Theories on the UPR

There are several theories and factors that explain why the UPR is an effective mechanism. In this section, effectiveness is defined in terms of the improvement of human rights including both accepting recommendations and implementing them. Several authors

have examined the UPR through different theories. This sub-section provides a summary of the theories that have been found to explain the effectiveness of the UPR the best.

2.2.3.1 Deliberative theory

The first theory that explains the effectiveness of the UPR is the deliberative theory.

Milewicz & Goodin (2016) compared this theory to the mechanism of the UPR itself and found that it was a comprehensive theory in explaining the UPR. According to Milewicz & Goodin (2016), the UPR has the possibility to bring about cooperative deliberation across the international system. This claim finds its foundation in deliberative theory. This theory states that actors can learn more about each other’s position and perspective, desires and constraints purely by conversing with each other. Political systems can be assessed in terms of deliberative capacities, by looking at two elements: 1) the capacity for ‘high quality deliberation’ to take place that is related to inputs and 2) the capacity for the deliberation to have effects outside itself, relating to outputs. For a political system to have a high-quality deliberation, four criteria need to be met. The first criterion is inclusiveness, which entails that the deliberation in the system must be open to all parties that which to participate. Second, the system should be authentic, which means that the deliberation stimulates actors to have authentic expressions.

Third, there must be a public space, which encompasses the existence of an open arena that makes it possible for civil society to get involved. Fourth, a discursive discipline should be present, which means that there are mechanisms in place that ensure all participants are able to engage with each other non-coercively. Besides deliberations being of high quality, they also need to have actual effects on improving human rights norms. For a system to have effect, three additional criteria need to be met. First, there must be an empowered space, which requires an arena to be present in which decisions are made that have practical effects. The second criterion is transmission, which means that there should be a mechanism to make it possible for the public space to influence the empowered space. Third, a feedback loop is required, which means that there is a mechanism that ensures the empowered space reports back to the original public space. Taken together, the central aim of deliberation is to improve the implementation of human rights norms. Put simply, the emphasis is on how states can learn more about each other’s positions, desires, ambitions and preferences ‘just’ by talking together.

In the study of Milewicz & Goodin (2016), the UPR as a political system was assessed alongside these seven criteria. The UPR has the possibility to produce high-quality deliberation as it meets the four criteria of this assessment. First, the UPR is open and inclusive, especially

regarding all Member States of the UN and all recognized human rights organizations. Second, there have been cases of the UPR in which Member States express genuine views, even though international politics is characterized by having a strategic element to it. Third, the UPR has a public space for NGOs to be representatives of civil society, as the HRC stated all contributions of domestic NGOs had to be in accordance with the Paris Principles – which is a mandate that provides criteria against which national human rights institutions will be held. Fourth, all states under review during the UPR process have the possibility to make commitments willingly and voluntarily. Additionally, the UPR is a system which can produce effects on human rights as it also meets the following three criteria. First, there is the case of an empowered space as Member States are held accountable for their actions in terms of human rights performance during the Interactive Dialogue at the Palais des Nations. Second, NGOs and other civil society actors have the chance to lobby, influence and converse with Member States. Third, the feedback loop takes form through NGOs engaging with their governments in a constructive dialogue to evaluate the results of the review process and see how recommendations could be implemented.

The deliberative theory has similarities with the dialogic approach of the UPR in terms of Member States learning more about the positions each of them has regarding certain human rights topics or issues. By doing so, the effectiveness in terms of accepting recommendations could increase.

2.2.3.2 Constructivism

The second theory that can explain the effectiveness of the UPR is the theory of constructivism. The UPR is a mechanism that supports improving human rights extensively because it has a socializing influence – it is a constructivist mechanism. From a constructivist perspective, states are viewed as social creatures that value prestige, status and self-image, in addition to material rewards and punishments. Constructivists explain the UPR through the fact that norms, such as respecting universal human rights, diffuse via peer pressure. Conforming to universal human rights results in praise, an increase in social worth and esteem whilst at the same time violation of human rights results in shame, disapproval and isolation. As states conform to human rights, they might come to internalize these norms as a part of their identities. Naturally, before norms can be internalized, they must be accepted. In other words, if states accept norms through accepting recommendations, they make the first step in conforming with human rights (Voeten & Terman). Greenhill (2010) carried out a study in

which the international socialization effects on human rights norms were examined. The socialization effect is an effect where actors change their behaviors because of changes in their interests which are in turn caused by the interaction with other states. They learn from or copy certain behaviors of these states. Thus, states come to respect human rights because of a certain

‘logic of appropriateness’ (Greenhill, 2010). The effectiveness of norm socialization was confirmed other authors as well, such as Finnemore & Sikkink (1998). Moreover, constructivists see the UPR as a powerful mechanism because it is exactly the social environment in which states learn about shared expectations of certain behavior and might face the (social) consequences for their ability, or inability, to live up to these expectations (Voeten

& Terman, 2018).

2.2.3.3 Cultural relativism

Another theory through which the effectiveness of the UPR can be explained, is cultural relativism. Universality is one of the principles of the UPR. This can be interpreted in multiple ways. One way is that it is universal in terms of that each Member State is obliged to participate in the process. However, a second interpretation aligns with the notion of universalism which states that human rights should be equal in all countries. This stems from the fact that human nature is universal and thus human rights ought to be universal as well. The implementation of international human rights should surpass any form of cultural boundaries according to universalism (Donnelly, 1998). However, universalism is strongly opposed by cultural relativism. This school of thought has an important notion at its core: it is believed that values and moral beliefs are culturally specific, meaning that cultures have different opinions on what values these cultures should uphold. In other words, cultural relativism states that human rights are not universal because moral value judgments are relative to different cultural contexts.

What one culture sees as a fundamental human right, another culture might perceive as not important at all (Patel, 2017). From the perspective of cultural relativism, ideas of what is right and what is wrong differ per culture and thus the definitions of human rights differ as well (Carroll, 2013). Universal human rights are being resisted because of several reasons. This resistance is grounded in a cultural relativist view. Individualism, the abstractness of human rights and the idea of rights itself are seen as specifically western and thus foreign to all cultures that are non-western in which individualism is not present (Brems, 1997).

The debate between universalism and cultural relativism is also visible through the work of the UN itself as universalist human rights norms have been embedded in the Universal

Declaration of Human Rights while simultaneously cultural relativist stances have been appearing more and more. One example is the Bangkok Declaration that was adopted by Asian states, which states that human rights must be considered in the context of international norm-setting and that national and regional cultures and backgrounds must be kept in mind (Cerna, 1994). Additionally, the institutional construction of elements of the UN make it possible for cultural relativism to remain. Members of the HRC are grouped in such a way that they reflect their regional grouping. There are five different regional groups and it is often observed that any form of politicization is in accordance with these regional groups. Furthermore, the HRC is constructed in such a way that it reflects real world dynamics, by each group having a specific number of seats. Thus, one can expect that this regional grouping has an impact on the positions of states purely based on the institutional framework. (Schlanbush, 2013). This regional distribution has resulted in African and Asian states getting a majority over Western states in the HRC (Terlingen, 2007). Looking at the numbers, together the Asian and African states compose 26 members of the 47 members in total (Rathgeber, 2013).

In sum, deliberative theory, constructivism and cultural relativism can explain the effectiveness of the UPR. Deliberative theory and constructivism are examples of how the UPR can be positively influenced while cultural relativism has a negative influence on the acceptance of recommendations.