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Alternatives 35 (2010), 449468

Rhetorical Inaction? Compliance and the Human Rights Council of the United Nations
Mathew Davies*

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 councils 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

*Department of International Relations, Australian National University, Canberra

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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

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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 Risses 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 UNs 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:

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Lets 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

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with investigating shortcomings in the UN opined: States lacking a demonstrated commitment to the promotion and protection of human rights could not properly set standards to reinforce human rights.9 A shudder ran through the United Nations when on May 3, 2001, the United States let its membership of the commission lapse, in part because of the general air of unilateralism of US foreign policy, but also because of the plummeting regard that the commission was held in by Washington. Accentuating the sense of malaise, states that gained membership in 2001 included such luminaries of human rights protection as the Sudan, Sierra Leone, Uganda, and Togo.10 Worse still, the Libyan delegate was elected chair of the commission in 2003. Remarkably it was not only the election of states of questionable commitment to rights that undercut the commission, it was the supine agreement to this process by the Western democracies, the very states that one would expect would be most vociferous in their defense of the commissions integrity. European Union states adopted a position of careful neutrality during debates over Libyas election, and it was felt that Western states were using their membership of the commission to keep members from taking meaningful action against them or their allies.11 The game of majorities governing the adoption of decisions [by the commission] meant in practice that some states are immune from scrutiny whilst others are persistently criticised.12 This question of the political usages of membership merges into the second strand observed by Dominguez-Redondo, the actual use of the various procedures and mandates at the commissions disposal. The most contentious activities of the commission were the public discussions of alleged human rights violations where country specific resolutions [were approved] by a vote of the member states.13 Such resolutions tended toward being targeted at a specific issue, and the state in question would be instructed . . . to adopt the changes demanded.14 Such debates were often identified as among the worst examples of politicization in the former Commission.15 This highly confrontational approach, pitching the commission against the state under review, provoked a very strong backlash among states that resented being placed under inquisition.16 The intersection of these two avenues of criticism would overwhelm the commission by the mid-2000s. In part, criticism of the commission emerged from the usual suspects. US ambassador to the UN John Bolton described the commission as a completely broken mechanism for intergovernmental decision-making.17 More remarkable, however, was the broad consensus this opinion came to generate 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 in recent months have made your [the commissions] voice not stronger but weaker.18 Annans call was not heeded, and by 2005 in his report In Larger Freedom: Toward Development, Security, and Human Rights for All, the Secretary-General explicitly recognized the declining credibility and professionalism of the commission and called for major reform to the UNs human-rights promotion efforts.19

Instigating Persuasion? Compliance and Depoliticization Within the Council Understanding these criticisms of the commission is vital because they set the backdrop against which its replacement was constructed. Understanding the scale and meaning of the revisions requires more than simply outlining the institutional and procedural revisions put in place in 2006 and 2007. What is required is an understanding of what compliance is and how that compliance is generated by different actors, institutions, and processes. This provides a baseline against which to interrogate the political reforms to the UN body, allowing us ultimately to weave together the empirical and conceptual reasoning, furthering our understanding of just how significant the revisions were. What then is compliance? Answers to this question emerge from the study of socialization in international politics, a particularly relevant field given its intimate concern with how actors influence each others behavior and identity. Compliance refers to the phenomena of one actor coming into alignment in behavioral practice with the standards and expectations of another, and in the coming discussion, when using the term compliance pressures I refer to those political practices instigated by actors that articulate the desire to influence others and promote those changes required to bring coherence.20 Relevant here is the variation in scholarly opinion on just how it is that compliance pressures develop. There exist different strategies through which any actor or institution can develop pressure to alter the behavior of others, to bring them into compliance with specific standards and expectations. Much of the academic literature that discusses compliance is pitched at quite some level of abstraction, preoccupied with the broader theoretical and metatheoretical debates.21 Given this, we must continue with caution, and the intention in the coming discussion is to focus explicitly on two different political strategies that actors can deploy to develop compliance. These two positions emerge from the broader debate that characterizes much metatheorizing in international relations: rationalism versus constructivism (or

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more generally sociological approaches). These two understandings of compliance represent, given their emergence from more abstract reasoning, ideal types of compliance pressure and as such serve to delineate the parameters of the coming discussion. Note that the coming analysis does not focus on the inherent strengths and weaknesses of these frameworks; nor does it aim to be definitive of the various ways that theoretical work can inform the study of compliance; rather, it looks specifically at how they understand compliance pressures to be generated, so as to provide a firm footing to analyze the review process. Those whose work is rational choice in nature, referring to the broad array of specific theories that rest on a methodological approach that explains both individual and collective outcomes in terms of individual goal seeking under constraints,22 suggest that compliance pressure results from the asymmetry of power between actors. Actors can induce others to comply with them because they can strategically manipulate rewards and punishments, which can be material or social in nature. These most often rely on some form of institutional hierarchy where some sit in judgment over others and provide clear correctives that must be followed. There is little discussion about what is right, the unwritten assumption being that those sitting in judgment over others are correct and the offending party is in some way wrong. Such an approach underpins the External Incentives Model of Schimmelfennig and Sedelmeier, which, they argue, persuasively drives forward the ability of the European Union to alter the legal frameworks of candidate countries to the union.23 Against this understanding of compliance driven ultimately by power asymmetries, others, most notably adherent to the various sociological approaches among which constructivism holds center stage, emphasize mechanisms where compliance is promoted through persuading parties as to the rightness of changing their behavior, independent of any material or social sanctions. Known broadly as the logic of appropriateness (as opposed to the logic of consequences that rationalists suggests explains state behavior) constructivists assume actors to be motivated by internalized identities, values, and norms.24 Compliance here is generated by those strategies that help to alter identities and is broadly known as persuasion. It emphasizes the free and open discussion between participants, who make recourse to the better argument (that which freely wins support).25 Such actors are ideally arranged horizontally (meaning none, either individually or collectively, occupies a position of superiority over any other) and all are empowered to contribute and shape discussion. Jeffrey Lewis has identified fascinating examples of this type of pressure in his study of decisionmaking within the European Union.26

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The key issue to remember when making the comparison between these ideals and the revised UN human-rights system is depoliticization. If the abuses of the commission mandate were attributable to the corrosive effects of politicization, then its replacement would in some way have to depoliticize the human-rights activities of the UN.27 The key question here is, what compliance pressures arise within a system explicitly designed to be as depoliticized as possible? The argument to be developed from this point onward is that both the structural revisions represented by the council and the procedural innovations of the review, when viewed together, represent a shift toward what we would understand a persuasion-based compliance system should look like. The first task is to outline the revisions of the council and review and how these emphasize a depoliticized environment that moves the UN toward compliance by persuasion. Then I shall indicate how this transition has not occurred fully. Drawing on Thomas Risses understanding of communicative action, I will show how in reality the actions of the council seem to fall between the two extreme positions just outlined. The commission was swept away and replaced by the Human Rights Council in General Assembly Resolution 60/251.28 The council departed from the traditional membership practices of the commission through cutting six seats, slimming the body to forty-seven members. While this reduction was considerably smaller than Annan had recommended, and that, separately, the United States had pushed for (wondering aloud whether democracy should be made a conditional entry requirement to any revised body),29 when viewed alongside other reforms it signifies a definite attempt to alter the structural conditions within the council. To ensure membership rotation and dissipate the fact that some states were able to sit on the commission in perpetuity, a limit of two terms was set, in an attempt to defuse charges of partisanship and favoritism. In an attempt to institute some sort of filtering system to ensure states were not seeking membership to avoid scrutiny, it was decided that states that join the council must commit themselves to human rights and, what is more important given that this commitment is not legally binding, submit to review themselves.30 Kofi Annan believed that only if all states of the UN submitted themselves to investigation could the selectivity bias that had kept some states perennially on or off the commissions agenda be removed.31 Although membership was not to be conditional, these revisions did create a clear expectation that states sitting as members of the council would adhere to high standards, as well as providing standards to use in comparing member-state behavior, ultimately allowing

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suspension from council membership by a simple two-thirds majority in the General Assembly.32 The effects of this change were immediately apparent. Those with a demonstrable commitment to human rights were 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 steps toward Annans goal of reforming UN human-rights efforts, given that politicization occurred not only in the composition of the commission but also its very functioning. Responding to this issue, the framers of the council adopted a cautious approach. They retained a large degree of continuity between the working practices of the commission and the councils. However, they also introduced a wholly new procedure that had no progenitor in the commissions ways of working: the Universal Periodic Review itself. Areas of continuity included assuming responsibility for existing special rapporteurs, whether geographically or thematically organized.34 Perhaps most importantly, so-called 1503 procedures were maintained. The 1503 procedures, instigated from 1970 onward, were designed to provide the commission with the power to provide countryspecific oversight of states against which allegations had been made.35 By 2005, the commission had instigate eighty-two such investigations,36 and they would remain a vital part of the councils operation. It was in the wholly new Universal Periodic Review process, however, that the main drive to depoliticization, and thus persuasion, was housed. While details of the review process were not part of resolution 60/251, being left to later discussions of the council itself, the General Assembly asserted that the workings of the council would be
based on objective and reliable information, of the fulfilment by each state of its human rights obligations. . . . Based on commitments in a manner that ensures universality of coverage and equal treatment with respect to all states; the review shall be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the state concerned.37

Such aims took political form when the precise working modalities of the review were finalized in council resolution 5/1 of June 18, 2007, endorsed by General Assembly resolution 62/434 of December 2007. The review was charged with promoting the universality, interdependence, 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 depoliticized process of discussions between parties, then the precise

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modalities of any given review procedure powerfully reinforce this impression.40 First the state under review is permitted to take the floor and report on human rights within the country, followed by questions and comments from the member states. Information to facilitate these discussions is drawn from a state submission and preparatory work by the Office of the High Commissioner on Human Rights, which includes both a recap of extant UN information on the state under review as well as a summary of third-party stakeholder interest (particularly NGOs).41 The state under review may choose to respond to all, some, or none of the questions presented to it, and is neither penalized nor chastized for omissions. During deliberations, and acting as the boundaries of what is a legitimate and illegitimate question, the members of the review process must concern themselves with the obligations engendered under the UN Charter itself, the Universal Declaration of Human Rights, and any human-rights instruments that the state under review is party to.42 At the close of the dialogue, an outcome report is generated that contains the recommendations previously forwarded. This report is approved by both the Troika (a three-strong team of HRC member-states that shepherd through each individual review) and the state in question. The report is finally submitted to the next full session of the council for final discussion by states this time joined by interested NGOs before the report is formally adopted.43 Followup mechanisms have been created to monitor the implementation of the conclusions and recommendations that are contained in the final document.44 The cooperative mechanisms at the heart the review, together with the requirement of the consent of the state under scrutiny, would appear to mitigate against any forceful sanction procedure or any final communiqu that was excessively critical or concluded that a states behavior was in some way absolutely wrong, as characterized much of the commissions efforts at rights promotion. The review centralizes a horizontally arranged, discursive, and cooperative environment. The nonadversarial, dialogue-centered approach, together with the attempted depoliticization of the process through an ultimately universal and rotating spotlight, was perceived as a dramatic step towards changing the dynamic of the UNs main human rights body.45 States under investigation are given two opportunities to address questions in a voluntary fashion. Furthermore, the reviewed state must agree to the nature and content of the final report. The interest here was to reduce the partisanship of previous UN efforts and promote the necessity of discussion, compromise, and agreement in the formulation of the country reports. In terms of the notions of compliance introduced previously, it seems clear that these reforms indicate on first inspection a parallel with persuasion. The

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diffusion of tensions required for open debate and discussion to flourish feeds directly into the intentions behind, and practices of, the council.

The Middle Position: Rhetorical Action Within the Council The transition from commission to council appears to conform to a move toward a persuasion-based compliance system. There remains, however, the thorny question of power and its many roles within the debates between states within the review process. Jrgen Habermass account of discourse occupies central place when discussing the workings of persuasion, and it pays now to focus on his argument. Put succinctly, Habermas argues that in his idealized lifeworld, true discourse (and for our purposes this signifies conditions where persuasion exists) occurs in the total absence of power considerations. This is termed communicative action or ideal speech,46 and focuses very much on the way in which argumentative and discursive processes challenge the truth claims inherent in identities and perceived interests.47 Good ideas, not powerful actors, win arguments, and as such are the drivers of compliance. Were persuasion really to be driving the review, then we would expect participants to be convinced solely by the better argument presented (whether rights should or should not be endorsed) and to never make recourse to any inequality between them to promote their own position over any other. There are significant flaws in using a compliance model based on persuasion to investigate the review when that model is ultimately rooted in assumptions that are unrealistic. Is it really the case that states that participate in the council and review have forgotten about power? It would have to be were persuasion unambiguously the explanation for how the council operates, and yet there can be no doubt that politics will be the primary consideration for many countries within the review.48 Many have argued that the Habermasian focus solely on truth-seeking arguing between actors is flawed when it comes to explaining the contentious world of political activity and that the discursive process between actors is characterized not by free debate but by actors advancing their arguments via the exploitation of asymmetries between them, be they material or social in nature.49 One does not, however, have to adopt a Foucauldian analysis to believe that on a pragmatic level, the notion of ideal speech is divorced from the political context of any compliance attempt, a context that necessarily interfaces with the relative power of those engaged in discussion.

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We are left with a quandary. The reorganization of the UN humanrights machinery marks a seemingly definite shift away from the practices of the commission. Superficially depoliticization has instigated a system where persuasion-based processes potentially can come to the fore. Yet, to conclude unambiguously that persuasion has been instigated seems to require us to commit to an idealized Habermasian account of actors and discourse that surely does not exist within the politically charged UN system. What then is the solution? Fortunately, there exists an alternate conceptual framework that addresses this issue, one that is based on Thomas Risses rearticulation of the work of Habermas into an uneasy, but conceptually useful, middle position between traditional rational choice and constructivist accounts of compliance.50 Risse takes the idea of communicative action out of its comfort zone, attempting to see just how far he can push the concept. His concern is to link the understanding of compliance generated by persuasion with the belief that power considerations are always present in the political world. Risse attempts to assuage concerns about Habermass unrealism by weakening the Habermasian commitment to ideal speech. He suggests most relevantly international institutions . . . provide an information rich and normative framework structuring interactions.51 In such circumstances, Risse suggests that we can relax the assumption that power imbalances in these contexts are necessarily destructive of the Habermasian insight.52 What this results in is a political strategy to promote compliance that hybridizes an awareness of power imbalances in politics with the insights about depoliticization and discourse that emerge from the study of persuasion. Such an account can incorporate the discursive approach that the review mechanism centralizes with the continued relevance of political motivation for actors engaged in any one discussion. Risse terms this middle position rhetorical action.53 Rhetorical action rests on the use of language to convey information and preferences from actor to actor.54 Actors therefore discuss the right way forward, but they 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 of power in discussions. This is far more comfortable as the conceptual framework for understanding the council and review than either of the extreme positions covered previously. The depoliticization that sits as the overwhelming motive behind the council certainly did represent a move toward friendly discussions over the more confrontational approaches of the commission before it. The review especially has empowered states that go through the process, giving them much control over both the substance of discussion as well as the final report. The review possesses no ability to

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sanction punishments on states; instead, the review outcome maps routes forward for the state under review. However, it would be folly to expect that these reforms have magically released this part of the UN system from the bonds of politics entirely. As Viera De Mello noted, the United Nations is composed of sovereign states, and as we shall shortly see, even those diplomats most committed to questions of rights rarely forget who is their employer. Risses middle position allows us to conceive of discourse and power coexisting and grafts a Habermasian commitment to communicative action onto the sophisticated social architecture of international organizations. In a world of continuous political contention between states and their representatives, the structure and practices of the council are perhaps the best that 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 enhance the protection of human rights by the member states. Understanding the shift in compliance attempts provides a platform to probe the potential success of the review because the conceptual study of compliance has developed a sequence of expectations of what circumstances are conducive to successful compliance pressures. Risse himself provides some account of where rhetorical action is likely to occur, presenting broad requirements that actors find themselves in novel environments, are relatively unaware of their own positions, and are separated from others by irreconcilable difference.55 Enhancing these rather under-specified circumstances, we can turn to certain scope conditions, referring to the conditions under which compliance pressures are assumed to occur and be successful. Jeffrey Checkel has sought to identify these conditions in specific relation to what he terms social learning.56 The terminology here can be confusing. Is social learning the same as rhetorical action, or indeed as persuasion? Given the joint Habermasian-inspired foundation for both persuasion and rhetorical action, I believe it is justified to draw on Checkels work to develop an understanding of what would be necessary for successful compliance by way of rhetorical action.57 The scope conditions include the requirement that the target state is in a novel and uncertain environment and has few ingrained prior beliefs. Within the grouping where we are looking for compliance, the agent attempting enforcement of standards must be considered authoritative. Those promoting change should engage in serious deliberative 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 discussion, when it does occur, is protracted and enduring; that the depoliticization of the context in which discussions occur is meaningful and sustained; and those engaged in the discussion have a truthful commitment to the process.59 In practice, the running time of the review was brief. It was not until April 718, 2008, that the review held its first substantive session, and looking at the above conditions we can see clearly that the review is not a particularly effective mechanism within which rhetorical action can flourish.60 First, the review simply has insufficient time to go into detail about the countries that are under review. Here we must differentiate between the total amount of time the council is in session and the amount of time specifically dedicated to the review of any one state. The council meets regularly, with three scheduled sessions that must total not less than ten weeks out of the year, substantially longer than the six-week, single session the commission instigated.61 However, the simple provision of an institution where rights discussion occurs for longer than previously does not automatically infer any particular improvement over the commission. What is vital is the amount of time any one particular state is the focus of the review mechanism itself. Here the situation is far less positive. There is simply insufficient time to develop the enduring discussions that Checkel suggests so powerfully as being necessary for persuasion to be successful. The first session in 2008 dealt with sixteen countries, and it soon became clear that it was impossible to address all of the human rights issues that could potentially arise.62 States had a mere three hours to present their positions and respond to questioning. This renders the review more of a schematic overview of the situation in any given country, rather than a detailed appraisal. This enforced brevity is also clear when one considers the amount of information that goes into a review. The written report of the state under review is limited to twenty pages, and the document of additional information provided by the Office of the High Commissioner on Human Rights has to be a mere ten pages.63 Additional stakeholders, including NGOs and national human-rights instruments, can submit another ten pages of collated opinion, again under the aegis of the high commissioner.64 There is, also, a worrying silence of four years between the time when a state is put under review and the follow-up investigation of that review. It is not unsurprising that these circumstances resulted in final recommendations being so broad that monitoring their implementation would be difficult.65 While the system generally worked well from a bureaucratic perspective, there remains the possibility of

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misuse of time in the future, with some states dedicating up to forty minutes to their initial report, curtailing the time available for questioning.66 This was not necessarily a negative tactic, but it certainly limited room for discussion. Countries such as Argentina, Ghana, Peru, and Romania acted in this way in the first and second sessions of the review.67 We must be suspicious of the commitment of states and their delegations to discussing their human-rights situations. While the psychological profiling of delegates required to truly uncover their motives and amenability to differing perspectives is beyond the scope of this article, a focus on some of the ways in which states have engaged with the review tellingly reveals their commitment to dialogue.68 An insidious development has been noted where states stack the audience of the review meeting at which they are under review with friendly backers who use the occasion not to probe compliance but to offer platitudes and congratulations on the efforts so far. This practice challenges the principle of transparency and objectivity and diminishes the possibility that the Review can actually fulfil its mandate.69 The Russian Federation in its comments on Bahrain, Algeria, and Pakistan was largely congratulatory. The federation spent some two of its three minutes of allotted time in the Pakistan review in platitudes.70 Exacerbating this, many of the most critical questions leveled against states were simply ignored in favor of responding to less taxing issues. This significantly retards the ability of the review process to adequately raise and discuss the most sensitive issues.That a state under review can block certain issues helps to defuse the negative ways 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 between the delegations sent to the review and the pressures on them from the state they represent. Representatives to any discursive situation should be empowered to alter the political behavior of the state they represent. The evidence here is mixed. Sweeny and Saito note that states tended to field large high-level delegations, signifying that the process was being taken seriously by the governments under review.71 More worryingly, however, the representatives sent by such countries are often drawn from foreign ministries, not ministries of justice or human rights, indicating that the review is often viewed as a foreign affairs exercise rather than a national process for the examination and improvement of human rights protection and promotion.72 There is good cause to be wary of such a situation.73 Does the regular presence of diplomats as opposed to those concerned with justice and home affairs denude the process of all utility? Perhaps not, but it does powerfully reinforce the impression that the states under

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review see the process as less an opportunity for frank discussion of rights and more an exercise in foreign policywith all the politicization that flows from that emphasis. * * * The ways in which the United Nations has sought to exert pressure on its members over issues of human rights has varied over time. The commission represented perhaps the naive belief that direct criticism, exhortations, and public reprimands would be sufficient to engender compliance with preagreed standards. This strategy may well have proven adequate were states all equally committed to international oversight concerning their compliance with human rights, but it proved inadequate in the face of sustained state recalcitrance. As a consequence, and despite the definite successes of the commission, perceptions of its ultimate inadequacy for the tasks set it mounted through the 1990s, reaching a crescendo with Kofi Annans reform drive during his second term as Secretary-General. In place of the hierarchy-driven commission, the criticisms of politicization resulted in the Human Rights Council, which centralized consensus and discussion. This was not only remarkable in a political sense. Conceptually, the council represented a shift in the UN effort toward what appears to be persuasion-based efforts. The key word there is toward, because while efforts at depoliticization have most certainly altered the structural and procedural nature of UN human-rights activities, it most certainly has not removed the political entirely from the equation. Given this partial alteration, I have argued that the processes and interactions within the review mechanism are most akin to compliance pressures that subscribe most closely to Risses reworking of Habermasian notions of communicative action. Here power and persuasion sit side by start as part of the same intellectual schema. The novelty of the review is not a reason to not pose questions as to its potential success over the longer term, although it does caution against drawing any emphatic conclusions at this point. The linkage I have sought to establish between the council and review as a revision to the now defunct commissions way of promoting compliance, and the switch toward a persuasive approach that this embodies, allows us to probe potential success over the longer term. We can do so because there are preexisting expectations about when and where compliance occurs. Through a comparison of the early working practices of the review, with these arguments we can conclude, albeit tentatively, that the prospects for any great transformation in the UNs ability to engender

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

Notes
1. Nigel Rodley, United Nations Human Rights Treaty Bodies and Special Procedures of the Commission on Human Rights: Complementarity or Competition, Human Rights Quarterly 25 (2003): 883884. 2. Lyal S. Sunga, Introduction to The Lund Statement to the United Nations 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 the 60th Session of the Commission on Human Rights, International Journal of Human Rights 9, no. 1 (2005): 126134. 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 Journal of International Law 7, no. 3 (2008): 722. See also Juliana Vengoechea-Barrios, The Universal Periodic Review: A New Hope for International Human Rights Law or a Reformulation of Errors of the Past? International Law Review 12 (2008). 6. Nazila Ghanea and Angela Melchiorre, A Review of the Sixty-first Session of the Commission on Human Rights, International Journal of Human Rights 9, no. 4 (2005): 125. For comparison, see Ghanea and Rahmani, Review of the 60th Session. 7. Patrizia Scannella and Peter Splinter, The United Nations Human Rights 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 Achievements and to Redress Its Shortcomings: The Journey from the Commission on Human 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 James H. Lebovic and Erik Voeten, The Politics of Shame: The Condemnation of Country Human Rights Practices in the UNCHR, International Studies Quarterly 50 (2006): 861888. 17. Press release, On The Record Briefing by United States Permanent Representative to the United States John Bolton, January 25, 2006; available at www.un.int/usa/o6jrb0125.

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18. Kofi Annan, UN Secretary General to Commission on Human Rights: 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 occurred. Rationalist theories of compliance concern themselves with behavioral change. The more sociologically minded constructivists seek to identify not only behavioral transformation but also more fundamentally ideational alteration. For a prcis of this division, see Jeffrey Checkel, International Institutions and Socialization in Europe: Introduction and Framework, International Organization 59, no. 4 (2005). 21. An excellent example of which is offered in Jeffrey Checkel, Why Comply? Social Learning and European Identity Change, International Organization 55, no. 3 (2001). 22. Duncan Snidal, Rational Choice and International Relations, in Handbook of International Relations, ed. Beth Simmons and Thomas Risse Walter Carlnaes (New York: Sage, 2002), p. 74. Note the similar assertion in Christian Reus-Smit and Duncan Snidal, eds., The Oxford Handbook of International Relations, Oxford Handbooks of Political Science (Oxford: Oxford University Press, 2008), chapter by Andrew H. Kydd, Methodological Individualism and Rational Choice, p. 439. 23. Frank Schimmelfennig and Ulrich Sedelmeier, The Europeanization of Central 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 Dynamics of International Political Orders, International Organization 52, no. 4 (1998). 25. Jeffrey Checkel, Persuasion in International Institutions, ARENA Working Paper (2002); http://www.arena.uio.no/publications/wp02_14.htm. 26. Jeffrey Lewis, The Janus Face of Brussels: Socialization and Everyday Decision 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 ending of aspects of the functioning of the Commission that accentuate judgemental, selective or inquisitorial approaches: draft NAM position paper, 23 (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 Impressions and Future Challenges, Human Rights Law Review 7, no. 1 (2007): 3233. 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 the Peace building Commission and Human Rights Council, International Studies 44, no. 1 (2007): 44.

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33. Lauren, To Preserve and Build on Its Achievements and to Redress Its Shortcomings: The Journey from the Commission on Human Rights to the 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. 8384. 36. The only revision to 1503 procedures as they transitioned to council stewardship was a shift into the wording of the complaint procedure to allow the council to consider the extraterritorial actions of states: Theodor Rathgeber, The HRC Universal Periodic Review: A Preliminary Assessment, in Dialogue on GlobalizationBriefing 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 Nations Human Rights Council, A/HRC/5/1, para. 3(a), June 18, 2007. 39. Ibid., para. (g). See also Franoise J. Hampson, An Overview of the Reform of the UN Human Rights Machinery, Human Rights Law Review 7, no. 1 (2007): 1518. 40. A fuller account is offered in Redondo, The Universal Periodic Review: An Assessment, pp. 727729. Also see Presidents Statement on Modalities 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): 912. 42. See Information and Guidelines for Relevant Stakeholders on the Universal Periodic Review Mechanism; accessible at http://www.ohchr.org/ EN/HRBodies/UPR/Documents/TechnicalGuideEN.pdf, para. 3. 43. Presidents statement on plenary technical modalities, June 5, 2008, http://www.upr-info.org/IMG/pdf/NV-UPR.pdf, accessed September 15, 2009. 44. Presidents statement on modalities and practices for the Universal Periodic 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 theorizing. A more general discussion of the potentialities in Habermas is in Fred Dallmayr, Conversation Across Boundaries: Political Theory and Global Diversity, Millennium 30, no. 2 (2001). 47. Thomas Risse, International Norms and Domestic Change: Arguing and Communicative Behaviour in the Human Rights Arena, Politics and Society 27, no. 4 (1999): 530. 48. Hannum, Reforming, p. 74. 49. Laura K. Landolt, (Mis)Constructing the Third World? Constructivist Analysis of Norm Diffusion, Third World Quarterly 25 (2004). 50. Thomas Risse, Lets Argue!: Communicative Action in World Politics, 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: Persuasion and Enforceable Human Rights Norms, International Studies Quarterly 48 (2004): 781.

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54. Harald Muller, Arguing, Bargaining, and All That: Communicative Action, Rationalist Theory, and the Logic of Appropriateness in International Relations, European Journal of International Relations 10, no. 3 (2004). p. 398. 55. Risse, Lets 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 offered by Meghna Abraham, Building the New Human Rights Council: Outcome and Analysis of the Institution-Building Year, in Dialogues on Globalization (Geneva: Friedrich Ebert Stiftung, 2007): 3437. 61. Upton, The Human Rights Council, p. 33. The council may also be called into special session, as with numerous debates on the Middle East situation. 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 detail of this development is offered by Henderson, Towards Implementation, pp. 1718. 70. Statement of the Russian Federation, May 12, 2008, Archived Video: Second Universal Periodic Review [Pakistan], available at the Universal Periodic Review 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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