On 12 October 2018, the United Nations General Assembly (UNGA) will hold elections for 18 seats on the UN Human Rights Council (HRC) for a three-year term starting on 1 January 2019. All five UN regional groups have clean slates – in which the number of candidates is equal to the number of vacant seats.[1] These clean slates turn the election into an appointment process that violates the spirit of the Council’s membership rules and undermines the credibility and effectiveness of the Council.
The HRC is the UN’s leading human rights body, and the UN’s success in promoting and protecting human rights is judged in large part by the accomplishments of the Council. While the Council’s rules and practices allow a large active role for observer States and other observers,[2] only the members vote, and they ultimately determine what the Council decides. The quality of each Council member’s commitment to the promotion and protection of human rights and the related role of the UN is central to the Council’s ability to fulfil its mandate faithfully. The credibility of the Council, and by extension the UN in the field of human rights, depends to a large extent on the quality of the Council’s membership. Given the substantial responsibility attached to each seat on the Council, the full UN membership should have a real say in determining which States are entrusted with that responsibility.
The HRC’s membership rules
The rules governing the election of members of the HRC are set out in operative paragraphs 7 and 8 of UN General Assembly (UNGA) resolution A/RES/60/251, which established the Council. Operative paragraph 9, which sets standards for Council membership, is also relevant. According to operative paragraphs 7 and 8, HRC members are elected directly and individually by secret ballot by the majority of members of the UN General Assembly, which currently requires at least 97 votes. The term of membership is three years, with elections held annually to replace approximately one third of the members from each regional group.[3] The Council’s rules provide that Council membership is open to all UN member States. The rules require voting States to take into account each candidate’s contribution to the promotion and protection of human rights and its voluntary electoral pledges and commitments. Operative paragraph 9 requires that elected Council members uphold the highest standards in the promotion and protection of human rights and cooperate fully with the Council. UNGA, acting by a two-thirds majority, may suspend the rights of membership in the Council of a member that commits gross and systematic human rights violations.[4] This clearly suggests that a State that commits such violations should not be elected to the Council in the first place.
The HRC membership criteria set out in GA resolution 60/251 are intended to promote Council membership committed to the promotion and protection of human rights. One of the principal criticisms of the former Commission on Human Rights focused on the composition of its membership.[5] In the negotiations leading to the creation of the HRC, considerable attention was given to establishing better rules of membership.
Clean slates are certainly inconsistent with the spirit of the rules in resolution 60/251 governing the elections of Council members, and arguably they do not respect their letter either. They certainly make a mockery of the concept of “election” except in a ‘Humpty Dumpty’ universe where a word means just what UN member States choose it to mean, neither more nor less. What is the point of electing States being required to take into account the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments if there is effectively no choice to be made? What is the point of requiring Council members to uphold the highest standards in the promotion and protection of human rights and fully cooperate with the Council, if States that manifestly fail to uphold the highest standards or to cooperate with the Council can self-select Council membership through being on a clean slate?
Clean slates deny the General Assembly members the opportunity to pursue the membership objectives of resolution 60/251 in electing HRC members. The choice a clean slate offers a voting State is no choice at all other than to refuse to cast a ballot for unqualified candidates presented on clean slates.[6] Theoretically an unqualified candidate on a clean slate could be denied the 97 votes in General Assembly necessary to be elected. However, that has not happened yet in the history of the HRC, and there is little reason to expect it to happen any time soon. At best, one can hope that if a significant number of votes were to be withheld from an unqualified candidate that would pass a clear political message about the perceived lack of merit of that candidate.
While running in a contested UN election can be expensive and there might be significant domestic political costs to an unsuccessful candidate, States are prepared to pay those costs in the Security Council and other UN elections. The UN is a better organisation for that. If States are truly committed to human rights, they should be prepared to bear the costs in HRC elections as well.
Compensating for clean slates
Clean slates are not a new problem. In the HRC elections between 2006 and 2017, out of 60 regional electoral slates, 39 (or 65%) have been clean slates. The only year in which there were no clean slates was 2006 in the first election of Council membership. In addition to this year, all five regional groups presented clean slates in 2008 and 2009. In most years there have been between three and four clean slates in elections for HRC membership.
There is widespread acknowledgement among States and non-governmental organisations that measures must be taken to improve the membership of the HRC[7]. However, the ongoing failure of UN member States, collectively within their regional groups and individually, to eschew clean slates raises questions about the sincerity of their calls for improvement in the HRC membership. To go by past practice, reforming the election rules requires difficult-to-achieve consensus, whereas it is within the purview of every UN member State to contest an election for a seat on the HRC.
The limited choice offered in HRC elections stands in marked contrast to the often-elaborate campaigning that precedes them. Many candidate countries carry out elaborate high-profile campaigns, replete with glossy publications, eye-catching websites and intensive public diplomacy. Many, but not all, candidates make pledges, of variable specificity and quality, about what they will do if elected. Many trade their votes in other UN elections unrelated to human rights for votes for their HRC candidacy.[8]
The International Service for Human Rights and Amnesty International, with the support of sympathetic governments, host election hustings in New York and Geneva to allow candidate countries to present their platforms and others to test those platforms. Unfortunately, many candidates do not participate in them. The Universal Rights Group publishes an impressive detailed analysis of the candidates’ qualifications, as does the International Service for Human Rights. While these measures bring valuable transparency to HRC elections, they will have no impact on the composition of HRC membership when clean slates ensure the election of candidates regardless of the quality, or lack thereof, of their contributions to the promotion and protection of human rights or their voluntary pledges. At best these endeavours contribute to setting the stage for assessing subsequently whether members have lived up to pledges and commitments that they made in connection with their candidacies.
While ISHR and Amnesty International deserve praise for their hustings initiative, the events would benefit from a higher profile. Holding them under the authority of the President of the General Assembly would increase the political cost of failing to participate in them and thereby contribute to making participation in them a required practice.[9] It would also further emphasise the importance of electoral pledges and commitments and give prominence to a candidate’s failure to make such pledges. Unfortunately, neither UNGA nor the HRC have a practice of reviewing whether Council members have given effect to their electoral pledges and commitments. There should be such an evaluation.[10] Election pledges are occasionally raised in the Universal Periodic Review, but a more systematic assessment is required, perhaps under the authority of the UNGA President or the President of the HRC.
In remarks to the thirty-sixth session of the HRC on 12 September 2017, Zeid Ra’ad Al Hussein, the previous High Commissioner for Human Rights, suggested that “consideration be given to the need to exclude from [the Council] States involved in the most egregious violations of human rights”. One could argue that the electoral rules in UNGA resolution 60/251 already call for that in their requirement that Council members uphold the highest standards in the promotion and protection of human rights. To encourage regional groups and electing States give effect to the existing rules, the Office of the High Commissioner for Human Rights could produce an analysis of the human rights records and pledges of HRC candidates that would support an informed assessment by States voting in UNGA of whether candidates meet the Council’s membership criteria. Such an analysis would carry more weight than even the best NGO publication.
While there are strong arguments for ending the practise of presenting clean slates, there is no sign that States and regional groups have the political will to do that. If regional groups[11] and their members are not prepared to put forward contested slates – with more candidates than there are vacancies to be filled – they should, at a minimum, undertake a rigorous vetting of States that seek election to the HRC. Judged against the criteria for HRC membership, the inclusion of Eritrea on the African Group’s clean slate and the inclusion of the Philippines on the clean slate of the Asia and Pacific Group for the 2018 elections is a shameful abdication of responsibility.
Eritrea has been considered under agenda item 4 of the HRC since 2012, most recently in June 2018. 13 African Group members adopted without a vote resolution A/HRC/RES/38/15 on the Situation of human rights in Eritrea. In that resolution, the Council:
“Condemns in the strongest terms the reported systematic, widespread and gross human rights violations that have been and are being committed by the Government of Eritrea in a climate of generalized impunity.”
As mentioned earlier, resolution 60/251 allows for the suspension of the rights of membership of a Council member that commits gross and systematic violations of human rights. How the African Group could decide that Eritrea meets the membership criteria for the HRC is difficult to imagine.
President Duterte of the Philippines has on repeated occasions insulted or threatened HRC Special Procedures mandates-holders.[12] Members of the HRC are required to “fully cooperate” with the HRC. Threatening persons fulfilling mandates established by the Council demonstrates contempt for the Council and falls far short of full cooperation. Surely the members of the Asia and Pacific Group have a responsibility to hold the Philippines to account for that failure to cooperate, which should preclude allowing the Philippines to run for re-election to the HRC on a clean slate.[13]
Conclusion
Great effort goes into the annual HRC elections. It is time for the UN and its member States to put that effort to better use by ensuring that future elections are contested by candidates appearing on open slates in all regional groups, or, failing that, providing greater incentives to encourage candidates committed to the promotion and protection of human rights and discouraging those States that fail to meet the membership criteria of the Council.
Peter Splinter is a human rights consultant and former representative of Amnesty International to the United Nations in Geneva.
[1] The candidate countries in this year’s election are Burkina Faso, Cameroon, Eritrea, Somalia and Togo for the five vacancies to be filled by the African Group; Bahrain, Bangladesh, Fiji, India and Philippines for the five vacancies of the Asia-Pacific Group; Bulgaria and Czechia for the two vacancies of the Eastern European States Group; Argentina, Bahamas and Uruguay for the three vacancies of the Latin American and Caribbean States Group; and Austria, Denmark and Italy for the three vacancies of the Western European and other States Group. The list of candidates can be found at: http://yourhrc.org/2018-elections/ . This information as well as links to candidates’ pledges, where available, will eventually be made available on the elections webpage for the 73rd session of the UN General Assembly. The information for the 2017 elections to the HRC can be found at: https://www.un.org/en/ga/72/meetings/elections/hrc.shtml.
[2] General Assembly resolution A/RES/60/251, operative paragraph 11.
[3] The HRC’s 47 seats are distributed as follows among the UN’s five regional groups: African states 13; Asia Pacific States 13; Eastern European States 6; Latin American and Caribbean States 8; and Western European and other States 7.
[4] This provision in operative paragraph 8 of resolution 60/251 was used in 2011 to suspend the membership rights of Libya. More use could be made of threat of suspension of rights of membership to discourage states with very poor human rights records from seeking election to the HRC.
[5] See the Secretary-General’s report In Larger Freedom : towards development, security and human rights for all (A/59/2005) at paragraph 182:
Yet the Commission’s capacity to perform its tasks has been increasingly undermined by its declining credibility and professionalism. In particular, States have sought membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticize others. As a result, a credibility deficit has developed, which casts a shadow on the reputation of the United Nations system as a whole.
[6] A coalition of NGOs whose members are active in all UN regions has written to the New York permanent representatives of all UN member states to encourage them to refrain from voting for candidates unfit for Council membership at the upcoming election. See: http://www.humanrightsinitiative.org/publication/chri-and-partner-organisations-urge-un-member-states-to-refrain-from-voting-for-candidates-that-are-unfit-for-membership.
[7] Possible measures to improve the membership of the HRC have been discussed on many occasions in many venues prior to and after the demands of the Trump Administration for changes to the Council. Recently, on 1 December 2017, 130 State representatives, as well as UN officials and NGO representatives, met to discuss informally ways to further improve the efficiency and effectiveness of the Council. A large part of their discussion was devoted to Council membership and elections. See https://www.universal-rights.org/urg-policy-reports/human-rights-council-strengthening-conference/ at pp. 17-19 and Issues paper on Council membership and elections: promoting universality, legitimacy, diversity and inclusiveness (Group 3).
[8] The UNGA secret ballot makes it nearly impossible to know how states vote in the HRC elections, and it hides from scrutiny evidence of vote trading. It also stands in the way of holding individual states accountable for failure to respect the HRC membership criteria in how they cast their ballots in the election of HRC members.
[9] If the electoral hustings were to be formalised within UNGA, rules would need to be established to ensure a place for civil society participation.
[10] Some NGOs have tried to fill t this gap. Over the life of the HRC, the Commonwealth Human Rights Initiative has carried out an analysis of the record of Commonwealth member states that have served as HRC members in giving effect to their pledges. See: EASIER SAID THAN DONE 2018 at http://www.humanrightsinitiative.org/publication/easier-said-than-done-2018 and other publications in the same series. See also http://www.humanrightsinitiative.org/publication/the-commonwealth-at-the-human-rights-council-a-decade-of-voting-20062016. The Universal Rights Group also examines fulfilment of previous pledges as part of its analysis of candidates’ qualifications.
[11] Regional groups cannot force their members to put themselves forward as candidates for election to the HRC or formally block states from acting as candidates. With the exception of the African Group, regional groups do not play a formal role in determining which states will put themselves forward as candidate for election to the HRC. Nonetheless much more could be done by way of political suasion within regional groups to encourage qualified candidates and dissuade unqualified ones.
[12]The mandate-holders threatened include the Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special Rapporteur on the Independence of Judges and Lawyers and the Special Rapporteur on the rights of indigenous peoples.
[13] The HRC itself has been equally feckless in failing to call out President Duterte for his repeated attacks on its Special Procedures mandate holders and in electing the Ambassador of the Philippines as a Vice-President of the Council for 2018.
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