LOOPS AND HOLES: NEGOTIATING HUMAN RIGHTS AT THE CENTRE

Paper held at Plenary session II ‘Bureaucratic Closings – Bureaucratic Openings‘ of the German Anthropological Association’s Annual Conference in Konstanz, Sept 30 (with Matthew Hull and Colin Hoag).

Warm thanks to the organizers for this kind invitation, it is a great pleasure to be here. Warm thanks also to my co-presenters – it is an honor to engage in this debate with you.

My paper is titled ‘Loops and holes: negotiating human rights at the center’. It approaches the themes of this panel from the vantage point of UN human rights monitoring, specifically the documentary cycles of the Human Rights Committee, the treaty body that monitors how states comply with the International Covenant on Civil and Political Rights (ICCPR). The paper includes a fair amount of technical detail that I have – in the interest of time – attempted to condense. I look forward to elaborating any points that may remain unclear in the Q&A. 

1 ‘YOU KNOW’

“You know, this issue was way ahead of its time – no work had been done to prepare the ground.” We are standing on the terrace outside the cafeteria of the Palais Wilson at the heart of Geneva. The Lac Léman located in front of us has developed gentle waves. It is warm but somewhat windy as is often the case by the water. The day has already turned toward the afternoon and we should be heading back indoors as the UN Human Rights Committee is likely back in session. Yet I delay finishing my coffee for just a little longer as I hope to learn more of how one maneuvers inside the opaque transparency of the UN human rights apparatus to make one’s case – ‘to form an issue’. 

My accompaniment – an NGO delegate of British origin in his 50s – knows this and more, having been engaged in human rights work for decades, thus embodying significant institutional memory. Preparing the ground, ‘looping’ and ‘ripening an issue’– a textbook example of the processes of social negotiation via which things really are done! Simultaneously it is an explanation of how  ‘UN reality’ forms the playing field of insiders at the exclusion of those who are without the social and financial capital required for such negotiations, no matter how compelling their cases might be – the transformation of human rights from tools of emancipation for the world’s underdogs to the site of professional and activist engagement by the world’s privileged.

2 LOOPS & HOLES

This panel has invited us to consider the processes of social negotiation that accompany bureaucracies– the ways in which bureaucracy serves to maintain power as well as constitutes a distinct mode of exerting power; the limits imposed to negotiation by the materiality of bureaucracy, and finally, how in the processes of social negotiation the formal and the informal become enmeshed.

In my paper I will engage with these themes via an ethnographic insight of the ‘loops and holes’ – or loopholes – that human rights insiders resort to they negotiate their causes in the opaque transparency of the UN human rights apparatus. More specifically, I will explore techniques and concrete moments of lobbying by NGO delegates as they seek recognition for diverse issues in front of expert committees known as UN human rights treaty bodies, simultaneously seeking to expand the scope of what human rights are understood to encompass.

My paper – and research more generally – connects with the body of anthropological scholarship produced over the past decades exploring diverse aspects of bureaucracies, including documents and meetings, at the UN as well as other IOs and NGOs. One aspect of my research has been to focus on the movement of artefacts, people and expertise that such practices as UN human rights monitoring both build on and result in. 

In this analysis I build on the concepts of ‘centre’ and ‘periphery’, borrowed from the world system analysis of the late Emmanuel Wallerstein. I explore this movement’s historical foundations and contemporary consequences, including how it reproduces and solidifies prevailing power relations. Here my work connects with scholarship produced by international lawyers, particularly the group called as ‘crit’ or ‘twail’, aka Third World Approaches to International Law. This analytical framework is present also in this paper, with the ‘center’ being embodied by the Geneva human rights hub.

In dictionary definitions a loophole is characterized as a ‘small opening that permits the entrance of light, air or observation’; it is a way of avoiding something, and further ‘a way around an obstruction that would otherwise keep a person from obtaining a goal’.

In this paper I utilize loopholes in two significances. The first refers to the processes of social negotiation relied on by insiders of the international human rights regime to maneuver around the obstructions imposed by the formalities of UN bureaucracies. The second is the manner in which these negotiations embody a paradox between the ideal of human rights as tools for the world’s underdogs and reality, namely, how these negotiations become a loophole for privilege.

3 ICE

In describing the inner contours of the UN human rights apparatus (this concept nods to Foucault’s work in specific), I use a second metaphor: ice. Just like ice, the microstructure of the UN apparatus is porous and characterized by subtle openings – or holes. Just as ice thaws, perhaps melts a bit, then freezes again, also the microstructure of the apparatus keeps changing via the introduction of new action plans and expert bodies, accompanied by the annihilation of existing ones. The structure also changes with the continued rotation of personnel, resulting in the recasting of networks and working methods. 

Opaque transparency captures further the constant interplay of the formal and the informal characteristic of many processes within the apparatus. It also capturesfragility, which is an intrinsic part of the UN human rights apparatus: just as ice breaks by a sudden blow, so may parts of the apparatus be instantly shattered by unexpected state budget cuts. This is an all-too familiar experience to insiders, resulting in a shared sense of unpredictability and even cynism toward the UN as an organization – sentiments balanced by the unwavering belief and commitment that many UN human rights insiders have for protecting human rights.

In all, the metaphor of ice captures the ‘opaque transparency’ of ‘UN reality’ characterized by ‘fuzzy logic’ (an expression borrowed from Bourdieu). In their study of the Universal Periodic Review by the UN Human Rights Council, Jane Cowan and Julie Billaud have concluded how sometimes the very practices that are supposed to guarantee transparency can in reality cloud it over. At the outset this may appear problematic or as constituting a ‘flaw’ – transparency being one of the greatest desirables for contemporary bureaucracies. Yet, insiders may view things differently: opacity may form a desirable shield to the apparatus’s fragility, simultaneously strengthening its ability to protect human rights. 

Human rights insiders – whom I in my work call the ‘guardians of vision’ – are also aware of how to take practical advantage of opaque transparency: they are aware of the elements that can and need to be highlighted in human rights work, as well as made exaggeratedly visible in order to guarantee the successful operation and legitimacy of these monitoring mechanisms. They are also aware of the elements that need to be hidden, such as their personal realm of influence.

4 DOCUMENTARY CYCLES OF UN TREATY BODIES

My research explores these themes around one particular genre of international human rights monitoring known as ‘UN human rights treaty bodies’. Treaty bodies are committees formed of 15-20 human rights experts – often meaning professors of human rights law – that convene annually to two or three sessions of a few weeks mostly in Geneva. The concrete task of treaty bodies is to monitor how states comply with the obligations that they have undertaken by becoming parties to the main UN human rights covenants.

The creation of treaty bodies leads us to the 1940s when planning for the post-world war II world was in full swing: distinct activists lobbied for the creation of a legally binding International Bill of Rights –modelled after the US Bill of Rights – which would be backed up by a human rights court operating under the UN with universal jurisdiction. 

Due to firm state opposition this goals was never even close to being realized. Instead the eventual outcome was a bill broken into three pieces: the legally non-binding preamble, which became the Universal Declaration of Human Rights adopted in 1948, and the two main UN human rights covenants – the ICESCR and the ICCPR – both adopted in 1966 and entering into force in 1976. Instead of a court, UN treaty bodies were created to monitor the covenants. 

Today the total number of treaty bodies is 10, and they monitor among others the International Covenant on the Rights of the Child (ICRC) and the International Convention on the Elimination of Discrimination Against Women (CEDAW). My ethnography has focused on the UN Human Rights Committee which monitors the International Covenant on Civil and Political Rights (ICCPR), and is commonly seen as the most authoritative and lawlike of all UN human rights monitoring mechanisms. 

As this graph illustrates, the very purpose of treaty body work is to be cyclical – with one phase following another in a seamless continuum, thus creating infinite ‘movement in the right direction’ (as I am calling it in my ongoing book project). 

From a legal viewpoint treaty bodies are curious things: whereas their founding rests on clear legal grounds – aka distinct covenant provisions – in practice the Committee’s relationship to the law is subject to continued negotiations. These negotiations reflect an expansionary aim both for the increased role of the Committee to address human rights concerns as well as a continually greater scope for what are legally recognized as human rights.

The required space for these negotiations finds tangible presence in the very provisions of the ICCPR that have created the Committee, which state that the Committee may determine its rules of procedure.[1]

5 STATE REPORT

In practice the operations of the UN Human Rights Committee are structured around the processing of three primary genres of documents: periodic state reports, individual communications and documents known as General Comments. Of these, processing state reports occupies the bulk of the Committee’s time, culminating in sessions known as ‘Constructive Dialogue’. 

A state report is a summary of some dozens of pages by the state party on how it has realized the obligations enlisted in the covenant with particular emphasis on how the state has improved its conduct from the previous reporting cycle. In aesthetic terms a state report is highly legalistic: the information it contains is organized around paragraphs and sub-paragraphs in a covenant-like manner, with repeated references to pieces of legislation. The tenor of state reports is matter-of-fact and objective.

In terms of substance, state reports echo the current ‘pulse’ of human rights monitoring: they highlight issues that are being addressed by diverse bodies of the UN human rights apparatus at the given moment. This is not coincidental but finds a logical explanation from the compilation of state reports: this task is commonly carried out by civil servants at national foreign affairs ministries, who will typically prepare reports for numerous UN treaty bodies (and different regional human rights monitoring mechanisms). 

Although the drafting process commonly includes diverse consultative stages, a significant role is bestowed on existing documents: drafting for a state report commonly commences by copy-pasting material from previous state reports submitted both to UN monitoring bodies and regional ones. Thus any individual documents is always tightly connected to ongoing ‘human rights dialogue’, as was illustrated by Annelise Riles in her early work.

The centrality of state reports in UN treaty body proceedings captures the most important obstruction that NGOs face as they attempt to forward their causes within the UN human rights apparatus: as only states are parties to UN human rights covenants, only states have the capacity to make public statements during the monitoring cycle by participating in the ‘constructive dialogue’. 

Thus the question becomes: how do NGOs get around this formal obstruction and find entry points for joining negotiations on the issues that should be incorporated into the human rights ‘dialogue’ carried out in front of the UN Human Rights Committee? 

6 PALAIS WILSON

To address this question we need to go back to the Palais Wilson. The Palais is in itself a place worthy of attention in understanding the past and present of international human rights work: back in the 1920s the Palais served as the headquarters of the League of Nations, and today it serves as the headquarter of the UN Office of the High Commissioner for Human Rights. These observations highlight some of the continuities and commonalities that UN human rights work has with the era of the League – some of them quite troubling and paradoxical in closer observation.

The Palais Wilson is also where UN treaty bodies have their sessions including ‘constructive dialogue’. In practice ‘constructive dialogue’ consists usually of two sessions of three hours each where representatives of states first make verbal statements, followed by questions by treaty body members and then answers by state delegations. The outcome is a mix of careful scripting and occasional improvisation resulting in moments of keen engagement combined with alienation and downright boredom.

Sessions of the Human Rights Committee are open to the public (aka observers who have accreditation to the Palais Wilson), and usually shared ‘to the world’ via webcam. Constructive Dialogue is further characterized by diverse formalities illustrated by this photo: fixed seating arrangements accompanied by simultaneous translation. 

During sessions only members of the Human Rights Committee and the state delegation can make oral interventions whereas other observers are expected to form a silent audience. In other words, NGOs have no formal role in the proceedings.

However, during the past decades numerous opportunities for NGO engagement have been created. The most important of these are the lunch-time briefings that take place exclusively between members of the Human Rights Committee and NGO delegates prior to the constructive dialogue with the state. These briefings are accompanied by documents known as ‘shadow’ or ‘ancillary reports’ containing NGO information to complement and challenge the information contained in the state report.

Both the existence of NGO hearings and the importance invested in ancillary reports can be seen to embody ‘loopholes’ created by UN human rights insiders to maneuver around obstructions formed by the formalities of UN bureaucracy that place states together with the information that states provide at the core of this monitoring mechanisms. Or to put the same in insider-human rights lingua: the obstructions formed by the ‘s-word’ aka state sovereignty.

 The existence of these NGO hearings owes itself directly to the ‘opaque transparency’ in which ‘guardians’ have delicately negotiated for a greater role of NGOs in this state-centric monitoring framework, seen as instrumental for the greater advancement of human rights. 

7 PREPARING GROUND BY LOOPING 

Yet these hearings by no means suffice for ensuring that NGOs succeed in having their issues included in the constructive dialogue – instead more systematic engagement is required. To understand these processes we need to go back to the late afternoon coffee break at the terrace of the Palais Wilson. 

It is precisely via such moments that seasoned NGO delegates may seize unchoreographed moments to lobby for their causes: they may catch a member of the Human Rights Committee enjoying the last few afternoon rays of the sun, or savoring a cigarette, subsequently engaging them for an impromptu chat over the issue they represent. Or alternately they may engage with a member of the UN Secretariat to talk of the submission of a given document, perhaps exchange views of an informal NGO hearing. 

The importance of these moments is intensified by personal relations: in the non-stop movement accompanying UN treaty body sessions people keep coming and going to and from the Palais Wilson. Yet the people who stay put are surprisingly few, thus allowing for insiders of the Geneva human rights hub to become familiar with one another.

Together these moments of personal engagement become part of an ongoing ‘looping’ through the ‘holes’ of the ice-like structure of the UN human rights apparatus – they are instances of ‘maturing’ an issue and preparing the ground for the issue’s inclusion in the formal human rights dialogue. 

Importantly this looping and preparing the ground occur also via documents circulating between different UN human rights monitoring mechanisms. My discussion with John illustrates this: 

When John first entered UN treaty body proceedings in 2002, the issue he represented was ‘way ahead of its time’. Consequently the first time it was introduced through an individual communication to the Human Rights Committee it was considered as inadmissible as the issue was not seen as something that the Committee or the International Covenant on Civil and Political Rights addressed – in other words, the issue was not seen to fall under the established scope of human rights.

Yet slowly things started to change, in part because of active lobbying. John recounts how in the process different moments of engagement build on top of each other. He describes how he goes back and forth from the Human Rights Committee to the Human Rights Council (the latter being the UN’s most important political human rights monitoring mechanism). First he tries to get the Committee to recognize something that he himself has authored in the Concluding Observations or a press release. He then takes this mention to the Human Rights Council, not as his own view but rather as the view of the Committee – and so forth. 

He does the same back and forth with the reports of individual states: he first submits an ancillary report in the name of the NGO that he represents. He then connects with people from relevant NGOs at the country in question urging them to do the same. Sometimes he also coordinates the local NGO report’s submission, simultaneously connecting them with international collaborators, thus solidifying the international lobbying network around the issue. 

Yet for all this to be effective, the issue must still find visibility in the ‘constructive dialogue’ between the Human Rights Committee and the state. For this to occur, the issues needs to be incorporated in a document known as a ‘list of issues’, a background document prepared by members of the UN secretariat that forms the backbone of the constructive dialogue.

As there are more or less always more issues raised by NGO reports than will eventually become embodied in the constructive dialogue, negotiations – this time concrete ones – assume a role of importance: commonly members of the UN secretariat will consult NGOs in the creation of the list. This, in turn, often occurs in small informal meetings in which personal participation becomes crucial.

However, making matters more complicated, because of the complex temporality of UN bureaucracy the list is not adopted in the same session where the constructive dialogue is held but rather months earlier (after which the list will be edited, translated and disseminated). In other words, if an NGO wishes to make the issues it represents visible in the treaty body cycles, it should be present in Geneva not once during the constructive dialogue around any state’s report but twice.

This, in turn, is an unrealistic goal for most human rights NGOs dispersed around the world both for the astronomical expenses involved as well as the personnel resources that such travel requires. This concretizes the importance of physical presence of NGOs – such as the one personified by John – at the international ‘centre’ of human rights work embodied by Geneva. This presence, in turn, requires tremendous capital, casting such NGOs by definition as a part of a distinct transnational elite.

8 NEGOTIATING IN & WITH OPAQUE TRANSPARENCY

These ethnographic glimpses concretize the social and financial capital that is required for participating in the elaborate processes of social negotiation within the UN human rights apparatus. Interventions need to occur at the right moment – meaning for UN treaty bodies the right moment of the documentary cycle. Before these interventions, the ground must be appropriately prepared so that the issue is ‘ripe’ and seen to fit within an accepted understanding of human rights.

These insights help to explain why some concerns have found inclusion as core human rights issues whereas others have not. The case of LGBTI -rights – Lesbian, gay, bisexual, transsexual and intersexual rights – offers one of the most high profile recent examples of an issue that has been mainstreamed in the work of the Human Rights Committee: whereas a decade ago this cluster of issues was seldom if ever considered by the Committee, today it has become a staple that is addressed in the case of most state reports. 

Importantly, within the UN more generally LGBTI-rights remain controversial. Thus the issue of LGBTI-rights illustrates how activists, by mainstreaming the issue in UN treaty body sessions, have successfully negotiated around the obstruction formed by the issue’s controversial nature in the ice-like structure of the UN human rights apparatus. Simultaneously they have prepared the ground for the issue’s general acceptance.

By comparison, in the absence of similar orchestrated lobbying, neither the rights of the elderly or stateless children have found similar centrality within UN human rights monitoring, despite both issues appearing as self-evident core human rights issues.

9 SO WHAT?

To conclude my paper I want to ask, somewhat polemically: so what? What can we learn from this exploration of loops and holes that is of relevance outside the subfields of the anthropology of human rights and bureaucracy? How might such inquiries serve to strengthen a more visible and influential anthropology beyond our discipline?

Upon preparing for this paper I realized that these issues formed an almost separate paper, with themes moving from the exaggeratedly ‘technical’ nature that much pioneering anthropological work on human rights adopted, perhaps in an attempt to solidify the legitimacy of these undertakings, to anthropology’s perpetual sense of self-crisis, accompanied by a search for reinvigoration.

I also realized how long it had been since someone had last asked me the question: ‘just what is anthropological about your work?’ It is perhaps worth noting how quickly the study of these fields has become solidified in our shared scholarly space – particularly for a discipline as conservative as anthropology.

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During the past seven decades since the adoption of the Universal Declaration of Human Rights, a massive global phenomenon has formed around human rights. We can locate this phenomenon in the human rights discourse(s), community and artefacts, with human rights ideology located at the phenomenon’s core. Over the past decades all of these elements have faced considerable expansion.  What is today understood to form a human right is greatly more expansive than a few decades ago when even the question of whether women’s rights were unquestionably ‘human rights’ was still debated – something that today appears quite difficult to grasp.

In most human rights scholarship authored primarily by international lawyers and international relations scholars this expansion is unquestionably presented as a favorable development, and further, the mechanisms via which expansion has occurred are accepted without analytical curiosity. Instead they are seen to represent an almost natural-law like progression of the unilinear development of mankind embodied by the spread of human rights ideology.

An anthropological inquiry into such subtle mechanisms of expansion, as well as the moments of social negotiation, adds relevant nuances to this dominant image. 

This is also where I see the greatest potential for anthropological contributions, both within the study of human rights, bureaucracy and beyond: anthropological inquiries allow us to penetrate beyond the layers of the self-evident and – when steered with the bold use of anthropological imagination – they may assist us in seeing ‘the unexpected in the mundane’. That is particularly when accompanied by a spirit of collegial solidarity and encouragement.

My paper has formed one attempt to explore what such use of anthropological imagination might result in.

I look warmly forward to your thoughts and comments.

THANK YOU VERY MUCH FOR YOUR ATTENTION!

*Interior photos details of the Palais Wilson

 


[1]Article 36 of the ICCPR states: “The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Covenant.” But Article 39, par 2 clarifies that “The Committee shall establish its own rules of procedure, but these rules shall provide, inter alia, that (a) Twelve members shall constitute a quorum;

(b) Decisions of the Committee shall be made by a majority vote of the members present.

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