Today marks the beginning of the 19th session of the Human Rights Council, scheduled to run from February 27 to March 23, 2012. This session will also mark the official end of the first cycle of the Universal Periodic Review mechanism, which has seen all 193 member states of the UN undergo a review of their human rights record, creating a baseline for future reviews. The unofficial end of “UPR” (as it is known) happened in October 2011, but with the adoption of the last remaining reports at the 19th session, the international community is officially at a point where we can look back on the first run-through of this new mechanism and discuss changes for the second.
Universal periodic review was one of the proposals made in the lead-up to the World Summit of 2005, with the outcome of the World Summit confirming the creation of a standing Human Rights Council out of the ashes of the old part-time Commission on Human Rights (A/RES/60/1). The idea of the Council serving as a “chamber of peer review” to evaluate the fulfilment by all states of all their human rights obligations was a proposal backed by then UN Secretary-General Kofi Annan. Annan expanded on the idea in an explanatory note published in May 2005 (A/59/2005/Add.1) as an addendum to his “In Larger Freedom” report of March 2005 (A/59/2005). These reports helped focus the discussions taking place between states as they prepared for the World Summit of September 2005, although it was not until March 2006 when the UN General Assembly adopted a resolution specifically on the “Human Rights Council” (as the resolution is entitled), which confirmed that the Council would undertake a universal periodic review (as the mechanism had become known) (A/RES/60/251).
According to operative paragraph 5(e) of UN General Assembly resolution 60/251, universal periodic review would be based on “objective and reliable information” and conducted “in a manner which ensures universality of coverage and equal treatment with respect to all States.” It was also promised that the “review shall be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned, and with consideration given to its capacity-building needs” and that “such a mechanism shall complement and not duplicate the work of treaty bodies.”
The new Human Rights Council was established in 2006, and a year later, in mid-2007, the Council agreed to an “institution-building package” found in Human Rights Council resolution 5/1 containing the specific modalities with respect to its mandates and functions. It is within resolution 5/1 that we find the agreed specifics for universal periodic review, including the time management rules necessary for ensuring that over 190 states are each reviewed through a consistent process within a four-year period.
These time management aspects include express page limits for the written material, as well as a three-hour time limit (plus an additional hour) for the interactive dialogue component, and even one minute and two minute limits imposed on questions asked by the reviewers (e.g. other states). The review process also makes use of a troika of facilitating rapporteurs for each country under review, with the actual review taking place before the entire 47-member Council acting as a working group of the whole (with observer states also participating). Such specifics were necessary to meet the agreed four-year time limit, and while restrictive, and sometimes limiting information available for each review, UPR has nevertheless produced a baseline for all states for the second cycle, scheduled to run from June 2012 until 2016, with attention to be paid on the implementation of recommendations made during the first cycle that were agreed to by each state while under review.
Clearly one of the goals of UPR has been to ensure that no state is immune from review with respect to its human rights record. While there are similarities between UPR and state reporting to the human rights treaty-monitoring bodies, the latter flows from a state’s consent to be bound by a treaty, and not all states are party to all the international human rights treaties adopted under the auspices of the UN. Thus UPR serves to fill in the gaps by reviewing the record of all states in relation to all rights – civil, political, economic, social and cultural rights. And the main achievement of UPR has been its rate of state participation, with 98% of states having submitted a written national report, and 80% of states having been represented by a Minister at the oral or “interactive dialogue” stage of the review process.
Another achievement of UPR has been the ready access to information, with almost all states having prepared a national report that can now be accessed by anyone via http://www.ohchr.org/EN/HRBodies/UPR/Pages/Documentation.aspx. In addition, staff at the Office of the UN High Commissioner for Human Rights have been tasked with preparing a compilation of the key findings of the various UN treaty bodies and special procedures relevant to each state under review, with each compilation serving as a useful summary or starting point for further research. There is also a compilation prepared summarizing any and all information received from stakeholders, NGOs and national human rights institutions in preparation for each country’s review before the Council.
We have also seen the prospect of an upcoming review serve as an incentive for states to ratify more human rights treaties or extend an invitation to the special procedures of the Human Rights Council (the term used to refer to the various Special Rapporteurs, Independent Experts, and Working Groups tasked by the Council to investigate specific human rights themes or specific country situations).
UPR, however, is not perfect, and the efforts of states during the second cycle need to focus on the implementation of a state’s human rights obligations (rather than the ratification record on paper) and the promotion of fewer, more specific recommendations (eliminating the vague and broad-brush recommendations that lean more towards political posturing rather than concrete suggestions). I recognize that political considerations are inherent within a political body, with allied states able to engage in a concerted campaign of “gotcha” against one state or another, or getting together to serve as a mutual praise society for each other’s reviews. But I am also not one to overlook the fact that the former Commission on Human Rights had developed a similar “periodic reporting process” in the early 1960s that was eventually abolished because the reports it generated on state performance were ultimately of marginal utility. Thus the content of UPR does matter.
There is also a need to improve the engagement with civil society, although for some countries, this leads to a need for national NGOs to make submissions rather than only international NGOs. In other countries, including my own, there is a need to look beyond the usual suspects as being the entirety of civil society. I have argued elsewhere that Canada, for example, needs to engage beyond the five or so NGOs that appear to be on speed-dial at the Department of Foreign Affairs and reach out to other groups to assess the human rights situation in Canada, in its entirety and within a broader context, including scholarly associations, lawyers handling immigration cases or criminal matters, Bar associations, chambers of commerce, and university researchers, with the latter’s terms of employment (e.g. tenure) being a means to ensure independence from both government and non-governmental organizations. One should also recognize the possibility of input from stakeholders being positive as well as negative.
But admittedly, perhaps the greatest benefit from UPR comes from the self-evaluation that it triggers within government, with the prospect of a future review before the Council leading many states to engage in a process of internal review and inter-ministerial discussion. UPR has also become an important tool for identifying areas where technical assistance and capacity building is needed, with many developing countries making use of the UPR process as a means for identifying where international assistance is needed and providing a basis for making a request to the relevant UN agencies for support. In fact, as I write this post, I am in Suriname, where I am participating in a UNDP-supported collaborative project with the Ministry of Justice and Police to enhance the internal capacity of the civil service with respect to human rights and international human rights reporting.
As the international community moves towards UPR’s second cycle, I hope that there will be more public musings about the positives and negatives of UPR No 1, with a view to making continued and effective use of this mechanism for reviewing all states with respect to all human rights.