Also Discusses Proposal on Citizens, Safety and Human Rights
21 February 2013
The Human Rights Council Advisory Committee today discussed a proposal for a study it could recommend to the Human Rights Council on human rights and humanitarian action; a proposal of a model law on equal opportunities and non-discrimination; and a proposal on citizens, safety and human rights.
Cecilia Rachel V. Quisumbing, Committee Expert, introducing the draft proposal for a study on human rights and humanitarian action, said it was on a subject that impacted tens of millions of people around the world affected in several ways by humanitarian crises, of which there were different types. It was not aimed towards a norm-setting document or a resolution, but was more of a snapshot, a look at where the world was in terms of addressing the human rights issues that accompanied humanitarian crises post-disaster and armed conflict. It was particularly timely because of the frequent and more ferocious natural disasters that had been occurring and proposed to look at as many different actors as possible, as well as to identify challenges and gaps.
The following Committee members took the floor: Saeed Mohamed Al Faihani, Wolfgang Stefan Heinz, Anantonia Reyes Prado, Obiora Chinedu Okafor, Ahmer Bilal Soofi, Shigeki Sakamoto, and Laurence Boisson de Chazournes. The United States and Uruguay also spoke on this topic.
Mona Zulficar, Committee Expert, introducing the draft proposal on a model law on equal opportunities and non-discrimination, said that in this world, where there was a very wealthy heritage of human rights treaties and documents, implementation was poor and human rights were suffering. It was important to look at laws as an instrument of change. There were different types of law, not just prescriptive, but also new types of laws that created mechanisms to reinforce implementation, to help change the culture, and this model law was that kind of law. Equal opportunity and non-discrimination were at the heart of all human rights, and would have a rollover effect on all other human rights.
The following Committee members took the floor: Cecilia Rachel V. Quisumbing, Dheerujlall Seetulsingh, Wolfgang Stefan Heinz, Saeed Mohamed Al Faihani, and Chung Chinsung.
Mario L. Coriolano, Committee Expert, made a proposal on citizens, safety and human rights. In light of the reality of growing social and institutional violence, new forms of thinking, acting, and new alternative models with a human rights focus were required. An alternative model with a human rights perspective should be created, to replace the current prevailing one that had led to mass violations of human rights as well as civil, political, economic, social and cultural rights.
The following Committee members took the floor: Wolfgang Stefan Heinz, Anantonia Reyes Prado, José Antonio Bengoa Cabello, and Imeru Tamrat Yigezu.
Also during the day, Committee Expert Mona Zulficar briefed the Advisory Committee about the meeting of the Open-ended Intergovernmental Group on the Right to Peace.
The Human Rights Council Advisory Committee will hold its next public meeting on Friday, 22 February 2013, at 11 a.m., to adopt the draft text on the report of the tenth session and conclude its session.
Discussion on Human Rights and Humanitarian Action
WOLFGANG STEFAN HEINZ, President of the Advisory Committee, said that a draft proposal had been circulated on human rights and humanitarian action.
CECILIA RACHEL V. QUISUMBING, Committee Expert, introducing the draft proposal for a study on human rights and humanitarian action, said that the proposed study was on a subject that impacted tens of millions of people around the world affected in several ways by humanitarian crises, of which there were different types. It was not aimed towards a norm-setting document or a resolution, but was more a snapshot, a look at where the world was in terms of addressing the human rights issues that accompanied humanitarian crises post-disaster and armed conflict. It was particularly timely because of the frequent and more ferocious natural disasters that had been occurring. The study was not only within the work of the Council, it was of great importance to it, and there was empirical evidence of that. In the first round of the Universal Periodic Review, there had been a total of about 1,200 recommendations referring to issues related to forced displacement, asylum or statelessness. The study intended to build on the work already done. There was no study that looked at the different actors and vulnerable sectors within the paradigm of human rights. It proposed to look at as many different actors as possible, including local governments and civil society, and identify challenges and gaps.
SAEED MOHAMED AL FAIHANI, Vice-Chairperson of the Advisory Committee, said that he agreed with the inclusion in the study of armed conflict and political dissent that escalated to violence, as well as natural disasters, housing and health. The study, if the Committee was mandated, would not encroach on the mandate of any other organ of the United Nations, but rather help them. It was hoped that civil society would be included, as an important actor in these issues.
United States, said that it believed it was unnecessary for the Advisory Committee to discuss issues relating to best practices and challenges on this topic. Other international entities had successfully made progress and this was already a priority throughout humanitarian response. The Inter-Agency Standing Committee, for example, had already published guidance on the subject and furthermore the Advisory Committee did not have the expertise to advise countries on the advancement of human rights in humanitarian action.
Uruguay said that it was interested in this timely issue. In the organising meeting of the Council it had announced that it would present a draft resolution requesting the Advisory Committee to prepare a study in that line. Human rights violations were taking place in post-conflict and post-disaster situations and due consideration should be given to this in the study. A clear picture was needed on what the situation was regarding relief in these situations, as well as on existing best practices. It agreed with the United States in terms of the work already carried out and duplication and it would be ensured that this would be made clear in the draft resolution. Guidelines were not sought, but rather a snapshot of the situation.
WOLFGANG STEFAN HEINZ, President of the Advisory Committee, said that it was important to avoid duplication so it was important to take note of developments by other bodies. It seemed so far that the study would not be doing this. Duplication could have been raised on different studies that the Committee had undertaken, on topics that were sometimes in the middle or the border of humanitarian work. The study was not trying to reinvent the wheel but to get a better picture on the situation. Had time been given on how to consult with stakeholders, to reflect their practical experience? Mr. Heinz also brought up the matter of prioritising issues to be addressed.
ANANTONIA REYES PRADO, Vice-Chairperson of the Advisory Committee, said that linking human rights with humanitarian action was very important. It was recommended that participation and risk management be emphasised. There was a need to look into prior actions for all areas in which local governments and different actors could have an impact on the way natural disasters were managed.
OBIORA CHINEDU OKAFOR, Rapporteur of the Advisory Committee, supported this timely proposal. The remit of the Advisory Committee in the human rights field was expansive and only limited by the authority of the Human Rights Council to give or refuse a mandate. He did not believe that the subject of the study had been sufficiently dealt with, especially from a human rights perspective, by any other agency.
AHMER BILAL SOOFI, Committee Expert, said he had mixed feelings about the proposal. The area the study was addressing had been extensively regulated by legal instruments. If the Committee was to add to this, it had to ensure that it did not run inconsistently with those mechanisms. The conflict and the humanitarian area was already extensively regulated, but the disaster area was far less so. Disaster management and human rights issues would have an added value.
SHIGEKI SAKAMOTO, Committee Expert, said the earthquake and tsunami in March 2011 caused enormous damage and took away many lives. The nuclear power plant disaster in Fukushima continued to threaten many people’s lives and health. The protection of human rights in these situations was a serious issue and the lack of a human rights view-point posed the risk of a more dangerous situation. The Human Rights Council had not yet considered this thematic issue in great detail and there were no guidelines by the Human Rights Council on a human rights approach.
LAURENCE BOISSON DE CHAZOURNES, Committee Expert, said that it was always important to deal with subjects that were not always dealt with in the same way by different States. The mandate of the Committee was not legislative but it was more a think-tank of some sorts, giving political leaders the opportunity to take into account recommendations made. The focus was mainly on human rights and not law in the context of armed conflict. There was a need to focus more on natural disasters, in order to have a picture or perception of how to work in those situations, including in terms of prevention, which was also important.
CECILIA RACHEL V. QUISUMBING, Committee Expert, said that it was most important to underline that it was a study of what was happening on the ground. There would not be a study or discussion of humanitarian law, as there were definitely many other studies and discussions on that and there would be no added value if that had been the point of the study. If something should not be looked at because it was already regulated by law, then there would be a lot of other areas that would not be looked into, such as torture for example. This was not enough of an objection to lessen the value of the study. She did agree however that because there was so much less on disasters, that there would be great value to look into that. Disaster preparedness and response would indeed be interesting to look at, to see if they included perspectives of the vulnerable and marginalised. Armed conflict and natural disasters tended to have some similar effects. Lessons could perhaps be learned across the two situations. On priorities, because of the large number of rights, indeed there would be a pairing down but at the moment it was not sure yet which ones.
Discussion on the Model Law on Equal Opportunities and Non-Discrimination
WOLFGANG STEFAN HEINZ, President of the Advisory Committee, said that the discussion was very important because it would be reflected in news about the United Nations, and States would get an idea of where the Committee was at this moment. The Committee would now consider the model law on equal opportunities and non-discrimination.
MONA ZULFICAR, Committee Expert, introducing the draft proposal on a model law on equal opportunities and non-discrimination, said that such a model law was not a traditional or standard proposal that was or had ever been submitted to the previous sub-commission or the Committee, but was certainly an effective proposal. In this world, there was a very wealthy heritage of human rights treaties and documents, but implementation was poor. Human rights were suffering, whether at the civil, political or economic, social and cultural level. At the regional and national level the results were not so encouraging. It was important to look at laws as an instrument of change. There were different types of law, not just prescriptive, but also new types of laws that created mechanisms to reinforce implementation, to help change the culture, and this model law was that kind of law. It was a law that had machinery and that helped reinforce the protection of human rights. There were a lot of lessons to be learned from existing law. Equal opportunity and non-discrimination were at the heart of all human rights, and would have a rollover effect on all other human rights. Experience had shown that the breach of these constituted the most common way for corruption.
CECILIA RACHEL V. QUISUMBING, Committee Expert, said that the proposal reminded that human rights work should be innovative as well as practical. Law was indeed a very powerful force for change and a model law that would protect persons from discrimination and promote equality would be a very practical instrument assisting, not telling, States in building their capacity in promoting and protecting human rights. It was interesting that while the model law was the intended concrete output of the proposal, another likely outcome would be the mere process of consultations reaping fruit by putting the discussion of non-discrimination out there.
DHEERUJLALL SEETULSINGH, Committee Expert, said that there were already two international covenants and conventions dealing with discrimination and equal opportunities. The problem as he saw it was whether to go ahead with the proposal of a model law, or to first carry out a study on the matter across the board in several countries and take stock of the situation. It was suggested that a new proposal be made that a study would be carried out and then at the end, if this was accepted by the Human Rights Council, a proposal would be made to go ahead with a model law.
WOLFGANG STEFAN HEINZ, President of the Advisory Committee, had no doubts that there would be interest in the proposal. The argumentation for the proposal was very convincing. What was lacking was a brief overview of some indications, about what happened, and whether there had been any proposals at the United Nations level.
SAEED MOHAMED AL FAIHANI, Vice-Chairperson of the Advisory Committee, said that there was a need to go directly to a model law instead of a study, which would not do anything.
CECILIA RACHEL V. QUISUMBING, Committee Expert, said that considering the process of work, a two-step approach would cause undue delays. It was very easy to find out how many countries had anti-discrimination law relating to the international instruments because all of the treaty bodies that reviewed countries had them in their comments. What could be more implementation-oriented than something that could be adopted?
DHEERUJLALL SEETULSINGH, Committee Expert, said that having a model law did not mean that it would automatically be adhered to. The question of any country adopting a law depended on the political will of the particular State. If there was political will there was no need for a model law. What the reaction to the Advisory Committee proposing a model law was unknown and was a concern. It could perhaps be put forward as a study first and then a model law.
CECILIA RACHEL V. QUISUMBING, Committee Expert, said that indeed political will was required, but a model law was a tool for capacity-building and therein was the value.
CHUNG CHINSUNG, Committee Expert, said that the Committee should be implementation-oriented. Ms. Chinsung referred to a law in her own country, the Republic of Korea, on anti-racial discrimination. Right after the proclamation of this law, there was severe opposition from various parties, leading to the deletion of points in this. A model law could be really helpful for many countries trying to establish laws on anti-discrimination.
MONA ZULFICAR, Committee Expert, reminded of the time when a mandate was obtained for a draft regulation on the right to peace. There was first a review of a situation, there was a conceptual framework, there were consultations, there was a development of some principles, and then there was a drafting of the text. One did not just jump into a model law. A model law was a new, innovative proposal to help the countries of the world. There was a need that was not being attended to as it should. Through the collective wisdom of the Committee, Member States and other stakeholders, this instrument could be extremely helpful in assisting them, if they had the political will to use this instrument and put their words into action. The experience of countries on this had created a rich pool that could be drawn on. Work on a model law would not start with a study. Everybody knew that this was a very mature principle of international human rights law and needed implementation. There would be a conceptual framework based on international human rights law, there would be consultations, and if this was agreed on then the drafting process would begin.
DHEERUJLALL SEETULSINGH, Committee Expert, said that there were two steps, a conceptual framework and then a model law. If the proposal was to be forwarded to the September meeting of the Human Rights Council, he suggested that this be mentioned.
WOLFGANG STEFAN HEINZ, President of the Advisory Committee, said that there was support from the Advisory Committee for all five proposals. A number of facets had been discussed on how these could be more focused and further developed. This would be published in a summary for those interested. It would be important for the Human Rights Council to give these mandates to allow discussion at the August meeting of the Committee. Perhaps Ms. Zulficar could report on the work of the Open-ended Working Group on the right to peace.
Discussion on Meeting of Open-Ended Intergovernmental Group on the Right to Peace
MONA ZULFICAR, Committee Expert, speaking about the meeting of the Open-ended Intergovernmental Group on the Right to Peace, said there had been general comments from States and civil society on the draft declaration prepared by the Advisory Committee and on the human rights resolution establishing the Working Group and its mandate. The meeting had then discussed the draft declaration article by article. Discussions had not been put in a negotiation or drafting mood, but expression of general comments, first on the declaration as a whole. The political divide was very evident. The good thing was that no group was happy with the draft, meaning the draft really was balanced. When all started listening to each other, it was discovered that there was no single camp for or against the declaration. Each country had some concerns about certain articles. Since it was a negotiation process, this was constructive, with everyone listening. Support came from civil society which had been extremely strong and creative. This discussion had finished yesterday and general discussions were again underway. A lot of questions were asked as to why the Committee was bringing in or referring to human rights that were discussed in other fora, and Ms. Zulficar had clarified that the intention was not to jump-start or pre-empt those discussions. The intention of the Advisory Committee was to affirm linkages and their importance. The right to peace was an enabling right. She was more hopeful that there would be a convergence and that the Working Group would come up with a successful mission.
WOLFGANG STEFAN HEINZ, President of the Advisory Committee, said that when working with a drafting group and deciding which human rights standards to include in the draft declaration, there was often a catch-22 situation. When trying to include accepted human rights positions, some would say there was nothing new. When coming up with the idea of an emerging standard, or a more liberal interpretation, others came and said there was no basis in international law. Had Ms. Zulficar observed whether certain standards or ideas had faced a lot of opposition or support?
MONA ZULFICAR, Committee Expert, said that some provisions had faced across the board opposition, including domestic oppression, for example. If the draft were revised to emphasise democracy as well as human rights and to link human rights to peace with democracy, there would be a better chance of having the concept there but not stepping on the right to sovereignty. The human security title had been problematic. She had expressed how important the concept was, but was faced with comments saying that the there was no consensus on the term. The right to conscientious objection was also a subject of a lot of debate. If the declaration was redrafted, revising the points that were of concern, there was a chance that consensus could be reached.
WOLFGANG STEFAN HEINZ, President of the Advisory Committee, said that this reporting back process was very important and useful. The Advisory Committee would meet again at 3 p.m. to look at new proposals, some from old agendas and at least one new proposal.
Citizens, Safety and Human Rights and New Proposals
WOLFGANG STEFAN HEINZ, President of the Advisory Committee, said that there would be two action points put before the Committee, relating to terrorist hostage taking and how to further develop the five proposals on mandates. Comments and proposals would now be heard under the headings of impact of use of new information technologies including internet and social networking on human rights, discrimination against the poor and other marginalised groups in the context of access to justice, and thirdly speculation on the price of corn, rice, and wheat in the context of the right to food.
MARIO L. CORIOLANO, Committee Expert, wished to make a proposal on citizens, safety and human rights. In light of the reality of growing social and institutional violence, new forms of thinking, acting, and new alternative models with a human rights focus were required. Social violence and its roots causes contributed to the increased exclusion of the most vulnerable and this required public policies, preventive and comprehensive, built upon civil, political, economic, social and cultural rights. On institutional violence the police, judiciary and penitentiary institutions had an impact on the increase of institutional violence with high levels of impunity in the face of abuses of power. Reforms in those three institutions had not in recent years had a clear orientation or grounding in human rights. On the contrary, the reforms of the last 10 years had led them to a severe functioning and legitimacy crisis. An alternative model with a human rights perspective should be created to replace the current prevailing one that had led to mass violations of human rights as well as civil, political, economic, social and cultural rights.
ANANTONIA REYES PRADO, Vice-Chairperson of the Advisory Committee, highlighted the importance of the issue of citizens, safety and human rights within the broader context of human security. Talking about the Central American region the situation was very urgent in this respect, with particular reference to penitentiaries. It should also be taken as a meeting point with the Inter-American Human Rights Commission and other organizations.
JOSE ANTONIO BENGOA CABELLO, Committee Expert, also supported the issue and said it was a key issue in Latin America. A culture of police brutality remained and there were practices by the police that could be seen as torture.
WOLFGANG STEFAN HEINZ, President of the Advisory Committee, said that perhaps the Secretariat could see whether any other work had been done within the United Nations to perhaps move forward on this issue.
MARIO L. CORIOLANO, Committee Expert, said he would circulate the text electronically and in writing. The situation of the police and the overcrowding of penitentiaries in Latin America was very alarming. In Asia and Africa 98 per cent of facilities were in situations of overcrowding. They should work towards a new human rights and results-focused approach.
WOLFGANG STEFAN HEINZ, President of the Advisory Committee, said it would perhaps be good to address an urgent human rights problem, for a feasible study, and bring a new perspective to argue and justify that the work of the Advisory Committee gave some new insight and recommendations to States.
IMERU TAMRAT YIGEZU, Committee Expert, said that there were also such practices in Africa and he himself had been a victim of them. Although there were laws in place, these were not implemented. It was important to look at best practices. He had conducted a study on the situation of prisons in Ethiopia and other parts of Africa and so he was interested.
WOLFGANG STEFAN HEINZ, President of the Advisory Committee, said the Committee would now meet briefly in private. It would resume its public meeting tomorrow morning at 11 a.m. to adopt the draft text on the report of its tenth session.
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