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04 August 2000
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Sub-Commission on the Promotion
and Protection of Human Rights
52nd session
4 August 2000
Morning
Members Offer Views on Study of Affirmative Action
Experts of the Subcommission on the Promotion and Protection of Human Rights offered suggestions this morning on the scope and particulars of an on-going study on the concept and practice of affirmative action.
Their remarks followed presentation of a preliminary report on the topic by Special Rapporteur Marc Bossuyt, a former member of the Subcommission who now serves with the Committee on the Elimination of Racial Discrimination (CERD). Mr. Bossuyt told the panel that he had sent a questionnaire to Governments and was awaiting replies, and that the preliminary document focused on the presence of the concept of affirmative action in international law, on the question of limits to affirmative-action efforts, and on definitions.
Subcommission Experts suggested, among other things, that future reports pay greater attention to practical steps taken and results achieved through affirmative-action projects in various countries; to the establishment of a clear understanding of what affirmative action was that could help countries where the issue had not been broached or was not well-known; and to the application of the concept to indigenous peoples and to minorities.
The panel also was updated on work under way on a study on the rights of non-citizens by Expert David Weissbrodt.
Earlier in the meeting the Subcommission concluded debate under its agenda item on the question of human-rights violations in any country, hearing a flurry of rights of reply from States taking issue with the assertions of Experts, non-governmental organizations, and country representatives who had made formal remarks on situations around the world.
The International Labour Organization and the NGO International Human Rights Law Group spoke at the morning meeting, as did Subcommission Experts Miguel Alfonso Martinez; Asbjorn Eide; Erica-Irene A. Daes; Louis Joinet; Fan Guoxiang; Yeung Kam Yeung Sik Yuen; Rajendra Kalidas Wimala Goonesekere; David Weissbrodt; Godfrey Bayour Preware; and Halima Embarek Warzazi.
Azerbaijan, Nepal, Indonesia, Democratic People's Republic of Korea, Pakistan, Nigeria, Bhutan, and India spoke in exercise of the right of reply.
The Subcommission will reconvene in plenary at 10 a.m. on Monday, 7 August, to continue its discussion of the elimination of racial discrimination.
Issues relating to the elimination of racial discrimination
Under this agenda item the Subcommission has before it a preliminary report (E/CN.4/Sub.2/2000/11) submitted by Expert Marc Bossuyt on the concept and practice of affirmative action, which notes that a questionnaire, reproduced in an annex to the report, was sent by the Office of the High Commissioner for Human Rights to Governments, international organizations, and non-governmental organizations, but that time was too short to expect responses in time for issuance of the report. The document therefore contains a first section providing an analysis of international conventions containing provisions relating to affirmative action and a second section examining the limits international law sets on affirmative-action measures.
Statements on the question of human rights violations in any country
MIGUEL ALFONSO MARTINEZ, Subcommission Expert, said that now, since the changes ordered by the Commission on Human Rights, the positions of Experts on item 2 should change from emphasis on civil and political rights to a more balanced focus on all human rights, including economic, social and cultural rights, which after all were indivisible and interrelated. Perhaps interest in human-rights violations would now no longer be aimed only at countries of the so-called Third World. Such violations weren't the negative "privilege" only of the Third World. For example, there were recent activities in Germany that had led to concerns that political parties with neo-Nazi concerns might have to be restricted. There were serious concerns in the United States, such as the execution of minors and the mentally disabled, the bias obvious in the characteristics of the prison population, the problems experienced by indigenous peoples. There was the situation in Austria which had given rise to concern in the European Union.
So the Subcommission's analysis should not be confined to countries of a given region -- violations could occur anywhere in the world, could occur even in operations of a military nature, as in Kosovo, initiated for so-called humanitarian purposes. In fact the military operation there had been a clear violation of international law, of Chapter 9 of the United Nations Charter. In the federal Republic of Yugoslavia, in fact, there had been numerous human-rights violations committed by these humanitarian forces. This particular Expert would never acquiesce in cloaking violations of the UN Charter under the misleading term "humanitarian operation".
ASBJORN EIDE, Subcommission Expert, said that much had improved in the field of human rights. Brutal and repressive regimes were slowly disappearing and most Governments were now democratic and pluralist. Violations of human rights these days had different characteristics. The notions of prevention, respect, protection, sanction and remedies were useful frameworks for improving human rights. The United States had a mixed record -- sometimes at the forefront in the struggle to uphold human rights, but unfortunately very slow at ratifying conventions, such as the Convention on the Rights of the Child. There was a lack of effective protection and prevention of human rights violations.
Multi-ethnic or multi-religious societies were more commonly violating human rights. The situations in Afghanistan, Pakistan and Turkey were sources of concern, as were the ethnic tensions in Sri Lanka and Kosovo. Extreme poverty and inequality in a world of plenty was another reason for human rights violations. The problems in Africa could partly be explained by the unfavourable economic situation. The eradication of poverty was pivotal for promoting human rights. Concern was raised as to the prevalence of the arms trade in Africa, where the economic benefits went to the rich and the costs were suffered by the poor. Follow-up should play a more important role in the work of the Subcommission, particularly in the following countries: Mexico, Peru, Colombia, Belarus, Democratic People's Republic of Korea, Indonesia, Bhutan and Togo. The Subcommission was no longer allowed to adopt resolutions where names of specific countries were mentioned but it had a duty to, at least, address issues which required attention.
ERICA-IRENE DAES, Subcommission Expert, said massive and systematic violations of human rights continued to occur around the world in spite of the collection of international and regional instruments intended to prevent such abuses. She supported the specific comments already made on various situations by her colleagues Mr. Weissbrodt, Mrs. Hampson, and Mr. Eide.
One of the most inhuman institutions resulting in violations was the "embargo", and she had drafted a modest resolution, which she would circulate to her colleagues, which recommended, among other things, that a workshop be organized by the Office of the High Commissioner for Human Rights, to be attended by experts, with the purpose of examining the consequences and implications of such embargoes on human rights, particularly the human rights of vulnerable groups such as children, women, sick persons, the elderly, minorities, and indigenous peoples. Another serious contemporary international crime was military occupation by foreign forces of a land or a part of a land. In some countries, military forces, paramilitary groups, armed civilians, and others abused authority, oppressed people and persecuted human-rights defenders. It was time for an effective international reaction to such crimes.
Finally, she hoped the Subcommission would continue to propose and adopt ways to implement the prevention and protection of so-called "third generation" human rights such as the right to self-determination, the right to development, and the right to a clean environment.
Rights of reply
A representative of Azerbaijan said in a right of reply that the statement of Armenia under item 2 contained inadmissable remarks concerning Azerbaijan. It was an irresponsible statement and an unprecedented attempt to take over the United Nations bodies. Before speaking in front of the Subcommission and its human rights experts, the speaker of Armenia should have educated himself as to facts and the procedures of the Subcommission. The speaker's interpretation of facts had nothing to do with the current interpretation of international human rights law. It would have been more appropriate to refer to Security Council decisions on this topic.
A representative of Nepal, speaking in right of reply, said statements made by Bhutan and the Lutheran World Federation required a response to clarify the position of Nepal. About 100,000 refugees from Bhutan, some of whom were civil servants, diplomats, teachers and hard-working farmers, had been forced to leave their homes and live lives of indignity as refugees in Nepal, and this situation had continued for some 10 years. Nepal had always sought a durable solution that would allow these refugees to return to their country of origin, and since resumption of bilateral talks with Bhutan Nepal had made every possible effort to begin field verification as the first step to resolving the problem. Nepal also had made every effort to accommodate the often-inflexible Bhutanese stand on technical and other details of joint field verification, but the talks had ended rather inconclusively. Nepal had provided asylum to these refugees on humanitarian grounds and at great expense, and urged everyone in the international community to help in resolving the matter so that the refugees could return to their home country in safety and dignity and without further delay.
A representative of Indonesia, speaking in right of reply, said the multi-dimensional crises inherited from previous regimes by the current Government were complex and often driven by local economic and social disparities; the Government was taking strong and careful steps to address each of these problems and was favouring an approach based on dialogue rather than confrontation to put an end to conflicts such as those in Aceh, the Moluccas and Papua. In the face of increasingly ferocious clashes in the Moluccas, a state of emergency had been imposed and all steps were being taken to restore order and to prevent suspicious elements from entering the territory and smuggling arms in; the Government was taking all necessary measures to ensure that members of the Army did not side with any of the factions and had taken strong action against any who violated the code of conduct. With regard to Aceh, a joint understanding for a humanitarian pause had been signed between the Government and the GAM to allow delivery of humanitarian assistance.
A representative of the Democratic People's Republic of Korea said in a right of reply that Mr. Yokota's allegations regarding disappearances of human rights defenders in Japan had been unsubstantiated. These problems of disappearances had existed in Japan for a long time and had nothing to do with the Democratic People's Republic of Korea. In fact it was the Democratic People's Republic of Korea was the victim, where 6 million Koreans had been forcibly used as labourers by wartime Japan and thousands of Korean women had been forced to serve as sex slaves.
A representative of Pakistan, speaking in right of reply, said no procedural device could prevent the people of Pakistan from upholding the right to self-determination of the people of Kashmir, who had been promised that right by the UN Security Council through a free and fair plebiscite; that promise remained to be carried out, and it was the duty of United Nations human-rights bodies such as the Subcommission to help rather than hinder the implementation of Security Council resolutions. He had heard several statements about Pakistan's role in Kashmir. He had visited Kashmir, had seen the conditions there and had seen the condition of those who had fled across the line of control, had seen the artillery shells fired across that line by Indian forces. The Subcommission's rule on discussion of this item did not apply to disputed territory; the Kashmiris, if they had the right to speak, would join their voices with that of Pakistan. Pakistan would continue to defend its right to speak on the situation in Kashmir.
A representative of Nigeria said in a right of reply that the International Commission of Jurists when mentioning Nigeria as one of the five countries having executed children under the age of eighteen through the death penalty, was misinformed. The statement was totally false. The death penalty in relation to those under eighteen years of age was non-existent. The Children and Young Persons Act had abolished this practice in the 1950s. The Government of Nigeria acted in accordance with Nigerian law, and had not at any time acted against its legal constitution. Hopefully this clarification would bring this misconception to a definite close.
A representative of Bhutan, speaking in right of reply, said the statement by Nepal had incorrectly portrayed the situation of those in the camps in Nepal and the nature of negotiations under way; Bhutan hoped that Nepal was not seeking to undermine the recent progress in the bilateral talks between the two friendly countries.
A representative of India, speaking in right of reply, said India appreciated that the Subcommission's Experts had tried hard to observe the rules of the session and had tried to keep countries from engaging in slinging matches under debate on item 2. Yesterday the delegate of Pakistan had been interrupted when he had tried to make unfair and completely unsubstantiated allegations against India in clear violation of these rules. Today, unfortunately, he had tried to do the same thing in the guise of a right of reply. What the distinguished delegate of Pakistan had said this morning should be expunged from the record.
A representative of Nepal, in a second right of reply, said the Government of Nepal was in the process of talks with Bhutan and believed in the positive outcome of those talks. Nepal wished to start the process of the return of the refugees as early as possible.
A representative of Pakistan, in a second right of reply, said the actual title of the item under discussion was "Question of the violation of human rights and fundamental freedoms. . . in all countries with particular reference to colonial and other dependent countries and territories". Jammu and Kashmir was disputed territory under the resolutions of the UN Security Council. If there was any doubt, he would like a legal opinion from the UN legal adviser on this issue. Jammu and Kashmir was not a part of India, it was not a part of Pakistan, it was disputed territory. The Subcommission had a duty to carry out debate on just this subject; the new rule seemed expressly designed to thwart discussion of this issue.
A representative of India, in a second right of reply, said that all observer delegations should adhere to the procedural rule and only speak of human rights violations in their own countries. Pakistan should not be an exception. India again asked that the Pakistani statement be withdrawn from the record.
LOUIS JOINET, Subcommission Expert, said he wished to emphasize that in his statement referring to Austria, he had not criticized the people or the Government, but simply the leader elected; and he would add that a similar situation existed in France, where Jean-Marie Le Pen had been elected. Perhaps he and Mrs. Warzazi could discuss the matter between themselves.
Statements on elimination of racial discrimination
GLORIA MORENOFONTES CHAMMARTIN, of the International Labour Organization, said that one focus of the ILO in recent years had been addressing discrimination against migrant and ethnic minority workers, and the ILO had launched the project to that end entitled "Combating discrimination against (im)migrants and ethnic minority workers in the world of work" which aimed to document and seek remedies to discrimination in access to employment in Western Europe and North America.
The ILO had initiated a process to identify "best practice" models that could be applicable, replicable, sustainable and effective in differing national legal, historical and cultural contexts. ILO believed that the World Conference against Racism should reinforce the relevance and urgency in outlawing xenophobic discrimination and intolerance in national laws and jurisprudence and suggested that the responsibilities for the implementation and follow-up of strategies and remedies be shared among various international agencies.
MARC BOSSUYT, Special Rapporteur and former Subcommission Expert, introducing his preliminary study on the concept and practice of affirmative action (E/CN.4/Sub.2/2000/11), said the Committee on the Elimination of Racial Discrimination (CERD), on which he now served, had originally suggested this topic as a subject for study by the Subcommission. The preliminary report before the Subcommission was a start; he would base much of his future work on the replies of States and others to questionnaires; the questionnaire he had first drawn up was appended to the report; it had just been sent to Governments and it was too early for them to provide replies.
The current document focused on affirmative action in international fora in general; the concept was covered by special measures in various human-rights conventions; such measures were not intended to be discriminatory; he had attempted to list such provisions and to shed light on their specific meanings. He also had looked at the case law of such monitoring bodies as the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, CERD, and the Committee on the Elimination of Discrimination against Women (CEDAW). In the second part of the report he had focused on one of the stickiest problems in the field -- the matter of the limits on affirmative action. Among other things, such measures often were termed temporary, which raised the question of how one decided when they were no longer necessary. Ambiguities in concept and terminology were also a problem, and he had tried to clarify some of these ambiguities. Decisive in determining whether discrimination had occurred, in his opinion, was the linkage between the reason for the action that might be discriminatory and the right that had been infringed by it.
LOUIS JOINET, Subcommission Expert, said that all those coming up against the issues described in the report had found it a very difficult topic. There were major problems which had been described in the report, and it offered several solutions. In France, he had just been involved in a case on the right to self-determination of the people of New Caledonia, where the report had come in handy.
FAN GUOIXIANG, Subcommission Expert, said Mr. Bossuyt's report was comprehensive and impressive. He had a question. The concept of affirmative action in eastern countries such as China, while it existed, might not have the same meaning or name. The first time he had heard the term was in the Subcommission, and he'd had to look it up in an English dictionary, finding the term had originated in the United States. Its origin seemed to have been confused, and to normal people in China the term in that sense was incomprehensible. He hoped Mr. Bossuyt would study affirmative action not only from the point of view of international law; he'd like to know the social and cultural background of its manifestation in many countries before it was set in the context of international law. He'd also reviewed the questionnaire sent to Governments, and wondered how different Governments would interpret the terms it contained, of if they'd interpret them in the same way, and if the true meaning of their responses could be reliably determined.
ABJORN EIDE, Subcommission Expert, said there was a need to make some distinctions to achieve a just equality, and he would provide some written suggestions. Provisionally, it was useful to make a distinction between affirmative action and protective measures which were more long-term in nature. But the drawing of the dividing line could be difficult. As long as one was dealing with material issues, affirmative action was a simple idea. It was when dealing with cultural, societal and linguistic differences that the topic became more difficult to grasp. More development was required on the dividing line between various phenomena and it was necessary to take into account the international instruments which had already emerged in this field, which could be helpful in providing direction. Legal distinctions were needed with regard to minority groups.
YEUNG KAM SIK YUEN, Subcommission Expert, said Mr. Bossuyt's paper made a forceful, interesting, and necessary distinction in saying that affirmative action could not in itself be discriminatory. There were references to the existence of the notion of affirmative action in international law, stressing that the concept was very much present internationally. In fact, affirmative action was a formidable device that had been used to better the situation of human rights.
If one imagined a country where an oligarchy had had wealth, land, and Government in its hands, and overnight that country gained independence and overnight the country had to meet the demands of a poor, uneducated, majority population. . . Well, he knew a country close to his where this had occurred, where if it had not been for the concept of affirmative action, it would have been impossible for the majority population to have the training, for example, to provide qualified people to serve in courts of law; it had to be remembered that in such situations people were very impatient. Or, for that matter, who would employ a handicapped person if there was plenty of availability of labour from non-handicapped persons? How could you offer to such a person a fair chance to be employed if he had to compete with others? In a country he knew, a law was passed where if a business employed a handicapped person, for, say, every 100 francs spent on that person, for tax purposes the business could claim twice that amount. Overnight, people who had had no chance of jobs had found themselves employed in jobs they could perform and had enjoyed all the subsequent benefits of useful, dignified employment. He hoped Mr. Bossuyt could focus in his study in part on such practical causes and effects.
RAJENDRA KALIDAS WIMALA GOONESEKERE, Subcommission Expert, commended the mention of the historical background which led to the recognition that there was a need for affirmative action within the notion of equal opportunities. However, it was important to note that when such schemes were adopted, someone would be hurt, irrespective of the noble motives.
Sri Lanka was an example as of unforeseen results to affirmative action within the educational system. There was high competition to get into university and the system was based on meritocracy, the marks which had been scored. But at one point, it was realized that one could not go only on merit as this would continue to isolate some of the rural, disadvantaged areas. Some places were then distributed on the basis of area. The result was that it became possible for low-marks rural students to get admission to universities regardless of their academic achievements. One of the results was that representation of people from the Tamil community dropped, which was seen as a permissible form of temporary affirmative action in the interests of the society at large. The spill-over effect was that the Tamil community charged that this was a deliberate attempt to reduce Tamil students' opportunities. In Sri Lanka, the system had been a starting point for separation and ethnic tension. If there was no clear understanding of a problem, affirmative action could have disastrous consequences. There was always a positive and negative side to affirmative action.
ERICA-IRENE DAES, Subcommission Expert, said the preliminary report on affirmative action was mainly based on the fundamental principles of equality and non-discrimination, and the inclusion of international reflections of the concept of affirmative action was proper and important. She approved of the reference to an Australian case in paragraphs 27 and 28, which really had been a milestone in the evolution of aboriginal land-rights law. After 1978 there had been other, more recent judgments on the matter, which she would submit to Mr. Bossuyt for his consideration, if he requested. She had other information on "positive discrimination" for indigenous peoples she could provide to the Special Rapporteur, and she requested him to pay more attention in his work to affirmative action as it applied to indigenous peoples.
LOUIS JOINET, Subcommission Expert, said it was true that there could be negative sides to affirmative action. When the end of affirmative had been achieved, the measure to accomplish affirmative action had to be ended. Regarding specific situations, the report consisted of many case law examples, and Mr. Joinet wanted to know if there was a relationship between affirmative action and the exercise to the right to self-determination? With regard to States having annexed others, there were often settlement policies installed. Would some kind of affirmative action be used in these situations so as to not falsify the balance of an electorate?
DAVID WEISSBRODT, Subcommission Expert, speaking on an ongoing study on the rights of non-citizens, said that following his presentation of a working paper on the topic last year, he had received numerous useful comments and would make available informally a draft of a further report to Subcommission members who were interested. The document examined the concluding observations and comments of CERD, providing an in-depth example of how the rights of non-citizens were evaluated within the context of the Convention on the Elimination of Racial Discrimination. The draft document also reviewed the jurisprudence of such international bodies as the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, CEDAW, the Committee on the Rights of the Child, and within the context of the International Convention on the Protection of All Migrant Workers and Members of Their Families. He also had looked into the actions of regional institutions.
The draft offered among its conclusions that any approach to discrimination against non-citizens should take into account such criteria as different categories of non-citizens, different categories of rights, countries at different levels of development, and different rationales for distinctions. He hoped his work would be useful to CERD and other UN machinery and suggested that the Subcommission cooperate closely with CERD in preparing a comprehensive examination of the rights of non-citizens. One key goal of the study should be the creation of a standard to ensure than any distinctions were legitimate and did not constitute discrimination. He reiterated his concern that continued discriminatory practices against non-citizens demonstrated the absence of effective standards of that sort.
GODFREY BAYOUR PREWARE, Subcommission Expert, said that racism, xenophobia and hostility towards migrant workers were manifestations of complex fears or suspicions. Regrettably, two World Conferences against Racism and Racial Discrimination organized by the United Nations in 1978 and 1983 and the proclamation and declaration by international bodies over three decades had failed to arrest racial discrimination. There had been some successes, such as the historic change that had taken place in South Africa. The transformation was still on-going in South Africa and gave cause for hope; and developments in other parts of the world at this time underscored the need for sustained initiatives by the Subcommission.
Xenophobia could arise not only from misconceptions about the colour, origins or lifestyle of another person, but also from fears of encroachment of economic prospects. A xenophobe failed to see that migrant workers had a right to live and the ability to contribute constructively to a community. Unfortunately, racial bigots had recognized the vast opportunity offered in this regard by the Internet, print and electronic media. The number of racist websites had risen in the United States from 1997 to 1998 by 64 per cent, while in Germany, the increase was 500 per cent. The European Union had sent a clear message to those who advocated xenophobia by introducing pre-emptive sanctions against a member nation that had accommodated in its Government xenophobic tendencies. There could be no clearer demonstration that Europe recognized this phenomenon as dangerous and unacceptable. Governments had a major responsibility for creating a social environment where this phenomenon was no longer accepted.
JULIAN BOND, of the International Human Rights Law Group, said he was Chairman of the National Association for the Advancement of Colored People, or NAACP; the organization had been founded in 1909 and was the oldest and most accomplished civil rights organization in the United States. The NAACP wished to highlight grave deficiencies in the U.S. criminal justice system, although it also should be pointed out that racism pervaded many other aspects of life in the United States. The NAACP had submitted a call to action to the United Nations, which had been distributed.
The call to action said, among other things, that racial discrimination in the U.S. was particularly pernicious because its new forms were often obscured under guises such as the "war on drugs" and crime prevention; that racial discrimination was endemic in the U.S. criminal justice system from initial suspicion to sentencing; and that African-American men made up 6 per cent of the U.S. population but 50 per cent of the U.S. prison population. It urged the United Nations to call on the U.S. to end such discrimination, to examine the problem of racial bias in its justice system; and to consider missions to the country by relevant United Nations Special Rapporteurs. It further called on the UN to expressly include the issue of race bias in the U.S. criminal-justice system as an agenda item of the upcoming World Conference against Racism.
HALIMA EMBAREK WARZAZI, Subcommission Expert, said the phenomenon of racism was still prevalent in the world. Indigenous people, people of colour and migrant workers were still victims of discrimination and racism. Racism appeared to have become banalized. The situation of discrimination in the United States of America was particularly alarming and continued to be a fact of life in America. The situation in Europe had also been getting worse and worse; there were not only neo-Nazi groups but actual parties and they were gaining power and positions in Government. There was an increase in the west in particular of an ideology which consisted of insulting, hurting and burning. The Internet was unfortunately exploited to this end. The World Conference against Racism had to address these alarming trends, not only in the West but worldwide. Long-term and short-term solutions were needed which could effectively combat all forms of racism.
In France a law had been passed concerning those denying the Holocaust; why could not such a law cover racist articles? Particular protection of migrant workers should be one of the main raisons d'etre for the Subcommission. Migrant workers were a particularly vulnerable group and the trade in illegal workers had to end. Migrant workers needed international protection as they were the only group not protected by international covenants. It was suggested that the day a convention on migrant workers was adopted should be declared a day of solidarity with migrant workers.
* *** *
and Protection of Human Rights
52nd session
4 August 2000
Morning
Members Offer Views on Study of Affirmative Action
Experts of the Subcommission on the Promotion and Protection of Human Rights offered suggestions this morning on the scope and particulars of an on-going study on the concept and practice of affirmative action.
Their remarks followed presentation of a preliminary report on the topic by Special Rapporteur Marc Bossuyt, a former member of the Subcommission who now serves with the Committee on the Elimination of Racial Discrimination (CERD). Mr. Bossuyt told the panel that he had sent a questionnaire to Governments and was awaiting replies, and that the preliminary document focused on the presence of the concept of affirmative action in international law, on the question of limits to affirmative-action efforts, and on definitions.
Subcommission Experts suggested, among other things, that future reports pay greater attention to practical steps taken and results achieved through affirmative-action projects in various countries; to the establishment of a clear understanding of what affirmative action was that could help countries where the issue had not been broached or was not well-known; and to the application of the concept to indigenous peoples and to minorities.
The panel also was updated on work under way on a study on the rights of non-citizens by Expert David Weissbrodt.
Earlier in the meeting the Subcommission concluded debate under its agenda item on the question of human-rights violations in any country, hearing a flurry of rights of reply from States taking issue with the assertions of Experts, non-governmental organizations, and country representatives who had made formal remarks on situations around the world.
The International Labour Organization and the NGO International Human Rights Law Group spoke at the morning meeting, as did Subcommission Experts Miguel Alfonso Martinez; Asbjorn Eide; Erica-Irene A. Daes; Louis Joinet; Fan Guoxiang; Yeung Kam Yeung Sik Yuen; Rajendra Kalidas Wimala Goonesekere; David Weissbrodt; Godfrey Bayour Preware; and Halima Embarek Warzazi.
Azerbaijan, Nepal, Indonesia, Democratic People's Republic of Korea, Pakistan, Nigeria, Bhutan, and India spoke in exercise of the right of reply.
The Subcommission will reconvene in plenary at 10 a.m. on Monday, 7 August, to continue its discussion of the elimination of racial discrimination.
Issues relating to the elimination of racial discrimination
Under this agenda item the Subcommission has before it a preliminary report (E/CN.4/Sub.2/2000/11) submitted by Expert Marc Bossuyt on the concept and practice of affirmative action, which notes that a questionnaire, reproduced in an annex to the report, was sent by the Office of the High Commissioner for Human Rights to Governments, international organizations, and non-governmental organizations, but that time was too short to expect responses in time for issuance of the report. The document therefore contains a first section providing an analysis of international conventions containing provisions relating to affirmative action and a second section examining the limits international law sets on affirmative-action measures.
Statements on the question of human rights violations in any country
MIGUEL ALFONSO MARTINEZ, Subcommission Expert, said that now, since the changes ordered by the Commission on Human Rights, the positions of Experts on item 2 should change from emphasis on civil and political rights to a more balanced focus on all human rights, including economic, social and cultural rights, which after all were indivisible and interrelated. Perhaps interest in human-rights violations would now no longer be aimed only at countries of the so-called Third World. Such violations weren't the negative "privilege" only of the Third World. For example, there were recent activities in Germany that had led to concerns that political parties with neo-Nazi concerns might have to be restricted. There were serious concerns in the United States, such as the execution of minors and the mentally disabled, the bias obvious in the characteristics of the prison population, the problems experienced by indigenous peoples. There was the situation in Austria which had given rise to concern in the European Union.
So the Subcommission's analysis should not be confined to countries of a given region -- violations could occur anywhere in the world, could occur even in operations of a military nature, as in Kosovo, initiated for so-called humanitarian purposes. In fact the military operation there had been a clear violation of international law, of Chapter 9 of the United Nations Charter. In the federal Republic of Yugoslavia, in fact, there had been numerous human-rights violations committed by these humanitarian forces. This particular Expert would never acquiesce in cloaking violations of the UN Charter under the misleading term "humanitarian operation".
ASBJORN EIDE, Subcommission Expert, said that much had improved in the field of human rights. Brutal and repressive regimes were slowly disappearing and most Governments were now democratic and pluralist. Violations of human rights these days had different characteristics. The notions of prevention, respect, protection, sanction and remedies were useful frameworks for improving human rights. The United States had a mixed record -- sometimes at the forefront in the struggle to uphold human rights, but unfortunately very slow at ratifying conventions, such as the Convention on the Rights of the Child. There was a lack of effective protection and prevention of human rights violations.
Multi-ethnic or multi-religious societies were more commonly violating human rights. The situations in Afghanistan, Pakistan and Turkey were sources of concern, as were the ethnic tensions in Sri Lanka and Kosovo. Extreme poverty and inequality in a world of plenty was another reason for human rights violations. The problems in Africa could partly be explained by the unfavourable economic situation. The eradication of poverty was pivotal for promoting human rights. Concern was raised as to the prevalence of the arms trade in Africa, where the economic benefits went to the rich and the costs were suffered by the poor. Follow-up should play a more important role in the work of the Subcommission, particularly in the following countries: Mexico, Peru, Colombia, Belarus, Democratic People's Republic of Korea, Indonesia, Bhutan and Togo. The Subcommission was no longer allowed to adopt resolutions where names of specific countries were mentioned but it had a duty to, at least, address issues which required attention.
ERICA-IRENE DAES, Subcommission Expert, said massive and systematic violations of human rights continued to occur around the world in spite of the collection of international and regional instruments intended to prevent such abuses. She supported the specific comments already made on various situations by her colleagues Mr. Weissbrodt, Mrs. Hampson, and Mr. Eide.
One of the most inhuman institutions resulting in violations was the "embargo", and she had drafted a modest resolution, which she would circulate to her colleagues, which recommended, among other things, that a workshop be organized by the Office of the High Commissioner for Human Rights, to be attended by experts, with the purpose of examining the consequences and implications of such embargoes on human rights, particularly the human rights of vulnerable groups such as children, women, sick persons, the elderly, minorities, and indigenous peoples. Another serious contemporary international crime was military occupation by foreign forces of a land or a part of a land. In some countries, military forces, paramilitary groups, armed civilians, and others abused authority, oppressed people and persecuted human-rights defenders. It was time for an effective international reaction to such crimes.
Finally, she hoped the Subcommission would continue to propose and adopt ways to implement the prevention and protection of so-called "third generation" human rights such as the right to self-determination, the right to development, and the right to a clean environment.
Rights of reply
A representative of Azerbaijan said in a right of reply that the statement of Armenia under item 2 contained inadmissable remarks concerning Azerbaijan. It was an irresponsible statement and an unprecedented attempt to take over the United Nations bodies. Before speaking in front of the Subcommission and its human rights experts, the speaker of Armenia should have educated himself as to facts and the procedures of the Subcommission. The speaker's interpretation of facts had nothing to do with the current interpretation of international human rights law. It would have been more appropriate to refer to Security Council decisions on this topic.
A representative of Nepal, speaking in right of reply, said statements made by Bhutan and the Lutheran World Federation required a response to clarify the position of Nepal. About 100,000 refugees from Bhutan, some of whom were civil servants, diplomats, teachers and hard-working farmers, had been forced to leave their homes and live lives of indignity as refugees in Nepal, and this situation had continued for some 10 years. Nepal had always sought a durable solution that would allow these refugees to return to their country of origin, and since resumption of bilateral talks with Bhutan Nepal had made every possible effort to begin field verification as the first step to resolving the problem. Nepal also had made every effort to accommodate the often-inflexible Bhutanese stand on technical and other details of joint field verification, but the talks had ended rather inconclusively. Nepal had provided asylum to these refugees on humanitarian grounds and at great expense, and urged everyone in the international community to help in resolving the matter so that the refugees could return to their home country in safety and dignity and without further delay.
A representative of Indonesia, speaking in right of reply, said the multi-dimensional crises inherited from previous regimes by the current Government were complex and often driven by local economic and social disparities; the Government was taking strong and careful steps to address each of these problems and was favouring an approach based on dialogue rather than confrontation to put an end to conflicts such as those in Aceh, the Moluccas and Papua. In the face of increasingly ferocious clashes in the Moluccas, a state of emergency had been imposed and all steps were being taken to restore order and to prevent suspicious elements from entering the territory and smuggling arms in; the Government was taking all necessary measures to ensure that members of the Army did not side with any of the factions and had taken strong action against any who violated the code of conduct. With regard to Aceh, a joint understanding for a humanitarian pause had been signed between the Government and the GAM to allow delivery of humanitarian assistance.
A representative of the Democratic People's Republic of Korea said in a right of reply that Mr. Yokota's allegations regarding disappearances of human rights defenders in Japan had been unsubstantiated. These problems of disappearances had existed in Japan for a long time and had nothing to do with the Democratic People's Republic of Korea. In fact it was the Democratic People's Republic of Korea was the victim, where 6 million Koreans had been forcibly used as labourers by wartime Japan and thousands of Korean women had been forced to serve as sex slaves.
A representative of Pakistan, speaking in right of reply, said no procedural device could prevent the people of Pakistan from upholding the right to self-determination of the people of Kashmir, who had been promised that right by the UN Security Council through a free and fair plebiscite; that promise remained to be carried out, and it was the duty of United Nations human-rights bodies such as the Subcommission to help rather than hinder the implementation of Security Council resolutions. He had heard several statements about Pakistan's role in Kashmir. He had visited Kashmir, had seen the conditions there and had seen the condition of those who had fled across the line of control, had seen the artillery shells fired across that line by Indian forces. The Subcommission's rule on discussion of this item did not apply to disputed territory; the Kashmiris, if they had the right to speak, would join their voices with that of Pakistan. Pakistan would continue to defend its right to speak on the situation in Kashmir.
A representative of Nigeria said in a right of reply that the International Commission of Jurists when mentioning Nigeria as one of the five countries having executed children under the age of eighteen through the death penalty, was misinformed. The statement was totally false. The death penalty in relation to those under eighteen years of age was non-existent. The Children and Young Persons Act had abolished this practice in the 1950s. The Government of Nigeria acted in accordance with Nigerian law, and had not at any time acted against its legal constitution. Hopefully this clarification would bring this misconception to a definite close.
A representative of Bhutan, speaking in right of reply, said the statement by Nepal had incorrectly portrayed the situation of those in the camps in Nepal and the nature of negotiations under way; Bhutan hoped that Nepal was not seeking to undermine the recent progress in the bilateral talks between the two friendly countries.
A representative of India, speaking in right of reply, said India appreciated that the Subcommission's Experts had tried hard to observe the rules of the session and had tried to keep countries from engaging in slinging matches under debate on item 2. Yesterday the delegate of Pakistan had been interrupted when he had tried to make unfair and completely unsubstantiated allegations against India in clear violation of these rules. Today, unfortunately, he had tried to do the same thing in the guise of a right of reply. What the distinguished delegate of Pakistan had said this morning should be expunged from the record.
A representative of Nepal, in a second right of reply, said the Government of Nepal was in the process of talks with Bhutan and believed in the positive outcome of those talks. Nepal wished to start the process of the return of the refugees as early as possible.
A representative of Pakistan, in a second right of reply, said the actual title of the item under discussion was "Question of the violation of human rights and fundamental freedoms. . . in all countries with particular reference to colonial and other dependent countries and territories". Jammu and Kashmir was disputed territory under the resolutions of the UN Security Council. If there was any doubt, he would like a legal opinion from the UN legal adviser on this issue. Jammu and Kashmir was not a part of India, it was not a part of Pakistan, it was disputed territory. The Subcommission had a duty to carry out debate on just this subject; the new rule seemed expressly designed to thwart discussion of this issue.
A representative of India, in a second right of reply, said that all observer delegations should adhere to the procedural rule and only speak of human rights violations in their own countries. Pakistan should not be an exception. India again asked that the Pakistani statement be withdrawn from the record.
LOUIS JOINET, Subcommission Expert, said he wished to emphasize that in his statement referring to Austria, he had not criticized the people or the Government, but simply the leader elected; and he would add that a similar situation existed in France, where Jean-Marie Le Pen had been elected. Perhaps he and Mrs. Warzazi could discuss the matter between themselves.
Statements on elimination of racial discrimination
GLORIA MORENOFONTES CHAMMARTIN, of the International Labour Organization, said that one focus of the ILO in recent years had been addressing discrimination against migrant and ethnic minority workers, and the ILO had launched the project to that end entitled "Combating discrimination against (im)migrants and ethnic minority workers in the world of work" which aimed to document and seek remedies to discrimination in access to employment in Western Europe and North America.
The ILO had initiated a process to identify "best practice" models that could be applicable, replicable, sustainable and effective in differing national legal, historical and cultural contexts. ILO believed that the World Conference against Racism should reinforce the relevance and urgency in outlawing xenophobic discrimination and intolerance in national laws and jurisprudence and suggested that the responsibilities for the implementation and follow-up of strategies and remedies be shared among various international agencies.
MARC BOSSUYT, Special Rapporteur and former Subcommission Expert, introducing his preliminary study on the concept and practice of affirmative action (E/CN.4/Sub.2/2000/11), said the Committee on the Elimination of Racial Discrimination (CERD), on which he now served, had originally suggested this topic as a subject for study by the Subcommission. The preliminary report before the Subcommission was a start; he would base much of his future work on the replies of States and others to questionnaires; the questionnaire he had first drawn up was appended to the report; it had just been sent to Governments and it was too early for them to provide replies.
The current document focused on affirmative action in international fora in general; the concept was covered by special measures in various human-rights conventions; such measures were not intended to be discriminatory; he had attempted to list such provisions and to shed light on their specific meanings. He also had looked at the case law of such monitoring bodies as the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, CERD, and the Committee on the Elimination of Discrimination against Women (CEDAW). In the second part of the report he had focused on one of the stickiest problems in the field -- the matter of the limits on affirmative action. Among other things, such measures often were termed temporary, which raised the question of how one decided when they were no longer necessary. Ambiguities in concept and terminology were also a problem, and he had tried to clarify some of these ambiguities. Decisive in determining whether discrimination had occurred, in his opinion, was the linkage between the reason for the action that might be discriminatory and the right that had been infringed by it.
LOUIS JOINET, Subcommission Expert, said that all those coming up against the issues described in the report had found it a very difficult topic. There were major problems which had been described in the report, and it offered several solutions. In France, he had just been involved in a case on the right to self-determination of the people of New Caledonia, where the report had come in handy.
FAN GUOIXIANG, Subcommission Expert, said Mr. Bossuyt's report was comprehensive and impressive. He had a question. The concept of affirmative action in eastern countries such as China, while it existed, might not have the same meaning or name. The first time he had heard the term was in the Subcommission, and he'd had to look it up in an English dictionary, finding the term had originated in the United States. Its origin seemed to have been confused, and to normal people in China the term in that sense was incomprehensible. He hoped Mr. Bossuyt would study affirmative action not only from the point of view of international law; he'd like to know the social and cultural background of its manifestation in many countries before it was set in the context of international law. He'd also reviewed the questionnaire sent to Governments, and wondered how different Governments would interpret the terms it contained, of if they'd interpret them in the same way, and if the true meaning of their responses could be reliably determined.
ABJORN EIDE, Subcommission Expert, said there was a need to make some distinctions to achieve a just equality, and he would provide some written suggestions. Provisionally, it was useful to make a distinction between affirmative action and protective measures which were more long-term in nature. But the drawing of the dividing line could be difficult. As long as one was dealing with material issues, affirmative action was a simple idea. It was when dealing with cultural, societal and linguistic differences that the topic became more difficult to grasp. More development was required on the dividing line between various phenomena and it was necessary to take into account the international instruments which had already emerged in this field, which could be helpful in providing direction. Legal distinctions were needed with regard to minority groups.
YEUNG KAM SIK YUEN, Subcommission Expert, said Mr. Bossuyt's paper made a forceful, interesting, and necessary distinction in saying that affirmative action could not in itself be discriminatory. There were references to the existence of the notion of affirmative action in international law, stressing that the concept was very much present internationally. In fact, affirmative action was a formidable device that had been used to better the situation of human rights.
If one imagined a country where an oligarchy had had wealth, land, and Government in its hands, and overnight that country gained independence and overnight the country had to meet the demands of a poor, uneducated, majority population. . . Well, he knew a country close to his where this had occurred, where if it had not been for the concept of affirmative action, it would have been impossible for the majority population to have the training, for example, to provide qualified people to serve in courts of law; it had to be remembered that in such situations people were very impatient. Or, for that matter, who would employ a handicapped person if there was plenty of availability of labour from non-handicapped persons? How could you offer to such a person a fair chance to be employed if he had to compete with others? In a country he knew, a law was passed where if a business employed a handicapped person, for, say, every 100 francs spent on that person, for tax purposes the business could claim twice that amount. Overnight, people who had had no chance of jobs had found themselves employed in jobs they could perform and had enjoyed all the subsequent benefits of useful, dignified employment. He hoped Mr. Bossuyt could focus in his study in part on such practical causes and effects.
RAJENDRA KALIDAS WIMALA GOONESEKERE, Subcommission Expert, commended the mention of the historical background which led to the recognition that there was a need for affirmative action within the notion of equal opportunities. However, it was important to note that when such schemes were adopted, someone would be hurt, irrespective of the noble motives.
Sri Lanka was an example as of unforeseen results to affirmative action within the educational system. There was high competition to get into university and the system was based on meritocracy, the marks which had been scored. But at one point, it was realized that one could not go only on merit as this would continue to isolate some of the rural, disadvantaged areas. Some places were then distributed on the basis of area. The result was that it became possible for low-marks rural students to get admission to universities regardless of their academic achievements. One of the results was that representation of people from the Tamil community dropped, which was seen as a permissible form of temporary affirmative action in the interests of the society at large. The spill-over effect was that the Tamil community charged that this was a deliberate attempt to reduce Tamil students' opportunities. In Sri Lanka, the system had been a starting point for separation and ethnic tension. If there was no clear understanding of a problem, affirmative action could have disastrous consequences. There was always a positive and negative side to affirmative action.
ERICA-IRENE DAES, Subcommission Expert, said the preliminary report on affirmative action was mainly based on the fundamental principles of equality and non-discrimination, and the inclusion of international reflections of the concept of affirmative action was proper and important. She approved of the reference to an Australian case in paragraphs 27 and 28, which really had been a milestone in the evolution of aboriginal land-rights law. After 1978 there had been other, more recent judgments on the matter, which she would submit to Mr. Bossuyt for his consideration, if he requested. She had other information on "positive discrimination" for indigenous peoples she could provide to the Special Rapporteur, and she requested him to pay more attention in his work to affirmative action as it applied to indigenous peoples.
LOUIS JOINET, Subcommission Expert, said it was true that there could be negative sides to affirmative action. When the end of affirmative had been achieved, the measure to accomplish affirmative action had to be ended. Regarding specific situations, the report consisted of many case law examples, and Mr. Joinet wanted to know if there was a relationship between affirmative action and the exercise to the right to self-determination? With regard to States having annexed others, there were often settlement policies installed. Would some kind of affirmative action be used in these situations so as to not falsify the balance of an electorate?
DAVID WEISSBRODT, Subcommission Expert, speaking on an ongoing study on the rights of non-citizens, said that following his presentation of a working paper on the topic last year, he had received numerous useful comments and would make available informally a draft of a further report to Subcommission members who were interested. The document examined the concluding observations and comments of CERD, providing an in-depth example of how the rights of non-citizens were evaluated within the context of the Convention on the Elimination of Racial Discrimination. The draft document also reviewed the jurisprudence of such international bodies as the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, CEDAW, the Committee on the Rights of the Child, and within the context of the International Convention on the Protection of All Migrant Workers and Members of Their Families. He also had looked into the actions of regional institutions.
The draft offered among its conclusions that any approach to discrimination against non-citizens should take into account such criteria as different categories of non-citizens, different categories of rights, countries at different levels of development, and different rationales for distinctions. He hoped his work would be useful to CERD and other UN machinery and suggested that the Subcommission cooperate closely with CERD in preparing a comprehensive examination of the rights of non-citizens. One key goal of the study should be the creation of a standard to ensure than any distinctions were legitimate and did not constitute discrimination. He reiterated his concern that continued discriminatory practices against non-citizens demonstrated the absence of effective standards of that sort.
GODFREY BAYOUR PREWARE, Subcommission Expert, said that racism, xenophobia and hostility towards migrant workers were manifestations of complex fears or suspicions. Regrettably, two World Conferences against Racism and Racial Discrimination organized by the United Nations in 1978 and 1983 and the proclamation and declaration by international bodies over three decades had failed to arrest racial discrimination. There had been some successes, such as the historic change that had taken place in South Africa. The transformation was still on-going in South Africa and gave cause for hope; and developments in other parts of the world at this time underscored the need for sustained initiatives by the Subcommission.
Xenophobia could arise not only from misconceptions about the colour, origins or lifestyle of another person, but also from fears of encroachment of economic prospects. A xenophobe failed to see that migrant workers had a right to live and the ability to contribute constructively to a community. Unfortunately, racial bigots had recognized the vast opportunity offered in this regard by the Internet, print and electronic media. The number of racist websites had risen in the United States from 1997 to 1998 by 64 per cent, while in Germany, the increase was 500 per cent. The European Union had sent a clear message to those who advocated xenophobia by introducing pre-emptive sanctions against a member nation that had accommodated in its Government xenophobic tendencies. There could be no clearer demonstration that Europe recognized this phenomenon as dangerous and unacceptable. Governments had a major responsibility for creating a social environment where this phenomenon was no longer accepted.
JULIAN BOND, of the International Human Rights Law Group, said he was Chairman of the National Association for the Advancement of Colored People, or NAACP; the organization had been founded in 1909 and was the oldest and most accomplished civil rights organization in the United States. The NAACP wished to highlight grave deficiencies in the U.S. criminal justice system, although it also should be pointed out that racism pervaded many other aspects of life in the United States. The NAACP had submitted a call to action to the United Nations, which had been distributed.
The call to action said, among other things, that racial discrimination in the U.S. was particularly pernicious because its new forms were often obscured under guises such as the "war on drugs" and crime prevention; that racial discrimination was endemic in the U.S. criminal justice system from initial suspicion to sentencing; and that African-American men made up 6 per cent of the U.S. population but 50 per cent of the U.S. prison population. It urged the United Nations to call on the U.S. to end such discrimination, to examine the problem of racial bias in its justice system; and to consider missions to the country by relevant United Nations Special Rapporteurs. It further called on the UN to expressly include the issue of race bias in the U.S. criminal-justice system as an agenda item of the upcoming World Conference against Racism.
HALIMA EMBAREK WARZAZI, Subcommission Expert, said the phenomenon of racism was still prevalent in the world. Indigenous people, people of colour and migrant workers were still victims of discrimination and racism. Racism appeared to have become banalized. The situation of discrimination in the United States of America was particularly alarming and continued to be a fact of life in America. The situation in Europe had also been getting worse and worse; there were not only neo-Nazi groups but actual parties and they were gaining power and positions in Government. There was an increase in the west in particular of an ideology which consisted of insulting, hurting and burning. The Internet was unfortunately exploited to this end. The World Conference against Racism had to address these alarming trends, not only in the West but worldwide. Long-term and short-term solutions were needed which could effectively combat all forms of racism.
In France a law had been passed concerning those denying the Holocaust; why could not such a law cover racist articles? Particular protection of migrant workers should be one of the main raisons d'etre for the Subcommission. Migrant workers were a particularly vulnerable group and the trade in illegal workers had to end. Migrant workers needed international protection as they were the only group not protected by international covenants. It was suggested that the day a convention on migrant workers was adopted should be declared a day of solidarity with migrant workers.
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