Human rights and peer review process

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Date produced: 03/11/2009

What are the benefits and drawbacks of the current Human Rights Council peer review process? What works, what could be improved and could you outline any involvement by NGOs – i.e., ability to submit amicus briefs, etc?

There is a formal process for NGO involvement, spelled out in greater detail below and in the document accompanying this memo. In addition to employing these formal mechanisms, NGOs use informal means to encourage national representatives to raise particular issues when reviewing their peers. Again, some NGOs have found this to be very effective.  Even those NGOs that have been successful in using both formal and informal processes acknowledge that the true test of whether the peer review process works is whether it gets results on the ground.  Since no nation has yet gone through more than one review, it is too soon to definitively assess whether the process yielded such results.  Some NGOs have identified results as grassroots groups use the Council’s review to move forward at home, while a vocal minority believe that the process enables states to avoid positive commitments.

As set out more specifically in the Recommendations discussion that follows, in considering this model for use in an environmental context, NGOs should (1) retain the HRC procedures that make the process particularly accessible to NGOs; (2) look to expand accessibility in specific ways, such as better enabling grassroots groups to participate fully; and (3) consider ways to emphasize states’ ethical obligations as a means to counteract the impact of politicization on the review process.

This type of mechanism provides a basis for greater NGO access and participation but in the light of concerns about states’ political unwillingness to criticize each other, it should not perhaps be seen as a substitute for other forms of compliance procedure but as a complement to them.

Discussion

Research Methodology:

In order to answer this query, I surveyed on-line materials and reports on the UPR process of the HRC.  In addition, I communicated directly with representatives of four NGOs that regularly participate in the UPR process.  Because I did not obtain permission from these representatives to disseminate their statements for attribution, I do not identify them by name in this document.  In general, though, they are politically progressive and internationally-focused.  Three of the NGOs interviewed work primarily on ESC rights, while the fourth is a membership organization that addresses principally civil and political rights issues.  These interviews underscored the mixed reception given the UPR process.  Two felt that they had been able to use the process quite successfully; one felt that the process was a “mixed bag,” but certainly not uniformly negative; and one averred that “the HRC experience has been very poor, it has not lived up the expectations, and it is still highly politicized and not objective.”

Process for NGO Participation:

UPR Info, a Geneva-based NGO devoted to providing information on the universal periodic review process is a good source of basic information.  The organization’s website is upr-info.net.  According to UPR Info, NGOs’ participation in the UPR can take four different forms:

            — Sending submissions to the Council Secretariat before the Review

            — Lobbying  members of the Working Group

            — Taking the floor during the plenary before the adoption of the outcome

            — Monitoring the implementation of UPR recommendations by the State under Review

The submissions to the Council Secretariat are used to prepare the 10-page report provided to the Council members in advance of the review.  While many nations and NGOs are competing for a mention in this relatively short document, according to one small international NGO that reported success with this process, “in the past, [we] have been able to get our concerns into these ten page reports and even have Member States of the Council question the country under review using questions that we drafted.”

Several formal reports on the UPR process concur that the process for NGO participation has been quite good.  For example, in its report titled The Human Rights Council: A New Era in UN Human Rights Work?, http://www.un-ngls.org/article.php3?id_article=332&var_mode=calcul, the UN Non-Governmental Liaison Service stressed the opportunity for NGOs to participate orally.  According to the report, during special sessions, NGOs are able to contribute substantively and participate in dialogues with Special Rapporteurs and debates in general.  In the author’s words, “this is unprecedented in Geneva, and NGOs remain unable to speak in similar dialogues with the Special Rapporteurs in the General Assembly’s Third Committee in New York.”

Other reports also praised the access given NGOs.  One report noted that NGOs were included in the Plenary and the High Level Segments; Informal Consultations were also open to NGOs; speaking blocks were carved out for NGOs and they were also allowed to submit written statements; and online webcasts were available to NGOs not in attendance.  Similarly, a report by Human Rights First commended the active participation of NGOs in the UPR.  See Democracy Caucus must lead UN action on Human Rights and Democracy, http://www.humanrightsfirst.info/pdf/06912-hrd-undc-signatures.pdf.

In contrast, a few NGOs were highly critical of the measures for NGO participation in UPR.  Isis International, a feminist communications organization, raised issues concerning the allocation of speaking time to NGOs, how to integrate grassroots organizations and how to prevent the appearance of government-sponsored NGOs.  See UN Human Rights Council: A Step Forward or a Step Back?, http://www.isiswomen.org/index.php?option=com_content&task=view&id=740&Itemid=204.

UN Watch found similar deficiencies and produced a set of recommendations regarding the participation of NGOs in the review process, i.e., We urge the Human Rights Council to allow reliable NGO information to play a far greater role.”  See Human Rights Council Turning into “Mutual Praise Society,” http://www.humanrights-geneva.info/U-N-Rights-Council-Turning-into,4098.

Responding to these critiques, one of my informants pointedly stated that “There are concerns about civil society organizations not having as direct a role in the review, but in fact, it’s as much of a role as in the treaty body process.  NGO briefs are received in advance of the review, and posted on the website.  Then the NGOs are able to meet with states in advance of the review.  And afterwards, they are permitted to make a short statement.”  As to informal lobbying, my informant attested that, “It’s not hard at all to get the ear of delegates who are looking for good information for the peer review.  We were able to meet about 50 of them over coffee in the lounge in the course of three days or so.”  My informant did, however, have one familiar critique of the process: “Unfortunately, some of the more established Geneva-based NGOs are able to wield disproportionate influence at the expense of domestic groups actually getting their issues raised.”

On-the-Ground Results:

Of the four NGOs I interviewed, three felt that the UPR process yielded greater advances in human rights compliance than alternative processes.  As one of the NGOs reported, “as usual, the real measure of success is what our locally-based partners have been able to do with the UPR reports on the ground.  Our Slovak partners have been able to push for policy reform using the UPR as leverage.”  Another supportive NGO acknowledged that some countries have abused the peer review process, but noted that other nations had taken it quite seriously.  This informant observed that when the peer-to-peer system worked, as it sometimes did, the result was extremely powerful – more powerful than it would have been if the review was conducted by a panel of experts.  A third NGO representative stated that, “I think the peer review process is an important area in which to work, and may be underrated by some NGOs.  Like other UN procedures, you have to know how to deal with various obstacles, etc., and we need better resources to develop its potential.”

Published reports, on the other hand, tend to be negative, while also acknowledging that it is early for a definitive assessment.  In the “Mutual Praise Society” report cited above, UN Watch concluded that States were refraining from giving constructive feedback at peer review sessions.  Human Rights Watch similarly observed that participating states seem more intent on not offending each other than on addressing human rights issues.  See UN: Rights Council Ends First Year with Much to Do, http://www.hrw.org/en/news/2007/06/18/un-rights-council-ends-first-year-much-do.

In an innovative and principled approach to combating the politicization of the process, one of my informants suggested a greater focus on the ethics of peer review for participating states, stressing the ethical obligation of states to speak out when human rights issues are raised during a review.  As my informant stated, nations need to be taught the importance of rising above self-interest when they are acting in this new capacity, i.e., as peer reviewers.

Conclusion and Recommendations

As stated above, it may be too soon to draw firm conclusions about the UPR process in the HRC, but it also seems that it would be unwise to reject the approach out-of-hand were it to be introduced as part of the Copenhagen discussions.  As several informants observed, the process is extremely powerful when it works.  The challenge is to make it work better and more often.  A number of observers have made suggestions for how that might happen – particularly about how to strengthen the already-strong element of NGO participation, as well as approaches to rein in the role of politics in the review process.  These are summarized below as recommendations.

Recommendations:

1.  In thinking about the possible role of peer review in the Copenhagen context, the following HRC innovations should be seriously considered and retained if possible:

— mandates for civil society consultation in preparation of reports

— formal NGO speaking roles during the process

2.  A new peer review process in the environmental context could improve upon the HRC model by including the following:

— greater opportunities for NGO input earlier in the collective process, including  enhanced opportunities for dialogue such as opportunities to comment on summaries of state reports prepared by the Secretariat

— better, more structured opportunities for participation in the review process by grassroots and local groups

3.   The role of state-to-state politics in the peer review process might be diffused by:

— development of a stronger, more clearly defined ethical obligations of participating states to speak out against human rights violations in the peer review context