The report adopted within the framework of the working group must also be adopted during an ordinary session of the Human Rights Council. An hour-long plenary session is set aside for analysis and adoption of the report.
The Universal Periodic Review sets out two stages for the participation of NGOs: a compilation of their comments figures among the principal documents used to study a country – together with the national report and UN experts’ report; these same NGOs can add any “general remarks”1ahead of the final conclusions of the review.
The place of NGOs in the procedure
In line with the provisions of Resolution 5/1, NGOs cannot intervene during the working group sessions. Although NGOs do not participate fully in the three hours allocated for each review, they can be present at the discussions and can involve the media within the Palais des Nations, via the United Nations Correspondents Association.
Having obtained the agreement of the State under review, the NGOs can organise public meetings at the Palais des Nations during the country’s review. If States object to this, they risk undermining their credibility as accountable and transparent.
The representatives of civil society can formulate general remarks before the final document is adopted in plenary. At this stage, however, the working group’s report has already been prepared and the NGOs’ comments can only have limited impact.
The “other stakeholders” have twenty minutes to have their say, as do the State under review and the other States. Many organisations try to be one of the privileged few that are allowed to intervene during the two-minute slots given to each organisation.
Difficult debates on the question of the content of NGO statements
The working group reports on the 32 countries reviewed during the first two sessions of the UPR in April and May 2008 were adopted during the eighth ordinary session of the Human Rights Council in June 2008. The first day of the session saw very heated exchanges on the place that ought to be given to NGOs in the process.
The main debate centred on the contents of NGOs’ statements. What could NGOs say and not say during their speaking time? In other words, are human rights activists empowered to highlight the gaps in the final report on their country or must they merely make a few technical comments of no consequence? Behind this debate lies the question, once more, of the actual role of civil society within the Human Rights Council.
It was the notion of “general comments” that saw Egypt and Pakistan in direct opposition to Slovenia, Switzerland, Mexico, Canada and France.
1. § 31 of Human Rights Council Resolution 5/1 of 18 June 2007:
“Other interested stakeholders will have the opportunity to make general remarks before the adoption of the outcome by the plenary”.
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The first group2 used different tactics to try to limit NGO participation. So it regularly intervened during the first session of the UPR when it considered that the NGOs were stepping outside the framework in place for their comments, that is, when they did not just remark on the results from the working group’s review. The other group3, on the contrary, stated that Resolution 5/1 allowed NGOs to make
“general comments” that did not only have a bearing on the results from the working group. The President of the Council, Doru Costea, for his part called to order any speaker who strayed outside the contents of the report, seemingly giving credence to the first group. This detail opened up a breach, thereby allowing certain countries, such as Egypt and Pakistan, to interrupt the NGOs on several occasions on the pretext that they were returning to discussions that had already taken place during the working group’s sessions or that their statements were not linked to the review that had taken place.
These interruptions occurred during adoption of the reports on Bahrain (four points of order), Tunisia (two points of order), Morocco (seven points of order), Indonesia (one point of order), Algeria (one point of order) and Pakistan (two points of order).
So for six of the nine OIC member countries whose reports were adopted during this session, comments by NGOs were interrupted.
This type of interruption was repeated during the twelfth ordinary Human Rights Council session in September 2009, when it was examining the reports adopted for the sixteen countries reviewed during the fifth session of the UPR. On 24 September 2009, Egypt raised five points of order during adoption of the UPR working group’s report on Yemen. The delegate gave as a pretext the fact that the statements by the four NGOs4did not relate to the report as they should. The Egypt representative confirmed that he would not attempt to silence the NGOs but that they did not understand how to take the floor. Sweden argued that paragraph 31 of Council Resolution 5/1 allows NGOs to make “general remarks” and that this was to be interpreted in the wider sense of the expression. Sweden was supported by the United States, which called for greater freedom for the NGOs. Yemen was the only country for which points of order were called during this session.
It should be noted that States only criticised NGO comments when the countries being reviewed belonged to the OIC. The most outspoken countries did not intervene over NGO criticisms of other countries, even if such comments were not directly linked to the working group’s report.
One can equally see that statements by certain NGOs in favour of countries under review were not interrupted, even when their comments had nothing whatsoever to do with the conclusions of the working group’s report. For instance, on 9 June 2008, during a session devoted to Tunisia, the Council heard a joint speech5praising the equality principle and referring just once to Tunisia, but making no reference to the working group’s report. Similarly another organisation6expressed its support of Tunisia’s policies on the promotion of women without once referring to the working group’s report, and yet was not interrupted on a point of order. On 11 June 2009, at the session devoted to adopting the working group’s report on China, several organisations7made favourable comments about the Chinese authorities without making any reference to the working group’s report or being interrupted.
Other difficulties
In order to avoid repeated interruptions from certain States, the NGOs have adapted their oral presentations by linking them to the working group’s report. The NGOs have remained active8, even though their participation dropped slightly during the second and fifth sessions.
The voice of NGOs is also curtailed in other ways, especially by time constraints.
As a result of delays accumulated earlier by the Council during the sessions, NGOs’
speaking time is almost always reduced to two minutes, even when there are fewer than ten of them wishing to take the floor.
2. Pakistan, Egypt, Nigeria.
3. Slovenia, Germany, Mexico, Canada and Switzerland.
4. Al-Hakim Foundation, Cairo Institute for Human Rights Study, Amnesty International, Human Rights Watch.
5. Organisation de la Mère Maghrébine (OMMA) [Maghrebin Mothers’ Organisation], Femmes Africa Solidarité (FAS) [Solidarity for African Women] and the Association Tunisienne des Mères (ATM) [Tunisian Mothers’
Association].
6. Espace Afrique International [International Africa Space].
7. Women's International Democratic Federation, United Nations Association of China, Federation of Cuban Women, China NGO Network for International Exchanges.
8. 77 NGOs intervened during the first session, 45 during the second, 72 during the third, 63 during the fourth and 47 during the fifth session.
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During the adoption of the report on Canada on 9 June 2009, due to it being so late, only six of the ten NGOs that had put their names down were able to speak.
The same problem occurred the following day, when the report on Saudi Arabia was adopted. During the general debate on the UPR held on 12 June 2009, the Czech Republic, on behalf of the European Union, and the United Kingdom maintained that the time allotted to NGOs had to be strictly respected. Australia underlined that the NGOs ought to carry on benefiting from the real possibility of contributing to the UPR. The Russian Federation, for its part, stated that it was unacceptable for comments from NGOs that had not been given during the session to be included in the final document. In Amnesty International’s opinion, difficulties encountered by countries wishing to put their names on the list of speakers were minor compared to those encountered by NGOs; it also criticised the fact that certain governments helped compliant NGOs in their bid to take the floor.
Since NGOs can only speak at the beginning and end of the process, only a part of the problems that they are illustrating and submit to the group can be dealt with.
For example, questions of torture, religious discrimination and detention conditions in Bahrain were raised by the NGOs that sent them in writing to the Human Rights Council. However, these questions cannot be found in the working group’s report.
There is also material discrimination between the NGOs themselves. The lobbying and physical presence during working group meetings and plenary sessions indicates that members of the NGOs wishing to speak are in Geneva for these sessions.
However, these journeys can become very expensive for the smallest NGOs. Only the large NGOs can afford to intervene on a regular basis. The majority of NGOs, therefore, must select those States in respect of which they intend to take the floor. The first session serves as an example of the material difficulties NGOs face.
Several of them9complained in a statement on 13 June 200810 about the lack of clarity and the tendency to make last-minute changes to the arrangements under which they could take the floor. This was preventing some NGOs from obtaining funding or a visa to get to Geneva.
Another alarming tendency is the attempt by certain States to question the objectivity and reliability of non-governmental sources of information eligible to intervene during the plenary session of the review. For example, during the plenary session devoted to adopting the report on Algeria on 10 June 2008, the Algerian Ambassador questioned whether certain statements by NGOs were “politically motivated” before asking about the legitimacy of certain comments and referring to others as “crocodile words”.
During the general debate on the UPR on 12 June 2009, Cuba violently attacked the NGOs by stating that some of them had abused their influence as a result of support and funding received from “powerful sources”. It asked who was able to confirm that the international NGOs give the UPR process legitimacy by participating. Cuba also said it wanted to know who had given NGOs – for whom human rights are a
“lucrative activity” – the right to “insult governments and national NGOs”. It then went on to state that national NGOs with direct experience of the situation in the country being reviewed ought to have priority during the UPR debates. Sri Lanka also took the “well-funded” NGOs to task for being repetitive and stated that, for the mechanism to work, it was better for the NGOs to stay outside the room unless they had “something new to say”.
A still more worrying tendency is that in parallel to the discredit heaped by certain States on the reliability of NGO statements, we are witnessing the emergence of NGOs put in place by governments – the so-called “GONGOS”11 – as was the case under the former Human Rights Commission.
Machinations by Cuba and China to gag the independent NGOs during their reviews are the most blatant examples.
Before the adoption of the working group’s report on Cuba during the eleventh ordinary Council session, dozens of NGOs rushed to register – the majority of them
9. Asian Legal Resource Centre, Ba’hai International Community, the Cairo Institute for Human Rights Studies, the Centre for Housing Rights and Evictions (COHRE), Conectas (Brazil), Asian Forum for Human Rights and Development (FORUM-ASIA), Franciscans International, Human Rights Watch, the International Service for Human Rights (ISHR), Pax Romana, and Rights and Democracy.
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had been set up by the Cuban government or could be counted on to relay its positions. Well before the official moment12for preparing the list of speakers, these organisations had brought unacceptable pressure to bear to be registered and had thus been allocated almost all of the speaking slots. Only two independent NGOs were eventually able to speak. The case of Cuba illustrates the limits of the Universal Periodic Review and casts doubt on its efficiency in countries that will not brook any contradiction.
RECOMMENDATIONS
• Ask the Council Secretariat to strictly respect the procedures put in place to allow equal treatment between NGOs.
• Encourage States to always authorise, without the need for their express consent, the contents of meetings held in parallel to the UPR sessions along the lines of information sessions given by treaty bodies. Until now these parallel meetings can only take place if the State being reviewed authorises them.
• Ask States to interpret in a broad sense the possibility of making general comments before the final document is adopted in plenary, in line with Resolution 5/1. It is important, in order to show that a review was comprehensive and useful, to be able to raise questions that were not addressed during the review itself.
• Strengthen the provisions of Resolution 5/1 regarding the participation of NGOs in the UPR process by allocating more time and space to all stakeholders in advance. The NGOs should be authorised to take the floor during the interactive dialogue that takes place within the UPR’s working groups. This change could be implemented during the review due to take place in 2011, five years after the adoption of General Assembly Resolution 60/251 establishing the Human Rights Council.
12. All these “NGOs” had arrived at the UN at 6.30 a.m., thanks to diplomatic help, which is not within the rules.
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Conclusion
The provisional assessment of the Universal Periodic Review set up by the Human Rights Council is mixed.
It is an exercise that allows for the gathering of an inestimable quantity of information on the human rights situation in each UN Member State. This information can then be used by the NGOs and other stakeholders better to target their strategies of defence and follow-up. It can equally be used by the treaty bodies and special procedures of the Human Rights Council. Moreover, for those States seeking help in improving their human rights situations at home, the UPR a process seems to be having a positive impact. Some States have also seized this opportunity to ask their peers serious and delicate questions about topics that would probably not have been aired at the Council itself or before other intergovernmental bodies.
However, even though the working practices used over the six first sessions of the UPR were varied and it is hard to provide a clear assessment of the process at this stage, there are already inherent weaknesses. The practice by certain States of using their speaking time to praise their “friends” and paint a positive picture of human rights in that country, and the selectivity of many countries in the questions they have chosen to address both fly in the face of the fundamental principles of the UPR: “universality of coverage and equal treatment with respect to all States”.
Furthermore, there are two challenges to be dealt with by the Human Rights Council.
The first is the question of how to divide up the speaking time. This issue was discussed again at the general debate on the UPR on 25 September 2009, at the twelfth session of the Human Rights Council. Japan expressed its concern about the limits imposed on the list of speakers because it maintained that the largest possible number of States should be able to participate and that the time should not be divided between the regional groups. Russia, for its part, believed the queuing to register to speak was no more than a technical problem that did not warrant urgent action. The Republic of Korea then stated that all States should be able to make a statement and the United States expressed its concern as to the non-participation of a group of States and suggested, as had the Republic of Korea last June, dividing up the time according to the number of speakers. Bangladesh shared this view, saying that the list of speakers was only a procedural problem. Turkey insisted on the fact that the note from the Secretariat of 26 August 2009 did not provide a definitive solution, as it gave power to the regional groups, and suggested a full division of time among States wishing to take the floor, provided that there was not less than one minute for each country. This question must be resolved swiftly by the Council by guaranteeing enough time for constructive dialogue with the State under review, strong participation by the States in the process and equal treatment between States wishing to express their opinions.
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The question of translating the documents into all the UN’s official languages presents another challenge. There were numerous complaints over the course of the sessions that the translations had not arrived in time. To ensure the proper functioning of the UPR, it is vital that the final results of reviews be translated before being adopted. On Mexico’s initiative the Council adopted, by consensus, at its eleventh ordinary session in June 2009, a Resolution1on the “Issuance of reports of the Working Group on the Universal Periodic Review in all the official languages of the United Nations”, insisting that all the necessary information at the review be translated and asking the Secretary-General to provide the necessary funding to ensure proper distribution of these reports in good time.
The importance of follow-up of a State
The question at the heart of the process is the length of time that is deemed necessary for States to implement the commitments made in dialogue with their peers.
The recommendations made by other States at the conclusion of the Universal Periodic Review should, in principle, be used as tools to monitor the human rights situation in the countries involved. Within the framework of a mechanism that aims to be cooperative2, these recommendations should be put in place primarily by the State in question and, if suitable, by “other relevant stakeholders”, such as NGOs.
However, NGOs on the ground are often disappointed because they expect immediate change and would like to see concrete action arising from the review in
However, NGOs on the ground are often disappointed because they expect immediate change and would like to see concrete action arising from the review in