Is the Human Rights Council losing focus?

By Nicolas Agostini*

Some thought it was a mistake. Others took it as a joke. Many were flabbergasted. Last month, when the UN Human Rights Council’s program of work for 2022 was released, it listed an unprecedented 13 weeks of regular plenary sessions for the year—in other words, a staggering 65 days spent in session. Observers remarked that this total doesn’t include Universal Periodic Reviews (UPR) meetings, forums, working groups, seminars, and possible special sessions.

The inflation since the Council’s early days in 2006 is substantial. The HRC’s founding resolution provides for “no less than ten weeks.” Until the advent of online meetings due to COVID-19 restrictions, it was exactly that figure: no less, but no more than ten weeks (with more lunchtime meetings than took place in 2021, admittedly).

However, the Council’s program of work has long been overloaded—diplomats, UN officials, experts, and NGO representatives have frequently complained about it. They point to unsustainable practices that revolve around an increasing number of reports presented, debates held, statements delivered, resolutions considered, and expert mechanisms created.

THE KALEIDOSCOPE SPINS FASTER

Over its 15 years of existence, the Council has started to resemble a kaleidoscope, and online meeting practices have only made it spin faster. Today, its sessions look like an endless succession of statements, briefings, reports, debates, resolutions, amendments, points of procedure, and explanations of vote.

In 2021 alone, the Council adopted 88 resolutions (including five during special sessions), held 145 plenary meetings, considered over 80 reports, convened 17 panel discussions, and listened to thousands of state, expert, and NGO statements. It also held numerous inter-sessional activities.

New resolutions addressed topics as diverse as “harmful practices related to accusations of witchcraft,” “menstrual hygiene management,” or “the legacies of colonialism.” The Council also created new investigative and expert mechanisms tasked with reporting on specific countries or themes (for instance, racial justice and climate change). These added to the close-to-60 existing special procedure mandates. If the Council’s past practice serves as a guide, new resolutions and mechanisms inevitably means additional resolutions and mechanisms: Not much ever gets removed from the agenda.

In 2021, innovations such as an open-ended, permanent commission of inquiry and the setting of new standards (including the recognition of a “human right to a clean, healthy and sustainable environment”) were also introduced.

There is a growing and uneasy consensus among HRC watchers that efficiency measures adopted to rationalize its working methods and streamline its work have failed to deliver tangible results. Their only ‘achievement’ seems to have been disproportionate restrictions on civil society participation. Any positive effects (a reduction in meeting time) have been offset by resolutions requesting new reports, convening new debates, and creating new mechanisms.
The kaleidoscope spins ever faster. Its constantly-changing views, countless images, and endless variety of patterns have resulted in an inability to focus.

OVERLOADED WORK PROGRAMS AND THEIR DISCONTENTS

The HRC does undertake meaningful work. It responds to crises at an early stage (including when, in New York, the UN Security Council is paralyzed by its veto-holding members), launches independent investigations, stresses the need to hold perpetrators of abuses accountable, elaborates on the human rights obligations of states, provides technical support to them, and often places victims at the center of its resolutions.

States, NGOs, and national actors have invested in it—many of the former run for membership. When they’re elected, they present initiatives—if only to prove to domestic constituencies that they’ve done something. Myriad NGOs register for sessions in the hope that the causes they defend will be heard.

Yes, the Council does good things, but it does toomany things to make a real difference in the world. Its overloaded work program has adverse effects:

- Small delegations are unable to follow sessions thoroughly.
- Everyone (including within the Office of the High Commissioner for Human Rights [OHCHR]) is working on a shoestring and fighting for budget allocations.
- Few people truly pay attention to the contents of reports and substance of debates. Achieving what Aristotle achieved during his lifetime (mastering the totality of human knowledge) is now impossible for the observer during just one Council session!
- Those working around the Council are operating in silos, with everyone focused on their own niche. There’s not one Council, but many, coexisting Councils.
- Ambassadors are an increasingly rare sight in plenary meetings. This undermines the political value, image, and ultimately the legitimacy of Council meetings.
- Occasionally, there’s a rush that gives the impression of pandering to the media, when one country or issue cannibalizes the multilateral space. See, for example, how Afghanistan suddenly became a priority for so many in August 2021 (spoiler: the human rights situation there wasn’t exactly great before the Taliban took over).
- The Council is unable to ensure implementation of its resolutions, follow up on Universal Periodic Review (UPR) recommendations, and engage with on-the-ground actors and local practitioners. It’s focused instead on performative politics. By and large, members and observers are unable to escape the ‘Geneva bubble’—disconnection from the ground appears to be an inverse function of the number of Council initiatives.
- The never-ending expansion of debates, reports, and expert mechanisms that make the Council overworked may not even serve the cause of human rights. Work is often duplicated, reports repeat themselves, and mandates overlap; too much gets lost in a constant brouhaha.
- Finally, the million-franc question: Aren’t we diluting binding human rights norms when we overreach and frame anything desirable (from ethical principles to broad social goals) as ‘rights’? As leading human rights scholar Horst Hannum stressed, if the bar is too high and the ambition too broad, then human rights will inevitably be seen as failing.

NO EASY FIX

The UN human rights pillar remains chronically under-funded (receiving only 3.7% of the UN regular budget), but increased budgets would only fix some of the issues discussed here. Issues such as lack of focus, lack of prioritization, and lack of implementation would remain unaddressed—or be exacerbated, with consequences for the Council’s relevance and effectiveness.
A few priority measures could go a long way in addressing these issues:
- Rationalizing resolutions (bi-annualizing/tri-annualizing them). This effort has been launched, but it’s insufficient, and undercut by states working hard to flood the Council’s agenda with new initiatives. It needs to be optimized.
- Addressing the duplication of mandates. To take an example: Leprosy carries human rights implications for persons affected by it, but do we need a stand-alone special procedure mandate to address them? And another: Do we need a stand-alone mandate on ‘toxic waste’? This is unpopular, but a hard look at existing mechanisms is long overdue, and mergers should be considered.
- Discontinuing mechanisms. A human rights-based approach to everything is probably not possible, and the Council doesn’t necessarily have something useful to say on every single issue.

Adopting the “radically moderate approach” that Hannum suggests would mean re-focusing on core, binding legal obligations. He and others urge restraint in formulating new rights, which often blur the distinction between binding norms and soft law or politics. In this regard, an oft-forgotten resolution, UNGA resolution 41/120, and its guidelines for developing new rights, can help.

For the Human Rights Council, its members, and its observers, the risks of not addressing these issues—and of failing to pause, reflect, prioritize, and implement—are significant. To avoid losing track of the big picture, the Council should be more focused. Otherwise, it runs the risk of ineffectiveness—and consequently, of more and more states and institutions rejecting it.

*Nicolas Agostini is a researcher and a human rights expert working in Africa and Geneva