Independent Experts Within a Political System: How Can the UN Special Procedures Advance Economic, Social and Cultural Rights?

Critiquing the UN human rights system is easy. The UN never does enough, it is too slow to respond, it issues many statements and recommendations, but cannot enforce these. It is indeed a flawed system. Yet, it is the only global human rights system. The Special Procedures form part of it as independent experts mandated by the Human Rights Council. They monitor human rights violations and promote progress in realizing human rights by undertaking country missions, communicating with States, and providing reports. They are often described as the “crown jewel” of the UN human rights system; yet, to date, they have received limited scholarly attention. The paper draws on interviews with former mandate-holders and other stakeholders at the local, national and global level and roundtable discussions with a total of around 70 participants combined with in-depth document analysis. The project focuses on mandates on economic, social and cultural rights (ESCRs) as an area of human rights that continues to be characterized by misconceptions, yet holds significant potential. At a time where many ESCR mandates have reached a certain level of maturity and have moved from standard-setting and normative development to focusing on the implementation of ESCRs, their strategies and approaches warrant closer examination. Many of the human rights system’s shortcomings stem from the fact that it is a system created by States meant to monitor these very States in their human rights compliance. The paper explores how to capitalize on these inherent tensions and understand the unique role of the Special Procedures within the ecosystem of human rights actors. In particular, the paper explores the role of Special Procedures in relation to States and civil society actors. It explores four lines of inquiry: 1) As part of a system that has no power to enforce human rights obligations, mandate-holders ultimately rely on their voice. How do they turn this into cajoling, persuading, incentivizing, and scolding? How do they capitalize on their access to decision-makers, their convening power, and their capacity to amplify the voices of human rights defenders and civil society actors? 2) Mandate-holders closely interact with civil society. How do questions of accessibility of the UN system influence this relationship? How do mandate-holders set priorities? Who determines their agenda? Are the Special Procedures truly the human rights system’s “eyes and ears” on the ground, or is there a risk of elite capture? 3) Mandate-holders are experts who operate within a political system. They are mandated by an intergovernmental body to be an independent voice. How can they capitalize on that independence in combination with the imprimatur of the United Nations? 4) Mandate-holders, in particular on ESCRs, adopt a range of strategies from confrontational (e.g., naming & shaming) to cooperative (e.g., technical assistance). How do mandate-holders navigate these approaches and their combination to advance human rights? Overall, the paper seeks to discern what innovative strategies and approaches ESCR mandate-holders adopt in a system that is increasingly under pressure to contribute to the evolution of human rights.