Beyond promises

Beyond promises

T T T h h h e e e i i i m m m p p p a a a c c c t t t o o o f f f t t t h h h e e e U U U P P P R R R

o o o n n n t t t h h h e e e g g g r r r o ou o u un n nd d d

The Follow-up programme:

Beyond promises

UPR Info

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Executive summary

The present study provides insight into the concrete and immediate results of the promises made in the first cycle of the Universal Periodic Review (UPR). The data presented shows that 48 percent of UPR recommendations triggered action by mid- term, meaning that the recommendations were either fully or partially implemented only 2.5 years after the initial review. The regional group that was most successful at mid- term is the Eastern European group, while some difficulties were perceived in Asia. The initial response of the state under review to the recommendations, accepted or noted, influenced the implementation of the recommendations in favour of accepted recommendations, with 55 percent of accepted recommendations triggering action by mid-term. However, 19 percent of noted recommendations also triggered action by mid- term, indicating that noted recommendations should not be disregarded in the implementation phase. Issues such as women’s rights, international instruments, and children’s rights had the overall highest number of recommendations that triggered action, but the issues with the highest percentage of implementation within the issue categories were HIV-Aids, human trafficking, and people with disabilities. Alternatively, the highest percentages of non-implementation within categories were of recommendations pertaining to the freedom of movement, right to land, and the death penalty.

The Mid-term Implementation Assessments (MIAs) also illustrated the ways in which recommendations were implemented. National and international legal measures, national action plans, awareness-raising efforts, and the creation of new institutions to work on the different human rights issues were all part of the effort to implement the recommendations received.

While engagement of UPR stakeholders has increased over the course of the first cycle, it is clear that this engagement is still lacking, especially in the follow-up to the recommendations. During discussions on the UPR process, UPR stakeholders working in different regions of the world indicated that in addition to a general increase in follow- up activities, actors should equip themselves with a solid strategy for the follow-up phase in order to ensure that UPR recommendations are implemented effectively.

Furthermore, increased collaboration amongst the different UPR stakeholders is invaluable for coordinated, comprehensive, and sustainable actions that aim to improve human rights at the national level.

recommendations received in Geneva and shares solutions for addressing those challenges. Achievements in implementing UPR recommendations are presented in chapters 2 and 4, while good practices with regard to engagement with the UPR are highlighted in chapter 5.

UPR success stories

Among the thousands of steps taken to implement UPR recommendations, below are just a few examples.

Take measures to tackle the exploitation of children, including domestic work, hazardous labour, especially in the mining sector, commercial sex and trafficking, starting with the ratification of the ILO Minimum Age Convention No. 138 and the ILO Convention No. 182 on Worst Form of Child Labour (recommended by Slovenia)

Sierra Leone received the above recommendation at its first UPR in May 2011. In the following month, the Government of Sierra Leone ratified the two ILO conventions and the Child Labour Unit was created at the Ministry of Labour and Social Security to ensure further action regarding the Conventions.

Reconsider its stance on the United Nations Declaration on the Rights of Indigenous Peoples (recommended by Denmark)

During its first UPR in February 2009, Canada did not accept the recommendation asking it to re-consider its stance on the United Nations Declaration on the Rights of Indigenous Peoples because it had “concerns with respect to the wording...”. However, in November 2010, Canada endorsed the Declaration.

Reduce the number of crimes carrying the death penalty (recommended by Australia and Canada)

China received several recommendations on the death penalty in February 2009. While China did not accept these recommendations, in late February 2011, the Chinese government announced the abolition of the death penalty for 13 economic crimes, thus reducing the original list of 68 crimes punishable by death to 55.

Strengthen measures to protect and provide assistance to victims of trafficking in persons, with special emphasis on children victims (recommended by the Philippines)

At its first UPR in 2009, Mexico received several recommendations on the issue of human trafficking. During the implementation phase, human trafficking activity was traced to the state of Txcala. In response, the State Council against Human Trafficking of Tlaxcala was established with the participation of civil society organisations. Mexico also undertook the “Blue Heart Campaign” of the United Nations Office on Drugs and Crimes (UNODC) at the national level. The Blue Heart Campaign calls on different sectors of society to: inform themselves and others about human trafficking; reject any products or services that profit from human trafficking; report suspicious activities to the proper authorities; and raise awareness with the help of the blue heart symbol.

Commit to speedily implement an effective asylum system consistent with EU standards (recommended by the United Kingdom)

Greece received more than 20 recommendations pertaining to asylum seekers and refugees during its review in May 2011. By mid-term, in an effort to ensure protection of asylum-seekers’ and refugees’ rights, Greece established a new Asylum Service responsible for granting asylum or subsidiary protection. The Central Service is located in Athens and 13 Regional Asylum Offices are also envisioned in the plans. Several regional offices were already operating by mid-term (2014), with more expected to open in the same year. The Asylum Service cooperates with local, regional and international organisations. Greece also established new pre-departure detention centres in different regions of the country to improve the conditions of detainees awaiting travel documents to return to their countries of origin. In order to ensure that detainees are aware of their rights, information from the United Nations High Commissioner for Refugees (UNHCR) is provided at most of the pre-departure detention centres. Furthermore, UNHCR and NGOs have access to the centres and the ability to contact the detainees.

Best practices

Each stakeholder has a role to play in the UPR mechanism, but they should work together towards their common goal of human rights progress. Below are some key examples of best practices for the main UPR stakeholders.

States under Review

 Work towards the implementation of all UPR commitments: voluntary pledges, accepted and noted recommendations.

 Collaborate with national and international partners to implement UPR

 Write a mid-term report to update national and international actors on progress Recommending states

 Consult with civil society organisations to collect information before, during, and after the UPRs of the states under review.

 Make SMART (specific, measurable, achievable, relevant, and time-bound) recommendations to facilitate implementation and reiterate recommendations from the previous cycle that have not been implemented.

 Follow up on recommendations during the implementation period by not only collecting information about implementation, but also offering technical or financial assistance.

Civil Society Organisations

 Work in coalitions with other human rights defenders to increase impact and efficiency through the sharing of resources and knowledge.

 Monitor implementation and write a mid-term report. When possible, work with the government to ensure that implementation of recommendations is effective and sustainable.

 Raise awareness about the government’s commitments at the national level and involve recommending states in implementation activities.

National Human Rights Institutions

 Bring the government together with civil society organisations before, during, and after the review to encourage a collaborative approach to the UPR process.

 Provide information about UPR implementation at the national and international levels through mid-term reports and awareness-raising activities.

United Nations entities

 Incorporate the UPR commitments into thematic, regional, and country activities.

 Work with national actors (the state, civil society, and NHRI) and international actors (other UN offices, international organisations, and recommending states) to increase the impact of implementation.

Table of contents

1. Introduction 13

2. Quantitative analysis of mid-term implementation 15

2.1. Mid-term implementation status 17

2.2. Implementation by regional group 18

2.3. Implementation by action category 20

2.3.1. Category 1 21

2.3.2. Category 2 22

2.3.3. Category 3 23

2.3.4. Category 4 24

2.3.5. Category 5 24

2.3.6. Findings on implementation by action category 25

2.4. Implementation by issue 26

2.5. Implementation by acceptance 29

2.6. Not implemented recommendations 30

3. “Noted” recommendations 33

3.1. Recommendations noted at first, then accepted 34

3.2. Implementation of noted recommendations 34

3.3. Importance of noted recommendations 35

4. Illustrating Implementation 37

4.1. Sexual orientation and gender identity 37

4.3. Women’s rights 39

4.3.1. Gender equality 40

4.3.2. Domestic and gender-based violence 40

4.4. Children’s rights 41

4.4.1. Violence against children 42

4.4.2. Child labour 42

4.4.3. Access to education 43

4.5. Human trafficking 43

4.6. Minorities 45

4.7. Indigenous peoples 46

4.8. Persons with disabilities 47

4.9. Torture 48

4.10. Refugees and asylum seekers 49

5. Lessons learned – UPR stakeholders 51

5.1. Lessons learned – States under Review 51

5.1.1. The three Cs 52

5.1.2. In preparation for the Working Group review 52

5.1.3. Responding to the recommendations 54

5.1.4. Planning implementation 55

5.1.5. Communicating plans 57

5.1.6. Communicating progress 57

5.2. Lessons learned: Recommending States 59

5.2.1. Making recommendations 59

5.2.2. Following up on recommendations 61

5.3. Lessons learned – Civil Society Organisations 62

5.3.1. From the international to the national level 62

5.3.2. Building coalitions 63

5.3.3. Interacting with the government 64

5.3.4. Popularising the UPR 65

5.3.5. Lobbying Recommending states 66

5.3.6. Identifying friendly Recommending states 67

5.3.7. Sensitive issues 67

5.3.8. Using the UPR as a complimentary mechanism 69

5.4. Lessons learned – National Human Rights Institutions 70

5.4.1. Before the UPR 70

5.4.2. Influencing acceptance of recommendations 71

5.4.3. After the adoption of the report 71

5.5. Lessons learned – United Nations entities 72

6. Conclusion 75

7. Methodology 77

7.1. Contacting every stakeholder 77

7.2. Implementation of the Recommendation Index (IRI) 77

7.3. Data 78

7.4. Action categories of UPR Info 80

7.5. List of abbreviations and acronyms 80

1. Introduction

As the first cycle of the Universal Periodic Review (UPR) came to an end in 2012, several aspects of the UPR were deemed successful. Firstly, all 193 UN member states had participated in a review of their human rights records, voluntarily subjecting their national activities to international scrutiny. Secondly, over 21,000 recommendations were issued and 74 percent of those recommendations were accepted by the states under review. Hopes were running high for the youngest child of the UN family.

However, while the participation in the mechanism and acceptance of recommendations are integral to the effectiveness of the mechanism, the main purpose of the UPR is to improve human rights in the member states through the implementation of the recommendations.

States have 4.5 years in between reviews to take action on the recommendations that they receive. Unfortunately, it is not always clear as to the efforts that the states are or are not making because an official follow-up mechanism does not exist at the UN.

States are strongly encouraged to submit mid-term reports, in accordance to Resolution 16/21, but this is not a mandatory requirement. Only at the following review, is the state held accountable for the implementation, or lack thereof, of the UPR recommendations.

Too often, states have rushed towards implementation only as they began to prepare the national reports for the subsequent reviews, resulting in the “checking off of boxes”, rather than addressing root causes of complex problems. Furthermore, in a rushed attempt to save face before the international community, governments take action without the consultation and participation of civil society and other national actors – an unsustainable approach to human rights.

In response to these problems, UPR Info created the Follow-up programme in 2011 with the intention of encouraging all UPR stakeholders to more actively participate in the follow-up to the UPR recommendations. Not only was the Follow-up programme meant to serve as a reminder of the UPR commitments made, but also as a platform for evaluation and discussion of real human rights progress. The outputs of the programme were the Mid-term Implementation Assessments (MIAs), which provided information from all UPR stakeholders on the implementation of recommendations, 2.5 years after the initial review, in 165 countries.

With the information derived from the MIAs, we now know that action was triggered by mid-term for 48 percent of the recommendations for which we received comments (over 11,500 recommendations). This means that 48 percent of recommendations were either partially or fully implemented 2.5 years after the review. Real progress was illustrated for a wide variety of vulnerable groups: children, minorities, women, people with disabilities, and many more. The potential of the UPR is yet to be fully exploited,

but stakeholders are continuously learning from their experiences and perfecting their approaches. The following chapters of this study present the quantitative and qualitative illustrations of the first cycle mid-term implementation and provide the lessons learned from states, civil society organisations, national human rights institutions, and UN agencies. The UPR is a very young mechanism and all of us are still in a learning phase. We hope that this study will help all stakeholders to learn from one another, thus benefiting from a world of creative human rights defenders who work tirelessly to ensure that international human rights standards remain exceptionally high.

World Map of UPR implementation (165 countries)

2. Quantitative analysis of mid-term implementation

Over the four-year period of UPR Info’s Follow-up programme, information was systematically collected about the implementation of UPR recommendations by mid- term, that is, in between two reviews. For the 165 countries included in the programme (UPR sessions 2-12), relevant UPR stakeholders for each country were asked to comment on a total of 20,452 recommendations. UPR Info received more than 800 civil society submissions, 27 submissions from NHRIs, 37 UN agency inputs and 30 mid- term reports from states. Over the course of the programme period, the number of state mid-term reports was sporadic, but did increase toward the end. A total of 11,527 recommendations, or 56 percent of the potential recommendations, were commented upon by the various stakeholders. Comments were not received for all possible recommendations due to a lack of expertise on the topics of the recommendations, a lack of knowledge regarding actions taken to implement the recommendations, or to a lack of human resources.

The comments received from all of the stakeholders were compiled into Mid-term Implementation Assessments (MIAs) for the 165 countries¹. UPR Info developed the Implementation of the Recommendation Index (IRI) to categorise the level of implementation for the UPR recommendations that each State under Review (SuR) received². The three levels of implementation included: (1) not implemented, (2) partially implemented or (3) fully implemented. Recommendations regarding which action had not been taken by mid-term, were marked as “not implemented”; when some action had been taken to implement the recommendation, an index of “partially implemented” was assigned; and, finally, a recommendation was determined to be

“fully implemented” when action was taken to thoroughly fulfil the demands of the recommendation.

While the information presented in the quantitative section of this report is unique and important in shedding light on the impact of the UPR mechanism, the reader should be wary of the limited nature of such data. Firstly, one should take into account that the structure of the participation can vary from one state to another, which impacts the

1 MIAs can be consulted on the Follow-up programme’s webpage: http://www.upr-info.org/followup/

implementation level. For the assessment on Kenya³, for example, all four types of actors⁴ provided information. In the case of Ireland⁵, a broad range of actors, except UN agencies, took part in the assessment. For the United States⁶, only one sort of stakeholders, CSOs (24 NGOs and coalitions of NGOs), commented on implementation of UPR recommendations. States tend to report extensively on the activities that they undertook in the aftermath of the UPR, while NGOs are usually more critical and report on the needs of their government to do more. Thus, the over or under-representation of the different participants can augment or diminish the final rate of implementation.

Secondly, the UPR is a dynamic process and, as can be seen from the “lessons learned” section of this publication, the way in which the UPR stakeholders engage in this process is constantly changing. The data presented provides insight into the mid- term implementation of the first UPR cycle, which may not look the same as that of the second cycle. Given increased interest of all stakeholders to use the UPR mechanism and the improved engagement with the mechanism, the mid-term implementation for second cycle UPR recommendations may trigger much more action on the ground.

Finally, although data has not been collected to indicate at which points in the implementation period the SuRs are most active, anecdotal evidence suggests that some SuRs tend to rush towards implementation in the second half of the implementation period, in anticipation of their upcoming reviews. Thus, the overall rate of implementation may actually be higher than the mid-term implementation data suggests.

Bearing the aforementioned in mind, both the volume of the collected data (11,527 recommendations assessed) and the consistency of the results with our previous study in 2012⁷ give us good reason to believe that this study provides an accurate depiction of the impact of the UPR on the ground.

3 See MIA of Kenya at: http://www.upr-info.org/followup/index/country/kenya

4 The government, civil society organisations, UN agency and the National Human Rights Institution.

5 See MIA of Ireland at: http://www.upr-info.org/followup/index/country/ireland

6 See MIA of USA: http://www.upr-info.org/followup/index/country/united_States

7 “On the Road to Implementation” UPR Info (2012) see http://s.upr-info.org/OnTheRoadtoImpl

2.1. Mid-term implementation status

The quantitative part of the study relies on a substantial amount of data. Of the 11,527 commented recommendations, 2,068 (18 percent) recommendations were fully implemented at mid-term, 3,428 (30 percent) were partially implemented and 5,602 (48 percent) were not implemented at mid-term. For 429 (4 percent) of the recommendations commented, the information provided by the stakeholders was not sufficient for determining the Implementation of the Recommendation Index (IRI).⁸

Although 48 percent of the recommendations are not implemented by mid-term, the glass may be seen as half-full rather than half-empty. The data also indicates that 48 percent of recommendations were either fully or partially implemented, while only half of the implementation period had already passed. In other words, almost 48 percent of recommendations “triggered” an action at mid-term, suggesting that the commitments made at the UPR are not simply lip-service to human rights, but that they do result in action on the ground.

It is worthwhile to mention that a substantial part of the information upon which the analysis relies was provided by CSOs, who tend to be more critical of the government’s

fully impl. partially impl. not impl. not assessed 18%

30%

48%

4%

Mid-term implementation of commented

recommendations

human rights record. Thus, the final percentage of implementation may be even more promising for the future of the UPR.

2.2. Implementation by regional group

Although UPR Info offered the possibility to participate on a universal and inclusive basis, the actual participation (determined by the number of recommendations commented) in different regional groups varied⁹. The regions with the most participation were Asia and Africa, representing 29 percent and 27 percent of the commented

recommendations, respectively. The least participation was on behalf of Eastern European Group (EEG) and the Latin American and Caribbean Group (GRULAC) with 14 percent and 11 percent, respectively. Participation rates can be explained by the number of country members in each group, as well as the engagement (or lack thereof) of the states’ governments or civil society with the UPR at mid-term.

Within each regional group, the percentages of recommendations that triggered action at mid-term are promising. In Africa, action was taken on 50 percent of the commented recommendations, in Asia on 33 percent, in EEG on 63 percent, in GRULAC on 49 percent, and in WEOG on 53 percent.

9 Regional groups are based on the UN classification : http://www.un.org/depts/DGACM/RegionalGroups.shtml

Africa Asia EEG GRULAC WEOG

29% 27%

14% 11%

19%

Participation by regional group

Of the five regions, the EEG has the most promising rates of implementation at mid- term with 63 percent of recommendations triggering an action and only 34 percent of recommendations not implemented.

On the other hand, Asia had a low rate of implementation, with 11 percent of recommendations fully implemented, 22 percent partially implemented and the highest percentage of not implemented recommendations: 63 percent. Although the rates of implementation in Asia are discouraging, one should also bear in mind that Asia, as a region, covers countries that are very different in their nature, from Saudi Arabia to South Korea. If we examine the region in greater detail, we find substantial differences.

In Mongolia¹⁰, for example, 55 percent of the recommendations triggered action by mid- term. In Saudi Arabia¹¹, on the other hand, an assessment was impossible because none of the stakeholders took part in the Follow-up programme. Therefore, a broad explanation for why the UPR is less successful in Asia compared to other regions is not possible and further studies should be carried out by sub-region.

Finally, Africa fared well with 50 percent of recommendations triggering an action and 46 percent not implemented at mid-term. We find a very active civil society in this regional group and, often, very committed governments. While Africa is not the region with the highest implementation rate, it seems that, from a qualitative approach, exciting changes are happening thanks to the UPR.

Africa Asia EEG GRULAC WEOG

18%

11%

27%

12%

24%

32%

22%

36% 37%

29%

46%

63%

34%

47% 44%

Implementation by regional group

fully impl.

partially impl.

not impl.

not assessed

Category 1 Category 2 Category 3 Category 4 Category 5 1%

14% 8%

43% 34%

Categories of commented recommendations 2.3. Implementation by action category

Although many UPR recommendations are issued and accepted, recommendations are not made equal when it comes to their potential impact on the human rights situation. In order to better understand the quality of recommendations that are made at the UPR, University of Vermont Professor Edward McMahon, with the support of UPR Info, created a classification system on a scale of 1 (minimal action) to 5 (specific action).

The category of the recommendation is decided according to the verb of the recommendation¹². Recommendations of category 1-3 are usually easier to implement because they do not require costly actions from the state under review. Category 4 recommendations can also be relatively easy to implement because the recommendations are so vague that even minimal action can be perceived as effort toward implementation. At the same time, category 4 recommendations are difficult to assess because they do not indicate how the recommendations should be implemented or the tangible outcome of the implementation. Specific recommendations of category 5 are sometimes more difficult to implement because they require precise action, but they are easier to assess for that same reason. In the context of the UPR, category 5 recommendations have the most potential to impact the human rights situ- ation because these recommendations leave the least amount of room for window- dressing of the human rights efforts taken by the state.

Of the 11,527 recom- mendations that were commented in the Follow-up programme, the most common categories were 2, 4, and 5, as is illustrated in the graph above. This reflects the general trend of the type of recom-

mendations that Recommending states make in the UPR. The high rate of general recommendations is explained by the fact that states do face diplomatic or other

12 More information regarding the action categories can be found in the methodology section of this publication.

constraints for making precise recommendations. At the same time, the rate of category 5 recommendations (at 34 percent) is encouraging because these recommendations are easy to assess and can help to identify the concrete actions taken to improve human rights. It is, therefore, useful to examine the categories of the recommendations in greater detail.

As expected, the graph above indicates that full implementation declines from category 1 to category 5. Non-implementation increases, from category 1 to 5, with the exception of category 3. Each category is discussed further in the following sections.

2.3.1. Category 1

Seek the assistance of the international community [...]

Category 1 recommendations call upon the SuR to share best practices or seek technical or financial assistance. Although this does require some action and political will on the part of the SuR, it is a category that calls for minimal action compared to the other categories. Since asking for international assistance is not usually controversial, it is not surprising to see that category 1 recommendations have a high rate of full implementation at mid-term, 33 percent.

1 2 3 4 5

33% 30%

26%

16% 13%

21%

34%

21%

36%

23% 22%

31%

48% 45%

62%

24%

5% 6% 3% 3%

Implementation within action categories

fully impl.

partially impl.

not impl.

not assessed

2.3.2. Category 2

Continue advancing in the fight against torture [...]

Category 2 recommendations call upon the state under review to continue action.

Often, these recommendations are easy to implement as they do not require the state to change its policies, but to continue them. However, continuation of certain actions or policies can prove to be a challenge when faced with economic crisis, political

33%

20%

23%

24%

Implementation status for action category 1

fully impl.

partially impl.

not impl.

not assessed

30%

34%

31%

5%

Implementation status for action category 2

fully impl.

partially impl.

not impl.

not assessed

insecurity or conflict. Within this category, 64 percent of commented recommendations triggered action and 31 percent of recommendations were not implemented at mid- term.

2.3.3. Category 3

Consider alternative non-custodial measures for migrants in an irregular situation [...]

Recommendations that call upon the SuR to “consider” an action fall under category 3.

Recommending states will often use such language to soften the recommendation when the issue at hand is controversial and is not supported by the SuR. This explains why 48% of category 3 recommendations are not implemented by mid-term.

26%

21%

48%

5%

Implementation status for action category 3

fully impl.

partially impl.

not impl.

not assessed

2.3.4. Category 4

Take further steps to provide access to education and healthcare for all citizens [...]

The category 4 recommendations are the recommendations that contain a general element. Such general recommendations can cause frustration on the part of UPR stakeholders, including the state under review, because the recommendations are unclear in regard to the means of implementation or the measurable outcome. At the same time, such recommendations are more easily implemented due to the fact that implementation is open to interpretation. Even a minimal action can be interpreted as partially or fully implemented. This is, perhaps, the reason why, at mid-term, 16 percent of category 4 recommendations were fully implemented, 34 percent were partially implemented, and 45 percent were not implemented. In other words, 52 percent of category 4 recommendations triggered action by mid-term.

2.3.5. Category 5

Commute all death sentences to terms of imprisonment

Category 5 recommendations usually cover precise topics, ask for specific actions and demand certain tangible or measurable outcomes. The ease with which category 5

16%

36%

45%

3%

Implementation status for action category 4

fully impl.

partially impl.

not impl.

not assessed

recommendations can be implemented varies according to the situation, but such recommendations provide the SuR with very clear directions, which allow for easy monitoring of implementation. While SuRs indicate that general recommendations are difficult to implement because the action is unclear, specific recommendations are also the least likely to be implemented by mid-term. As illustrated in the pie chart below, within category 5 recommendations, only 35 percent triggered action and 62 percent were not implemented at mid-term. Category 5 recommendations have the lowest rate of fully implemented recommendations at mid-term and the highest percentage of recommendations that are not implemented at mid-term.

2.3.6. Findings on implementation by action category

As is demonstrated in the previous sections, the less action that a recommendation demands, the more likely it is to be fully implemented by the mid-term. But this does not necessarily translate to progress in the human rights situation. Almost 52 percent of category 4 recommendations triggered action, but the general nature of the recommendations means that even minimal action can be claimed as steps towards progress. Category 5 recommendations triggered the smallest percentage of action by mid-term, at 35 percent, but considering that these recommendations are usually the most difficult to implement and result in the most concrete progress, the percentage is encouraging.

13%

22%

62%

3%

Implementation status for action category 5

fully impl.

partially impl.

not impl.

not assessed

2.4. Implementation by issue

The “universal” in Universal Periodic Review alludes to the possibility for all UN- member states to make recommendations and to be reviewed. However, it also references the universality of the topics covered in the UPR. UPR Info maintains a database of all UPR recommendations and voluntary pledges that are tagged according to the topics of the recommendations. The database contains 54 different issue categories. Many recommendations pertain to several issues, thus they are tagged with more than one category¹³.

In the commented recommendations included in this study, the 10 most discussed issues were international instruments (4,043 recommendations); women’s rights

13 A recommendation can belong to several issues. For example, "ratify OP-CAT" will belong both to the category international instruments and torture and other cruel, inhuman, or degrading treatment or punishment.

4043

3515 3323

1649 1494

1042 900 881 852 834

Top-10 most raised issues

(3,515); rights of the child (3,323); torture and other cruel, inhuman, or degrading treatment or punishment (1,649); justice (1,494); detention conditions (1,042); human rights education and training (900); death penalty (881); right to education (852); and special procedures (834).

As for implementation, the top-10 most implemented issues, were women's rights;

rights of the child; international instruments; justice; torture and other CID treatment;

minorities; detention conditions; human rights education and training; right to education;

and disabilities. The categories listed are general in nature and may overlap, but the list gives us an important indication as to the issues regarding which the most progress has been made. At the same time, we see that the recommendations that were raised the most are also implemented the most.

The graph above focuses on recommendations that triggered action in absolute numbers. But, because these are also issues regarding which many recommendations

1114 1086

767

415 335 313 306 294 292 286

Top-10 "Triggered action" issues (total)

detail. If we take another perspective and we look at the proportion of recommendations that triggered action compared to the total number of the recommendations commented on that very same issue, the top-10 list results in a different set of most-implemented human rights issues. We discover the internal dynamic within each issue and see that some issues are highly implemented by states:

Within the issue of HIV-Aids, for example, 61 recommendations were either partially or fully implemented out of the 78 commented, which means that 78% of the HIV-Aids recommendations triggered action by mid-term. What is interesting in the top-10 triggered action issues indicated in the graph above is that for many of these issues, international efforts, such as specialised UN agencies, exist to help states.

Chapter 4 will attempt to illustrate, in further detail, the actions that SuRs took to implement the UPR recommendations on specific human rights issues.

78%

68% 67% 67% 66% 66% 64% 64% 63% 63%

Top-10 triggered action recommendations

(percentage)

78%

21%

1%

Acceptance rate of commented recommendations

Accepted Noted

Voluntary Pledge

Accepted Noted Voluntary Pledge

21%

5%

34% 35%

14%

32%

41%

77%

21%

4% 4%

12%

Implementation by response

fully impl.

partially impl.

not impl.

not assessed

2.5. Implementation by acceptance

For the 11,527 reco- mmendations on which UPR Info received information, approximately 78 percent were accepted recommendations, 21 percent were noted and 1 percent of recommendations consisted of voluntary pledges¹⁴. While fewer com-

ments were received regarding “noted” recommendations due to the reluctance of stakeholders to undertake monitoring of noted recommendations, the distribution of implemented recommendations in the data is close to the distribution of UPR recommendations in general (73 percent accepted, 25 percent noted, and 2 percent are voluntary pledges).

A closer look into the implementation of voluntary pledges, and accepted and noted recommendations indicates that, at 66 percent, voluntary pledges trigger the most action by mid-term. Accepted recommendations also trigger a high rate of action, 55

1 2 3 4 5 1%

9% 8%

39% 43%

Action categories of not implemented recommendations

percent. Intuitively, since noted recommendations are recommendations considered as

"rejected" by the SuR, one would think that these recommendations are not implemented at all. However, as the study finds, noted recommendations trigger action anyway (19 percent). A more detailed discussion of noted recommendations can be found in chapter 3.

2.6. Not implemented recommendations

In total, 5,602 recom- mendations, or 49 per- cent of the commented recommendations, were not implemented. Why are recommendations not implemented? Firstly, as the previous section shows, the acceptance of recommendations plays a

role in the implementation; recommendations that are not accepted tend to be implemented less. Often, the reasons for not accepting recommendations are still relevant at mid-term and, thus, the state does not take action in regard to “noted”

recommendations.

In terms of action categories, the highest percentage of recommendations that are not implemented are category 5 recommendations (43 percent), although category 4 is not far behind at 39 percent of recommendations not implemented at mid-term.

As for the top-10 issues that were not implemented, we see that many of the same issue categories that are raised the most in the dataset are also issues with most not implemented recommendations, such as international instruments, rights of the child, and women’s rights. These categories simply contain many recommendations, which is why they feature prominently in the lists of most raised, most implemented, and most not implemented recommendations.

However, if we look at the percentage of not implemented recommendations (in relation to commented recommendations) within the same issue category, we see the following list of issues emerge: freedom of movement, right to land, death penalty, freedom of the press, freedom of opinion, human rights defenders, counter-terrorism, freedom of association and peaceful assembly, extrajudicial executions, and torture. For freedom of movement, for example, 46 out of the 51 commented recommendations were not implemented, resulting in 90 percent of freedom of movement recommendations not implemented by mid-term.

1301

720 699 651

436 341 314 271 266 249

Top-10 not implemented issues (total)

90% 80% 77%

70% 69% 69% 68% 66% 65% 65%

Top-10 not implemented issues - percentage

The issues listed in the above graph may be difficult to implement at the national level due to lack of political will. Many of the above-listed issues touch upon the control that the government maintains over its population, such as the freedoms of movement, association, opinion, and press. Such control is especially difficult to relent for regimes that tend to centralise power.

3. “Noted” recommendations

According to Resolution 5/1 of the Human Rights Council: Recommendations that enjoy the support of the State concerned will be identified as such. Other recommendations, together with the comments of the State concerned thereon, will be noted¹⁵. Thus, states can either accept or take note of recommendations received during the UPR process. The reasons for “noting” recommendations, rather than accepting them, vary and SuRs should provide clear explanations regarding “noted”

recommendations. Often, recommendations are noted because the government believes that it cannot implement the recommendation within the 4.5-year timeframe until the next UPR. However, the negative response can be temporary, as is sometimes clearly indicated. Malaysia, for example, stated in the addendum to its second cycle working group report that “While unable to accept certain recommendations, Malaysia does not completely reject the possibility of revisiting those recommendations, as appropriate”¹⁶. The temporary nature of the noted response is also illustrated by the fact that 19 percent of “noted” recommendations triggered action by mid-term.

The following sections provide examples and explanations regarding actions taken on noted recommendations.

5%

14%

77%

4%

Implementation of "noted" recommendations

fully impl.

partially impl.

not impl.

not assessed

3.1. Recommendations noted at first, then accepted

Over the course of the UPR cycles, there have been several cases in which states initially noted, but, later, accepted recommendations. Sometimes, this is due to a change in the domestic political climate or to the influence of national actors, such as civil society or the NHRI, on the decision of the state.

Some examples of states accepting recommendations after initially noting them include the cases of Rwanda, and most recently, Denmark. According to human rights defenders, while Rwanda noted seven recommendations at its review in January 2011, during consultations with civil society after the review, the government accepted two of the noted recommendations. In another instance, Denmark, initially accepted 87 recommendations and noted 51 recommendations at its review in 2011, but during the announcement of its mid-term report in 2014, Denmark indicated that it now accepts 20 of the previously noted recommendations¹⁷.

3.2. Implementation of noted recommendations

Of the commented recommendations, 2,464 recommendations were noted. Within that number, 128 were fully implemented. The issues on which noted recommendations were implemented varied greatly. For example, in response to recommendations received during its October 2011 review, Haiti did not accept recommendations that called upon the state to create a national human rights institution in accordance with Paris Principles. Haiti specifically indicated in the Addendum to the Working Group report that it was in the process of considering whether to expand the mandate of the Office for the Protection of the Citizen (Ombudsman) or to create a new institution¹⁸. According to information received at mid-term, the Ombudsman’s office had received

“A status” by the International Coordinating Committee of the National Institutions for the Promotion and Protection of Human Rights (ICC) only two years after Haiti’s UPR.¹⁹

17 For more information, see: http://www.upr-info.org/en/news/denmark-accepts-20-new- recommendations-mid-term

18 A/HRC/19/19/Add.1 http://s.upr-info.org/addhaitis12

19 See MIA of Haiti: http://www.upr-info.org/followup/assessments/session26/haiti/MIA-Haiti.pdf

In another example, during its first UPR in February 2009, Canada did not accept recommendations asking it to re-consider its stance on the United Nations Declaration on the Rights of Indigenous Peoples because it had “concerns with respect to the wording...”.²⁰ However, in November 2010, Canada endorsed the Declaration.²¹

Similarly, Ireland received the following recommendation during its UPR in October 2011: Introduce legislation to implement the European Court of Human Rights judgment in

the A, B and C vs. Ireland case. Although Ireland had not accepted the recommendation at the review, it was fully implemented by mid-term.

3.3. Importance of noted recommendations

As cited earlier, according to the 2006 Resolution 5/1, states cannot reject recommendations that they receive in the UPR process, but only accept or note those recommendations. Furthermore, the resolutions states that: Both will be included in the outcome report to be adopted by the Council. As a result, both accepted and noted recommendations are part of the outcome report. The resolution further states that: The outcome of the universal periodic review [...] should be implemented [...] by the State concerned [...]²². It was undoubtedly envisaged at the beginning of the UPR that states continue to work on noted recommendations in the implementation phase. The 2011 HRC revision, however, brought the concept of accepted recommendations: The second and subsequent cycles [...] should focus on, inter alia, the implementation of

20 A/HRC/11/17/Add.1, http://s.upr-info.org/addcanadas4

“At our interactive dialogue, the Head of Delegation announced that an expert group would be appointed the following month, drawing on appropriate medical and legal expertise, with a view to making recommendations to Government on how this matter should be best addressed. It was therefore impossible for Ireland to accept this recommendation at that time, as that would have pre-empted the outcome of work of the expert group. Since then, legislation has been put in place and the recommendation has been fully implemented.”

Government of Ireland

the accepted recommendations [...]²³ As a result, states now mention "accepted recommendations" when referring to the UPR recommendations on which they are taking action. This practice, however, is not useful in the context of the UPR. Indeed, some states accepted very few recommendations in the first cycle, while others did not accept any recommendations at all. If the UPR stakeholders were to only focus on accepted recommendations, the UPR would become a purposeless exercise. In addition, as explained above, states do implement noted recommendations. Noted recommendations should, thus, remain an essential part of the UPR process for the sake of human rights, as was intended in Resolution 5/1. Aware of the importance of all recommendations, some states have simply accepted all or almost all recommendations received, such as Benin, Cambodia, Mongolia, Paraguay, Sierra Leone, and Uruguay.

To sum up, there are at least 5 reasons to continue working on "noted”

recommendations:

 According to the rules and regulations of the UPR, recommendations cannot be rejected, therefore states can and should continue to work towards their implementation;

 Noted recommendations are implemented to an encouraging extent;

 Noted recommendations can be accepted at a later stage, such as the next UPR;

 If we do not work on the noted recommendations, it could become a carte blanche allowing certain states to ignore the most meaningful recommendations (in terms of improvement of human rights for its citizens);

 Recommending states that suggested a noted recommendation can reiterate the same issue again in the next cycle, thus demonstrating the temporary nature of noting recommendations.

The Human Rights Council should take advantage of this promising figure – 19 percent of “noted” recommendations triggered an action by mid-term – and clarify the status of noted recommendations as was originally outlined in Resolution 5/1, which did not make a significant distinction between accepted and noted recommendations.

23 A/HRC/RES/16/21, paragraph 6 http://s.upr-info.org/resolution16_21

4. Illustrating Implementation

While the quantitative analysis presented in the previous chapters provides important information regarding implementation of recommendations at the mid-term, it is also important to know what types of recommendations were implemented and how they were implemented. The following sections illustrate actions that were taken on recommendations regarding sexual orientation and gender identity, death penalty, women’s rights, children’s rights, human trafficking, minorities, indigenous peoples, people with disabilities, torture, and asylum seekers and refugees.²⁴ The examples provided could be a source of inspiration for states, CSOs, and all other stakeholders.

4.1. Sexual orientation and gender identity

Sexual Orientation and Gender Identity (SOGI) issues are very contentious. Of the 20,452 recommendations open to comments in the Follow-up programme, only 462 were related to SOGI. Of those, slightly more than half were commented, for a total of 253 recommendations. The graph below illustrates that the majority of the commented recommendations were not implemented at mid-term, although 86 recommendations did trigger action.

fully impl. partially impl. not impl. not assessed 22

66

160

9

Mid-term implementation of recommendations on

sexual orientation and gender identity

According to the Mid-term Implementation Assessments, while much work remained to be done, several actions were taken to promote and protect SOGI rights. In Australia, Ireland, and Thailand, by mid-term, steps were taken to recognise same-sex unions. In Nepal, the government amended the regulation on citizenship to provide citizenship to third-gender citizens with their identity indicated in the passport. In Mozambique, the government had removed wording from the draft Penal Code Review Bill that could have been interpreted as criminalization of homosexual relations. In Honduras, a special investigation unit for violent crimes against LGBTI members was created in the Public Ministry. Finally, in Belgium, two national plans to fight homophobia and transphobia were adopted, one dealing with fighting violence and the other with fighting discrimination.

4.2. Death penalty

The death penalty is another contentious issue in human rights. Of the 20,452 recommendations open to comments in the Follow-up programme, 881 were related to the death penalty. Of those, comments were received for 408 recommendations, less than 50 percent. At mid-term, 314 recommendations were not implemented and 88 triggered action.

Several types of actions regarding the death penalty had been taken by the mid-term.

Mongolia acceded to the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), less than two years after its UPR. Thailand also made progress by withdrawing interpretive declarations to Article 6(5) and Article 9(3) of the ICCPR on the abolition of the death penalty for persons below 18 years of age.

fully impl. partially impl. not impl. not assessed

42 46

314

6

Mid-term Implementation of recommendation on

death penalty

Also in Thailand, the Department of Rights and Liberties Protection had organised seminars about the possibility to abolish the death penalty. Similarly, in Tajikistan, the government had created a working group to consider death penalty abolition and a study was being carried out with the support of the Swiss Development Cooperation Office. Another example is Singapore: although the government did not abolish the death penalty, the country amended the application of the death penalty in certain drug- related or homicide offenses. Finally, a very promising example of implementation of a noted recommendation (more in chapter 3) is found in China. While China did not accept two recommendations to reduce the number of crimes carrying the death penalty, in late February 2011 (two years after the review), the Chinese government announced the abolition of the death penalty for 13 economic crimes, thus reducing the original list of 68 crimes punishable by death to 55.

4.3. Women’s rights

Women’s rights recommendations are the second most-mentioned recommendations at the UPR (3,701 recommendations in the first cycle). As previously demonstrated in

chapter 2.4, at 1,114 recommendations, women’s rights is also the issue with the highest number of recommendations that triggered an action by mid-term. However, the category "women's rights" is broad and encompasses issues that are very different in their nature. The following sections will attempt to outline some of the progress that had

fully impl. partially impl. not impl. not assessed 354

760 699

78

Mid-term Implementation of recommendations on

Women's rights

4.3.1. Gender equality

Countries such as Georgia, Greece, and Myanmar created national action plans for the equality or the advancement of women, an important step for further action. Institutional arrangements, to assist in the national promotion of gender equality, included: the establishment of a Gender Equality Department of the Greek Ombudsman’s office;

creation of 22 District Councils for the Advancement of Women in Mozambique; and the establishment of a Gender Equality Council in Estonia that advises the government regarding promotion of gender equality and gender mainstreaming.

Quotas to increase representation of women in public office were adopted in Honduras, Kenya, and Sierra Leone. In Belgium and in Australia, requirements for increased representation of women on certain company director boards were passed. On the issue of gender-equal distribution of resources, the government in Belgium published a manual on gender budgeting and in Estonia, employees of ministries and government agencies were trained in gender budgeting as part of the EU PROGRESS Programme.

4.3.2. Domestic and gender-based violence

To help plan and take action on gender-based violence (GBV), the issue has been incorporated into action plans, such as into the chapter on gender in the National Development Plan 2010-2014 in Colombia, the second National Plan on the Fight against GBV in Haiti, the National Action Plan on GBV in Thailand and the National Plan of Action on GBV in Namibia. Also in Colombia, a database was created specifically for sexual violence crimes in conflict for the purpose of better distributing resources and directing investigations.

In Haiti, the Bureau de lutte contre les violences faites aux femmes et aux filles (Office for the Fight against Violence Directed at Women and Girls) was inaugurated. In Nepal and Tajikistan, centres that provide legal and psychological support to victims were also created. In Bulgaria and Colombia, legal provisions were enacted to provide legal assistance to victims of sexual or domestic violence.

Other legal measures included the 2012 Sexual Offences Act in Sierra Leone that provides protection from sexual abuse and harassment, establishes 18 as the age of

consent, and explicitly prohibits spousal rape; the Law 779 on violence against women in Nicaragua; and Thailand’s withdrawal of reservations to Article 16 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Finally, training for law enforcement officials was carried out in Sierra Leone and in Haiti.

4.4. Children’s rights

Of the 20,452 recommendations open to comments in the Follow-up programme, 3,323 were on children’s rights. Comments were received for 1,881 recommendations. The graph above illustrates that 341 of the commented recommendations were fully implemented, 745 were partially implemented and 720 were not implemented at mid- term. With 1,086 recommendations, the children’s rights category included the second highest number of recommendations that triggered action by mid-term (after women’s rights).

Some general legal and institutional changes that were made by the mid-term were the creation of the National Children’s Commissioner in Australia; the new Child and Family Agency, as part of reforms of child and family services in Ireland; amendments to the Ombudsman Act to expand the Ombudsman’s competence to child rights in Armenia;

fully impl. partially impl. not impl. not assessed 341

745 720

75

Mid-term implementation of recommendations on

the Rights of the child

development and participation of children in Nepal; and in Sierra Leone, the Ministry of Youth Affairs was inaugurated by the government to create education and employment opportunities for children.

4.4.1. Violence against children

Violence against children comes in many different forms: sexual abuse and sexual exploitation, corporal punishment, or domestic abuse, among others. According to the information provided by UPR stakeholders for the Follow-up programme Mid-term Implementation Assessments, a large variety of actions were taken to implement UPR recommendations. In Belgium, several months after the UPR, an act was passed to improve access to justice for victims of sexual abuse and paedophilia. Also, in the fight against sexual abuse and sexual exploitation of children, the Kenyan government raised awareness in the hospitality and tourist industry, and encouraged hotels and tour operators to sign the Code of Conduct against Child Prostitution. Macedonia also conducted campaigns, in partnership with UNICEF, but on the issue of corporal punishment. Armenia and Togo launched hotlines to facilitate reporting of child abuse.

In addition, Togo created a centralised system to detect vulnerable children and victims of child abuse in collaboration with civil society, UNICEF and private companies.

Finally, in Mozambique, five ministries (Ministry of Health, Ministry of Education, Ministry of Social Action, Ministry of the Interior, and Ministry of Justice) endorsed the multi-sectoral Plan of Action to Accelerate the Prevention and Response to Violence against Children (2012-2017).

4.4.2. Child labour

To combat child labour, an action plan was developed in 2011 in Namibia that coordinates the actions of the Ministry of Labour and Social Welfare, the Ministry of Education, the Ministry of Gender Equality and Child Welfare, and the Ministry of Safety and Security. On a similar note of cooperation, in Haiti, a committee composed of representatives of the government, employers, and employees was created to ensure the implementation of the ILO Minimum Age Convention (no.138) and the ILO Convention on the Worst Forms of Child Labour (no.182). These two ILO conventions were ratified by Sierra Leone in the month following its UPR and the Child Labour Unit