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Abstract
The independence and impartiality of the special rapporteursFootnote1 is undoubtedly one of considerable importance to their work. In the context of the special procedures operating under the auspices of the Human Rights Council, a number of questions arise: what is meant by independent; independent of what; why is independence deemed so important; and what are the major barriers to independence? This article focuses on those questions, with particular regard to the role of the Human Rights Council (whose operation is scheduled for review in 2011) then draws together the threads of argument to ponder the implications, particularly for the Human Rights Council, of removing rapporteurs from its jurisdiction.
Acknowledgements
This article would never have been drafted without the invitation of Professor Steven Wheatley to participate in the Special Rapporteur Workshop at Leeds University. Its content is also shaped by his suggestions in accordance with the themes of the workshop. Accordingly, his support, and that of Dr Amrita Mukherjee, is gratefully acknowledged, though all responsibility for the final content is mine alone.
Notes
Note the term rapporteur is used herewith for consistency within this edition. Many of the UN documents use ‘special procedures’ as a more generic nomenclature which includes special rapporteurs, independent experts, working groups, etc.
N. Rodley, Preface to Ingrid Nifosi, The UN Special Procedures in the Field of Human Rights (Antwerpen: Intersentia, 2005), vii.
There is for example extensive documentation on independence of judges, including Basic Principles on the Independence of the Judiciary (GA Res. 40/32, 29 November 1985) and material on National Human Rights Institutions (Paris Principles relating to the Status of National Institutions, GA Res. 48/134, 20 December 1993).
Ibid., drawing on objective and subjective tests for independence.
United Nations Human Rights Council Resolution 5/1, II A at para. 39(c).
Ibid. at para. 39(d).
Ibid. at para. 39(f).
United Nations Human Rights Council Resolution 5/2 (Code of Conduct), Article 3(a).
Ibid. at Article 3(e).
Ibid. at 3(f).
Current version August 2008, at para. 11.
Miko Lempinen, Challenges Facing the System of Special Procedures of the United Nations Commission on Human Rights (Abo: Abo Akademi, 2001), 40.
For example, in the UK, see Lord Browne-Wilkinson in In Re Pinochet Session 1998–1999 House of Lords, http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd990115/pino01.htm (accessed October 5, 2010)
Discussed infra.
In their letter of 4 September 2007, Annexe, ‘Possible Elements of a Code of Conduct’, Coordination Committee of Special Procedures, A Note by the Special Procedures' Coordination Committee in Response to Discussions on a Code of Conduct, Geneva, 13 April 2007, at para. 3.
UN Human Rights Council Resolution 5/1, at para. 46.
Discussed infra.
See press release statement by Leandro Despouy, Paul Hunt, Manfred Nowak (all rapporteurs) and Leila Zerrougui (working group chair) on their decision not to visit the US detention facilities in Guantanamo Bay, Cuba, due to restrictions on their visit.
Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, advisory opinion of the International Court of Justice, 29 April 1999.
Resources for rapporteurs are a vexed issue and considered infra.
With the core treaty exception of the Committee on Economic, Social and Cultural Rights which was created by ECOSOC Res. 1985/17, 28 May 1985.
For more on this, see, Jeroen Gutter, Thematic Procedures of the United Nations Commission on Human Rights and International Law: In Search of a Sense of Community (Antwerp: Intersentia, 2006); Nigel Rodley, ‘United Nations Human Rights Treaty Bodies and Special Procedures of the Commission on Human Rights – Complementarity or Competition?’, Human Rights Quarterly 25 (2003): 882–908, updated in Nigel Rodley, ‘The United Nations Human Rights Council, Its Special Procedures, and Its Relationship with the Treaty Bodies: Complementarity or Competition’, in New Institutions for Human Rights Protection, ed. Kevin Boyle (Oxford: OUP, 2009), 49–73; Lempinen, Challenges, 181–211.
For example, Professor Sir Nigel Rodley or Professor Philip Alston.
Jean Ziegler, for example, is currently serving on the Advisory Committee though was previously a special rapporteur on the right to food. Previously Professor Paulo Sergio Pinheiro has served as special rapporteur, independent expert and member of the sub-commission on promotion and protection of human rights.
Nifosi, UN Special Procedures, 149.
UN Human Rights Council Resolution 5/1, at paras 39(a) and (b).
Nifosi, UN Special Procedures, 149–50.
UN Human Rights Council Resolution 5/2, annexe Article 15.
So too with the former commission – e.g. see Lempinen, Challenges, 42, et seq.
Early press statements on the initial sessions of the Human Rights Council impute bias with an allegedly disproportionate focus on Israel and the Palestinian Occupied Territories notwithstanding significant human rights abuses elsewhere in the world.
Established 1992, Commission Resolution 1992/58; latest extension HR Council Resolution 13/25 (2010).
Established 2004, Commission Resolution 2004/13; latest extension HR Council Resolution 13/14 (2010).
‘Summary of the Discussions on the Review of Procedures, Prepared by the Secretariat’, UN Doc. A/HRC/3/CRP.2 (2006) at paras 32, et seq. This also reflects the tenor of literature on independence of judges and members of national human rights institutions.
UN Human Rights Council Resolution 5/1 at para. 40; the UN's pursuance of gender balance being re-emphasised through the establishment of UN Women in July 2010.
Ibid., at para. 42.
Comprising representatives of each regional group within the HRC aided by the OHCHR – Ibid., at para. 49.
Ibid., at 52.
Ibid., at 53.
Sudan, Somalia, Burundi.
Haiti.
Cambodia, DPR Korea, Myanmar and Palestinian territories occupied since 1967.
Nepalese, Indonesian, Bangladeshi.
Algerian and Tanzanian.
French and American (US counts in this bloc for voting).
Argentinian.
Variations within each group, some predominantly male, others predominantly female. Overall, 11 male and nine females serve on the working groups.
Adequate housing (Brazil); extreme poverty (Chile); opinion and expression (Guatemala); independence of judges and lawyers (Brazil); and migrants (Mexico).
Sale of children (Morocco); foreign debt (Zambia); arbitrary executions (South Africa); human rights defenders (Uganda); racism (Kenya); trafficking (Nigeria) and violence against women (South Africa).
Cultural rights (Pakistan); education (India); health (India); and international solidarity (Indonesia).
Slavery (Armenia); and toxic and dangerous waste (Romania).
Food (Belgium); freedom of religion (Germany); indigenous peoples (US); internally displaced persons (Switzerland); minority issues (US); terrorism (Finland); torture (Austria); and water (Portugal); and transnational corporations (US).
One female appointee was lost in June 2010.
Suggestions that the OHCHR appoints mandate-holders were unsuccessful – see Miko Lempinen and Martin Scheinin, ‘The New Human Rights Council: The First Two Years’, (workshop report, European University Institute, Instituto Affari Internazionali and Institute for Human Rights at Abo Akademi University, November 2007), 19.
US Supreme Court; England and Wales until Judicial Appointments Commission (Constitutional Reform Act 2005).
UN Human Rights Council Resolution 5/1 IIB at para. 60.
Ibid., at para. 45.
Ibid., at para. 44.
See, e.g., draft resolution tabled by China, Cuba (on behalf of the Non-Aligned Movement) and the Russian Federation, UN Doc. A/HRC/11/L.8 stipulating that rapporteurs cannot inter alia challenge or question their mandates.
Regulations Governing the Status, Basic Rights and Duties of Officials other than Secretariat Officials, and Experts on Mission, UN Doc. ST/SGB/2002/9.
UN Human Rights Council Resolution 5/2, Annexe, at Article 3 (c).
M. Abraham, Building the New Human Rights Council: Outcome and Analysis of the Institution-building Year (Geneva: Friedrich Ebert Stiftung, 2007) (Dialogue on Globalization Occasional paper no. 33), 31–2.
25 June 2008 internal advisory NGOs, Ten Principles to Guide a Successful Outcome of the Review of the UN Human Rights Council as it Relates to the Special Procedures, available online from Human Rights Council homepage: http://www2.ohchr.org/english/bodies/hrcouncil/HRC_review.htm (accessed October 5, 2010).
Hurst Hannum, ‘Reforming the Special Procedures and Mechanisms of the Commission on Human Rights’, Human Rights Law Review 7, no. 1 (2007): 73–92 at 81.
Ibid., at 82.
Arguably monitored from shortly after Economic and Security Council Resolution 1235 (XLII), see also GA Res. 3092A, B (XXVII) 1973.
Lempinen and Scheinin, ‘The New Human Rights Council’, 19.
Ibid.
Human Rights Council Resolution 11/10 (2009), renewed 2010 (decision 14/117) until the 15th session of the Council.
Terms taken from Manual of Operations of the Special Procedures of the Human Rights Council 2008, para. 4.
OHCHR compilation of UN documents, UN Human Rights Council Resolution 5/1 at para. 15(b).
Jeroen Gutter, ‘Special Procedures and the Human Rights Council: Achievements and Challenges Ahead’, Human Rights Law Review 7, no. 1 (2007): 93–107.
See Manual of Operations of the Special Procedures of the Human Rights Council, at para. 5.
Christian Tomuschat, Human Rights – between Idealism and Realism (Oxford: OUP, 2003), 124.
For an early tabular representation of this, see Lempinen, Challenges.
Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion of the International Court of Justice, 29 April 1999. Opinion sought in respect of Dato' Param Cumaraswamy, a Malaysian national serving as special rapporteur on the independence of judges and lawyers.
UN Human Rights Council Resolution 5/2.
UN Doc. ST/SGB/2002/9.
Bertrand Ramcharan, The Protection Roles of UN Human Rights Special Procedures (Leiden: Martinus Nijhoff, 2009), at 29.
Post of high commissioner created by General Assembly Resolution 48/141, 20 December 1993.
Lempinen and Scheinin, ‘The New Human Rights Council’.
Rodley, ‘Complementarity or Competition?’ and ‘The United Nations Human Rights Council’.
Ramcharan, The Protection Roles, 28.
See GA Res. 61/16 (2006).
Kofi Annan, In Larger Freedom (New York: United Nations, 2005), at http://www.un.org/largerfreedom (accessed 5 October 2010), para. 183.
Nifosi, The UN Special Procedures.
The purported visit to the Guantanamo Bay detention facilities is an example.
Secretary-General's message to the Third Session of the Human Rights Council [delivered by Mrs Louise Arbour, high commissioner for human rights] 2006.