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A discussion took place on Tuesday, 4th December, at the Human Rights Council, on the basis for the Universal Periodic Review: Uruguay, on behalf of Argentina, Chile, Costa Rica, Ecuador, Panama, Paraguay and Peru, stated that the inclusion of voluntary commitments in the basis of the review was positive, but called for the additional inclusion of international humanitarian law and international customary law in order to provide a more substantial review. Uruguay also encouraged a review process that incorporated a victims-based approach whilst taking into consideration gender and children's rights-based approaches. Finland (on behalf of the EU and others) stated that the basis of the review should include the Universal Declaration of Human Rights and treaty body obligations. Finland asserted that the information from the treaty bodies, as an independent, authoritative and impartial assessment of human rights obligations, should be used as a source for the review process. Nevertheless, using treaty body information does not mean that the Pakistan (on behalf of the OIC) stressed that the basis for the UPR should be the UN Charter, Universal Declaration of Human Rights, and other instruments ratified by a State. They also included voluntary commitments, but stated that these should not be given the same status as legal obligations. Pakistan also supported the proposition of including international humanitarian law as a source for the UPR’s standards, but was not convinced of the validity of using domestic and customary law as sources for the UPR. Pakistan also proposed that the basis of review should take into consideration the level of development of a state’s religious and cultural specificities. Malaysia highlighted their reservations concerning international customary law as a universal guide for the standards of all nations. They continued to stress that the basis of review should not interfere in the domestic laws of States under review, particularly those States which practice Sharia Law. Chile doubted whether existing information, such as the work of treaty bodies and special procedures, should be considered in the findings and recommendations of the UPR. Iran argued that any information from treaty bodies as well as thematic special procedures could be included in the work of the UPR. Denmark supported the idea that the basis of review should derive from existing information, including the conclusions and Human Rights Watch stressed the importance of including common Article 3 of the Geneva Conventions and international customary law. A joint statement from International Save the Children Alliance, on behalf of nine NGOs, recommended that human rights in general and particularly the rights of children, including the Convention on the Rights of the Child (CRC) and its Optional Protocol, as well as conclusions of the treaty bodies, should form the basis of review. The International Federation of University Women emphasised the rights of women, including the importance of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) and the programmes of work of Beijing, Copenhagen and Cairo. In the informal consultations States were invited to comment on the elements requiring further consideration on a point-by-point basis. Concerning the basis of review, Cuba suggested that the obligations derived from outcome documents of UN conferences and summits be added as a further basis of review. This view was shared by Iran and Sudan. Belgium felt that the inclusion of such conference and summit documents would go too far. This opinion was shared by Japan, Malaysia, the Philippines and the United Kingdom (the UK), who stressed that on account of their volume, such documents could be used selectively. In this context, Canada cautioned against misusing the UPR as a means to follow-up to UN summits and conferences. Switzerland questioned whether national legislation could serve as a basis for review. Such domestic legislation could be screened on its compatibility with international law. This was supported by Guatemala, Egypt and Canada. Ecuador pointed out that on occasion national legislation affords higher levels of protection to victims than international human rights law, and should therefore be included. The Philippines, Colombia reiterated its support for the inclusion of international humanitarian law (IHL) as a basis of review, since the situation of a country in conflict could only be understood through that prism. This idea was welcomed by Japan, Uruguay, Ecuador, Egypt and Malaysia. Regarding the issue of international customary law, the present delegations remained divided. Uruguay viewed customary law as an important basis for review, alongside Switzerland and Ecuador. Other States suggested a more cautious approach to customary law on the basis that the parameters of customary international law were not adequately defined. Belgium was joined by the UK in its suggestion that both IHL and international customary law should only be used as a basis as far as international customary law could be determined in the Universal Declaration of Human Rights and other instruments. A number of States took a cautious approach to the inclusion of the recommendations of treaty bodies and human rights experts. Japan said that such recommendations could not be regarded as law. Colombia asked a distinction of different degrees of ‘bindingness’, on account of the status of treaty bodies as bodies that oversee legally binding instruments, and Special Procedures as overseeing non-binding mandates. The USA questioned the idea of starting with a list of documents for building the basis of review, and asked for a more general formulation. It also said that the UN Charter should not be on that list, since it is not a human rights instrument as such. Sudan and Iran opposed this and proposed to maintain the reference to the Charter. Further information
UPR would be a second substantive review of treaty body obligations. Rather, the UPR should focus on implementation of the recommendations. In situations where a county has little interaction with treaty bodies or special procedures, information could be gathered from OHCHR, UN country teams, NHRIs and NGOs. Additionally, Finland stated that international customary law and international humanitarian law could be included in the review process.
recommendations of treaty bodies, special procedures and the country in question.
however, cautioned that the UPR should not be just a body for reviewing national legislation, and stressed that only in very specific circumstances should national legislation be taken into account. Malaysia supported this opinion, declaring that it was not for the Council to review legislation drafted by democratically elected parliaments.