UNIVERSAL PERIODIC REVIEW: A NEW MECHANISM IN THE HUMAN RIGHTS TOOLBOX

Identifier: 
07GENEVA2541

C O N F I D E N T I A L GENEVA 002541

SIPDIS

SIPDIS

STATE FOR IO/RHS, DRL/MLGA, L/HRR

E.O. 12958: DECL: 08/31/2016
TAGS: PHUM, UNHRC-1
SUBJECT: UNIVERSAL PERIODIC REVIEW: A NEW MECHANISM IN THE
HUMAN RIGHTS TOOLBOX

REF: GENEVA 02373

Classified By: Ambassador Warren W. Tichenor. Reasons 1.4 (b/d).

1. (C) SUMMARY: A new human rights mechanism is scheduled to
get underway in April 2008, with the human rights behavior of
a first tranche of 16 countries to be reviewed under the
Universal Periodic Review (UPR) process. Over the next four
years, all UN member states are to undergo such review in the
UN Human Rights Council in Geneva, with the U.S. slated to do
so in 2010. The UPR mechanism is untested, and expectations
vary widely about its potential. A number of Western and
Latin American governments and NGOs, inter alia, hope it will
prove at least a moderately successful tool to address
countries' records and, perhaps, lead to improvements. Yet
concerns run high that it could serve as an excuse to end
country mandates and country-specific resolutions and to
undercut human rights work in the General Assembly's Third
Committee in New York. Although the Council has adopted UPR
guidelines, many modalities remain unclear, and efforts
continue to define those modalities in ways that could narrow
the UPR's scope. While UPR is sure to evolve over time, the
first tranche of reviews will set important precedents.
While none of the countries with the most serious human
rights problems is slated for review in 2008, we believe
that, given the precedent-setting nature of the early
sessions, it is not too early to begin considering whether
and how to use the UPR to pursue USG human rights goals. END
SUMMARY.

BACKGROUND
----------

2. (SBU) The UPR was among the key innovations in the
creation of the Human Rights Council, which formally replaced
the Commission on Human Rights in 2006. By establishing a
mechanism that regularly reviews all UN member states, UPR
was posited as advancing the principles of universality and
transparency. The UPR's basic mandate or blueprint was
adopted at the June 2007 Council session, as part of the
Council's overall institution-building process, and
guidelines for preparing national reports were adopted at the
September 2007 session (reftel). The September session also
featured a lottery that established the order in which
countries are to be reviewed, covering all participating
states over the next four years. Although Israel's selection
for early review and the absence of any serious human rights
violators among those in the first tranches for review raised
questions about whether the selection process had been done
fairly, the lottery appeared to have been conducted without
manipulation. The Council is to review 16 countries three
times a year using a four-year cycle. The first tranche of
16 countries is to be reviewed April 7-18, 2008, followed by
a second group scheduled for May 5-16 and a third group
December 1-12. The United States will be reviewed at the end
of 2010. (Para 10 lists the order of reviews for 2008.)

UPR MODALITIES
--------------

3. (U) The process consists of six steps, although much
remains to be worked out:

PREPARING DOCUMENTS: The initial stage involves preparing
documents to form the basis for review. The country under
review may (although it does not have to) prepare a national
human rights report (20-page maximum). The Office of the
High Commissioner for Human Rights (OHCHR) compiles a summary
(10-page maximum) of information from treaty body reports,
special procedures, and other official UN documents. OHCHR
also prepares a summary (10-page maximum) of information from
other stakeholders, including NGOs. These documents are to
be finalized six weeks before the relevant UPR session for
translation into all six official UN languages.

CHOOSING A "TROIKA": Lots are drawn among the 47 Council
members to choose a "troika" of three rapporteurs to
facilitate each country review, with a complicated formula
involving regional group membership to encourage fair
distribution of workload. The country under review may
request the substitution of one of the troika member
countries, and a country eligible to become a troika member
may opt out of any troika. This could result in some Council
members serving on several troikas while others serve on
none. According to the guidelines, each troika, with OHCHR
support, may prepare an issues paper or a list of questions
to be given in advance to the country under review and be
used during the UPR's interactive portion. A troika country
has leeway in the person it chooses as its rapporteur, and
could pick, for instance, a government official, its
Geneva-based ambassador, or even an independent academic.

REVIEWING THE COUNTRY: A working group made up of the entire
Council membership and facilitated by the troika conducts a
three-hour review. After the country makes its presentation,
Council members and observer states hold an interactive
dialogue. NGOs cannot participate in the interactive
dialogue but may observe the review session. Deliberations
in Council working groups are not webcast like plenary
sessions.

PREPARING A REPORT: Within "a reasonable time frame," the
troika prepares a report summarizing the proceedings and any
recommendations/conclusions and voluntary commitments. The
country under review may discuss the draft, including
commenting on the recommendations, with the troika before a
final report is produced. The report should reflect the
views of the country concerned as well as other views.

PRESENTING THE REPORT: The report or "final outcome"
document is then presented during a one-hour segment of a
regular Council session for formal adoption. The report
could take many forms, from a pro forma summary of issues
raised to a more detailed list of conclusions and
recommendations, as is found in the reports of human rights
treaty bodies. The report will have to distinguish between
those recommendations that are "accepted" by the country
under review and those that are not. The troika, concerned
country, Council members and observer states as well as NGOs
may speak during this stage.

REVIEWING IMPLEMENTATION: The current mandate contemplates
Council review of implementation, focusing on progress in
fulfilling recommendations as well as other developments, but
offers little detail. Some EU and Latin American Group
(GRULAC) countries favor annual follow-up, while others say
this should occur only every four years as part of the
regular cycle. OHCHR is to create a voluntary fund to help
less developed countries implement UPR recommendations.

DELAYS AND UNCERTAINTIES
------------------------

4. (SBU) As the guidelines for national reports were
undergoing the final stages of consideration at the September
Council session, a number of countries sought to delay the
start of the process from an original February 2008 start
date on the grounds that this would allow insufficient
preparation time for countries chosen for the first tranche.
The EU and others were concerned that this was a ploy to
stymie the UPR process. A deal was eventually struck to
allow an April start date on condition that no country be
allowed to delay its review. In response to less developed
countries' complaints that they needed assistance to prepare
for their reviews, the Council also adopted a resolution on
the creation of an additional voluntary fund to assist in
preparing a country's national report.

5. (SBU) More recently, on November 26, the African Group led

a successful effort to postpone plans to select troikas for
the first tranche of reviews. Proponents of a postponement
argued that too many details of the troikas' responsibilities
remained to be worked out, so that selecting troika members
was premature; they also posited that troikas should limit
themselves to examining the formal inputs from the government
under review, rather than take the initiative to examine
human rights issues on their own. An obviously peeved HRC
President Doru Costea, supported by several Western Group and
GRULAC delegations, urged that the postponement be as brief
as possible and said that details of the troikas' duties
could be worked out during the first set of reviews.
Privately, they noted that the postponement aimed either to
delay the start of UPR or to limit the ability of the troikas
to address human rights problems seriously.

GETTING READY FOR THE UPR
-------------------------

6. (SBU) Of the 16 countries in the UPR's first tranche,
representatives of several have told us that their
governments have already begun planning for their national
reports, with Brazil adding that it was treating UPR as a
treaty body reporting exercise. Delegates of most other
first-tranche countries expressed concern to us that their
governments had yet to focus on taking the necessary steps,
including broad national consultations, to prepare their
national reports in the relatively short period before the
mid-February due date and under an extremely tight Council
schedule.

7. (SBU) Many NGOs have been enthusiastic about establishment
of UPR, seeing it as an important new mechanism to highlight
their concerns about countries' human rights records. Human
Rights Watch (HRW) officials told us that large NGOs like
theirs would be well placed to provide extensive input on
countries, but that they were also working to inform smaller
NGOs, including those focused on particular countries or
issue areas, of the opportunity UPR presents.

8. (SBU) That said, many NGOs are now feeling pressed to
provide input for the initial tranche. Several NGO
representatives, including from HRW, Amnesty International,
and the International Commission of Jurists, told us they
were scrambling to put together and submit reports (five-page
maximum) in time, adding that they would not submit reports
on all countries under initial review and expected that
several countries per tranche would be without such input.

9. (SBU) The OHCHR is to have a major role in the UPR
process, and it requested funding for 17 new staff positions
to carry out its new responsibilities. Prospects for
receiving such funding remain uncertain, and OHCHR has urged
USG support for it, with Deputy High Commissioner Kang making
that point most recently to the DCM in a meeting on other
subjects. In the interim, the new three-person UPR Unit is
pulling staff from elsewhere in OHCHR, although as Kang noted
in a November 29 meeting with Western diplomats, this limits
other important areas of OHCHR work and is unsustainable over
the long term.

LISTING OF SCHEDULED REVIEWS IN 2008
------------------------------------

10. (U) First UPR session (scheduled for April 7-18):
Bahrain, Ecuador, Tunisia, Morocco, Indonesia, Finland, UK,
India, Brazil, Philippines, Algeria, Poland, Netherlands,
South Africa, Czech Republic, Argentina

Second UPR session (scheduled for May 5-16): Gabon, Ghana,
Peru, Guatemala, Benin, Republic of Korea, Switzerland,
Pakistan, Zambia, Japan, Ukraine, Sri Lanka, France, Tonga,
Romania, Mali

Third UPR session (scheduled for December 1-12): Botswana,

Bahamas, Burundi, Luxembourg, Barbados, Montenegro, UAE,
Israel, Liechtenstein, Serbia, Turkmenistan, Burkina Faso,
Cape Verde, Colombia, Uzbekistan, Tuvalu

COMMENT
-------

11. (C) No one is certain whether UPR will prove an effective
mechanism. There are many details yet to be worked out for
UPR's implementation, as well as numerous broader unanswered
questions. UPR could prove harmful if it ends up diverting
OHCHR resources that would otherwise be used effectively to
conduct real human rights work, including fieldwork. It
could also prove damaging if it becomes an excuse, as some
countries already are trying to engineer, to eliminate
country mandates, country-specific resolutions, or human
rights work in Third Committee. Some countries, including
those with poor human rights records, will no doubt seek to
make UPR a formalistic and empty process that fails to
address serious human rights concerns and that they can then
trumpet as a stamp of approval. On the other hand, some
governments and many NGOs are looking to use the process,
including its interactive session, to air their concerns
about major problems among serious human rights violators and
use the process as a hook to publicize those concerns more
broadly. A country's obvious attempts to stonewall or be
otherwise uncooperative might even serve as the basis for a
new country-specific resolution. At minimum, countries
willing to improve their human rights record could benefit
from a process that could spotlight problems, highlight best
practices and form the basis for assistance in making
improvements.

12. (C) Although many factors will bear on UPR's
effectiveness, its initial sessions will surely be seen as
setting precedents, even if informal ones. None of the
countries with the worst human rights records is slated for
review in 2008. Nonetheless, given the importance of those
sessions as precedent-setters, they will warrant our close
attention, and it is not too early to give thought to
considering whether and how to use the UPR to advance USG
human rights goals.

TICHENOR