21 Special procedures; the mandates of Special Rapporteurs, Representatives, Experts and Working group

Prof. Gudmundur Eiriksson

Charter-Based Procedures:

Human Rights Council Special Procedures

Introduction

The Special Procedures of the Human Rights Council are independent human rights experts with mandates to report and advise on human rights from a thematic or country-specific perspective. The system of Special Procedures is a central element of the United Nations human rights machinery and covers all human rights: civil, cultural, economic, political, and social. In the context of the 2011 review of its work and functioning, the Human Rights Council reaffirmed the obligation of States to cooperate with the Special Procedures, and the integrity and independence of Special Procedures. It also reaffirmed the principles of cooperation, transparency and accountability and the role of the system of Special Procedures in enhancing the capacity of the Human Rights Council to address human rights situations. Member States confirmed their strong opposition to reprisals against persons cooperating with the United Nations and its human rights mechanism and representatives.

The Council further recognized the importance of ensuring transparent, adequate and equitable funding to support all Special Procedures according to their specific needs (see HRC resolution 16/21).

History of the system

In the early days of the United Nations, the Commission on Human Rights – the predecessor of the Human Rights Council – focused on elaborating human rights standards. The Economic and Social Council had passed a resolution stating that the Commission had “no power to take any action in regard to any complaints concerning human rights” (ECOSOC Resolution 75 (V) (1947)). However, in 1965, the Commission on Human Rights was faced with a number of individual petitions from South Africa and came under considerable pressure to deal with them. As a result, in 1967, the Commission departed from previous practice and established an ad-hoc working group of experts to investigate the situation of human rights in Southern Africa (CHR resolution 2 (XXIII)). The ad-hoc working group can be considered as the first Special Procedure of the Commission on Human Rights. Following the 1973 coup in Chile against President Allende by General Augusto Pinochet, the Commission established an ad-hoc working group in 1975 to inquire into the situation of human rights in Chile. In 1979, this working group was replaced by a special rapporteur and two experts to study the fate of the disappeared in Chile. This led to the establishment of the first thematic Special Procedure in 1980: the Working Group on Enforced Disappearances to deal with the question of enforced disappearances throughout the world (CHR resolution 20 (XXXVI)). Ten years later, in 1990, there were six thematic mandates covering enforced disappearances, extrajudicial, summary or arbitrary executions, religious intolerance, mercenaries, torture and sale of children. Since then, many new mandates have been established to deal with human rights challenges in various parts of the world. They now cover all regions and rights: civil, cultural, economic, political, and social.

Special Rapporteurs, Independent Experts and Working Groups

Special procedures are either an individual (called “Special Rapporteur” or “Independent Expert”) or a working group composed of five members, one from each of the five United Nations regional groupings: Africa, Asia-Pacific States, Latin America and the Caribbean, Eastern Europe and Western Europe and Other States. The Special Rapporteurs, Independent Experts and members of the Working Groups are appointed by the Human Rights Council and serve in their personal capacities. They undertake to uphold independence, efficiency, competence and integrity through probity, impartiality, honesty and good faith. They are not United Nations staff members and do not receive financial remuneration. The independent status of the mandate-holders is crucial for them to be able to fulfil their functions in all impartiality. A mandate-holder’s tenure in a given function, whether it is a thematic or country mandate, is limited to a maximum of six years.

With the support of the Office of the United Nations High Commissioner for Human Rights (OHCHR), Special Procedures undertake country visits; act on individual cases of alleged violations and concerns of a broader, structural nature by sending communications to States; conduct thematic studies and convene expert consultations, contributing to the development of international human rights standards; engage in advocacy and raise public awareness; and provide advice for technical cooperation. Special Procedures report annually to the Human Rights Council and the majority of the mandates also report to the General Assembly.

As of August 2015, there are 41 thematic and 14 country mandates:

Thematic Mandates

Country visits

CommunicationsAt the invitation of States, mandate-holders carry out country visits to analyse the human rights situation at the national level. Some countries have issued “standing invitations” to the Special Procedures, which means that they are prepared to receive a visit from any thematic mandate- holder. As of 1 January 2015, 109 Member States and one non-Member Observer State have extended a standing invitation to thematic special procedures. At the end of their visits, special procedures’ mandate-holders engage in dialogue with the State on their findings and recommendations and present a report to the Human Rights Council.

Most Special Procedures receive information on specific allegations of human rights violations and send communications (urgent appeals and other letters) to States, and occasionally to non- State actors, asking for clarification and action. Mandate-holders may send letters to States seeking information about legal, policy or structural developments, submitting observations, or following-up on recommendations.

The Annual Facts and Figures provides an overview of total communications sent and related information. Communications sent and the responses received are reported at each regular session to the Human Rights Council.

Other activities

Either at the request of the Human Rights Council or at the initiative of the mandate-holders, special procedures prepare thematic studies, develop human rights standards and guidelines, participate in expert consultations, seminars and conferences, organize panels during the sessions of the Human Rights Council, organize “working visits”, i.e. in-country missions that are not fact-finding but a mix between technical assistance, mediation and the development of best practices, and raise public awareness about specific human rights situations and phenomena attesting threats to and violations of human rights through public statements and interaction with a wide variety of partners. Special Procedures mandate-holders frequently engage with a number of intergovernmental bodies on various topics related to their mandates. Examples in recent years include participation by the Special Rapporteur on the human rights of internally displaced persons and the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression in meetings of the United Nations Security Council.

Code of Conduct and working methods of the special procedures

The Code of Conduct adopted by the Council in 2007 and the Manual of Operations adopted by Special Procedures mandate-holders during their Annual Meeting in 2008 provide guidelines on the working methods of Special Procedures. Mandate-holders also established an Internal Advisory Procedure to review practices and working methods, which allows any stakeholder to bring issues relating to working methods and conduct to the attention of the Coordination Committee. The procedure was devised to enhance the independence and effectiveness of Special Procedures and cooperation by States, and to contribute to self-regulation of the special procedures system and individual mandate holders.

Excerpts from the Code of Conduct for Special Procedures Mandate-Holders of the Human Rights Council

Article 3 – General principles of conduct

Mandate-holders are independent United Nations experts. While discharging their mandate, they shall:

(a) Act in an independent capacity, and exercise their functions in accordance with their mandate, through a professional, impartial assessment of facts based on internationally recognized human rights standards, and free from any kind of extraneous influence, incitement, pressure, threat or interference, either direct or indirect, on the part of any party, whether stakeholder or not, for any reason whatsoever, the notion of independence being linked to the status of mandate-holders, and to their freedom to assess the human rights questions that they are called upon to examine under their mandate;

…

(d) Focus exclusively on the implementation of their mandate, constantly keeping in mind the fundamental obligations of truthfulness, loyalty and independence pertaining to their mandate;

(e) Uphold the highest standards of efficiency, competence and integrity, meaning, in particular, though not exclusively, probity, impartiality, equity, honesty and good faith;

(f) Neither seek nor accept instructions from any Government, individual, governmental or non-governmental organization or pressure group whatsoever;

…

Article 6 – Prerogatives

Without prejudice to prerogatives for which provision is made as part of their mandate, the mandate-holders shall:

(a) Always seek to establish the facts, based on objective, reliable information emanating from relevant credible sources, that they have duly cross-checked to the best extent possible;

(b) Take into account in a comprehensive and timely manner, in particular information provided by the State concerned on situations relevant to their mandate;

standards relevant to their mandate, and of international conventions to which the State concerned is a party;

…

Article 8 – Sources of information

In their information-gathering activities the mandate-holders shall:

(a) Be guided by the principles of discretion, transparency, impartiality, and even-handedness;

(b) Preserve the confidentiality of sources of testimonies if their divulgation could cause harm to individuals involved;

(c) Rely on objective and dependable facts based on evidentiary standards that are appropriate to the non-judicial character of the reports and conclusions they are called upon to draw up;

(d) Give representatives of the concerned State the opportunity of commenting on mandate-holders’ assessment and of responding to the allegations made against this State, and annex the State’s written summary responses to their

…

Article 10 – Urgent appeals

Mandate-holders may resort to urgent appeals in cases where the alleged violations are time-sensitive in terms of involving loss of life, life-threatening situations or either imminent or ongoing damage of a very grave nature to victims that cannot be addressed in a timely manner by the procedure under article 9 of the present Code.

…

Article 12 – Private opinions and the public nature of the mandate

Mandate-holders shall:

(a) Bear in mind the need to ensure that their personal political opinions are without prejudice to the execution of their mission, and base their conclusions and recommendations on objective assessments of human rights situations;

(b) In implementing their mandate, therefore, show restraint, moderation and discretion so as not to undermine the recognition of the independent nature of their mandate or the environment necessary to properly discharge the said

Article 13 – Recommendations and conclusions Mandate-holders shall:

concerning allegations of human rights violations, also indicate fairly what responses were

given by the concerned State;

(a)While expressing their considered views, particularly in their public statements

(b) While reporting on a concerned State, ensure that their declarations on the human rights situation in the country are at all times compatible with their mandate and the integrity, independence and impartiality which their status requires, and which is likely to promote a constructive dialogue among stakeholders, as well as cooperation for the promotion and protection of human rights;

(c) Ensure that the concerned government authorities are the first recipients of their conclusions and recommendations concerning this State and are given adequate time to respond, and that likewise the Council is the first recipient of conclusions and recommendations addressed to this body.

Nomination, selection and appointment of mandate holders

In its resolution 5/1 and 16/21, the Human Rights Council clarified the parameters related to the selection and appointment of special procedures mandate-holders: Candidates can be nominated by Governments, the Regional Groups operating within the United Nations system, international organizations or their offices, non-governmental organizations, other human rights bodies and individuals. A Consultative Group appointed by the Council reviews all applications for Special Procedures’ positions and proposes a list of candidates to the President of the Council. Resolution 16/21 has further strengthened and enhanced transparency in the selection and appointment process of mandate holders. National Human Rights Institutions that comply with the Paris Principles may also nominate candidates. Furthermore, candidates are required to submit an application accompanied by a motivation letter for each mandate they wish to apply for. Shortlisted candidates are thereafter interviewed by the Consultative Group.

According to resolution 5/1, the following general criteria will be of paramount importance while nominating, selecting and appointing mandate-holders: (a) expertise; (b) experience in the field of the mandate; (c) independence; (d) impartiality; (e) personal integrity; and (f) objectivity. Due consideration should be given to gender balance and equitable geographic representation, as well as to an appropriate representation of different legal systems. Eligible candidates are highly qualified individuals who possess established competence, relevant expertise and extensive professional experience in the field of human rights. Individuals in decision-making positions in Government or in any other organization or entity which may give rise to a conflict of interest with the responsibilities inherent to the mandate are excluded from being appointed as experts. Technical and objective requirements have been further clarified in HRC decision 6/102.

Coordination amongst the Special Procedures: Coordination Committee of Special Procedures and the Annual Meeting of Special Procedures

At their annual meeting in 2005, Special Procedures mandate-holders established a Coordination Committee to facilitate coordination amongst mandate-holders and act as a bridge between them and OHCHR, the broader UN human rights framework, and stakeholders.

Annual meetings of Special Procedures mandate-holders have been organized since 1994. The meeting is intended to better coordinate and harmonize the work of special procedures, and for mandate-holders to address topical issues, and exchange views with States, the President of the Human Rights Council, regional human rights organizations, national human rights institutions, representatives from OHCHR and UN entities, and civil society organizations.

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Reference

International Convention on the Elimination of All Forms of Racial Discrimination (CERD), (1965) available at:http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx & https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en `
Joseph, S. McBeth, A. Research Handbook on International Human Rights Law. Edward Elgar, Cheltenham UK, Northampton MA, USA (2011) Chpt.1
“Confronting Racial Discrimination: A CERD Perspective,” Thornberry, P., Human
Rights Law Review, vol. 5, Issue. 2 (2005) pp. 239-269.