It is not a normal occurrence to see the decision of one of the so called ‘special procedures’ of the United Nations receiving worldwide attention. However, the opinion of the Working Group on Arbitrary Detention categorising the situation of Julian Assange as arbitrary deprivation of liberty, on 4 December 2015, has attracted the attention of the press, social media and experts’ commentary around the globe.
Suspiciously enough coming from the founder of WikiLeaks, this response was sparked by Assange himself, when he announced, a day before the Working Groups’ opinion became public, that he would surrender to UK authorities if the Working Group concluded that the Swedish and British authorities had acted legally.
Background: The Working Group on Arbitrary Detention consideration of individual cases
The Working Group on Arbitrary Detention is one of the ‘thematic special procedures’ of the United Nations Human Rights Council. The creation of a special procedure is dependent on the approval of a resolution creating the mandate by a simple majority of a governmental body (the Human Rights Council or its precursor, the Commission on Human Rights). These resolutions are therefore result of political negotiations between states, although the mandate-holders of special procedures are independent experts. As a consequence, the scope of competence and methods of work are framed in vague terms, and mandate-holders have enjoyed great flexibility and autonomy in operationalising their activities.
While intervention in individual cases was well-established among other mandate-holders of special procedures when the Working Group on Arbitrary Detention was created in 1991, this was the first special procedure to be explicitly endowed with the power of ‘investigating cases’ falling within its mandate. The Working Group has adopted methods of work similar to treaty-bodies dealing with individual complaints, complete with conclusions concerning the existence of a violation by the State concerned. Special procedures do not require the exhaustion of domestic remedies to be able to access them, one of the many features making these mechanisms particularly attractive to those who need a reaction from an international body, including the possibility of ‘urgent appeals’ which can be sent in a matter of hours, if there is an imminent risk to the life or physical integrity of the victim.
Undermining human rights bodies: reactions to the opinion of the Working Group on Assange
It is not the purpose of this commentary to assess the content of the opinion of the Working Group, largely criticised for its shaky legal foundations elsewhere (see for instance: Mathew Happold here, Joshua Rozenberg here, or a more nuanced view by Liora Lazarus here). Instead, it seeks to highlight the implications of the reaction to the opinion, which risk damaging international human rights bodies, at a time when mistrust towards the international human rights regime, often voiced by countries ‘in the South’ as attempts to undermine their sovereignty, are increasingly being augmented by the voices of Western States including the UK.
Of course, the first to blame is the Working Group itself. If anyone doubted that the allure of becoming part of the media spotlight play a role in the decision of considering this case admissible, it published two press statements and one of its members, Setondji Adjovi, appeared on TV signalling the high profile of the case and drawing further attention to it.
The British government responded undermining the authority of the Working Group rather than restricting its answer to the content of the opinion itself. As widely reported, the Foreign Secretary Philip Hammond, referred to the Working Group as a ‘panel’ made of a ‘lay of people, not lawyers’, which is an easily verifiable lie since the nomination process and CVs of the experts is public (se commentaries here and here). Some may remember the personal attacks aimed at the Special Rapporteur on housing, Rolnik, following her visit to the UK (see commentary by Alice Donald and Aoife Nolan here). On that occasion too Rolnik was portrayed as ‘a woman from Brazil’ rather than a recognised international expert on the topic of housing.
The Working Group is no novice to attacks to its work. Its opinions are not binding in international law and the Working Group was forced, in 1997, to change its former terminology (decisions) to reflect this (UN Commission on Human Rights resolution 1997/50, 15 April 1997, para 7) under the criticism of Cuba and China, but also the American Association of Jurist (UN doc. E/CN.4/1994/NGO/18, para 15).
The British government has more than enough to rebut the Assange opinion on its merits without discrediting a body that constitutes the only avenue for many illegal deprivation of liberty around the world. Hopefully, an official response for the UN will follow. However, when the UN has tried to protect its mandate-holders in the past, it has -at times- preceded it highlighting their independent expert status. So, are mandate-holders organically linked to the UN structure and how does it impact their authority?
Legal status of mandate-holders of UN special procedures
In his recent commentary, Happold states that ‘the Working Group is a UN body, but it is not, and does not represent the ‘United Nations’. What seems ‘obvious’ to Prof Happold remains nonetheless an unresolved issue impacting the authority and legitimacy of mandate-holders of special procedures: their status within the UN. If they are considered external experts, close to the status of consultants, their role cannot be considered beyond the weight provided to scholars as a subsidiary source of international law, which fails to reflect and explain their position within the UN and their engagement with state and non-state actors. Their authority, capacity to intervene in individual cases and obtain a response rely on the blue ink of the UN stamp rather than their independent expert status.
The independence of mandate-holders vis-à-vis states, NGOs, victims and other interlocutors is uncontested. They are not permitted to receive instructions from any stakeholder with their legal status deemed equivalent to ‘experts on mission’ for the purposes of the Convention of Privileges and Immunities of the United Nations, as asserted by the International Court of Justice in 1989. In its second advisory opinion on this matter (para 51) the Court further clarified that the UN Secretary General is normally the competent organ in deciding whether particular acts of a special rapporteur fall within the scope of her/his mission, and therefore whether to waive or maintain the privileges and immunities of experts on mission. This position was codified in article 4 of the Code of Conduct for special procedures in 2007. They are also subject to the relevant provisions of the Regulations Governing the Status, Basic Rights and Duties of Officials other than Secretariat Officials and Experts on Mission (UN doc. ST/SGB/2002/9, 2002).
Mandate-holders of special procedures have at times defended their independence from the UN. For instance, they stressed their disconformity with the decision of the Commission on Human Rights 1997/125, 18 April 1997, modifying the content of the report of the Special Rapporteur on contemporary forms of racial discrimination, xenophobia and related intolerance (UN doc. E/CN.4/1997/71, para 27). They expressed the view that special rapporteurs were responsible for the content of their reports and the Commission should not request amendments (UN doc. E/CN.4/1998/45 Annex, para 23).
More significantly, on 4 October 2000, the UN Secretary General felt compelled to deny that mandate-holders’ acts could be attributed to the UN in the light of the controversial declarations made by Jiri Dienstbier, then Special Rapporteur for human rights in the former Yugoslavia, stating his opposition to the indictments of Yugoslav President Slodoban Milosevic (UN doc. SG/SM/7574).
Several mandate-holders have acted as if the outcomes of their work belonged to them and not the UN. Increasingly, they have created their own websites to publish their findings, issues in focus and reports (see for instance the website of the current and former special rapporteurs on summary executions here and here, or those maintained by the former special rapporteurs on the right to food, indigenous peoples and water and sanitation here, here, and here).
Arguments supporting the position that special procedures as a whole belong organically to the UN are stronger than those denying such status. They are subsidiary bodies of the Human Rights Council, whose creation, renewal and scope of competence is governed by their parent organ. Their categorisation as bodies belonging to the structure of the UN since 1967 is reflected in the terminology used to describe them as ‘Charter-bodies’ -a reference to their relationship with the organs created by the UN Charter. It is also common to refer to them as the ‘system of special procedures’ emphasising the institutionalisation of the different thematic and geographic mandates belonging to the category special procedures within the Organisation.
The Human Rights Council possesses the final authority over the activity of the experts. In the words of article 15 of the Code of Conduct, mandate-holders are ‘accountable to the Council’. If it estimates that they have behaved beyond their conferred powers or in any other manner incompatible with their mandate, it can decide corrective measures, including the modification of their methods of wok, such as the Commission did in 1997 regarding the terminology used by the Working Group on Arbitrary Detention. It can also decide the review of reports (as illustrated above) and, ultimately, the termination of the mandate.
The relevance of the mandate-holders’ work is subordinated to the consideration of their acts as acts of the Organisation. The validity of activities undertaken by special procedures is governed by the same principles applicable to other subsidiary organs of the UN. As subsidiary organs of the Human Rights Council, their acts are attributable to the UN and are able to contribute to the emergence or consolidation of customary rules in relation to States. The legality of their actions is linked to the presumption of validity to their acts as long as the Human Rights Council -or its parent body, the General Assembly- does not pronounce otherwise. This was already explained in 1981 by Theo van Boven, then Director of the Division for Human Rights (speech reproduced in Ramcharan, ed., The Principle of Legality of International Human Rights Institutions: Selected Legal Opinions, Martinus Nijhoff Publisher, 1997, 7)
The UN special procedures have been one of the most meaningful achievement of the universal human rights system. The Working Group on Arbitrary Detention may have got it wrong in the Assange case, but it is important to not undermine the body rather than the opinion. Potential victims of arbitrary detention approach the Working Group and other special procedures believing they are approaching the UN, not just any expert. This makes them recognised UN interlocutors with whom states normally engage to, inter alia, clarify whether a deprivation of liberty is arbitrary and, in successful cases, facilitate the release of persons illegally detained. The Working Group on Arbitrary Detention is not just a bunch of experts with an opinion. Denigrating special procedures by casting doubt on their authority and efficacy is ill-informed and regressive.