On 3 May 2013, the Universal Periodic Review suffered its second major assault of 2013. After Israel's failure to attend its own UPR, the Russian Federation tried to remove two recommendations which "do not comply with the basis of the review stipulated in the HRC resolutions nos 5/1 and 16/21" by adding them as footnotes in the report rather than as official recommendations.
The Russian Federation had previously used such wording to qualify Georgian recommendations in 2009 (Russia's first UPR). Those recommendations did not contain any mention of "ethnic cleansing", and they were notably not mentioned at all in the part of the report which is reserved for recommendations. However, at that time rejected recommendations did not appear in this specific part at the end of the Working Group report, as only accepted recommendations were listed there. This is therefore the first time that recommendations are not fully considered as official recommendations in a UPR report, which could lead to the conclusion that they are invalid.
It is worth noting that the legal dispositions of the UPR do not provide for any opportunity for the States under review to remove recommendations. The outcome of the review has to be "a report consisting of a summary of the proceedings of the review process; conclusions and/or recommendations [...]". In addition, the "Working Group shall prepare a factual report of its proceedings, consisting of a summary of the interactive dialogue, which will reflect recommendations and/or conclusions made by delegations during the interactive dialogue". The country under review is allowed to "communicate its positions on all received recommendations", and to identify the recommendations it supports, or to note those it does not .
As during any adoption of report, States had decided to avoid a vote. Voting would have been seen as setting the bad precedent of endangering the cooperation principle, core to the UPR. However, as stated by the Georgian representative, Russia's move was a "serious deviation of the principals and working methods of the UPR process" which "could open Pandora's box". By deleting recommendations perceived as being politically orientated, the door is left open to delete all kinds of recommendations. After the adoption, the representative of the United States expressed his concern and underlined that "the [Working Group report should] reflect what was actually said in the room" and that "today's report contradicts the common understanding and the widely accepted practices by allowing the state under review to alter the report of recommendations". Estonia recalled that "recommendations as such are owned by the countries making the recommendations, the decision what to do with them [to accept or refuse them] belongs to the country receiving recommendations". Finally, the United Kingdom said that they "believe the recommendations should be correctly reflected in the report in the correct area".
All states should have the right to suggest any recommendation. Politically motivated recommendations are not to be encouraged, and States should focus on recommendations which can improve the human rights situation within the reviewed country. The universality promoted by the UPR comes with a price: all States should be allowed to have the recommendations they made included in the UPR reports. If this is not the case, they are not being treated equally. Only an equal treatment can ensure that all countries play by the rules and accept to be reviewed.
There are opportunities to rectify this situation:
1/ According to the President of the HRC, H.E. Remigiusz Achilles Henczel, this "concern will be raised in the context of general debate under item 6 at the future session of Human Rights Council". It is indeed necessary to organise a dialogue at the upcoming HRC 23rd session (27 May - 14 June), in order to define applicable rules to include recommendations in UPR outcomes.
2/ Reaffirm the universality of the UPR, and envisage to vote for the adoption of the report of the Russian Federation in HRC 24th session (September 2013).
The success of the UPR is due to the cooperation among states, between governments and civil society. But such cooperation is achieved thanks to the equal treatment offered to all UN Member States; if States are not treated equally any more, the cooperation within the UPR will be weakened.
The precedent of Russia is one of the most challenging threats to the UPR since its inception in 2008. UPR Info calls on all UN Member States to find a cooperative solution in June in order to avoid such an undermining of the UPR.
Report of the Russian Federation