Human Rights and the UN Universal Periodic Review Mechanism 9781003855873, 9781032524184, 9781032542614, 9781003415992

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‘The UPR Academic Network’s collection explores the UPR’s evolution over three cycles, its role in strengthening democratic governance, and fostering States’ accountability. A must-read for human rights advocates seeking to use this international mechanism to advance the promotion and protection of human rights for all segments of society domestically’. Mona M’Bikay, Executive Director, UPR Info ‘This research and academic analysis on the UPR Mechanism’s effectiveness is most welcome, in order to keep improving this particular UN tool, of universal reach and general acceptance or legitimacy, which necessarily complements the national and international efforts by different stakeholders, not only the States, and the work of regional human rights systems, when available. The national integral focus of the UPR is a mobilizing force in itself, that of course needs to be matched with the good faith and political will of States, to be more effective’. Ambassador Laura Dupuy Lasserre, Former President of the UN Human Rights Council (2011–2012)

Human Rights and the UN Universal Periodic Review Mechanism

The Universal Periodic Review (UPR) is a peer-review mechanism, reviewing all 193 UN Member States’ protection and promotion of human rights. After ten years of the existence of the UPR mechanism, this collection examines the effectiveness of the UPR, theoretical and conceptual debates about its modus operandi, and the lessons that can be drawn across different regions/states to identify possible improvements. The book argues that despite its limitations, the UPR mechanism with its inclusive, cooperative, and collaborative framework, is an important human rights mechanism with the potential to evolve over time into an effective cooperative tool for monitoring human rights implementation. Divided into three parts, the first part focuses on exploring a variety of theoretical approaches to understanding the UPR mechanism. The second part examines specific human rights themes and the relationship between the UPR mechanism and other international mechanisms. Finally, the third part questions implementation and the ways in which states/regional groupings have engaged with the UPR mechanism and what lessons can be learned for the future. The volume will be a valuable resource for researchers, academics, and policymakers working in the area of international human rights law, international organizations, and international relations. We would like to acknowledge the UPR Academic Network (UPRAN) for bringing together the experts on this project and the University of Stirling for providing funds to facilitate open access dissemination for parts of this output. Damian Etone is Senior Lecturer in International Human Rights Law at the University of Stirling. He is Director for the MSc Programme in Human Rights and Diplomacy run in partnership with the United Nations Institute for Training and Research (UNITAR). Amna Nazir is Reader in International Human Rights Law and Associate Director of the Centre for Human Rights at Birmingham City University. She also serves as a trustee for the United Nations Association – UK. Alice Storey is Senior Lecturer in Law and Associate Director of the Centre for Human Rights at Birmingham City University, where she also leads the UPR Project at BCU.

Human Rights and the UN Universal Periodic Review Mechanism A Research Companion

Edited by Damian Etone, Amna Nazir and Alice Storey

First published 2024 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2024 selection and editorial matter, Damian Etone, Alice Storey and Amna Nazir; individual chapters, the contributors The right of Damian Etone, Amna Nazir and Alice Storey to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Etone, Damian, editor. | Nazir, Amna, editor. | Storey, Alice, editor. Title: Human rights and the Universal Periodic Review mechanism : a research companion / edited by Damian Etone, Amna Nazir, and Alice Storey. Description: New York : Routledge, 2024. | Includes bibliographical references and index. Identifiers: LCCN 2023042791 | ISBN 9781032524184 (hardback) | ISBN 9781032542614 (paperback) | ISBN 9781003415992 (ebook) Subjects: LCSH: Human rights. | International law and human rights. | Human rights monitoring. | United Nations Human Rights Council. | United Nations—Commissions. | United Nations. General Assembly. Declaration on the Rights of Peasants (2017 December 18) Classification: LCC K3240 .H8548 2024 | DDC 341.4/8—dc23/ eng/20231003 LC record available at https://lccn.loc.gov/2023042791 ISBN: 978-1-032-52418-4 (hbk) ISBN: 978-1-032-54261-4 (pbk) ISBN: 978-1-003-41599-2 (ebk) DOI: 10.4324/9781003415992 Typeset in Galliard by Apex CoVantage, LLC

Contents

List of Acronyms List of Contributors Foreword Introduction

ix xi xvii 1

DAMIAN ETONE, AMNA NAZIR, AND ALICE STOREY

PART I

Theoretical and Conceptual Approaches to Understanding the UPR Mechanism11   1 The Universal Periodic Review as an Evolving Process: Examining the Path of Development

13

KATHRYN MCNEILLY

  2 The Universal Periodic Review as Utopia

35

AMNA NAZIR, ALICE STOREY, AND JON YORKE

  3 What Is the UPR? Thinking About the UPR as a Source of International Law

62

FREDERICK COWELL

  4 Putting Down Roots: Analysis of UPR Recommendations in the First Three Cycles EDWARD R. MCMAHON AND TOMEK BOTWICZ

84

viii  Contents PART II

The Relationship Between the UPR and Other Human Rights Mechanisms111   5 Searching for Recommendation Alignment Across UN Human Rights Bodies

113

ELVIRA DOMÍNGUEZ-REDONDO AND RHONA SMITH

  6 The Universal Periodic Review and Transitional Justice

147

DAMIAN ETONE

  7 Universal Periodic Review Prospects for Promoting Support for the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP)

173

LOUISA ASHLEY

PART III

Assessing State and Regional Engagement With the UPR Mechanism197   8 Still a ‘Mutual Praise Society’? The African Group at the Universal Periodic Review

199

EDUARD JORDAAN

  9 The Significance of the UPR in the Absence of a Regional Human Rights System: The Case of the Asia Pacific

215

FIONA MCGAUGHEY, AMY MAGUIRE, NATALIE BAIRD, JAMES GOMEZ, AND ROMULO NAYACALEVU

10 Unpacking the Enigma of Reporting Under the Universal Periodic Review: The Case of Three Southeast Asian Countries

248

KAZUO FUKUDA

11 Navigating Devolution at the UPR: The Case of the United Kingdom

277

MICHAEL LANE

Index299

Acronyms

CAT Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment CED/CPED International Convention for the Protection of All Persons from Enforced Disappearance CEDAW Convention on the Elimination of All Forms of Discrimination Against Women CRC Convention on the Rights of the Child CRC-OPCP Optional Protocol to the Convention on the Rights of the Child CRPD Convention on the Rights of Persons with Disabilities CRPD-OP Optional Protocol to the Convention on the Rights of Persons with Disabilities CSOs Civil Society Organisations CtAT Committee against Torture CtED Committee on Enforced Disappearance CtEDAW Committee on the Elimination of All Forms of Discrimination Against Women CtERD Committee on the Elimination of All Forms of Racial Discrimination CtESCR Committee on Economic, Social and Cultural Rights CtRC Committee on the Rights of the Child CtRMW Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families CtRPD Committee on the Rights of Persons with Disabilities Cycle 1 First Cycle of the Universal Periodic Review Cycle 2 Second Cycle of the Universal Periodic Review Cycle 3 Third Cycle of the Universal Periodic Review Cycle 4 Fourth Cycle of the Universal Periodic Review HRC Human Rights Council HRCt Human Rights Committee ICCPR International Covenant on Civil and Political Rights ICERD International Covenant on the Elimination of All Forms of Racial Discrimination

x  Acronyms ICESCR International Covenant on Economic, Social and Cultural Rights ICESCR-OP Optional Protocol to the International Covenant on Economic, Social and Cultural Rights ICRMW International Covenant on the Protection of the Rights of All Migrant Workers and Members of Their Families NHRI National Human Rights Institutions OECD Organization for Economic Co-operation and Development OHCHR Office of the High Commissioner for Human Rights OPCAT Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment SDG Sustainable Development Goals SuR State under Review UDHR Universal Declaration of Human Rights UNDP United Nations Development Programme UNDRIP United Nations Declaration on the Rights of Indigenous Peoples UNDROP United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas UNESCO United Nations Educational, Scientific and Cultural Organization UNHCR United Nations High Commissioner for Refugees UPR Universal Periodic Review ICTY International Criminal Tribunal for the Former Yugoslavia ICTR International Criminal Tribunal for Rwanda IHL International Humanitarian Law Kalomoh Report Report of the assessment mission on the establishment of an international judicial commission of inquiry for Burundi ACHPR African Commission on Human and Peoples’ Rights CPA Comprehensive Peace Agreement SPLM Sudan People’s Liberation Movement ARCSS Agreement on the Resolution of the Conflict in the Republic of South Sudan JMEC Joint Monitoring and Evaluation Commission SMART Specific, Measurable, Achievable, Result-Oriented and Time-Bound ICC International Criminal Court TNCs Transnational Corporations TWAIL Third World Approaches to International Law FSPI Federation of Indonesian Peasant Unions EU European Union FAO Food and Agricultural Organisation of the United Nation WIPO World Intellectual Property Organization

Contributors

Dr Louisa Ashley’s academic research focuses primarily upon international human rights. Her PhD evaluates the Universal Periodic Review (UPR) in relation to states in crisis. As well as writing on the UPR, Louisa’s published research addresses the human rights impact of unilateral economic sanctions and human rights in times of conflict and post-conflict. Louisa has delivered conference papers in the United Kingdom and overseas. Prior to joining higher education in 2008, Louisa had trained as a solicitor with United Kingdom corporate law firm Walker Morris LLP joining the firm’s employment group upon qualification. As an employment lawyer, Louisa advised individual and corporate clients on a range of contentious and non-contentious matters and represented claimant and respondent clients at tribunal. Before becoming a lawyer, Louisa was one of the founders of award-winning, Leeds-based Unlimited Theatre and subsequently chaired its Board of Trustees until 2016. Natalie Baird is Associate Professor at the University of Canterbury Faculty of Law and Co-Director of Postgraduate Studies and LLM (International Law and Politics). Her research interests include international human rights, refugee law, Pacific legal studies, and the scholarship of teaching and learning. In the human rights field, her research focuses on the relationship between international human rights law and mechanisms and domestic legal systems in New Zealand and the wider Pacific region. Natalie is a former member of the Amnesty International Aotearoa New Zealand Governance Team and a current member of the New Zealand Human Rights Review Tribunal. Tomek Botwicz is an undergraduate student studying mathematics and philosophy at the University of Vermont, with a particular focus on harnessing information technologies to further human rights and civilizational development. He is also a part of the Lawrence Debate Union, the University of Vermont’s nationally-recognised debate team, on which he primarily competes in social justice and British parliamentary formats. Through the Honors College and Catamount Innovation Fund, Tomek has researched emerging technologies and ideologies,

xii  Contributors focusing on the climate crisis, the future of democracies, and new political economies. Through his work with the UPR, he has been able to learn and contribute to a sui generis mechanism for holding human rights violators accountable. Dr Frederick Cowell is Senior Lecturer in Law at Birkbeck. His research focus on the interpretation and enforcement of international human rights law and treaty withdrawal. Previously he was an advisor for an NGO helping civil society groups with UPR submissions. Elvira Domínguez-Redondo is Professor in Law at Kingston University, United Kingdom. She has been a visiting scholar at Columbia University (USA) and University Alcalá de Henares (Spain). Prof. DomínguezRedondo has held different academic positions at Middlesex University (UK), Transnational Justice Institute (UK), the Irish Centre for Human Rights (Ireland), and University Carlos II (Spain). She has worked as a consultant for the Office of the High Commissioner for Human Rights (Switzerland). She is an advisory group member of the Geneva (Switzerland)-based think-tank Universal Rights Group. Dr. Domínguez-Redondo is the author three monographs, In Defense of Politicization of Human Rights (2020), Minority Rights in Asia (with Prof. J Castellino, 2006), and Public Special Procedures of the UN Commission on Human Rights (2005). She has edited three books and authored a wide range of publications on international law and human rights. Dr Damian Etone is Senior Lecturer in International Human Rights Law at the University of Stirling. He is Director for the MSc Programme in Human Rights and Diplomacy run in partnership with the United Nations Institute for Training and Research (UNITAR). Damian’s current research expertise includes international law, human rights implementation, UN human rights bodies, African human rights system, and transitional justice. Damian is the author of the book The Human Rights Council: The Impact of the Universal Periodic Review in Africa (Routledge 2020) that examined the engagement of African states with the Universal Periodic Review (UPR) mechanism. This book offered the first detailed analysis of the effectiveness of African states’ engagement with the UPR mechanism from 2008–2019. Kazuo (Kaz) Fukuda is Associate Professor at Kansai Gaidai University in Osaka, Japan. Prior to pursuing an academic career, Kaz worked for the United Nations Development Programme in Lao PDR in charge of the rule of law portfolio and was involved extensively in the UPR process for nearly five years. He is the author of Human Rights Council’s Universal Periodic Review as a Forum of Fighting for Borderline Recommendations? Lessons Learned from the Ground (NJHR, Vol. 20, No. 2, 2022). He received his PhD in law and democracy from the Maurer School of Law, Indiana University in the United States.

Contributors  xiii James Gomez is Regional Director at Asia Centre, where he provides strategic oversight for its development and regionalization. He currently oversees the Centre’s operations in both Thailand and Malaysia and is leading the partnerships for the Centre’s many activities in other parts of the region. He represents the Centre in media and public speaking engagements and builds relationships with key stakeholders around the world. James is a senior academic and university administrator at public and private universities, research institutes, and think tanks. James has worked at inter-governmental organisations, including the International Institute for Democracy and Electoral Assistance, and international NGOs such as Friedrich Naumann Foundation and Amnesty International, where he managed global and regional teams on projects related to democracy and human rights. He has written extensively on topics such as democracy, civil society, human rights issues, and the role of technology in politics in Singapore and the broader Southeast Asian region. Eduard Jordaan is Associate Professor in the Department of Political and International Studies at Rhodes University where he mostly teaches on human rights and international relations. His articles have appeared in journals such as African Affairs, Global Governance, Human Rights Quarterly, International Studies Review, Journal of Human Rights Practice, and Review of International Studies. He is the author of South Africa and the UN Human Rights Council: The Fate of the Liberal Order (Routledge, 2020). Michael Lane is Lecturer in Law at the University of Worcester. Michael teaches on various undergraduate and postgraduate law modules and supervises on the law PhD programme. Michael’s PhD, funded by UK Research and Innovation, explored the United Kingdom’s engagement with the UN’s Universal Periodic Review (UPR). Michael’s research has informed civil society organisations’ engagement with the UPR, reports to the United Nations, a series of capacity building events with the Equality and Human Rights Commission, and advice to Parliament’s Joint Committee on Human Rights on its plans to scrutinise the UK’s UPR. His work has featured in the Nordic Journal of Human Rights, Human Rights Law Review, and the Journal of Human Rights Practice. Amy Maguire is Associate Professor in International Law and Human Rights and Deputy Head of School (Research Training) at the University of Newcastle Law School. She is the founding and co-director of the Centre for Law and Social Justice, and the top-ranked author in international law and human rights for The Conversation. Her research concerns public international law, with particular focus on human rights institutions, self-determination, Indigenous rights, climate change, refugees and asylum seekers, and the death penalty. Until 2018, she served as co-chair of the Indigenous Rights Sub-Committee of Australian Lawyers for Human Rights,

xiv  Contributors where she worked with lawyers and students to promote the recognition and achievement of substantively equal rights for Indigenous peoples in Australia. Fiona McGaughey is Associate Professor at the University of Western Australia Law School with a background in not-for-profit research and policy roles. She teaches international human rights law and co-ordinates the master of international law. Her primary research areas are international human rights law, United Nations bodies and the role of non-governmental organisations, human rights pedagogy, and higher education. Fiona has received grant funding for research on modern slavery and co-founded the UWA Modern Slavery Research Cluster in 2017. Fiona has published widely in leading Australian and international journals and her monograph Non-Governmental Organisations and the United Nations Human Rights System was published by Routledge in 2021. Edward R. McMahon EdD is Visiting Associate Professor in the Middlebury College Political Science Department. He also holds a joint appointment as Adjunct Associate Professor in Community Development and Applied Economics, and Political Science, at the University of Vermont. He previously served as Dean’s Professor of Applied Politics and Director of the Center on Democratic Performance at Binghamton University. From 1989–1998, he directed African programs at the National Democratic Institute for International Affairs. He previously spent ten years as a foreign service officer with the U.S. Department of State. Dr. McMahon is a board member of UPR-Info, a human rights organization based in Geneva, Switzerland. He has consulted for numerous organizations in the international development field, including the Carter Center, USAID, the UN Development Program, the World Bank, and the International Foundation for Electoral Systems. Dr. McMahon has co-authored or co-edited three books and has contributed many journal articles and book chapters on a range of international governance and development issues. Kathryn McNeilly is Professor of Law at Queen’s University Belfast School of Law. She is an expert in the areas of international human rights law and international legal theory. Professor McNeilly’s recent work has explored topics of international human rights monitoring, international legal history, international legal institutions, and the connection between international human rights law and time. Funding for her research includes award of a Leverhulme Research Fellowship (2019–2020) to undertake research on human rights monitoring, with a focus on the United Nations Universal Periodic Review. She is a member of the UKRI Talent and AHRC Peer Review Colleges, the Royal Irish Academy’s Ethical, Political, Legal and Philosophical Studies Committee, and an editorial board member of leading journals, including Human Rights Law Review.

Contributors  xv Romulo Nayacalevu is a PhD scholar at the Australian National University and director for the R2P Pacific Project launched by the Asia-Pacific Centre for the Responsibility to Protect. Romulo is an experienced human rights practitioner, trainer, lawyer, and advisor to Pacific Island governments and NGOs, active in advocating for human rights promotion and protection, including the ratification of the Rome Statute among Pacific states, monitoring human rights, and strengthening legislation to protect civil freedoms. He was the program manager for the Governance and Legal Affairs program with the Melanesian Spearhead Group (MSG) Secretariat in Vanuatu. Before then, he was also a senior human rights adviser with the Pacific Community, supporting 14 Pacific governments on a range of human rights issues. He spent over five years with the Office of the United Nations High Commissioner for Human Rights: Pacific Regional Office and about three years in private practice in Suva. Dr Amna Nazir is Reader in International Human Rights Law and Associate Director of the Centre for Human Rights at Birmingham City University. She also serves as a trustee for the United Nations Association – UK. Her research focuses on the UPR mechanism and Islamic law, both as separate and interlinked areas, exploring pertinent human rights issues such as capital punishment and freedom of religion. Amna actively participates in the UPR through submission of stakeholder reports to selected states’ review and engages in UPR Pre-sessions to directly advocate to governments on their countries’ human rights landscapes. She has undertaken extensive consulting and policy work with the UN, governments, civil society, and academic institutions. Most recently, she has been ranked in the top two candidates for appointment by the UN Human Rights Council for the role of special rapporteur on freedom of religion or belief. Dr Rhona Smith is Professor of International Human Rights at Newcastle University in the UK. She has worked on international human rights through diverse capacity building projects within academic and justice sectors, as well as by researching various aspects of human rights including the UN institutional framework. Dr Alice Storey is Senior Lecturer in Law and Associate Director of the Centre for Human Rights at Birmingham City University, where she also leads the UPR Project at BCU. Her research focuses on the UPR mechanism and international human rights, predominantly from the perspective of women’s rights and the abolition of capital punishment. Through the UPR Project, Alice has engaged in practice with the UPR mechanism through submitting stakeholder reports to selected countries’ UPRs and taking part in UPR Pre-sessions, which involves direct engagement with UN government delegations from across the globe and other civil society organisations.

xvi  Contributors Jon Yorke is Professor of Human Rights in the School of Law and the Director of the Centre for Human Rights (CHR). He has advised the United Nations and the European Union, and numerous governments including, Gambia, Myanmar, Spain, and the United Kingdom. He has worked on human rights cases in the United States, Sudan, and the African Commission on Human and Peoples’ Rights, and has submitted amicus curiae briefs in death penalty cases. He has been awarded multiple Foreign, Commonwealth, and Development Office (FCDO) grants for projects to protect human rights in Sudan, and has worked on EU funded projects for the representation of capital defendants in foreign jurisdictions. He has recently worked on The UPR Project at BCU funded project ‘Universal Periodic Review 2022 – Civil Society Engagement’ which focuses upon the United Kingdom’s Fourth Cycle review in the UPR. This project has engaged UK parliamentarians, the legal profession, and CSOs.

Foreword

I welcome the publication of Human Rights and the UN Universal Periodic Review Mechanism: A Research Companion and strongly encourage the further development of the UPR Academic Network, leading to much greater attention to this mechanism also as part of the legal education in law schools. While a peer review – States to States – with a participation rate of 100 per cent – the UPR currently generates some 250 recommendations on average for each State reviewed. Many such recommendations reflect the content of concluding observations of Human Rights Treaty Bodies and recommendations made by Special Procedures Mandate Holders. The difference of UPR recommendations with those of other mechanisms, is that they are vetted by the government and, once accepted, following a process of consultations and sovereign decisions, offer entry points for action by the State – with the support of the UN and the international community. I have no doubt that the UPR is the best way to domesticate international human rights norms and to translate them into consistent laws and practices in a process involving different branches of the government, increasingly Parliament, and multiple other national stakeholders, including local and regional governments, NHRIs and CSOs. At a High-Level panel on the UPR,1 during the last session of the Human Rights Council, on 1 March 2023, the UN Deputy Secretary-General clearly underlined that: The Universal Periodic Review is a powerful and unique mechanism. . . . With the 4th cycle just initiated, the UPR is among our most impactful instruments to promote human rights as part of development efforts. . . . The United Nations Development System and Resident Coordinators stand ready to cooperate with all States in implementing UPR recommendations and together advance the SDGs with human rights at their core. 1 See Human Rights Council, ‘High-level Panel Discussion on UPR Voluntary Funds: Achievements, Good Practices and Lessons Learned Over the Past 15 Years and Optimized Support to States in the Implementation of Recommendations Emanating from the Fourth Cycle’ (1 March 2023) available at www.ohchr.org/en/news/2023/03/human-rights-councilholds-high-level-panel-discussion-voluntary-funds-universal accessed 15 July 2023.

xviii  Foreword With the continuing support of States  – especially following the adoption, by consensus, of resolution HRC 51/30, last October, and the strong partnership with UNDP and the rest of the UN system, the UPR will be better placed to meet the technical cooperation gap and to ensure its consistent use as a problem-solving tool. Indeed, the UPR is the most effective instrument to promote human rights as part of development efforts. The OECD Development Assistance Committee (DAC) Chair, during the same High-Level panel, flagged that DAC members – when making recommendations to States that are of priority for their official development assistance – could facilitate follow up action to their accepted recommendations. Doing so systematically, and other forms of South-South cooperation, could indeed ensure the focus on enhanced implementation of the UPR 4th cycle would result into greater human rights action, everywhere. As UPR recommendations are increasingly becoming part of the United Nations Sustainable Development Cooperation Frameworks (UNSDCFs), and UN Entities are taking responsibility of recommendations falling within their mandate, significant progress is being made on abolishing capital punishment; decriminalizing defamation; passing legislation to protect Human Rights Defenders (HRDs); ending all forms of discrimination; eliminating violence against women, including domestic violence; setting up a National Protection Mechanism (NPM) following OPCAT ratification. These are a few examples of the power of the UPR and I am convinced that more follow up action will emerge by better understanding and better using the UPR mechanism to strengthen protection, advance prevention and ensure the success of the SDGs. 1 May 2023 Gianni Magazzeni,Former UPR Chief, OHCHR, (1 May 2017 to 30 April 2023). Member of the Technical Advisory Group of WHO Universal Health and Preparedness Review (UHPR).

Photo of the Human Rights and Alliance of Civilizations Room, formerly Room XX at the UN Building in Geneva

Introduction Damian Etone, Amna Nazir, and Alice Storey

The Universal Periodic Review (UPR) is an innovative addition to the international human rights monitoring system. It is a state-led, peer-review mechanism employed by the United Nations (UN) Human Rights Council (HRC) with the ‘improvement of the human rights situation on the ground’1 as a major objective. The UPR is designed to be a cooperative and non-­confrontational mechanism that will ‘ensure universal coverage and equal treatment of all States’.2 The UPR is the only global human rights mechanism scrutinising the human rights records of all UN member states. From the inception of the UPR, this seemed utopian. Scholars and practitioners have sought to understand the mechanics of the UPR process and its potential to promote and protect human rights. After three cycles of the Universal Periodic Review (2008–2022) and the fourth cycle ongoing (2022–2027), there are important questions about how the UPR can mature and evolve into a robust international human rights monitoring mechanism. Some of the questions scholars have grappled with include how to conceptualise the UPR, the relationship between the UPR and other human rights mechanisms, state and regional engagement with the UPR, the quality and relevance of UPR recommendations, and opportunities for more effective NGO engagement. This edited collection attempts to engage with some of these issues through sustained analyses of all three cycles of the UPR mechanism. This publication’s origins stem from the first workshop of the UPR Academic Network (UPRAN) held on 15 June 2022. UPRAN was founded by academics at Birmingham City University’s Centre for Human Rights (England) and the University of Stirling (Scotland) in June 2022. UPRAN brings together a global network of researchers and academics working on the HRC’s UPR mechanism to exchange research ideas, consider new perspectives, and explore under-researched aspects of the UPR process. This is the first academic

1 UNHRC, ‘Institution Building of the United Nations Human Rights Council’ HRC Res 5/1, UN HRC OR, 5th sess, Annex [IB] (18 June 2007) UN Doc A/HRC/RES/5/1, annex para 16. 2 ibid para 3. DOI: 10.4324/9781003415992-1

2  Damian Etone, Amna Nazir, and Alice Storey network set up to examine the effectiveness of the UPR mechanism, engage with theoretical and conceptual debates about its modus operandi, identify the lessons that can be drawn across different regions/states, and work to strengthen the research capacity of NGOs and other stakeholder engaging with the UPR mechanism. The work of UPRAN will provide a point of reference from which trends on the operation of the UPR mechanism can be identified and recommendations for improvements can be made. This research companion is by no means exhaustive in examining the potential value of the UPR mechanism and there are several ‘dystopian’ aspects of the review process. In particular, the question of implementation/compliance with UPR recommendations is not significantly addressed in this edited collection and deserves more scholarly engagement. However, this research companion charts new conceptual and theoretical framework for the UPR mechanism (as an evolving process on the path to development; as utopia; as a source of international law). We also examine in this research companion the potential for the UPR to more effectively interact and enhance other human rights mechanisms through (i) a pilot case study of the extent of alignment between UPR recommendations and the recommendations by treaty bodies and special procedures; (ii) how the UPR can support transitional justice processes in post conflict states; and (iii) the prospects for the UPR to promote support for the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP). These are previously unexamined aspects of the UPR mechanism which our research companion brings visibility to. Equally significant in this research companion is the examination of specific states and regional engagement with the UPR, underscoring the significant value it provides to the Asian Pacific region where there’s a lack of a regional human rights system, to devolved governments within states, and unpacking the importance of the substance of the three documents used as the basis for the review. The limitations and challenges the UPR faces are not lost to the authors of this research companion. Several ‘dystopian’ practices in the UPR mechanism are highlighted throughout the collection and the persistent tendency for the review process to devolve into a ‘mutual praise society’ is also noted. This research companion draws on the expertise of an interdisciplinary group of scholars bringing in distinct contributions from multiple disciplinary backgrounds including international law and international politics.3 The Establishment of the UPR The UPR was established in 2006 together with the HRC.4 The establishment and design of the UPR as a mechanism of the HRC can be better understood 3 We would like to thank Rebecca Erekaha for the editorial assistance provided and for helping to maintain UPRAN website at https://upracademicnetwork.org/ 4 UNGA Res 60/251, UN GAOR, 60th sess, 72nd plen mtg, Agenda Items 46 and 120 (3rd April 2006) UN Doc A/Res/60/251 (‘Resolution 60/251’) para 5(e).

Introduction  3 in the context of the failures of the Commission for Human Rights (CHR). The CHR was the predecessor of the HRC established under Article 68 of the UN Charter, entrusted with the international promotion and protection of human rights.5 Whilst the CHR recorded significant achievements in its 60 years of existence, including drafting the UDHR and several international human rights treaties,6 its work subsequently came under severe criticism for lack of credibility and professionalism. These criticisms included selectivity in human rights scrutiny (unequal treatment of states) and acting as a shield masking the human rights abuses of certain member states.7 In 2004, a report by the UN High Level Panel on Threats, Challenges and Change addressed the problems with the CHR and underscored the need for reform.8 It was deemed necessary for the UN to chart a new direction in international human rights monitoring. The UPR represented this new approach. The HRC and UPR were both created under the UN General Assembly Resolution 60/251. The HRC was established as an inter-governmental body within the UN comprising of 47 states and responsible for the promotion and protection of human rights across the globe. It has a mandate to undertake a ‘universal periodic review’ of the human rights performance of all states.9 The UPR was designed to be a cooperative peer-review mechanism that ensures universality and equal treatment in the assessment of the human rights performance of every state, whilst also complementing but not duplicating other human rights mechanisms.10 The foundational principles of the UPR therefore included ‘cooperation’, ‘equal treatment’, and ‘complementarity’.11 The Guiding Principles for the UPR According to Resolution 5/1 of HRC, the UPR process is guided by 13 core principles which are reaffirmed in HRC Resolution 16/21. These are: (a) Promote the universality, interdependence, indivisibility, and interrelatedness of all human rights; (b) Be a cooperative mechanism based on objective and reliable information and on interactive dialogue; 5 United Nations, ‘Charter of the United Nations’ (24 October 1945), 1 UNTS XVI, Article 68. 6 For some detailed analysis of the work of the CHR and the transition to the HRC see Philip Alston, ‘Reconceiving the UN Human Rights Regime: Challenges Confronting the New UN Human Rights Council’ (2006) 7(1) Melbourne Journal of International Law 185; UN General Assembly, ‘Report of the High-level Panel on Threats, Challenges and Change, Entitled “A More Secure World: Our Shared Responsibility”’ (2 December 2004) UN Doc A/59/565, 282–91. 7 ibid. 8 UNGA (n 5), 282–91. 9 UNHRC (n 1). 10 ibid para 3(f). 11 ibid.

4  Damian Etone, Amna Nazir, and Alice Storey (c) Ensure universal coverage and equal treatment of all States; (d) Be an intergovernmental process, United Nations Member-driven, and action-oriented; (e) Fully involve the country under review; (f) Complement and not duplicate other human rights mechanisms, thus representing an added value; (g) Be conducted in an objective, transparent, non-selective, constructive, non-confrontational, and non-politicised manner; (h) Not be overly burdensome to the concerned State or to the agenda of the Council; (i) Not be overly long; it should be realistic and not absorb a disproportionate amount of time, human, and financial resources; (j) Not diminish the Council’s capacity to respond to urgent human rights situations; (k) Fully integrate a gender perspective; (l) Without prejudice to the obligations contained in the elements provided for in the basis of review, take into account the level of development and specificities of countries; (m) Ensure the participation of all relevant stakeholders, including non-governmental organisations and national human rights institutions. The ultimate goal for the UPR is the improvement of the human rights situation at the domestic level. Modalities and Operations of the UPR Process Resolution 5/1 of the HRC, often referred to as the institution-building package, sets out the modalities for the UPR process.12 This was revised in 2011 by HRC Resolution 16/21 which, amongst other things, extended the periodicity of the review from four years to four and a half years.13 The workings of the UPR can be understood in terms of process, documentation, and actors. Process

All UN member states are reviewed every four and a half years. Forty-two states undergo the review each year. Reviews takes place within a working group, where 14 states are reviewed per session and there are three, two-week sessions per year. These sessions include the 47 HRC members, although any member or observer state of the United Nations may also take part in the 12 ibid paras 18–25. 13 UNHRC, ‘Review of the Work and Functioning of the Human Rights Council’ HRC Resolution 16/21, HRC 16th sess, Agenda Item 1 (12 April 2011) UN Doc A/HRC/RES/16/21 (‘Resolution 16/21’) para 3.

Introduction  5

UPR Cycle

process. There are several distinct phases of the review process. These include (i) preparation and collation of reports for review; (ii) review of the state by the HRC Working Group; (iii) issuance of a draft outcome report; (iv) adoption of the final outcome report; and (v) period of implementation. The origins, design, and operations of the UPR process can help shape our conceptualisation of the UPR as a source of international law (Chapter 3), a manifestation of utopia in theory and practice (Chapter 2), and as an ‘evolving process’ underpinned by cyclicality and linearity (Chapter 1). It can also help us understand the potential of the UPR to influence human rights changes in the absence of a regional human rights system (Chapter 9), the opportunities for cooperation between devolved governments at the national level (Chapter 11), but also the tendency to slip into a ‘mutual admiration society’ (Chapter 8). The operation of the UPR for three cycles allow us to question its ability to complement other human rights mechanisms and processes (Chapters 5, 6, and 7).

6  Damian Etone, Amna Nazir, and Alice Storey Documentation and Actors

To ensure the principles of universality, equal treatment, and complementarity, the UPR engages a range of actors within the UPR process, including member states, the Office of the High Commissioner for Human Rights (OHCHR), other UN bodies and agencies, civil society and NGOs, the ‘troika’, and national parliaments. Member states are the core focus of the UPR, whether acting as a State under Review (SuR) or a peer-reviewing state. A SuR is expected to provide key information regarding its protection and promotion of human rights, including an update on implementation of recommendations from the previous cycle, through its submission of a National Report in advance of the review. The SuR will also attend the HRC for the review itself and will respond to/implement recommendations. Peer-reviewing states engage with the SuR by asking questions in advance of the review, engaging with the interactive dialogue during the review (including making recommendations), and commenting on the SuR’s performance during the adoption stage. States also have a role to play in each review as the designated ‘troika’. Three states of the HRC are selected to form the troika to assist in facilitating each state review, supporting activities such as ensuring advance questions are submitted to the SuR and drafting the Report of the Working Group. The OHCHR acts as the ‘Secretariat’ of the UPR. One of its most vital roles is summarising important information that forms two of the three underpinning reports for each review: (i) the Compilation of UN Information and (ii) Summary of Stakeholders’ Information. For the Compilation Report, the OHCHR will identify and summarise pertinent information, recommendations, and concluding observations from other UN bodies and agencies (including the treaty bodies, special procedures, and the UN Secretary-General, etc.). In terms of the Stakeholder Summary, civil society organisations (CSOs) are permitted to engage with the UPR as ‘stakeholders’. This includes allowing stakeholders to submit ‘credible and reliable’ information to a state’s UPR, setting out key themes relating to human rights, highlighting positives, areas of concern, action on recommendations from the previous cycle, and they can also provide their own recommendations. The OHCHR will read all stakeholder submissions for each UPR, synthesising them into the final Stakeholder Summary document, with all individual submissions being available on each state’s UPR webpage. Stakeholders should also be engaged by governments in a ‘national consultation’ when they are drafting the National Report and equally should be involved with the implementation of recommendations, where appropriate. National parliament processes and parliamentarians are also vital to the success of the UPR, and to ensure the mechanism is meeting its mandate to ensure human rights protection and promotion on the ground. Parliament should be involved in the implementation of recommendations, for example, through law reform and drafting and enacting human rights policies.

Introduction  7 Structure of the Book

A central theme running through the chapters of this book is that the UPR, despite its limitations, is an important human rights mechanism with the potential to evolve over time into an effective cooperative tool for monitoring and encouraging implementation of human rights. Contributions in this book are organised into three parts. Part I consists of four chapters focused on a variety of conceptual and theoretical approaches to understanding the UPR. Kathryn McNeilly’s Chapter 1 embraces the conceptual tools of cyclicality and linearity to argue that the UPR is as an ‘evolving process’ propelled by its cyclical activities that places the UPR on a continuous linear path of development. This chapter examines what exactly this evolution has involved across procedural and operational aspects, as well as how it can be understood holistically. It engages with the UPR’s formal procedural modalities – including amendments to timetabling, periodicity, documentation, the Working Group session, and participation of civil society stakeholders – and development of its operation. The chapter provides significant insights into the themes that have characterised the UPR’s evolution across cycles, as well as its status as a process that stands to evolve further. In Chapter 2, Amna Nazir, Alice Storey, and Jon Yorke, introduce a new conceptual lens, viewing the operation of the UPR as a form of translating utopian theory into practice for international human rights. According to the authors, understanding the UPR as a practice of utopia brings together multiple processes (including the treaty bodies, special procedures, UNSDGs, etc.) for promoting global change. They contend that viewing the UPR’s modalities through a utopian lens leads to the recognition of the spectrum of opportunities for the protection of human rights and that, through the UPR, the UN offers a way out of dystopian practices which are curtailing and violating human rights. Frederick Cowell’s Chapter 3 investigates whether the UPR can be understood as an international law-making process. This chapter unpacks some of the assumptions underlying theories on the sources of law and argues that the UPR is a law-making process underpinned by three key features – dialogue, structural reputation, and equality of participation. In Chapter 4, Edward R. McMahon and Tomek Botwicz undertake a quantitative analysis of UPR recommendations across the first three cycles to determine if the trends observed in the earlier cycles have continued and the lessons learned on how the UPR has evolved as a global mechanism for the promotion of human rights. McMahon and Botwicz examine the value of the UPR process against key metrics including the number of recommendations made, state responses to the recommendations, and the action category of the recommendations. They contend that the UPR process overall has substantive merit and that there is a correlation between state adherence to democratic values and a more robust utilisation of the UPR process.

8  Damian Etone, Amna Nazir, and Alice Storey Part II of this collection examines the relationship between the UPR and other mechanisms. In Chapter 5, Elvira Domínguez-Redondo and Rhona Smith explore the congruence, or otherwise, of recommendations made to states by the UPR, treaty bodies, and special procedures. Through a pilotstyle study of five states, the authors examine thematic recommendations each state received during the period of the third cycle of the UPR. They find relative congruence of recommendations, but also some evidence of disparities in the datasets emerged. The authors conclude that a larger-scale project on the alignment of recommendations could provide further insights into the consensus (or otherwise) around specific themes and may be useful in terms of strengthening follow-up and even in prioritising national level implementation efforts. Damian Etone’s Chapter 6 examines the relationship between the UPR and transitional justice, and the extent to which the UPR mechanism can promote transitional justice processes in post conflict societies. The chapter develops a framework for assessing the relationship between the UPR and transitional justice and undertakes the first empirical analysis of that relationship with a focus on Burundi and South Sudan. Etone argues that the UPR can play a significant role in promoting transitional justice measures, reinforcing, and increasing the visibility of recommendations from other international mechanisms, and promoting accountability for human rights atrocities. The final chapter in Part II, Chapter 7 by Louisa Ashley, provides the first comprehensive assessment of the capacity of the UPR to operate as a vehicle for the promotion and implementation of the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP). Ashley addresses two key issues: whether the UPR is an apt vehicle via which to, firstly, increase support for UNDROP amongst those states that abstained or voted against it and, secondly, to secure implementation by those that voted in favour, and if so, how. The discussion in this chapter considers the background to UNDROP and factors that might contribute to states withholding support. Part III of this book assesses how states/regional groupings have engaged with the UPR mechanism and what lessons could be learned for the future of the mechanism. In Chapter 8, Fiona McGaughey, Amy Maguire, Natalie Baird, James Gomez, and Romulo Nayacalevu, deploy a postcolonial theoretical framework and draw on empirical data to analyse the engagement, performance, and influence of states within the Asia Pacific region in the UPR. McGaughey et al argue that the lack of a regional human rights mechanism in the Asia Pacific region makes the UPR simultaneously more significant and less substantial. They identify dystopian elements of ritualism and performativity in the UPR engagement of states within the region but also the potential for the UPR to influence domestic human rights changes, where there is state willingness to improve on its human rights record. This claim about the lack of willingness to improve domestic human rights and assertions of ritualism is re-examined by Eduard Jordaan in Chapter 9 in

Introduction  9 the context of African states’ engagement with the UPR. This chapter evaluates the strength of African states’ reviews over the last three UPR cycles to determine if the African group is still a ‘mutual praise society’. Specifically, Jordaan examines the extent to which African states are willing to address violations of political rights in countries under review. Kazuo Fakuda’s Chapter 10 undertakes one of the first detailed analyses of the contents of the core documents/reports that form the basis of the UPR. Fukuda argues that an investigation of the data contained in these documents can help unpack the essence of the UPR and shed light on its strengths and weaknesses. Focusing on the UPR engagement of Lao People’s Democratic Republic, Thailand, and Vietnam, the author finds that the contents of three core reports, in different instances, were incomprehensive in issue coverage, dissociated from UPR recommendations, did not directly report on implementation, and failed to meet technical guidelines. The final chapter by Michael Lane makes a unique contribution to UPR scholarship by examining the significance of the UPR at the sub-national level. The chapter considers the challenges that devolution poses for the United Kingdom’s engagement with each stage of the UPR. This includes, navigating the ‘broad consultation’ process in advance of reviews; how recommendations might (or might not) be appropriately targeted to devolved administrations; and the role of devolved administrations in responding to and implementing recommendations.

Part I

Theoretical and Conceptual Approaches to Understanding the UPR Mechanism

1 The Universal Periodic Review as an Evolving Process Examining the Path of Development Kathryn McNeilly

Introduction Following its establishment as a flagship mechanism of the United Nations (UN) Human Rights Council (HRC) in 2006, the Universal Periodic Review (UPR) has completed three full cycles. With the first cycle taking place between 2008 and 2011, the second between 2012 and 2016, and the third between 2017 and 2022, the review is currently undertaking its fourth cycle. At this stage in its maturity, a substantial body of scholarship has been dedicated to investigation of this unique and innovative human rights monitoring mechanism. This has included, for example, work exploring the UPR from the perspective of particular states or geographic regions,1 investigating engagement with thematic human rights issues,2 and considering the participation of civil society organisations.3 Alongside this, scholarly work has examined the effectiveness of the review in terms of the promotion and protection of human rights,4 and has stood back to explore the process more generally drawing

1 Eg Allehone Mulugeta Abebe, ‘Of Shaming and Bargaining: African States and the Universal Periodic Review of the United Nations Human Rights Council’ (2009) 9(1) Human Rights Law Review 1–35; Leanne Cochrane and Kathryn McNeilly, ‘The United Kingdom, the United Nations Human Rights Council and the First Cycle of the Universal Periodic Review’ (2013) 17(1) The International Journal of Human Rights 152–77. 2 Eg Noelle Higgins, ‘Creating a Space for Indigenous Rights: The Universal Periodic Review as a Mechanism for Promoting the Rights of Indigenous People’ (2019) 23 The International Journal of Human Rights 125–48; Judith Bueno De Mesquita, ‘The Universal Periodic Review: A Valuable New Procedure for the Right to Health?’ (2019) 21(2) Health and Human Rights 263–77. 3 Eg Natalie Baird, ‘The Role of International Non-governmental Organisations in the Universal Periodic Review of Pacific Island States: Can “Doing Good” be Done Better?’ (2015) 16(2) Melbourne Journal of International Law 550–86; Fiona McGaughey, ‘The Role and Influence of Non-governmental Organisations in the Universal Periodic Review  – International Context and Australian Case Study’ (2017) 17(3) Human Rights Law Review 421–50. 4 Eg Mie Roesdahl, ‘Universal Periodic Review and its Limited Change Potential: Tracking the Complexity of Multiple Actors and Approaches to Human Rights Change Through the Lens of the UPR Process of Nepal’ (2017) 9(3) Journal of Human Rights Practice 401–23; DOI: 10.4324/9781003415992-3

14  Kathryn McNeilly from a range of conceptual tools.5 The present chapter contributes to this landscape by drawing attention to one central aspect of the UPR – its identity as ‘an evolving process’6 – and, in doing so, seeks to advance understandings of the mechanism. In its opening years, the UPR has evolved in important ways, both procedurally and operationally. Scope exists to consider more of this evolution and, through this, to offer an additional route for international human rights law scholars and others to comprehend the process. In investigating the UPR as an evolving process, it is useful to reflect on two concepts that underpin the mechanism: cyclicality and linearity. Given its overarching function to undertake a periodic, or cyclical, review of the international human rights obligations of all UN Member States, cyclicality is fundamental to the UPR. This is reflected in scholarly and wider discussion related to the review. For instance, it is detectable in the study of individual cycles; in the undertaking of comparison between cycles; as well as in a more general understanding of cyclicality as offering a starting point for analysis. However, alongside cyclicality, the UPR also encompasses elements of linearity. In other words, activity that is not bound by a clear start and end point as cycles are but, instead, is ongoing on a path or as an arrow.7 While cyclicality places emphasis on discontinuity – foregrounding discrete cycles and activity within them – linearity stresses continuity across cycles.8 The evolution of the UPR can be understood as a part of the mechanism’s linear activity. This is not to suggest that evolution has been straightforward or strictly progressive in nature, or that it has not demonstrated any discontinuous elements. Rather, it is to highlight that evolution has occurred on a continuous path of development that cuts across cycles. This offers one way to more clearly examine the evolution of the UPR. To understand the identity of the UPR as an evolving process, therefore, it is useful to undertake an analysis that is attentive to linearity and a path of development. Through turning attention to such a path, enhanced understandings of this monitoring process can emerge. The chapter will undertake this work in two parts. First, it will examine development of the UPR’s formal procedural modalities  – including amendments to timetabling, periodicity, documentation, the Working Group session, and participation of civil society

Valentina Carraro, ‘Promoting Compliance with Human Rights: The Performance of the United Nations’ Universal Periodic Review and Treaty Bodies’ (2019) 63(4) International Studies Quarterly 1079–93. 5 Eg Hilary Charlesworth and Emma Larking (eds), Human Rights and the Universal Periodic Review: Rituals and Ritualism (Cambridge University Press 2012); Damian Etone, ‘Theoretical Challenges to Understanding the Potential Impact of the Universal Periodic Review Mechanism: Revisiting Theoretical Approaches to State Human Rights Compliance’ (2019) 18 Journal of Human Rights 36–56. 6 As explored below, this language is drawn from Human Rights Council Resolution 5/1. 7 See, in a different context, discussion on the processes of the European Union: Klaus H. Goetz, ‘How Does the EU Tick? Five Propositions on Political Time’ in Klaus H. Goetz and Jan-Hinrik Meyer-Sahling (eds), The EU Timescape (Routledge 2012) 27–28. 8 ibid.

The Universal Periodic Review as an Evolving Process  15 stakeholders – and development of its operation – encompassing changes and established or emerging trends related to how the review has been undertaken – across cycles. Building on this, the chapter will consider the overarching insights that can be gathered from this examination of a continuous path of development. This includes apprehending themes that have characterised the UPR’s evolution across cycles, as well as its status as a process that stands to evolve further. Discussion to this end will proceed via three sections. In section one, a brief outline of the UPR and its recognition as an evolving process in UN documentation and scholarly literature is provided. This is accompanied by further discussion of this evolution in the context of the UPR’s cyclicality and linearity. In section two, attention turns to examine the development of the UPR’s procedural modalities and operation across its three cycles to date, identifying a path of development. Finally, section three turns to outline the insights that emerge from consideration of this linear, continuous path of development. As noted, these insights hold potential to support deeper understandings of the mechanism and its identity as an evolving process. The Universal Periodic Review: Outline of an Evolving Process The origins of the UPR can be traced to UN General Assembly Resolution 60/251 and the establishment of the UN HRC in 2006.9 This inter-­ governmental body was designed to address challenges of politicisation and selectivity that states and others advanced had appeared in the work of the UN Commission on Human Rights, and to set a new stage for the protection and promotion of human rights based on universality, objectivity, and nonselectivity.10 One of the HRC’s key functions was to be a universal periodic review of state human rights records which Resolution 60/251 described as, based on objective and reliable information, of 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; the review shall be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity building needs; [and] such a mechanism shall complement and not duplicate the work of treaty bodies.11

9 UNGA Res 60/251, UN GAOR, 60th sess, 72nd plen mtg, Agenda Items 46 and 120 (3 April 2006) UN Doc A/Res/60/251 (‘Resolution 60/251’) para 5(e). 10 Philip Alston, ‘Reconceiving the UN Human Rights Regime: Challenges Confronting the New UN Human Rights Council’ (2006) 7(1) Melbourne Journal of International Law 185–224; Rosa Freedman, The United Nations Human Rights Council: A Critique and Early Assessment (Routledge 2013). 11 Resolution 60/251 (n 9) para 5(e).

16  Kathryn McNeilly The HRC was set the task of fleshing out the modalities and time allocation for the review within one year of holding its first session.12 These details were subsequently laid down in HRC Institution-Building Resolution 5/1.13 This document outlined the basis of the review; its principles and objectives; the periodicity and order of the review; its process and modalities; procedures for the outcome of the review; and arrangements for follow-up. The UPR subsequently began its first cycle in 2008, proceeding as a cyclical review of all UN Member States every four years based on the UN Charter, the Universal Declaration of Human Rights, human rights instruments to which the state under review is a party, any voluntary pledges and commitments made, and applicable international human rights law.14 As envisaged in Resolution 5/1, the process takes place across a number of distinct stages. In the first stage, three documents are created which communicate information on the state’s human rights obligations in the period under review. These are a national report; a summary of comments made by UN bodies; and a summary of comments submitted by civil society stakeholders, the latter two compiled by the UN Office of the High Commissioner for Human Rights (OHCHR). These documents inform the second stage, which is the meeting of the UPR Working Group and its interactive dialogue with the State under Review (SuR). In this meeting, HRC Member States and observer states engage in scrutiny of the SuR’s record, offering comments, questions, and recommendations for action. An outcome report from the Working Group is drafted by a troika of three HRC Member States with support from the OHCHR. This report records all comments made, including – crucially – recommendations which the SuR must either support or, should the recommendation not be supported, ‘note’.15 The third stage of the process is the final adoption of the outcome report at the next plenary session of the HRC. In the final stage, the SuR must follow up on supported recommendations in advance of its next review.16 Since its establishment, participation in the UPR has been high, with all UN Member States having now been reviewed three times. The majority of states have also participated in the review of others via asking questions and making recommendations during the interactive dialogue. In operation for just under two decades, the UPR remains a relatively recent addition to the UN human rights monitoring infrastructure. This is certainly the case when compared to the longstanding treaty body system which the

12 ibid. 13 UNHRC, ‘Institution Building of the United Nations Human Rights Council’ HRC Res 5/1, UN HRC OR, 5th sess, Annex (18 June 2007) UN Doc A/HRC/RES/5/1. 14 ibid paras 14 and 1. 15 ibid para 32. 16 ibid paras 33–38.

The Universal Periodic Review as an Evolving Process  17 UPR sits alongside and complements.17 A range of amendments have been made to the review in its opening cycles as the mechanism has developed. The HRC has implemented a number of procedural changes and, through their participation in the process, states have contributed to the development of the UPR as it is undertaken. From the outset, Resolution 5/1 indeed explicitly envisaged a degree of evolution in the mechanism, stating that, the universal periodic review is an evolving process; the Council, after the conclusion of the first review cycle, may review the modalities and periodicity of this mechanism, based on best practices and lessons learned.18 This understanding of the UPR as ‘an evolving process’ in the HRC’s institution-building text has been reflected in scholarly commentary. Edward R. McMahon and Jane Cowan, for example, have both described the UPR as ‘a work in progress’.19 In doing so, an evolutionary nature is brought to the fore. In a similar vein, surveying the literature, Damian Etone identifies a group of ‘evolutionary scholars/commentators’ who ‘contend that the UPR is an important and evolving mechanism’.20 In this category, Etone includes a range of studies that have examined various aspects of the opening cycles and that have explored the review’s developing potential.21 However, whilst UN documentation and scholars alike recognise its identity as an evolving process, space exists at this point in the UPR’s maturity to dedicate further attention to this evolution and to understand it more fully. This includes considering more of what exactly this evolution has involved across procedural and operational aspects, as well as how it can be apprehended holistically. This chapter suggests that one means to fulfil these objectives is to consider the cyclicality and linearity at work within the UPR. From the outset, cyclicality has naturally been inherent to the mechanism given its function to undertake a periodic review of states. Cyclicality, therefore, is often taken

17 Felice Gaer, ‘A Voice Not an Echo: Universal Periodic Review and the UN Treaty Body System’ (2007) 7(1) Human Rights Law Review 109–39. 18 UNHRC (n 13) Annex, para 14. 19 Edward R. McMahon, The Universal Periodic Review: A Work in Progress, An Evaluation of the First Cycle of the New UPR Mechanism of the United Nations Human Rights Council (Friedrich Ebert Stiftung 2012); Jane Cowan, ‘The UPR as a Public Audit Ritual: An Anthropological Perspective on Emerging Practices in the Global Governance of Human Rights’ in Charlesworth and Larking (n 5) 48. 20 Damian Etone, The Human Rights Council: The Impact of the Universal Periodic Review in Africa (Routledge 2020) 25. 21 Elvira Domínguez-Redondo, ‘The Universal Periodic Review of the UN Human Rights Council: An Assessment of the First Session’ (2008) 7 Chinese Journal of International Law 726–34; Rhona Smith, ‘A Review of African States in the First Cycle of the UN Human Rights Council’s Universal Periodic Review’ (2014) 14 African Human Rights Law Journal 346–65; Helen Quane, ‘The Significance of an Evolving Relationship: ASEAN States and the Global Human Rights Mechanisms’ (2015) 15 Human Rights Law Review 283–311.

18  Kathryn McNeilly as the starting point for analysis and discussion of the UPR. However, the UPR is not characterised by cyclicality alone.22 Examining the mechanism, it is possible to detect wider temporalities at work. This includes linearity. While cyclicality is characterised by distinct cycles with start and end points, linearity involves activity that is ongoing without such points and can be observed on a continuing path or as an arrow. As Klaus H. Goetz outlines, the cyclical aspects of legal and political systems tend to be ‘linked to the idea of discontinuity, institutionalised opportunities for renewal, even ruptures, in institutional practices . . . linear time, by contrast, tends to be identified with ongoingness, continuity of action and open-endedness’.23 In such systems, the coexistence of cyclicality and linearity is not unusual and, indeed, the two can usefully be apprehended together.24 The UPR, therefore, is not distinct in this respect. One way to further consider the UPR as an evolving process is to understand evolution as a part of the mechanism’s linear activity. While evolution within individual cycles can be investigated, procedural and operational changes span across all cycles to date in an ongoing manner. The evolution of the UPR can thus be regarded as taking place on a path of development or as an arrow continuing from the first cycle up until the present. It is necessary to examine this linear path to fully understand the content and broader themes of this evolution. Thus, while a focus on cyclicality is essential to understanding the UPR, it is important to also be attentive to linearity and activity that takes place on an ongoing path of development in the review. Considering evolution in this way does not advance that the UPR has evolved in a straightforward or strictly progressive manner. Neither does it propose that discontinuous aspects cannot be detected in evolutionary developments. Rather, it suggests that in viewing evolution as a path of development across cycles a means of more clearly examining the UPR as an evolving process emerges. Engaging this lens complements the typical focus on cyclicality as a starting point for analysis, drawing attention to coexisting elements of linearity within the mechanism. Through turning attention to reflect on evolution in this way, enhanced understandings of the process and new ways to apprehend it can emerge. It is to such examination of the UPR as an evolving process that I now turn attention to. In the section below, development of the formal procedural modalities of the UPR will be investigated, followed by development of the UPR’s operation, encompassing changes and established or emerging trends in how the review is undertaken. In both of these categories, evolutionary changes occur within cycles but are not restricted to them, having cumulative

22 Kathryn McNeilly, ‘The Temporal Ontology of the Human Rights Council’s Universal Periodic Review’ (2021) 21(1) Human Rights Law Review 1–21. For broader analysis of international human rights law procedures and time, see Kathryn McNeilly and Ben Warwick (eds), The Times and Temporalities of International Human Rights Law (Hart 2022). 23 Goetz (n 7) 27–28. 24 See eg ibid; Carol Greenhouse, ‘Just in Time: Temporality and the Cultural Legitimation of Law’ (1988) 98 Yale Law Journal 1631–51.

The Universal Periodic Review as an Evolving Process  19 and longitudinal effect. It is important to note that this examination does not claim to be fully comprehensive in detailing every development that has occurred regarding the UPR’s modalities and operation to date. Such a task would exceed the space available in this chapter. What the discussion to follow aims to do is to highlight some of the most prominent developments. In doing so, it maps the path of development across cycles in terms of the content of evolution and establishes the foundations for the chapter’s final section where insights that emerge from consideration of this path are outlined. The Universal Periodic Review’s Path of Development Development of the Universal Periodic Review’s Procedural Modalities

Following Resolution 5/1,25 supplementary discussions took place on the procedures and modalities for the review. These continued until just before the commencement of Cycle 1.26 Additional documentation was produced providing detail on the submission of reports, arrangements for the interactive dialogue, and wider procedural matters.27 Unsurprisingly, the early stages of the UPR demonstrated a period of adjustment as participants engaged with the process for the first time, and some time was needed for modalities to stabilise.28 As part of an overarching review of the work and functioning of the HRC envisaged in Resolution 60/251,29 a review of the UPR was undertaken in 2011 and changes were implemented as a result.30 Further clarifications have been made since.31 In this respect, the formal modalities of the UPR can be understood as developing in a continuous way, shaped by the HRC in a range of amendments that followed Resolution 5/1 across cycles. In this section, this development is detailed with reference to four central elements: the timetable and periodicity of the review; documentation related to the review;

25 UNHRC, ‘Follow-up to Human Rights Council Resolution 5/1’ (27 September 2007) UN Doc A/HRC/DEC/6/102. 26 Domínguez-Redondo (n 21) 724. 27 UNHRC (n 25); UNHRC, ‘Modalities and Practices for the UPR Process’ (9 April 2008) UN Doc A/HRC/PRST/8/1. 28 Eric Cox, ‘State Human Rights Performance and Recommendations under the Universal Periodic Review’ (2020) 9(1) All Azimuth: A Journal of Foreign Policy and Peace 5–21, 20. 29 Resolution 60/251 (n 9) paras 1 and 16. 30 UNHRC, ‘Review of the Work and Functioning of the Human Rights Council’ (12 April 2011) UN Doc A/HRC/RES/16/21. 31 Eg Office of the President of the Human Rights Council, ‘Letter from President of the Human Rights Council on Rules and Practices of the Universal Periodic Review Working Group’ (18 September 2013) available at www.ohchr.org/sites/default/files/Documents/ HRBodies/UPR/HRCPresidentLetterOnUPR.pdf accessed 25 July 2023; UNHRC, ‘Commencement of the Third Cycle of the Universal Periodic Review’ (7 April 2016) UN Doc A/HRC/DEC/31/116.

20  Kathryn McNeilly the structure of the Working Group session; and participation of civil society organisations and other stakeholders. Turning to the first of these elements – timetabling and periodicity – Resolution 5/1 provided that the periodicity of Cycle 1 would be four years, with the review considering 48 states per year.32 As part of the five-year review of the UPR, Resolution 16/21 amended this periodicity to four and a half years, with consideration of 42 states per year.33 The order of the review, established by drawing lots at the beginning of Cycle 1, was maintained for the second and subsequent cycles.34 Development of periodicity continued into Cycle 3 with the decision to insert a pause between Cycles 2 and 3, leading to a fiveyear periodicity in practice.35 The outbreak of the Covid-19 pandemic in 2020 stimulated an additional delay in the review timetable.36 This led Cycle 3 to extend into 2022, beyond its originally scheduled end in 2021. With these various changes, the periodicity and timetabling for the review has demonstrated ongoing development from the UPR’s establishment until the present. States and other participants in the process have adapted accordingly and whilst the periodic nature of the mechanism has remained static, the details of this periodicity have continued to evolve. This evolving timetable and periodicity have been accompanied by, second, developing modalities pertaining to the documentation that is produced within the UPR. At the outset of Cycle 1, the HRC President established a limit of 9,630 words for the Working Group report, 2,675 for the addendum document, and 3,210 for the report produced at the HRC plenary session.37 Changes occurred in 2012 when the limit for Working Group reports was extended to 10,700 words in line with wider guidance in place across the UN.38 Attention also turned to the Working Group report document in Resolution 16/21 of 2011. This included advising that recommendations should be clustered thematically,39 a change that aimed to assist in navigating the increasing number of recommendations emerging from the process. When it comes to documentation submitted by states and the compilation reports produced by the OHCHR, Resolution 5/1 limited the former of these to 20

32 33 34 35

UNHRC (n 13) Annex, para 14. UNHRC (n 30) Annex, para 3. ibid Annex, para 4. UNHRC, ‘Commencement of the Third Cycle of the Universal Periodic Review’ (7 April 2016) UN Doc A/HRC/DEC/31/116. 36 OHCHR, ‘Human Rights Council’s Working Group May 2020 Session Postponed’ (20 March 2020) available at www.ohchr.org/en/2020/03/human-rights-councils-universalperiodic-review-working-group-may-2020-session-postponed accessed 15 July 2023. 37 UNHRC, ‘Follow-up to President’s Statement 8/1’ (24 September 2008) UN Doc HRC/ PRST/9/2, Annex. 38 UNHRC, ‘Reports of the Working Group on the Universal Periodic Review’ (19 July 2012) UN Doc A/HRC/PRST/20/1. 39 UNHRC (n 30) Annex, para 15.

The Universal Periodic Review as an Evolving Process  21 pages and the latter to ten pages.40 For each cycle, the OHCHR has produced updated technical guidance for civil society stakeholders and UN entities aimed to assist in the preparation of information to be submitted for inclusion in the compilation reports. During Cycle 1, this limited individual submissions to five pages and submissions by coalitions of stakeholders to ten pages.41 This was updated in Cycle 2 to take the form of a word limit – 2,815 words for individual submissions and 5,630 for submissions by coalitions.42 This has been maintained for both civil society stakeholders and UN entities in the third and fourth cycles.43 Alongside these instructions on length, broader guidelines have been produced to assist states under review and other actors in the preparation of documentation. HRC Decision 6/102 specified a number of elements that should be included in documents submitted to the UPR: description of the methodology and consultation process for the report; background to the country under review; information on promotion and protection of human rights on the ground; identification of achievements, best practices, challenges, and constraints; key national priorities, initiative and commitments that the state intends to undertake; expectations of the state in terms of capacity building and technical assistance; and presentation of follow-up to the previous review.44 As part of the five-year review in 2011, updated guidance was provided in Decision 17/119. This included, significantly, instruction that ‘the second and subsequent cycles of the review should focus on, inter alia, the implementation of the accepted recommendations’ from the previous cycle.45 Resolution 16/21 also instructed states under review to clearly communicate to the HRC in writing, preferably prior to the plenary session, their position on all recommendations received, as well as encouraging submission of

40 UNHRC (n 13) Annex, para 15 (a)–(c). 41 OHCHR, ‘Information and Guidelines for Relevant Stakeholders on the Universal Periodic Review Mechanism’ (July 2008) available at https://shorturl.at/gjsvG accessed 15 July 2023. 42 OHCHR, ‘Universal Periodic Review: Information and Guidelines for Relevant Stakeholders’ Written Submissions’ (17 March 2015) available at https://shorturl.at/lmMY9 accessed 15 July 2023. 43 OHCHR, ‘Universal Periodic Review (Third Cycle): Information and Guidelines for Relevant Stakeholders’ Written Submissions’ available at www.ohchr.org/Documents/HRBodies/UPR/TechnicalGuidelines3rdCycle.docx para 11 accessed 15 July 2023; OHCHR, ‘Universal Periodic Review (Fourth Cycle): Information and Guidelines for UN Resident Coordinators, UN Country Teams and UN Entities’ Written Submissions to the UPR Compilation’ available at www.ohchr.org/sites/default/files/2022-03/TechnicalGuidelines4thCycleUNEntities_final.pdf para 11 accessed 15 July 2023; OHCHR, ‘Universal Periodic Review (Fourth Cycle): Information and Guidelines for Relevant Stakeholders’ Written Submissions’ available at https://rb.gy/0l03i para 11 accessed 15 July 2023. 44 UNHRC (n 25) 1–2. 45 UNHRC, ‘Follow-up to the Human Rights Council Resolution 16/21 with Regard to the Universal Periodic Review’ (19 July 2011) UN Doc A/HRC/DEC/17/119, para 2.

22  Kathryn McNeilly a voluntary mid-term report document.46 Discussion has taken place on the implementation and effects of these updates.47 Additional developments related to the OHCHR’s technical guidance include, during Cycle 3, encouraging stakeholders to engage with a matrix of thematically clustered recommendations, made available on the OHCHRUPR country webpages, as part of their submission.48 Stakeholders were also asked to consider making recommendations that were specific, measurable, achievable, result-orientated, and time-bound (SMART).49 Most recently, in the technical guidance provided during Cycle 4, consideration of the linkages that exist between implementation of the UPR and the Sustainable Development Goals (SDGs) is encouraged, a development that reflects wider work on the SDGs across the UN.50 Throughout all these changes – from development of word or page limits to guidance on what documentation should include – participants in the UPR process have been required to be attentive to ongoing evolution, with the path of development being cumulative as changes from a particular cycle are taken forward to inform cycles that follow. Third, formal modalities have developed in relation to the UPR Working Group session that takes place in Geneva and forms the centrepiece of the review. This constitutes another important element of the procedural path of development across cycles. The modalities for the Working Group were laid down in Resolution 5/1.51 One aspect of their amendment since relates to the duration of the Working Group session. Resolution 5/1 provided that each review would last for a total of three hours.52 Later guidance expanded this, detailing that the SuR should be allocated 60 minutes of this time to cover initial presentation of the national report and any responses to written questions, replies to questions during the interactive dialogue, and concluding comments.53 The remaining 120 minutes were to be dedicated to statements from peer reviewing states. As Cycle 1 progressed and state participation in the Working Group steadily increased, additional time allocation became necessary.54 Changes were made in Cycle 2 to extend the Working Group’s duration

46 UNHRC (n 30) Annex, paras 16 and 18. 47 Kazuo Fukuda, ‘Human Rights Council’s Universal Periodic Review as a Forum of Fighting for Borderline Recommendations? Lessons Learned from the Ground’ (2022) 20(2) Northwestern Journal of Human Rights 63–119, 92; Alice Storey, ‘Challenges and Opportunities for the United Nations’ Universal Periodic Review: A Case Study on Capital Punishment in the United States’ (2021) 90(1) UMKC Law Review 129–52, 149–51. 48 OHCHR (n 43) (Third Cycle) para 5(a), 5(e); OHCHR (n 43) (Fourth Cycle stakeholders’ document) para 5(d). 49 ibid (Third Cycle), para 7(c); ibid (Fourth Cycle stakeholders’ document), para 5(b). 50 ibid (Fourth Cycle stakeholders’ document) 8; OHCHR (n 43) (Fourth Cycle UN document) 8–9. 51 UNHRC (n 13) Annex, para 18. 52 ibid Annex, para 22. 53 UNHRC 8/PRST/1 (n 27) para 7. 54 Fukuda (n 47) 72.

The Universal Periodic Review as an Evolving Process  23 to three and a half hours, including an increased allocation of 70 minutes to the SuR.55 This amended timing continued into Cycles 3 and 4. A related aspect of the Working Group’s modalities that has demonstrated evolution is the speaking time allocated to peer reviewing states. Initially, the 120 minutes allocated to statements from such states was divided among HRC Member States, who received three minutes each, and observer states, who received two minutes. If the number of speakers was high, all states received two minutes each. This arrangement soon posed challenges as allies of the SuR signed up to the speakers list, which operated on a first-come-first-served basis, leading to circumstances where states wishing to make critical interventions could not participate due to lack of time.56 With the increased duration of the Working Group in Cycle 2, this position continued to apply when all speakers could be accommodated within the time available.57 Where such accommodation could not be facilitated, new arrangements were introduced which allocated two minutes speaking time for all or, failing this, divided speaking time equally to enable every speaker to take the floor.58 This latter change addressed to some extent the challenge of the speaking list being crowded by allies of the SuR, but has meant that on a number of occasions time available to deliver statements has been short and curtailed meaningful interventions from peer reviewing states.59 Balancing this, observations have also been made that in later cycles curtailed speaking time has evolved the content of statements made by peer reviewing states. With a short amount of time available, diplomatic formalities have been limited and focus has been placed on recommendations for action.60 In the pursuit of enhanced fairness from Cycle 2 onwards, the speakers list now opens on the Monday of the week preceding the review and remains open for four days, with the first speaker drawn by lot and the list proceeding alphabetically afterwards.61 Such modalities underpinning the Working Group session have been crucial to the effective operation of the review. Development of these modalities has been ongoing, with particular activity across Cycles 1 and 2, affecting subsequent cycles and shaping a journey towards effective structuring of the Working Group. The final area of development for procedural modalities that will be discussed pertains to participation of civil society stakeholders in the process. 55 UNHRC (n 45) para 3. 56 Abebe (n 1); Walter Kälin, ‘Ritual and Ritualism at the Universal Periodic Review: A Preliminary Appraisal’ in Charlesworth and Larking (n 5) 3; Gareth Sweeney and Yuri Saito, ‘An NGO Assessment of the New Mechanisms of the UN Human Rights Council’ (2009) 9(2) Human Rights Law Review 203–23. 57 UNHRC (n 45) para 5. 58 ibid paras 6–7. 59 Kälin (n 56) 32–33. 60 Subhas Gujahur and Marc Limon, Towards the Third Cycle of the UPR: Stick or Twist? Lessons Learnt from the First Ten Years of the Universal Periodic Review (Universal Rights Group 2016) 4. 61 UNHRC (n 45) paras 8(a)–(b).

24  Kathryn McNeilly Scholars have considered the scope that exists for this.62 Evolutionary changes can be detected throughout the course of the UPR to date to facilitate such participation in line with the aims of Resolution 5/1.63 Since Cycle 1, civil society stakeholders have had the opportunity to comment at the plenary session before the adoption of the outcome report.64 Revised modalities for Cycle 2 provided that the National Human Rights Institution (NHRI) of the SuR is entitled to intervene immediately after the state at the plenary session.65 Aiming to enable wide participation, and address concerns regarding resources required to facilitate travel to Geneva to participate in the process,66 changes were made in 2012 to permit stakeholders to make statements at the plenary via video.67 Beyond participation in the plenary, Resolution 16/21 introduced procedural changes requiring that a separate section should be included in the stakeholder summary document compiled by OHCHR containing contributions by the NHRI.68 This document also included explicit encouragement that states under review include consultation with stakeholders as part of the follow-up to the review.69 These developmental changes fit with wider amendments to stakeholder documentation across Cycles 1 to 3, outlined above, and operational developments related to civil society stakeholders, discussed in the section to follow. Development of the Universal Periodic Review’s Operation

Amendments to the formal procedural modalities that underpin the UPR constitutes one aspect of this mechanism’s path of development. As the preceding examination demonstrates, evolution of procedures is an ongoing process with changes in one cycle continuing into those that follow and, sometimes, being expanded upon further. To gather a fuller sense of the UPR’s evolutionary identity, however, it is also necessary to consider the mechanism’s operational development. By this, I mean how the review has been undertaken by states and others who participate in it. Changes and established or emerging trends can be observed in the operation of the UPR from Cycle 1, continuing through to the present. In this section, attention turns to this aspect of the review’s ongoing evolution. Five areas are considered in the discussion below.

62 Eg Ben Schokman and Phil Lynch, ‘Effective NGO Engagement with the Universal Periodic Review’ in Charlesworth and Larking (n 5); Sweeney and Saito (n 56). 63 UNHRC (n 13) Annex para 3(m). 64 ibid Annex, 31. 65 UNHRC (n 30) Annex para 13. 66 Baird (n 3). 67 UNHRC, ‘Task Force on Secretariat Services, Accessibility for Persons with Disabilities and Use of Information Technology’ (25 April 2012) UN Doc A/HRC/DEC/19/119, para 47(a). 68 UNHRC (n 30) Annex, para 9. 69 ibid Annex, para 17.

The Universal Periodic Review as an Evolving Process  25 These are: developments related to recommendations in the process; civil society stakeholder activities; developments related to the follow-up period; the influence of inter-governmentality and state relations in the process; and the UPR’s evolving place in the wider international human rights law landscape. The first, and perhaps most widely discussed, aspect of the UPR’s operational evolution pertains to recommendations made during the review. From the outset, recommendations were envisaged as a key outcome from the process,70 and much quantitative and qualitative analysis has been dedicated to their examination.71 A range of evolutionary trends appear related to recommendations across cycles to date. To begin with, it is possible to observe development of the number of recommendations that have been made. As the UPR has matured, and states have become more familiar with it, the number of recommendations made to states under review has expanded. According to the database developed by Geneva-based non-governmental organisation UPR Info, a total of 21,355 recommendations were made in Cycle 1, increasing to 36,338 in Cycle 2 and the last update to the database indicates that 33,245 have been made in Cycle 3.72 This latter figure will increase once final analysis of Cycle 3 data is complete. The picture that emerges is a cumulative trend of steadily increasing recommendations across cycles. Trends can also be observed related to the substantive content of recommendations and their acceptance rates. Regarding the former, the UPR Info database indicates that international instruments, women’s rights, and the rights of the child have been the top three issues featuring in recommendations across Cycles 1 to 3, indicating an arrow of continuity in terms of the themes that states engage when making recommendations.73 Regarding the first of these thematic issues, an emerging practice of making recommendations that pertain to treaty reservations has been identified.74 This sits alongside recommendations on the ratification of treaties, which form a substantial

70 UNHRC (n 13) Annex, para 26. 71 Edward R. McMahon and Tomek Botwicz in chapter 4 and, more widely, Edward R. McMahon and Marta Ascherio, ‘A Step Ahead in Promoting Human Rights? The Universal Periodic Review of the UN Human Rights Council’ 18(2) (2012) Global Governance 231–48. 72 UPR Info, ‘Database of UPR Recommendations and Voluntary Pledges’ available at https://upr-info-database.uwazi.io/en/ accessed 15 July 2015. 73 Walter Kälin, ‘Human Rights Treaties within the UPR Process: Opportunities and Limits of Inter-Governmental Monitoring of Human Rights’ (2017) 60 Japanese Yearbook of International Law 243–60; Andrea Cofelice and Pietro de Perini, ‘The Third Universal Periodic Review of Italy Between Recurring Trends and New Challenges’ (2020) 4(2) Peace Human Rights Governance 1175–90; Valentina Carraro, ‘The United Nations Treaty Bodies and Universal Periodic Review: Advancing Human Rights by Preventing Politicization?’ (2017) 39(4) Human Rights Quarterly 943–70, 958. 74 Frederick Cowell, ‘Reservations to Human Rights Treaties in Recommendations from the Universal Periodic Review: An Emerging Practice?’ (2021) 25(2) The International Journal of Human Rights 274–94.

26  Kathryn McNeilly part of recommendations in this category too. When it comes to acceptance of recommendations, despite the increasing number of recommendations made the UPR has demonstrated a high acceptance rate. 73 per cent of recommendations were supported in Cycles 1 and 2 and on currently available data, a 75 per cent acceptance rate is evident in Cycle 3.75 Analysis also suggests that states have become more risk adverse in acceptance of recommendations as cycles continue and engage in a lesser degree of performative compliance.76 A number of factors have been advanced as influencing the likelihood of a recommendation being supported at this point in the UPR’s development, including the number of recommendations made on the topic, how specific the recommendation is,77 and how accepting the state’s response is.78 Evolution can additionally be detected regarding the bases that underpin recommendations. Sangeeta Shah and Sandesh Sivakumaran have found that states have not limited themselves to the bases for the review laid down in Resolution 5/1.79 Broader international legal material has been engaged in issuing recommendations. This includes both hard and soft law, international criminal law, international refugee law, international law on statelessness, and international labour law, as well as a body of more generalised, non-specific international human rights law evident in references to ‘obligations’, ‘standards’, ‘instruments’, etc. Shah and Sivakumaran also find that some bases outlined in Resolution 5/1 have not been extensively utilised, in particular the UN Charter and the Universal Declaration of Human Rights.80 These findings, based on Cycles 1 and 2, are significant in indicating towards evolution of the mechanism’s bases for review. Evidence of a similar trend can also be found in Cycle 3, indicating an ongoing line of evolutionary development.81 A second area of operational development concerns civil society stakeholder activities. As noted, changes to modalities have enhanced stakeholder participation in the process. Wider developments, however, have also occurred in

75 This information is available via the UPR Info Database (n 72). As noted, third cycle data, however, remains incomplete. 76 Cowell (n 74) 283–85. 77 On this point see Edward R. McMahon and Elissa Johnson, Evolution Not Revolution: The First Two Cycles of the UN Human Rights Council Universal Periodic Review Mechanism (Friedrich Ebert Stiftung 2016). 78 Sarah Tufano, ‘The “Holy Trinity” of the United Nations Universal Periodic Review: How to Make an Effective Recommendation Regarding Women’s Rights’ (2018) 21(3) University of Pennsylvania Journal of Law and Social Change 187–218. 79 Sangeeta Shah and Sandesh Sivakumaran, ‘The Use of International Human Rights Law in the Universal Periodic Review’ (2021) 21(2) Human Rights Law Review 264–301. 80 ibid 275. 81 Eg Cycle 3 recommendations engaging international criminal law (including Croatia to the Democratic People’s Republic of Korea; Liechtenstein to Angola, Armenia, Egypt and Qatar; Palestine to the United States of America) and international labour law (including Ireland to the United Arab Emirates; Portugal to the Democratic People’s Republic of Korea; Syria to Algeria; the United Kingdom to Armenia, Ethiopia and Ukraine).

The Universal Periodic Review as an Evolving Process  27 this space related to activity around the review. When Cycle 1 commenced, it was not possible for civil society organisations to organise side-events coinciding with the review. A change later took place during Cycle 2 to permit events focused on the sharing of information and best practice, with organising groups being encouraged to invite the SuR or inform them of the event.82 Another significant development occurred in 2012: the introduction of PreSessions organised by UPR Info. Operating alongside the review calendar, but external to the formal process, Pre-Sessions are designed to offer an opportunity for states to engage with civil society stakeholders, including those at local level, in Geneva during the weeks before the Working Group session. The ultimate aim is to brief states and ensure that recommendations made are well-targeted.83 These sessions have continued throughout subsequent cycles, building on initial interest and participation. There is some evidence that recommendations provided in the Pre-Sessions have an influence on those made by states during the review.84 Through these developments supplementing the formal operation of the UPR, engagement between states and civil society stakeholders has been furthered in ongoing ways. Third, attention can turn to operational developments regarding follow-up to the review. A clear path of development emerges via changes and additions in this area across cycles. The first, noted above, concerns the operational element of a change introduced by Resolution 16/21: the submission of voluntary mid-term reports. As of March 2023, 87 states have submitted mid-term reports. This is broken down into 55 reports on Cycle 1, 55 reports on Cycle 2, and 39 on Cycle 3.85 During Cycle 3 one state – the United Kingdom of Great Britain and Northern Ireland – also elected to submit a yearly update before its mid-term report was due, initiating a new approach in reporting between cycles. Simultaneously, an emerging practice is detectable of NGOs, NHRIs and UN entities submitting mid-term reports. At the time of writing, 82 have been received from NGOs, seven from NHRIs, and one from a UN entity across Cycles 2 and 3. This appears as an area of ongoing development in activity to further monitor implementation of recommendations between cycles. A second operational follow-up development implemented since the

82 Roland Chauville, ‘The Universal Periodic Review’s First Cycle: Successes and Failures’ in Charlesworth and Larking (n 5) 106. 83 See UPR Info, UPR Info Pre-Sessions: Empowering Human Rights Voices from the Ground (UPR Info 2016). 84 ibid 24–27. More generally, recommendations made by civil society stakeholders have been proven to have an influence, albeit recommendations made by UN entities remain most impactful: Lawrence Moss, ‘Opportunities for Nongovernmental Organization Advocacy in the Universal Periodic Review Process at the UN Human Rights Council’ (2010) 2(1) Journal of Human Rights Practice 122–50; McGaughey (n 3) 449–50; Edward R. McMahon et  al, The Universal Periodic Review. Do Civil Society Organisation-Suggested Recommendations Matter? (Friedrich Ebert Stiftung 2013). 85 Human Rights Council, ‘UPR Mid-Term Reports’ available at www.ohchr.org/en/hr-bodies/upr/upr-implementation accessed 15 July 2023.

28  Kathryn McNeilly start of Cycle 3 is that following adoption of the Working Group report, the UN High Commissioner for Human Rights engages their mandate under General Assembly Resolution 48/14186 to write a letter to the minister of foreign affairs in each SuR. This letter summarises the key issues raised in the review, aiming in a spirit of constructive dialogue to highlight areas for action in the follow-up period. Both mid-term reports and the High Commissioner’s letters are available for public access. They sit alongside the recently introduced matrix of recommendations created for each state and an infographic visually presenting recommendations as an expanding range of tools assisting implementation and monitoring post-review. These varied changes suggest that the operation of follow-up is a particular area for continuous evolution. The fourth element of the UPR’s operation developing across cycles relates to the influence of inter-governmentality and state relations in the process. From the outset, the review was based on cooperation, a non-confrontational approach to human rights implementation and the sharing of best practice, with equality and universality of treatment being crucial.87 Nevertheless, as a mechanism undertaken via peer review between states, political elements have been detected across all cycles and pose potential challenges.88 However, paradoxically, the path of development for the inter-governmental nature of the review also evidences some unexpected positive consequences. Rochelle Terman and Erik Voeten find that while peer reviewing states are less likely to criticise their allies, any criticism that they do offer is more influential because of this pre-existing relationship and critical recommendations from allies are accepted more often than those from other states.89 Additionally, in a comparative study of the treaty body system and UPR, Valentina Carraro finds that while the UPR is more politicised in its operation, this element of the process assists in requiring states to seriously commit to the review and accepted recommendations become a political commitment undertaken with a fellow state.90 Accordingly, while the UPR cannot be advanced as providing a comprehensive, expert-led overview of the internal human rights situation of states under review, analysis of its operation across cycles suggests that it is capable of generating recommendations to enhance compliance and of exerting pressure on states to accept these.91 Thus, as an evolving mechanism, the UPR appears 86 UNGA, ‘High Commissioner for the Promotion and Protection of All Human Rights’ (20 December 1993) UN Doc A/RES/48/141. 87 Resolution 60/251 (n 9), preamble. See Elvira Domínguez-Redondo, ‘The Universal Periodic Review – Is There Life Beyond Naming and Shaming in Human Rights Implementation?’ (2012) 4 New Zealand Law Review 673–706. 88 Abebe (n 1); Etone (n 20); Jane Cowan and Julie Billaud, ‘Between Learning and Schooling: The Politics of Human Rights Monitoring at the Universal Periodic Review’ (2015) 36(6) Third World Quarterly 1175–90. 89 Rochelle Terman and Erik Voeten, ‘The Relational Politics of Shame: Evidence from the Universal Periodic Review’ (2018) 13(1) The Review of International Organizations 1–23. 90 Carraro (n 73). 91 ibid; Terman and Voeten (n 89).

The Universal Periodic Review as an Evolving Process  29 to not have entirely eschewed realpolitik, yet this has developed as a doubleedged sword. The final operational development that this section draws attention to is the UPR’s evolving place in the wider international human rights law landscape. As the UPR has been undertaken and generated a body of documentation, its location within this landscape has matured. This journey remains ongoing, but two points can be highlighted that signal towards the direction that the UPR has evolved in this regard throughout its opening cycles. The first pertains to discussion as to the legal significance of recommendations made during the UPR. Writing at the beginning of Cycle 2, Elvira DomínguezRedondo states that if high levels of participation in the mechanism continued ‘the UPR could offer evidence of opinio juris thereby accelerating the formation of new customary law and consolidating existing customary standards’.92 For Domínguez-Redondo, the practice of the UPR holds potential to generate a portrait of rights acceptance by states. This topic was returned to by Frederick Cowell at the outset of Cycle 3 who explores what legal status recommendations from the UPR might have should particular conditions be met. These conditions include where recommendations are indicative of an emerging consensus in international law regarding the scope and application of a right, or concern a right protected in existing treaties and serve to complement or complete the process of enforcing state obligation regarding that right.93 Thus, while the UPR cannot be thought of as a law-making process, as the mechanism develops scholars have begun to examine the question of whether recommendations produced within it may hold a significance that is not purely political. A second developmental issue connected to the UPR’s place within the international human rights law landscape relates to the relationships that have been developing between the review and other international human rights law bodies or processes.94 The most obvious of these is the relationship with the treaty bodies. Concern was initially expressed as to the complementary, or otherwise, nature of this relationship.95 As the review enters its fourth cycle, however, analysis suggests that there is some evidence of productive interchange developing between the two systems. Walter Kälin, for example, submits that UPR recommendations can assist in advancing the ratification of treaties; addressing backlogs in overdue treaty body reports; recognising the competence of treaty bodies to receive and examine individual communications;

92 Domínguez-Redondo (n 87) 703. 93 Frederick Cowell, ‘Understanding the Legal Status of Universal Periodic Review Recommendations’ (2018) 7(1) Cambridge International Law Journal 164–84. See also Cowell’s chapter in the present collection. 94 See Elvira Domínguez-Redondo and Rhona Smith’s contribution in chapter 5. 95 Oliver de Frouville, ‘Building a Universal System for the Protection of Human Rights: The Way Forward’ in M. Cherif Bassiouni and William A. Schabas (eds), New Challenges for the UN Human Rights Machinery (Intersentia 2011).

30  Kathryn McNeilly and urging states to implement recommendations made by treaty bodies.96 For Kälin, the UPR’s unique role is to serve ‘as a merging mechanism for the whole UN human rights protection system, including the Treaty Bodies and the Special Procedures’, translating recommendations of wider bodies into action.97 In terms of the wider international human rights law landscape, regional human rights treaties have on occasion been engaged as a basis for review under the UPR.98 The UPR has also been referenced in the European Court of Human Rights and other regional bodies such as the Inter-American Commission on Human Rights and the European Committee on the Prevention of Torture.99 While both references to regional international human rights law sources within the UPR and outcomes from the UPR being engaged by bodies outside the UN system remain nascent in nature, they suggest an area of ongoing development that stands to be monitored. Understanding an Evolving Process: Insights From the Universal Periodic Review’s Path of Development Discussion in the preceding section has provided detail on various amendments, additions, and established or emerging trends across cycles related to the UPR’s formal procedural modalities and operation. This mapping demonstrates the ongoing path of development that has characterised the mechanism since its establishment. The evolution detailed cannot be understood via a cyclical lens alone, but has taken place in a continuous way as an arrow or thread, often building or culminating as cycles progress. The question that remains to be addressed is what insights can be drawn from the above consideration of the UPR’s path of development? In other words, what overarching observations emerge that may assist international human rights scholars and professionals to further understand the UPR as an evolving process? In the present section, these questions are investigated. Drawing modality-based and operational developments together, four themes can be detected characterising the UPR’s evolutionary path of development to date. First, many of the ongoing changes discussed above assist to make engagement in the process more manageable for participants but, on other occasions, have also risked having the opposite effect. The former is evident, for example, in changes that have been made to the guidance that has been provided on preparation of documentation for the process, both by the HRC as well as technical guidelines from the OHCHR. This aims to assist in the production of information that informs the process and to establish suitable limits for this documentation. It is additionally evident in

96 97 98 99

Kälin (n 73) 256. ibid 260. Shah and Sivakumaran (n 79) 279. Kälin (n 73) 255.

The Universal Periodic Review as an Evolving Process  31 amendments introduced to encourage the thematic grouping of recommendations in presentation of the outcome document, so allowing states and wider readers to effectively navigate the variety of recommendations made in the Working Group. An expanded periodicity for the process from four years to a more recent periodicity that is closer to five years also offers an increased time for implementation of recommendations. On the point of recommendations, however, some developments across cycles have held potential to make the process less manageable. The trend of increasing numbers of recommendations made during the review process as cycles have progressed is one of these, posing implementation-related challenges during the follow-up period. This is particularly so for smaller states for whom implementing a high number of recommendations may pose a challenge, the review’s amended periodicity notwithstanding.100 Second, activity across the procedural and operational path of development has served to make it easier to review and follow up on recommendations that states accept during the UPR process. These changes can be understood as aiming to enhance fulfilment of the key objectives of the review as laid down in Resolution 5/1.101 Easing the review and follow up of accepted recommendations is particularly important given the increasing number of recommendations made across cycles and a consistently high acceptance rate by states under review. Examples of evolutionary developments facilitating this include Cycle 2 changes for states under review to communicate their position on recommendations in writing, the encouragement to submit a mid-term report, as well as the introduction of matrices and infographics presenting information on recommendations for each state. The recent introduction of a letter written by the High Commissioner for Human Rights addressed to states following their review also serves to assist during the follow-up period and offers an additional resource in this respect. Given the ambition to place focus on the implementation of recommendations received from Cycle 2 onwards, many developments can be detected with the aim of reviewing work from the previous cycle and adopting new ways to present information on accepted recommendations. Third, developments can be observed across cycles supporting participation in the process for states and also for stakeholders. State participation has been enhanced through changes to the time allocated in the Working Group

100 Funding has been made available to assist with implementation of recommendations from the review: UNHRC, ‘Voluntary Trust Fund for Financial and Technical Assistance’ (28 September 2007) UN Doc A/HRC/RES/6/17 para 19; See also annex of UNGA, ‘Review of the Human Rights Council’ (20 July 2011) UN Doc A/RES/65/281 – which calls for the fund to be ‘strengthened and operationalised in order to provide a source of financial and technical assistance to help countries, in particular least developed countries and small island developing states, to implement the recommendations emanating from their review’. 101 UNHRC (n 13) Annex, para 4.

32  Kathryn McNeilly session as state interest and participation in the process increased. This includes enhanced time allocated to the SuR, as well as changes made to speaking time and the speakers’ list. The latter has been essential in addressing concerns raised early in the process regarding reviewer participation in the Working Group and to move towards supporting genuine dialogue on the record of the SuR from all states who wish to contribute. While the majority of states have participated as peer reviewers, the small number of states that have not made recommendations in the process tend not to have Permanent Mission representation in Geneva, have small populations, and are often Small Island Developing States.102 From this, some space may exist for development of further support for state participation. When it comes to stakeholders, the trajectory of procedural and operational development has also been towards enhanced participation. This includes space for civil society organisations, with particular attention to the NHRI, to present at the HRC plenary session and to do so via video link. It also encompasses developments outside the formal confines of the process such as the introduction of UPR Info’s Pre-Sessions where civil society stakeholders have an opportunity to engage with peer reviewing states, as well as changes to facilitate the holding of wider events around the time of their state’s review. Through these developments, the importance of stakeholder participation in the process has been foregrounded in ongoing ways. Fourth, and finally, it is possible more generally to observe some surprising, or unexpected, features of the UPR’s development across cycles. Many of these are still emerging and may take the UPR in new directions as it continues to mature. These features include the UPR’s expanding reach and significance, both in terms of its reference by a range of international human rights bodies outside the UN system and, following some scholarly analyses, emerging discussion over the legal significance of recommendations in terms of customary international law. Alongside this expanding reach and significance, operation of the UPR has demonstrated expansion when it comes to the bases of review that are being engaged by states. While some bases appear infrequently in recommendations made  – the UN Charter, the Universal Declaration of Human Rights – others have emerged beyond the bases envisaged in Resolution 5/1. A final surprising feature of development across cycles relates to the influence of strategic state relationships in the process. While realpolitik has continued in all cycles and has influenced recommendation making, the inter-governmental nature of the process has also offered strengths in terms of implementation of recommendations. Accordingly, complexities of the intergovernmental nature of the review have come to the fore. Collectively, these features indicate some elements of unexpectedness in the UPR’s evolution, signalling towards the nuances of the mechanism.

102 Pilar Elizalde, ‘A Horizontal Pathway to Impact? An Assessment of the Universal Periodic Review at 10’ in Alison Brysk and Michael Stohl (eds), Contesting Human Rights: Norms, Institutions and Practice (Edward Elgar 2019). See also Baird (n 3).

The Universal Periodic Review as an Evolving Process  33 These four themes arising from the path of development examined above can assist in understanding and navigating the UPR as an evolving process. They demonstrate the current status of the UPR in its development, indicate where ongoing evolutionary changes have been located, and highlight the aims they have been directed towards since commencement of the mechanism. It is possible to gather a holistic and overarching comprehension of evolutionary changes through this analysis which can, in turn, deepen what we know about the UPR. Engaging the lens of a linear, ongoing path of development to understand the evolution of the UPR, however, it is also possible to draw an additional insight. This is that the UPR’s identity as an evolving process remains, and further changes or amendments to the mechanism are possible. In other words, the UPR is a process that continues to evolve. Understanding evolution as part of the mechanism’s linear activity suggests that the path or arrow of development remains open and can be tracked across cycles into the future. International human rights law scholars and professionals who wish to understand the mechanism as an evolving process should, therefore, continue to be attentive to an ongoing path of development in the UPR’s modalities and operation. It remains to be seen whether the four themes detectable on the path of development so far continue, are added to, or take a new direction. This conceptual lens is thus not just of use to map the path of development to date, but alerts to analyses that may be undertaken in the future throughout Cycle 4 and beyond. Conclusion The UPR’s identity as an evolving process is one that is explicitly recognised by Resolution 5/1 as well as in wider scholarly commentary reflecting on the review from its establishment. Few commentators would contest that evolution has been a key element of the UPR during its first three cycles. This chapter has suggested that space exists to further reflect on the nature of this evolutionary identity and to apprehend more of what has characterised the review’s evolution. In doing so, it has proposed the utility of reflecting on evolution as part of the UPR’s linearity, taking place on a path of development across cycles. While such an approach may on first blush hold potential to be regarded as counter-intuitive in a mechanism where cyclicality is the temporal frame most frequently engaged, the UPR is by no means unique as a procedure that is characterised by both cyclical and linear elements. Linear evolution, in contrast to cyclical activity, continues without beginning or end on an arrow or path. Attending to evolution via a linear path of development assists in mapping detail of the content of the mechanism’s procedural and operational evolution across cycles. It also assists in drawing overarching insights as to the themes that have characterised this evolution, and in highlighting evolution as an ongoing feature of the process that is likely to continue. Through these observations, it is possible to find an additional route to apprehend the UPR

34  Kathryn McNeilly and to understand it more deeply. The evolution of the UPR may be the most obvious example of activity occurring on a path of development across cycles, albeit in concluding it is important to note that it is not the only activity that can be understood as doing so. It may also be possible, for instance, to examine individual state participation in the UPR or the impact the review has had at national levels via this lens. Attending to an ongoing or linear path of development may thus be engaged in work to examine other aspects of the process occurring across cycles, expanding the potential of analysis attentive to linearity. With the completion of three full cycles and the beginning of a fourth, the possibilities for such analyses, alongside the continuation of those grounded in cyclicality, stand to be further explored.

2 The Universal Periodic Review as Utopia Amna Nazir, Alice Storey, and Jon Yorke

Introduction Oscar Wilde stated: [a] map of the world that does not include Utopia is not worth even glancing at, for it leaves out the one country at which Humanity is always landing. And when Humanity lands there, it looks out, and, seeing a better country, sets sail. Progress is the realization of Utopias.1 Utopia2 can be read as a methodology to inform the creation of a better place. It can inspire and propel. In The Principle of Hope, Ernst Bloch observed, ‘the world is propensity towards something, tendency towards something, latency of something, and this intended something means fulfilment of the intending’.3 Informative processes are required to teach the world how the refusal to accept what is can translate unsatisfactory states of being into an ambition for the potentiality of what might be.4 When political, legal, economic, and social protections breakdown and fail us, we need a particular cognitive approach to alter the situation which Rutger Bregman informs: ‘We have to direct our mind to the future. To stop consuming our own discontent. . . . To consider

1 Oscar Wilde, The Soul of Man Under Socialism and Selected Critical Prose (Penguin 2001) 141. 2 Thomas More, Utopia (Everyman 1992); Rutger Bregman, Utopia for Realists: How We Can Build the Ideal World (Little, Brown 2017) 20. Bregman reminds us that, ‘[t]he word utopia means both “good place” and “no place.”’ ibid. He maintains, ‘[i]t’s time to return to utopian thinking. We need a new lodestar, a new map of the world that once again includes a distant, unchartered continent  – “Utopia.”’ ibid, as ‘[w]ithout utopia, we are lost,’ ibid 21. 3 Ernst Bloch, The Principle of Hope (Wiley Blackwell 1986) 1375. Perhaps the viability of a moral enterprise requires us to maintain hope and so we must ensure Bertrand Russell’s ‘world where imagination and hope are alive and active,’ in Bertrand Russell, Political Ideals (Kessinger Publishing 2010) Chapter 1. 4 For the metaphor of the ‘arrow of time’ see Arthur S Eddington, The Nature of the Physical World (Cambridge University Press 1944) 34–36. DOI: 10.4324/9781003415992-4

36  Amna Nazir, Alice Storey, and Jon Yorke alternatives and form new collectives. To transcend this confining zeitgeist and recognise our shared idealism’.5 In the midst of violent troubles we can (we need to) imagine a better world and, consistent with Oscar Wilde, Ruth Levitas places our humanity at the centre of this creative process so we can, ‘think about our conceptions of human needs and human flourishing in those possible futures’.6 Each era may point to examples of the rise of dystopian manifestations which seek to thwart our needs and flourishing. During these times the world’s regulatory mechanisms must respond with creating meaningful ameliorative systems. An ability to cognitively transcend the world’s problems and be able to envisage solutions is essential. The United Nations (UN) is where imagination and hope can flourish.7 However, the institutions and mechanisms need to be easily accessible not just by the executive branch of governments, but by all relevant stakeholders including parliamentarians, lawyers, judges, civil society organisations (CSOs), and victims of human rights violations. An important part of how this can be achieved is through the theory, methodology, and practical application of utopia. This was implicitly recognised by Kofi Annan in 2005 through “In Larger Freedom” Decision Time at the UN,8 when the then-Secretary-General set out his plans and hopes for a greater protection of human rights through the restructuring of the Office of the High Commissioner for Human Rights (OHCHR), the creation of a Human Rights Council (HRC), and the laying of the foundations for a new ‘Universal Periodic Review’ (UPR). The word ‘universal’ to describe the reach of the review did not just provide an encompassing phrase for the body of member states, but it also possessed an inspirational and aspirational quality. Whilst geography, history, and culture reveal there are characteristic differences reflected within the peoples of the world, there are also fundamental principles for the furtherance of humanity and dignity which should be celebrated and protected. This is what the UPR should help to recognise and achieve. Ultimately, utopia through the UPR would be signified through the effective operation of its modalities. These would help ensure improved human rights protections within the state’s domestic jurisdictions. In undertaking its

5 Bregman (n 2) 20. 6 Ruth Levitas, Utopia as Method: The Imaginary Reconstitution of Society (Palgrave Macmillan 2013) xi. 7 In 2014 UNICEF launched the ‘Imagine Project,’ and numerous people sang John Lennon’s song ‘Imagine,’ see UNICEF, ‘OFFICIAL VERSION: Sing IMAGINE with Your Favourite Stars & John Lennon | UNICEF’ (YouTube, 21 November 2014) available at www.youtube.com/watch?v=rpTzkiul8Iw accessed 6 May 2023. 8 Kofi Annan, ‘In Larger Freedom: Decision Time at the UN’ (United Nations Secretary General, 25 April 2005) available at www.un.org/sg/en/content/sg/articles/2005-04-25/ larger-freedom-decision-time-un accessed 15 May 2023 citing the Charter of the United Nations, Preamble.

The Universal Periodic Review as Utopia  37 review, the world’s governments are reminded to apply a ‘good faith’ implementation of the Charter of the United Nations (UN Charter), consistent with the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.9 The more states that complete the package of ratifications of the UN’s nine core human rights treaties and protocols,10 the larger will be the opportunities to protect our freedoms. New futures will emerge where legitimate sovereignty is increasingly identified through the codifying and safeguarding of human rights standards. This is opposed to a preservation of antiquated perspectives of statism which jealously close itself to outside, reasoned viewpoints. The UPR is therefore a multilateral forum for recognising how to ameliorate the harms associated with certain aspects of the ‘Westphalian experience’.11 This is witnessed when outlier states seek to maintain harmful national laws under a falsely claimed legitimacy of sovereignty. Such circumstances can be achieved through a misapplication of Chapter I of the UN Charter. Borrowing from John Rawls,12 a positivist construct is considered in that national laws can be legitimately created, but when their very application is considered at the UPR, both recommending states and CSOs, along with wider actors, may provide points of view which can challenge the legitimacy of state policies. Therefore, the UPR becomes a lens to question the legitimacy of state sovereignty, through a cosmopolitan reflection. The preamble text to the UN Charter confirms in order to achieve, ‘better standards of life in larger freedom’, we must have ‘faith in fundamental human rights’, and we must ‘establish conditions’ in which states respect their obligations under international law.13 If national laws violate international human rights standards in practice,

9 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, A/RES/2625(XXV) UNGA 25th sess. 1970, The General Assembly has affirmed, ‘[e]very State has the duty to fulfil in good faith the obligations assumed by it in accordance with the Charter of the United Nations,’ and that, ‘[e]very state has the duty to fulfil in good faith its obligations under the generally recognized principles and rules of international law,’ ibid 124. 10 UN OHCHR, ‘The Core International Human Rights Instruments and Their Monitoring Bodies’ available at www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments. aspx accessed 15 May 2023. 11 M Cherif Bassiouni, ‘Human Rights and International Criminal Justice in the Twenty-First Century’ in Margaret M deGuzman and Diane Marie Amann (eds), Arcs of Global Justice: Essays in Honour of William A. Schabas (Oxford University Press 2018) 7. 12 John Rawls stated, ‘[a]t some point, the injustice of the outcomes of a legitimate democratic procedure corrupts its legitimacy’ in John Rawls, Political Liberalism (Columbia University Press 2005) 248. 13 The Charter of the United Nations, Preamble states, ‘to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained to promote social progress and better standards of life in larger freedom’.

38  Amna Nazir, Alice Storey, and Jon Yorke the national law in question should be assessed through the UPR and revealed for what it is, under the multilateral consideration. As Edward R. McMahon and Elissa Johnson have argued, the consensual nature of the UPR is ‘slowly chipping away at the national sovereignty argument’ as ‘it makes it more legitimate for states . . . to push for change in the human rights situations in other countries’.14 A new lens (utopia in, or through, the UPR) is provided to bring into stark focus harmful national laws. The UPR is creating new imaginings for the improved future protection of rights, revealing hitherto unexplored opportunities, and bringing together various processes for promoting global change. There are wider implications from what occurred in the first three UPR Cycles (2006–2022).15 The review is now forming a specific synergy with UN human rights entities, including the treaty bodies,16 the Special Procedure mandates (country and thematic),17 and the UN Sustainable Development Goals.18 The UPR is being cited within national parliaments, it is used to contribute to the recognition of the rule of law as applied domestically,19 and as an evidentiary resource to understand how international norms contribute to this through the recognition of customary international law,20 opinion juris, and peremptory norms of general international law (jus cogens).21 Recent initiatives have demonstrated a need for greater clarity on the role of the legal profession, including guidance for both lawyers and judges, on how to use the UPR to appropriately identify the rule of law. Increased transparency from national governments is being witnessed, and thematic processes are being created, for example, the highlevel peer review of global public health policies.22 There are also enhanced

14 Edward R. McMahon and Elissa Johnson, Evolution Not Revolution: The First Two Cycles of the U.N. Human Rights Council Universal Periodic Review Mechanism (Friedrich Ebert Stiftung 2016) 17 available at https://library.fes.de/pdf-files/iez/global/12806.pdf accessed 15 July 2023. 15 See the Universal Periodic Review website available at www.ohchr.org/en/hrbodies/upr/ pages/uprmain.aspx. 16 Including the Security Council and the General Assembly. 17 See Chapter 5 of this research companion by Elvira Domínguez-Redondo and Rhona Smith. 18 United Nations Department of Economic and Social Affairs, ‘The 17 Goals’ available at https://sdgs.un.org/goals accessed 15 May 2023. 19 See the project, Universal Periodic Review 2022 – UK Civil Society Engagement available at www.bcu.ac.uk/law/research/centre-for-human-rights/consultancy/upr-project-at-bcu/ universal-periodic-review-2022-uk-civil-society-engagement and the Project Briefing, ‘Legal Profession’ 16–17 available at https://bcuassets.blob.core.windows.net/docs/upr-projectuk-responses-briefing-march-2023-133245502177921230.pdf accessed 15 July 2023. 20 See chapter 3 by Frederick Cowell. 21 William A Schabas, Customary International Law (Oxford University Press 2021) 21–27. 22 UPR Info, ‘A High-Level Peer-Review Process for Future Pandemic Preparedness: Practical Lessons from the Universal Periodic Review’ (30 November 2021) available at www.uprinfo.org/en/news/high-level-peer-review-process-future-pandemic-preparedness-practical-lessons-universal accessed 5 June 2023.

The Universal Periodic Review as Utopia  39 opportunities for civil society networking and engagement, which, in part, is demonstrated by the authors’ practical engagement with the UPR through their leadership of the UPR Project at BCU (UPR Project). The UPR Project participates in the mechanism as an academic stakeholder and is led by the three co-authors of this chapter. As of July 2023, the UPR Project has submitted 32 stakeholder reports to multiple countries on various human rights issues and has been a panellist at three UPR Pre-sessions.23 Furthermore, following the Paris Principles, the number of National Human Rights Institutions (NHRIs) is increasing around the world,24 which is providing new opportunities for the strengthening of the global network of parliamentarians promoting the norms created in a fulfilment of the Belgrade Principles.25 What is explored below is a reading of the UPR through the ‘utopia’ and ‘dystopia’ lenses. We examine the extent to which utopia appears to have informed Kofi Annan’s restructuring of the OHCHR, and specifically the creation of the UPR. It is argued that this set in motion a mechanism to analyse the translatability of utopia as theory into utopia in practice. We also identify outlier examples which are attempting to thwart the utopian aspiration, in effect seeking to maintain dystopia in many people’s lives. We argue that viewing the UPR’s modalities through a utopian lens leads to the recognition of the spectrum of opportunities for the protection of human rights. Through the UPR, the UN offers a wider, and more encompassing, way out of dystopic practices which are curtailing and violating human rights. This opportunity offered to every member state of the UN provides many reasons for the hope which stakeholders can bring in their participation in the UPR. Selected possibilities were recognised by Kofi Annan in 2005, but as time has moved forward new opportunities have arisen and more are being recognised and created. To understand the continued utility of the UPR is to comprehend the spectrum of possibilities this review has to offer for articulating the standards of international human rights law. It can empower governments and parliamentarians to promote national legislative change, along with informing judicial adjudicative functions, and providing empirical supportive evidence for lawyers dispensing legal advice and presenting argument in court.26 Civil

23 ‘The UPR Project at BCU’ (Birmingham City University) available at www.bcu.ac.uk/law/ research/centre-for-human-rights/consultancy/upr-project-at-bcu accessed 15 May 2023. 24 Principles relating to the Status of National Institutions (The Paris Principles), ‘Adopted by General Assembly resolution 48/134 of’ (20 December 1993) available at www.ohchr.org/ en/professionalinterest/pages/statusofnationalinstitutions.aspx 25 ‘National Institutions for the Promotion and Protection of Human Rights’ A/HRC/20/9 (1 May 2012) available at www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A-HRC-20-9_en.pdf accessed 15 July 2023. 26 For example, the ‘Universal Periodic Review’ has been cited in R. (on the application of AAA (Syria)) v Secretary of State for the Home Department [2022] EWHC 3230 (Admin); Mohammed v Secretary of State for Defence [2017] UKSC 2; K (FGM) Gambia CG, Re [2013] UKUT 62 (IAC); HM (Article 15(c): Iraq), Re [2012] UKUT 409 (IAC); Lodhi v Secretary of State for the Home Department [2010] EWHC 567 (Admin).

40  Amna Nazir, Alice Storey, and Jon Yorke society operating in the social, political, and legal spaces, can also use the UPR to enhance and strengthen their work. Ultimately, the UPR can inform the progress towards a better world. Utopia as Theory in International Human Rights Law In Realizing Utopia: The Future of International Law, Antonio Cassese brought together a panoply of experts of international law and he informed, ‘[w]e simply intend to suggest in utopian terms new avenues for improving the major deficiencies of the current society of states’.27 Human rights stakeholders engage with and attempt to stop the damaging effects caused by certain members of the society of states, and utopian perspectives provide an intrinsic impetus sustaining the driving force for this endeavour.28 The theory of utopia’s contribution to the history of human rights requires a particular conceptualisation of the roles of the actors in the driving-force. In the ‘Introduction’ to Realizing Utopia, Cassese referred to Aldous Huxley’s distinction between two categories of sociologists, being, ‘technicians’ who too complacently accept structures and details, and ‘utopians’, who are occupied with ‘what ought to be’.29 Cassese proposed ‘judicious reformers’30 were needed which are the kind of international law stakeholders who can create an, ‘efficient institutional mechanism for the abolition of outdated legal rules and the formation of more modern and adequate prescriptions’.31 Such stakeholders are the movers and the shakers. In the decade since Realizing Utopia, the qualities of the reformers have been analysed.32 They require multidisciplinary knowledge and skills to deconstruct the complex positivist structures which can be used by certain sovereigns to preserve an ability to inflict human rights violations. In light of this, Isabel Feichtner informs that the judicious reformer needs to be equipped with and utilise ‘other disciplines, be they moral philosophy, economics, or social theory’, to ‘broaden the base for principled contestation’, and in focusing upon legal pluralism, ‘it will be necessary to venture into other disciplines such

27 Antonio Cassese, Realizing Utopia: The Future of International Law (Oxford University Press 2012) xxi. 28 Samuel Moyn, The Last Utopia: Human Rights in History (Harvard University Press 2010); Samuel Moyn views it as, ‘[t]here is no way to reckon with the recent emergence and contemporary power of human rights without focusing on their utopian dimension,’ and that, ‘it is crucial to link the emergence of human rights to the history of utopianism – the heartfelt desire to make the world a better place’ ibid 4, 225. 29 Antonio Cassese, ‘Introduction’ in Antonio Cassese (ed), Realizing Utopia: The Future of International Law (Oxford University Press 2012) xvii. Citing Aldous Huxley, Proper Studies (Chatto and Windus 1929) ix. 30 ibid. 31 ibid xviii. 32 See also Anne Peters, ‘Realizing Utopia as a Scholarly Endeavour’ (2013) 4(2) European Journal of International Law 533–52.

The Universal Periodic Review as Utopia  41 as anthropology or religion not only to make reasoned statements about what the law should be, but already to discern what the law is’.33 To understand the potential impact of utopists informing the UPR it is necessary to consider what happens outside the confines of the positivist conceptions of international law, and to study this broader base through what Levitas recognises as, ‘the fulfilment moment’.34 For our purpose, the normative version of the fulfilment moment is realised when states support and implement UPR recommendations for national legal change to protect human rights. A specific national process to help achieve this is the adoption of a National Mechanism for Reporting and Follow-up (NMRF).35 This NMRF could help bring transparency over the conduct of each part of government as the UPR is implemented. It would also provide civil society with key information to help scrutinise the actions of the executive, the capacity of parliamentarians, and evidentiary documentation for lawyers and judges. Comprehending how this fulfilment moment arises requires a different inspection which reveals the multidisciplinary contributions keeping the driving-force in motion. We argue that a versatile interrogation reveals that embedded within the architecture of the UPR is the theory and practice of utopia; in fact, if utopia is a theory for the desire to make the world a better place (as convincingly explained by Levitas),36 it is a cogent methodology to explain the lifeblood of the UPR. The fulfilment moments of the UPR can therefore be effectively realised when their inherent utopian qualities are brought into focus. The reverse is also true, in that when the UPR is not working as we would hope (perhaps due to stalwart maintenance of outlier state policies), we can see the looming shadow of dystopia. Before we explore these issues, however, we need to comprehend the extent to which ‘utopia’ was a foundational aspect of the creation of the UPR. Utopia as Method in Kofi Annan’s In Larger Freedom On 25 April 2005, Kofi Annan published “In Larger Freedom”: Decision Time at the UN, in which he provided his plan of action and strategic vision for the future direction of the OHCHR. Annan set in motion a new capacity building of the OHCHR, he identified the need for appropriate funding for the global initiatives, the Commission of Human Rights was to be replaced with a new HRC, and a new state peer-review mechanism would be created which became known as the Universal Periodic Review. Recalling the motivation of the

33 Isabel Feichtner, ‘Realizing Utopia through the Practice of International Law’ (2012) 23 European Journal of International Law 1143, 1156–57. 34 Ruth Levitas, Utopia as Method: The Imaginary Reconstitution of Society (Palgrave Macmillan 2013) 12. 35 UN OHCHR, ‘National Mechanisms for Reporting and Follow-up’ (2016) available at www.ohchr.org/sites/default/files/Documents/Publications/HR_PUB_16_1_NMRF_ PracticalGuide.pdf accessed 15 May 2023. 36 Ruth Levitas, The Concept of Utopia (Peter Lang 2011).

42  Amna Nazir, Alice Storey, and Jon Yorke preamble text of the UN Charter, of, ‘[w]e the peoples of the United Nations determined .  .  . to promote social progress and better standards of life in larger freedom’,37 he affirmed the inherent future-looking motivation. Annan utilised utopian expressions in endorsing US President Franklin Roosevelt’s ‘Four Freedoms’. In his State of the Union address in 1941 he stated, ‘[i]n the future days, which we seek to make secure, we look forward to a world founded upon four essential human freedoms’, and after identifying each freedom (of speech and of expression; religious worship; from want; from fear), he repeated each time, ‘anywhere in the world’.38 Annan was concerned that the UN was failing to deliver on promoting freedom globally and he asked us to heed a temporal warning as, ‘[f]uture generations will not forgive us if we continue down this path’.39 Such lack of forgiveness may be derived from the witnessed and/or experience of the denigration of rights and so following the outcome of the Millennium Summit, Annan authored In Larger Freedom: Towards Development, Security and Human Rights for All.40 The not-yet-there utopia was clear and so a ‘strategic vision’41 was set out, ‘[i]n an organization pledged to promote and protect human rights, this is a call to action. In a world plagued by daily assaults on dignity and freedom, it is a call to conscience’,42 (a not-yet action/consciousness) because in language reflecting utopian imaginings: Our objective must be to help bridge the gap between the lofty rhetoric of human rights in the halls of the United Nations and the sobering realities on the ground. The plan of action calls for strengthening the profile and capacities of OHCHR, adopting new approaches, improving its planning and management and significantly expanding its resources.43 Whether the metaphor of a bridge, island or map is offered, the story is the same; the need for a point of view for how to get from here-to-there. The here of an unsatisfactory human rights landscape to the there of a global protection of human freedoms and dignity. How the UN, and specifically the OHCHR, can lead us to the destination needed to be articulated, or at least point to the correct path. In fact, whether ‘utopian’ imaginings are applied,

37 Annan (n 8). Emphasis added. 38 Franklin D Roosevelt, ‘State of the Union Address’ (6 January 1941) available at https:// millercenter.org/the-presidency/presidential-speeches/january-6-1941-state-union-fourfreedoms accessed 27 October 2023. 39 Annan (n 8). 40 UNGA, ‘In Larger Freedom: Towards Development, Security and Human Rights for AllReport of the Secretary General’ (26 May 2005) UN Doc A/59/2005/Add.3 [Emphasis added]. 41 ibid 2. 42 ibid 5. 43 ibid.

The Universal Periodic Review as Utopia  43 or a ‘technician’s’ focus is placed upon the infrastructure of the UN through a ‘normative lens’, Annan recognised it is still a theory of here-to-there, as ‘the gap between rhetoric and reality is wide indeed. Put simply, the challenge is to close that gap’.44 This was a voyage requiring an encompassing effort, as: Our collective task is to find a means to turn international human rights commitments into reality, so that individual people and communities see a real difference in their lives. The challenges are many, and continue to defeat the best efforts of a whole range of national and international actors.45 This was a call to (intellectual) arms which foreshadowed collective engagement and contributions that will emanate from a new review mechanism as, ‘the pursuit of the full enjoyment of human rights is best achieved through local initiative and response. The role of international actors is to support and encourage national reform initiatives’,46 because: It is mainly through action at the national level that international human rights obligations can be translated into reality. Responsibilities falling on [the] OHCHR and other actors are secondary to the primary role of the state. Implementation therefore requires first and foremost working with Governments.47 The need for a new synergy was identified as the ‘OHCHR must engage in a much more concerted manner with Governments’,48 expressed in the formation of, ‘some system for measuring States’ human rights obligations against their actual practice’,49 and that: Country scrutiny be exercised through a system of peer review. . . . This system should be built on the principle of universal scrutiny, whereby all States submit to a review of law and practice concerning their human rights obligations. For such a system to be credible and gain the confidence of all, it will be essential that a fair and transparent method 44 ibid 7. 45 ibid 12. 46 ibid 13. 47 ibid. 48 ibid 14; Along with the role of the UPR, the report affirmed the importance of the role of High Commissioner and the Special Procedure mechanisms, as: ‘OHCHR has a range of tools at its disposal, including the good offices of the High Commissioner, technical cooperation projects and policy advice, cooperation with Governments through the process of reporting to treaty bodies and follow-up to their recommendations, follow-up to recommendations and reports of special procedures, regional and country presence, monitoring and public reporting’, ibid. 49 ibid 22.

44  Amna Nazir, Alice Storey, and Jon Yorke be developed to compile information upon which to base the peer review. . . . The precise details of the peer review will need to be worked out, and in particular it will be important to distinguish a system of peer review by other states from reporting to expert treaty bodies.50 The initial details of the ‘peer review’ for ‘universal scrutiny’, were set out in 2006 within the General Assembly’s Resolution 60/251. The preamble noted the ‘purposes and principles contained in the Charter of the United Nations’, as they have forward looking and evolving strategic aims which included, ‘developing friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and achieving international cooperation in solving international problems’, which require, ‘all states to continue international efforts to enhance dialogue and broaden understanding’, necessitating, ‘cooperation and genuine dialogue’, in which, ‘non-governmental organizations play an important role’.51 It is clear that this was an aspirational plan and in the creation of a then-new HRC,52 in paragraph 5(e) the HRC should: Undertake a universal periodic review, based on objective and reliable information, of 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; the review shall be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity-building needs; such a mechanism shall complement and not duplicate the work of treaty bodies; the Council shall develop the modalities and necessary time allocation for the universal periodic review mechanism within one year after holding of its first session.53 Then, on 18 June 2007 the newly created HRC adopted Resolution 5/1, which set out the initial modalities, principles and objectives of the UPR. Important for the utopian lens is that the UPR should have an objective for the ‘improvement of the human rights situation on the ground’ (in the individual countries).54 We have not yet arrived at this protection on the terra firma of our islands of utopia. Perhaps for many issues it will be an ongoing navigational project for the ‘fulfilment of the State’s human rights obligations

50 ibid [Emphasis added]. 51 UNGA Res 60/251, UN GAOR, 60th sess, 72nd plen mtg, Agenda Items 46 and 120 (3 April 2006) UN Doc A/Res/60/251 (‘Resolution 60/251’), preamble. 52 ibid para 1. 53 ibid para 5(e); [Emphasis added]. 54 UNHRC, Institution Building of the United Nations Human Rights Council, HRC Res 5/1, UN HRC OR, 5th sess, Annex [IB] (18 June 2007) UN Doc A/HRC/RES/5/1, para 4(a).

The Universal Periodic Review as Utopia  45 and commitments and assessment of the positive developments and challenges faced by the State’.55 It will provide ‘enhancement of the State’s capacity and in technical assistance, in consultation with, and with the consent of, the State’,56 and perhaps this respectful, and transparent help offered through the UPR may smoothen the sharp edges of the thorny issues, and the consensual nature of the review and the all-encompassing modalities may help calm the waters to the islands of utopia. Identifying Utopia Within the UPR Resolution 5/1 provided the basis for the principles, objectives and modalities of the mechanism, as McNeilly sets out in Chapter 1, and, as three UPR cycles have now concluded, there is a wealth of evidence to examine the extent to which the theory of utopia is being translated into practical improvement for protecting rights domestically. In fact, in 2022, UPR Info and Friedrich Ebert Stiftung carried out a study titled ‘Beyond Reporting: Transformational Changes on the Ground’, identifying a plethora of examples where the UPR has had a positive impact for human rights on the ground.57 The case studies provided are from all across the world and cover a wide range of human rights issues, for example, fighting against human trafficking in Jordan, recognising the basic right to housing in Canada, promoting youth agency in Morocco, and many more. This section identifies further examples of utopian practice within the mechanism. The UPR was created to complement, rather than duplicate, the work of existing UN bodies and human rights initiatives.58 There has been a mixed reaction to this in practice. While Olivier de Frouville has faulted the UPR for ‘overshadowing the work of the treaty bodies and of the special procedures’,59 Manfred Nowak has identified that ‘most [s]tates seem to take the UPR more seriously than the [s]tate reporting procedure before treaty bodies’,60 offering more empowerment to the UPR mechanism. Furthermore, the treaty bodies can only monitor implementation of the individual treaties if a state has ratified

55 ibid para 4(b). 56 ibid para 4(c). 57 Valeria Reyes Menéndez, Beyond Reporting: Transformational Changes on the Ground (UPR Info 2022) available at www.upr-info.org/sites/default/files/general-document/2022-07/ Beyond%20Reporting-EN-Web.pdf accessed 26 April 2023. 58 UNHRC Res 5/1 para 3(f); UNGA Res 60/251 para 5(e). 59 Olivier de Frouville, ‘Building a Universal System for the Protection of Human Rights: The Way Forward’ in M Cherif Bassiouni and William A Schabas (eds), New Challenges for the UN Human Rights Machinery: What Future for the UN Treaty Body System and the Human Rights Council Procedures? (Intersentia 2011) 251. 60 Manfred Nowak, ‘It’s Time for a World Court of Human Rights’ in M Cherif Bassiouni and William A Schabas (eds), New Challenges for the UN Human Rights Machinery: What Future for the UN Treaty Body System and the Human Rights Council Procedures? (Intersentia 2011) 23.

46  Amna Nazir, Alice Storey, and Jon Yorke them,61 providing the UPR with the utopian opportunity to fill a gap in the monitoring of human rights. There are underlying strengths to how the UPR’s complementing process can work in practice. The UPR has had success in keeping states accountable to their international human rights obligations in terms of the nine core treaties. Frederick Cowell has identified that member state recommendations from the UPR ‘have been complementing and enhancing the work of the human rights treaty bodies in relation to reservations’.62 When a state becomes a party to a treaty, the pacta sunt servanda principle applies, meaning that treaties are binding and states must perform them in good faith, a principle which the Vienna Convention on the Law of Treaties (VCLT) enumerated.63 However, states may also lodge ‘reservations, understandings, and declarations’ alongside its ratification of a treaty. According to the VCLT, a ‘reservation’ is defined as ‘a unilateral statement . . . made by a state . . . whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that [s]tate’, and it can be lodged at any time between signature and ratification.64 States have the sovereign right to place reservations against a treaty, although there is an exception to this in Article 19(c) VCLT, which provides that the reservation must not be ‘incompatible with the object and purpose of the treaty’.65 Cowell’s study demonstrates that, recommendations on reservations can have a positive impact on some [s]tates’ commitment to human rights law, pushing them towards the removal of recommendations incompatible with the object and purpose of a human rights treaty.66 In encouraging states to adhere to the full spectrum of international human rights, in particular through avoiding harmful reservations that limit the effect of human rights domestically, the UPR is specifically contributing to the strengthening and realisation of human rights on the ground. However, this is not the case for every state. The United States has been criticised by UN member states and scholars alike for its reservations lodged

61 Felice D Gaer, ‘A Voice Not an Echo: Universal Periodic Review and the UN Treaty Body System’ (2007) 7(1) Human Rights Law Review 109, 125. 62 Frederick Cowell, ‘Reservations to Human Rights Treaties in Recommendations from the Universal Periodic Review: An Emerging Practice?’ (2021) 25 The International Journal of Human Rights 274, 275. 63 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force on 27 January 1980) 1155 UNTS 331; 8 ILM 679 (1969) [hereinafter referred to as ‘VCLT’]. 64 ibid Article 2(d). 65 ibid Article 19(c). 66 Cowell (n 62) 275.

The Universal Periodic Review as Utopia  47 against the International Covenant on Civil and Political Rights (ICCPR), in particular Article 6 (the right to life) and Article 7 (the right to be free from torture and cruel, inhuman, or degrading treatment), on the basis that these provisions are non-derogable and are therefore incompatible with the object and purpose of the ICCPR.67 In fact, these reservations are described by William Schabas as ‘far and away the most extensive reservations to the capital punishment provisions of any international human rights treaty’.68 While recommendations have been made to the United States during its three UPRs to date regarding removal of these reservations, no action has been taken, indicating that the UPR still has some way to go to assist the US in abolishing both the federal and state death penalty, and achieving its utopian ideal. A further way that the UPR and treaty bodies complement each other, is that each mechanism has its own strengths and weaknesses. Valentina Carraro has identified that the treaty bodies’ strengths lie in ‘providing accurate overviews of states’ internal situations and learning opportunities’, whereas the ‘UPR’s perceived strength lies in generating peer and public pressure’ on states.69 Where the treaty bodies can lack impetus in terms of ensuring states adhere to their recommendations, the UPR can seemingly fill that gap by allowing peer-review to encourage adherence with treaty body conclusions and recommendations. There has also been a concerted effort to synergise the UPR and the UN’s Sustainable Development Goals (SDGs). The SDGs form the 2030 Agenda for Sustainable Development across the world, comprised of 17 themed goals in acknowledgement of the interconnectivity of rights.70 As Judith Bueno de Mesquita et al demonstrated in the context of health rights, the UPR can be used to monitor the implementation of the SDGs and, importantly, keep states

67 UN Human Rights Committee, ‘Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Comments of the Human Rights Committee – United States of America’ (7 April 1995) UN Doc CCPR/C/79/Add.50 para 14; William A Schabas, The Abolition of the Death Penalty in International Law (3rd edn, Cambridge University Press 2002) 79; Chrissy Fox, ‘Implications of the United States’ Reservations and Non-Self-Executing Declaration to the ICCPR for Capital Offenders and Foreign Relations’ (2003) 11 Tulsa Journal of Comparative and International Law 303, 307; Alice Storey, ‘The USA’s Engagement with the UN’s Human Rights Committee on the Question of Capital Punishment’ (2022) 17 Intercultural Human Rights Law Review 53. 68 Schabas (n 67) 79. 69 Valentina Carraro, ‘Promoting Compliance with Human Rights: The Performance of the United Nations’ Universal Periodic Review and Treaty Bodies’ (2019) 63(4) International Studies Quarterly 1079, 1090. 70 United Nations Department of Economic and Social Affairs, ‘Sustainable Development Goals: The 17 Goals’ available at https://sdgs.un.org/goals accessed 15 May 2023.

48  Amna Nazir, Alice Storey, and Jon Yorke accountable to the goals.71 To assist with this, the Danish Institute for Human Rights has created ‘The SDG-Human Rights Data Explorer’, which is a searchable database that links monitoring information from the international human rights system to the Goals and targets of the 2030 Agenda for Sustainable Development. It allows users to explore the recommendations and observations of international human rights monitoring bodies, as they relate to the implementation of the SDGs and their 169 targets in specific countries.72 This excellent resource includes recommendations from the UPR, which is of particular help to CSOs that engage with both the UPR and SDGs. We argue that the UPR is meeting its utopian ideal to complement and not duplicate the work of other UN bodies and, as demonstrated through the examples provided above, we believe that this provides a unique opportunity to solidify global human rights protections. At this point, we should engage in a brief discussion of whether solidifying a global universal approach to international human rights really is a utopian ideal. The first two principles of the UPR are ‘universality’73 and ‘equal treatment’74 indicating that the UPR aligns itself with the universalist view of international human rights. It can be questioned whether this approach does provide a utopian experience for all people across the world. Consider, for example, the role of cultural relativism in the problem of the death penalty, which Amna Nazir has found to have ‘the potential to pose a barrier to the realisation of universal human rights’.75 For example, retentionist Muslim countries tend to rely on Islamic law principles to legitimise the application of the death penalty without acknowledging the pluralistic nature of the Islamic legal tradition, or the use of pragmatic eclecticism, which can contribute to safeguarding the right to life. Nazir suggests that, in the context of capital punishment, ‘the historical, cultural and religious background’ should be explored,76 an idea that could be replicated across other human rights issues. A core objective of the UPR is ‘[t]he improvement of the human rights situation on the ground’.77 As Annan set out his utopian vision through In Larger

71 Judith Bueno de Mesquita and others, ‘Monitoring the Sustainable Development Goals through Human Rights Accountability Reviews’ (2018) 96(9) Bulletin of the World Health Organization 627, 629. 72 The Danish Institute for Human Rights, ‘The SDG-Human Rights Data Explorer’ available at www.humanrights.dk/sdg-human-rights-data-explorer accessed 15 May 2023. 73 UNGA Res 5/1 (18 June 2007) para 3(a). 74 ibid para 3(c). 75 Amna Nazir, ‘The Universal Periodic Review and Muslim States’ Engagement’ (2019) 15 Journal of International Law and Islamic Law 1, 25. 76 ibid 26. 77 ibid para 4(a).

The Universal Periodic Review as Utopia  49 Freedom, he made it clear that the UN must ‘help bridge the gap between the lofty rhetoric of human rights in the halls of the United Nations and the sobering realities on the ground’.78 The UPR has an impact across the globe, as McMahon and Johnson identified in a wide-scale study of UPR Cycles 1 and 2 that the UPR in general ‘appears to be generating some traction in promoting human rights’.79 More specific examples include Cristian Talesco’s and Brigette Valentine’s findings that ‘the UPR has proved an important mechanism in advocating the protection of human rights in Timor-Leste’ as it rebuilds its domestic human rights structure since gaining independence from Indonesia.80 Others have contended that there are further opportunities for the UPR to impact human rights on the ground, for example, Damian Etone suggests in Chapter 6 that the UPR could develop its utopian successes further by supporting and promoting transitional justice mechanisms. Namibia’s UPR provides a further example of this utopian ideal being implemented in practice. During its first cycle of UPR in 2010, a clear attack on women’s rights was uncovered, as ‘young women who were HIV positive . . . had been sterilized at public hospitals in Namibia without their informed consent’.81 The information provided throughout the 2010 UPR, along with two accepted recommendations on this point from the United Kingdom and Canada,82 contributed to the practice of sterilisation without informed consent being prohibited83 by the Supreme Court of Namibia in LM and Others v The Government of the Republic of Namibia.84 Although the UPR alone did not direct this change in law, it did provide a further stimulus from the international community to proscribe this abhorrent practice, ultimately playing a part in an important development for women’s rights in Namibia. Currently, the UPR has a confined direct impact on domestic laws and policies,85 but it should be

78 Annan (n 8). 79 McMahon and Johnson (n 14) 3. 80 Cristian Talesco and Brigette S Valentine, ‘The Universal Periodic Review of Timor-Leste: Achieving Justice for Past Human Rights Abuses Under Indonesian Rule’ in James Gomez and Robin Ramcharan (eds), The Universal Periodic Review of Southeast Asia: Civil Society Perspectives (Asia Centre 2018) 139–40. 81 UNHRC, ‘National Report of Namibia’ (10 November 2010) UN Doc A/HRC/ WG.6/10/NAM/1, para 14. 82 UNHRC, ‘Report of the Working Group on the Universal Periodic Review: Namibia’ (24 March 2011) UN Doc A/HRC/17/14, para 96.54 (United Kingdom), para 96.60 (Canada). 83 UNHRC, ‘National Report of Namibia’ (28 October 2015) UN Doc A/HRC/WG.6/24/ NAM/1 para 113; UNHRC, ‘Summary of Stakeholders Information: Namibia’ (6 November 2015) UN Doc A/HRC/ WG.6/24/NAM/3, para 43; UPR Project at BCU Stakeholder Report para 10. 84 LM and Others v Government of the Republic of Namibia (1603 of 2008) [2012] NAHC 211 (30 July 2012). 85 However, examples are significantly increasing, see UPR Info and Friedrich Ebert Stiftung (n 57).

50  Amna Nazir, Alice Storey, and Jon Yorke viewed as one part of a homogenous group of UN and regional bodies seeking the solidification of human rights protections globally. Moreover, in LM and Others, while the Namibian Supreme Court affirmed that informed consent must be provided in cases of sterilisation,86 it dismissed the claim that they were sterilised because they were HIV positive.87 Alicia Yamin and Corey Prachniak-Rincon find that this decision ‘failed to consider the level of discrimination and bias faced by women living with HIV in practice in Namibia’.88 Noting that this was still a fundamental human rights issue to be resolved, the UPR Project turned its attention to the rights of women and girls living with HIV in Namibia.89 In October 2020, the UPR Project submitted a report to Namibia’s Cycle 3 review, which focused on two key issues for women and girls living with HIV: (1) the effect of HIV-related stigmatisation and (2) prevention of mother-tochild HIV transmission (PMTCT).90 Our report received significant attention and citations from the OHCHR in its Stakeholder Summary document,91 and in March 2021, the UPR Project was invited to be a panellist for Namibia’s UPR Pre-session, where we discussed the core issues relating to the rights of women and girls with HIV with UN Member States and other CSOs. As this Pre-Session was conducted online due to Covid-19 restrictions, instead of inperson in Geneva, this limited the scope for further engagement with other UN permanent missions. We did engage in email discussions with selected permanent missions, but our experience (as detailed below) is that in-person advocacy is more effective in terms of positively influencing Member State recommendations. Nevertheless, during Namibia’s Cycle 3 review it received three specific recommendations on women and girls with HIV, focusing on stigmatisation and PMTCT, appearing to use the information provided by the UPR Project.92

86 LM and Others (n 84) para 80. 87 ibid para 83. 88 Alicia Ely Yamin and Corey Prachniak-Rincon, ‘Compounded Injustice and Cautionary Notes for “Progress” in the Sustainable Development Era: Considering the Case of Sterilization of Women Living with HIV’ (2018) 41 Harvard Journal of Law & Gender 395, 422. 89 UPR Project at BCU Centre for Human Rights, ‘Namibia’ available at www.bcu.ac.uk/ law/research/centre-for-human-rights/consultancy/upr-project-at-bcu/upr-project-atbcu-namibia accessed 15 July 2023. 90 ibid. 91 UNHRC, ‘Summary of Stakeholders’ Submissions on Namibia: Report of the Office of the United Nations High Commissioner for Human Rights’ (18 February 2021) UN Doc A/HRC/WG.6/38/NAM/3, paras 40, 42. 92 UNHRC, ‘Report of the Working Group on the Universal Periodic Review: Namibia’ (29 June 2021) UN Doc A/HRC/48/4 para 138.92 ‘Increase its efforts to tackle stigmatization of and discrimination against persons, especially women and girls infected with HIV/ AIDS, by prioritizing support and education’ (South Africa); para 138.200 ‘Intensify its efforts to combat HIV/AIDS and prevent mother-to-child transmission’ (Thailand); para 138.205 ‘Step up efforts to end stigmatization and discrimination against women and children infected with HIV/AIDS (Kenya).

The Universal Periodic Review as Utopia  51 This was a significant improvement, as Namibia had received zero recommendations specifically on women with HIV in Cycle 2. In its previous cycles, HIV recommendations had been broad and bracketed all people living with HIV together, instead of demonstrating the intersectional experiences and discrimination that women living with HIV specifically face. Affirming its support of protecting women and girls’ right to health, the Namibian government attended its UPR Pre-Session and agreed to work with CSOs to ensure effective implementation of recommendations after its Cycle 3 review. This included the UPR Project, through which we will help to ensure the recommendations on women living with HIV are implemented into health policy and practice in Namibia. It was a positive initial step for Namibia to begin working with CSOs and the extent to which this is implemented in the period leading to the next review will be monitored. The involvement of CSO engagement within the UPR process as ‘stakeholders’ is a distinct feature of the UPR. Currently, stakeholders can engage in the National Consultations, submit individual and joint stakeholder reports, attend the review, speak at the adoption of the review, and assist in the implementation of UPR recommendations domestically. Scholars have identified the importance of CSO engagement with the UPR, for example, Miloon Kothari says that ‘[t]he role of [civil society stakeholders] has been crucial to the success and effectivity of the UPR mechanism’.93 Yet others have argued that this engagement is somewhat narrow. McMahon and Johnson note that ‘[t]here are only limited formal opportunities for CSO engagement’94 and Alice Storey suggests additional ways in which CSOs could formally engage with the UPR, without adding an additional burden to the OHCHR or Member States.95 Natalie Baird’s assessment of CSO engagement with Pacific Island States showed that a high number of international CSO reports, whilst submitted with good intentions, could have the effect of ‘distorting [the] authentic local voice’.96 Baird suggests that international CSOs should try to form a closer connection with their national counterparts,97 something which we believe should be replicated across the UPR and is a point of action for us to strengthen the UPR Project. Our experience to date, through the UPR Project, is that whilst all our stakeholder submissions have been cited by the OHCHR, in order to truly influence Member State recommendations stakeholders must engage in

93 Miloon Kothari, ‘Study on Emerging Good Practices from the Universal Periodic Review’ UN OHCHR (9 June 2021) para 66. 94 McMahon and Johnson (n 14). 95 Alice Storey, ‘Challenges and Opportunities for the UN Universal Periodic Review: A Case Study on Capital Punishment in the USA’ (2021) 90 UMKC Law Review 129, 143–44. 96 Natalie Baird, ‘The Role of International Non-Governmental Organisations in the Universal Periodic Review of Pacific Island States: Can “Doing Good” Be Done Better?’ (2015) Melbourne Journal of International Law 18. 97 ibid.

52  Amna Nazir, Alice Storey, and Jon Yorke advocacy prior to the Working Group session. An example of this can be demonstrated through the UPR Project at BCU’s engagement with the UK’s Cycle 4 review. In September 2022, following its submission of two stakeholder reports,98 the UPR Project spoke at the 41st Pre-Session in Geneva regarding the United Kingdom in advance of its Cycle 4 review in November 2022. This allowed for other government delegations to consider key themes for their recommendations, including the ‘Bill of Rights’ Bill, the rights of migrants, asylum seekers, and refugees, detention and imprisonment, and racism.99 Subsequently, we were also invited to attend the ‘Informal Exchange of Views with EU Member States’ on the same key themes, prior to the United Kingdom’s review. Whilst in Geneva, we met with UN government delegations and discussed what is required to help to achieve protection of human rights in the United Kingdom, ultimately leading to important recommendations being made to the United Kingdom on themes we had raised as significant. Being present in Geneva allowed for the meeting of other UK CSOs that had submitted stakeholder reports and were attending the Pre-Session. Whilst engaging in these dialogues, we reflected upon the fact that CSOs in the United Kingdom must be better informed on the modalities of the UPR and to see that the United Kingdom government is not being as transparent as it could be regarding the opportunities for CSOs to engage with both the executive and parliament. One of the United Kingdom’s three NHRIs, the Equality and Human Rights Commission (EHRC), should be commended as it also understood this need and thereafter created the funded project titled ‘Universal Periodic Review 2022 – Civil Society Engagement’. The funding bid was awarded to the UPR Project at BCU, allowing us to provide training events for the UK’s CSOs, including a live streaming of the UK’s UPR, a conference to help equip CSOs, a symposium in the UK Parliament, and a roundtable discussion for members of the United Kingdom’s legal profession.100 On 27 March 2023, the UK government presented its responses to the HRC, and this allowed for the UPR Project to publish a timely Briefing Document on the outcome of the review, within which we identify key issues that

98 These reports focused on women’s rights (including access to abortion and domestic abuse) and minorities and deprivation of liberty and are available at www.bcu.ac.uk/law/research/ centre-for-human-rights/consultancy/upr-project-at-bcu/upr-project-at-bcu-uk accessed 25 April 2023. 99 See The UPR Project at BCU, ‘Joint-Submission of the BCU Centre for Human Rights and 4 King’s Bench Walk, Inner Temple’ (29 August 2022) available at https://bcuassets.blob.core.windows.net/docs/the-upr-project-at-bcu-pre-session-statement-on-theuk-133126348239673018.pdf accessed 15 July 2023. 100 The project materials are available at www.bcu.ac.uk/law/research/centre-for-humanrights/consultancy/upr-project-at-bcu/upr-project-at-bcu-uk accessed 15 July 2023.

The Universal Periodic Review as Utopia  53 can contribute to the realisation of the UPR in the United Kingdom. Amongst our recommendations we stated: 1 Establish a National Mechanism for Reporting and Follow-up which should identify appropriate aims, objectives, and indicators for the effective implementation of UPR recommendations. This should include the participation of all UK governments and have input from each of the National Human Rights Institutions. 2 Allow meaningful participation and contributions from civil society organisations, parliamentarians, the devolved administrations, and those who have a lived experience as victims of human rights violations when engaging with the UPR and other UN mechanisms. 3 Present its responses to Parliament to ensure that its approach to the UPR can be effectively scrutinised. 4 Publish a timetable providing all stakeholders with time to prepare appropriately so as to be able to make reasoned contributions to future UPR submissions. Engagement events should be held throughout the present and future UPR cycles so that an informed, evidenced-based approach is adopted. 5 Improve its engagement with other UN mechanisms, including the UN treaty bodies, the Special Procedures, and achieve the standards identified within each of the 17 Sustainable Development Goals. The government should also enhance its cooperation with international organisations which have standing to operate as observers, such as the Permanent Delegation of the Council of Europe, and the Permanent Delegation of the European Union. The UPR Project is now working alongside the UK parliament and other CSOs to provide expert guidance on implementing these recommendations domestically. Whilst this work was specific to the UK’s UPR, there are wider lessons to be learned in terms of the UPR achieving its utopian ideal. Ensuring that there is a mobilised and informed civil society throughout the UPR cycle of each Member State is fundamental to the success of the UPR and achieving utopia. There are existing coalitions of CSOs in countries across the world who work together throughout the UPR cycle, for example, the Kenya UPR Stakeholder Coalition was created in 2008 and now ‘has a membership of at least 250 organizations’.101 Similar coalitions exist in Malaysia and Denmark,102 and, following the work of the UPR Project’s EHRC-funded work, in the United Kingdom. This work should be built on by other states across the world.

101 Kothari (n 93) para 68. 102 ibid para 69.

54  Amna Nazir, Alice Storey, and Jon Yorke Recognising the Persistency of Dystopian Elements As Arthur Giannattasio observes, ‘utopian discourses are burdened by a dystopian potential as they embody an instrumental dimension of reason which conveys, although with good intent expectation or hope, historic bloodshed experiences’.103 According to a utopian perspective, it is essential to discover the source of present malaise, injustice and misery in order to achieve a better place. We must first recognise the dystopia to achieve the ultimate utopia. In many ways the UPR helps to cast light over the dystopian elements in a state, and provides guidance for the change of policy to protect rights. However, some dystopian elements remain persistent. The term ‘dystopia’ was first used by John Stuart Mill during his speech in the House of Commons in 1868 where he criticised the British government’s land policy, terming its sponsors as ‘dys-topians or caco-topians . . . what they appear to favour is too bad to be practicable’.104 It could be argued that we are living under a dystopian shadow, and at times it manifests on the ground, and at different locations. Indeed, it is harmful state practices that are the antithesis to the utopian UPR vision for the realisation of universal human rights. This is also reflected in states’ engagement with the UPR’s modalities and it is recognising and challenging these dystopian elements that will help ameliorate the harms caused by maintaining certain national laws under the guise of state sovereignty. Under the UPR process, the State under Review (SuR) is expected to engage in a national consultation process with relevant stakeholders to better inform its national report. However, a dystopian practice often observed is the governmental control of information, or at least, the lack of transparency over policy implementation. It is often argued that states will fail to engage in meaningful consultations. One of the key reasons for a national consultation process is to allow stakeholders, such as CSOs, to provide valuable input into the SuR’s national report and provide independent and impartial perspectives against the State’s sanitised version of its human rights record. It also gives a voice to the marginalised and vulnerable groups which highlights the universality and indivisibility of human rights. Hence national consultations allow for a more accurate and comprehensive portrayal of the human rights situation on the ground and it is also able to reflect progressive efforts made by the state to ameliorate any human rights violations. Additionally, the influence of stakeholders can help identify that the proposed recommendations are substantial, relevant, and important. However, no detailed instructions are provided on the manner in which the consultative national process should be carried out. As a result, only a small

103 Arthur Roberto Capella Giannattasio, ‘International Human Rights: A Dystopian Utopia’ (2014) 4 ARSP: Archiv für Rechts- und Sozialphilosophie 514, 514. 104 House of Commons Debate (Hansard, March 12, 1868) vol. 190, col 1415, 1516–17 (remarks of J Stuart Mill).

The Universal Periodic Review as Utopia  55 number of state reports and submissions have identified the specific nature of consultations such as the time, location, and number of participants.105 One such example is Pakistan which, in Cycle 2, listed the date and location of its consultations with government departments and civil society organisations but failed to disclose their identities or the number of organisations actually involved.106 Similarly, the United Arab Emirates held several meetings and workshops ‘with a wide range of civil society organisations and government bodies’107 in advance of Cycle 3, but no further detail was provided. Consequently, Nazir argues the true level of cooperation and engagement with stakeholders cannot be determined and can include stifling effective interpretation of international human rights law.108 Bahrain has also been criticised for failing to hold nationally accessible consultations. In Bahrain’s Cycle 1 review, the state failed to consult with ten highly active human rights groups, including the Bahrain Centre for Human Rights despite an appeal to the prime minister to include them in the consultation process. In fact, the stakeholders that did participate revealed that the consultations held ‘were for information not consultation, and that their comments had no reflection in the final national report’.109 Also integral of each review are the OHCHR-compiled reports, as the Compilation of UN Information provides key findings and conclusions from independent UN mechanisms and the Stakeholder Summary provides an overview of all reports submitted by civil society organisations. Yet, as scholars have identified, how the OHCHR compiles these two reports is not clear and to achieve the utopian ideal, more transparency is required from the OHCHR,110 particularly as transparency is one of the UPR’s core principles.111 The outcome of the review can further be influenced by the quality of statements and recommendations received. For example, on many occasions

105 Allehone Mulugeta Abebe, ‘Of Shaming and Bargaining: African States and the Universal Periodic Review of the United Nations Human Rights Council’ (2009) 9 Human Rights Law Review 4, 10. 106 UNHRC, ‘National Report Submitted in Accordance with Paragraph 15(a) of the Annex to Human Rights Council Resolution 5/1: Pakistan’ (6 August 2012) UN Doc A/HRC/ WG.6/14/PAK/1, Annex 1. 107 UNHRC, ‘National Report Submitted in Accordance with Paragraph 15(a) of the Annex to Human Rights Council Resolution 5/1: United Arab Emirates’ (13 November 2017) UN Doc A/HRC/WG.6/29/ARE/1 para 5. 108 Amna Nazir, ‘A UPR Perspective on Capital Punishment and the Kingdom of Saudi Arabia’ (2022) 19(1) Muslim World Journal of Human Rights 77, 79. 109 UNHRC, ‘Written Statement Submitted by Cairo Institute for Human Rights Studies (CIHRS), a Non-Governmental Organization in Special Consultative Status’ (28 May 2008) UN Doc A/HRC/8/NGO/42, 2, para 3. 110 Alice Storey and Mark Eccleston-Turner, ‘Transparency, Accountability, and Legitimacy in the United Nations’ Human Rights Council’s Universal Periodic Review’ in Salvador Santino Regilme Jr and Irene Hadiprayitno (eds), Human Rights at Risk: Rethinking International Institutions, American Power, and the Future of Dignity (Rutgers University Press 2022). 111 UNGA Res 5/1 (18 June 2007) para 3 (g).

56  Amna Nazir, Alice Storey, and Jon Yorke during Cycle 1, state representatives would stay overnight in order to enrol onto the list of speakers which would open at 8.45am the day before the review. States would adopt strategies that involved getting blocks of allied states to speak together thereby enhancing the impact of their praise and using up the majority of the allotted time. This tactic was seen in the first review of Bahrain which was dominated by its allied states delivering positive, empty statements. These allies included Palestine, India, Pakistan, Qatar, Tunisia, the UAE, Saudi Arabia, Turkey, Malaysia, Algeria, Libya, and Cuba.112 Similarly, Tunisia’s review heard from numerous allies113 giving the impression that it was ‘an exercise in filibustering’.114 As a result of political and regional allies dominating the review, many countries inscribed on the speakers’ list did not get a chance to participate due to insufficient time.115 Regionalism through protecting allied states from scrutiny continued to impact the efficacy of most Cycle 1 reviews.116 Using the Organisation of Islamic Cooperation (OIC) as an example, Qatar’s review heard from 49 states,117 with only six (non OIC) asking critical questions.118 The implications of this are not to be understated. Filibustering against states which are in violation of their human rights obligations will dilute the review process and hinder the opportunity to question state practice and lobby for change.119 As a result of this drawback to the UPR mechanism, Decision 17/119 was adopted in 2011 to allow the process to become fairer and more transparent for future cycles. The speakers’ list now opens a week before the review and the first speaker is drawn by lot with the list proceeding alphabetically from

112 See UNHRC, ‘Report of the Working Group on the Universal Periodic Review: Bahrain’ (9 April 2008) UN Doc A/HRC/WG.6/1/BHR/4, paras 19–31. 113 The first 15 countries to speak in the interactive dialogue were Kuwait, Palestine, Pakistan, Philippines, Chad, Saudi Arabia, the Russian Federation, Slovenia, China, India, Madagascar, Ghana, Mauritania, Bangladesh and Angola. UNHRC, ‘Report of the Working Group on the Universal Periodic Review: Tunisia’ (22 May 2008) UN Doc A/HRC/8/21, paras 12–26. 114 Gareth Sweeney and Yuri Saito, ‘An NGO Assessment of the New Mechanisms of the UN Human Rights Council’ (2009) 9(2) Human Rights Law Review 203, 210. 115 Emma Hickey, ‘The UN’s Universal Periodic Review: Is It Adding Value and Improving the Human Rights Situation on the Ground? A Critical Evaluation of the First Cycle and Recommendations for Reform’ (2013) 7 ICL Journal 1, 41. 116 See for example the reviews of Azerbaijan, Bangladesh, Jordan, Malaysia, Saudi Arabia, Uzbekistan, United Arab Emirates, Yemen which were dominated by other OIC states delivering complimentary statements and few critical questions or recommendations. 117 Algeria, Azerbaijan, Bahrain, Bangladesh, Belarus, Bosnia and Herzegovina, Brazil, Brunei Darussalam, Canada, Chile, Cuba, Djibouti, DPRK, Egypt, France, Hungary, Indonesia, Iran, Kazakhstan, Kuwait, Kyrgyzstan, Lebanon, Libya, Malaysia, Mexico, Morocco, Nepal, Nicaragua, Norway, Oman, Pakistan, Philippines, Russia, Saudi Arabia, Singapore, Slovenia, Sri Lanka, Spain, Sweden, Syria. Sudan, Tunisia, Turkey, United Arab Emirates, United Kingdom, Uzbekistan, Venezuela, Yemen. 118 Brazil, Canada, Norway, Spain, Sweden, United Kingdom. 119 See Eduard Jordaan in chapter 8.

The Universal Periodic Review as Utopia  57 that point. States are permitted to swap places if they should so desire. Strict time limits have also been enforced in regards to state speaking time.120 This change was seen in Bahrain’s second review which heard from a range of states such as Slovenia, Spain, Sudan, Switzerland, Thailand, Turkey, and the UAE allowing for a more balanced approach.121 Hearing from states that are not from the state under review’s regional group reduces the chances of bias and praise. It is important to note that the HRC makes it clear that ‘the state under review is sovereign in addressing the questions and/or issues it chooses to answer of those transmitted to it by the troika members or raised during the proceedings of the working group’.122 This was reflected in North Korea’s first review where it failed to accept a single recommendation.123 Refusing to address vital human rights issues put forth by other member states demonstrates a lack of genuine engagement with the mechanism and suggests the state under review is merely paying lip service to the UPR and using sovereignty as a shield to avoid investigation into its human rights abuses. In order to achieve a successful UPR for the solidification of human rights, the state under review needs to address all recommendations put forward to it, providing a clear explanation for any recommendations it is unable to accept in order for the international community to understand what is preventing acceptance and enable ways to potentially overcome this. At the same time, it must also be noted that the potential impact of recommendations, on the human rights situation of a country, varies depending on the quality of recommendations that are issued during the review session (emphasis added). Edward R. McMahon has categorised recommendations on a scale of one to

120 HRC Decision 17/119, ‘Follow-up to the Human Rights Council Resolution 16/21 with regard to the Universal Periodic Review’ (19 July 2011) UN Doc A/HRC/DEC/17/119, paras 5–8: ‘The established procedures, which allow three minutes speaking time for Member States and two minutes for observer States, will continue to apply when all speakers can be accommodated within three hours and thirty minutes available to Member and observer States. Should it be impossible to accommodate all speakers within three hours and thirty minutes based on three minutes speaking time for Member States and two minutes for observer States, the speaking time will be reduced to two minutes for all. If all speakers still cannot be accommodated, the speaking time will be divided among all delegations inscribed so as to enable each and every speaker to take the floor’. 121 See UNHRC, ‘Report of the Working Group on the Universal Periodic Review: Bahrain’ (23 May 2012) UN Doc A/HRC/WG.6/13/L.4, paras 26–33. 122 ibid para 5. 123 Walter Kalin, ‘Ritual and Ritualism at the Universal Periodic Review: A Preliminary Appraisal’ in Hilary Charlesworth and Emma Larking (eds), Human Rights and the Universal Periodic Review: Rituals and Ritualism (Cambridge University Press 2014) 31. See UNHRC, ‘Report of the Working Group on the Universal Periodic Review: Democratic People’s Republic of Korea’ (4 January 2010) UN Doc A/HRC/13/13, para 91 and Hisham Badr, ‘Report of the Human Rights Council on its Thirteenth Session’ (8 February 2011) UN Doc A/HRC/13/56, paras 644–45.

58  Amna Nazir, Alice Storey, and Jon Yorke five depending on the verb that is used in each recommendation.124 See Chapter 4 by McMahon and Botwicz for a breakdown of each category. When considering the formulation of recommendations, it is important that recommending states refer to the review criteria in Resolution 5/1, which includes the UN Charter, UDHR, or human rights instruments to which the SuR is party to, in order to ensure recommendations remain specific. However, it is also proposed that the UPR mechanism can go beyond this and promote the work of human rights entities and bodies which uphold the nine core human rights treaties. For example, when considering the issue of child, early and forced marriage (CEFM), UPR recommendations predominantly refer to ‘child marriage’, whereas reference to the UNFPA-UNICEF project on CEFM125 can enhance the quality of recommendations. Other instances of poorly formulated recommendations are when member states attempt to problematise human rights issues to protect domestic state laws. This can be seen when assessing Egypt and Sudan’s recommendations at the UPR regarding the use of the death penalty. Instead of making recommendations challenging retentionist states’ use of the punishment, they went one step further and used the UPR mechanism to encourage other states to maintain the death penalty (emphasis added). Egypt recommended Afghanistan, Viet Nam, Central African Republic, and Chad to ‘continue using its sovereign right to apply the death penalty as a tool of criminal justice in accordance with the proper safeguards specified under international human rights law’.126 It also encouraged China to ‘continue observing its national legal safeguards surrounding the application of death penalty as one of the legitimate tools of criminal justice’.127 All these states under review accepted the recommendations except Chad which did not provide an explanation. It would have proven fruitful for Chad to explain why it did not accept the recommendation which would have allowed for greater discussion on this issue. Egypt’s pro-death penalty stance was further highlighted in its recommendation to the Netherlands, a state that had abolished the death penalty in 1870, to ‘initiate a debate on the death penalty, with a view to reaching responsive

124 Edward R. McMahon, ‘The Universal Periodic Review: A Work in Progress an Evaluation of the First Cycle of the New UPR Mechanism of the United Nations Human Rights Council’ (Friedrich Ebert Stiftung, September 2012) 14–15. 125 See ‘UNFPA-UNICEF Global Programme to End Child Marriage’ available at www.unfpa. org/unfpa-unicef-global-programme-end-child-marriage accessed 15 July 2023. 126 UNHRC, ‘Report of the Working Group on the Universal Periodic Review: Afghanistan’ (4 April 2014) UN Doc A/HRC/26/4, para 136.118; UNHRC, ‘Report of the Working Group on the Universal Periodic Review: Viet Nam’ (2 April 2014) UN Doc A/HRC/26/6, para 143.114. The recommendation to the Central African Republic and Chad is worded slightly differently: ‘Continue exercising its sovereign right of implementing its penal code in conformity with universally agreed human rights standards, including the application of the death penalty.’ 127 UNHRC, ‘Report of the Working Group on the Universal Periodic Review: China’ (4 December 2013) UN Doc A/HRC/25/5, para 186.111.

The Universal Periodic Review as Utopia  59 conclusions consistent with international human rights law’.128 Netherlands did not accept the recommendation affirming its ‘firm opposition to the death penalty, and that its respect for human rights is basic in this position’.129 These examples show Egypt’s attempts to problematise the abolitionist perspective in the UPR as it did not base its recommendations on the review criteria130 but instead focused on state practice to maintain the death penalty or consider its reintroduction contrary to international law.131 Both Egypt and Sudan also made similar recommendations to Malaysia to ‘continue exercising its sovereign right of adopting national legislation and the penal code, including the application of the death penalty’.132 Sudan also recommended Yemen to ‘abide only by internationally agreed principles of international law. In this regard, capital punishment does not fall within such agreed norms, the imposition of capital punishment is the prerogative of individual States’.133 This indicates a misinterpretation of the role of the death penalty in international law which provides for a very restricted application of the punishment. Member states encouraging other states to maintain the death penalty reinforces the attitude that it is not a matter of human rights but rather it is a legitimate criminal sanction which the state, as sovereign, can apply as it wishes. It does not consider the implications of such a recommendation, especially if the country in question has a poor record of human rights, for example, failing to observe fair judicial processes. This risks the death penalty being arbitrarily applied and the right to life ultimately subjugated. The UPR extends beyond mere reaffirmation of human rights standards by requiring states to explicitly accept support or note recommendations. As a result, the SuR is faced with expectations that it will take progressive steps to implementation.134 The subsequent review focuses on the extent to which the previous cycle’s recommendations have been implemented. Implementation is one of the fundamental challenges facing the UPR. The contradictions between what is promised, through acceptance of

128 UNHRC, ‘Report of the Working Group on the Universal Periodic Review: The Netherlands’ (13 May 2008) UN Doc A/HRC/8/31 para 78.2. 129 ibid para 39. 130 UNHRC Res 5/1 (18 June 2007) UN Doc A/HRC/RES/5/1, Annex, para 1. The review criteria are: (a) The Charter of the United Nations; (b) The Universal Declaration of Human Rights; (c) Human rights instruments to which a State is party; (d) Voluntary pledges and commitments made by States. 131 The Human Rights Committee’s General Comment No. 36 ‘bars’ the reintroduction of the death penalty. 132 UNHRC, ‘Report of the Working Group on the Universal Periodic Review: Malaysia’ (3 March 2009) UN Doc A/HRC/11/30, para 104.15. 133 UNHRC, ‘Report of the Working Group on the Universal Periodic Review: Yemen’ (5 June 2009) UN Doc A/HRC/12/13, para 91.53. 134 Walter Kalin, ‘Ritual and Ritualism at the Universal Periodic Review: A Preliminary Appraisal’ in Hilary Charlesworth and Emma Larking (eds), Human Rights and the Universal Periodic Review: Rituals and Ritualism (Cambridge University Press 2014) 37–38.

60  Amna Nazir, Alice Storey, and Jon Yorke recommendations, and what is delivered, through the failure to implement said recommendations, is stark. The presence of such dystopian elements means the utopian objective does not translate into a utopian world. The UPR needs to promote human rights on the ground level and ameliorate violations by, as Alex Conte argues, ‘translating the recommendations and commitments made . . . into measurable improvements’.135 Recommendations therefore need to be SMART136 in order to facilitate implementation. For example, a recommendation to simply, ‘consider restricting the death penalty’ lacks any specificity for application. Rather, this could be replaced with a recommendation to ‘adopt the punishment only for the “most serious crimes” under ICCPR Article 6(2) and present to Parliament a motion for a moratorium within two years’ which is both measurable and achievable.137 Furthermore, Article 6(6) is a time limiting provision which should lead to abolition, as it is designed to neutralise the ability of member states to perpetually claim domestic legitimacy for the continued use of the punishment. In the UPR Project’s stakeholder reports, we have recommended this incremental approach. For example, in South Sudan’s Cycle 3 report we recommended the SuR: (i) Develop, in consultation with civil society and relevant regional bodies, a comprehensive action plan to work towards a moratorium, with a view to abolition, within the next three years; (ii) Amend the 2011 Transitional Constitution of South Sudan to prohibit the death penalty; and (iii) Ratify the International Covenant on Civil and Political Rights and the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty.138 Unfortunately, tracking implementation is not a straightforward task as there is no formal guidance or official mechanism in place. This hinders the ability to engage with the extent to which the SuR has implemented its accepted recommendations. One way to counter this is through the submission of a midterm report which all states are encouraged to provide, on a voluntary basis, to the HRC in relation to the accepted recommendations.139 However, the voluntary nature of this means that, many a times, the SuR will simply not submit.

135 Alex Conte, ‘Reflections and Challenges: Entering into the Second Cycle of the Universal Periodic Review Mechanism’ (2011) 9 New Zealand Yearbook of International Law 189, 201. 136 Specific, Measurable, Achievable, Relevant, Time-bound. 137 See Amna Nazir, ‘The Universal Periodic Review and the Death Penalty: A Case Study of Pakistan’ (2020) 2020 RSIL Law Review 126, 153. 138 UPR Project at BCU, ‘South Sudan Stakeholder Submission: Third Cycle’ available at www.bcu.ac.uk/law/research/centre-for-human-rights/consultancy/upr-project-at-bcu/ upr-project-at-bcu-south-sudan. 139 UNHRC Res 16/21, ‘Review of the Work and Functioning of the Human Rights Council’ (12 April 2011) UN Doc A/HRC/RES/16/21, para 8.

The Universal Periodic Review as Utopia  61 Conclusion: Keeping the Aspirational Imagination Since the creation of the UPR and its inception in 2006, it has become a critical, multilateral system of the UN for facilitating a consensual and encompassing review of the status of human rights across the world. UPR Info inform that within the completed three cycles to date, there have been around 100,000 recommendations, over 70 human rights issues raised, and that as each cycle is completed, we are witnessing an enhanced engagement of recommending states, parliamentarians, national human rights institutions, the judiciary and the legal profession.140 The UPR provides significant opportunities for cooperation and dialogue not just in Geneva, but during each phase of the UPR in the domestic settings. It is therefore a potentially empowering mechanism which is distinct from the other UN entities’ reporting and monitoring. States have made voluntary commitments, which are documented in the UPR materials, and which can be utilised to call on governments to fulfil their promises through national legal protections against human rights abuses. We find hope and visions for a better future through the creation of the UPR, and these utopian ideals live strongly within this UN review process. What is necessary to achieve successful outcomes is the continued education on the UPR, and that each key actor is fully informed about how to use the process. Domestically, the role of National Human Rights Commissions, and the creation and operation of a National Mechanism for Review and Followup are vital. In line with our suggestions throughout this chapter for realising utopia through the UPR, the mechanism must be viewed as constantly evolving, shifting its modalities as the situation requires. In comparison with other UN mechanisms such as the treaty bodies and special procedures, the UPR is still in its relative infancy, and given its success in terms of 100% co-operation from all UN member states, it provides a platform for keeping an aspirational imagination for a global human rights utopia.

140 See Message from Mona M’Bikay, Executive Director of UPR Info, The UPR Beyond Reporting: Transformational Changes on the Ground (June 2022) 4 available at www. upr-info.org/sites/default/files/general-document/2022-07/Beyond%20Reporting-ENWeb.pdf accessed 15 July 2023.

3 What Is the UPR? Thinking About the UPR as a Source of International Law Frederick Cowell

Introduction If you had to define what the Universal Periodic Review (UPR) was on the back of a postcard, what would you say? Since the first UPR cycle in 2008, classifying the nature of what the UPR is has often perplexed policymakers, legal commentators and the academy alike. Many often settle on it being a process of the UN Human Rights Council (HRC) but as to its legal status the answer is often ambiguous. Significantly, at least in a procedural sense, the UPR process has managed to review every single state. This is an achievement as it is the closest any international human rights institution, treaty or process has come to building a universal human rights system. Studies of its impact on the ground have shown a mixed picture, principally because of the difficulties in measuring its impact. That said, it has had some tangible impacts in relation to women’s rights and healthcare, with strings of accepted recommendations resulting in policy changes in the states accepting them.1 Recommendations from the UPR on LGBTQ+ rights and children’s rights have worked in tandem with other human rights processes to make a positive difference in terms of rights protection.2 The UPR does overlap with many other sources of international law and international legal processes. For example, it has helped treaty bodies in respect of reservations, encouraged the implementation of provisions of treaties, led to increased human rights treaty ratification and can also

* An earlier version of this chapter was presented as a paper at the European Society of International Law Annual Conference, University of Stockholm 10 September 2021. 1 Kate Gilmore and others, ‘The Universal Periodic Review: A Platform for Dialogue, Accountability, and Change on Sexual and Reproductive Health and Rights’ (2015) 17 Health & Human Rights Journal 167; Sarah Tufano, ‘The Holy Trinity of the United Nations Universal Periodic Review: How to Make an Effective Recommendation Regarding Women’s Rights’ (2018) 21 University of Pennsylvania Journal of Law & Social Change 187. 2 Frederick Cowell and Angelina Milon, ‘Decriminalisation of Sexual Orientation through the Universal Periodic Review’ (2012) 12 Human Rights Law Review 341; See also the studies presented in James Gomez and Robin Ramcharan (eds), The Universal Periodic Review of Southeast Asia: Civil Society Perspectives (Palgrave Macmillan 2018). DOI: 10.4324/9781003415992-5

What Is the UPR?   63 be used as a source for identifying customary international law.3 But, this shows how the process of the UPR interacts with other acknowledged sources and international legal doctrines.4 The question this chapter poses is how the UPR process should be understood, and whether indeed it can be understood, as a law-making process. Any theory of law’s sources, Pierre D’Argent argues, is a means of identifying ‘which words count’ as law.5 Article 38 of the Statute of International Court of Justice (ICJ) is usually taken as the starting point for most accounts of the sources of international law. But, as some historians have noted during the drafting of the statute for the ICJ’s predecessor, the Permanent Court of International Justice, the sources doctrine was intended to limit the scope of what the court could decide and came to be used as a guide for determining international law by reference to its source.6 The sources recognised in Article 38 included ‘international conventions . . . establishing rules expressly recognized by the contesting states’, customary international law, general principles of law ‘recognized by civilized nations’ and judicial decisions.7 As dated as some of its language now sounds, Article 38 of the ICJ statute gave international lawyers and institutions a vocabulary to describe what the legal obligations on a state are, or what they ought to be.8 As shown below there have been significant departures from this formalist way of thinking about the question of sources, focusing on the communal aspect and collective actions of states, as well as the role of institutional structures in shaping and altering state behaviour. One crucial feature of identifying law-making – the provision of a rule of recognition between law and non-law, in the sense described by HLA Hart, is beyond the scope of this chapter on simple grounds of space.9 Instead, what will be

3 Even after the first year an increase in ratifications was noted Sen Universal Periodic Review of Human Rights: Towards Best Practice (Commonwealth Secretariat 2009) 35–36; See also Cowell, ‘Reservations to Human Rights Treaties in Recommendations From the Universal Periodic Review: An Emerging Practice?’ (2021) 25 The International Journal of Human Rights 274; Valentina Carraro, ‘Promoting Compliance with Human Rights: The Performance of the United Nations’ Universal Periodic Review and Treaty Bodies’ (2019) 63 International Studies Quarterly 1079. 4 The integration of the UPR into existing sources of law is described in detail earlier in this volume – see Amna Nazir, Alice Storey and Jon Yorke, ‘The Universal Periodic Review as Utopia’ in Damian Etone, Amna Nazir and Alice Storey (eds), Human Rights and the UN Universal Periodic Review Mechanism: A Research Companion (Routledge 2023). 5 Pierre d’Argent, ‘Sources and the Legality and Validity of International Law: What Makes Law “International”?’ in Samantha Besson and Jean d’Aspermont (eds), Handbook on The Sources of International Law (Oxford University Press 2017) 541. 6 Andreas Zimmermann, Karin Oellers-Frahm and Christian J Tams, The Statute of the International Court of Justice: A Commentary (Oxford University Press 2012) 738–45. 7 United Nations, Statute of the International Court of Justice (18 April 1946) 33 UNTS 993, Article 38. 8 Jean d’Aspermont, Epistemic Forces of International Law (Edward Elgar 2015) 10–15. 9 For a summary of point on HLA Hart’s rule of recognition and its application to international law see Dennis Patterson ‘Transnational Lawmaking’ in Catherine Brölmann and

64  Frederick Cowell demonstrated is that the institutional structure of the UPR creates a systemic way of effecting state behaviour and generating a sense of commitment. From this it is possible to conclude that the UPR can be understood as a law-making process. Doing so is less a case of reimagining the existing rules, debates, models and theories of law-making and law identification in international law, but rather a case of realising that the nature of the UPR corresponds more closely to them than might be first thought. There has been some criticism of the UPR to actually make meaningful change and for its failure to protect human rights, with one group of NGOs from Indonesia saying it should be rechristened the ‘Universal Periodic Rhetoric’.10 This does not invalidate an investigation into the law-making capacity of the UPR  – international human rights law has a wide range of critics and problems with implementation. The institutions designed to protect and promote human rights often struggle to be able to change situations in countries where human rights abuses are occurring. International human rights law and international human rights bodies are still structured in a way that tries to deliver human rights change by effecting state behaviour and this can happen in diffuse ways.11 Equally the non-implementation of a particular right does not mean that there is not a legal obligation, or a sense expectation that a particular right ought to be implemented. It is therefore important to try to understand how the UPR attempts to engender that kind of change in state behaviour and why that resembles a process which, by analogy, would be described as law-making. It is first important to look at the UPR’s origins and how it was meant to influence state behaviour. The second part of this chapter then sets out a framework for understanding the UPR’s structure and why it can be viewed as a law-making process. How the UPR Was Shaped In April 2005, the then-UN Secretary General Kofi Annan used an address to the UN Commission on Human Rights to damn its very existence. The Commission’s ability to perform its task of protecting and promoting human rights had been, Annan argued, ‘undermined by the politicization of its sessions and the selectivity of its work’.12 This had long been a subject of criticism of the Yannick Radi (eds), Research Handbook on the Theory and Practice of International Lawmaking (Edward Elgar 2016) 56. 10 Theodor Rathgeber, ‘The HRC Universal Periodic Review: A Preliminary Assessment’ (6 July 2008) FES Briefing Paper available at https://library.fes.de/pdf-files/bueros/ genf/05479.pdf accessed 15 July 2023. 11 For an example of this see Beth Simmons ‘From Ratification to Compliance: Quantitative Evidence of the Spiral Model’ in Thomas Risse, Stephen C Ropp and Kathryn Sikkink (eds), The Persistent Power of Human Rights: From Commitment to Compliance (Cambridge University Press 2013). 12 Kofi Annan, UN Secretary-General, ‘Major Proposals to Reform UN Human Rights Machinery’ (7 April 2005) available at https://press.un.org/en/2005/sgsm9808.doc.htm accessed 15 July 2023.

What Is the UPR?   65 Commission from the 1970s onwards, but by the 1990s there was an increasing problem of states coordinating with one another to block certain issues from coming to the Commission’s attention.13 Tiananmen Square was never discussed at Commission, Cuba and Israel were focused on intensely to the exclusion of many other human rights situations. When Libya and Sudan were elected from the Africa block at the General Assembly to the Commission in the early 2000s, it seemed to fulfil the warning in Kenneth Roth’s jeremiad that the Commission was like ‘a police force run in large part by suspected murderers and rapists who are determined to stymie investigation of their crimes’.14 By 2005 when Annan was speaking these developments had led to a position where it was relatively uncontroversial to say that the Commission’s ‘declining credibility has cast a shadow on the reputation of the United Nations system as a whole’.15 The remedy for this, as Annan saw it, was for wholesale institutional reform and for the creation of an institution with the ‘status, authority and capability commensurate with the importance of its work’.16 This was the political context within which the UPR was formed. As Philip Alston noted the reference to ‘peer review’ in Annan’s speech, in the context of the new institution and its updated powers, was ambiguous but it was clear that it was a means of compromising between groups of states who were frustrated at the inability of the Commission to actively condemn other states for human rights violations and those states who felt that the Commission was ‘unduly adversarial in its debates on violations’.17 Although peer review was used in a number of other UN bodies there was no fixed meaning or definition as to what peer review would involve, which was part of a wider problem surrounding the Commission’s replacement about how a new body was supposed to work and avoid the pitfalls of its predecessor.18 The doctrine of sources in international law is often a way of describing forms of legal authority in terms of static subjects which can neglect some of the more dynamic participatory approaches to international law making.19

13 For a general account of the Commission see Howard Tolley, United Nations Commission on Human Rights (Westview Press 1987); Specifically on the 1970s see Rupert Emerson, ‘The Fate of Human Rights in the Third World’ (1975) 27 World Politics 201; On double standards in the late 1990s, see Michael J Dennis, ‘The Fifty Sixth Session of the UN Human Rights Council’ (2001) 95 American Journal of International Law 213. 14 Kenneth Roth, ‘Despots Pretending to Spot and Shame Despots’ International Herald Tribune (17 April 2001) available at www.nytimes.com/2001/04/17/opinion/IHT-despotspretending-to-spot-and-shame-despots.html accessed 12 December 2022. 15 Annan (n 12). 16 ibid. 17 Philip Alston, ‘Reconceiving the UN Human Rights Regime: Challenges Confronting the New UN Human Rights Council’ (2006) 7 Melbourne Journal of International Law 185. 18 Nico Schrijver, ‘The UN Human Rights Council: A New “Society of the Committed” or Just Old Wine in New Bottles?’ (2007) 20 Leiden Journal of International Law 809, 814. 19 The history of the move from a subjecthood entailing lawmaking capacity, to independent institutional frameworks making law is detailed succinctly by d’Aspremont, ‘Subjects and Actors in International Law-Making: The Paradigmatic Divides in the Cognition of International Norm-Generating Processes’ in Brölmann and Radi (eds) (n 9) 32, 41–48.

66  Frederick Cowell Rosalyn Higgins, aiming to formulate a more dynamic community orientated conception of law-making, describes international law as ‘the whole process of competent persons making authoritative decisions in response to claims which various parties are pressing upon them in respect of various views and interests’.20 D’Aspremont and others’ description of more community orientated schools of thought about international law-making, moved on from conventional debates about sources, in particular those which centred around Article 38 of the ICJ Statute which d’Aspremont described as a ‘closed list enumerating the abstract normative categories that comprise the body of international law’.21 The idea of there being a sense of closure in the doctrine of sources, designed to limit what can be recognised as legal, has framed numerous doctrinal debates, such as the debate over the significance and distinction between hard and soft law.22 The difficulty is to find a way of recognising, or finding some criteria of recognition for when norms impact on state behaviour in a way that resembles the discharge of legal obligations. Exclusionary criteria of what is and is not legal can make the whole idea of law-making a form of taxonomic exercise, detached from the process of actually understanding how and why states act. When Annan said in 2005 that during the ‘past 60 years, our focus has been on articulating, codifying and enshrining rights’ but that now the ‘era of declaration’ should give way ‘to an era of implementation’ he was talking about the shaping of state behaviour.23 To implement rights has historically meant both the direct and indirect alteration of societies and social structures. In more modern times the legal rights that are contained in instruments have required states to alter their behaviour in a range of different ways, sometimes this was the result of formal obligation, other times in relation to secondary norms, such as the interpretation of rights by a treaty body.24 Because of the necessity of trying to give effect to human rights, in order for them to be implemented and 20 Rosalyn Higgins, ‘Policy Considerations and the International Judicial Process’ (1968) 17 International and Comparative Law Quarterly 58, 59. 21 d’Aspremont (n 19); Mónica García-Salmones Rovira, ‘Sources in the Anti-Formalist Tradition: A Prelude to Institutional Discourses in International Law’ in Samantha Besson and Jean d’Aspremont (eds), The Oxford Handbook on The Sources of International Law (Oxford University Press 2017); On the point of Article 38 and its role in creating closed categories of international law see Thomas Skouteris, ‘The Force of a Doctrine: Art 38 of the PCIJ Statute and the Sources of International Law’ in Fleur Johns, Richard Joyce and Sundhya Pahuja (eds), Events: The Force of International Law (Routledge 2011) 69, 71. 22 Malgosia Fitzmaurice, ‘The History of Article 38 of the Statute of the International Court of Justice: The Journey from the Past to the Present’ in Besson and d’Aspremont (eds), (n 5) 179, 196–98. 23 Annan (n 12). 24 On the historical dimension of how human rights changed society see Talal Asad, ‘What Do Human Rights Do? An Anthropological Enquiry’ (2000) 4 Theory and Event available at https://muse.jhu.edu/article/32601 accessed 15 July 2017; On the issue of the persuasion theory in relation to human rights treaties and human rights treaty bodies see Michael O’Flaherty, ‘The Concluding Observations of United Nations Human Rights Treaty Bodies’

What Is the UPR?   67 actually protect the rights contained in a human rights instrument, a range of scholars have described the need for ‘politics of choices’ over the processes that give effect to rights in individual states.25 It is in this context that the UPR was created and the UN General Assembly Resolution setting up the HRC first describes it as a universal periodic review, based on objective and reliable information, of the fulfillment by each State of its human rights obligations’.26 The emphasis on both of those words is mine, but fulfilment is synonymous with the implementation of legal obligations, it is a discussion on the rules of how human rights come into being. It is hard to read this provision, in the context of the Annan speech and the wider report on UN human rights mechanisms In Larger Freedom, and not conclude that the process was intended as an exercise in shaping state behaviour. But that was far from the consensus among states at the time. As Felice Gaer noted in 2006, some of the states running for membership on the new HRC ‘expressed interest in peer review that can enhance scrutiny, others clearly want it to be a way to avoid scrutiny’ and there were remarkably divergent views on whether the review process should have a direct outcome.27 Another detailed account of the UPR’s formation in the mid-2000s also noted this, observing that states fell broadly into three camps; those who wanted a procedure that was effective in changing state behaviour, those who wanted to avoid any scrutiny of their human rights records and those who felt that there had been a failure of the Commission but were concerned about achieving procedural fairness in the new system.28 Comparisons at the time of the UPR’s creation were drawn with the of the Organization for Economic Co-operation and Development (OECD) and other bodies with peer review functions, but these weren’t organisations often attributed with having international law-making powers or the capacity to examine the domestic implementation of international obligations across a wide spectrum of instruments.29 The final structrure of the review mechanism maintianed a version of state consent. General Assembly Resolution 60/251 was clear that the review process should not duplicate the work of treaty bodies, in part so as not to overlap with bodies with a legal status based on state consent. Recommendations

(2006) 6 Human Rights Law Review 27; Kerstin Mechlem, ‘Treaty Bodies and the Interpretation of Human Rights’ (2009) 42 Vanderbilt Journal of Transnational Law 905. 25 James D Ingram, ‘What Is a “Right to Have Rights”? Three Images of the Politics of Human Rights’ (2008) 102 American Political Science Review 401. 26 Human Rights Council, GA Res 60/251, UN GAOR, 60th sess, 72nd plen mtg, Agenda Items 46 and 120, UN Doc A/Res/60/251 (3rd April 2006); [Emphasis added]. 27 Felice Gaer, ‘Scrutinizing Countries: The Challenge of Universal Review’ (2006) 13 Human Rights Brief 9, 10. 28 Francoise Hampson, ‘Overview of the Reform of the UN Human Rights Machinery’ (2007) 7 Human Rights Law Review 7, 16. 29 Edward R. McMahon and Marta Ascherio, ‘A Step Ahead in Promoting Human Rights? The Universal Periodic Review of the UN Human Rights Council’ (2012) 18 Global Governance 231.

68  Frederick Cowell offered in the review are voluntarily assumed or ‘noted’ by the state under review (SuR) and pledges about future behaviour are all voluntary. Accounts of the UPR’s creation make it clear that this was a reflection of the politics described immediately above and the imperative was at first to encourage participation in the process in as universal a way as possible. However, it is also representative of a broader set of concerns in international human rights law that has driven a more careful reconsideration of the sources of international law. A classically formalist account of the sources doctrine, with its focus on ‘consent and sovereignty’ can see consent as a form of veto power against human rights commitments.30 As Louis Henkin famously noted in his critique of ‘the S word’, the ‘banner of sovereignty still waves ominously over all human rights’ turning what were supposed to be universal values into something that states apply if they ‘wish to, when they wish to, to the extent they wish’.31 Yet, when arguments about reconceiving or rethinking the sources of international human rights law have been advanced, there has been a push back that this is a form of norm entrepreneurship which resembles law (lex simulata) and is in reality a set of political claims, an argument which is a particularly common in debates relating to customary international human rights law.32 The UPR structure that came into operation in 2008 was one that was the product of compromise, in the interests of universality of participation. Crucially however, it retained the core feature of producing an outcome, even if that was simply representative of a commitment on the SuR to be scrutinised on their voluntary declarations and accepted recommendations at a later date.33 Critics of the UPR were keen to emphasise that this would not actually protect human rights as it could not hear an individual case or make an order against a state.34 There was also a series of additional concerns about the way that peer review was incredibly resource intensive, might struggle to deliver the results it was promising and was reliant on a form of cooperation from state parties which would need a high level of institutional trust.35 To an extent, this overview can be linked to historical institutionalist understandings

30 Wouter Werner, ‘State Consent as Foundational Myth’ in Brölmann and Radi (n 19). 31 Louis Henkin, ‘That “S” Word: Sovereignty, and Globalization, and Human Rights, Et Cetera Et Cetera’ (1999) 68 Fordham Law Review 1, 5. 32 Tesón, ‘Fake Custom’ in Brian Lepard (ed), Reexamining Customary International Law (Cambridge University Press 2019) 86, 88–92. See more generally Jan Klabbers, ‘The Redundancy of Soft Law’ (1996) 65 Nordic Journal of International Law 167; M Olivier, ‘The Relevance of “Soft Law” as a Source of International Human Rights’ (2002) 35 The Comparative and International Law Journal of Southern Africa 289. 33 Elvira Dominguez-Redondo, ‘The Universal Periodic Review – Is There Life Beyond Naming and Shaming in Human Rights Implementation?’ (2012) 4 New Zealand Law Review 673. 34 Manfred Nowak, ‘The Need for a World Court of Human Rights’ (2007) 7 Human Rights Law Review 251. 35 Gaer (n 27); See also Gaer, ‘A Voice Not an Echo: Universal Periodic Review and the UN Treaty Body System’ (2007) 7 Human Rights Law Review 109.

What Is the UPR?   69 of international institutions, which emphasises the circumstances of an individual institution’s formation as a guide to its future evolution.36 The utility of this methodological assumption is that it can be helpful in understanding what those shaping a process thought it would be and how they envisaged it acting, which is important for understanding some of the issues of law identification discussed in this section. There was a high degree of contestation about what the review was and what its scope should be. However, there was also a relatively clear indication about the existence of an outcome report at the end of the review process and a commitment to a cyclical review process. A Framework for Understanding the UPR as a Law-making Process An international law-making body, based on the synthesis above, is one with its own independent processes which aims to shape state behaviour according to a system of structured rules. As Rameses Wessel points out, there are an increasing number of international bodies which have moved away from the classic formalist understanding of international institutions, as being bodies which serve as facilitation forums for state cooperation, or perform a set of specific delegated functions, defined by a treaty.37 There is, as detailed below, a rich theoretical literature on the way state behaviour alters through socialisation and one directly connected to human rights change, although there is also some scepticism about how this relates to the formation of obligations on states. There is a general understanding that participation in international organisations can help manifest state practice (or opinio juris to use the terminology of customary international law) which is often the theoretical template advanced in relation to the UN General Assembly.38 This theory has already been extended to UPR resolutions, which can, in certain circumstances, be used to identify customary international human rights law.39 In terms of the UPR itself acting as a law-making institution, outside of providing a source for identifying customary international human rights norms, it is important to remember that the value of the UPR in terms of the enforcement of human rights comes from its institutional framework and repetitiveness. The interactive dialogue, which is part of the UPR process, both refines 36 For an explanation of this theoretical template see Orfeo Fioretos, ‘Institutions and Time in International Relations’ in Fioretos (ed), International Politics and Institutions in Time (Oxford University Press 2017) 12. 37 Ramses A Wessel, ‘Institutional Lawmaking: The Emergence of a Global Normative Web’ in Brölmann and Radi (n 9). 38 ibid 180. 39 Frederick Cowell, ‘Understanding the Legal Status of Universal Periodic Review Recommendations’ (2018) 7 Cambridge International Law Journal 164; On customary international human rights law see – Lepard, ‘Toward a New Theory of Customary International Human Rights Law’ in Brian Lepard (ed), Reexamining Customary International Law (Cambridge University Press 2019) 233.

70  Frederick Cowell the existing language of human rights and encourages states to adopt human rights commitments. This is then reinforced by the repetitiveness of the UPR cycles and given legitimacy by the structure of the HRC and the UPR as a whole.40 For ease of understanding, the rest of this chapter proceeds by looking in turn at three features of the UPR – its institutionalised dialogue, structural repetition through review cycles and equality of participation – as a window to look into the nature of institutional law-making at the international level. Dialogue

Dialogue is structured in the UPR process – there is a set time limit for the state presentation and interactive dialogue between the state under review and the HRC, as discussed in Chapter 1. The outcome report is a product of that deliberation and the HRC’s website explains it ‘provides a summary of the actual discussion’ as well as ‘recommendations made by States to the country under review, as well as the responses by the reviewed State’.41 It is a synthesis both of commitments and the dialogue that produced those commitments. The outcome report is also the reference point for mid-term reviews and for future UPR cycles as evidence of commitments undertaken by the SuR. But, unlike a resolution from an international organisation, the outcome report contains the reasoning and dialogue between states. Sometimes a judgment from a court or a tribunal acts as a record of dialogue that has taken place between the state and communities in their domestic jurisdiction, or between different states about the content of human rights norms. General Comments from Treaty Bodies, even those not necessarily focusing on a single state, can help develop international human rights law through the interpretation and clarification of legal obligations.42 The Outcome Report itself is not a judgment, as in it is not a finding or interpretation of legal obligations, but represents what other states and the SuR say human rights ought to be. Equally it is not clear that an outcome report and its attendant recommendations would classify as a ‘soft law’ instrument. Outcome reports don’t really fit into current thinking about the categorisation of soft law as they relate to a specific state, 40 For an example of change over UPR cycles see Fiona McGaughey and others, ‘The Significance of the UPR in the Absence of a Regional Human Rights System: The Case of the Asia Pacific’ in chapter 9; In terms of how international human rights law enforces human rights more generally see Harold Hongju Koh, ‘How Is International Human Rights Law Enforced’ (1998) 74 Indiana Law Journal 1397. 41 United Nations Human Rights Council, ‘Basic Facts about the UPR’ available at www. ohchr.org/en/hrbodies/upr/pages/basicfacts.aspx accessed 15 July 2023. 42 Max Lesch and Nina Reiners, ‘Informal Human Rights Law-Making: How Treaty Bodies Use “General Comments” to Develop International Law’ (2023) 12 Global Constitutionalism 1; Michael O’Flaherty, ‘Freedom of Expression: Article 19 of the International Covenant on Civil and Political Rights and the Human Rights Committee’s General Comment No 34’ (2012) 12 Human Rights Law Review 627.

What Is the UPR?   71 they are not a statement of general principle and they cover a range of different matters.43 Instead the significance of the Outcome Report is that it is a record and a conclusion of dialogue about what human rights standards ought to be. Its value exists within the institutional framework of the UPR. Mikhail Mikhailovich Bakhtin gave his name to a philosophical school of thought known as Bakhtinian dialogism which, very broadly speaking maintained that interaction and dialogue helped define concepts and give meaning to notions that would otherwise be relative in nature.44 In the Dialogic Imagination Bakhtin outlined how different genres of language created ‘intentional dimensions’ for words giving them ‘specific directions, filled with specific content, they are made concrete, particular and are permeated with concrete value judgments’.45 The idea of language being structured to assume value is a core feature of Nicholas Onuf’s work on international law. Onuf is unashamedly constructivist in his thinking, describing his belief in the idea that subjects of law (in this case states) ‘continuously constitute each other through the medium of rules, and that rules depend on the performative power of language’.46 Rules, Onuf argues, should not be seen just as the products of a positivist system, but as speech acts which become authoritative.47 When making a statement about future action or commitment, an individual is ‘fitting words to the world’ and projecting ‘a desired state of affairs and bring it to bear on oneself’.48 Rules are social arrangements which become authoritative through institutionalisation and others, most notably Robert Keohane et al., have advanced a similar argument in relation to the capacity of institutions to develop a set of institutional rules and norms which then become legalised.49 This attempt to make a uniform taxonomy of the legal process and rule formation has been criticised, both for its lack of clarity and for its lack of concern about the role of hierarchy in speech acts and the content of the norms themselves.50 Yet despite these criticisms, a major contribution of Onuf’s thought

43 For an overview of the relationship between soft and hard law see Alan Boyle, ‘Some Reflections on the Relationship of Treaties and Soft Law’ (1999) 48 ICLQ 901; Chaloka Beyaniz, ‘The Politics of International Law: Transformation of the Guiding Principles on Internal Displacement from Soft Law into Hard Law’ (9–12 April 2008) 102 Proceedings of the Annual Meeting of the American Society of International Law 194. 44 Michael Holquist, Dialogism: Bakhtin and His World (2nd edn, Routledge 2002) 22. 45 Mikhail Mikhaĭlovich Bakhtin, The Dialogic Imagination: Four Essays. Vol. 1. (University of Texas Press 2010). 46 Nicholas Onuf, ‘The Constitution of International Society’ (1994) 5 European Journal of International Law 1, 4. 47 Nicholas Onuf, ‘Do Rules Say What They Do – from Ordinary Language to International Law’ (1985) 26 Harvard Journal of International Law 385. 48 ibid 402. 49 Kenneth Abbott and others, ‘The Concept of Legalization’ (2000) 54 International Organization 401. 50 See Adriana Sinclair, International Relations Theory and International Law: A Critical Approach (Cambridge University Press 2010) 18.

72  Frederick Cowell was developing an understanding of how the social lives of states, the meetings, institutions and forums to which states belong, create ongoing patterns of dialogue which shape their behaviour.51 Constructivist theories of international law point towards the socialisation of states and the shaping of identities in institutions, which then subsequently underpins obligations.52 A core tenet of the constructivist theory of international law is that to the extent that structures shape behaviour of states, normative and ideational structures are as important as material or coercive structures.53 Socialisation of states within these structures is a central part of the constructivist world view of how norms exist and shape state behaviour. Alexander Wendt, a leading theorist of constructivism, argues that state identities are ‘inherently relational’ and relationships between states end up stabilising their identities.54 Dialogue is an implicit part of this process as it is how states interact with institutional structures. The UPR as an institution is constructed both to acknowledge differing views about human rights between states, but also to set a rigid framework for review of a state’s human rights record and create a cycle for reviewing human rights at the international level. This is a structure within which the social identities of states can be shaped and norms about human rights developed. There are a number of different criticisms of constructivist theory, which are cautious about the link between socialisation and legal norms and the approach of treating states as being shaped by their identities, and the above should not be read as an uncritical endorsement of this theoretical template.55 Yet, it is one which explains the function of how the UPR can shape state behaviour. Taken together, dialogic theory and the constructivist insight into speech acts being determinative for the shaping of rules, make it possible to see how the UPR is designed to perform a rule making function through conducting reviews of states. This can be seen in two ways, firstly the process of encouraging dialogue is a way of persuading states to commit to types of behaviour in relation to the protection of human rights. When the UPR was being

51 Nicholas Onuf, ‘The Politics of Constructivism’ in Karin Fierke and Knud Erik Jorgensen (eds), Constructing International Relations: The Next Generation (ME Sharpe Publishing 2001) 236, 238. 52 For a summary see Benedict Kingsbury, ‘The Concept of Compliance as a Function of Competing Conceptions of International Law’ (1997) 19 Michigan Journal of International Law 345; Elizabeth Stubbins Bates, ‘Sophisticated Constructivism in Human Rights Compliance Theory’ (2014) 25 European Journal of International Law 1169. 53 Christian Reus-Smit, ‘The Politics of International Law’ in Reus-Smit (ed), The Politics of International Law (Cambridge University Press 2004) 21. 54 Alexander Wendt, ‘Anarchy Is What States Make of It: The Social Construction of Power Politics’ (1992) 46 International Organisation 391, 398. 55 Bill Bowring, ‘What Is Realism in International Law and Human Rights?’ in Jonathon Joseph and Colin Wright (eds), Scientific Realism and International Relations (Palgrave Macmillan 2010) 101; Martti Koskenniemi ‘General Principles: Reflexions on Constructivist Thinking in International Law’ (1985) 18 Oikeustiede-Jurisprudentia 120.

What Is the UPR?   73 developed in the mid-2000s, Alston set out in a report to the General Assembly how the principle of using an ‘objective and constructive dialogue’ had the potential to be an ‘important and effective means by which to promote respect for human rights’.56 The role of dialogue and the promotion of a sense of agreement from states about what human rights standards are and what they should be doing to encourage the realisation human rights was highlighted by academics studying the first UPR cycle (2008–2011).57 Dialogue during the UPR process was not necessarily constructive and by the end of the first cycle it was relatively clear that an array of strategies were emerging for states seeking to defend themselves or avoid substantive discussion on their human rights records.58 The review process and the equality between states it engendered did however encourage a commitment from states to the process and to, at least in abstract, value dialogue at the UPR.59 Karolina Milewicz and Robert E. Goodin’s study of the UPR’s deliberative capacity identifies four key general features of effective deliberation; inclusiveness, authenticity, public space and discursive discipline.60 The final feature, discursive discipline, is defined by Milewicz and Goodin as being a ‘mechanism[s] to ensure that participants engage in non-coercive . . . communicative engagement’ which in turn shapes an empowered space where ‘decisions are made that may be formally binding or have practical effects in more informal ways’.61 Secondly, dialogue can help with the process of defining legal norms and, in turn, shape a state’s expectations in international human rights law. Dialogue between national courts and international courts in judgments is a common feature for shaping and defining human rights obligations and the use of international treaties in domestic litigation can in certain areas help cement rights protection, for example, the protection of rights under the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW).62 The

56 See Philip Alston, ‘Reconceiving the UN Human Rights Regime: Challenges Confronting the New UN Human Rights Council’ (2006) 7 Melbourne Journal of International Law 185. 57 Elvira Domínguez-Redondo, ‘The Universal Periodic Review of the UN Human Rights Council: An Assessment of the First Session’ (2008) 7 Chinese Journal of International Law 721; Rhona Smith, ‘“To see Themselves as Others see Them”: The Five Permanent Members of the Security Council and the Human Rights Council’s Universal Periodic Review’ (2013) 35 Human Rights Quarterly 1. 58 Jarvis Matiya, ‘Repositioning the International Human Rights Protection System: The UN Human Rights Council’ (2010) 36 Commonwealth Law Bulletin 313. 59 For general comments on the equality of states in the review process see Smith (n 57); Alex Conte, ‘Reflections and Challenges: Entering into the Second Cycle of the Universal Periodic Review Mechanism’ (2011) 9 The New Zealand Yearbook of International Law 187. 60 Karolina Milewicz and Robert E Goodin, ‘Deliberative Capacity Building through International Organizations: The Case of the Universal Periodic Review of Human Rights’ (2018) 48 British Journal of Political Science 513, 520–21. 61 ibid. 62 Christopher McCrudden, ‘Why Do National Court Judges Refer to Human Rights Treaties? A Comparative International Law Analysis of CEDAW’ (2015) 109 AJIL 534.

74  Frederick Cowell use of the language of human rights treaties to structure interactive dialogue around a state’s human rights commitments can encourage states to try to find a process for giving those norms a deeper cultural legitimacy and more control in how they debate those commitments and this process has been observed through the periodic review processes in the CEDAW committee.63 On the flip side there is the potential, as Gyatari Patel notes, for the UPR to provide a platform which normalises highly regressive interpretations of women’s rights, by giving equal weight to all recommendations and comments, including those which praise restrictive interpretations of rights.64 Where both arguments intersect is in the conclusion that dialogue between the SuR and the states conducting reviews shapes and develops legal norms. An interesting example of this would be the age of consent for marriage; there have been some recommendations on standardising the age of consent for marriage at 18 this is a commitment that is outside the scope of some human rights treaties nor would it be considered a customary norm but attempts to standardise this in the context of a right to marry have occurred in the interactive dialogue.65 Recognising the status of voluntary commitments or accepted recommendations in the Outcome Report as legal commitments acknowledges the conclusion of the deliberation and dialogue on the nature of the right in question. If the majority of states have agreed on the age of 18 in their outcome reports, then that age could be said to be a recognition of the scope of the right. This is important given that 99 per cent of the world’s states are party to CEDAW and the Convention on the Rights of the Child (CRC) both of which contain obligations about a minimum age of marriage. The agreement, through dialogue, on the meaning of those obligations can be viewed in different ways, for example it can be viewed as an interpretation of a right. It also is a secondary rule which gives effect to the underlying right and the clarification of that secondary rule is an act of law-making, in that it is standard setting. Willingness and consent are not synonymous with one another and, as d’Aspermont argues, the theory of sources in twentieth century legal scholarship was heavily defined by voluntarist ideas, for whom state consent was both the means of identifying the law and explaining its legitimacy.66 In the context of the UPR it is better to understand willingness as a commitment to the UPR’s social practice. This is explained by Dominguez-Redondo, with reference to

63 On this general point see Sally Engle Merry, ‘Constructing a Global Law – Violence against Women and the Human Rights System’ (2003) 28 Law and Social Inquiry 941; Cosette Creamer and Beth A Simmons, ‘The Dynamic Impact of Periodic Review on Women’s Rights’ (2018) 81 Law & Contemporary Problems 31. 64 Gayatri Patel, Women and International Human Rights Law: Universal Periodic Review in Practice (Routledge 2019). 65 Cowell (n 39). 66 Jean d’Aspremont, ‘Towards a New Theory of Sources’ in Anne Orford and Florian Hoffman (eds), The Oxford Handbook of the Theory of International Law (Oxford University Press 2016) 549.

What Is the UPR?   75 recommendations, when she finds that where a recommendation is noted it does not mean that the state in question outright rejects the recommendation based on its content but rather that the SuR does not wish to be scrutinised by the UPR in a subsequent review cycle.67 Taking d’Aspermont’s attempt to construct a theory of sources which roots the identification and recognition of law in social practice it is possible to argue that the UPR – or more precisely the outcome of a review – represents a specific form of social practice.68 A UPR outcome report is the result both of deliberation about the meaning of rights and a record of the scope and willingness of the SuR to change its human rights practice. True there is no express provision relating to obligation in outcome reports but, as Constance De La Vega and Tamara Lewis argue, it is wrong to ‘measure the UPR against the standards for hard law organizations . . . such as courts’ instead it is important to ‘examine the UPR’s ability to create an environment of mutual trust where ideas can be created, shared, openly discussed, criticised and elaborated’.69 This is important for reaching an outcome which is an agreed reflection of the interaction between the SuR and the states conducting the review on what that state’s human rights commitments ought to be, echoing Lepard’s terminology described above.70 Conceiving the outcome report as the end product of a process of institutionalised deliberation is important for appreciating how the outcome report has a relevance as a legal source. It is an authoritative statement from a state about what the law ought to be and how human rights ought to be protected. Structural Repetition

Structural repetition describes how an institutional or legal process can structure the repeating of an action or behaviour on a state’s part leading to behaviour formation or change. Juatta Brunnée and Stephen Toope’s theory of how repetition of interactions by a state in an institutional setting can build a ‘practice of legality’ by virtue of building a sense of fidelity between that state and institutional process, offers a sketch of how organisational processes can over time become a form of obligation.71 Although there has been criticism that the theory advanced by Brunnée and Toope lacked the empirical foundation to demonstrate the constructivist theory of international obligation on which it was based, it offered a structural sketch of how institutional

67 Dominguez-Redondo (n 33) 673. 68 d’Aspremont (n 66). 69 Constance De La Vega and Tamara Lewis, ‘Peer Review in the Mix: How the UPR Transforms Human Rights Discourse’ in M Cherif Bassiouni and William A Schabas (eds), New Challenges for the UN Human Rights Machinery. What Future for the UN Treaty Body System and the Human Rights Council Procedures? (Cambridge University Press 2011) 353, 367. 70 Lepard (n 39). 71 Juatta Brunnée and Stephen Toope, Legitimacy and Legality: An Interactional Account (Cambridge University Press 2010) 91–92.

76  Frederick Cowell processes themselves can over time persuade states.72 This idea is explored in Ingo Venzke’s theory that what sustains a form of institutional persuasion, and the normative power it is expected to have on state parties, is a form of dialogue or discourse which is structured by the institution engaged in the process or act of persuasion.73 Persuasion theory, or the socialisation of states, has been widely discussed in other literature but it is the form of repetitive performance, as structured by international organisations, which is at issue here.74 A crucial part of this is that institutional fidelity, or institutional loyalty, from states to the processes or institution needs to be established, in part by repetition (but also through appeals to equality as discussed below) as precursor to persuasion about norm formation. This addresses an element of the critique of constructivism that the persuasion element of it lacks formal consent and legitimacy.75 It is only by the institution proving itself legitimate that persuasion becomes effective and repetition and regularity is, along with the equality of states, part of that process of proving institutional legitimacy. Repetition can be seen both in the regularity of the cycles and in the way that certain commitments can be emphasised and re-emphasised. HRC Resolution 5/1 specifically envisages a repetitive process in Article 34 when it says that ‘subsequent review should focus, inter alia, on the implementation of the preceding outcome’.76 In 2011 towards the end of the first review cycle the then-High Commissioner for Human Rights Navi Pillay issued a statement encouraging states in the subsequent review to refer back to recommendations and pledges from the previous cycle. This followed calls from the International Committee of Jurists for a different mechanism to promote implementation of recommendations.77 From 2011 onwards there was a change to the requirements for state reports which now included a statement about the implementation of accepted recommendations from previous review cycles. The way that the review cycles occur every four and a half years structurally allows for

72 For a critical review making this point see Nico Krisch, ‘Legitimacy and Legality in International Law: An Interactional Account’ (2012) 106 AJIL 203; On persuasion see Juatta Brunnée and Stephen J Toope, ‘An Interactional Theory of International Legal Obligation’ in Jutta Brunnée and Stephen J Toope (eds), Legitimacy and Legality in International Law: An Interactional Account (Cambridge University Press 2010). 73 Ingo Venzke, ‘Between Power and Persuasion: On International Institutions’ Authority in Making Law’ (2013) 4 Transnational Legal Theory 354. 74 Ryan Goodman and Derek Jinks, ‘How to Influence States: Socialization and International Human Rights Law’ (2004) 54 Duke Law Journal 621. 75 For an example of this critique see Rodger Payne, ‘Persuasion, Frames and Norm Construction’ (2001) 7 European Journal of International Relations 37. 76 UNHRC, ‘Institution Building of the United Nations Human Rights Council’ HRC Res 5/1, UN HRC OR, 5th sess, Annex [IB] (18 June 2007) UN Doc A/HRC/RES/5/1, annex. 77 International Committee of Jurists, ‘ICJ Position Paper on the Review of the Human Rights Council’ (3 February 2011) available at www.icj.org/wp-content/uploads/2012/06/ICJhumanrightscouncil-advocacy-2011.pdf accessed 15 July 2023.

What Is the UPR?   77 repetition, and the timescale is bolstered by processes in between the reviews, such as the adoption of the final report and the mid-term reporting, giving a sense of there being a permanent overall process.78 In fact HRC Resolution 5/1, under a section entitled ‘periodicity and order of the review’, outlines how often each review cycle should occur and the format of what should happen in between review periods.79 Kathryn McNeilly argues that this leads to the UPR process generating a form of ‘internal cyclicality’ which is performative, in the sense that Jane Cowan describes it, but is also imbued with a sense of regularity that is far more dependable than ‘the treaty body monitoring system where reports are often overdue – or not submitted at all’.80 What the UPR process successfully does, McNeilly argues, is shape a conception of time around the review process with its various benchmarks and references to the previous and future reviews in official documents creating a linear temporal cycle which is designed to reinforce the idea that a state is constantly being asked to account for its human rights record.81 This is not really amenable to responding to or dealing with either human rights crises, or to individuals demanding change, rather it prioritises technical and legislative matters relating to altering state behaviour.82 Cowan described the UPR as an ‘audit ritual’ where states are required to engage in public processes of accountability.83 Some of which involve ‘naming and shaming’, but others of which involve the SuR being able to present their case about human rights improvements. Other descriptions of the UPR process as a type of exam with the SuR hoping to ‘pass’ and escape with relatively minimal criticism are less flattering about the process.84 The literature on state shaming and the UPR emphasises not only the public nature of such criticism, but also highlights how the overall political structure of the review process, which leads states to focusing their criticism on some states and to bring certain issues to the fore, generates the conditions for altering state behaviour in

78 The process is detailed here UN Human Rights Council, ‘Cycles of the Universal Periodic Review’ available at www.ohchr.org/EN/HRBodies/UPR/Pages/CyclesUPR.aspx accessed 15 July 2023. 79 HRC Res 5/1, paras 5–14. 80 Kathryn McNeilly, ‘The Temporal Ontology of the Human Rights Council’s Universal Periodic Review’ (2021) 21 Human Rights Law Review 1, 8. 81 ibid. 82 Hilary Charlesworth and Emma Larking, ‘Introduction: The Regulatory Power of the Universal Periodic Review’ in Charlesworth and Larking (eds), Human Rights and the Universal Periodic Review: Rituals and Ritualism (Cambridge University Press 2015). 83 Jane Cowan, ‘The Universal Periodic Review as Public Audit Ritual: An Anthropological Perspective on Emerging Practices in the Global Governance of Human Rights’ in Hilary Charlesworth and Emma Larking (eds), Human Rights and the Universal Periodic Review: Rituals and Ritualism (Cambridge University Press 2015) 44. 84 Jane Cowan and Julie Billaud, ‘Between Learning and Schooling: the Politics of Human Rights Monitoring at the Universal Periodic Review’ (2015) 36 Third World Quarterly 1175.

78  Frederick Cowell relation to human rights.85 The UPR’s explicit intention at its formation was to move beyond outright shaming of states, but the review process still creates a form of structured pressure.86 The process of external pressure is also made effective because of the repetitive structure of the UPR process, as this amplifies pressure and creates the feeling of the impending ‘audit’ or ‘exam’ on a state every four and a half years. Werner Wouter’s theory of repetition in international law places a strong emphasis on the way that international legal processes ‘repeat’ or ‘re-present’ their authority, through constant recitation and repetition, which has the effect of ‘reactualizing’ the sources of international law.87 As Wouter notes attempts by formalists to explain the nature of international institutions as a source of law often focus on the habitual nature of state compliance with them, or the regularity with which states treat institutional decisions as important, reasoning which effectively causes consent based arguments about the sources of international law to recede but emphasises the repetitive nature of state practice. Constant accountability with a structured sense of time, creates a definitive sense of expectation in states as they prepare for a review something that has been noted by scholars of the UPR. Literature sceptical of the UPR’s on the ground impact of human rights, such as Mie Roesdah’s study of human rights engagement in Nepal during the second cycle (2012–2016), describes the way that the review and reporting process creates a set of expectations on the SuR which, in the case of Nepal came into tension with national human rights plans.88 Furthermore, even though there has been some difficulty in establishing and measuring the impact of recommendations universally, the correlation of accepted recommendations with the implementation of human rights standards – such as the increase in treaty ratification following the first UPR cycle – has given the process a degree of institutional permanence.89 Obligation in so-called ‘hard law’ rests on the expectation of compliance with a particular treaty obligation or customary norm, non-compliance is not taken as a sign of the absence of obligation or the inability for an obligation to emerge.90 The expectations and beliefs of states play a major role in the identification of

85 Rochelle Terman and Erik Voeten, ‘The Relational Politics of Shame: Evidence from the Universal Periodic Review’ (2018) 13 The Review of International Organizations 1. 86 For an explanation of how the UPR moved on from shaming Elvira Dominguez-Redondo (n 33) 673. 87 Werner Wouter, Repetition in International Law (Cambridge University Press 2022) 25–37. 88 Mie Roesdah, ‘Universal Periodic Review and its Limited Change Potential: Tracking the Complexity of Multiple Actors and Approaches to Human Rights Change through the Lens of the UPR Process of Nepal’ (2017) 9 Journal of Human Rights Practice 407. 89 Pilar Elizalde, ‘A Horizontal Pathway to Impact? An Assessment of the Universal Periodic Review at 10’ in Alison Brysk and Michael Stohl (eds), Contesting Human Rights: Norms, Institutions and Practice (Edward Elgar Publishing 2019) 83; Theodor Rathgeber, ‘Universal Periodic Review on Southeast Asia Norm Building in Transition: A Hermeneutic Approach’ in James Gomez and Robin Ramcharan (n 2) 37. 90 CM Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’ (1989) 38 ICLQ 850.

What Is the UPR?   79 customary international law, with the ‘subjective element’ of customary international law referring not to whether a state complied with a norm but their expectation that they ought to comply.91 Expectations in the case of the UPR may be procedural in nature, but they can help reinforce the overall climate in favour of compliance with a particular norm. When compared to state reporting to treaty bodies the UPR has a far better track record in encouraging state reporting and engagement with the process.92 Not all of this is necessarily positive for human rights promotion and protection as states can use their reviews as exercises in self-promotion, and there are differences in terms of the formal legal obligations around reporting. But, the regularised participation of states is still demonstrative of how the UPR has managed to encourage a sense of expectation through its repetitive cycles. The UPR can, for example, help reinforce the behaviour of states in relation to the removal of reservations which are incompatible with the object and purpose of a treaty, creating not just an expectation in relation to the procedural legal rule relating to reservations, but also in relation to the substantive to rights over which those reservations were made in the first place.93 How this would work in practice is as follows, taking the example in the preceding section of the minimum age of marriage. If a SuR had accepted a recommendation that their obligations under the CRC or CEDAW meant that the age of marriage should be 18, they would, in future cycles, be reminded of that dimension of their obligation and have to explain what they were doing to facilitate the age of marriage being set at 18. The constant repetition would both shape an understanding of the nature of the obligation and an understanding of what was expected by the SuR. Equality of Participation

When Annan warned in a 2006 speech of ‘a credibility deficit’ surround the UN Commission on Human Rights ‘[which] casts a shadow on the reputation of the United Nations [human rights] system as a whole’ part of that crisis stemmed from the way that states participated at the Commission.94 As the 2005 report from the UN Secretary General’s office noted, for some states membership of the Commission had become an opportunity to ‘protect themselves against criticism or to criticize others’.95 Double standards and

91 Olufemi Elias, ‘The Nature of the Subjective Element in Customary International Law’ (1995) 44 ICLQ 501. 92 Michael J V White, ‘Addressing Human Rights Protection Gaps: Can The Universal Periodic Review Process Live Up to Its Promise?’ in Gomez and Ramcharan (n 2). 93 See Cowell (n 3); See also Nazir, Storey and Yorke in chapter 2. 94 Helen Upton, ‘The Human Rights Council: First Impressions and Future Challenges’ (2007) 7 Human Rights Law Review 29, 29. 95 United Nations, ‘Report of the Secretary-General. 2005. In Larger Freedom: Towards Development, Security, and Human Rights for All’ (26 May 2005) UN Doc A/59/2005/ Add.3.

80  Frederick Cowell politicisation had dogged the Commission on Human Rights, as blocs of UN member states had attempted to shield each other as the Commission considered reports and the great powers had attempted to use their leverage to shield themselves or others from scrutiny of their human rights records.96 The UPR was designed to create a sense of equality between states to eliminate this by treating all states equally through the review process. As UN Secretary General Ban Ki Moon said in 2008, peer review would send a ‘clear message that all countries would have their human rights record and performance examined’.97 At the end of the first cycle equality between states was a feature often highlighted in various accounts of the UPR process.98 Legitimacy, as Lynn Dobson argues, is ultimately a question of the acceptance of a higher order claim as a basis for action, absent coercive institutions or capacities, legitimacy then becomes a political question establishing a political grounding for such acceptance.99 Human rights law can make a case rooted in morality that as it is concerned with the welfare of all individuals and the prevention of suffering it is as a legitimate source of law and the institutions promoting and protecting human rights are in turn legitimate. However, this universal absolutism masks over some very real conceptual disagreements and debates about what rights should be protected and indeed what human rights are, hence in order to have legitimacy a universal review process for human rights should aim for equality between states in order to possess legitimacy. Procedural equality of this sort does not automatically generate a sense of legitimacy, but the way in which all states are able to gain a degree of inclusivity in the UPR process is important for the development of dialogue and the definition of human rights standards. At a much more basic level it allows for countries to express their own political views about what human rights are and ought to be. When the United States was under review in November 2010, Ghana, along with several other states, recommended that the United States ratify the International Covenant on Economic, Social and Cultural Rights (ICESCR), something that the United States had repeatedly objected

96 See two accounts about 20 years apart but both making similar observations in Thomas Franck, ‘Of Gnats and Camels: Is There a Double Standard at the United Nations?’ (1984) 78 AJIL 811, 828; Michael Dennis, ‘Human Rights in 2002: The Annual Sessions of the UN Commission on Human Rights and the Economic and Social Council’ (2003) 97 AJIL 364. 97 Emphasis mine  – Address to the seventh ordinary session of the Human Rights Council, 3 March 2008 available at www.un.org/apps/news/infocus/sgspeeches/search_full. asp?statID¼196 accessed 9 July 2015. 98 Rhona Smith, ‘Equality of Nations Large and Small: Testing the Theory of the Universal Periodic Review in the Asia-Pacific’ (2011) 12 Asia-Pacific Journal on Human Rights Law 36; Dominguez-Redondo (n 57); McMahon and Ascherio (n 29). 99 Lyn Dobson, ‘Legitimacy, Institutional Power and International Human Rights Institutions: A Conceptual Enquiry’ in Andreas Føllesdal, Johan Karlsson Schaffer and Geir Ulfstein (eds), The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives (Cambridge University Press 2014) 190, 200–10.

What Is the UPR?   81 to on political grounds. The United States rejected these recommendations along with other more politicised recommendations from Iran, to ‘refrain from the application of unilateral measures against other countries’.100 The United States had made an equally politically charged recommendation to Iran when it was under review in February 2010, recommending Iran ‘discontinue . . . show trials’.101 This had little to do with the technical implementation of international human rights law, as both states framed their recommendations in politically incendiary language and it can be dismissed as little more than political ‘knock-about’ between geopolitical rivals. Another reading of this is that it provides the conditions for the UPR’s institutional legitimacy as a law-making institution because it gave weight to different conceptions human rights in a formal process. The obvious example of a political institution with law-making authority is the UN General Assembly where there is a rich literature on how its lawmaking capacity evolved.102 As Rosalyn Higgins noted there were constant reminders issued in its early years that the General Assembly had no legislative competence under the UN Charter, but that did not prevent it issuing declarations which could produce duties either because the state accepted them as binding or because they represented an emerging customary norm of international law.103 Even a scholar as committed as Grigory Tunkin was to the doctrine of state consent, noted there was some considerable dispute about the threshold or circumstances where General Assembly resolutions could create legal obligations and by the 1980s there was an acknowledgement that the norms contained within them could be ‘as substantial as that of norms of international law’.104 The International Court of Justice’s (ICJ) main interpretive work in relation to General Assembly resolutions was to see if there was either the formation  – or evidence of the formation  – of custom and in so doing the ICJ gave a framework for recognising the law-making contribution of the General Assembly.105 The shaping of international legal norms the General Assembly undertook with respect to colonialism and racism in the 1960s gained the traction that it did in part because it was directly representative of an otherwise marginal set of voices in international law, the newly independent

100 Human Rights Council, ‘Report of the Working Group on the Universal Periodic Review: United States of America’ (4 January 2011) UN Doc A/HRC/16/11, para 92.57. 101 Human Rights Council, ‘Report of the Working Group on the Universal Periodic Review: Islamic Republic of Iran’ (15 March 2010) UN Doc A/HRC/14/12, para 92.31. 102 See Samuel Bleicher, ‘The Legal Significance of Re-Citation of General Assembly Resolutions’ (1969) 63 American Journal of International Law 444. 103 Rosalyn Higgins, ‘The United Nations and Lawmaking of the Political Organs’ (1970) 64 American Journal of International Law 37. 104 Grigory Tunkin, ‘International Law and Other Social Norms Functioning within the International System’ in Bin Cheng and Ed Brown (eds), Contemporary Problems of International Law: Essays on Honour of Georg Schwarzenberger on His Eightieth Birthday (Stevens and Sons 1988) 288. 105 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226 [70].

82  Frederick Cowell post-colonial states.106 As Marko Öberg notes, the impact of the General Assembly Resolutions on the development of international law can be seen in a variety of different ways, creating authorising effects identifying a right and ‘implying reciprocal obligations to fulfil those rights or at least not to interfere with them’ as we well as modal effects where determinations were made about factual situations, such as the termination of mandates.107 These effects arise in part out of the collective legitimation function that General Assembly resolutions have on the subject matter of those resolutions, even if that collective legitimation is something of a myth and represents the interests of the constituted power in States the General Assembly, which as Inis Claud puts it, has been ‘conferred the function of collective legitimization’.108 It is possible for the ICJ to identify resolutions as containing customary norms or having other modal legal effects precisely because the General Assembly can point to this legitimacy. Conclusion: A Source of Law? Understanding the UPR as a source of law allows for an understanding of international human rights law as a social practice. As the fourth cycle progresses, commitments will be reemphasised and progress demonstrated on the implementation of certain norms. Equally as is more often the case, states will be reminded of the commitments they have not implemented and the expectation on them to implement those commitments. Theories on the sources of law, which would likely contend that a process such as the UPR is not law, rely on collapsing international human rights law into a set of voluntarily commitments in an attempt to demarcate political and legal practice.109 This detaches law from the social reality of how international statements and declarations more generally influence state behaviour. Legitimacy, as Besson sets out, is the crucial element for determining the claim to authority of an international lawmaking process.110 The democratic nature of any law-making process is often regarded as the most obvious form of legitimacy. The UPR, through dialogue and its mass representation, creates a sense of equality between states and this,

106 See Christopher Joyner, ‘UN General Assembly Resolutions and International Law: Rethinking the Contemporary Dynamics of Norm-Creation’ (1981) 11 California Western International Law Journal 445. 107 Marko Divac Öberg, ‘The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’ (2006) 16 European Journal of International Law 879, 886. 108 Inis L Claude, ‘Collective Legitimization as a Political Function of the United Nations’ (1966) 20 International Organization 367. 109 Besson and D’Aspremont, ‘The Sources of International Law: An Introduction’ in Besson and D’Aspremont (n 5) 9–14. 110 Samantha Besson, ‘Theorising the Sources of International Law’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (Oxford University Press 2013) 163.

What Is the UPR?   83 whilst not the same as representative democracy at the national level, is, along with the other features of the UPR process, sufficient to ground a sense of legitimacy in the process. This structure of repetition is a means both of helping state practice but also of ordering the way that time works on the international plane. But the structuring of the socialisation of states excludes the very subject of human rights law – the people themselves and their claims to rights and struggles for recognition. What the UPR does is to reduce human rights questions to the issue of reporting and the procedural, with the process rather than the impact of the changes being at the centre of the consideration. Many of the UPR’s milestones, such as for example the increase in treaty ratification it promoted, were about binding states further into the system of international human rights law in the probable expectation of the eventual improvement of human rights on the ground. Yet, at the same time, the maintenance of procedural regularity and socialisation is what allows the UPR to shape state behaviour, giving it the hallmarks of a law-making process.

4 Putting Down Roots Analysis of UPR Recommendations in the First Three Cycles Edward R. McMahon and Tomek Botwicz

Overview and Context A core, even existential, issue facing standards-based intergovernmental organisations (IGOs) is how to promote adherence to commonly agreed-upon norms.1 This has become an increasingly salient question with not only the growth, but also heightened concerns about the impact and efficacy, of IGOs in recent decades. One method, which has been adopted by a few organisations, and which has begun to attract attention more broadly, has been the development of peer-based initiatives to assess performance and make recommendations on improving adherence with shared norms. A notable example is the Development Assistance Committee peer review process of the Organization of Economic Cooperation and Development; another is the United Nations Human Rights Council’s (HRC) Universal Periodic Review (UPR) mechanism. In 2007 the HRC was created, replacing the widely discredited Commission on Human Rights. In turn, the HRC unveiled the UPR, a new mechanism designed to be a leading feature of the HRC, and reflective of an inclusive and cooperative approach to addressing human rights issues. The UPR’s mission has been to promote human rights through a participatory peer-review feedback process to its 193 member states on their human rights performances. The UPR evaluates 42-member states’ performances yearly. The process is conducted at the United Nations HRC headquarters in Geneva, Switzerland, although during Covid-19 virtual participation provisions were implemented. The UPR has now existed for 15 years. It has attracted both supporters, who view this as an innovative and non-coercive approach to universal human rights protection, as well as critics who suggest that it may in part be an ineffectual process, providing cover for human rights violating states. The UPR

1 See, for example: Trine Flockhart (ed), Socializing Democratic Norms: The Role of International Organizations for the Construction of Europe (Palgrave Macmillan 2005); Jon C Pevehouse, ‘Democracy from Above: Regional Organizations and Democratization’ (2005) 84(3) Foreign Affairs available at https://doi.org/10.2307/20034358 accessed 12 December 2022. DOI: 10.4324/9781003415992-6

Putting Down Roots  85 has completed three cycles of reviewing all UN member states human rights records. The process has produced approximately 100,000 recommendations, of which almost three-quarters have been supported (agreed to) by the member states. It is thus appropriate to draw some conclusions about the performance of the mechanism. In this chapter we provide a brief overview of the functioning of the UPR. This is followed by a literature review providing context for our analysis. We then examine recommendation data points temporally, over the life of the UPR. These include the number of recommendations, the number of supported recommendations, which regions are making recommendations to which other regions, and what issues attract the most attention provide important perspective. We also consider the relationship of regime typology to patterns in making and receiving recommendations. This multi-method approach is designed to shine light on key aspects of the UPR’s functioning. Additional insight is provided by utilisation of the UPR Info Action Category methodology, in which recommendations are assessed by the level of action being requested. Different gradations – including continuing a recommended action, studying it, addressing it in a general fashion, or dealing with it in a specific manner  – provide insight into the relative importance of the recommendation. The methodology also enables assessment of which countries (and regions) are making which types of recommendations, what patterns exist in terms of support/noted by action category, and how countries with differing political systems approach the UPR process. Undertaking this analysis, we suggest, provides important clues as to whether the states are taking the process seriously or using it merely for public relations. We suggest that overall, the UPR has begun to contribute to the promotion of human rights; in effect, the roots have been planted for the UPR to promote growth in global respect for human rights. Literature Review The gold standard for determining the utility of the UPR awaits the development of a methodology providing an empirical global assessment of improvements in human rights attributable to the UPR. This is, of course, an extremely challenging task as it requires an understanding of 193 different contextual country environments and credible justification of the role of UPR in citing human rights improvements. While we should not expect the appearance of such a methodology anytime soon, it is possible to see a mosaic of the UPR’s performance from existing literature. This literature covers a breadth of themes reflecting expanding perceptions of what constitutes human rights. To cite two examples, in analysing the UPR’s second cycle, the United Nation’s Population Fund determined that ‘[m]ost States (63 per cent) acted on at least three quarters of the sexual health and reproductive rights (SRHR)-related recommendations they supported. This positions the UPR as an important mechanism for action on

86  Edward R. McMahon and Tomek Botwicz SRHR and accountability for States’ commitments’.2 And regarding prevention of drug abuse, Anne Lips et al., determine that ‘in general, the UPR is contributing to positive change on the ground’. They add that due to its uniquely inclusive and universal character, the UPR constitutes a valuable tool for civil society to raise awareness of the wide spectrum of human rights violations endured by people who use drugs and their communities and to hold states accountable.3 Some literature is country or region specific. Examining the case of China, Mao and Sheng conclude that ‘implicit politicization’ undeniably continues to exist in the UPR, although it differs from the ‘explicit politicization’ of the previous Commission on Human Rights. The effect of ‘implicit politicization’ is that the absence of specific action requirements weakens the quality of a considerable number of recommendations and lessens their practical significance’. They also determined, however, ‘that nearly half of the recommendations triggered changes in domestic human rights policies’.4 Writing about the utility of the UPR in an Islamic world context, Amna Nazir concludes [w]hat emerges is a common theme of regionalism used to undermine the review process, and this is often seen with vague language. Furthermore, several Muslim states perpetuate a false relativism narrative and use religion to account for a lack of adherence to international human rights law’ Despite this, however, she emphasises that ‘the UPR sheds light on Muslim state practice and international law by providing a constructive, transparent, and cooperative platform to engage in human rights issues, a much- needed improvement on its predecessor’.5

2 United Nations Population Fund (UNFPA), ‘Lessons from the Second Cycle of the Universal Periodic Review’ (2019) available at https://shorturl.at/eUW08 accessed 12 December 2022. 3 Anne Lips and others, ‘Making the Universal Periodic Review Work for People Who Use Drugs’ (2019) available at https://frontlineaids.org/wp-content/uploads/2019/04/ PITCH_Making-UPR-Work-PUD-Report_web.pdf accessed 12 December 2022. 4 Junxiang Mao and Xi Sheng, ‘Strength of Review and Scale of Response: A Quantitative Analysis of Human Rights Council Universal Periodic Review on China’ (2017) 23(1) Buffalo Human Rights Law Review available at https://digitalcommons.law.buffalo.edu/bhrlr/ vol23/iss1/4 accessed 12 December 2022. 5 Amna Nazir, ‘The Universal Periodic Review and Muslim States’ Engagement’ (2019) 15(1) Journal of International Law and Islamic Law available at www.open-access.bcu. ac.uk/8484/1/Nazir_UPR_Muslim_State_Engagement.pdf accessed 12 December 2022.

Putting Down Roots  87 Jane Cowan and Julie Billaud have examined the extent to which the aspirations of the UPR are realistic, considering deep North-South cleavages. Focusing on the final year of the UPR’s first cycle, they identify how the aims were both pursued and subverted, paying attention to two distinct ways of talking about the UPR: first, as a learning culture in which UN member states, “share best practice” and engage in constructive criticism, and second, as an exam which UN member states face as students with vastly differing attitudes and competencies.6 Much of the literature provides overview assessments of the UPR. These reflect a preponderance of opinion that the UPR provides some measure of value to human rights globally. For example, Ehsaneddin Asgari and Ali Sanei examined the first and second cycles of the UPR, focusing on the substance of recommendations. They concluded that ‘[o]ur early results indicate that comments received by countries in the UPR process indeed captures real human rights records of countries, especially when one averages over all the comments received from different states’.7 Similarly, Su Hyen Bae, using social network analysis, suggests that ‘while the UPR shows certain bias in state behaviour for providing recommendations, the UPR otherwise functions according to its purpose of condemning human rights violations’. He further found that member states’ human rights index scores and the level of democracy correlate with the number of recommendations received.8 Damian Etone has concluded that ‘it is plausible that over time acculturation may help narrow the UPR implementation gap through effective NGO participation in the UPR process’.9 He also notes that the UPR mechanism shows the power of peer pressure and global culture in enforcing human rights law through state influence. Acculturation particularly favours the UPR mechanism because it is based on peer review and not configured to involve a selected group of insiders or experts, examining, or reviewing those considered as outsiders or states. This helps to dispel the perception of “us” vs “them”.10

6 Jane K Cowan and Julie Billaud, ‘Between Learning and Schooling: The Politics of Human Rights Monitoring at the Universal Periodic Review’ (2015) 36(6) Third World Quarterly 1175–90. 7 Ehsaneddin Asgari and Ali Sanaei, ‘Measuring Countries’ Human Rights Positions in UN Universal Periodic Review’ (2017) SSRN Electronic Journal available at https://doi. org/10.2139/ssrn.3029031 accessed 12 December 2022. 8 Su Hyen Bae, ‘Power, Politization, and Network Positions: Explaining State Participation in the UPR’ (2018) 16(3) The Korean Journal of International Studies 335–65. 9 Damian Etone, ‘Theoretical Challenges to Understanding the Potential Impact of the Universal Periodic Review Mechanism: Revisiting Theoretical Approaches to State Human Rights Compliance’ (2019) 18(1) Journal of Human Rights 36–56. 10 ibid.

88  Edward R. McMahon and Tomek Botwicz The concept of acculturation may be applied to the UPR more broadly. As countries become increasingly vested in the UPR mechanism, they become enmeshed in the universal norms and procedures. One example is the advent of voluntary mid-term reporting by states under review (SuRs) of compliance to recommendations, a procedure that was not envisioned in the original protocols establishing the UPR. Etone notes that [a]cculturation provides a more suitable theoretical framework to understand the potential impact of the UPR mechanism on the influence of state. The inclusive, cooperative, and collaborative framework of the UPR process are important and effective conditions for acculturation. Acculturation is a process and through this process, continuous engagement with the UPR mechanism can over time transform the shallow human rights commitment of states into a deeper commitment.11 Kazuo Fukuda suggests that the UPR can have a positive impact in states that have relatively more pluralist systems. He opines that ‘the UPR’s added value lies in providing a forum to incrementally and constantly challenge the threshold of states under review for accepting their commitment to addressing controversial human rights issues’.12 He focuses on recommendations given to states under review by their peers and suggests the way forward for the UPR mechanism could be by ‘reframing it as a forum of fighting for borderline recommendations’. He suggests that while states like North Korea may remain impervious to the UPR, countries considered ‘illiberal democracies’, with extant elements of pluralism, may be more susceptible to its impact.13 Karolina Milewicz and Robert E. Goodin conclude that [o]ur analysis of responses to its reports and recommendations suggests that the deliberative processes surrounding the UPR do indeed evoke co-operative responses even from countries with poor human rights records. Its highly inclusive, deliberative, repeated-play and peer-topeer nature can serve as a model for how international organizations more generally can enhance deliberative capacity across the international system.14

11 ibid. 12 Kazuo Fukuda, ‘Human Rights Council’s Universal Periodic Review as A Forum of Fighting for Borderline Recommendations? Lessons Learned from The Ground’ (2022) 20(2) Northwestern Journal of Human Rights available at https://scholarlycommons.law.northwestern. edu/njihr/vol20/iss2/1 accessed 12 December 2022. 13 ibid. 14 Karolina M Milewicz and Robert E Goodin, ‘Deliberative Capacity Building through International Organizations: The Case of the Universal Periodic Review of Human Rights’ (2018) 48(2) British Journal of Political Science 513.

Putting Down Roots  89 Sangeeta Shah and Sandesh Sivakumaran see a value in the promotion of international human rights law The Human Rights Council’s Universal Periodic Review (UPR) provides a unique insight into states’ perceptions of international human rights law. Our empirical analysis of the 57,685 recommendations made during the first two UPR cycles demonstrates that, where states refer to international legal materials, they have not limited themselves to the bases of review in Resolution 5/1. Instead, they have interpreted the types of instruments and the notion of “human rights” expansively.15 The preceding examples of literature have been mainly positive in nature. Other assessments critique aspects of the UPR, and how it is utilised by member states, although it should be emphasised that they also do not ipso facto reject the UPR out of hand. Natalie Baird, for example, assessed the role of international nongovernmental organisations in Pacific Island States. Viewing the UPR as a useful exercise, she determined that the involvement of international NGOs in the UPR of Pacific states is useful in a number of respects, it also brings with it the risk of diluting the Pacific civil society voice in Geneva and perhaps even contributing to a distorted human rights “picture” of a particular state. Some suggestions are made as to practical steps which could be taken by international NGOs to engage with Pacific NGOs in their UPR advocacy.16 Judith Bueno de Mesquita et al. have examined the UPR from the perspective of global health promotion. They argue that the UPR, while useful, could be utilised more fully in support of the Sustainable Development Goals in general, and by global health advocates specifically.17 Rochelle Terman and Eric Voeten find that states are more lenient towards their strategic partners in the peerreview process. Yet when they do criticize, their recommendations are supported more often than substantially identical recommendations emanating from other states with fewer strategic ties. As far as shaming

15 Sangeeta Shah and Sandesh Sivakumaran, ‘The Use of International Human Rights Law in the Universal Periodic Review’ (2021) 21(2) Human Rights Law Review 264–301. 16 Natalie Baird, ‘The Role of International Non-Governmental Organizations in the Universal Periodic Review of Pacific Island States: Can “Doing Good” be Done Better?’ (2015) Melbourne Journal of International Law 550. 17 Judith Bueno de Mesquita and others, ‘Monitoring the Sustainable Development Goals through Human Rights Accountability Reviews’ (2018) 96(9) Bulletin of the World Health Organization available at https://doi.org/10.2471%2FBLT.17.204412 accessed 12 December 2022.

90  Edward R. McMahon and Tomek Botwicz disseminates powerful signals regarding political relationships between states, these interactions can be meaningful and influential, even as they remain selective and politicized.18 An overall theme of this literature review is thus that there is at least some validity to the UPR. None of the literature consulted concluded that the UPR is simply a vapid, valueless exercise. Given the apparent shared sentiment within the academic and policy communities of at least some usefulness to the UPR, an analysis of its performance and what trends and dynamics exist within the mechanism is warranted. After all, about 100,000 recommendations have been made in the UPR’s 15 years of existence, providing an ample range of data for analysis. Drawing upon this data, the next section is designed to complement the above discussion by deepening our understanding of UPR dynamics by disaggregating and analysing variables related to recommendations made. Data Analysis From Previous Cycles Action Coding Description

To better understand the utilisation and performance of the UPR, beginning in 2009 we developed a content analysis methodology for UPR recommendations.19 This involves an Action Category scale which ranks recommendations made based on the verbs employed in the recommendation language. This provides a window on how much states view the UPR as providing a weak or, by contrast, robust approach to human rights peer review. We have sought to identify which recommendations are action-oriented and clearly verifiable, reflecting a stronger engagement with the process on the part of both recommending states and SuRs, as opposed to those recommendations which are less specific or action-oriented, representing a lower bar for SuRs to surmount, and which, we suggest, represents a weaker approach. The determinants of coding per action category are as follows, along with verbs of categorical indication: Category 1 • Recommendations directed at non-SuR states to aid or calling upon SuR states to request financial or other assistance from non-SuR states

18 Rochelle Terman and Erik Voeten, ‘The Relational Politics of Shame: Evidence from the Universal Periodic Review’ (2018) 13(1) The Review of International Organizations 1–23. 19 UPR Info, ‘UPR Info’s Database: Acton Category’ (2023) available at www.upr-info.org/ sites/default/files/general-document/2022-05/Database_Action_Category.pdf accessed 7 February 2023.

Putting Down Roots  91 • Share, seek, request Example: ‘Draw on the support of the international community and the relevant United Nations mechanisms to reinforce and protect human rights’, Qatar to Libya, Cycle 3. Category 2 • Recommendations emphasising continuity in actions and policies • Continue, persevere, maintain Example: ‘Continue efforts to promote religious tolerance by ensuring accommodation for religious minorities in the workplace’, Malta to Rwanda, Cycle 3. Category 3 • Recommendations to consider change • Consider, reflect upon, review, envision Example: ‘Consider extending a standing invitation to all special procedure mandate holders of the Human Rights Council’, Latvia to Oman, Cycle 3. Category 4 • Recommendations of action of a general nature • Take measures or steps towards, encourage, promote, intensify, accelerate, engage with, respect, enhance Example: ‘Strengthen the efforts to combat and prevent violence against women to ensure that perpetrators are brought to justice’, Maldives to Australia, Cycle 3. Category 5 • Recommendations with specific, tangible, and verifiable actions • Sign, mandate, adopt, abolish20 Example: ‘Entirely prohibit the corporal punishment of children, inter alia, by amending the Criminal Code of 2011’, Germany to Marshall Islands, Cycle 3. In general, Categories 1, 2, and 4 are more acceptable to SuRs and are easier to implement. Category 1 recommendations are addressed to other states to provide support and assistance. Category 2 recommendations simply require

20 Further information on the action category scale is available at Edward R. McMahon, The Universal Periodic Review: A Work in Progress (Friedrich-Ebert-Stiftung 2012) available at https://library.fes.de/pdf-files/bueros/genf/09297.pdf accessed 12 December 2022.

92  Edward R. McMahon and Tomek Botwicz continuation of existing activities. Category 3 recommendations, by contrast, often deal with more sensitive issues which require the development of a host constituency for support. The generality inherent in Category 4 recommendations means that the SuRs in question have considerable leeway in determining what constitutes successful fulfilment of the recommendation. Category 5 issues contain specific and verifiable required actions. Category 3 and 5 recommendations have lower supporting rates by SuRs.21 The First Cycle

In 2012, we provided an initial assessment of the UPR.22 It concluded that the UPR provides a platform for UN member states to make recommendations to fellow states on how to improve their promotion and protection of human rights, and that it had the potential to become an important part of anchoring universal human rights norms in practice. It examined how the mechanism performed, and the dynamics emergent throughout the first cycle. The following trends were noted: • Although there was no legal obligation to do so, all UN member states participated. The mechanism was well-used; almost all states participated in the review with senior government representatives and the number of recommendations increased to just over 2,000 recommendations per session. • Slightly over two-thirds of all recommendations were supported, a percentage which increased moderately over the life of the first cycle. • Recommendations associated with the most specific actions (Category 5) received the lowest rates of implementation, as did, interestingly, Category 3 recommendations asking SuRs to simply consider certain types of extremely sensitive recommendations issues (e.g., legalising same-sex relations, outlawing capital punishment). • Recommendations emphasising continuity of action, or actions of a general nature  – making it easier for SuRs to define and thus assert compliance with – tended to have higher levels of implementation. • Three-quarters of all recommendations were action-oriented, although over half of these were of a vague and general nature. • While recommendations were received regionally in proportion to UN membership, a large plurality of recommendations were made by the Western European and Other (WEOG) group. • African and Asian states were more likely to make softer recommendations (i.e., to continue what an SuR is already doing, or to take a general action)

21 UPR terminology denotes recommendations accepted by SuRs to be ‘supported’, while those rejected are ‘noted’. 22 McMahon (n 20).

Putting Down Roots  93 while WEOG states were more likely to issue specific action-oriented recommendations. • The most common recommendations address issues related to international instruments, women’s and children’s rights, torture, and the administration of justice. • More democratic states tended to make more action-oriented recommendations. This was true across regions. The report also suggested the existence of some positive, while modest, results, reflecting a view that the impact of the UPR would prove to be gradual, rather than immediate. Results identified included: • Heightened attention to the process within governments; • Improved dialogue between some governments and civil society, both on a national and international level; and • The development of some useful precedents such as the issuance of midterm compliance reports. This view was echoed by other analysts. Joanna Harrington, for example, noted that, at the conclusion of the first cycle the development of a process of self-evaluation was emerging within states, with the prospect of a future review before the HRC leading many states to engage in a process of internal review and inter-ministerial discussion.23 In October 2014, the nonpartisan NGO UPR Info issued an analysis of the extent to which SuRs had been implementing recommendations by the midterm point between their first and second assessments in the established fouryear cycle.24 This report was based on compliance data provided not only by SuR governments, but also by civil society organisations from 165 countries. The report determined that 55 per cent of recommendations supported by the SuRs were implemented fully or partially by the midterm point. The East European (EEG) group of nations was determined to have been most effective at implementing reforms, while Asian states were deemed to have been least effective. Interestingly, 19 per cent of noted recommendations were also somewhat or fully implemented. The report suggested this may have been because SuRs found that some of these recommendations, which they had determined to be unrealisable, were in fact possible to implement, at least partially.

23 Joanna Harrington, ‘UN Human Rights Council Brings to an End the First Cycle for Universal Periodic Review’ (2012) EJIL Analysis available at www.ejiltalk.org/un-human-rightscouncil-brings-to-an-end-the-first-cycle-for-universal-periodic-review/ accessed 12 December 2022. 24 UPR Info, ‘Beyond Promises: The Impact of UPR on the Ground’ (2014) available at www. graduateinstitute.ch/sites/internet/files/2020-11/2014_beyond_promises.pdf accessed 12 December 2022.

94  Edward R. McMahon and Tomek Botwicz The Second Cycle

In 2016 we prepared an analysis comparing the performance of the first cycle with sessions 13 through 22 of the second cycle of the UPR.25 In order to provide longitudinal analysis, we utilised several metrics similar to the 2012 report. These included the: • Number of Recommendations • Responses to Recommendations • Breakdown of Supported/Noted by Region • Breakdown by Action Category • Distribution of Recommendations by Region of SuR and Recommending Region • Distribution of Action Categories by Recommending State • Common Issues in Recommendations Much of the data appeared to reflect continuity in the way that states functioned within the UPR. For example, the overall percentage of supported as compared to noted/other responses increased only slightly, from 73% per cent to 75 per cent. There was also a significant similarity in the distribution of action recommendation categories. The ratio of weaker types of recommendations (Categories 1, 2, and 4) remained similar, totalling overall about 58 per cent of recommendations versus 42 per cent for the stronger Categories 3 and 5. Categories 1, 2, and 4 maintained the highest combined support rates, at just over 88 per cent while Categories 3 and 5 totalled about 55 per cent of supported recommendations. The fact that the proportions of action category distribution remained similar from Cycle 1 to Cycle 2 demonstrated that there was no increase in the weaker percentage of recommendations. Conversely, however, neither was there evidence of recommendations becoming more targeted and specific despite suggestions from several observers of the process that this would be helpful.26 As noted previously, however, there are some indications that this may be changing. The breakdown of recommendations made to various regions remained similar. Africa and Asia continued to receive the greatest percentage of recommendations at between 25–30 per cent. EEG rose slightly from 11 to 14 per cent while WEOG (15 per cent) and GRULAC (17 per cent) remained

25 Edward R. McMahon and Elissa Johnson, ‘Evolution Not Revolution: The First Two Cycles of the U.N. Human Rights Council Universal Periodic Review Mechanism’ (2016) The Friedrich Ebert Stiftung available at https://library.fes.de/pdf-files/iez/global/12806.pdf accessed 12 December 2022. 26 See for example, UPR Info, ‘For Impact on the Ground the UPR Needs SMART Recommendations’ (2015) available at https://upr-info.org/en/news/impact-ground-upr-needssmart-recommendations accessed 6 February 2023.

Putting Down Roots  95 steady. Similarly, the distribution of recommendations by region remained very consistent. Support rates for Africa, WEOG, and EEG remained largely the same, while those for Asia declined modestly, from 76 per cent to 69 per cent. Interestingly, the support rates for the Group of Latin American and Caribbean Countries (GRULAC) were almost the exact opposite, growing from 69 per cent to 77 per cent. The prominent level of intraregional support rates for Africa and Asia in both cycles as compared to WEOG suggested that WEOG in effect treated itself tougher, i.e., made more Category 5 recommendations to fellow regional states than some other regions. The story, however, was not completely one of continuity, as the total number of recommendations rose. The average number of recommendations per SuR increased by about 30 per cent, from 111 to 160. The report noted that this was not surprising, given increased familiarity with the UPR and its methodology, and that it could be representative, at a basic level, of greater acceptance of the UPR by UN member states. Perhaps most interestingly, there were also changes regarding which regions were making recommendations. Both Africa and Asia increased their share slightly, to 15 per cent and 22 per cent respectively. By contrast WEOG’s share of recommendations dropped by a quarter. The proportionality of supported recommendations mirrored therefore almost exactly the UN membership by region. The report suggested that the UPR could thus be viewed as becoming more truly universal in application. This did not mean the UPR’s functioning was becoming weaker because, as noted, the distribution of recommendations by action category remained constant. An exception to the similar action category distribution of recommendations was an increase in Category 2 recommendations. This was logical; recommending states would want to revisit their recommendations from the first cycle. If they had not been met and remained relevant, it is understandable that they would again cite them and suggest that continued progress should be made towards their realisation. There was continued emphasis on international instruments as the most frequently addressed issue in recommendations. International instruments, women, children, torture, and justice remained the most cited issues. There was also consistency in WEOG states making higher percentages of recommendations in the top five issues. Consideration of several sensitive issues (death penalty, sexual orientation and gender identity, and special procedures) reflected continuity over the two cycles, both in terms of the overall numbers and regions making them. Reflecting member states’ focus on these types of issues, WEOG provided a disproportionately large and growing number of these issue recommendations, rising from 47 per cent in Cycle 1 to 57 per cent in Cycle 2. The report also addressed recommending state regime typologies and recommendation action levels. It determined that, except for the EEG region, democracies were more active than states determined to be partly free, which

96  Edward R. McMahon and Tomek Botwicz in turn were more active than states assessed to be not free. This buttresses what is often observed in practice – that democracies place more emphasis on human rights protection than states with other forms of government. This trend increased from Cycle 1 to Cycle 2 indicating that democracies were becoming more active in their recommendations, at a rate greater than less democratic regional neighbors; in the second cycle recommending states, and especially democracies, used the UPR in an increasingly robust fashion. Comparative Analysis for Cycles 1–3 To analyse the performance of the UPR mechanism over the three cycles, we have developed equalised data sets. As previously stated, the mandated 2010–11 review led to modest reforms of the mechanism, notably changing the length of each cycle from 12 sessions to 14 sessions. Due to this differing length, equal comparison requires focusing on averages rather than totality. A second methodological challenge is that Cycle 3 had yet to be concluded at the time of this analysis, with complete data for its last six sessions outstanding. To address these problems, we have made two adjustments to the existing data. First, to equalise the number of sessions across cycles, the 2010–11 reforms necessitated average-based projections to ensure Cycle 1 was compared as-if it had 14 sessions. In other words, we present Cycle 1 as if it had maintained its pace of recommendations for 14 sessions rather than 12. This allows for equal cycle length across the board, illuminating trends in the UPR mechanism. Therefore, absolute figures for Cycle 1 deviate from the UPR database while remaining proportionally constant. The resulting data presents us with the ability for direct comparison between cycles to understand both absolute and proportional trends. In addition, this chapter was drafted utilising available data from the UPR Info database, up through Session 36. It thus reflects hard data for 10 of Session 3’s 14 Sessions. We therefore ran an average-based projection for the remainder of Cycle 3’s performance, which, barring unexpected deviations, should provide a solid foundation for comparative analysis. Lastly, as noted in our previous analyses, they were not completely based on the UPR cycle calendars. For the benefit of future comparative analysis, we have updated our previous data such that it fully aligns with the official UPR cycles. Number of Recommendations

The 48,516 projected recommendations in Cycle 3 average 3,465 per session and 251 per state under review. By contrast, the corresponding average per session was 2,596 for Cycle 2 and 1,780 for Cycle 1. The corresponding per state under review average was 188 for Cycle 2 and 129 for Cycle 1. These figures represent a doubling of the use of the mechanism from Cycle 1 to Cycle 3. These consistent increases initially suggest that the mechanism has become

Putting Down Roots  97

Figure 4.1  Number of recommendations per cycle

increasingly familiar and understood by member states and organisations. This would appear to be a positive sign, reflecting a growth in the use of, and hence legitimacy, of the UPR. The continued increase in the number of recommendations may pose administrative and procedural issues for the mechanism. It also raises the question of whether some governments have sufficient absorptive capacity to respond to and implement supported recommendations. Proliferation of recommendations may necessitate expanding resources to the UPR mechanism. Distribution of Recommendations by Region of SuR and Recommending Region

In analysing the distribution of recommendations by region of SuR, we find an absolute increase across all regions, indicating greater engagement with the mechanism across the board. Notably, WEOG experienced the greatest relative increase from Cycle 1 to 3 at 95 per cent, indicating that other regions are issuing a greater number of recommendations towards it. Africa and Asia experienced the second greatest increase in recommendations from Cycle 1 to 3 at 86.3 per cent and 88.6 per cent respectively. GRULAC and EEG followed with 77.4 per cent and 65.5 per cent. Proportionally speaking, the distribution of recommendations received by SuR region has remained similar over the life of the UPR, with modest percentage increases to WEOG and Asia regions, a corresponding decline in GRULAC and EEG, and continuity in Africa.

98  Edward R. McMahon and Tomek Botwicz

Figure 4.2 Distribution of recommendations by region of SuR and recommending region

Figure 4.3  Distribution of recommendations received by SuR region by proportion

In terms of recommending regions, there is once again an absolute increase across all regions. However, as evidenced by both absolute and proportional increases, Asia has experienced the greatest increase in making recommendations, with a 9 per cent increase from Cycle 1 to Cycle 3. Africa experienced a 6.5 per cent gain while remaining relatively constant over

Putting Down Roots  99

Figure 4.4 Recommending region of state under review

Figure 4.5 Recommending region of state under review by proportion

Cycles 2 to 3. WEOG has significantly decreased in its share of recommendation issuance, from over 41.0 per cent to 27.5 per cent; a data point that needs explanation. GRULAC and EEG have remained relatively constant. Responses to Recommendations

In Cycle 1, 73.2 per cent of recommendations were supported while 26.8 per cent were noted. The corresponding figures for Cycle 2 were 73.5 per cent and 26.5 per cent, and for Cycle 3 were 74.6 per cent and 25.4 per cent. The relative percentages have thus remained highly consistent. This remarkable similarity in the ratio of supported to noted recommendations, after about 100,000 recommendations, demonstrates the reproducibility of the mechanism’s utility cycle-over-cycle. A 75 per cent support rate can be considered reflective of a healthy level of use of the mechanism; if, for example, only one-quarter of recommendations were to be supported, that could call into question the utility of the mechanism. On the other hand, neither has the support rate increased over time. This can also be interpreted positively, as an exceedingly high support rate could raise questions about either the significance of the recommendations, or whether actual implementation is taking place. In terms of regional variations in recommendation support, we see almost no regional variations over the three cycles. Recommendation Breakdown by Action Category

When investigating distribution of recommendations by category over the three cycles we find an absolute increase across Categories 2, 4, and 5. Categories 1 and 3 experienced a small decline. Although Categories 2 and 4 are softer, the absolute increase in Category 5 recommendations is notable given that these harder recommendations continue to be made at record rates. Investigating this proportionally, we find minimal change (