In January 2019, New Zealand’s compliance with international human rights treaties and norms will once again come under scrutiny at the United Nations Universal Periodic Review (UPR). Ahead of this five-yearly review by the UN Office of the High Commissioner for Human Rights (OHCHR) in Geneva, in October the New Zealand Human Rights Commission facilitated the first-ever in-country pre-sessions held in three locations around NZ.
Pre-sessions are promoted as the largest civil society platform for human rights advocacy in the world, and are intended to allow NGOs and activists on the front lines of rights struggles to have their voices heard. While attending the inaugural Wellington pre-session demonstrated the vast potential of these pre-sessions, it also exposed clear limitations of the UPR process that risk hindering the universal enjoyment of rights.
At all stages of the UPR, it is states that dictate the rules of the game, while civil society is largely sidelined. State governments produce the National Report that is the basis for review by the UN’s Human Rights Council Working Group of states in Geneva, and it is the national government of the day that addresses the Working Group, before responding to questions from Recommending States. There is no opportunity for civil society to take the floor at the UPR: instead, official civil society participation in the UPR is via submissions from civil society organisations made six to seven months ahead of the review. These submissions are then condensed into a absurdly brief 10-page ‘Stakeholder Summary’ by OHCHR to accompany the National Report and UN Report.
The problems with this approach are evident: civil society groups may not have the capacity to prepare a submission, for may find themselves limited by stringent word limits, while others are simply left unaware of the entire process. Furthermore, the six-to-seven month time-lag between submissions and the UPR session means information on topical issues can be lacking.
The purpose of in-country pre-sessions however is to demonstrate that the involvement of civil society need not be hindered by these limitations. By encouraging civil society engagement and bottom-up advocacy, pre-sessions are intended to ensure the UPR functions as an effective mechanism for monitoring rights rather than simply a platform for state bravado and self-congratulation. At the Wellington pre-session, civil society organisations were encouraged to participate more actively in the UPR process by continually monitoring government implementation of recommendations between cycles, attracting media attention, concentrating public pressure on government, participating in the government-led national consultation stage, making targeted joint submissions and lobbying Recommending States (to challenge non-implementation or make new recommendations on critical issues).
Yet all this demands a level of preparation and resource that can only be described as aspirational for most civil society organisations. The groups represented at the pre-sessions were predominately volunteer-based local groups that are already minimally resourced: expecting these groups to step into a new role as lobbyists and influencers may be unreasonable, especially when opportunities for influence are limited in the first place.
The Ministry of Foreign Affairs and Trade (MFAT) proudly announced at the pre-session that they had hosted eight public consultations around the country and interviewed a whopping 250 secondary school students as part of their obligation to undertake nationwide consultation on human rights in New Zealand. Yet almost none of the civil society groups present were aware of these consultations, nor of the draft National Report being made available on MFAT’s website for public review during the month of July: perhaps why they received a pathetic thirteen submissions on the draft.
Similarly, at the pre-session civil society organisations were urged to form coalitions and make joint submissions (as these would not be hindered by the crippling word limits for individual submissions). Well-meaning as this was, the elephant in the room remained the obvious lack of funding and resource faced by practically all of the groups present. While organisations like Women’s Refuge are already stretched to their limit fulfilling their on-the-ground mandate of protecting those on the frontlines of human rights abuses, can they really be expected to take the time out of their valuable work to draft lengthy, well-researched submissions to be sent to bureaucrats nearly 20,000km away? There exists no UN funding to support civil society organisations making submissions, nor any funding to subside travel to either the official pre-session in Geneva or the review itself.
Despite these barriers, pre-sessions remain a valuable attempt to up-skill and empower civil society groups to have their voices heard at the UPR. The intention of pre-sessions, to amplify bottom-up voices, is as important in New Zealand as anywhere else. It’s almost ironic that our status on the world stage, as the paragon of a rights-respecting state has fueled such complacency and ignorance about rights that activist and civil society groups continue to struggle to assert reproductive rights, indigenous rights, and rights of vulnerable minorities such as children, women and the elderly. At the pre-session, civil society representatives were able to pull back the curtain on the reality of rights in New Zealand and tell diplomats that 51% of our prison population is Māori, 30% of our children are living in households below the poverty line, 43.3% of our disabled youth are not in employment, education or training, we retain a significant gender pay gap of 9.2%, and much else besides.
Most civil society representatives walked away from the pre-session with a better idea of how they could bring their issues to the table, whether by meeting with diplomats, circulating fact sheets, making submissions or pressuring government with specific recommendations. A limited number of the groups present were able to present to the diplomats present (representing 33 different governments) who would then report back on the issues raised to their home governments. The hope is then that the issues raised will translate to specific recommendations by Recommending States in January’s UPR.
The UPR process essentially demands that civil society groups lobby foreign governments to lobby their governments: to an outside observer, this can seem absurdly backwards. Yet UPR pre-sessions, by allowing civil society groups an opportunity to leverage their influence against their government on the world stage, have yielded many success stories. Pressure applied during pre-sessions has in Morocco given rise to the establishment of a national preventative mechanism against torture: in Fiji, to the abolition of the death penalty; in Thailand and South Korea, to the criminalisation of marital rape, and in the Seychelles and Nauru, to the decriminalisation of same-sex sexual activity.
The approaching 70th Anniversary of the Universal Declaration of Human Rights serves as a reminder that human rights remain for the most part aspirational, even in a country like New Zealand. New Zealand’s first pre-sessions gave cause to hope that the UPR, despite its obvious shortcomings, can be an effective mechanism for propelling us towards a world where rights are truly enjoyed by all.