How the working methods and the calendar of the Council will evolve was not evident at the beginning. Nonetheless, it was clear that the workload associated with the establishment of the new human rights body presents a formidable challenge to states and their diplomatic missions in Geneva; particularly so to those from Africa. The Council holds three annual regular sessions taking not less than 10 weeks. It can also hold a number of special sessions. During its first year, the Council held four special sessions. Other mechanisms of the Council also have their own meetings spread out during the year. The UPR Working Group meets thrice a year. It may well be argued that the increased time allocation for the work of the Council provides greater opportunity to con-sider the numerous human rights issues deserving its attention. But many African countriesçparticularly those which do not have diplomatic represen-tation in Genevaçfind it considerably onerous to effectively participate in the Council and its various forums. During the negotiation on GA Resolution 60/251, the Caribbean Community (CARICOM) countries, fearful of this, had proposed that the locations of the meetings of the new Council should alternate between New York where almost all the UN Member States have mission and Geneva.67 Though this proposal has its own limitations, it is indicative of the pre-occupation of small countries and those with resource constraints regard-ing the burden of participatregard-ing in the work of the new body, includregard-ing the UPR. The workload stemming from such a crowded calendar was very clear, and even developed countries will be required to increase their human and other resources if they wish to fully engage in the work of the Council actively.68 Members of the Council particularly carry additional burdens, not least for working as rapporteurs in the troika. Though the country selected to be a member of the troika will determine how it shall be represented in discharge of its responsibility, the first two sessions of the Working Group show that countries, both developed and developing, largely relied on their Geneva based diplomats. The implication of this practice cannot be overstated since the effec-tiveness of participation and level of expertise these rapporteurs bring to the review will have a bearing on its efficacy and professionalism. The small community of diplomats in Geneva may find the process of open criticism unpalatable and may well fall pray to praise-bargaining. Moreover, delegations implementing this mandate may not be constituted of individuals with the required level of technical competence. Already visible discrepancies in the
67 Updates on Human Rights Council Negotiation, 25 January 2006, available at: http://www.
reformtheun.org/index.php/eupdate/1906 [last accessed 1 December 2008].
68 Citing the workload, the Canadian Standing Committee on Human Rights had recommended that the Government assign a dedicated ambassador for human rights, see Standing Committee on Human Rights, Canada and the United Nations Human Rights Council:
At the Crossroads ^ Interim Report, May 2007, at 52 and 53, available at: http://www.
senate-senat.ca/rights-droits.asp [last accessed 1 December 2008].
exercise of the role of the rapporteur have emerged which could be attributable to the personality and technical competence of the individuals involved in the process.69
Developing countries may find it costly to bring individual experts from their capital for the purpose of participating as rapporteurs. It is not expected that many states will volunteer to call upon individual human rights experts as troika members. Governments may wish to restrict this role to their Geneva-based diplomats, quite a burdensome task for diplomat experts and ambassadors from African countries, who cover so many activities in other international organisations in Geneva. As was stated:
If States are to participate fully in all aspects of the Council’s work, most need to increase the number of persons in their Geneva delegations, and preferably with persons having human rights expertise. The frequency of meetings now means that it is no longer possible to rely on bringing in people from capitals to cover and/or provide expertise. Even with the Commission, some States were never members, or only served one term, throughout the decades of its existence. If the Council is to be credible, it will be important that States are neither precluded from membership because of the demands, nor that some members do not participate fully in all aspects of the Council’s work, including in all UPR considerations.
If the need for consultations and action at the Ambassadorial level continues as it has been during the first year, consideration should also be given to having an Ambassador for Human Rights in the same way that some already do for Trade or Disarmament.70
For the African Group, the demanding role of being a rapporteur only revolves around the 13 African members of the Council. In the first two ses-sions of the Working Group on UPR, the following African countries served as rapporteurs: Angola (for Poland and Romania); Cameroon (for Argentina and Sri Lanka); Djibouti (for Indonesia and Japan); Egypt(for the Republic of Korea and UK); Gabon (for Brazil and Guatemala); Ghana (for India and Pakistan);
Madagascar (for Benin and Morocco); Mauritius (for Mali and Tunisia); Mali (for Peru and Philippines); Nigeria (for Gabon, The Netherlands and Toga);
Senegal (for Algeria and Zambia); South Africa (for the Czech Republic and Switzerland); and Zambia (for France and South Africa). All of them served as members of a troika at least twice. Nigeria served thrice. South Africa, Ghana, Gabon and Mali participated as rapporteurs at least once during a session of the Working Group in which they were slated to be reviewed.
69 OHCHR workshop organised jointly by the Swiss Government and Geneva Academy of International Humanitarian and Human Rights Law, 3 July 2008.
70 Brett, supra n. 19 at 16.
One of the overarching principles of the UPR, as clearly captured in the institution-building text, has been that the process shall be cost-effective, non-burdensome and not absorb a disproportionate amount of the time and resources (human and financial) of the Council and of the state under review.
One important element in ensuring that the review does not become burden-some relates to the obligation of reporting. As noted, the report phase does not follow the procedures and guidelines of existing human rights treaty bodies. Specific Guidelines were adopted which identified some of the elements that need to be incorporated when a state presents its report. Opportunity is also open for states even to present their report orally, though it is not expected that many would follow such route. The Guidelines provide for a report pre-paration phase which is broad and inclusive in its approach. But this provision is not introduced in the text as an authoritative and binding provision. Rather states are simply ‘encouraged’ to involve all stakeholders in the preparation of the report.
Numerous African countries considered it important that technical and financial assistance is provided enabling them to effectively participate in the UPR. It remains a question whether African countries, particularly least developed countries (LDCs), can muster the capacity and resources to actively participate in the UPR. Thanks to the insistence of the African Group, the institution-building text included a provision for the establishment of a UPR Trust Fund which will provide assistance for the effective participation of developing countries, particularly LDCs. The Council, during its fifth session, held between 11 and 18 June 2007, upon the behest of the African Group, adopted a resolution establishing this Trust Fund. A few had reservations about its establishment, citing problems associated with similar voluntary trust funds established without any guarantee that such decisions will be actively supported by donor governments. Though the Fund is now established, its practical assistance to states is uncertain. Numerous countries, particularly developed ones, often citing the proliferation of funds and the technical difficulty of getting decisions to establish them through the Fifth Committee of the GA, were originally opposed to its establishment. African countries on the other hand insisted that a provision to that effect should be incorporated in the text. Perhaps owing to the stark difference displayed among delegations at the time of the negotiation of the text, the commitment to establish the fund is only indicated in a footnote to Council Resolution 5/1.71 This goes down as a unique provision in which an enormously serious, action oriented provision is inserted in a footnote of a document. The second financial mecha-nism, which is even more equivocal, refers to financial and technical assis-tance that will assist states to implement the outcome. Unlike the UPR Trust Fund, the text, in yet another footnote, provides for the taking of a decision in
71 Supra n. 3 at para. 18(a).
the future on whether to resort to existing financial mechanisms or create new mechanisms.
The OHCHR has long been engaged in providing a range of advisory services, technical assistance and field operations. Providing assistance to resource constrained countries to participate effectively in the UPR adds a new dimension to the already existing technical assistance mandate. The Office has sent out a note to member countries stating that they can request funding to cover the cost of individuals travelling to Geneva to participate as rappouteurs.72However, the impact of such funding mechanism is enormously limited. Though the Voluntary Trust Fund is already established, the Office is struggling to secure sufficient financial commitments from donors, forcing it to prioritise requests and considerably limit their coverage. Priority will be given to those who are asking for financial assistance to present their national report over those who are requesting similar assistance to take part in the Working Group sessions as rapporteurs. Moreover, the funding is limited to just one individual from a Member State of the Council which do not have permanent mission in Geneva. Very few countries will likely vie for member-ship of the Council without having some form of representation in Geneva, and currently all African member countries have permanent mission in Geneva. Thus, the mechanism does not help those who have missions and yet do not have the necessary human resource to play an active role in the Council.