A Response to Frédéric Mégret by Philip Alston

by Harvard International Law Journal

[Philip Alston responds to Frédéric Mégret’s comments on Alston’s recently published article, Hobbling the Monitors: Should U.N. Human Rights Monitors be Accountable?. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.]

I am grateful to Frédéric Mégret for his very thoughtful comments on my article. Fred’s own excellent work on the accountability of “International Prosecutors: Accountability and Ethics” (available at ) is one of the few sustained and probing analyses of the difficult topic of the accountability of those playing a crucial role in what might be termed the international justice sector.

At the end of the day, there is not a lot on which we disagree. The great majority of Special Rapporteurs strongly resisted the notion of a formal accountability mechanism beyond the internal and self-administered arrangements that they set up for themselves under the threat of more demanding measures being suggested by governments. It is therefore noteworthy that Fred takes the idea that there should be some mechanism more or less for granted. I think this is correct, but again as he notes, the challenge is to get the correct institutional mix, or to put it another way to include enough checks and balances so as to ensure that neither side can easily manipulate or abuse any procedure that is established.

I agree that the issue of the legitimacy of Special Rapporteurs underlies much of the debate. If it is accepted, as I argue, that they are in a position to exercise considerable influence or even power in certain circumstances, then it becomes crucial that they can justify their positions in ways that go beyond merely asserting that they were appointed by the Human Rights Council and that their legitimacy flows automatically from that point. In reality, the Council is generally very leery of giving its independent experts significant powers, which explains in part why there are potentially quite a few disputes. States prefer to ‘play safe’ as they see it, by agreeing to relatively vague and open-ended mandates, and then doing their best to encourage the experts to interpret the resulting language in a cautious and undemanding way. The experts rarely respond in such a manner and the result is a range of disagreements as to the appropriate limits.

Fred suggests several possible sources of legitimacy which neither he nor I think do the job adequately. They include the notion that legitimacy stems from the individual’s expertise and standing, or that it is their deep commitment to human rights that renders them legitimate. In reality these factors are inevitably relevant but they are certainly not enough. Nor, in my view, is it sufficient to argue that they are legitimate merely because they are on the side of the rights holders, although that too is an important consideration.

That gets us back to accountability as a means of reinforcing legitimacy derived from a variety of other factors. Fred suggests that I place too much emphasis on the formal manifestations of such accountability vis-à-vis states and not enough on the need to be accountable to the most important stakeholders of all – those whose rights have been violated. My response is twofold. First, formal accountability mechanisms in the Council context can be used by civil society and ultimately by the affected individuals themselves, so that it is not only an accounting towards governments that is being exacted. Second, Special Rapporteurs are in practice held to account by the victims of violations in the sense that their reports amount to very little unless they resonate on the ground with those affected. In this sense, the ultimate accountability mechanism is the credibility that a given rapporteur enjoys with the relevant constituencies. Those who are doing their jobs badly, or in a way that ignores the real interests of those whose rights are being violated, will quickly lose their credibility. That means that their reports will not be taken seriously, their access will not be particularly good, the media will not give the reporting the sort of coverage desired, and the overall range of constituents will cease to take the mandate-holder very seriously. That ultimate form of accountability is powerful, but I argue that it is still not enough and that in due course attention will have to be given to establishing a balanced and nuanced mechanism to enable rapporteurs to defend themselves effectively against the many allegations to which they are exposed, very often, but not always, unfairly.

http://opiniojuris.org/2011/07/15/hilj_alston-response-to-megret/

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