One of the leading human rights defender organisations in the Democratic Republic of the Congo is called ‘Voice of the Voiceless.’ And those who lack the influence and resources to resist oppression are, in fact, those who need the protection of the international community the most. The Human Rights Council’s Universal Periodic Review (UPR) was established to promote human rights, especially those of the ‘Voiceless.’ At the same time, however, the UPR was explicitly designed to be a government-to-government instrument in which NGOs and civil society could provide advisory input, but would have no direct role in the issuance of recommendations.
Given this situation, do participating States in the UPR actually listen to the voiceless? If so, how well does it accomplish this task? To what extent does the reality of events on the ground actually percolate into UPR deliberations? Is the UPR simply an esoteric debating club, estranged from those it is supposed to be helping? These are complex and challenging questions to answer, but ones that certainly need to be asked this year, the tenth anniversary of the creation of the Council. No longer can we simply point out that the UPR is a new mechanism and that the jury is out. After ten years and very nearly two full cycles, we now have enough information to begin to draw some conclusions about its functioning.
Anecdotal evidence, while hardly scientific, can be compelling. For example, at a recent conference assessing the functioning of the Council after ten years, one NGO representative recounted soliciting the opinions of internally displaced Kenyans (displaced following the 2007-2008 post-election violence) regarding what recommendations they would like to see made by the international community to the Government of Kenya. The NGO shared these ideas with a number of missions in Geneva. When the Kenyan UPR review subsequently took place, representatives of the internally displaced Kenyans watched via webcast as States made recommendations that actually utilized their input. This was an extremely empowering experience. Similarly, in meetings with the author, Ethiopian human rights activists were adamant that the UPR had provided them with international credibility and cover to raise UPR-related issues that the Ethiopian Government had agreed to implement. These types of examples reflect what the UPR’s framers had hoped for: an instrument in which those without power and agency could connect with the international community to effect change at the national level.
Anecdotes, however, do not suffice, especially as the government-to-government nature of the UPR gives rise to the criticism that the UPR risks morphing into an uncritical ‘I’ll scratch your back, you scratch mine’ forum, detached from the reality of human rights in the real world. Is there any proof that grassroots perspectives, as articulated by non-governmental and civil society organisations, are being systematically heard and acted upon by the governments, the only entities directly allowed to issue UPR recommendations?
In fact there is some indication that civil society input may be influential. A 2013 paper co-written by this author examines the extent to which State recommendations made in the UPR reflect draft recommendations proposed by CSOs.[1] It found that two-thirds of CSO recommendations submitted to the UPR were reflected partially or fully in State recommendations. While these findings do not prove causality, i.e. that CSO recommendations specifically led to related State recommendations, they do show that State recommendations encompass CSO recommendations to a significant extent.
There is a modest caveat to these findings: almost three-fifths of the State recommendations reflecting CSO perspectives do so in a general sense, compared to the approximately forty per cent of recommendations that more specifically reflect CSO recommendations. In general, however, this information suggests that CSO engagement in the UPR process is worthwhile and should be accentuated. The high correlation between CSO and overall State recommendations supports the legitimacy of the UPR process. Similarly, other research by this author indicates that over one-third of all UPR recommendations are action-oriented, requiring specific and tangible actions by States under Review to implement these recommendations.[2]
What can be done to ensure that the positive aspects of the UPR can be strengthened, and that the UPR can fully achieve its potential as a rare example of a mechanism that can transcend regional, religious, linguistic, cultural and other differences to have a positively impact on the enjoyment of universal human rights?
- First, States must ensure that the UPR does not descend into a pro forma exercise; that it remains a priority and that the international community takes notice should a State not fulfil its obligations under international law. One visible example of this would be if SuR delegations to Geneva continue to be high-level, led by senior government officials rather than by ambassadors resident in Geneva.
- Second, consideration should be given to encouraging some practices, which have evolved voluntarily, so that become the norms of conduct of the UPR. One such example is the issuance of mid-term implementation reports by SuRs.
- Third, the functioning of the UPR itself could be streamlined, for example by the grouping of recommendations into thematic clusters. This latter idea has encountered some resistance, including States that do not wish to have their recommendations subsumed in bundles with other States recommendations, but this type of problem need not prove to be insurmountable. Another controversial idea with merit would be to consider including some elements of expert opinion and judgement into the recommendations process, to help ensure the relevance and utility of recommendations.
- Finally, States must be prepared to invest greater resources in the UPR. The UPR Trust Fund that provides technical assistance to States seeking to implement recommendations is, for example, woefully under-funded.
Can the UPR stand the test of time, and become a jewel in the crown of the international community’s efforts to be a voice for the voiceless? While it is making a useful start its success is by no means assured. A collective effort is needed to ensure that the UPR does not follow in the paths of other well-intentioned but ultimately failed attempts to generate collective efforts on behalf of global human rights, such as the League of Nations and the UN Commission on Human Rights.
Notes
[1] McMahon, E, Pescatore, M., Hanish, R. and Carr, F. UPR: Do NGO-Suggested Recommendations Matter? The Friedrich Ebert Stiftung, Geneva, November, 2013. http://library.fes.de/pdf-files/iez/10343.pdf
[2] McMahon, Edward R. and Johnson, Elissa. “Evolution Not Revolution: An Analysis of the First and Second Cycles of the U.N. Human Rights Council Universal Periodic Review Mechanism”. The Friedrich Ebert Stiftung, Geneva, October, 2016. http://library.fes.de/pdf-files/iez/global/12806.pdf
Feature Image: United States Mission Geneva, ‘Human Rights Council adopts Final US UPR Outcome Report,’ 24 September 2015, licensed under CC BY-ND 2.0.
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