ABSTRACT
This chapter asks whether the UPR can be thought of as an international law-making process. To tackle this, it is first necessary to unpick some of the assumptions with what can be broadly described as law ascertainment theory. Drawing on the work of Jean d’Aspremont, Jan Klabbers and others, the first section sets out how a rigid framework for understanding the creation of international law, which does not really accord with state practice on human rights, runs into difficulties when applied to the UPR. In fact, the UPR has three features which arguably characterise it as a law-making process. The second section looks at how the dialogic nature of the UPR process gives it institutional legitimacy. Existing theories of the sources of international law often seek to explain the origin of legal obligations in terms of state consent. The third section looks repetition in the UPR, drawing on the work Wouter Werner and Rossana Deplano on repetition in the UN General Assembly and the Security Council and how this shapes international law. This chapter does not adopt a utopic vision of what the UPR is, or can do, but rather argues that as a process, it is in its own right part of the international legal system.
