Hobbling the Monitors: Should U.N. Human Rights Monitors be Accountable? by Philip Alston

[Philip Alston, John Norton Pomeroy Professor of Law at New York University School of Law, describes his 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.]

The critical issue I examine in this Article is whether a group of independent experts, or monitors, explicitly created to hold governments to account in terms of their human rights obligations, can be subjected to a strong accountability regime controlled by those same governments, without destroying the independence that is considered to be the system’s hallmark.

In 2007, a group of powerful governments pushed through a Code of Conduct to regulate the activities of Special Rapporteurs (“SRs”), Independent Experts and others who make up the so-called Special Procedures system created by the Commission on Human Rights and inherited and expanded by the Human Rights Council. It is widely acknowledged that this group of experts, that now includes some 33 thematic mandates (focusing on, for example, disappearances, extrajudicial executions, torture, violence against women, and the rights to education, food, health, etc.), represents the Council’s most effective system for independent human rights monitoring.

In 2010, in the context of major discussions about the future of the Council, the same group of governments proposed the establishment of a Legal Committee to enforce compliance with the Code through sanctions. Other governments, the SRs themselves, and civil society groups have been highly critical of the way the Code has been used so far to stifle the work of the monitors and are strongly opposed to the creation of any compliance mechanism. In many, perhaps too many, respects, the Article draws on my personal experience not just as a SR for a period of six years but as the only SR who has so far been the subject of concerted campaigns by different governments to secure a SR’s dismissal before his term of office had expired.

I begin by noting the powerful pressures which have succeeded over the past decade or so in insisting that almost all international actors should be accountable, and take note of the veritable explosion of accountability mechanisms applicable almost across the board these days in relation to international organizations. I then explore in some detail the potential utility of principal-agent theory as a means by which to understand and characterize the relationship between the SRs and various potential principals, ranging from governments, the Council itself, to those individuals whose rights are being violated.

Because of the strong resistance manifested by the great majority of my fellow SRs and by others to attempts to establish an accountability regime, I first seek to mount the strongest possible case that can be made for exempting SRs from the general trend towards accountability. Despite the salience of some of these arguments, I conclude that existing forms of accountability for SRs are weak, and are probably inadequate. By the same token, however, it is also clear that serious concerns about the undermining of the SRs’ independence through new accountability mechanisms are also warranted.

By way of conclusion I call for a new approach that recognizes the multifaceted nature of the notions of independence and accountability and I end with a specific proposal for a legal committee designed to strengthen both of these notions and to enhance the legitimacy of the system as a whole.

In the reform package that was agreed by the Human Rights Council in March 2011 it was agreed not to pursue the proposal for a Legal Committee. In most respects this has been seen as a victory for the SRs who thus remain free of the constraints of formal regulatory arrangements, other than in the context of their annual reporting to the Council. But I would contend that this is something of a pyrrhic victory, since the alternative is the heavily politicized oversight of the Council which could, at any stage in the years ahead, simply decide to dismiss a SR without according any procedural due process or taking the sort of steps that would be essential to preserve the integrity of the system as a whole. In other words, while the position of SRs is inevitably fragile, it would be better in the long run to develop a professional mechanism to ensure balanced and objective accountability than to celebrate short-term immunity from such pressures.