Emerging Human Rights Issues
February 16-17, 2006
February 16, 2006
Jean-Louis Roy, President, Rights & Democracy
On behalf of Rights & Democracy, I would like to extend a warm welcome
to all of you. I also wish to dedicate our work over the next couple of days to a humble and remarkable man, Yan Christian Warinussy, the recipient of the 2005 John Humphrey Freedom Award. If you allow me, I would like to send him a message of support and solidarity in West Papua, on behalf of all of us. This way, even though he is not here, bringing up his name will remind us that the effective recognition of rights, as a path to liberation from terror and poverty, still speaks to many around the world. His name will also remind us that the themes we will be addressing, while indispensable and pressing, must not distract us from the urgency of implementing universally and effectively the fundamental rights contained in the Universal Declaration of Human Rights. I am referring, in particular, to sections 22, 23 and 25 on social rights, section 25 on the right to education, and the supplementary provisions of sections 2 and 16 devoted to gender equality. The High Commissioner for Human Rights, Louise Arbour, has justly made the effective implementation of rights the chief goal of her mandate. We must share in her conviction.
The strategic intelligence of the universal declaration has always fascinated me. Its wording is precise and lends an openness; it looks at the individual’s relationship to all powers and the powers’ relationship to Emerging Human Rights Issues the individual. A text that recognizes the predominant place of the state and the obligations of all nations, but subjects them to a universal principle, the requirement that human rights be universally applied. The text also affirms humanity’s conscience in the simple and riveting words “Universal Declaration of Human Rights.” The strategic intelligence of the Declaration is also evident in the important paths explored between the fields and its inherent obligations. Certainly, changes around the world in the last half-century—demographic, political, technological and geopolitical—have highlighted these interdependencies, seen through increased interactivity, interpenetration and inter-regulation.
The four themes of the roundtable have emerged from these changes. They reflect a whole, the parts of which are becoming richer and more advanced. They reflect the generous and resilient sides of humanity. In conclusion, I would like to make a few comments on two of the four themes that have brought us together: On religion, I will not say much, only that for the minority of us in the secular world, we have trouble grasping the fact that for most people, human knowledge is often trumped by the word of God. Consequently, we have difficulty measuring the scope of the mediation required by the spiritual, political and social world of a reality that is so foreign, distant and even contradictory to us. We belong to the faction of humanity that, according to Paul Ricoeur, shares the belief that truth is the very spirit of reason. However, this truth is no doubt more complex since it must integrate an undefined collection of people, something often overlooked by emerging powers.
Our secularism may even distance us from an understanding of the sacred,recognizing the cycle of things, the succession of divine and humangenerations, changes within humanity, so pressing in Western and African civilizations (Marguerite Yourcenar). We strive to forget that the need for transcendence is all too similar to the need for human adventure. Religion, having dominated thinking in the Western world for over 1,500 years—providing an explanation for the universe, and of history and life itself, and having a monopoly on political power—is finally in retreat. It took more than three centuries, the Enlightenment, the consolidation of science and the industrial revolution for governments and societies to February 16, 2006 “emancipate themselves” from theology, and for allowing that particulartruth, “the very spirit of reason,” to emerge. In such a short time, theworld saw the emergence of two totalitarian ideologies in the last century:fascism and communism. Popular transcendence occurred, withthese beliefs, sects and rites victimized many, while hundreds of millionsof women and men witnessed ideological fundamentalisms, Manicheandoctrines, ruthless control by governments, and expansionist goals play out all over the planet. These systems wreaked havoc on the West and, from the West, the entire world.
What kind of investment, mediation or escape from this ignorance do we require across all of humanity to make sure that governments can help bring down these endless barriers to transcendence and not strike back for reasons of ideology or being beholden to powerful interests? We will also address the most central question for human rights advocates,namely, failed states.
This concept refers to a general collapse of all state functions, from the security of a nation’s territory to the protection of its citizens; from a guaranteeing of basic civil functions to the maintenance of core public services; from the capacity to foster social cohesion to the ability to develop trust among citizens, social groups, and public authorities and institutions. The balance between what is essential for community and the safeguard of individual rights and freedoms has not been achieved in failed states.
This whole concept is difficult to grasp since it is so completely contrary to our own experiences, our expectations of stability and security, as well as our aspirations for human rights. In such a void, another system emerges, a self-serving system of rough justice, sectarian rule, armed gangs and private security forces. Impunity rules: threats of all sorts are followed by crimes against those who oppose and denounce such a state of affairs, against those who advocate for the re-establishment of the rule of law. Racketeering, shady dealings, corruption, murders, are at the core of this ersatz system. These are ugly features of the failed state. It is estimated that 4.5 million died in the Republic of Congo in the last decade, while Haiti lost 250,000 people.10 Emerging Human Rights Issues Failed states generally take root in poor countries. The lack of freedom from want adds itself to the lack of freedom from fear. Survival becomes a daily struggle.
If truth be told, humanity’s conscience does not seem to be particularly shocked by this extreme state of affairs; a situation in which the spirit and content of the Charter are completely negated; by which segments of the world comprising millions of women and men are terrorized and victimized, and become witnesses to acts of barbarity. What kind of rapid and decisive intervention must we adopt in order to protect human rights? Thank you for joining us and enriching our discussion. I look forward to a fruitful session.
Thematic Cluster 1 — Non-state Actors and Human Rights Chair: Razmik Panossian, Director of Policy, Programmes and Planning, Rights & Democracy Lead Discussant: Ann Jordan, Director, Global Rights Who are non-state actors? We are referring to a number of different actors, some with the power to protect human rights and others with a propensity to violate them. Nonstate actors range from multinational corporations, to international organizations and non-governmental organizations (NGOs). These nonstate actors are subject to some degree of control or regulation by states. There are also armed groups, organized criminal gangs and terrorist organizations that operate beyond the control of states.
In the past, the approaches to human rights tended to focus exclusively on the responsibilities of the state. However, as society and the economy have evolved and other actors have more influence and power, states cannot be seen as the sole promoter and protector of human rights. Furthermore, as human rights inherently benefit the individual, they cannot become the exclusive domain of the state. International law has gradually evolved to recognize the responsibilities of some non-state actors, such as in the treaties against slavery and February 16, 2006 11 against genocide, or in the Universal Declaration, which affirms the responsibilitiesof individuals towards other individuals and their community. While not ignoring the fact that states have bear a fundamental responsibility for human rights, we see the emergence of a new paradigm that will include non-state actors in the matrix of human rights promotion and protection. This evolution of the norms and policies of human rights is necessary in an era of globalization, transnationalism and of failed and fragile states.
This raises, however, an important question. While we may wish that certain non-state actors acted more responsibly, is it strategic to give them formal responsibilities under international law? Or does this imply, conversely, that we must cede them more rights? In the case of transnational corporations, we have already seen that they have tremendous influence and negotiating power in relation to governments, particularly in developing countries or in countries with failed or corrupt states. Currently, there is an important process in place to develop international norms with respect to multinational corporations and human rights within the United Nations system. They set out some proposed norms (e.g. elimination of discrimination in the workplace, elimination of forced labour and environmental protection) in the spheres of activities where the power and control of corporations overlap with that of the state. Although these norms are progressive, they have yet to be formalized and are therefore dependant on the voluntary compliance of corporations.
The evolution of human rights protection can be examined both “vertically” (evolution of new norms from the international community down to various actors) and “horizontally” (evolution of norms at the national level, using existing tribunals and adapting existing laws and regulations). In terms of the evolution of human rights norms at the national level, the Canadian experience under the Charter of Rights is informative; and, the constitutional protection of human rights in the national context is an important focus for concrete implementation. In addition, we should look at existing international tribunals, which can take action in serious cases of human rights violations, as did the Security Council regarding transnational corporations in the Democratic Republic of Congo. This increasingly seems to be the case in terms of the scope and reach of international criminal law. 12 Emerging Human Rights Issues
To help our partners in developing countries make use of these instruments, we should look at creating a fund to finance international human rights litigation. Eventually, however, to ensure that there are no gaps in protection, we would perhaps need a World Court of Human Rights. Moreover, it is important to remember that the movement towards greater accountability of non-state actors is not just in the domain of legal experts. We should therefore not forget efforts for human rights education in all spheres of society.
One particularly important target group for educational and promotional efforts in the field of corporate accountability is the investors who are able to put real pressure on corporations to change their behaviour. Also, corporations themselves can be targeted with useful tools and methods that allow them to conduct “human rights impact assessments” of their operations. Other such targets are banks and export development agencies. Also, human rights experts should not forget their need to reach out to parliamentarians, who have the interest in and the power to promote human rights and corporate accountability.
Despite the opposition of the business community, the movement towards having binding legislation to make corporations more responsible and accountable is essential; otherwise a great number of human rights violations will remain outside the purview of the law. In this regard, it is important to follow the work and recommendations of the Special Representative on Human Rights and Transnational Corporations and other Business Enterprises. Broadly speaking, we must reflect on the need to strengthen international law in an era where borders are becoming increasingly porous and meaningless.
This leads us to the role of international organizations and institutions such as the World Bank, the International Monetary Fund and the United Nations. These organizations are players who also wield power over the lives of individuals, particularly in terms of their social and economic rights. Despite the impact that their decisions have—both positive and negative—the multilateral financial institutions have refused in the past to explicitly address human rights as part of their mandates. That said, recently there have been some interesting debates within the World Bank, where its legal opinions are beginning to consider the possible obligations of the Bank itself. Furthermore, it is important to reflect on the democratic governance of these institutions, to ensure that their decisionmaking is more accountable to populations. For example, some EuroFebruary 16, 2006 13 pean countries such as the Netherlands ensure that their representatives at the World Bank receive a specific mandate from Parliament.
While the United Nations has made human rights one of its pillars, it can also be criticized for violating human rights in the context of some of its peacekeeping operations. This is a complex question, as we must also balance shameful incidents involving individual peacekeepers against the need for peacekeeping operations to safeguard the rights of entire communities. Nevertheless, the UN seems to be taking this matter more seriously, for example in the case of Nepalese peace-keepers. When speaking of these multilateral institutions, should they be more attentive to human rights since they are created, financed and controlled by states that have, in turn, ratified international human rights instruments? In terms of multilateral institutions, one promising area can be found among the various regional organizations whose mandates are directly related to the promotion and protection of human rights. These are institutions that merit greater support.
Similarly, we can ask about the role of other non-state actors (churches, NGOs and other organizations), which have stepped into the traditional role of the state by offering necessary services. Extreme examples of multilateral institutional work are the jobs being done by sub-contractors that run prisons or participate in military operations abroad. Some of these sub-contractors simply are moving mercenaries from one conflict situation to another, taking military personnel trained in one country and deploying them elsewhere for no motive other than money. These mercenary groups are often working in concert with multinational enterprises, often in the resource extraction sector, such as in the Great Lakes Region of Africa.
As for looking at future actions to address these issues, it is to be noted that a new working group on mercenaries has been created at the United Nations. Also, given the negative link between mercenaries and long-term peace and security, this issue can certainly be addressed by the new UN Peacebuilding Commission.
Although we should give them the benefit of the doubt, it is necessary to cast a critical regard on NGOs. This is a very large and diverse group of non-state actors. Some of them are very effective and transparent, but others must be held more accountable for their actions. Also, we must recall that the financial capacities of most NGOs are quite limited; there14 Emerging Human Rights Issues fore, their individual actions may be insufficient to tackle some of these issues.
That said, some promising areas for promoting human rights lie in the new networks being created. Sometimes they exist between NGOs, but other times they also include states and corporations. We should not ignore these “win-win” partnerships, because relations between state and non-state actors do not always have to be antagonistic. A good example of the power of networks was the negotiation for the International Criminal Court. In developing networks for human rights, we should pay further attention to including Southern partners and help foster South-South networks. The churches offer good examples of well-developed networks with strong Southern linkages. The actions and advocacy of these networks are required. They serve as a welcome antidote to the generalized lack of political will seen today, with respect to human rights on the international scene.
Potential Follow-up Actions Some of the potential follow-up actions with respect to this issue are the following: • Continued support in the development of international norms, with respect to non-state actors. In this regard, it will be important to examine how the new Human Rights Council can continue to work towards binding norms, with respect to transnational corporations, mercenaries and other groups. • Development of practical tools to promote corporate accountability. For example, Rights & Democracy is currently developing a Human Rights Impact Assessment methodology for the activities of corporations in developing countries, while the Danish Institute for Human Rights has developed a checklist to help corporations assess their policies and practices in terms of human rights. • Seek opportunities to engage the investor community and other stakeholders in educational and promotional activities to increase corporate accountability. A significant opportunity exists in the coming months in relation to the series of roundtables that are being or February 16, 2006 15 ganized in five cities across Canada. The roundtables will look at the role played by extractive industries in developing countries.
• Seek opportunities to engage parliamentarians on these issues. In this regard, one opportunity will be a series of consultations that Rights & Democracy will undertake in partnership with the Canadian Law Commission on its study of Law in a Globalized World, which discusses inter alia (a) the legal regime for controlling the actions of Canadian individuals and corporations overseas; and (b) the democratic accountability mechanisms for negotiating and implementing Canada’s international obligations. Two of these consultations will be designed for federal parliamentarians in Ottawa and for members of the National Assembly in Quebec.
• Follow the work of the new UN Peacebuilding Commission, as it addresses the roles and responsibilities of non-state actors in conflict situations. • Support for litigation and advocacy in national, regional and international tribunals in order to allow victims of human rights violations to seek justice and reparation from non-state actors. This process will further support the development of legal norms within the arena of non-state actors and human rights. • Support for new networks between the North and South, as well as between NGOs, corporations and governments. In this regard, Rights & Democracy is supporting the creation of a Canadian consortium that will launch a Millennium Youth Campaign. Part of its work will be to help create a global coalition for international development and human rights.