New Zealand Yearbook of International Law
Last Updated: 8 July 2015
REFLECTIONS AND CHALLENGES: ENTERING INTO THE SECOND CYCLE
OF THE UNIVERSAL PERIODIC REVIEW MECHANISM
Under the auspices of the United Nations Human Rights Council (HRC or Council), a new political mechanism for the periodic peer review of the fulfilment by all United Nations (UN) members of their human rights obligations and commitments began in 2008, known as the Universal Periodic Review (UPR). With the adoption in March 2012 of the last outcome documents in the first cycle of the UPR, all UN Member States have now had their human rights record reviewed by the Human Rights Council. The UPR has been held up by the Council as a unique success towards the universal advancement of human rights. The UN High Commissioner for Human Rights has described the UPR mechanism as one that “has opened unprecedented opportunities to initiate or strengthen dialogue and cooperation on human rights at all levels, and with all countries”.1 As the Council now begins the second cycle of the UPR, this commentary reflects on the performance of the first cycle and considers the ways in which the second cycle could move forward to achieve the aim of promoting and protecting human rights and fundamental freedoms on the ground.
From a lawyer’s perspective, the UPR mechanism is deficient in various
respects. It is not binding. Recommendations depend
on acceptance by the
State under Review (SUR). Furthermore, the recommendations made sometimes
represent a watering-down of the
rights concerned and of the more tough
recommendations made by UN treaty bodies and Special Procedures. While these
valid, they ignore the fact that the UPR is not a legal process.
Although the UPR concerns itself with obligations under international
rights law, it is a mechanism of the Human Rights Council, which is a political
organ of the UN, and must therefore be assessed
against the backdrop of both law
and politics. The UPR involves the review and participation of all UN members,
something that cannot
be said with respect to the UN treaty bodies where there
is just thirty-three per cent timely compliance with periodic reporting
obligations and in respect of which approximately twenty per cent of initial
reports due under the universal human rights treaties
have never been
submitted.2 The UPR thereby requires States that would not otherwise engage on
human rights issues to do so. Furthermore,
it has resulted in the emergence of
dialogue between governments and civil society that has in many countries been
absent. From various
perspectives, the UPR has empowered civil society.
I. The Universal Periodic Review Mechanism
In 2006 the United Nations General Assembly established the Human Rights Council as a subsidiary body of the General Assembly to replace the former Commission on Human Rights and to act as the UN’s primary political body responsible for the promotion and protection of human rights.3 In setting out the overall mandate of the Human Rights Council, the General Assembly tasked the Council with undertaking a Universal Periodic Review of “the fulfilment 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”.4 The General Assembly intended this mechanism to be a cooperative one, based on an interactive dialogue and with the full participation of the State under Review, with consideration given to the capacity-building needs of the SUR.5 It saw the UPR mechanism as one that should complement rather than duplicate the work of the treaty- monitoring bodies.6 It is also clear that, in replacing the Commission on Human Rights with the Human Rights Council, one of the key imperatives of this reform was to address the perception that the work of the Commission in relation to country-specific situations had been “selective and based on double standards”.7 Thus, through the UPR, the Council was tasked with undertaking a periodic review of the human rights situation in all Member States of the United Nations.
Apart from mandating that UN Members elected to the Council should be reviewed under the UPR mechanism during their term of membership,8 the General Assembly left the question of the operational modalities for the UPR mechanism to the HRC.9 Bearing in mind that the Council was to undertake a review of the work and functioning of the HRC and its mechanisms within five years,10 the modalities for the first cycle of the UPR were set out in the Council’s “institution-building package”, adopted under its resolution 5/1 (2007).11 The first cycle commenced in February 2008 and concluded with the final round of adoption of UPR outcome documents in March 2012. The first set of periodic reviews under the second cycle of the UPR commenced with the 13th session of the Council’s Working Group on the UPR from 21 May to 4 June 2012. The modalities for this second cycle continue to be governed by resolution 5/1, as supplemented by some relatively minor fine- tuning as a result of the review of the work and functioning of the HRC.12
The first cycle of the UPR was conducted over a four-year period,
involving three two-week sessions of the UPR Working Group per
year, in which 16
countries were reviewed during each session.13 In order to allow a slightly
longer consideration of each review
by the Working Group, the second cycle of
the UPR is to be conducted over a period of four and a half years,14 meaning
that 14 countries
are to be reviewed in each of the two-week sessions taking
place in February, May and October of each year.15 With the aim of assisting
participation in the UPR of developing countries, particularly least developed
countries and small island States, and also
to help those countries implement
recommendations from the UPR, the UN Secretary-General established – at
the request of the
Human Rights Council – a Voluntary Trust Fund for
Participation in the UPR Mechanism and a Voluntary Fund for Financial and
Technical Assistance.16 Alongside assistance provided through field presences of
the Office of the High Commissioner of Human Rights
(OHCHR), assistance under
the Funds has been provided to several countries during the first cycle of the
UPR, including Fiji, Papua
New Guinea, Tonga, Tuvalu and Vanuatu.17 The Funds
will continue to operate to assist in the conduct of the second cycle of the
Each review cycle comprises three main stages: (1) the review of the human
rights situation in the State under review, forming the
bulk of the review
process; (2) the implementation of accepted recommendations and voluntary
pledges and commitments by the State
under Review, which is essentially a
national task; and (3) reporting back by the SUR to the HRC on implementation
and on the human
rights situation in the country since the previous review. This
third stage is effectively part of the following cycle of the UPR
for the State
II. Review of the Human Rights Situation in the State Under Review
From start to finish, the process leading up to the adoption of the UPR
outcome document takes place over a period of approximately
ten to twelve
months. This period represents the main part of the review process, as far as
the work of the Human Rights Council
is concerned, and also concerning the
production of information on which each review is based. The review is itself
three main stages: (1) preparation of the information forming the
basis of the UPR; (2) review by the Council’s Working Group
on the UPR;
and (3) adoption of the UPR outcome document by the plenary of the Human Rights
A. Basis of the UPR
Peer review under the UPR is conducted on the basis of information from
three primary sources: (1) a national report from the State
under Review; (2) a
compilation prepared by the OHCHR of recommendations to the State by UN human
rights mechanisms; as well as
(3) information provided by other stakeholders.19
In practice, these three sources of information can at times be scant, given
the national report must not exceed 20 pages (in order “to guarantee
equal treatment to all States and not to overburden the
due to the ten-page restriction imposed on the OHCHR for its compilation of
recommendations from UN mechanisms
and its summary of stakeholder submissions.21
In the latter case, although this summary is based on stakeholder submissions
may themselves go into further detail on specific issues, even these
submissions are limited in length, as described below. It should
be noted that,
as suggested by Kälin, “equal treatment” requires that the
procedure for review “must be more
or less the same for all States but
cannot mean that the outcome will be the same” and that “the
principle of equality
requires treating equally what is equal and, to the extent
that differences exist, unequal what is unequal”.22
Pursuant to the guidelines established by the Council for the preparation of information under the UPR, the national report of the State under Review must explain the legal and policy framework for the promotion and protection of human rights, including national jurisprudence and infrastructure relevant to the implementation of the “basis of review”,23 namely the UN Charter, the Universal Declaration of Human Rights, the human rights treaties to which the State is party and any voluntary pledges and commitments made by the State, including those made if and when the State presented its candidature for election to the Human Rights Council.24 The Council’s institution-building package further dictates that, “given the complementary and mutually interrelated nature of international human rights law and international humanitarian law”, the UPR is also to take into account applicable international humanitarian law.25 National reports must set out a description of the steps taken by the State to conduct a broad national consultation with civil society, a process that is seen by many as one of the key strengths of the UPR mechanism, despite the lack of guidelines for conducting national consultation processes.26 The State under Review is also called on to identify best practices, challenges and constraints, alongside its key national priorities and initiatives to overcome those challenges and to improve the situation of human rights on the ground.27 For the second and subsequent cycles, the national report must describe the steps taken to implement the accepted recommendations and voluntary commitments from the previous review.28
The second primary document that forms the basis of the UPR is the compilation, prepared by the OHCHR, of recommendations to the State by the UN treaty bodies, the Special Procedures of the HRC, and “other relevant official United Nations documents”.29 The Office’s compilation of UN information is divided into five main sections. The first, on “background and framework”, identifies the treaties to which the SUR is a party and includes information on any declarations or reservations made and whether there has been a recognition of specific competences of the treaty bodies concerning individual communications and inter-State complaint mechanisms. It also identifies those instruments in respect of which the State is not a party. This includes not just the key universal human rights treaties, but also instruments such as the Rome Statute of the International Criminal Court, the Geneva Conventions and the International Labour Organisation fundamental conventions. This first part of the OHCHR summary also identifies recommendations concerning the constitutional and legislative framework for the protection of human rights in the SUR, including the status and operation of the country’s National Human Rights Institution (NHRI) as recognised by the International Coordinating Committee of NHRIs (ICC).
The second section of the compilation of UN information includes an overview of the State’s cooperation with the treaty body periodic reporting mechanisms and with the Council’s Special Procedure mandates, including whether the State has made a standing invitation to the Special Procedures. This section sets out, on a thematic basis, recommendations of the UN mechanisms concerning the implementation of international human rights obligations. The final sections look at achievements, best practices and challenges identified by those mechanisms, as well as pledges and recommendations for follow- up and the question of capacity-building and technical assistance. Although relatively brief due to their ten-page limit, these objective compilations have proved extremely useful for the identification, by the UPR Working Group, of recommendations and questions to be raised in the UPR outcome document. A comparison of the compilations of UN information with the recommendations found in outcome documents shows a good take-up of issues. In the case of New Zealand, for example, 15 of the 64 recommendations made in the UPR of New Zealand can be traced to the identification of those issues in the OHCHR compilation of UN information.30
The final basis of review for the UPR is the summary by the OHCHR of “credible and reliable information provided by other relevant stakeholders”.31 This mainly involves a summary of stakeholder submissions by national and international non-governmental organisations (NGOs) and NHRIs, although submissions may be made by other civil society actors, such as individual human rights defenders, academic institutions and research institutes.32 The information provided by stakeholders can in practice be referred to by any of the States taking part in the Working Group on the UPR during its interactive dialogue. Given that one of the primary areas of focus for the second and subsequent cycles of the UPR is the implementation of accepted recommendations,33 identified by some States as the priority issue for the second cycle,34 stakeholders are encouraged to include information on the follow-up to the preceding review.35 There has been some discussion amongst NGOs as to whether the second cycle of the UPR will allow stakeholders to discuss recommendations that were not accepted during the first cycle.36 It appears from discussions with the OHCHR that second cycle summaries of stakeholder submissions will not refer to NGO references that explicitly concern rejected recommendations from the first cycle. The simple solution will be for NGOs to frame relevant concerns within the broader context of implementation of human rights obligations (as one of the bases of all reviews),37 or within the context of “developments of the human rights situation in the State under review” (as one of the more particular bases of reviews for the second cycle).38 For NGOs and NHRIs, the raising of issues concerning rejected recommendations in the first cycle will therefore simply be a matter of how the material is framed.
As mentioned earlier, information in the three documents used for the UPR is
limited by restrictions in documentation length. This
applies also to
stakeholder submissions, which are required to be no more than 2,815 words in
length in the case of an individual
submission, or 5,630 words in the case of
submissions by coalitions of stakeholders.39 In order to fall in line with web
initiative standards,40 thus making documentation accessible to
persons with disabilities, submissions should be provided in Word
format.41 It should be noted that the OHCHR webpage on the Universal Periodic
Review identifies strict deadlines for the
submission of stakeholder
information.42 Stakeholder submissions are generally due six to seven months
ahead of the UPR Working Group
meeting. While this is problematic in some
respects, due to the fact that legal and policy developments and facts on the
change dramatically in this period, such deadlines are necessitated
by the requirement for the OHCHR to review all stakeholder submissions
purpose of preparing and issuing its summary of information at least six weeks
ahead of the Working Group session.43 The
OHCHR guidelines on stakeholder
submissions therefore make it clear that submissions received after the
specified deadlines will
not be considered in the preparation of the summary of
B. Review by the UPR Working Group
The core function of peer review is assumed under the framework of the Human Rights Council’s Working Group on the Universal Periodic Review, established within the Council’s institution-building package.45 The Working Group is chaired by the President of the Human Rights Council and operates through an interactive dialogue between the State under Review and the Member and observer States of the Council.46 Although other relevant stakeholders, including NHRIs and NGOs, may attend sessions of the Working Group, only States have the right of audience to participate in the review dialogue, excluding civil society and the Special Procedures from directly interacting at this critical stage of the review.47 While this is a shortcoming of the UPR process,48 it reflects the philosophy behind the UPR as a State-led process of peer review.49 The review of each country is facilitated by a troika of three rapporteurs who are diplomatic representatives of member States of the Council.50 Troika members are selected at previous sessions of the Council plenary by the drawing of lots from different UN Regional Groups, one of which may be from the Regional Group of the State under Review if requested by the SUR.51
Other than extending the time for reviews from three hours to three- and-a-half hours,52 and adjusting the modalities for States to register for the speakers’ list in the interactive dialogue,53 the conduct of interactive dialogues remains unchanged for the second cycle. Questions and recommendations may be raised in writing in advance and/ or orally during the Working Group session.54 The State under Review is given up to 70 minutes to present its report, its responses to written questions and questions from the floor and its concluding comments at the end of the review.55 Following the interactive dialogue the troika is responsible for the production of a draft outcome document, which is a report consisting of a summary of the proceedings, setting out the issues raised during the interactive dialogue as well as grouping together the recommendations made by each State participating in the dialogue and setting out the voluntary commitments made by the State under Review.56 This draft is presented by the troika at a later stage during the same Working Group session and forms the basis of subsequent action at the plenary level (as discussed below).
Recommendations in the UPR are made by peers. Despite the objective of establishing a mechanism devoid of selectivity, recommendations in the first cycle of the UPR have been criticised as being just that: selective and politicised recommendations based on foreign relations and self-preservation.57 Furthermore, as a consensus process, recommendations must be accepted by the State under Review. Recommendations that enjoy the support of the State under Review are identified as such in the outcome document, although all recommendations – including those rejected by the SUR – are included in the report.58 Where applicable, an Addendum to the outcome document is produced by the State under Review and presented during the subsequent plenary, detailing whether any further recommendations are accepted between the time of review and the adoption of the outcome document.59
It should be recalled that recommendations are in essence bilateral recommendations made through the multilateral forum of the UPR. To reflect this fact, the standard language used in UPR outcome documents provides that: “All conclusions and recommendations contained in the present report reflect the position of the submitting States and the State under review. They should not be construed as endorsed by the Working Group as a whole”.60 The bilateral nature of recommendations has led to selective and politicised recommendations, as noted. Politicisation has also meant that, in some instances, recommendations made by likeminded States will be accepted by the State under Review, whereas almost identical recommendations from an ‘unfriendly’ State are rejected. The first cycle UPR of Egypt in 2010 illustrates this point well. Egypt accepted a recommendation from Bangladesh to “continue its ongoing review of national laws to ensure that they are in line with its international human rights law obligations”.61 In contrast, it rejected a similar recommendation from Israel to “conduct a wide-ranging review of Egyptian human rights laws in order to bring them into line with Egypt’s international commitments, as so pledged in its Human Rights Council candidature and within its National Report”.62 A more positive side to the bilateral nature of recommendations can be seen where recommendations are accompanied by offers of technical assistance. In the case of Tonga’s UPR, for example, Switzerland recommended Tonga to ratify the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention against Torture. Switzerland at the same time undertook to consider extending its support by way of technical assistance if Tonga felt unable to ratify these instruments because of technical difficulties related to reporting obligations to the treaty bodies.63
One of the identified flaws in the first cycle of the UPR has been the lack of clear responses by States to all recommendations received.64 Responding to this criticism, the revised modalities for the second and subsequent cycles of the UPR call on the State under Review to clearly communicate its position on all received recommendations.65 Notwithstanding this improvement, the consensus approach to UPR recommendations is a somewhat perplexing feature for lawyers who are used to mechanisms that consider a situation and then issue binding decisions concerning that situation. It is at odds with some other international peer review mechanisms, such as that undertaken by the Working Group on Bribery in International Business Transactions of the Organisation for Economic Co-operation and Development, which adopts recommendations by a process of “consensus minus one”, that is, where the country reviewed has no right of veto.66 That being said, an examination of the outcome documents from the first cycle of the UPR reveals that a majority, and often a vast majority, of recommendations made by the Working Group on the UPR are accepted by the State under Review.67 In the case of New Zealand’s UPR in 2009, for example, 47 of the 64 recommendations made were expressly or implicitly accepted, representing a 73 per cent rate of acceptance.68 This does not reflect all UPR reviews, of course, as in the case of the 2009 UPR of China in which the State rejected a total of 50 recommendations made, compared to 42 recommendations accepted by it.69
The non-binding nature of UPR recommendations and their need for acceptance by the State under Review form the basis of valid criticisms of the UPR process. However, this consensus approach can act as a powerful tool in the hands of civil society and also for peers involved in the subsequent review of a State’s accepted recommendations and voluntary commitments. Some States often employ various arguments to dismiss the relevance of recommendations by other UN human rights mechanisms, including that they are based on a lack of understanding of the situation on the ground, or that they emanate from bodies that do not have the ability to issue binding decisions. The situation with accepted recommendations under the UPR is different, though, because of the very fact that they have been publicly accepted by the State under Review as recommendations that the State will act upon. Such recommendations cannot be dismissed by the SUR as irrelevant. This very public undertaking empowers civil society and the international community to hold States to their word.
A further aspect of recommendations under the UPR should be mentioned, namely
that of their number, scope and nature. A marked difference
in approach can be
seen through a comparison of recommendations made in the initial reviews under
the first UPR cycle with those
at the end of the cycle. By way of example, just
15 recommendations were made to Brazil during the first session of the UPR,
of which can be characterised as broad proposals to commit to core
principles and generally enhance the domestic situation of human
contrast, 172 recommendations were made to Thailand in the final session of the
first cycle.71 This in part reflects
a growing confidence of the Working Group
in the development of its work on the UPR. A challenge for the second UPR cycle
for the Council’s Working Group on the UPR to make precise,
practical and actionable recommendations that are more than a
of principle and that are manageable in number.72 Recognising that effective
implementation relies on effective
recommendations, the European Union and other
States have committed themselves to making just two high-quality recommendations
State in the review of each State under Review.73 States making this
commitment will need to ensure sufficient coordination in order
that a full range of issues is addressed in the UPR.
C. Adoption of the UPR Outcome Document
The final stage in the UPR process, as far as it involves the review of a country and the identification of recommendations, is the adoption of the outcome document by the plenary of the Human Rights Council.74 In practice, this occurs at a plenary session of the HRC approximately three to five months following the UPR Working Group session. The State under Review is offered the opportunity to present replies to issues that were insufficiently addressed during the Working Group interactive dialogue,75 although this right of reply is normally focussed on an update concerning the acceptance of any further recommendations by the Working Group, or any further voluntary commitments made.76 This is in almost all cases preceded by a written communication by the SUR to the Council, formatted as an addendum to the outcome document.77 Member and observer States have the opportunity to express views on the outcome document, as do NHRIs and NGOs.78 In reality, however, plenary dialogues during the first cycle have not resulted in substantive changes to outcome documents and this is likely to remain true during the second cycle of the UPR. This stage of the review process is often little more than a formality and might be characterised as somewhat of a rubber-stamping exercise. It nevertheless does stand as a further public commitment by the State under Review to take action on recommendations accepted by it and on voluntary pledges made.
III. Implementation of Recommendations, Pledges and Committments
The second main phase of each UPR cycle, which then feeds directly into the third stage of reporting for the subsequent cycle,79 addresses what is broadly referred to as ‘follow-up’ to the review and concerns itself with the implementation of recommendations, pledges and commitments. As a matter of implementation, the responsibility rests with the State under Review,80 although the modalities for the second cycle encourage States “to conduct broad consultations with all relevant stakeholders in this regard”.81 The Council’s institution-building package contains a commitment that the international community will assist – in consultation with, and with the consent of, the country concerned – in implementing recommendations regarding technical assistance and capacity-building.82 This undertaking has been carried through to the second cycle of the UPR83 and is complemented by the Voluntary Trust Fund for Participation in the UPR Mechanism and the Voluntary Fund for Financial and Technical Assistance described above.84
Recognising that one of the fundamental challenges for the second cycle of the UPR will be that of implementation, the International Commission of Jurists (ICJ) amongst others has advocated for the adoption of two mechanisms to assist and compel States to adequately implement recommendations of the UPR.85 The first is for the presentation to the Human Rights Council, as soon as possible after the adoption of the outcome document, of a national plan of action for the implementation of accepted recommendations and voluntary pledges and commitments. It has been suggested that such plans should be developed within 12 months of the adoption of the UPR outcome document and should include a clear timeframe and key milestones for implementation.86 During the review of the work and functioning of the Human Rights Council, this idea was identified as a voluntary mechanism that should form part of the second and subsequent cycles of the UPR.87 Regrettably, this proposal did not find its way into the outcome of the review of the Council and is thus not part of the revised modalities for the conduct of the UPR. Any adherence to this idea will therefore rely on the voluntary practice of States.
The second mechanism advocated for improvement in the implementation of UPR recommendations is to require States under Review to provide the Human Rights Council with a mid-term report on the status of the implementation of recommendations and commitments.88 This idea was a subject of much contention during the review of the work and functioning of the Council, with a number of States holding a firm position that mid-term reporting should not be compulsory89 and some States even proposing that such reporting should not form part of the UPR exercise.90 The compromise has been that, under the second cycle of the UPR, States are encouraged to provide the Council, on a voluntary basis, with a mid-term update on the implementation of accepted recommendations.91 As it is, only 22 countries provided written mid-term progress reports during the first cycle of the UPR.92 It is expected that this will present challenges for the second UPR cycle’s focus on the implementation of recommendations. Although some preliminary studies already point to a direct correlation between accepted UPR recommendations and the improvement of human rights on the ground,93 it is quite possible that many States may not consider the question of implementation until they come to produce their national report at the commencement of their second cycle review. To enhance this process, organisations such as the ICJ propose that national civil society actors should encourage their governments to produce mid-term reports and, where capacity allows, civil society should also coordinate their efforts to themselves produce ‘alternative’ mid-term reports as a lobbying tool.94
Bearing in mind the second cycle focus on the implementation of
recommendations and the identification of this as one of the
for the success of the UPR as a whole, two provisions of the Council’s
institution-building package –
as yet unused – should be noted. The
first is that, in considering the outcome of each review, the Council has the
to decide if and when any specific follow-up is necessary.95
Furthermore, paragraph 38 of Council resolution 5/1 provides that
exhausting all efforts to encourage a State to cooperate with the universal
periodic review mechanism, the Council
will address, as appropriate, cases
of persistent non-cooperation with the mechanism”. It is in the course of
and subsequent cycles of the UPR that these provisions may come into
play. In the case of States who have not implemented first
recommendations, or have only done so in respect of a minority of accepted
recommendations, it is suggested that second cycle
outcome documents should
identify specific follow-up action. Should the position remain unchanged in
subsequent reviews, States
under Review should be treated as falling within the
category of “persistent non-cooperation”. What is unclear, though,
is what steps might then be taken in this regard. The institution-building
package does not elaborate on this point. It might be
that the situation of human rights in such a State should be addressed in the
plenary of the Human Rights Council
under item 4 of its agenda.96
Albeit an imperfect process that continues to be marred by elements of selectivity, the State-led mechanism of Universal Periodic Review has opened the door to previously unavailable opportunities for dialogue and cooperation on the promotion and protection of human rights and fundamental freedoms on the ground. As well as presenting peers with the opportunity and obligation to review the situation of human rights in all Members States of the United Nations, the UPR mechanism has enabled civil society to engage more actively in national consultations, lobbying and in advocacy with UPR Working Group members. Although one of the primary areas of focus for the second UPR cycle is the implementation of accepted recommendations, developments in the human rights situation of the State under Review will continue to form an essential basis of review (including where this might relate to recommendations made in the first cycle that were rejected by the SUR); matters that will be highly relevant to the potential emergence of chronic human rights violations.
The need for acceptance of recommendations by a State under Review forms the
basis of valid criticisms of the UPR process, although
this consensus approach
can itself be used as a powerful tool for the international community to compel
States to act on the undertakings
made through the public acceptance of
recommendations. One of the fundamental challenges for the second cycle of the
UPR will be
that of implementation. The UPR will have to live up to the
expectations that it will in fact advance human rights on the ground,
translating the recommendations and commitments made under the first cycle into
measurable improvements. This will call for an
enhanced approach to the making
of recommendations by the UPR. Working Group, in order to ensure that future
precise, actionable and manageable in number, and more than
a simple statement of principle. Implementation will also rely on the
of practical measures by States, including the early formulation of a national
plan of action for the implementation of
recommendations and the presentation of
a written mid- term report on the status of implementation.
* Dr Alex Conte, Representative to the United Nations, International Commission of Jurists, Geneva, Switzerland.
1 Navi Pillay “Sharing Best Practices and Promoting Technical
Cooperation: Paving the Way Towards the Second Cycle of the Universal
Review” (opening statement to the Human Rights Council, 19th Session
Panel Discussion, Geneva, 21 March 2012).
2 “Informal Consultation for States Parties on Treaty Body Strengthening” (2-3 April 2012) Office of the High Commissioner for Human Rights <http://www2.ohchr.org/english/ bodies/HRTD/NewYorkConsultation2012.htm> .
3 GA Res 60/251, A/Res/60/251 (2006) at .
4 Ibid, at [5(e)].
5 Ibid. See also HRC Res 5/1, A/HRC/Res/5/1 (2007) at -; reaffirmed in HRC Res 16/21 (outcome of the review of the work and functioning of the Human Rights Council), A/HRC/ Res/16/21 (2011) at . Note that the latter outcome document was adopted by the General Assembly in its resolution 65/281, A/Res/65/281 (2011) at .
6 GA Res 60/251, above n 3, at [5(e)].
7 Marianne Lilliebjerg “The Universal Periodic Review of the UN Human Rights Council – An NGO Perspective on Opportunities and Shortcomings” (2008) 26 NQHR 311.
8 GA Res 60/251, above n 3, at .
9 GA Res 60/251, above n 3, at [5(e)].
10 GA Res 60/251, above n 3, at .
11 HRC Res 5/1, above n 5, at -.
12 See HRC Res 16/21, above n 5 and HRC Dec 17/119, UN Doc A/HRC/Dec/17/119 (2011).
13 Concerning the periodicity and order for the first cycle of the UPR, see HRC Res 5/1, above n 5, at -. The calendar of reviews for the first cycle can be found at <http://www.ohchr. org/EN/HRBodies/UPR/Documents/uprlist.pdf> .
14 HRC Res 16/21, above n 5, at -.
15 See the calendar of reviews for the second cycle, “Universal Periodic Review: Documentation” Office of the High Commissioner on Human Rights <http://www.ohchr.org/EN/HRBodies/ UPR/Pages/Documentation.aspx> [“UPR: Documentation”].
16 HRC Res 6/17, A/HRC/Res/6/17 (2007) especially at -. See also “Voluntary Fund for Participation in the Universal Periodic Review” (2 April 2008) Office of the High Commissioner for Human Rights <http://www.ohchr.org/EN/HRBodies/UPR/Documents/ NV VoluntaryTrustFundUPR.pdf> and “Terms of Reference for the Voluntary Fund for Financial and Technical Assistance for the Implementation of the Universal Periodic Review” Office of the High Commissioner for Human Rights <http://www.ohchr.org/Documents/ HRBodies/UPR/TOR _TF_for_TC_assistance_UPR.pdf> .
17 “Requests for financial assistance under the Voluntary Fund for Participation in the UPR Mechanism: As of 24 February 2012” Office of the High Commissioner for Human Rights <http://w w w.ohchr.org/EN/HR Bodies/U PR /Documents/ V PUFinancia lRequest.pdf> . See also “UPR Follow-up: list of countries that have requested assistance and/or are being supported as part of OHCHR on-going activities (as of 29 March 2011)” Office of the High Commissioner for Human Rights <http://www.ohchr.org/Documents/HRBodies/UPR/ UPR _followup_list_of_countries_being_assisted.pdf> .
18 HRC Dec 17/119, above n 12, at -.
19 HRC Res 5/1, above n 5, at  and HRC Res 16/21, above n 5, at .
20 HRC Res 5/1, above n 5, at [15(a)].
21 HRC Res 5/1, above n 5, at [15(b)] and [15(c)].
22 Walter Kälin, Cecilia Jimenez, Jörd Künzli and Mirjam Baldegger The Human Rights Council and Country Situations: Framework, challenges and models (Bern/Geneva, University of Bern, 2006) at 5.
23 HRC Dec 6/102, A/HRC/Dec/6/102 (2007), part I.
24 HRC Res 5/1, above n 5, at .
25 HRC Res 5/1, above n 5, at .
26 HRC Dec 6/102, above n 23, part I(A). See, for example, “National report submitted in accordance with paragraph 15(a) of the annex to Human Rights Council resolution 5/1: New Zealand” UN Doc A/HRC/WG.6/5/NZL/1 (2009) at  and .
27 HRC Dec 6/102, above n 23, at parts I(D) and (E). See, for example, A/HRC/WG.6/5/ NZL/1 (2009), ibid, at .
28 HRC Dec 6/102, above n 23, at part I(G) and HRC Res 16/21, above n 5, at .
29 HRC Res 5/1, above n 5, at [15(b)].
30 Compare compilation prepared by the Office of the High Commissioner for Human Rights, in accordance with paragraph 15(b) of the annex to HRC Res 5/1, A/HRC/WG.6/5/NZL/2 (2009) with Human Rights Council “Report of the Working Group on the Universal Periodic Review: New Zealand” UN Doc A/HRC/12/8 (2009) at [81.1], [81.3]-[81.7], [81.11], [81.12], [81.16], [81.17], [81.23], [81.24], [81.38], [81.39] and [81.58]. These recommendations concern themselves with the implementation of, or party status to, the universal human rights treaties, or with recommendations from the treaty bodies.
31 HRC Res 5/1, above n 5, at [15(c)].
32 Office of the High Commissioner for Human Rights “Working with the United Nations Human Rights Programme: A Handbook for Civil Society” UN Doc HR/PUB/06/10/ Rev.1 (2008) at 137 and “Universal Periodic Review: information and guidelines for relevant stakeholders’ written submissions” (2011) Office of the High Commissioner for Human Rights <http://www.ohchr.org/Documents/HRBodies/UPR/TechnicalGuideEN.pdf> at -  [“OHCHR Information and Guidelines”].
33 HRC Res 16/21, above n 5, at .
34 Including Colombia and the Russian Federation, for example. See Human Rights Council “Open-Ended Intergovernmental Working Group on the Review of the Work and Functioning of the Human Rights Council: Compilation of State proposals” UN Doc A/ HRC/WG.8/1/CRP.1/Rev.1 (2010) at 9 [“Compilation of State Proposals”].
35 HRC Res 16/21, above n 5, at  and “OHCHR Information and Guidelines”, above n 32, at .
36 See, for example, Human Rights Council “List of non-State observers’ contributions” UN Doc A/HRC/WG.8/1/CRP.2/Rev.1 (2010) at part I(B)(3) [“Non-State Observers’ Contributions”].
37 HRC Res 5/1, above n 5, at  and “OHCHR Information and Guidelines”, above n 32, at [6(c)].
38 HRC Res 16/21, above n 5, at  and “OHCHR Information and Guidelines”, above n 32, at [6(b)].
39 “OHCHR Information and Guidelines”, above n 32, at . This restriction does not include citation references.
40 “Web Accessibility Initiative” W3C <http://www.w3.org/WAI> .
41 “OHCHR Information and Guidelines”, above n 32, at .
42 “Contributions and participation of ‘other stakeholders’ in the UPR” Office of the High Commissioner for Human Rights <http://www.ohchr.org/EN/HRBodies/UPR/Pages/ NgosNhris.aspx> .
43 As required of the Office of the High Commissioner for Human Rights by HRC Res 5/1, above n 5, at .
44 “OHCHR Information and Guidelines”, above n 32, at .
45 HRC Res 5/1, above n 5, at .
46 HRC Res 5/1, above n 5, at  and .
47 HRC Res 5/1, above n 5, at  and .
48 As identified, for example, by Lilliebjerg, above n 7, at 313. See also Lawrence Moss “Opportunities for Nongovernmental Organization Advocacy in the Universal Periodic Review Process at the UN Human Rights Council” (2010) 2 J HR Prac 122.
49 As reflected in “Compilation of State Proposals”, above n 34, at 3-5.
50 HRC Res 5/1, above n 5, at [18(d)].
51 HRC Res 5/1, above n 5, at [18(d)] and .
52 Compare HRC Res 5/1, above n 5, at  and HRC Presidential Statement 8/1, UN Doc HRC/8/PRST/1 (2008) at  [“HRC Presidential Statement”] with HRC Dec 17/119, above n 12, at - and Annex II, and HRC Res 16/21, above n 5, at .
53 HRC Dec 17/119, above n 12, at -.
54 “HRC Presidential Statement”, above n 52, at -.
55 HRC Dec 17/119, above n 12, at . Compare with the first cycle allocation of 60 minutes under “HRC Presidential Statement”, above n 52, at .
56 HRC Res 5/1, above n 5, at ; “HRC Presidential Statement”, above n 52, at -; and HRC Presidential Statement 9/2, UN Doc HRC/9/PRST/2 (2008) [“HRC Presidential Statement 9/2”].
57 See for example, International Federation of Action by Christians for the Abolition of Torture “Universal Periodic Review: An Ambivalent Exercise” (2009) <http://www.fiacat. org/IMG/pdf/FIACAT_Rapport_UPR _2010_VA_VF.pdf> at 22-23; Roger Blackburn Cultural Relativism in the Universal Periodic Review of the Human Rights Council (Barcelona, Institut Català Internacional per la Pau, 2011); and Edward McMahon “Herding Cats and Sheep: Assessing State and Regional Behavior in the Universal Periodic Review Mechanism of the United Nations Human Rights Council” (2010) <http://www.upr-info.org/IMG/pdf/ McMahon_Herding_Cats_and_Sheeps_ July_2010.pdf> .
58 “HRC Presidential Statement”, above n 52, at .
59 “HRC Presidential Statement”, above n 52, at .
60 See for example, Human Rights Council “Report of the Working Group on the Universal Periodic Review: Thailand” UN Doc A/HRC/19/8 (2012) at  [“UPR Thailand”].
61 Human Rights Council “Report of the Working Group on the Universal Periodic Review: Egypt” UN Doc A/HRC/14/17 (2010) at [95(5)].
62 Ibid, at [97(2)].
63 Human Rights Council “Report of the Working Group on the Universal Periodic Review: Tonga” UN Doc A/HRC/8/48 (2008), at .
64 “Compilation of State Proposals”, above n 34, at 3 and 12.
65 HRC Res 16/21, above n 5, at .
66 Organisation for Economic Co-operation and Development “Phase 3 Monitoring Information Resources” OECD Doc DAF7INV7BR(2008)25/FINAL (2009) at .
67 See the outcome documents from the first cycle of the UPR mechanism, in the 1st to 12th sessions of the Human Rights Council Working Group on “UPR: Documentation”, above n 15.
68 See Addendum to Report of the Working Group on the Universal Periodic Review: New Zealand, UN Doc A/HRC/12/8/Add.1 (2009).
69 Human Rights Council “Report of the Working Group on the Universal Periodic Review: China” UN Doc A/HRC/11/25 (2009), compare  with .
70 Human Rights Council “Report of the Working Group on the Universal Periodic Review: Brazil” UN Doc A/HRC/8/27 (2008) at .
71 UPR Thailand, above n 60, at -.
72 Something recognised, for example, in: Human Rights Council 19th Session Panel Discussion on the UPR, above n 1, United Kingdom Statement for Panel on Technical Cooperation. See also Edward McMahon “The 2011 United Nations Human Rights Council Reform Process: The status quo prevails” (2011) <http://www.fes-globalization.org/geneva/ documents/Presentation_HRC%20Review_6-7Oct2011_McMahon%20notes.pdf at 4. See also “ Non-State Observers ’ Contributions ” , above n 36, at part I(F)(2)> .
73 “Non-State Observers’ Contributions”, above n 36.
74 HRC Res 5/1, above n 5, at - and HRC Res 16/21, above n 5, at .
75 HRC Res 5/1, above n 5, at  and “HRC Presidential Statement 9/2”, above n 56, at .
76 HRC Res 5/1, above n 5, at .
77 The provision of a written communication is called for in HRC Res 16/21, above n 5, at .
78 HRC Res 5/1, above n 5, at - and HRC Res 16/21, above n 5, at .
79 HRC Res 5/1, above n 5, at .
80 HRC Res 5/1, above n 5, at .
81 HRC Res 16/21, above n 5, at .
82 HRC Res 5/1, above n 5, at .
83 HRC Res 16/21, above n 5, at .
84 See also HRC Res 16/21, above n 5, at -.
85 International Commission of Jurists “Position Paper on the Review of the Human Rights Council” (3 February 2011) <http://www.icj.org/default.asp?nodeID=349 & sessID= & langag e=1 & myPage=Legal_Documentation & id=23691> at 2 (“ICJ Position Paper on the Review of the Human Rights Council”). See also “Non-State Observers’ Contributions”, above n 36, at part I(C)(2).
86 Amnesty International “Making it Work: The Reviews of the Human Rights Council” (2011) <http://w w w.amnesty.org/en/library/asset/IOR41/001/2011/en/d272fd2a-02e5-4ab7-bef6- d8d8e16ef 770/ior410012011en.html> at 17.
87 Working Group on the Review of the Work and Functioning of the Human Rights Council “Contribution by the Facilitator of the Universal Periodic Review Cluster” in Compilation of contributions in the context of the facilitation and coordination processes on the review of the work and functioning of the Human Rights Council (2011) <http://extranet2.ohchr.org/Extranets/ HRCExtranet/portal/page/portal/HRCExtranet/2ndWorkingGroupsessionontheReview. html> at [23(a)].
88 ICJ Position Paper on the Review of the Human Rights Council, above n 85, at 2. See also “Compilation of State Proposals”, above n 34, at 12; and “Non-State Observers’ Contributions”, above n 36, at part I(C)(2).
89 Including, for example, China and the Islamic Republic of Iran in “Compilation of State Proposals”, above n 34, at 12.
90 Including, for example, Azerbaijan and Bangladesh in “Compilation of State Proposals”, above n 34, at 13.
91 HRC Res 16/21, above n 5, at .
92 Argentina, Azerbaijan, Bahrain, Benin, Chile, Colombia, Costa Rica, Ecuador, Finland, Former Yugoslav Republic of Macedonia, France, Japan, Mauritius, Netherlands, Poland, Portugal, Romania, Slovenia, Spain, Switzerland, Ukraine and United Kingdom: See “UPR implementation (information provided by States)” Office of the High Commissioner for Human Rights <http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRImplementation. aspx> .
93 See for example, David Frazier “Evaluating the Implementation of UPR Recommendations: A quantitative analysis of the implementation efforts of nine UN Member States” (August 2011) <www.upr-info.org/IMG/pdf/david_frazier_paper_upr_implementation_2011-2.pdf> at 19.
94 International Commission of Jurists “The Human Rights Council’s Role in Monitoring ESC Rights” (seminar presented to the Geneva Academy of International Humanitarian Law and Human Rights, Geneva, 8 May 2012) (on file with the author).
95 HRC Res 5/1, above n 5, at .
96 Item 4 of the Agenda of the Human Rights Council relates to situations that require the Council’s attention.