UNITED NATIONS: ‘The existing human rights system must be criticised, while still being defended’

CIVICUS speaks with Brian Schapira, Director of Institutional Relations at the Center for Latin America´s Opening and Development (Centro para la Apertura y el Desarrollo de América Latina, CADAL), a foundation based in Argentina that works to defend and promote human rights. With a focus on supporting those who suffer severe restrictions to their civil and political liberties, CADAL promotes international democratic solidarity in collaboration with activists and civil society organisations (CSOs) around the world.

Brian Schapira

The United Nations Human Rights Council (UNHRC) often counts serial human rights violators among its members. Why this inconsistency, and what are its consequences?

The UNHRC is an intergovernmental forum, allowing from the outset for the possibility that not all of its members will have a good human rights record, and that some even violate human rights severely. The Council is composed of 47 states elected by the UN General Assembly, with a certain number of seats reserved for each region. Given that most UN countries are not democracies, and that in several regions the vast majority are autocracies or dictatorships, there end up being many states with very poor human rights records on the UNHRC. Added to this is the fact that the foreign policies of many dictatorial governments prioritise membership of the Council for propaganda purposes, in order to proclaim domestically their respect for human rights.

The membership of these states represents an outrageous contradiction. UN General Assembly Resolution 60/251, which established the UNHRC and regulates its composition and functioning, states, firstly, that “when electing members of the Council, Member States shall take into account the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments made thereto;” and, secondly, that its members “shall uphold the highest standards in the promotion and protection of human rights.”

Resolution 60/251 also formally establishes a mechanism by which a two-thirds vote of the UNHRC can suspend a state that commits “gross and systematic violations of human rights.” Unfortunately, as a body composed of states, interests end up predominating over values, and in practice only once has a country been suspended from the UNHRC: Libya, in 2011.

The composition of the UNHRC can be an obstacle to the full performance of its functions. The problem of politicisation is a legacy of the UNHRC’s predecessor body, the Commission on Human Rights, and was one of the reasons why the former Commission was replaced by the current Council. But not much progress has been made in this regard. There are still very serious situations that are not even dealt with by the UNHRC and other situations that receive disproportionate attention in terms of the number of resolutions passed or even by standing as permanent agenda items.

Is there any mechanism that could be established to ensure that the UNHRC maintains a certain standard in terms of the human rights record of its members?

The only existing mechanism, that of suspension from the UNHRC as provided for in Resolution 60, is clearly inoperative: it has only been used once, and if it is used again it will only happen when the interests of various countries align in the face of an exceptionally serious situation. Civil society has proposed that this mechanism be reviewed and replaced with a more effective one, but this seems to me extremely unlikely to happen.

However, other measures could help. Firstly, states’ votes in the UNHRC should be public. I would love to see how democratic governments that decide to vote for dictatorships in the UNHRC election face their own domestic public opinion. Publicity would also mean transparency, so we would know who votes for whom and governments will have to take responsibility for what they vote for.

A condition could also be established that any country wishing to join the UNHRC must extend an open invitation to the Special Procedures office-holders to visit the country. An automatic sanction of suspension could also be introduced for any UNHRC member state that, after receiving a certain number of requests for visits from Special Procedures representatives, continues to ignore or refuse them. As an objective ground for non-compliance, this would be simple to apply and would not require debate in the UNHRC.

Additionally, states wishing to join the UNHRC could be required to have ratified all nine major treaties monitored by treaty bodies. Perhaps this would be too ambitious – although I am aware that all of the above is ambitious as well – because it would also exclude from membership of the UNHRC some democracies that have not ratified all of these treaties.

There are many proposals out there, but any real change will depend on the decision of states. That is precisely why it is important to shine a light on these problems and bring them into public debate so that societies themselves, or at least the most committed and informed segments of the population within open societies, put pressure on their governments to make progress. I think that those of us who have suffered dictatorships and now live in democracies have a moral imperative to stand in solidarity with those who still experience oppression and to raise our voices for those who cannot. We must pressure our governments to put in practice the principle of international democratic solidarity, as coined by the late Czech leader Václav Havel.

The UNHRC is a key forum for civil society. Is there anything civil society can do about member governments’ commitment to human rights?

Realistically, we must assume that in international relations human rights are just one more issue, and not the most important one, within a complex web of geopolitical, strategic and economic interests. Even states that are advanced democracies make decisions based on their interests rather than their values. In this context, the challenge for civil society is to make human rights as important as possible and to turn them into an important criterion for decision-making by democratic states.

As civil society, we must exert a strong influence on states with high standards of democracy and respect for human rights, so that they exercise as much committed diplomacy as possible on this issue, be it in the context of the elections to the UNHRC, which renews by thirds every year, in discussion of resolutions on country situations within the UNHRC, in the context of the Universal Periodic Review, or possibly when it comes to suspending a country's membership of the UNHRC.

Because of the geographical distribution of seats, and due to the alliances woven within the UN, where many countries turn a blind eye, apply double standards or protect each other, it is difficult to prevent dictatorships from joining the UNHRC or suspend them when they commit serious violations. But working on the engagement of democratic countries can help make these situations visible and put pressure on countries with the worst human rights records. Democratic states could make public their opposition to certain candidacies. They could also abstain from voting and call on other countries to do so, if all countries standing for members from a specific region are disrespectful of human rights. This public shaming may bring some relief to those who suffer domestically from abuses and may help bring about some change; in the best-case scenario, it could help wear down and eventually topple dictatorial regimes.

Civil society can take advantage of the visibility brought by membership of the UNHRC to blame, shame and give visibility to the violations committed by its members, exposing their contradictions. And we can do this both when they submit their candidacy and once they join the body. We can make our questioning public by demanding that they comply with Resolution 60 and honour the voluntary commitments they made when they became candidates, respect the treaties they signed, accede to the treaties to which they are not yet a party, grant an open invitation to all UN Special Procedures office-holders, accept Rapporteurs’ requests for visits, establish real mechanisms for complying with recommendations and collaborate with the human rights protection system.

A great instrument we have to push countries to comply with human rights standards are the Special Procedures, the office-holders of which are elected by the UNHRC but are made up of independent experts. Despite their debatable and improvable aspects, these procedures constitute the most virtuous side of the universal protection system – its ‘crown jewel’, in the words of former Secretary-General Kofi Annan. It is there that we as civil society tend to find the most receptive conditions to our claims and complaints. To preserve this space, we must also be very vigilant that the interests of the less democratic states within the UNHRC do not interfere with the election and functioning of the Special Procedures. Indeed, there is currently great concern regarding China's advances within these spaces, which could weaken these independent mechanisms.

Ahead of the 2020 election of a new cohort of UNHRC members, CADAL drew attention to the election or re-election of several authoritarian states. How did you go about it?

In the months leading up to the UNHRC election, CADAL drew attention to the nomination of several autocracies. Based on our capacity, we decided to focus on a few cases, and concentrated on the candidacies of China, Cuba, Russia and Saudi Arabia, publishing research papers in which we analysed each of these states’ performance and commitment to the universal protection system. We show the recommendations made to them by various mechanisms, their lack of commitment to the system and the way in which they have voted following UNHRC debates.

Given our Latin American focus, we specifically focused on the case of Cuba, which has held a seat on the UNHRC for 12 years since 2006, when the body was established. Cuba stands out for being a long-standing dictatorship – the regime established by Fidel Castro has been in power for 62 years now – in a continent which, at least formally, is largely democratic, and for the fact that its regime elicits abundant reactions of sympathy and even vindication, including by important Latin American CSOs. This would merit further analysis, but I view this as a regrettable contradiction that is, at best, the product of ideological blindness, and at worst, a reflection of gross hypocrisy.

This is why we undertook advocacy and organised public activities on the issue. We prepared two research reports: one on Cuba's relationship with the universal protection system, and another on its voting record in the UNHRC. The latter shows that Cuba has consistently supported dictatorial regimes of various colours around the world, from Iran’s theocracy to Lukashenko’s autocracy in Belarus and Maduro’s dictatorship in Venezuela, to the illiberal and authoritarian governments of Duterte in the Philippines and Ortega in Nicaragua. It has systematically denied humanitarian crises such as those in Myanmar and Syria and has rejected any kind of condemnation or action, such as the creation of country mandates or commissions of enquiry, in the face of the most serious human rights violations in the world.

On the basis of these reports we organised public debates, made press releases and sent communications out to the embassies of democratic states asking them to increase scrutiny and pressure on Cuba. In the context of the pandemic, we reached out via Zoom to other countries and to different types of audiences, something we had not anticipated.

It was always clear to us that Cuba would be elected, both because of the priority it gives to its membership of the UNHRC and because of the support it enjoys among the still-existing group of non-aligned countries. Moreover, the Latin American and Caribbean Group was filling three seats and there were only three candidates: Bolivia, Cuba and Mexico. We used this opportunity to highlight human rights violations and to blame and shame the Cuban dictatorship. Incidentally, we were also critical of Bolivia’s candidacy for having been presented by the interim and highly questioned government led by Jeanine Añez.

Once Cuba was elected to the UNHRC, we gathered the support of numerous international, regional, national and even local CSOs, and sent a request to the UN High Commissioner for Human Rights that she demand that Cuba assume its commitments as a UNHRC member, comply with standards, ratify the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which it has been promising to do for 12 or 13 years, and to accept the visit of a series of Special Procedures office-holders who address issues of particular concern to us, such as the freedom of association, freedom of expression, cultural rights, arbitrary detentions and judicial independence, among others.

Do you think that, despite all of their shortcomings, action by UN human rights mechanisms can make a difference?

In the case of Cuba, the continued exposure of rights violations and the activation of all UN mechanisms can make the regime feel more observed, alleviate its abuses and improve the situation of defenders, democracy activists, journalists and artists who currently experience harassment and persecution.

We must not lose sight of the fact that, despite their shortcomings, these intergovernmental forums are of key importance. They are spaces where it is possible to raise issues, put pressure and do advocacy, and only a few decades ago these spaces did not exist. Before the UN was founded, the very concept of human rights had not yet consolidated, and therefore a body such as the UNHRC was not imaginable.

It is the serial human rights abusers who wish these forums did not exist, and indeed work tirelessly to weaken them. Those of us who defend human rights may criticise and expose their contradictions, but we won’t throw the baby out with the bathwater. I can think of no more damaging attitude than that of former President Trump giving up the US seat at the UNHRC on the pretext of very real problems such as dictatorships being members and the disproportionate attentions that some situations receive. That is why President Biden’s decision to rejoin the body immediately as an observer member and submit the USA’s candidacy for the next term is something to celebrate. In the face of authoritarian advances, the existing system must be criticised, while still being defended.

Get in touch with CADAL through its website or Facebook page, and follow @CADAL on Twitter.



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