Non-Democratic States

On the face of it, if non-democratic states aren’t concerned about the provision or protection of good human rights standards, then the level and manner of a treaty body’s interaction might be immaterial. The tendency when dealing with such states might be to criticise their lack of commitment and to demand improvements in their national institutional and legal frameworks. Such an approach is assumed to be inefficient because it requires the expending of significant resources on states that are likely to ignore such didacticism.

Instead, a more appropriate procedure might be to attempt to use the periodic review mechanism to socialize such states around the social norms the relevant treaty attempts to protect. This is an even softer form of interaction than the approach taken with respect to emerging democracies, as the interaction doesn’t focus on a state’s level of adherence to the treaty requirements but instead attempts, through constructivist approaches, to improve the state’s appreciation for the values of the norms the treaty protects. Attention is not given to the state’s institutional problems: to do so would lead to focus being applied to the wrong issue. Instead, interaction between the state and the treaty body would be more normative in nature, beyond the level of the reality of the state’s practices. It

could be argued, very fairly, that this approach ignores the gravity of these states’

human rights standards, and that, by not emphasising these practices, treaty bodies condone them or fail to assist the citizenry of these states. While a strong argument, it might be equally correct to counter that unless these states are conditioned to accept the social norms the treaty protects then addressing practical issues will not be worthwhile (efficient).

On top of this, periodicity may also be of relevance: longer periodicities may result in the impetus for improving recognition of the social norm being lost.

During the period between the interactions between the monitoring body and the state, the state may have failed to internalise the dynamics of the engagement.

Instead, shorter periodicities have two benefits: firstly, as discussed, the shorter the periodicity the greater the opportunity for the monitoring body to socialize the state around the relevant social norms; secondly, shorter periodicities, if the engagement between the monitoring body and the state is managed carefully, can be framed as a means by which the state’s international reputation is improved. In this latter case, if the treaty body system structures engagement in such a way that it is not viewed by the international community as a critical approach, but rather one of socialization, and if this occurs on a regular basis, then states in this category might see incentives in engaging. Engagement increases the state’s reputational stock, as it is seen more often at meetings with the monitoring body and at the centre of the international organisation’s power base. Separately, while the state may view this increased level of engagement as positive – assuming the engagement is not critical but rather socializing – the increase in engagement may also increase the expectations of the international community, which assumes that the state’s cooperation signals its willingness to improve its standards. As such expectations increase, it become more difficult for the state to later renege on its assumed greater willingness to participate in the monitoring process.

While very theoretical – and perhaps challenging for purists – this perspective represents a novel approach to engagement with non-democratic states in the periodic review system. Equally, it essentially ignores the essence of the review system, and rather suggests that this mechanism be utilised as a tool through which socialization might be achieved. This, too, might be unpalatable for many.

IV. Conclusions

Periodic review acts as a means by which state adherence to human rights treaties can be monitored and facilitates the resolution of information asymmetries between treaty bodies, the international community, and states parties to the various international human rights instruments. The great diversity between the various periodic review mechanisms means there is no coherence to the system and means that states can rationally choose the review mechanisms to which they want to submit. Essentially, it has been argued, state preferences stump the system working effectively.

Alterations to the system can be made, however: the periodicities of reports to treaties that share a similar subject matter can be aligned; periodicities can be adjusted to reflect a treaty’s subject matter and the assumed time it takes to implement better human rights standards in that particular area; engagement with states can be tailored according to a state’s ‘type’; and states that submit punctually, given their resources, can be rewarded with a seat on a punctuality commission. The establishment of the latter entity, based on the SERF Index utilised in chapter 6, would be a significant step in taking advantage of state self-interest in the advancement of better standards and more punctual submission in the periodic review procedure.

But while these proposals are a rather large step for a system that appears badly organised and subject to state preferences, a much simpler step would be to require treaty bodies to consider the reports submitted to other bodies in their assessment of a state’s commitment to human rights on a general level (as is the case under CERD). But given that even this rather small change might require significant bureaucratic effort and political will to implement, the propositions that have been put forward here would appear a long way away from being realized.

Nonetheless, recognising state self-interest as a crucial factor influencing the periodic review system’s problems has provided us with some interesting insights into how the system can be enhanced. While the proposals themselves are not stepping-stones toward a better and more effective system, they are nevertheless building blocks on which further analysis can be carried out.