Regarding Rights

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The ‘call and answer’ of the Universal Periodic Review. Against ‘ritualism’?

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By Shane Chalmers

Regulatory Institutions Network, ANU

AHRC Australia's Universal Periodic Review 2012

AHRC Australia’s Universal Periodic Review 2012

The following piece draws on the work of two scholars: Jane Cowan’s paper on ‘an anthropology of the UPR’ presented at the Centre for International Governance and Justice’s Workshop on Rights, Ritual and Ritualism: The Universal Periodic Review at the Australian National University, Canberra, 13–14 December 2012; and Desmond Manderson’s book Kangaroo Courts and the Rule of Law (Routledge, 2012). Where these two scholars meet here is in the notion of ‘call and answer’ (to use Manderson’s phrase) — in the contention of many voices resounding inharmoniously — in the ritual dialogue of the international human rights Universal Periodic Review process.

In what briefly follows I reflect on how the United Nations’ human rights Universal Periodic Review (UPR) might represent a form of ‘regulatory ritual’ that denies, by its very form, the calcifying effect of ‘ritualism’. Before I turn to the UPR itself, however, first a few words on how I understand the terms ‘ritual’ and ‘ritualism’—two concepts employed by Professor Hilary Charlesworth in relation to human rights through her project ‘Strengthening the International Human Rights System’.

Ritual and ritual process

The word ‘ritual’ is both a noun and an adjective. As a noun ‘ritual’ refers to a form of behaviour (a Ritual). In this sense a Ritual may be understood as ‘an action or series of actions regularly or habitually repeated’ or ‘repeated actions or patterns of behaviour having significance within a particular social group’ (Oxford English Dictionary). As an adjective, however, ‘ritual’ qualifies the form of behavior (a ritual process). In this sense a Ritual may be understood as a process ‘of the nature of or constituting a rite’ or ‘of or relating to the performance of rites’ (OED).

The word ‘ritual’ thus describes both the institution of a procedure (a Ritual) as well as the constitution of that procedure as a process (a ritual process). As will become clear, I use ‘process’ here in the sense of ‘the course of becoming as opposed to static being’, and therefore also in the sense of ‘a narrative; an account; a story; a play… an argument, a reasoned discussion, a disquisition’ (both definitions from the OED). ‘Procedure’, by contrast, is wholly pre-determined action: a ‘pre-scribed way of doing something’ (OED). Whilst process is also pre-determined to some degree, the difference is in the dynamic quality of what takes place in a process, as opposed to the static quality of procedure. It is this dynamic quality that allows for meaning to become in-scribed through a process rather than merely being pre-scribed for the rote performance of procedure.

This coupled definition is significant because it means that the term ‘ritual’ qualifies itself in a way that denies it becoming the mere appearance of process. A Ritual is not in fact a ritual in the fullest sense of the word unless the instituted procedure is always also constituted by and constitutive of a meaningful process.

‘Ritualism’ is a Ritual without that dynamic quality. It is the noun form without its adjectival content—a procedure without process.

Rites and right

It is not surprising that the words ‘right’ and ‘rite’ were used interchangeably in the past. This may be explained by confusion on the part of our English-speaking forebears (as the OED suggests), but there may be a more interesting explanation in the intimate connection between the two terms. It is enough to look around to see that what is ‘right’ and acceptable is affirmed and internalised through periodic social ‘rites’, from the most impressive court proceedings to the everyday acts of courting a desired stranger. A ritual in this sense is a social performance of what is right which seeks through the performance of the given rite to call forth the norm and reaffirm it against what is deviant and perverse.

To add to the previous definition, then: a Ritual may be understood as a process of the nature of or constituting what is right, or of or relating to the performance of rights.

In this sense, a Ritual involves a process of becoming according to a particular concept of right, such as human rights. Critically, however, as a ‘story of becoming’ the ritual process itself works to enliven the concept. That is, there is nothing im-mediate about a particular concept of right: what is ‘right’ is always made and re-made through a normative process—through ‘a narrative; an account; a story; a play… an argument, a reasoned discussion, a disquisition’. I return to the implications of this in a moment, in the light of Desmond Manderson’s work on law and literature. But first a few words on ‘ritualism’.

Ritualism and the vulnerability of human rights

A Ritual may be a powerful means of establishing normative order through the performance of what is right, a human rights Ritual no less so. But it does so on the basis of deviancy—by drawing out the contradictory behaviour that is immanent in every self-identifying ‘normative actor’ (by which I mean simply an actor that identifies itself with a normative order, such as a state that identifies as being ‘human rights compliant’). Of course the identity ‘human rights actor’ does not come without the potential for its opposite: ‘human rights violator’ in its most flagrant form, but more often and more insidiously, ‘human rights in-actor’. The latter form is more insidious because, unlike overt violations which may be called out and made answerable in a public forum, thereby strengthening the force of the normative order (just think of the criminal trial, for this is its basis too), the inaction of a self-proclaiming ‘human rights actor’ is harder to see, harder still to confront, and as a result undermines the very idea of human rights, by neutralising its normative force.

Yet the necessary violability of human rights is the vulnerability that every human rights actor must continuously confront, because it cannot be avoided. It cannot be avoided because, whether the threat to human rights comes from blatant acts of state or the arrogance of assuming the title ‘human rights actor’ means just that and not also and always its opposite, the threat is what gives meaning to ‘human rights’ as an idea of justice. What it means to be a normative actor is not only to comply with the accepted norms but what is more, to confront and to be confronted by deviancy from the norm. What it means for a state such as Australia to be a human rights actor, for example, is not only to uphold the rights of recognised refugees but also to recognise the many ways in which it deviates from its responsibility towards those who seek asylum.

I began by noting ‘the calcifying effect of ritualism’. What I mean by this should now be clearer. Ritualism is lime-like: it is the displacement of a process that is about vulnerability by an impermeable shell of procedure that is about precisely the opposite: erecting a rigid barrier to protect against vulnerability. A Ritual is about ‘vulnerability’ because it means dealing face-on with the deviancy that is the tender substance of normativity. Indeed it is this critical aspect that continues to protect human rights, by laying bare its vulnerability; and it is the calcifying effect of ritualism that denies it.

If that is so, the problem with ‘ritualism’ is that it repeats the given concept of right but avoids the potential for actors to confront and to be confronted by their contradictory behaviour, by displacing the process of confrontation with mere procedural formality.

But if that is so, a ritual process that requires normative actors to front-up and answer calls that target their vulnerability and draw out their deviancy may resist the lime-like accretion of ritualistic avoidance. It would be in the repeated (‘periodic’) confrontation with the many present, different and inharmonious voices (the contra-diction of ‘peers’) that the Ritual would work against the sort of analogue reproduction of accountability that is offered by a call-centre answering machine (‘for complaints about the treatment of asylum seekers, press #’).

The ‘call and answer’ of ritual dialogue

Desmond Manderson draws out the implications of this form of dialogical process for law and justice through his book on Kangaroo Courts and the Rule of Law (Routledge, 2012). Reflecting on the literary form of the novel, Manderson shows how it opens up a space in which oppositional characters and dispositions come into confrontation in a process that refuses a totalitarian vision of the world at the same time as it works transformatively and constitutively upon them. But more than this, he shows how the literary process has the potential not only to re-write a story’s characters but also to re-write its author. The literary process is messy, often hostile, sometimes deeply violent—to the development of a story’s characters as well as to that of its author—but this is contra-diction in its most beautiful sense: the creation of meaning through a lively dialogue with oneself and others.

In this sense the literary form, like the ritual form, is prevented by its creative process from ossifying into an authoritarian-like procedure. A work of literature, like a Ritual, is by its very form a forum of contradiction that writes and re-writes the behaviour and disposition of the characters as well as that of the author/ity. In the case of a Ritual, the ‘characters’ are the normative actors whose behaviour and disposition is re-written in the ritual process at the same time as they re-write the authority of the normative order itself, challenging and re-creating what is ‘right’. What is right is therefore always in the process of becoming through the contra-diction of ‘a narrative; an account; a story; a play… an argument, a reasoned discussion, a disquisition’ that sets what is considered deviant against what is considered right.

Thus what Manderson shows through his book on the rule of law is how the possibility of ‘right’—of imperfect law but justice—is in the ‘call and answer of the unceasing friction between persons’ (page 185). The implications of this for understanding what takes place in a legal forum such as the international human rights UPR may be seen in Manderson’s remark at page 159, that

judgment is an endless cicyle which is capable of turning the ineluctable tensions, oppositions and disagreements that make up the law into a productive and indeed constitutive dialogue. The rule of law can be understood then as a set of ideas that institutionally protect the social and dialogic process of exposing and critiquing reasons for decisions, rather than as a set of ideas that institutionally entrench the hierarchical or hieratical process of announcing them.

It is this form of dialogical process, as opposed to the pre-scribed judgment that characterises procedural ritualism, that appears to distinguish the ‘periodic/peer review’ of the human rights UPR as a legal forum.

The ‘call and answer’ of the Universal Periodic Review process

In her anthropological study of the UPR, Jane Cowan shows how the Universal Periodic Review resembles such a ritual process (what she refers to as a ‘public audit ritual’). This is interesting because it suggests the UPR might represent a kind of ‘soft law’ human rights mechanism that resists by its very form the calcifying effect of ritualism.

Officially the UPR is

a unique process which involves a review of the human rights records of all UN Member States. The UPR is a State-driven process, under the auspices of the Human Rights Council, 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.

What is important about this process is how it takes place. Cowan, whose research took her and her colleague Julie Billaud inside the UN in Geneva to witness the UPR as it played out over twelve months of review sessions, describes the process:

The UPR is called by its actors both a ‘periodic review’ and a ‘peer review’. It takes the form of a three-hour interactive dialogue. The State under Review has the opportunity to declare what actions they have taken to improve the human rights situation in their country and to discuss challenges. Other states question the State under Review on specific human rights issues and give recommendations that it is free to accept or reject.

The form of this ‘interactive dialogue’ has its limitations, particularly the very short question-and-answer time frame and the exclusion of non-state actors from speaking to states directly in the sessions. And yet there is something potentially powerful about this periodic peer review process. This can be seen in how it takes place as a form of ‘public audit ritual’—a term that, for Cowan, ‘captures better [than the term ‘periodic review’] the nature of the UPR as a form of “soft power”’, given its ‘combination of coercion and voluntary engagement, and of external (collective peer) oversight plus self-revelation and anticipatory self-regulation.’

Thus for Cowan,

UPR is about the State ‘giving an account of itself’: it requires a performative demonstration of its fulfilment of aims and objectives. UPR aims at an interiorisation whereby the State under Review becomes accustomed to surveying itself, as it is surveyed by others. … The friendly language [used in the review process] is thus double-edged: a potential weapon against hard criticisms, it is also subtly coercive in drawing actors into the project of self-management.

Despite the UN General Assembly’s vision of the UPR as ‘non-confrontational’, the process is thus in an important sense deeply confrontational. The words of the other states may be spoken in a ‘friendly’ and ‘non-politicised manner’, but the act of speaking—no matter how soft the words—always confronts the silence and disturbs what is settled. By calling forth an answer, the other states draw out and mark publicly the behaviour of the State under Review. If a state identifies itself as a human rights actor it cannot avoid the contra-diction that characterises this process and must account for its behaviour one way or another. This is so whether or not the other states’ calls are met by silence, because not even silence can avoid the call. The absence of an answer from the State under Review is so resounding precisely because the other’s call continues to ring in the silence. Even when an answer is given, what is said is less important than the act of having to give an account. Indeed what is noted in a state’s account of itself may be evasive, even fictional, but focusing on the veracity of what is said risks missing what is most important about the process.

What is most important is the act of participating in the ‘interactive dialogue’ of the UPR as a self-identifying human rights actor. That is so critically important because it is through the ritual process that the normative character of an actor is called forth and written down (right-ed) over endless cycles, and the normative order itself is called forth and re-inscribed by the actors involved. Crucially, however, by having the final word it is the actors themselves who write the authority of the human rights regime at the same time as the authority of international law seeks to write (right) the character and disposition of the states. It is this ritual process that works to create and transform the normative order and the behaviour of its actors.

Against ritualism?

Taking what I heard from Cowan and reflecting on it in conjunction with Manderson’s work on the rule of law, it would seem the dialogical form of the UPR has at least the makings of a ‘ritual process’ that might work against the problem of ‘ritualism’. What I have sketched here highlights why this might be so, and why the UPR and other similar ‘soft law’ processes are so critical in both protecting human rights and continuing to re-create both the normativity of the international human rights regime as well as what it means to be a human rights actor.

To recall the definition set out above, a Ritual may be understood as a process of the nature of or constituting what is right. It is this normative process that qualifies it as a Ritual. Seen as such, the UPR resembles both a legal-bureaucratic procedure and a normative process that works against the calcifying effect of ritualism by exposing the vulnerability that is at the heart of every self-identifying human rights actor. Appearing in front of its peers to account for its behaviour through the UPR process, a state is required to confront and to be confronted by the calls of others—calls that are unavoidable and linger in the answers of even the most silent. It is the public performance of this ‘call and answer’ that works against the Ritual of the UPR calcifying into ritualism and ensures no state can avoid the vulnerability of human rights.

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