U.S. POSITION on the Universal Periodic Review

Third Session of the Human Rights Council
Geneva,
December 4, 2006

Mr. President,
 
          The United States views the Universal Periodic Review process as an important opportunity for members of the Council to work with all United Nations member states in a cooperative and non-condemnatory fashion to review each country's commitment to human rights.  We congratulate the facilitator, the member and observer states, and NGOs for the cooperative spirit in which the UPR working group sessions have been held.  My delegation's comments will be in keeping with the facilitator's helpful outline.
 
I.       THE TERMS OF REFERENCE/BASIS OF REVIEW
 
          There appears to be a growing consensus that the terms of reference/basis of review should be broad, covering for example the Universal Declaration for Human Rights, human rights treaties to which a country is a party, voluntary pledges made by States, especially those undertaken during the Human Rights Council election, and other measures a country has taken relating to human rights.   However, we question the need to get into such a specific list. 
 
          At this point, my delegation wonders whether it would be necessary or productive to enter into a long negotiation about an extended or purported exhaustive list of other instruments or standards.  A simple catch-all formulation -- such as "...and other relevant human rights standards and commitments” -- should be sufficient.

II.      THE OBJECTIVES AND GUIDING PRINCIPLES OF REVIEW

          The principles and objectives of the review are spelled out in OP5(e) of Resolution 60/251. 
 
          We can support all of the objectives suggested in the facilitator's preliminary conclusions.  With respect to elements where there is not yet consensus, the Council should consider carefully any references in the text to giving consideration to the level of development of countries.  We agree that UPR may take into account a country's level of development; however we suggest that this idea should be carefully articulated so as not to suggest different standards for different countries, but rather to identify countries for which technical assistance on human rights matters could be particularly useful.

III.          PERIODICITY AND ORDER OF REVIEW

          We agree on all the points raised in the elements of convergence in the preliminary conclusions paper, with the slight caveat that all member States should be reviewed first -- in other words, before observer states -- because they have taken upon themselves the important task of leading the Council in promoting and protecting human rights worldwide.  As far as periodicity, we continue to support meaningful review of 40 countries per year with a five-year cycle between reviews.  This would be enough to have impact without overburdening the Council and Secretariat, while recognizing that the Council on its own initiative may decide to consider a country-specific situation at any point in the five year UPR cycle.  With respect to those regular periodic reviews, the principles of equality and universality require that UPR should examine all UN members on an equal basis and with the same frequency.  The order of review can be determined by lottery.

IV.     THE PROCESS AND MODALITIES OF REVIEW

          In this section and more directly in Section V, some descriptions of matters of convergence make assumptions about decisions for which there is not a consensus of views.  In this section, these may reflect drafting problems with which we will be pleased to consult with the facilitator. One important question that will be discussed in greater length in Section V is the nature of the action that the Council would take with respect to the work of the country reviews undertaken by the review panels.

          We continue to support a process beginning with the circulation -- by a peer review working group made up of members (for example, two members from each regional group) -- of a short factual questionnaire designed to elicit an informative review of that state's practices.  This should include positive areas and those that may need more attention. We believe it imperative to bear in mind that UPR should be a peer review system.  The working group -- comprising representatives of members of the council -- should invite each country for a two-hour-long interactive dialogue, which would be open to the public and to NGOs and which would be based on the questionnaire and information received from all sources.  This would include information provided by UN treaty bodies, NGOs, and other stakeholders.  The Secretariat should coordinate this action and prepare a dossier, which would include a relevant summary to facilitate review.

          The actual peer review dialogue should include countries from all regional groups, be cooperative and non-condemnatory, and should aim to find ways to assist the state where appropriate -- including identifying areas suitable for technical assistance and support.  Sessions should be open to the public.  As noted in the paper there was a general understanding in our discussions that the peer review working group would avoid duplicating the work of existing human rights treaty bodies and special mechanisms.

          Because we see this as a peer review, we do not think it necessary to create an expert group or body to work on these issues, but expect that there would be active participation and influence in the process by a wide range of experts -- including reports of treaty bodies and Special Procedures -- NGOs, national human rights organizations, and the public.

V.      THE OUTCOME OF REVIEW

         In the view of the United States the elements outlined in Part V, Section A ("Format of the Outcome") are not elements of convergence and have not been agreed upon and thus need further consideration and discussion.  For example, we do not see a role for experts to prepare conclusions or recommendations (although they can and are encouraged to offer advice to member states conducting the review), nor has there been any consensus on this point in the working group.  Drawing such conclusions is a function for the Council itself either directly or through the work of the member-directed peer review working group -- in other words, it is the very essence of peer review.

          Second, we do not believe that every review should necessarily lead to a specific recommendation or decision by the Council in plenary session.  If that were to be the case for more than 190 countries, the Human Rights Council could have little else to do during its sessions than consider and negotiate specific recommendations and decisions under the UPR for every country in the world.  As far as the content of the outcome, absent special circumstances that would call for expedited consideration of a particular country situation, it would be our preference to have the council to take action once or perhaps twice a year reviewing the work of the peer review working groups collectively.  At this point, it would not be necessary or useful to prejudge what the Council might decide with respect to the situation with any particular state.  Let us focus on the positive elements that may be addressed in most cases, and let the Council decide on a case by case basis how to deal with any difficult situations which may arise from time to time.

          Furthermore, the mode of adoption described in the preliminary conclusions paper does not reflect the full discussion in the working group and has not been agreed.  The purpose of the UPR is for states to have a detailed and frank dialogue on human rights with all their peers, to identify areas that may need technical assistance or capacity building, to call for more attention to specific problems, and to do this in an open, transparent, and inclusive process.  It is not, as the paper suggests, a forum for the Council to direct each country to take prescriptive measures as part of the outcome of each review.  While UPR will provide an important forum for the Council to discuss frankly measures a country should take pursuant to its own obligations to treaties it has ratified and its own pledges.  The UPR process should be collaborative and recommendatory, and cannot impose legal obligations on states.

          We support an annual report submitted by the peer review working group to the Council that would include summaries of all the reviews, which the Council could receive for appropriate action.  We do not support a requirement that the Council take a separate decision on a resolution for each country reviewed. 

VI.          FOLLOW-UP TO REVIEW

          The elements of convergence probably reflect all of the areas on this subject in which wide consensus will be possible.  We must bear in mind that UPR is an extremely ambitious and labor intensive exercise.  We should be quite careful between the time of reviews not to create additional requirements either on countries or on Council mechanisms and resources.  As each country will be reviewed again within five years, it seems that the UPR mechanism itself, rather than a formal new institution or body, can provide a reasonable and cost efficient follow-up mechanism, bearing in mind that the Council may decide at any point to consider a particular country situation or problem.  Accordingly, while noting the important advisory role of relevant experts, NGOs and the public during the UPR process, we would not support the creation of another special rapporteur or other new mechanism or requirement on countries during the period between reviews. 

          In closing, we would like to thank the Working Group Chairman for his leadership and tireless efforts.  The United States is pleased to continue to work collaboratively with all participants in this process to help develop an effective and robust process of universal periodic review.