![Sample our Politics & International Relations journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5947/TOC-Subject-Sample-2021-Politics-International-Relations.jpg"})
Abstract
As independent experts within the UN system, special procedures play a unique role in calling attention to emerging and chronic human rights problems and calling on states to improve their performance in accordance with international law. Yet there is no empirical study documenting what kind of impact they have at the national level. Based on an exhaustive review of nearly 9000 communications by 17 thematic mandates to 174 states, as well as field research and interviews with over 200 experts, our research team concluded that this mechanism plays a direct, positive but uneven role in influencing government behaviour. Lack of state cooperation with special procedures represents the chief obstacle to their work. They are also hobbled by a host of other challenges, including inadequate resources and training, insufficient understanding of the local context for their work, and the lack of a systematic process for following up their recommendations. Despite these obstacles, the special procedures mechanism represents one of the most effective tools of the international human rights system, but needs further strengthening and support.
Acknowledgements
The author would like to extend deep gratitude to Emily Alinikoff, senior research assistant, for her contribution to the research, data analysis and presentation of the main findings and recommendations, and for coordinating a team of bright and committed graduate students and young lawyers. He is also indebted to the members of the project's Experts Advisory Group – Roberta Cohen, Morton Halperin, Peggy Hicks, Hina Jilani, Miloon Kothari, Juan Mendez, Michael O'Flaherty, Paulo Pinheiro, Bertrand Ramcharan, Andrea Rossi, Nancy Rubin, Thomas Weiss, David Weissbrodt and Rich Williamson – for their advice and endorsement of the recommendations.
The article is a revised and redacted version of a report published by the Brookings Institution, Catalysts for Rights: The Unique Contribution of the UN's Independent Experts on Human Rights (Washington: Brookings Institution, 2010).
Notes
Under criteria established by the Human Rights Council in 2007, these experts are selected based on their expertise, experience in the field of human rights, independence, impartiality, personal integrity and objectivity. United Nations Human Rights Council, Resolution 5/1 Institution-building of the United Nations Human Rights Council, 2007, Section II. A, 18. Currently there are 31 thematic mandates and 8 country-specific mandates.
‘The Special Procedures are the crown jewel of the system. They, together with the high commissioner and her staff, provide the independent expertise and judgment which is essential to effective human rights protection. They must not be politicized, or subjected to governmental control.’ UN secretary-general Kofi Annan, Speech at the Time Warner Center, New York, 8 December 2006, http://www.pfcmc.com/News/ossg/sg/stories/statments_full.asp?statID=39 (accessed September 1, 2010).
United Nations Human Rights Council, Resolution 5/2 Code of Conduct for Special Procedures Mandate Holders of the Human Rights Council, 2007, para. 1.
These replies are summarised by OHCHR staff and incorporated into the public reports of the mandate-holders to the Human Rights Council.
Government responses to special procedure communications were assigned one of the following five categories: No Response (NR), Immaterial Response (IM), Violation Rejected Without Substantiation (VR), Responsive but Incomplete (RI), or Steps Taken to Address Allegations (ST). These categories were slightly altered for assessing the Working Groups due to their different working methods.
United Nations Human Rights Council, Resolution 5/2, Code of Conduct for Special Procedures Mandate Holders of the Human Rights Council, Articles 11–13.
These included a Wilton Park conference on the HRC five-year review in January 2010, a symposium hosted by New England College of Law in March 2010, and a research workshop organised by the Centre for International Governance at the University of Leeds in June 2010.
A list of current mandate-holders can be accessed at http://www2.ohchr.org/english/bodies/chr/special/index.htm (accessed September 1, 2010). Office of the High Commissioner for Human Rights Annual Report, 2000 refers to 35 mandates, of which 21 were thematic and 14 were country/territory specific. Available from: http://www.ohchr.org/Documents/AboutUs/annualreport2000.pdf, p. 147 (accessed September 1, 2010).
In June 2007, the Human Rights Council agreed upon 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 toward greater transparency and consultation with multiple stakeholders. Candidates may be nominated by governments, nongovernmental organisations, other UN bodies or individuals. 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 representatives 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 council for final approval. United Nations Human Rights Council, Resolution 5/1, Institution-building of the United Nations Human Rights Council, paras 39–53. While 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 continue to demand that their favourite candidates be chosen, as was seen most recently in the appointment of certain mandate-holders in June 2010.
United Nations, Charter of the United Nations (New York: United Nations, 1945), Chapter IX: International Economic and Social Cooperation, Articles 55, 56.
United Nations Human Rights Council, Resolution 5/2 Code of Conduct for Special Procedures Mandate Holders of the Human Rights Council, operative para. 1.
United Nations General Assembly, Resolution A/RES/60/251 Human Rights Council (New York: United Nations General Assembly, 2006), para. 9.
Despite repeated requests, OHCHR was unable to provide a figure of how many of its staff support the special procedures, including the number directly assigned to the Special Procedures Branch.
United Nations Office of the High Commissioner for Human Rights Annual Report 2009, 18–19, http://www.ohchr.org/Documents/Publications/I_OHCHR_Rep_2009_complete_final.pdf (accessed September 2, 2010).
One explanation for the increase in country visits since 2006 is the creation of three new mandates on slavery, water and cultural rights. The Special Procedures Facts and Figures from 2006, 2007, 2008, and 2009 provide annual breakdowns of country visits. For 2005 figures, see the 2005 OHCHR Annual Report.
Special Procedures Facts and Figures 2009, 14, http://www2.ohchr.org/english/bodies/chr/special/docs/Facts_Figures2009.pdf (accessed September 2, 2010).
Special Procedures Facts and Figures 2007, 16, http://www2.ohchr.org/english/bodies/chr/special/docs/SP2007FactsFigures.pdf (accessed September 2, 2010); Facts and Figures 2007, 10, http://www2.ohchr.org/english/bodies/chr/special/docs/SP2007FactsFigures.pdf (accessed September 2, 2010); Facts and Figures 2008, 12, http://www2.ohchr.org/english/bodies/chr/special/docs/Facts_Figures2008.pdf (accessed September 2, 2010).
The Asia Group received 11 visits in 1999 and 13 in 2009; WEOG received 7 visits in 1999 and 9 in 2009; EEG received 7 in 1999 and 8 in 2009.
The 16 states and territories that have received more than 10 visits since 1998 are Sudan, Cambodia, Colombia, Guatemala, Occupied Palestinian Territories, Democratic Republic of Congo, Haiti, Brazil, Mexico, Afghanistan, Burundi, the United States of America, Turkey, Ecuador, United Kingdom and Indonesia.
The Manual of Operations of the Special Procedures, 2008, paras 71–2, http://www2.ohchr.org/english/bodies/chr/special/docs/Manual_August_FINAL_2008.doc (accessed September 10, 2010).
Some rapporteurs reported a higher quality, more substantive interactive dialogue in New York.
Draft reports generally are submitted to the government four to six weeks before publication to allow it to correct any misunderstandings or factual inaccuracies, according to the Manual of Procedures, para. 74. See also Code of Conduct, Art. 13(c) (‘mandate-holders shall ensure that the concerned government authorities are the first recipients of their conclusions and recommendations concerning this State and given adequate time to respond…’).
United Nations Commission on Human Rights, Resolution 2004/76, Human Rights and Special Procedures (Geneva: United Nations Commission on Human Rights, 2004), para. 2(b), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G04/162/00/PDF/G0416200.pdf?OpenElement (accessed September 4, 2010).
Of the top 10 most visited states – Brazil, Cambodia, Colombia, Democratic Republic of the Congo, Guatemala, Haiti, Israel/Occupied Palestinian Territories, Mexico, Sudan and the United States –four have issued standing invitations (Brazil, Colombia, Guatemala and Mexico).
Eight of these (11 per cent) have not received a request for a visit. These eight states are Austria, Cyprus, Finland, Iceland, Luxembourg, Monaco, Montenegro, and San Marino.
Syria received its first SP visit (right to food) in September 2010. Namibia received its request in 2010. Another 25 states that have not issued a standing invitation have never received a request for a visit.
For the purpose of this study, ‘pending visits’ is defined as requested visits and visits that have been agreed upon in principle but remained unscheduled.
The Manual of Operations of the Special Procedures, 2008, Annex III, http://www2.ohchr.org/english/bodies/chr/special/docs/Manual_August_FINAL_2008.doc (accessed September 10, 2010). Protection of witnesses and their relatives is of growing concern due to notorious attacks against them, most notably the murder of two human rights defenders in Kenya in 2009 after they met with the special rapporteur on summary, extrajudicial or arbitrary detention.
Nigel Rodley, Interview, in Amy D. Bernstein, ‘On Negotiating with Torturers’, in Torture: Does it Make us Safe? Is it ever OK?, ed. Kenneth Roth and Minky Worden (New York: New Press and Human Rights Watch, 2005), 106–17.
Jorge Bustamante, Report of the Special Rapporteur on the Human Rights of Migrants, Mission to Indonesia, UN Doc. A/HRC/4/24/Add.3, 2007, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G07/112/04/PDF/G0711204.pdf?OpenElement (accessed September 4, 2010). According to various sources, employers may no longer hold a migrant's passport; other provisions, like improved working conditions, remain under discussion between the two governments.
One of the journalists' relatives publicly credited the rapporteur for his freedom. Ros Rada, ‘Letter to the Editor’, Cambodia Daily, January 29, 2010. According to the special rapporteur, a number of human rights organisations, both national and international, campaigning for their release deserve some credit for this outcome.
Cherif Bassiouni, Report of the Independent Expert of the Commission on Human Rights on the Situation of Human Rights in Afghanistan, UN Doc. A/59/370, 2004, 5 and 20.
Cherif Bassiouni served as independent expert on human rights in Afghanistan from 2004–2006, presenting two reports to the Human Rights Commission and General Assembly: A/59/370 and E/CN.4/2005/122. Examples of impact found in the reports were augmented by an interview with the former mandate-holder on 12 March 2010.
From 1992–2004, the official name of the IDP mandate was the representative of the UN secretary-general on internally displaced persons. In 2004, the official name of the mandate became the representative of the UN secretary-general on the human rights of internally displaced persons. In June 2010, the title of the mandate was changed to special rapporteur on the human rights of internally displaced persons. The titles are used interchangeably throughout the article.
Hacettepe University's Institute of Populations Studies conducts the Turkey migration and Internally Displaced Persons Survey annually and the questionnaire for the survey was ‘prepared in guidance of the United Nations’ Internally Displaced Persons Guiding Principles'. For more information see http://www.hips.hacettepe.edu.tr/eng/press_release.pdf (accessed October 1, 2010).
Philip Alston, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Mission to Colombia, UN Doc. A/HRC/14/24/Add.2.
Many government and NGO representatives interviewed over the course of the project confirmed this impact of the visit.
The Manual of Procedures, para. 98, states that SP recommendations should be SMART: specific, measurable, attainable, realistic and time-bound.
The seminal case, decided in favour of the special procedures in 1999, involved a $112 million claim of defamation filed by the government of Malaysia against Param Cumaraswamy, the special rapporteur for independence of judges and lawyers. Eventually, the International Court of Justice ruled that UN special rapporteurs must be regarded as ‘experts on mission’ and accorded certain privileges and immunities such as exemption from defamation charges. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion of 29 April 1999, International Court of Justice, http://www.icj-cij.org/docket/files/100/7619.pdf (accessed September 10, 2010). To review the ICJ press release, see http://www.icj-cij.org/docket/index.php?pr=154&code=numa&p1=3&p2=1&p3=6&case=100&k=9 (accessed September 10, 2010).
The Special Procedures on Internally Displaced Persons and on Indigenous Peoples have conducted the most follow-up visits. The special procedures on torture, extrajudicial summary and arbitrary executions, and housing make a point of sending follow-up questionnaires to countries they or their predecessors have visited and publishing results as follow-up reports.
For a full list, see the OHCHR compilation of country visits located in the Appendix accessible at http://www2.ohchr.org/english/bodies/chr/special/countryvisitsa-e.htm#burundi (accessed September 10, 2010).
United Nations Human Rights Council Code of Conduct, Article 9 (d) and (e).
OHCHR 2009 Report, Activities and Results, 12, http://www.ohchr.org/Documents/Publications/I_OHCHR_Rep_2009_complete_final.pdf (accessed September 14, 2010).
These figures are higher than those of OHCHR because the research team counted all communications recorded by each mandate in their annual reports from 2004–2008, irrespective of whether or not the communication was recorded by more than one mandate-holder. Non-state recipients of communications from 2004–2008 were the World Bank, Syngenta, ITM Angola, the Global Fund, Coca Cola Company, Asian Development Bank, Agence Francaise de Developement, Newmont Ghana Gold Limited, the Bill and Melinda Gates Foundation, and the UN Mission in Kosovo and were sent by the Special Procedures on Food, Health, Housing, Sale of Children, Toxic Waste, and Violence Against Women. This trend of examining the effects non-state actors have on respect for human rights is new and deserves further study.
The Africa and Asia Groups are each composed of 53 member states; GRULAC has 33 member states; WEOG is made up of 29 member states, including for this study's purpose Israel and the United States; and EEG maintains 23.
When non-state actors are considered when analysing responsiveness, they carry the lowest rate of no or immaterial responses with 42.8 per cent and the highest rate of responsive communications with 57.14 per cent. In no case did a non-state actor unsubstantially or categorically deny the allegation.
The Community of Democracies is the only global intergovernmental forum of democratic governments aimed at fostering cooperation to strengthen and support democratic development. The convening group that organises their meetings invites governments to biennial ministerial meetings based on a set of criteria drawn from the Universal Declaration of Human Rights and other international standards. For more information on the Community of Democracies, see http://www.community-democracies.org/index.php?limitstart=3 (accessed September 2, 2010). For more information on its invitations process, see the Statement and Recommendations on Government Invitations issued by the Community of Democracies International Advisory Committee for the Lisbon Ministerial, http://www.demcoalition.org/site09-2008/pdf/FINAL%20IAC%20Brochure%20Lisbon.pdf (accessed September 2, 2010).
All examples are taken directly from communications documents annexed to annual reports submitted by special procedures to the Human Rights Council or Special Procedures Bulletins available on the OHCHR website.
Report of the Special Representative of the Secretary-General on Human Rights Defenders, Summary of Cases Transmitted to Governments and Replies Received, UN Doc. E/CN.4/2005/101/Add/1, 16 March 2005, 16–17.
Report of the Special Representative of the Secretary-General on Human Rights Defenders, Summary of Cases Transmitted to Governments and Replies Received, UN Doc. AHRC/7/28/Add.1, 5 March 2008, 209.
Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Summary of Cases Transmitted to Governments and Replies Received, UN Doc. A/HRC/11/4/Add.1, 27 May 2009, 60–1.
Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, UN Doc. A/HRC/11/4/Add.1, 140–1.
Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Summary of Information, Including Cases Transmitted to Governments and Replies Received, UN Doc. E/CN.4/2005/62/Add.1, 30 March 2005, 123–4.
Since 2006, there have been four joint visits to states in three regions. For a full list of country visits conducted by special procedures, see: http://www2.ohchr.org/english/bodies/chr/special/countryvisitsa-e.htm (accessed September 2, 2010).
Facts and Figures 2005, 2006, 2007, 2008, 2009.
Differently than OHCHR's count, our figures show that joint communications have remained at a steady 70 per cent since 2004 with a spike to 83 per cent in 2009. When analysing joint communications sent from 2004–2008, the research team counted the total number of communications recorded by special procedures in their annual communications documents, irrespective of whether or not the joint communication appeared in more than one report. While special procedures do send the majority of communications with at least one other rapporteur, these are not necessarily recorded identically in the official documentation made available by OHCHR – different dates may be recorded, records may not include an identical list of all mandate-holders collaborating, and the focus of the summarised allegation and government response may differ from communication to communication depending on the focus of the mandate-holder at hand. Therefore, since many joint communications were not recorded as pure duplicates, we deemed it necessary to account for all communications logged by special procedures during this period. Similarly, state responses were counted as they were recorded in special procedure communications documents.
Of all responses to joint communications, 17 per cent were scored in the responsive but incomplete, and steps taken categories while 21 per cent of solo communications were in these categories. Similarly, 23 per cent of joint communications received a violation rejected score versus only 15 per cent of solo communications. Responses scored as immaterial were the same for both types of communications.
See Manual of Procedures, paras 109–14.
Coordination Committee of Special Procedures, Internal Advisory Procedure to Review Practices and Working Methods, 2008, http://www2.ohchr.org/english/bodies/chr/special/annual_meetings/docs/InternalAdvisoryProcedure.doc (accessed September 10, 2010).
United Nations Office of the High Commissioner for Human Rights, Annual Report on Activities and Results, 2009, 19,http://www.ohchr.org/Documents/Publications/I_OHCHR_Rep_2009_complete_final.pdf (accessed September 10, 2010). Unfortunately, the OHCHR decided against providing us with the precise amount spent on special procedures, thus costs were estimated based on line items that make specific reference to the system.
OHCHR Annual Report 2009, Financial Statements, 180–99.
OHCHR Annual Report 2009, 196. The 11 states are Spain, Norway, Germany, United Kingdom, Canada, Finland, Ireland, Russian Federation, Belgium, Japan and Austria.