NGLS Roundup, no. 61, September 2000 HUMAN RIGHTS SUB-COMMISSION HOLDS 2000 ANNUAL SESSION INTRODUCTION The United Nations Sub-Commission on the Promotion and Protection of Human Rights held its 52nd session in Geneva from 31 July-18 August 2000. The Sub-Commission is composed of 26 independent experts elected by the United Nations Commission on Human Rights. A major item on this year's agenda of the Sub-Commission was the impact of globalization on the full enjoyment of human rights, including the role and human rights impact of transnational corporations, and multilateral trade and financial institutions. In this regard, the Sub-Commission unanimously passed a resolution warning that there are "apparent conflicts" between the agreement on trade-related aspects of intellectual property rights (TRIPs) of the World Trade Organization (WTO) and provisions under international human rights law. Among other matters, Sub-Commission members discussed racial discrimination, the rights of women and children, and of minorities. Many observers also noted the unequivocally critical stance taken by the Sub-Commission on the adverse human rights consequences of economic sanctions, particularly on the population of Iraq. This year's session was also concerned with implementing recommendations of the Commission on Human Rights, which had decided in April on a number of reforms to enhance the effectiveness of its mechanisms, including the working methods of the Sub-Commission. The Chair of the Commission, Shambu Ram Simkhada (Nepal), told it on 31 July that this included a decision that the Sub-Commission should continue to be allowed to discuss urgent matters involving serious human rights violations in any country. However it should not adopt country-specific resolutions and should refrain from negotiating thematic resolutions that contain references to specific countries (see box). This led to intense discussions among Sub-Commission members on how strictly the recommendations had to be interpreted, notably before adopting a resolution concerning the situation of women and girls under control of the Taliban armed groups in Afghanistan. A number of NGOs also expressed concern that some Member States were seeking to weaken the scope and capacities of the Sub-Commission, in view of its willingness to raise what might be considered highly controversial questions. NGOs such as Habitat International Coalition have called for much greater international NGO mobilization and support to maintain and enhance the Sub-Commission's mandate when debate on the future of this subsidiary body is resumed at the next session of the Commission on Human Rights in March-April 2001. GLOBALIZATION AND HUMAN RIGHTS In its decision 2000/102 of April this year, the Commission on Human Rights approved the appointment of two Sub-Commission members, Joseph Oloka-Onyango (Uganda) and Deepika Udagama (Sri Lanka), as Special Rapporteurs to undertake a study on the issue of globalization and its impact on the full enjoyment of all human rights. The Special Rapporteurs submitted a preliminary report (E/CN.4/Sub.2/2000/13) to this year's session of the Sub-Commission, which argues that current rules and policies developed through multilateral trade and financial institutions promote a form of economic globalization that tends to reinforce existing inequalities within and between countries. The authors argue that institutions such as the International Monetary Fund (IMF) and the WTO must cease to treat human rights issues as peripheral to the formulation of policies and instruments of international trade and finance. They argue that human rights principles should be integrated into the rule-making processes from the outset, and insist that "the primacy of human rights law over all other regimes of international law is a basic and fundamental principle that should not be departed from." This implies challenging "the dominant neoliberal economic framework of analysis," and in particular "the measures of austerity and punitive conditionality that have been the modus operandi of the existing system." The authors argue that "the assumptions on which the rules of WTO are based are grossly unfair and even prejudiced. Those rules also reflect an agenda that serves only to promote dominant corporatist interests that already monopolize the arena of international trade. The rules assume an equality of bargaining power between all the countries that engage in trade. They are also designed on the basis of a premise that ignores the fact that the greater percentage of global trade is controlled by powerful multinational enterprises. Within such a context, the notion of free trade on which the rules are constructed is a fallacy." The report concludes by recommending the formulation of guidelines that would outline the basic human rights obligations of the main actors of globalization. These guidelines would be applied not only to the various regimes of international trade, investment and finance, but also to the institutional arrangements within which these regimes are housed. The authors suggest such guidelines would include a framework through which these actors should conduct human rights impact assessments of their activities before they implement them. During the Sub-Commission session a representative of the IMF said that the Fund's policies and its operations were under constant scrutiny and was accountable to its member countries through the Executive Board, ministerial oversight committee and Board of Governors. He noted that the Fund's new Poverty Reduction and Growth Facility was the principal instrument for providing highly-concessional financial assistance to its poorer members. He stressed that the Facility's assistance would proceed hand-in-hand with the enhanced Heavily Indebted Poor Countries (HIPC) Initiative, which he said would build upon wide-ranging comments from civil society and the international community to provide faster, deeper and broader debt relief. Central to the initiative, he added, were countries' continued efforts toward macro-economic adjustment and structural and social policy reform. In a letter addressed to the UN High Commissioner for Human Rights, WTO Deputy Director-General Miguel Rodriguez Mendoza expressed his organization's deep concern with the Special Rapporteurs' preliminary report. Mr. Mendoza noted that WTO rules were negotiated and agreed by consensus by all WTO members including developing countries, which make up two-thirds of the WTO membership. He added that "it is difficult to understand why the more than 130 current WTO members, as well as the some 30 developing countries and countries in transition that are actively in the process of acceding to the WTO, would be willing to be bound by unfair' rules." Mr. Mendoza also disputed the report's claim about the WTO's lack of involvement in promoting human rights. He said the goals of the WTO and human rights conventions are similar "and should not be presumed as somehow contradictory." HUMAN RIGHTS AND TRIPS On 17 August 2000, the Sub-Commission unanimously adopted Resolution 2000/7 on "intellectual property rights and human rights." This resolution emphasizes that "actual or potential conflicts exist" between implementation of the World Trade Organization's TRIPs Agreement and the realization of economic, social and cultural rights. The resolution recognizes "the right to protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author" as referred to in Article 27.2 of the Universal Declaration of Human Rights and Article 15.1 (c) of the International Covenant on Economic, Social and Cultural Rights. However, it insists that "since the implementation of the TRIPs Agreement does not adequately reflect the fundamental nature and indivisibility of all human rights, including the right of everyone to enjoy the benefits of scientific progress and its applications, the right to health, the right to food, and the right to self-determination, there are apparent conflicts between the intellectual property rights regime embodied in the TRIPs Agreement, on the one hand, and international human rights law on the other." On this basis, the Sub-Commission requested "the World Trade Organization, in general, and the Council on TRIPs during its ongoing review of the TRIPs Agreement, in particular, to take fully into account the existing State obligations under international human rights instruments." "This is a pathbreaking resolution in more ways than one," said Miloon Kothari of the International NGO Committee on Human Rights in Trade and Investment (INCHRITI), an alliance of eight human rights coalitions that advocated action on TRIPs by the Sub-Commission. "First and foremost this timely resolution signifies the resolve of the UN human rights programme to monitor the work of the WTO....This historic resolution has firmly affirmed the primacy of human rights and environmental obligations over the commercial and profit-driven motives upon which agreements such as TRIPs are based." In a letter on 7 September 2000 to the Commissioner for Trade of the European Commission, a group of European NGOs urged that the European Union, as part of the current TRIPs reviews, "clarifies that the WTO rules including the TRIPs Agreement must be consistent with human rights law, in particular the UN Covenant on Economic, Social and Cultural Rights, and acknowledges the points made by the UN Sub-Commission on the Promotion and Protection of Human Rights on 17 August." The group of NGOs includes Oxfam (Great Britain), ActionAid, Cooperation Internationale pour le Developpement et la Solidarite (CIDSE) and the Centre for International Environmental Law (CIEL). IMPACT OF ECONOMIC SANCTIONS ON HUMAN RIGHTS The Sub-Commission also reviewed a working paper prepared by former Sub-Commission member Marc Bossuyt on The adverse consequences of economic sanctions on the enjoyment of human rights (E/CN.4/2000/33). The paper argues that "more and more evidence testifies to the inefficacy of comprehensive economic sanctions as a coercive tool." Using the sanctions imposed on Iraq since 1990 by the UN Security Council as a case in point, Mr. Bossuyt argues that "in regimes where political decision making is not democratic, there is simply no pathway through which civilian pressure can bring about change in the government. Under sanctions, the middle class is eliminated, the poor get poorer, and the rich get richer as they take control of smuggling and the black market. The Government and elite can actually benefit economically from sanctions, owing to this monopoly on illegal trade." Mr. Bossuyt also noted that this point is recognized in the UN Secretary-General's Millennium Report. The paper says the sanctions on Iraq have produced "a humanitarian disaster comparable to the worst catastrophes of the past decades." The estimated deaths directly attributable to sanctions range from half a million to a million and a half, the majority children. It notes that in 1999 the United Nations Children's Fund (UNICEF) concluded that in the heavily-populated southern and central parts of the country, children under five were dying at more than twice the rate they were ten years ago. The paper goes on to argue that the health crisis in Iraq is intertwined with the general social and economic crisis that the sanctions have brought about. It says that "the economic, social and cultural rights of the Iraqi people are being swept aside, as are their rights to development and to education. For example, the purchasing power of an Iraqi salary by the mid-1990s was about 5 per cent of its value prior to 1990." The paper states that under Article 24 of the UN Charter, the Security Council is required to "act in accordance with the Purposes and Principles of the United Nations." Thus, it says, "no act of the Security Council is exempt from scrutiny as to whether or not that act is in conformity with the Purposes and Principles of the United Nations." It also cites Article 1.1 of the Charter, which requires that sanctions or other measures undertaken to maintain international peace and security must be "effective" and be "in conformity with the principles of justice and international law." On this basis, Mr. Bossuyt says, sanctions must be constantly reviewed to ascertain whether or not they are effective in maintaining peace and security. "Ineffective or unjust sanctions," he says, "or those that violate other norms of international law may not be imposed, or must be lifted if they have been imposed." He also cites Article II of the Convention on the Prevention and Punishment of the Crime of Genocide, in which the definition of genocide includes acts committed with "intent to destroy" in whole or in part a national group, such as "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part." The paper says that the sanctions regime against Iraq is "unequivocally illegal" under existing international humanitarian law and human rights law. "Once clear evidence was available that thousands of civilians were dying," he says, "and that hundreds of thousands would die in the future as the Security Council continued the sanctions, the deaths were no longer an unintended side effect--the Security Council was responsible for all known consequences of its actions. The sanctioning bodies cannot be absolved from having the intent to destroy' the Iraqi people." In exercising observer governments' right of reply, George Moose, United States Ambassador to the United Nations in Geneva, said that "we are greatly disturbed by the working paper prepared by Mr. Marc Bossuyt on the effects of sanctions, and in particular his case study of UN sanctions against Iraq. Any observer who understands the facts can only find this section of the report to be incorrect, biased and inflammatory." Mr. Moose said that the sanctions regime, even from the beginning, never limited or prohibited Iraq from importing humanitarian goods such as food and medicine. "In fact," he continued, "with others in the international community, the United States has worked hard to ensure that the welfare of the Iraqi people is protected, in stark contrast to the appalling behaviour of an Iraqi regime which has shown itself to be completely insensitive to the suffering of its own people." He concluded by saying that "this report reflects unfavourably on the Sub-Commission and on its author." On 11 August 2000 the Sub-Commission unanimously adopted Resolution 2000/1 on human rights and humanitarian consequences of sanctions, including embargoes. Among other recommendations, the resolution appeals to the Commission on Human Rights to recommend to the Security Council that, as a first step, "it alleviate sanctions regimes so as to eliminate their impact on the civilian population by permitting the import of civilian goods, in particular to ensure access to food and medical and pharmaceutical supplies and other products vital to the health of the population in all cases." WORKING GROUP ON TRANSNATIONAL CORPORATIONS The Working Group on Transnational Corporations (TNCs) met three times during this session of the Sub-Commission to debate the working methods and activities of TNCs. A working paper by David Weissbrodt (United States) and its addenda, which elaborate draft principles relating to the human rights conduct of companies (E/CN.4/Sub.2/2000/WG.2/WP.1, Add.1 and Add.2), served as background documents for the discussions. The draft principles aim to serve as the groundwork for a further step toward possibly proposing legally-binding principles for companies. They cover a wide range of human rights issues including war crimes, crimes against humanity, discrimination, slavery, forced and child labour, and the right to self-determination. They also include labour rights, as well as consumer and environmental protection. The working paper says that the Sub-Commission should undertake an in-depth study of the human rights obligations of non-state actors, as most international human rights texts refer only to the conduct of Governments. In the meantime, it says a code of conduct for TNCs might initially refer to the Universal Declaration of Human Rights. Sub-Commission expert Fran‡oise Hampson (United Kingdom) joined Mr. Weissbrodt in stressing the need to define standards that apply to all companies (transnational as well as domestic). They said this is necessary because in many cases it is national subcontractors that violate human rights standards, and TNCs could incorporate themselves in a domestic company and thus bypass such an international code if it applied only to TNCs. NGOs such as Human Rights Advocates, Pax Romana and the American Association of Jurists noted the need for developing an international legally-binding code of conduct for companies. However they stressed the importance of independent monitoring as a basis for success. They recommended that a drafting committee be organized to draft a treaty or convention on the conduct of TNCs. There was discussion but no consensus within the Working Group on whether or not the draft principles should be legally binding. Mr. El Hadji Guisse (Senegal), Chairman of the Sub-Commission's Working Group on TNCs, was responsible for drafting a final report on the Working Group's deliberations (E/CN.4/Sub.2/2000/12) and the Sub-Commission's debate on the issue. The report says the scope of the draft principles should apply to all companies, not only TNCs, in order to include subcontracting domestic companies. Moreover, it stresses the responsibility of both the host and home Governments in respecting, ensuring respect and promoting internationally recognized human rights norms, with an accompanying obligation of companies to respect international human rights within their spheres of activity and influence. The list of draft principles is designed for Governments to identify types of legislation that should be enacted. The Working Group on TNCs will continue to study the issue and will discuss it during next year's session. At that time a decision will also be made about a possible extension of the Working Group, whose mandate will expire next year. Mr. Weissbrodt will redraft the principles, which will include strengthening the provisions on implementation. In addition, Sub-Commission expert Asbj rn Eide (Norway) will draft a working paper on procedures for the implementation of standards on the "human rights conduct of companies." Mr. Guisse will revise and update his earlier working paper (E/CN.4/Sub.2/1998/6) on consequences of the working methods and activities of TNCs, as well as the responsibility of States and TNCs with regard to the violation of all human rights. NGOs are invited to submit updated reports and studies on the activities of TNCs. The draft principles are aimed to be adopted during next year's session of the Sub-Commission. WORLD CONFERENCE AGAINST RACISM The Sub-Commission discussed preparations for the 2001 World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (WCAR) and unanimously adopted a number of resolutions. Resolution 2000/2 requests the Preparatory Committee (PrepCom) to address the issue of migrant workers. Based on reports and working papers drafted by different members of the Sub-Commission, Resolution 2000/3 outlines a number of issues it says the WCAR should address. These include the link between contemporary forms of slavery and racial discrimination; the impact of economic globalization on racial equality; treatment of "non-citizens" and displaced persons; remedies and redress mechanisms for racial discrimination; affirmative action; minorities; and indigenous peoples. A number of Sub-Commission experts and Mr. Bossuyt, member of the UN Committee on the Elimination of Racial Discrimination, put forward background working papers and reports on the issue of affirmative action. Paulo Sergi˘ Pinheiro (Brazil), Sub-Commission representative in the PrepComs and WCAR, introduced his working paper on proposals for the WCAR's work. Mr. Pinheiro said issues that the WCAR should attempt to tackle include xenophobia, especially directed toward migrants and minorities; "double discrimination" due to race/gender or race/handicap; discrimination in the juvenile system; and police accountability. Mr. Pinheiro said he would support the widest possible involvement of NGOs in the PrepComs, especially those representing indigenous peoples and minorities. Erica-Irene Daes (Greece) commented on her working paper on proposals for work of the WCAR relating to discrimination against indigenous peoples. She noted the importance of formal mechanisms for their participation in the WCAR. She suggested the High Commissioner for Human Rights organize a seminar on indigenous peoples and justice during the preparatory process, and that indigenous peoples should be able to organize parallel activities to the conference such as panel discussions. MINORITY RIGHTS The Sub-Commission traditionally gives considerable attention to the question of minority rights. This year's debate was spread over two days, with one dedicated to the rights of the Roma population. Discussion on the relationship and distinction between the rights of persons belonging to minorities and those of indigenous peoples was based on a working paper prepared by Ms. Daes and Mr. Eide (E/CN.4/Sub.2/2000/10). The paper concludes that "persons belonging to minorities often have several identities and participate actively in the common domain. Indigenous rights, on the other hand, tend to consolidate and strengthen the separateness of these peoples from other groups of society." The paper also considers that indigenous groups are distinguished from minority groups by their characterization of, among other things, their geographical concentration and "internal self-determination." The Sub-Commission unanimously adopted a Resolution on Rights of Minorities (E/CN.4/Sub.2/2000/L.27), which endorses conclusions of the Sub-Commission's Working Group on Minorities as contained in the report drafted by Mr. Eide (E/CN.4/Sub.2/2000/27). The report recommends further development of regional networks and studies regarding implementation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities and focuses on promoting mutual understanding between and among minorities and governments. The Sub-Commission adopted, without a vote, a Decision on Human Rights Problems and Protection of the Roma (E/CN.4/Sub.2/2000/L.21). The Decision suggests that the Commission on Human Rights considers the appointment of Sub-Commission expert Yeung Kam Yeung Sik Yuen (Mauritius) as Special Rapporteur with the task of preparing a comprehensive study on the human rights problems of the Roma, based on his working paper (E/CN.4/Sub.2/2000/28). This working paper addresses the need for tougher anti-racism laws and for prosecution and punishment of those who attack or discriminate against Roma. It says Governments should be obliged to protect the rights of Roma and provide effective remedies, as well as medical and financial assistance, to victims of human rights violations. WOMEN AND CHILDREN The Sub-Commission unanimously adopted Resolution 2000/11 on the situation of women and girls in territories controlled by Afghan armed groups. It describes the violation of civil and political rights of women and girls in the country as well as their rights to health, employment, education and security. The resolution was cited by many observers as an example of the way in which Sub-Commission experts may try to surpass one of the body's new rules of procedure to no longer adopt resolutions and decisions with country-specific references. A second Resolution (2000/10) addresses harmful traditional practices affecting the health of women and girl children, such as so-called honour killings, dowry-related violence and female genital mutilation (FGM). It welcomes what it describes as progress in some countries to combat these practices and proposes to organize regional seminars on ways to overcome obstacles in implementing the Sub-Commission's 1994 Plan of Action for the Elimination of Harmful Traditional Practices. This proposal was strongly supported by the World Federation of Methodist and Uniting Church Women, an NGO that took the floor on behalf of the NGO Working Group on the Girl Child. Another NGO, the Transnational Radical Party, focused its statement on damage done by the practice of FGM and on identifying ways to promote its elimination. INDIGENOUS PEOPLES The Sub-Commission adopted Resolution 2000/14 on the Working Group on Indigenous Peoples, which requests the Commission on Human Rights to consider appointing a Special Rapporteur on Indigenous Issues. Resolution 2000/15 on the International Decade of the World's Indigenous Peoples proposes organizing a workshop on "indigenous peoples, private sector natural resource, energy and mining companies and human rights" before the end of 2002. It also invites the Commission to recommend organizing an international conference on indigenous issues to evaluate the International Decade on the World's Indigenous People. The workshop would be held in 2003, the last year of the Decade. In Resolution 2000/15 the Sub-Commission notes that the establishment of a Permanent Forum for Indigenous Peoples should not necessarily be construed as grounds for the abolition of the Sub-Commission's Working Group on Indigenous Peoples. CONTACT Guennadi Lebakine Secretary of the Sub-Commission on the Promotion and Protection of Human Rights Office of the High Commissioner for Human Rights Palais des Nations, CH-1211 Geneva 10, Switzerland telephone +41-22/917 9328 fax +41-22/917 9011 e-mail website (www.unhchr.ch) For information on the World Conference Against Racism: Laurie Wiseberg NGO Liaison, WCAR Office of the High Commissioner for Human Rights Palais des Nations, CH-1211 Geneva 10, Switzerland telephone +41-22/917 9393 fax +41-22/917 9050 e-mail website (www.unhchr.ch/html/racism/home.htm) This edition of NGLS Roundup was prepared by the United Nations Non-Governmental Liaison Service (NGLS). The NGLS Roundup is produced for NGOs and others interested in the institutions, policies and activities of the UN system and is not an official record.