The Future of the UN Human Rights Council

The Future of the UN Human Rights Council Presented by: Mr. Okafor Date: 29 May 2020 Outline - Introduction - Attainments - Problems Introduction - Objective: • The ultimate goal of this talk is to articulate some ideas on the ways and means of preparing and positioning the Council to better achieve its stated goals in its near to medium term future. - Premise: • This talk is based on, and presaged by, analytical assessments of the Council's attainments and problems, and a "knowledge- and experience-driven" appreciation of the nature of the broader socio-economic, political, and institutional contexts in which the Council and its subsidiary bodies must operate. - Focus: • My analysis will be based on evidence of the workings of the Council and its main subsidiary bodies and procedures, i.e. its advisory committee (and main subsidiary body), special procedures, complaints mechanism, and universal periodic review (UPR) mechanism. - The ideas developed and thoughts expressed in this talk have been shaped at the juncture of my academic thought and practical experience with the Council and its subsidiary bodies and secretariat - These inter-luminate and reinforce themselves (see long history of thought on "praxis" - Given space-time limitations, not every subsidiary body of the Council will be explicitly factored into the analysis that is undertaken in this article. Mandate of the Council - The Council's mandated goals can be gleaned from Resolution 60/251 of 2005 which mandates on the Council to: • Promote universal respect for the protection of all human rights and fundamental freedoms for all, without • Distinction of any kind and in a fair and equal manner; • Serve as a forum for human rights dialogue; • Address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon; • Promote the effective coordination and the mainstreaming of human rights within the United Nations system; • Undertake the universal periodic review (UPR) of the compliance of states with international human rights law; and • Make recommendations on the promotion and protection of human rights. Attainments - A much broader and inclusive human rights agenda has now been embraced by the Council, including: • The "third generation" rights to development, permanent sovereignty over natural resources, peace, the environment; • The right to be free from the adverse impact of the dumping of toxic waste; • The rights of peasants; • The right to be free from the adverse impacts of unilateral coercive measures; • The right of peoples and individuals to solidarity; • The right to free from the negative impacts of foreign debts; • And the necessity for an equitable and just international order. • NOTE: to different degrees, of course; but still integral and quotidian in each case • NOTE: The Council's agenda now reflects more fully: the ways in which human rights are imagined by the vast majority of the world's population and the range of human rights concerns that trouble them - Universal Periodic Review: Unlike during the era of the Commission, every single UN member state is now subjected to periodic review by the Council to assess the extent to which it is compliant with international human rights norms • The excessive selectivity that its predecessor body was accused of was greatly reduced in this way • Notice the stress of the word "excessive" • There will always be some degree of selectivity given space, time, and resource constraints so Council must prioritize • - UPR has some room for improvement, but the point remains Reform of the System of Appointing Special Procedures Mandate Holders (SPMHs): i.e. the individuals appointed by the Council as its thematic or country-focused special rapporteurs, independent experts or members of five-person working groups): • ✓ It is now significantly more merit-driven and transparent than it was under the then Commission • ✓ Tends to produce more gender inclusiveness and geo-political balance in the lists of those short-listed and/or eventually appointed as SPMHs, than was the previously the case. • X System has not of course been emptied of either "Politics" or "politics" (still run entirely by Ambassadors!) - • X So definitely "Not yet Uhuru"! • Still, there have been significant positive shifts Increase in standing invitations: The number of standing invitations issued by UN member states to thematic SPMHs, to visit their various territories in order to more closely assess the human rights records of those states, has increased significantly. • For example, from only 89 states in September 2011, this number has now risen to 127 states as at January 2020 • Not a complete success, since ever state should have issued such a "standing invitation" by now • But, still great - since these standing invitations reduce the number and difficulty of the hurdles thematic SPMHs have to jump over to visit the state - A functional SIDS/LDCs Trust Fund has been established: This is to assist small island developing states (SIDS) and least developed countries (LDCs) to participate in the work of the Council. • Many can't afford missions in Geneva • Many cannot afford adequate staff/resources to participate in Council's work in • Geneva • Work of the Fund is now under the great leadership of Ms. Fatou Camara Houel) • More SIDs have now been elected to the Council • Increased participation by SIDS/LDCs has been recorded • This has, undoubtedly enriched the debates with their specific perspectives Problems - A serious resource deficit due to the UN's overall “severe liquidity crisis" • Worst cash crisis in a decade, but is not the first one (e.g. in 1986) • Failure of states to pay up and failure of the US to pay, or tardiness in paying (22% share) • Reduced regular OHCHR budget to support UN human rights pillar (of just 3.7% of overall UN budget) - • Scaling back of resources available to Council and SPMHs, et al • Reduction in staff strength/travel Criticisms regarding the allegedly poor human rights records of some of its member states • For example, the elections/re-elections to the Council of Libya (2010); Saudi Arabia (2013, 2016 and 2019) • Understandable argument is that: "Where States with demonstrably poor human rights records are elected to the Council it undermines the body's authority and credibility - especially in the public eye." (e.g. Universal Rights Group, 2018). • However, much less heat when other countries that also violate human rights are elected to the Council - Concerns have been expressed regarding alleged selectivity within the Council regarding the frequency with which the human rights records of certain states are scrutinized by the Council. • E.g. the US' June 2018 withdrawal from the Council condemned the Council as "biased" and having a "disproportionate focus on Israel." • Irony: US and other powers tend to escape scrutiny • No permanent agenda item on Israel as alleged (only on the occupied Palestinian territories and this implicates other states too) • Another permanent agenda item on racism exists (implicating very many states as well) - • Argument of the US is difficult to sustain • Generates lots of heat regardless Human rights fact-finding missions are usually not long enough (and are therefore not deep or rigorous enough) • Budgetary constraints reduce money available and thus mean less time • Only so much can be accomplished in one to two weeks • More time allows more depth and rigor • Fact-finders (e.g. SPMHs) do their very best, but still problematic • Fact that SPMHs are assisted by OHCHR staff does not detract from the argument - Efforts by some states to undermine the de facto independence of SPMHs: • Their independence is of paramount importance • They are required by our Code of Conduct to act "free of any kind of extraneous influence, incitement, pressure, threat...either direct or indirect" • Yet, the independence of SPMHs has never been free from a certain degree of pressure from some states, and this remains so • Examples: verbal attacks against SPMHs; efforts to prevent them from gaining access to locations; etc. - The “Yes, Minister!" problem • As in the British TV series! • A less obvious challenge to the de facto independence of SPMHs • An analogy between small "p" bureaucratic politics and the situation faced by SPMHS • OHCHR bureaucrats (who assist SPMHs) too often develop their own institutional agendas and ways of exercising a high degree of influence over what gets done or does not get done by office-holders (who are supposedly in charge) • Fact that SPMHs do not hire or manage their own OHCHR staff facilitates this problem (incentive structure) - Despite the large number of standing invitations to thematic SPMHs that states have now issued, there are far-too-many thematic SPMHs that still experience difficulty in gaining access to many states to conduct their fact-finding missions. - • This is rather ironic • How genuine are these standing invitations, really? The Council's Advisory Committee lacks the power to initiate any of the studies that it is mandated to conduct, and thus exercises very limited agency. • Supposed to serve as Council's think- tank • It can propose topics for Council's approval • Approval does not always come or come in time • Advisory Committee finds it hard to work a the cutting edge • Sometimes Committee has little to do cause no mandates have been handed down by the Council - In terms of a decline in the quality and efficiency of the Advisory's Committee's rigorous production of human rights knowledge, there are now too many retired diplomats on the Committee and too few scholars serving on that body. • For example the doubling of the number of retired diplomats serving on the committee from only three in March 2011 to six in January 2020 has been quite sharp. • Yet the work is largely and primarily suited to experienced human rights researchers • Committee benefits greatly from having some retired diplomats but not that many (detracts from research capacity on the committee) - The Council's praxis is also being troubled by the challenge that right wing populism poses in our time • Working definition of populism (Kurt Weyland): "a political strategy through which personalistic leader seeks or exercises government power based on direct, unmediated, institutionalized support from large numbers of heterogeneous followers." • The right-wing type has tended to the most to attack the UN and to de-fund it • For e.g., US President Trump's "America First" world view and policy has led him to attack both multilateralism and the UN; and Hungary has directly attacked the credibility of the UN, the Council and the Office of the UN High Commissioner for Human Rights that supports the Council's work • They cause some problems for the Council/OHCHR: funding, noncooperation and legitimacy challenges