Putting universality into the Universal Periodic Review
The Human Rights Council’s Universal Periodic Review is systematically marginalizing economic and social rights.
As articulated in its founding resolution, the Universal Periodic Review (UPR) of the United Nations Human Rights Council aims to promote the universality, interdependence, indivisibility and interrelatedness of all human rights. This means, as Aoife Hegarty and Hans Fridlund recently pointed out, that the universality in its title is not only geographic, but also thematic. Despite this assertion, there has been a strong sense among various stakeholders involved in the UPR that economic, social, and cultural rights have been comparatively neglected in the Council’s reviews.
Recently, the Center for Economic and Social Rights (CESR) and the Sciences Po Law Clinic undertook a quantitative trends analysis of UPR recommendations to explore whether this concern is well-founded. Specifically, we were interested in finding out how recommendations on economic, social and cultural rights compare to those on civil and political rights, in terms of their quantity and quality. To answer this question, we first identified broad trends in the full dataset of UPR recommendations maintained by the Geneva-based NGO, UPR Info. We then selected a sample of 21 countries that we re-coded to facilitate a more in-depth analysis (a full methodological note is annexed to the research paper).
Flickr/US Mission Generva (Some rights reserved)
A 2015 meeting of the Universal Periodic Review in Geneva, Switzerland.
Overall, it was striking how few recommendations focused specifically on economic, social and cultural rights—less than one in five—compared to 37% on civil and political rights (30% were mixed and 16% neutral). The bulk of these addressed education, labor or health, but the rights to food, housing, water, land received scant attention. Re-coding the sample revealed that almost two thirds of those focused on economic, social and cultural rights suggested only general actions and only 10% encouraged the state to enact laws, policies or programs (compared to one third of those on civil and political rights). Further, only 4% urged states to dedicate resources to the realization of economic, social and cultural rights; this is notable given how critical resources are to fulfilling these rights.
Contrary to a seemingly widely held belief, states under review were no less likely to accept (i.e. commit to taking action on) recommendations that called for more specific action. Generally, recommendations focused on economic, social and cultural rights were widely accepted—between 80-90% of them in most regions. However, countries from the Western Europe and Others Group stand out for their conspicuously low acceptance rate of 53%. There was also significant regional variation in the number of recommendations countries made on economic, social and cultural rights. Less than 10% of recommendations made by countries from the Middle East and North Africa, Eastern Europe, and Western Europe and Others focused on these rights. The lack of attention by the latter has an outsized impact, given that 35% of recommendations overall come from this regional group. This raises important questions about how geopolitical factors influence the prioritization of issues; although these questions were beyond the scope of our research, they certainly merit further exploration.
Consultations with various stakeholders on our preliminary findings revealed some interesting insights. Member states described an “awkwardness” about weighing in on domestic political debates about socio-economic policies, suggesting they were willing to afford a wider margin of discretion than for civil and political rights. The Office of the High Commissioner for Human Rights noted that “substantially” less information on economic, social and cultural rights is submitted by either the state under review or civil society. Civil society groups flagged that the locus of activity for human rights defenders working on economic, social and cultural rights is often more localized, while the international NGOs that advocate with member states most actively in the lead up to the review tend to focus more on civil and political rights.
The concerns of communities whose rights are most negatively impacted by socio-economic policies are not being effectively channeled into the UPR.
These facts suggest that the concerns of communities whose rights are most negatively impacted by socio-economic policies are not being effectively channeled into the UPR. This, in turn, implies that dysfunctions in domestic political debates that lead to marginalization and discrimination are not sufficiently visible. As a result, a problematic synergy seems to have emerged: on the one hand, the voices of those suffering abuses of economic, social and cultural rights are relatively unheard. On the other, member states are not pushed to probe socio-economic policies more forcefully.
Of course, this imbalance is not unique to the UPR. It reflects what Philip Alston recently called out as the “systematic marginalization” of economic, social and cultural rights within the international human rights system overall. But the fact that there are significantly fewer recommendations focused on economic, social and cultural rights—on a limited range of topics—that lack specificity and detail undermines their utility in guiding policy making at the national level. As Hegarty and Fridlund note, the lack of any formal follow up mechanism is the “Achilles Heel” of the UPR; they urge states to adopt stronger provisions and standards for follow up, including the establishment of national plans of action and national coordinating mechanisms. Recommendations that do not provide meaningful guidance on how to operationalize their international obligations can be open to wildly different interpretations as they are channeled through national mechanisms. States can adopt vague, self-serving action plans and there is no benchmark against which they need to explain and justify their decisions.
The UPR is inherently a diplomatic process. So there may be a limit to how prescriptive states are willing to be when it comes to recommending action on economic, social and cultural rights. Nevertheless, the high acceptance rate for recommendations focused on economic, social and cultural rights—across most regions and across the range of actions recommended—suggests that the UPR has significant but largely untapped potential to improve the realization of these rights. As an intergovernmental, peer-review, mechanism, the UPR enjoys legitimacy in the eyes of states; at the same time, it is a mechanism that offers for space civil society engagement, including through shadow reporting. For these reasons, it offers a unique forum for scrutiny of the human rights impact of socio-economic policies.
Ultimately, strengthening UPR recommendations on economic, social and cultural rights depends on all stakeholders giving greater political priority to these rights. Our hope is the research fosters a constructive dialogue on what concrete action is needed to ensure that the UPR lives up to its potential as a mechanism for advancing all human rights. Proposals from the stakeholders we consulted include: systematizing the information submitted by United Nations Country Teams and technical agencies; helping all stakeholders to analyze relevant data through a human rights lens; sensitizing permanent missions in Geneva and ministries of foreign affairs about the impact of fiscal policy in the realization of economic, social and cultural rights; and facilitating greater access to the UPR for national NGOs.
Building momentum to advance such proposals is particularly timely in the context of broader discussion around the role of human rights mechanisms in advancing the Sustainable Development Goals.
Allison Corkery is the Director of the Rights Claiming and Accountability program at the Center for Economic and Social Rights (CESR).