Human Rights Council Makes Progress on Modalities for Universal Periodic Review

New York, 26 March 2007 – On 15 March the Human Rights Council heard the reports of its institution-building working groups, including on progress toward developing modalities for the Universal Periodic Review (UPR) mechanism.

The UPR is a new mechanism established by the Council’s founding resolution, under which all UN member states will be subject to scrutiny of how they fulfilled their human rights obligations. The General Assembly established an “inter-sessional open-ended Working Group” to develop the necessary modalities for this new procedure. Ambassador Mohammed Loulichki of Morocco facilitates the working group on the UPR. No countries have yet been reviewed under the UPR mechanism; the Council aims to start conducting reviews in its second year (which begins in June 2007). Thus, the modalities must be decided by the end of its first year (May 2007).

In recent working group meetings (12-16 February), agreement was reached on several points – in fact, the UPR working group reportedly is much closer to conclusion than the others – while some points still are unresolved. In the Council meeting on 15 March, a non-paper by Ambassador Loulichki provided states with a summary of areas of convergence found so far, as well as the outstanding issues. In response on 19 March, states generally reiterated their positions expressed previously in the working groups. Thus, making further substantive progress was left to the next round of information consultations on the issue. These consultations are ongoing parallel to the current Session of the Council.

The UPR topics discussed to date include: international humanitarian law as a basis for review; keeping the reporting requirements of the UPR minimally burdensome for states; the participation of various stakeholders; the level of development of the country undergoing review; the frequency and length of the review process; and whether the review would be conducted in the plenary or working groups.

One of the most notable developments between the working group meetings of December 2006 and the recent meetings is the emphasis on the role of the “concerned state” in the UPR decision-making process. In the modalities of review agreed so far, the state has been given a stronger and more central role. An outstanding question is what measures the Council may take if a state does not cooperate with requests of the Council during the review. Below are summaries of other areas of agreement and disagreement thus far on the UPR modalities.

Summary: Areas of Continued Divergence

Role of experts: The role of experts in the review was supported by the European Union which also encouraged the Council to adopt the ability to take strong measures in cases where the concerned state does not cooperate with the review. Pakistan requested further discussion on the modalities of rapporteurs to facilitate the review and Malaysia did not support the inclusion of experts in the review process.

Role of “concerned state” in UPR: Members of the Organization of the Islamic Conference prioritized the role of the state and said that the basis for review should be a report submitted by the concerned state itself.

Role of other stakeholders: Pakistan (for the OIC) questioned including other stakeholders, arguing that their information would not be credible. Brazil supported the participation of other stakeholders, including NGOs, in the review process. The International Federation of Human Rights Leagues (FIDH) encouraged the Council to include NGOs at all levels of the UPR.

Location of UPR: The working group has discussed whether the UPR should be conducted in the Council plenary or also in working groups. Several council members appeared to be attracted to a proposal to establish one working group, consisting of 25 members based on equitable geographic representation, rather than multiple working groups, i.e. thematically separated working groups.

Accounting for level of development: Pakistan (on behalf of the Islamic Conference) reiterated its request to take into account the aspects of each country (the level of development as well as the religious and cultural specificities) when conducting the reviews. The Non-Aligned Movement (NAM) represented by Cuba also chose to repeat its opposition to create the UPR as a tool for imposing country-specific resolutions or mandates against the state under review.

Summary: Areas of Agreement

This summary does not list all elements of convergence so far, but rather specifies additions and changes to the conclusions reached in the previous working group meetings (29 November-8 December 2006), as summarized in detail here. A facilitator’s non-paper serves as the current compilation document for these discussions and decisions. Text in bold is the most recently agreed adjustment to the relevant section in the non-paper.

Basis for review:

In December, states were divided over whether to include International Humanitarian Law as a basis of review. In the informal discussions on 19 March. Switzerland suggested a new wording, which received general support among delegations: “In situations where IHL is applicable, human rights law shall be applied in light of relevant IHL.”

States had also disagreed about including commitments in UN conferences and summits; agreement has now been found to include: “Commitments undertaken in relevant United Nations conferences and summits.”

Principles: States agreed on the following language:

Minimizing Reporting Burden: “The UPR should not be overly burdensome to the reporting State or to the agenda of the Council.”

Type of Process: “The UPR should be an intergovernmental process, United Nations Member-driven and action-oriented.”

Inclusiveness: “The UPR should ensure participation of all relevant stakeholders, including non-governmental organizations (NGOs) and national human rights institutions (NHRIs), in accordance with General Assembly resolution 60/251 and Economic and Social Council resolution 1996/31, as well as any decisions taken by the Council in this regard.”

Accounting for “level of development”: “The 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.” This topic drew a great deal of attention during the informal meetings on 19 March. A block of developing countries favored a consideration of the level of development and historical, cultural, and religious background in the review of each state’s human rights performance. Other states preferred to state that all states had a common duty to promote and protect human rights, regardless of those “particularities.” The latter states argued for reducing this consideration to the drafting of reviews’ final conclusions and recommendations, rather than considering it at all steps of the review. This remains an area of divergence.

Objectives: In the December meetings, most states agreed that the UPR’s objectives should include “fulfillment of the States’ capacity and technical assistance.” This has since been altered to: “Enhancement of the State’s capacity and technical assistance, in consultation with and with the consent of the State concerned.”

Periodicity and Order of Review: States agreed to review all members (and observers) of the Council every four to five years, with a three-hour review meeting. The following details were agreed:

“The first member and observer States to be reviewed will be chosen by drawing of lots. Alphabetical order will then be applied beginning with these two countries, with the exception of those who volunteer to be reviewed.”

“The periodicity of the review will be either four years (49 countries per year) or five years (39 countries per year) to be decided.”

“The duration of the review is three hours. Additional necessary time (approximately one hour) will be allocated for the consideration of the outcome by the Council plenary.”

Process and Modalities of Review: Whereas the “basis for review” refers to the standards by which a state’s human rights record would be judged, the “process and modalities” of review addresses the information used to assess that record. States have reached agreement on:

“A report prepared by the State concerned on the basis of General Guidelines to be adopted by the Council, and any other information considered relevant by the State concerned. States are encouraged to prepare their report through a broad consultation process at the national level with all relevant stakeholders”

“Compilation by OHCHR (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”

In the review, the Council could also take into consideration additional credible and reliable information provided by other relevant stakeholders.” While many states had agreed with this point, the Organization of the Islamic Conference opposed it, arguing instead that only the state’s own report is credible. This will require further consideration in the working group.

“Whether the review is conducted in plenary or in working groups, a rapporteur(s) will be selected, respecting geographical representation, from among the members of the Council or of the working groups to prepare the review outcome by the plenary.” As mentioned above (see Summary: Areas of Continued Divergence), states still disagree over whether the review should take place only in plenary or working groups.

Outcome of the Review: States supported the following changes to previously agreed points on the outcome:

“Assessment in an objective and transparent manner of the human rights situation in the reviewed country, including positive developments and challenges faced by the country”

“Provision of technical assistance and capacity-building in consultations with and with the consent of the country concerned”

Mode of Adoption: This was a new topic of discussion. States agreed that: “The decision-making for UPR outcomes, in which the country concerned should be fully involved, should be the same as for other decisions of the Council.”

Follow-up to the Review: Regarding how the review’s outcome would be applied, states agreed that:

“The outcome of UPR, as a cooperative mechanism, should be implemented primarily by the State concerned and, as appropriate, by other relevant stakeholders.”

The international community will assist in implementing the recommendations and conclusions regarding capacity-building and technical assistance, in consultations with and with the consent of the country concerned.

For the Facilitator’s summary of the working group meetings on Universal Periodic Review (12-16 February), click here.

For a summary of the informal discussion of the UPR (19 March) provided by the International Service for Human Rights, click here.

Next Step

The informal consultations on the Universal Periodic Review were resumed today, 26 March. ReformtheUN.org will continue to provide updates on relevant progress as soon as possible.

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