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Special Procedures of the Human Rights Council: Assessment & Way Forward

GENEVA, May 14 2016 (IPS) - In my personal capacity as an academic from the Global South and a retired international civil servant, I undertook a study for the Geneva Centre for Human Rights Advancement and Global Dialogue which was published in November 2014. This was at a time when I had no idea that I would later become a member of this elite group of Special Procedures Mandate Holder. The study is entitled “In Defence of Special Procedures of the Human Rights Council: An alternative narrative from the South”.

Idriss Jazairy. Credit: courtesy author.

Idriss Jazairy. Credit: Image provided by author.

The study makes the point that this mechanism was first initiated by the South and that the countries of different regions of the South share with those of the North the paternity of this innovative way of ensuring independent monitoring of human rights worldwide. They all consequently have an equal right to contribute to enhancing the efficiency of this mechanism.

The study indicates how one can remove the barrage of objections raised by countries or groups headquartered in the North who believe they are the self-appointed defenders of Special Procedures. They have tended to act in the past as if any suggestion for improvement of Special Procedures coming from the Global South can only be motivated by a desire to undermine the independence and integrity of the said mechanisms.

In other words, this study is an appeal to the North whether to Governments or to civil society organisations from the North that they accept to discuss with the South such suggestions on their merits. It would warrant engaging with those who hold different views and seeking to broaden areas of consensus through bridge-building as our Chairman emphasized in his opening remarks rather than through “excommunication”!

I will raise five central issues:

First, the process of selection of mandate-holders: the study reviews the process of selection of mandate-holders which has been improved as an outcome of the 2010 -2011 HRC review process. Henceforth the President of the Council has to give reasons if he decides to disregard the recommendations of the Consultative Group concerning the list of appointees. This adjustment indeed makes for greater transparency but it does not insulate the President from backroom political pressure from powerful quarters.

Why could we not, in cases where paralysis or postponement threaten, put the appointment of the mandate holders to a vote? There has been no disastrous effect resulting from the fact that their counterparts in treaty bodies are selected by ballot. Are they less objective or independent because of that? Candidates could campaign, offer plans of action indicating what they would do if elected. Many methods exist to ensure equitable gender and geographic distribution.

Second, the review, rationalisation and improvement of mandates.

The challenge here is to change the cluster of 77 Special Procedure Mandate Holders into a system. This is what the Council was mandated to do by General Assembly Resolution 60/25, o.p. 6, which directed it to “where necessary improve and rationalize all mandates (…) in order to maintain a system of Special Procedures”.

Why has this not happened? There are currently 77 mandate holders as against 44 when HRC was established and on current trends their numbers will reach 100 in ten years’ time. No provisions for a sunset clause, for mergers or absorption are in the cards.

If each mandate, of which there are now over 55 including SPs in working groups and with numbers growing year on year, interact with States on top of other Human Rights mechanisms, this can become an administrative nightmare for smaller and least developed countries.

Some claim ballooning of Special Procedures has a political explanation: each special procedure has a virtual national flag on it and to eliminate, merge it or otherwise change it may be seen as an offence to the initiating country which continues to enjoy special rights over the fate of the mandate.

Be that as it may, the numbers of Special Procedures keep increasing, never dovetailing but rather duplicating with pre-existing mandates. There is obvious overlap, for instance, between the mandates on trafficking in persons, especially women and children, the one on contemporary forms of slavery including its causes and consequences and the mandate on the sale of children, child prostitution and pornography.

Likewise CEDAW having defined violence as a form of discrimination against women, it’s hard to explain why one needs two mandates, one on discrimination against women and the other on violence against women.

While these mandates have Northern roots, the initiating countries from the South are not immune to such tendencies. Thus there is an obvious link between the mandate of promoting a democratic and equitable international order, the mandate dealing with foreign debt and that related to human rights and international solidarity.

I recommend a revitalisation of the RRI process in an open ended working group of the Council.

As a staying measure, the Council should start by requiring initiators of new mandates to answer such questions as:

– is there no other UN mechanism which addresses in part or in whole the issue proposed?

– is there not a Special Procedure which covers partly or wholly this issue?

– if so why not adjust the existing mandate for this purpose?

– could the new mandate not replace an existing mandate?

In parallel, the working group would review “all existing” thematic mandates to promote coherence, avoid duplication, determine protection gaps and determine whether the distribution of SPs between individual mandates and working groups is still appropriate.

Third, the enhancement of the cooperation between States and Special Procedures

General Assembly resolution 65/281 of 17 June 2011reiterating other similar positions incorporated in resolution 60/251 and in the Code of Conduct of Special Procedures stipulates that “The Special Procedures shall continue to foster a constructive dialogue with States” (emphasis added). In its para. 94, the MOSP reiterates this commitment but then illustrates it by saying “It is thus appropriate that reminders be sent to Governments in relation to unanswered correspondence”.

Mandate holders are also urged “to follow up on replies provided by the Governments in order to request further clarification…”. Surely a constructive dialogue can go beyond sending registered letters and asking for more clarification.

Real dialogue involves give and take. Why not for instance ask the CC and the 5 geographic representatives of States members of the Council to consult on how para. 94 of the MOSP could be made to reflect not only the letter but also the spirit of UNGA resolution 65/281.

Fourth is the broader issue of how the Human Rights Council can interact with Special Procedures on issues of methodology.

This interaction has to reconcile the accountability of Special Procedures to the Council which appoints them with the full independence of judgement of these mandate-holders in the pursuit of their monitoring mission.

The following kinds of issues have been raised in the recent past which have not found an optimal solution:

Can a Special Procedure Mandate Holder, in the legitimate context of his right to select studies to present to the Council, also question initiatives under discussion by the Council itself without being requested to do so?

If a Special Procedure is mandated by the Council to present a report on a particular issue at a specified session of the Council, may he replace such report by a study that he considers as taking precedence over the mandated theme without consulting the Bureau of the Council?

May a Special Procedure or a commission of enquiry mandated by the Council to present to it a report on a specific theme, report to the General Assembly thereon before reporting to the Council without specific authority to do so?

Should Special Procedures who also interact with the General Assembly of with the Security Council also report to the Human Rights Council thereon?

Many other such questions may crop up from time to time.

During the 2010-2011 review process, all groups of countries of the Global South proposed that some form of advisory body of independent jurists could be consulted on an ad hoc basis to address these procedural issues and free more time in the Council for debates on the substance of human rights promotion and protection.

This view held by a majority of developing nations deserves respect even in case of disagreement. And indeed it was objected to by the Global North, whether at the governmental or at the NGO level, who claimed this was tantamount to imposing an Ethics Committee on Special Procedures.

Pending progress towards greater understanding between North and South on this issue, it is suggested that such issues be discussed at an annual joint meeting of the Coordinating Committee of Special Procedures with the 5 regional representatives of the geographic regions recognized by the Council. They would consult on solutions to such procedural issues including linkages between relevant GA or HRC resolutions and paragraphs 94, 102 and 105 of MOSP.

Fifth, what future structure and funding for Special Procedures?

The dissemination of thematic and country mandates between different divisions or branches of OHCHr in the past has been a cause for concern about the preservation of the independence of Special Procedures. So has their authority to fund-raise individually as per paragraph 11 of MOSP.

The latter question has been addressed recently as Special Procedures are now asked to disclose and report on the support they obtain directly in cash or in kind from outside donors. This report should be submitted to HRC in the context of standard financial reporting.

Idriss Jazairy is author of “In Defence of Special Procedures of the Human Rights Council: An Alternative Narrative from the South”, the Geneva Centre for Human Rights Advancement and Global Dialogue.

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