Categorising Recommendations and Voluntary Commitments

In collaboration with UPR Info, Professor Edward McMahon developed the first method for categorising recommendations that emerge during the Universal Periodic Review process. 580 His five pronged categorisation of recommendations is based on

578 _{Ibid, p. 17, para.92.57.}

579 _{Human Rights Council, ‘Institution-building of the United Nations Human Rights Council,’}

18 June 2006, A/HRC/5/1, p. 1, para. 1. States are to be reviewed according to the Charter of the

United Nations, the Universal Declaration of Human Rights, human rights treaties that they have

signed or ratified, international humanitarian law (as applicable) and voluntary commitments and pledges.

580 _{Human Rights Council, ‘Report of the Working Group on Universal Periodic Review:}

144 the degree of action required to fulfil the recommendation, with one requiring minimal action and five requiring specific action (see Figure 4),581 which provides a tool for assessing the degree to which Universal Periodic Review is ‘action-oriented.’582 _In terms of its methodology, UPR Info explains that when a recommendation has two actions, the recommendation is generally categorised based on the first action. There are, however, some exceptions. When a recommendation ‘begins with two verbs,’ the second of the two is used to categorise the recommendation. A recommendation beginning with the words ‘continue and strengthen,’ for instance, is considered to be in category 4 (general action), rather than being classified in the third tier (continuing action).583 _{Lastly, ‘when a recommendation starts with a general action but then} provides examples of specific actions, it is considered as category 5’ such as in ‘improve women’s rights by amending the family code.’584

581 _{UPR-info.org, ‘Action Category,’ 2010, available at: www.upr-info.org.}

582 _{Human Rights Council, ‘Institution-building of the United Nations Human Rights Council,’}

18 June 2006, A/HRC/5/1, p. 2, para. 3(d).

583 _{UPR-info.org, ‘Action Category,’ 2010, available at: www.upr-info.org.} 584 _Ibid.

145 Figure 4 Edward McMahon’s Action Categories

Minimal Action

• Request, share or seek

Continuing Action

• Continue or maintain existing action

Considering Action

• Consider, explore, reflect on, revise or study

General Action

• Strengthen, encourage, ensure, take steps towards

Specific Action

146 The following examples provide some context for action categories one through five. Qatar’s recommendation that Egypt ‘share with other countries its experience in the education of persons with disabilities and in providing them with employment’585 _falls within the minimal action category (1). A recommendation requiring the State concerned to continue action (2) is Belgium’s recommendation that Zimbabwe ‘pursue the current debate on the abolition of the death penalty in a transparent manner including with respect to civil society.’586 _{The recommendation that Grenada ‘consider} issuing a standing invitation to United Nations human rights procedures’587 _falls within the third tier. Canada’s recommendation that Angola ‘take steps to ensure that its legislative and policy frameworks provide effective protections against all forms of violence faced by women, and that such protections are extended to all women, including internally displaced and refugee women, who are among the most vulnerable’588 _{falls into the general action category (4). An example of a specific action}

category (5) recommendation is Switzerland’s recommendation that Cambodia ‘adopt a law against corruption.’589

Professor McMahon developed the first quantitative system for categorising the quality of recommendations, which is a key consideration when viewing statistics on the number of recommendations a given State has implemented. If a State has accepted and subsequently implemented recommendations requiring minimal action, continuing action and considering action, but has failed to implement recommendations requiring general and specific action, the overall statistics could still insinuate that the State is highly cooperative with the review process. Applying this five-pronged categorisation of recommendations could reveal that even a State that has accepted and implemented a high number of recommendations could have also taken very little action to improve the situation of human rights at the ground level.

585 _{Human Rights Council, ‘Report of the Working Group on Universal Periodic Review:}

Egypt,’ A/HRC/14/17, 26 March 2010, p. 16, para. 65.

586 _{Human Rights Council, ‘Report of the Working Group on Universal Periodic Review:}

Zimbabwe,’ 19 December 2011, A/HRC/19/14, p. 21, para. 92.25.

587 _{Human Rights Council, Report of the Working Group on Universal Periodic Review:}

Grenada,’ A/HRC/15/12, 16 June 2010, p. 12, para. 71.23 (Brazil).

588 _{Human Rights Council, ‘Report of the Working Group on Universal Periodic Review:}

Angola,’ A/HRC/14/11, 24 March 2010, p. 16, para. 56.

589 _{Human Rights Council, ‘Report of the Working Group on Universal Periodic Review:}

147 Clear recommendations requiring specific action are most likely to yield the best results in terms of influencing the human rights situation at the ground level in a positive manner, because specific actions necessitate specific outcomes that can be monitored and followed-up on by recommending States and relevant stakeholders. Conversely, recommendations requiring minimal, continuing, considering or general action may not produce measurable outcomes. In these cases, States could claim to have implemented these recommendations, but there are no clear outcomes to demonstrate that such implementation has taken place.

148 Chart 5 Number of Recommendations per Action Category (Sessions 1-11,

Cycle 1: 18,888 Total Recommendations)

1. Minimal Action (451) 2. Continuing Action (2710) 3. Considering Action (1829) 4. General Action (7523) 5. Specific Action (6375)

149 Although the level of action required to implement a given recommendation is an important consideration when assessing its quality, this system of categorisation does not consider whether recommendations are relevant to the obligations of the State under review or meet the criteria set out for the review process. States are to be held accountable under the United Nations Charter, the Universal Declaration of Human Rights, any human rights treaties the given State is a party to, applicable international humanitarian law and voluntary commitments. Unless the criteria set out for the review process is amended, it does not include encouraging States to ratify outstanding international human rights treaties. McMahon’s method of categorisation classifies recommendations regarding ratification of outstanding treaties as requiring specific action. As shown in Chart 5, the highest number of recommendations fall under the general action (7523) and specific action (6375) categories during the first eleven sessions of the first cycle of review.590 However, 2082 of the 6375 recommendations requiring specific action refer to ratification of an outstanding treaty, which does not fall under the criteria set out for the review process.591

As detailed in Chapter 6 on State and Regional Behaviour during Universal Periodic Review, States have used their speaking time during the interactive dialogue to praise other States where no recommendation is made. Even if such praise is made with a view to identifying best practices for other States to learn from, no action is required by the State under review. As such, an additional category should be developed to account for statements devoid of any sort of recommendation where no action is required.

Another factor is that many recommendations are repetitive. When several States make similar recommendations during the review process, this can obscure the type of measures the State is required to take in order to fulfil its obligations should the recommendations be accepted, and can affect the statistics regarding the number of accepted recommendations and how many recommendations the State subsequently implements. A high number of recommendations can also intimidate least developed countries, especially when such States lack the resources necessary to implement them, which can affect whether such States continue to cooperate with the review

590 _Ibid.

591 _{UPR Info, ‘Statistics of UPR Recommendations,’ 2012, available at: www.upr-}

150 process in the long-term. If several recommendations essentially request the same action, they should not be counted twice to prevent skewing the statistical results of the number of recommendations requiring minimal, continuing, considering, general or specific action. Whilst McMahon’s method of categorisation contributes to the overall analysis of recommendations according to the level of action required on part of the State concerned, it represents but one tier of evaluation.

Another method for categorisation is the type of outcome the recommendation seeks to achieve. All outcomes relating to improving the realisation of human rights at the ground level should involve amending, developing or abolishing domestic legislation and policies to reflect international human rights obligations and developing, implementing or improving related programmes (see Figure 5). Recommendations under these categories correspond with specific, measurable outcomes, provided strong language is used, such as adopt, amend, develop, implement, or enforce, rather than weaker language such as consider, continue and reflect upon.592 Legislation and policy should translate into Government practice. National human rights institutions could monitor how relevant legislation, policies, and programmes translate into practice. An independent judiciary would be responsible for enforcing violations of legislation, whereas a Human Rights Commission would enforce policies and an independent auditor would review practices. The Government, in turn, would report on developments during the next cycle of review.593

Canada, for instance, already has the necessary institutional infrastructure, including a national human rights institution, national and provincial human rights commissions and an ombudsman/auditor general. Establishing these necessary mechanisms can be costly and time-consuming, which makes it less attainable for least developed countries to achieve in the short-term. Funding for least developed countries should focus on developing the human rights infrastructure necessary to implement, monitor and enforce human rights obligations to ensure later obligations are implemented in the most effective way from the onset, rather than wasting limited resources on

592 _{UPR Info, ‘Methodology – Responses to Recommendations,’ 2010, available at: www.upr-}

info.org/IMG/...Methodology_Responses_to_recommendations.pdf

593 _{Kedzia, Zdzislaw, ‘United Nations Mechanisms to Promote and Protect Human Rights,’ in}

Symonides, Janusz (ed), Human Rights: International Protection, Monitoring, Enforcement (Ashgate, Warsaw 2003), pp. 334-339.

151 implementation techniques that may not work in the long-term. Recommendations should thus be realistic, measurable, action-oriented and progressive.

152 Figure 5 Categorising Recommendations According to Type of Outcome

Implementation

Monitoring

Enforcement

Reporting

Legislation

Policy

Programmes

153 Recommendations could be categorised according to whether they can be implemented in the short-term (up to 2 years following the review), medium-term (before the next cycle of review), long-term (within the next 5-10 years), or continually, which would also assist in monitoring implementation of a given recommendation. States should be able to implement short-term recommendations, including those requiring consideration, evaluation, further study or reflection, within one year following their respective review. States could feasibly implement medium- term outcomes, including programme development, and amending or adopting legislation or policies, before the next cycle of review, whereas long-term recommendations, such as building the institutional infrastructure required to monitor, enforce and report on human rights obligations, could potentially extend beyond the next cycle of review, particularly in least developed countries. Some recommendations require continual implementation, such as enforcing legislation, policies, and international obligations, administering and maintaining programmes and reporting to the international treaty bodies.

Categorising recommendations in this way would assist with accurately measuring whether States have implemented the outcome of the review within a reasonable timeframe following the review and reveal the level of action required to do so. For instance, short-term recommendations often require minimal, continuing, considering or general action, which McMahon’s model of action categories considers as separate. Medium-term, long-term and ongoing recommendations are generally more specific and require greater resources, time, and effort in order to implement; they are also the types of recommendations that will yield the most significant outcomes in terms of affecting positive change in the situation of human rights at the ground level. In order to achieve this, recommendations should be as specific as possible, referencing the adoption, amendment, monitoring, or enforcement of legislation and policies alongside the implementation of and reporting on specific outcomes stemming from programmes, thus allowing the State under review to identify concrete outcomes that can be implemented within a given timeframe.

Understanding the normative framework is a necessary prelude to evaluating recommendations arising during the Universal Periodic Review process, particularly when determining whether recommendations coincide with the criteria set out for the

154 review process. Although the criteria stipulates that States are to be reviewed according to their adherence to the Charter of the United Nations, the Universal Declaration of Human Rights, international human rights treaties that States are a party to, applicable international humanitarian law, and voluntary commitments, few recommendations make an express connection to the criteria. States have also raised recommendations that fall beyond the scope of the criteria.

Although Professor McMahon’s method of categorising recommendations arising from the Universal Periodic Review based on action required provides a necessary layer of analysis when evaluating the types of recommendations issued, there are other methods of categorisation that are equally important to consider when evaluating the quality of recommendations and State implementation. Analysis should extend beyond the action required to implement a recommendation and likewise consider the technical and financial needs arising from accepted recommendations; the type of outcome to be achieved, and the timeframe required for implementing the said outcome. These additional tiers of analysis would clarify whether States are indeed investing the requisite resources, time, and effort into improving the human rights situation in their respective countries.

Evaluating recommendations and voluntary commitments in the context of their legal substance and the normative framework for the Universal Periodic Review process reveals that few recommending States and States under review refer to the criteria for the review. Whilst States under review are to be held to account for existing human rights obligations, many recommendations centred on ratification of outstanding obligations. Most recommendations did not cite the source of the obligation contained therein. Other recommendations were more political than human rights oriented. Much can be learned from categorising recommendations and voluntary commitments, including the level of action and length of time or resources required for implementation, which can be used to identify trends, strengths and weaknesses per State and regional group.

155