The United Nations Human Rights Council: A Disastrous First Year

The United Nations Human Rights Council (HRC) was established in 2006 to replace the discredited U.N. Commission on Human Rights (CHR). Despite minimal safeguards against capture of the HRC by human rights abusers-the source of the commis­sion's ineffectiveness-HRC supporters, including U.N. High Commissioner for Human Rights Louise Arbour, were quick to declare that the new body represented the "dawn of a new era" in promoting human rights in the United Nations.[1] U.N. General Assembly President Jan Eliasson, who oversaw the reform negotiations, called the council "a new begin­ning for the promotion and protection of human rights" and declared that the council would be "prin­cipled, effective and fair."[2] After nearly a year in exist­ence and four regular sessions and four special sessions, the HRC has clearly been none of these.

The United States was one of only four countries that voted against the U.N. General Assembly reso­lution that created the council.[3] The U.S. cast its vote out of concern that the new council would lack safeguards against the problems that afflicted the CHR. Regrettably, this concern has proved to be well founded:

• The council has mirrored the commission's obses­sive focus on Israel to the detriment of other, more severe human rights situations.
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• It has become a platform for human rights abusers to deflect criticism rather than being held to account.
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• The abusive states are leading an effort to under­mine the few effective aspects of the council, such as the special procedures dedicated to examining human rights abuses in specific countries, and are supporting efforts to weaken the universal periodic review of the human rights practices of all U.N. member states.

The U.S. chose not to run for a seat on the HRC in 2006 and 2007. This was the right decision. Until the council proves effective, the U.S. should not lend its credibility to the flawed body by participating.

However, the U.S. should use its influence to make the body effective by encouraging states with good human rights records to run for seats on the council and by speaking up on situations before the council. The U.S. should encourage the council to maintain procedures that have proven effective and strive to block efforts by human rights abusers to weaken those procedures. It should also seek to make the universal periodic review of council member states as frequent and objective as possible.

The council will make many of these decisions in the upcoming June session. Success in these areas should lead the U.S. to continue its engagement with the council. Failure would demonstrate that the council is simply incapable of effectively ad­vancing fundamental human rights, in which case the U.S. should publicly wash its hands of the council and withhold its portion of the council's budget from its contributions to the U.N.

Human Rights Failure at the U.N.
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."[4] 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.

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 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.[5] Sadly, the commission devolved into a feckless orga­nization that human rights abusers used to block criticism and into a forum for attacks on Israel. [6]The disrepute of the CHR 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."[7]

After lengthy deliberations and negotiations, the U.N. General Assembly voted to replace the com­mission with a new Human Rights Council in March 2006.[8] Regrettably, during the negotiations, the General Assembly rejected many of the reforms and standards that had been proposed to ensure that the council would not repeat the mistakes of the commission.[9] 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. Exten­sive negotiations in the General Assembly produced a 47-member council that is only marginally smaller than the commission, approved a simple majority vote for election rather than the two-thirds require­ment, and did not ban human rights violators from sitting on the council.

Because the resolution creating the HRC lacked serious membership criteria, the U.S. voted against it. "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."[10] Well-known human rights abusers Burma, China, Cuba, Ethiopia, Libya, Saudi Arabia, Sudan, Syria, and Zimbabwe voted in favor of the new council.

After the resolution passed over U.S. objection, the U.S. announced that it would not run for a seat on the council in 2006 but would consider running in the future if the council proved effective. [11]Thus, the U.S. reserved judgment until the council had a chance to prove its merit. As Ambassador Bolton noted, "The real test will be the quality of member­ship that emerges on this council and whether it takes effective action to address serious human rights abuse cases like Sudan, Cuba, Iran, Zimba­bwe, Belarus, and Burma."[12] The council has failed on both counts.

Many Human Rights Abusers Elected to the Council
The resolution that created the HRC established 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 are not excluded.

The resolution instructs U.N. member states that "when electing members of the council, Member States shall take into account the contribution of candidates to the promotion and protection of human rights."[13] 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.[14]

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. Despite their poor human rights records and disingenuous pledges, the General Assembly elected Algeria, China, Cuba, Pakistan, Russia, and Saudi Arabia to the council.[15]

Contrary to the bold predictions that the new council would be a significant improvement over the commission, the council's membership in 2006 was only marginally better than the commission's membership in 2005. The highly touted require­ment for a majority vote was undermined by the secret ballot voting process that shielded govern­ments from accountability for their votes and facili­tated horse trading and negotiations. This yielded only minimal improvement in the ratio of "free" to "partially free" to "not free" countries.(See Table 1.) Less than half of the 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 commission 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.).

As Ambassador Bolton noted, for the council to perform better than the commission, it must start with better membership. The first council election produced a council in which 25 countries out of 47 members (53 percent) were ranked "free" by Free­dom House-a marginal improvement over the commission. 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 have won a seat if other states had not won more support.[16] Despite these 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.

The second council election, held on May 17, 2007, marked a regression from 2006.[17] The num­ber of "free" countries on the council declined, and the number of "not free" countries increased. The only 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, denying Belarus a seat on the council.[18] How­ever, Angola, Egypt, Qatar, and Bolivia-states with dismal human rights records-were elected easily.[19]

An additional concern is that, unlike the robust competition for seats in the 2006 election, only two regions-Eastern European States and the Western Europe and Other States-offered more candidates than available seats in the 2007 election.[20] 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 the council.

The HRC's Disappointing Record
During its first year, the Human Rights Council has proven just as feckless in confronting human rights abuses and just as vulnerable to politically motivated attacks on Israel as its predecessor. 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.[21]

Specifically, according to UN Watch, a Geneva-based nongovernmental organization (NGO) focused on the work of the Human Rights Council, "To date, there have been 12 country-specific HRC resolutions: nine censures of Israel and three non-condemnatory resolutions on Sudan." Even the 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.[22]

In its first four regular sessions and four special sessions, 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 adopted three mild decisions expressing "concern" regarding the human rights and humanitarian situation in Darfur and dispatched a "High-Level Mission to assess the human rights situation in Darfur and the needs of the Sudan in this regard."[23] However, the council did find the time to hold three special sessions on Israel and pass nine strong resolutions condemning Israel.

During more than 10 weeks worth of meetings in its first year, the council:

• Passed 12 resolutions on the human rights situa­tions in only two countries. Nine were one-sided condemnations of Israel. Three were soft, non-condemnatory resolutions on Sudan.
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• Did not adopt a single resolution or decision condemning human rights abuses in 19 of the 20 "worst of the worst" repressive human rights sit­uations as identified by Freedom House in 2007. The 19 other situations-which do not include Sudan-are Belarus, Burma, China, Tibet (China), Côte d'Ivoire (Ivory Coast), Cuba, Equatorial Guinea, Eritrea, Laos, Libya, Western Sahara (Morocco), North Korea, Chechnya (Rus­sia), Saudi Arabia, Somalia, Syria, Turkmenistan, Uzbekistan, and Zimbabwe.[24]
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• Convened its first three special sessions on Israel. In the first special session, it adopted a one-sided resolution condemning Israel but ignoring the provocations of Palestinian armed groups.[25] In a second special session on August 11, 2006, it adopted a resolution that strongly condemned Israel for "violations of human rights and breaches of international humanitarian law in Lebanon" but ignored provocations by Hezbol­lah.[26] The council convened its third special session on November 15, again on Israel.[27]
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• Convened its fourth special session in mid-December 2006 on the human rights situation in the Darfur region of Sudan. The tone and conclusions of the session were markedly differ­ent from those of previous special sessions in that the council took pains not to ascribe any wrongdoing to the Sudanese government. The resulting resolution was non-condemnatory, merely expressing "concern regarding the seri­ousness of the human rights and humanitarian situation." The resolution did not even mention the word "violations," and a European alterna­tive expressing "grave concern" was rejected. [28]
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• Requested a report during the fourth special ses­sion on the situation in Darfur. The investigatory mission was led by Nobel Peace Laureate Jody Williams. The Sudanese government denied the mission entry to Darfur, forcing it to investigate from Ethiopia and Chad. As expected, the mis­sion's report strongly condemned the Sudanese government for orchestrating and participating in "large-scale international crimes in Darfur."[29] Allies of Sudan on the council subsequently rejected the report as invalid because the investi­gatory team had not gone to Darfur. The council finally adopted a weak resolution that "took note" of the Williams report but did not adopt its recommendations or condemn the Sudanese government for its actions in Darfur.[30]
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• Decided in its fourth regular session to discon­tinue consideration of the human rights situa­tions in Iran and Uzbekistan under the 1503 procedure,[31] which involves confidential pro­ceedings to encourage government cooperation. The confidential nature of the proceedings makes it difficult to determine the reasoning for discontinuing consideration of the human rights situations in Iran and Uzbekistan.[32] This decision is an appalling abdication by the coun­cil of its responsibilities, considering that many human rights organizations and the U.S. Depart­ment of State have argued convincingly that severe human rights abuses and government-sanctioned oppression and mistreatment de­mand scrutiny by the council. Despite evidence of extensive human rights abuse, 25 of the coun­cil's 47 members voted to end scrutiny of Iran and Uzbekistan.[33]
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• Adopted two resolutions that condemn "defama­tion of religions" but specifically mention only Islam. After a Danish newspaper published car­toons of the prophet Mohammed in 2005, the Organization of the Islamic Conference (OIC) led an effort to persuade the commission and then the council to adopt a resolution against the defamation of Islam. In June 2006, the council responded by passing a resolution merely requir­ing expert reports. However, it passed a second resolution in March 2007 that expressed "deep concern at attempts to identify Islam with terror­ism, violence and human rights violations" and urged states to "to take all possible measures to promote tolerance and respect for all religions and their value systems and to complement legal systems with intellectual and moral strategies to combat religious hatred and intolerance."[34] Worryingly, the resolution asserts that the right to freedom of expression may be limited out of "respect for religions and beliefs."

All council 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."[35] Yet the council's actions reveal a profound lack of commitment to either human rights or freedom.

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 from the commission, which had greater represen­tation of Western democracies, to the council, in which Africa and Asia control a majority. This has dramatically increased the influence of groups like the Non-Aligned Movement (NAM) and the 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 scrutiny.

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. As UN Watch noted:

[A]lthough slightly more than half of the council's 47 members are free democracies, only a minority of these countries-about a dozen-have consistently voted in defense of the values and principles that the council is supposed to promote. Instead, the body has been dominated by an increasingly bra­zen alliance of repressive regimes seeking not only to spoil needed reforms but to un­dermine the few meaningful mechanisms of UN human rights protection that already ex­ist. Their goal is impunity for systematic abuses. Unfortunately, too many democra­cies have thus far gone along with the spoil­ers, out of loyalty to regional groups and other political alliances.[36]

A UN 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 17 receiving the worst score of -16 points out of a possible -20 points. India did minimally better, receiving a score of -15 points.[37]

The Case Against Participation
The council's disappointing record led the U.S. to decline to seek election to the council for the second year in a row in 2007. As State Department Spokes­man Sean McCormack explained:

We believe that the Human Rights Council has thus far not proved itself to be a credible body in the mission that it has been charged with. There has been a nearly singular focus on is­sues related to Israel, for example, to the ex­clusion of examining issues of real concern to the international system, whether that's in Cuba or Burma or in North Korea.

So we are going to remain as observers to the Human Rights Council and we hope that over time, that this body will expand its focus and become a more credible institution representa­tive of the important mission with which it is charged. But nonetheless, the United States will remain actively engaged not only in the UN system but also outside of the UN system in promoting human rights.[38]

The U.S. decision not to run for a seat on the Human Rights Council drew sharp criticism from human rights groups, U.N. advocates, and political opponents. These groups claim that the U.S. is undermining the council's credibility and that it would be a stronger, more effective advocate for human rights if the U.S. were on it. For instance, Representative Tom Lantos (D-CA), chairman of the House Committee on Foreign Affairs, strongly criticized the Administration's decision:

[I]n an act of unparalleled defeatism, the Ad­ministration announced that for a second year in a row, the United States will step aside to allow a cabal of military juntas, single-party states and tin-pot dictators to retain their death grip on the world's human rights machinery.[39]

There is little evidence to support Representative Lantos's claim, which incorrectly assumes that sim­ply having the U.S. on the council would have changed its decisions. Because council membership is based on geographic representation, the U.S. 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. Thus, any gain from a U.S. vote on the council would be marginal.

Nor would winning a seat on the council 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.

What the U.S. Should Do
Any hope 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 has proven illusory. The council does not incorporate the protections and standards that would lead to a more effective body. It has the potential to become a stronger body than its dis­credited predecessor, but this depends entirely on the actions of its members.

To help to achieve this goal, the U.S. should:

• Refuse to run for a seat on the council until it proves worthy of U.S. membership. Human rights activists' argument that U.S. membership could make the council more effective is doubt­ful. The U.S. has been a close observer and active contributor to council deliberations and pro­ceedings, even though it is not a member. Yet, despite the best efforts of the U.S. and other countries, the council has fallen far short of expectations. U.S. participation would undoubt­edly increase the council's prestige but is unlikely to increase its effectiveness.
  
  The U.S. should not lend its legitimacy to such a flawed body until the council begins to take its responsibilities seriously. A premature decision to run for a seat would only mask the deplorable state of the current council. As State Department spokesman Sean McCormack noted, "We would hope that if we do come to the day when we decide to run for the Human Rights Council, it will have gotten to the point where it is a credible institution and that we could, in fact, lend our diplomatic weight to the council as a participant."[40]
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• Press for positive actions in the council, par­ticularly regarding its special procedures, the universal periodic review, and interactions with NGOs. During the upcoming June session, the council is scheduled to decide a number of key issues, including clarifying rules for NGO participation; deciding whether or not to main­tain some or all of the "Special Procedures" (the special rapporteurs and representatives, indepen­dent experts, and working groups) inherited from the commission; and determining the specific details for the universal periodic review of all U.N. member countries' human rights practices.
  
  Even though the council has proven generally ineffective in advancing fundamental human rights, some U.N. human rights activities are use­ful, particularly the independent experts who investigate human rights issues in specific coun­tries. The council is currently reviewing the spe­cial procedures system to decide how to change the system, if at all. Predictably, the human rights abusers on the council are trying to use a code of conduct to limit the independence of country-specific experts and trying to minimize or elimi­nate their ability to criticize individual countries for human rights problems,[] as well as to elimi­nate country mandates for special rapporteurs to investigate human rights in countries like Belarus, Burma, Cuba, and North Korea. These same states are trying to limit NGO input into council deliberations. The council is also discuss­ing the details of how the universal periodic review of human rights in all U.N. member states will work. Unsurprisingly, the abuser states are trying to weaken the reviews.
  
  The U.S. should oppose these efforts to weaken the council's special procedures, institutions, and other activities that help to advance funda­mental human rights and hold abusive regimes to account.
  
  Weigh the human rights records of aid recipi­ents more heavily when allocating U.S. devel­opment assistance. The U.S. spends billions of dollars in development assistance each year, but this assistance has a dismal record in catalyzing economic growth. Despite the poor record of development assistance and the mounting evi­dence that financial assistance is far less impor­tant to development than sound economic policy and a strong rule of law, support for development assistance remains strong in the U.S. Congress.
  
  The U.S. should focus development assistance on countries with good policies and use it to support U.S. policy priorities.[42] Advancing fundamental human rights is and should be a U.S. priority. The U.S. should try to change the dynamics of the HRC by focusing development assistance on countries with demonstrable records of improv­ing human rights practices and supporting human rights on the council.
  
  Clearly state that unless the HRC demonstrates improvement in confronting and advancing fundamental human rights, the U.S. will cease to interact with the council and will withhold its portion of HRC funding. The U.S. should not wait indefinitely for the council to improve. Instead, it should disengage from the council if the council fails to demonstrate greater willingness to confront human rights abusers or to adopt a mean­ingful universal periodic review process, if the council eliminates the practice of assigning experts to assess the human rights situations in individual countries, or if the General Assembly continues to elect human rights abusers to the council. Such failures would clearly indicate that the human rights abusers are running the council agenda and that further U.S. engagement, as a member or as an observer, could not repair the damage. Rather than continuing to interact with a fatally flawed body, the U.S. should refuse to par­ticipate in council processes and withhold U.S. contributions to the body.[43]

Conclusion
Advancing fundamental human rights is and should be a U.S. priority. However, in its inaugural year, the Human Rights Council has proven itself to be ineffective in addressing and advancing human rights. The Bush Administration correctly decided not to seek a seat on the council.

U.S. participation in international bodies should not be automatic; rather, the U.S. should base its participation on the effectiveness and relevance of the body to U.S. policy priorities. On this basis, the Human Rights Council is a grave disappointment that is unlikely to be greatly improved by U.S. mem­bership. The May 17 election of council member­ship does not inspire confidence that the council will improve its performance in the coming year.

The U.S. should continue its efforts to improve the HRC's membership, special procedures, and institutions, but it should refuse to lend the council the credibility of U.S. membership until 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. The U.S. should use its influence to oppose efforts to weaken the council's special procedures, universal periodic review, and other activities that contribute to the promotion of fundamental human rights. The U.S. should also use its foreign assistance to encourage improved human rights practices among council members and aid recipients more broadly.

However, the U.S. should not wait indefinitely for the council to improve. If the council does not significantly improve its performance in the coming year or if abusive states succeed in gutting the coun­cil of its effective elements, the U.S. should sever ties with the council and withhold financial support for the body.

Brett 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. Maria Verbanac, an assis­tant in the Thatcher Center, helped with the research for this paper.