Universal Periodic Review Procedure: Human Rights Council
- Human rights — International organizations, procedure
Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.
A. Human Rights as a Matter of International Concern
1 Human rights is nowadays one of the most important disciplines of international law. The human rights movement, which found its first comprehensive reflection in the Universal Declaration of Human Rights (1948) (‘UDHR’) of 10 December 1948, currently rests on a solid foundation of international treaties and rules of customary international law. Despite their triumphant progress, however, today human rights still suffer from one significant weakness: mechanisms that secure their observance and enforcement exist only in a fragmentary fashion.
2 The United Nations (‘UN’) was established after the horrors of the Second World War as an organization mandated, in the first place, to guarantee international peace and security and thereby at the same time to protect the rights of individual human beings. However, the original intentions were only partially translated into hard legal mechanisms. The UN Charter (‘Charter’) mentions human rights among the ‘Purposes and Principles’ it sets forth in Article 1 (3). Further provisions dealing with human rights are Articles 55 and 68. Yet the Charter remains essentially silent about the ways and means of how to reach the goal of effective enjoyment of human rights by everyone. One of the great obstacles was Article 2 (7) which prohibits the world organization from intervening in ‘matters which are essentially within the domestic jurisdiction of any state’. For many decades after the coming into being of the UN, the prevailing view among international lawyers and politicians was that any acts or measures that touched upon the human rights situation in a given country were incompatible with the Charter. It was considered that even the simple fact of discussing human rights issues went beyond the jurisdiction of the world organization. Nor was it accepted that formal resolutions about such issues could be adopted. Letters received in New York that complained about abusive practices of governments were simply registered; no action was taken on them. Exceptions to this rule of inadmissibility were made only with regard to the apartheid policy of the government of South Africa and the Israeli policies with regard to the Palestinians in the Occupied Territories.
3 In 1966 the two International Covenants on Human Rights were adopted by the United Nations General Assembly (‘UNGA’) by way of consensus (UNGA Resolution 2200 A (XXI) (16 December 1966)), which established respect for and observance of human rights as a standard for all nations, the doctrine of an absolute prohibition of dealing with domestic human rights within the framework of the UN issues fell progressively prey to erosion. The two Covenants embraced the vast majority of any imaginable human rights and provided at the same time for some kind of enforcement mechanism by way of examination of reports or by consideration of individual communications that could be submitted to the Human Rights Committee under the Optional Protocol accompanying the Covenant on Civil and Political Rights. Accordingly, therefore, the traditional dogma according to which human rights were a matter ‘essentially’ within domestic jurisdiction could not be maintained. Human rights became one of the key fields of activity of the world organization. Three different mechanisms of enforcement came successively into being.
B. Enforcement / Monitoring Procedures
1. Review by Political Institutions
4 The first steps were taken even before the entry into force of the two International Covenants in 1976. In 1975, the Commission on Human Rights, the precursor of the Human Rights Council (‘HRC’) (United Nations Commission on Human Rights/United Nations Human Rights Council), decided to set up a working group of five of its members to examine the situation of abominable atrocities in Chile that had arisen after the coup d’état against the Allende Government by general Pinochet (Resolution 8 [XXXI] (27 February 1975)). In the following years, the Commission on Human Rights successively took action against other States in Latin America and Africa, openly criticizing grave human rights violations that had taken place in those States. The standard formula used for the selection of the countries concerned was that a ‘consistent pattern of grave and reliably attested violations of human rights’ had emerged (UN Economic and Social Council (‘ECOSOC’) Resolution 1503 [XLVIII] (27 May 1970)). An objective assessment of this criterion was in most cases extremely difficult. Accordingly, the choice of the countries concerned regularly became a battle between the friends and the foes of those countries, more often than not in accordance with the actual ties to political alliances. The usual practice was then to appoint a rapporteur who, after having visited the country concerned, drafted a report for the Commission on Human Rights and/or the UNGA. On the basis of that report the relevant body expressed its opinion on the human rights situation under review, varying its language from the expression of ‘concern’ to ‘condemnation’ of specific practices. In general, the resolutions had heavy political overtones and were usually considered unsatisfactory, particularly when the governments concerned did not cooperate as in the case of Cuba from 2003 to 2006.
5 The UN Security Council (‘UNSC’) had not been established in 1945 as an institution tasked with upholding human rights. As determined by the Charter, its main responsibility is to maintain international peace and security (Art 24 of the Charter). Clearly, however, peace is the best guarantee for safeguarding the human rights of individuals that may be affected by armed hostilities. In this sense, the UNSC is also enmeshed in the institutional framework for the protection of human rights. In recent years, the UNSC has in fact been officially entrusted with the responsibility to protect human beings against crimes under international law: genocide, war crimes, ethnic cleansing, and crimes against humanity. The act which made that determination, UNGA Resolution 60/1 (16 September 2005), is not binding but reflects a common understanding of UN membership and has thereby acquired the legal value of a norm of positive international law. It is a matter of common knowledge, though, that the UNSC is generally reticent to intervene in controversies about human rights. To date, it has made use of its power to intervene on behalf of a suffering civilian population only once by authorizing willing States to protect the people of Libya against the grave offences perpetrated by the troops of the dictator Muammar al Ghaddafi (UNSC Resolution 1973 (17 March 2011)).
2. Review by Expert Bodies
6 After the coming into force of the multilateral conventions for the protection of human rights that had been elaborated under the aegis of the UN, the ‘enforcement’ system, which consisted essentially of the mild form of monitoring, gained somewhat in strength. The first of these agreements was the International Convention on the Elimination of all Forms of Racial Discrimination (adopted 7 March 1966). Thereafter, the decisive turnaround was the validation of the two International Covenants of 1966, the International Covenant on Civil and Political Rights (1966) (‘ICCPR’) and the International Covenant on Economic, Social and Cultural Rights (1966) (‘ICESCR’). These instruments, which set a precedent for all later multilateral conventions in the field of human rights, provided for a system of examination of reports which the States parties had to submit at regular intervals. The task of reviewing these reports was always entrusted to a committee of independent experts. Although the experts discharged their duties with the utmost diligence, the effectiveness of the procedure suffered originally from the lack of clear rules about the conclusion of the examination. It is only in connection with the demise of socialism as a doctrine for the architecture and functioning of the State, in the period from 1989 to 1992, that the hesitations were overcome. Since that time the expert bodies have generally provided, as an outcome of their scrutiny, an accurate diagnosis of the factual situation in the country under review combined with a legal assessment, dispensing at the same time praise and criticism, always within the limits of their scope of competence.
7 However, dissatisfaction with the existing architecture of monitoring with its two wings, the political bodies Commission on Human Rights and the UNGA, on the one hand, and the numerous expert bodies, on the other, gradually increased. Two main concerns were raised. First of all, it was evident that the States of the world were obviously in an unequal position in respect of surveillance of their human rights practices. By simply refusing to ratify the two International Covenants or another of the subsequent treaties in the field, a State could easily evade any formalized scrutiny of its relevant performance. Thus, China has never submitted to the requirements inherent in the ICCPR, in particular the prohibition on political discrimination, whereas the United States (‘US’) has constantly opposed considerations of principles related to the constraints of an inflated welfare state, against adherence to the ICECSR. The second criticism was the high degree of politicisation of the Commission on Human Rights. Observers noted that more often than not the members of the Commission took partisan sides in performing their functions according to their general political inclination. This came to a head in 2003 when a Libyan diplomat was elected as chairperson of the Commission, at a time when it had generally become known that the dictatorial regime in that country committed constantly grave violations of core human rights.
3. Universal Periodic Review
8 Eventually, in 2005/2006, governments that had complained about the increasing politicisation of the Commission on Human Rights, inspired by UN Secretary-General Kofi Annan’s 2005 report ‘In Larger Freedom’ (at para 182) launched an initiative to replace it by a Human Rights Council. This initiative was unable to reach its primary objective to create an institution at a level of parity with the UNSC or the Economic and Social Council: these two Councils are provided for by the Charter itself so that the creation of a body with equal powers would have required an amendment of the Charter, an undertaking considered politically impossible under the given political circumstances. Accordingly, the UNGA decided by Resolution 60/25 (15 March 2006) to establish the new HRC as one of its subsidiary bodies. This led to some hierarchical upgrading since beforehand the Commission on Human Rights had operated under the authority of the Economic and Social Council. The fact remained, however, that the new body could not be vested with authoritative decision-making power, remaining juridically in the same weak position as its parent body, the UNGA.
C. Universal Periodic Review—Details
9 Whereas the Commission on Human Rights had a membership of 53 States, its seats being distributed according to a fixed scheme (Africa: 15; Asia: 12; Eastern Europe: 5; Latin America and Caribbean: 11; Western Europe and Others: 10), the number of members for the Human Rights Council was reduced to 47 following a slightly different pattern (Africa: 13; Asia: 13; Eastern Europe: 6; Latin America and Caribbean: 9; Western Europe and others: 7). Thus the structural majority of the African and Asian States increased from one to five seats. Clearly, developing countries have succeeded in extending the powerful position they hold in the UNGA to the Human Rights Council.
10 Membership in the Commission on Human Rights had changed from year to year. Every year the ECOSOC elected approximately one third of its members. The mandate was limited to three years. However, a State could be re-elected immediately after the expiry of its former mandate. Powerful States, in particular the Soviet Union and the US, attached significant importance to their almost permanent presence on the Commission. This ensured some kind of continuity in the Commission. According to the new rules under UNGA Resolution 60/251 (15 March 2006) para 7, a State can hold only two successive memberships. Quasi-permanent membership is therefore excluded. For the first time, the Resolution laid down qualitative criteria for membership of the HRC (actual contribution to the promotion and protection of human rights).
11 Unlike its predecessor, the HRC is a permanent body. While the Commission held one main session in the spring of each year, the HRC is instructed to hold no fewer than three sessions every year, the main session to last for no less than ten weeks. This extended presence of the HRC aims to increase its real impact on critical societal occurrences all around the world. The extension of the sessional period was also rendered necessary by the introduction of the mechanism of Universal Periodic Review (‘UPR’) provided for in the resolution establishing the HRC. Indeed, the centrepiece of the UPR process consists of a session in the course of which the countries under review can be interrogated and/or advised by any one of their peers, a procedure requiring 21 full days per year.
12 Since the HRC membership is limited to somewhat less than a quarter of the overall membership of the UN, the question of appropriate representation takes top priority. The permanent members of the UNSC have been denied permanent seats as was the case on the Commission on Human Rights where they were not always successful as candidates. Nevertheless, most of them have generally run as candidates and continue to do so. This is not only a matter of prestige. Since human rights policies permeate all international relations, presence on the HRC serves at the same time to maintain and consolidate a country’s political influence in the world. Countries that have most prominently advocated the extension of the UNSC (Brazil, India, Japan, and Germany) generally show great interest in joining the HRC. The US, which was originally dubious about the HRC after its (re)birth in 2006, withdrew in June 2018 because of its dissatisfaction with the treatment of Israel and its failure to criticize flagrant human rights violations in countries like Venezuela.
2. Guiding Principles
13 The founding UNGA Resolution 60/251 (15 March 2006) provided that UPR was to be a ‘cooperative mechanism’ (at para 5 (e)). Its actual functioning was regulated by HRC Resolution 5/1 (Annex) on ‘Institution-building’ (18 June 2007). This resolution confirms the principles that guide the work of the HRC in its endeavour as well as the objectives of its work, specifies the periodicity and the order of the review, lays down rules for its process and modalities, makes provision for the content and the form of the outcome, and finally takes care of the follow-up to the review. This is a far more elaborate set of rules than anything else that has gone beforehand in the Commission on Human Rights in similar procedures. In contradistinction to the earlier procedures of the Commission, UPR is to be conducted in a ‘non-selective, constructive, non-confrontational and non-politicised manner’ (HRC Resolution 5/1 (Annex), para 3 (g)).
14 The fundamental principle of UPR is the principle of universality. All States members of the UN are to be reviewed as to their balance sheet in the field of human rights, irrespective of their status of ratification with regard to the human rights instruments established under the guidance of the UN. At the same time, it was emphasized that all human rights should be dealt with on equal terms in accordance with the principle of their interdependence, indivisibility, and interrelatedness.
3. Legal Standards
15 Since only a few of the relevant multilateral treaties have reached true universality, the founding resolution (HRC Resolution 5/1 (Annex), para 1) defines as a yardstick for the assessment first of all the Charter and additionally, although it is a non-binding instrument, the Universal Declaration of Human Rights (‘UDHR’); obligations under human rights treaties are mentioned in third place only. This enlargement of the relevant parameters beyond the available stock of truly binding legal instruments is fully justifiable since the HRC does not engage in a judicial assessment proper but is confined to expressing the opinions of its members on the factual elements brought to its cognisance. Concerning the human rights instruments to which a State is party, it was thought to be self-evident that inquiries should be focused only on the obligations contained in such treaties. However, it soon turned out that in particular the two Covenants of 1966 were resorted to by all intervening States against every State under review, irrespective of the status of ratification. In any event, the UDHR has such a broad scope that almost any question can be brought under its cover. In the practice of UPR, few controversies have come up as to the lawfulness of a given question, with the exception of issues related to territorial jurisdiction where, eg, the Russian annexation of Crimea was contentious (Report of the Working Group on the UPR—Russian Federation (12 June 2018) para 148). A similar backdrop was present when Azerbaijan discarded some of the highly relevant recommendations by Armenia as not coming within the purview of UPR (Report of the Working Group on the UPR—Azerbaijan (11 July 2018) para 142). In any event, States are free to answer the queries addressed to them or to refuse to give a substantive response.
16 Resolution 5/1 (18 June 2007) of the HRC, Annex, mentions further voluntary pledges and commitments made by States, including pledges made by them when presenting their candidatures (at para 1 (d)), which is unobjectionably fair since the whole system of human rights monitoring is based on sincerity and credibility. Lastly, Resolution 5/1 enjoins the HRC additionally to take into account humanitarian law (at para 2). Given the close connection between human rights and humanitarian law which embodies the minimum rules of humane conduct even in times of armed conflict, this further extension of the purview of jurisdiction of the HRC also deserves full support although it gave rise to controversy (Abebe, 2009, 6).
4. Cycle of Review
17 The procedure is placed under the sign of periodicity and evolves in cycles. During a term of four and a half years, all members of the UN shall periodically be reviewed. It was originally envisaged to submit 48 States to that exercise each year during three sessions of a working group of two weeks each. Accordingly, at each session 16 States were invited to appear before the HRC (HRC Resolution 5/1 (2007) Annex, para 14). Since at the time of the introduction of UPR the total membership of the UN comprised 192 States, this was a mathematically perfect plan (first cycle from 2008 to 2011). As from the second cycle in 2012, the schedule was changed, the cycle being extended to four and a half years (HRC Resolution 16/21 (25 March 2011) para 3). Since then, 14 countries are reviewed at each session, leading to a total of 193 review meetings (196 minus 3, from 2012 to 2016). At the time of writing, the third cycle is taking place (2017 to 2021).
18 The time schedule could hitherto be implemented almost exactly as originally envisioned notwithstanding some slight changes of dates. No State has refused to appear before the HRC. On one occasion, Israel did not appear before the Working Group of the HRC as scheduled for 29 January 2013; after an arrangement had been found, the review took place on 29 October 2013. Thus, the procedure corresponds fully to the principle of universality as set out in the founding resolution of the UNGA. Under institutional terms, no State is granted a privileged position. They have all accepted to be treated according to the principle of sovereign equality.
5. The Interactive Dialogue
19 The centrepiece of UPR is constituted by an open session in the form of an interactive dialogue of a duration of originally three hours that was later extended to three and a half hours. In practice, openness is mainly ensured through transmission via the internet. The review body is a Working Group of the HRC composed of all 47 members of the HRC. The Working Group has before it three documents, all publicly available: first, a national report prepared by the State under review itself (of a maximum of 20 pages) in a broad consultative process with civil society; second, a compilation of available UN information about the State under review (‘SuR’), prepared by the Office of the UN High Commissioner for Human Rights (‘OHCHR’) (ten pages); and lastly, a summary of ‘credible and reliable’ information received by the OHCHR from various sources, including non-governmental organizations (‘NGOs’) (ten pages). The collection and selection of these submissions is also prepared by the OHCHR. NGOs are not authorized to intervene directly in the interactive dialogue but enjoy every opportunity to provide the information they deem to be important to the OHCHR as well as to the different governmental delegations (see Abebe, 2009, 25–30; Chauville, 2014, 103–7; Schokman and Lynch, 2014, 126–46). These indirect channels of information are open and are extensively canvassed by the States that have an interest in taking a stance on the situation in the country under review. The available 210 minutes are further reduced by the 70 minutes allotted for the presentation of the national report and any information provided in response to the questions put or any concluding comments by the State under review (see Modalities and practices for the universal periodic review process, Presidential Statement (9 April 2008)). The remaining time, namely 140 minutes, must be distributed among the delegations desirous of intervening. Member States have the right to speak for three minutes while observer States have to content themselves with two minutes. If the available time is not sufficient to accommodate the wishes of all delegations, speaking time is reduced to two minutes for all. Ultimately, where demand is high, the available time must be divided equally among all delegations. For example, in the case of Cuba, this meant that no delegation had more than one minute to put on record its observations. Given these constraints, States are also authorized to supply questions in advance.
20 Comments, including questions and recommendations, can be put to the State under review not only by the members of the HRC, but also by other UN Member States as observers. In order to facilitate the review, a group of three (State) rapporteurs are formed for each instance. The selection is made by drawing lots, the proviso being that the rapporteurs must come from three different groups. In this regard, the country under review may request that one of the rapporteurs belong to its own regional group. An overview of the current practice shows that the rapporteurs play at best a marginal role. The other governments do not wish to be pushed into the background. Wherever they identify an issue they deem crucial, they wish to express themselves freely and without any dominant leadership by the rapporteurs.
21 In order to forestall any attempts at manipulation, which had occurred at the early stages of the review process when delegations had inscribed their names during the night before the opening of the session, a rule was introduced stipulating that the delegations take the floor in alphabetical order, the first one being determined by drawing lots. This proviso has proved extremely salutary. No delegation can gain an advantage by hastily racing ahead. The alphabetical order rule prevents like-minded States from making a lengthy appearance in dense continuity. The international community shows its true diversity in the mixed delivery of statements from different political and ideological backgrounds.
22 The strict time limitations lead to serious shortages in instances where numerous States intend to make comments and observations. One of the high points in the history of UPR was the review of Cuba on 16 May 2018. On that occasion, no less than 143 delegations made statements; additionally, 12 States had prepared questions in advance that had been sent to the Cuban delegation ahead of the meeting. In the review of China in 2013, 137 delegations took the floor. It goes without saying that such high demand for time of comment and questions creates serious shortages. The UN bureaucracy has resisted the temptation simply to extend the sessions. The relevant decisions of the HRC allow no derogations, and indeed the time limits are strictly enforced through controlling the microphone. The question may legitimately be raised whether statements of less than three minutes, going down to one minute in extreme cases, make sense or expose the entire procedure to ridicule. Indeed, in some instances the record only notes that the intervenor simply wishes to welcome the delegation of the State under review (Czechia in the review of China, Report of the Working Group—China (4 December 2013) para 64; in the review of Myanmar, Report of the Working Group—Myanmar (23 December 2015) para 46). On the one hand, it is true that in one to three minutes no serious argument can be fully developed. The observations put forward must be condensed to the extreme. On the other hand, one may also discern some benefit in extreme brevity. Delegations, being placed under harsh time pressure, are necessarily prevented from making ceremonial or purely political comments. The diktat of brevity amounts to an educational lesson in soberness. On the other hand, if quite a number of delegations make the same short comment on a crucial issue like, eg, the death penalty, the message cannot be ignored that in the country concerned a serious problem exists. Obviously, countries from the same ideological group can easily coordinate their strategies in order to ensure their comments have a greater force of penetration.
23 The outcome of the review carried out by the Working Group of the HRC is carefully documented in the Report provided for by HRC Resolution 5/1 (2007). Para 26 of the resolution suggests that the Report consist of three sections, first, a summary of the proceedings, a second section detailing the conclusions and/or recommendations by the participating delegations, and finally a section setting out the voluntary commitments assumed by the State concerned. This proposed outline makes clear once again that the UPR process is not meant to lead to a binding result. States are entirely free to accept or reject the comments and recommendations addressed to them. Each State has the last word. No collective assessment of the State under review is foreseen.
24 States have very simple options. They can accept some of the recommendations made, either in straightforward form, by signalling that a specific recommendation enjoys their support, or by making ‘voluntary pledges and commitments’ (see, eg, Report of the Working Group—Canada (11 July 2018) sec III, paras 144–45; Report of the Working Group—Colombia (9 July 2018) para 123). Alternatively, they may put on record that they need further time for reflection, the usual formula being: the recommendations ‘will be examined’. The words that a recommendation ‘is noted’ has a mostly negative connotation. Lastly, it can be stated that some recommendations do not enjoy support or that they are openly rejected (comments by Chauville, 2014, 99–102). Regarding the practice, one may note that States are less and less willing to accept any recommendations immediately. The prevailing tendency is to reserve one’s position and to promise a definitive answer during the next session of the HRC (see, eg, Report of the Working Group—China (4 December 2013) para 186; Report of the Working Group—Germany (11 July 2018) para 155).
25 A vivid picture of the human rights culture in some States can be gained from statements that reject the recommendations made to them. The Working Group report on Syria (27 December 2016) is particularly revealing in this regard. Syria received no less than 203 recommendations which the Report accurately lists in a first section of para 109 as needing further reflection (‘will be examined’). A second section (at para 110) comprises comments and recommendations that ‘did not enjoy the support’ of the Syrian Arab Republic even though these rejected recommendations do not reveal any unacceptable features. Thus, the US recommended: ‘Cease violations against civilians immediately and enter into good-faith negotiations on a political solutions to the conflict’ (at para 110.5); Turkey concluded: ‘Stop the systematic use of ill-treatment and torture’ (at para 110.20); France sought to motivate the Syrian government as follows: ‘Immediately free unconditionally all persons arbitrarily detained by the Syrian authorities, as a priority women, children and older persons’ (at para 110.22). All these are requests pursuing goals of a humanitarian character, although they undoubtedly have inevitably political overtones. Yet, human suffering does not provide a reason for the Syrian government to change its conduct. It explains in para 111 of the Report that the authors of these recommendations are ‘parties in the war against the Syrian Arab Republic’ or ‘adopt extremely hostile positions’ against Syria. Thus, the confrontation before the HRC is not viewed as a battle for human rights but rather as a continuation of the overarching political conflict at the inter-State level.
26 The review process is not terminated as soon as the Report of the Working Group has been drafted with the active cooperation of the State under review, which is authorized to see that its own observations are correctly reflected in the document. In fact, the report of the Working Group is generally issued shortly after the end of the interactive dialogue, ideally within 48 hours if possible, which presupposes the active engagement of members of the Secretariat assisting the three rapporteurs (underlined by Cowan and Billaud, 2017, 106–26). However, the final outcome will have to be formally adopted by the plenary of the HRC. It takes some weeks or months to reach this final conclusion since the State concerned is given the opportunity to respond in specific terms to all the recommendations submitted. A one-hour meeting is scheduled before the adoption. During this short period of time, all actors involved may make comments as they see fit. At this juncture, other stakeholders, including NGOs, are allowed to make a request for the floor in order to present ‘general comments’. Obviously, scarcity of time is again an impediment since an hour is only 60 minutes. At that late stage, any comments and observations are solely destined for the record since the text of the report stands and will no longer be modified.
27 At the end of the day, the outcome of the review process lies entirely in the hands of the State concerned. Three kinds of responses are contemplated. They are given in two stages. The report of the Working Group reflects those responses that can be given at the end of the interactive dialogue up to the finalizing of that report without any lengthy deliberations. Second, it is expected that before the adoption of the final outcome the State under review will comment on each of the recommendations in a written submission, providing explanations of what problems may arise and what steps it intends to take to comply with the wishes expressed by its peers (HRC Resolution 16/21 (25 March 2011) para 16). It has emerged that the standard formula of a recommendation ‘having the support of the State’ concerned, more often than not reveals rather little about concrete consequences. Not all States provide detailed explanations to make clear how the problems raised will actually be dealt with. Regarding female genital mutilation (‘FGM’), Sudan confined itself to stating that the recommendations of no less than ten States calling for its abolition enjoyed its support (Report of the Working Group—Sudan (11 July 2016) para 138) but it did not provide any additional details about measures to be taken, confining itself to the statement: ‘FGM is being combated by both awareness raising and preventing the practice’ (Report of the Working Group—Sudan (Addendum) (9 September 2016) 6).
28 In any event, the written submission delivered after the conclusion of the interactive dialogue (Addendum 1 to the report of the Working Group) constitutes the centrepiece of the record. China pointed out that it accepted 204 of the 252 recommendations it had received (Report of the HRC on its twenty-fifth session (17 July 2014) para 803). The relevant document contains, accordingly, a fairly comprehensive diagnosis of the legal and practical position in the country concerned (see, eg, Report of the Working Group—Germany (Addendum) (11 September 2018)), however, may omit essential elements of information. In any event, it lays the ground for questioning at future UPR sessions.
29 HRC Resolution 5/1 (2007) has refrained from establishing a specific mechanism for follow-up monitoring. It would appear that such a mechanism would not have reached consensus among the members of the HRC. Instead, Resolution 5/1 states that the subsequent review should focus, inter alia, on the implementation of the preceding outcome (at para 34). It stands to reason, in any event, that the actors of the review process enjoy unrestricted freedom to raise once more issues that were debated during the earlier stages of the process. States do not forget the items that motivated them to intervene in the review and will return to them if they feel that they are pursuing vital interests of the population concerned.
D. General Assessment
1. The Unity of Human Rights
30 The architecture of the UPR process has several great advantages over the monitoring by the treaty bodies. First, all human rights, of whatever category, can become the object-matter of the review. No fences between the different classes of rights prevent an intervening State from focusing primarily on the rights the protection of which it sees as a priority in the country concerned. However, the interactive dialogue will never be one-sided, given the diversity of viewpoints and preferences. Thus, the unity of human rights becomes a living reality as reaffirmed by UNGA Resolution 60/251 (2006) Preamble, para 3. As a result, a better equilibrium can be established in the human rights record of countries that are marred by weaknesses in one specific sector. China, which continually emphasizes the importance of economic and social rights, can boast of considerable achievements in that sector while rightly remaining subject to harsh criticism with regard to civil and political rights. Although China has hitherto refrained from acceding to the ICCPR, questions in respect of such rights (for instance, death penalty) may legitimately fall within the scope of the UDHR. Obviously, large deficits regarding respect for civil and political rights cannot be compensated by constructive efforts with a view to realising economic and social rights. Nonetheless, the overall balance sheet is much fairer if both classes of human rights are taken into account.
2. A Collective Exercise
31 Another advantage of the UPR process is constituted by its institutional structure. The procedure of monitoring before the treaty bodies has all the exterior aspects of a defendant appearing before a judge. The State under review stands alone before the body to which it is accountable. It does not enjoy any support from its allies and friends, having to respond to all the questions put under its sole responsibility. It is not visible from the external aspects of the examination of a report that this is a proceeding organized by the international community for the benefit of the international community. In the UPR process, by contrast, since under the system of peer review (cogent analysis by Smith, 2014) every State member of the UN is entitled to participate in the interactive dialogue, a vast presence of other States is institutionally guaranteed. The fact that numerous delegations from like-minded countries are physically present in the conference room amounts to an appreciable encouragement to the delegation under review. More importantly, States wishing to express their sympathy for the policies of the State concerned may take the floor and emphasize the positive aspects that have emerged in the relevant practice. Indeed, the interactive dialogue is not meant solely to highlight the identified deficiencies and failures, but also the positive results in implementing the instrument concerned. Every intervenor knows, additionally, that any comments it makes can be turned against it at a later stage. States are at the same time auditors and auditees. Thus, the interactive dialogue in respect of a given country amounts to a collective effort to improve the human rights situation in that country (Tomuschat, 2011, 616).
32 It is difficult to gauge the effective impact of the UPR process. Critics may maintain that the procedure lacks real teeth, given the fact, in particular, that a collective assessment is not provided for and that the SuR invariably has the last word. True, a more impressive conclusion, true sanctions, are indeed conceivable. But to claim a genuine regime of sanctions shows a failure to grasp the gist of the UPR process. This process aims to bring about change exactly as specified in the founding resolutions, namely by dialogue. On the one hand, the existing deficiencies and irregularities in the legislation and the practices of the country concerned are highlighted by the actors entitled to voice their concerns. They endeavour to submit constructive proposals. The efforts deployed by the States that thus discharge a function of guardians of public interest proceed of course from the assumption that their comments and observations are carefully listened to and that the addressees will ponder all the suggestions made to them in order to verify whether any criticisms are justified and should lead to remedial action according to the model synthesized by Chayes and Chayes (1995). Obviously, the dialogue in open session is not only designed to appeal to the conscience of the leading statespersons of the countries concerned, but also to engender pressure through publicity. Currently, the international community has no more effective tools to deal with patterns of non-compliance in the field of human rights. Only one avenue remains open if a State is alleged to have committed international crimes as identified in UNGA Resolution 60/1 (16 September 2005) para 138, namely genocide, war crimes, ethnic cleansing, or crimes against humanity. In that case, the UNSC is entitled to make use of its powers under Chapter VII of the Charter.
33 Any reliable assessment of the effectiveness of the UPR review process would presuppose extensive empirical investigations, each and every country requiring in that regard a separate study. However, it is possible to identify some general lines that seem to be corroborated by the experiences during the first two cycles of that process.
34 First of all, it should be acknowledged that the States participating actively in the UPR review do not misuse their right of review for political games. To be able to review critically another State provides a great opportunity to speak out frankly about deep-seated problems that have never been addressed openly. Yet, at the same time, every State knows that its observations will be meticulously scrutinized by the addressee and that too high a degree of frankness is susceptible to severely straining political relations. Every statement will therefore be checked carefully before being released. Small States cannot permit themselves to lose the sympathy of a powerful neighbour. Such strategic calibrating unavoidably affects the exchange of views. Studies have shown that African States have a tendency to maintain among themselves a high degree of non-critical solidarity (see Abebe, 2009, 19–20; Bulto, 2014, 235–55; Etone, 2018, 205–6; Smith, 2014, 346–65).
35 On the positive side, one may note that the lists of conclusions and recommendations show almost invariably a fairly good knowledge of the true problems a country is confronted with, the intervening delegations invariably with great care canvassing the stock of information condensed in the three introductory documents for the UPR. Common themes are usually equality between men and women, the death penalty, police arbitrariness including torture, repression of political freedoms and the education system, the national health system, and discrimination against ethnic and religious minorities. NGOs play an important role in providing useful information. Sometimes, however, they misguide States to use their standard program of questioning in respect of countries that have never been besieged by such problems (see Baird, 2014, 208). Tuvalu, a Pacific Island State with less than 11,000 inhabitants and mainly affected by the rising sea level, was inundated by recommendations to ratify almost all the multilateral human rights agreements of the UN.
36 Experience has shown that the UPR process is not the appropriate forum for securing a fundamental change in the policies of great powers. When China was subjected to the review process, many States saw this as an opportunity to impel the Government to change course regarding civil and political rights. Again and again with the best intentions, the recommendation was made that the country ratify the ICCPR (4 December 2013) paras 186.1–86.15). Such recommendations are absolutely futile. The leading role of the communist party constitutes the centrepiece of the philosophy of the socialist State. China would have to undergo a radical transformation, even a revolution, before consenting to the principle of political pluralism, abandoning the practice of discrimination against any diverging political opinions (China’s responses: Report of the Working Group—China (4 December 2013) paras 186.1–86.15; Report of the HRC (17 July 2014) para 808)). The States that hope to bring China onto the path of perfect compliance with the principle of equality know perfectly well that they are engaging in a rhetorical exercise that cannot succeed. Many other examples may be added to the findings on China. The US received no less than 72 recommendations to ratify the multilateral UN conventions to which it is not yet a party (Report of the Working Group—United States (20 July 2015) paras 177.1–76.72). It is this kind of hollow rhetoric that brings UPR into disrepute. For a State unsure of its position vis-à-vis the US, suggesting ratification of a UN convention is obviously a facile suggestion. It finds itself on safe ground since it knows that its relations with the US will not be harmed. A UN convention should normally not be a bad political choice. Additionally, recommending the ratification of a treaty requires little work. Any recommendations regarding abusive internal practices need to be supported by solid evidence, the collection of which may be fairly time-consuming. Thus, in view of such practices of avoidance, some authors have characterized the UPR process as a ritual having lost its raison d’être (Charlesworth and Larking, 2014, Introduction; Kälin, 2014, 25–41)
37 It is true, indeed, that UPR is not the appropriate battlefield for settling major political conflicts. The Russian Federation has deliberately abstained from raising structural issues with military connotations in addressing the US, confining itself to focusing on actual problems on the ground that have also been raised by other intervenors (Report of the Working Group—United States (20 July 2015) para 176.9 ‘withdrawal of all reservations from human rights treaties’; para 176.146 ‘stop racial profiling’; para 176.206 ‘stop killing by drones’). The US, on the other hand, has acted somewhat more vigorously vis-à-vis the Russian Federation but without leaving the substantive scope of the UPR process by requesting the abolition of the mechanisms that constrain and repress political freedoms (Report of the Working Group—Russian Federation (12 June 2018) paras 32, 147.67). Mainly the States directly affected or feeling threatened have put forward demands regarding Crimea and the occupied territories of Georgia (at paras 148.2–48.7). Only Australia made up its mind to question openly the Russian annexations in its border regions (at para 148.8).
38 UPR seems to be most successful in respect of patterns of human rights violations that are rooted in archaic practices of male predominance for the justification of which no rational arguments can be found. No government any longer opposes stubborn resistance against demands that structural discrimination against women be abolished. However, in many instances the limits of governmental agency are reached. FGM is the most prominent example of a practice that deeply hurts the dignity of young girls and women and may cause irreparable damage to their health. Here, the enlightened intentions of a government may clash with deeply ingrained superstitious prejudices. Thus, Djibouti accepted all of the recommendations to do away with FGM but no concrete steps were indicated (Report of the Working Group—Djibouti (Addendum) (28 August 2018) paras 6–7). Societies cannot be held to account as they would deserve it.
39 It would be wrong, therefore, to dismiss reiterated demands for reform as being unreasonable. Many practices are so scandalous in terms of departures from the standards established under the normative regime applicable to UPR that the emphasis with which specific inconsistencies are highlighted by different intervenors underlines the urgency of remedial measures. Thus, in the case of Syria the devastating effect of non-respect for the applicable rules of humanitarian law was raised by no less than 26 speakers from four regions of the world, which amply showed that prejudice was absent from the minds of those speakers (Report of the Working Group—Syria (27 December 2016)). Following up on these observations, 23 recommendations were made to respect international humanitarian law by ceasing to attack the civilian population or medical units (at paras 109.95–109.117, by countries from all continents, with the exception of Asia). In its written comments after the interactive dialogue, the Syrian Government attempted to talk away the breaches of humanitarian law as constituting a consequence of the ‘fight against terrorism’. A vague promise was made in general terms:
Within the context of its efforts to combat terrorism, the Syrian government reiterates its full commitment to international law, particularly as regards the protection and security of civilians and the integrity of public utilities such as hospitals and schools (Report of the Working Group—Syria (Addendum) (13 March 2017)).
40 It also makes good sense constantly to recommend to States that they should open their borders to inquiries on the ground by UN experts, preferably extending an open invitation to a special rapporteur or other mechanism under the UN special procedures. It stands to reason that discussions in the conference rooms of the HRC in Geneva can never come as close to the true facts as an inspection unit that travels to the actual place where the alleged violations took place. There is a group of States that is consistently reminded that such openness and transparency should be guaranteed, generally with little success (see, eg, Iran, negative response to recommendations for the admission of UN special procedures, Report of the Working Group—Islamic Republic of Iran (2 March 2015) para 4).
41 Institutionally, the responses of the government concerned to the recommendations made to it close the proceedings. No counter-response is provided for. Should the information given prove unsatisfactory, the controversial issues can be raised again only after a waiting period of four years.
42 Sometimes States deny realities evidenced by incontrovertible proofs, opposing stubborn resistance against helpful comments. Myanmar is one of the countries that does not conduct an open dialogue with its peers. Thus, during the interactive dialogue it stated that ‘there was no minority coming under the name of ‘Rohingya’ (Report of the Working Group—Myanmar (23 December 2015) para 133). In its written comments, it contended that the country was not aware of any arrest or detentions on political grounds (at para 133). Such conduct should give rise to serious criticism but it cannot be overlooked that some countries refrained from any criticism, praising the Government even for its achievements in the field of social policies. It is noteworthy that Bangladesh as the State most directly affected by the atrocities committed against the Rohingya did not actively participate in the debate. A wise comment from China should be noted. The delegation said that Myanmar should continue ‘efforts to preserve national, cultural and religious diversity so as to promote harmony among ethnic groups and religions’ (Report of the Working Group—Myanmar (23 December 2015) para 133).
E. Final Conclusions
43 It is undeniable that not all of the hopes attached to the UPR review have been achieved. On the one hand, the high degree of politicisation of the monitoring process within the framework of the Commission on Human Rights has not decreased significantly. From the very outset, it was illusory to believe that debates on human rights could be sterilized by depriving them of any political elements. Human rights determine the existence of human beings not only in their private existence, but also within society. In that regard, different opinions constitute an essential ingredient of any free society. Although common ground has been firmly established in particular by the UDHR and the two International Covenants of 1966, the understanding of this normative framework does change in the course of time, and its application in practice is never a purely mechanical exercise. Hence, controversies are inherent in the system and must not be seen as anomalous disturbances. A free society needs a wide framework for dissent. UPR should not be a battlefield but it cannot be a dusty desert without voices.
44 A second issue carries more weight. UPR has been officially designed as a dialogue. Yet as expounded above, it frequently resembles more a juxtaposition of two monologues. The State concerned starts by presenting its position, it then listens to the arguments of the participants in the review process and concludes the exchange of views by reaffirming its standpoint. No time is reserved for a genuine exchange of views where the arguments are carefully scrutinized one by one by the parties involved in a collective effort. Viewed from the outside, this first impression is true. But it ignores the fact that the efforts undertaken do not remain without any effect. It is precisely the ultimate national document (Addendum 1 to the Report of the Working Group) synthesizing the comments made that shows that those comments have not fallen on deaf ears—if the State concerned seriously deals with all the concerns that have been raised. As already pointed out, dramatic changes cannot be expected. Yet the presence of the entire diplomatic community as a channel to the world at large is likely to engender a climate of collective responsibility where States become aware of their interrelatedness with all the other States of the globe—provided they have an enlightened governing elite.
45 UPR lives on the contributions made by the States of the international community, the peers of the SuR. Politically, it matters greatly that in the UPR process developing countries have gained a much stronger position in the conventions-based universal system for the protection of human rights. To date, interest in participating in UPR is still strong, which is no guarantee that it will continue to remain as lively as it currently is. At the last UPR session in May 2018, the number of speakers was considerable: Canada 107; Colombia 86; Djibouti 91.
46 UPR will survive, in symbiotic coexistence with the review mechanism under the authority of the treaty bodies (see Collister, 2017; Smith, 2011, 586), as long as it is viewed by its observers as a meaningful process. From mainly being objects of criticism, developing countries have become, in institutional terms, defenders and promoters of human rights (Abebe, 2009, 3).
47 The international community must be aware of the fact that the promotion and protection of human rights is a continuous never-ending process. It would be an illusion to believe that a conscience-awakening process of three and a half hours can by one stroke settle all the serious human rights problems of a given country. The importance of the UPR review process lies in its availability as a mechanism for the continuous monitoring of human rights developments in all countries of the globe.
A Chayes and A Handler Chayes, The New Sovereignty: Compliance and International Regulatory Agreements (Havard University Press Cambridge MA 1995).
PG Lauren, ‘“To Preserve and Build on Its Achievements and to Redress its Shortcomings”: The Journey from the Commission on Human Rights to the Human Rights Council’ (2007) 29 Human Rights Quarterly 307–45.
AM Abebe, ‘Of Shaming and Bargaining: African States and the UPR of the United Nations Human Rights Council’ (2009) 9 Human Rights Law Review 1–35.
R Smith, ‘More of the Same or Something Different? Preliminary Observations on the Contribution of the UPR with Reference to the Chinese Experience’ (2011) 10 Chinese Journal of International Law 565–86.
C Tomuschat, ‘UPR: a New System of International Law with Specific Ground Rules?’ in U Fastenrath et al (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (OUP Oxford 2011) 609–28.
N Baird, ‘The UPR: building a Bridge between the Pacific and Geneva?’ in H Charlesworth and E Larking (eds), Human Rights and the UPR: Rituals and Ritualism (CUP Cambridge 2014) 187–212.
TS Bulto, ‘Africa’s engagement with the UPR – commitment or capitulation? in H Charlesworth and E Larking (eds), Human Rights and the UPR: Rituals and Ritualism (CUP Cambridge 2014) 235–55.
H Charlesworth and E Larking (eds), Human Rights and the UPR: Rituals and Ritualism (CUP Cambridge 2014).
H Charlesworth and E Larking, ‘Introduction’ in H Charlesworth and E Larking (eds), Human Rights and the UPR: Rituals and Ritualism (CUP Cambridge 2014) 1–22.
R Chauville, ‘The UPR’s first cycle: successes and failures’ in H Charlesworth and E Larking (eds), Human Rights and the UPR: Rituals and Ritualism (CUP Cambridge 2014) 87–108.
H Collister ‘Rituals and Implementation in the UPR and the human rights treaty bodies’ in H Charlesworth and E Larking (eds), Human Rights and the UPR: Rituals and Ritualism (CUP Cambridge 2014) 109–25.
W Kälin, ‘Ritual and ritualism at the UPR: a preliminary appraisal’ in H Charlesworth and E Larking (eds), Human Rights and the UPR: Rituals and Ritualism (CUP Cambridge 2014) 25–41.
B Schokman and P Lynch, ‘Effective NGO Engagement with the UPR’ in H Charlesworth and E Larking (eds), Human Rights and the UPR: Rituals and Ritualism (CUP Cambridge 2014) 126–46.
R Smith, ‘A Review of African States in the First Cycle of the UN Human Rights Council’s UPR’ (2014) 14 African Human Rights Law Journal 346–65.
JK Cowan and J Billaud, ‘The “Public” Character of the UPR: Contested Concept and Methodological Challenge’ in R Niezen and M Sapignoli (eds), Palaces of Hope: the Anthropology of Global Organizations (CUP Cambridge 2017) 106–26.
R Niezen and M Sapignoli (eds), Palaces of Hope: the Anthropology of Global Organizations (CUP Cambridge 2017).
D Etone, ‘African States: Themes Emerging from the Human Rights Council’s UPR’ (2018) 62 Journal of African Law 201–23.
B Arp, ‘Lessons Learned from Spain’s Practice before the United Nations Human Rights Reporting Mechanisms: Treaty Bodies and UPR’ (2009) 15 Spanish Yearbook of International Law 1–37.
E McMahon, ‘International Organizations and Peer Review: Assessing the UPR Mechanism of the United Nations Human Rights Council’ (2009) 17 African Yearbook of International Law 355–77.
J Duggan-Larkin, ‘Can an Intergovernmental Mechanism Increase the Protection of Human Rights? The Potential of UPR in relation to the Realisation of Economic, Social and Cultural Rights’ (2010) 28 Netherlands Quarterly of Human Rights 548–81.
E McMahon and M Ascherio, ‘A Step Ahead in Promoting Human Rights? The UPR of the UN Human Rights Council’ (2012) 18 Global Governance 231–48.
R Smith, ‘The Pacific Island States: Themes Emerging from the United Nations Human Rights Council’s Inaugural UPR’ (2012) 13 Melbourne Journal of International Law 569–94.
Higgins, ‘Advancing the Rights of Minorities and Indigenous Peoples: Getting UN Attention Via the UPR’ (2014) 32 Netherlands Quarterly of Human Rights 379–407.
M Roesdahl, ‘UPR and its Limited Change Potential: Tracking the Complexity of Multiple Actors and Approaches to Human Rights Change through the Lens of the UPR Process of Nepal’ (2017) 9 Journal of Human Rights Practice 401–23.