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SUB-COMMISSION CONTINUES DEBATE ONECONOMIC, SOCIAL AND CULTURAL RIGHTS
16 August 2006
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Sub-Commission on the Promotion
and Protection of Human Rights
16 August 2006
Discusses Reports on Transnational Corporations and Extreme Poverty
The Sub-Commission on the Promotion and Protection of Human Rights this morning continued its consideration of the question of economic, social and cultural rights, discussing reports on transnational corporations and extreme poverty.
Sub-Commission Expert El-Hadji Guisse, introducing the report of the Working Group on the working methods and activities of transnational corporations on its eighth session, said the Working Group had discussed ensuring the implementation of the rules on the responsibilities of transnational corporations and other business enterprises with regards to human rights. The Working Group also considered the responsibility of States in the implementation of the human rights of individuals.
Sub-Commission Expert Gaspar Biro, introducing his working paper on the role of the State in the guarantee of human rights with reference to the activities of transnational corporations and other businesses, said the Working Group had thought it would be useful to elaborate on concepts such as the inability or unwillingness of States to intervene in cases of human rights violations by transnational corporations. If the working paper was to be continued, one of the directions to follow would be looking for case studies: well-documented cases where the issue of complicity, unwillingness or inability of the State to react had been covered.
Chin-Sung Chung, Sub-Commission Expert, introducing the working paper prepared for the Working Group on transnational corporations on bilateral and multilateral economic agreements and their impact on the human rights of the beneficiaries, said the problem was the unequal nature of globalisation, with the race by poor countries to attract investment, resulting in positive elements such as the expansion of the market and increased capital flow, but also the negative results of giving enormous power to the transnational corporations, and a limiting of human rights, in particular with regards to the rights to employment, decent housing, and health, among others.
At the beginning of the meeting, a number of Sub-Commission Experts addressed the report of the Ad Hoc Group on the need to develop guiding principles on the implementation of existing human rights norms and standards in the context of the fight against extreme poverty, which was presented to the Sub-Commission yesterday. The summary of the report and the first part of the discussion can be found in press release HR/SC/06/8 of 15 August.
Taking the floor this morning were Sub-Commission Experts Emmanuel Decaux, Chin-Sung Chung, Vladimir Kartashkin, Yozo Yokota, Kalliopi Koufa, El-Hadji Guisse, Christy Mbono, Chen Shiqiu, Gaspar Biro, Jose Bengoa, Françoise Jane Hampson, Soli Jehangir Sorabjee, Ibrahim Salama and Antoanella-Iulia Motoc.
Also speaking were the representatives of International Movement ATD Fourth World, International Council of Women and Indian Movement Tupaj Amaru.
The next plenary of the Sub-Commission will be held this afternoon at 3 p.m. when it will conclude its debate on economic, social and cultural rights and take up its agenda item on specific human rights issues.
Statements on Human Rights and Extreme Poverty
EMMANUEL DECAUX, Sub-Commission Expert, said with regards to the organisation of work, the Sub-Commission had always stressed coordination with other bodies, and this week the Committee on the Elimination of Racial Discrimination was holding its session, and the Sub-Commission had always had a productive relationship with that body, and there should be official contact between the two bodies this year as well. It would also be very useful for the Chairman to send a letter to the President of the International Law Commission to reaffirm the interest of the Sub-Commission in participating in future seminars.
With regards to Mr. Bengoa’s report presented at the previous meeting, the substantive work was done openly and in consultation with non-governmental organizations and the report should be one of the outstanding results of the Sub-Commission’s work this year. The exercise had begun a long time ago. It was important for this Working Group to continue its work. With regards to the principles contained within the report, the priority was the effectiveness of human rights, which could not be abstract, but had to be real and effective rights for all, and this implied access to these rights, and none could be excluded. These rights were also indivisible. When analysing the effect of extreme poverty on human rights, it became clear that all human rights were affected. The point was to recognise the dignity of every human being, even if they were in a situation of marginalisation or stigmatisation. Collective rights, such as the right to development, should be a priority of the international community, but the situation of the individual should not be ignored. The struggle could not be conducted in a paternalistic manner: there had to be participation of those concerned, and an effort made to respond to their needs and particularities, rather than having globalisation which crushed individuals and peoples.
CHIN-SUNG CHUNG, Sub-Commission Expert, said the issue of women and extreme poverty had been treated in the report along with other categories of vulnerable groups, while the guidelines on extreme poverty stressed the need to see the issue separately. Stigmatization by extreme poverty was a source of concern and that vicious circle should be cut.
VLADIMIR KARTASHKIN, Sub-Commission Expert, said the document submitted after the work of the Group of Experts was very useful, and covered the rights of people living in extreme poverty. It deserved approval by the Council, but reading it, a number of questions arose, and the speaker agreed with Mr. Alfredsson as to who held the rights referred to in the document, namely, did it apply to only persons living in poverty, or all human beings. Should those living in poverty be given more rights, thanks to positive discrimination, or should they only hold the same rights as everybody else, the speaker asked. With regards to paragraph 14, the translation was not always perfect, and it was difficult to translate things, and the Russian and English text referred to “full citizenship”, and Mr. Kartashkin wondered what this meant. The paragraph did not answer his questions.
Some of the text gave rise to doubts, particularly as regarded certain provisions, in particular as there were questions as to whether people living in poverty had the same rights as other citizens. The position of the authors on this issue should be reflected somewhere in the document. The international community was developing, and therefore international legislation would continue to develop. Some States committed more refined violations of rights and of international law than others. The document was very good, but the speaker agreed with Mr. Decaux, and the Working Group had to have another look at the text and be very careful from the legal point of view. The text should be examined to remove discrepancies, and then the text could be sent to the Human Rights Council.
YOZO YOKOTA, Sub-Commission Expert, said that the basic assumption of the report as well as the guiding principles was the rights-based approach. That approach was compared to the usual approach to the issue of poverty, which was development. The difference between the rights-based approach and the developmental approach was that the rights-based approach considered extreme poverty as a human rights violation and therefore should be addressed immediately while the developmental approach addressed the issue of poverty as an economic issue and tried to solve it through economic development over several years. Through direct contacts with persons living in extreme poverty, it was found that those persons were deprived of practically all human rights, whether civil, political or economic, social and cultural. They were suffering daily from the deprivation of basic human rights and fundamental freedoms and even human dignity. Those hundreds of millions of people in extreme poverty were politically and socially isolated, daily suffering from hunger, thirst, ill health, loss of dignity, self-confidence and hope. Extreme poverty was not only an economic development issue but also a priority issue of human rights.
Any effort to address the issue of extreme poverty should reflect the views of the persons living in such a situation. Any policy formulation and its implementation should be carried out by full and effective participation of the representatives of the persons living in extreme poverty. Participation by the poor was a sine quo non for successful poverty eradication programmes. Since the persons in extreme poverty were deprived of all basic human rights and fundamental freedoms that were inseparable and indivisible, any policy, programme or activity to eradicate poverty should take a holistic approach. The drafting guiding principles were necessary for encouraging and empowering the poor to stand up and try with self-confidence and dignity to solve their own problems and difficulties accompanying extreme poverty by themselves.
KALLIOPI KOUFA, Sub-Commission Expert, said an excellent job had been done on this complex issue. Extreme poverty was among the most important challenges facing the modern world and national and international efforts to eradicate it should remain high on the human rights agenda of all. Mr. Decaux’s observations regarding methodology to revise, trim and improve the text were supported. The clarifications and underlining of the basic currents of the report was also appreciated. The suggestion in paragraph 25 that concerted efforts should be made to set in place a mechanism on the zones of extreme poverty and the conclusion in paragraph 32 about the rights approach to cover the responsibilities and duties of all stakeholders, in particular States, were both supported.
The draft guideline principles were very interesting, and Ms. Koufa said she was very much in favour of the standard-setting role of the Sub-Commission.
EL-HADJI GUISSE, Sub-Commission Expert, said the work done by the group might lead to a legally binding norm. The group that prepared the report on extreme poverty and human rights had seen the situation of extreme poverty from the biological rights angle in which the individual had the right to eat and drink and maintain a healthy body. The problem of food and shelter had been widely discussed in the report and other seminars organized for that purpose. States had the obligations to ensure that the individuals enjoyed at least their natural rights. The individual could take legal action saying that he or she did not have food. However, the State should enforce its legal systems to ensure that individuals were enjoying their rights. The world was increasingly producing victims of discrimination and violations. Pharmaceutical manufacturers, for example, refused to provide patent rights to others to produce cheap medicine that would have saved the lives of millions of people. That egoistic attitude was unacceptable.
CHRISTY EZIM MBONU, Sub-Commission Expert, said there should be a strong linkage between corruption and extreme poverty, as she had established in her papers, as the former engendered the latter. The text should contain a reference to this fact. One of the seminars should have been held in Africa, as it was the continent in which the situation was often most grave, as there was drought and conflict. Eight European Union countries had ratified the Convention against Corruption, and this should be put on record.
YOZO YOKOTA, Sub-Commission Expert, reacting to Ms. Mbono’s intervention, said that the seminar should have taken place in Africa for the group that prepared the report on extreme poverty and human rights. Conferences had been organized in Asia and Latin America on the issue of leprosy. The concern of organizing a workshop in Africa was taken well and such a workshop would take place in the future.
SHIQIU CHEN, Sub-Commission Expert, said Mr. Bengoa was to be thanked for his submission of such an excellent document. The report and the guiding principles on the existing implementation of human rights norms and standards were self-evident. He had two issues with the text of the report itself: many paragraphs and articles concerned legal issues, judicial issues, and issues of representation; and the guiding principles articles did not have a strict legal binding effect. Mr. Chen believed that if the Sub-Commission was to implement effectively the guiding principles, they should be closely linked up to national legal conditions and judicial provisions. Countries were required in the report to take special measures, but this was not enough. If the guiding principles were in conflict with the laws of countries, then the latter would act in compliance with their laws, but not in compliance with the text of the principles, and this was a practical issue which required addressing.
The guidelines should be linked up together to the international legal instruments to be prepared or the existing regulations. The Sub-Commission should not be in haste to submit the document, it should study and perfect it further. In the future, when the guiding principles were submitted to the Human Rights Council, then the Council should monitor and trace the implementation of the principles, and it should be ensured that they were indeed implemented at the national level.
THIERRY VIARD, of International Movement ATD Fourth World, said that the United Nations, since its creation had worked to put an end to the situation of human misery. It was, however, in the 1980s that the Commission on Human Rights was seized of the issue of extreme poverty in view of drawing an appropriate strategy. The Sub-Commission had worked since then on the issue, and had taken the initiative to work directly with the victims themselves. The dialogue with the victims of extreme poverty had taken place in the Social Forum, which had provided an experience to those people who participated in the debate.
BRIGITTE PONOLOVSKY, of International Council of Women, said the Council had participated in the work of the group, and the question of extreme poverty was very interesting and important. The organization had devoted efforts to the question and had sought to find solutions for the eradication of extreme poverty, which was one of the Millennium Development Goals. It was essential that something be produced by the Sub-Commission to help the work of the organization.
LAZARO PARY, of Indian Movement "Tupaj Amaru", said that it was important that at the United Nations, poor people themselves came to discuss their poverty. Poverty was not a theory, it was a fact and an international and global scourge that affected both rich and poor countries, as well as the transition countries. Until the just and equitable distribution of wealth was solved, there could be no solution to extreme poverty. Corruption was a scourge. Under the pretext of globalisation and the opportunities arising therefrom, extreme poverty and corruption had appeared at every level, including that of non-governmental organizations.
JOSE BENGOA, Sub-Commission Expert, concluding the debate on the report, said that he accepted the fact that the report should be reviewed in light of the comments made during the debate. And many speakers had expressed their views that the working group should review the report. A consolidated text of a resolution would also be submitted to the Sub-Commission. Since the Commission on Human Rights requested the study, the report should be sent to the successor body – the Human Rights Council. There were several topics that had emerged during the study, such as the issue of women and extreme poverty. Some articles that were removed from the document should also be put back. The issue of “full citizenship”, which had been alluded to during the discussion would be taken into account by authors and they provided further elaboration on the issue. The five members of the group that drafted the report would include the views expressed by other Experts of the Sub-Commission.
Report on Transnational Corporations and Human Rights
The report (A/HRC/Sub.1/58/11) of the sessional Working Group on the working methods and activities of transnational corporations on its eighth session notes that the Group held two public meetings for the eighth session on 8 and 10 August 2006. The discussion of the Working Group focused on how to ensure the implementation of the norms on the responsibilities of transnational corporations and other business enterprises with regards to human rights, adopted by the Sub-Commission in 2003. Two experts presented working papers on the issue of bilateral and multilateral economic agreements and their impact on human rights of the beneficiaries and on the issue of the role of the State in the guarantee of human rights with reference to the activities of transnational corporations and other business entities. The Working Group also discussed its input and recommendations concerning implementation by the Sub-Commission of Human Rights Council decision 2006/106.
Statements on Transnational Corporations and Human Rights
GASPAR BIRO, Sub-Commission Expert, introducing his working paper entitled the role of the State in the guarantee of human rights with reference to the activities of transnational corporations and other business entities (A/HRC/ /Sub.1/58/CRP.12), said a useful and inspiring discussion had been held in the Working Group on the working methods and activities of transnational corporations last week. The direct inspiration for the working paper last year was a report by the Office of the High Commissioner for Human Rights on the same topic which concluded in one of its paragraphs that many of the issues identified in the report required separate study. The Working Group had thought it would be useful to elaborate on concepts such as the inability or unwillingness of States to intervene in cases of human rights violations by transnational corporations. The concept of unwillingness required further discussion, as it was far from having been clarified.
After the working paper was begun, the Special Representative of the United Nations Secretary-General had issued his interim report on this subject, which dealt in many paragraphs and parts with the role of the State. The final report of the Special Representative would include a list of best practices with regards to the responsibilities of States in the context of the activities of transnational corporations, and this would be very useful. If the working paper was to be continued, one of the directions to follow would be looking for case studies: well-documented cases where the issue of complicity, unwillingness or inability of the State to react had been covered. There had been a discussion of competition and its relation to direct foreign investment.
EL-HADJI GUISSE, Sub-Commission Expert, said the working paper by Mr. Biro should have been presented next to the one on transnational corporations. The working paper just presented referred to the work already done by the sessional Working Group on transnational corporations. Such practice would water down the efforts of the Working Group, which had been working on the issue for the last eight years.
Introducing the report of the Working Group on the working methods and activities of transnational corporations on its eighth session (A/HRC/Sub.1/58/11), Mr. Guissé said the Working Group had met twice this year and discussed ensuring the implementation of the rules on the responsibilities of transnational corporations and other business enterprises with regards to human rights. The Working Group also considered the responsibility of States in the implementation of the human rights of individuals. The Working Group was meeting next year to continue its agenda on the rights of the individual. Despite the assumption of responsibility by States, it was observed that the human rights of the individual had been violated. The States should honour their responsibility in guaranteeing the human rights of individuals. It had been reported that corruption was a source of human rights violation and the right to development. The members of the Sub-Commission should continue to work on the improvement of the report.
CHIN-SUNG CHUNG, Sub-Commission Expert, introducing the working paper prepared for the working group on transnational corporations entitled “bilateral and multilateral economic agreements and their impact on the human rights of the beneficiaries” (A/HRC/Sub.1/58/CRP.8), said the paper started with the acknowledgement of the expansion of international and bilateral agreements and the importance of the transnational corporations in those agreements, with the creation of various regional and bilateral economic agreements, which did not have a control mechanism and were remote from public scrutiny, with little room for human rights discourse. The problem was the unequal nature of globalisation, with the race by poor countries to attract investment, resulting in positive elements such as the expansion of the market and increased capital flow, but also the negative results of giving enormous power to the transnational corporations, and a limiting of human rights, in particular with regards to the rights to employment, decent housing, and health, among others.
The transnational corporations should protect human rights, but they also had financial and economic obligations. The Sub-Commission could recommend the invoking of States’ responsibilities as enshrined in the United Nations Charter and United Nations Convention on Human Rights. There should be a further assessment of human rights in this context, and the Working Group could do this in the future. Extra-territorial application of legal standards to transnational corporation was a difficult issue. The responsibility of non-State actors should be highlighted through international human rights instruments. Most norms and standards were of a voluntary nature, and this should instead be incorporated into international economic agreements. Increasing accountability and participation would also be a significant advantage, and non-governmental organizations and civil society should be involved in this process.
JOSE BENGOA, Sub-Commission Expert, said that starting in 1990s, particularly with the Washington Consensus, international organizations advocated for less State role, which was a mistake. The responsibility of States was important in all aspects. States should regulate the activities and working methods of transnational corporations. The responsibility of States was directly related to the activities of the transnationals. The issue of responsibility of non-state actors with regard to human rights should be stressed. The question had already been dealt with in the Sub-Commission and it was not new. The Commission on Human Rights did not have a good reaction to that issue and the documents sent to it had not been taken up wholly. The issue was today a serious one and further emphasis should be made.
FRANCOISE JANE HAMPSON, Sub-Commission Expert, said Ms. Chung and Mr. Bengoa had raised two fundamental questions of international law which were involved in the issue under consideration. It seemed that one of the important roles of the Sub-Commission was to serve as a marketplace for ideas, where people could exchange ideas that worked, and test them in their own environment. One dimension seemed to be missing from the work of the Working Group, and that was that denunciation of the lack of progress at the international level had replaced the exchange of ideas. Transnational corporations were subject to national law, and the States in which they operated had international obligations to protect people from harm. The responsibility of States was not an abstract. The solution wasn’t to make non-State actors responsible in international law, and the Sub-Commission should not favour this. The only judicial institutions capable of acting coercively existed at the State level. There was existing case law at the national level, at the regional level and at the international level which explained how States could be called to account.
It was clear, internationally and according to case law of regional mechanisms, that States required law, practices and regulations in order to protect people from harm at the hands of third parties, and needed to implement these. Under human rights law, the State was responsible if it did not take effective action. It was possible to raise these issues now and during periodic reviews at the treaty body level. There was a very real difficulty in the conflict between two different standards in international law, one a human rights standard, and the other from elsewhere in international law. An example was the relation between intellectual property rights and human rights. In some exceptional cases, it was possible to resolve such a conflict by resorting to jus cogens. But there was a need for another tool to resolve situations where jus cogens did not apply. An idea worth exploring was that the United Nations Charter represented the rules necessary for an international society to function. There was a close link between the delivery of human rights and the declining incidence of threats to international peace and security.
EMMANUEL DECAUX, Sub-Commission Expert, said the standards on transnational corporations norms should be maintained and implemented. A number of international organizations had been participating in drafting international standards on the responsibility of international corporations. The debate taking place in the Working Group on the activities of the transnational corporations had been fruitful and any other debate in other instances would be counter productive. Legal approach on human rights should be sought with regard to the activities of those corporations. Dialogue and synergy should be encouraged in the Sub-Commission’s debate.
SOLI JEHANGIR SORABJEE, Sub-Commission Expert, said it was unfortunate that Mr. Guissé thought there were some principles in Mr. Biro’s text which watered down the principles in his own text, and thought that this was possibly due to a misunderstanding. The first thing Mr. Biro should explore was the so-called unwillingness of a State to fulfil its human rights obligations. Transnational corporations had to operate within the laws of the State in which they operated, and this included human rights with regards to the environment. The responsibility of States with regards to the transnational corporations could not be abdicated.
On the responsibility of non-State actors, the question was who were these non-state actors, how they were identified and defined, and this could require a special study. However, domestic public law should be applied to them. Solutions were not to make transnational corporations liable internationally, but to encompass them within national law, as it was the primary and basic responsibility of States to protect the rights of its citizens.
IBRAHIM SALAMA, Sub-Commission Expert, said that an evolution in international public law should not be anticipated with regard to norms concerning the issue of transnational corporations. National legislation should be the basis for the international legal system with regard to non-State actors. All international corporations were not operating negatively; there were some that generated job opportunities to many people. The State should be held responsible for the implementation of national legislation concerning the transnational corporations. The future body replacing the Sub-Commission should reflect on filling the legal gap that should apply to those corporations.
JOSE BENGOA, Sub-Commission Expert, said it was important to flag differences and areas of agreement. In the resolution, agreement should be reached on this matter. Ms. Hampson and Mr. Salama had said stress needed to be placed on national domestic law, and 20 years from now the Sub-Commission might not have managed to resolve the question of non-State actors. However, pressure should be exercised in this respect. Non-State actors should be bound under national law to have responsibilities and to establish appropriate norms and standards. The standards in the home country should be applied in affiliates when it came to environmental issues, for example. The national State had the capacity to compel a transnational corporation to apply the same standards as in other countries, albeit maybe not directly.
This was a central issue for the future. There was a close relation between international relations and the issue of transnational corporations size, as small countries often found it difficult to deal with vast corporations. The Human Rights Council should be informed that this issue was open, and it needed to be further discussed in many other bodies, and that it would remain a central issue on the human rights agenda.
ANTOANELLA-IULIA MOTTOC, Sub-Commission Expert, said there had been a misunderstanding between the Sub-Commission and the Commission on Human Rights with regard to transnational corporations. Time had now evolved and the international legal system should protect the human rights of individuals from the negative activities of these corporations. It was assumed that domestic norms could be applied with regard to the enterprises; however, there were laws that were not efficiently developed, particularly in the developing countries. With respect to the hierarchy of the norms, it was evident that the UN Charter prevailed, however, following some incidents there had been critical approach as to the deficiency of the Charter in some aspects. Prevalence should be given to human rights norms.
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For use of the information media; not an official record
and Protection of Human Rights
16 August 2006
Discusses Reports on Transnational Corporations and Extreme Poverty
The Sub-Commission on the Promotion and Protection of Human Rights this morning continued its consideration of the question of economic, social and cultural rights, discussing reports on transnational corporations and extreme poverty.
Sub-Commission Expert El-Hadji Guisse, introducing the report of the Working Group on the working methods and activities of transnational corporations on its eighth session, said the Working Group had discussed ensuring the implementation of the rules on the responsibilities of transnational corporations and other business enterprises with regards to human rights. The Working Group also considered the responsibility of States in the implementation of the human rights of individuals.
Sub-Commission Expert Gaspar Biro, introducing his working paper on the role of the State in the guarantee of human rights with reference to the activities of transnational corporations and other businesses, said the Working Group had thought it would be useful to elaborate on concepts such as the inability or unwillingness of States to intervene in cases of human rights violations by transnational corporations. If the working paper was to be continued, one of the directions to follow would be looking for case studies: well-documented cases where the issue of complicity, unwillingness or inability of the State to react had been covered.
Chin-Sung Chung, Sub-Commission Expert, introducing the working paper prepared for the Working Group on transnational corporations on bilateral and multilateral economic agreements and their impact on the human rights of the beneficiaries, said the problem was the unequal nature of globalisation, with the race by poor countries to attract investment, resulting in positive elements such as the expansion of the market and increased capital flow, but also the negative results of giving enormous power to the transnational corporations, and a limiting of human rights, in particular with regards to the rights to employment, decent housing, and health, among others.
At the beginning of the meeting, a number of Sub-Commission Experts addressed the report of the Ad Hoc Group on the need to develop guiding principles on the implementation of existing human rights norms and standards in the context of the fight against extreme poverty, which was presented to the Sub-Commission yesterday. The summary of the report and the first part of the discussion can be found in press release HR/SC/06/8 of 15 August.
Taking the floor this morning were Sub-Commission Experts Emmanuel Decaux, Chin-Sung Chung, Vladimir Kartashkin, Yozo Yokota, Kalliopi Koufa, El-Hadji Guisse, Christy Mbono, Chen Shiqiu, Gaspar Biro, Jose Bengoa, Françoise Jane Hampson, Soli Jehangir Sorabjee, Ibrahim Salama and Antoanella-Iulia Motoc.
Also speaking were the representatives of International Movement ATD Fourth World, International Council of Women and Indian Movement Tupaj Amaru.
The next plenary of the Sub-Commission will be held this afternoon at 3 p.m. when it will conclude its debate on economic, social and cultural rights and take up its agenda item on specific human rights issues.
Statements on Human Rights and Extreme Poverty
EMMANUEL DECAUX, Sub-Commission Expert, said with regards to the organisation of work, the Sub-Commission had always stressed coordination with other bodies, and this week the Committee on the Elimination of Racial Discrimination was holding its session, and the Sub-Commission had always had a productive relationship with that body, and there should be official contact between the two bodies this year as well. It would also be very useful for the Chairman to send a letter to the President of the International Law Commission to reaffirm the interest of the Sub-Commission in participating in future seminars.
With regards to Mr. Bengoa’s report presented at the previous meeting, the substantive work was done openly and in consultation with non-governmental organizations and the report should be one of the outstanding results of the Sub-Commission’s work this year. The exercise had begun a long time ago. It was important for this Working Group to continue its work. With regards to the principles contained within the report, the priority was the effectiveness of human rights, which could not be abstract, but had to be real and effective rights for all, and this implied access to these rights, and none could be excluded. These rights were also indivisible. When analysing the effect of extreme poverty on human rights, it became clear that all human rights were affected. The point was to recognise the dignity of every human being, even if they were in a situation of marginalisation or stigmatisation. Collective rights, such as the right to development, should be a priority of the international community, but the situation of the individual should not be ignored. The struggle could not be conducted in a paternalistic manner: there had to be participation of those concerned, and an effort made to respond to their needs and particularities, rather than having globalisation which crushed individuals and peoples.
CHIN-SUNG CHUNG, Sub-Commission Expert, said the issue of women and extreme poverty had been treated in the report along with other categories of vulnerable groups, while the guidelines on extreme poverty stressed the need to see the issue separately. Stigmatization by extreme poverty was a source of concern and that vicious circle should be cut.
VLADIMIR KARTASHKIN, Sub-Commission Expert, said the document submitted after the work of the Group of Experts was very useful, and covered the rights of people living in extreme poverty. It deserved approval by the Council, but reading it, a number of questions arose, and the speaker agreed with Mr. Alfredsson as to who held the rights referred to in the document, namely, did it apply to only persons living in poverty, or all human beings. Should those living in poverty be given more rights, thanks to positive discrimination, or should they only hold the same rights as everybody else, the speaker asked. With regards to paragraph 14, the translation was not always perfect, and it was difficult to translate things, and the Russian and English text referred to “full citizenship”, and Mr. Kartashkin wondered what this meant. The paragraph did not answer his questions.
Some of the text gave rise to doubts, particularly as regarded certain provisions, in particular as there were questions as to whether people living in poverty had the same rights as other citizens. The position of the authors on this issue should be reflected somewhere in the document. The international community was developing, and therefore international legislation would continue to develop. Some States committed more refined violations of rights and of international law than others. The document was very good, but the speaker agreed with Mr. Decaux, and the Working Group had to have another look at the text and be very careful from the legal point of view. The text should be examined to remove discrepancies, and then the text could be sent to the Human Rights Council.
YOZO YOKOTA, Sub-Commission Expert, said that the basic assumption of the report as well as the guiding principles was the rights-based approach. That approach was compared to the usual approach to the issue of poverty, which was development. The difference between the rights-based approach and the developmental approach was that the rights-based approach considered extreme poverty as a human rights violation and therefore should be addressed immediately while the developmental approach addressed the issue of poverty as an economic issue and tried to solve it through economic development over several years. Through direct contacts with persons living in extreme poverty, it was found that those persons were deprived of practically all human rights, whether civil, political or economic, social and cultural. They were suffering daily from the deprivation of basic human rights and fundamental freedoms and even human dignity. Those hundreds of millions of people in extreme poverty were politically and socially isolated, daily suffering from hunger, thirst, ill health, loss of dignity, self-confidence and hope. Extreme poverty was not only an economic development issue but also a priority issue of human rights.
Any effort to address the issue of extreme poverty should reflect the views of the persons living in such a situation. Any policy formulation and its implementation should be carried out by full and effective participation of the representatives of the persons living in extreme poverty. Participation by the poor was a sine quo non for successful poverty eradication programmes. Since the persons in extreme poverty were deprived of all basic human rights and fundamental freedoms that were inseparable and indivisible, any policy, programme or activity to eradicate poverty should take a holistic approach. The drafting guiding principles were necessary for encouraging and empowering the poor to stand up and try with self-confidence and dignity to solve their own problems and difficulties accompanying extreme poverty by themselves.
KALLIOPI KOUFA, Sub-Commission Expert, said an excellent job had been done on this complex issue. Extreme poverty was among the most important challenges facing the modern world and national and international efforts to eradicate it should remain high on the human rights agenda of all. Mr. Decaux’s observations regarding methodology to revise, trim and improve the text were supported. The clarifications and underlining of the basic currents of the report was also appreciated. The suggestion in paragraph 25 that concerted efforts should be made to set in place a mechanism on the zones of extreme poverty and the conclusion in paragraph 32 about the rights approach to cover the responsibilities and duties of all stakeholders, in particular States, were both supported.
The draft guideline principles were very interesting, and Ms. Koufa said she was very much in favour of the standard-setting role of the Sub-Commission.
EL-HADJI GUISSE, Sub-Commission Expert, said the work done by the group might lead to a legally binding norm. The group that prepared the report on extreme poverty and human rights had seen the situation of extreme poverty from the biological rights angle in which the individual had the right to eat and drink and maintain a healthy body. The problem of food and shelter had been widely discussed in the report and other seminars organized for that purpose. States had the obligations to ensure that the individuals enjoyed at least their natural rights. The individual could take legal action saying that he or she did not have food. However, the State should enforce its legal systems to ensure that individuals were enjoying their rights. The world was increasingly producing victims of discrimination and violations. Pharmaceutical manufacturers, for example, refused to provide patent rights to others to produce cheap medicine that would have saved the lives of millions of people. That egoistic attitude was unacceptable.
CHRISTY EZIM MBONU, Sub-Commission Expert, said there should be a strong linkage between corruption and extreme poverty, as she had established in her papers, as the former engendered the latter. The text should contain a reference to this fact. One of the seminars should have been held in Africa, as it was the continent in which the situation was often most grave, as there was drought and conflict. Eight European Union countries had ratified the Convention against Corruption, and this should be put on record.
YOZO YOKOTA, Sub-Commission Expert, reacting to Ms. Mbono’s intervention, said that the seminar should have taken place in Africa for the group that prepared the report on extreme poverty and human rights. Conferences had been organized in Asia and Latin America on the issue of leprosy. The concern of organizing a workshop in Africa was taken well and such a workshop would take place in the future.
SHIQIU CHEN, Sub-Commission Expert, said Mr. Bengoa was to be thanked for his submission of such an excellent document. The report and the guiding principles on the existing implementation of human rights norms and standards were self-evident. He had two issues with the text of the report itself: many paragraphs and articles concerned legal issues, judicial issues, and issues of representation; and the guiding principles articles did not have a strict legal binding effect. Mr. Chen believed that if the Sub-Commission was to implement effectively the guiding principles, they should be closely linked up to national legal conditions and judicial provisions. Countries were required in the report to take special measures, but this was not enough. If the guiding principles were in conflict with the laws of countries, then the latter would act in compliance with their laws, but not in compliance with the text of the principles, and this was a practical issue which required addressing.
The guidelines should be linked up together to the international legal instruments to be prepared or the existing regulations. The Sub-Commission should not be in haste to submit the document, it should study and perfect it further. In the future, when the guiding principles were submitted to the Human Rights Council, then the Council should monitor and trace the implementation of the principles, and it should be ensured that they were indeed implemented at the national level.
THIERRY VIARD, of International Movement ATD Fourth World, said that the United Nations, since its creation had worked to put an end to the situation of human misery. It was, however, in the 1980s that the Commission on Human Rights was seized of the issue of extreme poverty in view of drawing an appropriate strategy. The Sub-Commission had worked since then on the issue, and had taken the initiative to work directly with the victims themselves. The dialogue with the victims of extreme poverty had taken place in the Social Forum, which had provided an experience to those people who participated in the debate.
BRIGITTE PONOLOVSKY, of International Council of Women, said the Council had participated in the work of the group, and the question of extreme poverty was very interesting and important. The organization had devoted efforts to the question and had sought to find solutions for the eradication of extreme poverty, which was one of the Millennium Development Goals. It was essential that something be produced by the Sub-Commission to help the work of the organization.
LAZARO PARY, of Indian Movement "Tupaj Amaru", said that it was important that at the United Nations, poor people themselves came to discuss their poverty. Poverty was not a theory, it was a fact and an international and global scourge that affected both rich and poor countries, as well as the transition countries. Until the just and equitable distribution of wealth was solved, there could be no solution to extreme poverty. Corruption was a scourge. Under the pretext of globalisation and the opportunities arising therefrom, extreme poverty and corruption had appeared at every level, including that of non-governmental organizations.
JOSE BENGOA, Sub-Commission Expert, concluding the debate on the report, said that he accepted the fact that the report should be reviewed in light of the comments made during the debate. And many speakers had expressed their views that the working group should review the report. A consolidated text of a resolution would also be submitted to the Sub-Commission. Since the Commission on Human Rights requested the study, the report should be sent to the successor body – the Human Rights Council. There were several topics that had emerged during the study, such as the issue of women and extreme poverty. Some articles that were removed from the document should also be put back. The issue of “full citizenship”, which had been alluded to during the discussion would be taken into account by authors and they provided further elaboration on the issue. The five members of the group that drafted the report would include the views expressed by other Experts of the Sub-Commission.
Report on Transnational Corporations and Human Rights
The report (A/HRC/Sub.1/58/11) of the sessional Working Group on the working methods and activities of transnational corporations on its eighth session notes that the Group held two public meetings for the eighth session on 8 and 10 August 2006. The discussion of the Working Group focused on how to ensure the implementation of the norms on the responsibilities of transnational corporations and other business enterprises with regards to human rights, adopted by the Sub-Commission in 2003. Two experts presented working papers on the issue of bilateral and multilateral economic agreements and their impact on human rights of the beneficiaries and on the issue of the role of the State in the guarantee of human rights with reference to the activities of transnational corporations and other business entities. The Working Group also discussed its input and recommendations concerning implementation by the Sub-Commission of Human Rights Council decision 2006/106.
Statements on Transnational Corporations and Human Rights
GASPAR BIRO, Sub-Commission Expert, introducing his working paper entitled the role of the State in the guarantee of human rights with reference to the activities of transnational corporations and other business entities (A/HRC/ /Sub.1/58/CRP.12), said a useful and inspiring discussion had been held in the Working Group on the working methods and activities of transnational corporations last week. The direct inspiration for the working paper last year was a report by the Office of the High Commissioner for Human Rights on the same topic which concluded in one of its paragraphs that many of the issues identified in the report required separate study. The Working Group had thought it would be useful to elaborate on concepts such as the inability or unwillingness of States to intervene in cases of human rights violations by transnational corporations. The concept of unwillingness required further discussion, as it was far from having been clarified.
After the working paper was begun, the Special Representative of the United Nations Secretary-General had issued his interim report on this subject, which dealt in many paragraphs and parts with the role of the State. The final report of the Special Representative would include a list of best practices with regards to the responsibilities of States in the context of the activities of transnational corporations, and this would be very useful. If the working paper was to be continued, one of the directions to follow would be looking for case studies: well-documented cases where the issue of complicity, unwillingness or inability of the State to react had been covered. There had been a discussion of competition and its relation to direct foreign investment.
EL-HADJI GUISSE, Sub-Commission Expert, said the working paper by Mr. Biro should have been presented next to the one on transnational corporations. The working paper just presented referred to the work already done by the sessional Working Group on transnational corporations. Such practice would water down the efforts of the Working Group, which had been working on the issue for the last eight years.
Introducing the report of the Working Group on the working methods and activities of transnational corporations on its eighth session (A/HRC/Sub.1/58/11), Mr. Guissé said the Working Group had met twice this year and discussed ensuring the implementation of the rules on the responsibilities of transnational corporations and other business enterprises with regards to human rights. The Working Group also considered the responsibility of States in the implementation of the human rights of individuals. The Working Group was meeting next year to continue its agenda on the rights of the individual. Despite the assumption of responsibility by States, it was observed that the human rights of the individual had been violated. The States should honour their responsibility in guaranteeing the human rights of individuals. It had been reported that corruption was a source of human rights violation and the right to development. The members of the Sub-Commission should continue to work on the improvement of the report.
CHIN-SUNG CHUNG, Sub-Commission Expert, introducing the working paper prepared for the working group on transnational corporations entitled “bilateral and multilateral economic agreements and their impact on the human rights of the beneficiaries” (A/HRC/Sub.1/58/CRP.8), said the paper started with the acknowledgement of the expansion of international and bilateral agreements and the importance of the transnational corporations in those agreements, with the creation of various regional and bilateral economic agreements, which did not have a control mechanism and were remote from public scrutiny, with little room for human rights discourse. The problem was the unequal nature of globalisation, with the race by poor countries to attract investment, resulting in positive elements such as the expansion of the market and increased capital flow, but also the negative results of giving enormous power to the transnational corporations, and a limiting of human rights, in particular with regards to the rights to employment, decent housing, and health, among others.
The transnational corporations should protect human rights, but they also had financial and economic obligations. The Sub-Commission could recommend the invoking of States’ responsibilities as enshrined in the United Nations Charter and United Nations Convention on Human Rights. There should be a further assessment of human rights in this context, and the Working Group could do this in the future. Extra-territorial application of legal standards to transnational corporation was a difficult issue. The responsibility of non-State actors should be highlighted through international human rights instruments. Most norms and standards were of a voluntary nature, and this should instead be incorporated into international economic agreements. Increasing accountability and participation would also be a significant advantage, and non-governmental organizations and civil society should be involved in this process.
JOSE BENGOA, Sub-Commission Expert, said that starting in 1990s, particularly with the Washington Consensus, international organizations advocated for less State role, which was a mistake. The responsibility of States was important in all aspects. States should regulate the activities and working methods of transnational corporations. The responsibility of States was directly related to the activities of the transnationals. The issue of responsibility of non-state actors with regard to human rights should be stressed. The question had already been dealt with in the Sub-Commission and it was not new. The Commission on Human Rights did not have a good reaction to that issue and the documents sent to it had not been taken up wholly. The issue was today a serious one and further emphasis should be made.
FRANCOISE JANE HAMPSON, Sub-Commission Expert, said Ms. Chung and Mr. Bengoa had raised two fundamental questions of international law which were involved in the issue under consideration. It seemed that one of the important roles of the Sub-Commission was to serve as a marketplace for ideas, where people could exchange ideas that worked, and test them in their own environment. One dimension seemed to be missing from the work of the Working Group, and that was that denunciation of the lack of progress at the international level had replaced the exchange of ideas. Transnational corporations were subject to national law, and the States in which they operated had international obligations to protect people from harm. The responsibility of States was not an abstract. The solution wasn’t to make non-State actors responsible in international law, and the Sub-Commission should not favour this. The only judicial institutions capable of acting coercively existed at the State level. There was existing case law at the national level, at the regional level and at the international level which explained how States could be called to account.
It was clear, internationally and according to case law of regional mechanisms, that States required law, practices and regulations in order to protect people from harm at the hands of third parties, and needed to implement these. Under human rights law, the State was responsible if it did not take effective action. It was possible to raise these issues now and during periodic reviews at the treaty body level. There was a very real difficulty in the conflict between two different standards in international law, one a human rights standard, and the other from elsewhere in international law. An example was the relation between intellectual property rights and human rights. In some exceptional cases, it was possible to resolve such a conflict by resorting to jus cogens. But there was a need for another tool to resolve situations where jus cogens did not apply. An idea worth exploring was that the United Nations Charter represented the rules necessary for an international society to function. There was a close link between the delivery of human rights and the declining incidence of threats to international peace and security.
EMMANUEL DECAUX, Sub-Commission Expert, said the standards on transnational corporations norms should be maintained and implemented. A number of international organizations had been participating in drafting international standards on the responsibility of international corporations. The debate taking place in the Working Group on the activities of the transnational corporations had been fruitful and any other debate in other instances would be counter productive. Legal approach on human rights should be sought with regard to the activities of those corporations. Dialogue and synergy should be encouraged in the Sub-Commission’s debate.
SOLI JEHANGIR SORABJEE, Sub-Commission Expert, said it was unfortunate that Mr. Guissé thought there were some principles in Mr. Biro’s text which watered down the principles in his own text, and thought that this was possibly due to a misunderstanding. The first thing Mr. Biro should explore was the so-called unwillingness of a State to fulfil its human rights obligations. Transnational corporations had to operate within the laws of the State in which they operated, and this included human rights with regards to the environment. The responsibility of States with regards to the transnational corporations could not be abdicated.
On the responsibility of non-State actors, the question was who were these non-state actors, how they were identified and defined, and this could require a special study. However, domestic public law should be applied to them. Solutions were not to make transnational corporations liable internationally, but to encompass them within national law, as it was the primary and basic responsibility of States to protect the rights of its citizens.
IBRAHIM SALAMA, Sub-Commission Expert, said that an evolution in international public law should not be anticipated with regard to norms concerning the issue of transnational corporations. National legislation should be the basis for the international legal system with regard to non-State actors. All international corporations were not operating negatively; there were some that generated job opportunities to many people. The State should be held responsible for the implementation of national legislation concerning the transnational corporations. The future body replacing the Sub-Commission should reflect on filling the legal gap that should apply to those corporations.
JOSE BENGOA, Sub-Commission Expert, said it was important to flag differences and areas of agreement. In the resolution, agreement should be reached on this matter. Ms. Hampson and Mr. Salama had said stress needed to be placed on national domestic law, and 20 years from now the Sub-Commission might not have managed to resolve the question of non-State actors. However, pressure should be exercised in this respect. Non-State actors should be bound under national law to have responsibilities and to establish appropriate norms and standards. The standards in the home country should be applied in affiliates when it came to environmental issues, for example. The national State had the capacity to compel a transnational corporation to apply the same standards as in other countries, albeit maybe not directly.
This was a central issue for the future. There was a close relation between international relations and the issue of transnational corporations size, as small countries often found it difficult to deal with vast corporations. The Human Rights Council should be informed that this issue was open, and it needed to be further discussed in many other bodies, and that it would remain a central issue on the human rights agenda.
ANTOANELLA-IULIA MOTTOC, Sub-Commission Expert, said there had been a misunderstanding between the Sub-Commission and the Commission on Human Rights with regard to transnational corporations. Time had now evolved and the international legal system should protect the human rights of individuals from the negative activities of these corporations. It was assumed that domestic norms could be applied with regard to the enterprises; however, there were laws that were not efficiently developed, particularly in the developing countries. With respect to the hierarchy of the norms, it was evident that the UN Charter prevailed, however, following some incidents there had been critical approach as to the deficiency of the Charter in some aspects. Prevalence should be given to human rights norms.
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