Is The Mechanism of Universal Periodic review overrated? a critical analysis of the functioning of universal periodic review in the context of addressing human rights issues.

Introduction:

The Human Rights Council is more active when compared with the United Nations Human Rights Commission. This is because, unlike the Commission, the Council is established as a subsidiary organ of the General Assembly and is required to meet for 10 weeks per year over at least 3 sessions with the option of holding special sessions at the request of one third of its membership.[1] The most important of all these is the establishment of Universal Periodic  Review (UPR) for establishing and conducting peer reviews in regard to human rights obligations. It is of no doubt that the expectation of in depth review of obligations in regard to human rights by all states that made most of the nations welcome the establishment of the system of universal periodic review. The Universal Periodic Review is a powerful mechanism that monitors the human rights conditions in each state and helps in improving them. This is done through discussions regarding human rights compliance by different states on the basis of the state report, report of OCHR on the basis of information from treaty bodies, special procedures and other stakeholders. This paper will address the working of the Universal Periodic Mechanism and its effectiveness in addressing human rights issues in states. In addition, this paper will also look upon the fact as to whether the Universal Periodic Review has been overrated and if the answer is in the affirmative, the reasons for the same. Much emphasis will be placed on not only on addressing specific issues of human rights of each state through this mechanism but also on the changes brought out by the new mechanism in comparison with earlier United Nations Human Rights Commission and its effectiveness.

Working of Universal Periodic Review:

The mechanism of Universal Periodic Review is stated to be a major departure from the mechanism of the commission. Universal Periodic Review is also considered as a significant victory of developing nations who were against the commission’s approach of highlighting gross violations being committed only by a handful of nations.[2] The Universal Periodic Review mechanism was established as an answer to the criticisms against the earlier Human Rights Commission in regard to selectivity and politicization in its consideration of country situations and also to ensure that human rights situations of all the countries are addressed periodically.[3] The separate information sought from the national human rights institutions is considered as an innovative step in the Universal Periodic Review mechanism.[4] The main function of the Universal Periodic Review is not to focus on gross violations of human rights but to make an assessment of the improvements as well as the drawbacks of states in regard to human rights obligations based on widely accepted and fairly precise standards.[5] As per Resolution 5/1, the sources for Universal Periodic Review includes, , national report prepared by the state, report consisting of information from treaty bodies and special procedures of OHCHR and a report prepared by OCHR based on information provided by other stakeholders including non-governmental organisations and national human rights institutions.[6] As is clear from the Resolution 60/251 of the General Assembly, the review under Universal Periodic Review shall be a cooperative mechanism based on interactive dialogue[7] and according to Resolution 5/1 the review should be conducted in an ‘objective, transparent, non-selective, constructive, non-confrontational and non-politicized manner.”[8] So far as the African states are concerned, they do not wish to authorize the Council with the power to take specific actions to deal with the problem of non-compliance and in turn they look for an oversight method in the review system which is less critical.[9] In short, the working mechanism of Universal Periodic Review consists of documentation followed by interactive dialogue and an adoption of a final outcome by the Human Rights Council which may include certain recommendations[10] and is considered as a means of reestablishing credibility, universality, professionalism and in addition, fair scrutiny of state performance in regard to the protection of human rights.[11]

Effectiveness of Universal Periodic Review:

After the review hearings, the Human Rights Council can, in addition to the recommendations, propose capacity building measures in order to implement human rights obligations. Though it is true that the system of Universal periodic review resolves the drawbacks of the earlier commission in relation to double standards, selectivity and shaming, it is quite often stated that the influence of political considerations during the institution building process has given way to least professional and expert contribution. It has also been stated that Universal Periodic Review continues to be a “largely unknown process outside of the UN human rights environment.”[12] On the contrary, it is also stated that it was the politically selective nature of the Commission which was the reason why it got replaced by the Council and as the Universal Periodic Review apply to all of the United Nations member states it cannot be said that the council is applying double standards. In short, it means that if selectivity was the nature of the work of the commission, it is universality which is the nature of the mechanism of the council and Universal Periodic Review.[13]

The main benefit of the mechanism of universal periodic review is that it ensures that all the countries are subject to a minimum level of Council attention on a regular basis.[14] However, it is pertinent to observe that there exist some differences between Universal Periodic Review and treaty based human rights monitoring mechanisms. In the case of treaty based human rights monitoring mechanism the members are individual experts who examine and inspect the achievement of the obligations as envisaged by the treaty. But in the case of Universal Periodic Review individual human rights experts are excluded from directly participating in the review procedures and it is principally an inter-governmental oversight mechanism. In the context of Universal Periodic Review, it is most often stated that “in the Universal Periodic Review, states are in the driving seat, being the primary suppliers of information, reviewers and consolidators of the report itself.”[15] This is precisely the reason why it is stated to be an overwhelmingly political undertaking.[16]

Though Universal Periodic Review is slightly controversial in regard to the fact that it addresses both international human rights law as well as international humanitarian law, it is the only compulsory mechanism to review human rights compliance by states. But the mechanism of Universal Periodic Review does not in itself assure a full and comprehensive assessment of the human rights situation in a state and it is clear from scrutinizing the reviews.[17] The members of the troika depending on their Geneva diplomats which will in turn reflect badly on its efficacy and professionalism, the struggle to make safe adequate financial commitment even despite the establishment of Voluntary Trust Fund, limitation of funding to just one individual from a Member State of the Council which do not have permanent mission in Geneva are all pointed out as the shortcomings of the Universal Periodic Review system.[18] One another factor which should be taken into account is that though the universal periodic review mechanism allows for a systematic and periodic scrutiny of all the UN member states and endeavors at reinforcing the existing monitoring system by creating a new direction, the Universal Periodic Review mechanism is not a novel idea as a similar procedure was established in 1956 and abandoned in 1980. In addition it seems to be duplicating the reporting procedures of the treaty bodies.[19] Though the involvement of NGOs and other stakeholders in the Universal Periodic Review makes it more effective and is something which is commendable, institution-building text contains no stipulation empowering them to make statements as well as to raise queries throughout the interactive dialogue in the Working Group. Moreover, the term ‘stakeholders’ is not defined either in GA Resolution 60/251 or Council Resolution 5/1 which is another major drawback of the mechanism.

Universal Periodic Review: Overrated or Not?

One of the main reasons to say that the Universal Periodic Review is overrated is the problem of regional alliance which is a major cause of criticism of its review process. The joint NGO statement made on 13th June 2008 clearly highlights the problem of the mechanism of Universal Periodic Review as it reveals that though a cooperative approach between the states themselves is valuable, the practice of certain states joining sides merely to ‘praise their allies’ goes opposite to the Universal Periodic Review principles of objectivity, transparency, non-selectivity, constructively, non-confrontational and non-politicization.[20] Nevertheless it is true that the political character of the Human Rights Council is indispensable for its functioning as it is a multilateral body constituted by representatives of States that keep on guarding their interests.

The problem of regional block voting where the states organize themselves to carry out the actions in groups is a major setback to the working of the Council. This was the major issue that haunted the working of the earlier Commission. The states belonging to the same regional groupings often praise one another in regard to the human rights situations and never issue statements that are against a state within the group. It is clear from the reviews of Tunisia and Morocco that the states belong to the same regional groupings never issue statements that tend to show or question the human rights violations in the concerned state. During the review of Tunisia, out of 65 statements in total, 50 statements were favorable ones and were made by African and Muslim nations. During the review of Morocco more than half of the 50 statements that were made were in favour of the nation. It was also clear from the first and second sessions of Universal Periodic Review that the smaller nations were engaged in interactive dialogues only with the states from their region. It also revealed that there existed the practice of answering in clusters which failed to address majority of the issues.[21]

The practice of positive comments actually outweighing critical interventions which was evident in the initial two sessions of Universal Periodic Review and less attention being given to certain issues such as sexual orientation and gender identity due to lobbying by NGOs and the chances for rejecting certain recommendations on the basis that they do not contain universally recognized human rights principles are some of the major issues that the Universal Periodic Review has to take care of.[22] If adequate steps are not taken to resolve the said issues one may feel that the working of the earlier Commission on Human rights and the mechanism of Universal Periodic Review is quite similar as the only difference between the two otherwise is with regard to the procedural setup for the actual review as unlike the Universal Periodic Review, the commission did not have the system of organized discussions between the reporting state and the commission.[23]

The compilations of information as part of the Universal Periodic Review mechanism too are not free from trouble as some of them are not relating to the issues of human rights and are without the benefit of analysis and context. For example, the compilation of the review of Canada aptly takes care of the fact that domestic violence is not considered as a criminal offence in Canada which was stated by two treaty monitoring bodies but does not talk about of the prevalent provisions under Canadian law that addresses domestic violence.[24] The need for an independent fact finding mechanism on specific topics in the Universal Periodic Review process is emphasized due to the problem of information availability and due to the fact that the treaty body members may not ask questions of topics which they are unaware of and may only reproduce the information that are already provided in the state report or the information from other UN bodies or documentation submitted by the NGOs.[25] Moreover, with regard to the review of Canada, the compilation duly refers to the fact addressed by one treaty monitoring body that there are no effective measures in Canadian law to provide civil compensation to victims of torture but the compilation failed to point out that it was relating to a matter of compensation claimed by an Iranian national for torture that was committed in Iran at the hands of Iranian officials which was rejected by the Canadian court on the basis of the doctrine of foreign state immunity.[26]

Moreover, the fact that the Universal Periodic Review is an inter-governmental process and is being put into operation in a situation where regional groups for example the European Union (EU), the African Group, the Organization of Islamic States as well as the Non-Aligned Movement exercise massive control is also stated as a challenge to the whole review process on quite a lot of issues such as the human rights situations in Palestine, freedom of expression as well as racism, the African Group agreed to the stands taken by the Arab League as well as the Organization of Islamic Conference as many affiliates of the African Group are members of the Arab League and the Organization of Islamic Conference Group.[27] Though not specifically with regard to Universal Periodic Review, but in general so far as the Human Rights Council is concerned, the regional alliance poses a great problem. The African Group as well as certain African States supporting the Sudanese government and the OIC discussing unrelated issues on Darfur has caused a great hindrance in the ability of the council to take necessary steps.[28] It is stated that the vast amount of time devoted to Darfur for discussions makes it clear that the Council was aware of the importance of the issue but the actions of the African Group, OIC, and states like Cuba and China supporting Sudan’s outright denial of its part in the violence in Darfur weakens the recommendations to go unimplemented.[29]

As the system of Universal Periodic Review encompasses peer evaluation by the states apart from periodic review it may result in undesirable politicization.[30] The growing gap between the developed and developing countries is more prominent in the case of the Human Rights Council than in the case of the UN Commission on Human Rights.[31] The ‘disproportionate attack’ on Israel and the cross-regional working relationship created by the EU countries contribute to the weaknesses of the system as a whole.

The complexity in measuring implementation of human rights obligations by States, the availability of little or no information from the member nations during review, the problems with the quality and definitiveness of the information given by the member nations, the chances of politicization when it comes to selecting rapporteurs and the lack of concrete follow-up mechanisms are some of the other existing challenges so far as the universal periodic review is concerned.[32] The working of the Council as such is not challenged here but when it comes to certain aspects it is doubtful as to whether the establishment of the Council by replacing the former Commission did succeed in achieving all that was anticipated to achieve and it is also doubtful as to whether the establishment of the Council eliminated all the shortcomings and drawbacks of the former Commission. It is of no doubt that the holding of Special Sessions reinforces dialogue and cooperation on human rights issues but most of the times the results of these Special Sessions are very insufficient. This is clear from the fact that though there was a consensus in adopting the resolution during the fifth Special Session on Myanmar, the government of Myanmar did no more than merely inviting the special Rapporteur to make a country visit. It should be noted that the government of Myanmar did not implement any of the recommendations of the Human Rights Council.[33] Though most of the states in the first two sessions emphasized the participation of NGOs so far as their country’s reports are concerned, none of the reports contain the detailed list of the names of the NGOs that participated and other connected details. The role of NGOs is very vital as they can bring up truth of human rights violations in places and can put in their own proficiency in addition to the fact that they can maintain an assessment on the steps taken by the member nations.[34] At the same time the reliance placed on the information given by NGOs by OHCHR without verifying the authenticity and the fact that most of the NGOs are either non-registered or the ones not having consultative status with the UN’s Economic and Social Council are also the shortcomings of the mechanism of Universal Periodic Review.[35]

It is not sure as to whether the measures employed by the council will be effective as it is quite unsure as to whether the state will follow or cooperate with the universal periodic review mechanism due to the apprehension of those measures. The only fact which could be obtained from the text of the Resolution 5/1 on Institution Building[36] is that the council will address cases of persistent non cooperation with the council’s mechanism after all efforts to encourage a state to cooperate with the universal periodic review mechanism. It has been stated that the by inventing the new system of universal periodic review “the international community is sacrificing an international inspection mechanism that was already being used by Commission on Human Rights, by albeit imperfect system of thematic rapporteurs and country rapporteurs”.[37] This statement is not devoid of any merit because the mechanism of Universal Periodic Review does not make out the real degree of implementation of international human rights obligations by the member nations and it does not stipulate the manner in which the nations could measure the accomplishment of their human rights obligations.

Conclusion:

Though the mechanism of Universal periodic Review is seen as one which is transparent and impartial when compared to the earlier commission which had the tag of being political in its approach, the actual effectiveness of Universal Periodic Review depends on the level of political pressure that one state can impose on another so that the state will take their human rights obligations seriously. In certain matters honest questioning by other states is seldom seen and if they continue to praise their allies rather than challenging the human rights abuses in the concerned states, Universal Periodic Review will be of no use in protecting human rights. If Universal Periodic Review is not freed from the general problems of political solidarity and cross regional voting by the states it will cast a bad remark on the effectiveness of Council and the Council will have to give way to a new system like it had happened in the past in the case of the Commission. At present, the Universal Periodic Review is serving as a pretense for accountability by creating an impression that the member nations are following steps to guarantee the human rights obligations but if the Universal Periodic Review mechanism needs to be effective in reality, there should be independent assessment of the human rights performance of the member states. The time factor, i.e. the short span of time taken for the review of states in the Universal Periodic Review and less participation of experts often creates issues as to its credibility in its working and protection of human rights.  Moreover, waiting for another cycle to follow up issues and the methodology which will be adopted when a nation is persistently not complying with the recommendations are some of the major areas which needs clarification. If certain amount of certainty is provided to these issues then Universal Periodic Review will be deemed much more effective than it is currently seen to be. Though it is very clear from the Resolution 60/251 that the mechanism of Universal Periodic Review is established so as to compliment the work of the treaty bodies and not to duplicate the review process, there have been doubts raised by many with regard to the fact that the working of the Universal Periodic Review seems, at certain areas, to be duplicating the work of the treaty bodies and is not doing much effectively when analyzed from the point of view of the  basic purpose for which the same has been established. Most of the UN mechanisms that exist do not effectively manage to correct the abuses of human rights that occur in a country and if the Universal Periodic Review process is also working in the same path, it is unfortunate to note that it would do no good than merely reviewing and criticizing the human rights conditions in the member states.



[1] Kevin Boyle, The United Nations Human Rights Council: Politics, Power and Human Rights, 60 (2) Northern Ireland Legal Quarterly 121-133 (2009).

[2] Henry J. Steiner, Philip Alston, Ryan Goodman, International Human Rights in Context : Law, Politics and Morals 806 (2008)

[3] Peter Splinter & Patrizia Scannella, The United Nations Human Rights Council: a promise to be fulfilled, H.R.L. Rev. 41 (2007)

[4] Richard Carver, A new answer to an old question: national human rights institutions and the domestication of international law, H.R.L. Rev. 1 (2010)

[5] Nadia Bernaz, Reforming the UN Human Rights Protection Procedures: A Legal Perspective on the Establishment of the Universal Periodic Review Mechanism in Kevin Boyle (ed), New Institutions for Human Rights Protection 83 (2009)

[6] ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_5_1.doc (last visited 19th October 2013)

[7] www2.ohchr.org/english/bodies/hrcouncil/docs/a.res.60.251_en.pdf (last visited 23rd October 2013)

[8] Supra note [6]

[9] Allehone Mulugeta Abebe, Of Shaming and Bargaining: African states and the Universal Periodic Review of the United Nations Human Rights Council, H.R.L. Rev. 1 (2009)

[10] Joanna Harrington, Canada, the United Nations Human Rights Council, and Universal Periodic Review, 18 Const. F. 79 (2009)

[11] Felice D. Gaer, A Voice Not an Echo: Universal Periodic Review and The UN Treaty Body System, H.R.L. Rev. 109 (2007)

[12] Supra note [9]

[13] Supra note [5]

[14] Hurst Hannum, Reforming the special procedures and mechanisms of the Commission on Human Rights, H.R.L. Rev. 73 (2007)

[15] Supra note [9]

[16] Id. at 8

[17] Rhona K.M. Smitha, Texts and Materials on International Human Rights 189 (2010)

[18] Allehone Mulugeta Abebe, Of Shaming and Bargaining: African states and the Universal Periodic Review of the United Nations Human Rights Council, H.R.L. Rev. 1 (2009)

[19] Supra note [5]

[20] ‘Joint statement on behalf of the Asian Legal Resource Centre, Ba’hai International Community, the Cairo Institute for Human Rights Studies, the Centre for Housing Rights and Evictions (COHRE), Conectas (Brazil), Asian Forum for Human Rights and Development (FORUM-ASIA), Franciscans International, Human Rights Watch, the International Service for Human Rights (ISHR), Pax Romana, and Rights and Democracy’, NGO Statement on Item 6 – Friday, 13 June 2008, Human Rights Council – 8th session http://olddoc.ishr.ch/lca/statements_council/otherngos/upr_statement_final_13_june_2008.pdf (last visited 26th October 2013)

[21] Gareth Sweeney & Yuri Saito, An NGO assessment of the new mechanisms of the UN Human Rights Council, H.R.L. Rev. 203 (2009)

[22] Id. at 213

[23] Supra note [5]

[24] Supra note [10]

[25] Supra note [11]

[26] Supra note [10]

[27] Supra note [18]

[28] Rosa Freedman, Improvement on the Commission? The UN Human Rights Council’s Inaction On Darfur, 16 U. C. Davis J. Int’l L. & Pol’y 81 (2009)

[29] Id. at 128

[30] Katherine Short, From Commission To Council: Has the United Nations Succeeded In Creating A Credible Human Rights Body?, 9 SUR – Int’l J. on Hum Rts. 147 (2008)

[31] Paulo Sergio Pinheiro, Sixty Years After the Universal Declaration: Navigating The Contradictions, 9 SUR – Int’l J. on Hum Rts. 71 (2008)

[32] Lucia Nader, The Role OF NGOs in the Un Human Rights Council. 7 SUR – Int’l J. on Hum Rts. 7 (2007)

[33] Supra note [31]

[34] Supra note [32]

[35] Supra note [10]

[36] Supra note [6]

[37] Carlos Villan Duran, Lights And Shadows Of The New United Nations Human Rights Council, 5 SUR – Int’l J. on Hum Rts. 7 (2006)

By:-Sandeep Menon Nandakumar

Lecturer, School of Legal Studies CUSAT

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