ADDIS ABABA UNIVERSITY:CENTER FOR HUMAN RIGHTS

An Assessment on the Effectiveness of

UPR Mechanism: The Case of India

Samrawit Tadesse

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Contents

Abbreviations and Acronyms ......................................................................................................... 2

1. Introduction ............................................................................................................................. 3

2. Procedure for the Effectiveness of UPR .................................................................................. 4

3. Effectiveness of UPR in light of India ..................................................................................... 5

4. Conclusion ............................................................................................................................... 7

Reference ........................................................................................................................................ 8

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Abbreviations and Acronyms

CAT: United Nations Convention Against Torture

CEDAW: Convention on the Elimination of All Forms of Discrimination Against Women

CRC: Convention on the Rights of the Child

ECOSOC: United Nation Economic and Social Council

GOI: The Government of India

HRC: United Nation Human Right Council

NGO: Non-Governmental Organizations

NHRIs: National Human Right Institutions Torture

OHCHR: United Nation High Commissioner for Human Rights

SUR: State Under Review

UDHR: Universal Declaration on Human Right

UPR: Universal Periodical Report

WGHR: Working Group on Human Right

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1. Introduction

Human rights are rights that are conferred for everyone being human inherently in a sense of

universality, inalienability, indivisibility, interdependently and equality. Thus, it was necessary to

have laws that are designed to fulfill, promote and protect these rights at international, regional

and domestic levels. To this effect, the United Nation (UN)1 is one of the vital organizations

working on the enforceability of the rights worldwide.

The UN human rights organizational structure is reasonably straight forward with the

responsibility for human right being focused primarily by key organs. Most formal reports on

human rights are eventually channeled to the General Assembly, the Economic and Social

Council (ECOSOC), the UN High Commissioner for Human Rights (OHCHR) and the UN

human Right Council (HRC).2

The newly established HRC is a subsidiary organ of the General Assembly to serve as forum for

equality to encourage respect for human right and fundamental freedom and achieve

international cooperation in solving international problems.3 To discharge its duties, the council

has four institutional buildings, namely, the Universal Periodical Report (UPR), the Special

Procedure, Complaint Mechanism and Human Right Council Advisory Committee.4 Among

these institutional buildings, UPR is the center of this paper’s discussion by taking India as a

proto type for effectuating the review.

Accordingly, detailed assessment is given on the effectiveness of the UPR in light of the Indian

reaction to the review and implementations of the recommendations given. India’s first and

second UPRs took place in 2008 and 2012 respectively. In the period between India’s first and

second UPR, nationwide consultation and intense research has been conducted by the national

and international human right bodies in order to implement the recommendations given at the

first UPR to India. The effectiveness of this consultation will be observed here below.

1 United Nations, available at: http://www.un.org [accessed on 02 November , 2013]

2 UN General Assembly mandated the UPR when it created the Human Right Council. See resolution adopted by the

General Assembly 60/251, Human Right Council, 03 April 2006, GA/Res/60/25 3 Ibid

4 Institution-building of the United Nation Human Right Council, Universal Periodical Report Mechanism,

A/HRC/Res/5/1, 18 June 2007

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2. Procedure for the Effectiveness of UPR

The UPR is a new and unique mechanism of the HRC aiming at improving the human rights

situation on the ground of each of the 193 UN Member States equally.5 Under the UPR all

member states of the UN face a comprehensive peer review, of their human rights record on the

basis of the legal norms contained under the UN Charter, the UDHR, human rights instruments

that each respective state had ratified, voluntary state commitments, and international

humanitarian law.6

During the review: information provided by the State under review (SUR) in the form of a

“national report”: reports of independent human rights experts and human rights treaty bodies:

reports of stakeholders including national human rights institutions and non-governmental

organizations will be used.7 Reviews take place during a meeting of the UPR working group

through an interactive discussion between the SUR and other UN Member States. NGOs can also

submit information which can be added to the other stakeholders report to be considered during

the review.8 Each State review is assisted by groups of three States, known as “troikas”

9, who

serve as rapporteurs. Following the review, outcome report is prepared by the troika with the

involvement of the SUR and assistance from the OHCHR.10

The report then has to be adopted at

a plenary session of the HRC. 11

The State has the primary responsibility to implement the

recommendations contained in the final outcome. 12

During the second review, the State is expected to provide information on what they have been

doing to implement the recommendations made during the first review as well as on any

developments in the field of human rights13

. The international community will assist in

implementing the recommendations by capacity-building and technical assistance, in

consultation with the SUR.

5 Promoting and strengthening the Universal Periodic Review, available at http://www.upr-info.org [accessed on

November 02, 2013] 6 Institution-building, supra note 4 Para 2

7 Ibid

8 UPR, supra note 5

9 General Assembly, Annex to Council resolution 5/1 Para 18 and in President’s statement PRST/8/1.

10 Official OHCHR website, available at http://www.ohchr.org/EN/HRBodies/UPR/pages/BasicFacts.axps[ accessed

on November 02, 2013] 11

Institution-building, supra note 4 12

General Assembly, Human Right Council, resolution, A/HRC/RES/16/21 Para. 13 13

General Assembly, Human Right Council, resolution, A/HRC/RES/16/21 Para. 6

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3. Effectiveness of UPR in light of India

At India’s first UPR in 2008, the government received 18 recommendations for the enhancement

of human rights in the country.14

An updated chart assessing India’s compliance with the 18

recommendations was released by UN Working Group on Human Right (WGHR) at the event.15

In the second cycle, the HRC has assessed the status of implementation of those

recommendations as well as other developments in relation to human rights over the last four

years16

.

One of the most important recommendations given to India was the ratification of the UN

Convention against Torture (CAT) and its Optional Protocol. At the review, the government of

India (GOI) has responded that, it is on due process of ratification and in the meantime the

constitution along with the Penal Code provided for safeguard against torture. However, the

WGHR in India reported that the GOI did not bring a comprehensive bill to the parliament for

ratification.17

In addition, the request of the UN special rapporteurs on torture for visitation has

not yet been responded by the GOI despite the fact that torture is routinely used as an

investigating practice and for law enforcement across India18

.

On the other hand, the issue of ratifying the Convention on Enforced Displacement was the other

recommendation given by the UPR. At the second UPR, India responded that it is working on

modifying the domestic laws to make it in line with the convention. However, the WGHR

showed that there is no sign of ratification of the instrument19

. There are also concerns about the

lack of effective discussions on this urgent matter and the measures taken by GOI are not in line

with the right to housing to provide sufficient compensation or alternative housing to those who

have been removed from their homes and/or their ancestral lands."20

14

General Assembly, Human Right Council, Eighth session, Agenda item 6 A/HRC/8/26/Add.1 15

The Working Group on Human Rights in India, available at http://www.wghr.org [accessed on 03 November

2013] 16

India’s second UPR, available at www.ohchr.org/EN/HRBodies/UPR/Pages/INSession13.aspx [accessed on 04

November, 2013] 17

General Assembly, Supra note 13,Para 1: Human right watch India UPR Submission, available at

http://www.humanrightswatch.htm [accessed on 02 November 2013] 18

The Working Group, supra note 14 19

Ibid 20

UN Committee of Economic, Social and Cultural Rights: CESCR, E/2009/22, E/C.12/2008/3, Para 248: The UN

Special Rapporteur on adequate housing, Raquel Rolnik available at

:http://www.ohchr.org/EN/Issues/Housing/Pages/HousingIndex.aspx accessed on 04 November 2013

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Enhancement mechanisms to address human right challenges, is the other recommendation

where GOI responded on the continuation to enhance legislative and judicial measures for

human right. However, no evidence has been seen to energize the ways to promote and protect

human right since the second UPR report. In addition, there is no national action plan to address

the issue of asserting human right with focus on gender based and caste based education, even

though it is urgently required.21

On maintaining disaggregated data on these discriminations, the

GOI responded that these data are available to the public domain but, according to the WGHR

report, the current data does not clarify true nature of the extent of the violations.22

When it comes to the involvement of civil societies in the UPR follow up and cooperation with

human right bodies and relevant stakeholders, limited steps have been taken to involve civil

societies in the draft of the UPR II report. Some delays have been seen on making the documents

available and only few comments were incorporated.23

The other recommendation was in relation to the signature and ratification of the optional

protocol to the CEDAW where GOI responded for having statutory and judicial mechanisms to

address the issue. The Protection of Women from Domestic Violence Act, 2005 lacked effective

implementation.24

The optional protocol provides for ways by which states can act in compliance

with CEDAW and do not have the spirit of contradiction with national laws. However, no move

has been made to ratify the instrument.25

Reviewing the reservation on article 32 of the

Convention on the Right of the Child (CRC) is the other recommendation which the GOI

responded for, having national legislations to recognize undesirable child labor and approval of

the child Adolescence Labor Act.26

The act sets minimum age for employment and hazardous

occupation. But some indicators show that, the implementation of the act is still facing

challenges and the full realization is still on infant steps.27

India was also recommended to find new ways to address the growing economic, social

inequalities caused by rapid economic growth. In the second UPR, the GOI reported for having

21

General Assembly , supra note 2: UN Human Rights Country Page – India: available at

http://www.ohchr.org/EN/Countries/AsiaRegion/Pages/INIndex.aspx [accessed on 04 November 2013] 22

Working group, supra note 14 23

Office of the United Nations High Commissioner for Human Rights: available at

http://www.ohchr.org/civilsociety/ [accessed on 04 November 2013] 24

Ibid 25

General Assembly , supra note 17 26

Ibid 27

Ibid

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several policies to address the equalities including the central vision of the 11th

plan. However,

according to the WGHR, the GOI did not address the root cause of the inequalities as it focused

on “ growth at all cost” and India’s standards for measuring poverty are not consistent with

global standards and do not follow a human rights approach.28

Given the enormous human rights

challenges faced by India, it needs to move a constructive engagement with the UN, and offer to

work with the UN, civil society and independent institutions in India towards a radically new

approach that focuses on the implementation of national and international human rights

commitments.

4. Conclusion

The sustained nationwide UPR consultations, and intensive research, resulted in a series of

reports: Joint Stakeholders Report, containing WGHR’s assessment of the human rights situation

in India, submitted to the UN in November 2011. According to WGHR, there seem to gaps in the

implementations of the recommendations given and in the involvement of civil societies in such

procedures. The report submitted by GOI for the UPR II is not satisfactory as the

recommendations given at the first UPR are not implemented accurately. From UPR I

perspective, the issue of torture: enforced displacement: addressing human right challenge

especially gender based and caste based education: involvement of civil societies in the UPR

follow up: signature and ratification of the optional protocol to the CEDAW: reservation on

article 32 of the Convention on the Right of the Child (CRC): growing economic, social

inequalities: were raised. In this regard, the existing national laws seem to have gaps in the

enforcement major human rights and implementations of the recommendations given. Even

though the UPR has pointed out the major issues for the realization of human rights, unless the

recommendations given are implemented in due time, attaining the long time goal might not be

attained.

28

UNDP, Draft country program document for India (2013-2017), DP/DCP/IND/2, 28 March 2012, page 2,

available at http://web.undp.org/asia/country_programme/CP/CP_IND_2013-2017.pdf and UNICEF 2009,

Tracking Progress on Child and Maternal Nutrition, available at

http://www.unicef.org/publications/files/Tracking_Progress_on_Child_and_Maternal_Nutrition_EN_110309.pdf

[accessed on 05 November 2013]

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Reference

Laws and other

Resolution adopted by the General Assembly 60/251, Human Right Council, 03 April

2006, GA/Res/60/25

General Assembly, Annex to Council resolution 5/1 Para 18 and in President’s statement

PRST/8/1.

General Assembly, Human Right Council, resolution, A/HRC/RES/16/21

General Assembly, Human Right Council, resolution, A/HRC/RES/16/21

General Assembly, Human Right Council, Eighth session, Agenda item 6

A/HRC/8/26/Add.1

Institution-building of the United Nation Human Right Council, Universal Periodical

Report Mechanism, A/HRC/Res/5/1, 18 June 2007

UN Committee of Economic, Social and Cultural Rights: CESCR, E/2009/22,

E/C.12/2008/3, Para 248

Electronic Materials

Human Rights Country Page – India: available at

http://www.ohchr.org/EN/Countries/AsiaRegion/Pages/INIndex.aspx [accessed on 04

November 2013]

Human right watch India UPR Submission, available at

http://www.humanrightswatch.htm [accessed on 02 November 2013]

India’s second UPR, available at www.ohchr.org/EN/HRBodies/Pages/INSession13.aspx

[accessed on 04 November, 2013]

Official OHCHR website, available at

http://www.ohchr.org/EN/HRBodies/UPR/pages/BasicsFacts.axps[accessed on

November 02, 2013]

Office of the United Nations High Commissioner for Human Rights: available at

http://www.ohchr.org/civilsociety/ [accessed on 04 November 2013]

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Promoting and strengthening the Universal Periodic Review, available at http://www.upr-

info.org [accessed on November 02, 2013]

The Working Group on Human Rights in India, available at http://www.wghr.org

[accessed on 03 November 2013]

Tracking Progress on Child and Maternal Nutrition, available at

http://www.unicef.org/publications/files/Tracking_Progress_on_Child_and_Maternal_Nu

trition_EN_110309.pdf [accessed on 05 November 2013]

United Nations, available at: http://www.un.org [accessed on 02 November , 2013]

The UN Special Rapporteur on adequate housing, Raquel Rolnik available at

:http://www.ohchr.org/EN/Issues/Housing/Pages/HousingIndex.aspx accessed on 04

November 2013

UNDP, Draft country program document for India (2013-2017), DP/DCP/IND/2, 28

March 2012, page 2, available at

http://web.undp.org/asia/country_programme/CP/CP_IND_2013-2017.pdf and UNICEF

2009,