Abstract
Before leaving his post in 2018, the outgoing UN High Commissioner for Human Rights, Zeid Ra’ad al Hussein, made a series of critical remarks, both publicly and internally, regarding what he considered weakening of the integrity and effectiveness of the UN in its human rights mandate. Zeid’s comments highlighted retrogressive tendencies making the task of a strong and independent High Commissioner exceedingly difficult. The post of High Commissioner, established in 1994 following decades of advocacy, to give a high level voice to human rights promotion and protection as well as to manage a secretariat for most UN human rights functions, has enjoyed mostly robust and effective leadership by its post-holders. Any High Commissioner faces challenge inherent to the job in balancing the functions of diplomat, human rights advocate for “the voiceless”, and agency manager working with an insufficient and patently unfair budgetary allotment. The new High Commissioner, Michelle Bachelet, will have her work cut out, as she faces an apparent retreat from prioritizing human rights, particularly by some States that previously championed them; ambivalence by a wider UN bureaucracy; and a wave of authoritarian populist leaders and movements around the globes that take a hostile view to the human rights paradigm. The new High Commissioner would do well to keep her energies squarely focused on independently tackling urgent substantive and possibly existential human rights challenges, rather than any project of administrative restructuring of the OHCHR, even as she may pursue a working methodology that is distinct from the approach of her predecessors.
Introduction
During the twilight weeks of his tenure earlier this year, the outgoing UN High Commissioner for Human Rights, Zeid Ra’ad al Hussein, in a series of remarkable comments made in both private and public settings, set off some alarm bells about the health of the UN human rights system, and in particular the high level post he had held for four years. Explaining to staff his decision not to seek a far from certain reappointment, he wrote: ‘After reflection, I have decided not to seek a second four-year term. To do so, in the current geopolitical context, might involve bending a knee in supplication; muting a statement of advocacy; lessening the independence and integrity of my voice — which is your voice.’
1
Zeid’s discontents
High Commissioner Zeid made it known generally that the pressures and obstacles to the Office’s work he had been facing were formidable and he concluded that his position had essentially become untenable. The High Commissioner, though having a strong diplomatic pedigree in the Jordanian Foreign Ministry, had approached his work more as a principled truth-teller than as an agency manager. Some of his instincts were likely forged from his background in pushing for strengthening international justice, particularly through the instrument of international criminal law. In his role as human rights advocate, he made governments – and apparently some other UN officials – uncomfortable, as he pulled few punches in decrying the human rights abuses of globally powerful States. He had expressed repeated concerns with the retrograde human rights effects of the ever-cresting wave of new authoritarian “populists”, including US President Trump’s administration, which he took to task more than once. 2
These aspects of Zeid’s approach hardly need an insider’s accounting. They are manifest in the very public record of speeches at events, statements and press releases issued by his office. In his reports and statements to the UN Human Rights Council, presented three times a year, a significant number of States were called out for opprobrium, often in sharp terms. For example, in the final statement of his tenure, presented in June 2018, the High Commissioner directed criticism at Syria, Myanmar, Venezuela, Burundi, India and Pakistan on Kashmir, Nicaragua, the Democratic People’s Republic of Korea, Israel, China, Turkey, Bahrain, South Sudan, Rwanda, Indonesia, Bangladesh, Mexico, Cameroon, the Russian Federation, Hungary, and the United States. 3 In addition, he pointed to numerous other countries regarding issues of non-cooperation with the UN human rights system.
But what was perhaps most striking, and a stark departure from the front of amicable relations usually displayed among officials from the UN family, was his criticism of the UN as a whole and the erosion of multilateralism on human rights: ‘[W]hy is the Universal Declaration, and the whole body of human rights law that followed it, the object of so much attack now –- not only from the violent extremists […] but also from authoritarian leaders, populists, demagogues, cultural relativists, some Western academics, and even some UN officials? I have spent most of my career at, and in, the UN. What I have learned is this: the UN is symptomatic of the wider global picture. […] There is a dangerous remove and superficiality to so many of our discussions, so much so that the deepest, core issue seems to have been lost on many. Is it not the case, for example, that historically, the most destructive force to imperil the world has been chauvinistic nationalism – when raised to feral extremes by self-serving, callous leaders, and amplified by mass ideologies which themselves repress freedom. The UN was conceived in order to prevent its rebirth. Chauvinistic nationalism is the polar opposite of the UN, its very antonym and enemy. So why are we so submissive to its return? Why are we in the UN so silent? The UN’s raison d’être is the protection of peace, rights, justice and social progress. Its operating principle is therefore equally clear: only by pursuing the opposite to nationalism – only when States all work for each other, for everyone, for all people, for the human rights of all people – can peace be attainable. Why are we not doing this?’
4
Zeid’s approach has not been universally well-received, even by some staunch human rights advocates. Professor Olivier de Frouville, a well-respected member of the UN Human Rights Committee, expressed the view that the “megaphone diplomacy” exercised by the High Commissioner had not always been strategically deployed. 5 Zeid had not only effectively burned bridges with “populist” leaders, but also had not been particularly well-received by more human rights friendly governments. Professor de Frouville pointed out that the High Commissioner was not the only independent authority in the UN human rights system. He charged the High Commissioner with having played a part in weakening the role of the independent experts, such as the Human Rights Council Special Procedure mechanisms, Treaty Body experts and others who shared the responsibility for implementing the UN’s human rights strategy. 6
The charged role of the High Commissioner today
It cannot be easy to pull off the tight rope balance between the potentially clashing roles that a High Commissioner must play: insider diplomat; public voice of victims of violations; promoter of human rights standards; and, agency manager. Beyond the individual person of the High Commissioner, there is the institutional role of the Office itself, which carries its own dynamics. The work of the OHCHR goes on, irrespective of the conduct of the personality at the top. Much of this work has remained consistent and stable even with the shifting of High Commissioners over time. Nonetheless, even here, it seems not at all sensible to try to decouple the strains on the OHCHR as an institution from the wider global malaise facing human rights in the current geopolitical climate. With authoritarian “populist” regimes seemingly on the ascendancy in all parts of the globe, and respect for the rule of law in retreat, it is perhaps not altogether surprising that the OHCHR and its functions have been taking a particularly stinging hit.
Some of the institutional challenges bedevilling the effectiveness of the system are nothing new, but have simply compounded certain longstanding defects. There is, in the first instance, the obscenely subordinate position that the UN human rights system has occupied in terms of its overall financial allotment, which amounts to a mere 3% of the UN budget. This arrangement has persisted despite the fact that, along with global security and development, promoting and encouraging respect for human rights is one of the three professed purposes of the UN under the UN Charter. 7 The paltry resources accorded to human rights have been a perennial source of criticism among human rights advocates.
Historically, human rights proponents have had difficulty in convincing a critical mass of States to take the protective mandate of the UN human rights system seriously in practice, even if many have been happy to facilitate performance of its notionally softer promotional functions. But despite periodic hiccups, until recently, there had arguably been more forward than retrograde steps in developing the protective mandate. Examples include the rapid expansion of OHCHR field presences and an increased willingness by the Human Rights Council to address at least some of the most severe human rights crises in the world - including those raging in the Democratic People’s Republic of Korea, Syria and Myanmar - with the establishment of proper Commissions of Inquiry. Still, High Commissioner Zeid seemed to be signalling a crisis of faith in the human rights project in global diplomacy, with the OHCHR getting side-lined or shut out of key UN engagements at the policy and operational levels.
It should be recalled that the UN Human Rights system is composed of several, sometimes interlocking and sometimes overlapping, components. The principal organ is the Human Rights Council, established in 2006 following a reform process. The Human Rights Council is the successor body to the UN Human Rights Commission, which had been created with the founding of the UN in 1945. 8 The OHCHR serves as the Secretariat to the Council, not only in taking on its direct administration, but also in acting as the executor of all of its resolutions and decisions. The upshot is that the OHCHR effectively – and necessarily – exercises a substantial degree of de facto authority, for example, by assisting and performing much of the work of the independent experts that make up the thematic and country special procedures, and the ad hoc commissioners of inquiry. The OHCHR also administers the human rights treaties, and services the ten UN human rights treaty bodies with functions ranging from the review of State periodic reports and individual communications (complaints) procedures. It also provides support to the Universal Periodic Review process, by which the Human Rights Council examines the human rights performance of, and makes recommendations to, all 193 UN Member States. In addition, the Office carries out technical assistance and capacity-building activities, both in Geneva but particularly through its regional and country offices and human rights field advisers, amounting to a presence in more than 60 places around the globe. 9
Of course, these tasks are actually carried out by some 1300 or so professional civil servants staffing the OHCHR. By most accounts, the competency and principled commitment of OHCHR staff has increased markedly and steadily; certainly since the year the Office was first established as the successor to the UN Human Rights Centre in the mid-1990s. Operating under tremendous resource constraints, the OHCHR generally manages to undertake an impressive amount and range of activities, much of it of high quality. The nuts and bolts work in monitoring, reporting on human rights situations, conceptual and factual research, and in training and capacity-building, does not typically attract much publicity and may – perhaps fortuitously – fly under the radar.
But it is not enough to have human rights operations that are subject to the mandate and whim of political bodies. Critically, the OHCHR carries out more than a servicing function. Since its establishment in 1994 the Office has had its own organic mandate, existing outside of any directives coming from the political bodies of the Human Rights Council and the General Assembly (UNGA), or from the treaty body system. It is here, in this independent space, that the individual person of the High Commissioner, bolstered by his or her senior staff, will be in a position to make the greatest difference – whether in a diplomatic role, as a global spokesperson for human rights, or in taking on work that the Human Rights Council or UN General Assembly is unable or unwilling to do.
Zeid has continued and built upon the example of a string of High Commissioners – Mary Robinson, Sergio Vieira de Mello, Louise Arbour, Navi Pillay – who zealously embraced their role as an independent authority. Whatever shortcomings may have marked their tenures, each of these figures tackled their mandates in their own way with an independent spirit and a seriousness of purpose. The OHCHR essentially broke the mould of UN office holders as bureaucratically minded and cautious public servants. It is certainly hard to overestimate the immense difficulty of the task of taking on powerful States in relation to human rights, which involves the most sensitive questions of public life and policy.
The raison d’etre of the High Commissioner’s function and office
It is worth considering the history of the High Commissioner position as such, and why its establishment was long sought after and finally realised during the high watermark era of the early and mid-1990s. The International Commission of Jurists, with subsequent support from Amnesty International and several other human rights organisations led a drive in the 1960s to establish the position of a High Commissioner, 10 which would be empowered to fulfil many of the functions of the present High Commissioner. The logic back then was the same that militates for an independent voice today: human rights protection, more than any other field of UN and international concern, is simply too sensitive, yet too vital, to be left solely to the prevailing whims of the UN’s political bodies. But the international landscape of the 1960s was not hospitable for anything more than promotional human rights work and, it must be said, some monumental achievements on treaty standard setting. Although the NGO initiative led to a draft resolution before the then-Human Rights Commission for expressing support for the creation of the post, 11 neither the UN General Assembly nor the First World Conference of Human Rights in Tehran in 1968 were able to muster the political will to act at the time. Subsequent efforts in the 1970s also faltered.
The bureaucratically inclined Human Rights Division, serving the largely toothless Human Rights Commission, was generally ineffective during the first three decades of existence. The Human Rights Commission, paralysed by the political constraints which prevailed in the Cold War era, mandated mostly promotional activities that were voluntarily accepted by States. Anything more was typically perceived as an encroachment on State sovereignty and the internal affairs of UN Member States, in contravention of the UN Charter. Indeed, countries could not even be mentioned by name when States were “debating” human rights questions at the UN Human Rights Commission. The UN Human Rights Division, under the courageous leadership of the Director Theo van Boven in the late 1970s and early 1980s, tried to steer a more muscular approach by addressing gross human rights violations such as enforced disappearances and summary executions, including through fact-finding missions. When Van Boven came into conflict with offended States and particularly the UN Secretary-General in 1982, his contract was terminated. 12
The visionary approach of Van Boven was to come into fruition when, as noted, the Human Rights Commission began to change its methods of work with the establishment of thematic and eventual country specific Special Procedures. At the Second World Conference on Human Rights in 1993, a strong push by leading human rights organisations, and eventually a critical cross-regional mass of States, led to a commitment for the establishment of the position of High Commissioner and was included in the Vienna Declaration and Programme of Action. The diplomatic haggling around the mandate of the High Commissioner was contentious, with Western States arguing for the High Commissioner to play a fact-finding and monitoring role and the Non-Aligned Movement pushing for the promotion of sustainable development. 13
In the end, in an UN General Assembly Resolution of 20 December 1993 the High Commissioner was given a broad and open-ended, even vaguely defined, mandate.
14
The most consequential component of this mandate arguably is the following: ‘To play an active role in removing the current obstacles and in meeting the challenges to the full realization of all human rights and in preventing the continuation of human rights violations throughout the world, as reflected in the Vienna Declaration and Programme of Action.’
15
The emergence of the High Commissioner as an independent voice
There is no shortage of examples – thematic or country specific – where the High Commissioner and OHCHR officers have been able to exercise independent leadership and fill in gaps when the political channels appeared to be blocked off. One notable example is the role played by both High-Commissioners Mary Robinson (1997-2002) and Louise Arbour (2004-2008) in pushing back against the overwhelmingly security-oriented paradigm adopted and applied by many States to address real or perceived threats of terrorism in the aftermath of the attacks on the United States on 11 September 2001. Almost from the outset, when States at the UN Security Council were acting to marginalise (if not obliterate) any human rights accounting within the unilateral and multilateral responses to terrorism, Mary Robinson, acting as a lonely voice at the UN, repeatedly insisted that counterterrorism measures had to be human rights compliant. On her own initiative, she addressed the then newly established Counter Terrorism Committee (CTC) and issued human rights guidance to States on human rights and counterterrorism. 16
While States for several years resisted even the establishment of a specific special procedure mandate relating to counterterrorism and human rights, the High Commissioners continued to take up the slack on their own. In 2005, following the revelations of the secret detention and rendition programs involving torture and enforced disappearance by the US in the “war on terror”, High Commissioner Louise Arbour issued a strong statement and held a briefing denouncing the practices. When the United States UN Ambassador John Bolton caught wind of what was happening, he immediately called together media at the UN in New York to publicly denounce the High Commissioner, saying that it was ‘inappropriate and illegitimate for an international civil servant to second-guess the conduct that we’re engaged in in the war on terror’. 17 This petty characterisation and effective dismissal of the High Commissioner as “an international civil servant” is the big tell here. The entire point of the Office of the High Commissioner’s creation was that this post was not in effect meant to be a mere civil service position, but rather an authoritative independent voice. It is highly noteworthy that during that time UN Secretary-General Kofi Annan then fully backed the High Commissioner’s statement, both in authority and substance.
Another area in which inaction by States for political reasons in a critical human rights area forced the OHCHR to fill the gap was in the area of human rights and sexual orientation and gender identity. Until 2011, opposition from the Organisation of Islamic Cooperation (OIC), some African States, as well as from the Vatican, had scuttled attempts by the Human Rights Commission/Council to address LGBTI rights until 2011. While there have been more recent breakthroughs, including with a sharply divided Council narrowly adopting three fairly tepid resolutions 18 High Commissioner Navi Pillay (2008-2014), placed LGBTI rights at the very forefront of her own agenda, including by issuing public statements directed at individual countries, such as Nigeria, Uganda, and India, who were taking retrograde measures against LGBTI persons. 19 LGBTI rights more than once featured on the front pages of the OHCHR website and, more importantly, have been well-integrated into the Office’s work, including at country level. This is the kind of robust action that would be difficult without the post of an independent High Commissioner.
Bachelet assumes her post
What are the prospects for the new High Commissioner then? Michelle Bachelet, former President of Chile and head of UN Women took up the post on 1 September 2018. Though not the first Head of State to serve as High Commissioner (Mary Robinson had been President of Ireland) – this pedigree may count for something in the arena of influence,
In one of her first public addresses since taking up her position, at a well-attended event at the University of Geneva in November 2018, 20 the High Commissioner opted to present the hot button topic of human rights in the digital age. This contentious area had been attracting increased attention from the OHCHR in the previous few years, with the proliferation of human rights fractures arising from the use of digital technology by the State security sectors and commercial interests in their quests to gather personal data. The High Commissioner noted that multiple rights were engaged, including the rights to privacy and freedom of expression, and that the OHCHR would tackle the matters involved from both the State and corporate responsibility angles. Bachelet noted some of the positive human rights benefits of the new technologies, including for assistance in achieving human rights accountability and redress. She underscored, however, that the digital space was facilitating racist harassment and cyber-bullying, unlawful surveillance and attacks on human rights defenders, journalists, and lawyers. It was also allowing for the absorption and retention of highly personal data by governments and private companies alike. While this was all a fairly solid and robust human rights analysis, the High Commissioner was generally careful not to call out individual States in her remarks.
In her more general remarks, High Commissioner Bachelet pledged that she would be the “voice of the voiceless” and that she would concern herself with “third generation” rights, of which she singled out human rights and the environment, including climate change; human rights in the digital age; and development. Overall, the new High Commissioner has a formidable task ahead.
As a former Head of State who appears not to have made too many international enemies in her previous political life, she has a unique opportunity for access and influence. But the number of States that can really be considered human rights allies, or that maintain international human rights as a high international priority, has been ever-shrinking. Convincing the powerful actors of the primacy of human rights, while maintaining OHCHR’s role in calling States to account, engaging in cooperation and capacity building, and fighting for scarce resources will take a special skill in the present environment. There is a reasonable case to be made about choosing one’s battles and that longer-term effectiveness may occasionally involve more muted public responses by a High Commissioner. However, pursuing a strategy with a view to advancing a human rights objective is one thing; doing so principally to smoothen operations – and possibly a path to a second term – is quite another. The fact that a High Commissioner is dependent for reappointment upon the very States he or she will need to criticise necessarily brings strains to the capacity to act independently. Just as with judicial appointments, a better practice for the position would be to have a single, fixed term appointment of longer duration, rather than a renewable term. 21
One thing that that is probably not advisable at this juncture is the institution of any root and branch reform of the office. Certain advocates favour a major shakeup. Universal Rights Group Executive Director Marc Limon, for instance, even suggests the possibility of breaking up the OHCHR into separate entities to deal respectively with monitoring, technical cooperation and secretariat functions. 22 But this really does not seem the right time for siphoning off the energy and strained capacity of the Office into the quagmire of wholesale administrative restructuring. It is really an all-hands-on-deck moment in human rights history, and the OHCHR has the tools and seasoned maturity at this point to proceed without expending its efforts on reshuffling the deck of cards it has been dealt. While there are many new areas for the office to tackle, the working methodologies are there, as is the need to double down and maintain a rear-guard fight for the gains made in human rights that are now coming under unbearable strain.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.