Star Law Analysis
Universal Periodic Review
New HR enforcement mechanism
Sayeed Ahmad
The Universal Periodic Review (UPR) is a new mechanism that has been established under UN General Assembly Resolution 60/2251, which created the Human Rights Council. The Resolution provides that the Council shall “undertake a universal periodic review, based on objective and reliable information, of the fulfilment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States”. The General Assembly did not set out the details of how the process will be carried, instead asked the Council to develop the modalities and necessary time allocation for the universal periodic review mechanism within one year of its first session. The Council had its first session on 19 June 2006. Finally, the one-year long institution-building process ended with the adoption of a consensus document prepared by the Council President on 20 June 2007.In his document, the president of the council has outlined the basis of the review, the principles and objectives of mechanism, periodicity and order of the review and the process and modalities of the review. Let us summarise the document here.
Basis of the review
The Charter of the United Nations; the Universal Declaration of Human Rights (UDHR); human rights instruments to which the State is party have been proposed for the basis of the review. If the state presents its candidatures for election to the Human Rights Council, the voluntary pledges and commitments made by them will also be considered as the basis of review. Furthermore, the review shall also take into account applicable international humanitarian law.
Principles of the mechanism
The document proposed the following principles of the mechanism-
* Promote universality, interdependence, indivisibility and interrelatedness of all human rights;
* Be a cooperative mechanism based on objective and reliable information and on interactive dialogue;
* Ensure universal coverage and equal treatment of all States;
* Be an intergovernmental process, United Nations Member-driven and action-oriented;
* Fully involve the country under review;
* Complement and not duplicate other human rights mechanisms, thus representing an added value;
* Be conducted in an objective, transparent, non-selective, constructive, non-confrontational and non-politicised manner;
* Not be overly burdensome to the concerned State or to the agenda of the Council;
* Not be overly long. It should be realistic and not absorb a disproportionate amount of time, human and financial resources;
* Not diminish the Council's capacity to respond to urgent human rights situations;
* Ensure that a gender perspective is fully integrated in the UPR;
* UPR should, without prejudice to the obligations contained in the elements provided for in the basis of review, take into account the level of development and specificities of countries;
* Ensure participation of all relevant stakeholders, including non-governmental organisations (NGOs) and national human rights institutions (NHRIs).
Objectives of the mechanism
The former Commission on Human Rights had been heavily criticised for selectivity and double standards in responding to the situation of human rights within countries. This mechanism has been created mainly in response to that criticism. Under UPR, all countries will be subject to a review. Thus, the objectives of the mechanism are to improve the human rights situation on the ground, to fulfil the State's human rights obligations and commitments, to enhance the State's capacity and technical assistance, to share the best practices among States and other stakeholders and to provide support for cooperation in the promotion and protection of human rights.
Periodicity and order of the review
The order of the review has not yet been furnished completely. The document proposed some general guidelines for that. Likewise, all member States of the Council shall be reviewed during their term of membership. The initial members of the Council, especially those elected for one or two-year term should be reviewed first. A mix of member and observer States of the Council should be reviewed. Equitable geographic distribution should be respected in the selection of countries for review. The first member and observer States to be reviewed will be chosen, from each regional group in such a way as to ensure full respect for equitable geographic distribution, by drawing of lots. Alphabetical order will then be applied beginning with these countries, with the exception of those who volunteer to be reviewed. The period between review cycles should be reasonable so as to take into account the capacity of States to prepare and the capacity of other stakeholders to respond to the requests arising from the review.
The periodicity of the review for the first cycle will be of four years. This will imply the consideration of 48 States per year during three sessions of the working group of two weeks each. It is to be noted that, in the adopted document it has been mentioned that as the UPR is an evolving process, the Council after the conclusion of the first review cycle, may review the modalities and the periodicity of this mechanism based on best practices and lessons learned.
Documents to be considered in the review process
The review would be based on the information prepared by the State concerned. States shall prepare the information based on General Guidelines to be adopted by the Council at its next session (sixth session), which will be held in September 2007. To guarantee equal treatment to all States and not to overburden the mechanism, the length of the written presentation summarising the information has been limited up to 20 pages. States are encouraged to prepare this presentation through a broad consultation process at the national level with all relevant stakeholders.
A summary of the information contained in the reports of treaty bodies, special procedures, including observations and comments by the State concerned and other relevant official United Nations documents, prepared by the Office of the United Nations High Commissioner for Human Rights (OHCHR) will also be considered. This shall not exceed 10 pages.
In the review, the Council could also take into consideration additional credible and reliable information provided by other relevant stakeholders, such as national human rights institutions or NGOs. OHCHR will prepare a summary of such information that shall not exceed 10 pages.
Modalities of the review
The review will be conducted in one Working Group, chaired by the President of the Council and composed of the all members (47) of the Council. A group of three rapporteurs, selected by the members of the Council and from different Regional Groups will be formed to facilitate each review. The country concerned may request to select one of the rapporteurs from its own Regional Group. They may also request to substitute a rapporteur on only one occasion.
The duration of the review will be three hours for each country in the Working Group. Additional time of up to one hour will be allocated for the consideration of the outcome by the Council plenary. The final outcome will be adopted by the plenary of the Council. Observer states can participate in the review, including in the interactive dialogue. Other relevant stakeholders (NHRIs and NGOs) can attend the review process only in the Working Group.
Conclusion
So far, the UPR is being considered as a welcome new innovative form to address all country-specific human rights situations. In the consensus document, there are several provisions, which allow the NGOs to participate in the review process at all stages -- preparatory, review and implementation. However, there is no scope of direct participation for the NGOs in an interactive dialogue during the Working Group. This creates the doubt over the effectiveness and efficiency of the mechanism. In fact, the main reason behind establishing this new mechanism is to get rid of the criticism that the former Commission faced for its selectivity and double standards.
In this regard, it might be appropriate to reiterate the point made in the joint statement issued by several international NGOs on the institution-building process: “ What has been achieved as important as it is, is the minimum necessary for the Human Rights Council to have a credible basis to become an effective mechanism for the promotion and protection of human rights. This Council will eventually be judged by its contribution to human rights promotion and protection, not by what have been achieved on paper at this time.”
Source: Office of the United Nations High Commissioner for Human Rights (OHCHR) documents
The writer is Coordinator, Media and Communication Unit, Ain o Salish Kendra (ASK), Dhaka
