9.
was not recommending a system where the outcome will be determined by experts as the decision-making process, in his view, should remain a “quintessentially political one”. He also stated that “unless the Council makes specifi c, well-formu-lated and feasible recommendations based on its review of each country’s perform-ance, the process will lack credibility and will soon fall into disrepute and then into desuetude”.116
As the UPR was the most tangible innovation of the reform process that created the Council, it carries the burden of delivering on the promise of the reform. The fact that the institution-building process very quickly became an attack on the best features of the mechanisms that were carried over from the Commission has only served to exacerbate the expectations from the UPR. In a normal process, the UPR could have been judged on its merits alone. In the context of all the drama sur-rounding the creation of the Council and its resource intensive institution-building process, it has for better or for worse, become the marker for the failure or suc-cess of the Council.
9.1. The fi nal model and vision of the UPR
A number of models were put forward for the UPR in the lead up to and in the actual discussions at the UPR. However, early in the process, most States recog-nised the practical and resource diffi culties that would accompany some of the most detailed models of the UPR that had been suggested and debate revolved around two options: either a UPR conducted by smaller working group or a UPR conducted by the Council in plenary. The worst option on the table was a UPR carried out in plenary by the Council, facilitated by a group of friends or a mem-ber of the regional group. Under this model, NGOs would only have been able to provide input for the preparation of the national report, and the adoption of any recommendations or outcome document would be subject to the consent of the State concerned.
The package now provides a compromise that the UPR will be conducted by the entire Council, sitting as a working group, rather than in a plenary session through an interactive dialogue with the concerned State. The review will be based on three documents; a national report or national information, a compilation by OHCHR of the information contained in the reports of treaty bodies, special pro-cedures and other UN documents, and a summary prepared by OHCHR of infor-mation received from other stakeholders, including NGOs. The interactive dialogue will be facilitated by three UPR rapporteurs117 who are chosen by lot from each regional group. The working group, with the help of the three UPR rapporteurs, will prepare a report which will be forwarded for adoption as an outcome to a plenary session of the Council. The report will identify recommendations that enjoy the support of the State under review but also include those that do not, identifying them clearly as such. The main benefi t of the Council sitting as a working group is that the process will occur outside the main sessions of the Council allowing for more focused attention to the review and will not eat up the time allocated to
As the UPR was the most tangible innovation of the reform process that created the Council, it carries the burden of delivering on the promise of the reform.
The UPR will be conducted by the entire Council, sitting as a working group through an interactive dialogue with the concerned state.
116 Ibid., p. 214.
117 The persons who are selected to facilitate the UPR are referred to in this paper as ‘UPR rapporteurs’ to distinguish them from the special procedures.
the main sessions. It will also allow for a clear distinction to be drawn between the review process and the adoption of the outcome and for a gap of time to elapse between the two.
Observer States can participate in the review process and in the interactive dialogue with the concerned State. Other “relevant stakeholders” such as NHRIs and NGOs can attend the review but can not ask questions. Though some States endorsed the idea of NGOs asking questions, many others were opposed to this as they saw it solely as intergovernmental process. Proposals for experts to be involved in the process even in the limited capacity of what some described as ‘clerks’ or ‘facili-tators’ were rejected. The option for the special procedures or the new expert body to participate in or contribute directly to the review was strongly opposed.
Though some States were clear that expert involvement was crucial to the credibility and seriousness of the UPR, the notion of a ‘peer review’ triumphed again. The only concession that the facilitator was able to include was that any State, which wished to, could include experts in its own delegation
The package identifi ed a series of principles for the UPR, based on the discussions at the working group. These principles will not be used in the actual review proc-ess but set out a vision of the UPR, which is refl ected in the procproc-ess and modalities that have been chosen. These principles will also no doubt be referred to in the event of any dispute on interpretation or future development of the mechanism.
In addition to reiterating many of the principles enunciated in General Assembly Resolution 60/251,118 great emphasis is placed on the cooperative nature of the mechanism and that it should be constructive, confrontational and politicised. The UPR, without prejudice to the obligations contained in the elements provided for in the basis of the review, is supposed to take into account the level of development and specifi cities of countries. The process is also supposed to be inter-governmental in nature and UN member-driven, it should not be overly burdensome or long, be realistic and not absorb a disproportionate amount time, human and fi nancial resources. These principles refl ect the overall push by many States, repeatedly and vocally in the working group, for a ‘cooperative’ mechanism.
The package does however recognise that the process should be action-oriented and not diminish the Council’s capacity to respond to urgent human rights situations.
The focus on a constructive and cooperative process is useful as it is obvious that a review process, which the State is willing to engage in, would have far better chances of success than one it is resisting. The problem is that many States inter-pret ‘cooperation’ as a limitation on any criticism of the failure of a State to fulfi l its human rights obligations. These States prefer to view such a failure as a refl ec-tion of the practical challenges faced by the State and linked to its level of develop-ment and specifi cities. The UPR, in their view, should overcome these shortcomings by providing technical assistance and creating a fund to help the State implement recommendations but of course, only with its consent. The State can therefore not be criticised for its failures but should be supported in addressing these. The main problem with this approach is that it refuses to consider situations when criticism
118 Promote the universality, interdependence, indivisibility and interrelatedness of all human rights; be a cooperative mechanism based on objective and reliable information and on interactive dialogue; ensure universal coverage and equal treatment of all States; fully involve the country under review; and be con-ducted in an objective, transparent, non-selective manner.
NHRIs and NGOs can attend the review but can not ask questions.
Proposals for experts to be involved in the process were rejected.
Great emphasis is placed on the cooperative nature of the mechanism and that it should be constructive,
is warranted either because the State in question refuses to allow a genuine scru-tiny, fails to even attempt to implement recommendations. There is also no ac-knowledgement that the State’s failure is not always linked to resources or chal-lenges but can sometimes be linked a deliberate policy, based on discrimination or other considerations. This approach is refl ected in particular in the lack of a clear focus in the assessment and outcomes of the UPR. The conceptualisation of the UPR as a cooperative mechanism thus unfortunately became a confl ict between those who wanted to use this mechanism to strengthen the ability of the Council to conduct scrutiny of countries and those who want to reverse the practice of country specifi c criticism itself.119
The institution-building package thankfully however managed to evade two key propositions of the cooperation approach that were expounded in the working group. First, that any outcome or recommendations should be adopted only with the consent of the concerned State and second, that there was no need to refer to action that the Council should take if the State persisted in not cooperating. These are discussed further in the outcomes section below. It will be essential to the success of the UPR that States will be able to move from cooperation to criticism when required during the reviews and for members of the Council to be willing to let any outcome censure the State under review, fairly and when called for.
9.2. Scope of the review and information to be considered
One of the key issues to be decided was which human rights obligations and com-mitments would be used to undertake the UPR and whether these would vary with the State in question?120 The institution-building package identifi es the UN Char-ter, the UDHR, human rights instruments to which the State is a party, voluntary pledges and commitments made by the State including those undertaken when presenting their candidatures for election to the Council as the standards that will form the basis of the review. The human rights instruments to which a State is a party will naturally vary from State to State and other than the UDHR, the State will only be considered on the instruments it has signed up to. The UPR will also take applicable international humanitarian law into account, although there was considerable divergence of opinion on whether this should have been included, and when it was included what this would mean in practice given that the Coun-cil has neither the mandate nor competency to address the subject in isolation.
As the UPR will be focusing on treaty obligations ratifi ed by the state in question, it will be important that it avoid a ‘second substantive assessment of compliance with these obligations’121 in order to avoid duplicating and potentially weakening the work of the treaty bodies. The package provides that the OHCHR will prepare a compilation of the information contained in the reports of treaty bodies. This compilation, which will also include information from special procedures, other relevant offi cial UN documents, and include any observations and comments by the State concerned to this information, should not exceed 10 pages. The focus on treaty body information may therefore vary based on the country concerned.
119 F. D. Gaer, ‘A Voice Not an Echo: Universal Periodic Review and the UN Treaty Body System’, n. 117, p.
133 but see also pp. 128 – 132.
120 M. Abraham, A New Chapter for Human Rights, n. 10 above, p. 75.
121 Finland (on behalf of the EU). See also, F. D. Gaer, ‘A Voice Not an Echo: Universal Periodic Review and the UN Treaty Body System’, n. 117 above, p. 125.
It will be essential to the success of the UPR that states will be able to move from cooperation to criticism when required during the reviews.
As the UPR will be focusing on treaty obligations ratifi ed by the state in question, it will be important that it avoid a ‘second substantive assessment of compliance with these obligations’in order to avoid duplicating and potentially weakening the work of the treaty bodies.
The UPR will ideally focus on the extent of follow-up or implementation of the recommendations of treaty bodies. There was resistance from some States to including such an assessment in the outcome document as this would allow for an authoritative determination of the extent of non-compliance. The focus of the review on the basis of treaty obligations and on follow up to special procedure’s recommendations and communications will become clearer once the Council develops the guidelines for submission of the national report, in its sixth ses-sion.
The concerned State will also prepare information, which can take the form of a national report, or be presented orally or in writing. Any written presentation should however not exceed 20 pages to “guarantee equal treatment and not to overburden the mechanism”. The fl exibility in terms of the State presenting a report or other forms of information was introduced to avoid adding another reporting burden on the State, and potentially jeopardising its reports to treaty bodies. It also aims to prevent delays in situations where the State does not or is late in producing a report. Borrowing a principle from the work of the treaty bod-ies, the package encourages States to prepare the information through a broad consultation process at the national level with all relevant stakeholders. For this to be effective however, the guidelines should require states to report on the extent of consultations and to list the civil society entities that were involved in the pro-duction of the report.
The Council will also take into consideration “credible and reliable information”
provided by other relevant stakeholders to the UPR. Provision is therefore made for NGOs and NHRIs to submit information but all the information submitted will be summarised by the OHCHR and the summary can not exceed 10 pages. It is interesting to note that little time was given to defi ning what may constitute
‘ credible and reliable’ information, although it is likely to become an issue in the future. The Council will develop guidelines for the information to be submitted by the State and the document prepared by the OHCHR are also expected to follow the structure of these general guidelines that will be adopted in the sixth session.
A few States expressed strong opposition to the proposition that OHCHR should in any way ‘analyse’ the information that it puts together. OHCHR may be put in a politically awkward situation if it did so in any event. Producing a 10 page com-pilation that presents the main issues and information concisely but in suffi cient depth will be a considerable challenge for most countries. It will however be par-ticularly diffi cult for countries that have ratifi ed all seven human rights treaties, received visits from multiple special procedures, or that receive a large volume of NGO submissions. In the discussions at the working group on the review of special procedures, some States had suggested that the OHCHR create a public website with information on the extent of cooperation with special procedures, particu-larly on responses to communications and requests for visits and follow up to recommendations. This idea was shot down but there is no reason why NGOs could not choose to make this information available publicly in the run up to the UPR. NGOs could in the same way try and fi ll this gap in analysis by identifying a list of the main issues that should be focused on in the UPR and provide data about follow-up to treaty body and special procedure recommendations.
The package encourages states to prepare the information through a broad consultation process at the national level with all relevant stakeholders.
The Council will also take into consideration
“ credible and reliable information” provided by other relevant stakeholders to the UPR.
9.3. Order and process of the review
The fi rst States to be reviewed will be chosen from lots from each regional group, after this an alphabetical order will be applied. Exceptions will be made for those who volunteer to be reviewed. Council members shall be reviewed during their terms of membership and the initial members of the Council, especially those who were elected for one or two-year terms, are to be reviewed fi rst. States will be reviewed once every four years but this periodicity and other modalities will be reviewed at the end of the fi rst four year (described as the fi rst cycle of the UPR).
The Council, sitting as a working group, will therefore review 48 States every year during three sessions of the working group, of two weeks each. The President of the Council will chair the working group. The package provides for a group of three UPR rapporteurs to be formed by drawing lots among the members of the Council and from different regional groups. This ‘troika’ will facilitate each review, including the preparation of the report of the working group and will be sup-ported in its work by OHCHR. The State is given the opportunity to request that one of the rapporteurs be from the same regional group and to request the sub-stitution of a UPR rapporteur on one occasion.
It is not clear if different troikas will be formed for each review or if the same group may be used for multiple reviews. The troika can collate issues or questions to be transmitted to the State under review to facilitate its preparation and focus the interactive dialogue. The initial formulation in the President’s text provided that the rapporteurs would identify questions however some States were insistent that it was the right of members to ask questions122 and the UPR rapporteurs’ role was therefore further downgraded to a mere collation of questions. The effective-ness of the interactive dialogue will hinge on the ability of the rapporteurs and the President of the Council to manage the time available and focus the discussions on the main issues of concern in the country. There is a risk that if, as some States argued, they will not accept any restrictions on their rights to ask questions, that the process could degenerate into two hours of bland political statements or unfocused questions on every human rights issue in the country. The State con-cerned would then have limited time for its replies or its replies would be scattered and the working group would have no opportunity to follow up on the State’s responses. This is a familiar scenario from the dialogues that were held with special procedures in the Commission.
As all States have the fl exibility to decide on the composition of their own delega-tions, it will be interesting to see if this fl exibility also extends to nominating an expert from the delegation instead of a State representative to be the UPR rap-porteur. It is hoped that at least some States will try to establish this practice as a precedent and that many will also make it a normal practice to have experts on
As all States have the fl exibility to decide on the composition of their own delega-tions, it will be interesting to see if this fl exibility also extends to nominating an expert from the delegation instead of a State representative to be the UPR rap-porteur. It is hoped that at least some States will try to establish this practice as a precedent and that many will also make it a normal practice to have experts on