The United States and the U.N. Human Rights Council: an early assessment.

• Author: Freedman, Rosa

1. Introduction II. The United States' Vote Against Establishment of the Council III. The United States' Views on the Council's Activities IV. United States Objections to the Council's Work A. Country-specific Debates B. Thematic Debates V. The United States Human Rights Record A. The United States Domestic Human Rights Record B. The United States International Human Rights Record VI. Conclusion I. INTRODUCTION

   The United States' election to the U.N. Human Rights Council ("Council") in 2009 displays a shift in foreign policy under President Barack Obama. (2) The Obama administration's decision to engage with the Council by seeking membership, for the first time since the Council's creation, reverses the approach taken under George W. Bush. During General Assembly discussions aimed at establishing the Council in 2005-06, the Bush administration had objected to key provisions. The United States argued that the proposed Council would fail to overcome the shortcomings of the Commission on Human Rights ("CHR"), the Council's predecessor. (3)

   When the Council was established in 2006, (4) the United States did not stand for election to one of the body's 47 seats. (5) It instead opted for permanent observer status, which entitles a state to participate in all sessions. In 2008, the Unites States withdrew its mission, disenchanted by the tone and progress of Council proceedings. (6) Despite widespread hope that the Obama administration will revitalize America's relationship with the U.N., the 2008 withdrawal is no aberration. It remains a pivotal action in U.S. policy towards the U.N., as Bush era policies have not been altogether abandoned.

   In this article, an analysis of events leading up to the 2008 withdrawal will shed light not only upon America's likely positions in the years to come, but, more importantly, on the overall performance of the Council since its creation. Two broad factors are relevant to the United States' withdrawal. First, I shall examine America's historical stance towards the Council, tracing its positions before, during, and after the General Assembly vote on the Council's establishment. (7) Second, I shall turn to the Council's scrutiny of human rights in the United States and the American response. (8)

   Although recent U.S. policy has done much to inflame international relations, I shall argue that the Council's "Special Procedures" mandate holders (9) drew excessive attention to the United States, often to the neglect of far more serious human rights situations elsewhere in the world. After examining those two factors, I shall conclude with preliminary prognoses of America's new membership under the Obama administration. (10)

2. THE UNITED STATES' VOTE AGAINST ESTABLISHMENT OF THE COUNCIL

   News that the United States had withdrawn its observer mission was first reported in the Human Rights Tribune in June 2008, between the Seventh and Eighth Sessions. (11) That move effectively ended U.S. involvement with the Council, as the United States ceased giving input into the body's discussions and activities. The United States neither officially confirmed nor denied the news. However, it announced at its daily State Department briefing that it would only participate in Council discussions where "absolutely necessary." (12)

   Although the Bush administration had no further involvement after the Seventh Session, which ended in 2008, the United States announced a new decision to stand for election to the Council early in Obama's Presidency. (13) In order to secure U.S. membership, New Zealand withdrew its candidacy, (14) thus allowing the United States to gain an unopposed seat in the Western European and Other States' group.

   Those are only recent chapters of a turbulent history. In the original discussions on establishing the Council, the United States had focused on membership issues in objections to the draft resolution establishing the Council. The Secretary-General at that time, Kofi Annan, had proposed the Council be elected by a two-thirds majority of the General Assembly, thus making it more difficult for countries to obtain membership unless they were known to be committed to the protection and promotion of human rights. (15) The United States pushed for additional criteria in order to ensure that "gross and systemic" violators could not be elected. (16) Annan had deemed the Commission's lack of credibility to be crucial to its demise, (17) along with the number and prominence of members with poor human rights records. (18)

   The United States echoed Annan's hope that the Council would eradicate the Commission's problems, especially regarding credibility of membership. Despite some states' support for these aspirations, the final resolution simply required that "when electing members of the Council, Member States shall take into account the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments made thereto." (19) U.S. Ambassador, John Bolton, insisted the resolution go further in excluding countries with the worst human rights records from gaining membership. (20) The lack of assurance of a credible membership would, he argued, result in the Council being no better than the Commission. (21) The test would be whether countries such as "Cuba, the Sudan, Zimbabwe, Iran, Belarus and Burma" acquired membership. (22)

   Unsurprisingly, Bolton's views won little sympathy from member states he had previously criticized. In 1994, Bolton had claimed, "[t]here is no such thing as the United Nations. There is only the international community, which can only be led by the only remaining superpower, which is the United States." (23) Bolton also famously declared, "[i]f the UN Secretariat building in New York lost ten stories, it wouldn't make a bit of difference." (24) Bolton's opinions on CHR membership carried little weight among the countries increasingly suspicious of the Bush administration. Although Bolton made serious points about the Council, his standing at the U.N., and the general standing of the Bush administration, guaranteed his opinions would garner little support. Bolton's backing for the invasion of Iraq further undermined his ability to steer the U.N. on human rights. Bolton advised the General Assembly never to "settle for good enough, for a compromise" in the promotion and protection of human rights. (25)

   Nevertheless, on March, 15 2006, at the General Assembly's 72nd meeting, the draft resolution to create the Council (26) passed by a landslide, with 170 states in favor, four (4) against, (27) and three (3) abstentions. (28) The vote was called by the United States to the chagrin of those who had hoped the text would pass unanimously (a vote is only called for when there are countries that oppose the draft resolution in question). (29) Before the vote, Cuba accused the United States of taking a "punitive and sanctioning" approach. (30) The Cubans alleged America and its allies had exerted "strong pressure and resorted to their traditional blackmail" in pursuing its preferred outcome. (31)

   After the vote, Bolton reminded the General Assembly that the United States had counted historically among the strongest voices for the global protection and promotion of human rights, since the founding of the U.N. (32) Bolton pointed out that the U.N. "can, and should, do more. We had an historic opportunity to create a primary human rights organ in the United Nations, poised to help those most in need." (33) Bolton nevertheless went on to pledge U.S. assistance in strengthening the Council. (34) The United States declined to stand for membership, leaving its status formally peripheral, in comparison to its earlier, full-fledged membership of the CHR. (35)

   The Council retained the CHR rules regarding observer states and bodies (36) allowing the American delegation to energetically participate in Council sessions and activities as a permanent observer until the end of the Seventh Session. Observer status entitled the United States to be present at all Council sessions and to participate in all discussions. The United States vigorously exercised that prerogative, as we shall now see from the many and varied discussions in which it participated.

3. THE UNITED STATES' VIEWS ON THE COUNCIL'S ACTIVITIES

   The United States scarcely changed its views on the Council's activities during the seven sessions in which it participated. Its initial fears that the Council would be biased and opaque were repeated in its comments on working methods. Furthermore, the Council's inaction on grave human rights situations (37) was a source of U.S. consternation, echoing those initial fears that the Council would not go far enough in protecting and promoting human rights.

   The United States expressed strong opinions about the Council's working methods, often stating they were not conducive to the effective protection and promotion of human rights. The United States faced further frustration in its appeals for constructive working methods. (38) From the outset, the United States stressed the need for dialogue, as opposed to confrontation, and the importance of involving NGOs, national observers, and all other stakeholders. (39) The American insistence on such tactics arguably arose from its fear that the body would fail unless the Council radically departed from the failings of the Council's predecessor.

   The United States emphasized "the need to have clarity and transparency," arguing that the Council "must follow clear and predictable guidelines." (40) The United States seemed particularly concerned that the Council should avoid the CHR's earlier opacity, by supporting open, formal procedures over closed, informal and unreported meetings. (41) While the United States may be criticized for its own secrecy on the Security Council, a feature shared by permanent members, such insistence on transparency at the Council cannot be deemed hypocritical, as security...