The Universal Periodic Review – Analysis and Evaluation of its procedures and value with consideration to Right to Health

The Universal Periodic Review – Analysis and Evaluation of its procedures and value with consideration to Right to Health

27 Apr, 2023

The Universal Periodic Review – Analysis and Evaluation of its procedures and value with consideration to Right to Health

Author – Pranjal Kumar, Student at Jindal Global Law School, OP Jindal University

Abstract

The paper aims to give a nuanced understanding of how the UPR process works in its reality. The UPR process involves consideration for how the engagement of international organizations should be kept up for consideration without adding a certain level of bias in the understanding of Human rights. The appropriate method of engaging in this conversation of evaluating the UPR process will involve a dualist consideration. The paper will firstly analyze the process that is involved in UPR in terms of steps and content. The aim would be to ensure that an engagement of various organizations would not involve just a textual understanding of the UPR process but to provide what is included in the substance of the UPR process. The idea will be to analyze the merits of the UPR process in terms of ideas that it propagates in its process itself and this will be done in relation to Right to Health. The Right to Health will be considered in relation to how the UPR process has left gaps in its implementation of how the process should engage with International organizations. The paper will aim to give a multi-faceted evaluation of how the UPR process works.

Introduction

The idea of the universal periodic review is simple in its core understanding – how should the human rights model be upheld in terms of its establishment in various jurisdictions. The UPR process is check listed through two individuals’ forces working at the same time – the state under review and the UN bodies and countries that are involved in the evaluation of the particular state. The state under review is required is typically the state that is considered under lens of analysis and evaluation. The analysis and evaluation involves the assessment of the human rights conditions of the 193 WTO members present for the analysis of their respective current human rights status. This review process officially started in 2006, where the approach was to confirm whether or not countries were adherent to the requirement and obligations of human rights under their own national and international covenants. The idea is to provide states with the opportunity to showcase the actions they have taken to ensure the promotion of human rights under their jurisdiction and what challenges they have overcome or are still left to overcome with. The aim here is to provide an understanding of the process that is involved in the analysis and evaluation of the human rights situation in a particular state and its effectiveness and limitations. The process itself will be reviewed as a whole and there will be consideration given to India’s third cycle report that it presented in 2017. UPR has been praised for its highly rigorous methodology for approaching a broad-based analysis for the current status of human rights in a particular state while answering the concerns of the fellow WTO members.

The Universal Periodic Review System of the UN – Process

The UPR process involves an extensive amount of collaboration between various departments of the review process. Under the process itself, the flow of the information provided by the State Under review (SUR) should be accurate to the extent that any external information provided to the reviewing should not find any discrepancies. The issue with the whole process is how much information is relevant for the purpose of giving a thorough evaluation of the human rights situation. There can be multiple elements that could be made relevant for human rights discourse and assessment but still provide nothing substantial in terms of the state of human rights. There should be a multi-faceted analysis of the standard that should be set for member states on the basis of which they would be evaluated. The current process under UPR works as the following – National Report – Overview, Information gathered from treaty bodies, special procedures and UN agencies such as UNDP and UNICEF, Summary of Stake-holder reports, Role of questions submitted in advance, Report of the working group, “Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review” – if suggestions were adhered to, Decision of the outcome. The national report is talking about the SUR utilizing all its resources in providing an overview of what the achievements of the state are in relation to human rights. This involves anything that the state has done to promote, institute, legalize, enforce, commemorate, adhere to human rights. The treaty bodies are the crucial, objective instruments for the analysis of human rights conditions for the SUR. There is no scope of bias present here as their own involvement in the whole process is regulated by the workings of the various UN based agencies. Any other stakeholder that might have any involvement in the maintenance and exposure of the reality of the human rights situation for a particular SUR can also submit their report. There can be states that submits questions in advance that need to be addressed by the SUR. The next part of the process is the most crucial – the adherence to regulations, suggestions made under the previous cycle, commitments made – are evaluated and considered. After this, the decision is given whether the SUR has adhered to maintaining a certain standard of human rights jurisprudence.

 Ashwath Komath, under their article also prescribed the manner in which the UPR process in detailed in its various stages. He stated in his article that – “Resolution 5/1 details the process of the UPR in its annex under the title of ‘Modalities’. The process begins with the appointment of a troika of countries, which form the rapporteurs of a working group intended to conduct the review process of the State-under-Review (SuR). States with specific questions to the SuR field them to the troika who then classify them and then pose it to the SuR. The process of documentation begins when the SuR submits a national report dealing with the questions raised and details the progress of the implementation of the various treaties it has signed. The Office of the High Commissioner for Human Rights files a report with information from different treaty bodies, special procedures and other relevant UN Documents. The Office of the High Commissioner on Human Rights (OHCHR) also submits a report by inviting relevant stakeholders to send their views on the SuR human rights record. The Review itself lasts about 3.5 hours where the SuR presents its national report and their responses to the questions posed by other states, which were earlier submitted in writing. This presentation is then followed up by an interactive dialogue where other states ask questions and make comments on the presentation. The SuR also makes responses and comments in the interactive dialogue.”[1] Through this, the understanding of the procedure involved under the whole UPR is thoroughly extensive and evaluative. The idea is to provide a chance to the agencies and various other organizations that are involved under the idea of protecting human rights and its violation.

“The UPR is a Peer-Review Process. Here, member states make recommendations to the SuR. There is an emphasis on the equality of states, and there is no enforcement of outcomes generated by the process of the UPR from an external authority. In the national reports of several SuRs, states emphasise that they wish to open themselves to the feedback of other states on their human rights records to learn and improve. The UPR emphasises a cooperative approach to reviewing human rights. The UPR was meant to universalise compliance with various instruments of human rights and, in that regard, help in capacity building, share best practices and, in general, avoid the kind of hostility generated when states are singled out for human rights violations. Given that more pressing situations of human rights are taken up as separate and specific agenda items in the UNHRC’s sessions (regular, intersessional, or emergency), issues in the UPR tend to be more general and focused on the long term, rather than immediate, crises of human rights. It is the responsibility of the SuR to implement the recommendations of the Review, and they may do so with the help of the UN system, civil society, national human rights institutions, and other stakeholders.”[2] The simple contention here is that the UPR process if firstly, a collaborative effort and approach, which makes it easy for various human rights to be protected through a combined effort of various states. Secondly, the violation of a or multiple certain human rights should not be considered a demeaning character of the SUR inability to adhere to human rights obligations. The approach rather is to provide assistance to the SUR to ensure that it can fulfil its requirements under national and international covenants -and standards.

Critique to the UPR Process

There is also a thorough analysis provided by Judith Bueno De Mesquita, on where does the UPR process find its value when considering the right to health under various states and their practices. The analysis provided by Judith Bueno, considers the merits of the UPR process itself while also delving into the content of its procedural merits and applicability. The merits of the UPR process need to be given consideration here, while at the same time, considering whether or not they provide substantive incentive for the SUR to provide information that is true in its core and content. The article by Judith Bueno states that – “The UPR has been described as “one of the most important innovations of the [Human Rights Council].” The procedure offers some unique opportunities for the right to health. Three principal features—the first two being undoubtedly valuable and the third of more debatable merit—differentiate it from other international review mechanisms. First, the UPR has a universal reach. In establishing the procedure, the General Assembly noted that the UPR would review the “fulfilment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States.” All UN member states were reviewed during the first two UPR cycles and almost all submitted their national reports for review on time. By contrast, international human rights treaties enjoy widespread, but not universal, ratification, and treaty bodies’ oversight extends only to states parties. Moreover, states’ periodic reports required under the treaties are often delayed or sometimes not submitted at all.”[3] The idea of universality becomes key in the understanding of how the UPR can help keep a check of the human rights situation in various countries. The universal aspect to keeping the rights in check gives credit to how the UPR can involve various types of stakeholders and groups in the process of evolving and evaluating the human rights conditions for a particular SUR. One must, however, consider whether this approach could become too orientalist and westernized when imposing a standard of upholding human rights contentions on lower developing countries. The monopoly that western powers enjoy in terms of influencing the standards of conduct is a massive drawback for setting a universalist standard of human rights model.

The UPR process is not involved in a specific area of human rights – whether it be a social, economic, political etc. The review is based on contending all those that the members are party, and the reviewing board finds relevant. The SUR should ensure that it provides a thorough report of all those human rights sectors that would be relevant. There is also consideration for the fact that there are international goals and values that have to be fulfilled by member states to particular treaties and agreements. The UPR process helps in keeping a check on the collective effort of each SUR that might be relevant. Judith Bueno is his article consider this in relation to SDGs – Sustainable Development Goals – “Second, the UPR’s review of each state extends to all rights, as it is based on comprehensive protections contained in the UN Charter, the Universal Declaration of Human Rights, international treaties ratified by the state in question, and voluntary commitments and pledges. This inclusive approach again contrasts with reviews by other mechanisms, which focus on selected rights (for example, the Committee on Economic, Social and Cultural Rights), situations (for example, country Special Rapporteurs), or particular groups (for example, the Committee on the Rights of the Child). A further benefit of this approach is that it allows the procedure to consider rights on the ground in a joined-up way. These two features mirror attributes of the SDGs, which also extend to all countries and encompass wide-ranging and mutually reinforcing issues. Indeed, the SDGs share profound connections with the human rights standards that are the subject of UPR scrutiny: over 90% of SDG targets can be linked to international human rights and labor standards, and, moreover, the SDGs are formally grounded in international human rights law. Recognizing these synergies, the UPR has explicitly addressed the SDGs in some of its recommendations, with many more having implicit relevance. But more than this, it has also been suggested that the UPR can support the SDGs in other ways. For example, the Human Rights Council president has suggested that it could enhance accountability in the context of the formal international SDG review procedure overseen by the High-Level Political Forum on Sustainable Development by serving as a “comprehensive source of information,” and that countries could themselves use UPR outcomes when preparing their voluntary presentations for this forum.”[4] The idea of implementing other considerations under the UPR gives the whole process more merit as it tries to not only consider human rights situation on the surface level details but also bring about making a consideration of how the SDGs can be given merit in terms of whether or not they have fulfilled.

The idea of cooperation and willingness between various states to give time to the UPR process shows the manner in which the state’s are willing to be an asset towards considering the human rights situation in various jurisdictions. The article by Bueno states that – “A third defining feature is the state-to-state peer-review format of the procedure, which is intended to cultivate a spirit of cooperation. This is markedly different from other UN human rights procedures, which are carried out by independent experts. Though the UPR is meant to be conducted in an objective, non-politicized manner, its composition inherently renders it more vulnerable to politicization than these other procedures. Indeed, politics have been found to affect which states give recommendations to each other; the topic and framing of recommendations; and whether states accept recommendations: this interferes with the quality and credibility of the review. However, the political dimension is also seen by some as an asset. A key tenet in international relations is that states tend to listen to one another. The influences of peer pressure and a desire to earn peer respect are two suggested forces driving engagement by states in the UPR. States often take reporting more seriously under the UPR than by treaty bodies.”[5] The drawback of the UPR process involves in the politization of the review process, as it does not involve independent experts acting outside the boundaries of their nation-state. The reviewing party here is a composition of states that could have political incentive to either hinder or present an advantageous state of review for the SUR. This could interfere with the objectivity and non-biasness of the report, especially with developing countries trying to gain an international position of acclamation. The involvement of multiple states can incentivize the SUR to be cooperative towards this process to improve their relations with other countries.

The involvement of the relevant stakeholders and international organisations should be more prominently present at the national level for the SUR. Typically, the SUR will provide a national report that gives an understanding of its current human rights situation. This national report is independent of any other organizations consideration and sets out the achievements and improvements that the SUR has made since the last recommendation and UPR. SUR will have to ensure that this report is accurate to the extent that it does not provide false information of how human rights function under a particular state. The article by Judith is an excellent consideration for how right to health and the national report of the SUR should be considered under a more interdisciplinary approach – “The UPR is meant to be based on information contained in review documents. A logical assumption is that recommendations reflect the right to health issues that they raise. Indeed, these reports are already known to be important determinants of recommendations. To test this assumption in relation to the right to health, the Human Rights Centre Clinic and World Health Organization carried out a sample analysis of review documents from eight countries and the corresponding right to health recommendations. The review documents for these countries also demonstrated skewed attention to right to health issues. Those issues that received high levels of attention, such as gender-based violence and maternal and child health, went on to receive a high, and sometimes disproportionately high, number of recommendations, while those issues that received limited attention received a much lower, and sometimes disproportionately low, number of recommendations. The content of review documents is influenced by a range of factors, including, but not limited to, the human rights situation on the ground. A state’s own national report, which is understood to be the most influential input into the process, is meant to be objective and reliable and prepared through a multi-stakeholder process. Yet in practice, national reports often dwell on progress while glossing over obstacles. Many state reports are prepared by the government, sometimes principally by the ministry of foreign affairs, with little consultation within or outside government bodies. This does little to optimize an accurate representation of the right to health situation. Likewise, in terms of the UN report, a key relevant right to health stakeholder, the World Health Organization, has had limited engagement with the UPR process at the national level. Causes may include the organization’s political member state structure and close working relationship with ministers of health; a lack of familiarity with human rights among its staff, who are more often public health and medical professionals; and a perception within the World Health Organization that the UPR is not effective in promoting health.”[6]

The improvement that can be made at this stage of the UPR jurisprudence is twofold. Firstly, the engagement of the UN agencies should be more proactive in terms of giving substance to the UPR process. Secondly, major stakeholders should also be engaged when considering the outcome of how the UPR required national report is established. The involvement of the UN agencies should be incentivized by their involvement at the local level of conduct for the SUR. The involvement of major stakeholders – such as the WHO or the World Medical Association, would help in providing a thorough understanding of where the Right to Health stands on a ground-level reality of national correspondence and what standards are marched out for international developments and norm. The suggestion laid out here is quite clearly prescribes the manner of assessment that should be involved for each improving the UPR process – “If the UPR is to make a positive contribution to the right to health on the ground, health stakeholders must be more actively engaged in the UPR process. In some quarters, there are positive existing practices for stakeholder engagement among states, international organizations, and civil society. For example, states are being encouraged to develop national mechanisms for reporting and follow-up, one purpose of which is to enhance engagement and communication between ministries in the UPR process. The UN Secretary-General has requested UN that agencies deepen their participation in the UPR, including with a view to supporting links between the UPR and the implementation of the SDGs. Indeed, the World Health Organization has begun to engage with the UPR at headquarter level, even if not yet routinely at the national level. Some nongovernmental organizations working on health and human rights issues have turned their advocacy efforts away from the UPR, in part because the mechanism has failed to deliver recommendations on issues of concern. In other areas, notably sexual and reproductive health, civil society engagement has been more extensive, whilst the UNFPA has also engaged extensively on these issues. The involvement of health stakeholders during the lead-up to a state’s review will not only provide expertise to improve the quality of information submitted but also optimize conditions for the implementation of recommendations. Although the implementation of recommendations is not the primary focus of this article, the patchy record of implementation of UPR recommendations is well documented, even if there is some suggestion that recommendations on the right to health have a better implementation record than some other rights. The engagement of health stakeholders in submitting information provides a natural entry point to their engagement at a later date in supporting implementation.”[7] The idea is to provide a consideration at national, international, and procedural level of assessing human rights situation for the SUR. The SUR should be able to recognize the manner in which international organizations can help in promoting a more thorough and clear depiction of the human rights situation in a particular state. The national report system is based on a very nuanced deliberation of how a particular SUR should be involved in considering human rights ideals. The entire UPR process is very distinguishable for its approach in accountability and engagement between various state members but still lacks the incentive for engaging with independent and international organizations that could provide a more relevant report for analysis.

Conclusion

The UPR process as a whole is considered to be a major step towards reforming the manner in which human rights conditions are evaluated and analysed by the WTO in its fullest form. The approach has been widely appreciated by various international agencies that cater to the needs of evolving and improving human rights situations. The jurisprudence behind this improvement has been to make sure that human rights are realized to their fullest core and extend. The current UPR process is multi-faceted in the sense that it provides understanding to three contentions – the procedural requirements, the substantive requirements and the engagement of international organizations and stakeholders. The UPR process, although has been very constructive and developing when it is considered as an instrument keeping a universalist and accountability approach towards human rights. There are some gaps still present in the whole process that can be solvable with the appropriate engagement of international standard – when international organizations are involved. The issue of how the Right to Health can be resolved can be easily implemented by the engagement of various international organizations and agencies that could provide their own analysis of human rights conditions. This could help in the development of the UPR process but also provide better conditions for the development of human rights at the national level, especially for developing countries.

Bibliography

  1. Ashwath Komath, State Behaviour at the Universal Periodic Review: An Examination of India’s Third Review at the United Nations Human Rights Council, 76 India Quarterly 185 – 206 (2020).
  2. Judith Bueno De Mesquita, The Universal Periodic Review: A Valuable New Procedure for the Right to Health?, 21 Health and Human Rights 263-278 (2019).

[1] Ashwath Komath, State Behaviour at the Universal Periodic Review: An Examination of India’s Third Review at the United Nations Human Rights Council, 76 India Quarterly 188 (2020).

[2] Id, 189.

[3] Judith Bueno De Mesquita, The Universal Periodic Review: A Valuable New Procedure for the Right to Health?, 21 Health and Human Rights 263-278 (2019).

[4] Id.

[5] Id.

[6] Id.

[7] Id.