The Human Rights Council - What have we gained by establishing a new body and what are the challenges?

As a diplomat having participated both in the former Human rights Commission and the Human Rights Council and served in New York at our mission to the UN for quite a few years, I will try to give you a brief overview of why it was decided to establish a new body to deal with human rights within the UN - what we have gained by this and what are the challenges.

I will also touch upon why Norway sought membership in the Council for the period 2009-2012 and what are our main priorities.

Why a new body?
Despite its role of creating an extensive framework of human rights mechanisms and instruments, the former Human Rights Commission, the predecessor of the Human Rights Council, was increasingly being criticised for being selective, politicised and operating with double standards when states were criticised for human rights violations.

Opponents of the UN in the West called the Human Rights Commission a platform for right abusers like Libya and Sudan, yet many in the developing world saw it as a mechanism for the West to bully poor countries. Western countries were accused of political interference with what countries in the south regarded as internal affairs, they claimed that the criticism most often was targeted at poor countries of the south.  The Commission of Human Rights had also earned the particular animosity of the Bush administration after the US was blocked from continued membership of the body in 2001, in part because of its opposition to the International Criminal Court. 

While the 1993 World conference on Human Rights in Vienna upheld the indivisibly of all human rights, many developing countries believe the UN, and developed countries, failed to deliver on the Plan of Action adopted in Vienna. In very simple terms, for most developing countries, the achievements of economic, social and cultural rights is a priority; and they claim that progress in achieving civil and political rights has to be assessed in relation to the former. The North-South analysis is of course disputed, including by some non-governmental organisations; some regard it as a political tactic. Following from this divide, much of the disagreement between members states about how the Council should function is due to a perceived dichotomy between dialogue” and confrontation” or naming and shaming” in particular through the adoption of country specific resolutions , when dealing with governments deemed responsible for human rights violations. Focusing on violations is perceived, by some, to be inherently confrontational; to be unsuccessful, since government cooperation, or at least acquiescence is required for sustained meaningful action; and it fails to capture the complexity of a situation. 

As a consequence of the increasing criticism and the UN’s need to restore its credibility in its work to protect and promote human rights, The Human Rights Council was launched in 2006 amid high hopes for the forum’s ability to advance universal human rights. The proposal for a new body was launched in the report of the Secretary-General Kofi Annan entitled “In larger freedom: towards development, security and human rights for all” prior to the 2005 World Summit. At the Summit the UN Member States reaffirmed the importance of human rights as one of the three principal goals of the United Nations, alongside development and security.

The goal of establishing a Human Rights Council was to reflect in concrete terms the increasing importance being placed on human rights. The upgrading of the Commission into a full-fledged Council would raise human rights to the priority accorded to it in the Charter of the UN. Such a structure would offer architectural clarity, since the United Nations already has a Council that deals with two other main purposes – security and development.  

After difficult negotiations for more than a year The Human Rights Council was created by the United Nations General Assembly in 2006 as the principal human rights political body of the UN. Most of the western countries including the USA wanted a replacement that excluded the worst rights abusers – but finding fair and effective criteria proved difficult, rousing the suspicions of developing countries. The problem was also that most any criteria would also exclude the US. Some objected that excluding human rights abusers would only succeed in limiting the Councils influence over them.

The General Assembly decided that the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of human rights.

The General Assembly also decided that the Council should review and when necessary improve and rationalize all mandates mechanisms, functions and responsibilities of  the Commission on Human Rights  in order to maintain a system of special procedures, expert advise and complaint procedures and that the Council should complete this review within one year after holding the first session.

In June 2007 the Council, after difficult negotiations adopted and recommended to the General Assembly for adoption - the institutional package that to day forms the Council.

The divide that existed in the HRC between those countries that wanted to get rid of the finger pointing of human rights violations, the naming and shaming and wanted the new Council to work on basis of cooperation and dialogue – a new spirit – a new culture -and the traditionally countries that defend human rights prevailed in the negotiations of the institutional package.

Countries that always have rejected a strong international monitoring system saw their chance of weakening some of the procedures what we thought had worked well in the Commission, especially the system of special procedures.

The Commission had a system of approximately 40 special rapporteurs, both thematic like the special rapporteur to on the fight against torture, the special rapporteur on involuntary disappearances; and specific country rapporteurs to report on the human rights situation in a specific country. Let me underline the importance of the work of the special procedures. They are often a last resort for victims, but they can also serve as an early-warning mechanism to draw attention to human rights abuses. They are connecting the Council to the reality on the ground. A priority for Norway and other likeminded countries during the negotiations was to preserve their independence and integrity while a majority from the south wanted more control of their activities.

So what did we achieve by establishing a new body
First let me mention the following: The Commission of Human Rights was composed by 53 elected Members States of which 10 were allocated to the western countries. The Council is composed by 47 elected Member States. 7 of the seats are allocated to the western countries while Afrika and Asia were allocated 13 seats each. It was inevitable that the composition of the Council would be updated to reflect overall changes in the UN membership. The reallocation of seats saw therefore a significant shift towards the African and Asian groups that has effectively given the western countries opponents a structural majority. Thus the Western countries have lost its structural influence and are in minority.  To win a majority vote in the Council we are dependent on support from African and Asian countries.

On the positive side the Human Rights Council has a higher status than the Commission by reporting directly to the General Assembly. The former Commission reported to the UN’s Economic and Social Council.

The Human Rights Council meets more frequently – minimum 10 weeks a year, as compared to the former Human Rights Commission that only had one session yearly meeting for 6 six weeks. Thus the Council is made more relevant and more adapt to deal with human rights violations as they occur.

A key component of the Council was the creation of a new mechanism - the Universal Periodic Review. Under this mechanism the human rights performance of all 192 member states will be routinely examined, responding to the criticism that the CHR had used double standards in targeting specific countries only.  

Many of the developing countries meant that this new mechanism should replace resolutions where we focus on and express concern about human rights violations in a specific country, so called country resolutions. Norway and other human rights defender countries on the other hand have always underlined that the Universal Review is complementary and should not replace country specific resolutions when this is warranted. That is why is was so important for us to make sure that within the Council’s mandate we can also address situations of violations of human rights where ever they occur when dealing with other agenda items than the UPR in the Council.

The UPR is a state driven cooperative process– it is not a tribunal. It is based on interactive dialogue with the full involvement of the country concerned. There is to be consideration given to each country’s capacity-building needs, there is broad agreement that the UN organs could be more responsive to countries that are trying to fulfil human rights obligations, but may have genuine resource or other constraints. We were at the time of creating this new mechanism disappointed of its outcome and would have like to see a stronger mechanism that was less state driven.

After more than a year in operation, the Universal Periodic Review (UPR) mechanism has however proven itself to be a very useful tool.  Through the UPR, all UN Member States is reviewed on the basis of universal and equal parameters and standards. Issues can be raised in the UPR that are difficult to deal with otherwise.

The UPR has been criticized for being too vague and overly diplomatic. We will however do our utmost to make it an effective tool for increased cooperation on the fulfilment of all human rights.

However, the UPR has already shown that it promotes several processes in the country under review. All countries that have presented reports to the UPR have had some kind of consultation with civil society in their respective countries. The Office of the High Commissioner for Human Rights reports that they see direct effects of the UPR in the sense that more states have issued open invitation to special procedures and that there is an increase in ratifications of human rights treaties. In addition, outstanding reports to treaty bodies are being submitted.

This is human rights education in practise for those states which are under scrutiny. UPR promotes unification with recommendations from treaty bodies, which are used by organisations and human rights defenders in their continuous work to give these recommendations value. Furthermore, the UPR documents and reports provide a unique view on the UN human rights situation in the country, from the point of view of different stakeholders.

UPR will itself evolve, and its functioning is due to be examined following the first four-year cycle of work.

There are also other agenda items in the Human Rights Council where we can raise our concerns about human rights violations. The special procedures for instance, give us a good opportunity for bringing up our concerns.

Another new feature with the Council is the frequent use of special sessions. Since July 2006 we have had 11 special sessions of which four are about the Middle East.  The HRC has been criticized for having had to much focus on the Middle East situation and as a consequence too little focus on other serious human rights violations. The only geographical conflict that figures as a permanent item on the agenda of the Council is the human rights situation in Palestine and other occupied Arab territories.  Why is that? Since the Arab countries know they will be met by a veto in the UN Security Council, they are using the HRC as an arena for focusing on this conflict. To get a deal on the institutional package it was unavoidable to accept that this conflict is dealt with at every ordinary session.

What are our challenges?
The international climate is demanding and the challenges for the Council are numerous:

On the basis of universal standard setting and universal monitoring of States compliance with their human rights obligations we know what the human rights are, we know the obligations of States and other duty-bearers to respect protect and fulfil these human rights, and we know that these human rights are systematically violated and disregarded in all regions of the world. The gap between high aspirations of human rights and its sobering realities on the ground, between human rights law and its implementation, between the lofty rhetoric of governments and their lack of political will to keep their promises is the major problem.  Bridging this gap or at least significantly narrow this implementation gap which clearly undermines the validity and legitimacy of the legally binding universal human rights framework is the major challenge of our time. 

Working with human rights is sensitive and politically controversial. The UN reflects the political realities that exist in the world. The UN and the Human Rights Council are political bodies and they are not bodies of likeminded countries. A serious gap still separates the vision of the UN’s founders from the institution of to day. The UN is imperfect but it is also indispensable. There can be no substitute for the legitimacy the UN can impart or its potential to mobilize the widest possible coalitions.

There are of course cultural and ideological reasons for viewing human rights different. The work with human rights is marked by a polarization between regional groups. The polarization is now more pronounced than it seemed to be earlier. Increasingly we have had to fight anew for principles we thought were firmly established – like for instance the absolute prohibition of torture and attacks on the right of freedom of expression.

The global balance of power has changed. Countries such as China, India and Russia have increased their power and influence. The fight against terrorism that arose out of the smoke of September 11 has weakened the leadership of Western countries in the field of human rights. Not just because they are in a political minority, but also because the pictures from Guantanamo Bay in Cuba and Abu Ghraib in Iraq are eating away at our ability to show leadership.

Regional blocks around the UN is structured, they themselves tend to provoke counter-reactions, particularly when country situations are under consideration. Group solidarity has become stronger. A country’s position on a certain issue is often decided out of solidarity to its regional group. The organization of Islamic Countries (OIC) has gained power and influence. A negotiation often take place between spoke persons of regional blocks, and is often the most radical countries within a group that sets the tone of the groups position. This makes it more difficult to win over more moderate countries and what we called “swing voters”.

The impression has arisen that it is a case of “the West against the rest” and “the West against Islam”. Religion has gained importance as an indicator of difference.

Why did Norway seek membership in the Council?
Firstly, Norway is committed to respecting human rights through a number of international agreements.

Secondly, respect for human rights is one of the key values underpinning Norwegian society.

Thirdly, human rights are an important foreign policy interest. In the long term, a stable international legal order – which is in Norway’s interests – can only be developed by countries that respect fundamental human rights. There are clear links between respect for the individual, efforts to promote peace, and a just world order.

There is one question that is often raised. Should Norway speak out strongly and clearly – either alone or together with other like-minded countries? Or is it better to build alliances and enter into dialogue?

These are not questions that can be answered with a simple yes or no. The answer will vary. Our aim is to ensure that individuals are better protected against abuse and have better access to the rights set out in existing standards and conventions in the field of human rights.  

The choice of foreign policy tool should be based on the nature of the human rights violation and an assessment of what would be most effective in the concrete situation.

We must keep our focus on our goal. In some cases, loud protests can be counterproductive. They can shut down channels of communication and put lives in danger.

We will not make headway if we just shout out our ideas, while condemning others’ viewpoints. A naming and shaming exercise is not always the best way of achieving the results we are seeking.

In our meetings with people who have a different background and different experiences to our own, we need to listen – and to listen carefully. And we need to take the time to try to understand. This will improve our chances of being heard. Norway appreciates that national conditions and capabilities differ. Dialogue should not however, preclude criticism when this is required. We will use our voice in the Council to to draw attention to serious human rights violations when suppressing regimes are unwilling to show signs of cooperation or unwilling to seek improvements.

The UN is neither more nor less than what its members make it. Norway works for change from within rather than criticizing from the sidelines. It is our responsibility to raise our voice. Keeping silent is no solution. Silence can soon become tantamount to surrender.

At the Durban Review Conference, that took place between 20 and 24 April 2009, to review steps taken to combat racism and discrimination since the World Conference against Racism held in Durban in 2001, my government was criticised for its decision not to withdraw from the preparation of the conference and the conference itself. In his speech at the Conference the Norwegian Minister of Foreign Affairs stated that “I decided to attend this conference to convey Norway’s views. We who have made a point of defending freedom of expression cannot opt for non-attendance as a strategy, leaving the floor to precisely those who hold opposite views. We will not surrender the floor of the United Nations to the extremists”.

There is an urgent need to build bridges among regional groups and create confidence more broadly among member states of the UN.

Let me shed some lights how my country has put this into practice. For a number of years, Norway has been responsible for presenting a draft resolution on efforts to protect human rights defenders all over the world. This is an important resolution, which addresses matters of life and death for activists worldwide.

During the negotiations on the most recent resolution on human rights defenders, we chose not to take the traditional approach, namely, first to ensure that we had the support of those closest to us, that is to say like-minded countries. Instead, we took the following three steps:

Firstly, we held broad consultations with all countries. We had open lines of communication with everyone; including those countries that we knew from experience could create the greatest problems. By establishing a good dialogue with these countries, we avoided deadlock.

Secondly, we carefully selected our strategic cooperation partners. We chose countries from the various regions, in order to ensure that we had a base in all these regions and that they felt a sense of ownership of the ideas we were espousing.

And thirdly, we entered into strategic cooperation with civil society organizations, in a process where they suggested possible compromises on an ongoing basis, and helped us identify areas where there was room for manoeuvre.

The resolution on renewing the mandate of the UN’s Special Rapporteur on freedom of expression – a resolution that has been much discussed – suffered a different fate. The Special Rapporteur was instructed to report on so-called “misuse of freedom of expression”.

The country leading this process decided to take the traditional approach: to negotiate a forceful text, in a closed circle of like-minded countries and then present this in plenary.

But this approach is not that easy when the traditional group of like-minded countries is in the minority. Strong objections from countries that felt excluded from the process led to amendments that should never have been adopted.

Norway withdrew as co-sponsor of the resolution. If we had been a member of the Human Rights Council, we would have voted against it. In our view, the change in the mandate conflicts with established principles.

What is Norway doing now to prevent further setbacks for the UN regarding freedom of expression?

Together with the Latin American countries, we worked hard to ensure the appointment of a Special Rapporteur who has great expertise and integrity.

Now, our focus will be on the Human Rights Council’s next discussion of the resolution on freedom of expression. Here we must do everything in our power – with wisdom and resolve – to prevent a repetition of last year’s process. One important lesson learned is that we cannot afford to become set in a single way of working, with just one group of cooperation partners.

In our efforts to promote human rights – both in the UN and in all other arenas – we must seek to create new room for manoeuvre. To find new partners in addition to our traditional partners. To look for dialogue processes that can help us to understand how others think. To win support for our positions in a context where others are willing to listen.

Freedom of expression is a crucial value to fight for in our time. Without this freedom, our efforts to promote human rights will be virtually impossible. It is key to ensuring that democracies function with all their diversity. And it is key to safeguarding diversity in our increasingly multicultural, multifaceted societies. This is why we need more freedom of expression, not less.

But freedom of expression must be defended in a context where there are also other fundamental rights. Our view is that freedom of expression cannot and must not be limited. But there is such a thing as showing consideration – and this too is a value of great importance in our closely interconnected world.

What are our priorities?
Firstly, we want to secure the effective work of the Council, bridging the gap between the North and the South, the east and the West.

I have already mentioned freedom of expression and freedom of assembly as Norwegian top priorities. So are our continued leadership in protecting human rights defenders and our leadership of promoting corporate social responsibility.

With regard especially to civil and political rights, my Government has given priority to the fight against the death penalty, the fight against torture, freedom of expression, the right of the child and gender-issues, including equality before the law,  protection of special vulnerable groups and  the protection of internally placed persons.

New Zealand recently raised the issue of maternal health in the Council and Norway is a member of the core group.

The promotion of human rights is at the core of the UN mandate. It is a prerequisite for success in advancing peace and development. This is a job that the UN – our only universal organisation – is well placed to do, and we must ensure that it does so successfully.

The UN’s ability to deliver on this promise is crucial. It is crucial for its legitimacy. It is crucial for our ability to realise the other aspects of the UN mandate: freedom from fear and freedom from want.