Special Procedures Under Discussion in HRC Working Group
New York, 19 April 2007 - The UN Human Rights Council is working to complete its “institution-building” phase. The Council is expected to adopt resolutions defining all institution-building elements at its Fifth Session (11-18 June 2007). While some progress has been made, significant outstanding questions remain regarding the mandates for “Special Procedures.” Special Procedures are the ways in which individually assigned “mandate-holders” conduct activities related to reporting on human rights, including both country-specific and thematic issues.
One task is to establish the selection process for mandate-holders of the Special Procedures and their working methods. Other tasks include developing criteria for the review of existing mandates (carried over from the former Commission on Human Rights) and discussing the scope of the mandates assigned by the Council. The working group on these issues is facilitated by Ambassador Tomas Husak of the Czech Republic.
Below is a summary of the working group’s progress since its first meetings held in November 2006. This is based on Mr. Husak’s non-paper of 14 March presented to the Council, as well as his revised version (17 April) submitted after informal consultations that took place in the following weeks. His non-paper is serving as a compilation draft text for the Council’s adoption.
Special Procedures: Selection of Mandate-Holders & Their Working Methods
“Special procedures” refer to the Council’s human rights reporting activities. With these activities the Council can both collect and disseminate information about issues of concern. As with the Commission, the Council has five means by which it can carry out the Special Procedures: send fact-finding missions to countries, issue urgent appeals to governments, issue press releases or statements, identify trends or emerging issues, and submit reports to the Council and in some instances, the General Assembly.
The individuals given mandates for conducting these reporting activities (“mandate-holders”) include Special Rapporteurs, Special Representatives of the Secretary-General, Representatives of the Secretary-General, and Independent Experts, among others.
Selection and Appointment of Mandate-Holders
The working group has agreed on criteria and principles to guide the selection of mandate-holders. Criteria include gender balance and independence. Equitable geographic representation was agreed to be a principle of selection, rather than strict criteria.
The process by which mandate-holders will be selected has not been decided. Mr. Husak suggested three different models for the selection-process:
- Appointment by the President of the Council after consultations with the bureau (the vice-presidents of the Council) and the regional groups,
- Appointment by the President after candidates are “screened” by advisory body and endorsed by the Council (supported by the EU), and
- Nomination and election of candidates after screening (“Brazilian model”).
Some states oppose all three proposals: Canada prefers appointments to be based on input from representatives from the Special Procedures, NGOs, victims and from the future system/body of expert advice. Cuba opposes a formal or broad-based screening process in favor of selection by the Council, which is also supported by Iran and India.
Coherence and Coordination between Mandates and Mandate-Holders
The working group agrees that mandate-holders of the Special Procedures should cooperate with each other, for example, by exchanging information.
It also agrees that there should be “coherence” between the various mandates, but it has not yet determined the balance between independent decision-making by the mandate-holders, and standardized procedures. EU states generally favor an open-ended approach, leaving the mandate-holder to determine the measures need to complete their tasks, while Cuba and others prefer to establish standard procedures. African States further advocated a “Code of Conduct” for mandate-holders.
Relationship with the Council
With regard to the Special Procedures fact-finding activities, member states agree that:
- the reports of the Special Procedures should apply the same format, structure, content, and timeliness as under the Commission;
- the Council should provide guidance to the mandate-holders of the Special Procedures;
- after country visits, the Council should consult with the state in question, allowing the state to present its views;
- country reports should be prepared within six weeks of a country visit;
- reports should be based on “credible and objective information”; and
- follow-up activity to recommendations should be strengthened. Defining details of the “follow-up” are still undecided. Some states favor using the Universal Periodic Review (UPR) to evaluate the implementation of Special Procedures reports, while other states prefer to keep the two procedures completely separate. They fear the reports of the Special Procedures would undermine the non-biased character of the UPR. (According to the founding resolution of the HRC, the UPR is to be “based on objective and reliable information).
The Council’s working methods for addressing reports from Special Procedures activities remain undecided. For example, rules of NGO participation during interactive dialogue and how often to update annual reports with new findings from Special Procedures activities are still in question.
Cooperation by and with Governments
Member States have agreed that cooperation with and by the states in which reported human rights violations are taking place is a prerequisite for the success of the Special Procedures. However, the working group has yet to define what such cooperation includes and how to ensure it occurs.
Consultations have revealed a general wish to establish standard procedures for communication with governments (e.g. urgent letters appealing for the government in question to take action). China stressed that mandate-holders should be accountable only to the Council, as opposed to another (outside) stakeholder.
Further consultations are needed in order to define the measures the Council may take if a government does not cooperate with the Special Procedures. Similarly, the working group will further consider how to balance a country’s legal obligations. If international human rights obligations (i.e. to cooperate with a Special Procedure) conflict with the national laws of that country, which set of laws will take precedence? One option is for the Special Procedures mandate to be based on the national laws of the country in question; alternatively, the Special Procedures could refer to international human rights law.
The facilitator has suggested that the Council members “lead by example” by issuing standing invitations to the Special Procedures.
Relationship between Mandate-Holders and other Human Rights Instruments
The relationship between the Special Procedures and the UPR is a contentious subject, as described above (“Relationship with the Council”). Consensus exists on encouraging interaction between Special Procedures and other instruments of the Council, including the Complaint Procedure (the channel by which victims, or those acting on behalf of the victims, can raise a specific human rights violation and request the Council to take action), and the UPR, but it needs further discussion. Cuba and the Philippines argue that the Special Procedures should undergo a periodic review.
Member States generally support encouraging NGO participation, with the stipulation that NGO contributions must be “objective.” Further consultations are needed on how to facilitate NGO engagement with mandate-holders and how to ensure a geographically-balanced representation of NGOs.
Organization and Logistics – Support from OHCHR
The working group has discussed how the Office of the High Commissioner for Human Rights (OHCHR) can support the Special Procedures. States agree on allocating adequate financing from the OHCHR’s regular budget to the Special Procedures. In other words, increases in regular funding to the OHCHR should result in increased financing of the Special Procedures.
Details of administrative and financial support for mandate-holders are still undefined.
Other Working Methods Issues
There is preliminary consensus that:
- OHCHR country teams should be involved in country visits made by the mandate-holders of the Special Procedures. Mr. Husak advocated stressing the importance of this cooperation in the Council’s final decision on the Special Procedures.
- Reports of the Special Procedures should be shared with the General Assembly’s Third
Committee upon request. Questions remain on criteria that should apply to these requests (at what stage reports can be shared, etc.)
The working group still needs to decide how mandate-holders will be evaluated, as well as how the implementation of Special Procedures recommendations (mentioned above under “Relationship with the Council”) will be monitored.
Code of Conduct
Another issue in need of further consultation is the development of a Code of Conduct for mandate-holders of the Special Procedures, which has been raised by some member states.
Whether to have a Code of Conduct at all remains a controversial question. EU member states, Canada, Belgium, and other states as well as several NGOs, have stressed the importance of independence for the mandate-holders. They argue that a Code of Conduct should not weaken this principle and that oversight is not the task of the Council.
In response to this discussion, a group of mandate-holders offered a proposal for elements of a potential code of conduct. The elements reflect existing practices, and the authors emphasized that many mandate-holders do not see a need for a Code of Conduct.
If it is agreed upon that a Code of Conduct is needed, to whom it would apply is another unresolved issue. Pakistan, China, the Philippines, Bangladesh, Cuba and South Africa believe it should apply only to individual mandate-holders of the Special Procedures. The EU, Canada, Switzerland, Norway, New Zealand, Liechtenstein, Mexico and Japan argue that it should apply to states as well.
Summary of informal consultations on Special Procedures (16 April), prepared by ISHR
Facilitator’s Proposal on Special Procedures (Revised 17 April)
African Group’s Proposal for a Code of Conduct
Special Procedures’ Coordination Committee Note on Possible Elements of a Code of Conduct
Review of Existing Mandates and Criteria for Future Mandates
The working group is developing guidelines for the ongoing review of mandates given by the Council. They have been working to identify gaps in the existing mandates and establish criteria for future mandates, among other questions.
Mandates fall into two categories: country-specific and thematic.
General Criteria for Review of Mandates
The following proposals have gained general support:
- All mandates should be guided by the principles of universality and interdependence, and should promote the interrelatedness of human rights and “cooperation without selectivity.”
- The right to development is equally as important as other human rights.
- Improved focus should be given to certain thematic issues, such as the right to education; protection from discrimination, torture and racism; the right to food; and the right to vote.
- The role of the Special Procedures should be strengthened, particularly in terms of their capacity to advise and provide technical cooperation at the country level. (This statement seemingly is contradicted by reported ongoing efforts to eliminate all mandates for Special Rapporteurs, especially the country-specific ones. Some states feel that Special Rapporteurs have overstepped their mandates (from the former Commission on Human Rights) when performing their investigations.)
- Accountability of mandate-holders needs to be improved.
- There should be a balance between the number of mandates focused on civil and political rights, on one hand, and those focused on cultural, social, and economic rights, as well as specific populations in need of protection, on the other hand.
Cuba has proposed extending the thematic mandates and reviewing them periodically when the resolutions came up for renewal (every three years). This has been supported by most states. Russia and several other states, however, argue that a blanket extension of all thematic mandates would wrongly signal that the mandates should remain intact, thus undermining the task of the working group to review all mandates
Country Mandates
The working group still needs to decide how to ensure equal attention for all human rights (particularly with regard to the Special Procedures).
One of the most contentious issues of the Review of Mandates is the Special Procedure of country-specific mandates. Country mandates usually take the form of Special Rapporteurs. Some states feel that the issuing of country mandates would to add to the political tension surrounding the Council and that such mandates would lead to bias in the reports. These states are especially concerned about bias resulting from formal links between the Special Procedures and other human rights instruments of the Council, such as the UPR, complaint procedure or special sessions.
Other states (including the EU, Norway and NGOs participating in the discussions) view the Special Procedures and particularly the country mandates (including country-specific Special Rapporteurs) as vital to the Council’s ability to promote and protect human rights.
While no state has suggested removing all of the Council’s country mandates, skepticism towards country-specific resolutions and mandates has influenced the work of the various working groups. On 26 March the Council decided to remove Iran and Uzbekistan from scrutiny (they had been the subject of Special Procedures under the Commission on Human Rights).
The procedure for adoption of country mandates most likely will continue to be a highly debated topic in working group and Council discussions. One position is that country mandates should only be adopted by consensus of the Council and with consent of the state in question (supported by China, Iran, Belarus, Russia, and others). The other position calls for a simple majority vote, citing the General Assembly’s Rules of Procedure (supported by Belgium and Japan).
Next Steps
Due to the volume of remaining questions, the working group may use a list of priority areas for its remaining consultation on 26 April.
Summary of informal consultations on Mandate Review (22 March), prepared by ISHR
Facilitator’s Revised Proposal on Mandate Review (17 April)
Useful Resources
Timetable for remaining working group consultations (10-27 April)
Human Rights First Petition: “Save the U.N. Human Rights Investigators”
Amnesty International Petition: Act for Special Procedures
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