Palais des Nations
After the polarized 58th session of the UN Commission on Human Rights (18 March to 26 April 2002), there was much interest in how the Sub-Commission would handle, from a thematic perspective, some controversial topics.
In particular, the subject of international efforts to combat terrorism in the aftermath of 11 September and its relationship with human rights and humanitarian standards attracted much debate during the Sub-Commission. Generally, experts and NGOs recalled the United States’ steps and policies intended to prevent the application of international human rights law to the activities of the US or of US personnel abroad (e.g. use of the Guantanamo Bay military base for Al Qaeda prisoners, the decision to give US personnel in peacekeeping operations immunity from the International Criminal Court, the opposition to the Optional Protocol to the Convention Against Torture). However, it is interesting to note the withdrawal of the resolution tabled by Ms. Hampson (United Kingdom) calling for the establishment of a Sub-Commission Working Group to study the compatibility of counter-terrorism measures with international human rights standards if the Counter-Terrorism Committee of the Security Council failed to set any mechanism. Another resolution tabled by Ms. Warzazi (Morocco) merely called upon the Office of the High Commissioner to continue to attach high priority to this issue of the relationship between terrorism and human rights, and asked the Commission on Human Rights (CHR) to draw the attention of the Counter-Terrorism Committee to the need to include the question of respect for human rights in their studies.
Franciscans International very much appreciated Mr. Weissbrodt’s initiative (United States)—which received favourable comments from other Sub-Commission experts—to address the question of human trafficking under agenda item two (Violation of human rights in any part of the world) and not solely from a women’s rights perspective. As indicated in our oral statement and in our other advocacy efforts, FI believes strongly that human trafficking is a gross violation of human rights and fundamental freedoms and that trafficking in persons is a global phenomenon, one that, as Mr. Weissbrodt stated, “every country must address by adopting and enforcing adequate laws and regulations. ... Human rights violations must be put, therefore, at the centre of the understanding, prevention, detection and repudiation of human trafficking”.
We regret the debate on reminding States of their obligation not to return people to territories where they have a well-founded fear of being persecuted upon their return that arose during the discussion of a resolution on the international protection of refugees and the vote requested on that paragraph. The controversy arose when Mr. Chen (China) asked, with Mr. Alfonso Martinez’s (Cuba) support, to replace the word “people” with “refugees”; a clearly politically charged suggestion. Ms. Hampson (United Kingdom) and Mr. Yokota (Japan) appropriately recalled that international human rights norms (including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention against Torture) and customary international law, concur in using the term “people”, which also includes refugees when it comes to this specific case. The distinction is an important one, since the more narrow definition of “refugee” would exclude, for example, those who are internally displaced or victims of discrimination.
On economic matters, we appreciated the Sub-Commission’s recommendation to the secretariat of the World Trade Organization and the members of its Council of Trade in Services, that they include consideration of the human rights implications of their deliberations and take into account relevant reports of the High Commissioner for Human Rights. Also, we see the adoption of Responsibilities of Transnational Corporations and other Business Enterprises with regard to Human Rights by the Working Group on the Working Methods and Activities of Transnational Corporations as an important development in consolidating human rights standards. The resolution will be fully discussed by the whole Sub-Commission at its next session.
The document highlights some specific areas, namely:
- the right to equal opportunity and non-discriminatory treatment,
- the right to security of persons,
- the right of workers,
- the respect for national sovereignty and human rights,
- the obligations with regard to consumer protection,
- the obligations with regard to environmental protection. In addition, it also provides general provisions for its implementation.
Finally, we are encouraged by the consensus rallied by Sub-Commission experts on a Chairman’s statement requesting that US authorities “do anything” to reprieve the execution of Javier Suarez Medina. A Mexican national, Javier was held on death row for thirteen years. The statement of the Chairman called US authorities to re-examine Javier’s case with attention to his right to benefit from the consular assistance and his right to a fair trial. Despite the failure of the appeal, the Sub-Commission proved itself able to respond promptly and in full accordance with international human rights protection standards to a critical case.
FRANCISCANS INTERNATIONAL ADVOCACY ROLE
In pursuing the objectives of our Program “Combating Human Trafficking”,
Franciscans International used the Sub-Commission as a platform to channel Franciscan concerns and consolidate human rights language on this troubling topic.
The report of the Sub-Commission Working Group on Contemporary Forms of Slavery, introduced during the session, reflected the input given by Charity Nkandu SFMA on the situation of children in Zambia. In particular, the document highlighted the following points that were contained in Sr. Charity’s testimony:
- Although education is free, it appears that the dire economic situation of many children forces them to leave school;
- Poverty and the increase in HIV-caused divorce and mortality rates of parents, compel children to try to support themselves by taking to the streets;
- Orphans forced to care for their young siblings often take them begging;
- Many children are victims of sexual exploitation or forced into domestic service, often by wealthier family members;
- Cases of sexual exploitation of children are aggravated by certain spiritual and religious beliefs;
- Many people believe that sexual relations with virgins and children provide protection or even cures for certain diseases, in particular HIV/AIDS; and
- Children are also victims of trafficking in several cases. For instance, bogus scholarships are advertised over the Internet and girls are often trapped into paying for their transport in kind by becoming prostitutes on arrival at their destination.
FI also worked closely with Ms. Warzazi in proposing text for the resolution on Contemporary Forms of Slavery. We are pleased to note that the experts agreed to:
- Call upon States to recognize that human trafficking is a gross violation of human rights and fundamental freedoms and, hence, to criminalize it in all its forms;
- Call upon all States, that have not already done so, to ratify the International Labor Organization Convention (No. 182) concerning the Prohibition of and Immediate Action for the Elimination of the Worst Forms of Child Labour (which includes trafficking, forced labour, debt bondage, forced recruitment into armed conflicts, commercial sexual exploitation and hazardous work) and call upon States parties to the Convention to harmonize their national legislation with the Convention;
- Call upon States to provide protection, assistance and temporary residence permits to victims that are not contingent on their cooperation with the prosecution of their exploiters, as articulated in articles six, seven and eight of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Conventions against Transnational Organized Crime; and,
- Recommend that the General Assembly consider declaring a United Nations year against trafficking in persons, especially women, youth and children, in order to protect their dignity and human rights.
Following our joint statement on capital punishment (see Highlights of FI Statements - item three), Franciscans International and Dominicans for Justice and Peace intensified efforts to persuade Sub-Commission experts to take a clear position on the case of Javier Suarez Medina. As a result, a Chairman’s statement was adopted drawing the urgent attention of United States authorities to Javier’s situation. Barely 19 years old when he was sentenced to death, the Sub-Commission stated that among interferences in Javier’s right to a defence had been a failure by US authorities to comply with obligations of the 1963 Vienna Convention on Consular Relations, which guarantees consular assistance for foreign detainees. U.N. High Commissioner for Human Rights, Mary Robinson, joined the clemency appeals, urging in a letter to US Secretary of State, Colin Powell, that the matter be reviewed.
FI and Dominican representatives also issued an urgent appeal to their respective families, requesting that they voice their support for the Sub-Commission’s declaration to Texas Governor Rick Perry. The appeal called the United States to reprieve Javier’s execution and to review the case once more, in light of clear violations of the defendant’s rights to receive consular assistance and a fair trial.
Regrettably, Javier was executed as scheduled on 14 August 2002. A press release issued by his counsel, Lydia Brandt noted: "As of earlier today, seventeen nations had expressed deep concern over the undeniable violation of Mr. Suarez Medina’s consular rights, either by sending appeals for clemency or by intervening at the Supreme Court in support of a judicial review. The nations are, first and foremost, Mexico, along with Argentina, Brazil, Chile, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Panama, Paraguay, Poland, Slovenia, Spain, Switzerland, Uruguay and Venezuela. An extraordinary array of inter-governmental, religious, legal and human rights organizations also called on the United States and Texas authorities to stay the execution. They included: the European Union, the Inter-American Commission for Human Rights, UN Sub-Commission for the Promotion and Protection of Human Rights, the UN High Commissioner for Human Rights, Amnesty International, the American Bar Association, the Dominican and Franciscan Orders and many others.” Mexican President, Vicente Fox, cancelled a trip to Texas scheduled for later August. “This decision is an unequivocal sign of our rejection of the execution of the co-national Javier Suarez Medina”, said Presidential spokesperson, Rodolfo Elizondo during a news conference.
HIGHLIGHTS OF FRANCISCANS INTERNATIONAL STATEMENTS
Item Two: Question of the violation of human rights and fundamental freedoms in all countries - Vieques, Puerto Rico.
Franciscans International and Dominxicans for Justice and Peace alerted the Sub-Commission that the US Navy, NATO countries and arms manufacturers use the island of Vieques, Puerto Rico for military training and weapons testing, including the use of depleted uranium.
In accordance with the information received from the Human Rights Committee of Franciscans and Dominicans of Puerto Rico, FI stated that these exercises have a detrimental impact on the livelihood of the local population. Specifically, residents of Vieques have experienced a serious decline in their health and have witnessed economic stagnation and the destruction of marine life, all due to the military activity.
- Recommended that the Sub-Commission examine the situation of human rights violations in Vieques;
- Urged the United States and NATO countries to end immediately their military manoeuvres;
- Asked the government of the United States to decontaminate impact areas; and,
- Requested that government of the United States respect the fundamental rights of the people of Vieques.
Item Three: Administration of justice – Death penalty
In a call for the universal abolition of the death penalty, Franciscans International, Dominicans for Justice and Peace and Pax Christi International acknowledged some recent positive developments in Guatemala, Kyrgyzstan and Turkey. In addition, we reported that the US Supreme Court declared the execution of people with mental retardation unconstitutional and found that in States where a judge, not a jury, assign the death penalty, the punishment violates the constitutional rights of those sentenced.
At the same time, we also expressed deep concern about the unjust and unequal application of the punishment. In countries where the death penalty continues to be enacted, it is more likely to be applied in a racist manner, and to minorities and the under classes in general. In this context, we highlighted the case of Javier Suarez Medina, a young Mexican national scheduled for execution in Texas on 14 August 2002. After 13 years on death row, we told the experts that Javier has exhausted all normal avenues of legal appeal and, unless the courts or the Governor of Texas intervene, he faces death by lethal injection despite mounting concerns over the reliability of his sentence.
- Called on all governments to abolish the death penalty and to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, which requires governments to put an end to capital punishment;
- Urged governments to seek alternatives to the death penalty that reflect intelligence, civility, compassion and justice;
- Encouraged the Sub-Commission to undertake a comprehensive study on discrimination in the justice system;
- Supported the moratorium called for by Pope John Paul II in a 1998 address, the call for the abolition of the death penalty by the US Bishops and the international initiative, Moratorium Now, a movement organized to suspend all executions; and,
- Recommended that the Sub-Commission, with due respect of its mandate, examine the case of Javier Suarez Medina for its possible action before his execution on 14 August 2002.
Item Five: Prevention of discrimination – Christian minority in Pakistan
Franciscans International and Dominicans for Justice and Peace regretted that in some countries religious discrimination is inscribed in laws and imbedded in social structures. As such, religious discrimination is one of the root causes of a number of conflicts and ongoing violence, including a major motivation for attacks by extremists against religious minorities. We highlighted that existing Pakistani legislation promotes a culture of intolerance, division and extremism. The massacre of Christians in Bahawalpur, the killings in Islamabad and the Blasphemy Laws, we argued, are a result of such measures. In addition, we stated that the absence of political will on the part of the Pakistani government to end this discrimination and prosecute these cases further encourages groups to victimize individuals and organizations on the basis of their religious identity.
Our organizations, therefore, urged the government of Pakistan to:
- Repeal all discriminatory laws, including the Blasphemy Laws section 295B and 295C of the Pakistan Penal Code;
- Ratify the International Covenant on Civil and Political Rights and its Optional Protocol, the International Covenant on Economic, Social and Cultural Rights, the Convention against Torture, and the Convention on the Protection of the Rights of All Migrant Workers;
- Cooperate with the existing Treaty Bodies and other UN mechanisms and special procedures;
- Invite the Special Rapporteur on Freedom of Religion or Belief to visit Pakistan and guarantee him full and unrestricted access to individual religious minorities' and their communities; and,
- Take even stronger measures to protect the lives, property, respect and honour of minorities.
Item Five: Prevention of discrimination – Non-citizens and asylum-seekers in Australia
Franciscans International, Caritas Internationalis, Dominicans for Justice and Peace and Pax Christi International said that Australia’s policy of detaining most arrivals in the country that fail to carry valid travel documents, violates provisions of the Universal Declaration of Human Rights and of the Convention on the Status of Refugees. Also, contrary to Article Nine of the International Covenant on Civil and Political Rights and Article Thirty Nine of the Convention on the Rights of the Child, Australia has banned asylum seekers from accessing its courts to challenge the legality of their detention and placed constraints upon the judiciary at all stages. We also questioned the legal basis of the management of detention centres by a commercial entity and the introduction by Australia of the Temporary Protection Visa, which has removed the right to family reunification, reduced entitlement to community assistance and put undue restrictions on information sharing.
Our organizations, therefore, called the Sub-Commission to:
- Adopt a resolution denouncing policies that promote violations of the rights of people seeking asylum; and,
- Call upon the Australian government to abolish mandatory detention and institute a system of community release for asylum seekers and refugees.
Item Six: Contemporary Forms of Slavery – Human Trafficking
Franciscans International, Caritas Internationalis and Dominicans for Justice and Peace declared that contemporary forms of slavery, including human trafficking, are an unacceptable crime against humanity and a flagrant violation of human rights. We also deplored the practice of trafficking persons across borders for sexual exploitation and indicated that these persons are generally victims of poverty, unemployment and the deterioration of traditional life styles while their traffickers are part of a very lucrative and relatively free risk business.
Our organizations, therefore, called the Sub-Commission to:
- Urge States that have not yet done so, to sign and ratify the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime;
- Urge States that have not yet done so, to sign and ratify the Convention on the Elimination of All Forms of Discrimination against Women and its Optional Protocol, the Convention on the Rights of the Child and its Optional Protocol on sale of children, child prostitution and child pornography and the 1999 ILO Convention concerning the prohibition and immediate action for the elimination of the worst forms of child labour (No. 182);
- Call upon States to recognize that human trafficking is a gross violation of human rights and fundamental freedoms and, consequently, to adopt a human rights approach to understand, prevent, detect and punish the action;
- Call upon governments to criminalize trafficking in human beings in all its forms and to condemn and penalize traffickers and intermediaries, while ensuring protection and assistance to trafficking victims with full respect for their human rights and not contingent on their cooperation with the prosecution of their exploiters;
- Urge States to devise, enforce and strengthen effective measures at the national regional and international levels to prevent, combat and eliminate all forms of trafficking through comprehensive anti-trafficking strategies which include legislative measures, prevention campaigns and information exchange;
- Urge governments to adopt or strengthen legislative and other measures, such as educational, social or cultural, internally and through bilateral or multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons that leads to human trafficking;
- Urge States to allocate resources, as appropriate, to provide comprehensive programs to assist, protect, rehabilitate and provide a healing reintegration into society for victims; and,
- Recommend that the General Assembly consider declaring a United Nations year against trafficking in persons, especially women, youth and children, in order to protect their dignity and human rights.
HIGHLIGHTS OF THE 54th SESSION OF THE SUB-COMMISSION
On-going working papers
The Sub-Commission approved the continuation of the following studies to be conducted by its present or former members:
- Human rights and weapons of mass destruction, or with indiscriminate effect, or of a nature to cause superfluous injury or unnecessary suffering - Mr. Sik Yuen (Mauritius)
- Promotion and consolidation of democracy - Mr. Rodriguez-Cuadros (Peru)
- Human rights and bioethics - Ms. Motoc (Romania)
- Reservations to human rights treaties - Ms. Hampson (United Kingdom)
- Human rights and terrorism, including a discussion of national, regional and international measures adopted and/or applied after 11 September 2001 and of the conceptual debate arising from them - Ms. Koufa (Greece)
- Discrimination based on work and descent - Mr. Eide (Norway) and Mr. Yokota (Japan)
- Peaceful and constructive approaches to situations involving minorities - Mr. Eide (Norway)
- Non-discrimination as enshrined in Article 2,2 of the International Covenant on Economic, Social and Cultural Rights, which requests States’ parties to exercise the rights enunciated in the Covenant without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. - Mr. Van Hoof (Netherlands)
- Relationship between the enjoyment of economic, social and cultural rights and the promotion of the realization of the right to drinking water supply and sanitation - Mr. Guissé (Senegal)
- Globalisation and its impact on the full enjoyment of human rights – Mr. Oloka-Onyango (Uganda) and Ms. Udagama (Sri Lanka)
- Scope of the activities and accountability of armed forces, United Nations civilian police, international civil servants and experts taking part in peace support operations - Ms. Hampson (United Kingdom)
- Administration of justice and through military tribunals - Mr. Decaux (France)
New working papers
The Sub-Commission approved to entrust one of its members to start studying the following topics:
- Rights of women married to foreigners - Mr. Kartashkin (Russia)
- Regulation of citizenship by successor State with respect to nationals of the predecessor States - Mr. Kartashkin (Russia)
- Issues and modalities for the effective universality of international human rights treaties - Mr. Decaux (France)
- Development of guiding principles on the implementation of existing human rights norms and standards in the context of the fight against extreme poverty - Ms. Motoc (Romania), Mr. Eide (Norway), Mr. Yokota (Japan), Mr. Guissé (Senegal), Mr. Bengoa (Chile) as coordinator and Mr. Decaux (France) and Mr. Pinheiro (Brazil) as alternates
- Impact of corruption on the realization and enjoyment of human rights - Ms. Mbonu (Nigeria)
Recommendations to the UN Commission on Human Rights
The Sub-Commission addressed the following proposals to the Commission for consideration and possible approval at its 2003 session:
A. Appointment of new Special Rapporteurs
- To appoint Ms. Frey (United States) as Special Rapporteur on the prevention of human rights violations committed with small arms and light weapons;
- To appoint Ms. Daes (Greece) as Special Rapporteur on indigenous peoples’ permanent sovereignty over natural resources;
- To appoint Mr. Pinheiro (Brazil) as Special Rapporteur on housing and property restitution in the context of the return of refugees and internally displaced persons; and,
- To appoint Ms. Zerrougui (Algeria) as Special Rapporteur on discrimination in the criminal justice system with a view to determining the most effective means of ensuring equal treatment in the criminal justice system for all persons without discrimination, particularly vulnerable persons.
B. Other requests
- To request the UN High Commissioner for Human Rights to organize before the end of the International Decade of the World’s Indigenous People, a seminar on treaties, agreements and other constructive arrangements between States and indigenous peoples to explore possible ways to follow up on the recommendations included in the final report of the Special Rapporteur, Mr. Alfonso Martinez (Cuba);
- To endorse the Sub-Commission’s view regarding the continuing need for the Working Group on Indigenous Populations on account of its mandate,
- To endorse the Sub-Commission’s request that the Working Group on Indigenous Populations meet for five working days prior to the 55th session of the Sub-Commission in 2003;
- To consider the establishment of a special mechanism on minority issues;
- To draw the attention of the Counter-Terrorism Committee of the Security Council to the need to include the question of respect for human rights in the study of measures taken by States in the fight against terrorism and itself to pay particular attention to the compatibility with human rights law of national and international measures adopted or applied to combat terrorism;
- To mandate the Commission’s Working Group to proceed with the drafting of a substantive text of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights; and,
- To establish or nominate a group of experts, a special rapporteur or a working group to receive information and undertake effective measures with regard to human rights violations or abuses committed by transnational corporations and other enterprises.
Main requests to the Office of the High Commissioner for Human Rights
The Sub-Commission addressed the following specific requests to the OHCHR:
- To submit a report on human rights, trade and investment, including specific attention to the human rights implications of privatisation;
- To make a comprehensive submission on human rights, trade and investment to the Fifth Ministerial Conference of the World Trade Organization (Cancun, Mexico, September 2003);
- To continue to attach high priority to examining international and national measures adopted or applied in the fight against terrorism, including the compatibility of such measures with the obligations of States under international human rights law;
- To initiate a process of reflection on the recognition of responsibility and reparation for massive and flagrant violations of human rights which constitute crimes against humanity and which took place during the period of slavery, colonialism and war conquest; and,
- To extend its cooperation to the Food and Agriculture Organization on the right to food and international guidelines for its implementation.
On 25 July 2002, the Economic and Social Council endorsed the decision of the Commission on Human Rights to authorize the holding of a pre-sessional forum on economic, social and cultural rights in Geneva, to be known as the Social Forum, before the 54th session of the Sub-Commission. The Social Forum was comprised of three panels, on: “Globalisation and Human Rights”; “Right to adequate food and poverty reduction: the realities of hunger and poverty reduction strategies: experiences, views and visions”; and “Right to adequate food and poverty reduction: rural poverty reduction strategies and the right to food: what have we learnt?”
The Social Forum issued several recommendations in relation to poverty reduction and the right to food both at the national and international level, including that:
- States should ensure an effective land registration system and protect the rights of tenant farmers,
- States should adopt or strengthen measures to facilitate access of small farmers to the markets,
- States should protect the rights of landless agricultural labourers, including the right to organize and form trade unions and to other core labour standards, as an essential element in promoting the right to food,
- The UN system, related agencies and other international organizations (in particular the international financial institutions and the WTO) should incorporate universally recognized human rights norms and principles, including the right to food, in their work, activities and value system with due respect to their respective mandates,
- States should take steps to respect the enjoyment of the right to food in other countries, to protect that right, to facilitate access to food and to provide the necessary aid when required. In international agreements, whenever relevant, States should ensure that the right to adequate food is given due attention and consider the development of further international legal instruments to that end.
In this respect, the Sub-Commission:
- Decided that the next intersessional meeting of the Social Forum will add