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Abstract
This article evaluates the role of United Nations special rapporteurs through a systematic study of the perspectives of mandate-holders. Qualitative interviews with current and former rapporteurs and their assistants reveal that three central tensions inherent in the rapporteur's task give the rapporteur room for individual experimentation. First, the tension between UN affiliation and independent status allows the rapporteur to determine his/her orientation toward the UN. Secondly, the tension between competing obligations to treat sovereign states as partners and as adversaries forces the rapporteur to develop innovative strategies to address national sovereignty. Thirdly, the tension between the universal scope of thematic mandates and the impossibility of realising that scope enables the rapporteur to travel between specific contexts and international norms. The unparalleled autonomy afforded by the position enables rapporteurs to define rights in real time, responding to situations as they unfold rather than after the fact. For that reason, any reform of the special procedures system should preserve the role's unique features. Rather than expend political will on ambitious structural changes, reform advocates should focus on increasing funding, resources, and pressure on states to cooperate.
Acknowledgements
This article benefited from editorial comments from Theodore Macdonald, support from the Committee on Degrees in Social Studies at Harvard University, cooperation from OHCHR staff and other interviewees, and research grants from the Harvard College Research Program and Harvard University's Edmond J. Safra Center for Ethics and Weatherhead Center for International Affairs.
Notes
Sir Nigel Rodley (special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, 1993–2001), interview by author, 19 August 2009, Colchester, United Kingdom, digital recording.
Official 1 (high-level official, Office of the United Nations High Commissioner for Human Rights), interview by author, 20 August 2009, Geneva, Switzerland, digital recording. I use the terms mandate-holder, special rapporteur, and rapporteur interchangeably, not to the exclusion of the other kinds of mandate-holders but merely as shorthand. All statements about rapporteurs should be understood to apply to all special procedures mandate-holders unless the context suggests otherwise.
OHCHR, ‘Special Procedures of the Human Rights Council’, http://www2.ohchr.org/english/bodies/chr/special/index.htm (accessed March 9, 2010).
When individuals submit complaints of human rights violations to most international and regional human rights mechanisms, such as the Committee against Torture or the European Court of Human Rights, they must include proof that they have exhausted all possible domestic remedies – in other words, all legal avenues for justice or compensation in their country of origin – before the external mechanism will consider their case, with the exception of cases in which remedies are unavailable, ineffective, or unreasonably delayed. The principle of exhaustion of domestic remedies in international law stems from the notion that sovereign states have primary responsibility to protect the rights of their own citizens. Special procedures mandate-holders, however, will take up an individual's case even in the absence of proof that the individual has exhausted domestic remedies.
See Patrick James Flood, The Effectiveness of UN Human Rights Institutions (Westport, CN: Praeger, 1998); Jeroen Gutter, Thematic Procedures of the United Nations Commission on Human Rights and International Law: In Search of a Sense of Community (Antwerpen: Intersentia, 2006); Miko Lempinen, Challenges Facing the System of Special Procedures of the United Nations Commission on Human Rights (Turku/Åbo, Finland: Institute for Human Rights, Abo Akademi University, 2001); Ingrid Nifosi, The UN Special Procedures in the Field of Human Rights (Antwerpen: Holmes Beach: Intersentia; Gaunt, 2005); Elvira Domínguez Redondo, Los Procedimientos Públicos Especiales De La Comisión De Derechos Humanos De Naciones Unidas (Valencia: Tirant lo Blanch, 2005); and Bertrand G. Ramcharan, The Protection Roles of UN Human Rights Special Procedures (Leiden; Boston: Martinus Nijhoff Publishers, 2008).
This work is adapted from the author's senior honours thesis. See Joanna Naples-Mitchell, ‘Defining Rights in Real Time: The UN Special Procedures’ Contribution to the International Human Rights System' (Senior Thesis, Harvard College, March 2010).
The Brookings Institution's Foreign Policy Program released the first such comprehensive study of the impact of special procedures in October 2010. See Ted Piccone, Catalysts for Rights: The Unique Contribution of the UN's Independent Experts on Human Rights (Washington, DC: The Brookings Institution, 2010).
Assistant 1 (human rights officer, OHCHR), interview by author, 20 August 2009, Geneva, Switzerland, digital recording.
Ibid.
Radhika Coomaraswamy, (special rapporteur on violence against women, its causes and consequences, 1994–2003), interview by author, 10 December 2009, telephone, digital recording.
Rodley, interview by author.
Manfred Nowak (special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, 2004–2010), interview by author, 18 October 2009, telephone, digital recording.
Ibid.
Assistant 2 (human rights officer, OHCHR), interview by author, 11 August 2009, Geneva, Switzerland, digital recording.
Ibid.
Assistant 3 (human rights officer, OHCHR), interview by author, 10 August 2009, Geneva, Switzerland, digital recording.
Ibid.
John Dugard (special rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, 2001–2008), interview by author, 6 August 2009, Geneva, Switzerland, digital recording.
Ibid.
Richard Falk (special rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, 2008–present), interview by author, 24 October 2009, Princeton, NJ, USA, digital recording.
Ibid.
Paulo Sérgio Pinheiro (special rapporteur on the situation of human rights in Burundi, 1995–1998; special rapporteur on the situation of human rights in Myanmar, 2000–2008), interview by author, 5 November 2009, telephone, digital recording.
Ibid.
Rodley, interview by author.
Ibid.
Falk, interview by author, 24 October 2009, Princeton, NJ, USA, digital recording.
Ibid.
Dugard, interview by author.
Ibid.
This position is not to be confused with the special representatives of the secretary-general and representatives of the secretary-general who discharge special procedures mandates. Those individuals receive support from both human rights organs in Geneva and political organs in New York.
Coomaraswamy, interview by author.
Ibid.
Assistant 6 (human rights officer, OHCHR), interview by author, 14 August 2009, Geneva, Switzerland, digital recording.
Assistant 3, interview by author.
Ibid.
Bacre Waly Ndiaye (special rapporteur on extrajudicial, summary or arbitrary executions, 1992–1998; director of the Human Rights Council and Special Procedures Division, OHCHR), interview by author, 21 August 2009, telephone, digital recording.
Rodley, interview by author.
Ibid.
Ibid.
Nowak, interview by author, 18 October 2009, telephone, digital recording.
Ibid.
Falk, interview by author.
Rodley, interview by author.
Assistant 2, interview by author; assistant 3, interview by author; assistant 5 (Human Rights Officer, OHCHR), interview by author, 6 August 2009, Geneva, Switzerland, digital recording.
Assistant 6, interview by author.
Assistant 1, interview by author.
Assistant 5, interview by author.
Ibid.
OHCHR, ‘Standing Invitations’, http://www2.ohchr.org/english/bodies/chr/special/invitations.htm (accessed October 20, 2010).
Nowak, interview by author.
Assistant 2, interview by author.
Falk, interview by author.
Ibid.
Rodley, interview by author.
Ibid.
Ibid.
Nowak, interview by author.
Official 1, interview by author.
Ibid.
Ibid.
Ibid.
Senior staff member (Prominent NGO in Geneva), interview by author, 21 August 2009, Geneva, Switzerland, digital recording.
Ibid.
Assistant 1, interview by author.
Assistant 4 (human rights officer, Office of the High Commissioner for Human Right), interview by author, 12 August 2009, Geneva, Switzerland, digital recording.
Ibid.
Coomaraswamy, interview by author.
Ibid.
Pinheiro, interview by author.
Ibid.
Ibid.
Dugard, interview by author.
Ibid.
Ibid.
Ibid.
Falk, interview by author.
Nowak, interview by author.
Assistant 5, interview by author.
Christophe Golay (head of the Research Unit on the Right to Food supporting the special rapporteur on the right to food, Jean Ziegler, 2001–2008), interview by author, 6 November 2009, telephone, digital recording.
Ibid.
Assistant 6, interview by author.
Ndiaye, interview by author.
Ibid.
Assistant 5, interview by author.
Ibid.
Golay, interview by author.
Ibid.
Assistant 3, interview by author.
Assistant 5, interview by author.
Assistant 2, interview by author.
Assistant 3, interview by author.
Ibid.
Coomaraswamy, interview by author.
Golay, interview by author.
Ibid.
Coomaraswamy, interview by author. In international law, jus cogens norms include the right to life, freedom from torture, and other peremptory norms, i.e., norms from which no derogation is permitted.
Nowak, interview by author, 18 October 2009, telephone, digital recording.
Ibid.
Ibid.
Ndiaye, interview by author.
Official 1, interview by author.
Ibid.
Rodley, interview by author.
Ibid.
Nigel S. Rodley, ‘United Nations Human Rights Treaty Bodies and Special Procedures of the Commission on Human Rights: Complementarity Or Competition?’, Human Rights Quarterly 25, no. 4 (2003): 882–908; Rodley, interview by author; Nowak, interview by author.
Rodley, interview by author.
Ndiaye, interview by author.
Ibid.
Rodley, interview by author.
Nowak, interview by author.
Ibid.
Ndiaye, interview by author.
Dugard, interview by author.
Assistant 6, interview by author.
Assistant 2, interview by author; assistant 5, interview by author.
Rodley, interview by author.
Ibid.
Ibid.