Statement by Navanethem PillayUnited Nations High Commissioner for Human RightsHuman rights diplomacy: An oxymoron?

Cambridge, Massachusetts, 28 October 2009

 

Ladies and Gentlemen,

 

I am very pleased to be here today and to speak again at my US alma mater. My address is entitled: “Human Rights Diplomacy: An Oxymoron?” I hope that I will manage to inspire many of the students here to take up human rights advocacy, on a pro bono basis if you pursue other career paths in the legal profession.

 

As both a former judge and a former activist I have alternated between the deliberate pace of legal proceedings and the passion of public advocacy. As High Commissioner for Human Rights, I pursue both. I am also finding my way through a third course of action, which is private diplomacy. Unlike legal proceedings and public advocacy, diplomacy often takes place behind the scenes. It is a powerful tool, but often its power is not visible. Today I want to share with you a few preliminary reflections on the role of diplomacy in the protection and promotion of human rights.

 

Last year we celebrated the sixtieth anniversary of perhaps the greatest achievement of human rights diplomacy, that is, the Universal Declaration of Human Rights. We look back with admiration at the determination that led to the formulation and adoption of the Universal Declaration in 1948. All too often, however, we underplay the intense negotiations, the well-honed diplomatic skills, the hotly debated options and quietly found compromises, and ultimately, the intergovernmental efforts and willingness to find common ground that ultimately sustained international agreement on the Declaration. 

 

Since then, human rights diplomacy has pursued two very different, but mutually reinforcing paths: on the one hand, we have witnessed the development of international law through which States willingly assumed human rights obligations and the formulation and continuing expansion of a system of human rights monitoring including by treaty bodies, special procedures mandate holders, complaint procedures, and now the Universal Periodic Review procedure of the Human Rights Council. On the other hand, we have seen the growth and impact of the international human rights movement, which through committed advocacy has often been instrumental in pressing recalcitrant governments to embrace in law, and implement in practice, internationally recognized human rights principles. 

 

At times, this advocacy has been conducted behind the scenes by civil society groups, including human rights defenders and international organizations, as well as through the peer pressure of sympathetic governments. This quiet diplomacy operates on the principle of engagement, with persuasion and sometimes the prospect of more public advocacy as its primary tools. 

 

Sometimes human rights nongovernmental organizations and other champions of the human rights cause have adopted a highly visible strategy of “naming and shaming” those who commit human rights violations. Some would regard this strategy and diplomacy as antithetical. But there is no doubt that exposing human rights violations and calling perpetrators to account publicly has produced remarkable results, often engendering positive change both domestically and internationally. Public advocacy can work independently of or in tandem with quiet diplomacy, as well as with judicial and quasi-judicial human rights mechanisms.

 

To better put into context how human rights diplomacy in all its articulations has developed in the last few decades, allow me to discuss briefly the historical background that shaped it. The end of the cold war in the early 1990’s had fuelled hopes for a “gentler, kinder” world in international relations. Yet subsequently, in fact within a mere three-year span, war in the former Yugoslavia, in Somalia, and the Rwandan genocide in 1994 shattered those hopes.

 

The 1990s was also the decade that witnessed a radical transformation in the conduct of war, and indeed the “privatization” of conflict. Rather than confrontations among States, most of the so-called small wars of the decade were marked by the violent internal competition between either State forces and well-armed rebels, or conflict between different militia of non-state actors in control of large swaths of territory, natural resources and weapons. The suppliers of weapons and the beneficiaries of profits from natural resources fuelling some of these wars were also private individuals or businesses that were callously unconcerned with the human rights record and the rapacity of their customers. Tragically, the victims of these conflicts were increasingly also “private” individuals, civilians caught between the contenders or deliberately targeted by belligerents. Widespread, gross and systematic human rights violations recurred in virtually all of these conflicts. Crimes against humanity, ethnic cleansing, war crimes and even genocide also tragically marked that decade.

 

But these were also the years in which large-scale humanitarian and human rights-oriented advocacy campaigns led by like-minded States, international organizations and nongovernmental activists were launched in response to the atrocities. Such campaigns included the movement to ban landmines and the use of child soldiers, and to control the misuse and proliferation of small arms and light weapons. At that time, the framework for international justice developed significantly, with the creation of the tribunals for the former Yugoslavia and Rwanda, and ultimately with the campaign that led to the establishment of the International Criminal Court. I was privileged to serve in the Rwanda Tribunal and the ICC, in both cases from their first days of infancy, thrown into action and trying desperately to meet the great challenges and high expectations surrounding their creation. And it is well-known that these groundbreaking advances in international criminal justice are largely due to the efforts of civil society.

 

It is against this background that the post of the High Commissioner for Human Rights was created in 1993, much as a result of public human rights advocacy at the Vienna World Conference on Human Rights, and since then the Office of the High Commissioner has progressively expanded its operations. With regard to diplomacy, our efforts have unfolded both “internally” and “externally”; both proactively and reactively; both publicly and quietly; and both as a stand-alone outreach strategy and in partnership. 

 

As you probably know, human rights are enshrined in the UN Charter as a fundamental purpose of the organization. Every department and agency in the UN system has its own unique mandate and focus, but all share a stated commitment to common values, including human rights and gender equality. The World Summit of 2005 articulated the need to promote human rights, development and security simultaneously. Embracing such recognition, in the same year the World Summit doubled the OHCHR budget empowering us to expand our areas of intervention and strengthen our ranks and advocacy. 

 

Indeed, we have come a long way in terms of mainstreaming human rights within the UN system. There has been notable progress in the peace and security pillar, in terms of human rights components of UN integrated missions for peacekeeping, and in the emergence of the “responsibility to protect” doctrine from the 2005 World Summit which enjoins States to protect civilians from the worst abuses. When the concept of responsibility to protect was first enunciated against the backdrop of the Rwandan genocide and the war in the former Yugoslavia, there was widespread reluctance to embrace it. Doubts were raised about the legitimacy of the ways and means of external intervention to be carried out, possibly against the wishes of a sovereign State. Objections, however, could not persuasively counter the inherent soundness of this concept which is anchored in the fundamental notion of civilian inviolability. As a result, the concept continued to make significant inroads in international thought, and it was finally endorsed by the World Summit. Norms and pledges, however, are good only if their full implications are understood and effectively applied in practice. There is no doubt that the full potential of the protection norm is still far from being realized. In that doctrine UN institutions have an important role to play, in interpreting and applying the norm, and in helping States to discharge their responsibility.

 

Increased interaction with the UN Security Council is of vital importance to promote and protect human rights. In particular, it is crucial that the Security Council— in its efforts to prevent conflict, re-establish peace and security, guide peace negotiations and post-conflict peace building and recovery processes—envisages the effective integration of the protection of human rights in all phases of a transition. These phases span from peace negotiations to the restoration of normalcy, to the creation of institutions and the provision of justice. In this regard, OHCHR has assisted and will continue to support the efforts of the international community.

 

Equally important is progress in the development pillar in order to build capacity and effective institutions on the ground. This requires a committed and far-sighted active engagement by all concerned partners. An increasing number of agencies have adopted human rights-based approaches and integrated human rights into their policies and programmes. In so doing, they have brought a sharper focus on human rights into UN-supported national development efforts, and are thus better equipped to understand the needs and rights of the most marginalised and excluded. The recent food, financial and economic crises starkly highlighted the critical vulnerabilities that stem from violations of human rights, including economic, social, and cultural rights.

 

Many if not most of the UN Development Assistance Frameworks developed by UN country teams and endorsed by the respective Governments in recent years have reflected ‘nationally owned’ and internationally recognised human rights to maximize results. Program implementation has also benefited from the adoption of a human rights-based approach, particularly with regard to the attainment of economic, social and cultural rights, including access to food, water, housing, health and education. While progress remains uneven, these achievements deserve recognition.

 

To be sure, the universal membership, multilateral character, neutrality and legitimacy of the United Nations provide unique comparative advantages in this field, helping to address recipient countries’ fears that human rights are merely another form of donor ‘conditionality.’

 

But in all honesty I must tell you that this mainstreaming of human rights is not always easy. I am often astonished at the resistance to and fear of human rights. From the Security Council to the UN Country Teams that operate on the ground, there is an ongoing reluctance to embrace human rights mainly driven by perceived need to accommodate the sensitivities of member states. We must address this head on if we are to make significant progress.

 

A potentially invaluable vehicle for the enhancement of UN synergy is the Human Rights Council, which is the intergovernmental body created in 2006 as a successor to the Commission on Human Rights, which had attracted growing criticism. The Council is virtually a standing body. The frequency of its meetings—both in formal and informal gatherings—may thus create more opportunities to better hone operations and responses to both chronic human rights conditions and sudden crises. This may also help to build a firmer ground of understanding among the Council’s members than sporadic or less frequent interactions allowed for. An example of this added value is offered by the thematic and country-specific special sessions of the Human Rights Council, which help throw a timely light on situations of concern. 

 

Crucially, the new Universal Periodic Review of the Human Rights Council, designed to examine the human rights record of all States, seeks to overcome the perceived selectivity and regional confrontations of the former Commission on Human Rights when considering national human rights situations. As the experience of the review has shown, States have conscientiously prepared their national reports through broad consultations with relevant stakeholders, including civil society. To date, 80 States have been reviewed. As result of this process, various countries under review firmly pledged to strengthen implementation of human rights standards at the national level, as well as their cooperation with human rights mechanisms. If used effectively, the UPR can help address implementation gaps and contribute to building capacity on the ground.

 

My Office services the human rights mechanisms, such as special procedures and human rights treaty bodies. The former are entrusted to examine, investigate, monitor, advise and publicly report on human rights situations worldwide. Through their direct contacts with Governments, their public statements, their reports to the Human Right Council and to the General Assembly, as well as informal briefings, the special procedures experts can offer invaluable information for identifying both preventive and corrective measures to address situations of concern and enhance practical implementation strategies on the ground. Through their recommendations, the treaty bodies provide states with guidance for national implementation of their obligations. Their work, including general comments on various provisions of the treaties, is also used by courts and other judicial bodies in the development of jurisprudence on international human rights law, as well as providing important substantive information for consideration in the UPR process.

 

It is easy to get caught up in the world of the United Nations, yet I believe that we must always be guided in our priorities and all our efforts to promote and protect human rights by conditions on the ground, where violent conflict, discrimination, poverty, injustice and repression persist in too many parts of the world. Indeed, no country can claim a spotless record on human rights. Moreover, long-standing or emerging global problems, such as climate change, epidemics, shortages of resources including water and food, as well as the current financial crises and economic recession compound situations of entrenched vulnerability and hardship that preclude the full enjoyment of rights. The measure of our success in my view is the difference we make in the lives of women and men around the world.

 

In my current role as High Commissioner for Human Rights, as I mentioned earlier, I am now called on to be a diplomat and to use the power of diplomacy to further human rights. I find myself often in a highly politicized context that contrasts starkly with my experience as a judge. I have carried over into my diplomatic endeavors all my judicial instincts. I do not rank rights and I use my office as a venue where everyone will be given a fair audience. I have called publicly, repeatedly, for a single standard of human rights to which all states should be held equally accountable. In the United Nations this is a challenge, but as I believe that the credibility of my Office depends on impartiality, I believe the credibility of other human rights undertakings similarly depends on impartiality. What I find is that when you move from treaty bodies, comprised of experts serving in their individual capacity, to bodies such as the Human Rights Council, comprised of political representation, ensuring that political considerations do not enter into the dialogue is a great challenge. 

 

It certainly helps to have a system such as the Universal Periodic Review, which ensures that each country will be examined, but I have seen some countries undergoing review stack the list of speakers in their support. In contrast, some states have welcomed the opportunity to openly discuss their internal challenges as well as their achievements, and I am hopeful that their vision of this review process ultimately prevails. In this context there is much room for quiet diplomacy.

 

A case in point, and in fact a case-study, in such human rights diplomacy was the review conference against racism, racial discrimination, xenophobia and related intolerance which took place in April 2009 in Geneva. The conference wrapped up with wide agreement in which 182 States undertook to prevent, prohibit and respond to all manifestations of racism and intolerance. But such consensus was hardly a foregone conclusion. A number of voices advocated a boycott of the review conference for well over a year, long before a single word was put to paper. This opposition was for the most part based on fears that the Geneva meeting would trigger a repetition of the virulent anti-Semitic activities of some non-governmental organizations at the margins of the 2001 World Conference in Durban. The odious actions of a few had tainted the reputation of the entire process from Durban in 2001 to the conference in Geneva in 2009. In the end, ten UN Member States, including the United States, decided to stay away from the Geneva gathering which the UN General Assembly had called to review the implementation of the Durban Declaration and Programme of Action, the final document of the 2001 conference. 

 

From the outset, rather than focussing on the surrounding political controversies, my Office sought to engage all Member States by providing technical input and specific proposals. These were grounded in the well-established jurisprudence and practice of human rights mechanisms, such as Treaty Bodies and Special Procedures. At the same time, we began a wide range of consultations to gather the views of governmental and nongovernmental interlocutors, at the national, regional and international level. We did so at each and every phase of the drafting, negotiating and the deliberating processes involving the outcome document, the final say of the review conference. My Office played a role in facilitating resolution of the difficult issue of “defamation of religion” by organizing a workshop six months before the conference to look at the provisions of the Covenant on Civil and Political Rights, Articles 19 and 20 on incitement to racial hatred, as an alternative framework, based on international law, a framework that ultimately prevailed and was adopted in the Outcome Document.

 

We also honed and stepped up our communications strategies by reaching out to wider audiences and empowering them to be informed and have a say well in advance of events. Our communications strategy succeeded because it was intrinsically linked to our substantive initiatives and was effective in countering misinformation. We also offered victims opportunities to speak directly of their plight and thus inform the general public. Nongovernmental organizations were given a credible, open and democratic platform to express their views with zero tolerance for disrespectful outbursts. Despite some isolated instances of intemperate behaviour on the part of a handful of NGOs, there was no repetition of the odious slurs and confrontation that had marked the Durban conference. 

 

In the end, the Durban Review Conference provided a platform for a new beginning. The few States that chose to stay away should now evaluate the Outcome Document adopted by the conference on its own merit and substance. Many of these States participated in its drafting and were part of the emerging consensus up until the very eve of the conference. This is why I am hopeful that they will rejoin international efforts to combat racism and intolerance worldwide.

 

Let me conclude by saying that I have found diplomacy to be an effective and for me a new component to what is I believe a more holistic approach to human rights protection. In addition to building a rapid response capacity for human rights crises, which may often require public advocacy, I think much more can be done to develop a long term prevention strategies that include a focus on the institutional capacity of states to respond when human rights are at risk. I am a firm believer in speaking out. I have and will continue to speak out strongly against human rights violations wherever they occur. At the same time, in my capacity as UN High Commissioner for Human Rights, I look forward to greater dialogue and engagement with states, and will do my best to master the art of diplomacy to this end.

 

Thank you.