Working Group on Right to Development Considers Draft Convention at Next Session
Labour leaders, lawyers, journalists and citizens peacefully advocating for democratic reform are often jailed in reprisal for their engagement with United Nations mechanisms, the Independent Expert charged with investigating their plight told the Third Committee today as delegates took part in a series of virtual dialogues on broad human rights questions.
“The advice is clear: If States really want to protect human rights defenders, then do not put them in prison for long terms for peacefully defending the rights of others,” stressed Mary Lawlor, Special Rapporteur on the situation of human rights defenders, one of six Special Procedure Mandate Holders to present their findings.
She voiced concern that many human rights defenders are sentenced under vague charges of treason, subversion or terrorism, are held in harsh conditions and are at risk of being sentenced to death. Some have died in prison after being given a long sentence following an unfair trial. “I believe there is a responsibility on States who value international human rights norms to work for the release of those detained elsewhere,” she emphasized.
In the ensuing dialogue, delegates objected to the widespread misuse of counter-terrorism legislation and other national security laws against human rights defenders, with an observer for the European Union calling for a safe environment for them, both online and offline. Meanwhile, the representative of the Russian Federation underscored that the activities of the human rights defenders must be legal, to which Ms. Lawlor replied that State behaviour must also meet international standards. Cuba’s delegate accused the United States of distorting the reality in his country, stressing instead that it should address its own problems, “for example, the unconstitutional use of their own laws to illegitimately attack human rights defenders”.
Among other briefers was Clément Nyaletsossi Voule, Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, who focused on the shrinking of civic space in many countries during the pandemic. Today’s choices will define whether the world is at “a moment of breakdown or breakthrough”, he said, detailing evidence of increased attacks against people who organize to protect their communities from the climate crisis. These repressions were led by powerful actors, including transnational fossil fuel, agribusiness and financial institutions. The world cannot address climate change if young climate activists are put in jail or subject to legal procedures, he observed.
Later in the day, the focus shifted towards the right to development, with Koen de Feyter, Vice-Chair of the Expert Mechanism on this right, noting that the mandate just launched its operations on 1 May 2020, having been established in 2019. Zamir Akran, Chair‑Rapporteur of the Working Group on the Right to Development, meanwhile said that that body recently considered a draft convention on the right to development prepared by experts from all five regions of the Human Rights Council. At its next session in November, the Working Group will consider the draft, along with any State inputs received. Member States will then take a decision on how to advance the process.
Also briefing the Third Committee today were the Chair of the Working Group on the issue of human rights and transnational corporations and other business enterprises and the Special Rapporteur on the Right to Development.
The Third Committee (Social, Humanitarian and Cultural) will reconvene at 10 a.m. on Monday, 18 October, to continue its discussion on human rights.
Interactive Dialogues – Human Rights and Transnational Corporations
SURYA DEVA, Chairperson, Working Group on the issue of human rights and transnational corporations and other business enterprises, presented her report (document A/76/238), which unpacks the implications of Principle 9 of the United Nations Guiding Principles on Business and Human Rights for States in negotiating new international investment agreements or reforming old ones. She explained that Principle 9 outlines that States “should maintain adequate domestic policy space to meet their human rights obligations when pursuing business-related policy objectives … for instance, through investment treaties or contracts”. While it has direct implications for States, it also has indirect implications for foreign investors availing the protection of such agreements, and for communities affected by investment-related projects. International investment agreements confer legally enforceable rights upon investors, but hardly any obligations for human rights and the environment. Despite being not parties to these agreements, investors can rely on them to initiate arbitration proceedings against States for an alleged breach of investment-protection standards.
However, she said States or communities affected by investment-related projects do not enjoy such an option. She voiced concern that these imbalances and inconsistencies in international investment agreements incentivize irresponsibility on the part of investors. The asymmetrical protection offered by these agreements ‑ and the lack of transparency in investor-State processes ‑ creates incentives for investors to protect their investment and pay inadequate attention to their human rights responsibilities under international standards. Investors sometimes invoke protection under international investment agreements to obstruct attempts by affected communities to hold them accountable for human rights abuses. She advised that states should terminate or urgently reform all existing international investment agreements in line with her recommendations and those offered in her report.
Outlining reform pathways, she suggested a reorientation of the purpose of investment. Realizing human rights should be a core purpose of attracting foreign investment, and in turn, this investment should attenuate economic inequality, rather than entrenching it further. Also, States must ensure that international investment agreements do not undermine their duty to regulate investors in such a way that all internationally recognized human rights are adequately protected. She further suggested that these agreements should include investors’ legally enforceable obligations regarding human rights and the environment, and that States should create access to remedy pathways for affected communities within international investment agreements.
When the floor was opened for questions and comments, several representatives welcomed the emphasis on Principle 9. An observer for the European Union asked how States can be more effective in translating their policy commitments into practice, and in assuring that the idea of binding human rights obligations gains more traction, and results in better access to remedy.
Many delegates pointed to national initiatives, with the representative of Japan drawing attention to her country’s National Action Plan on Business and Human Rights, launched in October 2020. Japan considers it important to promote and protect the human rights of people adversely affected by business activities, she added. The representative of Iran said his country engaged with the Working Group in drafting a convention to regulate the activities of transnational corporations. However, without addressing illegal unilateral coercive measures, a regulatory approach will not suffice, he emphasized, pointing to the “horrendous” imposition of such measures by the United States. The representative of the United States meanwhile noted that the process of developing national action plans has fostered improved policy coherence and asked about the key priorities of the Working Group for 2022. The representative of the Russian Federation, while agreeing that potential investment agreements should be used to promote human rights, sustainable development and responsible business activity, nonetheless opposed the conclusion that international investment agreements signed before 2010 are unbalanced, inconsistent and irresponsible.
Mr. DEVA, responding, recommended that all States continue to raise awareness about the Guiding Principles, adding that there is no conflict between COVID-related recovery of the economy and promoting human rights. COVID‑19 should be viewed as a wake-up call to create a more inclusive, sustainable economy. There is an economic benefit for investors to behave in a responsible manner, with the potential to create win‑win situations for both themselves and society. It is vital to take a more holistic view of the development process, he stressed.
Also participating in the interactive dialogue were representatives of China, Spain, Italy, Luxembourg, Ireland, Chile, India, France and Ethiopia.
Freedom of Peaceful Assembly, Association
CLÉMENT NYALETSOSSI VOULE, Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, said today’s choices will define whether the world is at “a moment of breakdown or breakthrough” ‑ and States must decide whether to create an enabling environment where all individuals can come together in times of crisis to find solutions, or to continue repression against civil society and securitized, top-down approaches to global challenges. Noting with regret a deterioration of civic space in many countries during the pandemic, he reiterated that civil society should be seen as including partners ‑ not enemies ‑ on the path to rebuilding societies. Spotlighting the value of civil society in the field of climate action and just transitions, he cited recognition by the Intergovernmental Panel on Climate Change that “civil society is to a great extent the only reliable motor for driving institutions to change at the pace required”.
Turning to his report (document A/76/222), he detailed evidence of increased violent repression and attacks against people who organize to protect their communities from devastating effects of the climate crisis, noting that these repressions were led by powerful actors, including transnational fossil fuel, agribusiness and financial institutions. In addition, these attacks resulted in the portrayal of climate protests as national security threats, rather than as drivers of solutions and meaningful action, he warned, asking how the world can address climate change if young climate activists are put in jail or subject to legal procedures for the legitimate exercise of their human rights.
He said a sustainable future will only come through if States harness the power of civil society ‑ indigenous peoples, young people, children, women, and other groups ‑ in addressing climate change, outlining several steps that will enable respect for their rights to peaceful assembly and association. He called on States to ensure an enabling environment for civil society, recognize the value of climate-related protests ‑ including civil disobedience ‑ as well as ensure inclusive participation in climate and just-transition policies. Moreover, States must prevent and protect climate defenders from attacks, ensure accountability as well as end legal harassment and unlawful surveillance. Emphasizing that effective climate action and just transitions depend on the ability of individuals to mobilize and shape public opinion and decision-making without fear, he urged the Sates and the United Nations to ensure freedom of peaceful assembly and of association.
When the floor opened for comments and questions, several delegates drew attention to restrictions on the right to peaceful assembly around the world, with the representative of Ukraine stressing that since the temporary occupation of Crimea by the Russian Federation in 2014, those authorities have restricted such rights on the Crimean Peninsula. Participants in peaceful assemblies have had their data collected to enable State interference, while in 2020, the authorities issued 17 decrees on penalties for peaceful assembly. The representative of the United States pointed to Iran, where protests broke out in July over water shortages. Security forces then reportedly fired on the protesters, resulting in multiple deaths. China, meanwhile, denies freedom of peaceful assembly as a matter of State policy, she stressed, most notably in Xinjiang, Hong Kong and Tibet. She asked how the international community can confront these growing threats to freedom. The representative of China blamed the United States and others for smearing other countries for suppressing freedom of assembly, but when it happens on their own soil, they call protesters “thugs” and “extremists”. The representative of Iran rejected accusations against his country by the United States delegate, stressing that the violent response by police in that country to anti-racism protesters is well-documented.
Several delegates highlighted the important role of civil society and human rights defenders, with the representative of Timor-Leste noting that civil society and international society movements played an important role in its quest for independence. Civil society is a necessary part of State-building and democratic consolidation, he assured. The representative of Morocco said there is no discrimination in her country and that the freedom to demonstrate in public areas is guaranteed. There are many legal guarantees, she continued, including a system of authorization for peaceful assembly. An observer for the European Union, noting that the right to free and peaceful assembly is essential for the work of civil society and human rights defenders, asked how the private sector can protect rights of these actors.
Offering a nuanced view, the representative of the Russian Federation said that the human rights agenda is separate from climate change, and the issues should be considered separately by competent specialists. It is unjustified to talk about “green activists” as participants in the climate agenda.
Representatives of Switzerland, United Kingdom, Dominican Republic, Czech Republic, India, Sweden and Cuba also spoke.
Mr. VOULE responded that countries recognize the link between freedom of assembly and climate justice activism. Stressing that climate change cannot be separated from human rights issues, he said the right to life and to water access, for example, are undermined by climate change. To comments regarding China, he said that unnecessary and disproportionate use of force cannot be justified, adding that any force must be used as a last resort. He recommended that authorities use negotiation as a tool and attempt to address the root causes of protest, reiterating that peaceful assembly and protest are tools recognized in any democratic society.
To the question posed by the United States delegate, he said States should publicly recognize ‑ at the highest level ‑ the work of civil society and the right to peaceful assembly as essential to advancing climate justice. People who are working hard to raise awareness about climate change should not be vilified. Governments should place the protection of human rights defenders at the centre of their policies, he said, underscoring that donor countries can help fund the climate justice movement. “It is not a political issue, it is about the survival of our planet,” he said.
MARY LAWLOR, Special Rapporteur on the situation of human rights defenders, presenting her report (document A/76/143), recalled that since her mandate began two decades ago, many human rights defenders have been sentenced under vague and ill-defined charges often relating to treason, subversion or terrorism. Many are held in harsh conditions, suffer from ill health and are deprived of adequate medical attention. Some are at risk of being sentenced to death, and some have died in prison after being given a long sentence following an unfair trial.
Between 1 January 2020 and 30 June 2021 alone, she said, the mandate sent 28 communications to 22 Member States on the long-term detention of 148 human rights defenders. Of those, 104 had been convicted and 44 were at risk of being sentenced to 10 years or more in prison. They include labour leaders, lawyers, journalists, citizens peacefully advocating for democratic reform and people jailed in reprisal for their engagement with United Nations mechanisms.
“The advice is clear ‑ if States really want to protect human rights defenders, then don’t put them in prison for long terms for peacefully defending the rights of others,” she stressed. That is simply in accordance with the 1998 Declaration on Human Rights Defenders and international standards to which all Member States have agreed. However, States are able to continue these violations because they ignore the international treaties to which they have committed, nearly always with negligible consequences, she explained. Indeed, in response to her call for submissions to the present report, not one State acknowledged holding any human rights defender in long-term detention. “I believe there is a responsibility on States who value international human rights norms to work for the release of those detained elsewhere.”
When the floor was opened for questions and comments, the representative of the United Kingdom observed that the report highlights the widespread misuse of counter-terrorism legislation and other national security laws against human rights defenders. She asked the Special Rapporteur for advice on how Governments can defend civic space from such misuse. Along similar lines, an observer for the European Union urged States to maintain a safe environment for human rights defenders, both online and offline, including by preventing the misuse of anti-terrorism legislation and other national security laws. Women human rights defenders are especially targeted. As the full extent of the problem is not known, he asked how Member States can improve the documentation and monitoring of cases of detained human rights defenders.
The representative of the Russian Federation welcomed the attention to the work of those who defend human rights and fundamental freedoms. “This activity, however, must be legal,” he said. It is unclear how the Special Rapporteur assess the legality of such activity when there is a judicial verdict in the case. The representative of Viet Nam voiced concern about inaccurate information in the report and called on the Special Rapporteur to ensure that the information received is verified and reliable. The representative of Cuba strongly rejected the condemnations of his country made by the United States, as well as the international campaign to distort reality. “They should deal with the problems in their own country, for example the unconstitutional use of their own laws to illegitimately attack human rights defenders,” he stressed, pointing, in particular, to those who defend the rights of migrants.
Also participating in the interactive dialogue were representatives of Italy, Germany, Mexico, Egypt, Spain, Brazil, Lichtenstein, Israel, Pakistan, Poland, Ireland, Bahrain, Slovenia, Switzerland, France, Dominican Republic, United States, Czech Republic, United Arab Emirates, Norway, Indonesia, China, Saudi Arabia, India, Myanmar, Luxembourg, Morocco and Algeria.
Ms. LAWLOR, responding, said she needs to work with States if the situation on human rights defenders is to be improved. The long-term jailing of defenders is something that could be readily addressed, she explained, suggesting that States could agree to release them now. On the views held by some that human rights defenders are not above the law, and that State law takes precedent over international law, she underscored her respect for the judicial independence of countries, while stating she would not turn a blind eye if the standards applied are not aligned with the Universal Declaration of Human Rights or the 1998 Declaration on Human Rights Defenders.
She said human rights defenders are not above the law ‑ nor are States above international standards. Defenders are people who have made it their life’s work to improve the rights of their fellow citizens, she said, adding that she is fully aware of the difference between defenders and political activists. To aid her work, Governments can publicly recognize the work of human rights defenders and advocate for those who are facing long prison terms. If defenders are imprisoned, then they should be released. They should also have access to lawyers and medical services. Stressing that they should not be jailed after unfair trials, she said 46 per cent of 61 countries cited in her report raised allegations of torture, which does not allow for a fair trial.
Noting that she has met with over 45 Permanent Missions to the United Nations in Geneva, she said she would welcome any decision by the Russian Federation to likewise meet. To the representative of China, she said she has a differing view of what a human rights defender does, while also noting her wish to visit Saudi Arabia. To the question posed by Israel, she said that the lesbian, gay, bisexual, transgender and intersex community is a priority for her mandate, expressing hope to raise their visibility when it is safe to do so. However, there are many States that have difficulties with this group, and they need to make progress in this regard.
Right to Development
ZAMIR AKRAN, Chair-Rapporteur of the Working Group on the Right to Development, updating on activities pursued over the year, that during the body’s twenty-first session, held virtually in May 2021, States noted the need to take measures to realize the right to development as a universal and inalienable human right, with several stressing that a legally binding instrument could ensure that the right becomes a priority. However, one group of States did not consider such an instrument an appropriate mechanism for realizing the right to development.
He said the Working Group also considered a draft Convention on that right, which was prepared by a group of experts from all five geopolitical regions of the Human Rights Council. Every effort was made during the drafting process to ensure transparency and participation by all stakeholders, including national human rights institutions with "A status" and non-governmental organizations with Economic and Social Council consultative status. At the next Working Group session, scheduled from 22 to 26 November 2021, the draft of the Convention, along with inputs received, will be considered. Member States will take a decision on the process for advancing the draft, with a view to its final adoption.
He emphasized that concerted political action is needed to ensure that COVID‑19 vaccines are available to all countries, with ensured access to health care and social protections for all considered global priorities. Information, medicines and tools to prevent, detect and treat COVID‑19 similarly should be available everywhere, to everyone, as the benefits of scientific advances and discoveries must be shared for the common good. Stressing that developing countries urgently need financial support to invest in a sustainable recovery, he said “a rights-based approach to the COVID‑19 recovery and response requires that the international community build better”.
KOEN DE FEYTER, Vice-Chair of the Expert Mechanism on the Right to Development, presenting two annual reports (documents A/HRC/45/29 and A/HRC/48/62) and noting that the mandate launched its operations on 1 May 2020, said the body is tasked with providing thematic expertise on the right to development in searching for, identifying and sharing best practices with Member States, and in promoting implementation of the right to development worldwide. It has two objectives, namely, to mainstream, reinvigorate and operationalize the right to development; and to enhance the ability of grass-roots organizations to advance this right. The Expert Mechanism will address three levels of responsibility: states acting collectively in global and regional partnerships; States acting individually as they adopt policies that affect persons not strictly within their jurisdiction; and States acting individually as they formulate national development policies and programmes affecting persons within their jurisdictions.
Its first thematic study (document A/HRC/48/63) was presented at the forty-eighth session of the Human Rights Council and elaborates on operationalizing the right to development in pursuing the Sustainable Development Goals. The second thematic study on racism, racial discrimination and the right to development will be submitted to the Human Rights Council in September 2022. He explained that the third will discuss inequalities and the right to development, the fourth will address the right to development in international investment law and the fifth will focus on non-State actors and the duty to cooperate. Describing efforts related to the pandemic, he said the Expert Mechanism issued a statement on COVID‑19 and vaccine nationalism. It also supported other statements and is engaging with relevant thematic issues, such as discussions around fair responses to the pandemic and to future health crises through a pandemic treaty or other means.
SAAD ALFARARGI, Special Rapporteur on the Right to Development, presenting his report submitted to the forty-eighth session to the Human Rights Council (document A/HRC/48/56), said that in the face of the climate crisis, Governments must guarantee the right to development to achieve a safe climate. There is also a need to align consumption and production at sustainable and equitable levels. In reports to the Human Rights Council and the General Assembly in 2021, the Special Rapporteur provided recommendations to meet these challenges in the key areas of inclusion, participation, access to information, and accountability and remedies. He encouraged all countries to attend the upcoming climate change conference to integrate these elements into decision-making processes.
In the ensuing dialogue, the representative of the Russian Federation said that while his delegation is interested in the Special Rapporteur’s report, the linking of climate change with the human rights agenda is “largely artificial”. Such work should be undertaken within the United Nations Framework Convention on Climate Change (UNFCCC) ‑ the main international instrument for climate change. On the Expert Mechanism, he shared the report’s conclusion that States are obligated to cooperate to solve problems and implement the Sustainable Development Goals. He also agreed with the experts’ views on the unacceptability of vaccine nationalism practiced by some States, he said.
The representative of Syria, noting that the right to development is inalienable, said that to uphold human rights, international law must be respected. She asked the Special Rapporteur about what could be done to countries that impose illegitimate unilateral coercive measures.
The representative of Brazil said the right to development is inalienable, a concept at the core of his country’s Constitution, which outlines the right to health care and education. For example, direct cash transfers benefit more than 40 million families, helping the local economy to create jobs and aiding human development. He asked about the potential of universal basic income in pandemic recovery efforts.
The representative of China, emphasizing the importance of international development assistance and voicing concern that some Western countries are doubling up on sanctions, asked how best to help developing countries with their development goals during a time of uneven post-pandemic recovery. The representative of Azerbaijan, speaking on behalf of the Non-Aligned Movement, stressed that the right to development, as agreed in 1986, is an inalienable human right. She urged the Organization’s human rights machinery to prioritize its operationalization and reiterated the proposal to convene a United Nations-sponsored high-level international conference on this issue. Algeria’s delegate similarly emphasized the importance of establishing an action-oriented system to operationalize this right and asked if the pandemic has created momentum for an internationally binding instrument. Egypt’s delegate added that environmental issues and fighting climate change are on the development agenda of his country. Emphasizing that the time is ripe for a binding international instrument on the right to development, he called on all stakeholders to support this initiative.
In continued dialogue, the representative of Cameroon asked for suggestions to strengthen promotion of the right to development, stressing that it must be considered in a comprehensive manner. An observer for the European Union underscored the importance of climate finance and reported that the bloc would contribute an additional €4 billion to the cause. As for the right to development, he expressed concern over the existence of numerous mechanisms charged with addressing the issue. The representative of Venezuela said the right to development has been impeded by unilateral coercive measures imposed by Northern countries. He joined the call for an internationally binding instrument to ensure the right to development and asked the panel about the impact of these measures on development. He also wondered about the possibility of advancing a convention on the right to development.
Mr. SAAD ALFARARGI, Special Rapporteur on the Right to Development, presenting his report submitted to the forty-eighth session to the Human Rights Council (document A/HRC/48/56), said it examines the climate challenges that developing countries face due to limited access to information, accountability and remedies, funding and technology. “There must be a just transition away from a carbon-based economy and towards one that is based on sustainable development and the protection of human rights,” he said. “This future can only be achieved by understanding the Paris Agreement [on climate change] in the context of the right to development and equity between the global North and South.” Noting that a climate-resilient economy will require significant funding for developing countries, he said fostering diversified, “green” economies with climate-resilient development will bolster the right to development and adaptation measures in developing countries.
“Climate change is a global human rights threat multiplier,” he said. It already affects a wide range of internationally guaranteed human rights, including the right to development. He went on to emphasize that the burden of climate has fallen on the most vulnerable parts of the global society: those who have not yet reaped the benefits of development and are unable to shield themselves or recover from disasters aggravated by climate change. The effects are disproportionate for many small islands and developing States, he added, noting that the loss and damage to these countries implicate a range of rights.
Countries that are more developed have been better able to adapt to climate change, he continued, noting that “disproportionate impacts stem from the historical circumstances that led to inequality, including colonization that depleted the resources of indigenous peoples and created global wealth disparities, as well as existing trade systems”. The international community must design and implement policies that pave the way for a transformative ecological transition. Countries must ensure the right to development by supporting models that achieve a safe climate and meet the Sustainable Development Goals. The report provides recommendations to meet this challenge, in four key areas: international cooperation; participation and access to information; accountability and remedies; and financial obligations for assistance to address climate change.
Mr. ALFARAGI, responded by citing a United Nations resolution requesting that he participate in relevant international dialogues relating to the 2030 Agenda for Sustainable Development, including on climate change, in order to integrate the right to development into these forums. The same resolution invited him to provide advice to States and other entities on measures to achieve the goals and targets on the means of implementation of the 2030 Agenda, with a view to realizing the right to development. On a strategy for a pandemic recovery, he said he will devote his 2022 thematic report to the compliance of COVID‑19 recovery plans with the right to development.
Mr. AKRAM, on Syria’s question about vaccines provided to countries under sanctions, said there should be some kind of waiver in this regard. Noting that the Working Group is against sanctions, he said the denial of vaccines is “simply wrong” from a human rights and humanitarian perspective. In response to Brazil’s point about universal income, he said there is no international agreement on such a measure that could be applied across the board. Rather, it is confined to countries that can provide such income on their own, which does not include many developing or low-income nations. He said the pandemic has pushed the world towards the adoption of a legally binding instrument. Also, there is a draft convention on the right to development, and the Working Group has invited countries to provide their inputs.
Mr. FEYTER noted his positive experience in the expert group, working with people from different parts of the world and disciplinary backgrounds, even on a topic as divisive as the right to development. Stressing the importance of creating “a new dynamism” on this matter, he said the potential of the right to development is underused by States and civil society alike, and that the thirty-fifth anniversary of the 1986 Declaration on the Right to Development must be used to revitalize interest in this topic.
At the conceptual level, he said, the right to development should be taken up by States and relevant stakeholders, acting collectively in global and regional partnerships. “We can be hopeful”, he said, that the current crisis creates space for a renewed commitment to international cooperation on this matter. States can also act at the domestic level by targeting poverty and racial discrimination within their territories, taking into account the vulnerable populations in their societies that do not benefit from mainstream development practices.
Mr. ALFARARGI, in final remarks, stressed that climate action cannot be postponed until next year or even tomorrow. It threatens implementation of the right to development and has the potential to undo decades of development benefits, he said, noting its negative consequences on the enjoyment of the rights to health care, education, housing, culture and food. There are several steps that Governments must take urgently to deliver the intended outcome of the Paris Agreement on climate change. Despite some progress, the “sum total” of climate policies in place across the world will not keep global warming within the limits agreed on in Paris, he said, calling on States to finalize common time frames to accelerate action to safeguard nature.