Enhancing the Universal Periodic Review
Overall, the Universal Periodic Review (UPR) has proven to be a useful mechanism for advancing the promotion and protection of human rights. Through the UPR, the Human Rights Council has examined country situations that are rarely spotlighted in international forums, and has shed light on human rights concerns in states with generally strong human rights performance where such issues would otherwise have been overlooked. The review has spurred governments to make needed human rights reforms and has led to meaningful changes on the ground. Most importantly, the UPR is a living embodiment of the principle that there are human rights issues that deserve discussion in all states, no matter what their level of development, their political system, or geographic region.
The UPR presents unprecedented advocacy opportunities at the international and national level for human rights supporters seeking to spotlight concerns and push for change. By allowing even non-accredited NGOs to submit information, the review has significantly expanded participation in the Council by domestic NGOs. The three reports that form the basis of the UPR bring together the different perspectives of the concerned government, the UN system, and other stakeholders, including civil society and national human rights institutions, and place their views of the human rights situation on record. The UPR has the potential to create space for national dialogue on key human rights challenges, especially in societies that have robust civil society, legislative, and media participation. Each UPR is different in terms of the opportunities and challenges it creates. The approach that a state takes to the UPR, including the level of civil society consultation, transparency, and its response to recommendations, says a great deal about the state’s commitment to human rights.
Strengths and Weaknesses of the Universal Periodic Review
The fact that the UPR is a shared experience for all governments in which all states both make and receive recommendations from their peers has been the main source of success of the UPR. This shared experience helps explain why the UPR has achieved 100 percent participation from all states undergoing review, which has not been the case for treaty body reporting. The UPR process has, in many cases, helped mobilize different departments or ministries within governments around the human rights agenda. As noted, the UPR has proven that it is possible for governments to discuss all kinds of human rights situations in a cooperative and collaborative environment. Another positive aspect of the UPR has been its accessibility through public webcast, and the fact that it is recorded and can be viewed at any time. This makes the process more transparent and allows for increased participation.
The UPR is not, however, a rigorous technical review of the human rights situation in a country. Unlike treaty bodies, which consider the detailed application of specific human rights obligations by a state party, the UPR only provides a general picture of the human rights situation in a country. Peer review cannot substitute for the expertise that treaty bodies and special procedures bring to bear upon a human rights situation, and states should bear in mind that the UPR should be a tool to help enforce existing recommendations by special procedures and treaty bodies, rather than compete with them.
The effectiveness of the UPR also depends on the willingness of states to respond to recommendations of their peers and undertake human rights reform. While the results of the UPR process are far from uniform, it is noteworthy that even some states without vibrant civil society or independent media have made significant commitments as part of the UPR. For example, Saudi Arabia agreed to abolish the guardianship system for women, and Vietnam pledged to limit the crimes for which the death penalty is applied. While these commitments are very significant, it remains to be seen whether they will be implemented, and there is no specific mechanism currently within the UPR to check on their implementation.
In other cases, the UPR has generated international attention concerning human rights concerns and helped support the calls for change at domestic levels. In the case of Mexico, for example, although the government did not agree to end military jurisdiction over human rights abuses committed by military personnel, the calls made by Mexican civil society for civilian jurisdiction for such abuses were echoed by many states’ recommendations during the UPR, increasing the pressure on the Mexican government to consider such reform.
Ensuring a Critical Assessment during the UPR
The quality of the UPR depends on critical but fair assessment by peers. In a number of cases, governments have been able to avoid such critical assessments by rallying the support of friendly governments eager to praise their human rights record without devoting any attention to the shortcomings that exist regarding human rights in all states. Stonewalling by devoting considerable time to such praise rather than focusing on human rights concerns undermines the main purpose of UPR, which is to improve the human rights situation on the ground.
The universal nature of the UPR process demands that all states should have equal opportunity to intervene in the UPR of a country and to hear the interventions of all states interested in speaking in their own review. Time should be managed flexibly to allow all states that wish to speak to do so. The UPR debate should be as long as necessary in order to ensure equal participation of all delegations. Human Rights Watch is supportive of proposals to extend the amount of time for discussion of each country situation, even if this requires lengthening the review cycle from four to five years. By allowing more time for discussion, the HRC could ensure that there is a proper interactive dialogue with the state under review, before proceeding to make recommendations.
Commitments Made by Governments during the UPR
An additional weakness of the UPR process to date has been the absence of clear responses by some states under review to recommendations made by their peers. Without such responses, the UPR cannot achieve its purpose of fostering tangible improvements in the protection of human rights. Failure by states to make clear commitments limits the HRC’s ability to measure or follow up progress on the ground. States that avoid responding to recommendations contravene the requirement of HRC Resolution 5/1, article 32, which states that recommendations that enjoy the support of the state under review will be identified and that other recommendations, together with the comments of the state, will be noted.
The 2011 review should address this failure and call on all states to abide by the rules they drafted for the UPR. Governments should be required to clearly state their positions regarding all recommendations.
Governments should also be required to indicate their responses to recommendations at least two weeks ahead of the adoption of the final report of the UPR. This would allow NGOs and delegations to make properly informed comments about the UPR process of the reviewed state during the adoption of the final report.
Bringing Expertise into the UPR
While the UPR has generally relied upon and incorporated international human rights standards, there are substantial concerns that some recommendations formulated by governments during the reviews have been inconsistent or contrary to international human rights norms. Furthermore the information compiled in the UN and stakeholders’ report containing a broad analysis of the situation and recommendations regarding the state under review does not bear enough prominence in the review process. The UN and stakeholders’ reports are not formally presented to the working group or the Human Rights Council at any stage of the review process. The wealth of recommendations and conclusions put forward by experienced independent mechanisms of the UN is therefore lost in this process, as is the assessment of independent civil society actors advocating for the improvement of human rights in their countries.
To address these concerns, the Human Rights Council could create a roster of independent experts or request the Office of the High Commissioner for Human Rights (OHCHR) to provide its expertise during the process. The task of the experts or OHCHR would be to observe the whole of the review process and to present during the adoption of the final report of the UPR of the state under review.
As a rapporteur of the process, the expert would explain the different stages of the review, painting an overall picture of the main issues raised and the commitments made. The rapporteur would present the main elements of the UN and stakeholders’ reports, and would advise the HRC regarding recommendations that were inconsistent with human rights standards. The rapporteur’s comments would not alter the final report of the UPR, but would serve to bring together the different aspects of the process and add expertise helpful to both the state under review and the HRC itself.
Follow up and Universal Periodic Review
Another shortcoming of the UPR as currently implemented involves those situations where there is an obvious need for the Council to move from recommendations made by individual governments to a response by the Council as a whole. To date, the UPR has not triggered any further action by the Council as a whole, despite their being many situations discussed in the review that warrant more sustained action or examination by the Council. The UPRs of Afghanistan, Kyrgyzstan, and Sri Lanka are clear illustrations of this gap.
Agenda item 6, which covers the UPR, should have a section reserved for further consideration of initiatives arising from the UPR. This would allow for discussion of situations that the Council considers meriting more sustained engagement following the UPR. The section could include debates on proposals for technical cooperation arising from the review, discussions on the need for follow up and monitoring by the Council, or other proposals arising from the UPR, such as follow up on commitments to allow special procedures to visit the country.
Although many governments have voluntarily informed on the status of implementation of the commitments they made under the UPR, governments should be required to report on the status of implementation of their UPR commitments two years after their review was completed. This would create a formal basis for UPR follow up applicable to all countries. Creating a formal mechanism for follow up will help ensure that the focus of the UPR is as much on implementation and improving human rights on the ground as it is on reviewing and making recommendations and commitments.