U.N. COUNCIL SESSION
Death of human rights?
March 9, 2009
Visitors observing the current session of the Human Rights Council in Geneva might be excused for thinking they have stumbled into the proverbial chicken coop being guarded by the local fox. There, sitting on the United Nations' premiere body "responsible for promoting universal respect for the protection of all human rights," they will see representatives of some of the most repressive regimes on the face of the earth, being among the most egregious serial violators of human rights norms known to civilization — all elected by the General Assembly of the United Nations.
According to the U.S. State Department's Annual Country Reports on Human Rights Practices, the governments of no fewer than 22 of the council's 47 current members are directly or indirectly guilty of "arbitrary or unlawful deprivation of life." The right to live is not only the first right listed in the Universal Declaration of Human Rights, the charter of the whole human rights movement, but it is also the most important right. It is the only one that cannot be restored once taken away; the only one for which the victim can never be compensated; and the only one the deprivation of which ipso facto carries with it the loss of all other rights. Yet nearly half the members of the Human Rights Council violate this most fundamental of rights. In addition, slavery is practiced in 18 states on the council and torture in 32 of them. And at least 10 have the decidedly dubious distinction of being in violation of all of these rights, being the first three expressly listed in the Universal Declaration: Angola, Bangladesh, Brazil, Cameroon, China, Ghana, India, Indonesia, Madagascar and Pakistan.
These infractions cannot be dismissed as mere peccadilloes. While no country has a perfect human rights record, the above-mentioned rights go to the very heart of the dignity of the human being.
Reactions to all this tend to encompass any combination of bemusement, bewilderment, outrage, condemnation and contemptuous dismissal of the whole human rights process — or simply ignoring what is going on and pretending it doesn't matter. At another level altogether, though, the stark facts summarized above raise serious and indeed quite fundamental questions, not only about the process of human rights, but also about its very content, questions that emanate from the most basic principles about the way international law, of which human rights is a branch, is created and develops.
At the heart of the development of international law is the consent of nations. Written agreements among states — treaties — are obvious examples of the manifestation of consent. But states also express consent by their practice. If enough states conduct themselves in a certain way, over a long enough period of time, customary international law is created. One means by which states manifest their practice is through votes cast in international fora. If, therefore, a majority of the United Nations' 192 members vote to seat chronic abusers on the very body designed and created to stop those self-same practices, it must have a deleterious effect; it clearly derogates from international society's commitment to enforcing those norms and, therefore, undermines them. How can the system be taken seriously? What can be expected of other countries if members of the council that is meant to show an example act the way they do?
At the very least, it is clear that the council's composition cannot simply be ignored. It makes it harder confidently to assert human rights unequivocally and casts a serious question mark over the future of this area of international law. It is a further troubling symptom of deep-seated problems, and with the strong anti-democratic majority of membership in the United Nations, the prospects for a reversal of the trend are bleak. The council's membership represents a degradation of the human rights movement of the past six decades and signals a real danger of its unraveling. The international community, and those who believe passionately in the notion of human rights in particular, ignore this effect at their peril.
Harry Reicher teaches international human rights at the University of Pennsylvania Law School and is scholar-in-residence at Touro College Jacob D. Fuchsberg Law Center.
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