1. Challenges and opportunities to improve human rights
1.1. Quick overview
Besides the number of international human rights treaties that have been ratified, the UPR has proven to be an effective awareness-raising and advocacy mechanism.
Above all, the UPR is an opportunity for civil society to discuss human rights issues with its State. For example, in Tonga, approximately 50 organisations took part in broad consultations organised by the government in preparation for its Review. In Costa Rica, recommendations on implementing a national plan of action created a discussion momentum between civil society and the State. In the United Arab Emirates, the government set up a new human rights department at the Ministry of Foreign Affairs thanks to the UPR. The number of new laws adopted in the aftermath of the UPR is strongly indicative of its potential.
Indeed, this study shows encouraging outcomes. Most strikingly, our research has found that at mid-term, approximately 40 percent of recommendations are either partially or fully implemented. In other words, 2 and half years after the Universal Periodic Review, States have started implementing 40 percent of their recommendations. Taking into account the huge number of recommendations
received during the thirteenth UPR session (approximately 150 recommendations per State) and the extent to which recommendations are being implemented at mid-term, the UPR is an effective tool to improve human rights situations on the ground.
In addition, according to our study of the States reviewed at the thirteenth UPR session, the States under review answered to 85 percent of recommendations received. While 100 percent should be the actual aim, it demonstrates that the UPR undoubtedly has emerged from its chrysalis.
This study will present the Follow-up Programme’s quantitative outcomes in Chapter Two, qualitative outcomes in Chapter Three, and perspectives and assessments on the thirteenth UPR session in Chapter Four. The methodology is explained in Chapter Five.
Geneva, October 2012
Contents
1. Challenges and opportunities to improve human rights ... 4
1.1. Quick overview ... 5
2. Two years later... ... 9
2.1. Basic facts ... 9
2.2. Implementation status ... 10
2.3. Implementation status by regional group ... 11
2.4. Implementation status by acceptance ... 12
2.4.1. Implementation of rejected recommendation ... 13
2.5. Implementation status for action ... 14
2.6. Implementation by issues ... 16
3. Case studies and best practices... 21
3.1. Malaysia... 23
3.1.1. MDGs and housing rights ... 24
3.1.2. National plan of action, civil society collaboration ... 24
3.1.3. Trafficking and migrants ... 25
3.1.4. Women’s rights ... 26
3.2. Chile ... 27
3.2.1. Indigenous rights ... 28
3.2.2. Trafficking and refugees ... 29
3.2.3. Women’s rights ... 29
3.4.2. Minorities ... 40
3.4.3. Following up UPR recommendations ... 42
3.4.4. Women’s rights – domestic violence ... 42
3.5. Mauritius ... 44
3.5.1. Human rights education and training... 45
3.5.2. Detention ... 46
3.5.3. Poverty ... 47
3.5.4. Women’s rights ... 48
3.5.5. Rights of the child ... 52
4. Beginning a brand new cycle ... 54
4.1. From a State under Review perspective ... 54
4.1.1. Reporting the implementation: rejected and unanswered recommendations ... 55
4.1.2. Reporting the implementation: updates provided on recommendations of the first cycle 56 4.2. From a recommending State perspective ... 58
4.3. Challenges for the second cycle ... 60
5. Methodology ... 63
5.1. Contacting every stakeholder ... 63
5.2. Implementation Recommendation Index (IRI) ... 63
5.3. Rejected recommendations ... 64
5.4. Data ... 65
5.5. Action categories of UPR Info ... 66
5.6. Liste of acronyms ... 67
2. Two years later...
The information provided within this report is unique. No such comprehensive research has ever been conducted on how UPR recommendations are implemented on the ground. Obtaining this information has required contacting every UPR actor from every country on every recommendation.
Basing our study on 253 contributions from civil society, 6 contributions from National Human Rights Institutions and 7 States’ mid-term reports, UPR Info is able to provide updated information on 3’294 recommendations out of 6’542 made to 66 countries reviewed. As a result of the comments stakeholders have provided us, 66 Mid-term Implementation Assessments1 (MIA) have been published in total, one per country which will be reviewed for the second time from January 2013 to April 2014.
Undoubtedly, quantitative assessments are limited in nature. Data presented within this study should be read with awareness that the UPR is a dynamic process and therefore the status of implementation is constantly changing: it is not a current state of implementation of every UPR recommendation, but rather an overall assessment on the implementation of UPR recommendations for one third of the world at mid-term. The aim is to shed light on the progress and practices achieved in alignment with advancing human rights through the UPR mechanism.
2.1. Basic facts
UPR Info developed an index categorising the implementation level achieved by the State for the recommendations received at the UPR. Every recommendation is assigned a level of implementation: not implemented, partially implemented or fully implemented based on the index criteria.
1 MIAs can be consulted at Follow-up Programme’s website: http://followup.upr-info.org/
“Not implemented” indicates that no action has been undertaken so far. “Partially implemented” means that the State has taken some action to improve the human rights situation. Finally, “fully implemented” reflects full compliance with a recommendation. This status is hard to achieve, and often denotes the ratification of international instruments since progress of such kind can be objectively and definitively measured.
2.2. Implementation status
Out of the 3’294 recommendations commented upon by stakeholders, 391 recommendations have been fully implemented (12.16 percent of the total), 859 have been partially implemented (28 percent) and 1884 have not been implemented at all. On 160 recommendations, the updates we have been provided with have not been useful in assessing the implementation status of the recommendation.
We need to be mindful that the implementation status highly depends on who commented upon the recommendation assessed. On some MIAs, domestic civil society did not participate in the Follow-up Programme, while the State provided ample data on the implementation. As a result, recommendations are usually assessed as either “fully” or “partially” implemented, since States rarely claim to be inactive.
In this chapter, only commented recommendations commented upon with the status of “fully”, “partially or “not” implemented are considered.
2.3. Implementation status by regional group
When it comes to splitting the implementation status by regional group, it is possible to find out which regions were active in implementation by mid-term.
At one extreme, Asia is the region where the least number of recommendations have been implemented. At mid-term, 81 percent were not implemented at all and 19 percent were either partially or fully implemented.
At the opposite end of the spectrum, in the Eastern European Group (EEG) is a region where only 35 percent of recommendations have not been processed at all, while 65 percent were implemented.
Generally speaking, at mid-term, only the Latin American and Caribbean Group (GRULAC) and EEG have begun implementing over half of recommendations (58 and 65 percent, respectively). WEOG was nearly to half (47 percent).
2.4. Implementation status by acceptance
Before the adoption of the Working Group report in the plenary session, States are encouraged to announce whether they accept or reject the recommendations they received. OHCHR tags State’s responses as either “noted” or “accepted”.
Unfortunately, while such a categorisation scheme has the great advantage of avoiding the fact that recommendations are rejected by States, it does not reflect the State’s real intention as expressed during the UPR.
Using categories internally employed at UPR Info2, we notice that accepted recommendations have more of a chance of being implemented (action was taken for 50 percent of them), and both rejected and recommendations with no response are barely taken into account by States. While this result is obvious (strong recommendations have less of a chance to be implemented), it confirms that data collected under the Follow-up Programme is correct.
2.4.1. Implementation of rejected recommendation
The previous figure demonstrates that even rejected recommendations are implemented, since action is taken for 15% of them (both fully and partially recommendations rejected but implemented anyway. If we take into account that this number is solely based on one third of countries worldwide (the scope of the Follow-up Programme), we could extrapolate that more than 150 UPR recommendations are or will be implemented even though they have been rejected by States.
There are two main ways to explain such implementation in spite of prior rejection:
1. States are scared of having such discussions at the international level, where the feeling of beeing inspected is acute; once back home, the international pressure is diluted, the framework is softened. Thus, States rejecting recommendations at the UPR keep their hands free and avoid to be bounded to obligations they are unsure whether they can be implemented. This is a precautionary principle;
2. Civil society seizes the opportunities raised by the UPR to engage a broad in-country discussion and to start a nation-wide advocacy using the media; in other terms, the UPR is a chance to trigger new debates.
It must be therefore noted that without the civil society action (both at international and national level), rejected recommendations would be hardly implemented.
2.5. Implementation status for action
The Action Category is a unique feature of UPR Info’s Database of UPR Recommendations. Developed by Professor Edward R. McMahon of the University of Vermont with the support of UPR Info, it creates a new approach to recommendations by looking into the type of action requested. It ranks recommendations on a scale from 1 (minimal action) to 5 (specific action)3.
This ranking scheme enables us to cluster recommendations by “strength”. During the entire first cycle, 35 percent of recommendations were of category 5, which denotes that approximately one third of the recommendations made at the UPR have the precision required to allow easy further monitoring. A recommendation asking to
Justice” would be of category 5; it is easy to evaluate, and if fulfilled, has the potential to remarkably improve the human rights situation. The latter kind of recommendation has to be promoted within the UPR system.
At mid-term, in between the two Reviews, as expected recommendations of category 5 are implemented the least, while recommendations of category 4 are more likely to be implemented. The “not implemented” status steadily decreases until category 1.
Recommendations of category 4 are 13 percent more likely to be implemented:
The least strong category (1) is the most likely to be implemented, as only 44 percent of them are not implemented:
The difference of implementation statuses depending upon the action category of the recommendation is outstanding. This leads us to conclude that the level of action entailed by a recommendation has a tremendous impact on whether or not it is implemented. Thus, when assessing the implementation of recommendations, action categories must be taken into consideration.
2.6. Implementation by issues
UPR Info’s database of UPR recommendations and voluntary pledges4 is a tool that enables stakeholders to quickly identify the issues pertaining to recommendations.
Through an exclusive list of 54 issues, every recommendation is tagged with one or several issues.
The most raised issues during the whole first cycle were the following ten:
As is evident from the chart above, “International instruments”, “rights of the child”
and “women’s rights” are by far the top three issues raised at the UPR.
Unsurprisingly, the very same triptych is found when assessing the implementation of recommendations at mid-term: 95 recommendations5 relating to “international instruments” have been either fully or partially implemented (plus 176 recommendations not implemented), 142 concerning “rights of the child” (88), and 208 regarding “women’s rights” (214). More recommendations lead to more implementation opportunities.
In more details and by regional group, in Africa the distribution remains very similar (“women’s rights”, “rights of the child”, but not “international instruments”), except that recommendations relating to “technical assistance” emerge:
5 As recommendations can pertain to many issues (“ratifying CEDAW” is both international
instruments and women’s rights), percentage cannot be used in following figures.
Asia (the regional group which implemented the least number of recommendations), has several recommendations concerning “torture and other CID treatment” which were implemented at all, but shows interesting improvements on “special procedures”:
Asia: implementation status for the 10 first issues
Asia - fully impl.
Asia - partially impl.
Asia - not impl.
The Eastern European Group has an encouraging implementation record on
EEG: implementation status for the 10 first issues
EEG - fully impl.
EEG - partially impl.
EEG - not impl.
In GRULAC, “justice”, “NHRI” and “indigenous peoples” are the main topics evolving beside the three recurrent issues:
GRULAC: implementation status for the 10 first issues
GRULAC - fully impl.
GRULAC - partially impl.
GRULAC - not impl.
Finally, in Western Europe and Other Groups, “racial discrimination”, “migrants”,
“minorties” and “treaty bodies” are on track:
22
WEOG: implementation status for the 10 first issues
WEOG - fully impl.
3. Case studies and best practices
In a more qualitative approach, we selected 5 States (one per regional group, namely Chile, Malaysia, Mauritius, Portugal and Romania) in order to extract how they addressed the recommendations on the ground, and to closely explore which improvements have been achieved. We picked some of the best records, aiming at showing the best examples and sharing best practices. All data is extracted from the Mid-term Implementation Assessments which are available on UPR Info’s Follow-up Programme website6.
Generally, we can learn from the five countries selected that several measures are taken with a view towards addressing women’s rights. Portugal has ameliorated the administration and its “victim protection system” through enhancing and easing administrative support, monitoring domestic violence cases and facilitating access to women’s shelters. The recognition of victim status is core in Portugal’s view, and a recently created Commission can financially support the victims. Mauritius looks to build further shelters, to provide administrative support and to grant financial allowance to victims similarly to Portugal. In addition, Mauritius engaged domestic religious bodies in order to implement raising-awareness programmes. The Ministry of Labour also severely fines the perpetuators of sexual harassment, and removed discriminatory provisions “prescribing wages on a gender basis”. Malaysia aims at ensuring that 30 % of women participation in corporate boards is reached by 2016;
the country increased full-paid maternity leave for female government servants to 3 months, and appointed two female Sharia judges. Finally, Chile created women’s shelters and introduced a law punishing femicide.
Both Romania and Portugal are running housing programmes for the Roma communities. Romania states that a number of school seats are specifically reserved for young Roma and looks to enlist Roma in entrance exams for Police schools. With the support of the European Social Fund, the National Agency for
6 Internet address is the following: http://followup.upr-info.org
Roma dedicated € 25 million to improve Roma participation in the labour market through a holistic approach covering training and diversification of job opportunities.
Portugal launched a pilot project where Roma mediators are trained and placed in local services and facilities in order to improve the access of the communities to such services.
On the trafficking scourge, Malaysia aims to avoid mistakes leading to the misidentification of trafficked persons as migrants. With the support of UNHCR, the State started biometric registration of refugees and asylum seekers. Chile established a “Commission for the recognition of the refugee status” and codified the illicit trafficking of human beings, enabling the country to be more effective in both prevention and criminal prosecution. In Mauritius, the country began intensifying the training of police officers and further conducts crackdown operations. It is worth noting that Chile and Mauritius took measures to address the problem both upstream and downstream.
With regard to rights of the child, Chile forbade under certain circumstances night work for children under 18 years old, and enacted a law on child pornography and sexual harassment of children. Chile also developed social awareness-raising projects and through specialised intervention programmes impacted 7730 children and adolescents. Romania, aiming at reducing the phenomena of school dropout and absenteeism, has developed programmes supporting education of disadvantaged groups and has begun to offer financial support and school transport. It rehabilitated educational facilities and started to build new educational units. Mauritius led several measures to address child issues. Police officers teach children about child abuse and rights of the child in schools. Communities are sensitised on child abuse with a view to empower those communities, and in high risk areas, a surveillance mechanism has been set up. Child under the age of 16 cannot be employed. Officers
3.1. Malaysia
Malaysia’s mid-term assessment demonstrated a strong commitment of the State to implement recommendations. One quarter has not been implemented, one quarter has been fully implemented, and half has been partially implemented. Stakeholders have commented upon 118 recommendations out of 147.
28 per cent of recommendations received and commented upon in the MIA were of action category 5:
According to Malaysian national stakeholders, mainly the Human Rights Commission of Malaysia (HRCM), several achievements have been noticed.
3.1.1. MDGs and housing rights
Malaysia has already achieved or is on track to reach many of the Millennium Development Goals (MDGs) and targets by 20157. The Tenth Malaysia Plan (2011-2015) commits to allocating 30 per cent of the country’s development expenditure to the social sector so as to achieve greater participation by groups that are most in need, especially the bottom 40 per cent households, and provide equitable access to basic infrastructure and services8.
The Malaysian government launched the “My First Home Scheme” in March 2011 providing an opportunity to those under the age of 35 earning not more that RM 3,000 a month to own their first house. In the 2011 National Budget, the Government announced that RM568 million will be allocated to build 300 housing units under the Urban Housing Assistance Project, 79,000 units under the People’s Housing Programme and 8,000 units under the Rental House Assistance Project. An additional allocation of RM50 million has also been set aside to assist estate workers to own a house under the Low Cost Housing Fund Scheme9.
3.1.2. National plan of action, civil society collaboration
The government of Malaysia agreed to develop a National Human Rights Action for Malaysia in 2010. It appointed the Legal Division of the Prime Minister’s Department as the focal agency to develop the plan. It conducted a Post-UPR Briefing Session
suggestions pertaining to the UPR follow-up. In addition, in April 2011 the government participated in a Briefing Session on the UPR Follow-up jointly facilitated by the [Human Rights Commission of Malaysia] and the [OHCHR] [...]. A similar briefing session had also been conducted for members of CSOs on the same day.10
Based on its discussion with various stakeholders on the UPR follow-up issues, the [Human Rights Commission of Malaysia] [observed] that there is a need for the Government to enhance its engagement with the CSOs through more regular dialogue or briefing sessions in order to promote greater understanding among the civil society of the progress of UPR implementation as well as the possible role of various stakeholders could play in supporting the implementation of the UPR at both national and levels11. Such meetings are very much needed, as they enable to exchange views and suggestions pertaining to the UPR follow-up among States and stakeholders.
3.1.3. Trafficking and migrants
The [Human Rights Commission of Malaysia] has been involved in drafting the National Strategic Plan on Anti-Trafficking in Persons (2010-2015) [...], in its capacity as one of the members of the Council for Trafficking in Persons and Anti-Smuggling of Migrants12.
Various measures were undertaken by the Government to avoid misidentification of trafficked persons as irregular migrants. They include: providing training courses for prosecutors and enforcement agencies as well as the development of a Standard Operating Procedures.13 Government has commenced biometric registration of refugees and asylum seekers registered with the UNHCR14.
10 Ibid.
11 Ibid.
12 Ibid.
13 Ibid.
14 Malaysian Bar Council, op. cit.
3.1.4. Women’s rights
The government of Malaysia took numerous measures in order to promote gender equality, notably15:
• Enforcement of Work Regulations (Part-time Workers) 2010 under the Employment Act 1955 to provide flexible working arrangements;
• Providing training to develop women entrepreneurs;
• Continued effort to mainstream the interests and concerns of women, children and PWDs at all levels through policy formulation and programme planning and legislation;
• Appointment of two female Sharia judges in May 2010;
• Appointment of two female Sharia judges in May 2010;