SUB-COMMISSION ADOPTS RESOLUTIONS ON RIGHT TO RETURN, HUMAN RIGHTS CONFERENCE

Sub-Commission on the Promotion
and Protection of Human Rights
54th session
15 August 2002
Morning



Discusses Reports on Fostering Democracy,
Human Genome and Human Rights



The Sub-Commission on the Promotion and Protection of Human Rights this morning adopted resolutions on the right to return of refugees and internally displaced people and the tenth anniversary of the World Conference on Human Rights. It also requested one of its Experts to prepare a working paper on issues and modalities for the effective universality of international human rights treaties, and another to produce an expanded working paper on human rights and bioethics.
During the meeting, Sub-Commission Chairman Paulo Sergio Pinheiro reported that Javier Suarez Medina -- a Mexican national whose scheduled execution in the United States had been opposed in a Sub-Commission Chairman's Statement contending that Mr. Medina's trial had been flawed because he had been denied consular help -- had been executed by lethal injection on Wednesday, in Texas, despite numerous requests received by the United States Government for a stay of execution. A representative of Mexico read out a statement regretting the execution.
In a resolution on the right to return of refugees and internally displaced people, the Sub-Commission urged all parties to peace agreements and voluntary repatriation agreements to include implementation of the right of return in safety and dignity, as well as housing and property restitution rights.
The resolution on the tenth anniversary of the World Conference on Human Rights said, among other things, that the anniversary should constitute an important step towards the effective realization of the universal ratification of international human rights instruments.
The Sub-Commission also discussed a working paper on the promotion and consolidation of democracy. Introducing the report, Expert Manuel Rodriguez-Cuadros said that among other things, the legitimacy of a democratic State and its people lay in its popular sovereignty, which was complimented by the ability and obligation of the State to respect the human rights of its citizens. Experts responding to the document noted the lack of an accepted definition of "democracy" and debated over what such a definition could contain or if it was even attainable. Following the discussion, the Sub-Commission approved a decision requesting Mr. Rodriguez-Cuadros to prepare an expanded working paper on the promotion of democracy.
And Antoanella-Iulia Motoc presented a working paper on the Universal Declaration on the Human Genome and Human Rights, saying among other things that the human genome was the heritage of all humankind and a balance had to be struck between granting freedom of research and respecting human rights, vulnerable groups, and intellectual property. In the resulting debate several Experts expressed concern that the benefits and treatments resulting from research on the human genome should be available to all, and not only to the rich and powerful, and that such treatments and knowledge should not be dominated by private corporations.
Measures were also adopted on the membership of the Sub-Commission's Working Groups, and on rearranging the Sub-Commission's agenda in order to give equal attention to all items.
Debate also continued under the Sub-Commission's agenda item on specific human rights issues.
Speaking in substantive debate during the morning session were Sub-Commission Experts Miguel Alfonso Martinez, Fisseha Yimer, Asbjorn Eide, El Hadji Guisse, Soli Jehangir Sorabjee, Soo Gil Park, Francoise Jane Hampson, David Weissbrodt, and observers from Pakistan and the International Labour Office.
Non-governmental organizations (NGOs) delivering statements were the Indigenous World Association; the Indian Movement "Tupaj Amaru"; and the World Union for Progressive Judaism.
The Sub-Commission will reconvene at 3 p.m. to continue its debate on specific human rights issues.

Statements on Working Paper on the Promotion and Consolidation of Democracy
The Sub-Commission has before it a working paper by Manuel Rodriguez-Cuadros on the promotion and consolidation of democracy (E/CN.4/Sub.2/2002/36). The working paper consists of sections on human rights, democracy and the rule of law; the gradual institutionalization of an international regime for the promotion and protection of democracy; the emergence of an international regime on democracy and human rights - the right to democracy; a holistic view of the inter-relationships between democracy, human rights and the rule of law that covers all human rights, including economic, social and cultural rights; and the realization of human rights and the quality of democratic institutions - governance, responsibility and the fight against corruption. Some of the final thoughts of the working paper conclude that globalization, regardless of its ambivalent effects on the economic and social lives of peoples, also promotes values like democracy and human rights, which increasingly enjoy international protection. It also states that democratic systems of government in many countries are faced with problems related to their functioning, representativeness and legitimacy. Corruption, especially when it becomes systematic and affects government institutions, is a serious threat not only to democracy but also to the rule of law itself, because of its implications for impunity. The paper recommends that international action adopts a holistic approach and recognizes the links between democracy, human rights, the rule of law, good governance and the integrity of public authorities, and structural supports for democracy such as the fight against poverty, development, social cohesion, inclusive social policies and the integration of women in the political process and productive activities.
MANUEL RODRIGUEZ-CUADROS, Sub-Commission Expert, presented his working paper and said that he had been entrusted to draw up a study on the promotion and consolidation of democracy. The document had been submitted for the consideration of the Sub-Commission with the aim to provide a conceptual framework for democracy within international humanitarian law and inform about current regulations in international human rights instruments for the promotion of democracy. The paper used a legal vantage point and considered the links in the standard setting areas between democracy and human rights, and the regulations that already existed. In an attempt to identify general trends for the international legal system for human rights, an analysis of normative mechanisms for the protection of human rights had been undertaken. The paper also looked at the possibility of moving towards binding obligations of States for the promotion or protection of democracy. The study used a holistic approach on democracy and human rights and aimed to transcend fragmentary approaches. Finally, the study looked at factors undermining the legitimacy of certain democratic governments, such as corruption.
Human rights in the contemporary world were both a value system and a legal system, based on the considerations that human dignity involved certain rights. The legitimacy of a democratic state and its people lay in popular sovereignty, he stressed. It was complimented by the obligation of the State to respect the human rights of individuals by guaranteeing their rights with respect to the rule of law. The rule of law was the basic underpinning of democracy through material, functional, temporal limitations of the power of the State. From an international perspective, democracy was recognized as a right in several instruments. The characteristic of the current stage between human rights and democracy was the development of standards that had been agreed upon between States, implying a collective action for the promotion and consolidation of democracy. Democracy must be achieved through collective action, he stressed. The study had observed the growing international trend towards democracy and identified specific obstacles, such as corruption.
MIGUEL ALFONSO MARTINEZ, Sub-Commission Expert, said Mr. Rodriguez-Cuadros had rightly identified the problem of defining democracy; it was a term that could apply to all sorts of political systems and situations. It was difficult to achieve what was conceived of as democracy unless there was already a sense of "democratic society", in which equal opportunities existed for participation in public life. Elections might be "democratic", but the resulting Governments often had difficulties narrowing major gaps in society and in income. Often, moreover, Governments were elected democratically but soon afterward majority support for them disappeared.
FISSEHA YIMER, Sub-Commission Expert, drew attention to paragraph 9 on the difficulty to define democracy and asked for an elaboration on un-democratic regimes that were described as democratic. It had been stated that it was even more difficult to define democracy in international relations, could this be elaborated upon too, he said. In the final thoughts, paragraph 2 said that globalization promoted democracy and human rights. This needed to be elaborated upon. In paragraph 3 there were some contradictions concerning potential clashes between national cultural and social values and the spread of democracy.
ASBJORN EIDE, Sub-Commission Expert, said he agreed that a holistic approach was needed to promote democracy, and there had been evolution in the understanding of democracy, affected by the development of human rights -- it had expanded democracy's "meaning". He wondered about the second conclusion of the report, that globalization promoted values such as democracy and human rights; it was important to be more precise about what was meant by "globalization" in this context -- economic globalization or social globalization, in which human rights standards were expanded? It seemed to him that economic globalization sometimes ran counter to the abilities of States to promote democracy and human rights by limiting their powers and their capacities to meet the basic needs of their citizens. He hoped Mr. Rodriguez-Cuadros could elaborate more in his next paper on this possible tension between different aspects of globalization.
EL HADJI GUISSE, Sub-Commission Expert, said that concerning globalization of the economy, that it might be worthwhile to analyze today's social order. Elections no longer promoted democracy, he said. Many leaders had proved to be dictators in the long run even though they had been democratically elected. The right to vote rarely extended to a real democracy. Globalization would never bring about the economic world order wished for.
SOLI JEHANGIR SORABJEE, Sub-Commission Expert, said it was true that definitions of democracy were difficult. But a distinguished United States Supreme Court Justice had once said in relation to obscenity that he could not define it but he knew it when he saw it. Similarly, non-democracies were recognizable on sight -- they lacked such things as freedom of expression, freedom of assembly, and independent judiciaries. There also could not be true democracy where there were vast inequalities in income and wealth in society. Without a reasonable level of equality, democracy became claptrap and a slogan.
SOO GIL PARK, Sub-Commission Expert, said that it was possible to determine whether any system was democratic or not. Everyone knew that the word democracy was open to several interpretations. However, the manner in which democracy had been defined in the study was commendable. He associated himself with previous speakers concerning globalization.
VLADIMIR KARTASHKIN, Sub-Commission Expert, said it was no coincidence that practically everyone who had spoken had raised the question of the definition of democracy. Obviously there were different forms. Yet there were general characteristics inherent in all democratic systems, and using those perhaps a definition could be arrived at. For example, it was worth exploring whether or not democracy was compatible with a one-party system, or with elections in which there were no opposition candidates. The report had some contradictions and shortcomings and gaps, and he would provide further comments to Mr. Rodriguez-Cuadros in writing.
RONALD BARNES , of the Indigenous World Association, said with regard to paragraph 21 that when speaking about free elections for indigenous people, democracy did not mean a thing. It only meant that you were taken away from your land, which went against the collective rights of indigenous people. If indigenous people were brought into the argument, a new paradigm would be needed. Regarding globalization, he stressed that globalization brought nothing to indigenous peoples either. Regarding cultural and social exceptions, he said that if indigenous peoples came to speak to him about their experience of democracy, their views would be represented in his future work.
IMTIAZ HUSSAIN (Pakistan) said it was worth noting that there were contradictions about what constituted democracy; certain basic features could be present, but it was not the form but the essence which counted. In several countries, democratically elected Governments actually had propagated hatred against minorities, and that sentiment had been used to make political gains among the majority and to bolster sagging political support. And was it enough for a Government to be elected if it did not respect its international obligations and violated United Nations standards and resolutions? Was such a Government democratic?
LAZARO PARY, of the Indian Movement -"Tupaj Amaru", said that for indigenous peoples, since the conquest of their territory, there had been no democracy. In his community he had never exercised the right to vote. They had lived for centuries under dictatorships. What was democracy for, he asked. Democracy only served the dominant parts of society and meant dictatorships to indigenous peoples.
MANUEL RODRIGUEZ-CUADROS, Sub-Commission Expert, responding to comments on his paper, said he had always been aware that democracy by its nature was a delicate subject. But it should not be left aside simply because it was sensitive and complex. The problem of a definition was interesting, but he thought Mr. Sorabjee's statement gave a kind of answer; that you knew when it was not there. He had not attempted a definition but had tried to identify the historical and specific and legal components and looked at the way these factors had been reflected in documents at the international level. It was clear that there were certain elements that made up democracy; you looked for the presence or the absence of the elements. He thought it was clear that democracy was not incompatible with cultural specificity; it was widely thought of as a Western concept, but all regions of the world had made valuable contributions to the form and practice of democracy. Perhaps the report had been too "succinct" in its remarks about democracy and globalization. He certainly thought the globalization of the mass media had been helpful for democracy, by spreading valuable ideas quickly around the world.

Statements on Human Rights and Bioethics
ANTOANELLA-IULIA MOTOC, Sub-Commission Expert, presenting her working paper on the issue of the Universal Declaration on the Human Genome and Human Rights, said that at the beginning of the century, the word crisis had been heard more and more. There was also a crisis in philosophy, she stressed. However, philosophy had now been inspired by biology and new discoveries in that field. Human rights could interact with new discoveries in biology, particularly that of the human genome. From a practical point of view, this would help diagnosis and treatment of diseases. From the human point of view, there were other considerations, some of which were now included in a legal framework within the scope of UNESCO. The adoption of the Universal Declaration on the Human Genome by UNESCO had led to the development of several guidelines with regard to this issue.
Concerning human genome research, issues of prior consent and the research on genetic disposition were issues that needed to be considered. There were also several other matters to consider to do with the human genome. One of the issues she had investigated in her study was the fact that the human genome was the heritage of humankind. Furthermore, how could one have freedom of research whilst also respecting human rights, particularly with regard to cloning. Another problem was the situation of particularly vulnerable groups as well as issues to do with intellectual property.
EL HADJI GUISSE, Sub-Commission Expert, said the point was the question of gene therapies; it was necessary not to do the same thing with the human genome as the Northern superpowers had done with the moon and the sea; they should not keep the benefits to themselves. If the genome was the common heritage of humanity, the benefits resulting from research should be available to all, not just to the rich and powerful. It was a question of solidarity. There also was a risk that certain groups of vulnerable people would be used as guinea pigs for research; such discrimination should be prohibited.
FRANCOISE JANE HAMPSON, Sub-Commission Expert, said the possibility of eugenics reasons meant that safeguards needed to be in place immediately. There was a real risk that States might say that people must have an abortion if a fetus was ill. It was essential that States could not force abortions. It was important that the work in this area did not lead to the view that handicapped people were worthless.
ASBJORN EIDE, Sub-Commission Expert, said the questions raised in the paper would be very important in the future. What was happening in terms of research was that it was increasingly privatized and controlled by corporations. Even much public research was now influenced by corporations. Clearly the influence of these commercial interests would have great impact on access to the benefits of advances in science and technology related to the human genome.
DAVID WEISSBRODT, Sub-Commission Expert, said he had been impressed by the opening presentation and he shared the concerns that had been voiced. The forth issue brought up by Ms. Motoc, that of intellectual property, was very important. The privatization of this enterprise was of a great concern. Was it right to patent a human being? Was it ethnical? The thought of curing illnesses was tempting but could, potentially, lead to the cloning of human beings.
EL HADJI GUISSE, Sub-Commission Expert, said Ms. Motoc should look at the Convention on the Elimination of All Forms of Racial Discrimination in its study.
RONALD BARNES , of the Indigenous World Association, said that in Alaska, corporations were used as the mechanism for carrying out a consent process or procedure. They were the mechanism in place for taking genes for study, and his indigenous group was one of the groups they had taken genes from. Corporations also "purchased" the genes of flora and fauna, and went to indigenous elders and tried to extract their knowledge of how to use the flora and fauna for making medicine. Some indigenous peoples had no bones about giving this property away on behalf of other indigenous groups, when the knowledge or intellectual property belonged to all. These corporate groups seemed to be practising another form of colonization. They just wanted to make money off indigenous knowledge.
ANTOANELLA-IULIA MOTOC, Sub-Commission Expert, said the issue of the human genome and human rights was very important. There was a disadvantage of the many problems associated with the human genome and also the fact that there was relatively little human rights work on this issue. One advantage for the human rights environment was that there were some legal frameworks that had been put into place. There was a need to redistribute the fruits of the human heritage, and to ensure that the States that might further develop the human genome concept would share the positive results with developing countries. The question of eugenics had not yet come up, however, it was essential that a legal framework be established immediately. There was no single international regime covering this problem. Bio-securities also needed to be covered in this regard. The Convention on Human Cloning aimed to prohibit human cloning, however, it was important that this did not prevent the continued possibility of research on the human genome. Concerning discrimination, she stressed the need for a pre-existing legal framework which could prevent discrimination. Human rights activists needed to activate themselves, the way they had concerning access to HIV/AIDS drugs, when it came to the issue of human cloning.

Statement on Execution of a Mexican National in the United States
ERASMO MARTÍNEZ (Mexico) thanked the international community for its strong support and in showing respect for the right of Mr. Suarez Medina, who had been executed yesterday. The Office of the High Commissioner had taken valuable steps to prevent this execution. This was an irreparable form of punishment and Mexico totally rejected the death penalty. The Government of Mexico would continue to work for the respect of the right to consular advice. The Government of Mexico would also continue to support the work of the Sub-Commission in its struggle against the death penalty.

Action on Resolutions and Measures
In a resolution on human rights and bioethics (E/.CN.4/Sub.2/2002/L.44), adopted without a vote, the Sub-Commission requested Iulia-Antoanella Motoc to pursue her research, without financial implications, taking into consideration the comments made at the fifty-third session of the Sub-Commission, and to submit an expanded working paper to the Sub-Commission at its fifty-fifth session.
In a resolution on the right to return of refugees and internally displaced people, (E/.CN.4/Sub.2/2002/L.46), adopted without a vote, the Sub-Commission urged all parties to peace agreements and voluntary reparation agreements to include implementation of the right of return in safety and dignity, as well as housing and property restitution rights, consistent with the requirements of international law, in all such agreements. The Sub-Commission also urged all States to guarantee the free and fair exercise of the right to return to one's home or place of habitual residence by all displaced persons and to establish an enabling framework to enable return to take place in conditions of physical, legal and material safety and to restore full national protection of returning displaced person. In this context, States were urged to take measures to ensure the physical safety of returnees, to remove legal and administrative barriers to return, and to provide other legal guarantees for returnees, and to ensure non-discriminatory access to means of survival and basic services. The Sub-Commission recommended that the Commission on Human Rights adopt the text of the present resolution.
MIGUEL ALFONSO MARTINEZ, Sub-Commission Expert, said if there had been a vote - the wording of operative paragraph 2 would have prevented him from having vote in favour.
EL HADJI GUISSE, Sub-Commission Expert, said that the resolution must not serve to infringe on the sovereignty of States.
In a resolution on the tenth anniversary of the World Conference on Human Rights (E/CN.4/Sub.2/2002/L.48), adopted without a vote, the Sub-Commission expressed the wish that the tenth anniversary of the World Conference on Human Rights may constitute an important step towards the effective realization of the universal ratification of international human rights instruments and requested States to seize this opportunity to take stock of their commitment in this field, and, if they have made any reservations when ratifying these instruments, to re-examine them with a view to determining whether they can withdraw them or limit their scope. In a second part of the resolution the Sub-Commission regretted the Secretary-General's decision to charge a fee from users of the on-line version of the United Nations Treaty Service; urged the Secretary-General to allow members of the Sub-Commission and treaty bodies to have free access to the entire United Nations Treaty Series on the Internet, and requested the United Nations High Commissioner for Human Rights to consider practical means of enduring that non-commercial users have effective and free access to the on-ligne version of the United Nations Treaty Series.
In a resolution on issues and modalities for the effective universality of international human rights treaties (E/.CN.4/Sub.2/2002/L.49), adopted without a vote, the Sub-Commission decided to request Emmanuel Decaux to prepare a working paper, without financial implications, on issues and modalities for the effective universality of international human rights treaties, for submission to the Sub-Commission at its fifty-fifth meeting.
MIGUEL ALFONSO MARTINEZ, Sub-Commission Expert, said that the operative paragraphs of the resolution must aim to work towards the universality of the respect of international human rights instruments.
In a measure on the promotion and consolidation of democracy, adopted without a vote, the Sub-Commission requested Manuel Rodriguez-Cuadros to prepare, without financial implications, an additional expanded working paper on the subject for submission to the Sub-Commission at its fifty-fifth session.
In a measure on membership of Sub-Commission working groups, the Sub-Commission appointed the following as members:
Working Group on Minorities: Leila Zerrougui, Solihangair Sorabjee, Vladimir Kartashkin, Jose Bengoa, Asbjorn Eide, and alternates Cristiano Dos Santos Alves, Chin Sung Chung, Iulia-Antoanella Motoc, Miguel Alfonso Martinez, Kalliopi Koufa and Nikolaos Zaikos.
Working Group on Contemporary Forms of Slavery: Halima Embarek Warzazi, Abdel Sattar, Stanislav Ogurtsov, Paulo Sergio Pinheiro, Fried Van Hoof, and alternates Lalaina Rakotoarisoa, Khalid Aziz Babar, Victoria Sandru-Popescu, Florizelle O'Connor, Barbara Frey and Lammy Betten.
Working Group on Indigenous Populations: El Hadji Guisse, Yozo Yokota, Ms. Motoc, Mr. Alfonso Martinez, Francoise Jane Hampson, and alternates Christy Ezim Mbonu, Yoshiko Terao, Mr. Ogurtsov, Mr. Bengoa, David Weissbrodt, and Michele Picard.
Working Group on Communications: Fisseha Yimer, Chen Shiqiu, Mr. Kartashkin, Manuel Rodriguez-Cuadros, Mr. Weissbrodt, and alternates Ms. Zerrougui, Liu Xinsheng, Oleg S. Malguinov, Mr. Alfonso Martinez, and Mr. Decaux.
In a measure taken by the Sub-Commission, the Experts said they wished to give equal attention to all items of its agenda, and they took into account the results of the current and previous session at which consideration of item 6 did not receive appropriate attention. The Sub-Commission decided to consider agenda items at the fifty-fifth session in the following order: 1,2,6,3,4,5,7.

Statements on Specific Human Rights Issues
DAVID LITTMAN , of the World Union for Progressive Judaism, said that in January and August 1989, the Union had referred in a statement to the Commission and the Sub-Commission, and many times since, to the genocide 1988 Constitution of Hamas. The word Hamas meant fanaticism, the acronym for 'Islamic Resistance Movement'. Today, the Union would avoid ruffling feathers, as their detailed written statement provided examples of this Palestinian 'Mein Kampf', spawned by Sheikh Ahmed Yassin. The Hamas Charter offered stereotype images and was committed to a terrorist jihad ideology against 'the Jews'. This culture of hatred was repeated again and again in terror-incitement sermons at mosques in Gaza and elsewhere, often retransmitted on the Palestinian Authority's television.
The United Nations, Amnesty International and other non-governmental organizations had condemned the deliberate assassination of civilians as a 'crime against humanity'. The Union called on the High Commissioner and the Sub-Commission to address a solemn appeal to Muslim spiritual and secular leaders to utterly condemn this terrorist jihadist ideology. Such a condemnation should include the Hamas genocidal Constitution of 1988. A policy of silence on this specific issue by the OIC, by Muslim spiritual and secular leaders within those countries, as well as by United Nations bodies, implicitly condoned one of the greatest evils of our time. Muslims and non-Muslims alike must condemn the jihad ideology as a defamation of religion.
EL HADJI GUISSE, Sub-Commission Expert, said he objected to the statement just made. As a practicing Muslim, he knew his religion inside out. The assertions made and taken from the Koran by this speaker were inaccurate. He himself had never attacked any religion, but the speaker who had just finished had said things which were an affront to Islam and to Muslims. He should be asked never to repeat such statements. His assertions were absolutely fallacious.
SOLI JEHANGIR SORABJEE, Sub-Commission Expert, said he was not a Muslim but he was anxious about the proceedings in the Sub-Commission and said that they must not be converted into a theological debate using religious texts. This was not a theological conference but the Sub-Commission on the Promotion and Protection of Human Rights.
R. PLANT, of the International Labour Office (ILO), said a new ILO programme of action had been introduced to combat forced labour; it was established last November and now was becoming fully operational. Combatting forced labour always required firm political will, and was difficult because it often was hidden. Such labour was a development and poverty-reduction concern, in that bonded labourers and their families tended to be the poorest of the poor in developing countries. Forced labour and migration was a subject that must be high in the mindsets of all human rights and development practitioners. While security concerns might be paramount today, it was not acceptable to allow the closing of frontiers to foster the growth of trafficking intermediaries, drawing huge profits from an insidious form of human exploitation.
The ILO programme was new but was already active in different regions. The ILO aimed to have at least two major projects under way each year, and had begun in Brazil and Nepal. It was now working with the Government of Pakistan to support its national plan to eradicate bonded labour.
FRANCOISE JANE HAMPSON, Sub-Commission Expert, asked if the ILO currently had forced labour guidelines indicating best practices for a regulatory framework on the part of sending States and receiving States with regard to the rights of migrants? Was this something the ILO had, and if not, would the ILO need help from the Sub-Commission in setting up such a regulatory framework, she asked.
R. PLANT, of the International Labour Office (ILO), said the ILO does not have formal guidelines as yet on this issue, but welcomed cooperation with the Sub-Commission on this and other aspects of forced labour. Among projects under development was one on forced-labour migration, and it was hoped that one outcome would be guidelines on combatting such trafficking.



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