Human rights in English and Welsh courts – the Universal Periodic Review

Every four and a half years, a state will participate in the United Nations ‘Universal Periodic Review’ (UPR).

The state’s human rights situation is reviewed by its peers – other states – in an interactive dialogue.

Unlike other international human rights mechanisms which are limited to monitoring specific issues (the UN special rapporteurs) or treaties (UN treaty bodies), the UPR’s remit is very broad.

A state is reviewed against its human rights obligations in:

• UN Charter
• Universal Declaration of Human Rights
• human rights treaties it is party to
• voluntary pledges made by the state
• international humanitarian law

The state under review will receive recommendations from its peers and it may choose to ‘accept’ (implement) or ‘note’ them.

Explore previous reviews

Search and filter all states’ UPR recommendations

The UPR is not a judicial body and recommendations are not binding.

Yet, we are beginning to understand the UPR’s role in international law and how it could be used in the domestic courtroom.

How the UPR has been used so far

The UPR has been cited in nine reported cases in England and Wales.

In eight of these cases, judges referred to UPR documentation as evidence of the human rights situations in other countries.

In most of these, the UPR is used to determine the risk of refoulment (forcible return of refugees or asylum seekers to a country where they are likely to be subject to persecution).

The Rwanda case

In the Rwanda case, one issue for the UK Supreme Court (UKSC) was whether Rwanda was a safe third country.

After finding that it was not, the court referenced a recommendation made by the UK to Rwanda at its UPR in 2021 to investigate ‘extrajudicial killings, deaths in custody, enforced disappearances and torture’.

These cases suggest that immigration lawyers may find the UPR a useful tool in asylum cases.

Al-Waheed

In Al-Waheed, the UPR was used in treaty interpretation.

The UK Supreme Court ruled that the European Convention on Human Rights (ECHR) did not have extraterritorial effect, even in the context of overseas military operations.

However, Lord Reed noted that article 31(3)(b) of the Vienna Convention on the Law of Treaties requires ‘subsequent practice’ to be taken into account in interpreting treaties.

Lord Reed (at [311]) cites a UPR recommendation by Switzerland to the UK in 2008 to highlight the ECHR’s ‘continued relevance’:

“Switzerland has questioned the United Kingdom’s claim that the provisions of the Convention need to be qualified, in the context of military operations overseas … and recommended that the United Kingdom should consider that any person detained by armed forces is under the jurisdiction of that state, which should respect its obligations concerning the human rights of such individuals.”

Though a dissenting judgment, Lord Reed’s analysis reveals the UPR to be an interpretative aid.

In areas of practice where human rights treaties are routinely cited, such as immigration law, lawyers may find it useful to familiarise themselves with the UPR and recommendations that concern treaty obligations.

How the UPR could be used in the future

The most important document for using the UPR in any form of legal proceedings is the report of the working group.

It’s produced after a state’s review and contains the recommendations it received. These could be used as a source of international human rights law in several ways.

Customary international human rights law (CIHRL)

Accepted recommendations can be used to identify rules of CIHRL.

The UPR is already being used by the International Committee of the Red Cross (ICRC) for this purpose.

The International Law Commission reaffirmed a two-element rule for identifying custom:

• state practice, which can include resolutions of an international organisation, and
• acceptance that the practice in question is law

UPR recommendations in isolation are not useful for this purpose.

But a series of accepted recommendations on the same subject by many states can constitute evidence of CIHRL.

Stopping state-inflicted corporal punishment of children

An example is the series of accepted recommendations on ceasing state-inflicted corporal punishment of children.

A rule of CIHRL has emerged to the effect that corporal punishment constitutes inhuman or degrading treatment.

Domestic courts may use CIHRL once a chain of accepted recommendations on a single topic with similar textual interpretations has been identified (see Lord Sumption in Rahmatullah at [252]).

Identifying interpretations of existing human rights obligations

A series of UPR recommendations can also be used to identify interpretations of existing obligations in international human rights law.

In some specific areas relating to children’s rights, it is possible to identify a chain of accepted recommendations. For example, recommendations that promote alternatives to custodial sentences for juvenile offenders.

This is useful for highlighting accepted trends in interpretation, rather than suggesting that a single given interpretation is authoritative (see Al-Waheed).

Legitimate Expectation

An individual accepted recommendation could create a legitimate expectation on a state.

This legitimate expectation could then give rise to a judicial review, if it is sufficiently precise and related to a future change in law and policy.

However, this could prove difficult as recommendations can be very vague.

Why you should use the UPR

The UPR process is the only universal human rights process. Every single state’s human rights record has been reviewed at least once.

There are various sources of law and standards about what rights are or should be protected.

The UPR process can be invaluable for identifying existing and emerging rules and standards in international human rights law.

Cases in England and Wales that have cited the UPR:

• R (AAA (Syria)) v SSHD [2023] UKSC 42; R (AAA (Syria)) v SSHD [2023] EWCA Civ 745
• R (AAA (Syria)) v SSHD [2022] EWHC 3230 (Admin)
• Deutsche Bank AG (London Branch) v Central Bank of Venezuela [2022] EWHC 2040 (Comm)
• Al-Waheed v Ministry of Defence and Mohammed (Serdar) v Ministry of Defence and another (No 2) (Qasim and others intervening) [2017] 2 WLR 327
• BM and Others v SSHD [2015] 00293 (IAC)
• K, J, Miss K v SSHD and SSHD v AS [2013]
• HM, RM, HF v SSHD [2012]
• Mohammed Fakhar Al Zaman Lodhi v SSHD [2010] EWHC 567 (Admin)

The UPR has also been cited by international courts, such as the European Court of Human Rights on nine occasions.