Women and International Human Rights Law

Universal Periodic Review in Practice

Gayatri Patel

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351235082
• Edition: 1
• Topic: Droit
• Subtopic: Droit international

This book presents the findings of the first comprehensive study on the most recent and most unique and innovative method of monitoring international human rights law at the United Nations. Since its existence, there has yet to be a complete and comprehensive book solely dedicated to exploring the Universal Periodic Review (UPR) process. Women and International Human Rights Law provides a much-needed insight to what the process is, how it operates in practice, and whether it meets its fundamental aim of promoting the universality of all human rights.

The book addresses the topics with regard to international human rights law and will be of interest to researchers, academics, and students interested in the monitoring and implementation of international human rights law at the United Nations. In addition, it will form supplementary reading for those students studying international human rights law on undergraduate programmes and will also appeal to academics and students with interests in political sciences and international relations.

1 A New Kid on the Block: What Is the Universal Periodic Review, and Why Was It Established?

Introduction

The Universal Periodic Review (UPR) is the most ambitious and intriguing development in the monitoring of international human rights law, in recent memory. Before embarking on the merited detailed examination of the mechanics and modalities of the UPR process, it is important to understand the historical context in which it was established to facilitate a fuller appreciation of the purpose, aim, and objectives of the review process, and, more importantly, to understand the impetus behind devising the UPR in the first place. To help illustrate this, the focus of this section is to briefly discuss the manner in which the human rights monitoring mechanisms operated under the predecessor to the United Nations (UN) Human Rights Council: the Commission on Human Rights (‘Commission’).¹ The first section will provide a historical account of the human rights monitoring undertaken at the predecessor to the United Nations Human Rights Council: United Nations Commission. The section will illustrate how the Commission undertook the task of monitoring human rights, which was one of the most significant contributions to its demise. A challenge is put forward to the preconceived notion that the demise of the Commission was solely due to the ‘politicised’ manner in which the monitoring of human rights was undertaken, and rather suggests new avenues of exploration to possibly explain the abolition of the Commission. Asking this new question in relation to old explanations on the reasons behind the abolition of the Commission is important to be able to assess the successes of the new human rights monitoring mechanism with a fresh perspective, which is not tarnished with the pre-existing measures of failures that had tarnished the Commission leading to its abolition. The second section will provide details of the mechanics and modalities of the UPR process. The third section will explore how the UPR process is tasked to give effect to the principle of universality, which is based both on the universal applicability of the process, but also to give effect to the normative claim of universality of international human rights norms. This embedded principle of universalism will be discussed with the aim of illustrating the primary focus of this investigation.

Asking a New Question in Relation to Old Explanations: A History of Human Rights Monitoring at the United Nations

In 1946, one of the first acts of the newly formed UN was to establish the Commission on Human Rights. Established under the auspices of Economic and Social Council (ECOSOC), the Commission was devised with the intention to create a body with the capacity to oversee one of the fundamental pillars of the new international legal orders under the UN Charter: the promotion and realisation of human rights.² The newly constituted Commission set forth a vision of an international bill, which consisted of three parts: a declaration of moral principles; legally binding obligations in the form of treaties; and measures of implementation. The Commission fulfilled the first two elements of its vision in the first 20 years, as its work primarily centred on the development of international human rights standards, with the drafting of the Universal Declaration of Human Rights, as its first task.³ The Commission was the principal forum for international human rights discourse, as well as initiating and drafting various normative instruments, which later materialised as key international human rights treaties, which collectively were known as the international bill of rights.⁴ This era of the Commission’s work has rightfully been praised for its inspirational human rights movement in establishing a solid normative foundation in the UN’s history.⁵ Nevertheless, the same period has also been criticised for its failure to take action in response to conscience-shocking human rights atrocities that demanded immediate action,⁶ demonstrating that the measures for implementation were proving to be far more difficult to conceptualise and establish.

The Commission’s failure in taking action in relation to implementation stemmed from the ambiguity in its 1946 establishing resolution in relation to the body’s mandate to respond to complaints of human rights violations received from individuals against their respective states, euphemistically labelled as ‘communications’. In this way, it was unclear as to whether the Commission had the mandate to monitor human rights records of member states.⁷ In addressing this ambiguity, and adopting the position that the body was to prioritise promotion over protecting human rights, the Commission in 1947 issued a statement that it had ‘no power to take any action in relation to communications received by individuals’.⁸ Despite this declaration, the Commission continued to receive an annual figure of 25,000 complaints of human rights violations.⁹

After a period of 20 years, and largely due to the wave of decolonisation that significantly changed the composition of the UN, the newly independent states pushed for establishing procedures to respond to human rights violations and thereby bringing the Commission’s ‘doctrine of no action’ to an end in 1967.¹⁰ The efforts of the newly independent states set the foundations for the procedures and mechanisms that were later developed to respond to human rights violations on an annual basis in any part of the world. This initiative established a form of human rights monitoring at the Commission in response to violations, which involved: debates on human rights norms and violations, establishment of working groups and rapporteurs, the adoption of resolutions of concern and condemnations on issues and situations, as well as generation of technical advice and support to countries. The irony is that these very procedures and mechanisms to respond to human rights violations, which were established with the most noblest of intentions were the most significant contributors to the demise of the Commission.

In 1967, based on the resolution 1235 (XLII) of the ECOSOC, the members of the Commission, or the Sub-Commission, could publicly mention violations of human rights that were brought to its attention through the complaints it had received. This initial debate could lead to the adoption of resolutions or the establishment of a special procedure, which could either focus on human rights situations in specific countries under the rubric of providing technical advice (country based procedures) or a specific human rights issue that may cover a number of different countries (thematic procedure). Later in 1970, ECOSOC adopted the resolution 1503 (XLVIII), which established a confidential procedure to respond to the individual complaints that were received by the Commission. The adoption of the 1503 procedure was a product of state delegates with the aim of competing objectives and goals, who sought to keep the language of the procedure as open ended, flexible, and ambiguous as possible. In this way, both the resolution and the criteria for the use and operation of the procedure were ‘perfect case studies in ambiguity’.¹¹ Although adopted after the 1235 procedure, and built upon it, the 1503 confidential procedure developed at a more rapid pace, and has often been used as a precursor for the public procedure. The resolution provided the mandate to the Commission to examine complaints pertaining to ‘situations which appear to reveal a consistent pattern of gross and reliably attested violations of human rights requiring consideration by the Commission’.¹² The complaints must originate from a person, or a group of persons, who can be clearly identified as being victims of the claimed violations. The complaint must not be politically motivated, the language must not be abusive or insulting to the state to which the complaint is issued against, and all domestic remedies must have been exhausted. A Working Group of five members examines the communications and decides whether they appear to reveal ‘a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms’. The UN Secretariat constructs a summary of all the complaints received, and forwards a copy of each complaint to the governments concerned, who are requested to respond. Once a response has been received, one of the following actions may be taken: discontinue the consideration of the matter; keep the situation under review with the possibility of appointing an independent expert; or, the most serious outcome – take up the matter under public procedure, where by its very nature the issue and the procedure are no longer confidential.

Whilst the procedures are still in existence today, the method of operation under the Commission formed one of the major contributors to the body’s demise. One of the major criticisms of the 1503 procedure was that the nature of its operation was shrouded in secrecy, leading to accusations of it being used in concealing the occurrence of widescale human rights violations, rather than protecting and promoting it.¹³ From 1978 to 1985, 29 countries were considered under this procedure. During this period, whilst some states such as South Korea and Iran were considered, others requiring similar attention, such as North Korea and some Arab countries received no consideration.¹⁴

The lack of response to gross human rights violations was similarly made against the 1235 procedure. In particular for its lack of action between the years of 1976 and 1977, where the Commission notably failed to publicly respond to violations under several regimes, inc...