November 5, 2010 | WebMemo on International Law
The United States underwent a three-hour review of its human rights record before the United Nations Human Rights Council (HRC) on November 5 under that body’s Universal Periodic Review (UPR). As predicted, the farcical nature of the process was immediately apparent as serial human rights violators Cuba, Venezuela, Iran, Russia, China, Sudan, and North Korea queued up to lecture the U.S. on its human rights lapses and instruct it on how to improve its observance of the human rights that those countries routinely deny their own citizens.
The HRC ignored the Alice in Wonderland nature of the U.S. review and acted as if it were indeed conducting a serious human rights review. While this treatment was inevitable, the U.S. grist for the mill was in its UPR report. Ultimately, the primary problem is the decision by the Obama Administration to legitimize the HRC through U.S. membership, which has given the council and its farcical UPR process undue credibility. The Obama Administration was mistaken to believe it could improve the HRC from within and should instead press for fundamental reforms at the mandatory review of the council next year.
The Obama Administration’s Wrongheaded Decision to Join the Human Rights Council
The HRC was created in 2006 to replace the U.N. Commission on Human Rights, a body that had failed to hold governments accountable for violating basic human rights and fundamental freedoms. During negotiations to establish the HRC, many basic reforms and standards to ensure that the new council would not simply be a repeat of the commission did not receive sufficient support in the General Assembly. As a result, the HRC has been no better—and in some ways, worse—than the commission it replaced.
Anticipating this outcome, the Bush Administration decided not to seek a seat at the Geneva-based council and distanced itself from the council’s proceedings except in instances of “deep national interest.” The Obama Administration reversed this policy, arguing that the U.S. would be able to improve the HRC from within. Unfortunately, the performance of the HRC with the U.S. as a member has been virtually indistinguishable from its performance absent U.S. membership.
The Flawed UPR
The council’s UPR was created to hold the human rights practices of every country open for public examination and criticism. Under the UPR, countries are supposed to self-assess their human rights records with input from civil society and submit a report to the HRC. That report—combined with submissions from NGOs and information from independent U.N. human rights experts, human rights treaty bodies, and other U.N. human rights bodies—is used as the basis for the UPR, which culminates in a three-hour dialogue in the Human Rights Council between the state under review and the other U.N. member states.
Unfortunately, past UPR sessions have featured countries like China, Cuba, Iran, and North Korea offering false reports to the council, laughably affirming their commitment to fundamental human rights and freedoms. These patently dishonest reports were accepted at face value and approved by the majority of member states in the council. Indeed, these countries received relatively little criticism during their reviews.
By contrast, the U.S. was roundly criticized during its review earlier today in Geneva. Countries resentful of the U.S. and its practice of criticizing their human rights records gamed the system to paint the U.S. as one of the world’s worst human rights violators, with Cuba circulating an advance “sign-up sheet” to allow U.S. critics to dominate the two hours reserved for country statements on America’s record. The results were predictable:
The audacity of these countries in accusing the U.S. of human rights violations is staggering. While the U.S. is not perfect, it is as respectful and observant of human rights as any state sitting on the HRC and far superior to these countries that perpetrate serious, widespread violations of human rights daily. But to hear comments during the UPR, one would think that the U.S. was the worst human rights abuser on the planet.
The U.S. is not blameless for its treatment at the council. Although the U.S. self-assessment generally defends America’s strong record in preserving human rights, including a robust defense of the U.S. Constitution as the basis for and protection of human rights in the U.S., it also provided ample fodder for those bent on using the UPR to deflect criticism of their own human rights records or assert a false moral equivalency between themselves and the U.S. on human rights.
For instance, the report inappropriately disparages Arizona’s immigration law. Unsettled domestic legal issues such as immigration should be presented, if at all, impartially within international forums like the UPR, especially when such issues are complex and controversial. Obviously, countries were quick to capitalize on this as evidence of America’s discrimination toward Hispanics and immigrants, both legal and illegal.
Another paragraph in the U.S. report demonstrates the type of self-flagellation that the HRC expects of the U.S.:
We are not satisfied with a situation where the unemployment rate for African Americans is 15.8%, for Hispanics 12.4%, and for whites 8.8%, as it was in February 2010. We are not satisfied that a person with disabilities is only one fourth as likely to be employed as a person without disabilities. We are not satisfied when fewer than half of African-American and Hispanic families own homes while three quarters of white families do. We are not satisfied that whites are twice as likely as Native Americans to have a college degree.
This paragraph’s emphasis on group rights and achieving “equality of results” rather than only “equality of opportunity” is consistent with the HRC’s flawed view of the nature of human rights and what member states are obligated to guarantee to their citizens.
Fundamental Reform Needed
Regrettably, the Administration’s decision to elevate and legitimize the deeply flawed HRC through U.S. engagement and membership gives the UPR process similar credibility. It is imperative that the Administration pursue reforms in the 2011 review of the council to make the HRC and the UPR process a focused and powerful weapon in improving observance of fundamental human rights and freedoms. This starts with establishing strong membership criteria for the council.
Failure to achieve reforms in the 2011 review should lead Congress to again withhold a proportional amount of the U.S. contribution to the U.N. that supports the work of the council and serves as a stark reminder of the need to create an alternative arbiter of international human rights outside of the U.N. system.
Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs and Steven Groves is Bernard and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.
Brett D. Schaefer and Steven Groves, “The U.S. Universal Periodic Review: Flawed from the Start,” Heritage Foundation WebMemo No. 2994, August 26, 2010, at http://www.heritage.org/research/reports/2010/08/the-us-universal-periodic-review-flawed-from-the-start.
U.N. Human Rights Council, Working Group on the Universal Periodic Review, “National Report Submitted in Accordance with Paragraph 15 (A) of the Annex to Human Rights Council Resolution 5/1: United States of America,” August 23, 2010, at http://lib.ohchr.org/HRBodies/UPR/Documents/session9/US/A_HRC_WG.6_9_USA_1_United%20States-eng.pdf.
U.N. Watch, “Mutual Praise Society: Country Scorecard and Evaluation of the Universal Periodic Review System of the U.N. Human Rights Council,” February 6, 2009, p. 2, at http://www.unwatch.org/atf/cf/%7B6DEB65DA-BE5B-4CAE-8056-8BF0BEDF4D17%7D/Mutual%20Praise%20Society.pdf (August 26, 2010).
For more detailed reform proposals, see Brett D. Schaefer and Steven Groves, “The U.N. Human Rights Council: No Better for Obama’s Engagement,” Heritage Foundation Backgrounder No. 2339, November 9, 2009, at http://www.heritage.org/research/reports/2009/11/the-un-human-rights-council-no-better-for-obamas-engagement.
U.N. Human Rights Council, Working Group on the Universal Periodic Review, “National Report Submitted in Accordance with Paragraph 15 (A) of the Annex to Human Rights Council Resolution 5/1: China,” November 10, 2008, at http://lib.ohchr.org/HRBodies/UPR/Documents/Session4/CN/A_HRC_WG6_4_CHN_1_E.pdf (November 5, 2010).
U.N. Human Rights Council, Working Group on the Universal Periodic Review, “National Report Submitted in Accordance with Paragraph 15 (A) of the Annex to Human Rights Council Resolution 5/1: Cuba,” November 8, 2008, at http://lib.ohchr.org/HRBodies/UPR/Documents/Session4/CU/A_HRC_WG6_4_CUB_1_E.pdf (November 5, 2010).
U.N. Human Rights Council, Working Group on the Universal Periodic Review, “National Report Submitted in Accordance with Paragraph 15 (A) of the Annex to Human Rights Council Resolution 5/1: Islamic Republic of Iran,” November 8, 2008, at http://lib.ohchr.org/HRBodies/UPR/Documents/Session7/IR/A_HRC_WG6_7_IRN_1_E.pdf (November 5, 2010).
U.N. Human Rights Council, Working Group on the Universal Periodic Review, “National Report Submitted in Accordance with Paragraph 15 (A) of the Annex to Human Rights Council Resolution 5/1: Democratic People’s Republic of Korea,” August 27, 2009, at http://lib.ohchr.org/HRBodies/UPR/Documents/Session6/KP/A_HRC_WG6_6_PRK_1_E.pdf (November 5, 2010).
U.N. Watch, “Cuba Organizing Rogue Speakers’ List of Hardliners in Bid to Ambush U.S. at Friday’s U.N. Review,” November 3, 2010, at http://blog.unwatch.org/index.php/2010/11/03/cuba-organizing-rogue-speakers-list-of-hardliners-in-bid-to-ambush-us-at-fridays-un-review/ (November 5, 2010).
Brett Schaefer, “Arizona Heat: Another Reason to Question U.S. Participation in the Human Rights Council,” The Foundry, August 30, 2010, at http://blog.heritage.org/2010/08/30/arizona-heat-another-reason-to-question-u-s-participation-in-the-human-rights-council/.
“Report of the United States of America, Submitted to the U.N. High Commissioner for Human Rights in Conjunction with the Universal Periodic Review,” p. 8, at http://www.state.gov/documents/organization/146379.pdf (August 26, 2010).
For more detailed reform proposals, see Schaefer and Groves, “The U.N. Human Rights Council: No Better for Obama’s Engagement.”