political and civil liberties: Algeria, Azerbaijan, Cameroon,
China, Cuba, Pakistan, Russia, Saudi Arabia, and Tunisia. Only
19 Council members were ranked as "free" or "mostly free" by the
2006 Index of Economic Freedom, published by The Heritage
Foundation and The Wall Street Journal, versus 18 on
the Commission in 2006.
situation should surprise no one. After all, every nation claims
membership in the U.N. even though many fail to adhere to the
principles embodied in the U.N. Charter, including the
commitment to fundamental human rights. Indeed, many member
states actively subvert those principles and repress their own
populations-less than half of the United Nations member states are
ranked as "free" by Freedom House in terms of political rights and
civil liberties and less than half were ranked as economically
"free" or "mostly free" by the Index of Economic Freedom.
Public scrutiny and pressure surrounding the election of the
Council's first slate of members failed to spur
conscientious behavior. We can expect little improvement, as
pressure and scrutiny will likely decline in future
Rights Council convened for the first time on June 19, 2006. The
first session was marked by procedural issues designed to carry on
many of the operations of the CHR. For instance, the Council
extended the mandates of the 28 thematic and 13 country mandates
established by the Commission and carried out by independent
human rights experts (known as Special Procedures). The
Council also established a "working group" to begin to
consider how the universal periodic review of the human rights
performance of all U.N. member states should operate, how often
countries should be reviewed, and when to begin the
modest action was disappointing. The extension of mandates was both
good and bad. Some experts conduct important work, and there was
significant effort put forth by some countries to eliminate the
country-specific monitors. However, not all mandates or experts are
worthwhile. For instance, Jean Ziegler is the current Special
Rapporteur on the Right to Food and also serves as the vice
president of the organization that grants the "Moammar Khaddafi
Human Rights Prize."
Other rapporteurs have ventured far from the core functions of
their mandates. The Council established an "open-ended
intergovernmental working group to formulate concrete
recommendations on the issue of reviewing and, where necessary,
improving and rationalizing all mandates, mechanisms,
functions and responsibilities."
It is uncertain to what extent the mandates and the
rapporteurs will be scrutinized or if the Council will
undertake to tighten their mandates.
that the Council undertook little action toward implementing the
universal periodic review was unacceptable. This process was
considered the most important achievement toward keeping the
Council from replicating the worst weaknesses of the Commission. It
is unknown whether the system that is ultimately established
will conduct its assessments of human rights practices with the
frequency and frankness that would make the Council a
true improvement over the Commission.
disappointment was the inability of the Council to adopt a
resolution addressing the victims of Darfur. But the singular
failure of the first Council session was the hostility of the body
toward Israel. On this subject, the Council proved just as
vulnerable to politicization and selective judgment as the
Commission. In an extended déjà vu experience, the
Council-led by the Organization of the Islamic Conference
(OIC)-repeatedly singled out Israel for censure despite the efforts
of some Western countries:
Council's only substantive debate was subject to invective directed
at Israel. Efforts by the OIC to focus the agenda solely on Israel
were overcome. But the five topics on the agenda were led by the
"human rights situation in the occupied Arab Territories,
Council's sole country-specific resolution censured Israel by a
vote of 29 to 12, and it adopted a decision to discuss human rights
violations committed by Israel in the Palestinian territories
in all of the Council's meetings. No mention was made of
Palestinian provocations or human rights violations.
Council extended all the mandates of the Commission for specified
periods, except for the "Special Rapporteur on the situation of
human rights in the Palestinian territories occupied since 1967"
which was extended "until the end of the occupation."
following the end of the first session, the Council held its
first "Special Session" with the support of 21 out of 47
members, during which it censured Israel and decided to dispatch
the Special Rapporteur on the occupied Palestinian territories on a
Council convened its second "Special Session" on August 11, 2006,
during which it adopted a resolution 27 to 11 with 8 abstentions
that strongly condemned Israel for "violations of human rights and
breaches of international humanitarian law in Lebanon" and
established a high-level inquiry commission for Lebanon which
was immediately dispatched to the region.
There was no reference to provocations by Hezbollah beyond a
vague call for "all concerned parties" to respect the rules of
international humanitarian law, refrain from violence against
civilians, and to treat detained combatants and civilians in
accordance with the Geneva Conventions.
that a new Human Rights Council would rectify the poor record of
the United Nations Commission on Human Rights on holding human
rights abusers to account has, sadly, proven illusory. The
reformed body does not incorporate the types of reforms that would
have led inevitably to a more effective body. While the HRC has the
potential to be a stronger body than its discredited
predecessor, such an outcome depends entirely on the actions
of its members. Based on the short record of the Council, the
members have turned their back on this opportunity and have chosen
to repeat many of the serious mistakes of the Commission. This
disappointing situation underscores the wisdom of the Bush
Administration in taking a wait-and-see attitude toward the
Council will convene again in September 2006 for three weeks; in
December 2006 for two weeks; and in March 2007 for four weeks. All
of these sessions present opportunities for the Council to
review the mandates, adopt a strong universal periodic review
process, and distance itself from the disgraceful preoccupation
with Israel that characterized its first session. Indeed, the
U.S. should work with Council members to:
that the Council members with the worst human rights
records-Algeria, China, Cuba, Pakistan, Russia, and Saudi Arabia-
be the first targets of the universal periodic reviews.
will be enormous pressure to water down the universal periodic
review process. One way to quickly gauge how useful the
process will be is to have the countries with the worst human
rights records-those most interested in whitewashing the reviews-
assessed first. The quality of these reviews will be a useful tool
to measure the dedication, effectiveness, and willingness of the
HRC to confront human rights abusers and to resist the influence of
those most determined to undermine its work. Only if the HRC
conducts strong, condemnatory reviews of these well-known abusers
should the U.S. consider seeking a seat in the
country-specific mandates. Countries
with poor human rights records have been transparent in their
desire to have country-specific mandates minimized. They
oppose them because they dislike being singled out. Some have
suggested that the universal periodic review process and the
opportunity to call special sessions reduce the necessity for
such mandates. However, country-specific mandates are a
valuable means for addressing gross, systematic, and sustained
human rights abuses by singling out individual nations and
demanding action. They should not be abandoned.
the review of mandates to a stringent process.
often, the special rapporteurs range widely from their
assigned areas. They also are subject to politicization. The review
of mandates should strive to more tightly define and focus their
scope to the issue under consideration.
the disheartening beginning of the Human Rights Council, its
members possess the ability to change course and demonstrate that
they are determined to make the body an effective advocate for
fundamental human rights. Only if this occurs should the U.S.
consider running for a seat on the Council. If the universal
periodic review process is inconclusive or incomplete by the
spring, the U.S. should again wait a year before deciding whether
to run for a seat. If the review process or the review of mandates
continues to fall short, or the disgraceful politicization of the
Council persists, it would be a telling sign that the HRC is not
worth the trouble of rallying the support necessary to win a seat.
Moreover, it should lead the U.S. to reconsider its
financial support for the Council.
D. 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. This paper is based on his testimony before the
Committee on International Relations, U.S. House of
Representatives, on September 6, 2006.