Few people have greater moral authority to write about human rights issues than Vaclav Havel, the former president of the Czech Republic. In the 1970s and 80s, he led the dissident movement in then-communist Czechoslovakia, spending several years in prison under brutal conditions. Later, as president, he helped manage Eastern Europe's most successful transition to democracy and free markets. As a bonus, Havel also wrote The Power of the Powerless, perhaps the best book on how repression operates in a totalitarian state. Thus, it's worth paying attention to his recent New York Times op ed criticizing the United Nations Human Rights Council:
Governments seem to have forgotten the commitment made only three short years ago to create an organization able to protect victims and confront human rights abuses wherever they occur.
An essential precondition was better membership. The council’s precursor, the United Nations Commission on Human Rights, was folded in 2006 mainly because it had, for too long, allowed gross violators of human rights like Sudan and Zimbabwe to block action on their own abuses.
The council was supposed to be different. For the first time, countries agreed to take human rights records into account when voting for the council’s members, and those member-states that failed to, in the words of the founding resolution, “uphold the highest standards in the promotion and protection of human rights” would find themselves up for review and their seats endangered. For victims of human rights abuses and advocates for human rights worldwide, the reforms offered the hope of a credible and effective body.
Now, it seems, principle has given way to expediency. Governments have resumed trading votes for membership in various other United Nations bodies, putting political considerations ahead of human rights. The absence of competition suggests that states that care about human rights simply don’t care enough. Latin America, a region of flourishing democracies, has allowed Cuba to bid to renew its membership. Asian countries have unconditionally endorsed the five candidates running for their region’s five seats — among them, China and Saudi Arabia.
Havel is absolutely right to criticize the UN for electing egregious human rights abusers to the Council. Not only does the Council fail to protect human rights, it actually promotes repression by passing resolutions such as the recent one calling for censorship of speech that "defames" religion.
The difficulty here goes deeper than the moral failings of individual states that "don't care enough," highlighted by Havel. The fundamental problem with the Council - and the entire UN system - is structural. Most of the UN's member states are either oppressive dictatorships themselves or dubious quasi-democracies - states like Venezuela and Russia that retain some democratic processes but also routinely resort to repression against political opponents. Such governments have an obvious interest in blocking the creation of a UN body that might actually curb their abuses - especially if those abuses help their governments stay in power by crushing opposition movements. Havel rightly criticizes democratic states for not doing more to oppose the election of authoritarian human rights abusers to the Council. But there are limits to how much democracies can do to influence UNHRC elections so long as the authoritarians and pseudo-democrats continue to outnumber them. As long as the UN's membership remains as it is, expecting the UN to create a human rights body that actually protects human rights is much like expecting a committee of foxes to guard a henhouse against themselves.
This structural flaw of the UN Human Rights Council is just one facet of the more general problem of the influence of repressive nondemocratic regimes on international human rights law. As John McGinnis and I discuss in this forthcoming article, that influence is broad and pervasive. Even the Universal Declaration of Human Rights, generally considered the most important international human rights treaty, contains repression-justifying provisions inserted at the behest of totalitarian states such as the Soviet Union.
McGinnis and I argue that this structural shortcoming of international human rights law should lead us to be wary of allowing that law to override the domestic law of liberal democracies. We must also be realistic about the very low likelihood that international human rights law will do much to curb repression in authoritarian states anytime soon.
