By Timothy Herrmann
NEW YORK (C-FAM) Delegations fought back again last week against the lack of accountability and transparency of independent experts at the United Nations. Pakistan led the charge, proposing an amendment that called for experts to “exercise their functions independently and in full observance of their respective mandates.” Forty-eight countries supported the amendment, all of them increasingly frustrated by the tendency of many of the appointed independent experts to overstep the boundaries of their mandates.
The most recent example of an independent expert going beyond their mandate is Anand Grover, the Special Rapporteur on the Right to Health who claimed in his report last month that abortion is an international right. Individuals like Grover are appointed for their expertise in a particular area of human rights, but when they show significant bias in their reporting or claim that their opinions have international legal force, that expertise is called into question.
Independent experts are appointed, not elected, and receive minimal oversight at the UN. As a result, the incentive for many to go rogue is becoming commonplace and notoriously difficult to moderate. In October of 2009, the Special Rapporteur on Counter Terrorism Martin Scheinin left the scope of his mandate on terrorism to define gender as a “social construction.” In November of 2010 (A/65/162) the former Special Rapporteur on the Right to Education, Vernor Muñoz, called into question the inviolable role of parents in the sexual education of their children. Given the frequency and controversial nature of these cases, Pakistan determined it as necessary to propose an amendment to remind delegations of the importance of independent experts remaining within their mandate.
For many countries, like Jamaica, the proposed amendment afforded a unique opportunity to speak out against the way their country in particular had been bullied by special rapporteurs in the past. The Jamaican delegate said a special rapporteur “publically accused” her of misrepresenting the views of her own country when reading a statement that was in fact prepared by her government. The Russian delegate also expressed support for the amendment, calling it an improvement to the resolution’s text.
Though member states can make formal complaints throughout the year about the questionable behavior of independent experts, the “persistent non-compliance of mandate holders” is only considered when their mandate comes up for renewal three years after appointment. Even then, the final decision on whether or not to extend the mandate of the special rapporteur is decided by the President of the Human Rights Council, not member states. In the case of some independent experts, like special representatives, only the Secretary General determines whether or not the expert in question is guilty of exceeding the boundaries of their mandate.
The opinion of these experts is neither binding on international law nor on the countries they criticize. Even when their opinions are referenced in a resolution, they maintain only the force of their personal opinion or of the internationally recognized norms that their opinions support. At the same time, many advocacy groups have attempted to use the independence of these experts in order to push their agenda at the UN. For Pakistan and many other countries, the time has come for this practice to end.
Timothy Herrmann is the UN Representative for the Catholic Family and Human Rights Institute. This article first appeared in the Friday Fax, an internet report published weekly by C-FAM, a New York and Washington DC-based research institute (http://www.c-fam.org/). This article appears with permission.