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A Response to Frédéric Mégret by Philip Alston

[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.

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).