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Think Again: The UN Human Rights Council

- November 4, 2009

Henry Farrell and Eric Posner have been sparring over international law and the role of the UN Human Rights Council in a number of posts at Crooked Timber and the Volokh Conspiracy. Some of these posts were about two articles I wrote with Jim Lebovic about the Council’s predecessor: the UN Commission on Human Rights (UNCHR). I have no desire to directly chime in on the debate between Eric and Henry but I did want to provide some clarification on the role of the Council. The institution has been in the news a lot lately, especially over the Goldstone report (on alleged war crimes and crimes against humanity committed by Israel and Hamas in the Gaza war). Yet, there are a lot of misconceptions about it, both among the “pro” and “against” crowd. I’ll clarify some of those below the fold.

1. The UNCHR does not just adopt resolutions targeted at Israel. In the 1970s and early 1980s, Israel, Chile and South Africa were pretty much its only targets. In the 1991–2001period, public resolutions were passed denouncing abuses committed by 24 different countries. Another 38 countries had their records discussed in confidential meetings. Our research shows that these countries were by and large severe human rights abusers. Moreover, the United States was most often on the winning side in these resolutions. The Human Rights Council has some different procedures so it is hard to compare (countries go through periodic reviews). Yet even a quick glance at its proceedings should make clear that severe abusers such as Myanmar (Burma) and Sudan are not ignored.

2. The UNCHR is biased against Israel. If bias means that a state gets more attention than its human rights record deserves, then the preceding statement is unequivocally true. In every year that I have looked at, the UNCHR adopted many more resolutions against Israel than against any other state. Looking at who votes for finding violations is instructive. On most resolutions, countries that have better human rights records are more likely to vote in favor of finding an abuse. This correlation is often reversed on resolutions concerning Israel. This doesn’t mean that Israel doesn’t commit human rights abuses or even war crimes that warrant the attention of the international community. Yet, the attention paid to those alleged abuses relative to those committed by others is disproportional.

3. Being a member of the UNCHR does not mean that you escape scrutiny. The UNCHR and the Council are often criticized because they contain states that have exhibited little respect for human rights 9e.g. Libya being the chairman in 2003). Yet, members are often scrutinized for their records. In our research, we found 40 instances between 1991-2001 in which one of the 53 UNCHR members had a resolution adopted against it. Of course, having Libya serve as a chairman was an absolute public relations/legitimacy disaster for the UN. The 2005 “High Level Panel” therefore proposed to just have the General Assembly as a whole take up these resolutions. Kofi Annan disagreed (it was the only part of the report he did not endorse). He wanted membership to come with accountability. So, the HR council requires its members to go through a periodic review of their own human rights. I have not followed the Council closely but my sense is that the reform has so far not had the desired effect. The only country that may have been deterred by this was the United States. The fact that the world’s worst human rights violators still want to be members of the Council shows a disregard for the potential consequences of shame that may well have cheapened the effect of resolutions.

4. The UNCHR and Human Rights Council are not legal institutions. You do not organize a legal institution by letting states decide by majority vote who does and who does not deserve to be shamed for human rights abuses. This is a political process in which political factors play a major role. Countries that are shamed tend to be both violators and politically vulnerable in multilateral settings (i.e. not that powerful and/or lack the right alliances). Countries like China, Pakistan, and Saudi Arabia almost always escape shame.

5. These institutions contribute to the selective enforcement of human rights abuses. The international system isn’t fair. Some states can get away with things that others cannot. To some states being a human rights abuser carries material consequences. To others it does not noticeably matter. For example, there is a long literature that finds weak or nonexistent direct relationships between aid and human rights. The reason is that there are often strategic reasons to continue aid regardless of human rights. Multilaterally you can only punish states when the multilateral governing body allows that. Jim and I suggest that UNCHR resolutions signal that it is ok for multilateral organizations to reduce aid to a country and find statistical support for that. (Maybe these resolutions don’t have a true causal effect but they efficiently combine information about violations and political vulnerability). Selective enforcement is not no enforcement. But it also isn’t the impartial enforcement that legal scholars envision. The key thing about this is that it is reasonably predictable who is and who is not able to escape international scrutiny. Some states are simply too nuclear, big, or strategically important to sanction. To other states, however, there are real cost to shame.