Opinio Juris is pleased to welcome this guest post from Hillel Neuer, Executive Director of UN Watch. He now maintains his own blog “The View from Geneva,” on which he has cross-posted this contribution.
No one’s talking about it, but soon — perhaps in early November — the UN General Assembly will be asked to approve the new configuration of the UN Human Rights Council. If you want to know how it was all conceived, see the compelling new timeline (with photos!) released today for the first time by UN Watch: How the UN Human Rights Council Was Born. It’s an eye-opener into the dark side of diplomacy that sometimes lurks behind international law and its institutions.
And now, a contest. If you can identify any point at which the council legally adopted the June 2007 draft institution-building package — purporting to establish the council’s rules of procedure, governing agenda, country and thematic investigatory mandates, and the much bally-hooed universal periodic review mechanism — I will buy you dinner at one of Geneva’s finest restaurants.
Now it all goes before the General Assembly. If the GA properly approves it, the legal defect may be cured. But should the GA approve it?
Some will say that nothing should be done that might jeopardize the mechanisms of the council that work. How much actually works in this new era of a council that is almost entirely dominated by the agenda of repressive regimes is questionable. The backsliding of the past year has no precedent. The democracies are outnumbered, on the defensive, and, apart from the isolated exception of last week’s Burma session, losing badly.
But even if one supports the council and the adoption of the package, by introducing only a few brief amendments the GA has a chance to say no to some terrible wrongs:
- It can say no to the package’s scandalous elimination of the independent investigators into human rights violations in Cuba and Belarus.
- It can say no to placing the remaining 10 country monitors — who report on atrocities in Sudan and elsewhere — on the chopping block euphemistically called a “review” process.
- It can say no to the adoption of a new rule — deceptively crafted as a mere guideline — that will make it harder than ever before to pass any resolution criticizing a human rights abusing country by name.
- It can say no to the adoption of a so-called “code of conduct” which was designed by China, Algeria, and the council’s other authoritarian regimes in order to cow independent human rights monitors into silence.
- It can say no to the council’s permanent indictment of Israel under a special agenda item, which was famously criticized by Secretary-General Ban Ki-moon himself.
Is it right for the GA to reopen the acts of its subsidiary bodies? Absolutely. Decisions of the old Commission on Human Rights were several times overturned by its parent body, ECOSOC. This past summer, the democracies on ECOSOC saw to the successful overturning of discriminatory decisions by the 19-member Committee on NGOs which would have denied recognition to gay groups from Canada and Sweden.
The GA is crucial. Unlike the warped majority on the council, the GA, flawed as it is, proved last year that it can still muster a majority to pass resolutions for human rights victims in Iran, Belarus, North Korea and elswhere. Indeed, if a majority in the GA voted last year to condemn violations by Belarus — and then later to keep Belarus off the council — then surely a majority exists to maintain the monitoring mandate into those violations.
As the timeline points out, in June the council denied Canada its right to vote on the package. Now Canada will have that chance. The U.S. and Australia could not have their say, nor many other democracies, because they are not voting members of the council. Now they can. Council president De Alba pulled an end run on Poland, which had vociferously opposed the package’s abandonment of human rights victims in Belarus. By his waiting past midnight, Poland’s position no longer mattered: its one-year membership had expired. But now, Poland, too, can have its say.
Unless NGOs, the media, and public opinion become engaged, the powers that be will just sweep this one under the rug. Stay tuned.