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UN Enforcement
"Special procedures" is the general name given to the human rights investigative and reporting mechanisms established by the United Nations Commission on Human Rights (the "Commission"). Although their mandates can vary, Special Procedures examine, monitor, advise, and publicly report on human rights situations in specific countries or territories, known as “country mandates”, or on major human rights issues or violations worldwide, known as “thematic mandates.” Special Procedures undertake various activities, including responding to individual complaints, conducting studies, providing technical assistance, and engaging in general promotional activities.
The term “Special Procedures” includes individuals variously denominated as “Special Rapporteur,” “Special Representative of the [UN] Secretary-General,” “Representative of the UN Secretary-General,” “Representative of the United Nations Human Rights Council” or “Independent Expert,” and “Working Groups” (usually composed of five independent experts).
These different titles neither reflect a hierarchy, nor are they an indication of the powers entrusted to the Special Procedures expert. They are simply the result of political negotiations.
During the existence of the UN Commission on Human Rights, leading democratic member states criticized the Commission for having an agenda that politicized the process of identifying and reprimanding human rights violators. Formal inquiries into the human rights records of individual countries were made via country-specific special procedure mechanisms. Often, a block of countries consisting of the most egregious human rights violators relied upon the special procedures process to investigate and publicly shame isolated countries engaged in activities that, while politically and socially unpopular in certain circles, often did not rise to the level of human rights abuses. This partisanship abuse of the human rights investigative and reporting process prompted the United States and other democratic countries to press for the restructuring of the Commission. This effort resulted in the formation of the Human Rights Council (the “Council”) in 2006.
One way that the new Human Rights Council attempts to address the problems of selectivity and politicization is by allowing for a “universal periodic review” (UPR) mechanism. Under this new process, during a four-year cycle, all 192 UN Member States will be reviewed, rather than simply focusing on a select few chosen by the Council. The mandate of the mechanism is to “undertake a universal periodic review, based on objective and reliable information, of the fulfillment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States.” This mechanism is to “complement and not duplicate” the work of other UN treaty bodies.
A Working Group, consisting of 47 member states and chaired by the President of the Council, conducts the state reviews. Three rapporteurs from among the Council members (a “troika”), help conduct the individual reviews and prepare the report that follows. Each periodic review includes an interview lasting three hours, during which “interactive dialogue between the country under review and the Council” takes place. Observer States may participate in this interview portion of the review. Each member state will be reviewed according to the human rights obligations stipulated in the Charter of the United Nations, the Universal Declaration of Human Rights, any human rights instruments to which the state under review is party, any “voluntary pledges and commitments” made by the state in question, and any applicable international humanitarian laws.
In order to prepare for the review, member states are asked to prepare a “national report” according to guidelines established by the Council, and containing any other information that may be relevant to the evaluation of human rights of the state under review. In addition, the Office of the High Commissioner for Human Rights must submit a compilation of any UN documents pertaining to the human rights record of the country under review, including treaty reports, special procedures and observations, and comments by the state. Finally, “other relevant stakeholders” are encouraged to provide information regarding the state in question.
Following the review session, the Working Group must issue a report for each member state which summarizes the proceedings of the review, states the conclusions and recommendations made by the working group, and lists the recommendations that the state under review as accepted or refused. The report must then be offered for adoption at a plenary session of the Human Rights Council.
After the dissolution of the Commission, in addition to creating the universal periodic review mechanism, the Human Rights Council assumed the Special Procedures mechanisms. The Council solicits the help of human rights experts to assist it in the task of examining specific situations or human rights themes. These mandates may focus on reporting on violations, on analyzing a problem, on assisting in the provision of technical assistance, or on a combination of one or more of these features. The adopted resolution of the former Commission and the Council set forth the mandates given to the Special Procedures experts.
The relevant resolution can provide for the appointment of a mandate-holder by the Chairperson of the Council, by the Secretary-General, or by the High Commissioner.
The individual mandate-holders are selected on the basis of their expertise, professionalism and independence. Individuals currently holding decision-making positions within the executive or legislative branches of their governments are ineligible for appointment, as they are deemed not have the requisite independence and impartiality. While overall regional diversity is important, any link between a given region and any particular mandate would undermine the necessary emphasis on expertise and impartiality. A gender balance is sought in connection with the overall number of mandate-holders.
Mandate-holders serve in their personal capacities, and are not staff of the UN. They do not receive salaries or any other financial rewards for their work, although the UN pays their expenses.
At present, the rule is that experts, including those serving on Working Groups, should serve a maximum term of 6 years. Mandate-holders are not eligible for appointment to a different mandate until three years after their previous mandate has expired.
The work of the mandate-holders is debated during the sessions of the Council. About one third of the experts also report to the United Nations General Assembly in New York. Some experts have informally briefed the United Nations Security Council.
Most Special Procedures:
- Receive information on specific allegations of human rights violations and send urgent appeals or letters of allegation to governments asking for clarification. In 2006, more than 1,100 communications were sent to governments in 143 countries. 48% of these were joint communications of two or more mandate holders.
- Mandate holders also carry out country visits at their own request, at the invitation of the country concerned, or on a basis of a "standing invitation." As of May 2007, 56 countries had extended standing invitations to the Special Procedures. After their visits, Special Procedures' mandate-holders issue a mission report containing their findings and recommendations.
- Mandate-holders also undertake thematic studies that contribute to the overall body of knowledge in the field and to the understanding of complex human rights problems and their possible solutions. Such studies can be used to raise awareness of particular problems or human rights violations and to shed light on the types of laws, policies and programs which might best ensure the respect for human rights in such circumstances. Thematic studies can also be used to provide human rights input into the formulation of legislative, policy and other initiatives in the relevant fields.
As of June 2006 there are 28 thematic mandates (on thematic issues) and 13 country-specific mandates. The thematic mandates range across the full spectrum of civil, political, economic, social, and cultural rights.
The mandate-holders are prominent human rights figures from various walks of life. They include current and former holders of high judicial office, academics, lawyers and economists, former and current members of non-governmental organizations, and former senior staff members of the United Nations. They come from all regions. In recent years, more effort has been made to select women experts. There are currently 10 women experts.
Special Procedures experts all enjoy the same legal status and fall within the same structure.
UN General Assembly resolution 60/251 of March 15, 2006 establishing the Human Rights Council requires the Council to “assume, review and, where necessary, improve and rationalize all mandates, mechanisms, functions and responsibilities of the Commission on Human Rights in order to maintain a system of special procedures, expert advice and a complaint procedure; the Council shall complete this review within one year after the holding of its first session.”
During its first session held June 19 – 30, 2006, the Council decided to extend exceptionally for one year, subject to the review to be undertaken by the Council, the mandates and the mandate-holders of all the Commission’s special procedures. In addition, the Council decided “to establish an open-ended intergovernmental working group to formulate concrete recommendations on the issue of reviewing and, where necessary, improving and rationalizing all mandates, mechanisms, functions and responsibilities in order to maintain a system of special procedures, expert advice and a complaint procedure, in conformity with General Assembly resolution 60/251, through open-ended, inter-sessional, transparent, well-scheduled and inclusive consultations, with the participation of all stakeholders.”
In the next session of the Human Rights Council, held in June 2007, the Council discussed the mandates and reforms of the Special Procedures.
The Office of the High Commissioner for Human Rights (OHCHR) facilitates and supports the work of mandate-holders.
The International Court of Justice (ICJ) is the judicial arm of the United Nations. Established in 1945 by the Charter of the United Nations, the ICJ is charged with settling legal disputes between states using international law. It can also give advice to other UN organizations and agencies in regards to legal questions.
A recent decision of the Supreme Court of the United States limits the legal authority of the ICJ in regards to the Vienna Convention on Consular Relations (Vienna Convention). Established in 1963, the Vienna Convention stipulates the duties and privileges of appointed consular officials in their receiving countries. These duties include “safeguarding the interests of nationals” of the sending state; informing the consulate of any arrest of nationals within the receiving state; informing the arrested national of his or her right of communication with the consulate; and “representing or arranging representation for nationals of the sending state before tribunals and other authorities of the receiving state,” among other things.
Two optional protocols have been added to the Vienna Convention, the second of which declares that any disagreements over the “interpretation or application” of the Convention shall be decided by the ICJ. In 2004, in the case of Avena and Other Mexican Nationals (Mexico v. United States of America), the ICJ decided that the United States had violated the Vienna Convention by failing to inform the Mexican consulate of the arrest of 51 of their nationals and by neglecting to inform the detainees of their right to communication with their consulate. The ICJ ruled that the U.S. must review the convictions and sentences of the Mexican nationals.
In response to the ICJ’s 2004 decision, in a 2005 Executive Order, President George W. Bush stated that the United States “will discharge its inter-national obligations…by having State courts give effect to the decision.” However, in the 2008 decision in Medellín v. Texas, the Supreme Court of the United States decided that, unless an international treaty is self-executing upon its ratification, it is up to the legislative branch, not the executive or judicial branches, to adopt provisions regarding procedures for enforcement of the treaty provisions. The Supreme Court detailed these views in the Medellin decision, which concerned one of the Mexican nationals referenced in the ICJ Avena decision. According to the Court, because the Vienna Convention is not self-executing, the U.S. Congress must decide the terms on which it will be given effect in the United States.
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