A Response to Philip Alston by Frédéric Mégret

[Frédéric Mégret, Assistant Professor of Law at McGill University Faculty of Law and Canada Research Chair in the Law of Human Rights and Legal Pluralism, responds to Philip Alston, 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.]

Philip Alston’s article on special rapporteurs suggests that there may be some merit on hobbling them a little, just not necessarily in the way that a majority of states at the Human Rights Council seem to want. The great merit of the article is a strong effort to highlight both sides of the debate, including the one most unsympathetic to untrammelled SR independence, by someone who is himself a special rapporteur. Indeed, it is particularly notable that Alston, who was the main target of a (failed) attempt by some states to oust him for claimed violations of the code, still finds more merit in the basic idea of rapporteur accountability than many international human rights activists.

The basic premise of Alston’s article is one that is tempting for anyone who is keen on the international human rights regime, namely that rapporteurs are not as powerless as they are sometimes made to be. This is partly because of the SRs’ considérable autonomy in organizing their work, and partly because of the impact that their activity can have in a widely connected world in which a well-timed press statement can have as much if not more impact than many formal resolutions. To be consistent as a human rights lawyer (of all things), one must then acknowledge that the exercise of power entails certain responsibilities and inevitably a degree of accountability. SRs’ power is one that involves in the best of cases reporting human rights violations in ways that may lead to meaningful remedies and prevention of further violations. But it is also a power that may, for example, disrupt domestic political processes, leave some victims unattended, or entail interpretations of human rights that are contentious.

In this context, the idea of SR accountability is welcome, but the devil is in the details. Alston’s arguments, essentially, is that States have tended to offer the wrong response to a good question. Partly this is because the whole Code of conduct initiative may be little more than a trojan horse to rein in SRs based on a fear that they unduly interfere with sovereignty. However note that this is not such an extravagant idea: one may think that on the whole SRs have behaved in ways that were not incompatible with the understanding of sovereignty as essentially limited by human rights, but clearly the fact that one is dealing in international rights is not a licence to meddle in any domestic matter. SRs could also be victims of a certain human rights hubris and start pronouncing on matters that were clearly beyond their remit. Special rapporteurs are not judges, for example, and it is difficult for them to pass definitive judgment on complex factual matters involving individuals. Perhaps because their normative activity is so bereft of the normal checks that accompany human rights adjudication, their pronouncements may also occasionally take liberties with such notions as the « margin of appreciation » (i.e. : the idea that some of the means to implement rights obligations ar left to states’ discretion, based on cultural and national specificity).

What seems to have escaped the debate and is not particularly highlighted in Alston’s article is that the understanding of what SRs can do wrong implicit in discussions surrounding the Code of Conduct is limited and excessively state focused. There are surely other ways in which a SR might fall short of his obligations than unduly interfering with sovereignty. Imagine, for example, that an SR were (for whatever reason) to betray the confidence of victims of human rights violations by reporting information that had been given to her or him confidentially. Surely if that were the case, there would be no shortage of human rights activists who would seek to hold them accountable. In practice, SRs have tended to live up to the expectations (or at least not disapoint too dramatically) of what is commonly referred to as the « human rights movement, » but the opposite, i.e. of excessively apologistic rapporteurs, is certainly possible. Accountability, in such cases, could work both ways and the tendency of Alston’s piece to think of it mostly in terms of accountability to governments may reproduce some of the biases of the debate that it seeks to transcend. At any rate, if there is an opportunity to get other constituencies excited about the concept of SR accountability then it should be explored.

The question is not whether there should be an accountability mechanism at all, as I think Alston very clear sightedly assesses, but what sort of mechanism there should be. I leave aside here the fact that this is largely a political matter, and a question of where one senses the biggest danger lies (most human rights activists have no doubt that it is with excessive governmental interference). In practice, getting the right institutional mix matters a great deal. Alston privileges a mode of regulation that appeals to SRs integrity and relies on some form of self-disciplining (or at least scrutiny by other impartial observers), rather than the state monitoring currently favored at the Council and which can have such an insidious impact on the work of SRs.

Beyond this, however, lies a deeper question which inevitably taints all attempts to deal with the issue of accountability and which I think Alston addresses insufficiently. That problem is the issue of the legitimacy of SRs in the first place, i.e. before they are even made accountable. Different ways of assessing that legitimacy will have an impact on how accountability is conceived. The push by states to have a rules based form of accountability overseen by the Council reflects a view of the SRs as being primarily accountable to the Council’s members. It is this starting point that leads Alston into a fruitful but ultimately slightly convoluted attempt to escape the strictures of the principal-agent relationship. SRs arguably only partly owe their mandate and legitimacy to the Council. Of course, it is the Council that creates the mandate itself, but in practice SRs are nominated on the basis of their qualities, not elected officials of the Council. A bit as in the nomination of judges in some domestic settings, the exercise is a political one but it is also a constrained one, that aims at selecting individuals with the greatest stature.

The temptation then is to suggest that it is precisely this stature (that is merely, as it were, recognized by the Council through its designation process) that provides the bedrock of SRs legitimacy, whether it be evidenced by their expertise in human rights, their charisma or their past ability to conduct complex investigations. SRs should thus be true to themselves and their convictions and accountability should really if anything be towards a jury of peers. The problem is that any notion of SRs’ legitimacy as inherent is also deeply problematic. It can make SRs appear as a sort of international human rights aristocracy, constrained only by their noblesse oblige and their good reputation. That may be a little too much to ask in cases where, however well intentioned, special rapporteurs can appear foreign and removed to some domestic constituencies. More importantly, it fails to take seriously the fact that the problem is the possibility that SRs fall short of the standards that led to their designation.

One way out of the abstractness of inherent legitimacy might be to say that SRs draw their legitimacy from their commitment to the idea of human rights. Simply working in the name of rights, however, is no guarantee that one will rise to the demands of independence, impartiality and competence required of an SR. Human Rights Council member states will also claim to be working for the betterment of rights. Moreover, this may be based on a simplistic notion that rights provide some sort of clear indication as to their realization. Clearly though the work of SRs is one that relies crucially on individual agency and initiative and this is what makes accountability a relevant issue.

Perhaps what is missing therefore from current debates and only hinted at by Alston (who is mostly interested, it should be said, in responding to actual initiatives being pushed before the Council) is a notion that SRs are accountable but only very partly to states. Indeed, the view that SRs are working « for » states through some complex variation of rational choice that allows them to see it as in their best interest is only part of the picture. At a deeper level, SRs must be working (and this is surely the intuitive understanding that most have of their work) not for the idea of rights but for right holders themselves. This is even though this crucial legitimacy of their work is mandate-less in that obviously no global constituency of human beings granted them a mandate and for all intents and purposes states provide the crucial and problematic missing link. But it is unmistakably human beings generally and those concretely affected by SRs’ work who give SRs what legitimacy they may have. It is therefore also arguably vis-à-vis these ultimate beneficiaries that SRs should be accountable, through whatever mechanism this can be made institutionally possible. The fact that such a possibility is not particularly plausible today merely points to how statist international human rights promotion and enforcement remains to this day.