|Department of Public Information • News and Media Division • New York|
Sixty-third General Assembly
20th & 21st Meetings (AM & PM)
GLOBAL DEVELOPMENT GOALS SHOULD NOT BE PURSUED IN ISOLATION FROM HUMAN RIGHTS,
NEW UNITED NATIONS HUMAN RIGHTS COMMISSIONER TELLS THIRD COMMITTEE
Committee Also Hears from Special Adviser on Myanmar;
Rapporteurs on Freedom of Religion, Terrorism, Expert on Extreme Poverty
By pursuing the United Nations Millennium Development Goals in isolation from human rights, nations were forgoing the chance to apply a people-centred approach to development that could help mediate conflicting claims arising from the development process, the Third Committee (Social, Humanitarian and Cultural) was told today, as delegates held a day-long discussion with four prominent human rights officials -- the newly-appointed High Commissioner for Human Rights and three United Nations experts specializing in freedom of religion, terrorism and extreme poverty -- on the general topic of promotion and protection of human rights.
The new High Commissioner for Human Rights, Navanethem Pillay, who received a warm welcome from delegates at her first appearance before the Committee since her appointment in September, argued that a rights-based development process would provide content and legitimacy to the United Nations development agenda, primarily in providing a motive for building the capacity of the poorest States and to make the entire development process sustainable in the long run. She further argued that placing human rights at the centre of United Nations discussions -- and therefore placing people’s needs above political considerations -- could help keep the international community from becoming mired in “defensive politics”, which was widely known to be the case at the 2001 Durban World Conference against Racism, where various sensitive issues had been excluded from the agenda.
“Having grown up in apartheid South Africa, I know too well what it is like to live in an environment permeated by racism. As a judge of the International Criminal Tribunal for Rwanda, I heard the testimony of ordinary people who found themselves suddenly victimized by an explosion of ethnic hatred,” she told the Committee, painting a view of the world where impunity, armed conflict and authoritarian rule stood undefeated. Societies emerging from conflict sought peace at the expense of justice, and human rights were sidestepped in the name of security. The world, in her view, was a place where still too many countries systematically discriminated against minority groups.
Ms. Pillay explained that, under her predecessor, Louise Arbour of Canada, the High Commissioner’s Office had expanded its field operations and widened its partnerships with civil society in an effort to help nations provide recourse for victims of human rights abuses. That philosophy dovetailed neatly with Ms. Pillay’s intentions to bring concrete improvement to the lives of everyday people. As she explained in a lengthy question-and-answer session with delegates, Ms. Pillay said she would promote implementation of human rights standards by encouraging States to allow mandate holders to visit countries, as many had already done. She also said she would examine how the expertise of independent experts could be instilled into the universal review process -- a mechanism established by the General Assembly to review the fulfilment by each State of its human rights obligations and commitments.
Asma Jahangir, Special Rapporteur on freedom of religion or belief, and Martin Scheinin, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, each participated in a question-and-answer session where they also fielded questions regarding country visits. Ms. Jahangir pointed out how essential country visits were and said greater country engagement and good cooperation could result in positive national developments, such as the implementation of legislative reforms or the increased representation of minority groups in political processes. She stressed, however, that good cooperation on the part of states meant that Governments gave access to the departments, materials and places that she might wish to see, as well as providing space for private meetings without surveillance of, or threats to, the people who had talked to her.
Mr. Scheinin noted that his mandate covered a difficult and sensitive issue, where national security posed additional difficulties for countries. To facilitate requests for country visits, he often turned to the Counter-Terrorism Committee and its Executive Directorate. Overall, he expressed an interest in increasing cooperation with States by providing services to countries should they need it, such as the drafting of counter terrorism legislation.
The Committee also heard from the Independent Expert on the question of human rights and extreme poverty, Magdalena Sepulveda Carmona, who drew attention to the need for greater cooperation across the board, both within nations and among them. That was especially important for the achievement of her mandate, since poverty eradication required national efforts -- with the participation of vulnerable groups, non-governmental organizations and civil society -- as well as the support of the international community in terms of aid, debt relief, and other forms of assistance.
Also today, the Committee considered the human rights situation in Myanmar, hearing from the Secretary-General’s Special Adviser on Myanmar, Ibrahim Gambari, who praised the Myanmar Government’s “unprecedented” levels of cooperation with the United Nations in the wake of Cyclone Nargis last May. But, several outstanding issues remained to be worked out, including on the release of Aung San Suu Kyi and other political prisoners, and how the country would transition to a democratically-elected Government.
Following the official adoption of a new constitution in May 2008, Mr. Gambari said the Government of Myanmar had committed itself to multiparty elections by 2010, in its self-styled “7-Step Roadmap”. But that process had been rejected by a number of key stakeholders, including the National League for Democracy headed by Ms. Suu Kyi.
The representative of Myanmar responded, saying the Government had made every effort to ensure the constitutional referendum was free and fair. The fact that the referendum had been carried out as scheduled, despite being hit by the cyclone, was evidence of its commitment to the road map. He also stressed that cooperation with the United Nations was a cornerstone of his Government’s foreign policy.
The Committee will meet again at 10 a.m. Thursday, 23 October, to hear statements from the Special Rapporteurs on the situations of human rights in Myanmar, the Democratic People’s Republic of Korea and in the Occupied Palestinian Territories, as well as statements by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment and the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living.
The Third Committee (Social, Humanitarian and Cultural) met today to continue its discussion on the promotion and protection of human rights, with a focus on alternative approaches for improving the enjoyment of human rights and fundamental freedoms. It was also expected to discuss the Convention on the Rights of Persons with Disabilities.
In addition, it was slated to hear the reports of the Special Rapporteur on freedom of religion or belief, Special Rapporteur on the promotion and protection of human rights while countering terrorism, and of the Independent Expert on the question of human right and extreme poverty
Texts from Member States transmitted through letters
The Committee had before it the text of four resolutions adopted by the Inter-Parliamentary Union at its 118th Assembly in April ( Cape Town, South Africa). The texts were transmitted in a letter dated 8 July 2008 from the Chargé d’affaires a.i. of the Permanent Mission of Italy to the United Nations addressed to the Secretary-General (document A/63/123). The first text has the Inter-Parliamentary Union urging national parliaments to pass legislation requiring terror suspects to be delivered to judicial authorities immediately upon arrest, so that they are not taken anywhere else for interrogation or further detention. The second text is on the role of Parliaments and the Inter-Parliamentary Union in ensuring a halt to the rapidly deteriorating humanitarian situation in occupied Palestine, in ending the blockade in Gaza and in accelerating the creation of a Palestinian State. A third resolution, on migrant workers, people trafficking, xenophobia and human rights, emphasizes the need to protect victim’s rights. The final resolution relates to Parliamentary oversight of State policies on foreign aid, in light of Parliament’s role in shaping decisions on their respective country’s budget allocation.
It also had before it identical letters dated 19 September 2008 from the Permanent Representatives of China, Kazakhstan, Kyrgyzstan, the Russian Federation, Tajikistan and Uzbekistan to the United Nations addressed to the Secretary-General and the President of the Security Council transmitting the text of the Dushanbe Declaration (document A/63/370-S/2008/614).
Also before the Committee was the text of a press conference by the Minister of Foreign Affairs of Cuba at the Ministry of Foreign Affairs on 22 May 2008, transmitted in a letter dated 30 June 2008 from the Permanent Representative of Cuba to the United Nations addressed to the Secretary-General (document A/63/281-S/2008/431). At the press conference, the Minister demands to know whether the Chief of Mission of the United States Interests Section, based at the Embassy of Switzerland, had delivered cash from parties in the United States to a group of terrorists within Cuba. He says the activities of the Interests Section were in breach of the Vienna Convention on Diplomatic relations, and amounted to the promotion of subversive activity against Cuba.
Documents on the question of alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms
The Committee had before it a report of the Secretary-General on globalization and its impact on the full enjoyment of all human rights (document A/63/259), based on input from the Governments of Algeria, Belarus, Mauritius, the Russian Federation, Spain, Venezuela, Azerbaijan, Bosnia and Herzegovina, Ireland and Oman. Issues raised by countries include: the impact of financial liberalization on social welfare; the need to ensure that countries comply with international labour standards; and the need to guide the globalization process while protecting countries most vulnerable to the consequences of globalization.
The report says that countries also discussed the effect of globalization on the full enjoyment of human rights, particularly in the context of poverty alleviation. They said globalization could pose a serious threat to societies that were not culturally equipped to face the new ways of life, especially if practices associated with certain traditions and customs were out of touch with the spirit of the age. Countries also referred to the global food crisis as an example of the shortcomings of globalization. They noted that the rise of transnational corporations opened the possibility of large-scale violations of all human rights, which needed to be addressed. Globalization, especially with an economic focus, could lead to intense ecosystem degradation, countries said.
The report also contains inputs from the Department of Economic and Social Affairs, in which it highlighted the findings contained in numerous reports of the United Nations, including the World Economic and Social Survey, which discusses socio-economic development issues.
Also before the Committee was a report of the Secretary-General on human rights and unilateral coercive measures (document A/63/272), which contains details of requests from Belarus and Syria for information regarding unilateral coercive measures against their citizens by other nations. Belarus expressed concern over visa restrictions by the United States against high-ranking Belarusian officials and executives at Belarusian State enterprises. Their assets and property have been frozen. A similar complaint was lodged against the European Union. In addition, a temporary suspension of the Generalized System of Preferences was adopted in 2006 by the Council of the European Union at the recommendation of the European Commission, in connection with alleged violations of the right to freedom of association in Belarus. According to the Government, that measure was adopted despite an effective high-level dialogue on the matter between Belarus and the International Labour Organization and open cooperation by Belarus with the European Commission and its experts.
As for Syria, the report says the United States continued to impose unilateral coercive measures on that country through the Syria Accountability Act, which it believes was designed to exert political and economic pressure on Syria to alter its sovereign decisions.
Also before the Committee was the Secretary-General’s report on protection of migrants (document A/63/297), containing input from several countries relating to the implementation of resolutions 62/156 and 61/165 on the protection of migrants. Those countries are Argentina, Bosnia and Herzegovina, Burkina Faso, Italy, Lebanon, Mauritius, Togo, Canada, Cuba, Japan, Slovakia and Turkey.
The report also discusses activities of the Special Rapporteur on the human rights of migrants, saying that Jorge Bustamante submitted a report to the Human Rights Council on the criminalization of irregular migration. In the same reporting period, he conducted country visits to Mexico and Guatemala. According to the report, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which entered into force on 1 July 2003, has been ratified by 37 States. The report also states that the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, which monitors implementation of the Convention, considered country reports by Mali, Mexico, Egypt, Ecuador, Bolivia and the Syrian Arab Republic.
Before the Committee was a report of the Secretary-General on moratoriums on the use of the death penalty (document A/63/293 and Corr.1), which surveys respect for the rights of those sentenced to death as set out in treaties and the guidelines established by the Economic and Social Council in 1984. Drawing on input from Member States, the report surveys various motivations for establishing a moratorium on, or abolishing, the death penalty, as well as those for retaining the death penalty. It also includes statistics on the worldwide use of the death penalty, including moratoriums established in States that have not abolished this form of punishment. The report concludes by confirming the global trend towards abolition of the death penalty, the important role played by moratoriums in those States that seek to abolish it and possibilities for further work on the issue.
Before the Committee was a report of the Secretary-General on missing persons (document A/63/299). According to the report, the International Committee of the Red Cross has prepared a model law to help States develop and adopt laws on missing persons. The report discusses mechanisms for clarifying the fate of missing persons and how to manage a missing persons archive. Of key importance to the issue of missing persons is that the problem often originates in the context of armed conflict and remains well after such conflicts have ended. The transition from conflict to stability, which includes the full implementation of the rule of law, is a lengthy process. The issue of missing persons is, thus, part of the process of delivering good governance, implementing the rule of law and ending impunity. The report adds that the missing are often victims of heinous crimes, and the location where their remains are recovered are often the sites of crimes. Beyond the criminal justice dimension, the families of the missing also have entitlements under civil and public.
Also before the Committee was the Secretary-General’s report on combating defamation of religions (document A/63/365), based on input provided by 13 Member States. The replies presented in the current report indicate that States’ constitutions frequently protect freedom of religion, and prohibit discrimination against religions and on the basis of religious belief. Some replies expressed concern regarding the negative portrayal in the media of religions, in particular Islam. Some States have specific provisions in their criminal codes against the incitement of hatred on various grounds. In others, sanctions are imposed on conduct that amount to interference with worship or religious practice through violence or threat of violence, or accompanied by abuse of religious feelings of believers or ministers of religion. The desecration, damage or destruction of places of worship, religious symbols and other items related to religion are also criminalized.
According to the report, most of the replies which speak of defamation of religions do not reveal a common understanding of what is considered defamation of religions. A comprehensive review of trends and patterns would be required to establish how and where incidences of religious defamation and incitement to racial and religious hatred are manifested, before it is possible to establish the correlation between defamation of religions and the upsurge in incitement, intolerance and hatred in many parts of the world.
The Committee had before it a report of the Secretary-General on the right to development (document A/63/340), which discusses the adopted conclusions and recommendations of the Working Group on the Right to Development at its ninth session. In February 2004, the Group set up a task force, which revised the right-to-development criteria for the periodic evaluation of global partnerships for development. The Group agreed to recommend to the then Commission on Human Rights that it establish a high-level task force on the implementation of the right to development. The task force has convened four sessions.
Also before the Committee was a report of the Secretary-General on the protection of human rights and fundamental freedoms while countering terrorism (document A/63/337). The High Commissioner for Human Rights, human rights treaty bodies and various Special Rapporteurs of the Human Rights Council have all expressed grave concerns regarding extrajudicial killings and summary executions, the alleged use of secret detention centres and the practice of irregular transfers of persons suspected of engagement in terrorist activities in the pursuit of counter-terrorism activities. Serious concerns also have been expressed over the use of diplomatic assurances to justify the return and transfer of suspects to countries where they may face a risk of torture. States must ensure respect for all rights, in particular non-derogable rights such as the right to life and the prohibition of torture.
The report calls on Member States to reaffirm their commitment to the prohibition of torture and cruel, inhuman or degrading treatment in national law, prosecuting those responsible for torture and ill-treatment, and prohibiting the use of statements extracted under torture, whether the interrogation has taken place at home or abroad. Measures should be taken to ensure the access of monitoring bodies to all prisoners in all places of detention, and to abolish places of secret detention. Further, Member States should abide by the principle of non-refoulement and refrain from returning persons to countries where they may face torture. Member States are encouraged to ratify and implement the Convention against Torture and its Optional Protocol and the International Convention for the Protection of All Persons from Enforced Disappearance. States resorting to military or specialized courts or tribunals in countering terrorism are called upon to accord due attention to the basic standards of fair trial and to the right of equality before the courts, in order to ensure a proper administration of justice and respect for the rule of law.
The Committee had before it a note by the Secretary-General transmitting the interim report of Asma Jahangir, Special Rapporteur, on freedom of religion or belief (document A/63/161). In her report, the Special Rapporteur addresses citizenship issues and religious discrimination in administrative procedures. She notes that, while most States do not openly discriminate on the basis of religion with respect to citizenship issues and in administrative procedures, there are instances where State practice or domestic legislation is inconsistent with human rights standards. In particular, she is concerned about the denial or deprivation of citizenship based on a person’s religious affiliation; compulsory mentioning of selected religions on official identity cards or passports; requirements to denounce a particular faith when applying for official documents; and restricted eligibility for State functions for persons of certain faiths.
Along with an overview of her activities and a summary of her recent visits to Angola, India, Israel and the Occupied Palestinian Territory, the Special Rapporteur also presents conclusions and recommendations with regard to citizenship issues and administrative procedures in the context of her mandate. She emphasizes that the legitimate interests of the State have to be balanced on a case-by-case basis with the individual’s freedom of religion or belief, also taking into account his or her right to privacy, liberty of movement, right to nationality and the principle of non-discrimination. She also highlights some aspects that may help to determine whether certain restrictions on the right to freedom of religion or belief in the context of citizenship issues and administrative procedures are in contravention of human rights law.
The Committee had before it a report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, transmitted through a note from the Secretary-General (document A/63/223). In December 2007, the Special Rapporteur visited Guantánamo Bay to observe hearings under the United States Military Commissions Act of 2006. The persons detained at Guantánamo Bay have been categorized by the United States as “alien unlawful enemy combatants”, which the Special Rapporteur says is determined by administrative bodies within the United States Government, whose decisions are subject to limited judicial review. Those restrictions result in non-compliance with provisions of the Covenant on Civil and Political Rights. In addition, he expressed concern over the ability of detainees to seek a judicial determination of their status.
The Special Rapporteur argues that the right to a fair trial is recognized in human rights treaties, international humanitarian and criminal law, counter-terrorism conventions and customary international law, and, in certain circumstances, the denial of the right to a fair trial can amount to a war crime. Furthermore, the International Covenant on Civil and Political Rights, which encompasses the right of access to court, is not limited to citizens of the States, but must be available to all individuals, regardless of nationality, statelessness or whatever their status (as asylum seekers, refugees or other persons who may find themselves in the territory or subject to the jurisdiction of a State).
The report says that, in the case of persons directly participating in hostilities during the course of armed conflict, they may arguably be detained for the duration of the hostilities, or treated as criminal suspects for the use of their violence. However, there is the chance that ensuring a fair trial diminishes over time. In order to ensure that there is no impunity for those that commit war crimes, States should not await the end of hostilities to determine whether a person should be tried or not, and to proceed with the criminal trial in the affirmative cases.
Among other topics covered by report are: competence, independence and impartiality of courts; aspects of a fair hearing; privilege against self-incrimination (which may lead to coercive frameworks that facilitate confessions that are used as evidence in court); distinctions between admissible and inadmissible evidence; and standards of proof (proof beyond a reasonable doubt). The report also says that individuals who are listed as terrorists by the Security Council similarly deserve a right to review, because the freezing of their assets amounts to a criminal punishment.
Before the Committee was a report of the Secretary-General’s Special Representative on the issue of human rights and transnational corporations and other business enterprises (document A/63/270), on the Human Rights Council’s response to his policy framework on the protection of human rights from abuse by corporations. In that framework, he identifies criteria to strengthen non-judicial grievance mechanisms while urging States to strengthen their judicial capacity to hear complaints and enforce remedies. Under the next mandate, the Human Rights Council has tasked the Special Representative with operationalizing that framework, and the Special Representative plans to convene a group of leaders from different sectors and regions to provide strategic and substantive advice. To begin with, he has initiated collaboration with interested organizations to establish a “wiki” about dispute mechanisms around the world.
Before the Committee was a note by the Secretary-General transmitting the interim report of the Special Rapporteur on the independence of judges and lawyers (document A/63/271), Leandro Despouy, which contains a summary of the main conclusions and recommendations of the international seminar on “The protection of human rights under states of emergency, particularly the right to a fair trial” as well as a summary of the latest developments in the field of international justice. He emphasizes the role of the judiciary, together with that of international human rights protection bodies, as a crucial element to stop a worrisome trend towards the restriction of rights during states of emergency or in the name of defending national security, combating terrorism and controlling immigration. The report also refers to judges’ remuneration and the serious effect that insufficient or conditional remuneration can have on access to justice and the proper administration of justice.
Before the Committee was a note by the Secretary-General transmitting the interim report of the newly-appointed independent expert on the question of human rights and extreme poverty, Magdalena Sepúlveda Carmona (document A/63/274). In her report, the independent expert highlights some of the main concerns that will guide her activities including the impact of discrimination and social exclusion; the specific challenges faced by women, children and persons with disabilities; the lack of meaningful participation of people living in poverty; the impact of public policies on people living in extreme poverty; and the lack of awareness of poverty as a human rights issue. She also says that a human rights approach to poverty reduction and eradication had never been more urgently needed, though it should not be used as a policy panacea or as an alternative to development efforts. Rather, such an approach should complement other efforts and help promote more comprehensive and legitimate processes, policies, initiatives and practices.
Before the Committee was a note by the Secretary-General transmitting the report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Raquel Rolnik (document A/63/275). In her report, she says the right to adequate housing must be closely linked to congruent human rights such as those concerning food, water, health, work, land, livelihood, property and security of person, as well as protection against inhuman and degrading treatment, non-discrimination and gender equality and that efforts to strengthen all those rights in national normative and judiciary systems was an important goal. She also draws attention to one of the challenges to the implementation of the right to adequate housing, which is that housing, land and property tend to be viewed as marketable commodities rather than as a human right, unlike political and civil rights that generate prerogatives for the citizens and judicially enforceable obligations for the State.
The Special Rapporteur urges States to take a number of immediate measures to ensure full implementation of the right to adequate housing, including the adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights by the General Assembly; the integration of the right to adequate housing in urban planning and housing policies at local and national levels; and the adoption of urgent measures to address the plight of the homeless and in particular to stop their criminalization. She also lays out new thematic areas to be explored in the coming years, including: the relation between the organization of mega-events and housing policies, the right to adequate housing in post-conflict and post-disaster reconstruction, the effects of climate change on the right to adequate housing, migration and housing and issues of social inclusiveness, and the development of practical tools to ensure a gender approach to the right to adequate housing.
The Committee had before it a note by the Secretary-General transmitting the interim report of Olivier De Schutter, Special Rapporteur, on the right to food (document A/63/278), in which the Special Rapporteur highlights the impacts of the recent and significant increase in the prices of food commodities and recommends working within a human rights framework to achieve world food and nutrition security in the future. He says, with an estimated 900 million people suffering from hunger, ensuring the right to adequate food must be a top priority for all States and the international community as a whole. The right to adequate food was not one which any State could fulfil in isolation. Rather, all States had a shared responsibility, grounded in international law, to ensure that the international environment in which States operate enables them to respect, protect and fulfil the right to food for the benefit of their own populations.
At the country level, strategies should be put in place that would ensure the progressive realization of the right to adequate food. For example, States should consider strategies that supported local agriculture, built adequate infrastructure for transport and communication, and facilitated access to credit, to insurance mechanisms, and to inputs at an affordable price, particularly for small farming households where roughly half of the world’s hungry live. The Special Rapporteur also reaffirmed his interest in working with all interested stakeholders towards developing sustainable solutions for eradicating hunger and implementing the right to food.
The Committee had before it a note by the Secretary-General transmitting the report of the Representative of the Secretary-General on the human rights of internally displaced persons, Walter Kälin, (document A/63/286). In his report, which was submitted on the ten-year anniversary of the Guiding Principles on Internal Displacement, the Representative reviewed some of the major accomplishments in the field in the past decade, as well as the remaining challenges. He notes ongoing displacements in many countries as a result of acts of violence, the difficulty in finding durable solutions for those displaced, and the widespread impunity that exists in certain context for crimes against humanity and war crimes against displaced persons.
The report also summarizes the Representative’s country missions to Sri Lanka and the Democratic Republic of Congo and working visits to Afghanistan, Norway, Canada, Kenya, Bosnia and Herzegovina, the United States of America, Honduras, Panama, Mozambique, Madagascar and South Africa. It concludes with a set of recommendations for strengthening the response in matters relating to internal displacement for the consideration of States, humanitarian agencies and donors. In particular, he cites three pre-requisites for finding durable solutions for internally displaced persons: physical safety during and after return or resettlement, restitution of property, and creation of an economic and social environment conducive to durable returns, including access, without discrimination, to public services, livelihoods and income-generating activities.
The Committee had before it a note by the Secretary-General transmitting the report of the Special Rapporteur, Margaret Sekaggya, on the situation of human rights defenders (document A/63/288). In her report, she highlights the fundamental need for the establishment and strengthening of regional mechanisms to help protect human rights defenders. She also notes the greater emphasis she intends to place on the promotion aspect of her role, by focusing on good practices related to the protection of defenders and the promotion of the defence of human rights.
The specific needs of defenders who deal with human rights challenges deemed sensitive or controversial -- such as those working to promote the rights of minorities, indigenous peoples, and lesbian, gay, bisexual and transgender people -- are addressed in the report, as is the difficult situation women defenders often find themselves in. She adds that the entire human rights community in all its aspects had a role in monitoring and following up on human rights cases and recommendations. To mark the occasion of the tenth anniversary of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, the Special Rapporteur annexes to her report a number of key messages outlining principles and positions concerning defenders and the Declaration.
Also before the Committee is a report of the independent expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights (document A/63/289). The independent expert is requested by the Human Rights Council to develop a draft general guideline on the execution of debt repayments, to be followed by States, financial institutions and private institutions. He plans to convene multi-stakeholder regional consultations on the subject, and has already held informal meetings with civil society organizations. The independent expert faces a deadline of 2010.
Also before the Committee was a note by the Secretary-General on the composition of the staff of the Office of the United Nations High Commissioner for Human Rights (OHCHR) (document A/63/290), in which the Secretary-General transmits the report of the High Commissioner for Human Rights on the composition of the staff of the Office of the United Nations High Commissioner for Human Rights (A/HRC/7/57).
The Committee had before it a note from the Secretary-General transmitting the interim report of the Special Rapporteur on the right to education (document A/63/292), Vernor Muñoz. In his report, the Special Rapporteur draws attention to the situation regarding the right to education in emergency situations arising out of armed conflict or natural disaster. He notes that, in the past, international efforts in emergency situations focused primarily on the provision of food, health and shelter, with little attention paid to education and the vital role it played in the overall welfare of a person. The recent creation of the Inter-Agency Standing Committee Education Cluster was a very welcome development and a step towards changing previous trends.
The Special Rapporteur recommends in his report that the right to education in emergency situations be recognized by States, donors, multilateral agencies and organizations as an integral part of their humanitarian response and suggests that the international community intensify its search for models and examples of best practices, based on an increased use of qualitative research methodologies, and improved curriculum design based on a detailed analysis and understanding of pervious educations systems.
The Committee had before it a note by the Secretary-General transmitting the report of the Special Rapporteur of the Human Rights Council, Philip Alston, on extrajudicial, summary or arbitrary executions (document A/63/313), in which he addresses two main issues: the provision of effective witness protection arrangements and the importance of ensuring that military justice systems are compatible with human rights standards. He concludes that, in countries where extrajudicial executions are most common, there was generally a lack of programmes or procedures in place to protect witnesses. Such a lack was partly due to resource constraints but, mainly, due to the absence of political will. He also notes that, in too many countries around the world, military justice systems were incompatible with human rights obligations and recommends that Governments periodically review their military justice systems in light of human rights norms. The report also includes an update on visits undertaken by the Special Rapporteur to Brazil, the Central African Republic, Afghanistan and the United States of America.
The Committee had before it a report of the Human Rights Council Advisory Committee on the right to development (document A/63/318), transmitted to it by a note from the Secretary-General. The precursor to the Advisory Committee is the Subcommission on the Promotion and Protection of Human Rights on the right to development, which submitted a concept document in 2005 on an international legal standard on the right to development. The Advisory Committee held its first session in August, and will continue its deliberations on the promotion of a democratic and equitable international order at its next session.
Reports on human rights situations and reports of special rapporteurs and representatives
Before the Committee was the report of the Secretary-General on the situation of human rights in the Democratic People’s Republic of Korea (document A/63/332), in which he registers his serious concern at the lack of tangible progress on the part of the Government of the Democratic People’s Republic of Korea in addressing the range of serious human rights concerns outlined by the General Assembly in its resolution 62/167. The report draws particular attention to the food situation in the Democratic People’s Republic of Korea and its impact on the population, as well as the need for the Government to allocate budget resources and adopt policy measures to alleviate the impact of the food situation, and to prevent discrimination in the distribution of food and health services.
While welcoming the efforts undertaken by the Government of the Democratic People’s Republic of Korea in facilitating access for humanitarian relief and increasing cooperation with United Nations agencies in regards to the food situation, the Secretary-General notes, in his report, the Government’s lack of cooperation and constructive dialogue with the Office of the United Nations High Commissioner for Human Rights, the Special Rapporteur on the situation of human rights in the country, or other special procedures mandate-holders. As well, the report draws attention to the fact that the Democratic People’s Republic of Korea has neither recognized the resolutions adopted by the Human Rights Council and the General Assembly on the situation of human rights in the country, nor accepted the High Commissioner’s offer to engage in technical cooperation activities, as recommended in the resolutions.
The Secretary-General urges the Government to safeguard fundamental rights and freedoms and show visible signs of domestic legal reform, so as to fulfil its treaty obligations and comply with international standards and he renews his recommendation that the authorities of the Democratic People’s Republic of Korea engage in a constructive dialogue with the High Commissioner for Human Rights. The Secretary-General also welcomes the positive developments under the six-party talks and calls upon all regional and international actors to facilitate the creation of an environment conducive to generating greater engagement between the Government of the Democratic People’s Republic of Korea and the international community.
The Committee had before it a report of the Secretary-General on the situation of human rights in the Islamic Republic of Iran (document A/63/459). According to the report, the Penal Code and the Code of Penal Procedure in Iran provide various procedural guarantees aimed at ensuring due process of law. It was reported that a revised Penal Code drafted in January 2008 was being debated in Parliament, which, if adopted, would lead to provisions that were incompatible with international human rights standards. That would include an article on apostasy that would make the death penalty mandatory for conversion from Islam to other religions. Some negative trends have also been reported in terms of rights violations against women, university students, teachers, workers and other activist groups. Ongoing harassment against human rights defenders, including women’s rights activists, has been reported. In addition to those issues, the report touches on the use of torture and cruel, inhuman or degrading treatment or punishment, including flogging and amputations; death penalty for juveniles; and violations of the rights of minorities, such as allegations of violence targeting Baha’is and their homes, shops, farms and cemeteries throughout the country.
The Secretary-General encourages the Government of the Islamic Republic of Iran to continue to revise national laws, particularly the new Penal Code and juvenile justice laws, to ensure compliance with international human rights standards and prevent discriminatory practices against women, ethnic and religious minorities and other minority groups. He also welcomes recent steps taken by the Government to explore cooperation on human rights and justice reform with the United Nations. He encourages the Government to ratify major international human rights treaties, in particular the Convention on the Elimination of All Forms of Discrimination against Women and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and to withdraw the general reservations it has made upon the signature and ratification of various human rights treaties, as recommended by the respective treaty bodies.
Before the Committee was the Secretary-General’s report on the situation of human rights in Myanmar (document A/63/356). At the time of the Special Adviser’s visit in November 2007, the Government had just completed the first step in its seven-step road map to democracy, the National Convention. By the time the Special Adviser returned to Myanmar in August 2008, the Government was preparing for the fifth step in its road map -- multiparty elections in 2010. At the same time, a number of key stakeholders, including the National League for Democracy, have formally rejected the Constitution and the process by which it was adopted, and are reserving their position with regard to their participation in any election under the current circumstances. Thus, despite the Government’s efforts in implementing its road map process and addressing the challenges facing the country, the political situation in Myanmar has become potentially more polarized.
The report further states that the United Nations remains concerned about reports of armed conflict and associated human rights abuses and humanitarian problems in ethnic minority areas, such as Kayin and Kayah States. Substantive talks leading to the sustainable cessation of hostilities between the Government and armed ethnic groups need to be concluded. Although the Government has reached ceasefire agreements with a majority of armed ethnic groups, disarmament plans are yet to be formalized. Having seen first hand the nature and complexity of the challenges facing Myanmar, the Secretary-General is aware of the need for the United Nations and the international community to persevere in helping Myanmar to address those challenges through incremental but tangible progress. Following his meetings in May with the Chairman of the State Peace and Development Council, Senior General Than Shwe, and other members of Myanmar’s senior leadership in the capital city, Nay Pyi Taw, the Secretary-General is determined to continue his good offices efforts through his Special Adviser.
The Committee had before it a note from the Secretary-General transmitting the report of the Special Rapporteur, Vitit Muntarbhorn, on the situation of human rights in the Democratic People’s Republic of Korea (document A/63/322), in which he notes, with regret, that the authorities of the country had declined to cooperate with him in his work. The report examines the human rights situation in the Democratic People’s Republic of Korea from various perspectives, including human rights and the development process, access to food and other necessities, rights and freedoms, displacement and asylum, groups of special concern, and consequences of violence and violations. In his report, the Special Rapporteur underlines the long-standing and systematic nature of human rights transgressions in the country, which were highly visible, substantial and exponential. He also notes that the six-party talks regarding the nuclear issue on the peninsula provided an avenue to address some key human rights issues and created more opportunities in a variety of settings to deal with various humanitarian matters between the parties.
The Special Rapporteur ends his report with a variety of recommendations addressed to both the Democratic People’s Republic of Korea and to the rest of the international community. In particular, he underscores the need to press the Democratic People’s Republic of Korea for concrete actions to address the human rights situation in the country, which remained grave on several fronts. He specifically recommends that the Democratic People’s Republic of Korea ensure the effective provision and access to food and other basic necessities for its citizens and to abide by international human rights standards, overall. He invites the international community to emphasize more strongly the need for participatory, sustainable and equitable development in the country, and highlight strategies for food security, while continuing to ensure that humanitarian aid reaches the target groups, including through effective monitoring. The report also recommends maximum dialogue and engagement between the Democratic People’s Republic of Korea and the United Nations system on human rights to ensure improvement of the protection of human rights at the national and local levels.
The Committee had before it a note by the Secretary-General transmitting the report of the Special Rapporteur, Tomás Ojea Quintana, on the situation of human rights in Myanmar (document A/63/341). The report concentrates on issues related to the protection of human rights in the context of the new Constitution and the question of participation in the democratic process and organization of the 2010 elections. The Special Rapporteur also addresses the right to assembly and right to freedom of opinion and expression in the country, including the crackdown on the 26-29 September 2007 demonstrations and its implications for free elections in 2010. He also raises the question of international humanitarian law and protection of civilians, as well as the situation of specific groups such as ethnic groups, women and children.
The Special Rapporteur, in his report, elaborates on the mechanisms in place to ensure maximum protection in the context of the natural disaster cyclone Nargis, which struck Myanmar in May 2008. During his most recent visit to Myanmar, the Special Rapporteur met with Myanmar’s Human Rights Group and makes recommendations in four core human rights elements: a review of national legislation in accordance with the new constitution and international obligations; the progressive release of prisoners of conscience; the armed forces; and the judiciary. Annexed to the report is a programme of the Special Rapporteur’s visit to the country, during which he met with national authorities, prisoners of conscience, and local associations among others.
The Committee had before it a report of the Special Rapporteur, Richard Falk, on the situation of human rights in the Palestinian territories occupied since 1967 (document A/63/326). The report describes the political developments and major changes in the setting of the occupation, specifically details regarding the breaching of the wall separating Egypt from the Gaza Strip in January 2008. It highlights some encouraging developments in the region that might indirectly lead to improvements in the occupation regime, such as the negotiation of an agreement between Hizbullah and the Government of Lebanon and ongoing negotiations between Israel and the Syrian Arab Republic. The Special Rapporteur provides three case studies in an effort to examine the significant human rights challenges in the region. Those case studies include: the case of Mohammed Omer, dealing with freedom of expression and harassment of media personnel; the closures and Israeli Defense Forces military operations in the West Bank, including abuses against the civilian population in Nablus; and demonstrations against the wall in the West Bank and the right to peaceful assembly.
The Special Rapporteur writes, in his report, that it was discouraging to note Israeli settlement growth and further restrictions on West Bank movement, as well as the abuse of international humanitarian law associated with the separation wall and owing to Israeli use of excessive force to quell non-violent demonstrations. Attention is also drawn to abuses by Israel at border crossings and the crisis in health care, especially in Gaza. The report laments the failure of Israel to implement the recommendations of the International Court of Justice, as endorsed by the General Assembly. It calls for a further clarification of the rights of the Palestinian people by recommending that the General Assembly seek legal guidance as to the extent to which the occupation is endangering the realization of the Palestinian right of self-determination. It also recommends the resumption of economic assistance by the international community to Gaza, in view of the ongoing health crisis. Such assistance was not dependent on whether Hamas satisfied political conditions set by Israel or whether the ceasefire held.
Documents on the Convention on the Rights of Persons with Disabilities, the Committee
Also before the Committee was a report of the Secretary-General on the status of the Convention on the Rights of Persons with Disabilities and the optional protocol thereto (document A/63/264 and Corr.1), which entered into force on 3 May. The report describes actions taken to develop standards and guidelines on accessibility within the United Nations. For instance, these include measures taken to install assistive listening devices, as well as to provide materials in large print and Braille and audio recordings. Regarding human resources policy at the United Nations, the report says the recently established Human Resources Network of the Working Group on Disability, Chief Executives Board for Coordination, is developing a common policy statement on the employment of persons with disabilities in the United Nations workplace. In addition, various agencies of the United Nations are conducting feasibility studies for improving accessibility to their facilities.
The report says the Inter-Agency Support Group on the Convention -- established by the Chief Executives Board in September 2006 to prepare a strategy for advancing its implementation -- has met twice so far. The Special Rapporteur on disability of the Commission for Social Development has convened numerous regional and national conferences on disability, raising awareness of the Convention within Governments and within civil society.
Introduction of reports
NAVANETHEM PILLAY, the High Commissioner for Human Rights, addressing the Third Committee for the first time since she began her four-year term in September 2008 and introducing the report on the activities of her Office, said that she had assumed her functions as High Commissioner in a year marked by a number of important anniversaries, specifically the sixtieth anniversary of the Universal Declaration of Human Rights and of the Genocide Convention, the tenth anniversaries of the Declaration on Human Rights Defenders and of the Guiding Principles on Internal Displacement, and the fifteenth anniversary of the Vienna World Conference on Human Rights, which had established her mandate. Such important anniversaries not only represented rallying points for the human rights community, but also opportunities to reflect on the progress made and the challenges that remained. Such moments should also galvanize all to reflect more systematically on how the interconnection of human rights, development, peace and security could enhance everyone’s freedoms, entitlements, prosperity and safety.
“The Universal Declaration is a beacon of hope for the future, as it contemplates a world with the full realization of civil, political, economic, social and cultural rights, without distinction,” she said. That vision should be a unifying, rather than divisive, force within and among all cultures. Yet, for all the solemn commitments and normative advances made in the promotion and protection of international human rights, serious implementation gaps remained. Impunity, armed conflict and authoritarian rule had not been defeated and, lamentably, a trade-off between justice and peace was often erroneously invoked when societies emerged from conflict and combatants returned to their communities. Human rights were also, at times, sidestepped in the name of security and there were still too many countries in the world that systematically discriminated against minority groups. Indeed, a root cause of violence against women was discrimination and, therefore, gender equality would contribute to development and security, as well as human rights.
Human rights norms provided uniform and universal standards that helped ensure that all were held to the same measure, she said. Her priority would, thus, not be the ranking of various human rights, but rather their implementation on the ground, in a way that affected and improved the lives of all persons. The credibility of human rights work depended on a commitment to truth, impartiality and integrity, with no tolerance for double standards or selectivity. That was what would guide her in her work as High Commissioner and she intended to ensure that the universality of human rights norms guided discussions in politically charged environments. She also hoped to instil both measure and substance to political discourse in an objective manner.
The development of an expanding framework of international and national law represented an effort to implement the principles of the Universal Declaration, she said. She welcomed the adoption, by the Human Rights Council, of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, which was now before the Committee for adoption. That Optional Protocol established a procedure of individual communications for cases of alleged violations of economic, social and cultural rights and underscored the equal value of all human rights. The mechanisms that had been fostered by the expanding framework, such as the treaty bodies and special procedures, had created a global system for the promotion and protection of human rights worldwide.
The challenge now was to make that system work better, to overcome the persisting abuses, omissions and neglect that still stood in the way of the full implementation of human rights, she said. That was one of her priorities and she intended to use her Office to promote the strengthening of the system and the productive interaction of the various mechanisms within it. She also intended to use the influence of her Office to promote the implementation of human rights treaties, to encourage universal ratification of those treaties and to promote the strengthening of the treaty body system. The work of the independent special procedures was also of note, as their impartial vigilance ensured that emerging issues were identified and all human rights situations were addressed. States should, therefore, cooperate and engage with the special procedures in a meaningful and constructive manner.
The launching of the Universal Periodic Review was also a progressive step forward towards the promised impartial scrutiny of all Member States’ human rights records, she continued. That initiative carried a promising potential to reduce the politicization and selectivity that had long exacerbated already dire human rights conditions around the world, though only time would tell whether the review would effectively improve human rights situations on the ground. However, human rights mechanisms and instruments were not self-fulfilling, and more determined collaborative action -- at the international level and national level -- was needed to maximize the potential for change and development.
There were a number of emerging human rights issues that required international attention, she said. Climate change upheavals posed a direct threat to a wide range of universally-recognized human rights, including the right to food, adequate housing, water and the right to life itself. The food crisis also had a human rights dimension, as the lack of affordable food had been more acute for individuals, families and communities who had already been victims of deep-rooted practices of exclusion and discrimination. The financial crisis was already spilling into the global real economy, with dire and possibly enduring consequences. No measure should be overlooked to mitigate the most nefarious effects of those crises and a good starting point for action in that regard could be offered by paying heed to the Secretary-General’s appeal to do more and work faster in meeting the Millennium Development Goals.
Yet, in too many cases, she said, the Millennium Development Goals were pursued in isolation from human rights. Among the “added values” of the human rights approach to poverty reduction and the right to development was that it provided a framework of institutions and norms to help reduce disparities, and it helped mediate conflicting claims that inevitably arose through development processes. Rights-based programming could provide content and legitimacy to capacity-development, and could make that process more sustainable in the long run.
Terrorism represented a towering threat and profound challenge to human rights and States had a duty to protect their populations against it, while being mindful of human rights obligations, she said. States must avoid vague, unclear or overbroad definitions of terrorism, which might lead to inappropriate restrictions on the legitimate exercise of fundamental liberties and must also ensure that measures to combat terrorism complied with international human rights law. Migration was another major human rights challenge and a human rights approach to migration was the best way to address that issue. Migration policies should be based on human rights principles and draw upon the International Convention on the Rights of All Migrant Workers.
Racism, xenophobia, discrimination and intolerance were problems that continued to occur on a daily basis, across the world, she said. In regards to the review conference that would take place in Geneva in 2009 on those issues, she accepted that there would be diverging points of view among States and said that she would try to promote participation and address those concerns in a constructive manner. Having grown up in apartheid South Africa, she knew all too well what it was like to live in an environment permeated by racism and she expressed her hope that all States would take the opportunity provided by the review conference to give new momentum to the struggle against discrimination, xenophobia, intolerance and racism, and to bring into focus the need to implement the Durban Declaration and Programme of Action at the national level.
Sixty years after the adoption of the Universal Declaration, the world understood much more clearly that the pursuit of human rights required individual and collective commitment, she said. That commitment must overcome partisanship and narrowly defined interests, and required imagination, energy, diplomacy, determination and hard work. In closing, she expressed her confidence that States and civil society could harness those qualities and put them to optimal use in the service of human rights.
Questions and Answers
All speakers congratulated Ms. Pillay on her appointment, and voiced support for her Office.
The representative of France, speaking also on behalf of the European Union, turned the Commissioner’s attention to the upcoming review process of the 2001 Durban Conference, stressing the need for Member States to act “as one” in ensuring that tangible results were obtained. In his opinion, States should not “re-open” debates that had already been brought to a close. He asked what the Commissioner believed were the prospects of a consensus at the Durban review conference.
The representative of Benin remarked that the world was divided on the issue of human rights, which ought not to be the case, seeing that all human beings benefited from the exercise of such rights. Sixty years after the Universal Declaration on Human Rights was proclaimed, there still existed some men and women who did not know their rights. He suggested that it was time to step up efforts to ensure that people were made fully aware of their rights, including the limitations of those rights, and asked Ms. Pillay for her comments on that subject. He also asked Ms. Pillay to elaborate further on her view on the promotion of human rights as part of the development process.
The representative of Lebanon asked to know more about how Ms. Pillay would ensure that nations maintained a spirit of cooperation in the face of multiple global crises, especially with regard to the right to food for the poorest people. On the issue of defamation of religion, he asked how she intended to strike a balance between combating religious intolerance with promoting the freedom of speech.
The representative of Canada did not ask a question, but made comments regarding the strategic management plan devised by Ms. Pillay’s predecessor, which had laid out an agenda for advancing the application of human rights on the ground through an expanded field presence, among other things. She noted that the Office of the High Commissioner also functioned as a Secretariat to the Human Rights Council and provided support to treaty bodies, Special Rapporteurs and the universal periodic review process.
The representative of China, paying tribute to the Commissioner’s background in international law, asked how she planned to promote the fair, impartial and objective application of human rights norms, devoid of politicization.
In her response to the representative of France, Ms. PILLAY stressed that it was the responsibility of Member States to work out a consensus amongst themselves. The best approach, in her view, was for nations to take a “victim-focused approach”, and for them to be mindful of the importance of protecting victims’ rights on the ground, with the help of civil society organizations, for example. A victim-based approach might help nations avoid falling into the realm of “defensive politics”, where some would seek to exclude discussion of certain issues. She herself would try to assist in the search for compromises, and to help countries avoid controversies that would divert them from the issues at hand, such as those controversies associated with the 2001 Durban Conference. She would also seek to encourage the creative engagement of civil society in the process.
Turning to the question of human rights education, she noted that, as a prerequisite to participation in the universal review process, it was first necessary to build a human rights culture on the ground. To that end, her Office’s field presence would help in matters of technical cooperation and public education, which would also involve training of the police. She would also continue efforts to promote the Decade for Human Rights Education.
To the question raised by the representative of Lebanon, she said the former High Commissioner had addressed defamation of religion by providing guidance on how that issue should be addressed through the lens of international law and articles 19 and 20 on the freedom of expression and its limitations. She herself would continue along those same lines. On the right to food, she noted that the Human Rights Council had met to discuss the food crisis and had requested the relevant Special Rapporteur to report on the fulfilment of that right. She would continue to monitor that situation.
With regard to the strategic plan and framework devised by Ms Arbour, she expressed her commitment to continue with it. On the future work of the Human Rights Council, she said she would continue to support that body’s work. She was pleased that 32 countries had undergone the universal periodic review process in a constructive manner, and she had found that the facts and information brought before the Council by the special procedures had been helpful in addressing human rights issues in an impartial manner.
Following the first round of answers by Ms. Pillay, the representative of Egypt asked for clarification on the “new trends” in the work of the Office of the High Commissioner, specifically its new emphasis on a rights-based approach to development. She asked for Ms. Pillay’s perspective on what a rights-based approach really meant, as well as her perspective on how that approach might relate to social, cultural and economic rights. She also asked the High Commissioner for more information regarding her Office’s regional field presence -- and how regional offices would be financed -- as well as the geographic representation of staff within her Office.
Liechtenstein’s delegate highlighted the gap between existing human rights standards and implementation of those standards on the ground and he expressed his delegation’s hope that narrowing that gap would continue to be a priority for the Office. He also noted that the presence of the Office of the High Commissioner for Human Rights in New York was not sufficiently felt, particularly in terms of policy-making, and he asked the High Commissioner what type of assistance she might need to allow her to increase her Office’s presence at Headquarters.
The representative of Chile, following up on what the delegate of Egypt had said regarding geographic representation, asked for the gender representation within the Office of the High Commissioner. She also asked how the Office related to civil society in its work and for specific examples that came out of the seminar Ms. Pillay mentioned on freedom of expression and incitement of hate speech, articles 19 and 20 of the International Covenant on Civil and Political Rights.
The representative of Sudan stressed the importance of dealing with all rights equally and placing economic, cultural and social rights on the same level as political and civil ones. He asked the High Commissioner what her Office would do to ensure that equality. He also drew attention to the fact that, at times, field work was done without full coordination with national authorities and he asked what relationship she saw between her Office and respective countries, specifically in regards to capacity-building and technical assistance. Turning to the Universal Periodic Review, he said that it would be necessary to ensure that the review was more neutral and comprehensive in its work, and he asked for the High Commissioner’s thoughts on that issue.
Also on the Universal Periodic Review, the representative of Argentina asked how States might improve the presentation of their reports to most fully benefit from that mechanism.
Ms. PILLAY, responding to the question by Egypt on a “human rights-based approach”, said that such an approach was a methodological tool to further mainstream human rights within the United Nations system and did not, in any way, imply conditionality in regards to work with countries. A human rights-based approach had three main goals. The first goal involved the promotion of greater awareness on human rights issues and how they related to development, for example, on education, the right to education would be highlighted. The second goal related to process; human rights should guide all phases of United Nations programmes and should promote the participation of all parties concerned. For instance, the meaningful participation of poor women in poverty reduction discussions would be a priority and they should be allowed to have a say in what development projects best responded to their needs. The third goal related to outcomes and would help ensure that United Nations activities for development were formulated at the request of Member States, based on the principle of national ownership, and would be in line with human rights standards.
Regarding geographical representation within her Office, she said she took that issue very seriously, as it had a direct impact on the credibility of the Office. Her predecessor had initiated a number of activities to improve the situation regarding geographic representation, as well as gender representation and those efforts would be addressed in detail by other members of her Office in the panel following her own.
She welcomed the comments made by the representative of Liechtenstein regarding the implementation gap and the lack of presence of her Office in New York. She shared those concerns and said she was committed to bolstering her Office’s work at Headquarters and to narrowing the implementation gap as a main priority.
She also shared the concern expressed by the representative of Chile regarding gender representation within her Office. With regard to that delegate’s question on the role of civil society in her Office, she said civil society was central to the work of her Office and it had established a dedicated civil society unit to support the work of those organizations and to help them fully engage with various human rights procedures and mechanisms. In response to her question regarding the seminar examples on articles 19 and 20 of the International Covenant on Civil and Political Rights, she said that experts at the seminar had agreed that incitement was a fact-based situation and should be judged by judges. She also reminded all delegates that the reports of the experts were available on her Office’s website.
Responding to Sudan’s question about country engagement, she said support to countries was based on partnership and cooperation with Member States, and encompassed all the various tools at the disposal of her Office. As such, country engagement did not exclusively imply a field presence, but also included support to countries from the Office in Geneva. In regards to field presence, she stressed that her Office did not take on any project in any country without the approval of the concerned Government. Some Member States might erroneously assume that having an OHCHR field presence in their country was somehow implying that the country was a human rights violator. The reality was that a field presence should be seen as beneficial to host countries because of the support those offices could offer.
Regarding the Universal Periodic Review, she said that, to date, the review mechanism was meeting expectations. The fact that, less than two years after its establishment, the Council had managed to consider 32 countries was proof of its success so far. As to its future success, it was difficult to determine at such an early stage. As the process continued, it would be easier to assess what further guidance might be needed. In terms of improving review reporting, she referred to the “tremendous work” done by mandate holders who had provided facts, advice and recommendations on the issue, and reaffirmed her Office’s support to States in preparation of those reports.
The representative of the Russian Federation noted that the Office must now deal with the consequences of the financial and food crises on the promotion and protection of human rights, as well as the impact of climate change on people’s lives. He asked what the High Commissioner planned to do to raise her Office’s level of expertise on those issues. He wondered whether the Office stood ready to make use of the Office on the dialogue among cultures.
New Zealand’s representative said she would welcome support for a workshop on treaty body processes, which her country planned to hold for the benefit of smaller countries that often felt burdened by those processes. She also asked how the High Commissioner intended to mainstream the rights of people with disabilities into her overall agenda, as well as how the High Commissioner would bring about the effective operations of special procedures.
Thailand’s delegate asked how the High Commissioner intended to raise the visibility of the Human Rights Council and whether her Office was interested in contributing to the work the nascent Association of Southeast Asian Nations (ASEAN) human rights body, and other regional bodies. Similarly, the representative of Australia paid tribute to the Office’s rigorous reform agenda that had resulted in its increased capacity to respond to issues at short notice, and had shifted its focus to work being done in the field. He asked for suggestion on how delegations could work with the regional office in Suva to promote and protect human rights in the Pacific, given their lack of representatives in Geneva. He added that the High Commissioner’s commitment to truth, impartiality and integrity could well prove to be her most potent weapons.
The representative of the United States asked if there was anything the High Commissioner would do differently to bridge the gap between human rights standards and their implementation in the law and practice of Member States.
Responding to the question raised by Australia first, Ms. PILLAY said she would continue to offer the people of the Pacific help in capacity-building. On the issue of disabilities, she said her Office was guided by the rights enshrined in the Convention on the Rights of Persons with Disabilities. Members of the treaty body monitoring its implementation were expected to be elected later in the month, and her Office would support that new Committee.
She took note of the comment by the representative of Thailand on greater visibility for the Human Rights Council, and assured her of her support in countries of the world, such as those belonging to ASEAN.
To the question posed by the United States delegate, she said she would promote implementation of human rights standards by encouraging States to allow mandate holders to visit countries. Many experts had already done so. She said she would examine how the expertise of independent experts could be instilled into the universal review process.
The representative of Colombia stressed the valuable cooperation the Office of the High Commissioner had given her country in the past and said her Government looked forward to the visit of the High Commissioner to Colombia, which had recently been confirmed. In terms of the strategic programme for human rights 2010-2011, she asked whether her Office had recommendations that States should take into account to improve ongoing consultations on that issue.
The representative of Pakistan expressed his delegation’s concern over ongoing discrimination, inequality and intolerance and asked for more information on what the High Commissioner had in mind for future work on those issues.
Syria’s delegate asked the High Commissioner for information regarding what plan of action her Office had developed or was considering developing to help promote and protect the rights of those suffering under occupation.
The representative of Algeria noted the major human rights challenge presented by the issue of migrant workers and asked the High Commissioner what her Office planned to do regarding the ratification of the International Convention on the Protection of the Rights of All Migrant Workers since currently only 34 developing countries had ratified the convention, and no developed countries had.
The representative of Switzerland welcomed the work of the High Commissioner and expressed his delegation’s support for her Office, as did the representative of Iran who also expressed his delegation’s support for the Durban review conference.
Also welcoming the work of the High Commissioner, the representative of Malaysia asked the High Commissioner how she would approach specific issues regarding the utility of country-specific reports and the right to development, especially in regards to efforts to bring Member States together on those issues. She also asked how regional human rights mechanisms and conventions could help support international human rights treaties.
The representative of the United Kingdom asked about plans to further integrate human rights within the United Nations system and what Member States could do to help her in that work.
With regards to the Office’s presence in the field, the representative of Cuba asked whether the High Commissioner would extend support and cooperation efforts to developed countries, as well as developing countries, so the principle of the universality of human rights would be observed in all nations.
The representative of the Russian Federation, after hearing Ms. Pillay’s initial set of answers, repeated his earlier questions on how the Office, with its current resources, would deal with the impacts of climate change and the finance and food crises on realizing human rights, and on whether the Office intended to contribute to the dialogue among cultures.
Responding, Ms. PILLAY said it would indeed be possible to address the right to food, and other critical emerging issues, within the framework of a dialogue of cultures. However, it was also important to be mindful of the capacity constraints facing her Office. She acknowledged the importance of engaging with regional organizations so as to remain “relevant”, especially when tackling climate change and rising food prices. The Human Rights Council had requested her Office to study the link between human rights and climate change, which was already underway. In addition, her Office had recently embarked on consultations regarding the relationships between human rights and financing for development. The Office had a Research and Development Unit that possessed the expertise to conduct research and make recommendations on such issues. In addition to such expertise, the Office also relied on experts and mandate holders to provide information on how best to address issues and would continue to work with Member States in the same vein. Expert seminars, such as on the freedom of speech and religious/racial hatred, could be viewed as one way in which her Office was pursuing dialogue.
Regarding the issue of the protection of vulnerable populations under colonization or foreign occupation, she said her Office would adhere to strict application of human rights law, humanitarian law, refugee law and criminal law and was committed to the implementation of those legal frameworks throughout the world, without double standards.
On the question relating to the International Convention on migrant workers, she would call on States to ratify that Convention and request that States’ policies on extra-legal migrants be in accordance with human rights and international law norms. The issue of migration was a challenge facing many countries, and she intended to use the influence of her Office to encourage universal ratification of that document and to keep watch on measures being adopted in countries to address that issue.
Turning to the right to development, raised again by the representative of Malaysia, she said dialogue would continue to be key in facing those challenges. She looked forward to the adoption of the Optional Protocol on economic, social and cultural rights, and would continue work on interpreting international standards set by the Committee on Economic, Social and Cultural Rights, as carried out through the work of the Special Rapporteur on the right to food and on adequate housing. The Office would also look to analytical studies and consultations conducted on the intersection between human rights and climate change, and other emerging issues.
She thanked the Government of the United Kingdom for its expression of support, and recalled that the 2005 World Summit outcome document had called for the integration of the promotion and protection of human rights into national policies and in mainstreaming human rights throughout the United Nations system. It also called for closer cooperation between her Office and other United Nations bodies. Since an important aspect of her work was to partner with others within the United Nations system, she looked to Members States for support in establishing a high-level position of Assistant-Secretary-General in the New York office to pursue mainstreaming objectives.
On achieving a regional balance amongst staff, she said efforts had already been taken towards that end, and such efforts had addressed the preponderance of staff from Western Europe compared to developing countries. Those numbers had dropped, and statistics would be made available to Member States soon. She herself would carry out country visits, including to developing countries, as her predecessor, Ms. Arbour, had done. Ms. Arbour, she pointed out, had not hesitated to issue press statements pointing to violations in developing countries. She would focus on racism, discrimination, migration and terrorism in developed and developing countries alike.
Statement by Special Adviser on Myanmar
The Special Adviser for the Secretary-General on Myanmar, IBRAHIM GAMBARI, introducing the Secretary-General’s report on the situation of human rights in Myanmar (document A/63/356), highlighted the difference between the report of the Special Rapporteur on the situation of human rights in Myanmar and the Secretary-General’s report, which focused more specifically on efforts by his good offices during the reporting period. The Secretary-General had visited Myanmar twice and his initial visit had been the first visit by a United Nations Secretary-General in 44 years. During the reporting period, the Special Adviser visited Myanmar three times -- in November 2007, March 2008 and August 2008 -- and the overall purpose of those visits had been aimed at promoting reconciliation, restoring democracy and fostering greater respect for human rights.
More specifically, he said his visits had focused on five key areas of concern, including: the release of all political prisoners; the need for enhanced dialogue; the need to build a more inclusive and credible political transition process that would eventually lead to a democratically-elected Government; improvements in economic conditions in the country; and regularizing cooperation through the good offices process. The good offices were a process, not a single event or a series of events, and they required sustained engagement through regular visits and interaction. Comprehensive engagement on a broad range of political, economic, human rights and humanitarian issues should yield concrete and tangible results and the international community should work constructively to support the good offices of the Secretary-General towards that end. In the aftermath of cyclone Nargis, there had been an unprecedented level of cooperation between the Government of Myanmar and the United Nations towards a comprehensive humanitarian response and those efforts had demonstrated the merits, and the necessity, of collaboration instead of isolation.
Turning to the ongoing political process in the country, Mr. Gambari noted that, following the official adoption of the new constitution in May 2008, the Government of Myanmar had committed itself to multiparty elections by 2010. Since then, a number of key stakeholders, including the National League for Democracy, had formally rejected the new constitution and the process by which it had been adopted and were now reserving their position with regard to their participation in a future election. Thus, despite Government efforts, the political situation in Myanmar was becoming even more complex. He also noted, with regret, that promising efforts in negotiations for the release of political prisoners, in particular Aung San Suu Kyi, had stalled, though he reminded the Committee that efforts were still ongoing.
While the spirit of cooperation between the United Nations and Myanmar had improved in recent months, more was needed, he said. Expectations remained high that Myanmar would start taking substantive action on proposals made by the Secretary-General’s good offices. The role of the United Nations was to facilitate the efforts of all parties to promote reconciliation, restore democracy and ensure respect for human rights. There was no real alternative to achieving those ends other than a peaceful political transition process, in which the Government and the opposition would find ways to talk, with a view to advancing the shared objective of a united, peaceful and democratic Myanmar. While it was essential for the United Nations to have the support and goodwill of all partners, Myanmar carried the main responsibility and the Government of Myanmar needed to show its commitment to the process by working with the Secretary-General’s good offices to build peace, democracy and a respect for human rights.
Questions and Answers
The representative of Myanmar said he was gratified to see that the spirit of cooperation between Myanmar and the United Nations had been reflected in the Secretary-General’s report. But, he had been disappointed to see doubts being cast on the constitutional referendum. The fact that the Government had not reneged on the decision to hold that referendum as scheduled, despite the country being hit by Cyclone Nargis, attested to its commitment to carrying out its “7-step road map” to democracy. Furthermore, the Government had made every effort to ensure that the referendum process had been free and fair, and made sure that it did not interfere with humanitarian operations that had been underway at the time.
As for the Government’s response to Cyclone Nargis, he said he had found it “sad” that some Governments were attempting to mix the humanitarian crisis with politics. He believed the Government had responded expeditiously to that emergency, setting up 419 relief camps within days and providing shelter to countless victims. He noted that the United Nations had launched a flash appeal to the international community, resulting in international assistance arriving by land, sea and air. Secretary-General Ban Ki-moon, who visited Myanmar from 22-23 May, remarked that the Government, with the help of the international community, had put in place a functioning relief programme. Further, the representatives of Myanmar, ASEAN and the United Nations had formed a tripartite core group to coordinate relief efforts and conduct a post-cyclone assessment. That report acknowledged the prompt and systematic response of the Government and people of Myanmar.
He stressed that cooperation with the United Nations was a “cornerstone” of Myanmar’s foreign policy. Mr. Gambari had played an important role in fostering a spirit of cooperation, and it was for that reason that the Government of Myanmar trusted and had confidence in him.
The representative of Indonesia stressed that the situation in Myanmar was complex, and that the international community must be mindful of certain dynamics when trying to encourage progress in that country. He said Indonesia supported the work of the Secretary-General and Mr. Gambari in that regard, and acknowledged the improvement in relations between the Government of Myanmar and the United Nations. He said he wished such cooperation would continue, and further underscored the need for tangible results on “various issues of concern”, including the five key areas outlined in the Secretary-General’s report. It was of the utmost importance at this “delicate” juncture that the international community “speak with one voice”. He exhorted the Chair of the Committee to ensure that the Committee engage on the issue of Myanmar in the sprit of consensus.
The representative of Liechtenstein asked whether it was true that the Secretary-General would be visiting Myanmar, and, if so, when such a visit would take place and what preparations had been taken to that end.
The representative of Thailand reiterated his country’s position that, as a neighbour to Myanmar and Chair of ASEAN, it would continue to render support to the good offices of the Secretary-General and Mr. Gambari with regard to Myanmar.
Responding to those remarks, Mr. GAMBARI recalled that, 15 years ago, he had appeared before the Third Committee to talk about the issue of democracy and human rights in his own country, Nigeria. As a country, Nigeria had been involved in a complex process of democratization. He wished to share with the Government of Myanmar his experience, as Nigeria turned from being a pariah to a respected member of the international community.
As for a possible visit to Myanmar by the Secretary-General, who had already visited the country twice in the wake of the cyclone, Mr. Gambari confirmed that such a visit was being discussed. The Secretary-General would return at an appropriate time, if conditions were ripe to advance the agenda there.
Statement by the Special Rapporteur on freedom of religion or belief
ASMA JAHANGIR, Special Rapporteur on freedom of religion or belief, said, following a review of her mandate by the Human Rights Council in December 2007, she had focused her work on four main areas. First, in order to promote the adoption of measures at the national, regional and international levels, she had undertaken various kinds of activities. For instance, at the national level, she had conducted brainstorming meetings with representatives of States and civil society. At the regional level, she had worked to raise awareness about intercultural dialogue and, at the international level, she had supported the proposal for a United Nations Decade of Inter-religious Dialogue and Cooperation for Peace, with a view to encouraging inter- and intra-religious dialogue in various forms and on different levels. She had also participated in a joint effort by Special Procedures’ mandate holders that was aimed at providing substantive input to the Durban Conference review process.
Her second main area of focus was in identifying existing and emerging obstacles to the enjoyment of the right to freedom of religion or belief and presenting recommendations on ways to overcome those obstacles, she said. Country visits had been extremely useful to those efforts and, since her last report, she had visited Angola, Israel, India, Turkmenistan, and the Palestinian Occupied Territories. Examining incidents and Governmental actions that were incompatible with the provisions of the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief and recommending remedial measures was the third main focus of her work. Communications sent to Governments had been a “precious tool” in that work and, since the establishment of her mandate, more than 1,130 allegation letters and urgent appeals had been sent to a total of 130 States. In her work, she said she had always prioritized her fourth main area of work, which was the application of a gender perspective through the identification of gender-specific abuses in the reporting process, including in information collection and in recommendations.
She then highlighted some key issues raised in her report, in particular citizenship issues and religious discrimination in administrative procedures. Most States did not openly discriminate on the basis of religion in citizenship applications or other procedures, but there were numerous examples where State practice or domestic legislation was inconsistent with human rights standards. Compulsory mentioning of selected religions on official identity cards or passports also carried a serious risk of abuse. While States were entitled to determine the criteria for according citizenship or in its other administrative processes, it could not do so in a discriminatory manner or in a manner that would restrict one’s freedom to manifest a religion or belief. Even if the State had a legitimate interest in limiting some manifestations of religion or belief, any limitation must be based on the grounds of public safety, order, health, morals or the fundamental rights and freedoms of others and must respond to a pressing public or social need.
2008 marked the sixtieth anniversary of the Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide, she said. In the current, fast-changing world, in which the universality of human rights was being challenged, efforts to raise awareness of the Declaration and human rights was more vital than ever. The provisions of the Universal Declaration remained of utmost relevance today and article 18 of the Declaration, on freedom of thought, conscience and religion had guided the work of her mandate since its inception and continued to offer a sound framework for dialogue with States. Freedom of religion or belief was a complex and sensitive fundamental right, which was not devoid of controversy. While the General Assembly had consistently adopted resolutions by consensus that explicitly referred to the “right to change one’s religion or belief”, there were some delegations on the Human Rights Council that seemed to challenge that very right. It was, thus, more necessary than ever to reaffirm the relevance of the Universal Declaration, which proclaimed that the freedom of thought, conscience and religion included freedom to change one’s religion or belief.
In closing, she drew attention to the start of the Universal Periodic Review mechanism, calling it a “valuable tool” to follow up on Special Procedures’ communications and she pledged to reinforce her own follow-up procedures by sending follow-up letters after country visits, in order to receive updated information on the implementation of her recommendations.
Questions and Answers
All speakers welcomed the Special Rapporteur and thanked her for her report.
The representative of France, speaking on behalf of the European Union, addressed the issue of nationality in the context of discrimination on the basis of religion in administrative procedures. She asked the Special Rapporteur for her opinion on ways in which Governments might strike a balance between ensuring the legitimacy and “proportionality” of measures taken to protect matters sensitive to the State, with the need to uphold freedom of religion and the right to privacy in terms of worship.
The United States representative recalled that the Universal Declaration, in article 18, promoted the right to change one’s faith without fear of reprisal. His Government was concerned by the practices of the Democratic Republic of Korea, Iran and Eritrea that sought to restrict religious freedom. Had the Rapporteur approached any Government regarding her recommendations on ending such restrictions? He was also interested to know about outstanding country visits, and was interested to hear her opinion on what qualities characterized “good cooperation” on the part of States.
The representative of Greece asked whether the Special Rapporteur had noticed any instances of genocide, or forms of genocide, being committed in any of the countries she had visited. Similarly, the representative of Indonesia asked about her visit to the Occupied Palestinian Territories and Israel, whether she envisaged a way to cultivate a culture of peace at the grass-roots level, among people of different religious beliefs, that was supportive of the peace process. He also commented that any limitations on freedom of religion by States should be a product of a democratic, inclusive process and asked for her view on that.
The representative of Libya asked for her observations regarding the freedom of belief in granting citizenship. If a certain individual wished to apply but constituted a danger to the country due to their religion, did the State not have a right not to grant citizenship to that person? He also asked the Rapporteur to explain what was meant by gender-based discrimination based on religion or belief, since religious edicts tended to apply to both sexes.
Responding, Ms. JAHANGIR said that, in order for States to be able to balance freedom of religion with the Rule of State, they needed mechanisms that were capable of ensuring that balance, namely independent judicial forums or other bodies capable of taking an unbiased view of issues. In addition, they must refer to certain guidelines in international jurisprudence: was the interference protecting a legitimate interest, and had that right been put at risk? Had they acted appropriately? Had they taken the least restrictive and most proportionate measures possible? Did those measures promote tolerance? Did the outcome avoid stigmatization of any particular religion or community? She recalled that the 1984 Syracusa Principles on limitation and derogation provisions in the International Covenant on Civil and Political Rights, put together by international organizations, including an international commission of jurists, had argued that it should be possible to challenge and obtain remedy against abusive limitations. She herself had always highlighted the importance of an independent ombudsperson in that context.
On whether she had conducted follow-up visits, she said he had not conducted any yet, pointing to “certain limitations” in terms of manpower. But there were several countries on her list still to visit, and it was hoped that requests for visits would be met positively. Good cooperation on the part of states meant that the Government gave access to the departments, materials and places she wished to see; provided space for private meetings without surveillance or threats to the people who had talked to her; and that the Government participated in an exchange with her, since it would help build a sense of understanding between them.
On genocide, she had seen no signs. She did say, however, that it would be wise for Governments to move towards prevention at the first sign of trouble. Religious polarization tended to lead to a rigid regime being imposed on communities by non-state actors, making it harder and harder for Governments to intervene. While Governments, too, could be guilty of discrimination, she did not see signs of quasi-genocide by Governments, as such. But, she did acknowledge that some Governments kept certain communities under perpetual threat and persecution, which tended to destroy religious minorities, individually and collectively.
She said she saw a link between freedom of religion and democracy. But, the situation was complex. In some countries, where freedom of religion was generally respected and where democracy was generally upheld, it was still possible to have a degree of polarization among the population that leads to violence. In other countries with mature democracies, it was still possible to see the exclusion of religious minorities, although the discrimination was subtle. Such minorities tended to remain at the lower end of the socio-economic strata.
On Israel and the Occupied Palestinian Territories, she admitted having had no breakthrough in that situation, but said that various confidence-building measures, which might not bring peace, at least kept polarization down. Such initiatives must be encouraged.
On the issue of citizenship and security, she begged to differ with the representative of Libya. She said that to assume that everyone of the same religion was a militant amounted to discrimination and stigmatization of a particular religion. Other special procedures had also made the same point, calling it a form of collective punishment and a violation of human rights.
As for gender based discrimination, she said if a woman was asked to accept certain injustices because of her sex -- religious norms that were not expected of a man -- that also amounted to discrimination. A report by her predecessor on the question of women’s rights and freedom of religion contained more examples in that regard.
In a second round of questions, the representative from the Observer Mission of Palestine asked how the international community should address the violations committed against Palestinians by Israeli occupying forces, as highlighted in the report of the Special Rapporteur, and similar violations by illegal Israeli settlers, which had not been addressed in the report.
The representative of Canada asked whether the Special Rapporteur had observed any positive trends on the issues laid out in her report, such as the implementation of relevant legislative reforms, and whether there were outstanding requests for country visits that had not yet received a response.
The representative of Israel asked how the Special Rapporteur might encourage more invitations and country visits to countries in the Middle East.
Denmark’s delegate asked whether the Special Rapporteur had other examples on how to better protect the rights of religious minorities through the inclusion of those groups in various political processes and whether she had other concrete proposals on intensifying and improving cooperation with countries, other than the follow-up procedure on country visits she had mentioned in her report.
The representative of the Netherlands asked about the link between freedom of expression and freedom of religion and whether one could potentially limit the other.
The representative of Lebanon asked whether certain acts of the Israeli occupying forces in the Occupied Territories, such as the establishment of checkpoints and barriers preventing movement, could be considered as a violation of the freedom of religion, as those checkpoints could prevent Muslims and Christians from worshipping in particular areas.
Iran’s delegate asked about the effects of certain acts or policies of the United States -- particularly those that had led to wars -- and how those policies had affected the global situation regarding freedom of religion. He added that the situation in the Palestinian Occupied Territories was a cultural genocide and should be considered in that context.
Ms. JAHANGIR, replying briefly due to time constraints, said that her report on questions relating to Israel and its acts in the Occupied Territories had been written and would be presented to the Council in March. She added that her report would also address allegations of acts committed by Israeli settlers.
In response to the question by the representative of Canada, she said there were a few examples of legislative reforms that had been implemented. She also said, in response to the question by Denmark, that there had been examples of countries giving seats to religious minorities in their national assemblies and stressed that the objective was inclusion in already existing processes and not assimilation into the wider body.
On questions relating to country visits, she said that she would like to visit all the countries that she had listed, particularly those in the Middle East, since that region was currently a gap in her mandate.
Turning to the question from the delegate from the Netherlands, she said that neither freedom of expression nor freedom of religion could be sacrificed for the sake of the other, adding that the threshold for tolerance of freedom of expression needed to be raised.
Briefly, in response to the question by the representative of Lebanon, she said that checkpoints had indeed been devastating and there had been violations of the freedom of religion or belief.
Statement by the Special Rapporteur on the promotion and protection of human rights while countering terrorism
MARTIN SCHEININ, Special Rapporteur, recalled that General Assembly resolution 62/272, adopted after the review of the global counter-terrorism strategy, contained a new formulation concerning the duty of all States to comply with international law, including human rights law, when combating terrorism. The same clause addressed action by the United Nations, as well, recognizing that international cooperation to counter terrorism must fully comply with international law, including human rights law, refugee law and international humanitarian law. The Counter-Terrorism Task Force existed to demonstrate, through the development of certain tools, how Member States could fight terrorism in full compliance with human rights.
He talked of his visit to Guantanamo Bay, expressing regret that the United States had not allowed him to visit persons without monitoring. That visit had confirmed certain misgivings concerning the operation of the Military Commission, and he said he found it highly unlikely that the United States Government would be able to provide a trial that met international legal standards. The United States Supreme Court itself had confirmed that the Military Commissions Act was unconstitutional for its denial of habeas corpus to detainees.
He had also visited Spain to interview terrorist suspects, and regretted that the mission report was not yet in the public domain, for reasons beyond his control. In general, he had commended Spain for its positive role in promoting a human rights approach in responding to terrorism, but the continued use of incommunicado detention for terrorism suspects was worrying.
A number of requests for country visits remained pending, including those to Algeria, Egypt, Malaysia, Pakistan and Philippines. A visit to Tunisia would hopefully be conducted soon.
Regarding challenges to the right to a fair trial in the fight against terrorism, he had identified nine areas of best practice: secure access to courts for persons subjected to counter-terrorism measures; impartiality of courts; retaining the public nature of trials; securing respect for the prohibition of torture; applying the principle of “normalcy” and relying as far as possible on ordinary courts; disclose all evidence; secure the right to effective representation; apply criminal law standards, or a hybrid of standards of proof if severe sanctions were attached to other than criminal procedures; and in countries that had not yet abolished capital punishment especially, apply the most rigorous standards of fair trial.
Regarding the listing of terrorist suspects by the Security Council, he stressed the importance of informing such persons of the measures about to be taken against him or her. That position seemed to be gaining more and more support, which would affect the hundreds of individuals or entities that had had their assets frozen and other fundamental rights restricted. The European Court of Justice, for instance, had granted a mercy period of three months in the case of Kadi and Al Barakaat, during which the European Union Council had had to remedy shortcomings in the listing mechanism or face its regulations becoming null and void. Further, a recent Security Council resolution had set a two-year time line for a review of all entries on the consolidated list, though it was insufficient for meeting the demanding standards spelled out by the European Court in Kadi and Al Barakaat.
He suggested some ways for addressing those challenges, namely providing sufficient information on the grounds for listing individuals, so that those persons were able to contest the listing; passing the ball to national authorities for implementing sanctions imposed by the Security Council, though that was the least preferred option; and introducing a mechanism of independent review at the United Nations level. The establishment of a quasi-judicial review body composed of security classified experts serving in their independent capacity would be likely to be recognized by national courts, the European Union court and regional human rights courts as sufficiently analogous to the protection of due process, so that courts would exercise deference in respect of the outcome. The United Nations would still provide information collection, expertise and assistance for the listing by national authorities.
Questions and Answers
The representative of France, noting the recommendations made in Mr. Scheinin’s report, asked what he would recommend in order to best ensure the right to a fair trial for those suspected of committing terrorist acts and what preconditions were necessary to ensure that special and military tribunals would show full respect for human rights.
The representative of Switzerland shared the Special Rapporteur’s concern over the listing and de-listing of terrorist groups and asked what the Special Rapporteur’s approach would be in a situation in which a national jurisdictional body’s listing of terrorist groups differed from the listing of an international body, such as the 1267 Committee, and how that might affect possible sanctions.
Also on the issue of listing and de-listing, the representative of Gambia asked whether the Special Rapporteur could elaborate on the attention that the General Assembly should give to the issue.
The representative of the United States said that there were some statements contained in the report of the Special Rapporteur that his delegation did not agree with, specifically in terms of how international humanitarian law, international human rights law and other international laws related to counter-terrorism activities and the situation of military commissions. His Government had carefully crafted legislation for the conduct of military commissions and that legislation offered detainees support and protection for their human rights. He expressed his delegation’s hope that the differing opinions on legal regimes in those situations would be taken into account in future reports.
Denmark’s delegate asked whether the Special Rapporteur had any specific proposals to intensify his country visits and communications and asked whether, other than Tunisia, he had plans to visit any other countries.
The representative of Spain said his country would appreciate entering into a dialogue with the Special Rapporteur regarding his country visit, after the submission of his report on the visit, which had been delayed.
The delegate from Cuba said his delegation shared the concerns of the Special Rapporteur over violations of human rights and military commissions. He asked the Special Rapporteur to elaborate on the specific challenges facing judges of those commissions when judging military trials, specifically in relation to the situation in Guantanamo.
On counter-terrorism sanctions, the representatives of Mexico and Liechtenstein both spoke. The representative of Liechtenstein asked whether there should be a difference in the need for due process guarantees for counter-terrorism sanctions, relative to sanctions against a particular country’s political elite. He asked whether the standards had to be higher for counter-terrorism sanctions, since those sanctions would affect a much wider group. The representative of Mexico added to those comments, asking how it might be possible to protect and improve the situation of human rights when actions were taken in the fight against terrorism.
The representative of Turkey asked how situations in which differences of opinion arose between regional and United Nations mechanisms could be avoided, specifically in regards to differences between mechanisms in his own region that had been addressed after the Special Rapporteur’s country visit.
The representative of Algeria wanted to clarify her Government’s position regarding requests for country visits by various mandate holders. It had granted most of those requests and any that were pending would be addressed in due course.
Responding, Mr. SCHEININ said the right to a fair trial remained one of the most “burning questions” on his plate, not least because the denial of a fair trial would provide more motivation for people to turn to terrorism, because that denial contributed to feelings of alienation.
Addressing the terrorist listing procedure at the United Nations level, he agreed that there was not much leeway at the national level in terms of its implementation, since countries faced the threat of sanctions if they did not comply. However, it was possible that if a country objected to a United Nations ruling, it might lead to a reconsideration of the case at hand. For that reason, the principle of national judicial review remained important, and would remain important until the United Nations introduced provisions for due process protection within its listing procedure. To be sure, the General Assembly had no authority to task the Council with actions, but it could freely comment on what Members States should and should not do. One opportunity for the Assembly to address the issue was through the resolution relating to the protection of human rights while countering terrorism.
Addressing the question by the United States delegate on doctrinary differences between countries on where international law intersected with the fight against terror, he acknowledged that to be the case. There were even differences among jurists. In his own mission reports, he was careful to include a section explaining the view of the Government in question. Nevertheless, the right to fair trial -- which was the main point of section of the report referred to by the representative of the United States -- was still applicable, because that notion was a part of customary international law, the terrorism Convention and international humanitarian law. Even if there were valid situations where States might depart from legal standards, the question of fair trial remained an issue that must be addressed. Human rights law was found to be more specific in some cases than the Geneva Convention, which was why human rights law was often times taken as the defining document.
He said his mandate was too new to have accumulated a list of country visit requests. Also, his mandate covered a difficult and sensitive issue, where national security posed additional difficulties for countries. He often turned to the Counter Terrorism Committee and its Executive Directorate to facilitate requests for visits. He expressed an interest in providing services to countries should they need it –- for instance, in drafting of counter-terrorism legislation.
In answer to Spain, he again expressed regret that the mission report to that country, which was finalized in July, had not yet been made public.
Regarding his mission to Guantanamo Bay, he once more noted the two biggest problems: that jurisdiction was defined through the notion of there being “unlawful alien enemy combatants”; and that the crimes dealt with by the Military Commission were not identical to the traditional list of war crimes. Other serious issues related to the use of coerced evidence or hearsay, or where physical evidence was presented, but had not been in continuous possession of the Court. In addition, it was difficult to conduct fair trials in Guantanamo Bay, not least because it was difficult to get there. It would be difficult to call witnesses to the base for purposes of testifying. He was accompanied from place to place by a security detail, including in the courtroom, which posed additional difficulties.
On sanctions against terrorists on United Nations lists, he said if improvements to the United Nations sanction regime were to be made, for example by introducing an independent review body attached to the Security Council, then the question became one of whether that new review process amounted to the same level of due process protection provided by national courts, so that national courts did not feel they needed to step in. If cases were contested in national courts, then a positive outcome would amount to a de-listing through a judicial refusal to implement the sanctions. To be sure, the process of terrorist listing and de-listing was subject to a different procedure than that applied towards countries and leaders of countries. As such, modifications in the instance of terrorist de-listing need not amount to a change in the other procedures.
On the outcome of his mission to Turkey in 2006 and the outcome of his study of the compensation commissions, he said it was not a different position from that taken by the European Union court of human rights, which ruled that domestic remedies must first be exhausted before turning to the Commission for redress.
Statement by the Independent Expert on the question of human rights and extreme poverty
MAGDALENA SEPULVEDA CARMONA, Independent Expert on the question of human rights and extreme poverty, said that the link between extreme poverty and human rights had been recognized in numerous human rights treaties and resolutions adopted by United Nations bodies. Her report on the question sketched out a conceptual framework on which her work would be based. One of the central areas of her work would address the consequences of discrimination and social exclusion on people living in extreme poverty. Often, people living in poverty tended to be victims of discrimination because of race, gender, ethnicity or other reasons. It could become a vicious cycle where patterns of discrimination kept people in poverty and led to further acts of discrimination. As such, equality and the elimination of discrimination were essential elements in the fight against poverty.
The consequences of extreme poverty on vulnerable groups would also be central to her work, she said, since those groups suffered disproportionately from the impacts of extreme poverty. There must be a concerted effort to promote the full participation of those groups in poverty reduction strategies and in the drafting, design and monitoring of public policies on the issue. They should be considered “essential allies” in the search for effective poverty reduction policies and, as such, she would work to promote dialogue between all groups, including those living in extreme poverty, Governments, non-governmental organizations and civil society.
Many States had already exerted great efforts to overcome poverty by designing and implementing innovative public policies based on strong South-South cooperation, she said. In support of those efforts she said she would, as she began her mandate, focus on cash transfer programmes that hinged on the direct delivery of additional income to households living in poverty, to help them increase their real income in the short-term and to prevent the spread of poverty over the long-term. She would seek to identify best practices and make recommendations on those programmes from a human rights perspective. She added that data collection was key to her work and she invited Member States to fill out questionnaires on the subject that had been distributed.
She welcomed the invitations by the Governments of Brazil and Colombia to conduct country visits and invited other States to extend similar invitations. Assistance and cooperation at the international level was crucial to all efforts towards poverty eradication. To that end, she would continue to examine and study best practices for cooperation and to underscore the political and legal commitments taken on by States. The latter was especially important at the current time, when needs were on the rise; the international system should strive to keep pace with rising needs. The elimination of extreme poverty was not a matter of charity, but rather “an important and pressing human rights matter”, she said. States had legal obligations to those living in extreme poverty and poverty reduction initiatives should respect the principles of equality, non-discrimination, participation, transparency and accountability.
Though the elimination of extreme poverty had always been central to the work of the United Nations, one out of every five people in the world still lived in extreme poverty. Those numbers would only increase, since they did not take into account the current food crisis and the millions more that would be pushed into poverty. “Now, more than ever, we must be clear that the fight against poverty is not a luxury that we can abandon in times of hardship,” she said. The international community must strengthen mechanisms to respond to the food crisis and to eradicate extreme poverty worldwide. There was no time to lose, since the difference between a day with food and a day without could be the difference between life and death. She, thus, called on all Member States to seek out and support new forms and ideas to fight poverty, while bearing in mind human rights obligations and placing the poorest of the poor at the centre of the debate.
Questions and Answers
The representative of France, speaking on behalf of the European Union, asked how the poorest people could participate in world processes in a more useful way, while the representative of Chile asked what guidance she would provide regarding effective gender-focused financing.
Indonesia’s representative remarked that extreme poverty constituted a pressing human rights issue, and was not a question of charity. While states were obliged to promote quality of life, the international community was similarly obliged to create an enabling environment for poverty eradication, especially in light of the multiple crises facing the world. He asked for an Independent Expert’s views on that issue. He said the notion of empowerment should be incorporated into poverty eradication processes, as Indonesia had done.
The representative of Pakistan took the liberty to direct a question to the Special Rapporteur on terrorism, saying, as part of the measures to address the “trust deficit” between States and organizations, the question of a country visit to Pakistan should have been raised bilaterally, rather than publicly.
The representative of Switzerland asked the Independent Expert to describe the link between her work and that of the Commission on the empowerment of the poor, and whether that commission’s last report would be included in her analyses, particularly in her next report on access to justice.
The representative of Brazil did not ask a question but merely informed the Independent Expert that Brazil had a programme called “Hunger Zero”, which helped reduce poverty levels in the country in recent years, demonstrating that the fight against poverty could indeed be won.
The representative of Guatemala asked why indigenous peoples were not mentioned more in the report of the Independent Export, in light of the fact that that community were 350 million strong, amounting to 5 per cent of the global population and 15 per cent of the most poor and disenfranchised.
The representative of Venezuela asked how the Independent Expert sought to harmonize her vision in the area of extreme poverty with international legal and human rights instruments. The representative of Cameroon asked to hear more about the Expert’s major priorities in the second United Nations decade on the elimination of poverty, particularly in terms of State responsibility to coordinate action in that area. Also, if the Expert was forced to choose between relieving extreme poverty and upholding human rights (in the case where relieving poverty would be in breach of human rights), what would she do?
The representative of Peru asked the Expert to elaborate on her earlier comment regarding poverty as both a cause and consequence to human rights not being fully enjoyed. Also, what measures would she take to help States mitigate the effects of the food crisis on the poorest people?
In response to the question posed by the representative of France, Ms. SEPULVEDA said that participation was, indeed, a crucial element in the fight against poverty. However, participation did not necessarily mean that people living in poverty needed to take part in all technical deliberations on poverty reduction strategies, but rather that they should be included, at the very minimum, in deliberations on the setting of benchmarks and the evaluation of strategies. States must create enabling environments for participation and ensure that when options were discussed, those options would be made available to all concerned, including the poor. In that regard, it was important to stress that people living in poverty had essential knowledge of the obstacles they faced and understood the best ways to overcome those challenges.
In response to Chile’s question on gender-focused financing, she said that she would be looking at that issue in-depth over the next three months, in particular in regards to cash-transfer programmes. Programmes such as those which had shown success should be implemented from a human rights focus, as “value-added”. A gender focus in all poverty reduction efforts was essential, since women were disproportionably represented in poverty statistics and they often had scant access to property and employment opportunities, and earned less than their male counterparts.
On the need to create an enabling environment for poverty eradication, as described by the delegate from Indonesia, she said that access to aid, debt relief, affordable capital flows and a stable global economy were all factors that contributed to States’ ability to formulate and implement poverty reduction strategies. States entering into international policy-making processes must take into account their human rights obligations and should ensure a coherent and consistent application of those obligations across the board. Policy-making should be fair, equitable, transparent, and sensitive to the needs of developing countries. The volume, distribution and quality of aid should all be increased and, at the least, commitments of official development assistance should be met.
She thanked the representative of Switzerland for her comments and explained that the latest report on the legal empowerment of the poor was issued after the publication of her report, now before the Committee. That said, she was aware of the seriousness of issues of access to justice and had reserved those for inclusion, possibly, in future thematic reports. She also thanked the representative of Brazil for sharing information on his Government’s national initiatives, which were excellent examples of South-South cooperation.
In response to the representative of Guatemala’s question on the lack of information on indigenous issues in her report, she reminded the delegate that her mandate guided her work and, in this instance, her mandate was to pay particular attention to the situation of women and children, as well as other vulnerable groups. As such, the issues of women and children were often more heavily weighted in her reports, despite the fact that issues relating to indigenous groups and human rights and extreme poverty were equally as crucial.
She welcomed the comments made by Venezuela’s delegate and said she would continue to assess the “empiric link” between extreme poverty and the enjoyment of human rights. In response to the representative of Cameroon, she said she saw herself as the bridge between Geneva and New York regarding efforts on the second United Nations decade on the elimination of poverty. She called a choice between relieving extreme poverty and upholding human rights a false dichotomy, as it was possible to do both simultaneously.
Elaborating on her earlier comment regarding poverty as both a cause and consequence of human rights not being fully enjoyed, as requested by the representative of Peru, she described how, in some countries, ethnic minorities had been denied their human rights through “structural” discrimination by Governments. That often resulted in them becoming increasingly poor and, once poor, they were subject to even greater discrimination and a further denial of their rights.
Mr. Scheinin then took the floor to respond briefly to the comment made by the representative of Pakistan over the public mention of a possible country visit. He said that, once the request for a country visit had been made public in one of his reports, he often mentioned those requests in his oral remarks. He stressed that he tried to treat all States equally regarding all aspects of his work, including the mention of country visits or country-specific examples included in his reports, adding that any reference to a country by name should not be seen as an assessment of that country’s human rights record.
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