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Sweden and the Universal Periodic Review in the Human Rights Council


During its tenth session the Working Group[1] on the Universal Periodic Review (UPR) in the Human Rights Council (HRC), on 7 May 2010 held its first review of the Swedish human rights record. Sweden had submitted its report on national protection of human rights on 22 February 2010.[2] During the review a number of noteworthy issues were discussed regarding the human rights situation in Sweden, and they were summarized in the draft report of the Working Group on 14 May 2010.[3] In the following I will shortly present the Universal Periodic Review process and then draw the attention to some of these problems, which despite the high reputation of Sweden’s human rights record are recurring ones. 

On the Universal Periodic Review

The Universal Periodic Review is a process which involves a review of the human rights records of all 192 UN Member States once every four years; 48 States are being reviewed every year.[4] The UPR is a State-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfill their human rights obligations. The UPR was created in March 2006 by the UNGA[5] as part of the Human Rights Council itself. It is a co-operative process which started in 2008 and by 2011 will have reviewed the human rights records of every country.[6] Germany was reviewed during the 4th session in 2009,[7] Norway during the 6th Session in 2009,[8] Finland during the 1st Session in 2008.[9],[10] The UPR is one of the key elements of the new Council which reminds States of their responsibility to fully respect and implement all human rights and fundamental freedoms. The overall aim of the UPR is to improve the human rights situation in all countries and address human rights violations wherever they occur on the basis of equal treatment for every country.

How the UPR Works

The reviews are carried out by the UPR Working Group composed of the 47 Council members. Each review is facilitated by groups of three States, or “troikas”, drawn by lot who act as Rapporteurs.[11] For Sweden these three States were Mauritius, Ukraine and Uruguay.[12] The review is conducted on the basis of three different documents:[13] 1) information, usually a report, provided by the State under review; 2) information contained in the reports of independent human rights experts and groups, known as the Special Procedures, human rights treaty bodies, and other UN entities; 3) ‘credible and reliable information’ from other stakeholders including NGOs and national human rights institutions. In the case of Sweden the rapporteurs had submitted questions of some member States[14] prior to the review. Interactive dialogue between Sweden (as the country under review) and the Council took place in the working group.

The format of the outcome of the review will be a report consisting of a summary of the proceedings of the review process,[15] conclusions and/or recommendations, assessment of positive developments and the challenges faced by the country, sharing of best practices and the voluntary commitments of the State concerned.[16] The result is thus unsurprisingly always non-binding due to the co-operative character. The country under review is fully involved in the adoption of the final report; this in particular means that the country may express which recommendations enjoy its support and those recommendations that do not. Both will, however, be included in the report to be adopted by the Council.[17] It is expected that the final report is implemented by the country under review as the subsequent review should focus, inter alia, on the implementation of the preceding outcome.[18] After exhausting all efforts to encourage a State to co-operate with the UPR mechanism, the HRC has the possibility to address cases of persistent non-cooperation with the mechanism.

The Background Material

The draft report was based on the consideration of the report by Sweden, a compilation prepared by the Office of the United Nations High Commissioner for Human Rights (OHCHR)[19] and a summary of additional, credible and reliable information provided by other relevant stakeholders.[20] The compilation contained views by organs such as Committee on the Rights of the Child (CRC), the Committee on the Elimination of Racial Discrimination (CERD), the Committee on Economic, Social and Cultural Rights (CESCR), the Committee on the Elimination of Discrimination against Women (CEDAW) and the Committee against Torture (CAT). Here issues such as the lacking ratification of the ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries[21] and the reported increase in the number of racially motivated hate crimes were criticised.[22] The summary contained opinions from inter alia the United Nations Association of Sweden, the Saami Council,[23] Civil Rights Defenders, the Swedish Section of the Women’s International League for Peace and Freedom. They criticised mainly the lack of a special criminalization of torture and the lack of implementation of the Rome Statute of the ICC and in particular of its substantive law.[24]

The Draft Report on Sweden[25]

The report is split into two major parts: In a first part, the State under review, Sweden, makes a presentation on the situation of human rights protection in Sweden. Here the Swedish delegation chose to focus on some of the major issues and reports on progress that were made and the legal developments of recent time that deal with those issues. As an example, Sweden reported on the current status of human rights protection in its legal order,[26] recent[27] and planned legal reforms[28] and policies supporting human rights protection in Sweden.[29] This is followed by a summary of the interactive dialogue in the working group[30] and responses by Sweden. In a second part the draft report contains the conclusions and recommendations to Sweden that followed from the dialogue.[31] Three main issues that were discussed in the dialogue and mentioned in the report deserve to be highlighted here. These are the situation of the Sami, the standing of the Rome Statute in the Swedish legal order and the establishment of a national human rights institution.

The Situation of the Sami

The author has reported on earlier occasions on the situation of the Sami, the indigenous people of northern Europe, in Sweden.[32] The draft report, in the summary of the interactive dialogue, recurrently underlines the difficult situation for the Sami and in particular as regards their right to traditional lands and natural resources. On the other hand, for example Canada, underlined that it together with Sweden shared similar concerns regarding the situation of indigenous people.[33] Cuba criticized the discrimination of the Sami,[34] New Zealand, while welcoming the new Act on National Minorities and Minority Languages,[35] noted that land issues of the Sami people had not been resolved.[36] Bolivia, South Africa, Turkey, Austria, Norway, The Netherlands and China expressed concern over the Sami’s participation in political decisions affecting them and their discrimination in Sweden. The conclusions that were drawn and recommendations given in this regard met the support of Sweden, which will examine the need to clarify the legal consequences of the ratification of ILO Convention No. 169, amending the constitution to explicitly recognize the Sami people, and continue to develop mechanisms regarding the dialogue and consultation with the Sami, and finding measures to ensuring their right to land and cultural life.

The Sami are currently only considered a minority in the Swedish constitution (cf. Chapter 1 Art. 2(5) IG) giving them some protection of their cultural and social life, but not a degree of self-determination that a people would have. Already there has been suggested an amendment to the constitution that, if it will be adopted, would explicitly recognize the Sami as a people.[37] In 1977 the Sami were recognized as an indigenous people by the Swedish parliament, but the lack of this recognition in the constitution is partially explained by the rights that indigenous people enjoy under international law.

The problem with the non-ratification of the ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries is a recurring one. Sweden has chosen not to ratify the Convention because it would mean that it had to recognize ‘[t]he rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy’ (see Art. 14 (1) Convention). Furthermore the Convention demands that measures are being taken that safeguard the right of the Sami to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities (Art. 14(2) Convention). Both kinds of land, those which the Sami traditionally occupy and those to which they have traditionally had access, are today often owned by private land owners or the State itself. This especially applies to the latter category, which is the so-called winter grazing lands of reindeers, the main income of the Sami, which are further away from the mountains where the Sami live predominantly in the summer and which are instead closer to ordinary, often privately owned farming and forestry lands. Whereas the question of ownership and possession of lands traditionally occupied was largely settled by a government commission in 2006,[38] the land to which traditionally access existed is much more difficult to determine. It might be said that reindeer husbandry is an activity through which the Sami have traditionally had access to certain areas. The now private owners of this land, however, would (rightfully) see any usage of their lands for reindeer husbandry as a violation of their constitutionally protected property (cf. Chapter 2 Art. 18 IG). As the recent case before the ECtHR and the still pending cases before the Swedish national courts have shown,[39] these questions are far from settled. It seems, however, due to the complexity and range of these matters that a solution can only be reached if and when the legislator steps in. This would also correspond to the historic responsibility for the current situation, which arguably lies with the State. Thus the announcement that the Government will look into these matters is a welcoming step in the right direction.

The Standing of the Rome Statute in the Swedish Legal Order

Sweden on 7 October 1998 signed and on 28 June 2001 ratified the Rome Statute for the ICC.[40] When the Statute was ratified a Government investigation suggested that Sweden adopt a new law which included all the crimes contained in the Statute,[41] something that never, however, materialized.[42] Instead the current Swedish legislation on international criminal law comprises the following:

  1. Chapter 22 Art. 6 Swedish Penal Code states responsibility for ‘[a] person guilty of a serious violation of a treaty or agreement with a foreign power or an infraction of a generally recognised principle or tenet relating to international humanitarian law concerning armed conflicts’.
  2. Genocide is criminalized under the Genocide Act (1964:169),[43] which uses a definition that corresponds with the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.[44]

Considering the fact that Chapter 22 Art. 6 Swedish Penal Code only covers crimes against humanitarian law, it is noteworthy that Sweden thus does not have any specific law covering crimes against humanity. According to the Swedish Government such offences are already criminalized under existing Swedish law, for example there is no explicit provision on torture as this is covered by the provision on assault.[45] What is doubtful is whether the existing provisions under which an international crime may be subsumed, provide the appropriate punishment for these, arguably more serious crimes than ordinary assault. Furthermore it may be and has been questioned if some of the actions defined in the Rome Statute as crimes against humanity, at all can be subsumed under existing Swedish criminal law; examples are deportation or forcible transfer of population, sexual slavery and forced pregnancy.[46] It seems that there is no appropriate corresponding provision in substantive Swedish criminal law. What is even more problematic is that the Swedish courts would often have to rely on determining criminal responsibility according to ‘generally recognised principle or tenet relating to international humanitarian law concerning armed conflicts’ (Chapter 22 Art. 6 Swedish Penal Code), instead of clear substantive criminal law as in the Rome Statute. In view of the principle of legality this poses serious concerns.

Hence in the draft report Sweden is urged, primarily by Canada, to enact the crimes as set out in the Rome Statute. As this criticism is known in Sweden and e.g. shared by a broad opinion among Swedish legal scholars and because Sweden has shown itself favourable of making changes, some movement in this area can be expected in the near future.

The Existence of a National Human Rights Institution

Sweden has on earlier occasions[47] been criticised by the HRC because it has not yet established an independent national institution with a broad competence in the area of human rights in accordance with the Paris Principles (these are the so-called Principles relating to the status of national institutions contained in the UNGA Res. 48/134)[48]. In January 2009 the four previously existing Ombudsmen against Discrimination merged into a single Equality Ombudsman with competence to receive and examine individual complaints concerning alleged cases of discrimination, including on the grounds of age and transgender identity or expression. This competence is, in the view of the HRC, too narrow.

Sweden expressed its willingness to consider the establishment of such an institution, but will do so only after the Delegation for Human Rights in Sweden, established by the Government after the presentation of a new National Action Plan for Human Rights in 2006, has delivered its final report on how the public sector can be offered continued support in its work towards achieving full respect for human rights.


The draft report by the Working Group shows the process of the Universal Periodic Review in practice. Many of the issues that are being raised by States in the dialogue phase are less concerns witnessing of structural problems in Sweden, such as discrimination of minorities or migrants. Rather they are most certainly outcries, indeed sometimes exaggerated ones, against individual reports of occurrences. The dialogue between members of the HRC is, however, intended to show that also developed democracies are subjected to the same compliance procedures as developing countries, where often more serious violations occur.

Nevertheless, some issues, such as the lacking incorporation of the substantive law of the Rome Statute in Swedish national law and the continuing legal conflicts regarding property rights concerning the Sami, are real problems that Sweden ought to solve in order to not loose its high reputation on the protection of human rights within its own borders but also regarding its promotion of human rights internationally.

[1] Established by Human Rights Council, HRC Resolution 5/1. Institution-building of the United Nations Human Rights Council, UN Doc. A/HRC/RES/5/1, hereinafter: HRC Resolution 5/1, available at <>.

[2] National report submitted in accordance with paragraph 15 (a) of the Annex to Human Rights Council resolution 5/1, Sweden, Human Rights Council, Working Group on the Universal Periodic Review, submitted 19 February 2010, UN Doc. A/HRC/WG.6/8/SWE/1, hereinafter: National report, available at <>.

[3] Draft report of the Working Group on the Universal Periodic Review, Sweden, Human Rights Council Working Group on the Universal Periodic Review, Eighth Session, Geneva, 3-14 May 2010, submitted 14 May 2010, UN Doc. A/HRC/WG.6/8/L.10, hereinafter: Draft report, available at <>.

[4] Basic facts about the UPR, available at <>.

[5] UNGA Res 60/251, 15 March 2006, UN Doc. A/RES/60/251, available at>.

[6] Calendar detailing the order in which the 192 Member States of the United Nations will be considered during the first four year cycle of the UPR, available at <>.

[7] Report of the Working Group on the Universal Periodic Review, Germany, Human Rights Council, Eleventh Session, 4 March 2009, UN Doc. A/HRC/11/15, available at <>.

[8] Report of the Working Group on the Universal Periodic Review, Norway, Human Rights Council, Thirteenth Session, 4 January 2010, UN Doc. A/HRC/13/5, available at <>.

[9] Report of the Working Group on the Universal Periodic Review, Finland, Human Rights Council, Eighth Session, 23 May 2008, UN Doc. A/HRC/8/24, available at <>.

[10] Human Rights Council Universal Periodic Review, calendar, available at <>. All final reports available at <>.

[11] Pursuant to HRC Resolution 5/1, para. 19, Sweden could have requested that one of the Rapporteurs be from its own Regional Group or the substitution of a rapporteur on only one occasion.

[12] Chosen on 7 September 2009.

[13] HRC Resolution 5/1 Annex, para. 15.

[14] Algeria, the Czech Republic, Denmark, Germany, the Netherlands, Norway, Slovenia, the United Kingdom of Great Britain and Northern Ireland and Switzerland.

[15] HRC Resolution 5/1 Annex, para. 26.

[16] HRC Resolution 5/1 Annex, para. 27.

[17] HRC Resolution 5/1 Annex, paras. 28-32.

[18] HRC Resolution 5/1 Annex, paras. 33-38.

[19] Compilation prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15 (b) of the annex to Human Rights Council resolution 5/1, Sweden, Human Rights Council Working Group on the Universal Periodic Review, Eighth session, Geneva, 3-14 May 2010, submitted 19 February 2010, UN Doc. A/HRC/WG.6/8/SWE/2, available at <>.

[20] Summary prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15 (c) of the annex to Human rights Council resolution 5/1, Sweden, Human Rights Council Working Group on the Universal Periodic Review, Eighth session, Geneva, 3-14 May 2010, submitted 18 February 2010, UN Doc. A/HRC/WG.6/8/SWE/3, available at <>.

[21] Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169) (signed 27 June 1989, entered into force 5 September 1991) 28 ILM 1382, available at <>.

[22] It was also underlined the HRC’s concern over the wide surveillance powers of the executive through the new law on signals intelligence in defence operations.

[23] The Saami Council is an umbrella organization for Sámi organizations in Norway, Sweden, Finland and Russia.

[24] In the present presentation the focus is on the constitutional and legislative framework, not the implementation of international human rights obligations that are dealt with separately by the summary.

[25] Draft report of the Working Group on the Universal Periodic Review, Sweden, Human Rights Council Working Group on the Universal Periodic Review, Eighth Session, Geneva, 3-14 May 2010, submitted 14 May 2010, UN Doc. A/HRC/WG.6/8/L.10, hereinafter: Draft report, available at <>.

[26] See, e.g., Draft report, para. 10 on the protection of freedom of excpression etc in the constitution and the Freedom of Press Act.

[27] See, e.g., Draft report, para. 11 on the new Discrimination Act (Diskrimineringslag [2008:567]) in force since 1. January 2009.

[28] See, e.g., Draft report, para. 19 on the Swedish Government’s continued study of the ratification of ILO Convention No. 169.

[29] See, e.g., Draft report, paras. 15, 18 and 20 on the migration policy, a 2007 national action plan to combat violence perpetrated by men against women, and the two recent (for 2002-2004 and 2006-2009) national human rights action plans.

[30] HRC Resolution 5/1 Annex, para. 21.

[31] Draft report, paras. 95-98.

[32] See, e.g., the presentation on 15 February 2010, Better Protection of National Minorities and Minority Languages in Sweden?

[33] Draft report, para. 29.

[34] Draft report, para. 43.

[35] Cf. supra note 28.

[36] Draft report, para. 45.

[37] It has been criticized that the amendment does not recognize the Sami as an indigenous people.

[38] SOU 2006:14: Samernas sedvanemarker, available at <>.

[39] The author reported on this case law in an earlier Referentenbesprechung.

[40] Information available at <>.

[41] See SOU 2002:98: Internationella brott och svensk jurisdiktion, available at <>.

[42] For criticism on this see M. Klamberg, International Criminal Law in Swedish Courts: The Principle of Legality in the Arklöv Case, International Criminal Law Review 9 (2009) 395–409, at 396-399.

[43] Lag (1964:169) om straff för folkmord.

[44] Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277.

[45] Chapter 3 Art. 5 Swedish Penal Code and see SOU 2002:98, part 1 at 173.

[46] Art. 7 (1) (d) and (g) Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90.

[47] See e.g. Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Concluding observations of the Human Rights Committee, Sweden, Human Rights Committee, Ninety-fifth session, New York, 16 March-3 April 2009, UN Doc. CCPR/C/SWE/CO/6, at para. 4, available at <>.

[48] UNGA Res 48/134, 20 December 1993, UN Doc. A/RES/48/134, available at <>.


  1. Africa Research Centre Africa Research Centre 6 July 2010

    The ICC: Europe’s Guantánamo Bay for Africa?
    A new 345-page study of the International Criminal Court, ‘The International Criminal Court: Europe’s Guantánamo Bay?’, published by the Africa Research Centre to coincide with the ICC’s first ever review conference (in Kampala, Uganda, 31 May – 8 June 2010), has found the ICC to be manifestly unfit for purpose.
    The International Criminal Court is shown to be European-driven, Africa-focused and irretrievably flawed. The study demonstrates that the ICC’s claims to international jurisdiction and judicial independence are institutionally flawed and that the Court’s approach has been marred by blatant double-standards and serious judicial irregularities. The Hague-based ICC is increasingly being seen as the European equivalent of the US tribunal at Guantánamo Bay, which similarly claims international jurisdiction.
    While the ICC presents itself as an international court this is quite simply not the case. Its members represent just over one quarter of the world’s population: China, Russia, the United States, India, Pakistan and Indonesia are just some of the many countries that have remained outside of the Court’s jurisdiction.
    The truth is also that the ICC is as independent as the United Nations Security Council and the Court’s European Union funding lets it be. Far from being an independent and impartial court, the ICC’s own statute grants special “prosecutorial” rights of referral and deferral to the Security Council, or more specifically its five permanent members. Political interference in the legal process was thus made part of the Court’s founding terms of reference.
    The Court is also umbilically tied to the European Union which provides over 60 percent of its funding. The English expression, “He who pays the piper calls the tune”, could not be more accurate. The ICC has ignored all European or Western human rights abuses in conflicts such as those in Afghanistan and Iraq or human rights abuses by Western client states. Instead, the Europeans have chosen to focus the Court exclusively on Africa. Despite over 8,000 complaints about alleged crimes in at least 139 countries, the ICC has started investigations into just five countries, all of them African. Given Africa’s previous traumatic experience with the very same colonial powers that now in effect direct the ICC, this must create an alarming déjà vu for those who live on the continent. The EU is additionally guilty of economic blackmail in tying aid for developing countries to ICC membership.
    The Court’s proceedings have often been questionable where not farcical. Its judges – some of whom have never been lawyers, let alone judges – are the result of vote-trading amongst member states. The Court has produced witnesses who recanted their testimony the moment they got into the witness box, admitting that they were coached by non-governmental organisations as to what false statements to make. There have been prosecutorial decisions which should have ended any fair trial because they compromised the integrity of any subsequent process. The ICC’s first trial stalled because of judicial decisions to add new charges half-way through proceedings. Simply put, the Court has been making things up as it goes along.
    The ICC claims to be “economical”, yet it has cost half a billion Euros to put on one deeply flawed trial, which subsequently ground to a halt for months. The ICC claims to be victim-centred yet Human Rights Watch has publicly criticised the ICC’s ambivalence towards victim communities. The ICC claims to bring “swift justice” but it has taken several years to bring the first accused to trial for allegedly using child soldiers. The Nuremberg trials, which addressed infinitely more serious charges, were over within a year. The ICC claims to be fighting impunity, yet it has afforded de facto immunity and impunity to several serial abusers of human rights who happen to be friends of the European Union and United States.
    The study’s author, Dr David Hoile, has noted:
    “Africa fought long and hard for its independence. It must reject this new ‘legal’ colonialism. The ICC’s double-standards and autistic legal blundering in Africa has derailed delicate peace processes – thereby prolonging devastating civil wars. There is a clear lesson for countries in Africa and elsewhere: do not join the ICC and do not refer your country to the ICC. It is the equivalent of inviting a cancer into your system. The ICC does not have Africa’s welfare at heart, only the furtherance of Western, and especially European, foreign policy and its own bureaucratic imperative – to exist, to employ more Europeans and North Americans and where possible to continue to increase its budget.”
    About the Author
    Dr David Hoile is an African scholar and public affairs consultant specialising in African affairs. He is the author of ‘Darfur: The Road to Peace’ (2008), ‘Images of Sudan: Case Studies in Propaganda and Misinformation’ (2003), ‘Farce Majeure: The Clinton Administration’s Sudan Policy 1993-2000’ (2000), ‘Mozambique, Resistance and Freedom: A Case for Reassessment’ (1994), and ‘Mozambique: A Nation in Crisis’ (1989). He is also the editor of ‘The Search for Peace in the Sudan: A Chronology of the Sudanese Peace Process 1989-2001’ (2002). Dr Hoile has been a Research Professor at the Sudan University of Science and Technology and a Visiting Professor at the University of Khartoum.
    The African Research Centre, Website; Email The author can be contacted by email at

  2. Stuart Hanlon Stuart Hanlon 27 August 2010

    This is an important and valuable case. This is the type of case we are looking for. It describes the the Human Rights Council successfully. We are looking for these types of posts for our site. So much thanks for this fabulous case.

  3. Peter Fitzpatrick Peter Fitzpatrick 21 August 2011

    The discrimination of immigrants in Sweden is cause for concern. I’d have to say that the Universal Periodic Review is doing some good to protect human rights, but more needs to be done. It was a little intimidating, but thank you for the informative read.

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