Extremists Have Pushed Anti-immigration Agenda, but in Fact ‘We Are All Migrants’, Migrant Rights Are Human Rights, Says United Nations Expert in Third Committee
Extremists Have Pushed Anti-immigration Agenda, but in Fact ‘We Are All Migrants’, Migrant Rights Are Human Rights, Says United Nations Expert in Third Committee
|Department of Public Information • News and Media Division • New York|
Sixty-sixth General Assembly
27th & 28th Meetings (AM & PM)
Extremists Have Pushed Anti-immigration Agenda, but in Fact ‘We Are All Migrants’,
Migrant Rights Are Human Rights, Says United Nations Expert in Third Committee
Also Hears Experts on Freedom of Opinion, Housing, Judicial Independence;
Assembly President Stresses Committee’s Critical Role Promoting Human Rights
Although xenophobic discourse had elevated the anti-immigration agenda in countries around the world, migration remained a common human endeavour and migrants’ rights were human rights, a top United Nations expert on those rights told the Third Committee (Social, Humanitarian and Cultural) today.
“Migration is how we cope with environmental threats, with political oppression, but also with our desire to create a meaningful future for ourselves and our children,” the Special Rapporteur on the Human Rights of Migrants, François Crépeau, said, as the Committee wrapped up its first week devoted to the promotion and protection of human rights and also heard presentations from experts on the rights to adequate housing, freedom of expression, and the independence of judges.
Emphasizing that migration was in humankind’s DNA,Mr. Crépeau said the principles that “we are all migrants” and “that migration concerns all States” would guide his mandate, which he assumed on 1 August 2011. While highlighting increasing international cooperation on migration issues, he argued that applying common international legal standards helped create a level playing field for migrants, employers and States.
Nevertheless, extremist parties in numerous countries were setting the tone and vocabulary of the political debate on migration issues, he said. States were increasingly using the language of crime when they spoke of irregular migration, with some resorting to its criminalization. But, even as some States criminalized irregular migration, they had indicated no intent to provide those migrants all the guarantees traditionally embedded in criminal law.
“Administrative decisions relating to migrants may result today in long detention periods, in the absence of a clear legal status, or in a return to death or torture,” he said. “In sum, we often apply to foreigners legal standards that we would abhor if they were applied to our sons and daughters in any circumstances.”
In that vein, he suggested that expulsion must conform to the human rights framework, while detention should only be used as a last resort and applied for the same reasons citizens were preventatively detained – such as when they were considered a flight risk and posed dangers to themselves or others. He urged the exploration of alternatives to detention.
Abdelhamid El Jamri, Chair of the monitoring Committee of the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, echoedconcerns about a hardening of migration policy in some countries and an erosion of migrant rights exhibited by the greater numbers of detentions.
Recalling the number of migrants fleeing the events in North Africa this year, he said they had faced a range of violations, from mass evictions to dangerous interceptions at sea and trafficking in persons. He noted that the Committee had adopted, during the April session, a declaration calling on the authorities in Libya to comply with their obligations to migrant workers and their family members. He stressed that the Committee continued to closely follow the situation there.
In the afternoon, the Committee heard an address from General Assembly President Nassir Abdulaziz Al‑Nasser ( Qatar), who said the issues before the Committee this session were particularly pertinent, given the current remarkable moment in history. “We are witnessing emerging democracies calling for liberty, dignity and social justice,” he said, stressing that its topics ranging from social development to women’s advancement and the promotion and protection of children’s rights “are fundamental starting points for realizing the potential of democratic nations”.
Also today, the Committee heard from Raquel Rolnik, the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living; Frank La Rue, the Special Rapporteur on the rights to freedom of opinion and expression, and Gabriela Knaul, the Special Rapporteur on the independence of judges and lawyers. Each held a question and answer session with delegates after delivering their statements.
During today’s meeting, the Committee also heard a comment from Sri Lanka’s representative in regard to references to the country yesterday by Liechtenstein and Christof Heyns, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions.
In other business, the Committee heard the introduction of four draft resolutions on women’s advancement and the promotion and protection of the rights of children.
The Committee will reconvene at 10 a.m. Monday, 24 October, to continue its discussion on human rights with presentations by the Special Rapporteurs on trafficking in persons, on the situation of human rights defenders and on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
The Third Committee (Social, Humanitarian and Cultural) met today to continue its discussion on the promotion and protection of human rights.
It had before it the report of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (document A/66/48). The report contains information including: organizational matters such as the Committee’s meetings and sessions, membership and attendance, commemoration of the twentieth anniversary of the Convention, presentation and adoption of reports, cooperation with bodies concerned, and reports by States parties under article 73 of the International Convention on the Rights of All Migrant Workers and Members of Their Families. Within the consideration of reports by States parties, in accordance with article 74 of the Convention, the document offers numerous suggestions and recommendations.
Also before the Committee was a note by the Secretariat on the activities of the Special Rapporteur on the human rights of migrants (document A/66/264). In view of the change of mandate holder, the note provides an overview of the activities carried out by the outgoing Special Rapporteur, Jorge Bustamante, during his term from August 2005 to July 2011. The new mandate holder, François Crépeau, assumed his functions on 1 August 2011. He will present an oral report to the Assembly during its sixty-sixth session, while his first report to the Human Rights Council will be presented at its twentieth session in June 2012.
Also before the Committee was the note by the Secretary-General transmitting the report of the Special Rapporteur on the right to adequate housing (document A/66/270), which focuses on the realization of the right to adequate housing in post-disaster settings. The report assesses human rights guidelines relevant to a disaster response approach based on the right to adequate housing, discussing some limitations. It elaborates on some challenges related to protection and realization of the right: inattention to or discrimination against vulnerable and disadvantaged groups; overemphasis on individual property ownership and the associated difficulty to recognize and address the multiplicity of tenure forms equally in restitution and recovery programmes; the risks of approaching post-disaster reconstruction predominantly as a business or development opportunity that benefits only a few; and limitations in existing frameworks for reconstruction and recovery.
The report concludes by outlining the fundamentals of an approach to disaster response that deliberately and comprehensively integrates the right to adequate housing. It says that disaster response should not replace development efforts, but provide an occasion to redress inequalities and contribute to efforts to progressively realize the right to adequate housing for all, notably by improving tenure security.
Also before the Committee was a note by the Secretary-General transmitting the report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (document A/66/290). Submitted pursuant to Human Rights Council resolutions 7/36 and 16/4, the report expands upon the last report submitted to the Council by the Special Rapporteur on key trends and challenges to the right of all individuals to seek, receive and impart information and ideas of all kinds through the Internet (A/HRC/17/27). It addresses the issue through two equally important dimensions of Internet access: access to online content and access to an Internet connection.
The Special Rapporteur outlines the types of expression that States are exceptionally required to prohibit under international law. Given the ongoing debate regarding regulation of content on the Internet, he discusses impermissible restrictions. The report also addresses the importance of digital literacy and training in information and communications technology skills for individuals to enable them to access online content in an effective and meaningful manner.
Although access to an Internet connection is not yet recognized as a human right, the report focuses on the positive obligation of States to facilitate the enjoyment of the right to freedom of expression via the Internet, and outlines both challenges and positive initiatives to make the Internet available, accessible and affordable to all segments of society. The report concludes with recommendations to ensure full access to online content that is free of censorship and access to an Internet connection, particularly for marginalized and disadvantaged groups.
Also before the Committee was a note by the Secretary-General transmitting the interim report of the Special Rapporteur on the independence of judges and lawyers (document A/66/289). Submitted in accordance with Human Rights Council resolution 17/2, the report addresses the need to consider and integrate a gender perspective in the criminal justice system as a fundamental step towards allowing equal access to justice for women and men, and in respect of the role to be played by judges and lawyers.
Although the meaning, scope and impact of gender encompasses more than women’s rights, the report focuses on the interlinkages of the independence and impartiality of judges, prosecutors and lawyers and the criminal justice system when dealing with women as victims, witnesses and offenders. The Special Rapporteur argues that more should be done to properly understand and challenge all of the effects gender-based stereotypes, prejudices and discrimination have on both women and men in terms of their access to and engagement in the justice system as a whole, and the criminal justice system in particular.
According to the report, the application of a human rights-based approach is the best instrument to guide States and other international and national actors in this effort. It would allow the development of laws, rules of procedures and jurisprudence that respect internationally and nationally recognized legal principles of equality between women and men and non-discrimination on the grounds of gender. The Special Rapporteur highlights the development of training and continuing legal education programmes, particularly in international human rights law, as the cornerstone for developing the judiciary’s capacity to challenge gender stereotypes within and outside the criminal judicial system.
Making a comment in the context of one of the Committee’s question and answer sessions held yesterday and referring to references made yesterday by Liechtenstein and Christof Heyns, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Sri Lanka’s representative said it was disappointing that some persons charged with the grave responsibility of reporting to the United Nations on human rights and humanitarian issues tended to use throwaway lines and unsubstantiated information about Member States. The bombings and killings of civilians were over today because the Government’s security forces defeated the terrorists. The Government had subsequently engaged in reconstruction, and rehabilitation and reintegration of former child soldiers.
She said those sympathizing with the terrorists were now waging a massive propaganda campaign to turn the tables and find the Government guilty of humanitarian violations. A video aired on various television channels had been shown to be largely fabricated. While no war was a pleasant exercise, or a “picnic in the schoolyard”, the Government had taken great care to avoid civilian casualties. There was no substantiated evidence of large numbers of civilian deaths in the conflict’s final stages. When a United Nations document alleging 7,000 deaths was leaked, Under-Secretary-General John Holmes publicly disowned that figure. A Government commission was examining all aspects of the conflict, including questions of accountability, and its report was due next week. It was disappointing that those aspects were ignored by Mr. Heyns. The Sri Lankan Government rejected his ill-informed comments in the strongest terms.
Statement by Chair of Committee on Protection of Migrant Workers
ABDELHAMID EL JAMRI, Chair of the monitoring Committee of the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, said the Convention was one of the nine essential United Nations instruments relating to human rights. It came into force on 1 July 2003 and had been ratified by 45 States. Recalling the number of migrants fleeing the events in North Africa this year, he said they had faced a range of violations, from mass evictions to dangerous interceptions at sea and trafficking in persons. Alarmed at the events in Libya, the Committee adopted, during its fourteenth session in April, a declaration on the situation there. That declaration called on the authorities in Libya to comply with their obligations to migrant workers and their family members. The Committee continued to closely follow the situation there.
He said the world today had over 200 million migrants and their protection enhanced the impact of development and raised productivity. Standards must be adopted to protect the rights of all migrant workers, including those in irregular situations, and the Convention provided the basis for a genuine legislative framework. It was also useful for the development of national migration policies and international regulations. Further, the Convention was the only universal instrument that especially protected the rights of migrant workers and their families, and the Committee regretted its limited number of States parties. In that context, he particularly noted recent calls by the High Commissioner for Human Rights to have the 15 countries that had signed the Convention to ratify it.
He said he had published a shared statement with the Special Rapporteur on the human rights of migrants on 18 December 2010 aimed at the further promotion and protection of migrant workers’ rights. A number of activities and events had commemorated the twentieth anniversary of the Convention’s adoption last year. He had also represented the Committee at a meeting on migration and development hosted by the Mexican Government, from 8 to 11 November 2010. He had also attended other meetings in South America and Europe and participated in civil society events.
In its analysis of State reports, the Committee continued to help States identify deficits in their protection of migrant workers and to find the best possible solutions to ending those deficits. The Committee also identified shared concerns, such as the incompatibility of some national laws with the Convention. It also emphasized the need to gather data and extend training in human rights and on the Convention to all civil servants working with migrants. Also important was ensuring that migrants had access to all resources to combat human trafficking. The Committee welcomed the adoption of its General Comment No. 1 on Migrant Domestic Workers. It also welcomed the adoption of International Labour Organization (ILO) Convention 189 on the situation of domestic workers. In that regard, he noted the complementarity between the Convention and ILO Convention No. 189.
Continuing, he underscored the Committee’s concern about a hardening of policy in some countries and an erosion of migrant rights exhibited by the greater numbers of detentions. He noted its consideration of initial reports from 18 States, as well as the second periodic reports of two States parties. However, numerous States parties were late in submitting their initial report and, during its fifteenth meeting in Geneva last year, the Committee considered how to address the implementation of the Convention in the absence of such reports. It would make a final decision on that method, which was used by other treaty bodies, next year.
The Committee had also adopted a new procedure for periodic reports to facilitate the reporting burden on States, particularly those with limited resources. The new procedure was, he stressed, optional. Finally, he noted that a fixed schedule for the submission of States reports had been agreed. It aimed at the consideration of nine reports each year, but the Committee would need additional meeting time in excess of its three weeks per year to meet its heavier workload.
Question and Answer Session
Libya’s delegate said the system under his country’s previous leader, Muammar al-Qadhafi, had harmed migrant workers by forcing them to carry weapons. He would like to emphasize that, if there were cases of violations against the rights of migrant workers, it represented individual behaviour and could not be considered a consistent policy by the Transitional council. The new Libya would deliver on all its promises, in accordance with human rights conventions and instruments.
Algeria’s delegate noted that a limited number of countries had acceded to the Convention, and many who had not ratified it received migrant workers. He asked what activities the Committee was undertaking to bring widespread attention to, and ratification for, the Convention.
Brazil’s delegate asked if the Committee intended to look into the decisions taken by federal bodies in the United States.
Responding, Mr. EL JAMRI said he welcomed the evolution of the situation in Libya, and it would no doubt have a positive effect on the situation of migrants. He had received notification of migrant workers’ rights in Libya, with reports of their difficulties. There were neighbouring countries with similar problems, so he appealed for them to keep their borders open with respect to the conflict in Libya, and asked the European Union countries to receive migrants who were crossing the Mediterranean. In the next session, he would be discussing developments in Libya, he said.
On the question of the promotion of the Convention, he said it involved several stages and a lot of work was ongoing. When it came into force, promotion was the focus of part of its activities, and it set up a platform of non-governmental organizations working on migrants’ rights. In most countries, ratification efforts were ongoing, and his office was assisting wherever it could. Following dialogue over several years with trade unions, his office had established a permanent international trade union platform that would work with the Committee on migrant workers rights. Previously, migrant workers had to try to defend themselves, particularly those in irregular situations. Today, he said, there were more economic, financial and technical arguments used to promote ratification of the Convention. Now the only argument against ratification was political – all other arguments had been countered. Everyone needed to be encouraged to understand that political determination was needed for broader ratification, he said.
On Brazil’s question, he said he was aware of the difficulties with its neighbour to the north. The United States had not ratified the Convention, so he could not make recommendations in that regard. But, a lot of situations that had arisen were discussed internationally. The Convention had been operational for eight years, so it could enter a new phase, he said. Sometimes migrants in irregular situations had acquired rights in their host country. Frequently, migrants entered a host with a work visa and later were in an irregular situation. There needed to be solutions to situations, such as when a woman entered a country for a marriage and then suffered violence, but felt that if she left her husband, she would be deported from the host country. The question of retirement pensions could also be addressed. The Committee was looking at new angles of approach for migrant workers in those and other irregular situations, he said.
Statement by the Special Rapporteur on Human Rights of Migrants
FRANÇOIS CRÉPEAU, Special Rapporteur on the Human Rights of Migrants, said he would share some preliminary thoughts on principles that would guide his mandate, which he had recently assumed. The first principle, he said, was that “we are all” migrants and that migration concerned all States. “How many of us live today in the city of birth of our four grandparents? Not many,” he said. “Migration is in the DNA of mankind. Migration is how we cope with environmental threats, with political oppression, but also with our desire to create a meaningful future for ourselves and our children.”
Migration was the normal state of the human condition, and migrants’ rights were human rights. Migrants shared with citizens all human rights, except two: the right to vote and be elected, and the right to enter and stay in a country. Expulsion must conform to the human rights framework, as it applied to all, while detention should be a last resort, only applied for the same reasons citizens were preventatively detained – risk of flight and danger to security of oneself or others – so alternatives to detention should be explored, he said.
He stressed irregular migration was not a crime, even though States had increasingly used the language of crime when they spoke of irregular migration, with some resorting to its criminalization. “Crossing borders may be in violation of the law, but it is an abstract violation of the law, since moving from one country to another does not per se endanger any person, nor affect any property,” he said. While some States had criminalized irregular migration in their discourse, they had indicated no intent to provide those migrants all the guarantees traditionally embedded in criminal law. “Administrative decisions relating to migrants may result today in long detention periods, in the absence of a clear legal status, or in a return to death or torture,” he said. “In sum, we often apply to foreigners legal standards that we would abhor if they were applied to our sons and daughters in any circumstances.”
Xenophobic discourse had gone mainstream during the past decade and was gaining increasing social acceptance - extremist parties in numerous countries were striving on an anti-immigration agenda, setting the tone and the vocabulary of the political debate on migration issues. There had been no push-back, or credible political counter-discourse, because there was very little mobilization in favour of migrants, particularly irregular ones. “They mostly fear being returned to the country of origin and mobilizing would call them to the attention of the authorities,” he said. But, while common rhetoric was that irregular migrants “steal jobs”, it was forgotten that very often they would not be in host countries if there was no market for their skills. Many economies were competitive and booming today due to the contribution of migrants – a reality that should be recognized in political discourse at all levels of government.
The work of international or regional organizations on migration was also crucial to advancing their rights and protection, he said. Efforts by the Global Migration Group, International Labour Organization, Office of the United Nations High Commissioner for Human Rights (OHCHR), International Organization for Migration (IOM) and the Global Forum on Migration and Development had developed tools to better advocate migration issues. International cooperation on migration issues was on the rise - applying common international legal standards helped create a level playing field for migrants, employers and States. He looked forward to strengthening collaboration with other special procedures and with United Nations treaty bodies, especially in regard to implementation of the Convention on Migrant Workers, and engaging in meaningful dialogue with States that had not yet ratified that core international human rights treaty.
“Changing the often inflammatory mainstream political discourse on migration is a challenge for which we have yet to find a solution,” he said in closing. “We need a balanced discourse on migration. A discourse that recognizes the cultural importance of the circulating talents and ideas. A discourse that states the challenges, but also recalls the need for migrant workers. Because migration happens and we have to live together.”
Question and Answer Session
Indonesia’s representative said his Government supported the Special Rapporteur’s conclusion that migration could be an essential component of development. At the same time, Indonesia was concerned with growing violations of migrant workers’ rights and believed it was important to increase joint efforts to encourage countries of origin, transit and destination to ensure protections for migrant workers. His delegation wondered what could be done to further ratifications of the Convention. Also, how would the Special Rapporteur increase the focus on the rights of domestic migrant workers?
Brazil’s delegate asked how the Special Rapporteur viewed racial profiling, particularly in developed countries by police and law enforcement officials, as a barrier to the full enjoyment of migrant workers’ rights.
A representative of the International Organization for Migration said migration was not bad or good, per se, but depended on the situation. Where it was voluntary and proceeded through legal channels - and was, therefore, protected - it could be a great benefit to societies of both destination and origin. Where it was forced, owing to human rights abuse, environmental degradation or economic pressures, it was less successful. More legal channels should be created for migration, to ensure that rights were protected throughout the process. Stressing that migrant rights were human rights, she expressed regret over the general climate of xenophobia and incidents of racism. This year, IOM’s World Migration Report, which would be released the first week of December, would focus on those issues. She asked if there were particular ways IOM might help either the work of the Committee or the Special Rapporteur.
The delegation of the European Union said that, to combat illegal human trafficking, the bloc had negotiated more than a dozen agreements that provided for the return of migrants to their countries of origin. Bilateral return agreements also existed. Were these tools effective against illegal immigration? Could the United Nations enhance its role in reintegrating the return of those trafficked? He requested comments on internal measures that could help when migrants arrived. Underlining the plight of child migrants, he asked how the phenomenon of unaccompanied minors crossing borders illegally could be reduced in a way that protected their rights.
Responding, Mr. CRÉPEAU pointed out that migrants did not comprise the whole of all domestic workers. In addition, he noted that the vulnerability of domestic workers stemmed in many ways from the fact that they lived in their employers’ home. He planned to build on the work to protect the rights of that vulnerable group in the context of migration.
He suggested that the issue of racial profiling may not have been as visible in the past, because of other, more high-profile concerns with racism. Racial profiling did not apply to migrants only, but also to racial and ethnic minorities. It was a difficult issue; indeed, it must be recognized that law enforcement authorities had limited means of identification. Among other things, that meant that training on the indicators and consequences of racial profiling was extremely important.
He planned to explore with IOM how to coordinate work on those issues. However, the creation of more legal channels went against the grain in many countries, because of high levels of xenophobia, some of which stemmed from the unfolding economic crisis. In that context, it was critical to find the means to address the flow of migrants, who would come anyway. There were means for circular migration and temporary and repetitive work contracts, for example, and those ideas could be discussed with States that faced specific migration flows, but they did not know how to manage them.
He said readmission arrangements provided the means to manage the return of illegal migrants. Those arrangements were not, in themselves, bad and were an exercise of territorial sovereignty. But, it was critical to ensure that their implementation was in line with the human rights framework, since it was often lacking in that area. In that context, he pointed to examples of long-term administrative detention, as well as airport annexes where whole families were often held, as they waited for return. While it was legitimate to return irregular migrants, it was illegitimate to do so under conditions that offended their dignity. He further noted that work in those areas was very difficult, because Government practices and policies were somewhat shrouded in secrecy. However, ways must be found to ensure the process was legitimate legally, politically and socially.
It was also critical, he said, to ensure that if people were returned, they did not come back the next week, because they had to feed their families. The root causes for migration had to be addressed. That also applied to the return of traffickers, who also lived in a circular world. Noting that the European Union had been a pioneer in welcoming asylum seekers, he said the world had to work together to examine what should be included in a “welcome package” for migrants that respected their dignity.
He stressed that the issue of child migrants was extremely difficult and, unless the reasons why those minors were travelling could be identified, it could not be fully addressed or reduced. The history of migration was filled with examples of families and communities sending their young ones far away to find something better. That was, indeed, the history of North America. He further noted the existence of a human rights framework governing the treatment of that particular group.
Calling attention to the criminalization of migration, Mexico’s delegate said migration control had had an effect on the enjoyment of human rights by migrants. Considering the rights of migrants in formulating migration policy was critical. In 2010, major reforms had been introduced in Mexico. Noting his predecessor’s work on political participation and the civil rights of migrants, she asked if he planned to work in the short term on that. Also, was migration in the context of climate change part of his work plan?
Switzerland’s representative expressed support for a closer analysis of migration in the context of climate change. Noting one recent study, he said legislative shortcomings seriously jeopardized the protection of refugees due to climate change. Would that mean they should be considered migrants?
In response, Mr. CRÉPEAU highlighted Mexico’s concern with criminalizing migration in rhetoric and discourse at the national and sub-State level. Migrants were local citizens that dealt with local employers and municipal authorities. Thus, work must be done at that level to change the discourse and attitudes. The holistic approach must take all levels of Government into account. In terms of political participation and the civil rights of migrants, he reiterated that migrants typically did not speak out or complain. They feared being identified and being sent back. Therefore, the issue of exercising rights was very difficult for many categories of migrants. Ways must be found to secure migrants’ status by limiting the capacity of employers to end their contract at will, thereby launching a deportation process. Indeed, migrants must feel comfortable to exercise their rights.
He said the issue of climate change was not an easy one, although it was a proven fact and would have effects over decades. The consequences on migration remained to be seen, although migration due to climate change was not new. With climate change speeding up, however, it might also increase as the number of people in a vulnerable situation increased. The status of refugees did not, a priori, apply to victims of climate change. However, it did apply to victims of earthquakes, eruptions and other natural disasters. If States took discriminatory action, the victims’ rights might be violated. Thus, it was useful to investigate migratory flows owing to climate change.
But, should a status of “climatic migrant” be created? Was an international convention needed? He didn’t know. Recent reports shed light on the terms of the debate, but the discussion must move further before decisions were made. In that context, the world community was looking at a time period of 30 to 40 years, he said.
Special Rapporteur on adequate housing
RAQUEL ROLNIK, Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in that context, noted that improving disaster prevention and response was a priority issue for the General Assembly’s current session and touched on the theme of her most recent report, which considered the realization of the right to adequate housing in post-conflict and post-disaster situations. As the report noted, disaster response efforts had, with notable exceptions, taken a narrow view of what constituted the right to adequate housing. Sometimes, reconstruction and recovery efforts had had a detrimental impact on victims, particularly in the context of that right.
That was not surprising since little guidance and practice was available for disaster response practitioners to address all aspects of the right to adequate housing, she said. Indeed, much of the available guidance focused on protecting internally displaced persons, building on the United Nations Guiding Principles on internally displaced persons and elaborating on their application to disasters. The Operational Guidelines on the Protection of Persons in Situations of Natural Disasters of the Inter-Agency Standing Committee expanding the scope of application to all persons affected by disasters, including but not limited to internally displaced persons, was particularly relevant. While her report discussed those and other standards applicable in disasters, including the Principles on Housing and Property Restitution for Refugees and Displaced Persons, the need for more specific and comprehensive guidelines was clear.
Continuing, she said that while vulnerability was widely recognized as an important element in disaster risk reduction and management, the impact of discriminatory actions or omissions was less obvious. Relief and reconstruction efforts sometimes unwittingly excluded or marginalized groups. Thus, looking at a disaster through a discriminatory lens offered real insight into possible failings in prevention and response. It also helped Governments and aid organizations to target their programmes to address vulnerability and inequalities by prioritizing reconstruction and allocating land for those most in need.
She called attention to the situation of “informal settlers”, which referred to those who were not individual owners of formally registered property. Treating people differently because their tenure ties to land or housing were based on having an official property title was problematic from a right-to-adequate-housing perspective. All those who had ties to the land or house where they lived before a disaster should be recognized as rights-holders in a tenure-security framework. International agencies were reluctant to invest in places of return and relocation where land tenure was unclear or complex, and where legal and customary arrangements were diverse. Reconstruction in urban areas was also challenging, given the complicated political economy of land that applied. That was one of the issues delaying reconstruction and return in Haiti.
In this vein, she highlighted the report’s discussion of policy guidance and mechanisms to ensure restitution of housing, land or property for displaced persons and refugees. Of particular interest was the use of participatory mechanisms – such as community mapping or enumeration – to assess the state of pre-disaster occupancy and tenure rights. Those processes offered promising and flexible alternatives for more formal or longer-term property restitution efforts. Notwithstanding the need to address the full spectrum of ownership/tenure and land-reform issues, assessing pre-disaster tenure rights remained essential. Governments and aid agencies should pay attention to ensuring minimum tenure security for everyone.
Land grabbing and eviction posed particular risks to the most marginalized in post-disaster situations, she said. The “clean slate” of the post-disaster environment had massive human rights implications, with the “optimal use of land” principle operating on a market, rather than a development, valuation. But even where public security and safety concerns were legitimate and compelling, decisions over land use or housing restrictions must still be subject to human rights standards. They should also be balanced with the serious social and economic costs incurred by displacement and resettlement.
She said a final challenge in realizing the right to adequate housing in post-disaster situations was posed by addressing it merely as a technical issue focused exclusively on physical questions. Housing must be seen as a social asset. In that context, durable solutions required rebuilding neighbourhoods and communities. From a human rights perspective, investments in upgrading settlements characterized by grossly inadequate living conditions was an indispensable part of disaster response. Further, the concept of “build back better” as addressing inadequate living conditions and redressing the worst inequalities had to apply, from the start, to transitional housing, which was not always transitional. Among other things, it also highlighted persistent problems between emergency response and long-term recovery efforts. She encouraged Governments, donors and aid agencies to plan for a durable solution at the earliest possible time and ensure a continuum of aid between relief and recovery.
The report’s section on General and Operational Principles offered further guidance on a disaster response based fully on the right to adequate housing, she said. Among them, she called for mechanisms to support faster-track determinations of tenure rights; legal and practical measures to support all those who were not individual owners of formally registered property; territorial planning and land-use instruments and tools to provide the technical and legal foundation for return and reconstruction programmes; and access to use and control over land in situations of natural disasters. “Putting the right to adequate housing at the core of reconstruction and recovery efforts is not only an obligation, but also an opportunity,” she concluded. “Human rights do not stop when a disaster strikes – to the contrary, it is then that they matter most.”
Question and Answer Session
Chile’s delegate thanked the Special Rapporteur for her report, agreeing that each case of reconstruction was different, but there were certain points that should serve as a guide. One was that ongoing dialogue with affected populations needed to be maintained. Disasters were part and parcel of Chile’s past, present, and probably, its future. The Government was doing all it could to study the rights to adequate housing for those affected by disasters, and had focused on the rights of families to live in places they had lived before the earthquake last year, even if they did not formally own the place. The State had always assumed 100 per cent of the cost of reconstruction, working in a transparent manner with companies. He thanked the Special Rapporteur for her report on the earthquake of 2010, but thought it needed to be filled in with more reliable information, and welcomed the Special Rapporteur’s invitation for further dialogue.
Norway’s delegate noted children in particular were vulnerable to abuse and attacks when their homes were demolished, and asked what could be done so their needs were not neglected. She also noted the right to housing had been under increasing review, creating a body of housing rights jurisprudence, and asked if the Special Rapporteur had any interesting examples of housing rights being enforced. She also asked what role local authorities could be given after a disaster.
Brazil’s delegate commended the work of the Special Rapporteur, and said his country had undergone a construction boom in past years due to increased economic activity. Brazil would also host large events in upcoming years, demanding construction of many sites, and had created a working group for the protection of human rights, so that no abuses occurred to populations in that process.
Malaysia’s delegate said his country had launched a programme to promote greater home ownership by providing affordable homes, particularly in urban and suburban areas where demand for middle-cost homes was high. The programme was developed for middle-income families that could not afford high-cost homes, but were not eligible for low-cost housing, providing them opportunities for a brighter future. Another entity provided housing for less fortunate families by subsidizing reconstruction of dilapidated housing, spending more than $500 million over the past five years to provide economic justice for the people.
Algeria’s delegate said the Special Rapporteur had kindly replied to an invitation by his country, visiting last July. Awaiting her report, the delegation had been very interested to note her preliminary conclusions. It assured her of its determination to continue constructive dialogue to follow up on recommendations to improve the housing policy in the country. She would have noted Algeria had an ambitious programme to build 12 million units for those who did not have sufficient resources. A lot had been done, but many challenges remained. The national housing policy in the medium- and long-term took into account the social, cultural and environmental conditions. He asked the Special Rapporteur if she was in favour of guaranteeing services in slums that existed around cities, even though it perpetuated scourges such as unsanitary conditions and crime in those areas.
Responding, Ms. ROLNIK said it was very different to respond to a disaster in a city, or particular part of a country, as opposed to an entire country, as Chile had done when it was affected by the 2010 earthquake. That called for strategies that had to deal with very different situations in different regions, with different local capacities. She hoped it would be possible to accept Chile’s invitation to collaborate and work together.
On the role of local authorities and parties on reconstruction, she said they were the ones who would be in charge. At the end, they were the ones at the forefront of the relief during disasters, and that must be understood. Cities, local governments and local politics were unequal, so it was very likely that those voices would be the ones heard from to begin with; thus mechanisms were needed so the most vulnerable had a say in reconstruction.
Some housing policies that Algeria, Malaysia and Brazil had undertaken used important public funds to launch housing projects and that was important. On the issue of upgrading existing settlements or building new ones, she said it was not a black or white issue – both were needed. Sometimes upgrading existing communities could be an effective way to work with limited funds, but sometimes the community was too vulnerable and resettlement was a good idea. But, resettlement should always respect human rights. She commended Brazil’s effort to establish a working group to supervise human rights in housing construction, because she had received many complaints from communities in the run-up to the World Cup.
Indonesia’s delegate asked which issue would be the most important in realizing the right to adequate housing in disaster management.
Germany’s delegate asked the Special Rapporteur to elaborate on her recent experiences with the issue of tenure rights. Noting the report put emphasis on the rights of non-formal owners with non-secure tenure, the delegate asked her if she could elaborate on recent experiences on this issue. The delegate also asked her to identify issues surrounding forced evictions outside disaster recovery.
Switzerland’s delegate asked how rights to housing of those who crossed borders after a disaster could be better addressed, and asked what could be done to respond to the needs of displaced persons and their host communities, since there could be tension between both groups.
The European Union’s delegation asked the Special Rapporteur if she could further elaborate how interpretation of the 2005 Principles on Housing and Property Restitution for Refugees and Displaced Persons could have an impact on the tendency in which vulnerable groups were disproportionately affected by natural disasters.
The International Organization for Migration’s representative welcomed the focus on disaster relief and recovery and thanked the Special Rapporteur, sharing her concerns about land tenure in Haiti in particular, which impeded the move to long-term sustainable housing there.
Responding, Ms. ROLNIK said the issue of tenure was the cornerstone to dealing with the right to adequate housing in the context of reconstruction and relief, as well as most of the situations she dealt with, including forced evictions. There were complex issues related to evictions and expropriations; legal frameworks already provided a base to protect human rights when persons had to be removed from the place they lived, but in complex situations, where many lived without registered titles, it was ambiguous. People lived in informal settlements occupying land that was not their property, because there was no available location in the formal market that was affordable or possible for them. That was an exclusionary model of urban development, so the poorest had to build their own habitat in areas subjected to risks.
On the issue of relief and reconstruction, Haiti’s example was a very extreme example of a widespread issue. People in Haiti lived in ambiguous situations with respect to tenure rights, and camp conditions were often better than those in their neighbourhoods, offering health care, food distribution and some opportunities to work. Camps became better than some regional neighbourhoods and communities. The response should be to upgrade neighbourhoods, preparing them for people to return, while also ameliorating progressively the situation of people there.
Sometimes there was conflict between existing communities; sometimes discrimination and inequality were inadvertently promoted between affected and non-affected peoples. Humanitarian relief should re-think the scope of action in relief and recovery, including the framework of the right to adequate housing, she said. There were opportunities to invest in existing neighbourhoods, but it was important for Governments to end the ambiguity of informal settlements, declaring which ones could continue being there and be upgraded into normal neighbourhoods, and which ones should be removed for the safety of the people who lived there. A legal basis for reconstruction to occur afterwards was also needed, she said.
Introduction of Draft Resolutions
In the afternoon, the Committee heard the introduction of several draft texts on the advancement of women and the promotion and protection of the rights of children.
The representative of the Philippines introduced the draft resolution on violence against women migrant workers (document A/C.3/66/L.18). She said migration could create opportunities and economic independence for migrant women, but it also had its attendant risk, as they were vulnerable and subjected to harsh living and working conditions. Violence against women migrant workers was a serious issue that needed to be addressed, and despite growing awareness of the risks they faced, serious gaps remained and much remained to be done.
The representative of the United States then introduced the draft resolution on women and political participation (document A/C.3/66/L.20). She noted the need for proactive measures to ensure women participated in political processes on equal footing with men had become increasingly evident, particularly in countries in transition. Women’s involvement bolstered the economic prosperity of nations, but discriminatory laws and practices persisted to mute their participation – women still often faced exclusion from key political negotiations.
The draft resolution stressed the importance of women’s political participation in all contexts and expressed concern about their participation on an equal basis with men. Active and equal participation of women was essential for sustainable development and democracy. It called on all States to end discriminatory laws and practices and promote the participation of women. It called on States in political transition to allow women to participate on an equal basis with men, and urged specific actions to remove barriers to gender balance. The resolution spoke to women, and on behalf of women, in all parts of the world, she said.
Sweden’s representative, on behalf of Nordic countries, then introduced the draft resolution on the Convention on the Elimination of All Forms of Discrimination against Women (document A/C.3/66/L.21). This marked the thirtieth anniversary of the Convention, and the Nordic countries had always supported this resolution. It was fair to say that the Convention had been successful, as only six States had not ratified it. She urged those remaining States to ratify and adopt the Convention and hoped it had continued support from Members going forward.
Finally, Thailand’s representative introduced the draft resolution on Strengthening of the Coordination of the United Nations System on Child Protection (document A/C.3/66/L.22). He stressed that child protection must be a high priority in each country and all must continue to strive to improve their protection systems. Many important challenges persisted, and further collaboration, coherence and coordination would in the long run enhance opportunities for constructive dialogue between the United Nations system and Member States for strengthening protection systems. The resolution was not meant to delve into substantive matters, he said, but rather to promote positive system improvement and constructive dialogue.
Special Rapporteur on the Right to Freedom of Opinion and Expression
FRANK LA RUE, Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, said his annual report focused on the exercise of that right through the Internet, addressing the issue through two equally important dimensions of access: to online content and to connection. Its main recommendation to all States was to maintain the free flow of information and ideas on the Internet and to ensure the Internet was made widely available, accessible and affordable to all.
He said that by enabling people to access information from diverse sources and facilitate an instant exchange of information relatively inexpensively, the Internet had become one of the most powerful tools to enhance knowledge, expose wrongdoing and amplify the collective demand for accountability and justice. It, thus, continued to play a key role in mobilizing peaceful and democratic movements taking place around the world.
“At the same time, I am deeply concerned that the potential of the Internet as a catalyst for change has generated fear among Government and the powerful, leading to the adoption of increasingly sophisticated technologies and tactics to censor content,” he cautioned, noting that individuals who expressed critical opinions were also being identified and monitored, often leading to their arrest and detention. “As a general rule, there should be as little restrictions as possible to the flow of information on the Internet except in a few, very exceptional and limited circumstances prescribed by international law.”
Stressing that the types of content that were prohibited offline under international law applied to the online environment, he drew a distinction between illegal content, which States are required to prohibit, and content that was considered harmful, offensive, objectionable or undesirable, but which States did not have to prohibit or criminalize. In that context, there were three types of expression: expression that constituted an offence under international law and may be prosecuted criminally; expression that was not criminally punishable, but may justify a restriction and a civil lawsuit; and expression that did not give rise to the criminal or civil sanction, but raised concerns of tolerance, civility and respect for others.
Those three categories posed different issues of principle and called for different legal and technological responses, he said, noting that the types of expressions that States must prohibit were child pornography; direct and public incitement to commit genocide; advocacy of national, racial or religious hatred that continued incitement to discrimination, hostility or violence; and incitement to terrorism. Moreover, any domestic criminal law criminalizing those types of expression still had to meet the three-part test of restrictions to the right to freedom of expression.
Despite those standards, States continued to utilize broad and vaguely worded legislation that could be misused to suppress critical expression, he said. Such laws were in clear violation of the right to freedom of expression, as they did not meet the criteria of legal clarity and were subject to abuse. Further, States could never, under any circumstances, justify restrictions on discussion of Government policies, political debate, human rights reporting, Government activities and corruption, engaging in election campaigns, peaceful demonstrations or political activities, and expressing opinions and dissent, religion or belief.
While acknowledging that Internet access was not a human right, he reiterated that States had a positive obligation to promote or facilitate the enjoyment of the right to freedom of expression. In that context, the Internet had become an essential communication tool and having a connection was not only vital to the freedom of expression, but to realizing a range of other rights, such as the right to freedom of association and assembly.
Particularly underscoring Internet access as a crucial element to the right to education, he noted that educational benefits attained from internet usage directly contributed to States’ human capital, thereby accelerating development. But, while public and private policies aimed at extending such access had substantially increased the presence of Internet facilities, usage continued to lag behind in developing countries. According to the 2011 Millennium Development Goals Report, penetration levels in the developing world remained relatively low at 21 per cent compared to 72 per cent in developed regions. Factors posing challenges to ensuring Internet access at the national level included telecommunications monopolies. Lack of competition and scarce international bandwidth also tended to keep prices high.
He said that to overcome those barriers, States should play a proactive role by making the Internet more affordable and ensuring public access for people in rural areas and for people with low income levels. In that context, he noted examples of best practices, including in Brazil, Uruguay and Sweden. He further highlighted the role that mobile technology could play in bridging the digital divide and expanding Internet access, including by serving as a stepping stone for Internet connectivity.
Urging States to adopt effective and concrete policies and strategies to make the Internet more widely available, accessible and affordable, he further encouraged them to provide support for training in information and communications technologies. He also called on them to pay particular attention to removing obstacles to access to information for particular groups in society, such as persons with disabilities. Closing, he said while most people in the room took the Internet for granted, “We must not lose sight of the fact that three-quarters – or the majority - of the world’s population still lack access to this technology.”
Question and Answer Session
Norway’s delegate asked the Special Rapporteur to elaborate on the importance of the role of Government concerning the privacy of individuals on the internet, which was important because the internet could also be used to identify individuals and make them more vulnerable. She also asked what could be done to ensure more access to the internet for women and other marginalized groups.
Brazil’s delegate agreed freedom of expression on the internet was important, and noted his country aimed to achieve access to the internet for 40 million people, which involved investments of $6 billion in broadband policies.
The European Union’s delegate urged countries to use the Special Rapporteur’s expertise, noting freedom of expression was vital to democracy. She asked the Special Rapporteur to elaborate on whether he had been collaborating with regional human rights mechanisms. She would also be interested to hear more about the programme in Botswana he mentioned in his report, and whether he believed it could be a model for Africa and elsewhere. She also asked for more information on the research project in India that used information communication technology to promote women’s entrepreneurship.
Algeria’s delegate assured firm cooperation with the Special Rapporteur’s mandate, and asked how to ensure free access in less developed countries when new technologies were not yet available and basic services, such as electricity in rural areas, did not exist.
The delegate of the United States said he would be interested to hear more details about the relationship between internet access and empowerment of women, as there should be more research in that matter.
The Czech Republic’s delegate asked whether internet access was vital for preserving political debate during elections, and asked for some positive examples of how respect fostered through the internet overcame tensions within society.
Switzerland’s delegate said he would like information about how States cooperated with private telecommunications companies, and asked how the international community could cooperate with the private sector to provide access to the internet and promote freedom of expression.
Austria’s delegate, aligning with the European Union, said digital literacy training was important, and asked for examples of good practices, in that regard.
Statement by Assembly President
The Committee then heard an address from General Assembly President NASSIR ABDULAZIZ AL‑NASSER ( Qatar), who underscored the critical role it played in promoting human rights, which formed the third pillar of the United Nations. The issues before the Committee this session were particularly pertinent, given the current remarkable moment in history.
“We are witnessing emerging democracies calling for liberty, dignity and social justice,” he said. “Your consideration of topics ranging from social development to the advancement of women to the promotion and protection of children’s rights are fundamental starting points for realizing the potential of democratic nations. They are also essential elements of peaceful and secure livelihoods for all.”
As a subsidiary of the Assembly, the Human Rights Council played a crucial role in the worldwide protection and mainstreaming of human rights, he continued. Last year, the Assembly carried out negotiations on the Council’s review to strengthen its functions and work methods, and he welcomed the consensual approach and outcome resulting from that review, suggesting that the practice be strengthened. The Assembly supported the Council’s work and both bodies would benefit from the new practice of holding an interactive dialogue in the Committee with the Council’s President. He also looked forward to addressing the Council next March.
He acknowledged the leadership of the High Commissioner for Human Rights, Navi Pillay, and commended the work of the Committee Chair to address the issue of the speaking order of major groups. He urged delegations to strive for consensus in their deliberations, thereby ensuring lasting, legitimate resolutions on the complex issues under consideration.
Question and Answer Session
Following that address, the Committee resumed its dialogue session.
Sweden’s delegate, noting that more than 40 delegations had affirmed the need to ensure the right to access, stressed that access to the Internet was also access to content. His Government was concerned with efforts to censor content far beyond the four types of prohibited content and it looked forward to a discussion to be held in the Human Rights Council next year on this issue. He asked the Special Rapporteur what role the Committee and the Council could play in furthering those issues. Should efforts be directed towards enforcing obligations or creating an enabling environment?
Venezuela’s representative said his Government had been attacked by the European Union, which questioned the right to freedom of assembly and to access the democratic process in his State. He stressed that Venezuelan citizens enjoyed all rights necessary to organize themselves and to proclaim their opinions in a peaceful nature. Venezuela had a vibrant participatory democracy. In contrast to the European Union’s comments, no restrictions prevented Venezuelan citizens from accessing any webpage they desired. Further, the Government had engaged in a process of democratizing the airwaves. Some private media outlets had played a role in destabilizing the State in recent years, but the Government had never closed down any television or radio station.
Syria’s delegate, highlighting the Special Rapporteur’s emphasis on State responsibility to provide access to the Internet, asked how to reconcile that responsibility with the fact that a large number of developed countries seemed to reject that notion by creating obstacles to developing countries’ access to information and communications technology. What was the Special Rapporteur’s opinion on the need to transfer those technologies to every developing country with no restriction? What did he think about the effect of unilateral economic sanctions imposed by developed countries on developing countries, and what was the impact of free and unrestricted access to technology by developing countries? How did those restrictions impact the enjoyment of freedom of opinion and expression by the citizens of developing States? Finally, she stressed that the right to freedom of expression could not be used as a tool to reach certain goals or inflame public opinion against Governments.
Costa Rica’s representative said the report reached well-founded conclusions. His delegation believed the elimination of the digital divide was not just a question of resources, but of policies. He particularly highlighted the Special Rapporteur’s elaboration of the three types of expression. He asked the Special Rapporteur to provide specific actions that States could take to realize the recommendation regarding their obligations to guarantee the free exchange of information.
Responding, Mr. LA RUEsaid he had brought this updated report to the Assembly because it was the body that discussed the Millennium Development Goals and he particularly wanted to highlight the digital divide both between and within countries. Discussions on freedom of expression must address the right of everyone. That meant that access to special media and forms of communication was needed. It also meant that everyone needed access in an individual and collective way.
He said even the poorest communities that had difficulties in providing basic services with water and electricity were solving the Internet access problem using mobile technology, particularly in Africa. While cell phones were not equal to computer-enabled access, they represented a first step and served as the bridge to developing policies and infrastructure.
Calling attention once again to the growing criminalization of Internet use and content, he said that growing trend had to be stopped. The Internet must be seen as a public space where people could meet and exchange ideas. Yes, hate speech, cyber-bullying and risks of terrorism and transnational crime existed, but those risks were best combated through stronger democracy. Indeed, the response to hate speech must be more speech. Moreover, prohibiting hate speech did not solve the structural issues.
He went on to say that freedom of expression was an essential element in breaking the wall of impunity and especially for women to speak out on domestic and sexual violence. Internet access could also create equal possibilities for women’s participation and job opportunities. It also increased the social and political participation of poor people.
He hoped to follow up in terms of good practice by gathering examples and presenting them in a future report, as an observation on access around the world. It was also essential to look at decriminalization trends around the world. In that context, he stressed that when one assumed public office that went hand in hand with public scrutiny. That was what transparency meant. People must be able to speak their mind, criticize their authorities and learn how decisions were made, as well as why funds were spent, and the Internet played a very important role in building electronic governance.
Statement by Special Rapporteur on Independence of Judges
GABRIELA KNAUL, Special Rapporteur on the Independence of Judges and Lawyers, said she had used the second year of her work to integrate a gender perspective and women’s human rights into the work of the mandate. Since she last appeared before the Committee, she went on three official visits to Bulgaria, Romania and Turkey. She was also discussing with the Government of the Maldives a follow-up visit early next year, and thanked the Government of Guinea-Bissau for extending an invitation to her. She also reiterated requests to receive an invitation to conduct an official mission to Governments of China, India, Iran, Kenya, Nepal, Nigeria, Pakistan, the Philippines and Venezuela.
Historic, pervasive discrimination against women throughout the world compelled her to look at how they were treated in the criminal justice system, she said. In presenting her report to the Committee, she acknowledged it was not a definitive or comprehensive overview of the subject, but rather a starting point that would hopefully encourage stakeholders to properly study and understand the impacts gender-based discrimination had on both women and men in their engagement in the justice system. Women had been historically excluded from judicial office and the legal profession throughout the world, particularly in the highest positions. “This undoubtedly reflects institutionalized gender discrimination within the justice system, which needs to be addressed and remedied,” she said.
Yet, women in the judiciary did not guarantee inclusion of a gender perspective, since both men and women were prone to gender-based biases. There needed to be training and capacity-building programmes on international human rights law and jurisprudence regarding gender equality and women’s rights for judges, prosecutors, public defenders and lawyers of both sexes, she said. “Understanding the role in the judiciary in shaping and contributing to gender stereotypes is an essential step for States in addressing inequality and thereby abiding by their international obligations,” she said.
Gender-based discrimination could be blatant when women were victims of gender-based violence and crimes, she said. Lack of criminalization at the national level of certain gender-based crimes – such as domestic violence, marital rape and sexual harassment - caused a detrimental impact on women’s access to criminal justice proceedings, while a number of laws also restricted women’s freedom. Women victims and witnesses were often detained in jail or shelters for protection, an unjust practice that put them at risk of further violence and kept them from their families. “Women are not intrinsically vulnerable: it is their particular individual situation, coupled with pervasive societal gender-based discrimination that facilitates their being threatened and targeted by violence. Women should not be overprotected simply because of their gender; indeed, with the appropriate safeguards, the experience of being a witness can be empowering for women and crucial for advancing the goals of the criminal justice system,” she said.
Meanwhile, sentences of public execution, stoning and corporal punishment were prohibited under international law, yet they were still ordered and applied disproportionately targeting women offenders, she said. “Traditional notions of judging and judicial authority must be challenged and the representation of women in the judiciary encouraged,” she said. “The integration of a gender perspective and the rights of women in the criminal justice system is one component of the solution needed to ensure that women are not ruled out of the rule of law.”
She also noted the Human Rights Council asked her to carry out a global thematic study to assess the human rights education and continuing training of judges, prosecutors, public defenders and lawyers. She was preparing a questionnaire for all relevant actors on the website of her mandate for the period of November 2011 to January 2012, and would in June 2012 present a study based on the information gathered. She hoped for full cooperation from Member States and intended to conduct regional consultations following the presentation of the study to the Human Rights Council. “Through these regional meetings, I will be able to identify existing institutions and programmes, best practices as well as the structural elements of the justice system which may impact on capacity-building,” she said.
Question and Answer Session
The representative of the Maldives agreed that the judiciary would gain more legitimacy when its makeup matched that of the population over which it presided. Her country was working to increase the number of its women judges, as well as to reconcile differences between various political parties. The Government recognized that professionalism and acceptance of the judiciary, among others, were key challenges to its democratic transition
Mexico’s delegate highlighted recent reforms in its justice and penal systems, as well as its constitutional reforms. He stressed that the Amparo procedure protected any person whose rights had been violated by any authority. Reforms to that procedure’s accessibility, scope and effectiveness were approved in June 2011 and complemented human rights legislation. Other constitutional changes required greater knowledge of international instruments and were critical for their application. In that respect, the questionnaire would be very helpful.
The United States ’ delegate welcomed the report’s dual focus and noted the positive role the judiciary may have in advancing the role of women. She asked if the Special Rapporteur had concrete recommendations that the United Nations may consider.
Costa Rica’s representative said human rights education at all levels was particularly important for her Government and she thanked the Human Rights Council for following up on her delegation’s request on that matter.
The European Union noted that women continued to face discriminatory treatment and institutionalized training was needed to address that situation. In view of the need to uphold judicial independence, did the Special Rapporteur have examples of best practice? He also asked how the problem of gender stereotypes could be effectively addressed at the national and international levels. Noting that women were disproportionately targeted by such sentences as stoning, he wondered if the Special Rapporteur could provide any reason for it.
Responding, Ms. KNAUL said gender stereotypes had diverse historical, cultural, societal and environmental causes. Exclusion of women from judicial office was an example of that; women’s roles as mothers, caretakers of the children, elderly, husbands and homes was used as a basis for bias and discrimination. The Special Rapporteur noted she had been recently told that women did not like to be prosecutors because of their roles as mothers – that was a kind of prejudice that excluded them from office.
In many States, provisions on rape and sexual assault were based on gender stereotypes and prejudices, she said. For example, some required physical proof of violence to show no consensual sex, some required corroborated testimony under the assumption that women often lied, and some said it was impossible to rape a sex worker. Some inverse stereotypes were that male perpetrators were unable to control their own sexual urges, or that male victims of rape should have been able to defend themselves, or that women were unable to commit crimes against men.
She listed a number of examples of good practices, including the International Bar Association and International Criminal Court information campaign to address consistent under-representation of African women in their institutions. The Rome Statute was also an important instrument regarding the prosecutor’s role, requiring taking into account the nature of the crime. Another good practice was the creation of specialized domestic violence courts that could improve the function of the justice system for women and improve efficiency, minimizing the burden on the victim and increasing conviction rates. On protection of women witnesses, the Rome Statute also offered good practices. In conclusion, she said, training the judiciary must be a priority for all States.
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