183CASO: MIGUEL CORNELIO SÁNCHEZ CALDERÓN

The third and final document to be produced and disseminated is the Summary of

Stakeholders’ Information (‘Stakeholder Report’).82 _{Both the UN and the US State Department}

agree that a ‘Stakeholder’ includes NGOs (also known as Civil Society Organisations ‘CSOs’)

and National Human Rights Institutions (‘NHRIs’),83 _{although the US does not currently have}

an NHRI and has rejected calls during the UPR to create one.84 _{Civil society is encouraged to}

play an integral role in the UPR process and this includes each Stakeholder submitting a five- page submission. Resolution 5/1 sets out that this should be ‘[a]dditional, credible and reliable information provided by other relevant [S]takeholders’.85 _{There is no specific definition}

provided of ‘credible and reliable information’, although guidance has been produced by the OHCHR, which Stakeholders can use as advisory material when compiling their individual

reports.86 _{In practice, the OHCHR will consider all of the individual Stakeholder submissions}

– of which there were 103 in 201087 _{and ninety-one in 2015 for the US} 88 _{– and summarise}

them into a ten-page document. The individual reports are an important part of the UPR mechanism as they provide a wealth of information on a range of human rights issues on the ground, including the death penalty. Part II of this thesis analyses these individual reports to provide an insight as to why it is imperative that the Stakeholders’ voices are heard throughout the UPR.

Similar to the Compilation Report, there is little literature on how the OHCHR decides what information will be selected and rejected from the individual reports to go into the final

81 _{Compilation Report 2010 (n 85) para 25; UNHRC, ‘Compilation of UN Information – United States of America’ (2 March 2015)}

UN Doc A/HRC/WG.6/22/USA/2 para 17 [hereinafter referred to as ‘Compilation Report 2015’].

82 _{UNGA Res 5/1 (n 14) 15(c).}

83 _{Ibid para 3(m); US Department of State, ‘Universal Periodic Review Frequently Asked Questions’}

<www.state.gov/j/drl/upr/faq/index.htm> accessed 24 August 2018. The OHCHR also includes ‘human rights defenders, academic institutions and research institutes, regional organizations, as well as civil society representatives’ in that list, see OHCHR, Universal Periodic Review: Information and Guidelines for Relevant Stakeholders’ Written Submissions <www.ohchr.org/Documents/HRBodies/UPR/TechnicalGuideEN.pdf> 2 accessed 24 August 2018. For more information on NHRIs, see OHCHR, ‘OHCHR and NHRIs’ <www.ohchr.org/EN/Countries/NHRI/Pages/NHRIMain.aspx> accessed 24 August 2018.

84 _{UNHRC, ‘Report of the Working Group on the Universal Periodic Review – United States of America’ (4 January 2011) UN Doc}

A/HRC/16/11 paras 92.72-92.74 [hereinafter referred to as ‘Report of the Working Group 2010’]; UNHRC, ‘Report of the Working Group on the Universal Periodic Review – United States of America’ (20 July 2015) UN Doc A/HRC/30/12 paras 176.75-176.90 [hereinafter referred to as ‘Report of the Working Group 2015’].

85 _{UNGA Res 5/1 (n 14) para 15(c).}

86 _{See, OHCHR, Universal Periodic Review: Information and Guidelines for Relevant Stakeholders’ Written Submissions}

<www.ohchr.org/Documents/HRBodies/UPR/TechnicalGuideEN.pdf> accessed 24 August 2018.

87 _{UNHRC, ‘Summary of Stakeholders Information – United States of America’ (14 October 2010) UN Doc}

A/HRC/WG.6/9/USA/3/Rev1 [hereinafter referred to as ‘Stakeholder Report 2010].

88 _{UNHRC, ‘Summary of Stakeholders Information – United States of America’ (16 February 2015) UN Doc}

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Stakeholder Report.89 _{However, when Julie Billaud undertook a three-month internship with}

the drafting team, she noted that the OHCHR cannot synthesise any of the individual submissions and therefore the report is ‘made up of a collection of direct quotes extracted

from NGOs’ contributions’.90 _{Furthermore, Hilary Charlesworth and Emma Larking have noted}

that the drafting teams have a ‘genuine desire’ to ‘give consideration to issues raised by

[S]takeholders who might not otherwise be heard’.91 _{This is imperative to the authenticity of}

the Stakeholder Report, given that some NGOs will not always have the funds to attend the review in Geneva. It is also a way of NGOs voicing the human rights situation on the ground which, in turn, legitimises the UPR process.

There have been particular criticisms of the five-page limit on individual submissions, as it has caused NGOs to feel ‘forced to be “selective and strategic” in identifying a few key issues’ to include in its individual report.92 _{In fact, many NGOs will attach a number of lengthy}

appendices, and will direct readers to even lengthier submissions on their own websites.93 _For

example, United States Human Rights Network (‘USHRN’) attached twenty-five appendices

to its 2010 submission to the US UPR.94 _{The main issue with this is that most UN member}

states will not read these additional documents and therefore key information may be missed. Furthermore, the 2010 review saw much repetition from Stakeholders on the issue of the death penalty. For example, both USHRN and Amnesty International (‘AI’) advised that there continues to be executions of the mentally disabled and criticised the poor conditions on death row.95 _{To limit this issue to some extent, the second cycle of the UPR saw more NGOs}

collaborating to provide joint submissions rather than individual reports. For example, in 2015, USHRN provided a joint submission - ‘JS41’ - which was a ‘summary of [thirty-four]

[S]takeholder reports submitted by our members and partners’.96 _{As this increases the}

maximum page limit from five to ten pages, these joint submissions were hoped to have a

89 _{Lawrence C Moss, ‘Opportunities for Nongovernmental Organization Advocacy in the Universal Periodic Review Process at}

the UN Human Rights Council’ (2010) Journal of Human Rights Practice Vol 2, Number 1, 122 –150, 132.

90 _{Jane K Cowan, ‘The Universal Periodic Review as a Public Audit Ritual: An Anthropological Perspective on Emerging Practices}

in the Global Governance of Human Rights’ in Hilary Charlesworth and Emma Larking (eds), Human Rights and the Universal

Periodic Review: Rituals and Ritualism (CUP 2015) 75.

91 _{Charlesworth & Larking (n 4) 17.}

92 _{Cowan, ‘The Universal Periodic Review as a Public Audit Ritual’ (n 96) 61.} 93 _Ibid.

94 _{United States Human Rights Network, ‘United States Universal Periodic Review Stakeholder Submission Annex 5 Death}

Penalty’ (2010)

<http://lib.ohchr.org/HRBodies/UPR/Documents/session9/US/USHRN_UPR_USA_S09_2010_Annex5_Death%20Penalty%20J oint%20Report%20USA.pdf> accessed 24 August 2018.

95 _{Stakeholder Report 2010 (n 93) para 30.}

96 _{Joint Submission 41, ‘United States Universal Periodic Review Stakeholder Submission’ (2015)}

<www.ohchr.org/EN/HRBodies/UPR/Pages/UPRUSStakeholdersInfoS22.aspx> accessed 24 August 2018. USHRN was the main Stakeholder collating the data for JS41.

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greater impact upon the UPR, allowing NGOs to jointly and potentially more successfully

monitor the implementation of recommendations as they are tasked to do by Resolution 5/1.97

The number of joint submissions in the US UPR more than doubled from twenty-five in 2010 to fifty-two in 2015,98 _{and while this is certainly a positive step, in terms of the death penalty}

this tactic appears not to have had the desired effect. In 2010, the Stakeholder Report cited

five NGOs99 _{which raised eight different issues regarding the death penalty.}100 _{However, in}

2015, the Stakeholder Report again cited five NGOs or joint submissions,101 _{but between them}

only raised six issues regarding capital punishment.102 _{Therefore, despite the use of joint}

submissions, less information was cited in the final report regarding the death penalty. This is not because the capital system in the US is not being raised in the individual Stakeholder submissions, but because only certain information is being referred to in the final Stakeholder Report. For example, AI’s original Stakeholder submission stated that, ‘[i]n numerous cases, prisoners have gone to their deaths…where inadequate legal representation for indigent defendants meant that the sentencing jury had not been presented with the full array of mitigating evidence available in the case’.103 _{However, this was not relayed in the final}

document. To understand why certain issues are not included in the report, more transparency from the OHCHR is needed regarding the process utilised to decide how it selects the content of the final report. This idea is explored further in Part II.

This shortage of information regarding the death penalty in the 2015 Stakeholder Report had an effect on the reduced discussion of capital punishment throughout the rest of the UPR. In

the rankings of ‘most recommended upon issues’, the death penalty slipped from 4th _{place in}

2010 to 5th _{in 2015.}104 _{This indicates that what makes it into the Stakeholder Report will be}

influential on the recommendations, as less information was relayed into the final Stakeholder Report in 2015 than in 2010. As such, the OHCHR should aim to ensure that the Stakeholder Report is as comprehensive as possible.

~

97 _{UNGA Res 5/1 (n 14) para 33; UPR Info, ‘NGO Written Submission for the Universal Periodic Review Information for NGOs’}

<www.upr-info.org/sites/default/files/general-document/pdf/upr_factsheet_2_ngo_submission_e.pdf> accessed 24 August 2018.

98 _{Stakeholder Report 2010 (n 93); Stakeholder Report 2015 (n 94).}

99 _{Stakeholder Report 2010 (n 93) para 30, citing USHRN, ABA, AI, ACLU, and AHR.} 100 _{Stakeholder Report 2010 (n 93).}

101 _{Stakeholder Report 2015 (n 94) para 30, 37, citing AI, HRW JS29, JS41, and JS17.} 102 _{Stakeholder Report 2015 (n 94).}

103 _{Amnesty International, ‘United States Universal Periodic Review Stakeholder Submission’ (2015)}

<www.ohchr.org/EN/HRBodies/UPR/Pages/UPRUSStakeholdersInfoS22.aspx> accessed 24 August 2018.

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As would be expected, the drafting of these three documents and the decisions of what to include and exclude involves ‘disagreements and conflicts, and negotiations and

compromises’.105 _{However, whilst the process for preparing the documents in the UPR is not}

an easy one, getting it right is imperative to ensuring the smooth running of the review.