• Ei tuloksia

3 Tools available for the Human Rights Council to address country situations

3.2 Special Procedures

When establishing the Human Rights Council in March 2006, the General Assembly, among other things, decided that the Council "shall 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". So far, the system of special procedures has survived the reform process fairly well.

It was generally noted among participants of the workshop that the biggest failure of the reform of the system of special procedures was that not a single one of the positive or innovative proposals presented were in the end included in the institution-building package adopted by the Human Rights Council in June 2007.44 However, it was also noted that there ought to have been no realistic expectations for a reviewing process that would have resulted in any meaningful strengthening of the special procedures. Rather, the process was, as all previous reform processes affecting the Commission on Human Rights and its system of

43 Written contributions on the special procedures were presented by Martin Scheinin and Jonas Grimheden.

44 See also Meghna Abraham in Building the New Human Rights Council: Outcome and analysis of the institution-building year. Friedrich-Ebert-Stiftung, Dialogue on Globalization, No. 33, August 2007.

special procedures, about defending the already existing system from being weakened or scrapped altogether. This should not have come as a surprise to anyone who was even marginally involved with the work of the allegedly so discredited Commission on Human Rights.

3.2.1 Review of special procedure mandates

Participants of the workshop learned that the establishment of the Human Rights Council immediately created a situation where the special procedures suffered a blow on their legitimacy. Special procedure mandate-holders were referred to as special rapporteurs of the discredited Commission on Human Rights and many governments adopted a wait-and-see approach in respect of cooperating with the special procedures, among other things, in the context of country visits. As was pointed out at the workshop, it has not been uncommon to hear a statement according to which a government is announcing its reluctance to invite a special rapporteur to carry out a country visit because the human rights record of the government concerned will, in the coming years, be reviewed under the universal periodic review mechanism. This together with the fairly slow process of the Council reviewing the special procedure mandates has not only hampered the practical operation of the procedures but has also benefited those governments who feel them as an inconvenience.

By now, it has been decided to assume and renew all special procedure mandates, except the country specific mandates on Cuba and Belarus which were dropped. The participants of the workshop learned, however, that this was only the first round of the review of mandates. This blanket renewal of the special procedure mandates only postponed the review of each individual mandate to the time when a mandate-holder's term will come to an end. This means, participants were told, that the operation of a special rapporteur appointed, for instance in 2005 for a three-year term, will be continuously under review for the whole duration of the mandate, except for the very first months. Again, this situation, it was considered, certainly benefits governments that are less enthusiastic about the work carried out by the independent human rights experts.

Participants of the workshop were also told that from the way the review of individual special procedure mandates began at the Human Rights Council's sixth session in September 2007, it looks as if this renewal will also mainly take place without the Council discussing and deciding on issues of substance. It looks, it was noted, as if mandates are being renewed by renewing the resolutions by the Commission on Human Rights, without acting upon the reports prepared by the mandate-holders, including the possible recommendations included therein.

It was also noted that it appears that this approach will result in a third round of reviewing the special procedure mandates on the next occasion that a substantive resolution related to a particular mandate comes up, if ever. It was also considered that there is a risk that the Council will fail to address issues of substance meanwhile. During 2006 and 2007, the reports prepared by the special procedures – which are in the heart of their function and which often include detailed recommendations for the Council – have as a rule not been acted upon by the Council.

Despite all the negative experiences affecting the system of special procedures, participants of the workshop were also, however, reminded of the fact that things could have gone worse.

The Human Rights Council could, for example, have lost the system of country-specific special procedures altogether because many government were of the view that the situation of

human rights in particular countries should only be addressed through the universal periodic review mechanism, through a confidential complaints procedure, or, in exceptional cases, through special sessions, but certainly not by the appointment of country-specific special procedures.

The reform was, again, in other words, about defending the already existing procedures and mechanisms. This is a reason why many stakeholders, for example, expressed their concern when the General Assembly decided, in its resolution establishing the Human Rights Council, to maintain "a system of special procedures" instead of "the system of special procedures"

which had already, despite its minor flaws, proven its strengths. By maintaining "a system" of independent experts there was namely no assurance that the control that government were to extend over the work of the experts would not jeopardize their independence and impartiality.

At worst, the review could, in other words, have resulted in the abolition of all country-specific special procedure mandates and in the issuing of such control mechanisms over the rapporteurs which, in practice, would have meant the end of the "eyes and ears" of the United Nations human rights system.

Participants of the workshop learned that, so far, the price for maintaining the system of country-specific special procedures has been the termination of the mandate of the Personal Representative of the High Commissioner for Human rights on the situation of human rights in Cuba and of the mandate of the Special Rapporteur on the situation of human rights in Belarus. It remains to be seen whether other country-specific special procedure mandates will be renewed when their term comes to an end or whether the majority of the governments members of the Human Rights Council consider it more appropriate not to renew them. It is evident, as was also acknowledged by participants of the workshop, that because of the new geographical distribution of seats it will be even more difficult to establish new or maintain already existing country-specific special procedure mandates than it was before.

3.2.2 Selection and appointment of mandate-holders

The participants of the workshop learned that the institution-building package adopted by the Human Rights Council in June 2007 emphasizes, perhaps surprisingly, more the qualities and the selection of mandate-holders than the review of the special procedure mandates themselves.

Under the previous system, the Chair of the Commission on Human Rights appointed a special procedure mandate-holder after having consulted the Commission's Bureau and the regional groups. Despite the possible lack of sufficient transparency of this previous procedure, governments that emphasize the importance of expertise, independence and impartiality of mandate-holders opposed, during the reviewing process, any proposals that would have created a system according to which the Human Rights Council would have elected a special procedure mandate-holder.45

The procedure for the selection and appointment of a special procedure mandate-holder as agreed upon in June 2007 provides for a system where the appointment is still made by the President of the Human Rights Council, but with considerably more political control and subject to approval by the Council compared to the previous arrangement.

45 These governments were of the opinion that the best way to ensure the expertise and independence of the mandate-holders would be if the appointment was made by the High Commissioner for Human Rights.

The agreement also contained the welcomed provision that an individual holding a decision-making position in government, which clearly gives rise to a conflict of interest with the responsibilities inherent to the special procedure mandate, is excluded. The provision states also, however, that also an individual who holds a decision-making position "in any other organization or entity which could give rise to a conflict of interest" shall also be excluded.

This provision can, it was noted at the workshop, lead to the exclusion of many individuals working for non-governmental organizations. This is the case although it is difficult, albeit not impossible, to see when or how the interest of a non-governmental organization would give rise to such a conflict of interest.46

3.2.3 The new code of conduct: the least harmful among really bad options

Concern was expressed over the code of conduct for special procedure mandate-holders of the Human Rights Council. The code of conduct as adopted as part of the institution-building package represents a negative development in respect of the independent and effective functioning of the special procedures. In addition to the possible restrictions concerning the free use of sources by the special procedures, it was noted that the principle was maintained in the code according to which those governments subject to scrutiny may regulate the behaviour of those conducting the scrutiny. This, as was noted, is reflected in article 1 of the code of conduct which states that "[T]he purpose of the present Code of Conduct is to enhance the effectiveness of the system of special procedures by defining the standards of ethical behaviour and professional conduct that special procedures mandate-holders of the Human Rights Council…shall observe whilst discharging their mandates."

It was, nonetheless, noted that the code of conduct should not be considered that catastrophic.

The first draft of the code of conduct that had been submitted by the African Group in March 2007 would have caused much more damage by restricting the independent conduct of the special procedure mandate-holders. The version finally agreed upon is, in this respect, comparatively harmless.

Responding also to the concern expressed, it was noted that the code of conduct as adopted by the Human Rights Council in June 200747 should not be seen as restricting the work of the special procedures. It was noted that the code of conduct in fact allows more freedom than a serious human rights investigator should allow him- or herself. The adopted version of the code of conduct contains, however, the unfortunate provision according to which special procedure mandate-holders "shall address all their communications to concerned Governments through diplomatic channels unless agreed otherwise between individual Governments and the Office of the High Commissioner for Human Rights".48 This, as was also underlined at the workshop, is a regrettable development. One of the strengths of the procedure of urgent appeals has been precisely the possibility of mandate-holders to contact directly those best placed within a concerned administration requesting for immediate action.

The requirement that also all urgent appeals must be communicated through diplomatic

46 In their statement adopted at the thirteenth annual meeting of special procedure mandate-holders in June 2006 on the occasion of the establishment of the Human Rights Council, the special procedure mandate-holders had noted that a requirement in ensuring the independence of mandate-holders is that they "are not in decision-making positions within the executive or legislative branches of their Governments". No mention of other organizations or entities was, in other words, included in this statement. UN doc. A/HRC/4/43, annex II.

47 Human Rights Council resolution 5/2 of 18 June 2007, annex.

48 Article 14 of the code of conduct.

channels may create delays in the transmission of appeals with devastating effects on the individual concerned.

As stated in Article 2 of the code of conduct, the provisions of the code complement the provisions found in the code of conduct adopted by the General Assembly in 200249 despite the fact that, as was also noted, some of the provisions are contradictory with each other.

It was also noted that the previous comparable instrument adopted by the General Assembly in 2002 was at least as problematic as the new code. In addition, together with its explanatory part, the old document was also much more detailed than the new code of conduct. Because participants of the workshop had not come across that governments would have made any reference to the previous code of conduct, it was considered probable, although not certain, that mandate-holders would also in the future be given freedom to work without additional interferences.

It was generally felt that the adopted code of conduct was the least harmful among the bad options presented during the reviewing process. Its impact on the work of the special procedure mandate-holders will only appear over time. Fortunately, the code of conduct is, above all, a failure to all those who want to clip the wings of the system of special procedures.