Issue 40 February 2008 - The UN Human Rights Council and the Universal Periodic Review
The UN Human Rights Council ("the Council") replaced the UN Commission on Human Rights ("the Commission") in April 2006. The Council was directed by Resolution 60/251 of the General Assembly of the UN to:
"undertake a universal periodic review, based on objective and reliable information, of the fulfillment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States; 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; such a mechanism shall complement and not duplicate the work of treaty bodies."
The Council has now established its Universal Periodic Review ("UPR") mechanism and the UK is included in the first round of 16 states to be considered during the first session of the UPR working group scheduled for April 7-18, 2008. This article will outline the requirements of the UPR and comment on what the UK can expect from its first UPR.
The Council undertook its first session in June 2006 and, a year later, in its fifth session on June 18, 2007, adopted its Resolution 5/1. This Resolution contains the detailed procedural framework for the implementation and performance of the UPR. Resolution 5/1 details the basis of the periodic review, the principles to be followed, the regularity of the review, its processes as well as the anticipated outcomes and follow-ups to the reviews.
Objectives and principles
The Council's stated objectives for the UPR are to improve the human rights situation on the ground, ensuring the fulfillment of a state's human rights obligations and assessing the positive developments and challenges faced by the state. The UPR also aims to enhance the State's capacity and technical assistance in consultation with the consent of the State concerned. It is apparent that this is to be achieved by the sharing of best practice among States and other stakeholders and encouraging full cooperation and engagement with the Council.
Resolution 5/1's stated principles are the product of debate and compromise within the Council's preparatory working groups. The principles reflect the concerns of the Council's Member States to avoid the charges of selectivity and politicisation which dogged the Commission.
Accordingly, the UPR is to be conducted in a manner which is to adhere to the following principles:
To promote the universality, interdependence, indivisibility and interrelatedness of all human rights;
To be a co-operative mechanism based on objective and reliable information and on interactive dialogue;
To be an intergovernmental process, United Nations member driven and action orientated;
To fully involve the country under review;
To be conducted in an objective, transparent, non-selective, constructive, non-confrontational and non-politicised manner;
Not to be overly burdensome to the state concerned or the agenda of the Council;
Not to be overly long; the UPR should be realistic and not absorb a disproportionate amount of time, human or financial resources.
These principles guide the procedures adopted under Resolution 5/1 and the spirit in which the reviews will be conducted. It is apparent from the Council's preparatory working group meetings that the UPR is intended as a mechanism to be complementary and to "add value" to Council's existing procedures as opposed to placing an additional and significant burden on states.
The substance of the review
The basis of the review will be on the Charter of the United Nations and the Universal Declaration of Human Rights, together with other human rights treaties and voluntary pledges that have been made by the State being reviewed. Importantly, the UPR has the capacity to analyse a State's performance in accordance with applicable international humanitarian law too.
Universal Periodic Reviews will be undertaken every four years, meaning that in each cycle of 48 months each of the Member States of the UN will be reviewed once. At its sixth session, on September 21, 2007, the Council adopted a calendar in relation to the consideration of the 192 Member States of the United Nations. In this calendar the Council decided on the precise order of consideration of 48 States to be reviewed in 2008.
In accordance with resolution 5/1, the review will be based on three principal sources:
• Information prepared by the State concerned. This can take the form of a national report and any other information considered relevant by the State concerned, which could be presented either orally or in writing. The written presentation summarising the information provided by the State is not to exceed 20 pages, and should be submitted six weeks prior to the session of the working group at which the specific review will take place. Resolution 5/1 encourages States to prepare the information through a broad consultation process at the national level with all relevant stakeholders.
• A compilation, prepared by the Office of the High Commissioner for Human Rights ("OHCHR") of the information contained in the reports of treaty bodies and special procedures, including observations and comments by the State concerned, and other relevant official United Nations documents, which is not to exceed 10 pages.
• A document to be prepared by the OHCHR summarising additional, credible and reliable information provided by other relevant stakeholders that is not to exceed 10 pages. Stakeholders include, inter alia, NGOs, National Human Rights Institutes, Human Rights defenders, academic institutions and research institutes, regional organisations, as well as civil society representatives. The deadline for the submission of information by stakeholders for the first UPR session was November 20, 2007; a mere two months after the passing of Resolution 5/1.
These documents will be discussed in sessions to be conducted in a working group composed of the 47 Member States of the Council. The review itself will be conducted by way of three hour debates on each State during which "interactive dialogue" between the State under review, the Council and other observer States will take place. According to Resolution 5/1, other relevant stakeholders may attend the review and will have an opportunity to make general comments before the adoption of the outcome of the UPR. The State itself will be given one last chance to present replies to questions or issues that were not sufficiently addressed during the "interactive dialogue" phase of the session before the Council adopts its outcome.
The review's outcomes
From the UPR will come a report consisting of a summary of the proceedings of the review process; conclusions and/or recommendations, and any voluntary commitments made by the State concerned. Resolution 5/1 anticipates that outcomes to the UPR will include assessments undertaken of the human rights situation in the State, the "sharing of best practices", an emphasis on enhancing co-operation for the promotion and protection of human rights, the provision of assistance (with consent) to the country concerned and/or voluntary commitments made by the country. Outcomes are to be adopted in a cooperation with the State concerned .
As a follow-up to the review, Resolution 5/1 states that subsequent UPR's should focus on the implementation of the outcomes of the preceding reviews. Furthermore, Resolution 5/1 expects that "the international community will assist in implementing the recommendations and conclusions regarding capacity building and technical assistance in consultation with, and with the consent of, the country concerned". The primary responsibility for the implementation of any of the UPR's outcomes will lie with the State itself.
Challenges faced by the UPR?
The UPR is intended as a peer review process which shares best practices among other States and other stakeholders. The hope is that this will lend state support in the promotion and protection of human rights and engagement with the Council and other human rights bodies. The work of the Commission was accused of selectivity, politicisation and double standards. To address these concerns the Council's UPR mechanism therefore applies across all the Member States of the UN and each State will appear before the same body with equal procedural treatment against measurable benchmarks of compliance. However, although the UPR's framework gives a standard format for its facilitation, the UPR's flexibility means that the reviews will differ from State to State. First, the information submitted by States themselves and other relevant stakeholders will differ in their content, depending on human rights issues in-State and on the ability of NGO's to comment on those issues. Secondly, the UPR's outcome will differ according to a State's compliance with its human rights obligations to date, and with the willingness of that particular State to engage with the UPR and to adapt to its outcomes. It will be interesting to trace the development of subsequent UPRs. Outcomes will presumably be many and varied, and adherence to them will depend entirely on the State concerned. The effectiveness of the review will essentially depend on how seriously its participants take it. The UPR is intended to apply equally to each State, but as Felice D. Gaer observes:
"Experience with UN human rights mechanisms reveals that the attempts at universality equal 'treatment, equal time spent and equal resources- can often mask, or mute attention to, the worst cases of abuse, or produce a moral equivalency of sever violators with those largely in compliance".
Whether this observation will apply to the UPR remains to be seen.
Neither does the UPR appear to be "politicisation-proof". Different human rights norms will be adhered to different standards by different States; those States with the grossest violations will be treated more harshly than those which are largely compliant. Observer States and relevant stakeholders are entitled to comment on the UPR and will do so more vociferously where the review warrants. The review offers equal procedural rights to participants but does not ensure States receive equal treatment in the review per se. The UPR may become prey to accusations of politicisation in much the same way as the work of the OHCHR was. It will only be during the operation of the UPR that we will be able to see whether those States seeking to evade their human rights obligations level this charge at the UPR
The UPR's agenda is also incredibly ambitious; 192 States in four years, 48 per year, nearly one a week. During this time the Council will be expected to receive information from the State, the OHCHR and other relevant stakeholders. Not only will the information have to be received, but analysed too; the quality of the UPR will, after all, depend on the knowledge and expertise of its examiners. Whether this will be too much information to handle by the UN's limited human and financial resources also remains to be seen.
Looking towards the UK's first UPR
The UK is included in the first round of 16 States to be considered during the first session of the UPR working group scheduled for Apri17-18, 2008. Submissions to the Council from other relevant stakeholders had to be received by the Council by November 20, 2007. On January 8, 2008 the Council published a preliminary information note aimed at informing NGOs and providing them with some guidance on the way they may contribute to the UPR mechanism. UK based NGOs therefore had to submit their papers to the Council without the benefit of the Council's note. The timescales for the submission of papers to the Council was tight but organisations such as Liberty, Amnesty International, the Committee on the Administration of Justice ("CAJ) and interested student groups have been able to make submissions. The themes developed by these submissions concentrate on, inter alia:
The UK's anti-terrorism policies, e.g. the use of the Special Immigration Appeal Commission, control orders, the debate over the length of pre-trial detention and the passage of US rendition flights through UK airports;
Criminal Justice, policing and anti-social behaviour;
Privacy and Surveillance;
The extraterritorial application of human rights protection to UK armed forces serving overseas;
Examples of individual failures of accountability
At the time of writing, the UK government's submission and the OHCHR's summary is unavailable. It will be interesting to see how these papers account for the NGO submissions and to see what makes it through the OHCHR's filter in summarising the submissions. It will also be interesting to see what goes on to be considered during the mere three-hour interactive dialogue phase of the review, and whether the review will concentrate on a couple of 'big-ticket' issues or attempt to address each topic raised by the submissions. It is exciting to think that the UK's policies will be reviewed by the Council, other States and relevant stakeholders in April of this year.