by Marc Limon and Ted Piccone
The United Nations’ independent human rights experts – otherwise known as ‘Special Procedures’ – are considered by many to be the ‘crown jewel’ of the international human rights system. From their first appearance in 1967 when the Commission on Human Rights established an Ad Hoc Working Group to inquire into the situation of human rights in southern Africa, Special Procedures have grown into one of the international community’s most important tools for promoting and protecting human rights. Today, the UN human rights system boasts fifty active Special Procedure mandates covering a wide-range of thematic and country-specific issues – with more in the pipeline. Their unique place in the international human rights architecture and their status as the ‘crown jewel’ of the human rights system is almost universally accepted or even assumed.
But as we reflect on the appointment of the UN system’s fiftieth active Special Procedure, it is important to stand back and objectively evaluate the strengths and weaknesses of the Special Procedure system, and to question the assumption that it can continue to grow and evolve organically as it has done since 1967. In short, it is important to ask the questions: what makes Special Procedures so special anyway, how do they seek to influence human rights policy and practice, and, looking to the future, what should be done to preserve their ‘specialness’?
A new Universal Rights Group-Brookings Institution policy report authored by Marc Limon and Ted Piccone attempts to answer these and other questions and also proposes a series of concrete steps that UN member states and other stakeholder can take to strengthen the future effectiveness of the mechanism.
Key findings and conclusions in the policy report include:
Today there are 50 active Special Procedure mandates, and 74 mandate-holders. Since 1967, the UN has established 79 mandates in all, yet only once in the 46 year history of the mechanism have thematic mandates ever been discontinued (with the merger of two mandates in 2000).
Based on 2009-2013 trends, the number of Special Procedure mandates will reach 100 by 2030.
While the number of thematic mandates continues to grow rapidly (today there are 37), there has been a significant relative decline in the number of country mandates since 1995.
The independence of Special Procedures is crucial to their utility and influence, and must be protected and preserved. But this is balanced by their ‘multidimensional and multidirectional’ accountability. States should remain committed to the current self-regulatory‘Internal Advisory Procedure’ for maintaining independence while ensuring accountability.
The current system for appointing mandate-holders is generally working well both in terms of selecting candidates based on expertise, experience, independence and impartiality, and in terms of giving due consideration to gender balance and equitable geographic representation.
The predominance, across the mechanism, of mandate-holders from Western-based academic institutions is a systemic consequence of the fact that mandate-holders are unpaid yet often devote a large amount of their time to the mandate.
The Western Group has established the most economic, social and cultural rights (ESCR) mandates (five), while the African Group has created only one ESCR mandate but the most country mandates (five).
The effectiveness of the Special Procedures mechanisms is heavily determined by the degree to which mandate-holders are able to build a cooperative relationship with states. There is significant scope, in the Council, to leverage transparency and public accountability to strengthen cooperation.
The lack of implementation and follow-up on Special Procedure recommendations is a key weakness of the system – a fact widely recognised for more than two decades. It is vital for the effectiveness of the mechanism that mandate-holders produce regular follow-up reports and that states and NGOs consider and debate these updates.
The Special Procedures mechanism, the ‘jewel in the crown’ of the UN system, receives less than half a per cent of the UN’s regular budget – only slightly more than the proportion allocated to the UN library in Geneva or for the ‘peaceful use of outer space’. This, together with a corresponding reliance on extra-budgetary funds and non-UN support, creates systemic imbalances that undermine the independence and effectiveness of Special Procedures.
The rapid growth in the number of mandates over recent years has corresponded with a significant increase in the number of country missions. As of December 2013, more than 160 states have received at least one Special Procedure mission.
The Western Group, Group of Latin American Countries and Eastern European Group have the highest proportion of completed country visits (around 70%). The Asian Group has the lowest (47%). The Asian Group and the African Group however have the highest overall number of completed visits (248 and 235 respectively).
There are clear question marks over the degree to which the Special Procedure petition system is accessible to and capable of responding to the needs of victims. URG-Brookings Institution analysis found that just 4% of mandate-holder communications (sent to states to follow up on individual petitions from victims or their representatives) receive replies indicating that an adequate investigation has been completed and/or that concrete steps have been taken to address the alleged violation. Meanwhile, around 50% receive no response at all, and the number of petitions which are not taken up by mandate-holders in the first place is unrecorded.
Special Procedures are increasingly leveraging both traditional and social media to amplify their influence.
The policy report demonstrates that more focused attention should be paid to improving the efficiency and effectiveness of the Special Procedures mechanism, and that careful, targeted steps can and should be taken to better support the system. With this in mind, the authors of the report make a number of practical recommendations for consideration by all stakeholders.
Key recommendations in the policy report include:
States that support the work of Special Procedures should coordinate their efforts by establishing a Group of Friends of the Special Procedures in both Geneva and New York.
Relevant stakeholders should maintain and strengthen the current self-regulatory procedure for dealing with alleged violations of the Code of Conduct.
OHCHR should produce and diseminate objective information on levels of state cooperation with the Special Procedures.
Relevant stakeholders should consider new mechanisms to reduce the Council’s dependency on Special Procedures and support the better implementation of human rights norms, such as for example a rapid deployment mechanism with a standing roster of experts.
All mandate-holders should produce regular follow-up reports focused on the implementation of their recommendations. These reports should be tabled at the Human Rights Council and discussed under agenda item 5.
The UN should expand the regular UN budget support for the human rights pillar from 3% to 6% by 2016, states should reduce earmarking of voluntary contributions and mandate holders should improve levels of transparency for direct (non UN) financing.
States, OHCHR and mandate-holders should work together to deploy and leverage technology to improve the efficiency and effectiveness of the Special Procedure mechanism.