II.2.1 Elements of continuity

Following the 2005 World Summit, and after only a few months of intense negotiations, in March 2006, the GA adopted Resolution 60/251, whereby it created the Human Rights Council. The resolution was adopted by a vast majority of 170 votes in favor. The countries that voted against were only four: the United States, Marshall Islands, Palau and Israel. Three countries abstained: Iran, Venezuela and Belarus. Fourteen countries did not vote: Central African Republic, Chad, Cote d’Ivoire, Democratic People’s Republic of Korea, Dominica, Dominican Republic, Equatorial Guinea, Eritrea, Georgia, Kiribati, Liberia, Nauru, Papua New Guinea and Seychelles.^[1]

It was decided that the Council would be based in Geneva, where the sessions of the former Commission had taken place for 60 years. The principles agreed to guide the work of the Council were: universality, impartiality, objectivity, non-selectivity, international constructive dialogue and the promotion of cooperation in the promotion and protection of all human rights.^[2]

The competence to deal with human rights situations was preserved. In line with the 2005 World Summit decision, the Council was not only tasked with promoting universal respect for the protection of all human rights and fundamental freedoms without discrimination of any kind, but it was also mandated to address and prevent human rights violations, including gross human rights violations, as well as promote the mainstreaming of human rights within the UN.

The decision to specifically include the possibility to address and prevent human rights violations in specific countries was particularly positive. ^[3] Although the competence to do so started in the 1970s with ECOSOC Resolutions 1235 and 1503, it remained a highly contentious issue during negotiations on the establishment of the Council at the GA level in 2005 and, at a later stage, in the institution-building process for the new body in 2006. Indeed, the decision was taken against the will of some States which would have preferred to have an intergovernmental body with a limited mandate regarding country situations.^[4]

Furthermore, the mandate of the Council also managed to preserve a significant and positive continuity of several functions performed by the defunct Commission, namely making recommendations to further develop international human rights law. There was also a positive continuity in the sense of allowing observers, including NGOs, to participate in the new Council, in line with the practice of the Commission.^[5]

II.2.2 Main changes in enthe Council: hierarchy, composition, periodicity, terms and conditions of membership, voluntary commitments and the universal periodic review

In Resolution 60/251, the GA not only took stock of many competences of the former Commission but also decided to make clear and specific changes to the new Council. To address the main criticisms of the Commission and its role, in particular in its final years, the Council had innovations in terms of its status in the UN; its composition; the periodicity of its sessions; the conditions of membership and the possibility of making voluntary commitments. In addition, the GA decided to establish a new mechanism to assess human rights situations in an equal manner: the universal periodic review.^[6]

Regarding its status, it was decided that the Human Rights Council would be a subsidiary inter-governmental body of the GA.^[7] As a consequence, the Council directly reports to the GA, the most democratic UN body, composed of all States of the Organization.^[8] The decision to officially upgrade the Council was of significant political importance because it formally recognized human rights as one of the three pillars of the organization, together with peace and security and development, for which there were already two separate Councils (SC and ECOSOC) in place.^[9]

From a legal perspective, the ideal change for the Council would have been a recognition of its existence in the UN Charter. However, this was not possible because that option would have opened other important negotiations on the content of the Charter. Soon after discussions on the establishment of the Council began, the main negotiators at the GA level decided to push for a practical proposal: to establish the Council through a GA Resolution.

Nevertheless, the discussion remained open because operative paragraph 16 of Resolution 60/251 provided for a review of the work and functioning of the Council five years after its creation. However, in 2011, during the review, nothing was changed in this regard.^[10] Consequently, the Council has a consolidated higher status than its predecessor.

A second relevant change was the HRC’s composition, which had become a major problem for the defunct Commission by the beginning of the new millennium. The election of a number of States with questionable human rights records as members of the Commission was challenged by many stakeholders, including in particular NGOs. In this context, some NGOs suggested criteria to be applied when electing Member States. These criteria included the ratification of core human rights treaties, compliance with treaty obligations and the issuance of standing invitations to special procedures.^[11] The United States added another proposal to these criteria: that the State should not have had sanctions imposed by the Security Council.^[12]

During negotiations, the 2004 proposal by the panel of eminent experts—consisting of universal membership—enjoyed the support of countries such as Canada. Annan’s own proposal in his 2005 report—i.e. a reduced membership of 15 states—was strongly supported by the United States. Nevertheless, the majority of the GA members decided otherwise.

This was because several States considered that there were many problems with both extreme options: on the one hand, universal membership would not have solved the problem of politicization, and it would have been very difficult for this body to take timely decisions, particularly in cases of emergency situations. Moreover, there would have been challenges with regard to the participation of developing countries, as at least 30 UN Member States do not have representation in Geneva, where the Council would be based. On the other hand, the proposal of a reduced membership did not enjoy much support, in particular as it would have implied a lack of legitimacy in terms of representation and could have given a special preponderance to some powerful States.^[13]

Consequently, GA Resolution 60/251 decided that the Council would consist of 47 Member States. The membership would be based on an equitable geographical distribution and, thus, African States would have 13 seats; Asian States 13; Latin American and Caribbean States 8; Eastern Europe 6; and Western countries and Others 7.^[14]

Although the number of Members was quite similar to the number of Members of the Commission in its final years of existence, the new geographical distribution allowed States from Africa, Asia and Eastern Europe to gain more seats in the Council. The change was so important that at present any initiative submitted by Latin American, Western or Eastern European countries at the Council for adoption now needs the support of at least a few countries from Africa or Asia if the initiative is to be successful.

The new distribution represented a significant power shift, as in the defunct Commission Western countries used to have a certain degree of influence with the support of Latin American States. Conversely, particularly at the beginning, the Council’s work was more influenced by the African Group and the Organization of Islamic States (OIC) in several although not all initiatives.^[15]

Even if with the current geographical distribution decisions have not been always positive in terms of promotion and protection of human rights, the decision was a reasonable and fair compromise, because it took into consideration a more democratic geographical representation at the international level.

The level of support needed to be a member of the Council was also modified. Indeed, to be part of the Council, a State must have at least the majority of votes of the GA. The United States unsuccessfully tried to impose a two-thirds majority to elect Member States of the new Human Rights Council, in line with the proposal of the then Secretary-General.^[16]

Nevertheless, overall, there was a slight—albeit insufficient—improvement in terms of election because, until that moment, members of the Commission were elected by the ECOSOC—composed only of 54 Members States—with no limit on re-election, and on many occasions without competition, because each regional group submitted the number of candidates to fill the available vacancies.

A third change focused on the periodicity of sessions. The Commission had one single annual session and only convened special sittings to discuss emergency situations on an exceptional basis. Firstly, because the ECOSOC only authorized the Commission to have special sessions as late as 1990 through Resolution 1990/48. In the following years, until 2005, it held five special sessions.^[17] In part, this could be explained by the fact that it required a high number of States to hold these sessions: 25 out of 53 Member States.

In sum, the GA decided that the Council would have no fewer than three sessions per year for a duration of no less than ten weeks and that it would be able to hold special sessions if one third of the members so requested.^[18] This was a response to the need to have a standing body able to react to emergencies during the whole calendar year. The results have proved to be positive: as of October 2020, the Human Rights Council had 45 regular sessions and 28 special sessions. The latter were held to deal mainly with specific country situations, with two exceptions where the special sessions were convened to deal with urgent matters. That was the case of the 7th special session (2008) on the world food crisis and the 10th special session (2009) on the financial crisis.^[19]

A fourth change was related to the terms and conditions of membership. Members of the Council are elected by simple majority of the GA in a secret ballot for a three-year term, renewable once. However, it is no longer possible for States to run for immediate re-elections after two consecutive terms.^[20] The election of the members of the Council by the General Assembly—and not the ECOSOC as in the case of the predecessor body—is more democratic and, in principle, it requires more support to be elected. The limit on re-election was designed to allow small States to be members of the Council and, at the same time and probably more importantly, to limit the influence of powerful countries on the results of the work of the Council.

Regarding the conditions for membership, many proposals were discussed during negotiations as parameters of commitment to human rights: the level or ratification of human rights treaties, cooperation with non-conventional mechanisms such as special procedures—including standing invitations to visit the country at any given moment—and the information provided by NGOs. None of these proposals were included in the final result of the negotiations.

The United States suggested that membership should not to be granted to a State under sanctions of Chapter VII by the Security Council in relation to human rights abuses or acts of terrorism. Arab States opposed this suggestion and, ultimately, it was not accepted.^[21]

In the end, it was agreed that the election of Council members should consider the contribution of candidates to the promotion and protection of human rights and their voluntary commitments.^[22] This decision was criticized for its vagueness and limited scope.^[23] The majority of States have made voluntary commitments, but it is up to the States to decide whether or not to honor them, as well as to define the terms and contents of those commitments.

Finally, it was also expressly decided that Member States of the HRC should take steps to uphold the highest standards in the field of human rights and fully cooperate with the Council, and that they would be reviewed by the universal periodic review mechanism (UPR) during their membership.^[24] What is more, in cases of grave and systematic violations, the GA could suspend membership of States by a two-thirds majority.^[25]

Some analysts consider the possibility of suspension as an important deterrent, while others consider that the prospects of suspension are low because it has to be originated in the Council by a qualified majority—a two thirds majority— and the decision has to be confirmed by the GA.^[26] In practice, there has only been one case of suspension so far. Libya was suspended in 2011 following allegations of gross human rights violations committed by the Gaddafi regime, which was then in power.^[27]

When it comes to assessing the membership provisions set out in Resolution 60/251, I agree with Mallory in the sense that it would be futile to use the approach that a State with an imperfect human rights record would discredit the body. This approach would end up creating an unrepresentative institution, both geographically and in terms of religious, political and cultural backgrounds. At the same time, it would be wrong not to exercise some sensitivity towards the human rights records of the Members of the Council. Indeed, Mallory used two interesting elements to evaluate the provisions: the first is if those provisions allow the inclusion of “pariah States” as Members of the Council, and the second is if there is a high number of States with questionable human rights records as HRC members.^[28]

In this context, it should be said that, even if it is not enough to guarantee the most appropriate composition, there have been cases of States with very negative human rights records which have not taken part in the Council because they were deterred by the Council’s membership requirements or due to the fact that other States considered this situation at the election process.^[29]

Nevertheless, since the requirements set out in Resolution 60/251 are not as strong as they should be, it could well happen that States with very negative human rights records are elected to the Council. The secret nature of the election, the growing practice of clean slates—that is to say, putting forward the same number of candidates from a regional group as seats available in the body—and the lack of rigorous requirements in terms of admission could clearly permit this to occur.^[30]

The fifth and most powerful change was the decision to design a new and democratic peer control mechanism called the universal periodic review. Resolution 60/251 requested UN Member States to submit information about the fulfillment of their obligations in the framework of a cooperative mechanism on an equal footing. This mechanism had to be based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity-building needs. The General Assembly requested the Council to define its modalities within its first year of functioning. The possibility of dealing with human rights situations all around the globe without selectivity and double standards was at the core of the establishment of this new mechanism. It is therefore not surprising that the creation of the UPR has been considered one of the most important innovations of the HRC.^[31]

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