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1 DEPARTMENT OF POLITICAL SCIENCE ~ TUFTS UNIVERSITY STUDENT RESEARCH BRIEFING SERIES VOLUME II, ISSUE I SPRING 2011 INSTITUTIONAL REFORM & HUMAN RIGHTS OUTCOMES: A SYSTEMATIC STUDY OF UNITED NATIONS HUMAN RIGHTS INSTITUTIONS LINDSAY HELFMAN Welcome to the second issue of our Student Research Briefing Series which is designed to publish a broad range of topics in American Politics, Comparative Politics, Political Theory and Philosophy, and International Relations. The briefings are intended to enhance student appreciation of student research completed in the Department of Political Science. In addition, the publication hopes to serve as outreach to interested undergraduates and prospective students considering a major in Political Science. If you are a student interested in contributing to the Student Research Briefing Series or a professor, within the Department of Political Science, and have a student paper you would like to highlight, please contact jeannine.lenehan@tufts.edu. The following publication is student-produced and the research was conducted during their undergraduate studies. About the author Lindsay Helfman graduated from Tufts in May 2011 with a major in Political Science. Following graduation, she will be working in New York City before pursuing a J.D./M.B.A. TABLE OF CONTENTS ABSTRACT 1 ABOUT THIS PAPER 1 CHAPTER 1 3 CHAPTER 2 7 CHAPTER 3 16 CHAPTER 4 33 CHAPTER 5 40 CHAPTER 6 47 REFERENCES 50 APPENDIX 56 The Department of Political Science, Tufts University, Packard Hall, Medford, MA 02155, USA Phone: Fax:

2 Abstract Institutional Reform & Human Rights Outcomes: A Systematic Study of United Nations Rights Institutions Lindsay Helfman (T 11) After the atrocities of World War II, the international community came together in 1946 to establish the UN Commission for Human Rights. Over the course of its sixty years, the Commission was riddled with politicization and often criticized for being counterproductive in its efforts to protect and promote human rights. While the institution had its fair share of accomplishments, it was abolished in 2006 and subsequently replaced by the UN Human Rights Council. This institutional change is worthy of discussion because, as this thesis will demonstrate, it is an institutional improvement that positively influenced human rights work. Additionally, this change demonstrates the institutional capacity and value of the United Nations for dealing with human rights. This thesis proceeds first by examining and comparing the institutions. The main differences can be divided into the following categories, pertaining to: status, membership, action (meetings, voting procedures), and institutional mechanisms. While all of these differences bear significance, specific emphasis will be placed on the changes to membership. Using the Cingranelli and Richards Index Human Rights Data Project, the methodology incorporates human rights statistics to evaluate the human rights records of either institution s corresponding membership. By demonstrating that the replacement of the Commission with the Council is, in fact, an institutional improvement in a variety of ways, I argue, not only, that institutions are useful for promoting and protecting human rights, but also that they are necessary for doing so. While denigration of the United Nations is common, many of the opportunities and mechanisms embedded in this international institution are overlooked or undervalued. Though the United Nations is by no means perfect, the story of the adoption of Resolution 60/251 will demonstrate why this institution is a worthwhile investment, and that it is capable of changing for the better. About this paper: Choosing to study abroad in Geneva, Switzerland was no coincidence: I was eager to spend the spring semester of my junior year interning in the United Nations. As an intern for the Conference of NGOs in Consultative Status with the United Nations (CoNGO) I was responsible for covering human rights activities that took place in the United Nations Palais. My semester abroad extended through the summer, as I spent the better part of my eight months following the UN Human Rights Council. Soon enough, my frustrations with the bureaucratic aspects of this institution constructively developed into questions. I began asking experts: human rights lawyers, prominent NGO leaders, government officials what they thought about the Council. Though many echoed similar frustrations, they were convinced that this institution was a vast improvement over its predecessor. To investigate further, I developed more questions, and a methodology that would provide some answers: is the UN Human Rights Council, in fact, better than its predecessor institution? How is it possible to know, and what does that mean for human rights work today? The finished

3 product was my senior honors thesis, in which I discuss the relevant academic literature and incorporate human rights statistics as an option for institutional assessment. Abstract: The Story of Resolution 60/251 Table of Contents Chapter 1: An Institutional Change Worthy of Discussion Chapter 2: Lessons from the Literature Foundational Literature Historical Literature Methodical Literature Professor Snyder s Pragmatic Approach to Human Rights Concluding Discussion Chapter 3: From the Commission to the Council The UN Commission for Human Rights Kofi Annan s Credibility Deficit The UN Human Rights Council Comparison and Concluding Thoughts Chapter 4: Designing a Study Using Human Rights Statistics Is Quantifying Human Rights a Worthwhile Endeavor? Which Human Rights Data and Why? Combining Membership Data with Human Rights Statistics Chapter 5: Modest Trends with Considerable Implications Chapter 6: The Value of International Human Rights Institutions References APPENDIX Tables 1-8 Graphs 1-4 Charts 1 & 2

4 Chapter 1 An Institutional Change Worthy of Discussion With such architecture, there is no doubt that, in legal and institutional terms, we are better placed today to act collectively to protect human rights than we were just a few years ago. Statement by Kofi Annan, former UN Secretary General, June 23, 2010 In 2006, the United Nations General Assembly adopted Resolution 60/251, which replaced the United Nations Commission for Human Rights with the United Nations Human Rights Council. The adoption of this Resolution marks a crucial change in institutional machinery. This change is worthy of discussion because, as this thesis will demonstrate, it is an institutional improvement that positively influenced human rights work. Additionally, this change demonstrates the institutional capacity and value of the United Nations for dealing with human rights. The broader purpose of this thesis is to unite two important conversations: the first concerning international institutions and the second regarding human rights work. I argue not only that institutions are useful for promoting and protecting human rights, but also that they are necessary for doing so. The scope of this thesis is limited to these two institutions: the Commission and the Council. The aim is to compare them; to explore their differences and similarities; and finally to demonstrate whether the replacement of the Commission with the Council can be considered an institutional improvement. Why do these institutions deserve attention? In the area of human rights, it is necessary to rely on a forum that consists of governments, civil society, and legitimacy. Furthermore, human rights work in particular demands government effort and involvement, for the protection and promotion of human rights. The Commission and the Council, as appendages of the United Nations, have these attributes. This thesis proceeds first by examining and comparing the institutions. The main differences can be divided into the following categories, pertaining to: status, membership, action (meetings, voting procedures), and institutional mechanisms. While all of these differences are significant, specific emphasis will be placed on the changes in membership. Perhaps the most crucial difference between the

5 two, the Council was designed to take the human rights records of member states into account when determining accession to membership. In addition, though there was a decrease in membership from the Commission to the Council, it was not indiscriminate, as three geographic regions gained member seats while two other geographic regions lost representation. How do these changes relate to the institution s work, and potential for success? I posit that that these institutions were designed to facilitate human rights ideals and norms by promoting a specific set of human rights and aiming to influence their member states. Therefore as the creators of the new institution and the chief recipients of its influence, any institutional improvement should be exhibited in member states human rights records. Therefore, I am looking to find institutional improvement that exists in the corresponding member states of either institution. In other words, in order to determine if the Council is in fact, better than the Commission, the member states of the Council should have better human rights performance. The methodology is designed to gauge the impact that the change in institution has had on respective member states. First, I am most interested in determining how human rights can be measured. I explore the validity of various approaches to quantifying human rights; investigate how to best quantify the human rights records of the UN member states; and determine the merits of doing so. Next, in order to quantify human rights outcomes for assessing the member states of either institution, I combine membership data from the UN with human rights statistics provided by the Cingranelli and Richards Index (CIRI) Human Rights Data Project. Using CIRI s Physical Integrity Index, I examine the change over time in member states respect for Physical Integrity Rights: each country is assigned a score annually that ranges from 0 (no government respect for citizens) to 8 (full government respect for citizens) regarding [to not conduct] Extrajudicial Killings, Disappearances, Political Imprisonment, and Torture. If I am correct that the alterations to membership reflect an institutional change for the better, then there should be a corresponding overall improvement in the average CIRI scores by geographic region under the Council, as compared to the Commission. When graphing the average CIRI scores by

6 geographic region, as they have changed over time, trends should be exhibited in the form of regressions: the groups who lost membership representation should display a more pronounced improvement in their average CIRI scores while the geographic regions who gained membership representation should display a more modest improvement in average CIRI scores, if at all. In the case of human rights, I recognize that the data should be assessed with a critical eye. Relying on the Cingranelli and Richards Index, or any other Index, it is important to understand the source. In the case of CIRI, their data is based on information provided by the U.S. State Department and Amnesty International. Though both are reputable, they are by no means omnipotent or immune to human error. Additionally, scoring violations to human rights does not tell the whole story: knowing that a zero is the worst CIRI score, is not necessarily as powerful as anecdotal evidence recounting instances of extrajudicial killings, disappearances, political imprisonment, or torture. My purpose for incorporating human rights statistics is to engage with a new form of institutional assessment, not to advocate that standardizing human rights violations is the best way to assess them. Ultimately, the data did in fact reveal trends, though they are modest. Among the groups that lost representative seats from the Commission to the Council, two of the three groups (only the African Group and the Group of Latin American and Caribbean states) exhibited the most pronounced improvement in scores. Of the two groups that gained representative seats from the Commission to the Council (Asian Group and the Eastern European Group), there was a slight decrease in their average CIRI scores. The Western European and Others Group is the only geographic region that does not follow a trend according to new restrictions to representation, as it lost seats from the Commission to the Council and there was a very slight decrease in average CIRI scores. Though the changes over time in the human rights statistics were not overwhelmingly revealing, they are modest and deserve attention. Bearing in mind the limited timeframe for studying the Council (it is only five years old), there is room for improvement in many areas. The data analysis portion of this thesis will focus on other aspects of the data as well as a variety of qualitative changes over time exhibited in member states. While the results presented in this thesis are preliminary in terms of making

7 conclusions about the Council, this thesis does demonstrate that this institution can be considered an improvement when compared to its predecessor. Well-respected critics like Professor Jack Snyder emphasize exclusivity in the human rights arena: that human rights work should be left to either the whistle-blowing non-governmental organizations, the passionate grassroots movements, or government structures that are in dire need of improvement. As this thesis will demonstrate, what human rights work requires is a forum that serves as a nexus for the governments, NGOs, and ordinary citizens to interact and function together, otherwise known as an international institution.

8 Chapter 2 Lessons from the Literature I begin with a review of previous research. The literature serves a variety of purposes: foundational, historical, and methodical. Some of the most important theorists and experts referenced in this chapter help to provide a basic understanding for the subject matter addressed and also to establish the value of conducting research for this thesis. The most important pieces of literature are highlighted according to their contributions. This literature review is not exhaustive, as I only highlight the authors and works I found to be the most relevant. Foundational Literature I conjecture that the two human rights institutions being studied were designed in a specific way, with the aim of promoting a specific set of human rights and influencing their members. I posit that these institutions were designed in order to facilitate human rights ideals and norms, reflecting the agendas of their member states. For this reason, the methodology emphasizes the role of member states when evaluating the two institutions. Wendt, Abbott and Snidal, and Barnett and Finnemore also advocate a similar position, referred to as constructivism. Wendt argues that institutions shape identities and interests, and not just actors behavior in the international system. 1 Abbott and Snidal address the inadequacy of international theory when it comes to explaining states motivations for joining and participating in international organizations, essentially combining institutionalism with social constructivism. They explain, that IOs (International Organizations) are in part both reflections of and participants in ongoing social processes and prevailing ideas. 2 1 Alexander Wendt, Constructing International Politics. International Security 20, (1) (Summer): K.W. Abbott, and D. Snidal. Why states act through formal international organizations. Journal of Conflict

9 Barnett and Finnemore focus on state actors, explaining that international organizations create new interests for actors (like promoting human rights ) but can ultimately lead to inefficient, self-defeating behavior. 3 In a similar vein, Risse highlights state motivations for joining international institutions, and highlights the challenge of legitimacy and accountability of member states. 4 Researching from a constructivist perspective, the literature highlighted aims to directly respond to some of the constructivist concerns mentioned above. For example, literature that focuses on state motivations for joining international institutions, member states accountability, and legitimacy of international institutions. The next body of literature contextualizes the international institutions, analyzing the transformation of institutions over the past century as well as the specific ones being studied. Historical Literature The historical literature can be divided into two categories, either broadly focusing on institutions in general, or with a specific emphasis on the two institutions being studied. Martin and Simmons, Cox and Jacobson address institutions in general, while Alston, Flood, Hannum, Lauren, Terlingen, and Mutua specifically focus on the two UN human rights institutions. Martin and Simmons provide a review of the scholarship focused on international institutions; address the way international politics should be treated relative to domestic politics; and finally look at the problem of research agendas. 5 Cox and Jacobson aim to assess how influence is exercised in international organizations, using eight international organizations as case studies. They also highlight membership, structure, and saliency as the institutional attributes that should be examined for studying and comparing them. 6 Though Cox and Jacobson s work Resolution 42 (1): 3. 3 M.N. Barnett and M. Finnemore. The politics, power, and pathologies of international organizations. International Organization 53 (04): Thomas Risse, Transnational governance and legitimacy. A.Benz and I. 5 Lisa Martin and Beth A. Simmons, Theories and empirical studies of international institutions. International Organization 52 (4, International Organization at Fifty: Exploration and Contestation in the Study of World Politics) (Autumn): pp Robert Cox and Harold Karan Jacobson, The anatomy of influence; decision making in international organization. New Haven: Yale University Press.

10 was composed decades prior to this thesis, their precise analysis of international institutions still bears relevance and provides lessons for my own assessment. Turning to more institutionally specific pieces of literature, Alston, Flood, Hannum, Lauren, Terlingen, and Mutua provide invaluable insights about the Commission and the transition to the Council. A well-respected expert of the United Nations, Alston critically appraises the United Nations human rights system as a whole, aptly conveying the specific weaknesses and accomplishments of the Commission in its historical context. Flood has a similar firsthand experience, after having served as the U.S. Department of State representative to the Commission. Flood also highlights the phases of the Commission and how they influenced the work of the institution. Both Alston and Flood conducted their analyses of the Commission in the nineties, focusing on the first fifty years of the Commission s lifetime. Though there is no comparison to the Council or focus on specifically why the Commission was replaced, both Alston and Flood provide very useful information from their unique viewpoints. Both Hannum and Lauren focus more on the transition from the Commission to the Council, and why the Commission needed to be replaced in the first place. Hannum demonstrates a clear understanding of the integration of human rights work in the context of UN bodies, aptly noting the important aspects of various member states, voting blocs, and the history of the two institutions under study here. Lauren provides a very detailed account of the transformation of the UN human rights work contained within each human rights institution. By assessing specific institutional shortcomings and incorporating the role of NGOs, Lauren does a more thorough assessment than Hannum. While both Hannum and Lauren highlight the why the Commission needed to be replaced, neither include a thorough comparison of the two institutions analyzed in this thesis. Yvonne Terlingen is one of the foremost experts in UN human rights institutions. She has served as Amnesty International s leader and has participated extensively in various aspects of the United Nations. In The Human Rights Council: A New Era in UN Human Rights Work she discusses the institutional transition that is the focus of this thesis. She explains why the replacement of the Commission was necessary, and highlights specific problems of either institution. Her unique insights

11 about the institutional change are invaluable for this research, especially for comparing the Commission to the Council. Mutua assesses human rights norms: where they came from, their value, and how they contribute to the foundation of human rights institutions. Mutua s work seeks to interrogate the processes and politics of standard setting in human rights by tracing the transition from the Commission to the Council. 7 Perhaps most importantly, Mutua focuses on the obstacles of UN human rights work and makes a thorough assessment of the UN Commission on Human Rights compared to the UN Human Rights Council. Additionally, Mutua addresses the intricacies of the UN human rights approach and defines some of the most important concepts in this area of research, namely norms, standards, and rights. However, Standard Setting falls short: the research is geared inwards, addressing the standards that exist within the UN, without addressing the impact those standards have on UN member states or relevant human rights situations. Even though the evidence used for this more formal comparison is different from what this thesis incorporates, it is valuable nonetheless. Looking at the direct relationship between United Nations work and human rights, Frederic Megret and Florian Hoffman look at the UN as a whole and how the UN conducts its human rights work. Looking at the Commission on Human Rights and the Human Rights Council, Megret and Hoffman explain why the UN is the preeminent institution in terms of human rights work, supporting the emphasis being placed on the United Nations human rights institutions. What Alston, Flood, Hannum, Lauren, Terlingen and Mutua provide is the crucial background information for this thesis: why the Commission needed to be replaced; how the transition took place; and the reasoning behind the Council s specific design. The next set of literature is valuable for different reasons. Rather than providing background information whether theoretical or historical the following authors directly contributed to the methodology design. Methodical Literature 7 Mutua Mutua, Standard setting in human rights, Human Rights Quarterly 29 (3):

12 Whether or not human rights can be quantified for measurement has been heavily debated. A variety of studies have incorporated human rights statistics, and debated their significance. Some of the most valuable research has been conducted by Hafner-Burton and Ron; Cingranelli and Richards; DeNeufville; Edwards, Scott, Allen, and Irvin; Simmons; and Jabine and Claude, as they provide necessary information for determining how to best incorporate human rights statistics. Hafner-Burton and Ron demonstrate how to empirically assess human rights, given its largely subjective and changing nature: they reference studies that incorporate statistics for analyzing human rights topics and also address statistical skepticism. This study points to the four preeminent sources for cross-national human rights data, most notably the Political Terror Scale (PTS) and the Cingranelli and Richards Index (CIRI). 8 After reviewing all four, and the information provided by Cingranelli and Richards, I chose to rely on data from the Cingranelli and Richards Index Human Rights Data Project for this thesis. David Cingranelli and David Richards provide more background information, discussing CIRI in The Cingranelli and Richards (CIRI) Human Rights Data Project. In this work, the authors provide an overview of their project and a summary of the fifteen human rights indicators used for quantification. Finally, Cingranelli and Richards explain how the CIRI data is produced. 9 Additionally, Judith De Neufville assesses the quality of the statistics provided by the U.S. State Department one of the main sources for both the CIRI Index and the Political Terror Scale (PTS). By discussing the consistency in definition, accuracy in measurement, and comprehensiveness in coverage, De Neufville demonstrates why relying on the State Department data (as both CIRI and PTS do) is worthwhile. 10 In Sins of Commission? Understanding Membership Patterns on the United Nations Human Rights Commission, Martin Edwards, Kevin Scott, Susan Allen, and Kate Irvin incorporate a 8 Emilie Hafner-Burton and James Ron, Review: Seeing double, World Politics 61 (2) (Apr.): pp David L. Cingranelli, and David L. Richards The Cingranelli and Richards (CIRI) human rights data project, Human Rights Quarterly 32 (2): Judith Innes De Neufville, Human Rights Reporting as a Policy Tool an Examination of the State Department Country Reports, Human Rights Quarterly 8(4):

13 methodology that combines empirical human rights data from CIRI and PTS, with UN membership data to determine the pervasive membership patterns that existed among UNCHR member states, stressing the role that regional dynamics play in shaping membership on the Commission. 11 While this study is insightful in terms of assessing the Commission on Human Rights and providing a methodological roadmap for my own research, it lacks an assessment of the Human Rights Council altogether. This is because this work was conducted just two years after the Council s establishment. Additionally, this work fails to link changes in membership with changes in the effectiveness of international organizations. 12 Simmons couples quantitative analysis with case studies that demonstrate how the ratification of one of the six core human rights conventions can influence agendas, litigation, and mobilization in particular, the domestic politics of the ratifying country. 13 One of the more challenging aspects of government ratification as addressed by Simmons is exposing and explaining the governments that are False Negatives and those that are False Positives. An example of False Positives used by Simmons, are the countries of Burundi, Uzbekistan, and Cambodia who have ratified all six of the core human rights treaties but are not paragons of respect for human dignity. Perhaps most helpful is the way Simmons synthesizes her methodology. She combines U.N. ratification data (which governments ratify which treaty and when) with specific human rights indicators geared to link domestic changes and mobilization with the treaty ratification. In summary, Simmons is able to demonstrate the theoretical and practical implications and incentives for government ratification of treaties; why a formal enforcement mechanism may not even be preferable for ensuring treaty compliance; and that ratification of human rights treaties has had positive consequences in much of the world Edwards, Martin S., Kevin M. Scott, Susan Hannah Allen, and Kate Irvin Sins of commission? understanding membership patterns on the united nations human rights commission. Political Research Quarterly 61 (3) (Sep.): pp Martin S. Edwards et.al, Sins of Commission, Beth Simmons, Mobilizing for human rights: International law in domestic politics, Cambridge ; New York: Cambridge University Press 14 Simmons, Mobilizing for Human Rights, 380.

14 Beth Simmons s study is useful because of the parallels that can be drawn for the methodology of this thesis. Simmons primarily seeks to determine why governments ratify international human rights treaties; how treaties can be effective without a formal enforcement mechanism; and whether a specific relationship exists between international human rights treaties and particular human rights situations around the world. Though this thesis does not place explicit emphasis on international human rights treaties, their role in human rights work is certainly relevant. Jabine and Claude make the best case for using human rights statistics in general. They discuss both the opportunities and limits for exploring human rights questions with the aid of statistical data gathering and analysis techniques in order to demonstrate that statistics applied to human rights issues can make a difference. 15 They also conclude by summarizing twenty-nine human rights data sources. Though their book was written in 1992, their lessons still apply, even today. Jabine and Claude provide invaluable information for incorporating and analyzing human rights statistics a broad enough focus with specific enough examples for current application. Professor Snyder s Pragmatic Approach to Human Rights I was able to attend a lecture by Professor Snyder in the fall of 2010, where he elaborated further on his Pragmatic Approach to Human Rights. Professor Snyder says that right now, human rights work operates through a skewed lens, and this has major drawbacks: universalism, legalism, and Western-based moralism may often hamper efforts to persuade communities whose political and cultural leaders have a vested interest in resisting alien normative revolution. He also argues that human rights work relies too heavily on treaty signing, naming and shaming, and moralistic rights campaigns. Snyder says research indicates that human rights treaties only work in successfully democratic countries that have stable court systems and a strong civil society, and that trade 15 Jabine, Thomas B., and Richard Pierre Claude Human rights and statistics : Getting the record straight. University of Pennsylvania press Pennsylvania studies in human rights. Philadelphia: University of Pennsylvania Press.

15 treaties with human rights clauses are only efficient with significant monitoring and penalties that force compliance. Using the issue of transnational justice as an example, Snyder explains that legalism is not always what we should rely on in the international system, pointing to the ineffectiveness of the International Criminal Court and referencing the advantages that come with amnesty, particularly in the cases of Mozambique, El Salvador, and South Africa. In the case of child labor, Snyder turns to the case involving the International Labor Organization and Bangladesh where the ultimate goal was to improve working conditions for children, not to make child labor illegal altogether, which consequently had severe backlash in Bangladeshi society. Instead, Professor Snyder argues for placing more emphasis on what he calls the pragmatic approach to human rights: 1) persuasion by engaging with the community s own normative discourse; 2) providing rewards and sanctions linked to human rights compliance; 3) efforts to change underlying circumstance (like poverty and war). Snyder believes that human rights work demands that we take into account the power and interests of key players; engage with the local communities to strengthen their own normative framework (instead of imposing Western notions); and address the underlying circumstances that directly relate to human rights (like poverty and war as mentioned above). The argument articulated by Professor Snyder in his lecture has great merit because it addresses a major problem in human rights work. Professor Snyder believes that the current approach, is top-down : relying too heavily on instituting laws, standards and norms born out of a Western ideology (which is not always welcome), international courts, treaties, and negotiations. He believes that relying more on what I am labeling a bottom-up approach will be more efficient: working directly with individual communities to discern and support their ideology, incorporating more incentives for human rights compliance, and directing efforts at changing underlying circumstances rather than simply following an international code of conduct to ensure that justice follows.

16 As I will seek to demonstrate in my thesis, the mechanism for combining Snyder s pragmatic, largely bottom-up approach with the more pervasive top-down approach to human rights exists in the form of international institutions, more specifically in the UN Human Rights Council. The mechanisms embedded the United Nations human rights institution include mechanisms like Special Procedures and the Universal Periodic Review. Through these pieces of institutional machinery, the international system can observe a nexus for all of the methods Snyder highlights: relying on treaty signing, naming and shaming, moralistic rights campaigns as well as the opportunity to engage with individual communities in discourse, to construct rewards and sanctions linked to human rights compliance, and to attempt to change underlying circumstances (like poverty and war). Concluding Discussion Many scholars have addressed aspects of the research being pursued in this thesis, and much of their literature has proven to be especially useful. Many experts have articulated the specific shortcomings of either the UN Commission for Human Rights or the UN Human Rights Council, or have gone further to compare the two by looking at their structural differences. Some scholars have looked at the bigger picture: looking at institutions largely resting on theoretical expectations and arguing for what should be accomplished by international institutions like the United Nations. Scholars have also found worth in the statistical side of human rights analysis, and some have examined different human rights indicators allowing for comparison of different UN member states. Even more importantly, a handful of scholarly works incorporates human rights statistics to link international institutions with human rights work, a variation of the methodology I use in this thesis. While assessing international institutions, understanding relevant theoretical paradigms, investigating human rights standards and norms, and demonstrating the worth of human rights statistics greatly contribute to my own knowledge base, a comprehensive incorporation of each of those subject areas has yet to be produced. The design of this thesis is unique and original because of its particular institutional comparison methodological design. Therefore, in a largely multidisciplinary fashion, this thesis compares the UN Commission for Human Rights to the UN Human Rights Council by

17 incorporating human rights statistics in order to demonstrate the value of international institutions for protecting and promoting human rights. Chapter 3 From the Commission to the Council The main purpose of this section is to systematically compare the UN Commission for Human Rights to the UN Human Rights Council, and establish the scope of this research. Their similarities and

18 differences can be divided into four categories, pertaining to status in the United Nations system, accession to membership, action (voting procedures), and institutional mechanisms. The methodology is designed to specifically focus on the changes to membership and this chapter demonstrates why that is. While I argue that all four of these institutional changes either improve or maintain the capabilities of the Commission, the changes to membership are particularly worthy of attention. This thesis has been broadly targeting UN Human Rights Institutions, which refers to Charterbased bodies and separately, to Treaty-based bodies. Charter-based bodies include the Commission and the Council, Special Procedures, and the Universal Periodic Review. Charter-based mechanisms constitute an element in the external policy environment of factors that a state takes into account in its domestic and foreign policy making Their effectiveness is also enhanced by the sustained commitment to the community of states to a particular mechanism, as expressed in periodic reaffirmation of its mandate. 16 Additionally, there are nine Treaty-based bodies that monitor implementation of the core international human rights treaties. The International Bill of Human Rights is the foundation for international human rights work. It consists of the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights (including two Optional Protocols); and the International Covenant on Economic, Social and Cultural Rights. The Treaty-based bodies include: the Human Rights Committee (CCPR); the Committee on Economic, Social and Cultural Rights (CESCR); the Committee on the Elimination of Racial Discrimination (CERD); the Committee on the Elimination of Discrimination against Women (CEDAW); the Committee against Torture (CAT); the Committee on the Rights of the Child (CRC); the Committee on Migrant Workers (CMW); the Committee on the Rights of Persons with Disabilities (CRPD); and the Committee on Enforced Disappearance (CED). This thesis will focus solely on the Charter-based bodies: the Commission and its replacement body, the Council. Special Procedures will be discussed in the context of both the Commission and the Council, and the Universal Periodic Review in the context of the Council s adopted Institution-Building Package. 16 Patrick James Flood, The effectiveness of UN human rights institutions, Westport, Conn.: Praeger.

19 The UN Commission for Human Rights On June 26, 1945, the Charter of the United Nations was signed, its Preamble proclaiming its purpose to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small. The Charter also outlines the responsibility of making recommendations for the purpose of promoting respect for, and observance of human rights and fundamental freedoms for all. 17 In 1947, the Economic and Social Council voted to create the Commission for Human Rights, to exist as a subsidiary body of ECOSOC. Since its first session in 1947, the Commission firmly established itself as the single most important United Nations organ in the human rights field, despite its subordinate status as one of several specialized ( functional ) commissions answerable to the Economic and Social Council and, through it, to the General Assembly. 18 It is important to note that the designated status of the Commission did not matter as much over the decades of its existence. In his appraisal of the Commission in 1991, Philip Alston noted that In the early years, ECOSOC was an important force and so was the Assembly. Over time, the role of the former waned so that by the 1980s it had become a virtual rubber stamp for the Commission. 19 In addition to the changing significance of its status within the United Nations, the membership of the Commission also changed drastically over the years. Originally, the Commission was comprised of only eighteen members and chaired by Eleanor Roosevelt. Members were elected by ECOSOC through a majority vote and served three-year terms. The membership of the Commission has been expanded gradually from eighteen in 1946 to twenty-one in 1962, thirty-two in 1967, forty-three in 1980, and fifty-three in On each occasion the rationale has been to ensure a more equitable geographical balance (i.e., to diminish the role of Western and Eastern Europe and enhance that of the Third World) Charter of the United Nations (1945), Preamble 18 Philip, Alston, The united nations and human rights: A critical appraisal, Oxford [England]: Clarendon Press 19 Alston, The united nations and human rights, Alston, The united nations and human rights, 195.

20 By 1992, membership expanded to fifty-three members and was apportioned by geographic region: fifteen members were designated to represent the African Group, twelve to represent the Asian Group, five to come from the Eastern European Group, eleven from the Latin American and Caribbean Group (GRULAC), and ten from the Western European and Others Group (WEOG). Additionally, Non-member states, National Human Rights Institutions, and Non-Governmental Organizations (though this was not the case at the beginning) were able to participate by submitting proposals, or speaking at designated times, although they were not allowed to vote. Over the course of its lifetime, the Commission received strong criticism regarding its member states, which was often very well deserved. The Soviets could support economic and social rights with enthusiasm but not if they threatened to impose any restrictions on Stalin s dictatorship. The Chinese could strongly advocate the right of self-determination and racial equality in European colonial possession but not if this forced domestic reforms at home Jan Smuts of South Africa could enthusiastically draft the language about the rights of all people for the preamble of the UN Charter but not if it committed his country to giving equal treatment to blacks. 21 In addition to the hypocrisy that grew to be characteristic of the Commission s members was the intense politicization of its work. During the Commission s annual session of this year [2001], Sudan, Sierra Leone, Uganda, and Togo were all elected to membership despite their well-known human rights abuses against domestic political opponents. 22 Similarly in 2003, the Libyan representative was elected to chair the Commission and the representative from Zimbabwe was elected to membership. Also towards the end of the Commission s lifetime, no meaningful resolutions were passed to condemn human rights violations by China, Cuba, Indonesia, Pakistan, Russia, Saudi Arabia, Sudan, or Syria Paul Gordon Lauren, "To preserve and build on its achievements and to redress its shortcomings," Human Rights Quarterly 29 (2): Lauren, To preserve and build, Lauren, To preserve and build,

21 The Commission s principal tangible output consists of resolutions and decisions. The methods by which these are negotiated have changed significantly over the years as a result of the expanded membership, the vastly more active role of observer States, and the increasing resort to consensus decision-making. 24 The only state that was consistently targeted by Commission action is Israel. According to UN scholar Anne Bavefsky, almost thirty percent of the resolutions passed by the UN Commission on Human Rights to condemn specific states have been directed at Israel, which also has the distinction of being the only state to which the commission has devoted an entire item on its agenda. 25 Additionally, the Commission s design proved to contribute to its politicization, with the influence of voting procedures and informal voting blocs. Under Article IX, the Commission s meetings were to be held in public. However, there was also usually a week of confidential sessions from which the press and public, including nongovernmental organizations, are barred. 26 Here also, governments are charged with various offenses against human rights and given an opportunity to defend themselves For those in the dock, the aim is to have one s country s case dropped or, at worst, merely kept under of review and not made the subject of an in-depth investigation by a special rapporteur or similar mechanism, even under these closed door rules. 27 According to Article XI, Rule 56, each member of the Commission had one vote, and decisions were made by a majority of members present and voting (members abstaining are considered not voting). Voting was conducted by raising hands, though members were given the option to request a roll call. An opportunity to explain a vote was allowed during the procedure. During most of its existence, the Commission met once a year, in Geneva, Switzerland in the spring for about six weeks. Otherwise, there were five Special Sessions. The Commission on Human Rights was authorized by the Economic and Social Council, in its Resolution 1990/48 of 25 May 1990, to meet exceptionally between its regular sessions, provided that a majority of the members of the Commission so agreed, mindful of the need for the 24 Alston, The united nations and human rights, Anne Bayefsky, The UN and the Jews, Commentary 117 (2): Flood, The effectiveness of UN human rights institutions, Flood, The effectiveness of UN human rights institutions, 40.

22 Commission on Human Rights to deal with urgent and acute human rights situations in the most expeditious way. 28 The first and second Special Sessions were called in August and December of 1992 pertaining to the territories of the former Yugoslavia; the third pertaining to the situation of human rights in Rwanda in May 1994; the fourth regarding the situation in East Timor in September 1999; and the fifth in October 2000 concerning Israel. What does the Commission have to show for its sixty years? The Commission first sought to establish a universal framework for human rights. According to Alston, in 1948, the UN General Assembly produced a monumental document after just two sessions of work, known as the Universal Declaration of Human Rights (UDHR). The UDHR is known as the first pillar of twentieth-century human rights law and the cornerstone of the universal human rights movement. 29 The Universal Declaration of Human Rights explicitly recognizes the link between rights and dignity. Human rights, then, are titles, rooted in the intrinsic value the dignity of every human being, to live and to have or to do things that are essential to lead a life in keeping with this dignity. 30 In addition to producing the UDHR, the Commission also established institutional mechanisms. In 1965 decolonization produced many newly independent African and Asian states, demanding alterations to the UN Charter. Only three years after the Commission itself was given formal authority to debate gross violations of human rights anywhere in the world, 31 two procedures were created. These developments resulted in the adoption of what eventually turned out to be two separate procedures. The procedure established under ECOSOC Resolution 1235 (XLII) established the principle that violations could be examined and responded to, and provided the necessary authorization for the Commission to engage in public debate on the issue each year. The procedure under ECOSOC Resolution 1503 (XLVIII) provided a carefully and deliberately constrained procedure by which situations which appear to reveal a consistent pattern of gross 28 Commission on Human Rights: Special Sessions, 29 Human Rights and the United Nations, 30 Flood, The effectiveness of UN human rights institutions, Hurst Hannum, Reforming the Special Procedures and Mechanisms of the Commission on Human Rights,. Human Rights Law Review:

23 and reliably attested violations of human rights could be pursued with the governments concerned, but in private. 32 The 1503 Procedure was a watershed in the attempts of the United Nations to more actively promote human rights. 33 Since this procedure requires filing complains secretly, it was often criticized for being slow and for excluding NGOs. However, the 1503 procedure also makes it possible for individuals or persons with reliable knowledge of violations to file communications, perhaps its most important attribute. 34 The Commission also constructed a system of Special Procedures, the general name given to the mechanisms to address either country specific situations or thematic issues in all parts of the world. 35 Special procedures are either an individual (called Special Rapporteur, Special Representative of the Secretary-General, or Independent Expert ) or a working group usually composed of five members (one from each region). The mandates of the special procedures are established and defined by the resolution creating them. 36 At the time the Commission was replaced, the Council was tasked with reviewing the remaining twelve mechanisms created by the Sub-Commission, and the remaining forty-four created by the Commission. Thirteen of the Commission s experts, rapporteurs or representatives are concerned with particular countries; most of the remaining mechanisms could be described as thematic, with the exception of the two working groups that are part of the 1503 procedure. 37 The Commission s final institutional mechanism worthy of discussion, effectively served as its think tank. The Sub-Commission on the Promotion and Protection of Human Rights was an appendage of the Commission, established in 1947 with twelve members. Originally, this body was named to focus specifically on the Discrimination and Protection of Minorities, renamed in Its main functions 32 Alston, The united nations and human rights, Hannum, Reforming the Special Procedures and Mechanisms, Alston, The united nations and human rights, Special Procedures of the Human Rights Council, 36 Special Procedures of the Human Rights Council, 37 Hannum, Reforming the Special Procedures and Mechanisms, 73-92

24 are to undertake studies on human rights issues, to make recommendations concerning the prevention of discrimination of any kind. 38 The overview of the Commission discussed its status in the UN system, its membership, the way it conducted its action, and finally the mechanisms it established. All four of these attributes changed over the course of the Commission s lifetime, as the status as a body of ECOSOC grew to be irrelevant; membership expanded according to geographic region; voting blocs grew in strength; and finally the institutional mechanisms were adjusted to directly confront the changing international system. Unfortunately, the CHR lost its integrity and direction over time; with much of its membership decisions, powers and focus coming to be fuelled by disreputable goals rather than motivated by the aim of promoting, protecting and advancing human rights. In order to recapture its fundamental purposes, therefore, the need for reform became crucial. 39 As a result in 2004 the UN Secretary-General, Kofi Annan sought to replace the Commission. Kofi Annan s Credibility Deficit In 2003, the Secretary-General convened a High-level Panel on Threats, Challenges, and Change to evaluate how our existing policies and institutions have done in addressing those threats; and to make recommendations for strengthening the United Nations. The full report is available online in the UN archive. During the fifty-ninth session of the Commission in 2004, Kofi Annan presented the report A More Secure World: Our Shared Responsibility. In this report, Annan highlights six clusters of threats which include war between States; violence within States; poverty, infectious disease and environmental degradation; nuclear, radiological, chemical and biological weapons; terrorism; and transnational organized crime. In the executive summary, mention of the success of the institution is included: The good news is that the United Nations and our collective security institutions have shown that they can work. More civil wars ended through negotiation in the past 15 years than in the previous 200. In the 1960s, many believed that by now States would possess nuclear weapons; the Nuclear Non-Proliferation Treaty has helped prevent this. The World Health 38 Sub-Commission on the Protection and Promotion of Human Rights, 39 N. Ghanea, From UN Commission on Human Rights to UN Human Rights Council, International & Comparative Law Quarterly 55 (03):