The judiciary's key role in UPR implementation

During the 57^th session of the Human Rights Council, on 27 September 2024, with the support of UPR Info and the International Bar Association’s Human Rights Institute (IBAHRI), the permanent missions of Norway, Armenia and Fiji assembled States, members of civil society and other stakeholders to engage in a side-event regarding the role of the judiciary in advancing human rights and to discuss the different approaches legal professionals can take to effectively contribute to the UPR.

While the judiciary’s engagement in the UPR is not yet a widespread practice, it holds an untapped potential in ensuring the implementation of human rights recommendations. Judges and courts are key actors in translating UPR recommendations into enforceable legal changes. As the gatekeepers of justice, they ensure that international commitments are upheld within domestic legal systems, not just as symbolic gestures but as actionable commitments. Thus, the judiciary has the power to turn simple words on paper into meaningful protection for citizens, moving from political commitments to legal implementation.

Judicial engagement is critical for a full implementation of UPR recommendations. The actions of judges are necessary to address issues related to access to justice, ensure the right to a fair trial and conduct investigations into human rights violations," said Mona M'Bikay, Executive Director of UPR Info.

As H.E. Mr. Tormod Cappelen Endersen, Ambassador and Permanent Representative of Norway, pointed out, the UPR serves as a “hard stick” for national human rights progress. No State can claim to be free of human rights challenges. The Ambassador emphasized the multi-stakeholder and circular nature of the process, starting within the country and involving diverse actors. According to him, effective UPR impact hinges on the participation of all relevant actors, including the judiciary.

Aligning with Mona M’Bikay’s, executive director of UPR Info, statement, Ms. Francesca Restifo, Senior Human Rights Lawyer at IBAHRI, elaborated on the judiciary’s potential to engage at multiple levels of the UPR mechanism by:

Participating in national consultations to provide legal expertise on judicial updates, gaps in jurisprudence, and case laws;
Joining the official State Delegation to identify judicially relevant recommendations or following the interactive dialogue through the webcast;
Attending consultations with the State under Review to advise on UPR recommendations pertaining to their legal expertise;
Reflecting accepted recommendations in judicial decisions and practices, and enforcing their own interpretation of international parameters to read domestic law.

This is further detailed in the Tips to enhance judicial engagement with the United Nations Universal Periodic Review, developed by IBAHRI in collaboration with UPR Info. This concise guide offers practical recommendations to support States and other stakeholders in involving the judiciary within the UPR mechanism.

Good Practices

There are already promising examples of judiciary engagement in the UPR process. In countries like Indonesia, Morocco, and Poland, the judiciary has been actively integrated into the official State Delegation, providing legal leadership. Additionally, states such as Moldova and Italy have taken further steps by incorporating the judiciary into their National Mechanism for Implementation, Reporting, and Follow-up (NMIRF), ensuring that judicial expertise is part of the ongoing monitoring and enforcement of UPR recommendations.

UPR recommendations have increasingly addressed issues linked to the role of judges and the independence of the judiciary. For instance, during the 4th cycle, Uruguay urged Mexico to "Continue efforts to conduct thorough and independent investigations into all allegations of enforced disappearance, bring perpetrators to justice and ensure reparations to victims, particularly the families of missing persons." Similarly, in the 3rd cycle, Italy recommended that Turkey take steps to strengthen the independence of its judiciary.

In The Gambia, the judiciary plays a crucial role in supporting the implementation of UPR recommendations by integrating international human rights treaties into domestic law. While international law is not directly applicable due to the country's dualist legal system, once ratified, these treaties must be domesticated through an act of the National Assembly to have legal effect. In recent years, the judiciary has made significant progress in improving access to justice by deploying judicial officers across all regions of the country. Additionally, the establishment of a Judicial Prison Visiting Committee has helped address delays in criminal trials by regularly reviewing the status of detainees and ensuring timely justice for those in remand or awaiting appeal.

"The National Human Rights Commission also can play a great role in terms of promoting access to justice, because it is an independent state institution that is mandated to promote and protect human rights in the Gambia, " said Mr. Mansour Jobe, Director of Legal Affairs and Investigation at the National Human Rights Commission (NHRC) of The Gambia at the side event.

The NHRC works closely with the Judiciary of The Gambia, the National Agency for Legal Aid, and the Gambia Bar Association to assess progress and identify challenges in access to justice. Through advisory notes, such as advocating for the repeal of restrictive laws like the Public Order Act and calling for the abolition of the death penalty, the NHRC has influenced key legal reforms. The Commission also files amicus curiae briefs and considers joining legal cases that affect human rights, such as defending the Women Amendment Act, which prohibits female genital mutilation.

Finally, Mr. Roland Kempfle, Judge and Vice-president of the International Association of Judges, reflected on the judges’ objectivity, based on the law. However, he pointed out the gaps in judicial knowledge of international human rights law and advocated for the development of training programs to bridge these gaps. Additionally, as the inclusion of judges in the UPR depends on other State powers as well, he called on States to implement formal mechanisms to include them. Mr. Roland Kempfle further emphasizes the Tips as a crucial guiding tool to address those challenges.