The role of the special rapporteurs of the United Nations Human Rights Council in the development and promotion of international human rights norms

It has been acknowledged that the institution of UN special rapporteurs for human rights known as the special procedures have played an important role over a long period of time in promoting and protecting human rights in some of the most difficult circumstances and on some of the most challenging issues. They have done so through not only monitoring and fact finding but also standard-setting over the past three or so decades. They have been credited for influencing significantly the elaboration, interpretation and implementation of international human law and brought the human rights work of the UN to the ordinary men and women around the globe. However, the institution of special rapporteurs itself seems to be coming under pressure not only from outside but also from inside the UN system. Currently, there is a debate taking place on the role of the special rapporteurs in the context of the review process of the Human Rights Council itself by the UN General Assembly since most of the special rapporteurs are appointed by the council to assist it in achieving the objectives set out in the General Assembly resolution of 2006 that created the council to replace the former Commission on Human Rights. Given the nature of the debate that has taken place within the council in the recent past, there are fears that some states or groupings of states may try to abolish the country special rapporteurs and undermine the significance of certain special rapporteurs especially those holding mandates relating to certain core civil and political rights by imposing additional restrictions on their freedom of action.

The importance of the special rapporteur system appears evident, yet there is no consensus on good or best practice in the way that mandates should be carried out or the extent or limits of the responsibilities of governments to assist special rapporteurs. Moreover, there is limited systematic scholarly examination of the nature and impact of the role of the special rapporteur in international law. It is then timely to examine the role of the special rapporteurs in the development and promotion of international human rights norms and this is what the articles included in this special issue seek to do. It is in this context that the Centre for International Governance at the School of Law of the University of Leeds decided to organise an international research workshop designed to examine closely the role of special rapporteurs in the development and promotion of international human rights norms. The idea was to understand the role and challenges that the special rapporteurs were facing and the contribution that they were making and could make in the future to the promotion and protection of human rights. Accordingly, a two-day international research workshop was held at the University of Leeds on 24–25 June 2010 which brought together some former and current special rapporteurs themselves, academics interested in this area, civil society representatives and other researchers working in this area.2 The discussions focused on the following issues:

•	The importance of the role of the special rapporteurs;
•	The relationship between the Human Rights Council and special rapporteurs;
•	The working methods and effectiveness of special rapporteurs in carrying out their functions;
•	The role of country mandate-holders; and
•	The role of special rapporteurs in developing international law.

We were fortunate that the editorial board of The International Journal of Human Rights expressed an interest in publishing the articles in a special issue devoted to the topic of the UN special rapporteurs. The articles that are included in this special issue are the revised versions of certain of the papers in order that a wider community of scholars, researchers, policy makers, diplomats, and other stakeholders including those working for intergovernmental and non-governmental institutions could engage with the arguments. The hope is that this special issue will be of interest to the wider community of scholars, policy and decision makers, researchers, diplomats, various other stakeholders in the area of human rights and those interested in the human rights dimensions of international law and international relations.

Questioning the role (or roles) of the special rapporteurs

The fundamental questions that these articles aim to address are as follows: first, what is the role of a special rapporteur; secondly, what should the role be (and who or what should determine the nature of the role); and, thirdly, how does this function/role ‘fit’ with other UN human rights bodies (leave to one side the complexities that emerge if we take into account the regional mechanisms). These are some of the issues which have taken on a greater urgency at a time when the issue of ‘reform’ is once again on the UN agenda. The articles published in this special issue cover the following four broad areas:

The first set of articles examines the roles and relationship between the Human Rights Council and the special rapporteurs. In the face of expected review of the Human Rights Council by the General Assembly in 2011, the relationship between the council itself and the special procedures is an important one. The relationship between the council and the special rapporteurs both defines the nature of the roles the special rapporteurs and conditions their effectiveness in promoting the protection of human rights and developing international ‘soft-law’ norms. The relationship is defined in the mandate of the special rapporteur, and the flexible nature has allowed special rapporteurs to respond to changing needs in specific problem areas. At the same time, the code of conduct for special rapporteurs adopted by the Human Rights Council suggests an attempt to restrict the activities of the special procedures. Key questions here include the following: what is the relationship between the Human Rights Council and the special rapporteurs; what is the evidence that the relationship has become ‘politicised’; how are the decisions made to appoint (and remove) a special rapporteur; what are the requirements for a good working relationship between the state and the special rapporteur; how important is it that special rapporteurs can act in a way that is seen to be independent; is there an argument for separating the special procedures framework from the Human Rights Council; and what implications would this have for the council? These issues are explored in the articles by Professors Pinheiro, Rodley, Smith and Sunga.

Paulo Sergio Pinheiro reflects on his experience as a special rapporteur and the workings of the scheme more generally.3 The concern is to evaluate the possibilities of an independent special rapporteur scheme and the requirement to engage effectively with the state and government. The article concludes with a number of observations on the importance of the UN special rapporteurs and proposals for reform. Nigel Rodley, another former special rapporteur, examines the responsibilities of special rapporteurs within the framework of the United Nations. The article presents a detailed elaboration of the normative and institutional structures that frame the working methods of special rapporteurs.4 Rhona Smith addresses the problems around the establishment of an independent scheme operating under the auspices of the Human Rights Council, which is a political body comprised of states.5 The article explores the relationships between special rapporteurs and other UN bodies; the process of appointment and termination of mandates; and the ways in which special rapporteurs operate within political constraints. Lyal Sunga argues for a defined role for special rapporteurs in the area of international criminal justice – specifically in relation to a role in fact-finding and the International Criminal Court (ICC): the ICC does not have the resources to undertake effective fact-finding missions, therefore it should be able to rely on the fact-finding missions of special rapporteurs, with implications for the conduct of the role.6 The argument is for a greater co-ordination of the efforts of UN institutions concerned with the protection of the human person.

The second set of articles looks at the working methods of a special rapporteur. The focus is the effectiveness of the special rapporteurs in carrying out their functions. Some of these articles look at the authority and legitimacy of the role, which provides individual actors a key function in the promotion of human rights in the international system. The scheme depends on the independence of the mandate-holder, yet special rapporteurs cannot act without reference to relevant international law norms or the telos of the role – the promotion of human rights. how then are the special rapporteurs to understand their role, and what are the requirements for effectively undertaking that role? Key questions here are as follows: how should the independence of the special rapporteurs scheme be understood (independence from what and to do what); what administrative support is required for special rapporteurs (and how does this affect their independence and neutrality); what or who are the special rapporteurs responsible to; what are the standards of responsibility and what are the consequences where a special rapporteur fails to act in accordance with those standards; what international law (and other materials) should they rely on in undertaking their role; what factual information (and from what sources) are special rapporteurs able to rely on; what is the quasi-judicial role, if any, of the special rapporteurs in ‘judging’ allegations of human rights violations; is the ‘quasi-judicial’ role inherent in the work of the special rapporteur, or should the role be defined and limited by the mandate; to what extent should the states be involved in the text of the final reports (i.e., do they have a right of notice and comment); how important is transparency to the system; what is the position of witnesses under the special rapporteur scheme, what rights and protection do witnesses have, and what obligations do witnesses have to provide honest testimony; in the construction of the role of the special rapporteurs, how is the role defined; and how important is the international human rights system, the personality of the mandate-holder, the mandate, the instruments adopted by the council (including the Code of Conduct for Special Procedures Mandate-Holders and Manual of Operations of the Special Procedures of the Human Rights Council)?

In this section, Ted Piccone presents the findings of an empirical study into the UN special procedures. The work highlights the importance of the co-operation by states with special procedures and the impact of other challenges such as inadequate resources, but also the importance of the system to the effective protection of human rights and the need for further strengthening and support of the special procedures.7 Joanna Naples-Mitchell presents the findings of her empirical work on the role of special rapporteurs, highlighting the ability of special rapporteurs to influence the nature of the mandate and for partnership with state governments.8 The article highlights the unique contribution of the special rapporteurs scheme and the need to maintain its unique aspects in any process of reform.

The third set of articles examines the role of mandate-holders. The country mandate is perhaps the most controversial aspect of the special rapporteur, the mere fact of being subject to a mandate is an implicit criticism, and comments and reports of special rapporteurs can be seen as a ‘judgment’ of the human rights record of the state concerned. In order to be effective, country mandate-holders must be allowed access to the state, its people, the government, opposition and civil society actors. It also suggests a standard against which the state should be ‘judged’, but given the fragmentation of international human rights law it is not evident what that standard should be (or the extent to which special rapporteurs should replicate the work of other UN institutions (such as the Human Rights Committee established under the 1966 Covenant on Civil and Political Rights). Key questions here concern the role of special rapporteurs in promoting human rights in a way that can be seen as independent and consistent with their mandate and role. They include: the requirements for the effective conduct of the role, including pre-visit information; the right of access to the state and to all parts of the state; engagement with individuals and civil society actors within the state; the rights and expectations of individuals who meet with the special rapporteur; access to senior government members, including those responsible for the protection of human rights; publicity about any visit; the possibility of the special rapporteur promoting domestic debate on human rights issues; the fact-finding aspect of any visit and status of any comment on the facts; and the necessary requirements for the effective gathering of information. There is also a need to examine the responsibilities of states and evaluate the impact of special rapporteurs: what are the duties of cooperation here (and what is the experience); what are the requirements for the special rapporteurs to carry out their role effectively; what is the role of non-state actors, including civil society and the media; and what follow-up mechanisms are required? What responsibilities do member states have to cooperate with special rapporteurs?

The articles here by Surya Subedi and Amrita Mukherjee explore the respective roles of the mandate-holders through the lens of a specific mandate. In the case of Surya Subedi, the focus is the author's own experience as a UN special rapporteur of the situation of human rights in the Kingdom of Cambodia. The article highlights developments in the country and the importance of engagement with the international community.9 The article examines the challenges of the special rapporteur role in complex conditions and the importance of the scheme and the way in which the author understands the role. The essay concludes with more general comments concerning support for mandate-holders. By contrast, Amrita Mukherjee focuses on the fact-finding missions of the special rapporteur on torture, locating the mandate in the wider UN system and examining the various fact-finding missions.10 The analysis highlights the role and importance of fact-finding missions, its strengths and weaknesses.

The final set of articles analyses the role of special rapporteurs in developing international law. Some of the articles included in the special issue examine the role of the special procedures mandate-holders in shaping international norms. The focus is on the ways in which special rapporteurs have played a part in the emergence, acceptance and internalisation of international human rights norms. This development has emerged inter alia in the reports of the special rapporteurs on thematic trends in the protection of human rights, delivered in separate reports. There is a need to examine the impact of these reports on the body of international human rights law. The focus is on both the way in which special rapporteurs shape international soft-law norms and the reliance by special rapporteurs on soft-law instruments to evaluate the human rights situation in a particular state. The focus is on both civil and political rights and economic and social rights (which often have a more indeterminate, or ‘softer’, quality). Key questions here include: what evidence is there that special rapporteurs have developed international human rights law; which international courts and tribunals have relied on the reports of special rapporteurs; to what extent have other bodies and academics relied on the work of special rapporteurs; what ‘sources’ of international law do special rapporteurs rely on themselves; given the fragmentation of international law and international human rights law, is the role of the special rapporteur consistent with a positivist analysis of global governance (indentifying what states have willed), or can the special rapporteur system be seen as part of a ‘governance’ system, subjecting certain states to a set of values they have not accepted; to what extent are special rapporteurs part of the governance system of the international community, and is the role legitimate; and if special rapporteurs are part of a system of public law governance what are the implications of this for the ways in which they carry out their mandate?

In this section, Allehone Mulugeta Abebe examines the role of the UN special rapporteur on the human rights of internally displaced persons in developing the international law on internal displacement through the establishment of ‘guiding principles’, and the ways in which other mandate-holders are following the example to promote the development of general international law norms.11 The article demonstrates the normative influence of special rapporteurs and the ways in which the role relates to other aspects concerning the protection of human rights within the United Nations. It suggests a new method of international (‘soft’) law-making in areas in which initial agreement in the form of a ‘hard’ international treaty proves difficult to establish. The principal focus of the special rapporteurs concerns civil and political rights. Christophe Golay, Claire Mahon and Ioana Cismas examine the role of the special rapporteurs scheme in relation to the development and implementation of economic, social and cultural rights; in particular the importance of the special rapporteurs in ‘clarifying’ and ‘developing’ the normative content of rights.12 The article further examines the role of relevant mandate-holders in promoting economic, social and cultural rights and makes recommendations for improving the schemes.

Conclusions

The arguments developed in the articles were articulated at the workshop at the University of Leeds, with the subsequent debate on the past, present and future role (or roles) of special rapporteurs highly informative, interesting and thought-provoking. During the discussions a number of important themes emerged. These themes should inform any review of the workings of the special rapporteurs scheme and areas for further research. The discussions highlighted the following:

1.	There is a need for transparency and the elaboration of objective criteria in the selection of special rapporteurs. Selection should be undertaken on the basis of the expertise and experience of candidates;
2.	The relationship between the Human Rights Council and special rapporteurs is of crucial importance to the effective execution of the role and responsibilities of special rapporteurs. Whilst the participants accepted that the council is by definition a ‘political’ body (being comprised of states), it is necessary for the Human Rights Council and special rapporteurs to frame their relationship in a way that does not undermine the possibility of promoting the promotion of human rights.
3.	The importance of proper funding and administrative support for special rapporteurs was emphasised;
4.	The workshop accepted the requirement for special rapporteurs to be accountable for their actions, but expressed concern that any new or reformed mechanisms of accountability should not undermine the independence of special rapporteurs or their ability to promote human rights;
5.	The discussions emphasised the importance of the role of special rapporteurs in providing a voice for victims of human rights abuses, who have few opportunities to be heard in the international system;
6.	The independence of the role is central to the effectiveness of the special rapporteur schemes. Whilst engagement with states is essential for the carrying out of the relevant functions (in terms of access to information and particular places), the relationship with the state should not undermine the ability of the rapporteur to provide an objective judgement of the situation;
7.	The production of accurate reports with clear recommendations is an important element in the role of special rapporteurs. Good practice suggests that special rapporteurs should allow the state to see a report before it is made public in order to correct any factual errors and provide a considered response to recommendations;
8.	The workshop highlighted the importance of ‘follow-up’ mechanisms and the difficulty for special rapporteurs undertaking the role; it also noted the importance of the Universal Periodic Review in this regard and the involvement of the special rapporteurs in such a review;
9.	The workshop highlighted the importance of engagement at the national level and with domestic political actors (including the government and opposition); The importance of engaging with the people and civil society through the local media was emphasised;
10.	Special rapporteurs should be guided by the provisions of general or customary international law (binding on all states); the commitments accepted by a particular state through acceptance of international treaty obligations; and the normative commitments contained in other documents adopted by the United Nations (in particular the UN General Assembly);
11.	Where special rapporteurs evaluate the actions of states against international law standards, there is a requirement to ensure as far as possible the factual accuracy of any information and allow the government the opportunity to present its understanding of the situation; and
12.	The research workshop highlighted the positive role that special rapporteurs play in the codification and elaboration of existing international law norms.

The arguments developed in the workshop; the conclusions outlined here and the detailed analysis developed in the papers present an important contribution to understanding the role of the special rapporteurs in the protection of human rights; the need to ensure the independent and effective conduct of the role; and importance of the schemes for the promotion of human rights. These conclusions remain central to ongoing considerations around the position of the special rapporteurs in the UN system for the protection of human rights.

Additional information

Notes on contributors

Surya P. Subedi

1

Notes

The views expressed in this article are the personal views of the author and not necessarily those of the United Nations nor those in his official capacity as the UN special rapporteur.

See Sylvia Ngane, Amrita Mukherjee, Surya Subedi and Steven Wheatley, ‘Report of the International Workshop: “The Role of the Special Rapporteurs of the Human Rights Council in the Development and Promotion of International Human Rights Norms”’ (Leeds, UK: Centre for International Governance, University of Leeds, August 2010), http://www.law.leeds.ac.uk/assets/files/research/cfig/special-rapporteurs-workshop-report.pdf (accessed October 25, 2010).

Paulo Sergio Pinheiro, ‘Being a Special Rapporteur: A Delicate Balancing Act’, International Journal of Human Rights 15, no. 2 (2011): this issue.

Nigel Rodley, ‘On the Responsibility of Special Rapporteurs’, International Journal of Human Rights 15, no. 2 (2011): this issue.

Rhona K.M. Smith, ‘The Possibilities of an Independent Special Rapporteur Scheme’, International Journal of Human Rights 15, no. 2 (2011): this issue.

Lyal Sunga, ‘How Can UN Human Rights Special Procedures Sharpen ICC Fact-Finding?’, International Journal of Human Rights 15, no. 2 (2011): this issue.

Ted Piccone, ‘The Contribution of the UN's Special Procedures to National Level Implementation of Human Rights Norms’, International Journal of Human Rights 15, no. 2 (2011): this issue.

Joanna Naples-Mitchell, ‘Perspectives of UN Special Rapporteurs on their Role: Inherent Tensions and Unique Contributions to Human Rights’, International Journal of Human Rights 15, no. 2 (2011): this issue.

Surya P. Subedi, ‘The UN Human Rights Mandate in Cambodia: The Challenge of a Country in Transition and the Experience of the Special Rapporteur for the Country’, International Journal of Human Rights 15, no. 2 (2011): this issue.

Amrita Mukherjee, ‘The Fact-finding Missions of the Special Rapporteur on Torture’, International Journal of Human Rights 15, no. 2 (2011): this issue.

Allehone Mulugeta Abebe, ‘Special Rapportuers as Law Makers: The Developments and Evolution of the Normative Framework for Protecting and Assisting Internally Displaced Persons’, International Journal of Human Rights 15, no. 2 (2011): this issue.

Christophe Golay, Claire Mahon and Ioana Cismas, ‘The Impact of the UN Special Procedures on the Development and Implementation of Economic, Social and Cultural Rights’, International Journal of Human Rights 15, no. 2 (2011): this issue.