The true test of the world’s human rights machinery was not found in lofty visions and goals, but in the lives of ordinary people struggling to work, eat and stay healthy, the Third Committee (Social, Humanitarian and Cultural) was told today during a day-long discussion on the promotion and protection of human rights.
The committee heard from four prominent human rights officials -- the High Commissioner for Human Rights and three United Nations experts on migrant workers, food, and physical and mental health -- as well as the Secretary-General’s Special Adviser, who introduced a report on human rights in Myanmar.
Reporting on her first year heading up the Office for the High Commissioner for Human Rights, Navi Pillay said that during the year-long commemoration of the sixtieth anniversary of the Universal Declaration of Human Rights, which culminated on 10 December 2008, people from around the world had told her “they want these rights to be translated into reality”.
"They look to States and to the United Nations to do that, and the activities of my Office are all designed in different ways to bring these rights to life”, she said, emphasizing that the real measure of success of international agreements like the outcome document from April’s Durban Review Conference against racism, racial discrimination, xenophobia and related intolerance was that they made a true difference in the lives of men and women.
To that end, her Office had consistently advocated a human rights approach in response to the global food, financial and economic crises, and climate change. It was also advocating inclusion of human rights in national policies aimed at alleviating poverty and in implementing the Millennium Development Goals.
After a year on the job, she better understood the challenges countries faced in implementing human rights standards and the challenges of mainstreaming those rights. She was also more familiar with the tremendous potential of the United Nations to facilitate the realization of human rights around the world. Indeed, efforts to strengthen international human rights mechanisms and to support the progressive development of international human rights law now benefited from the work of 39 special procedures mandate holders, and she called on all countries to fully cooperate with them.
Both the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover, and the Chairperson of the Committee on the Protection of Migrant Workers and Members of their Families, Abdelhamid El Jamri, stressed that gaps in protecting the rights under their mandates made individuals more vulnerable to violence and sickness.
Migrant workers -- particularly the undocumented -- were often considered to be a source of cheap labour that was docile and flexible enough to accept dangerous working conditions that nationals would not. In medical care, informed consent, though often enshrined in national legal frameworks, was frequently compromised in the health care setting due to power imbalances that disproportionately affected women, the elderly, indigenous peoples, persons with disabilities and persons living with HIV, among others.
To address these gaps, States should, in the first case, ratify the Convention on Migrant Workers, which would lead to better migratory policies, and in the second case, do more to evaluate whether they were meeting their obligations to safeguard informed consent as part of the right to health.
Olivier de Schutter, Special Rapporteur on the right to food, noted that there were a billion hungry people in the world, even though more food than ever before was being produced. For too long the world had focused on increasing food availability, while neglecting questions of food distribution and food production. Although market distortions created by limited access and subsidies were unacceptable, freer trade would bring more challenges, such as the increased “dualization of farming”, with large producers benefiting more than smaller producers.
The means of realizing the right to food more fully, therefore, were not simple. But, he had increasingly come to realize the central nature of sustainable food production in that endeavour. The single most important thing he had achieved in his mandate was his work with the Food and Agriculture Organization to reform the Committee on World Food Security, creating a global strategic framework that would hold States accountable on their achievement of the right to food.
Earlier in the day, the Committee also considered the human rights situation in Myanmar, hearing from the Secretary-General’s Special Adviser, Ibrahim Gambari, who said a process of national reconciliation and democratic transition based on dialogue and rooted in the respect for human rights and mutual understanding offered the best prospect for overcoming Myanmar’s political stalemate and armed conflict.
He stressed that the credibility of the political process would remain in doubt unless three immediate concerns were addressed: the release of all political prisoners and their free participation in the political life of their country; a genuine dialogue between the Government and opposition and ethnic nationality groups; and the creation of conditions conducive to inclusive and credible elections
In response, the representative of Myanmar stressed that the Government was taking steps towards holding the elections and would soon form an independent election commission, in addition to other important steps. In the final analysis the Government of Myanmar and its people would fashion their own destiny.
The Committee will meet again at 10 a.m. Thursday, 22 October, to hear statements from the Special Rapporteurs on the situation of human rights in Myanmar, the Democratic People’s Republic of Korea and the Palestinian territories occupied since 1967.
In the afternoon it is expected to hear from the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises and the Special Rapporteur on the independence of judges and lawyers.
The Third Committee (Social, Humanitarian and Cultural) met this morning to resume its consideration of the “promotion and protection of human rights” and to begin its joint consideration of “Human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms” and “Human rights situations and reports of special rapporteurs and representatives”.
The Secretary-General’s report on situation of human rights in Myanmar (document A/64/334) describes the outcome of his visits to the country on 3 and 4 July, at the invitation of the Government. It describes the outcome of visits by the Special Adviser on Myanmar, Ibrahim Gambari, who also visited the country from 31 January to 3 February and on 26 and 27 June, before accompanying the Secretary-General on the July visit.
The report says that discussions focused on five key areas, as endorsed by the Group of Friends of the Secretary-General on Myanmar and in the Security Council: the release of all political prisoners, including Daw Aung San Suu Kyi; the need for an all-inclusive, substantive and time-bound dialogue; the need to create conditions conducive to a credible process of political transition to civilian and democratic government; improving socio-economic conditions; and regularizing the good offices process between Myanmar and the United Nations.
The Government of Myanmar enacted two prisoner amnesties during the reporting period, the report says. It announced that it had released 9,002 prisoners in September 2008 and 6,313 prisoners in February 2009. Those amnesties applied to several political prisoners whose releases were urged during Mr. Gambari’s visits. At the same time, however, the Government also imposed lengthy prison terms on individuals connected to the protests of 2007 against the Government, at which around 400 people were arrested.
On 14 May, the report says the General Secretary of the National League for Democracy (NLD), Daw Aung San Suu Kyi, was charged with violating the terms of her house arrest, based on the intrusion of an American national on her property, from 3 to 5 May. She pleaded not guilty to the charges, maintaining that she had not broken the law. She was sentenced on 11 August 2009 to three years of hard labour, a sentence that was commuted immediately by the Government to 18 months of house arrest.
The Government of Myanmar has expressed its determination to proceed with multiparty elections by 2010, the report says. But, the Secretary-General continues to emphasize that only a credible and inclusive political process could advance the prospects for democracy.
The report of the Special Rapporteur on the situation of human rights in Myanmar, transmitted through the Secretary-General (document A/64/318), discusses the trial of Daw Aung San Suu Kyi, noting that the additional 18-month house arrest bars her from actively participating in the 2010 elections. The Special Rapporteur considers the continuation of her house arrest a blow to the Government’s seven-step road map to democracy.
While the Special Rapporteur announced in his reports to the Human Rights Council and to the General Assembly that his primary task was to cooperate with the Government in the realization of the human rights of the people of Myanmar, he also stated that, if after some time, there was no sign of any result in the horizon, he might consider changing strategy. In that respect, he has recommended four core human rights elements to be completed before the elections in 2010: a review of national legislation in accordance with the new Constitution and international obligations; the progressive release of prisoners of conscience; the reform of the armed forces to ensure respect for international human rights and humanitarian law, including training; and the establishment of an independent and impartial judiciary.
The Special Rapporteur recommends a repeal of discriminatory legislation in Northern Rakhine State, where a large part of the Muslim community has been deprived of citizenship, movement and other fundamental rights for many years. In areas affected by internal conflict, particularly in Kayin State, he reiterates that direct attacks against civilians not participating in the hostilities is prohibited. He recommends that the Government refrain from the use of forced labour of civilians (portering), particularly in Kayin State. In this regard, the Special Rapporteur recommends that the Government engage with the International Labour Organization (ILO) to ensure compliance with prison labour policy concerning forced or compulsory labour.
Also, the Special Rapporteur stresses the lack of independence and impartiality of the judiciary in Myanmar. The judiciary has delivered hundreds of harsh sentences against prisoners of conscience, applying laws that might be contradictory to human rights standards. He recommends that the Government seek international technical assistance, with a view to establishing an independent and impartial judiciary that is consistent with international standards and principles. In this respect, the Chief Justice accepted the recommendation to engage with the Special Rapporteur on the independence of judges and lawyers, a decision that has to be pursued.
Since Myanmar is party only to the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women, the Special Rapporteur strongly recommends that it accede to the other core international human rights instruments.
The Committee also had before it the Secretary-General’s report on strengthening the role of the United Nations in enhancing the effectiveness of the principle of periodic and genuine elections and the promotion of democratization (document A/64/304), which describes the activities of the United Nations system in providing electoral assistance to Member States over the past two years.
[United Nations electoral assistance is provided only at the request of a Member State or on the basis of a resolution of the Security Council or the General Assembly. Over the past 20 years, the United Nations has provided electoral assistance to 104 Member States and four Territories.]
The report indicates that the demand from Member States for United Nations electoral assistance remains high, with assistance provided during the reporting period to 52 Member States, eight of them on the basis of a Security Council mandate. An increasing number of Member States are using elections as a peaceful means to discern the will of the people, build capacity among newer democracies to administer credible elections, and increase South-South cooperation among electoral administrators. Yet, a number of challenges have emerged, including the potential for elections to be overshadowed by political discord or violence; concerns regarding the cost of elections and sustainability; and the need to ensure coordination and cohesion and safeguard United Nations impartiality.
According to the report, there is a need to: make sustainability and cost-effectiveness more central in the design and provision of electoral assistance; consider additional measures to ensure that elections contribute to peace and good governance, not violence or instability; and increase the use of special or more flexible administrative procedures, with safeguards and controls, for electoral projects in a crisis situation or under a Security Council mandate. It suggests reiteration of the United Nations focal point’s role to ensure coordination and consistency, as well as appropriate relationships with regional and intergovernmental organizations, and notes that the United Nations must continue to support electoral programmes that facilitate the participation of women and seek to ensure the rights of minorities and marginalized groups.
Also before the Committee was a note by the Secretary-General transmitting the report of the Special Rapporteur on the human rights of migrants (documents A/64/213 and Corr.1). Submitted in accordance with Assembly resolution 63/184 and Human Rights Council resolution 8/10 by Special Rapporteur Jorge Bustamante, the report summarizes his activities from January 2008 to June 2009. It highlights a number of issues related to the human rights of migrants, including the protection of children in the context of migration, as well as several good practices and some of the major challenges.
Among the report's conclusions are that immigration laws and policies should include concrete regulations aimed at protecting the rights of the child in the context of migration and fulfilling their specific needs in migration-related circumstances. States are also encouraged to consider the impact of migration on children in elaborating and implementing national development frameworks, poverty-reduction strategies, human rights action plans, and programmes and strategies for human rights education and the advancement of children's rights. In the context of the current economic crisis, States should pay particular attention to preventing human rights abuses against migrants and avoid unreasonable restrictions on labour migration.
The Committee also had before it a note by the Secretary-General by which he transmitted the report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (document A/64/272). Submitted in accordance with Human Rights Council resolution 6/29 by Special Rapporteur Anand Grover, the report says that guaranteeing informed consent is fundamental to achieving the enjoyment of the right to health through practices, policies and research that are respectful of autonomy, self-determination and human dignity. An enabling environment that prioritizes informed consent links counselling, testing and treatment, creating an effective voluntary health-care continuum.
According to the report, structural inequalities exacerbated by stigma and discrimination mean that individuals from certain groups are disproportionately vulnerable to having their informed consent compromised. Safeguarding that consent along the health-care continuum is an obligation placed on States and third parties engaged in respecting, promoting and fulfilling the right to health. It requires States to ensure that information is fully available, acceptable, accessible and of good quality, and imparted and comprehended by means of supportive and protective measures, such as counselling and involvement of community networks, especially for vulnerable groups.
A report of the Special Rapporteur on the right to food, transmitted through the Secretary-General (document A/64/170), says that violations of that right stem largely from lack of access. It also stems from insufficient income for the poorest, including smallholders. Guaranteeing food security in the future requires that the international community protect crop-genetic diversity. States should promote innovation in both the commercial seed system and in farmers’ seed systems, ensuring that innovation in both systems works for the benefit of the poorest and most marginalized farmers, particularly in developing countries.
To ensure that intellectual property rights and seed policies at the national level are compatible with the realization of the right to food, the Special Rapporteur recommends that States work on implementing farmers’ rights as defined in the International Treaty on Plant Genetic Resources for Food and Agriculture. Established under the Food and Agriculture Organization (FAO), the Treaty currently has 120 States parties.
In addition, the Special Rapporteur says States should consider using antitrust legislation to combat the risk of seed companies setting prices that are unjustifiably high and unaffordable for poor farmers. For countries that had not yet done so, they should prepare right-to-food impact assessments prior to implementing the Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement. States should ensure that protection of plant breeders’ rights does not discourage innovation in the name of rewarding it, by introducing barriers to the use of patented material.
The Special Rapporteur also recommends that States support and scale up local seed exchange systems, such as community seed banks and seed fairs. They should establish mechanisms to ensure active participation of farmers in decisions related to the conservation and sustainable use of plant genetic resources, particularly in designing laws that strike the right balance between the development of commercial and farmers’ seed systems. Donors and international institutions are encouraged to support efforts by developing countries to establish a regime for the protection of intellectual property rights that suits their development needs and is based on human rights.
Statement by High Commissioner for Human Rights
NAVI PILLAY, United Nations High Commissioner for Human Rights, described the views she had heard from ordinary people during the year-long commemoration of the sixtieth anniversary of the Universal Declaration of Human Rights, which culminated on 10 December 2008. “They want these rights to be translated into reality. They look to States and to the United Nations to do that, and the activities of my Office are all designed in different ways to bring these rights to life.”
Her first great challenge in that endeavour was the Durban Review Conference against racism, racial discrimination, xenophobia and related intolerance. Held in April, it concluded successfully with the adoption of an outcome document representing the consensus of 182 States. The document renewed the much-needed commitment of States to combat racism. But, the real measure of success was that it made a true difference in the lives of men and women, and she urged States to take action to that end. As a follow up, the Office of the High Commissioner established an internal task force to strengthen work on racism and intolerance. The goal was to enhance collaboration with other United Nations entities. She said she looked forward to the General Assembly’s endorsement of the outcome document and allocation of necessary resources for follow-up work.
She said eliminating discrimination -- including against women -- was one of the six thematic priorities for her Office in the next biennium. In light of that, her Office had encouraged the Human Rights Council to include on its agenda the human right dimension of maternal mortality and that it consider a potential future special mechanism on equality before the law. Gender advisers had been, or would be, deployed to a number of United Nations human rights regional offices and the New York office.
The Office had also commissioned an in-depth gender evaluation, and it would work to ensure coordination between the forthcoming United Nations gender entity and relevant human rights mechanisms. Welcoming the adoption of Security Council resolution 1888 (2009) on protecting women and girls from sexual violence in armed conflict, and resolution 1889 (2009) on peace, women and security, she added that the Office had devoted considerable effort to the issue of prosecution of sexual violence in the context of armed conflict.
She had been pleased, as well, to present for opening for signature the Optional Protocol on Economic, Social and Cultural Rights in September. Her Office had consistently advocated a human rights approach in response to the global food, financial and economic crises, and climate change. It had joined the Secretary-General’s High-level Task Force on the food crisis at the request of the Human Rights Council. The High Commissioner herself participated in the June conference on the financial and economic crisis. The Office had recently completed a study on climate change and its impact on human rights.
She brought up the issue of the right to development, saying her Office was working with international organizations and institutions to ensure that that right was integrated in their policies. It was also advocating inclusion of human rights in national policies aimed at alleviating poverty and in implementing the Millennium Development Goals. Through its participation in the Global Compact, her Office was also contributing to the development of practical tools to enhance the private sector’s knowledge and integration of human rights. It had actively supported the work of the Secretary-General’s Special Representative on business and human rights, as well as the Special Rapporteurs on the Right to Health and on Toxic Wastes.
On indigenous peoples’ issues, she said her Office had contributed to the study of the expert mechanism on the rights of indigenous peoples, which would be submitted to the Human Rights Council soon. It was currently providing support to the First Minority Forum, convened under the leadership of the Independent Expert on Minority Issues, which focused on minorities and the right to education.
On the realization of human rights in the context of migration, she said her Office had called for the end to imprisonment of irregular minorities and reminding all that human rights were not suspended because a person was a refugee or a migrant. It was also advocating a rights-based approach to the issue of human trafficking and placing the interests of victims at the forefront. It had held an interactive dialogue with the Assembly on taking collective action to end human trafficking, in May, and another event was slated for tomorrow to bring the trafficking victims and survivors into the United Nations dialogue on that issue.
She said collaboration with the Human Rights Council had led to a broad range of human rights issues being addressed in the Council. In addition to its three regular sessions, the Council held four special sessions on human rights situations in several countries. It also held a thematic special session on the impact of the economic and financial crises on human rights. It was important to strengthen the links among the Universal Periodic Review procedure, the treaty body system and the special procedures. In that context, she looked forward to the review of the Council’s work in 2010-2011.
Efforts to strengthen international human rights mechanisms and to support the progressive development of international human rights law now benefited from the work of 39 special procedures mandate holders, including the recently appointed expert on cultural rights. Annual reports, country visits and the nearly 1,000 communications sent by those special procedures were potential indicators of instability and early warnings of crises in the making, and she called on all countries to fully cooperate with them.
She went to say that States should take full advantage of the work of treaty bodies and exploit their still untapped potential. The Early Warning and Urgent Action Procedure of the Committee on the Elimination of Racial Discrimination, which could sound an alarm bell regarding situations that could escalate to violence, provided a model that should be fully utilized and emulated. The Subcommittee on Prevention of Torture also had a useful preventive capacity. She was pleased the Committee on the Rights of Persons with Disabilities had also begun its work.
Noting the growing success of the human rights protection system, which was marked by an increasing number of human rights instruments and corresponding monitoring bodies, she welcomed States’ growing compliance with their reporting obligations. But, both of those positive developments placed increasing demands on the treaty bodies and her Office. The treaty bodies were working to streamline and harmonize their working methods, and States parties and other stakeholders should also reflect on how to strengthen those treaty bodies and promote better coordination and cooperation.
Turning to the field-oriented capacities, she underscored the variety of tools that she had at her disposal – namely, national or regional offices, as well as human rights components in peace operations and human rights advisers to United Nations country teams. Those field presences were an essential interface between the international human rights machinery and the needs expressed at the national level. Moreover, the Rapid Response Unit of her Office had been able to deploy swiftly in the aftermath of crises in a number of countries. Most recently, the Human Rights Council had asked her to present a preliminary report to the General Assembly and a comprehensive report to its thirteenth session on human rights violations in Honduras since the coup d’état of 28 June 2009. A fact-finding mission had been deployed and the comprehensive report would be forthcoming.
To bolster national efforts, her Office had supported more than 40 national human rights institutions and helped forge strong partnerships among those institutions and with the United Nations human rights mechanisms. It was also deepening cooperation with individual countries and State clusters, as well as regional organizations. The Office continued to engage with and support national legal systems and judiciaries, including through in-country training and workshops. She cited, as one recent example, the expert consultation on indigenous justice systems in the Americas, Australia and New Zealand.
Underlining her Office’s leading role in developing methodology and guidance tools in the areas of traditional justice, she said the third series of traditional justice tools had just been published on the issue of amnesties. The Office was also playing an active role in the Counter-Terrorism Implementation Task Force, and she would address the Security Council Counter-Terrorism Committee on the need to uphold human rights in the fight against terrorism later this month.
Continuing, she said her Office was building a strong partnership with United Nations development agencies under the “Action 2” inter-agency initiative. That four-year programme supported more than 60 United Nations country teams in developing their capacity. Further, consultations with United Nations partners to develop a follow-up mechanism to “Action 2” were aimed to bolster system-wide coherence, collaboration and support for human rights mainstreaming. All 2008 joint stocktaking reports from the “Delivering as One” pilot countries indicated considerable efforts had also been made to integrate human rights. A joint review by her Office and the Department of Peacekeeping Operations was under way to asses and further improve integration of human rights in special political missions, and, internally, her Office was working to ensure that human rights officers better understood their role in humanitarian action.
Looking ahead, her Office had identified six thematic priorities to guide its work over the next biennium, she said. They were: ensuring the realization of human rights in the context of migration; eliminating discrimination, particularly racial discrimination, discrimination on the grounds of sex or religion and against the marginalized; protecting economic, social and cultural rights in efforts to combat inequalities and poverty, including in the context of the economic, food and climate crises; protecting human rights in situations of armed conflict, violence and insecurity; combating impunity and strengthening accountability, rule of law and democratic societies; and strengthening international human rights mechanisms and the progressive development international human rights law.
She counted on Member States for help in fulfilling those tasks. After one year on the job, she better understood the challenges countries faced in implementing human rights standards and the challenges of mainstreaming those rights. Moreover, she was much more familiar with the tremendous potential of the United Nations to facilitate the realization of human rights around the world.
“The credibility of human rights work depends on a commitment to truth, impartiality and integrity, with no tolerance for double standards or selectivity”, she concluded, underscoring how that principle guided her work and that of her Office.
The representative of Chile voiced appreciation for the attention given by the Office of the High Commissioner to the situation of women and girls, and on Ms. Pillay’s proposal for a mechanism on “equality before the law”. Her Government welcomed Ms. Pillay’s intervention at a panel discussion on that issue that Chile had organized in Geneva in June. What were her views on the potential creation of such a mechanism, and what would be the contribution from States?
Colombia’s delegate voiced appreciation for the Office of the High Commissioner’s participation in the Universal Periodic Review process and the Human Rights Council’s thematic programmes. She voiced similar appreciation for its work in eliminating discrimination on the basis of race, gender and religion and against marginalized groups, and in its dedication to fighting poverty and inequality. Colombia had sponsored a resolution in the Human Rights Council on elimination of discrimination against women, and was currently circulating a resolution in the General Assembly that would lay out actions to benefit the descendents of Africans who continued to face discrimination. She also commended the Office of the High Commissioner for assistance rendered to Colombia in creating a legal framework for the protection of human rights. She asked to hear what mechanisms would be put in place to boost cooperation with States, including with national-level partners, such as civil society organizations.
The representative of the Sudan welcomed Ms. Pillay’s commitment to truth, impartiality and integrity, with no tolerance for selectivity and double standards. He voiced appreciation for her support to achieving the right to development, and welcomed the adoption of the Optional Protocol relating to the International Covenant on Economic, Social and Cultural Rights. But, he noted that the “justiciability” of those rights had not yet been attained. He then asked if more attention would be given to the effects of climate change. He also commented on the multitude of mechanism, and their overlap, in developing countries. He noted their absence in developed countries, and welcomed the establishment of a human rights regional office in Europe. Regarding the fight against impunity, he stressed the principle that international criminal jurisdiction should not be a political tool used by a few. The fight against impunity must contribute to the cause of peace.
China’s representative said it was more urgent than ever to begin full realization of the right to development and the protection of economic, social and cultural rights. Political and civil rights tended to enjoy more prominence. She voiced hope that the Office of the High Commissioner and the Human Rights Council would take practical measures to advance the implementation of the Millennium Development Goals. On the Durban Review Conference, she commended the Office of the High Commissioner for its involvement in the preparations for that conference. On implementing the outcome document, she expressed hoped that Office would strengthen coordination with the Security Council. She said that the Human Rights Council might wish to consider the supervision and guidance it was giving to Ms. Pillay’s Office. Neutrality, objectivity and impartiality were fundamental principles the Office must adhere to, in strict compliance with the General Assembly’s mandate. The Office should promote cooperation and avoid confrontation. It should work on diversifying its staff, as per Joint Inspection Unit (JIU) recommendations.
The representative of Sweden, speaking on behalf of the European Union, said the proactive and independent manner in which Ms. Pillay had conducted her work was essential for her Office’s credibility and effectiveness, which the European Union would continue to support. She congratulated Ms. Pillay for her first successful year in office, which included a consensus outcome at Durban. She asked how the Office would improve the follow-up procedure of treaty monitoring bodies and how States could best support efforts to mainstream human rights within the United Nations system. She commended the Office for establishing a rapid response unit, which had provided assistance to the United Nations country team in Honduras during the recent political crisis, and asked to hear a little bit about it, though she understood that a full report would be forthcoming.
She added that the European Union agreed that impunity should not be allowed to flourish and noted Ms. Pillay’s call to investigate instances of rights violations in all parts of the world. How would the Office of the High Commissioner support United Nations efforts to help parties to conflicts achieve accountability for violations? She also asked to hear what Ms. Pillay intended to do in areas of interest to the European Union, such as the absolute prohibition of torture, promoting the universality of human rights and the death penalty. She welcomed the establishment of a regional human rights office in Brussels.
Liechtenstein’s representative noted the six priority issues named by Ms. Pillay in her address. But, he said one overarching issue deserved note: implementation. What would the Office do to promote more effective implementation of human rights and of measures that had been suggested by the United Nations in that respect? Regarding the Universal Periodic Review, he said it had the potential to be a useful tool. But, the final verdict could only be made after the Council had completed one full round of reviews. He subscribed to her comment on the relationship between the Universal Periodic Review mechanism and treaty bodies. On combating impunity, he noted that some international tribunals and international judicial mechanisms would soon be phased out. Since the international judicial system was designed, in the first place, to complement national judiciaries, he asked what role she envisioned for her Office in strengthening national justice systems.
The representative of the Observer Mission for Palestine talked of violations of international laws by the Israeli occupying Power against the Palestinian people. There had been countless reports and resolutions on such violations, which included war crimes and crimes against humanity. The International Court of Justice had even drafted an advisory opinion. They had all called on Israel to end its illegal actions. But, those resolutions and recommendations had yet to be implemented. So far, there had been no effort to prosecute. The Goldstone Report had been comprehensive and clear; what did the international community need to do, including United Nations system, to ensure accountability?
Morocco’s representative remarked that everyone agreed that the Durban Review was a success. It had been so because of the High Commissioner’s commitment, for which he voiced great appreciation. On the Human Rights Council, he noted that a working group had been established by the High Commissioner’s Office to deal with the upcoming review. How could those in New York contribute? Regarding the Universal Periodic Review, he noted that half of the membership had been reviewed, which was an important achievement. Civil society had played an active role, and needed commending. Treaty bodies, too, had been effective. While some doubted the value of the Universal Periodic Review, he thought it did, indeed, provide added value to the treaty body system. Technical support and expertise provided by her Office had been helpful in that process. On the right to development, he noted briefly that that concept would be much more useful now, in the face of the economic crisis.
The representative of New Zealand said her country remained a strong supporter of the Office of the United Nations High Commissioner for Human Rights. It firmly believed in the indispensability of that Office’s field presences around the world. To secure the integration of human rights across the United Nations, the Office needed good access to other bodies around the United Nations system, including the Security Council. What further concrete measures could be taken to enhance this effort?
Egypt’s delegate said her delegation was grateful to see consideration of the right to development, which had taken backseat for too long to political rights. She wondered if the High Commissioner could provide further information on the work being done in that area. Her delegation was also interested to hear Ms. Pillay’s views on the Palestinian question. Could more information be provided on the trafficking-in-persons programmes that the Office was undertaking? Also, how did she perceive the overall gender coordination efforts within the United Nations system, including the mandates of the Special Representatives of the Secretary-General relating to violence against women?
The representative of Malaysia welcomed the focus by the Office on development. Could she elaborate on follow-up actions in that regard? Also, what work was being done on the issues of inter-religious and inter-faith dialogue? His delegation agreed with the need for transparency and impartiality, but it believed the work of the special procedures mandate-holders had to support international human rights law. What was her Office doing to ensure that those special procedures upheld the code of conduct, in that regard?
The representative of the Maldives particularly supported the report’s consideration of human rights and climate change. It believed there were three key questions relating to the interface between human rights and climate change: What was the nature of this relationship and how could that relationship be addressed within a framework to combat climate change? There was less agreement on how the impact of climate change could be interpreted as a human rights violation, but his country believed it could be, and felt that issue remained an important area for consideration. Thus, an ambitious agreement was needed in Copenhagen to address those concerns.
Mexico’s representative highlighted the focus on the human rights of migrants and stressed that more should be done in that area. One priority of the Office should be increasing its presence on the ground. His delegation would appreciate more information on results achieved to date, in that regard.
The representative of the United States thanked the High Commissioner for her thorough report and the work of her Office, particularly in the field offices. Her delegation appreciated the priorities the High Commissioner had outlined. Could she elaborate on strengthening human rights mechanisms? What were the weaknesses and what did she propose to strengthen them? Further, how could their independence be ensured?
The delegate of the United Kingdom, giving support for the statement made on behalf of the European Union, said it was important for the High Commissioner to update the General Assembly on its work. But, her delegation would continue to argue for the independence of that Office. The United Kingdom supported the role of civil society in the Universal Periodic Review and hoped to see continued evidence that States were acting to implement the recommendations that resulted from that process. She was pleased to inform the Committee that the United Kingdom would provide an update in early 2010.
Moreover, she said early indications were that the Universal Periodic Review was complementary to other human rights work throughout the United Nations. It also believed that the Universal Periodic Review was important in alerting the United Nations to brewing problems. She further welcomed the partnership that the Office had established around the world. In particular, the United Kingdom welcomed the establishment of the office in Nepal. How did that office inform work being done elsewhere? The United Kingdom looked forward to supporting Ms. Pillay throughout her term of office.
Syria’s representative said her delegation had anticipated that the High Commissioner’s report would cover Israel’s “flagrant” human rights violations in Gaza, particularly since the Goldstone Report had already been published. Her delegation would like to have a clear answer regarding what Ms. Pillay intended to do on its fourth priority -- namely, human rights and armed conflict. Did she intend to work in a serious manner on the situation of people languishing under foreign occupation? Further, how would she undertake such work?
Pakistan’s delegate sought the High Commissioner’s views on the geographic imbalance in her Office and how she planned to rectify it. Could she also elaborate on ensuring special procedures followed the code of conduct? Regarding her Office’s six thematic priorities for its future work, how would she work to combat the defamation of religions?
The representative of Iran supported the High Commissioner’s commitment to no tolerance for selectivity and double standards. Technical cooperation to countries was important in helping them promote and protect human rights. What kind of initiatives was she planning to promote good practices and the provision of technical assistance?
Cuba’s delegate said she was aware of Ms. Pillay’s work to support the Human Rights Council. She stressed the importance of promoting economic, social and cultural rights, particularly the right to development, bearing in mind the serious effects of the economic crisis on developing countries that were not responsible for the crisis. She commended Ms. Pillay for the outcome of the Durban Review process, and said the Cuban Government would pay attention to how the Office followed up on that outcome. On staff composition, she said efforts undertaken so far were good, but rapid, urgent measures were needed to bring about more of a balance. She called the Universal Periodic Review a success, and added that efforts should be made to prevent double standards. She noted that there had been problems in translating the documentation arising from the Universal Periodic Review, and observed that the Office should be given extra help.
The representative of Benin hailed the Office of the High Commissioner for its increased engagement in the field. “Human rights” meant helping people get up in the morning, to be housed, to sleep and to eat. It was not an abstract issue. It was important to return back to the basics. “Human rights” was not a matter for university professors, but for grass-roots communities. A society’s economic and social structure would not be sustainable without popular backing. How did Ms. Pillay plan, through her activities, to reach everyday people? Last year, his country had brought up the idea of creating an international year for apprenticeship on human rights. He asked her to address that issue, especially since his country planned to draft a resolution on that issue this year, as well.
Australia’s representative welcomed the focus on advancing the promotion and protection of rights in the field. She commended the Office of the High Commissioner for the technical cooperation it provided, including to the rapid response unit. She also welcomed its work on expert consultations on indigenous justice systems. She voiced support for the independent and impartial performance of Ms. Pillay’s mandate and of the special procedures, which were discharged with integrity. How could that independence continue to be maintained?
The representative of India asked whether progress had been made to ensure equitable geographical representation in Ms. Pillay’s Office. He noted that an in-depth study on gender was forthcoming, and given that intergovernmental negotiations on a new gender architecture would begin soon, could she provide more information on that issue? Would the study be made available to the General Assembly?
Responding, Ms. PILLAY thanked Member States for their comments and questions, which she interpreted as “alerts” for what should be on her radar. She was moved by the comments of Colombia and Mexico on the value of country offices. It was important to know that the work of her Office did make a difference on the ground.
Responding to questions on human rights mechanisms, she said the Human Rights Council was an essential element of the overall United Nations reform and it had already distinguished itself from its predecessor, including in its ability to convene special sessions on human rights issues and its Universal Periodic Review, among other things. She had encouraged the Council to consider a range of issues that could end up in declarations.
Regarding thematic priorities, she welcomed support for the six she had identified, particularly the support for economic, social and cultural rights. More details would be forthcoming, but the country presence of her Office in 55 States allowed it to do its work more fully. It allowed the Office to monitor country situations, identify gaps and pick up ideas.
On questions about her Office’s independence, she stressed that she was guided by her mandate as set out by the General Assembly. Moreover, she worked with the Human Rights Council to better protect human rights. Genuine cooperation between her Office and that Council was paramount. She was personally committed to being transparent and wanted to be very open with regard to her own work. Discussion and dialogue would provide a better understanding of the work and independence of the Office.
She encouraged Member States to engage in the review of the Human Rights Council as early as possible. Even as the review remained a Geneva-based enterprise, the General Assembly could help determine the future of that Council. The review had to be undertaken also in consultation with regional groups.
On geographic diversity, she said it was critical to improve the diversity of her Office. There was a clear trend of improvement in the geographic diversity of her staff, proving that reform measures were working. According to the Joint Inspection Unit’s report, consistent and measurable progress was seen particularly in the number of staff from non-Western States. Since 2006, the number of staff from Africa had increased from 44 to 63; from Asia, the increase had been from 47 to 60; from Latin America and the Caribbean, it was from 38 to 56; and from Eastern Europe, from 13 to 26. Overall, the Joint Inspection Unit’s second management report of 16 June 2009 recognized the process in achieving great geographic diversity.
Her Office had worked to expand the pool of candidates from the widest possible range, including through advertisements in widely read publications and at academic institutions and non-governmental organizations, among other tactics. A human rights national competitive exam had also been organized in 2008, and the candidates that had been identified were being recruited at the P-2 level.
However, she noted that she valued the commitment and dedication of her current staff and had to respect their aspirations. Thus, sudden and dramatic staffing changes were not possible. Further, she had to abide by the staffing rules, including on internal candidates, which the General Assembly had developed. If they were dissatisfied, perhaps those rules should be reviewed.
On fears that special procedures were exceeding their mandates, she said the mandate-holders had taken the code of conduct very seriously and had engaged in ongoing dialogue with Member States. Since 2008, her Office had organized new information sessions with mandate-holders to familiarize them with their mandates, working methods and the code of conduct.
On the Universal Periodic Review, she said a total of 80 States had been reviewed to date. She agreed it was too soon to review that process. But, the high level of participation by delegations and experts during the interactive dialogue made that process invaluable. Other comments indicated that the international community valued the process.
Regarding implementation, she said she had asked for States to be given technical assistance and resources to support the implementation of recommendations. She had adopted a practical approach, including raising awareness among country teams. She would like to see greater coordination among civil society and treaty bodies to implement recommendations resulting from the Universal Periodic Review.
She said the treaty bodies were routinely furnished with the recommendations and outcomes of the Universal Periodic Review. While the two systems were different in nature, they were complementary. She was heartened that the Universal Periodic Review had encouraged ratification of human rights treaties. She had visited each and every treaty body since she took office and was impressed with their work. She appealed for greater support and resources for those bodies.
Statement by Special Adviser to Secretary-General
IBRAHIM GAMBARI, Special Adviser to the Secretary-General, introduced the report on the situation of human rights in Myanmar, which covered the period from 25 August 2008 to 25 August 2009. It covered the Secretary-General’s visits to the country on 3-4 July 2009, at the invitation of the Government. While there, the Secretary-General made several proposals to the senior leadership, based on a five-point agenda: the release of political prisoners; the promotion of genuine dialogue with all stakeholders; creating conditions conducive to a credible electoral process; addressing the country’s economic challenges; and regularizing engagement through United Nations good offices.
He said the Secretary-General had stressed that cooperation with those five points offered the best prospects for Myanmar to fulfil its priorities of holding free and fair elections, and to foster development, in ways acceptable at home and abroad. And while the Secretary-General had stressed that the primary responsibility in that regard lay with the Government, he had also urged political parties and ethnic nationality groups to engage constructively in the political process. The Secretary-General had had an opportunity to share his vision for the country in an unprecedented public address in Yangon on 4 July.
He added that the Secretary-General had convened and chaired, for a second time, a meeting of the Group of Friends on Myanmar at the level of foreign ministers, at the sidelines of the General Assembly general debate. The high turnout demonstrated a strong collective interest in the future of Myanmar and strong unity of purpose in three areas: to encourage Myanmar to work with the United Nations to ensure an inclusive dialogue process and the creation of conditions for credible elections; to uphold the role of the United Nations in helping Myanmar meet its immediate and long-term challenges; and to signal the international community’s willingness to help the people of Myanmar to address its political, humanitarian and development challenges, in particular to advance the Millennium Development Goals.
He said the Secretary-General welcomed the unanimous support voiced by States for his good offices role, and took note of the willingness of key States to engage directly with Myanmar. In addition, the Secretary-General had had the opportunity to welcome Prime Minister Thein Sein to the United Nations at the General Assembly meeting. He took note of the commitment by Myanmar to the General Assembly to hold free and fair elections in 2010, and to announce related preparations in due time.
Since the Secretary-General’s visit last July, two developments had drawn particular attention, he said. Those included the trial and sentencing of Daw Aung San Suu Kyi in July. Despite the commutation of her sentence, it was a missed opportunity to signal commitment to a mew era of political openness and inclusiveness. Also, tensions had erupted between the Government and certain armed ethnic groups in August, highlighting the importance of concluding agreements through dialogue.
Nevertheless, the Secretary-General was encouraged by steps taken to release over 130 political prisoners and the resumption of talks between Daw Aung San Suu Kyi and the Government through two consecutive meetings between her and the Minister for Relations, and a meeting between her and foreign diplomats. But, the response to the specific proposals made by the Secretary-General remained incomplete.
Unless three immediate concerns were addressed, the credibility of the political process would remain in doubt: the release of all political prisoners and their free participation in the political life of their country; a genuine dialogue between the Government and opposition and ethnic nationality groups; and the creation of conditions conducive to inclusive and credible elections. Equally important was the need to address the pressing humanitarian and socio-economic challenges facing the people of Myanmar. More could be done by the Government, with international support, to meet the Millennium Development Goals and start unlocking the country’s potential.
He said a process of national reconciliation and democratic transition based on dialogue and rooted in the respect for human rights and mutual understanding offered the best prospect for overcoming Myanmar’s political stalemate and armed conflict. The Secretary-General’s personal engagement in the implementation of the good offices mandate entrusted to him by the General Assembly was a clear signal of commitment of the United Nations to help that Government and its people. The more Myanmar engaged meaningfully with the Secretary-General’s good offices, the more it affirmed its sovereignty and the more it concretized its assertion that cooperation with the United Nations was a cornerstone of its foreign policy.
The representative of Myanmar said that, in view of the serious nature of the Secretary-General’s report and the presentation of the Special Adviser, the 10-minute injunction was hardly sufficient time to engage in detail on that report. He hoped he would have adequate time to effectively respond to those documents.
He had listened carefully to Mr Gambari’s presentation and read the Secretary-General’s report in detail. To his credit, the Secretary-General did not shy away from reporting on the important issues with regard to Myanmar’s intention to hold free and fair elections in 2010 and to hand over power in keeping with the Constitution. The Secretary-General said the Government was had not made progress on a number of fronts. To that end, he stressedthat absence of progress was not due to a lack of willingness on the part of the Government. In paragraph 51 of this report, the Secretary-General stated that meaningful steps had not been taken since his visit, including in regard to the trial and sentencing of Aung San Suu Kyi. Those remarks were made despite the commutation of her sentence. The report also failed to note that over 7,000 prisoners were released last month. That fact gave the lie to his assertion that nothing had been done since his visit. Moreover, it was noteworthy that every right of defence and appeal had been granted to Aung San Suu Kyi.
He said that, while the Secretary-General called for the release of prisoners who supposedly languished in jail, the fact was that no one had been jailed because of his or her beliefs. If they were in jail, it was because they had been tried and found guilty of transgressing the law. No one was above the law.
He stressed that the Government was taking steps towards holding the elections and would soon form an independent election commission, in addition to other important steps. As Prime Minister Thein Sein had stated during his address to the General Assembly last month, Myanmar’s focus was not on the narrow interest of individuals or parties, but on the larger interests of the nation.
Underscoring that Myanmar was at an important juncture, as it stood on the cusp of change, he said that in the final analysis the Government of Myanmar and its people would fashion their own destiny. He was confident the Secretary-General would use his good offices role to support those efforts.
Japan’s delegate welcomed Myanmar’s announcement of its recent prisoner release, but said his delegation remained concerned over the sentencing of Aung San Suu Kyi and believed all political prisoners should be released by next year, before the elections were held. Japan was consistently supportive of United Nations mediation efforts in Myanmar. It believed that the assistance of neighbouring countries could be helpful and wondered how Mr. Gambari could engage those countries?
The representative of New Zealand asked what the next steps were for the good offices of the United Nations and how it would follow up on the high-level meeting of the Group of Friends on Myanmar. How could other countries help the Government of Myanmar lower tensions between it and armed rebel groups?
Sweden’s delegate, speaking on behalf of the European Union, welcomed the Secretary-General’s report and commended his good offices mandate, as well as the work of his Special Adviser. She noted a draft resolution on Myanmar would again be presented during this session of the General Assembly, focusing on work in the lead-up to next year’s elections there. She noted that the report stated no election law had yet been adopted, and asked the Special Adviser what could be done if such a law was not adopted, as well as what that law should be. Also, what should the Government do to ensure that its Constitution was broad enough to meet international human rights standards? Finally, how was Mr. Gambari coordinating his work with the Special Rapporteur on Myanmar?
The representative of Chile said he agreed with the Government of Myanmar that its future rested in its hands, through a process of democratic elections. But, the sentencing of Daw Aung San Suu Kyi had made it difficult for him to believe that the right atmosphere was being created for free and fair elections to take place. He expressed hoped that that would change. He then asked what role was being given to regional organizations to encourage the creation of a conducive atmosphere. While United Nations mediation was fundamental, regional organizations also had a part to play. In Latin America, for example, the Organization of American States (OAS) had played an important role in the electoral process in conflict and post-conflict situations.
To Ms. Pillay, he said the Chilean Government was interested in developing mechanisms to protect women’s rights and would like to hear more about the “Headquarters Agreement”.
The representative of the United States said release of political prisoners was central for advancing the national reconciliation process and making the transition to democracy. Her Government had long advocated for it. Had Mr. Gambari received indications that authorities were planning additional prisoner releases?
Australia’s representative noted the new strategy of engagement with Myanmar, and asked for Mr. Gambari’s reflections on how the international community should engage with Myanmar.
Mr. GAMBARI first responded to the representative of Myanmar, clarifying that the report had been prepared months in advance and, so, needed updating. One of the reasons he had appeared before the Committee was to deliver the updates, for example, relating to the release of over 130 political prisoners, and the resumption of talks between Daw Aung San Suu Kyi and the Government through two consecutive meetings between her and the Minister for Relations, and a meeting between her and foreign diplomats, at her request. Notwithstanding those steps, the Secretary-General was still waiting for responses to the proposals he had made on 3-4 July, particularly on the elections, which was the fifth point of the Government’s own seven-step road map to democracy. In the Secretary-General’s opinion, those recommendations would enhance the credibility and acceptability of election outcomes.
To the representative of Japan, he made assurances that the Secretary-General had, indeed, coordinated with leaders of the Association of South-East Asian Nations (ASEAN) at three levels: during United Nations-ASEAN Summit meetings at the margins of the General Assembly debate; at bilateral consultations, and indeed, Mr. Gambari himself had been dispatched on missions to ASEAN countries multiple times in the last few years; and through the focus group meeting convened in New York by the Indonesian Government and involving the Myanmar Government at the level of Permanent Representatives, which Mr. Gambari had attended. In addition, the Group of Friends of the Secretary-General on Myanmar had had nine meetings -- two at the ministerial level, and in which ASEAN members participated.
To the representative of New Zealand, he said he was “always ready to return” if there was potential for constructive dialogue. Member States should also work to encourage the Government of Myanmar to provide the Secretary-General with responses to his proposals. In terms of lowering tension between the Government and armed ethnic groups, he said the Secretary-General’s good offices had a good understanding of underlying causes and believed that there was no alternative besides dialogue. During his last visit, the Secretary-General had offered his help on that issue, while encouraging armed groups to remain constructive. He was waiting for a response from the Myanmar Government on his offer to avail his experiences in handling those matters.
To the representative of Sweden, he said the Secretary-General was clear that the earlier the electoral laws were released, the better to build confidence among those expected to participate. He had met representatives of 10 registered political parties, urging them to engage constructively in the political process. As for the Constitution, he said it was up to the people of Myanmar and key stakeholders to discuss the issue. The Government’s stance on it was that it had been adopted by a majority of the population. The Secretary-General had recommended that those issues be the subject of dialogue. Mr. Gambari noted that there were provisions in the Constitution for amendments to be made, which should be looked into.
He said the resolution establishing his mandate had authorized him to work under the item “human rights situation in Myanmar”, thus, obliging him to coordinate his activities with that of the Special Rapporteur on the situation of human rights in Myanmar. Indeed, the two exchanged views before each of their respective visit to the country, during visits and upon returning. They also discussed their draft reports to the General Assembly with each other.
Responding to the representative of the United States, he suggested that the question on the release of political prisoners be directed to the delegation of Myanmar, since he had no information. But, based on past experience, he said he had reason to believe that the Government would continue granting amnesty to political prisoners.
To the representative of Australia, he said he had always recommended that the international community engage constructively with the Government; not simply for the sake of engagement, but to promote a united, democratic, peaceful Myanmar with full respect of human rights of its people, in line with its seven-step road map to democracy, which included the holding of elections in 2010.
Taking the floor once again, Ms. PILLAY said she had stepped out for inspiration and some answers. Responding to Benin’s delegate, who had asked how her Office had been implementing the resolution on the year of human rights learning, she said it was developing human rights education and training materials. They were available online and were also used to support national efforts. To date, over 200 non-governmental organizations had participated in her Office’s training sessions. A section of the Office website on the Universal Declaration of Human Rights was being developed. Nevertheless, much more would be done in the area on training workshops.
On questions related to the right to development, she noted that her Office’s activities had so far been focused on supporting the Task Force in that area. It also hoped to help other United Nations groups to mainstream that right in their policies and programmes and, to that end, it was working to provide analysis and feedback.
Taking up questions on the Millennium Development Goals, she stressed that human rights values permeated and underpinned all eight Goals. A human rights-based approach helped raise the level of accountability, which was much needed. It also helped empower the most vulnerable people, who were the beneficiaries of those Goals. Still, harnessing human rights and Millennium Development Goals in a mutually beneficial way remained a key challenge. She believed that “missing language” in the Millennium Development Goals was about human rights and, to that end, was already playing a role at high levels of United Nations agencies to ensure that that language was inserted in them.
Responding to Mexico on linking human rights and migrants, she said her Office was doing work on that issue in preparation for the Global Forum on Migration and Development, scheduled for next month. She had also recently addressed a panel on alternatives to detention and the conditions of detention of migrants. The Convention for the Protection of the Right of All Migrant Workers and Members of Their Families was the basis on which her Office would plan its actions.
On questions relating to women’s rights and gender, she noted the new mechanisms and the gender architecture, resulting from the recent General Assembly resolution. She flagged her strong support for a mechanism on gender equality before the law and noted that the Human Rights Council had directed her to prepare a thematic report over the next year on that topic. She intended to prepare it with the participation of all stakeholders. She also noted the new Special Representative of the Secretary-General on Violence against Women and expressed the desire to move forward with the recently adopted resolution on the new composite gender entity. She would work to ensure her Office worked to ensure that all women and girls were protected from violence around the globe. She had also signalled that she wanted to participate in the process to select the head of that entity.
She said her Office had taken on the leadership to ensure that the “Action 2” programme played a strong role in strengthening human rights efforts and her Office was in close touch with other United Nations agencies to reach a follow-up agreement on “Action 2”.
Regarding questions related to freedom of expression, she said that was a subject of great importance and had defined limitations in international law that required further clarification. For that reason, her Office had held a seminar on the links between freedom of expression and incitement to hatred. Further work in that area was needed, and she drew attention to the Human Rights Council resolution that was adopted last month. She had engaged -- and would continue to engage -- on promoting inter-religious dialogue.
She said climate change was a troubling issue to everyone, and particularly the Maldives. As recognized by the Human Rights Council, climate change did have any adverse impact on human rights. Indeed, its effects were felt not only by States or economies, but by individuals. She had urged States to consider the human rights implications, including in regard to adaptation and mitigation measures. She was engaging with the human rights bodies on climate change, and she looked forward to progress at Copenhagen.
On the death penalty, she noted that her Office had already prepared one report on that issue. It had also been requested to prepare a report for the next session of the General Assembly. It was also constantly updating the Human Rights Council on the issue. Noting that 15 December would mark the adoption by the General Assembly of the second optional protocol of the International Covenant on Civil and Political Rights, she called on all States to abolish the use of the death penalty and ratify the second optional protocol.
She appreciated the comments by several delegations on her prioritization of economic, social and cultural rights. Those were considered a cross-cutting issue. Her Office had produced a significant number of tools and manuals to strengthen the implementation on those rights. It had finalized two fact sheets on the right to housing and food. The field offices had increased the capacity of States to monitor those rights. The representative of the Sudan had raised the issue of justiciablity, and she was personally interested in that issue. But, her Office was focused on strengthening the legal framework for those rights.
Ms. Pillay added that other activities included trainings and seminars with judges and civil society organizations, and advocacy on the ratification of the Optional Protocol, and inclusion of legal remedies regarding those rights.
In answer to the representative of Egypt on trafficking in persons, she said she would deliver a press statement on that issue shortly. Her Office adopted a victim-centred human rights perspective. It examined the causes behind exploitation and demand for trafficked persons, and factors that increased the vulnerabilities of people being trafficked. It would publicize its draft commentary on the recommended principles and guidelines, which would provide a comprehensive legal and policy analysis of those guidelines, at the end of the year or early next year. It would continue to strengthen its partnership with United Nations agencies, including through the UN-GIFT programme.
To the United States delegate, she said international human rights norms and standards were the basis of her work, and her Office conducted national and regional activities believing that the impact must be felt at the national level. In-country work was aimed at improving awareness and understanding of treaty recommendations, the Universal Periodic Review process and other special procedures. Through partnerships with national human rights institutions, field officers enriched their knowledge and were able to identify emerging issues. Working in consultation with national stakeholders, her Office could produce more tailored and sustainable solutions.
Responding to the representative of the United Kingdom on achievements in Nepal, she said her Office’s advocacy had led to the establishment of a judicial commission to investigate serious incidents. It had led to laws being amended, including a draft bill criminalizing disappearances and creating a commission on disappearances. It had prevented the passage of a flawed truth and reconciliation bill, and was now consulting on that bill. It had empowered human rights defenders, helped build capacity of, and strengthened, key offices, such as national human rights institutions and civil society organizations. It provided training for media and security forces. Its work in monitoring protests had led to a more professional response on the part of authorities and a reduction in the excessive use of violence. It was taking the lead in the inter-agency “protection cluster”, in response to emergencies.
To the representative of Sweden, she said credible investigations into human rights violations required independent expert mechanisms that were free from interference by parties to a conflict. Any such mechanism should have three functions: to monitor and assess Government commitments to provide accountability; to compile a dossier on violations; and to make recommendations to address those violations. Having independent expert mechanisms made it easier for victims to come forward, as well. Also in response to the representative of Lichtenstein, she said assistance provided by her Office to national investigations and prosecutions was done on the basis of the principle of complementarity enshrined in the Rome Statute.
On her Office’s rapid response unit, which had gone to many crisis areas, she said they had helped to strengthen domestic human rights. It provided support to Human Rights Council resolutions and decisions at the request of country teams and peace missions.
To questions from speakers from Palestine, Egypt, Syria and Sweden on the situation in Palestine and the Goldstone Report, she recalled that the Human Rights Council had addressed that matter, and 25 Member States had adopted a resolution on the report. A provision of that resolution stated that the report would come before the General Assembly. Since that would place the report under the Assembly’s jurisdiction, she had not wanted to include it in her report. Nevertheless, her view was that the Goldstone fact-finding mission had made important recommendations aimed at ending impunity on the part of all parties, and had provided for redress to victims and the prevention of future violations. Accountability should not be sidelined in the name of the peace process; indeed, accountability could not be disassociated from the peace process. She welcomed the Human Rights Council’s endorsement of the report and looked forward to action by concerned parties, in keeping with its recommendations. All parties must carry out transparent investigations into reported violations, in compliance with international standards. She had consistently called for accountability in many situations where serious conflicts were ongoing, in an even-handed manner.
To the representative of Syria an the situation of people under foreign occupation, she said she fully recognized the particular vulnerability of such persons and had always insisted of the full application of international law, including refugee law and international criminal law, and was providing assistance in the Occupied Palestinian Territories and other places on that issue.
She called on the support of all States in carrying out her work and invited them to take advantage of training programmes offered by her Office to develop their justice systems. Their support was essential for the Office to conduct its advisory work on issues such as transitional justice and accountability. She counted on States not to obstruct the work of the Office because of political considerations. Finally, she stressed that no country was free of human rights violations.
The representative of Cuba asked if she could have those answers in writing.
Statement by Chairperson of Committee on Migrant Workers
ABDELHAMID EL JAMRI, Chairperson of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, made a broad appeal to those States that had not yet ratified the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which entered into force on 1 July 2003, to do so.
He recalled that the Universal Declaration of Human Rights stressed that all people were entitled to respect of their human rights. Today, about 200 million people were living in a country where they were not born and where they did not enjoy nationality. Migrants were too often considered as a source of cheap labour that was docile and flexible enough to accept working conditions that nationals did not themselves accept.
Against that backdrop, the Convention provided a framework both to protect the rights of migrants, and to form migratory policies at all levels. It underpinned good relations among States and regions where migrants moved. Moreover, it addressed the rights of irregular and documented migrant workers. Indeed, the whole of the Convention focused on the distinctions between those two types of migrants, and ultimately sought to eliminate clandestine migration in light of the dangers and vulnerabilities such migration generated for illegal migrants.
He noted that, to date, the Committee had examined 12 State reports. In its conclusions to those reports, the Committee attempted to guide States in their identification of problems and possible solutions. Among other things, the submission of those reports also meant that countries could coordinate among different agencies. As part of the review process, joint concerns had been identified. The Committee had also often underlined the importance of data collection in developing migratory policies, as well as the need to expand training on the Convention to all civil servants working in the area of migration.
Through an analysis of State reports, the Committee had concluded that migrant workers often encountered resistance to, and denial of, their right to freedom of association. Based on that, the Committee had organized a round table on that topic to shed light on international standards and to examine the experiences of workers who organized themselves into trade unions.
Since its creation, the Committee had sought to protect migrants and their families. In a few days, it would hold a discussion in Geneva on the “Protection of the rights of domestic migrant workers” to aid its drafting of a general comment on domestic migrant workers, which it hoped to adopt next year. A debate on the issue was also scheduled for the upcoming 2010 conference of the ILO.
He noted that particular attention had been given by treaty bodies and special procedures to the rights of migrant workers in detention. Those rights were recalled in several resolutions of the General Assembly and the Human Rights Council. A round-table meeting on this topic during the twelfth session of the Human Rights Council had raised public awareness on this issue. The Committee also paid particular attention to the situation of children in migration. It had also marked the fifth anniversary of the Convention on the Rights of Migrant Workers by holding a round-table celebration.
He said the Committee was delighted to note that the rights of migrant workers were increasingly debated at the international level. But, even though the pace of the ratification of the Convention had sped up, it was regrettable that only 42 States had ratified it. The lack of ratification was a real problem for the Committee, as was the slow rate of submission of country reports. As a result, the Committee was looking at the possibility of enforcing the Convention in the absence of a State report, as was done in the cases of some other international conventions.
Calling again on all States that had not yet done so to ratify the Convention on Migrant workers, he stressed its role as the key document for successful migratory rights and policies. With globalization, the mobility of the workforce had become central to economic prosperity in all regions of the world. Research showed that protection of migrant workers strengthened the impact of migratory policy. Thus, it was in the interest of all States to implement migratory regulations that protected those rights. Moreover, strengthening the rights of migrants was the best way to combat illegal migration and the trafficking of humans.
The representative of the Philippines said she understood that, on 14 October, the Committee on the protection of all migrant workers and their families had held a general discussion on the situation of domestic migrant workers. What prompted the Committee to hold that discussion? Could he provide a summary? She also understood that a panel discussion was held by the Human Rights Council on the detention of migrants. Was the Committee planning to put together views on that issue, particularly on possible alternatives to current practices of detention?
Mr. EL JAMRI said the discussion on rights of domestic workers was held in view of the desire, within the ILO, to create an instrument to protect domestic workers’ rights. It was unclear what form that instrument would take, whether it would be a convention or otherwise. The ILO would decide on a format in 2010, and its adoption was planned for 2010, so that it would be effective from 2011 onward. In its discussion, the Committee had focused on three things: an examination of States parties’ reports; promotion of its principles through civil society, the United Nations and other platforms; and in-depth discussion of the issue. The Convention on the rights of migrant workers was a broad one. It was useful to have such in-depth discussions on particular aspects of it. If viewed from the standpoint of domestic workers, it was easy to see how existing instruments could be applied to them. But, an in-depth study revealed that they had particular needs. The discussion was good for developing recommendations to raise awareness and foster a better understanding, in general. It was also good for “pooling of everyone’s efforts”; destination countries had not ratified the Convention, which complicated matters. At a session in April, the Committee had proposed that the process of drafting that instrument be started.
Regarding detention, he began by explaining that migration was not, and should not, be viewed as a crime. In Italy, migrants were criminalized. He also explained that migrants who were being detained should be read their rights in a language they understood. They should be given the right to appeal, and to contact their Consulate. He had been delighted that the Human Rights Council had organized that Day, and commended the Government of Côte d’Ivoire for organizing it. He had met the African Group of the Council, who had asked him to assist them in implementing resolutions stemming from those discussions. The Committee had held workshops. But, it was difficult to ensure that those resolutions were being properly implemented.
The representative of Iran asked for his opinion on measures taken against xenophobic and racist attacks against migrants in host countries.
Mr. EL JAMRI said those attacks should not be allowed to take place. There should be equal treatment of nationals and non-nationals in each country. There were different forms of attacks against migrants. Migrants were often deemed inferior to nationals. Discrimination was institutionalized in some States. Governments should work to guarantee the right to employment, the right to equal wages, as well as access to education and health services. Their children had a right to go to school. They had a right to practise their religion and culture. In times of economic slowdown, it was doubly important to ensure equal treatment. When there was a need for labour, they were welcomed with open arms, but during a slowdown, there tended to be a “national preference”. Society’s attitude needed to change and States needed to respond to that. In times of crisis, he asked States to implement support plans to guarantee equal treatment of migrants. For migrants who wanted to return home, he urged that States enable their reintegration in the country of origin.
Statement by Special Rapporteur on Right to Health
ANAND GROVER, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, presented his report for the year, which was devoted to the role of informed consent in relation to the enjoyment of the right to health. Informed consent was enshrined in national legal frameworks, but was compromised in the health-care setting as a result of the power imbalance created by unequal levels of knowledge and experience inherent in doctor-patient and researcher-subject relationships. Inequalities exacerbated by stigma and discrimination resulted in individuals from certain groups becoming disproportionately vulnerable to having their informed consent compromised. Women, children, the elderly, ethnic minorities, indigenous peoples, persons with disabilities, persons living with HIV, persons deprived of liberty, sex workers and people using drugs were among those vulnerable.
He highlighted the role of health-care providers in providing information, as well as in being cognizant of, and minimizing threats to, voluntary decision-making. Limited resources could present challenges to consistently ensuring the provision of adequate information and counselling. Structural factors could worsen the inherent imbalance of power. Persons with disabilities were often denied the support they needed to fully exercise legal capacity. Elderly persons’ informed consent was discounted due to perceived or actual frailty and helplessness, with institutional care settings particularly likely to lack appropriate monitoring. Some social and legal norms limited women and children’s access to sexual and reproductive services, with some women continuing to be subjected to forced contraception and sterilization.
He said public health measures were also a concern, especially in light of recent pandemics. Voluntary participation in such measures must be ensured for maximum effectiveness, with a minimum restriction of rights. As for compulsory testing for disease, most countries continued to practise it and, in a way, that was often linked to non-consensual treatment or no treatment. Routine testing was coercive and generally resulted in inadequate provision of information and counselling. Mandatory testing and treatment could reinforce stigmatization, and discourage those labelled as vectors of disease -- such as illegal immigrants or sex workers -- from seeking timely and appropriate health care, due to fear of social or legal repercussions.
The simplified pre-test information prescribed by current guidelines for testing and counselling for HIV de-emphasized comprehensive, individualized pre-test counselling and information, he said. Such guidelines should be re-examined.
He said consensual, community-based care models led to better treatment outcomes. Ensuring informed consent could support and encourage the completion of therapy on a voluntary basis. But, many States continued to allow non-consensual detention of persons living with mental disabilities, because they were perceived as a danger to society and to themselves. The existence of a disability was not a lawful justification for the deprivation of liberty, as stipulated in the Convention on the Rights of Persons with Disabilities.
He said drug dependence should be treated like any other health-care conditions. Criminalizing it was counter-productive. Further, in the realm of medical research, a rights-based approach necessitated special protection to ensure the autonomy of participants. Research involving individuals with low levels of literacy and those from vulnerable communities required an additional effort to facilitate comprehension. Special consideration should be made regarding undue incentives in limited-resource settings, and the particular risks associated with double standards for informed consent at times applied to unsafe clinical trials in developing countries.
He encouraged States parties to evaluate whether they were meeting their obligations to safeguard informed consent, as an element of the right to health, through their legal and administrative frameworks. It was also important to build the capacity of health-care providers and other stakeholders, especially in challenging barriers at the community level and entrenched social and cultural norms. He encouraged States to establish appropriate channels of communication, staff training and awareness-raising. International health financing and technical assistance should emphasize the importance of informed consent.
The representative of Australia stressed that the right to health care should be upheld even in times of pandemics. Her delegation was particularly pleased to see that the report of the Special Rapporteur focused on the rights of vulnerable groups, such as women, the elderly and the disabled. She asked how the right to health could be upheld in any pandemic planning. Further, was the Special Rapporteur aware of best practices in that area and, if so, what were they? Australia would also welcome the Special Rapporteur’s general observations on the relationship between poverty eradication and improvements in health outcomes, particularly in the area of HIV/AIDS.
Chile’s representative said her delegation had duly noted the footnotes in the Special Rapporteur’s report and those had been brought to the attention of Chile’s Ministry of Health. Chile had enacted a mechanism to ensure the protection of the elderly vis-à-vis informed consent. Her delegation believed that issue had to be approached not just from the secrecy angle, but also from the angle of privacy and confidentiality. Indeed, a strong definition of confidentiality was lacking in ongoing discussions at the international level. Finally, she said she was pleased with the content of paragraph 95 and hoped States would be able to make use of the recommendations contained therein.
Sweden’s delegate noted that the Special Rapporteur’s report said the right to informed consent placed an obligation on States. The report also said that informed consent might be enshrined in the legal framework, but could continue to be compromised in the provision of health services. He asked if, in his discussions with health practitioners, the Special Rapporteur had seen an awareness of that aspect of the right to health. What could be done to foster wider awareness? What specific actions would he highlight to overcome the obstacles that vulnerable groups faced that did not allow for confidential medical counselling or even the right to health?
The of representative Cuba said her delegation supported the full realization of rights to health for all. Cuba had worked to ensure all Cubans had free access to health care. It also worked to promote international cooperation in that area. How was the brain drain affecting countries in their efforts to promote the right to health?
The representative of Canada welcomed the report’s emphasis on the human rights of vulnerable groups. Health literacy for adults was central in ensuring the right to health. Canada also sought to promote the principles of informed consent in its international health development work. She asked if the Special Rapporteur could highlight any examples of communities successfully implementing a rights-based approach to health. What health outcomes had they been able to achieve?
Responding, Mr. GROVER said poverty resulted in lack of access health services and, certainly, to a lack of information. Therefore, society needed to make information available to poor people.
In answer to the representative of Canada, he cited a community-based approach in India and South Africa in the HIV context. Sex workers had used condoms to make sure sexually transmitted diseases were reduced. The community had energized to protect, promote and facilitate the civic rights of sex workers, so that they were not arbitrarily arrested, so their children could go to school, and so on. From 1992 to 1998, condom use rose, and sexually transmitted diseases were reduced to very low levels. A Lancet study went on to confirm similar results in other parts of India.
Another example concerned tuberculosis control. He cited one community where open air hospitals were established, which were well ventilated. When people sneezed, they were also encouraged to used handkerchiefs. That hospital was more effective than closed-in hospitals.
Responding to the representative of Chile, he said he was happy to note that that delegation had recognized the issue of elderly people. They were neglected members of society. Like people with mental disabilities, they were castigated as people that lacked capacity. The Convention on disabilities had produced a paradigm shift of sorts in changing people’s attitudes towards the abilities of disabled persons. It was rare for the elderly to have a say in various matters, especially in developing countries like India. “Capacity” did not merely mean giving them the right to decide, but also to facilitate their decision-making process. They needed to be given time to make decisions, and needed people to counsel them. It was important, in the context of achieving good health outcomes, especially in HIV. Treatment and adherence to treatment in the context of HIV/AIDS was found to be better when people were giving adequate guidance.
To the representative of Sweden, on how the importance of informed consent could be conveyed to health-care providers, he noted that developed and developing countries differed in that respect. In developed countries, victims need only quote the law and the violator was taken to court. That was true for situations where people were not informed of medical interventions foisted on them, particularly in specialized settings. But, in developing countries, there was no modicum of informed consent, whether five-star hospitals or otherwise. Health-care providers were the major culprits. That could change, by making health-care providers more aware that informed patients produced better health outcomes and produced better doctor-patient relationships. He had no good practices to share. But, it was true that HIV-positive people who were better informed about their disease tackled their situation better and were better able to inform their doctors about their problems, leading to better health outcomes.
He was a great admirer of Cuba’s spirit of international cooperation, he said. Brain drain was a big problem for a developing country, not just in the medical profession, but in the legal profession and others. Because of the economic recession in developed countries, many people from India who worked abroad had returned to their homelands. But, for others, brain drain continued to be a serious problem. The problem could be addressed, and the Cuban tradition of international cooperation was perhaps something that other countries should emulate.
The representative of Switzerland stressed that informed consent was fundamental in the right to health. Looking at the relations of asymmetric information between the patient and health-care staff, he asked the Special Rapporteur who was the best person to bridge those gaps. Also, what role was played by schools in providing health care for children?
Malaysia’s delegate said the issue of informed consent was central in ensuring that populations had control over their own health. His delegation would appreciate it if the Special Rapporteur would explore in the future how the pursuit of poverty reduction intersected with the provision of health care. Another area that had not received enough attention was the international framework regarding the right to health. Indeed, dialogue on the right would be incomplete without considering the access on a worldwide basis to vaccines, as well as fair and equitable sharing in support of public health.
South Africa’s representative welcomed the breadth of the Special Rapporteur’s report. He also congratulated his colleagues from Brazil in their achievement in the Human Rights Council of introducing a resolution that was ultimately adopted by consensus. He wondered if the Special Rapporteur was familiar with the global initiative his delegation and several others had supported in the General Assembly that established 10 priority areas for considering health, including the high impact on health of non-health related issues, such as climate change and trade.
The representative of Brazil expressed support for the Special Rapporteur’s report and mandate. He said his Government found it a challenge to try to control medical research that involved Brazilian patients, but was being conducted under the auspices of much wealthier countries or institutions of an academic or corporate nature. Much of that research targeted knowledge of tropical and communicable diseases. The approval systems were often weak, and typically there were asymmetries between the research actors from developed countries and their in-country partners and patients. As examples of those targets, he pointed to pregnant women with HIV or Indians infected with diseases.
Citing data as another issue in those projects, he said it often flowed out the developing country to the developed one, where it was treated by a team of researchers. If there were profits, the country that had contributed to the research often received nothing. Among other problems, there was often a diversion of local research resources.
Elsewhere, countries like his often encountered problems in ensuring informed consent, particularly to allow treatments and access to medicines. That particularly applied in the knowledge about, and acceptance of, generic drugs. Also, the right to data was important, particularly if a patient wanted to get a second opinion. He underlined the recent adoption of the Human Rights Council of resolution 12/24 on access to medicines.
The representative of India asked about the importance of informed consent in drug trials in developed countries. There were instances where economic considerations eclipsed that right. How did Mr. Grover propose to strike a balance between informed consent, poverty and illiteracy?
Responding to Switzerland’s question on asymmetry, Mr. GROVER said, going by his experience in the last 20 years, counselling was very important. Counselling entailed imparting information over a long period. It was not a one-off activity. Therefore, there was a need to invest in counselling, thus, enabling good health outcomes in the long run. In clinical trials, time was of the essence, and that was not a good fit with the idea of investing time in counselling. But, in his experience with vaccine development, he had become familiar with good practices where even poor participants could provide informed and free consent.
As for who should give counselling, he said it was best done by peer educators who were properly trained. For example, sex workers should be advised by other sex workers. The same went for HIV-positive people.
In terms of clinical trials, he noted that, in places like India and Brazil, there were no laws to control such trials. As a result, multinational corporations were able to find naïve patients in such places. While ethical guidelines existed, they did not have the force of law.
To the representative of Malaysia and South Africa, he said he had not yet dealt with the relationship between poverty reduction and health outcomes. He took note of their concerns and acknowledged that that area must be explored. It was a challenging one and not easy to resolve.
As for the resolution mentioned by Brazil on access to medicines, he said he probably ought to take up that issue as part of his mandate and would make sure to familiarize himself.
On the issue raised by the representative of Malaysia on technical and financial assistance, he acknowledged that such assistance was always one-sided. A good example of good technical and financial aid was the Global Fund on HIV/AIDS, Tuberculosis and Malaria, which was controlled by Governments and civil society in the respective countries. He would elaborate on that, and the other, issues in the future. He had not dealt with technical issues involving vaccines.
On the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, he stressed its importance, although an article in the Financial Times had recently called for that concept to be debunked, saying the right to health should not be used as a basis for the equitable distribution of resources. He disagreed, and had written many rejoinders. The concept was often misunderstood, and people often did not comprehend its value.
To the South African representative, he said he was conscious that non-health issues often had a hand in determining health issues, such as trade and climate change. The concept of indivisibility of all rights was borne out by what that representative said.
He said he had long insisted on a medicine cartel. If one were to be set up, he was certain that prices could be slashed in two days. Alas, he had not been able to convince Governments on the merits of his idea.
To the representative of Brazil, he said he could not agree more with all his comments. He said laws were needed to tackle those issues in individual countries. Middle-level countries could help other developing countries. All the issues that representative mentioned were important. In future, he would devote attention to the issue of research.
On confidentiality, he said he had long posited that consent, confidentiality and non-discrimination were part of a continuum. But, the concept of confidentiality was highly esoteric, and would only become a matter of public interest if there was a countervailing issue of higher public interest.
The representative of the United States commented that President Obama was seeking to establish accessible and affordable health care for all. There was a perception in other parts of the world that the United States was not supportive of that. That was a misperception.
Statement by Special Rapporteur on Right to Food
OLIVIER DE SCHUTTER, Special Rapporteur on the right to food, said there were a billion hungry people in the world today, even though the world produced more food than ever before. The reason was that for too long the world had focused on increasing food availability, while neglecting questions of food distribution and food production. He had increasingly come to realize the central nature of sustainable food production to realizing the right to food. Conventional forms of agricultural production were contributing to climate change. About 75 per cent of plant genetic diversity has been lost, as farmers worldwide had abandoned local varieties for genetically uniform varieties that produced higher yields under certain conditions. And most of mankind now lived off no more than 12 plant species. The decreasing genetic diversity within crops was their source of vulnerability to weather-related events and to attacks by pests or disease.
He had produced a report on national seed policies, in consultation with the World Intellectual Property Organization (WIPO) and the International Union for the Protection of New Varieties of Plants (UPOV), based on contributions from scientists. Since the global food price crisis of 2007-2008, a large number of countries had sought to support food production by providing farmers with a better access to seeds, which were an essential asset for food production, together with land and water. Governments had had to arbitrate between two seeds systems: the commercial seeds system, made of varieties that are uniform and stable and, therefore, could be certified under seed regulations and catalogued; and informal or farmers’ seed systems, consisting of local varieties.
He said access and innovation should be encouraged in both those systems, each of which has specific functions to fulfil. In terms of commercial seeds, which produced high yields under the right conditions and when combined with appropriate inputs, certain varieties could have improved nutritional value, or specific disease resistance. Certain crops were suitable for saline, dry or marginalized soils. But, the expansion in the use of such varieties, generally protected by intellectual property rights, created problems. They accelerated the loss of agrobiodiversity. In addition, breeding efforts were directed towards specific needs -- high-productivity maize or disease-resistant rice -- but might fail to address the needs of farmers.
He said the seed sector was extremely concentrated in the hands of a limited number of northern-based firms, with the top 10 seed companies controlling 67 per cent of the global proprietary seed market. The world’s largest seed company alone, Monsanto, accounted for 23 per cent of that market. The top three companies, Monsanto, DuPont and Syngenta, accounted for 47 per cent of the market, including 65 per cent of the maize seed market and over half of the proprietary soybean seed market. They reaped a disproportionate portion of the final value of the crop. The inputs they provided might not be sustainable. Perhaps antitrust legislation could be used more proactively, to tackle such concentration.
He said the report was in favour of supporting efforts by developing countries to establish an intellectual property rights regime that suited their development needs. Those countries should be given technical advice to facilitate the adoption of sui generis systems for the protection of plant varieties, including by UPOV and WIPO.
He noted that stronger intellectual property rights on plant varieties was justified by the need to provide incentives, and thus to reward, for innovation. Yet, excessive protection of intellectual property rights in agriculture was an obstacle to the very innovation that was being encouraged. Promoting innovation through intellectual property rights turned research and development towards meeting the needs of farmers in rich countries, while the needs of poor farmers in developing countries had gone comparatively neglected. Only 6 per cent of privately funded agricultural research was focused on developing country agriculture, and very little research had benefited tropical maize, sorghum, millet, banana, cassava, groundnut, oilseed, potato or sweet potato, for example, since public research centres had not made up for the lack of interest of the private sector in those crops.
As for the farmers’ seed systems, on which a vast majority of farmers in developing countries depended, he said varieties bred and selected by farmers were exchanged or traded. Those varieties were often best suited to the local agro-ecological environments. No restrictions were imposed on the reuse of seeds, in the absence of intellectual property rights restrictions. The genetic diversity within those seeds may be a source of resilience against certain attacks from nature. Poor farmers depended on those systems, but so did the rest of society. Professional plant breeders and seed companies relied on the development of those plant resources for their own innovations.
He said the farmers’ seed systems must be better supported, and innovation within those systems must be encouraged. Initiatives favouring the development of local seed exchanges could be scaled up, by the support of community seed banks and seed fairs. Community seed banks existed in the Philippines and India, and frequently emanated from grass-roots organizations. In India, the organization Navdanya had established 34 seed banks in 13 states across the country in the last two decades. Operating through a network of community seed banks in different zones helped maintain and improve agricultural biodiversity. In Mali, some seed banks contained more than 350 samples of 70 different species.
Up to now, States had put much more effort into promoting innovation in the commercial seed systems than in enhancing innovation in the farmers’ seed systems, he said. Biotech-industry patents were defined and enforced at international level through UPOV. All World Trade Organization members must ensure some protection of plant varieties under the TRIPs Agreement. However, farmers’ rights were only recognized in principle, and in vague terms, in the International Treaty on Plant Genetic Resources for Food and Agriculture, concluded within the Food and Agriculture Organization (FAO) in 2001 and in force since 2004. There were no forums within which to discuss farmers’ rights. A full implementation of farmers’ rights, as stipulated under that Treaty, could significantly contribute to restoring balance.
He stressed that both systems deserved to be supported and strengthened. But, the farmers’ seed systems risked being marginalized and displaced by seed certification schemes and the promotion by Governments and the private sector of uniform and commercial seeds. At the same time, small farmers should be given a real possibility to choose. If they considered commercial varieties to be more suitable to the kind of farming they wished to practise, they should have access to seeds at an affordable price, and in conditions that did not result in a dependency on firms whose economic power remains unchecked. If they wished to maintain the practice of exchanging and trading seeds that they had themselves improved in the fields, they should be supported in doing do.
The representative of Sweden, speaking on behalf of the European Union, stressed that the need for innovation must be reconciled with the right of small-scale, particularly poor farmers, to continue to produce. Mechanisms should be put in place to incorporate small farmers in decisions related to the conservation of plant genetic resources. Farmers should also be put at the centre of research. Further, a lot of participatory breeding had been done and high impacts attributed to that practice. Why, then, were such participatory breading programmes being adopted so slowly? Also, could he make any recommendations on overcoming obstacles women faced in appropriating seeds?
Thanking the Special Rapporteur, Cuba’s delegate noted that his was, perhaps, the most universally supported mandate mechanism in the human rights realm. Her country had supported a resolution on it nearly every year. Cuba hoped that his current report would help countries of both the South and the North in gradually resolving the global food crisis, which had had a particularly negative impact on countries of the South. The report’s focus on seed policy was particularly welcome, as was its consideration of the need for agro-diversity. She agreed with the remarks by Sweden, on behalf of the European Union, that the issue of genetic biodiversity was fundamental. In the future, could the Special Rapporteur provide follow-up on that issue?
The representative of Ireland, referring to the “scandal of hunger”, said it was a failure of the world’s collective responsibility that so many people went to bed hungry each day. For its part, Ireland aimed to devote 20 per cent of its development programme to ending hunger. It believed investments should be made in agriculture and to protect women farmers, especially. Considering the possible impact of climate change, it was essential to raise crop yields and improve the livelihood of rural farmers. Could the Special Rapporteur expand on the topic of public research programmes? Also, how could regional policy frameworks support the right to food? Did he have any further examples of good practices in supporting poor and women farmers? Could he expand to some degree on the value of traditional knowledge?
The representative of Brazil said his country was a staunch supporter of the right to food. It was funny to see the Special Rapporteurs on the rights to health and food side by side, since his country saw similarities between those two areas, including barriers to entry and concentrations of power. They were also subject to the struggles over intellectual property. That was particularly true in the case of the right to food, and in the area of seeds it had been a big dilemma for Brazil. Indeed, when considering agriculture around the world, it would seem that most developing countries had a natural competitive advantage. But, international market conditions had to be considered. Market failures were often said to harm small farmers, but that presupposed that the market was liberalized, and the agricultural market was not. Indeed, there was a problem of agricultural overproduction in many developed countries, due to the economic illogic of subsidies.
In Brazil, President Lula had identified hunger as a priority. However, given its size, Brazil had found family agriculture was a difficult means of attacking hunger country-wide and a two-pronged approach was being used. What had made the difference in Brazil’s support for both family agriculture and big agro-business was the Government’s emphasis on agricultural resources. Development of agriculture in developing countries should be emphasized. South-South cooperation should also be a matter of interest, as should the study of international trade practices.
Lesotho’s delegate asked the Special Rapporteur to share his thoughts on policies that could be employed to strike a balance, or coexistence, between commercial and farmers’ seed systems. How could that be practically addressed in the context of timely procurement of seeds? How could seed stocks be saved and secured? How could vulnerable societies address shortages? In some regions, there were mechanisms to harmonize seed standards and the orderly movement of seeds. Did the Special Rapporteur anticipate considering the impact of the cross-cutting seed policy initiatives and frameworks that had been introduced in different regions, and how they would relate to the right to food?
Mr. DE SCHUTTER responded to the representative of Sweden, saying that farmers were left out of the decision-making process because of prejudice towards them. They were not seen as innovators, because they did not work in laboratories. Meanwhile, laboratories improved varieties without understanding the social function of those plants. For example, in improving the yield of the cassava, they failed to understand that the lure of the cassava was that it could remain in the ground for months, eliminating the need for storage. He also noted discrepancies in the amount of investment devoted to biotechnology, when small investments were sometimes immensely useful, as well. He cited an example in Peru, where, for only $10,000, a researcher “cleaned up” a traditional plant with great results.
He confirmed the fact that when men usurped women’s role in buying seeds, it affected women’s position in the household. When women selected the seeds, taking care to choose the best seeds for the next harvest, they were playing a major role in deciding priorities. Some interlocutors had expressed their concern to him that introducing new varieties of seeds meant it shrank a woman’s decision-making space.
On large-scale land leases, he had embarked on an initiative in June to ensure that land acquisition by large investors benefited local communities. That initiative had attracted support from countries like Switzerland, countries of West Africa and Spain. It was a unique opportunity to reflect on how farmers’ rights and land acquisition related to each other.
In his next report to the Human Rights Council, he would focus on the role of transnational corporations and the private sector in the food production chain. He would return to the issue of concentration in the food chain and how it could be better tackled. At the moment, small farmers had no choice regarding where to buy inputs from and where to sell their products. They were price-takers at both ends of the chain, which was of serious concern to him. Seed policy was just one area of concentration of economic power. There were others.
Turning to the representative of Ireland, he noted that country’s strong historical commitment to the right to food, since it knew, even better that most developing countries, about the danger of over-investing in uniform crops, having gone through the potato famine of the 1800s. Diversity was a source of resilience.
When research was led by the private sector and incentivized by the intellectual property rights regime, very little of that research ended up benefiting poor farmers. It was well documented that only 6 per cent of investment had been oriented to the needs of poor farmers. Also, there was too much emphasis on researching plants, genes and seeds, and too little on harvesting technologies, water technologies, agroforestry and agro-ecological techniques that could raise yields without involving the use of high technology. He stressed that, with the right conditions, farmers could make a decent living. That issue should be placed high on the agenda of the food security meeting scheduled for next month.
On good practices of women farmers, he had collected some case studies and presented them in a background document to his paper from India, Senegal, and other places.
On developing an intellectual property rights regime that was balanced, he brought up the example of community registers in Senegal, which listed peasant varieties. It seemed to work well.
On food distribution, he noted that biotechnology companies had made good progress in the last 10 to 15 years, leading companies to obtain patents on DNA sequences. To promote further research, companies must now overcome patent thickets. Companies were naturally obliged to merge with one another, to overcome obstacles to research. It led to situations where one company owned 43 per cent of the proprietary seed market. Some 10 companies controlled 67 per cent of the seed market. That was not a real market. The market was controlled not just horizontally, but also vertically, as illustrated by agro-chemical companies that were now buying seed companies, such as Dow and Monsanto.
The representative of Argentina expressed concern over the global food crisis. Argentina had given its support to a number of regional initiatives to deal with the crisis. It was also participating with South-South initiatives. It welcomed the fact that this session of the General Assembly and the Human Rights Council sought to promote the protection of all human rights. However, there were other forums that were perhaps more appropriate for addressing the food crisis, such as the Food and Agriculture Organization and the World Trade Organization. Extortionist policies from the world’s leading producer countries had led to tariff distortions, thus, fuelling food insecurity. Could the Special Rapporteur identify the relationship between the protectionist trade policies and the right to food?
The representative of Malaysia agreed there was a need to promote innovation in the commercial seed market. Could the Special Rapporteur provide more information on other seed exchanges? The report focused on the dominance of seed companies, but his delegation wondered if the Special Rapporteur had found situations where the opposite happened: Where global seed monopolies led to lower prices that forced local farmers to use those seeds, thereby reducing biodiversity?
China’s representative said the global food crisis threatened the developing countries, in general, and the least developed countries, in particular. Her delegation supported the appeal for funding to help developing countries increase their production and thereby realize the right to food. What kinds of harmful impact did the global food and economic crisis have on the farmers of the developing countries and their realization of the right to food? Would he tackle those issues and priorities in future work? How would he cooperate with other actors in the United Nations system in the future?
The representative of the World Intellectual Property Organization (WIPO) said he would comment on two aspects of the report, contained on paragraphs 39 and 40. Paragraph 39 dealt with the aim of the system established by UPOV and some clarifications were needed. The aim of the UPOV system, which was based on the relevant convention, was to encourage the development of the new varieties of plants for the benefit of society. It was not just to encourage standardization.
Moreover, regarding paragraph 40, which related to the relationship between breeders rights and formal seed systems, there had been no change in the 1991 act of the UPOV Convention with respect to the need for the breeder’s authorization for selling the variety of the seed. Further, it did not extend to private acts. Activities of poor farmers that were done privately and for non-commercial purposes were excluded. That applied to the seed saved by the farmer.
The representative of the European Commission said the Commission was closely following the Special Rapporteur’s work. It welcomed the focus in the current report on the most vulnerable. On one hand, there was a need to encourage innovation in commercial research. On the other, more access to seeds was needed. The message seemed to be not to favour one over the other, but strengthen both. How did he recommend that be done? Also, on the recommendation for the establishment of a regime for protecting intellectual property rights, he asked how the granting of rights could contribute to the right to food. Could he provide examples where the right to exchange traditional seeds was limited by property rights?
The United States delegate said her country was dedicated to promoting food security and was working to fulfil the “Joint Statement on Promoting Food Security” [issued at the Group of Eight meeting in L’Aquila, Italy]. How could human rights norms contribute to achieving those goals? Fundamentally, the United States believed that well-functioning property rights regimes contributed to all farmers having access to quality seeds. In that regard, Governments should encourage collaboration to meet the needs of farmers, particularly small farmers and women. She noted that the United States undertook efforts to ensure genetic biodiversity, with 44 million samples going to facilities around the world each year.
Guatemala’s delegate said there was no reference in the report to indigenous peoples, who had protected biodiversity for centuries. It was their actions that had allowed seeds to be passed down for generations. Yet, those people were being forced to buy seeds, which contravened their way of life. Could the Special Rapporteur provide more information on how the two forms of life -- of indigenous peoples and of others -- could be reconciled?
The representative of the Food and Agriculture Organization (FAO) said the right to food was an essential element in addressing the food crisis. The gap between the increasing number of persons lacking food and the vision of a world free from hunger had to be closed. The FAO had launched a tool box that addressed all aspects of accomplishing the right to food, including legislative measures, monitoring mechanisms, assessments on the right to food and budget work, among other things. The right to food had been integrated in the new FAO policy framework and would be presented at its annual meeting in November. She reminded delegations that the World Food Summit would be held in Rome in November and would, among other objectives, seek to expand food security.
Mr. DE SCHUTTER turned to the question of equity and the impact of the international trade regime on developing countries. It was not acceptable for the market to be distorted by limited access and by subsidies. At the same time, he had written a report stating that freer trade would bring more challenges, such as the increased “dualization of farming”, with large producers benefiting more than smaller producers. It would also likely result in most of the benefits accruing to large buyers and trading companies. Brazil had experience in this; it has seen the retail price for coffee dive over time. Certain conditions were needed for the achievement of equitable trade, beyond simply opening the markets.
He said the global supply chain rewarded uniformity, because buyers expected uniform produce. That was what had led, in part, to a loss of biodiversity. However, the issue was complex and not something he wished to overly simplify.
To a question from the representative of Malaysia, he expressed agreement that “innovation” encompassed more that an improvement to plants. Innovation had an institutional dimension. It involved the issues of governance, delivery and infrastructure.
Asked to give examples where new seeds were priced so low that farmers were tempted to abandon local varieties in favour of those seeds, he said it was a regular occurrence. Sometimes seeds were provided to farmers for free by organizations wishing to help those farmers. But, they did so without considering the long-term consequences. He was currently examining that issue.
To a question from the European Commission on ways to balance innovation in agriculture with improved access for farmers, he repeated what he had said in his report on allowing farmers to define the terms of research, so that their views were taken into account. He reiterated the importance of promoting publicly-funded research.
Responding to China, he said the economic crisis had produced a paradox: prices were too low for producers, but too high for consumers. The world had a system where farmers’ profits were being squeezed, and where consumers were not receiving adequate support in exercising their right to food. That was a political economy issue.
To the UPOV, he reiterated his view that the intellectual property rights regime rewarded standardization and homogeneity, because it concentrated on a small number of crops for which there was a market. The system led to the phenomenon of orphan crops and genetic deterioration. The UPOV itself had said the same. He encouraged the UPOV to keep things in perspective: the intellectual property rights regime encouraged innovation for a segment of the public where there was a market -- one that was solvent and interesting to invest in. Ultimately, the important point was who benefits and who loses from a strengthened intellectual property rights regime. Also, FAO guidelines stipulated that States should promote access by medium-sized and small farmers to research results that could enhance food security. But, that was not happening at the moment. The UPOV had not addressed that issue in its intervention.
He gave an example of where farmers’ rights to exchange seeds had been limited: in France, one organization had decided to sell its own seeds, but was sued by seed companies for unfair competition -- because its seeds were uncatalogued. There was an understanding in the European Community that the issue needed to be addressed.
To the representative of Guatemala, he said his visit to that country was interesting and important. There was a drought there. He agreed on the need to support indigenous peoples’ contribution to the issue. A background document in his report provided more information.
To the FAO, he said he was proud to have worked with it on the reform of the Committee on World Food Security, creating a global strategic framework that would hold States accountable on their achievement of the right to food. It was the single most important thing he had achieved in his mandate.