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Catalysts for CHANGE
How the UN's Independent Experts Promote Human Rights
By TED PICCONE
BROOKINGS INSTITUTION PRESS
Copyright © 2012 THE BROOKINGS INSTITUTION
All right reserved.
Chapter One Who Are the UN's Independent Human Rights Experts?
We are the via media between the victim and the Human Rights Council and indeed the world. We place the protection of those in need as high among our priorities and pursue a victim-oriented perspective. We have the enormous task of analysing the human rights situations, making relevant recommendations and striving for justice for the victims, actual and threatened. —Miloon Kothari, former special rapporteur for the right to adequate housi\ng
The United Nations system of independent human rights experts is a unique and effective mechanism that allows independent, periodic, on-the-ground scrutiny of a country's record of respect for human rights. Since the appointment by the Commission on Human Rights of an ad hoc working group to inquire into the situation of human rights in Southern Africa in 1967, this mechanism has grown to become one of the UN's most important instruments for promotion of universal human rights norms at the national and international level. Under continuous attack by some member states for intruding on what they consider their internal affairs, states nonetheless decided to preserve them largely intact when the Commission on Human Rights was replaced by the Human Rights Council (HRC) in 2006. Since then the council has created several new independent-expert mandates, a further reaffirmation of the importance of this mechanism for the promotion and protection of human rights. Mandates are established to monitor and report on either a country-specific scenario—such as human rights in the Islamic Republic of Iran—or the status of a thematic issue worldwide—such as freedom of expression, torture, or the right to adequate housing. Several thematic mandates, as they are known, also cover group rights, such as the situation of migrant workers or the indigenous population. Nearly all of them carry out country visits and make public reports on their findings regarding respect for rights in specific countries as an essential element of their work.
As of December 2011, thirty-five thematic mandates exist, an increase of 67 percent since 2000; ten country-specific mandates are in operation, a decline of 40 percent over the same period. This shift reflects two important trends: the creation of new mandates dealing with economic, social, and cultural rights of particular concern to developing countries; and successful efforts by some states, particularly those with bad human rights records, to avoid the "naming and shaming" tactics associated with country-specific mandates in favor of thematic mandates and the peer review and technical assistance aspects of a new mechanism known as the universal periodic review. This latter trend was tempered in March 2011 when the new Human Rights Council established its first country-specific monitor: a special rapporteur to address the human rights situation in the Islamic Republic of Iran. This country-specific mandate was followed by the establishment of the rapporteurs on Côte d'Ivoire and Syria later in 2011. These are positive signals that the council is willing to use independent experts to address new country-specific issues on top of the prodigious reporting that already exists on thematic human rights issues in specific countries.
The experts appointed by the HRC to serve as special procedures are independent of governments, serve in their personal capacities, and carry out their mandates on a volunteer basis. Under new reforms adopted in 2006, special procedures may serve no more than six years total (thematic mandate holders typically serve two terms of three years, and country-specific mandate holders typically serve for one-year renewable terms). Their authority is derived from their professional qualifications to address specific human rights situations objectively as well as the political mandate they receive from the Human Rights Council. Governments rely on them to gather facts, identify problems, and make recommendations. One of their greatest assets is a profound sense of commitment to the cause of human rights, which, combined with subject matter expertise, political skills, and good judgment, represents a dynamic force for catalyzing attention and action to protect human rights.
In June 2007 the Human Rights Council agreed on a new system of appointing its independent experts that moves away from the close control formerly exercised by the president of the council and the high commissioner for human rights toward greater transparency and consultation with multiple stakeholders. Candidates may be nominated by governments, nongovernmental organizations, other UN bodies, or individuals. The Office of the High Commissioner for Human Rights (OHCHR) prepares a public list of eligible candidates. Criteria for appointment include human rights expertise and experience in the field of the mandate, independence, impartiality, personal integrity, and objectivity. A consultative group composed of diplomats from each regional group reviews the candidates and makes recommendations to the president of the council, who continues a process of consultation before presenting the list to the HRC for final approval. This method has decreased the level of backroom dealing and manipulation that was evident under the old system and continues to generate, on the whole, an impressive and diverse group of candidates from every region. Some states, however, continue to demand that their favorite candidates be chosen, as was seen in June 2010 when the president of the council acquiesced to demands from the Africa and Asia bloc for particular appointees.
The main reference points for the independent experts' examination of a state's human rights record range broadly from the general provisions of the Universal Declaration of Human Rights and other internationally recognized human rights standards to the specific terms of their mandates from the HRC. They may rely on particular instruments of "hard" treaty law as well as "soft" law of relevant declarations, resolutions, and guiding principles. In this regard, they have several important advantages over treaty bodies: they are not restricted to the text of any one convention; they may examine any UN member state, not just those states that have ratified a treaty; they may make in situ visits to any country in the world (assuming the government concerned grants permission); and they may receive and act on individual complaints without prior exhaustion of domestic remedies. This combination of features gives them a uniquely flexible and independent role in a system otherwise dominated by governments. They operate, in the words of one researcher, in the space between universal norms and local realities, allowing them to elaborate and interpret international standards grounded in concrete situations, "to define rights in real time."
What role such a mechanism plays in engendering state cooperation to defend human rights is the central inquiry of this book. While the UN Charter sets forth every state's obligation to promote "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion" and to cooperate with the UN to achieve this objective, no specific treaty instrument binds member states to cooperate with the special procedures or to comply with their recommendations. The Human Rights Council has, however, urged "all states to cooperate with, and assist, the special procedures in the performance of their tasks, and to provide all information in a timely manner, as well as respond to communications ... without undue delay." Furthermore, when creating the council, the General Assembly decided that states elected to the new body "shall fully cooperate with the Council." Nearly all states that run for a seat on the council make pledges in which they proclaim a commitment to work cooperatively with the council and its mechanisms, including its independent experts. These provisions offer some leverage for the independent experts to insist on state cooperation, but in reality experts rely mainly on political pressure and moral suasion to influence state behavior.
A variety of factors, detailed in this book, help to determine a state's responsiveness to special procedures' scrutiny of their human rights performance. These factors include, but are not limited to, the timing of the scrutiny as it relates to a state's political development; the credibility and authority of the United Nations; the quality and specificity of the special procedures' work; the willingness and capacity of local nongovernmental organizations to articulate and follow up on their grievances; the freedom and capacity of the media to report on the work of the independent experts; and the capacity of relevant UN offices and the attention they pay to the work of special procedures.
In carrying out their mandates, the HRC's independent experts employ a variety of working methods to bridge the distance between international norms and national-level implementation. These include country visits; direct communications with victims and their representatives regarding specific violations; letters of allegation and urgent appeals to governments; thematic and country reports submitted at least annually to the Human Rights Council and, where mandated, to the General Assembly; press statements, both individually and jointly; and press conferences. Of these, the country visits and communications are most directly relevant to evaluating the contribution of special procedures to national-level implementation of international norms and, therefore, serve as the core focus of our analysis. The prominence and intensity of country visits and reports and the extensive written record of communications lend themselves most readily to analysis as they provide direct lines of communication between special procedures and member states and offer tangible evidence of varying levels of state cooperation. In conducting our research we have attempted to capture the quality of state responses to and cooperation with communications and country visits instead of merely counting the quantity of instances of cooperation.
Working methods among the independent experts vary for several reasons. First, they have the independence to develop their own approaches. Though often required to conduct country visits and communicate with member states, mandate holders have the prerogative to determine how to focus their attention. Second, working methods can largely depend on the topic at hand. In some cases, special procedures work in an area of well-defined norms and will primarily focus their attention on documenting cases through communications and identifying best and worst practices through country visits. The Working Group on Enforced and Involuntary Disappearances, for instance, has compiled an impressive and detailed compendium of individual cases and state responses. Other mandates may focus primarily on normative development. Francis Deng, the first special representative of the secretary-general on internally displaced persons, spent much of his first six years developing the Guiding Principles on Internal Displacement, which he presented to the Commission on Human Rights in 1998. These international standards were subsequently unanimously endorsed by the General Assembly and have served as an invaluable tool for the protection of the displaced. By and large, mandate holders focus their time on both victim protection and normative development, but the balance is up to them and depends largely on the human rights issues addressed in their mandates.
Of the forty-five special procedures mandates, six are working groups, which differ in significant ways from mandates composed of a single independent expert. These six working groups are all thematic in nature: African descent, arbitrary detention, enforced or involuntary disappearances, the use of mercenaries as a means of impeding the exercise of the right of peoples to self-determination, laws that discriminate against women, and transnational corporations and other business enterprises. While these mandates serve the same general purpose as the individual rapporteurs and experts—promoting and protecting human rights—their working methods differ.
Working groups are made up of five members, one from each of the five UN regional groups, one of whom serves as chairperson-rapporteur. This geographic diversity is an asset, as it makes it more difficult for hostile governments to justify noncompliance by claiming that these special procedures are beholden to a regional group or individual sponsor. On the other hand, having members from five different regions can complicate collaboration, communication, and consensus and increase costs. The members often speak different languages, must coordinate multiple schedules and time zones to communicate, and must travel long distances to meet in person. In light of these challenges and pursuant to their respective themes, the working groups have developed distinct working methods to promote and protect human rights.
The national origin of special procedures mandate holders is often the subject of debate among members of the council, with some states claiming favoritism toward Western or Northern candidates. In fact, of the current mandates in existence, the geographic composition of present and former mandate holders represents an impressive variety of national and regional backgrounds. Kenya, Pakistan, and the United States are the most represented nationalities, with seven mandate holders each. Following these three countries are Argentina, France, India, and Senegal, with six mandate holders each, and South Africa, with five. Chile, Ghana, Hungary, Mexico, and the United Kingdom are also well represented, with four mandate holders each. A review of representation by regional group similarly shows an impressive diversity in national origins. The Western Europe and Others, Africa, and Asia Groups lead the pack with forty-seven, forty-three, and forty mandate holders, respectively, while the Latin America and Caribbean and the Eastern Europe Groups represent the national origin of twenty-nine and eighteen mandate holders, respectively. A list of current mandate holders can be found in appendix B.
Generally, mandate holders hail from academia or law and maintain their career posts while serving as independent experts. Given the range of regional and professional backgrounds, mandate holders have different levels of support outside the UN apparatus. Some mandate holders may enjoy generous support from a home university, while others may lack an affiliation all together and rely solely on UN support.
Despite these and other challenges and varied circumstances, special procedures mandate holders have contributed their expertise to effectively protect victims, develop norms, and raise public awareness about human rights violation worldwide. They are united by their deep dedication to the implementation and preservation of universal standards, and over the course of more than forty years they have impressively developed techniques that catalyze domestic implementation of international norms.
The contemporary system of UN special procedures has developed in a fairly uncoordinated fashion over the decades. Though the system has evolved greatly since the first mandate was established in 1967, many of the working methods and challenges have remained the same. The legal basis for the independent experts originated in the 1967 Economic and Social Council Resolution 1235 (XLII), which authorized the Commission on Human Rights "to examine information relevant to gross violations of human rights and fundamental freedoms." Resolution 1235 was a critically important step in expanding the commission's mandate to examine human rights violations. Before Resolution 1235 was adopted, the commission operated under the Economic and Social Council's original 1946 instruction that it had "no power to take any action with regard to any complaints concerning human rights." During the its twenty-one-year period of "no power to act," the commission was limited to considering human rights violations through confidential communications and subsequently focused primarily on drafting a panoply of treaties rather than monitoring specific human rights situations.
Pursuant to Resolution 1235, the first three monitoring mechanisms were established, for Southern Africa (1967), the Arab territories occupied by Israel (1969), and Chile (1975). The working groups on Southern Africa and Chile were both mandated by the commission and had five members each. The working group on the Arab territories—the only mandate of this group still in existence—was mandated by the General Assembly and had only three members. While all three mandates represented an important shift in the UN's ability and willingness to examine human rights violations, it was the mandate on Chile that moved the commission beyond its focus on racism and post-colonialism to concentrate instead on the fallout of a military dictatorship, thus opening the door to consideration of a wider range of countries. The Chile mandate, arguably more than its contemporaries, set an important precedent for future mandates.
Excerpted from Catalysts for CHANGE by TED PICCONE Copyright © 2012 by THE BROOKINGS INSTITUTION. Excerpted by permission of BROOKINGS INSTITUTION PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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