© Nova univerza, 2018
DIGNIT AS
Revija za človekove pravice
Slovenian journal of human rights
ISSN 1408-9653
Diplomatic manoeuvres involved in the creation of the United Nations Human
Rights Council
Michael C. Ogwezzy
Article information:
To cite this document:
Ogwezzy, M. C. (2018). Diplomatic manoeuvres involved in the creation of the 
United Nations Human Rights Council, Dignitas, št. 53/54, str. 152-171.
Permanent link to this doument:
https://doi.org/ 10.31601/dgnt/53/54-9
Created on: 07. 12. 2018
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DIGNITAS n Teorija mednarodnega prava in človekovih pravic
Introduction
The UN Human Rights Commission (‘the Commission’) was the 
primary intergovernmental policymaking body under the UN Sys-
tem saddled with the responsibility for promoting human rights is-
sues before it was replaced by the UN Human Rights Council (‘the 
Council’) in 2006.
1
 Created in 1946 as a subsidiary body of the UN 
Economic and Social Council (‘ECOSOC’),
2
 the Commission’s ini-
tial mandate was to establish international human rights standards 
and develop an international bill of rights. One of the Commission’s 
notable successes was establishing the Universal Declaration of Hu-
man Rights, adopted by the UN General Assembly on 10 December 
1948.
3
 During its tenure, the Commission played a key role in de-
veloping a comprehensive body of human rights laws and regula-
tions.
4
 Over time, its work evolved to address specific human rights 
violations and complaints as well as broader human rights issues. 
It developed a system of special procedures to monitor, analyse 
and report on human rights violations. The procedures addressed 
country-specific human rights violations, as well as ‘thematic’ cross-
cutting human rights abuses such as racial discrimination, religious 
intolerance, and denial of freedom of expression.
5
1 
Luisa Blanchfield, “CRS Report for Congress: The United Nations Human Rights Council” Congres-
sional Research Service Order Code RL33608 8 August 2006, at 1-2
2 
The ECOSOC is a principal organ of the United Nations that coordinates the economic and social 
work of the specialised UN agencies. It is composed of 54 member governments elected for three-
year terms by the UN General Assembly.
3 
The Universal Declaration of Human Rights was adopted by General Assembly Resolution 217 A (III), 
10 December 1948. Available at http://www.un.org/Overview/rights.html Visited 18 January 2012.
4 
This includes the International Covenant on Civil and Political Rights, which entered into force on 23 
March 1976, and the International Covenant on Economic, Social and Cultural Rights, which entered 
into force on 3 January 1976. The United States signed both treaties on 5 October 1977 and ratified 
the Covenant on Civil and Political Rights on 8 June 1992.
5 
See H.J. Steiner and P. Alston, International Human Rights in Context: Law Politics and Morals, 2nd 
edn. Oxford: Oxford University Press, 2000, at 600.
Diplomatic manoeuvres involved  
in the creation of the United Nations 
Human
hael C. Ogwezzy
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DIGNITAS n Diplomatic manoeuvres involved in the creation of the United Nations ...
In its last years, and especially since 1998, these controversies 
plagued the Commission’s operations and resulted in a rancor-
ous debate among governments, often reflecting a North-South 
split.
6
 Controversy developed over the human rights records of 
Commission members. Countries widely perceived as systematic 
abusers of human rights were elected as members.
7
 In 2001, Sudan 
was elected, despite being a country broadly criticised by govern-
ments and human rights groups for ethnic cleansing in the Dar-
fur region. Sudan was re-elected in 2004, prompting outrage from 
human rights organisations and causing the United States’ diplo-
mats to walk out of the Commission chamber in protest.
8
 These 
instances significantly affected the Commission’s credibility. It 
was alleged that countries had used their membership to deflect 
attention from their own human rights violations by questioning 
the records of others. Some members were accused of bloc voting 
and excessive procedural manipulation to prevent debate on their 
human rights abuses.
9
 In 2005, the collective impact of these con-
troversies led UN Secretary-General Kofi Annan to propose the 
idea of a new and smaller Council to replace the Commission. On 
15 March 2006, the UN General Assembly approved a resolution 
to dissolve the Commission and create the Council in its place. 
The Commission held its final meeting in Geneva, Switzerland, on 
16 June 2006, where among other actions it transferred its reports 
and responsibilities to the new Council.
6 
Michael Jordan, “New Calls for Reform of UN Rights Commission; Cuba’s Re-Election Last Week to 
the Commission on Human Rights is Drawing Criticism from Rights Groups”, Christian Science Moni-
tor Boston, 7 May 2003, 7. Such accusations are clearly acknowledged in the wording of the resolution 
establishing the new Council, in which the General Assembly explicitly recognises the importance 
of “the elimination of double standards and politicization”: Human Rights Council, GA Res 60/251, 
UN GAOR, 60th Session, 72nd Plenary Meeting, Agenda Items 46 and 120, UN Doc A/RES/60/251 of 
3 April 2006 at 2. (see Philip Alston, op. cit.)
7 
See the report of the Secretary-General of the UN, “In Larger freedom: Towards Development, Secu-
rity and Human Rights for All”, 24 March 2005, at 45: “Yet the Commission’s capacity to perform its 
tasks has been increasingly undermined by its declining credibility and professionalism. In particular, 
States have sought membership of the Commission not to strengthen human rights but to protect 
themselves against criticism or to criticize others. As a result, a credibility deficit has developed, 
which casts a shadow on the reputation of the United Nations system as a whole”. The composition 
of the Commission was of 53 states representatives, elected by the ECOSOC for three renewable 
years. Quite often states with highly negative outcomes regarding human rights were sitting on the 
Commission.
8 
Mark Lagon, “Deputy Assistant Secretary of State for International Organization Affairs, U.S. Depart-
ment of State”, press briefing of 25 April 2006
9 
“A New Chapter for Human Rights: A Handbook on Issues of Transition from the Commission on 
Human Rights to the Human Rights Council”, International Service for Human Rights and Friedrich-
Ebert-Stiftung, June 2006
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DIGNITAS n Teorija mednarodnega prava in človekovih pravic
Nature, Functions and Achievements of the UN 
Commission on Human Rights
The establishment of the Commission
10
 was mandated by the 
Charter of the United Nations.
11
 After its first session in 1946, its 
many achievements included the drafting of the Universal Decla-
ration of Human Rights (‘UDHR’) and a plethora of subsequent 
human rights treaties.
12
 It was one of the six commissions estab-
lished by Economic and Social Council (‘ECOSOC’) and under its 
terms of reference the commission was directed to prepare recom-
mendations and reports on: an International Bill of Human Rights; 
International Conventions or Declarations on Civil Liberties, the 
status of women, freedom of information and similar other mat-
ters; the protection of minorities; the prevention of discrimination 
on the basis of race, sex, language or religion; and other matters 
relating to human rights.
13
 The UN Commission on Human Rights 
was an inter-governmental body consisting of government rep-
resentatives
14
 and, having grown in size, it eventually consisted 
of 53 members, elected on a rotating basis for three-year terms 
by the ECOSOC
15
 It met annually for six weeks in Geneva from 
mid-March to late April, although after 1992 there were also provi-
sions for emergency sessions before it was wound up in 2006.
16
 
In a UN report, the Commission’s functions was described thus: 
It is entrusted with promoting respect for human rights globally, 
fostering international cooperation in human rights, responding 
to violations in specific countries and assisting countries in build-
10 
Philip Alston, “Reconceiving the UN Human Rights Regime: Challenges Confronting the New UN 
Human Rights Council” Centre for Human Rights and Global Justice, Working Paper Number 4, 2006 
at 2-3
11 
See Article 68 of the “Charter of the United Nations and the Statutes of the International Court of Ju-
stice”, Department of Public Information DPI/511 Reprint, New York: United Nations, October, 1997
12 
Universal Declaration of Human Rights, GA Res 217A, UN GAOR, 3rd Session, 183rd Plenary Mee-
ting, UN Doc A/RES/217A (III) (10 December 1948). For a detailed history of the Commission, see 
Philip Alston, “The Commission on Human Rights” in Philip Alston (ed.), The United Nations and 
Human Rights: A Critical Appraisal (1992) 126; Jean-Bernard Marie, La Commission des droits de 
l’homme de l’ONU (1975); Howard Tolley, The UN Commission on Human Rights (1987)
13 
S.P. Gupta, International Law and Human Rights, 1st edn, Faridabad (Haryana): Allahabad Law 
Agency, 2009 at 582
14 
A. Maheshwari and M.B. Bhagwat, Understanding Human Rights, 8th edn. Mumbai: Vipul Prakashan 
, 2007 at 86 
15 
The Commission began with a membership of 18 in 1946 and was subsequently expanded to 21 
in 1962, 32 in 1967, 43 in 1980 and 53 in 1992. For details of its membership over time, see Office 
of the United Nations High Commissioner for Human Rights, Membership (2006). Available onli-
ne at http://www.ohchr.org/english/bodies/chr/membership.htm. Visited 20 January 2012
16 
H.J. Steiner and P. Alston, op. cit.,
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DIGNITAS n Diplomatic manoeuvres involved in the creation of the United Nations ...
ing their human rights capacity.
17
 Its tasks of fostering coopera-
tion and building capacity were uncontroversial at least in prin-
ciple, although not always in practice. In contrast, its mandate to 
promote global respect for human rights and to respond to rights 
violations was intrinsically controversial because it required it to 
monitor and call to account many of the countries that sat as mem-
bers of the Commission. While many critics called for a conciliato-
ry approach to avoid confrontation with governments, others im-
pugned its credibility precisely because it had failed to condemn 
governments they considered to be responsible for egregious hu-
man rights violations.
18
At the Commission’s 2004 session, the US delegation took up 
this theme and insisted that “this important body should not be al-
lowed to become a protected sanctuary for human rights violators 
who aim to pervert and distort its work”. It argued that only “real 
democracies” should enjoy the privilege of membership.
19
Nature and Functions of the United Nations 
Human Rights Council
The Human Rights Council is a new body and the most impor-
tant of the UN’s human rights institutions. In September 2005, a 
summit of the United Nations member states agreed to abolish 
the Commission on Human Rights and replace it with a Human 
Rights Council.
20
 On 15 March 2006, the United Nations General 
Assembly approved the creation of the Human Rights Council, 
whose mandate is to promote universal respect for human rights 
and address situations of violations of human rights. In operation 
since June 2006, the Council is supposed to address the Commis-
sion’s shortcomings with a slightly more rigorous election proce-
17 
Kofi Annan, High-Level Panel on Threats, Challenges and Change, A More Secure World Our Shared 
Responsibility, UN Doc A/59/565 (2 December, 2004) at 282 (“Report of the High Level Panel”)
18 
See the Editorial “Changing the UN”, The Washington Post (Washington DC, US), 3 May 2003, A22; 
Colum Lynch, “US Protests Sudan’s Election to Human Rights Panel”, The Washington Post Washing-
ton DC., 5 May 2004, A 30; also see Michael Coultan, “Zimbabwe’s UN Rights Role Raises Ire”, The Age 
(Melbourne, Australia), 29 April 2005, at 11
19 
Ambassador Richard Williamson, US Representative to the United Nations for Special Political Affa-
irs, US Government Delegation to the 60th Commission on Human Rights, Item 4: Report of the Uni-
ted Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Hu-
man Rights (2004). Available online at <http://www.humanrightsusa. net/statements/0319Williamson.
htm Visited 22 January 2012
20 
Karen E. Smith, “The European Union and the Review of the Human Rights Council”, EXPO/B/
DROI/2010/06 /February/ 2011 at 4. Available online at http://www.europarl.europa.eu/activities/
committees/studies.do?language=EN Visited 23 January 2012
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DIGNITAS n Teorija mednarodnega prava in človekovih pravic
dure and a Universal Periodic Review of the human rights records 
of all UN member states.
Diplomatic Manoeuvres in Creation of the UN 
Human Rights Council (HRC)
In order to illustrate the many hurdles in the way of the new 
HRC, this paper will discuss the necessary open and secret diplo-
matic efforts made by the United Nations and the Swiss govern-
ment to bring about the needed changes and the creation of the 
new Human Rights Council of the United Nations with the aim 
of remedying the defects of the defunct Commission in order to 
create enabling opportunities for enhancing the protection of hu-
man rights among nations.
Open Diplomatic Manoeuvres by the United 
Nations Hierarchy
Creating the HRC was an arduous and complex process that 
involved several diplomatic manoeuvres and intrigues that culmi-
nated in the spring of 2006, but whose first stone was laid more 
than a year earlier, in December 2004, with the publication of the 
report by the High Level Panel on Threats, Challenges and Change 
set up by UN Secretary General Kofi Annan. Previously, the ero-
sion of the Commission’s credibility as a result of the poor human 
rights records of its members, many of whom sought member-
ship to protect themselves against scrutiny, led to much talk about 
the need for reform, but no action.
21
 The report by the High Level 
Panel was the first serious attempt by the UN itself to shape such 
an aspiration by substituting the Commission with a new Human 
Rights Council and solidly place the reform of the UN human 
rights system at the forefront of the world body’s agenda.
22
Although the High Level Panel report included specific propos-
als on the Human Rights Council (HRC) such as the establishment 
of universal membership for the new Council, the compulsory 
21 
Angel Alonso Arroba, “The New United Nations Human Rights Council: What Has Changed?” De-
mocracy Coalition Project, Washington DC. 2006 Crossroads Vol. 6, No. 2 at 66-86, 68:72
22 
United Nations General Assembly, A More Secure World: Our Shared Responsibility. Report by the 
High-level Panel on Threats, Challenges and Change (UNGA A/59/565), New York, December 2004, 
paras. 285-291
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DIGNITAS n Diplomatic manoeuvres involved in the creation of the United Nations ...
designation of experienced human rights figures as heads of the 
national delegations, the creation of an advisory council of ex-
perts, and the production of annual reports and periodic reviews 
on the situation of human rights worldwide, the report’s defini-
tion of the new body was still vague and envisioned its establish-
ment as a long-term goal. According to Alonso Arroba, it was Kofi 
Annan who set forth a more comprehensive, detailed plan to es-
tablish the HRC in his subsequent document In Larger Freedom, 
published in March 2005. Annan’s proposal was an ambitious one: 
it stipulated a new body that would ideally be a principal organ of 
the UN, or at least a standing subsidiary body of the United Na-
tions General Assembly, with a much smaller number of members 
elected by a two-thirds majority of the United Nations General As-
sembly and abided by the highest human rights standards. His 
proposal also contemplated giving the Council a broader imple-
mentation mandate and means to respond to urgent breaches of 
human rights.
23
Further discussion at the United Nations General Assembly dur-
ing the spring and summer of 2005 paved the way to a progressive 
definition of the characteristics of the new body, following ardu-
ous negotiations brokered by the then United Nations General As-
sembly President, Gabonese Jean Ping. Ping’s effort concentrated 
on producing a final document that would translate Annan’s blue-
print on security, development and human rights into practical 
reform proposals that could be agreed upon by all UN member 
states. He hoped the final document would be solemnly adopted 
at the World Summit in September 2005, which was to celebrate 
the 60
th
 Anniversary of the United Nations. Ping produced up to 
three drafts of the Outcome Documents for the summit – dated 3 
June, 22 July, and 10 August 2005 – none of which received full en-
dorsement by UN members. The last round of consultations fol-
lowing the 10 August draft document were particularly difficult, 
especially with the arrival in New York of John Bolton, President 
Bush’s recess appointment as US Permanent Representative to 
the UN. Just three weeks before the opening of the World Sum-
mit, Ambassador Bolton opened Pandora’s Box. Bolton’s more 
than 750 edits to the 38-page document circulated by President 
Ping proved to be a real last-minute blow to the delicate consen-
23 
United Nations General Assembly, In Larger Freedom: Towards Development, Security and Human 
Rights for All Report of the Secretary-General (A/59/2005), New York, March 2005, para.183)
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DIGNITAS n Teorija mednarodnega prava in človekovih pravic
sus brokered during the previous months, reopening the negotia-
tions and creating an opportunity for spoilers like Algeria, Cuba, 
Egypt, India, Iran, Pakistan and Venezuela to undermine deeper 
reforms that would have run against the interests of their govern-
ments. Bolton’s manoeuvre cast a shadow on his real commitment 
to work in favour of improving the UN.
24
 His polemic deletion of 
all references to the Millennium Development Goals (MDGs), for 
instance, is hard to explain. It causes suspicion about the agenda 
of a man who once said that there is no such thing as the United 
Nations and the collapse of the top ten stories of the UN Secretary 
building in New York would not make a bit of difference.
25
The final 2005 World Summit Declaration was agreed to just 
hours before the Summit’s start. Following a frantic final week 
of negotiations, it was a less ambitious document that weakened 
some of the reforms initially envisioned by the UN Secretary 
General with respect to human rights reform; it endorsed the cre-
ation of the HRC. But unlike initially intended, the declaration 
postponed the creation of the new body, tasking the United Na-
tions General Assembly with defining the specific issues of status, 
size, election mechanism, membership criteria, mandate, work-
ing methods and special procedures.
26
 As a consolation prize, the 
Summit agreed to double the budget of the Office of the United 
Nations High Commissioner for Human Rights (‘OHCHR’), which 
has been coordinating human rights activities throughout the UN 
system since its creation in 1993. Other proposed reforms includ-
ed the establishment of a Peace Building Commission, reinforce-
ment of the development agenda and the Millennium Develop-
ment Goals, enhanced counterterrorism efforts, reform of the UN 
management system, and implementation of the responsibility to 
protect doctrine and stronger mechanisms to prevent genocide.
The autumn of 2005 therefore again witnessed frenetic dip-
lomatic activity to define the final parameters of the new HRC. 
Negotiations began in New York in October 2005 under the lead-
ership of Ping’s successor as President of the General Assembly, 
the Swede Jan Eliasson. The process was even more intricate and 
divisive than the one leading to the World Summit, with backstage 
24 
D. Schorr, United Nations Reform in Context, Muscatine: Stanley Foundation, February 2006, at 
10-12 
25 
“Bush Nominates Bolton as U.N. Ambassador”, CNN, 8 March 2005
26 
United Nations General Assembly, World Summit Outcome (A/60/L.1), New York, September 2005, 
paras.157-160)
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DIGNITAS n Diplomatic manoeuvres involved in the creation of the United Nations ...
deals, compromises and manoeuvres making agreement over a 
final text very difficult. Six different drafts were considered dur-
ing the negotiations, which extended over five months and en-
compassed more than 30 rounds of consultations. Many of the 
statements released by various UN Permanent Missions on the 
negotiations and their positions throughout the process reflect 
the complexity of the discussions and the difficulty of reaching a 
compromise on the final text.
27
US Ambassador John Bolton was once more an obstacle to the 
talks, in sharp contrast with the leadership former US-UN repre-
sentatives had usually exerted in such situations, particularly as 
human rights champions since the creation of the UN. To begin 
with, out of the aforementioned 30 plus negotiating sessions over 
the HRC, Bolton only attended one, with Deputy Assistant Sec-
retary of State Mark Lagon and other lower-ranking US Foreign 
Service officials taking his place in a few others and the US chair 
remaining empty at many meetings.
28
 The US Ambassador’s threat 
to withhold US approval of the UN budget unless the UN institu-
tions implemented substantial management reforms coupled with 
proposed US Congressional legislation to condition the payment 
of US dues to the UN on the implementation of reforms, like the 
Hyde
29
 and Coleman Lugar bills
30
 precipitated the budgetary crisis 
and did not help facilitate a favourable negotiation environment at 
the time. Finally, during the final stage of the negotiations in early 
2006, Bolton pressed for the granting of permanent HRC mem-
bership to the five Security Council permanent members, a ter-
rible measure that not only would have further alienated the G-77 
27 
J. Almqvist, The Human Rights Council: A Bold Step towards Effective Rights for All, FRIDE Com-
ment, Madrid: FRIDE, 2006, at 1
28 
Bolton Watch, 2006 Available online at Bolton Watch Blog: http://boltonwatch.tpmcafe.com Visited 
25 January 2012
29 
(H.R. 2745, 2005) The Henry J. Hyde UN Reform Act in 2005, H.R. 2745 passed in the House of 
Representatives with a vote of 221 to 184. It would withhold 50% of US assessed dues to the UN 
regular budget if a series of reforms were not implemented. Specifically, the act states that a UN 
member country would be ineligible for membership on any UN human rights body if it is under 
Security Council sanctions or under UN investigation for human rights abuses. (United States House 
of Representatives legislation related to the funding and reform of the Human Rights Council in the 
109th Congress, 2005)
30 
(S. 1383, 2005) S. 1383 calls for “urgent and essential reform of the United Nations”. It would give 
the President the authority to withhold 50% of US contributions to the United Nations if he determi-
ned that the United Nations was not making adequate progress on reforms. It states, among other 
things, that countries subjected to sanctions by the UN Security Council or under UN investigation 
for human rights violations should be ineligible for Council membership. The bill was introduced 
by Senator Norm Coleman on 12 July 2005 and was referred to the Committee on Foreign Relations. 
(United States legislation related to the funding and reform of the Human Rights Council in the 109th 
Congress, 2005)
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DIGNITAS n Teorija mednarodnega prava in človekovih pravic
against excessive power enjoyed by the so-called P-5, but would 
have also granted unchallenged representation at the Council to 
blatant human rights violators like China and Russia.
31
Following a decisive campaign by human rights groups in the 
United States, it was the direct decision by US Secretary of State Con-
doleezza Rice to become directly involved in the negotiations that 
prevented Bolton from again annihilating the consensus reached 
over the characteristics of the new HRC at the last moment.
32
 Although 
the US Ambassador still compared the proposed HRC to a “caterpil-
lar” while arguing that the US could only accept a “butterfly”,
33
 and 
despite the fact that the United States was one of the only four states 
to vote against the text of the resolution submitted by Eliasson to 
the General Assembly on 24 February (the other three were Israel, 
the Marshall Islands and Palau, with Belarus, Iran and Venezuela ab-
staining), the new Council was finally approved by the General As-
sembly on 15 March 2006, with 170 votes in favour.
Underground/Secret Manoeuvres of the Swiss 
Government (DFA)
This subheading will examine what appears to be under-
ground or secret manoeuvring efforts mainly led by the Swiss 
government’s Department of Foreign Affairs (DFA) in facilitating 
the creation of the United Nations Human Rights Council in 2006. 
Switzerland made frantic efforts towards the creation of this new 
body, which on 19 June 2006 took over from the Human Rights 
Commission in Geneva. If there is one outstanding fact about the 
creation of the new UN Human Rights Council, it is the exception-
al celerity with which the international community acted. Never 
before in the 60-year history of the United Nations had such an 
important organ seen the light of day so swiftly and painlessly.
34
In March 2003 the Head of the Swiss Federal Department of 
Foreign Affairs (DFA), Micheline Calmy-Rey, addressed the 59
th
 
session of the Human Rights Commission. She spoke of the ur-
gent need to reform the Commission and this led to a mandate 
in spring 2003 by the Swiss DFA to Professor Walter Kälin of the 
31 
“A Caterpillar in Lipstick”, The Economist, Editorial, 2 March 2006, at 1
32 
“Better UN Rights Monitor”, Boston Globe, 25 February 2006
33 
The Wrong Approach to Human Rights”, The Economist, Editorial, 2 March 2006, at 2
34 
KOFF Swisspeace, “UN Human Rights Council – Chronicle of a Swiss Diplomatic Initiative” KOFF-
Newsletter No. 46., 1 April 2006, at 6-7
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DIGNITAS n Diplomatic manoeuvres involved in the creation of the United Nations ...
Institute of Public Law, the University of Bern, to investigate the 
possibility of reforming the Commission, which he did in a study 
entitled “Reform of the UN Commission on Human Rights”, where 
the idea of creating a new Human Rights Council appears for the 
first time.
35
Another effort was made in March 2004 whereby Calmy-Rey ad-
dressed the 60
th
 session of the Human Rights Commission and put 
forward some ideas for the creation of a Human Rights Council. In 
the same year in August, Professor Walter Kälin was mandated by 
the Swiss DFA to study a reform programme for the UN Human 
Rights Council and he presented a second study, “Towards a Hu-
man Rights Council: Options and Perspectives”, which proposed 
three possible models for the creation of such a Council, while 
in September 2004 the Kälin study was submitted by Calmy-Rey 
to the Secretary General of the UN and the High Level Panel on 
Threats, Challenges and Change.
36
In November 2004, a Human Rights Council Task Force was cre-
ated within the Swiss DFA. It operated as a work base, a strategic 
‘think-tank’ and a coordination platform between the DFA head 
office and the various Swiss missions abroad, in particular the Per-
manent Missions of New York, Geneva and Brussels. Thereafter, 
on 1 December 2004 the report of the High Level Panel, which 
saw the creation of a Human Rights Council as a long-term option, 
was published.
On 21 March 2005 there was the presentation of the report of 
the UN Secretary-General concerning his project to reform the 
United Nations. This report endorsed the idea of replacing the 
Commission by a Human Rights Council. Between 2 May and 7 
June 2005, Switzerland hosted two seminars in Lausanne to dis-
cuss the creation of a Human Rights Council with all interested 
States. Between 14-16 September 2005 at the World Summit 2005 
(M+5) held at the UN headquarters in New York, an outcome doc-
ument was adopted in which the Heads of State and Government 
asked the President of the General Assembly to organise open and 
transparent negotiations to determine the mandate and organisa-
tional methods of the Human Rights Council. Interestingly, on 3 
35 
Ibid. (My emphasis)
36 
Departament Federal D´Affars Exteriurs, “Creation of a UN Human Rights Council: Course of a 
Diplomatic Initiative for the Creation of a UN Human Rights Council: Historical Background” Do-
cumentation DFA Information, Berne, March, 2006, at 1-4. Available online at www.dfae.admin.ch 
Visited 25 January 2012
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DIGNITAS n Teorija mednarodnega prava in človekovih pravic
October 2005 Switzerland offered the services of Rachel Groux, 
a Swiss human rights expert, to the President of the General As-
sembly, Jan Eliasson to provide inputs for the negotiation strategy 
adopted by the President of the General Assembly on the reforms 
and establishment of the Human Rights Council and on 11 Octo-
ber 2005 the President of the 60
th
 Session of the General Assembly 
appointed the Permanent Representatives of Panama and South 
Africa as co-Presidents to speed up the negotiations and at the 
same time present his full working programme for the reforms. 
This marks the beginning of a period of intense negotiations.
On 3 November 2005, the President of the General Assembly 
presented a document with ‘ways and means’ options for the fu-
ture Human Rights Council on the basis of proposals put forward 
by the States. Again between 24-26 November 2005, Switzerland 
organised a two-day seminar in Geneva for all French-speaking 
States. The aim was to make the delegations aware of the impor-
tance of “International Geneva” and to discuss other points of 
substance. One participant in the seminar was the Personal Ad-
visor to the then President of the General Assembly, Mr. Parfait 
Onanga-Anyanga.
37
At the end of 2005 till January 2006, the deadline proposed 
by the President of the General Assembly for wrapping up the 
negotiations was missed. The delegations with the most extreme 
negotiating positions were not yet ready to make concessions, 
and no solution had been found. On 1 February 2006, the two co-
Presidents put forward a new text suggesting a compromise on a 
number of questions that remained open. Much work was done 
behind the scenes and with constructive proposal put forward 
by Switzerland and several other countries suggesting they were 
ready to be flexible, the text was fairly well received, although cer-
tain differences remained.
On 6 February 2006, the President of the General Assembly took 
personal charge of the negotiating process and began informal bi-
lateral consultations with the various delegations so as to be able to 
put forward a text based on consensus before the end of the month. 
On 23 February 2006 the President Jan Eliasson presented his draft 
37 
On 23 December 2005: approval of the 2006-2007 budget of the UN in New York. The request of the 
High Commissioner for Human Rights, Mrs. Louise Arbour, for an increase in human resources (91 
new posts) as well as for extra funding (an additional USD 86m), is accepted. The Swiss delegation 
in New York was particularly active in the General Assembly Budget Committee in support of this 
objective.
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DIGNITAS n Diplomatic manoeuvres involved in the creation of the United Nations ...
resolution to the General Assembly meeting in a plenary session, 
and the Head of the Swiss Mission in New York began intensive 
lobbying to facilitate the adoption of the text. Finally, on 15 March 
2006 the UN General Assembly adopted the resolution to create a 
Human Rights Council, with its head office in Geneva.
38
Composition, Working Methods and Mandate of 
the Human Rights Council
i. Composition and Membership
The Council is composed of 47 members apportioned by geo-
graphic regions as follows: 13 from African states; 13 from Asian 
states; six from Eastern European states; eight from Latin America 
and the Caribbean states; and seven from Western European and 
other states. Members are elected for a period of three years and 
may not hold a Council seat for more than two consecutive terms. 
If a Council member commits “gross and systematic violations of 
human rights”, the General Assembly may suspend membership 
with a two-thirds vote of members present. All UN member states 
are eligible for Council membership, not only those with a good 
human rights track record or those which have ratified the ma-
jority of international human rights instruments and cooperate 
with respective monitoring mechanisms.
39
 The old Commission 
was composed of 53 member states elected by members of the 
ECOSOC. Countries served three-year terms with no term limits. 
Like the Council, the Commission created a formula to ensure the 
equitable distribution of seats by region.
ii. Mandate
On 15 March 2006, the UN General Assembly passed resolu-
tion A/RES/60/251 which established the Council and outlined its 
38 
On 15 March 2006, 170 of the 191 (now 193) of the UN member states voted in favour of the crea-
tion of a Human Rights Council. Only four states voted against this proposal, while three abstained. 
Switzerland’s strong commitment played a significant part in this development: representatives of 
Switzerland were more involved in both initiation of the concept as well as in the subsequent adop-
ted form of the new Council. (Atelier Bundi Boll, Switzerland Peace and Human Rights Promotion, 
Bern: Federal Department of Foreign Affairs (FDFA) Directorate of Political Affairs DP, June 2007 at 
21)
39 
Daniel Moeckli et al. (eds.), International Human Rights Law, Oxford: Oxford University Press, 2010 
at 394
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DIGNITAS n Teorija mednarodnega prava in človekovih pravic
purpose and responsibilities.
40
 Under the resolution, the Council 
is responsible for “promoting universal respect for the protection 
of all human rights and fundamental freedoms for all, without dis-
tinction of any kind and in a fair and equal manner”. The Coun-
cil will “address situations of violations of human rights, includ-
ing gross and systematic violations, and make recommendations 
thereon”. It will also promote and coordinate the mainstreaming 
of human rights within the UN system. In order to achieve the 
above goals, the Council will undertake a universal periodic re-
view of each UN member state’s fulfilment of its human rights 
obligations and commitments. The review will be a “cooperative 
mechanism” based on dialogue between the reviewers and the 
countries involved. Each member will undergo a periodic review 
during the term of its membership. The Council is tasked with 
developing guidelines for the universal periodic review process 
within one year of its first session.
41
 According to Moeckli et al., it 
has been emphasised that when fulfilling this mandate the Coun-
cil’s work should be based on the principles of transparency, non-
selectivity, inclusiveness and de-politicisation.
42
The resolution also ensures adequate transition of responsibili-
ties from the Commission on Human Rights to the new Council. 
Like the Commission, the Council will continue to collaborate 
with the Office of the High Commissioner for Human Rights (‘OH-
CHR’). It will work to maintain and improve the system of special 
mandates, expert advice, and complaint procedures instituted by 
the Commission. The Council shall also: review all the mandates, 
mechanisms and functions of the Commission within one year of 
its first session; promote human rights education, advisory ser-
vices, technical assistance, and capacity building with relevant 
member states; serve as a forum for dialogue on thematic human 
rights issues and recommend opportunities for the development 
of international human rights law to the UN General Assembly; 
and promote the full implementation of human rights obligations 
by member states, and follow-up on human rights commitments 
from other UN conferences and summits.
43
 In other to discharge 
40 
One hundred and seventy parties voted in favour of the UN General Assembly resolution creating 
the Council, four voted against (Israel, Marshall Islands, Palau, and the United States), and three ab-
stained (Belarus, Iran, and Venezuela).
41 
Departament Federal D´Affars Exteriurs op. cit., at 4
42 
Daniel Moeckli et al. (eds.), loc. cit., at 395
43 
The mandates and responsibilities are drawn from UN document, A/RES/60/251, 15 March 2006.
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DIGNITAS n Diplomatic manoeuvres involved in the creation of the United Nations ...
its mandate, the Council meets regularly throughout the year with 
at least three standard annual sessions. There must be at least ten 
weeks of scheduled sessions to allow the Council to adopt a com-
prehensive approach to human rights and respond effectively to 
human rights situations as they develop. In addition, special ad 
hoc sessions lasting one or two days at a time may be scheduled 
at the request of a Council member that has gathered the support 
of at least one-third of the Council membership.
44
iii. Election to the Council
All UN member states are eligible to run for election to the Coun-
cil. Countries are elected by secret ballot by the General Assem-
bly with an absolute majority (97 out of 192 votes). When voting, 
the resolution instructs countries to consider “the contribution of 
candidates to the promotion and protection of human rights and 
their voluntary pledges and commitments”. Countries submitting 
their names for election must affirm their commitment to human 
rights with written pledges. A key difference between the Council 
and the Commission is the direct election of Council members 
by the UN General Assembly. Under the Commission, candidates 
were first nominated by their regional groups and then the nomi-
nees were submitted for election by members of the ECOSOC.
iv. Structure of the Human Rights Council
At the inaugural session, the Council elects a president for a 
one-year term. The president will preside over the election of four 
vice-presidents representing other regional groups in the Council. 
The president and vice presidents form the Council ‘Bureau’. The 
presidency rotates among different Bureau members on an annu-
al basis. The president appoints experts, rapporteurs and working 
groups to examine human rights issues. Under the Commission, 
the role of ’President’ was held by a Chairman.
v.   Meetings, Reporting and Rules of Procedure of the 
Council
The Council is headquartered in Geneva, Switzerland, and 
meets for three or more sessions per year for ten weeks or more, 
44 
Daniel Moeckli et al. (eds.), loc. cit.
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DIGNITAS n Teorija mednarodnega prava in človekovih pravic
including a main session. It can hold special sessions at the re-
quest of any Council member with the support of one-third of 
the Council membership. By contrast, the Commission on Human 
Rights met in Geneva once a year for approximately six weeks, 
and after 1990 special sessions were held upon request.
45
The Council will submit annual reports directly to the General 
Assembly. In five years, the Council is also required to review and 
report to the General Assembly on its “work and functioning”. 
The Commission submitted reports primarily to the ECOSOC, a 
limited membership body, which reported the Commission’s ac-
tivities to the General Assembly.
The Council will follow the rules of procedure created for com-
mittees of the General Assembly.
46
 Procedures that relate to the 
participation of observer states, international organisations, non-
governmental organisations (NGOs), specialised agencies, and 
human rights institutions fall under the practices observed by the 
Commission.
47
 These rules encourage consultation and interac-
tion at Council sessions among Council members, observing UN 
member states, NGOs, and other relevant organisations. Countries 
that are not Council members do not have voting rights.
Universal Periodic Review Mechanism
The UN General Assembly resolution 60/251, establishing 
the HRC in 2006, introduced a major innovation when stating 
that the HRC shall “undertake a universal periodic review, based 
on objective and reliable information, of the fulfilment by each 
State of its human rights obligations and commitments in a man-
ner which ensures universality of coverage and equal treatment 
with respect to all States; the review shall be a cooperative mech-
anism, based on an interactive dialogue, with the full involve-
ment of the country concerned and with consideration given to 
45 
Examples of Special Sessions under the Commission included the situation of human rights in 
the territories of the former Yugoslavia (1992); the situation of human rights in Rwanda (1994); the 
situation in East Timor (1999); and “Grave and massive violations” of the human rights of the Pale-
stinian people by Israel (2000). See H.J. Steiner and P. Alston, op, cit., at 601. (More information on 
these sessions is available at http://www.ohchr.org/english/bodies/chr/special-sessions.htm Visited 
26 January 2012
46 
The General Assembly Rules of Procedure can be obtained at http://www.ohchr.org/english/bodi-
es/hrcouncil/docs/gaA.520.Rev.15_En.pdf Visited 26 January 2012
47 
The Commission on Human Rights followed the ECOSOC rules of procedure that can be accessed 
at http://www.ohchr.org/english/bodies/hrcouncil/docs/ECOSOC.rules_En.pdf Visited 26 January 
2012
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DIGNITAS n Diplomatic manoeuvres involved in the creation of the United Nations ...
its capacity-building needs;... 
48
 On 18 June 2007, the HRC ad-
opted a resolution establishing detailed procedure rules (peri-
odicities, modalities, basis, outcomes, objectives etc.) during its 
fifth session.
49
 The UPR will work on a 4-year cycle basis, during 
which all of the 192 (now 193) UN member states will be exam-
ined under this procedure. The basis of the review includes: The 
Charter of the United Nations; the Universal Declaration of Hu-
man Rights; human rights instruments to which a state is party; 
voluntary pledges and commitments made by states, including 
those undertaken when presenting their candidates for election 
to the Human Rights Council. In addition, the review will take 
into account applicable international humanitarian law given 
the complimentary and mutually interrelated nature of interna-
tional human rights and international humanitarian law. Further, 
the principles of the review include the following: to promote 
the universality, interdependence, indivisibility and interrelated-
ness of all human rights; to become a cooperative mechanism 
based on objective and reliable information and on interactive 
dialogue; to ensure universal coverage and equal treatment of all 
states; to be an intergovernmental process that is United Nations 
member states-driven and action-oriented; and to fully involve 
the country under review among others.
50
 The objectives of the 
review include: the improvement of the human rights situation 
on the ground; fulfilment of states’ human rights obligations and 
commitments and assessment of positive developments and 
challenges faced by the state; the enhancement of states’ capac-
ity and of technical assistance in consultation with and with the 
consent of the state concerned. Other objectives of the UPR are 
sharing best practice among states and other stakeholders; sup-
port for cooperation in the promotion and protection of human 
rights and encouragement of all cooperation and engagement 
with the Council, other human rights bodies and the office of the 
UN High Commissioner for Human Rights.
51
48 
UN General Assembly, Res. A/RES/60/251, 3 April 2006, para. 5(e)
49 
UN Human Rights Council, Res. A/HRC/RES/5/1, 18 June 2007
50 
One of the main principles of the UN HRC Universal Periodic Review is to ensure the participation 
of all relevant stakeholders, including nongovernmental organisations and national human rights in-
stitutions, in accordance with General Assembly Resolutions 60/251 of 15 March 2006 and Economic 
and Social Council Resolution of 1996 (3) of 25 July, 1996, as well as any decision the Council may 
take in this regard.
51 
Sandy Ghandhi (ed.), Blackstone’s International Human Rights Documents 7th edn. Oxford: Oxford 
University Press, 2010 at 247-248
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DIGNITAS n Teorija mednarodnega prava in človekovih pravic
The UPR mechanism operates as follows. Each member state 
is reviewed once every four years. The Human Rights Council will 
thus review 48 states per year. Reviews are to take place during 
the three two weeks sessions held each year, with 16 states being 
reviewed in each session. The review is conducted by the UPR 
Working Group, which consist of all members of the Council and 
is chaired by the President of the Human Rights Council. Each 
review is facilitated by a group of three Council members, each 
from a different regional group, who are drawn by lot. This group 
is referred to as the “troika”.
52
Distinctions between the UN Human Rights 
Council and its Predecessor, ‘the Commission’?
The Commission on Human Rights had many proud accom-
plishments, particularly in setting global human rights standards. 
But its many new features make the new Council an even stronger 
body. For example, the Commission’s members were really select-
ed behind closed doors and then ‘elected’ by acclamation. By con-
trast, the new members of the Council had to compete for seats, 
and successful candidates needed to win the support of a major-
ity of all member states in a secret ballot. For the first time ever, 
candidates gave voluntary commitments to promote and uphold 
human rights, and will be expected to meet them or face possible 
suspension from the Council.
53
 The resolution establishing the 
Council also stressed the importance of ending double-standards, 
a problem that plagued the Commission. Thus, the Council es-
tablished a new universal periodic review mechanism which will 
offer the Council and the world the opportunity to examine the 
records of all 192 (now 193) member states of the United Nations. 
Unlike before, no country can escape scrutiny. In addition, the 
Council will meet throughout the year, whereas the Commission’s 
limited six-week schedule severely impaired its effectiveness and 
flexibility. With this precious additional time, the Council will be 
able to undertake preventive initiatives to defuse simmering cri-
ses, and to respond quickly to emerging human rights crises.
54
52 
Daniel Moeckli et al. (eds.), op. cit., at 395
53 
Frequently Asked Questions., Human Rights Council, Information Office, United Nations Office 
in Geneva, Available online at www.unog.ch/news and www.ohchr.org/english Visited 28 January 
2012
54 
Ibid.
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DIGNITAS n Diplomatic manoeuvres involved in the creation of the United Nations ...
In distinguishing the main futures of the new Council from the 
old Commission, Prof Kolb identified four main issues, namely: 
institutional change, membership change, greater frequency 
and length of sessions, and a new evaluation procedure (peer 
review).
55
Under institutional change he stated that the Council is a sub-
sidiary organ of the General Assembly of the United Nations and 
not the Economic and Social Council (ECOSOC) and that the 
greater importance of the General Assembly, as the United Na-
tions plenary organ, reflects the significance of this institutional 
change. As for membership change, he posited that the Human 
Rights Council is composed of 47 states elected by the General 
Assembly by a simple majority of votes for a term of three years, 
once renewable. A state must then wait one term before it can 
be re-elected to the Council. In order to be elected, as a member, 
a candidate state must “uphold the highest standards” of human 
rights matters. This condition is a response to the express wish 
not to elect states to the Council that have little respect for human 
rights. The new Council has a greater frequency and length of ses-
sions than the old Commission. It meets for at least ten weeks in 
total. In addition, each member may propose holding (extraor-
dinary) emergency sessions. Such sessions take place if a third 
of the Council members vote in favour. Further, the new Human 
Rights Council has created a new evaluation procedure (peer re-
view) which evaluates respect for human rights obligations prom-
ised by all member states of the United Nations on the basis of 
cooperation, discussion and technical assistance, namely respect 
for the old principles of constructive dialogue.
56
Conclusion
The author has observed from the above analysis that the Unit-
ed Nations hierarchy and the Swiss Government’s Department of 
Foreign Affairs (DFA) were the catalytic forces behind the creation 
of the new United Nations Human Rights Council that replaced 
the old UN Commission on Human Rights. Evidence shows that 
55 
R. Kolb, An Introduction to the Law of the United Nations, Oxford: Hart Publishing, 2010 at 130-
131
56 
Ibid. This is what is called Universal Periodic Review mechanism under paragraph 5(e) of Resolu-
tion 5/1 passed by the Council on 18 June 2007.
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DIGNITAS n Teorija mednarodnega prava in človekovih pravic
the open diplomatic negotiations and dialogue of the United Na-
tions hierarchy, particularly the influence of former UN Secretary 
General Kofi Annan, former President of the United Nations Gen-
eral Assembly Jean Ping, his successor Jan Eliasson and John Bol-
ton, US Permanent Representative to the UN who took a hard line 
against the establishment of the new UN Human Rights Council 
before the arrival on the scene of US Secretary of State Condo-
leezza Rice who got directly involved in the negotiations, even-
tually paved the way for the open diplomatic measures that led 
to the establishment of the new UN Human Rights Council. The 
underground diplomatic initiatives can be attributed more to the 
diplomatic steps taken by the Swiss Government’s Department of 
Foreign Affairs considering the efforts of Micheline Calmy-Rey, the 
Head of the Swiss Federal Department of Foreign Affairs (DFA), 
and Professor Walter Kälin of the Institute of Public Law of the 
University of Bern who investigated the possibility of reforming 
the Commission under the mandate of the Swiss DFA, and Rachel 
Groux, a Swiss human rights expert who made inputs into the ne-
gotiation strategies adopted by then President of the General As-
sembly Jan Eliasson on the reforms and establishment of the new 
Human Rights Council.
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