Code of conduct and the manual of special procedures

Algeria (on behalf of the African Group) tabled a resolution at the resumed second session of the Council which directed the working group to review the manual of special procedures⁸⁶ and to draft a code of conduct. The resolution,⁸⁷ which was put to vote, was supported by all members of the Council belonging to the African Group, almost all Asian States, and also by Brazil and Ecuador.⁸⁸ Though a number of States opposed the code on the grounds that it was not necessary⁸⁹ and would restrict the independence of special procedures, they were in the minority amongst members of the Council.⁹⁰

The working group was not able to reach any agreement on this issue as it was divided about the need for a code of conduct, the content of the code, and the document to use as the basis of negotiations.⁹¹ The African Group draft code of

86 The Manual was originally adopted in 1999, at the 6th Annual Meeting of Special Procedures. It aims to provide guidance to the special procedure mandate-holders and covers a range of issues related to their work and was revised by the coordination committee of the special procedures in 2006. The draft revised Manual has been circulated and been made publicly available for comments from governments, civil society organisations, independent experts and all other stake holders. See Manual of the United Nations Special Procedures, available in English, French and Spanish at www.ohchr.org/english/bodies/chr/spe-cial/manual.htm.

87 Council resolution 2/1.

88 Algeria, Azerbaijan, Bahrain, Bangladesh, Brazil, Cameroon, China, Cuba, Djibouti, Ecuador, Gabon, Ghana, India, Indonesia, Japan, Jordan, Malaysia, Mali, Mauritius, Morocco, Nigeria, Pakistan, the Phil-ippines, Russian Federation, Saudi Arabia, Senegal, South Africa, Sri Lanka, Tunisia, and Zambia voted in favour of the resolution. Argentina and Uruguay abstained.

89 They argued that the manual of the special procedures and the General Assembly’s Regulations Governing the Status, Basic Rights and Duties of Offi cials other than Secretariat Offi cials, and Experts on Mission (the Regulations) made a code of conduct redundant.

90 Canada, Czech Republic, Finland, France, Germany, Guatemala, Mexico, Netherlands, Peru, Poland, Republic of Korea, Romania, Switzerland, Ukraine and United Kingdom.

91 For details of the discussions and the positions adopted by various States see the Council Monitor reports on the second and third sessions of the working group, available at www.ishr.ch/hrm (under Working Groups).

The preservation of the tool of country mandates represents an important victory for the institution-building process.

conduct circulated by Algeria was fi nally used as the basis of negotiations. The Algerian Ambassador therefore held consultations on the draft and circulated a number of revised versions of the text based on the comments he received. The fi nal revised version,⁹² which was acceptable to, though not supported by, all States, was adopted along with the President’s text as part of the fi nal institution-building package.

The purpose of the code of conduct is identifi ed as enhancing “the effectiveness of the system of special procedures by defi ning the standards of ethical behaviour and professional conduct that special procedures… shall observe whilst discharg-ing their duties”.⁹³ The provisions of the code complement the General Assembly’s Regulations Governing the Status, Basic Rights and Duties of Offi cials other than Secretariat Offi cials, and Experts on Mission (the Regulations). The code also provides that the provisions of the draft manual of special procedures should be in consonance with those of the code.

The code identifi es general principles of conduct for mandate holders, building on those identifi ed in the Regulations. These include an emphasis on the need for mandate holders to act in an independent capacity, exercise their functions ac-cording to their mandate, and to be free of any extraneous infl uence, incitement, pressure, threat or interference, whether from stakeholders or others.⁹⁴ They can not seek or accept instructions, honours, gifts or remuneration for any govern-ment, organisation, or pressure group and should not use their offi ce for private gain.⁹⁵

The code confi rms that mandate holders are entitled to privileges and immunities under relevant international instruments and that their responsibilities are inter-national.⁹⁶ Without prejudice to these privileges and immunities, mandate holders are expected to carry out their mandate “while fully respecting the national legislation and regulations of the country wherein they are exercising their mis-sion”.⁹⁷ The coordination committee suggested a qualifi cation to this requirement

“to the extent that these laws and regulations are consistent with human rights and the effective performance of the mandate holder’s offi cial functions”.⁹⁸ Unfor-tunately, this suggestion was not taken up but after pressure from States, a clause was added that mandate holders should adhere to regulation 1 (e) of the Regula-tions, if any issue arises in this regard. Regulation 1 (e) would require the mandate holder to report any clash between their immunities and privileges and the national laws and regulations to the Secretary-General “who alone may decide whether such privileges and immunities exist and whether they shall be waived”. This does not exempt the mandate holder from the requirement of complying with national laws and regulations but may offer them some protection in cases where an attempt is made to misuse this provision.

92 A/HRC/5/L.3/Rev. 1, (18 June 2007).

93 Art. 1.

94 Art. 3 (a).

95 Art. 3 (f), (i) and (j).

96 Art. 4 (1) and (2).

97 Art. 4 (3).

98 See the note circulated by the coordination committee in response to the discussions on the code of conduct with an annex that includes possible elements of a code of conduct, (13 April 2007), p. 4, available at www.ohchr.org/english/bodies/chr/special/docs/note_code_of_conduct.pdf.

Mandate holders are expected to carry out their mandate “while fully respecting the national legislation and regulations of the country wherein they are exercising their mission”.

Mandate holders are required to exercise their functions “in strict observance of their mandate” and to ensure that their recommendations do not exceed their mandate or the mandate of the Council.⁹⁹ They are also required to take into account “in a comprehensive and timely manner” information provided by the State concerned.¹⁰⁰ In their information gathering activities, mandate holders shall

“rely on objective and dependable facts based on evidentiary standards that are appropriate to the non-judicial character of the reports and conclusions”¹⁰¹ ( emphasis added) they draw.¹⁰² On a positive note, an additional clause was put in allowing mandate holders to preserve the confi dentiality of their sources of testimonies if needed to prevent harm to the individuals involved.¹⁰³

The early versions of the code of conduct attempted to impose a requirement that persons who send communications to the special procedures must exhaust do-mestic remedies and a further requirement that urgent appeals¹⁰⁴ can only be issued following an assessment into “the existence of gross human rights viola-tions”.¹⁰⁵ In the fi nal version, the requirement for exhaustion of domestic remedies was removed.¹⁰⁶ The criteria for the issuance of urgent appeals was also relaxed to provide that mandate holders may resort to urgent appeals when the “alleged violations are time-sensitive in terms of involving loss of life, life-threatening situ-ations or either imminent or ongoing damage of an extremely grave nature to victims that cannot be addressed in a timely manner by the procedure under article 9 of the present code”.¹⁰⁷

Regrettably, the fi nal version of the code requires all communications from special procedures to governments to be sent through diplomatic channels unless there is an agreement to the contrary between the government and the OHCHR.¹⁰⁸ One of the main strengths of the urgent appeal procedure was the ability of special procedure to directly contact those best placed within the government to take immediate action to stop the ongoing human rights violation. The requirement that all appeals will have to be sent through the mission in Geneva or New York, when no mission exists in Geneva, could create delays in the transmission of ap-peals and to its winding a slow path through the State machinery. The code also requires special procedures to ensure that concerned governments are the fi rst recipients of their conclusions and recommendations and for the Council to be the fi rst recipient of conclusions and recommendations addressed to it.¹⁰⁹

The worst provision in the early drafts was the suggestion to create an Ethics Committee to oversee compliance with the code. Such an ethics committee would

Mandate holders are

102 Earlier versions of the draft called on mandate holders to base their activities on “adequate evidentiary standards” or to “verify the veracity of the facts”; which could have created ambiguity as to the standards to be applied and placed a high standard of proof on special procedures. This provision was modifi ed based on comments by States and the coordination committee.

103 Art. 8 (b).

104 Urgent appeals are used to draw the attention of the government to information about a violation that is allegedly ongoing or about to happen.

105 African Group Proposal, (13. 03. 07), available on the OHCHR extranet at http://portal.ohchr.org/.

106 Art. 9.

107 Art. 10.

108 Art. 14.

109 Art. 13 (c).

have most likely been composed of members from each regional group and could have led to an extremely politicised system of oversight. Thanks to the resistance of many States, this provision was dropped and the code now merely provides that the mandate-holders are accountable to the Council in the fulfi lment of their mission. There are concerns however that the idea of the ethics committee could be resurrected. It has to be acknowledged that there are instances where some special procedure mandate holders may exceed the scope of their mandate or behave in a manner which is inappropriate to their position. If the code has the effect of strengthening self-regulation by mandate holders or by the coordination committee, this would be best outcome. The danger of course is that they will not get the opportunity to do that or the provisions will be misused as a pretext to target all or other mandate holders.

The coordination committee had suggested that the issue of cooperation by States with the special procedures should also be addressed in the code. This suggestion was rejected and the code therefore stays a one way street dealing only with the responsibilities of special procedures but not of States. The only reference to cooperation by States is found in the preamble to the code, which urges all States to cooperate with, and assist, the special procedures including by providing all information in a timely manner and responding to communications without undue delay.

The code that was adopted was the best of the worst options put forward and again, is being judged by most involved, more by the disasters that were averted than the merits of its fi nal text. As with other issues, the impact of the code on the activities of the special procedures will only be apparent with time.