OHCHR on UPR: Speak up and die
Yesterday, civil society organizations hurried up to meet the deadline for submission of the Stakeholders reports under the Universal Periodic Review (UPR) of the Human Rights Council. For those not following the United Nations Human Rights Council, it provides for Universal Periodic Review of the States for assessing “each State of its human rights obligations and commitments”. The UPR intended to address the problems of selectivity and politicization that failed its predecessor, Commission on Human Rights. The review will be conducted based on three documents: (i) 20 pages submission by the State, (ii) a 10 page compilation prepared by the Office of the High Commissioner for Human Rights (OHCHR) of the information contained in the reports of treaty bodies, special procedures, including observations and comments by the State concerned, and other relevant official United Nations documents and (iii) 10 page additional, credible and reliable information provided by other relevant stakeholders inter alia, NGOs, NHRIs, Human rights defenders, Academic institutions and Research institutes, Regional organizations, as well as civil society representatives. In September 2007, the Human Rights Council selected a set of countries to be reviewed in April 2008 and the civil society organizations were asked to make submissions by 20 November 2007.
Years back, I came across a poster being held by a protestor at the height of the extrajudicial killings and massacres in Algeria that read, “If you speak up, you die. If you do not speak up, you still die. Speak up and die”.
The OHCHR does not face the do or die situation as was in Algeria. But preparing the stake-holders’ submission is unlikely to be an envy of anybody. The civil society groups shall be monitoring whether key human rights violations are reflected in the summary to be prepared by OHCHR. If not, OHCHR can expect to be put on the sword. If it does, the governments, especially those which have not ratified human rights treaties or do not submit periodic reports, might take out the sword then and there!
The Stakeholders’ submission and OHCHR’s summary might be the most critical aspects of the initial stages of the UPR.
Having been involved in the drafting of four stakeholders’ submissions respectively on Bahrain, India, Indonesia and Philippines with a number of organisations and leading “India National Consultation for Preparation of Stakeholders' Report under the Universal Periodic Review of the Human Rights Council” on 13-14 November 2007, I would like to share the following thoughts that OHCHR should take into consideration in the preparation of its own 10 page summary or the stakeholders’ summary:
I. Avoid duplication:
There are a number of countries which ratify Treaties and submit periodic reports. In fact, if periodic reports and shadow reports on the key human rights treaties are submitted, key human rights issues are already covered. The summary records and Concluding Observations cover the critical issues. OHCHR should ensure that there is no duplication of the issues/information in its own summary or the stakeholders’ report. It requires strong coordination and the ideal situation would be the same Human Rights Officers drafting OHCHR’s summary and stakeholders’ summary on a particular country to avoid repetition.
II. Stand by the hard truth on the human rights situation on the ground:
The first aim of the UPR is “the improvement of the human rights situation on the ground” which by definition requires a sound discussion on the prevailing human rights situation. No State shall report the truth about the prevailing human rights situation. It is only the civil society groups – not even the National Human Rights Institutions which have become extension of the governments – will report about the prevailing situation. While preparing the stakeholders summary, the OHCHR should focus on the patterns of human rights violations and accountability. Impunity should be the main focus.
III. Focus on implementation
The second objective of the UPR is “the fulfillment of the State's human rights obligations and commitments and assessment of positive developments and challenges faced by the State”.
The past periodic reports to the Treaty Bodies indicate that the governments love to quote progressive provisions from the constitutions and various national laws, policies, programmes. The challenges identified by the States are poverty, diversity and the fashionable things like the threat to national security and war against terror. It is unlikely that the States shall change their focus.
For the first time, NGOs had to submit stakeholders’ reports without any idea about the report of the concerned State. NGOs are usually used to preparing shadow reports after having studied the report of the State parties.
OHCHR should focus on two issues. First, it should focus on national obligations as to whether the State concerned ensures implementation of the rights enshrined in various national and international laws or not. To the extent possible and depending on the submission of the Stakeholders’, the focus should be on the implementation of the laws, policies and programmes. This will enable the State parties to highlight the shortcomings and the areas which require enhancement of capacities through technical cooperation projects/programmes.
Second, it should focus on whether the States are willing to take international obligations by ratifying international human rights instruments, bringing laws considering that international laws are not self-executing and bringing conformity with international obligations. Part of the international obligations will also include whether the recommendations of the Treaty Bodies are implemented or not.
IV. Encourage NGO inputs on enhancement of the State’s capacity
The third objective of the UPR is “the enhancement of the State's capacity and of technical assistance, in consultation with, and with the consent of, the State concerned”. This is an area which has seen little participation of NGOs in the development of the technical capacity programmes. There have been some involvements of the NGOs in the implementation. These are episodic depending on the predilections of the individual officers.
Obviously, technical cooperation, the favourite theme of the State with bad human rights records, is here to stay. The OHCHR should equally focus on the areas identified by the NGOs for technical cooperation. Most importantly, given that the technical cooperation is increasingly becoming a key area of OHCHR’s activities, guidelines should be developed to ensure participation of the civil society groups and focus on the vulnerable and marginalized groups. For example, it is only the National Human Rights Institutions, which are known as National Human Rights Commissions, which are the focus of the technical cooperation projects. But a large number of countries have established thematic National Institutions on women, Dalits, indigenous peoples, children etc.
V. Cooperation with the Council, other human rights bodies and OHCHR
Another objective of the UPR is the encouragement of full cooperation and engagement with the Council, other human rights bodies and OHCHR.
OHCHR is unlikely to make any commitments with the State parties. But, OHCHR can certainly bring out the level of cooperation with the UN bodies.
On Special Procedures, OHCHR must clearly spell out (i) whether standing invitations have been extended, (ii) whether any requests from Special Procedures for extending invitation have been rejected, (iii) the number of responses given by the State in comparison to number of interventions made by the Special Procedures, and (iv) the number of pending cases with Special Procedures such as the Working Group on Enforced Disappearances.
On Treaty Bodies, OHCHR should highlight (i) the delay, if any, in the submission of periodic reports; (ii) whether any treaty body issued warning to the Concerned State to consider implementation of a Treaty without the report of the State parties, (iii) whether any interventions have been made under the early warning procedures; and (iv) level of implementation of the recommendations of the Treaty Bodies where information is available.
At the end of the day, whether preparing its own summary or the stakeholders’ summary, OHCHR can certainly get away by properly attributing the sources. For it need not be a do or die situation but it must speak up for rights!