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ABSTRACT
In recent years, the United Kingdom’s influence in multilateral human rights diplomacy has stemmed from its ability to advance its own priorities independently while contemporaneously shaping the collective concerns championed by the European Union. This paper explores the ways in which Brexit may change this state of play. Based on analysis of contributions made at the interactive dialogue sessions at the United Nations Human Rights Council, the paper identifies varying concerns of the United Kingdom and European Union, shedding light on a series of significant gaps that, unless addressed, will exist in Britain’s international human rights diplomacy post-Brexit.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes on contributors
Rhona Smith is Professor of International Human Rights at Newcastle Law School.
Conall Mallory is a Lecturer at Newcastle Law School.
Sean Molloy is a Research Associate at Newcastle Law School.
Notes
1 Jan Wouters and Katrien Meuwissen, ‘The European Union at the UN Human Rights Council: Multilateral Human Rights Protection Coming of Age?’ (working paper no. 126, Leuven Centre for Global Governance Studies, 2013).
2 Dzidek Kędzia, Michael O’Flaherty, and George Ulrich, Report from the High-level Workshop on Human Rights Diplomacy, held in Venice, 30–31 January 2009.
3 Yuchao Zhu, ‘China and International “Human Rights Diplomacy”’, China: An International Journal 9, no. 1 (2011): 1.
4 Sandy Vogelgesang, ‘Diplomacy of Human Rights’, International Studies Quarterly 23, no. 2 (1979): 219.
5 See, for example, Foreign & Commonwealth Office [FCO hereinafter], Human Rights & Democracy: The 2015 Foreign & Commonwealth Office Report (2016).
6 United Nations, The Atlantic Charter, 14 August 1941, especially fifth and sixth iterations.
7 The Royal Institute of International Affairs, United Nations Documents 1941–1945 (1947), 9–11 (The Atlantic Charter and St James’ Declaration).
8 Ibid., St James’ Declaration, Resolution 3.
9 United Nations, The Yearbook Of The United Nations, 1946–47 (1947), (Part 1: The United Nations. Section 1: Origin and Evolution).
10 See United Nations, Documents of the United Nations Conference On International Organization, San Francisco (1945) Volume III, Dumbarton Oaks Proposals, Preamble.
11 Comprising the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the implementation mechanisms.
12 Dag Hammarskjöld Library, Drafting of the Universal Declaration of Human Rights, http://research.un.org/en/undhr/draftingcommittee (accessed May 29, 2019).
13 The UK was a member of the Commission during the following periods: 1947–1978, 1980–1990, 1992–2006. As for its key Sub-Commission on the Promotion and Protection of Human Rights, Francoise Jane Hampson was a UK member.
14 The UK has ratified seven of the nine designated core UN human rights treaties, accepts three inquiry processes and one individual communication process.
15 The Human Rights Act 1998 gives further effect in national laws to most provisions of the Council of Europe’s European Convention on Human Rights.
16 Almost all former colonies have written constitutions (only New Zealand like the UK itself has no written constitution) with most acknowledging human rights.
17 There is now a joint parliamentary select committee on human rights, see https://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/ (accessed May 29, 2019).
18 See FCO, United Kingdom Mission to the United Nations, https://www.gov.uk/world/organisations/uk-mission-to-the-united-nations-geneva (accessed May 29, 2019).
19 Sir Jeremy Greenstock, ‘Written evidence’, in Soft Power and the UK’s Influence Committee Oral and Written Evidence – Volume 1 (14 Aug. 2013).
20 FCO, Business Plan 2011–2015, Foreign and Commonwealth Office, 1 (May 2011).
21 FCO, Corporate Report, Foreign and Commonwealth Office Single Departmental Plan, 2018, in particular and 2.1; FCO Priorities 2017–2018 and 2.2 ‘Champion Democracy and Human Rights’.
22 European Council, Protection and Promotion of Human Rights, https://www.consilium.europa.eu/en/policies/human-rights/ (accessed May 29, 2019).
23 Article 21.1 European Union, Treaty on European Union (Consolidated Version), Treaty of Maastricht, 7 February 1992, Official Journal of the European Communities C 325/5; 24 December 2002, Article 34.1. See further, Annabel Egan and Laurent Pech, ‘Respect for Human Rights as a general objective of the EU’s External Action’, in Research Handbook on EU Law and Human Rights’, ed. Sionaidh Douglas-Scott and Nicholas Hatzis (Cheltenham: Edward Elgar Publishing Limited, 2017).
24 The Council of the European Union, EU Annual Report on Human Rights and Democracy in the World (2017).
25 The Council of the European Union, EU Strategic Framework and Action Plan on Human Rights and Democracy (2012).
26 Gjovalin Macaj and Joachim A. Koops, ‘Inconvenient Multilateralism: The Challenges of the EU as a player in the United Nations Human Rights Council’, in The EU as a ‘Global Player’ in Human Rights, ed. Jan E. Wetzel (London: Routledge, 2011).
27 Ibid., 80.
28 Karen E. Smith, ‘The European Union at the Human Rights Council: Speaking with One Voice But Having Little Influence’, Journal of European Public Policy 17, no 2 (2010).
29 Egan and Pech, supra note 23, 247.
30 The Council of Europe (2012), supra note 25.
31 Egan and Pech, ‘Respect for Human Rights’, 256.
32 European Commission, Communication from the Commission to the Council and the European Parliament on the European Union and the United Nations: The Choice of Multilateralism (2003).
33 A/HRC/RES/5/1, rule 7(a).
34 Wouters and Katrien, ‘The European Union at the UN Human Rights Council’, 7.
35 Ibid.
36 Treaty on European Union, Treaty on European Union (Consolidated Version), Article 34.1.
37 Egan and Pech, ‘Respect for Human Rights’, 248.
38 FCO, UN Human Rights Council: United Kingdom 2014–2016 candidate, 4, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/142894/UN_HRC_-_UK_Candidiacy_2014.pdf (accessed May 29, 2019).
39 Membership of the Council is fixed in term for a period of 3 years with states eligible to serve a maximum of two consecutive terms.
40 The UK was an initial member from 2006–2008. It was then re-elected 2009–2011, before serving 2014–2016 and 2017–2019.
41 The terminology of ‘leader’, ‘global player’ and ‘champion’ is used interchangeably in order to refer to the contributions that the UK can make in terms of its human rights diplomacy. This is to be distinguished from the wider perception of the UK’s human rights record, which traditionally and currently has remained questionable.
42 See Oliver P. Richmond, The Transformation of Peace (Basingstoke: Palgrave Macmillan, 2015); Oliver P. Richmond, A Post-liberal Peace (London: Routledge, 2011).
43 UN General Assembly, Human Rights Council: Resolution/Adopted by the General Assembly, 3 April 2006, A/Res/60/251.
44 Paras 3 and 5, GA Res. 60/251.
45 Para. 5(e), GA Res.60/251.
46 Para. 6, GA Res.60/251.
47 Special Procedures were reviewed by the Human Rights Council and strengthened under Resolution 5/1.
48 For example, the appointment of the Occupied Palestinian Territories divided the Council in 2014 and 2016.
49 See Office of the High Commissioner for Human Rights (OHCHR), Manual of the United Nations Human Rights Special Procedures (2008), https://www2.ohchr.org/english/bodies/chr/special/manual.htm (accessed May 29, 2019).
50 For example, poverty, internally displaced persons, trafficking, privacy, Iran.
51 The Special Rapporteur on Trafficking in persons especially women and children participated in an open debate in the Security Council in June 2016 on conflict-related sexual violence. See Report of the twenty-first annual meeting of special rapporteurs, representatives, independent experts and working groups of the Special Procedures of the Human Rights Council, including updated information on the Special Procedures Annual Report, UN Doc A/HRC/34/34, para 32.
52 For example, in June 2017, the UN Special Rapporteurs on the rights of indigenous peoples (Victoria Tauli Corpuz), on human rights defenders (Michel Forst) and on the environment (John Knox) joined with the IACHR Rapporteur on Indigenous Peoples (Francisco Jose Eguiguren Praeli) to denounce attacks on indigenous and environmental rights in Brazil. See OHCHR, Indigenous and environmental rights under attack in Brazil, UN and Inter-American experts warn, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21704&LangID=E (accessed May 29, 2019).
53 With Country mandates, the state under review always has the opportunity to respond to the report tabled. Note that only five of the twelve mandates currently have access to visit the state under review.
54 For example, Occupied Palestinian territories, Democratic Peoples Republic of Korea, Freedom of Expression, and Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity.
55 Hilary Charlesworth and Emma Larking, Human Rights and The Universal Periodic Review: Rituals And Ritualism (Cambridge: Cambridge University Press, 2015).
56 For instance, scholars such as Upton commend the decision to both keep and enhance NGO participation (Helen Upton, ‘The Human Rights Council: First Impressions and Future Challenges’, Human Rights Law Review 7, no. 1 (2011): 32).
57 Claire Callejon, ‘Developments at the Human Rights Council in 2007: A Reflection of Its Ambivalence’, Human Rights Law Review 8 (2008): 339.
58 Note that at the time of conducting the empirical research, the 39th HRC Session Report was not available. Thus, HRC Session 39 does not form part of this study.
59 See, for example, the Universal Rights Group Geneva’s Portal on HRC Session Reports: https://www.universal-rights.org/category/urg-human-rights-council-reports/ (accessed May 29, 2019).
60 HRC sessions 31, 34 and 37.
61 Ibid.
62 See, for discussion, Todd Landman, ‘Quantitative Analysis’, in Research Methods in Human Rights, ed. Lee McConnell and Rhona Smith (London: Routledge, 2018).
63 Cluster 1 includes HRC sessions 3, 4, and 5; cluster 2 includes HRC sessions 15, 16, and 17; cluster 3 includes HRC sessions 26, 27, and 28; and cluster 4 includes HRC sessions 35, 36, and 37.
64 Pillars established by the treaty of Maastricht and abolished by the Lisbon treaty. The Lisbon treaty established the EU with a single legal personality (Article 24 TEU) ensuring its distinct international legal personality.
65 FCO, Human Rights and Democracy Report (2017). See also FCO, Corporate Report Human Rights Priority Countries: Human Rights Minister Gives Update (7 December 2018).
66 Myanmar/Burma, Eritrea, Iran, Occupied Palestinian Territories, CAR, Somalia, Sudan, Syria and DPRK. Only Cambodia, Mali and Belarus have country mandates but do not appear on the FCO priority countries.
67 Ibid., FCO (2017).
68 Note the EU also operates a system of bilateral human rights dialogues with a long list of countries – see EU guidelines on human rights dialogues, https://eeas.europa.eu/topics/human-rights-democracy_en (accessed May 29, 2019).
69 Delegation of the European Union to the UN and other international Organisations in Geneva, EU Priorities for the 40th Session of the Human Rights Council (2019).
70 With Japan, EU pushed for HRC res. 37/28, which extended the mandate of the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea.
71 It is, however, noteworthy that these are relatively recent mandates with only 2 IDs held with these relatively recent mandate holders up until and including the 38th HRC session.
72 FCO Update (2018), Corporate Report Human Rights Priority Countries.
73 See infra sections 4.2.2.2 and 4.2.2.3., on collective and group rights.
74 FCO Update (2018), Corporate Report Human Rights Priority Countries.
75 See, for example, UK, Human Rights Council – 11th Session, Statement for the Interactive Dialogue With The Special Rapporteur on Freedom of Opinion and Expression and The Special Rapporteur on the Right to Health (7 June 2009).
76 UK, Human Rights Council – 23rd Session, Clustered Interactive Dialogue with Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Dr Christof Heyns and Special Rapporteur on Internally Displaced People, Dr Chaloka Beyani (29 May 2013).
77 Interactive dialogue with the Special Rapporteur on the situation of human rights in Iran – Asma Jahangir 13 March 2017.
78 Cambodia, Mali and Belarus have country mandates but do not appear on the FCO priority countries, all other country mandates are listed as UK priority countries.
79 See, for example, UK Mission to the United Nations Geneva, Human Rights Council 37: Explanation of Votes on Resolutions on Israel and The Occupied Palestinian Territories (23 March 2018).
80 Commission resolution 2004/82 ‘Decides to appoint an independent expert to provide backing for the Government of Burundi in its efforts to improve the human rights situation’. The mandate ended with the establishment of the Independent National Commission of Human Rights (INCHR) in Burundi in accordance with Council resolution 9/19, which decided ‘to extend the mandate of the independent expert until an independent national human rights commission has been established’.
81 See 24th special session of the Human Rights Council on preventing further deterioration of the human rights situation in Burundi – 17 December 2015.
82 See, for instance, UK HRC 38 – statement at 38th Human Rights Council Session June 2018, https://www.gov.uk/government/news/human-rights-council-38-human-rights-in-burundi (accessed May 29, 2019). The Human Rights Council established the Commission of Inquiry on Burundi through resolution 33/24 of 30 September 2016. Its mandate was renewed twice, each time for one additional year by resolution 36/19 adopted on 4 October 2017 and by resolution 39/14 adopted on 28 September 2018.
83 See Statement on Visit to the United Kingdom, by Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23881&LangID=E (accessed May 29, 2019).
84 See Report of the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes on his mission to the United Kingdom of Great Britain and Northern Ireland, A/Hrc/36/41/Add.1
85 Disability Discrimination Act 1995 (now subsumed by the Equality Act 2010).
86 UN General Assembly, Convention on the Rights of Persons with Disabilities: Resolution/Adopted by the General Assembly, 24 January 2007, A/Res/61/106, which is the first human rights treaty the EU ratified.
87 37th HRC Session.
88 Ibid.
89 38th HRC Session.
90 UK, HRC session 38 – Statement for the Working Group on discrimination against women and the Special Rapporteur on trafficking in persons, especially women and children (20 June 2018).
91 UK, HRC 38th Session, Statement for the Interactive Dialogue with the Special Rapporteur on the Right to Education (18 June 2018).
92 22nd Session 25th February to 22nd March, 2013 to 27th Session 8–26 September, 2014.
93 23rd and 26th HRC Sessions.
94 22nd and 24th HRC Sessions.
95 22nd and 25th HRC Sessions.
96 23rd and 26th HRC Sessions.
97 23rd and 27th HRC Sessions.
98 22nd and 24th HRC Sessions.
99 26th HRC Session.
100 23rd HRC Session.
101 23rd and 25th HRC Sessions.
102 22nd and 24th HRC Sessions.
103 23rd and 26th HRC Sessions.
104 23rd and 26th HRC Sessions.
105 In 2005, the UN Commission on Human Rights adopted resolution E/CN.4/RES/2005/69 requesting ‘Secretary-General to appoint a special representative on the issue of human rights and transnational corporations and other business enterprises’. This subsequently led to A/HRC/Res/8/7, which requested the Special Representative to operationalize the Protect, Respect and Remedy Framework proposed by the Special Representative in his final report under the 2005 mandate. The result was the adoption of the United Nations Guiding Principles on Business and Human Rights.
106 The Political Declaration states that: ‘The Union and United Kingdom are determined to work together to safeguard the rules-based international order, the rule of law and promotion of democracy, and high standards of free and fair trade and workers’ rights, consumer and environmental protection, and cooperation against internal and external threats to their values and interests’ (see UK Government, Political Declaration Setting out the Framework for the Future Relationship Between the European Union and the United Kingdom, para. 2 (2018)).
107 Ibid., Para 6: reaffirms a commitment to multilateralism.
108 Ibid., para 2. see also para 92.
109 Jess Gifkins, Samuel Jarvis and Jason Ralph, ‘Global Britain in the United Nations’, United Nations Association – UK, 3 (2019).
110 Brian Gowan, ‘With China ascendant, Britain’s ability to shape human rights at the UN now looks uncertain (10th May 2018)’, London School of Economics Blogpost, https://blogs.lse.ac.uk/brexit/2018/05/10/with-china-ascendant-britains-ability-to-shape-human-rights-at-the-un-now-looks-uncertain/ (accessed, May 29, 2019).
111 See, for example, Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association on His Follow-up Mission to the United Kingdom of Great Britain and Northern Ireland, A/HRC/35/28/Add.1.
112 See Danish Institute for Human Rights, Human Rights and the 2030 Agenda for Sustainable Development: Lessons Learned and Next Steps (Denmark: The Danish Institute of Human Rights, 2018).
113 UN General Assembly, Vienna Declaration and Programme of Action, 12 July 1993, A/CONF.157/23.
114 His final country report is available as A/HRC/41/39/Add.1, published 22 May 2019. See, for responses, Carly Read, ‘Brexit-bashing UN Diplomat Blasts Britain as “Mean-spirited and Callous” in Welfare Rant’, Daily Express, November 17, 2018, https://www.express.co.uk/news/politics/1046677/brexit-news-United-nations-Philip-Alston-poverty-theresa-may (accessed May 29, 2019); Leo McKinstry, ‘Anti-austerity Rant of UN Envoy Who Compares ‘Mean’ Britain to Communist China is Another Demolition Job on the UK … Funded With Our Own Cash!’, Mail Online, November 17, 2018, https://www.dailymail.co.uk/debate/article-6399879/Anti-austerity-rant-envoy-compares-mean-Britain-communist-China.html (accessed May 29, 2019).