#107 The G|O Briefing, September 1, 2022

This is an onsite, slightly edited republication of the complete G|O Briefing newsletter

Today in the Geneva Observer, we focus on the long-awaited release of the UN human rights office’s report on China, and its potential impact—not just on the UN itself, but also in terms of the international community’s response to the UN’s conclusions. Dealing with the report will be a difficult task; an early test, no doubt, for Michelle Bachelet’s successor at the UN Office of the High Commissioner for Human Rights (OHCHR), and a thorny challenge for the UN as a whole. The G|O Jamil’s Chade looks into the nominating process for Bachelet’s successor and the (geo)political considerations underlying Antonio Guterres’ difficult choice.

We live in a time of profound and concurrent crises. We have a guest essay by Bertrand Ramcharan addressing mankind’s biggest threats, including climate change, and specifically the lack of urgency in the response from the UN International Law Commission (ILC). “The ILC fiddles as the Earth burns,” writes the former special adviser to the UN Secretary-General, a noted expert on international law.

It's all below. As always, thank you for reading us.

A BLISTERING REPORT AND A NEW CHALLENGE FOR GENEVA. HOW TO DEAL WITH IT?

By Philippe Mottaz

China has committed “serious human rights violations” in the Xinjiang Autonomous Region. “The extent of the arbitrary and discriminatory detention of members of Uyghur and other predominantly Muslim groups […] may constitute international crimes, in particular crimes against humanity.”

Finally released by the UN human rights chief, Michelle Bachelet, just a few minutes before leaving office at midnight yesterday (August 31), the long-awaited report from the Office of the High Commissioner for Human Rights (OHCHR) is damning. The 46-page document confirms and complements credible and detailed information collected by Uyghurs and other Muslim minority survivors, human rights organizations, NGOs, media organizations, researchers, and governments over the last few years. But the report’s true significance lies in the fact that these accounts have now been given the imprimatur of the UN human rights office, providing the organization and the international community with a new opportunity to deal with the accusations that China continues to vehemently reject. Not only will the body of evidence amassed be extremely difficult for China to refute, but in the process of suppressing the report, Beijing has revealed the bluntness of its method in trying to avoid being held accountable.

"AN UNPRECEDENTED CHALLENGE TO BEIJING'S LIES"

The report is “an unprecedented challenge to Beijing’s lies and horrific treatment of Uyghurs […] The High Commissioner’s damning findings explain why the Chinese government fought tooth and nail to prevent the publication of her Xinjiang report, which lays bare China’s sweeping rights abuses,” said Sophie Richardson, China Director at Human Rights Watch (HRW). Richardson has been one of Michelle Bachelet’s most vocal critics since the UN human rights chief agreed to visit China, largely under Beijing’s terms. Richardson also urged the UN Human Rights Council to investigate China’s “crimes against humanity targeting the Uyghurs and others and hold those responsible to account.”

Pressure has also come hard and fast from other human rights organizations: “The inexcusable delay in releasing this report casts a stain on the [U.N. Human Rights Office’s] record, but this should not deflect from its significance,” wrote Agnès Callamard, Amnesty’s International Secretary General.

Dolkun Isa, President of the World Uyghur Congress, who recently told The G|O he felt betrayed by Michelle Bachelet, praised the report’s conclusions and its publication. “It paves the way for meaningful and tangible action by member states, UN bodies, and the business community.”

NO CAVING IN TO CHINA'S MASSIVE PRESSURE

There had been fears from the victims of China’s repression, the human rights community, NGOs and governments that Michelle Bachelet—and her boss—would be accommodating to Beijing; but it is now clear that these fears have not materialized. Beijing tried until the last hour to prevent the release of the OHCHR report, sending a last-minute 121-page note verbale to Bachelet’s office, opposing its release and trying to rebut the report’s conclusion. But there was, in the end, no caving in to China’s massive pressure.

Beijing’s power and influence within the UN system have steadily increased over the years. Under Xi Jinping’s guidance, the Chinese Communist Party, while portraying itself as fully committed to the multilateral system, has leveraged its economic and financial clout to try toreshape the global governance system at the UN and other multilateral organizations and, in particular, to present an alternative vision of human rights. China is not alone in using its clout and diplomacy to fend off investigations into human rights abuses, but most experts agree that China is the most strident in its pushback and that a growing ideological divide now separates China’s vision from countries that defend and promote fundamental human rights as embodied in the Universal Human Rights Declaration (UDHR) and its covenants.

BEIJING CALLS THE REPORT "A FARCE"

A few hours after the release of the report, the Chinese mission in Geneva put out a statement calling the “so-called ‘assessment’ on Xinjiang” a “farce” and a politically-motivated attempt to smear China. “It is completely a politicized document that disregards facts and reveals explicitly the attempt of some Western countries and anti-China forces to use human rights as a political tool,” the statement said.

The next potential step could be for the Human Rights Council (HRC) to accept the creation of a commission of inquiry to investigate China’s human rights violations denounced in the report. Many HRC watchers, including several governments, have long considered that the body of credible evidence of egregious violations in the Xinjiang province collected over the years was sufficient for the HRC to establish a commission of inquiry. The fact that it has not done so, many say, is a reflection of China’s power at the UN. However, the report’s publication might change the dynamics at the HRC when it meets on September 12 for its 51^st session.

In her final remarks to the Council last Tuesday (August 30), partly explaining the rationale behind her decision to travel to China, Michelle Bachelet told the members: “We must do everything possible to avert a great fracture and maintain a universal system, a multipolar world with strong multilateral institutions and universal respect for international law.” Today, how to do so is one of Geneva's and the international community's biggest challenge and opportunity.

-PHM

THE COMPLICATED PROCESS OF FINDING A SUCCESSOR TO MICHELLE BACHELET

By Jamil Chade

The renewed struggle between great power politics and human rights is the backdrop before which the new UN High Commissioner for human rights will be chosen. The process is mobilizing missions in Geneva, delegations in New York, and civil society to try to influence UN Secretary-General Antonio Guterres’ decision on who should succeed Michelle Bachelet.

The job is one of the most exposed in the UN, but that has not stopped more than fifty people from coming forward—some of whom have even phoned Bachelet directly to express their interest. She, however, will have no influence on the decision—at least, not officially. She left Geneva this morning.

The process has been widely attacked for its mismanagement and delay, especially considering Bachelet’s hurried departure. Cynics might suggest this has been a deliberate attempt to manufacture a sense of urgency and present the General Assembly with a fait accompli. Either way, the process is now in its final stages: A shortlist has been established, and the five candidates are now being interviewed by a committee set up by Guterres. Its members will evaluate the applicants’ views and position on fundamental rights but also dwell on their background and experience.

The names of the remaining favorites will be submitted to the UN chief, who will then make his choice; a decision heavily weighted by political considerations. With a crisis between Russia and NATO, another between China and the US, and in a climate of deep international mistrust, diplomats here and in New York readily admit that this will not be an easy puzzle to put together.

HOPING FOR AN ACCLAMATION, NOT A VOTE AT THE UN GENERAL ASSEMBLY

Once chosen, Guterres’ candidate will have to be approved by the UN General assembly. The hope is to find among the shortlist a candidate who does not need to be confirmed by a vote but by broad acclamation—as was the case for Bachelet and all recent nominees for the position. A vote would be perceived as a sign that the new High Commissioner might begin his or her tenure with authority and credibility questioned. It will thus be interesting to see whether, in the current climate of tensions and a few days after the long-awaited release of a scathing OHCHR report on China, a UN High Commissioner for human rights can indeed be confirmed by consensus.

In Geneva, informed diplomatic sources tell The G|O that Latin American governments are pressuring Guterres to appoint another candidate from their region. Bachelet, they argue, would have had the right to another four years had she not resigned, and they see no reason not to reappoint a Latin American candidate.

A GENEVA AMBASSADOR ON THE SHORTLIST

Sources tell us that this explains the presence on the shortlist of the Argentinian ambassador to the UN in Geneva. As president of the Human Rights Council, Federico Villegas might be acceptable to Chinese, Russians, Americans, and Europeans alike for the way he has conducted debates in recent months. However, missions here have been discreetly told he is not Guterres’ favorite candidate. In this context, while he enjoys the support of several governments, OHCHR watchers tell us that an intense lobbying effort on his behalf would have to be mounted for Villegas to have a chance.

If the loose principle of rotation were to be respected, it would be Eastern Europe’s turn, but in view of the crisis between Ukraine and Russia, the region was unable to reach an agreement around a common candidate.

If the process so far has been largely political, NGOs for their part still bemoan the lack of transparency in the nominating process and the absence of any sustained and meaningful engagement from Antonio Guterres towards civil society.

“It’s essential that Guterres consult with the human rights community as he searches for a new High Commissioner,” said Human Rights Watch. “The High Commissioner is not a diplomat, but the world’s chief human rights advocate. Speaking out publicly about abuses around the world needs to take precedence over friendly dialogue with governments. Courage is needed not just by the high commissioner in the future, but [by] the secretary-general today,” they claim. Both HRW and Amnesty International claim no consultations have been held with civil society.

The opening session of the Human Rights Council, on September 12, will begin before a new High Commissioner is installed at the Palais Wilson. Bachelet’s deputy, Jordan diplomat Nada Al Nashif, will gavel the session as acting Commissioner. Antonio Guterres got himself some time. But the pressure remains.

-JC

THE UN INTERNATIONAL LAW COMMISSION FIDDLES AS THE EARTH BURNS

By Dr Bertrand Ramcharan*

The Earth is burning, afflicted by climate change, environmental destruction, and the criminality of pervasive gross violations of human rights world-wide. And yet the International Law Commission (ILC) has just submitted to the UN General Assembly twenty-three “Conclusions” on peremptory norms of international law—or ‘jus cogens’ in technical parlance—which bear little relevance to this dire state of affairs.

A GRIEVOUS CONCEPTUAL GAP...

Using a hallowed definition, the ILC defines a peremptory norm of general international law (jus cogens) as a norm accepted and recognized by the international community of States as a whole, from which no derogation is permitted (Conclusion 3). So far, so good.

Peremptory norms, it adds, reflect and protect fundamental values of the international community. They are universally applicable and hierarchically superior to other rules of international law (Conclusion 2). Partially good: values, yes; but what about the survival of the Earth and its inhabitants? There is a grievous conceptual gap here. A more appropriate conclusion might have read: “reflect and protect fundamental values of the international community and the imperative need to protect the survival and welfare of the Earth and its inhabitants.”

...AND A CRIPPLING OMISSION

To identify a norm as jus cogens, the ILC considers that there must be evidence that such a norm is accepted and recognized as such by the international community (Conclusion 6). The traditional bases for peremptory norms, it adds, are customary international law, treaty provisions, and general principles of law (Conclusion 5).

However, there is a crippling omission here: authoritative pronouncements by the assembled leadership of the international community—in statements such as the Millennium Declaration, for example. When, in the 1960s, the UN General Assembly declared outer space and the celestial objects to be the common heritage of humankind, distinguished international lawyers—including my former teacher Professor Bin Cheng, an authority on sources and methods of international law—wrote that the General Assembly resolution represented “instant international customary law.”

Faced with pressing challenges to the survival of the Earth and its inhabitants, it is now necessary to bring into our reasoning the concept of ‘instant jus cogens.’ One might derive such peremptory norms, for example, from the recent resolution of the UN General Assembly declaring the human right to a safe, healthy and sustainable environment.

According to the ILC, forms of evidence for acceptance and recognition of peremptory norms include: “public statements made on behalf of States; official publications; government legal opinions; diplomatic correspondence; constitutional provisions; legislative and administrative acts; decisions of national courts; treaty provisions; resolutions adopted by an international organization or at an intergovernmental conference; and other conduct of States” (Conclusion 8). Authoritative statements of world leaders would fit here.

SURPRISING ABSENCES

The International Law Commission further concludes that States shall cooperate to bring to an end, through lawful means, any serious breach by a State of an obligation arising under a peremptory norm (Conclusion 19). Here, it would be fair to ask why this only covers breaches by States—what about non-State actors? Given the increasing power of Big Tech, and the pressing need to protect natural resources (to name but two factors), this appears to be a huge oversight.

In Conclusion 23, the ILC provides the following “non-exhaustive list of norms that the International law Commission has previously referred to as having that status”—namely, that of a peremptory norm of general international law:

1. The prohibition of aggression
2. The prohibition of genocide
3. The prohibition of crimes against humanity
4. The basic principles of international humanitarian law
5. The prohibition of racial discrimination and apartheid
6. The prohibition of slavery
7. The prohibition of torture
8. The right to self-determination

In its report transmitting its Conclusions to the General Assembly, the ILC commented that these norms “are presented in no particular order. Their order does not, in any way, signify a hierarchy among them.” The ILC acknowledges that “To elaborate a list of peremptory norms […] even a non-exhaustive list, would require a detailed and rigorous study of many potential norms to determine which of those potential norms meet the criteria set out in […] the present draft conclusions (A/77/10, Commentary to Conclusion 23).

That’s all very well, but the non-exhaustive nature of the list notwithstanding, there are some surprising absences—born, we would suggest, out of the fact that the ILC has apparently placed “fundamental values” over the protection of the Earth and its inhabitants. Most notably, while including “principles of humanitarian law,” it seems fairly extraordinary that the Commission did not also include “the basic principles of international human rights law.” Surely Fundamental Universal Rights—including, of course, the right to life—self-evidently have the status of peremptory norms? Furthermore, States have a legal duty to have in place an adequate and effective national human rights protection system.

The international legal landscape is a challenging one, and we should be grateful to the ILC for these ‘Conclusions’ on peremptory norms. Most of the omissions above—the failure to recognize authoritative pronouncements by the assembled leadership of the international community as a source of peremptory norms; the failure to recognize Fundamental Universal Rights as a peremptory norm; the failure to consider breaches by non-State actors—are oversights that can be amended.

However, it behooves us to observe that the ILC appears to have blithely performed a technical task while what is at stake is our very survival—it is fiddling while the Earth burns. Consideration of peremptory norms of general international law should have led the ILC to consider the most pressing issues: States have a legal responsibility to protect (RtoP) their populations from genocide, ethnic cleansing, crimes against humanity, and war crimes—and above all, to act for the protection and preservation of the Earth and its inhabitants.

We offer these observations as a contribution to enhancing the Conclusions of the ILC—while acknowledging and appreciating its effort thus far.

Dr Ramcharan is a former Special Adviser to the UN Secretary-General and Chancellor of the University of Guyana. His last book is Modernizing the Role of the International Court of Justice. (Asser/Springer, 2022).

Today's Briefing: Philippe Mottaz - Jamil Chade

Guest Contributor: Dr Bertrand Ramcharan

Editorial Assistance: Ciara O'Donoghue

Edited by: Dan Wheeler