The New United Nations Human Rights Council
After five months of contentious negotiations to develop a new entity to replace the ineffective Commission on Human Rights, the United Nations General Assembly overwhelmingly approved the creation of a Human Rights Council on March 15, 2006. The vote approved a draft resolution, put forth as a compromise proposal on February 23, 2006, by General Assembly President Jan Eliasson. The outcome is recognized as being imperfect due to efforts to reach consensus among Member States. However, supporters of the Human Rights Council consider this agreement to be a significant accomplishment for UN Reform.
Secretary-General Kofi Annan, High Commissioner for Human Rights Louise Arbour, the United Nations Association-USA, the human rights non-governmental organizations (NGOs), and several Nobel Peace Prize laureates publicly supported the new compromise proposal. The common sentiment among them was that the new Human Rights Council represents a substantial improvement over the Commission in many ways, while preserving some of the Commission?s best features, including NGO access, use of independent rapporteurs, and the authority to adopt individual country resolutions.
John Bolton, the United States Permanent Representative to the UN, voiced strong opposition and voted against the proposal because the compromise included a fundamental concession among the many problems in the view of the U.S.: the text dropped the requirement for election to the Council from a minimum two-thirds of UN Member States present and voting, to a simple majority of all Member States. The U.S. argued that this provision, along with the failure to include a clause excluding States sanctioned for human rights abuses by the Security Council, may permit abusive regimes to participate in the Human Rights Council.
The Debate Concerning the Human Rights Council and Its New Provisions
Criteria for Membership
The NGO community, the Secretary-General, the U.S., and many other states were strong advocates of excluding States with atrocious human rights records from participating in the new Human Rights Council. This position responded to prior or current membership by countries accused of gross human rights abuses, including Zimbabwe, the Sudan, the Republic of the Congo, Cuba, Ethiopia, and Saudi Arabia, as well as Libya, which chaired the Commission in 2003. There has been concern that some States previously sought membership on the Commission to shield themselves from public condemnation or to have a platform to criticize others. The new Human Rights Council includes the criterion that membership ?shall take into account candidates? contribution to the promotion and protection of human rights.? An earlier draft prohibited membership to any State found responsible for human rights abuses or violations by UN bodies. However, the new Council opens participation to all Member States regardless of Security Council sanctions, something strongly opposed by the U.S. Contention will remain as to how the UN defines and evaluates the ?contribution? requirement, as the language is ambiguous and could still permit States that abuse human rights to gain membership.
The Commission on Human Rights had 53 members, or over 25% of UN Member States. The U.S. continuously advocated that that number was too large to be effective, with Ambassador Bolton indicating a preference for 20 members in the new Council, and 30 as an absolute maximum. The new Council includes 47 members, which is a greater number than even than the original amount suggested by General Assembly President Eliasson. A larger Council increases the opportunity for small developing States to have access to the world stage. However, there is also a greater possibility of inefficiency and diplomatic wrangling. The new Council also includes widespread geographic representation based upon regional groups, with the largest number of seats going to Africa and Asia. The U.S. expressed concern that the regional allocation does not properly take into account a State?s human rights performance, but the ?contribution? clause and secret balloting (which would not allow regional groups to select their own Council members, but would enable States to vote against neighboring powers without risking retaliation) may address this problem.
There was originally contention around whether the permanent five members of the Security Council (the United Kingdom, France, the Russian Federation, China, and the U.S.) would have an enhanced opportunity for membership on the Council. Ambassador Bolton originally advocated for the five permanent members to have permanent seats on the Human Rights Council, but backed away from this position in response to widespread opposition. It was not included in the final version.
The most controversial issues stemmed from electoral requirements. The debate centered on whether a two-thirds (2/3) vote or a simple majority should be required to obtain membership. The U.S., the European Union, and the NGO community originally endorsed a two-thirds (2/3) requirement in order to make it easier to exclude states that are gross violators of human rights. An interesting note was that this rule could have excluded the U.S. from a seat, which happened a few years ago, by a united Islamic Conference vote (the 56 Islamic states) or by states seeking retribution. The new Council only requires a simple majority directly elected through secret ballots by the General Assembly. As noted above, though, the simple majority must be a majority of all Member States. In some cases, that could set a higher standard for election than a standard of two-thirds of the Member States actually present and voting at the time the election is held.
Another disputed provision was the inclusion of term limits. Council members will serve for a three-year period and are not eligible for re-election after two consecutive terms. The U.S. opposed this provision since it precludes the U.S. from always being eligible to sit on the Human Rights Council.
An important provision is that all States sitting on the new Council will be subject to a ?universal periodic review mechanism? that examines their human rights records. The intention of this clause is to keep States from using the Council to shield their own human rights records from scrutiny or from ?hiding out? while criticizing other States.
An issue of previous concern had been the inactivity of the Human Rights Commission, stemming from both its short session and its infrequent meetings. The Commission met only six weeks a year in a single session. As a result, it was often not able to address human rights concerns that arose because of the delay in response time and a possible backlog by the time it actually sat. The new Council must meet regularly and for at least three sessions a year, one of them to be no less than ten weeks. An important additional feature that the U.S. advocated and was included is that the Human Rights Council will be able to have ?special sessions? if the need arises, at the request of a Member of the Council with support from one-third of the Council.
The new Human Rights Council is widely acknowledged to be imperfect. However, there were risks in the failure to create a new Council, which would have been be an embarrassment for the UN, or to create one that showed no semblance of reform or lessons learned from the Commission on Human Rights, which would have been a different type of embarrassment for the UN. To succeed, the new Human Rights Council must truly be ?transparent, fair and impartial,? as the text indicates, ?and uphold the highest standards in the promotion and protection of human rights.? The test will be whether the UN General Assembly elects members with respectable human rights records which truly want to confront those States that are responsible for human rights abuses, regardless of geo-strategic or border relationships.
Scott R. Lyons, an ASIL member, is a legal analyst and project manager for the American Bar Association's Central European and Eurasian Law Initiative (ABA/CEELI). He is a former Institute Scholar for the Law, Peace Negotiations and War Crimes Institute and Peace Fellow for the Public International Law and Policy Group. He is also a member of the United Nations Association-NCA Human Rights Task Force.
 The vote was 170 to 4, with three abstentions. The resolution was opposed by the United States, Israel, the Marshall Islands and Palau. Belarus, Iran and Venezuela abstained.
 General Assembly President Eliasson proposed 45 members in an earlier draft.
 The regional distribution of seats are: African Group, 13; Asian Group, 13; Eastern Europe Group, 6; Latin American and Caribbean Group, 8; and Western Europe and Other Western Democracies, 7.