Human Rights Council: Normative Framework, Politics or PR?

Human rights constitute what can be described as the only universally accepted binding normative framework of our times. The debates on some of today’s most pressing issues, such as poverty reduction, violent conflict and humanitarian crises are increasingly addressed through a human rights-based approach, that is, the understanding of people as subjects of rights, rather than objects of regulation.

Given that human rights are increasingly being understood as serious foreign policy concerns and that the UN considers them a “foundation for collective security and well-being,” the functioning and effectiveness of the UN Human Rights Council (the Council), the principal international body responsible for human rights, merits closer attention.

The Council was established in 2006 to replace the former UN Commission on Human Rights. Its founding was the result of the former Commission’s de-legitimization, having been widely accused of politicization, selectivity in dealing with country situations and lack of objectivity. The new Council was designed to strengthen the profile of human rights as one of the three pillars of the UN system (alongside peace and security and development) and mark the beginning a new era in the UN’s human rights work.

While states regularly pay lip-service to the Council's effectiveness and their commitment to human rights, their behavior often suggests otherwise. It seems that, with some exceptions, most states care about universality only when others are the subject of criticism, and they believe in indivisibility and interdependence of rights only when those rights are deemed compatible with their own political agenda or cultural background. Also, states continue to raise the specter of selectivity and politicization when their country's human rights record is questioned. Regional and alliance solidarity still go beyond any commitment to human rights.

A closer look at the Council’s mandate, as well as its achievements of the past two-and-a-half years can shed light on this serious gap between rhetoric and reality.

The new Council's mandate

The Council is made up of 47 member states that seek election through the General Assembly. Non-member states take part in the Council’s proceedings as observer states. Its mandate is to promote universal respect for the protection of human rights for all, address situations of violations and make recommendations thereon and undertake a universal periodic review (UPR) of each state's level of fulfillment of its human rights obligations.

The Council meets for a minimum of three sessions per year, and can call Special Sessions to address urgent human rights situations, as was done most recently regarding the eastern Democratic Republic of the Congo (DRC). Potentially the strongest tool at the Council’s disposal is the Universal Period Review (UPR). Under this peer-review system, every member state of the UN is reviewed on its human rights record in a four-year cycle. This is meant to ensure universality of coverage and equal treatment among states. Integral to the process are the recommendations made from the plenary, which the state under examination can publicly reject, or accept and pledge to implement.

New name, old problems

Of course, the existence of a new body did not solve the old problems and conflicts. The Council, now in its third year, is still characterized by alliance politics. Regional and political groups such as the African Group, the European Union (EU) and the Organization of the Islamic Conference (OIC) are often used by state members as a protective shield from scrutiny and preservation of common interests. This leaves little room for progress by those states willing to go beyond their respective group’s position. Some of the front-burner issues that different blocks clash on include Lesbian, Gay, Bi- and Transsexual rights, migrants’ rights, the right to development, the relationship between the right to freedom of expression and the problem of the so-called “defamation of religion” (the "cartoons") issue, as well as the Council’s approach to country-specific human rights situations.

One of the practices that contributed to the de-legitimization of the former Commission and that has been maintained in the Council is the disproportionate attention given to the Occupied Palestinian Territories (OPT). While all other country situations are addressed under the agenda item called “Human rights situations that require the Council’s attention,” this issue is the only one that holds its own, permanent agenda item, entitled “human rights situation in Palestine and other occupied Arab territories.” Out of the eight Special Sessions the Council has held, four were concerning Israeli human rights violations in the OPT and Lebanon (the others addressed human rights crises in Darfur, Myanmar, the eastern DRC and the World Food Crisis).

While the Council should of course address the human rights violations occurring in the OPT, the time and energy put into passing repeated resolutions condemning Israeli practices can be interpreted as a politically motivated maneuver designed to distract attention from other human rights issues, especially those committed in the countries that most fervently denounce Israel.

The Council also assumes the mandates of the so-called special procedures that address either specific country situations or thematic issues in all parts of the world. Their mandate holders can conduct country visits to investigate the human rights situation on the ground. For these, they need an invitation by the government, making it possible for states to thwart any reporting, as has been experienced in the case of Sudan, Israel and many others.

On the other hand, issuing a standing invitation to all of the Council’s special procedures mandate holders is now top on the list of steps states take to get into the “good books” of human rights diplomacy. Over 60 states have so far issued standing invitations, and it is a common voluntary pledge made by states when seeking election to the Council.

Adopting decisions by consensus is of critical importance for a body that derives its legitimacy from being the only global institution speaking-out on human rights. Calling a vote weakens the standing of any resolution and undermines the supposed universality of human rights standards. In the quest for a consensual outcome, resolutions are often watered down to contain extremely weak language.

At times, however, the passage of a resolution has managed to break the bonds of regional solidarity. For example, on the human rights situation in Darfur, some notable African states, such as Ghana and Zambia, have broken with the African Group in favor of stronger resolutions. Yet the most vocal members of the African Group and the OIC have consistently opposed language proposed by the EU, including reference to the responsibility of the government of Sudan to protect civilians in Darfur and end impunity for human rights violations.

On the contrary, their focus has been on questioning the facts on the ground and on Sudan’s cooperation with the international community. As a result of continued resistance to any Council response on the crisis, a series of consensual but weak resolutions have been passed on Darfur. In its September 2008 session, the Council decided to renew the mandate of the Special Rapporteur on the human rights situation in Sudan for a mere six months, a move previously never taken.

This aversion to addressing specific country situations and implementing effective human rights protection is not surprising. After all, states are the most egregious human right violators and they fail to uphold their responsibilities towards citizens around the world.

This is where the inherent problem of human rights in the international, interstate arena lies. Picture a convention of tax evaders tasked with condemning and elaborating binding norms against tax fraud and reviewing each other on implementation. The participants themselves would obviously undermine the effectiveness of such enforcement mechanisms.

Ironically, states, of course, created the Council and apparently deem it a sufficiently important body in which to invest considerable time and effort. Assuming that there is more behind this than an – ultimately self-defeating – public relations stunt, that there is in fact an emerging consensus on the protection of universal human rights, states face a conundrum:. If they want to take seriously the human rights obligations they have voluntarily assumed, states will have to accept scrutiny of their own behavior as well as that of their allies and be willing to risk the political and economic repercussions of a principled stance against abuse. For example, when Iran voices its concern about women’s rights in the EU to the plenary, quoting wage disparities and the low number of women in managerial positions, this has to be taken seriously, with the understanding that Iran will be measured by the same standards.

Of course many states buy into the logic of solidarity and cooperation with abusive governments rather than condemning them. They fear exposure of their own abuses and the condemnation of powerful allies. Yet this approach can only lead to an erosion of the Council’s legitimacy and moral authority - ultimately its most important resource. This is also where part of the problem of the peer-review nature of the UPR mechanism lies. The fact that states, rather than independent experts, review each other requires them to treat their peers equitably.

Yet the participation, or lack thereof, during UPR is often political. To illustrate, the Democratic People’s Republic of Korea made statements on only two countries, Japan and the Republic of Korea, both of which it has had a tense relationship with for decades. Remarkably, Sri Lanka recommended to the UK that it abolish the monarchy (“To consider holding a referendum on the desirability or otherwise of a written constitution, preferably republican”), but did not mention this during the review of any other monarchy.

Reasons for hope?

Nevertheless, the UPR can also have a real impact on the human rights situation in a country. Before the review in Geneva, there is to be a process of national consultations, which raise the profile of human rights domestically. The first cycles of UPR also indicate that states are highly concerned about the outcome of the reviews.

Additionally, even with states that do not implement their human rights rhetoric on the ground, the power of public pledges and statements should not be underestimated. All proceedings of the Council are streamed live online. The value this gives to the work of human rights defenders worldwide is invaluable. Escaping accountability for their human rights violations will become increasingly difficult, even for states that treat the UPR as a mere exercise in foreign policy. Their rhetoric will eventually come back to haunt them.

Recurring and unresolved problems of the Council include the failure to hold states that consistently refuse to cooperate responsible, the lack of cross-regional initiatives and the dominance of alliance and block thinking. The Council’s politics have undermined its legitimacy, contributed to a disconnect between its work in Geneva and the tangible human rights violations it seeks to address and furthered the creeping marginalization of human rights within the UN system.

Nevertheless, consider the power of rhetoric. As Slovenian philosopher Slavoj Zizek recently put it, “our global situation is not only a hard reality, it is also defined by ideological contours. In other words, it’s defined by what is sayable and unsayable…. Words are never 'only words.' They matter because they define the outlines of what we can do.”

The language of human rights is omnipresent in Geneva, and thanks to technology and the work of civil society organizations, it is carried into the wider world. It reaches countries whose governments will eventually have to answer for their actions at the Council and whose use of “human rights-inspired language,” whatever agenda they may have, ultimately contributes to the consolidation of a universal normative framework.