Working with the UN Human Rights Council and Special Procedures

1. Working with the UN Human Rights Council and Special Procedures Phil Lynch Director Human Rights Law Resource Centre Ltd hrlrc@vicbar.com.au + 61 3 9225 6653 www.hrlrc.org.au

2. Overview of the UN Human Rights Council • Established in March 2006 by UN General Assembly to replace UN Human Rights Commission • Comprises 47 member states, elected by GA • ‘Gross violators’ can be removed by 2/3 majority of GA • Aims to promote, coordinate, monitor and mainstream human rights internationally and within the UN system • Primary modalities: • Universal Periodic Review (UPR) • Special Procedures

3. Universal Periodic Review • Periodic review of states’ ‘fulfilment of human rights obligations and commitments’, based on: • an ‘interactive dialogue’ • ‘objective and reliable information’ from • the state concerned • the OHCHR • other ‘relevant stakeholders’, including NGOs, NHRIs • Australia due in 2011 • For further information, see:http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRmain.aspx

4. What is a ‘Special Procedure’? • Independent expert/s entrusted with mandate to examine, monitor, research, report and advise on human rights issues • Generally appointed by and report to: • UN Human Rights Council; or • UN Secretary General • Also called ‘Special Rapporteurs’, ‘Independent Experts’, ‘Special Representatives’ and ‘Working Groups’

5. Mandates of Special Procedures • Country Mandates (9) • Thematic Mandates (29) • 8 on civil and political rights (torture, summary executions, freedom of expression, freedom of religion, independence of judges and lawyers, racism, counter-terrorism, human rights defenders) • 8 on economic, social and cultural rights (food, health, education, housing, toxic wastes, poverty, economic reform and debt) • 9 focusing on specific groups (migrants, internally displaced persons, women, children, minorities, indigenous, migrants, trafficking, slavery) • 4 working groups (arbitrary detention, enforced and involuntary disappearances, mercenaries and African descent)

6. Functions of Special Procedures • Five key responsibilities: • Urgent appeals • Country visits • Follow-up • Normative work • Annual reports

7. Urgent Appeals • Upon receiving credible information of human rights violation within scope of mandate, SP may send ‘Urgent Appeal’ to relevant Government • May relate to individual or systemic violation • May relate to past or prospective violation • In general, urgent appeals: • request investigation, action and remedy by govt; • are confidential between SP and govt; • are reported to UN HRC, GA or Sec-Gen as appropriate; and • are included in Annual Report.

8. Submitting an Urgent Appeal • May be made by victim/s, lawyers and NGOs • Send request for action to SP via UN OHCHR • urgent-action@ohchr.org • Request should contain: • Details of author (this is maintained confidential in subsequent communication); • Details of alleged victim/s; • Date, place and detailed description of violation; • Details of alleged perpetrator; • Details of any steps taken to investigate or remedy violation; and • Clear linkage between human rights issue and mandate of SP • Model request forms available • http://www2.ohchr.org/english/bodies/chr/special/questionnaires.htm

9. Urgent Appeals v. Treaty Body Communications • Advantages: • Timely and expeditious • Can be used preventatively • No need to ‘exhaust domestic remedies’ • Complaint may be brought against any country on any issue within mandate (regardless of treaty ratification) • Complaint need not be made by victim (although credibility of information is important) • Disadvantages: • No relevant thematic mandate • Confidential between SP and govt • Author may not be informed of outcome • Govt may simply ignore urgent appeal or refuse request for country visit • Generally make observations, not ‘legal’ recommendations

10. Case Study: Conditions of Detention of ‘Terror’ Suspects • Overview of conditions of detention • Confinement in cells • Access to lawyers • Shackling and restraints • Visitations • Religious observance and diet • Physical and mental health • Period of detention • Used in conjunction with domestic mechanisms • Evidence in domestic bail and stay proceedings • Political awareness and accountability

11. Case Study: Conditions of Detention of ‘Terror’ Suspects (2) • Joint complaint to: • WG on Arbitrary Detention re proportionality of detention • Adopted ‘Opinion’ expressing 4 significant concerns • Severity of conditions • Scanning of legal correspondence • Lack of consideration of individual circumstances • Constraints on judicial discretion regarding bail • SR on Freedom of Religion re restrictions on religious observance • Reported in Annual Report • SR on Independence of Lawyers re facilities and resources to prepare defence • Reported in Annual Report

12. Country Visits • SPs may request permission to visit a country where concerned about particular violations or implementation failures • Australia has not issued a ‘standing invitation’ • Meet with and obtain information from governments, NGOs and community • Aim to engage in positive dialogue and make observations and recommendations • Reports submitted to UN HRC and GA and Sec-Gen

13. Using Country Visits • Utility of country visits: • Create momentum and opportunity for change • Visibility on a thematic area • Opportunity to voice concerns in international fora • Report can be a tool to advocate for change • Obtaining a country visit: • Make requests to SPs in thematic areas of interest to your work • Motivate requests in terms of desirability and timeliness of mission

14. Using Country Visits (2) • Preparation • Advise on WHERE to go, WHO to meet and WHAT to address • Suggest recommendations that would be useful for you and your communities • Follow up • Disseminate the report • Monitor and report on implementation (lack of)

15. Case Study: Homelessness and SRAH Visit to Australia • Context – 100,00 homeless, economic prosperity, threatened funding cuts • Urgent action letter submitted March 2005 • Letter of allegation and request for country visit • SAAP funding cuts withdrawn • SRAH invited to visit • Country visit August 2006 – Role of NGOs • Jointly contributed to itinerary and facilitation of meetings • Informed interim report issued in August 2006 • Provided detailed NGO information in November 2006 • SRAH reported to UN HRC in June 2007 and NGOs made oral submissions • Used to engage media and in policy and advocacy work

16. Follow Up • Many SPs hold dialogues with governments to follow-up on actions, recommendations or observations arising from urgent appeals and country visits • SPs may also be used by civil society to ‘follow up’ on implementation of treaty body recommendations

17. Normative Work • Many SPs attempt to develop norms and standards and further develop jurisprudence in thematic area • Excellent source of information about source and substantive content of relevant rights • relevant in Vic under s 32(2) of Charter

18. Annual Reports • All SPs report annually to UN HRC and some also report to GA and Sec-Gen • Reports contain: • details of urgent appeals and government responses • reports on country visits • observations on normative content of right • Some SPs also prepare thematic reports • UN SRAH Report on Women and Adequate Housing

19. Further Information • Office of the High Commissioner for Human Rights web page • http://www2.ohchr.org/english/bodies/chr/special/index.htm • OHCHR Fact Sheet No 27 on Special Procedures • http://www2.ohchr.org/english/about/publications/docs/factsheet27.pdf