Human Rights Law Review 2007 7(1):109-139; doi:10.1093/hrlr/ngl040

© The Author [2007]. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org

A Voice Not an Echo: Universal Periodic Review and the UN Treaty Body System

Felice D. Gaer^*

*Director, Jacob Blaustein Institute for the Advancement of Human Rights and Member of the UN Committee against Torture since 2000 (Vice Chair 2004–6; Rapporteur 2006–).

	1. Introduction

Top 1. Introduction 2. Background: A New... 3. 'Peer Review' Versus... 4. Universal Periodic Review... 5. The Way Forward:...

A universal periodic review procedure (UPR) at the new Human Rights Council (Council) has been propounded as a means of restoring credibility, professionalism, universality and fair scrutiny of state performance in protecting and promoting human rights to the main political human rights body of the United Nations. But almost from the moment it was proposed, concerns have been raised not only over how the periodic review procedure could be structured to address these expectations but also whether it could avoid duplicating, or overturning, the work and recommendations of the seven functioning UN human rights treaty bodies. This article explores whether these concerns are warranted and whether the new procedure can bring added value and scrutiny to UN human rights programmes. It also offers suggestions for how the new procedure could address the Secretary-General's concern that the credibility of the Commission on Human Rights (Commission) was damaged because states sought to protect themselves from scrutiny on their human rights records.

	2. Background: A New Reform Plan

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The inclusion of human rights reforms in the broad set of UN reforms recommended in 2004 by the High-Level Panel on Threats, Challenges and Changes,¹ a team of senior diplomats and experts, whose suggestions were expanded and revised by Secretary-General Kofi Annan, who called for a new Human Rights Council to replace the 60-year old Commission,² reflected a sense of the heightened importance of human rights in the work of the United Nations and its relevance to the security challenges of the 21st century. It also articulated clearly that the principal political body working in human rights had severe problems, including ‘eroding credibility and professionalism’, according to the Panel,³ and ‘declining credibility and professionalism’, according to Annan, ‘which casts a shadow on the reputation of the United Nations system as a whole’.⁴

From the start, a complicating factor has been that member states have offered very different interpretations of what caused this ‘shadow’. Some blame ‘confrontation’ over resolutions condemning gross violations of human rights in specific countries, whilst others criticise an apparent willingness to stand silent in the face of such violations, or even to elevate the violators themselves to positions of honour in decision-making about compliance with human rights norms. For both groups, one potential way to bridge the claimed credibility gap was to establish a procedure to review all states, and thus ensure that the new Council would not allow powerful countries to escape any scrutiny by the foremost intergovernmental human rights body.

The new Council, Annan argued, ‘would accord human rights a more authoritative position, corresponding to the primacy of human rights in the Charter of the United Nations’.⁵ To address the politicisation complaint, and to fill lacunae in the UN human rights mechanisms, the Secretary-General proposed that the new body should have ‘a peer review function ... to evaluate the fulfilment by all states of all their human rights obligations’.⁶ Further, he suggested, ‘(u)nder such a system, every Member State could come up for review on a periodic basis’, maintaining that ‘(t)he peer review mechanism would complement not replace reporting procedures under human rights treaties’.⁷ Country scrutiny would continue to be conducted, but it would be member states as peers that would conduct the scrutiny. This proposal was viewed as the key to a genuinely reformed human rights system, since Annan's proposal specifically cited the fact that states sought membership on the Commission ‘not to strengthen human rights but to protect themselves against criticism or to criticize others’ as a key deficiency of that body.⁸

With a summit of world leaders planned for September 2005 to commemorate the 60th anniversary of the United Nations clearly in mind, member states entered into deliberations on these reform proposals in May 2005. The first pronouncement, a draft released by the President of the General Assembly, dated 3 June 2005, stated simply that ‘(t)he Council shall have the ability to periodically review the fulfilment of all human rights obligations of all Member States’.⁹ The homonyms ‘periodic review’ and ‘peer review’ would thereafter be altered and used interchangeably, with little agreement on anything more than the fact that every state should (somehow) be reviewed as a way of defusing the charges of politicisation and/or of singling out of countries that were gross abusers of human rights.

By late July 2005, the draft reform document would task the Council to ‘evaluate the fulfilment by all States of all their human rights obligations ... This procedure will not duplicate the reporting procedures carried out under the human rights treaties’.¹⁰ Neither peer nor periodic review was cited by name. But by 10 August 2005, the General Assembly President's next draft called for the new Council to ‘periodically review’ all human rights obligations of all states and reiterated again that this would not duplicate reporting procedures under the treaties.¹¹ A month later, the new President of the General Assembly, Jan Eliasson of Sweden, issued a draft that would slightly alter the new Council's proposed objective: to periodically review ‘compliance’ (rather than fulfilment) by all states with ‘all their human rights commitments and obligations’, whilst reference was again made to the non-duplication of treaty reporting procedures.¹² The change from ‘fulfilment’ to ‘compliance’ was a significant difference and even downgrading of expectations. Compliance by states with procedural obligations or with the requirement to protect rights is one thing, but ‘fulfilment’ of obligations is a term used to signal that states must take steps to ensure in practice that people enjoy their rights.¹³

The final World Summit Outcome document, affirmed by world leaders (without a vote) on 15 September 2005, resolved to create a Human Rights Council, but was curiously silent on peer and/or periodic review and other particulars.¹⁴ All details about the new body–its mandate, functions, membership, etc.–were left to so-called transparent negotiations in the General Assembly and, on 15 March 2006, Resolution 60/251 was adopted which established the new Human Rights Council and directed it to ‘undertake a universal periodic review’ procedure that ‘shall complement and not duplicate the work of the treaty bodies’.¹⁵ There was no further mention of the concept of ‘peer review’.

Huge differences remained as to whether the review should be intensive and result-oriented, adding focus, coherence and a set of authoritative recommendations to the outcomes of the many other UN human rights procedures, or end up as just a formal procedure that gave the appearance of considering all countries but offered no outcome, recommendations or follow-up.

	3. ‘Peer Review’ Versus ‘Periodic Review’

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Secretary-General Annan initially mixed together the concepts of ‘peer review’ and ‘periodic review’, proposing both in his Explanatory note on the creation the Council,¹⁶ which offered a very broad concept of what this new procedure should cover: an evaluation of fulfilment of all human rights for all persons.¹⁷

A. Peer Review

Several peer review processes have been developed in UN specialised agencies and regional bodies, and some states are already familiar with them. They usually have three phases: a preparatory phase, a consultation phase and a reporting/assessment phase. Normally, peer review processes in multinational bodies such as the Organisation for Economic Co-operation and Development (OECD) and International Labour Organisation (ILO) function as non-adversarial proceedings, and they are most successful, according to those who conduct these procedures, when they are based on a high degree of trust between the experts conducting the review and those being scrutinised.¹⁸ Such processes address a limited number of measurable norms, laws or quantitative benchmarks, and are conducted by peers, or experts appointed by peers, who are both competent and independent.¹⁹ In the case of the Council, a political intergovernmental body, peers would be representatives of member states, rather than independent experts. In this regard, the early proposals for peer review did offer this difference from the human rights treaty bodies, whose members are nominated and elected by states parties to the respective treaties, but who are supposed to be independent experts.²⁰

Kofi Annan's initial statement regarding peer review, presented in his Explanatory note, was an obviously maximalist articulation of a process that would, if carried through, remake and restructure all that was imprecise and incomplete in UN scrutiny and coverage of human rights performance by countries. It was a grand vision for pulling together all the findings of the numerous UN treaty bodies, special procedures and other mechanisms created in the past 10 to 30 years or so to implement, with a country-specific focus, the human rights norms the United Nations has drafted and adopted. Louise Arbour, the High Commissioner for Human Rights, seemed to be a highly supportive advocate of the peer review mechanism being proposed. Indeed, she stated as much in public. At a meeting of the Commission in Geneva in June 2005, the High Commissioner announced that her Office (the OHCHR) had already drawn up a plan of action that included the ‘exercise of universal scrutiny of the implementation by all Member States of all their human rights obligations through a peer-review mechanism based upon fair, transparent and non-selective procedures’.²¹

Two ‘non-papers’ containing written proposals entitled ‘Peer Review’ were circulated throughout the diplomatic community by the delegation of Canada during the spring and summer of 2005, while these concepts were being negotiated. Canada's first non-paper, dated 29 April 2005, noted that whilst there are various forms of scrutiny, including those by human rights treaty bodies and the special procedures, ‘there is currently not one common mechanism which is used systematically and applies in a similar manner to all states’.²² It was argued that the objective of any new peer review mechanism would be not as an enforcement mechanism, but rather to complement existing mechanisms to enhance the transparency and accountability of states in national implementation of human rights. This article offered two approaches to peer review: Model A: the Comprehensive Approach and Model B: the Interactive Dialogue.

The Comprehensive Approach was based on some of the features of the peer review mechanisms developed by the OECD, ILO, World Trade Organisation and the African Peer Review Mechanism, and was loosely built around the idea of compiling a comprehensive report on the situation in the state concerned as well as recommendations, a formal open hearing to discuss and comment upon the report and finally publication of conclusions and recommendations. However, it was noted that there would be ‘potential for significant overlap with the work of treaty bodies and other mechanisms’ and the procedure could be considered ‘so cumbersome that it becomes difficult to launch’.²³

The Interactive Dialogue was centred around a three-hour session of dialogue. Prior to the dialogue session it was proposed that the state would publish a statement on its national human rights situation, the OHCHR could make all relevant treaty body reports and information from other procedures available and other interested parties could issue their own statements. During the session the state concerned could present its statement, whilst other states could comment on the statement and question the state delegation. After the session, a rapporteur would publish a summary of the dialogue and the state would have an opportunity to outline its reactions within six months of the dialogue session. In contrast to the Comprehensive Approach, this was a simple procedure that would allow for every state to be reviewed within three years (due to its brevity) and it provided ‘incentives, through peer advice and public opinion, for states to improve their human rights performance’.²⁴ The only disadvantage foreseen by the Canadian paper to this approach was that it would not be as rigorous as the Comprehensive Approach.

When Canada re-issued its revised paper in July 2005, it offered only one approach, which was a combination of both the Comprehensive and Interactive Dialogue approaches.²⁵ In line with the Secretary-General's position, the paper repeated that peer review ‘should not replace or duplicate existing mechanisms, such as treaty bodies, special procedures, ...[it] should complement these other mechanisms’.²⁶ To avoid duplication, the paper argued, peer review should focus on implementation, build on existing information rather than require extensive new information, engage states in interactive dialogue, occur at ‘regular and reasonably short intervals’ and be mandatory for all states. The July 2005 paper proposed a six step process of review, beginning with a dossier compiled by the OHCHR of all available information on the state, to which the state under review would submit a response. Then a 12-member committee, formally consisting of ‘peer states’ but actually consisting of experts appointed by the ‘peer states’, would engage in a three-hour interactive dialogue with the state that would consist of a presentation by the state concerned, questions and comments by committee members and a response by the state. A rapporteur's summary of the dialogue would be submitted to the committee and the state concerned, to which the state would be invited to respond. To conclude, the committee would submit the rapporteur's summary and any response from the state to the full Council.

Though not stated in its written proposal, the Canadians clearly hoped this procedure could help move the culture of human rights within the United Nations away from country specific resolutions, ‘politicisation’ and ‘naming and shaming’, towards ‘cooperation’, whilst maintaining a serious level of review of performance. This proposal, and others that emerged later, concentrated on exploring ways of moving away from the so-called ‘confrontational’ country resolutions, whereby states voted against each other, and towards a system that would put more of the decisions about human rights scrutiny into the hands of independent experts and the Secretariat staff of the OHCHR. The experts, nominated by states, or perhaps representing them, would, according to these proposals, move the United Nations into a ‘post-resolution’ era of human rights scrutiny.

Canada's proposals had matured as a result of participation in a series of very small private consultations on UPR organised by Amnesty International with representatives of Mexico, Switzerland and Canada as well as staff of the OHCHR. During these consultations,²⁷ ideas were vetted that later were proposed at seminars in Lausanne organised by the Swiss government.²⁸ It was at these small consultations that many quite different options were thoroughly discussed, with a focus on how to make the new procedure one that truly added value to all the other human rights mechanisms, in part by first trying to bring a certain coherence and rationality to the informational basis of the review by analysing the often different, sometimes complementary, findings of the myriad mechanisms serviced by the OHCHR. The other problematic factor was how to engage the state that would be under UPR scrutiny. Switzerland initially came to the Amnesty consultations supporting an option consisting of a 2 hour ‘light dialogue’ with the country concerned, and Mexico initially proposed an extremely detailed review based on extensive data and analysis resulting in a negotiated recommendation on each state requiring a consensus outcome. These proposals, like Canada's, underwent substantial reformulation. At the Lausanne seminar(s), academics invited by Switzerland offered alternative proposals which Switzerland later submitted for consultation by the UPR working group.²⁹

A consensus emerged to establish an open-ended working group to consider and develop the modalities of UPR. Subsequently, the Council decided to create such a working group,³⁰ which held a number of intergovernmental informal consultations over the following months³¹ in which government representatives explored these proposals and others.³² Canada's peer review ideas, including preparation of a dossier, creation of a sub-committee to review countries, and the many opportunities for the responses of the country concerned, were discussed thoroughly during these sessions along with other ideas set forth by other countries. Later, in November 2006, the Open-Ended Working Group would hold formal meetings.

B. Periodic Review

The concept of ‘periodic review’ is well known in the UN human rights system, both in connection with a toothless system that was abandoned and in connection with the treaty body reporting requirements, which have grown and developed in ways unforeseen by the drafters.

(i) Charter-based periodic reports
When UN officials talk of establishing a programme of periodic reports, observers routinely recall the ineffectual reports that preceded the establishment of the special rapporteurs and working groups. Although human rights was cited as a purpose of the United Nations in its 1945 Charter and joint and separate action to promote them was specifically cited therein,³³ in the early years, human rights bodies did not formally scrutinise the compliance of countries with international human rights norms. A system of country self-reporting on human rights was introduced in 1956,³⁴ but these reports were abandoned after 1977, not long after the Secretary-General described them as ‘obsolete, ineffective or of marginal usefulness’.³⁵ States were originally asked to transmit every three years a report describing progress achieved in the field of human rights. Revised in 1965, the reporting system requested that information be submitted in a continuing cycle in which civil and political rights were reported on in year one, economic social and cultural rights in year two and freedom of information in year three.³⁶ A committee of member states was supposed to review the reports; but the Commission postponed consideration of these reports at its 1977 session and thereafter. The General Assembly formally terminated the procedure in 1980 (just as the Commission's other special procedures were about to get under way).³⁷

(ii) Periodic reports to treaty bodies
Submission of periodic reports to the human rights treaty bodies has had a better outcome. This is the most familiar obligation of states parties related to the UN human rights treaties. The first human rights treaty with reporting requirements was the International Convention on the Elimination of all Forms of Racial Discrimination 1965 (ICERD),³⁸ followed shortly by the two international covenants (the International Covenant on Civil and Political Rights 1966 (ICCPR)³⁹ and the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR)⁴⁰) and by others later.

Each human rights treaty first received formal approval in the General Assembly and their treaty bodies⁴¹ were established after each treaty came into force following a series of formal ratifications or accessions to the treaty by states parties. Each annual meeting of states parties to a particular treaty elects the members of the relevant treaty body that examines compliance with its provisions. The treaty bodies are serviced by the UN Secretariat; and they report to the General Assembly. While the General Assembly does not have the authority to change either the treaty or, for that matter, the procedures used by the treaty body, it endorses the finances, meeting time and amount of Secretariat staff provided to each of the treaty bodies. The power to amend the treaty resides in the states parties. Each treaty body has made its own rules of procedure governing its examination of state party reports and other responsibilities.

The ‘work’ of the treaty bodies includes the following five activities:

1. Examining reports by the state party on implementation of the norms in the treaty. The reports are assessed through examination, dialogue, and issuance of written conclusions and recommendations;
   
2. Reviewing individual complaints regarding alleged violations of the norms in the treaty and adoption of views by the relevant treaty body on the individual petitions received;⁴²
   
3. Considering inter-state complaints;⁴³
   
4. Inquiring directly on-site into patterns of violations of the norms in the treaty. Here, the treaty supervisory body initiates an inquiry, conducts an on-site visit with fact-finding and adopts conclusions and recommendations that become, in some measure, public thereafter; and ⁴⁴
   
5. Preparing and approving general recommendations or comments on their work to guide states in future reporting.⁴⁵
   

Thus, in addition to reviewing reports submitted by states parties, most treaty bodies examine and adopt views on a large number of individual complaints; some annually conduct on-site inquiries into patterns of violations in countries; and all have prepared general comments not as conclusions to specific reports, but as their overall interpretations of the specific provisions of the conventions which, together with other committee statements, present advice on the meaning of the treaty to a multilateral audience.

Focussing on the role of the treaty bodies in examining state reports, today each of the seven principal human rights treaty bodies scrutinises periodic reports submitted by states parties in accord with the terms of the relevant treaty. More than this, the treaty bodies also make extensive recommendations following their reviews of the facts and analysis presented by the states parties in their reports and ‘constructive’ dialogues. Every member state of the United Nations is party to at least one of these seven treaties, so all have experience with the obligatory reporting procedures.

Under each of the seven principal human rights treaties, the reporting obligations of states parties are generally similar. Each treaty requires states parties to undertake to submit a report on the measures adopted by states to give effect to the rights recognised therein.⁴⁶ The reports prepared by states parties are submitted to the Secretary-General of the United Nations for ‘consideration’ or ‘study’ by the relevant treaty body. Each treaty body may offer its views following consideration of the reports⁴⁷ and, in turn, the state may comment on these views.

The treaties require that the reports of state parties address the measures that have been adopted to give effect to the provisions/undertakings in the relevant treaty or to the enjoyment/observance of the rights expressed therein.⁴⁸ Under the ICCPR, the ICESCR, CEDAW and the CRC, the state report should also assess the ‘progress made’ towards achieving the observance or enjoyment of the rights within those treaties. Alone among the treaties, the CRC instructs state parties that their reports must be of a certain quality, such that they ‘shall also contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the country concerned’.⁴⁹ Three of the seven UN human rights treaties instruct states parties that their reports ‘shall’ indicate factors and difficulties affecting the implementation or fulfilment of obligations of each treaty and two others state they ‘may’ indicate such factors (only CAT and ICERD make no reference to factors and difficulties⁵⁰). State party reports are due periodically and the periodicity of reporting ranges from every two years for ICERD to every five years for the CRC.

Whilst the OHCHR Secretariat has reported that ‘all treaty bodies have adopted broadly the same approach [to the consideration of state party reports], including ‘constructive’ dialogue with the representative(s) of the State party and the adoption of concluding observations’,⁵¹ each treaty body has developed its own format for the interactive dialogue with representatives of the states parties that takes place as part of the review of the state reports.⁵² One common factor is the presence at treaty body meetings of a governmental representative of the state whose report is being examined. I have described elsewhere how the experience of Pakistan at CERD, following the Bangladesh war of independence, led to the first consideration of a country's report with a representative of the government present.⁵³ The presence of a governmental representative concerned some experts who thought it would stifle the thorough examination of each state's report. However, this has evolved into a de facto required procedure that is unparalleled anywhere else in the UN system. In no other human rights procedure (other than the confidential ‘1503’ procedure of the Commission) is a representative of the state concerned required to be present for an interactive dialogue and discussion on compliance with its human rights obligations. This procedure is not specified in the treaties themselves, but began in 1972 in CERD and has developed over time, becoming an expected practice, affirmed in the rules of procedure adopted by the treaty bodies themselves.⁵⁴ It is this procedure that would be the most clearly duplicated by the proposed UPR at the Council.

A further feature of the consideration of state reports is the use of ‘core documents’. Whilst each of the treaty bodies has adopted specific guidelines for the form and content of the reports submitted to it,⁵⁵ since 1991, the so-called ‘core documents’ have been provided by states on a voluntary basis to present information that cross-cuts the various treaties, such as general information on a country's land and people, its political and legal systems and its human rights machinery.⁵⁶ In 2006, new harmonised guidelines for reporting were agreed, which require states parties to prepare expanded core documents as an obligatory first part of any report to a treaty body with successive sections of the reports being specific to the treaty that they concern.⁵⁷ The expanded core document should include information concerning the demographic, economic, social and cultural characteristics of the state; its constitutional, political and legal structure; its acceptance of international human rights norms; its legal framework for the protection of human rights at the national level; its reporting process at the national level including follow-up to concluding observations of human rights treaty bodies; as well as information concerning non-discrimination and equality and effective remedies.

	4. Universal Periodic Review and the Work of the Treaty Bodies

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As noted earlier, Resolution 60/251 directed the new Council to ‘undertake a universal periodic review’ procedure that ‘shall complement and not duplicate the work of the treaty bodies’. This formulation differed from that used during most of the earlier negotiations: it was clearly stated earlier that the new mechanism should not interfere with the system of reporting to treaty bodies. Resolution 60/251 does not offer guidance on what procedure or mechanism would in fact complement the treaty bodies, but does instruct that the procedure should meet certain criteria. Specifically, it should be a procedure that is:

based on objective and reliable information, of the fulfillment by each State of its human rights obligations and commitments in a manner that ensures universality of coverage and equal treatment with respect to all states; the review shall be a cooperative mechanism, based on interactive dialogue, with the full involvement of the State concerned and with consideration given to its capacity-building needs.⁵⁸

It seems clear from the negotiating history as well as the comments of member states that the instruction in Resolution 60/251 to ‘complement’ the work of the treaty bodies referred primarily to non-duplication of treaty body review of regular periodic reports submitted by the states parties, and not to the other activities undertaken by the treaty bodies.⁵⁹ However, the door is left open to ensure that the new intergovernmental system in the Council does not fully duplicate or replace the work of the independent experts in the treaty bodies.

In the numerous meetings and working group sessions convened by Council members on UPR,⁶⁰ interpretations of what is meant by the requirement in Resolution 60/251 that it should ‘complement and not duplicate’ the work of the treaty bodies has centred on the elements cited in the Resolution: (i) the information utilised and the human rights obligations and commitments each state must ‘fulfil’; (ii) how to ensure universality of coverage and equal treatment of all states; (iii) what a ‘cooperative mechanism’ would actually look like; and (iv) how to ensure that a state's capacity-building needs are taken into account.

A. Finding and Using ‘Objective and Reliable’ Information

Much of the discussion about UPR has centred on what information will serve as a basis for the procedure and, in particular, whether there is to be a requirement for submission of a country report as the trigger for the examination. A related part of this, encompassing the ‘involvement of the state party’, has focussed on whether reviewers should be ‘peers’, that is, representatives of states, or independent experts. Closely related to this has been the question of whether the UPR examination process takes place in a plenary Council session or not, with adequate opportunity for the state under review to respond. These issues are linked, in turn, to the matter of the preferred outcome of the process, and whether there will be any formal report or recommendations, or specific follow-up.

In discussing information sources for UPR, a number of states have declared that they do not see the need for preparation of a new report by member states. Algeria, speaking on behalf of the African Group of States, declared that no reporting obligations should be required for the new process, emphasising the need to avoid any further ‘undue reporting burdens’.⁶¹ Similarly, the Netherlands pointed to ‘the already heavy workload for states following from their treaty body monitoring obligations’.⁶² Australia claimed that a separate report ‘would duplicate the reporting processes required under the treaty bodies and is unnecessary’.⁶³ Sri Lanka suggested that the core report prepared by states for their review by treaty bodies be used, as it ‘would avoid OHCHR having to prepare new country dossiers or even a global report as has been suggested by some delegations specifically for the periodic review’.⁶⁴

Numerous states suggested that either a dossier or questionnaire should be prepared to trigger the review. Some specifically referenced other international peer review procedures, such as the WTO or OECD, which use questionnaires in peer review procedures. Among those explicitly favouring a questionnaire were Brazil, the Philippines, India (which referred to ‘a standard set of questions’) and Japan.⁶⁵ Others, like Mexico and Argentina, suggested that the UPR be triggered with a somewhat more elaborate document: a dossier containing information from all available and reliable sources: the state itself, treaty bodies, the special procedures, national human rights institutions, non-governmental organisations (NGOs) etc.⁶⁶ Either the UN Secretariat, in the form of the OHCHR, or a new UPR sub-committee of independent experts (or of state representatives) were deemed appropriate to prepare such a dossier from existing information sources. The United States suggested that a Peer Review Working Group circulate

a short factual questionnaire for each country, regarding, inter alia, the human rights treaties to which it is a party and other measures it is taking relating to human rights (e.g. Universal Declaration of Human Rights) ... .Based on the questionnaire and other information, including information that will be actively solicited from UN treaty bodies and NGOs by the PRWG [Peer Review Working Group], there would be two annual intersessional meetings of the PRWG of two weeks each.⁶⁷

These proposals, while differing in detail, share a common rejection of any further self-reporting by states as a way of starting this procedure and thus would reject any further ‘burden’ like that entailed by the system of reporting common to the treaty bodies. At the same time they also would reject the requirement of other UN human rights procedures that a communication or complaint from a state or an alleged victim is required to initiate the procedure. By adopting a dossier or questionnaire as the way to obtain information for the universal periodic review, UPR would complement the other procedures (such as, the 1503 procedure, optional protocol communications, and inter-state complaints).

Many NGOs and experts have also suggested that a questionnaire, or list of issues, might be the best trigger for the UPR procedure in the Council.⁶⁸ Many peer review procedures, such as that at the OECD, in fact begin with the preparation of a questionnaire. States have to respond to and complete the questionnaire, which thus functions in a manner analogous to the ‘list of issues’ which is now utilised by all of the treaty bodies in their review of some of the periodic reports. States parties to the human rights treaties have indicated a preference for such lists of issues in their own appearances before the treaty bodies.⁶⁹

Not surprisingly, academic and NGO proposals tend to be expansive in suggesting that all available information sources on human rights could be brought together.⁷⁰ Such sources could include information obtained by UN human rights field presences, national human rights institutions and civil society, as well as that obtained in the course of the human rights treaties state reporting system and the operation of the special procedures system developed by the Commission.⁷¹ Implicit in their recommendations is the idea that this document could produce a comprehensive analysis of the status of human rights in each country and not merely a compilation of all available evidence and commentary.

However, as the International Commission of Jurists has pointed out, there are potential pitfalls in utilising the information from expert treaty bodies in the intergovernmental peer review procedure. In particular,

The UPR should ... not be an opportunity to reopen concluding observations and decisions on countries made by treaty bodies. However, such country concluding observations and decisions should play an important role in informing the process of assessing a country situation and the extent to which the state has fulfilled its human rights obligations and commitments.⁷²

The concern that the treaty conclusions would be re-evaluated and re-prioritised or even passed over by an intergovernmental UPR process was echoed by the European Union: ‘A factor in the review will be the same rights and obligations as those the treaty bodies examine. In order to ensure that the mechanism does not duplicate the work of the treaty bodies, it is important that it does not conduct a second substantive assessment of compliance with treaty obligations’.⁷³

While the range of informational inputs can indeed be extensive, little discussion has gone into the question of whether it is feasible or desirable to examine every country on every potential issue, especially in a procedure that will recur every three or four years. Some observers obviously view the UPR as a possible way to reconstruct and strengthen the entire body of UN human rights mechanisms and to demand both compliance with procedural obligations and fulfilment of all treaty norms and other human rights commitments made. Others look to the new procedure as a way to avoid country scrutiny and any probing into areas where performance may be below par. Determining how to provide objective and reliable information in a way that does not duplicate or weaken the conclusions of other procedures has thus become the core issue regarding the debate on UPR thus far. Little attention has focussed on the feasibility or resource requirements for a comprehensive expert analysis—and not a mere compilation of conclusions and recommendations from treaty bodies or special procedures—of all human rights for all countries as the basis of the UPR.

B. Universal Coverage of All States on All Norms

Human rights treaty bodies do not ensure the ‘universality of coverage’ requested in Resolution 60/251; instead, they examine only those states that ratify a specific treaty. Thus if the UPR procedure addresses issues covered in human rights instruments not ratified by states, it would not duplicate treaty body activity. Treaty ratifications vary considerably both in number, with 192 states parties to the CRC, 141 to CAT and only 34 to the CMW, and, in regional coverage. For example, a large number of states from Asia are not parties to CAT.

On 18 August 2006, Finland, speaking on behalf of EU states, proposed a form of complementarity between the treaty bodies and UPR: ‘For those states that have not ratified treaties, the [UPR] mechanism will provide a forum for discussing human rights compliance on the basis of the information from different sources, compiled by the OHCHR’.⁷⁴

Yet, in the debates and proposals raised in the Council plenary sessions and its working group on this matter, quite a number of states argued that the UPR should not examine states on the treaties they have not ratified. For example, Algeria, speaking on behalf of the African Group of States, asserted that under the proposed UPR ‘[n]o State can be held accountable for obligations pertaining to a treaty that they have not ratified’.⁷⁵ In a statement made in July 2006, Singapore spelled out more precisely why it interprets the language in Resolution 60/251 as limited:

... OP5e spells out clearly that the review would focus on each State's human rights obligations and commitments. To my delegation, this clearly precludes judging States against treaties and conventions that they have not ratified, since they are neither obligated to fulfil them nor have made a commitment to do so. In fact, it would be unwise for the UPR to focus on specific treaty obligations as this would necessarily duplicate the work of the treaty bodies. Instead, the review should examine broader obligations under the Universal Declaration of Human Rights as well as commitments made by individual States, such as the voluntary pledges made while seeking membership in the [Council].⁷⁶

Countries as diverse as Australia,⁷⁷ the United States⁷⁸ and Iran⁷⁹ proposed that in addition to the specific treaties a state has ratified, the UPR should also examine a state's compliance with the Universal Declaration of Human Rights.⁸⁰ Others suggested including the voluntary commitments member states have made, for example, in the context of running for election to the Council,⁸¹ thus reinforcing the same normative sources for the UPR as proposed by Kofi Annan in his April 2005 Explanatory Note on the creation of the Council. There is an obvious irony in these proposals: states that argue against being scrutinised in UPR regarding human rights standards in treaties they have not ratified are nonetheless willing to be examined on the full range of issues in the Universal Declaration on Human Rights—norms that may overlap and in some cases be broader in application than those articulated, with limitations, in the two international Covenants and specific treaties that followed them.

C. Equal Treatment of All States in Human Rights Assessments

The human rights treaty bodies are often cited positively by governments for the common manner in which states are treated. Resolution 60/251 mandates ‘equal treatment with respect to all states’ by the UPR mechanism.⁸² As a procedural matter, there is a large degree of congruence between the treaty bodies in the treatment of states parties presenting reports. Yet, there is also a great divergence when it comes to the substantive evaluation of whether a state actually meets its human rights obligations under a given treaty. In fact, the review of each state's performance by treaty bodies differs according to:

1. the information in the state report;
   
2. other information, legal and practical, available to the experts on the treaty body;
   
3. the areas being probed for compliance; i.e. questions posed by treaty body committee members depend in significant part upon the information from sources other than the state which are available to the expert members;
   
4. the issues identified as subjects of concern where the treaty's norms are not met; and
   
5. the concluding recommendations adopted setting forth what should be done to improve a state's compliance with its treaty obligations.
   

Each review does not always examine or give equal weight to the same indicators of compliance, because the treaty bodies, particularly those examining civil and political rights, have not yet determined a clear-cut set of indicators of such compliance. Information availability is often a factor here. Treaty body members will not ask about topics that they do not know about, and if there is no across-the-board independent fact-finding on specific topics, their questions will instead reflect the information provided either in the state report, materials from other UN bodies or other reliable sources and documentation and argumentation submitted by national or international NGOs. These facts highlight the need for independent objective sources of information and fact-finding in the treaty compliance assessment process.

The concluding observations or assessment of state performance, following a treaty body's review of state party periodic reports, also merit further attention. In the initial period after the treaty bodies began to function (1969–1990), the treaty bodies examined state implementation of the provisions in the treaties, asked diverse questions of the reporting states, and concluded each review without any specific comments. But beginning in 1990, the CESCR began to formulate concluding observations at the end of the review of a country's periodic report.⁸³ The practice, instituted as the Cold War was coming to an end, caught on. Today, every treaty body adopts conclusions following the review of state reports. Concluding comments address positive developments in the state, identify issues of concern and offer recommendations for correction of problematic laws and practices. The specific substantive assessments vary considerably, as indicated earlier, and also depending on the report submitted, the questions asked and answered by representatives of the state party under review, the member(s) of the treaty body assigned as lead examiners, and the treaty under which the state is being examined. According to the OHCHR, concluding observations range in size from 6 pages (HRC) to 16 pages (CRC Committee) in length, depending on the treaty body.

Furthermore, there are also in fact differences in the procedural demands made of states parties: several treaty bodies have developed a ‘flexible’ practice–that is to say, differential treatment of states parties—on the matter of periodicity as to when a report from a state party is due. Although most of the treaties specify a fixed time period for submission of reports, the de facto backlog in submitting and examining state reports has led several treaty bodies to consolidate reports, whereby a single report is said to constitute submission of several reports (enabling a state to catch up on its overdue reports). In other instances, states are told when the next report is due, and the length of time set may also vary. Demands for additional information to be submitted to the treaty body may also fluctuate.⁸⁴

D. A ‘Cooperative Mechanism’ (Based on Interactive Dialogue, With Full Involvement of the State Concerned)

Resolution 60/251 stipulates that, in addition to being universal and not duplicating the work of the treaty bodies, the new periodic review ‘shall be a cooperative mechanism, based on interactive dialogue, with the full involvement of the State concerned and with consideration given to its capacity-building needs’.⁸⁵ What comprises a ‘cooperative mechanism’ was undefined, but, in context, it seems to mean that decisions, if any, would be reached only with the voluntary participation of the state under review.

Cooperation itself is highly valued within the UN system. One of the purposes of the United Nations cited in its Charter is ‘to achieve cooperation in solving international problems ... and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion ... ’.⁸⁶ In recent years, a number of countries have agreed to voluntarily extend cooperation to the special procedures of the Commission by agreeing to issue a standing invitation to any and all of them who wish to visit their country. The High Commissioner for Human Rights has endorsed such standing invitations and a list of countries that has extended such cooperation is published on the High Commissioner's website.⁸⁷ Notably, the Commission for nearly a decade has adopted resolutions regarding ‘cooperation’ with the special procedures, in which it has called for a moratorium on reprisals against persons who cooperate with UN human rights representatives or present testimony or information to them.⁸⁸

Cooperation by state officials is of course key to the treaty body reporting process, but there is also compulsory compliance with the obligations voluntarily adopted by states that ratify the relevant treaties. Since the human rights treaty bodies began to permit representatives of states to attend the review of state reports, officials participate in person to comply with both the reporting requirements of the treaty and the guidelines adopted by each specific treaty body. Each treaty committee invites the state party to send a delegation to attend the meetings at which the committee will consider the state party's report. The head of the delegation is invited to introduce the report in an opening statement, and members of the committee raise questions on specific aspects of the report. Through this ‘constructive dialogue’ the treaty bodies are able to ascertain required information to assess compliance and offer advice to the state party of ways to improve implementation of the relevant treaty's requirements.⁸⁹ The submission of state reports demonstrates recognition by states parties that the obligation to submit periodic reports is a compulsory obligation under the treaties. Participation by high-level officials results from cooperation, but the reporting process and the implementation and adoption of measures to give effect to the norms of the treaty are clearly part of the compliance process, as defined in each treaty body's rules of procedure. Several committees have now adopted follow-up procedures through which they request the state party to provide additional information on how the recommendations of the committee are being implemented. Again, states parties comply with these procedures through cooperation. The two concepts are intertwined in the treaty bodies.

In the intergovernmental Commission, however, the word ‘cooperation’ took on considerable political meaning. The term was often raised as the preferred alternative means of engaging in country scrutiny—on a voluntary basis, and only with the consent of the state concerned—in contrast to the ‘confrontational’ operating style of the former Commission when approving country-specific resolutions by a vote of the member states. Country resolutions normally address specific situations, focus on specific named violations and on the state of the concerned country's institutions to advance human rights protection, and recommend specific reforms to ameliorate the human rights violations in question. A country resolution would usually appoint an investigator to study, travel to, and report back about a specific country and the status of any recommended changes. The state concerned would routinely be instructed to receive the investigator and adopt the changes demanded. It was expected that the country named would receive the appointed expert and permit in-country examination and evaluation. This is called ‘cooperation’. Whatever the actual conditions of human rights in a country, states expect others to ‘cooperate’ with the UN human rights procedures. Not all do. Some countries have denounced the process of adopting such resolutions as ‘confrontational’ and refused to cooperate with the appointed representatives or special procedures.

For years, this so-called ‘confrontational’ approach had been raised and condemned by countries often criticised for rights abuses, in simple speeches as well as formal efforts to reform the human rights machinery of the United Nations. As the UN human rights mechanisms gained strength in voicing concern about human rights abuses in countries, a strong backlash developed, particularly among those countries subjected to unwanted scrutiny. The argument for change was often phrased as a need to ‘rationalise’ the UN human rights machinery. To the uninitiated, this was just a managerial call to make things work better; to the states opposing human rights scrutiny, now calling themselves ‘the Like-Minded Group’, it became a decisive way to cut back and weaken the investigations and public denunciations of human rights violations by independent experts and special procedures created by the Commission.⁹⁰

The proposal for a UPR mechanism—described as non-adversarial as opposed to the usually highly contested country resolution—was thus perceived as a dramatic step towards changing the dynamic of the United Nation's main human rights body from ‘confrontational’ or ‘politicised’ to ‘cooperative’. Throughout the negotiations and at the inaugural session of the Council in June 2006, countries indicated that they expected that the new UPR would change and replace country resolutions. As such, two key issues with regard to the proposed UPR procedure are pertinent. First, will the requirement that the new procedure be ‘a cooperative mechanism’ severely curtail the delineation of rights problems (because the state concerned would have to agree that the concerns constitute abuses or at least problems)? Second, can UPR, in fact, bring about any voluntary changes by the state officials concerned to stop gross violations of human rights?

Many argue that what is needed to bring credibility to UN human rights bodies are stronger compliance mechanisms, i.e. ones that will require the country concerned to take action to correct the abuses. But such mechanisms do not exist in the human rights arena in the United Nations. The political bodies of the General Assembly lack the capacity to enforce the measures proposed. The Commission never had the enforcement powers of a court, rather it was a political body charged with gaining actions from states to improve human rights. While some have, perhaps, wished to create a system that functions like a human rights court, comprehensively addressing every country and pronouncing on its behaviour, and demanding remedies, that has not been the view of a large number of member states of the United Nations. Other states fear that this is the direction in which the special procedures have been moving, and in which those advocating the new UPR wish to see it move. Thus, speaking for the African Group of States, Algeria reminded member states that, ‘(t)he objective of this mechanism, therefore, is not to assume the functions of a tribunal’ and further, that ‘(i)t must avoid imposing obligations on States, for which provisions are already made, within the framework of Treaty Bodies’.⁹¹

Both these views could be heard at the inaugural session of the Council in June 2006. There was praise for the new UPR mechanism as ‘a significant value-added to the Council’;⁹² ‘an important innovation in dealing with country situations’;⁹³ ‘one of the most important and innovative features and mechanisms of the Council’ upon which the ‘success of the Council would therefore depend’;⁹⁴ and ‘an extraordinarily ambitious project ... [that] will greatly influence the credibility and future standing of the Human Rights Council’.⁹⁵ However, the potential for controversy on how country scrutiny would proceed was signalled in a speech by Ban Ki-Moon, Foreign Minister of the Republic of Korea, who would later be selected as the new Secretary-General of the United Nations. Ban called the UPR ‘a vital tool’, but also remarked that the new procedure ‘must do more than simply review and criticize. It must also help to build capacity in each member state’. He went on to emphasise the importance of a new ‘culture of cooperation’ and that ‘dialogue and cooperation’ must be the ‘dictate’ of the new Council.⁹⁶ Furthermore, many leaders, particularly of the Like Minded States, speaking at the first session of the Council, cited the UPR in the context of criticism of the former Commission. For example, China's Vice Minister of Foreign Affairs, Yang Jiechi, continued a long-standing Chinese line of argumentation that ‘confrontation’ had to yield to ‘cooperation’. Without explicitly referring to the numerous (unsuccessful) resolutions about China's human rights record in the years since Tiananmen Square that the United States and European Union members had introduced in the Commission, Mr Yang cautioned those present:

Political confrontation led to the credibility crisis of the Commission on Human Rights. The success of the Council will depend in large measure on whether countries ... can establish mutual trust, treat each other as equals, and address their differences in a constructive way. ... The proposed UPR should ensure that all countries, regardless of their sizes, are treated impartially and in a fair manner, [and that] all countries’ historical, cultural and religious backgrounds and differences are equally respected.⁹⁷

The Minister of Justice of Zimbabwe called for ‘a sober, balanced, and objective approach as opposed to the retributive style of the Commission’,⁹⁸ whilst Iran's Foreign Minister, Manouchehr Mottaki, spoke of a ‘new direction’, a ‘profound culture shift’, and stressed that ‘cooperation and dialogue is the only way for the genuine promotion and protection of human rights worldwide’.⁹⁹ Similarly, the Foreign Minister of Brazil criticised ‘singling out countries’ arguing that ‘[s]ix decades of Commission work have provided abundant examples of how counterproductive a purely confrontational strategy may prove’.¹⁰⁰ Striking a familiar complaint to portray human rights scrutiny at the Commission as power play that suppresses and humiliates developing countries, Cuba's Minister of Foreign Affairs declared opposition to efforts to ‘turn the Council into an exclusive tribunal against the underdeveloped countries and ensure the impunity of those in the north’ or to support the ‘country resolution to punish those that do not bow their head.’ He declared that the new UPR would not be ‘an instrument of new pressure and media campaigns.’¹⁰¹

The often coded meaning of the use of the term ‘cooperation’ was made even more explicit at the December discussion of UPR at the Council.¹⁰² As governments were proposing and debating the nature of the outcome of the UPR—and whether there should be a negotiated outcome approved by Council members by vote or by consensus of all members as well as by the state under review—Pakistan, speaking on behalf of the Organisation of the Islamic Conference (to which 18 members of the Council belong), reminded governments that ‘We have ... to ensure that this process remains a cooperative mechanism and does not become agenda item 9 of the Commission on Human Rights’.¹⁰³ He referred here to the agenda item under which the contentious country-specific resolutions were adopted at the Commission. Similarly, Iran's representative cautioned Council members to ‘avoid the experiences ... [that would] lead to confrontation, double standards, and politicization ... contrary to the cooperative nature of the UPR’.¹⁰⁴

This issue is clearly at the heart of the entire human rights reform effort: the scrutiny of country-specific human rights violations by the Commission that resulted in critical resolutions (normally under agenda item 9) singling out countries and the related appointment of special rapporteurs or independent experts to report regularly on conditions in the specific countries of concern was commonly criticised as ‘politicisation’. As noted earlier, Secretary-General Kofi Annan, in proposing to eliminate the Commission, remarked that states sought membership on the Commission ‘not to strengthen human rights but to protect themselves against criticism or to criticize others’.

Before his untimely death in Iraq, the late High Commissioner for Human Rights Sergio Viera de Mello identified the hypocrisy of accusing the Commission members of politicisation:

Let's be frank. Most of the people in this room work for governments. That is politics. For some people in this room to accuse others of being political is a bit like fish criticizing one another for being wet. The accusation hardly means anything anymore. It has become a way to express disapproval without saying what is really on your mind.¹⁰⁵

Now, rather clearly, many of the member states who came under country-specific scrutiny are saying what is on their mind: that establishing ‘universal’ review or any other human rights mechanism would be an acceptable mechanism to them only if it reversed the country specific criticism itself. In contrast, Annan's proposed solution was to try to change the dynamic of the body altogether, in a reform that—with UPR—could actually strengthen its ability to conduct country scrutiny. This issue is at the heart of the reform effort.

E. Considering Capacity When Assessing State Party Implementation of Treaty Norms

In principle, treaty bodies hold all states to the same standards: implementation of the norms of the convention being examined and thus do not, technically, offer ‘consideration to capacity building needs’ as a mitigating factor. Indeed, there is no clear-cut way in which the treaty bodies determine the difference between a country's lack of will to implement the norms of the convention as compared to its lack of capacity.

In practice, treaty body concluding comments often contain a section entitled ‘Factors and difficulties’ that identify items impeding the implementation of the treaty, as identified in the state party reports.¹⁰⁶ These ‘factors and difficulties’ can and do include a wide array of exculpatory factors, for example: the level of development, devaluation of currency, traditional practices, legacy of violence,¹⁰⁷ climate of violence, foreign debt, drought, terrorism,¹⁰⁸ institutional vacuum, absence of trained personnel, vastness of the country, lack of resources,¹⁰⁹ or political developments such as ‘process of reunification’.¹¹⁰ When noted in the concluding observations or comments by some of the treaty bodies, the implications of these factors for actual implementation typically is not examined further. Yet, the mere articulation of such factors can amount, de facto, to exculpatory arguments that countries actually lack the capacity to implement the obligations in the treaties concerned. Some treaty bodies have recognised that while states parties can include such lists, it is different and often in concluding comments is counterproductive to the effort to press states to meet their treaty obligations for the treaty body to acknowledge this in their concluding comments, are not permissible excuses for limitations on rights under the treaty provisions concerned, or as explanations for non-compliance. Both the HRC and CEDAW have thus abandoned the inclusion of ‘factors and difficulties’ in their concluding comments and recommendations. When the CAT Committee has identified such factors in concluding comments, it normally recalls specifically that Article 2 of CAT provides explicitly that ‘no exceptional circumstances’ justify torture.

Thus, while exculpatory factors and difficulties impeding implementation may well be known to states and experts alike, compliance with the norms specified in the treaty is demanded, subject to the permissible limitations provided therein, such as when states of emergency are formally declared. Treaty bodies have recommended long lists of actions that must be taken to bring the state party into compliance on various norms. Human rights treaties bodies have not viewed themselves as conducting ‘technical assistance’ projects to bring states into compliance, but they are known to point the way to the issues that such projects must address in order to promote compliance with the treaty norms.

Walter Kälin has suggested that because the UPR is specifically instructed in Resolution 60/251 to consider ‘capacity building needs’,¹¹¹ the outcome of a new UPR process has to include specific conclusions, including those that ‘point out ways to overcome a certain situation and to recommend ... technical assistance or advisory services’.¹¹² Whether consideration of capacity building needs in the UPR process will lead to constructive recommendations for technical assistance (sometimes called ‘technical cooperation’) or exculpatory explanations of non-compliance with the norms is yet another issue that remains to be worked out.

	5. The Way Forward: Focusing Country Scrutiny Through UPR

Top 1. Introduction 2. Background: A New... 3. 'Peer Review' Versus... 4. Universal Periodic Review... 5. The Way Forward:...

 
Expectations have been high that the UPR cannot only restore professionalism and fair scrutiny of country performance to the main political human rights body of the United Nations, but also that it may enhance the credibility of the United Nations in the human rights field. These expectations have been based on two considerations: first, that there would be a real value added—as a result of the fact that the review would cover all states and that it would complement, not duplicate the work of the treaty bodies; and second, that the requirement that members of the Council be reviewed first would keep some of the worst human rights violators from seeking membership on the Council.

The first elections to the Council encouraged the view that membership would improve—particularly when some countries with very poor human rights records, such as Sudan, did not even seek membership on the Council, and others, like Iran and Venezuela, were defeated. But China, Cuba, Saudi Arabia and several other states with abusive records gained prominent slots on the Council, making it difficult to sustain this argument about better membership. Some observers claimed that there was then a higher percentage of democratic states represented on the Council, but others argue the difference was trivial.¹¹³ Furthermore, the early decisions of the new Council, in particular, those convening three special emergency sessions in the first six months all on Israeli actions and adopting country resolutions solely against Israel and no other state, also raised serious doubts about the claims of improved membership in the new body including from Annan who proposed it.¹¹⁴

The UPR could in fact provide added value and complement the treaty bodies in that its review of human rights compliance could be universal, covering every state in turn—which has not been the case for the treaty bodies, at least not yet. It is less clear that the likely sources of information that would trigger each UPR procedure would add value. If the information submitted repeats the treaty body findings and makes them subject to substantive reassessment, it could actually diminish the work of the treaty bodies. Similarly, if the new source of information is a compilation of all UN human rights information on all rights, supplemented by all available information from NGOs and non-UN sources, it may present too much information on too many norms and require too many of the UN's limited human and financial resources to produce much in the way of added understanding or improvement of rights protection.

Although UPR needs a solid base of information, it is not more information that is needed, but analysis of the information that exists. Treaty bodies currently analyse human rights information in the guise of preparing a list of issues, but these lists tend to be extensive and often unfocussed. Ultimately, the quality of the review depends on the knowledge and expertise of the examiners, and their security from pressure by the country under review. The role of an informed, engaged, and well-resourced UN secretariat in this process is central. The input of civil society should be ensured because independent non-governmental groups bring vital information, questions and ideas to any review. Whether the preparation of the information or questionnaire that starts the UPR is conducted by government-appointed representatives or independent experts, the analysis of the human rights issues under review needs to be thorough, focussed and lead to an outcome or set of conclusions and recommendations.

To be credible, UPR must acknowledge that its primary goal must be to promote compliance with international human rights obligations. All the goals mentioned, such as the improvement of policy-making, exchange of information, the promotion of transparency and the opening of opportunities for technical assistance or capacity building, cannot replace the need for greater state action to implement the obligations under the treaties and related norms. Experience with other UN mechanisms suggest that the scope of issues that are addressed and assessed by the new procedure must be narrow and focussed in order to achieve real added value.

As to providing equal treatment of states, the UPR offers about the same procedural due process as the treaty bodies and unless the procedure has the capacity to recommend different actions by and regarding states, depending upon the actual level of respect for rights and implementation of the norms under examination in the state, the UPR would offer little new in the way of protection of human rights. An argument is in process among member states of the Council over whether states should be presented with a questionnaire that is individualised, as suggested earlier, and based on an analysis of country behaviour, or if ‘equal treatment’ means it should consist of a form that asks the same questions of all countries. Whatever the decision, the actual conclusions or assessments reached should be issued against a uniform set of criteria, so as not to be later impugned as ‘politicised’ by those who have violated the criteria already accepted by all. This suggests that a more limited set of norms as the basis for UPR might, in fact, increase its capacity to offer equal treatment to states. There is, of course, a tension between the need for equal treatment—in order to address the universality concern—and the need for clarity about compliance and violations—to address the expectation that the Council will be credible. Experience with UN human rights mechanisms reveals that the attempts at universality—equal treatment, equal time spent and equal resources—can often mask, or mute attention to, the worst cases of abuse, or produce moral equivalency of severe violators with those largely in compliance.

The demand for a ‘cooperative mechanism’ may pose problems. As indicated earlier, if cooperation means a state will guarantee its participation in and acceptance of monitoring procedures and its compliance with normative standards, this could be very useful. But if the term is a code for a review in which the state is unilaterally able to block consideration of standards it considers problematic, and to delay or reject the Council's scrutiny and recommendations, then a ‘cooperative mechanism’ could actually set back compliance with human rights obligations in the treaties and other instruments. In view of the ambiguity in the terms of reference for the UPR procedure, and the competing visions of what an intergovernmental human rights body should actually do when it comes to scrutinising and correcting gross violations of human rights in a country, it is reasonable to doubt whether the new Council will resolve this issue so central to its credibility.

There is also the matter of whether exculpatory ‘factors and difficulties’ are to be part of the consideration of capacity building, and whether they diminish the ability of the UPR to assess a state's rights record accurately and make appropriate recommendations. It is difficult to predict whether the UPR will experience problems reflecting the very different expectations states have about the desirability of country scrutiny in the new Council.

Common to the consideration of UPR by actors inside and outside the United Nations is the view that UPR should be a corrective to the ‘confrontational’ and ‘politicised’ human rights procedures created by the former Commission. To meet expectations about the enhanced stature of human rights under this reformed body, much of the discussion on UPR—of reports, information sources and dossiers, new expert subsidiary bodies, plenary discussions, replies, recommendations and follow-up—has been targeted towards a process that would be universal and periodic and would conduct enough of a review of performance to add to the professionalism of the exercise. Discussion of overlap with the treaty bodies in large measure reflects the fact that these bodies are seen as among the most credible and professional of the UN human rights mechanisms. The treaty bodies have operated separately from the political intergovernmental human rights bodies. Yet, the new procedure could create a reporting procedure that would overlap with the treaty bodies, and be dependent in part upon their conclusions. It is worth reflecting further on whether the various proposals about the UPR can in fact ensure that the work of the treaty bodies will be complemented—that is, structured to fill lacunae in the treaty body system and do so in a way that results in greater protection of rights-holders around the world.

If the purpose of UPR is simply to have every state appear before the same body with equal procedural treatment, then the issues examined can span the full range of human rights and every state will no doubt prove deficient in some area. But if the purpose is to enhance the credibility of the United Nations in its intergovernmental protection of human rights, then it needs to examine the performance of states based on a set of measurable benchmarks. To rid the UN human rights bodies of their credibility gap, gross violators cannot be permitted to define, assess and conclude that human rights protection in their countries is adequate.

It is daunting to begin the work of a new human rights body of 47 states that is charged with examining practices in all 192 member states. The human rights treaty bodies meet year-round to cover some of this territory. To complement this, it might be more workable, and more productive to begin with a limited set of human rights principles as the basis for UPR for every state. This would meet the ‘equal treatment’ concern. For example, all states could be assessed on the basis of a few basic norms with specific measurable obligations such as protecting the rule of law, the right to participate in changing one's government, non-discrimination on grounds of race, sex, language, religion (charter-based norms), and the right to education or shelter. Such a UPR process could also assess cooperation with UN human rights bodies, thus taking into account the request for a ‘cooperative mechanism’.

Some have framed UPR as the remedy to all of the problems of the Commission and especially the problem of ‘politicisation’. These heightened expectations have not been accompanied by a realistic look at which states are being elected and which states already have experience before the treaty bodies. Some have suggested that the new process would succeed in scaring away violator governments from seeking membership on the new Council, since they would be reluctant to have such scrutiny take place. Those arguing this seem to forget that every country in the world is a party to at least one human rights treaty and is already reviewed in public by the relevant treaty monitoring committees. Such scrutiny, which is now accompanied by conclusions that are drawn up by the treaty bodies, is rarely enough to keep the same countries from nominating and running national candidates for seats on the treaty bodies, or from carrying out actions that may violate the norms that are being examined there. While some of the countries that sought membership on the new Council have expressed interest in UPR as a mechanism that can enhance scrutiny, others clearly want it to be a way to avoid scrutiny. Among the concerns that states will have to take into account as they shape this new procedure in the first year of the new Council is the need for trust among participants for the UPR or any intergovernmental human rights mechanism to work. Yet, this is clearly the item that is most absent from the Council.

Thus, one way to advance the ‘professionalism’ and ‘credibility’ of the United Nations in human rights (in addition to strengthening the treaty bodies) would be for the new UPR to allow member states to evaluate all states according to a limited number of benchmarks or rights. Further, UPR could be conducted for all states before rather than after they become members of the Council. In this way, the substantive outcome would be a matter of the Council's own official record before a state becomes a member. States would be faced with the challenge of deciding what to do about the states that fail to meet the minimum standards. If UPR determines that a country is a gross violator of human rights, the Council members will face the challenge of acting on this finding. And what if the country examined does not agree to change its practices in accord with the recommendations from the UPR procedure? Will the procedure provide in those or other circumstances that the country concerned is ineligible to run for membership in the Council? And if, with this information before them, member states of the General Assembly decide to elect gross violators to the Council, then they will have provided their own answer to the ‘credibility’ complaint. Such an outcome would further emphasise the importance of having and strengthening impartial, independent treaty bodies or mechanisms like them to conduct scrutiny of human rights through the United Nations.

	Footnotes

 
¹ Report of the High-Level Panel on Threats, Challenges and Changes, A More Secure World: Our Shared Responsibility, 2 December 2004, A/59/565 at paras 282–94.

² In larger freedom: towards development, security and human rights for all, Report of the Secretary-General, 26 May 2005, A/59/2005/Add.3 at paras 140–7 and 181–3.

³ Report of the High-Level Panel, supra n. 1 at para. 283.

⁴ In larger freedom, supra n. 2 at para. 182.

⁵ Ibid. at para. 183.

⁶ Addendum to In larger freedom, Human Rights Council: Explanatory note by the Secretary-General, 23 May 2005, A/59/2005/Add.1 at para. 6.

⁷ Ibid. at paras 6 and 7.

⁸ In larger freedom, supra n. 2 at para. 182.

⁹ Draft Outcome Document of the High-level Plenary Meeting of the General Assembly of September 2005 submitted by the President of the General Assembly, 8 June 2005, A/59/HLPM/CRP.1 at para. 88. See UN Press Release, ‘Assembly President Previews Possible Outcome of Summit on UN Reform’, 3 June 2005, available at: www.un.org/news.

¹⁰ Revised Draft Outcome Document of the High-level Plenary Meeting of the General Assembly of September 2005 submitted by the President of the General Assembly, 22 July 2005, A/59/HLPM/CRP.1/Rev.1 at para. 131.

¹¹ Revised Draft Outcome Document of the High-level Plenary Meeting of the General Assembly of September 2005 submitted by the President of the General Assembly, 10 August 2005, A/59/HLPM/CRP.1/Rev.2 at para. 139.

¹² President's Draft Negotiating Document for the High-Level Plenary Meeting of the General Assembly of September 2005, submitted by the President of the General Assembly, 6 September 2005, at para. 146(d), available at: www.reformtheun.org.

¹³ For more on this see Committee on Economic, Social and Cultural Rights General Comment No. 16, The equal right of men and women to the enjoyment of all economic, social and cultural rights (Article 3), 11 August 2005, E/C.12/2005/4; and Human Rights Committee General Comment No. 31, The Nature of the General Legal Obligations Imposed on States Parties to the Covenant, 26 May 2004, HRI/GEN/1/Rev.7 at 192.

¹⁴ 2005 World Summit Outcome, 15 September 2005, A/60/L.1 at paras 157–60.

¹⁵ GA Res. 60/251, 3 April 2006, A/RES/60/251; 13 IHRR 1195 (2006) at para. 5(e). The Resolution was adopted by a vote of 170 in favour, four opposed (Israel, Marshall Islands, Palau and United States), and three abstentions (Belarus, Iran and Venezuela).

¹⁶ Explanatory note, supra n. 6.

¹⁷ Ibid. at para. 6.

¹⁸ Gaer, ‘Scrutinizing Countries: The Challenge of Universal Review’, (2006) 13 Human Rights Brief 9.

¹⁹ See Kanbur, ‘The African Peer Review Mechanism (APRM): An Assessment of Concept and Design’, (2004) 31 South African Journal of Political Studies 157.

²⁰ There has been longstanding criticism that many persons nominated and elected to such posts actually serve in the foreign service or judiciary of their home countries, and that, while expert, cannot be called independent.

²¹ See UN Press Release, ‘Commission on Human Rights Holds Informal Meeting on Secretary-General's Reform Proposals’, 20 June 2005, HR/CN/1110.

²² Human Rights Peer Review, Draft Concept and Options Paper, Prepared by Canada, 29 April 2005 at 1, available at: www.eyeontheun.org.

²³ Ibid. at 3.

²⁴ Ibid. at 4.

²⁵ Human Rights Peer Review Mechanism, Non-Paper Version # 2, Prepared by Canada, 6 July 2005, available at: www.eyeontheun.org. This document, with minor changes (for example, peer review mechanism is renamed universal periodic review), was circulated to member states at informal consultations and this amended version is reproduced as Canada, Written Contribution ‘Non-Paper’ of 21 July 2006, reproduced in Updated Compilation of Proposals and Relevant Information on the Universal Periodic Review, 9 November 2006 (‘Updated Compilation of Proposals’) 20, available at: http://portal.ohchr.org.

²⁶ Ibid. at 1.

²⁷ These consultations took place on 28 April 2006, 4 May 2006 and 12 May 2006.

²⁸ See Chair's Summary of the Seminar on the UN Human Rights Council, Lausanne, Switzerland, 15 May 2006, available at: http://portal.ohchr.org.

²⁹ See Switzerland, Written contribution ‘Model 1’, reproduced in Updated Compilation of Proposals, 50; and Switzerland, Written contribution ‘Model 2’, reproduced in ibid., 52.

³⁰ See Council Dec. 1/103, 30 June 2006, A/61/53 at 34.

³¹ Consultations were held on 21 July 2006, 2 August 2006 and 7–8 September 2006.

³² See Updated Compilation of Proposals.

³³ See Articles 1(3), 55 and 56, UN Charter.

³⁴ See ECOSOC Res. 624B (XXII), 1 August 1956.

³⁵ United Nations Action in the Field of Human Rights, ST/HR/2/Rev.3 (New York: United Nations, 1998) at 312–3, especially para. 44.

³⁶ See ECOSOC Res. 1074C (XXXIX), 28 July 1965.

³⁷ GA Res. 35/209, 17 December 1980, A/RES/35/209, which was confirmed by Comm. Dec. 10 (XXXVII), 13 March 1981. See UN Action, supra n. 35 at 312–4.

³⁸ 660 UNTS 195.

³⁹ 999 UNTS 171.

⁴⁰ 993 UNTS 3.

⁴¹ The Human Rights Committee (HRC) monitors compliance with the ICCPR and its Additional Protocols; the Committee on Economic, Social and Cultural Rights (CESCR) monitors compliance with the ICESCR; the Committee on the Elimination of Racial Discrimination (CERD) monitors compliance with ICERD; the Committee on the Elimination of Discrimination Against Women (‘CEDAW Committee’) monitors compliance with the Convention on the Elimination of Discrimination Against Women 1979, 1249 UNTS 13 (CEDAW) and its protocol; the Committee Against Torture (‘CAT Committee’) monitors compliance with the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, 1465 UNTS 85 (CAT); the Committee on the Rights of the Child (‘CRC Committee’) monitors compliance with the Convention on the Rights of the Child 1989, 1577 UNTS 3 (CRC) and its Optional Protocols; and the Migrant Workers Committee (‘MWC Committee’) monitors compliance with the Convention on the Protection of the Rights of All Migrant Workers and Their Families 1990, GA Res. 45/158, 18 December 1990, A/RES/45/158 (MWC).

⁴² Only five of the seven treaty bodies have a complaint procedure: HRC, CERD, CAT Committee, CEDAW Committee and MWC Committee. To date, the HRC has registered 1435 cases; the CAT Committee has registered 288 cases; CERD has registered 35 cases; see Concept Paper on the High Commissioner's Proposal for a Unified Standing Treaty Body, 14 March 2006, HRI/MC/2006/CRP.1 at Annex 4. No information has been published regarding the number of cases registered by the CEDAW Committee. The MWC Committee is yet to start receiving individual complaints. The individual complaints procedure will only come into effect after it has been accepted by 10 states parties, see Article 77, MWC.

⁴³ However, to date, there have been no such inter-state complaints.

⁴⁴ Only the CAT Committee and the CEDAW Committee may conduct such ‘on-site’ fact-finding missions. See Article 20(3), CAT and Article 8, Optional Protocol to the Convention on the Elimination of Discrimination Against Women 1999, GA Res. 54/4, 6 October 1999, A/RES/54/4; 7 IHRR 294 (2000).

⁴⁵ See Compilation of General Comments and Recommendations Adopted by the Human Rights Treaty Bodies, 8 May 2006, HRI/GEN/1/Rev.8.

⁴⁶ See Article 40, ICCPR; Article 16, ICESCR; Article 9, ICERD; Article 18, CEDAW; Article 19, CAT; Article 44, CRC; and Article 73, MWC.

⁴⁷ Which are described as comments, general comments, general recommendations or suggestions in the relevant treaties.

⁴⁸ Both Article 9, ICERD and Article 18, CEDAW specify that the state must report on the ‘legislative, judicial, administrative or other measures’, whilst the other treaties simply ask for details of the measures taken.

⁴⁹ Article 44(2), CRC.

⁵⁰ In the case of CAT, this is presumably because Article 2(2), CAT provides that: ‘No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture’.

⁵¹ See the Report on the Working Methods of the Human Rights Treaty Bodies Relating to the State Party Reporting Process, 17 May 2006, HRI/MC/2006/4 at para. 16.

⁵² Ibid. at paras 55–7.

⁵³ See Gaer, ‘Implementing International Human Rights Norms: UN Human Rights Treaty Bodies and NGOs’, (2003) 2 Journal of Human Rights 339.

⁵⁴ See Report on the Working Methods, supra n. 51 at para. 49; and Compilation of the Rules and Procedures Adopted by Human Rights Treaty Bodies, 28 May 2005, HRI/GEN/3/Rev.2 and the Addendum to that Compilation, 9 May 2006, HRI/GEN/3/Rev.2/Add.1.

⁵⁵ See Compilation of Guidelines on the Form and Content of Reports to be Submitted by States Parties to the International Human Rights Treaties, 8 May 2006, HRI/GEN/2/Rev.3.

⁵⁶ Consolidated guidelines for the initial part of the reports of States parties, 26 April 1991, HRI/1991/1. Information on how many and which states parties submit core reports is available at: http://www.unhchr.ch/tbs/doc.nsf.

⁵⁷ Harmonised guidelines on reporting under the international human rights treaties, including guidelines on a common core document and treaty-specific documents, 10 May 2006, HRI/MC/2006/3. The expanded core document should include information concerning the demographic, economic, social and cultural characteristics of the state; its constitutional, political and legal structure; its acceptance of international human rights norms; its legal framework for the protection of human rights at the national level; its reporting process at the national level including follow-up to concluding observations of human rights treaty bodies; as well as information concerning non-discrimination and equality and effective remedies.

⁵⁸ Para. 5(e), GA Res. 60/251, supra n. 15.

⁵⁹ See supra Section 3 B (ii).

⁶⁰ As noted earlier, at its first session the Council established an inter-sessional open-ended intergovernmental working group to develop the modalities of the universal periodic review mechanism. See Council Dec. 1/103, supra n. 30. The working group is chaired by the President of the Council, with the assistance of Council Vice-President, Ambassador Mohammed Loulichki of Morocco, as facilitiator.

⁶¹ Algeria, Oral Statement (on behalf of the African Group), 21 July 2006, reproduced in Updated Compilation of Proposals, 7. It is noteworthy that according to the OHCHR, states ‘find that meeting complex and overlapping reporting obligations [to the treaty bodies] is challenging...’, see Concept Paper, supra n. 42 at para. 16. 30 percent of the initial reports due by states parties to the treaty bodies have not been submitted. As of February 2006, only 8 of 194 states parties were up to date on their reporting requirements. The OHCHR believes that this is because of a lack of coordination among treaty bodies, ‘A State party may be asked to present reports to several committees in the period of a month, or sometimes a week, and many State parties appear before several committees in the same year’ (ibid. at para. 17). There are serious backlogs in the consideration of the reports, and the OHCHR says it could not cope with these if states were to catch up. For more details and information regarding the reporting backlog and related issues see the Concept Paper, ibid. at Annexes 1–3.

⁶² Netherlands, Written Contribution, reproduced in Updated Compilation of Proposals, 35 at 36.

⁶³ Australia, Written Contribution, reproduced in Updated Compilation of Proposals, 55 at 56.

⁶⁴ Sri Lanka, Oral Statement, 8 September 2006, reproduced in Updated Compilation of Proposals, 48 at 49.

⁶⁵ See Brazil, Oral Statement, 8 September 2006, reproduced in Updated Compilation of Proposals, 16 at 17; Philippines, Written Contribution, 2 August 2006, reproduced in Updated Compilation of Proposals, 41; India, Oral Statement, 2 August 2006, reproduced in Updated Compilation of Proposals, 28 at 29; and Japan, Oral Statement, 2 August 2006, reproduced in Updated Compilation of Proposals, 31 at 32.

⁶⁶ Mexico, Oral Statement, 21 July 2006, reproduced in Updated Compilation of Proposals, 34; and Argentina, Oral Statement, 21 July 2006, reproduced in Updated Compilation of Proposals, 13 at 13–4.

⁶⁷ United States, Written Contribution, reproduced in Updated Compilation of Proposals, 73 at 74.

⁶⁸ See, for example, Human Rights Watch, Written Contribution, reproduced in Updated Compilation of Proposals, 88 at 90.

⁶⁹ See Report on the Working Methods, supra n. 51 at paras 35–48 for a discussion of the different ways in which the seven treaty bodies prepare lists of issues, approve them, structure them, receive responses to them, publish or publicise them and use them in the ‘constructive dialogue’ with representatives of the member states.

⁷⁰ See Clapham, ‘The Complementarity of Universal Periodic Review in the New Human Rights Council’, available at: http://portal.ohchr.org; Amnesty International, Written Contribution, reproduced in Updated Compilation of Proposals, 78 at 80; and International Commission of Jurists, Written Contribution, reproduced in Updated Compilation of Proposals, 91 at 94.

⁷¹ Many special procedures annually provide information on actions taken regarding allegations of human rights violations in some 50–80 countries. Taken together as a group, the special procedures do have broad country coverage. Despite criticisms of the Commission for politicisation, and a lack of credibility because the powerful states are allegedly not scrutinised for their human rights performance, the on-site visits by special procedures to look into and report publicly on human rights conditions in those states have included a wide array of countries from both developed and developing states notably including the five permanent members of the Security Council. The latter are often criticised by critics of the Commission. In fact, from 1998 to 2005, each of the five permanent members of the Security Council had been visited by one or more thematic special rapporteurs. The number of visits is as follows: France, two; Russia, three; China, three; United States, six; and United Kingdom, seven.

⁷² International Commission of Jurists, written contribution, ibid. at 93.

⁷³ Finland, Written Contribution (on behalf of the European Union and acceding states Bulgaria and Romania), 18 August 2006, reproduced in Updated Compilation of Proposals, 23 at 24.

⁷⁴ Ibid. at 23.

⁷⁵ Algeria, Oral Statement, supra n. 61 at 10.

⁷⁶ Singapore, Oral Statement, 21 July 2006, reproduced in Updated Compilation of Proposals 71 at 71.

⁷⁷ Australia, written contribution, supra n. 63 at 56.

⁷⁸ United States, written contribution, supra n. 67 at 74.

⁷⁹ Iran, Written Contribution, reproduced in Updated Compilation of Proposals, 63 at 63.

⁸⁰ GA Res. 217 A(III), 10 December 1948, A/810 at 71.

⁸¹ During the first election to the Council candidate states made ‘commitments’ or pledges to promote and protect human rights in specific ways.

⁸² Para 5(e), GA Res. 60/251, supra n. 15.

⁸³ See Report on Working Methods, supra n. 51 at para. 66.

⁸⁴ Ibid. at paras 66–8.

⁸⁵ Para. 5(e), GA Res. 60/251, supra n. 15.

⁸⁶ Article 1(3), UN Charter.

⁸⁷ This list is available at: www.ohchr.org/english/bodies/chr/special/invitations.htm.

⁸⁸ See, for example, Comm. Res. 2000/22, Cooperation with representatives of United Nations human rights bodies, 18 April 2000, E/CN.4/RES/2000/22.

⁸⁹ See Report on Working Methods, supra n. 51 at para. 55 ff.

⁹⁰ Such ‘reform’ demands intensified in the late 1990s. For example, in 1999, numerous counterproposals were set out by an extremely active group that included Algeria, Bhutan, China, Cuba, Egypt, India, Iran, Malaysia, Mexico, Myanmar, Nepal, Pakistan, Sri Lanka and Vietnam, with Cuba, India and Pakistan acting as spokesmen. Despite a vigorous group of states, led by Mexico, from all world regions opposing this Like-Minded Group, the Commission's Chair, Ambassador Anne Anderson of Ireland, introduced a compromise text calling for a working group in Geneva during the course of the year to sort out reform proposals. Term limits on special rapporteurs were agreed, and shortly afterwards, further demands were raised for a reassessment of the decision-making procedure in the Commission. Among the proposals raised were that all resolutions would have to be agreed by consensus, as this would show cooperation and respect. This was just the beginning of efforts for reforms aimed at ending the practice of voted country-specific resolutions. For more on this, see Gaer, ‘Human Rights’, in Tessitore and Woolfson (eds), A Global Agenda: Issues Before the 54th General Assembly of the United Nations (NY: Rowman and Littlefield Publishers, 1999) 153 at 158–60.

⁹¹ Algeria, oral statement, supra n. 61 at 9.

⁹² Statement by Peter McKay, 19 June 2006, available at: www.ohchr.org.

⁹³ Statement by Bernard Bot, 19 June 2006, available at: www.ohchr.org.

⁹⁴ Statement by KP Sharma Oli, 19 June 2006, available at: www.ohchr.org.

⁹⁵ Speech by Frank-Walter Steinmeister, 19 June 2006, available at: www.ohchr.org.

⁹⁶ Statement by Ban Ki-Moon, 19 June 2006, available at: www.ohchr.org.

⁹⁷ Statement by Yang Jiechi, 20 June 2006, available at: www.ohchr.org.

⁹⁸ Statement by Patrick Chinamasa, 21 June 2006, available at: www.ohchr.org.

⁹⁹ Statement by Manouchehr Mottaki, 22 June 2006, available at: www.ohchr.org.

¹⁰⁰ Intervention by Celson Amorim, 19 June 2006, available at: www.ohchr.org.

¹⁰¹ Statement by Felipe Pérez Roque, 20 June 2006, available at: www.ohchr.org.

¹⁰² Details of the meeting were being published as this article was being completed.

¹⁰³ Statement by Masood Khan, 4 December 2006, available at: www.ohchr.org.

¹⁰⁴ Statement by Mostafa Alaei, 4 December 2006, available at: www.ohchr.org.

¹⁰⁵ Closing Statement to the Commission, 25 April 2003.

¹⁰⁶ See n. 50 supra.

¹⁰⁷ See Concluding observations of the Committee on the Rights of the Child: Chad, 24 August 1999, CRC/C/15/Add.107.

¹⁰⁸ See Concluding observations of the Committee on Economic, Social and Cultural Rights: Algeria, 30 November 2001, E/C.12/1/Add.71.

¹⁰⁹ See Concluding observations of the Committee against Torture: Russian Federation, 14 November 1996, A/52/44 at paras 31–43.

¹¹⁰ See Concluding observations of the Human Rights Committee: Germany, 18 November 1996, CCPR/C/79/Add.73

¹¹¹ Para. 5(e), GA Res. 60/251, supra n. 15.

¹¹² Kälin, Jimenez, Künzli and Baldegger, ‘The Human Rights Council and Country Situations: Framework, Challenges and Models’, 7 June 2006 at 8, available at: http://portal.ohchr.org.

¹¹³ Whilst Peggy Hicks of Human Rights Watch commented that ‘more than of the members are considered democratic’, Professor Anne Bayefsky noted that ‘21 of the 47 elected states fail to embody the minimum characteristics to be rated "free" by Freedom House, and that 9 of the world's worst human rights abusers are members’. See ‘Online Debate’, available at: www.cfr.org. See Freedom House, ‘The UN Human Rights Council at the Halfway Mark: A Report Card’, 20 November 2006, available at: www.freedomhouse.org. Calculations about members differ according to membership of the Community of Democracies, the UN Democracy Caucus or rankings by Freedom House.

¹¹⁴ See, for example, UN Press Release, ‘Secretary General in Message to Human Rights Council Cautions against Focusing on Middle East at expense of Darfur, Other Grave Crises’, 29 November 2006, SG/SM/10769-HR/4907; and Speech by Kofi Annan, 8 December 2006, in which he stated ‘we must realize the promise of the Human Rights Council which so far has clearly not justified the hopes that so many of us placed in it’.