The Politics of Reforming Special Procedures

The political nature of the decisions creating mandates has propitiated the development of pioneering methods of work because they provided a wide margin of autonomy to experts acting as mandate holders. Their less than solid normative basis has also allowed political contestation. The legal foundations have been particularly weak in justifying working methods to handle individual communications of human rights violations, since it represents an extraordinary limitation to the sovereignty of states. In this context, states have pushed for several reforms of the UN Special Procedures with different motivations. The reform agendas pursued by the Asian and African Group have been considered as particularly threatening for the future of Special Procedures. In practice, their number has continued to grow. Furthermore, several waves of reform have resulted in standardization of practices and the provision of sounder legal bases for the methods of work of mandate holders through the approval of the Code of Conduct, among other measures. The processes of reform have forced the consideration of Special Procedures as a distinct category in the political arena.

Creation, Institutionalization, and Development of Public and Confidential Special Procedures

The history of how Special Procedures were first envisaged, considered, mooted, negotiated, and created impacted the evolution of the internationalization of human rights under the auspices of the UN Commission on Human Rights. The trajectory of these mechanisms provides key insights into both the overall direction and the conduct of politics concerning not only human rights but also development and issues concerned with peace and security at the United Nations. They correspondingly serve as a backdrop to many contemporary global concerns in how they are articulated, defended, and responded to by multilateral organizations. This chapter outlines the key events leading to the birth of the first public and confidential Special Procedures as a positive outcome of what was a highly politicized process. The first section explains the rationale underpinning the polar change of direction of the Commission on Human Rights, from a position where it initially denied its own competence to address human rights violations, to its decision to create subsidiary fact-finding bodies with exactly such purpose. The ad hoc nature of their establishment—from which their derive their denomination as “Special”—against political realities of the time led to a non-linear history that explains many of their current features.

Final Remarks

This final chapter situates the analysis of the role of politics in the development of the Special Procedures within the heated debate over the future of the international human rights agenda as articulated by a growing number of scholars. It suggests that the alleged failures of international human rights may be a reflection of the rigidity of the Westphalian edifice in accommodating the struggles of individuals and communities beyond the human rights framework. Only human rights mechanisms have demonstrated enough flexibility, accompanied by political will, to open access for non-state actors to the transnational space. This accessibility has not been accompanied by an acknowledgment of the conceptual, normative, institutional, and practical problems inherent in the attempt to combine agendas that are not always compatible, as illustrated in the relationship between development, security, and human rights issues. This important gap is compounded by the myth this book seeks to discredit, namely, the presumption that politicization of human rights should be eliminated and that some groups of states are rigidly associated with preconceived political alignments.

Implementation of Methods of Work

This chapter explores the implementation of methods of work developed by mandate holders of Special Procedures, focusing on those that stand out for their interference with the sovereignty of states, their adaptability to multiple scenarios, and their accessibility. This includes: (1) the handling of communications; (2) visits on the ground; and (3) development of normative standards in the field of human rights. Perhaps paradoxically, Special Procedures have drawn on the vagueness of mandates determined by political negotiations as a basis to develop quasi-judicial methods of work and contribute to the codification of international human rights law. However, the differences in implementing methods of work and interpreting mandates unravels the challenges inherent to combining political and legal approaches to human rights issues. Some of those challenges can be overcome with better communication strategies, standardization of generic information, and better induction programs, which should be included in the process of selection of new mandate holders. Others are inevitable to persevere the features that have permitted the unique methods of work and influence of Special Procedures.

Growing Organically

Exceptional features that characterize the Special Procedures are illustrated in their progressive and unplanned development as a “system” of human rights mechanisms. This evolution is explained by a combination of political and expert-led decisions adopted by the Human Rights Council, mandate holders, and the Office of the High Commissioner for Human Rights. The successive approval of cross-cutting mandates aimed at all Special Procedures has contributed to coherence in the competences assigned to them, yet has also opened the door to indirect and an unaccounted multiplication of tasks. Over the years, Special Procedures mandate holders have developed practices that have abetted their progressive configuration as belonging to a “system” of human rights mechanisms. This process has evolved through individual and collective initiatives. While mandate holders have made significant efforts to harmonize methods of work, they have simultaneously insisted on maintaining their autonomy. The political consideration of Special Procedures as a single category has been reflected in the support received by the UN Secretariat, through the Office of the High Commissioner for Human Rights, a key determinant in their perception as a coherent group of mechanisms.

Introduction

The introduction sets up the scene for the analysis that follows explaining the main topics addressed in the book. It succinctly explains how it seeks to challenge the conventional wisdom underpinning the presumption that politicization is a weakness of the international human rights system, through the lenses of the Special Procedures. It also addresses recent criticisms aimed at the international human rights machinery. The introduction also provides the reader with a map of the overall structure of the book and the main topics addressed.

Politics of “Independence”

Multidimensional factors influence the real or perceived independence of mandate holders. This chapter explains the changes that have superficially improved the balance in the gender and geographical distribution of mandate holders. It considers the influence of personal and professional backgrounds of mandate holders. In particular, it questions whether some disputed interpretations of “independence” are direct consequences of the high number of academics in charge of Special Procedures. The independence of mandate holders, the cornerstone of the system of Special Procedures, is clearly defined vis-à-vis non-governmental and governmental stakeholders interacting with them. This has been endorsed by two advisory opinions of the International Court of Justice and the Code of Conduct. However, this absolute independence does not extend to the relationship of mandate holders with the United Nations, especially the Human Rights Council. Arguing otherwise undermines the authority of the Special Procedures. Finally, the chapter explains the relationship of Special Procedures with the Secretariat, the General Assembly, and the Security Council, revealing complex internal administrative structures and geopolitical considerations that determine the daily work of Special Procedures and the scope of their mandates.

Shuttling between Diplomacy and Expertise in Developing Methods of Work

This chapter analyzes the influence of political factors in providing both freedom for diverse approaches to implementation of methods of work and explicit or implicit limits determining the operationalization of mandates. The chapter focuses on the challenges associated with the public nature of the activities of Special Procedures and the tendency of mandate holders to perform different roles, which may not be always compatible. Mandate holders have developed methods of work that have consolidated the Special Procedures as direct interlocutors with governments, intergovernmental, and non-governmental organizations and other stakeholders. Contemporary Special Procedures constitute a regular system of monitoring state behavior through the treatment of alleged cases of human rights violations under their competence; visits on the grounds; analytical studies of specific issues influencing the situation of human rights in a concerned territory or worldwide; and the generation of an enormous volume of data on recorded violations over time. They have shed light, clarified, and at times contributed to the applicable international and national legal frameworks. They have played an activist role beyond the realm of individual cases, using their expertise to mediate or intervene in legal and political disagreements within and outside formal mechanisms of dispute settlement. They raise awareness of, highlight, and promote best practices to improve the situation of human rights around the globe, as well as the circumstances that propitiate human rights violations, including their link with the development and security agenda.