Special Rapporteurs Tell Third Committee Checks, Balances Sorely Needed to Ensure Counter-Terrorism Laws, Sanctions Comply with Human Rights Norms
Amid the widespread use of sanctions and counter-terrorism legislation, more transparency and human rights impact assessments were needed when imposing unilateral coercive measures, the Third Committee (Social, Humanitarian and Cultural) heard today, continuing its consideration of the promotion and protection of human rights.
The human rights impact of coercive measures imposed on developing States must be better assessed and prevented, said Idriss Jazairy, addressing the Committee for the first time since his nomination as Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights. While one third of the international population was living in a country under unilateral coercive measures, the absence of standardized global data on their use had stymied attempts to gain an overview of their human rights impact.
While noting international divergence on the issue, he insisted that unilateral coercive measures that inflicted undue suffering on the population of a targeted State were clearly illegal under international law. Innocent people should not be punished collectively for what source countries considered to be wrongful acts by their leaders.
Further, he said more transparency in unilateral coercive measures and more consultations to reach international agreements on that issue were needed, with the ultimate objective of reducing the suffering of the most vulnerable segments of the population of targeted countries.
In a similar vein, Ben Emmerson, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, shared his concerns about the growing trend worldwide of misusing counter-terrorism measures to stifle legitimate opposition and to choke public interest and human rights organizations. Such an “ideological pandemic” had become a first-rank priority for United Nations human rights mechanisms.
Non-governmental organizations (NGOs) had to be recognized as partners in counter-terrorism, he said, underlining that they had unique abilities to reach out to local communities, give voice to the disaffected and marginalized and deliver humanitarian relief in conflict areas.
Extraterritorial material support laws had prompted many donors to include due diligence clauses in funding agreements that were often hard to implement, he continued. The “myopic” decision of the United States Supreme Court in the Holder case made it an offence to provide training in humanitarian law to a non-State armed group. In other words, he pointed out, the decision made it a crime to directly advocate that a terrorist group comply with the laws of war.
Also addressing the Committee today were the Independent Expert on the promotion of a democratic and equitable international order, the Independent Expert on the effects of foreign debt and other related financial obligations of States on the full enjoyment of all human rights, the Special Rapporteur in the field of cultural rights and the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence.
The Third Committee will reconvene at 10 a.m., on Tuesday, 27 October, to continue its discussion on the protection and promotion of human rights.
Background
The Third Committee (Social, Humanitarian and Cultural) met today to continue its debate on the promotion and protection of human rights. For background, see Press Release GA/SHC/4139.
Interactive Dialogues
ALFRED-MAURICE DE ZAYAS, Independent Expert on the promotion of a democratic and equitable international order, said the global investment regime had too often impeded development and hindered States in the fulfilment of their human rights treaty obligations. His latest report had focused on the impacts of bilateral investment treaties and multilateral trade agreements on the international order. It surveyed the negative effects of the investor-State dispute settlement mechanisms that accompanied most of those agreements. There was no justification for the existence of a privatized system of dispute settlement that was not transparent or accountable and often resulted in arbitrary awards. The report also provided an analysis of legal issues concerning the investor-State dispute settlement and incompatibilities with the Purposes and Principles of the United Nations Charter and UN human rights treaties. Accordingly, he said, the investor-State dispute settlement was not needed.
Over the past 25 years, the investor-State dispute settlement process had undermined fundamental principles of the United Nations, State sovereignty, democracy and the rule of law, he continued. Far from contributing to human rights and development, he said, the process had resulted in growing inequality among States and within them. To that end, he stressed that the investor-State dispute settlement could not be reformed and must be abolished. Furthermore, he urged the Committee not to underestimate the adverse human rights effects of free trade and investment agreements on human rights, development and democratic governance. A world conference to mainstream human rights into the international investment regime and to abolish the investor-State dispute settlement was necessary to make trade and investment work for human rights and not against them.
When the floor opened, delegates inquired about the Independent Expert’s collaboration with the Working Group on Business and Human Rights, his cooperation of transnational corporations and progress and challenges towards the adoption of an international binding instrument on business and human rights.
Responding, Mr. DE ZAYAS said that in light of the impact of transnational corporations on the international order and unacceptable interferences with States sovereignty, he had conducted active consultations with the Working Group on Business and Human Rights. Human rights had to take precedence over all international treaties, he said, including trade law. Arbitration tribunals and dispute settlement mechanisms had often abused international law, he said, and had run counter to morals. It was the duty of the International Court of Justice to take a clear position on that issue.
Expressing support to the United Nations Guiding Principles on Business and Human Rights, he noted the importance of businesses and trade for the development of sustainable societies. He said he was, however, outraged at the power of certain transnational corporations to dictate policies to States and that had a capital higher than most developing States’ gross domestic product. The rule of law was being attacked through the creation of a system that was above domestic courts and law. He expressed his support for the adoption of an international binding instrument on business and human rights, which would be better than the illusion of self-regulation that was currently in place, and regretted that some States had refused to engage in related negotiations.
Participating in the interactive dialogue were representatives of Morocco, Venezuela, Cuba, Algeria and the Russian Federation.
JUAN PABLO BOHOSLAVSKY, Independent Expert on the effects of foreign debt and other related financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights, presented his report to the Committee. Recalling the adoption of General Assembly resolution 69/319 regarding sovereign debt restructuring processes, he said the text had marked a positive step towards clarifying which rules and principles of international law applied to sovereign debt issues.
His report had also focused on the scope of the principle of pacta sunt servanda – the principle that agreements must be kept – in the context of foreign debt obligations vis-à-vis international law, including human rights law. It argued for a more nuanced view of that principle when considering the connections between debt and human rights. Public and private lenders had certain obligations and responsibilities under international human rights law. “Not only do debt contracts have to be adhered to, but, equally, human rights treaties need to be respected,” he said, saying that that had included the need for due diligence to respect human rights. Sustainable debt portfolios and debt restricting agreements should include growth and repayment capacity, but they should also consider their impact on the economic, social and cultural rights of the sovereign debtor’s population.
Mr. BOHOSLAVSKY informed the Committee that his upcoming thematic reports to the Human Rights Council, to be presented in March 2016, would examine the link between inequality, financial crises and human rights, and illicit financial flows, human rights and the post-2015 development agenda. Reviewing his official visit to China in June 2015, he said he assessed how its international lending had contributed to the realization of human rights in “borrowing” developing countries, and stressed that a human rights focus would upgrade China’s lending while avoiding negative effects on social, environmental and human rights. All Member States were urged to implement the General Assembly Principles on Sovereign Debt Restructuring Processes, which mostly reflected general principles of international law and international customary laws and were, therefore, legally binding.
In the ensuing dialogue, delegates raised questions and concerns about sovereign debt relief, illicit funds and sustainable reforms to financial crisis.
Responding, Mr. BOHOSLASVKY said he had monitored and reported on the financial situations of countries. In particular, he had observed debt-relief initiatives in Addis Ababa, where the International Conference on Financing for Development had taken place. On illicit funds, he said that the international community had taken a step forward, acknowledging it as a problem under the Sustainable Development Goals.
Participating in the interactive dialogue were representatives of Sudan, Argentina, Morocco and Venezuela.
IDRISS JAZAIRY, Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, recalled the necessity to distinguish between “sanctions” legitimately adopted by the Security Council and unilateral coercive measures, which were applied by individual States or groups outside of the United Nations framework. He regretted that some States had expressed their opposition to his mandate, arguing that the Human Rights Council was not the right forum to address the issue of unilateral coercive measures. That approach, he said, would leave an unjustified protection gap for civilians whose human rights had been violated by unilateral coercive measures imposed by another State. Human rights obligations applied both domestically and for States’ actions outside their jurisdiction.
Recalling the debate on whether all or some forms of unilateral coercive measures countered international law and the Charter of the United Nations, he referred to divergent views concerning how to respond to the issue and provide reparation to victims. He noted, however, that the absence of standardized global data on unilateral coercive measures had stymied attempts to gain an overview of the situation and gauge the human rights impact of those measures. The mandate had tried to avoid the moral and political aspect of unilateral coercive measures and had focused instead on their human rights impact, including rights to life, self-determination and development. It also gave particular attention to the rights to education and health and to fair trial guarantees in the context of “persons of concern” lists.
Innocent people should not be punished collectively for what source countries considered as wrongful acts by their leaders, he continued. If unilateral coercive measures inflicted undue sufferings on the population of a targeted State, they were then clearly illegal and their source countries should be called into account. He pointed out that his report had called for more transparency in unilateral coercive measures and more consultations to reach international agreements on that issue, with the ultimate objective of reducing the suffering of the most vulnerable segments of the population of targeted countries.
Following the presentation, delegates raised questions and concerns about measures imposed on States and the role of States and international organizations with regard to the human rights situation in Sudan. They posed questions on the effects of unilateral coercive measures and on consultations with States. Speakers also asked about recommendations contained in the report, the effective execution of the Rapporteur’s mandate and cooperation with stakeholders.
Mr. JAZAIRY said that one third of the international population was living in a country under unilateral coercive measures, which was a major challenge. Unilateral coercive measures also were a result of the international community’s failure at resolving disagreements among States.
The international community was divided on the definition and legality of unilateral coercive measures. There was an ambiguity with regards to the question about whether all unilateral coercive measures were contrary to international law, or whether some were legitimate. Developed countries, such as European States, the United States, Australia and Canada, applied unilateral coercive measures without standardization or common rules for redress. Some type of law was necessary to rule those measures, he said.
Responding to the Iraq delegate’s question on unilateral coercive measures imposed before a regime change, Mr. JAZAIRY said that the continuation of sanctions after the fall of the Saddam Hussein regime remained incoherent. Restricted measures, once lifted, had not led to an improvement of the economic situation straight away, as businesses continued to consider investments risky.
Turning to Cuba, he said the situation of unilateral coercive measures against it had failed to reach their goal. Imposing preventive measures for more than 50 years against a country had not made much sense, he said.
With regards to humanitarian access, he referred to the fact that the 85,000 people diagnosed with cancer every year in Iran had been unable to access treatment partly due to embargoes on medical procurement. That example highlighted the negative impact of unilateral coercive measures, he said, underlining the important role of the United Nations to address the needs of populations.
The impact of unilateral coercive measures was not entirely a North-South issue, he said, as some northern countries had been faced by such measures. The international community should elaborate parameters to measure and assess the real human rights impact of unilateral coercive measures. The establishment of a working group with experts from United Nations agencies working in the field could be beneficial in that regard, he said.
Participating in the interactive dialogue were representatives of Iran (for the Non-Aligned Movement), Cuba, Sudan, Algeria, Belarus, Russian Federation, Zimbabwe, Syria, Morocco and Venezuela.
FARIDA SHAHEED, Special Rapporteur in the field of cultural rights, presented her thematic report, which focused on intellectual property regimes and the enjoyment of the right to science and culture. The right to protection of moral and material interests, she said, could not be used to defend patent laws that inadequately respected the rights to participate in cultural life and to enjoy the benefits of scientific progress. Rights to science and culture, she continued, should be understood as rights to have access to use and further develop technologies in self-determined and empowering ways. The human rights perspective demanded that patents did not interfere with the dignity and well-being of individuals. Where patent rights and human rights were in conflict, human rights must prevail, she underlined.
Identified tensions existed between patent rights and the right to science and culture. Such tension included the impact of patent rights and policies on ensuring access to essential technologies and the direction of scientific research. A worrisome trend, she stressed, was the expanding roles of patent-seeking in scientific research at universities and public research institutions. To protect the right of participation in culture, science and technology, it was important to effectively use various exclusions, exceptions and flexibilities on patents. To that end, she noted that States had a positive obligation to provide a robust and flexible system based on domestic circumstances. In conclusion, she said, it was crucial that international legal regimes on patents continued to leave room for countries to adopt and implement policies that abided by their human rights obligations.
Several delegates then asked questions on such topics as scientific research, national patent systems, the 2030 Agenda for Sustainable Development, cultural diversity and the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities.
Responding, she said the Marrakesh Treaty was “a very good step in the right direction” and its principles could be expanded to cover other forms of disabilities. The Global Commission on HIV and the Law had recommended that the United Nations created a neutral, high-level body that would review and assess a new intellectual property regime that was consistent with international human rights laws while protecting the rights of investors.
Food was a crucial area, she continued, emphasizing that patenting currently protected commercial seeds, but not farmers. That would be an excellent area to consider with regard to sustainable development. Tools to ensure that the fruits of publicly funded research did not end up becoming the property of individuals had been developed at Stanford University. Climate change was implicated in patenting and it was hoped that States would take that factor into consideration going forward. The private sector was never at the same table with regard to the debate over patent rights. Interested States were urged to bring civil society, academia and the private sector together so that issues could be laid out and a way forward established.
Participating in the question and answer session were representatives of Pakistan, Russian Federation, Brazil, Cuba, Morocco and Mexico, as well as the European Union.
BEN EMMERSON, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, said measures were being abused worldwide at a growing pace, stifling legitimate opposition and choking public interest and human rights organizations. Such an “ideological pandemic” had become a first-rank priority for United Nations human rights mechanisms.
In the past three years, more than 60 States had proposed or passed laws that had restricted the freedom of assembly or prohibited the foreign funding and activities of civil society organizations. There was no single cause behind the global crackdown on civil society, but there was no doubt that the “talismanic power of counter-terrorism” had been important. Responsibility for putting matters right had to be shared by the General Assembly, Security Council and all relevant United Nations entities, he said, noting that it was not only a concern for Geneva.
Continuing, he said NGOs had to be recognized as partners in counter-terrorism. They had unique abilities to reach out to local communities, give voice to the disaffected and marginalized, and deliver humanitarian relief in conflict areas.
International and national measures to address financial and material support for terrorism had had a chilling impact on public interest groups, and Security Council resolutions had contributed to that. In the wake of a key recommendation from the Group of Seven’s Financial Action Task Force, there had been increased surveillance and state regulation of NGOs despite evidence, including World Bank research, that only “a tiny fraction” of such organizations had been affected by criminal misuse. States needed to “back off” and enable lawful public interest organizations to get on with their vitally important work.
Extraterritorial material support laws had prompted many donors to include due diligence clauses in funding agreements that were often hard to implement, he said. The “myopic” decision of the United States Supreme Court in the Holder case made it an offence, punishable by up to 15 years in prison, to provide training in humanitarian law to a non-State armed group. In other words, it was a crime to directly advocate that a terrorist group comply with the laws of war. Civil society was essential and the non-governmental sector had to be allowed to play its role in coordinated efforts to counter terrorism.
Following the presentation, delegates raised questions and concerns about the victims of terrorist attacks, transparency of measures to combat terrorism and the role of NGOs in addressing extremism and terrorist acts. They also inquired about the impact of poverty and social exclusion on terrorism, anti-terrorism measures and the duplication of his mandate. Questions were also raised about the transparency of civil society activities and the protection of marginalized persons under the international humanitarian law.
Mr. EMMERSON, thanking the questions and comments raised by the delegations, said that the issue of “duplication” had been raised in different platforms, yet the answer was no. Turning to the measures to combat terrorism, he underlined that if national mechanisms had failed, regional tribunals could deal with extremism and terrorist acts. The United Nations mechanisms were also available to provide necessary support.
Many experts, based on the empirical data, believed that poverty and social exclusion were the root causes for terrorism. Addressing such problems would reduce the risk of extremism, he underlined. Turning to the questions on NGOs, he stressed that they played a pivotal role in providing humanitarian assistance all around the world. However, such organizations continued to face challenges in operating on the ground. States, to that end, needed to provide the necessary support.
Participating in the interactive dialogue were representatives of Mexico, United Kingdom, United States, Morocco, Qatar, Russian Federation, Switzerland, Brazil, Iraq, Nigeria, Syria and Pakistan, as well as the European Union.
PABLO DE GREIFF, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, said his report had focused on the preventive potential of measures associated with the reform of the security sector. Even though institutional reform was an important segment of a non-recurrence policy, it was only one part. It was, therefore, important to situate vetting within the broader framework of security sector reform. Vetting the members of security institutions could make significant contributions to transitional justice processes. It could offer recognition of victims, foster civic trust, contribute to social integration or reconciliation and strengthen the rule of law, he underlined. Vetting processes, however, faced challenges, such as strong political opposition and resistance. To that end, civil society organizations could play an important role in collecting and analysing background information on officers that could be subject to screening.
Turning to other preventive measures in the security sector, he said that national constitutions should define the role and functions of the police and the military. Furthermore, measures needed be taken to prevent the continued involvement of non-State armed groups in human rights violations. To that end, he urged States to strengthen civilian control over the security sector, in particular the military, by establishing a functional civilian defence ministry. He also encouraged the rationalization to move those institutions more in line with publically scrutinized risk assessments.
Delegates then took the floor with questions about education and human rights training, post-conflict vetting systems, the role of civil society, reparations for gender-related human rights violations and genocide, and protection of civil society in transitional justice processes.
Mr. GREIFF explained that the “intervention” in his report was a reference to initiatives and not the conduct of foreign States. The thrust of the report, and that which he had presented three weeks ago to the Human Rights Council, was to emphasize the importance of civil society in the design and implementation of programmes to guarantee non-recurrence.
Much work had been done with regard to preventing human rights violations, but rarely under the label of guaranteed non-recurrence. Within the United Nations system, information on that topic was widely dispersed and therefore the report aimed at providing a framework for conversation among people working on the problem from different dimensions.
There were several different dimensions to consider besides institutional reform. One example was training civil society in security-sector-related areas - while civil society had a high level of competence in several areas, there was little experience with regard to security-related issues. The participation of civil society was an investment worth making. In instances of massive human rights violations, more attention was being given to redress than to prevention, and therefore it would be wiser to attempt to prevent a recurrence than simply to undertake repairs.
Participating in the question and answer session were representatives of Morocco, Colombia, United States, Argentina, Brazil, Armenia, Switzerland, Nigeria and Norway, as well as the European Union.