A comparative analysis of Council and Third Committee resolutions
The relationship between the Third Committee of the General Assembly and the Human Rights Council sometimes appears not dissimilar to that of two brothers. Like brothers, for the most part, these two key UN human rights bodies get on well, with both understanding that they are part of the same family and that their fortunes are ultimately intertwined. However, also like siblings, when problems arise, the lack of a clear hierarchy between them can lead to confusion, rivalry and, occasionally, bad blood.
The seeds of the occasionally fractious relationship between the Third Committee and the Council were laid in 2005-2006 when States chose to ignore the-then Secretary-General, Kofi Annan’s hints that the newly established Council (which replaced the old Commission on Human Rights) should be a main body of the UN – on an (almost) par with the Council’s representing the other two pillars of the UN system: peace and security (i.e. the Security Council), and development (i.e. ECOSOC). Instead, States decided that the Council, even though it would be the UN system’s apex body ‘responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all,’ would only be ‘a subsidiary organ of the General Assembly,’ (OP1 of GA resolution 60/251).
Right from the start of the Council’s work, when the body’s first President, Luis Alfonso de Alba of Mexico, was forced to present the Council’s annual report to the GA not from the podium but from the seat of the Mexican delegation, this institutional fudge caused friction and confusion. Should the Council report only to the plenary of the GA, or also – at first instance – to its Third Committee (responsible for human rights)? If the latter, should members of the Third Committee have the opportunity to scrutinise and, potentially, re-open decisions of the Council, or merely receive and acknowledge them? Perhaps most fundamentally, the situation raised the question: which part of the UN system is responsible for driving international human rights policy: for setting norms and for holding States accountable against those norms? Is it the Council, is the Third Committee, or is it both?
These questions are important because they impact upon the overall coherence of the international human rights system.
The Council’s prerogatives
The issue of coherence matters because, at its most fundamental level, it has implications for whether or not the world needs the Human Rights Council at all. If, for example, the Third Committee retains the power to negotiate and adopt its own UN resolutions on human rights, and has the prerogative to unpick or block Human Rights Council resolutions (often on the same or very similar subjects), then a sensible observer might reasonably ask why the Council should spend ten weeks a year negotiating its own texts or establishing human rights mechanisms. Moreover, if, as happened in 2013 and again last year, the Third Committee can simply block (or try to) Council resolutions that some of its members don’t like (namely, in those cases, resolutions on the issue of ‘reprisals’ against human rights defenders, and on the issue of sexual orientation and gender identity), then one might ask why the General Assembly ‘resolve[d] to create a Human Rights Council’ in the first place.
This explains why, to many stakeholders, the events of 2013 and 2016 were about far more than normal disagreements over the extent and nature of universal human rights norms; rather they also had existential implications for the prerogatives of the Council and the institutional integrity of the UN human rights system.
One useful way of measuring and understanding these issues of coherence and integrity is to look at the resolutions adopted by the Council and the Third Committee. As noted above, one consequence of the current institutional fudge over the position of the Council in the UN hierarchy is that two different parts of the UN – the Council and the Third Committee – both draft, present and adopt human rights resolutions. What is more, often times these two sets of resolutions cover the very same subjects, yet present notably different positions or recommendations to States. This raises the obvious question: which UN body – the Council or the Third Committee – speaks for the UN in the area of human rights? In other cases, the human rights resolutions adopted by the two bodies are functionally identical (clearly ‘copy and paste’ duplications): a clear waste of human and financial resources.
To map these contradictions, overlaps and duplications – and therefore to help measure and understand the coherence of the overall UN human rights system – in 2015 URG undertook, for the first time, a comparative analysis of the titles and content of all resolutions adopted by the Council and the Third Committee between 2012-2013. The results, published in a URG Policy Report on the UN’s human rights resolutions system, showed that 27% of all human rights resolutions adopted by the Third Committee were functionally identical, elaborative or significantly overlapping with resolutions adopted by the Council. When one included resolutions with some lesser degree of overlap, this figure rose to over 40% of all human rights resolutions passed by the Third Committee during the period in question.
At the end of 2016, URG repeated this comparative analysis, for the period 2014-2015.
That new analysis found that 50 (out of a total of 85 texts analysed) Third Committee resolutions adopted in 2014 and 2015 had a prima facie Human Rights Council equivalent (judging by their titles). Looking at the content of the 85 Third Committee resolutions, URG found that eighteen (so around 21%) of the texts were functionally identical, elaborative or significantly overlapping with their Council equivalent text. When one included resolutions with some lesser degree of overlap, this figure rose to over 48% of all human rights resolutions passed by the Third Committee during the period in question.
In detail, URG’s new analysis (2014-2015) shows that:
- 4 Third Committee texts were functionally identical to their closest Council counterpart (4.7% of 2014-2015 Third Committee human rights resolutions).
- 4 Third Committee texts either elaborated upon, or were elaborated upon by, their closest Council counterpart (4.7% of 2014-2014 Third Committee human rights resolutions).
- 10 resolutions (around 12% of all Third Committee texts) contained significant overlap with their closest Council counterpart.
- 23 resolutions (27% of all Third Committee texts) contained some overlap with their closest Council counterpart.
- 9 texts (around 11%) contained no overlap with their closest Council counterpart (i.e. the equivalence was only in the title).
These numbers, which in some cases indicate a worsening of the situation since 2012-2013, are suggestive and indicative of significant problems – overlap, duplication and normative confusion – in the UN human rights system. There is clearly no added value in the 5% of Third Committee texts being functionally identical to their Council equivalent; nor is it be said to be a wise use of resources when 1/5 of Third Committee texts have significant substantive overlap with the Council’s resolutions.
In the short term, where States feel it necessary to run resolutions on a given subject in both Geneva and New York, then they should ‘stagger’ them – so, for example, table it one year at the Council and the next year at the Third Committee; and should aim to address different aspects of the issue in the two geographies (e.g. Denmark’s resolutions on the prevention of torture).
However, in the long-term, the reality is that above statistics are symptomatic of wider institutional incoherence, and that only by addressing those wider institutional questions will the problems of overlap, second guessing, reopening of Council reports and resolutions, etc., be permanently resolved. In the final analysis that means seizing the opportunity presented by the new review of the Council, starting in 2021, to elevate the Council to be a main body of the UN.
Note on Methodology
The analysis began at a prima facie level by comparing the titles of the resolutions adopted by each body. Resolutions adopted under the following items of the Third Committee’s agenda were considered to be human rights related:
- Advancement of women (a) – 2015: Item 29, 2014: Item 27
- Report of the Human Rights Council – 2015: Item 67, 2014: Item 63
- Promotion and protection of the rights of children – 2015: Item 68, 2014: Item 64
- Rights of indigenous peoples – 2015: Item 69, 2014: Item 65
- Elimination of racism, racial discrimination, xenophobia and related intolerance – 2015: Item 70, 2014: Item 66
- Right of peoples to self-determination – 2015: Item 71, 2014: Item 67
- Promotion and protection of human rights – 2015: Item 72, 2014: Item 68
The Third Committee adopted a total of 123 resolutions over the two year period in question, 62 in 2014 and 61 in 2015. Of these, a total of 85 resolutions were adopted under the agenda items listed above, with the remaining 38 dealing with other areas of the Committee’s mandate. The titles of these resolutions were then compared with the titles of the 190 resolutions adopted by the Council during the same period, in order to gauge surface similarities. The analysis found that 50 Third Committee human rights resolutions (58.8% of the total Third Committee human rights resolutions) were found to have at least one prima facie Council equivalent.
An analysis of the degree of overlap in the content of these resolutions was then conducted. The analysis considered substantive operative paragraphs with practical effect only, i.e those beginning with/containing any of the following terms:
Urges, Calls for, Calls upon, Requests, Demands, Decides, Creates, Renews, Adopts or Extends etc.
This analysis allowed them to be divided into five categories:
- Functionally identical: all substantive operative paragraphs in the two resolutions were identical or synonymous;
- Elaboration: one resolution contained all of the same substantive operative paragraphs as the other, either verbatim or synonymously, plus some further substantive operative paragraphs not appearing in the other;
- Significant overlap: of the total number of substantive operative paragraphs between the two resolutions, more than 60% had verbatim or synonymous equivalents in the ‘sister’ document;
- Some overlap: of the total number of substantive operative paragraphs between the two resolutions, less than 60% but more than 10% had a verbatim or synonymous equivalent in the opposing document;
- No overlap: of the total number of substantive operative paragraphs between the two resolutions, less than 10% had a verbatim or synonymous equivalent in the opposing document.
The results of this analysis have been outlined in full in the article above.
Almost 50% all human rights resolutions passed by the Third Committee during the 2014-2015 biennium contain at least some substantive overlap with their Human Rights Council equivalents.
The relationship between the Human Rights Council and the Third Committee of the General Assembly is one which can be said to function in spite of, rather than because of its institutional coherency. When the Council was created in 2006 and endowed with responsibility for the ‘promotion and protection of all human rights around the globe’, rather than making it a main UN body in its own right, UN members states made it a subsidiary organ of the General Assembly. As such the relationship between these two institutions has been haunted by a lack of certainty that the mandate of the Council has remained discrete from the corresponding role of the Third Committee. which is devoted to the consideration of social, humanitarian and cultural affairs.
Feature photo: Human Rights Council – 34th Session, H.E. Mr. Didier Burkhalter, Federal Councilor and Head of the Federal Department of Foreign Affairs of Switzerland, United Nations High Commissioner for Human Rights, speaks during the High-Level-Segment of the 34th Session of the Human Rights Council. UN Photo / Elma Okic, licensed under CC BY-NC-ND 2.0.