Elections to the United Nations Human Rights Council and the ‘democratic deficit’

We are delighted to welcome this post from Ruth Houghton on the recent elections to the UN Human Rights Council. Ruth is a Graduate Teaching Assistant and Ph.D. candidate at Durham Law School. There has been a significant response to last week’s membership elections for the United Nations Human Rights Council. Some commentators have criticised the human rights records of newly elected states, such as Saudi Arabia, China and Russia. Others have criticised the election procedure. The uncontested elections for seats in some regional groups coupled with the ‘undemocratic’ nature of some successful states are evidence of a ‘democratic deficit’ at the Human Rights Council. In fact, reports in the BBC that some groups were calling for the censoring of some states highlight a broader discourse on the relationship between democracy and the Human Rights Council. Being ‘undemocratic’ weakens the legitimacy of the Council, as the people it was mandated to protect do not play a part in decision-making. The credibility of the Council is undermined if states can challenge the authenticity of the elections.

The Human Rights Council has 47 rotating Member States that are drawn from regional groups. Seats are allocated according to equitable geographical distribution which means that the African Group hold 13 seats, East European countries have 6 seats, GRULAC (Latin American and Caribbean Group) 8 seats, Asia 13 seats, and WEOG (Western European and Others Group)  have 7 seats. Every year one third of the seats are open for election. This year, Africa and Asia had four seats each, and East Europe, GRULAC and WEOG each had two seats.

In the run-up to the creation of the Council, there was a debate over membership criteria. Whilst some called for strong exclusionary criteria that would prevent states that abuse human rights from becoming members, others advocated the universal nature of the Council. This controversy culminated in the adoption of ‘soft criteria’ only. States have to take into account the candidate’s ‘contribution to protection and promotion of human rights’ as well as their ‘voluntary pledges and commitments’. Whilst the removal of states for ‘gross and systematic violations’ is provided for in paragraph 8 of GA Resolution 60/251, Libya is the first state to have its Council membership suspended. This shows the strong reliance on the political will of states; a somewhat unreliable protector of human rights.

These concerns about membership criteria also touched on the democratic nature of states. The United States in 2004 called for the Council to include only “real democracies”. The criticisms following these elections and the report undertaken by Freedom House, an independent watchdog organisation, that assessed the democratic credentials of candidate states in 2012, highlights the preoccupation with the democratic nature of states at the Council. Being a democratic state, like having a good human rights record, is a criterion that would exclude certain states. This could, in turn, have undermined the ability of the Council to have influence over those states. Although this criterion was rejected in favour of having a universal forum, the requirement of democracy at the domestic level is worth exploring.

Democratic Member States ensure that there is at least some link between the domestic constituents and the international body because the states act as intermediaries. This link can be weakened by certain tactics that are used by states at the Council. The recent criticism of the elected Member States also focuses on the failure of these states to co-operate with the UN. Julie de Rivero, Geneva Advocacy Director at Human Rights Watch, is reported in the Guardian as stating that China is a ‘negative player’ at the Council. Rejecting initiatives to hold human rights abusers to account is one way of playing badly. States also participate in bloc voting and waste valuable time during sessions by making repeat and irrelevant statements. Democratic or not, states can align themselves with strong political blocs and adopt tactics to shield one another from the scrutiny of the Council. This weakens the link between the demos and the international body.

It is not enough then to ask for states to be democratic. Alfred de Zayas, the Independent Expert on the Promotion of a Democratic and Equitable International Order has highlighted that democracy should be seen at two levels; both the domestic and the international. The tactics used by states at the Council suggest that states do not always behave civilly and cooperate, even if they are democratic. One way to democratise the Council would be to have genuine elections for membership.

Human Rights Watch suggests that non-competitive elections weaken the Council because states with poor human rights records are permitted as members. There is an additional reason why these elections undermine the credibility of the Council; they fall short of domestic notions of democracy and party politics where two or more parties stand for election. Like the Commission before it, the Council is plagued by ‘closed slates’ during elections. A ‘closed slate’ or the choice of only one candidate per seat in a regional group, allows for human rights abusers to be elected, and without genuine elections the undemocratic Council loses legitimacy.  This year the seats for the African and GRULAC groups were contested, with South Sudan and Uruguay losing the elections. The other groups ran uncontested elections. It was reported that Jordan pulled out of the contest for a seat in the Asian group. This tactical move highlights the politicisation at the Council. It is this politicisation that can obscure any link between the international body and the demos as well as challenging the democratic nature and credibility of the Council.

Genuine elections, coupled with more interventionist supervision by the Council President, would go some way to ‘democratising’ practices at the Council. Achieving a strong link between domestic constituents and decision-making at the Council would require Member States to be democratic. The internal governance of a state cannot cure a ‘democratic deficit’ that this is maintained by the ‘undemocratic’ elections and practices at the Council.

Elections to the United Nations Human Rights Council and the ‘democratic deficit’

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