Given the expanded role of NHRIs in the second cycle of the UPR, what programming opportunities do you see for UN entities / UNCTs in supporting NHRIs to follow-up on the recommendations emanating from the UPR? How are NHRIs supporting the implementation of UPR recommendations?”
The relationship between NHRIs and the UPR is potentially one of mutual benefit but this is yet to be realised fully (for data on NHRI engagement with the UN system see OHCHR 2009 survey). For the UN and member States, ‘A status’ NHRIs may offer a valuable source of information and a credible and independent voice to that of the government under review. They may also inject some critical and honest debate into the politicised realm of the Human Rights Council more generally. For the NHRI, participation in the UPR can contribute to the fulfilment of its principal mandate: promotion and protection of human rights on the ground
The second cycle offers an important opportunity to further institutionalise engagement. However, it is also necessary to place this development in context and reflect on the opportunities and challenges that confront the UN and NHRIs in shaping an evolving arena of action. For many NHRIs, the case still needs to be made as to the usefulness of UPR engagement in the fulfilment of their mandate. For the UN and other stakeholders, careful thought needs to be given to how best to facilitate and incentivise NHRI engagement in light of competing demands and expectations placed on these institutions.
It is important to note that NHRI engagement in the first UPR cycle was limited, with many NHRIs contributing to state reports through national consultative processes, some pursuing follow-up activities to UPR recommendations, but few seeking to pursue their priorities and policies through direct participation in Geneva. In part, this is a reflection on the outcome of the state-led reform of the Council in 2005 and resolution 5/1 in particular which:
- Does not refer to NHRIs specifically, instead grouping them under the rubric of ‘relevant stakeholders’
- Gives greater emphasis to the consultative status of NHRIs during the preparation of state reports at the national level than their participation in HRC plenary
- Provides NHRIs with the ‘opportunity to make general comments before the adoption of the outcome by the plenary’
- Permits NHRIs to attend the interactive dialogue but effectively silenced them during proceedings
Nevertheless, NHRIs did enjoy limited, but real, opportunities under resolution 5/1 to significantly influence recommendations in the outcome document of the review. Notably, they were allowed to comment on the draft report before its adoption by the plenary session of the Council (see report by the Bolivian NHRI here). NHRIs were also able to organise parallel events to highlight their activities, with ICC general meetings often scheduled to overlap with HRC plenary dates. Intriguingly, NHRIs are also able to comment on any state and report under review.
If this was a good start, the scales have tipped decisively with resolution 16/21, opening up new structures of opportunity for NHRIs committed to increasing their participation. NHRIs are now:
- Accorded explicit recognition and status among stakeholders
- Entitled to intervene immediately following the State delegation during the adoption of the outcome of the review
- Able to intervene immediately after the State party during the interactive dialogue – following the country mission report by a special procedure.
A question of strategy
The Paris Principles provide the departure point for NHRI design but they offer very little guidance on the crucial matter of strategy and the intrinsic value of fulfilling a mandate ‘to cooperate with the United Nations and any other organisation in the United Nations system.’ This has been left to other actors such as individual NHRI offices, the Danish Institute, the International Coordinating Committee of NHRIs (ICC), OHCHR and the now sadly defunct International Council on Human Rights Policy. Scholars have also turned their attention to NHRI impact, such as a recent volume edited by myself and Ryan Goodman at NYU (the introductory chapter is available for download here).
Recent developments not only validate the importance of such efforts but also underline the rapid pace of developments, with elevation of NHRI status at the Human Rights Council further elevating their profile and visibility within UN structures. Responding to this development, I currently co-lead, alongside Dr Par Engstrom of UCL, a project to strengthen the capacity of NHRIs in Latin America to engage with the UPR to promote State implementation of international torture prevention standards. We convened a meeting of NHRIs, civil society and external stakeholders in Buenos Aires in December 2011 to explore lessons learnt and best practice in preparation for the upcoming second UPR cycle. The resulting Meeting Declaration is available for download here. The project continues to draw on expertise within the OHCHR, IACHR and NHRI offices with further information available on the dedicated project website.
The following highlights some key points derived from my research which may be of interest to this e-discussion:
- Many NHRI officials in Latin America feel that the first UPR cycle provided only very limited opportunities for their organisations to participate in a meaningful way
- They are supportive of the revised procedures adopted for the second cycle and appear willing and able to actively take advantage of their new status and strengthened opportunity structures within the UPR process
- They are particularly keen to take advantage of the recommendations emitted in the first cycle of the review to pressure state authorities to improve their human rights performance
- The OP-CAT is another domain where A-status NHRI activity is increasingly visible and significant in light of designation of National Preventive Mechanisms (NPMs)
- A growing number of NHRIs have been designated National Preventive Mechanisms under OP-CAT and for the majority of non-designated NHRIs operating in the fragile democracies of Latin America torture prevention has long been a priority area of concern
- Although UPR recommendations are non-binding and lack the legal weight of treaty obligations, the evidence suggests that states nevertheless take them seriously – often more so than treaty body concluding observations. In other words, they carry political weight
- NHRIs must be persuaded of the value of drawing on the UPR process as additional pressure point on states’ human rights performance. International validation of the NHRIs work and priority focus can give its domestic activity added force in obliging the state to act
- Complaint-handling is described as a core nucleus of NHRI activity, providing a direct interface with the citizen. It is also a key resource in terms of identifying rights priorities, connections across disparate rights issues, and provides a barometer for assessing whether States are fulfilling their obligations
- NHRIs are still to be convinced that activity at the international level is worthwhile. Stakeholders need to demonstrate concretely that by setting the international human rights agenda at the Council, NHRIs can increase the pressure on states to address significant human rights issues at home
- Similarly, increasing a state’s international accountability can have a multiplier effect at the domestic level by placing the spotlight on its human rights performance.
- NHRI officials emphasise that UPR recommendations must be clearly formulated and firmly based in the national realities of the examined country
- A key challenge to NHRI engagement currently is the human and financial resources entailed. Geneva is a long way from their capitals and it is often difficult for NHRIs to justify before a domestic audience the costs of such international activities.
- Participation by NHRIs at the UPR should be tailored to the priorities of the office in question and vice versa. Organisational strategic plans should be informed by UPR recommendations and the need for follow-up
- NHRIs should be encouraged to collect systematic aggregate data on the rights situation in-country using a methodology that is consistent with international human rights standards and responsive to the concerns raised in the UPR
- In order to make the UPR relevant to the work of NHRIs explicit connections should be made between analysis of complaints received and their relation to structural violations identified in UPR recommendations
- NHRIs should designate personnel to liaise with international UN agencies, having previously focused almost exclusively on pressing domestic matters, or prioritising cooperation at the regional level
- Efforts should be made to ensure States actively encourage NHRIs to contribute to national-level consultation on UPR reports. For instance, the State should provide the NHRI with an advance draft copy of the report in good time
- Some NHRIs may be reluctant to directly criticise government for fear of backlash or prevalent norms of political dependence. Thought should be given to articulating the role of the NHRI at the UPR as constructive, complementary to, and independent of, government
- NHRI officials should be familiarised with UN structures, ideally through training of designated NHRI liaison officers in Geneva
- This would entail not only knowledge-exchange on the procedures and practices of the Human Rights Council but also more informal channels of influence. For instance, NHRIs should be encouraged to submit information and informal advice to States on what recommendations to make in the review.
- Special Rapporteurs should be encouraged to engage the NHRI where it is regarded as a credible actor at the domestic level. Special Rapporteurs should be encouraged to draw on the advice of credible NHRIs in devising their country reports
- Initiatives should be directed to identifying UPR recommendations and, more generally, human rights priorities of common concern within or across regions to foster joint-strategies and alliances among NHRIs in their approach to engaging the UPR
- Another suggested proposal is to better equip the ICC to undertake such international network efforts, underpinned by an autonomous research and strategy ‘Secretariat’ responsive to the needs to the ICC and wider NHRI community
- Additional resources should be provided to the ICC to facilitate the travel of NHRI delegations to participate in the UPR
- Expectations on NHRIs as implementation vehicles for UPR recommendations must be calibrated in light of financial constraints. The UN should encourage states to provide adequate funding to NHRIs to ensure that they can effectively participate at the international level
- The Council’s commitment in resolution 16/21 to explore the feasibility of videoconferencing in order to enhance access and participation is also encouraging in this regard. NHRIs have already taken advantage of this resource during the nineteenth session of the HRC in March 2012
- In turn, international intergovernmental donor agencies such as USAID, DFID and SIDA should be encouraged to allocate funding to follow-up of UPR recommendations. Many NHRIs in Latin America rely on international funding for a large percentage of their rights promotion activities.
- The scope for creative engagement by NHRIs in the second cycle of the UPR is considerable and, importantly, goes beyond a purely reactive function of implementation and follow-up to existing UPR recommendations
- Although we are entering the second cycle, for many NHRIs this will be the first opportunity to engage meaningfully with the process
- It is crucial at this stage that NHRIs are given a sense of autonomous ownership of the UPR process, with the emphasis on training at the regional/country-level and concrete demonstration of how UPR-focused activity may pay dividends in advancing their own organisational priorities and policies
- The UPR offers an exciting new entry-point to encouraging credible, routine and formalised participation of NHRIs within UN structures
- It is likely that UPR activity will have important spillover effects with NHRIs incentivised to also engage with core treaty bodies and Special Procedures, in particular the HRCttee, the CESCR and the SPT
- NHRI engagement at the UPR is likely to increase in importance as more optional protocols are attached to international treaties obligating states to establish domestic implementation mechanisms as pioneered in the OP-CAT (Part IV) and the CRPD (article 33).