By Sarah Joseph
Foreign Minister Julie Bishop has announced that Australia is running for a seat on the UN Human Rights Council for the period of 2018 to 2020. The bid was originally made by the previous government, and has now been officially endorsed by this one.
What is the Human Rights Council?
The UN Human Rights Council was established in 2006 to replace the UN Commission on Human Rights, which had run from 1947 to 2006. In that time, the Commission had some impressive accomplishments, including its early drafting of the Universal Declaration on Human Rights in 1948, and most of the core UN human rights treaties. The Commission played a role in promoting and developing human rights norms, and investigating and highlighting human rights issues and crises.
However, by the time of its demise, its reputation was so clouded that its official name seemed to have become “the Discredited” Human Rights Commission. The West felt that too many countries with terrible human rights records, such as Sudan and Zimbabwe, were joining the Commission (it had 53 member states) to protect themselves from censure. In contrast, developing States felt that the Commission had become too antagonistic in its dealings with them.
A revamp was needed, so the Commission was replaced by the Council, which has the same normative and investigative functions and has 47 member states. It has one major new function, the Universal Periodic Review (“UPR”), whereby the human rights record of every UN member is reviewed by the Council (as well as all other “observer” States) every four and a half years.
The 47 seats are divided between the five official UN regions in the following way: Africa (13); Asia (13); Latin America and the Caribbean (8); Western Europe and Other (7); Eastern Europe (6). Australia is in the Western Europe and Other Group, known as WEOG. One third of the Council is elected every year by the UN General Assembly, and members serve three-year terms. No member may serve more than two consecutive terms. A member can also be suspended from the Council upon a vote of two thirds of the UN General Assembly: Libya was so suspended in 2011 after Gaddafi’s crackdown on Arab Spring protesters and armed dissidents.
As the Council’s members are representatives of their governments rather than independent human rights experts, it is hardly surprising that the Council, like the Commission before it, is a highly politicised body. So is the Council an improvement upon the Discredited Commission? While the UPR is capable of improvement, it has generally been praised as a jewel in the Council’s crown, which clearly distinguishes it from the Commission.
Nevertheless, many of the same criticisms arise as were levelled at the Commission. Some of its members, now and in the past, have terrible human rights records. After all, while Libya was suspended in 2011, one may fairly ask why it was elected in the first place? Saudi Arabia’s current leadership role is attracting adverse media attention. Russia, China and Cuba are routinely elected, as was the case with the Commission, though they all had to sit out 2013 as they had all served two consecutive terms. It is no coincidence that 2013 was a comparatively productive year for the Council.
Human rights criteria were mooted as prerequisites for membership back when the Council was created. However, the UN’s nearly 200 members could not agree on substantive criteria, as they have different views on human rights. The US for example wanted only “democratic nations” to be eligible, whereas a focus on the implementation of economic and social rights might have led to the exclusion of the US itself. Procedural criteria, such as a State’s record on ratification of human rights treaties, would have been more objective. However, such criteria may have led to the exclusion of the two most powerful countries in the world, the US and China. As it stands, members commit to the highest standards of human rights, and States should take into account a nominee’s human rights record when voting. However, both of these rules are basically unenforceable.
Nevertheless, this author believes that the membership of the Council has generally been better than was the case with the later years of the Commission on Human Rights. It is notable that notorious abusers such as Sri Lanka and Belarus have sought and failed to gain election, while Syria was sensibly talked out of running in 2011. The secret ballot for Council elections may be a key here, as there is a chance that a UN region will lose a seat for a year if an insufficient number of its nominees are deemed acceptable enough to be elected by a majority of the UN General Assembly.
The Council is also criticised for running hard against human rights abuses in some contexts, while being notably soft in others. For example, inconsistency arose in 2009 when Israel was heavily condemned over Operation Cast Lead in Gaza while Sri Lanka was effectively praised a few months later for the end of its long-running civil war, despite thousands of civilian deaths. To be fair, the 2009 Sri Lanka resolution was possibly a nadir in the Council’s operations, and it has been more proactive in responding to major human crises since, such as those in Côte d’Ivoire, Libya, Syria, Mali and the Central African Republic. It has also now adopted resolutions condemning Sri Lanka and calling for war crimes investigations. However Australia did not support the 2014 resolution, presumably as it sought continued political favour with Sri Lanka to ensure its ongoing cooperation to stop asylum seeker boats.
A global intergovernmental body focusing on human rights is important. Such a body will always be dogged by politics, but it is important to have such a forum as States care more about what other States think than they do about the statements of human rights experts and NGOs. The Council is that global intergovernmental body, and its evolving membership represents the world of today, warts and all. It is doubtful that the battle for universal human rights observance will be won by adopting an “us and them” mentality which excludes significant numbers of countries even running for election for the “human rights club”. It could lead to balkanized human rights discussions, and possible competing institutions within the UN. The Council must be a forum where non like-minded States can talk to each other and cross divides (as does happen on occasion) to make important human rights decisions.
Australia and the Council
Australia is seeking a three-year term from 2018. It is competing with France and Spain for two WEOG seats. Will Australia be elected?
It is impossible to predict; much water will flow under the bridge before the election in 2017. Widespread praise for the role Australia ultimately played as a Security Council member indicates a reasonable amount of goodwill towards us. Clearly, France and Spain have the advantage of being members of the European Union, meaning they likely have a solid bloc of votes locked in. On the other hand, Australia benefits from being seen to represent a different region than the always-well-represented Europe. Australia could for example try to position itself as a champion of the Pacific nations, and we will no doubt use the eternal narrative that “we punch above our weight”. Furthermore, the EU has frankly been dysfunctional in its lobbying efforts on the Council, due to its slowness in being able to pin down a position amongst its own members.
Australia’s own human rights record will be of relevance to States in deciding how to vote. Australia’s upcoming second UPR on 9 November will enable us to see what their major concerns are.
Australia has significant and well-known human rights problems, for example concerning asylum seekers, onshore and offshore detention, indigenous people, violence against women and counterterrorism laws. Here, I will focus on issues which have the capacity to undermine Australia’s reputation for cooperation with the UN.
One concern will be the Abbott government’s hounding of Gillian Triggs, the President of Australia’s Human Rights Commission, as those attacks do not sit well with the single resolution that Australia routinely co-sponsors before the Council, that concerning the importance and independence of National Human Rights Institutions. However, it is likely that the government’s open hostility towards Triggs will soften under new Prime Minister Turnbull.
Of great concern will be Australia’s attitude to its direct engagements with UN human rights bodies. We do not have a good record of implementing the findings of the UN treaty bodies, which have found Australia to be in breach of international human rights law over forty times.
In March, the UN Special Rapporteur on Torture, an independent human rights expert who is appointed by and reports to the Council, found that Australia’s treatment of asylum seekers contravened anti-torture standards. Then PM Abbott petulantly responded that Australia was “sick of being lectured to” by the UN.
Only this week, the Special Rapporteur on the human rights of migrants postponed his official trip to Australia as the government could not guarantee that he could receive information from people about the offshore detention centres without those people suffering legal reprisals under The Border Force Act.
If Australia’s reputation for non-cooperation with the UN continues to grow, its Council bid could and should suffer.
Australia has a long and proud history with regard to human rights and the UN. Herbert Vere Evatt oversaw the adoption of the UDHR in 1948 as the president of the UN General Assembly. Distinguished Australians have served on the UN treaty bodies (eg Elizabeth Evatt, Ivan Shearer and Ron McCallum) and as Special Rapporteurs (eg Philip Alston is the current Rapporteur on extreme poverty and human rights). It is appropriate for Australia to continue that history of leadership and engagement by running for the Human Rights Council. It is a flawed body, but a necessary one.
Australia’s road to election in 2018 will however be tough. A good faith attitude to our upcoming UPR and the resultant recommendations, as well as efforts to redress our considerable human rights failings, will help in that regard.