COUNTERING RITUALISM: WHAT DOES IT MEAN TO FOLLOW-UP HUMAN
RIGHTS RECOMMENDATIONS?
Gerd Oberleitner
University of Graz
PAPER DELIVERED AT
‘THE RITUALS OF HUMAN RIGHTS’ WORKSHOP
CENTRE FOR INTERNATIONAL GOVERNANCE AND JUSTICE, REGNET
AUSTRALIAN NATIONAL UNIVERSITY
CANBERRA, AUSTRALIA
25-27 JUNE, 2014
Ritualism and the implementation crisis
While the creation and proliferation of human rights monitoring procedures is surely
impressive against the backdrop of the Universal Declaration of Human Rights of 1948
(which had remained silent on matters of enforcement), their results are ambivalent. There is
no shortage of recommendations made by international human rights bodies, such as regional
human rights courts, United Nations (UN) treaty bodies, the UN Human Rights Council, its
special procedures and the Universal Periodic Review (UPR), the UN High Commissioner
for Human Rights and other bodies. They produce a wealth of ‘output’ in the form of reports,
conclusions, observations, views, resolutions, decisions, judgments, findings and
recommendations on a range of human rights issues, on structural and individual human
rights violations and on the successes and failures of states to guarantee human rights. 1 At the
same time, there is an “implementation crisis.” 2 The rate of effective implementation of
recommendations remains troublingly low and it is estimated that only 10% to 50% of
decisions of human rights bodies are effectively implemented. 3 Some mechanisms, such as
those in the African human rights system, are particularlyprone to such a lack of effective
implementation of human rights recommendations. 4 The lack of meaningful follow-up to the
activities of the special procedures of the UN Human Rights Council has been considered “an
embarrassment” 5 and even the generally successful European Court of Human Rights is
confronted with non-execution of its judgments. 6 The UPR of the UN Human Rights Council
reports that while, after three years, 48% of all recommendations have triggered some sort of
action, only 18% have been fully implemented and 30% partially. 7 The fact that data on the
implementation of recommendations is often unavailable or questionable aggravates this
crisis. 8
Effectively following up recommendations of human rights bodies can thus be seen as vital
for ensuring the effectiveness of the human rights system as a whole. Otherwise, human
rights institutions will be seen as self-serving exercises in ritualism, allowing states to accept
norms in a perfunctory manner and participate in formalized legal procedures in the absence
of any substantial commitment to human rights. The way in which states seem to be entitled
to disregard recommendations of human rights bodies represents a major weakness of the
current human rights system. Where recommendations and judgments of human rights bodies
- often made repeatedly - do not lead to discernible progress, the belief in the system will
soon be shattered, given that the success of the idea of human rights depends (also) on the
ability of the international human rights system to initiate and foster visible change. 9
Ensuring that recommendations of human rights bodies are effectively implemented is
perhaps the greatest current challenge to the international human rights system.
Following up human rights recommendations seems self-evident, yet it is a surprisingly
poorly understood part of international regulatory networks in the field of human rights. 10
The legal and policy conditions, implications and consequences of following-up human rights
recommendations remain little understood and the limits, potential and contours of the
respective means and mechanisms have only occasionally been delineated. 11 What are the
preconditions and characteristics of follow-up as a means to counter ritualism in human rights
law, and how prone are follow-up activities to fall into the trap of ritualism themselves?
Understanding follow-up as compliance management
“Follow-up” is neither a term of law nor a prevalent part of the human rights language. It is
(and is used here as) an umbrella term which signifies that even though a result has been
reached in a formal procedure, the subject matter is not concluded, deserves further attention
and necessitates further action. More specifically, states are meant to ‘implement’
recommendations of human rights bodies so as to comply with their human rights obligations.
At the same time, human rights monitoring bodies have a responsibility to devise ways and
means to accompany, facilitate and ensure the implementation of their recommendations.
Follow-up thus needs to consider the obligations and postures of states towards human rights
recommendations as well as the responsibilities, potential and constraints of human rights
bodies to follow-up such recommendations.
It seems fair to say that in the creation of human rights institutions and procedures there has
been limited attention to follow-up. It is often the least developed area within such
procedures. 12 Human rights bodies may be well equipped to analyze situations and suggest
change but seem otherwise to rely on the mere expectation, or even hope, that states will do
as they have been told. Follow-up seems to have been added as an afterthought to the
procedural prescriptions for human rights bodies and where such provisions exist, they are
mostly vague. 13 The mandate of the Inter-American Commission on Human Rights to adopt
“the follow-up measures it deems appropriate” 14 may serve as an example. In their procedural
prescriptions, human rights bodies find guidance on process rather than on progress. Calls for
effective follow-up then add another obligation to the functions of human rights bodies, many
of which are not equipped (legally or with regard to their resources) to do so. 15 It is therefore
little wonder that follow-up activities are usually under-financed in comparison to other parts
of the monitoring process. 16
Follow-up also suffers from some misconceptions about the way in which human rights
obligations can be enforced. 17 In the absence of any enforcement capacity, i.e. the ability to
resort to coercive measures, human rights bodies cannot impose anything, but rather seek to
ensure or manage compliance with human rights obligations, i.e. identify, understand and
counter situations of non-compliance. 18 This is obviously more akin to a form of international
regulation rather than a model of command and control. 19 A rationalist perspective that relies
on the (legal or moral) authority of a human rights body is thus less well suited to explain
follow-up than a constructivist approach that emphasizes the importance of understanding
when and how states can best be persuaded to implement human rights. Consequently, any
follow-up to recommendations needs to be informed by an analysis of the sender as well as
the recipients of recommendations. The form and content of recommendations are as
important as the way in which they are perceived. Misconceptions in this area provide fertile
ground for falling into a ritualistic performance. Both sets of variables - aligning follow-up
measures with the type of recommendation made and anticipating the posture a state may
take towards it - need to be taken into account. Insights from literature on regulatory
mechanism may help to understand (and possibly counter) postures taken by states towards
recommendations. They may help answer the question why some states embrace regulatory
norms and goals while others demonstrate disengagement and reject the underlying
legitimacy of regulatory goals, resist compliance in a particular case even though they
generally accept the rationale of human rights norms, or capitulate and half-heartedly
implement a recommendation in the absence of a genuine commitment. 20
On the other side of the equation, human rights bodies need to demonstrate that their
recommendations can be implemented effectively. Recommendations are often perceived as
either sweeping or too complex, and calls for specific, clear and implementable
recommendations are a common feature in every discussion on follow-up. 21 The range of
individual recommendations addressed to individual states seems overwhelming for some
states and has led to suggestions to adopt joint recommendations, cross-reference or establish
inter-committee structures so as to avoid duplication and ensure consistency. 22
But there is no blueprint for a ‘good’ recommendation. Perhaps a broad and vague
recommendation is impossible to implement; perhaps the opposite is true and a state is more
inclined to act upon a general instruction rather than being told to adopt a particular law. A
study on the acceptance of recommendations made in the UPR found that it depends on the
subject-matter rather than the wording of a recommendation: states opposed to discussing
sexual orientation as a human rights matter are likely to reject even the vaguest mention of
the topic while they are prepared to accept other, more specific, action-oriented and costly
recommendations without hesitation. 23 The same goes for the assumption that
recommendations from independent sources are more acceptable than from other states.
While some states cooperate actively with Special Rapporteurs of the Human Rights Council,
others would rather accept harsh criticism from their peers than even friendly advice from a
non-governmental source. 24 The level of compliance also depends on the nature of remedies.
While compliance with the order of monetary damages by the European Court of Human
Rights is high, compliance declines where specific measures are required from states. 25
Understanding the nature of human rights monitoring as persuasive compliance management,
which aligns variegated forms of recommendations with equally different postures of states,
avoids misplaced expectations and helps adjusting and adequately framing the critique of
human rights procedures as ritualistic.
Recommendations as obligations?
Implementation of recommendations of human rights bodies is only a secondary form of
compliance: states are being asked to comply with statements made by competent bodies
which repeat, emphasize, highlight, prioritize or specify (first-order) human rights obligations
which are grounded in international law. As a consequence, follow-up is intrinsically linked
to the nature, content, scope and validity of recommendations and to the legal form they are
given in international law. With the exception of judgments of human rights courts,
pronouncements of human rights bodies cannot claim legally binding force and are usually
described as (non-binding) recommendations or ‘soft law’. The statement in the UN Fact
Sheet on treaty bodies is emblematic of this position: “Treaty bodies have no means of
enforcing their recommendations. Nevertheless, most States take the reporting process
seriously, and the committees have proved successful in raising concerns relating to the
implementation of the treaties in many States.” 26
Overall, the non-binding nature of recommendations has become widely accepted to the
extent that it is usually mentioned as a matter of fact. The position of states towards this
question was tested in the 1993 Vienna World Conference on Human Rights, which
suggested inserting a clause in the Optional Protocol on individual complaints under the
International Covenant on Civil and Political Rights to the effect that states parties would
“undertake to comply with” the Committee’s views. 27 There was no consensus on this. Most
commentators therefore suggest to leave things as they are and work within the constraints of
the system. 28
Still, the lack of clarity on the legal weight of pronouncements of human rights bodies
remains bothersome. 29 Recent developments within the UPR of the Human Rights Council
seem to invite renewed engagement with this question rather than continue glossing over it
uneasily. A key element of the UPR - one not foreseen when the system was created - is the
ability of states not only to take note of recommendations but express an opinion on them, i.e.
to accept or reject recommendations. This is a novelty and unique in the human rights system
and the consequences are yet unexplored. If a state accepts a recommendation, does it merely
wish to take note of it or does it express a (somehow heightened) commitment to accept it as
binding? And if a state rejects a recommendation, does it merely wish to ignore it as policy
advice or does it reject it as a legal commitment? What if a state were to reject a
recommendation which merely restates a binding legal obligation such as, for example, the
prohibition of torture? What if a state rejects a recommendation, yet implements its content
(as has frequently been the case) - does this demonstrate state practice while expressing
contradictory opinio juris? What if a state consistently reminds other states of international
legal obligations which the state itself does not implement - could other states claim the
principle of estoppel (i.e. the prohibition to act contrary to declarations a state has
consistently made)? 30
It has rightly been cautioned that there may be little to be gained from suggesting a legally
binding force (of whatever kind) of recommendations. Ultimately, they may be meant to be
nothing more than policy suggestions in a dialogue process between a state and a supervisory
body, so that retaining their fluid and uncertain character as policy prescriptions may not be
an impediment but rather an advantage. 31 And states will likely continue to see it as their
prerogative to take the final decision on whether or not to follow decisions of international
bodies, including those which are legally binding, or at least decide on the precise manner
and method of giving effect to them under domestic law. 32
Even so, the dichotomy of the ‘binding’ and ‘non-binding’ nature of different types of
recommendations seems questionable. Recommendations are obviously not meaningless but
are rather a specific type of obligation for the way they create an expectation to be
implemented. The non-binding nature of recommendations is not a permission to ignore them
under the pretext that they are not law. Even though ‘soft law’, they are part of international
law and not merely a policy statement. As such, they remain governed by general principles
of international law, particularly the principle of bona fide, i.e. the duty of states to adhere to
international law as a whole. This gives legal weight (albeit not legal force) to such
recommendations. 33 The Human Rights Committee, for example, considers its views (when
adopted with regard to individual complaints) as “exhibit[ing] some important characteristics
of a judicial decision” 34 from which at least a duty to cooperate in good faith and an
obligation to respect would follow. One may add further considerations, such as the
possibility that other (hierarchically higher) bodies with more political clout or legal status
endorse recommendations. Or one could mention that treaty obligations exist which oblige
states to provide effective remedies in case of human rights violations (such as Art. 2(3) of
the International Covenant on Civil and Political Rights), which could be extended to
recommendations where they represent one such remedy. 35
Measuring compliance
Follow-up is ultimately geared towards declaring that a recommendation is implemented, i.e.
that a demand of a human rights body is being met and that, as a consequence, compliance is
achieved. This necessitates a statement about the satisfactory or unsatisfactory
implementation of a recommendation which is, however, challenging for the way it
presupposes that compliance can easily be measured. But this is not a mathematical
calculation. As the Human Rights Committee has noted, any attempt to categorize
implementation is “inherently imprecise.” 36 Devising clear and valid indicators of
implementation is a challenge to which human rights bodies have responded differently. The
Inter-American Commission on Human Rights, for example, has created four categories:
“full compliance”, “partial compliance” and two types of non-compliance (“nonimplementation of recommendations” and “non-submission of information”). 37 The UN
Human Rights Committee uses (in its consideration of individual complaints) the dichotomy
of satisfactory and unsatisfactory responses by states, in addition to cases where no response
was received. Satisfactory responses are defined as those which demonstrate “a willingness
of the State party to implement the Committee’s recommendations or to offer the
complainant an appropriate remedy.” 38 The Committee on the Elimination of All Forms of
Discrimination against Women (CEDAW) classifies implementation fourfold as “largely
satisfactory”, “satisfactory”, “cooperation but incomplete” and “not implemented.” 39 In the
UPR, a categorization has taken hold along the lines of recommendations which require
“minimal action”, “considering action”, “continuing action”, “specific action” and “general
action.” 40
Progress can be measured quite differently, either in absolute terms (i.e. on the basis of
formalized, standardized human rights behavior) or relational (i.e. in comparison to the
performance of others). 41 In the UPR, for example, progress often seems to be understood in
relational terms with regard to the peers and not necessarily against an abstract human rights
ideal, and the care for comparative advantage, i.e. the desire to be at least as good but not
necessarily better than other comparable states (or states in the region or like-minded states)
may be a driving force for adherence to recommendations. And even where highly specific
indicators, including databases, statistical evidence, numeric indicators and implementation
scores are developed, such indicators may not be able to replace a qualitative, narrative and
comparative assessment of compliance. The ability to measure progress seems another
prerequisite to meaningfully discuss ritualism in human rights law.
Managing follow-up
Human rights bodies have begun to respond to some of these challenges. Yet, in managing
follow-up they rely largely on the same techniques used in review procedures; mostly
requesting information on follow-up, sometimes focused on priority concerns. Some bodies
have introduced a more specific sequencing of follow-up, such as the African Commission on
Human and Peoples’ Rights, which asks to be informed of implementation measures within
six months of the decision taken, requests further information within three months after this
report, and sends reminders every three months thereafter. 42 The Inter-American Court is
perhaps the most specific in its requests and occasionally asks states to identify agents
responsible for implementing its decisions on the national level. When in one instance a state
party (Guatemala) responded that it was unable to implement a decision because the
responsible governmental agency would not cooperate, the Court ordered that specific names
of persons responsible for the implementation should be provided to it. 43
Some human rights bodies use rapporteurs to organise and manage follow-up and to ensure
the flow of information, assess implementation and persuade states to implement
recommendations. The functions entrusted to the Rapporteur of the Human Rights Committee
in 1990 (when the position was created) may serve as an example: the Rapporteur was meant
to recommend action to the Committee, communicate with the state and the victims or their
representatives, ensure that information on implementation found its way into the annual
report, and advise the Committee on matters of implementation. 44 In response to the findings
of the rapporteurs, human rights bodies usually address (another) recommendation to the
respective state. 45 Given that no other means are available, however, the rapporteur system
seems to have little effect other than securing the flow of information. 46 Human rights bodies
mandated to conduct country visits resort to the practice of follow-up country visits to remind
states of their obligations, requesting progress reports and usually targeting specific states by
suggesting follow-up visits with increased frequency. 47 Such visits are, however, often faced
with financial constraints, as there is usually no specific budget allocated to these types of
activity. 48 Such practices to manage follow-up generally replicate the activities of human
rights bodies in generating and processing information and is hampered by many of the same
constraints and shortcomings.
Confronting non-compliant states
Human rights bodies have developed different methods to confront non-compliant states, but
in the absence of means of sanctions and coercion this is evidently difficult terrain.
Sometimes, this task is left to rapporteurs who meet with diplomatic representatives of states
to present their findings, ask for clarification and suggest action. 49 The Inter-American
Commission and Court can also hold compliance hearings (even though the Commission
resorts to this practice only rarely, unlike the Court). Invitations to such meetings are not only
extended to the state and the victims of human rights violations, but also to expert witnesses
who can present information on compliance. 50
Questions of implementation can also be raised in public events so as to make the nonimplementation of recommendations an issue of public interest and debate, expose noncompliant governments, name and shame persistent non-compliers and exert soft forms of
pressure towards implementation. Thematic special procedures of the Human Rights Council
organize or participate in events to discuss their annual thematic reports, issue press releases,
publish on the web or hold thematic discussion days. The importance of civil society
organizations in scrutinizing, accompanying, assisting and criticizing the implementation
process is evident. 51 It seems important to extend such activities beyond human rights NGOs
to other stakeholders, particularly legislative organs (for example by specifically inviting
parliaments to submit information, providing webcasts of sessions, visit parliaments etc.).
Cooperative follow-up of human rights bodies is another strategy to secure compliance, as
happens, for example, when the European Committee against Racism invites members of the
UN Committee on the Elimination of Racial Discrimination to attend its meetings, or the UN
and European Committees against Torture to exchange information. 52
Some human rights bodies rely on their respective “parent bodies” to secure additional
legitimacy and political weight. The Inter-American Court of Human Rights, for example,
includes information on compliance in its report to the General Assembly of the Organisation
of the American States. 53 The African Commission on Human and Peoples’ Rights may, in
cases of non-compliance, similarly alert the Sub-Committee of the Permanent
Representatives’ Committee and the African Union’s Executive Council on the
Implementation of Decisions. 54 While UN human rights bodies have no such “enforcement
agents” at their disposal, the European Court of Human Rights can turn to the Committee of
Ministers of the Council of Europe for the execution of its judgments. The Committee has to
secure the execution of judgments through constructive and cooperative dialogue between
states. 55 Under its rules of procedure, states have to abide by a strict reporting timeline on
implementation measures and provide the Committee with a plan of action on
implementation. Cases of non-compliance are routinely put on the Committee’s agenda and
the Committee uses publicly accessible “status sheets” to report on the status of
implementation. It may also decide on interim measures in cases of non-implementation or
increase the frequency of discussing the matter. Under the ‘twin-track’ system, priority is
given to cases requiring urgent measures, pilot judgments, judgments which disclose major
structural problems and inter-state cases. 56
Under the European Convention, cases of non-compliance can also be brought back again to
the attention of the Court in some form of “feedback-loop.” 57 Somewhat similarly, the
African Commission on Human and Peoples’ Rights may refer any matter to the African
Court of Human and Peoples’ Rights and thus keep a particular concern within the system so
as to increase compliance pressure. 58 The use of such enforcement agents is, however, not
without problems as it effectively creates an additional layer of prescribed behaviour. 59 The
Izmir Declaration, for example (adopted at the High Level Conference on the Future of the
European Court of Human Rights in 2011) emphasizes that the Committee of Ministers must
carry out its supervision strictly on the basis of the legal analysis undertaken by the European
Court of Human Rights so as to avoid such duplication. 60 Overall, managing follow-up and
confronting states with non-compliance is bound by the same legal, financial and policy
constraints which human rights bodies face in all areas of their activities.
National implementation initiatives
While it is up to the state to comply with recommendations of human rights bodies, ensuring
such compliance is effectively a joint effort of various stakeholders on the national level.
Human rights organizations and national human rights organizations are key players in this
regard. There is no shortage of suggestions, as well as examples, of implementation policies
which make up for some of the deficiencies identified in the international legal framework
and in the practice of human rights bodies. It is a prerequisite for the implementation of
recommendations that they are known to the relevant stakeholders domestically: ministries
and subordinate administrative entities, the legislator and the judiciary, civil society
organizations, trade unions, religious communities and the public at large. Similar to the duty
to disseminate information on international humanitarian law, an initiative to improve
knowledge of the work and recommendations of human rights bodies on the national level
could be envisaged, including efforts to translate and disseminate not only human rights
documents but also important human rights recommendations in an accessible way. Human
rights expertise needs to be created beyond the central government agencies (such as Foreign
Ministries or Ministries of Justice), for example in the form of human rights service
institutions, which channel and manage recommendations. 61 The setting up of national
inspection mechanisms (similar to those provided for under the Optional Protocol to the UN
Convention against Torture at the national level) could be envisaged with a broader and more
promotional mandate. 62 A concrete way forward could be the creation of “National
Implementation Portals” with web-based, accessible database-like updated entries on the state
of implementation of recommendations in the respective national language(s). Public
implementation charts already exist in some countries and the UPR Working Group on India
may be an example of best practice in this regard. 63
All this needs to be embedded in a common implementation policy which is best expressed in
a National Action Plan on human rights, which in turn may lead to the establishment of
structures such as national implementation focal points or inter-ministerial working groups. 64
The focused and prioritized use of United Nations and other human rights advisory services
to build implementation capacity could go hand-in-hand with such national measures, so as to
strike a balance between investing in the preparation of information for human rights bodies
(for example in a state report) and the follow-up of its recommendations. 65 Lessons learned in
improving monitoring processes (for example on submitting information, cooperating with
human rights bodies, creating stakeholder coalitions, involving epistemic communities and
legislators) could be replicated in the follow-up period. 66
Only a few states have gone a decisive step further and given legal force to the
recommendations of human rights bodies within their domestic sphere. The examples of
Colombia and Peru, where national laws contain such a duty, are instructive. 67 In Peru, the
implementation of recommendations of human rights bodies which issue non-binding
recommendations is based on a presidential decree of 2000. 68 It stipulates that on the basis of
the general principle of good faith in international law the government commits itself to
process non-binding recommendations of human rights bodies (e.g. the Inter-American
Commission of Human Rights). The decree charges the National Human Rights Advisory
Body (Consejo Nacional de Derechos Humanos) of the Ministry of Justice with the
responsibility to follow up such recommendations, including the procedural aspects of
handling recommendations. A Special Commission to Follow-up on International Procedures
is tasked with directing, monitoring and coordinating implementation activities, suggesting
legal and administrative changes and cooperating with civil society actors. 69 Colombian
legislation similarly contains provisions on the payment of pecuniary damages ordered by
international human rights bodies and allows the creation of an inter-ministerial committee
which decides on implementation and the payment of damages. Costa Rica has signed an
agreement with the Inter-American Court of Human Rights which provides that non-binding
resolutions of the Court will be given the same effect as legally binding judgments. Similar
legislative proposals are being discussed in Argentina and Brazil.. 70 Such initiatives are rare
but welcome reminders that nothing prevents states from transforming human rights
recommendations into domestically legally binding results. Successful national
implementation initiatives need to embed such a willingness to accept human rights
recommendations as authoritative within inclusive and sustainable policy-frameworks as the
appropriate response to ritualism in international human rights law.
Conclusion
Following up recommendations of human rights bodies is an incremental process of
constantly monitored steps towards compliance. Whatever form follow-up takes - whether
prescribed in detail as in the European Court of Human Rights, basic as in the UN system or
occasionally innovative and more in-depth as in the Inter-American human rights system - it
is ultimately carried out as a dialogic process between the sender and the recipient of a
recommendation. Given the nature and limits of monitoring as compliance management one
might well bear Steven Ratner’s conclusion in mind that, under international law, compliance
is hard enough to achieve and good enough as a result, given that international law has so few
means on offer to coerce states to guarantee human rights. 71
Follow-up is not per se a means to counter ritualism: much of what figures currently as
follow-up shows the repetitive, formalistic and hollow characteristics of ritualism prevalent in
other parts of human rights monitoring. This does not mean that securing behavioral change
through follow-up is impossible or unrealistic. Such progress can be expected and has been
documented. 72 But in order to identify the conditions for successful follow-up as an
expression of compliance management it seems necessary to better understand the two key
intertwined features of follow-up: on the one hand, the potential of human rights bodies to
tailor appropriate and realistic follow-up mechanisms which are built on implementable and
persuasive recommendations and, on the other hand, states’ postures towards regulatory
human rights frameworks which correspond with the persuasiveness of recommendations and
the authority of follow-up procedures. This presupposes managing and streamlining the
multitude of recommendations, ensuring the adoption of implementable recommendations,
sharing best practices of follow-up among human rights bodies, and establishing structures
within states to facilitate the implementation of recommendations. Some such initiatives on
the international level and within states are underway and they can be expected to contribute
to countering ritualism in human rights law. This may include renewing the arguments for a
legal duty of states to implement recommendations of human rights bodies.
The second four-year cycle of the UPR from 2012-2016, which is currently under way, will
be an important center stage for such follow-up, where the willingness of states and the
ability of the international human rights system to live up to their promises can be tested.
This cycle is largely devoted to following up recommendations made in the first cycle, and
the stakes are high. On the one hand, the UPR has shown its potential for the way it allows
for the “triangulation” 73 of reporting, recommending and follow-up. Some innovations have
been devised in the first cycle, such as the submission of a mid-term report on
implementation by a number of states, and involvement of civil society actors and other
stakeholders (partly funded by the UPR’s Voluntary Fund for Participation) has been high.
On the other hand, the potential for failure is equally present. The sheer number of
recommendations (more than 11,000) which need to be implemented by states and reported
back to the UPR, uncertainties about measuring progress and agreeing on satisfactory
implementation, and the challenge to keep up the momentum generated in the first cycle
indicate that effective follow-up to recommendations remains a challenge. At the end of
UPR’s second cycle, the international human rights system will have to be assessed once
again for the way it is able to counter ritualism.
1
The term “recommendation” is used here to cover these variegated results of supervisory
procedures, including (legally binding) judgments of human rights courts and other (nonbinding) pronouncements.
2
Open Society Justice Initiative, From Judgment to Justice - Implementing International and
Regional Human Rights Decisions (New York: Open Society Foundation, 2010), 11.
3
Ibid.
4
Ibid., 94-95.
5
See Ted Piccione, “The Future of the United Nations Special Procedures,” in Routledge
Handbook of International Human Rights Law, ed. Scott Sheeran and Nigel Rodley (London
and New York: Routledge, 2013), 733.
6
Recent figures are available at
http://www.coe.int/t/dghl/monitoring/execution/Reports/Stats/Statistiques_en.asp (accessed
October 19, 2014).
7
Available at http://www.upr-info.org/en/news/upr-info-and-states-discuss-follow-and-midterm-reporting.
8
See Open Society Justice Initiative, From Judgment to Justice, 11.
9
See, for example, UN Office of the High Commissioner for Human Rights (OHCHR), How
to Follow Up on United Nations Human Rights Recommendations (United Nations: Geneva,
October 2013).
10
See, for example, Open Society Foundation, Brookings Institution and UPR Watch,
Improving Implementation and Follow-Up - Treaty Bodies, Special Procedures, Universal
Periodic Review - Report of the Proceedings (22-23 November 2010), 1,
http://www.opensocietyfoundations.org/reports/improving-implementation-and-followtreaty-bodies-special-procedures-and-universal-periodic.
11
See Open Society Justice Initiative, From Judgment to Justice, 13.
12
See Response of Non-Governmental Organizations to the Dublin Statement on the Process
of Strengthening the United Nations Human Rights Treaty Body System (November 2011),
10, http://www.ohchr.org/EN/HRBodies/HRTD/Pages/Documents.aspx (accessed October
19, 2014).
13
The UN fact sheet on treaty bodies also mentions follow-up more in passing, see OHCHR,
The United Nations Human Rights Treaty System - Fact Sheet No. 30/Rev. 1 (2012).
14
Rules of Procedure of the Inter-American Commission, Art. 48(1).
15
See Nadia Bernaz, “Continuing Evolution of the United Nations Treaty Bodies System,” in
Routledge Handbook of International Human Rights Law, eds. Scott Sheeran and Nigel
Rodley (London and New York: Routledge, 2013), 718.
16
See OHCHR, “Strengthening the United Nations Human Rights Treaty Body System Dublin II Meeting: Outcome Document” (November 2011), 20,
http://www.ohchr.org/EN/HRBodies/HRTD/Pages/Documents.aspx.
17
See Gerd Oberleitner, “Does Enforcement Matter?,” in Cambridge Companion on Human
Rights, eds. Conor Gearty and Costas Douzinas, (Cambridge: Cambridge University Press,
2013), 250-253, and Alexander Thompson, “‘Coercive Enforcement of International Law’”,
in Making Treaties Work. Human Rights, Environmental and Arms Control, ed. Geir Ulfstein
(Cambridge: Cambridge University Press, 2007), 502-523.
18
See Jutta Brunné, “Compliance Control,” Making Treaties Work. Human Rights,
Environmental and Arms Control, ed. Geir Ulfstein (Cambridge: Cambridge University
Press, 2007), 374.
19
See Mathew Davies, “Rhetorical Inaction? Compliance and the Human Rights Council of
the United Nations,” Alternatives 35 (2010): 464.
20
See Hilary Charlesworth and Emma Larking, “Introduction,” in Human Rights and the
Universal Periodic Review: Rituals and Ritualism, eds. Hilary Charlesworth and Emma
Larking (Cambridge: Cambridge University Press, forthcoming).
21
See University of Bristol, “Implementation of UN Treaty Body Concluding Observations:
The Role of National and Regional Human Rights Mechanisms in Europe – Summary and
Recommendations” (September 19-20, 2011), 3.
22
Ibid.
23
Edward R. McMahon, Herding Cats and Sheep: Assessing State and Regional Behavior in
the Universal Periodic Review Mechanism of the United Nations Human Rights Council (July
2010), http://www.upr-info.org.
24
See Open Society Foundation et al., Improving Implementation and Follow-Up, 11.
25
See Open Society Justice Initiative, From Judgment to Justice, 16.
26
See OHCHR, The United Nations Human Rights Treaty System, 29.
27
See Gerd Oberleitner, Global Human Rights Institutions – between Remedy and Ritual
(Cambridge: Polity, 2007), 99.
28
See Open Society Justice Initiative, From Judgment to Justice, 126.
29
See Markus Schmidt, “Follow-Up Mechanisms Before UN Human Rights Treaty Bodies
and the UN Mechanisms Beyond,” in The UN Human Rights Treaty System in the 21st
Century, ed. Anne F. Bayefsky (The Hague: Nijhoff, 2000), 233.
30
On the additional problem that, under the UPR, states are also reviewed with regard to selfproclaimed commitments and pledges see Nadia Bernaz, “Reforming the UN Human Rights
Protection Procedures: A Legal Perspective on the Establishment of the Universal Periodic
Review,” in New Institutions for Human Rights Protection, ed. Kevin Boyle (Oxford: Oxford
University Press, 2009), 82-85
31
See Open Society Foundation et al., Improving Implementation and Follow-Up, 5.
32
See Douglas L. Donoho, “Human Rights Enforcement in the 21st Century,” Georgia
Journal of International and Comparative Law 35, no. 1 (2007): 15-17.
33
See Kurt Herndl, “Zur Frage des rechtlichen Status der Entscheidungen eines
Staatengemeinschaftsorgans: die “views” des Menschenrechtssausschusses,” in Völkerrecht
zwischen normativem Anspruch und politischer Realität, eds. Konrad Ginther, Gerhard
Hafner, Winfried Lang, Hanspeter Neuhold and Lilly Sucharipa-Behrmann
(Berlin: Duncker & Humblot, 1994), 221.
34
Human Rights Committee, General Comment No. 33, UN Doc. CCPR/C/GC/33 (2008),
para. 11.
35
See Herndl, “Zur Frage des rechtlichen Status,” 210 and African Commission on Human
and Peoples’ Rights Information Sheet No. 3, “Recommendations (or Decisions) of the
Commission,” http://www1.umn.edu/humanrts/africa/achpr-infosheet3.html (accessed
October 19, 2014).
36
Report of the Human Rights Committee, UN Doc. A/64/40 (Vol. I) (October 2008-July
2009), para. 232.
37
See Open Society Justice Initiative, From Judgment to Justice, 79.
38
Ibid., 120.
39
See Open Society Foundation et al., Improving Implementation and Follow-Up, 5.
40
See UPR Info, On the Road to Implementation (2012), available at www.upr-info.org
(accessed October 19, 2014).
41
See Office of the High Commissioner for Human Rights, “Strengthening the United
Nations Human Rights Treaty Body System,” 21.
42
See Rule 115 of the Rules of Procedure of the African Commission on Human and
Peoples’ Rights.
43
See Open Society Justice Initiative, From Judgment to Justice, 82-83.
44
See Report of the Human Rights Committee, UN Doc. A/45/40 (1990), Vol. I, 144-145 and
Vol. II, Appendix XI, 205-206. The functions have since been carried over to the
Committee’s Rules of the Procedure.
45
See Open Society Justice Initiative, From Judgment to Justice, 123-124.
Ibid., 141.
47
See Piccione, “The Future of the United Nations Special Procedures,” 733.
48
See Open Society Justice Initiative, From Judgment to Justice, 124-135.
49
OHCHR, How to Follow Up, 37 and 40.
50
See Rule 69(2) of the Rules of Procedure of the Inter-American Court of Human Rights,
and Open Society Justice Initiative, From Judgment to Justice, 80 and 83.
51
See University of Bristol, “Implementation of UN Treaty Body Concluding Observations,”
3.
52
Ibid.
53
See American Convention on Human Rights, Art. 65 and Open Society Justice Initiative,
From Judgment to Justice, 77-78.
54
Rule 115 of the Rules of the Procedure of the African Commission on Human and Peoples’
Rights. See in greater detail Rachel Murray and Elizabeth Mottershaw, “Mechanisms for the
Implementation of Decisions of the African Commission on Human and Peoples’ Rights,”
Human Rights Quarterly 36, no. 2 (2014): 349-372.
55
European Convention on Human Rights, Art. 46.
56
See in greater detail Gisella Gori, “Compliance,” in The Oxford Handbook of International
Human Rights Law, ed. Dinah Shelton (Oxford: Oxford University Press, 2013), 908.
57
See Open Society Justice Initiative, From Judgment to Justice, 46-49.
58
Rule 121(4) of the Rules of Procedure of the African Court on Human and Peoples’ Rights.
59
See OHCHR, “Consultations on Treaty Body Strengthening - Expert Meeting on Petitions”
(Geneva, 29 October 2011), 2,
http://www.ohchr.org/EN/HRBodies/HRTD/Pages/TBSConsultations.aspx.
60
See Gori, “Compliance,” 911.
61
See University of Bristol, “Implementation of UN Treaty Body Concluding Observations,”
4.
62
Ibid.
63
See OHCHR, “Strengthening the United Nations Human Rights Treaty Body System,” 21,
and Working Group on Human Rights in India and the UN, http://wghr.org (accessed
October 19, 2014).
64
The United Kingdom’s Joint Committee on Human Rights is an example for such a joint
approach to implementation, see Open Society Justice Initiative, From Judgment to Justice,
16.
65
University of Bristol, “Implementation of UN Treaty Body Concluding Observation,” 3.
66
Ibid., 4.
67
See Open Society Justice Initiative, From Judgment to Justice, 85-88.
68
Supreme Decree No. 014-2000-JUS (December 22, 2000), Regulate the Procedure to
Follow-Up on the Recommendations of International Human Rights Bodies.
69
Supreme Decree No. 015-2001-JUS, Aprueban el Reglamento del Consejo Nacional de
Derechos Humanos (trans: Approval of the Regulations of the National Human Rights
Advisory) (Peru) (April 27, 2001).
70
See Open Society Justice Initiative, From Judgment to Justice, 88.
71
See Steven Ratner, “Persuading to Comply: On the Deployment and Avoidance of Legal
Argumentation,” in Interdisciplinary Perspectives on International Law and International
Relations - The State of the Art, eds. Jeffrey L. Dunoff and Mark A. Pollack (Cambridge:
Cambridge University Press, 2013), 586.
72
On the theoretical underpinning see Harold Koh’s concept of a transnational legal process:
Harold Hongju Koh, “How is International Human Rights Law Enforced?,” Indiana Law
Journal 74 (1999): 1397-1417.
46
73
Miloon Kothari, “From Commission to the Council: Evolution of UN Charter Bodies,” in
The Oxford Handbook of International Human Rights Law, ed. Dinah Shelton (Oxford:
Oxford University Press, 2013), 618.