The return of great power politics to the Human Rights Council

Myint Thu, ambassador of the Permanent Representative Mission of Myanmar to Geneva, listens to Thomas Andrews, UN Special Rapporteur on the human rights situation in Myanmar, during the Human Rights Council special session on the human rights implications of the crisis in Myanmar at the United Nations in Geneva, February 12, 2021. (Keystone / Salvatore Di Nolfi)

The 46th session of the Human Rights Council, which wrapped up last week, saw the proper return of the US delegation, following America’s withdrawal under President Trump. It was expected that this important development would provide a jolt to the UN’s apex human rights body, even if the Council had functioned relatively well in America’s absence. Yet many diplomats and observers were still taken aback at the extent of the reaction provoked by the US rapprochement, especially on the part of its geopolitical rivals, China and Russia.

These States, together with their friends in the so-called Like-Minded Group (LMG) of countries (e.g., Belarus, Cuba, Pakistan, Venezuela), used HRC46 to send out a clear and unambiguous message to the US and its allies: that they would staunchly resist a return to the status quo ante that existed at the Council during the Obama years – when the US largely dominated the body’s agenda and output.

They did so by encouraging as many states as possible to either make statements themselves, or sponsor joint statements, putting forward two central (and, it should be said, contradictory) arguments. First, supporters of China and Russia contended that the Council, and the wider UN, have no authority to pass public judgement on human rights abuses inside UN member States, as this violates those states’ sovereignty and thus represents ‘foreign interference.’ Second, LMG states condemned human rights abuses committed by EU member states, the UK and Australia (i.e., US allies), and argued, in short, that Western countries ‘should not throw stones in glass houses’ – i.e., they should not criticise others when their own human rights records are less than stellar.

Towards the end of the session, the US rebutted these claims, making clear that reference to the UN Charter and the founding mandate of the Council render China’s and Russia’s claims over sovereignty and ‘non-interference’ redundant. On the contrary, seeking accountability for human rights violations is a central goal of the UN system, the US said, concluding  that while it is true that no country has a perfect human rights record, what differentiates states is their willingness to openly recognise those shortfalls and commit to remedying them.

Much of this diplomatic posturing and signalling played out during the general debate under item 4 of the Council’s agenda (country situations). The debate saw two major joint statements, with significant political support, delivered by Cuba and Belarus, as well as a large number of individual state interventions defending fellow LMG members and/or attacking Western states.

The aim of the two item 4 joint statements, the individual items (e.g., one by China attacking Australia), as well as related joint statements under other agenda items (another by Belarus under agenda item 3, defending Chinese actions in Hong Kong), was two-fold.

First, they aimed to secure the backing of as many UN members as possible behind the argument that it is not legitimate (i.e., it is contrary to the UN Charter) for the Council to criticise or otherwise pass comment on the internal affairs (i.e., the promotion and protection of human rights) of sovereign states. Second, they sought to make the case that Council members and observers that do pass judgement on the internal affairs of others (especially developing countries) are hypocrites – because they themselves routinely violate human rights.

Cuba’s statement, delivered on behalf of 64 countries, began by expressing strong opposition to the “politicisation of human rights and double standards.” It then went on to “commend the people-centred philosophy that the Chinese government pursues and achievements that have been made in its human rights cause.” On the issue of alleged human rights abuses in Xinjiang, in particular against the country’s Muslim Uyghur minority, Cuba urged Western states “to abide by the purposes and principles of the United Nations Charter, stop interfering in China’s internal affairs by manipulating Xinjiang related issues, refrain from making unfounded allegations against China out of political motivations, and curbing the development of developing countries under the pretext of human rights.”

Belarus’ statement, “delivered on behalf of a group of countries, including Iran, Burundi, China, DPRK, Nicaragua, Russia, Syria, Sri Lanka and Venezuela,” expressed concern about the “situation of human rights in EU member States and the United Kingdom.” The statement’s sponsors expressed particular concerned about “credible reports of systemic human rights violations, particularly those involving hate speech and crimes, glorification of Nazism, racial and ethnic discrimination, violation of rights of migrants, refugees and non-accompanied children and indigenous peoples, child sexual abuse, shrinking space for civil society, restrictions on peaceful assembly and associations, freedom of expression, [and] excessive use of force against demonstrators.” The sponsors also pointed to allegations of human rights violations during the ongoing Covid-19 pandemic.

Bizarrely, Russia (no standing invitation, 11 out of 21 visits completed), China (no standing invitation, nine out of 27 visits completed), Venezuela (no standing invitation, two out of 16 visits completed), and the other statement sponsors, then went on to criticise Western European states (which have generally excellent records of cooperation with special rapporteurs), for failing to “fulfil their commitment” to extend standing invitations to Special Procedures (in fact, all seven current Western Europe and Others Group (WEOG) members of the Council have extended standing invitations), and of “not accepting visits for years,” (Western members of the Council have a 75 per cent visit completion rate).

The US responds. While this show of strength from the LMG certainly succeeded in sending a clear message to Western and other democracies, if the goal of China, Russia and other LMG States was to prevent or dissuade the US from using the Council as a platform to call out and criticise serious human rights violations, or to shame American diplomats into silence (on the grounds that human rights violations also occur in the US), they will have been disappointed when, on 18 March, under agenda item 8, the US delivered a counter statement on behalf of 50 States, which rejected and rebutted the arguments put forward in the Cuban and Belarussian interventions.

“We have heard a great deal,” the statement began, “during the current session, about the importance of non-interference in domestic affairs. In response to these points, we have a very simple position: states that commit human rights violations must be held to account.”

“The UN Charter acknowledges the domestic jurisdiction of member states. But it also affirms that human rights are universal,” the US added. “Appeals to ‘state sovereignty cannot be used to shield a country from scrutiny for its behaviour toward those within its borders. Indeed, this notion lies at the very foundations of the UN, the Universal Declaration of Human Rights, and this very Council.  The Human Rights Council has the responsibility to act when States are not meeting their obligations – a responsibility articulated in General Assembly resolution 60/251.”

As if to reinforce this point, the US joined two important item 4 joint statements at the 46th session, one, led by Finland, on the human rights situation in Egypt (with 31 co-sponsors), and another, led by Poland, on the situation in Russia (with 44 co-sponsors).

Responding directly to the Belarusian joint statement, the US then acknowledged that “no country – including our own – can claim to have a perfect record on human rights. But we can and must strive to do better [...] Attempts by states to deflect criticism by blaming others do not diminish their responsibility to protect their own populations.”

Pushback against human rights sanctions. On top of the numerous statements calling for an end to ‘naming and shaming’ at the Council and (somewhat paradoxically) condemning the human rights situations in Western states, members of the LMG (and many other developing countries) also rallied around a draft resolution from the Non-Aligned Movement (NAM) criticising “unilateral coercive measures” (i.e., sanctions) and pointing to their negative impacts on the enjoyment of human rights.

What is clear is that the 46th session saw a surge of support for NAM’s draft resolution, which was eventually adopted by vote, with 30 in favour, 15 against, and two abstentions, and with 122 co-sponsors (a huge number). There were a large number of statements at HRC46 criticising Western sanctions regimes, while a ‘hostile amendment’ critical of sanctions, tabled by China to the draft resolution on the human rights situation in Belarus, came relatively close to being accepted by the Council (12-18-17).

Such high levels of political support for critiques of sanctions regimes suggest that, in the future, Western states will need to make the case that ‘Magnitsky-style’ sanctions are specifically designed to focus on the individual perpetrators of human rights violations, thereby avoiding the wider societal damage that can be wrought by State-wide sanctions.

Responding to the deteriorating human rights situations in Myanmar and Sri Lanka. Two country situations in particular dominated the Council’s attention during its 46th session: Myanmar following February’s coup d’etat, and Sri Lanka after the return to power of the Rajapaksa family. At the end of the session, resolutions on both situations (the former led by the EU and the latter by the UK) were adopted, by vote in the case of Sri Lanka (22-11-14) – the first time a vote has been called since 2014, and by consensus in the case of Myanmar (though many LMG States disassociated from the text).

Both texts contain important innovations for the Council. Regarding the Sri Lanka resolution, operative paragraph six (OP6) gives OHCHR important new accountability powers – similar to those invested in the Independent Investigative Mechanism for Myanmar (IIMM).  With OP6, the Council decided to “strengthen [...] the capacity of the Office of the High Commissioner to collect, consolidate, analyse and preserve information and evidence and to develop possible strategies for future accountability processes for gross violations of human rights or serious violations of international humanitarian law in Sri Lanka.”

Regarding Myanmar, the final resolution, although very long and unwieldy, nonetheless put forward an important new paragraph (OP53) that puts the high commissioner’s and the Council’s prevention powers into operation, as established last year by resolution 45/31 - in the context of an actual country situation. It states that the Council:

Calls upon the High Commissioner and the Special Rapporteur to monitor patterns of human rights violations that point to a heightened risk of a human rights emergency and to continue to bring that information to the attention of the Human Rights Council in a manner that reflects the urgency of the situation, including inter-sessionally through ad hoc briefings and to advise on what further steps may be needed if the situation continues to deteriorates, in furtherance of the Council’s prevention mandate, and to inform other United Nations bodies as necessary on progress in that regard.

This paragraph could set an important new precedent, and be used in other country-specific resolutions, potentially empowering the Council to respond quickly to early warning information about an impending human rights crisis, use preventive diplomacy (e.g., good offices missions) to prevent further deterioration, and coordinate its actions with the Security Council.

Other important situations addressed at HRC46 included Belarus, Israel/the Occupied Palestinian Territories (OPT), South Sudan and DPRK.  In the case of  Belarus, the final resolution, adopted by vote (20-7-20), after 14 hostile amendments were all rejected (six tabled by Belarus, six by Russia, one by China), also gives important new accountability powers to the high commissioner (instead of establishing a more typical investigative mechanism such as a IIMM), and offers a (very) small nod towards preventative diplomacy.

When it came to the Israeli human rights violations in the OPT, the main significance of the resolution adopted at HRC36 was not so much in its content, but rather the agenda item under which it was adopted. In a welcome move that should strengthen the Council’s ability to secure accountability for violations committed against Palestinians, Pakistan, on behalf of the OIC, moved another of the traditional item 7 resolutions (human rights in the OPT) to item 2, and merged it with another OPT-focused text. Although the final resolution was in any case voted during HRC46 (it was adopted with a very healthy majority of 32-6-8), Pakistan’s move led to a split in the European vote (Austria and Bulgaria voted against, while the Czech Republic and the UK abstained). More importantly, with only three texts now remaining under item seven, Pakistan’s tactical move will make it increasingly difficult for Western states, including the US, to use the presence of item 7 of the Council’s agenda as an excuse to avoid engaging on the substantive matter of Israeli violations of human rights law in the OPT.

Thematic issues. While much attention was devoted, at HRC46, to whether and how the Council should address situations of serious human rights violations around the world, the session also saw a number of important thematic debates and resolutions.

Two of the most significant were on vaccine multilateralism and universal recognition of the right to a healthy environment.

Regarding the former, HRC46 saw a new initiative on 'Ensuring equitable, affordable, timely and universal access for all countries to vaccines in response to the coronavirus disease (Covid-19) pandemic.' A resolution on this subject, which was adopted without a vote requested a report on the human rights implications of the lack of affordable, timely, equitable and universal access and distribution of Covid-19 vaccines, as well as the deepening inequalities between states, and the impact on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

Ecuador had announced its intention to introduce a resolution on this subject during the Council's organisational meeting. However, during the session itself, Azerbaijan on behalf of the NAM, tabled a resolution on vaccine multilateralism. The Ecuador draft had for the most part been positively received; whilst there was strong Western opposition to the NAM text. In the end, a decision was taken to merge the draft resolutions.

Read also: 'I'm not afraid to point a finger': UN special rapporteur on human rights and the environment

Regarding the right to a healthy environment , the session began with a side event organised by the Universal Rights Group (URG), UNICEF, UNEP, OHCHR and others, featuring calls for universal recognition by ministers from Fiji, Costa Rica and the Maldives, and by the high commissioner, the executive director of UNICEF, and the executive director of UNEP. The event also saw the launch of a new URG policy report, authored with the current and former UN special rapporteurs on human rights and environment, setting out the case for universal recognition of this right, (entitled ' #TheTimeIsNow' ).

Around the same time, an appeal signed by over 1,150 civil society organisations was conveyed to the Council in a joint statement . Later in the session, the core group of supportive states set out a roadmap towards universal recognition in a joint statement supported by over 60 States, while in an unprecedented move, a further joint statement was delivered by 15 UN agencies and programmes calling on the Council and the General Assembly to recognise the right to a healthy environment in 2021.

Linked with these historic steps, at the end of the session a resolution renewing the mandate of the special rapporteur on human rights and environment was adopted by consensus. Notwithstanding, the language of the final text was weakened, especially around the role of environmental human rights defenders, cooperation with UNEP, and the causal link between biodiversity loss and zoonotic diseases such as Covid-19. From discussions with diplomats, it appears that the latter deletion was pressed by China due to sensitivities around the origins of the coronavirus pandemic.

Marc Limon is the executive director and founder of the Universal Rights Group (URG), a think tank focused on international human rights with offices in Geneva, New York and Bogota. Prior to founding the URG in 2013, Limon worked as a diplomat at the UN Human Rights Council from the body’s establishment in 2006 until the end of 2012.