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17 August 2000
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Subcommission on the Promotion
and Protection of Human Rights
52nd session
17 August 2000
Morning
The Subcommission on the Promotion and Protection of Human Rights approved a series of resolutions and decisions this morning relating to economic, social and cultural rights, implementation of human rights with regard to women, and the Subcommission's own methods of work.
In a resolution on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement of the World Trade Organization, the Subcommission charged that implementation of the agreement did not adequately reflect the fundamental nature and indivisibility of all human rights, including the right of everyone to enjoy the benefits of scientific progress and its applications, the right to health, the right to food, and the right to self-determination, and said there were apparent conflicts between the intellectual property rights regime embodied in the TRIPS agreement and international human rights law. It requested the World Trade Organization and the Council on TRIPS during its ongoing review of the TRIPS agreement to take fully into account existing State obligations under international human rights instruments.
In a resolution on traditional practices affecting the health of women and the girl child, the Subcommission appealed, among other things, to all States concerned to intensify efforts to develop awareness of and mobilize national public opinion concerning such harmful practices, in particular through education, information and training, in order to achieve total eradication of these practices.
The Subcommission additionally sought permission from the Commission on Human Rights to hold next year a pre-sessional or intersessional forum on economic, social and cultural rights, to be known as the Social Forum, for three days, with the participation of 10 Subcommission members.
In other action, the panel of 26 human-rights experts recommended a draft decision to the Commission on Human Rights that would authorize the Subcommission to convene its working group on the administration of justice for two days prior to its session next year.
It recommended to the Commission that it authorize the Subcommission to appoint Subcommission Expert El-Hadji Guisse as Special Rapporteur to conduct a detailed study on promotion of the realization of the right to drinking water and sanitation.
And it suggested that the Commission establish an open-ended working group entrusted with further study of a draft optional protocol to the International Covenant on Economic, Social and Cultural Rights.
Earlier in the morning the Subcommission completed debate under its agenda item on "review of further developments in fields with which the Subcommission has been or may be concerned", which covered such topics as national, regional and international efforts for human rights; elimination of religious intolerance; encouragement of universal acceptance of human rights instruments; implications of humanitarian activities for the enjoyment of human rights; terrorism; peace and security as an essential condition for the enjoyment of human rights; human rights and disabilities; human rights and scientific and technological developments; the adverse consequences of the transfer of arms and illicit trafficking in arms; and arbitrary deprivation of nationality.
Representatives of the following non-governmental organizations contributed to the discussion: the World Federation of Mental Health, Interfaith International, Pax Romana, the General Arab Women Federation, the International League for the Rights and Liberation of Peoples, the Movement against Racism and for Friendship among Peoples, and the International Human Rights Association of American Minorities.
Representatives of the national delegations of Italy, India, Turkey, Pakistan, Angola, Saudi Arabia, and Belarus addressed the meeting.
And the United States, Iraq, India, and Pakistan exercised their right of reply.
Subcommission Experts and Alternate Members El-Hadji Guisse, Kalliopi Koufa, Francoise Jane Hampson, and Vladimir Kartashkin spoke.
The Subcommission will reconvene at 3 p.m. to continue action on draft resolutions and decisions.
Review of further developments infields with which the Subcommission has been or may be concerned
WILDA SPALDING, of the World Federation of Mental Health, said the shorter session of the Subcommission had had a bad effect on the physical and mental health of participants in this meeting. People with mental disabilities were largely ignored by the activities of the UN system. People with disabilities had consistently urged the creation of an Office of Ombudsman as a non-confrontational method of resolving issues related to them, but the matter was barely even referred to in recent Commission on Human Rights resolutions and was never mentioned in papers or reports issued through the UN offices in New York. Even in times of fiscal impact and cutback, some expenses were justified.
The Subcommission, meanwhile, should submit most urgently its concerns that remedial action be taken to return to a four-week session.
KASHINATH PANDITA, of Interfaith International, said that for more than a decade, the fascists had been perpetrating crimes of genocide in Kashmir. A cover for legitimizing these brutalities had been found in the slogan of struggle for freedom. These barbaric killers had a method in their madness and whenever a step was taken for dialogue, they sabotaged the attempts with the backing of external sponsors. The killings were a blatant act of international crime. Peace had to be found, but it could first be found in the minds of people. The Subcommission was urged to pay attention to this conflict and to hear the pleading of the suffering people.
JOSEPH RAJKUMAR, of Pax Romana, said communities had to be protected from violence; it had to be emphasized the security began with prevention. Globalization was eroding the traditional powers of the nation State, yet the first duty of States remained prevention, which applied to human rights as well as peace. The right to self-determination also deserved greater attention; after its thirty-first session, the Subcommission had not done any work on the right to self-determination. There were complex interconnections between self-determination, democratization, and human rights. In its broad sense, self-determination was rooted in the fundamental human impulse to be free and to construct alliances and political communities based on this desire.
Pax Romana urged the Subcommission to elaborate a working paper, without financial implications, on the implementation of the right to self-determination as a contribution to international peace and security. It should include an internal colonization context.
JULIET SAYEGH, of the General Arab Women Federation, said the Federation was against the sanctions imposed on the people of Iraq. Scientific reports had confirmed that depleted uranium caused short-term and long-term medical harm to men, women and children. The inhuman health effects of the weapons could continue for several decades. One had to question why these weapons had been used in Iraq, Serbia and Kosovo. The illnesses reported were similar across these regions. There were already severe health issues and problems in Iraq, due to the embargo and the daily bombings. The use of the depleted uranium led to cancer and genetic defects. There was no infrastructure in Iraq to attend to these severe illnesses. The use of depleted uranium and the continuation of the embargo were grave violations of human rights. The Subcommission was urged to give this issue a high priority.
VERENA GRAF, of the International League for the Rights and Liberation of Peoples, said Mrs. Koufa should be provided with the necessary support to pursue her study on terrorism; terrorism could not be condoned, and no effort should be spared to eradicate it. But the Subcommission must reflect on terrorism's root causes. Most people resorted to violence because they were denied their rights and claims or were not heard or addressed; and often the international community had been a sort of accomplice to the onset and persistence of unjust conditions involving peoples.
The Subcommission's attention was called to a tentative proposal for what could hopefully be a first step towards a peaceful settlement in the Basque country which was contained in the document (E/CN.4/Sub.2/2000/NGO/4). More attention should be given as well to the situation in the Moluccas, where peace and security were clearly a vital condition for the enjoyment of human rights. An on-site fact-finding mission was the least the international community could to for the Moluccas.
GIANFRANCO FATTORINI, of the Movement against Racism and Friendship among Peoples, said that controlling the spread of small arms and weapons was essential for international stability. The proliferation of small arms was in direct contradiction to the protection of life, in fact small arms were responsible for the most amount of losses of lives. The proliferation of small arms was a serious problem as there existed very little regulation and control. Much of the United Nations system was dealing in one way or another with the result of the proliferation of small arms and weapons. One serious challenge was to stop the human rights violations which occurred as a result of the proliferation of these arms. The transfer of these weapons led to wars, unrest and terrorism. There was a need to call on the Member States of the United Nations to take action and halt the proliferation of small weapons.
MICHAEL LERFORD, of the International Human Rights Association of American Minorities, said indigenous groups had been excluded from participating in the development of the now colonial state of Alaska in the United States; it had been ruled that the indigenous peoples of Alaska had no Fifth Amendment rights -- that was, no right to life, property, due process of law, etc. This was the basis for the creation of the Alaska Native Claims Settlement Act. These actions constituted racial apartheid.
Sovereign traditional rights of aboriginal peoples also should be upheld; and aboriginal peoples asserted their right to be free from legal and territorial interference in their lives.
ANDREA NEGRETTO CAMBASO (Italy) said that there was no need to dwell on the link between the proliferation of weapons and the violation of human rights, the link was clear. The was a close link between disarmament and development, and all States had to take this on board. References to confidence-building measures and to regional arms control agreements were being made increasingly in different fora. Why was it that only Europe benefited from such regional all-encompassing measures of arms control. The implications had direct bearing on the protection of the right to life and the right to development, especially in developing countries affected by situations of conflict. This was even more true when it came to illegal arms trading. The Subcommission, in making in-depth examinations of human rights, needed to take this into account and mainstream cultural backgrounds or political realities, outside political polemics, in order to better come to grips with threats to human rights.
R. N. PRASAD (India) said terrorism posed one of the most serious threats to human rights. Terrorist acts violated the most important right of all -- the right to life -- and impinged on all other human rights. India believed that there was an urgent need for a comprehensive study on the impact of terrorism especially as the debate remained inconclusive, partly because of the misleading propaganda of the State and non-State actors who sought to conceal their violent agendas behind the lofty principles of "self-determination" and "freedom struggle".
Mrs. Koufa should be allowed to carry out her study on terrorism as soon as possible, as terrorism was totally at odds with democratic and liberal societies. India had been the victim of terrorism aided and abetted by a neighbouring country, which nurtured territorial ambitions against the Indian state of Jammu and Kashmir. India strongly supported negotiations on a comprehensive international convention on terrorism.
BULENT MERIC (Turkey) said terrorism was not only a criminal phenomenon, it violated human rights such as the right to life and development. There was a clear link between combatting terrorism and the protection and upholding of human rights. It was regretted that the Subcommission was behind schedule. It was worth looking into this delay. The Subcommission should give the Special Rapporteur the help she required to complete her work. It was difficult to understand the lack of support given to the Special Rapporteur. The Office of the High Commissioner for Human Rights was urged to provide immediate assistance.
Today, individuals and groups also had a responsibility in the promotion of human rights. The Subcommission had been playing a leading role in this regard and Turkey supported this development.
IMTIAZ HUSSAIN (Pakistan) said his country was disappointed about the delay of the study on terrorism and would support Mrs. Koufa in her efforts to carry it out. A definition of terrorism was needed; absence of a definition had allowed States committing aggression and indulging in acts of foreign occupation and alien domination to label those fighting against the occupation as terrorists. Terrorism needed to be distinguished from legitimate armed struggle against foreign aggression and occupation as well as for the right to self-determination and acts of self-defense. Such criteria should be included in a working definition of terrorism.
Terrorism was identified as a major threat to democratic and pluralist societies, and Pakistan shared that perception. But you could not have a democratic and pluralist society in a territory occupied by a foreign power by military force; in fact such acts amounted to State terrorism, and States unleashing such campaigns should not be allowed to claim they were curbing terrorism.
JULIA DE ASSUNCAO CIPRIANO MACHADO (Angola) said that the Republic of Angola gave a priority to the topics which had been dealt with in this session of the Subcommission. Terrorism was a phenomenon which constituted a threat to the peace and territorial unity of the State. It threatened the Constitutional order and the rule of law. Contemporary terrorism could be distinguished from traditional terrorism, as it consisted of new kinds of violence through the advances in technology. In the new political and economic conditions, contemporary terrorism posed a real threat to international stability and the protection of human rights. The linkage was a complex matter, areas of consensus were so far only found in the definition of terrorism. Despite the absence of consensus on further related issues, it had to be pointed out that the initial resolution on terrorism had categorically rejected all forms and expressions of terrorism. The efforts of the international community in the fight against terrorism had to be strengthened by preventive mechanisms, on a national, regional and international level. These were common concerns, yet no practical measures had been taken in reducing military expenditure or disarmament. Even developing countries spent on average three times as much on arms than on education. It was time to adopt adequate measures through the United Nations, which was mandated to promote peace and security, and through the implementation of legal mechanisms.
TORKI AL MADI (Saudi Arabia) said the planned study on reservations to human rights treaties had not been appropriately considered and framed by the Commission; any future study on the matter should relate to and reflect the standards set by the International Law Commission and adopted by the General Assembly. The Vienna system was flexible and applied to all categories of treaties, including human-rights treaties. If the drafters had wanted to distinguish between human-rights and other treaties, they would have done so.
Further, any possible prejudice against the Vienna system would certainly lead to prejudice against other conventions, including human-rights conventions. Rules were made to be followed. Human-rights treaty bodies should clearly abide by their mandates. Where the mandates were not precise, the matter of reservations to treaties should not be questioned by those bodies. It also was important not to have duplication of work in the UN system.
DMITRY MIRONCHIK (Belarus) said the Byelorussian Government had undertaken several measures in order to ensure that the parliamentary elections to be held in October were free and fair. Among these actions was access of all political parties to equal air time on the national media, and participation in elections of all those wishing to take part in them. This was a period of trust. There had been an expansion of parliamentary functions, which would be included in the newly elected parliament. This was an objective necessity.
Rights of reply
A representative of the United States, speaking in right of reply, said the working paper on the effects of sanctions, and in particular its case study of UN sanctions against Iraq, was incorrect, biased, inflammatory and risked the credibility of the Subcommission. The paper mischaracterized the purpose of the sanctions and misrepresented the intentions of senior U.S. officials. The U.S. had worked hard to ensure that the welfare of the Iraqi people was protected, in stark contrast to the appalling behaviour of a brutal Iraqi regime which was completely indifferent to the suffering of its own people. Iraq itself controlled the duration of sanctions. Iraq could end the sanctions by complying with UN resolutions, which were based on international law. The sanctions were related to Iraq's naked aggression against a neighbouring State. If the oil-for-food programme was allowed to operate free from barriers set up by the Iraqi regime, it could provide for the well-being of the population.
A representative of Iraq, speaking in right of reply, said the United States delegate had spoken of the well-being of the Iraqi people which seemed inappropriate as the U.S. was responsible for the killing of Iraqis. A whole population was being destroyed. The Iraqi delegate referred to the May 1996 interview with Mrs. Albright where she had stated that the death of half a million Iraqi people was worth it. It was questionable if even the Nazis had said or admitted to such immorality as Mrs. Albright. This was an era of communications, and the U.S. delegate could be supplied with ample amounts of information as to the suffering of the Iraqi people through a simple phone call.
A representative of India, speaking in right of reply, said Pakistan had defended its deep involvement in terrorism in Jammu and Kashmir by calling it aiding a "freedom struggle". In fact, Pakistan was one of the world's leading exporters of terrorism. Pakistan was dotted with training camps producing terrorists of all hues. The Indian democracy was faced with a difficult problem, but it had the strength and would confront the challenge of terrorism.
A representative of Pakistan, speaking in right of reply, said the delegation had tried to give a realistic view of how terrorism should be handled. It took strong exception to the direct and twisted attack on Pakistan. A few authentic sources had stated that there were human rights abuses by the Indian security forces in Jammu and Kashmir. These forces functioned outside the normal army and carried out questionable orders. Since early 1985, India had been making use of State sponsored military peoples without accountability, to intimidate and harass. Jammu and Kashmir was a disputed area and Pakistan would continue to provide objective and diplomatic information.
A representative of India, in a second right of reply, said the Pakistani magazine Newsline of March 2000 said the Pakistani Government was supporting militant groups in the Kashmir Valley. How long would Pakistan continue to try to pull the wool over the eyes of the world in a futile effort to disguise its immense involvement in terrorism?
A representative of Pakistan said in a second right of reply that when it came to quoting, he himself could provide more from Indian newspapers. There were credible international organizations which could be quoted as well. Pakistan had been blamed for the massacre in March 2000, however the Indian security forces had known about it but done nothing about it.
EL-HADJI GUISSE, Subcommission Expert, said the problems focused on by studies under this agenda item affected the security of everyone and related closely to the application of international instruments. Reservations to these instruments had up to now been detrimental to their application. The objectives the study on economic sanctions was striving towards deserved support, despite the criticism directed at the study. The Special Rapporteur should continue his work along its current directions.
MARC BOSSUYT, former Subcommission Expert and Special Rapporteur, said that he appreciated the responses from the Subcommission Experts and the non-governmental organizations. He had seen that much interest had been paid to the sanctions on Iraq. Mr. Weissbrodt had said that the report said the sanctions represented a genocide, but it had actually said that questions could be raised under the topic of genocide. He fully agreed that the sanctions at the time of implementation had been legal. However, it seemed that the sanctions agreed upon could not just continue for 10 years or even 40 years later without being discussed. Especially when the adverse effects were flagrant. This was a gross political error. Today, it was Iraq which was suffering from human rights violations through the sanctions. Two wrongs did not make a right.
KALLIOPI KOUFA, Alternate Subcommission Member, said she was grateful for the references to the urgency of her study, and she would take the comments made into consideration in her next report.
FRANCOISE JANE HAMPTON, Subcommission Expert, said that States had the obligation to protect all those within their jurisdiction from terrorist activity, on condition that they did not exceed the limits on legitimate action contained in human rights law and that they did not themselves slip into State terrorism. Therefore there was no doubt that States not only could but had to take preventive measures, within those limits. Judicial cooperation was needed so that the State where the suspects had been found could be provided with the necessary evidence in order to carry out the proceeding, in the event that it was not willing or not able to extradite them. In practice, members of organized opposition groups were more likely to stand trial than were the persons for whose actions States were responsible, when they violated the rules.
Turning to Mr. Kartashkin's paper, Mrs. Hampson said that there was a need to improve cooperation with the UN thematic mechanisms. If States which had not ratified the covenants and refused to cooperate with thematic mechanisms were to appear on the agenda of the Commission, she suspected that there would be an improvement in cooperation with thematic mechanisms and an increase in ratifications of human rights treaties.
Mr. Bossuyt's working paper was welcomed and the six-pronged test was very helpful. The sanctions regime was not effective and foreseeably had effects which were not consistent with State's obligations to promote and protect human rights. But it could not be referred to as genocide.
VLADIMIR KARTASHKIN, Alternate Subcommission Member, said he appreciated the comments made on his working paper. Some criticism had been made of his stance on reservations, but in his view, if conventions were to achieve universality, one needed to take a different view of reservations. One had to choose the lesser of two evils; ratification with a reservation was better than no ratification. He had focused in his paper on the International Covenant on Economic, Social and Cultural Rights and the Economic Covenant on Civil and Political Rights, as opposed to the six core human-rights treaties, because he had been so directed, and he favoured focusing the proposed seminar on the matter also on the two Covenants. Otherwise the agenda of the seminar would be overloaded. He was concerned and surprised at the opposition of two Subcommission members to his list of States that had not ratified the Covenants. This information was no secret, and if the Subcommission did not name names and call on specific States to ratify the Covenants, that would not leave much room for an effective approach to solving the ratification problem.
Action on draft measures and resolutions
In a measure (E/CN.4/Sub.2/2000/L.6) on the report of the Chairperson of the Subcommission to the Commission on Human Rights, adopted without a vote, the Subcommission decided to request the Chairperson once again to submit a written report and to report personally to the Commission with regard to significant aspects of the work of the Subcommission at the fifty-seventh session of the Commission.
In a resolution (E/CN.4/Sub.2/2000/L.30) on the creation of a pre-sessional working group on the administration of justice, adopted without a vote, the Subcommission recommended a draft decision to the Commission on Human Rights for adoption that would authorize the Subcommission to convene the working group for two days prior to the Subcommission's session next year.
In a resolution (E/CN.4/Sub.2/2000/L.16) on a social forum, adopted without a vote, the Subcommission decided to hold in Geneva a pre-sessional or intersessional forum on economic, social and cultural rights, to be known as the Social Forum, for three days, with the participation of 10 Subcommission members, taking into consideration equitable representation and expertise in the field; requested the Commission on Human Rights and the Economic and Social Council to endorse the holding of the Social Forum; and recommended a draft decision to that effect to the Commission for adoption.
In a resolution (E/CN.4/Sub.2/2000/L.20) on intellectual property rights and human rights, adopted without a vote, the Subcommission declared that since the implementation of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement of the World Trade Organization did not adequately reflect the fundamental nature and indivisibility of all human rights, including the right of everyone to enjoy the benefits of scientific progress and its applications, the right to health, the right to food, and the right to self-determination, there were apparent conflicts between the intellectual property rights regime embodied in the TRIPS agreement and international human rights law; reminded all Governments of the primacy of human rights obligations over economic policies and agreements; requested Governments to integrate into their legislation and policies provisions that protected the social function of intellectual property; requested the World Trade Organization and the Council on TRIPS during its ongoing review of the TRIPS agreement to take fully into account existing State obligations under international human rights instruments; requested the Special Rapporteurs on globalization and its impact on human rights to include consideration of the TRIPS agreement in their next report; requested the High Commissioner for Human Rights to undertake an analysis of the human rights impact of the TRIPS agreement; encouraged the Committee on Economic, Social and Cultural Rights to clarify the relationship between intellectual property rights and human rights, including through the drafting of a general comment on the subject; recommended that relevant United Nations agencies continue and deepen their analysis of the impacts of TRIPS; and encouraged relevant civil society organizations to promote with their respective Governments the need for economic policy processes fully to integrate and respect existing human rights obligations, and to continue to monitor and publicize the effects of economic policies that failed to take such obligations into account.
EL-HADJI GUISSE, Subcommission Expert, said he had not co-sponsored this resolution as he felt it was premature in nature and could have adverse effects in developing countries. He felt the resolution in front of the Subcommission was a 'fait accompli' and it was necessary to at least know what the WTO was going to do and how the people of the world would accept it under the heading of globalization before this resolution could be voted on. Mr. Guisse suggested the voting on the resolution was deferred until more information had been gathered.
In a resolution (E/CN.4/Sub.2/2000/L.23) on promotion of the realization of the right to drinking water and sanitation, adopted by consensus, the Subcommission subscribed to the remarks of Expert El Hadji Guisse that various obstacles linked to the realization of the right to drinking water supply and sanitation seriously impeded the realization of economic, social and cultural rights, and that equality was an essential element for effective participation in the realization of the right to development and the right to a healthy environment; recommended to the Commission on Human Rights that it authorize the Subcommission to appoint Mr. Guisse as Special Rapporteur to conduct a detailed study on the subject in order to determine the most effective means of reinforcing activities in this field; requested the Special Rapporteur to define as accurately and as fully as possible the content of the right to water in relation to other human rights; and recommended to the Commission a draft decision containing these recommendations.
In a resolution (E/CN.4/Sub.2/2000/L.36) on the optional protocol to the International Covenant on Economic, Social and Cultural Rights, adopted by consensus, the Subcommission reiterated the call made in Commission on Human Rights resolution 2000/9 for all States to submit their comments on the report by the Committee on Economic, Social and Cultural Rights on a draft optional protocol and on the options relating to the proposal for a draft optional protocol; suggested that the Commission establish an open-ended working group entrusted with further study of a draft optional protocol; and requested the High Commissioner for Human Rights to organize an expert meeting on a draft optional protocol and to submit the report of this meeting to the Subcommission at its fifty-third session.
In a resolution (E/CN.4/Sub.2/2000/L.3) on the traditional practices affecting the health of women and the girl child, adopted without a vote, the Subcommission appealed to all States concerned to intensify efforts to develop awareness of and mobilize national public opinion concerning such harmful practices, in particular through education, information and training, in order to achieve total eradication of these practices; requested all NGOs dealing with women's issues to devote part of their activities to the study of such practices and ways of eradicating them; welcomed progress made; appealed to the international community to provide material, technical and financial support to the NGOs and other groups working with total dedication to achieve the eradication of these practices; called on all Governments to give full attention to the implementation of the relevant Plan of Action; considered that one of the most effective means of developing awareness of Governments about such harmful practices was to organize regional seminars on the question; reiterated its proposal that three seminars be held in Africa, Asia and Europe to review progress made since 1985 and ways and means of overcoming obstacles encountered; and extended the mandate of its Special Rapporteur on traditional practices affecting the health of women and the girl child, Halima Embarek Warzazi for another two years.
* *** *
and Protection of Human Rights
52nd session
17 August 2000
Morning
The Subcommission on the Promotion and Protection of Human Rights approved a series of resolutions and decisions this morning relating to economic, social and cultural rights, implementation of human rights with regard to women, and the Subcommission's own methods of work.
In a resolution on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement of the World Trade Organization, the Subcommission charged that implementation of the agreement did not adequately reflect the fundamental nature and indivisibility of all human rights, including the right of everyone to enjoy the benefits of scientific progress and its applications, the right to health, the right to food, and the right to self-determination, and said there were apparent conflicts between the intellectual property rights regime embodied in the TRIPS agreement and international human rights law. It requested the World Trade Organization and the Council on TRIPS during its ongoing review of the TRIPS agreement to take fully into account existing State obligations under international human rights instruments.
In a resolution on traditional practices affecting the health of women and the girl child, the Subcommission appealed, among other things, to all States concerned to intensify efforts to develop awareness of and mobilize national public opinion concerning such harmful practices, in particular through education, information and training, in order to achieve total eradication of these practices.
The Subcommission additionally sought permission from the Commission on Human Rights to hold next year a pre-sessional or intersessional forum on economic, social and cultural rights, to be known as the Social Forum, for three days, with the participation of 10 Subcommission members.
In other action, the panel of 26 human-rights experts recommended a draft decision to the Commission on Human Rights that would authorize the Subcommission to convene its working group on the administration of justice for two days prior to its session next year.
It recommended to the Commission that it authorize the Subcommission to appoint Subcommission Expert El-Hadji Guisse as Special Rapporteur to conduct a detailed study on promotion of the realization of the right to drinking water and sanitation.
And it suggested that the Commission establish an open-ended working group entrusted with further study of a draft optional protocol to the International Covenant on Economic, Social and Cultural Rights.
Earlier in the morning the Subcommission completed debate under its agenda item on "review of further developments in fields with which the Subcommission has been or may be concerned", which covered such topics as national, regional and international efforts for human rights; elimination of religious intolerance; encouragement of universal acceptance of human rights instruments; implications of humanitarian activities for the enjoyment of human rights; terrorism; peace and security as an essential condition for the enjoyment of human rights; human rights and disabilities; human rights and scientific and technological developments; the adverse consequences of the transfer of arms and illicit trafficking in arms; and arbitrary deprivation of nationality.
Representatives of the following non-governmental organizations contributed to the discussion: the World Federation of Mental Health, Interfaith International, Pax Romana, the General Arab Women Federation, the International League for the Rights and Liberation of Peoples, the Movement against Racism and for Friendship among Peoples, and the International Human Rights Association of American Minorities.
Representatives of the national delegations of Italy, India, Turkey, Pakistan, Angola, Saudi Arabia, and Belarus addressed the meeting.
And the United States, Iraq, India, and Pakistan exercised their right of reply.
Subcommission Experts and Alternate Members El-Hadji Guisse, Kalliopi Koufa, Francoise Jane Hampson, and Vladimir Kartashkin spoke.
The Subcommission will reconvene at 3 p.m. to continue action on draft resolutions and decisions.
Review of further developments infields with which the Subcommission has been or may be concerned
WILDA SPALDING, of the World Federation of Mental Health, said the shorter session of the Subcommission had had a bad effect on the physical and mental health of participants in this meeting. People with mental disabilities were largely ignored by the activities of the UN system. People with disabilities had consistently urged the creation of an Office of Ombudsman as a non-confrontational method of resolving issues related to them, but the matter was barely even referred to in recent Commission on Human Rights resolutions and was never mentioned in papers or reports issued through the UN offices in New York. Even in times of fiscal impact and cutback, some expenses were justified.
The Subcommission, meanwhile, should submit most urgently its concerns that remedial action be taken to return to a four-week session.
KASHINATH PANDITA, of Interfaith International, said that for more than a decade, the fascists had been perpetrating crimes of genocide in Kashmir. A cover for legitimizing these brutalities had been found in the slogan of struggle for freedom. These barbaric killers had a method in their madness and whenever a step was taken for dialogue, they sabotaged the attempts with the backing of external sponsors. The killings were a blatant act of international crime. Peace had to be found, but it could first be found in the minds of people. The Subcommission was urged to pay attention to this conflict and to hear the pleading of the suffering people.
JOSEPH RAJKUMAR, of Pax Romana, said communities had to be protected from violence; it had to be emphasized the security began with prevention. Globalization was eroding the traditional powers of the nation State, yet the first duty of States remained prevention, which applied to human rights as well as peace. The right to self-determination also deserved greater attention; after its thirty-first session, the Subcommission had not done any work on the right to self-determination. There were complex interconnections between self-determination, democratization, and human rights. In its broad sense, self-determination was rooted in the fundamental human impulse to be free and to construct alliances and political communities based on this desire.
Pax Romana urged the Subcommission to elaborate a working paper, without financial implications, on the implementation of the right to self-determination as a contribution to international peace and security. It should include an internal colonization context.
JULIET SAYEGH, of the General Arab Women Federation, said the Federation was against the sanctions imposed on the people of Iraq. Scientific reports had confirmed that depleted uranium caused short-term and long-term medical harm to men, women and children. The inhuman health effects of the weapons could continue for several decades. One had to question why these weapons had been used in Iraq, Serbia and Kosovo. The illnesses reported were similar across these regions. There were already severe health issues and problems in Iraq, due to the embargo and the daily bombings. The use of the depleted uranium led to cancer and genetic defects. There was no infrastructure in Iraq to attend to these severe illnesses. The use of depleted uranium and the continuation of the embargo were grave violations of human rights. The Subcommission was urged to give this issue a high priority.
VERENA GRAF, of the International League for the Rights and Liberation of Peoples, said Mrs. Koufa should be provided with the necessary support to pursue her study on terrorism; terrorism could not be condoned, and no effort should be spared to eradicate it. But the Subcommission must reflect on terrorism's root causes. Most people resorted to violence because they were denied their rights and claims or were not heard or addressed; and often the international community had been a sort of accomplice to the onset and persistence of unjust conditions involving peoples.
The Subcommission's attention was called to a tentative proposal for what could hopefully be a first step towards a peaceful settlement in the Basque country which was contained in the document (E/CN.4/Sub.2/2000/NGO/4). More attention should be given as well to the situation in the Moluccas, where peace and security were clearly a vital condition for the enjoyment of human rights. An on-site fact-finding mission was the least the international community could to for the Moluccas.
GIANFRANCO FATTORINI, of the Movement against Racism and Friendship among Peoples, said that controlling the spread of small arms and weapons was essential for international stability. The proliferation of small arms was in direct contradiction to the protection of life, in fact small arms were responsible for the most amount of losses of lives. The proliferation of small arms was a serious problem as there existed very little regulation and control. Much of the United Nations system was dealing in one way or another with the result of the proliferation of small arms and weapons. One serious challenge was to stop the human rights violations which occurred as a result of the proliferation of these arms. The transfer of these weapons led to wars, unrest and terrorism. There was a need to call on the Member States of the United Nations to take action and halt the proliferation of small weapons.
MICHAEL LERFORD, of the International Human Rights Association of American Minorities, said indigenous groups had been excluded from participating in the development of the now colonial state of Alaska in the United States; it had been ruled that the indigenous peoples of Alaska had no Fifth Amendment rights -- that was, no right to life, property, due process of law, etc. This was the basis for the creation of the Alaska Native Claims Settlement Act. These actions constituted racial apartheid.
Sovereign traditional rights of aboriginal peoples also should be upheld; and aboriginal peoples asserted their right to be free from legal and territorial interference in their lives.
ANDREA NEGRETTO CAMBASO (Italy) said that there was no need to dwell on the link between the proliferation of weapons and the violation of human rights, the link was clear. The was a close link between disarmament and development, and all States had to take this on board. References to confidence-building measures and to regional arms control agreements were being made increasingly in different fora. Why was it that only Europe benefited from such regional all-encompassing measures of arms control. The implications had direct bearing on the protection of the right to life and the right to development, especially in developing countries affected by situations of conflict. This was even more true when it came to illegal arms trading. The Subcommission, in making in-depth examinations of human rights, needed to take this into account and mainstream cultural backgrounds or political realities, outside political polemics, in order to better come to grips with threats to human rights.
R. N. PRASAD (India) said terrorism posed one of the most serious threats to human rights. Terrorist acts violated the most important right of all -- the right to life -- and impinged on all other human rights. India believed that there was an urgent need for a comprehensive study on the impact of terrorism especially as the debate remained inconclusive, partly because of the misleading propaganda of the State and non-State actors who sought to conceal their violent agendas behind the lofty principles of "self-determination" and "freedom struggle".
Mrs. Koufa should be allowed to carry out her study on terrorism as soon as possible, as terrorism was totally at odds with democratic and liberal societies. India had been the victim of terrorism aided and abetted by a neighbouring country, which nurtured territorial ambitions against the Indian state of Jammu and Kashmir. India strongly supported negotiations on a comprehensive international convention on terrorism.
BULENT MERIC (Turkey) said terrorism was not only a criminal phenomenon, it violated human rights such as the right to life and development. There was a clear link between combatting terrorism and the protection and upholding of human rights. It was regretted that the Subcommission was behind schedule. It was worth looking into this delay. The Subcommission should give the Special Rapporteur the help she required to complete her work. It was difficult to understand the lack of support given to the Special Rapporteur. The Office of the High Commissioner for Human Rights was urged to provide immediate assistance.
Today, individuals and groups also had a responsibility in the promotion of human rights. The Subcommission had been playing a leading role in this regard and Turkey supported this development.
IMTIAZ HUSSAIN (Pakistan) said his country was disappointed about the delay of the study on terrorism and would support Mrs. Koufa in her efforts to carry it out. A definition of terrorism was needed; absence of a definition had allowed States committing aggression and indulging in acts of foreign occupation and alien domination to label those fighting against the occupation as terrorists. Terrorism needed to be distinguished from legitimate armed struggle against foreign aggression and occupation as well as for the right to self-determination and acts of self-defense. Such criteria should be included in a working definition of terrorism.
Terrorism was identified as a major threat to democratic and pluralist societies, and Pakistan shared that perception. But you could not have a democratic and pluralist society in a territory occupied by a foreign power by military force; in fact such acts amounted to State terrorism, and States unleashing such campaigns should not be allowed to claim they were curbing terrorism.
JULIA DE ASSUNCAO CIPRIANO MACHADO (Angola) said that the Republic of Angola gave a priority to the topics which had been dealt with in this session of the Subcommission. Terrorism was a phenomenon which constituted a threat to the peace and territorial unity of the State. It threatened the Constitutional order and the rule of law. Contemporary terrorism could be distinguished from traditional terrorism, as it consisted of new kinds of violence through the advances in technology. In the new political and economic conditions, contemporary terrorism posed a real threat to international stability and the protection of human rights. The linkage was a complex matter, areas of consensus were so far only found in the definition of terrorism. Despite the absence of consensus on further related issues, it had to be pointed out that the initial resolution on terrorism had categorically rejected all forms and expressions of terrorism. The efforts of the international community in the fight against terrorism had to be strengthened by preventive mechanisms, on a national, regional and international level. These were common concerns, yet no practical measures had been taken in reducing military expenditure or disarmament. Even developing countries spent on average three times as much on arms than on education. It was time to adopt adequate measures through the United Nations, which was mandated to promote peace and security, and through the implementation of legal mechanisms.
TORKI AL MADI (Saudi Arabia) said the planned study on reservations to human rights treaties had not been appropriately considered and framed by the Commission; any future study on the matter should relate to and reflect the standards set by the International Law Commission and adopted by the General Assembly. The Vienna system was flexible and applied to all categories of treaties, including human-rights treaties. If the drafters had wanted to distinguish between human-rights and other treaties, they would have done so.
Further, any possible prejudice against the Vienna system would certainly lead to prejudice against other conventions, including human-rights conventions. Rules were made to be followed. Human-rights treaty bodies should clearly abide by their mandates. Where the mandates were not precise, the matter of reservations to treaties should not be questioned by those bodies. It also was important not to have duplication of work in the UN system.
DMITRY MIRONCHIK (Belarus) said the Byelorussian Government had undertaken several measures in order to ensure that the parliamentary elections to be held in October were free and fair. Among these actions was access of all political parties to equal air time on the national media, and participation in elections of all those wishing to take part in them. This was a period of trust. There had been an expansion of parliamentary functions, which would be included in the newly elected parliament. This was an objective necessity.
Rights of reply
A representative of the United States, speaking in right of reply, said the working paper on the effects of sanctions, and in particular its case study of UN sanctions against Iraq, was incorrect, biased, inflammatory and risked the credibility of the Subcommission. The paper mischaracterized the purpose of the sanctions and misrepresented the intentions of senior U.S. officials. The U.S. had worked hard to ensure that the welfare of the Iraqi people was protected, in stark contrast to the appalling behaviour of a brutal Iraqi regime which was completely indifferent to the suffering of its own people. Iraq itself controlled the duration of sanctions. Iraq could end the sanctions by complying with UN resolutions, which were based on international law. The sanctions were related to Iraq's naked aggression against a neighbouring State. If the oil-for-food programme was allowed to operate free from barriers set up by the Iraqi regime, it could provide for the well-being of the population.
A representative of Iraq, speaking in right of reply, said the United States delegate had spoken of the well-being of the Iraqi people which seemed inappropriate as the U.S. was responsible for the killing of Iraqis. A whole population was being destroyed. The Iraqi delegate referred to the May 1996 interview with Mrs. Albright where she had stated that the death of half a million Iraqi people was worth it. It was questionable if even the Nazis had said or admitted to such immorality as Mrs. Albright. This was an era of communications, and the U.S. delegate could be supplied with ample amounts of information as to the suffering of the Iraqi people through a simple phone call.
A representative of India, speaking in right of reply, said Pakistan had defended its deep involvement in terrorism in Jammu and Kashmir by calling it aiding a "freedom struggle". In fact, Pakistan was one of the world's leading exporters of terrorism. Pakistan was dotted with training camps producing terrorists of all hues. The Indian democracy was faced with a difficult problem, but it had the strength and would confront the challenge of terrorism.
A representative of Pakistan, speaking in right of reply, said the delegation had tried to give a realistic view of how terrorism should be handled. It took strong exception to the direct and twisted attack on Pakistan. A few authentic sources had stated that there were human rights abuses by the Indian security forces in Jammu and Kashmir. These forces functioned outside the normal army and carried out questionable orders. Since early 1985, India had been making use of State sponsored military peoples without accountability, to intimidate and harass. Jammu and Kashmir was a disputed area and Pakistan would continue to provide objective and diplomatic information.
A representative of India, in a second right of reply, said the Pakistani magazine Newsline of March 2000 said the Pakistani Government was supporting militant groups in the Kashmir Valley. How long would Pakistan continue to try to pull the wool over the eyes of the world in a futile effort to disguise its immense involvement in terrorism?
A representative of Pakistan said in a second right of reply that when it came to quoting, he himself could provide more from Indian newspapers. There were credible international organizations which could be quoted as well. Pakistan had been blamed for the massacre in March 2000, however the Indian security forces had known about it but done nothing about it.
EL-HADJI GUISSE, Subcommission Expert, said the problems focused on by studies under this agenda item affected the security of everyone and related closely to the application of international instruments. Reservations to these instruments had up to now been detrimental to their application. The objectives the study on economic sanctions was striving towards deserved support, despite the criticism directed at the study. The Special Rapporteur should continue his work along its current directions.
MARC BOSSUYT, former Subcommission Expert and Special Rapporteur, said that he appreciated the responses from the Subcommission Experts and the non-governmental organizations. He had seen that much interest had been paid to the sanctions on Iraq. Mr. Weissbrodt had said that the report said the sanctions represented a genocide, but it had actually said that questions could be raised under the topic of genocide. He fully agreed that the sanctions at the time of implementation had been legal. However, it seemed that the sanctions agreed upon could not just continue for 10 years or even 40 years later without being discussed. Especially when the adverse effects were flagrant. This was a gross political error. Today, it was Iraq which was suffering from human rights violations through the sanctions. Two wrongs did not make a right.
KALLIOPI KOUFA, Alternate Subcommission Member, said she was grateful for the references to the urgency of her study, and she would take the comments made into consideration in her next report.
FRANCOISE JANE HAMPTON, Subcommission Expert, said that States had the obligation to protect all those within their jurisdiction from terrorist activity, on condition that they did not exceed the limits on legitimate action contained in human rights law and that they did not themselves slip into State terrorism. Therefore there was no doubt that States not only could but had to take preventive measures, within those limits. Judicial cooperation was needed so that the State where the suspects had been found could be provided with the necessary evidence in order to carry out the proceeding, in the event that it was not willing or not able to extradite them. In practice, members of organized opposition groups were more likely to stand trial than were the persons for whose actions States were responsible, when they violated the rules.
Turning to Mr. Kartashkin's paper, Mrs. Hampson said that there was a need to improve cooperation with the UN thematic mechanisms. If States which had not ratified the covenants and refused to cooperate with thematic mechanisms were to appear on the agenda of the Commission, she suspected that there would be an improvement in cooperation with thematic mechanisms and an increase in ratifications of human rights treaties.
Mr. Bossuyt's working paper was welcomed and the six-pronged test was very helpful. The sanctions regime was not effective and foreseeably had effects which were not consistent with State's obligations to promote and protect human rights. But it could not be referred to as genocide.
VLADIMIR KARTASHKIN, Alternate Subcommission Member, said he appreciated the comments made on his working paper. Some criticism had been made of his stance on reservations, but in his view, if conventions were to achieve universality, one needed to take a different view of reservations. One had to choose the lesser of two evils; ratification with a reservation was better than no ratification. He had focused in his paper on the International Covenant on Economic, Social and Cultural Rights and the Economic Covenant on Civil and Political Rights, as opposed to the six core human-rights treaties, because he had been so directed, and he favoured focusing the proposed seminar on the matter also on the two Covenants. Otherwise the agenda of the seminar would be overloaded. He was concerned and surprised at the opposition of two Subcommission members to his list of States that had not ratified the Covenants. This information was no secret, and if the Subcommission did not name names and call on specific States to ratify the Covenants, that would not leave much room for an effective approach to solving the ratification problem.
Action on draft measures and resolutions
In a measure (E/CN.4/Sub.2/2000/L.6) on the report of the Chairperson of the Subcommission to the Commission on Human Rights, adopted without a vote, the Subcommission decided to request the Chairperson once again to submit a written report and to report personally to the Commission with regard to significant aspects of the work of the Subcommission at the fifty-seventh session of the Commission.
In a resolution (E/CN.4/Sub.2/2000/L.30) on the creation of a pre-sessional working group on the administration of justice, adopted without a vote, the Subcommission recommended a draft decision to the Commission on Human Rights for adoption that would authorize the Subcommission to convene the working group for two days prior to the Subcommission's session next year.
In a resolution (E/CN.4/Sub.2/2000/L.16) on a social forum, adopted without a vote, the Subcommission decided to hold in Geneva a pre-sessional or intersessional forum on economic, social and cultural rights, to be known as the Social Forum, for three days, with the participation of 10 Subcommission members, taking into consideration equitable representation and expertise in the field; requested the Commission on Human Rights and the Economic and Social Council to endorse the holding of the Social Forum; and recommended a draft decision to that effect to the Commission for adoption.
In a resolution (E/CN.4/Sub.2/2000/L.20) on intellectual property rights and human rights, adopted without a vote, the Subcommission declared that since the implementation of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement of the World Trade Organization did not adequately reflect the fundamental nature and indivisibility of all human rights, including the right of everyone to enjoy the benefits of scientific progress and its applications, the right to health, the right to food, and the right to self-determination, there were apparent conflicts between the intellectual property rights regime embodied in the TRIPS agreement and international human rights law; reminded all Governments of the primacy of human rights obligations over economic policies and agreements; requested Governments to integrate into their legislation and policies provisions that protected the social function of intellectual property; requested the World Trade Organization and the Council on TRIPS during its ongoing review of the TRIPS agreement to take fully into account existing State obligations under international human rights instruments; requested the Special Rapporteurs on globalization and its impact on human rights to include consideration of the TRIPS agreement in their next report; requested the High Commissioner for Human Rights to undertake an analysis of the human rights impact of the TRIPS agreement; encouraged the Committee on Economic, Social and Cultural Rights to clarify the relationship between intellectual property rights and human rights, including through the drafting of a general comment on the subject; recommended that relevant United Nations agencies continue and deepen their analysis of the impacts of TRIPS; and encouraged relevant civil society organizations to promote with their respective Governments the need for economic policy processes fully to integrate and respect existing human rights obligations, and to continue to monitor and publicize the effects of economic policies that failed to take such obligations into account.
EL-HADJI GUISSE, Subcommission Expert, said he had not co-sponsored this resolution as he felt it was premature in nature and could have adverse effects in developing countries. He felt the resolution in front of the Subcommission was a 'fait accompli' and it was necessary to at least know what the WTO was going to do and how the people of the world would accept it under the heading of globalization before this resolution could be voted on. Mr. Guisse suggested the voting on the resolution was deferred until more information had been gathered.
In a resolution (E/CN.4/Sub.2/2000/L.23) on promotion of the realization of the right to drinking water and sanitation, adopted by consensus, the Subcommission subscribed to the remarks of Expert El Hadji Guisse that various obstacles linked to the realization of the right to drinking water supply and sanitation seriously impeded the realization of economic, social and cultural rights, and that equality was an essential element for effective participation in the realization of the right to development and the right to a healthy environment; recommended to the Commission on Human Rights that it authorize the Subcommission to appoint Mr. Guisse as Special Rapporteur to conduct a detailed study on the subject in order to determine the most effective means of reinforcing activities in this field; requested the Special Rapporteur to define as accurately and as fully as possible the content of the right to water in relation to other human rights; and recommended to the Commission a draft decision containing these recommendations.
In a resolution (E/CN.4/Sub.2/2000/L.36) on the optional protocol to the International Covenant on Economic, Social and Cultural Rights, adopted by consensus, the Subcommission reiterated the call made in Commission on Human Rights resolution 2000/9 for all States to submit their comments on the report by the Committee on Economic, Social and Cultural Rights on a draft optional protocol and on the options relating to the proposal for a draft optional protocol; suggested that the Commission establish an open-ended working group entrusted with further study of a draft optional protocol; and requested the High Commissioner for Human Rights to organize an expert meeting on a draft optional protocol and to submit the report of this meeting to the Subcommission at its fifty-third session.
In a resolution (E/CN.4/Sub.2/2000/L.3) on the traditional practices affecting the health of women and the girl child, adopted without a vote, the Subcommission appealed to all States concerned to intensify efforts to develop awareness of and mobilize national public opinion concerning such harmful practices, in particular through education, information and training, in order to achieve total eradication of these practices; requested all NGOs dealing with women's issues to devote part of their activities to the study of such practices and ways of eradicating them; welcomed progress made; appealed to the international community to provide material, technical and financial support to the NGOs and other groups working with total dedication to achieve the eradication of these practices; called on all Governments to give full attention to the implementation of the relevant Plan of Action; considered that one of the most effective means of developing awareness of Governments about such harmful practices was to organize regional seminars on the question; reiterated its proposal that three seminars be held in Africa, Asia and Europe to review progress made since 1985 and ways and means of overcoming obstacles encountered; and extended the mandate of its Special Rapporteur on traditional practices affecting the health of women and the girl child, Halima Embarek Warzazi for another two years.
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