Allehone Mulugeta Abebe
excerpted from: Allehone Mulugeta Abebe, Of Shaming and Bargaining: African States and the Universal Periodic Review of the United Nations Human Rights Council , 9 Human Rights Law Review1 (2009) (102 footnotes)
The Universal Periodic Review (UPR) is feted as a signature outcome of the human rights reform that resulted in the creation of the United Nations Human Rights Council (the Council). Though not as radical as was originally intended, being the outcome of the delicate task of keeping a balance between the competing objectives of creating a professional and an authoritative human rights organ on the one hand, and of crafting an inter-governmental cooperative platform for human rights review on the other, this new human rights evaluation mechanism may, even so, �redress the shortcomings' of the Commission on Human Rights by rectifying the politics of shaming, selectivity and double-standards that were too often cited as weaknesses of the Commission. Whereas numerous Western countries and civil society organisations criticised the former Commission as a discredited organ in which states sought membership mainly to shield themselves from scrutiny, African states often alluded to the fact that the Commission and its institutional architecture, established 60 years ago when most of them were far from being full-fledged participants of the UN multilateral forum, for far too long encouraged and nurtured a culture of politicisation and selectivity.
The negotiation on Resolution 60/251 of the General Assembly (GA Resolution 60/251), which establishes the Council, unmasks the different visions various stakeholders had regarding the new institution and its mechanisms including the UPR. Delegations disagreed on a host of issues including, among others, the status of the Council within the United Nations, the size and composition of its membership, its geographic representation, the Council's mandate and competence, the role of special procedures, and the nature and extent of the participation and involvement of civil society organisations. States and other stakeholders across the spectrum, however, generally embraced the idea of a peer review mechanism where states' human rights performance will be evaluated by the Council in an objective, universal, genuine and non-selective manner. Soon after the establishment of the Council in 2006, additional negotiations were held to lay down the institutional and procedural framework for this review mechanism.
The narrative on international human rights law and practice is disproportionately informed by the experiences of Western countries and their domestic and regional paradigms. This skewed human rights scholarship and practice risks neglecting the views of others struggling to participate in international human rights institutions and influence their evolution. This article examines the encounters of the African Group, a regional bloc where all Member States of the African Union are represented, with the UN human rights reform process, particularly in the context of the UPR. African states were active participants in the negotiations in New York on GA Resolution 60/251 and in Geneva on what is cumbersomely referred as the �institution-building text� of the Council, Resolution 5/1. By looking at African countries' participation in the two sessions of the UPR Working Group and relevant meetings of the Council over the past two years, this article seeks to highlight some of the challenges this unique inter-governmental human rights monitoring system faces. The initial institutional building process has been vastly influenced by political considerations and has accommodated a minimal professional and expert input. The UPR remains a largely unknown process outside of the UN human rights environment. Thus, a brief description of its features and process is provided. Based on an analysis of African countries' participation in the negotiation and the two sessions of the UPR Working Group, the article also discusses some of the issues that may influence the future of the UPR.
It is still far too early to pass judgement on the efficacy of the Council and its mechanisms. Yet, it has also become evident that the Council's new and innovative modalities confront a working culture that is predictably old-signalling an ominous sign for the efficacy of the new mechanism. Group alliance and factionalism remains a veritable force in the conduct of business in any political organ, and the Council has not so far proven an exception to this rule. African states have deftly manipulated this sub-culture to support and prominently participate in initiatives intended to resist the involvement of individual experts in the UPR, to significantly limit the participation of stakeholders, to monitor the conduct of special procedures and to oppose the Council moves to take country-specific condemnatory decisions. They often stressed the importance not only of the conception of the UPR but also the entire edifice of the Council as a political undertaking, bargaining to ensure an institutional environment to their liking. As the review of African countries under the UPR and their participation in the process indicate, there are signs that the new institution and its working methods are offering opportunities for African states to graduate from being �subjects' of a condemnatory system of oversight mechanism into becoming conscious bargainers and participants in a much more cooperative forum. Whether this will help the Council achieve its lofty goals of creating a genuine, practical and action-oriented peer review mechanism that is relevant to human rights situations on the ground is far from certain.
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In its two years existence, the Council has shown a mixed performance. So have African members and observer states whose role in the Council has become crucial. Several African countries were reviewed during the two sessions of the UPR Working Group. Despite severe resource and technical limitations, and against the fact that participating in the activities of the Council has become a burdensome task, all of them participated in these reviews, accepting an outcome that to a limited extent involves some serious human rights recommendations. The UPR should result in a practical evaluation with the objective of improving human rights conditions on the ground. Anxiety abounds that the UPR may end up being an occasional event in the calendar of what some have referred as �a mutual admiration society� where serious and genuine human rights dialogue will be replaced by back patting and mutual congratulation. Such fear is partly justified as so much is unclear as to what effective tools the Council may avail itself of to follow-up on recommendations that are adopted. Numerous recommendations are formulated in a vague and general manner, making any follow-up process extremely difficult. African countries, like their counterparts in the rest of the developing world, have showed such aversion to country-specific resolutions that the Council is unlikely to adopt them as a follow-up mechanism for the outcome of the UPR. The Council and the OHCHR need to create a tool in which impact assessment of the UPR on countries that have been reviewed can be made. This obviously requires gathering a sufficient amount of data and information, which will be particularly difficult from countries which do not have adequately resource national institutions and mechanisms.
Whereas African countries and members of other regional or other groups such as the OIC, the Arab League and the Group of Latin American and Caribbean countries (GRULAC) have become active in trying to shape and influence the new body, there is a growing unease that such development may not necessarily result in the strengthening of the capacity of the Council to response to human rights situations. It is yet to be seen what positive role the Code of Conduct for Special Procedures for Mandate-holders of the Human Rights Council may have for the work of the Council. Certainly the position expressed by developing countries, including African states, in restricting the role of NGOs and other stakeholders in the UPR is a set back to its inclusiveness, transparency and efficacy.
Major challenges facing the Council, as this article has tried to identify, are related to issues not necessarily amenable to quick fixes and negotiations. The disengagement of powerful countries such as the US from the Council and its activities is an ominous sign for its future. The dominance of group blocs in the Council also remains an enormous challenge. There had been recommendations on the establishment of ad hoc cross-regional structures that promote collaboration among states across regions. So far there have been very few occasions, necessarily involving a meeting of minds, where states have transcended their regional alliance. States will continue to formulate their alliances in ways they consider fit to advance their interest. It has to be noted that the African regional bloc is not a homogenous entity. During the Council's voting on initiatives put forth by the OIC, Ghana and Zambia voted against the proposal. Thus, a much more improved inter-regional dialogue and collaboration should be encouraged.
Even diplomats and government representatives have already observed that some of modalities of the UPR can be improved, though many do not consider it timely to reform or review the rules of procedures yet. In the current context, there is no guarantee that reform initiatives would not be used to further weaken existing procedures. Thus major reform effort should best be left for the review by the Council of its work and functioning that GA Resolution 60/251 requires five years after its establishment. This review should be broad with a view to affording states the opportunity to reflect and consider options to tackle certain issues identified as challenges.
[FN]. Allehone Mulugeta Abebe is First Secretary at the Permanent Mission of Ethiopia in Geneva, Switzerland, and a specialist on human rights and humanitarian affairs