Phase 3

The 3rd phase is where the draft report of a State under Review is adopted by the Human Rights Council during its plenary session following the review. One hour is given to this. The reviewed State responds to the recommendations presented and declares whether it accepts or rejects them (if not already declared), sometimes providing further information that clarifies the situation in its country.

Strengths: During the two months or so between the interactive dialogue and the acceptance of the report, there is opportunity for recommending states and civil society to lobby for their particular issue to be accepted by the state, if it has not already declared so. This interim period is useful, enabling further lobbying where it may be required.

Whilst the UPR is a peer review, the opportunity is given at the end of the process for NHRIs and NGOs to comment on the process. This, at least, gives these institutions a voice to pass on their views about the recommendations put and about the State’s response to them.

Weakness: Some states do not make their intention clear regarding their acceptance or otherwise on the recommendations or say that the recommendation has already been implemented. The regulations around this point could be tighter, ensuring that clear positions are declared, as well as giving reasons for non-acceptance. Under the present rules, this is not required. Those recommendations that do not enjoy the favour of the State simple have to be noted (OHCHR, 2007, A/HRC/RES/5/1).

A concern around this matter has been raised by the ISHR’s Quarterly (2012, 1) article, regarding Syria. At the adoption of Syria’s draft report, Syria claimed that 27 of the 179 recommendations received had already been implemented. However, a number of states, including the UK and the USA, objected to this claim. Norway, too, stated that it considered its recommendation to immediately release all those arbitrarily detained in Syria, had not been implemented. Here ISHR’s Quarterly warns against the practice of states accepting recommendations on the claim that the issue is being or has already been implemented when there is clear evidence to suggest otherwise. It highlights a significant weakness in this part of the UPR process.

When a state does not declare its position on a recommendation, it is hard to know if it intends to do something about it or not. An example is with the Democratic People’s Republic of Korea.

The DPRK’s review was held in Session 6 (December 2009) and the State received 167 recommendations. At the time of adopting the report, the State rejected 50 of these recommendations and gave no clear position on the remaining 117. A News bulletin by UPR Info on 19th March 2010 remarked that before the adoption of the report Norway requested clarification on which recommendations the State has accepted. A break was called for, then on resumption, the delegation from the DPRK restated that it was taking note of these 117 recommendations without further explanation (http://www.upr-info.org/+DPRK-first-and-only-State-to+.html). Hence no recommendation at all had been identified by the DPRK as being accepted. Likewise, Lawrence Mushwana, the Chairperson for the South African Human Rights Commission (SAHRC), noted that South Africa gave no clear response to any of its recommendations (Mushwana, 2011). Clearly there seems to be a lack of accountability at this juncture of the proceedings and this sort of response by the DPRK signals a weakness in the process.

47 4.5.4 Phase 4

This is a critical phase in the UPR process and so far it has been relatively untested. It is the 4½ year period between reviews. An analysis of some reports from Session 13 (i.e. the second round of the UPR) in the next chapter examines this aspect. Unless close monitoring of UPR recommendations occurs during this phase, the danger is that not much will happen and states will go about their business as usual.

Strengths: The fact that there is only just over four years to fulfill the recommendations accepted by the State has the potential of addressing many human rights issues more quickly than has happened in the past. States would want to give a good report card when they come for their next review and so this short timeline is seen as a positive element in the mechanism to make things happen quickly.

This implementation phase also has the potential for governments, NHRIs, NGOs and civil society to work together to effect change, as well as bringing like-minded NGOs together to work as a coalition in monitoring the government’s efforts of implementation. Such a case can be seen with the South African Human Rights Commission. Mushwana (2011) outlines his Commission’s plan: “The SAHRC is engaging in post-UPR activities [by] encouraging the state and civil society to engage with the UPR and the international human rights system; main streaming UPR recommendations into the Commission’s overall work, and aligning its work and programmes with specific UPR recommendations”.

Weaknesses:

As already mentioned, this phase is yet to be fully tested, so it is not clear how effective the UPR will be in speeding up the implementation of human rights on the ground. At this point in time, the UPR is not widely known by the general public in many countries. More media attention needs to be given to make it better known. As well, there is no obligation for states to work with civil society in the follow-up. Sultana Kamal, Executive Director of the NGO Ain o Salish Kendro, Bangladesh, informs us that

unfortunately, the Bangladesh Government categorically only accepts information and/or recommendations received through its own channels. It depends on its intelligence agencies and civil servants rather than on citizens’ groups or NHRIs.

… the UPR process has failed to create a sense of ownership which should exist amongst the public as well as state authorities (Kamal, 2011).

4.5.4.1 The Role of NGOs and NHRIs in Phase 4

A significant group among monitoring bodies in this follow-up phase are national and international NGOs and national human rights institutions (NHRIs). Initially the UPR was relatively unknown by most NGOs but in the latter days of the 1st cycle there have been encouraging signs of greater NGO awareness and involvement in the process. NGO monitoring of UPR recommendations can play a major role in the 4th phase and provides the opportunity for NGOs to collaborate closely with the government. An NGO can establish good relationships with its local MPs or with the ministers who are responsible for an area that concerns them.

In terms of monitoring, there are various ways this can happen. The research conducted by Renshaw (2010) involved interviewing several national and international NGOs. In response to a question about ways of monitoring the implementation process, he quotes one NGO as saying: “We will be following up through a systematic analysis of progress (policies and

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practices) regarding thematic issues brought up in its review. We will be monitoring the indicators and meeting with the government.”

Another NGO reported that:

Each year, we produce a ‘State of Children’s Rights’ report, which monitors the government’s progress on implementing the most recent Concluding Observations from the UN Committee on the Rights of the Child. The report covers changes in the law or national policy; new statistics and major research findings; conclusions and recommendations (where explicitly relevant) from a human rights monitoring body or parliamentary committee; legal judgments, the views of children, and so on. The UPR recommendations affecting children are all picked up here (Renshaw, 2010).

NHRIs can also have a prominent role in promoting the success of the UPR at the follow-up stage. In a publication by the Danish Institute for Human Rights on the 1st cycle of the UPR, Christoffer Badse (2010) claims that NHRIs are in a unique position in that they are state funded entities established by an act of the state but at the same time independent from the government, making them a natural focal point at the national level by linking several actors such as state and civil society to work together on the accepted recommendations. Badse makes the suggestion that NHRIs should appoint a UPR Liaison officer among staff at the NHRI and make that person the focal point for inquiries and dissemination of information about the UPR and its follow-up.

4.5.4.2 Mid-term Reporting

In the resolution adopted by the General Assembly on the review of the Human Rights Council there is encouragement for states to submit a mid-term report to the HRC but it is not mandatory (General Assembly Resolution 281, A/RES/65/281, 2011). Some states have taken up this initiative and it is hoped that more will follow their example. Unless there is some self-monitoring as well as external self-monitoring of accepted recommendations, the concern is that not much will happen during Phase 4.

Some NHRIs and NGOs have adopted this practice as well. An examination of some mid-term reports – either by the states themselves or by NGOs – provides different perspectives. For example, Bangladesh accepted the recommendation from Australia to “take measures to ensure the independence of the judiciary” (OHCHR, 2009, A/HRC/11/18). Bangladesh has not submitted a mid-term report but some NGOs have. In this instance the NGO ‘UPR-HR Forum’

notes some improvements as well as its concerns:

The government has established judicial service commission to appoint judges for the lower judiciary, appointed number of judges both for the higher and lower judiciary. The higher judiciary has taken some initiative for rapid hearing of long pending cases. Submitting the wealth statement by 17 judges of the High Court including the former Chief Justice is a welcome step. However, independence of judiciary is still not fully functional as no separate secretariat has been established for the judiciary and thus appointment; transfer etc. of the judges of lower judiciary is still administered by the Law ministry. Serious controversy arose in appointing judges for the High Court including the Chief Justice bypassing seniority. Controversy arose due to withdrawal of cases on political consideration, where in the process followed he claimed to be transparent.

President's clemency to the convicted in murder cases due to political

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consideration also seriously undermined the rule of law. (http://www.upr-info.org/followup/index/country/bangladesh)

Another recommendation from Australia, accepted by Bangladesh, was to “take steps to further strengthen the National Human Rights Commission and the Anti-corruption Commission to ensure that they will be able to operate independently and effectively” (OHCHR, 2009, A/HRC/11/18). In its mid-term report, the NGO ‘Unrepresented Nations and Peoples Organization’ (UNPO) claims that:

While the creation of the NHRC and its role in fact-finding missions is a positive step, indigenous communities affected by targeted violence (including arson attacks) feel that little practical help has been offered to victims. NGOs are concerned that the Bangladeshi government has not followed up with full and impartial investigations to such attacks. This includes repeated threats of violence towards individuals who submit complaints (or attempt to) and the apparent uncooperative behaviour of police, whose impunity exacerbates the situation for indigenous peoples (http://www.upr-info.org/followup/index/country/bangladesh).

Clearly, Bangladesh has made efforts to act on these recommendations but the steps don’t go far enough, according to the above two NGOs. Such mid-term reports would give the government a timely reminder about its responsibilities towards implementing the recommendations accepted at the UPR.

States that submit a mid-term report show a genuine effort to implement the recommendations made at their Review. Often enough where reports are also received from NGOs, there is general congruence with each other’s view. Take Norway for example. On the issue of juvenile justice, Mauritius recommended Norway to “face up to the challenges and establish appropriate measures to deal with the situation of children in the juvenile justice system, taking fully into account the best interest of the children concerned and ensuring their smooth reintegration into society” (OHCHR, 2010, A/HRC/13/5). Norway has provided an extensive comment in its mid-term report on this issue:

The Government’s goal is that no minors shall be imprisoned, and efforts are under way to increase the use of alternatives to imprisonment. This is in accordance with the provisions of the Convention on the Rights of the Child stating that children may only be deprived of their liberty as a measure of last resort, when all other alternatives have been considered and found to be inadequate.

In order to reduce the number of juveniles in prison, the Government proposed a bill in summer 2011 to introduce a new sanction for juveniles aged 15 to 18 years who have committed serious or repeated crimes, the “juvenile sentence”. In such cases the sanction will be implemented locally, in the community where the convicted person lives. Social control, in the form of close follow-up, will then replace the physical control that would be exercised in prison.

The juvenile sentence will involve close contact between the offender, their personal network, various levels of the justice sector and other public bodies, all of which will be part of an individually adapted follow-up programme. The victim may also be involved if he or she is willing. For the youngest offenders, maximum use is to be made of the community sentence system. The amendment was passed by the Storting in December 2011, but has not yet entered into force.

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In the above-mentioned bill the Government also proposed several other legislative amendments to strengthen the legal rights of juveniles in conflict with the law. The following amendments entered into force in January 2012:

• Minors may only be remanded in custody in cases where it is “compellingly necessary”.

• A shorter time limit for bringing a juvenile before the court has been introduced: in the case of minors whom the police consider should be remanded in custody the minor must be brought before the court as soon as possible and at the latest on the day following their arrest.

• The police now have a duty to notify the municipal child welfare service if it is considered necessary to apply for remand in custody of a person under 18 years of age.

• A representative of the child welfare service must attend the remand hearing and provide information on the appropriate measures and their preparation.

• The conditions for remanding a minor in custody must be reviewed at least every two weeks.

In order to avoid the imprisonment of juveniles together with adults and to ensure better detention conditions for this group, a trial project is currently being conducted in which separate prison units are being established for young offenders. Two separate units are to be established, with a total of 10 places.

One of these, in Bergen, has been operational since 1 September 2009 and the other, in eastern Norway, is being planned. The project will be evaluated during and after its completion. (http://www.upr-info.org/followup/index/country/norway)

On the same issue the Norwegian Ombudsman for Children (BOC) submitted his own mid-term report. His comments follow.

Partially done. The Government has made several changes regarding juvenile justice. New legislation has already taken effect and is expected to take further effect during 2012. This legislation's aim is amongst others to reduce the number of juveniles in prison. Where prison is the only opportunity, Norway is developing alternative units for convicted juveniles, "juvenile units". In these units the juveniles are separated from the adults, they are given proper care and education, activities and therapy. The prison in Bergen has one such unit with 2 places. Bergen is supposed to have 4 places, and we are waiting for the remaining 2. We are also waiting for the remaining unit, which is supposed to be located in the South-East of the country. This unit will have 6 places.

(http://www.upr-info.org/followup/index/country/norway)

In spite of the above-mentioned reports, the Norwegian Centre for Human Rights (NCHR) in its mid-term report claims that “Norway still places children in police arrests with stripped cells - too often, too long and without considering the best interest of the child. Norway still have challenges also in creating better solutions for the children placed in custody and serving time in jails” (http://www.upr-info.org/followup/index/country/norway). So while there is concurrence with a state’s mid-term report by NHRIs or NGOs, there are also views that can offer a different picture. Such reports contribute to healthy monitoring during this phase.

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CHAPTER V

Children’s Rights in the UPR

Chapter Summary

This chapter analyses the UPR from the perspective of Child Rights. It considers an overview of children’s rights in the 1st cycle of the UPR, making reference to those which are most commonly raised and the states that champion children’s rights. The quality of recommendations is then considered, ranging from those that are very general to those that are sharp and call for specific actions from the SuR. The proportion of children’s rights accepted, rejected or ‘no clear position taken’ is examined and a comparison is made between the number of Child Rights recommendations from the 1st Session with those in the 13th Session. As well, some regional groups are examined to see if there are any differences between regions over children’s rights.

The previous chapter studied the 1st cycle of the Universal Periodic Review as a new mechanism of the HRC and evaluated how states have responded to it. Overall, there have been encouraging signs emerging. As a ‘peer review’ the UPR has enabled states to put recommendations in a cooperative way with the end goal being to promote and protect human rights on the ground. All states are reviewed and this is a savory aspect of the review – everyone knows that they will have their turn! This element adds to the view that it seems to be treated respectfully and with all seriousness.

This chapter considers the UPR from the perspective of Children’s Rights to determine whether or not Children’s Rights are significantly weighted within the human rights agenda of the UPR.

An investigation is done to see whether any states prioritize Children’s Rights over other rights and to identify them since it would be these states that will help bring about change for children on the ground. NGOs would also want to know who these states are so as to collaborate with them in raising Children’s Rights at the UPR.

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52 5.1 Children’s Rights in the 1^st cycle

As noted in Chapter IV, Children’s Rights constitute 16.1%¹² (i.e. 1/6th) of all rights raised in the 1st cycle, just behind International Instruments (19.8%) and Women’s Rights (17.3%). Whilst 16.1% may not seem all that high, in fact it shows that Child Rights feature very strongly among the vast range of human rights issues raised at the Review. If ‘Child Rights’ were given equal hearing among the list of 54 different human rights categories provided by UPR Info’s database, then they would count for only 1.9% of mentions, where as it is more than 8 times this amount.

The table below provides the total number of recommendations presented for each session of

The table below provides the total number of recommendations presented for each session of