Empirical evidence on the UPR

A lot of empirical studies have examined the mechanism of the UPR and its effectiveness. This sub-section provides different aspects of empirical evidence on the effectiveness of the UPR. It starts with empirical evidence on the effectiveness of the mechanism in general. Then it moves on to a detailed description of empirical evidence on the role of cultural relativism in the UPR and how this influences the effectiveness of the mechanism. Following this, empirical evidence on the existence of politicization is elaborated on which aligns with the statements made about cultural relativism. Then an elaboration on the role of NGOs and the effectiveness of the UPR is provided.

2.3.1.1 UPR effectiveness

There is empirical evidence that backs up the positive claims of the UPR. Looking only at the numbers, in the first cycle a total of 21,355 recommendations were made of which 15,634 were accepted. During the second cycle a total of 36,331 recommendations were made of which 26,694 recommendations were accepted (UPR-Info, 2018). The study of Matiya (2010) presented evidence that various states that were reviewed up until that moment undertook specific commitments to strengthen the cooperation with special procedures, ratified human rights instruments of which they were not a member yet and took initiatives to implement human rights at the domestic level. In addition, Frazier (2011) measured whether individual recommendations had been fully, partially or not implemented at all from the beginning of the UPR up until when he conducted his study. The main conclusion of his study was that the UPR encouraged countries of all development levels to protect human rights leading to the acceptance of recommendations. Moreover, the more developed countries were, the more successful they were at implementing a higher percentage of the accepted recommendations.

The study of Higgins (2015) on advancing the rights of minorities and indigenous peoples showed that Member States seemed to take the UPR and the process quite seriously. Higgins came to this conclusion because it was apparent that Member States engaged fully in the process and provided reports on their progress of their human rights situation. This engagement has resulted in light being shed on problematic human rights situations. Furthermore, the statement that countries seem to take the UPR seriously also comes from the fact that over time there had been an increase in accepted recommendations.

2.3.1.2 Cultural relativism

Empirical evidence on the presence and influence of cultural relativism in the UPR has been found as well. Within the HRC, there is the concept of regional grouping, as mentioned before. This regional grouping has resulted in some form of politicization as states from the same regional grouping praise each other’s achievements instead of providing each other of critical comments on their human rights situation, such as China praising its neighboring states (Smith, 2011) or African states giving each other ‘friendly recommendations’ (Abebe, 2009).

This regional politicization is related to cultural relativism in the sense that Member States of the same regional group have similar cultures and thus have similar values regarding human rights. This is also attested by a study Rathgeber (2013) conducted and he found that Asian and African Member States present most of their recommendations to other Member States of their own regional groupings. Additionally, the recommendations these states make consist mostly of appraisals for what these states already have done. Furthermore, in a recent study of Patel (2017), cultural relativism in the UPR was examined. Results showed that the argument of cultural relativism is often used in situations where the issues at stake are controversial and have a certain relationship with the culture of a country, either positive or negative. These results are backed up by the study of Carraro (2017), which also showed that countries use the argument of cultural relativism instrumentally in the review process as a reason why a certain recommendation is not accepted or implemented.

Additional studies have presented evidence as well that cultural relativism does indeed play a role in the UPR process (McMahon, 2010; McMahon & Ascherio, 2012). There are examples of Member States refusing to change domestic law with regards to human rights of LGBTI persons during the UPR process because of culture. Cowell & Milan (2012) carried out several case studies in which they analyzed the decriminalization of sexual orientation through the UPR. Member States such as Togo and the Republic of Gambia refused to change their legislation regarding the human rights of LGBTI persons because of their cultural values.

However, there are also examples of Member States that do change their domestic laws because of the UPR, such as the Member State São Tomé and Principe which showed its full commitment to decriminalize and stated during its session in 2011 that criminalizing sexual orientation was no longer applied in their country and that their new Penal Code would repeal this ‘criminal offence’ (Cowell & Milan, 2012).

Based on the evidence, culture does seem to play a role with regards to accepting recommendations in human rights and specifically LGBTI rights. Culture has been the number one argument against the recognition of SOGI from the beginning. At the Beijing 1995 World

Conference on Women where the idea of SOGI was first mentioned immediately resulted in certain Member States refusing to acknowledge it based on the notion that it was a ‘Western’

concept which offended their religious and cultural morals and values (Carroll, 2013). Another example of Member States strongly opposing LGBTI rights was in 2001 when the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions provided a report in which she included information and facts on sexual minorities. This resulted in some Member States strongly objecting and urging that this report should be renewed without any reference to sexual minorities at all (Carroll, 2013). LGBTI rights are frequently rejected with the argument that these rights go against the nationalist and traditional culture of a country. This can be seen through the analysis of Hoad (2007) in which the debate of homosexuality and the LGBTI movement in general was analyzed in Africa. The main conclusion of this study was that the rejection of and hostility towards LGBTI rights was based on nationalistic views and that it was created by the ‘West’ (Schlanbusch, 2013). This is attested by Murphy (2013) who concluded that the whole idea of LGBTI rights are not in line with ‘traditional values’ and that these values have to be included in the human rights discussion as well and even make human rights dependent on these values.

There are other examples of SOGI being a controversial issue in countries which refuse to recognize it because it is not in line with their culture, e.g. at the 11th session of the HRC in 2009 a draft resolution was introduced by the Russian Federation in which ‘traditional values of human kind’ were promoted. Shortly after, this draft was being supported by Islamic States, the Vatican, China and Cameroon which all had some notion of preserving their traditions from a cultural relativist perspective (Carroll, 2013).

Altogether, SOGI seems to be a controversial issue for countries with a cultural relativist perspective and which are opposed to acknowledge LGBTI rights as human rights.

2.3.1.3 Politicization

Aside from the regional politicization, which is can be linked to cultural relativism, this sub-section will elaborate more on politicization in general. Empirical studies have revealed that politicization indeed is present in the UPR. Matiya (2010) found that countries with close ties praise each other on the positive human rights records instead of focusing on the aspects that are still problematic in the regarding state and that the state that is reviewed can decide which issue will be discussed, how it will operate and sometimes even the outcomes, which was partly discussed in the previous sub-section. Voeten & Terman (2018) carried out a study

in which they examined the politicized character of the UPR and whether it indeed was influential during the process. Their results showed that states are indeed more lenient towards their strategic partners. Strategic allies will less likely condemn each other very harshly and they spare each other’s strategic partners in the review process. States always behave to further their own (material) interests and are dependent on other states in this process and thus strive to avoid alienating the states they are dependent on. These strategic relations influence the way states interact with each other in the international community. However, results also showed that even though allies might praise each other, allies criticizing each other take the recommendations much more seriously. Recommendations have a higher chance of being accepted when they are made by strategic allies and are less likely to be shrugged off. In accepting recommendations, states need to factor in the political context because the acceptance or rejection of a recommendation reveal different signals. Carraro (2017) also carried out a study regarding the politicization of the UPR. Results showed that politicization was indeed present in the UPR but she also concluded that politicization does have some positive characteristics to it. The political element proves to increase the willingness of Member States to seriously commit to the review and accept recommendations and prevent loss of face with its political allies. When a Member State accepts a certain recommendation, the recommendation becomes a political commitment. Thus, Member States are also politically motivated to implement recommendations to uphold their reputation.

2.3.1.4 NGO Involvement

Several studies on the role of NGOs on the effectiveness of the UPR have been carried out as well. An example of how effective NGOs really are in the process of the UPR, is found in the case of Lebanon. Before Lebanon had its review in the first cycle of the UPR, several civil society stakeholders such as NGOs cooperated with the Office of the UN High Commissioner for Human Rights (OHCHR) and the Friedrich-Ebert-Stiftung – a political foundation that promotes a free society and a democratic governance in countries. This resulted in a coalition of NGOs that presented its report during a conference in Beirut with the aim to get media and public attention. The NGOs involved the Lebanese parliament as well. As a preparation for the UPR session, this coalition lobbied several embassies located in Beirut.

During the review itself, the NGO coalition arranged a side event in which the Lebanese government delegation was also present. Additionally, the coalition lobbied the government in its home country to ensure that the government accepted 14 recommendations. After the UPR

session, the NGO coalition arranged a follow-up meeting in which the UPR recommendations were highlighted and how the implementation of the accepted recommendations should be carried out. All of this shows how effective NGOs can be outside the formality of the UPR itself (Rathgeber, 2013).

Furthermore, NGOs carry out power by referring to accepted recommendations in their domestic work (McGaughey, 2017). Moss (2010) carried out a study in which it was identified that the UPR presented several opportunities for NGOs. First, NGOs had the possibility to engage with HRC members in Geneva. Second, NGOs used the UPR as a lobbying tool on a domestic level. Additionally, McGaughey (2017) also carried out a study in which the role of NGOs was identified in the process of the UPR. The results showed that the UPR had created closer working relationships between different key actors. Specifically, the working relationship between the state that is under review and NGOs typically becomes closer because of the requirement that states must report on their consultation with NGOs which gives NGOs a status in the process. It pushes NGOs and governments to sit down together to discuss the issues at hand. Furthermore, the UPR has made it possible for international NGOs (INGOs) and domestic NGOs to improve their relationship. Specifically, some INGOs that are in Geneva play a role in giving support and facilitating domestic NGOs to interact with UN human rights mechanisms, such as the UPR. There have been cases in which INGOs acted as the spokesperson on behalf of some domestic NGOs and thus formed a coalition. These are especially important when there are countries that do not make it possible for domestic NGOs to criticize their governments.

In addition, the involvement of NGOs is also related to the perspective a country has on human rights. In a study conducted by Abebe (2009), results showed that cultural relativist states had a different view on the role of NGOs than universalist states. Specifically, evidence was found that African states wanted to restrict the involvement of stakeholders such as NGOs while Western states highlighted the importance of NGOs.