Special Rapporteur Research Articles

Preface and Introduction: From Indigenous Religions to Indigenous Values Vol. 5 No. 2

The Office of the External Special Rapporteur on Religious Freedom or Belief contacted Philip P. Arnold, the Indigenous Values Initiative (IVI), and the American Indian Law Alliance (AILA), and asked us to join a call to give input on a new report on Indigenous Religious Freedom or Belief. Numerous Indigenous NGOs, Indigenous nations, and leaders were on the call. The Special Rapporteur Ahmed Shaheed and his staff were most receptive to the feedback given and received. In this special issue, you will find a copy of the report and a copy of the input provided by the IVI and AILA, as well as from our friends and colleagues Michael McNally, Lars Pharo, Dana Lloyd and Cecilia Titizano. This is a representative sample of the inputs collected for the report.

The European Muslim Crisis and the Post-October 7 Escalation

Israel’s war on Gaza following 7 October 2023 has given birth to several political and social changes in European nations. According to the United Nations Report of the Special Rapporteur, Israel has used this moment to “distort” international humanitarian law principles “in an attempt to legitimize genocidal violence against the Palestinian people.” In the European context, this has led to European Muslims and non-Muslims, including organizations, institutions, as well as individual academics, politicians, and activists mobilizing and voicing their condemnation and demand their governments to do more towards peaceful and equitable solutions. However, this has been met with a strong reaction from European governing bodies. This paper situates this reaction within wider discourses on the European Muslim crisis. It begins with a systematic literature review on the so-called European Muslim crisis, followed by case studies on the United Kingdom and Germany on their respective changes to policies impacting Muslims in the post-October 7 contexa Regarding the literature review, this paper illustrates how this concept has three distinct, yet intersecting meanings: the crisis of European identity; the crisis of foundational ideologies of Europe; and an internal Muslim crisis that often leads to radicalization. Through the British and German case studies, this paper illustrates that October 7 has reinforced and strengthened the shift towards values-based citizenship and integration. This paper argues that through branding pro-Palestine protesters and organizations as extremists in the British context, and adding questions related to antisemitism and Israel in the citizenship tests in the German context, the Israel/Palestine issue has now become yet another yardstick to demarcate the European, civilized “us” vs. the Muslim “other.” In doing so, October 7 has escalated elements already present within the wider discourses of the European Muslim crisis.

UN Special Rapporteur on Torture's most recent report to the General Assembly: 'Investigating, prosecuting and preventing wartime sexual torture, and providing rehabilitation to victims and survivors'.

The latest report by Dr. Alice Jill Edwards, UN Special Rappoteur on Torture (SRT), published on the 18th July 2024.

DISCRIMINATION POLICIES THAT LEAD TO FORCED MIGRATION: THE QUESTION OF THE BULGARIAN TURKS WITHIN UNITED NATIONS (1988-1989)

On August 21, 1989, Turkey’s decision to close the borders with Bulgaria it was interpreted by the authorities in Ankara as an attempt to force Sofia through dialogue both governments to reach an immigration agreement. Turkey considering itself as the kin state several times tried to sensibilize and prove that ethnic Turks living in Bulgaria experienced continued repression and forced assimilation while Bulgaria perceived those attempts as long-term policy of Turkey in interfering on internal issues of Bulgaria. The confrontations between Turkey and Bulgaria increased with the decision of Turkey to address this problem within United Nations. In the recent academic literature, most of the studies are focused on the internal factors and practices related to the assimilation campaign, for the period 1985-1989. The purpose of this paper, it is to contextualize the arguments used in favor and against internationalization of the question of the Bulgarian Turks through multilateral diplomacy as an instrument used by state authorities in Turkey and Bulgaria. The term Bulgarian Turks it is used in the sense of ethnicity referring to the ethnic Turks living in Bulgaria and having the status of the minority group. In this paper will be analyzed the content of the documents delivered by the Permanent Representatives of Turkey and Bulgaria in UN to the UN Secretary General and UN General Assembly, and the reports of the UN Special Rapporteur appointed in accordance with resolution 1986/20. The paper it is guided by two research questions: What kind of engagement Turkey chose in raising the question of the Bulgarian Turks into UN level? What actions took Bulgaria within UN in negating the accusations for an assimilation campaign?

Interview with Nils Melzer

Nils Melzer was appointed as the Director of International Law, Policy and Humanitarian Diplomacy of the International Committee of the Red Cross in 2022. He previously served with the ICRC from 1999 until 2011, both as a delegate in operational contexts and as a Legal Adviser in Geneva. He has also been the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2016–22), Senior Security Policy Adviser to the Swiss Ministry of Foreign Affairs (2015–16), and Vice-President of the International Institute of Humanitarian Law in Sanremo (2019–22). An affiliate Professor of International Law at the University of Glasgow, he has also held the Swiss Chairs for Human Rights and for International Humanitarian Law at the Geneva Academy of International Humanitarian Law and Human Rights, and has been a Senior Fellow and Programme Adviser for Emerging Security Challenges at the Geneva Centre for Security Policy, as well as Research Director at the Centre for Business and Human Rights at the University of Zürich.

Universal institutional mechanism for ensuring the right to development

The article describes the institutional mechanism for ensuring the right to development at the international universal level. The functions and mandate of the Office of the United Nations High Commissioner for Human Rights, the Working Group on the Right to Development, the High-level Task Force on the Implementation of the Right to Development, the Special Rapporteur on the Right to Development, the Expert Mechanism on the Right to Development, etc. are described. It is noted that the right to development is the only human right specifically mentioned in resolution 48/141 of the UN General Assembly, by which it established the position of High Commissioner and the Office of the High Commissioner for Human Rights. It is highlighted the functions of the Office of the High Commissioner for Human Rights in ensuring the right to development. It is described the mandate of the Working Group on the Right to Development, which includes: monitoring and analysis of progress made in the promotion and implementation of the right to development at the national and international levels, making recommendations and further analysis of obstacles to its full implementation; review of reports and any other information submitted by States, UN agencies, other relevant international organisations and non-governmental organisations on the relationship between their activities and the right to development, etc. It is noted that the High-level Task Force on the Implementation of the Right to Development was established within the framework of the Working Group on the Right to Development to assist it in fulfilling its mandate. It is stated that the Special Rapporteur on the Right to Development contributes to the realisation of the right to development by developing practical guidance to implement the right and to integrate it within development policies and programmes at local, national, regional and international levels. The functions and mandate of the Special Rapporteur are highlighted. It is described the activities of the Expert Mechanism on the Right to Development, which provides the Human Rights Council with thematic expertise on the right to development in searching for, identifying and sharing best practices with Member States and promotes the implementation of the right to development worldwide.

The Indigenous People of Biafra's (IPOB) Self-Determination Movements and the Role of the United Nations.

This study examines “The Dynamics of Self-Determination Movements and the Role of the United Nations: A Case Study of the Indigenous People of Biafra (IPOB) in Nigeria.” The UN's lack of action and formal recognition of IPOB's agitation has undermined the protection of the rights of indigenous people in Nigeria, particularly the Igbo community. The study adopts a qualitative methodology, utilising a time-series research design and documentary analysis of credible secondary sources, including international NGO reports and UN documents. The theoretical framework employed is the Theory of Social Constructivism, which posits that the actions of states and international organizations are shaped by socially constructed norms, ideas, and identities. One key finding is that the UN's indifference can be attributed to complex political dynamics, member states' economic interests, and the prioritisation of territorial integrity over self-determination claims. It is recommended, inter alia, that the UN establish an independent commission or a special rapporteur to investigate allegations of human rights violations against IPOB members and the Igbo community, and hold the Nigerian government accountable for any violations.

Counter-Terrorism and Human Rights at the UN Security Council: Blurring Boundaries in a Social Space

Abstract How do we study the UN Security Council, a bastion of sovereign nation-state politics, from the perspective of “outsiders” such as UN special rapporteurs? This article reimagines the relationship between security and human rights at the UN through a social space approach. By challenging institutional and geographical boundaries between the Security Council in New York and the Human Rights Council in Geneva, I follow actors in a social space in which transversal lines connecting security and human rights become visible. I uncover a social space that is animated by actors, their relations and social positions relative to each other as well as connections between institutions, geographical locations, practical competencies, and material infrastructures. On this basis, I theorize four distinct boundary-blurring practices of UN special rapporteurs: between the issue areas of human rights and security, between the geographical locations of New York and Geneva, between institutions such as the Security Council, Human Rights Council and the OHCHR, and between the domains of politics and law. While these practices help them enter into the social space of the Security Council in New York, special rapporteurs need to pay “entry costs” by accepting the basic premises of the counter-terrorism architecture in return for recognition as valid actors in this architecture. Taking this viewpoint from the outside, I argue, illuminates the extension of the Security Council beyond its institutional confines and uncovers “the human-rightisation” of global security policy.

Can a human right to good mental health be justified?

Can a human right to good mental health be justified? This is an under-explored question: until recently, rights in relation to mental health have been framed and debated primarily in terms of their relevance to psychosocial disability and mental ill-health/mental distress. By contrast, in this article, I propose the basis of a normative justification for a population-wide right to good mental health, focusing in particular on individuals who do not experience mental ill-health/distress or do not have (or may never have) a psychiatric diagnosis or a psychosocial disability. The articleis structured into three parts. First, I will outline the emergence of a population-wide right to good mental health in mental health discourse, led by recent reports published by the former United Nations Special Rapporteur on the Right to Health, Danius Pūras. I will then go on to explore what we might understand by 'good mental health'. Finally,I will explain how a right to good mental health may be justified, drawing on insights from compassion, 'vulnerable agency', and James Wilson's account of 'a right to public health'. I then respond to feasibility and demandingness concerns about such a right, which together inform the basis of the qualified public health right to good mental health I propose.

Which Children Have Rights? The Child’s Right to Bodily Integrity and Protection Gaps for Children with Intersex Traits under International and National Laws

This article examines protection gaps for children with intersex traits under international and national laws governing non-voluntary medicalized interventions into sexual anatomy. Various United Nations (UN) bodies, including the UN Special Rapporteur on Torture, the Office of the High Commissioner for Human Rights, human rights treaty-monitoring bodies and the Human Rights Council, have called for full acknowledgment and substantive protection of the rights of children with intersex variations—as with all children—to bodily integrity and (future) bodily autonomy in relation to their own sexed embodiment. However, these global norms generally have not been codified under international law, and most countries have not passed adequate, or any, legislation to secure these rights. We review relevant global norms, international human rights treaties and legislative developments in a range of countries to illustrate potential pathways for closing legal gaps in the protection of all children’s rights to bodily integrity and (future) bodily and sexual autonomy. Keywords: bodily integrity; children’s rights; gender binary; non-voluntary medical interventions; human rights; intersex.

Violence against Women as a Structural Risk: Responding through Prevention with Due Diligence

Situations of crises such as the Covid–19 pandemic expose the fissures in society, both domestic and global. Using violence against women as an example, the paper shows how structural risks amplify during crises and how the concept of due diligence can be used to address these risks. By focusing on prevention, it analyses the existing approaches towards due diligence in the context of violence against women by the Inter-American Court of Human Rights, the European Court of Human Rights, the Committee on Elimination of Discrimination against Women and the Special Rapporteur on violence against women. The paper looks at how these mechanisms have considered the invocation and applicability of the duty of prevention with due diligence as well as the measures that states need to take to discharge such a duty. It concludes with a reflection on what can be done to further strengthen the arguments of the mechanisms analysed in this paper to utilise the full potential of due diligence concerning state obligations towards the prevention of violence against women.

Report of the Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes, Marcos Orellana, on His Visit to the International Maritime Organization, 14 July 2023

Report of the Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes, Marcos Orellana, on His Visit to the International Maritime Organization, 14 July 2023

From Aspiration to Public Policy: Imprinting UNGP-Aligned Footprints of Corporate Responsibility and Accountability into the Shifting Sands of International Arbitration Practice

Abstract Endorsed more than a decade ago by the UN Human Rights Council, the UN Guiding Principles for Business and Human Rights (UNGPs) articulate the responsibilities of States and corporations for human rights. Since then, the issue of corporate responsibility for human rights, and also the environment, and how it ought to be recognized and enforced, has attracted increasing attention. In more recent years, States have promulgated a flurried storm of ESG regulations requiring disclosure of human rights or climate risks or mandating human rights due diligence across global supply chain networks, intensified their transition to greener economies, and continued to negotiate treaties infused with dreams of more sustainable investment and development. Against this backdrop, in October 2023, a UN Special Rapporteur presented a report that condemned the international arbitration system for prioritizing the protection of corporate property rights over the protection of international human rights and the environment. In tracing the development of a ‘soft law’ aspiration of corporate responsibility to inscriptions into ‘hard law’ international investment law treaty instruments and then considering how those inscriptions have been interpreted and applied by tribunals, this article finds that despite the nascent recognition of corporate responsibility for human rights and the environment, the enforcement of accountability for that responsibility in international arbitral practice is currently misaligned with the UNGPs and with other fundamental tenets of international law. This article subsequently explores the opportunity, and implications, for imprinting stronger footprints of responsibility and accountability in international arbitral practice, including through the potential recognition of new international public policy upholding corporate responsibility for human rights and the environment, and in doing so, highlights the need for greater cross-industry, multidisciplinary and multilateral dialogue on an issue of not only global significance, but with global impact.

Assessment of De Jure Judicial Independence of Constitutional Courts According to International Guidelines

Judicial independence of constitutional courts is of paramount importance because it upholds the rule of law, protects individual rights, and maintains checks and balances in a democracy. Moreover, it ensures impartiality, prevents the abuse of power, and fosters public trust in the legal system. By interpreting and applying the law without external influence, an independent judiciary safeguards the principles of justice and democratic governance. This Article provides criteria for assessing de jure judicial independence of constitutional courts according to four renowned international documents that set normative standards for protecting judicial independence. These four documents are synthesises the literature about the definition of judicial independence, particularly in the context of constitutional courts, and analyses four international guidelines that set essential standards for protecting the independence of the judiciary. These four guidelines are: Basic Principles on the Independence of the Judiciary by the UN,1 Report of the Special Rapporteur on the Independence of Judges and Lawyers,2 the Universal Charter of the Judges,3 and International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors.4 Using conceptual and doctrinal analysis, this Article identifies three key elements of de jure judicial independence: personal, institutional, and procedural. It also establishes practical criteria to evaluate whether the laws governing a specific constitutional court uphold or undermine its de jure judicial independence. Importantly, it is crucial to distinguish between de jure and de facto judicial independence because merely enacting constitutional provisions and laws to safeguard the judiciary does not automatically guarantee an independent judiciary in practice. The discussion of these principles highlights how personal, institutional, and procedural independence can be established and preserved within the courts. This Article concludes that the common purpose of these principles is to protect judges from unwarranted interference, especially from the executive branch. Among the various principles, the most crucial ones were found to be independent judicial appointment procedures and ensuring judges’ tenure is protected against retaliatory actions by the governing regime.

Trade in torture tools threatens detainees and protestors everywhere - it must be banned.

With social upheaval, economic strain, and political unrest growing, peaceful demonstrations worldwide are increasingly met with brutal tactics by law enforcement and security forces. The UN Special Rapporteur on Torture outlines her call for States to negotiate a new international treaty to ban the manufacture, use and trade in "torture tools" and regulate the trade in law enforcement equipment. Her proposal outlines two critical components: a prohibited list of items that she has deemed to be inherently cruel, inhuman or degrading, and a second controlled list of ordinary law enforcement equipment that has a high risk of misuse. Effective international regulation is imper-ative to curb the indiscriminate use of force by law enforcement and to uphold human dignity. Improved national regulation is also required. Research has revealed a pervasive market for these items, with more than 335 companies in 54 countries manufacturing or promoting the most egre-gious torture instruments. Major producers include China, the EU, and the USA, with emerging economies also contributing significantly. The outsourcing of public functions to private security companies further exacerbates the issue, underscoring the pressing need for robust national and international regulations.

New project sheds light on the worldwide use of solitary confinement.

Solitary Confinement.

Mental Health Social Work Practice: Navigating Tensions

Abstract The United Nations Special Rapporteur has called for ‘a revolution in mental health care to end decades of neglect, abuse and violence…enabl[ing] a long overdue shift to a rights-based approach’ (United Nations Human Rights Office of the High Commissioner, 2017). Principles underpinning social work practice with people living with mental distress who receive diagnoses such as schizophrenia, personality disorders and bipolar disorder, align with sought after changes. Using Cooperative Inquiry and referring to the Model of Holistic Competence in Social Work, this study investigated mental health social work seeking to foster this shift. Findings confirmed inherent discordance between social work values and mental health care dominated by biomedical and neoliberal views. Upholding social work values in this context involves complex practice, integrating procedural and meta-competencies. By incorporating skills in relational practice and advocacy; knowledge of multiple explanatory frameworks for mental health and mental health systems literacy; self-regulation; fostering tenacity whilst addressing ‘othering’; and judgement informing choices around conformity and confrontation, social work navigates tensions associated with this discordance. This paper highlights the nature of values-based social work practice as aligned with mental health reforms.

The African Guiding Principles on the Rights of Migrants, Refugees and Asylum Seekers (Afr. Comm'n H.P.R.)

In its 75th ordinary session, the African Commission on Human and Peoples’ Rights (ACHPR, or Commission), the human rights organ of the African Union, with a mandate to promote and protect human and peoples’ rights and interpret the African Charter on Human and Peoples’ Rights, unanimously adopted the African Guiding Principles on the Human Rights of Migrants, Refugees and Asylum Seekers (Guiding Principles). They were publicly launched by the Commission at its 77th ordinary session on October 21, 2023. The drafting was led by the Commission's Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons, and Migrants in Africa. The thirty-eight Guiding Principles are based largely on African regional treaty law, case law, standards, and resolutions of the Commission and also draw from complementary international law. In addition, the Guiding Principles draw from the experience of other world regions, including adoption by the Inter-American Commission on Human Rights (the human rights organ of the Organization for American States) of the 2019 Inter-American Principles on the Human Rights of All Migrants, Refugees, Stateless Persons, and Victims of Human Trafficking.

Modernizing the human rights Complaints system at UNO

Since 1947, the commission on HRs has been working on monitoring, following up and protecting HRs all over the world, and due to the limitations of its competencies, the HRs council was established to replace the commission after granting it broader competencies to exercise the function of monitoring and protecting HRs . The council played an important role in the development of the complaints and communications system in addition to the system of special rapporteurs, taking into account the confidentiality of procedures and information, and on the other hand, it established advisory committees to be a new and effective procedure in supporting and developing the council's procedures in the protection of HRs . During the past period, the council has been able to increase the effectiveness of the complaints and communications system by modernizing them and ensuring seriousness and reliability .it has also worked to increase the effectiveness of the special rapporteurs system, in addition to deepening the council's closed procedures with the state and the complainant. it has also expanded the complaints procedures to include nine major human rights conventions so that individuals in all countries can submit their complaints, in addition to increasing the effectiveness of states ' reports on HRs violations.

MANDATE AND ACTIVITIES OF THE SPECIAL RAPPORTEUR ON THE NEGATIVE IMPACT OF UNILATERAL COERCIVE MEASURES ON THE ENJOYMENT OF HUMAN RIGHTS

The article discusses issues related to the mandate and activities of the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, sanctions.It is obvious that since the establishment of the mandate of the Special Rapporteur on the negative impact of unilateral coercive measures, there remains a need to extend the activities of this Special Procedure, since further work is required to assess the impact of unilateral coercive measures imposed bypassing the UN Security Council and their consequences on human rights and the achievement of sustainable development goals.