China's Human Rights

On March 15, 2006, the United Nations General Assembly adopted Resolution 60/251 to create a 47-member Human Rights Council (the Council) in replacement of a 60-year-old Commission on Human Rights (the Commission). The Universal Periodic Review (UPR) is an important mechanism and power that the resolution imparted to the Council. It ensures that all UN member states are subject to review in their fulfillment of human rights obligations and commitments. Generally, as an institute under guidance of the UN General Assembly to coordinate the UN human rights activities, the Council has undergone considerable changes and development from its predecessor the Commission in its responsibilities, legal framework and executive power. The UPR, which has been activated by the Council, is rightfully a miniature of these changes. The essay will elaborate the basis and characteristics of the mechanism.

The UN General Assembly Resolution 60/251 provides that the Council shall "undertake a universal periodic review, based on objective and reliable information, of the fulfillment 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". It also stipulates that 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 the holding of its first session". These rules are the direct legal basis of the UPR mechanism.

On June 18, 2007, the Council, in its fifth meeting, adopted Resolution 5/1 which was entitled "United Nations Human Rights Council: Institution-Building". The first part of the text specified the basis of the Universal Periodic Review, its principles and objectives, periodicity and order, process and modalities and format and content of the outcome and follow-up of the review.

On September 21, 2007, the Council adopted a schedule to review all 192 UN member states in the first four years of the review mechanism, and listed the dates and order of the 48 countries to be reviewed in 2008.

According to the Council's 5/1 Resolution, the UPR review is based on the Charter of the United Nations, the Universal Declaration of Human Rights, Human rights instruments to which a State is party, and voluntary pledges and commitments made by States, including those undertaken when presenting their candidatures for election to the Human Rights Council. It said that the review shall also take into account applicable international humanitarian law, considering the complementary and mutually interrelated nature of international human rights law and international humanitarian law.

As to the process and modalities of the review, the 5/1Resolution provides that the review will be conducted in a working group, chaired by the President of the Council and composed of the 47 member States of the Council. Each Member State will decide on the composition of its delegation. The working group and the council shall conduct reviews according to the following types of documents: (1) information prepared by the State concerned according to Council guidelines¢⁄, which can take the form of a national report or refers to any other information considered relevant by the State concerned. Written presentations will not exceed 20 pages. States are encouraged to prepare the information through a broad consultation process at the national level with all relevant stakeholders; (2) 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, which shall not exceed 10 pages; (3) 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. The Office of the High Commissioner for Human Rights will prepare a summary of such information, which shall not exceed 10 pages.

Both the State's written presentation and the summaries prepared by the Office of the High Commissioner for Human Rights shall be ready six weeks prior to the review by the working group. The duration of the review will be three hours for each country in the working group. Additional time of up to one hour will be allocated for the consideration of the outcome by the plenary of the Council. The final outcome will be submitted to the plenary session of the Council.

Before the establishment of the Council, the UN human rights supervision and monitoring took two forms: (a) supervision based on UN human rights treaties, (b) and the country-specific special procedures based on the Commission.

The treaty-based monitoring referred to the special mechanism established on the basis of the treaties. There are six treaty-based mechanisms or bodies within the UN, namely, The Committee against Torture (CAT), the Committee on Economic, Social and Cultural Rights (CESCR), the Committee on the Elimination of Racial Discrimination (CERD), the Committee on the Elimination of Discrimination against Women (CEDAW), the Committee on the Rights of the Child (CRC) and the Human Rights Committee (HRC). In the above-mentioned mechanisms, committees of independent experts monitor implementation of the core international human rights treaties in the signatory States. The monitoring procedures under these mechanisms include reports prepared by the signatory States, member states' complaints and individual appeal. The treaty-based bodies initiate dialogues between relevant countries to help improve and enhance the implementation of these treaties. These monitoring instruments, however, are different from international judiciary or arbitration measures in that they are only suggestions. Presentations submitted by these bodies are usually not legally binding.

In the 60 years between 1946 and 2006, the Commission on Human Rights has been a charter-based body and a subsidiary of the UN Economic and Social Council (ECOSOC). In its first 20 years, it had no rights to directly handle any human rights issues in member states, but was only responsible for submitting human rights reports to the Economic and Social Council. Not until the 1960s when the international society underwent remarkable changes and particularly the dismantlement of apartheid in South Africa did the Economic and Social Council imparted some rights and procedures to the human rights commission to directly handle human rights issues of member states, including the 1235 and 1503 procedures. Generally, these procedures were extra-conventional mechanisms established under UN charters but outside the UN human rights treaty system. In principle, they should be applicable to all UN member states, but in reality these mechanisms were not the most effectively applied.

For example, the 1235 Procedure, which was invoked by the Economic and Social Council's Resolution 1235 in 1967, provides that the Commission shall review "the question of the violation of human rights and fundamental freedoms, including policies of racial discrimination and segregation and of apartheid, in all countries, with particular reference to colonial and other dependent countries and territories". However, since the Cold War was over, more than 100 country-specific special procedures invoked by the Commission had been directed at development countries but spared all Western European and Northern American countries. The political conflicts that were born out of the special procedures gradually led the commission to deviate from its path of promoting human rights development, and eventually led to the replacement of the Commission ridden by credit deficit.

Compared with the former two human rights monitoring mechanisms, the universal periodic review of the Council has the following distinctions:

The UPR mechanism ensures that all UN member states are reviewed in terms of their fulfillment of the human rights obligations and promises, as opposed to the partical applications of treaty-based monitoring and the country-specific special procedures. The Council's 5/1 Resolution provides that the review shall "ensure universal coverage and equal treatment of all States" and ensure that the monitoring mechanism an extra-conventional one. It is a systemic betterment and avoids the selectivity and partiality of the human rights commission.

The authoritativeness and equality of the UPR does not entail that it has taken on the judiciary nature of some regional human rights institutions, but its review mechanism is guaranteed with equality in that the legal status of the Council is comparatively higher than any generic treaty bodies and the Human Rights Commission. The Council, similar with the Commission, is a charter-based institution, but it is more authoritative and powerful than the latter as the Council was established under the General Assembly, rather than the Economic and Social Council, under which the Commission was established. Meanwhile, the Council is an official mechanism made of government delegations and not made of individual experts like the treaty bodies. Meanwhile, the 5/1 Resolution provides that the UPR shall be conducted by working groups and take in consideration the differences between individual countries without harming the basis and obligations stipulated in the review. The final outcome of the review shall be approved by the Council, and the member states of the Council shall be among the first to be reviewed during their terms. These rules also help ensure the authoritativeness and equality of the UPR.

Resolution 5/1 highlights that the UPR shall be "a cooperative mechanism based on objective and reliable information and on interactive dialogue". Firstly, it involves interactivity in dialogues. The UPR is an intergovernmental process, United Nations Member-driven and action-oriented. It invites full involvement of the country under review. The interactive dialogue between the country under review and the council will take place within the working groups. The rapporteur shall make issues of focus and in doubt available to the country under review, which could be better prepared for the dialogue. The interactive dialogue ensures the equality and transparency of the review. Secondly, the interaction and cooperation in review objectives. The objective of the review is to improve the human rights situation on the ground and help realize the fulfillment of the State's human rights obligations and commitments. The working groups shall undertake the assessment 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. They should work towards the enhancement of the State's capacity and of the technical assistance. Thirdly, the interaction in the outcome. The UPR invites the full involvement of the State under review in the outcome. Before the adoption of the outcome by the plenary session of the Council, the State concerned should be offered the opportunity to present replies to questions or issues that were not sufficiently addressed during the interactive dialogue. The State concerned and the member States of the Council, as well as observer States, will be given the opportunity to express their views on the outcome of the review before the plenary takes action on it.

These stipulations exemplify the equality and cooperation between the Council and the member states. The UPR upholds the credo of "Help States help themselves" and avoid close-door review or publishing outcomes without consultations with the States concerned. The review brings to full play the role of the States concerned and avoid pointless anger-venting and finger-pointing. It is a rectification of the unsightly phenomena in which the Human Rights Commission used human rights to create political stand-offs and member states poking at each others anger buttons.

The UPR, in its system design, attempts to overcome the shortcomings of the treaty-based bodies and the Commission on Human Rights, but its effect remains to be tested in reality. Problems that co-existed with the treaty-based bodies and Commission, such as delay in submitting reports, resource limitations and overlapped reviews, are likely to surface in the UPR mechanism.

One of the most obvious problems is the huge backlog in state reports due under the various treaties. There is, however, no provision that enables delinquent states to be censured, other than by committees noting the delays in their annual reports, and by repeated and so far ineffectual calls on the part of the General Assembly. Over the years, cases of delay have only increased and worsened. Furthermore, even if the reports were handed in by the signatory nations in time, the commissions wouldn't always be able to timely attend to these reports due to time and resource restraint. These symptoms are also likely to occur under the UPR mechanism. According to the current schedule, the duration of the review will be only be three hours for each country in the working group. Should insufficiencies or other problems are found in the report, the working group would have difficulty in balancing review quality and time restraint.

Resolution 5/1 provides that the UPR is supplementary rather than duplicating other human rights organizations. But the review mechanism would need more specific measures to make sure that its work does not overlap with functions of other human rights organizations and at the same time does not add to the burden of the UN member states. In this regard, the Office of the High Commissioner for Human Rights is given the obligations to collect the reports of treaty bodies, special procedures, suggestions and comments of the countries concerned, compilation of related UN formal documents and 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. But the Commissioner's office is not entitled to coordinate the review work of relevant organizations, and nor does such coordination instrument exist in the UN system. Redundancy and resources waste are still likely in this context.

The human rights monitoring within the UN is not of judiciary or quasi-judiciary nature. The review outcome or conclusions are only suggestions that are not legally binding.

According to the review, the outcome of the UPR, as a cooperative mechanism, should be implemented primarily by the State concerned and, as appropriate, by other relevant stakeholders. The subsequent review should focus, among other things, on the implementation of the preceding outcome. 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 UPR mechanism, the Council will address, as appropriate, cases of persistent non-cooperation with the mechanism. We can see that the review mechanism is largely based on self-criticism and self-perfection, and the implementation of the outcome is largely decided by the political will of the countries concerned.

The author is Professor of International Law Department, China Foreign Affairs University.