No 38, August 2008
Fair Comment and Free Speech: NGO participation during the UN's Univeral Periodic Review
Gareth Sweeney [1]
The new universal periodic review (UPR) mechanism of the UN Human Rights Council (the Council) represents the latest addition to the UN human rights machinery to promote and protect human rights.[2] It is expected to review the human rights situation of all UN member states over a four-year cycle in a manner that would move away from the alleged selectivity of its predecessor, the UN Commission on Human Rights, in dealing with country situations. It is still too early to say whether the UPR has succeeded over the course of its first two sessions in meeting its lofty objective of improving the situation of human rights on the ground.[3] However, what was already decided prior to these first sessions was that NGOs would play no participatory role in achieving such objectives through the interactive dialogue of the UPR. Instead, Council Resolution 5/1, which establishes the modalities of the UPR, made clear that other stakeholders may submit credible and reliable information relevant to the state under review and that direct participation would be restricted to the ‘opportunity to make general comments before the adoption of the outcome by the plenary [of the Human Rights Council]’[4] at the conclusion of the process.
The second week of the 8th session of the Council in June 2008 was dedicated to the adoption of the reports of 32 States under review from the first and second sessions of the UPR.[5] The Council agenda also allocated two hours for a general debate on the UPR, providing the first opportunity for states and civil society to express views on the performance of the UPR so far.
When NGOs spoke on 9 June in relation to Bahrain, the first state report to be considered, it was immediately clear that there was difference of understanding regarding the meaning of participation. Frontline International was the second non-governmental organisation (NGO) to speak, declaring that human rights defenders were harassed, detained, and subjected to excessive force in the country. Pakistan then intervened to demand that NGOs ‘should not re-open discussions mentioned in the Working Group’. The President then asked that NGOs ‘stick to the provision of Resolution 5/1 as well as all relevant documents’, which he claimed were ‘perfectly clear’. However, as these documents state that NGOs may make ‘general comments’, the President’s directions were anything but clear.[6]
This failure to clearly rule on the issue meant that the impasse continued throughout the week. Any NGO that addressed the situation of human rights in a country under review was interrupted [7], even when the statement was linked to the outcome report of the Working Group, with the request (usually from Egypt) that the President uphold his own ruling and that the comments of the NGOs in question be removed from the final report of the session. This was followed by states such as Canada, Mexico and Switzerland challenging this ‘excessively narrow’ interpretation of Council Resolution 5/1 and the President’s own statement on modalities.[8]
It is worth noting that complaints by states were limited to NGO interventions directed at African or OIC States.[9] Egypt, Algeria and Pakistan were notably silent when NGOs criticised the human rights situation in France or the Republic of Korea, for example, even without clear links to the recommendations of the UPR report. It is also worth noting that many states who claim to be advocates of the work of human rights defenders, including those who continually raised the issue during the UPR itself, were generally silent throughout the procedural dispute, with the exception of those mentioned above.
NGOs that were not interrupted were generally more critical than member and observer states of the human rights situations in states under review, and provided specific examples of issues addressed during the UPR. Many NGOs also used the speaking time to propose means by which states could implement recommendations [10], and/or challenged the state’s position on particular issues or recommendations that the state had rejected.[11] Some of the more critical discussions related to Pakistan, where many NGOs [12] expressed concern over the state’s rejection of a number of recommendations on the basis that they did were not ‘universally recognised human rights principles’.[13] In the case of Algeria, among others, NGO interventions were useful in pointing out that the recommendations that the State had rejected were in fact the most relevant recommendations in the report. In relation to Argentina, NGOs stressed that the recommendations of the UPR had not addressed many of the most serious issues in the country. Concerning South Africa, NGOs highlighted the apparent lack of commitment of South Africa to the UPR process.[14]
On a more positive note, a high percentage of states under review responded to issues posed by NGOs in their interventions,[15] thus making use of the opportunity for engagement. In particular, Ecuador and Argentina, as states under review, underlined the importance of NGO participation at this stage of the UPR process.
Overall, relatively few stakeholders spoke.[16] This may have been attributable to the short time between the last session of the UPR and the Council, and the lack of clarity surrounding modalities for participation leading up to the session. Many NGOs may also have considered that a two-minute allocation of speaking time was not the best use of limited resources, and others may have wished to see how practice evolved following the first round.
NGOs also used the opportunity of the general debate on the UPR to relay their views of the first sessions of the UPR and recent developments. Again, NGOs were more constructively critical of the process than states, with a general sense that judgement was still reserved on the UPR. The issues raised included: a lack of inclusion of NGOs in national consultations; the practice of certain groups of states lining up to praise their allies; a lack of clarity about NGO participation in the adoption of the outcome; a lack of response by the state under review to some of the recommendations made; and attempts by some states to call into question universal human rights law and principles. Once again Egypt attempted to interrupt NGOs under the general debate on the UPR [17] when reference was made to country situations, and once again the issue was not resolved by the President.
One lesson learned from the first session of adopting UPR reports at the Council was that certain states are intent on limiting the space provided for NGO engagement. Due to the misreading of Council Resolution 5/1 by the then President of the Council and his failure to conclusively resolve the matter, interruptions are likely to reoccur at the next session of the Council to address UPR reports in March 2009. NGOs will therefore need to be strategic in addressing country situations by linking their comments to the outcome document of the UPR wherever possible. Nonetheless, the tactics of Egypt and others should not discourage NGOs from using the opportunity to provide general comments on the situation of human rights in each country in an ‘objective, transparent, non-selective, constructive, non‑confrontational and non‑politicised manner’, as the drafters of the UPR fully intended.
NOTES
[1] Gareth Sweeney is Deputy Manager of the International Human Rights Defenders Programme at the International Service for Human Rights (ISHR), Geneva. All views expressed are the author’s own.
[2] For a general introduction and all relevant information on the UPR see http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRMain.aspx ; http://www.ishr.ch/; and http://www.upr-info.org/
[3] For a comprehensive critical analysis of the UPR process to date, see http://www.ishr.ch/hrm/council/upr/upr_overview_sessions_1_and_2.pdf
[4] Council Resolution 5/1, para. 31.
[5] The States reviewed during the first session of the UPR were: Bahrain, Ecuador, Tunisia, Morocco, Indonesia, Finland, United Kingdom, India, Brazil, Philippines, Algeria, Poland, Netherlands, South Africa, Czech Republic, Argentina. The second session covered: Gabon, Ghana, Peru, Guatemala, Benin, South Korea, Switzerland, Pakistan, Zambia, Japan, Ukraine, Sri Lanka, France, Tonga, Romania, Mali. The summaries of the consideration of all reports are available under ISHR’s Daily Updates at www.ishr.ch.
[6] Council Resolution 5/1, para. 32 states that NGOs may ‘make general comments before the adoption of the outcome by the plenary’.
[7] NGOs increasingly linked their references to human rights to recommendations in the UPR report, which lessened the opportunity Egypt and others to interrupt the proceedings with ‘points of order’,
[8] President’s statement on modalities and practices for the Universal Periodic Review Process, 8/PRST/1, available on the extranet at http://portal.ohchr.org/
[9] Interruptions took place during the adoption of the reports regarding Bahrain, Morocco, Algeria, Pakistan.
[10] For example, Action Canada for Population and Development, speaking on behalf of partner organisations in Ecuador, welcomed Ecuador’s inclusion of sexual orientation in their voluntary commitments, and called for sexual orientation to be listed as grounds for discrimination in accordance with recommendation 7 of the UPR report.
[11] See for example the Centre on Human Rights and Evictions (COHRE) in relation to Switzerland and economic, social and cultural rights, and the National Human Rights Commission of Korea in relation to the National Security Act.
[12] International Federation of Human Rights Leagues, Human Rights Watch, International Commission of Jurists, Amnesty International, Asian Legal Resource Centre, Women’s Rights Action Watch.
[13] 1See A/HRC/8/42, para. 108, referring to recommendations in paras. 23(b) on repealing provisions criminalising non-marital consensual sex and failing to recognise marital rape – recommendation made by Canada; 23 (f) on decriminalising defamation (Canada); 30(b) on reviewing the death penalty, with a view towards introducing a moratorium and abolishing it (United Kingdom); 30(d) on repealing the Hadood and Zina Ordnances (United Kingdom); 43(c) on declaring a moratorium on executions and moving towards abolition (Switzerland); 62(b) on decriminalising adultery and non-marital consensual sex (Czech Republic); 62 (e) on prohibiting provisions of the Qisas and Diyat law in cases of honour killings (Czech Republic)
[14] Amnesty International.
[15] See for example, Bahrain in relation to women’s participation in public life; Brazil in relation to human rights defenders and collaboration; Poland on renditions; Peru on the advancement of women; Switzerland on economic, social and cultural rights.
[16] For example no NGOs spoke in relation to Gabon and Mali, and only one in relation to Zambia.
[17] For a review of the general debate on the UPR on 13 June 2008, see ISHR’s Daily Update at http://www.ishr.ch/hrm/council/dailyupdates/session_008/13_june_2008.pdf