Creation, Institutionalization, and Development of Public and Confidential Special Procedures
Creation, Institutionalization, and Development of Public and Confidential Special Procedures
Abstract and Keywords
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.
The instigation, design, and establishment of Special Procedures are arguably the most potent legacy among many of the activities and achievements of the erstwhile UN Commission on Human Rights. The history of how Special Procedures were first envisaged, considered, mooted, negotiated, and created impacted the evolution of the Commission and the internationalization of human rights. Equally important, for those interested in tracking the development of post–Second World War international relations, the trajectory of these mechanisms provide 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, at and 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 shared origin of public Special Procedures and the design of mechanisms for handling complaints addressing human rights violations that can result in the establishment of confidential Special Procedures are scarcely represented in the literature, especially in comparison with the development of other aspects of the mechanisms and the substantive content (p.8) of human rights. One of the primary reasons for this deficit is that any comprehensive coverage of the origin, characteristics, and current structures of Special Procedures requires that the confidential complaint mechanisms and Special Procedures are addressed simultaneously. In addition, the ad hoc nature of their establishment against political realities of the time led to a non-linear history that is often difficult to classify.
Special Procedures trace their origin to the first ad hoc monitoring bodies established by the Commission on Human Rights to examine specific human rights violations. At their inception, it is inconceivable that the governments represented in the Commission had any motivation for creating a new category of human rights monitoring bodies. Instead, state members initiating this process were responding to specific situations of human rights violations relying on the competence, agreed by states in 1967 that the Commission should address gross and systematic violations of human rights. In the following years, subsidiary bodies were established to either investigate and report on the situation of human rights in a country or to study a phenomenon of violations of human rights worldwide that were either perceived or presented as being systemic and/or widespread. The autonomy enjoyed by the first mandate holders in deciding their methods of works resulted in significant diversity of methods, and the absence of standardized United Nations rules of procedures for fact-finding missions was an additional factor in the difficulty of studying and presenting these mechanisms. The resolutions creating or renewing such mandates, based on political decisions, were understandably vague leaving plenty of margin for interpretation and the determination of work practices. The activist leanings of mandate holders, the contexts of each procedure, and the relative differences in perspectives of the holders were a further contributing factor for widely differing methodologies adopted.
The absence of an agreed framework coupled with inconsistency in their operations means that any analysis of the historical development of Special Procedures needs to study the creation of each mandate individually. This changed to a certain extent when mandate holders and the Secretariat of the United Nations began to support the activities and coordinate the work leading up to their designation and treatment as a sui generis category within the UN institutional framework.
The following sections will focus on the political coordinates that explain the creation of the Special Procedures as subsidiary bodies of the former Commission on Human Rights. The first section describes the relevant geopolitical coordinates that determined the absence of a specific human rights (p.9) main organ in the institutional design of the United Nations. It outlines the main features and functioning of the Commission on Human Rights and the Human Rights Council that came to replace it in 2006. This framework propitiated a timid approach to human rights and a self-denial of competence to address human rights violations for over two decades. The decolonization process transformed the international community and the United Nations in particular, as reflected in the composition of the UN bodies, including the Commission on Human Rights. It also effected the obsolescence of the doctrine of non-competence, resulting in the creation of the first Special Procedures focusing on specific territories. The new-found diversity of political views within existing UN organs led to difficulties in gaining clear majorities toward specific action. When it became impossible to obtain a majority of votes within the Commission to scrutinize particular countries for human rights violations, a new approach was developed to investigate specific situations of human rights.
The immediate antecedent to this was the attempt by some states to negotiate the competing interests of other states, motivated by an emerging and increasingly vocal global civil society, that were becoming adept at operating within the UN machinery. That pressure to act in the face of systematic human rights violations led to the establishment of the so-called “Charter-based” bodies, which in turn sowed the seed for a system of public Special Procedures that continues to coexist with a confidential complaint procedure.
2. The “Human Rights Pillar”: Unintended Creation of Special Procedures
When the first mechanisms we now call Special Procedures were established, state members of the Commission on Human Rights did not intend to create a new category of human rights bodies. The first Special Procedures were portrayed as “fact-finding” missions by the United Nations1 and by the scholarship at the time,2 or as a “1235 (p.10) procedure.”3 It took twenty years for the Commission on Human Rights to broaden its scope of action vis-à-vis human rights violations and a further decade to confirm it had competence to establish monitoring mechanisms to investigate situations of gross violations of human rights. This delay is explained by the general reluctance of the founding states of the United Nations in guaranteeing the same level of relevance to human rights as for other objectives of the Organization despite their prominence in the UN founding documents. A key element to overcome was the provision of Article 2(7), which guaranteed “exclusive state sovereignty” on all matters that fell within “the domestic jurisdiction of States.” For a fledgling global body to place restrictions on its members was a challenge, especially in light of the demise of the United Nations’ predecessor, the League of Nations.
A. The “Missing” UN Main Body: From Commission to Council
The reluctance to create strong human rights provisions arises despite a clear articulation of the so-called “three pillars” of the United Nations, meant to reflect the main purposes of the Organization as enshrined in the UN Charter. These were identified as: (1) the promotion and protection of human rights; (2) development; and (3) maintenance of international peace and security. It is, however, well known that the exclusive group of states that prepared the founding documents of the United Nations at Dumbarton Oaks were focused on creating a collective security arrangement, with human rights issues, especially when occurring within the domestic jurisdiction of states, ranking extremely low among their priorities.4 It was the role played by non-governmental organizations from the United States of (p.11) America and Latin American countries, that advocated for the adoption of a declaration that would define a catalogue of human rights, that proved decisive in strengthening the provisions of the Charter on human rights during the San Francisco Conference.5 Despite some reluctance, the preamble and substantive articles (Articles 1.3, 55 c) and 56) of the UN Charter reference human rights, while other articles contain provisions of an institutional nature (Articles 13.1.b), 60, 62.2, and 68) to support their development. The decision to establish two main bodies of the United Nations to address development (the Economic and Social Council) and peace and security (the Security Council) was not replicated for the human rights pillar. Instead, the creation of a UN human rights body was delegated, under Article 68 of the Charter, to the Economic and Social Council (ECOSOC).6 State founders were equally unprepared to agree on a catalogue of rights,7 a significant reflection of their disinclination to accept any proposal that had the potential to erode their sovereignty through the establishment of a regime that might have implied conferring the United Nations with powers to intervene in domestic affairs of the member states.8 The original decision of the Commission of Human Rights not to address and engage with human rights violations, adopted in the early days of the United Nations, has to be understood in this context.
It is perhaps a reflection of the ambitious nature of the UN mandate, instigated and driven by divergent views of states, civil society organizations, and other relevant actors, that a need to reform the Organization has loomed over it since its very inception. This led one author to consider the articulation of a need for reform as one of the “primary products of the UN system.”9 Over the seven decades of its existence there have been several waves of reform that have directly impacted the growth and development of Special Procedures, as will be analyzed in detail in chapter two. Among them, the most dramatic reform culminated with the decision, in 2006, to (p.12) terminate the Commission on Human Rights altogether, and to replace it with a Human Rights Council.10 One of the most significant differences between the former Commission and the Council lies in their institutional positioning within the United Nations. Instead of being a subsidiary organ of ECOSOC, the Human Rights Council is a subsidiary organ of the General Assembly. In technical terms this “elevated” human rights issues bringing them closer to the development and peace and security pillars, in having “principal organ” status at the United Nations. However, this “upgraded” position was considered more a reflection of the hope expressed by then Secretary General Kofi Annan, who instigated this reform.11 It found little political support among states and commentators.12 Following a complex process of reform13 the General Assembly confirmed the subsidiary status of the Human Rights Council in 2011, but decided to reconsider the question of whether to maintain such status between 2021 and 2026.14 The different status conferred to the human rights pillar is reflected in the location of the Human Rights Council and the main headquarters of the Office of the High Commissioner for Human Rights (OHCHR), based in Geneva. A change of status may have involved migrating the Secretariat supporting human rights mechanisms as well as the Human Rights Council to New York where the other main organs of the United Nations have their principal presence. There was some reticence, however, that such a move could involve an “image problem.”15
The current membership of the Human Rights Council consists of governmental representatives of forty-seven instead of the fifty-three member states represented in the Commission. In order to fulfill the criteria of equitable geographical distribution, the Council was established with reduced representation of Western and Latin American states in favor of a larger (p.13) presence for Asian and African states.16 The antagonistic attitude of these regional groups towards Special Procedures raised well-founded fears of the impact of the new composition of the Council in relation to the future of these mechanisms.17 Unlike the Commission, that used to meet once a year, the Council meets at least three times every year for a total period of no less than ten weeks. Other new features of the Council include a reduced ratio of states required to convene special sessions when an emergency arises (one-third instead of a majority), the creation of the Universal Periodic Review, and a more sophisticated selection process of state members. Like its predecessor, the Human Rights Council’s mandate includes promotional and protective human rights powers. Its meetings are public and any member states, observer states, and non-governmental organizations with consultative status before ECOSOC can participate in the discussions.
In addition to public discussions, the Human Rights Council can approve resolutions and decisions with different purposes, including: (1) making recommendations with regard to the promotion and protection of human rights to state members, the General Assembly, or its subsidiary bodies; (2) determining the provision of advisory services, technical assistance, and capacity-building; and (3) creating subsidiary bodies to assist the Council in performing its tasks. The Human Rights Council inherited the main mechanisms to monitor human rights performance from the Commission, with the confidential complaint procedure and Special Procedures among them. In addition, the Human Rights Council is required to conduct assessments of the situation of human rights in every state of the world under the Universal Periodic Review mechanisms operative since 2008.
The idea that human beings deserve special legal protection lies at the foundation of the modern conception of the system of promotion and protection of human rights at the domestic, regional, and universal levels. It is therefore unsurprising that the creation of human rights mechanisms was accompanied by demands for the widening of their jurisdiction to the subjects it is meant to serve: the individual rights-bearers, whose inherent dignity and worth the system has promised to uphold. This seemingly simple task was in fact complicated due to the manner in which international law itself evolved: as primarily existing to regulate the activities between states, with individuals within the state considered as falling within their exclusive jurisdiction. Any “international” activities that expressed concern or proposed solutions for these subjects would necessarily have to penetrate the layer of state sovereignty, a key facet of statehood, and one guarded jealously, largely reinforced with the experience of colonization that was still alive at the time of the creation of the United Nations. The accepted subject-hood of individuals, and more importantly a legitimacy toward concern for their rights, involved a complex trajectory that has been discussed elsewhere. Suffice to say that despite its lofty expression as an ideal, it took a long time for the United Nations to open its apparatus to individuals.
On February 16, 1946, the ECOSOC created the UN Commission on Human Rights complying with the mandate contained in Article 68 of the UN Charter.18 Originally composed of nine members, the Commission was established with the main task of submitting:
proposals, recommendations and reports to the Council regarding: a) an international bill of rights; b) international declarations or conventions on civil liberties, the status of women, freedom of information and similar matters; c) the protection of minorities; d) the prevention of discrimination on grounds of race, sex, language or religion.19
This mandate was extended to “any other matter concerning human rights” in June 1946.20 The membership of the body was enlarged to eighteen members, (p.15) a number that grew over the years to ensure an equitable geographical representation. When the Commission was replaced by a Human Rights Council in 2006, it had grown to consist of fifty-three states members.21
During its second session in 1947, the ECOSOC created the Sub-Commission for the Prevention of Discrimination and the Protection of Minorities, renamed the Sub-Commission on the Promotion and Protection of Human Rights in 1999 to better reflect the scope of its work.22 This body of experts significantly influenced the creation and practice of Special Procedures.23 Often perceived as the rebel daughter of the Commission, it was replaced in 2016 by an Advisory Committee consisting of eighteen experts with the mandate of functioning as a think tank for the Council.24 This meant, in practice, a curtailment of the Sub-Commission mandate that was accepted as a lesser evil than any allowance toward the implementation of other proposals seeking to significantly undermine the competences and independence of Special Procedures. This development also signals the fragility of expert bodies daring to overstep the confines of their mandates. The political majority required to create and renew Special Procedures has nonetheless proven to be effective in protecting them from a similar fate.
In 1947, ECOSOC endorsed the view of the Commission of Human Rights by which it declared that it had “no power to take any action in regard to any complaints concerning human rights.”25 This was perceived as a regression in comparison to the minority petitions system established by the League of (p.16) Nations26 as it denied a right of petition to individuals deriving directly from the UN Charter.27 ECOSOC was also effectively contradicting itself: it was only a year earlier that it had expressed the view that the Commission’s role was to:
assist the appropriate organs of the United Nations in the task defined for the General Assembly and the Economic and Social Council in Articles 13, 55, and 62 of the Charter, and that it might aid the Security Council in the task entrusted to it by Article 39 of the Charter, by pointing to cases where violation of human rights may constitute a threat to the peace.28
Several initiatives to overturn this self-denial stance, led by the Sub-Commission on the Prevention of Discrimination and Protection of Minorities,29 the Sub-Commission on the Freedom of Information and the Press,30 and the Secretariat,31 proved unsuccessful in shifting this position at the time.
Within the United Nations, the only individual complaint procedure in force established under the authority of the UN Charter (Article 87) was operated by the Trusteeship System,32 the successor to the mandate system under the League of Nations.33 From 1961, the so-called Committee of the (p.17) 24 (Decolonization Committee) monitored the situation of human rights in non-self-governing territories using individuals as sources of information. The Special Committee on Apartheid, established in 1962 by the General Assembly, also dealt with petitions.34 However the individuals benefiting from access to these international mechanisms were very limited.35
While ECOSOC Resolution 75 (V) declared a lack of competence in dealing with allegations of human rights violations, it also sought to establish a symbolic procedure to process the thousands of communications transmitted by individuals concerning alleged violations of human rights that had begun to arrive at the Secretariat since the creation of the United Nations. The scattered data available fails to provide an insight of the number of communications received by the Secretariat. For instance, the Commission on Human Rights reported that over 25,000 communications were referred to it between April 3, 1951, and May 7, 1952, compared to 2,118 communications received during the period May 7, 1952, to March 7, 1953.36 Following several amendments, a procedure to handle communications was established by ECOSOC Resolution 728F (XXVIII) of July 30, 1959.37 Defined by John Humphrey, then Director of the United Nations Division on Human Rights, (p.18) as “the most elaborate wastepaper basket ever intended,”38 the Secretariat compiled a public list of communications dealing with human rights “principles” and a confidential summary of communications concerning human rights violations.39 States concerned received a copy of the human rights communications and were provided with the opportunity to reply. The authors of human rights communications were informed that their communication was to be handled in accordance with this procedure, with a reminder that the Commission had no power to take any action regarding any complaint concerning human rights.40 At the end of each session, the Commission took note of the receipt of the compiled lists of communications and restated its position as being one where no action was possible, until 1959, when this formality was finally dropped.41
This way of circulating communications became the basis of the confidential “1503 procedure,” pertaining to the number of the 1970 ECOSOC Resolution 1503 (XLVIII) creating it.42 The 1503 procedure, explained later, was reformed amid the wider reforms undertaken in 200043 and, following the creation of the Human Rights Council, was replaced by the current “complaint procedure.”44
(p.19) Geopolitical factors were decisive in making the non-competence stance of the Commission unsustainable. Key among these was the decolonization process, which dramatically changed the composition of the United Nations. Between 1945 and 1960, forty-five countries and 800 million persons (a quarter of the inhabitants of the planet) achieved independence from colonial rule.45 By 1967, 57 percent of the 127 UN member states were relatively new Asian and African states.46 The new “Third World” majority at the United Nations supported the creation of human rights monitoring mechanisms. The contribution of newly independent states to the change of direction of the United Nations toward human rights is often downplayed or explained as motivated by the risk of marginalization as second-rate countries with consequent reduction of foreign aid.47 Whatever the motivations driving their political agendas, Asian and African states have always been key actors in shaping human rights mechanisms. This reality is obscured by relatively simplistic North versus South discourses on human rights that appear to rely on imbedded assumptions that are rarely supported by evidence.
Between 1960 and 1963, the General Assembly created a Special Committee to monitor the implementation of the Declaration of Independence to Colonial Countries and Peoples48 with competence to carry out its task by employment of all available means.49 It commissioned the second-ever UN fact-finding mission concerning the observance of human rights50 to investigate allegations of human rights violations of the Buddhist community in (p.20) South Vietnam;51 additionally, it designated a Special Committee on the apartheid policies of the government of South Africa.52 The first “treaty bodies” make their appearance during these years too, with the adoption of the two Covenants on Civil and Political Rights and Economic and Social Rights (1966), as well as the Convention on the Elimination of All Forms of Racial Discrimination (1965). The Commission’s self-denied competence to deal with human rights violations was at odds with other UN bodies, particularly taking into account its role as the main UN human rights institution.
C. Setting the Change of Direction: Resolutions 1235 (XLII) and 1503 (XLVIII)
The unanimous condemnation of apartheid should be considered the decisive instigator of the creation of a fact-finding mission, which set the basis for the first “Special Procedure.” The Chairman of the General Assembly’s Special Committee on the Policies of Apartheid of the Government of South Africa called upon the Commission on Human Rights, on February 3, 1947, to carry out an international investigation of charges of torture and ill-treatment of South African prisoners and other persons in police custody.53 This request required the Commission to claim competence for such action, overturning its twenty-year denial of such powers.
In March 1967, the Commission appointed an Ad Hoc Working Group of Experts on the situation of human rights in southern Africa54 and a Special Rapporteur on the politics of apartheid.55 The Commission also sought authorization from its parent body, ECOSOC, to deal with other situations of human rights violations in the future.56 The authorization became effective (p.21) that same year with the adoption of ECOSOC Resolution 1235 (XLII). The text of Resolution 1235 (XLII) restricted the sources of information available to the Commission to those contained in the communications listed by the Secretary General pursuant to ECOSOC Resolution 728 F (XXVIII) of July 30, 1959. However, a particular reading of the 1235 resolution in conjunction with others approved by the Commission on Human Rights, the General Assembly, and ECOSOC, as well as the public nature of the annual sessions of the Commission on Human Rights, privileged an interpretation according to which the Commission—and the former Sub-Commission for the Promotion and Protection of Minorities—were authorized to use all sources of information to investigate situations of human rights violations. This interpretation was contested and the object of several legal analyses within the United Nations, but this reading of the Resolution 1235 (XLII) prevailed and was decisive in terms of the birth of two different procedures, one public and one confidential, to deal with allegations of human rights violations: the so-called “1235” and “1503” procedures.57
The confidential information included in the list prepared according to Resolution 728 F (XXVIII) was processed within the framework of the so-called 1503 procedure. At the time, the rules contained in Resolution 1503 were understood as creating “the first procedure within the framework of the United Nations under which private individuals and non-governments [could] raise complaints about violations of human rights within a State and [had] those complaints investigated and reported upon by an impartial international body.”58 All the other sources of information became the object of public scrutiny, either in the context of the public annual sessions of the Commission on Human Rights or under what would become known as the system of Special Procedures.59
Resolution 1503 (LXVIII) was meant to spell out the details of the procedure mandated in the 1235 resolution, not to create two different mechanisms. The possibility of both treatments was a positive step derived from the interpretation referred to earlier. However, early accounts of the (p.22) approval of Resolutions 1235 (XLII) and 1503 (XLVIII) reflect an understanding that communications could only be dealt with under the confidentiality of the 1503 procedure. In the words of Howard Tolley:
The unintended result was the creation of two procedures for considering violations—one public, under Resolution 1235, without benefit of the communication—and a separate, confidential procedure for reviewing communications.60
The scope of the 1503 procedure was universal in terms of countries and rights covered by it. Admissibility criteria to submit a complaint were framed by the then Sub-Commission for the Prevention of Discrimination and the Protection of Minorities in its Resolution 1 (XXIV) in 1971.
After its first substantial reform in 2000, the 1503 procedure was renamed as a “complaint procedure” in 2007,61 while retaining its original objective: to reveal a consistent pattern of gross and reliably attested violations of human rights. Thus, while the mechanism is largely nourished by individual complaints, it does not seek to redress individual cases but rather to address patterns of violations, in cooperation with the state concerned, with the confidentiality of the procedure meant to facilitate such cooperation. Within that context, individuals submitting complaints act as witnesses and sources of information, rather than victims or/and parties of a process. A possible outcome of this procedure is the creation of new Special Procedures, as explained below.62
3. First Geographic Mandates
In March 1969, the Commission established its second “fact-finding” mission, this time to investigate human rights allegations concerning Israel’s (p.23) violation of the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War, in the territories occupied in the aftermath of the 1968 “Six-Day War.”63 This mechanism was created as a result of the difficulties faced in nominating members of the General Assembly Committee to Investigate Israel Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories.64 Once the Committee became operative, the Commission’s Working Group on the same topic ended its mandate. While many name this body as the “second” Special Procedure created by the Commission, its existence was limited to provisionally replacing a mandate taken over from the General Assembly.65
It was not until 1975 that the Commission addressed another country’s human rights situation, despite attempts made by the former Sub-Commission on Prevention of Discrimination and Protection of Minorities to promote the investigation of other territories in 1968.66 Both the investigation on the policy of apartheid and the occupied Arab territories had been the object of worldwide condemnation, actions by the General Assembly and the Security Council.67 It was thus relatively easy to justify them as not pertaining to the domestic affairs of a state by their own nature and therefore not in open conflict with Article 2.7 of the UN Charter.68 This explains the (p.24) lack of resistance enjoyed by the Commission when it decided the mandates on southern Africa. It is also reflected, in sharp contrast with the highly controversial discussions that have followed the birth and life of every other geographic mandate since, the almost unanimous political support enjoyed by the Commission in relation to decisions addressing this territory, including the designation of a separate point in its agenda or the two-year extension of its mandate in 1969.69
The Commission’s decision to create a Working Group on the situation of human rights in Chile in 1975 signaled a radical change of direction.70 The events instigating its creation were influenced by international outcry and were in parallel to other interventions by the United Nations and regional bodies. Yet unlike the two previous situations, they could not be ascribed to a question of racist policy or decolonization, as those used as the title of Resolution 1235(XLII).71 The situation of human rights violations under scrutiny was clearly one traditionally considered within the domestic affairs of a state. The creation of the Working Group resulted in strong contestation by states of the legitimacy of actions decided by the Commission, and it represents the first example of the political confrontations accompanying the creation of a country-specific mandate to date and the calls for their removal from the system.72
Even among governments supporting the creation of the Working Group on Chile, there was an attempt to present the situation as unique and to highlight that it could not be “used as a precedent for future United Nations (p.25) activities in the field of human rights,”73 although other states supported the idea that the Chilean experience could be extended to other similar situations across the globe.74
In any case, the mandate on Chile opened the door to other geographic mandates, and, in the following years, geographic procedures rapidly extended the scope of their actions around the world. The Commission entrusted mandates to the Secretary General on the situation of human rights in Cyprus (1975),75 Kampuchea (1978),76 and Nicaragua (1979).77 In 1979, it also decided for the first time to use the possibility of public scrutiny—and the appointment of a Special Rapporteur—to study the situation of a country that was being investigated at the time under the confidential 1503 procedure (Equatorial Guinea).78 In 1978, the General Assembly provided the final endorsement needed, settling the Commission’s competence to create geographic mandates. After acknowledging and welcoming the work carried out by the Ad Hoc Working Group on the Situation of Human Rights in Chile, it called upon the Commission to use it as basis for its future actions when dealing with consistent patterns of gross violations of human rights.79
The endorsement of the General Assembly confirmed the merits of the Special Procedures as a tool to guide future actions of the Commission at a crucial time. The adoption of Resolution 1235 (XLII) was facilitated by the absence of any other body able to deal with human rights violations within the United Nations. The approval of Resolution 1503 (XLVIII) had already prompted some governments to argue that every situation and communication on human rights violations should follow the confidential route (p.26) established in 1970.80 After all, such states argued that Resolution 1235 (XLII) only provided competence, not a procedure to deal with human rights violations—and as seen earlier, the letter of the text seemed to restrict sources to those contained in Resolution 728F(XXVIII).81 The creation of public mandates on southern Africa and support for this action prevented the proposals to prosper. However, it was the decision to create the Chilean mandate that ended the discussion on whether two routes of dealing with human rights violations—one public and one confidential—had been created. By 1978, several human rights treaties had entered into force—significantly the two Covenants on Civil and Political Rights and Economic, Social and Cultural Rights—which raised again the question of the necessity of retaining the mechanisms established by the Commission.82 However, by the time this debate was ignited, Special Procedures were consolidated enough to prevent their removal.
4. First Thematic Mandates
The Commission’s expansion of members in 198083 reinforced membership from the “Non-Aligned” group of countries, which, contrary to some pessimistic prognosis, facilitated the proliferation of geographic mandates and contributed to the creation of the first thematic Special Procedures.84 In a (p.27) remarkable development, oral interventions of non-governmental organizations during the Commission’s sessions referred to any country, whether or not their study was included in the agenda, simplifying the creation of new geographic procedures.85 Special Procedures rapidly became the main focus of the Commission’s agenda with their reports discussed under a growing number of points, consolidating their position in the Organization.
The expansion of territories coming under the scrutiny of the Commission also fueled tensions in what was a particularly dark period of the United Nations’ history. Between 1979 and the mid-80s, the United Nations witnessed an intensification of the Cold War confrontation, a proliferation of new categories of armed conflicts to which it was unable to respond due to the use of Security Council vetoes by the United States and its Allies or the Soviet Union, accusations of application of “double standards,” along with allegations of espionage within the Secretariat (exacerbated by the departure of the Director of the Human Rights Division, Theo van Boven),86 a general disagreement on the role of the United Nations when dealing with human rights, and the claim of involvement in war crimes of a former UN Secretary General, Kurt Waldheim.87 The translation of these conflicts to the Commission’s negotiations resulted in a historic milestone for the evolution of Special Procedures: the creation of thematic mandates.
The situation leading to the creation of the first thematic procedure is well documented, arising in the context of disappearances in Argentina. Under pressure from well-organized civil society organizations, the Commission (p.28) was compelled to react. The Director of the Human Rights Division, Theo van Boven, actively supported campaigns led by the International Commission of Jurists and Amnesty International. Several international organizations had adopted measures on the topic, including UNESCO, the Organization of American States, the 1980 Conference on Women’s Rights, and the sixth UN Congress of the United Nations for the prevention of crime and treatment of offenders.88 The General Assembly, ECOSOC, and the Sub-Commission all called upon the Commission to address the issue.89 However, the accusations of selectivity in the choice of countries and the diplomatic maneuvers of the Argentinian government, then under scrutiny by means of the confidential 1503 procedure, were impossible to overcome in order to reach the necessary votes to create a public geographic mandate.90 A different strategy was then followed, and the proposals for a Special Procedure on Argentina were replaced by proposals for the creation of a Working Group to study the phenomenon of disappearances taking place anywhere in the world. The government targeted was notorious, and the draft resolution circulated to establish the working group was known as the “Argentinian Resolution.”91 Still, the lack of reference within the text of the resolution to Argentina, allowed the adoption of Resolution 20 (XXXVI) of February 29, 1980, by which the Commission decided to appoint, for a year, a Working Group to examine questions relevant to enforced or involuntary disappearances of persons. A few months later, the Sub-Commission dared to submit a proposal for a specific mechanism, similar to habeas corpus to deal with particularly urgent cases of disappearances.92 The proposal was not approved but inspired future work of the Working Group on Enforced Disappearances.
Following this example, many other Special Procedures with thematic mandates were created. Most are still in force, although some have changed (p.29) denomination or composition over the years. The short existence of the Special Rapporteur on human rights and mass exoduses, created in 1981 for a year and not renewed, is an exception among thematic Special Procedures that have otherwise survived indefinitely once established.93
5. Confidential Special Procedures
Similar to “Public Special Procedures,” “Confidential Special Procedures” are held by independent experts to monitor the situation of a state and report to the Human Rights Council under the confidentiality of the complaint procedure.94 The Commission on Human Rights created several such confidential Special Procedures before this competence was expressly acknowledged by ECOSOC95 and, subsequently, by the Human Rights Council.96 For instance, a confidential Special Procedure was created in 2004 to address the situation of human rights in Uzbekistan.97 In 2005, the Commission extended the mandate of the independent expert (Michèle Picard), and, after considering her report,98 the newly created Human Rights Council99 decided to discontinue the consideration of the human rights situation in Uzbekistan in 2007.100 In 1999, the Commission terminated similar confidential Special Procedures on Chad, Armenia, and Azerbaijan.101 Douré M’Bam Diarra (1996) and Emma Aouij (1996–7) were appointed independent experts on the situation of human rights in Chad.102 The mandate was terminated (p.30) in favor of providing advisory services and technical cooperation to the country.103 Hugh Templeton was appointed independent expert on the situation of human rights in Armenia and Azerbaijan in 1996,104 but his mandate was short-lived since the Commission decided, the same year, to discontinue consideration of these territories under the 1503 procedure.105 Confidential Special Procedures have also existed, in the past, concerning the situation of human rights in Uganda (1978–81)106 and Haiti (1981–7).107 On several occasions, the Commission requested the Secretary General to designate the expert or to exert his good offices with the government concerned.108
The confidentiality of the complaint procedure has made it difficult to know whether an independent expert has been appointed to examine a territory. The official information available is restricted to public statements made by the Chair of the Human Rights Council regarding the territories examined under this mechanism,109 compiled and published by the OHCHR.110 (p.31) To the author’s knowledge, the Human Rights Council has not established any new confidential Special Procedure since its creation in 2006.
In some instances, the decision to discontinue reviewing the situation of the state concerned under the confidential procedure in favor of taking up public consideration of the matter has resulted in the creation of new geographic public Special Procedures. Equatorial Guinea (1979) was the first country subjected to this treatment due to its lack of cooperation with the Commission.111 An emblematic example of the relationship between the 1503 (now complaint) procedure and Special Procedures is represented by the manner in which the Commission tackled the situation of human rights in Haiti. Following the creation of a confidential Special Procedure to examine Haiti in 1986, the report submitted by the appointed Special Representative was later made public in 1987 by the same resolution deciding the creation of a public Special Procedure.112 Other public Special Procedures, preceded by an examination of the country under the confidential 1503 procedure, include: Afghanistan, Liberia, Myanmar, Rwanda, Chile, Democratic Republic of Congo (Zaire), El Salvador, Guatemala, Iran, Somalia, Sudan, and Uzbekistan.113 In the lifetime of the Human Rights Council, Eritrea has also become a country examined under a public Special Procedure as an outcome of the complaint procedure.114 Despite numerous voices demanding its elimination,115 it has endured for half a century, revealing states’ support (p.32) for its confidential nature and the belief that states may be in a better position to present their viewpoint without being exposed to public pressure while remaining under the threat of a public investigation if they do not cooperate with the procedure.116
The status conferred to human rights within the United Nations has determined the development of Special Procedures. The diminished importance of human rights compared to the development and security agenda facilitated the self-denied competence to discuss human rights violations based on Article 2(7) of the UN Charter. Other decisions that might have looked less relevant at the time, such as locating the meetings of the Commission on Human Rights and the Secretariat supporting human rights mechanism in Geneva, rather than New York, contributed to detaching the human rights mechanisms from the main organs of the Organization.
The decision to overturn the self-imposed non-competence doctrine of the Commission was intrinsically linked to emerging global political consensus on the need to address specific human rights violations that were already under the radar of the Security Council and the General Assembly, gradually eroding arguments based on the principle of non-intervention in the domestic affairs of states. This consensus led to the creation of ad hoc mechanisms that needed a decision (ECOSOC Resolution 1235) that conferred the eventual competence of the Commission on Human Rights to deal with human rights violations. The Commission’s change of direction in 1967 was not, however, accompanied by the adoption of general rules for the establishment of similar mechanisms in the future nor the approval of rules to guide their operationalization. The Commission took a further three years to articulate a procedure, enshrined in ECOSOC Resolution 1503 (XLVIII). (p.33) As many advocated at the time, the procedure laid out in Resolution 1503 constituted the agreed confidential mechanism to deal with all communications related to human rights violations. However, the simple majority rule governing the adoption of decisions by the Commission on Human Rights defied this logic.
When enough states endorsed the creation of a different monitoring mechanism focusing on specific countries with the proviso of reporting their findings publicly, they were created. Thus random political decisions resulted in the establishment of two differentiated means of dealing with human rights violations: one confidential, following the rules of the Resolution 1503 (XLVIII); and one public, which could culminate with the creation of a monitoring body, a Public Special Procedure for which no general rules existed or were established at the time. The term “Special” was used to denote its temporary/ad hoc, nature. Resolution 1503 was also interpreted as allowing the establishment of Special Confidential Procedures that could become public.
The impossibility of garnering enough votes to address the situation of human rights in specific countries acted as the eventual detonator for the establishment of the first of the thematic procedures. When human rights treaty monitoring bodies entered the scene, some states sought to remove the Special Procedures, resuscitating arguments based on Article 2.7 of the Charter and viewing these as superfluous. They were unsuccessful, however, and since then, the only obstacle standing in way of the creation of a new Special Procedure is the absence of enough votes in the Human Rights Council. It is thus unsurprising that several attempts to rationalize the number of Special Procedures have failed.117 The successive enlargement of the composition of the former Commission and current composition of the Human Rights Council, with greater representation of Asian and African states, has facilitated the growth of thematic mandates, particularly those focused on economic, social, and cultural rights, collective rights, and solidarity rights.118 Countries belonging to the African and Asian Group, among others, have been staunch defenders of removing country mandates and have put forward this view repeatedly during the many processes of reform that have focused on Special Procedures. Their initiatives have been partially successful. The percentage of country mandates compared to thematic (p.34) mandates has declined since 1997. However, it appears unlikely that country mandates will disappear as long as states continue to table resolutions for that purpose, while remaining effective in gathering sufficient support from other members of the Human Rights Council. This modus operandi, as it is often highlighted, cannot guarantee that the seriousness of a human rights violation will be the main indicator leading to the creation of a Special Procedure nor that similar situations of violations will be addressed in the same manner. Nonetheless, there is robust evidence to demonstrate that the former Commission and current Council’s decisions target particularly serious situations of human rights violations. While some may escape scrutiny, the situations under consideration are not solely politically motivated but are based on reported and verified facts.119 Therefore, not every situation of human rights violations that deserves international scrutiny is under the radar of the Human Rights Council, but all those that are warrant it.
(1) See Further promotion and encouragement of human rights and fundamental freedoms including the question of the programme and methods of work of the Commission, UN Doc. E/CN.4/1273 (1 December 1977), paras. 38–41.
(2) See, e.g., Robert Miller, “United-Nations Fact-Finding Missions in the Field of Human Rights” Australian Year Book of International Law (1970–73): 40; Stephen B. Kaufman, “The necessity for rules of procedure in ad hoc United Nations Investigations” 18 (4) The American University Law Review (1969): 739; and Egon Schwelb and Philip Alston, “The Principal Institutions and Other Bodies Founded Under the Charter” in Vasak (ed.), The International Dimensions of Human Rights (UNESCO, 1982, vol. 1): 232, 294–6.
(3) The terminology “1235 procedure” was used to refer to all mechanisms created by the UN Commission on the basis of the competence contained in Resolution 1235 (XLII) distinguishing between “public general procedures” and “public special procedures”; see, e.g., José Antonio Pastor Ridruejo, “Les procédures publique spéciales de la Commission de Droits de l’Homme des Nations Unies” 228 R.C.A.D.I. 183 (1991): 209; Henry Steiner and Philip Alston, International Human Rights in Context. Law, Politics, Morals. Text and Materials (2nd ed. Oxford University Press, 2000): 620–3.
(4) Mary A. Glendon, “The Forgotten Crucible: The Latin American Influence on the Universal Human Rights Idea” 16 Harvard Human Rights Journal (2003): 27, 27–8.
(6) See Louis B. Sohn, “The Human Rights Law of the Charter” 12 Texas International Law Journal (1977): 129; Eibe H. Riedel and Jan-Michael Arend, “Article 55(c)” in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (2nd ed. Oxford University Press, 2002).
(7) Paolo Wright-Carozza, “From conquest to constitutions: retrieving a Latin American tradition of the idea of human rights” 25(2) Human Rights Quarterly (2003): 281.
(8) As reflected in Article 2.7 of the UN Charter: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter ( . . . ).”
(9) Edward C Luck, Reforming the United Nations: Lessons from a History in Process (Academic Council on the United Nations System, 2003): 2.
(10) GA Res. 60/251, 15 March 2006.
(11) On the recommendation to establish the Human Rights Council as a main organ of the UN, see Note transmitting report of the High-Level Panel on Threats, Challenges and Change, entitled “A More Secure Word: Our Shared Responsibility, UN Doc. A/59/565; see also In Larger Freedom: towards development, security and human rights for all: Report of the Secretary-General: Addendum: Human Rights Council: Explanatory Note, UN Doc. A/59/2005/Add.1, 23 May 2005, para. 183.
(12) See Summary of the open-ended informal consultations held by the Commission on Human Rights pursuant to Economic and Social Council decision 2005/217 prepared by the Chairperson of the 61st session of the Commission, UN Doc. A/59/847-E/2005/73, 29 July 2005, paras. 12, 27–8, 51, 57, and 63.
(14) GA Res. 65/281, Review of the Human Rights Council, 17 June 2011, para. 3.
(15) See Universal Rights Group, Vision 2021—What is the General Assembly’s 2021–2026 review, and how might the Human Rights Council usefully contribute (Universal Rights Group, Jan. 2019): 4.
(16) Member states of the United Nations are grouped into five unofficial regional groups to consider the purposes of GA Res. 1991 (XVIII) of 17 December 1963, 33/138 of 19 December 1978, and 2847 (XXVI) 20 December 1971. For an updated list, see United Nations Handbook 2019–2020 (New Zealand: Ministry of Foreign Affairs and Trade, 2019): 15–7. See also Sam Daws, “The Origin and Development of UN Electoral Groups” in Ramesh Thakur (ed.), What Is Equitable Geographic Representation in the Twenty-first Century? (UN University, 1999): 11–29. On the proposals tabled by these regional groups, see chapter two. The Asian Group changed its name to Group of Asia and the Pacific Small Island Developing States (Asian Pacific Group, APG) in 2011.
(17) See Marc Bossuyt, International Human Rights Protection. Balanced, Critical, Realistic (Intersentia, 2016): 60, 198–9; see also Veronique Joosten, The UN Human Rights Council at work: From high hopes back to reality (United Nations Association Flanders Belgium, 2006): 10.
(20) ECOSOC Resolution 9(II) 21 June 1946, UN Docs. E/56 and Rev.1 and E/84 (June 1946).
(21) The Commission’s membership became twenty-two in 1961 (ECOSOC Res. 845 (XVII) 3 August 1961); increasing to thirty-two in 1966 (ECOSOC Res. 1147 (XLI) 4 August 1966), forty-three in 1979 (ECOSOC Res. 1979/36, 10 May 1979); and fifty-three in 1992 (ECOSOC Res. 1990/48, 25 May 1992).
(22) The Sub-Commission was established in 1974 (see Report of the First Session of the Commission on Human Rights’ Commission on Human Rights: Report to the Economic and Social Council on the 1st session of the Commission held at Lake Success, New York, from 27 January to 10 February 1947, UN Doc. E/259, paras. 18–20). Composed by twelve expert members, it was expanded to fourteen in 1959 (ECOSOC Res. 728E (XXVIII) 30 July 1959), eighteen in 1966 (ECOSOC Res. 1074G (XXXIX) 28 July 1965), and twenty-six in 1969 (ECOSOC Res. 1334 (XLIV) 31 May 1968). It was renamed Sub-Commission for the Promotion and Protection of Human Rights in 1999 (ECOSOC Res. 1999/256 of 27 July 1999).
(23) On its mandate and influence in the creation and evolution of Special Procedures, see Asbjørn Eide, “The Sub-Commission on Prevention on the Elimination of Racial Discrimination,” in Alston (ed.), The United Nations and Human Rights. A Critical Appraisal (Clarendon Press, 1992): 211.
(24) HRC. Res. 5/1 Institution Building of the United Nations Human Rights Council, 18 June 2007, paras. 65–84.
(25) UN Doc. E/259 (Supp.) (n. 22): para. 22, and ECOSOC Res. 75 (V) of 5 August 1947 in Resolutions adopted by the Economic and Social Council during its 5th session from 19 July to 16 August 1947, UN Doc. E/573 (2 September 1947).
(26) Maxime Tardu, “Human Rights Complaint Procedures of the United Nations: Assessment and Prospects” in Jürgen Jekewitz et al. (eds.), Des Menschen Recht zwischen Freiheit und Verantwortung. Festchrift für Josef Partsh zum 75. Geburstag (Duncker & Humblot, 1989): 287, 287–8.
(27) H. Lauterpacht, International Law and Human Rights (Praeger, 1950): 177–88. See also J.W. Bruegel, “The Right to Petition an International Authority” 2 International and Comparative Law Quarterly (1953): 542.
(28) See Report of the Commission on Human Rights to the 2nd session of the Economic and Social Council, UN Doc. E/38 (17 May 1946): 228, and E/38/Rev.1 (21 May 1946): 408 [emphasis added]. See also Nabiel J. Fareed, The United Nations Commission on Human Rights and its work for human rights and fundamental freedoms (Diss. Washington State University, 1979): 82–3.
(29) Report of the 2nd session of the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, Lake Success, N.Y., 13 June to 27 June 1949, UN Doc. E/CN.4/351-E/CN.4/SUB.2/78 (29 June 1949), paras. 26–30, esp. para. 29. See also Report of the 3rd session of the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, Lake Success, N.Y, 9 to 27 January 1950, UN Doc. E/CN.4/359-E/CN.4/SUB.2/119 (30 January 1950), paras. 17–21 and draft resolution VI.
(30) See Report of the 3rd session of the Sub-Commission on Freedom of Information and of the Press to the Economic and Social Council, UN Doc. E/1369–E/CN.4/SUB.1/98/REV.1 (24 June 1949), paras. 22–8.
(31) Report of the Secretary General on the present situation with regard to communications concerning human rights, UN Doc. E/CN.4/165 (2 May 1949), esp. para. 13. See also Schwelb and Alston (1982) (n. 2): 271–2.
(32) See A.J.R. Groom, “The Trusteeship Council: A Successful Demise” in Paul Taylor and A.J.R. Groom, The United Nations at the Millennium. The Principal Organs (Continuum, 2000): 142.
(33) For historic precedents of the right to petition internationally prior and during the League of Nations period, see Donald P. Parson, “The Individual Right of Petition: A Study of Methods Used by International Organizations to Utilize the Individual as a Source of Information on the Violations of Human Rights” 13 Wayne Law Review (1966–7): 678, 678–88.
(34) See GA Res. 1761 (XVII), “The policies of apartheid of the Government of the Republic of South Africa” (6 November 1962), operative para. 5,
(35) See John Carey, “The United Nations’ Double Standards on Human Rights Complaints” 60 American Journal of International Law (1996): 792; see also Nigel Rodley, “Monitoring Human Rights by the U.N. System and Nongovernmental Organizations” in Kommers and Loescher (eds.), Human Rights and American Foreign Policy (University of Notre Damme Press, 1979): 157, 161–2.
(36) See Commission on Human Rights Report of the Ninth Session, 7 April–30 May 1953, UN Doc. E/2447-E/CN.4/689 (6 June 1953), para. 293.
(37) See Resolutions: Economic and Social Council Official Records, 28th Session, 30 June–31 July 1959, UN Doc. E/3290 (1959) p. 19. The Resolution consolidates in one document minor amendments introduced to ECOSOC Res. 75 (V) (n. 25). The amendments can be found in ECOSOC Res. 116 A (VI) 1 March 1948, Resolutions adopted by the Economic and Social Council during its 6th Session from 2 February to 11 March 1948, UN Doc. E/777 (12 March 1948); ECOSOC Res. 192 A(VIII) 9 February 1949, Resolutions: Official Records of the 8th Session of the Economic and Social Council, 7 February–18 March 1949, UN Doc. E/1310 (15 March 1949); and 454 (XIV) 28 July 1952 Resolutions: Official Records of the Economic and Social Council 14th Session, 20 May–1 August 1952, UN Doc. E/2332 (31 December 1952). See also proposals to modify the procedure contained in Report of the Ad Hoc Committee on Communications: Commission on Human Rights, 2nd Session, UN Doc. E/CN.4/64-E/600, supp. 6 (1947) (14 December 1947): 7 and 8; Report of the Session of the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, Lake Success, N.Y. 13 June to 27 June 1949, UN Doc. E/CN.4/351-E/CN.4/SUB.2/78 and Corr. 1 and 2 (29 June 1949), paras. 26–32; Report of the 3rd Session of the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, Lake Success, N.Y., 9 to 27 January 1959, UN Doc. E/CN.4/358-E/CN.4/SUB.2/119 (30 January 1950), paras. 17–21; and Communications: Memorandum by the Secretary General, UN Doc. E/CN.4/361 (14 March 1950).
(38) John P. Humphrey, Human Rights and the United Nations: A Great Adventure (Transnational Publishers, Inc. 1984): 28.
(39) See UN Doc. E/259 (Supp.) (n. 22), paras. 21 and 23; and ECOSOC Res. 75 (V) (n. 25). See also Report of the Sub-Committee on the Handling of Communications: Commission on Human Rights, UN Doc. E/CN.4/14/Rev. 1 (5 February 1947); and Report of the Sub-Committee on the Handling of Communications: Commission on Human Rights, UN Doc. E/CN.4/14/Rev. 2 (6 February 1947), paras. 2 and 5.
(40) See ECOSOC Res. 728 F(XXVIII) of 30 July 1959, which consolidates minor amendments to ECOSOC Res. 75 (V) (n. 25) introduced by: ECOSOC Res. 116 A (VI) 1 March 1948, UN Doc. E/777 (n. 37); 112 A (VI) [on these amendments see also suggestions by the Committee ad hoc on Communications in UN Doc. E/CN.4/64-E/600, supp. 6 (14 December 1947) 7–8; and suggestions of the Sub-Commission concerning its own role in the study of communications in UN Doc. E/CN.4/351 (n. 29); E/CN.4/358 (n. 37); and E/CN.4/361 (n. 37)]; 192 A (VIII) 9 February 1949, UN Doc. E/1310 (n. 37). See also Report of the 3rd Session of the Commission on Human Rights, Lake Success, N.Y., 24 May to 18 June 1948, UN Doc. E/800 (28 June 1948); 275 B (X) 17 February 1950, Resolutions: Economic and Social Council Official Records, 5h year, 10th session, 7 February–6 March 1959, UN Doc. E/1661 (18 April 1950); and Report of the 5th Session of the Commission on Human Rights to the Economic and Social Council, Lake Success, N.Y., 9 May–20 June 1949, UN Doc. E/1371(SUPP)-E/CN.4/350 (23 June1949), pp. 12 and 13. In addition, ECOSOC Res. 728 F(XXVIII) ends the distinction between state members of the Commission and non-state members regarding the receipt of a copy of the communications [formerly established by paragraph e) of Res. 75 (V) (n. 25) and 454 (XIV) of 28 July 1952].
(41) ECOSOC Res. 15 (XV) of 8 April 1959. See also Methods Used by the United Nations in the Field of Human Rights, UN Doc. A/CONF.32/6 (1967).
(42) ECOSOC Res. 1503 (XLVIII) of 27 May 1970.
(43) ECOSOC Res. 2000/3 (16 June 2000), Procedure for dealing with communications concerning human rights.
(45) R. Aracil, J. Oliver, and Antoni Segura, El mundo actual. De la Segunda Guerra Mundial a nuestros días (2nd ed. Universitat de Barcelona, 1998): 123; M.J. Peterson, “General Assembly” in Weiss and Daws (eds.), The Oxford Handbook on the United Nations (Oxford University Press, 2007): 97, 106–9; and Sally Morphet, “States Groups at the United Nations and Growth of Member States at the United Nations” in Paul Taylor and A.J.R Groom (eds.), The United Nations at the Millennium. The Principal Organs (Continuum, 2000): 224, table 8.1.
(48) Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514 (XV) 14 September 1960.
(49) The Situation with Regard to the Implementation of the Declaration on Granting of Independence to Colonial Countries and Peoples, General Assembly Resolution 1654 (XVI) 27 November 1961, para. 5.
(50) The first one was established by ECOSOC Res. 350 (XII) 17 March 1951, to investigate the question of forced labor as a means of political coercion or punishment for holding or expressing political views. Its final report can be found in Report of the Ad Hoc Committee on Forced Labour, UN Doc. E/2431 (1953), paras. 7–547. A comprehensive study of other fact-finding bodies created by the United Nations between 1945 and 1964 can be found in the Report of the Secretary General on methods of fact-finding, UN Doc. A/5694 (1 May 1964).
(52) UNGA Res. 1761 (XVII) (6 November 1962). See Theo van Boven, “Chartering New Grounds in Human Rights” in Coomans et al. (eds.), Human Rights from Exclusion to Inclusion; Principles and Practice. An Anthology from the Work of Theo van Boven (Kluwer Law International, 2000): 3; and R.B. Ballinger, “UN Action on Human Rights in South Africa” in Evan Luard (ed.), The International Protection of Human Rights (Thames and Hudson, 1967): 248, esp. 257–66.
(54) CHR Res. 2 (XXIII) 6 March 1967.
(55) CHR Res. 7(XXIII) 16 March 1967.
(56) See CHR Res. 8 (XXIII) and 9 (XXIII) (both 16 March 1967). See also ECOSOC Res. 1102 (XL) 4 March 1966 and 1164 (XLI) 5 August 1966; and GA Res. 2144 (XXI) 26 October 1966, determining the change of direction of the Commission. Former proposals can be found in reports of the Commission on Human Rights on its annual sessions of 1962 (UN Doc. E/3616/Rev.1-E/CN.4/832/Rev.1); 1963 (UN Doc. E/3743-E/CN.4/857); 1964 (UN Doc. E/3873-E/CN.4/874), and 1966 (UN Doc. E/4184-E/CN.4/916).
(57) See Bertrand G. Ramcharan, The concept and present status of the international protection of human rights. Forty Years after the Declaration (Martinus Nijhoff Publishers, 1989): 65–70. See also Theo van Boven, “The United Nations Commission on Human Rights and violations of human rights and fundamental freedoms” 18 Netherlands International Law Review (1968): 374, 380–2.
(58) Antonio Cassese, “The Admissibility of Communications to the United Nations on Human Rights Violations” 5 Human Rights Journal (1972): 375.
(59) A detailed account of the circumstances leading to this result can be found in Elvira Domínguez-Redondo, “La Comisión de Derechos Humanos a Debate: El Procedimiento 1503,” 2 Revista Iberoamericana de Derechos Humanos (2006): 34.
(60) Howard Tolley, “The Concealed Crack in the Citadel: The United Nations Commission on Human Rights’ Response to Confidential Communications” 6 Human Rights Quarterly (1984): 420, 429 [emphasis added]. The divergent position of states on this issue is summarized in UN Doc. E/CN.4/1273/Add.1-5 (n. 1). See also Theresa Gonzáles, “The Political Sources of Procedural Debates in the United Nations: Structural Impediments to Implementation of Human Rights” 13 New York University Journal of International Law (1981): 427; and Sidney Liskowsky, “Coping with the Question of the violation of human rights and fundamental freedoms” VIII(4) Human Rights Journal (1975): 883.
(63) CHR Res. 6(XXV) 4 March 1969.
(64) GA Res. 2443(XXIII) 19 December 1968. See Kurt Herndl, “Recent Developments concerning United Nations fact-finding in the field of human rights” in Nowak, Sterurer, and Tretter (eds.), Progress in the Spirit of Human Rights. Festchrift für Felix Ermacora (Engel, 1988): 1, 11; see also Nigel Rodley, “The United Nations and Human Rights in the Middle East” 38(2) Social Research (1971): 217, 238–9.
(65) See, e.g., Miko Lempinen, Challenges Facing the System of Special Procedures of the United Nations Commission on Human Rights (Åbo Academi University, 2001): 139–44; Ingrid Nifosi, The UN Special Procedures in the Field of Human Rights (Intersentia, 2005): 15; Marc Limon and Hilary Power, History of the United Nations Special Procedures Mechanism (Universal Rights Group, 2014): 6.
(66) The Sub-Commission’s tabled proposals for investigations on Greece and Haiti, were not welcome by the Commission. See Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities to the Commission on Human Rights, Geneva, 25 September–12 October 1967, UN Doc. E/CN.4/947-E/CN.4/Sub.2/286, 32–41 (4 December 1967), in particular Res. 3(XX) 6 October 1967. On discussions concerning the powers of the Sub-Commission to recommend actions, see Report of the 21st Session of the Sub-Commission on Prevention of Discrimination and Protection of Minorities to the Commission on Human Rights, Geneva, 7–25 October 1968, UN Doc. E/CN.4/976-E/CN.4/Sub.2/294-E/4475 (18 November 1968): 58–79; see also Peter Haver, “The United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities” 21 Columbia Journal of Transnational Law (1982): 103; Tom J. Farer, “The UN and Human Rights: More than a Whimper, Less than a Roar” in Roberts and Kingsbury (eds.), United Nations, Divided World. The UN’s roles in international relations (Clarendon Press, 1988): 95, 127–31; Maxime E. Tardu, “Procedures of the United Nations Organization: Procedures of General Scope” in Human rights: the international petition system Vol. I, Part I, Section IA (Oceana Publications, 1979): 28.
(67) See, e.g., SC Res. 134 (1960) 1 April 1960 and 181 (1963) 7 August 1963.
(68) See e.g., Felix Ermacora, “Human Rights and Domestic Jurisdiction (article 2 paragraph 7 of the Charter)” 124 RCADI (1968): 375, 406–23; Ballinger (1967) (n. 52): 248, esp. 257–66; Rodley (1971) (n. 64); Antônio Cançado Trindade, “Co-existence and co-ordination of mechanisms of international protection of human rights (at global and regional levels)” 202 RCADI (1987) 35–42. A survey of the UN actions regarding apartheid can be found in the Report of the Special Rapporteur Study of Apartheid and Racial Discrimination in Southern Africa, UN Doc. E/CN.4/949/Add.3, chap. V (1967).
(69) With the exception the South African government, which opposed UN actions based on Article 2.7 of the UN Charter. See Ballinger (1967) (n. 52): 251–71. Early debates concerning the competence of the Commission on Human Rights to establish the Group can be found at Commission on Human Rights: Report of the 23rd session, 20 February–23 March 1967, UN Doc. E/4322(SUPP)-E/CN.4/940 (1 January 1967), paras. 220–35.
(70) CHR Res. 8(XXI) (27 February 1975); see also Sub-Commission Res. 8(XXVII) (21 August 1974) and UNGA Res. 3219 (XXIX) (6 November 1974).
(71) Question of the violation of human rights and fundamental freedoms, including policies of racial discrimination and segregation and of apartheid, in all countries, with particular reference to colonial and other dependent countries and territories.
(72) On the debate generated over the Chilean mandate, see Gonzáles (1981) (n. 60). On subsequent attempts to remove country-specific mandates, see Elvira Domínguez-Redondo, “UN Public Special Procedures under Damocles’ Sword—Two Particular Innovations: Mechanisms for the Appointment of Mandate-holders and the Adoption of a Code of Conduct for Special Procedures Mandate-holders of the Human Rights Council” (2008) 29 HRLJ 32, 35–6.
(73) Statement by the Representative of Yugoslavia, Summary Record of the 70th Meeting: 3rd Committee, held on Thursday, 7 December 1978, General Assembly, UN Doc. A/C.3/33/SR.70 (8 March 1979), para. 47.
(74) See, for instance, the statements by the Representatives of the United States of America, Canada and Austria, Summary Record of the 70th Meeting: 3rd Committee, held on Thursday, 7 December 1978, General Assembly, UN Doc. A/C.3/33/SR.70 (8 March 1979), paras. 6, 14, and 32; see also statement by the Representative of Australia, Summary Record of the 69th Meeting: 3rd Committee, held on Wednesday, 6 December 1978, General Assembly, 33rd Session, UN Doc. A/C.3/33/SR.69 (12 December 1978), para. 79.
(75) CHR Res. 4 (XXXI) 13 February 1975.
(76) CHR Res. 9 (XXXIV) 8 March 1978.
(77) CHR Res. 14(XXXV) 13 March 1979.
(78) ECOSOC Res. 1979/35, 10 May 1979. A summary of actions addressing the situation in the country can be found in the first report of the Special Rapporteur (Study of the Human Rights Situation in Equatorial Guinea-by Professor Fernando Volio Jimenez, Special Rapporteur, appointed in accordance with Resolution 15 (XXXV) of the Commission on Human Rights, UN Doc. E/CN.4/1371 (12 February 1980), paras. 5–23. See also section II.D.
(79) UNGA Res. 33/176 (10 December 1978).
(80) Nigel Rodley, “Towards a more effective and integrated system of human rights protection by the United Nations,” UN Doc. A/CONF.157/PC/60/Add.6 (1 April 1993), para. 14.
(81) Theo van Boven, “United Nations and Human Rights. A Critical Appraisal” in Antonio Cassese (ed.), UN Law/Fundamental Rights. Two topics in International Law (Sijthoff Noordhoff, 1979): 119, 121–4; and Tolley (1984) (n. 60): 425–9.
(82) Although these discussions were generally on the 1503 procedure and attempts to eliminate or reform it. See UN Commission on Human Rights Res. 16(XXIV) of 7 March 1976 and resulting report by the Secretary General Analysis of existing United Nations procedures for dealing with communications concerning violations of Human Rights, UN Doc. E/CN.4/1317 (8 February1978). See also Theo van Boven, “Creative and Dynamic Strategies for Using United Nations Institutions and Procedures: The Frank Newman Files” in Coomans et al. (2000) (n. 52): 89, 90–5.
(84) On the pessimist forecast environment of the 1980’s session of the Commission, resulting from the extension of members, the invasion of Afghanistan and the Andrei Sakharov case, see International Commission of Jurist: “UN Commission on Human Rights (Commentaries, 36th session)” 24 International Commission of Jurists/Review (1980): 29–36; Howard Tolley, “‘Decision-Making’ at the United Nations Commission on Human Rights, 1979–1982” 5(1) Human Rights Quarterly (1983): 25–57. On the non-aligned group positions within the United Nations, see Sally Morphet, “States Groups at the United Nations and Growth of Member States at the United Nations” in Paul Taylor and A.J.R Groom (eds.), The United Nations at the Millennium. The Principal Organs (Continuum, 2000): 224, 237–43.
(85) The circulation of written statements was restricted by the rules contained in ECOSOC Res. 1919 (XLVIII) of 5 May 1975, although they have not been respected in practice. See Maya Prasad, “The Role of Non-Governmental Organizations in the New United Nations Procedures for Human Rights Complaints” 5(1) Denver Journal of International Law and Policy (1975): 441–62. Several opinions on the topic were issued by the UN Office of Legal Affairs: Circulation of Written Statements: Opinion Dated 28 April, 1977 from the Office of Legal Affairs to the Under-Secretary for Political and General Assembly Affairs; Principles for the Issuance and Circulation of Written Statements by NGOs: Legal Analysis Dated May, 1977; Oral Statements in the Commission on Human Rights: Legal Analysis (1978); Written Statements by Non-Governmental Organizations: Legal Analysis Dated 22 February, 1984, reproduced in Bertrand G. Ramcharan (ed.), The principle of legality in International Human Rights Institutions. Selected Legal Opinions (Martinus Nijhoff Publishers, 1997): 349–55. See also Rodley (1993) (n. 80): paras. 30–1.
(86) The reports surrounding this event are worth reading for those who are interested in the dark side of the Secretariat and its not so independent role, see Eric G. Berman, Bringing a new life to UN human operations (United Nations Associations of the United States of America, 1998): 12; Ian Guest, Behind the Disappearances. Argentina’s Dirty war against human rights and the United Nations (University of Pennsylvania Press, 1990): 80; Evan Luard, The United Nations. How It Works and What It Does. (2nd ed. Macmillan, 1994): 118 and 119; Tolley, The U.N. Commission on Human Rights (Westview Press, 1987): 32.
(88) See, e.g., David Kramer and David Weissdbrodt, “The 1980 U.N. Commission on Human Rights and the Disappeared” 3 Human Rights Quarterly (1981): 18; Hurst Hannum, “Human Rights and the United Nations: Progress at the 1980 U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities” 3 Human Rights Quarterly (1981): 1.
(89) See ECOSOC Res. 1979/38 of 10 May 1979; GA Res. 33/173 of 20 December 1978; Sub-Commission Res. 5 (XXXII)B 5 September 1979 (Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its 32nd Session, Geneva, 20 August–7 September 1979, UN Doc. E/CN.4/1350-E/CN.4/Sub.2/435, 3 October 1979).
(91) Nigel S. Rodley, “The Evolution of the United Nations Charter-based Machinery of the Protection of Human Rights” 1 European Human Rights Law Review (1997): 4, 6.
(92) “Question of the human rights of persons subjected to any form of detention or imprisonment; Subcommission Res. 18 (XXXIIl) (11 September 1980), UN Doc. E/CN.4/-E/CN.4/Sub.2/459 (1980): 75.
(93) CHR Res. 29(XXXVII) (31 March 1981). The first and only report of the Special Rapporteur can be found in “Study on Human Rights and Massive Exoduses-Sadruddini Aga Khan, Special Rapporteur,” UN Doc. E/CN.4/1503 (31 December 1982).
(97) See Report of the Secretary General on the situation of human rights in Uzbekistan, UN Doc. A/61/526 (18 October 2006), para. 31.
(98) The independent expert’s report was examined by the Human Rights Council in September 2006. The Report on the situation of human rights in Uzbekistan (restricted) was circulated as UN Doc. E/CN.4/2006/WG.16/R.3 (5 January 2006), see United Nations Document Index (Vol. 9 No. 3, October–December 2006) Part 2, UN Doc. ST/LIB/SER.N/34 (Part 2) (United Nations, 2008) 1300.
(99) The mandate was extended by the HRC Dec 1/102 (30 June 2006), Annex, in the context of the transfer of responsibilities and mandates from the Commission to the Council.
(100) “Report to the General Assembly on the 4th Session of the Human Rights Council,” UN Doc. A/HRC/4/123 (12 June 2007), paras. 119–21.
(101) “Commission on Human Rights Report on the Fifty-Fifth Session,” UN Doc. E/1999/23-E/CN.4/1999/167 (1999), paras. 246–8.
(102) See “Commission on Human Rights Report on the 52nd Session, (18 March–26 April 1996),” UN Doc. E/1996/23(SUPP)-E/CN.4/1996/177 (1996) 286–7: CHR Dec. 1996/101 (19 March 1996); “Commission on Human Rights Report on the Fifty-Fourth Session (16 March–24 April 1998),” UN Doc. E/1998/23-E/CN.4/1998/177 (1998), paras. 419 and 282–3: CHR Dec. 1998/101 (17 March 1998); see also Carlos Villán Durán, Curso de Derecho Internacional de Los Derechos Humanos (Trotta, 2002): 638.
(103) CHR Dec. 1999/102 (22 April 1999).
(106) This was the first confidential Special Procedure established by the Commission, see Report of the Secretary-General on the Effective functioning of the various mechanisms established for the supervision, investigation and monitoring of the implementation of the treaty obligations entered into by states in regard to human rights and of the existing international standards in this regard, UN Doc. E/CN.4/1994/42 (14 February 1994), para. 73 and fn. 4. On the unsuccessful attempts to make this situation public, see Tardu (1989) (n. 26): 574–5; Gonzáles (1981) (n. 60): 457–8; and R.B. Lillich and Hurst Hannum, International Human Rights. Problems of Law, Policy and Practice (3rd ed. Aspen Pub, 1995): 16–32.
(107) See CHR Res. 1987/13 (2 March 1987), preliminary para. 1, referring to the confidential report of the Special Representative of the Commission, UN Doc. E/CN.4/1987/R.2 (1987); on different experts designated for this territory, see America Watch Staff: Reverting to Despotism: Human Rights in Haiti (Human Rights Watch, 1990), 137, 140, and 141.
(108) Until 1997, the Secretary General would have facilitated direct contact with governments, acting under the 1503 procedure, with Armenia and Azerbaijan (1995); Chad (1994–5 and 1997); Equatorial Guinea (1977–8); Ethiopia (1979–80); Haiti (1981–3 and 1986); Myanmar (1990–1); Paraguay (1978–90); Somalia (1992); Sudan (1992); Uruguay (1979–84); and Zaire (1992), see M. Francisca Ize-Charrin, “1503: A serious Procedure” in Gudmundur, et al. (eds.), International Human Rights Monitoring Mechanisms: Essays in Honour of Jakob Th. Möller (Martinus Nijhoff Publishers, 2001): 293, 304 (fn. 7).
(109) The result of a confidential agreement, this practice commenced in 1978 and by 1984, the list expanded to countries no longer examined by the Commission. This practice was later codified by Resolution 2000/3 (n. 43) and HRC Res. 5/1 (n. 24). See Nigel Rodley (1997) (n. 91); Christian Tomuschat, “Human Rights in a World-Wide Framework. Some Current Issues” in Zeitschrift für Ausländisches Öffentliches Recht Und Völkerrecht. Begründet von Viktor Bruns (Kohlhammer, 1985): 547, 579–80; and Peter Kooijmans, “Introduction to the International Systems of Protection of Human Rights,” Recueil des Cours, Strasbourg Institut International des Droits d l’Homme (1986): 6, 17.
(110) See “List of situations referred to the Human Rights Council under the Complaint Procedure since 2006” OHCHR at: http://www.ohchr.org/Documents/HRBodies/ComplaintProcedure/SituationsConsideredUnderComplaintProcedures.pdf. However, the confidentiality does not cover civil society organizations and other sources of information. Therefore unofficial—scattered and not always verifiable—information is available elsewhere, see Felix Ermacora, “Procedure to deal with human rights violations. A hopeful start in the United Nations?” 7 Human Rights Journal (1974): 670, 684; Tolley (1984) (n. 60) 442, 446, 448, and 454; Rodley (1979) (n. 35): 169–70. Pauline Egret, “Outcomes of the 1503 and 1235 procedures” in Meghna Abraham, A New Chapter of Human Rights (International Service for Human Rights and Friedrich Elbert Stifung, 2006), Annex 5.1, available at: http://oldDocishr.ch/handbook/Annexes/CommProcs/1503outcms.pdf.
(111) Confidential CHR Decision of 8 March 1979 and CDH Res. 1979/35 (10 March 1979). A summary of the confidential discussions leading to these decisions is available in the Report of the Special Rapporteur on the situation of human rights in Guinea, UN Doc. E/CN.4/1371 (n. 78), paras. 5–23.
(112) CHR Res. 1987/13 (n. 107), paras. 1 and 11. See also Report on Haiti by the Expert, Mr. Philippe Texier, prepared in conformity with Commission on Human Rights resolution 1988/51, UN Doc. E/CN.4/1989/40 (6 February 1989), paras. 1–14; and Situation of Human Rights in Haiti: Note by the Secretary General, UN Doc. A/49/513 (14 October 1994), paras. 1–15.
(115) See, e.g., International Commission of Jurist, “UN Commission on Human Rights” 24 International Commission of Jurists. The Review (1980): 29, 34–5; Philip Alston, “Individual Complaints: Historical Perspectives and the International Covenant on Economic, Social and Cultural Rights” in S. Pritchard (ed.), Indigenous Peoples, the United Nations and Human Rights (Zed Books Ltd., The Federation Press, 1998): 81, 81–3; Eric Lane, “Mass Killing by Governments: Lawful in the World Legal Order?” 12 New York University Journal of International Law & Politics (1979): 239, 268–73; Manfred Nowak, “Proposals for Improving the UN Human Rights Programme” 11 Netherlands Quarterly of Human Rights (1993): 153, 156.
(116) Stefan Oeter, “Inspection in international law. Monitoring compliance and the problem of implementation in international law” XXVIII New York Journal of International Law (1997): 129, 135. See also David Weissbrodt, “Protecting the Right to Life: International Measures against Arbitrary or Summary Killings by Governments” in Bertrand Ramcharan (ed.), The Right to Life in International Law (Martinus Nijhoff, 1985): 297, 303; and Eibe Riedel, “Commission on Human Rights” in Wolfrum and Philipp, United Nations: Law, Policies and Practice (vol.1, Martinus Nijhoff, 1995): 116, 124.
(119) For a large statistical analysis comprising all actions adopted by the Commission on Human Rights, targeting specific countries between 1979 and 2001, see James H. Lebovic and Erik Voeten, “The politics of shame: The condemnation of country human rights practices in the UNHCR” 50(4) International Studies Quarterly (2006): 54; replicating the study for the period 2001–2005, see David P. Forsythe and Baekkwan Park, “The Changing of the Guard: From the UN Human Rights Commission to the Council” 29(1) Human Rights Law Journal (2008): 3.