Sunday, June 1, 2008

Editor's Introduction- June 2008

"A Screaming Start: The UN and Human Rights."The Economist. April 24, 2008.

An annotation

The formation of the new United Nations Human Rights Council in 2006, out of the ashes of the Commission on Human Rights, marked a step toward correcting the inefficiency and ineffectiveness of the previous attempt at governance. The Council’s advocates raised issues concerned with the fact that the Commission was not credible because it listed infamously abusive states among its membership. These supporters were confronted by opponents to the Council such as former U.S. Ambassador John Bolton, a long-time critic of the U.N., who argued that nothing had changed when Cuba, China and Pakistan were among the first countries to join the new body. Two years into its infancy, it seems appropriate to consider how the Human Rights Council has improved upon its predecessor, as well as in what ways it has not.

“This [universal periodic review] marks the main difference between the council and its predecessor. The commission often focused on just a dozen states, which complained they were singled out because they lacked enough big friends to keep critics at bay.”

One step taken to improve governance and credibility is the establishment of a universal periodic review which all member states must submit to the Council every four years. Consisting of a self-evaluation, a report by the High Commissioner and a report by human rights groups and other relevant stakeholders, this review aims to inject egalitarianism and subject all states to the same processes and criteria before the Council makes its conclusive report. While this sounds like a convoluted system that could be easily manipulated, it also may be the first attempt at democratizing a situation hindered by entrenched power relations.

“The Muslim and non-aligned states often blame the West for focusing on abuses in poor countries while ignoring its own faults. But they rarely take any action in the council over alleged rich-world misdeeds such as mistreatment of terror suspects. That may be because poor, angry countries hesitate to threaten their relationship with powerful partners and aid donors by taunting them over human rights.”

In matters of global governance, power differentiation is an inevitable roadblock, and agenda-setting in bodies such as the Council is a clear exercise of power. In this case, as the Council becomes more democratic in its processes there remain inequalities that play out by preventing full, honest discussion of human rights records of all member states of the United Nations. It remains to be seen whether or not the Council makes decent strides toward fairness in its reporting and judgment.

These issues and others are considered in this month’s Roundtable.


The Myth of Membership: Reforming the U.N. Human Rights Council

by Sonia Cardenas

"A productive dialogue about reforming the Human Rights Council should strive to be de-politicized, emphasizing notions of equal treatment. Who sits on the Council is less important than what they are permitted to do once there.”

The purportedly new-and-improved Human Rights Council is, by most accounts, failing to live up to its promise. Critics accuse the Council of following in the footsteps of its predecessor the U.N. Human Rights Commission because it permits rights abusers among its ranks and it focuses overwhelmingly on Israel. The dominant assumption, articulated by the United States, is that this is a problem of membership; more stringent criteria would result in a less biased body. This, however, is wishful thinking. Changing the rules of membership would only substitute one set of biases for another. A productive dialogue about reforming the Human Rights Council should strive to be de-politicized, emphasizing notions of equal treatment. Who sits on the Council is less important than what they are permitted to do once there.

The Council’s problem is not that it calls attention to Israeli violations, but that it does so to the exclusion of other potential cases. Critics attribute the Council’s bias to its control by the Organisation of the Islamic Conference (OIC) and the Non-Aligned Movement (NAM). The reality is far more complex. Only fourteen of the Council’s forty-seven members belong to the OIC; and resolutions isolating Israel have been supported widely, including by Latin American countries. Nor is it feasible for an international organization concerned with regional representation to exclude members of NAM, comprising almost two-thirds of the world’s states.

For the United States, the Council’s defects are no surprise. Had Ambassador John Bolton gotten his way, the Council would be a leaner and tougher body: with thirty members maximum, elected by two-thirds of the General Assembly rather than simple majority. Rights-abusing states would be excluded (but not necessarily Security Council members Russia and China), and the Council would focus on the most egregious situations. When things did not go its way, the United States refused to participate.

While excluding violators from the Council may seem sensible, it is in fact problematic. Here are the reasons why:

-How are states to determine fairly which violations count or which victims matter? It is delusional to assume that voting will be free of political calculations;

-Human rights practices are a matter of gradation. Consequently, dividing the world into rights violators and protectors is misguided and counter-productive. It inhibits dialogue, reinforces global cleavages, and disenfranchises many states;

-In practice, human rights norms are contested. Should civil and political rights be privileged? Can national security ever justify torture? Should religious tolerance limit free speech? Only a Human Rights Council that debates these positions will be most credible; and

-The prospect of Council membership is not an incentive to change state practices. Accession conditionality is typically effective vis-à-vis organizations promising large benefits, such as the E.U. or NATO. The benefits of belonging to the Council are, in contrast, small, ambiguous, and realizable in less costly ways than by altering human rights practices.

The new Human Rights Council is not all bad. During the most recent session, it issued twenty resolutions, only five of them country-specific (two on Israel, one on Palestinian self-determination, and two targeting Sudan and North Korea). Other resolutions addressed topics as varied as disability rights, counter-terrorism, and the right to food. The new broader-based electoral system—direct vote by the General Assembly—has kept former Commission members like Libya, Zimbabwe, and Sudan off the Council, even if critics deride Saudi Arabia or Cuba’s election, and secret ballots undermine transparency. In principle, moreover, the new system of universal periodic review introduces some fairness, subjecting all states to scrutiny, while more frequent meetings give the Council greater flexibility in emergency situations.

The Council’s special procedures—a legacy of the earlier Commission—are also crucial. These procedures currently consist of twenty-nine thematic and nine country mechanisms. Critics are correct that, among country mandates, only the special rapporteur for violations in the Palestinian territories has an indefinite tenure. But it is also true that special-procedure mechanisms have been robust, leading in 2007 alone to a total of sixty-two fact-finding missions to fifty-one countries. This work should not be forgotten in the rush to highlight weaknesses.

While the Council is scheduled for self-review in 2011, serious dialogue about potential reforms must begin now. UNGA Resolution 60/251,which created the Council, pushes the body to promote human rights “in a fair and equal manner.” It further encourages “the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation.” Can this be achieved, or is it another human rights chimera?

Institutional design matters, more so if premised on political realities. Reforming the Human Rights Council requires changing procedural (not membership) rules to promote equal treatment of violators. For example, agenda rules could re-structure the amount of time or number of resolutions devoted to single cases. Country-specific resolutions might be restricted to the special-procedures mechanisms or newly arising emergencies, while Council resolutions could be largely thematic. Above all, reforms should be framed in terms of general principles like equal treatment, not the particular interests of member states. Political exclusion should not drive a body dedicated to human inclusiveness.

Sonia Cardenas is Associate Professor of Political Science and Director of the Human Rights Program at Trinity College in Hartford, Connecticut. She is the author of numerous publications, including Conflict and Compliance: State Responses to International Human Rights Pressure (University of Pennsylvania Press, 2007). She is currently completing two book projects, both for the University of Pennsylvania Press— Chains of Justice: The Global Rise of State Institutions for Human Rights and a textbook, Terror and Hope: The Politics of Human Rights in Latin America.


Exile: Why the Human Rights Council Will Not Work

by Daniel J. Graeber

"Only through a level of communal consent can a human rights regime emerge that will encourage full cooperation. Interaction between states, not exclusion, is likely to alter the preferences and behavior of states operating at the margins of normative behavior.”

The Economist writes in an April 24 th edition that the U.N.’s Human Rights Council, the predecessor to the sixty-year-old U.N. Commission on Human Rights, is a “one-sided Israeli-bashing” organization. The Economist argues that the inclusion of second- and third-tier countries from the Organization of Islamic Conference (OIC) and the Non-Aligned Movement (NAM) makes it a forum for targeting offenses committed by the Israeli government against the Palestinian people.

The Human Rights Council was established in 2006 to replace the Human Rights Commission. Human rights groups heaped criticism on the Commission for including member states who failed to take the issue to heart and who themselves committed grave violations of human rights. The new body faces much the same criticism, as did its predecessor. Human rights groups called on the U.N. General Assembly to oppose Bahrain, Gabon, Pakistan, Sri Lanka, and Zambia, and on May 22, Sri Lanka lost its bid for a seat allocated to Asian partners due to deteriorating human rights conditions in the country.

The British Ambassador to the United Nations, John Sawers, told Voice of America that the point of the Council is to raise the benchmark of acceptable human rights behavior across the globe. Yet he also observed that the Human Rights Council “is not about those who do against those who don’t. I think it is inevitable that every country will have its own issues on human rights.”

Considerations regarding historical and cultural context bear mentioning here. When we speak of any sort of system like a democratic government or a body such as the United Nations, we need to consider several factors. The Islamic states will converge as a bloc, the Eastern European states will converge as a bloc and so on. Each bloc will voice the concerns of their particular sphere of influence. From this constellation of influences come major decisions. And, as the United Nations is only as strong and only as effective as its member states, the concerns from this constellation of influences must be considered if the world body is to function as the pragmatic voice of the international community. The Economist argues that the Islamic and Non-Aligned members “hone in on Israel” because their status in the geopolitical hierarchy makes challenging the West a futile endeavor. But to sideline certain blocs is the diplomatic equivalent of cherry-picking.

One of the early resolutions from the Council, The Economist says, was a decision backed by Russia and the Islamic members that allows for certain degrees of “respect for religions and beliefs.” Hardly a measure embraced by Israel, one could argue. The Economist points to press-freedom groups who said they were appalled by such a resolution. Here again, we must weigh the considerations of other cultures when trying to reach a pragmatic benchmark of acceptable behavior—especially in an interconnected world forum. Too often, it seems, the West looks at the rest of the world with bewilderment and thinks it needs fixing because it does not match their prescription of “How Things Work.” Nor can the West understand the criticism against Israel. However, it is tremendously narrow sighted to believe that Western ideals are the last word in modern, functioning society, especially at the United Nations.

In a group, the most influential and most successful members define the rules of the game, but those rules are not immune to the constellation of influences. Why isn’t Israel subject to the concerns of all members, the “others” ask—and rightfully so. International players must either seek alternative means to success (honing in on Israel), play by the rules of those who have mastered the game, or fall by the way side. The same holds true with the United Nations. Through the various blocs represented, a unified voice should emerge reflecting what works, what’s acceptable and what defines the rules. Excluding or condemning a member of the conglomeration inflects a certain degree of bias that makes the general purpose ineffective. If the “ritual abusers” are not performing well and not playing according to the rules, excluding them from the game will not help them win.

The Economist says “Human rights are one of the three pillars on which the U.N. is supposed to rest.” If the purpose of the Human Rights Council is to establish the benchmark of acceptable behavior across all member states, it should include a fair representation of all member states. Exclusion encourages dissent. “I reiterate our position again–we don’t see a need for a foreign body to monitor us,” said Sri Lankan Foreign Minister Rohitha Bogollagama.

The veto-wielding members of the United Nations often look to the international forum as a way to arrange the world as it sees fit. But the United Nations is a body of engagement, not exile. To single out Sri Lankan human rights abuses while ignoring, for example, the rights of detainees in Guantanamo Bay, or the oppression of the Palestinian people, is duplicitous. International provisions require a certain level of guidance from all parties. Only through a level of communal consent can a human rights regime emerge that will encourage full cooperation. Interaction between states, not exclusion, is likely to alter the preferences and behavior of states operating at the margins of normative behavior. Convene a representative human rights forum, or don’t convene one at all.

Decisions series since its inception, writing on war crimes and international law. He has focused considerably on the legal aspects concerning the U.S.-led "war on terror" and various war crimes tribunals. He has lectured on the history of war crimes in the international arena and served as a professor of ethics at Grand Valley State University. He has published works on the history of the U.S. relationship with Israel and the U.S. foreign policy regarding Hamas. He is currently a writer for United Press International covering Iraqi political developments, as well as the oil and energy sector. He lives in Grand Rapids, Michigan.


The Human Rights Council: A Failure in Global Governance

by Eric K. Leonard

"The flawed state-centric system is the origin of the Council's problems and until a time in which the global governance structure is not reliant on states, humanity will continue to fail in its attempt to protect global human rights."

“The UN and Human Rights: A Screaming Start,” makes several valid points of concern in regards to the recently formed Human Rights Council. As the article stipulates, in many ways the Council does not look radically different from its predecessor, the Human Rights Commission, in that it fails to provide membership regulations that would keep “not free” states of the Council (with only twenty-three out of forty-seven states defined as free) and it lacks the clout in the political hierarchy to truly accomplish anything of substance. However, the article does point out that the one mechanism that could prove useful is the new universal periodic review process in which every UN member state must submit to a peer-review of their human rights record every four years. Such a process is a tremendous step forward and it may even provide a mechanism of increased public shame and humiliation of serial offenders of human rights law. However, what this article fails to address in its critique of the Council is the origin of the organization’s flaws, which is not its membership or its anti-Israeli focus, but its state-centric approach to curtailing human rights violations.

One of the primary problems in the fight to improve human rights is the state-centric nature by which the world approaches this issue. This is not only a quandary for the area of human rights, but for many of the global community’s issue-areas. The Human Rights Council, although laudable in its mission, rhetoric, and stated goals, fails to provide a meaningful mechanism by which to correct and/or punish the world’s violators of human rights law. One mechanism that may assist in assessing the Council’s success or failure to fulfill its mandate, which includes both the promotion of and prevention of human rights, is the literature on legalization. This theoretical approach to international law and organization provides a lens by which scholars and practitioners can gauge the plausibility of international organizations to impact the global system and uphold international legal standards. It basis the strength of an organization on three characteristics: obligation, precision, and delegation. The term “obligation” refers to the level of legal commitment that binds the agents; “precision” involves an analysis of the level of ambiguity that surrounds the rules that define the institution; and finally, “delegation” refers to the amount of authority that the institution grants to third parties. This authority concerns the ability of third parties to implement, interpret and apply rules; resolve disputes; and make future rules.

It is this final characteristic that is most pertinent to a discussion of the Human Rights Council and its impact on the global governance structure. As the Council is currently constructed there is an authority structure that is solely reliant on member states to not only review the human rights record of its peers, but to also elect those that will serve on the Council. This structure of governance provides a system of “soft law” which is bound to fail—failure being defined as the inability to uphold the organization’s mandate. John Locke recognized this problem in his famous characterization of the state of nature. In his state of nature, autonomous self-interested entities, in this case states, residing in a state of anarchy have the ability to serve as judge and executive in their own cases. This method of adjudication results in a biased method of judgment that serves the interests of the stronger party involved. The rational byproduct of such a system was Locke’s recommendation that the social contract contain a known and neutral arbitrator.

In essence, that is what the global system also needs and what the Human Rights Council fails to provide. The Council is not neutral and it lacks any real power of adjudication. Thus, it fails to fulfill either of the requirements Locke set forth. As a result, if the global governance structure is to ever implement a system that truly protects human rights and prevents future violations there must be a system of authority predicated on third-party arbitration. Until that time it is my belief that the global community will continue to establish flawed institutions that uphold the façade of human rights protection when in essence they are only maintaining a self-interested or national interest agenda that may occasionally accord with the principles and norms of the human rights movement, but never fully embraces these norms.

If we look at the Human Rights Council, and for that matter its predecessor the Commission on Human Rights, it is clear that they both lack a system of delegation that relies on a neutral-arbitrator. This is the fundamental problem of the Council and although it provides viable means by which to begin a dialogue on human rights, it will never fulfill its mandate in total. The flawed state-centric system is the origin of the Council’s problems and until a time in which the global governance structure is not reliant on states, humanity will continue to fail in its attempt to protect global human rights.

Eric K. Leonard is the Henkel Family Endowed Chair in International Affairs and Director of General Education at Shenandoah University in Winchester, VA. He has published several articles, case studies and a book on such issues as the International Criminal Court, humanitarian law, theoretical conceptualizations of sovereignty, and global governance. His book is entitled, The Onset of Global Governance: International Relations Theory and the International Criminal Court (Ashgate, 2005).