Human Rights Law/Mechanisms for Human Rights Protection
Regional Mechanisms of Protection
The African Human Rights System
Africa is associated more with human rights problems and humanitarian crises than with their solutions, more with the need for international human rights law than its applications, and more with the failure of international law than with its success.
The African Charter on Human and Peoples Rights
The source of African enrichment of international human rights law most frequently cited is the African Charter on Human and Peoples Rights (African Charter). The OAU Assembly of Heads of State and Government adopted this regional instrument in 1981. It entered into force in 1986. Today all AU member states except South Sudan are party to the African Charter.
Common wisdom has it that the African Charter is autochthonous in its inclusion of the concept of peoples, its enumeration of individual duties, the non-justiciability of the dispute settlement procedure, its anti-colonial stance, its emphasis on morality, and its placing of first generation rights on a par with second and third generation rights.
Western-dominated discourse privileges the individual. Human rights instruments postulate an autonomous, independent individual (complainant), who is prepared, ultimately, to dissociate from others and enter into legal battle with the collectivity (the state). The African Charter treats the human being both as an individual and as a member of the collective (the people). Generally, every individual is a bearer of rights under the African Charter. The communal aspect is emphasised in the rights guaranteed to peoples and in the recognition of the family as the natural unit and basis of society.
One reason why the Universal Declaration was not adopted as a binding document was Western opposition to implementing second generation rights in the same way as first generation rights. The subsequent creation of the two covenants stands as an illustration of this split. The same bipolarity was taken up in most international human rights treaties, domestic human rights regimes, and at the regional level. The African Charter does not offer any basis for a distinction in the implementation of various categories of rights. Civil and political rights are included next to socio-economic rights. The Preamble states that civil and political rights cannot be dissociated from economic, social and cultural rights. No difference in implementation of the two categories of rights is provided for. However, some of the socio-economic rights are internally qualified, such as the right to enjoy the best attainable state of physical and mental health.
The dominant discourse at the end of the 1970s referred to rights only. By implication, duties were underplayed, as they were regarded as a threat to the concept of rights. The African Charter departs from the premise that rights and duties inevitably exist concomitantly. The Preamble draws the inference that the enjoyment of rights and freedoms also implies the performance of duties. A list of duties is provided in article 29 of the African Charter, each implicitly embodying the values of African civilization. The principle that rights and duties are reciprocal forms the basis of article 27(2), which may be described as a general limitation provision. Art 27(2) states that rights must be exercised with due regard to the rights of others, collective security, morality and common interest.
Unlike other regional instruments of a general nature protecting human rights (the European Convention and the American Convention) and the International Covenant on Civil and Political Rights, the African Charter contains no clause on the derogation of human rights. This absence must be contrasted with the fact that most African constitutions contain such a clause and that African states frequently declare states of emergency.
Despite the fact that many quasi-judicial monitoring bodies have been established, the discourse (at least at regional and domestic level) privileges enforceable judicial means. At the time the African Charter was drafted, the two other regional systems each provided for a court as final arbiter for resolving disputes. The African Charter opts for a quasi-judicial institution, the African Commission on Human and Peoples Rights (African Commission). The African Charter and the African Commission itself have emphasised amicable settlements between parties, the argument that the preference for a commission above a court reflects an inherently African conception of dispute resolution may be countered if regard is given to the political context at the time of drafting. Weakening the implementation mechanism was most likely a compromise necessary to ensure the support of rulers not yet completely committed to human rights, democracy and the rule of law.
The African Commission monitors compliance by state parties with the African Charter, through State Reporting, individual complaints system and inter-state complaints system.
The African Charter on the Rights and Welfare of the Child
The 1989 Convention on the Rights of the Child (CRC), which entered into force in 1990, has subsequently been ratified by all African member states of the UN except Somalia. Even before the entry into force of the CRC, the OAU Assembly of Heads of State and Government adopted a regional pendant to the CRC: the African Charter on the Rights and Welfare of the Child (African Children’s Charter).
In a number of respects, the African Children’s Charter sets a higher level of protection for children than its UN equivalent. Some of the most dramatic differences are highlighted below:
1. Under the African Children’s Charter no person under 18 is allowed to take part in hostilities. The CRC allows children between 15 and 18 to be used in direct hostilities.
2. The CRC allows the recruitment of youths between 15 and 18, while the African Children’s Charter requires states to refrain from recruiting anyone under 18.
3. Child marriages are not allowed under the African Children’s Charter. The same does not apply to the CRC, in terms of which the age of majority may be attained below the age of 18.
4. The scope of the protection of child refugees is broader under the African Children’s Charter, which allows for internally displaced children to qualify for refugee protection. The causes of internal dislocation are not restricted, but may take any form, including a breakdown of the economic or social order.
5. Under the African Children’s Charter, the best interest of the child is ‘the primary consideration’ not merely ‘a primary consideration’ as provided for in the CRC.
Each of these aspects resonates with the precarious position in which children find themselves in Africa. Although not restricted to Africa, child soldiers, child marriages and child refugees are recurring problems on the African continent.
As in the case of the CRC, the African Children’s Charter provides for a supervisory body. The body established under the African Children’s Charter, called the Committee of Experts, has a broader mandate than the CRC Committee. The African Committee of Experts is not only tasked to examine state reports, but is also to make recommendations arising from individual or interstate communications. In fact, acceptance of this complaints mechanism is part and parcel of ratifying the African Children’s Charter. This contrasts sharply with the mandate of the CRC Committee, which provides only for the examination of state reports. Apart from setting a higher standard in numerous respects, the African Children’s Charter also incorporates some uniquely African features. As in the mother document, the African Charter, duties are placed on individual children. However, it should be noted that collective or people’s rights are not included in the African Children’s Charter.
The protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol)
The Maputo Protocol is a legally binding multilateral supplement to the African Charter. It was adopted in 2003 and entered into force on November 25, 2005. According to its preamble, the Protocol was adopted to address the concern that ‘despite the ratification of the African Charter and other international human rights instruments by the majority of State Parties, women in Africa still continue to be victims of discrimination and harmful practices.’ At the time of the drafting and adoption of the Maputo Protocol, the UN Convention on the Elimination of all forms of Discrimination against Women (CEDAW) enjoyed near universal ratification in Africa. In terms of overlap and peculiarity the following can be noted:
Although the Maputo Protocol has been drafted as an addition to the African Charter and not as a response to CEDAW, the Protocol compared to CEDAW speaks in a clearer voice about issues of particular concern to African women, locates CEDAW in African reality.
Specifically, The protocol expands the scope of protected rights beyond those provided for under CEDAW and it deals with rights already covered in CEDAW with greater specificity. Importantly, it emphasized the private sphere as an important domain in which rights are to be realized and it underlines the need for positive action.
The Protocol expands the protective scope of women’s rights by addressing numerous issues of particular concern to African women that were not included in CEDAW.
The protocol is the first treaty to provide for the right to circumscribed ‘medical abortion’ i.e. Art 14(2) requiring states to authorize ‘abortion in cases of sexual assault, rape, incest and where a continued pregnancy threatens the health of the mother or the life of fetus’.
It is also the first binding treaty to provide for the right of women to be protected against HIV infection and to know the HIV status of her sexual partner.
The protocol also places an obligation on States parties to encourage monogamy.
The Protocol also requires domestic violence legislation and the criminalization of rape in marriage. This is to target violence against women in the private sphere.
Compared to CEDAW, the protocol provides in greater detail for the protection of women in conflict and reiterates the need to accord women refugees protection under international law.
Under the Protocol, the girl child may, in particular, not be recruited or take a direct part in hostilities. State parties to the Protocol must set the minimum age of marriage at 18 and all marriages must be recorded in writing.
It provides clarification in positive African cultural values as those based on principles of equality, peace, freedom, dignity, justice, solidarity and democracy.
It also spells out the scope of socio-economic rights in greater detail than CEDAW, which limited some socio-economic rights to rural women. Under the protocol, women have a right to food security and adequate housing. In addition, the state parties must reduce military spending in favour of social spending particularly on women.
The precarious position of groups of women that have been rendered particularly vulnerable due to the loss of spouse, old age, disability and poverty also receive attention in the protocol.
The protocol emphasizes the need to adopt corrective and specific positive ‘affirmative’ action. While CEDAW contains a generic provision allowing for temporary measures aimed at accelerating de facto equality between men and women, the protocol reiterates the need for positive measures by locating them in different contexts e.g electoral quotas. Positive action is also specifically required with regard to discrimination in law, illiteracy and education.
Protocol to the African Commission on Human and Peoples’ Rights on the establishment of the African Court on Human and Peoples’ Rights
It establishes the African Court on Human and Peoples’ Rights with the aim of strengthening the African human rights system. It is has a wide ranging jurisdiction which: extends to ‘all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned’ (Art. 3 of the Protocol to the Charter).
The Court has the competence to deliver advisory opinions at the request of any Member State of the AU, the AU or any of its organs, or any African organization recognized by the AU (Art. 4). The Court may receive complaints either from the Commission, from the State party which had lodged a complaint to the Commission, or from the State party against which the complaint has been lodged at the Commission; the State party whose citizen is a victim of human rights violation and African intergovernmental organizations also have access to the Court (Art. 5). Individuals or nongovernmental organizations shall have direct access to the Court only exceptionally, when the defending State has made a specific declaration to that effect, as provided for in Article 34(6) and Article 5(3) of the Protocol. The provisions of the Protocol on enforcement of judgments represent a clear step forward in comparison to the existing situation as regards the decisions of the African Commission: the AU’s Executive Council, composed of the Foreign Affairs Ministers of the AU Member States or their delegates (still called the Council of Ministers in the Protocol) ‘shall also be notified of the judgment and shall monitor its execution on behalf of the Assembly’ (Art. 29(2)). This will significantly raise the political cost for a State refusing to comply with the judgment delivered in a case to which it is a party.
In its first communication in the Matter of Michelot Yogogombaye v. Republic of Senegal (Appl. No. 001/2008), the Court concluded it had no jurisdiction to hear the case: the applicant requested a suspension of the proceedings brought in Senegal against Hissène Habré, the former Head of State of Chad, but the Court dismissed the petition because Senegal had not entered a declaration accepting the Court’s jurisdiction to hear individual petitions as required under Article 34(6) of the 1998 Protocol establishing the Court.
INTERNATIONAL HUMAN RIGHTS SYSTEM
The United Nations Human Rights Treaties System
This is the system consisting of expert bodies set up under the core UN human rights treaties. Seven such bodies are currently in operation. These are the Committee on the Elimination of Racial Discrimination (CERD), which has been functioning since 1969, the Human Rights Committee (CCPR) (1976), the Committee on Economic, Social and Cultural Rights (CESCR) (1987), the Committee on the Elimination of Discrimination Against Women (CEDAW) (1981), the Committee Against Torture (CAT) (1987), the Committee on the Rights of the Child (CRC)
(1990), and the Committee on Migrant Workers (CMW) (2003). All but one of these expert bodies have their role and composition defined in the respective treaties with which they supervise compliance. The exception is the Committee on Economic, Social and Cultural Rights (CESCR), which was established by Resolution 1985/17 of the Economic and Social Council (Ecosoc) and which was modelled on the Human Rights Committee created by the International Covenant on Civil and Political Rights (ICCPR).
The main competence of these expert bodies is to receive State reports about the implementation of the human rights treaties they monitor, and to adopt Concluding Observations on the basis of this information. In addition, most of the human rights treaty bodies (as they are generally referred to) may receive individual communications from victims of violations of the said treaties. In general, the other powers of these bodies play a comparatively much minor or even insignificant role. These are the powers to receive inter-State communications (a possibility which has been dormant since the origins); to make enquiries into certain situations, which may comprise a visit on the territory
of the State concerned with the latter’s consent; or, in the case of the Subcommittee on Prevention established under the 2002 Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (which entered into force on 22 June 2006), to visit places where persons are detained and to make recommendations concerning the protection of these persons against torture and other cruel, inhuman or degrading treatment or punishment, as well as to support the national preventive mechanisms which the States parties to the said Protocol have to set up. In addition, under the 2006 International Convention for the Protection of All Persons from Enforced Disappearance, the Committee on Enforced Disappearances may decide urgently to bring the matter to the attention of the General Assembly of the United Nations, if it receives information which appears to contain well-founded indications that enforced disappearance is being practised on a widespread or systematic basis in the territory under the jurisdiction of a State party (Art. 34).
1. State Reporting
a) The objectives of State reporting
All the UN human rights treaties provide that States parties submit reports about the measures adopted in order to implement their treaty obligations. The initial reports are to be submitted within one or two years from the entry into force of the treaty for the State concerned, and thereafter, generally, every four or five years. The State reports
are to ‘indicate the factors and difficulties, if any, affecting the implementation’ of the treaty concerned. The identification of such obstacles may guide the UN specialized agencies when they can assist States overcoming them.
The objectives of the reporting process were summarized in: Harmonized Guidelines on Reporting under the International Human Rights Treaties, including Guidelines on a Common Core Document and treaty-specific targeted documents (HRI/MC/2005/3, 1 June 2005):
“1. States parties should see the process of preparing their reports for the treaty bodies not only as the fulfilment of an international obligation, but also as an opportunity to take stock of the state of human rights protection within their jurisdiction for the purpose of policy planning and implementation. The report preparation process offers an occasion for each State party to:
(a) Conduct a comprehensive review of the measures it has taken to harmonize national law and
policy with the provisions of the relevant international human rights treaties to which it is a
party;
(b) Monitor progress made in promoting the enjoyment of the rights set forth in the treaties in
the context of the promotion of human rights in general;
(c) Identify problems and shortcomings in its approach to the implementation of the treaties;
(d) Assess future needs and goals for more effective implementation of the treaties; and
(e) Plan and develop appropriate policies to achieve these goals.
2. The reporting process should encourage and facilitate, at the national level, popular participation, public scrutiny of government policies and constructive engagement with civil society conducted in a spirit of cooperation and mutual respect, with the aim of advancing the enjoyment by all of the rights protected by the relevant convention.
3. At the international level, the reporting process creates a framework for constructive dialogue between States and the treaty bodies. The treaty bodies, in providing these guidelines, wish to emphasize their supportive role in fostering effective implementation of the international human rights instruments and in encouraging international cooperation in the promotion and protection of human rights in general.”
In addition to the objectives listed above, State reports should serve as an opportunity to review any reservations or declarations made by the State upon ratification, since States are requested to justify the maintenance of such reservations or declarations. Moreover, where there exists an individual communications mechanism before the
expert committee concerned, the State report should provide an opportunity for the State to explain which follow-up was given to any views adopted by the committee on the basis of such communications (on the follow-up to individual communications).
b) The role of non-governmental organizations
Non-governmental organizations play a key role in the reporting process, by providing the Committee members with first-hand information, in the form of ‘shadow reports’ which are now often as well or even better documented than the official State report. The system thus becomes increasingly triangular, shifting from a dialogue between the Committee members and the State’s delegation to an exchange during which the Committee members confront the State with information obtained from other sources that may contradict the presentation made in the official report.
2. Individual Communications
The Human Rights Committee (HRC), the Committee on the Elimination of Racial Discrimination (CERD), the Committee against Torture (CAT), the Committee on the Elimination of Discrimination against Women (CEDAW), and the Committee on Migrant Workers (CMW), all may receive communications from individuals claiming
to be victims of violations under the respective treaties which they monitor. Such a competence has also been attributed to the Committee on Economic, Social and Cultural Rights (CESCR), under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.
The admissibility of such communications, however, is subject to a number of conditions: the violation must not have taken place prior to the entry into force of the treaty concerned as regards the State against which the communication is addressed; the author of the communication must be a ‘victim’ of the violation he/she denounces; he/she must have exhausted the local remedies available; the communication may not be anonymous, nor may it constitute an abuse of the right to communication; the same matter must not have been examined under another
procedure of international investigation or settlement or, at least– in the more flexible wording of the Optional Protocol to the International Covenant on Civil and Political Rights– it must not be under examination under such procedure at the time of the communication.
a) The ‘ratione temporis’ rule
Claims may be brought against States parties to human rights treaties only when they relate to violations alleged to have occurred after the entry into force of the treaty on the basis of which the communication is filed (for instance, the Optional Protocol to the International Covenant on Civil and Political Rights) as regards the defending
State. This does not exclude the possibility of human rights treaty bodies examining ‘continuing violations’, i.e. violations which, while they have begun prior to the entry into force of the treaty on which the complaint is based, have continued after that date. Article 2(f) of the Optional Protocol to the Convention on the Rights of Persons
with Disabilities makes this doctrine explicit, by providing that the Committee on the Rights of Persons with Disabilities shall consider a communication inadmissible when ‘The facts that are the subject of the communication occurred prior to the entry into force of the present Protocol for the State Party concerned unless those facts continued after that date.’
b) The ‘victim’ requirement
In principle, individual communications must be presented to the human rights treaty expert bodies by those who have been directly affected by the violations complained of. Challenges in the abstract to the laws or practices of a State, by individuals or groups which pretend to act in the public interest by filing an actio popularis, are not
allowed. The most recent instruments, however, have taken into account the difficulties which certain individual victims may be facing due to this requirement, if it is interpreted too strictly. For example, Article 2 of the
1999 Optional Protocol to the Convention on the Elimination of Discrimination against Women, which entered into force on 22 December 2000, provides that “Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the rights set forth in the Convention by that State Party. Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent.”
There are two important exceptions to the requirement that communications may only be filed by the ‘direct’ victims, however. First, where the direct victim is unable to act, the complaint may be filed by a person who has sufficiently close links to him/her, so that it may be presumed that the wishes of the victim are adequately taken into account and that, if he/she could have done so, the victim would have consented to being represented. This will allow the relatives of the victim, in particular, to represent the latter, by filing a claim on their behalf. Second, where the violation has not occured yet but may be considered both imminent and sufficiently certain– where the violation would be the foreseeable and necessary consequence of the challenged measure, in the words of the Human Rights Committee– a communication may be filed in anticipation of the violation which is about to occur.
c) The exhaustion of local remedies
Complainants filing individual communications before human rights treaty bodies are required to demonstrate that they have unsuccessfully sought remedies before the national authorities, prior to filing their claim at international level. The requirement is that they invoke, at least in substance, the violation of the rights recognized in the international human rights treaty concerned, and that they thus provide the national authorities with an opportunity to address the claim before it is presented to a human rights treaty expert body. Only remedies which have a reasonable chance of success, however, must be exhausted. In addition, remedies which are not effective, because
they will not provide a protection before irreparable harm is caused, do not have to be exercised. It has also been recognized that remedies which are inaccessible in practice because of the absence of legal aid do not have to be exhausted. Although the individual filing a communication should have exhausted all available domestic remedies, Article 5, para. 2(b), of the Optional Protocol to the ICCPR adds that ‘This shall not be the rule where the application of the remedies is unreasonably prolonged.’
d) Non-duplication with other international procedures
There exists a notable difference of wording between the (First) Optional Protocol to the International Covenant on Civil and Political Rights and other international human rights instruments as regards the requirement that, in order for a communication to be admissible, it must not have been examined already under another international procedure. Article 5, para. 2(a), of the OP-ICCPR provides that ‘The Committee shall not consider any communication from an individual unless it has ascertained that:(a) The same matter is not being examined under another procedure of international investigation or settlement.’ In contrast, the other UN human rights treaties that refer to this condition provide that the expert bodies they establish shall not consider individual communications
unless they have ascertained that ‘the same matter has not been, and is not being examined under another procedure of international investigation or settlement’.
3 THE IMPLEMENTATION OF FINDINGS OF UN HUMAN RIGHTS TREATY BODIES
The UN human rights treaty bodies adopt concluding observations, views (on the basis of individual communications), and general comments (or general recommendations). Even where civil society organizations and the public authorities, including the judiciary, have a good knowledge of the standards contained in the treaties to which the State concerned is a party, the findings of the treaty bodies themselves are often ignored. These findings, however, do serve to clarify the normative content of the requirements stipulated in the treaties; and a better understanding of these requirements would greatly facilitate an improved compliance, in the future, with those international obligations of the State. States may thus be expected to translate the findings concerning them into their national language; to disseminate these findings widely; to organize a public debate on the implementation measures which they call for; and, on that basis, to adopt the measures required to ensure compliance.
The United Nations Charter-Based Monitoring of Human Rights
The United Nations Charter-based system of human rights monitoring is grounded on the UN Charter itself. Acting under Article 68 of the UN Charter, the Economic and Social Council (Ecosoc) had established the Commission on Human Rights as an intergovernmental body initially composed of eighteen Member States. Despite major achievements, the system thus developed was considered to be over politicized, and to lack credibility due, in
particular, to the selective approach to the human rights records of governments. In its place, it was decided in 2005 to establish a Human Rights Council, as a subsidiary organ of the UN General Assembly, whereas the former Commission on Human Rights was one of a number of subsidiary bodies of the Ecosoc.
One important difference between the Human Rights Council and the former Commission on Human Rights resides in the mechanism for the election of its members. The Ecosoc formerly elected the members of the Commission on Human Rights. In contrast, the members of the Human Rights Council are elected by the 192 members of the General Assembly ‘directly and individually’ by secret ballot, although in order to ensure equitable geographical
representation, each group of States (divided along geographical lines into groups that have remained unchanged since 1963) is allocated a predefined number of seats.
The council has the three tools at its disposal to discharge its mandate: The complaints mechanism, the universal periodic review and the special procedures.
The Complaints Mechanism
When the Human Rights Council was established, it was decided that its mandate would include addressing ‘situations of violations of human rights, including gross and systematic violations, and make recommendations thereon’. The idea was to build on the procedures developed over time by the Commission on Human Rights. A complaint procedure was therefore established to address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances.
The Universal Periodic Review
Its main task would be to evaluate the fulfilment by all States of all their human rights obligations. This would give concrete expression to the principle that human rights are universal and indivisible. Equal attention is have to be given to civil, political, economic, social and cultural rights. It is equipped to give technical assistance to States and policy advice to States and United Nations bodies alike. Under the system, every Member State comes up for review on a periodic basis.
The peer review mechanism complements but does not replace reporting procedures under human rights treaties. The latter arise from legal commitments and involve close scrutiny of law, regulations and practice with regard to specific provisions of those treaties by independent expert panels. They result in specific and authoritative recommendations for action. Peer review is a process whereby States voluntarily enter into discussion regarding human rights issues in their respective countries, and would be based on the obligations and responsibilities to promote and protect those rights arising under the Charter and as given expression in the Universal Declaration of Human Rights. Implementation of findings is developed as a cooperative venture, with assistance given to States in developing their capacities. Crucial to peer review is the notion of universal scrutiny, that is, that the performance of all Member States in regard to all human rights commitments should be subject to assessment by other States.
The basis of the review is:
(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.
In addition to the above and given the complementary and mutually interrelated nature of international human rights law and international humanitarian law, the review shall take into account applicable international humanitarian law.
Principles
The universal periodic review should:
(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;
(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-politicized 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 organizations and national human rights institutions.
The objectives of the review are:
(a) The improvement of the human rights situation on the ground;
(b) The fulfilment of the State’s human rights obligations and commitments and assessment
of positive developments and challenges faced by the State;
(c) The enhancement of the State’s capacity and of technical assistance, in consultation
with, and with the consent of, the State concerned;
(d) The sharing of best practice among States and other stakeholders;
(e) Support for cooperation in the promotion and protection of human rights;
(f) The encouragement of full cooperation and engagement with the Council, other human
rights bodies and the Office of the United Nations High Commissioner for Human Rights.
Periodicity
The periodicity of the review for the first cycle will be of four years.
Report content
The report prepared by States for the universal periodic review should contain the following
information:
A. Description of the methodology and the broad consultation process followed for the
preparation of information provided under the universal periodic review;
B. Background of the country under review and framework, particularly normative and institutional framework, for the promotion and protection of human rights: constitution, legislation, policy measures, national jurisprudence, human rights infrastructure including national human rights institutions and scope of international obligations identified in the ‘basis of review’;
C. Promotion and protection of human rights on the ground: implementation of international human rights obligations identified in the ‘basis of review’ , national legislation and voluntary commitments, national human rights institutions activities, public awareness of human rights, cooperation with human rights mechanisms …;
D. Identification of achievements, best practices, challenges and constraints;
E. Key national priorities, initiatives and commitments that the State concerned intends to undertake to overcome those challenges and constraints and improve human rights situations on the ground;
F. Expectations of the State concerned in terms of capacity-building and requests, if any, for technical assistance;
G. Presentation by the State concerned of the follow-up to the previous review.
Process of the review
The documents on which the review would be based are:
(a) Information prepared by the State concerned, which can take the form of a national Report. States are encouraged to prepare the information through a broad consultation process at the national level with all relevant stakeholders;
(b) Additionally a compilation prepared by the Office of the High Commissioner for Human Rights of the information contained in the reports of treaty bodies, special procedures, including observations and comments by the State concerned, and other relevant official United Nations documents.
(c) Additional, credible and reliable information provided by other relevant stakeholders to the universal periodic review which should also be taken into consideration by the Council in the review.
Content of the outcome
The universal periodic review is a cooperative mechanism. Its outcome may include, inter alia:
(a) An assessment undertaken in an objective and transparent manner of the human rights situation in the country under review, including positive developments and the challenges faced by the country;
(b) Sharing of best practices;
(c) An emphasis on enhancing cooperation for the promotion and protection of human rights;
(d) The provision of technical assistance and capacity-building in consultation with, and with the consent of, the country concerned;
(e) Voluntary commitments and pledges made by the country under review.
Follow-up to the review
The outcome of the universal periodic review, as a cooperative mechanism, should be implemented primarily by the State concerned and, as appropriate, by other relevant stakeholders.
The subsequent review should focus, inter alia, on the implementation of the preceding outcome.
The Council should have a standing item on its agenda devoted to the universal periodic review.
The international community will assist in implementing the recommendations and conclusions regarding capacity-building and technical assistance, in consultation with, and with the consent of, the country concerned.
In considering the outcome of the universal periodic review, the Council will decide if and when any specific follow-up is necessary.
After exhausting all efforts to encourage a State to cooperate with the universal periodic review mechanism, the Council will address, as appropriate, cases of persistent non-cooperation with the mechanism.
3. SPECIAL PROCEDURES
‘Special procedures’ are mechanisms established by the Commission on Human Rights, and now assumed by the Human Rights Council, to address either specific country situations or thematic issues in all parts of the world.
Special procedures are either an individual (called ‘Special Rapporteur’, ‘Special Representative of the Secretary-General’, ‘Representative of the Secretary-General’ or ‘Independent Expert’) or a working group usually composed of five members (one from each region). The mandate-holders of the Human Rights Council are unpaid individual
experts who act in their personal capacity, and who contribute both to developing the understanding of human rights norms and to protecting human rights by using the various tools at their disposal. Depending on which special procedure is concerned, these tools include the preparation of reports to the Human Rights Council or to the Third
Committee of the General Assembly; addressing communications to States, in the form either of letters of allegations or urgent appeals; and carrying out country missions, with the consent of the State concerned, in order to assess the situation of human rights there.
Thematic Special Procedures are mandated by the HRC to investigate the situation of human rights in all parts of the world, irrespective of whether a particular government is a party to any of the relevant human rights treaties. This requires them to take the measures necessary to monitor and respond quickly to allegations of human rights violations against individuals or groups, either globally or in a specific country or territory, and to report on their activities. In the case of country mandates, mandate-holders are called upon to take full account of all human rights (civil, cultural, economic, political and social) unless directed otherwise. In carrying out
their activities, mandate holders are accountable to the Council.
The principal functions of Special Procedures include to:
• analyze the relevant thematic issue or country situation, including undertaking on-site missions,;
• advise on the measures which should be taken by the Government(s) concerned and other relevant actors;
• alert United Nations organs and agencies, in particular, the HRC, and the international community
in general to the need to address specific situations and issues. In this regard they have a role in providing ‘early warning’ and encouraging preventive measures;
• advocate on behalf of the victims of violations through measures such as requesting urgent action by relevant States and calling upon Governments to respond to specific allegations of human rights violations and provide redress;
• activate and mobilize the international and national communities, and the HRC to address particular human rights issues and to encourage cooperation among Governments, civil society and inter-governmental organizations.
The only powers of the special procedures are of a persuasive nature: while they may put pressure on governments by making public statements or in their submissions to the Human Rights Council or the Third Committee of the General Assembly, they are ultimately dependent on the willingness of States to co-operate with them.
The tools used by the special procedures of the Human Rights Council
These are communications sent to countries; country missions; and annual reports submitted to the Human Rights
Council and, for some mandate-holders, to the General Assembly, where they are then presented before the Third Committee.
a) Communications
When mandate-holders receive credible information about human rights violations or about the risk of violations, they may correspond with the government concerned to seek clarification about such allegations. This takes the form of a letter addressed to the State’s permanent mission to the UN in Geneva, through the Office of the High Commissioner for Human Rights that supports the work of the special procedures.
In principle, mandate-holders do not disclose from whom the information was received, which constitutes a protection from retaliation or reprisals. Victims of alleged violations or individuals or organizations having a direct knowledge of the alleged violations may correspond with the mandate-holder concerned, without there being an obligation to exhaust any domestic remedies available: the communications procedure is not a quasi-judicial procedure, rather it is a means to provide immediate protection to the victims, by drawing the attention of the government to certain situations.
Such communications may take the form either of urgent appeals or of letters of allegation. Urgent appeals are made ‘in cases where the alleged violations are time sensitive in terms of involving loss of life, life-threatening situations or either imminent or ongoing damage of a very grave nature to victims that cannot be addressed in a timely manner by the procedure under letters of allegation’. Letters of allegation are used to communicate information about violations that are said to have already occurred and whose impact on the alleged victim can no longer be changed.
(b) Country visits
Mandate-holders conduct official missions in order to examine the situation of human rights (as related to their mandate) at national level. Such missions request the consent of the State in which they take place, and they lead to a report being prepared on the country, which is presented to the Human Rights Council after the government concerned has been provided an opportunity to comment. Mandate-holders typically ask to be invited to the country on official mission, although occasionally a government may take the initiative of inviting a mandate-holder to visit the country.
(c) Annual reports
Probably the most visible contribution of special procedures at international level are the reports they submit, at least on an annual basis, to the Human Rights Council, and– for some, but not all special procedures– to the General Assembly (Third Committee). The annual reports contain an overview of the activities conducted by the mandate-holder in fulfillment of his/her mandate, and a set of recommendations addressed to governments or, occasionally, to other actors, including to the UN agencies.
