Sri Lanka, Russia and China at the UN Human Rights Council

 An important takeaway for countries that complain of a lack of objectivity on the part of HRC/OHCHR or any other International entity is to ensure that such countries have independent processes and mechanisms that can be trusted for objectivity

• The UN Security Council has not been successful, despite efforts by US and UK, to adopt a binding resolution on the Ukraine-Russia war

At the current session of UN Human Rights Council in Geneva, in addition to Sri Lanka, both Russia and China are facing a draft resolution and a draft decision respectively. This must be the first time in the HRC (or, its predecessor -- the Commission on Human Rights) that both countries figure at a ‘pronouncement’ stage, at the same time, beyond general raising of concerns, statements, thematic discussions etc.  

A resolution on Russia may have been expected against the backdrop of allegations of grave/gross HR and Humanitarian Law violations and of referendums held in ‘Ukrainian regions’ where ‘Russian language-speaking’ populations live. The UN Security Council has not been successful, despite efforts by US and UK, to adopt a binding resolution on the Ukraine-Russia war. 

As for China, the draft decision it faces, however, is novel. It pertains to the human rights situation of Uyghur population, and the proposal contained therein seeks to discuss this situation at the 52nd session of HRC in February-March 2023. An intention behind this move appears to put China on notice (provided that the draft decision is adopted) that it is next in line for inclusion on HRC agenda.

An important development relating to the United Nations, especially since the end of the Cold War, was the increasing assertion of authority by the UN Security Council over matters, which traditionally fell within the mandates of other UN bodies such as General Assembly (some call it ‘usurpation’ of power). Nevertheless, the projection of a threat to international peace and security, potential or real, arising from such matters was used as justification for them to be taken up in the Security Council (subject, of course, to the interests and priorities of veto-wielding 5 permanent members of SC). 

With the current stalemate in the Security Council over Ukraine-Russia war, resolutions concerning Russia in relation to war in Ukraine have been adopted by the UN General Assembly. In April 2022 a resolution passed by UNGA suspended Russia from HRC membership.  With a draft resolution now presented to the HRC, there is a likely prospect of the resolution repeating the same pattern of voting as observed at UNGA. There is a proviso, however: that is, if the draft resolution is ‘sustained’ by Co-sponsors or unless radical changes take place in the known stances of some member states.

China, on the other hand, has used a variety of strategies when it comes to draft resolutions or draft decisions where Chinese interests are seriously at stake. This ranges from raising rules of procedure-related issues, presenting a procedural motion of No-Action (which means, if passed, the draft resolution or draft decision doesn’t proceed to substantive consideration), proposing amendments to a draft resolution from the floor, to calling for specific paragraphs to be put to vote, and requesting vote on the draft resolution or draft decision as a whole. 
The practice of resorting to No-Action motions which dogged the work of HRC’s predecessor, CHR) is no more prevalent in HRC. When operationalising the HRC in 2006, the predominant position which manifested the commitment of HRC membership was that HRC should be able to consider HR concerns and issues, unconstrained by any efforts aimed at thwarting discussion and consideration. Nevertheless, there are still rules of procedure that bear on the work and conduct of business of the HRC. 

The draft decision on China, if it comes up for consideration by the Council, would test exactly this particular commitment of HRC to be open to discussing and considering HR concerns, not precluding them therefrom. It would be interesting to see how HRC members, at this current session, would respond to the procedural proposal contained in the draft decision which calls for a discussion on HR situation of Uyghur population at the next session of the Council. Here again the same proviso applies: that is, if the draft decision is ‘sustained’ by Co-Sponsors or unless radical changes take place in the known stances of some of the member states.
An important aspect of all three initiatives is that Co-Sponsors or Co-Groups promoting them seem to be by and large the same countries. There are a few states which have joined one initiative but have not signed on to the other. There may be political, strategic or other reasons for the decisions they have made. The field is still evolving, though.

Marshall Islands, for instance, has signed on to all three initiatives but Turkiye has joined the initiatives on Sri Lanka and China but not the initiative on Russia. However, Turkiye is not a member of the Human Rights Council this year. 

What does it mean for Sri Lanka?

First, the consideration of ‘country’s situation’ this time may be overshadowed by other developments including the initiatives on China and Russia. In effect, the country has now become the routine for HRC thrusting itself deeper into the accountability question, with new allegations of violations added at the end of each resolution cycle (2021: forced cremation of dead bodies of Covid-19 victims, and 2022: ‘economic crimes’). If the draft resolution on Sri Lanka presented to the HRC at the ongoing session is adopted in toto, there will be an ‘extended and reinforced’ institutionalised evidence-gathering process within OHCHR on alleged violations of human rights and humanitarian law. Second, the initiatives on China and Russia would only keep the two countries busy protecting their own interests more than trying to help any other country. 

They may possibly lobby some members of HRC to reject any draft resolution or draft decision that is focussed on country-specific situations, arguing that addressing country-specific situations only leads to politicisation of HRC. It is hardly conceivable, however, that they would seek to spend their political capital (or whatever is left of it) on specifically canvassing in favour of another country. Third, an important aspect to be noted is that these initiatives have made a part of Sri Lanka’s “like-minded group” effectively ‘like-situated’ in terms of the international exposure they receive for alleged violations of human rights and humanitarian law. The Late Foreign Minister Lakshman Kadirgamar, referring to another group of countries that faced international censure during his time, used to advise Sri Lanka Foreign Service Officers that it was not the basket that Sri Lanka should get into. 
This analysis, however, is not a commentary on the merits of these initiatives or related developments. The primary responsibility to look into ‘merits’ of concerns relating to a country lies with the country itself. But ‘looking into’ merits is an objective task, and it takes independent and credible institutions, empowered by law and predictably and adequately resourced, to do it. Now that these initiatives are before the HRC, it is left to the Council to consider them as appropriate. An important takeaway for countries that complain of a lack of objectivity on the part of HRC/OHCHR or any other International entity is to ensure that such countries have independent processes and mechanisms that can be trusted for objectivity and that their findings, directives, and decisions are fully respected in law and practice. 

It’s a common occurrence when a developing country is faced with a country-specific draft resolution at HRC, that the country concerned seeks the support of the Non-Aligned Movement (NAM) to defeat the draft resolution on the basis that it violates the principles of sovereignty and non-interference. It is often the case, however, that NAM countries that are members of HRC decide their voting preferences based on their own interests. Getting NAM countries to vote en bloc against draft resolutions on country-specific situations has not succeeded particularly since the end of the Cold War. They join consensus at a NAM summit in adopting its outcome document, but official notes expressing reservations on specific paragraphs contained in the outcome document relating to the human rights and other situations of some countries follow immediately thereafter. 

It is yet not clear if China would be able to galvanize opposition to the draft decision, if it comes up for vote, using NAM as a platform, or by lobbying member states of HRC directly, in its favour. It enjoys political capital in some countries that are members of the HRC, though.