Commentary and Newsletters

Anne Bayefsky

The Emperor Has No Clothes

Friday, December 23, 2005

It was hardly a surprise that the UN "reform" talks on abolishing the UN Human Rights Commission ended in failure this week. The majority of UN member states are not fully democratic. Despite all the nonsense about having shared values, they don't. Some violate human rights, enjoy it, and object to scrutiny. Others are prepared to accept the consequences of mistakes or occasional wrongs.

Secretary-General Kofi Annan's misrepresentation of the UN September "reform" Summit is now obvious. Annan's Director of Communications, Edward Mortimer responded on behalf of the Secretary-General to an editorial in EYEontheUN back in September. He claimed that: "The Secretary-General is accurate in saying that the Summit made "real progress" - ...on human rights (...agreement on the need for a new Human Rights Council, even without the details of how that Council will operate)." Post-Summit he said: "...negotiations should resume on the basis of the detailed language developed in the lead-up to the Summit, which enjoyed the support of the overwhelming majority of Member States."

The Summit document stated only: "We resolve to create a Human Rights Council." The overwhelming majority agreed on nothing else. The next two and a half months were spent going from bad to worse. The "new" Council was headed for a pale imitation of its infamous predecessor.

The last draft on the table, released on December 19th, has all kinds of outrageous provisions, some bracketed meaning not yet agreed, others unbracketed suggesting some provisional agreement. Here are some of the items raising alarm bells:

  • A provision requiring that any resolution critical of a specific state's human rights situation be adopted by "two-thirds of the members present and voting," not the current simple majority; the effect would very likely be that the only resolutions to be adopted would be those condemning Israel.
  • The first provision creating the Council begins not with human rights, but with "achieving international cooperation," a euphemism for inhibiting country-specific scrutiny.
  • All human rights, according to the draft, "must be treated, in a fair and equal manner, on the same footing and with the same emphasis;" this is verbiage attempting to delay protection of democratic rights and civil liberties until all kinds of claims packaged in rights-language are satisfied.
  • A provision touting "objectivity, non-selectivity...avoidance of double-standards and politicization;" these are all code words for denying the legitimacy of naming particular human rights violators.
  • A provision which insists on full implementation and follow-up of "all United Nations conferences and summits;" this is a blatant attempt to raise the status of non-binding outcomes of UN meetings, including those outcomes with which the United States specifically disagrees (such as the outcome of the Durban Racism Conference.)
  • A new provision for peer review, or a mechanism designed to have states examine each other's human rights records that would culminate in a Chair's summary of "the conclusions of the review;" the clearest evidence of the inability of states to supervise each other's human rights records comes from the human rights treaties which allow states to complain of each other's non-compliance; in 30 years of the existence of such inter-state complaint mechanisms the UN human rights treaty system has never registered a single complaint.
  • So far there is not one democratic or human rights-respecting pre-requisite for membership on the Council; the only "criteria" still on the table in square brackets is the idea that states subject to UN Charter concerns voiced in the Security Council would not be eligible for membership. Even if adopted, this amounts to no more than a handful of countries.
  • On the table is a provision that members could not serve more than two consecutive terms, with the obvious result that the United States (paying 22% of the costs) would soon lose its seat on the Council.
  • The frequency of the meeting time remains undetermined, with some suggestions in the draft that special meetings could be convened by one-third of the membership. Since the 1950's emergency meetings of the General Assembly have resulted in 10 special sessions, six of which have been about Israel, none, for instance, on Sudan.

In mid-January the negotiations on creating a Human Rights Council will resume. The effort to abolish the discredited UN Human Rights Commission has been turned into a matter of damage control. The only questions remaining are these. Will a new Council manage to hold on to any good features of the Commission? What steps backward will be extracted as the price of maintaining any of the status quo? What crumbs will be thrown to western governments in order to allow a public-relations story about a "new" Human Rights Council?

And the most important question of all. What will the U.S. Administration and Congress do if the Commission is not abolished or in its stead comes an Emperor with no clothes?