Abstract
In the context of this article, the author takes stock of the legacy of the UN Commission on Human Rights (CHR) and the changes that its replacement by the Human Rights Council (HRC) in 2006 have led to. A political body such as the CHR/HRC cannot do more than the member states allow it to do, and cannot be blamed for being driven by political motivations. Against this background it is not surprising that the new institutional framework did not solve the political problems associated with the CHR, since the new body was almost identical in size to its predecessor, involved the same actors, and operated under similar political conditions. The establishment of the Universal Periodic Review (UPR) mechanism, however, introduced a new approach to the UN system by ensuring a cooperative review of the human rights situation of all UN member states, thus awarding an increasingly important role to the technical assistance pillar in implementing its recommendations. Notwithstanding the above, the UPR process has not rendered the adoption of country-specific resolutions unnecessary, but their use should be more strategic, ensuring better coordination within the UN system as a whole, and increasing the importance of the regional dimension in the work of the world organisation. It is not politically realistic to expect all HRC member states to have excellent, flawless human rights records, but the nomination of governments committed to and supportive of human rights should be encouraged. It is important to underline that over the past years, WEOG, EEG, and GRULAC countries, together with some pro-human-rights countries from Asia and Africa, have built successful coalitions within the HRC concerning a number of sensitive issues. The process of democratisation around the world, despite the decline in recent years, will further reinforce these positive trends, improving the composition of the HRC as more and more democratic countries hopefully seek to join the body.
‘Most of the people in this room work for government or seek to affect the actions of government. That is politics. For some to accuse others of being political is a bit like fish criticising each other for being wet’.
Speech by Sergio Viera de Mello, former UN High Commissioner for Human Rights1 at the Commission on Human Rights
1 Introduction
The world's first universal intergovernmental human rights body, the Commission on Human Rights (CHR), established in 1946, came under such fierce attack from almost every forum in its final years that it was only a matter of time before the international community decided to end its mandate. That moment came in 2006, when the UN member states finally decided, after lengthy negotiations, to replace the CHR with a new body, the Human Rights Council (HRC). In this paper, I will briefly discuss the reasons that led to the failure of the CHR and paved the way for the establishment of the HRC, and then I will describe in detail the work of the Council so far, which was established fifteen years ago, in the light of the current international political situation and taking into account the new phenomena and trends that characterise multilateral human rights diplomacy today. However, it must be acknowledged that the HRC can still be considered a relatively young body that is undergoing constant change and facing challenges that should be addressed by the main human rights body of the UN.
2 The road to the downfall of the UN Commission on Human Rights
Most critics tend to forget that the CHR has been in existence for sixty years, during which time it has done its best to promote the international human rights agenda, despite the restrictive conditions of the Cold War era. Unsurprisingly, in 1945,2 the then US Secretary of State Edward Stettinius considered the creation of the CHR to be one of the greatest achievements of the San Francisco Conference.3
ECOSOC (the UN Economic and Social Council) set up the CHR in 1946 under its own supervision, initially with eighteen members. As the UN membership grew, so did the size of the CHR, increasing to twenty-one in 1962, thirty-two in 1967, and forty-three in 1980. It reached its final size (fifty-three) in 1992.4 However, the size of the serving secretariat did not follow these developments, and the length of the annual session (six weeks), which was originally fixed, did not change.5
The CHR had a relatively weak mandate in line with the political considerations of UN member states. Some experts have referred to it as a ‘moral talk shop’.6 The first twenty years of the CHR (1947–67) were dominated by the Western countries and their allies. Until 1964, the CHR had no sub-Saharan African members.7 During this period, the CHR focused on standard-setting rather than on reviewing the human rights policies of individual countries. During these years, no CHR chair was provided by the Eastern European Group (EEG) and the participation of African countries was still minimal.8 It was in the second period of its operation (1967–1979) that the monitoring role of the body began to develop, following the adoption of ECOSOC Resolutions 1235 and 1503. In the following period (1979–1991), the CHR members tried to strengthen their control functions despite the unfavourable political circumstances. While the first half of the post-Cold-War period was characterised by almost consensual decisions, the second phase from 2001 to 2006 saw an increasing number of inter-regional clashes, which led, inter alia, to the replacement of the CHR by the HRC.9
Before outlining the main factors that led to the discrediting of the CHR, it should be noted that the Commission has done more than any other UN body to engage civil society representatives in international human rights diplomacy.10 Fortunately, this continued under the HRC. Despite these achievements, in the final years of its existence the CHR came under heavy criticism from a number of groups. The first signal that made the problem clear to the outside world was given in 2004,11 in the UN Secretary-General's High-level Panel on Threats, Challenges and Change, A more secure world: our shared responsibility,12 and with the publication of Kofi Annan's response to this report, In larger freedom: towards development, security and human rights for all (2005).13
However, the process leading to the replacement of the CHR by the HRC had begun a few years earlier. May 2001 marked an important milestone in this respect, as this was the occasion when the US lost its seat on the CHR. In that year, four candidate countries applied for the three seats available to WEOG14 (three European countries and the United States) and the majority of developing countries supported the three European countries for the CHR over the US. In 2003, when the US was re-elected to the body, Washington began an intensive campaign against the practice of electing countries with dubious human rights records to the Commission. That year, the CHR elected the Libyan ambassador as chair of the Commission, despite Washington's protests, voting down the US delegation in a vote on the issue.15
The political vacuum created as a result of the end of the Cold War was filled by regional confrontation, replacing the East-West divide. As the membership of the CHR expanded, so did its agenda, with more and more country-specific initiatives, which naturally contributed to the politicisation of its work. As a result, the Commission has been increasingly accused of applying double standards in its examination of the human rights situation of UN Member States.16 The main UN human rights body has increasingly spent time on procedural disputes and the use of the so-called no action motion (the initiative not to take a decision on an issue), whereby influential member states such as China have blocked the work of the CHR in relation to debating certain country situations. There were some attempts at fundamentally reforming the body, but in the end only moderate changes to the agenda and working methods were agreed by member states.
Despite the fact that NGOs enjoyed unique privileges in the CHR, NGOs became increasingly vocal at criticising the body for not putting important human rights issues on the agenda due to the application of double standards. Many countries were also critical of the fact that the human rights concerns of the P5 (the five permanent members of the Security Council with veto power – the United States of America, the People's Republic of China, the Russian Federation, the United Kingdom, and France), like the situation in Tibet, Chechnya, or Guantánamo, were never put on the agenda of the CHR. Kofi Annan described the whole situation as a ‘credibility deficit’.17
This credibility deficit has also arisen partly because many countries with poor human rights records wanted to be in the Commission in order to defend themselves against international criticism. Given the loose membership criteria, it was a relatively easy task to get twenty-eight votes from the fifty-four-member ECOSOC.18
Kofi Annan has explicitly stated that the over-politicisation and selectivity have undermined the credibility of the CHR and thus had a negative impact on the reputation of the UN as a whole. As a result, he proposed the creation of a new body, the HRC.19
In conclusion, the international community began to prepare for the replacement of the CHR with a new body in order to allow more time for meetings, to improve the composition of the membership of the body, to make it easier to deal with crises that arise between sessions and to raise the status of the body.20 The international community's aim with the CHR was to move beyond the selectivity, politicisation, and double standards that characterised the CHR.21 The political decision to replace the CHR with the HRC was taken at the World Summit in September 2005.22 (For a more detailed analysis of the formation and institutions of the Human Rights Council, see the author's previous articles.23)
3 The establishment of the UN Human Rights Council and its comparison with the Commission on Human Rights
Following difficult negotiations, the UN General Assembly (hereinafter referred to as the UNGA) succeeded in adopting Resolution 60/251 establishing the CHR.24 Unfortunately, the international community was unable to reach consensus on the parameters of the most important UN human rights body. Besides the three abstaining countries (Belarus, Venezuela, and Iran), the US, Israel, the Marshall Islands and Palau voted against the draft resolution, which was finally adopted on 15 March 2006 by one hundred and seventy votes in favour.25
The following are the important differences between the HRC and its predecessor, the CHR:
- -The status of the HRC within the UN has increased compared to the CHR, given that while its predecessor was a functional committee of ECOSOC, the HRC has become a subsidiary body of the UNGA.
- -Forty-seven countries are members of the HRC, while fifty-three were members of the CHR. The decline in membership has been accompanied by a change in the distribution of membership between regional groups in favour of the countries of the South.
- -Members of the HRC are not immediately eligible for re-election after two terms.
- -The members of the HRC are elected by a majority of the UNGA (currently one hundred and ninety-three members), not by a majority of ECOSOC (fifty-four members).
- -In the case of serious and systematic violations, the membership of an HRC member may be suspended by the UNGA by a two-thirds majority of the countries present and voting.
- -No formal membership criteria have been set for the HRC, but the elections should take into account the candidates' contributions to the promotion and protection of human rights and their voluntary commitments in this regard.
- -The number and length of sessions has increased. The CHR met once for six weeks. In contrast, the HRC holds three sessions a year, including one main session, for a minimum of ten weeks.
- -In contrast to the CHR, for which fifty percent of the members were needed to convene an extraordinary session, in the case of the HRC, one-third of the membership is sufficient.
- -The Universal Periodic Review Mechanism (UPR) is the most visible new tool in the hands of the HRC. According to this, the human rights situation of all UN member states is reviewed every four-and-a-half years (originally every four years). All elected HRC members must undergo this procedure during their mandate.
- -The former Sub-Commission on the Promotion and Protection of Human Rights has been replaced by the Advisory Committee.
- -A new complaints mechanism has been created, replacing the former 1503 procedure.
4 A critical review of the Human Rights Council's activities and some of its institutions
4.1 Membership, regional groups, voluntary commitments, extraordinary sessions, agenda, status of the board
The High-Level Panel in its 2004 report proposed replacing the CHR with the Human Rights Council, considering that the new body should have universal membership and become the main body under the Charter, instead of the former ECOSOC's functional committee status. The purpose of the Panel was to avoid criticism of the composition of the CHR, which was often voiced in the final years of the body, and to pre-empt possible disputes over membership criteria.26 Although Kofi Annan agreed with the Panel's assessment, he argued for a smaller body, either as the main organ of the UN or as a subsidiary body of the UNGA.27 His position was that the HRC should be a ‘society of the committed’, with members who are visibly committed to achieving higher human rights standards. The size of the body he proposed would have been closer to that of the Security Council at fifteen, rather than the CHR at fifty-three.28 This proposal was strongly supported by Washington, which also took a positive view of the Secretary General's idea that the members of the HRC should be elected by the UNGA by a two-thirds majority (currently one hundred and twenty-eight votes in favour).29 The United States, along with the EU Member States, also expressed support for the idea that countries that are subject to measures by the Security Council under Chapter VII of the Charter30 for human rights violations or terrorist activities should not be members.31 The size of the membership of the body generated lively debate among member states, as many countries agreed that a smaller body would be more effective, but felt that it would not be sufficiently representative.32 As underlined by Conall Mallory, strict membership criteria would have made the HRC an under-represented body, both geographically and in terms of the religious, political, and cultural backgrounds of its members.33
The question of universal membership was also examined by the member states in order to avoid over-politicisation of the body, but in the end the majority of member states did not support this.34 This solution would have been seen by many diplomats as a duplication of the Third Committee of the UNGA, which also deals with human rights issues.
Under the final compromise solution, the new body is slightly smaller, with forty-seven members instead of fifty-three, and requires a simple majority of the UNGA (currently ninety-seven out of one hundred and ninety-three votes) to elect candidates. In order to ensure the principle of proportional geographical distribution, the majority of seats (twenty-six out of forty-seven) were allocated to the African and Asia-Pacific Groups. The African Group received thirteen seats (27.6%) instead of the previous fifteen, while the seats of the Asia and the Pacific Group increased in number from twelve to thirteen (27.6%). The WEOG's influence was reduced from ten seats to seven (14.8%). The Eastern European Group (hereafter EEG) gained an extra seat (six seats instead of five, 12.7%), while the Latin American and Caribbean Group (GRULAC) lost three seats (eight instead of eleven, 17%). The HRC became a subsidiary body of the UNGA, which did not require an amendment to the UN Charter.35 There is no doubt that the countries committed to human rights did their utmost during the negotiations to make the Human Rights Council the main body of the world organisation, like the General Assembly, the Security Council, the Trusteeship Council,36 the International Court of Justice, the Secretariat, or the Economic and Social Council. However, member states were not ready to enter into a series of drafting negotiations, possibly over several years, concerning the revision of the UN Charter, which would require two-thirds support, as there was a consensus among governments that such a process would require a comprehensive revision. (The five amendments to the Charter so far have mostly only provided for an increase in the number of certain bodies – SC, ECOSOC.) The status of a principal organ would of course have been a major step forward in human rights diplomacy, as it would have remedied the fact that human rights issues were not sufficiently emphasised in the Charter when the world body was founded. However, the importance of this area has increased over the past decades and human rights issues are now a priority in the foreign policy of all countries. In fact, even the predecessor Commission on Human Rights played a more important political role in the life of the organisation and in international relations than either the Trusteeship Council or the Economic and Social Council.
According to the founding resolution, candidate countries are expected to meet the highest standards as regards the protection and promotion of human rights. They must cooperate fully with the HRC and go through the UPR process as part of their membership. The Member States that elect them should take into account their contribution to the protection and promotion of human rights and the voluntary commitments they make in their candidature.37 Increasingly in recent years, many countries have made only general statements of good intentions, but there are also some governments that no longer bother to update their previous commitments at all, or, as was the case for the first time with Uganda in 2010, have not even submitted voluntary commitments with their candidature.38 There were also several hopeful cases early on in the HRC's activities when expectations about the human rights performance of candidate countries had a deterrent effect and, for example, both Sudan and Zimbabwe were deterred from standing for election, and Iran and Belarus eventually withdrew their candidacies after perceiving that they would not be elected because of their poor human rights performance.39
However, human rights standards are ineffective in cases when there is no competition between Member States to enter the HRC. This was the case with the CHR, and unfortunately, apart from the first year of the HRC and on a few other occasions, the Council could not avoid this situation either. The phenomenon of the so-called 'clean slate' meant that a regional group nominated exactly as many candidates as it was entitled to, leaving the UNGA with no choice but to elect the candidates. In 2006, all regional groups nominated more candidates than the number of seats they had, resulting in sixty-five nominations for forty-seven seats.40 Unfortunately, this competition has subsequently almost disappeared. In 2018, for example, there were exactly eighteen nominations for eighteen seats.41 This situation improved slightly in 2019, when seventeen countries were nominated for fourteen places, but there was still no competition in the African Group and WEOG.42 In 2020 there were eighteen nominations to sixteen places, there was competition within the Asian Group and the GRULAC. In 2021 there was a complete clean slate situation. In 2022 there were seventeen candidate countries to fourteen places. There were two more candidates within the Asian Group and one more candidate in the GRULAC. The so-called ‘clean slate’ voting, combined with secrecy, has certainly had a negative impact on the composition of the HRC membership, minimising the importance of voluntary human rights commitments. Many decisions are based on trade and regional or political alliances and relations, not on a country's human rights record.43 The only way to change the clean-slate situation is to convince more countries that prioritise human rights to run for HRC membership. In some regions, smaller countries are reluctant to take the initiative because it would be seen as an unfriendly diplomatic move by their larger and more influential neighbours. However, I believe that the global democratisation process, which is inexorably moving forward, despite some setbacks, will change this in the medium term, as membership of the UNHRC is the best platform for emerging democracies to demonstrate their democratic commitment.
The decision that an HRC member cannot be nominated for re-election after two consecutive terms of office was certainly a positive one. Also, that the membership of those who commit significant and systematic human rights violations during their mandate can be suspended by the UNGA by a two-thirds majority.44 Despite the high level of support required for suspension, the HRC decided in March 2011 to suspend Libya's membership. It was symbolic that this proposal was submitted to the UNGA by Lebanon as a member of the OIC (Organisation of the Islamic Conference), with the support of Mauritius acting on behalf of the African Group.45
According to UNGA Resolution 60/251, the HRC shall meet at least three times a year for ten weeks, as opposed to the six weeks available to the CHR. This change will allow a more effective and comprehensive approach to global human rights challenges.46 In addition, the new rules on extraordinary sessions will also help the HRC to better deal with exceptional human rights situations, provided that these provisions are used accordingly. These changes have certainly had a positive impact on the WEOG's position in support of the HRC, offsetting the fact that their share in the Council has decreased compared to that in the CHR.47
The impact of the easing of the conditions for convening special sessions was very significant, as thirty-five special sessions were held during the period 2006–2022. It was clear from the beginning that the OIC was using this tool to put pressure on Israel, given that nine sessions dealt with the human rights situation in the occupied Palestinian territories. This was followed in terms of frequency by the Syrian crisis, which was the subject of five sessions. The human rights situation in Myanmar/Burma was the subject of three special sessions. The other special sessions covered Afghanistan, Burundi, Boko Haram, Ethiopia, Iran, Islamic State, Central African Republic, Libya, Côte d'Ivoire, Haiti, Ukrainian human rights situation stemming from the Russian aggression, Sri Lanka, South Sudan, Sudan, global economic and financial crises, Democratic Republic of the Congo, the world food situation, and Darfur.48
The agenda of the HRC49 included ten agenda items, compared to twenty-one for the CHR. However, one agenda item remained unchanged. CHR Agenda Item 8 on Human Rights Violations in the Occupied Arab Territories, including Palestine, became HRC Agenda Item 7 on the Human Rights Situation in Palestine and other occupied Arab territories. Unfortunately, during the negotiations the majority of the CHR decided to keep this specific and discriminatory agenda item on the human rights situation of one country, while all other country situations were dealt with under Agenda Item 4.
4.2 Special Procedures
Special Procedures of the HRC are independent human rights experts who prepare reports and provide advice on thematic or country-specific human rights issues on the basis of their mandate. UN Secretary General Kofi Annan has described the Special Procedures as the crown jewels of the UN human rights system,50 which is an apt way of describing the important role they play in the international protection and promotion of human rights. At the end of the work of the CHR (June 2006), there were twenty-eight thematic and thirteen country-specific mandates. During the negotiations about the parameters for the work of the UPR, it became clear that some countries were keen to use the establishment of the UPR as an opportunity to get rid of country-specific resolutions and mandates. China called country decisions ‘a chronic disease of the CHR’.51 In view of this, it was not surprising that Beijing wanted to introduce a two-thirds majority for the adoption of country resolutions when setting up the UPR. In the end, a compromise solution was reached, whereby the proponents of country resolutions would have to secure the broadest possible support for their initiative – preferably at least fifteen members – before a vote on the proposed resolution could be taken.52 The EU and other countries that supported country-specific resolutions were fortunate that the Chinese initiative would have made life difficult for Arab countries concerning their resolutions about the occupied Arab territories, and this helped to secure the adoption of the compromise solution. In the end, two country-specific mandates, Cuba and Belarus, fell victim to member-state disputes over country situations. During this transitional period, these were abolished, continuing the trend of decreasing country-situations mandates (from twenty-six in 1998 to thirteen in 2006).53
HRC Resolution No 5/1 on institutional development,54 adopted on 18 June 2007, established a rigid but more transparent system for the selection of mandate holders. A five-member Consultative Group, in which each regional group is represented, has been given the leading role. This group reviews the applications and interviews the best candidates and makes its recommendations to the President of the HRC,55 who normally accepts the recommendations of the Consultative Group. He/she may, of course, decide otherwise, but in this case, they must give a detailed and well-founded explanation of their reasons for the different position. Finally, the HRC approves the candidates in plenary session,56 which was not the case for the CHR, where the President, after consulting the Bureau,57 took the decision unilaterally, but without the need for plenary approval.58 It is important to note that, in addition to countries, regional groups, international organisations, and NGOs can also propose candidates, which are then reviewed by the Consultative Group.59 Country-specific mandates are renewed annually, while thematic mandates every three years. There is one exception to this rule: The mandate on the human rights situation in the occupied Arab territories, which lasts ‘until the end of the Israeli occupation of these territories’ and therefore does not need to be renewed annually unlike the other country-specific mandates.60
In response to sharp criticisms of the work of mandate-holders from some countries, the HRC adopted an unfortunate decision in June 2007 on the Code of Conduct for Special Procedures mandate-holders (HRC Resolution 5/2),61 which had the unacknowledged aim of reducing the operational freedom of Special Rapporteurs. The Code of Conduct requires Special Rapporteurs to give priority to information from governments. Unfortunately, the Code can be used as a tool to silence civilian voices and amplify governmental narratives, which compromises the impartiality of the Special Rapporteurs' work by blunting its critical edge.
As of December 2022, there were forty-five thematic62 and fourteen country-specific63 mandates. Seventeen new thematic mandates have been created in fourteen years, while the number of country-specific mandates has increased by one since the launch of the HRC in 2006.64 As Marc Limon noted, if this trend continues, the number of mandates will reach 100 by 2030.65 This trend is not surprising, given that the creation of a mandate is always more difficult than its periodic renewal66 and that there have been very few examples of mandates being terminated.
Rosa Freedman and Jacob Mchangama have demonstrated this phenomenon with an interesting study on the proliferation of special procedures. Their study showed that the so-called ‘free states’, in Freedom House terminology, are increasingly supportive of the establishment of civil and political rights mandates, while this support is not nearly as clear for economic and social rights mandates. The former countries are rather sceptical about the so-called ‘third-generation rights’, which are mostly supported by the so-called ‘non-free states’, which in turn rarely support mandates on civil and political rights.67 One important finding of their research is that, in general, semi-free and non-free states with poorer human rights records support the proliferation of mandates, broadening the narrow focus of civil and political rights mandates, with an emphasis on more expansive mandates dealing with economic, social, and third generation rights.68 Their research shows that special procedures are no longer only aimed at promoting and protecting human rights, but have become an important tool in the ideological and political struggle between member states, which pursue their own agendas to achieve their goals.69 It is difficult to disagree with Freedman and Mchangama's final assessment that an increase in the number of mandates will in any case have a negative impact on the whole special procedure system in the absence of adequate financial backing. In any case, it is a telling statistic that, according to the OHCHR's 2012 financial report, only 24% of the targeted funding70 was allocated to civil and political rights mandates, while the economic, social, and cultural rights areas received 44%, and initiatives related to vulnerable groups (e.g., minorities, indigenous peoples, persons with disabilities, women, children) received 32% of the funds. In my view, there are currently a number of thematic mandates that do not support practical, tangible results for the international human rights system, but which hamper the work of important and effective mechanisms by tying up significant financial resources. Such mandates include mechanisms dealing with foreign debt, toxic waste, the international order, international solidarity, and unilateral coercive measures, which serve political rather than human rights objectives.
Since 1994, the various CHR/HRC mandate holders have met annually in Geneva. These meetings are an excellent opportunity for experts to exchange good practices and harmonise their different working methods. Their annual report to the HRC contains the most important data about the special procedures system. According to the 2018 report, the system then included 80 seats, 45% of which were held by women and 55% by men.71 The report also included important data about cooperation with the special procedures. According to this report, the vast majority of member states, 169 countries, have already accepted at least one mandate holder. However, twenty-four countries have not yet received a visit from a single mandate holder, seven of which have never received an invitation to such a visit, while fourteen have not yet received one, and three countries have agreed to a visit but have not yet received one.72 In this context, we should mention the institution of the so-called standing invitation. This is an open invitation from the government to all thematic mandates. By issuing such a standing invitation, the government declares its readiness to respond to any request for an invitation to any special procedure. As of December 2022, one hundred and twenty-eight member states and one observer had made such a declaration.73
4.3 Universal Periodic Review (UPR)
The UPR is the only universal procedure that includes a review of the human rights situation of all UN member states. (Adrienne Komanovics has also dealt with the mechanism in Hungary in several articles.74) The UPR process is administered by member states within the framework of the HRC, providing each country with the opportunity to report on the steps they have taken to improve the human rights situation in their country and to fulfil their human rights obligations. The UPR was established to ensure equal treatment for all countries in the assessment of their human rights situation. The main objective of the process is of course to improve the human rights situation in all countries and to address human rights violations wherever they occur.75
[t]he UPR is an additional tool for human rights monitoring that complements and does not duplicate the work of treaty bodies77 and special procedures. Furthermore, the review should not alter the mandate of the HRC to respond to serious human rights violations in individual countries.78
An important source of added value of the UPR is the creation of a cooperative atmosphere in which countries can promote joint human rights action programmes aimed at improving the human rights situation on the ground through the sharing of good practices.79 An important feature of the UPR is that it can be easily linked to technical assistance and capacity-building programmes, facilitating more effective implementation of UPR recommendations. The establishment of the Voluntary Fund for Financial and Technical Assistance serves this purpose.80
Some experts and academics have expressed concern, however, that the UPR will become a ritual in which mere participation will no longer be associated with the will to achieve meaningful changes in the human rights situation on the ground.81 The cooperative and non-confrontational nature of the intergovernmental process – which does not include punitive sanctions – has been the price of support from some developing countries, despite the fact that HRC Resolution 5/1 makes it clear that the UPR ‘should not diminish the Council's capacity to respond to urgent human rights situations’.82 In this regard, it is important that ritualism is transformed into compliance or commitment. ‘States must not be allowed to mask their low [level of] commitment to human rights by mere participation in the process’.83
The UPR process has the potential to develop a more inclusive international human rights agenda than has been the case so far, and will provide a comprehensive list of the respective human rights, with reference to the Universal Declaration of Human Rights. This is particularly important in regions where the level of ratification of international human rights conventions is low. It allows peripheral regions of the world to participate in a common human rights dialogue.84 The UPR's emphasis on bilateral, state-to-state relations is a new departure from the work of other sectors of the HRC, which is characterised by regionalism and a North-South divide.85 Research by Edward McMahon and Marta Ascherio shows that the African and Asia-Pacific Groups have made 40% of their recommendations to countries in their own region, while this proportion is much smaller for the other three regional groups (EEG, GRULAC, and WEOG).86 In line with the above-described phenomenon, the countries of the two regional groups mentioned above were much more open to accepting recommendations from their own region.87 In conclusion, there are obvious regional specificities in the process, whereby the Asian and African countries have a much more lenient approach to human rights issues, while the WEOG countries formulate the most critical recommendations requiring concrete action. GRULAC and EEG can play a kind of mediating role between African/Asian countries and the WEOG because of their historical background. An important point made by McMahon and Ascherio is that the long-term success of the HRC depends on whether states recognise that criticism can be an important element of cooperation.88
4.4 Complaints procedure89
Given the lack of interest shown by Member States in reforming the previous so-called 1503 procedure of the CHR, it continued with minor changes90 – easing the eligibility criteria and increasing the frequency of meetings of the case committees. The complaints procedure was intended to deal with serious human rights violations occurring under any circumstances, anywhere in the world, which show a consistent pattern and can be proven. The main difference is the inclusion of the phrase ‘under any circumstances’, which reduces the possibility of anyone challenging the procedure on grounds of either substance or geographical scope. On this basis, emergency or internal conflict does not prevent the HRC from examining the situation. The admissibility criteria have also changed, not excluding, for example, cases where the country is also subject to the public procedure of the HRC or where the complaint falls under the mandate of a special procedure. Now only litis pendentia excludes the admissibility of a new complaint.
4.5 Participation of NGOs and national human rights institutions in the work of the Human Rights Council
As regards NGO participation, the CHR had the most liberal rules in the UN system. NGOs accredited by ECOSOC were allowed to participate in all public meetings and to speak in relation to the different agenda items. They were also allowed to circulate written material among member states.91 These rights were only available to NGOs whose consultative status was established by the NGO Committee, a body of representatives of nineteen Member States that meets in New York. The conditions for consultative status were laid down in ECOSOC Resolution 1996/31.92 Currently, more than three thousand NGOs have consultative status with ECOSOC.93 According to the founding resolution of the HRC, the participation of NGOs and National Human Rights Institutions (NHRIs)94 follows the CHR model and these rules apply to the HRC.95
Laura K. Landolt and Byungwon Woo's research on NGO participation in the work of the CHR and HRC found that the formation of the Council has had a visible positive impact on the participation of local and regional NGOs. Their work confirmed that more NGO voices are being raised about the human rights situation in more democratic and CHR/HRC member countries.96 It is evident from the statistics that the procedural innovations introduced by the HRC have increased NGO participation, particularly in case of the NGOs of the Global South.97
Olivier de Frouville pointed out, however, that since the HRC holds three sessions a year, as well as three UPR sessions, not to mention the many special sessions, it has become particularly difficult for NGOs to keep track of all the events. In addition to the financial difficulties, the phenomenon of so-called government-organised and funded NGOs (GONGOs) is becoming increasingly evident, as are the various measures that are being taken to restrict the work of NGOs in the HRC.98 The UNHRC Resolution 24/24 ‘Cooperation with the United Nations, its representatives and mechanisms in the field of human rights’, tabled by Hungary, initiated the appointment of a UN focal point (coordinator), whose task is to do everything possible to ensure that those who cooperate with the UN on human rights issues are not retaliated against by governments or other actors. Furthermore, there should be a prompt and coherent response to such cases throughout the UN system.99 As a result of the resolution, the UN Secretary-General appointed in October 2016 an Under-Secretary-General for Human Rights, Andrew Gilmour, to address the above-mentioned concerns.100 The mechanism initiated by the resolution could be crucial to preserving the credibility of the UN, as intimidation or silencing those who cooperate with the world body would undermine the moral foundations of the entire organisation.
5 The results of the first review of the work of the HRC and future challenges in the light of the forthcoming HRC review by the UN general assembly
Five years after its establishment, Resolution 60/251 provided for a review of the work of the HRC, which had two elements. The first was to decide on the institutional status of the HRC and the second was to review the functions of the new human rights body. Accordingly, in 2009 the HRC set up an Open-Ended Intergovernmental Working Group to review the HRC's own work.101 After lengthy negotiations, in 2011 the HRC finally adopted its Resolution 16/21 on the Review of the Work and Functioning of the Human Rights Council.102
Based on the decisions taken at the time of the review, it is clear that the HRC has not been able to bring about radical changes in its institutions or working methods. The majority of the changes were of a more technical nature, but they clearly made the work of the HRC easier and more practical.
Following the decisions of the HRC, on 17 June 2011 the UNGA adopted Resolution 65/281 on the review of the HRC.103 In this resolution, the UNGA, while taking note of HRC Resolution 16/21 of 25 March 2011 on the review of the work of the Human Rights Council, decided not to change the status of the HRC, which will remain a subsidiary body of the UNGA, but to reopen the issue in no less than ten years and no later than fifteen years, i.e. the review should take place in the period 2021–26. The HRC decided that the annual report of the HRC will be discussed by the UNGA Plenary and by the III. Committee under the agenda item ‘Report of the Human Rights Council’. It was decided that the President of the HRC would present the report at the plenary session of the UNGA and III. Committee and that III. Committee would hold an interactive debate with the President of the HRC on the report at that time.
In May 2019, during the Glion Human Rights Dialogue,104 participants addressed issues related to the future of the HRC with a view to reviewing the work of the HRC due between 2021 and 2026. Participants identified a number of issues that should be put on the agenda of the HRC in search of appropriate human rights responses. These are: the impact of climate change, environmental erosion and biodiversity loss, development and the use of digital technology, artificial intelligence, transnational crime, corruption, mass migration, the growing power of multinational corporations and the phenomenon of global inequalities. These new challenges require a reframing of traditional human rights thinking, given that a significant number of them involve non-traditional human rights actors. There was a consensus that the effectiveness of the HRC depends on the translation of decisions and recommendations at the international level into changes at the national level. Participants in the Glion Human Rights Dialogue agreed that the review of the HRC by the UNGA is unlikely to bring about a change in the institutional status of the Council. Several pointed out that, although under Resolution 65/281 the HRC does not have to review its own work, although it is not prohibited from doing so, and this could become a kind of internal self-assessment. Participants agreed that most of the proposed changes would not require a change in the status or institutional framework of the HRC. They could generally be achieved by strengthening the existing mechanisms and procedures of the HRC.
6 Expert discourse on the work of the Human Rights Council
As mentioned earlier, inefficiency and selectivity were the two main weaknesses that resulted from the over-politicisation of the CHR.105 However, it is difficult to blame a political body for not having done everything possible to counter its politicisation. All this suggests that the work of the HRC as a successor body should be seen realistically, not in isolation from realpolitik.
In 2015, an important study by the Universal Rights Group showed that more than 55% of adopted HRC decisions dealt with general thematic issues, while country-specific decisions –covering 12 countries – accounted for only 7% of the total.106 The research also indicated that the percentage of decisions adopted by consensus decreased from 80% in 2007 to 69% in 2014. The authors pointed out that 56% of the decisions adopted by the Third Committee had a counterpart in the HRC and 40% of them had a significant overlap in content.107 Each year, III. Committee – and not the Plenary Session of the UNGA – adopts a short resolution on the HRC report, which is presented by the African Group. In some cases, however, a decision of the III Committee expresses reservations on certain HRC initiatives, as was the case in 2011 with HRC Resolution 17/19 on human rights, sexual orientation and gender identity, or in 2013 when the III Committee decided to postpone a decision on Resolution 24/24 on the issue of cooperation with the UN, its representatives and mechanisms in the field of human rights.108 As can be seen from the above examples, the new institutional status of the HRC compared to the one of the CHR may also have certain drawbacks, as the III. Committee may reopen the Report on the HRC. This was not the case in the relationship between ECOSOC and the CHR.
The assessment of the work of the CHR/HRC is a complex issue, since, for example, research by Krishna Chaitanya Vadlamannati, Nicole Janz, and Oyvind Isachsen Berntsen on the impact of CHR/HRC reports on FDI (foreign direct investment) showed that countries that were condemned by the CHR or the HRC experienced a drop in FDI of around forty-nine per cent within a few years.109 The data shows that criticism by the world's most important body has a very serious negative impact on FDI – much more significant than the human rights violation itself, which of course also has negative consequences.110 Consequently, critical HRC resolutions cause tangible economic damage to repressive regimes by deterring foreign investors. Vadlamannati and colleagues further found that media reports of human rights violations also play an important role in amplifying the effects of HRC resolutions on FDI.111 All this suggests that international human rights bodies, such as the HRC, can play an important role in helping offending regimes improve their human rights practices.
Interestingly, Peter S. Henne's research has found a link between HRC membership and levels of religious oppression, showing that HRC membership has often been associated with an increase in religious oppression. Nevertheless, the researcher advocated participation in the work of these human rights bodies rather than exclusion from them. This is an important conclusion in light of his research that many countries use HRC membership not only to deflect criticism of their human rights record, but also to cover up their increasingly repressive policies towards religious groups. In this respect, it is not a cultural or religious issue, but political circumstances, including the level of international attention, that matter.112
Sibylle Scheipers argued that the institutional framework of the HRC emerged in the intellectual struggle between the North, which envisaged an exclusive, confrontational body, and the Global South, which preferred to embrace inclusiveness and cooperation.113
Rosa Freedman was of the opinion that the new institution of the HRC, namely the UPR and the special sessions, which are not new but have risen in importance by making it easier to convene them, are being used by regional groups and other blocs to achieve their political goals. In doing so, however, they undermine the ability of the HRC to fulfil its mission; namely, the promotion and protection of human rights. Friedman singled out the OIC and the African Group as two of the dominant groups that are using the new mechanisms to divert attention from their human rights situation.114
Marisa Viegas e Silva, after the first six years of the HRC, took the view that the political environment around the Council was appropriate to the realities of international relations.115 Her assessment was more mixed than that of the experts mentioned earlier, as she highlighted the semi-permanent nature of the HRC (i.e. longer sessions compared to the CHR), the changes in the election of members, and the possibility of suspending the membership of the offending country and the UPR among the positive changes. On the other hand, the fact that the HRC has repeated the mistakes of the CHR, such as politicisation, double standards, and the strengthening of the intergovernmental character of the body leading to a diminished role for civil society, were among the negative consequences of the establishment of the HRC.116 Theodor Rathgeber was very critical of the HRC. ‘The HRC has neither credibility nor effectiveness, and a significant number of member states still show a moderate interest in discussing controversial issues’.117 He argued that the misconceived solidarity of the Global South prevents meaningful human rights monitoring by the HRC. He stressed that the establishment of the HRC as a political body is an atypical phenomenon, as its mandate includes ‘fact-finding, assessment and negotiation’. He argued that special procedures, NGOs, and OHCHR should play a much more important role in order to improve the performance of the HRC.118
Finally, Eric Cox was very clear when he stated that ‘[w]e cannot expect the HRC to function any differently from the CHR, because both are essentially political bodies that reflect the will of the membership’.119
7 Conclusion
A political body such as the CHR could not do more than the member states allowed it to do and could not be blamed for taking political approaches. Nevertheless, the international community decided to replace the CHR with another body, as many member states believed that the new institutional framework would be able to address the political shortcomings of the previous body. It was not surprising, then, that a new body of almost identical size, with the same actors and under similar political circumstances, did not bring about a breakthrough in the international fight against human rights violations. However, the creation of the UPR represents a new approach to the UN system as a whole, ensuring that the human rights situation of all member states is reviewed through a cooperative process, with an increasing role for the technical assistance pillar in the implementation of UPR recommendations. Besides the UPR, the Human Rights Council managed to address sensitive, controversial issues during its first 15 years and was able to react promptly to human rights crises around the world (Arab Spring, Russian aggression against Ukraine). In this period many countries extended a standing invitation to all thematic Special Rapporteurs of the Council. The HRC played an instrumental role in human rights mainstreaming on issues traditionally not seen as part of the human rights agenda, like climate change. The Council produced a few ground-breaking reports, like the one on lethal autonomous weapons. It contributed to the abolishment of death penalty in many countries (22 states abolished it since the creation of the HRC). The Council addressed the challenging issue of violations committed by non-state actors. Lastly, the question of reprisal against those cooperating with the UN was put on the agenda of the HRC and the Council made significant steps to address this alarming phenomenon.
In the literature there is an undeserved lack of mention of the so-called side events of the HRC sessions, which are often the only forums at which sensitive human rights issues related to the P5 (Guantánamo, Tibet, Chechnya) can be discussed. Civil society has been behind most of these events, bringing human rights defenders and victims to Geneva, drawing attention to human rights violations that were not even discussed by member states in the HRC plenary sessions.
The ever-expanding agenda of the HRC cannot be sustained. There is a great need for a major profiling exercise, whereby certain issues – such as toxic waste and foreign debt – could be transferred to other, more competent UN bodies. Some of the thematic mandates mentioned earlier would also need to be eliminated to increase the effectiveness of the HRC. This could be achieved by so-called sunset clauses, which would indicate that the issues covered by a given resolution are no longer needed on the agenda of the HRC and should be dealt with by other UN bodies.
The launching of the UPR process has in no way made the adoption of country-specific resolutions unnecessary; however, naming and shaming should be done in a more strategic and more coordinated way within the UN system, increasing the importance of the regional dimension in the work of the world body. The current practice whereby some of the resolutions which could be tabled under Agenda Item 4 on country situations are tabled under Agenda Item 10 on technical cooperation because of political pressure can only be accepted if there are real and tangible improvements in the human rights situation in the country concerned.
It would not be politically realistic to dream of the HRC becoming a club of countries with perfect human rights practices, but governments that support human rights should encourage the nomination of countries that see the protection and promotion of human rights as a positive political goal.
Another interesting feature of the HRC is that, despite the dominant influence of the African and Asian Groups, and the rather low-key position of the West in the Council, there are still a number of important thematic and country-specific resolutions that are promoted or initiated by the West in the HRC. In addition, the standard-setting work of the CHR has continued in the HRC. These positive developments are largely the result of the increasingly important role played in the Council's work by coalitions of different regions, which are moving beyond the traditional North-South divide. On a number of important and sensitive issues, WEOG, the majority of the EEG and GRULAC, as well as African and Asian countries with a positive view of human rights, have been able to form coalitions. The process of democratisation around the world, which120 will hopefully continue despite periodic setbacks could reinforce these positive trends, improving the composition of the HRC as more democratic countries seek to join it.
Finally, let me underline that the international community must do everything possible to strengthen the preventive role of the HRC, making strategic use of the special procedures and databases generated by the UPR process. Improving the composition of the HRC, complemented by an increase in the role for cross-regional cooperation and ensuring an appropriate proportion of naming and shaming and technical cooperation, could make the HRC even better placed to implement its important mandate in relation to the international protection and promotion of human rights.
Disclosure
István Lakatos, PhD is a career diplomat, ambassador, presently a senior adviser to the Ministry of Human and Minority Rights of Montenegro. The opinions expressed herein are strictly personal and do not necessarily reflect the position of the Hungarian Ministry of Foreign Affairs and Trade.
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WEOG – Western European and Others Group of States.
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Today, the Trusteeship Council exists only on paper. It was suspended in November 1994 following Palau's independence.
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Mallory (2013) 30.
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Joosten (2011) 17.
Joosten (2011) 17–18.
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In the case of the CHR and the HRC, the Bureau is composed of the President, the three Vice-Presidents and the Rapporteur.
Joosten (2011) 26.
Joosten (2011) 24.
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The thematic special procedures of the HRC cover the following issues: people of African descent, albinism, arbitrary detention, business and human rights, cultural rights, development, disability rights, disappearances, education, environment, executions, food, foreign debt, freedom of expression, freedom of assembly and association, hazardous substances, health, housing, human rights defenders, judicial independence, indigenous peoples, internally displaced persons, international order, international solidarity, leprosy, mercenaries, migrants, minority issues, elderly, poverty, private sphere, racism, religion, belief, child trafficking, sexual orientation and gender identity, slavery, terrorism, torture, trafficking, justice, unilateral coercive measures, violence against women, water and sanitation, women, girls, and the last mandate on the human rights impact of climate change.
Country-specific procedures of the HRC: Afghanistan, Belarus, Cambodia, Central African Republic, Central African Republic, Eritrea, Iran, Mali, Myanmar, North Korea, Eritrea, Iran, Russian Federation, Somalia, Sudan, Syria, Somalia, Palestinian Territories occupied since 1967, Syria.
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A/HRC/40/38, 3.
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Spohr (2010) 169–218.
Abraham (2016) 88.
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Henne (2018) 723–24.
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Silva (2013) 110.
Silva (2013) 109.
Rathgeber (2010) 193.
Rathgeber (2010) 193.
Cox (2010) 89.
According to Pew Research, at the end of 2017, of the 167 countries with at least 500,000 inhabitants, 57% were democracies, 28% were mixed, while only 13% were autocracies. This democratic wave began in the mid-1970s and while there has been a decline in recent years, the numbers are still not comparable to 1976, when 62% of countries were autocracies, 25% were democracies, and 13% were mixed regimes, Desilver (2019).
