In 2006, a new Human Rights Council came into existence, replacing the former Commission on Human Rights with a restructured intergovernmental body for the global promotion of human rights and fundamental freedoms. Heralded as a turning point for human rights within the UN system, it was hoped that the new 47-member Council would operate with a renewed emphasis on fairness and objectivity, although it must always be remembered that the Council remains a political body governed by and directed by states. As a member of the Council from 2006-2009, Canada became known as the lead voice of opposition, voting against what it viewed as unbalanced resolutions censuring Israel and the adoption of a long-awaited United Nations Declaration on the Rights of Indigenous Peoples. Canada also voted on principle and with the support of its usual allies against a variety of resolutions reflecting an agenda embraced by Asian, African and Islamic states, who can use their Council vote allocations to serve their own political goals at the expense of achieving consensus. More worrisome, however, for the general health of the field of international human rights law is the seemingly unbridgeable gap between developed and developing states concerning the recognition of so-called "third generation" human rights, including collective human rights with an economic dimension, that is revealed by this review of the Council's resolution and decision-making activities from 2006-2009, focusing on those actions which were decided by a recorded vote. While the divisions between rich and poor, and North vs. South, clearly pre-date the Council's establishment, their continuation and impact within a new institution dedicated to renewed cooperation reveals a degree of dysfunction worthy of further discussion during the Council's first review scheduled to take place in 2011.
For those following developments within the field of human rights law and policy, 2006 was an important year since it marked the replacement of what had become the widely discredited United Nations (UN) Commission on Human Rights with a new and reinvigorated intergovernmental body. Heralded as a turning point for human rights within the UN system, the creation of the new UN Human Rights Council was greeted with high expectations and the hope that future efforts to foster global action on matters of basic rights and freedoms would be guided by considerations of fairness and objectivity. Eager to play a part within this new institution, Canada successfully ran for membership, and served as one of the Council's 47 member-states from its earliest days of operation in 2006, until June 2009. However, Canada soon became known as the voice of opposition within the new Council, registering a recorded "no" vote on contentious matters with a degree of frequency unequalled by any other Council member-state within the institution's first three years, and establishing a hitherto unexpected reputation within international circles as a voice of dissent. With Canada having now completed its term of membership on the Council, a timely opportunity presents itself for review and reflection on both Canada's experience and the general trends established during the Council's formative years. This assessment is also useful in light of the Council's first review to be conducted in 2011.
The purpose of this article is to lay a foundation for the 2011 appraisal of the Council's promised benefits as well as it's apparent burdens through an objective study of what has happened within the Council from 2006-2009 based on a careful review of the official record. This article also endeavors to undertake the analysis required to understand more fully the motivating factors behind Canada's position as the persistent dissenter within the Council. While others may wish to conduct an assessment of the Council's contributions through a particular analytical perspective, or by focusing on a specific theme within the field of human rights, (2) the aim of this research will be to provide a more foundational and equally valid contribution to the existing literature on institutional design and international human rights promotion by conducting a baseline review of the Council's decision-making activities focusing on the adoption of resolutions and decisions (3) by way of a recorded vote. Actions taken by way of a recorded vote, rather than by consensus, have significance since recorded votes only take place upon request and with the intention of creating a public record of positions taken. As a result, this review will rely upon, and be guided by, the consideration of primary sources generated by the Council itself, focusing in particular on the Council's reports to the main deliberative body within the UN, the UN General Assembly, as these reports serve as the official record of the Council's activities. (4)
Consideration will also be given to the voting record for each resolution and decision adopted by the Council from 2006-2009, and to any relevant historical antecedents, with a view to determining the key areas of controversy affecting the Council's organizational development and policy contribution potential. Although often overlooked, including by lawyers when citing UN resolutions in submissions before Canadian courts, voting records are themselves significant, (5) especially within the field of human rights where the resort to the act of voting may be viewed as revealing a weakness with the alleged fundamentality of the particular rights in issue. Moreover, the adoption of resolutions and decisions by consensus, and thus by definition without the need to call or record a vote, is thought to add both moral and political weight to the specific terms of an adopted text, while also bolstering arguments to the effect that a mutually-agreed international minimum standard has now emerged from which no state should depart. Resolutions adopted by consensus can also serve as powerful starting points to guide the multilateral negotiation of new legally-binding treaties on matters of human rights, especially when a resolution is used to signify the attainment of an international consensus with respect to a declaratory text of general principles and future aspirations. (6) Votes, therefore, do matter. Why else have votes, and an analysis of the voting record for the resolutions and decisions that were not adopted by consensus, given the observer a better sense of the key controversies existing within the particular international organ under discussion?
To assist with the examination of the Council's development in its earliest years, this review of the Council's decision-making activities for 2006-2009 is organized into five parts, beginning with an account of the Council's creation in 2006 and its subsequent refinement in 2007, before embarking on a detailed review of the Council's substantive activities. Part I provides an overview of the Council's creation in June 2006 and its legal mandate, while Part II explains the geopolitical realities of the Council's structure and the distribution of votes. Part III focuses on the agreement brokered in June 2007 to finalize the Council's functions, while Part IV provides a chronological review of the Council's substantive activities for 2006-2009, focusing on actions taken by way of a recorded vote. As will be discussed, division within the Council was evident from its very beginning, with a vote being called soon after its creation on the adoption of a proposed text for a new declaration on the rights of indigenous peoples. Because this division among states continued from within the 47-member Council through to the much larger 192-member UN General Assembly, the eventual adoption of a revised declaration text is discussed in Part V as well as the possible impact of the division on the declaration's normative contributions. This article then concludes with a summation of the key areas of dissent and division within the new Human Rights Council, while also reminding observers that even an intergovernmental body dedicated to human rights promotion is at base a political body, directed and controlled by states that share no obligation to pursue the same ideological goals and socio-political objectives.
THE CREATION AND MANDATE OF THE NEW HUMAN RIGHTS COUNCIL
The Human Rights Council was created by the UN General Assembly through the adoption of a resolution on 15 March 2006, (7) although the specific details of its functions and procedures were left open for further negotiation during the Council's first year of operation. The resolution was adopted by a recorded vote of 170 states in favour (including Canada), with Israel, the Marshall Islands, Palau and the United States voting against, and Belarus, Iran and Venezuela registering abstentions. According to the terms of the resolution, the Council was created to serve as an intergovernmental body responsible "for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner." (8) The Assembly further directed the Council to address situations of violations of human rights, including gross and systematic violations, through the adoption of recommendations, and made the Council responsible for promoting effective coordination and mainstreaming of human rights within the UN system. (9) The specific text of the resolution also required the Council to be guided in its work by the "principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation ..." (10)
As long-time observers of international human rights developments will recognize, this mandate for the new Council is virtually identical to that of the former, and now abolished, (11) Commission on Human Rights as modified over the years. Despite its successes in standard-setting and the...