JURIST Guest Columnist Chandra Lekha Sriram, Chair of Human Rights at the University of East London School of Law (UK), says the current proposal for a new UN Human Rights Council may not be perfect, but it is far better than either the current UN Human Rights Commission or the more exclusionary type of Human Rights Council the US is promoting…

Monday in Geneva, the UN Human Rights Commission is scheduled to open its annual six-week session with renowned human rights abusers such as Sudan, Zimbabwe, and China among its members. It wasn’t supposed to be like this. The Human Rights Commission was meant to have been replaced by a smaller, more transparent, Human Rights Council that would have excluded regimes with appalling human rights records, but John Bolton, the US Representative to the UN, has effectively undermined negotiations for the creation of that body, leaving the Commission in place for at least another year. This is perhaps most ironic because the United States has been among the most vociferous critics of the Commission, and helped lead the call for its replacement. So what happened?

Last fall, at the annual UN summit, members called for the creation of the new Human Rights Council. This initiated five months of negotiation, in which the key concerns included membership selection. It was hoped that no more could a country such as Sudan effectively seek to block any discussion of its own atrocities at home merely by being a member of the global human rights body: their membership would be blocked. Just how to exclude such abusers, however, has been a matter of some dispute. On February 23rd, Jan Eliasson, the President of the General Assembly, put forth a proposal for a Human Rights Council that would constitute a marked improvement over the old commission, although it would be far from perfect. Bolton’s continued objections, counter-proposals, and amendments have not merely prevented the formation of the Council this year, they may permanently block it, or weaken its final shape by providing the opportunity for countries opposed to protection of human rights to offer their own amendments.

In what way would the proposed Council be preferable? First, it will work harder, longer: the current Commission only meets once a year for six weeks, while the Council would meet three times a year for ten weeks, with the possibility of members calling for additional sessions as necessary. Second, it would introduce a universal review procedure, allowing scrutiny of all states, including powerful ones, addressing the critique that a double standard exists before the Commission. Third, it would retain some of the better elements of the old Commission: its use of special rapporteurs, and the right to address country specific situations directly. Fourth and most importantly, safeguards would be put in place to help bar the membership of the most serious rights abusers in the global human rights body. Eliasson’s proposal would require an absolute majority of the UN General Assembly’s 191 members, or 96 states, to vote affirmatively for a state, in order for it to become a member of the Council. Further, states that are members of the Council commit themselves not to commit violations, subject themselves to review while on the Council, and can be suspended for gross human rights violations. While these membership standards are not as stringent as those originally proposed by the UN Secretary-General, who suggested that a 2/3 majority be required for election to the Council, they are a vast improvement.

The United States has, however, stuck to a strict negotiating position that inevitably undermined an agreement. It has, according to Human Rights Watch, refused to support a proposal to allow regional blocs to nominate more states than seats available that would have ensured an open and competitive election for seats from each bloc, and provided a further protection against automatic election of rights-abusing countries. It did not strongly support the Secretary-General’s proposal for an election threshold of 2/3, whilst now criticizing the absolute majority threshold as too low. It has steadfastly, instead, promoted different standards for exclusion of states. It has argued that all states currently under UN sanctions should be excluded, a standard which clearly protects members of the P-5 [the 5 permanent veto-wielding members of the Security Council] and states under their protection. Further, as the only criteria by which states would be excluded from membership, this proposal makes no sense at all, as many states that seriously violate human rights are not currently under sanction, either because they are politically protected, or because of disinterest. States that would be eligible for election to the Council, on the US proposal, would include current members Zimbabwe and China, as well as Libya, Burma, and Uzbekistan, to name a few. A demand by Bolton that the P-5 might expect to have permanent membership was hardly seen as reassuring, as this would have meant the inclusion of Russia and China, responsible for repression and abuses in Chechnya and Tibet, respectively, and indeed of a United States facing regular scandals regarding alleged torture of prisoners in the prison on Guantanamo and in Abu Ghraib, and rendition of terror suspects to countries where they face torture. While this demand has been formally dropped, reliance on UN sanctions as the sole criteria for exclusion effectively protects the P-5. These seem cynical negotiating moves from a country which previously blasted the Commission as a haven for rights-abusing nations to protect themselves.

The current proposal for a Human Rights Council is not perfect. But it is far better than the old Commission, and far better than the one that the US would promote. Worse still, US delays have allowed the old Commission to continue, and may result in the delay or even death of the proposed Council. For as long as the Commission survives – with Sudan as a member while genocide, war crimes, and crimes against humanity continue unabated in Darfur – we have John Bolton to thank, for pursuing a cynical and rigid negotiating position at the cost of real change.

Chandra Lekha Sriram is Chair of Human Rights at the University of East London School of Law.
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