Promoting Compliance with Human Rights: Performance of the UN Universal Periodic Review and Treaty Bodies

While a multitude of instruments exists to monitor state adherence to international human rights obligations, the extent of their effectiveness in improving state compliance remains unclear. 

VALENTINA CARRARO proposes and applies a model to assess the extent to which two United Nations human rights mechanisms – the Universal Periodic Review (UPR) and the state reporting procedure of the treaty bodies – are perceived as capable of stimulating compliance with human rights, and why.

In an article titled ‘Promoting Compliance with Human Rights: The Performance of the United Nations’ Universal Periodic Review and Treaty Bodies’ and published in the journal International Studies Quarterly, CARRARO does so by identifying a set of goals potentially achieved by these organizations – generating pressure, stimulating learning, providing an accurate overview of states’ performance, and delivering practically feasible recommendations – and testing the extent to which reaching these goals is seen to facilitate compliance with human rights.

She concludes that the treaty bodies’ perceived strength lies in providing states with learning opportunities and an accurate overview of their internal situations. In contrast, the UPR is deemed particularly strong in generating peer and public pressure on states.

CARRARO shows that, under certain conditions, the three main theoretical schools on compliance – enforcement, management, and constructivist – offer credible explanations for states’ performance in implementing human rights recommendations, with the enforcement school faring relatively better than the other two. Data were collected by means of forty semi-structured interviews and an online survey, targeting individuals directly involved in the two procedures.

The two mechanisms show differing scores when it comes to their ability to achieve these goals, the author notes. The UPR’s perceived strength lies in generating peer and public pressure. “The main explanation for the UPR’s ability in generating public pressure is to be found in the active role that NGOs play in the process, holding states accountable for the commitments they made in the review.”

Additionally, the bilateral nature of UPR recommendations creates a much higher pressure on states to live up to their commitments than in the case of recommendations by nongovernmental experts.

Conversely, treaty bodies fare better in providing accurate overviews of states’ internal situations and learning opportunities. This is largely due to the expert nature of their recommendations, which are seen as more objective and of a higher quality than in the UPR.

Finally, both reviews are successful in delivering feasible recommendations, although with a notable difference: while UPR recommendations are appreciated for being realistic (albeit often vague), Concluding Observations are praised for being very detailed, yet criticized for aiming at unattainable standards.

“From a policy perspective, these findings suggest that the UPR and treaty bodies could reinforce each other’s strengths by working more closely together,” CARRARO states. Reviewing states in the UPR could more systematically consult recommendations delivered by the treaty bodies before formulating their own recommendations.

Even though this already occurs in several instances, it would be beneficial to make it a structural part of the process. If UPR recommendations were more strongly based on Concluding Observations, they would preserve their political force while, at the same time, providing better guidelines for states, according to the author.

“Future research could highlight the extent to which the output of the UPR and treaty bodies is currently aligned, and the degree to which recommendations by one body inform those by the other.”

Valentina Carraro, Promoting Compliance with Human Rights: The Performance of the United Nations’ Universal Periodic Review and Treaty Bodies, International Studies Quarterly, sqz078, https://doi.org/10.1093/isq/sqz078

Digital Public Goods: A Precondition for Realizing the Sustainable Development Goals

With a decade until the 2030 deadline to achieve the United Nations’ Sustainable Development Goals, experts continue to view progress as largely inadequate. Many experts highlight collaboration as being crucial for driving progress on the 17 goals and 169 targets, which were formally launched in 2015.
Progress towards every single one of the goals and targets also hinges on the effective deployment of digital technologies, write ANITA GURUMURTHY and NANDINI CHAMI in a new report published by Bonn-based Development and Peace Foundation (sef:).
As the UN Secretary General’s High-Level Panel on Digital Cooperation (HLPDC) has flagged in its 2019 report, the authors state, this cannot be restricted to the idea of promoting access to connectivity technologies. “In the age of digital interdependence, a transformative vision in relation to Agenda 2030 requires building digital ecosystems, including elements such as public data pools and public platforms,” they write in the report, titled ‘Digital Public Goods: A Precondition for Realizing the SDGs’.
Only by overcoming crucial weaknesses in the current data economy will such ecosystems be able to catalyze and sustain progressive socio-economic change. A binding international treaty on data – enabling states to develop national policy frameworks for the governance of their data resources – is necessary for the realization of the SDGs.
Successful public provisioning of digital and data infrastructure is predicated on overcoming the data economy challenges. Infrastructural investment in digital public goods and national data and AI strategies or digital economy road maps need to be guided by an effective policy framework.
The following actions need to be undertaken on priority by governments:
- Building public data pools
- Adopting a mixed data economy ownership regime
- Putting in place a strategic framework to govern cross-border transfers of data
- Introducing public interest exemptions in AI patent licensing
- Recovering the public utility character of essential platform infrastructure
Undoubtedly, nation states cannot effectively undertake these policy measures without a supporting international framework for the regulation of transnational digital corporations, fair use exemptions for intellectual property rights in AI technologies and the governance of cross-border data flows.
In the first two areas, there are already existing processes in the multilateral system that need to be leveraged: the negotiations on the binding treaty on transnational corporations and human rights must be closed out at the earliest with a dedicated section on platform companies; and the prevailing intellectual property rights regime must be revisited so that foundational digital infrastructure is made available as a global public good.
With regard to data, it is imperative that the governance of data flows is removed from the space of trade policy negotiations. “The need of the hour is a new binding international treaty on data that recognizes the sovereign right of states to evolve national policy frameworks for the governance of their data resources, working within the larger rubric of a data constitutionalism that respects, protects, and promotes the civic-political and economic rights of individuals and communities in data resources,” the authors state.
As Jovan Kurbalijia, the Executive Director of the argues, a multi-stakeholder policy dialogue forum at the international level to build policy traction on data and AI governance issues may be a useful step in the direction of international cooperation in the digital domain, GURUMURTHY and CHAMI write. The UN HLPDC’s recommendation to reboot the Internet Governance Forum into a Digital Cooperation Forum with due corrections to its historical weakness of lack of concrete action outcomes and dedicated discussion lines for governments/other stakeholders is a concrete direction in this regard.
Finally, in the highly skewed and exceptionally unequal global digital economy, strengthening ODA contributions to digitalization for development strategies in the global South must be undertaken, according to the authors. As the UNCTAD has flagged, the share of aid for ICT in aid for trade is only a mere 1.2%, and only 1% of project funding of multilateral development banks in developing countries has gone to ICT projects. This needs to shift immediately, through a dedicated mechanism to co-ordinate development funding for digital public goods that are integral to the realization of Agenda 2030.

From the League of Nations to the United Nations: Milestones for the International Civil Service

The centrality of a diverse, independent and loyal international civil service to the effectiveness and efficiency of a multilateral organization is a given today. Such professionals not only manage day-to-day operations of countless such organizations around the world but also plan, promote and implement international policies and agendas.
“Indeed, ideas of internationality, independence, and loyalty were recognized as crucial cornerstones when the first professional international civil service was established 100 years ago with the creation of the League of Nations,” writes KAREN GRAM-SKJOLDAGER in ‘From the League of Nations to the United Nations: Milestones for the International Civil Service’, a report published by the Dag Hammarskjöld Foundation as part of a series commemorating 100 years of the international civil service.
The League of Nations was founded as part of the Versailles Peace Treaty in June 1919, which also saw the creation of the International Labour Office and the Permanent Court of International Justice. “However, the statesmen and diplomats who created these new international organizations had given little thought to the form and function of the largest administration of this new multilateral system: the League Secretariat,” the author states. Article 6 of the League’s founding document, the Covenant, merely stated that a secretariat should be created comprising ‘a Secretary-General and such secretaries and staff as may be required’.
While the creation of the League Secretariat itself marked a critically important initial milestone in the development of a modern international civil service, the first Secretary-General of the organization, former British senior diplomat Sir Eric Drummond, more or less had a free hand to organize the Secretariat the way he saw fit. Working out of small office in Cumberland House in London with a staff of just three, Drummond started designing his new administration. The humble beginning of the Secretariat stood in stark contrast to Drummond’s ambitious vision, which would have an impact on the role of international civil servants over the decades to come.
The core principles of the modern international civil service – multinational staffing, institutional independence and undivided institutional loyalty – came into being in an incomplete and improvised form and developed gradually through the inter-war years. “With the creation of the United Nations, the experiments and experiences of the League were transformed into fully-fledged, formalized concepts and principles and lifted to the highest legal level enshrined in the UN Charter and other multilateral treaties,” GRAM-SKJOLDAGER states.
The new and enhanced legal status of the international civil servant was substantiated by the creation of a new UN Standard of Conduct for international civil servants. In 1949, the International Civil Service Advisory Board was set up to develop a standard of conduct for international civil servants. Here too, the continuities from the League, are clear.
The 1954 ‘Report on Standards of Conduct in the International Civil Service’ became a handbook for international civil servants. The report confirmed and developed the principles of multinationality, independence and loyalty from the League but with a somewhat stronger emphasis on the rules and procedures that enhanced the institutional autonomy of the international civil service. Thus, it confirmed the principle that the Secretary-General (and the Executive Heads of the specialized agencies) had the sole authority in appointing staff, now highlighting how this needed to be ‘maintained in practice as well as in theory’.
When addressing the issue of multinationality, the board also made it clear that while a broad geographical representation was desirable, the Secretariat leadership should be accorded a high degree of flexibility and room for maneuver. The board thus expressed the ‘firm conviction that the fixing of any rigid quota for geographical distribution would be extremely harmful to an international secretariat’, recommending ‘a regional approach to geographical distribution’ and that ‘corrections’ to imbalances should be made gradually and without rigid scrutiny. The ‘Standards of Conduct’ remained relatively unchanged until 2001, getting its last major update in 2013. It is still an important document for international civil servants today.
The new and robust legal framework for the international civil service was reflexive of a more general strengthening of the Secretariats political role. Unlike the League Secretaries-General, the new Secretaries-General of the UN were authorized to bring issues before the Security Council that they considered to be a threat to international peace and security (Article 99). They could now also be assigned any function that the Security Council or General Assembly, the Economic and Social Council or the Trusteeship Council decided on (Article 98), thus transcending the purely administrative function as the head of the Secretariat.
While much has changed, a lot remains the same, as GRAM-SKJOLDAGER reminds us. The UN Secretariat today continues to confront a major challenge the League grappled with: How the international civil service achieves broad geographical representation and close interactions with its surroundings, while also maintaining the undivided loyalty of its officials and securing its institutional independence.

Theorizing the Judicialization of International Relations

The advent of judicialization beyond national borders marks a fundamental shift in international relations, leading some to argue that this shift is permanent. Some governments, however, have responded by mobilizing political resources and strategies to defend their interests.

“In addition, populist revolts against European integration and globalization more generally may have been exacerbated by the strength of the courts associated with the European Union (EU) and the World Trade Organization (WTO) and the international arbitral tribunals that hear investor-state disputes by foreign corporations,” write KAREN J. ALTER,  EMILIE M. HAFNER-BURTON and  LAURENCE R. HELFER in the journal International Studies Quarterly. “These politics may take a long time to fully play out, so that the ultimate impact of international adjudication may not be immediately apparent.”

For example, China’s entry into the WTO and its acceptance of the obligation to adjudicate trade disputes has had many downstream political effects, the authors write in their article titled ‘Theorizing the Judicialization of International Relations’. The United States no longer uses the threat of withdrawing most favored nation market access because China disrespects the human rights of its citizens. The binding and legally enforceable nature of WTO trade rules has constrained responses to increased Chinese imports, contributing to the US and European strategy of negotiating new trade agreements outside of the WTO framework, to the invocation of national security as a justification for limiting imports, to the current US policy of blocking appointments to the WTO Appellate Body, and to a populist backlash against trade liberalization. 

Most recently, the United States announced its withdrawal from a 144-year-old postal union treaty, because this treaty provides discounted small package shipping rates for Chinese goods sent to the United States. The WTO also creates a potential platform for China to take up the mantle of multilateralism that the Trump administration is shedding. “These events are not wholly determined by the judicialization processes we discuss. Yet, it is nonetheless the case that the legal rights and obligations associated with China's WTO membership – and the fact that these rights can be judicially enforced—have been a global political game changer.”

The overarching insights of the judicialization framework – that states do not fully determine the content, scope, or impact of delegation or adjudication and that legal process can diminish the role of executives and legislatures – has important implications for the study of international relations, ALTER, HAFNER-BURTON and HELFER state.

A key implication is that some of what the law actually does takes place in the shadows. “The mere threat of adjudication can prompt mobilization, bargains, and negotiations in ways that shape political decisions without any formal legal actions—a fact that has gone largely unnoticed by traditional international relations theory, which tends to focus on actual disputes and their settlements.” 

Moreover, the adjudication process itself, once it has kicked in, brings a range of new actors that have not traditionally been the focus of international relations theorists. Alongside states and their well-studied branches of government are many other actors, such as judges and arbitrators, that interject themselves into what traditionally have been considered state matters. 

Thus, for debates over compliance, looking simply to immediate state-driven outcomes may miss an essential element of law's influence. “Legal scholars have long understood that law is a process; interjecting this insight into the study of international politics can – and should – change the way we study what legal institutions actually do and how they help or hinder different actors and actions.”

Adjudication – and its very possibility – shapes legal discourse and state and international decision-making, the authors state. More broadly, the ‘practice of legality’ imparts a stability and a universality to international law that, at least in some circumstances, limits the extent to which the whims of executives are accepted within a single society or diffused around the world. 

The constraints of this stability may be limited, as, for example, when President Trump follows prescribed legal steps to execute decisions to withdraw from international agreements or to levy tariffs, thereby avoiding litigation over alleged abuses of presidential authority. Yet, the ‘stickiness’ of legal processes may also mean that, in the long run, Trump will fail to change the international institutions or laws he dislikes, avoiding a major disruption of the existing multilateral order.

“We do not dispute that power undergirds laws and legal practices, such as those concerning the use of force and the pursuit of vital national interests,” the authors state. “But the interests of great powers cannot explain all externally oriented national and international behaviors.” It cannot explain why international laws do not maximally advantage hegemonic interests, why human rights advocacy has developed specific understandings of legal rights-claiming, why firms and bankers worry about and respond to legal regulations, or why national judges decide cases by applying settled principles of legal interpretation that ignore guidance from political actors.

This does not mean that state interests no longer matter; indeed, the more powerful a state is, the better it may be able to deflect legal processes or harness law as another tool in its arsenal. “But it does mean that state interests may be shaped, limited, and channeled by adjudicatory bodies and nonstate actors in ways not yet fully understood.”

Karen J Alter, Emilie M Hafner-Burton, Laurence R Helfer, Theorizing the Judicialization of International Relations, International Studies Quarterly, Volume 63, Issue 3, September 2019, Pages 449–463, https://doi.org/10.1093/isq/sqz019

Track-Change Diplomacy: Technology, Affordances, and the Practice of International Negotiations

Most multilateral negotiations today take place via the computer screens, tablets, and mobile phones of diplomats, whom distance may separate, but who negotiate 24/7. The logical question is: How does technology influence international negotiations?
REBECCA ADLER-NISSEN and ALENA DRIESCHOVA explore “track-change diplomacy,” that is, how diplomats use information and communication technology (ICT) to collaboratively edit and negotiate documents.
“But technological advances and the ubiquitous nature of ICT do more than just facilitate negotiations. They also push negotiations in a particular direction, sometimes with unexpected consequences.”
To analyze the widespread but understudied phenomenon of track-change diplomacy, the authors adopt a practice-oriented approach to technology, developing the concept of affordance: the way a tool or technology simultaneously enables and constrains the tasks users can possibly perform with it.
Their article, titled ‘Track-Change Diplomacy: Technology, Affordances, and the Practice of International Negotiations’ and published in International Studies Quarterly shows how digital ICT affords shareability, visualization, and immediacy of information, thus shaping the temporality and power dynamics of international negotiations.
These three affordances have significant consequences for how states construct and promote national interests; how diplomats reach compromises among a large number of states (as text edits in collective drafting exercises); and how power plays out in international negotiations, the authors contend.
Drawing on ethnographic methods, including participant observation of negotiations between the European Union's member states, as well as in-depth interviews, the analysis casts new light on these negotiations, where documents become the site of both semantic and political struggle. “Rather than delivering on the technology's promise of keeping track and reinforcing national oversight in negotiations, we argue that track-change diplomacy can in fact lead to a loss of control, challenging existing understandings of diplomacy.”

Rebecca Adler-Nissen, Alena Drieschova, Track-Change Diplomacy: Technology, Affordances, and the Practice of International Negotiations, International Studies Quarterly, Volume 63, Issue 3, September 2019, Pages 531–545, https://doi.org/10.1093/isq/sqz030