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The New Human Rights Council at the United Nations

The US role: More harmful than helpful

On 15 March 2006, the United Nations General Assembly voted overwhelmingly to create a new UN Human Rights Council (HRC) to replace the existing Commission on Human Rights (CHR), in spite of the obstructive role of the US. On 22 March, a formal ECOSOC decision abolished the CHR effective 16 June. On 19 June 2006, the new HRC will start its first session. Liane Schalatek reports from Washington.

 

Some 170 countries, even Cuba, voted in favor, among them all of the European countries. Only four countries, most notably among them the United States and Israel, opposed the resolution. Belarus, Iran and Venezuela abstained. The vote brought to a close a tense stand-off and disagreement, which pitted the United States against most of its closest political allies. It centred on the question on whether countries should seek to attain the optimal outcome when striving for human rights reform within the UN or seek to advance the best possible and feasible compromise instead of striving for the unattainable; it had started a few weeks earlier, on 22 February 2006, when the President of the UN General Assembly, Jan Eliasson (Sweden), had introduced a draft resolution to establish a new Human Rights Council (HRC).

The new Council also embodies the vision of Secretary General Kofi Annan as stated in his In Larger Freedom as well as the decision taken by more than 100 world leaders who came together at the 2005 World Summit in New York in September 2005 to create a Human Rights Council (HRC). The United States originally was one of the major forces behind the push to create such a new body, calling the existing Commission on HR “discredited” (which is a term that accompanies the mention of the existing Commission in every US media report, by the way).

* The Eliasson proposal
Since September 2005, the UN member states had negotiated the mandate, modalities, functions, size, composition, membership, working methods and procedures of the Council. The draft presented by Eliasson in late February represented, in the view of many observers, including those from the German Permanent Mission to the UN in New York, possibly the only feasible compromise between competing visions of and ambitions for the HRC.

Positive features, both new and maintained from the old Commission on HR, which gained the support of 170 member countries in the UN General Assembly vote, included:

* The 47 members of the new body (fewer than the 53 members of the CHR, but more than the 30 the US wanted) have to be elected directly and by a majority of the General Assembly (96 countries).
* They are effectively subject to an annual peer review of their own commitment to human rights, on which their claim to membership at the HRC will be largely based.
* For the first time, member states can be suspended from the Council for committing gross and systematic human rights violations.
* The HRC will be a subsidiary of the GA, and will meet throughout the year in three sessions for not less than 10 weeks, rather than in one six week session as the old CHR currently does. This flexibility should allow for quicker response time and for the Council to deal with emergency HR crises (such as the ongoing one in Darfur) much earlier.
* The resolution creating the new HRC acknowledges, maintains and reinforces the right of NGOs to participate in the proceedings of the Council – a line the German government has fought hard for – although it allows for a review of the current practice.
* It also retains from the current CHR the system and mandate for Special Rapporteurs, which international human rights organisations widely see as a desirable feature also for the new HRC.

* Bolton’s reaction, NGOs, and Nobel laureates
Shortly after the Eliasson draft proposal had been presented, however, the United States represented by US Ambassador to the UN John Bolton had rejected the proposal as not ambitious enough. The US criticism had centred mainly on the proposal to allow for the election of the members of the HRC (which will consist of 47 member states) by direct and individual vote by the majority of the GA rather than the 2/3 majority as the US had demanded. The Bush administration’s criticism was initially widely picked up and amplified in the media, even by usually more centrist voices like The New York Times and The Washington Post in addition to traditionally more conservative publications. In both newspapers, searing op-ed pieces had appeared urging the White House to remain strong and not to give in to compromise solutions but to strive for a maximum. Ambassador Bolton had suggested the reopening of negotiations and the postponement of several months of a vote in the General Assembly on Eliasson’s February proposal for a new HRC.

In contrast, many international human rights organisations, including and prominently Amnesty International and Human Rights Watch, had urged the US government to accept the Eliasson draft noting that a reopening of the negotiations could mean a watering down of the real improvements over the existing CHR that the draft proposal embodied, since there were many countries which had been very active on the diplomatic front opposed to the gains embodied in the compromise text. These included foremost Egypt, Sudan, Cuba and Pakistan. The human rights groups also had pointed out that the existing body, the CHR, had indeed been rendered ineffective, not the least through relentless attacks by the media, and had voiced their fear that in the absence of accepting the Eliasson proposal the UN could be left without a functioning and effective HR body.

In a flurry of commentaries in major US newspapers in the first two weeks of March, supporters of the proposal had tried to argue their case and reason with the Bush administration. Among them were, very prominently, the Novel Peace Price laureates Jimmy Carter, Óscar Arias, Kim Dae Jung, Shirin Ebadi and Desmond Tutu who in a joint op-ed published in several major US newspapers had argued that “Mr. Eliasson has found a way forward that can bring everyone on board. Nearly 60 years after the adoption of the Universal Declaration of Human Rights, he has finally brought us to where we can begin to put principles over politics for the betterment of all.” Observers and participants in the actual negotiations in New York, including from Germany, largely shared this view.


The German government perspective

From a German government perspective, the Eliasson proposal, while falling short of some of what Germany would have hoped for, represented nevertheless the best that could have been achieved in seven months of very contentious negotiations. Germany's criticism of the proposed HRC centred mostly on the geographical composition of its members, which represents a rebalancing of power in favor of developing countries, particularly Asian ones. Effectively, the bloc of European countries, so far with 10 seats at the Commission on HR, will have only 7 seats on a new HRC. It is also quite likely that Germany, for 27 years a member of the existing CHR, will not be a member of the first HRC as it convenes (since Germany currently a member of the outgoing Commission on HRC during its 62nd and final session). Germany, thus would be unable to take part in setting the agenda and actual work practice of the new HRC which will be shaped to a large extent in its first session.

A German observer in New York thus summarised Germany's feeling about the new HRC: "Germany supports the proposal, even though it does so only with a tummy ache…" In his assessment, the US insistence on a 2/3 majority for the election of members for the HRC by the General Assembly is not the great filter for preventing HR abusing states from joining the HRC that the US makes it out to be. Indeed, the US boycotted one reform proposal, supported by the Germans and other Europeans, which would have stipulated that a regional group would have to present more candidates for a region's HRC seats than actual seats to be filled (to prevent a so called "clean slate" approval).



* Scorched-earth approach to all UN reform issues failed
In the view of many observers, the role of the US and its politics and tactics behind its rejection of the Eliasson proposal had been more harmful than helpful, with the US trying to boost mainly negative goals with its action. First and foremost they noted what some US newspaper commentators had labeled Bolton’s “scorched-earth approach to all UN reform issues” – the personal intent of Bolton to make clear that in the UN context nothing can be accomplished without him and the US approval. This attitude angered many negotiators, particularly since during the 30 or so actual negotiation rounds on the HRC shape and form over the course of the past seven months, the US had been reportedly represented and engaged only on a lower working, not on a higher political level.

According to US newspaper reports, Bolton rarely had participated in the months of negotiations aimed at forging a new council. When he did weigh in – for instance, by asserting in December that the five veto-wielding members of the UN Security Council should have permanent seats on the rights panel – he complicated the deliberations, according to diplomats and rights advocates. Some openly decried a “communication breakdown” on the side of the US in its inability to communicate the US intentions and possible objections. Observers pointed out that Eliasson had presented the proposal in the belief that the US would support it, a belief which had been shared by all EU members, including the British which had previously sided with the US. A recent Washington Post article cited senior UN officials and delegates as saying that “Bolton barely highlighted the importance of the two-thirds membership vote at a critical meeting […] with Eliasson, leading the General Assembly president to believe that the United States could accept the compromise.”

Bolton’s suggestion to postpone a vote on the Eliasson proposal for several months was seen as an US effort to use the threat of a withholding of US UN fees since by mid-year the UN budget would have to be negotiated. With the EU having come out as a block in support of the draft HRC proposal beginning of March, observers had speculated on whether GA President Eliasson would actually go ahead and present the proposal for a vote in the General Assembly. Many in New York, however, believed that the notion and mood among many member states was to not allow the US again – as they had done during the 2005 World Summit – to dominate the UN reform agenda according to their own national interests. While there were some diplomatic efforts made in the past weeks to get the United States and Ambassador Bolton outside of a GA vote to agree to the new HRC, they lastly failed. The saving grace for the United States was that it did not insist on amendments that could have very well led to the unraveling of the resolution establishing the HRC.

In what can only be considerate a diplomatic failure for Bolton, after the General Assembly vote on 15 March, the US had to shift its policy and to publicly agree to help fund the HRC, as well as to start internal discussions over a possible US membership in the new body. This episode has also highlighted policy disagreements within the US State Department with respect to UN Reform, particularly between John Bolton, a staunch critic of the UN, and R. Nicholas Burns, the Undersecretary of State for Political Affairs, who had given more optimistic assessments of the state of negotiations on the HRC in Washington just days before the rejection of the Eliasson proposal by UN Ambassador Bolton.

* The real test for the new Council
The focus of 170 supporting countries establishing the HRC – as well as that of the United States – is now on ensuring that elections to the council, slated for 9 May deliver the best possible candidates from each region of the world. In order to guarantee the best possible membership for the new HRC, international human rights organization such as Human Rights Watch ask UN member countries should insist that:
* Regional groups present their nominations to the council at least thirty days prior to election, to allow for public scrutiny of their human rights records;
* Regional groups present more candidates than spots on their slates so that governments have a real choice of countries;
* Candidates commit to cooperate fully with the mechanisms of the Human Rights Council by granting unimpeded access to U.N. human rights investigators; and that
* Candidates set forth a concrete and positive human rights agenda at home and for service on the council.

The real test for the new HRC will be the new Council’s willingness, once elected, to address the worst human rights situations in the world regardless of political considerations, including by convening emergency sessions to ensure a timely and effective response as necessary and to develop an effective universal review procedure that will provide neutral, objective scrutiny of the human rights records of all countries in the world – starting with council members – and that makes robust recommendations. This will ultimately determine if the new HRC, which will start its first formal session on 19 June, can really bring a departure from the past “business as usual” with respect to human rights in the United Nations.

Finally, quite possibly the biggest question hanging over the new HRC is whether the United States now will formally seek a seat. And if so, will it be elected? This is far from certain. Already in 2001, the US had failed to secure a seat in the Commission on Human Rights, having received less votes than Sweden, France or Australia. Five years later, only seven Western government will be elected to the new 47-member HRC – but the human rights record of the United States looks even more assailable and vulnerable today than then. Guantanomo Bay and prisoners’ treatment there (which earned the United States a rebuke from five UN rapporteurs for its interrogation and detention policies), as well as weak support of the US Administration for minimal economic, social and cultural rights in UN conventions (which America conservatives dismiss as goals, not as legal entitlements) and blatant disregard for many UN human rights conventions (the US is not a signatory to the UN Conventions on the Rights of the Child, nor to CEDAW or the treaty establishing the International Criminal Court) cast at least some serious doubt on the human rights performance of the United States. If the election of members to the new HRC is all about an individual country’s merit, it is in this context that for the United States asking for the highest membership standard might actually backfire.

Liane Schalatek is Associate Director of the Heinrich Böll Foundation North America, Washington, DC.


Posted: 29 March 2006.

* Find more on the subject:
>>> World Summit between Disappointment and Hope
>>> The US Onslaught Against the World Summit
>>> Security Council Reform: Not a Quick Fix


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