THE UN HUMAN RIGHTS COUNCIL’S UNIVERSAL PERIODIC REVIEW AS A RHETORICAL BATTLEFIELD OF NATIONS

Abstract

Applying the case study of Saudi Arabia, this article examines the rhetoric of nations who are well documented as being severe violators of human rights and the use they make of the UN Human Rights Council Universal Periodic Review (UPR) mechanism to defend, downplay, and deny their human rights violations. Authoritarian countries who violate human rights systemically, severely, and intentionally as a matter of government policy apply different rhetorical strategies when undergoing the UPR process and writing and submitting their respective national reports for the UPR process. This article analyzes these strategies, illustrates how different countries use them during the UPR process, and explores the value and limitations of the UPR process and its efficacy at advancing human rights.

Applying the case study of Saudi Arabia, this article examines the rhetoric of nations who are well documented as being severe violators of human rights and the use they make of the UN Human Rights Council Universal Periodic Review (UPR) mechanism to defend, downplay, and deny their human rights violations. Authoritarian countries who violate human rights systemically, severely, and intentionally as a matter of government policy apply different rhetorical strategies when undergoing the UPR process and writing and submitting their respective national reports for the UPR process. While there are certain common strategies—such as outright denial of violations of human rights and appropriation of human rights rhetoric—there is variation in the approach taken and substantive content.

The UPR consists of a review of the human rights laws, policies, and practices of every member of the United Nations (193 countries) by its counterparts on the UN Human Rights Council. The review takes place every five years, roughly, and lasts three-to-four hours. ¹ According to the UN High Commissioner for Human Rights (UNHCR n.d.), “Since its first meeting was held in April of 2008, all 193 UN member States have been reviewed twice within the first and second UPR cycle.” The UPR is now in its third cycle, from 2017 to 2022. During the current third cycle, member states are expected to explain while under review how they have implemented and will implement the recommendations made to them by UN Human Rights Council members previously (UNHCR n.d*).

The UPR includes three fundamental components: the presentation of a national report by the country being reviewed, commentary from UN agencies, treaty bodies, and special rapporteurs which is assembled by the UNHCR and information and commentary from national and international human rights institutions including NGOs, members of civil society, universities, human rights advocates and defenders, and regional organizations. During the review session, member states provide recommendations for how the country under review can better respect, protect, and fulfill human rights and the country under review engages in dialogue and takes questions from member states. It provides its own self-assessment and reflection verbally and in the context of the written national report it submits to the Council.

Three countries take responsibility for administering the process and are known as rapporteurs who form a “troika”—each one hailing from one of the Council's regional groups. They receive and compile information regarding human rights in the countries being reviewed from the UNHCR from UN treaty bodies, from NGOs, from other countries, and from the respective country under review. The national reports presented by each country vary in substantive content, style, and length. Because of this diversity, and the fact that not all countries invest significant effort and resources in the writing and presentation of their national reports, they vary in depth and in the extent to which they reflect a country's rhetorical effort to establish its human rights bona fides.

Every country has the freedom to take a distinctive approach to what they choose to share in their national report, its emphases, the human rights laws and principles it refers to, and the political, economic, social, and diplomatic issues it discusses and highlights and the extent to which it engages with criticism, whether stemming from nations, NGOs, or other members of civil society. As such, although we can speak of a uniform “national report” genre with regard to each national report's general content, in discussing different national reports we find a great mix of approaches and of differences in substance, style, and length.

Human rights are often analyzed from a legal lens and conceptualized largely as a body of rights stemming from the law. However, human rights are also rhetorically constructed. The very political nature of international human rights law—both in its formulation and institutionalization and, particularly, the highly politicized nature of the UN Human Rights Council and the UPR—makes rhetoric a central component of the legal process of reviewing each member state of the UN for its human rights record.

Consequently, the UPR is not only a legal process; it is also a rhetorical performance. It merits analysis because much of what is particularly consequential about the UPR is not concrete changes in the actual enforcement of human rights law—which tend to be minimal—but the perception and awareness of human rights violations at the United Nations and beyond and the way in which countries violating human rights seek to shape, manipulate, and propagandize regarding their record on human rights.

The UPR process primarily has an informative role in providing a global platform to address human rights violations, although it purports to offer much more than that and theoretically aspires to advance human rights accountability. Countries that are intensive and frequent violators of human rights in their domestic affairs typically make use of the UPR primarily to advance their own agendas and desire for maintaining power and evasion of accountability for their abuses of power. This article focuses on investigating their usage of the UPR for narrow, national self-interest that is in direct contradiction to the values, (particularly the principle of equality), aims, and universality of international human rights law.

Authoritarian State UPR Submissions: A Case Study of the Saudi Submission and Common Patterns with Other National Submissions

In analyzing the rhetoric of Saudi Arabia's report to the UPR, we see that there is virtually no outright contestation of the validity of international human rights law. Though Saudi Arabia takes pains to define its selective approach to human rights laws in relation to its values and governance as an authoritarian theocracy, it does not appear to engage in any explicit normative disagreement with it. Instead, it applies a rhetorical strategy of “Yes, but” in which the Saudis depict themselves as intensely concerned with international human rights law even as they defend its repeated violation in severe ways across multiple domains that are systemic and structural to their political and legal systems.

Other countries take a similar approach. In the case of China, the “but” is the Communist party (but really capitalist) oligarchy. Its national report states, “The Chinese government is working to explore paths for human rights development, establishing a robust system of human rights safeguards, and continuously enriching the theory of human rights, all within the framework of socialism with Chinese characteristics” ² (China UPR National Report 2013a, 2013b). What is left unsaid explicitly—but is implied—is that authoritarian socialism with Chinese characteristics always takes precedence to IHRL for the Chinese regime. In the case of Saudi Arabia, it is sharia law and the dictatorial royal family and its theocratic authoritarianism that takes precedence to IHRL.

Why do China and Saudi Arabia not express their transparent, systemic, and extreme disrespect of international human rights law? This may be a result of the fact that no country stands much to gain from challenging the international human rights system; it is far more prudent to pretend to respect it and communicate conciliation rather than to confront it and thus inspire the animus of its defenders and the criticism of the UN Human Rights Council and other UN bodies. In diplomacy, silence, evasion, and implicit or explicit lying too are often strategic choices with clear benefits, such as lowering public pressure to change policies and practices.

Mostly, however, reports of egregious human rights violators are characterized primarily by the appropriation of human rights rhetoric to deny and cover up their human rights violations. A common feature is reference to the term “democracy” in states that are authoritarian in nature, as are references to judicial systems that, in reality, lack independence, impartiality, and legal and ethical integrity. The false use of the word democracy has been prevalent historically and still is used by some countries today. ³ The Chinese government also makes totally unsupportable claims belied by their repressive policies and practices, particularly as it relates to the Tibetan minority and (though without explicit reference) to the Uighur minority as well as its lack of respect for the civil and political rights of all Chinese citizens.

It [the Chinese government] coordinates and promotes the safeguarding of civil, political, social and cultural rights as well as the rights of special groups, develops a broader, fuller, and sounder people's democracy, and comprehensively promotes the coordinated development of rights of all kinds. It fosters a fairer and more harmonious society, and works to ensure that every citizen enjoys a life of ever-greater dignity, freedom and well-being. (China UPR National Report 2013a, 2013b, 3)

The propaganda continues with,

The Chinese Government has consistently attached great importance to developing the cause of human rights for ethnic minorities, and ensured that they enjoy extensive human rights… In Tibet, the manner and succession of the reincarnated Living Buddha is fully respected, and traditional religious activities proceed normally. Currently, there are more than 1,780 places of religious activity of all types in Tibet, with some 46,000 monks residing in monasteries. Tibetan cultural customs and practices continue to be handed down and protected. (China UPR National Report 2013a, 2013b, 16–17)

Put more directly, the rhetorical strategy used here is the oldest, simplest, and most basic one fundamental to propaganda, outright lying.

We see another instance of this claim to deep commitment to human rights that is belied by reality in the 2016 report submission of Syria, for example.

The Syrian Arab Republic, which took part in the founding of the United Nations, is guided by the purposes and principles of the Charter of the United Nations when determining its political stance and pursuing efforts to achieve economic, social and cultural development. It abides by the principles of international law, as international law provides a solid foundation for the observance of human rights. (Syria UPR National Report 2016)

When the Syrian government, in the midst of a civil war in which the Syrian regime has killed over 500,000 people including hundreds of thousands of civilians and uses chemical weapons against them, the use of the UPR as a propaganda forum ranges from crystallized mendacity to the more anodyne and farcical recommendations. The Syrian report, for example, invites readers concerned about human rights in Syria to register these concerns by visiting www.youropinion.gov.sy. Somehow this does not seem to be a very promising route to convince the Syrian regime to stop massacring its citizens and it illustrates the extent to which many authoritarian regimes treat the UPR more as a fictional theatrical production than a human rights mechanism.

Although many authoritarian and totalitarian states show contempt for the economic and social welfare of their citizens—with dictators and their family members and networks hoarding cash for themselves and neglecting the needs of citizens through a combination of corruption and nepotism—Saudi Arabia's UPR National Report (2013, 2018) and Saudi government policies do indicate a serious commitment to respect and realization of social and economic rights on a broad, national basis. Inevitably, this respect is partial in that anytime social and economic rights overlap with the civil and political rights the regime rejects, the regime errs on the side of violating social and economic rights. Women, minority groups including ethnic and religious minorities, migrant workers, women working as domestic workers, and other vulnerable and disadvantaged populations consequently suffer from a lack of respect for their rights, both civil and political and social and economic. However, the Saudi government overall does invest a great deal financially and institutionally in the provision of healthcare, education, housing, employment creation, and economic subsidies for the poor which reach the majority of Saudis and advance social and economic rights in the aggregate. ⁴

The Saudi Report is notable for acknowledging that international human rights law is not the primary determinant of their national law while not rejecting outright IHRL. While many countries egregiously violating human rights use a rhetorical strategy of “performing human rights law”—claiming it informs their laws and practices in ways that manifestly contradict their public policies and reality on the ground, the Saudis demonstrate honesty with regard to affirming that sharia is the first and final legal authority in Saudi Arabia. This honesty is limited, however, to this acknowledgment; the bulk of the Saudi report depicts Saudi Arabia as having legal safeguards that prevent discrimination and abuses of power in the courts and police system that have little correspondence with reality. There is no acknowledgment of its systemic discrimination against, and persecution of, religious minorities and atheists and agnostics, discrimination against women, discrimination against LGBT Saudis, lack of freedom of expression and assembly, and the lack of other core human rights protections. Furthermore, the Saudi acknowledgement of sharia as the ultimate law of the land which, by definition, always takes precedence to any other moral or legal authority—including international human rights law—demonstrates the lack of respect for IHRL in Saudi Arabia.

The Saudi report states,

The Kingdom considers, on an ongoing basis, all of the international human rights treaties to which it is not a party in the light of the provisions of sharia law, which affirm the principle of openness to the human rights experiences of others and commitment to the Islamic cultural identity and values… The initial findings of the studies conducted were that all of the principles for the protection and promotion of human rights are practiced on the ground in the Kingdom by virtue of the application of sharia law. (Saudi Arabia UPR National Report 2013, 5–6)

Such a sweeping claim has no support and the Saudi government provides no evidence for it. It reflects the unwillingness of the Saudi government to explicitly acknowledge that sharia law is overwhelmingly incompatible with international human rights law. The refusal to acknowledge human and societal normalcy and fallibility is common to many of the reports of the severe human rights violators. They depict their policies and practices as being perfect in ways that are implausible and at times farcical in nature. For example, to return to the Syrian report, it states, “Syrian law offers everyone in society protection from all forms of discrimination, even though there is no such discrimination” (Syria UPR National Report 2016, 11).

Like in the Chinese and Syrian National Reports, dissembling and denial are key rhetorical strategies used in the Saudi report; for example, Saudi Arabia insists—without any attention to facts and logic—that Saudi Arabia by definition cannot be a theocracy and makes general, unsubstantiated, and sweeping claims about the ways in which sharia incorporates human rights and is never in tension with it.

The kingdom is governed by sharia law, pursuant to which Muslim rulers are mandated to apply its established principles and rules to the promotion and protection of human rights, as prescribed in the Holy Koran, the Sunnah of the Prophet and Islamic jurisprudence, which is renewed with every generation in pace with the latest developments in human evolution over time and place. Justice, equality, and consultation are key among these principles… Sharia law also establishes that society as a whole carries responsibility, ruling out any approximation of the State to a religious theocracy as opposed to a civil state. (Saudi Arabia UPR National Report 2013, 3)

Saudi Arabia is governed as a monarchical theocracy—but, through the use of Orwellian language, the regime states the very opposite of this fact. At several junctures in the report the Saudi government implies and sometimes directly states that sharia law reflects international human rights law and that there is no conflict between the two. While there may be limited areas in which sharia and international human rights law overlap, given the human rights record of Saudi Arabia, if one is to take their word that they practice sharia without compromise, there is a major chasm between sharia and international human rights law and the two are much, if not most of the time, intrinsically incommensurable.

Indeed, Saudi Arabia has not signed either of the core human rights covenants that form the International Bill of Rights, and largely for this reason, because it undermines the ruling theocracy. “As to the matter of the Kingdom's accession to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights, it remains under constant consideration” (Saudi Arabia UPR National Report 2013, 3). It is not clear how one should interpret “constant consideration” other than as a form of rhetorical evasion; rather than directly explaining that it has chosen for decades not to sign either convention because it obviously finds a tension between international human rights law and Saudi and sharia law, it avoids directly addressing the issue by choosing a rhetoric of continuous, perpetual possibility that simply reinforces the status quo that Saudi Arabia does not wish to respect the international human rights laws codified in the two covenants, without explicitly saying so.

This theme of the integration and commensurability of sharia and international human rights law repeats itself in different forms and iterations throughout the report; each time asserting in a new way how the two go hand-in-hand.

Within a defined framework, Muslims follow the rulings most appropriate to them at all times and in any place, without prejudice to the principles (rules of conduct) that protect and promote human rights. In that these principles prohibit and criminalize the violation of human rights, interpretative judgements falling within their framework are simply a systematic endeavor to protect and promote these rights, as indicated in article 26 of the Basic Law of Governance, which provides that, “The State shall protect human rights in accordance with sharia law. (Saudi Arabia UPR National Report 2013, 3)

A reasonable conclusion from this explicit insistence that sharia forms the ultimate legal authority in Saudi Arabia is that it does and must, by the legal norms of Saudi Arabia, serve as the ultimate authority—irrespective of its confluence or dissonance with IHRL.

A common feature of many of the reports from egregious human rights violators is the phenomenon of “pretending civil society—governments claim they have a free, diverse, open, and thriving civil society and that they arrange periodic meetings with organizations within that civil society to discuss human rights issues. The Syrian report states, for example,

The President of the Republic received delegations representing ordinary people from virtually every governorate of the country, with whom he had an exchange of views and a discussion of their demands. Based on these exchanges, the President issued instructions that all the achievable demands that were made must be met. The Syrian Arab Republic engaged in a comprehensive national dialogue exercise that led to the formation of a high-level committee representing political parties and well-known individuals of independent standing to promote wider participation in decision-making and strengthen national dialogue. (Syria UPR National Report 2016, 117)

The Saudi report does the same, stating, “The Human Rights Commission held 24 meetings in 9 urban centres with civil society representatives and persons interested in human rights, thus reinforcing the principle of national consultation and participation” (Saudi Arabia UPR National Report 2018, 117). However, there is no such thing as a genuinely independent Saudi Arabian civil society because Saudi Arabia is an authoritarian theocracy that lacks basic freedoms, and thus these meetings cannot be legitimately categorized as consultations with Saudi civil society.

The Saudi report asserts that the Saudi government is working closely with UN agencies addressing issues such as human rights education and the rights of detainees, as well as having signed a cooperation agreement with the UN's OHCHR. It acknowledges

such important objectives as building the Kingdom's capacities in the field of international human rights law, with particular reference to United Nations mechanisms and the work of the competent international organizations, the preparation and development of toolkits to provide guidance for human rights personnel, and the organization of human rights seminars and workshops. (Saudi Arabia UPR National Report 2013, 20–21)

Because the United Nations is always eager to advance “constructive engagement”—which is also explicitly reflected in the official aims and values of the Council—there are frequent opportunities for even the most egregious human rights violators to use the UN system to pretend human rights while actually making no real efforts to protect them. Ironically, the UN encourages this behavior and itself becomes a party to this. In this regard, the Saudi report is typical of that of many other countries who similarly violate human rights but who consistently champion their amicable relations with various UN agencies and use that as a defense of their human rights records by implying such cooperation (however limited and usually inconsequential) indicates respect for human rights when in fact it is often just a political charade. ⁵

The Saudi national report demonstrates a lack of understanding of basic principles of international human rights law, such that it depicts restrictions on freedom of religion as though they are in line with IHRL when this is not the case. It also ignores systematic discrimination against various religious minorities including Jews and non-Abrahamic faiths such as Hinduism and Buddhism, atheists, and agnostics, and Muslims whose beliefs and practice of Islam differ from those of the Wahabi Sunni sect which governs Saudi Arabia. The Saudi UPR national report states,

Sharia law guarantees the freedom to choose a religion: “There shall be no compulsion in religion. True guidance is now distinct from error.” It also requires fair treatment of all human beings… Article 8 of the Basic Law of Governance thus provides that: “Governance in the Kingdom of Saudi Arabia is based on justice, consultation, and equality, in accordance with sharia law. (Saudi UPR National Report 2013, 6)

What this statement conveniently leaves out is that this freedom of religion does not apply to Saudi citizens, who are all Muslims. Under sharia law in Saudi Arabia, it is a crime to convert out of Islam and is punishable by death. The report affirms, “The freedom of non-Muslims in the Kingdom to worship in private places is assured by law and in practice. Directives and regulations have been issued to permit non-Muslim residents of the Kingdom to engage in worship in their homes and within the premises of diplomatic missions” (Saudi UPR National Report 2013, 6). In reality, this freedom is highly limited, often impinged upon, and does not acknowledge that limitations on public worship of individuals of non-Muslim faiths violate international human rights laws pertaining to freedom of religion, of expression, and of assembly. Harassment, threats, and intimidation of non-Muslims are recurring problems in Saudi Arabia. ⁶

Logic and rational coherence break down as the Saudi report seeks to justify claims that are mutually contradictory and/or have no basis in reality. As such, the report claims that there is not a single Saudi citizen in a country of over 30 million people who is agnostic, an atheist, questions Muslim faith, and/or simply lacks faith or is unsure about the nature of his/her Muslim faith (Saudi UPR National Report 2013). ⁷

All citizens of the Kingdom are Muslims and there is no Muslim in the country who rejects the Revelation (the Koran and Sunnah) as the authority for life. Anyone who states that there is a religious minority in the Kingdom contradicts the living reality, as does anyone who claims that they are discriminated against. Islam sets out the law governing all aspects of Muslims' lives. It thus defines shared national values, or what are known as the rules of public order and public morality. The Kingdom's legislation and laws contain not even a hint of provisions that discriminate against anyone; on the contrary, discrimination is a punishable offence. Article 12 of the Basic Law of Governance states that: The consolidation of national unity is a duty. The State shall prohibit any activity that leads to disunity, discord, and division. (Saudi UPR National Report 2013, 7)

The report states the impossible: it claims moral and governmental perfection by insisting that there is no possibility of discrimination in Saudi Arabia, something we have observed the Syrian report does as well. Statements such as these seriously undermine the credibility of national reports and seem to inadvertently mock the authors themselves in their sheer nonsensical nature and transparent dishonesty which also mock and ultimately undermine the UPR process as a whole and illustrate contempt for human rights principles and processes.

Under sharia law, any scorn or abuse of religious beliefs is prohibited and anyone proven to have engaged in practices of that ilk is held to account. All prophets and messengers – prayers and peace be upon them – must also be revered and held in high esteem. On 7 December 2011, the Ministry of Islamic Affairs issued a charter for imams and preachers, according to which they must neither offend nor discredit individuals or religious groups. (Saudi UPR National Report 2013, 7)

All this is portrayed as being in the service of protecting the rights of religious Muslims; in fact, it is a coercive and oppressive form of state religious totalitarianism that ensures a philosophy of governance and legal practice based on Wahabi Islamist supremacist religious ideology that is discriminatory and exclusive in nature.

The Saudi report emphasizes that the Kingdom protects freedom of expression; yet no such freedom exists in Saudi Arabia. “The Kingdom's laws guarantee freedom of expression and of opinion to every human being and protection for other rights, human rights being interdependent and interrelated, in such a way as to have no adverse impact on giving effect to this right” (Saudi UPR National Report 2013, 7). Human rights organizations depict a radically different reality. Similarly, on gender, the Saudi report claims that there is equity between the sexes though not outright equality. In reality, there is neither equity nor equality and the concept “complementary equality” refers to does not meet IHRL standards nor does it accurately reflect the gross disparities in the power and respect afforded to men and women in Saudi Arabia with men having far greater power and respect and dominating women legally, economically, politically, socially, and domestically.

Since Saudi Arabia's last UPR cycle national report submission, there have been some incremental changes in advancing selected human rights, particularly in the areas of improved freedoms for women, such as the ability to drive a car and interact with men in public places without harassment by the authorities and reformation of the Guardianship system (Chulov 2018). However, these changes have not altered the fundamental place of sharia law in determining the laws, policies, and practices of the Saudi government, and its absolute precedence over Saudi Arabia's international human rights obligations and commitments. They are also an extraordinarily low bar and as such classifying them as an achievement is problematic. Saudi Arabia remains no less authoritarian today than it was five or six years ago; however, it is slightly less totalitarian in its religious theocratic orientation. This is a dynamic situation and the changes being made by the Saudi government are nascent and being met with resistance by various powerful religious and cultural authorities within the country.

Human rights organizations report wide-scale human rights violations in Saudi Arabia which accompany the fundamental human rights violations entailed by it being an authoritarian and totalitarian theocracy. These include torture, arbitrary arrest and detention, corporal punishment such as amputations of limbs, discrimination and persecution against women, migrant workers, atheists, religious minorities and threats and intimidation against them for worshipping in private (public non-Muslim worship is prohibited in Saudi Arabia) and against LGBT Saudis, residents, and visitors. Trade unions, political parties, and public demonstrations are prohibited. The country reports on Saudi Arabia of Human Rights Watch, Amnesty International, and the State Department report on human rights in Saudi Arabia document these violations extensively and in great depth. ⁸ Due to space constraints, we will not discuss them here, but the evidence of widespread systemic Saudi human rights violations is overwhelming.

The Limitations of the UPR

One major problem with many national reports is that they are not data driven and tend to be highly selective, impressionistic, and lacking in shared standards of assessment which would enable comparative analysis. Many feature listings of laws and national human rights organizations—and often the reports of authoritarian states are packed with these—but relatively little statistics and aggregate data and no sense of representative sampling and a framework for interpreting and making sense of the significance of this data. So, for example, they do not tell us about the extent to which Female Genital Mutilation (FGM) is prevalent and how much it is being prosecuted; they just say there is a law against it. ⁹ But we know that FGM is practiced in many countries where it is technically illegal, but where the law is rarely enforced by the police and prosecutors. This makes it very hard to meaningfully address issues like child marriage, child labor, sex trafficking and human trafficking, women's and girl's rights.

National reports are not particularly detailed or in-depth. Whereas reports to treaty bodies refer entirely to one issue such as children's rights or women's rights, UPR reports breeze through these issues with a few paragraphs dedicated to each issue. They are, by their very nature, cursory and in many respects quite superficial, even despite the best intentions. A subject—such as women's rights—might receive less attention in a national report than a newspaper or magazine article would give it. Many subjects will receive a paragraph or a sentence of attention, and some none at all.

Authoritarian states will often use a strategy of providing small and outlier examples to try to depict themselves as respecting and fulfilling human rights, even if these examples are not representative of their policies and are therefore of limited value as examples because they are exceptional. Congo, for example, notes in its national report that it has provided clean drinking water to 25,000 people. In a country with over 85 million citizens, that is less than 1 percent of the population, .0003 percent, hardly impacting the Congolese people outside of one small community of benefit. Other strategies include describing improvements in school registration and immunization without actually addressing numbers of individuals impacted, extent of impact, and its sustainability. Authoritarian states in the midst of civil war and/or extensive internal conflict and civil insecurity will often simply ignore their own human rights violations and attribute violations exclusively to other parties in the conflict; this is evident in Congo's national report and in Yemen's (Yemen UPR National Report (2014) 2019), as well as in Venezuela's (Venezuela UPR National Report (2011) 2016).

Many authoritarian countries have organizations with names along the lines of “National Human Rights Committee” or “National Human Rights Commission” which they will trumpet in UPR national reports as evidence of their commitment to human rights. These organizations may not actually be promoting human rights and they may be, and often are, simply a ruse and another branch of an authoritarian executive branch that systematically violates human rights, but they are essential to pretending and performing human rights.

Congo, for example, notes that it created a National Human Rights Commission and two separate commissions to investigate violence and human rights violations in the context of elections. ¹⁰ But these organizations have had no real substantive power and little impact on the practices of the government. They may occasionally be staffed by individuals sincerely committed to human rights and they may be able to run a small number of programs that seek to advance human rights. But their work is symbolic and not a reflection of power and human rights enforcement. They do not control and constrain governments. Ethiopia, for example, has a Human Rights Commission, but it has no power to restrain the human rights abuses of the Ethiopian government or of Ethiopian militias and the ethnic movements affiliated with them that have a record of human rights violations. ¹¹

Such organizations are rhetorically useful in the context of the UPR where there is little opportunity to substantively question and interrogate the actual resources, remit, structure, policies, practices, and efficacies of such organizations and their commitment to the respect, protection, and fulfillment of human rights. As long as a country can refer to such an organization, it can claim itself to support and disseminate human rights in the context of the UPR.

Authoritarian countries also tend to highlight in their UPR national reports pseudo-democratic institutions such as courts and a parliament that, in reality, do not have their own authority, do not enjoy a separation of powers, and are not empowered to nor do they show an interest in human rights respect, protection, and fulfillment. Typically, they are controlled by an authoritarian executive or may simply lack power, and exist purely or primarily in an advisory capacity for a king, dictator, or oligarchic elite. Elections often have their outcomes predetermined and are rigged, with candidates strictly limited by their approval from authoritarian rulers and anyone challenging their authority and demanding human rights unlikely to be considered a legitimate candidate and unlikely to be allowed to run for office. Iran runs elections in this way, for example, but still deceptively touts its elections as though they are free and fair in its national report. ¹²

The UPR is based on the principle of “constructive engagement”; dialogue between states is fundamental to it. Constructive engagement works particularly effectively with governments that have a genuine desire to adjust their policies toward greater protection of human rights. They may be receptive to “nudging” by the UPR process because they already show some degree of respect for human rights. These include most liberal democracies such as member states of the European Union, the United States, Canada, and Australia, New Zealand, South Korea, and Japan. It also includes some non-democratic and partially democratic countries, but whose governments make a clear and sustained effort to ensure the well-being of their citizens, even if they do not guarantee them the full range of human rights to which they are entitled and where their commitment to human rights can best be described as limited, nascent, and fragile. They generally focus on social and economic rights, rather than civil and political rights, and conceptualize social and economic rights less as “rights” and more as government aims to achieve social and economic welfare and advanced social satisfaction that ensures their unhindered power and rule. Some examples include Oman, Jordan, and Malaysia.

At the UN Human Rights Council, as the authors Felice Gaer (2007), Rosa Freedman (2013), Gareth Sweeney and Yurie Saito (2009, ii), and Allehone Abebe (2009) note, authoritarian states group themselves into regional and other blocs on the basis of shared political values and regimes, and sometimes religion (the Organization of the Islamic Conference, for example) in order to minimize their being subject to human rights inquiry and criticism at the Council. ¹³ In this respect, the UPR is uniquely valuable because no country can avoid it, nor can the UPR suffer from the type of structural politicization of human rights that is fundamental, however, to the general functioning of the Council. The substantive content of UPR reviews is no less political than the Council's activities in general because nations and NGOs can offer commentaries and make recommendations that are heavily political and prejudiced. There is nothing to restrain them from doing so, but because the UPR's structure and functioning is clearly delineated and applied universally, it is less easily manipulated and exploited as a tool procedurally to use against human rights accountability. That is significant and it merits acknowledgment because it reflects core principles of equality and universality that the UN Human Rights Council as a whole fails to respect.

The UN Office of the High Commissioner for Human Rights states that the UPR is a “state driven process… which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfill their human rights obligations.” ¹⁴ (OHCHR) This mandate is—by definition—prone to a structural bias in favor of states providing them with extensive opportunity to defend their own human rights records—however weak or non-existing—rather than enforcing any real form of accountability aside from providing a forum in which human rights violations can be addressed and human rights violators can be verbally confronted. Furthermore, as Allehone Abebe (2009, 9) writes, “The UPR is primarily an intergovernmental oversight mechanism, and thus is a profoundly political undertaking.” It is not an independent judicial body.

Ibrahim Salama explains how the whole UPR process is essentially rigged in favor of the nation-state coming up for review, which can exercise a great deal of influence on the extent to which it will be criticized and how. “The UPR mechanism has both weak and strong points. The fact that the country undergoing review can determine the issues under discussion, the conduct of operation, and even the outcomes of the whole exercise may be a potential weakness of the system. Under the UPR process, member states are at the same time both parties and judges” (Sen 2011).

Bertrand Ramcharan (2013, 39) offers extensive critique of the UPR process as well, echoing some of these concerns and expanding upon them.

Many member states with atrocious human rights records are treated by their peers with kid gloves. Although it could be argued that a process of dialogue and cooperation in the council is useful, a strong procedure for dealing with countries guilty of gross violations of human rights is necessary. Without such a robust mechanism, the UPR process runs the risk of being a sham.

Jarvis Matiya (2010) further notes that,

There is also the problem of friendly countries “praising each other” on good human rights records instead of focusing on problems and challenges that the State under review is facing. For instance, on one occasion, countries friendly to one State were able to speak at the review to congratulate that State on its report without giving substantial recommendations. A resemblance of “block voting” is emerging in the review in terms of offering positive comments.

Although, as noted earlier, there is a mechanism for both NGO/civil society input from within and outside of the country being reviewed as part of UPR—as well as input from UN agencies and the UNHCR—the review process is centered upon the governments of nation-states. This is without distinction as to whether they are democracies or dictatorships, tyrannical and exclusive or emancipatory and inclusive of all citizens. Treating countries with such vastly different forms of governance in the same manner; when democracy is a prerequisite for respect for a huge number of human rights—especially (though not exclusively) civil and political ones—undermines the integrity of the universal review process, as Felice Gaer (2007, 128) argues. It amounts to willfully ignoring the elephant in the room: non-democratic countries are by definition and intrinsically serious human rights violators and they are in no position to judge the human rights records of other nations with any degree of integrity and credibility. Yet that is exactly what they do in the UPR process.

A flaw of the UPR is that it is not based on objective universal standards—despite making many references to international law and its universal definitions and classifications. Individual countries self-assess themselves in ways that contradict real equality of accountability toward universal human rights laws. Although ostensibly the moral and legal yardstick is international human rights law, each country interprets this differently (Gaer 2007, 128). Non-democratic countries with serious records of human rights violations generally interpret them tendentiously and with little regard to their plain meaning which does not allow for the kind of exceptions for cultural, political, and religious uniqueness that serial and egregious human rights violators often use to evade principles of human rights universality. As Gaer states, “To rid the UN human rights bodies of their credibility gap, gross violators cannot be permitted to define, assess and conclude that human rights protections in their countries is adequate” (Gaer 2007, 128). But this is the very way the UPR functions and changing that would require a dramatic revision of the entire mechanism.

In authoritarian countries where human rights are grossly and routinely violated as a matter of course and intentionality, with impunity and in extreme and sustained ways which are not subject to the constraining impacts of free and fair elections and an independent judiciary, the UPR is unlikely to make much of an impact precisely because such countries have no interest in cooperating with international human rights law. ¹⁵ They are far more likely to simply take advantage of the UPR's non-confrontational approach to downplay and deny their own human rights abuses and use it as a platform to defend their regimes and to propagandize. For them, the UPR is more likely to serve as a rhetorical platform for posturing than a meaningful framework for engagement and legal accountability. Saudi Arabia falls into this category, as does China, for example–although China likely has a greater concern for its international standing and reputation and as a permanent member of the Security Council may be more concerned with projecting an image of respect for human rights such that it is not compared negatively with the United States, France, and Great Britain and other Western countries.

The Government of Sudan, for example, states in its UPR Report (submitted while Sudan was governed by an authoritarian genocidal president wanted by the International Criminal Court, Omar Bashir) that,

Sudan is determined to continue its progress, to add to its record in the field of promoting and protecting human rights, and to draw positively from global best practices in that regard. The report makes it clear that there is an effective political will to give human rights issues their due importance and this is reflected in specific programmes and directives. The Government attaches great weight to the universal periodic review process and is eager to address all recommendations which may help to improve conditions for people in the Sudan. (Sudan UPR National Report 2016)

This is a patently absurd claim given the war crimes and crimes against humanity in which it is implicated and the mass killing of hundreds of thousands of Sudanese civilians, ¹⁶ which is likely to meet the international legal definition of the crime of genocide. But the fact that Sudan claims to respect human rights illustrates the rhetorical currency of human rights within the UPR and UN Human Rights Council, and international diplomacy more broadly. Much of an earlier Sudanese report from 2011 treats the creation of “workshops” as sufficient to address gross and systemic human rights violations and is largely little more than apologia for the Sudanese government ¹⁷ (Sudan UPR National Report 2011). In this respect its national report echoes the characteristics of the Syrian report discussed earlier.

At the heart of the UPR process are the “recommendations” which states make to states under review after having read their national reports and heard from NGOs and other organizations providing supplementary commentary and information. These “recommendations” are not binding requirements; rather, they are suggestions which the state under review can choose to accept or reject.

Some scholars highlight the fact that a very large percentage of recommendations are formally accepted by the state under review as evidence of the UPR's value and efficacy (see Ramcharan 2013). However, this is less significant in substance than in procedure. Many recommendations are formally accepted but they are not implemented; states benefit from “performing” human rights rhetorically and procedurally without actually implementing their content. This creates an image of effectiveness for the UPR process by conflating formal acceptance of a recommendation—a public primarily rhetorical act—with actual adoption into a nation's law and policy and enforcement and with the necessary resources, human, financial, institutional, and political to fulfill them. It should not be misconstrued as necessarily impacting policy and practice with tangible positive human rights implications, with limited exceptions.

The Value of the UPR

As an infrequent and brief human rights exercise of the UN Human Rights Council which, as noted, takes approximately three to four hours and takes place once every five years (Gaer 2007, 125) ¹⁸ for each UN member state, the UPR is a far from rigorous and comprehensive human rights assessment; its utility does not lie in its capacity for human rights assessment. Rather, its primary value lies in the space it creates for acknowledging and discussing human rights violations in every country member state of the UN, in transparency, and in creating one exceptional space within the UN system that respects and reflects principles of universality and equality.

Despite its major flaws discussed above, because states that violate human rights typically make great efforts to deny these violations and/or to prevent access to information about them, the UPR does play an important role in increasing access to information about human rights violations. It provides individuals, communities, and organizations who have suffered from human rights abuses and/or are advocating for human rights to formally, publicly, and within the context of the UN system confront states that violate human rights. This is valuable and significant, notwithstanding the limitations on concrete action being taken in response to this information.

By allowing NGOs to contribute reports expressing their human rights concerns, the UPR acknowledges and incorporates the role of civil society both nationally and internationally in advancing human rights. Significantly, and demonstrating value in the UPR process, this “civil society” is very different from the one which country reports of human rights violators typically refer to, in which cherry-picked organizations that are intimately linked with the government and lack meaningful independence and impartiality are referred to as “civil society”—when they, in fact, are more accurately arms of the government. As noted, UNHCR and other UN agencies can and often do submit their own reports, which often counterbalance the denials of human rights violations and propaganda that are found in the reports of nations that seriously and egregiously violate human rights.

Furthermore, because the UPR addresses state policies and behaviors in reference to the UN Charter and the Universal Declaration of Human Rights in addition to human rights treaties to which member states are signatories, the UPR provides a mechanism for addressing UN member state compliance with both, for which existing UN treaty bodies do not allow (Abebe 2009, 5–6). Thus, countries who are not signatories to particular treaties—especially core human rights treaties—who have evaded public accounting for human rights violations are now more likely to have these violations addressed as a result of the UPR (Gaer 2007, 126). This is a significant strength of the UPR, again one related to information and transparency.

As noted, a key strength of the UPR is its universality and the principle of equality that inspires it—as no country can evade review precisely because every member of the UN goes before the UPR (Gaer 2007, 136). Indeed, alongside the open forum it creates to address human rights violations, this universality is unique within the UN system. However, this is more of a mixed blessing than is readily apparent.

The UPR mechanism, by definition, cannot invest a great deal of energy and attention to any one country, such that a country where extreme human rights violations are taking place is unlikely to receive substantially more attention than one with a high level of human rights protection. This is a major structural failure as countries with outstanding human rights records such as the Scandinavian countries receive the same amount of attention as countries such as Syria and Saudi Arabia, who are in need of urgent and intensive attention as a result of gross human rights violations.

The UPR mechanism, then, on the one hand affirms principles of universality and equality—to its credit. But in so doing, it does not have a mechanism to recognize the greater urgency of addressing the most egregious human rights violations in authoritarian states such as war crimes, crimes against humanity and genocide than the kind of far less severe human rights violations taking place in a country like Norway, where human rights are protected by the rule of law embedded within liberal democracy and very strong legally codified human rights protections that are strictly enforced by an independent judiciary and a competent and trustworthy police force. An emergency room in which there is no form of triage will end up enabling medical harm and in many cases death to its most sick and vulnerable patients. So too in the human rights sector; with no triage, the most severe, violent, and dangerous and potentially fatal human rights violations will take place if there is no prioritization of human rights emergencies and disasters.

As Felice Gaer (2007, 137) cautions, “Experience with UN human rights mechanisms reveals that the attempts at universality—equal treatment, equal time spent and equal resources—can often mask or mute attention to the worst cases of abuse, or produce moral equivalency of severe violators with those largely in compliance.” As such, the universality of the UPR process—which is frequently cited in academic literature and that of civil society, the UN, and UN member states themselves as the UPR's strength in theory—in practice yields the opposite of the desired and expected outcome because it does not shine sufficient light and place enough focus on the countries violating human rights most intensely and extensively.

From a constructivist perspective, the UPR has potentially significant value. As Rosa Freedman (2013) writes about the Council as a whole.

Social constructivism provides the most useful method for understanding the Council both in theory and in practice. Social constructivists stress that human rights are a fundamental interest for all states, but admit that this position is not accepted by every country. Theorists therefore focus on how to change states’ behaviour in order to ensure compliance with human rights norms. Affecting changes forms a significant part of the Council's mandate, work and proceedings, through promotion of human rights, technical assistance, advisory services, and support. Moreover, social constructivists recognise the importance of actors other than states, which is reflected in the Council's interactions with NGOs, social groups, human rights experts, and UN administrative staff.

However, it is not clear that the UPR achieves its constructivist potential. This is in part because, as noted earlier, countries undergo UPR relatively infrequently, for a very short period of time, and because there is a disconnect between the Human Rights Council as an institution and its ability to substantively impact the governance, values, and public expectations of and perceptions of human rights in sovereign states (Frazier 2011). ¹⁹

There are some positive, more diffuse effects of aspects of the UN Human Rights Council, potentially including the UPR mechanism. Studies show that some cases of shaming of particularly extreme and egregious human rights violators at the Council can impact foreign direct investment in human rights violating countries. A data analysis of 165 countries from 1977 until 2013 during the years of both the UN Commission on Human rights from 1977 to 2006 and the Human Rights Council which replaced it from 2006 to 2013 show that human rights condemnations at the Commission and Council do impact and lower foreign direct investment. When the media reports on the human rights abuses to which these condemnations refer, that amplifies the decline in foreign direct investment by increasing the potency of the shaming and public knowledge of the human rights violations. These diffuse effects may actually be among the more significant ones of the Human Rights Council and the UPR may play a contributing role in that. The UPR tends toward a cooperative and conciliatory approach—rather than a strongly condemnatory one even for the worst human rights violations. Inasmuch as the UPR contributes to knowledge of human rights violations, it may play a role in contributing to a reduction in investment in their economies (Vadlamannati, Janz and Berntsen 2018).

Conclusion

Does the UPR system enhance human rights protections? In light of its limitations as they are examined here, it would seem hard to make a convincing and compelling argument that the UPR leads countries to change their policies and make them more in line with IHRL. There's simply little incentive for them to do so and almost no coercive power and practical consequences from the process and no mechanism for enforcement of the human rights laws the UPR is meant to defend. Thomas Weiss (2016) notes the unlikelihood of the UPR—in its current form—actually enhancing the protection and fulfillment of human rights law. “Although the first UPR of all UN member states was completed in 2011, robust follow-up mechanisms have yet to be established. Overall, the HRC seemed more intent on not offending a country under review than on addressing human rights abuses” (Vadlamannati, Janz, and Berntsen 2018).

Amnesty International notes that even when countries accept “recommendations” made during the UPR, in reality they often fail to put these recommendations into practice, and simply use the UPR as a forum in which to rhetorically perform acceptance of recommendations without any genuine intent and effort to realize them and make them law, policy, and practice. Amnesty International comments on the case of Saudi Arabia as one example of such behavior.

The UN Human Rights Council completed its Universal Periodic Review of Saudi Arabia in March. The government accepted the majority of the recommendations but rejected substantive calls, such as one urging Saudi Arabia to ratify the ICCPR. The government committed to dismantling or abolishing the male guardianship system and to allowing women greater freedom to travel, study, work and marry, but it had taken no discernible steps to implement these commitments by the end of the year. (Amnesty International Saudi Arabia Human Rights Report 2021) ²⁰

This is similar to how many human rights violators respond to UPR recommendations; they accept a number of them, reject some, and make vague and general comments and commitments that are rarely reflected in concrete outcomes. Since these Amnesty International comments were made, Saudi Arabia has improved the status of women and increased their freedoms, but still in the context of an authoritarian theocratic monarchy that systemically violates human rights with impunity (Chulov 2019).

The UPR process typically reproduces the pathologies of power that enable human rights violations in the first place. While some scholars have been somewhat sanguine and hopeful about its potential and have chosen to focus on the positive aspects of the UPR already acknowledged, others are scathing in their critique of the Council and see it as designed for dysfunction and non-accountability; a factory for legal fig leafs to cover up human rights violations and a public theater for human rights violating propogandists and dissemblers. According to the UN Office of the High Commissioner for Human Rights “The ultimate goal of UPR is the improvement of the human rights situation in every country with significant consequences for people around the globe” (UNHCR n.d.). By that high standard, it has not achieved its goals.