CommentaryJURIST Special Guest Columnist Noah Bialostozky of White & Case LLP says that while the US may help make the UN Human Rights Council a more meaningful forum for constructive, diplomatic engagement on human rights issues if it is elected to a seat in May, its presence should not be expected to achieve instant transformation of that body…
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From its naissance in 2006, the Council was consistently criticized by the Bush administration. In many respects, the criticism was justified. Several countries with poor human rights records, including China, Cuba and Saudi Arabia, remain on the forty-seven member Council. Meetings often feature politicized bluster instead of earnest dialogue on human rights issues. And the Council has repeatedly and selectively targeted Israel, while failing to address violations in other parts of the world, including the practices of brutal regimes in North Korea and Zimbabwe.
But like its predecessor, the UN Commission on Human Rights, the Council's failures often cloud its tremendous potential. The Commission, which first met in 1946, had numerous achievements over its sixty-year history. The Universal Declaration of Human Rights and the foundational human rights treaties known as the international bill of rights are products of the Commission’s work. Yet the Commission was scrapped in 2006, after decades of autocratic states voting together to block scrutiny of their human rights records. Criticism and frustration crescendoed when Sudan, in the midst of the genocide in Darfur, was re-elected to the Commission in 2004. By the end of its run, as described by former Secretary-General Kofi Annan, the Commission “cast a shadow on the reputation of the United Nations system as a whole.”
As a result, in 2006, the UN General Assembly overhauled the Commission and created the Council by a near-unanimous vote. Even with new membership standards and other changes targeting the Commission’s flaws, the US was one of four countries to vote against the Council’s creation.
Three years later, the Obama administration has recognized that US membership is critical and is rightfully turning the page. As the only global intergovernmental human rights body, the Council offers an indispensable forum for constructive dialogue on human rights issues. Part of what makes it valuable, however, is that unlike judicial and quasi-judicial human rights bodies in the international system, the Council is an inclusive, participatory forum. As such, non-complying countries will inevitably continue to seek membership and obstruct the promotion and protection of human rights. Yet, as a participatory institution, the Council’s credibility and authority cannot be adopted or declared. Nor can it be dogmatically imposed. Rather, key stakeholders must work actively to build the Council to a position of strength. The onus is thus on the US and other like-minded states to engage in the debate and to ensure that the Council is a credible force for human rights.
But equally crucial to the Council’s credibility and truly universal human rights progress is the continued inclusion of diverse countries and perspectives. The human rights movement has long been plagued by widespread perception that it consists of Western values being imposed by Western countries. Although some believe that human rights stem from natural law—law that exists as part of nature and requires no codification—the movement is ultimately an ideological struggle that requires sustained diplomatic engagement.
The Council’s innovative Universal Periodic Review (“UPR”) process—involving a quadrennial review of every UN member state’s human rights compliance—offers a tremendous opportunity for such engagement. Unlike the reviews performed in other UN bodies, the UPR is a state-driven process. Other relevant stakeholders, including non-governmental organizations (“NGOs”), play only a limited role. Although this premise is often cited as an inherent weakness of the UPR, it should instead be viewed as an invaluable opportunity for intergovernmental dialogue and diplomatic pressure where necessary. While independent human rights experts and NGOs are well-suited to providing findings and serving as watchdogs, in the end it is only state and intergovernmental actors who are able to speak from positions of strength.
US leadership in the Council could galvanize the UPR process as a meaningful forum for constructive, diplomatic engagement on human rights issues. Diplomatic engagement can have numerous positive effects, even if countries with poor human rights record remain on the Council, or if no instant resolution is reached with non-complying countries. Engagement establishes the Council as a forum for future constructive dialogue, shows solidarity with human rights reformers within the country at-issue, and causes most countries, even those denying any violation, to acknowledge the existence and import of international human rights. In the initial years of the UPR, fear of tu quoque criticism—arguments that the reviewing country is also guilty of violations—has often led to superficial and ineffectual reviews. But where reviewing states have been open to discussion and willing to talk about difficult issues, reviews have been productive. If the US leads the Council to consistently confront difficult issues, the UPR process can live up to its promise and serve a useful purpose in promoting human rights and US interests worldwide.
US presence on the Council is also critical to the development of issues at the vanguard of human rights law. A prime example is the recent Council examination of the relationship between climate change and human rights. As the Council continues to grapple with other emergent issues, both the US and the human rights movement would benefit from an active US role.
Nevertheless, even if the US wins a seat in May, instant transformation of the Council should not be expected. As with other rights movements, global human rights progress will continue to be imperfect and incremental. There will continue to be debate, disagreement and setbacks. And where failures at the Council occur, countries, not the institution, will continue to be primarily responsible. But it is the US, long-regarded as the leader of the human rights movement, which remains in the best position to engage its diplomatic and moral authority to encourage collective promotion of international human rights.
Despite innumerable setbacks, the human rights movement has made great strides since WWII, with much credit due to the UN. Several comprehensive UN human rights treaties have achieved near-universal ratification and issues are more than ever viewed through a human rights paradigm. Yet, for continued human rights progress to occur at the UN, the Council will need strong political and diplomatic leadership. US membership, as part of a new era of US engagement at the UN, would be a welcome development for the continued progress of international human rights.
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ah Bialostozky is an Associate at White & Case LLP, Chair of the Human Rights Council Sub-Committee of the International Law Association, American Branch, and former Editor-in-Chief of the Northwestern University Journal of International Human Rights. He also serves on the International Law Association, American Branch’s United Nations Law Committee and has worked on international law issues for the Open Society Institute, the American Bar Association and the United Nations Development Program
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