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!

Raising Arizona

If the polls are to be believed, a significant majority of Americans support Arizona's harsh new immigration law, signed by Gov. Brewer three weeks ago today. The significant minority of Americans opposed to the law has pushed back fairly powerfully, including through criticism from governors of other border states (California, New Mexico, and Texas) and boycotts by several cities, including most recently, Los Angeles. Perhaps even more striking has been the strong opposition to the law from outside our borders, from Mexican President Felipe Calderon (who stated that the law infringes basic human rights) to the Mexico-based World Boxing Council (which called the law shameful, inhuman, and discriminatory) to Secretary General Jose Miguel Insulza of the Organization of American States (who called the law discriminatory) to the Union of South American Nations (which expressed concern over the law's racist consequences that undermine respect for human rights), much of it leveraging the language of human rights.
The most comprehensive international human rights critique of the law, however, was offered by a group of six independent United Nations experts -- an unusually large team of human rights superheroes -- on Tuesday. Their statement, which also addresses the bill banning ethnic studies courses in Arizona schools that Brewer signed the into law the following day, raises interesting questions about the role of international human rights law in protecting immigrants' rights. Most obviously, if laws that violate human rights are consistent with a country's social norms, as the poll results suggest in the case of Arizona's law, will international pressure help to shift those social norms or will it simply entrench anti-immigrant attitudes and opposition to "foreign meddling" in domestic affairs?
In her own rather confused way, Governor Brewer presents another interesting question about the application of international human rights law in federal systems of government. Her response to the UN experts statement places the responsibility for enforcement of international human rights law squarely on the federal government, arguing that "[i]f the Arizona law violates the international standards, then so does the federal law upon which it is based." Though perhaps not the most compelling argument, it does give rise to questions about whether the federal government should be responsible for challenging state laws that violate international human rights law. While sub-state actors may in some cases be more effective enforcers of international norms, central governments still have an important role to play in keeping rogue sub-state actors in line.
Finally, the statement takes a step towards enforcement of positive rights, a move that highlights the predominance of negative rights in the human rights discourse. At first read, I questioned the existence of binding legal authority to support the claim that "[s]tates are obligated to not only eradicate racial discrimination, but also to promote a social and political environment conducive to respect for ethnic and cultural diversity.” But there it is, clear as day, in the text of Article 7 of the Convention on the Elimination of All Forms of Racial Discrimination:

States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups. . .

A good reminder that the "spirit" of human rights treaties is sometimes spelled out right there in the text, and that we shouldn't allow the enforcement of negative rights, though unquestionably important, to overshadow legally binding claims to positive rights. (For those interested in further readings on Article 7, here's an excellent short piece by IntLawGrrl Stephanie Farrior.)

UN Experts Weigh in on Detention of Migrants

Academics and activists in the United States (including yours truly) have become increasingly outspoken on the detention of immigrants and asylum seekers. The lack of procedural due process in detention decision-making is breathtaking, and has led to expressions of concern by not one, not two, but three United Nations expert bodies of late.
First, the United Nations Special Rapporteur on the Rights of Migrants, Jorge Bustamante, has released his report on his mission to the United States earlier this year (posted on here and here). Among other concerns, the Special Rapporteur found that excessive discretion is placed in the hands of the Department of Homeland Security (DHS)'s bureau of Immigration and Customs Enforcement (ICE) in the detention decision-making process. His report notes the following specific concerns with the United States' treatment of migrants in detention:
• Failing to promptly inform detainees of the charges against them
• Failing to promptly bring detainees before a judicial authority
• Denying broad categories of detainees release on bond without individualized assessments
• Subjecting detainees to investigative detention without judicial oversight
• Denying detainees access to legal counsel
Similarly, the United Nations Working Group on Arbitrary Detention, chaired by Leila Zerrougui, reported in January an increasing trend towards administrative detention of immigrants and asylum seekers without access to administrative or judicial review, and with the purpose of deterring immigration. In addition to concerns similar to those laid out above, the Working Group emphasized the following rights of migrants:
• The necessity of founding the decision on custody on criteria of legality established by the law by a duly empowered authority;
• The desirability to set a maximum period of detention by law which must in no case be unlimited or of excessive length;
• The requirement of notification of the custodial measure in a language understood by the immigrant or asylum-seeker, including the conditions for applying for a remedy to a judicial authority, which shall decide promptly on the lawfulness of the measure and be competent to order the release of the person concerned, if appropriate.
The Working Group is planning a trip to the United States this year.
And finally, last week the United Nations Committee on the Elimination of Racial Discrimination released its concluding observations on the United States' recent periodic reports. The Committee requested that in its next report, the United States provide detailed information . . . on the alleged mandatory and prolonged detention of a large number of non-citizens, including undocumented migrant workers, victims of trafficking, asylum seekers and refugees, as well as members of their families. Here's hoping that this international pressure from several fronts will bring attention to this important issue and prompt reform of US policies on detention of immigrants.

Human Rights at the Border

As Congress and the President debate the viability of the current immigration reform bill, the delay in fixing our broken immigration system takes a human toll at our southern border: 453 deaths last year alone. A GAO report found border deaths doubled between 1995 and 2005. The cause? Luis M. Lopez Moreno, the Mexican consul in the small border town of McAllen, Texas, explains:

Since the border has become so difficult to cross, working men who moved back and forth annually are now stuck in the north, and family members unaccustomed to the trek are “trying to reunite” by traveling to the States. Women, arguably less able to withstand the journey, sometimes caring for children, are represented more in the migrant stream. Young migrants, the majority of those who come, are likely to be better educated and more urban now, less aware of how to manage themselves under extreme conditions.

The alarm bells have been sounding for years; 5 years ago, UN Special Rapporteur on the Human Rights of Migrants Gabriela Rodríguez Pizarro recommended:

In view of the demand for labour in many parts of the United States, the Special Rapporteur invites the United States Government to strengthen migration agreements and implement new measures to regularize migrant workers and their families. This would give migrants more dignified access to the United States labour market and without the risks that an irregular crossing of the border entails.

The Special Rapporteur also recommended that the US ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which entered into force in 2003 and has yet to be ratified by any developed nation. Nonetheless, the simple moral force of the report makes for compelling soft law: While the Special Rapporteur acknowledges the right of the United States to protect its borders, she would like to receive the guarantee that all measures taken to this end respect the right to life. 'Nuff said.