human rights council

Rhetorical Inaction?Compliance and the Human RightsCouncil of the United Nations

Mathew Davies*

The Human Rights Council of the United Nations was inaugu-rated in 2006 to much acclaim. Promising to defuse the tensionsthat had overwhelmed its maligned predecessor, the Commis-sion on Human Rights, the council is based on the belief that de-politicizing human-rights discussions would enhance theeffectiveness of the United Nations in the realm of human-rightspromotion. This article investigates just what type of compliancepressure the council, particularly through its Universal PeriodicReview mechanism, has been able to develop over countriesthrough comparing the genesis and workings of the council toexisting accounts of how actors influence each other in interna-tional politics. It is argued that the reforms instigated by thecouncil may have shifted the system away from the overt politi-cization previously experienced, but they have certainly not re-moved totally the role of state politics in rights promotion. Assuch, they represent conceptually a middle position, identifiedby Thomas Risse, known as “rhetorical action.” Identifying thisallows for an analysis of the potential success of the council, asexisting accounts of this type of compliance pressure have de-veloped “scope conditions” about what the precursors for success-ful compliance are. Using these conditions, the article concludesthat the council’s prospects may not live up to the acclaim thatsurrounded its creation. KEYWORDS: United Nations, HumanRights Council, Universal Periodic Review, compliance, persua-sion, rhetorical action, human rights

The United Nations commitment to advancing human rights hasproven perhaps the most contentious of the many goals set for the

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*Department of International Relations, Australian National University, Canberra

universal organization. Sitting uneasily alongside parallel commitmentsto international peace and security and becoming enmeshed in de-bates over humanitarian intervention, the quest to both protect andpromote human rights has for many come to represent a poisonedchalice.

In 1948, the UN vested this interest in the United Nations Com-mission on Human Rights (the commission), a subsidiary body of theEconomic and Social Council (ECOSOC). While achieving great suc-cess, especially in the expansion of the international legal frameworkof human rights, the commission was ultimately replaced in 2006 withthe Human Rights Council (the council). The founders of the coun-cil have sought to diffuse the rising tide of politicization that waschoking the commission by instituting a system that is intended to bedemonstrably fairer, more inclusive, and to work with, not against,states under review. Particularly important in this reinvigoration is therole of a specific procedural innovation that has no direct precursorwithin the commission, the Universal Periodic Review (the review).

Much has been written on the genesis and early workings of thecouncil. The intention here is not to replicate such efforts but insteadto build upon these empirical enquiries by introducing a conceptualargument about the notion of compliance that will enhance our un-derstanding of how the council, through the review mechanism, is in-tended to work. This allows two lines of reasoning. First, it helpsdevelop a greater understanding of the nature of the council and re-view in terms of how they seek to enhance compliance with UN stan-dards; and second, it allows us to develop a base from which to probethe potential success of the review mechanism.

Much academic work has concerned itself with just what pro-motes successful compliance efforts, what structures are necessary,and what the particular processes involved resemble as actual politi-cal acts. Bringing these discussions to the table allows for a critical en-gagement with the optimism and enthusiasm that has surrounded thegenesis of both the council and the review.

To unpack and present these issues, the argument proceeds asfollows. First, a recap of the criticisms leveled against the commission.This is important because these criticisms form a window throughwhich to understand why the issue of depoliticization became centralto the desired council and review. From there, I analyze the institu-tional and procedural innovations of the council with specific referenceto the review. Drawing on the literature that deals with the differingways that compliance pressures can be generated that have emergedfrom the study of socialization in international politics, I argue thatboth the structural revisions of the council and the procedural actions

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of the review represent a shift toward what appears to represent “com-pliance by persuasion.” However, deeper analysis of the conceptualarguments about persuasion reveals uncomfortable questions aboutthe role of power within the council. The revisions superficially rep-resented a system based on persuasion-based efforts at compliancebecause they attempted to remove the role of power from the processof promoting rights. However, drawing on Thomas Risse’s reworkingof Habermas, the council has in reality created a hybridized compli-ance system that rests on rhetorical action accounts of compliancedue to the continued relevance of power between the participantsof any particular review, even if that is expressed in differing ways topreviously.

The final section of the article engages with the potential successof the review procedure. Through examining the existing conceptualunderstandings of what promotes successful efforts at rhetorical ac-tion, there is sufficient basis from which to generate intriguing con-clusions. While the council and review have changed the ways in whichthe UN seeks to advance human-rights pressures, it has not gone farenough to ensure the success of this transition. Examining the amountof time available for discussion supports this conclusion. Given thenature of the engagement with the process by states under review,there are substantial grounds for pessimism over the council and re-view as marking any great transformative moment for the ability ofthe 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 centerstage of the UN’s efforts to both promote and protect human rights.The commission developed a wide-ranging ability to investigate humanrights.1 These included the extensive use of special rapporteurs, witheither thematic or country mandates, of which by 2006 there were, re-spectively, twenty-eight and thirteen,2 together with procedures knownby the resolution that created them as, for example, the 1503 and1235 procedures.3 While always contentious, the nature of the oppo-sition to the commission grew considerably more pernicious at theturn of the twentieth century. Key among the new battery of criticismswas the notion of politicization. We should step carefully here andavoid concluding that before 2000 the commission was free of politi-cal intrigue. As the late high commissioner for human rights SergioViera de Mello noted to the commission:

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Let’s be frank. Most of the people in this room work for govern-ments. That is politics. For some people in this room to accuse othersof being political is a bit like fish criticising each other for being wet.4

It was not, therefore, the mere presence of politicization withinthe commission that would prove fatal. Far more important were thetwo ways, identified best by Elvira Dominguez-Redondo, that suchpoliticization increased in intensity and came to undercut both the le-gitimacy of the commission and its ability to adequately fulfil its man-date.5 First the issue of membership and which states were, or werenot, elected into positions of authority over others through their oc-cupation of one of the fifty-three seats on the commission and second,how the working of the commission became subverted by blatantpoliticization to such an extent that it came to retard its authority. Itwas the interaction of these two facets that led to the conclusion, for-warded after the last commission session before restructuring discus-sions began in earnest, that the workings of the commission had beenreduced to “little more than a very highly politicized and polarizedgame, almost totally negligent” of the actual task of rights promotion.6

Concerning the issue of membership, it had been assumed, opti-mistically but not wholly without reason, that in the aftermath ofWorld War II states would renew their commitment to human rightsas part of the interlocking array of mechanisms being established toensure no return to the genocidal combustion of international poli-tics just endured. It was further assumed that states that sought mem-bership on the commission would both be committed to human rightsthemselves as well as willing to promote them in others. However, inthe period after the Cold War ended, and when high hopes of the re-newed activity of the UN were first raised and then dashed, a perni-cious trend could be discerned that would reveal the framers of thecommission were overly optimistic. It came to pass that membershipof the commission increasingly was composed of states who were mo-tivated to join not out of any overarching commitment to humanrights but to “protect themselves against criticism or to criticise oth-ers.”7 Membership became the policy of choice for those who soughtto shield themselves from the very sort of international overview thatthe commission was intended to provide. Amnesty International as-serted that commission membership was now sought “to shield theCommission members from human rights scrutiny instead of to pro-tect and promote human rights.”8 The relatively loose criteria for gain-ing membership in the commission, securing only twenty-eight votesin ECOSOC with no formal obligations made of members, offeredscant obstacle to those who desired membership for nefarious reasons.Recognizing, if not addressing, the issue, a high-level panel charged


with investigating shortcomings in the UN opined: “States lacking ademonstrated commitment to the promotion and protection ofhuman rights could not properly set standards to reinforce humanrights.”9

A shudder ran through the United Nations when on May 3, 2001,the United States let its membership of the commission lapse, in partbecause of the general air of unilateralism of US foreign policy, butalso because of the plummeting regard that the commission was heldin by Washington. Accentuating the sense of malaise, states thatgained membership in 2001 included such luminaries of humanrights protection as the Sudan, Sierra Leone, Uganda, and Togo.10

Worse still, the Libyan delegate was elected chair of the commissionin 2003. Remarkably it was not only the election of states of ques-tionable commitment to rights that undercut the commission, it wasthe supine agreement to this process by the Western democracies, thevery states that one would expect would be most vociferous in theirdefense of the commission’s integrity. European Union statesadopted a position of careful neutrality during debates over Libya’selection, and it was felt that Western states were using their member-ship of the commission to “keep members from taking meaningful ac-tion against them or their allies.”11 “The game of majorities governingthe adoption of decisions [by the commission] meant in practice thatsome states are immune from scrutiny whilst others are persistentlycriticised.”12

This question of the political usages of membership merges intothe second strand observed by Dominguez-Redondo, the actual useof the various procedures and mandates at the commission’s disposal.The most contentious activities of the commission were the publicdiscussions of alleged human rights violations where “country specificresolutions [were approved] by a vote of the member states.”13 Suchresolutions tended toward being targeted at a specific issue, and thestate in question would be “instructed . . . to adopt the changes de-manded.”14 Such “debates were often identified as among the worstexamples of politicization in the former Commission.”15 This highlyconfrontational approach, pitching the commission “against” thestate under review, provoked a very strong backlash among states thatresented being placed under inquisition.16

The intersection of these two avenues of criticism would over-whelm the commission by the mid-2000s. In part, criticism of the com-mission emerged from the “usual suspects.” US ambassador to theUN John Bolton described the commission as “a completely brokenmechanism for intergovernmental decision-making.”17 More remark-able, however, was the broad consensus this opinion came to gener-ate both among the usual supporters of the UN and indeed at the

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highest levels within the UN. NGOs poured scorn on the commission,and Kofi Annan concluded in 2003 that “the divisions and disputes inrecent months have made your [the commission’s] voice not strongerbut weaker.”18 Annan’s call was not heeded, and by 2005 in his report“In Larger Freedom: Toward Development, Security, and HumanRights for All,” the Secretary-General explicitly recognized the de-clining credibility and professionalism of the commission and calledfor “major reform” to the UN’s human-rights promotion efforts.19

Instigating Persuasion?Compliance and Depoliticization Within the Council

Understanding these criticisms of the commission is vital because theyset the backdrop against which its replacement was constructed. Under-standing the scale and meaning of the revisions requires more thansimply outlining the institutional and procedural revisions put inplace in 2006 and 2007. What is required is an understanding of whatcompliance is and how that compliance is generated by different ac-tors, institutions, and processes. This provides a baseline against whichto interrogate the political reforms to the UN body, allowing us ulti-mately to weave together the empirical and conceptual reasoning, fur-thering our understanding of just how significant the revisions were.

What then is compliance? Answers to this question emerge fromthe study of socialization in international politics, a particularly rele-vant field given its intimate concern with how actors influence eachother’s behavior and identity. Compliance refers to the phenomenaof one actor coming into alignment in behavioral practice with thestandards and expectations of another, and in the coming discussion,when using the term compliance pressures I refer to those political prac-tices instigated by actors that articulate the desire to influence othersand promote those changes required to bring coherence.20

Relevant here is the variation in scholarly opinion on just how itis that compliance pressures develop. There exist different strategiesthrough which any actor or institution can develop pressure to alter thebehavior of others, to bring them into compliance with specific stan-dards and expectations. Much of the academic literature that discussescompliance is pitched at quite some level of abstraction, preoccupiedwith the broader theoretical and metatheoretical debates.21 Giventhis, we must continue with caution, and the intention in the comingdiscussion is to focus explicitly on two different political strategiesthat actors can deploy to develop compliance. These two positionsemerge from the broader debate that characterizes much metatheo-rizing in international relations: rationalism versus constructivism (or


more generally sociological approaches). These two understandingsof compliance represent, given their emergence from more abstractreasoning, “ideal types” of compliance pressure and as such serve todelineate the parameters of the coming discussion. Note that thecoming analysis does not focus on the inherent strengths and weak-nesses of these frameworks; nor does it aim to be definitive of the var-ious ways that theoretical work can inform the study of compliance;rather, it looks specifically at how they understand compliance pres-sures to be generated, so as to provide a firm footing to analyze thereview process.

Those whose work is rational choice in nature, referring to thebroad array of specific theories that rest on a “methodological ap-proach that explains both individual and collective outcomes interms of individual goal seeking under constraints,”22 suggest thatcompliance pressure results from the asymmetry of power betweenactors. Actors can induce others to comply with them because theycan strategically manipulate rewards and punishments, which can bematerial or social in nature. These most often rely on some form ofinstitutional hierarchy where some sit in “judgment” over others andprovide clear “correctives” that must be followed. There is little dis-cussion about what is right, the unwritten assumption being that thosesitting in judgment over others are correct and the offending party isin some way wrong. Such an approach underpins the “External In-centives Model” of Schimmelfennig and Sedelmeier, which, theyargue, persuasively drives forward the ability of the European Unionto alter the legal frameworks of candidate countries to the union.23

Against this understanding of compliance driven ultimately bypower asymmetries, others, most notably adherent to the various so-ciological approaches among which constructivism holds centerstage, emphasize mechanisms where compliance is promoted throughpersuading parties as to the rightness of changing their behavior, in-dependent of any material or social sanctions. Known broadly as thelogic of appropriateness (as opposed to the logic of consequencesthat rationalists suggests explains state behavior) constructivists as-sume actors to be motivated by internalized identities, values, andnorms.24 Compliance here is generated by those strategies that helpto alter identities and is broadly known as persuasion. It emphasizesthe free and open discussion between participants, who make re-course to the “better” argument (that which freely wins support).25

Such actors are ideally arranged horizontally (meaning none, eitherindividually or collectively, occupies a position of superiority over anyother) and all are empowered to contribute and shape discussion. Jef-frey Lewis has identified fascinating examples of this type of pressurein his study of decisionmaking within the European Union.26

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The key issue to remember when making the comparison betweenthese ideals and the revised UN human-rights system is depoliti-cization. If the abuses of the commission mandate were attributableto the corrosive effects of politicization, then its replacement wouldin some way have to depoliticize the human-rights activities of theUN.27 The key question here is, what compliance pressures arisewithin a system explicitly designed to be as depoliticized as possible?The argument to be developed from this point onward is that boththe structural revisions represented by the council and the proce-dural innovations of the review, when viewed together, represent ashift toward what we would understand a persuasion-based compli-ance system should look like.

The first task is to outline the revisions of the council and reviewand how these emphasize a depoliticized environment that moves theUN toward compliance by persuasion. Then I shall indicate how thistransition has not occurred fully. Drawing on Thomas Risse’s under-standing of “communicative action,” I will show how in reality the ac-tions of the council seem to fall between the two extreme positionsjust outlined.

The commission was swept away and replaced by the HumanRights Council in General Assembly Resolution 60/251.28 The coun-cil departed from the traditional membership practices of the com-mission through cutting six seats, slimming the body to forty-sevenmembers. While this reduction was considerably smaller than Annanhad recommended, and that, separately, the United States hadpushed for (wondering aloud whether democracy should be made aconditional entry requirement to any revised body),29 when viewedalongside other reforms it signifies a definite attempt to alter thestructural conditions within the council. To ensure membership ro-tation and dissipate the fact that some states were able to sit on thecommission in perpetuity, a limit of two terms was set, in an attemptto defuse charges of partisanship and favoritism. In an attempt to in-stitute some sort of filtering system to ensure states were not seekingmembership to avoid scrutiny, it was decided that states that join thecouncil must commit themselves to human rights and, what is moreimportant given that this commitment is not legally binding, submitto review themselves.30 Kofi Annan believed that only if all states ofthe UN submitted themselves to investigation could the selectivitybias that had kept some states perennially on or off the commission’sagenda be removed.31

Although membership was not to be conditional, these revisionsdid create a “clear expectation” that states sitting as members of thecouncil would adhere to high standards, as well as providing stan-dards to use in comparing member-state behavior, ultimately allowing


suspension from council membership by a simple two-thirds majorityin the General Assembly.32 The effects of this change were immediatelyapparent. “Those with a demonstrable commitment to human rightswere elected readily,” while “notorious abusers either refused to stand”or were defeated in their attempts (such as Iran and Venezuela).33

The membership revisions of the council were only the first stepstoward Annan’s goal of reforming UN human-rights efforts, giventhat politicization occurred not only in the composition of the com-mission but also its very functioning. Responding to this issue, theframers of the council adopted a cautious approach. They retained alarge degree of continuity between the working practices of the com-mission and the council’s. However, they also introduced a whollynew procedure that had no progenitor in the commission’s ways ofworking: the Universal Periodic Review itself.

Areas of continuity included assuming responsibility for existingspecial rapporteurs, whether geographically or thematically orga-nized.34 Perhaps most importantly, so-called 1503 procedures weremaintained. The 1503 procedures, instigated from 1970 onward, weredesigned to provide the commission with the power to provide country-specific oversight of states against which allegations had been made.35

By 2005, the commission had instigate eighty-two such investiga-tions,36 and they would remain a vital part of the council’s operation.It was in the wholly new Universal Periodic Review process, however,that the main drive to depoliticization, and thus persuasion, washoused. While details of the review process were not part of resolu-tion 60/251, being left to later discussions of the council itself, theGeneral Assembly asserted that the workings of the council would be

based on objective and reliable information, of the fulfilment byeach state of its human rights obligations. . . . Based on commit-ments in a manner that ensures universality of coverage and equaltreatment with respect to all states; the review shall be a cooperativemechanism, based on an interactive dialogue, with the full involve-ment of the state concerned.37

Such aims took political form when the precise working modali-ties of the review were finalized in council resolution 5/1 of June 18,2007, endorsed by General Assembly resolution 62/434 of December2007. The review was charged with promoting the “universality, inter-dependence, indivisibility and interrelatedness of all human rights,”38

through an explicitly intergovernmental process that was “transparent,non-selective, constructive, non-confrontational and non-politicised.”39

If the broad considerations driving the review seemed to rest on a de-politicized process of discussions between parties, then the precise

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modalities of any given review procedure powerfully reinforce thisimpression.40 First the state under review is permitted to take the floorand report on human rights within the country, followed by questionsand comments from the member states. Information to facilitate thesediscussions is drawn from a state submission and preparatory work bythe Office of the High Commissioner on Human Rights, which includesboth a recap of extant UN information on the state under review as wellas a summary of third-party stakeholder interest (particularlyNGOs).41 The state under review may choose to respond to all, some,or none of the questions presented to it, and is neither penalized norchastized for omissions. During deliberations, and acting as the bound-aries of what is a legitimate and illegitimate question, the members ofthe review process must concern themselves with the obligations en-gendered under the UN Charter itself, the Universal Declaration ofHuman Rights, and any human-rights instruments that the state underreview is party to.42 At the close of the dialogue, an outcome report isgenerated that contains the recommendations previously forwarded.This report is approved by both the Troika (a three-strong team ofHRC member-states that shepherd through each individual review)and the state in question. The report is finally submitted to the nextfull session of the council for final discussion by states this time joinedby interested NGOs before the report is formally adopted.43 Follow-up mechanisms have been created to monitor the implementation ofthe conclusions and recommendations that are contained in the finaldocument.44

The cooperative mechanisms at the heart the review, togetherwith the requirement of the consent of the state under scrutiny,would appear to mitigate against any forceful sanction procedure orany final communiqué that was excessively critical or concluded thata states behavior was in some way absolutely “wrong,” as characterizedmuch of the commission’s efforts at rights promotion. The reviewcentralizes a horizontally arranged, discursive, and cooperative envi-ronment. The nonadversarial, dialogue-centered approach, togetherwith the attempted depoliticization of the process through an ulti-mately universal and rotating spotlight, was perceived as a dramaticstep “towards changing the dynamic of the UN’s main human rightsbody.”45 States under investigation are given two opportunities to ad-dress questions in a voluntary fashion. Furthermore, the reviewedstate must agree to the nature and content of the final report.

The interest here was to reduce the partisanship of previous UNefforts and promote the necessity of discussion, compromise, andagreement in the formulation of the country reports. In terms of thenotions of compliance introduced previously, it seems clear that thesereforms indicate on first inspection a parallel with persuasion. The


diffusion of tensions required for open debate and discussion to flour-ish feeds directly into the intentions behind, and practices of, thecouncil.

The Middle Position:Rhetorical Action Within the Council

The transition from commission to council appears to conform to amove toward a persuasion-based compliance system. There remains,however, the thorny question of power and its many roles within thedebates between states within the review process. Jürgen Habermas’saccount of discourse occupies central place when discussing theworkings of persuasion, and it pays now to focus on his argument. Putsuccinctly, Habermas argues that in his idealized “lifeworld,” true dis-course (and for our purposes this signifies conditions where persua-sion exists) occurs in the total absence of power considerations. Thisis termed “communicative action or ideal speech,”46 and focuses verymuch on the way in which “argumentative and discursive processeschallenge the truth claims inherent in identities and perceived inter-ests.47 Good ideas, not powerful actors, win arguments, and as suchare the drivers of compliance. Were persuasion really to be drivingthe review, then we would expect participants to be convinced solelyby the better argument presented (whether rights should or shouldnot be endorsed) and to never make recourse to any inequality be-tween them to promote their own position over any other.

There are significant flaws in using a compliance model based onpersuasion to investigate the review when that model is ultimatelyrooted in assumptions that are unrealistic. Is it really the case thatstates that participate in the council and review have “forgotten” aboutpower? It would have to be were persuasion unambiguously the ex-planation for how the council operates, and yet there can be “nodoubt that politics will be the primary consideration for many coun-tries” within the review.48 Many have argued that the Habermasianfocus solely on truth-seeking arguing between actors is flawed when itcomes to explaining the contentious world of political activity andthat the discursive process between actors is characterized not by freedebate but by actors advancing their arguments via the exploitationof asymmetries between them, be they material or social in nature.49

One does not, however, have to adopt a Foucauldian analysis to be-lieve that on a pragmatic level, the notion of ideal speech is divorcedfrom the political context of any compliance attempt, a context thatnecessarily interfaces with the relative power of those engaged indiscussion.

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We are left with a quandary. The reorganization of the UN human-rights machinery marks a seemingly definite shift away from the prac-tices of the commission. Superficially depoliticization has instigated asystem where persuasion-based processes potentially can come to thefore. Yet, to conclude unambiguously that persuasion has been insti-gated seems to require us to commit to an idealized Habermasian ac-count of actors and discourse that surely does not exist within thepolitically charged UN system. What then is the solution?

Fortunately, there exists an alternate conceptual framework thataddresses this issue, one that is based on Thomas Risse’s rearticula-tion of the work of Habermas into an uneasy, but conceptually useful,“middle position” between traditional rational choice and construc-tivist accounts of compliance.50 Risse takes the idea of communicativeaction out of its comfort zone, attempting to see just how far he canpush the concept. His concern is to link the understanding of com-pliance generated by persuasion with the belief that power consider-ations are always present in the political world. Risse attempts toassuage concerns about Habermas’s “unrealism” by “weakening” theHabermasian commitment to “ideal speech.” He suggests most rele-vantly “international institutions . . . provide an information rich andnormative framework structuring interactions.”51 In such circum-stances, Risse suggests that we can “relax” the assumption that powerimbalances in these contexts are necessarily destructive of the Haber-masian insight.52 What this results in is a political strategy to promotecompliance that hybridizes an awareness of power imbalances in pol-itics with the insights about depoliticization and discourse thatemerge from the study of persuasion.

Such an account can incorporate the discursive approach thatthe review mechanism centralizes with the continued relevance of po-litical motivation for actors engaged in any one discussion. Risseterms this middle position rhetorical action.53 Rhetorical action rests onthe use of language to convey information and preferences fromactor to actor.54 Actors therefore discuss the “right” way forward, butthey do not forget who they are, and what their own motives may be,in having such a discussion. Nor, vitally, do they forget the role ofpower in discussions. This is far more comfortable as the conceptualframework for understanding the council and review than either ofthe extreme positions covered previously.

The depoliticization that sits as the overwhelming motive behindthe council certainly did represent a move toward “friendly discus-sions” over the more confrontational approaches of the commissionbefore it. The review especially has empowered states that go throughthe process, giving them much control over both the substance of dis-cussion as well as the final report. The review possesses no ability to


sanction punishments on states; instead, the review outcome mapsroutes forward for the state under review. However, it would be follyto expect that these reforms have magically released this part of theUN system from the bonds of politics entirely. As Viera De Mellonoted, the United Nations is composed of sovereign states, and as weshall shortly see, even those diplomats most committed to questionsof rights rarely forget who is their employer. Risse’s middle positionallows us to conceive of discourse and power coexisting and grafts aHabermasian commitment to communicative action onto the sophis-ticated social architecture of international organizations. In a worldof continuous political contention between states and their represen-tatives, the structure and practices of the council are perhaps the bestthat its framers could have hoped for.

Rhetorical (In)Action?The Potential Success of the Review

The revisions to the UN human-rights system were intended to en-hance the protection of human rights by the member states. Under-standing the shift in compliance attempts provides a platform toprobe the potential success of the review because the conceptualstudy of compliance has developed a sequence of expectations ofwhat circumstances are conducive to successful compliance pressures.

Risse himself provides some account of where rhetorical action islikely to occur, presenting broad requirements that actors find them-selves in novel environments, are relatively unaware of their own po-sitions, and are separated from others by irreconcilable difference.55

Enhancing these rather under-specified circumstances, we can turnto certain “scope conditions,” referring to the conditions underwhich compliance pressures are assumed to occur and be successful.

Jeffrey Checkel has sought to identify these conditions in specificrelation to what he terms social learning.56 The terminology here canbe confusing. Is social learning the same as rhetorical action, or in-deed as persuasion? Given the joint Habermasian-inspired founda-tion for both persuasion and rhetorical action, I believe it is justifiedto draw on Checkel’s work to develop an understanding of what wouldbe necessary for successful compliance by way of rhetorical action.57

The scope conditions include the requirement that the targetstate is in a novel and uncertain environment and has few ingrainedprior beliefs. Within the grouping where we are looking for compli-ance, the agent attempting enforcement of standards must be consid-ered authoritative. Those promoting change should engage in seriousdeliberative argument; and finally, the agency/target interactions have

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to occur in a less politicized and more insulated setting.58 From this,we can infer that this translates to political requirements: that discus-sion, when it does occur, is protracted and enduring; that the de-politicization of the context in which discussions occur is meaningfuland sustained; and those engaged in the discussion have a truthfulcommitment to the process.59 In practice, the running time of the re-view was brief. It was not until April 7–18, 2008, that the review heldits first substantive session, and looking at the above conditions wecan see clearly that the review is not a particularly effective mecha-nism within which rhetorical action can flourish.60

First, the review simply has insufficient time to go into detailabout the countries that are under review. Here we must differentiatebetween the total amount of time the council is in session and theamount of time specifically dedicated to the review of any one state.The council meets regularly, with three scheduled sessions that “musttotal not less than ten weeks” out of the year, substantially longer thanthe six-week, single session the commission instigated.61 However, thesimple provision of an institution where rights discussion occurs forlonger than previously does not automatically infer any particular im-provement over the commission.

What is vital is the amount of time any one particular state is thefocus of the review mechanism itself. Here the situation is far less pos-itive. There is simply insufficient time to develop the enduring dis-cussions that Checkel suggests so powerfully as being necessary forpersuasion to be successful. The first session in 2008 dealt with six-teen countries, and it soon became clear that “it was impossible to ad-dress all of the human rights issues” that could potentially arise.62

States had a mere three hours to present their positions and respondto questioning. This renders the review more of a schematic overviewof the situation in any given country, rather than a detailed appraisal.This enforced brevity is also clear when one considers the amount ofinformation that goes into a review. The written report of the stateunder review is limited to twenty pages, and the document of addi-tional information provided by the Office of the High Commissioneron Human Rights has to be a mere ten pages.63 Additional stake-holders, including NGOs and “national human-rights instruments,”can submit another ten pages of collated opinion, again under theaegis of the high commissioner.64

There is, also, a worrying “silence” of four years between the timewhen a state is put under review and the follow-up investigation ofthat review. It is not unsurprising that these circumstances resulted infinal recommendations being “so broad that monitoring their imple-mentation” would be difficult.65 While the system generally workedwell from a bureaucratic perspective, “there remains the possibility of


misuse of time in the future,” with some states dedicating up to fortyminutes to their initial report, curtailing the time available for ques-tioning.66 This was not necessarily a negative tactic, but it certainlylimited room for discussion. Countries such as Argentina, Ghana,Peru, and Romania acted in this way in the first and second sessionsof the review.67

We must be suspicious of the commitment of states and their del-egations to discussing their human-rights situations. While the psy-chological profiling of delegates required to truly uncover theirmotives and amenability to differing perspectives is beyond the scopeof this article, a focus on some of the ways in which states have en-gaged with the review tellingly reveals their commitment to dialogue.68

An insidious development has been noted where states “stack” the au-dience of the review meeting at which they are under review withfriendly backers who use the occasion not to probe compliance but tooffer platitudes and congratulations on the efforts so far. This prac-tice challenges “the principle of transparency and objectivity” anddiminishes the possibility “that the Review can actually fulfil its man-date.”69 The Russian Federation in its comments on Bahrain, Algeria,and Pakistan was largely congratulatory. The federation spent sometwo of its three minutes of allotted time in the Pakistan review in plat-itudes.70 Exacerbating this, many of the most critical questions leveledagainst states were simply ignored in favor of responding to less tax-ing issues. This significantly retards the ability of the review process toadequately raise and discuss the most sensitive issues.That a stateunder review can block certain issues helps to defuse the negativeways in which politicization corroded the efforts of the commission,but it does little to advance the efficacy of the review itself.

Finally, we must remain suspicious of the relationship betweenthe delegations sent to the review and the pressures on them from thestate they represent. Representatives to any discursive situationshould be empowered to alter the political behavior of the state theyrepresent. The evidence here is mixed. Sweeny and Saito note thatstates tended to field “large high-level delegations,” signifying that theprocess “was being taken seriously” by the governments under re-view.71 More worryingly, however, the representatives sent by suchcountries are often drawn from foreign ministries, not ministries ofjustice or human rights, indicating that the review is often viewed “asa foreign affairs exercise rather than a national process for the ex-amination and improvement of human rights protection and promo-tion.”72 There is good cause to be wary of such a situation.73 Does theregular presence of diplomats as opposed to those concerned withjustice and home affairs denude the process of all utility? Perhaps not,but it does powerfully reinforce the impression that the states under

Mathew Davies 463

review see the process as less an opportunity for frank discussion ofrights and more an exercise in foreign policy—with all the politiciza-tion that flows from that emphasis.

* * *

The ways in which the United Nations has sought to exert pressure onits members over issues of human rights has varied over time. Thecommission represented perhaps the naive belief that direct criti-cism, exhortations, and public reprimands would be sufficient to en-gender compliance with preagreed standards. This strategy may wellhave proven adequate were states all equally committed to interna-tional oversight concerning their compliance with human rights, butit proved inadequate in the face of sustained state recalcitrance.

As a consequence, and despite the definite successes of the com-mission, perceptions of its ultimate inadequacy for the tasks set itmounted through the 1990s, reaching a crescendo with Kofi Annan’sreform drive during his second term as Secretary-General. In place ofthe hierarchy-driven commission, the criticisms of politicization re-sulted in the Human Rights Council, which centralized consensusand discussion. This was not only remarkable in a political sense.Conceptually, the council represented a shift in the UN effort towardwhat appears to be persuasion-based efforts. The key word there is to-ward, because while efforts at depoliticization have most certainly al-tered the structural and procedural nature of UN human-rightsactivities, it most certainly has not removed the political entirely fromthe equation.

Given this partial alteration, I have argued that the processes andinteractions within the review mechanism are most akin to compliancepressures that subscribe most closely to Risse’s reworking of Haber-masian notions of communicative action. Here power and persuasionsit side by start as part of the same intellectual schema.

The novelty of the review is not a reason to not pose questions asto its potential success over the longer term, although it does cautionagainst drawing any emphatic conclusions at this point. The linkage Ihave sought to establish between the council and review as a revisionto the now defunct commission’s way of promoting compliance, andthe switch toward a persuasive approach that this embodies, allows usto probe potential success over the longer term. We can do so be-cause there are preexisting expectations about when and where com-pliance occurs.

Through a comparison of the early working practices of the re-view, with these arguments we can conclude, albeit tentatively, that theprospects for any great transformation in the UN’s ability to engender


human-rights compliance is minimal. The system may have becomefar more amicable, but this is not a reason automatically to assume thesuccessful prosecution of the UN human-rights mandate.

Notes

1. Nigel Rodley, “United Nations Human Rights Treaty Bodies and Spe-cial Procedures of the Commission on Human Rights: Complementarity orCompetition,” Human Rights Quarterly 25 (2003): 883–884.

2. Lyal S. Sunga, “Introduction to The ‘Lund Statement to the UnitedNations Human Rights Council on the Human Rights Special Procedures,’”Nordic Journal of International Law 27 (2007): 283.

3. See analysis in Nazila Ghanea and Ladan Rahmani, “A Review of the60th Session of the Commission on Human Rights,” International Journal ofHuman Rights 9, no. 1 (2005): 126–134.

4. Closing statement to commission, April 25, 2003.5. Elivira Dominguez Redondo, “The Universal Periodic Review of the

UN Human Rights Council: An Assessment of the First Session,” Chinese Jour-nal of International Law 7, no. 3 (2008): 722. See also Juliana Vengoechea-Bar-rios, “The Universal Periodic Review: A New Hope for International HumanRights Law or a Reformulation of Errors of the Past?” International Law Review12 (2008).

6. Nazila Ghanea and Angela Melchiorre, “A Review of the Sixty-firstSession of the Commission on Human Rights,” International Journal of HumanRights 9, no. 4 (2005): 125. For comparison, see Ghanea and Rahmani, “Re-view of the 60th Session.”

7. Patrizia Scannella and Peter Splinter, “The United Nations HumanRights Council: A Promise to Be Fulfilled,” Human Rights Law Review 7, no. 1(2007): 42.

8. Amnesty International, IOR41/008/2005.9. United Nations, “A More Secure World: Our Shared Responsibility.”

10. Paul Gordon Lauren, “‘To Preserve and Build on Its Achievementsand to Redress Its Shortcomings’: The Journey from the Commission onHuman Rights to the Human Rights Council,” Human Rights Quarterly 29(2007): 327.

11. Ibid.12. Redondo, “Universal Periodic Review: An Assessment,” p. 723.13. Felice D. Gaer, “A Voice Not an Echo: Universal Periodic Review and

the UN Treaty Body System,” Human Rights Law Review 7, no. 1 (2007): 129.14. Ibid., p. 130.15. Hurst Hannum, “Reforming the Special Procedures and Mechanisms

of the Commission on Human Rights,” Human Rights Law Review 7, no. 1(2007): 85.

16. See the analysis of the workings of the commission offered by JamesH. Lebovic and Erik Voeten, “The Politics of Shame: The Condemnation ofCountry Human Rights Practices in the UNCHR,” International Studies Quar-terly 50 (2006): 861–888.

17. Press release, “On The Record Briefing by United States PermanentRepresentative to the United States John Bolton, January 25, 2006; availableat www.un.int/usa/o6jrb0125.

Mathew Davies 465

18. Kofi Annan, “UN Secretary General to Commission on HumanRights: We Must Hope a New Era of Human Rights in Iraq Will Begin Now,”statement, April 24, 2003, Geneva.

19. Kofi Annan, “In Larger Freedom: Towards Development, Security,and Human Rights for All,” report of the Secretary General, May 26, 2005,A/59/2005, para. 182.

20. What debate there is significantly rotates around at what “depth”change within actors is necessary before we can say that compliance has oc-curred. Rationalist theories of compliance concern themselves with behav-ioral change. The more sociologically minded constructivists seek to identifynot only behavioral transformation but also more fundamentally ideationalalteration. For a précis of this division, see Jeffrey Checkel, “International In-stitutions and Socialization in Europe: Introduction and Framework,” Inter-national Organization 59, no. 4 (2005).

21. An excellent example of which is offered in Jeffrey Checkel, “WhyComply? Social Learning and European Identity Change,” International Or-ganization 55, no. 3 (2001).

22. Duncan Snidal, “Rational Choice and International Relations,” inHandbook of International Relations, ed. Beth Simmons and Thomas Risse Wal-ter Carlnaes (New York: Sage, 2002), p. 74. Note the similar assertion inChristian Reus-Smit and Duncan Snidal, eds., The Oxford Handbook of Interna-tional Relations, Oxford Handbooks of Political Science (Oxford: Oxford Uni-versity Press, 2008), chapter by Andrew H. Kydd, Methodological Individualismand Rational Choice, p. 439.

23. Frank Schimmelfennig and Ulrich Sedelmeier, The Europeanization ofCentral and Eastern Europe, Cornell Studies in Political Economy (Ithaca, NY:Cornell University Press, 2005), pp. 10, 49.

24. See James G. March and Johan P. Olsen, “The Institutional Dynamicsof International Political Orders,” International Organization 52, no. 4 (1998).

25. Jeffrey Checkel, “Persuasion in International Institutions,” ARENAWorking Paper (2002); http://www.arena.uio.no/publications/wp02_14.htm.

26. Jeffrey Lewis, “The Janus Face of Brussels: Socialization and EverydayDecision Making in the European Union,” International Organization 59, no.04 (2005): 968.

27. Calls to depoliticize the UN human-rights system were nothing new.The Non-Aligned Movement issued a similar call in 1990, calling for the end-ing of “aspects of the functioning of the Commission that accentuate judge-mental, selective or inquisitorial approaches”: draft NAM position paper, 2–3(1990). See discussion in Reed Brody, Penny Parker, and David Weissbrodt,“Major Developments in 1990 at the UN Commission on Human Rights,”Human Rights Quarterly 12 (1990): 563.

28. UN General Assembly, resolution A/RES/60/251, March 15, 2006.29. Ngozi F. Stewart, “International Protection of Human Rights: The

United Nations System,” International Journal of Human Rights 12, no. 1 (2008):101.

30. See Helen Upton, “The Human Rights Council: First Impressionsand Future Challenges,” Human Rights Law Review 7, no. 1 (2007): 32–33.

31. Addendum to Kofi Annan, “In Larger Freedom,” A/59/2005/ Add.1. para. 3. See also Gaer, “A Voice Not an Echo,” p. 110.

32. C .S. R. Murthy, “New Phase in UN Reforms: Establishment of thePeace building Commission and Human Rights Council,” International Stud-ies 44, no. 1 (2007): 44.


33. Lauren, “‘To Preserve and Build on Its Achievements and to RedressIts Shortcomings’: The Journey from the Commission on Human Rights tothe Human Rights Council,” p. 341.

34. Upton, “The Human Rights Council,” p. 34.35. ECOSOC res. 1503 (48), May 27, 1970. See Hannum, “Reforming,”

pp. 83–84.36. The only revision to 1503 procedures as they transitioned to council

stewardship was a shift into the wording of the complaint procedure to allowthe council to consider the extraterritorial actions of states: Theodor Rathge-ber, “The HRC Universal Periodic Review: A Preliminary Assessment,” in Di-alogue on Globalization—Briefing Paper (Geneva: Friedrich Ebert Stiftung, 2008),p. 20.

37. UN General Assembly, resolution A/RES/60/251, March 15, 2006,para. 5(e).

38. Human Rights Council, “Institution Building of the United NationsHuman Rights Council,” A/HRC/5/1, para. 3(a), June 18, 2007.

39. Ibid., para. (g). See also Françoise J. Hampson, “An Overview of theReform of the UN Human Rights Machinery,” Human Rights Law Review 7,no. 1 (2007): 15–18.

40. A fuller account is offered in Redondo, “The Universal Periodic Re-view: An Assessment,” pp. 727–729. Also see “President’s Statement on Modal-ities and Practices for the Universal Periodic Review Process,” A/HRC/8/L.1.

41. Lucia Nader, “The Role of NGOs in the UN Human Rights Council,”International Journal on Human Rights 7, no. 4 (2007): 9–12.

42. See “Information and Guidelines for Relevant Stakeholders on theUniversal Periodic Review Mechanism”; accessible at http://www.ohchr.org/EN/HRBodies/UPR/Documents/TechnicalGuideEN.pdf, para. 3.

43. President’s statement on plenary technical modalities, June 5, 2008,http://www.upr-info.org/IMG/pdf/NV-UPR.pdf, accessed September 15,2009.

44. President’s statement on modalities and practices for the UniversalPeriodic Review Process, 8/PRST/1, April 9, 2008.

45. Gaer, “A Voice Not an Echo,” p. 130.46. Refer to Thomas Diez and Jill Steans, “A Useful Dialogue? Habermas

and International Relations,” Review of International Studies 31, no. 1 (2005)for an introduction to the role of Habermas in international political theo-rizing. A more general discussion of the potentialities in Habermas is in FredDallmayr, “Conversation Across Boundaries: Political Theory and Global Di-versity,” Millennium 30, no. 2 (2001).

47. Thomas Risse, “International Norms and Domestic Change: Arguingand Communicative Behaviour in the Human Rights Arena,” Politics and So-ciety 27, no. 4 (1999): 530.

48. Hannum, “Reforming,” p. 74.49. Laura K. Landolt, “(Mis)Constructing the Third World? Construc-

tivist Analysis of Norm Diffusion,” Third World Quarterly 25 (2004).50. Thomas Risse, “‘Let’s Argue!’: Communicative Action in World Poli-

tics,” International Organization 54, no. 01 (2000): 4.51. Ibid., p. 33.52. Risse, “International Norms and Domestic Change,” p. 535.53. Darren Hawkins, “Explaining Costly International Institutions: Per-

suasion and Enforceable Human Rights Norms,” International Studies Quar-terly 48 (2004): 781.

Mathew Davies 467

54. Harald Muller, “Arguing, Bargaining, and All That: CommunicativeAction, Rationalist Theory, and the Logic of Appropriateness in InternationalRelations,” European Journal of International Relations 10, no. 3 (2004). p. 398.

55. Risse, “‘Let’s Argue!’” p. 33.56. See Jeffrey Checkel, “Social Construction and Integration,” Journal of

European Public Policy 6, no. 4 (1999): 550.57. See Checkel, “Persuasion.” Also refer to Checkel, “Why Comply?”58. Checkel, “International Institutions and Socialization,” p. 813.59. Checkel, “Persuasion.”60. An investigation into the negotiations leading up to the review is of-

fered by Meghna Abraham, “Building the New Human Rights Council: Out-come and Analysis of the Institution-Building Year,” in Dialogues onGlobalization (Geneva: Friedrich Ebert Stiftung, 2007): 34–37.

61. Upton, “The Human Rights Council,” p. 33. The council may also becalled into special session, as with numerous debates on the Middle East sit-uation.

62. Vengoechea-Barrios, “The Universal Periodic Review,” p. 114.63. Ibid., p. 108.64. Gareth Sweeney and Yuri Saito, “An NGO Assessment of the New

Mechanisms of the UN Human Rights Council,” Human Rights Law Review 9,no. 2 (2009): 207.

65. Ibid., p. 212.66. Ibid., p. 209.67. Ibid.68. See Tiffany Henderson, “Towards Implementation: An Analysis of the

Universal Periodic Review Mechanism of the Human Rights Council” (2007);accessible at http://www.upr-info.org/IMG/pdf/Towards_Implementation_by_Tiffany_Henderson.pdf, p. 15.

69. Sweeney and Saito, “An NGO Assessment,” p. 210. Additional detailof this development is offered by Henderson, “Towards Implementation,” pp.17–18.

70. Statement of the Russian Federation, May 12, 2008, Archived Video:Second Universal Periodic Review [Pakistan], available at the Universal PeriodicReview website, www.ohchr.org/en/hrbodies/upr/pages/uprmain.aspx

71. Sweeney and Saito, “An NGO Assessment,” p. 209.72. Ibid.73. Redondo, “The Universal Periodic Review: An Assessment,” p. 729.


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