Selecting Special Rapporteurs

The United Nations High Commissioner for Human Rights (UNHCHR) is currently seeking nominations for Special Procedures mandate positions that will be vacated in July 2011. Several key posts are opening up:

• the position of Independent Expert on Minority Issues, held by IntLawGrrls guest/alumna Gay McDougall;
  
• the position of Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, currently held by Martin Scheinin;
  
• the position of Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, currently held by John Ruggie;
  
• and of greatest interest to yours truly, the position of Special Rapporteur on the human rights of migrants, currently held by Jorge Bustamante.

While it's indisputable that these Special Procedures mandate positions are important, they're also more than a bit mysterious. What is a Special Rapporteur, anyway, and what distinguishes one from an Independent Expert? How does anyone get to hold such a position in the first place? Beginning in 2006, the UN Human Rights Council (HRC) has been working to answer these questions and to review, rationalize, and improve the Special Procedures mandates.
The very first Special Procedures mandate was created in 1967, when the UN Commission on Human Rights was confronted with the problem of how to address individual complaints about human rights abuses in apartheid South Africa. The Commission established an ad hoc working group of experts to investigate the situation of human rights in southern Africa, and voila, the Special Procedures mandate was born. In 1975, in response to Pinochet's coup, the commission created an ad hoc working group on the situation of human rights in Chile. Four years later, it set up the first Special Rapporteur to investigate Pinochet's abuses in Chile.
Today, the Special Procedures Mandate-holders have expanded to a dizzying 21 thematic special rapporteurs, 6 thematic independent experts, 4 country-focused special rapporteurs, 4 country-focused independent experts, 5 thematic working groups, and 1 special representative to the secretary-general. In more recent years, more effort has been made to select women experts, with varying degrees of success. Of the 25 special rapporteurs, only 8 are women; of the 10 independent experts, only 3 are women; but of the 20 people on the 4 active working groups, 9 are women.
While some of the thematic mandates and mandate-holders are widely known -- for example, the Special Rapporteur on Torture, Juan Mendez and the Special Rapporteur on Violence against Women, Rashida Manjoo, others are rather more obscure -- the Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation; the Independent expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of human rights, particularly economic, social and cultural rights; and the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of people to self-determination come to mind.
On the question of how to differentiate between the different types of mandate-holders, the UN Office of the High Commissioner for Human Rights (OCHCHR) offers a response that's perhaps a bit opaque to those not fluent in UN-speak:

These different titles neither reflect a hierarchy, nor are they an indication of the powers entrusted to the expert. They are simply the result of political negotiations.

So how is the sausage made? Before 2006, special rapporteurs were generally selected by the chair of the Commission on Human Rights, while independent experts and special representatives to the secretary general were appointed by the Secretary General acting in consultation with UNHCHR.
The process changed in June 2007 with the adoption of Human Rights Council Resolution 5/1, which revised the selection process for all special procedures mandates. The Resolution lays out general criteria "of paramount importance" in the nomination, selection, and appointment process: expertise, experience, independence, impartiality, integrity and objectivity. It suggests a focus on gender balance and equitable geographic representation, and requires that upcoming vacancies be publicized.
Nominations for mandate-holders can come from any one of a number of groups: governments; regional groups working within the UN human rights system; international organizations; non-governmental organizations; other human rights bodies; and individuals. The OCHCHR is responsible for maintaining a public list of eligible candidates collected from this process.
A consultative group whose members are appointed by regional groups working within the UN human rights system then reviews this list, and may consider additional nominations only in exceptional circumstances. The consultative group provides the President of the HRC with a short-list of the most viable candidates.
Following broad consultations, the HRC President in turn whittles down the list to one candidate for each vacancy, and circulates this list to member states two weeks before the meeting in which the appointments are discussed. The HRC must approve the appointments on the President's list in order for them to go forward. The mandate-holders may serve no more than two terms of three years each.
The deadline for submission of nominations for this year's vacancies ends on Monday, so it's not too late to ensure that your voice is heard in the selection process!

Human Rights and Intelligence Agencies

I've just come across a report on the role of intelligence agencies in the fight against terrorism filed last month by Prof. Martin Scheinin, U.N. Special Rapporteur on the promotion and protection of human rights while countering terrorism. His title's a mouthful and the mandate well more than a handful, but Prof. Scheinin nonetheless has pulled together a remarkable document. Apart from its legal analysis of the human rights implications of conferring broader powers on, and increasing cooperation between, intelligence agencies, namely that lack of oversight and political and legal accountability has facilitated illegal activities by intelligence agencies, the report provides some practical examples as to how nations faced with security threats have nonetheless maintained human rights standards in their intelligence agencies.
So, for example, the Special Rapporteur recommends the establishment of a specific and comprehensive legislative framework that defines the mandate of any intelligence agency and clarifies its special powers to ensure accountability, and notes that the Dutch have done just this by promulgating a law containing very detailed provisions governing each investigative technique that Dutch intelligence may use. Prof. Scheinin lauds the use of independent permanent offices (inspectors-general, judicial commissioners, and the like) to review intelligence agency compliance with human rights obligations, and notes that countries such as Canada and South Africa as well as several European countries have done so. He further notes the importance of a legislative oversight body that can hold the executive branch and its agencies accountable to the general public. As an example, the Special Rapporteur cites Norway, the mandate of whose parliamentary oversight body has:

an explicit human rights purpose, namely "to ascertain and prevent any exercise of injustice against any person" and to "ensure that activities are kept within the framework of statute law, administrative or military directives and non-statutory law". Furthermore, the parliamentary oversight committee is composed of seven members, who are appointed by Parliament but who don’t necessarily have political affiliations. In this way the committee cannot be abused for party political games, a high level of expertise is guaranteed and the credibility of the expert-members is assured. The members are supported by a secretariat of three lawyers and one secretary who all have security clearance. The members have the power to compel the production of evidence to the committee concerning all matters experienced in the course of their duties. In pursuing its duties, the committee has access to the archives and registers, premises, and installations of all branches of the executive and the intelligence agency.

There are of course many negative examples of worst human rights practices in intelligence agencies, and Prof. Scheinin does not shy away from naming names in that regard.

One of his final recommendations particularly hit home with me, as it's a suggestion I've made before with regards to the Department of Homeland Security, namely that

intelligence agencies develop internal and international training programmes in how to comply with human rights in their operations. Such training should be based on the idea that compliance with human rights is a part of professional qualifications, and a source for professional pride, for any intelligence officer.

The report concludes by suggesting that the Human Rights Council create and adopt guidelines for human rights compliance and best practices by intelligence agencies, a development that would offer more concrete steps towards a promising balance between human rights and national security. Well worth a read!

Hat tip to John Necci, Director of the Temple Law Library