The HRC's universal review: Fig leave or effective tool? edit

The Human Rights Council has been in place since 2006. The Council was then tasked to carry out a "Universal Periodic Review". Under this mechanism, the Council reviews, on a regular basis, the fulfillment by all 192 UN Member States of their human rights obligations and commitments. It is to be a cooperative mechanism, based on objective and reliable information, and equal treatment of all states. The review process is to fully involve the state under review, while at the same time not be overly burdensome for states.

A constant criticism of partiality, selectivity and double standards of the old Commission on Human Rights was at the origins of this review. The Commission, in its dealing with country specific situations, was accused of only targeting those countries where the Western democracies did not have much to lose. While the Commission targeted Fiji, it would not go after China or, since the war on terror, the US.  Also, human rights abuses in democracies, because minor in comparison to manslaughter in other parts of the world, would never get the attention of the Council, thus liberating the established Western democracies from multilateral criticism.

The original idea was hence to establish a mechanism that would bring all countries under review at the United Nations. This idea was not particularly new -the Commission abolished in 1981 a similar review mechanism 25 years after its establishment. France had in the 1950s proposed a reporting system for the UDHR.  The review mechanism which was then adopted left it open to member states to prepare their reports in the way they wished. The cumbersome process without tangible results had however led to its abandonment (Alston 2006)

More than 25 years later, the UN agreed that each year 48 nations, comprising a mixture of current HRC members and others, have to undergo a review that tests if member states have fulfilled their human rights obligations. Importantly, member states are not tested against international human rights standards, but against their obligations and commitments, which limits the review to the fulfillment of those treaties that a state has actually ratified and adhered to. These evaluations do not only involve input from the individual governments under review, but also contributions from treaty bodies and other relevant organizations, including non-governmental organizations (NGOs). 

While the first round of the Review had been repeatedly postponed, reducing its credibility, its final quick off in April 2008 has been widely considered as positive.   

In the lead up process to the first round of member states' reviews, human rights and other civil society organizations did actively engage in the process and communicated their observations to the Office of the High Commissioner for Human Rights, producing a considerable amount of information and well targeted criticism. Also, many member states did engage with civil society in the preparation of their national reports. Interestingly, the Council did not take up one of the elements of the former above mentioned review mechanism of the Commission. The Commission had advised its members to set up an advisory body to assist in the preparation of the governments' annual report. The Advisory board was supposed to be composed of experienced and competent persons. Such a recommendation (or even obligation) could certainly have strengthened the UPR's impact on the ground, and more specifically its stimulation of an authentic national dialogue over domestic human rights policies.

In the review, member states engaged on a high-level. Many ministers attended from developing countries, and secretary of state level representatives from developed countries. The high-level representatives presented their national report and answered questions from other member states during the one hour slot per country. They were in many cases accompanied by a large group of delegates from various ministries of their capital. This allowed a discussion not only among diplomats from foreign ministries, but also an interaction between representatives from national human rights machineries or justice ministries for example. This is important to mention insofar as one problem of the Council (and previously the Commission) has been that the infighting among diplomats in Geneva remained without little impact from or in capitals.

While not all member states' representatives asked "though" questions to their peers, many asked serious and still relevant questions. For example, Bangladesh asked Morocco for more information about its policy initiatives to promote the rights of the child, while Kuwait asked specifically about the objectives of the State's National Plan on Childhood 2006-2015. Or Pakistan requested from Ecuador details on the improvement in conditions for Afro-Ecuadorians. Nonetheless, in the Tunisian case, from 64 interventions by other member states, more than 50 States (mainly Islamic countries) intervened to praise Tunisia for its human rights performance.

Importantly, European delegates also asked difficult questions to their European counterparts - about homophobe policies in Poland to minority rights questions in Romania. Most questions addressed to EU members from non-EU members concerned immigration and the rights of migrants as well as the role of human rights in the fight against terrorism.  For example, Peru, Guatemala, Algeria and Egypt recommended the Netherlands to ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW). The Netherlands oppose this as the Convention requires the state to give the same level of access to social security, health care and education to legal as well as illegal migrants. France was criticized for not having statistical data in the economic and social field based on ethnic background and other criteria.  While the criticism of the Netherlands can be coined in economic terms (the country is not willing to pay for illegal migrants), the French case is more delicate. In fact, the French policy reflects the French mainstream conception of statehood and human rights. Explaining the French position or defending it in front of other member states hence becomes a delicate endeavor: how not to argue that this policy is based on French tradition or culture? An argument based along such lines would inevitably have allowed other countries to also refer to tradition and culture to explain (certainly more immediate and grave) human rights concerns. The answer given by the French was evasive.

Precisely such moments and discussions might however stimulate a new thinking and reflection among all partners involved in the process. If France for example is to take the process seriously, it has to develop a satisfying answer that is accessible and understandable for all participants for the follow up process.

A concern remains about the follow up to the reviews: will member states actually take the voiced criticism into account or let it bypass? Here, European member states have an important role to play in taking the process serious and proving willingness to engage with the criticisms from other member states and NGOs. Furthermore, are member states willing to act upon the information delivered? Are European donors for example ready to link this process to their funding in the concerned countries? Ecuador for example called for assistance in the implementation of the recommendations made- are European diplomats in Geneva taking the review serious enough to call their development ministry counterparts?

The prospects of the new mechanism are better than expected, but nothing precludes it from going down the same road than its predecessor. To make it a credible and useful instrument, the lead-up and the follow-up processes have to be taken seriously by all actors. And maybe next time the Europeans also send ministers and large delegations from their ministries.