State interests and the creation and functioning of the United Nations Human Rights Council.

• Author: Eric, Cox

1. INTRODUCTION 87 II. EXPLAINING STATE ENGAGEMENT WITH HUMAN RIGHTS INSTITUTIONS 89 III. THE CREATION OF THE HRC 97 IV. HUMAN RIGHTS COUNCIL OUTCOMES 106 1. MEMBERSHIP 107 2. WORK PRODUCT 110 3. UNIVERSAL PERIODIC REVIEW 114 V. CONCLUSION 117 I. Introduction

   In its final years, the United Nations Commission on Human Rights (CHR) came under increasingly intense criticism from multiple actors. These criticisms were rooted in diverse perspectives on the appropriate role of inter-governmental human rights institutions. Many Western states and nongovernmental organizations, as well as some bodies within the UN system, were dissatisfied for a number of reasons with the capacity of the CHR to aggressively promote state compliance with human rights norms. First, the CHR's membership commonly included states with poor human rights records; the procedure for elections even made it possible for such states to assume leadership positions. As noted by the UN's High-level Panel on Threats, Challenges and Change: "standard-setting to reinforce human rights cannot be performed by States that lack a demonstrated commitment to their promotion and protection. We are concerned that in recent years States have sought membership ... not to strengthen human rights but to protect themselves against criticism. ... " (1) Second, the CHR was greatly criticized for a perceived overall inefficiency, exemplified by the low number of sessions held annually, and its inability to call emergency sessions. (2)

   On the other hand, the criticisms of many non-Western states were based in perceptions that the work of the CHR was motivated by the political interests of the most powerful. These states were frequently critical of what they saw as overt attempts to politicize the work of the body, and to selectively target states with which powerful UN member states had a disagreement. In particular, many developing states believed that the use of country-specific resolutions served to undermine the standard-setting function of the CHR. (3)

   It was out of this context--one of dissatisfaction that was nearly unanimous, yet driven by several fundamentally different perspectives--that a strained compromise was forged, and a new human rights institution created. On 15 March 2006, the UN General Assembly resolved to abolish the CHR, and replace it with a new Human Rights Council (HRC). (4) The 170 states that voted in favour were opposed by a bloc of four members led by the United States. (5) There were three abstentions, and 14 states were nonvoting. (6) The resolution was the result of months of negotiations among the various states that had agreed on little more than the need to reform UN human rights protection.

   The structure and behaviour of the HRC is best understood in light of the diverse preferences that informed its creation. Like all human rights regimes, the HRC is an institutional compromise, a product of competition between the preferences of several blocs of states. For the purposes of parsimony, this article makes generalizations about the preferences and characteristics of groups of states; it should be recognized there is no uniformity within a particular bloc with respect to domestic political institutions, norms regarding human rights practice, or UN negotiating positions.

   The argument in this article proceeds in three steps. The second section will rely on recent work in the liberal and constructivist literature to build an approach in which state preferences for the structure of human rights regimes are understood as a function of their perceived domestic and international interests.

   In the third section, this approach will be used to explain the preferences exhibited by each bloc during the reform process, with respect to their support for the abolition of the CHR, and their specific preferences for the structure of the HRC. Many Western states, including the United States and the members of the Western Europe and Others Group (WEOG), sought a more interventionist organization with limited membership that would be able to issue resolutions regarding specific human rights violations. Other states, organized primarily in the G-77, thought that the HRC's ability to criticize individual states should be limited, emphasizing instead the development of common standards and the pursuit of a "cooperative" approach to human rights. It will be argued that the resulting institutional design--and particularly the decision to base representation on region without formal standards of participation--more closely reflects the preferences of those in the G-77. (7)

   By comparing the first three and a half years of work of the HRC with the last three years of the CHR, the fourth section will explain how the HRC's behavioural outcomes reflect this underlying structural reality. This will be done by comparing the human rights records of states elected to the two bodies, the procedures for member elections, and the use of country-specific resolutions. The creation and functioning of the Universal Periodic Review (UPR) will also be analyzed.

   The article concludes that the voting power of developing states allowed them to significantly shape the final structure of the HRC. Although the HRC is able to pass country-specific resolutions--a major goal of the United States and Western Europe--its institutional structure permits non-democratic states with poor human rights records to affect significantly the outcomes in the HRC. This influence is possible because the final size of the institution, 47 states, is not significantly smaller than the 53 that comprised the CHR, and the seats continue to be distributed regionally with no formal human rights standards serving to bar states with poor human rights records from participating. Given that the distribution of state type has changed very little in the transition from the CHR to the HRC, one should not expect the HRC to function differently than did the CHR, as both are fundamentally political institutions that reflect the will of their membership. The article's conclusion also suggests further avenues of research based on state type and engagement with the UPR.

2. Explaining State Engagement with Human Rights Institutions

   While a consensus did emerge that the CHR should be replaced, the type of institution that would replace it was subject to much debate. International Relations scholars have often had difficulty in determining the factors that shape state preferences toward institutions and how institutional design can shape outcomes. The following literature review focuses on four theoretical perspectives--realism neoliberalism, constructivism, and a domestic politics approach--to develop an explanation of why different states approached the negotiations regarding the formation of the HRC in the manner they did.

   Realist theories view the formation of institutions as reflections of great power interests: institutions are viable so long as they correspond to these interests, but will fall by the wayside as the interests of the member states shift over time. Institutions themselves will rarely have a meaningful effect on state behaviour, and the institutions that do come into existence must be careful not to alter the existing distribution of power globally. (8) Yet these realist arguments fail to account for the formation of institutions that occurs without the input of major powers. For example, both the International Criminal Court (ICC) and the HRC were created despite the objection of the world's most powerful country, the United States. They also fail to explain the ability of many institutions to endure even after the alignment of interests underlying their creation has shifted.

   In response to these perceived failures of realist theory, neoliberal scholars developed various theories for the formation and endurance of regimes that relied on the same basic assumptions as realist scholars. Neoliberals largely agreed with realists that the state system was anarchic and that cooperation in the international system was difficult; where the two differ was in their view of the possibilities of cooperation. Whereas neorealists believe cooperation is unlikely outside of temporary military alliances, neoliberals believe that greater cooperation is possible. Neoliberal theory emphasizes the role of institutions in helping to overcome the problem of distrust between states: by providing a mechanism to lengthen the time frame of inter-state relationships (according to neoliberal insights, a longer "shadow of the future" makes defection from an agreement less likely), a way for states to monitor and observe the actions of states with which they had agreements, and, in some cases, a formal mechanism to punish states that violated agreements. (9) Forming the institutions themselves was the initial challenge, and often depended on the presence of a hegemon willing to bear the cost of the initial regime formation. Once a regime formed and proved its usefulness in facilitating cooperation, it could take on a life of its own and no longer be dependent on the hegemon. (10)

   The neoliberal account has two major failings in explaining state preferences toward the HRC. First, neoliberals, like neorealists, largely believe that state preferences are uniform, regardless of characteristics internal to the state, such as the nature of the political system. The empirical evidence presented below suggests that such preferences are not. (11) Second, neoliberalism normally depends on the role of the hegemon in shaping new institutions. But in the case of the HRC, the primary hegemon, the United States, had little effect on the final institution, and the next most powerful block of states, the WEOG, was unable to create the institution as it desired. (12)

   Both of these theoretical approaches failed to provide a satisfying endogenous account of state preferences. In an effort to fill this gap, the developing constructivist...