As noted earlier in this paper, McMahon (2010) claims that the UPR is not regionally driven but rather, states make their recommendations largely on an individual basis. His contention is that
“by contrast to other functions of the HRC and UN General Assembly where regional affiliations and loyalties ‘lock-in’ North-South conflict, the UPR recommendations process emphasizes bilateral, state-to-state relations.” McMahon’s view is that states have greater freedom to make decisions and act apart from regional affiliations. This is a positive aspect to the UPR.
Nonetheless, are there any differences between regions regarding children’s rights in the UPR?
Below is an analysis that considers this question. Table 9 summarizes an analysis of the data and shows the number of Child Rights recommendations received per region (column 2), the average number of Child Rights recommendations per region (column 3), and the number of recommendations put per region (column 4).
TABLE 9 Regional Groups and Children’s Recommendations at the UPR
REGION SuR Recommendations
received per SuR
Recommending States
Africa 1186 (34.5%) 22 332 (9.7%) Asia 886 (25.7%) 16 515 (15.0%) EEG14 375 (10.9%) 16 633 (18.4%) GRULAC15 580 (16.9%) 18 647 (18.9%) WEOG16 415 (12.1%) 15 1280 (37.2%)
Observer States17 0 35
TOTAL 3442 3442
The percentage of UN member states that belong to each regional grouping have been provided by McMahon (2010) in his commentary, namely:
Africa = 53 countries, approximately 28% of the UN membership Asia = 54 countries, approximately 28% of the UN membership GRULAC = 33 countries, approximately 17% of the UN membership WEOG = 28 countries, approximately 23% of the UN membership EEG = 23 countries, approximately 12% of the UN membership
An analysis of these figures shows that the African group receives considerably more Child Rights recommendations than the other groups, an average 22 per state, and that this group makes the least number of Child Rights recommendations compared to the other regional groups. On the other hand, the Western European and Other Group of States (WEOG) puts the most number of Child Rights recommendations – more than twice the number for any other group. A number of deductions can be drawn here:
14 EEG = Eastern European Group of States.
15 GRULAC = Group of Latin American and Caribbean States.
16 WEOG = Western European and other States Group.
17 Observer States = Palestine and the Holy See.
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• that African nations have more Child Rights issues than the other groups;
• that African nations are less inclined to make Child Rights recommendations at the UPR, perhaps because they are reluctant to make recommendations to other states on issues that are a concern in their own country;
• that WEOG States are much more inclined to put Child Rights recommendations than any other group;
• that Apart from the African Group, all other groups receive about the same number of Child Rights recommendations as each other.
What conclusions can be drawn from this? Whilst McMahon claims that states do not align within regional groups in the UPR process, the results show that WEOG, as a group, leads the way in championing children’s rights, well ahead of the other groups. One could conclude that WEOG members are more inclined to promote and protect children’s rights than others.
Another conclusion that could be drawn is that there are more children’s rights issues in African states than for other groups. Given that many African states are amongst the poorest in the world and that there are situations of unrest in a number, this finding is not surprising, since poverty and internal conflict affect the most vulnerable amongst the population, namely, women and children.
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5.7 Children’s Rights Accepted, Rejected or No Clear Position Taken
An analysis of the total number of children’s rights put as recommendations in the 1st cycle shows that they are more likely to be accepted than other categories. During the 1st cycle, 73.1% of all recommendations were accepted, whereas 83.3% of Children’s Rights were accepted. Only 7.5% were rejected as against 14.9% of all recommendations rejected. One reason for this could be that Children’s Rights are politically safer issues to present as recommendations to SuRs.
The table below provides a summary of accepted, rejected, or no clear position given, with respect to Child Rights’ recommendations compared to the total number of recommendations put during the 1st cycle.
TABLE 10 State Responses: A comparison between Child Rights’ recommendations and the total number of recommendations put during the 1st cycle
1st Cycle
All Recommendations
Child Rights Recommendations
Accepted 15613 73.1% 2867 83.3%
Rejected 3181 14.9% 259 7.5%
No Clear Position
2559 12.0% 316 9.2%
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Renshaw’s studies (2010) show that among children’s rights corporal punishment is the one either most rejected or where no clear position is given. In many countries corporal punishment is still widely accepted and in such cases it can be difficult to impose an outright ban.
International pressure, however, is prompting these states to think more seriously about it.
Renshaw points out that of the 72 recommendations made on this issue during the first seven sessions, only 50% were accepted and 30% were rejected. Whereas, in contrast, he notes that of the 257 recommendations proposed on education, only 4 % were rejected. This data seems to support the conclusion that corporal punishment is a challenging issue for a number of states.
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5.8 Children’s Rights: An examination of States under Review a second time round Session 13 saw the beginning of the 2nd cycle of reviews, in May 2012. A decision of the HRC was that the order of review would remain the same as for the 1st cycle but with only fourteen states reviewed per session instead of the original sixteen, due to the extension of each review from 3 hours to 3½ hours (OHCHR, 2011, A/HRC/DEC/17/119). The last two states from Session 1 (Czech Republic and Argentina) have been moved to Session 14, due in October 2012.
TABLE 11 A comparison between Session 1 (2008) and Session 13 (2012) for the same group of States
State under Review
(In order of review)
Participating States Recommendations put (*CR = Child Rights)
Session 1 Session 13 Session 1 Session 13 Total CR* Total CR
1. Bahrain 36 67 12 2 176 22
2. Ecuador 33 73 12 1 136 42
3. Tunisia 65 77 28 0 164 20
4. Morocco 55 91 16 0 156 31
5. Indonesia 46 74 13 2 179 44
6. Finland 21 43 17 1 86 26
7. United Kingdom 38 60 35 9 132 35
8. India 42 80 30 1 169 54
9. Brazil 44 78 15 0 170 29
10. Philippines 41 64 24 4 159 36
11. Algeria 46 77 36 3 168 36
12. Poland 26 45 33 3 124 26
13. Netherlands 37 49 52 6 119 35
14. South Africa 45 77 29 6 151 43
Total Recs put 352 38
(10.8%)
2089 479 (22.9%) Average per State 38 68 25 3 149 35
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Table 11 provides a comparison between Session 1 and Session 13 for the same SuRs. It provides data about the number of states that took part in the Interactive Dialogue (Phase 2), the number of recommendations put by these states and how many of these are Child Rights’
recommendations.
The difference in the number of recommendations received by SuRs in their second review, compared to the first, is remarkable. The 1st Session in 2008 was totally untested and Member States were quite unaccustomed to this new process. This is reflected in the relatively few recommendations received by these states at that time. However, the table reveals that many reviewing states have make up lost ground during Session 13 in relation to the human rights issues needing attention in those countries.
The data shows that nearly double the number of states participated in the Interactive Dialogue in Session 13 than in Session 1 and the number of Child Rights issues have soared from an average of 3 to 35 per state - nearly 23% of all recommendations put. This number far exceeds the average of 23 achieved in the last five sessions of the 1st cycle (c.f. Table 5). Based on this data alone, it seems that Children’s Rights are now firmly on the agenda in the UPR process.
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Chapter VI
Children’s Rights in the Follow-up Phase of the UPR
An analysis of four States: United Kingdom Netherlands South Africa Philippines
Chapter summary
This chapter examines four states in relation to the Child Rights’ recommendations they received in the 1st Session in 2008 and looks at what has happened in the follow-up phase since that time. This analysis is possible since these states have had their second review. As a consequence, the research seeks to determine whether children are better off or not through the UPR. Child Rights issues raised at their 2nd review are also examined to see if there is a repetition of those proposed in 2008 or are there new issues being presented? The states examined are the United Kingdom, Netherlands, South Africa and the Philippines.
The revised modalities for the 2nd and subsequent cycles of the UPR stipulate that “the review should focus on, inter alia, the implementation of the accepted recommendations and the developments of the human rights situation in the State under review” (OHCHR, 2011, A/HRC/16/21). The following four states are examined in regard to the follow up that has occurred since their first review, from the perspective of recommendations that relate to children’s rights.
6.1
United Kingdom
At the adoption of the Draft Report in 2008 the UK delegation responded to most of the recommendations put to it. There were nine that referred to children. Details and responses to these recommendations follow.
General Comment: It has become the practice of many states to provide a written response to the recommendations received during the HRC session at which the final draft of the report is adopted. These are usually recorded in an Addendum to the Report of the Working Group on the outcomes of the review. The UK was one of the first states to adopt this practice. Where the State has responded through an Addendum, a summary of these responses have been included in the 4th column in the accompanying tables.
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TABLE 12 UNITED KINGDOM - Children’s Rights Recommendations Received in 2008
** RS = Recommending State Recommendation
(OHCHR, 2008, A/HRC/8/25) RS** Response Comments by the SuR
(OHCHR, 2008, A/HRC/8/25/Add.1) people under 18 to provide a wider range of sentencing options,
In the UK the rights of children and family members of migrants and
6. Withdraw its reservation to the Convention on the Rights of
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7. Consider removal of its reservations to the Convention on the Rights of the Child and the Optional Protocol on the
In terms of actions taken, 5 recommendations have been followed up, 1 has not and 3 remain in doubt (see Column 5 in the table above).
Follow Up
6.1.1 Mid-term Progress Report
During the regular session of the HRC in March 2010 the UK provided a Mid-term Progress Update on the recommendations received at its Review. This is recognized as an example of
‘good practice’ (http://lib.ohchr.org/HRBodies/UPR/Documents/Session1/GB/UKmid_term_report2010.pdf).
However, as of September 1, 2012, only 25 states have submitted mid-term updates.
Concerning the first and second recommendations in the table above, in its Mid-term update the UK referred to an independent Joint Review of Restraint in Juvenile Secure Settings. This report was published in December 2008. The Mid-term update indicated that Government has accepted almost all its recommendations and was “pressing ahead with their implementation”
(UK Mid-term progress update, HRC 13th Session). It also reported that progress has been made in relation to reducing incarceration rates of children.
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Referring to recommendation 5 above, put by France, the Mid-term Report provided data to support its activity in this regard. It referred to ‘The Child Poverty Bill’ progressing through Parliament at that time and gave an update on developments in Scotland, Wales and Northern Ireland.
In relation to the Convention on the Rights of the Child (Recommendation 7 above), the report noted that its two reservations, Article 22 and 37c, were formally removed in November 2008.
Furthermore, the UK has had a change of heart to its initial rejection of Indonesia’s call to withdraw its reservation on the provision that detained children be separated from adults while in detention, as well as its reservation concerning asylum seeking children. During the second review, the delegation informed the Working Group that there had been significant developments since 2008, noting that it had ended the detention of children for immigration purposes in 2011. ((OHCHR, 2012, A/HRC/21/9). The implication is that even though a state may reject a recommendation, the possibility remains for it to reverse its decision later.
Pressure from the recommending state and/or NGOs and NHRIs has the potential to bring about a change of heart by a government that initially may say a recommendation does not enjoy the favour of the government.
The Mid-term Report also referred to the issue of corporal punishment, reaffirming the Government’s stance that no child should be subjected to violence or abuse. It acknowledged that there were concerns over physical punishment in some education and other learning centres that fall outside its current legal framework banning corporal punishment. However, it did not give concrete evidence that progress was being made in these areas and simply referred to existing legislation in England and Wales, Scotland and Northern Ireland.
6.1.2 The Second Review
The UK’s National Report (OHCHR, 2012, A/HRC/WG.6/13/GBR/1) for its second review carries an update on many of the recommendations accepted in its initial review and says that it should be read in conjunction with its Mid-term update. Regarding children’s rights, it refers to the following:
- the Government has set up a Ministerial Working Group to look into ways to tackle inequalities experienced by Gypsies and Travellers in England in such areas as health, education, housing, employment and the criminal justice system. All of these areas affect children. A progress report is due sometime in 2012;
- whilst lifting its reservations to the two articles of the CRC, the Government has also ratified the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, reporting to the UN in May 2011 on progress in this area;
- various Action Plans for promoting the rights of children and young people are noted for Scotland, Wales and Northern Ireland;
- various measures on combating child poverty were aired;
- the Government says it is committed to legislating to give the Children’s Commissioner an explicit role in promoting and protecting children’s rights in line with the CRC and to make the Commissioner more independent from Government and more accountable to Parliament;
- corporal punishment is mentioned, however, there seems to be no further development here apart from a number of the Territories now have legislation that prohibits the use of corporal punishment in schools; and
- an update is given on “painful techniques” applied to children in custody, pursuing the recommendations of the Independent Review of Restraint in Juvenile Secure Settings
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(IRR) in 2008, noting that a new system of restraint has been developed, yet acknowledging that its application does involve a controlled amount of pain.
Analysis of the nine recommendations received in 2008 reveals that substantial activity has happened in following up these recommendations, although no further action has occurred with one and it was unclear as to any substantial action taken for another three (see column 4 above).
6.1.3 Questions in Advance
Slovenia, Norway and Sweden provided the UK with ‘Questions in Advance’ concerning support for children of incarcerated parents (Slovenia), the eradication of child poverty by 2020 (Norway) and issues surrounding freedom from physical punishment and other forms of violence and neglect in accordance with the CRC (Norway and Sweden). The delegation referred to these questions during its opening remarks at the Interactive Dialogue. However, it simply reiterated what it has already stated in its mid-term update of 2010 without adding anything new.
6.1.4 Interactive Dialogue at the Second Review
The following information has been gleaned from the Report of the Working Group on the Universal Periodic Review of the UK (OHCHR, 2012, A/HRC/21/9). In all, sixty delegations made statements and there were approximately 35 recommendations put to the UK relating to children during the Interactive Dialogue. Russia followed up on its recommendation in 2008 over its concern with the UK’s interpretive statement involving children in armed conflict and this was similarly supported by recommendations from Slovakia and Uzbekistan.
Sweden followed up its 2008 recommendation about corporal punishment, as the UK has not satisfied it that there is sufficient legislation to fully comply with the CRC. Norway and Finland raised the same concerns in their recommendations.
There were no further follow up questions or recommendations to those put in 2008. Either the reviewing State was satisfied with progress made with the recommendations it presented in 2008 or it has made little effort to track progress. However, several new Child Rights issues were put to the UK during its second review dealing mostly with issues of discrimination in various settings (e.g. education), trafficking and proposals to raise the minimum age of criminal responsibility, which currently stands at the age of 10. Overall, children’s rights fared well in mentions, questions and recommendations. The UK reaffirmed its firm support for children’s rights and reported on progress in the areas raised.
Summary: The UK has made tangible efforts to carry out action on the recommendations put to it in 2008. The mid-term report has provided an informative update and is an indication that the UK is taking follow-up to the UPR seriously. It also showed that it was open to reconsidering recommendations that initially it had rejected.
* * *
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Netherlands
In 2008 The Netherlands received six recommendations relating to children during its Review, as listed below. Netherlands accepted four and rejected two at the adoption of the Report.
TABLE 13 NETHERLANDS - Children’s Rights Recommendations Received in 2008 RS** = Recommending State Recommendation
(OHCHR, 2008, A/HRC/8/31) RS** Response Comments by the SuR (OHCHR, 2008, A/HRC/8/31/Add.1) this Protocol and expects it to be completed in early 2009. relates to children in conflict with the law, remain relevant and so cannot
right conditions for families to play YES
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their role successfully and that since 2007 the Netherlands has had a Ministry for Youth and Families.
6. Accede to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMRW)
Egypt Peru Algeria
Rejected
The Netherlands says it is opposed in principle to rights that could be derived from it by aliens without legal
residence rights. NO
In terms of action taken, 5 recommendations have been followed up and 1 has not (see Column 5 in the table above).
Follow up
6.2.1 Mid-term Progress Report
The Netherlands published a Mid-term Report in April 2010. In its opening statement, the Report notes that “The Netherlands considers the UPR to be an important mechanism and an ongoing process, complimentary to the work of treaty bodies and special procedures. The UPR process contributes to a permanent focus on promoting and protecting human rights at the national level” (http://lib.ohchr.org/HRBodies/UPR/Documents/Session1/NL/Netherlands_Interim_report.pdf).
This statement proffers strong support for the UPR.
In relation to the recommendation by Algeria about trafficking, the report referred to the most recent report from the National Rapporteur on Human Trafficking, outlining some success in reducing the number of underage trafficked Nigerian victims to the Netherlands and also referred to a Nigerian trafficking gang being arrested and prosecuted.
On recommendation 2 and 3 above, the report advises that the OP-AC to the CRC came into force in The Netherlands in May 2009. Furthermore, the report noted that whilst The Netherlands rejected Russia’s recommendation (No. 4 above) to withdraw its reservations on the CRC, the Government is now considering this recommendation and said it will inform the treaty body about its progress in the next CRC report.
In relation to the recommendation from Iran about the family, the Mid-term Report repeated what was said at the time of adopting its UPR Report in 2008 but also added that it had published a policy document ‘The Strength of the Family’ in November 2008 where the Minister announced his ambition to make The Netherlands more family-friendly and outlined how he would go about achieving this goal.
Finally, the Report simply reiterated its stance about rejecting the recommendation to accede to the International Convention on the Protection of All Migrant Workers and Their Families (ICMRW).
6.2.2 The Second Review
6.2.2 The Second Review