As the US leaves the UN Human Rights Council, it may leave more damage in its wake



File 20180620 126553 kp36n2.jpg?ixlib=rb 1.1
Nikki Haley, the United States’ Permanent Representative to the United Nations, has announced the US will withdraw from the UN Human Rights Council.
AAP/EPA/Justin Lane

Sarah Joseph, Monash University

Editor’s note: This is a longer read


US Ambassador to the United Nations Nikki Haley and US Secretary of State Mike Pompeo have announced the US was withdrawing from the UN Human Rights Council (“HRC”).

In doing so, they claimed the council was a roadblock to genuine global human rights protection. This move by the Trump administration has been anticipated for some time. In a sense, the elephant has left the room. But in doing so, the elephant has belled the cat on a number of serious issues regarding the HRC.

Is the United States’ decision sound in terms of international human rights protection? Is it one that Australia, an HRC member from 2018-2020, should follow?

What is the Human Rights Council?

The UN Human Rights Council was established in 2006 to replace the UN Commission on Human Rights, which ran from 1947 to 2006. By the time of its demise, the commission was criticised from all sides for being overly politicised.

The HRC’s 47 seats are divided between the five official UN regions in the following way: Africa (13); Asia (13); Latin America and the Caribbean (8); Western Europe and Other (7); Eastern Europe (6). The US (and Australia) is in the Western Europe and Other Group, known as WEOG.

One-third of the council is elected each year by the UN General Assembly, and members serve three-year terms. No member may serve more than two consecutive terms. A member can also be suspended from the council in a vote of two-thirds of the UN General Assembly: Libya was suspended in 2011 after Muammar Gaddafi’s crackdown on Arab Spring protesters and armed dissidents. No other member has been suspended.

The HRC meets three times a year for a total of around ten weeks. Its 38th session has just begun. It also meets for one-day special sessions at the initiative of one-third of its members. It has so far held 28 special sessions.

The HRC’s functions include the drafting and adoption of new human rights standards, as arose in its first year with the adoption of new treaties dealing with the rights of people with a disability and the scourge of enforced disappearances, as well as the adoption of the Declaration on the Rights of Indigenous Peoples in 2007.

The HRC also authorises independent investigations into particular human rights issues, either thematic (dealing with a human rights issue such as torture or LGBTI rights) or, more controversially, focused on a particular state. At the time of writing, there are 46 thematic mandates and 12 country mandates for these “special rapporteurs”.

It has one major new function compared to its predecessor, the Universal Periodic Review (“UPR”), whereby the human rights record of every UN member is reviewed by the HRC (as well as all other “observer” nations) every five years.

The US’ grievances against the HRC arise with regard to the human rights records of its members, and its politicised character. Its key red line concern seems to be the HRC’s “unconscionable” and “chronic bias” against Israel (to quote from this morning’s press conference). These issues are examined in turn below.

HRC membership

Membership criteria as they stand are very soft: candidates commit to the highest standards of human rights, and states should take into account a nominee’s human rights record when voting. Both of these rules are basically unenforceable.

Human rights criteria were mooted as prerequisites for membership when the HRC was created. However, the UN’s nearly 200 members could not agree on substantive criteria, as they have very different views on human rights. The US, for example, wanted only “democratic nations” to be eligible. Such a criterion would have led to debates over the meaning of “democracy”, and would seem to prioritise civil and political rights over economic, social and cultural ones. A focus on the implementation of economic and social rights might have led to the exclusion from eligibility of the US itself.

In any case, the “measurement” and respective ranking of human rights records across states is contentious. While comparisons between two states may lead to easy conclusions over which one is better or worse, it is a fraught exercise across the entirety of the UN membership.

Procedural criteria, such as a nation’s record on ratification of human rights treaties, would be more objective. However, such criteria might have led to the exclusion of the two most powerful countries in the world – the US and China, which have both failed to ratify crucial treaties. Realpolitik indicates that such an outcome is very unlikely.

In the press conference, Haley and Pompeo decried the presence of human rights abusers on the council, including China, Cuba, Venezuela and the Democratic Republic of the Congo. Consternation has also commonly been expressed over the common presence of Saudi Arabia and Russia on the HRC. Certainly, none of those states is remotely close to upholding the highest standards of human rights. Haley and Pompeo went further, claiming that these states manipulate the HRC to shield abusers and target blameless states in its resolutions.

So how bad is the HRC membership? Freedom House is a non-government organisation (NGO) that rates states as “free”, “partly free”, or “not free”, according to certain civil and political rights criteria, such as press freedom. While Freedom House’s methodology is assailable, I will use its rankings in assessing the current HRC, as the US itself historically uses them in making certain policy choices.

According to its 2018 rankings, the HRC of 2018 contains 21 “free” states, 12 “partly free”, and 14 “non-free”.

2018 is in fact one of the worst years in terms of the numbers of non-free HRC members. Nevertheless, free states always outnumber unfree states on the HRC, and can easily pass or block any resolution with the cooperation of just a few partly free states, if they vote together.

Any problem with “bad” resolutions on the HRC arises not from a preponderance of bad states, but from bloc voting within regions, like-minded groups and alliances.

The phenomenon of clean slates

Nevertheless, one can still fairly criticise the HRC for containing 14 non-free states. How do such states get elected?

A major problem for HRC elections is the issue of “clean slates”, whereby the number of candidates presented by a UN region correlates exactly to the number of seats it is scheduled to have elected at any particular time. For example, a region might put forward only two candidates for two seats. In such circumstances, the various candidates’ election seems to be a fait accompli. This phenomenon of clean slates was what Pompeo was referring to when he said that some states were elected by a rigged, collusive process.

Yet clean slates are a problem with all of the UN regions. The US itself was initially elected to the HRC on a clean slate in 2009. Australia was elected to the HRC on a WEOG clean slate in 2017, due to France’s belated withdrawal of its candidature.

Genuine elections do occur when open slates are presented by regions. This is how Russia was rejected in 2016, an unprecedented and humiliating blow that probably led to Russia’s failure to even stand for election in 2017. Other serious human rights abusers, such as Azerbaijan, Sri Lanka and Belarus, have failed to gain seats in similar circumstances.

Although states are elected on a regional basis, each member must still attain the majority of votes in the general assembly in order to be elected. There remains a possibility that an unacceptable candidate will simply not reach that threshold, even in the case of a clean slate.

That possibility has in the past led to the late replacement of controversial candidates, such as Syria’s replacement by Kuwait in 2011. This author eagerly awaits the day when the General Assembly finally flexes its muscle by refusing to elect an entire clean slate, thus depriving a region of a seat for a year. Such an outcome, in the absence of a relevant reform, is one way to dissuade future clean slates.

Finally, while states – particularly WEOG countries – might rail against the awful records of other members, those sentiments might not be reflected in their actual voting. After all, voting is by secret ballot. For example, given that Saudi Arabia is a key US geopolitical ally, it seems likely that the US (and even Australia) has voted for it on occasion. Certainly, the UK seems to have done so.

The US is correct that membership criteria should be revisited. Certain obstacles could be put in the way of the worst abusers, such as compulsory open slates, public voting (which might help prevent UK votes for Saudi Arabia), and a requirement that an eligible state must allow visits by all special rapporteurs.

Politicisation of the HRC

As the HRC’s members are representatives of their governments, the HRC is a highly politicised body, like its predecessor. State governments are political constructs, so any institution made up of government representatives is inevitably political too.

Unfortunately, states will generally vote in favour of their national interests rather than human rights interests if the two should clash. Pompeo inadvertently admitted that this morning, when he praised Haley by saying that she always put “American interests first”.

Politicisation inevitably leads to the manifestation of political biases. The most notorious HRC bias concerns Israel. It seems that the US’ biggest complaint over the HRC, and the “red line” that has led to its withdrawal, is the HRC’s treatment of Israel.

Israel and the HRC

The HRC is biased against Israel. It has aimed a disproportionate number of resolutions against that country. The HRC’s regular agenda of ten items contains only one item that focuses on a particular state, that state being Israel.

Its special rapporteur mandate stands until the occupation is over, so its renewal is automatic rather than the subject of periodic debate, as is the case with other mandates. The mandate-holder investigates its actions rather than those of the Palestinian authorities, whose abuses are largely ignored.

Israel has been the subject of more special sessions than any other state (more than a quarter of the 28 sessions). Having said that, it was the subject of the first three special sessions in 2006, and four of the first six, so the “hit rate” of 4 out of 22 is less stark since then.

Why is the HRC preoccupied with Israel? For a start, Israel has committed serious human rights abuses that are worthy of the HRC’s condemnation. It is absurd for Pompeo to have implicitly suggested that Israel has “committed no offence”. Any HRC bias does not mean that the substance of its criticisms is wrong. The recent killings of Palestinian protesters, targeted killings, illegal settlements, forced evictions, war crimes, the Gaza blockade and, most fundamentally, an ongoing occupation of Palestine that has lasted for more than 50 years, will cause critics to proliferate.




Read more:
Israel is prioritising PR over peace-building in the Middle East


Nevertheless, that does not explain the HRC’s disproportionate attention to one country, given the scale of human rights abuses by other states that receive far less attention.

Ardent supporters of Israel often contend that the bias is driven by anti-Semitism. While such a motivation cannot be dismissed, there are other reasons that seem likely to be driving this phenomenon. The equation of “anti-Israel” with “anti-Semitic” is simplistic.

Israel has many enemies among UN states. Some have never accepted Israel’s right to exist, believing that it was established illegitimately on Arab (Palestinian) land. Indeed, the Organisation of Islamic Cooperation was set up in 1969 to unite Muslim states after the 1967 war in which Israel seized the occupied territories, so opposition to Israel has been an article of faith since its inception. The OIC routinely brings as much diplomatic pressure to bear on Israel as possible. As OIC states straddle the two biggest UN groupings, Africa and Asia, they can rely on significant bloc solidarity for support in their initiatives.

The racial element, whereby the Jewish State of Israel illegally occupies lands populated by Arabs in the occupied territories, attracts the ire of developing states, which have historical grievances regarding racial oppression. Yet other instances of racial tension – such as the oppression of the Tibetans, the Kurds, the West Papuans, the Tamils or the Chechens – fail to attract the same HRC scrutiny.

One difference is that Israel’s occupation of the Palestinian Territories is not recognised as legitimate by any other state, unlike for example China’s sovereignty over Tibet or Indonesia’s sovereignty over West Papua.

Indeed, increasing numbers of states have diplomatically recognised the occupied territories as the State of Palestine, and the UN General Assembly voted in 2012 to recognise Palestine as a non-member state.

Occupation also allows states to feel safe in attacking Israel without being too hypocritical. While human rights abuses are sadly common, the status of “occupier” is rare. Indeed, Israel is sometimes seen as a remnant of colonialism, and its actions certainly breach the right of self-determination enshrined in the UN Charter.

However, Israel is not the only occupier. Morocco has long annexed the [Western Sahara], yet the global silence on that situation is deafening in comparison.

Israel is also seen as a surrogate for the West, particularly the US. Given that Israel is almost always defended within the UN by the US, and is often defended by much of WEOG, the question of “Israel-bashing” has become part of a greater North/South divide in the UN. Anti-American states such as Cuba, Venezuela, Ecuador and Russia see Israel as a US surrogate in the Middle East, and exploit the issue accordingly.

Bias against Israel is matched by biased displays of support for Israel by its allies, such as the US and Australia. For example, the US instinctively presumed that the recent border killings were justified. Past bombings of Gaza (in 2009 and 2012) have been blithely dismissed by Australia as an exercise of Israel’s right to self-defence. But a legitimate case of self-defence can still result in an illegal use of excessive, indiscriminate or unnecessary force.

Regardless of its causes, the HRC’s perceived bias against Israel is counterproductive. It provides Israel with a ready-made argument to reject even legitimate condemnation, thus providing cover for human rights abuses. Indeed, claims of bias (within and outside the UN) have become a dominant part of the Middle East narrative on both sides, detracting from a focus on the actions of the actual protagonists. It has facilitated Israel’s progressive disillusionment with and disengagement from the UN, and now, the disengagement of the US. It reduces the HRC’s credibility and opens it up to charges of hypocrisy. None of these outcomes is useful for those who sincerely wish for improvements in human rights for all in Israel and the Palestinian occupied territories.

Finally, the biggest problem with the focus on Israel is the corresponding lack of focus on other serious human rights situations. While it is impossible to demand or expect that a political body, or even an apolitical one, should achieve perfect balance in its human rights focuses, it is fair to expect that such focuses not be way out of balance.

The US and human rights

Haley and Pompeo reassured us that the US will continue to play a leadership role in human rights, despite its withdrawal from the HRC. And certainly, the US’ role on the HRC was in many ways positive. For example, it took the lead in addressing impunity in Sri Lanka. The WEOG group suffers from some dysfunctionality on the part of EU states, which generally seek a common position. Strong non-EU voices are important in this regard.

Yet the US is as political as other players on the HRC. Just as some states instinctively oppose Israel, the US instinctively supports it. Neither position is principled. The US has also protected other allies, such as Bahrain.

Outside the HRC, US President Donald Trump is not a credible leader on human rights. He seems to have an affinity with leaders with horrible records, such as the Philippines’ Rodrigo Duterte. Most recently, he responded to comments about North Korea’s human rights record, which is possibly the worst in the world, by praising the “talented” Kim Jong-un.

And of course, the US has long had its own serious human rights problems, which are too numerous to mention, but which include torture and the highest proportion of incarceration in the world. Its recent decision to separate migrant children from their parents and intern them reflects its status as the only country in the world that has failed to ratify the Convention on the Rights of the Child.

Furthermore, it is nonsense for Pompeo to suggest that the HRC had sought to infringe on US sovereignty. This betrays a serious misunderstanding of the concept of sovereignty, indicating that it dictates immunity from criticism. It does not.

Is the council salvageable?

The US is correct to note there are major deficiencies in the current HRC. Is its response therefore the correct one? If so, that would seem to indicate that Australia should also quit the HRC. It is very unlikely that Australia will do so.

The HRC is the peak global intergovernmental human rights body, which may represent the world of today, warts and all. The battle for universal human rights observance will not be won by adopting an “us and them” mentality, which excludes significant numbers of countries in the world from “the human rights club”. Such a solution is more likely to lead to balkanised human rights discussions, and possible competing institutions inside and outside the UN.




Read more:
New Home Affairs department should prompt review of Australia’s human rights performance


The HRC must remain a forum where non-like-minded states, and civil society, can talk to each other, and occasionally cross divides to make important human rights decisions.

Furthermore, the HRC is meant to be a political body. Other parts of the UN human rights machinery are made up of independent human rights experts, and accordingly take a more impartial approach than the HRC. While their human rights findings are more credible, it also seems that states generally take their findings less seriously.

States tend to care more about what their peers think than what human rights experts might think. Hence, human rights would suffer in the absence of a relevant intergovernmental global body.

Despite its flaws, the HRC does make decisions that benefit human rights, even in the face of political lobbying by members with scurrilous motives. For example, a special rapporteur was appointed to investigate Iran (after the application of US pressure), and it remains in place, despite that influential country’s forceful efforts to dismantle the mandate. A special rapporteur on LGBTI rights was appointed in 2016, despite fierce opposition from the OIC and homophobic states, due to an alliance of developed and developing states, and civil society.

The HRC will continue to be an imperfect institution for as long as the UN is made up of states with imperfect human rights records. However, the council still can and must be improved.

The ConversationBut the worst way to achieve that goal is by just walking away.

Sarah Joseph, Professor, Director, Castan Centre for Human Rights Law, Monash University

This article was originally published on The Conversation. Read the original article.

Advertisements

Here’s what happens to aid projects when the money dries up and the spotlight fades



File 20180219 75984 1initit.jpg?ixlib=rb 1.1
Aid projects in Iraq had more money than ideas.
Denis Dragovic, Author provided

Denis Dragovic, University of Melbourne

As a former aid worker, I often wondered about what happened to the projects I worked on years later. Did the anti-corruption commission we founded itself become corrupt? Having given grants to women to start businesses, did the men allow them to work? And what about the community trained in maintaining the water pumps – did they see through their part of the bargain?

Evaluations, lauded by donors, report on a moment of time when the gloss is still shining. We don’t care, or possibly dare, to look back five or ten years later to see what happened.

I did. I wanted to know what happened to the projects and the people from a decade of aid work spanning East Timor, Iraq and South Sudan. I bought airline tickets, wrangled visas, and set off on a journey that changed my view of the aid industry.

Government problems hobble South Sudan

These trips weren’t about measuring the impact of certain projects, as too much time had passed. They were more about understanding. My colleagues and I had started along a journey without knowing how the story would end.




Read more:
Development aid works over time, but must adapt to 21st-century needs


My first return visit was to South Sudan. It came nearly a decade after I had worked supporting a refugee camp in Wau, which was established in the late 1990s following a civil war and famine.

The camp had established itself organically, so there was a spaghetti logic to its layout. By the time I had arrived in the early 2000s, international attention had moved on, so there were limited resources available. My job was to wind down and close out activities.

A decade later, the camp had become a small town struggling to survive. Water pumps and wash points were mostly broken. We’d trained people on how to maintain them, but the government that had agreed to provide the spare parts appeared to have had a change of heart.

It took some time before I learned that the state officials refused to give the former refugees property rights. As a result, families didn’t invest in their homes for fear of making them even more attractive for appropriation.

State officials in South Sudan refused to give former refugees property rights.
Denis Dragovic, Author provided

Did aid make a difference in Iraq?

After South Sudan I returned to Iraq, travelling first to the north and then to Najaf, the centre of religious learning and home to Iraq’s powerful Shi’a Ayatollahs.

Iraq didn’t face the same shortage of resources as South Sudan: quite the opposite. There was more money than ideas.

I first arrived in Iraq a few months after the invasion in 2003; I moved straight to my posting in the conservative cities of Najaf and Karbala. We rehabilitated water treatment plants and parts of the regional hospital, provided psychosocial support to children, helped the disabled, and distributed humanitarian aid.

We were a one-stop shop for assistance, competing with the government and local religious charities.

Returning several years later and speaking with the governor, an ayatollah, and former staff who had become politicians and community leaders, the consensus was that had we not arrived, it would have only been a matter of months – or at most a year – before the same work would have been done by the authorities or the local community.

The same aid work in northern Iraq could have been undertaken by local authorities.
Denis Dragovic, Author provided

East Timor didn’t lack money – just sense

From the deserts of Iraq, my final stop was the lush tropics of East Timor. This was where I started my aid career in 2000 as a shelter engineer.

A decade separated the shelter distribution and my return visit. My memories had faded, but luckily I had stayed in touch with a former colleague who undertook the journey with me.

We were on the trail of houses built from a shelter distribution program. Surprisingly, many were still standing, with extensions and improvements tacked on. The pressing issue then – and what was evident during my return visit – wasn’t a lack of money, but how it was spent.

The then sovereign authority, the United Nations, had treated its responsibility as a factory production line churning out widgets, rather than as community development. It implemented off-the-shelf projects in an accelerated timeframe.

Plans called for consultation and engagement, but the reality became a race toward inputs and outputs. The culture of the international bureaucracy had won over the culture of the people.

The culture of the international bureaucracy won out over the culture of the East Timorese people.
Denis Dragovic, Author provided

The lessons learned

Through a mix of hitching rides on military convoys, slipping into Iraq on a pilgrim’s visa, or relying upon the goodwill of former colleagues, I managed to achieve what I had set out to – meet with beneficiaries, former staff and local leaders to hear what they thought about our work.

Each person had a story to tell; each place had a different lesson. But what was true in every location was the importance of the people.

The “stuff” we gave, the “things” we built: they became worn and broken. But the people we worked with, invested in and empowered continued to develop and grow. They took the skills and experience with them to new lives as business, community and political leaders who continued to transform their countries long after we had departed.

It’s a salient lesson to remember: the one and only truly sustainable activity we do is help people help themselves.


The ConversationDenis Dragovic’s new book No Dancing, No Dancing: Inside the Global Humanitarian Crisis is published by Odyssey Books.

Denis Dragovic, Honorary Senior Fellow, University of Melbourne

This article was originally published on The Conversation. Read the original article.

Australia’s record on racial equality under the microscope



File 20171128 2066 14rlas2.jpg?ixlib=rb 1.1
The Committee on the Elimination of Racial Discrimination has begun its two-day review of Australia’s record on racial equality.
Shutterstock

Fiona McGaughey, University of Western Australia

Overnight in Geneva, the United Nations Committee on the Elimination of Racial Discrimination (CERD) began its two-day review of Australia, asking government representatives to explain their progress in promoting racial equality and tackling racism.

The CERD notified the government in advance of the key focus areas of the review. Not surprisingly, these include the situation of Indigenous people, and of migrants, asylum seekers and refugees; racist hate speech and hate crimes; and human rights and anti-racism protections in Australia’s laws and policies.

What is the CERD?

Australia has ratified seven of the nine core human rights treaties. Each treaty has its own treaty monitoring body, like the CERD, comprised of independent experts who are nominated by governments but do not represent them.

These bodies monitor states’ compliance with their international law obligations as set out in the treaty, primarily through periodic reporting.

Most recently, Australia received criticism from another one of these bodies, the Human Rights Committee, which highlighted shortcomings in relation to Indigenous rights, treatment of asylum seekers and refugees, and the lack of a national bill of rights.


Read more: UN slams Australia’s human rights record


It is often overlooked that of these nine core treaties, the International Convention on the Elimination of Racial Discrimination (ICERD), was actually adopted before any of the others. The CERD became operational in 1970, and ICERD is now the third most commonly ratified UN human rights treaty, with 177 states signed up.

Australia and CERD – the background

The CERD last reviewed Australia’s record in 2010.

The recommendations made in 2010 contained 21 specific actions for the government. These included the recognition of Aboriginal and Torres Strait Islanders as First Nations Peoples, supporting the proper performance of the Australian Human Rights Commission, appointing a Race Discrimination Commissioner, and addressing Indigenous contact with the criminal justice system.

Like many other UN human rights bodies, in 2010 the CERD also recommended that Australia review its mandatory detention regime of asylum seekers, with a view to finding an alternative to detention and ensuring that the detention of asylum seekers is always a measure of last resort.

Another recommendation in 2010 was that Australia criminalise the dissemination of racist ideas and incitement to racial hatred or discrimination.

In this regard, Australia has formally limited its obligations by having a reservation to the relevant article of the treaty. Reservations allow states to commit to treaty obligations, but with caveats.

Despite criticisms of Section 18C of the Racial Discrimination Act and suggestions that the federal parliament may even have exceeded its external affairs power by going further than was required by the ICERD treaty, the reality is that Australia lacks comprehensive criminal sanctions against incitement to racial hatred. Many other countries have such criminal laws in place.

On Tuesday in Geneva, the government will continue to seek to convince the CERD that it has made progress on these recommendations. It could refer to the appointment of a Race Discrimination Commissioner at the Human Rights Commission, for example Where it has not made good progress, it will be expected to provide explanations.

The last two reviews of Australia by the CERD in 2010 and 2005 were carried out in typical diplomatic mode – the review is called a “constructive dialogue”.

However, Australia’s review by the CERD in 2000 is famous in human rights circles, as there were unusually heated exchanges between Philip Ruddock and one of the committee members.


Read more: With a seat on the UN Human Rights Council, Australia must fix its record on Indigenous rights


The events were captured by Spencer Zifcak in his book, Mr Ruddock goes to Geneva. Subsequently, the then foreign minister, Alexander Downer, said:

… if a United Nations committee wants to play domestic politics here in Australia, then it will end up with a bloody nose.

Australia has more recently also rejected the authority of UN human rights bodies, but conversely has just been appointed to the UN Human Rights Council and will take up its seat in 2018.

The Human Rights Committee, one of the aforementioned seven treaty bodies, is sometimes confused with the Human Rights Council – a completely separate UN human rights body. The Human Rights Council is the key UN human rights body, a more politicised entity.

Who actually holds Australia to account?

Being subject to reviews by international human rights bodies is important for the upholding of human rights in Australia – we are currently the only sestern democracy lacking a statutory or constitutional bill of rights.

Also, unlike many other states, we are not part of a regional human rights framework.

Several interested parties made submissions to the CERD and delegates are in Geneva for informal briefings with the committee members. They will inform the committee of the key concerns they have about the government’s progress. NGOs have already made the committee aware of the situation on Manus Island.

My research has found that such submissions can be quite influential and help shape the recommendations eventually delivered by the committee. However, mechanisms to ensure the government implements the recommendations are lacking.

Therefore, those in civil society with an interest in racial equality, NGOs, academics, trade unions and others should be aware of the recommendations and encourage the government to progress their implementation.

What happens next?

The CERD will finish its review of Australia today, which should be available to view via webcast.

The ConversationIn a few weeks, the committee will hand down its concluding observations, containing recommendations for the Australian government.

Fiona McGaughey, Lecturer, Law School, University of Western Australia

This article was originally published on The Conversation. Read the original article.

UN slams Australia’s human rights record



File 20171109 13299 1ve63r1.jpg?ixlib=rb 1.1
The UN committee urged Australia to end offshore processing and bring the men on Manus to Australia or another safe country.
AAP

Anna Cody, UNSW and Maria Nawaz, UNSW

Last night, the United Nations Human Rights Committee released its recommendations from its review of Australia’s compliance with a key human rights treaty, the International Covenant on Civil and Political Rights.

The committee harshly criticised Australia for failures in key areas. These included the treatment of refugees, Indigenous rights and inadequate protection of human rights, including the lack of a national human rights act.

What is the UN Human Rights Committee?

This is the treaty body for the International Covenant on Civil and Political Rights. The committee is made up of 18 independent human rights experts. Its key functions are to:

  • monitor and review state parties’ compliance with the treaty; and

  • decide complaints made by individuals against state parties.

What did the committee say about Australia’s human rights record?

The committee noted areas in which Australia’s record had improved. These included the establishment of the Parliamentary Joint Committee on Human Rights and the introduction of protections against discrimination on the grounds of sexual orientation, gender identity and intersex status.


Read more: With a seat on the UN Human Rights Council, Australia must fix its record on Indigenous rights


The committee also commended Australia for its commitment to ratifying the Optional Protocol on the Convention against Torture.

However, concerns far outweighed improvements in human rights.

The rights of refugees

The committee widely criticised Australia’s refugee policy for breaching Australia’s human rights obligations under the convention.

It raised concerns about refoulement (the forcible return of refugees to their home countries), mandatory detention, Operation Sovereign Borders and offshore detention. This includes the recent closure of the Manus Island Regional Processing Centre.

The committee urged Australia to end offshore processing and bring the men on Manus to Australia or another safe country. It emphasised the need for detention to be used to assess individual risk, not as a general deterrent. It also found that Australia has “effective control” over the detention centres on Nauru and Manus Island.

The rights of Indigenous people

The committee expressed concern about disproportionately high (27%) Indigenous incarceration rates. It recommended that measures such as mandatory sentencing and imprisonment for not paying fines be repealed.

The committee further recommended that Australia provide adequate funding to the National Congress of Australia’s First Peoples, and consider constitutional change to reflect the special status and fully protect the equal rights of Aboriginal and Torres Strait Islander peoples.

As it has done before, the committee urged Australia to establish a national reparations scheme for members of the Stolen Generation.

The rights of lesbian, gay, bisexual, transgender and intersex people

The committee roundly criticised unnecessary medical interventions on intersex people, particularly intersex infants and children. It recommended that the requirement for Family Court authorisation for second-stage hormone treatment for young people diagnosed with gender dysphoria be removed.

Barriers to gender and sex recognition on documents were also criticised.

The committee took a strong stance on the same-sex marriage postal survey. It stated that:

resort[ing] to public opinion polls to facilitate upholding rights under the Covenant in general, and equality and non-discrimination of minority groups in particular, is not an acceptable decision-making method.

The committee recommended that the Marriage Act be amended, regardless of the outcome of the postal survey.

The rights of women

The committee noted the endemic nature of violence against women, and the disproportionate impact this has on Indigenous women and women with a disability. It recommended that Australia increase its efforts to prevent all forms of violence against women.


Read more: New Home Affairs department should prompt review of Australia’s human rights performance


The committee again raised concerns about the involuntary sterilisation of women and girls with intellectual and cognitive disability, and recommended that Australia abolish this practice.

The human rights framework

As in previous reviews, the committee recommended that Australia introduce a comprehensive national human rights act to give effect to the human rights protections in the covenant.

It also recommended that federal anti-discrimination laws be strengthened to ensure effective protection against all forms of discrimination. It specifically noted the lack of federal protection against discrimination on the basis of religion.

The committee criticised previous attacks by politicians on the Australian Human Rights Commission and recommended that Australia respect the independence of that body.

Where to from here?

The release of these recommendations comes at a crucial time for Australia, which last month won a seat on the UN Human Rights Council.

The council is responsible for strengthening the promotion and protection of human rights, and for addressing human rights violations around the world.

Council members must demonstrate their willingness to improve their domestic human rights situation. To claim legitimacy in human rights on the world stage, Australia needs to demonstrate a genuine commitment to human rights at home.

Under the committee’s follow-up procedure, Australia must explain how it will implement selected recommendations within 12 months. The committee’s selected recommendations focus on Australia’s treatment of refugees.

Australia was criticised at the review for a history of “chronic non-compliance” with committee recommendations. The challenge for Australia will be to engage positively with the recommendations and urgently implement substantive change to promote and protect human rights.

The ConversationA good starting point would be a national human rights act, to fully incorporate Australia’s international human rights obligations into law. Furthermore, Australia should reconsider its response to the Referendum Council’s recommendation of an Indigenous voice to parliament.

Anna Cody, Associate Professor and Director, Kingsford Legal Centre, UNSW and Maria Nawaz, Law Reform Solicitor/Clinical Legal Supervisor, Kingsford Legal Centre, UNSW

This article was originally published on The Conversation. Read the original article.

With a seat on the UN Human Rights Council, Australia must fix its record on Indigenous rights



File 20171024 13357 dzm0s0.jpg?ixlib=rb 1.1
The UN Human Rights Committee challenged the Australian government to produce policy that truly includes Indigenous people.
AAP/Dean Lewins

Anna Cody, UNSW and Maria Nawaz, UNSW

It was a big week for Australia at the United Nations last week. It won a seat on the leading international human rights body, the UN Human Rights Council, for a three-year term. The UN Human Rights Committee also reviewed Australia’s compliance with a key human rights treaty, the International Covenant on Civil and Political Rights.

One would assume the Human Rights Council seat means Australia will lead on issues of human rights domestically, including in the area of Indigenous rights (one of the five pillars of Australia’s bid) and self-determination.

However, as the UN Human Rights Committee review showed, Australia is failing to meet basic human rights standards for Indigenous peoples.

Violence against women in Indigenous communities

To its credit, the Australian government delegation was open and frank in its dialogue with the committee. The delegation acknowledged key areas in which the country needs to improve.

One of the pressing issues affecting Indigenous communities is family violence. Indigenous women are 45 times more likely to experience violence than non-Indigenous women. The severity of the violence is also greater, with higher rates of hospitalisation.

The government delegation acknowledged that the rate of violence against Indigenous women was “appalling”. It referred to “A$25 million for Indigenous-specific measures” and a “trauma-informed approach for children affected by violence”. This is just one measure the government is adopting to deal with violence against Indigenous women.

The NGO coalition, led by Kingsford Legal Centre and the Human Rights Law Centre, agreed with the government delegation that an area for hope was the recent appointment of June Oscar as the Aboriginal and Torres Strait Islander Social Justice Commissioner at the Human Rights Commission. Oscar has been at the forefront of effective, Aboriginal-led initiatives to deal with family violence in Fitzroy Crossing.

Indeed, the NGO coalition called for the government to include Indigenous women in the monitoring and evaluation of the National Plan to Reduce Violence Against Women and Their Children. It also called on it to fund Indigenous community-controlled services with expertise in working with victims/survivors of family violence.

Indigenous incarceration rates

An area in which Australia continues to breach international human rights standards is Indigenous incarceration rates. The national imprisonment rate for Indigenous adults is 13 times higher than that for non-Indigenous adults. While Indigenous people are only 2% of the population, they account for 27% of the prison population.

Mandatory sentencing and imprisonment for fine default, as canvassed by the current Australian Law Reform Commission inquiry, are key contributors to these statistics.

The UN Human Rights Committee repeatedly noted its concern about Indigenous incarceration rates and focused on policing of Indigenous communities. A committee member raised the case of Ms Dhu, who died in custody in Western Australia after being arrested for defaulting on fines. He asked why the laws providing for imprisonment for fine default had not yet been “scrapped”.

The committee also raised the recent case of an Aboriginal woman who called WA police for help in a domestic violence situation. She was taken into custody for a fine default, leaving her five children without support.

The Australian government was asked how this represented a “trauma-informed” approach to dealing with family violence.

Self-determination and constitutional reform

One of the key areas of interest for the NGO delegation and the committee was the response to entrenched disadvantage through effective policy. This connected closely with the identification of constitutional reform as advocated by Indigenous delegates at the regional dialogue process that produced the Uluru Statement.

The NGO delegation highlighted the need for Aboriginal-led policy design as articulated in the Redfern Statement and by numerous movements agitating for Indigenous rights since colonisation. The government delegation was keen to focus on constitutional recognition, while the NGO delegation advocated strongly for constitutional reform in accordance with the Uluru Statement.

In fairness to the Australian delegation, it certainly recognised the need for Indigenous-designed policy and implementation. This flies in the face of the government’s actions in cutting funding to Indigenous-controlled organisations, including the National Congress of Australia’s First Peoples.

In 2014, funding for Aboriginal services was substantially cut from $2.4 billion to $860 million under the Indigenous Advancement Strategy. And 55% of grants were allocated to non-Indigenous bodies, effectively mainstreaming services.

Where to from here?

The UN Human Rights Committee challenged the Australian government to produce policy that truly includes Indigenous people.

One of the challenges of human rights treaty reviews is to ensure that the government implements the recommendations that the committee makes. Australia has a terrible record in this area, being called out for “chronic non-compliance” by the committee.

The ConversationHopefully, the seat on the Human Rights Council will encourage the government to heed the words of the UN Human Rights Committee and ensure real progress on Indigenous rights.

Anna Cody, Associate Professor and Director, Kingsford Legal Centre, UNSW and Maria Nawaz, Law Reform Solicitor/Clinical Legal Supervisor, Kingsford Legal Centre, UNSW

This article was originally published on The Conversation. Read the original article.

Australia’s Human Rights Council election comes with a challenge to improve its domestic record



File 20171015 1509 2qi6re.jpg?ixlib=rb 1.1
Australia’s campaign for a seat on the Human Rights Council opened it to further scrutiny of its record on such issues.
Reuters/Denis Balibouse

Amy Maguire, University of Newcastle and Georgia Monaghan, University of Newcastle

Australia has been elected to a seat on the United Nations Human Rights Council. It will serve on the council from 2018 to 2020.

The announcement overnight formalised an assumed result: Australia and Spain were the only two countries seeking election to the two available seats for the Western Europe and Others group. Most of the other newly- elected council members similarly ran uncontested.

However, all campaigning countries required the support of a majority of voting countries to ensure their election. Australia received 176 votes and Spain 180 – both survived grilling by an expert committee.

How did Australia present itself as a candidate?

Foreign Minister Julie Bishop led Australia’s campaign, which had a particular focus on freedoms, free speech, and equality. The “five pillars” of Australia’s bid were:

  • gender equality

  • good governance

  • freedom of expression

  • the rights of Indigenous peoples

  • strong national human rights institutions and capacity building.

Australia presented itself as a “pragmatic and principled” candidate for the council position. Bishop cited Australia’s “strong track record for human rights” as well as its active and practical involvement in international affairs.

Such active and practical involvement can be seen in Australia’s advocacy for the abolition of the death penalty, as in the case of Myuran Sukumaran and Andrew Chan. Furthering global advocacy for death penalty abolition is one of Australia’s primary pledges as a new council member.

Australia’s involvement in multiple UN treaties and its anticipated adoption of the Optional Protocol to the Convention against Torture were also cited as evidence of its worthiness for election.

//platform.twitter.com/widgets.js

Australia’s bid and opportunities for human rights advocacy

However, Australia’s campaign opened it to further scrutiny of its human rights record. Human rights organisations in Australia and overseas have been lobbying to ensure that Australia’s practices are well publicised and subject to oversight and critique.

In December 2016, Bishop sought to pre-empt such criticism, claiming “no country is perfect”. Bishop pledged to be “honest and open” about Australia’s human rights record during the campaign.

Yet the campaign’s pledges failed to acknowledge Australia’s human rights abuses. As such, Australia remains open to accusations of hypocrisy on human rights.

Australia’s human rights track record is more chequered than it would claim. The UN has condemned Australia for its asylum-seeker policies and treatment of Indigenous peoples.

Bishop frequently praised Australia for its success in building a multicultural society and valuing the diverse background of migrant settlers. Yet asylum seekers arriving by boat continue to be dehumanised.


Further reading: ‘Fake refugees’: Dutton adopts an alternative fact to justify our latest human rights violation


Another key area of human rights controversy is the current postal plebiscite to survey public opinion on marriage equality. Australia’s council bid promised the protection of LGBTQI rights. But as was forewarned, the plebiscite campaign has exposed LGBTQI people to harmful fear campaigning and social exclusion.

It is incongruous for a claimed champion of human rights to put the rights of a minority group to a popular vote, potentially in an effort to prevent that group from gaining marriage equality.

Australia strikes a similarly dissonant note in relation to its treatment of Indigenous people. A key pledge of the council bid was the recognition of Indigenous Australians in the Constitution. However, a constitutional convention rejected the form of “recognition” the government-sponsored Recognise campaign had promoted.

The Recognise campaign has since been abandoned, and the future of the proposed referendum is unclear. The Australian government is yet to embrace the Referendum Council’s proposals for treaty, truth-telling and a First Nations Voice.


Further reading: Listening to the heart: what now for Indigenous recognition after the Uluru summit?


France’s withdrawal was a loss to the election campaign

Given Australia’s record, France’s withdrawal as a third candidate for the two available seats was unfortunate. The lack of competition reduced pressure on Australia to extend its human rights commitments.

The weight of international disapproval of Australia’s practice in relation to refugees, in particular, could well have weakened the bid had France stayed in the race.

No doubt this was also true for Spain. The recent Catalan independence referendum exposed Spain’s problematic record in relation to self-determination and political rights for minority groups.


Further reading: As Spain represses Catalonia’s show of independence, the rest of Europe watches on nervously


In interesting company

The UN’s orientation is to promote inclusion rather than marginalisation of member countries on international bodies. The UN is committed to universal values and obligations, and seeks to enforce these through universal involvement in its processes.

It is undoubtedly difficult to countenance egregious human rights violators participating in human rights processes. But it is at least arguable that their involvement promotes the progressive realisation of human rights more effectively than their marginalisation would.

However, in some cases, it may be that a country’s membership should be postponed until it can show improvement in a deplorable record. Leading up to the election, Human Rights Watch campaigned against promoting the Democratic Republic of the Congo to the council due to its grave human rights violations.

Meanwhile, the US warned it may withdraw if the council continued to elect countries responsible for gross abuses.

Australia is not in this category. It aspires to be an exemplary member of the council. And its election should act as impetus for progressive gains in its human rights performance.

The value of Australia’s election for human rights

Human rights advocates will take the opportunity to draw attention to any gaps between Australia’s international legal obligations and its domestic practices.

Bishop was right to highlight the value of Australia becoming the first Pacific country to join the council. Strong diplomatic and trade relationships will hopefully enable Australia to influence human rights development in its region. It is the only place without a regional human rights treaty or institution.

An important focus in this context will be Australia’s advocacy for the abolition of capital punishment. Allied to that concern for the right to life, perhaps Australia might also consider lobbying other countries – notably the US – for gun laws that prioritise human life and wellbeing.

Australia could substantially increase the legitimacy of such efforts, though, by working to build adequate domestic human rights architecture. Without federal human rights legislation, Australia cannot demonstrate the social and legal value of building human rights protections into law.

Australia’s election also calls for a renewal of political commitment to the value of international human rights review processes. Recent years have seen expressions of frustration, dismissal and poor faith that undermine Australia’s strong record of commitment to international human rights treaties.

Nowhere was this troubling attitude toward human rights protection more clear than in efforts to tarnish the reputation and work of former Human Rights Commission president Gillian Triggs.

Such mixed messages sit poorly with Australia’s continued efforts to review the practices of other countries – particularly now that it has an official role on the Human Rights Council.


Further reading: Why does international condemnation on human rights mean so little to Australia?


Australia has claimed leadership in the areas of gender equality, good governance, freedom of expression, the rights of Indigenous people, and strong national human rights institutions.

Imperfect performance in these areas indicates key targets for immediate focus – for example through human-rights-informed approaches to gendered violence, and concern for limitations on the freedom to express views about politically sensitive matters.

Considerable progress will be required on the rights of Indigenous people for Australia to claim success on that key pillar of its council campaign. The federal government could look to progress on a treaty in Victoria as evidence that such a conversation can be inclusive and productive.

The ConversationImportantly, Australia must also be held accountable in the key area its bid sought to avoid: the treatment of asylum seekers and refugees. Its election provides an ideal opportunity for Australia to show leadership and commitment to durable regional and global responses to refugee flows.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle and Georgia Monaghan, Research Assistant, University of Newcastle

This article was originally published on The Conversation. Read the original article.

United Nations: Weakness on West Papua


The link below is to an article that reports on the snub given at the UN towards West Papua.

For more visit:
https://www.theguardian.com/world/2017/sep/30/west-papua-independence-petition-is-rebuffed-at-un

UN condemnation and a sports boycott: Australia again called on to end offshore detention



File 20170724 28293 1mgcx0c

EPA/Nyunt Win

Amy Maguire, University of Newcastle

On ABC TV’s The Drum on Monday, author Antony Loewenstein called for a sports boycott of Australia. Loewenstein’s argument was that such a move from other countries could force a change in approach to the offshore detention of asylum seekers who travel to Australia by boat.

//platform.twitter.com/widgets.js

Sports boycotts have had a colourful history in the UN era. By far the most-well-known is the boycott of apartheid South Africa.

There has been debate regarding the impact of sporting boycotts in the past. In the South African case, sports boycotts were accompanied by wide-ranging political and economic sanctions. Apartheid was almost universally condemned as a violation of the international legal prohibition on racial discrimination.

No doubt a boycott of sports-loving Australia would be hugely controversial. However, a boycott seems highly unlikely to eventuate. Criticism of Australia’s refugee policies tends to come from or through UN humanitarian bodies and NGOs more so than from individual countries.

The major sporting codes in Australia are also largely domestic. So, boycotts of Australian rules football or rugby league would likely have a negligible effect. And a boycott would potentially risk the further entrenchment of negative attitudes toward asylum seekers travelling by boat.

Australia again criticised for offshore detention

Loewenstein’s argument was prompted by the latest in a long series of international critiques of Australia’s policy of mandatory offshore detention of people who seek asylum here by boat.

Specifically, the UN High Commission for Refugees (UNHCR) chief Filippo Grandi has accused Australia of misleading conduct.

The UNHCR describes as “exceptional” its decision to assist Australia in concluding a refugee transfer arrangement with the US. That arrangement has been mired in controversy. It was agreed in the final days of the Obama administration. Tensions arose early in the Trump administration over what the new president described as “the worst deal ever”.

The two countries now appear set to manage the transfer of a large number of those still in offshore detention on Nauru and Manus Island. The fate of those who do not pass US checks remains uncertain.

Yet, according to the UNHCR, Australia committed to resettling vulnerable affected refugees in Australia if they had family members already living in the community. However:

UNHCR has recently been informed by Australia that it refuses to accept even these refugees, and that they, along with the others on Nauru and Papua New Guinea, have been informed that their only option is to remain where they are or to be transferred to Cambodia or to the United States.

This means, for example, that some with serious medical conditions, or who have undergone traumatic experiences, including sexual violence, cannot receive the support of their close family members residing in Australia.

Human Rights Watch Australia regards the UNHCR’s statement as a stinging rebuke of Australia’s non-compliance with international legal obligations towards refugees and asylum seekers.

//platform.twitter.com/widgets.js

The Human Rights Law Centre joined the call for an immediate end to offshore processing and the resettlement in Australia of the 2,000 people still on Nauru and Manus Island. Immigration Minister Peter Dutton has reiterated Australia’s commitment never to resettle refugees in Australia if they have been transferred to offshore detention.

Fruitless attempts to force compliance?

The perennial problem of international law – particularly troubling for students of the area – is the often overwhelming difficulty of requiring countries to comply. The international legal system lacks a court of compulsory jurisdiction, police force, or global parliament.

When compared with a robust domestic legal system like Australia’s, the international legal system appears weak on enforcement mechanisms. Famously, though:

Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.

Australia is – across a vast range of areas – an enthusiastic proponent of the international legal system. In the human rights context, Australia routinely comments on the performance of other countries and describes itself as a global leader in human rights.

However, as I wrote last week, there is a disjuncture between Australia’s policy and practice on asylum seekers and its bid for a seat on the UN Human Rights Council. Continued international critique of mandatory offshore immigration detention undermines Australia’s standing.

Political leaders of both major parties have maintained a longstanding commitment to punitive dealings with asylum seekers travelling by boat without visas. This is an area of Australian practice that seems unlikely to shift in response to international critique.

The ConversationInstead, the will to locate humanity within Australia’s refugee policy must come from within. While Loewenstein’s sports boycott proposal seems improbable, it was worth making to highlight Australia’s intransigence in this area.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle

This article was originally published on The Conversation. Read the original article.

Australia’s bid for the UN Human Rights Council


Sarah Joseph, Monash University

Foreign Minister Julie Bishop has announced that Australia is running for a seat on the UN Human Rights Council for the period of 2018 to 2020. The bid was originally made by the previous government, and has now been officially endorsed by this one.

What is the Human Rights Council?

The UN Human Rights Council was established in 2006 to replace the UN Commission on Human Rights, which had run from 1947 to 2006. In that time, the commission had some impressive accomplishments, including its early drafting of the Universal Declaration on Human Rights (UDHR) in 1948, and most of the core UN human rights treaties. The commission played a role in promoting and developing human rights norms, and investigating and highlighting human rights issues and crises.

However, by the time of its demise, its reputation was so clouded that its official name seemed to have become “the Discredited” Human Rights Commission. The West felt that too many countries with terrible human rights records, such as Sudan and Zimbabwe, were joining the commission (it had 53 member nations) to protect themselves from censure. In contrast, developing nations felt that the commission had become too antagonistic in its dealings with them.

A revamp was needed, so the commission was replaced by the council, which has the same normative and investigative functions and has 47 member nations. It has one major new function, the Universal Periodic Review (“UPR”), whereby the human rights record of every UN member is reviewed by the council (as well as all other “observer” nations) every four-and-a-half years.

The 47 seats are divided between the five official UN regions in the following way: Africa (13); Asia (13); Latin America and the Caribbean (8); Western Europe and Other (7); Eastern Europe (6). Australia is in the Western Europe and Other Group, known as WEOG. One-third of the council is elected every year by the UN General Assembly, and members serve three-year terms. No member may serve more than two consecutive terms. A member can also be suspended from the council upon a vote of two-thirds of the UN General Assembly: Libya was so suspended in 2011 after Muammar Gaddafi’s crackdown on Arab Spring protesters and armed dissidents.

As the council’s members are representatives of their governments rather than independent human rights experts, it is hardly surprising that the council, like the commission before it, is a highly politicised body. So is the council an improvement upon the “discredited” commission? While the UPR is capable of improvement, it has generally been praised as a jewel in the council’s crown, which clearly distinguishes it from the commission.

Nevertheless, many of the same criticisms arise as were levelled at the commission. Some of its members, now and in the past, have terrible human rights records. After all, while Libya was suspended in 2011, one may fairly ask why it was elected in the first place?

Saudi Arabia’s leadership role is currently attracting much adverse media attention. Russia, China and Cuba are routinely elected, as was the case with the commission, though they all had to sit out 2013 as they had all served two consecutive terms. It is no coincidence that 2013 was a comparatively productive year for the council. **

Human rights criteria were mooted as prerequisites for membership back when the council was created. However, the UN’s nearly 200 members could not agree on substantive criteria, as they have different views on human rights. The US, for example, wanted only “democratic nations” to be eligible, whereas a focus on the implementation of economic and social rights might have led to the exclusion of the US itself.

Procedural criteria, such as a nation’s record on ratification of human rights treaties, would have been more objective. However, such criteria may have led to the exclusion of the two most powerful countries in the world – the US and China. As it stands, members commit to the highest standards of human rights, and countries should take into account a nominee’s human rights record when voting. But both of these rules are basically unenforceable.

Nevertheless, I believe that the membership of the council has generally been better than was the case with the later years of the Commission on Human Rights. It is notable that notorious abusers such as Sri Lanka and Belarus have sought and failed to gain election, while Syria was sensibly talked out of running in 2011. The secret ballot for council elections may be a key here, as there is a chance that a UN region will lose a seat for a year if an insufficient number of its nominees are deemed acceptable enough to be elected by a majority of the UN General Assembly.

The council is also criticised for running hard against human rights abuses in some contexts, while being notably soft in others. For example, inconsistency arose in 2009 when Israel was heavily condemned over Operation Cast Lead in Gaza while Sri Lanka was effectively praised a few months later for the end of its long-running civil war despite thousands of civilian deaths.

To be fair, the 2009 Sri Lanka resolution was possibly a nadir in the council’s operations, and it has been more proactive in responding to major human crises since, such as those in Côte d’Ivoire, Libya, Syria, Mali and the Central African Republic. It has also now adopted resolutions condemning Sri Lanka and calling for war crimes investigations. However, Australia did not support the 2014 resolution, presumably as it sought continued political favour with Sri Lanka to ensure its ongoing co-operation to stop asylum seeker boats.

A global intergovernmental body focusing on human rights is important. Such a body will always be dogged by politics, but it is important to have such a forum as countries care more about what other countries think than they do about the statements of human rights experts and NGOs. The council is that global intergovernmental body, and its evolving membership represents the world of today, warts and all.

It is doubtful that the battle for universal human rights observance will be won by adopting an “us and them” mentality which excludes significant numbers of countries even running for election for the “human rights club”. It could lead to balkanised human rights discussions, and possible competing institutions within the UN. The council must be a forum where non-like-minded countries can talk to each other and cross divides (as does happen on occasion) to make important human rights decisions.

Australia and the council

Australia is seeking a three-year term from 2018. It is competing with France and Spain for two WEOG seats. Will Australia be elected?

It is impossible to predict; much water will flow under the bridge before the election in 2017. Widespread praise for the role Australia ultimately played as a Security Council member indicates a reasonable amount of goodwill towards us. Clearly, France and Spain have the advantage of being members of the European Union, meaning they likely have a solid bloc of votes locked in.

On the other hand, Australia benefits from being seen to represent a different region than the always-well-represented Europe. Australia could for example try to position itself as a champion of the Pacific nations, and we will no doubt use the eternal narrative that “we punch above our weight”. Furthermore, the EU has frankly been dysfunctional in its lobbying efforts on the council, due to its slowness in being able to pin down a position among its own members.

Australia’s own human rights record will be of relevance to nations in deciding how to vote. Australia’s upcoming second UPR on November 9 will enable us to see what their major concerns are.

Australia has significant and well-known human rights problems, for example concerning asylum seekers, onshore and offshore detention, Indigenous people, violence against women and counter-terrorism laws. Here, I will focus on issues which have the capacity to undermine Australia’s reputation for cooperation with the UN.

One concern will be the Abbott government’s hounding of Gillian Triggs, the president of Australia’s Human Rights Commission, as those attacks do not sit well with the single resolution that Australia routinely co-sponsors before the council – that concerning the importance and independence of National Human Rights Institutions. However, it is likely that the government’s open hostility towards Triggs will soften under new Prime Minister Malcolm Turnbull.

Of great concern will be Australia’s attitude to its direct engagements with UN human rights bodies. We do not have a good record of implementing the findings of the UN treaty bodies, which have found Australia to be in breach of international human rights law more than 40 times.

In March, the UN Special Rapporteur on Torture, an independent human rights expert who is appointed by and reports to the council, found that Australia’s treatment of asylum seekers contravened anti-torture standards. Then-prime minister Tony Abbott petulantly responded that Australia was “sick of being lectured to” by the UN.

Only this week, the Special Rapporteur on the human rights of migrants postponed his official trip to Australia as the government could not guarantee that he could receive information from people about the offshore detention centres without those people suffering legal reprisals under the Border Force Act.

If Australia’s reputation for non-co-operation with the UN continues to grow, its council bid could and should suffer.

Conclusion

Australia has a long and proud history with regard to human rights and the UN. Herbert Vere Evatt oversaw the adoption of the UDHR in 1948 as the president of the UN General Assembly. Distinguished Australians have served on the UN treaty bodies (for example, Elizabeth Evatt, Ivan Shearer and Ron McCallum) and as Special Rapporteurs (for example Philip Alston is the current Rapporteur on extreme poverty and human rights).

It is appropriate for Australia to continue that history of leadership and engagement by running for the Human Rights Council. It is a flawed body, but a necessary one.

Australia’s road to election in 2018 will however be tough. A good faith attitude to our upcoming UPR and the resultant recommendations, as well as efforts to redress our considerable human rights failings, will help in that regard.


**The sentence on Saudi Arabia was added a few minutes after posting, due to the topicality of that issue.

The Conversation

Sarah Joseph, Director, Castan Centre for Human Rights Law, Monash University

This article was originally published on The Conversation. Read the original article.