Western States, the UN Commission on Human Rights, and the ‘1235 Procedure’: The ‘Question of Bias’ Revisited
| DOI | 10.1177/016934419501300402 |
| Date | 01 December 1995 |
| Published date | 01 December 1995 |
| Subject Matter | Part A: Article |
Part A: Articles
Western States, the UN Commission on Human Rights, and the
'1235 Procedure': the 'Question of Bias' Revisited
Henning Boekle'
Abstract
For nearly three decades, the UN Commission on Human Rights (CHR) has been
conducting public, country-specific investigations
of
gross human rights violations under
the '1235 Procedure '. Being a UN body comprised
of
governmental representatives, its
proceedings have often been highly politicised. During the 1980s, charges
of
bias against
the CHR were especially frequent among American observers. However, a comparative
analysis
of
individual governments' policies towards the 1235 Procedure is yet missing.
This article provides such an analysis for the Western States and shows that these have
themselves at least occasionally pursued biased policies in the CHR concerning gross
violations
of
human rights. More importantly, they have since the late 1970s irifluenced
the CHR's monitoring performance stronger than commonly acknowledged. Despite its
exposure to the impact
of
governments ,political interests, the 1235 Procedure nevertheless
provides a valuable forum
for
continuous exchange and coordination
of
policies with
respect to human rights violations, thus inciting governments to review their understanding
of
'national interest' in light
of
the promotion
of
human rights and establishing precedents
of
legitimate interference leading to a partial reinterpretation
of
the doctrine
of
State
sovereignty.
Introduction
During the 1980s, the alleged bias and double standards of the UN in the issue area
of
human rights was a recurring theme of American human rights literature. With respect to
UN human rights doctrine, the subordination of individual and civil-political rights to
collective and socio-economic rights was seen as an indication of an antiliberal ideological
bias. For UN monitoring practice, apro-Soviet political bias was concluded from the
unequal attention which UN organs have paid to different governments violating human
rights.I
The author holds an (1994) M.A. in Theory and Practice of Human Rights from the Human Rights Centre,
University
of
Essex, Colchester, UK, and an (1995) M.A. in Political Science and Modern History from
the University
of
Tubingen, Germany. The present article is a revised version
of
a paper presented at a
workshop on
'Human
Rights Norms and Domestic Political Change' at Weingarten, Germany, 15-18 June
1995. The author wishes to express his gratitude to James J. Busuttil, Andreas Hasenc1ever,
Volker
Rittberger, Frank Schimmelfennig, the Weingarten workshop participants, and members of the NQHR
Editorial Board for their helpful comments on earlier drafts. Daphne Glover helped with the English
translation.
The distinction
of
these two issues of bias is made by Jack Donnelly, 'Human Rights at the United Nations
1955-85: The Question of
Bias',
International Studies Quarterly 32,
No.3,
1988, pp. 275-303, at pp.
276-278. An example of criticism
of
an anti-civil/political rights bias in UN human rights doctrine is also
provided by Donnelly,
'Recent
trends in UN human rights activity: description and polemic', International
Organization 45,
No.4,
1981, pp. 633-654. For criticisms of bias inthe
CHR's
country-specificmonitoring,
367
NQHR4
/1995
This article focuses exclusively on the latter issue.
It
analyses the decision-making
of
the UN Commission on Human Rights (CHR) under its so-called'1235 Procedure' for the
public and country-specific investigation
of
gross violations
of
fundamental rights?
It
seeks to review the 'question of bias' in respect of two concerns. First, research on the
politics
of
human rights at the UN has as yet not sufficiently acknowledged that
intergovernmental organs such as UN political bodies are not unitary 'black boxes', but
that their decisions are marked by negotiations and politics and made by consensus or
majority rule according to the 'one member, one vote' principle.' By contrast to
constitutionalist, i.e. treaty-based procedures," the CHR's approach to monitoring may be
called functionalist.
It
proceeds from the UN Charter's vague human rights provisions,
documents such as the Universal Declaration of Human Rights whose legal bindingness
is disputable, custom and general principles
of
international law, and authorization for
monitoring mandates through its parent organ, the
UN's
Economic and Social Council
(ECOSOC).5Unlike treaty organs, most of which are comprised of independent experts,"
the CHR consists
of
instructed governmental representatives whose behaviour is often
contingent upon the more general foreign policies of their respective governments. Bias
is imported into the UN through 'the political biases of its members'," that is, State
governments. This article's main aim therefore is a comparative analysis
of
individual
States' political input into CHRdecision-making under the 1235Procedure which attempts
to trace the bias which is perceptible in the CHR's monitoring output back to its source.
see e.g. Glenn A.
Mower
Jr.,
'The
UN and Human Rights', in:
B1l110n
Yale Pines (ed.), A World Without
a UN: What Would Happen
If
the UN Shut Down, The Heritage Foundation, 1984, pp. 93-118, at pp.
98-99, and Jerome Shestack,
'The
Commission on Human Rights: Pitfalls, Progress, and a New Maturity',
in: Seymour M. Finger and Joseph R. Harbert (eds.), US Policy in International Institutions: Defining
Reasonable Options in an Unreasonable World, Westview Press, Boulder, Colorado, 1982, pp. 71-82, at
p. 75. For further quotations
of
similar criticisms see Donnelly,
'The
Question
of
Bias', loc.cit. (note I),
pp. 275-277.
On the CHR in general see Howard Tolley Jr., The UN Commission on Human Rights, Westview Press,
Boulder, Colorado
and
London 1987, and Philip Alston,
'The
Commission on Human Rights', in: Philip
Alston (ed.), The United Nations and Human Rights, Clarendon Press, Oxford 1991, pp. 126-210.
All non-plenary UN organs are elected according to the principle of equitable geographic distribution. The
Security Council, in
which
five states possess permanent membership and veto power, is the only exception
to this rule.
By constitutionalist approaches, such global and regional human rights protection procedures are referred
to which rest on international treaties establishing human rights norms, state obligations, and the
competences
of
the monitoring bodies on the basis of Member States' consent. For a clear explanation
of
the differences
between
'treaty-based' and 'Charter-based' monitoring procedures, see Philip Alston,
'Appraising the
United
Nations Human Rights
Regime',
in: Philip Alston (ed.), The United Nations and
Human Rights,
Clarendon
Press, Oxford 1991, pp. 1-21, at pp. 3-5.
The functionalist
character
of the
CHR's
approach to human rights monitoring is stressed by
ErnstB.Haas,
Human Rights
and
International Action: The Case
of
Freedom
of
Association, Stanford University Press,
Stanford 1970, pp. 123-125.
Anotable exception to this rule is the Committee on Economic, Social and Cultural Rights. It was formed
in 1987 as a subsidiary body to ECOSOC which had before itself performed monitoring underthe Covenant
on Economic,
Social
and Cultural Rights. See Philip Alston,
'The
Committee on Economic, Social and
Cultural Rights', in: Philip Alston (ed.), The United Nations and Human Rights, Clarendon Press, Oxford
1992, pp. 473-508. Conversely, the UN Sub-Commission on Prevention
of
Discrimination and Protection
of
Minorities,
though
asubsidiary organ to the CHR, consists
of
independent experts. See Asbjern Eide,
'The
Sub-Commission on Prevention of Discrimination and Protection of Minorities', in: Philip Alston
(ed.), The United Nations and Human Rights, Clarendon Press, Oxford 1992, pp. 211-265.
Donnelly,
'The
Question of Bias', op.cit. (note I), p. 300.
368
Boekle /Western States, the UN Commission on Human Rights, and the '1235 Procedure'
This appears an urgent empirical task because analyses
of
individual CHR members'
policies towards gross human rights violations are yet missing.
Secondly, the charges
of
bias made by American observers against the
UN's
human
rights policy make it apparent
that
the non-Western UN majority was exclusively
responsible for it.' This article is restricted to the analysis
of
'Western' States and
questions the assumption thattheir policies were generally bias-free. The following section
illustrates that bias in foreign human rights policy is entailed by the difficult relationship
between the ethical idea
of
human rights and governments' material foreign policy
interests in a world system which is organised on the basis
of
national States.
It
argues
that the institutional and procedural features
of
the 1235 Procedure expose it to the
political biases
of
its member governments.
I Human Rights, State Interests, International Institutions, and the Question of
Bias
A. Theory: Interest, Idealism, and Bias
Traditional theories
of
international relations regard the promotion
of
the 'national interest'
as the major concern
of
foreign policy whilst they view human rights idealism as both
illegitimate and counterproductive." The doctrine
of
universal human rights is by means
interventionist and challenges the principles
of
State sovereignty and non-intervention as
traditionally defined.'? Human rights criticism may jeopardise the promotion
of
the
'national interest'
if
it is addressed to military-political allies or important trade
partners. I I
It
can at best be instrumentalised as an ideological weapon against political
10
II
It is,
of
course, sometimes also argued that UN human rights policy is marked by a pro-Western bias. The
fact
that
the normative foundation
of
the
UN's
human rights standards was laid at a time when most
ofthe
non-Western world was still under colonial rule is frequently cited as a case against international
human
rights in general. Moreover, the vast majority
of
governments whose human rights violations have
been
criticised by UN organs are those
of
Third World States. Most recently, Western attempts to make the
granting
of
development aid conditional on the recipient governments' human rights practices are alleged
to affirm the character
of
global human rights politics as a North-South one-way road. This article focuses
on Western, predominantly American, allegations
of
bias and does not address these issues, but it should
be kept in mind that charges
of
bias against the
UN's
human rights policy can be made by the non-Western
world as well, especially after the end
of
East-West conflict which has left Western liberalism as the
globally dominant political ideology and the Western States as most powerful actors in world politics.
On the relationship between human rights and diplomacy, see Evan Luard, Human Rights and Foreign
Policy, Pergamon Press, Oxford etc. 1981, pp. 4-5; David D. Newsom, 'Introduction: The
Diplomacy
of
Human Rights: A Diplomat's
View',
in: David D. Newsom (ed.), The Diplomacy
of
Human Rights,
University Press
of
America, Lanham and London 1986, pp. 3-12, at pp. 9-11; Jack Donnelly, Universal
Human Rights in Theory and Practice, Cornell UniversityPress, Ithaca and London 1989, chapter 12; and
Peter R. Baehr, The Role
of
Human Rights in Foreign Policy, with a foreword by Peter Kooijmans,
Houndsmills etc. 1994,
chapter
3. On human rights and the national interest, see Peter G. Brown, '... in the
national interest', in: Peter G. Brown and Douglas MacLean (eds.), Human Rights and US Foreign Policy,
Lexington Books, Lexington, Mass. and Toronto 1979, pp. 161-171, and Jerome Shestack,
'Human
Rights,
the National Interest, and US Foreign Policy', in: Marvin E. Wolfgang (ed.), Human Rights Around the
World, Special Issue, The Annals
of
the American Academy
of
Political and Social Science, Sage,
Newbury
Park etc. 1989, pp. 17-29.
Stanley Hoffmann,
'Reaching
for the Most Difficult: Human Rights as a Foreign Policy
Goal',
Daedalus
112 (4), 1983, pp. 19-49, at pp. 32-33.
Though the term 'national interest', whose traditional
'realist'
interpretation focuses primarily on
military-political issues, is not so much en vogue
among
'liberalists' and 'institutionalists' who stress the
importance
of
economic issues, the usage of the term applied here is meant to include military-political as
369
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