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CREATING A WORKABLE WORLD, October 2015 —

Some thoughts by Alfred de Zayas, UN Independent Expert on the Promotion of a Democratic and Equitable International Order

A workable world already has its Constitution – the United Nations Charter – and its Constitutional Court, the International Court of Justice in The Hague. The Purposes and Principles of this world order are Peace, Human Rights and Development.

The UN Security Council, however, does not always act in conformity with these Purposes and Principles as stipulated in article 24 of the Charter. Moreover, it no longer represents the realities of the world in 2015, since the demographic, economic and political landscape has considerable evolved since 1945. Reform is urgently needed, but the P5 have no interest in losing their privileges. Hope has been placed in the General Assembly, which, alas, does not always live up to expectations, because there is a gaping disconnect between governments and the populations they are supposed to represent. Hence, the creation of a World Parliamentary Assembly of directly elected representatives, a UN Parliamentary Assembly with consultative functions, a World Court for the Environment and a World Court of Human Rights should be explored. These new institutions would strengthen national and international democracy and contribute to the creation of a peaceful, just and workable world.

Diagnoses are galore why the world is in flames, why human security is constantly being threatened, why social injustice, extreme poverty and famine prevail. Pragmatic, implementable recommendations are galore. Why is it, that governments do not take their obligations seriously and prefer to apply international law à la carte, in contravention of the general principle of good faith and the obligation to implement treaty obligations, including human rights obligations, pacta sunt servanda.

The obstacles to the non-selective implementation of international law are many, including a history of asymmetric relationships among States, the race for natural resources, powerful vested interests of bankers, financial institutions, investors, transnational corporations and the military-industrial complex, about which I have written in prior reports to the UN Human Rights Council and General Assembly (http://www.ohchr.org/EN/Issues/IntOrder/Pages/IEInternationalorderIndex.aspx). The gulf between the rich and the poor continues to grow – both nationally and internationally. Democracy is more and more degraded to an empty promise, because Parliaments often do not represent their constituents, and supra-national arrangements like the Lisbon Treaty and so-called free trade and investment agreements with their arbitrary investor-State-dispute settlement arbitrations trump the sovereignty of States and the rule of law. It is worth remembering that contracts or treaties that are contra bonos mores, in contravention of international ordre public, are invalid pursuant to article 53 of the Vienna Convention on the Law of Treaties, and that courts and tribunals must not give effect to arrangements entailing an abuse of rights. Moreover, in case of conflict between any international agreement and the UN Charter, it is the Charter that prevails, as stipulated in article 103 of the Charter. This should be confirmed in an advisory opinion of the International Court of Justice.

Already in para 68 to my report to the GA in 2013 I proposed a fundamental change of paradigm, introducing a functional approach to human rights, whereby the aim of the entire human rights edifice is human dignity expressed in the exercise of one’s identity and culture, one’s right to privacy — the ontological right to be ourselves. Hence, we must abandon the artificial and self-serving division of rights into those of the first, second and third generations.

Allow me to conclude with paragraph 68 of my 2013 report A/68/284:

“68. It may be permitted to propose a shift in thinking models that could advance the common agenda by discarding the obsolete division of rights into artificial categories of first, second and third generation rights — with their skewed value judgements. Human rights should henceforth be redefined in functional terms, recognizing human dignity as the source of all rights, whether individual or collective. This functional paradigm reveals the interrelatedness of human rights as the convergence of enabling rights (such as the rights to peace, food, health, homeland and environment), inherent rights (such as equality and non-discrimination), procedural rights (such as access to information, freedom of expression and due process) and what could be called outcome rights, that is, the practical realization of human dignity in the form of the right to privacy, to our identity, to our personality, to achieve our potential and to be just who we are, free to live our transcendence, practice our faith, enjoy our own culture, preferences and opinions, without intimidation, surveillance or pressures to behave in a prescribed “politically correct” mode or endure self-censorship. The absence of this outcome right to identity and self-respect is reflected in much of the strife we see in the world today.

I wish your conference on the creation of a workable world substantive success and much media echo.

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