By Donald K. Anton
Director, Law Futures Centre, Griffith University
Professor of International Law, Griffith Law School
The United States (US) announced on the 20th of June 2018 that it was withdrawing from its seat on the United Nations Human Rights Council (HRC). It added another sad day for those resisting transparent attempts around the world to undermine the more liberal, tolerant, and enlightened world that our wiser forbearers created after the untold horror, death, and sorrow left by the scourge of two world wars.
The move by the US came a day after the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, condemned the Trump Administration’s abhorrent short-lived policy of separating parents crossing the southern US border from their children as a deterrent to migration. The High Commissioner declared that the Trump Administration’s policy of “seek[ing] to deter parents by inflicting such abuse on children is unconscionable.” He called on the United States to immediately ratify the Convention on the Rights of the Child (CRC) and end its isolation as the only UN Member that is not a party to the treaty.
The U.S. policy offends a number of provisions in the CRC, notably Article 3 and Article 9. It also, arguably, contravenes parallel customary international obligations related to the best interest of the child, which were held to be binding on the United States in a case Don Beharry brought against President Bill Clinton’s Attorney-General, Janet Reno. One hopes that US civil liberties lawyers sue out a writ of habeas corpus on behalf of the separated children soon to test the legality of the reported ongoing separation of thousands of children.
Despite the closeness in time between the High Commissioner’s criticism and the US’s withdrawal from the HRC, the move by the Trump Administration was hardly surprising given his Administration’s repeated demonstration of animosity toward international organisation and cooperation. Indeed, the move was partly telegraphed in June 2017 by the U.S. Ambassador to the United Nations, Nikki Haley, when she spoke at the Graduate Institute in Geneva in terms highly critical of the HRC. Ambassador Haley stated:
When the [HRC] fails to act properly – when it fails to act at all – it undermines its own credibility and the cause of human rights. … Sadly, the case against the Human Rights Council today looks an awful lot like the case against the discredited Human Rights Commission over a decade ago. Once again, over half the current member countries fail to meet basic human rights standards as measured by Freedom House [and] the victims of the world’s most egregious human rights violations are too often ignored by the very organization that is supposed to protect them. … [T]he United States will not sit quietly while this body, supposedly dedicated to human rights, continues to damage the cause of human rights. … The status quo is not acceptable. It is not a place for countries who champion human rights.
The substance of this criticism is not new. And, indeed, the complaint has merit. It is beyond argument that some members of the HRC have much, much poorer human rights records than others. Too many states ‘observe’ human rights mainly in the breach of their obligations. No state or government has an unblemished human rights record, but giving persistent, egregious human rights abusers a seat at the table has always been and continues to be problematic. It is something that human rights champions have rightly criticised. Electing states that wilfully abuse human rights like Russia, the Philippines (both previously on the HRC) and China (currently on the HRC) to the Council, the very body charged with protecting international human rights, cannot help but seriously undermine rights guarantees and bring the Council into disrepute.
Still, Ambassador Haley, in her 2017 Graduate Institute comments, explicitly stopped short of stating that the US would withdraw. Instead, she affirmed that “America does not seek to leave the Human Rights Council. We seek to reestablish the Council’s legitimacy”. Strengthening the HRC is, of course, a goal which all states that value human dignity should be striving toward. And, one was left quite plausibly to conclude that the Trump Administration thought it could better influence and guide the work of the HRC as an insider, rather than as a marginalised vocal critic (and, perhaps, target) on the sidelines.
This sort of strategic thinking about the impact of insider influence is supported by the facts according to the UN Dispatch. It points to a report released last year by the Council on Foreign Relations, a preeminent nonpartisan US foreign policy think tank, prepared by Mark Lagon and Ryan Kaminski. The authors examined the work of both the HRC and its predecessor, the UN Commission on Human Rights, from 1984 – 2017. They found that the years in which the United States served as a member were demonstrably better for human rights in at least two areas, than when it did not.
First, the report demonstrated that significantly more country-specific mandates to investigate poor human rights performance were added to the HRC’s agenda when the US was on the HRC, compared to the years it was not. Second, the report showed that the number of Israel-specific resolutions – considered inordinate by some – decreased by more than half when the US was on the Council. With the departure of the US from the HRC, this evidence taken together, points to a future in which there will be less focus on states with problematic human rights records and a heightened singling out of Israel. This is the antithesis of US human rights policy goals.
In the end, even if the withdrawal by the Trump Administration is not wholly unexpected, it is patently unwise. It is foremost a bad outcome for human rights globally. The US forfeiture of its seat on the HRC will surely serve to empower actors on the Council like China, Saudi Arabia, Burundi, and Venezuela, which routinely trample on universal human rights. Further, no other like-minded champion of human rights seeking to occupy the newly vacated seat can realistically match the global diplomatic and political suasion of the US. Simply put, the US is losing access to an established, internationally recognised venue to more effectively promote human rights globally, and, at the same time, allowing those whose human rights are abused to fall prey to the cynical maneuvers of governments that think little, if anything, of human rights and which will certainly take advantage of the vacuum.
It is especially important now that Australia becomes a more active leader of the HRC, along with other member states dedicated to protecting human rights. At a minimum, Australia should be a much larger presence in highlighting country-specific human rights violations in the region. It should be engaging more closely with civil society to bring issues to the attention to the Council as a whole. It should be active in providing support for the Special Procedures of the HRC and the independent work of expert country and thematic mandate holders; mandate holders like Australian Professor Philip Alston at the New York University School of Law who, the Washington Post recently reported, was pressured by the US State Department to go easy in his report into poverty and economic inequality in the United States.
It is worth concluding by noting that the bad outcome for human rights is not the only bad outcome for the US. The US is not likely to gain much, if anything, by leaving the HRC and it has more to lose. A poll released by the Lowy Institute this June found that “[t]here is no question that Donald Trump’s presidency has eroded Australians’ trust and confidence in the United States as a responsible global actor: that trust has fallen to its lowest point in the Poll’s history”. More specifically, “A bare majority of Australians (55%) say they trust the
United States to ‘act responsibly in the world’, in a six-point fall since 2017, a 28-point fall since 2011, and the lowest level of trust in the United States ever recorded” in Lowy Institute polling. Australia is not alone. The Pew Research Center in the US found that after the election of President Trump, favourable views of the US fell significantly, sometimes by double digits, across most of the 37 states it polled. A 2018 Gallop poll on perceptions of US leadership had dropped to a new low and found almost universal downward trends. The US withdrawal from the Human Rights Council serves to further undermine its leadership and trustworthiness, not only in Australia, but also around the world.
This blog post appeared in the Canberra Times on 30 June 2018, in the Forum Section and is reprinted with permission.
 Beharry v. Reno, 183 F. Supp. 2d 584, 600-601 (E.D.N.Y. 2002), rev’d on jurisdictional grounds sub nom. Beharry v. Ashcroft, 329 F.3d 51 (2d Cir. 2003), as amended (July 24, 2003), and abrogated without reaching the issue of customary international law by Guaylupo-Moya v. Gonzales, 423 F.3d 121 (2d Cir. 2005).