A response to Alice Edwards’ proposal
Alice Edwards’ reflection and proposal come at a key moment, as the international human rights movement is struggling to come to terms with an unprecedented funding crisis, which is shaking its very foundations. And for all the damage that’s been caused to date, including the significant cuts to the 2026 UN regular budget, we still know that the worst is yet to come, in spite of sturdy initiatives to stop the bloodshed. Her radical proposal to merge five critical Special Procedures into a single one lands in a context of relative lethargy and despair, which have prevailed since the global human rights movement has become impacted initially by Trump’s second term, and subsequently the UN80 cuts.
Alice Edwards draws a severe picture of where Special Procedures are at, which ignores the nuances and differences inherent to each of the five mandates that her proposal addresses. She is right to point that ‘the system works when it is allowed to’ and that ‘Special Procedures have helped shape international law, clarified prohibitions, and driven real policy change internationally, regionally, and domestically’ among other achievements. I also concur with Edwards that ‘fixing the system matters’ and that ‘the answer is not simply more mandates, nor fewer. It is smarter design.’
It must be said though that one of the main reasons why Special Procedures are struggling is simply due to the sheer volume of communications they receive, and their limited ability to respond to them – as pointed out by Edwards. One should acknowledge that the fact that so many communications are submitted to the Special Procedures is a positive sign, it means that people have hope in the system, and that in a way, that system has become a victim of its own success. A parallel can be drawn here with communications to the UN Treaty Bodies, which also face disproportionate levels of communications pending review.
The main problem with Edwards’ suggestion is that the proposed remedy would only make things worse. The fundamental underlying problem in the increase of mandates is the lack of resources.
As she rightly points out, the linear increase of UN human rights mechanisms, especially Special Procedures, has had unavoidable consequences: competition for resources and mandate dilution. As Elina Steinerte and I noted in a discussion about complementarity between Special Procedures and Treaty Bodies, the significant increase in the number of mandates has led to ‘draining resources from those that already exist. Support staff, travel budgets, and administrative capacity are not expanded in parallel; they are redistributed. All mandates are left to do more with less.’ Alice Edwards draws a similar conclusion – so we can agree on that.
The main issue with the solution proposed by Alice Edwards, namely to merge the five mandates dealing with torture, disappearances, arbitrary detention, summary executions, and terrorism into one, would certainly and quite simply reduce the number of experts, and it might allow some cases to be assessed more holistically. But it would also inevitably water down, dilute and weaken the ability of each individual mandate to address the situations brought to their attention.
There’s no evidence to back her misleading claim that it would maximise the number of cases that can be pursued – in fact it would most likely be quite the opposite, the ‘merged’ mechanism would likely become swamped with cases, with even less capacity to respond. It is simply not possible to provide redress to more victims by having less of those who can provide the redress. It’s also quite ironic that such a radical proposed change, which on paper seems to be aimed at increasing coordination and cooperation between existing mandates, appears to have been designed without consultation with these mandates.
Edwards alludes to a functional approach to address the multiplication of mandates: rationalisation. In a way, it’s the easiest answer, and as she points out it’s already been done, for instance between the mandates on slavery and trafficking. Again, a parallel can be drawn with Treaty Bodies and Louise Arbour’s 2006 proposal for a unified standing Treaty Body.
Yet the problem with rationalisation is that it only works if those who are being rationalised are similar enough to enable fruitful cross-fertilisation rather than eliminate their very essence. For instance, the proposal in respect to the WGAD would mean the de facto end to the only universal quasi-judicial individual complaints system under the WGAD’s regular communications procedure which leads to the adoption of Opinions on arbitrary detention. No other Special Procedures mandate has a tool at their disposal that would resemble this mechanism, so there are inherent loopholes and unavoidable losses in rationalisation, at least as proposed by Edwards.
So if we can hardly rationalise the number of mandates, what should be done?
One response would lie in how new mandates are designed and established, and essentially how the costs and implications to establish new mandates are raised. To date, it has been relatively easy for new mandates to be established as the sponsor States have not had to incur the cost and other resourcing implications. Yet once in place, nearly all mandates end up facing dwindling political and/or financial support sooner or later.
To date, the UN has relied on the traditional funding model of ensuring that new mandates have to have a PBI (Programme Budget Implications), i.e. a budget allocated for the new entity from the UN’s regular budget (RB). That model – which needs to remain in place – worked to an extent in a world where the UN could adequately rely on RB. That world now has come to an end and in the post UN80 world, we are having to reinvent the UN’s funding model, which includes diversifying funding sources, including through increased proportions of what the UN calls XB, i.e. extra budgetary income, or voluntary contributions.
If UN human rights mandates are no longer able to operate adequately through RB, then they ought to be better funded through XB. Historically, there has been much reluctance for specific mechanisms to be funded through XB, especially investigative bodies, as there is a perception that their work should not be influenced by States or other actors. That approach cannot hold in a world where we can no longer fully rely on RB, and in fact, the majority of OHCHR’s funding now comes from XB (61.4 per cent), with the remaining 38.6 per cent from RB. The main problem with XB is that contributions are, indeed, voluntary. So one avenue to stabilise revenue would be to make them compulsory. One way to do that would be to establish a similar process for XB resourcing, as is already in place for RB. Namely, a PBI for voluntary contributions in addition to the PBI from the UN’s regular budget.
In other words, States would pledge to contribute the amount required by the mandate to operate, for the duration that it is anticipated to operate, upon creation. Alternatively, they could designate or take responsibility for funding from fellow sources for the mandate that they sponsor. And no new mechanism should be able to be established without a full funding plan for the intended duration of the mandate, including a recurring plan for mandates with no limit in time. Responsibility to secure those resources should be placed on the co-sponsors of the resolutions establishing those new mechanisms.
This approach would have the benefit of:
- Providing predictable and stable funding for the mandates for their anticipated duration, including throughout their life cycle if they are open-ended.
- Avoiding the considerable limitations that mandates face in discharging their functions adequately due to insufficient funding
- Providing a clear and continuous funding plan that would avoid the major variations that mandates are currently facing, including worst case scenarios such as the impossibility to initiate mandates (such as with the DRC mandate in 2025) or significant fluctuations in resourcing and staffing over time
This model is already in place to an extent for some Special Procedures and accountability mechanisms: they receive earmarked contributions from both State, and non-State donors, either through OHCHR or third parties such as NGOs, including for technical cooperation and capacity strengthening. Some States play proactive roles to secure funding from others for specific mechanisms. But the problem remains that such contributions remain voluntary, and thus fundamentally unpredictable and unstable. If those States who propose new mandates, including Special Procedures, had to take responsibility to ensure their funding throughout their life cycle, surely, they would think twice before engaging in the process.
A more nuanced approach to this model could consist in requesting States who propose the creation of new mandates to contribute the amount requested by the mandate to a common pot, generally materialised at the UN as a Trust Fund. The benefit of such an approach would be that States sponsoring new mandates would not directly fund that mandate, but they would nonetheless ensure that it is adequately funded through a contribution to a funding pot available for all such mandates such as all Special Procedures (although that could apply to other mandates).
Ultimately, it is not possible to provide more redress to victims by having fewer mandates, all the more so when they protect fundamental human rights such as freedom from torture, arbitrary detention or summary executions. The UN80 crisis provides an opportunity to rethink the ways the UN is funded, including by opening the doors to new avenues.
Vincent Ploton is an international human rights law specialist and scholar, who sits on the Board of the Journal of Human Rights Practice. He is a former candidate to the Working Group on Arbitrary Detention (2021-22).
Featured image: Vincent Ploton
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