Rhetorical inaction? Compliance and the Human Rights Council of the United Nations.

Author:Davies, Mathew

The Human Rights Council of the United Nations was inaugurated in 2006 to much acclaim. Promising to defuse the tensions that had overwhelmed its maligned predecessor, the Commission on Human Rights, the council is based on the belief that depoliticizing human-rights discussions would enhance the effectiveness of the United Nations in the realm of human-rights promotion. This article investigates just what type of compliance pressure the council, particularly through its Universal Periodic Review mechanism, has been able to develop over countries through comparing the genesis and workings of the council to existing accounts of how actors influence each other in international politics. It is argued that the reforms instigated by the council may have shifted the system away from the overt politicization previously experienced, but they have certainly not removed totally the role of state politics in rights promotion. As such, they represent conceptually a middle position, identified by Thomas Risse, known as "rhetorical action." Identifying this allows for an analysis of the potential success of the council, as existing accounts of this type of compliance pressure have developed "scope conditions" about what the precursors for successful compliance are. Using these conditions, the article concludes that the council's prospects may not live up to the acclaim that surrounded its creation. KEYWORDS: United Nations, Human Rights Council, Universal Periodic Review, compliance, persuasion, rhetorical action, human rights

The United Nations commitment to advancing human rights has proven perhaps the most contentious of the many goals set for the universal organization. Sitting uneasily alongside parallel commitments to international peace and security and becoming enmeshed in debates over humanitarian intervention, the quest to both protect and promote human rights has for many come to represent a poisoned chalice.

In 1948, the UN vested this interest in the United Nations Commission on Human Rights (the commission), a subsidiary body of the Economic and Social Council (ECOSOC). While achieving great success, especially in the expansion of the international legal framework of human rights, the commission was ultimately replaced in 2006 with the Human Rights Council (the council). The founders of the council have sought to diffuse the rising tide of politicization that was choking the commission by instituting a system that is intended to be demonstrably fairer, more inclusive, and to work with, not against, states under review. Particularly important in this reinvigoration is the role of a specific procedural innovation that has no direct precursor within the commission, the Universal Periodic Review (the review).

Much has been written on the genesis and early workings of the council. The intention here is not to replicate such efforts but instead to build upon these empirical enquiries by introducing a conceptual argument about the notion of compliance that will enhance our understanding of how the council, through the review mechanism, is intended to work. This allows two lines of reasoning. First, it helps develop a greater understanding of the nature of the council and review in terms of how they seek to enhance compliance with UN standards; and second, it allows us to develop a base from which to probe the potential success of the review mechanism.

Much academic work has concerned itself with just what promotes successful compliance efforts, what structures are necessary, and what the particular processes involved resemble as actual political acts. Bringing these discussions to the table allows for a critical engagement with the optimism and enthusiasm that has surrounded the genesis of both the council and the review.

To unpack and present these issues, the argument proceeds as follows. First, a recap of the criticisms leveled against the commission. This is important because these criticisms form a window through which to understand why the issue of depoliticization became central to the desired council and review. From there, I analyze the institutional and procedural innovations of the council with specific reference to the review. Drawing on the literature that deals with the differing ways that compliance pressures can be generated that have emerged from the study of socialization in international politics, I argue that both the structural revisions of the council and the procedural actions of the review represent a shift toward what appears to represent "compliance by persuasion." However, deeper analysis of the conceptual arguments about persuasion reveals uncomfortable questions about the role of power within the council. The revisions superficially represented a system based on persuasion-based efforts at compliance because they attempted to remove the role of power from the process of promoting rights. However, drawing on Thomas Risse's reworking of Habermas, the council has in reality created a hybridized compliance system that rests on rhetorical action accounts of compliance due to the continued relevance of power between the participants of any particular review, even if that is expressed in differing ways to previously.

The final section of the article engages with the potential success of the review procedure. Through examining the existing conceptual understandings of what promotes successful efforts at rhetorical action, there is sufficient basis from which to generate intriguing conclusions. While the council and review have changed the ways in which the UN seeks to advance human-rights pressures, it has not gone far enough to ensure the success of this transition. Examining the amount of time available for discussion supports this conclusion. Given the nature of the engagement with the process by states under review, there are substantial grounds for pessimism over the council and review as marking any great transformative moment for the ability of the UN to promote compliance with human rights.

The Cancer of Politicization: The UN Commission on Human Rights in the 2000s

The commission was founded in 1946 and for sixty years sat center stage of the UN's efforts to both promote and protect human rights. The commission developed a wide-ranging ability to investigate human rights. (1) These included the extensive use of special rapporteurs, with either thematic or country mandates, of which by 2006 there were, respectively, twenty-eight and thirteen, (2) together with procedures known by the resolution that created them as, for example, the 1503 and 1235 procedures. (3) While always contentious, the nature of the opposition to the commission grew considerably more pernicious at the turn of the twentieth century. Key among the new battery of criticisms was the notion of politicization. We should step carefully here and avoid concluding that before 2000 the commission was free of political intrigue. As the late high commissioner for human rights Sergio Viera de Mello noted to the commission:

Let's be frank. Most of the people in this room work for governments. That is politics. For some people in this room to accuse others of being political is a bit like fish criticising each other for being wet. (4) It was not, therefore, the mere presence of politicization within the commission that would prove fatal. Far more important were the two ways, identified best by Elvira Dominguez-Redondo, that such politicization increased in intensity and came to undercut both the legitimacy of the commission and its ability to adequately fulfil its mandate (5) First the issue of membership and which states were, or were not, elected into positions of authority over others through their occupation of one of the fifty-three seats on the commission and second, how the working of the commission became subverted by blatant politicization to such an extent that it came to retard its authority. It was the interaction of these two facets that led to the conclusion, forwarded after the last commission session before restructuring discussions began in earnest, that the workings of the commission had been reduced to "little more than a very highly politicized and polarized game, almost totally negligent" of the actual task of rights promotion. (6)

Concerning the issue of membership, it had been assumed, optimistically but not wholly without reason, that in the aftermath of World War II states would renew their commitment to human rights as part of the interlocking array of mechanisms being established to ensure no return to the genocidal combustion of international politics just endured. It was further assumed that states that sought membership on the commission would both be committed to human rights themselves as well as willing to promote them in others. However, in the period after the Cold War ended, and when high hopes of the renewed activity of the UN were first raised and then dashed, a pernicious trend could be discerned that would reveal the framers of the commission were overly optimistic. It came to pass that membership of the commission increasingly was composed of states who were motivated to join not out of any overarching commitment to human rights but to "protect themselves against criticism or to criticise others." (7) Membership became the policy of choice for those who sought to shield themselves from the very sort of international overview that the commission was intended to provide. Amnesty International asserted that commission membership was now sought "to shield the Commission members from human rights scrutiny instead of to protect and promote human rights." (8) The relatively loose criteria for gaining membership in the commission, securing only twenty-eight votes in ECOSOC with no formal obligations made of members, offered scant obstacle to those who desired membership for nefarious reasons. Recognizing, if not addressing, the issue, a high-level panel charged with investigating...

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