The New Human Rights Council: Will the UN's best effort be good enough? An Interview with Lawrence Moss

By Gergana Nedeva
14 February 2006, updated on 15 March 2006

On March 15, 2006, 170 members states at the United Nations agreed to establish a new Human Rights Council to replace the discredited Commission on Human Rights. Mr. Jan Eliasson, President of the General Assembly, called the plan “his best effort” but encountered fierce opposition from the United States, which complained that the proposed reforms did not go far enough. Israel, Marshall Islands, and Palau joined the United States in a ‘no’ vote; Belarus, Iran, and Venezuela abstained. Despite the U.S. objections, American Ambassador John Bolton said “the U.S. will work cooperatively with other member states to make the council as strong and effective as it can be.” In February, we talked with Mr. Lawrence Moss, the Special Counsel for U.N. Reform at Human Rights Watch, who has been following the negotiations at the United Nations closely. Mr. Moss said “President Eliasson’s text provides for a significant improvement over the commission, although it is not as strong as Human Rights Watch had sought.”

According to the resolution that was passed yesterday, the Human Rights Council will be based in Geneva and be established as a subsidiary organ to the General Assembly. The body will consist of 47 members, elected with secret ballots by an absolute majority, which translates into 96 out of the 191 votes at the General Assembly. [Previously, the commission consisted of 53 members and needed 28 [or fewer]¹ votes out of the 54 members of the Economic and Social Council.] Members of the new council will serve for a period of three years and will not be eligible for immediate re-election after two consecutive terms. A country sitting on the council can be suspended for gross and systematic violations of human rights with a two-thirds majority vote by present and voting states. The selection of members will reflect equitable geographic distribution as follows: 13 seats for Africa, 13 for Asia, six for Eastern Europe, eight for Latin America and the Caribbean, and seven for Western Europe and Other Countries. The new council will meet for at least 10 weeks throughout the year and will be able to hold special sessions at the request of a member state with the support of one-third of the members.

The United States did not get membership criteria but a mechanism to suspend membership of countries who are suspected of abusive behavior. Why so much opposition to the criteria?

The United States has pushed not merely for mechanisms, but for “hard criteria” that would exclude countries, which are under sanctions of the Security Council by reason of human rights violations or terrorism. States in the General Assembly are reluctant to transfer such power to the Security Council, which determines whether countries are under sanctions or not. Since the permanent five members will be assumed never to be under sanctions as they have veto power, they also would never be barred by this provision. The sanctions provision was thus politically unattainable, but it was in fact also rather ineffective as a way of improving membership, as there are only two countries under sanctions for human rights-related reasons—Sudan and Cote d’Ivoire—and thus only two countries would be excluded by the U.S.-favored provision. Election of these countries under the procedures in the current text can still be discouraged.

It requires a single majority to get elected, but two-thirds majority to be suspended. Does that make it easier to get on the council than to be expelled?

Actually, election to the council will now require the high threshold of an affirmative vote of an absolute majority of the 191 members of the United Nations—that is, 96 votes—enabling human rights supporters to block the election of states that severely violate human rights. Council members must pledge to uphold the highest human rights standards and subject themselves to review of their human rights record during their term on the council. Removing a member during its term of office is an extraordinary step and generally requires a higher threshold in most organizations, but as abstentions do not count, it might take fewer votes to suspend than the 96 votes required to elect.

Asian and African states could form a majority with 26 votes, whereas the rest of the countries have cumulative 21 votes. Would that be a concern when electing or expelling a member ?

The geographic distribution of the new council reflects the geographic distribution of the world and is a fact of international life. The challenge is to encourage the election of Asian and African states, which are truly leaders on human rights in their respective regions.

The new council does not permit re-election after serving two consecutive three-year terms and thus prevents states from holding a permanent seat. Is that one of the reasons why the United States opposed this text?

It clearly was. U.S. Ambassador John Bolton announced formal U.S. opposition to the proposed council on February 27, based on unspecified “deficiencies” in the draft. Asked at his press appearances on both February 27 and 28 to name any of those deficiencies, the ambassador finally identified only one at his second appearance - the term limits provision that would bar countries from serving more than six years out of seven. “One problem we had is the provision in there for term limits,” Bolton said. “My concern now, given the term limits, is that America will go off, and that will be to the detriment” of the council.

Why did Cuba and Iran initially oppose the text?

Cuba stated that the Human Rights Council was being created “ by imperialistic interests…and Washington hawks' plans to rule the world” and so harshly condemned the resolution in a speech in the General Assembly minutes before the vote. It is then odd that Cuba voted “yes”. Iran was one of only three countries, which abstained. More practically, Cuba no doubt seeks to shield itself from criticism of its abysmal human rights record in a more effective human rights body and Iran probably has similar concerns.

Will the meeting schedule of the Human Rights Council be an improvement?

Yes. A council, which meets regularly throughout the year, will be by itself a substantial improvement. The commission meets just for six weeks a year in Geneva and turns into shouting match. Countries make promises and do not keep them, because there is no follow-up. When serious human rights situations arise, it might be as many as 11 months before there is another session to address the issue. The meeting schedule of the new council will allow for sustained attention to existing problems.

Which U.N. bodies will the council report to?

The council will make recommendations only to the General Assembly. But as a practical matter, there is no bar to the Security Council considering them even if it has not received a communication directly from the Human Rights Council.

Will the universal periodic review be an additional burden to the work of the council?

It is certainly a time-consuming process to do it right and we hope additional session time will be allocated for universal review. But it is also a huge opportunity to scrutinize the human rights records of even the most powerful countries. And, since diplomats from member states won’t have time to do it, professional staff will probably have to be engaged in the preparatory work, resulting in more objective analysis.

Will the council retain the country-specific resolutions?

Yes, the right to address human rights situations in a resolution directed to a specific country is reaffirmed. Peer review is no substitute at all for the country-specific resolution.

What will be the limitations of the Human Rights Council?

The new body will have the same inherent limitations of the old body because it is also an intergovernmental organization. This is an association of sovereign governments that have multiple issues with each other. Political, economic, security, migration, and trade relations are all matters that come into play. To expect countries to put all of these concerns aside and act as if they were objective judges of human rights would be setting expectations too high. At the same time, objective inputs have grown up particularly the information, offered by non-governmental organizations. In addition, special rapporteurs were able to conduct independent investigations and bring back the results to the commission. [Special rapporteurs are independent investigators appointed in their individual capacity to document human right violations around the world by collecting information and interviewing victims. The U.N. offers administrative support and pays expenses but does not pay their salaries]

When will the council start its work?

The current resolution calls for the members to be elected by the General Assembly on May 9 and the first meeting to convene on June 19, 2006. There will be a great deal of attention to that election. It will be important to select a good initial complement of members, who can work out the details behind the resolution and who can play an important role in shaping the initial rules and procedures.The commission, according to the resolution that was passed yesterday, will be abolished on June 16, 2006.

What will be the council’s priorities when it convenes in June 2006?

The council’s work in June partly depends on what is left over from the Human Rights Commission, which will meet next week. Hopefully the commission will renew the mandates of all special rapporteurs otherwise the council will have to do so. The council also needs to adopt its rules of procedure and begin work on designing the universal review procedure.

Lawrence Moss is the Special Counsel for U.N. Reform at Human Rights Watch.