Human Rights Not Luxuries, but Rather ‘Inalienable Entitlements’ to Be Exercised Everywhere by All Members of Human Family, Third Committee Told
Human Rights Not Luxuries, but Rather ‘Inalienable Entitlements’ to Be Exercised Everywhere by All Members of Human Family, Third Committee Told
|Department of Public Information • News and Media Division • New York|
Sixty-seventh General Assembly
26th & 27th Meetings (AM & PM)
Human Rights Not Luxuries, but Rather ‘Inalienable Entitlements’ to Be Exercised
Everywhere by All Members of Human Family, Third Committee Told
Hears from 12 UN Experts — Equitable World Order, Right to Food, Transnational
Corporations, Human Rights in Democratic People’s Republic of Korea among Issues
Progress had been made in implementing the worldwide pledge to human dignity embodied in the United Nations Charter, but work was needed to achieve a more democratic and equitable international order, the Third Committee (Social, Humanitarian and Cultural) was told today, as it resumed its debate on the promotion and protection of human rights.
“Today, more than ever, we must reaffirm that human rights are not luxuries we enjoy in times of prosperity and abundance, but inalienable entitlements which should be exercised everywhere by all members of the human family,” said Alfred de Zayas, Independent Expert on the Promotion of a Democratic and Equitable International Order, as he presented the first report of his mandate.
“With regard to a more equitable world order, it is clear that the financial crisis is also a moral crisis. Financial and commodity markets are not casinos and must be better controlled,” Mr. de Zayas added, proposing a change of thinking to, among other things, a functional paradigm of “enabling rights”, such as the right to peace, food, health and homeland.
He was one of a dozen Independent Experts, Special Rapporteurs and Working Groups Chairs who spoke on a range of human rights issues, from the right to food, to the situation in the Democratic People’s Republic of Korea, to transnational corporations, as the Committee continued to engage with some of the world’s most difficult and complex challenges. Also, as the Committee was reconvening after four days of meetings postponed due to the large storm that affected New York City, the Chairman expressed hope that those who had been doubtful of climate change would now take heed and delegations expressed sympathy for storm victims who had faced severe flooding, loss of electricity and destruction of their homes.
In a presentation that followed Mr. de Zayas, Olivier de Schutter, Special Raporteur on the right to food, told the Committee there was a “considerable” gap between the importance of fisheries as a food source and the attention it received in food security discussions. For example, the Committee on World Food Security refereed to fisheries “almost as an afterthought”, but fish consumption accounted for 15 per cent of all animal protein consumed worldwide; in at least 30 countries, fisheries contributed over one third of total animal protein supply, he said.
In the interactive dialogue following Mr. de Schutter’s presentation, Cameroon’s representative agreed overfishing was a major challenge in some regions. “This fight, for some people, takes a form of survival,” the delegate said, stressing the importance of artisanal fishing.
Responding, the Special Rapporteur said institutional reform was key to involving fisheries in food security issues, citing such examples as the Maldives reserving zones for small-scale fishers, which ensured they could sustain their livelihoods. The challenge was to realize the importance of small-scale fishers, he said.
In the afternoon, the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea, Arzuki Darusman, told the Committee he had not been granted access to the country since his 2010 appointment. He regretted a “fresh approach” had not been forthcoming; an estimated 16 million people in that country suffered from chronic food insecurity and high malnutrition, while slow economic growth and a “military first” policy was detrimental to people’s welfare. Overall, there had been “no sign” of improvement in the human rights situation of the country, he said.
In the ensuing interactive dialogue, the representative of the Democratic People’s Republic of Korearejected allegations, saying his Government’s principled position to reject the Special Rapporteur’s mandate would not change. The report was a product of hostile policies by the United States and the European Union, he said. After 2003, his Government had cooperated with United Nations agencies and had invited the Special Rapporteur on violence against women, among others, for a visit. “We have nothing to hide,” he said.
Responding, Mr. Darusman said all information in his report had been through a process of compilation of information sourced within United Nations agencies and other international organizations. “The report is what it is: the reporting of the state of play in the country in regard to the state of human rights,” he said.
In another afternoon presentation, Puvan J Selvanathan, Chair of the working group on the issue of human rights and transnational corporations and other business enterprises, stressed modern understanding of human rights needed to reflect the interdependency of traditional State responsibilities and businesses as wealth creators, contributors to peace and development, and providers of solutions to sustainable development challenges.
Overall, commerce’s contribution to civilization was overwhelmingly positive, he said, though he added that it also had negative impacts on human rights and the environment. He highlighted that last year the Human Rights Council had unanimously endorsed the Guiding Principles on Business and Human Rights. During the interactive portion of his presentation, he said transnational corporations operated supply chains that tied into a single corporate policy, while States acting in concert with each other, or regional blocks, was where thinking was coalescing. The key challenge was raising the awareness to businesses, civil society players and other constituencies on how they would use the Guiding Principles to inform their practices and engage in dialogue with States.
Also briefing the Committee today were the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the Independent Expert on Minority Issues, the Chair-Rapporteur of the working group on the right to development, the Special Rapporteur in the field of cultural rights, and the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence.
The Special Rapoorteur in the field of cultural rights also delivered statements by the Special Rapporteur on the situation of human rights defenders, the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and the Special Rapporteur on trafficking in persons, especially women and children.
The Committee will reconvene at 10 a.m. Monday, 5 November to begin its discussion on racism and self-determination, as well as continue its consideration of human rights.
The Third Committee (Social, Humanitarian and Cultural) met today to continue its discussion on the promotion and protection of human rights.
For its discussion, the Committee had before it a note by the Secretary-General on Effective promotion of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (document A/67/293), transmitting the report of the Independent Expert on minority issues, Rita Izsák. The report focuses on the value of institutional attention to minority issues within governmental organs, national human rights institutions and other national bodies as a means of promoting minority rights and mainstreaming attention to minority issues.
Institutional attention to minority issues is essential to changing exclusionary practices and discriminatory perceptions about minority groups, the report concludes. Activities should focus on all sectors of society. Coordinated institutional approaches should engage minorities, majority communities and civil society as key stakeholders. Minority issues should be mainstreamed within all relevant institutions, while diversity and equality should be promoted in all areas of public life.
The interim report of the Independent Expert on the promotion of a democratic and equitable international order (A/67/277), Alfred de Zayas, transmitted in a note by the Secretary-General, outlines his views on the conceptual and legal framework of the mandate. It highlights epistemological challenges inherent in the notion of democracy at the domestic and international levels, as well as the implications of a “culture of equity” based on “common sense and common interest”.
“This report is inspired by the purposes and principles of the United Nations as proclaimed in the Charter,” he says in the report, and in pertinent United Nations and regional human rights norms, including the core human rights treaties and Assembly resolutions. The report focuses more on the Assembly’s policy-making mandate and addresses a number of obstacles to realizing a democratic and equitable international order. It also identifies good practices and lessons learned, both at the international and domestic levels. He underlines the importance for the Assembly to reassert its role as the pre-eminent world forum and ensure that the Charter is respected as a world constitution.
Also before the Committee was a note by the Secretary-General transmitting the report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (document A/67/396), Ben Emmerson, which outlines his activities between 3 April and 31 August 2012. It also contains an evaluation of the mandate of the Office of the Ombudsperson - established by Security Council resolution 1904 (2009) and amended by resolution 1989 (2011) - and its compatibility with international human rights norms, assessing in particular its impact on the due process deficits inherent in the Council’s Al-Qaida sanctions regime. The report makes recommendations for amending the mandate to bring it into full conformity with international human rights norms.
The report of the Special Rapporteur on the right to food (document A/67/268), Olivier De Schutter, transmitted in a note by the Secretary-General, identifies challenges facing global fisheries and examines how those most vulnerable to negative impacts – including residents of developing coastal and island countries, especially low-income food-deficit countries - can be supported to ensure the progressive realization of the right to food.
A note by the Secretary-General transmitting the Report of the Special Rapporteur on the Situation of human rights in the Democratic People’s Republic of Korea (document A/67/370), Marzuki Darusman, points out that the Government had thus far not cooperated and the report was submitted based on the Special Rapporteur’s visit to Thailand from 25 to 29 June 2012, and on meetings in Geneva, New York and Jakarta since March 2012. In addition to providing an overview of the current situation, the Special Rapporteur presents conclusions and recommendations for the Democratic People’s Republic of Korea and the international community.
In his conclusions, the Special Rapporteur emphasizes the need for the Democratic People’s Republic of Korea to ensure the overall protection of human rights as provided under international human rights instruments, with a specific focus on: freedom of movement, freedom of expression and opinion, and the rights to food, health, water and sanitation. The international community should continue to provide humanitarian support to the people of the Democratic People’s Republic of Korea. Provisions of food, medical and other urgent humanitarian needs, should not be contingent upon any political conditions.
Also before the Committee was the report of the Special Rapporteur in the field of cultural rights (document A/67/287), Farida Shaheed, who proposes shifting the paradigm from one that views culture as an obstacle to women’s rights to one seeking to ensure equal enjoyment of cultural rights. Such an approach would constitute an important tool for the realization of all their human rights.
The report underlines the right of women to have access to, participate in and contribute to all aspects of cultural life. This encompasses their right to actively engage in identifying and interpreting cultural heritage and to decide which cultural traditions, values or practices are to be kept, reoriented, modified or discarded. States should review issues - such as ensuring women’s mobility and women’s access to their own cultural heritage – so as to assess the implementation, or non-implementation, of women’s cultural rights in their territories on a basis of equality.
A note by the Secretary-General transmitting the report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence (document A/67/368), Pablo de Greiff, covers the ways in which those issues – conceived as a set of mutually reinforcing measures – contribute to strengthening the rule of law. He draws attention to the weaknesses of purely formal conceptions of the rule of law, emphasizing that transitional justice measures must be conceived and established in a manner compliant with the rule of law, if they are to be sustainable rights-enhancing instruments.
Also before the Committee was a note by the Secretary-General transmitting the report of the Special Rapporteur on the situation of human rights defenders, (document A/67/292), Margaret Sekaggya, which focuses on the use of legislation to regulate the activities of human rights defenders. Its five sections cover: background information; the international legal framework regulating the activities of defenders; types of legislation affecting the work of human rights defenders; minimum standards for the development of legislation and procedural safeguards to be followed in the application of legislation; and recommendations for States and other stakeholders.
The report says the Special Rapporteur remains deeply concerned that national legislation continues to restrict the activities of human rights defenders. Recent legislative developments in a number of countries are not in compliance with international human rights standards and do not contribute to a conducive working environment for defenders.
It recommends that anti-terrorism legislation identify acts defined as terrorism and punishable as such, in accordance with criteria developed by the Special Rapporteur on the promotion and protection of human rights while countering terrorism (E/CN.4/2006/98). Further, States’ legal frameworks should contain non-discriminatory provisions governing oversight and accountability of public officials, especially with regard to their responses to peaceful public displays of dissent and demonstrations where human rights issues are being raised.
Also before the Committee was the note by the Secretary-General transmitting the report of the Special Rapporteur on the right to adequate housing as a component of the right to an adequate standard of living and on the right to non-discrimination (document A/67/286), which analyses the ruling paradigm of housing policies that focus on housing finance as the main means of promoting homeownership. The report assesses the impact of such policies, and concludes that the full realization of the right to adequate housing, without discrimination, cannot be promoted solely by financial mechanisms and requires broader and more holistic housing policies and State interventions. She calls for a paradigm shift from housing policies based on the financialization of housing to a human rights-based approach to housing policies.
Finally before the Committee, a note by the Secretary-General transmits the report of the Special Rapporteur on trafficking in persons, especially women and children (document A/67/261), Joy Ezeilo, covering her activities during the 1 August 2011 to 31 July 2012 period. It contains a thematic analysis of the issue of human trafficking in supply chains, in which the Special Rapporteur examines the existing international legal framework and standards applicable to States and businesses, in addition to non-binding codes of conduct and principles adopted by businesses, as part of efforts to prevent and combat human trafficking.
Among other things, she recommends that States ratify the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, among other relevant international instruments. States also should develop laws and programmes that motivate businesses to proactively comply with their duty to prevent and combat trafficking in persons, such as tax incentives, product certification and labelling.
Opening the meeting, Chair HENRY L. MAC-DONALD ( Suriname) said his sympathies were with all who had experienced the storm that had hit New York City over the past week, and he expressed hope that those who were doubtful of climate change would now take heed.
The programme of work over the next week was still under discussion, and in the afternoon there would be a better picture of how the Committee would work next week, he said.
Statement by Independent Expert on Promotion of Democratic Order
ALFRED DE ZAYAS, Independent Expert on the Promotion of a Democratic and Equitable International Order, said his mandate, created last year, might appear to some as overbroad or abstract, but certainly the intention was to arrive at pragmatic results. “Today, more than ever, we must reaffirm that human rights are not luxuries we enjoy in times of prosperity and abundance, but inalienable entitlements which should be exercised everywhere by all members of the human family,” he said. “Norms, monitoring mechanisms and actual enforcement on the ground demonstrate that progress has been achieved in implementing our pledge to human dignity.”
Because the current international order was not very democratic and certainly not equitable, the General Assembly had adopted resolutions aimed at progressively moving toward a more representative world order in which peoples would have greater opportunity to participate at the local, regional and international levels, where the natural resources of the planet and international trade would be shared in a more equitable manner. The Independent Expert was working through consultation with States from all regions of the world, inter-governmental organizations and civil society. “I have forwarded questionnaires to stakeholders and am cross-fertilizing with think tanks and universities. I am encouraged by the extensive and substantive responses already received,” he said.
Among generic obstacles to a democratic and equitable world order, he saw the tendency of some States to apply international law à la carte and the lack of respect for international treaties. He was devoting considerable thought to the undemocratic operation of financial and commodity markets and the necessity to impose greater national and international controls, including reforms of the Bretton Woods institutions and proactive World Trade Organization measures for equitable trade. He was also exploring proposals for a World Parliamentary Assembly in order to enhance the participation of civil society within international institutions, and exploring implications of the Inter-Parliamentary Union’s 1997 Declaration on Democracy, recently presented to the Council of Europe.
“With regard to a more equitable world order, it is clear that the financial crisis is also a moral crisis. “Financial and commodity markets are not casinos and must be better controlled,” he said, adding that it remained to be empirically shown that privatization advanced the economy without harming human beings. Everyone agreed that national budgets should be balanced, but the solution was not “austerity measures” in the social field, which invariably resulted in unemployment and misery. He called for austerity with regard to military expenditures and setting priorities; States must engage in serious disarmament negotiations and recycle resources away from the “military-industrial complex” into education, health care and social services, he said.
At the international level, he highlighted the Human Rights Council’s creation of an inter-governmental working group to draft a Declaration on the Human Right to Peace, to be submitted to the General Assembly. That declaration held considerable potential, especially if States recognized that it was in their own interest to implement all recommendations of the Council, and if non-governmental organizations were given a greater voice in the process.
He concluded by proposing a change to thinking, abandoning the obsolete division of rights into artificial categories of first, second and third generation rights – with their intrinsic prejudices. “Let us instead think of a functional paradigm of enabling rights (such as the rights to peace, food, health and homeland), inherent rights (such as equality and non-discrimination), instrumental rights (such as due process and freedom of expression) and what I would call outcome rights, that is, the daily exercise of human dignity in the form of the right to our identity, to achieve our potential and to be just who we are, free to enjoy our own culture and opinions,” he said.
When the floor was opened for questions and comments, the representative of the Russian Federation said a democratic and just international order should be viewed in the context of sustainable development and the sovereign equality of States. That issue was linked to the rule of law at the national and international levels. Such a world order was impossible without universal compliance with commonly accepted norms of international law, especially the Charter of the United Nations.
Cuba’s delegate lauded the Human Rights Council’s decision to establish a mandate that addressed a democratic and equitable international order, saying: “This is a theme that is of increasing importance.” Countries in the global South had been marginalized.
Responding to those comments, Mr. DE ZAYAS said the bottom line was multilateralism. “We do not want Governments to interpret international law or international treaties as it suits them,” he said. The Council had mandated him to prepare a report on participation, which he was currently preparing.
He said technology, cooperation and knowledge transfer was indispensable. The momentum of globalization could be used to also advance cultural and civil rights. His ambition was to persuade doubters that his mandate could be advanced. He was contacting universities and think-tanks in order to “give life” to his mandate. “We must advance together,” he stressed.
Special Rapporteur on Protecting Human Rights While Countering Terrorism
BEN EMMERSON, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, said the Al Qaida sanctions regime was due for reconsideration and renewal and that his report aimed to assist States in formulating positions on whether and what sort of amendments were required. He said any regime of targeted sanctions needed to be universally applied in order to be effective. Differential or inconsistent application among Member States would severely hamper their purpose. With regard to Al-Qaida, an effective sanctions regime was necessary to counter the threat they posed to international peace through international terrorism.
Sanctions applied to individuals and entities that were designated as being associated with Al-Qaida, and they affected every area of individuals’ daily lives, he said. He explained that the Security Council was currently able to make listing decisions without independent review and that no effective and binding judicial review existed to review applications for de-listing of individuals and entities on the consolidated list. This gave individual States the power to make executive decisions with far reaching consequences for their own citizens unconstrained by domestic judicial review or binding human rights treaties. He added that he had also found evidence that some States had abused the system by nominating individuals to the Consolidated List as a means of suppressing political dissent.
Mr. Emmerson described “sustained and strongly worded criticism” of the regime from several parties, summed up by the Eminent Jurists Panel of the International Court of Justice in 2009, which concluded that the regime violated fundamental principles of human rights and the rule of law and was “unworthy of an international institution”.
The report sought to answer the question of whether the introduction of the Ombudsperson was sufficient to address these concerns, he said, adding that it concluded that further changes were needed to bring the procedure into line with international minimum standards of due process. The Security Council lacked its own enforcement machinery and was dependent on Member States to give effect to its decisions. States were bound by Article 25 of the Charter to implement the sanctions regime adopted under Article 39. But, many States were hampered in their compliance with that international obligation because of the regime’s lack of due process mechanisms. Prior to the introduction of the Ombudsperson, many national and regional courts had declined to give effect to the implementing measures adopted by national Governments and regional organizations, with several judgements finding States to have acted unlawfully because implementation violated the fundamental rights protected by constitutional or international human rights law.
A recent decision by the European Court of Human Rights required that, in the absence of independent judicial review of listings at the United Nations level, States signatories to the European Convention on Human Rights needed to subject listings decisions to domestic review, he said. Such adverse judicial rulings had undermined both the perceived legitimacy of the regime and its effective enforcement, he said, calling on the Security Council to find a solution that was compatible with the human rights standards binding on Member States.
Mr. Emmerson said his report concluded that the Council had powers under Chapter VII broad enough to enable it to enhance the regime’s effectiveness by establishing an independent adjudicator at the United Nations level with jurisdiction to review and overturn a designation by the Committee. That would not require any radical procedural departures from the present regime and would only require the Security Council to undertake to abide by the recommendations of the Ombudsperson. If such measures were not taken, he said the regime would continue to encounter insurmountable obstacles to effective enforcement in Europe and elsewhere. Taking the step, however, would promote international peace and security by strengthening the regime’s enforcement and harmonising the imperatives in Article 1(1) and Article 1(3) of the Charter. It would also resolve the conflict of international norms currently impeding implementation and would honour the purposive synthesis outlined by the Security Council itself in Resolution 1989 (2011).
Taking the step would not constitute any delegation of the Security Council’s Chapter VII powers, because it would require a further adoption by the Council of a resolution in which the Council itself would undertake to abide by the conclusions of an independent adjudicator, he said. In addition, review by an independent adjudicator would be directed primarily to the decisions of a subordinate body exercising delegated executive powers. With “no sustainable legal objection to the establishment of a mechanism of independent judicial review,” there remained no reason not to make the necessary changes and remove from the Committee the power to “act as judge in its own cause.” He had, thus, made a series of recommendations in his report which, if implemented, would bring the regime into conformity with the requirements of international human rights law and, at the same time, secure its effective and universal implementation.
When the floor was opened to questions and comments, some speakers supported the Special Rapporteur’s conclusions and commented on his evaluation of the mandate of the Office of the Ombudsperson, established by Security Council resolution 1904 (2009), and amended by resolution 1989 (2011). Some speakers said the report’s conclusions were important for improving the promotion and protection of human rights in the United Nations strategy against terrorism, and supported the Special Rapporteur’s guidelines for improving transparency. Mexico’s delegate asked about other measures that could be taken to ensure equality among parties in sanctions-related cases, and further, how the promotion of human rights was related to the rule of law.
Other speakers noted that the due process deficits inherent in the Council’s Al-Qaida sanctions regime provided the opportunity for other fora to fill that gap.
On that point, Pakistan’s delegate said that, given the impact of listing – which involved damage to a person’s reputation – should the Security Council not pay compensation to those involved in an unjustified listing, when that could be proven? He asked if resolution 1988 was regressive in terms of due process and human rights assurances, and further, whether the Special Rapporteur would recommend the introduction of an ombudsperson into similar regimes with similar measures.
Still other speakers took issue with the conclusion that the existing 1989 sanctions regime had fallen short of minimal international due process standards, with the representative of the United States arguing that the decision to impose sanctions must meet a “reasonableness” standard, not a criminal one. The Council’s steps were to be preventive, not punitive. Also, the Ombudsperson procedure was a robust one, with significant protections that enshrined the principle of fairness.
The representatives of Switzerland, Iran, European Union, United Kingdom and Liechtenstein also spoke in the discussion.
Responding, Mr. EMMERSON said he had focused on the Al-Qaida regime. Some targeted sanctions regimes fell outside his mandate. Others were closely related. To an idea to separate the Taliban regime from the Al-Qaida regime, he noted one case, in which a person requesting delisting had received a favourable recommendation from the Committee, only to find out the person had been listed on another sanctions regime.
“This is the regime that sets the standard,” he said, noting that the Al-Qaida regime had also been the target of sustained legal challenges. It had taken 10 years for it to introduce a due process measure. “Why is it that the Security Council has to be operating so far behind the curve?” he asked.
As to other measures to ensure equality of parties, he cited the obligation to disclose exculpatory evidence to a person, which was a problem, as was the use of evidence obtained through torture. Those were important due process issues, as was the obligation to provide funding for legal representation. As to the relationship between the sanctions regime and the rule of law, he said both the current and former Secretaries-General had emphasized the importance of bringing the regime into line with the rule of law. It was a shame that the International Commission of Jurists, among others, had said the regime was unworthy of an international body.
He said the Security Council had recognized that articles 1.1 and 1.3 of the Charter were not conflicting; rather, they must be interpreted hand-in-hand. Respect for human rights and rule of law was a question of effective prevention. Indeed, it was the first duty of States to protect citizens’ lives and the lives of those within their jurisdiction. Time had shown that “human rights abusive” counter-terrorism strategies were among the factors that caused the spread of terrorism.
As to reparations, he said the High Commissioner for Human Rights had recommended that reparations be made to individuals. The European Court of Human Rights had not done so in one recent case, as the victim had not requested it. As to whether reparations should be paid by States, regional organizations or the Security Council was an issue of policy for the United Nations as a whole.
On other reports he was preparing, he said his next report to the Human Rights Council would review the international minimum standards for the accountability of public officials who had collaborated in torture by a torture rendering State. It would be before the Council in March. In June, States - including two permanent members of the Security Council - had asked about a study of the use of drones. He had begun such work and had heard communication of complaints. To make recommendations on that issue, he had organized a team of experts to identify incidents that had possibly resulted in civilian casualties. He would aim to present that report to the Assembly in the fall of 2013.
As for his reasons about why the sanctions procedure had fallen short of minimum standards, he said the Ombudsperson’s recommendations were not binding, there was no independent judicial review, evidence obtained by torture could be admitted, the Ombudsperson could not disclose the whole case to a petitioner, and finally, there was no adequate system for disclosure or for the funding of legal representation. Those issues must be addressed by the Council.
As to why he suggested a proportionality test in addition to one on association, he said a person only had to look at the effect of such sanctions regimes on the delivery of humanitarian aid to see a disproportionate impact.
To a question on the standards of “more likely than not”, he said the Security Council was determined to maintain the proposition that they were not criminal sanctions and prohibit criminal standards of proof. Were that provision not there, he, like others, would take the view that the effect of those penalties would require a criminal standard of proof. Summing up the problem with the regime, he said diplomacy had been allowed to take the place of law.
Statement by Independent Expert on Minority Issues
Presenting her report, RITA IZSÁK said, regrettably, twenty years after the adoption of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, all regions had disturbing trends and events that required intensified efforts to protect their rights. They needed to constructively address minority issues and promote inter-group and inter-faith dialogue. “In some cases progress has at best been too slow, and we have even witnessed a rising tide of anti-minority sentiment in several countries and regions,” she said, adding she was particularly concerned about the rights and security of religious minorities.
Her report focused on practical measures to promote implementation of the Declaration at the national level through ensuring institutional attention to minority rights. The Declaration required positive measures in legislation, policy, programming and full and effective participation of minorities in public life. Minority rights protection frequently required measures that went beyond non-discrimination, recognizing that disadvantaged communities might need focused attention to ensure their equality. And while legal protection of minority rights should be considered an essential foundation for all countries, too often there was an implementation gap that must be overcome. Institutional attention would provide the logical step from legislation to concrete action, and her report focused on the value of attention to minority issues within governmental organs, national human rights institutions and other relevant bodies.
Human rights institutions, ombudspersons, equality bodies and specialist commissions should also incorporate attention to minority rights in their work, she said, adding they could help institutionalize dialogue between Government and minorities to ensure their issues were reflected in decision-making processes. To change exclusionary practices and discriminatory perceptions about minority groups in wider society, institutional attention was also essential in bodies such as police, judiciary and the media, she said. “Effective attention can only be achieved with the participation of minorities, both as staff of institutions at all levels, and as essential partners in the work of Government and independent institutions,” she said.
In States where minority populations were significant, inter-community relations were historically complex, or ethnic or religious tensions existed, addressing rights and concerns of minorities could be an important component to resolving early stages of problems and grievances or prevent tensions and conflicts from arising, she said. Concluding, she said a key recommendation of her report was that States consider institutional attention to minority issues as an essential component of their human rights, equality and non-discrimination obligations and as a means to improve their practical implementation of the Declaration on the Rights of Minorities.
When the floor was opened, representatives assured the Independent Expert strong support for her mandate and welcomed her report.
Some asked what could be done to promote participation of minorities, as well as awareness raising and reporting on discrimination, and what practical measures were required to enhance implementation of the Declaration.
The representative of Austria also asked whether she had identified good practices on institutional warning mechanisms for conflict prevention.
Representatives of the European Union, Russian Federation and Iran also spoke.
Responding, Ms. IZSÁK said on participation of minorities there were two questions: what establishments should exist to protect minority issues? And who should work in those institutions? She welcomed the European Union’s Office of Roma Rights, which employed those minorities. People were often afraid of reprisals and afraid to report discrimination against them; Governments needed to build trust in society through minority representation.
On good practices in conflict prevention, she highlighted the ethnic relations commission in Guyana, which aimed to monitor and improve relations, and the office of the ombudsman of Colombia. She found reason for optimism, as there had been positive practices that could be learned from and spread around.
Statement by Special Rapporteur on the Right to Food
OLIVIER DE SCHUTTER, Special Rapporteur on the right to food, said that, since his last presentation to the Assembly, he had visited Cameroon, Canada and the Food and Agriculture Organization (FAO) to examine how the implementation of the right to food could be improved. His conclusions would be presented to the Human Rights Council in March. Over the last year, he had focused on strengthening the right to food movement in Africa, with a roundtable held in Nairobi in April, in which participants assessed how Eastern and Southern African countries were working to establish legal, institutional and policy frameworks. Two weeks ago, the Economic Community of West African States (ECOWAS) launched the “ West Africa without Hunger” initiative.
“The right to food movement in Africa is making important progress,” he said, adding that he also had published two briefing notes on gains made. He was also focused on social protection as a key component of right to food strategies. With the Special Rapporteur on extreme poverty and human rights, he had proposed a Global Fund for Social Protection, in part to bridge the financing gap faced by least developed countries creating those floors. Such efforts were needed, because it was a shared responsibility to support the right to social security and the right to food.
Turning to his report, he said it assessed the contribution of fisheries to global food security and examined how the right to food could guide efforts towards sustainable fisheries. There was a “considerable” gap between the importance of that issue and the attention it received in food security discussions. For example, the Committee on World Food Security referred to fisheries “almost as an afterthought”. But fish consumption accounted for 15 per cent of all animal protein consumed worldwide; it was 20 per cent in low-income food deficit countries, and up to 50 per cent in West Africa. In at least 30 countries, fisheries contributed over one-third of total animal protein supply.
On the environmental front, he said the rise in atmospheric carbon dioxide led to increased sea temperatures, while oil spills and other events had lasting impacts on marine wildlife. Overfishing was also a major challenge, with the capacity of the global fishing fleet at least double that needed to sustainably exploit oceans, a trend exacerbated by public subsidies. The FAO Committee on Fisheries was developing international guidelines for securing sustainable small-scale fisheries, a “highly important” initiative, as there were diverging views on ensuring their protection.
Concluding his presentation, he said his report proposed involving local fishing communities in the design, implementation and assessment of fisheries policies. It encouraged States to regulate industrial fishing, consider the introduction of exclusive artisanal fishing zones, strengthen the position of small-scale fishers in the production chain, support fishers groups wishing to access export markets, and provide social protections to communities dependent on fishing for their livelihoods. States also should take measures to support a women’s role in the fisheries sector by ensuring their access to credit and providing them with adequate facilities at landing sites.
When the floor opened for questions and comments, many speakers took note of the Special Rapporteur’s report, underlining that the right to food was indeed a fundamental human right. The European Union’s representative asked how States could involve the fisheries sector in food security strategies, and further, how a balance between sustainability and the right to fish could be found.
Others said overfishing was a major challenge in some regions. “This fight, for some people, takes a form of survival,” said Cameroon’s delegate, stressing the importance of artisanal fishing. The Special Rapporteur had said it was difficult to determine if measures to fight over-fishing were going in the right direction and she wondered about his reasoning. She asked how industrial illegal fishing could possibly be compared with small-scale fishing, in that regard.
Kenya’s delegate said there were some who did not believe the right to food was indeed a right, and asked about the Special Rapporteur’s efforts to ensure a consensus on that issue.
Also speaking in the discussion were the representatives of Haiti, Cuba, Norway and Bangladesh.
Responding, Mr. DE SCHUTTER said institutional reform was key to involving fisheries in food security issues. Citing an example, he said small-scale fishers in South Africa had been allowed to voice their concerns in the development of fishing strategies. A new marine fish policy was then developed with their participation. Noting that sustainable fishing and over-fishing had featured in the Rio+20 outcome document, he said: “Things are beginning to change and we are now beginning to realize the importance of this challenge.”
As to how small-scale fishers could earn a decent living, he said “competition is increasing”. Large industrial fishing fleets now fished in developing country waters under fishing license and access agreements. To ensure small-scale fishers could sustain their livelihoods, he cited examples in the Maldives, which had reserved zones for small-scale artisanal fishers, and an initiative in Brazil. The challenge was to realize the importance of small-scale fishers.
He went on to urge that gender equality was a secret arm in fighting hunger. His report next October to the General Assembly would focus on the legal and institutional implementation of the right to food around the world. He would map progress made and had worked closely with FAO in that regard.
On other matters, he hoped to visit Haiti, with the support of Canada, for three days to address food security issues and examine how to rebuild a system that had collapsed, in part, because of natural disaster. To questions from Kenya’s delegate, he said he had proposed a new mechanism to support social protection floors and had received strong support from the International Labour Organization in that regard.
As for how to meet an increased demand for fish, he said that, between now and 2030, the world would need 30 million more tonnes of fish. Global production now stood at 160 million tonnes. Demand could only be met through fish farming. In his work, he had found that, while that was practiced in China and Asia, it was not developed at all in sub-Saharan Africa or Latin America.
Statement by Chairperson-Rapporteur of Working Group on Right to Development
Presenting her report, TAMARA KUNANAYAKAM, Chairperson-Rapporteur of the working group on the right to development, said deepening global and systemic crises, which unequally affected developing countries and vulnerable groups, underlined the increasing relevance of international solidarity. Regretfully, despite establishment of development as a universal and inalienable right 26 years ago, its implementation had yet to see the light of day.
The Group began its work by focusing its review on draft criteria developed by the high-level task force on the implementation on the right to development. She had held several well-attended and lively informal consultations and met with coordinators of regional and political groups to identify common ground on methodology and her programme of work for the Group’s session with Governments, regional groups, United Nations agencies, funds and programmes, non-governmental organizations, and indigenous peoples’ groups.
During that session, the Group successfully completed a first reading of the draft criteria proposed by the high-level task force, collecting views, proposing refinements and formulating proposals for additional criteria. The working group welcomed the launching of that process and acknowledged the need to further consider, revise and refine the daft criteria and corresponding subcriteria and to have experts contributing to the debate. The Group re-emphasized the importance of engaging further all relevant stakeholders.
The Group also recommended that the Human Rights Council: pursue its work with consideration of the draft operational subcriteria; request OHCHR to make available on its website and to the Group the comments and views submitted by stakeholders, and to prepare a document of all conclusions and recommendations; recommend the Chairperson-Rapporteur hold informal consultations with stakeholders in preparation of the Council’s fourteenth session; and, finally, invite the High Commissioner and request the Chairperson-Rapporteur to further encourage active participation of all stakeholders in its work.
At its recent session, the Council endorsed the recommendations of the Group, and she had already begun informal consultations with regional and political groups. She would be reporting on the outcome to the Group at its next session, scheduled to take place 6 to 10 May 2013. During this intersessional period, she would redouble efforts to encourage all delegations, United Nations system programmes, funds and agencies, international organizations, non-governmental organizations, and indigenous peoples’ groups to constructively engage in the review process, she said.
“Many might consider the concept of the right to development outdated,” she said. “It is my view, however, that it remains modern and relevant, given the multidimensional and global character of the challenges facing humanity today. The increased globalization of our economies and their interdependence underline the importance of international solidarity and cooperation in securing the future of all our countries and peoples.” The appropriation or reappropriation of the values that underlay the right to development would contribute towards a greater understanding of its multidimensional character and help the Group in its task of promoting implementation that was comprehensive, collective and concrete.
Special Rapporteur on Human Rights in Democratic People’s Republic of Korea
MARZUKI DARUSMAN, Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea, said his report was based on his visit to Thailand in late June, and on meetings held in Geneva, New York and Jakarta. As he had not been granted access to the country since his 2010 appointment, he regretted a “fresh approach” had not been forthcoming. An estimated 16 million people in the Democratic People’s Republic of Korea suffered from chronic food insecurity and high malnutrition, while slow economic growth and a “military first” policy would be detrimental to people’s welfare.
In Thailand, he had been briefed on the challenges associated with fleeing the country, abuse of asylum seekers by traffickers and detention of asylum seekers in transit countries. Overall, there had been “no sign” of improvement in the human rights situation of the country. Following the 2011 leadership transition, he had heard that authorities had detained officials suspected of questioning a smooth transition, as well as concerns that detainees would be subjected to forced labour, public execution and torture in political prison camps. In April, 40 non-governmental organizations had compiled information on some of the most horrific abuses in those camps. An estimated 150,000 to 200,000 people were imprisoned in six camps for alleged political crimes.
He also voiced concern at recent reports that authorities continued to impose severe restrictions on the rights to freedom of opinion, expression and assembly, and that, due to an ambiguous criminal code, the State could impose severe restrictions on those freedoms. It was disconcerting that such terms as “plunder”, “deception”, “defraud” or “hinders” were not defined anywhere in the code. Several of its provisions also stipulated punishment for acts that would normally not warrant criminal liability. Article 143, for example, outlined labour punishment for up to two years for an inspector who failed to inspect or repair equipment that led to damage or stoppage of production of any goods.
He said that according to his information, most people who left the Democratic People’s Republic of Korea were driven to do so by hunger and denial of equal access to basic civil, political, economic, social and cultural rights. No data was collected on persons fleeing the country, largely because the international community was unable to access exit points from the country or the transit zones. Numerous testimonies referred to deaths, disappearances and imprisonment before asylum seekers could reach a safe third country, as a result of capture and the high incidence of forcible return. Whatever peoples’ motivation for fleeing the country, it was important to provide them with protection.
In that context, he said the social structure in the Democratic People’s Republic of Korea revolved around “songbun”, under which there were three groups of people: core, wavering and hostile. The core class included those whose direct male ancestors had contributed to the Government’s founding, were considered “heroes” of the Korean War, or were party bureaucrats. Most people who fled the country belonged to the “hostile” class, and it could be argued that their departure was motivated by political persecution or due to their membership in a particular social group. Those who fled due to economic hardship could be refugees sur place. They might not fit the definition of refugees when they left their country, but they had become refugees subsequently, due to fear of persecution upon their return. It was a criminal offence for citizens to leave the country without permission, he added.
“There has been no improvement in the dire situation of human rights in the Democratic People’s Republic of Korea,” he said, noting that the abduction of foreign nationals remained unresolved. Some 500 reported cases of abduction of Koreans from the Republic of Korea were unresolved; they had been carried out following the ceasefire at the end of the Korean War. He also stressed the need for the Democratic People’s Republic of Korea to stand by its commitment to Japan to re-investigate the 12 pending cases of abduction of Japanese nationals.
Turning to his conclusions, he urged the Government to rethink its approach to the military first policy and reallocate resources to improve living standards. The international community must continue to provide humanitarian support, without making it contingent upon political conditions. Further, the Government must ensure the overall protection and promotion of human rights, as well as cooperate with the Office of the United Nations High Commissioner for Human Rights (OHCHR). Legislation, especially the criminal code, which was not in line with international standards, must be repealed. He also called on countries where the people of the Democratic People’s Republic of Korea were seeking refuge or transiting to adhere to the principle of non-refoulement, and abstain from forcibly returning persons seeking international protection.
When the floor was opened to questions and comments, speakers expressed grave concern at the deteriorating human rights and humanitarian situation in the Democratic People’s Republic of Korea. Several regretted that the Special Rapporteur had not been allowed to visit the country nor received cooperation from the Government. Others underlined Pyongyang’s failure to provide for its peoples’ nutritional needs, saying it should reverse its “military first” policy, and instead address that dire situation. Many urged Pyongyang to respect the fundamental rights of its citizens, with the European Union’s delegate noting that his delegation would present a draft resolution urging the Government to address such issues.
The Republic of Korea’s delegate shared the concern about asylum-seekers and refugees, urging respect for the fundamental principle of non-refoulement. He asked whether the Special Rapporteur would cooperate with other human rights mechanisms, including treaty bodies, and if so, how he would proceed in such work. He also drew attention to the issue of abductees, pressing the Democratic People’s Republic of Korea to resolve such problems.
Japan’s delegate urged neighbours to keep from returning persons fleeing persecution from the Democratic People’s Republic of Korea. He agreed on the need to rethink the “military first” policy and asked for further details. Japan had identified 17 Japanese citizens as abductees, a matter of grave concern, and he asked for the Special Rapporteur’s continued focus on that issue.
Still other speakers commended countries, including Thailand, for adhering to the principle of non-refoulement, asking what the international community could do on that issue. The representative of the Czech Republic asked if people responsible for today’s situation would be held accountable, and, further, about the possible creation of an investigative mechanism towards that end.
The representative of the Democratic People’s Republic of Korea categorically rejected the baseless allegations of previous speakers. His Government’s principled position to reject the Special Rapporteur’s mandate would not change. The report was a product of hostile policies by the United States and the European Union. After 2003, his Government had cooperated with United Nations agencies and had invited the Special Rapporteur on violence against women, among others, for a visit. “We have nothing to hide,” he said. The Government was proud of its system of promoting and protecting human rights. Such cooperation stopped in 2006 because the European Union had presented a resolution against his country.
China’s delegate supported constructive dialogue and cooperation, and opposed country-specific resolutions. She hoped a more constructive attitude would be taken, and that more attention would be given to social challenges, as well as the provision of humanitarian assistance. Those illegally entering China were not refugees. They had entered illegally because of economic reasons. China had always followed international law and had properly addressed that issue.
Also speaking in the discussion were the representatives of Belarus, United States, United Kingdom, Norway, Switzerland, Canada and Cuba.
Responding, Mr. DARUSMAN said, in the interest of time, he would focus on one or two issues. The most important approach of the international community was to encourage the Democratic People’s Republic of Korea to comply with the universal periodic review process. That was the most universal and most accepted means of allowing the international community to have dialogue with the country. The Chinese delegation had encouraged the Special Rapporteur to assist the Democratic People’s Republic of Korea in developing its human rights situation, yet it was the only country that had not complied with the universal periodic review procedures. So far, there had been no progress on the issue. That was where cooperation between the Democratic People’s Republic of Korea and OHCHR would be helpful and lead to further processes to improve the situation inside the country.
On the question of whether Internet facilities would make a difference to the country, he said they would instead lead to a “perfection of centrality” of the current system, so he did not see a potential opening, apart from overall reform processes, leading to betterment of the situation in the country.
“We may have to look into the overall approach to this problem, and that is to look at the problem as a long-term problem and not as a short-term problem, which in a way is reflected in the resolution so far,” he said, noting that, in spite of the challenges and hardships it was facing, including famine, it was not a country that was about to collapse. Therefore, measures aimed at short-term objectives might need to be reconsidered for a long-term process. In spite of the resisting policies of the Democratic People’s Republic of Korea, the international community could continue humanitarian aid to alleviate the crisis there.
Responding to the statement of the Democratic People’s Republic of Korea delegation, he said the role of the Special Rapporteur was to serve as a focal point. All information in his report had been through a process of compilation of information sourced within United Nations agencies, and other international organizations. “The report is what it is: the reporting of the state of play in the country in regard to the state of human rights,” he said.
Statement by Special Rapporteur on Cultural Rights
FARIDA SHAHEED, Special Rapporteur in the field of cultural rights, said her report focused on the enjoyment of cultural rights by women on an equal basis with men, “because I firmly believe that the realization of women’s cultural rights is pivotal to the realization of their human rights in general”. Her first key message, she said, was that the tendency to view culture as an impediment to women’s human rights was oversimplistic and problematic, diverting attention from the specific actors, institutions, rules and regulations that kept them subordinated within patriarchal systems and structures. “I am therefore proposing a paradigm shift: from viewing culture as an obstacle to women’s rights to one of ensuring women’s equal enjoyment of rights,” she said.
Her second key message was that it was not a struggle against culture, religion or tradition. From the human rights perspective, the critical issue was not whether and how culture, religion and tradition prevailed over women’s human rights, but how to ensure women owned both their culture and their human rights. Culture permeated all aspects of life, was in constant motion, and was always linked to power relations. Cultural rights related to who in the community held the power to define its collective identity. “At present, gender discrimination is so frequently defended by reference to culture, religion and tradition that it could be said that no social group has suffered greater violation of human rights in the name of culture than women. Many such practices would not be tolerated were they predicated upon other protected classifications, such as race, for example,” she said.
Third, she was deeply concerned by discourse that viewed cultures as static and historical, challenging the universal legitimacy and applicability of human rights norms. Under human rights law, no one could invoke cultural diversity to infringe upon or limit human rights, she said. “Cultural identities are informed by a multitude of factors that include beliefs and convictions, knowledge, and the arts, but also economic, social and political engagements; urban/rural locations’ wealth or poverty; professional training; and historical contexts, as well as gender,” she said, adding that identities were in a constant state of flux.
All individuals simultaneously belonged to multiple, diverse and changing communities, she said, leading to her fourth point: it was vital not to force individuals to identify themselves in terms of a singular aspect of their identity, such as being female, or of a particular ethnic, religious or linguistic background. Protecting multiple identities helped resist and overcome political and other forces which sought to deny any possibility of pluralism within self and society. “The cohesions of a specific cultural community – be it transnational, national or subnational – should not be achieved to the detriment of one group within the community, especially women,” she said.
Combating cultural practices detrimental to human rights did not jeopardize the existence and cohesion of a specific cultural community, she said. Instead, it stimulated discussions that facilitated an evolution towards embracing human rights. “It is time for women’s perspectives, concerns and contributions to move from the peripheries to the centre of the processes that create, interpret and shape culture,” she said, calling for States to take all necessary measures to ensure that women were vested with authority to reshape all communities they desired to be a part of, or create.
However, merely asserting the principle of “equality” was insufficient, she said. Effective implementation of human rights standards required measures that transformed the text of legislation into living reality; in the field of cultural rights, the principle of equality needed to transcend law and be embraced by society. “Human rights practice must provide protection from imposing outsiders’ ideologies, but also act to overcome community practices and norms that perpetuated women’s subordination,” she said. “This demands close cooperation between all relevant State and non-State actors in society.” In her report, she proposed a set of questions to be asked whenever gender-biased social arrangements were defended in the name of culture. It also made a number of suggestions to States to assess the level of implementation of cultural rights of women on the basis of equality, she said.
When the floor was opened to questions and comments, representatives of the European Union and Cuba asked, given that practices were deeply entrenched in culture, how States could move forward to achieve the goal of ensuring women enjoyed equal cultural rights.
Responding, Ms. SHAHEED said her report outlined very specific questions that needed to be answered: some concerned dress, education or opportunities. One of the key things in ensuring equal opportunities in all aspects of cultural life was for women to take part in leisure, culture and sports activities. It was also important to ensure that women contributed to the writing of history. It was also important to provide legitimacy to the voice of women claiming their rights, so they could negotiate and change the reality. Collecting existing practices was also important; she had found there was a lack of adequate documentation of best practices.
There was also a need in all States for serious support for women’s own initiatives, particularly at the grass-roots level, and to also involve young males and females in the discussion on the cultural rights of women. Finally, much of the action denying women their cultural rights came from non-State actors, and States must change that situation on the ground, she said.
Working Group on Human Rights and Transnational Corporations
PUVAN J SELVANATHAN, head of the working group on the issue of human rights and transnational corporations and other business enterprises, stressed the need for any modern understanding of human rights to reflect the interdependency of traditional State responsibilities and businesses as wealth creators, contributors to peace and development, and providers of solutions to sustainable development challenges. Overall, commerce’s contribution to civilization was overwhelmingly positive, he said, though he added that it also had negative impacts on human rights and the environment. Going forward, any approaches to actions and efforts in addressing global challenges, including establishing sustainable development goals and the post-2015 development agenda needed to be actively informed by this interdependency.
The Guiding Principles on Business and Human Rights had been unanimously endorsed by the Human Rights Council, he said, adding that they had since gained support of the United Nations system, as well as the business community and civil society. The Guiding Principles affirmed States’ existing duties with regard to the protection of human rights in the context of business activities and elaborated on the legal and policy implications of those duties. They also set out businesses’ responsibilities on human rights and established a global authoritative standard. They represented a reward for decades of effort by the United Nations to address the issue of human rights and business, and provided a common framework for multi-stakeholder collaboration to prevent and mitigate negative human rights impacts, while increasing State and business accountability. Concrete actions by States and businesses were now needed to build on a solid foundation and establish a set of behavioural norms that would actively seek to prevent human rights harm and to provide remedy when such harm did occur.
Mr. Selvanathan said the working group’s strategy promoted implementation by States and reinforced convergence of other standards around the Guiding Principles, while embedding the Guiding Principles in key global governance frameworks. Since their endorsement, there had already been some important progress and initiatives, with the Association of Southeast Asian Nations (ASEAN), the European Union and the Organisation for Economic Co-operation and Development (OECD) among institutions taking important steps. Further action would seek to engage the African Union and Organization of American States, as well as other key actors, he said. In addition, regional organizations, civil society and business organizations had mobilized to create tools to support implementation of the Guiding Principles and he looked forward to collaborating with them to produce coherent tools that aligned with the Guiding Principles.
He pointed to a report of the Secretary-General on the role that the United Nations could play in advancing the business and human rights agenda and he called on Member States to contribute to United Nations efforts to implement the report’s recommendations, particularly those related to capacity-building. More work was needed to ensure that State and business practices changed to address gaps that left individuals and communities without access to recourse if their rights were negatively affected by business activities. It was important to improve staff awareness and overall capacity and the working group could provide guidance and assistance in developing initiatives that facilitated peer learning and national plans of action.
He said the working group had recently visited Mongolia on its first country visit. There it had learned first-hand about the real life opportunities and challenges for the State and businesses in applying the Guiding Principles, particularly with regard to the mining boom. At the end of the visit, the working group had made recommendations on steps that stakeholders could take towards implementation of the Guiding Principles to reduce the impact of the mining boom on human rights. He also highlighted the Forum on Business and Human Rights to be held in Geneva in December, calling it a unique opportunity for States, businesses and civil society to share and learn from others’ experiences, identifying challenges and discussing potential solutions.
When the floor was opened for questions and comments, many speakers stressed their support for the working group, with some underlining the need for accelerated implementation by States and enterprises of the Guiding Principles. Some outlined national efforts to implement the Guiding Principles and asked about sectors that should be priorities for their implementation.
In that context, Norway’s delegate said embedding the Guiding Principles across the activities of the United Nations system required a “fresh look” at all relevant policies and procedures. He asked about examples regarding the mainstreaming of human rights and business issues.
Switzerland’s delegate supported field missions, such as those in Mongolia, as a key instrument of the working group.
Russian Federation’s delegate asked for ideas on disseminating the Guiding Principles, including to vulnerable groups, so people could tap into legal and administrative measures to exercise their rights.
The representatives of the European Union and the United States also spoke.
Responding, Mr. SELVANATHAN focused on the integration of agencies and others in Government so they could act in concert as regards human rights policies and engaging with the private sector. There must be more coherence around how Governments dealt with businesses.
As for the United Nations, he said mainstreaming such issues across agencies was a challenge, as each agency or entity had a different mandate. But, looking at subsets – such as women’s rights or labour rights – provided a strong precedent on how normative values could be brought into focus. He believed the business and human rights agenda could be addressed in a similar vein.
He went on to say that transnational corporations operated supply chains that tied into a single corporate policy. States acting in concert with each other, or regional blocks – such as ASEAN or the European Union - was where thinking was coalescing. In terms of priorities and challenges of the working group, he said the key challenge was raising the awareness by constituencies – including businesses and civil society players – on how they would use the Guiding Principles to inform their practices and engage in dialogue with States.
Statement by Special Rapporteur on Truth, Justice, Reparation
PABLO DE GREIFF, the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, presented his first report in accordance with Human Rights Council resolution 18/7. The report sought to make a contribution to the ongoing debates on the rule of law at the General Assembly, and also, to use that platform to raise awareness of the significance of the four measures, namely truth, justice, reparations and guarantees of non-recurrence, and to strengthen support for them globally. He commended Member States for producing a text that adopted a comprehensive understanding of the rule of law and that reaffirmed the interrelationship between human rights, democracy, and the rule of law. He was particularly “heartened” that the mandate made explicit reference to transnational justice, the fight against impunity, and that it mentioned both prosecutions and truth-seeking processes explicitly. It was the first mandate of the United Nations that comprehensively looked at the questions of how to deal with the legacy of past gross human rights violations and serious violations of international humanitarian law.
He summarized the contents of his report, through which he attempted to provide an account of the ways in which the implementation of the four measures under the mandate contributed to the rule of law. He called truth commissions “powerful catalysts of rule of law institutional reform.” Truth commissions had the potential to reconstitute a space in which those that violence had tried to make invisible, or at least silent, could exercise their capacity for agency and assert their status in society as rights holders. Furthermore, removing personnel who had been involved in gross human rights violations not only spared victims and others from having to deal again with those who abused them, but also contributed to dismantling networks of criminal activity. Such vetting measures would signal to others that institutions and their leaders were committed to fundamental rights norms in their decisions, including in the areas of hiring, promotions, and dismissals.
Providing reparations to victims was a way of satisfying one of their rights and a way of satisfying a series of obligations of the State, including the provision of effective remedies and fair and equal treatment under the law, he said. Reparations were not merely a manifestation of particular rights, but could also enable the exercise of other rights. The restitution of citizenship and other rights including, for example, having an unjustified criminal record expunged, could have profound effects on the future opportunities of individuals. Similarly, material reparations could make the difference between being able to resume education and training or being condemned to a life of deprivation. In cases of gross violations of human rights and serious violations of international humanitarian law affecting gender, ethnic, religious, or other groups in particular, massive reparations programmes could have an inclusive “redress effect,” which strengthened the notion of law and the protection it afforded.
Criminal prosecutions for systemic abuses gave life to the principle of the sovereignty of law and of the relation principle of equality. “No one, regardless of rank or status, is above the law,” he said. The report also emphasized that there was a reflexive dimension to the rule of law; that is, that measures meant to strengthen it were perforce required to abide by the very same principle. With agreements expressed in the Declaration of the High-level Meeting and its endorsement of a rich understanding of the rule of law, it might be thought that, in wanting to promote the significance of the implementation of the four measures under his mandate, he was “pushing a door” that was already open. However, despite progress, there was no room for complacency. Country experiences had not come about without effort, or even struggle, always carried foremost by victims. There was often resistance or reluctance to the implementation of the measures on the part of Governments, including the tendency to trade off one measure against another.
Many countries that had undergone periods of repression, conflict and systemic rights abuses, had found that purely formalist understanding of the rule of law provided greatly ineffective protection of persons. Hence, it was important to reach agreement not just about a robust notion of the rule of law, but about how best to give it institutional expression at the country level and to support these efforts at the international level. Trust in institutions rested upon evidence that power was effectively regulated, that people were treated equally, and that they had recourse when they were not. The measures under the mandate he was holding strived to contribute to recognizing past abuses, not for the sake of the past, or any particular group, but because part of what it meant to live under the rule of law required making sure that past violations were properly redressed. Lastly, he hoped that as Member States and other stakeholders discussed the post-2015 development agenda, a robust understanding of the rule of law would be included in that discussion.
When the floor was opened for questions and comments, speakers thanked the Special Rapporteur for his first report to the General Assembly, stressing that they supported his mandate and that truth, reparations, justice and non-recurrence were complimentary dimensions that required equal focus. Many delegates also underlined the importance of integrating a gender perspective into human rights instruments. “Women play a leading role in favour of human rights”, said Chile’s delegate, commending the Special Rapporteur for taking that issue into consideration.
Morocco’s delegate asked what had been done on the issue of technical assistance and about plans to help countries requesting such assistance in setting up justice commissions. He fully supported a victim-oriented approach to transitional justice, as well as a gender approach in addressing reparations. He emphasized that each country had its own experience and the Special Rapporteur should be guided by that specificity.
Other questions centred on how the Special Rapporteur would underline the need to reinforce the links both among the four pillars, and between those pillars and development. Delegates asked for details on how the United Nations could best contribute to the rule of law by supporting transitional justice measures.
Also speaking were the representatives of the European Union, Switzerland and Norway.
Responding, Mr. DE GREIFF focused his remarks first on the interest expressed in his mandate. Because the mandate was new, and thematically broad, he had proposed to start with a series of consultations at the regional and subregional levels. In two weeks, he would hold the first regional consultation. In the second week of December, Argentina would host a consultation for countries in Latin America. Those would be the first of a total of five such consultations to explore the possibilities for the mandate and gather information on how countries had redressed massive violations. After that, he would carry out a number of country visits, and eventually, provide advisory and technical services.
As for victim participation, he called “remarkable” the degree that transitional measures had underserved the interests of women and marginalized communities. That was especially surprising, given women’s significant role in the tasks leading to the creation of transitional justice measures, as well as the huge impact that human rights violations and authoritarianism had had on women. Some countries had ample experiences in how such measures could better protect women’s rights. He cited Morocco’s experience with reparations for women, in that regard. Among the first tasks was to systematize past experiences.
As regards thematic priorities, including the notion of national ownership, he said one priority area related to the links among the four areas of the mandate. It was fundamentally important to work on those links, not least in order to stem the tendency of Governments to consider those four elements separately. The second area of fundamental importance related to improving the effectiveness of measures, while the third area of concern centred on enhancing the impact of measures by more effectively establishing the links among the four areas of the mandate. One challenge lay in ensuring those pillars were not isolated, one-off events. There was a great deal of work to do to move from agreement about the texts to real implementation at all levels.
Statement by Special Rapporteur on Human Rights Defenders
Ms. SHAHEED delivered the statement on behalf of MARGARET SEKAGGS, Special Rapporteur on the situation of human rights defenders, who outlined how the use of different types of legislation impacted the activities of human rights defenders based on reliable reports indicating that recent legislative moves in a number of Member States contributed to a more restricted working space for defenders. Human rights defenders, like other individuals, must not be prosecuted based on anything else than what would constitute a violation of the law. The legislation itself needed to specifically indentify what constituted an offense and not leave room for individual interpretation and inconsistent application. “Stigmatization” of human rights defenders by Government officials and members of the judiciary made that hard to achieve. Anti-terrorism legislation had risen to prominence in the last decade amid increasing concerns about public security, she said, adding that human rights defenders continued to be detained, arrested, prosecuted, and harassed by Governments under the guise of the enforcement of anti-terrorism legislation.
Freedom of expression had suffered setbacks in a number of Member States where the Government had sought to regulate social media and other new forms of communication. Arrest, detention and prosecution procedures under anti-terrorism legislation and other legislation relating to national security tended to limit access to persons prosecuted under such legislation and to information justifying their arrest. Access to persons detained under such circumstances was of vital importance in order to protect the rule of law, and human rights defenders played a key part in that sense. Legislation relating to public morals had considerable implications for human rights defenders working to combat discrimination, on issues relating to sexual orientation and gender identity, and on sexual reproductive rights. The situation of defenders working to promote and protect the human rights of lesbian, gay, bisexual and transgender persons continued to be volatile, given that same-sex relations between consenting adults were currently criminalized in more than 75 countries worldwide. Associations that promote such rights had faced restrictions for having handed out information about abortion and referred women to appropriate medical facilities.
She called upon Member States to repeal laws criminalizing unregistered associations working towards the realization of human rights, adding that it should be up to the associations themselves to decide whether to register. In addition, she warned against new developments that not only restricted the thematic areas upon which associations were permitted to work, but also granted authorities extensive powers to supervise the activities of associations, including management of decisions and the release of confidential documents. Under the guise of protecting national sovereignty or national interests, some States had enacted legislation that outlawed associations working to defend political rights or engaging in political activities if they received foreign funding.
Welcoming the development in recent years in a number of States passing legislation to guarantee the right of access to information held by public authorities, she said there remained a need to harmonize such legislation with official-secret legislation, which was used to classify and withhold information that could harm public security. Human rights defenders, including journalists, should never be held liable for publishing or disseminating information. In rare cases, some information could be withheld from the public if its dissemination represented a risk to national security and public health, among others.
She called on Member States to decriminalize defamation, as criminal prosecution for defamation inevitably led to censorship and hindered expression of dissent. In addition, she called on States to ensure that penalties for defamation under civil law were limited in order to ensure proportionality. In several Member States, statements that undermined religion or called religious laws and rulings into question were punished severely by blasphemy legislation. The Internet served as a means of sharing information about human rights and human rights violations and connecting with other human rights defenders. She expressed disappointment at the broad restrictions applied to Internet access in numerous Member States, including to blogs, news providers and social networks. She was concerned that personal information about human rights defenders was obtained through social networking and other websites, potentially compromising their security.
There was an overarching need for Member States to pay close attention to the principles which had been developed to ensure human rights and the rule of law were upheld. The principle of legality provided all legislation to be clearly defined, determinable and non-retroactive. According to the principle of necessity, the State had to show that the desired result was necessary and that the law in question was the best available means of achieving that result. The principle of proportionality ensured that the impact of the restrictions be proportionate, and the harm of the restrictions could not outweigh the benefits derived from applying the restrictions. Procedural safeguards, including time limits for investigations and the obligation to inform suspects that they were under investigation, were designed to prevent the use of unreliable evidence and to oblige prosecutors to consider evidence impartially. Lastly, she emphasized the role of judges in ensuring that procedural safeguards were respected and underlined their obligation under international law to ensure fundamental rights were enjoyed without discrimination.
Statement by Special Rapporteur on Housing
Next, Ms. SHAHEED delivered the statement by 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. Over the last three years, it had become clear that the prevalent housing paradigm – based on the concept of housing as a financial asset – had disproportionately affected the poor, and it was still being implemented throughout the world. Housing finance was a pillar of the hegemonic housing policies in developed and developing countries alike.
Indeed, most housing finance polices were based on the premise that the housing market, if properly regulated, was able to ensure access to adequate and affordable home ownership. “This is a misconception that has been proven false by recent crises”, she stressed. As such, her report analysed housing finance polices from a “right to adequate housing perspective”, with a particular focus on the poor. Three areas had drawn her attention: polices to increase the scale of mortgage lending for low-income borrowers; policies to provide capital subsidies to low-income groups as a means to support entry into housing credit markets; and microfinance policies for housing construction or improvements.
Having examined the impact of those policies around the world, “I can conclude that they have largely failed to promote access to adequate housing for the poor”, she said. Housing finance policies based on credit were inherently discriminatory against lower-income households in that they required the poor to pay much higher prices for financial services, thus exposing them to financial risks inherent in global financial markets and indebtedness. That was especially evident in the context of predatory lending. In addition, housing finance policies focused solely on affordability, while failing to address the broader aspects of location, access to infrastructure, habitability and security of tenure.
She had found most striking that, while housing finance policies had been promoted as a solution for the poor, they had consistently failed to reach the poorest of the poor. The simple truth was that housing credit was not affordable to those who did not work. She was especially concerned that the focus on the financial aspects of housing had led to a “one size fits all” policy of home ownership distributed by the market. Housing finance could be an important part of a housing strategy, but it could not be the only, or the main, policy.
To comply with their international human rights obligations, States must constantly assess the compatibility of housing policies against the progressive realization of the right to adequate housing without discrimination. She urged that broader policies be adopted as related to public investments in infrastructure, human settlements upgrading, and urban planning to increase access to urbanized land for the poor. In sum, a mixture of tenure solutions was essential for the promotion of access to adequate housing in order to shield the housing sector from economic and financial shocks.
Statement by Special Rapporteur on Trafficking in Persons
Next, Ms. SHAHEED delivered the statement by JOY NGOZI EZEILO, Special Rapporteur on trafficking in persons, especially women and children, said she dedicated her report this year to the issue of human trafficking in supply chains, in order to examine different ways it manifested itself in the global economy and to offer recommendations to effectively and sustainably combat it. The report underscored that States were the primary duty-bearers, and thus had an obligation under international human rights law to protect against abuses within their jurisdiction by third parties, including business enterprises. Her report also examined some national laws and other measures designed to prevent and combat trafficking in supply chains, she said.
Businesses were powerful actors increasingly associated with a responsibility to respect human rights, as evidenced by the recent endorsement by the Human Rights Council of the Guiding Principles on Business and Human Rights, she said. In addition to non-binding frameworks and guidelines at the international level, there were numerous voluntary initiatives; the recognition of the close link between businesses and human trafficking also led to the development of voluntary codes of conduct, such as the Athens Ethical Principles and the accompanying Luxo Implementation Guidelines. But while these initiatives were positive and encouraging, there were significant challenges to their impact, such as lack of effective and independent monitoring.
Influential stakeholders, such as consumers and the media, also played a role in the fight against human trafficking in supply chains. “Ethical consumerism and other consumer-targeted initiatives, such as product certification and labelling, are powerful ways to influence corporate behaviour. The media also has great potential to positively contribute to preventing and combating trafficking in supply chains by publicly naming and shaming States and/or companies directly linked to trafficking and increasing public awareness of the issue,” she said.
A broad strategy based on cooperation among all relevant actors was crucial to effectively address human trafficking in supply chains in a sustainable manner, she said. States should adopt laws and initiatives that encouraged greater corporate compliance with the responsibility to prevent and combat the practice, such as tax incentives, product certification and labelling, and requirement for disclosure of information about measures that companies had taken to prevent and combat human trafficking in supply chains. “I also recommend businesses to, among other things, conduct a risk assessment for their entire production chain and, on that basis, develop and adopt high-level, company-wide policies or strategies to eliminate risks of human trafficking in their supply chains, and implement an effective monitoring system, such as social audits, to scrutinize the risks of human trafficking at all levels of the supply chain,” she said.
Since the her last report to the Assembly, she had visited the United Arab Emirates and Gabon, and would present full reports on those visits to the Human Rights Council in June 2012. “Trafficking in persons requires a multidisciplinary and multi-stakeholder response, and no single country or entity can combat it alone. I look forward to further strengthening cooperation and partnership with Member States in promoting the effective implementation of the international efforts to end trafficking,” she said, urging all Member States and other stakeholders to renew their commitment to concertedly “fight this heinous crime”.
* *** *