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Saturday 25 October 2014

Dear Christina, Anne, Philip, Sushil,

First I would like to make a quick comment on Philip’s statement concerning the mitigated impact of the UN Human Rights Council and its mechanisms, and in a larger sense on the effectiveness of the Office of the High Commissioner for Human Rights.

Like Philip, I worked in the then Division of Human Rights and have seen it develop from Division to Centre to High Commissioner’s Office. Undoubtedly, we have witnessed standard-setting on a grand scale – the Universal Declaration and ten specialized human rights treaties – not to mention countless declarations and resolutions. We have witnessed the development of monitoring mechanisms and an effort to ensure the implementation of norms through follow-up procedures. We have seen the State-reporting procedures of the treaty bodies provide the template for the Universal Periodic Review of the Council. We have seen Special procedures established to target thematic and country-related issues. We have seen voluntary funds established, e.g. for the victims of torture.


What do these developments mean? They illustrate that there is a broad consciousness about the concept of human dignity and consensus on the necessity to protect it. The question remains how best to achieve this? Undoubtedly we have made progress and we are making progress. When I retire from my function as an Independent Expert, I will probably write a book entitled “Success-Stories in human rights”, and I can assure you that if we compare the human rights situation today with that of 1945 – we have made huge strides – take, for instance the abolition of capital punishment in an ever increasing number of States, the moratoria on executions, the commutation of sentences. Back in 1995 I participated in a follow-up mission of the Human Rights Committee to Jamaica, where we negotiated directly with the authorities and obtained assurances of commutation of sentence in all our cases. The jurisprudence of the Human Rights Committee documents successes in the fields of minority rights, indigenous rights, women’s rights, the rights of the child, freedom of expression, strengthening of the rule of law, and a continuous reduction of discrimination and arbitrariness. Overall we see National Human Rights Institutions established that advice governments, monitor and participate in the drafting and application of legislation. And there is the great promise of a vibrant civil society movement. Thus, there is reason for optimism.

Can we ever ban human rights violations? – surely not. As the Bible did not do away with sin, as the UN Charter did not do away with war, the UDHR and the human rights treaties will not by themselves do away with assaults on human dignity. But we have learned to identify obstacles and best practices and to accept human rights activism as a daily challenge and continuous work-in-progress.

Yesterday I was on Professor Andrew Strauss’ panel on geo-engineering – not exactly my specialty. Actually, I jumped in on short notice to replace a colleague. Of course, as a UN Independent expert in charge of a newly created hybrid mandate, I am kind of a jack of all trades and try my best to converge civil, political, economic, social and cultural rights, and to do so I observe the work of my colleagues in Special Procedures, I follow the jurisprudence of the treaty-bodies and of the working groups so as to arrive at a coherent synthesis. The mandate may appear daunting, but it is entirely manageable. Human Rights Council Resolution 18/6 which created the mandate of the Independent Expert on the Promotion of a Democratic and Equitable International Order was generous specifically put civil, political, economic, social and cultural rights on the menu and so directed the mandate holder to make sense of it all so as to arrive at a brave new world. This requires thinking inside – and outside the box.


A new High Commissioner for Human Rights and the OHCHR budget

In his speech before the General Assembly on 22 October the new UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, referred to the sustainable development goals of the Post-2015 Development Agenda, which constitute a focus of the activities of the OHCHR. He deplored austerity measures taken by States, which instead of reducing military expenditures have reduced social services and the budget of OHCHR.

It is my opinion, and I have written it in my reports to the Council and General Assembly, that such austerity measures constitute retrogression in the progressive implementation of the Covenant on Economic Social and Cultural Rights and entail violations of articles 2 and 5 thereof.

Special Procedures of the Human Rights Council

The Budget of OHCHR has always been inadequate. But States keep creating new mandates without making the necessary provision for increased resources. Among the recent mandates besides my own I can mention the mandate on truth, justice and reparation, the mandate on international solidarity, on freedom of peaceful assembly and association. Newer mandates are those of the Special Rapporteur on older persons, on persons with disabilities and country mandates on Côte d’Ivoire, Mali, Eritrea, Central African Republic, etc.

There are 52 Special procedures consisting of 38 thematic mandates and 14 country mandates as well as six working groups composed of five members each: the WG on people of African Descent, the WG on arbitrary detention, the WG on transnational corporations and other business enterprises, the WG on discrimination against women in law and practice, the WG on enforced or involuntary disappearances and the WG on mercenaries.

This adds up 73 unpaid experts – a smaller number than any mid-size New York law firm – who, however, need logistical support from the OHCHR. No rapporteur is entitled to a full-time assistant, but usually have a quarter or at best a half-time assistant at OHCHR. The luckier rapporteurs are attached to rich universities which can offer them not only logistical but also substantive and research support.

Critics complain that there are too many mandates and much overlapping – so, for instance, while there is a rapporteur on migration, there is also a Committee on Migrant Workers. Why a rapporteur on disabled people, when there is a Committee on Persons with Disabilities? Why a Working Group on disappearances, when there is a Committee on Disappearances? Why a WG on Discrimination against Women when there is a committee on the Elimination of Discrimination against Women?

Personally I think that we need more mandates, not less – including a Rapporteur on the right to privacy, especially after the disclosures of Edward Snowden. There are many grave dangers to the enjoyment of human rights – and one such danger is the growing surveillance – and intimidation – of private citizens, the massive violation of article 17 of the Covenant on Civil and Political Rights with the lame excuse that surveillance is necessary for national security. No and again no. What is needed is the protection of human security, which includes the right to privacy. But we seem to be moving more and more toward an Orwellian world which is no longer democratic, but very much a Big-Brother society with manipulation of public opinion and manufactured consent.

In human rights there is added value to having multiple players who look at human rights issues from different perspectives. Duplication serves the purpose of giving emphasis and visibility in a world of competition, dissimulation, deliberate ignorance and complaisance.

Far from being a critic of the Special procedures of the Human Rights Council, I find that it is a very good deal – to find 73 expert willing to devote a third of their time to investigating how to improve the human rights situation of millions of persons by making concrete, pragmatic and implementable recommendations – sometimes by “naming and shaming” but not always, because the challenge is not just to enounce, insult or embarrass, but to convince States that it is in their own interest to change paradigms. One of the noble functions of the OHCHR is to provide advisory services and technical assistance so as to teach States how best to improve their human rights records. In this context the 73 experts must be well coordinated – not so much in order to avoid duplication, but more to avoid contradictions. I for one study the reports of my colleagues and endeavour to integrate their thinking into my own reports. I do not always agree with the recommendations of all mandate holders, but I engage them in correspondence and give them my input. In any case, it is most important that the Rapporteurs work hand-in-hand with OHCHR and its constructive, non-confrontational programmes.

Climate Change

In his 22 October speech to the General Assembly High Commissioner Al Hussein focused inter alia on climate change – a huge challenge to humanity, which must be addressed resolutely. Much more resources must be devoted to this looming threat in the context of the Framework Convention on Climate Change and the Green Climate Fund established by the United Nations. In paragraph 71 of my report to the HR Council (A/HRC/27/51) I specifically recommend that States downsize the military and reorient resources toward the creation of jobs in the field of climate change and protecting the environment.

We must not underestimate the danger to local, regional and international peace posed by the tensions resulting from climate change, desertification, flooding, relocation of populations, migration movements, etc. Yesterday a panel moderated by Professor Andrew Strauss explored possible answers to the challenge including though geo-engineering, which, of course raises not only legal issues, but also ethical issues and issues of transparency, accountability, democratic governance and public participation in decision-making.

In my opinion 3 crucial issues should be mainstreamed into the work of all agencies and departments of the United Nations: Human Rights, Peace and Climate Change. These 3 clusters should also be mainstreamed into the Universal Periodic Review procedure. These are truly global challenges that demand global debate, democratic participation and global solutions.

Human Rights Treaty-Bodies

As you may know, my background is in civil and political rights, having been secretary of the HR Committee and Chief of the Petitions Section at OHCHR. The treaty bodies have created important jurisprudence, particularly the Human Rights Committee under the Optional Protocol Procedure. But the number of cases keeps growing, as with the European Court of Human Rights and the Inter-American Commission on Human Rights. Seven other Committees also have individual complaints procedures. Most recently the Optional Protocol to the Covenant on Economic Social and Cultural Rights and the Third Optional Protocol to the Convention on the Rights of the Child entered into force, and the first individual complaints have been arriving. A significant increase in petitions is expected as the procedures become more generally known.

The existence of these procedures generates hope in individuals, who turn to the UN expecting that their grievances will be taken seriously. This entails appropriate funding and staffing. The OHCHR has emphasized that the current budged for the 2014-15 biennium is clearly insufficient at 173.5 million US dollars. The UHCHR is stretched beyond the limit – and this I know both as a former staff member of OHCHR and as an Independent Expert.   We owe it to the victims of violations of human rights to listen to them and to deal with their petitions in an expeditious manner.


Besides the individual complaints procedures most Committees also envisage the possibility of inter-State complaint procedures. Thus far no inter-State complaint has ever been filed or examined. But if and when such inter-State complaints are filed, that will necessitate additional staff and additional funding.

Generic obstacles to progress in the implementation of human rights

Human dignity is the source of all human rights. But neither human dignity nor human rights are self-executing. Invoking them does not make it happen. Alas, lip service remains the rule, not the exception.

Indeed, Realpolitik in the 21st century has learned how to instrumentalize human rights rhetoric to pursue traditional geopolitical and hegemonial agendas — hitherto with remarkable success, since broad sectors of civil society actually fall for the propaganda disseminated by a well orchestrated corporate media and supported by an accommodating “human rights industry”, too often compliant and complicit with the business enterprises that dish out donations and engender long-term dependencies. Just watch them deploy their multiple campaigns to join human rights bandwagons, fashions, “the flavour of the month”, while exercising self-censorship on weightier human rights problems such as abject poverty, lack of clean water and minimal health care!

This industry has a convenient fig-leaf function and serves to advance those human rights that are business-friendly and likely to generate profits — notwithstanding the misery of millions of human beings who lack everything, those “unsung victims” of the irrelevant “third world”. This widespread approach builds on the “trickle-down” fantasy, according to which if the rich become richer, then some excess wealth eventually will make its way down to the poor. Alas, this hypothesis is but a rip-off system that only aggravates the situation and negates any and all hope of human solidarity. But there is enough pious opium for the masses, pathos for adolescents — and panem et circensis for the rest of us.

Another major obstacle to the credibility of the human rights system is what some States call “selectivity” and what I would call “human rights à la carte” or “international law à la carte.” Nothing discredits the system more than the non-uniform application of human rights norms and the instrumentalization of human rights as weapons against other States and societies.

Yet another concern is the harassment and mobbing that OHCHR staff members and UN Rapporteurs often have to endure – being targets of ad hominem attacks from Governments and even from non-governmental organizations and so-called gongos. High Commissioner Al Hussein has deplored the widespread phenomenon of: “member States and their proxies directing personal attacks against special procedures mandate holders …This is not only unbecoming of the dignity of Governments; it also generates a clear impression of guilt.”

The way forward

Lawyers, historians, sociologists, economists delight in formulating diagnoses about the root causes of human rights violations and about the multiple problems of implementation. I dare offer some of my own recommendations:

The stalemate is in part attributable to intellectual laziness, a rather widespread form of inertia. We see problems and seem incapable to solve them. Hence, I would suggest a change of mind-set, replacing the obsolete paradigm of first, second and third generation rights – with its obvious predisposition to prioritize in favour of civil and political rights — by a functional paradigm that would analyze rights in the light of their function within a coherent system — not of competing rights and aspirations but of interrelated rights which should be applied in their interdependence and understood in the context of a coordinated strategy to serve the ultimate goal of achieving human dignity in all its manifestations. Four categories would replace the previous three. First we would recognize enabling rights, among which I would list the rights to food, water, shelter, homeland – but also the right to peace, since one cannot enjoy human rights unless there is an environment conducive to the exercise of those rights. Secondly I would propose a category of inherent or immanent rights, such as the right to equality and the right to non-arbitrariness; indeed, every right necessarily contains in itself the element of equality, the self-evident requirement that it be applied equally and equitably, that there be uniformity and predictability (what the Germans call Rechtssicherheit).  Third I would propose a category of procedural or instrumental rights, such as the rights to due process, access to information, freedom of expression and peaceful assembly – rights that we need to achieve our potential, to complete our personalities, to engage in the pursuit of happiness. Finally I would postulate the category of end rights or outcome rights, that is, the concrete exercise of human dignity, that condition of life that allows each human being to be himself or herself. In other words, the ultimate right is the right to identity, the right to be ourselves, the right to think by ourselves and express our humanity without indoctrination, without intimidation, without pressures of political correctness, without having to sell ourselves, without having to engage in self-censorship, also the right to privacy. Ultimately this right to identity is the essence of a healthy democracy. And, as I wrote in my report to the General Assembly A/67/272, democracy is an expression of self-determination, which in turn is an expression of democracy in its individual and collective dimensions. We should strive for a domestic and international order in which democracy can be exercised by all, in respect and solidarity with others.