Chapter Two outlined the current international system of protection of human rights in the
administration of justice in order to assess the role the UPR could play in raising the profile of human rights in this area. For the reasons summarised below, the IBAHRI concludes that the UPR has the potential to foster an effective, ongoing interchange by strengthening the cooperation and dialogue between governments and the legal community. On the one hand, states are in the driving seat in relation to enhancing the implementation of international standards in the administration of justice.
On the other hand, the legal community can play a strategic role in the implementation of these recommendations, especially those concerning law reforms and the administration of justice.
From international human rights recommendations to political commitments In an increasingly complex international system, the role of the Special Rapporteur on the
independence of judges and lawyers is key to consolidating the interpretation of the large number of standards governing the administration of justice and building the unity of the system. First, the Special Rapporteur and the treaty bodies, by referring jointly to the UN Basic Principles and Guidelines, and Article 14 of the ICCPR, unified these instruments into one body of norms the states must observe in the administration of justice. The Special Rapporteur also consolidates the jurisprudence and recommendations of treaty bodies, as well as other special procedures, such as the recently established Special Rapporteurs on counterterrorism and transitional justice. At the same time, the Special Rapporteur monitors progress and guides states in the implementation of international standards, by identifying good and bad practices.
The UPR is often presented as the political counterpart of the legal expert bodies of the UN system, in charge of facilitating the recommendations of other mechanisms. It is this unique forum where states, rather than expert bodies, review the human rights situation of their peers. In order to make recommendations to foster human rights on the ground, states are expected to use and refer to international norms and good practices identified by special procedures. Following ‘a-learning-by-doing’ approach, the UPR has the potential to foster the appropriation by states of international standards, like those governing human rights in the administration of justice. It may also create a ripple effect, which might help facilitate the creation of customary rules, through the repetition of similar recommendations by a number of states over time. The IBAHRI observes that the UPR constitutes an avenue to enhance standards and create new ones. It also has the potential to
consolidate a consensus over missing elements in the current international human rights framework.
This could be the case in the recognition of the role of national bar associations in maintaining the rule of law and protecting the necessary independence of lawyers and promoting law reform not only in making submissions to government but also in contributing to the education of civil society.
From political commitments to legal implementation
Since the UPR is an intergovernmental process, the UPR recommendations are tantamount to political commitments, directed as such at the executive.
At the same time, the participation of the relevant stakeholders in the implementation of the recommendations is key to ensure compliance and monitoring. Strengthening the institutional human rights framework of a country is a key requisite for enhancing human rights on the ground.
The legal community can also play a key role, first and foremost, in the implementation of the recommendations touching aspects of the justice system, the fight against impunity and access to justice. The legal community should also inform law reform and ensure that the legal framework aligns with the constitution and the international legal obligations of the country. An independent and well-trained legal profession is necessary to ensure that democratic changes are sustainable.
In others words, if bringing human rights in the intergovernmental arena fosters political will, the involvement of legal experts and practitioners fosters compliance on the ground.
In light of the above, the IBAHRI recommends that:
• states under review to involve the judiciary and professional organisations of lawyers in the implementation and monitoring of international human rights recommendations, including the UPR recommendations, especially relating to the administration of justice and legal reforms. The IBAHRI also recommends states under review to refer to the landmark cases of the highest judicial instances concerning human rights held in their country, while reporting to the UPR;
• states pay specific attention to the information coming from lawyers’ associations on the status of human rights in the administration of justice, when assessing a state’s human rights situation. The IBAHRI also recommends these states to foster the establishment of a national independent, self-governed and self-regulatory bar association to be the primary institution charged with protecting the legal profession and fostering lawyers’ engagement in the protection of the rule of law and human rights; and that
• lawyers and lawyers’ associations to engage actively in monitoring the independence of judges, lawyers and prosecutors with the HRC, and take part in the UPR process. The IBAHRI also encourages further exchanges on human rights issues and related case law between national bar associations and members of the judiciary, especially between countries receiving similar recommendations at the UPR.
Chapter Three
The ‘Administration of Justice’ in the UPR
Recommendations: Quantitative and Qualitative Insights
The UPR was originally established as an ‘action-orientated’ process,146 which would generate concrete solutions to a specific problem and be dedicated to improving human rights on the ground.147 To determine whether these standards have been upheld, Chapter Three provides an overview of the about 1,300 recommendations relating to the independence of judges, lawyers and prosecutors, which were made by 133 states over the first 19 sessions of the UPR. The total number of recommendations made during this period, from 2008 to 2014, was 38,298.
More specifically, the following paragraphs discuss:
• human rights issues in the administration of justice that were addressed in states’
recommendations, and those that were not;
• the progressiveness and action-orientation of recommendations relating to the administration of justice from a human rights-based approach; and
• the level of cooperation by the states in accepting and implementing recommendations relating to the administration of justice.