Nepal’s engagement in the UPR process and recommendations for improvements of the mechanism

by Joint Secretary Ramesh Dhakal, Office of the Prime Minister and Council of Ministers of Nepal, Mie Roesdahl, PhD Fellow, Centre for Resolution of International Conflicts, University of Copenhagen, and Danish Institute for Human Rights and the URG team Blog BORRAR, By invitation, By invitation BORRAR, Human rights institutions and mechanisms, Human rights institutions and mechanisms BORRAR, Universal Periodic Review

Nepal underwent its second review by the Working Group of the Human Rights Council as part of the Universal Periodic Review (UPR) process on November 4th 2015. The review was the culmination of a long process of internally reviewing the status of implementation of Nepal’s recommendations from the first review, inter-ministerial coordination and workshops, consultations with a broad range of stakeholders, drafting of the report, preparations for the review itself, etc.

This blog post outlines the process of engagement by Nepal in the second UPR cycle and the lessons learned from this process. While much writing on the UPR is concentrated on the Geneva-based review itself, this contribution will address the entire multi-year cycle of the review-process, most of which takes place at national level. Also, the authors will raise important issues related to the original objectives and principles of the UPR as outlined in General Assembly resolution 60/251 (and Council resolution 5/1 on the institution building package) and discuss whether the process of engagement within the UPR mechanism is in fact following these principles and meeting these objectives. The authors represent both an insider’s view (i.e. of the State under review) and an external researcher’s view on the UPR process and Nepal’s engagement in the second cycle.

Overview of Nepal’s engagement in the UPR process

The Office of the Prime Minister and Council of Ministers of Nepal (OPMCM) has the overall responsibility for reporting, overseeing implementation and monitoring in relation to Nepal’s international human rights obligations. Nepal has ratified seven of the nine core human rights conventions as well as several optional protocols and has passed a number of bills that ensure implementation of the international conventions in national legislation. Over the last couple of years, Nepal has reported on its commitments under the ICCPR, ICESCR, CRC, and in the context of the UPR. Preparations to report on the CERD, CEDAW and CAT are on-going. In 2014, Nepal developed its fourth three-year National Human Rights Action Plan (NHRAP), which incorporates the main human rights challenges of Nepal. A Steering Committee led by the Chief Secretary and consisting of secretaries of relevant line ministries has been monitoring the implementation status and, when necessary, supervising and facilitating work of the ministries.

Nepal was first reviewed within the framework of the UPR in 2011. Following the review, the Human Rights Division of the OPMCM together with the National Human Rights Commission (NHRC) and the Office of the High Commissioner for Human Rights (OHCHR) led a process to develop an action plan on the implementation of the UPR recommendations.

Preparations for the second cycle UPR report began in 2013 with compilation of data from ministries and local authorities on the implementation of recommendations. In 2014 and 2015, consultations with all stakeholders were conducted through broad-based regional consultations and thematic workshops in the Inter-Ministerial UPR Committee. The latter Committee includes representatives from all ministries and other state institutions such as the Attorney General, Nepal Police, Nepal Army, and the NHRC. Broader participation of NHRIs and civil society representatives was ensured in the consultations. Several thematic workshops were organised to discuss UPR recommendations and implementation status. For example, workshops on anti-torture and anti-caste-based discrimination involved discussions on the new torture act, opportunities and challenges in implementation of laws and policies, as well as preventive mechanisms. Also, as part of the preparations for the UPR, a number of informal meetings were held with civil society representatives, UN agencies, donor representatives, etc.

Two study tours to Denmark and Geneva helped the drafters of the UPR report and the members of the UPR delegation of Nepal, to prepare for the process of the actual review and engagement in the inter-active dialogue. It was particularly useful to discuss with other State human rights focal points on lessons learned from engaging in the process, on different ways of addressing challenges of human rights implementation, and to get a sense of the environment of the Human Rights Council and the people involved in the UPR process. Unfortunately the April 2015 earthquake in Nepal prevented participation in a broad exchange of lessons learned on UPR among a number of countries that had already undergone the second cycle review and some that were preparing for the review.

Although, the Government of Nepal (GoN) had engaged in extensive dialogue with civil society and the NHRC throughout the UPR cycle, and had also read the reports submitted to the Working Group prior to the review, it was useful for the Nepal delegation to participate in the pre-session organized by UPR Info which facilitated an exchange between civil society organisations from Nepal and diplomatic missions in Geneva. As many diplomatic missions rely on these pre-sessions for receiving information on the human rights challenges of States under review (SUR) and use them for developing recommendations, it is interesting for a SUR to get a sense of how these processes work. Nepal fully recognises the role of civil society in human rights protection and engages with civil society representatives in consultations, informal meetings, etc. in order to discuss ways to promote and protect human rights.

On the day of the review, on 4th November, the Nepal delegation, headed by Deputy Prime Minister Kamal Thapa, invited civil society and NHRC representatives who were present in Geneva for an informal talk at their Geneva Mission. A large number of CSO representatives from Nepal were in fact in Geneva to observe the review and many came for this informal talk during which the delegation listened to the perspectives of those present.

While the Nepal delegation had prepared extensively in order to be able to engage effectively in the inter-active dialogue and answer any questions raised, the time was limited for the State to respond to questions and for actual dialogue to take place. Overall however it was a good session in which 73 delegations made statements and a total of 195 recommendations were made. During the two days between the review and the adoption session, the delegation worked with the Troika (composed of Latvia, Qatar and Morocco) to summarise the proceedings of the review process and decide which recommendations would be 1) accepted, 2) accepted as already implemented or in the process of implementation, 3) considered before the 31st session of the Human Rights Council in March 2016, or 4) not accepted.

Following the review, the final report of Nepal was adopted during the 31st session of the Council in March. The GoN will now initiate a process to develop an action plan for the implementation of accepted recommendations. A framework to facilitate and monitor this process will be put in place and efforts will be made to integrate UPR implementation and monitoring within the framework of the NHRAP. It is high on the agenda of the GoN to develop a strong national infrastructure for securing implementation of both the NHRAP and the UPR recommendations and for monitoring implementation. The Human Rights Division of the OPMCM will work closely with the NHRC and other stakeholders to ensure the effective functioning of this framework which will be in line with the resolution adopted by the Human Rights Council at its 30th session (resolution 30/25) on ‘Promoting international cooperation to support national human rights follow-up systems and processes.’.

Challenges of the UPR as a mechanism intended to promote human rights change at national level

The aim of the UPR process is to promote human rights change at national level. This was underlined in General Assembly resolution 60/251 (March 2006) establishing the Human Rights Council and its UPR mechanism. The resolution states 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 review shall be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity-building needs…’ In this sense the UPR is meant to be different from but complementary to other human rights mechanisms such as Treaty Bodies and Special Procedures, which are more focused on documenting human rights violations and trying to pressure the State to change its national human rights protection system and practices. The question is whether the UPR is in fact able to live up to the above principles and obligations. Are the procedures of the UPR conducive to cooperation and interactive dialogue, and does it treat all States equally?

There are extensive efforts to try to ensure constructive dialogue among states in the UPR. However, the manner of dialogue and engagement is perceived by many States of the Global South to be quite critical of the SUR. Also, the amount of recommendations – with Nepal receiving 195 in the second cycle – is so large that it is an almost impossible to convey the results of the review to the general public and politicians at national level and to mobilise the different national stakeholders/institutions to take action to implement recommendations. Many recommendations are focused on civil and political rights, even though Nepal believes in the indivisibility of human rights, and has developed an integrated framework of ESC rights and CP rights.

Although the UPR Branch of OHCHR and resolutions of the Council regarding the UPR, focus on the UPR being a multi-year process rather than a ‘one-off’ review in Geneva, the activities related to the UPR lie mainly around the review itself. There are few incentives for States to be actively involved in the UPR in between reviews, particularly if the State, as is the case with Nepal, has other human rights protection frameworks in addition to the UPR. It may be useful to develop more entry points for support to State human rights focal points in their efforts to coordinate and facilitate other State and political institutions/actors to engage more consistently in human rights protection efforts.

There are limited possibilities for getting technical support for engaging in the UPR process. Bilateral donors are often difficult to work with because they represent other countries and interests, and they are not well coordinated. It would be good if technical support was readily available from independent agencies with expertise in this particular area, for example relevant UN agencies, independent State institutions such as NHRIs and/or from international organisations with a specific expertise in this area. Technical support will have to be long-term and follow the cyclic nature of the UPR process.

There are also challenges at State level in terms of its engagement in the UPR mechanism. These include, political turmoil that diverts attention from human rights issues, lack of resources to secure the necessary infrastructure to implement certain recommendations, and lack of prioritisation of human resources to coordinate human rights reporting, supervision and monitoring.

Recommendations for addressing the challenges of the UPR

  • Countries giving recommendations should consider the priorities of the SUR and the existing national frameworks for ensuring human rights protection.
  • Consider how to ensure an inter-active dialogue that is in fact constructive and where ideas and lessons learned can be shared in order to mutually reinforce national-level human rights protection. While the original resolutions underlying the Council and the UPR mechanism emphasised the sharing of lessons learned on human rights protection at national-level among States, this is not a key part of the process or of the UPR report developed by the Working Group (under the leadership of the Troika). Consider, therefore, how to develop more activities during the four-year process that involve and support the State focal points in further developing the UPR mechanism and creating incentives for human rights protection at national level.
  • Consider how to ensure that civil society is less a partner of the international community in the UPR process and more a main actor at national level. While it is good that recommendations are based on reliable data which NGOs may provide, the current system does not ensure equal access for all human rights actors, neither civil society nor State, to raise their concerns in Geneva, and the State is not a formal party in this exchange.
  • Ensure easily available and relevant technical support to State human rights focal points, and take into consideration the specific conditions of State institutions, including not being able to partner directly with non-independent entities. Technical support must be based on sharing and mutual respect and not on unrealistic demands and criticism. Funding for technical support is better channelled through multi-lateral or other independent entities.
  • Enhance the link between the recommendations made and the support provided. Especially when recommendations are made by countries with a diplomatic representation in the SUR, the ‘reviewing State’ could make commitments to support the SUR in its efforts to implement the recommendation. Alternatively, multilateral funds could be made more readily available to support countries in their efforts to implement recommendations.

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Mr. Ramesh Dhakal is Joint Secretary in the Office of the Prime Minister and Council of Ministers of Nepal; and Ms. Mie Roesdahl is a PhD Fellow at the Centre for Resolution of International Conflicts, University of Copenhagen, and Danish Institute for Human Rights

Image: Nepal’s UPR Delegation , 2015.

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