Chapter 9:   RELATIONS WITH OTHER ORGANS AND ENTITIES

Section 2:   Economic and Social Council / Human Rights Council

 

Chinese-Russian response to Human Rights Council invitation underscores cleavages within Security Council

 

10 April 2019, Germany, during its Council presidency, hosted a breakfast for Security Council members to meet informally with Coly Seck, President of the Human Rights Council (HRC).  This breakfast was made public on 30 April, when Germany sent a note verbale requesting that an annexed follow-up letter from Seck be published as a Security Council document (S/2019/356).  

 

In his letter, Seck stated that the breakfast “proved to be a valuable opportunity to establish an informal channel of dialogue between the Human Rights Council and the Security Council and to strengthen the Geneva-New York relationship”.  Additionally, he recalled that during the breakfast, “a proposal was made that opportunities could be sought to organize some form of informal discussion in Geneva between the members of the Human Rights Council and the President of the Security Council for the month.”  In furtherance of this proposal, he suggested specific options for the format and dates of such an informal conversation.

 

While probably unintentional, this letter from the HRC President touched on issues which had long been contentious within the Security Council.  After a delay of one month, on 30 May 2019, the representatives of China and the Russian Federation sent a letter in which they raised objections to several points in Seck’s text (S/2019/449). 

 

1.   In this context, the most significant field of disagreement which exists among Security Council members is the subject of human rights itself.  For a number of Council members, there is a clear link between human rights and many questions of international peace and security.  Therefore, in the words of the representative of France, “in order to act, the Council should have at its disposal all the information it needs to understand the crises it considers, including information on human rights.”[1]

 

For a minority of Security Council members, however, the primary role of the Council is “to maintain international peace and security, not to consider human rights issues”, as has been stated by China.  This position has been justified as being grounded on a strict interpretation of Article 2(7) of the Charter, which provides that “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state . . .” 

 

Over the last 15 years, these opposing positions have led to calls for procedural votes when some members proposed that the Security Council adopt agenda items related to human rights situations in Zimbabwe (2005), Myanmar (2006), the Democratic People’s Republic of Korea (2014-2017) and Venezuela (2019).  In each case, a sufficient number of Council members voted for the meetings to go forward, but those Council members which cast negative votes maintained their stances.

 

2.  A second area of contention brought out by the HRC President’s letter relates to the position voiced by some members of the Security Council that for it to take up human rights issues constitutes encroachment on the mandates of other UN organs.  As once enunciated by the representative of China, “Pushing the Security Council into discussing human rights issues erodes the functions of other United Nations organs.”  This point was underscored in the Chinese-Russian letter when it stated, “We are convinced of the necessity of following the existing division of labour between the principal organs of the United Nations.” 

 

3.  A third contentious issue relates to the hierarchy of UN bodies.  The Russian Federation in particular has long maintained that the Security Council, by reason of the strength of its mandate, is not on the same plane as other UN organs.  In keeping with this view, the Chinese-Russian letter appears to be arguing that any meeting between the Security Council President and the HRC members might falsely give the impression of parity between the two bodies.  This is evidenced by the letter’s statement that “The Human Rights Council is a subsidiary organ of the General Assembly and as such is not authorized to interact with the Security Council.”  Elsewhere, the Russian representative has affirmed that “The United Nations system is not organized so that any United Nations body can send the Security Council any information it feels like.”

 

In this connection, formal objections have been raised in the past to hearing briefings in official meetings from the UN High Commissioner for Human Rights[2] or individuals appointed by the Human Rights Council[3] or its precursor, the Human Rights Commission.[4] 

 

4.  A fourth area of sensitivity relevant to Seck’s letter is the status of informal events organized outside of the Security Council’s regular formats by Council members acting in their national capacities.  While a number of Council members feel that informal gatherings can be more conducive to progress than scripted official meetings and consultations, others are mistrustful of at least some of these events. 

 

5.  In a related point, Council members who are wary of informal events tend especially to consider that such events generally are not suitable venues for decision-taking.  In the case of the 10 April breakfast, the Chinese-Russian letter challenged Seck’s assumption that two decisions were agreed at that event:  1) to establish an informal channel of dialogue between the two bodies; and 2) to convene an informal discussion in Geneva between the Security Council President and the HRC members. 

 

To the contrary, the Chinese and Russian representatives stated categorically that they “do not consider the informal breakfast of the members of the Security Council and the President of the Human Rights Council . . . as the establishment of an informal channel of dialogue between the Security Council and the Human Rights Council”.  They also recalled that at the breakfast they “did not express their support for the proposal of convening an informal discussion of any kind in Geneva between the members of the Human Rights Council and the President of the Security Council.”

 

Their letter goes on to affirm that “any contacts between the President of the Security Council and the Human Rights Council shall be considered and agreed upon by the members of the Security Council in accordance with the established procedure.”  This would seem to state a view that for this type of decision to be reached, a written proposal would need to be submitted to all Council members under a regular no-objection silence procedure.

 

The last paragraph of their letter appears intended to discourage any Security Council President from trying to circumvent Chinese and Russian objections simply by traveling to Geneva at a time opportune for an informal meeting with the HRC members.  In that paragraph, the letter asserted that absent a formal approval process, “all possible trips of the President of the Security Council to Geneva for an informal dialogue with the members of the Human Rights Council will be considered as unapproved initiatives and the President of the Security Council will not be representing the Council in that capacity.”

 

Overall, the letter from the Human Rights Council President appears to reflect a misreading of what transpired during the 10 April breakfast, as well as an apparent lack of familiarity with the present dynamic among Security Council members with regard to the contentious issues detailed above.  This seemingly led Seck to make the misstep of putting into writing conclusions which had not been verified. 

 

In any event, publication of his letter provided an occasion for the representatives of China and the Russian Federation to remind other Security Council members, and the wider UN community, of their positions regarding each of the above issues.  And while these two permanent members were the only signatories of their letter, some elected members have held similar views on at least some of these points.

 

It is unclear whether Germany’s decision to circulate the HRC letter was a miscalculation or was taken with awareness that disagreement was likely to be voiced.  If in fact Germany underestimated the strength of opposition to establishing “an informal channel of dialogue” between the Security Council and the HRC, this points to the need for caution in drawing conclusions from informal events organized by Council members in their national capacities.  On the other hand, the airing of conflicting views carried out through this exchange of letters – with regard to human rights, the mandates of UN bodies, and proper decision-making procedures in the Council – may be merely another example of the present trend for Council members to publicly highlight their differences.

 

(This update supplements pages 256 and 594 of the book.)

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[1] All quotes by Security Council members which are not cited to the Chinese-Russian letter are from the Council meeting held on 19 March 2018 (S/PV.8209).

[2] See a related article on this website on how a 19 March 2018 procedural vote prevented the High Commissioner for Human Rights (UNHCHR) from briefing the Council in a formal meeting on the situation in Syria.  Earlier, the UNHCHR had, without objection, addressed formal Council meetings on several occasions.

[3] See a related article on this website about objections raised on 22 December 2014 to hearing a briefing by the head of the HRC Commission of Inquiry on human rights in the DPRK.

[4] In August 1992, four Council members objected to a proposed briefing, in his personal capacity, by Max van der Stoel, Special Rapporteur of the Commission on Human Rights, on the human rights situation in Iraq (S/PV.3105).  In November 1992, two Council members objected to a proposed personal invitation to Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights for the former Yugoslavia (S/PV.3134), and to a further invitation to van der Stoel (S/PV.3139).  However, in all three cases, no procedural vote was conducted.  Rather, after note was taken by the Council President of the objections raised, the briefings proceeded.