Abstract: The U.N. Human Rights Council’s record over its first four years is gravely disappointing. Contrary to claims made by the Obama Administration, U.S. membership on the council has not appreciably improved its performance. However, the council can now claim added legitimacy for its decisions and resolutions because of U.S. support and membership. The council’s performance is unlikely to improve without drastic reforms to improve its membership, such as barring states with grave human rights violations from membership and requiring competitive elections. If membership reform efforts fall short, the Obama Administration should explore creating an alternative human rights organization composed of governments that respect and observe human rights.

Annual elections for rotating membership on the 47-seat U.N. Human Rights Council (HRC) took place in the U.N. General Assembly on May 13. This was the fifth round of elections since the HRC was founded in 2006.[1] Throughout these elections, the composition of HRC membership has remained a serious concern, with countries considered “free” by Freedom House constituting a bare majority (53 percent) in 2006 and a minority of membership in each subsequent year. Worse, the number of “free” countries on the council has declined while the number of “not free” countries has increased.

This is immensely important because “free” countries are the most likely to observe and protect human rights—the very purpose of the council. The inclusion of countries that fail to observe human rights or actively repress the rights of their citizens, as in the cases of long-time council members China and Cuba and newly elected member Libya, has greatly undermined the council’s work. Coalitions of countries that have little interest in promoting human rights have twisted and misused the council to shield human rights abusers from scrutiny, to weaken initiatives to hold violators of human rights to account, and to advance agendas hostile to the council’s mission, such as lending credence to the “defamation of religions” effort and launching politically motivated attacks on Israel.

Although the Obama Administration’s efforts have marginally improved a few HRC resolutions and may have shifted a few HRC vote tallies at the margin, the U.S. presence on the council for the past year has done little to improve the likelihood that the HRC will fulfill its charge as a robust proponent and defender of human rights. To fulfill its intended purposes, the HRC needs fundamental reform, particularly in setting credible membership criteria.

The U.S. and the Human Rights Council

The U.N. Human Rights Council was created in 2006 to replace the U.N. Commission on Human Rights, which had failed to hold governments to account for violating basic human rights and fundamental freedoms. During negotiations to establish the Human Rights Council, many basic reforms and membership standards were proposed to ensure that the council would not simply repeat the commission’s failures, but few reforms received sufficient support in the General Assembly.[2] As a result, the council has performed no better—and in some ways worse—than the commission it replaced.

Anticipating this outcome, the Bush Administration decided not to seek a seat on the council in 2006. Based on the council’s subsequent disappointing record, the U.S. again declined to seek a seat in 2007 and 2008. The Bush Administration also withheld a portion of the U.S. contribution to the U.N. regular budget (equivalent to the part that would be allocated to the council) and distanced itself from the council’s proceedings except in instances of “deep national interest.”[3]

Once in office, the Obama Administration quickly reversed Bush Administration policy by participating in council deliberations and seeking a council seat. Several Obama Administration officials argued that the Bush policy of distancing the U.S. from the council had not improved its performance and that, as a member, the United States could improve it from within. Indeed, when questioned about the 2010 election of new members to the council, U.S. Permanent Representative to the United Nations Susan Rice stated:

The United States joined the Human Rights Council a year ago because we feel very firmly that the promotion and protection of human rights internationally is a core value of the United States, and a fundamental cornerstone of U.S. foreign policy. We did so understanding full well that this is a Council that has not lived up to its potential, and remains flawed, but we have taken the view in this and other circumstances that it is preferable to work from within to shape and reform a body with the importance and potential of the Human Rights Council, rather than to stay on the sidelines and reject it….

… [I]n the short time that the United States has been on the Council, there has indeed been some progress…. We have work going forward. I am particularly interested in actively shaping the Council in the context of the review that will be coming up in a few months time.[4]

Despite Ambassador Rice’s statement, it is apparent after the first year with the U.S. as a voting member of the HRC that the U.S. presence has not substantially improved the council.

Flaw #1: The bias against Israel continues.

In the past year, the council has continued its hostile and disproportionate condemnation of Israel. Since 2006, the council has adopted 40 condemnations of countries, of which 33 focused on Israel.[5] U.S. membership on the council has not stopped this bias. In March 2010, over U.S. objections, the council adopted five new resolutions condemning Israel or its actions.[6]

In addition, the council has held 10 special sessions since 2006 that focused on country situations, and a majority of the sessions focused on condemning Israel.[7] The most recent of these special sessions was held in 2009—after the U.S. became a member—to discuss the U.N. Human Rights Council Fact Finding Mission on the Gaza Conflict (the Goldstone Report), which has been criticized as “deeply flawed” and biased against Israel by the Obama Administration.[8] The council adopted the Goldstone Report[9] in a resolution that condemned Israel in detail but failed to mention Hamas’s indiscriminate firing of rockets and mortars at Israeli civilian settlements, even though the Goldstone Report stated that they “constitute war crimes and may amount to crimes against humanity.”[10]

Flaw #2: The HRC has failed to address numerous serious human rights situations.

The Obama Administration has touted council resolutions on various human rights situations during its tenure:

Specifically we’ve gotten important renewals of the mandates on [North Korea] and Burma. We’ve strengthened the mandate for the Democratic Republic of the Congo with benchmarks, support and oversight on the ground to protect human rights. And…we got a significant victory related to Guinea in a consensus text with the establishment of transitional support for the government of Guinea as it seeks to return to democratic government and support for human rights going forward.[11]

In the past year, the council has also passed resolutions addressing human rights situations in Cambodia, Honduras, Somalia, and Sudan. However, these actions are either low-hanging fruit or tread ground already traveled by the council in previous resolutions. Despite U.S. membership, the council continues to ignore human rights violations by many serious perpetrators, including Algeria, China, Cuba, Egypt, Iran, Libya, Pakistan, Saudi Arabia, Venezuela, and Zimbabwe.

In fact, in the 2010 election, seven countries with dubious human rights records (Libya, Angola, Malaysia, Thailand, Uganda, Mauritania, and Qatar) were elected to the council even though they have been criticized by human rights groups for violating the rights of their citizens.[12] All of these countries received overwhelming support from the U.N. membership in the May 13 election. Even Libya received support from 155 of 192 U.N. member states.[13]

Flaw #3: The HRC has been used to provide support to efforts that undermine human rights and fundamental freedoms.

For instance, the Human Rights Council has repeatedly adopted resolutions recognizing and promoting bans on the “defamation of religions.” The proponents of these resolutions seek to ban all criticism of religion, regardless of context or setting.

According to the Organization of the Islamic Conference (OIC), the major proponent of such resolutions, criticism of Islam by itself is an incitement to violence and discrimination and therefore must be banned as “Islamophobic.” According to the OIC’s definition, any speech, book, film, or other form of expression that depicts Islam, Mohammed, or Muslims in an unflattering light constitutes defamation. The defamation of religions resolution is a direct assault on the fundamental rights to freedom of religion and freedom of expression.

The U.S. has long opposed the OIC’s “defamation of religions” resolutions, both at the council and in the General Assembly.[14] Through the efforts of nongovernmental organizations (NGOs) and government pressure from the U.S. (under the Bush and Obama Administrations) and other countries, support for resolutions supporting bans on the defamation of religions has declined in the General Assembly and in the Human Rights Council. The Obama Administration deserves credit for fighting hard to reduce support for the defamation of religions resolution in the 13th session of the council to an all-time low. Nevertheless, the resolution was adopted (20 in favor, 17 against, 8 abstentions) despite U.S. efforts.

In short, the HRC’s performance with the U.S. as a member has been virtually indistinguishable from its previous performance without the U.S. as a member. However, one significant aspect has changed: Now the council can claim added legitimacy for its decisions and resolutions because the U.S. supports the institution and is a member.

The Critical Flaw: Council Membership

Although the Obama Administration has tried to improve the HRC, the sad reality is that this objective is beyond the ability of any one state, even the United States. One major reason that the Human Rights Council has failed to fulfill its charge of “promoting universal respect for the protection of all human rights and fundamental freedoms for all”[15] is the absence of any meaningful membership criteria other than geographical representation.

Rather than adopting strong membership criteria to prevent human rights abusers from sitting on the new council, the General Assembly resolution creating the council merely instructed member states to “take into account” a candidate’s human rights record when they vote.[16] Not even states under Security Council sanction for human rights violations are excluded. The failure to include such standards is inexcusable because it was widely recognized that a key failing of the Commission on Human Rights was the ability of human rights abusers to win seats on the commission and use their positions to block scrutiny of their human rights records.

The lack of membership criteria leaves the council open to infiltration and manipulation by the world’s worst human rights abusers. For instance, despite well-known and extensively documented histories of repression and violations of basic human rights, “not free” countries such as Algeria, Angola, Azerbaijan, Cameroon, China, Cuba, Egypt, Pakistan, Qatar, Russia, Saudi Arabia, and Tunisia have been elected to seats on the council. These countries have been key players in undermining the council’s effectiveness.

In the recently completed 2010 election, seven more states—Libya, Angola, Malaysia, Thailand, Uganda, Mauritania, and Qatar—were elected to the council despite questionable or poor human rights records according to human rights NGOs. Moreover, Freedom House downgraded Jordan and Kyrgyzstan from “partly free” in 2009 to “not free” in 2010. All told, once the newly elected members assume their seats, the council will have a record number of “not free” countries—more than overturning the positive result from the 2009 election.

The regional dynamics of council seat quotas— 13 for Asia, 13 for Africa, eight for Latin America and the Caribbean, seven for Western European and Other States, and six for Eastern Europe—virtually ensure that states hostile to human rights can dominate the council’s agenda. The sheer number of countries from the African and Asia regions (the regions with the highest concentrations of “not free” countries according to Freedom House) makes it extremely difficult to achieve a majority of “free” countries that actually respect and observe human rights. (See Chart 1.)

As illustrated in Chart 2, an examination of countries elected to the council along with their Freedom House designation yields the following:

• In 2006, the first HRC election produced a council in which 25 of 47 members (a bare majority of 53.2 percent) were ranked “free” by Freedom House.
• The 2007 election marked a regression, with only 23 council members (48.9 percent) ranked as “free.”
• The 2008 again produced a council with only 23 “free” members.
• The 2009 election saw the U.S. elected but similarly produced a council with only 23 “free” members.
• The 2010 election yielded an all-time low of only 20 (42.6 percent) “free” countries sitting on the council.[17]

In short, The number and influence of HRC members that actually observe and protect fundamental human rights has declined, while the number of seats held by repressive states, which should be the targets of HRC scrutiny, has expanded.

When “free” states are a minority on the council, the states hostile to human rights often find it easy to promote actions and positions that undermine human rights and fundamental freedoms. Because of geographical fidelity, a few determined states can often dominate the council’s agenda by manipulating voting through regional blocs.

Together, the African and Asian states (26 seats) control a majority on the 47-seat council. Most countries in these regions are members of the Non-Aligned Movement and the G-77. Significantly, members of the Organization of the Islamic Conference also represent a majority in those regions. By persuading a majority of each region to support counterproductive resolutions, influential countries in various regions (e.g., China in Asia, Cuba in Latin America, and Libya in Africa) and groups like the OIC have negatively influenced council deliberations, resolutions, and decisions.

The result has been passage of resolution after resolution condemning Israel or undermining freedom of speech in the name of combating defamation of religions, while resolutions that champion human rights practices fail to win sufficient support. The likelihood of this outcome increases as the number of “free” countries declines and the number of “not free” countries expands.

Dramatic Change Required

In the end, making the Human Rights Council effective will require dramatically improving the quality of its membership. In the past, the U.S. sought to address the shortfall in membership standards by arguing that regions should offer more candidates than open seats. Because the countries with the most votes win the seats, the hope was that competitive election would improve the quality of HRC membership.

In other words, although countries with poor records may receive support from a majority of the General Assembly (the threshold for election to the council), the U.S. hoped that in a competitive election, they would receive less support than a country with a superior human rights record. A successful example of this strategy was Bosnia and Herzegovina beating Belarus in the 2007 election.[18]

Regrettably, when the Obama Administration sought a seat on the council in 2009, it did so under a “clean slate”—i.e., offering only as many candidates as there are open seats—from its regional group. This undermined U.S. credibility to call for other regions to offer competitive slates. Unsurprisingly, in the 2010 HRC elections, every regional group offered a clean slate. Indeed, the U.S. decision to seek a council seat under a clean slate has greatly diminished the prospects for competitive HRC elections in the future.

Without serious and strict membership standards, the council will continue to disappoint. With the main means to address the quality of council membership under the current system (pressure on regions to offer competitive slates for election) crippled, the U.S. has little choice but to seek to adopt membership criteria through General Assembly action. Possible reforms include:

• Barring states under U.N. Security Council sanction for human rights issues or that are the focus of HRC country mandates from running for election to the council;
• Requiring regions to offer twice as many candidates as open seats to force competitive elections;
• Automatically requiring every country not already on the council or barred from running (e.g., for having just served two consecutive terms on the council[19]) to run as a candidate for any open seat in its region; and
• Ideally, establishing a minimum human rights standard for membership based on objective human rights analyses incorporating the work of human rights NGOs, the council’s human rights experts, and the various human rights treaty bodies.

The best opportunity to implement such reforms will be at the U.N. General Assembly’s five-year review of “the status of the Council,” which is required by the resolution that created the council. The review must be conducted by April 2011.[20]

The Human Rights Council’s record over its first four years is gravely disappointing. Without drastic reform to improve the council’s membership, its performance is unlikely to improve. If membership reform efforts fall short in 2011, the Administration should be prepared to sever its relations with the council and explore options for an alternative human rights organization composed of governments that respect and observe human rights and are willing to promote them.

Conclusion

The Obama Administration was wrong to seek a seat on the U.N. Human Rights Council. The council’s problems, beginning with the ability of governments with poor human rights records to win seats on the council and detrimentally influence its actions, are too fundamental for the U.S. to fix as a member.

Making the HRC effective will require dramatically changing the quality of the council membership. States with grave human rights violations must be barred from membership, and elections must be made competitive to increase the likelihood that states that respect and abide by fundamental human rights will win council seats instead of states with questionable human rights records.

While the U.S. should not abandon its efforts to counter objectionable resolutions and initiatives proffered by the council members that are hostile to human rights, the Obama Administration should recognize that making the council an effective proponent of human rights hinges less on the votes in individual council sessions than on successfully adopting membership reforms in the 2011 council review.

Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation and editor of ConUNdrum: The Limits of the United Nations and the Search for Alternatives (Rowman & Littlefield Publishers, 2009). The author would like to thank Erica Munkwitz for her assistance with this paper.