#108 The G|O Briefing, September 8, 2022

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

How much stress can the multilateral system endure? With no end in sight for Russia’s war in Ukraine and following China’s outright rejection of the UN report documenting human rights violations in the Xinjiang region, the questions here are: will the two countries continue to harden their position, and is constructive dialogue still even possible?

Today in The Geneva Observer, we report on the intense diplomatic efforts by Western countries at the Human Rights Council to craft a response to the China report from the Office of the UN High Commissioner for Human Rights.

On the same topic, we have a guest essay by Daniel Warner on the conundrum of balancing state sovereignty with international obligations; and The G|O’s Jamil Chade tells us that following a wave of optimism after the WTO’s last ministerial conference, the reality of great power politics is again sinking in.

HOW WILL THE HUMAN RIGHTS COUNCIL DEAL WITH THE UN'S REPORT ON CHINA?

By Philippe Mottaz

Last week’s publication of the OHCHR’s report on China is testing both the international community’s ability to defend the universality of human rights and China’s commitment to being the major and reliable multilateral player it claims to be. In the run-up to Monday’s opening of the 51st session, diplomatic consultations of a rare intensity are underway in Geneva to ensure that the OHCHR’s report is not ignored and that further actions will be taken.

Since the report was not mandated by the Council, however, such a move would require a vote. For the West and its like-minded friends and allies, that means getting enough votes to pass a resolution—not an easy task given the HRC’s composition and the influence wielded by China and its allies, Russia included.

UNPRECEDENTED STAKES

Outside of China and its friends, the report has been widely praised for its quality and its conclusions. Western diplomats here agree that the human rights violations documented in the report against Uyghurs and other minorities, which “may constitute crimes against humanity,” cannot be ignored. But in an extremely tense and volatile geopolitical context and with war raging in Europe, there is no agreement at this point on how or when to act. The stakes are unprecedented.

“We are now dealing with human rights violations committed by China and by Russia, two great powers, and two of the five permanent members of the UN Security Council,” notes a senior Western ambassador. “It is essential that the OHCHR remains free to issue a report on any country. The West is not immune to the criticism of double standards. But I fear that if a majority of the members of the Human Rights Council were to decide not to investigate further, it would actually mean that it is not willing to defend the principle of the universality of human rights embodied in the Universal Declaration of Human Rights. It would mean entering an entirely different world.”

Beijing slammed the report as a “farce” in a statement put out by its Geneva mission a few hours after its publication, denouncing it “as 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.”

WHAT TO DO AND WHEN?

In light of China’s response, Western diplomats and those like-minded countries engaged in current discussions are divided over the question of when to submit a resolution before the Council. Some argue that waiting for next year’s March session might give them more time to secure the votes. This would also avoid having two items of major importance before the Council as it prepares to debate human rights violations in Russia and Ukraine. “Waiting may ensure that our response is appropriate in dealing with the severity of the violations. There is no statute of limitations on war crimes,” a diplomat familiar with the ongoing discussions said. “It’s a safe bet that the HRC will not be able to call for the creation of a Commission of Inquiry on China,” another HRC insider told The G|O.

“In the current climate, passing a resolution to engage with China would already be an enormous achievement.” “I must admit to having been surprised by China’s reaction to the report,’’ a seasoned diplomat told a group of Geneva-based UN reporters. “It was the same rehash of old positions. I suspect they were caught by surprise and didn’t have time to frame a more serious response. No country is perfect or immune to criticism. I would hope that China will follow the report’s recommendations.”

Should Beijing decide not to do so, the weakening of the multilateral system will only continue—and it may soon reach a critical point.

-PHM

WTO: STILL NO FIX FOR THE APPELLATE BODY

By Jamil Chade

In today’s tense and polarized climate, achieving success in a multilateral forum should be saluted. And that’s exactly what the WTO’s D-G Ngozi Okonjo-Iwaela did last Monday (September 5) in Rotterdam. Reflecting on last June’s Ministerial Conference (MC12), she said: “At the WTO ministerial, we were able to strike real agreements with Russia, Ukraine, the United States, and China among the 164 countries around the table. This is no mean feat. I’m highlighting it because it shows that multilateralism can work. There is [a lot of] gloom and doom, but [this] is a place where we’ve shown that global cooperation and solidarity can work,” she said. The irony is that she delivered her remarks at the Africa Adaptation Summit, a gathering on climate change ignored by the West, and at a time when progress on many fronts, on the ground at the WTO, is proving exceedingly difficult.

If MC12 undeniably demonstrated the willingness of countries to keep talking and working together multilaterally in spite of major rifts, diplomatic sources tell The G|O that the optimism that prevailed at the Conference’s conclusion is now being tempered in light of recent developments. On August 29, the hope of finally reaching an agreement that would break the paralysis of the Appellate Body, the WTO’s supreme body for ruling on trade disputes, was dashed by Washington. China, the world’s second-largest economy, still claims exemptions as an ‘emerging economy’ 21 years after it joined the organization, and the US wants this status amended.

Against this backdrop, the US restated its long-held position that it does not support the proposed decision to allow the nominations of new judges. Instead, Washington reiterated its stance that the entire settlement system be reformed first. The US administration considers that in its current form, the Appellate Body does not serve the real interests of its members.

Tabled by Mexico, the push to restart the Appellate Body’s operations was supported by 125 countries, with 20 delegations taking the floor to express their support. They reiterated the importance of the WTO’s two-tiered dispute settlement system to the stability and predictability of the multilateral trading system. Several of them also noted the commitment made by ministers at the WTO’s 12th Ministerial Conference to engage in discussions aimed at securing a fully functioning dispute settlement system by 2024, pledging their support for a resolution within the prescribed time period.

Frustration was evident at the meeting, as Mexico insisted that the concerns of some members shouldn’t serve as a pretext to disrupt the work of dispute settlement in general. “Dr Ngozi came out of the Ministerial Conference with important political capital. But she may burn it rapidly. Summer is definitely over,” a European diplomat told The G|O. The EU has been pushing for a quick resolution of the issue, which now appears unlikely before 2024.

-JC

THE CONUNDRUM OF BALANCING STATE SOVEREIGNTY WITH INTERNATIONAL OBLIGATIONS

By Dr Daniel Warner

At the last moment, close to midnight on August 31, the Office of the United Nations High Commissioner for Human Rights (OHCHR) released a report on the human rights situation in China. The Office was under enormous pressure by human rights groups to release the report before the High Commissioner left office on that day. The Chinese government, meanwhile, put enormous pressure on the Office not to release the report or to release it with major revisions. The document accused China of human rights violations that “may constitute international crimes, in particular crimes against humanity,” in its treatment of Uyghurs and other Muslim groups in the Xinjiang region.

Michelle Bachelet travelled to China in late May 2022. She was the first High Commissioner to visit China in 17 years. Bachelet saw the visit as “an opportunity to hold direct discussions—with China’s most senior leaders—on human rights…with a view to supporting China in fulfilling its obligations under international human rights law.”

Even before she went to China, Bachelet was criticized for her China agenda. Over 220 regional groups expressed concerns that the trip risked “walking into a propaganda minefield laid out by the Chinese Communist Party.” Bachelet and her Office were torn between the political power of China and what they saw as grave human rights violations. Bachelet said China and about 40 other countries had asked her not to publish the report. In explaining the delay in the report’s release, Bachelet said she “wanted to take the greatest care to deal with the responses and inputs received from the [Chinese] government…” As pressure mounted during her last week in office, Bachelet insisted, “We’re trying very hard to do what I promised.”

While it is easy to show how China has used its power to influence international institutions in Geneva, such as the World Trade Organization and the World Health Organization, it is obvious that the delay in publishing the report further calls into question the role of the United Nations in promoting human rights.

The controversy over the report and its delay is an excellent case study of the tension between state sovereignty and universal norms. Professor Richard Falk, in his book The Endangered Planet, points to the contradiction between the “logic of the state system and the logic of the UN Charter.” The logic of the state system harkens back to the Peace of Westphalia where each state was allowed sovereignty to choose its rules and regulations within its borders. The logic of the UN Charter begins with the Preamble to the Charter which starts, “We the Peoples.”

Falk’s argument, developed in 1971, is that major crises facing the world, such as nuclear war and ecology, need global solutions. The state system, based on individual state sovereignty, is limited in its ability to cope with global problems. The state system, Falk argued, is archaic. State sovereignty, formally established in 1648 after the Thirty Years’ War, has eroded because of technology, nuclear weapons, and environmental issues. Alternative organizational bases beyond the state system, Falk wrote, are needed to solve global problems. China prioritizes national sovereignty over international institutions. “[China] will emphasize ‘constructive dialogue,’ [as in] states between themselves should engage in constructive dialogue and make polite suggestions, but they should not be finger-pointing, they should not be laying blame,” Frédéric Mégret, co-director of the Center for Human Rights and Legal Pluralism at McGill University, was quoted as saying.

Michelle Bachelet was in a conundrum as to how far she could criticize China. On the one hand, she favored dialogue. On the other hand, she knew the situation “may constitute international crimes.” While her Office’s report does contain sharp criticism of China—which the Western press has emphasized—the report’s delay and last-minute publication show how state sovereignty and nationalistic politics continue to exert enormous influence over international norms, obligations and institutions.

Multilateralism is proving inadequate to deal with major global issues, with no obvious alternative in sight. Donald Trump’s cry of “Make America Great Again” reflected increased nationalism among great powers like the United States, China and Russia. The planet may be endangered, but there is no organizational structure for the moment to deal with its pressing problems.

Lots of reports mention “grave breaches” and “serious violations” but have little effect. The United Nations has been incapable of promoting peace and security in the Russia-Ukraine conflict. A Geneva journalist correctly summarized the long delay in the China report’s release; “As for Beijing’s ability to exert a major influence on the UN and its human rights system, the Office of the High Commissioner has long resisted, but today the dike has been breached.”

Bachelet and her Office tried to placate China by delaying the report while trying to satisfy human rights groups by publishing a critical report on human rights in the Xinjiang region. The Office of the High Commissioner has been weakened by the delay. It remains to be seen if the report’s criticisms will have any effect on China’s policies. Trying to have it both ways in contradictory situations is never an optimal solution.

-DW

Today's Briefing: Philippe Mottaz - Jamil Chade - Daniel Warner

Edited by: Dan Wheeler