Third Committee Approves Texts on Crime Congress, Cooperatives, Year of Family, Women’s Anti-Discrimination Convention, African Crime Institute, Ageing
Third Committee Approves Texts on Crime Congress, Cooperatives, Year of Family, Women’s Anti-Discrimination Convention, African Crime Institute, Ageing
|Department of Public Information • News and Media Division • New York|
Sixty-fourth General Assembly
24th & 25th Meetings (AM & PM)
Third Committee Approves Texts on Crime Congress, Cooperatives, Year of Family,
Women’s Anti-Discrimination Convention, African Crime Institute, Ageing
UN Experts Address: Independence of Judges; Transnational Corporations; Human
Rights in Democratic People’s Republic of Korea, Myanmar, Palestinian Territories
Continuing its wide-ranging discussion on the promotion and protection of human rights, the Third Committee (Social, Humanitarian and Cultural) approved six draft resolutions on a range of social-economic issues, including one that would have the General Assembly proclaim 2012 as the International Year of Cooperatives.
The Committee also heard reports on the situation of human rights in Myanmar, the Democratic People’s Republic of Korea, and the occupied Palestinian territories, and updates from the Secretary-General’s Special Representative on human rights and transnational corporations and the Special Rapporteur on the Independence of Judges and Lawyers.
By the terms of the first text approved, “cooperatives in social development”, the Year would be proclaimed in recognition of the major role cooperatives play in economic and social development. States would be urged to encourage the development of cooperatives, in view of their potential for advancing important social development goals ‑‑ poverty eradication, employment generation and enhancing social integration. The text would highlight the ability of cooperatives to contribute to poverty eradication by promoting the participation of women, youth, older people, people with disabilities and indigenous peoples in the economy and in society. The text would also have States help build the capacity of cooperatives to manage, audit and market themselves.
In another draft approved today, the Committee turned its attention to the equality of men and women in society, in a proposed text on the follow-up to the tenth anniversary of the International Year of the Family and beyond. Approved without a vote, it would have the Assembly urge States to create a conducive environment to support families, recognizing that the rights and freedoms of all family members were essential to society’s well-being. The text would have States recognize that both parents had common responsibilities for the upbringing and development of children, and have the Assembly consider preparations for the twentieth anniversary of the International Year of the Family, slated for 2014.
The theme of inclusivity was seen in a text on the follow-up to the Second World Assembly on Ageing, which would call on States to develop their national capacity to enforce the rights of older persons. Approved without a vote, the text would call on States to consider how best to improve international standards pertaining to older persons, better enabling them to address their lack of access to proper food, shelter, health care and medicines.
The Committee also approved, without a vote, a draft on the Convention on the Elimination of All Forms of Discrimination against Women, which would have the Assembly urge States parties to the Convention to comply fully with their obligations. That would mean taking heed of observations made by the treaty body tasked with overseeing its implementation -- the Committee on the Elimination of Discrimination against Women. A preambular paragraph in the text pointed especially to the Committee’s general recommendation No. 26, on women migrant workers.
Two other drafts approved today included a text on preparations for the Twelfth United Nations Congress on Crime Prevention and Criminal Justice, which is scheduled to take place in Salvador, Brazil, from 12 to 19 April 2010, under the theme, “Comprehensive strategies for global challenges: crime prevention and criminal justice systems and their development in a changing world”. A draft on the United Nations African Institute for the Prevention of Crime and the Treatment of Offenders, another text adopted without a vote, would request the Secretary-General to encourage that all necessary financial and technical support be given to the Institute to enable it to fulfil its mandate.
Before taking action on those drafts, the Committee heard reports on the human rights situations in Myanmar, the Democratic People’s Republic of Korea and the occupied Palestinian territories, hearing first from Tomás Ojea Quintana, Special Rapporteur on the situation of human rights in Myanmar, who described the situation as “alarming”. Citing a pattern of widespread and systematic violations, he said ‑‑ among other things -- that the issue of impunity was evidence that the judiciary was not independent. He urged the Government to request technical assistance for reforming the judiciary, saying its seven-step road map to democracy would be incomplete without the judiciary’s independence.
Vitit Muntarbhorn, Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea, said the situation in the country remained “dismal and abysmal”, due to the repressive nature of the power base. The State practiced extensive surveillance over people, and the “fear factor” was most evident when a person did not share the ideology of the elite. Peoples’ suffering had been aggravated by the negative role of authorities, where economic initiatives, notably on the part of women, were severely curtailed in 2007 and 2008, when authorities prohibited women under 40 years-old from trading. At the end of 2008, authorities planned to close general markets, with a ban on rice sales, and now were compelling people to obtain grain directly from State-run stores. The country’s biggest wholesale market was ordered closed, as part of a campaign to close markets. Small-lot farming would be prohibited in 2009.
Richard Falk, Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, discussed negative and positive developments in the territory. Among the negatives, he listed Israel’s unwillingness to endorse the international consensus on a sovereign Palestinian State, which would comprise the West Bank, Gaza, and East Jerusalem as its capital. On the Palestinian side, he talked of the need to achieve unified representation as precondition for meaningful peace negotiations. Those were joined by positive developments, however, such as sentiments expressed by the United States President on 4 June 2009 regarding the “intolerable” situation for the Palestinian people. They were similarly reiterated in the Security Council on 11 May 2009 and the Quartet on 26 June 2009, and its resolution 1860 (2009), in which it had called for urgent efforts to achieve peace based on the vision of two democratic States with secure, recognized borders.
During the question time, the representative of Myanmar countered the Special Rapporteur’s comments regarding the impartiality of the judiciary, explaining that the principle of independencewould be included in a law soon to be promulgated, which was mentioned in section 96 of the Myanmar Constitution. A Chief Justice of the Supreme Court was to be appointed soon, and the President would make recommendations to the national assembly. Appointments could only be made with the national assembly’s approval.
The representative of the Democratic People’s Republic of Korea responded to the Special Rapporteur’s report by reminding the Committee that his Government had never recognized the resolution that gave the Special Rapporteur his mandate, believing it was “politically devised” and that the Rapporteur’s report was “totally useless”. The Government had had regular contacts and exchanges of views with European Union ambassadors, but those exchanges had been stopped following the presentation of that resolution by a group of Western countries. His Government would continue to participate in the United Nations human rights bodies ‑‑ such as the Committee on the Rights of the Child ‑‑ that treated countries on an equal basis with others, and would reject attempts by nations to single out the Democratic People’s Republic of Korea.
Also delivering presentations today were John Ruggie, Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, and Gabriela Carina Knaul De Albuquerque E Silva, Special Rapporteur on the Independence of Judges and Lawyers.
The Committee will meet again tomorrow, Friday, 23 October, to hear presentations by the Special Rapporteurs on freedom of religion or belief and on adequate housing as a component of the right to an adequate standard of living. It was also expected to hear from an Independent Expert on the question of human rights and extreme poverty.
The Third Committee (Social, Humanitarian and Cultural) met today to continue its consideration of the promotion and protection of human rights, focusing on human-rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, as well as human rights situations and reports of special rapporteurs and representatives.
It was also expected to take action on several resolutions related to the International Year of the Family, cooperatives, ageing, women, crime prevention and criminal justice and the United Nations African Institute for the Prevention of Crime and the Treatment of Offenders (documents A/C.3/64/L.7, L.10, L.6, L.17, L.13 and L.14).
As the Committee met, it had before it the report of the Special Rapporteur on the situation of human rights in Myanmar, transmitted through the United Nations Secretary-General (document A/64/318), which discusses the trial of Daw Aung San Suu Kyi, noting that the additional 18-month house arrest bars her from actively participating in the 2010 elections. The Special Rapporteur considers the continuation of her house arrest a blow to the Government’s seven‑step road map to democracy.
While the Special Rapporteur announced in his reports to the Human Rights Council and to the General Assembly that his primary task was to cooperate with the Government in the realization of the human rights of the people of Myanmar, he also stated that, if after some time, there was no sign of any result in the horizon, he might consider changing strategy. In that respect, he has recommended four core human-rights elements to be completed before the elections in 2010: a review of national legislation in accordance with the new Constitution and international obligations; the progressive release of prisoners of conscience; the reform of the armed forces to ensure respect for international human rights and humanitarian law, including training; and the establishment of an independent and impartial judiciary.
The Special Rapporteur recommends a repeal of discriminatory legislation in Northern Rakhine State, where a large part of the Muslim community has been deprived of citizenship, movement and other fundamental rights for many years. In areas affected by internal conflict, particularly in Kayin State, he reiterates that direct attacks against civilians not participating in the hostilities is prohibited. He recommends that the Government refrain from the use of forced labour of civilians (portering), particularly in Kayin State. In this regard, the Special Rapporteur recommends that the Government engage with the International Labour Organization (ILO) to ensure compliance of prison-labour policy concerning forced or compulsory labour.
Also, the Special Rapporteur stresses the lack of independence and impartiality of the judiciary in Myanmar. The judiciary has delivered hundreds of harsh sentences against prisoners of conscience, applying laws that might be contradictory to human-rights standards. He recommends that the Government seek international technical assistance with a view to establishing an independent and impartial judiciary that is consistent with international standards and principles. In this respect, the Chief Justice accepted the recommendation to engage with the Special Rapporteur on the independence of judges and lawyers, a decision that has to be pursued.
Since Myanmar is party only to the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women, the Special Rapporteur strongly recommends that it accede to the other core international human-rights instruments.
The United Nations Secretary-General’s report on the situation of human rights in the Democratic People’s Republic of Korea (document A/64/319) says that country’s Government has not recognized the resolutions adopted by the Human Rights Council and the General Assembly on the situation of human rights in that country. It continues not to accept technical assistance from the Office of the United Nations High Commissioner for Human Rights (OHCHR) and has not granted access to the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea, appointed by the Human Rights Council. This situation has not allowed the United Nations Secretary-General to obtain the information necessary to report in full to the General Assembly regarding the subject in question.
However, the report says, the United Nations High Commissioner for Human Rights, in a letter dated 12 May, invited United Nations principals to submit what information they had. The High Commissioner subsequently received relevant information from the following United Nations entities: the United Nations country team in the Democratic People’s Republic of Korea; the Food and Agriculture Organization (FAO); the World Food Programme (WFP); the United Nations Children’s Fund (UNICEF); the United Nations Population Fund (UNFPA); and the Office of the United Nations High Commissioner for Refugees. According to those reports, malnutrition is high. Low agricultural output is mainly caused by a long-term decline in soil fertility and is threatened by a fertilizer shortage. Although the Government has historically provided fertilizer to farmers in exchange for a quota of the harvest, it is increasingly unable to make such provision, because of its underlying economic problems.
The UNFPA continues to strengthen its monitoring activities in the country, in accordance with the principle of “no access, no assistance”, the report continues. For the reproductive health programme, over 230 villages were visited by UNFPA in 2008, where through which it started to provide oxytocin to deal with post-partum haemorrhage, which is the most prominent cause of maternal mortality. For its part, the Office of the United Nations High Commissioner for Refugees observes that the flow of nationals leaving the country to seek protection, assistance and resettlement elsewhere has decreased slightly. Nevertheless, violation of the fundamental principle of non-refoulement by countries of transit is cause for concern. So are reports of severe punishment in cases of forced return to the Democratic People’s Republic of Korea.
In addition, the report describes activities of the Working Group on Enforced or Involuntary Disappearances of the Human Rights Council regarding two newly-reported cases to the Government of Japan. These cases concern two Japanese nationals reportedly abducted in Japan by secret agents of the Democratic People’s Republic of Korea. The Working Group notes the positive steps taken by the two Governments, which reached an agreement during their working-level consultations in August 2008 to ensure that the Democratic People’s Republic of Korea conducts a comprehensive investigation of the unresolved cases of abduction. Meanwhile, a review of the Democratic People’s Republic of Korea under the universal periodic‑review mechanism of the Human Rights Council will take place at the sixth session of the universal periodic review, scheduled for December.
A report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967, transmitted through the United Nations Secretary-General (document A/64/328), devotes particular attention to the situation after the Israeli military’s “Operation Cast Lead”. The report cites from three studies that seem to confirm suspicions of war crimes associated with Cast Lead. One study was led by John Dugard, the former Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, as an undertaking of the Arab League. A second is a report by Amnesty International, and a third is a report by the International Committee of the Red Cross (ICRC). Those reports were bolstered by testimony from 30 Israeli Defense Forces soldiers who took part in the Operation, and received only perfunctory denials by the Government of Israel. In addition, the reports also reached a subsidiary conclusion that Hamas tactics, although on a far more restricted basis, also constituted violations of the laws of war.
The Special Rapporteur also discusses a major report conducted by the United Nations Board of Inquiry relating to damage done to United Nations facilities and personnel as a result of Operation Cast Lead. A series of conclusions relating to Israeli responsibility and obligations were revealed in the executive summary of the full report. By order of the United Nations Secretary-General, the full report has not been released, but its main conclusion is that Israel, without sufficient military justification and with deliberate intention, did serious harm to several United Nations facilities and caused major casualties on the part of those taking shelter in United Nations buildings and schools.
Citing the ICRC report, the Special Rapporteur says that six months after a ceasefire, restrictions on imports are making it impossible for Gazans to rebuild their lives. The Israeli blockade prevents reconstruction, keeps the vital water and sewage disposal system in unsafe condition, and extends the health crisis described in the prior report of the Special Rapporteur (document A/63/326). Israel takes the position that only humanitarian goods will be allowed to enter Gaza, and that is strictly interpreted to mean subsistence needs.
The prohibition placed upon exports also has led to the complete collapse of industrial and agricultural exports that had provided some material security for a significant part of the population, the report says. It would be inadequate to return to the status quo prior to Operation Cast Lead. Only a complete termination of the blockade, which would allow imports and exports at May 2007 levels, would be acceptable. A side-effect of the continuing blockade is to encourage Gazan reliance on tunnels into Egypt to obtain essential supplies, giving rise to black-market activities and to severe safety hazards. It has been reported that, in 2009 alone, 39 persons have died as a result of tunnel accidents, either from tunnel collapse or suffocation due to fuel leakages.
The report recalls that the Free Gaza Movement sought to send a ship, Spirit of Humanity, containing humanitarian supplies to Gaza as a symbolic expression by peace activists. The ship was stopped and boarded in international waters, which constitutes an unlawful operation. The passengers were arrested for various periods up to several days, including former American congresswoman and Green Party presidential candidate, Cynthia McKinney.
The report also discusses the issue of Israeli settlements. Recent discussions of a freeze on settlements have been made as political steps and not with reference to Palestinian rights under international humanitarian law. From a legal perspective, acknowledging the relevance of Palestinian rights under law means that any bilateral understandings between the United States and Israel, such as the Bush/Sharon exchange of official letters on 14 April 2004, assuring Israel that the large settlement blocs will be incorporated into the future borders of the Israeli State, are completely without legal value.
The report ends with recommendations that the General Assembly request an advisory opinion from the International Court of Justice on the obligations and duties of Member States to cooperate with the Organization and its representatives; that other countries should be encouraged to use national means, including their courts, to implementing international criminal law as pertains to the Occupied Palestinian Territory; that Israeli respect for international law and Palestinian rights should henceforth be an integral element in future peace negotiations; and that consideration should be given to imposing limits on the supply of arms to the parties to the Israel-Palestine conflict.
The report of the Special Representative of the United Nations Secretary‑General on the issue of human rights and transnational corporations and other business enterprises (document A/64/216) discusses efforts to bring into operation the policy framework for business and human rights, described as the “protect, respect and remedy” framework. It comprises three pillars: the State duty to protect against human-rights abuses by third parties, including business, through appropriate policies, regulation and adjudication; the corporate responsibility to respect human rights, which calls for the exercise of due diligence to avoid infringing on the rights of others; and greater access by victims to effectively remedy both inside and outside the judicial system. During the reporting period, he convened two regional consultations and met members of the Inter-American Commission on Human Rights. He spoke before the Permanent Forum on Indigenous Issues and various national institutions, such as the United Kingdom Parliament.
In a report of the Special Rapporteur on the independence of judges and lawyers, transmitted through the United Nations Secretary-General (document A/64/181), judges and lawyers are encouraged to establish independent and self-regulated associations to safeguard the legal profession’s integrity and independence. The Special Rapporteur raises concern over the fact that professional associations in many countries face the threat of closure by the authorities, which severely hampers their independence and could render them completely ineffective. The arbitrary withdrawal of lawyers’ licences or practicing certificates by the executive branch happens particularly often where lawyers take on politically-sensitive cases. In the view of the Special Rapporteur, no withdrawal of licences should take place without the prior consent of the relevant lawyers’ association, and any formal decision should be subject to judicial review
The report says that, in some States, there are restrictions in obtaining access to and extracting files of case materials during the investigative stage. Most restrictions occur in cases that the Government claims relate to State security. In recent years this has been particularly frequent in cases related to terrorism. The legal provisions on “State secret” and “terrorism” are very broad, and lacking a precise definition, leading to a discretionary power on the part of the judges or the investigating bodies in granting or refusing access to the relevant information. Treaty bodies have also expressed their concern that, in cases related to terrorism, lawyers are obliged to testify or face the risk of imprisonment, going against the principle of lawyer-client confidentiality.
Among his recommendations, the Special Rapporteur says that Member States should recognize that freedom of expression and association for lawyers are essential requirements for the proper and independent functioning of the legal profession and must be established and guaranteed by law and in practice. Lawyers’ voices have particularly important weight concerning matters related to the administration of justice. Member States should refrain from preventing lawyers from taking part in conferences, training sessions or similar events related to human rights and the legal system, conducted both within and outside the country; Member States should support such initiatives.
Statement by the Special Rapporteur on Myanmar
TOMAS OJEA QUINTANA, Special Rapporteur on the situation of human rights in Myanmar, said that at the threshold of 2010 -- the year in which national elections have been planned as the fifth step in Myanmar’s seven-step roadmap to democracy -- no electoral law had been made public and no official dates for the election had been announced. The national election was the momentum the Government of Myanmar needed to demonstrate to the international community its commitment to international human rights standards.
He stressed that national elections should be inclusive and, to that end, all prisoners of conscience should be released to be able to participate, either as candidates or voters. Elections should also be fair and transparent. Candidates should be given equal opportunity for campaigning without being subject to harassment and with full liberty to exercise the rights to freedom of speech, movement and association. Voters should be allowed to exercise their freedom of expression by making their choices independently, with no fear of intimidation or reprisal. The ballot counting should also be conducted in a transparent manner, with all political factions in the process.
He noted that, in every society in transition to democracy, national elections played an important role in determining whether the transitional process was credible and reflecting the peoples’ will. These societies often called on the international community to assist them in the election process. With that participation, there would be no room for post-election criticism by any national or international entity.
He launched the idea of duplicating the Tripartite partnership between the Government of Myanmar, the Association of South-East Asian Nations (ASEAN), and the United Nations, which was a success story in responding to humanitarian needs after Cyclone Nargis, to create a Myanmar election oversight mechanism, which would oversee the inclusive transparency and fairness during all phases of the election.
Referring to his report, he said the situation of human rights in Myanmar remained alarming. There was a pattern of widespread and systematic violations, which in many conflict areas resulted in serious abuses of civilians’ rights and integrity. The prevailing impunity allowed for the continuation of these violations. He urged the Government to take prompt measures to establish accountability and responsibility with regard to the widespread and systematic human rights abuses. Perpetrators at every grade and level should realize that they were responsible for their acts, and actions would be brought to justice. By combating impunity, the authorities would comply with international obligations, halt human rights violations and promote deterrence.
He stressed that the issue of impunity was evidence that the judiciary was not independent. Among other things, it was the consequence of a lack of knowledge by members of the judiciary that they should act in an independent manner. Myanmar should request technical assistance for reforming the judiciary. Indeed, the independence of the three State organs was a pillar of democracy and the seven-step roadmap would be incomplete without the judiciary’s independence. Moreover, the judiciary needed to interpret laws that defended citizens’ rights and were founded on just values and international human rights laws. A revision of national legislation to ensure compliance with international human rights law was the first stone in building a democratic society.
He recalled that he had recommended to the Government of Myanmar that it implement the four core human rights elements in domestic law to ensure compliance with international human rights standards, and in the provision of human rights in the new Constitution. But, he could not make a statement on the country’s human rights situation without mentioning that some 5 million people needed food aid. He had regularly received reports on dire economic and social conditions in Kayin, North Rakhine, Chin, North Shan and East Shan states. The acute need for food had become the root cause of the infringements of economic and social rights. Indeed, with more than three-quarters of a family’s income going for food, not enough money was left for health, housing and other basic needs. Children could not go to school, in many cases, because they were helping their families by earning what income they could. Starvation and poverty-related discrimination should not be allowed to continue. Together, a solution should be found.
He welcomed the release of 131 prisoners of conscience in September, but reiterated the lack of proportionality compared to the more than 2,000 such prisoners currently detained. The Government should refrain from detaining more people for political motives, and all prisoners of conscience should be released before the 2010 elections. Finally, he reiterated his decision to cooperate with the Government in improving human rights conditions in the country. In that spirit, he welcomed the Government’s decision to accept a third mission to the country by the end of November.
Myanmar’s representative said that, as the concerned country, he would focus on a few comments. The Myanmar authorities were agreeable to the Special Rapporteur’s proposed visit next month, which would be his third since his appointment in March 2008. The Government’s prompt response spoke volumes about its willingness to cooperate. Indeed, the report affirmed that he was committed to assisting Myanmar in the human rights situation. “This is positive”, he said, expressing hope of working together to achieve the stated goals.
Notwithstanding those points, he said the Special Rapporteur had deviated from the main course. Of the report’s 113 paragraphs, only a handful focused on cooperation. The Special Rapporteur noted that he had held fruitful discussions on the four core human rights elements, notably with Ministers for Foreign Affairs and for Labour. In addition to prison visits, he had been able to travel to the delta region that had been hit by cyclone Nargis, as well as another part of the country. That was a measure of the full cooperation that authorities had accorded to him.
The report was “less than objective” in many instances, he said. Anti-Government groups had been given a sympathetic ear and that was unfortunate. Such allegations should be taken with a “grain of salt”. Such comments should have been verified before inclusion in the report. While he appreciated that the Special Rapporteur had to engage with all parties, it was troubling that the report focused on specific groups.
Also, he was deeply disturbed that the Special Rapporteur had cast doubt on the judicial system and the elections to be held in 2010. On those elections, he said that systematic steps were being taken to hold them as scheduled. There should be no doubt that they would be free and fair. Electoral laws would be promulgated and election laws reformed. Myanmar’s focus was not on the narrow interests of individuals, but rather on larger national interests.
The Special Rapporteur had questioned the impartiality of the judiciary, he said. Yet, the basic principles of judicial procedure could be seen in a specific section of the judicial law. The constitution had a separate charter. The principle of independencewould be included in the law to be promulgated, which was mentioned in section 96 of the constitution.
Regarding the appointment of the Chief Justice of the Supreme Court, he said the President would be required to send his recommendations to the national assembly. Appointments could only be made with the national assembly’s approval. Moreover, the protection of human rights was made by writs, to be issued by the Supreme Court.
In closing, he said he had pointed out the report’s shortcomings. However, his aim was not to belittle the report, but merely to state that the pursuit of human rights could bear fruit only through cooperation and a balanced approach.
Sweden’s representative, speaking on behalf of the European Union, said a draft resolution would be again presented during the General Assembly focusing on the situation of human rights and next year’s election. It would urge progress in a number of areas. She noted there was little discernible progress in the four core human rights areas. How could the Government make progress in them ahead of the elections? What assistance and advice from the United Nations system could the Government draw on in this regard? How would the proposed mechanism of the Association of Southeast Asian Nations (ASEAN) contribute to the development of Myanmar? Could he elaborate on his proposal?
The representative of Switzerland asked the Government of Myanmar to show its will to cooperate and improve the human rights situation by following the Special Rapporteur’s recommendations. He recalled that freedom of expression was a basic right. Noting the recent release of prisoners, he called for more. He also called on the Government of Myanmar to guarantee an electoral campaign process and an election process in keeping with international standards. How could the Government be supported by the international community in this process?
Australia’s representative thanked the Special Rapporteur for his efforts and his report, which reminded the international community of the need to continue engaging with Myanmar. Australia agreed that the continued detention of Aung San Suu Kyi, as well as other prisoners, during the election process did not contribute to the election’s credibility. Australia, thus, supported the release of all political prisoners and shared the concerns on the impact of the ongoing conflict and the recruitment of child soldiers by various parties in the country. It was disappointing that the Special Rapporteur had not been able to visit since he proposed the four core human rights elements.
The representative of the Czech Republic appreciated the systematic manner in which the report addressed the situation in Myanmar. She asked if the Special Rapporteur could elaborate on how much time would be sufficient between the implementation of the basic necessary measures for the election -- including the electoral law and release of prisoners -- and the actual election. The Czech Republic was concerned that time was running out. The electoral process needed certain conditions to be met for it to aspire to the conditions of transparency. Were there any positive signs in this respect? Had any steps been taken on any of the four core human rights elements since his last visit?
The representative of the Maldives expressed firm support for the Secretary-General’s call for the unconditional release of Aung San Suu Kyi. He also supported the work of the Secretary-General’s Special Adviser. He further called on the Government of Myanmar to engage with the international community on broad social development. He also urged it to make the protection and promotion of core freedoms and liberties the core of its evolving political society.
The United Kingdom’s delegate thanked the Special Rapporteur and said her delegation remained very concerned about the human rights situation in Burma. The most prominent example of that was Aung San Suu Kyi, but the report also appropriately called on the Government to release other prisoners of conscience.
The representative of Myanmar took the floor on a point of order to express disappointment that the delegation of the United Kingdom continued to refer to his country in such a way.
The United Kingdom representative said that, without the necessary planning, the elections would lack credibility. She also noted the report’s description of the conditions facing detainees. Would the Special Rapporteur further elaborate on that situation? Could he give further details on the discrimination against the Muslim and Christian populations in several states? She stressed it was vital that Mr. Quintana visit the country by November this year.
The representative of Japan said he appreciated the active role of the Special Rapporteur in improving human rights in Myanmar. It was good to know that serious interactive discussions were being held. Japan welcomed the large number of prisoners that were released last month. On the other hand, he was deeply disappointed that Aung San Suu Kyi had been sentenced again to imprisonment in August, and he urged the release of all prisoners, including Aung San Suu Kyi, and that the Government take steps to promote the democratization process. In that context, Japan supported the four core human rights elements and continued to extend its full support to the Secretary-General’s good offices. There was little time before the 2010 elections, and Japan would work to ensure they were inclusive, fair and transparent. It would also continue to watch that the Government follow through on its pledge to conduct them in that manner.
He said Japan regretted that the Special Rapporteur had not been able to visit Myanmar since February, but welcomed Myanmar’s decision to accept a third visit. He asked what the Special Rapporteur’s highest priority would be on his next visit. Also, what roles did he expect Asian countries to play in helping to improve the human rights situation in Myanmar?
The United States representative thanked the Special Rapporteur for a detailed and informative report. Her Government had noted that he had last visited Burma in February, but had been unable to schedule a follow-up visit before the publication of his report.
The Chair interrupted to ask that the official name of the country under discussion be used.
Continuing, the delegate of the United States said the Special Rapporteur had said he would consider changing strategy if there were no signs of results. Given Aung San Suu Kyi’s position, had that point been reached? On the release of prisoners of conscience, she agreed that the release of political prisoners was essential for advancing the reconciliation process. The United States had long advocated their release without delay. Were there any signs that authorities in Burma were planning on releasing other prisoners?
The delegate of Myanmar, in a point of order, said the name “ Burma” had been foisted on the country by colonialists, and he therefore rejected it. He asked the Chair to insist that delegations abide by the ruling he had just made.
The Chair then again asked that delegation to use the official name of the country.
Continuing, the United States delegate said she was deeply troubled by the use of rape and sexual assault by the army, and she fully supported the call for those instances to be investigated. Were there any signs of that? Also, on the report’s mention of attacks against ethnic minorities, she thanked the Special Rapporteur for the assistance given to civilian victims of conflict. The gravity of the human rights situation demanded unwavering attention from the international community. The United States urged the Government to cooperate fully with the Special Rapporteur, notably to provide him the access he needed to carry out his mandate.
The delegate of Argentina thanked the Special Rapporteur for his report and cooperative approach to the four pillars of human rights. Her region was only too aware of the price to be paid for true democracy, when impunity prevailed. Argentina was encouraged that Myanmar would allow another visit, which she hoped would give rise to the release of political prisoners. She asked about the objectives of the Special Rapporteur’s next visit, and about how the global community could help improve the chances of success.
The delegate of Canada thanked the Special Rapporteur for his report and activities, saying that Canada was deeply concerned that the 2010 elections would not be free nor fair, but rather, they would legitimize the continuation of military rule. Laws pertaining to the elections had not been promulgated and the continued imprisonment of Aung San Suu Kyi, among other things, could jeopardize that process. Canada had called for the unconditional release of all political prisoners and, while some had been released, a disproportionately small number of those released were prisoners of conscience.
Canada was deeply disturbed at Myanmar’s refusal to allow the Secretary-General access to Aung San Suu Kyi, she continued. Did the Special Rapporteur see any positive steps taken to engage with the opposition party? What would he recommend as the next steps? Canada also had noted with concern the abuse of ethnic groups. Had the Special Rapporteur noticed an increase in human rights abuse, particularly in the use of child soldiers and child labour?
The representative of New Zealand, noting that the Special Rapporteur’s report referred to the report of the Committee on the Elimination of Discrimination against Women and called on the Government to take steps to ensure women’s participation in the election, wondered if the Special Rapporteur could make any observations on whether such mechanisms were being implemented. Could he make any other comments on the improvement in the situation of women’s human rights in Myanmar?
Responding, Mr. QUINTANA underscored the importance of a third visit to the country, which would allow him to have contact with the victims there and to establish a link and dialogue with different actors and groups both in and outside the Government. He stressed that he was completely independent during the writing of his report, as well as in his investigations.
On progress with respect to the four pillars of human rights, he said he had had full and interesting conversations with different actors in Myanmar, particularly regarding the ongoing revision of hundreds of its laws. During his discussion with the head of the Supreme Court, he was told that the Government would accept a mission by the Special Rapporteur on the independence of judges. But, when he requested that mission, it was rejected.
On freedom of expression, he noted the Government had issued an amnesty for a number of prisoners, but it did not extend to all. He stressed that all prisoners of conscience should be released before the election.
On another issue, he knew the Government aimed to have training courses to improve the knowledge of human rights and humanitarian law within the armed force. But, more than just training was needed. In particular, structural reform was needed for the protection and promotion of human rights.
While he had launched the idea that the Tripartite partnership should be allowed to extend its mandate to include a role in overseeing the elections, the international community could propose other ideas. In fact, he requested creativity from the international community in proposing those ideas.
He went on to stress that the upcoming November 2009 visit would be important. He aimed to visit several different States, but the itinerary was still under negotiation and he could, unfortunately, provide no further details at this point.
He underscored that he had begun his dialogue with Myanmar in a posture that favoured cooperation with the Government. But, he continued to raise his voice against human rights violations. Indeed, the time for change was nigh. The international community must approach the Government of Myanmar in the understanding that this was a historical moment that could prove the turning point for that country. In his opinion, there were political opponents who might be interested in standing for election. But, clear rules were needed and saying so did not mean he was interfering in the process.
The Government had recently shown clear signs of greater engagement with the international community. He would like to point out that there were two key instruments governing such relations: the Charter of the United Nations and the Universal Declaration of Human Rights. All the inhabitants of earth had the right to freely enjoy these rights, including the inhabitants of Myanmar. The issue of human rights was not the exclusive domain of national policies, and the inhabitants of Myanmar were his duty.
Statement by Special Rapporteur on Democratic People’s Republic of Korea
VITIT MUNTARBHORN, Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea, said the report covered the latter part of 2008 to mid-2009. Although he had sought to engage constructively with the country concerned, it was regrettable that it had declined to cooperate with the mandate.
Describing his work, he said he had carried out a mission to Mongolia in September-October to assess the impact of the human rights on that country, and findings from that trip would be integrated into the next report for the Human Rights Council in 2010.
The Democratic People’s Republic of Korea was a country based on a centralized system, geared to upholding the top-most leadership in a non‑democratic setting, and a “military first” policy, he said. It was party to four human rights treaties: the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination against Women; and the Convention on the Rights of the Child.
On a constructive front, he said the country had undertaken legal reforms, notably with several amendments to the Criminal Code and Criminal Procedure Code during the 2004-2007 period. Reports received in 2009 also showed that the national constitution had been reformed, with an explicit mention of human rights in its provisions. However, that had been undermined by the emphasis on a “military-first” policy. He welcomed the release of two United States journalists arrested by the country, the release of people from the Republic of Korea apprehended in the last year and the resumption of meetings between families separated by the 1950s Korean War.
Yet, the situation in the country remained “dismal and abysmal”, due to the repressive nature of the power base, he said.
Turning first to the freedom from want, he said food shortages had been at the heart of the “want” factor confronting the population since the mid-1990s, during which time there were “rampant” malnutrition and other tragedies inflicted on people, partly due to natural disasters and mismanagement. In 2009, the aid situation was still desperate.
Peoples’ suffering had been aggravated by the negative role of authorities for various reasons, he explained, saying that economic initiatives, notably on the part of women, were severely curtailed in 2007 and 2008 when authorities prohibited women under 40 years-old from trading. At the end of 2008, authorities planned to close general markets, with a ban on rice sales, and now were compelling people to obtain grain directly from State-run stores. The country’s biggest wholesale market was ordered closed, as part of a campaign to close markets. Further, small-lot farming would be prohibited in 2009.
Turning to the freedom from fear, he said pervasive repression ensured that people lived in continual fear. The State practiced extensive surveillance over people, and the “fear factor” was most evident when a person did not share the ideology of the elite. The situation was aggravated by practices such as collective punishment and public executions, the latter of which had been applied more particularly in recent years to those involved in human trafficking. Torture, though prohibited, was extensively practiced, and extensive discretion was conferred on authorities to impose sanctions through extra-judicial means. The 2004 Administrative Penalty Act granted great power to authorities to punish people, in disregard of the need for due process of law.
He said freedoms associated with democracy, such as that to choose one’s Government and to practice religion, were flouted daily, and relatedly, the media were heavily controlled. The authorities’ claim that freedom of religion was enjoyed was “unconvincing” from other evidence available. Further, authorities had been involved in kidnapping of foreign nationals, usually with the aim of using them for espionage or to steal their identity. Over 10 countries had been affected by the conduct of the Democratic People’s Republic of Korea, which had perpetrated those crimes extraterritorially.
Turning to the freedom from discrimination, he said that, given the hierarchical system in the country, those in the elite group lived well, while the rest of the population suffered. Women, beyond the elite group, often bore multiple tasks of housewife, bread winner and labourer forced to undertake Government-ordered programmes.
Regarding the assessment of child-rights implementation, he said 2009 had proved to be a key year, with the country delegation having appeared before the Committee on the Rights of the Child. However, the country report was “decidedly thin” on special protection measures for children, particularly street children, children of those who did not belong to the elite and those of political dissidents.
Regarding the freedom from persecution, he said the oppressive environment in the country, coupled with persecution of those who fell afoul of the regime, had resulted in forced displacements of people. Authorities had allowed a policy of strict control over citizens’ movement. There had been a longstanding outflow of persons persecuted by authorities who had left the country clandestinely, without travel permits. The 1990s food crisis also had led to increased migration of people in search of food. Whether one classified such people as refugees, it was important that all people in migration situations be treated humanely. Further, there were reports of more severe sanctions imposed on those who sought to leave the country and those who were forcibly returned, with prison sentences being applied.
As to the freedom from exploitation, he said authorities committed multiple forms of exploitation against the general population, from the systemic to community and personal levels. The exploitation of ordinary people had become a pernicious prerogative of the ruling elite and he called for a “people first” policy.
In the short-term, he recommended that the Democratic People’s Republic of Korea take various measures, the first of which was to respond effectively to the freedom of want by ensuring effective provision and access to food. The Government also should cooperate constructively with United Nations agencies and other humanitarian actors on that issue and enable people to undertake economic activities to satisfy their basic needs.
Next, he urged ending the punishment of those seeking asylum abroad, and who were sent back to the country, and said officials should avoid detention and inhumane treatment of such persons. The Democratic People’s Republic of Korea should terminate public executions and abuses against the security of the person, and other violations of rights and freedoms, by means of legal reforms and related implementation measures. It should also cooperate effectively to resolve the issue of foreigners abducted by the country, and address other issues, including the consequences of the Korean War. It should also respond constructively to the Special Rapporteur’s recommendations, reply effectively to his communications, and invite him to visit.
In the longer term, he said the Government should institute reforms to ensure greater participation in the process and compliance with international human-rights standards; institute equitable development policies based on a “people first” policy; introduce extensive food security-related measures, such as sound agricultural practices, and guarantee personal security and freedoms by dismantling the pervasive surveillance system and reforming the justice system.
Continuing, he said the Democratic People’s Republic of Korea should become a party to core human-rights treaties and ILO Conventions; and pay special attention to overcoming discrimination against women, children and those with disabilities by highlighting human-rights protection against neglect and abuse. The Government should tackle the root causes of displacement, and act against the impunity of those responsible for violence by means of effective redress. Moreover, it had to engage well with the Universal Periodic Review to ensure transparency and reforms. He also urged the Government to dialogue constructively with the treaty bodies to which the country was a party.
In closing, he invited the global community to respond to his recommendations, such as the need to address the Democratic People’s Republic of Korea’s human-rights record more comprehensively through the totality of the United Nations system, and the need to use the country’s non-cooperation with that mandate as an indicator for the Universal Periodic Review of the country, which would take place in the near future.
The representative of the Democratic People’s Republic of Korea reminded the Committee that it had never recognized the relevant resolution or the Special Rapporteur’s mandate. Rather, his delegation rejected the Special Rapporteur, as the resolution that established his mandate was a politically devised document. Moreover, the resulting report was “totally useless”.
Up to 2003, when a group of Western countries presented a resolution on the Democratic People’s Republic of Korea, his country had carried out a wide range of cooperation in the field of human rights. It had invited different delegations and non-governmental organizations to discussions in its capital. It also had regular contacts and exchanges of views with European Union ambassadors. It did so because it had nothing to hide, or to be afraid of. It did so because it had a system of protection and promotion of human rights, including a free health-care and education system. However, all of these exchanges had been stopped, following the presentation of the resolution by the group of Western countries. They had been stopped because discrimination against the Democratic People’s Republic of Korea could not be allowed and because the country could not be singled out for the sinister purposes of those countries.
He stressed that there were no human rights abuses in his country. But, the Democratic People’s Republic of Korea wanted to be treated equally with other countries. That principle would never be abandoned. It was on the basis of that principle that the Democratic People’s Republic of Korea participated with the Committee on the Rights of the Child. Indeed, it had submitted its country report. It would continue to participate in the United Nations human rights bodies that treat countries equally. But, it would continue to reject being singled out. It would be a big mistake to think anything would change by such methods.
The delegate of Sweden, speaking also on behalf of the European Union, said that, despite the Government’s refusal to cooperate with the Special Rapporteur, he had continued to carry out his mandate. She urged the Democratic People’s Republic of Korea to cooperate. Noting the Special Rapporteur’s judgment that the human rights situation in the Democratic People’s Republic of Korea remained “abysmal”, she asked if he could advise how an integrated approach could be implemented to ensure the protection of human rights there. What areas should be given priority? Were there any signs of engagement on the Government’s part in the field of human rights that could be encouraged by the international community? While it had signalled a willingness to engage in the Universal Periodic Review, it had shown no interest in technical assistance from the Office of the United Nations High Commissioner for Human Rights. Could he see any way to encourage interest in technical assistance? Had the Democratic People’s Republic of Korea shown any sign of moving away from its “military first” policy?
Australia’s representative said her country continued to be concerned about reports over the abuses in the Democratic People’s Republic of Korea. While some recent political engagement had been seen, such as its participation in the Committee on the Rights of the Child and cooperation with the United Nations Population Fund for a 2008 census, Australia remained deeply disappointed with its unwillingness to cooperate with the various United Nations human rights bodies, particularly the Special Rapporteur. She would be interested in hearing any ideas the Special Rapporteur might have to promote engagement.
Japan’s delegate noted the persecution of people who were returned to the Democratic People’s Republic of Korea. He called for the implementation of the Special Rapporteur’s recommendations, including the dismantlement of surveillance systems. The recommendation on the abduction issue was particularly important. He recalled that the Democratic People’s Republic of Korea had stated it was ready to conduct an investigation on this front. But, so far it had done nothing. Moreover, its representatives had stated that the abduction had been completely resolved and no further action was needed. But, the truth was that it had done nothing -- it had not honoured its agreement and, put simply, there had been no progress.
He noted that, last month, Japanese Prime Minister Yukio Hatoyama had stated that making forward progress in this area would be an avenue for cooperation between the two countries. He also underlined the readiness of the United Nations system, including the Office of the High Commissioner to engage with the Democratic People’s Republic of Korea. Japan wondered what the Special Rapporteur thought he could do, if he was allowed into the country.
The United Kingdom’s delegate, fully associating himself with the European Union, thanked the Special Rapporteur for his hard work in extremely difficult circumstances. He was deeply concerned by systematic violations of civil, political, economic and social rights, which included use of slave labour camps, extrajudicial executions, and the Government’s refusal to engage on such issues.
While slight improvements had been seen, notably that people with disabilities were being integrated into society, he said the problem was that, until the country engaged with human rights mechanisms and allowed unfettered access, it would be difficult to verify information. Had the Special Rapporteur seen reports, and if so, what credence did he give them?
Human rights violations suffered by border crossers were also cause for concern, he said. Had the Special Rapporteur engaged with receiving States or the Office of the High Commissioner for Refugees to ensure that those people were treated in line with international law? The Special Rapporteur had urged the Democratic People’s Republic of Korea to reform the justice system, including through the development of an independent judiciary. What was the highest priority and how could the global community support reform? He thanked him for his work to highlight the situation in the Democratic People’s Republic of Korea and constructive suggestions for improvement.
The representative of the United States thanked the Special Rapporteur for his detailed report. She recognized his commitment in carrying out his mandate, notably as he had received no cooperation from Democratic People’s Republic of Korea. The human rights situation remained grave on many fronts, with near absolute repression. The report had discussed food insecurity and Government policies that had exacerbated that situation. Were there signs that authorities planned to modify or reverse such policies?
Among the report’s more disturbing sections was that on the climate of fear, she said, adding that collective punishment, among other things, was deplored by the United States and such behaviour should end. On asylum seekers, and retribution against them, she said questions had been raised about prosecution of North Korean migrants. She wished to hear the Special Rapporteur’s views on the refugee situation and any discussions he had held with other countries on their plight.
The delegate of the Democratic People’s Republic of Korea, in a point of order, asked the United States representative to use the proper name of his country.
The Chair then asked the United States delegate to use the name “Democratic People’s Republic of Korea”.
Resuming, the representative of the United States said her Government remained deeply concerned at the plight of refugees. Human rights were a top priority and addressing such issues would impact on the prospects for closer United States-Democratic People’s Republic of Korea ties. The United States continued to work with non-governmental organizations and others to help improve human rights in the Democratic People’s Republic of Korea.
The representative of the Republic of Korea thanked the Special Rapporteur for his insightful report and presentation. She shared his deep concern at the overall human rights situation in that country, notably regarding those who had left the country in search of food. They had often been subject to exploitation and forced to return to their country. She strongly supported the call for the global community to abide by the principle of non-refoulement. She also shared the view that attention be given to the plight of vulnerable groups, including women and children. Regarding the reunion of families separated by the Korean War, she said that issues had been among the most urgent humanitarian concerns of both her country and families involved. She hoped that family reunions would be regularized and expanded.
On the positive developments, including the review of implementation of the Convention on the Rights of the Child, and reform of domestic laws, she asked for the Special Rapporteur’s views on the impact of those developments. On the Universal Periodic Review, to be held in December, she hoped it would help bring about substantial improvements in daily lives. Were there any suggestions on how to ensure that?
The delegate of Norway, thanked the Special Rapporteur for this report and steadfast dedication. He expressed deep concern that the Government’s unwillingness to cooperate had impeded the Special Rapporteur from carrying out his mandate, and regretted that he had been forbidden access to the Democratic People’s Republic of Korea. Norway supported allowing the Special Rapporteur access. Norway was encouraged by the continued efforts on the issue of forced repatriation of North Koreans. He shared the view that the serious humanitarian situation in the Democratic People’s Republic of Korea had hampered the fulfilment of human rights, and commended the Secretary-General for calling on the Government to address peoples’ serious needs. Norway looked forward to the Universal Periodic Review process.
The delegate of Canada thanked the Special Rapporteur for his report and presentation, and joined in calling on the Democratic People’s Republic of Korea to cooperate fully with the mandate. Canada was gravely concerned at reports of public executions, collective punishments and violence against pregnant female prisoners, food unavailability, and curtailed economic initiatives. Had he observed signs of improved food availability and security? She had noted his recommendations, including the call to countries to maximize dialogue with the Democratic People’s Republic of Korea. What did he recommend in that regard?
Responding to the Democratic People’s Republic of Korea, Mr. MUNTARBHORN recalled that he was fully independent. He stressed that he conducted his investigations on his own, analyzed his findings independently and wrote and even typed up his reports himself. He suggested that it was in the best interests of the Democratic People’s Republic of Korea to have a Special Rapporteur who was so fully independent. He also noted that the Democratic People’s Republic of Korea had access to his reports before anyone else and had the opportunity to make comments. While they had never given such comments, he thought this should be known, as it was courteous on his part. In light of the sprit of human rights, it was regrettable that there had been no cooperation and that the situation could be described as dismal.
Responding to Sweden, he called attention to his previous report to the Human Rights Council, which had looked at preventive measures and the participation of different parties. There was a need for greater aid, as well as participation. This was premised, of course, on the need for the Government to shift from a “military first” to a “people first” policy.
To be fair, the Democratic People’s Republic of Korea did engage on the four treaty bodies to which it was a party, he said. Calling on it to implement its obligations under those bodies, he noted, that were actually the same as what he was calling for as Special Rapporteur. This included the Universal Periodic Review mechanism.
He agreed that the Democratic People’s Republic of Korea had not sought assistance from the Office of the United Nations High Commissioner for Human Rights, presumably because of the resolutions with which it did not agree. He urged that the “people first” policy should be entrenched in the implementation process, irrespective of the fact that the “military-first” policy was entrenched in the Constitution.
On migration, he called for an end to the persecution of refugees, as well as the end to punishment of those who left or returned without a visa.
Turning to Australia’s question on militarization, he recalled that even those United Nations Security Council sanctions on the Democratic People’s Republic of Korea that were related to arms-proliferation issues stated that humanitarian aid should not be affected. He believed the emphasis on human rights should be taken up throughout the entire United Nations system.
On Japan’s question, he supported the call for the abduction issue to be addressed expeditiously. In that respect, he noted there was a sort of convergence on the “Pyongyang Agreement” between the two countries. He further responded that, if he were allowed to enter the country, he would try to be fair on what he saw and use it as an opportunity to engage all actors.
He said formal improvements in the human-rights field were usually in the form of new laws or constitutional amendments. But, the test was on how to implement them.
Regarding asylum seekers, he would act on formal cases, as would the Office of the United Nations High Commissioner for Refugees. He further stressed that, with respect to juvenile justice, children should not be kept in institutions. He remained concerned about the need to reform the judiciary.
Addressing the questions of the United States on the food situation in the Democratic People’s Republic of Korea, he noted the country engaged in the “150‑day food battle”, which compelled the people to produce food. Of course, what was truly needed was food security, rather than the army going into farms and compelling people to produce food. In that regard, he expressed support for the WFP, which was currently feeding just over 1 million people, even though many more needed food aid.
On the human rights of migrants and refugees, he said they should be afforded humane treatment. He welcomed all dialogue on this matter on the basis of respect for the principle of non-refoulement and family reunification. On the recent such reunification, he urged that the door also be opened to people with disabilities.
He urged the Democratic People’s Republic of Korea to engage in the Universal Periodic Review and its other reporting obligations. In that respect, and in reference to Norway’s question, he invited countries to look at all possible reports by the Democratic People’s Republic of Korea.
Regarding food assistance, he said that people should be given assistance to produce food, and not just to eat. He further noted that the Democratic People’s Republic of Korea was not poor. In fact, last year, the trade volume with some countries reached billions. The question was: Where did the money go? He welcomed dialogue in the Security Council, the Universal Periodic Review, the treaty bodies, local presences and the special procedures. He said the total response with respect to the human-rights situation in the country should be across the entire United Nations system.
Statement by Special Rapporteur on Palestinian Territories
RICHARD FALK, Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967, recalled that the Special Rapporteur of the mandate had been expelled from Israel on 14 December 2008 and, despite formal efforts to discuss future visits to the Occupied Palestinian Territory, Israel had ignored all such approaches, without explanation.
His report (document A/64/328) of 25 August had been submitted to the General Assembly and took particular note of Israel’s continued unlawful non‑cooperation with the work of the mandate-holder, he said. Along similar lines, Israel had denied entry and cooperation with the Human Rights Council Fact Finding Mission, headed by Judge Richard Goldstone, and such behaviour both set an unfortunate precedent for the Council’s relations with a United Nations Member State, and interfered with the work of the mandate. It was recommended that the Assembly or the Council request clarity on the consequences of such behaviour by referring the issue to the International Court of Justice.
Describing his report, which covered the December 2008 to July 2009 period, he said it focused on issues of the Gaza crisis, the accountability gap, the International Court of Justice Advisory Opinion on the Israeli security wall, settlement expansion, Palestinian self-determination and gaps in international humanitarian law.
In addition, he said the Goldstone Report, released on 15 September, was particularly significant in relation to the mandate on the protection of human rights in occupied Gaza. That Report challenged the United Nations, as never before, to implement fully-documented findings on the commission of war crimes, by both Israel and Hamas. It also had proposed steps that looked towards accountability, either via the Security Council monitoring domestic proceedings, via the International Criminal Court, or recourse to universal jurisdiction. If allowed to go forward, such developments would be a “major achievement” for proponents of the rule of law in relation to Israel’s impunity vis-à-vis administration of the occupied Palestinian territories.
On the Gaza crisis, he said the overall situation continued to deteriorate in a manner that disclosed grave breaches of the Fourth Geneva Convention and of international human rights law, which had implications under international criminal law. Due to the persistence of the blockade, insufficient basic necessities had reached the population and health conditions had worsened.
On the issue of accountability, he said there had been various authoritative reports that, together, confirmed allegations of war crimes. Also, there had been civil-society initiatives, like boycotts of cultural events and contract cancellations, and other similar Governmental actions, including a recent decision by the British Government to cancel contracts for delivery of spare parts to the Israeli navy, based on objections to the way in which Israel had conducted recent military operations.
The fifth anniversary of the Advisory Opinion on the Israeli security wall, on 9 July, drew attention to the fact that, despite the near unanimity of the Court that the wall was unlawful and should be dismantled, Israel continued its construction. Israel’s defiance of the Court’s ruling was a serious violation of its obligations as a United Nations Member State. The United Nations’ failure to make more of an effort to implement such a clear conclusion of international law further showed that Palestinian rights were not being respected, and that Israel enjoyed a situation of de facto impunity. Continued Palestinian non-violent demonstrations at wall-construction sites had been met with excessive force by Israeli security forces.
Turning to settlement expansion, he said that, despite calls for a freeze, reports indicated that expansion continued in East Jerusalem and the West Bank. A freeze, even if agreed upon, did not deal with the underlying illegality of the settlements, as set out in article 49(6) of the Fourth Geneva Convention.
On Palestinian self-determination, he said that inalienable right, thwarted by Israeli occupation of Palestinian territories, was enshrined in Article 1 of both international human-rights covenants. It had been widely assumed that the exercise of that right would be brought about through bilateral negotiations and reinforced by the United States and the Quartet. It was of the utmost urgency to work towards a peaceful solution and an end to Israeli occupation.
Taking note of two contradictory developments, he said a main negative development had been Israel’s unwillingness to endorse the international consensus on a sovereign Palestinian State, which would comprise the West Bank, Gaza, and East Jerusalem as its capital. The inability on the Palestinian side to achieve unified representation seemed to be a precondition for meaningful peace negotiations.
He said positive developments included clear formulations on the importance of progress on the issue of self-determination, on the basis of an end to Israeli occupation and establishment of Palestinian statehood. Sentiments expressed by the United States President on 4 June -- regarding the “intolerable” situation for the Palestinian people -- were similarly reiterated in the Security Council on 11 May and the Quartet on 26 June. Security Council resolution 1860 (2009) called for urgent efforts to achieve comprehensive peace, based on the vision of two democratic States living side-by-side in peace with secure, recognized borders.
Continuing, he said the Israel’s occupation of Palestinian territories and military operations had revealed three gaps in international humanitarian law that merited attention, including denial to their civilians’ right to depart from combat zones, notably for inhabitants of Gaza during “Operation Cast Lead”. Second, the denial of internationally-donated reconstruction aid to repair war damage in Gaza, due to maintenance of the blockade, could be treated as an instance of collective punishment, as it raised distinct post-combat issues not explicitly addressed by international humanitarian law. Also, as a result of the prolonged occupation and mobility restrictions, “anguishing” family fragmentation had added to Palestinian suffering. They were unacceptable under international human rights law.
Against that backdrop, he recommended that the General Assembly request an Advisory Opinion on the obligations of United Nations Member States to cooperate with the Organization. Also, States should be encouraged to use national means, including courts, to fulfil their obligations under the Fourth Geneva Convention. Respect for international law -– and all Palestinian legal rights -– should be, henceforth, integral to future peace negotiations. The unlawfulness of Israeli settlements should be confirmed and steps taken to move beyond the freeze in the direction of dismantlement. Consideration should be given to requesting the ICRC to study and make recommendations on the special problems arising from prolonged occupation. Finally, he urged that the General Assembly implement the Goldstone Report’s recommendations as a matter of its highest priority.
The Permanent Observer of Palestine thanked Mr. Falk for his report. He shared the sentiment reflected in the recent resolution from the Human Rights Council, which condemned Israel’s obstructionist policies against the investigations of both Richard Goldstone and Mr. Falk, among others. This obstruction by Israel served neither the cause of justice nor the United Nations search for the protection of human rights.
In relation to this report, he assured the Committee that large numbers of delegations would do everything they could to implement the recommendations, until impunity was ended. Israel could not be above international law. It had to be treated like every other country. It was the responsibility of everyone to bring to justice those criminals who had killed Palestinians in the Gaza Strip and elsewhere. He wished the Special Rapporteur success and assured him of his delegation’s full cooperation.
The United States representative said that, since taking office, President Obama had made clear his abiding commitment to ensure stability in the Middle East, which included two States living side by side in peace. Her delegation regretted that Mr. Falk’s report referred only to violations by Israel. The United States continued to urge a balanced focus on violations and abuses in all territories. Guided by its commitment to the universal application of such laws, it took violations of allegations of human rights and humanitarian law seriously. However, this commitment could not be understood to establish moral equivalence between a democratic Israel and Hamas, which responded to Israel’s withdrawal from Gaza by launching terrorist attacks.
She noted that Israel had received at least 100 complaints of abuse in Gaza and had already investigated several of them. On other hand, Hamas was a terrorist group that had seized control of Gaza and had no institutions to deal with these violations. She requested that the Palestinian Authority carry out its own investigation into the violations of international law by Hamas. Her delegation had serious reservations about the Special Rapporteur’s recommendation, including that anybody request an opinion from the International Court of Justice on Israel’s refusal to cooperate, among others. These were neither aimed nor calculated to contribute to accountability by all sides to the conflict. She urged all Member States to conduct a genuine search for peace in the Middle East.
Iran’s representative expressed his country’s appreciation to Mr. Falk for the current report. Although the report covered some gross violations in the Occupied Palestinian Territories, including war crimes committed during “Operation Cast Lead”, other violations remained to be addressed. The recent violations must be seen in the context of more than 60 years of war crimes. Indeed, they could not be considered as a single case, especially since 1.5 million people were trapped in despair and since women and children were killed. Considering the report, he wondered why it contained no recommendations for the referral of this regime to the appropriate bodies, who could examine its accountability for the commission of war crimes.
Sweden’s delegate, speaking on behalf of the European Union, expressed deep concern on the deteriorating human rights and humanitarian situation in the Occupied Territories. Her delegation believed all parties were obliged to respond to all violations of such rights. To that end, what practical measures could the United Nations take to improve cooperation with Israel and the Palestinian Authority to improve the human rights situation?
Egypt’s delegation said she had been heartened by the situation reflected in the Special Rapporteur’s report, not in terms of the violations, but in terms of the breadth of his consideration of the human rights situation. She agreed with Sweden’s question: How could the international community better influence the situation, particularly through a roadmap that could fully implement all resolutions that had been adopted, but not acted on in the Occupied Palestinian Territories? How could the international community respond to this selectivity towards different armed conflicts? How would Mr. Falk respond?
The representative of the Maldives said that, as a firm believer in the principles of the United Nations Charter, his delegation was disheartened by the continued suffering of the Palestinian people. It also supported the right of Israel to live in its own homeland. He sought more clarity on how the Special Rapporteur thought the United Nations human rights bodies could better respond to violations of human rights in the area. Regarding women and children, could such a perspective be incorporated in the work of the Special Rapporteur?
Syria’s delegate saluted the courage of the Special Rapporteur, at a time when human rights were being so selectively addressed. Given the accusations in his report, as well as the Goldstone report, she said there seemed to be no will on the part of the international community to push Israel to comply with its obligations under intentional law. She particularly focused on other States who said they were championing human rights in places in Myanmar and the Democratic People’s Republic of Korea, but ignored allegations of such violations in the Occupied Palestinian Territories. To this end, she thanked the Special Rapporteur for his recommendations, but wondered how they could be implemented and a just, lasting solution be found.
Responding, Mr. FALK noted that all three of today’s Special Rapporteurs had faced the same problems of non-cooperation from the country they were tasked with assessing. He believed that it was the responsibility of the international community, as well as the General Assembly, to take this non-cooperation seriously and to address it in a non-political manner. Israel should receive the same focus that Myanmar and the Democratic People’s Republic of Korea did. Moreover, it was in the interest of peace that some sort of openness and dialogue prevailed in the consideration of these mandates. It was the commitment of these Special Rapporteurs to pursue their mandates in an independent manner and with an overriding commitment to truth, as they attempted to convey the human rights situation to the relevant authorities.
He said the overriding issue was, really, that in 40 years -- since 1967 -- the international community had still not acted to call into account a country that was neglecting its responsibility under international law. Thus, there were two interconnected issues: achieving justice for these victims; and ending the impunity of the State responsible for them.
In response to the comment of his own Government, the United States, he said it was all very well to speak abstractly about a commitment to peace. But, there was an ongoing commitment that had been obtained for the years of the occupation. He saw no interest on the part of the United States, in its very important role in relation to this conflict, to seek compliance and accountability, the failure of which had produced an ordeal of suffering for the Palestinian people. He believed that calling on the International Court of Justice to mandate and require cooperation on the part of a Member State was a constructive step, particularly in the absence of repeated failures to achieve this cooperation by voluntary means and by efforts of persuasion. How else could one make such a mandate, which required access to the Occupied Territories, effective?
He appreciated the attention given by Iran’s delegation to the long history of the occupation. Indeed “Operation Cast Lead” should be considered as part of a history of excessive use of force and reliance on the use of collective punishment. It was long past time that such human rights violations were passed by with merely rhetorical reflections. The time for practical engagement by the international community had certainly arrived.
He underlined the call by the Swedish delegation for all parties to work on this issue. The most immediate practical step possible was to take seriously the recommendations of the Goldstone report, which was an objective report by highly respected authorities and provided a clear basis on which to challenge impunity. If it was ignored, it would send a very unfortunate message to the Palestinian people and Israel, suggesting that international law was only important when it coincided with the geopolitical concerns of world’s most powerful countries.
He also believed that the situation of prolonged occupation called for distinct attention. When does an occupation that goes on for so long without heeding the framework of humanitarian law, become a threat itself to international peace and security?
He thanked Syria and the Maldives for their stress on these issues. He also welcomed the focus on women and children, particularly in light of the denial of their right to become refugees. That had almost never happened in the history of modern warfare. Further, while the number of casualties had received attention, not enough attention had been paid to the psychological harm to these children. This closing off of any escape route from a combat zone deserved particular attention. That concern was also aggravated by the fact that an occupying Power had special responsibilities, in that regard.
In closing, he emphasized that his report, as well as the Goldstone report, required specific actions to be taken. If they were, it would reinforce the credibility of the United Nations. If they were not, it would confirm that the United Nations could not work effectively when there were significant political obstacles to action.
Action on Drafts
Pausing its dialogue with the Special Rapporteurs, the Committee took action on a series of draft resolutions.
The Committee first took up, as orally revised, the draft resolution on follow-up to the tenth anniversary of the International Year of the Family and beyond (document A/C.3/64/L.7).
Introduced by the representative of Sudan, on behalf of the Group of 77 developing countries and China, the proposed text would have the Assembly urge Member States to create a conducive environment to support families, recognizing that equality between women and men and respect for the rights and freedoms of all family members were essential to family well-being and society. The text notes the importance of reconciliation of work and family life, and would recognize the principle that both parents had common responsibilities for the upbringing and development of children. It would decide to consider preparations for, and observance of, the twentieth anniversary of the International Year of the Family at its sixty-sixth session, under the item “Social development, including questions relating to the world social situation and to youth, ageing, disabled persons and the family”.
The delegate of Sweden, speaking on behalf of the European Union in explanation of position prior to action, thanked the Group of 77 and China, among others, for their constructive approach to discussions. Sweden attached great importance to family-related issues. Recognizing the crucial role of parents, carers and families in improving outcomes for children, his delegation shared the view of the valuable contribution they made to strengthening societies.
For policies to succeed, they must be inclusive, he explained. Across the European Union, and other parts of the world, families had changed and would continue to change with time. The family was a living, dynamic entity. Everyone must recognize such diversity, as had been done at various conferences in the 1990s, and that ongoing policy discussion and development should reflect the diversity of family norms. Given that, he understood all references to family as reflecting such diversity. Support was increasing for an inclusive approach to the family and he looked forward to continued discussion on the issue in two years time, when the International Year of the Family would be observed. He also looked forward to a modest and focused observance.
Also speaking in explanation of position prior to action, the delegate of the United States said he was pleased to join consensus on the resolution. The United States recognized the importance of the family. The Cairo Programme of Action stated that the family was the basic unit of society and that various forms of the family existed in different cultural, political and social systems. When proclaiming 28 September 2009 as Family Day, the United States President noted that children raised in loving homes had the ability to reject negative behaviours and reach their highest potential. Whether children were raised by two parents, a single parent, grandparents, a same-sex couple, guardians, families encouraged people to accomplish great things.
At the same time, he said his delegation would have preferred if the phrase “various forms of the family” could have been included in the text.
The Committee then adopted the resolution A/C.3/64/L.7, as orally revised, without a vote.
The Committee then turned to a draft resolution on cooperatives in social development (document A/C.3/64/L.10), introduced by the representative of Mongolia.
By its terms, the Assembly would recognize that cooperatives, in their various forms, promoted the fullest possible participation of all people in their economic and social development, including women, youth, older people, people with disabilities and indigenous peoples. It would recognize that cooperatives were becoming a major factor of economic and social development, and that they contributed to the eradication of poverty.
It would have the Assembly proclaim 2012 as the International Year of Cooperatives. States were urged to use, and develop fully, the potential and contribution of cooperatives for the attainment of social development goals, in particular the eradication of poverty, as well as to generate full and productive employment and enhance social integration. They would be urged to encourage and facilitate the establishment and development of cooperatives. To that end, States were urged to implement better legislation, research, sharing of good practices, training, technical assistance and capacity-building of cooperatives, especially in the fields of management, auditing and marketing skills. They would also be urged to “harmonize” statistical methodologies to enable sound policy formulation.
The Committee then adopted resolution A/C.3/64/L.10, as orally revised, without a vote.
The Committee then turned to the draft resolution on follow-up to the Second World Assembly on Ageing (document A/C.3/64/L.6), approving it, as orally revised, without a vote.
Introduced by the representative of Sudan, on behalf of the Group of 77 developing countries and China, the draft would call on States to develop their national capacity for monitoring and enforcing the rights of older persons, in consultation with all sectors of society, including with organizations of older persons. It would call on States to address the adequate health care of older persons, including lack of access to proper food, shelter, health care and medicines, as well as cases of neglect, abuse and violence against older persons, wherever these situations exist. It would call them to consider how best to improve international norms and standards pertaining to older persons.
Speaking in explanation of position prior to action, the United States’ delegate said his country respected and protected the human rights of all persons, including older persons, and had enacted laws opposed to age-related discrimination, including the Age Discrimination Act of 1975 and the Older Workers Benefit Protection Act of 1990.
The resolution called for States to eliminate discrimination on the basis of age, he said. While there were certain cases in which the use of age as a distinction had a reasonable basis and was done to achieve a legitimate purpose, the United States viewed the resolution as being aimed at invidious discrimination. Examples of a legitimate distinction based on age included United States laws that protected children and barred them from various activities. Another example was the United States Constitution’s minimum ages for holding certain political offices. The Age Discrimination in Employment Act of 1967 allowed certain aged-based employment decisions, for example, where age was a bona fide occupational qualification. That interpretation of discrimination was generally consistent with paragraph 13 of the Committee on Civil and Political Rights’ General Comment no. 18, on non-discrimination.
The Committee then adopted resolution A/C.3/64/L.6, as orally revised, without a vote.
Next, the Committee turned to the draft resolution on the Convention on the Elimination of All Forms of Discrimination against Women (document A/C.3/64/L.17) -- introduced by the representative of Finland -- was then approved, without a vote and with oral amendments. The Secretary of the Committee and the representative of Finland, who announced those amendments, also informed Member States that the amendments could be found in a document being circulated in the room.
The draft would have the Assembly urge States parties to the Convention to comply fully with their obligations under the Convention and its Optional Protocol and to take into consideration the concluding observations, as well as the general recommendations of the Committee on the Elimination of Discrimination against Women. The text’s preambular paragraph refers especially to general recommendation No. 26, on women migrant workers. It would have the Assembly strongly urge States parties to the Convention to take appropriate measures so that acceptance of the amendment to article 20, paragraph 1, of the Convention (relating to meeting time) by a two-thirds majority of States parties can be reached as soon as possible and the amendment can enter into force.
Speaking after its approval, the representative of Syria said her Government had been pleased to join the consensus. Referring to paragraphs 4 and 11, which made mention of the Committee on the Elimination of Discrimination against Women, she reiterated her understanding, when handling of human rights issues, the Committee must take account of the specificities of each nation. As such, its observations and general recommendations, which were nonbinding, must be objective, intended to assist States in implementing the Convention while being mindful of their historical, cultural and religious specificities. Measures to improve follow up of the Committee’s recommendations should not “transcend its mandate”. Syria would like to examine the situation when the agenda item was due again before the Committee, in two years time.
Turning to the next text, the Committee then approved, without a vote, a draft resolution on Preparations for the Twelfth United Nations Congress on Crime Prevention and Criminal Justice (document A/C.3/64/L.13).
The Twelfth Congress is scheduled to take place in Salvador, Brazil, from 12 to 19 April 2010, under the theme, “Comprehensive strategies for global challenges: crime prevention and criminal-justice systems and their development in a changing world.” Introduced by the representative of Brazil, the draft text would have the Assembly request the United Nations Secretary-General to prepare an overview of the state of crime and criminal justice worldwide for presentation at the Twelfth Congress, in accordance with past practice. The Assembly would reiterate its request to the United Nations Secretary-General to make available the necessary resources to ensure the participation of the least developed countries. It would request the United Nations Secretary-General to facilitate the organization of ancillary meetings of non-governmental and professional organizations participating in the Twelfth Congress.
Prior to its adoption, the Secretary of the Committee informed Member States that adoption of that draft resolution would not entail additional requirements under the 2010-2011 biennium budget.
Finally, it approved the draft resolution on the United Nations African Institute for the Prevention of Crime and the Treatment of Offenders (document A/C.3/64/L.14) also without a vote, and as orally revised.
Introduced by the representative of Uganda, the text would request the United Nations Secretary-General to intensify efforts to mobilize all relevant entities of the United Nations system to provide the necessary financial and technical support to the Institute to enable it to fulfil its mandate. It would also request the United Nations Secretary-General to continue his efforts to mobilize the financial resources necessary to maintain the Institute with the core professional staff.
The representative of Uganda informed the Committee of a deletion to the text, which was reflected in a document circulated in the room.
Special Representative on Human Rights and Transnational Corporations
JOHN RUGGIE, Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, recalled that the Human Rights Council had welcomed the “protect, respect and remedy” policy framework that he had put forward. The framework rested on three pillars: the State duty to protect against rights abuses through policies, regulation and adjudication; the corporate responsibility to respect human rights; and greater access of victims to effective remedy, judicial and non-judicial.
He said the Council had extended his mandate by three years to provide practical recommendations and guidance to States, businesses and others. He outlined five key challenges in that respect. First, companies could affect an entire spectrum of rights in addition to workplace issues. Those included health-related rights, and rights related to an adequate living standard, including access to housing, food and water. They also included rights relating to the physical security of the person, the rights of indigenous peoples, and classic civil rights such as free expression, privacy, peaceful assembly and a fair trial.
“The quest to construct, ex ante, a delimited list of business-specific rights for which companies would have some responsibility is a fool’s errand,” he said. “Virtually all rights are relevant, though some may be more so than others in particular circumstances. This fact needs to inform the policies of States and companies alike.”
He said Governments currently lacked adequate policies and regulatory arrangements for fully managing the business and human rights agenda. Although some States were moving in the right direction, overall, their practices exhibited substantial legal and policy incoherence. “Horizontal incoherence” was seen when departments and agencies that directly shaped business practices -- trade, investment, export credit and insurance, corporate law and securities regulation
-- conducted their work in isolation from, and largely uninformed by, their Government’s human rights agencies and obligations, and vice versa.
He said that even large multinational companies, with rare exceptions, lacked full-fledged internal governance and management systems for conducting adequate human rights due diligence. Their approach was legalistic, focusing on requirements of their legal license to operate, and only slowly discovering that meeting legal requirements alone might fall short of the expectation that they operate with respect for human rights. That was especially true in places where laws were inadequate, or not enforced. They also lacked grievance mechanisms to which affected persons could bring concerns, including companies with large physical footprints on their areas of operation, such as extractive and infrastructure projects. In so doing, companies denied those who were adversely affected by their activities an opportunity to resolve issues that might be readily remediable. They were denying themselves an early warning system that could ring before disputes escalated into major campaigns, or lawsuits.
He noted that corporate-related human rights abuse was higher in countries with weak governance. The worst cases occurred amid armed conflict over territory, or of the government itself. Those situations attracted marginal and illicit enterprises, which treat them as law-free zones. Legitimate firms might become implicated in abuses committed by, for example, security forces protecting company installations and personnel. Those situations also blocked access to justice by victims.
He said the use of extraterritorial jurisdiction might be one way to close such impunity gaps. The United States Alien Tort Statute had become a de facto ultimate recourse, because federal courts had applied it to conduct abroad by companies that need only have a limited connection to the United States. But, it was far from a systemic solution; a better solution would include greater enforcement of existing laws, clearer standards and more innovative policy responses by both home and host States. The “protect, respect and remedy” framework reflected the fact that the complex challenges of business and human rights did not lend themselves to a singular solution. It was intended to generate an interactive dynamic among the different roles and responsibilities of States and business, producing progress on a cumulative basis.
He said the framework received unanimous backing in the Human Rights Council, strong endorsements by international business associations and individual companies, and positive statements from civil society. Numerous national bodies had invoked the framework in its own policy assessment, including Norway, in its white paper on corporate responsibility, and the United Kingdom Parliament, in its hearings on business and human rights, and the South Africa Human Rights Commission’s submission to its review of bilateral investment treaties.
He explained that the European Commission was drawing on the framework in a study of legal liability regarding human rights and the environment applicable to European enterprises operating abroad. The Organisation for Economic Cooperation and Development (OECD) had agreed to update its guidelines for multinational corporations, and had invited Mr. Ruggie’s involvement. He said the United Kingdom Government, acting under those guidelines, cited the framework’s human rights due diligence component in a finding against Afrimex, a United Kingdom-based oil trading company accused of rights violations in the Democratic Republic of the Congo. The Special Rapporteur on toxic wastes referenced the framework in making his case against Trafigura, a commodities trading company accused of dumping wastes near Abidjan, Cote d’Ivoire.
Others that had taken up the business and human rights agenda recently included ASEAN, Economic Community of West African States (ECOWAS) and the Organization of American States (OAS).
He said the mandate’s success was based on exhaustive research of facts on the ground, including: voices and views of victims; on legal standards; and government and corporate policies. Some 19 corporate law firms were mapping more than 40 jurisdictions, asking the extent to which corporate law facilitated or impeded the corporate recognition of human rights. He had continued to conduct more stakeholder consultations than any other comparable effort, a total of 26 since 2005. He had been to Bangkok, Bogota, Buenos Aires, Geneva, Johannesburg, London, New Delhi and Paris, with Berlin and Moscow next.
He announced that a representative group of States had agreed to participate in a series of informal and off-the-record brainstorming sessions on how to help companies operating in conflict-affected areas avoid becoming involved in human rights abuses. Confirmed participants included Belgium, Brazil, Canada, China, Colombia, Guatemala, Nigeria, Norway, Sierra Leone, Switzerland, United Kingdom and United States. In the next phase of his work, he would provide the practical recommendations and concrete guidance asked for by the Human Rights Council.
Following Mr. RUGGIE’s presentation, Norway’s delegate said the Special Representative’s report formed the backdrop to his Government’s first report on corporate social responsibility in the private and public sectors. The purpose of that paper was to clarify corporate social responsibility, and society’s expectations towards it. In that context, it was important that norms were being developed under the United Nations auspices, which required the Organization to work as one. As such, he called for greater coherence within the United Nations system.
The representative of Sweden, on behalf of the European Union, thanked the Special Representative for his presentation. His delegation believed that business activities must be done in a manner consistent with human-rights enjoyment. Indeed, that protection fell to States and could not be transferred to businesses. Safeguarding States’ ability to protect against business-related harm was among the core areas of focus. The report also discussed broad investment agreements. Could he provide an example of how such agreements had been detrimental to States’ ability to protect human rights?
Also, could he recommend ways to deal with difficult issues faced by businesses in conflict zones? Finally, he asked in what ways the current global crisis had affected States’ ability to ensure enjoyment of human rights.
The delegate of Canada welcomed the Special Representative’s progress in framing the business and human-rights debate. She supported his “protect, respect and remedy” framework for business and human rights, adding that Canada planned to outline guidance for States and companies on such issues. What were the responsibilities of companies operating in countries that did not protect human rights? Also, where did extraterritorial jurisdiction stand in relation to international law, and what was the plan to move it forward? What was the home State’s role in preventing actions that happened in another jurisdiction?
Chile ’s delegate asked for the Special Representative’s views on States’ work in promoting women on executive boards of corporations. The work of women added a different element to a corporation’s work.
The representative of Malaysia welcomed the report, saying that the pillars of the proposed framework ensured a balance among competing desires for protecting human rights and promoting growth. Could the Special Representative elaborate on the idea that there was consensus on corporate social responsibility? Regarding his guiding principles, was there a timeline in which he envisioned they would be completed? Which body had most influence on ensuring that corporations adhered to such principles? On the economic and financial crisis, he said blame had been placed on a lax regulatory framework and lack of corporate social responsibility. With some of the reforms that States had taken, was there still a chance to instil human-rights ideas into corporate culture?
The United States delegate had noted the Special Representative’s comments on voluntary versus mandatory measures in addressing business and human-rights policy solutions. Corporate social responsibility began with a mandatory element. On the issue of extraterritoriality, she asked what instruments the Special Representative would be studying. In raising concerns about voluntary versus mandatory corporate social responsibility, could he offer examples of adequate assistance offered by Governments?
The delegate of Cameroon stressed the importance of the Special Representative’s mission and assured him of her delegation’s support. She congratulated him on a clear report and presentation. The Special Representative had stressed the importance of the social responsibility of corporate enterprises. What were the chances of success for corporate social responsibility in the absence of “a feeling of belonging” among local populations? Regarding voluntary and mandatory measures, she expressed pessimism, saying that there was a long way to go before populations, especially in developing countries, might be able to press home the importance of such behaviour. She asked him to expand on the dichotomy between voluntary and mandatory measures.
The representative of the European Commission, aligning with Sweden on behalf of the European Union, noted first that a European study on supply-chain issues would be forthcoming early next year. On the Special Representative’s report, he first asked about the “smart mix” of voluntary and mandatory measures. What were the next practical steps to involve stakeholders in a framework that involved both such approaches? On small- and medium-sized enterprises, how did the Special Representative view them in relation to his mandate and proposed framework? To what extent had he engaged with small- and medium-sized enterprises, and what had been their reaction?
The representative of India asked how receptive other stakeholders were to his framework. Did he foresee a progression from the framework to an internationally agreed convention? And what were some existing models for promoting corporate responsibility?
Responding to the representative of Sweden on how bilateral treaties could constrain a State’s ability to protect human rights, Mr. RUGGIE related the story of a case in South Africa, where two foreign investors from Italy and Luxembourg had claimed compensation because they believed provisions of the Black Economic Empowerment Act amounted to expropriation. An official policy review explained that the Government had not been fully apprised of all the possible consequences of bilateral investment treaties. The case demonstrated why Governments could not adequately discharge their human rights duties, if they segregated business and human rights into “a narrow conceptual and institutional box” and ignored the issue in other business-related policy domains. He said South Africa was currently conducting a review on its bilateral investment treaties.
He said when an export credit agency from industrialized countries provided assistance to investors seeking to open a mining operation or an oil installation in a conflict zone, in his view, that agency was obligated to conduct a higher level of due diligence than usual. As a participant to the international human rights regime, States should instruct companies to perform their due diligence in anticipation of various problems, and to make sure they had adequate policies to deal with them.
No country could recover from conflict by lowering human rights standards, he said. Sustainable development meant having to raise those standards.
On the question of extraterritoriality, he noted that countries that did not feel as powerful as corporations sometimes turned to others for assistance. But, they were often reluctant to have other countries intervene in the regulation of business operations in their territory. For businesses, extraterritoriality created an un-level playing field, with different rules for different places. Studies indicated that Government could do more to oversee the parent companies of subsidiaries that operated abroad, and parent companies should be made to exercise greater oversight and due diligence, especially in difficult environments like conflict zones.
He said that States were beginning to come to grips with those issues in the context of anti-terrorism and corruption, and that he would likely turn to examples from there for guidance.
In answer to the representative of Chile on the question of women directors and related issues, he said part of his mandate involved including a gender dimension into the discussion. Recently, he had been at a workshop on how to integrate gender into the three pillars of the mandate. In fact, he had just received reports from 19 law firms looking at rules for corporate governance as it related to promotion and respect for human rights.
To the representative of Malaysia, he said he considered the question of corporate responsibility as it related to respect for human rights, rather than protection of human rights. Respect for human rights referred to the non-infringement of others’ rights. He was looking for counterparts in the OECD, European Union and other bodies to promote that idea. Businesses seemed quite comfortable with, and understood the concept of, due diligence. They had ideas of ways they could carry it out. Various bodies were looking to the United Nations for guidance in that area, as an organ different from the World Trade Organization or World Bank, because the United Nations was often seen as the “home” of human rights issues. He hoped to produce those guiding principles by 2011, when his mandate was to end.
To the United States, he agreed on the need for a robust domestic legal framework. On assistance that Governments could provide on the ground, he said such assistance could be provided through embassies. Export credit agencies and investment insurance agencies could provide oversight. Governments could help companies develop due diligence procedures, and then ask for reports on how they were being operationalized on the ground.
Regarding whether those principles should be voluntary or mandatory, he said that type of question was an impediment to creative thinking on the issue, on both sides. Some believed corporations must be subject of a treaty or convention, forgetting that those treaties were themselves voluntary. On the other hand, the idea that pure volunteerism would resolve complex issues in a world of 80,000 multinational corporations and their hundreds of thousands of subsidiaries, not to mention millions of suppliers, would be most challenging. What was needed at the moment was to elicit the kinds of mandatory measures that were the most appropriate, to examine what lessons could be learned from failures or successes of volunteer initiatives, and so on.
To the European Commission’s question on next steps, he said he would continue with his process of consultations, including through a global online consultation on all aspects of the framework.
To a question on the responsibilities of small and medium enterprises, he stressed that all companies had responsibilities, regardless of their size. The principles should be the same for all companies, although the tools they used should differ, based on the size of company or the sector in which they operated. A 30-employee company should not adopt the same tools of due diligence of a 200,000-employee company operating around the world. In the area of domestic legislation, smaller firms often did not follow the same procedural requirements as bigger ones.
To the representative of India, he said the framework was well-received by all constituencies -- States, businesses, associations, individual corporations, and civil society. That support was well needed to build a strong foundation and to push it forward, which he appreciated. On the prospect of an international convention in the area of corporations and human rights, he said he had been asked the same question by the Human Rights Council. His reply to the Council was that drafting conventions was their job, not his. He would, however, be on hand to provide advice.
South Africa’s delegate asked for clarity on the Special Representative’s comments about the Black Empowerment Policy.
India’s representative asked for examples of good practices regarding national policy responses to corporate social responsibility of transnational corporations.
Responding, Mr. RUGGIE, said his example had noted that South Africa was being called into binding arbitration over the Black Economic Empowerment Act. There were reservations about the wide scope of investment treaties the Government had signed on to, as they put limits on the Government’s ability to take on its regulatory responsibilities, including the Black Economic Empowerment Act. Such instruments had to be drawn more tightly, so that Governments had the policy space to do what they needed to do.
To India’s question, he said he was just now collating a questionnaire asking for good practices vis-à-vis transnational corporations. The results had not been finalized. He was developing systematic evidence, which he would be happy to share, once it was in.
Next, the representative of Guatemala said her country would participate in brainstorming during a workshop and she wondered whether a date had been fixed for that.
Responding, Mr. RUGGIE said the invitation had been sent to ambassadors and the first workshop meeting would be in December.
Statement by Special Rapporteur on Independence of Judges
GABRIELA CARINA KNAUL DE ALBUQUERQUE E SILVA, Special Rapporteur on the Independence of Judges and Lawyers, said she was honoured to make her first presentation before the Committee, which was the largest and, thus, most democratic of all United Nations bodies dealing with human rights, social and humanitarian issues. Indeed, the Committee’s role was even more important today, in a world of poverty, conflict, terrorism and inequality, as well as widespread human rights violations in many areas.
As a judge in Brazil and the first woman to hold the position of Special Rapporteur, she hoped to draw upon those aspects of her experience in shaping her work. She believed in positive, constructive dialogue at the global level, and in practical steps at the national level, to realize human rights norms laid down by the United Nations.
Turning to her report, she explained that it presented an extensive analysis of safeguards to be established at domestic levels to ensure the independence of lawyers and the legal profession. As her predecessor had done, she encouraged the General Assembly to endorse the Basic Principles on the Role of Lawyers in a formal way, as they were essential to any fair judicial proceeding.
Having studied resolution 8/6 of the Human Rights Council’s eighth session, which renewed the Special Rapporteur’s mandate and defined its contemporary mission, she said various elements in it would guide her work, including its reference to the Universal Declaration, the International Covenant on Civil and Political Rights and the Vienna Declaration and Programme of Action.
She said that resolution also recalled the Basic Principles on the Independence of the Judiciary and expressed the conviction that an independent and impartial judiciary, an independent legal profession and integrity of the judicial system were essential prerequisites for protecting human rights. It also recognized the importance of bar associations, noted with concern the increasingly frequent attacks on the independence of judges and acknowledged the importance of cooperation between the Special Rapporteur and the Office of the United Nations High Commissioner for Human Rights.
She next reflected on elements of advisory services and technical cooperation to promote and protect the independence of judges and lawyers, saying that technical cooperation activities could extend beyond the Office of the High Commissioner to regional human rights bodies and international associations of judges and lawyers. While performing the essential parts of her mandate, she would especially emphasize cooperative efforts to produce a concise Manual on Human Rights for Judges, Prosecutors and Lawyers, which could contain summaries of key human rights provisions, among other things. She would write to specialized bodies working in such areas to help produce that manual.
Related to that, she said she would send a questionnaire to all Governments requesting concise information on the extent to which normative and jurisprudential materials on international human rights were available to judges and lawyers in local languages. She understood the challenges of underdevelopment and would take that into account during her work. She also would explore with Member States effective ways to implement those and other activities. Further, she would try to encourage periodic regional meetings with actors in the judicial system, which could involve training on international human rights norms and provide a chance to exchange ideas on their implementation.
In addition, as the Special Rapporteur’s mandate urged, she appealed to United Nations bodies, mandates and mechanisms, as well as regional organizations -- including the African Union, ASEAN, Caribbean Community (CARICOM) and the Council of Europe, among others -- to help disseminate a concise manual for use by judges, prosecutors and lawyers, and to convene periodic regional meetings.
The resolution establishing her mandate also urged Governments to cooperate with the Special Rapporteur in performing her tasks and to respond to communications transmitted to them without undue delay. It also called on Governments to seriously consider responding favourably to the Special Rapporteur’s requests to visit their countries. On that note, the Colombian Government had agreed to the Special Rapporteur’s first visit, which she would undertake in December. As her mandate also called on her to study questions of principle with a view to protecting -- and enhancing -- the independence of the judiciary, lawyers and court officials, she planned to devote a special report on those issues.
Most importantly, she said she was mandated to inquire into substantial allegations transmitted to her and to report on her conclusions. She was also mandated to identify and record attacks on the independence of the judiciary, lawyers and court officials and progress achieved in enhancing their independence. As such, she would be attentive to those parts of her mandate in the spirit of the resolution of the Council.
In closing, she pledged to be faithful to her mandate and encourage the General Assembly to endorse the Basic Principles on the Role of Lawyers, as recommended by her predecessor. She would pursue a combination of the thematic and country-specific approaches, and try to pursue a cooperative approach with States and other partners. Further, she would seek to identify building blocks of a structural approach towards her mandate and, finally, work towards compiling information on the independence of judges and lawyers which might advance the case for guaranteeing their independence worldwide.
The representative of Chile asked to hear about the advantages of having one professional association for each sector of the legal and judicial profession. There were multiple associations in Chile. She asked for the Special Rapporteur’s opinion on registration, and how it might restrict the independence of lawyers. Some countries required that lawyers pass re-registration exams, she noted. She added that she would have appreciated more precision on the concept of lawyers controlling admission to legal professions. In Chile, the legal profession oversaw the registration of new lawyers, with guidance from the Ministry of Justice. They had to pass a bar exam and appear before the Supreme Court.
Sweden’s representative, speaking on behalf of the European Union, asked about ways to guarantee the independence of judges using safeguards established by international law. She was concerned by attacks on key actors in the field, and supported recommendations to strengthen protection against the unlawful interference by authorities in their activities, which posed security problems, and of the importance of maintaining their free access to information. Did the Special Rapporteur have any best practice examples of legislation that took that concern into account? What role could the General Assembly play in the establishment of safeguards for the legal profession? Did she have any other country visits planned? She also asked for her view on technical assistance programmes to promote good governance for States undergoing transition, or in a crisis.
The representative of the United States said the freedom of expression and association of lawyers was a requirement of their work. One communication received by the previous Special Rapporteur was related to the harassment against lawyers, and so she welcomed the new Rapporteur’s commitment to give greater emphasis on protecting lawyers. She asked for comments on the provision of technical assistance in administrative justice for States undergoing democratic transition. Also, could she elaborate top priorities for the coming year?
The representative of Guinea Bissau commended her on her strong show of conviction to fulfil all her terms of reference. In view of the importance of the independence of judges and lawyers to the administration of justice, he was appreciative of the report of her predecessor. For justice to be administered fairly, States needed judges and lawyers to be independent, and who were not the subject of intimidation. He suggested that lawyers be informed on ways to conduct a fair trial, to further ensure public confidence in the justice system. The justice system must be accessible to the “man in the street”. He counted on her to act on her conviction, which had emerged from her experiences in a country that faced its own constraints.
The representative of Switzerland also asked for more information on justice in a period of transition, or in post-conflict situations where justice was jeopardized or undermined. Indeed, the United Nations gave pride of place to justice issues in such countries. The Human Rights Council resolution on justice in transition had referred to the national capacity to fight impunity. What were some challenges to national capacity-building in that area, and how could States respond to those challenges?
Brazil’s delegate said he appreciated that an effort was being made to achieve a balanced geographical distribution among mandate holders. He welcomed the Special Rapporteur’s proposed approach, which was imbued with spirit of dialogue and cooperation. He took note of her experience as a judge, observing that her predecessors had been lawyers. He asked how her experience as a judge would benefit her in the discharge of her functions.
The representative of New Zealand noted the Special Rapporteur’s recommendation that those in the legal profession be made to undergo a mandatory internship period. She asked about the duration and nature of such envisaged internships and what the benefits were?
India’s representative asked if the Special Rapporteur intended to include a gender perspective in fulfilling her mandate.
Responding first to the question on the gender dimension to her position, Ms. KNAUL DE ALBUQUERQUE E SILVA said her mandate urged her to apply a gender perspective in her work. There must be a “corresponding identity” between people and the judiciary, in order for people to have confidence in the administration of justice. She understood the gender dimension to be a very important part of her mandate and would look at the ways and means to address that issue.
As to her top priorities in the coming year, she said she had begun an action plan to elaborate a concise manual on human rights for judges and lawyers. She hoped to identify countries that wished to improve their judicial systems, starting with Colombia and South America. For next year, she would work on the concise manual and carry out regional periodic meetings around the world. The idea for the manual came from her predecessor’s report. It was a huge document and she hoped to summarize it in many languages. “I want human rights law to be accessible to judges and lawyers and I hope the manual will be a step towards achieving that accessibility,” she said.
Regarding her predecessor’s reports, she said that some countries had many professions to regulate the legal profession, which, at times, made it difficult to assess independence. There was a need for a law to protect lawyers and their activities. Lawyers should be able to develop their functions without fear from the Ministry of Justice.
As to how her experience could help her mandate, she responded that “our experience always helps us in life”. By way of example, she said she had worked in the National Council of Justice to develop measures for improving Brazil’s judicial system. That was a challenge, as Brazil was a big country with a big judicial system that included 92 tribunals and 17,000 judges. Through that work, she provided practical guidance to the judiciary -- experience that she believed would help her identify ways and means for carrying out her current functions.
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