The Human Rihts Council replaced the Commission on Human Rights, which had been the UN’s foremost human rights body since the creation of the United Nations. The transformation of the Commission into the Council has been an unprecedented move in the institutional history of the UN, and one that is supposed to have enhanced the status of the resulting body and thus of human rights within the overall economy of the UN. At the same time, the creation of the Council is the result of a degree of frustration with the functioning of the Commission in its later years and so that the former’s success will be judged in part by its ability to transcend the latter’s shortcomings. In order to explain how the Council operates and to assess its work and potential, attention must therefore first turn to the Commission and to the reform proposals tabled immediately prior to the Council’s creation.

(a)  The Commission on Human Rights

Human rights promotion is one of the UN’s key objectives and typically viewed as its ‘third pillar’.¹ However, the gap between theory and practice has always been and remains wide. Legally, and in terms of the UN Charter, human rights are central to the UN, but in practice this area has been treated like the poor relation of the two other pillars—peace and security, and development. The second aim stated in the UN Charter’s Preamble² is ‘to reaffirm faith in fundamental human rights’.³ However, the (p. 183) Charter did not establish a principal organ to deal with human rights issues. Instead, Article 68 specifically mandated ECOSOC, a principal organ, to set up a Commission on Human Rights.⁴ The Commission was a subsidiary Charter-based body with jurisdiction over all UN members and could deal with any aspects of human rights.⁵ Although human rights are part of the formal mandates of ECOSOC and the General Assembly, as well as being relevant to the other principal organs’ work, the failure to create a principal organ that focused on human rights indicates that it was a secondary issue at the outset.

The Commission’s mandate was safeguarding and promoting international human rights. It operated from 1946 until 2005, and its work can be divided into two main areas: standard-setting, and the protection and promotion of human rights. Standard-setting was the Commission’s primary focus during the body’s first twenty years. Its greatest achievements in that area were drafting the Universal Declaration of Human Rights⁶ in 1948⁷ and the two codifying covenants, adopted in 1966—the International Covenant on Economic, Social and Cultural Rights,⁸ and the International Covenant on Civil and Political Rights.⁹ The Commission monitored the implementation of those standards that it had set, with such activities often undertaken by mandate holders and the Sub-Commission, as well as separately by treaty bodies.

As soon as the Commission had been created, it was inundated by human rights complaints from around the world. It seemed natural for many of these complainants to assume that, if the UN had a principal human right body then surely that body would have something to say about human rights violations. Yet nothing of the sort occurred owing to the Commission filing such complaints away rather than following up. After decades of pressure about this issue, in 1967 ECOSOC Resolution 1235 authorized the Commission to deal with any ‘consistent pattern of gross and reliably attested violations of human rights violations’,¹⁰ extending its work to human rights monitoring, implementing, and promoting, amongst others.¹¹ This led to a marked change of direction for the body, including the creation of the Special Procedures system¹² as well as a change in the body’s work and actions.

Theoretically, this expansion should have enabled the Commission to respond to human rights violations and to implement the standards that it had originally been (p. 184) created to set. However, the Commission ran into considerable difficulties. The expansion of international human rights to cover ever more issues, coupled with the body’s increasing loss of credibility in the eyes of states and observers, resulted in the Commission being widely deemed to be unable to fulfil its mandate.¹³ Eventually, the Commission’s perceived failures, especially in its final years, led to the body’s demise. Criticisms came from different, and sometimes diametrically opposing, perspectives. Alston observes that:

[w]hile many of the critics called for a conciliatory approach that would avoid confrontation with governments, others impugned its credibility precisely because it had failed to condemn governments that they considered to be responsible for egregious cases of human rights violations.¹⁴

A range of criticisms were levelled at the Commission by states, NGOs, and observers, which included:¹⁵ unbalanced Commission membership, inaction on pressing human rights issues, disproportionate focus on some countries, regionalism and insufficient time for dealing with pressing issues.¹⁶ Those themes provide a framework for analysing reform proposals, negotiations and assessing the Council’s founding Resolution. As attacks on the Commission came from different angles, the body’s ability to deal effectively with the criticisms waned.

Commission membership was long a matter of some controversy. As a functional ancillary of ECOSOC, it was hoped that power struggles, found in organs such as the Security Council and General Assembly, could be eliminated from the Commission and that the body would be allowed to focus solely on protecting and promoting human rights. Initial recommendations called for member states to send experts as delegates to the Commission rather than government representatives. That would have allowed the Commission to provide human rights expertise, as well as technical and practical assistance, without national agendas dominating proceedings. That proposal was not followed, and the Commission indeed became a political body.

In addition, increases in and diversification of Commission membership, whilst necessary, tended to increase the intensely political nature of the debates at the Commission. Initially the Commission had eighteen members. Membership increased to twenty-one states in 1962, thirty-two states in 1967, forty-three states in 1980, and fifty-three states in 1992. Membership increases reflected the growing number of states joining the UN due to decolonization, with some observers commenting that developing nations sought expansion of the Commission in order to gain control of the (p. 185) body.¹⁷ Indeed, although in 1946 the Commission reflected Western dominance, it became more representative with the years, in many ways legitimizing the body through greater geographical representation encompassing different governance. At the same time, change in composition resulted in more national political agendas being raised at proceedings and increased power struggles between states and regions.

Criticisms of the Commission’s membership initially focused particularly on the disproportionate number of Global North countries, the presence of known human rights abusers, and the fact that delegations were composed of government representatives rather than human rights experts. States, groups and blocs used various tactics and increasingly ‘ingenious’ methods to ensure that the Commission failed to take action on particular human rights situations that by any standard would have deserved action. Country-specific discussions were introduced to allow the Commission to deal with specific human rights situations, yet were used increasingly selectively and for political purposes.¹⁸ Donnelly echoes other writers in observing that ‘certain countries [were] singled out, for partisan purposes, to the exclusion of other, no less reprehensible regimes’.¹⁹ Politicization in the form of regionalism was a growing concern during the body’s later years as it increasingly overshadowed the Commission’s proceedings and work.²⁰ According to one commentator, the body ‘came to resemble a club where friendships easily overlooked wrongdoing’.²¹ The impact of regionalism, according to Roth, was to create a farcical body where human rights abusers used alliances to block scrutiny.²²

Another flaw was that insufficient time was allocated to deal with such an extensive array of human rights issues. The Commission held one annual six-week session leaving it ill-equipped to deal with increasing numbers of agenda items each year due to emergence of ever-more human rights issues.²³ Moreover, beyond passing resolutions it could not take action in response to human rights crises as it was not a standing-body with its own permanent resources.²⁴

It is important to note that not all states nor observers expressed, or even agreed with, criticisms of the Commission. Amnesty International’s 2005 report provided a nuanced view on the Commission, which highlighted the body’s good work and provided constructive reform proposals.²⁵ Recent scholarship demonstrates that some observers still view criticism of the Commission as unnecessary and undeserved, arguing that the (p. 186) body was not flawed and did fulfil its mandate.²⁶ Some observers maintain that the Commission’s disbanding resulted from a more general reformation atmosphere at the UN rather than due to an inherent need to end that body. Ghanea asserts that in all of the general UN reform proposals, the Commission’s potential to fulfil its mandate appeared to have been forgotten.²⁷ Nonetheless, the level of dissatisfaction with the Commission ensured that pressure to reform would eventually prove irresistible.

(b)  Reform proposals

During the Commission’s last decade significant changes were suggested that went beyond procedural and technical matters. Initially the objective was not to replace the body,²⁸ and debate focused on depoliticizing the Commission’s work. What soon became clear, however, was that support for the Commission was limited to a very small number of states and NGOs.²⁹ As a result, the Commission’s ‘death knell soon started to be heard’.³⁰ Attention started to focus on Commission abolition and the creation of a new body.

The idea for the Commission’s replacement was originally a Swiss government initiative in 2003, and the Bern Institute of Public Law³¹ produced a draft proposal which contained the idea of creating a Human Rights Council.³² That proposal was discussed, but was not unanimously accepted by states or non-state actors. However, it continued to be considered. In 2004 a report was published by the High Level Panel appointed by the Secretary-General to examine potential reforms to the UN,³³ in which it discussed abolishing and replacing the Commission³⁴ owing to the many problems that beset that body alongside the general reformation agenda that encompassed the human rights machinery at that time. Then Secretary-General Kofi Annan dealt with the same topic in his seminal 2005 report,³⁵ in which the strongest reform proposals were directed towards replacing the Commission.³⁶

(p. 187) It was recommended that the body be either a primary organ, equal to the Security Council and ECOSOC, or a subsidiary organ of the General Assembly. Informal consultations³⁷ demonstrated that many states supported the Commission’s replacement, and the elevation of the Council to a standing body.³⁸ However, divergence of opinion was common as several states were sceptical about whether those steps would overcome the Commission’s shortcomings.³⁹

In 2005, the General Assembly held its 60th Session during which the 2005 World Summit of Heads of State and Government sought to address issues within the UN human rights machinery by creating a new Human Rights Council to address ‘violations of human rights, including gross and systemic violations, and make recommendations thereon’.⁴⁰ Schoenbaum insists that ‘regretfully this tepid idea does not address the real problems: the hypocrisies of the U.N. Human Rights Commission’.⁴¹ Indeed, little was mentioned as to the Commission’s failings, nor how they would be overcome by a new body. The World Summit requested that the GA conduct negotiations to establish the HRC’s practicalities and to create the body.⁴²

Three key areas of discussion reflect the most severe criticisms of the Commission: membership and election, mechanisms and proceedings, and universal periodic review. Membership issues, as already discussed, were a serious concern that undermined the Commission’s credibility. It comes as no surprise, then, that a major area for reform focused on membership and elections to the new body; indeed, Alston observes that debates on membership and criteria dominated the reform discussions.⁴³ The emphasis placed on these issues reflected the gravity of concerns of almost all states and regional groups.

The recommendation of universal membership⁴⁴ aimed to ‘get rid of the politicization’ and ‘underscore universal commitment to the Charter’,⁴⁵ to remove attention from national political agendas and refocus it on human rights issues. Annan took the opposite approach, proposing that the Council be composed of fifteen states as compared with the Commission’s fifty-three. A smaller body reflected prioritizing fulfilment of mandate over power struggles and advancing national objectives. Kälin and Jimenez adopted a realist approach: disagreements would always occur between states at such a body.⁴⁶ Without legally binding powers—which was not formally recommended by anyone involved in the reform proposals—the body would remain a political arena at (p. 188) times used by states to advance national aims. They recommended that membership numbers should not be altered as it would not produce any changes to the politicization of the new body.

Another discussion focused on membership criteria. The High Level Panel had said that such criteria ‘would risk politicizing the Commission yet further’.⁴⁷ The majority of states were not in favour of election criteria⁴⁸ in part due to the inevitable subjectivity of such an approach. The US 2004 proposal that only ‘real democracies’ should be granted membership⁴⁹ reflected the Western idea that democratic values underpin much of human rights. That proposal would not have gained sufficient support, as most states would not meet this criterion. Others built on the US proposal, or proposed ‘soft criteria’ that would include ratification of core human right treaties, compliance with reporting obligations, and lack of recent condemnation by the Commission, amongst others, to increase the body’s credibility.⁵⁰

Alston notes the difficulty with only including states with good human rights records or democratic countries.⁵¹ Excluding known abusers was both impractical and undesirable, politically and diplomatically, and (paradoxically) risked undermining the legitimacy of the body: a non-representative, exclusive body would serve to strengthen the position that human rights are a preserve of Western and developed UN member states. Moreover, excluding countries from standing for election is fundamentally at odds with the key UN Charter principle of sovereign equality of member states despite most UN bodies providing for suspension of membership.

Furthermore, subjective interpretation of membership criteria would potentially allow powerful states to ensure that only their allies are granted membership. One way of ensuring that powerful states could not control membership was distributing seats in a geographically proportionate manner to stop any one region from dominating proceedings, thus maintaining the body’s credibility.⁵²

Reforms to the electoral process were proposed as another method for improving the credibility and work of the UN human rights body. The Secretary-General insisted that the Human Rights Council ‘must be a society of the committed’⁵³ and that ‘those elected [to the HRC] should have a solid record of commitment to the highest human rights standards’. Such language was used to emphasize the need for elections to focus on states’ commitment to human rights—essentially, whether they met the aforementioned soft criteria. He proposed that election by a two-thirds majority of the General Assembly would make the body more accountable and representative.⁵⁴ Requiring a (p. 189) large majority would stop the practice of electing members based on political alliances, and instead focus attention on positive criteria for membership. His proposals were supported by other stakeholders such as NGOs⁵⁵ and scholars.⁵⁶

The second key area requiring reform was the body’s mechanisms and proceedings. Observers suggested that the Council could overcome the Commission’s flaws by being a principal organ of the UN.⁵⁷ In May 2005 the Secretary-General commented that the Council ought to be a principal UN organ in order to ‘raise human rights to the priority accorded to it in the Charter’.⁵⁸ As a principal organ, the Council would have independence, resources and powers not available to the Commission. But that shift would have required changes to the UN Charter, a matter not easily undertaken. The Secretary-General emphasized the need for the new Council to be a standing body, with a permanent meeting place and specific resources entirely devoted to it.⁵⁹ That could be achieved through being either a UN principal organ or a General Assembly subsidiary body.⁶⁰

Emphasis on the HRC being created as a standing body stemmed from the need for the Council to hold regular meetings dealing with an ongoing agenda and to be able to convene at short notice to deal with crisis situations.⁶¹ The emphasis on the body’s ability to do more than simply ‘fight fires’ reflected an ongoing impetus that the Council’s mandate be extended to include human rights protection. Regular meetings would allow the Council to investigate grave situations, increasing this capacity. Informal consultations also highlighted the need to increase the body’s capacities for standard-setting, assistance, and other forms of human rights promotion.⁶²

Proposals for a standing body meeting regularly would, however, emphasize the difference in resources between powerful and weak states. Economically less developed countries would not be able to afford permanent delegations, or at least those of the size and expertise of richer countries. The difference in member states’ resources and personnel, and therefore their ability to engage with the Council and its work, mirrored the already apparent power differentials within the body. The EU proposed between four and six annual sessions lasting a minimum of twelve weeks in total. As a group of powerful and rich nations, the EU was less concerned with state resources than many of those opposing longer and more frequent sessions. Other states proposed fewer sessions with fewer minimum weeks, although almost all agreed on the necessity of regular sessions and the ability to convene special sessions at the request of the Council.

Perhaps the most innovative reform proposals focused on peer review of all states’ human rights records. Universal review was proposed to combat criticisms of selectivity (p. 190) and bias levelled at the Commission’s members and at its monitoring work. Underlying this mechanism were the principle of universal standards and the need to ensure compliance with such norms. State and non-state actors repeatedly expressed the need for the cooperation and consent of the states being reviewed, emphasizing the need for an inclusive and interactive approach.⁶³

The Secretary-General introduced the concept of ‘universal peer review’ as part of his proposal to disband the Commission and create a replacement body. The High Commissioner for Human Rights, Louise Arbour, emphasized the importance of peer review in her speech at the Commission’s final session.⁶⁴ Arbour insisted that peer review, alongside other reforms, would combat politicization, allowing the new body to deal with human rights in a non-selective and credible manner.⁶⁵

(c)  The Council’s establishment

Negotiations on the new Human Rights Council took place between 2005 and 2006. Alston maintains that there was general agreement on the Commission’s failure, the need to establish a new body, and the requirement to strengthen UN human rights machinery. However, he observes that there were serious disagreements about why the Commission failed and what the Council should do to overcome these flaws. Alston argues that the final resolution only gave broad guidelines regarding the Council’s procedural and institutional arrangements because of this failure to agree on what had previously gone wrong with the human rights body.⁶⁶

On 15 March 2006 the General Assembly passed Resolution 60/251.⁶⁷ That Resolution is the Council’s constituent instrument and sets out what the Council is mandated to do; the manner in which it is mandated to achieve those ends; the mechanisms it must use or create; and the powers afforded to the Council. The main changes from the Commission found in Resolution 60/251 are the HRC’s founding principles, membership and election issues, procedures and mechanism, and the universal periodic review (UPR) mechanism, which seek to respond to some of the most serious criticisms levelled at the Commission.

Compromise was key to the final text of Resolution 60/251. Controversial issues included the suspension clause, membership and election, and the UPR. While the compromise agreement satisfied most states in terms of voting in favour of the Council’s creation, it was clear that many of the most polarizing issues were inadequately addressed and that the final product sought to paper over the cracks of those ideological and practical disagreements.

(p. 191) Not all countries supported Resolution 60/2151. The US voted against the Council’s creation. Crook⁶⁸ commented that, despite the US strongly advocating replacing the Commission, it did not believe that Resolution 60/251 sufficiently safeguarded against states with poor human right records becoming members of the HRC.⁶⁹ Ambassador John Bolton commented that the US ‘did not have sufficient confidence … to be able to say that the HRC would be better than its predecessor’.⁷⁰ Despite voting against the resolution, the United States did not seek to introduce proposed changes to the draft resolution, a tactic that would have derailed the entire process.⁷¹ As the US did not withdraw funds from the Council despite voting against its creation, observers have argued that the US position was in fact a ‘soft no’.⁷²

Importantly, when thinking about the place that human rights holds in the UN system, Resolution 60/251 creates the Council as a subsidiary organ of the General Assembly to assist the Assembly in fulfilling its mandate on human rights through providing a body solely focusing on human rights issues. The General Assembly retains organizational power and control over the Council’s structure and activities,⁷³ and the Council directly reports back to the General Assembly.⁷⁴ Those reports identify key human rights issues for the Assembly to discuss and act upon. The report is heard by all UN members who can then participate in debates, offering an opportunity for non-members of the Council to play an active role on its work. The Council’s lack of autonomy can be compared with, for example the Human Rights Committee—a treaty-based body of independent experts that monitors implementation of the ICCPR by states party to that treaty—which retains a degree of autonomous decision-making not found within the Council.⁷⁵

Before turning to examine how the Council works in practice, it is crucial to understand the place that it holds within the UN system as a result of it being a subsidiary body as opposed to a principal organ. The primary relationship that the Council has with a UN organ is with the General Assembly. Despite being the Council’s parent body the Assembly was not supposed to interfere with the work of its subsidiary other than in exceptional circumstances, for example when a resolution concerned states who were not members of the body and who did not have representation in Geneva at the time that resolution was passed. This sort of arrangement had functioned fairly well with the Commission whose parent body, the ECOSOC, steered largely clear of its activities.

(p. 192) The Assembly holds the power to revise or overrule Council resolutions, but this was supposed to be a theoretical rather than practical power. However, on 18 December 2013 the General Assembly ‘deferred consideration’ of a Council Resolution ‘Cooperation with the United Nations, its representatives and mechanisms in the field of human rights’.⁷⁶ That resolution was adopted by the Council in September 2013 and focuses on protecting human rights defenders, particularly in relation to intimidation and reprisals. However, at the General Assembly December session, Gabon, on behalf of the African Group, tabled a resolution, ‘Report of the Human Rights Council’ that was adopted with a narrow margin of ninety-four in favour, seventy-one against, with twenty-three abstentions.⁷⁷ As a result, Resolution 24/24 was not adopted. At the debate that followed, Cuba stated that ‘the Assembly had created the Human Rights Council and therefore had full authority to review its work’. Zimbabwe also said that ‘the General Assembly could correct the work of the Human Rights Council’. The EU, the US, Switzerland, Norway, Costa Rica, and other democracies warned of ‘undermining the United Nations human rights institutional architecture’ and ‘setting a damaging precedent’.

There was also a general understanding that the Assembly would not duplicate the Council’s work in its ‘Third Committee’, which focuses on social, humanitarian, and human rights issues. That informal arrangement has not been upheld. The Assembly also undermined the Council’s work in a more passive manner through duplication in the Third Committee. Many issues are discussed in both bodies but without reference to one another’s work, leading to repetition and often divergence in outcomes. It is clear that despite the Council reporting to the GA and feeding into its work, there are significant issues in the relationship between the two bodies. This once again raises the fundamental question as to why the Council is not a principal UN organ, and whether its position as a subsidiary body undermines the impact of its work on the wider UN system.

Owing to the Council’s position as a subsidiary body, it cannot simply report to nor have a direct relationship with organs other than the Assembly. The Council does not play as strong a role as it could or even ought to in protecting rights during crisis situations owing to it having to feedback into other parts of the UN via the GA rather than having direct access to other bodies. In particular, that lack of access affects the extent to which the Council’s work can play a role in peace and security issues. Notably, the Council does not have access to brief the Security Council other than when individuals are invited to do so. Moreover, Council reports, resolutions and fact-finding documents are not referred to other than in exceptional circumstances. As a result there is a failure to take into account human rights considerations or to heed the early warning system that human rights monitoring provides in relation to situations likely to present a threat to international peace and security. While this issue has been discussed within the UN (p. 193) human rights system, particularly in relation to mainstreaming human rights in the Sustainable Development Goals, there are few signs of changes or even awareness of the issue within bodies such as the Security Council.

The Council’s composition and organizational structures were the two most contested issues during discussions about reforming the main UN human rights body. In the end, most of what appeared in Resolution 60/251 reflected attempts to compromise between two very different, competing visions of what the Council would look like and how it would work in practice. Those compromises, however, resulted in changes that were not adequate to address the core problems and challenges that had beset the Commission on Human Rights.

(a)  Membership

During reform negotiations there had been real and difficult discussions about whether the Council would better be served, and have more legitimacy and credibility, if it was an expert or an intergovernmental body. The final decision that the Council ought to be intergovernmental reflected concerns that an expert-led body would lack credibility and legitimacy with many countries, particularly those from the Global South which maintain that the international human rights system is dominated by Global North ideologies. As a result, countries are elected to the Council and are represented by government delegates.

The second core decision was the size of the Council. Again, there were polarized views about whether it ought to be universal or a very small body. Yet the final decision was one of compromise that lost the best of both worlds because it neither opened the body up to all member states nor shrunk it sufficiently for its work to be as minimally impacted by politicization as possible.⁷⁸ Council membership was determined to ‘consist of forty-seven Member States’,⁷⁹ as compared with the Commission’s fifty-three.

Reforms to the Council’s composition sought to avoid politicization and de facto permanent membership, as well as to ensure an accurate representation of the ideologies and voices and UN member states. Membership was therefore to be for fixed terms and ‘based on equitable geographical distribution’.⁸⁰ At the UN there are five regional groups, established in 1963⁸¹: the African Group; the Asian Group; the Latin American (p. 194) and Caribbean Group (GRULAC); the Western European and Other Group (WEOG); and the Eastern European Group. At the Council the African Group hold thirteen seats; East European countries received six seats; GRULAC, eight; Asia, thirteen; and Western Europe and Others, seven. Comparing HRC membership with Commission membership, the African Group’s percentage share (28 per cent) remained the same, the Asian Group (28 per cent) gained an extra 5 per cent and Eastern Europe (13 per cent) gained 4 per cent. Latin American states (17 per cent) lost 4 per cent, as did Western Europe and Others (15 per cent).⁸² African and Asian states hold the majority of Council seats, giving these groups significant power.

Proportionate geographic representation means that the body is no longer dominated by Global North states, but it has not addressed the underlying issue that certain groups or political blocs are able to dictate proceedings because of their numbers. When negotiations took place on the Council’s composition, WEOG realized only too late in the discussions that the African Group and Asian Group together would hold an overall majority of seats and ‘what the loss in terms of geographic distribution would mean for the group of Western states in a smaller Council’.⁸³ The Global South controls the Council, with Global North states marginalized owing to many belonging to WEOG and only a few, such as Japan, coming from other regional groups.

Membership is the most crucial component of the Council in terms of its work and its legitimacy. Having government delegates sit at the Council means that the body’s work in any given session depends on the national, regional and international objectives of each individual member state. As such, the Council’s membership fundamentally affects its work and credibility during any given session, with individual states or groups of countries able to direct or derail discussions according to their own objectives.

When it comes to the impact of membership, the biggest problems are that European Union members, tied to a common position, frequently have been passive as a bloc—with the exceptions, perhaps, of Germany, Ireland, and the UK. Latin American and Caribbean countries are geographically too far away from Geneva for most of them to play a strong role at the Council, and African states are too weak to act as a cohesive bloc on issues such as migration that impact upon the region. But the impact of membership extends outwards to external perceptions of the Council and its work. The Council’s credibility, then, depends largely on the governments represented within the body and the degree to which they are viewed by other countries and by observers.

During the Council’s initial years, states inimical to dominant liberal understandings of human rights and with their own poor domestic human rights records, took seats on and dominated the Council. China, Cuba, Egypt, India, and Russia were vocal members of the Council, and were rarely challenged. The US, in contrast, refused to engage with the new body until the change of administration with the election of (p. 195) President Obama. The second wave of membership brought in a broader range of states in terms of human rights ideologies and forms of governance, but more recently the five permanent members of the Security Council, as well as countries like Saudi Arabia, have regained Council membership and proceedings have returned to more polarized and aggressive discussions rather than the more cooperative and constructive sessions that occurred during the second wave of membership.

(b)  Elections

The new rules on elections sought to end the practice of regional groups strong-arming the body into accepting states as members through presenting closed slates of candidates. A closed slate provides only the same number of candidates as there are seats available to a group, thus meaning that all candidates are successful in their bid. The new rules set out that members are ‘elected directly and individually’,⁸⁴ supposedly allowing a candidate to be rejected by the General Assembly. Election occurs ‘by secret ballot’, preventing fears of repercussions for abstaining or voting against a state’s election.⁸⁵

By allowing states to abstain or vote against candidates in a secret ballot, and thus re-open nominations, it was expected that the Council would block known grave abusers from securing membership by the majority of states. In practice, however, regional groups have continued to negotiate internally and present the same number of states as there are seats, and the General Assembly has continued to vote for those countries rather than re-open nominations. Abstentions or votes against states are used all-too infrequently, thus undermining a crucial tool in the arsenal against known abusers sitting on the Council. In particular, the EU has failed to vote against states that are known abusers becoming members of the Council, despite the clout held by that bloc.

To become a Council member, a country needs the votes of the majority of General Assembly members. Observers criticized the decision that states would only need a simple majority of the General Assembly instead of the proposed two-thirds requirement,⁸⁶ insisting that it would allow known human rights abusers to gain membership. However, the lower threshold arguably had little practical effect: Cuba, China, Russia, and Libya, all have poor human rights records, but each received more than two thirds of the vote.⁸⁷ The Czech Republic and Poland, on the other hand, secured far fewer than two thirds of the vote⁸⁸ despite having better human rights records than other candidates. It is clear, therefore, that political rather than human rights considerations prevailed during elections and that the higher voting threshold and soft criteria have (p. 196) had little impact on known abusers being elected to the body. The elections did, however, result in some known abusers failing to gain membership. Iran withdrew its candidacy once it became clear that it would not gain even a simple majority, while Belarus was defeated during the vote.⁸⁹ Those states’ failure to be elected could arguably be based on their human rights records but, bearing in mind the known abusers which did gain membership, it is more likely attributable to political factors.

State members are elected ‘for a period of three years and shall not be eligible for immediate re-election after two consecutive terms’.⁹⁰ This ensures that no state has de facto permanent membership, which the five permanent Security Council members had at the Commission. A two-term limit also encourages more states to engage with the Council as members, allowing smaller states and different forms of political systems to be represented. In practice we have seen that less powerful countries have successfully stood for membership, some of which—like Somalia and Sierra Leone—have played significant roles in the Council’s work.

(c)  Membership criteria

Another proposed method for blocking grave human rights abusers from becoming Council members was through specifying criteria for such membership. Although all states can seek Council membership,⁹¹ there are criteria that must (‘shall’) be taken into account in elections.⁹² Those criteria are ‘the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments made thereto’.⁹³ The ‘soft’ criteria for membership achieves a compromise between the views of various stakeholders, it does not adequately deal with the issues that beset the Commission’s membership. It is interesting to note Alston’s comments that formal membership criteria were abandoned because they were viewed as unworkable and ineffective in practice.⁹⁴

The new provisions seek to set standards for membership, indicating the importance of members’ national human rights compliance and the hope that members will be elected according to human rights criteria rather than political motivations.⁹⁵ Arguably, certain countries did not run for election owing to these criteria. Membership no longer protects human rights abusers, as the criteria results in membership providing ‘less cover than in the past’⁹⁶ because states’ human rights records are scrutinized prior to election. Weiss notes that Sudan, Libya, Syria, Nepal, Egypt, Zimbabwe, Uzbekistan, (p. 197) North Korea, and Belarus,⁹⁷ all former Commission members, did not place their hats in the ring for initial elections. However, Gaer insists that membership from the outset of states such as China, Cuba, and Saudi Arabia undermined the Council’s claim regarding improved membership.⁹⁸

As states realized that little notice was taken of the soft criteria other than for pariah states such as Iran and Syria, who were diplomatically discouraged from standing for election, there has been an increase in the number of known abusers seeking and gaining membership of the body. The soft criteria have kept out the very worst abusers that are not world powers, but the Gulf states, China, Russia, Cuba, Venezuela and many other countries have continued to sit at the body. It is clear, therefore, that political and economic motivations take precedence over human rights criterion.

The ‘soft’ membership criteria regarding ‘the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments’ should be read alongside further accountability provisions that members ‘shall uphold the highest standards in the promotion and protection of human rights’.⁹⁹ Indeed, those provisions reiterate that Council members ‘shall uphold the highest standards in the promotion and protection of human rights’.¹⁰⁰ It then gives a formal mechanism for assessing whether states are complying with this requirement: all Council members ‘shall … be reviewed under the universal periodic review mechanism during their term of membership’. That is a crucial difference from the Commission, where membership was often sought by states as protection from scrutiny of their human rights records. Alston observes that one of the Council’s major challenges regarding member accountability is the best method to encourage states to elect members based on human rights records.¹⁰¹ He insists that educating states about human rights will be key to ensuring that this occurs; however, it is hard to imagine that education will give way to the prioritizing of human rights over political or trade alliances.

One way in which the soft membership criteria can be enforced, albeit ex post facto, is through the power to suspend Council members.¹⁰² Although this provision signals that grave violations may be dealt with through suspension, as occurs in some other international organizations,¹⁰³ it is unlikely to be used as often as warranted owing to political and diplomatic reasons as well as the difficulty in gaining a two-thirds majority of the General Assembly. Exclusion has thus far been used only to limited effect, although even that is an improvement on the Commission where no similar power existed. Alston insists that the clause ‘is an important symbolic component in the sense that it would allow for any country that is widely condemned for its human rights record to be suspended from membership’.¹⁰⁴

(p. 198) In 2011 Libya became the first state to have its membership of the Council suspended. While some might argue that this suspension demonstrates both that the mechanism works and is useful, the question must be asked as to why it took five years for this, or indeed any, suspension. It took widespread condemnation, by the Security Council, NATO, the Arab League, the Organisation of Islamic Cooperation and the media, of Libya’s crimes against humanity for the GA to suspend that state from the Council. Therefore, far from testifying to the utility of that mechanism, Libya’s suspension arguably raises questions as to the General Assembly’s previous and continued inaction on violations within that country and other similar states.

(d)  Council Presidency

As an intergovernmental body, even though the Council is supported by the Secretariat—specifically the Office of the High Commissioner for Human Rights—it is presided over by state delegates. The Council President, three Vice Presidents, and a Rapporteur (the ‘Bureau’) change annually and are appointed according to rotating regional group allocation. They serve in their individual rather than national capacities, although of course in practice they are viewed by most observers as representatives of their states. When known human rights abusers seek these positions questions are asked about the Council’s legitimacy. Saudi Arabia seeking the Presidency of the Council—a move that was blocked, diplomatically, in 2015—gained significant attention from the media and observers. However, that attention is partly owing to Saudi Arabia’s global position and can be compared with almost no attention being paid to Mauritania becoming a Vice President despite that country being a significant abuser that, for example, still retains state-condoned slavery.

The President and the Bureau facilitate procedural and organizational matters, and will intervene on such issues during debates. A strong President ensures that the body is not overwhelmed by politicization and group tactics, whereas a weak President oversees a year of inaction and lack of progress in achieving the Council’s mandate.

The first President, Ambassador Luis Alfonso de Alba Góngora (Mexico), guided the body through a year of institution-building, and his strength both on the podium and behind the scenes ensured that the body did not fail from the outset, as many observers believed would happen. Ambassador de Alba ensured that the Institution Building Package was passed—a task that was beset with difficulties in terms of finding compromise and balance between different states’ competing views of the Council—and that the modalities of work were respected and implemented. But he was not the only President to impact and direct future working practices. In 2015 Ambassador Joachim Rücker (Germany), the tenth President, ensured that new practices were incorporated when he began a system of informal briefings to the Council by the High Commissioner for Human Rights. He also changed the practices on Special Procedure appointments by giving reasons for why individuals were chosen to become mandate holders—thus (p. 199) setting a precedent for future Presidents to have to explain similar decisions that they have taken.

Weaker presidents have undermined the body’s work. One key tactic used by member states is hijacking discussions by raising technical and procedural issues that block information-sharing and action being taken. Weaker presidents have not controlled this issue, for example in the first week of the 25th Session (March 2014) more of those procedural matters were raised through points of order than in all sessions combined in the previous year. Similarly, weaker presidents have been unable to stop work being undermined such as when states members of the Council voted to block the President’s list of new Special Procedures appointments in 2014, thus grinding to a halt the activities of one third of the Special Procedures system.

(e)  Council sessions

The Council was mandated to meet more regularly than the Commission and for longer periods: the HRC meets ‘no fewer than three’ times per year ‘for a total duration of no less than ten weeks’.¹⁰⁵ It was hoped that regular meetings would allow adequate time to deal with agenda items. Moreover, as the Council is a standing body, unlike its predecessor it has permanent resources including meeting rooms and administrative staff, all of which can be used for long-term projects or at short-notice and there are many informal and inter-sessional meetings that occur throughout the year.

Council sessions are scheduled to be held in March, June, and September each year, although there have been instances where additional sessions have also been held. Special Sessions and Universal Periodic Reviews take place outside of regular sessions, as do some but not all informal meetings and negotiations. The regular sessions follow set patterns established within the Council’s permanent agenda, and draft resolutions that are tabled during the sessions are voted upon and adopted (or rejected) at the end of the sessions. The IBP sets out the Council’s permanent agenda to be followed at each regular session, establishing ten fixed themes (Items) that structure the core of Council sessions.¹⁰⁶ Under agenda Items 3 and 4 member states may raise any issues relating to protection or promotion of any thematic human right (Item 3) or country-specific human rights (Item 4). The agenda also focuses Council attention on specific human rights areas that directly correlate to various aspects of Resolution 60/251. Item 10 reflects the body’s duty to promote human rights through technical assistance and capacity-building. Agenda Items 2, 5, and 8 reflect the body’s duties to interact with wider UN machinery and non-state actors. Item 6 solely focuses on the UPR.

One method for raising emerging, under-developed, or contentious human rights issues at regular sessions is through convening thematic panels. There has been a growing number of panels since 2011, with themes ranging from drones to children’s (p. 200) right to play. Panels bring together experts, state representatives and UN staff to discuss and debate topical issues in international human rights. They may develop into intergovernmental working groups, special procedures mandates, or even declarations that will form the basis for treaties. Panels on rights of older persons¹⁰⁷ and on business and human rights,¹⁰⁸ have led to increased awareness and development of those issues within the human rights sphere, and have contributed to the development of new international law and legal instruments. Panels provide an opportunity to interrogate, discuss and share information about new and timely human rights matters. Critics of panels point to politicization, and their use for objectives unrelated to protecting and promoting human rights, as will be explored in detail regarding states’ behaviour during the panel on LGBT rights and the subsequent convening of a panel on traditional family values.

The Council has also skilfully utilized its ability to bring in a range of non-state actors to engage with human rights protection, promotion, development and mainstreaming. That role is central to the body’s mandates and is a key method for ensuring that its work is as effective as possible. Council discussions have incorporated interventions, expertise and advice from the High Commissioner for Human Rights and his staff, other UN agencies and bodies, independent experts, NGOs, civil society actors, and National Human Rights Institutions.¹⁰⁹ In bringing together a range of voices and expertise, the Council has ensured that its discussions and work incorporate a multi-layered approach to its mandates and that its activities are relevant and useful at the international, regional, national, and local levels.

NGOs engage with the Council through speaking in formal discussions and through side-events held in rooms near to the Council Chamber during regular sessions. The NGO speakers list enables accredited organizations to address the Council formally, although only after all countries which wish to do so have spoken. Many delegates pay significantly less attention to NGO interventions than to those by other countries, with some leaving the room and some others wandering the Chamber talking to one another or on their cell phones. There have been controversial interventions from NGOs, notably from UN Watch which was frequently interrupted by some states raising procedural issues, and from the International Service for Human Rights which in 2014 attempted to use its allotted speaking time to hold a minute’s silence for a Chinese activist who had died after being imprisoned whilst trying to leave China to attend that country’s UPR session.¹¹⁰

(p. 201) NGO side-events occur during regular Council sessions and take place in rooms adjacent to the Council. While many of these events provide useful information and engagement on specific issues, the increase in the number of them means that no delegation—even the largest ones—can attend or monitor all of them. NGOs, and indeed independent observers, find it far easier to gain accreditation for the Council than for the sessions of any other bodies in Geneva or indeed in New York. This, of course, is directly related to the negotiations surrounding the Council’s creation and recognition of the need for accessibility and transparency that resulted not only in greater ease of accreditation but also in the live webcast and archiving of those videos to enable Council sessions to be accessed across the world. However, the ease of accessibility to Council sessions has recently resulted in lengthy queues and delays—sometimes up to 6 hours—for delegates, observers and NGO activists seeking to obtain day or week passes during Council sessions.

The number of Council sessions and inter-sessional activities address a main Commission grievance as do the innovative mechanisms and the additional events provided by non-state actors. However, they also place a significant economic burden upon any member state that does not have a wide range of resources within Geneva. An issue that was not identified at the time of the Council’s creation is the disparity of resources between state members of the Council and the impact that has on their engagement with the body. Some countries—particular economically weaker ones or middle income states located geographically far away from Geneva—do not have significant representation within Geneva. Of 193 UN member states, only 176 have permanent missions in Geneva, with the remainder not permanently represented there at all.¹¹¹ Many more countries have a permanent representative with few or no supporting advisers or teams,¹¹² and that individual will be responsible for monitoring and engaging with all of the specialized agencies not just the Human Rights Council. The work that any such individual may undertake, even where s/he is exceptional and committed such as the permanent representatives of Sierra Leone and of Somalia in recent years, is almost wholly constrained.

Economically stronger countries, particularly those geographically close to Geneva, typically have large missions to Geneva with staff and even teams covering different issue areas able to advise and brief the permanent representative. It becomes clear, therefore, that the care taken to ensure that the Council’s composition affords proportionate geographic representation through membership does not mean that there is parity of representation. That minimizes the impact not only that individual states may have as members of the Council but also the strength of certain regional groups, such as the Group of Latin America and Caribbean states, in the context of informal negotiations, inter-sessional work, and activities within the Council chamber.

(p. 202) There has been some attempt to address this, including initiatives to support members with small or solo delegations. Resolution 19/26¹¹³ established the ‘Voluntary Technical Assistance Trust Fund to Support the Participation of Least Developed Countries (LDCs) and Small Island Developing States (SIDS) in the work of the Human Rights Council’. The fund provides training, technical and financial assistance for individuals from those states to access Council sessions. Initiatives such as those, however, can only go a small way in bridging the gap between states. Ultimately a sizeable minority of states are either unable to stand as members, owing to the resource implications concerned, or are unable to engage to anywhere near the same extent as their counterparts on the Council, thus leaving the body weighted towards the work and objectives of its economically stronger members.

The very nature of international organizations is political, and therefore some degree of politicization will always exist. Moreover, political objectives will always be involved where a body or organization is intergovernmental and where government delegates represent their countries. Being comprised of government delegates, the very nature of the Council’s membership is political. Political appointees have little concept of ‘functionalism’ because their responsibility and accountability is to their national governments rather than to the UN.¹¹⁴ Oberleitner remarks that it is unsurprising and somewhat inevitable that an intergovernmental body comprised of state representatives acts along political lines.¹¹⁵

The difference between politics and politicization hinges on the extent to which objectives are related to the subject matter at hand. Lyons et al define politicization of international organizations as the introduction of unrelated controversial issues by countries seeking to further their own political objectives¹¹⁶ that are unrelated to the discussions at hand. Those who accuse a body of being politicized frequently deploy a liberalist stance, pointing to the ideals of a body’s mandate rather than accepting the realist approach that countries will use intergovernmental fora to advance national objectives. However, pernicious politicization occurs when states introduce unrelated objectives that undermine the body’s mandate. Where extreme politicization occurs bodies may lose credibility, become ineffective, or even undermine the legitimacy of their own processes.¹¹⁷ Generally, the more controversial issues dealt with by a body, (p. 203) the more likely it is to become politicized owing to cultural sensitivities and regional geographical differences giving rise to varying stances on such issues.

States’ actions at the Council demonstrate politicization in the bodies’ work. Politicization has been apparent through advancement of political objectives, groups shielding their allies from Council scrutiny, and politically motivated attacks on certain states that have obstructed the HRC from taking action in other, needed, areas.¹¹⁸ The Council’s composition contributes to its politicization: developing states have strong representation and forge alliances through groups, ensuring power as a collective despite being individually weak. Moreover, with the body remaining intergovernmental, rather than expert, there has been the continued use of group tactics, such as repetitious statements, bloc voting, and vote-bartering.¹¹⁹

Although politicization can undermine the work of the Council, many victims of human rights violations would be in a far worse position were it to cease to exist. Assessment of the Council necessarily requires an examination of the extent to which politicization undermines the body’s fulfilling its mandate. Criticism of the Council in this regard does not negate the body’s positive achievements, but rather seeks to understand the body’s processes and to identify areas for improvement. The use of group tactics to advance political agendas and the impact of regional and political aims on the Council’s work and proceedings are key to understanding the body. Furthermore, the Council must be examined in light of states’ use of political tactics to direct the body’s work and proceedings, to introduce unrelated issues into discussions, and to either shield states from scrutiny or to ensure disproportionate focus on states for political motives.

(a)  Groups and alliances

Resolution 60/251 focuses on geo-political regional groups in apportioning seats to members, but those are not the only powerful political coalitions operating within the Council.¹²⁰ Non-geographically-based alliances occur among both developed and developing states, although the latter have made more effective use of the technique owing to far greater need for collective strength on their part.¹²¹ The Non-Aligned Movement and the G-77, which were the traditional Global South political blocs during the Cold War,¹²² remain loosely allied at the Council but largely have given way to the Organisation of Islamic Cooperation, the G20+, the BRICS, and the Like-Minded (p. 204) Group of Developing Countries in terms of where the political power is vested. Of those groups, the OIC and the LMG have been the most active in terms of politicizing the Council to achieve objectives largely or fully unrelated to human rights.

The Organisation of Islamic Cooperation was established in 1969 to unite Muslim countries, and has fifty-seven member states spanning four of the five regional groups.¹²³ Many of its members are influential within other groups or alliances. As such, the OIC has far-reaching political power at the Council. Traditionally the OIC has agreed collective group positions that advance regional aims, in the interests of the governing regimes, although that has lessened somewhat since the ‘Arab Spring’ of 2011. OIC members have consistently supported allied members, either through blocking scrutiny of domestic abuses,¹²⁴ or shifting the blame onto non-state actors,¹²⁵ or seeking to keep the spotlight on Israel in order to shield nearby states from similar scrutiny.

The Like-Minded Group is an informal alliance of approximately twenty to twenty-five states that purport to represent ideologies and cultures from across the developing world. They, too, come from four of the five regional groups and the bloc has considerable strength owing to the regional alliances held by its members. Many of the states within that Group, including China, Cuba, Egypt, Iran, India, Sri Lanka, and Zimbabwe,¹²⁶ are themselves vocal critics of the current international human rights law regime and commit grave and systematic human rights abuses at the domestic level.

The EU as a political bloc set a precedent for the rise of regionalism at international bodies, including at the Commission.¹²⁷ The Treaty of Lisbon¹²⁸ requires EU member states to seek and advance common foreign policies,¹²⁹ and from 1993¹³⁰ they have been required to speak with one voice, which occurs by negotiating and compromising to find common ground between member states.¹³¹ The common position’s often fragile nature greatly affects EU states’ ability to negotiate with other states or groups and has contributed significantly to EU passivity at the Council.¹³²

(p. 205) Weiss argues that groups and alliances obstruct the UN’s work, with the North-South divide impeding a ‘sensible regrouping of the majority of voices, which should change from issue to issue’.¹³³ However, Abebe, a delegate to the Council from Ethiopia, insists that such subgroups are necessary because human rights discourse and practice are skewed towards Western experiences, and therefore developing states require subgroups in order to represent their views at and enable their participation within human rights bodies.¹³⁴ The alliances have generally had a negative effect on the Council’s ability to take action.¹³⁵ States holding membership of more than one group, especially those with large membership, have many allies to protect them from action. Alliances between groups remain, as occurred at the Commission, which often results in what Schrijver identifies as ‘the Rest against the West’.¹³⁶ OIC dominance of proceedings, the EU’s passivity, and the undermining actions of the LMG have had a negative impact upon the Council’s ability to fulfil its mandates.¹³⁷

(b)  Selectivity, bias, and partiality

One main method that the Council’s creators sought to deploy to combat politicization was the introduction of ‘founding principles’ as guidelines for the body’s work. Those principles were part of yet another compromise agreement during reform discussions about competing visions of the Council—and particularly its composition. The founding principles, like the soft membership criteria set out in Resolution 60/251, sought to appease both sides in the debate about membership and representation. Those principles sought to address the concerns that an intergovernmental body open to all states would have the same problems that beset its predecessor, but they have largely failed.

The founding principles are first set out in the Preamble to Resolution 60/251,¹³⁸ which stresses ‘the importance of ensuring universality, objectivity and non-selectivity … and the elimination of double standards and politicization’. Repetition of these principles throughout the Resolution¹³⁹ underscores that they apply to all aspects of the body’s mechanisms, proceedings, and work.¹⁴⁰

The founding principles also emphasize the need for dialogue and cooperation. This reflects the Global South’s concerns that human rights are an issue of exclusive domestic jurisdiction, and that international human rights are often used as a neo-colonial tool of oppression against states with limited human rights capacities or capabilities. Ensuring (p. 206) states’ consent and cooperation is an integral feature of the Council’s work and proceedings. It is based on the idea that such cooperation is required to ensure that states can, and indeed will, comply with human rights obligations.

The Council’s founding principles impose legal requirements. Yet, owing to the Council being a political body, governments must accept and apply those principles for change to occur.¹⁴¹ The principles are open-ended and somewhat ethereal, indicating that they are guidelines rather than precise requirements. They reflect the criticisms levelled at the Commission, and stem from interstate negotiations on the Council’s creation. The Council’s founding principles divide into two broad categories: principles that guide its work on human rights, and principles that guide its relationship to individual states. The principles concerning human rights work seek to ensure that the work is even-handed and non-selective. The principles aimed at the Council’s relationship with states seek to ensure effective fulfilment of its mandate. The founding principles ‘are valuable reminders of how the promotion and protection of human rights should be approached in the United Nations’.¹⁴²

Selectivity, bias and lack of even-handedness have impacted upon the body’s work throughout its existence. Yet selectivity and bias must be expected of a universal body consisting of members from across all UN regional and political groups and where many political views on human rights are represented. What is most concerning is not that the selectivity and bias exist, but rather the extent to which they are apparent throughout much of the Council’s work. Indeed, it is that selectivity and bias that has given rise to significant criticisms of the Council from academics, civil society and the media.

Failure to treat states in an even-handed manner is a main way in which the field of human rights becomes politicized. Alongside human rights bodies, such politicization can occur within, for example, NGOs¹⁴³ and the media.¹⁴⁴ Heinze notes that the concept of even-handedness has not adequately been explored,¹⁴⁵ and provides a three-part test to identify lack of even-handedness.¹⁴⁶ Under the third prong of his test, selection of human rights violators becomes illegitimate when motivated by a ‘political, social or cultural conflict’ unrelated to the content of the human rights at issue.¹⁴⁷ The ongoing, overwhelmingly disproportionate focus on a state such as Israel, in both the Commission and the Council, often as a pretext for side-lining violations claiming far greater numbers of victims and far more egregious abuses than the Israel-Palestine conflict has done, raises serious questions about the Council’s adherence to its (p. 207) mandate. Even-handedness does not require equal attention to be devoted to all states, but rather that the level of condemnation should be ‘roughly proportionate to actual levels of abuse’.¹⁴⁸

(c)  Country-specific situations

A vital aspect of the Council’s work is scrutiny of country situations where grave or ongoing violations occur. This area is perhaps the most open to politicization owing to country-scrutiny depending as much on international relations as on the merits of such scrutiny taking place. There are three politicized ways in which the Council deals with country situations. It excessively scrutinizes some countries, altogether ignores other abusers, and shields yet others from action taken against abusive regimes. When the Council focuses excessive and disproportionate attention on a particular state, it creates an ostensible ‘success story’.¹⁴⁹ Often excessive scrutiny provides significant political and diplomatic pressure that forces a country to cease abusing human rights. The point here is not that the states under the spotlight do not merit attention but rather that the UN’s constant focus on one grave human rights situation masks its failures elsewhere.

Israel¹⁵⁰ and Syria fall into the first category, with the Council disproportionately focusing on those states, at various times, as compared with other similar or worse situations elsewhere. Those conflicts have killed, injured, displaced, and otherwise seriously harmed large numbers of civilians, and of course are deserving of attention within the Human Rights Council, and more broadly within the UN. However, the disproportionate scrutiny of those two conflicts as compared with other, similar situations¹⁵¹ with similar if not many more victims, at least in part is owing to politicization of the Council.

OIC members dominate at the Council. They are the drivers behind the excessive focus on Israel and, as will be explored later, on Syria.¹⁵² In relation to Israel, their objectives include political, religious, cultural and regional ties with the Palestinians and with affected neighbouring states. Crucially, those countries also use Israel to divert attention away from systemic violations within influential OIC members such as Pakistan, Algeria, and Egypt. Another reason that some countries overtly politicize the UN in relation to Israel is because of its ties with the US. Israel is seen as the US foothold (p. 208) in the Middle East. That relationship encourages anti-US states, such as Cuba, China, Venezuela, and Russia, to use Israel as a way of attacking US hegemony and interference. The Cold War might long be over, but the practices learnt during those times still persist.

That disproportionate attention can be compared with the body’s failure to address grave violations in countries that yield political power in terms of alliances with many Council members. Such countries include China, Russia, and Egypt, amongst others, all of which are known grave abusers and where crises and ongoing abuses have altogether been ignored by the Council. When looking at the Council’s composition, it is clear why China’s abuses in the lead-up to the Beijing Olympic Games (2008), Russia’s violations during incursions into Georgia and South Ossetia (2008), and the grave abuses during Egypt’s revolution have not been discussed at the body. Those countries have strong alliances across regional groups and political blocs that dominate the Council and therefore are able to shield them from scrutiny and action.

Other countries, such as Sudan and Sri Lanka, have received some attention but their allies have shielded them from significant criticism or action and instead have deflected the focus onto human rights abuses committed by non-state actors within those countries. Sudan is a member both of the African Group and of the OIC, which are respectively the largest regional group and largest political bloc at the Council. Sudan therefore received significant support from allied states, but that support did not fully shield it from attention. The weight of evidence meant that violations could not be swept under the carpet and that Darfur could not be kept off the Council’s agenda. Instead, Sudan’s allies ensured that the Council apportioned blame on other actors for abuses in Darfur and called for capacity building and assistance to Sudan’s government.

The main problem with this approach is that it is used as a tactic to deflect attention away from state-sponsored abuses. Calls to support Sudan’s government were a method for shielding Sudan. They did not acknowledge, let alone deal with, the government’s responsibility for those violations. Instead, they provided a smokescreen that allowed Sudan to continue to collude in the atrocities within Darfur. Although claims of lack of capacity may be true in fragile states, they are increasingly being used by many countries that have the resources but lack the political will to implement rights. Those calls for assistance are taken up by countries’ political and regional allies. That stops the Council taking meaningful action on grave abuses within those states. Instead, pressure is placed on the UN and aid agencies to support governments that are actually perpetrating gross and systemic violations.

(d)  Ebbs and flows

An early warning of the Council’s politicization was seen during the negotiations on the Institution Building Package and the setting of the Council’s permanent agenda to be followed at each regular session. The agenda focuses Council attention on specific human rights areas that directly correlate to various aspects of Resolution 60/251, as (p. 209) well broader items allowing discussions of any issues pertaining to human rights.¹⁵³ Two agenda items, however, directly contradict the Council’s founding principles of non-selectivity and universality. One country-specific situation is singled out, under Agenda Item 7, to be discussed at every regular Council session—the human rights situation in ‘Palestine and other occupied Arab territories’. This is clearly selective, particularly given the persistence of other long-standing and graver crisis regions or situations. One thematic right is also singled out and placed on the permanent agenda: Item 9 mandates the Council to discuss ‘racism, racial discrimination, xenophobia and related forms of intolerance’ at every regular session. Both of these agenda items were proposed and supported by Organisation of the Islamic Conference (OIC) members and their allies. That bloc’s dominance at the Council enabled it to secure items clearly related to its political objectives despite the obvious violation of the body’s founding principles.

The selectivity and bias within the permanent agenda occurred within a broader context of politicization at that time. During the Council’s initial years there was a pervasive ‘us versus them’ culture focused on remedying the Commission’s perceived wrongs, particularly vis-à-vis Muslim states. African, OIC and Arab League states dominated proceedings and, acting as groups or blocs, ensured that their views and objectives were at the fore of all discussions. The EU as a bloc remained passive in its interactions formally and informally with relatively few exceptions of individual states, like the UK and Germany, that were more active. Canada, therefore, frequently was the lone dissenting voice and vote on heavily politicized issues such as selectivity against Israel, protection of known abusers such as Sudan, and thematic issues like defamation of religion.

During the Council’s early years, it seemed as though the new body would be little more than old wine in new bottles.¹⁵⁴ Selectivity, bias and politicization focused on different issues than at the Commission, but it was no less pervasive or pernicious. Many states, observers, scholars and civil society organisations sounded the death knells for a body that was only just being birthed. The Council’s credibility was undermined by events like the Special Session on Sri Lanka in 2009¹⁵⁵ and by the body’s failure even to mention human rights abuses linked to the Beijing Olympics or to the Russian incursions in Georgia and South Ossetia. Indeed, some civil society actors privately tried to persuade EU states to withdraw from the body in order to leave it as ‘no more than a glorified meeting of NAM to which no-one will pay any attention’.¹⁵⁶ The turning point came with the Arab Spring uprisings in 2010 and the fracturing of the dominant political bloc at the Council.

The Council seemingly became less politicized with a second wave of membership after the Arab Spring began. Fragmented regional groups and political blocs, largely owing to disunity and disharmony amongst the OIC, led to greater cross-regional co-operation. At the same time as those uprisings, the US engaged with the Council, and many of the more moderate states, particularly from Latin America and Africa, (p. 210) found their voices. As a result, the Council was more able to focus on fulfilling its mandate and on a range of activities aimed at protecting and promoting human rights. Special Sessions became more broadly focused, regular sessions included panels and discussions on emerging human rights issues and areas, and there emerged a greater consensus amongst regional groups and political blocs in terms of actions taken to protect and promote rights.

Those steps forward demonstrated that the body’s theoretical potential may in fact be harnessed. Membership of more moderate states was crucial to this improved work atmosphere and practices, as was a clearer understanding of the institution’s modalities and working methods that had been developed during the initial years. Despite those strides forward, politicization persisted in relation to some key issues. Selectivity in the Council’s dealings with Syria, as compared with other similar situations in the Middle East, is one significant example of how the Council ignored its founding principles in terms of country situations. Others include the Council’s treatment of LGBT rights, explored in detail below, and the ways in which states have selectively treated NGOs speaking at the body when those organizations have raised issues to which the dominant blocs object. In particular, the International Service for Human Rights, when it attempted to use its intervention to draw attention to reprisals against a human rights defender in China,¹⁵⁷ and UN Watch, when it has drawn repeated attention to the gross politicization against Israel, have effectively been silenced by states selectively using procedural points to interrupt and undermine their interventions.

Resolution 60/251 sets out four distinct, yet interwoven mandates: protecting, promoting, developing, and mainstreaming human rights. Firstly, the Council is tasked with addressing short-term human rights situations where victims need to be protected from abuses. Various tools are available for the body to fulfil this mandate: convening special sessions, making recommendations, passing decisions and resolutions, and instigating fact-finding and investigations. The Council is also required to promote longer-term human rights compliance through capacity-building, advisory services, fact-finding, dialogue with states and non-state actors, and providing technical and other assistance. The third aspect of the Council’s work is the development of human rights, both in terms of existing and new areas. Lastly, the Council is also required to mainstream human rights and to work with other parts of the UN human rights machinery. In order to achieve those mandates the Council has specific powers, which we will examine in the final part of this section, as well as mechanisms that will be explored in the following sections.

(p. 211) (a)  Promotion

The Council’s first mandate is to be ‘responsible for promoting universal respect for the protection of all human rights’. This demonstrates the interlinked nature of protecting and promoting rights. Promotion activities focus on mid- or long-term compliance with human rights obligations, including but not limited to capacity-building, technical assistance, education, and awareness-raising. While promoting rights focuses on strategies for implementation, thus aiming at longer-term protection, protecting rights focuses on preventing or remedying violations that are occurring or are imminent.

Promotion identifies long-term challenges that do not always require immediate or strong action. The Resolution has a non-exhaustive list of some activities that the Council must undertake to promote human rights. Council promotion activities include helping, supporting or enabling states to implement their human rights obligations and commitments, for example by promoting human rights education.¹⁵⁸ The Council must provide human rights advisory services and technical assistance, which may include assistance and expertise from UN staff, other states, and human rights experts. The Council, crucially, is required to support and enable national human rights capacity-building, which is of particular importance to states in the Global South. Capacity-building activities promote human rights by providing states with tools for universal adherence to human rights norms. The Council must also promote human rights by enabling dialogue on thematic issues.¹⁵⁹ Such dialogue occurs throughout Council sessions. Discussions facilitate interactions between states, human rights experts, NGOs and other non-state actors. Dialogue ensures that the Council is a forum for advice, assistance and support.

The Council is required to identify gaps in states’ human rights compliance or to respond to information from non-state actors, other UN bodies or the country concerned. Promotion activities, therefore, can respond to individual states’ needs and provide specific assistance with particular problems. The Council is required to ensure that those activities ‘be results oriented, allow for subsequent follow-up discussions to recommendations and their implementation and also allow for substantive interaction with special procedures and mechanisms’.¹⁶⁰ Those requirements underscore the need for the body to promote rights by ensuring effective follow-through, at the national level, on its work.

Emphasis is placed on the promotion mandate being conducted ‘without distinction of any kind and in a fair and equal manner’. That language reflects some states’ concerns that economic, social and cultural rights should be treated in the same way as civil and political rights. The importance of devoting equal time and resources to both non-controversial and controversial rights is also stressed. Emphasis on fairness and (p. 212) equality can be read as a general instruction not to single out countries, regions or peoples for unfair attention, nor to ignore others nor shield them from scrutiny.

Promotion activities are by their nature less contentious than protection activities. They focus on cooperation, constructive dialogue and support in terms of the language used and methods for undertaking the work. That does not make the promotion mandate any less invasive than the protection mandate in terms of the aims to improve human rights compliance within a country, but the methods used to achieve those aims create fewer tensions with states.

(b)  Protection

Protection ideally includes a swift, strong, and short-term response to violations. The Council’s protection activities are typically unlikely to be invited, or indeed cooperated with, by the country concerned. Protecting human rights within a state’s national jurisdiction is contentious because of the tensions with state sovereignty and the fact that no country enjoys being named and shamed by their peers. It is this facet of the Council’s mandate where one might expect most pushback from states and indeed it is protection activities that meet the most resistance from countries and their allies.

Other UN bodies such as the Security Council have the power to intervene in, or to protect, human rights during, grave or crisis situations. Those bodies are not, however, principally concerned with human rights. The Council’s protection mandate sought to address that gap by requiring the Council to perform a role not undertaken elsewhere. It is primarily aimed at situations or ongoing violations within a particular state. Ongoing or systemic abuses are often committed, or tolerated, by governments.

As a result, the Council is required to protect human rights. Protection traditionally refers to activities undertaken, notably by states, to ensure that victims are shielded from violations. The body ‘should address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon’. The word ‘including’ suggests that ‘gross and systemic violations’ is one example but not the exclusive focus and therefore may also include long-term or less egregious acts. The Council is mandated to make recommendations on those situations. However, they are not limited to being solely condemnatory, as had occurred at the Commission, but can incorporate all aspects of the body’s protection and promotion mandates. Recommendations on such situations can, and arguably should, for example, include ‘emphasis on encouraging it and addressing its capacity-building needs’ alongside condemning violations,¹⁶¹ but the emphasis on protection requires the Council to identify changes states need to make in order to cease violating rights.

(p. 213) The Council’s protection activities in many ways have led to the most criticisms from countries and from external observers. As we shall see when discussing the Council’s powers, mechanisms and relationships with other bodies, the protection mandate has not been backed with the necessary tools to ensure that the Council’s resolutions or recommendations are implemented. Of course, this is a more general flaw within the international human rights law system, and one that the new body has failed to address. As a result, actions on countries like Sudan during the genocide in Darfur, on Syria during the civil war, on Sri Lanka after the slaughter of large parts of the Tamil population, or indeed on Israel and the Occupied Territories, have done little to effect change on the ground unless or until other UN bodies or international and regional organizations have used the information and fact-finding undertaken by the Council, which often does not occur.

(c)  Developing human rights

The Council is also mandated to contribute to the ‘development of international law in the field of human rights’.¹⁶² That involves making recommendations to the General Assembly in terms of increasing and developing legal aspects of human rights, and by identifying areas needing further attention. We shall examine the Council’s development of the rights of vulnerable groups and of Third Generation Rights to understand how the body’s activities are aimed at this aspect of its mandate.

The Council’s mandate to protect and promote human rights thematically includes looking at specific rights and also at the rights of vulnerable groups. The need for specific protection for vulnerable groups was first recognized in relation to women¹⁶³ and since then there has been creation of specific mechanisms to deal with children, minorities, and persons with disabilities, amongst others. In terms of developing rights in relation to vulnerable groups it has turned its attention to other vulnerable groups in order to provide better protection and promotion of their rights. As a forum, the body has been used to develop and promote rights of groups that previously had not received specific protection from the international human rights system. States and civil society organizations have used the Council to discuss and promote the rights of groups such as peasants and the elderly with varying degrees of success. Those processes have included panels, discussions, intergovernmental working groups, as well as decisions and resolutions. One outcome has been to provide the basis and support for treaties on those vulnerable groups. The Council provides a strong and influential forum for such work to take place, not least because it brings together the full range of actors needed to develop and garner sufficient consensus on such issues. Full and frank debates are crucial to that process, as is the inclusion of civil society actors and experts on human (p. 214) rights. As a result, the Council has played a leading role in the continued and further protection of minority and vulnerable groups. Yet there is traditionally one main exception to the Council’s protection and promotion of vulnerable groups, and that is of sexual orientation and gender identity minorities.

It took five years and seventeen sessions before the Council passed a resolution¹⁶⁴ on lesbian, gay, bisexual, and transgender (LGBT) persons and the need to ensure the realization of their equal human rights.¹⁶⁵ Resolution 17/19 (adopted in June 2011) was a seminal moment, heralded as a milestone both for the Council and for LGBT rights. Until then, discussions on LGBT rights had been blocked by the OIC and by many African countries.¹⁶⁶ But the resolution was an anomaly enabled by the OIC’s internal rifts at that time. Resolution 17/19 on LGBT rights was passed during the Arab Spring uprisings. The OIC was experiencing internal divisions based on ongoing national conflicts. Events since the Panel demonstrate backwards steps on LGBT rights. It is crucial to understand that OIC members were conspicuously absent from the negotiating process.¹⁶⁷ Discussions at the body were the first time that OIC states registered their disapproval but by then, it was too late for them to block the resolution. South Africa, who tabled the resolution, faced significant opposition from many of its regional neighbours in the African Group. The strength of that opposition, and the bravery of South Africa, Mauritius, Zambia, and Burkina Faso in voting for the resolution, ought not to be underestimated.

A year later, when the Panel¹⁶⁸ took place on Wednesday, 7 March 2012, the OIC was almost fully reunified. As the UN Secretary-General Ban Ki-Moon delivered a video address opening the Panel on LGBT Rights, every delegate, bar two, from OIC member states that were in attendance stood up and filed out of the Council Chamber.¹⁶⁹ The bloc flexed its collective muscles to undermine discussions on LGBT rights. That decision seems to have been designed to undermine the panel’s legitimacy. Islamic states were reported as saying that the panel had ‘nothing to do with fundamental human rights’. OIC members, including the Ambassador of Pakistan, registered their ‘concern’ and ‘opposition’ to ‘controversial notions like sexual orientation and gender identity’.

South Africa, in the face of pressure from regional allies, announced that it would not table a resolution¹⁷⁰ on LGBT rights at the 23rd Session.¹⁷¹ South Africa’s volte (p. 215) face was a sign of a growing momentum against LGBT rights. The international movement to protect ‘traditional values’ and ‘the family’ has grown ever since 2011, with resolutions, panel discussions and other ‘soft law’ mechanisms devoted to their protection. Depending on how you count them, seventy-six countries around the world (and forty-one in the Commonwealth) still criminalize LGBT people and/or their actions, denying them fundamental rights and freedoms including through imprisonment, torture and the death penalty. Many of those states have been at the fore of these backwards steps on LGBT rights.

While some vulnerable groups such as the elderly have secured wide-ranging support from states, discussions on other groups have underscored deep ideological divides between different groups and blocs. The contrast is stark between those states seeking to protect LGBT persons and those seeking to protect peasants as a vulnerable group. Global North states have largely resisted peasants’ rights, viewing them as too closely tied to land rights rather than the rights of individuals. On the other hand, countries that criminalize LGBT persons or deny them equal rights have undermined attempts to provide for that group as needing specific human rights protection. What becomes clear is that ideologies and political objectives undermine Council attempts to protect and promote human rights universally and without bias or selectivity.

Alongside its work on developing rights in relation to vulnerable groups, the Council’s work under its development of human rights mandate has largely focused on Third Generation Rights. ‘Third Generation’ terminology was first articulated by Vasak in relation to collective rights, or those rights which could only be realized ‘by the combined efforts of individuals, states, public and private associations, and the international community’.¹⁷² Developed during the process of decolonization,¹⁷³ the first wave of Third Generation Rights is not rooted in human rights ideologies but rather in the colonial experience. States that had been formed in response to, and out of the ashes of, colonization sought to assert rights to govern over themselves, as well as to economic and social development.¹⁷⁴ Those same states have more recently sought to promote and enshrine newer Third Generation Rights that reflect their ideologies on human rights.¹⁷⁵

The second wave of Third Generation Rights includes development of rights to a democratic and equitable international order; international solidarity; to a clean and healthy environment; and to development. Rather than being a response to imperialism and based on post-colonial discourses, those rights are founded upon ideologies not previously represented within international human rights law. One interesting feature of the second wave of Third Generation Rights is that some of them bring into (p. 216) the human rights matrix matters that are linked to human rights but would traditionally have been dealt with through other institutions. In particular, issues that might be addressed through environmental bodies or financial institutions are being brought into the Council as human rights matters. The reluctance of many other specialist bodies to address human rights issues stemming from their issue areas, particularly in the context of finance and the environment, has led to those matters being brought into the international human rights arena where they will at least receive attention and be addressed to some extent. This raises complex and controversial questions as to whether other institutions are capable of dealing with those matters, and if so how best to encourage them so do so, as well as whether the human rights system is well-placed to address such issues.

A main criticism is that the Council is being used to dilute or undermine understandings of international human rights. Some countries at the fore of promoting these rights have suspect motives, unrelated to human rights, for doing so; whereas others idealistically seek to have their ideologies and voices represented within the international human rights system. Despite resistance from certain key states and groups, the Council’s work on Third Generation Rights, both in terms of developing and mainstreaming human rights, demonstrates the body’s capabilities for longer-term impact on international human rights.

(d)  Mainstreaming

Finally, the Council is instructed to ‘also promote the effective coordination and the mainstreaming of human rights within the United Nations system’. This is the least discussed aspect of the Council’s mandate, both by observers and by practitioners.¹⁷⁶ Mainstreaming focuses both on activities undertaken with other parts of the UN human rights machinery and also those that ensure human rights work takes place within or in conjunction with other UN bodies and agencies. The requirement (‘should’) to work as part of the wider UN machinery aims to ensure that human rights are not dealt with in a vacuum. States were not only concerned that the Council should not duplicate the work of other bodies, but were also keen to ensure that the body continue to set standards and share information with the UN human rights machinery. The Council’s mandate to raise human rights’ profile and strengthen interactions with other UN issue areas and bodies, for example development or security,¹⁷⁷ derives from broader aims of strengthening the status of human rights within the UN.

The Council is required to promote implementation of goals, commitments and obligations ‘emanating from United Nations conferences and summits’.¹⁷⁸ That function is central to the Council’s role as the UN’s principal human rights body. It means (p. 217) that it should take responsibility for supporting, advising and monitoring implementation of broader UN human rights work. Resolution 60/251 also includes mainstreaming requirements that advance both the promotion and protection mandates. Those requirements relate to the Council’s role in the wider field of human rights. The Council, for example, is mandated to work closely and maintain a relationship with other human rights bodies, organizations, and state and non-state actors.¹⁷⁹

Mainstreaming also involves the Council ensuring the involvement of non-state actors, including other UN bodies and agencies.¹⁸⁰ While it may sound obvious, this is a crucial aspect of the Council’s work and is part of a wider UN drive to strengthen and give greater visibility to human rights. The mainstreaming agenda, which is included within the Council’s mandate, includes steps being taken to ensure that the body’s work feeds into UN bodies outside of the human rights system, including the Security Council, and that human rights are used as an early warning system for other issue areas. This is crucial to human rights being a UN pillar rather than operating within a vacuum.

(e)  Functions and powers

The Council is frequently criticized for not ‘doing’ enough, in particular when it comes to protecting human rights. Yet it is clear that many of those critics have not borne in mind what the Council is and is not able to do. The Council’s powers are commensurate with it being an intergovernmental body, which means that it has neither binding nor adjudicatory powers. It is important to consider the Council’s use of some of its central powers and functions, generally, before turning in the next sections to specific activities that it undertakes.

The Council has only non-binding powers. However, non-binding acts can have both legal effects and political implications:¹⁸¹ they seek ‘to influence behaviour, but without creating law’,¹⁸² yet frequently form the basis for ‘soft law’.¹⁸³ Such acts include recommendations, declarations, codes of conduct or other generally non-binding resolutions.¹⁸⁴ These instruments require state cooperation and consent for implementation. Resolution 60/251 is rather general and broad regarding the Council’s functions. The Council’s four main functions are: recommendations, standard-setting, compliance powers, and technical powers.

The Council’s main function, or at least the one most often mentioned in Resolution 60/251¹⁸⁵ is making recommendations. As a general matter, recommendations, whilst (p. 218) being important for political purposes,¹⁸⁶ are not binding on member states outside the organization.¹⁸⁷ Organizations may, however, use recommendations to state the current or suggested law.¹⁸⁸ Recommendations may even have some legal effects, for example requiring members to implement and monitor the suggested measures.¹⁸⁹

Resolution 60/251 emphasized resolutions as a main function, and they, alongside Council decisions, have been crucial methods of providing information about protecting and promoting rights and have frequently been used to place political pressures on countries. The Council produces resolutions and decisions on thematic and country-specific issues, with a sizeable number of resolutions repeated during successive sessions in order to emphasize their importance. While they do not need to be passed by consensus, many are passed with very few or no dissenting votes albeit abstentions are more frequently deployed. They are referred to by UN bodies as well as regional and state actors. There has been increasing criticism of the proliferation of resolutions with concerns expressed that they are becoming meaningless owing to lack of implementation. Despite being by far the most common function used during the Council’s early years, resolutions and decisions have not remained the Council’s sole or even main focus.

Standard-setting is another key function set out in Resolution 60/251. The Council is mandated to assume the Commission’s standard-setting role. The power to adopt norms extends to various aspects of the Council’s mandate. The Council’s standard-setting may produce acts which bind all UN members because the ‘norms enunciated … may be linked to one or another ‘classical’ source of international law’.¹⁹⁰ Perhaps most importantly, the Council is given the power to undertake certain supervisory roles, notably monitoring state compliance with human rights. States in breach of their obligations may face diplomatic or political pressure. More far reaching, however, the Council may suspend member states under Paragraph 8. Although this provision signals that grave violations may be dealt with through suspension, it is unlikely to be used as often as warranted owing to political and diplomatic reasons as well as the difficulty in gaining a two thirds majority of the General Assembly. Exclusion has thus far been used only to limited effect. Alston nevertheless insists that the clause ‘is an important symbolic component in the sense that it would allow for any country that is widely condemned for its human rights record to be suspended from membership’.¹⁹¹ The Council also has powers to deal with states that do not cooperate with the body’s recommendations or monitoring, including recommending visits from special rapporteurs, appointing a country-specific mandate holder, or calling on the GA or Security Council to look into the situation.¹⁹²

(p. 219) The Council’s functions are largely focused on developing human rights, encouraging compliance and undertaking awareness-raising, capacity-building, and constructive engagement. Of course, powers other than those set out above are also deployed and are crucial to the Council’s activities but most follow similar patterns of information-sharing, cooperative dialogue, and support. What becomes clear is that the body’s functions are geared strongly towards promoting, developing and mainstreaming rights but are less useful in protecting those rights. Indeed, it is not just a lack of binding powers that hampers the protection of human rights, but also insufficient powers for the Council’s work to be used as an early warning tool in terms of grave atrocities or as a mechanism for preventing conflicts in their early stages. As such, the Council ought to be assessed on what it is able to achieve using those powers and ought to be strengthened through discussions about what additional powers would be required for it further to fulfil its mandates.

Resolution 60/251 created two mechanisms that directly addressed criticisms of the Commission and that aim to assist the Council with fulfilling its mandate: Universal Periodic Review (UPR) and Special Sessions. UPR largely is aimed at promoting human rights, although there are of course some protection activities that occur during those reviews. Special Sessions are aimed at protecting human rights in grave and crisis situations. Both of the mechanisms enhance the Council’s ability universally to fulfil its mandate and to respond to serious situations in a timely manner. They operate outside the Council’s regular sessions, thus ensuring that they do not divert resources away from the Council’s work but also meaning that they require additional resources both from the UN and from states attending the sessions. In order to assess the mechanisms we shall explore each one individually, focusing on what was envisaged by the Council’s creators and what has occurred in practice.

(a)  Universal Periodic Review

The Universal Periodic Review is primarily aimed at promoting human rights. It is widely viewed as an innovative mechanism,¹⁹³ and is perhaps the most significant change brought about by the Council reform. The UPR modalities were not enunciated (p. 220) in Resolution 60/251:¹⁹⁴ the broad overview of the mechanism and its aims¹⁹⁵ has little regard to the practicality, or even the possibility, of implementation.

The Council was mandated to ‘develop the modalities and necessary time allocation for the universal periodic review mechanism within one year’. It did so through the Institution Building Package, negotiated during the Council’s first year, which provided greater detail of how the UPR would work in practice. The IBP identified the roles, functions, principles and objectives as well as setting out modalities, including: periodicity and order of the review; process of the review; documents to be used, and the review’s outcome and follow-up. The actual process of the UPR arguably fulfils the rather broad requirements set out in Resolution 60/251, although the way in which the processes have been carried out has varied greatly throughout the first two review cycles.

UPR was created as a direct response to concerns that some countries were shielded from scrutiny or were ignored altogether by the Commission, as well as the fact that the body was too under-resourced to focus on anything other than the gravest of violations. This meant that the vast majority of countries, whether Commission members or not, did not have their human rights record scrutinized at all. That situation was exacerbated where it came to Commission members, many of which used that status to block scrutiny of their human rights records. Compliance with human rights monitoring, let alone standards, was sorely lacking amongst some Commission members. Ramcharan notes that some states were ‘strongly opposed’ to the Commission’s monitoring work.¹⁹⁶ States would refuse entry to experts and mandate holders, or even ignore their requests, where monitoring conflicted with national aims. States’ attitudes towards human rights monitoring had to change in order for the Council to overcome the Commission’s failings¹⁹⁷ and peer review was the main proposal to achieve this.

The clear aim for UPR, from the outset, was to ensure that all UN members regularly had their domestic human rights record reviewed, and recommendations made thereupon. Although there is some overlap, this is clearly a mandate distinct from that of the treaty bodies.¹⁹⁸ The Council acts as an intergovernmental body and is not constrained by any particular instrument. The goal of the exercise is to produce a broad assessment of compliance with applicable human rights standards not a detailed evaluation of compliance with specific treaties. Indeed, the Council is required to ensure that the UPR ‘shall complement and not duplicate the work of treaty bodies’.¹⁹⁹

UPR follows a four-and-a-half year cycle—although initially this was four years—during which all UN member states have their human rights records scrutinized and their compliance with human rights obligations monitored. Each UPR Working Group session reviews sixteen states. Three reviews take place per year, thus covering (p. 221) forty-eight states.²⁰⁰ The reviews take place in Geneva outside regular Council sessions, with member states sending representatives to the reviews. Many countries send delegates from the highest governmental levels to attend their own reviews, and there is significant reliance on diplomats from other states taking an interest in all sessions rather than only those of their allies or of countries that command significant attention from the media or wider public. Indeed, in the first session OHCHR had to remind—and reportedly round-up—diplomats to attend reviews of smaller or less politically-controversial countries in order to ensure that the rooms were not empty and that delegates from those states were not discouraged from taking seriously future review sessions. Indeed, a crucial element of UPR’s universality is that a broad range of states engage with the review of their peers regardless of the economic or political clout of the country being reviewed.

UPR is based on a number of instruments: the UN Charter, the UDHR, UN human rights treaties to which a state is party, a range of human rights regardless of treaty ratification, and states’ voluntary pledges and commitments.²⁰¹ The first stage involves gathering and collating information on the reviewed state’s human rights situation. Much of the UPR’s success²⁰² depends on the nature and quality of the documents used to conduct the review.²⁰³ OHCHR collects and compiles the information, which comes from a range of sources including the country being reviewed, UN bodies and civil society. States’ national reports are limited to twenty pages but can be significantly shorter. During the first session one smaller state provided an oral rather than a written report, and whilst that was accepted it has not become usual practice. Of course, state reports are unlikely to identify all of the human rights issues within a country, and so that information is supplemented by other sources. Alongside the national report, OHCHR compiles a ten page report of UN information²⁰⁴ and a ten page summary of ‘credible and reliable information provided by other relevant stakeholders’, such as NGOs.

State cooperation is emphasized as an essential component of the process.²⁰⁵ Gaer argues that the UPR’s ambiguity on state cooperation, and the conflicting visions of the Council’s general role in protecting and promoting human rights, cast doubt on whether such issues will be adequately resolved to allow the UPR to achieve its objectives.²⁰⁶ During the first cycle, the majority of states cooperated to a large extent with preparations for the review and collation of relevant materials. Exceptions predominantly fell into two categories: (1) states, such as the DPRK,²⁰⁷ that might have been expected altogether to refuse to cooperate with the review process and, therefore, (p. 222) for whom partial cooperation was still a ‘success’; and (2) states, such as Comoros,²⁰⁸ with limited resources for collating relevant materials. States falling under those categories arguably are more likely to have poor human rights records. As Nowak et al point out, it is those states that ‘most need external scrutiny’ and, yet, are least likely to cooperate with, and therefore be impacted by, the UPR process.²⁰⁹

It has been generally accepted that states are obligated to participate in the process, and as such there are no provisions for how to deal with a state that does not engage with the mechanism.²¹⁰ Indeed, to date there has only been one country that failed altogether to engage with its review and even then it was for a short period of time and that state was reviewed some months later than planned. Israel chose not to attend its UPR session in 2013 as part of that country’s broader boycott of the Human Rights Council at that time. The implications of a country opting out of this universal mechanism are significant insofar as such a boycott could lead to a domino effect. Fortunately, that did not occur in 2013 and diplomatic channels were used to persuade Israel to re-engage with the UPR. Although the fact that this was a lone and isolated incident is significant evidence of how seriously states take the UPR, it also demonstrates the mechanism’s fragility owing to it so heavily depending upon state engagement and cooperation.

The review is led by the Troika of rapporteur states,²¹¹ which consists of three Council members, drawn by lots, each from different regional groups. The OHCHR’s role includes overall supervision of the process and advice to the troika. The UPR Working Group, consisting of all Council members and observer states, conducts the three-hour review. Conducting the review with all Council members sitting as a working group rather than at a plenary session was a compromise to allow all members to participate without taking time away from other Council matters.²¹² A reviewed state may request that one troika member be from its own region, enabling countries to have a regional ally that understands its cultural sensitivities and/or issues relating to capacities for human rights protection and promotion. Conversely, a state may decline a position on the Troika as was the case in terms of India and Pakistan for obvious political reasons.

The reviewed state’s presentation is followed by comments, questions and recommendations from other states which the concerned state may respond to at any stage. NGOs do not actively participate in the review²¹³ despite providing submissions and being present at the first discursive stages. The UPR’s basis as a cooperative mechanism results in the state under review being able to determine to (p. 223) which, if any, comments and questions it will respond.²¹⁴ During initial sessions states rarely responded to written questions submitted in advance, which was a method of questioning preferred by EU members in particular. As a result, questions are mostly asked from the floor during the review although even then the country being reviewed is still able simply to ignore the question.

The OHCHR compiles an outcome report within two days for the troika’s and the reviewed state’s approval. The report summarizes which, if any, recommendations the state initially accepts or rejects or on which it reserves judgement. The report is then presented to the UPR Working Group for editing and adoption. At the next scheduled Council Session, the report is considered and adopted. The reviewed state has two minutes to present its acceptance, rejection or reservation on recommendations and reasons. Member and Observer States are allowed to make comments on the outcome of the review and NGOs make ‘general comments’. These contributions are summarized in the report of the Council session and included in the final report, which is then formally adopted by the Council and are available on the OHCHR website.

The UPR was mandated to be ‘a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned’.²¹⁵ Emphasis is placed on the body’s underlying principles, reaffirming the importance of universal application and equal treatment, and the Council is required, in particular, to address capacity-building needs. The UPR seeks to promote and to mainstream human rights. Promotion occurs through monitoring states’ compliance with obligations and commitments, as well as through providing assistance following the initial review. The gamble is that equal, regular and public human rights monitoring of all states, if it occurs in practice, will encourage countries to change their attitudes towards the human rights machinery.²¹⁶

Universal Periodic Review, through its universality, directly responds to the criticisms of selectivity²¹⁷ and politicization²¹⁸ made against the Commission,²¹⁹ and was seen as ‘the main drive to depoliticization’ of the human rights body.²²⁰ Indeed, observers viewed it as the embodiment of a genuinely reformed human rights body.²²¹ Alston notes the proposal’s main attractions: universality; avoidance of the politicization that had undermined the Commission; and provision of practical human rights support and advice.²²² In practice, its record so far is mixed.

Much has been written about the Universal Periodic Review.²²³ The UPR has been the focus of expectation and hope from scholars, civil society and states. In the course (p. 224) of its first two cycles, UPR has been an effective tool for universal protection and promotion of human rights, but it has also failed to live up to its full potential.

The UPR has secured significant attention and engagement from human rights actors, and during the first cycle countries took seriously the reporting requirements as well as the public scrutiny that the review process brings. It has brought together a range of actors to provide information about, question and discuss states’ human rights records, and has produced recommendations for countries as well as generating information useful for actors on the ground.

Yet it was perhaps naïve to expect that even a perfect peer review system could combat politicization. Indeed, Arbour and other peer review proponents failed to confront the possibility that the review mechanism itself would be subject to selectivity. The review sessions have frequently been politicized by tactics deployed to shield states from scrutiny, and the UPR modalities enable such tactics to be used. For example, states may choose which questions they acknowledge and answer, are able to rely upon their allies to speak knowing that those countries will deliver positive appraisals rather than targeted questions, and later may determine which recommendations they will and will not accept. Even where countries do accept recommendations, there is no mechanism for monitoring or following-up on whether they are implemented. As such, the second cycle saw states take their reviews less seriously and engagement with the process was reduced other than for sessions involving the Permanent five members of the Security Council, pariah states, or countries then under the international spotlight.

The utility of the UPR for information-sharing, peer-support, promoting rights, and engaging all UN members in constructive dialogue about their human rights records, is clear. However, the impact of the reviews depends largely on the willingness of individual states to implement recommendations, thus limiting UPR’s ability to protect rights or even to ensure effective promotion. And while steps have been taken towards follow-up, with countries now reporting on implementation two years after their reviews, states still can and do fail adequately to ensure that the recommendations accepted have any practical effect on the ground.

(b)  Special sessions

The second new mechanism created for the Council aims at fulfilling the body’s protection mandate and enabling the Council to respond swiftly to grave and escalating situations outside. A main failing of the Commission was that its annual session allowed neither the time nor the dexterity to deal with crisis situations. Special Sessions (p. 225) provides the ability to discuss grave or crisis situations inter-sessionally and at short notice. They are separate sessions and, because of this, convening Special Sessions enables a quick and focused response without using time and resources that had been allocated for other human rights matters. The mechanism responds to the obvious fact that especially massive and sudden human rights violations may occur outside the Council’s normal calendar and that such a body would marginalize itself if it were not capable of responding in real time to such emerging threats. Special Sessions may focus on any grave or crisis human rights situations, either country-specific or thematic. The Council’s ability to deal with crises is central to the new body. However, negotiations on Special Sessions were somewhat sidelined in favour of discussions on peer review.²²⁴

Resolution 60/251 mandates that the Council ‘be able to hold special sessions, when needed, at the request of a member of the Council with the support of one third of the membership of the Council’.²²⁵ The Council is given the ability ‘to hold special sessions when needed’,²²⁶ but is not mandated to convene them. The Resolution does not specify when Special Sessions should be held, but rather it leaves the mechanism open for the Council to interpret and utilise as it sees fit. Special Sessions can be held at the request of one member, but only if one third of Council members support holding the session.²²⁷ It was hoped that this requirement would discourage the use of Special Sessions as a political tool, whilst still allowing them to be convened quickly and efficiently where required. Of course, and as we shall see, that was a rather naïve and idealistic expectation.

Further modalities were set out in the Institution Building Package²²⁸ in paragraphs 121–8.²²⁹ Special Sessions should be convened between two and five days after the request and should not exceed six days. Attendance is open to Council members, concerned states, observers, NGOs, and other specified non-state parties. Consensus should be sought wherever possible and sessions should be ‘results-oriented’ with the outcomes able to be monitored and reported on. Although primarily concerned with protecting rights, Special Sessions must also focus on promoting rights through providing long-term goals to be implemented during and after the sessions.

The Council’s ability to deal with crises is central to its mandate. Special Sessions were designed to allow the Council the time and flexibility to convene at short notice in order to meet outside plenary sessions to discuss either country-specific or thematic crises or grave situations. It was envisaged, particularly by the Global North, that the sessions would focus on thematic issues; and although that has occurred occasionally—for example regarding the global financial crisis, the world food crisis or transnational terrorism committed by ISIS—the mechanism’s potential in that regard has not been exploited. Failures to convene a Special Sessions on irregular migration, bondage of workers in the Gulf, or other similar situations demonstrate that the mechanism is not (p. 226) being used fully for the purposes that its creators intended. Instead, the vast majority of sessions have been convened about country-specific situations and while those are also needed it is only half of the mechanism’s mandate and potential.

OHCHR staff involved in creating the Council²³⁰ foresaw and forewarned Global North states that the mechanism would likely be used instead to target particular country-specific situations for politicized reasons and that it was likely that the same selectivity and bias that occurred at the Commission would plague the Special session mechanisms. During the Council’s early years it swiftly became apparent that the warnings ought to have been heeded. five of the Council’s first twelve Special Sessions focused on Israel and the Occupied Territories. While that is a grave situation, and while crises arose during that time, the disproportionate attention can be compared with the sole Special Session on Darfur where a genocide was being perpetrated,²³¹ the sole Special Session on the Congo where more than 6 million people had been killed at that time, and the failure to hold any Special Sessions on countries with ongoing grave situations of repression, such as North Korea and Zimbabwe, or of occupation, such as Morocco and Western Sahara or Turkey and Northern Cyprus. Schrijver insists that when the Palestinian plight is considered, Western observations that the Council excessively focuses on Israel is questionable.²³² However, owing to similar, if not worse, abuses ongoing elsewhere, Gaer argues that convening three Special Sessions on Israel in the Council’s first six months raised serious concerns about the new body and its members.²³³

The mechanism has similarly been politicized in the ways that it has and has not been used to respond to the Arab Spring Uprisings. In 2011 and 2012 there were four Special Sessions on Syria, a country expelled by the Arab League, which is no longer protected by most of its former political allies in the MENA region. The situation in Syria and how to address the grave crisis has divided opinion within the Organisation of Islamic Cooperation, so that political bloc did not vote en masse to block scrutiny of its member state. Selectivity, and disproportionate scrutiny of Syria, can be compared with the failure to convene a Special Session on Bahrain, Egypt, Tunisia or Yemen, or even a thematic session on the Arab Spring uprisings generally.

Politicization through bias, disproportionate attention and selectivity were always a risk, but the methods for convening a session increased the likelihood of it occurring. Requiring one third of Council members’ support empowers dominant groups and alliances to use this mechanism to achieve political aims because the larger the group, the more easily the one-third threshold is achieved. Once again, this has manifested (p. 227) itself in the mechanism’s use for selective, biased and politicized purposes, such as the vastly disproportionate attention being devoted to Israel and Syria whilst other similar or more egregious situations were given little or no attention. It is only when a state lacks political allies that the spotlight of so many Special Sessions can be shone to illuminate the human rights abuses occurring whilst also deflecting attention away from other similar situations elsewhere.

A different form of the politicization of Special Sessions is the way in which countries are shielded from scrutiny at sessions that were convened to scrutinize human rights abuses in those very same states. That tactic has been deployed most notably in the sessions about Darfur and about Sri Lanka. In both of those sessions, allies of those countries used bloc and group politicization tactics to ensure that the scrutiny and action intended for those states were diverted to other actors. In terms of the Special Session on Darfur, states allied with Sudan ensured that attention was focused on non-state actors’ role in the conflict and that support, capacity-building and technical assistance was promised to Sudan’s government. While those states had failed to shield Sudan from the Council’s attention, both in regular and special sessions, they diverted the spotlight away from the government’s abuses and shifted the narrative to one of the government being unable to prevent violations.²³⁴ That narrative, of course, is at odds with the vast majority of information and evidence available at that time about the atrocities in Darfur,²³⁵ and demonstrates the gross politicization that can and does take place within an intergovernmental forum owing to politics being able to supersede the body’s aims and mandate.

Another deeply politicized and ultimately counterproductive session wholly undermined the Council’s mandate to protect and promote rights. The EU called for a Special Session on Sri Lanka in May 2009, a week after the defeat of the Liberation Tigers of Tamil Eelam (LTTE) by government forces and the resulting fears about massacres etc. The government of Sri Lanka issued a joint communiqué together with the UN Secretary-General in which Sri Lanka reiterated its commitment to protecting and promoting human rights and the UN Secretary-General emphasized the importance of an accountability process. Not only did the Special Session fail to enforce accountability, the outcome was a ‘deeply flawed’²³⁶ resolution²³⁷ that put forward the government’s version of events, praised state forces, and pointed the finger only at abuses committed by the LTTE. The resolution passed with twenty-nine votes in favour, twelve against, and six abstentions. Most states supporting Sri Lanka were its allies from the Asian Group or the Non-Aligned Movement, who sought to shield it from Council (p. 228) action. Human Rights Watch said that Brazil, Cuba, India, and Pakistan led efforts to block a stronger resolution focusing on government abuses. Even more problematically, the resolution sought to entrench the position held by many Global South states that the Council cannot interfere with affairs within a state’s domestic jurisdiction even though human rights violations are not understood in international law to be part of inherently domestic matters and indeed it is anathema to international human rights law to claim that abuses are exclusively part of the internal affairs of a sovereign country.

Despite the politicization and selectivity apparent in the use of this mechanism, the sessions have provided a key tool for information-sharing and shining a spotlight on grave, crisis situations. There has been insufficient use of those materials by other UN bodies, although this is an issue that is being addressed through steps being taken to ensure that Special Session resolutions are passed to the Security Council with the hope of them being used as an early warning system. It is crucial, however, that more thematic issues are discussed within these sessions. The Arab Spring uprisings and the concomitant rights violations, for example, ought to have been addressed by a Special Session. While the session held on Boko Haram²³⁸ clearly shows steps forward in terms of thematic issues, there ought also to be others on thematic issues such as migration and the Mediterranean.

Another human rights mechanism that is inextricably linked with the Human Rights Council and its work is the Special Procedures system. The system is bound together with the Council: it is dependent on that body for the creation of mandates, selection of mandate holders, and dissemination of its work. And while Special Procedures may work with any part of the UN, its primary relationship is with the Council.

Special Procedures were described by former UN Secretary-General Kofi Annan as ‘the crown jewel of the [UN human rights] system’.²³⁹ It is a key mechanism for protecting and promoting human rights, primarily by investigating and reporting on violations as well as making recommendations. Mandates are created to examine human rights violations on a thematic issue or within a particular country. The universality of the mechanism reflects the Universal Declaration on Human Rights’ universality,²⁴⁰ with human rights protection and promotion occurring across all UN member states, unlike at treaty bodies which only deal with states party to the relevant treaty. The very nature of Special Procedures as a universal mechanism and the working methods of mandate holders mean that the mechanism encroaches upon state sovereignty. As a result, despite support for the system generally there have been many (p. 229) different types of attempts to alter or reign in Special Procedures, as we shall explore in this section.

Individuals (Special Rapporteurs or Independent Experts) or Working Groups (comprising one person from each of the five regional groups) undertake fact-finding, share information, meet with a broad range of stakeholders including victims and NGOs, hold interactive dialogues with the Council, and also may be called upon to address other UN bodies including the General Assembly and the Security Council, and related agencies such as the World Health Organisation. As of 2015 there were fifty-five mandates, comprising seventy-four mandate holders. Those mandate holders are experts on human rights, are independent both of the UN and of their own national governments, and undertake their work part-time, unpaid and for fixed-term appointments.

(a)  Background

Special Procedures started as an ad hoc mechanism to respond to grave human rights abuses, and the creation and renewal of mandates remains sufficiently flexible to ensure that it is a key tool for responding to new and emerging issues. In 1967, the Commission created the ‘Working Group of Experts on the situation of human rights in southern Africa’²⁴¹ and a Special Rapporteur on the politics of apartheid.²⁴² Foreign policy objectives were furthered through these mandates. South African apartheid epitomised racist and colonial human rights abuses, therefore developing nations sought recognition of such violations through a mandate on a grave abuser state. That same year, the Commission was granted the competence ‘to examine information relevant to gross violations of human rights and fundamental freedoms’.²⁴³ Those two key events paved the way for the evolution of the system of Special Procedures that by 2015 had grown to fifty-five mandates on thematic human rights issues or country-specific situations.

At the outset, Special Procedures was viewed as an exceptional mechanism to be used judiciously and only where there was significant political agreement on the need to address country-specific human rights situations. The second Special Procedures mandate was created in 1969 to investigate the human rights situation in Israel and the Occupied Territories.²⁴⁴ Many of Israel’s critics argue that it, too, commits colonial violations. The mandate was created after the Six Day War²⁴⁵ during which Israel occupied land belonging to surrounding states, including Egypt, Syria and Lebanon and reflected political efforts to ensure that the occupations, the Palestinian cause, and ongoing violations in that region remained in the spotlight. Political agendas similarly (p. 230) dominated proceedings to ensure that there were no other country-specific mandates during Special Procedures’ formative years. As not all countries can be examined at any given time, political agendas have continued to play a leading role in the selection of countries for mandates.

It was not until the ‘Working Group on the situation of human rights in Chile’, created in 1975,²⁴⁶ that country-specific mandates started to be more widely accepted. The mandate on Chile, a country that was in no way as politically isolated as South Africa or Israel, demonstrated the utility of the mechanism as a tool for supporting and enabling states to address human rights violations. Indeed, the General Assembly acknowledged the work of the Working Group on Chile and in 1978 encouraged the Commission to use Special Procedures when dealing with gross violations of human rights.²⁴⁷

The first thematic mandate was created in 1980. It was prompted by the situation in Argentina in relation to enforced or involuntary disappearances, a situation that the Commission was called upon to address.²⁴⁸ Argentina’s government, however, resisted the notion of a country-specific mandate, not wanting to be singled out for scrutiny of its human rights violations. Using political and diplomatic tactics, the government ensured that there would be insufficient Commission members willing to vote in favour of creating such a mandate. Instead, the Commission created a Working Group to focus on the thematic issue of enforced or involuntary disappearances that occur anywhere in the world. Despite it being clear that the government targeted was Argentina, the Resolution framed the mandate as being universal which made it acceptable to that country. Indeed, Argentina’s resistance emphasized the growing feeling that issue-oriented mandates were ‘attractive and politically feasible’ options.²⁴⁹

(b)  Relationship with the Council

The competence to create and renew Special Procedures was passed from the Commission to the Council.²⁵⁰ While many changes and reforms have been implemented since the Council’s creation, and despite repeated calls for rationalization, the system has grown and developed both in terms of the number of mandates and in terms of the ways in which it is utilized to protect and promote human rights. The Council was not mandated to adopt the Commission’s system in its entirety, but instead was given the ability to adapt and change aspects of Special Procedures so long as a system was maintained.

Special Procedures had long been criticized by states and blocs, particularly decolonized states from the Global South,²⁵¹ seeking to limit their scope and (p. 231) independence. The Council’s creation offered an opportunity for those states to pursue that same agenda.²⁵² Some of these states pushed for a complete overhaul of the system,²⁵³ while states supportive of a strong and independent Special Procedures system worked to ensure that the system was strengthened and made more effective.

The issue of how to appoint mandate holders was always going to be a controversial issue within the reform discussions.²⁵⁴ Alongside independence and expertise, Hampson emphasized the importance of both geographic and gender distribution, eligibility criteria regarding who appoints mandate holders, and the manner in which individuals are selected. States did express some views on geographic distribution, although gender was not discussed during Council proceedings. The main discussions centred on the selection process. Some states advocated direct election of individuals, while others argued that this would result in the system’s politicization. Divergence was particularly apparent between the African Group, NAM, and OIC on the one hand, and WEOG on the other. Indeed, South Africa and Algeria both commented that divergence on the issue of elections would present a North-South divide.²⁵⁵ WEOG states and their allies²⁵⁶ argued for appointment because ‘election would be political by definition’,²⁵⁷ asserting that ‘politicisation and horse trading’²⁵⁸ should be avoided. They claimed that elections would render geographical and gender balance more difficult. Other states²⁵⁹ argued that elections would bring about ‘democratisation of the UN system’,²⁶⁰ thus giving the fledgling body greater credibility. They asserted that appointment would affect mandate holders’ independence as they would feel ‘indebted’ to the nominating party. Elections were said to have been efficient in the case of treaty bodies, and to provide a potential accountability mechanism for mandate holders.²⁶¹ Some states, particularly Asian and Latin American countries, suggested a mixed procedure incorporating both appointment and election.²⁶²

The compromise was that the selection process would involve member states alongside UN staff.²⁶³ It was agreed that the Council appoints mandate holders from candidates nominated by governments, regional groups, international organizations, NGOs, other human rights bodies and individuals. Broad consultations occur, particularly with coordinators of regional groups. States have greater involvement in the process, although ultimately the decision rests with the Council President.

(p. 232) The OHCHR advertises vacancies and solicits nominations for each available mandate. Selected candidates are then interviewed by the Consultative Group, which consists of five diplomats appointed by the five regional groups. The Group then submits a ranked shortlist of nominees to the President of the Council, who makes a final proposal to the Council. Arguably, this gives too much power to the regional groups, allowing political agendas to be involved in the selection process. While the President appoints the candidates, he or she does so only after the Council’s approval has been received.²⁶⁴ The Consultative Group looks at individuals’ relevant experience and expertise, as well as the general requirements adopted by the Council in 2006,²⁶⁵ especially in relation to qualifications, expertise, recognized competence in international human rights law and availability to carry out their functions.²⁶⁶ Arguably, the most important factor for each candidate is their independence, and the IBP requires the exclusion of any individual who may have a conflict of interest due to their role in Government or other organization, which is an improvement in terms of guaranteeing mandate holders’ independence.²⁶⁷

Discussions on a possible code of conduct for mandate holders demonstrated similar divergence to those on country-specific mandates and those on selection of mandate holders. The idea of a code of conduct had been discussed informally for a number of years²⁶⁸ and the Council formally endorsed one at the 2nd Session.²⁶⁹ Callejon argues that ‘the concept itself reveals States’ determination to limit mandate-holders’ remit and action’.²⁷⁰ She notes the pre-existence of the Special Procedures Manual,²⁷¹ commenting that a code of conduct was therefore unnecessary. Moreover, Scannella and Splinter argue that proposing a code of conduct can be viewed as states’ attempts to limit the Special Procedures system.²⁷²

The OIC, Asian Group, and a number of African states sought adoption of a strict code of conduct.²⁷³ Russia, which often sides with the South on issues affecting domestic jurisdiction, argued that clear rules for mandate holders should be developed in an intergovernmental format, with the Special Procedures Manual serving only as one of many sources.²⁷⁴ That position reflected concerns that Special Procedures should be (p. 233) ultimately governed by states rather than independent experts or administrative staff. Western and allied states, however, argued that a code of conduct was unnecessary due to the pre-existence of a Special Procedures Manual²⁷⁵ covering such matters. The end result is that a Code of Conduct does exist, but in a form that reflects compromise from all countries involved with the discussions.

The second aspect of reform discussions focused on the mandates themselves. In 2007, the Council started a year-long Review, Rationalisation and Improvement process regarding individual mandates. The two main issues were (i) whether to continue with country-specific mandates and (ii) whether to streamline the many thematic mandates that have been created since 1980.

Country-Specific Mandates were discussed at the newly-created Council, with a particular focus on whether to abolish them altogether. Despite support for the work done by country-specific mandate holders,²⁷⁶ there has been a persistent allegation that the selection of countries for such mandates was biased and politicized. That position was argued from different perspectives. China and its allies in the Like Minded Group viewed country-specific mandates as a neo-colonial tool used by developed nations to target and oppress developing states.²⁷⁷

The Commission’s mechanism for establishing country-specific mandates was not formalized nor were substantive criteria set. Farer and Gaer argue that this ad hoc nature resulted in states singled out for a mandate claiming that the selection was politically motivated as, at any given point in time, known human rights abusers escaped such scrutiny.²⁷⁸ While the Commission could not have been expected to establish mandates dealing with every country situation, there were instances where grave violations were ignored while lesser violations scrutinized. Many abuser states were protected from country-specific mandates by political or regional allies at the Commission.²⁷⁹

The number of country-specific mandates decreased during the Commission’s final years.²⁸⁰ Scholars attribute this decline to a lack of political will to address country situations, alongside an increased resistance to country-specific resolutions.²⁸¹ By the Commission’s end, member states and regional groups constantly blocked country-specific resolutions being passed against their allies, which significantly affected the body’s credibility.

Although the Council decided to retain country-specific mandates generally, it did abolish two of the existing ones—on Cuba and on Belarus—and this type of mandate remains a politically sensitive and frequently contentious issue. While some countries are willing to engage with such mandate holders, others such as Iran simply refuse to allow their country-specific mandate holders to conduct formal visits. There are far (p. 234) fewer of these mandates than there are thematic ones, reflecting the difficulties in creating them and in mandate holders carrying out their work when appointed.

Thematic mandates allow monitoring of human rights violations by ‘otherwise untouchable governments’²⁸² and also counter the criticism that country-specific mandates were selective and politicized as thematic mandates did not single out one state, but instead examine a particular right across many countries.²⁸³ Indeed, thematic mandates provide the most effective and expedient legal mechanism for the UN to aid victims of human rights violations.²⁸⁴ However, thematic mandate holders cannot examine every country, thus even those mandates were open to criticisms of bias and selectivity in terms of the states they examined.

Special Procedures thematic mandates focused almost exclusively on Civil and Political Rights (CPRs) until 1995 when the Commission on Human Rights created a mandate on Toxic Dumping.²⁸⁵ Since then, there has been a movement towards expanding the system to include Economic, Social and Cultural Rights (ESCR) and Third Generation Rights (TGR) adding some twelve ESCR mandates²⁸⁶ and four TGR mandates.²⁸⁷ The first two ESCR mandates were on Extreme Poverty²⁸⁸ and Education,²⁸⁹ both created in 1998. Between 1995 and 2013, five TGR mandates and twelve ESCR mandates have been adopted. In that time there have been four new CPRs as traditionally understood,²⁹⁰ starting with Impunity in 2004.²⁹¹ There have also been eight mandates,²⁹² starting with Migrants (p. 235) in 1999,²⁹³ where the resolution largely seeks to promote and protect CPRs but only in relation to a specific group of people.

The main question that the Council sought to address in relation to thematic mandates was whether any could be combined or ended in order to avoid duplication of mandate holders’ work. For example, the mandates on migrants and on human trafficking touch upon some similar issues; the mandates on violence against women and on discrimination against women; and those on international solidarity and on international order. Despite overlap, however, no rationalization of mandates occurred, and since the Council’s creation there has been increasing proliferation of thematic mandates with new ones created every year. The main reason for the expansion of thematic mandates is that they are a crucial tool for protecting, promoting and developing rights, even though of course the system has its problems.

(c)  Protecting, promoting, and developing human rights

Special Procedures provide one vehicle for the Council fulfilling its mandate universally to protect, promote and develop human rights. The system provides a method for countries to identify thematic or country-specific issues that need to be addressed, and then for experts to provide information and recommendations on norm-creation, norm-protection, and norm-enforcement in those areas. The interplay between Special Procedures and the Council ensures that they work together to achieve strong and visible results.

Human rights frequently are described as indivisible and universal.²⁹⁴ The role that the Special Procedures system plays strives to underscore those two key characteristics of international human rights. Individual mandates emphasize protecting and promoting rights, and the activities undertaken by mandate holders seek to fulfil those duties. The system increasingly reflects all types of human rights with mandates on a broad range of thematic human rights as well as country-specific mandates dealing with a range of states that pose different rights problems. The mandate holders are able to report and make recommendations on issues across the globe, ensuring that the system is universal and impacts upon all UN member states. Indeed, that universality provides significant credibility to the system owing to mandate holders’ reports focusing on all regions across the world. The system’s legitimacy as a universal mechanism depends (p. 236) on all types of states being examined on all types of rights in a proportionate and even-handed manner.

Mandate holders usually undertake two country visits per year, usually individually although there have been joint visits with varying degrees of success. States are strongly encouraged to accept visit requests, and most mandate holders will require countries to allow them free and unfetter access to talk to any relevant stakeholders. Those visits form the basis of their country reports, but their annual reports identify thematic issues and draw upon information from far more countries than the ones visited that year.

Resolutions that create or renew mandates frequently are broadly or vaguely framed, giving significant room to mandate holders to direct their own work and activities. As such, there is a lack of uniformity of practice amongst mandate holders and it is clear that the personality and interests of a specific individual shapes the course and direction of the mandate during his/her tenure and of course this influences the substance of the annual reports and indeed the selection of country visits and reports during that time. As a result different themes are explored by different mandate holders at different times, thus producing a corpus of work from each mandate that identifies best practices and key problems, which is then used by states, intergovernmental bodies, NGOs, and activists in order to strengthen human rights compliance.

There are marked differences between countries’ responses to Special Procedures. By and large, Global North states appear to engage well with mandate holders: they allow a disproportionately large number of visits from mandate holders and frequently can be relied upon to accept visit requests.²⁹⁵ That level of engagement remains superior to that of countries from the Global South, many of which reject or ignore such requests.²⁹⁶ However, there has been an increasing tendency on the part of Global North states towards either verbally resisting mandate holders’ reports or paying lip-service to them but not implementing the recommendations or addressing the concerns raised by those experts. While those are different responses than those of states that refuse to allow mandate holders to visit their territories, they are equally pernicious for individual mandates and for the system as a whole. An obvious reason for any country’s resistance to a mandate holder’s report is that no state wants to have its human rights record scrutinized and criticized in a public forum. Not only are mandate holders’ reports openly accessible, but their findings are also discussed within a very public setting.

One of the most effective powers that the Council deploys is holding interactive dialogues with Special Procedures mandate holders. Those interactive dialogues take place after the human rights experts present to the Council their reports on thematic or country-specific issues. Member states, observers and NGOs join in the discussions with the mandate holder, frequently asking questions or offering peer-support and advice to the countries concerned. The power to hold such dialogues enables information-sharing in terms of the mandate holders’ reports, findings, recommendations, and (p. 237) best practices, and also constructive engagement with how human rights may be better protected and promoted. States take seriously these dialogues, particularly the countries that are reported on by the mandate holders, and they are a crucial tool for ensuring effective attention is paid to the issues raised by those experts. As such, Special Procedures has become a crucial tool for ensuring that a light is shone on human rights issues around the world.